GREEN BAY, WI (WTAQ-WLUK) – A lawsuit brought by eight criminal defendants who want a court to order the state to appoint defense attorneys within two weeks of charges being filed will not be expanded into a class action lawsuit, a judge ruled.
Eight inmates filed suit in Brown County in 2022, asking the judge to force the state to assign attorneys to indigent defendants within two weeks of their first court appearance, or have the charges dismissed.
Since then, the case has been the subject of pre-trial motions and hearings. In September, 2023, the judge rejected the state’s motion to dismiss the case.
The defendants asked Brown County Judge Thomas Walsh to convert the case into a class action lawsuit, which would expand the list of plaintiffs to this group: “All individuals who, after January 1, 2019, have been charged by the State of Wisconsin with a crime that carries a potential term of imprisonment, appeared before a judge for an initial appearance, requested and were found eligible for public defense counsel, yet did not receive public defense counsel within 30 days after their initial appearances solely because the [State Public Defender] failed to appoint an attorney on their behalf.”
One of the requirements to allow class action status is to show ‘commonality’ among the prospective plaintiffs. It is this prong that fails, the judge ruled Tuesday.
Here, too, hypothetical defendants could be considered. One defendant is facing charges in Sawyer County, one is facing charges in Green County, and the other is facing charges in Brown County. All three defendants are eligible for public defense, but have not been appointed an attorney within the thirty days. How can the reasonableness of those delays be determined with common questions? There are too many variables: the county where the charges are being brought; the reputation of the prosecutor; the circuit court branch the case is assigned to; the facts underlying the charge(s); the severity of the charge(s); SPD staff attorney conflicts; the number of private attorneys in the vicinity, their areas of practice, their existing caseloads, and their experience levels; the SPD’s alleged appointment practices and the local SPD office appointing the case; etc. Even if a thirty-day delay was per se unreasonable, what is the final injunctive relief to make every defendant whole on day thirty-one? There are too many “dissimilarities with the proposed class” to generate common answers. There is also no allegation or suggestion in this record that the SPD has an illegal policy in place to delay the appointment of counsel. For these reasons and the additional reasons outlined in Defendant’s brief, the Court concludes Plaintiffs cannot demonstrate the commonality factor.
With that ruling, the case continues with eight plaintiffs. No hearings are currently scheduled, court records show.
Since this lawsuit was filed in 2022, there have been multiple examples of cases delayed by months due to the lack of public defenders. In one case, drug suspect James Grandberry didn’t have his preliminary hearing for more than 14 months after his arrest because an attorney wasn’t appointed for him. Such hearings are supposed to be held within 10 days for suspects in custody. He filed a separate lawsuit, now before the state court of appeals, also asking for cases to be dismissed or suspects released on bond if no attorney can be appointed.
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