Comparison with rules in adjacent states
Iowa:
Appointment: Appellate courts appoint the State Appellate Defender. At the trial court level, the State Public Defender files a notice with a district court clerk in each county served by the public defender designating which local public defender office shall receive notice of appointment of cases. This designee shall be appointed by the court to represent all the eligible indigents in all of the cases and proceedings specified in the designation. The State Public Defender may notify the trial court that the public defender designee will not provide legal representation in certain cases. The State Public Defender may contract with private attorneys and nonprofit organizations for the provision of legal services to indigent persons.
Certification/Standards for Private Attorneys: The State Public Defender may confer with judges, attorneys and others having knowledge about the attorney's competence, effectiveness, trustworthiness and ability to provide services. Also, the State Public Defender may conduct additional investigation as deemed warranted. The information received may be considered when deciding to award an initial contract or renew a contract for legal services with a private attorney.
Illinois:
Appointment: Appeals are appointed by the appellate court to the State Appellate Defender. Trial court judges appoint the local public defender office.
Certification/Standards for Private Attorneys: Appellate cases: An attorney licensed to practice law in Illinois who has prior criminal appellate experience or an attorney who is a member or employee of a law firm which has at least one member with that experience may submit a bid to the State Appellate Defender to receive cases. Prospective bidders must furnish legal writing samples that are deemed acceptable to the State Appellate Defender. Trial cases: No written qualifications and standards or on-going legal education requirements were found.
Michigan:
Appointment: Appellate courts determine eligibility and appoint the State Appellate Defender Office to cases. The trial courts determine eligibility and appoint local public defense agencies to represent the indigent.
Certification/Standards for Private Attorneys: The State Appellate Defender Office has initial qualification requirements and on-going training requirements. The trial courts vary by county as to qualifications and on-going training requirements. For example, Wayne County (Detroit) appoints the Legal Aid and Defender of Detroit and does not appear to have published qualification standards or on-going training requirements for private attorneys who wish to be appointed to public defender cases. Oakland County (Pontiac) inquires about criminal law experience and education and requests the names of judges and attorneys for references as part of the initial qualification. Also, Oakland County requires private attorneys to agree to attend on-going training related to criminal law. Macomb County (Mt. Clemons) has an Indigent Assignment List Selection Committee that reviews attorney applications and assigns attorneys to a level. An attorney must apply to this Committee to move to a higher level. Also, Macomb County requires annual training of one continuing legal education credit or three mini-seminars relating to criminal law.
Minnesota:
Appointment: The trial and appellate courts appoint cases. The trial court judge appoints the district public defenders' offices in the jurisdiction in which the charge is filed. There are ten judicial districts in Minnesota. The district public defender cannot be required to make the eligibility determination or investigate the availability of assets. If a conflict of interest or other situation exists, the court can appoint to private attorneys who have contracts for appointments with the district public defender's office.
Certification/Standards for Private Attorneys: The Chief Public Defender in each of the districts reviews the qualifications of a private attorney who applies for a contract to accept appointments of public defender cases. There are no published standards for that review.
Summary of factual data and analytical methodologies
None.
Analysis and supporting documents used to determine effect on small business
None.
Small Business Impact
None.
Fiscal Estimate
No fiscal estimate is required.
Agency Contact Person
Marla Stephens
315 N. Henry Street, 2nd Floor
P.O. Box 7923, Madison, Wisconsin 53707-7923
Phone: 414.227.4891
Notice of Hearing
Public Defender Board
NOTICE IS HEREBY GIVEN that pursuant to ss.
51.60,
51.605,
55.105,
55.107,
977.02 (2m),
(3),
(4m) and
(4r), and
977.075 Stats., the State Public Defender (SPD) will hold a public hearing to consider the proposed order to revise Chapters
PD 2,
3, and
6, relating to representation by the state public defender of persons detained under Ch.
51 or
55, Stats., or subject to involuntary administration of psychotropic medication without a predetermination of financial eligibility.
Hearing Information
SPD will hold a public hearing at the time and place shown below.
November 30, 2009
10:00 a.m. to Noon
SPD Administrative Office, Banoul Conference Room
315 N. Henry Street, 2nd Floor
Madison, Wisconsin 53703
Handicap accessibility is in the rear of the building. If you require communication accommodation at the hearing, please call Marla Stephens, (414) 227-4891, at least 10 days prior to the hearing date.
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to attend the hearing and comment on the proposed rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Monday, December 7, 2009. Written comments should be addressed to: Marla Stephens, SPD, PO Box 7923, Madison, WI 53707-7923, or by email:
stephensm@opd.wi.gov.
Copies of Proposed Rule
Analysis Prepared by the State Public Defender Board
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
977.02 (2m) allows the state public defender board to promulgate rules regarding eligibility for legal services for persons who are entitled to be represented by counsel without a determination of indigency. Sections
977.02 (4m) and
977.075 allow for the state public defender board to establish rules setting the maximum amount a person subject to 51.605 or 55.107 must pay as reimbursement for legal services. Section
977.02 (4r) allows the state public defender board to promulgate rules that establish procedures to provide the department of administration with any information concerning collection of payments.
Related statute or rule
The proposed rules implement statutory changes relating to the appointment of counsel without a determination of indigency and the payment for representation in chapter 51 and 55 cases. Similar statutes include ss.
48.23 (4) and
938.23 (4) relating to the appointment of counsel in juvenile cases without a determination of indigency. Other similar statutes and rules include ss.
48.275,
938.275 and
977.075 and chapter PD 6 related to the payment for representation in chapter 48 and 938 cases.
Plain language analysis
The proposed rules implement the statutory changes that became effective July 1, 2008, affecting the state public defender's office in proceedings under chapters 51 and 55, Stats. The specific actions proposed include:
•
Removing the requirement of a finding of financial eligibility by the state public defender before legal counsel is appointed for chapter 51 and 55 clients
•
Removing the client's prepayment options for chapter 51 and 55 case types
•
Creating a new rule for reimbursement rates for chapter 51 and 55 case types
•
Requiring reports to the legislature's joint committee on finance and the department of administration regarding the collection of payments ordered under chapter 51 and 55
2007 Wisconsin Act 20 removed the requirement that persons subject to the civil commitment proceedings of chapters 51 or 55 complete a pre-representation indigency evaluation and required the public defender to appoint counsel without a determination of indigency. At the conclusion of the proceeding, the circuit court may inquire as to the person's ability to reimburse the state for the cost of representation. If the court determines that the person is able to reimburse the costs of representation, the court may order reimbursement in an amount not to exceed the maximum amount established by the public defender board, currently in Wisconsin Administrative Code PD 6.01. The court may require the public defender to conduct a determination of indigency and report the results of that determination to the court.
Any reimbursement is made to the clerk of courts for the county where the proceedings took place. The clerk of each county deposits 25% of the reimbursement payments to the county treasury and transmits the remaining 75% to the secretary of the department of administration to be credited in the public defender's private bar and investigator reimbursement appropriation. The clerks of court for each county are required to report to the public defender by January 31 the total amounts of court-ordered reimbursement ordered and paid under chapters 51 and 55 for the previous calendar year. The effective date of these statutory provisions is July 1, 2008.
Comparison with federal regulations
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparisons with rules in adjacent states
For all adjacent states to Wisconsin, if neither the respondent nor others provide counsel for a civil commitment hearing, the respective court appoints counsel for him or her. To compensate the attorneys for their services in the states of Minnesota, Iowa, and Illinois, the applicable court enters an order upon the county to pay the entire fee or such an amount as the respondent is unable to pay. In Michigan, the court compensates appointed counsel from court funds in an amount that is reasonable and based upon time and expenses.
Summary of factual data and analytical methodologies
The proposed rules implement statutory changes that went into effect on July 1, 2008.
Analysis and supporting documents used to determine effect on small business
None.
Small Business Impact
None.
Fiscal Estimate
Summary
These administrative rules conform to statutory changes that took effect on July 1, 2008, having been implemented as part of the State's 2007-09 biennial budget act. The rules will not have any fiscal effect independent of these statutory changes. The statutory changes eliminated the requirement that a respondent in a chapter 51 proceeding or a chapter 55 proceeding complete a financial application before qualifying for representation through the State Public Defender (SPD).
The estimated fiscal effect of the legislation was summarized in the Legislative Fiscal Bureau's Paper Number 621 (May 8, 2007). This paper (at p. 5) reviewed the average cost for chapter 51 and chapter 55 cases and the estimated number of additional cases under these chapters in which the SPD would appoint an attorney. The estimated annual cost to the SPD was $320,500, the amount by which the SPD's budget was increased beginning in fiscal year 2008-2009.
State fiscal effect
None.
Local government fiscal effect
None.
Private sector fiscal effect
None.
Long-range fiscal implications
As noted above, the fiscal effect stems from the statutory changes, not from the administrative rules. The two major factors that may affect the SPD's costs from the statutory changes are 1) the number of chapter 51 and chapter 55 cases and 2) the average costs of providing representation in these cases.
Agency Contact Person
Marla Stephens
315 N. Henry Street, 2nd Floor
P.O. Box 7923, Madison, Wisconsin 53707-7923
Phone: 414.227.4891
Notice of Hearing
