2003 - 2004 LEGISLATURE
October 27, 2003 - Introduced by Representatives McCormick, Bies, Coggs, Colon,
Cullen, Gronemus, Hahn, Hebl, Hines, Johnsrud, Krawczyk, Kreibich,
Miller, Ott, Petrowski, Pocan, Richards, Sherman, Shilling, Staskunas,
Taylor, Turner, Van Roy and Weber, cosponsored by Senators Lassa, M.
Meyer, Moore, Risser, Roessler and Wirch. Referred to Committee on
Corrections and the Courts.
AB616,1,12
1An Act to repeal 20.550 (1) (ja), 51.45 (12) (b) 2., 977.07 (2) and 977.08 (2) (d);
2to renumber and amend 967.06;
to consolidate, renumber and amend
351.45 (12) (b) (intro.), 1. and 3.;
to amend 20.550 (1) (f), 20.550 (1) (fb), 51.15
4(9), 51.20 (3), 51.20 (18) (c), 51.35 (1) (e) 1., 51.35 (1) (e) 2. c., 51.45 (12) (c) 2.,
551.45 (13) (b) 2., 51.45 (13) (d), 51.45 (13) (j), 51.45 (16) (c), 55.06 (11) (a), 303.065
6(5) (dm), 809.30 (2) (d), 814.69 (1) (a), 880.33 (2) (a) 2., 973.06 (1) (e), 977.02 (2m),
7977.02 (3), 977.05 (4) (gm), 977.05 (4) (h), 977.05 (4) (i) 4., 977.06 (1) (a), 977.06
8(1m), 977.06 (2) (a), 977.06 (2) (am), 977.07 (1) (a), 977.07 (1) (c), 977.08 (1),
9977.08 (2) (intro.) and 977.085 (3); and
to create 20.550 (1) (j), 20.550 (1) (ja),
1051.60, 55.06 (11) (bm), 967.06 (2) (b) and 977.07 (2g) of the statutes;
relating
11to: indigency determinations and provision of legal services by the State Public
12Defender and making appropriations.
Analysis by the Legislative Reference Bureau
Under current law, the State Public Defender (SPD) provides counsel to
represent people in various legal proceedings, including criminal proceedings that
may result in imprisonment, emergency detention or involuntary civil commitment
proceedings, proceedings for the protective placement of an adult, paternity
determinations, and juvenile delinquency proceedings. The SPD provides counsel
to children regardless of the child's income or assets, but only provides counsel to
adults whom the SPD determines are indigent.
Current law provides that a person is indigent for purposes of SPD
representation if the person's income and assets, after deduction for reasonable and
necessary living expenses, are insufficient to cover the cost of effective legal
representation. Current law equates reasonable and necessary living expenses with
benefit amounts under the former Aid to Families with Dependent Children
program.
However, in determining whether a person can afford counsel, courts are not
limited by the SPD indigency criteria. If a person is the subject of a legal proceeding
for which appointed counsel is a right for persons who cannot afford counsel, and the
person offers proof that he or she cannot afford counsel, the court must
independently review the person's circumstances. If the court finds that the person
cannot afford counsel and does not meet the criteria for SPD appointment, the court
must appoint private counsel and the county in which the court sits must pay the
appointed counsel.
Effective January 1, 2004, this bill changes the criteria for determining
indigency for purposes of SPD representation. Under the bill, a person is indigent
for purposes of SPD representation if he or she meets the financial eligibility criteria
for the Wisconsin Works program (the person's household income does not exceed
115% of the federal poverty line and the person's household assets, after excluding
up to $10,000 for a vehicle and the value of the person's home, do not exceed $2,500),
except that the asset exclusion for a home is limited to $30,000 for SPD
representation.
The bill further requires that counties reimburse the SPD for providing counsel
to persons who qualify as indigent under the bill, but who would not qualify as
indigent under current law. The reimbursement requirement applies to cases for
which the SPD assigns counsel on or after January 1, 2004, and before June 26, 2005.
The bill requires the SPD to charge counties specified amounts based on the type of
case for which counsel is provided, for example, a homicide, a misdemeanor, or a civil
commitment. The bill also provides the State Public Defender Board position
authority to hire 44.25 full-time equivalent positions on January 1, 2004, to be
funded from the fees paid by counties. These positions are converted to general
purpose revenue positions on June 26, 2005.
Finally, effective January 1, 2004, the bill requires the SPD to provide legal
representation to any person, regardless of whether the person is indigent, who seeks
SPD representation and is the subject of an involuntary commitment proceeding for
mental health or alcoholism treatment, a protective placement proceeding, or a
proceeding to appoint a guardian because the person is alleged to be not competent
to refuse psychotropic medication.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB616, s. 1
1Section
1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert
2the following amounts for the purposes indicated:
-
See PDF for table ![PDF](https://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
AB616, s. 2
3Section
2. 20.550 (1) (f) of the statutes is amended to read:
AB616,3,84
20.550
(1) (f)
Transcripts, discovery, and interpreters. The amounts in the
5schedule for the costs of interpreters and discovery materials and for the
6compensation of court reporters or clerks of circuit court for preliminary
7examination, trial
, and appeal transcripts, and the payment of related costs under
8s. 967.06
(3).
AB616, s. 3
9Section
3. 20.550 (1) (fb) of the statutes is amended to read:
AB616,3,1310
20.550
(1) (fb)
Payments from clients; administrative costs. The amounts in the
11schedule for the costs of determining, collecting and processing the payments
12received from persons as payment for legal representation under s.
977.07 (2), 13977.075 or 977.076.
AB616, s. 4
14Section
4. 20.550 (1) (j) of the statutes is created to read:
AB616,4,6
120.550
(1) (j)
Payments from counties; private bar and investigator
2reimbursement. All moneys received from fees paid by counties under 2003
3Wisconsin Act .... (this act), section 46 (1), after deducting the amounts appropriated
4under par. (ja), to reimburse private attorneys and contract for the services of private
5investigators in cases for which counties pay a fee under 2003 Wisconsin Act .... (this
6act), section 46 (1).
AB616, s. 5
7Section
5. 20.550 (1) (ja) of the statutes is created to read:
AB616,4,138
20.550
(1) (ja)
Payments from counties; state public defender representation. 9As a continuing appropriation, from the moneys received from fees paid by counties
10under 2003 Wisconsin Act .... (this act), section 46 (1), the amounts in the schedule
11for the costs of representation provided by the office of the state public defender in
12cases for which counties pay a fee under 2003 Wisconsin Act .... (this act), section 46
13(1).
AB616, s. 6
14Section
6
. 20.550 (1) (ja) of the statutes, as created by 2003 Wisconsin Act ....
15(this act), is repealed.
AB616, s. 7
16Section
7. 51.15 (9) of the statutes is amended to read:
AB616,4,2417
51.15
(9) Notice of rights. At the time of detention the individual shall be
18informed by the director of the facility or such person's designee, both orally and in
19writing, of his or her right to contact an attorney and a member of his or her
20immediate family, the right to have an attorney provided at public expense, as
21provided under s.
967.06 and ch. 977, if the individual is a child or is indigent, 51.60,
22and the right to remain silent and that the individual's statements may be used as
23a basis for commitment. The individual shall also be provided with a copy of the
24statement of emergency detention.
AB616, s. 8
25Section
8. 51.20 (3) of the statutes is amended to read:
AB616,5,7
151.20
(3) Legal counsel. At the time of the filing of the petition the court shall
2assure that the subject individual is represented by adversary counsel
. If the
3individual claims or appears to be indigent, the court shall refer the person to the
4authority for indigency determinations specified under s. 977.07 (1). If the
5individual is a child, the court shall refer that child by referring the individual to the
6state public defender
, who shall appoint counsel for the
child individual without a
7determination of indigency, as provided in s.
48.23 (4) 51.60.
AB616, s. 9
8Section
9. 51.20 (18) (c) of the statutes is amended to read:
AB616,5,159
51.20
(18) (c) Expenses of the proceedings from the presentation of the
10statement of emergency detention or petition for commitment to the conclusion of the
11proceeding shall be allowed by the court and paid by the county from which the
12subject individual is detained, committed
, or released, in the manner that the
13expenses of a criminal prosecution are paid, as provided in s. 59.64 (1). Payment of
14attorney fees for
appointed attorneys
in the case of children and indigents appointed
15under s. 51.60 shall be in accordance with ch. 977.
AB616, s. 10
16Section
10. 51.35 (1) (e) 1. of the statutes is amended to read:
AB616,5,2517
51.35
(1) (e) 1. Whenever any transfer between different treatment facilities
18results in a greater restriction of personal freedom for the patient and whenever the
19patient is transferred from outpatient to inpatient status, the department or the
20county department specified under par. (a) shall inform the patient both orally and
21in writing of his or her right to contact an attorney and a member of his or her
22immediate family, the right to have counsel provided at public expense, as provided
23under s.
967.06 and ch. 977, if the patient is a child or is indigent 51.60, and the right
24to petition a court in the county in which the patient is located or the committing
25court for a review of the transfer.
AB616, s. 11
1Section
11. 51.35 (1) (e) 2. c. of the statutes is amended to read:
AB616,6,32
51.35
(1) (e) 2. c. The patient's right to have counsel provided at public expense,
3as provided under s.
967.06 and ch. 977, if the patient is a child or is indigent 51.60.
AB616, s. 12
4Section
12. 51.45 (12) (b) (intro.), 1. and 3. of the statutes are consolidated,
5renumbered 51.45 (12) (b) and amended to read:
AB616,6,126
51.45
(12) (b) The physician, spouse, guardian
, or a relative of the person
7sought to be committed, or any other responsible person, may petition a circuit court
8commissioner or the circuit court of the county in which the person sought to be
9committed resides or is present for commitment under this subsection. The petition
10shall
: 1. State state facts to support the need for emergency treatment
; 3. Be
and
11be supported by one or more affidavits
which
that aver with particularity the factual
12basis for the allegations contained in the petition.
AB616, s. 13
13Section
13. 51.45 (12) (b) 2. of the statutes is repealed.
AB616, s. 14
14Section
14. 51.45 (12) (c) 2. of the statutes is amended to read:
AB616,6,2015
51.45
(12) (c) 2. Assure that the person sought to be committed is represented
16by counsel
and, if the person claims or appears to be indigent, refer the person to the
17authority for indigency determinations specified under s. 977.07 (1) or, if the person
18is a child, refer that child by referring the person to the state public defender
, who
19shall appoint counsel for the
child person without a determination of indigency, as
20provided in s.
48.23 (4) 51.60.
AB616, s. 15
21Section
15. 51.45 (13) (b) 2. of the statutes is amended to read:
AB616,7,422
51.45
(13) (b) 2. Assure that the person is represented by counsel
and, if the
23person claims or appears to be indigent, refer the person to the authority for
24indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer
25that child by referring the person to the state public defender
, who shall appoint
1counsel for the
child person without a determination of indigency, as provided in s.
248.23 (4) 51.60. The person shall be represented by counsel at the preliminary
3hearing under par. (d). The person may, with the approval of the court, waive his or
4her right to representation by counsel at the full hearing under par. (f).
AB616, s. 16
5Section
16. 51.45 (13) (d) of the statutes is amended to read:
AB616,7,176
51.45
(13) (d) Whenever it is desired to involuntarily commit a person, a
7preliminary hearing shall be held under this paragraph. The purpose of the
8preliminary hearing shall be to determine if there is probable cause for believing that
9the allegations of the petition under par. (a) are true. The person shall be represented
10by counsel at the preliminary hearing and
, if the person is a child or is indigent, 11counsel shall timely be appointed at public expense, as provided in s.
967.06 and ch.
12977 51.60. Counsel shall have access to all reports and records, psychiatric and
13otherwise, which have been made prior to the preliminary hearing. The person shall
14be present at the preliminary hearing and shall be afforded a meaningful
15opportunity to be heard. Upon failure to make a finding of probable cause under this
16paragraph, the court shall dismiss the petition and discharge the person from the
17custody of the county department.
AB616, s. 17
18Section
17. 51.45 (13) (j) of the statutes is amended to read:
AB616,8,219
51.45
(13) (j) Upon the filing of a petition for recommitment under par. (h), the
20court shall fix a date for a recommitment hearing within 10 days
, and assure that the
21person sought to be recommitted is represented by counsel
and, if the person is
22indigent, appoint by appointing counsel for him or her
, unless waived as provided
23under s. 51.60. The provisions of par. (e) relating to notice and to access to records,
24names of witnesses
, and summaries of their testimony shall apply to recommitment
1hearings under this paragraph. At the recommitment hearing, the court shall
2proceed as provided under pars. (f) and (g).
AB616, s. 18
3Section
18. 51.45 (16) (c) of the statutes is amended to read:
AB616,8,64
51.45
(16) (c) Payment of attorney fees for
appointed attorneys in the case of
5children and indigents counsel appointed under s. 51.60 shall be in accordance with
6ch. 977.
AB616, s. 19
7Section
19. 51.60 of the statutes is created to read:
AB616,8,11
851.60 Appointment of counsel. (1) Adults. (a) In any situation under this
9chapter in which an adult person has a right to be represented by counsel, the person
10shall be referred as soon as practicable to the state public defender, who shall appoint
11counsel for the person under s. 977.08 without a determination of indigency.
AB616,8,1312
(b) Except as provided in s. 51.45 (13) (b) 2., par. (a) does not apply if the person
13knowingly and voluntarily waives counsel.
AB616,8,16
14(2) Children. In any situation under this chapter in which a child has a right
15to be represented by counsel, counsel for the child shall be appointed as provided in
16s. 48.23 (4).
AB616,8,19
17(3) Retained counsel. Notwithstanding subs. (1) and (2), a person subject to
18proceedings under this chapter is entitled to retain counsel of his or her own choosing
19at his or her own expense.
AB616, s. 20
20Section
20. 55.06 (11) (a) of the statutes is amended to read:
AB616,9,1321
55.06
(11) (a) If from personal observation of a sheriff, police officer, fire fighter,
22guardian, if any, or authorized representative of a board designated under s. 55.02
23or an agency designated by it it appears probable that an individual will suffer
24irreparable injury or death or will present a substantial risk of serious physical harm
25to others as a result of developmental disabilities, infirmities of aging, chronic
1mental illness
, or other like incapacities if not immediately placed, the person
2making the observation may take into custody and transport the individual to an
3appropriate medical or protective placement facility. The person making placement
4shall prepare a statement at the time of detention providing specific factual
5information concerning the person's observations and the basis for emergency
6placement. The statement shall be filed with the director of the facility and shall also
7be filed with any petition under sub. (2). At the time of placement the individual shall
8be informed by the director of the facility or the director's designee, both orally and
9in writing, of his or her right to contact an attorney and a member of his or her
10immediate family and the right to have an attorney provided at public expense, as
11provided under
s. 967.06 and ch. 977, if the individual is a child or is indigent par.
12(bm). The director or designee shall also provide the individual with a copy of the
13statement by the person making emergency placement.
AB616, s. 21
14Section
21. 55.06 (11) (bm) of the statutes is created to read:
AB616,9,1815
55.06
(11) (bm) 1. Unless an adult individual subject to an emergency
16placement under par. (a) knowingly and voluntarily waives counsel, the individual
17shall be referred as soon as practicable to the state public defender, who shall appoint
18counsel for the individual under s. 977.08 without a determination of indigency.
AB616,9,2019
2. If a child is subject to an emergency placement under par. (a), counsel for the
20child shall be appointed as provided in s. 48.23 (4).
AB616,9,2321
3. Notwithstanding subds. 1. and 2., a person subject to an emergency
22placement under par. (a) is entitled to retain counsel of his or her own choosing at
23his or her own expense.
AB616, s. 22
24Section
22. 303.065 (5) (dm) of the statutes is amended to read:
AB616,10,2
1303.065
(5) (dm) Payment for legal representation under s. 977.07
(2) (2m),
2977.075 or 977.076;
AB616, s. 23
3Section
23. 809.30 (2) (d) of the statutes, as affected by Supreme Court Order
402-01, is amended to read:
AB616,10,135
809.30
(2) (d)
Indigency redetermination. Except as provided in this
6paragraph, whenever a person whose trial counsel is appointed by the state public
7defender files a notice under par. (b) requesting public defender representation for
8purposes of postconviction or postdisposition relief, the prosecutor may, within 5
9days after the notice is served and filed, file in the circuit court and serve upon the
10state public defender a request that the person's indigency be redetermined before
11counsel is appointed or transcripts are requested. This paragraph does not apply to
12a child or juvenile who is entitled to be represented by counsel under s. 48.23
, 51.60
13(1), 55.06 (11) (a), 880.33 (2) (a) 2., or 938.23.
AB616, s. 24
14Section
24. 814.69 (1) (a) of the statutes is amended to read:
AB616,10,1815
814.69
(1) (a) For a transcript under SCR 71.04, a fee at the rate of $1.50 per
1625-line page for the original and 50 cents per 25-line page for the duplicate. Except
17as provided in s. 967.06
(3), the fee shall be paid by the county treasurer upon the
18certificate of the clerk of court.
AB616, s. 25
19Section
25. 880.33 (2) (a) 2. of the statutes is amended to read:
AB616,11,220
880.33
(2) (a) 2. If the person requests but is unable to obtain legal counsel, the
21court shall appoint legal counsel.
If the petition contains the allegations under s.
22880.07 (1m), the court shall refer the person to the state public defender, who shall
23appoint counsel under s. 977.08 without a determination of indigency. If the person
24is represented by counsel appointed under s. 977.08 in a proceeding for a protective
1placement under s. 55.06
or for the appointment of a guardian under s. 880.07 (1m),
2the court shall order the counsel appointed under s. 977.08 to represent the person.
AB616, s. 26
3Section
26. 967.06 of the statutes is renumbered 967.06 (1) and amended to
4read:
AB616,11,105
967.06
(1) As soon as practicable after a person has been detained or arrested
6in connection with any offense
which that is punishable by incarceration, or in
7connection with any civil commitment proceeding, or in any other situation in which
8a person is entitled to counsel regardless of ability to pay under the constitution or
9laws of the United States or this state, the person shall be informed of his or her right
10to counsel.
Persons
AB616,11,18
11(2) (a) Except as provided in par. (b), a person entitled to counsel under sub.
12(1) who
indicate indicates at any time that
they wish he or she wants to be
13represented by a lawyer, and who
claim that they are
claims that he or she is not able
14to pay in full for a lawyer's services, shall immediately be permitted to contact the
15authority for indigency determinations specified under s. 977.07 (1). The authority
16for indigency determination in each county shall have daily telephone access to the
17county jail in order to identify all persons who are being held in the jail. The jail
18personnel shall provide by phone information requested by the authority.
AB616,11,24
19(3) In any case in which the state public defender provides representation to
20an indigent person, the public defender may request that the applicable court
21reporter or clerk of circuit court prepare and transmit any transcript or court record.
22The request shall be complied with. The state public defender shall, from the
23appropriation under s. 20.550 (1) (f), compensate the court reporter or clerk of circuit
24court for the cost of preparing, handling, duplicating
, and mailing the documents.
AB616, s. 27
25Section
27. 967.06 (2) (b) of the statutes is created to read:
AB616,12,4
1967.06
(2) (b) If the person indicating that he or she wants to be represented
2by a lawyer is detained under ch. 51 or 55, the person shall be referred for
3appointment of counsel as provided under s. 51.60 or 55.06 (11) (bm), whichever is
4applicable.
AB616, s. 28
5Section
28. 973.06 (1) (e) of the statutes is amended to read:
AB616,12,96
973.06
(1) (e) Attorney fees payable to the defense attorney by the county or
7the state. If the court determines at the time of sentencing that the defendant's
8financial circumstances are changed, the court may adjust the amount in accordance
9with s. 977.07 (1) (a) and
(2) (2g).
AB616, s. 29
10Section
29. 977.02 (2m) of the statutes is amended to read:
AB616,12,1411
977.02
(2m) Promulgate rules regarding eligibility for legal services under this
12chapter, including legal services for children who are entitled to be represented by
13counsel without a determination of indigency, as provided in s. 48.23 (4)
, 51.60 (1),
1455.06 (11) (a), 880.33 (2) (a) 2., or 938.23 (4).
AB616, s. 30
15Section
30. 977.02 (3) of the statutes is amended to read:
AB616,12,2016
977.02
(3) Promulgate rules regarding the determination of indigency of
17persons entitled to be represented by counsel, other than
children persons who are
18entitled to be represented by counsel under s. 48.23
, 51.60 (1), 55.06 (11) (a), 880.33
19(2) (a) 2., or 938.23, including the time period in which the determination must be
20made and the criteria to be used to determine indigency and partial indigency.
AB616, s. 31
21Section
31. 977.05 (4) (gm) of the statutes is amended to read:
AB616,13,322
977.05
(4) (gm) In accordance with the standards under pars. (h) and (i), accept
23referrals from judges and courts for the provision of legal services without a
24determination of indigency of
children persons who are entitled to be represented by
25counsel under s. 48.23
, 51.60 (1), 55.06 (11) (a), 880.33 (2) (a) 2., or 938.23, appoint
1counsel in accordance with contracts and policies of the board
, and inform the
2referring judge or court of the name and address of the specific attorney who has been
3assigned to the case.
AB616, s. 32
4Section
32. 977.05 (4) (h) of the statutes is amended to read: