LRB-4361/2
RLR&MGD:jd:rs
2005 - 2006 LEGISLATURE
May 4, 2006 - Introduced by Representatives McCormick, Krawczyk, Musser,
Staskunas, Van Roy and
Turner. Referred to Committee on Judiciary.
AB1219,2,2
1An Act to repeal 51.45 (12) (b) 2., 51.45 (16) (c), 977.07 (2) and 977.08 (2) (d);
to
2renumber and amend 967.06, 977.02 (3) and 977.075 (1);
to consolidate,
3renumber and amend 51.45 (12) (b) (intro.), 1. and 3.;
to amend 20.550 (1)
4(f), 20.550 (1) (fb), 51.15 (9), 51.20 (3), 51.20 (18) (c), 51.35 (1) (e) 1., 51.35 (1) (e)
52. c., 51.45 (12) (c) 2., 51.45 (13) (b) 2., 51.45 (13) (d), 51.45 (13) (j), 55.06 (11) (a),
6303.065 (5) (dm), 809.30 (2) (d), 814.69 (1) (a), 880.33 (2) (a) 2., 973.06 (1) (e),
7977.02 (2m), 977.05 (4) (gm), 977.05 (4) (h), 977.05 (4) (i) 4., 977.06 (1) (a), 977.06
8(2) (a), 977.06 (2) (am), 977.07 (1) (a), 977.07 (1) (c), 977.07 (2m), 977.075 (3),
9977.075 (4), 977.075 (5), 977.08 (1), 977.08 (2) (intro.) and 977.085 (3); and
to
10create 51.60, 51.605, 55.06 (11) (bm), 55.065, 880.33 (2) (a) 4., 967.06 (2) (b),
11977.02 (3)
(a) to (d), 977.075 (1g) and 977.075 (6) of the statutes;
relating to:
1indigency determinations, provision of legal services by the State Public
2Defender, and requiring the exercise of rule-making authority.
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 under rules that the SPD adopts.
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. But, 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 he or she has the right to appointed counsel if he or she 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.
This bill changes the criteria for determining indigency for the purposes of SPD
representation. Under the bill, the SPD must adopt rules regarding indigency
determinations that require the SPD, when assessing a person's eligibility, to
consider the anticipated costs of effective representation for the type of case in which
the person is involved. The rules must also require that assets and income be treated
as available to the person to pay the costs of legal representation if they exceed the
asset and income ceilings for eligibility for the Wisconsin Works (W-2) program,
except that the asset exclusion for a person's home is limited to $30,000. (To be
eligible for the W-2 program, a person's household assets, after excluding up to
$10,000 for a vehicle and the value of the person's home, cannot exceed $2,500, and
his or her household income cannot exceed 115 percent of the federal poverty line.)
Third, under the rules, the SPD must treat assets or income of the person's spouse
as the person's assets or income, unless the spouse was the victim of a crime that the
person allegedly committed.
In addition, 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. The bill provides that the court may require such a person, who is an
adult, to reimburse the SPD for all or part of the costs of legal representation if the
person is able to make reimbursement. Finally, the bill provides the Public Defender
Board with 59.5 new full-time equivalent general purpose revenue positions on July
1, 2007 (the day on which the bill's other changes become effective).
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:
AB1219, s. 1
1Section
1. 20.550 (1) (f) of the statutes is amended to read:
AB1219,3,62
20.550
(1) (f)
Transcripts, discovery, and interpreters. The amounts in the
3schedule for the costs of interpreters and discovery materials and for the
4compensation of court reporters or clerks of circuit court for preliminary
5examination, trial
, and appeal transcripts, and the payment of related costs under
6s. 967.06
(3).
AB1219, s. 2
7Section
2. 20.550 (1) (fb) of the statutes is amended to read:
AB1219,3,118
20.550
(1) (fb)
Payments from clients; administrative costs. The amounts in the
9schedule for the costs of determining, collecting and processing the payments
10received from persons as payment for legal representation under s.
977.07 (2), 11977.075 or 977.076.
AB1219, s. 3
12Section
3. 51.15 (9) of the statutes is amended to read:
AB1219,4,213
51.15
(9) Notice of rights. At the time of detention the individual shall be
14informed by the director of the facility or such person's designee, both orally and in
15writing, of his or her right to contact an attorney and a member of his or her
16immediate family, the right to have an attorney provided at public expense, as
17provided under s.
967.06 and ch. 977, if the individual is a child or is indigent, 51.60, 18and the right to remain silent and that the individual's statements may be used as
1a basis for commitment. The individual shall also be provided with a copy of the
2statement of emergency detention.
AB1219, s. 4
3Section
4. 51.20 (3) of the statutes is amended to read:
AB1219,4,104
51.20
(3) Legal counsel. At the time of the filing of the petition the court shall
5assure that the subject individual is represented by adversary counsel
. If the
6individual claims or appears to be indigent, the court shall refer the person to the
7authority for indigency determinations specified under s. 977.07 (1). If the
8individual is a child, the court shall refer that child by referring the individual to the
9state public defender
, who shall appoint counsel for the
child individual without a
10determination of indigency, as provided in s.
48.23 (4) 51.60.
AB1219, s. 5
11Section
5. 51.20 (18) (c) of the statutes is amended to read:
AB1219,4,1812
51.20
(18) (c) Expenses of the proceedings from the presentation of the
13statement of emergency detention or petition for commitment to the conclusion of the
14proceeding shall be allowed by the court and paid by the county from which the
15subject individual is detained, committed
, or released, in the manner that the
16expenses of a criminal prosecution are paid, as provided in s. 59.64 (1).
Payment of
17attorney fees for appointed attorneys in the case of children and indigents shall be
18in accordance with ch. 977.
AB1219, s. 6
19Section
6. 51.35 (1) (e) 1. of the statutes is amended to read:
AB1219,5,320
51.35
(1) (e) 1. Whenever any transfer between different treatment facilities
21results in a greater restriction of personal freedom for the patient and whenever the
22patient is transferred from outpatient to inpatient status, the department or the
23county department specified under par. (a) shall inform the patient both orally and
24in writing of his or her right to contact an attorney and a member of his or her
25immediate family, the right to have counsel provided at public expense, as provided
1under s.
967.06 and ch. 977, if the patient is a child or is indigent 51.60, and the right
2to petition a court in the county in which the patient is located or the committing
3court for a review of the transfer.
AB1219, s. 7
4Section
7. 51.35 (1) (e) 2. c. of the statutes is amended to read:
AB1219,5,65
51.35
(1) (e) 2. c. The patient's right to have counsel provided at public expense,
6as provided under s.
967.06 and ch. 977, if the patient is a child or is indigent 51.60.
AB1219, s. 8
7Section
8. 51.45 (12) (b) (intro.), 1. and 3. of the statutes are consolidated,
8renumbered 51.45 (12) (b) and amended to read:
AB1219,5,159
51.45
(12) (b) The physician, spouse, guardian
, or a relative of the person
10sought to be committed, or any other responsible person, may petition a circuit court
11commissioner or the circuit court of the county in which the person sought to be
12committed resides or is present for commitment under this subsection. The petition
13shall
: 1. State state facts to support the need for emergency treatment
; 3. Be
and
14be supported by one or more affidavits
which
that aver with particularity the factual
15basis for the allegations contained in the petition.
AB1219, s. 9
16Section
9. 51.45 (12) (b) 2. of the statutes is repealed.
AB1219, s. 10
17Section
10. 51.45 (12) (c) 2. of the statutes is amended to read:
AB1219,5,2318
51.45
(12) (c) 2. Assure that the person sought to be committed is represented
19by counsel
and, if the person claims or appears to be indigent, refer the person to the
20authority for indigency determinations specified under s. 977.07 (1) or, if the person
21is a child, refer that child by referring the person to the state public defender
, who
22shall appoint counsel for the
child person without a determination of indigency, as
23provided in s.
48.23 (4) 51.60.
AB1219, s. 11
24Section
11. 51.45 (13) (b) 2. of the statutes is amended to read:
AB1219,6,8
151.45
(13) (b) 2. Assure that the person is represented by counsel
and, if the
2person claims or appears to be indigent, refer the person to the authority for
3indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer
4that child by referring the person to the state public defender
, who shall appoint
5counsel for the
child person without a determination of indigency, as provided in s.
648.23 (4) 51.60. The person shall be represented by counsel at the preliminary
7hearing under par. (d). The person may, with the approval of the court, waive his or
8her right to representation by counsel at the full hearing under par. (f).
AB1219, s. 12
9Section
12. 51.45 (13) (d) of the statutes is amended to read:
AB1219,6,2210
51.45
(13) (d) Whenever it is desired to involuntarily commit a person, a
11preliminary hearing shall be held under this paragraph. The purpose of the
12preliminary hearing shall be to determine if there is probable cause for believing that
13the allegations of the petition under par. (a) are true. The
court shall assure that the 14person
shall be is represented by counsel at the preliminary hearing
and, if the
15person is a child or is indigent, by appointing counsel
shall timely be appointed at
16public expense, as provided in s. 967.06 and ch. 977 for him or her under s. 51.60.
17Counsel shall have access to all reports and records, psychiatric and otherwise,
18which have been made prior to the preliminary hearing. The person shall be present
19at the preliminary hearing and shall be afforded a meaningful opportunity to be
20heard. Upon failure to make a finding of probable cause under this paragraph, the
21court shall dismiss the petition and discharge the person from the custody of the
22county department.
AB1219, s. 13
23Section
13. 51.45 (13) (j) of the statutes is amended to read:
AB1219,7,624
51.45
(13) (j) Upon the filing of a petition for recommitment under par. (h), the
25court shall fix a date for a recommitment hearing within 10 days
, and assure that the
1person sought to be recommitted is represented by counsel
and, if the person is
2indigent, appoint by appointing counsel for him or her
, unless waived under s. 51.60.
3The provisions of par. (e) relating to notice and to access to records, names of
4witnesses
, and summaries of their testimony shall apply to recommitment hearings
5under this paragraph. At the recommitment hearing, the court shall proceed as
6provided under pars. (f) and (g).
AB1219, s. 14
7Section
14. 51.45 (16) (c) of the statutes is repealed.
AB1219, s. 15
8Section
15. 51.60 of the statutes is created to read:
AB1219,7,12
951.60 Appointment of counsel. (1) Adults. (a) In any situation under this
10chapter in which an adult person has a right to be represented by counsel, the person
11shall be referred as soon as practicable to the state public defender, who shall appoint
12counsel for the person under s. 977.08 without a determination of indigency.
AB1219,7,1413
(b) Except as provided in s. 51.45 (13) (b) 2., par. (a) does not apply if the person
14knowingly and voluntarily waives counsel.
AB1219,7,17
15(2) Children. In any situation under this chapter in which a child has a right
16to be represented by counsel, counsel for the child shall be appointed as provided in
17s. 48.23 (4).
AB1219,7,20
18(3) Retained counsel. Notwithstanding subs. (1) and (2), a person subject to
19proceedings under this chapter is entitled to retain counsel of his or her own choosing
20at his or her own expense.
AB1219, s. 16
21Section
16. 51.605 of the statutes is created to read:
AB1219,8,6
2251.605 Reimbursement for counsel provided by the state. (1) At or after
23the conclusion of a proceeding under this chapter in which the state public defender
24has provided counsel for an adult person, the court may inquire as to the person's
25ability to reimburse the state for all or part of the cost of representation. If the court
1determines that the person is able to make reimbursement for all or part of the cost
2of representation, the court may order the person to reimburse the state an amount
3not to exceed the maximum amount established by the public defender board under
4s. 977.075 (6). Upon the court's request, the state public defender shall conduct a
5determination of indigency under s. 977.07 and report the results of the
6determination to the court.
AB1219,8,13
7(2) Reimbursement ordered under this section shall be made to the clerk of
8courts of the county where the proceedings took place. The clerk of courts shall
9transmit payments under this section to the county treasurer, who shall deposit 25
10percent of the payment amount in the county treasury and transmit the remainder
11to the secretary of administration. Payments transmitted to the secretary of
12administration shall be deposited in the general fund and credited to the
13appropriation account under s. 20.550 (1) (L).
AB1219,8,17
14(3) By January 31st of each year, the clerk of courts for each county shall report
15to the state public defender the total amount of reimbursements ordered under sub.
16(1) in the previous calendar year and the total amount of reimbursements paid to the
17clerk under sub. (2) in the previous year.
AB1219, s. 17
18Section
17. 55.06 (11) (a) of the statutes is amended to read:
AB1219,9,1119
55.06
(11) (a) If from personal observation of a sheriff, police officer, fire fighter,
20guardian, if any, or authorized representative of a board designated under s. 55.02
21or an agency designated by it it appears probable that an individual will suffer
22irreparable injury or death or will present a substantial risk of serious physical harm
23to others as a result of developmental disabilities, infirmities of aging, chronic
24mental illness
, or other like incapacities if not immediately placed, the person
25making the observation may take into custody and transport the individual to an
1appropriate medical or protective placement facility. The person making placement
2shall prepare a statement at the time of detention providing specific factual
3information concerning the person's observations and the basis for emergency
4placement. The statement shall be filed with the director of the facility and shall also
5be filed with any petition under sub. (2). At the time of placement the individual shall
6be informed by the director of the facility or the director's designee, both orally and
7in writing, of his or her right to contact an attorney and a member of his or her
8immediate family and the right to have an attorney provided at public expense, as
9provided under
s. 967.06 and ch. 977, if the individual is a child or is indigent par.
10(bm). The director or designee shall also provide the individual with a copy of the
11statement by the person making emergency placement.
AB1219, s. 18
12Section
18. 55.06 (11) (bm) of the statutes is created to read:
AB1219,9,1613
55.06
(11) (bm) 1. Unless an adult individual subject to an emergency
14placement under par. (a) knowingly and voluntarily waives counsel, the individual
15shall be referred as soon as practicable to the state public defender, who shall appoint
16counsel for the individual under s. 977.08 without a determination of indigency.
AB1219,9,1817
2. If a child is subject to an emergency placement under par. (a), counsel for the
18child shall be appointed as provided in s. 48.23 (4).
AB1219,9,2119
3. Notwithstanding subds. 1. and 2., a person subject to an emergency
20placement under par. (a) is entitled to retain counsel of his or her own choosing at
21his or her own expense.
AB1219, s. 19
22Section
19. 55.065 of the statutes is created to read:
AB1219,9,25
2355.065 Reimbursement for counsel provided by the state. (1) At or after
24the conclusion of a proceeding under this chapter in which the state public defender
25has provided counsel for an adult person, the court may inquire as to the person's
1ability to reimburse the state for all or part of the cost of representation. If the court
2determines that the person is able to make reimbursement for all or part of the cost
3of representation, the court may order the person to reimburse the state an amount
4not to exceed the maximum amount established by the public defender board under
5s. 977.075 (6). Upon the court's request, the state public defender shall conduct a
6determination of indigency under s. 977.07 and report the results of the
7determination to the court.
AB1219,10,14
8(2) Reimbursement ordered under this section shall be made to the clerk of
9courts of the county where the proceedings took place. The clerk of courts shall
10transmit payments under this section to the county treasurer, who shall deposit 25
11percent of the payment amount in the county treasury and transmit the remainder
12to the secretary of administration. Payments transmitted to the secretary of
13administration shall be deposited in the general fund and credited to the
14appropriation account under s. 20.550 (1) (L).
AB1219,10,18
15(3) By January 31st of each year, the clerk of courts for each county shall report
16to the state public defender the total amount of reimbursements ordered under sub.
17(1) in the previous calendar year and the total amount of reimbursements paid to the
18clerk under sub. (2) in the previous year.
AB1219, s. 20
19Section
20. 303.065 (5) (dm) of the statutes is amended to read: