2007 BILL
AN ACT ...; relating to: the budget.
Analysis by the Legislative Reference Bureau
Public defender
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 who are indigent.
This 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 or services proceeding, or a proceeding concerning involuntary administration of 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. The bill makes the changes in eligibility for SPD representation effective July 1, 2008.
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:
SECTION 1. 20.550 (1) (f) of the statutes is amended to read:
20.550 (1) (f) Transcripts, discovery, and interpreters. The amounts in the schedule for the costs of interpreters and discovery materials and for the compensation of court reporters or clerks of circuit court for preliminary examination, trial, and appeal transcripts, and the payment of related costs under s. 967.06 (3).
SECTION 2. 20.550 (1) (L) of the statutes is amended to read:
20.550 (1) (L) Private bar and investigator reimbursement; payments for legal representation. All moneys received, after first deducting the amounts appropriated under par. (fb), from persons as payment for legal representation to be used for the reimbursement of private attorneys appointed to act as counsel for a child or an indigent person under s. 977.08 and for reimbursement for contracting for services of private investigators.
SECTION 3. 51.15 (9) of the statutes is amended to read:
51.15 (9) NOTICE OF RIGHTS. At the time of detention the individual shall be informed by the director of the facility or such person's designee, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family, the right to have an attorney provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is a child or is indigent, 51.60, and the right to remain silent and that the individual's statements may be used as a basis for commitment. The individual shall also be provided with a copy of the statement of emergency detention.
SECTION 4. 51.20 (3) of the statutes is amended to read:
51.20 (3) LEGAL COUNSEL. At the time of the filing of the petition the court shall assure that the subject individual is represented by adversary counsel. If the individual claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations specified under s. 977.07 (1). If the individual is a child, the court shall refer that child by referring the individual to the state public defender, who shall appoint counsel for the child individual without a determination of indigency, as provided in s. 48.23 (4) 51.60.
SECTION 5. 51.20 (18) (c) of the statutes is amended to read:
51.20 (18) (c) Expenses of the proceedings from the presentation of the statement of emergency detention or petition for commitment to the conclusion of the proceeding shall be allowed by the court and paid by the county from which the subject individual is detained, committed, or released, in the manner that the expenses of a criminal prosecution are paid, as provided in s. 59.64 (1). Payment of attorney fees for appointed attorneys in the case of children and indigents shall be in accordance with ch. 977.
SECTION 6. 51.35 (1) (e) 1. of the statutes is amended to read:
51.35 (1) (e) 1. Whenever any transfer between different treatment facilities results in a greater restriction of personal freedom for the patient and whenever the patient is transferred from outpatient to inpatient status, the department or the county department specified under par. (a) shall inform the patient both orally and in writing of his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, as provided under s. 967.06 and ch. 977, if the patient is a child or is indigent 51.60, and the right to petition a court in the county in which the patient is located or the committing court for a review of the transfer.
SECTION 7. 51.35 (1) (e) 2. c. of the statutes is amended to read:
51.35 (1) (e) 2. c. The patient's right to have counsel provided at public expense, as provided under s. 967.06 and ch. 977, if the patient is a child or is indigent 51.60.
SECTION 8. 51.45 (12) (b) (intro.), 1. and 3. of the statutes are consolidated, renumbered 51.45 (12) (b) and amended to read:
51.45 (12) (b) The physician, spouse, guardian, or a relative of the person sought to be committed, or any other responsible person, may petition a circuit court commissioner or the circuit court of the county in which the person sought to be committed resides or is present for commitment under this subsection. The petition shall: 1. State state facts to support the need for emergency treatment; 3. Be and be supported by one or more affidavits which that aver with particularity the factual basis for the allegations contained in the petition.
SECTION 9. 51.45 (12) (b) 2. of the statutes is repealed.
SECTION 10. 51.45 (12) (c) 2. of the statutes is amended to read:
51.45 (12) (c) 2. Assure that the person sought to be committed is represented by counsel and, if the person claims or appears to be indigent, refer the person to the authority for indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer that child by referring the person to the state public defender, who shall appoint counsel for the child person without a determination of indigency, as provided in s. 48.23 (4) 51.60.
SECTION 11. 51.45 (13) (b) 2. of the statutes is amended to read:
51.45 (13) (b) 2. Assure that the person is represented by counsel and, if the person claims or appears to be indigent, refer the person to the authority for indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer that child by referring the person to the state public defender, who shall appoint counsel for the child person without a determination of indigency, as provided in s. 48.23 (4) 51.60. The person shall be represented by counsel at the preliminary hearing under par. (d). The person may, with the approval of the court, waive his or her right to representation by counsel at the full hearing under par. (f).
SECTION 12. 51.45 (13) (d) of the statutes is amended to read:
51.45 (13) (d) Whenever it is desired to involuntarily commit a person, a preliminary hearing shall be held under this paragraph. The purpose of the preliminary hearing shall be to determine if there is probable cause for believing that the allegations of the petition under par. (a) are true. The court shall assure that the person shall be is represented by counsel at the preliminary hearing and, if the person is a child or is indigent, by referring the person to the state public defender, who shall appoint counsel shall timely be appointed at public expense, as provided in s. 967.06 and ch. 977 for the person without a determination of indigency, as provided in s. 51.60. Counsel shall have access to all reports and records, psychiatric and otherwise, which have been made prior to the preliminary hearing. The person shall be present at the preliminary hearing and shall be afforded a meaningful opportunity to be heard. Upon failure to make a finding of probable cause under this paragraph, the court shall dismiss the petition and discharge the person from the custody of the county department.
SECTION 13. 51.45 (13) (j) of the statutes is amended to read:
51.45 (13) (j) Upon the filing of a petition for recommitment under par. (h), the court shall fix a date for a recommitment hearing within 10 days, and assure that the person sought to be recommitted is represented by counsel and, if the person is indigent, appoint by referring the person to the state public defender, who shall appoint counsel for him or her, unless waived for the person without a determination of indigency, as provided in s. 51.60. The provisions of par. (e) relating to notice and to access to records, names of witnesses, and summaries of their testimony shall apply to recommitment hearings under this paragraph. At the recommitment hearing, the court shall proceed as provided under pars. (f) and (g).
SECTION 14. 51.45 (16) (c) of the statutes is repealed.
SECTION 15. 51.60 of the statutes is created to read:
51.60 Appointment of counsel. (1) ADULTS. (a) In any situation under this chapter in which an adult individual has a right to be represented by counsel, the individual shall be referred as soon as practicable to the state public defender, who shall appoint counsel for the individual under s. 977.08 without a determination of indigency.
(b) Except as provided in s. 51.45 (13) (b) 2., par. (a) does not apply if the individual knowingly and voluntarily waives counsel.
(2) MINORS. In any situation under this chapter in which a minor has a right to be represented by counsel, counsel for the minor shall be appointed as provided in s. 48.23 (4).
(3) RETAINED COUNSEL. Notwithstanding subs. (1) and (2), an individual subject to proceedings under this chapter is entitled to retain counsel of his or her own choosing at his or her own expense.
SECTION 16. 51.605 of the statutes is created to read:
51.605 Reimbursement for counsel provided by the state. (1) INQUIRY. At or after the conclusion of a proceeding under this chapter in which the state public defender has provided counsel for an adult individual, the court may inquire as to the individual's ability to reimburse the state for all or part of the cost of representation. If the court determines that the individual is able to make reimbursement for all or part of the cost of representation, the court may order the individual to reimburse the state an amount not to exceed the maximum amount established by the public defender board under s. 977.075 (4). Upon the court's request, the state public defender shall conduct a determination of indigency under s. 977.07 and report the results of the determination to the court.
(2) PAYMENT. Reimbursement ordered under this section shall be made to the clerk of courts of the county where the proceedings took place. The clerk of courts shall transmit payments under this section to the county treasurer, who shall deposit 25 percent of the payment amount in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L).
(3) REPORT. By January 31st of each year, the clerk of courts for each county shall report to the state public defender the total amount of reimbursements ordered under sub. (1) in the previous calendar year and the total amount of reimbursements paid to the clerk under sub. (2) in the previous year.
SECTION 17. 55.10 (4) (a) of the statutes is amended to read:
55.10 (4) (a) Counsel; costs. The individual sought to be protected has the right to counsel whether or not the individual is present at the hearing on the petition. The court shall require representation by full legal counsel whenever the petition alleges that the individual is not competent to refuse psychotropic medication under s. 55.14, the individual sought to be protected requested such representation at least 72 hours before the hearing, the guardian ad litem or any other person states that the individual sought to be protected is opposed to the petition, or the court determines that the interests of justice require it. If the individual sought to be protected or any other person on his or her behalf requests but is unable to obtain legal counsel, the court shall appoint refer the individual to the state public defender as provided under s. 55.105 for appointment of legal counsel. Counsel shall be provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is indigent. If the individual sought to be protected is an adult who is indigent, and if counsel was not appointed under s. 977.08, the county in which the hearing is held is liable for any fees due the individual's legal counsel. If the individual sought to be protected is represented by counsel appointed under s. 977.08 in a proceeding for the appointment of a guardian under s. 880.33 ch. 54, the court shall order the counsel appointed under s. 977.08 to represent under this section the individual sought to be protected.
SECTION 18. 55.105 of the statutes is created to read:
55.105 Appointment of counsel. (1) In any situation under this chapter in which an adult individual has a right to be represented by legal counsel, the individual shall be referred as soon as practicable to the state public defender, who shall appoint counsel for the individual under s. 977.08 without a determination of indigency.
(2) In any situation under this chapter in which a minor has a right to be represented by legal counsel, legal counsel for the minor shall be appointed as provided in s. 48.23 (4).
(3) Notwithstanding subs. (1) and (2), an individual subject to proceedings under this chapter is entitled to retain counsel of his or her own choosing at his or her own expense.
SECTION 19. 55.107 of the statutes is created to read:
55.107 Reimbursement of counsel provided by the state. (1) At or after the conclusion of a proceeding under this chapter in which the state public defender has provided legal counsel for an adult individual, the court may inquire as to the individual's ability to reimburse the state for all or part of the cost of representation. If the court determines that the individual is able to make reimbursement for all or part of the cost of representation, the court may order the individual to reimburse the state an amount not to exceed the maximum amount established by the public defender board under s. 977.075 (4). Upon the court's request, the state public defender shall conduct a determination of indigency under s. 977.07 and report the results of the determination to the court.
(2) Reimbursement ordered under this section shall be made to the clerk of courts of the county where the proceedings took place. The clerk of courts shall transmit payments under this section to the county treasurer, who shall deposit 25 percent of the payment amount in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L).
(3) By January 31st of each year, the clerk of courts for each county shall report to the state public defender the total amount of reimbursements ordered under sub. (1) in the previous calendar year and the total amount of reimbursements paid to the clerk under sub. (2) in the previous year.
SECTION 20. 55.135 (1) of the statutes is amended to read:
55.135 (1) If, upon a credible report to or, from personal observation of, or a reliable report made by a person who identifies himself or herself to, a sheriff, police officer, fire fighter, guardian, if any, or authorized representative of a county department or an agency with which it contracts under s. 55.02 (2), it appears probable that an individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious physical harm to himself or herself or others as a result of developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacities if not immediately placed, the individual under this paragraph who received the credible report or who personally made the observation or to whom the report is made may take into custody and transport the individual to an appropriate medical or protective placement facility. The person making emergency protective placement shall prepare a statement at the time of detention providing specific factual information concerning the person's observations or reports made to the person and the basis for emergency placement. The statement shall be filed with the director of the facility and with any petition under s. 55.075. At the time of emergency protective placement the individual shall be informed by the director of the facility or the director's designee, orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family and the right to have an attorney provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is a minor or is indigent s. 55.105. The director or designee shall also provide the individual with a copy of the statement by the person making emergency protective placement.
SECTION 21. 55.14 (7) of the statutes is amended to read:
55.14 (7) Upon the filing of a petition under this section, the court shall appoint make a referral for appointment of legal counsel as provided under s. 55.105. A petition under this section shall be heard under s. 55.10 (4) (a) s. 55.06 within 30 days after it is filed.
SECTION 22. 55.15 (7) (cm) of the statutes is amended to read:
55.15 (7) (cm) The court shall appoint counsel for refer the individual under protective placement for appointment of legal counsel as provided under s. 55.105 if the individual, the individual's guardian ad litem, or anyone on the individual's behalf requests that counsel be appointed for the individual,.
SECTION 23. 55.18 (3) (c) (intro.) of the statutes is amended to read:
55.18 (3) (c) (intro.) The court shall order legal counsel for refer an individual and, if the individual appears to be indigent, refer him or her to the authority for indigency determinations under s. 977.07 (1) for appointment of legal counsel under s. 55.105 if any of the following apply:
SECTION 24. 55.19 (3) (c) (intro.) of the statutes is amended to read:
55.19 (3) (c) (intro.) The court shall order legal counsel for refer an individual and, if the individual appears to be indigent, refer him or her to the authority for indigency determinations under s. 977.07 (1) for appointment of legal counsel under s. 55.105 if any of the following apply:
SECTION 25. 809.30 (2) (d) of the statutes is amended to read:
809.30 (2) (d) Indigency redetermination. Except as provided in this paragraph, whenever a person whose trial counsel is appointed by the state public defender files a notice under par. (b) requesting public defender representation for purposes of postconviction or postdisposition relief, the prosecutor may, within 5 days after the notice is served and filed, file in the circuit court and serve upon the state public defender a request that the person's indigency be redetermined before counsel is appointed or transcripts are requested. This paragraph does not apply to a child or juvenile person who is entitled to be represented by counsel under s. 48.23, 51.60 (1), 55.105, or 938.23.
SECTION 26. 814.69 (1) (a) of the statutes is amended to read:
814.69 (1) (a) For a transcript under SCR 71.04, a fee at the rate of $1.50 per 25-line page for the original and 50 cents per 25-line page for the duplicate. Except as provided in s. 967.06 (3), the fee shall be paid by the county treasurer upon the certificate of the clerk of court.
SECTION 27. 967.06 of the statutes is renumbered 967.06 (1) and amended to read:
967.06 (1) As soon as practicable after a person has been detained or arrested in connection with any offense which that is punishable by incarceration, or in connection with any civil commitment proceeding, or in any other situation in which a person is entitled to counsel regardless of ability to pay under the constitution or laws of the United States or this state, the person shall be informed of his or her right to counsel. Persons
(2) (a) Except as provided in par. (b), a person entitled to counsel under sub. (1) who indicate indicates at any time that they wish he or she wants to be represented by a lawyer, and who claim that they are claims that he or she is not able to pay in full for a lawyer's services, shall immediately be permitted to contact the authority for indigency determinations specified under s. 977.07 (1). The authority for indigency determination in each county shall have daily telephone access to the county jail in order to identify all persons who are being held in the jail. The jail personnel shall provide by phone information requested by the authority.
(3) In any case in which the state public defender provides representation to an indigent person, the public defender may request that the applicable court reporter or clerk of circuit court prepare and transmit any transcript or court record. The request shall be complied with. The state public defender shall, from the appropriation under s. 20.550 (1) (f), compensate the court reporter or clerk of circuit court for the cost of preparing, handling, duplicating, and mailing the documents.
SECTION 28. 967.06 (2) (b) of the statutes is created to read:
967.06 (2) (b) If the person indicating that he or she wants to be represented by a lawyer is detained under ch. 48, 51, 55, or 938, the person shall be referred for appointment of counsel as provided under s. 48.23 (4), 51.60, 55.105, or 938.23 (4), whichever is applicable.
SECTION 29. 977.02 (2m) of the statutes is amended to read:
977.02 (2m) Promulgate rules regarding eligibility for legal services under this chapter, including legal services for children persons who are entitled to be represented by counsel without a determination of indigency, as provided in s. 48.23 (4), 51.60, 55.105, or 938.23 (4).
SECTION 30. 977.02 (3) of the statutes is amended to read:
977.02 (3) Promulgate rules regarding the determination of indigency of persons entitled to be represented by counsel, other than children persons who are entitled to be represented by counsel under s. 48.23, 51.60, 55.105, or 938.23, including the time period in which the determination must be made and the criteria to be used to determine indigency and partial indigency.
SECTION 31. 977.05 (4) (gm) of the statutes is amended to read:
977.05 (4) (gm) In accordance with the standards under pars. (h) and (i), accept referrals from judges and courts for the provision of legal services without a determination of indigency of children persons who are entitled to be represented by counsel under s. 48.23, 51.60, 55.105, or 938.23, appoint counsel in accordance with contracts and policies of the board, and inform the referring judge or court of the name and address of the specific attorney who has been assigned to the case.
SECTION 32. 977.05 (4) (h) of the statutes is amended to read:
977.05 (4) (h) Accept requests for legal services from children persons who are entitled to be represented by counsel under s. 48.23, 51.60, 55.105, or 938.23 and from indigent persons who are entitled to be represented by counsel under s. 967.06 or who are otherwise so entitled under the constitution or laws of the United States or this state and provide such persons with legal services when, in the discretion of the state public defender, such provision of legal services is appropriate.
SECTION 33. 977.05 (4) (i) 8. of the statutes is amended to read:
977.05 (4) (i) 8. Cases involving individuals who are subject to petitions for protective placement or involuntary administration of psychotropic medication under ch. 55.
SECTION 34. 977.06 (2) (a) of the statutes is amended to read:
977.06 (2) (a) A person seeking to have counsel assigned for him or her under s. 977.08, other than a child person who is entitled to be represented by counsel under s. 48.23, 51.60, 55.105, or 938.23, shall sign a statement declaring that he or she has not disposed of any assets for the purpose of qualifying for that assignment of counsel. If the representative or authority making the indigency determination finds that any asset was disposed of for less than its fair market value for the purpose of obtaining that assignment of counsel, the asset shall be counted under s. 977.07 (2) at its fair market value at the time it was disposed of, minus the amount of compensation received for the asset.
SECTION 35. 977.06 (2) (am) of the statutes is amended to read:
977.06 (2) (am) A person seeking to have counsel assigned for him or her under s. 977.08, other than a child person who is entitled to be represented by counsel under s. 48.23, 51.60, 55.105, or 938.23, shall sign a statement declaring that the information that he or she has given to determine eligibility for assignment of counsel he or she believes to be true and that he or she is informed that he or she is subject to the penalty under par. (b).
SECTION 36. 977.07 (1) (a) of the statutes is amended to read:
