2009 - 2010 LEGISLATURE
August 26, 2009 - Introduced by Representatives Sherman, Hebl, Grigsby, Hintz,
Bies, Berceau, Colon, Dexter, Fields, Jorgensen, Kessler, Mason, Molepske
Jr., A. Ott, Parisi, Petrowski, Pope-Roberts, Richards, Roys, Seidel, Smith,
Soletski, Spanbauer, Staskunas, Tauchen, Turner, Van Akkeren, Van Roy, A.
Williams and Young, cosponsored by Senators Coggs, Risser, Sullivan,
Miller, Olsen, Vinehout, Wirch, Robson, Lassa, Erpenbach, Lehman, Plale,
Hansen, Taylor and
Schultz. Referred to Committee on Judiciary and Ethics.
1An Act to repeal
977.07 (2); to renumber and amend
977.02 (3); to amend
20.550 (1) (fb), 303.065 (5) (dm), 973.06 (1) (e), 977.06 (1) (a), 977.06 (2) (a) and 3
977.085 (3); and to create
(a) to (d) of the statutes; relating to:
4criteria for determining indigency for purposes of representation by the State
5Public Defender 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, and proceedings concerning emergency detention,
involuntary civil commitment, protective placement, paternity determination, and
juvenile delinquency. The SPD provides counsel to children and juveniles in
protective services and delinquency proceedings regardless of the child's or juvenile's
income or assets. The SPD provides counsel to adults in proceedings concerning
involuntary commitment for mental health or alcoholism treatment, protective
placement or services, or involuntary administration of psychotropic medication
regardless of the adult's income or assets. In other types of proceedings, the SPD may
provide counsel only to people who 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 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 counsel and the county in which the court sits must pay the
This bill changes the criteria for determining indigency for the purpose 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.)
Additionally, 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
the person allegedly committed. The bill provides the Public Defender Board
authority for 49.25 new full-time equivalent general purpose revenue positions.
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:
AB395, s. 1
20.550 (1) (fb) of the statutes is amended to read:
(fb) Payments from clients; administrative costs.
The amounts in the 3
schedule for the costs of determining, collecting and processing the payments 4
received from persons as payment for legal representation under s.
977.07 (2), 5
977.075 or 977.076.
AB395, s. 2
303.065 (5) (dm) of the statutes is amended to read:
(dm) Payment for legal representation under s. 977.07 (2),
AB395, s. 3
973.06 (1) (e) of the statutes is amended to read:
(e) Attorney fees payable to the defense attorney by the county or 3
the state. If the court determines at the time of sentencing that the defendant's 4
financial circumstances are changed, the court may adjust the amount in accordance 5
with s. 977.07 (1) (a) and (2) rules promulgated under s. 977.02 (3)
AB395, s. 4
977.02 (3) of the statutes is renumbered 977.02 (3) (intro.) and 7
amended to read:
(intro.) Promulgate rules regarding the determination of indigency 9
of persons entitled to be represented by counsel, other than persons who are entitled 10
to be represented by counsel under s. 48.23, 51.60, 55.105, or 938.23, including the 11
time period in which the determination must be made and the criteria to be used to 12
determine indigency and partial indigency. The rules shall specify that, in
13determining indigency, the representative of the state public defender shall do all of
AB395, s. 5
(a) to (d) of the statutes are created to read:
(a) Consider the anticipated costs of effective representation for the 17
type of case in which the person seeks representation.
(b) Subject to par. (d), consider assets in the manner described in s. 49.145 (3) 19
(a) and treat assets as available to the person to pay the costs of legal representation 20
if the costs exceed the resource limitations under s. 49.145 (3) (a), except that the 21
representative of the state public defender shall exclude only the first $30,000 of the 22
equity value of the home that serves as the individual's homestead.
(c) Subject to par. (d), treat income as available to pay the costs of legal 24
representation to the person only if it exceeds the income limitations in s. 49.145 (3) 25
(d) Treat assets or income of the person's spouse as the person's assets or 2
income, unless the spouse was the victim of a crime the person allegedly committed.
AB395, s. 6
977.06 (1) (a) of the statutes is amended to read:
(a) Verify the information necessary to determine indigency under 5s. 977.07 (2) rules promulgated under s. 977.02 (3)
. The information provided by a 6
person seeking assigned counsel that is subject to verification shall include any 7
social security numbers provided on an application under sub. (1m), income records, 8
value of assets, eligibility for public assistance, and claims of expenses.
AB395, s. 7
977.06 (2) (a) of the statutes is amended to read:
(a) A person seeking to have counsel assigned for him or her under 11
s. 977.08, other than a person who is entitled to be represented by counsel under s. 12
48.23, 51.60, 55.105, or 938.23, shall sign a statement declaring that he or she has 13
not disposed of any assets for the purpose of qualifying for that assignment of 14
counsel. If the representative or authority making the indigency determination 15
finds that any asset was disposed of for less than its fair market value for the purpose 16
of obtaining that assignment of counsel, the asset shall be counted under s. 977.07
17(2) rules promulgated under s. 977.02 (3)
at its fair market value at the time it was 18
disposed of, minus the amount of compensation received for the asset.
AB395, s. 8
977.07 (2) of the statutes is repealed.
AB395, s. 9
977.085 (3) of the statutes is amended to read:
The board shall provide quarterly reports to the joint committee 22
on finance on the status of reimbursement for or recoupment of payments under ss. 23
48.275, 51.605, 55.107, 757.66, 938.275, 977.06, 977.07 (2),
977.075 and 977.076, 24
including the amount of revenue generated by reimbursement and recoupment. The 25
quarterly reports shall include any alternative means suggested by the board to
improve reimbursement and recoupment procedures and to increase the amount of 2
revenue generated. The department of justice, district attorneys, circuit courts and 3
applicable county agencies shall cooperate by providing any necessary information 4
to the state public defender.
The authorized FTE positions for the public defender 7
board are increased by 49.25 GPR positions on the effective date of this subsection, 8
to be funded from the appropriation under section 20.550 (1) (c) of the statutes, for 9
the purpose of providing legal representation to persons for whom the state public 10
defender assigns counsel.
(1) Indigency determinations.
This act first applies to cases opened on the 13
effective date of this subsection.
AB395, s. 12
This act takes effect on June 19, 2011, except as 15
The renumbering and amendment of section 977.02 (3) of the statutes, and 17
the creation of section 977.02 (3) (a) to (d) of the statutes take effect on the day after 18