Interested persons are invited to comment on the rule by
March 15, 2012. Written comments should be addressed to: Kathy Pakes, SPD, PO Box 7923, Madison, WI 53707-7923, or by email:
pakesk@opd.wi.gov.
Copies of Proposed Rule
You may contact Kathy Pakes at
pakesk@opd.wi.gov or by telephone at (608) 266-0087 to request a copy (at no cost) of the rule and fiscal note be sent to you by U.S. mail.
Analysis Prepared by the Wisconsin Public Defender
Statutes interpreted
Statutory authority
Explanation of agency authority
Wis. Stats. s.
977.02 (3) authorizes the State Public Defender Board to promulgate rules regarding indigency and eligibility for legal services. In determining indigency, Wis. Stats. s.
977.02 (3) (b) and
(c) directs the State Public Defender to consider a person's available assets and income.
The executive budget act of the 2011 legislature, Act 32, sections 3559d and 3559h, made the following changes to the way by which the SPD considers the assets and income of persons applying for public defender representation:
Assets:
Prior legislation,
2009 Act 164, directed the State Public Defender, in determining whether someone was eligible for public defender representation, to consider assets in the manner described in Wis. Stats. 49.145 (3) (a), (Wisconsin Works).
2011 Act 32, s.
3559d changed these Act 164 provisions relating to W2, and directs the SPD to make the eligibility determination based on a combined equity value of available assets, without regard to asset valuation under Wis. Stats. s.
49.145 (3) (a).
See Wis. Stats. s.
977.02 (3) (b).
Income:
Prior legislation,
2009 Act 164, directed the SPD to use 115% of the federal poverty guidelines as the applicable cost of living when making a determination of eligibility. Under prior legislation, eligibility for public defender representation would automatically change if the federal poverty guidelines were adjusted.
Pursuant to
2011 Act 32, s.
3559h eligibility will not automatically change when the federal poverty guideline is updated. Instead, for purposes of determining eligibility, the cost of living is frozen at 115% of the 2011 federal poverty guideline. Thus, in the event the federal poverty guideline changes, the state public defender will still use 115% of the 2011 rate in its determination of financial eligibility.
See, Wis. Stats. s.
977.02 (3) (c).
Related statute or rule
None.
Plain language analysis
2011 Act 32 freezes income eligibility for public defender representation at 115% of the 2011 federal poverty guidelines.
Summary of, and comparison with, existing or proposed federal regulations
In the federal system, the Criminal Justice Act (CJA) requires that representation be provided to financially eligible persons for proceedings and matters covered by the CJA.
The determination of eligibility for representation under the CJA is a judicial function to be performed by the court or U.S. magistrate judge after making appropriate inquiries concerning the person's financial condition. Unless it will result in undue delay, fact-finding concerning the person's eligibility for appointment of counsel should be completed prior to the person's first appearance in court. [Guide, § 210.40.20(a), (b)][18 U.S.C. § 3006A(b)]
A person is considered “financially unable to obtain counsel" within the meaning of the CJA
http://www.law.cornell.edu/uscode/18/3006A.html - b if the person's net financial resources and income are insufficient to obtain qualified counsel. In determining whether such insufficiency exists, consideration should be given to:
• the cost of providing the person and the person's dependents with the necessities of life, and
• the cost of the defendant's bail bond if financial conditions are imposed, or the amount of the deposit defendant is required to make to secure release on bond.
Any doubts as to a person's eligibility should be resolved in the person's favor; erroneous determinations of eligibility may be corrected at a later time. At the time of determining eligibility, the court or U.S. magistrate judge should inform the person of the penalties for making a false statement, and of the obligation to inform the court and the person's attorney of any change in financial status.
Comparison with rules in adjacent states
Iowa: Iowa Code sec. 815.9
Eligibility for public defender representation is tied to the United State poverty level as defined by the most recently revised poverty income guidelines published by the United States department of health and human services. Generally, a person with an income level at or below 125% of the federal poverty guidelines will qualify for public defender representation. Persons with an income of 125% to 200% of the federal poverty guidelines may qualify for public defender representation if the court finds not appointing counsel would cause the person substantial hardship.
Illinois:
Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.
Michigan:
Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations are made on a county by county basis.
Minnesota:
Has a statewide public defender system. Guidelines for those persons who qualify for representation may be viewed at:
http://www.house.leg.state.mn.us/hrd/pubs/ss/ssmpds.htm In Minnesota a defendant is financially unable to obtain counsel if the defendant, or a defendant's dependent (residing in the same household), receives means-tested governmental benefits, or, considering the defendant's liquid assets and current income, the defendant would be unable to pay the reasonable costs charged by a private attorney.
Upon disposition of the case, the defendant must pay a $28 co-payment, unless the court waives the co-payment. The statute does not indicate when a court should exercise its discretion to waive the co-payment. In 2003, the Minnesota Court of Appeals held that a defendant is exempt from the co-payment and the court must waive the co-payment when a defendant is indigent or when the co-payment would cause manifest hardship on a defendant.
Summary of factual data and analytical methodologies
N/A
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report
N/A
Effect on Small Business
None.
Fiscal Estimate and Economic Impact Analysis
Agency Contact Person
Questions regarding these rules may be directed to Kathy Pakes at
pakesk@opd.wi.gov or 315 N. Henry Street, 2
nd Floor, Madison, WI 53703.
Place to Submit Comments
Comments may be submitted to Kathy Pakes at
pakesk@opd.wi.gov or 315 N. Henry Street, 2
nd Floor, Madison, WI 53703.
Proposed Rule
PD 6.025 (1) and (2) (a) are amended to read:
PD 6.025 (1) The state public defender shall determine whether persons subject to payment for legal representation have the ability to pay all, or part of, the costs of representation. A person
has the ability to pay some amount to these costs if the person has gross income in excess of the amount specified in 42 U.S.C. s. 9902(2) (2011) or has assets treated under s. PD 3.03(2) as available to pay the costs of legal representation.with income in excess of
the amount specified in s. 49.001 (5), Stats., or assets available to pay the costs of legal representation under s. PD 3.03 (2) has the ability to pay some amount toward these costs. The state public defender may defer the determination of ability to pay until after the time period for payment of the optional discount amount specified in s.
PD 6.02 has expired.
(2) (a) The person
has gross income exceeding 115% of the amount specified in 42 U.S.C. s. 9902(2)(2011) or has assets treated under s. PD 3.03(2) as available to pay the costs of legal representation.is determined to have income in excess of the amount specified in s. 49.001 (5), Stats.,or assets available to pay the costs of legal representation under s. PD 3.03 (2).
Notice of Hearing
Safety and Professional Services
Cemetery Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Cemetery Board in sections 227.11 (2) and 961.335 (8), Wis. Stats., and interpreting section 961.335, Wis. Stats., the Cemetery Board will hold a public hearing at the time and place indicated below to consider an order to promulgate Chapters
CB 3 to
5, Wis. Admin. Code. The proposed rules relate to the transfer of authority for regulation of warehouses storing cemetery pre-need merchandise, changing trustees of care or pre-need trust funds, and alternative care funds investments from the department of safety and professional services to the cemetery board.
Hearing Information
Date: Tuesday, March 13, 2012
Time: 9:45 A.M.
Location: 1400 East Washington Avenue
Room 121A
Madison, WI 53703
Appearances at the Hearing and Submittal of Written Comments
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions, and argument in writing as well. Facts, opinions, and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Safety and Professional Services, Division of Board Services, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received at or before the public hearing to be included in the record of rule-making proceedings.
Comments may be submitted to Kris Anderson, Paralegal, Department of Safety and Professional Services, 1400 E. Washington Ave., Rm. 117, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email to
Kristine1.Anderson@Wisconsin.gov. Comments must be received on or before the date and time of the public hearing for inclusion in the record of rule-making proceedings. A public hearing on this proposal will be held at the department on March 13, 2012, in Rm. 121A, at 9:45 a.m.
Copies of Proposed Rule
Copies of this proposed rule are available upon request to Kris Anderson, Paralegal, Department of Safety and Professional Services, Division of Board Services, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or by email at
Kristine1.Anderson@wisconsin.gov.
Analysis Prepared by the Department of Safety and Professional Services
Statutes interpreted
Statutory authority
Explanation of agency authority
2007 Wisconsin Act 174 transferred authority for regulation of warehouses that store cemetery merchandise sold under a preneed sales contract, changes of trustees for care and preneed trust funds, and alternative care fund investments from the department of safety and professional services to the cemetery board. Thus, Ch.
157 and s.
440.905, Stats., grant sole authority for implementation of the laws related to these regulatory areas to the cemetery board.
Plain language analysis
These proposed rules implement the statutory changes that resulted from the passage of
2007 Wis. Act 174. The rules transfer to the cemetery board the authority to regulate: warehouses that store cemetery merchandise sold under a preneed sales contract; changes of trustees for care and preneed trust funds; and alternative care fund investments from the department. The administrative code provisions that Act 174 affected are currently located in Chs.
SPS 52 to
54. To reflect the transfer of authority effected by Act 174, the chapter and rule titles must be changed from “SPS" to “CB," and the chapter and rule numbers must be changed from those using 52 to 54 to those using 3 to 5.
The substance of the rules in Chs.
SPS 52 to
54, formerly RL 52 to 54, will not change by this proposal. These proposed rules amend those chapters only to reflect the transfer of regulatory authority, the 2011 department name-change, and other minor information updates such as addresses referenced, etc.
Proposed Ch.
CB 4 adds some provisions that are closely related to those in existing Ch.
SPS 53. First, new s.
CB 4.015 defines “financial institution," as used in the chapter, to have the meaning set forth in s.
705.01 (3), Stats. That definition appears in s.
157.19 (1), Stats., and applies to all of s.
157.19, which is the enabling statute for the rules set forth in former Ch.
RL 53 and proposed Ch.
CB 4, Wis. Admin. Code. The cemetery board adds this definition to the existing rules for increased clarity regarding what constitutes a financial institution within the meaning of that chapter.
Existing rules require an affidavit from only the transferee financial institution in a change of trustee for care funds or preneed trust funds transactions. Sections
SPS 53.03 (1) (d),
(2) (d). The proposed rules would also require an affidavit from the transferor financial institution as well. Sections
CB 4.03 (1) (dm),
(2) (dm). The transferor's affidavit must confirm that all deposits into the funds to be transferred were timely, and that there have been no withdrawals of the principal. The transferor's affidavit will assure that the requested change of trustee is not for purposes of hiding impropriety in the transferor institution's management of the funds. The cemetery board is authorized to impose the requirement for the transferor's affidavit under ss.
157.19 (d) and
440.905 (2). The assurance provided from the transferor's affidavit will significantly enhance the board's ability to oversee change-of-trustee transactions and the department's enforcement of the board's rules, both of which will result in better protection of the funds involved.
Finally, given the cemetery board's quarterly meeting schedule, a full-board determination of a change-of-trustee request within 60 days of its receipt, as required by current s.
SPS 53.02 (4), may not be feasible. To facilitate timely determinations of such requests, proposed rule s.
CB 4.02 (4) provides for determination by the board's designee if necessary.
Summary of, and comparison with, existing or proposed federal regulations
There are no existing or proposed federal regulations related to the regulatory areas of the proposed rules.
Comparison with rules in adjacent states
Illinois:
The Illinois statutes, called the Illinois Compiled Statutes (ILCS), charge the state's Department of Financial and Professional Regulation (DFPR) with governing cemeteries pursuant to the Cemetery Oversight Act. The DFPR's powers include the authority to promulgate rules for the administration and enforcement of that Act. Section 225 ILCS 411/5-25. Licensed cemetery authorities may accept any gift or payment for the care of the cemetery or a cemetery lot to establish a trust fund for the specified purpose. Section 225 ILCS 411/15-5 (a). The cemetery authority acts as trustee of amounts received until depositing them with a corporate fiduciary. Section 225 ILCS 411/15-5 (b). Under s. 225 ILCS 620/1-5.05, “corporate fiduciary" means a trust company, such as a bank or other financial institution, or an individual or entity that has obtained a certificate of authority under the Corporate Fiduciary Act to exercise trust powers.
The Illinois State Comptroller regulates pre-need contract salespersons, pre-need contracts, and cemetery care or pre-need trust funds under both the Illinois Funeral or Burial Funds Act, ch.
225 ILCS 45, and the Illinois Pre-Need Cemetery Sales Act, ch.
815 ILCS 390. A salesperson may change the trustee of pre-need trust funds upon no less than 30 days' prior notice to the Comptroller. Section 225 ILCS 45/2 (g). When a seller changes trustees, the trustee must provide written notice of the change to the Comptroller at least 28 days prior to the effective date of the change. Sections 225 ILCS 45/2 (g), 815 ILCS 390/16 (b).
