Amendment ASA1-AB616

LRBs0293/2

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2003 - 2004 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2003 ASSEMBLY BILL 616

January 23, 2004 - Offered by Representative McCormick.

AB616-ASA1,1,11 An Act to repeal 51.45 (12) (b) 2., 977.07 (2) and 977.08 (2) (d); to renumber and amend 967.06 and 977.02 (3); to consolidate, renumber and amend 51.45 (12) (b) (intro.), 1. and 3.; to amend 20.550 (1) (f), 20.550 (1) (fb), 51.15 (9), 51.20 (3), 51.20 (18) (c), 51.35 (1) (e) 1., 51.35 (1) (e) 2. c., 51.45 (12) (c) 2., 51.45 (13) (b) 2., 51.45 (13) (d), 51.45 (13) (j), 51.45 (16) (c), 55.06 (11) (a), 303.065 (5) (dm), 809.30 (2) (d), 814.69 (1) (a), 880.33 (2) (a) 2., 973.06 (1) (e), 977.02 (2m), 977.05 (4) (gm), 977.05 (4) (h), 977.05 (4) (i) 4., 977.06 (1) (a), 977.06 (2) (a), 977.06 (2) (am), 977.07 (1) (a), 977.07 (1) (c), 977.08 (1), 977.08 (2) (intro.) and 977.085 (3); and to create 51.60, 55.06 (11) (bm), 967.06 (2) (b) and 977.02 (3) (a) to (d) of the statutes; relating to: indigency determinations and provision of legal services by the State Public Defender.

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 substitute amendment changes the criteria for determining indigency for the purposes of SPD representation. Under the substitute amendment, 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 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 substitute amendment 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. Finally, the substitute amendment provides the Public Defender Board with 44.25 new full-time equivalent general purpose revenue positions on May 1, 2005 (the day on which the substitute amendment's other changes become effective).

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB616-ASA1, s. 1 Section 1. 20.550 (1) (f) of the statutes is amended to read:

AB616-ASA1,3,6 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).

AB616-ASA1, s. 2 Section 2. 20.550 (1) (fb) of the statutes is amended to read:

AB616-ASA1,3,11 20.550 (1) (fb) Payments from clients; administrative costs. The amounts in the schedule for the costs of determining, collecting and processing the payments received from persons as payment for legal representation under s. 977.07 (2), 977.075 or 977.076.

AB616-ASA1, s. 3 Section 3. 51.15 (9) of the statutes is amended to read:

AB616-ASA1,3,20 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.

AB616-ASA1, s. 4 Section 4. 51.20 (3) of the statutes is amended to read:

AB616-ASA1,4,3 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.

AB616-ASA1, s. 5 Section 5. 51.20 (18) (c) of the statutes is amended to read:

AB616-ASA1,4,11 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 appointed under s. 51.60 shall be in accordance with ch. 977.

AB616-ASA1, s. 6 Section 6. 51.35 (1) (e) 1. of the statutes is amended to read:

AB616-ASA1,4,21 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.

AB616-ASA1, s. 7 Section 7. 51.35 (1) (e) 2. c. of the statutes is amended to read:

AB616-ASA1,4,24 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.

AB616-ASA1, s. 8 Section 8. 51.45 (12) (b) (intro.), 1. and 3. of the statutes are consolidated, renumbered 51.45 (12) (b) and amended to read:

AB616-ASA1,5,9 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.

AB616-ASA1, s. 9 Section 9. 51.45 (12) (b) 2. of the statutes is repealed.

AB616-ASA1, s. 10 Section 10. 51.45 (12) (c) 2. of the statutes is amended to read:

AB616-ASA1,5,17 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.

AB616-ASA1, s. 11 Section 11. 51.45 (13) (b) 2. of the statutes is amended to read:

AB616-ASA1,6,2 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).

AB616-ASA1, s. 12 Section 12. 51.45 (13) (d) of the statutes is amended to read:

AB616-ASA1,6,16 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 appointing counsel shall timely be appointed at public expense, as provided in s. 967.06 and ch. 977 for him or her under 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.

AB616-ASA1, s. 13 Section 13. 51.45 (13) (j) of the statutes is amended to read:

AB616-ASA1,6,25 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 recommited is represented by counsel and, if the person is indigent, appoint by appointing counsel for him or her, unless waived under 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).

AB616-ASA1, s. 14 Section 14. 51.45 (16) (c) of the statutes is amended to read:

AB616-ASA1,7,4 51.45 (16) (c) Payment of attorney fees for appointed attorneys in the case of children and indigents counsel appointed under s. 51.60 shall be in accordance with ch. 977.

AB616-ASA1, s. 15 Section 15. 51.60 of the statutes is created to read:

AB616-ASA1,7,9 51.60 Appointment of counsel. (1) Adults. (a) In any situation under this chapter in which an adult person has a right to be represented by counsel, the person shall be referred as soon as practicable to the state public defender, who shall appoint counsel for the person under s. 977.08 without a determination of indigency.

AB616-ASA1,7,11 (b) Except as provided in s. 51.45 (13) (b) 2., par. (a) does not apply if the person knowingly and voluntarily waives counsel.

AB616-ASA1,7,14 (2) Children. In any situation under this chapter in which a child has a right to be represented by counsel, counsel for the child shall be appointed as provided in s. 48.23 (4).

AB616-ASA1,7,17 (3) Retained counsel. Notwithstanding subs. (1) and (2), a person subject to proceedings under this chapter is entitled to retain counsel of his or her own choosing at his or her own expense.

AB616-ASA1, s. 16 Section 16. 55.06 (11) (a) of the statutes is amended to read:

AB616-ASA1,8,11 55.06 (11) (a) If from personal observation of a sheriff, police officer, fire fighter, guardian, if any, or authorized representative of a board designated under s. 55.02 or an agency designated by it it appears probable that an individual will suffer irreparable injury or death or will present a substantial risk of serious physical harm to others as a result of developmental disabilities, infirmities of aging, chronic mental illness, or other like incapacities if not immediately placed, the person making the observation may take into custody and transport the individual to an appropriate medical or protective placement facility. The person making placement shall prepare a statement at the time of detention providing specific factual information concerning the person's observations and the basis for emergency placement. The statement shall be filed with the director of the facility and shall also be filed with any petition under sub. (2). At the time of placement the individual shall be informed by the director of the facility or the director'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 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 child or is indigent par. (bm). The director or designee shall also provide the individual with a copy of the statement by the person making emergency placement.

AB616-ASA1, s. 17 Section 17. 55.06 (11) (bm) of the statutes is created to read:

AB616-ASA1,8,16 55.06 (11) (bm) 1. Unless an adult individual subject to an emergency placement under par. (a) knowingly and voluntarily waives 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.

AB616-ASA1,8,18 2. If a child is subject to an emergency placement under par. (a), counsel for the child shall be appointed as provided in s. 48.23 (4).

AB616-ASA1,8,21 3. Notwithstanding subds. 1. and 2., a person subject to an emergency placement under par. (a) is entitled to retain counsel of his or her own choosing at his or her own expense.

AB616-ASA1, s. 18 Section 18. 303.065 (5) (dm) of the statutes is amended to read:

AB616-ASA1,8,24 303.065 (5) (dm) Payment for legal representation under s. 977.07 (2) (2m), 977.075 or 977.076;

AB616-ASA1, s. 19 Section 19. 809.30 (2) (d) of the statutes, as affected by Supreme Court Order 02-01, is amended to read:

AB616-ASA1,9,11 809.30 (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), 55.06 (11) (a), 880.33 (2) (a) 2., or 938.23.

AB616-ASA1, s. 20 Section 20. 814.69 (1) (a) of the statutes is amended to read:

AB616-ASA1,9,16 814.69 (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.

AB616-ASA1, s. 21 Section 21. 880.33 (2) (a) 2. of the statutes is amended to read:

AB616-ASA1,9,24 880.33 (2) (a) 2. If the person requests but is unable to obtain legal counsel, the court shall appoint legal counsel. If the petition contains the allegations under s. 880.07 (1m), the court shall refer the person to the state public defender, who shall appoint counsel under s. 977.08 without a determination of indigency. If the person is represented by counsel appointed under s. 977.08 in a proceeding for a protective placement under s. 55.06 or for the appointment of a guardian under s. 880.07 (1m), the court shall order the counsel appointed under s. 977.08 to represent the person.

AB616-ASA1, s. 22 Section 22. 967.06 of the statutes is renumbered 967.06 (1) and amended to read:

AB616-ASA1,10,8 967.06 (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

AB616-ASA1,10,16 (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.

AB616-ASA1,10,22 (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.

AB616-ASA1, s. 23 Section 23. 967.06 (2) (b) of the statutes is created to read:

AB616-ASA1,11,2 967.06 (2) (b) If the person indicating that he or she wants to be represented by a lawyer is detained under ch. 48, 51, 55, 880, or 938, the person shall be referred for appointment of counsel as provided under s. 48.23 (4), 51.60, 55.06 (11) (bm), 880.33 (2) (a) 2., or 938.23 (4), whichever is applicable.

AB616-ASA1, s. 24 Section 24. 973.06 (1) (e) of the statutes is amended to read:

AB616-ASA1,11,7 973.06 (1) (e) Attorney fees payable to the defense attorney by the county or the state. If the court determines at the time of sentencing that the defendant's financial circumstances are changed, the court may adjust the amount in accordance with s. 977.07 (1) (a) and (2) rules promulgated under s. 977.02 (3).

AB616-ASA1, s. 25 Section 25. 977.02 (2m) of the statutes is amended to read:

AB616-ASA1,11,12 977.02 (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, 55.06 (11) (a), 880.33 (2) (a) 2., or 938.23 (4).

AB616-ASA1, s. 26 Section 26. 977.02 (3) of the statutes is renumbered 977.02 (3) (intro.) and amended to read:

AB616-ASA1,11,21 977.02 (3) (intro.) 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, 55.06 (11) (a), 880.33 (2) (a) 2., 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. The rules shall specify that, in determining indigency, the representative of the state public defender shall do all of the following:

AB616-ASA1, s. 27 Section 27. 977.02 (3) (a) to (d) of the statutes are created to read:

AB616-ASA1,11,24 977.02 (3) (a) Consider the anticipated costs of effective representation for the type of case in which the person seeks representation.

AB616-ASA1,12,5 (b) Subject to par. (d), consider assets in the manner described in s. 49.145 (3) (a) and treat assets as available to the person if they exceed the resource limitation in that paragraph, except that the representative of the state public defender shall exclude only the first $30,000 of the equity value of the home that serves as the individual's homestead.