2007 - 2008 LEGISLATURE
November 9, 2007 - Introduced by Senators Sullivan, Coggs, Breske, Lassa,
Olsen, Plale, Risser, Roessler, Taylor, Vinehout
and Erpenbach,
cosponsored by Representatives Bies, Hintz, Grigsby, Seidel, Albers,
Berceau, Cullen, Hines, Hraychuck, Jeskewitz, Kessler, Kramer, Kreuser,
Mason, Molepske, Montgomery, Musser, Nelson, Parisi, Pocan,
Pope-Roberts, Shilling, Soletski, Staskunas, Tauchen, Townsend, Turner,
Van Roy
and Wood. Referred to Committee on Judiciary, Corrections, and
Housing.
SB321,1,5 1An Act to repeal 977.07 (2); to renumber and amend 977.02 (3); to amend
220.550 (1) (fb), 303.065 (5) (dm), 973.06 (1) (e), 977.06 (1) (a), 977.06 (2) (a) and
3977.085 (3); and to create 977.02 (3) (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, 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. 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 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.)
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
that the person allegedly committed. The bill provides the Public Defender Board
with 51.30 new full-time equivalent general purpose revenue positions on July 1,
2009, 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:
SB321, s. 1 1Section 1. 20.550 (1) (fb) of the statutes is amended to read:
SB321,2,52 20.550 (1) (fb) Payments from clients; administrative costs. The amounts in the
3schedule for the costs of determining, collecting and processing the payments
4received from persons as payment for legal representation under s. 977.07 (2),
5977.075 or 977.076.
SB321, s. 2 6Section 2. 303.065 (5) (dm) of the statutes is amended to read:
SB321,2,87 303.065 (5) (dm) Payment for legal representation under s. 977.07 (2) (2m),
8977.075 or 977.076;
SB321, s. 3 9Section 3. 973.06 (1) (e) of the statutes is amended to read:
SB321,3,4
1973.06 (1) (e) Attorney fees payable to the defense attorney by the county or
2the state. If the court determines at the time of sentencing that the defendant's
3financial circumstances are changed, the court may adjust the amount in accordance
4with s. 977.07 (1) (a) and (2) rules promulgated under s. 977.02 (3).
SB321, s. 4 5Section 4. 977.02 (3) of the statutes is renumbered 977.02 (3) (intro.) and
6amended to read:
SB321,3,127 977.02 (3) (intro.) Promulgate rules regarding the determination of indigency
8of persons entitled to be represented by counsel, other than children who are entitled
9to be represented by counsel under s. 48.23 or 938.23, including the time period in
10which the determination must be made and the criteria to be used to determine
11indigency and partial indigency. The rules shall specify that, in determining
12indigency, the representative of the state public defender shall do all of the following:
SB321, s. 5 13Section 5. 977.02 (3) (a) to (d) of the statutes are created to read:
SB321,3,1514 977.02 (3) (a) Consider the anticipated costs of effective representation for the
15type of case in which the person seeks representation.
SB321,3,2016 (b) Subject to par. (d), consider assets in the manner described in s. 49.145 (3)
17(a) and treat assets as available to the person to pay the costs of legal representation
18if they exceed the resource limitation under s. 49.145 (3) (a), except that the
19representative of the state public defender shall exclude only the first $30,000 of the
20equity value of the home that serves as the individual's homestead.
SB321,3,2321 (c) Subject to par. (d), treat income as available to pay the costs of legal
22representation to the person only if it exceeds the income limitations in s. 49.145 (3)
23(b).
SB321,4,3
1(d) Treat assets or income of the person's spouse as the person's assets or
2income, unless the spouse was the victim of a crime that the person allegedly
3committed.
SB321, s. 6 4Section 6. 977.06 (1) (a) of the statutes is amended to read:
SB321,4,95 977.06 (1) (a) Verify the information necessary to determine indigency under
6s. 977.07 (2) rules promulgated under s. 977.02 (3). The information provided by a
7person seeking assigned counsel that is subject to verification shall include any
8social security numbers provided on an application under sub. (1m), income records,
9value of assets, eligibility for public assistance, and claims of expenses.
SB321, s. 7 10Section 7 . 977.06 (2) (a) of the statutes is amended to read:
SB321,4,1911 977.06 (2) (a) A person seeking to have counsel assigned for him or her under
12s. 977.08, other than a child who is entitled to be represented by counsel under s.
1348.23 or 938.23, shall sign a statement declaring that he or she has not disposed of
14any assets for the purpose of qualifying for that assignment of counsel. If the
15representative or authority making the indigency determination finds that any asset
16was disposed of for less than its fair market value for the purpose of obtaining that
17assignment of counsel, the asset shall be counted under s. 977.07 (2) rules
18promulgated under s. 977.02 (3)
at its fair market value at the time it was disposed
19of, minus the amount of compensation received for the asset.
SB321, s. 8 20Section 8. 977.07 (2) of the statutes is repealed.
SB321, s. 9 21Section 9. 977.085 (3) of the statutes is amended to read:
SB321,5,522 977.085 (3) The board shall provide quarterly reports to the joint committee
23on finance on the status of reimbursement for or recoupment of payments under ss.
2448.275, 757.66, 938.275, 977.06, 977.07 (2), 977.075 and 977.076, including the
25amount of revenue generated by reimbursement and recoupment. The quarterly

1reports shall include any alternative means suggested by the board to improve
2reimbursement and recoupment procedures and to increase the amount of revenue
3generated. The department of justice, district attorneys, circuit courts and
4applicable county agencies shall cooperate by providing any necessary information
5to the state public defender.
SB321, s. 10 6Section 10 . Nonstatutory provisions.
SB321,5,117 (1) Position increase. The authorized FTE positions for the public defender
8board are increased by 51.30 GPR positions on the effective date of this subsection,
9to be funded from the appropriation under section 20.550 (1) (c) of the statutes, for
10the purpose of providing legal representation to persons for whom the state public
11defender assigns counsel.
SB321, s. 11 12Section 11 . Initial applicability.
SB321,5,1413 (1) Indigency determinations. This act first applies to cases opened on the
14effective date of this subsection.
SB321, s. 12 15Section 12. Effective dates. This act takes effect on July 1, 2009, except as
16follows:
SB321,5,1917 (1) The renumbering and amendment of section 977.02 (3) of the statutes, and
18the creation of section 977.02 (3) (a) to (d) of the statutes take effect on the day after
19publication.
SB321,5,2020 (End)
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