There are no clear policy alternatives as these rule changes are not meant to change policy but rather codify current practice. The current rules indicate the process for an appeal and that an appeal is governed by chapter 227. The goal of the changes to PD 1.05 and 4.03 is to be sure the process is the same for both types of appeals.
The rules also indicated the State Public Defender is to consider the reasonableness of a bill before adjusting a bill. These rule changes would clarify what factors are being used to determine reasonableness of a bill. If a private attorney does not agree with the State Public Defender’s decision regarding certification or a bill adjustment, these rule changes would then make clear the process for appealing that decision. The alternative of not conducting this evaluation and update would be to leave the rules unchanged, which would result in lack of clarity about the process.
4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
Wis. Stat. s. 977.02 states the board shall: [r]eview decisions of the state public defender regarding bill payments, as provided under s. 977.08 (4). The board may affirm, modify or reject the decision of the state public defender. [p]erform all other duties necessary and incidental to the performance of any duty enumerated in this chapter.
Wis. Stat. s. 977.08(3)(b) A final set of lists for each county shall be prepared, certified and annually updated by the state public defender. Persons may not be excluded from any list unless the state public defender states in writing the reasons for such action in the context of existing rules adopted by the state public defender board. Any attorney thus excluded shall then have the opportunity to appeal the state public defender's decision to the board, which shall issue a final decision in writing. Wis. Stat. s. 977.08(4) At the conclusion of each case, any private local attorney who has been appointed shall submit a copy of his or her bill to the state public defender. The state public defender shall review the bill and reject it or approve it in whole or in part. The state public defender shall then pay the bill according to the rates under sub. (4m). Any attorney dissatisfied with the decision of the state public defender regarding the bill may have the decision reviewed by the board. This subsection does not apply if the attorney is working under an agreement authorized under s. 977.02 (7m) or a contract authorized under sub. (3) (f). 5. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:
100 hours. Staff time will largely be required to draft the rule, work with partners and stakeholders, have public hearings, and to follow the rules promulgation process.
6. List with description of all entities that may be affected by the proposed rule:
The proposed rule changes apply to private bar attorneys who accept appointments from the State Public Defender. These changes are not anticipated to change policy or practice therefore these changes are not anticipated to substantially impact attorneys who appeal agency decisions to the Public Defender Board. Appeals of State Public Defender decisions to the Board are rare, less than five a year.
7. Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
N/A
8. Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses):
The proposed rule will have no to minimal economic impact on small businesses and the state’s economy as a whole.
Contact Person:
Jaclyn Shelton
Legal Counsel
608-261-5417
