•
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:
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
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.
Proposed Rule
PD 3.03 (2) and (3) are amended to read:
PD 3.03 (2) The state public defender shall consider assets in the manner described in s. 49.145 (3) (a), Stats., and shall consider assets as available to pay the costs of legal representation if the assets exceed the resource limitations of s. 49.145 (3) (a), Stats., treat assets as available to the person to pay the costs of legal representation if the assets exceed $2500 in combined equity value except that the state public defender shall exclude the equity value of vehicles up to a total equity value of $10,000 and shall exclude the first $30,000 of the equity value of the home that serves as the individual's homestead. exclusion from consideration for the applicant's homestead shall be limited to the first $30,000 of equity .
(3) Subject to subs. (4) and (5), the state public defender shall consider income as available to pay the costs of legal representation if the
gross income exceeds
115 percent of the amount specified in 42 U.S.C. s. 9902(2) (2011) the income limitations of s. 49.145 (3) (b), Stats.
STATE OF WISCONSIN
DEPARTMENT OF ADMINISTRATION
DOA 2049 (R 07/2011)
ADMINISTRATIVE RULES
FISCAL ESTIMATE AND
ECONOMIC IMPACT ANALYSIS
|
Type of Estimate and Analysis
|
Original X Updated Corrected
|
Administrative Rule Chapter, Title and Number
|
PD 3.03; PD 6.025
|
Subject
|
Eligibility Guidelines for Public Defender Representation
|
Fund Sources Affected
|
Chapter 20 , Stats. Appropriations Affected
|
X GPR FED PRO PRS SEG SEG-S
|
20.550 (1)
|
Fiscal Effect of Implementing the Rule
|
No Fiscal Effect
X Indeterminate
|
Increase Existing Revenues
Decrease Existing Revenues
|
X Increase Costs
Could Absorb Within Agency's Budget
Decrease Costs
|
The Rule Will Impact the Following (Check All That Apply)
|
State's Economy
X Local Government Units
|
Specific Businesses/Sectors
Public Utility Rate Payers
|
Would Implementation and Compliance Costs Be Greater Than $20 million?
Yes X No
|
Policy Problem Addressed by the Rule
|
Wis. Stats. Sec. 977.02 authorizes the State Public Defender Board to promulgate rules regarding indigency and eligibility for legal services. In determining indigency, Sec. 977.02 (3) directs the State Public Defender to consider a person's available assets and income. Sec. 977.02 (3) (c) directs the SPD to consider as income only that income which exceeds the income limitations in s. 49.145 (3) (b). 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 s. 49.145 (3) (a) (Wisconsin Works). 2011 Act 32 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. Sec. 49.145 (3) (a).
Income:
Prior legislation, 2009 Act 164, tied eligibility to the federal poverty guidelines. Under prior legislation, eligibility for public defender representation would automatically change if the federal poverty guidelines were adjusted.
Pursuant to 2011 Act 32, eligibility will not automatically change when the federal poverty guideline is updated. Instead, income eligibility is frozen at 115% of the 2011 federal poverty guideline. Thus, in the event the federal poverty guideline changes, eligibility for state public defender representation will still be determined by the 2011 rate.
|
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
|
As the federal poverty guideline is adjusted upward, and the eligibility for public defender representation remains stagnant at the 2011 level, local governments (counties) will pick up the cost to represent those defendants who earn more than the 2011 federal poverty guidelines, but do not have funds to hire a lawyer and are deemed eligible by the courts for representation.
|
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
|
N/A
|
Long Range Implications of Implementing the Rule
|
As the federal poverty guideline is adjusted upward, and the eligibility for public defender representation remains stagnant at the 2011 level, the counties will pick up the cost to represent those defendants who earn more than the 2011 federal poverty guidelines, but do not have funds to hire a lawyer and are deemed eligible by the courts for representation.
|
Compare With Approaches Being Used by Federal Government
|
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)]
A person is considered “financially unable to obtain counsel" within the meaning of the CJA [18 U.S.C. § 3006A(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.
|
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
|
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.
|
Notice of Proposed Rulemaking
Without Public Hearing
Public Defender Board
The State of Wisconsin Public Defender Board (SPD) announces the revision of section
PD 6.025, relating to determination of ability to pay, relating to whether persons subject for payment for legal representation have the ability to pay all, or part of, the costs of representation.
The proposed rule brings an existing rule into conformity with sections
977.02 (3) (b) and
(c), Stats., enacted pursuant to
2011 Act 32. Pursuant to section
227.16 (2) (b), Stats., a public hearing is not required.
Submittal of Written Comments
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).
