Chapter 977

Ch. 977 Cross-reference Cross-reference: See definitions in s. 967.02.

Ch. 977 Cross-reference Cross-reference: See also PD, Wis. adm. code.

977.01 977.01 Definitions. In this chapter, unless the context requires otherwise:

977.01(1) (1) “Board” means the public defender board.

977.01(2) (2) “Public assistance” means relief provided by counties under s. 59.53 (21), Wisconsin works under ss. 49.141 to 49.161, medical assistance under subch. IV of ch. 49, low-income energy assistance under s. 16.27, weatherization assistance under s. 16.26, and the food stamp program under 7 USC 2011 to 2029.

977.01 History History: 1977 c. 29; 2003 a. 33 ss. 1913, 2776, 2777.

977.02 977.02 Board; duties. The board shall:

977.02(1) (1) Appoint the state public defender and establish the state public defender’s salary under s. 20.923.

977.02(2) (2) Submit the budget of the state public defender to the governor after such budget is submitted to the board by the state public defender and approved by the board.

977.02(2m) (2m) Promulgate rules regarding eligibility for legal services under this chapter, including legal services for persons who are entitled to be represented by counsel without a determination of indigency, as provided in s. 48.23 (4), 51.60, 55.105, 938.23 (4), or 980.03 (2) (a).

977.02(3) (3) Promulgate rules regarding the determination of indigency of persons entitled to be represented by counsel, other than children who are entitled to be represented by counsel under s. 48.23 or 938.23 or persons who are entitled to be represented by counsel under s. 51.60, 55.105, or 980.03 (2) (a), 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:

977.02(3)(a) (a) Consider the anticipated costs of effective representation for the type of case in which the person seeks representation.

977.02(3)(b) (b) Subject to par. (d), treat assets as available to the person to pay the costs of legal representation if the assets exceed $2,500 in combined equity value. In determining the combined equity value of assets, the representative of 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.

977.02(3)(c) (c) Subject to par. (d), treat income as available to the person to pay the costs of legal representation only if the gross income exceeds 115 percent of the federal poverty guideline, as defined in 42 USC 9902 (2) (2011). In calculating gross income under this paragraph, the representative of the state public defender shall include all earned and unearned income of the person, except any amount received under section 32 of the Internal Revenue Code, as defined in s. 71.01 (6), any amount received under s. 71.07 (9e), any payment made by an employer under section 3507 of the Internal Revenue Code, as defined in s. 71.01 (6), any student financial aid received under any federal or state program, any scholarship used for tuition and books, and any assistance received under s. 49.148. In determining the earned and unearned income of the individual, the representative of the state public defender may not include income earned by a dependent child of the person.

977.02(3)(d) (d) 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 the person allegedly committed.

977.02(4) (4) Promulgate rules regarding the determination of payments required of persons found to be indigent in part.

977.02(4m) (4m) Promulgate rules for payments to the state public defender under s. 977.075.

977.02(4r) (4r) Promulgate rules that establish procedures to provide the department of administration with any information concerning the collection of payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e) or 977.076 (1).

977.02(5) (5) Promulgate rules establishing procedures to assure that representation of indigent clients by the private bar at the initial stages of cases assigned under this chapter is at the same level as the representation provided by the state public defender.

977.02(6) (6) Promulgate rules to accommodate the handling of certain potential conflict of interest cases by the office of the state public defender. The rules shall not provide for the automatic referral of all potential conflict of interest cases to private counsel.

977.02(7) (7) Review 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.

977.02(7m) (7m) Establish agreements with the state bar association, local bar associations, law firms and private counsel designed to encourage a certain amount of legal representation under this chapter without compensation as a service to the state.

977.02(7r) (7r) 

977.02(7r)(a) (a) Promulgate rules to allow the reduction of payment rates for cases assigned by the state public defender under s. 977.08 (4m) for any of the following:

977.02(7r)(a)1. 1. A reduction of not more than $2 per hour for time spent in court.

977.02(7r)(a)2. 2. A reduction of not more than $2 per hour for time spent out of court, excluding travel.

977.02(7r)(b) (b) Any reduction under par. (a) applies to cases assigned on or after the effective date of the applicable rule promulgated under par. (a).

977.02(8) (8) Perform all other duties necessary and incidental to the performance of any duty enumerated in this chapter.

977.02(9) (9) Promulgate rules establishing the maximum fees that the state public defender may pay for copies, in any format, of materials that are subject to discovery in cases in which the state public defender or counsel assigned under s. 977.08 provides legal representation. In promulgating the rules under this subsection, the board shall consider information regarding the actual, necessary, and direct cost of producing copies of materials that are subject to discovery.

977.02 History History: 1977 c. 29; 1979 c. 221, 356; 1981 c. 20; 1985 a. 29; 1987 a. 82, 399; 1989 a. 31; 1993 a. 451; 1995 a. 27, 77; 2007 a. 20; 2009 a. 28, 164; 2011 a. 32; 2017 a. 184, 359; 2021 a. 238 ss. 32, 45.

977.02 Cross-reference Cross-reference: See also PD, Wis. adm. code.

977.03 977.03 Board; powers.

977.03(1) (1) The board may remove the state public defender pursuant to the procedure under s. 977.05 (2). The board may enter into contracts with federal governmental agencies and local public defender organizations for the provision of legal services under this chapter.

977.03(2) (2) The board may promulgate rules to establish exceptions to limiting the amount that may be reimbursed for investigative or expert services under s. 977.05 (4r).

977.03(2m) (2m) The board may promulgate rules that establish procedures to collect payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e) or 977.076 (1) from a prisoner’s prison financial account.

977.03(3) (3) The state public defender may establish procedures by rule under which the state public defender may appoint attorneys without regard to s. 977.08 (3) (c) and (d) based on the state public defender’s evaluation of the attorneys’ performance.

977.03 History History: 1977 c. 29; 1991 a. 269; 1993 a. 437; 1995 a. 27, 77.

977.03 Cross-reference Cross-reference: See also PD, Wis. adm. code.

977.04 977.04 Board; restrictions. The board shall not make any decision regarding the handling of any case nor interfere with the state public defender or any member of his or her staff in carrying out professional duties.

977.04 History History: 1977 c. 29.

977.05 977.05 State public defender.

977.05(1) (1) Appointment. The board shall appoint a state public defender, who shall be a member of the State Bar of Wisconsin. The state public defender shall serve for a period of 5 years and shall continue until a successor is appointed, except that at the conclusion of the 5-year term of the state public defender in office as of July 1, 1980, the state public defender shall be appointed to serve at the pleasure of the board. He or she shall devote full time to the performance of duties as state public defender.

977.05(2) (2) Removal. During a 5-year term commencing prior to July 1, 1980, the state public defender may be discharged only for cause by the board after a public hearing. If the state public defender is serving at the pleasure of the board, he or she is subject to removal under s. 17.07.

977.05(3) (3) Salary. The salary of the state public defender shall not be decreased while he or she serves in that position.

977.05(4) (4) Duties. The state public defender shall:

977.05(4)(a) (a) Supervise the operation, activities, policies and procedures of the office of the state public defender.

977.05(4)(am) (am) Establish a case management system for use by the trial and appellate staff attorneys of the office of the state public defender. The system shall require the attorneys to record time spent on each case and to classify or describe the type of work done.

977.05(4)(b) (b) Be the chief legal officer of the office of the state public defender and make all final decisions regarding the disposition of any case handled by the office.

977.05(4)(c) (c) Prepare and submit to the board for its approval the biennial budget of the office of the state public defender.

977.05(4)(cm) (cm) Appoint one deputy, the number of division administrators specified in s. 230.08 (2) (e) 8m. and all staff attorneys in the unclassified service and appoint all other employees in the classified service.

977.05(4)(d) (d) Prepare and submit to the board for its approval such personnel and employment policies as the board shall require.

977.05(4)(e) (e) Prepare and submit to the board and such other persons as may be appropriate an annual report of the activities of the office in such form as the board shall direct.

977.05(4)(f) (f) Determine when and where it is necessary to establish offices for the state public defender and arrange for the rental of such space consistent with the policy and procedure of the department of administration.

977.05(4)(g) (g) In accordance with the standards under pars. (h) and (j), accept referrals from judges, courts or appropriate state agencies for the determination of indigency of persons who claim or appear to be indigent. If a referral is accepted and if the person is determined to be indigent, the state public defender shall appoint counsel in accordance with contracts and policies of the board, and inform the referring judge, court or agency of the name and address of the specific attorney who has been assigned to the case.

977.05(4)(gm) (gm) In accordance with the standards under pars. (h) and (i), accept referrals from judges and courts for the provision of legal services without a determination of indigency of children who are entitled to be represented by counsel under s. 48.23 or 938.23 or persons who are entitled to be represented by counsel under s. 51.60, 55.105, or 980.03 (2) (a), appoint counsel in accordance with contracts and policies of the board, and inform the referring judge or court of the name and address of the specific attorney who has been assigned to the case.

977.05(4)(h) (h) Accept requests for legal services from children who are entitled to be represented by counsel under s. 48.23 or 938.23 or persons who are entitled to be represented by counsel under s. 51.60, 55.105, or 980.03 (2) (a) and from indigent persons who are entitled to be represented by counsel under s. 967.06 or who are otherwise so entitled under the constitution or laws of the United States or this state and provide such persons with legal services when, in the discretion of the state public defender, such provision of legal services is appropriate.

977.05(4)(i) (i) Provide legal services in:

977.05(4)(i)1. 1. Cases involving persons charged with a crime against life under ss. 940.01 to 940.12.

977.05(4)(i)2. 2. Cases involving persons charged with a felony not specified under subd. 1.

977.05(4)(i)3. 3. Cases involving persons charged with a misdemeanor that is punishable by imprisonment but is not specified under subd. 1.

977.05(4)(i)4. 4. Cases involving persons subject to emergency detention or involuntary civil commitment under ch. 51.

977.05(4)(i)5. 5. Cases involving children who are entitled to counsel or are provided counsel at the discretion of the court under s. 48.23 or 938.23.

977.05(4)(i)7. 7. Cases involving paternity determinations, as specified under s. 767.83, in which the state is the petitioner under s. 767.80 (1) (g) or in which the action is commenced on behalf of the child by an attorney appointed under s. 767.407 (1) (c).

977.05(4)(i)8. 8. Cases involving individuals who are subject to petitions for protective placement or involuntary administration of psychotropic medication under ch. 55.

977.05(4)(i)9. 9. Cases involving persons who are subject to petitions under ch. 980.

977.05(4)(j) (j) Subject to sub. (6) (e) and (f), at the request of any person determined by the state public defender to be indigent or upon referral of any court, prosecute a writ of error, appeal, action or proceeding for habeas corpus or other postconviction or post-commitment remedy on behalf of the person before any court, if the state public defender determines the case should be pursued. The state public defender must pursue the case of any indigent person entitled to counsel under s. 971.17 (7) (b) 1. or 980.03 (2) (a).

977.05(4)(jm) (jm) At the request of an inmate determined by the state public defender to be indigent or upon referral of a court under s. 302.113 (9g) (j), represent the inmate in proceedings for modification of a bifurcated sentence under s. 302.113 (9g) before a program review committee and the sentencing court, if the state public defender determines the case should be pursued.

977.05(4)(k) (k) Represent members of the staff of the office of the state public defender who are named as defendants in lawsuits arising from their duties within the office. The attorney general may also, if appropriate, represent such staff members in such litigation. In cases where a member could be represented by either the public defender or the attorney general, the public defender shall determine who shall represent the member.

977.05(4)(L) (L) Commence actions in the name of the state public defender or any client or group of clients to seek declaratory judgment on any matter of concern to persons being represented by the office.

977.05(4)(m) (m) Perform all other duties necessary or incidental to the performance of any duty enumerated in this chapter.

977.05(4r) (4r) Services reimbursement.

977.05(4r)(a) (a) The state public defender may not provide reimbursement for investigative or expert services provided in a case assigned to a staff attorney or to private counsel under s. 977.08 unless the staff attorney or private counsel has received authorization from the state public defender to retain an investigator or expert.

977.05(4r)(b) (b) An authorization under par. (a) shall state a maximum amount that may be reimbursed, and the state public defender may not pay more than that amount except as allowed under the rules promulgated under s. 977.03 (2).

977.05(5) (5) Powers. The state public defender may:

977.05(5)(a) (a) Delegate the legal representation of any person to any member of the State Bar of Wisconsin certified under s. 977.08.

977.05(5)(b) (b) Designate persons as representatives of the state public defender for the purpose of making indigency determinations and appointing counsel, if applicable.

977.05(5)(c) (c) Negotiate contracts with the United States or any executive, legislative or judicial branch thereof to provide legal services to persons appearing before the federal district courts located in this state or who are incarcerated in federal custody in this state and to take whatever legal action such representation requires, including appeal or the commencement of any appropriate original actions.

977.05(5)(d) (d) Negotiate contracts with local public defender organizations as directed by the board.

977.05(5)(e) (e) Sponsor conferences and training for attorneys and may charge tuition for attendance at the conferences and training. All moneys received shall be deposited in s. 20.550 (1) (i).

977.05(6) (6) Restrictions.

977.05(6)(a) (a) The state public defender may not provide legal services or assign counsel for cases involving a person subject to contempt of court proceedings involving the alleged failure of the person to pay a forfeiture to a county or municipality.

977.05(6)(b) (b) The state public defender may not provide legal services or assign counsel for a person subject to contempt of court proceedings under s. 767.77 or 767.78 for failure to pay child or family support, if any of the following applies:

977.05(6)(b)1. 1. The action is not brought by the state, its delegate under s. 59.53 (6) (a) or an attorney appointed under s. 767.407 (1) (c).

977.05(6)(b)2. 2. The judge or circuit court commissioner before whom the proceedings shall be held certifies to the state public defender that the person will not be incarcerated if he or she is found in contempt of court.

977.05(6)(e) (e) The state public defender may not provide legal services or assign counsel for a person who files a motion to modify sentence under s. 973.19 (1) (a), or for a person who appeals, under s. 973.19 (4), the denial of a motion to modify sentence filed under s. 973.19 (1) (a), unless the person does one of the following:

977.05(6)(e)1. 1. Files the notice of intent to pursue postconviction relief within the time limit specified in s. 809.30 (2) (b) or, if the time limit specified in s. 809.30 (2) (b) is enlarged under s. 809.82 (2), within the time limit specified in the order enlarging time.

977.05(6)(e)2. 2. Files the motion to modify sentence under s. 973.19 (1) (a) within 20 days after the sentence or order is entered.

977.05(6)(f) (f) The state public defender may not provide legal services or assign counsel in cases involving an appeal or postconviction motion under s. 809.30 (2) if the notice of intent to pursue postconviction relief is not filed within the time limit specified in s. 809.30 (2) (b) or, if the time limit specified in s. 809.30 (2) (b) is enlarged under s. 809.82 (2), within the time limit specified in the order enlarging time.