Chapter 977

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.

977.05(6)(g) (g) The state public defender may not provide legal services or assign counsel in a proceeding under s. 973.09 (3) to modify the conditions of a probationer’s probation unless all of the following apply:

977.05(6)(g)1. 1. The probationer is contesting the modification of the conditions of probation.

977.05(6)(g)2. 2. The state or the court seeks to modify the conditions of probation to include a period of confinement under s. 973.09 (4).

977.05(6)(h) (h) The state public defender may not provide legal services or assign counsel in parole or extended supervision revocation proceedings unless all of the following apply:

977.05(6)(h)1. 1. The parolee or person on extended supervision is contesting the revocation of parole or extended supervision.

977.05(6)(h)2. 2. The department of corrections seeks to have the parolee or person on extended supervision imprisoned upon the revocation of parole or extended supervision.

977.05(6)(i) (i) The state public defender may not provide legal services or assign counsel in probation revocation proceedings unless all of the following apply:

977.05(6)(i)1. 1. The probationer is contesting the revocation of probation.

977.05(6)(i)2. 2. The department of corrections seeks to have the probationer imprisoned upon the revocation of probation or a stayed sentence of imprisonment will be imposed on the probationer upon the revocation of probation.

977.05 History History: 1977 c. 29; 1979 c. 34, 352, 356; 1981 c. 20, 27, 289; 1983 a. 377; 1987 a. 27; 1989 a. 12, 31, 56, 334; 1991 a. 263, 269; 1993 a. 318, 437, 451, 479, 481; 1995 a. 27, 77; 1997 a. 35, 283; 2001 a. 16, 61, 103, 109; 2005 a. 264; 2005 a. 443 s. 265; 2007 a. 20; 2009 a. 28; 2011 a. 38; 2017 a. 184, 359; 2021 a. 238 ss. 33, 34, 45.

977.05 Note Judicial Council Note, 1981: Reference in sub. (4) (j) to a “writ” of habeas corpus has been removed because the remedy is now available in an ordinary action. See s. 781.01, stats., and the note thereto. [Bill 613-A]

977.05 Cross-reference Cross-reference: See also ch. PD 5, Wis. adm. code.

977.05 Annotation When the court of appeals refers a case under sub. (4) (j), representation is discretionary, and the public defender must explain its decision to the court in sufficient detail within a reasonable time. State v. Alston, 92 Wis. 2d 893, 288 N.W.2d 866 (Ct. App. 1979).

977.05 Annotation The public defender’s refusal to act under sub. (4) (j) was explained in sufficient detail to demonstrate a proper exercise of discretion. State ex rel. Payton v. Kolb, 135 Wis. 2d 202, 400 N.W.2d 285 (Ct. App. 1986).

977.05 Annotation The public defender may not be ordered to represent non-indigent parties, except under unique and unusual circumstances. State ex rel. Chiarkas v. Skow, 160 Wis. 2d 123, 465 N.W.2d 625 (1990).

977.05 Annotation The public defender, not the county, was obligated to pay the costs of necessary expert witnesses hired by an appointed private attorney without prior approval, as required by rule. Payment of Witness Fees in State v. Huisman, 167 Wis. 2d 168, 482 N.W.2d 665 (Ct. App. 1992).

977.05 Annotation Sub. (4r) overrules the holding in Huisman that the public defender is liable for expert fees incurred by a private attorney without prior approval, but does not overrule Huisman’s holding that the public defender, and not the county, is liable for expert services for indigent defendants. Polk County v. State Public Defender, 179 Wis. 2d 312, 507 N.W.2d 576 (Ct. App. 1993). See also Polk County v. State Public Defender, 188 Wis. 2d 665, 524 N.W.2d 389 (1994).

977.05 Annotation Read together, ss. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. If counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996), 95-1096.

977.05 Annotation Although public defenders may be permitted to provide representation when the conditions of sub. (6) (h) are met, the statute does not require them to do so and does not mandate a per se right to assistance of counsel for filing a petition for certiorari review of an administrative appeal. However, petitioners were entitled to equitable relief when they timely asked counsel to file for certiorari, counsel promised to do so, and as a result of counsel’s failure to timely file they were denied certiorari review. Griffin v. Smith, 2004 WI 36, 270 Wis. 2d 235, 677 N.W.2d 259, 01-2345.

977.05 Annotation The public defender has discretion under sub. (4) (j) to refuse appointment for indigents in conditions of confinement cases and in cases seeking postconviction and postcommitment remedies when there is no absolute right to counsel. 71 Atty. Gen. 211.

977.05 Annotation The public defender may represent an indigent material witness, subject to s. 969.01 (3) bail provisions, so long as that representation does not create a conflict of interest with another client, but it may not represent an indigent in a civil forfeiture action unless that action is reasonably related to one for which the indigent is entitled to counsel. 72 Atty. Gen. 61.

977.05 Annotation When the public defender declined to pursue a frivolous appeal, it did not violate the prisoner’s constitutional rights. Polk County v. Dodson, 454 U.S. 312 (1981).

977.06 977.06 Indigency determinations; redeterminations; verification; collection.

977.06(1) (1) Duties. The state public defender shall determine whether persons are indigent and shall establish a system to do all of the following:

977.06(1)(a) (a) Verify the information necessary to determine indigency under rules promulgated under s. 977.02 (3). The information provided by a person seeking assigned counsel that is subject to verification shall include any social security numbers provided on an application under sub. (1m), income records, value of assets, eligibility for public assistance, and claims of expenses.

977.06(1)(b) (b) Redetermine indigency during the course of representation of persons receiving representation.

977.06(1)(c) (c) Record the amount of time spent on each case by the attorney appointed under s. 977.08.

977.06(1)(d) (d) Collect for the cost of representation from persons who are indigent or who have been otherwise determined to be able to reimburse the state public defender for the cost of providing counsel.

977.06(1m) (1m) Application for representation. The state public defender shall request each person seeking to have counsel assigned for him or her under s. 977.08, other than a child who is entitled to be represented by counsel under s. 48.23 or 938.23, to provide the state public defender with his or her social security number and the social security numbers of his or her spouse and dependent children, if any.

977.06(2) (2) Verifications.

977.06(2)(a) (a) A person seeking to have counsel assigned for him or her under s. 977.08, other than a child who is entitled to be represented by counsel under s. 48.23 or 938.23 or a person who is entitled to be represented by counsel under s. 51.60, 55.105, or 980.03 (2) (a), shall sign a statement declaring that he or she has not disposed of any assets for the purpose of qualifying for that assignment of counsel. If the representative or authority making the indigency determination finds that any asset was disposed of for less than its fair market value for the purpose of obtaining that assignment of counsel, the asset shall be counted under rules promulgated under s. 977.02 (3) at its fair market value at the time it was disposed of, minus the amount of compensation received for the asset.

977.06(2)(am) (am) A person seeking to have counsel assigned for him or her under s. 977.08, other than a child who is entitled to be represented by counsel under s. 48.23 or 938.23 or a person who is entitled to be represented by counsel under s. 51.60, 55.105, or 980.03 (2) (a), shall sign a statement declaring that the information that he or she has given to determine eligibility for assignment of counsel he or she believes to be true and that he or she is informed that he or she is subject to the penalty under par. (b).

977.06(2)(b) (b) A person who makes a false representation that he or she does not believe is true for purposes of qualifying for assignment of counsel is guilty of a Class I felony.

977.06(3) (3) Redeterminations.

977.06(3)(a) (a) Unless the court has made an adjustment under s. 973.06 (1) (e), upon determination at the conclusion of a case that a person’s financial circumstances are changed, the state public defender may adjust the amount of payment for counsel.

977.06(3)(b) (b) The state public defender may petition a court that ordered payment under s. 757.66, 973.06 (1) (e) or 977.076 (1) to modify an order or judgment to adjust the amount of payment or the scheduled amounts at any time.

977.06(3)(c) (c) Except as provided in ss. 48.275 (2) (b) and 938.275 (2) (b), an adjustment under this subsection shall be based on the person’s ability to pay and on the fee schedule established by the board under s. 977.075 (3).

977.06(4) (4) Oversight.

977.06(4)(a) (a) A circuit court may review any indigency determination upon its own motion or the motion of the defendant and shall review any indigency determination upon the motion of the district attorney or the state public defender. The court, district attorney or state public defender may summon the defendant. The defendant may be compelled to testify only as to his or her financial eligibility under this section. If the defendant refuses to testify, the court may find the defendant is not eligible to have counsel assigned for him or her under s. 977.08. If the defendant testifies at this hearing, his or her testimony as to his or her financial eligibility under this section may not be used directly or indirectly in any criminal action, except in a criminal action regarding a subsequent charge of perjury or false swearing.

977.06(4)(b) (b) The state public defender shall promptly release a copy of any statement, affidavit or other information provided by a person regarding financial eligibility under s. 977.07 only if the state public defender or a circuit court finds all of the following:

977.06(4)(b)1. 1. The person is not eligible to have counsel assigned under s. 977.08.

977.06(4)(b)2. 2. The person disposed of an asset for less than its fair market value for the purpose of obtaining assignment of counsel.

977.06(4)(bm) (bm) In response to a request for information under s. 49.22 (2m) made by the department of children and families or a county child support agency under s. 59.53 (5), the state public defender shall provide the name and address of an individual, the name and address of the individual’s employer and financial information related to the individual, if the name, address or financial information is included in any statement, affidavit or other information provided by the individual regarding financial eligibility under s. 977.07 and if, at the time the request for information is made, the individual is represented by the state public defender or by counsel assigned under s. 977.08.

977.06(4)(c) (c) Paragraphs (b) and (bm) do not limit the authority of the state public defender to release a copy of a statement, affidavit or other information regarding financial eligibility under s. 977.07 under other circumstances.

977.06 History History: 1995 a. 27 ss. 7269 to 7272, 7274m to 7281; 1995 a. 77, 417; 1997 a. 191, 283; 2001 a. 109; 2003 a. 33; 2007 a. 20; 2009 a. 164; 2017 a. 184, 359; 2021 a. 238 ss. 35, 36, 45.

977.06 Cross-reference Cross-reference: See also ch. PD 3, Wis. adm. code.

977.06 Annotation Not Poor Enough: Why Wisconsin’s System for Providing Indigent Defense is Failing. Velazquez-Aguilu. 2006 WLR 193.

977.07 977.07 Determination of indigency.

977.07(1) (1) 

977.07(1)(a) (a) Determination of indigency for persons entitled to counsel shall be made as soon as possible and shall be in accordance with the rules promulgated by the board under s. 977.02 (3) and the system established under s. 977.06. No determination of indigency is required for a child who is entitled to be represented by counsel under s. 48.23 or 938.23 or a person who is entitled to be represented by counsel under s. 51.60, 55.105, or 980.03 (2) (a).

977.07(1)(b) (b) For referrals not made under ss. 809.30, 974.06, and 974.07, a representative of the state public defender is responsible for making indigency determinations unless the county became responsible under s. 977.07 (1) (b) 2. or 3., 1983 stats., for these determinations. Subject to the provisions of par. (bn), those counties may continue to be responsible for making indigency determinations. Any such county may change the agencies or persons who are designated to make indigency determinations only upon the approval of the state public defender.

977.07(1)(bn) (bn) Notwithstanding par. (b), if the state public defender board determines that standards under s. 977.02 (3) are not being met or that there is a pattern of improper denial of indigency findings in a county, the state public defender board shall transfer indigency determination authority in the county to the state public defender. In addition, if less than 100 percent of the cases at the trial level are assigned to private bar attorneys in a county, the public defender board may transfer indigency determination authority in the county to the state public defender.

977.07(1)(c) (c) For all referrals made under ss. 809.107, 809.30, 974.06 (3) (b) and 974.07 (11), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23 or a person who is entitled to be represented by counsel under s. 51.60, 55.105, or 980.03 (2) (a), a representative of the state public defender shall determine indigency. For referrals made under ss. 809.107, 809.30 and 974.06 (3) (b), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23 or a person who is entitled to be represented by counsel under s. 51.60, 55.105, or 980.03 (2) (a), the representative of the state public defender may, unless a request for redetermination has been filed under s. 809.30 (2) (d) or the person’s request for representation states that his or her financial circumstances have materially improved, rely upon a determination of indigency made for purposes of trial representation under this section.

977.07(1)(d) (d) If the representative of the state public defender or the county designee determines that a person is indigent or if no determination of indigency is required as provided in par. (a), the case shall be referred to or within the office of the state public defender for assignment of counsel under s. 977.08.

977.07(2m) (2m) If the person is found to be indigent, the person shall be promptly informed of the state’s right to payment or recoupment under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076 (1), and the possibility that the payment of attorney fees may be made a condition of probation, should the person be placed on probation. Furthermore, if found to be indigent, the person shall be promptly informed of the extent to which he or she will be expected to pay for counsel, and whether the payment shall be in the form of a lump sum payment or periodic payments. The person shall be informed that the payment amount may be adjusted if his or her financial circumstances change by the time of sentencing. The payment and payment schedule shall be set forth in writing. This subsection does not apply to persons who have paid under s. 977.075 (3m).

977.07 History History: 1977 c. 29; 1979 c. 175 s. 53; 1979 c. 356; 1981 c. 20 s. 1833, 2202 (41) (a); Sup. Ct. Order, 123 Wis. 2d xi (1985); 1985 a. 29; 1987 a. 27, 61, 399; 1991 a. 39; 1993 a. 16, 451, 491; 1995 a. 27, 77; 2001 a. 16; 2005 a. 293; 2007 a. 20, 97; 2009 a. 164; 2017 a. 184, 359; 2021 a. 238 ss. 37, 38, 45.

977.07 Cross-reference Cross-reference: See also ch. PD 3, Wis. adm. code.

977.07 Note Judicial Council Note, 1984: Sub. (1) (c) is amended by dispensing with redeterminations of indigency unless the notice under s. 809.30 (2) (b) indicates that the defendant’s financial circumstances have materially improved or the district attorney timely requests a redetermination under s. 809.30 (2) (d). The intent is to limit the cost and delay associated with indigency redeterminations to cases in which there is reason to believe that the defendant no longer qualifies for public defender assistance. [Re order effective July 1, 1985]

977.07 Annotation The defendant must prove an inability to afford counsel by a preponderance of the evidence. State v. Buelow, 122 Wis. 2d 465, 363 N.W.2d 255 (Ct. App. 1984).

977.07 Annotation A determination of indigency by the public defender is not the end of a court inquiry of the right to counsel. State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991).

977.07 Annotation In making its separate determination of whether a defendant is indigent for purposes of court-appointed counsel, the trial court should consider federal poverty guidelines. If a defendant has no assets and an income well below the poverty level, the trial court should set forth why it determined that the defendant could afford counsel. State v. Nieves-Gonzales, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913, 00-2138.

977.07 Annotation Under Dean, a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler, 2003 WI App 169, 266 Wis. 2d 438, 669 N.W.2d 182, 02-1313.

977.07 Annotation The procedures set forth in Dean suggest that the inherent power of the circuit court shall be exercised to cover situations when a defendant cooperated with the SPD’s financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case, public justice, and sound policy was in fact indigent. The inherent power of the court should not be invoked when a defendant fails to seek SPD appointment, fails to cooperate with the SPD for the indigency assessment, or fails to submit the required information to make a proper assessment. A defendant in this position carries the burden of submitting proof to the circuit court to enable it to make such an assessment. State v. Kennedy, 2008 WI App 186, 315 Wis. 2d 507, 762 N.W.2d 412, 08-0435.