Chapter 977

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.

977.07 Annotation The state public defender may be denied access to jail inmates who have not requested counsel, and jail authorities need only provide by telephone that information necessary for the public defender to assess the need to make an indigency determination in person under s. 977.07 (1) for an inmate who has requested counsel and claims indigency. 78 Atty. Gen. 133.

977.075 977.075 Payment for legal representation.

977.075(1g) (1g) In this section, “client responsible for payment” means a client of the state public defender other than a client entitled to legal representation without a determination of indigency.

977.075(3) (3) The board shall establish by rule a fee schedule that sets the amount that a client responsible for payment shall pay for the cost of the legal representation if the client does not pay the applicable discount fee under sub. (3m). The schedule shall establish a fee for a given type of case, and the fee for a given type of case shall be based on the average cost, as determined by the board, for representation for that type of case.

977.075(3m) (3m) The board shall establish by rule a fee schedule that sets the discount amount that a client responsible for payment may pay during a time period established by rule instead of paying the applicable fee under sub. (3). The fee schedule shall establish a discount fee for each type of case included in the schedule under sub. (3). If a client responsible for payment pays the applicable discount fee within the time period established under this section, the client may not be held liable for any additional payment for counsel.

977.075(4) (4) The board shall establish by rule a fee schedule that sets the maximum amount that a parent subject to s. 48.275 (2) (b) or 938.275 (2) (b) shall pay as reimbursement for legal services and sets the maximum amount that a person subject to s. 51.605, 55.107, or 980.0305 shall pay as reimbursement for legal services. The maximum amounts under this subsection shall be based on the average cost, as determined by the board, for each applicable type of case.

977.075 History History: 1995 a. 27, 77; 2005 a. 129; 2007 a. 20; 2017 a. 184.

977.075 Cross-reference Cross-reference: See also ch. PD 6, Wis. adm. code.

977.076 977.076 Collections.

977.076(1) (1) If the state public defender notifies the court in which the underlying action was filed that a person who is required to reimburse the state public defender for legal representation has failed to make the required payment or to timely make periodic payments, the court may issue a judgment on behalf of the state for the unpaid balance and direct the clerk of circuit court to file and docket a transcript of the judgment, without fee. If the court issues a judgment for the unpaid balance, the court shall send a notice to the person at his or her last-known address that a civil judgment has been issued for the unpaid balance. The judgment has the same force and effect as judgments issued under s. 806.10. Except as provided in ss. 48.275 (2) (b) and 938.275 (2) (b), the judgment shall be based on the person’s ability to pay and on the fee schedule established by the board under s. 977.075 (3).

977.076(2) (2) The department of administration may collect unpaid reimbursement payments to the state public defender ordered by a court under sub. (1) or s. 48.275 (2), 757.66, 938.275 (2) (a) or 973.06 (1) (e). The department may contract with a private collection agency to collect these payments. Section 16.705 does not apply to a contract under this subsection.

977.076 History History: 1995 a. 27, 77, 352, 417; 1997 a. 35.

977.077 977.077 Deposit of payments received. Payments for services provided by the state public defender or other counsel under this chapter that are received pursuant to s. 977.07, 977.075 or 977.076 shall be deposited in the state treasury and credited to the appropriation under s. 20.550 (1) (L).

977.077 History History: 1995 a. 27.

977.08 977.08 Appointment of counsel.

977.08(1) (1) If the representative or the authority for indigency determinations specified under s. 977.07 (1) refers a case to or within the office of the state public defender or if a case is referred under s. 48.23 (4), 51.60, 55.105, 938.23 (4), or 980.03 (2) (a), the state public defender shall assign counsel according to subs. (3) and (4). If a defendant makes a request for change of attorney assignment, the change of attorney must be approved by the circuit court.

977.08(2) (2) All attorneys in a county shall be notified in writing by the state public defender that a set of lists is being prepared of attorneys willing to represent persons referred under s. 48.23 (4), 51.60, 55.105, 938.23 (4), or 980.03 (2) (a) and indigent clients in the following:

977.08(2)(a) (a) Cases involving persons charged with a crime against life under ss. 940.01 to 940.12.

977.08(2)(b) (b) Cases involving persons charged with a felony not specified under par. (a).

977.08(2)(c) (c) Cases involving persons charged with a misdemeanor that is punishable by imprisonment but is not specified under par. (a).

977.08(2)(e) (e) 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.

977.08(2)(g) (g) Cases involving persons entitled to counsel under ch. 48.

977.08(2)(h) (h) Cases involving paternity determinations as provided in s. 767.83.

977.08(3) (3) 

977.08(3)(a) (a) Attorneys notified under sub. (2) shall have a reasonable time to submit their names for inclusion on any or all of the lists. Attorneys shall, in submitting their names, set forth their legal education and experience which qualifies them to provide representation in the types of cases they have expressed an interest in handling. The state public defender shall compile a list of the names and qualifications submitted.

977.08(3)(b) (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.

977.08(3)(c) (c) A person appointed from the set of lists prepared under par. (b) shall be appointed in order from the top of each list; if any attorney thus appointed states in writing that he or she cannot accept the appointment, he or she shall be placed on the bottom of the list, and the attorney thus elevated to the top of the list shall be appointed.

977.08(3)(d) (d) Whenever the director of a local public defender organization is appointed as counsel, he or she may assign the case to any qualified attorney or attorneys employed by the local public defender organization.

977.08(3)(e) (e) An attorney may be appointed without regard to pars. (c) and (d) if the attorney is currently or has previously represented the defendant. Any appointment out of order shall serve in lieu of an appointment in the regular order.

977.08(3)(f) (f) The state public defender shall enter into as many annual contracts as possible, subject to par. (fg), with private local attorneys or law firms for the provision of legal representation. Under any such contract, the state public defender shall assign cases without regard to pars. (c) and (d), shall set a fixed-fee total amount for all cases handled and shall pay that amount, except that the state public defender may not pay an attorney more for a case than he or she would receive according to the rates under sub. (4m). The contract shall include a procedure authorizing the state public defender to make additional payments for a case or to reassign a case if the circumstances surrounding the case justify the additional payment or reassignment.

977.08(3)(fg) (fg) The total number of cases that may be subject to the annual contracts under par. (f) for a given year may not exceed 33 percent of the total number of cases at the trial level that are assigned by the state public defender to private counsel under this section for that year.

977.08(3)(g) (g) The state public defender may appoint an attorney without regard to pars. (c) and (d) based on the state public defender’s evaluation of that attorney’s performance if the board promulgates rules under s. 977.03 (3).

977.08(4) (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).

977.08(4m) (4m) 

977.08(4m)(a) (a) Unless otherwise provided by a rule promulgated under s. 977.02 (7r), for cases assigned before December 1, 1992, private local attorneys shall be paid $45 per hour for time spent in court; $35 per hour for time spent out of court, excluding travel, related to a case; and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney’s principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney’s principal office.

977.08(4m)(b) (b) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after December 1, 1992, and before July 29, 1995, private local attorneys shall be paid $50 per hour for time spent in court; $40 per hour for time spent out of court, excluding travel, related to a case; and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney’s principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney’s principal office.

977.08(4m)(c) (c) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after July 29, 1995, and before January 1, 2020, private local attorneys shall be paid $40 per hour for time spent related to a case, excluding travel, and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney’s principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney’s principal office.

977.08(4m)(d) (d) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after January 1, 2020, and before July 1, 2023, private local attorneys shall be paid $70 per hour for time spent related to a case, excluding travel, and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney’s principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney’s principal office.

977.08(4m)(e) (e) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after July 1, 2023, private local attorneys shall be paid $100 per hour for time spent related to a case, excluding travel. For cases assigned on or after July 1, 2023, private local attorneys shall be paid $50 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney’s principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney’s principal office.

977.08(5) (5) 

977.08(5)(a) (a) The purpose of this subsection is to provide standards for use in budgetary determinations.

977.08(5)(bn) (bn) Except as provided in par. (br), any of the following constitutes an annual caseload standard for an assistant state public defender in the subunit responsible for trials:

977.08(5)(bn)1. 1. Felony cases not specified in subd. 1m.: 184.5.

977.08(5)(bn)1m. 1m. First-degree intentional homicide cases: 15.

977.08(5)(bn)1r. 1r. Cases representing persons under s. 980.05: 15.

977.08(5)(bn)2. 2. Misdemeanor cases: 492.

977.08(5)(bn)3. 3. Cases not covered under subd. 1., 1m., 1r. or 2.: 246.

977.08(5)(br) (br) Beginning on July 1, 2000, the state public defender may exempt up to 10 full-time assistant state public defenders in the subunit responsible for trials from the annual caseload standards under par. (bn) based on their need to perform other assigned duties.

977.08(5)(c) (c) At the trial level, 67 percent of the felony and juvenile cases shall be handled within the office.

977.08 History History: 1977 c. 29, 354; 1979 c. 352, 356; 1981 c. 20; 1983 a. 377; 1985 a. 29 ss. 2473 to 2476a, 3202 (42); 1985 a. 120; 1987 a. 27, 399; 1989 a. 12; 1991 a. 39, 263; 1993 a. 16, 318, 423, 451, 491; 1995 a. 27, 77; 1997 a. 27; 1999 a. 9; 2005 a. 443 s. 265; 2007 a. 20; 2017 a. 184; 2019 a. 9; 2023 a. 19.

977.08 Cross-reference Cross-reference: See also chs. PD 1, 2, and 4, Wis. adm. code.

977.08 Annotation The courts’ power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court-ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under SCR 81.01 or 81.02, or a higher rate when necessary, to secure effective counsel. Friedrich v. Dane County Circuit Ct. 192 Wis. 2d 1, 531 N.W.2d 32 (1995).

977.085 977.085 Quarterly report procedure.

977.085(1) (1) The board shall provide quarterly reports to the department of administration and the joint committee on finance regarding all of the following:

977.085(1)(a) (a) Private bar and staff case loads at the trial and appellate levels and expenditures of moneys under s. 20.550 (1) (a) for the current fiscal year.

977.085(1)(b) (b) Projections for the private bar and staff case loads at the trial and appellate levels and for expenditures of moneys under s. 20.550 (1) (a) for the remainder of the current fiscal year and for the next fiscal year.

977.085(1)(c) (c) In all of the quarterly reports for fiscal years 1995-96 and 1996-97, information regarding the status of contracting under s. 977.08 (3) (f) and in the first 2 quarterly reports for fiscal year 1997-98, including information showing the cost savings achieved through the contracting.

977.085(1m) (1m) The projections under sub. (1) (b) shall include the number of cases projected to be assigned to the private bar and the number of cases for which reimbursement will be made under s. 20.550 (1) (a).

977.085(2) (2) If the projections under sub. (1) (b) indicate that moneys are being expended under s. 20.550 (1) (a) at a rate which will deplete the appropriation prior to the end of the current fiscal year, the board shall include in the report a plan to address the problem. The plan shall include proposals for one or more of the following:

977.085(2)(a) (a) Agency actions, including whether the reduced payment rates established by rules promulgated under s. 977.02 (7r) (a) will be put into effect.

977.085(2)(b) (b) Requests for appropriation changes under s. 13.101.

977.085(2)(c) (c) Legislation.

977.085(3) (3) The board shall provide quarterly reports to the joint committee on finance on the status of reimbursement for or recoupment of payments under ss. 48.275, 51.605, 55.107, 757.66, 938.275, 977.06, 977.075, 977.076, and 980.0305, including the amount of revenue generated by reimbursement and recoupment. The quarterly reports shall include any alternative means suggested by the board to improve reimbursement and recoupment procedures and to increase the amount of revenue generated. The department of justice, district attorneys, circuit courts and applicable county agencies shall cooperate by providing any necessary information to the state public defender.

977.085 History History: 1987 a. 27; 1989 a. 31; 1993 a. 16; 1995 a. 27 ss. 7289, 7290p; 1995 a. 77; 2007 a. 20; 2009 a. 164; 2017 a. 59, 184.

977.09 977.09 Confidentiality of files. The files maintained by the office of the state public defender which relate to the handling of any case shall be considered confidential and shall not be open to inspection by any person unless authorized by law, court order, the board or the state public defender.

977.09 History History: 1977 c. 29.