AB 395

Under current law, the State Public Defender (SPD) provides counsel to

represent people in various legal proceedings, including criminal proceedings that

may result in imprisonment, and proceedings concerning emergency detention,

involuntary civil commitment, protective placement, paternity determination, and

juvenile delinquency. The SPD provides counsel to children and juveniles in

protective services and delinquency proceedings regardless of the child's or juvenile's

income or assets. The SPD provides counsel to adults in proceedings concerning

involuntary commitment for mental health or alcoholism treatment, protective

placement or services, or involuntary administration of psychotropic medication

regardless of the adult's income or assets. In other types of proceedings, the SPD may

provide counsel only to people who are indigent.

Current law provides that a person is indigent for purposes of SPD

representation if the person's income and assets, after deduction for reasonable and

necessary living expenses, are insufficient to cover the cost of effective legal

representation. Current law equates reasonable and necessary living expenses with

benefit amounts under the former Aid to Families with Dependent Children

program. However, in determining whether a person can afford counsel, courts are

not limited by the SPD indigency criteria. If a person is the subject of a legal

proceeding for which he or she has the right to appointed counsel if he or she cannot

afford counsel, and the person offers proof that he or she cannot afford counsel, the

court must independently review the person's circumstances. If the court finds that

the person cannot afford counsel and does not meet the criteria for SPD appointment,

the court must appoint counsel and the county in which the court sits must pay the

appointed counsel.

This bill changes the criteria for determining indigency for the purpose of SPD

representation. Under the bill, the SPD must adopt rules regarding indigency

determinations that require the SPD, when assessing a person's eligibility, to

consider the anticipated costs of effective representation for the type of case in which

the person is involved. The rules must also require that assets and income be treated

as available to the person to pay the costs of legal representation if they exceed the

asset and income ceilings for eligibility for the Wisconsin Works (W-2) program,

except that the asset exclusion for a person's home is limited to $30,000. (To be

eligible for the W-2 program, a person's household assets, after excluding up to

$10,000 for a vehicle and the value of the person's home, cannot exceed $2,500, and

his or her household income cannot exceed 115 percent of the federal poverty line.)

Additionally, under the rules, the SPD must 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. The bill provides the Public Defender Board

authority for 49.25 new full-time equivalent general purpose revenue positions.