Various statute sections in ch.
244
, Stats., relating to uniform power of attorney.
Statutory authority
Explanation of agency authority
By statute, the ETF Secretary is expressly authorized, with appropriate board approval, to promulgate rules required for the efficient administration of any benefit plan established in ch.
40
of the Wisconsin statutes. Each state agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.
Related statute(s) or rule(s)
There are no other rules that clarify how ETF will administer Chapter
40
, Stats., benefits with respect to power of attorney.
2009 Wisconsin Act 319
contains changes to the statutes relating to power of attorney for property and finances.
Plain language analysis
2009 Wisconsin Act 319
updates provisions related to the uniform power of attorney for property and finances. Rule changes are necessary to bring ETF's treatment of power of attorney documents into harmony with the new statutes, including:
A rule clarifying how the department will process conflicting transaction requests from co-agents when the principal has granted authority to execute such transactions to multiple agents.
A rule specifying how the department will implement the 10-day deadline for rejecting power of attorney documents and requests provided in
2009 Wisconsin Act 319
.
A rule specifying the department's treatment of an agent's request to execute a transaction when the power of attorney document is incomplete or certification is required.
A rule clarifying that a power of attorney does not automatically terminate when a domestic partnership established under Chapter
40
, Stats., is terminated.
Summary of, and comparison with, existing or proposed federal regulations
There are no existing federal regulations that specifically address how states process and administer power of attorney.
Comparison with rules in adjacent states
All states except Louisiana have adopted the Uniform Power of Attorney Act, although each state may incorporate additional provisions into their own power of attorney laws. If a power of attorney was executed in a state other than Wisconsin, the department would abide by that state's laws with respect to the authority and powers granted in the power of attorney document.
Summary of factual data and analytical methodologies
2009 Wisconsin Act 319
amended Wisconsin's statutes governing uniform power of attorney for finances and property. The proposed rule change is intended to bring ETF's power of attorney rule into harmony with the amended statutes.
Analysis and supporting documents used in determination of effect on small businesses
The rule does not have an effect on small businesses because private employers and their employees do not participate in, and are not covered by, the Wisconsin Retirement System.
Effect On Small Business
There is no effect on small business.
Fiscal Estimate
The rule will have a minimal fiscal effect, in that it will require minor changes to ETF's procedures with respect to reviewing power of attorney documents. Any costs are anticipated to be insignificant, and the Department can absorb these costs within the existing base budget. The rule will not create any additional fiscal impact on any county, city, village, town, school district, technical college district, or sewerage districts. The rule will not create any additional fiscal impact on the state for the current biennium. The rule will not have any fiscal impact on the private sector.
Agency Contact Person
Linda Owen, Policy Analyst, Department of Employee Trust Funds, 801 W Badger Rd, Madison, WI 53713-7931, P.O. Box 7931 (use ZIP Code 53707 for PO Box); Phone: 608-267-2847; e-mail:
linda.owen@etf.state.wi.us
Notice of Hearing
Public Defender Board
NOTICE IS HEREBY GIVEN that the State of Wisconsin Public Defender Board (SPD) announces that it will hold a public hearing on the revision of Chapter
PD 3
, Indigency Criteria, relating to the determination of eligibility for the assignment of publicly appointed counsel.
Hearing Information
The State Public Defender will hold a public hearing at the time and location below:
Date and Time:
|
Location:
|
January 5, 2011
Wednesday
9:30am-11:30
|
SPD Administrative Office
Banoul Conference Room
315 N. Henry St., 2nd Floor
Madison, WI 53703
|
Handicap accessibility is in the rear of the building. If you require communication accommodation at the hearing, please call Kathy Pakes, (608) 261-0087, at least 10 days prior to the hearing date.
Appearances at the Hearing and Submittal of Written Comments
Interested persons are invited to attend the hearing and comment on the rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by
December 13
at 9:30. 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. Copies of the rule and fiscal note will also be available, at no cost, at the hearing.
Analysis Prepared by the Public Defender Board
Statute(s) interpreted
Statutory authority
Explanation of agency authority
The State Public Defender's Office (SPD) provides constitutionally-mandated legal representation to persons who meet financial eligibility standards. Under the current eligibility standards, which have not been updated since 1987, a person charged with a felony offense, grossing $290 per week (working 40 hours a week at minimum wage of $7.25 per hour), with two children, assets of $300, and a car worth $2,000, does not qualify for the State Public Defender.
Those who do not qualify for State Public Defender Representation and cannot afford an attorney are provided an attorney, at county expense. Since 1987, as the cost of living has increased, the number of persons who do not meet the SPD eligibility standards, and who are unable to afford counsel, has increased. Wisconsin counties reported spending nearly $7.6 million in 2008 to appoint counsel for these indigent individuals.
Recognizing the burden to the counties and need to revise the financial eligibility criteria,
2009 Wisconsin Act 164
, published March 29, 2010, mandated that financial eligibility standards for public defender representation be consistent with income guidelines of Wisconsin Works (W2). To carry out these changes, Act 164 directs the Wisconsin State Public Defender Board to promulgate rules regarding the revised determination of indigency. In promulgating these rules Act 164 directs the SPD to consider the costs of effective representation for the type of case in which a person seeks representation, and to consider a person's assets in the manner described in s.
49.145
Stats., (Wisconsin Works).
Related statute(s) or rule(s)
None.
Plain language analysis
Tying eligibility for representation to W2 (sec. 49.145 (3) (a) Stats.) increases the number of clients served by the State Public Defender Agency.
An increase in the number of persons who qualify for representation by the State Public Defender has a corresponding decrease in the costs to counties. This is because counties are required to provide counsel for those individuals who do not qualify for state public defender representation and cannot afford to retain an attorney. Act 164 shifts, to a large extent, the responsibility of providing representation for the "working poor" from the counties to the State.
Summary of, and comparison with, existing or proposed federal regulation
There are no existing or proposed federal regulations that address the activities of the proposed rules.
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
Act 164 directs the SPD to consider the costs of effective representation for the type of case in which a person seeks representation, and to consider a person's assets in the manner described in s.
49.145
, Stats., (Wisconsin Works).
In determining the estimated cost of counsel the SPD looked to the State Bar of Wisconsin 2008 "Economics of Law Practice in Wisconsin".
Methodology used by state bar:
The Wisconsin State Bar, along with a consulting agency, and with input from members representing various practice areas developed a questionnaire designed to determine the cost of counsel in various types of cases. The questionnaire was mailed to a geographically stratified random sample of 6,160 active members. Questionnaires and reply envelopes were not coded in any way to ensure confidentiality. A follow-up reminder postcard was mailed to all members of the original sample with an email reminder. The response deadline was June 6, 2008, and questionnaires received as of June 12, 2008 were included in the analysis. A total of 1,024 total usable questionnaires were returned by members, for a 17 percent overall response rate: including 618 from private practitioners, 257 from government or public service attorneys, and 102 from corporate/in-house counsels. The response rate is what would be expected from a busy, professional audience when no monetary incentive is included and no follow-up mailing of the questionnaire is done. All usable questionnaires were audited, data entered and analyzed by Gene Kroupa & Associates, a Madison based marketing research firm that has assisted the State Bar with other projects. The questionnaire was designed so that all attorneys were to answer Section 1, private practitioners were to answer Section II, government attorneys were to answer Section III, and corporate/in-house counsels were to answer Section IV. The results for each section are based only on those who were instructed to answer that particular section. The analysis focused on differences related to practice setting, location, size, and respondent demographics.
Analysis and supporting documents used in determination of effect on small business or in preparation of economic impact report
N/A
Effect on Small Business
None
Fiscal Estimate
State fiscal effect
Increase Costs - Not possible to absorb within agency's budget.
Local fiscal effect
Decrease Costs – Mandatory.
Types of local government units affected
Counties.
Fund sources affected affected
GPR.
Assumptions used in arriving at fiscal estimate
The State Public Defender (SPD) is statutorily authorized and required to appoint attorneys to represent indigent defendants in criminal proceedings. The SPD plays a major role in ensuring that the Wisconsin justice system complies with the right to counsel provided by both the state and federal constitutions. Any legislation that creates a new criminal offense or expands the definition of an existing criminal offense has the potential to increase SPD costs.
Although this bill neither creates new criminal offenses, nor changes penalties, it would increase the number of SPD cases by updating the SPD financial eligibility criteria. These criteria have remained the same, without adjustments for inflation, since 1987, with the consequence that many applicants of low income (below the federal poverty level) do not presently qualify for SPD representation.
Because the proposed effective date is June 19, 2011, the SPD would not incur increased costs during the 2009-11 biennium. As the proposed changes are implemented, the SPD estimates additional costs in FY 2012 of $3,800,000. The estimated annual cost attributable to the changes proposed in this bill would be $4,100,000, once fully implemented, beginning in FY 2013. These estimates are based upon average SPD costs and a study of applications for SPD services, which showed that the SPD would provide representation in an additional 12,800 cases annually if these changes take effect. In general, the number of criminal charges filed and statewide economic conditions are significant variables affecting the number of SPD cases.
Much, if not all, of the increased costs will be offset by reductions in county expenditures for the appointment of counsel. Reports from 69 of Wisconsin's 72 counties showed county expenditures in 2008 of approximately $6,000,000 for this type of appointment. Many applicants who exceed the SPD's statutory financial guidelines are constitutionally eligible for appointment of counsel because it would be a substantial hardship for them to retain an attorney. The court is required to appoint counsel at county expense for these applicants. This bill would greatly decrease the number of applicants for court-appointed attorneys in criminal cases because the revised SPD financial criteria would result in SPD appointments in most of the cases in which courts currently appoint attorneys at county expense.
Counties would save the direct costs of these appointments, and county officials would not have to spend as much time administering court appointments, including auditing and paying invoices. The counties may also experience savings because in cases in which the SPD is able to appoint an attorney, the case may be resolved more quickly than if there is a delay to determine whether the court should appoint an attorney. In many cases, the prompt appointment of an attorney may result in fewer court hearings, less jail time, or both.
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.
Notice of Hearing
Public Defender Board
NOTICE IS HEREBY GIVEN that the State of Wisconsin Public Defender Board (SPD) announces that it will hold a public hearing on the revision of Chapter
PD 6
, Payment for Representation, relating to determining, collecting and processing the payments received from persons as payment for legal representation.
Hearing Information
The State Public Defender will hold a public hearing at the time and location below:
Date and Time:
|
Location:
|
January 5, 2011
Wednesday
9:30am-11:30
|
SPD Administrative Office
Banoul Conference Room
315 N. Henry St., 2nd Floor
Madison, WI 53703
|
Appearances at the Hearing and Submittal of Written Comments
Interested persons are invited to attend the hearing and comment on the rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by
December 13
at 9:30 a.m.. 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. Copies of the rule and fiscal note will also be available, at no cost, at the hearing.
Analysis Prepared by the Public Defender Board
Statute(s) interpreted
Statutory authority
Explanation of agency authority
The State Public Defender's Office (SPD) provides constitutionally-mandated legal representation to persons who meet financial eligibility standards. Under the current eligibility standards, which have not been updated since 1987, a person charged with a felony offense, grossing $290 per week (working 40 hours a week at minimum wage of $7.25 per hour), with two children, assets of $300, and a car worth $2,000, does not qualify for the State Public Defender.
Those who cannot afford an attorney and do not qualify for State Public Defender representation are provided an attorney at county expense. Since 1987, as the cost of living has increased, the number of persons who do not meet the SPD eligibility standards, and who are unable to afford counsel, has increased. Wisconsin counties reported spending nearly $7.6 million in 2008 to appoint counsel for these indigent individuals.
Recognizing the burden to the counties and need to revise the financial eligibility criteria,
2009 Wisconsin Act 164
, published March 29, 2010, mandated that financial eligibility standards for public defender representation be consistent with income guidelines of Wisconsin Works (W2). To carry out these changes, Act 164 directs the Wisconsin State Public Defender Board to promulgate rules regarding the revised determination of indigency. In promulgating these rules Act 164 directs the SPD to consider the costs of effective representation for the type of case in which a person seeks representation, and to consider a person's assets in the manner described in s.
49.145
, Stats., (Wisconsin Works) when evaluating a persons ability to pay the costs of legal representation.
In order to carry out the mandates of Act 164, including the need for consistency within an agency's administrative rules, Chapter
PD 6
(Payment for Legal Representation) is revised at the same time as Chapter
PD 3
(Determination of Indigency).
Related statute(s) or rule(s)
None.
Plain language analysis
Tying eligibility for representation to W2 (sec. 49.145(3)(a) Stats.) increases the number of clients served by the State Public Defender Agency. The State Public Defender, pursuant to statute, collects payments from clients for legal representation. Revisions to Chapter
PD 6
correspond to revisions in Chapter
PD 3
.
Summary of, and comparison with, existing or proposed federal regulation
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparison with rules in adjacent states
Iowa:
Iowa has a statewide public defender system, but no statewide collection system for recovering fees. Instead, the public defender agency notifies individual Clerks of Court of what payment is due, and the courts add this amount to the court costs.
Illinois
:
Does not have a statewide public defender system. The counties bear the cost of representation. Indigency determinations and collections 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 and collections are made on a county by county basis.
Minnesota:
Minnesota has a statewide public defender system. Upon disposition of a case, an individual who has received public defender services shall pay the court a $75 co-payment for representation provided by a public defender, unless the co-payment is, or has been, waived by the court. This co-payment is a civil obligation and may not be made a condition of a criminal sentence.
See
Minn. Stat. 611.17
Summary of factual data and analytical methodologies
N/A
Analysis and supporting documents used in determination of 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.
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to sections
85.16 (1)
,
341.09
and
227.11
, Stats., interpreting sections
341.04
and
341.09
, Stats., the Department of Transportation will hold a public hearing to consider the amendment of Chapter
Trans 132
, Wisconsin Administrative Code, relating to temporary operation plates or permits.
Hearing Information
The Department of Transportation will hold a public hearing at the time and location below:
Date and Time:
|
Location:
|
January 6, 2011
Thursday
10:00am
|
Hill Farms State Transportation Building
Room 254
4802 Sheboygan Ave.
Madison, WI 53705
|
This hearing is held in an accessible facility. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call Rhonda Alley at (608) 264-7396 with specific information on your request at least 10 days before the date of the scheduled hearing. Accommodations such as interpreters, English translators, or materials in alternative format will, to the fullest extent possible, be made available upon a request from a person with a disability to accommodate your needs.
Copies of Proposed Rule
A copy of the rule may be obtained upon request from Rhonda Alley, Chief, Title and Registration Processing Section, Division of Motor Vehicles, Bureau of Vehicle Services, Room 253, P.O. Box 7911 Madison, WI 53707-7911. You may also contact Ms. Alley by phone at (608) 264-7396 or via e-mail:
rhonda.alley@wisconsin.gov
to obtain copies of the proposed rule. Copies will also be available at the hearing.
Submittal of Written Comments
The public record on this proposed rule making will be held open until close of business the day of the hearing to permit the submission of comments in lieu of public hearing testimony or comments supplementing testimony offered at the hearing. Any such comments should be submitted to Rhonda Alley, Department of Transportation, Division of Motor Vehicles, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Alley by phone at (608) 264-7396 or via e-mail:
rhonda.alley@wisconsin.gov
.
Analysis Prepared by the Department of Transportation
Statute(s) interpreted
Statutory authority
Explanation of agency authority
The Department of Transportation is authorized and required to issue temporary operation plates for motor vehicles and to specify the size, color, design, form and specification of the temporary operation plates by rule, pursuant to s.
341.09
, Stats. This rule is proposed to meet those requirements.
Related statute(s) or rule(s)
Plain language analysis
Chapter
Trans 132
specifies the size, color, design, form and specifications, and display of temporary operation plates that DOT is authorized to issue under s.
341.09
, Stats.
The Division of Motor Vehicles (DMV) is developing an on-line program which will allow the public to apply for title and registration for certain vehicles electronically. To comply with s.
341.04 (1)
, Stats., DMV will issue a temporary operation plate that the on-line program will print on paper at the applicant's printer and which shall be displayed in the rear window of the vehicle. The temporary plate number, vehicle description, expiration date, and owner information will be stored in the DMV database and will be available to law enforcement, real time and on-line.
This rule making amends ch.
Trans 132
to specify size, color, design, form and specifications, and display of temporary operation plates that DOT will issue electronically as part of the on-line web application for electronic vehicle title and registration provided by the Department.
Summary of, and comparison with, existing or proposed federal regulation
No federal regulations apply to the activities to be regulated by the proposed rule.
Comparison with rules in adjacent states
Michigan:
Michigan does not issue temporary operation plates printed on paper at an applicant's printer and displayed in the rear window of the vehicle.
Minnesota:
Minnesota issues temporary operation permits printed on paper and affixed in the rear window. The temporary operation permit is not printed at an applicant's printer; instead, it is purchased from the DMV.
Illinois:
Illinois does not issue temporary operation plates printed on paper at an applicant's printer and displayed in the rear window of the vehicle.
Iowa:
Iowa issues a temporary "in-transit" permit that is displayed in the rear window of the vehicle. The permit is not printed at an applicant's printer; instead it is purchased in advance from the DMV and is available to dealers rather than individuals.
Summary of factual data and analytical methodologies
With an on-line title and registration process, DMV must be able to issue a temporary operation plate immediately to a person after the person completes the on-line process. This is to comply with s.
341.04 (1)
, Stats. Otherwise, the registrant must refrain from operating the vehicle until the metal plate arrives.
DMV has considered alternative ways to immediately provide a temporary operation plate to on-line title and registration customers. DMV has concluded that a temporary operation plate printed on paper at the customer's printer and displayed in the rear window of the vehicle meets the requirement under s.
341.04
, Stats. Since the temporary operation plate number and vehicle and owner identifying information will be available real-time on-line to law enforcement, DMV has concluded that the risk of fraud or counterfeiting is minimized.
Analysis and supporting documents used in determination of effect on small business or in preparation of economic impact report
DMV is migrating toward as many applications as feasible to be conducted electronically, which will reduce time and cost burden to small businesses as well as individuals. Currently, any vehicle purchased through a Wisconsin-licensed motor vehicle dealer will be processed electronically by the dealer. DMV is developing a web-based electronic title and registration process for "private" — non-dealer — sales. DMV will offer this option for automobiles and light trucks (8,000 lbs or less) and motorcycles, which comprise almost 94% of all vehicles in Wisconsin.
Effect on Small Business
To the extent that small businesses purchase eligible vehicles through private sales, this application will have a positive effect on small businesses. The Department's Regulatory Review Coordinator may be contacted by e-mail at
ralph.sanders@dot.wisconsin.gov
, or by calling (414) 438-4585.
Fiscal Estimate
The Department estimates that there will be no fiscal impact on the liabilities or revenues of any county, city, village, town, school district, vocational, technical and adult education district, sewerage district, or federally-recognized tribes or bands.
Anticipated costs incurred by private sector
The Department estimates that there will be no fiscal impact on state or private sector revenues or liabilities.
Agency Contact Person
Rhonda Alley, Department of Transportation, Division of Motor Vehicles, Bureau of Vehicle Services, Room 253, P. O. Box 7911, Madison, WI 53707-7911. You may also contact Ms. Alley by phone at (608) 264-7396 or via e-mail:
rhonda.alley@wisconsin.gov
.
