CR_10-134 Revises of Chapter PD 6, Payment for Representation, relating to determining, collecting and processing the payments received from persons as payment for legal representation.

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 [e-mail] or 315 N. Henry Street, 2 nd Floor, Madison, WI 53703.

Notice of Hearing

Public Defender Board

CR 10-134

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: [e-mail] .

Copies of Proposed Rule

To view the rule online, go to: http://www.wisspd.org/CAR.asp

To view the rule fiscal note online, go to: http://legis.wisconsin.gov/2009/data/fe/AB-395fe.pdf

You may contact Kathy Pakes at [e-mail] or by telephone at [phone] 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

Sections 20.550 (1) (fb) , 973.06 (1) (e) , 977.02 (3) , 977.02 (3) (a) - (d) , 977.075 , 977.076 , Stats.

Statutory authority

Sections 20.550 (1) (fb) , 973.06 (1) (e) , 977.075 , 977.02 (3) (a) - (d) , 977.076 , 977.085 (3) , Stats.

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

The changes to Chapter PD 6 have no fiscal impact. For the fiscal impact of Chapter PD 3 , and 2009 Wisconsin Act 164 generally, see: http://legis.wisconsin.gov/2009/data/fe/AB-
395fe.pdf .

Agency Contact Person

Questions regarding these rules may be directed to Kathy Pakes at [e-mail] or 315 N. Henry Street, 2 nd Floor, Madison, WI 53703.

Notice of Hearing

Transportation

CR 10-142

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 [phone] 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 [phone] or via e-mail: [e-mail] 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 [phone] or via e-mail: [e-mail] .

To view the proposed amendments to the rule, view the current rule, and submit written comments via e-mail/internet, you may visit the following website: http://www.dot.wisconsin.gov/library/research/law/rulenotices.htm .

Analysis Prepared by the Department of Transportation

Statute(s) interpreted

Sections 341.04 and 341.09 , Stats.

Statutory authority

Sections 85.16 (1) , 227.11 and 341.09 , Stats.

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)

Sections 340.01 , 341.04 , 341.12 , 341.13 , 341.15 , Stats., and chs Trans 128 and 141.

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 [e-mail] , or by calling [phone].

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 [phone] or via e-mail: [e-mail] .