Section 977.05. State public defender.

 

(1)   Appointment. The board shall appoint a state public defender, who shall be a member of the State Bar of Wisconsin. The state public defender shall serve for a period of 5 years and shall continue until a successor is appointed, except that at the conclusion of the 5-year term of the state public defender in office as of July 1, 1980, the state public defender shall be appointed to serve at the pleasure of the board. He or she shall devote full time to the performance of duties as state public defender.

(2)   Removal. During a 5-year term commencing prior to July 1, 1980, the state public defender may be discharged only for cause by the board after a public hearing. If the state public defender is serving at the pleasure of the board, he or she is subject to removal under s. 17.07 .

(3)   Salary. The salary of the state public defender shall not be decreased while he or she serves in that position.

(4)   Duties. The state public defender shall:

(a) Supervise the operation, activities, policies and procedures of the office of the state public defender.

(am) Establish a case management system for use by the trial and appellate staff attorneys of the office of the state public defender. The system shall require the attorneys to record time spent on each case and to classify or describe the type of work done.

(b) Be the chief legal officer of the office of the state public defender and make all final decisions regarding the disposition of any case handled by the office.

(c) Prepare and submit to the board for its approval the biennial budget of the office of the state public defender.

(cm) Appoint one deputy, the number of division administrators specified in s. 230.08 (2) (e) 8m. and all staff attorneys in the unclassified service and appoint all other employees in the classified service.

(d) Prepare and submit to the board for its approval such personnel and employment policies as the board shall require.

(e) Prepare and submit to the board and such other persons as may be appropriate an annual report of the activities of the office in such form as the board shall direct.

(f) Determine when and where it is necessary to establish offices for the state public defender and arrange for the rental of such space consistent with the policy and procedure of the department of administration.

(g) In accordance with the standards under pars. (h) and (j) , accept referrals from judges, courts or appropriate state agencies for the determination of indigency of persons who claim or appear to be indigent. If a referral is accepted and if the person is determined to be indigent in full or in part, the state public defender shall appoint counsel in accordance with contracts and policies of the board, and inform the referring judge, court or agency of the name and address of the specific attorney who has been assigned to the case.

(gm) In accordance with the standards under pars. (h) and (i) , accept referrals from judges and courts for the provision of legal services without a determination of indigency of persons who are entitled to be represented by counsel under s. 48.23 , 51.60 , 55.105 , or 938.23 , appoint counsel in accordance with contracts and policies of the board, and inform the referring judge or court of the name and address of the specific attorney who has been assigned to the case.

(h) Accept requests for legal services from persons who are entitled to be represented by counsel under s. 48.23 , 51.60 , 55.105 , or 938.23 and from indigent persons who are entitled to be represented by counsel under s. 967.06 or who are otherwise so entitled under the constitution or laws of the United States or this state and provide such persons with legal services when, in the discretion of the state public defender, such provision of legal services is appropriate.

(i) Provide legal services in:

1. Cases involving persons charged with a crime against life under ss. 940.01 to 940.12 .

2. Cases involving persons charged with a felony not specified under subd. 1.

3. Cases involving persons charged with a misdemeanor that is punishable by imprisonment but is not specified under subd. 1.

4. Cases involving persons subject to emergency detention or involuntary civil commitment under ch. 51 .

5. 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 .

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) .

8. Cases involving individuals who are subject to petitions for protective placement or involuntary administration of psychotropic medication under ch. 55 .

(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) .

(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.

(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.

(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.

(m) Perform all other duties necessary or incidental to the performance of any duty enumerated in this chapter.

(4r)   Services reimbursement.

(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.

(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) .

(5)   Powers. The state public defender may:

(a) Delegate the legal representation of any person to any member of the State Bar of Wisconsin certified under s. 977.08 .

(b) Designate persons as representatives of the state public defender for the purpose of making indigency determinations and appointing counsel, if applicable.

(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.

(d) Negotiate contracts with local public defender organizations as directed by the board.

(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) .

(6)   Restrictions.

(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.

(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:

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) .

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.

(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:

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.

2. Files the motion to modify sentence under s. 973.19 (1) (a) within 20 days after the sentence or order is entered.

(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.

(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:

1. The probationer is contesting the modification of the conditions of probation.

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

(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:

1. The parolee or person on extended supervision is contesting the revocation of parole or extended supervision.

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

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

1. The probationer is contesting the revocation of probation.

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.

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