HF 1948

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to public defense; providing for public defender representation for
juveniles, children in need of protection, and other persons; amending Minnesota
Statutes 2006, sections 260C.163, subdivision 3; 260C.331, subdivision 3;
611.14; 611.16; 611.18.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2006, section 260C.163, subdivision 3, is amended to
read:

Subd. 3.

Appointment of counsel.

(a) The child, parent, guardian or custodian has
the right to effective assistance of counsel in connection with a proceeding in juvenile
court.

(b) Except in proceedings where the sole basis for the petition is habitual truancy, if
the child, parent, guardian, or custodian desires counsel but is unable to employ it, the
court shall appoint counsel to represent the child who is ten years of age or older or the
parents or guardian deleted text begin in any case in which it feels that such an appointment is appropriate deleted text end new text begin
pursuant to section 611.14 new text end .

(c) In any proceeding where the sole basis for the petition is habitual truancy, the
child, parent, guardian, and custodian do not have the right to appointment of a public
defender or other counsel at public expense. However, before any out-of-home placement,
including foster care or inpatient treatment, can be ordered, the court must appoint a public
defender deleted text begin or other counsel at public expense in accordance with paragraph (b) deleted text end new text begin for the child
in accordance with section 611.14, paragraph (a), clause (4) new text end .

(d) Counsel for the child shall not also act as the child's guardian ad litem.

(e) In any proceeding where the subject of a petition for a child in need of
protection or services is not represented by an attorney, the court shall determine the
child's preferences regarding the proceedings, if the child is of suitable age to express
a preference.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2008.
new text end

Sec. 2.

Minnesota Statutes 2006, section 260C.331, subdivision 3, is amended to read:

Subd. 3.

Court expenses.

new text begin (1) new text end The following expenses are a charge upon the county
in which proceedings are held upon certification of the judge of juvenile court or upon
such other authorization provided by law:

(a) The fees and mileage of witnesses, and the expenses and mileage of officers
serving notices and subpoenas ordered by the court, as prescribed by law.

(b) The expense of transporting a child to a place designated by a child-placing
agency for the care of the child if the court transfers legal custody to a child-placing
agency.

(c) The expense of transporting a minor to a place designated by the court.

(d) deleted text begin Reasonable compensation for an attorney appointed by the court to serve as
counsel, except in the Eighth Judicial District where the state courts shall pay for counsel
to a guardian ad litem until the recommendations of the task force created in Laws 1999,
chapter 216, article 7, section 42, are implemented. deleted text end new text begin The reimbursement to the Board of
Public Defense for trial court representation of noncustodial parents from the time that
the noncustodial parent is made a party to the child protection or permanent placement
proceedings under section 260C.201, subdivision 11, paragraph (d), clauses (1) to (5).
Compensation for attorney services shall be set at a rate of $60 per hour. Funds collected
by the board shall be deposited in the special revenue fund and are appropriated to the
board and do not cancel.
new text end

new text begin (2) new text end The state courts shall pay for guardian ad litem expenses.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2008.
new text end

Sec. 3.

Minnesota Statutes 2006, section 611.14, is amended to read:

611.14 RIGHT TO REPRESENTATION BY PUBLIC DEFENDER.

new text begin (a) new text end The following persons who are financially unable to obtain counsel are entitled
to be represented by a public defender:

(1) a person charged with a felony, gross misdemeanor, or misdemeanor including a
person charged under sections 629.01 to 629.29;

(2) a person appealing from a conviction of a felony or gross misdemeanor, or
a person convicted of a felony or gross misdemeanor, who is pursuing a postconviction
proceeding and who has not already had a direct appeal of the conviction, but if the person
pled guilty and received a presumptive sentence or a downward departure in sentence,
and the state public defender reviewed the person's case and determined that there was no
basis for an appeal of the conviction or of the sentence, then the state public defender may
decline to represent the person in a postconviction remedy case;

(3) a person who is entitled to be represented by counsel under section 609.14,
subdivision 2; deleted text begin or deleted text end

(4) a minor ten years of age or older who is entitled to be represented by counsel
under section 260B.163, subdivision 4, or 260C.163, subdivision 3 new text begin ;
new text end

new text begin (5) a child under ten years of age when the child's misbehavior is the sole basis for
a petition filed by the county attorney and any out-of-home placement including foster
care or inpatient treatment is being sought;
new text end

new text begin (6) a custodial parent or parents who are entitled to counsel in trial court under
section 260C.163, subdivision 3, pursuant to a petition filed by a county attorney, or, if
there is no parent, the guardian or the custodian of the child, but in cases governed by
the Indian Child Welfare Act, the district public defender may represent both parents
regardless of whether they have custody of the child, or may represent the guardian or
custodian of the child; or
new text end

new text begin (7) a noncustodial parent made a party to a child protection or permanent placement
proceeding under section 260C.201, subdivision 11, paragraph (d), clauses (1) to (5), the
cost of which will be reimbursed under section 260C.331, subdivision 3, paragraph (d) new text end .

new text begin (b) The Board of Public Defense must not provide or pay for public defender
services to persons other than those entitled to representation under this section.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2008.
new text end

Sec. 4.

Minnesota Statutes 2006, section 611.16, is amended to read:

611.16 REQUEST FOR APPOINTMENT OF PUBLIC DEFENDER.

Any person described in section 611.14 deleted text begin or any other person entitled by law to
representation by counsel, deleted text end may at any time request the court in which the matter is pending,
or the court in which the conviction occurred, to appoint a public defender to represent
the person. In a proceeding defined by clause (2) of section 611.14, application for the
appointment of a public defender may also be made to a judge of the Supreme Court.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2008.
new text end

Sec. 5.

Minnesota Statutes 2006, section 611.18, is amended to read:

611.18 APPOINTMENT OF PUBLIC DEFENDER.

If it appears to a court that a person requesting the appointment of counsel satisfies
the requirements of this chapter, the court shall order the appropriate public defender to
represent the person at all further stages of the proceeding through appeal, if any. For a
person appealing from a conviction, or a person pursuing a postconviction proceeding
and who has not already had a direct appeal of the conviction, according to the standards
of sections 611.14 and 611.25, subdivision 1, paragraph (a), clause (2), the state public
defender shall be appointed. For a person covered by section 611.14, new text begin paragraph (a), new text end clause
(1), new text begin (3), (4), (5), (6), or (7), new text end a district public defender shall be appointed to represent that
person. deleted text begin If (a) conflicting interests exist, (b) the district public defender for any other
reason is unable to act, or (c) the interests of justice require, the state public defender
may be ordered to represent a person. When the state public defender is directed by a
court to represent a defendant or other person, the state public defender may assign the
representation to any district public defender. deleted text end If at any stage of the proceedings, including
an appeal, the court finds that the defendant is financially unable to pay counsel whom the
defendant had retained, the court may appoint the appropriate public defender to represent
the defendant, as provided in this section. Prior to any court appearance, a public defender
may represent a person accused of violating the law, who appears to be financially unable
to obtain counsel, and shall continue to represent the person unless it is subsequently
determined that the person is financially able to obtain counsel. The representation may
be made available at the discretion of the public defender, upon the request of the person
or someone on the person's behalf. Any law enforcement officer may notify the public
defender of the arrest of any such person.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective January 1, 2008.
new text end