HF 455

3rd Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to public defense; updating and clarifying public defense provisions of
law; modifying right to representation by the public defender; requiring the state
public defender to supervise the statewide public defender system; authorizing
appointment of a chief appellate public defender; providing for representation
by the chief appellate public defender; striking statutory language relating to
public defender co-pays; amending Minnesota Statutes 2006, sections 270A.03,
subdivision 5; 590.05; 611.14; 611.17, subdivision 1; 611.20, subdivision 6;
611.215, subdivisions 1, 1a; 611.23; 611.24; 611.25, subdivision 1; 611.26,
subdivisions 2, 7; 611.27, subdivisions 3, 13, 15; 611.35; repealing Minnesota
Statutes 2006, section 611.20, subdivision 5.

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

Section 1.

Minnesota Statutes 2006, section 270A.03, subdivision 5, is amended to
read:

Subd. 5.

Debt.

"Debt" means a legal obligation of a natural person to pay a fixed
and certain amount of money, which equals or exceeds $25 and which is due and payable
to a claimant agency. The term includes criminal fines imposed under section 609.10 or
609.125, fines imposed for petty misdemeanors as defined in section 609.02, subdivision
4a, and restitution. deleted text begin The term also includes the co-payment for the appointment of a district
public defender imposed under section 611.17, paragraph (c). deleted text end A debt may arise under a
contractual or statutory obligation, a court order, or other legal obligation, but need not
have been reduced to judgment.

A debt includes any legal obligation of a current recipient of assistance which is
based on overpayment of an assistance grant where that payment is based on a client
waiver or an administrative or judicial finding of an intentional program violation;
or where the debt is owed to a program wherein the debtor is not a client at the time
notification is provided to initiate recovery under this chapter and the debtor is not a
current recipient of food support, transitional child care, or transitional medical assistance.

A debt does not include any legal obligation to pay a claimant agency for medical
care, including hospitalization if the income of the debtor at the time when the medical
care was rendered does not exceed the following amount:

(1) for an unmarried debtor, an income of $8,800 or less;

(2) for a debtor with one dependent, an income of $11,270 or less;

(3) for a debtor with two dependents, an income of $13,330 or less;

(4) for a debtor with three dependents, an income of $15,120 or less;

(5) for a debtor with four dependents, an income of $15,950 or less; and

(6) for a debtor with five or more dependents, an income of $16,630 or less.

The income amounts in this subdivision shall be adjusted for inflation for debts
incurred in calendar years 2001 and thereafter. The dollar amount of each income level
that applied to debts incurred in the prior year shall be increased in the same manner
as provided in section 1(f) of the Internal Revenue Code of 1986, as amended through
December 31, 2000, except that for the purposes of this subdivision the percentage increase
shall be determined from the year starting September 1, 1999, and ending August 31, 2000,
as the base year for adjusting for inflation for debts incurred after December 31, 2000.

Debt also includes an agreement to pay a MinnesotaCare premium, regardless of the
dollar amount of the premium authorized under section 256L.15, subdivision 1a.

Sec. 2.

Minnesota Statutes 2006, section 590.05, is amended to read:

590.05 INDIGENT PETITIONERS.

A person financially unable to obtain counsel who desires to pursue the remedy
provided in section 590.01 may apply for representation by the state public defender.
The state public defender shall represent such person under the applicable provisions
of sections 611.14 to 611.27, if the person has not already had a direct appeal of the
conviction. deleted text begin If, however, 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. deleted text end The state public defender may represent, without charge, all other persons
pursuing a postconviction remedy under section 590.01, who are financially unable
to obtain counsel.

Sec. 3.

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

611.14 RIGHT TO REPRESENTATION BY PUBLIC DEFENDER.

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 deleted text begin , 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 deleted text end ;

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

(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.

Sec. 4.

Minnesota Statutes 2006, section 611.17, subdivision 1, is amended to read:

Subdivision 1.

Standards for district public defense eligibility.

(a) Each judicial
district must screen requests for representation by the district public defender. A defendant
is financially unable to obtain counsel if:

(1) the defendant, or any dependent of the defendant who resides in the same
household as the defendant, receives means-tested governmental benefits; or

(2) the defendant, through any combination of liquid assets and current income,
would be unable to pay the reasonable costs charged by private counsel in that judicial
district for a defense of the same matter.

(b) Upon a request for the appointment of counsel, the court shall make appropriate
inquiry into the financial circumstances of the applicant, who shall submit a financial
statement under oath or affirmation setting forth the applicant's assets and liabilities,
including the value of any real property owned by the applicant, whether homestead or
otherwise, less the amount of any encumbrances on the real property, the source or sources
of income, and any other information required by the court. The applicant shall be under
a continuing duty while represented by a public defender to disclose any changes in the
applicant's financial circumstances that might be relevant to the applicant's eligibility for a
public defender. The state public defender shall furnish appropriate forms for the financial
statements. The forms must contain conspicuous notice of the applicant's continuing duty
to disclose to the court changes in the applicant's financial circumstances. The forms must
also contain conspicuous notice of the applicant's obligation to make a co-payment for the
services of the district public defender, as specified under paragraph (c). The information
contained in the statement shall be confidential and for the exclusive use of the court
and the public defender appointed by the court to represent the applicant except for any
prosecution under section 609.48. A refusal to execute the financial statement or produce
financial records constitutes a waiver of the right to the appointment of a public defender.
The court shall not appoint a district public defender to a defendant who is financially able
to retain private counsel but refuses to do so.

An inquiry to determine financial eligibility of a defendant for the appointment of
the district public defender shall be made whenever possible prior to the court appearance
and by such persons as the court may direct. This inquiry may be combined with the
prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02,
subdivision 3. In no case shall the district public defender be required to perform this
inquiry or investigate the defendant's assets or eligibility. The court has the sole duty to
conduct a financial inquiry. The inquiry must include the following:

(1) the liquidity of real estate assets, including the defendant's homestead;

(2) any assets that can be readily converted to cash or used to secure a debt;

(3) the determination of whether the transfer of an asset is voidable as a fraudulent
conveyance; and

(4) the value of all property transfers occurring on or after the date of the alleged
offense. The burden is on the accused to show that he or she is financially unable to afford
counsel. Defendants who fail to provide information necessary to determine eligibility
shall be deemed ineligible. The court must not appoint the district public defender as
advisory counsel.

deleted text begin (c) Upon appointment of the public defender, an individual who receives public
defender services shall be obligated to pay to the court a co-payment for representation
provided by a public defender. The co-payment shall be according to the following
schedule:
deleted text end

deleted text begin (1) if the person was charged with a felony, $200;
deleted text end

deleted text begin (2) if the person was charged with a gross misdemeanor, $100; or
deleted text end

deleted text begin (3) if the person was charged with a misdemeanor, $50.
deleted text end

deleted text begin If the person is a child and was appointed counsel under the provisions of section
deleted text begin 260B.163, subdivision 4 deleted text end , the parents of the child shall pay to the court a co-payment of
$100. If the person is a parent of a child and the parent was appointed counsel under
the provisions of section deleted text begin 260C.163, subdivision 3 deleted text end , the parent shall pay to the court a
co-payment of $200.
deleted text end

deleted text begin If a term of probation is imposed as a part of an offender's sentence, the co-payment
required by this section must not be made a condition of probation. The co-payment
required by this section is a civil obligation and must not be made a condition of a criminal
sentence. Collection of the co-payment may be made through the provisions of chapter
270A, the Revenue Recapture Act.
deleted text end

deleted text begin (d) All public defender co-pay revenue collected under paragraph (c) and revenues
less statutory fees collected under chapter 270A shall be deposited in the public defender
co-pay account in the special revenue fund.
deleted text end

deleted text begin The first $2,740,000 deposited in the public defender co-pay account must be
transferred to the general fund. This is not an annual transfer. Receipts in excess of the first
$2,740,000 are appropriated to the Board of Public Defense for public defender services.
deleted text end

new text begin (c) Upon disposition of the case, an individual who has received public defender
services shall pay to the court a $28 co-payment for representation provided by a public
defender, unless the co-payment is, or has been, waived by the court.
new text end

new text begin The co-payment must be credited to the general fund. If a term of probation is
imposed as a part of an offender's sentence, the co-payment required by this section must
not be made a condition of probation. The co-payment required by this section is a civil
obligation and must not be made a condition of a criminal sentence.
new text end

Sec. 5.

Minnesota Statutes 2006, section 611.20, subdivision 6, is amended to read:

Subd. 6.

Reimbursement schedule guidelines.

In determining a defendant's
reimbursement schedule, the court may derive a specific dollar amount per month
by multiplying the defendant's net income by the percent indicated by the following
guidelines:

Net Income Per Month of Defendant		Number of Dependents Not Including Defendant
		4 or more		3		2		1		0
$200 and Below		Percentage based on the ability of the defendant to pay as determined by the court.
$200 - 350		8%		9.5%		11%		12.5%		14%
$351 - 500		9%		11%		12.5%		14%		15%
$501 - 650		10%		12%		14%		15%		17%
$651 - 800		11%		13.5%		15.5%		17%		19%
$801 and above		12%		14.5%		17%		19%		20%

deleted text begin "Net income" shall have the meaning given it in section 518.551, subdivision 5.
deleted text end

Sec. 6.

Minnesota Statutes 2006, section 611.215, subdivision 1, is amended to read:

Subdivision 1.

Structure; membership.

(a) The State Board of Public Defense
is a part of, but is not subject to the administrative control of, the judicial branch of
government. The State Board of Public Defense shall consist of seven members including:

(1) four attorneys admitted to the practice of law, well acquainted with the defense
of persons accused of crime, but not employed as prosecutors, appointed by the Supreme
Court; and

(2) three public members appointed by the governor.

deleted text begin After the expiration of the terms of persons appointed to the board before March
1, 1991, deleted text end The appointing authorities may not appoint a person who is a judge to be a
member of the State Board of Public Defense, other than as a member of the ad hoc
Board of Public Defense.

(b) All members shall demonstrate an interest in maintaining a high quality,
independent defense system for those who are unable to obtain adequate representation.
Appointments to the board shall include qualified women and members of minority
groups. At least three members of the board shall be from judicial districts other than the
First, Second, Fourth, and Tenth Judicial Districts. The terms, compensation, and removal
of members shall be as provided in section 15.0575. The chair shall be elected by the
members from among the membership for a term of two years.

(c) In addition, the State Board of Public Defense shall consist of a nine-member ad
hoc board when considering the appointment of district public defenders under section
611.26, subdivision 2. The terms of chief district public defenders currently serving shall
terminate in accordance with the staggered term schedule set forth in section 611.26,
subdivision 2.

Sec. 7.

Minnesota Statutes 2006, section 611.215, subdivision 1a, is amended to read:

Subd. 1a.

Chief administrator.

The new text begin State Board of Public Defense, with the advice
of the new text end state public defender new text begin , new text end shall appoint a chief administrator who must be chosen
solely on the basis of training, experience, and other qualifications, and who will serve
at the pleasure of the deleted text begin state public defender deleted text end new text begin State Board of Public Defense new text end . The chief
administrator need not be licensed to practice law. The chief administrator shall attend all
meetings of the board, but may not vote, and shall:

(1) enforce all resolutions, rules, regulations, or orders of the board;

(2) present to the board and the state public defender plans, studies, and reports
prepared for the board's and the state public defender's purposes and recommend to the
board and the state public defender for adoption measures necessary to enforce or carry
out the powers and duties of the board and the state public defender, or to efficiently
administer the affairs of the board and the state public defender;

(3) keep the board fully advised as to its financial condition, and prepare and submit
to the board its annual budget and other financial information as it may request;

(4) recommend to the board the adoption of rules and regulations necessary for the
efficient operation of the board and its functions; and

(5) perform other duties prescribed by the board and the state public defender.

Sec. 8.

Minnesota Statutes 2006, section 611.23, is amended to read:

611.23 OFFICE OF STATE PUBLIC DEFENDER; APPOINTMENT;
SALARY.

The state public defender is responsible to the State Board of Public Defense. new text begin The
state public defender shall supervise the operation, activities, policies, and procedures
of the statewide public defender system. When requested by a district public defender
or appointed counsel, the state public defender may assist the district public defender,
appointed counsel, or an organization designated in section 611.216 in the performance
of duties, including trial representation in matters involving legal conflicts of interest or
other special circumstances, and assistance with legal research and brief preparation. new text end
The state public defender shall be appointed by the State Board of Public Defense for a
term of four years, except as otherwise provided in this section, and until a successor is
appointed and qualified. The state public defender shall be a full-time qualified attorney,
licensed to practice law in this state, serve in the unclassified service of the state, and
be removed only for cause by the appointing authority. Vacancies in the office shall be
filled by the appointing authority for the unexpired term. The salary of the state public
defender shall be fixed by the State Board of Public Defense but must not exceed the
salary of a district court judge. Terms of the state public defender shall commence on July
1. The state public defender shall devote full time to the performance of duties and shall
not engage in the general practice of law.

Sec. 9.

Minnesota Statutes 2006, section 611.24, is amended to read:

611.24 new text begin CHIEF APPELLATE PUBLIC DEFENDER; new text end ORGANIZATION OF
OFFICE; ASSISTANTS.

deleted text begin The state public defender shall supervise the operation, activities, policies and
procedures of the state public defender system. The state public defender shall employ or
retain assistant state public defenders, a chief administrator, a deputy state deleted text end new text begin (a) Beginning
January 1, 2007, and for every four years after that date, the State Board of Public Defense
shall appoint a chief appellate new text end public defender in charge of appellate services, new text begin who shall
employ or retain assistant state public defenders new text end and other personnel as may be necessary
to discharge the functions of the office. new text begin The chief appellate public defender shall serve a
four-year term and may be removed only for cause upon the order of the State Board of
Public Defense. The chief appellate public defender shall be a full-time qualified attorney,
licensed to practice law in this state, and serve in the unclassified service of the state.
Vacancies in the office shall be filled by the appointing authority for the unexpired term.
new text end

new text begin (b) new text end An assistant state public defender shall be a qualified attorney, licensed to
practice law in this state, serve in the unclassified service of the state if employed, and
serve at the pleasure of the appointing authority at a salary or retainer fee not to exceed
reasonable compensation for comparable services performed for other governmental
agencies or departments. Retained or part-time employed assistant state public defenders
may engage in the general practice of law. new text begin The compensation of the chief appellate public
defender and the compensation of each assistant state public defender shall be set by the
State Board of Public Defense. The chief appellate public defender shall devote full time
to the performance of duties and shall not engage in the general practice of law.
new text end

new text begin (c) The incumbent deputy state public defender as of December 31, 2006, shall be
appointed as the chief appellate public defender for the four-year term beginning on
January 1, 2007.
new text end

Sec. 10.

Minnesota Statutes 2006, section 611.25, subdivision 1, is amended to read:

Subdivision 1.

Representation.

(a) The deleted text begin state deleted text end new text begin chief appellate new text end public defender shall
represent, without charge:

(1) a defendant or other person appealing from a conviction of a felony or gross
misdemeanor;

(2) 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 deleted text begin ,
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 deleted text end ; and

(3) a child who is appealing from a delinquency adjudication or from an extended
jurisdiction juvenile conviction.

(b) The deleted text begin state deleted text end new text begin chief appellate new text end public defender may represent, without charge, all other
persons pursuing a postconviction remedy under section 590.01, who are financially
unable to obtain counsel.

(c) deleted text begin The state public defender shall represent any other person, who is financially
unable to obtain counsel, when directed to do so by the Supreme Court or the Court of
Appeals, except that deleted text end The deleted text begin state deleted text end new text begin chief appellate new text end public defender shall not represent a person
in any action or proceeding in which a party is seeking a monetary judgment, recovery or
award. deleted text begin When requested by a district public defender or appointed counsel, the state public
defender may assist the district public defender, appointed counsel, or an organization
designated in section 611.216 in the performance of duties, including trial representation in
matters involving legal conflicts of interest or other special circumstances, and assistance
with legal research and brief preparation. 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

Sec. 11.

Minnesota Statutes 2006, section 611.26, subdivision 2, is amended to read:

Subd. 2.

Appointment; terms.

The state Board of Public Defense shall appoint a
chief district public defender for each judicial district. When appointing a chief district
public defender, the state Board of Public Defense membership shall be increased to
include two residents of the district appointed by the chief judge of the district to reflect
the characteristics of the population served by the public defender in that district. The
additional members shall serve only in the capacity of selecting the district public
defender. The ad hoc state Board of Public Defense shall appoint a chief district public
defender only after requesting and giving reasonable time to receive any recommendations
from the public, the local bar association, and the judges of the district. Each chief district
public defender shall be a qualified attorney licensed to practice law in this state. The chief
district public defender shall be appointed for a term of four years, beginning January 1,
pursuant to the following staggered term schedule: (1) in deleted text begin 2000 deleted text end new text begin 2008 new text end , the second and
eighth districts; (2) in deleted text begin 2001 deleted text end new text begin 2009 new text end , the first, third, fourth, and tenth districts; (3) in deleted text begin 2002 deleted text end new text begin
2010 new text end , the fifth and ninth districts; and (4) in deleted text begin 1999 deleted text end new text begin 2011 new text end , the sixth and seventh districts.
The chief district public defenders shall serve for four-year terms and may be removed for
cause upon the order of the state Board of Public Defense. Vacancies in the office shall
be filled by the appointing authority for the unexpired term. new text begin The chief district public
defenders shall devote full time to the performance of duties and shall not engage in the
general practice of law.
new text end

Sec. 12.

Minnesota Statutes 2006, section 611.26, subdivision 7, is amended to read:

Subd. 7.

Other employment.

deleted text begin Chief district public defenders and deleted text end Assistant district
public defenders may engage in the general practice of law where not employed on a
full-time basis.

Sec. 13.

Minnesota Statutes 2006, section 611.27, subdivision 3, is amended to read:

Subd. 3.

Transcript use.

If the deleted text begin state deleted text end new text begin chief appellate new text end public defender or a district
public defender deems it necessary to make a motion for a new trial, to take an appeal,
or other postconviction proceedings in order to properly represent a defendant or other
person whom that public defender had been directed to represent, that public defender
may use the transcripts of the testimony and other proceedings filed with the court
administrator of the district court as provided by section 243.49.

Sec. 14.

Minnesota Statutes 2006, section 611.27, subdivision 13, is amended to read:

Subd. 13.

Public defense services; correctional facility inmates.

All billings for
services rendered and ordered under subdivision 7 shall require the approval of the chief
district public defender before being forwarded on a monthly basis to the state public
defender. In cases where adequate representation cannot be provided by the district public
defender and where counsel has been appointed under a court order, the state public
defender shall forward to the commissioner of finance all billings for services rendered
under the court order. The commissioner shall pay for services from deleted text begin county criminal
justice aid retained by the commissioner of revenue for that purpose under section
477A.0121, subdivision 4, or from deleted text end county program aid retained by the commissioner of
revenue for that purpose under section 477A.0124, subdivision 1, clause (4), or 477A.03,
subdivision 2b, paragraph (a).

The costs of appointed counsel and associated services in cases arising from new
criminal charges brought against indigent inmates who are incarcerated in a Minnesota
state correctional facility are the responsibility of the state Board of Public Defense. In
such cases the state public defender may follow the procedures outlined in this section for
obtaining court-ordered counsel.

Sec. 15.

Minnesota Statutes 2006, section 611.27, subdivision 15, is amended to read:

Subd. 15.

Costs of transcripts.

In appeal cases and postconviction cases where the
deleted text begin state deleted text end new text begin appellate new text end public defender's office does not have sufficient funds to pay for transcripts
and other necessary expenses because it has spent or committed all of the transcript funds
in its annual budget, the state public defender may forward to the commissioner of finance
all billings for transcripts and other necessary expenses. The commissioner shall pay for
these transcripts and other necessary expenses from deleted text begin county criminal justice aid retained
by the commissioner of revenue under section 477A.0121, subdivision 4, or from deleted text end county
program aid retained by the commissioner of revenue for that purpose under section
477A.0124, subdivision 1, clause (4), or 477A.03, subdivision 2b, paragraph (a).

Sec. 16.

Minnesota Statutes 2006, section 611.35, is amended to read:

611.35 REIMBURSEMENT OF deleted text begin PUBLIC DEFENDER AND APPOINTIVE deleted text end new text begin
APPOINTED new text end COUNSEL.

Subdivision 1.

Reimbursement; civil obligation.

Any person who is represented
by deleted text begin a public defender or appointive deleted text end new text begin appointed new text end counsel shall, if financially able to pay,
reimburse the governmental unit chargeable with the compensation of deleted text begin such public
defender or appointive deleted text end new text begin appointed new text end counsel for the actual costs to the governmental unit in
providing the services of the deleted text begin public defender or appointive deleted text end new text begin appointed new text end counsel. The court in
hearing such matter shall ascertain the amount of such costs to be charged to the defendant
and shall direct reimbursement over a period of not to exceed six months, unless the court
for good cause shown shall extend the period of reimbursement. If a term of probation is
imposed as a part of a sentence, reimbursement of costs as required by this chapter must
not be made a condition of probation. Reimbursement of costs as required by this chapter
is a civil obligation and must not be made a condition of a criminal sentence.

Subd. 2.

Civil action.

The county attorney may commence a civil action to recover
such cost remaining unpaid at the expiration of six months unless the court has extended
the reimbursement period and shall, if it appears that such recipient of deleted text begin public defender or
appointive deleted text end new text begin appointed new text end counsel services is about to leave the jurisdiction of the court or sell
or otherwise dispose of assets out of which reimbursement may be obtained, commence
such action forthwith. The county attorney may compromise and settle any claim for
reimbursement with the approval of the court which heard the matter. No determination or
action shall be taken later than two years after the termination of the duties of the deleted text begin public
defender or appointive deleted text end new text begin appointed new text end counsel.

Sec. 17. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 611.20, subdivision 5, new text end new text begin is repealed.
new text end