Bill Text: MN SF1678 | 2011-2012 | 87th Legislature | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Public defenders provisions modifications; financial responsibilities outline for children in need of protection services (CHIPS) cases

Spectrum: Moderate Partisan Bill (Republican 8-2)

Status: (Passed) 2012-04-24 - Secretary of State Chapter 212 04/23/12 [SF1678 Detail]

Download: Minnesota-2011-SF1678-Engrossed.html

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A bill for an act

relating to public defenders; amending provisions related to public defender
representation, appointment, and reimbursement obligations; outlining financial
responsibility for public defender costs, cost for counsel in CHIPS cases, pretrial
appeals costs, and standby counsel costs; amending Minnesota Statutes 2010,
sections 244.052, subdivision 6; 257.69, subdivision 1; 260B.163, subdivision
4; 260B.331, subdivision 5; 260C.163, subdivision 3; 260C.331, subdivision 5;
609.115, subdivision 4; 609.131, subdivision 1; 611.14; 611.16; 611.17; 611.18;
611.20, subdivision 4; 611.25, subdivision 1; 611.26, subdivision 6; 611.27,
subdivision 5, by adding a subdivision; repealing Minnesota Statutes 2010,
section 611.20, subdivision 6.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

    Section 1. Minnesota Statutes 2010, section 244.052, subdivision 6, is amended to read:
    Subd. 6. Administrative review. (a) An offender assigned or reassigned to
risk level II or III under subdivision 3, paragraph (e) or (h), has the right to seek
administrative review of an end-of-confinement review committee's risk assessment
determination. The offender must exercise this right within 14 days of receiving notice
of the committee's decision by notifying the chair of the committee. Upon receiving the
request for administrative review, the chair shall notify: (1) the offender; (2) the victim
or victims of the offender's offense who have requested disclosure or their designee; (3)
the law enforcement agency that investigated the offender's crime of conviction or, where
relevant, the law enforcement agency having primary jurisdiction where the offender was
committed; (4) the law enforcement agency having jurisdiction where the offender expects
to reside, providing that the release plan has been approved by the hearings and release
unit of the department of corrections; and (5) any other individuals the chair may select.
The notice shall state the time and place of the hearing. A request for a review hearing
shall not interfere with or delay the notification process under subdivision 4 or 5, unless
the administrative law judge orders otherwise for good cause shown.
(b) An offender who requests a review hearing must be given a reasonable
opportunity to prepare for the hearing. The review hearing shall be conducted on the
record before an administrative law judge. The review hearing shall be conducted at
the correctional facility in which the offender is currently confined. If the offender no
longer is incarcerated, the administrative law judge shall determine the place where the
review hearing will be conducted. The offender has the burden of proof to show, by a
preponderance of the evidence, that the end-of-confinement review committee's risk
assessment determination was erroneous. The attorney general or a designee shall defend
the end-of-confinement review committee's determination. The offender has the right to
be present and be represented by counsel at the hearing, to present evidence in support
of the offender's position, to call supporting witnesses and to cross-examine witnesses
testifying in support of the committee's determination. Counsel for indigent offenders
shall be provided by the Legal Advocacy Project of the state public defender's office.
(c) After the hearing is concluded, the administrative law judge shall decide
whether the end-of-confinement review committee's risk assessment determination
was erroneous and, based on this decision, shall either uphold or modify the review
committee's determination. The judge's decision shall be in writing and shall include
the judge's reasons for the decision. The judge's decision shall be final and a copy of it
shall be given to the offender, the victim, the law enforcement agency, and the chair of
the end-of-confinement review committee.
(d) The review hearing is subject to the contested case provisions of chapter 14.
(e) The administrative law judge may seal any portion of the record of the
administrative review hearing to the extent necessary to protect the identity of a victim of
or witness to the offender's offense.
EFFECTIVE DATE.This section is effective August 1, 2012, and applies to review
hearings requested on or after that date.

    Sec. 2. Minnesota Statutes 2010, section 257.69, subdivision 1, is amended to read:
    Subdivision 1. Representation by counsel. In all proceedings under sections
257.51 to 257.74, any party may be represented by counsel. The county attorney shall
represent the public authority. The court shall appoint counsel for a party who is unable to
pay timely for counsel In proceedings under sections 257.51 to 257.74, the court shall
appoint counsel for a party who would be financially unable to obtain counsel under the
guidelines set forth in section 611.17. The representation of appointed counsel is limited
in scope to the issue of establishment of parentage.

    Sec. 3. Minnesota Statutes 2010, section 260B.163, subdivision 4, is amended to read:
    Subd. 4. 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. This right does not apply to a child who is charged with a juvenile petty offense
as defined in section 260B.007, subdivision 16, unless the child is charged with a third
or subsequent juvenile alcohol or controlled substance offense and may be subject to the
alternative disposition described in section 260B.235, subdivision 6.
(b) The court shall appoint counsel, or standby counsel if the child waives the right
to counsel, for a child who is:
(1) charged by delinquency petition with a gross misdemeanor or felony offense; or
(2) the subject of a delinquency proceeding in which out-of-home placement has
been proposed.
(c) If they desire counsel but are unable to employ it, the court shall appoint counsel
to represent the child or the parents or guardian in any case in which it feels that such an
appointment is appropriate, except a juvenile petty offender who does not have the right to
counsel under paragraph (a). If the court appoints standby or advisory counsel, the cost of
counsel shall be paid for by the Office of the State Court Administrator with state funds
or, if the prosecutor requests the appointment, by the governmental unit conducting the
prosecution. In no event may the court order the Board of Public Defense to pay the cost
of standby or advisory counsel.
(d) Counsel for the child shall not also act as the child's guardian ad litem.

    Sec. 4. Minnesota Statutes 2010, section 260B.331, subdivision 5, is amended to read:
    Subd. 5. Attorneys fees. (a) In proceedings in which the court has appointed
counsel pursuant to section 260B.163, subdivision 4, for a minor unable to employ
counsel, the court may shall inquire into the ability of the parents, guardians, or custodians
to pay for such counsel's services and, after giving the parents these persons a reasonable
opportunity to be heard, may order the parents appropriate person to pay attorneys fees.
(b) The court may order a parent, guardian, or custodian who is employed when
counsel is appointed, or who becomes employed while represented by appointed counsel,
or who is or becomes able to make partial payments for appointed counsel, to reimburse
the state for the cost of appointed counsel. If reimbursement is required under this
subdivision, the court shall order the reimbursement when counsel is first appointed or
as soon as possible after the court determines that reimbursement is required. The court
may accept partial reimbursement from a parent, guardian, or custodian if their financial
circumstances warrant a reduced reimbursement schedule. If a parent, guardian, or
custodian does not agree to make payments, the court may order their respective employer
to withhold a percentage of their respective income to be turned over to the court. In
determining the percentage to be withheld, the court shall consider the income and assets
of the parent, guardian, or custodian.

    Sec. 5. Minnesota Statutes 2010, 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 as provided in this subdivision.
(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 under
section 611.14, clause (4), or the parents or guardian parent, guardian, or custodian in any
case in which it feels that such an appointment is appropriate if the person would be
financially unable to obtain counsel under the guidelines set forth in section 611.17.
(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 or other counsel at public expense in accordance with paragraph (b)
this subdivision.
(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.
(f) Court-appointed counsel for the parent, guardian, or custodian under this
subdivision is at county expense. The court shall appoint only one counsel at public
expense to jointly represent the interests of the parent, guardian, and custodian subject
to the jurisdiction of the court unless, upon petition of a party, the court determines and
makes written findings on the record that extraordinary circumstances exist that require
counsel to be appointed to represent a separate interest of other parents, guardians, or
custodians subject to the jurisdiction of the juvenile court. The court shall appoint counsel
retained by the county to provide representation in juvenile court proceedings unless the
court finds there is a conflict of interest. Upon a finding of conflict of interest, the county
shall contract with competent counsel to provide the necessary representation. The county
board must consult with the chief judge of the judicial district or the judge's designee
before retaining counsel under this paragraph.
(g) Counsel retained by the county under paragraph (f) must meet the qualifications
established by the Judicial Council in at least one of the following: (1) has a minimum of
two years' experience handling child protection cases; (2) has training in handling child
protection cases from a course or courses approved by the Judicial Council; or (3) is
supervised by an attorney who meets the minimum qualifications under clause (1) or (2).
EFFECTIVE DATE.This section is effective January 1, 2013.

    Sec. 6. Minnesota Statutes 2010, section 260C.331, subdivision 5, is amended to read:
    Subd. 5. Attorneys fees. (a) In proceedings in which the court has appointed
counsel pursuant to section 260C.163, subdivision 3, and section 611.14, clause (4), for a
minor unable to employ counsel, the court may shall inquire into the ability of the parents,
guardians, or custodians to pay for such counsel's services and, after giving the parents
these persons a reasonable opportunity to be heard, may order the parents appropriate
person to pay attorneys fees.
(b) The court shall order a parent, guardian, or custodian who is employed when
counsel is appointed, or who becomes employed while represented by appointed
counsel, or who is or becomes able to make partial payments for appointed counsel, to
reimburse the governmental unit providing counsel for the cost of appointed counsel. If
reimbursement is required under this subdivision, the court shall order the reimbursement
when counsel is first appointed or as soon as possible after the court determines that
reimbursement is required. The court may accept partial reimbursement from a parent,
guardian, or custodian if their financial circumstances warrant a reduced reimbursement
schedule. If a parent, guardian, or custodian does not agree to make payments, the court
may order their respective employer to withhold a percentage of their respective income to
be turned over to the court. In determining the percentage to be withheld, the court shall
consider the income and assets of the parent, guardian, or custodian.

    Sec. 7. Minnesota Statutes 2010, section 609.115, subdivision 4, is amended to read:
    Subd. 4. Confidential sources of information. (a) Any report made pursuant to
subdivision 1 shall be, if written, provided to counsel for all parties before sentence.
The written report shall not disclose confidential sources of information unless the
court otherwise directs. On the request of the prosecuting attorney or the defendant's
attorney a summary hearing in chambers shall be held on any matter brought in issue,
but confidential sources of information shall not be disclosed unless the court otherwise
directs. If the presentence report is given orally the defendant or the defendant's attorney
shall be permitted to hear the report.
(b) Any report made under subdivision 1 or 2 shall be provided to counsel for
the defendant for purposes of representing the defendant on any appeal or petition for
postconviction relief. The reports shall be provided by the court and the commissioner of
corrections at no cost to the defendant or the defendant's attorney.

    Sec. 8. Minnesota Statutes 2010, section 609.131, subdivision 1, is amended to read:
    Subdivision 1. General rule. Except as provided in subdivision 2, an alleged
misdemeanor violation must be treated as a petty misdemeanor if the prosecuting attorney
believes that it is in the interest of justice that the defendant not be imprisoned if convicted
and certifies that belief to the court at or before the time of arraignment or pretrial hearing,
and the court approves of the certification motion. Prior to the appointment of a public
defender to represent a defendant charged with a misdemeanor, the court shall inquire of
the prosecutor whether the prosecutor intends to certify the case as a petty misdemeanor.
The defendant's consent to the certification is not required. When an offense is certified
as a petty misdemeanor under this section, the defendant's eligibility for court-appointed
counsel must be evaluated as though the offense were a misdemeanor defendant is not
eligible for the appointment of a public defender.

    Sec. 9. Minnesota Statutes 2010, 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
misdemeanor, or a person convicted of a felony or, gross misdemeanor, or misdemeanor,
who is pursuing a postconviction proceeding and who has not already had a direct appeal
of the conviction;
    (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.
EFFECTIVE DATE.This section is effective August 1, 2012, and applies to
offenses committed on or after that date.

    Sec. 10. Minnesota Statutes 2010, section 611.16, is amended to read:
611.16 REQUEST FOR APPOINTMENT OF PUBLIC DEFENDER.
Any person described in section 611.14 or any other person entitled by law to
representation by counsel, 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.

    Sec. 11. Minnesota Statutes 2010, section 611.17, is amended to read:
611.17 FINANCIAL INQUIRY; STATEMENTS; CO-PAYMENT;
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 court determines that 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 an
appropriate inquiry into the determination of financial circumstances eligibility under
paragraph (a) 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,
which must be used by the district courts throughout the state. 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, refuses to execute the financial statement or refuses to provide information
necessary to determine financial eligibility under this section, or waives the appointment
of a public defender under section 611.19.
    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 the accused 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 or standby counsel. If the court appoints advisory or standby
counsel, the cost of counsel shall be paid for by the Office of the State Court Administrator
or, if the prosecutor requests the appointment, by the governmental unit conducting the
prosecution. In no event may the court order the Board of Public Defense to pay the cost
of advisory or standby counsel.
    (c) Upon disposition of the case, an individual who has received public defender
services shall pay to the court a $75 co-payment for representation provided by a public
defender, unless the co-payment is, or has been, reduced in part or waived by the court.
    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.

    Sec. 12. Minnesota Statutes 2010, 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, clause (2), and 611.25, subdivision 1, paragraph (a), clause (2), the
state chief appellate public defender shall be appointed. For a person covered by section
611.14 , clause (1), (3), or (4), a the chief district public defender shall be appointed to
represent that person. 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. 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.

    Sec. 13. Minnesota Statutes 2010, section 611.20, subdivision 4, is amended to read:
    Subd. 4. Employed defendants; ability to pay. (a) A court shall order a defendant
who is employed when a public defender is appointed, or who becomes employed while
represented by a public defender, or who is or becomes able to make partial payments
for counsel, to reimburse the state for the cost of the public defender. If reimbursement
is required under this subdivision, the court shall order the reimbursement when a
public defender is first appointed or as soon as possible after the court determines that
reimbursement is required. The court may accept partial reimbursement from the
defendant if the defendant's financial circumstances warrant a reduced reimbursement
schedule. The court may consider the guidelines in subdivision 6 in determining a
defendant's reimbursement schedule. If a defendant does not agree to make payments,
the court may order the defendant's employer to withhold a percentage of the defendant's
income to be turned over to the court. The percentage to be withheld may be determined
under subdivision 6 In determining the percentage to be withheld, the court shall consider
the income and assets of the defendant based on the financial statement provided by the
defendant when applying for the public defender under section 611.17.
(b) If a court determines under section 611.17 that a defendant is financially unable to
pay the reasonable costs charged by private counsel due to the cost of a private retainer fee,
the court shall evaluate the defendant's ability to make partial payments or reimbursement.

    Sec. 14. Minnesota Statutes 2010, section 611.25, subdivision 1, is amended to read:
    Subdivision 1. Representation. (a) The chief appellate public defender shall
represent, without charge:
    (1) a defendant or other person appealing from a conviction of a felony, or gross
misdemeanor, or misdemeanor;
    (2) a person convicted of a felony, or gross misdemeanor, or misdemeanor who is
pursuing a postconviction proceeding and who has not already had a direct appeal of
the conviction; and
    (3) a child who is appealing from a delinquency adjudication or from an extended
jurisdiction juvenile conviction.
    (b) The chief appellate 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) The chief appellate public defender shall not represent a person in any action or
proceeding in which a party is seeking a monetary judgment, recovery or award.
EFFECTIVE DATE.This section is effective August 1, 2012, and applies to
offenses committed on or after that date.

    Sec. 15. Minnesota Statutes 2010, section 611.26, subdivision 6, is amended to read:
    Subd. 6. Persons defended. The district public defender shall represent, without
charge, a defendant charged with a felony, a gross misdemeanor, or misdemeanor when
so directed by the district court. The district public defender shall also represent a minor
ten years of age or older in the juvenile court when so directed by the juvenile court.
The district public defender must not serve as advisory counsel or standby counsel. The
juvenile court may not order the district public defender to represent a minor who is under
the age of ten years, to serve as a guardian ad litem, or to represent a guardian ad litem.

    Sec. 16. Minnesota Statutes 2010, section 611.27, subdivision 5, is amended to read:
    Subd. 5. District public defender budgets and county payment responsibility.
The Board of Public Defense may only fund those items and services in district
public defender budgets which were included in the original budgets of district public
defender offices as of January 1, 1990. All other public defense related costs remain the
responsibility of the counties unless the state specifically appropriates for these. The
cost of additional state funding of these items and services must be offset by reductions
in local aids in the same manner as the original state takeover is solely responsible to
provide counsel in adult criminal and juvenile cases, as specified under section 611.14.
The court shall not appoint counsel at county expense for representation under section
611.14, except as provided in section 611.26, subdivision 3a, paragraph (c).

    Sec. 17. Minnesota Statutes 2010, section 611.27, is amended by adding a subdivision
to read:
    Subd. 16. Appeal by prosecuting attorney; attorney fees. (a) When a prosecuting
attorney appeals to the Court of Appeals, in any criminal case, from any pretrial order
of the district court, reasonable attorney fees and costs incurred shall be allowed to the
defendant on the appeal which shall be paid by the governmental unit responsible for the
prosecution involved in accordance with paragraph (b).
(b) By January 15, 2013, and every year thereafter, the chief judge of the judicial
district, after consultation with city and county attorneys, the chief public defender, and
members of the private bar in the district, shall establish a reimbursement rate for attorneys
fees and costs associated with representation under paragraph (a). The compensation to be
paid to an attorney for such service rendered to a defendant under this subdivision may
not exceed $5,000, exclusive of reimbursement for expenses reasonably incurred, unless
payment in excess of that limit is certified by the chief judge of the district as necessary to
provide fair compensation for services of an unusual character or duration.

    Sec. 18. REPEALER.
Minnesota Statutes 2010, section 611.20, subdivision 6, is repealed.