Vetoed: Public defender eligibility statutes

A 2010 legislative auditor’s report on the state’s public defender system concluded that increasing workloads are affecting the ability of public defenders to represent clients and the operation of state courts.

A bill to address those issues by streamlining the process of issuing public defenders was vetoed by Gov. Mark Dayton, who believes some provisions would have had “serious consequences for low-income individuals seeking counsel.”

Sponsored by Rep. Steve Smith (R-Mound) and Sen. Warren Limmer (R-Maple Grove), the bill included recommendations from the legislative auditor’s report and the Minnesota Board of Public Defense that would have made changes to provisions regarding public defender representation, including eligibility, appointment and reimbursement obligations. The provisions were also included in the vetoed omnibus judiciary and public safety finance bill.

Included was a provision that would have established criteria to determine eligibility for public defender representation based on the offense level charged and the defendant’s income. A defendant charged with a misdemeanor offense would have been eligible for a public defender if their income did not exceed 125 percent of the federal poverty guidelines. Defendants facing a gross misdemeanor or felony charge would have been eligible for a public defender if they had an income no greater than 150 percent or

175 percent of the guidelines, respectively.

In his veto message, Dayton said he believes the legislation’s tiered income levels for eligibility to seek a public defender are “far too low,” and as a result would have jeopardized the constitutional right to counsel for low-income individuals.

Other provisions in the bill would have:

• required the court, prior to appointing a public defender, to inquire whether a prosecutor intends to certify a misdemeanor as a petty misdemeanor, and if an offense is certified as a petty misdemeanor, a defendant would not be eligible for a public defender;

• required a defendant who is or becomes able to make partial payments to reimburse the state for the cost of the public defender, including requiring the court to evaluate a defendant’s ability to make partial payments if the court originally determined that the defendant was financially unable to afford counsel due to the private retainer fee;

• allowed the court to appoint a public defender if the defendant, through any combination of liquid assets and current income, would be unable to afford private counsel; and

• prohibited the appointment of a public defender if a defendant is financially able to retain counsel but refuses to do so, refuses to execute the required financial statement or waives the right to a public defender.

HF988*/ SF952/CH94