Right to counsel

Key_development Question_mark

Legislation, Civil Commitment - Subject of Petition

Wisconsin provides the right to counsel for individuals subject to emergency detention under the "State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act". See Wis. Stat. Ann. §§ 51.15(9) (at time of detention, individual must be notified, "both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family, [and] the right to have an attorney provided at public expense"); 51.20(3) ("At the time of the filing of the petition the court shall assure that the subject individual is represented by adversary counsel by referring the individual to the state public defender, who shall appoint counsel for the individual without a determination of indigency, as provided in s. 51.60"); 51.45(13)(b)(2) (upon receipt of petition for commitment, court shall "Assure that the person is represented by counsel by referring the person to the state public defender, who shall appoint counsel for the person without a determination of indigency, as provided in s. 51.60. The person shall be represented by counsel at the preliminary hearing under par. (d). The person may, with the approval of the court, waive his or her right to representation by counsel at the full hearing under par. (f).")

 

Wis. Stat. Ann. § 51.35(1)(e) provides a right to counsel where transfer of committed individuals between facilities results in a greater restriction of personal freedom for the patient (and such patients must be informed of their right both orally and in writing). Also, within 24 hours after any transfer resulting in a greater restriction of personal freedom for the patient for a period of more than 5 days, the county department must provide written and oral notice of the patients right to counsel if the "transfer is due to an alleged violation of a condition of a transfer to less restrictive treatment". Wis. Stat. Ann. § 51.35(1)(e)(2).

 

For all of the above types of proceedings—known as "Chapter 51 proceedings"—whenever an adult has the right to counsel, the court must refer the adult "as soon as practicable" to the state public defender, who must appoint counsel without a determination of indigency, unless the individual waives his or her right and is permitted to do so. Wis. Stat. Ann. § 51.60(1). At the conclusion of proceedings under Chapter 51, "the court may inquire as to the individual's ability to reimburse the state for the costs of representation" by the public defender and may order the individual to reimburse the state. Wis. Stat. Ann. § 51.605(1). The court may also request a determination of indigency under Wis. Stat. Ann. § 977.07. Further, a child must be represented by counsel for Chapter 51 proceedings, and the court may not grant a waiver of the right to counsel for these proceedings. Wis. Stat. Ann. § 48.23(1m)(c).

Appointment of Counsel: categorical Qualified: no