No commitment without hearing

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A court cannot confine a defendant for failing to pay the fees of his court-appointed attorney without a hearing and a finding that the defendant is able to pay.

In so holding, the Wisconsin Court of Appeals on Oct. 17 grafted the requirements of Fuller v. Oregon, 417 U.S. 40 (1974), onto Wisconsin’s recoupment statute, sec. 973.07.

In 2002, Kevin J. Helsper was charged with a total of seven offenses after a car chase. Helsper petitioned for an appointed attorney, alleging that he had been rejected by the state public defender, but could not afford to retain an attorney.

The court appointed an attorney to represent Helsper, to be paid by Eau Claire County, with Helsper liable to the county for reimbursement.

Ultimately, Helsper pleaded guilty to two counts, and five were dismissed. The judgments of conviction left open the amount of attorney fees to be recouped. After Helsper’s attorney submitted his bill, one of the judgments of conviction was amended to require payment of $919.75 in attorney fees.

The judgment specified that payment was due within 60 days, and failure to pay would result in commitment. No hearing was ever held to determine whether Helsper was able to pay the attorney fees.

Commitment for Fee Owed

In 2005, Helsper still owed $465.75 on his attorney fee obligation, and the court issued a commitment order authorizing Helsper’s commitment to the county jail for 33 days.

After Helsper was arrested, he challenged the validity of the commitment order. Eau Claire County Circuit Court Judge Eric J. Wahl held the order was valid, but stayed the order pending Helsper’s appeal.

The court of appeals reversed, in a decision by Judge Gregory A. Peterson, holding: (1) the U.S. Constitution requires a court to determine ability to pay at some point prior to commitment for failure to pay attorney fees; and (2) sec. 973.09 requires a hearing to make that determination.

The court began with a review of Fuller, which involved a challenge to Oregon’s recoupment statute. Under the Oregon statute, the defendant’s ability to pay was assessed at three different points in the process.

Three Points of Review

First, the court at sentencing was required to decide whether the defendant “is or will be able to pay” the fees. If there was “no likelihood” that the defendant would be able to pay in the future, the court could not require payment.

Second, a defendant could petition the court for remission of the fee obligation at any point after sentencing on the grounds of “manifest hardship.”

Third, if the defendant failed to pay, the court would issue a motion to show cause or a warrant for his arrest. After arrest, the defendant was entitled to a hearing at which the defendant could avoid imprisonment by showing that the default “was not attributable to an intentional refusal to obey the order of the court.”

The Supreme Court upheld the statute. Although the court did not expressly require all of the three safeguards found in the Oregon statute, it noted that they prevent application of the statute against those with no likelihood of obtaining the means to pay their attorney fees.

The court of appeals thus concluded, “At a minimum, then, Fuller requires some procedural safeguard designed to protect defendants from commitment if they are truly unable to pay their fee obligation.”

Must Find Ability to Pay

The court agreed with Helsper that Fuller requires a finding of ability to pay prior to all commitments for unpaid fee obligations, and that only an affirmative finding of ability to pay, at a hearing where the defendant has an opportunity to respond, satisfies Fuller.

Turning to Wisconsin’s statute, the court found these requirements lacking.

The statute provides, “If the fine, plus costs, fees, and surcharges imposed under ch. 814, are not paid … the defendant may be committed to the county jail until the fine, costs, fees, and surcharges are paid or discharged … for a period fixed by the court not to exceed 6 months.” Pursuant to sec. 973.06(1)(e), “costs, fees and surcharges” includes attorney fees paid to the defendant’s attorney by the county or the state.

Applying the statutory rule of construction that a statute be upheld against constitutional challenge “if it is at all possible to do so,” the court filled in the statute with the requirements present in the Oregon statute at issue in Fuller.

The court wrote, “We hold that, at least where no prior determination of ability to pay exists, the court must consider whether the defendant had the ability to pay the fine when it exercises its discretion under Wis. Stat. sec. 973.07. The court’s consideration of this issue must be based on a finding of ability to pay made at a hearing where the defendant is given notice and an opportunity to be heard.”

No Finding Here

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Because no such finding was made in Helsper’s case, either at sentencing, or at the time the commitment order issued, the court reversed.

Before concluding, however, the court addressed the Wisconsin Supreme Court’s decision in State ex rel. Pederson v. Blessinger, 56 Wis.2d 286, 201 N.W.2d 778 (1972), in which the court upheld the statute against a facial challenge.

The court found Blessinger distinguishable, because it addressed non-payment of a fine, rather than attorney fees.

Noting the difference in the state’ purposes in collecting a fine — punishment — and attorney fees — debt collection — the court concluded, “Punishment will not help the State collect a debt from a defendant who truly lacks the resources to pay.”

The court also noted that the fines usually at issue are traffic related, and the Supreme Court was “reluctant to impose additional procedural requirements on traffic courts due to the large volume of their caseload and the low likelihood that a given defendant would be truly unable to pay a fine.”

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