SECOND SUBSTITUTE SENATE BILL NO. 5960



                                                                            C 409 L 89



State of Washington                               51st Legislature                              1989 Regular Session


By Senate Committee on Ways & Means (originally sponsored by Senators Nelson, Talmadge and Niemi)



Read first time 3/31/89.



AN ACT Relating to indigent defense; creating new sections; and declaring an emergency.




          NEW SECTION.  Sec. 1.     The legislature finds that effective legal representation should be provided for indigent persons and persons who are indigent and able to contribute, consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches.


          NEW SECTION.  Sec. 2.     The following definitions shall be applied in connection with this act:

          (1) "Indigent" means a person who, at any stage of a court proceeding, is:

          (a) Receiving one of the following types of public assistance: Aid to families with dependent children, general assistance, poverty-related veterans' benefits, food stamps, refugee resettlement benefits, medicaid, or supplemental security income; or

          (b) Involuntarily committed to a public mental health facility; or

          (c) Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level; or

          (d) Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.

          (2) "Indigent and able to contribute" means a person who, at any stage of a court proceeding, is unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are less than the anticipated cost of counsel but sufficient for the person to pay a portion of that cost.

          (3) "Anticipated cost of counsel" means the cost of retaining private counsel for representation on the matter before the court.

          (4) "Available funds" means liquid assets and disposable net monthly income calculated after provision is made for bail obligations.  For the purpose of determining available funds, the following definitions shall apply:

          (a) "Liquid assets" means cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in motor vehicles.  A motor vehicle necessary to maintain employment and having a market value not greater than three thousand dollars shall not be considered a liquid asset.

          (b) "Income" means salary, wages, interest, dividends, and other earnings which are reportable for federal income tax purposes, and cash payments such as reimbursements received from pensions, annuities, social security, and public assistance programs.  It includes any contribution received from any family member or other person who is domiciled in the same residence as the defendant and who is helping to defray the defendant's basic living costs.

          (c) "Disposable net monthly income" means the income remaining each month after deducting federal, state, or local income taxes, social security taxes, contributory retirement, union dues, and basic living costs.

          (d) "Basic living costs" means the average monthly amount spent by the defendant for reasonable payments toward living costs, such as shelter, food, utilities, health care, transportation, clothing, loan payments, support payments, and court-imposed obligations.


          NEW SECTION.  Sec. 3.     (1) A determination of indigency shall be made for all persons wishing the appointment of counsel in criminal, juvenile, involuntary commitment, and dependency cases, and any other case where the right to counsel attaches.  The court or its designee shall determine whether the person is indigent pursuant to the standards set forth in this chapter.

          (2) In making the determination of indigency, the court shall also consider the anticipated length and complexity of the proceedings and the usual and customary charges of an attorney in the community for rendering services, and any other circumstances presented to the court which are relevant to the issue of indigency.  The appointment of counsel shall not be denied to the person because the person's friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond.

          (3) The determination of indigency shall be made upon the defendant's initial contact with the court or at the earliest time circumstances permit.  The court or its designee shall keep a written record of the determination of indigency.  Any information given by the accused under this section or sections shall be confidential and shall not be available for use by the prosecution in the pending case.

          (4) If a determination of eligibility cannot be made before the time when the first services are to be rendered, the court shall appoint an attorney on a provisional basis.  If the court subsequently determines that the person receiving the services is ineligible, the court shall notify the person of the termination of services, subject to court-ordered reinstatement.

          (5) All persons determined to be indigent and able to contribute, shall be required to execute a promissory note at the time counsel is appointed.  The person shall be informed whether payment shall be made in the form of a lump sum payment or periodic payments.  The payment and payment schedule must be set forth in writing.  The person receiving the appointment of counsel shall also sign an affidavit swearing under penalty of perjury that all income and assets reported are complete and accurate.  In addition, the person must swear in the affidavit to immediately report any change in financial status to the court.

          (6) The office or individual charged by the court to make the determination of indigency shall provide a written report and opinion as to indigency on a form prescribed by the office of the administrator for the courts, based on information obtained from the defendant and subject to verification.  The form shall include information necessary to provide a basis for making a determination with respect to indigency as provided by this chapter.


          NEW SECTION.  Sec. 4.     Each county or city under this chapter shall adopt standards for the delivery of public defense services, whether those services are provided by contract, assigned counsel, or a public defender office.  Standards shall include the following:  Compensation of counsel, duties and responsibilities of counsel, case load limits and types of cases, responsibility for expert witness fees and other costs associated with representation, administrative expenses, support services, reports of attorney activity and vouchers, training, supervision, monitoring and evaluation of attorneys, substitution of attorneys or assignment of contracts, limitations on private practice of contract attorneys, qualifications of attorneys, disposition of client complaints, cause for termination of contract or removal of attorney, and nondiscrimination.  The standards endorsed by the Washington state bar association for the provision of public defense services may serve as guidelines to contracting authorities.


          NEW SECTION.  Sec. 5.     City attorneys, county prosecutors, and law enforcement officers shall not select the attorneys who will provide indigent defense services.


          NEW SECTION.  Sec. 6.     The indigent defense task force created in chapter 156, Laws of 1988 shall be reinstituted and continued through June 1990.  Two additional persons shall be members of the task force:  A member appointed by the association of Washington cities and a member appointed by the Washington association of prosecuting attorneys.  The task force shall examine the current methods of delivering appellate indigent defense services in the state and shall make recommendations to the 1990 legislature regarding alternative methods of delivering appellate services.

          The task force shall also evaluate indigent trial defense services and make recommendations to the legislature regarding alternative methods at the county and city level of funding and providing such services.

          In addition, the task force shall review the data collected pursuant to this act and shall advise the office of the administrator for the courts or the legislature of necessary modifications to the service delivery system.  The task force shall also evaluate ongoing cost-recoupment studies and make recommendations to the legislature regarding an expanded cost recoupment program.


          NEW SECTION.  Sec. 7.     This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.

                                                                                                                             Passed the Senate April 7, 1989.


                                                                                                                                       President of the Senate.


                                                                                                                           Passed the House April 22, 1989.


                                                                                                                                         Speaker of the House.