by Michelle W. Lawson
District Court Judge
With all of the law-enforcement-related television dramas out there, most people are familiar with the Miranda warning. You know how it goes: “You have the right to remain silent. Anything you say can be used against you. You have the right to an attorney. If you can’t afford an attorney, one will be appointed to represent you.” Or something to that effect. But have you ever thought about what those words mean, that “if you cannot afford an attorney, one will be appointed to represent you?”
Minnesota has a state public-defender system. Public defenders are lawyers employed by the state who are appointed to represent individuals charged with a crime who qualify financially. They are also appointed to represent juveniles alleged to have committed a delinquent offense if the juvenile and the family qualify. Criminal charges carry with them the potential of jail time and in the case of delinquent offenses the potential for out-of home placement of the juvenile offender. These are both threats to an individual’s liberty and as such the right to a court-appointed attorney attaches if they qualify financially.
An individual qualifies financially if they receive some type of means-tested (financial-based) public assistance through the state or federal government. This may include medical assistance, food stamps, cash benefits or Supplemental Security Income through the Social Security Administration, to name a few. An individual may also qualify financially if the judge finds they do not have sufficient assets or income to pay the costs charged by private attorneys in their area. This standard gives latitude to the court in determining eligibility. Household income is considered when determining eligibility. That means if a defendant has a spouse or live-in girlfriend/boyfriend who is part of the household, that adult’s income is considered as well.
Unless an individual receives some type of public assistance, he or she will likely be required to make a $75 public defender co-payment to help defray the costs of the public-defender’s office. In the event a defendant’s eligibility is marginal or close, a public defender may still be appointed to represent an individual, but they would likely be required to further reimburse the state to help defray public defender costs. The amount of reimbursement is set by the judge. The public defender co-payment and further reimbursement are generally waived when an individual receives public assistance and has little to no income.
There are limited instances when an individual may qualify for appointment of an attorney at public expense in non-criminal cases. Those instances include guardianships/conservatorships, commitments, child-protection matters, paternity and contempt proceedings. A guardianship/conservatorship case is one where one individual seeks control over the decision-making authority over another individual’s person and/or property when the subject of the petition is unable to make those decisions for themselves due to a lack of decision-making capacity. A commitment proceeding involves a mentally ill or chemically dependent individual being confined to a treatment facility as they pose a serious risk of harm to themselves or others if left untreated. Child-protection proceedings may involve the removal of a child from their parent or guardians due to abuse or neglect. A paternity proceeding determines the parent-child relationship between a father and child. The right to court-appointed counsel in a paternity action extends to both the mother and father and applies only to the issue of paternity and not related issues of custody and child support. Finally, a contempt proceeding is one involving an allegation that an individual has failed to comply with the terms of a court order and jail time is sought in order to induce compliance, most often involving cases on non-payment of child support.
Each of these instances involves the potential restriction of an individual’s liberty or a right deemed so important in the law that the right to an attorney is necessary for justice to be served. The costs for attorneys appointed in these non-criminal matters are paid by the county and usually involves attorneys under contract with the court to provide representation in these instances.
Public defenders are essential to upholding the constitutional protections afforded to every U.S. citizen under the law.
Michelle W. Lawson, based in Moorhead, is a district court judge for the Seventh Judicial District.
