In re Attorney Fees in State v. Helsper

Decision Date17 October 2006
Docket NumberNo. 2006AP835-CR.,2006AP835-CR.
PartiesIn the Matter of ATTORNEY FEES IN STATE v. Kevin HELSPER. State of Wisconsin, Plaintiff-Respondent, v. Kevin J. Helsper, Defendant-Appellant.
CourtWisconsin Court of Appeals

Before CANE, C.J., HOOVER, P.J., and PETERSON, J.


Kevin Helsper appeals an order denying his motion to vacate an order committing him to the Eau Claire County Jail for failure to pay attorney fees due under his judgment of conviction. He argues his commitment is unconstitutional because he was never granted an opportunity to prove that his failure to pay was due to his indigency. We hold that WIS. STAT. § 973.071 does not allow commitment absent a finding that the defendant was able to pay an attorney fee obligation. Because no finding was made here, we reverse the order and remand with directions to vacate the commitment order.


¶ 2 On February 9, 2002, Helsper was arrested for operating a motor vehicle while under the influence of an intoxicant (OWI) and other violations after a car chase. He was charged with seven counts, including OWI—2nd, attempting to elude an officer, and possession of THC. Helsper petitioned the court 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. The attorney was to be paid by Eau Claire County, and Helsper would be liable to the County for amounts expended on his behalf.2

¶ 3 Helsper pled guilty to two counts in return for dismissal of the other five. The judgments of conviction noted that the amount of attorney fees was left open. 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 sixty 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.

¶ 4 On September 21, 2005, Helsper still owed $465.75 on his attorney fee obligation. The court issued a commitment order authorizing Helsper's commitment to the county jail for thirty-three days. Helsper was arrested and eventually released pending legal argument on the validity of the commitment order. After briefing and a hearing, the court concluded that its order was valid but stayed the order pending Helsper's appeal.


¶ 5 The meaning and constitutionality of a statute are questions of law. Dowhower ex rel. Rosenberg v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 10, 236 Wis.2d 113, 613 N.W.2d 557; Heritage Mut. Ins. Co. v. Wilber, 2001 WI App 247, ¶ 8, 248 Wis.2d 111, 635 N.W.2d 631. We review questions of law without deference to the circuit court, but benefiting from its analysis. Id.


¶ 6 We discuss (1) the constitutional procedural requirements for state recoupment of attorney fees; (2) the meaning of Wisconsin's recoupment statute; and (3) the County's contention that we must affirm the circuit court's decision under State ex rel. Pedersen v. Blessinger, 56 Wis.2d 286, 289, 201 N.W.2d 778 (1972).3 We conclude the United States Constitution requires the circuit court to determine ability to pay at some point prior to commitment for failure to pay attorney fees, and hold that Wisconsin's recoupment statute requires a hearing to make that determination. We conclude Blessinger does not control because it dealt with nonpayment of a fine, not nonpayment of a fee obligation.

I. Constitutional limits on fee recoupment

¶ 7 Constitutional limits on a state's recoupment of attorney fees are grounded in both due process and equal protection principles. Bearden v. Georgia, 461 U.S. 660, 665, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). Recoupment statutes must be tailored to "impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship." Fuller v. Oregon, 417 U.S. 40, 54, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974).

¶ 8 Fuller 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. 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. Id. at 44. Second, a defendant could petition the court for remission of the fee obligation at any point after sentencing on the grounds of "manifest hardship." Id. 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." Id.

¶ 9 The Supreme Court in Fuller did not expressly require all of the safeguards found in the Oregon statute. It did, however, note that the key to the Oregon statute's constitutionality was that it was

directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation. Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no `manifest hardship' will result.

Id. at 46. 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.

¶ 10 Helsper argues the minimum safeguard should be a finding of ability to pay prior to all commitments for unpaid fee obligations. He argues that only an affirmative finding of ability to pay, at a hearing where the defendant has an opportunity to respond, will satisfy Fuller. He observes that the circuit court here never made a finding at sentencing, at the time when the fees were determined or before the commitment order was issued.

¶ 11 We agree. Fuller requires that "those upon whom a conditional obligation is imposed [not be] subjected to collection procedures until their indigency has ended and no `manifest hardship' will result" from payment. Fuller, 417 U.S. at 46, 94 S.Ct. 2116. A defendant who lacks a hearing, notice of the right to request one, or representation is likely to be committed regardless of ability to pay the attorney fee obligation.

II. Wisconsin's recoupment statute

¶ 12 When interpreting statutes, "the cardinal rule of statutory construction is to preserve a statute and find it constitutional if it is at all possible to do so." State ex rel. Ft. Howard Paper Co. v. State Lake Dist. Bd. of Review, 82 Wis.2d 491, 505, 263 N.W.2d 178 (1978). For this reason, statutes are to be interpreted in a way that will preserve their constitutionality "if at all possible." Dowhower, 236 Wis.2d 113, ¶ 17, 613 N.W.2d 557.

¶ 13 In this case, in order to be constitutional the Wisconsin statute must require a finding of ability to pay prior to any commitment. We therefore will interpret the statute to require such a finding if at all possible.

¶ 14 Helsper was committed pursuant to WIS. STAT. § 973.07:

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.

"Costs, fees and surcharges" include attorney fees paid to the defendant's attorney by the county or the state. WIS. STAT. § 973.06(1)(e).

¶ 15 The word "may" in WIS. STAT. § 973.07 indicates that the court is to exercise its discretion when deciding whether to commit a defendant for his or her fee obligation. However, the statute is silent on what the court is to consider when exercising its discretion and the procedure it is to follow when doing so.

¶ 16 We fill in this legislative silence with the minimum requirements in Fuller. 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 attorney fee obligation when it exercises its discretion under WIS. STAT. § 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.4 Here, no such finding was made at sentencing, at the time Helsper's fees were set, or at the time the commitment order was issued.

III. The County's argument under Blessinger

¶ 17 The County does not address Fuller or the constitutional principles at issue here. Instead, it argues that we must affirm under Blessinger, 56 Wis.2d at 289, 201 N.W.2d 778. We disagree.

¶ 18 In Blessinger, the defendant was committed for an unpaid fine, which like an unpaid fee obligation is grounds for commitment under WIS. STAT. § 973.07. Id. at 288, 201 N.W.2d 778. The court held that § 973.07 was facially constitutional, but acknowledged that in individual cases the statute could be unconstitutional as applied. Id. at 298, 201 N.W.2d 778. It reasoned that the statute was facially valid because "60 days is a reasonable time to pay a fine in most cases" and the court had inherent power to stay a fine "to meet the needs in an...

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2 cases
  • State v. Dudley, 06-0049.
    • United States
    • United States State Supreme Court of Iowa
    • May 29, 2009
    ...and remand for a hearing on his reasonable ability to pay the costs of his legal assistance. See In re Attorney Fees in State v. Helsper, 297 Wis.2d 377, 724 N.W.2d 414, 418-20 (Ct.App.2006) (reversing repayment order because Wisconsin recoupment statute did not require determination of rea......
  • State v. Mark, No. 2007AP390-CR (Wis. App. 2/6/2008), 2007AP390-CR.
    • United States
    • Court of Appeals of Wisconsin
    • February 6, 2008
    ...the imposition of attorney fees requires fees to be imposed only upon those with foreseeable ability to meet the obligation, State v. Helsper, 2006 WI App 243, ¶7, 297 Wis. 2d 377, 724 N.W.2d 414, and tell us that he "does not remember if the court assessed his ability to pay, or not." He c......

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