Section 5 - Determination of financial need(a) The determination whether a person is a needy person eligible for public defender services shall be made by the clerk of the court, or if the clerk is unavailable, by any other judicial officer of the court before which the proceedings relating to the person are pending. For purposes of this Administrative Order, the Court Administrator is authorized to define "proceedings." Such determination shall take place following the completion of the Application for Public Defender Services form by the person with the assistance of the court, if necessary. The Application for Public Defender Services shall, upon completion, be sworn to before the court or correctional personnel authorized to administer oaths by the person applying for public defender service, or by guardian if that person is incompetent. The person may be required to provide to the clerk of the court or the judicial officer, at such time as either the clerk of the court or the judicial officer directs and subject to the penalties for perjury, proof of income. Any such proof of income furnished or disclosed shall be confidential and available for review only by the clerk or judicial officer or the person submitting the financial information. In the event of any appeal, any identifying information shall be confidential and not made part of the public record. A statement of financial responsibility of persons committed as mentally ill, filed by the Department of Mental Health, shall be acceptable in lieu of the Application for Public Defender Services. The application shall be filed with the clerk. A person who has not fully completed an application for public defender services may not be found eligible unless, in exceptional cases, the person provides sufficient information to enable the clerk or other judicial officer to determine whether the person is needy, and an appropriate order pursuant to subsection (d) can be made. The public defender or assigned counsel shall not be required to make any certification as to the client's financial status. Within seven days of issuance of the determination of financial need, the applicant, the state, or the office of the defender general may ask the presiding judge to review the determination. (b) A needy person is a person who at the time of need assessment is financially unable, without undue hardship, to provide for full payment of an attorney and all other necessary expenses of representation or who is otherwise unable to employ an attorney. Factors to consider in the determination of whether a person is a needy person shall include current income, assets, current expenses and the number of dependents. (c) The following presumptions shall govern the determination of financial need: (1) Any person receiving any kind of welfare aid which constitutes a major portion of subsistence is presumed to be a needy person. (2) Any person whose gross income is at or below poverty income guidelines for nonfarm families established under the Community Services Act of 1974 is presumed to be a needy person. The presently established poverty income guidelines are contained in Appendix B of this Order. The Court Administrator shall, at such time as the poverty income guidelines are amended, amend Appendix B to conform with the new guidelines and distribute such income guidelines and any amendments thereto to all judges, state's attorneys, public defenders, and all other persons whom the Court Administrator finds necessary to notify. (d) Any person who is found to be a needy person in accordance with this order and Chapter 163 of Title 13 V.S.A., and whose annual income over the past 12 months is above 125% of the federal poverty guidelines shall be presumed to be able to pay the state for a part of the cost of defense provided to that person. The amount to be paid for each proceeding, as defined by the Court Administrator, shall be calculated according to the provisions of 13 V.S.A. § 5238. For purposes of this subsection (copayment calculation - reimbursement), income of the applicant's cohabiting family members shall be deemed to be income of the applicant. (1) To the extent that the clerk of the court or, if the clerk is unavailable, any other judicial officer finds that the applicant has income or assets available to support immediate co-payment, the applicant shall be ordered to make a co-payment to cover all or part of the total amount to be paid to the state. This co-payment shall be made to the clerk of the court. Assignment of counsel shall be contingent on the clerk's receipt of the co-payment. If so ordered, the clerk shall assign counsel as soon as the co-payment is made. (2) The remainder of the amount to be paid by the person found eligible shall be ordered to be paid in a reimbursement order. Unless the court extends the time because the needy person is incarcerated or good cause is shown, the reimbursement amount shall become due 60 days from the date of the order. This reimbursement shall be made to the clerk of the court. If reimbursement is not fully paid on the date specified in the court order, the court clerk shall notify the needy person and, 33 V.S.A. § 5523(d) notwithstanding, shall also notify the Commissioner of the Vermont State Tax Department as the person authorized to collect reimbursement. (3) Within seven days of issuance of the co-payment or reimbursement order the applicant, the state, or the office of the defender general may ask the clerk of the court or other judicial officer who ordered co-payment or reimbursement to reconsider the order. (e) Subsection (d) notwithstanding, unless the person and cohabiting family members are found to be financially unable to pay, in all cases the court shall order a minimum payment of $25.00. This assignment fee shall be paid within 60 days of assignment of counsel. (f) A person who may be or has been ordered to pay all or part of the cost of representation by co-payment or reimbursement order may at any time petition the court which made the order for remission of all of the amount or any part thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the applicant or the applicant's immediate family or that the circumstances of the case disposition and the interests of justice so require, the court may remit all or part of the amount due or modify the method of payment. (g) A juvenile shall not be ordered to pay any part of the cost of representation. (h) Co-payments, assignment fees and judicially determined reimbursement by the client for the cost of defense under this section shall be placed into the public defender special fund established by 13 V.S.A. § 5239. (i) Copies of the application and order shall be distributed to the applicant, attorney assigned, and the state's attorney. The basis for the determination of whether a person is needy shall be maintained in the case file. (j) If a person is determined to be needy, including a person who can pay the State for a part of the cost of defense, the public defender shall be responsible for the representation of the person upon assignment. If a person is determined to be not needy, the court clerk shall inform the person of the right to have the determination reviewed by the presiding judge of the trial court and to appeal the determination to a single justice of the Supreme Court by filing a complaint about such determination with the Clerk of the Supreme Court pursuant to § 5(k) herein. (k) Within seven days of issuance of the decision: (1) by the presiding judge on the review of the determination of financial need, or (2) by the court clerk on the reconsideration of the co-payment, assignment fee or reimbursement order, the applicant, the state, or the office of the defender general may file an appeal of the determination or order in accordance with § 5 (l ) of this Administrative Order.
(l) The Clerk of the Supreme Court shall receive complaints from the applicant, the state, or the defender general concerning determinations that a person is not a needy person eligible for public defender services and concerning the amount or terms of co-payment or reimbursement ordered under subsection (d) or (e) herein. The Clerk of the Supreme Court shall forward such complaints to the associate justice assigned to the area in which the trial court is located as provided in Administrative Order No. 14, or such other justice as may be designated by the Chief Justice. Such justice shall make a determination, with or without hearing, as to the merits of the complaint and may: (1) reject the complaint by a letter to the complaining party stating the reasons for such rejection; (2) order the assignment of the public defender, subject to a payment order pursuant to subsection (d) of this section; or (3) take any other action to effectuate the purposes of this order. Vt. Admin. Ord. Of. Sup. Ct. 5
Amended March 20, 1984, eff. 5/1/1984; 12/7/1988, eff. 1/2/1989; 6/25/1992, eff. 7/1/1992; 1/21/1993, eff. 4/19/1993; 6/16/1993, eff. 7/1/1993; 3/21/1996, eff. 3/21/1996; 6/14/1996, eff. 7/1/1996; 1/15/1997, eff. 2/3/1997; 11/18/1997, eff. 3/1/1998.