State v. Kevin J. Helsper, 2006 WI App 243
For Helsper: Glenn L. Cushing, SPD, Madison Appellate
¶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 (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 (1974).
¶10 Helsper argues the minimum safeguard should be a finding of ability to pay prior to all commitments for unpaid fee obligations.…
¶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. 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.
As a result, these requirements are read into § 973.07:
¶16 We fill in this legislative silence with the minimum requirements inFuller. 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. § 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.  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.
 Our holding is based on the constitutional requirements for attorney fee recoupment statutes under Fuller v. Oregon, 417 U.S. 40 (1974), and only the portion of the court’s order authorizing commitment for Helsper’s attorney fee obligation is before us. We offer no opinion on the proper considerations for the court in a Wis. Stat. § 973.07 commitment action based on obligations other than unpaid attorney fees.