S.B. 236

1

JUDICIARY AMENDMENTS
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Lyle W. Hillyard
5 House Sponsor: Kay L. McIff
6
7 LONG TITLE
8 General Description:
9 This bill makes technical changes to the judiciary statutes and conforming changes
10 throughout the code.
11 Highlighted Provisions:
12 This bill:
13 . clarifies requirements for judicial review of an offer of restriction in situations
14 which may pose a threat to public health;
15 . clarifies that the district court has appellate jurisdiction over justice and small
16 claims court decisions;
17 . clarifies juvenile court jurisdiction;
18 . eliminates the requirement that the petitioner on a child protective order notify the
19 court of their current address 30 days before the expiration date;
20 . sets a specific time period for a child protective order; and
21 . clarifies justice court jurisdiction over minors.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None
26 Utah Code Sections Affected:
27 AMENDS:

28 10-3-1106, as last amended by Laws of Utah 2004, Chapter 260
29 26-6b-3, as last amended by Laws of Utah 2006, Chapter 185
30 26-6b-3.3, as enacted by Laws of Utah 2006, Chapter 185
31 26-6b-3.4, as enacted by Laws of Utah 2006, Chapter 185
32 26-6b-4, as last amended by Laws of Utah 2006, Chapter 185
33 26-6b-5, as last amended by Laws of Utah 2006, Chapter 185
34 26-6b-6, as last amended by Laws of Utah 2007, Chapter 38
35 78-3-4, as last amended by Laws of Utah 2004, Chapter 201
36 78-3a-104, as last amended by Laws of Utah 2006, Chapters 55, 132, and 281
37 78-3h-104, as last amended by Laws of Utah 2006, Chapter 157
38 78-3h-105, as last amended by Laws of Utah 2007, Chapter 326
39 78-5-104, as last amended by Laws of Utah 1997, Chapter 215
40 78-45-7.2, as last amended by Laws of Utah 2007, Chapters 282 and 354
41 REPEALS:
42 78-5-105, as last amended by Laws of Utah 1997, Chapter 365
43
44 Be it enacted by the Legislature of the state of Utah:
45 Section 1. Section 10-3-1106 is amended to read:
46 10-3-1106. Discharge, suspension without pay, or involuntary transfer -- Appeals
47 -- Board -- Procedure.
48 (1) An employee to which Section 10-3-1105 applies may not be discharged, suspended
49 without pay, or involuntarily transferred to a position with less remuneration:
50 (a) because of the employee's politics or religious belief; or
51 (b) incident to, or through changes, either in the elective officers, governing body, or
52 heads of departments.
53 (2) (a) If an employee is discharged, suspended for more than two days without pay, or
54 involuntarily transferred from one position to another with less remuneration for any reason,
55 the employee may, subject to Subsection (2)(b), appeal the discharge, suspension without pay,
56 or involuntary transfer to a board to be known as the appeal board, established under
57 Subsection (7).
58 (b) If the municipality provides an internal grievance procedure, the employee shall

59 exhaust the employee's rights under that grievance procedure before appealing to the board.
60 (3) (a) Each appeal under Subsection (2) shall be taken by filing written notice of the
61 appeal with the municipal recorder within ten days after:
62 (i) if the municipality provides an internal grievance procedure, the employee receives
63 notice of the final disposition of the municipality's internal grievance procedure; or
64 (ii) if the municipality does not provide an internal grievance procedure, the discharge,
65 suspension, or involuntary transfer.
66 (b) (i) Upon the filing of an appeal under Subsection (3)(a), the municipal recorder
67 shall forthwith refer a copy of the appeal to the appeal board.
68 (ii) Upon receipt of the referral from the municipal recorder, the appeal board shall
69 forthwith commence its investigation, take and receive evidence, and fully hear and determine
70 the matter which relates to the cause for the discharge, suspension, or transfer.
71 (4) An employee who is the subject of the discharge, suspension, or transfer may:
72 (a) appear in person and be represented by counsel;
73 (b) have a public hearing;
74 (c) confront the witness whose testimony is to be considered; and
75 (d) examine the evidence to be considered by the appeal board.
76 (5) (a) (i) Each decision of the appeal board shall be by secret ballot, and shall be
77 certified to the recorder within 15 days from the date the matter is referred to it, except as
78 provided in Subsection (5)(a)(ii).
79 (ii) For good cause, the board may extend the 15-day period under Subsection (5)(a)(i)
80 to a maximum of 60 days, if the employee and municipality both consent.
81 (b) If it finds in favor of the employee, the board shall provide that the employee shall
82 receive:
83 (i) the employee's salary for the period of time during which the employee is
84 discharged or suspended without pay; or
85 (ii) any deficiency in salary for the period during which the employee was transferred
86 to a position of less remuneration.
87 (6) (a) A final action or order of the appeal board may be [appealed to] reviewed by the
88 Court of Appeals by filing with that court a [notice of appeal] petition for review.
89 (b) Each [notice of appeal] petition under Subsection (6)(a) shall be filed within 30

90 days after the issuance of the final action or order of the appeal board.
91 (c) The Court of Appeals' review shall be on the record of the appeal board and for the
92 purpose of determining if the appeal board abused its discretion or exceeded its authority.
93 (7) (a) The method and manner of choosing the members of the appeal board, the
94 number of members, the designation of their terms of office, and the procedure for conducting
95 an appeal and the standard of review shall be prescribed by the governing body of each
96 municipality by ordinance.
97 (b) For a municipality operating under a form of government other than a
98 council-mayor form under Part 12, Optional Forms of Municipal Government Act, an
99 ordinance adopted under Subsection (7)(a) may provide that the governing body of the
100 municipality shall serve as the appeal board.
101 Section 2. Section 26-6b-3 is amended to read:
102 26-6b-3. Order of restriction.
103 (1) The department having jurisdiction over the location where an individual or a group
104 of individuals who are subject to restriction are found, may:
105 (a) issue a written order of restriction for the individual or group of individuals
106 pursuant to Subsection 26-1-30 (2) or 26A-1-114 (1)(b) upon compliance with the requirements
107 of this chapter; and
108 (b) issue a verbal order of restriction for an individual or group of individuals pursuant
109 to Subsection (2)(c).
110 (2) (a) A department's determination to issue an order of restriction shall be based upon
111 the totality of circumstances reported to and known by the department, including:
112 (i) observation;
113 (ii) information that the department determines is credible and reliable information;
114 and
115 (iii) knowledge of current public health risks based on medically accepted guidelines as
116 may be established by the Department of Health by administrative rule.
117 (b) An order of restriction issued by a department must:
118 (i) in the opinion of the public health official, be for the shortest reasonable period of
119 time necessary to protect the public health;
120 (ii) use the least intrusive method of restriction that, in the opinion of the department,

121 is reasonable based on the totality of circumstances known to the health department issuing the
122 order of restriction;
123 (iii) be in writing unless the provisions of Subsection (2)(c) apply; and
124 (iv) contain notice of an individual's rights as required in Section 26-6b-3.3 .
125 (c) (i) A department may issue a verbal order of restriction, without prior notice to the
126 individual or group of individuals if the delay in imposing a written order of restriction would
127 significantly jeopardize the department's ability to prevent or limit:
128 (A) the transmission of a communicable or possibly communicable disease that poses a
129 threat to public health;
130 (B) the transmission of an infectious agent or possibly infectious agent that poses a
131 threat to public health; [or]
132 (C) the exposure or possible exposure of a chemical or biological agent that poses a
133 threat to public health; or
134 (D) the exposure or transmission of a condition that poses a threat to public health.
135 (ii) A verbal order of restriction issued under the provisions of Subsection (2)(c)(i):
136 (A) is valid for 24 hours from the time the order of restriction is issued;
137 (B) may be verbally communicated to the individuals or group of individuals subject to
138 restriction by a first responder;
139 (C) may be enforced by the first responder until the department is able to establish and
140 maintain the place of restriction; and
141 (D) may only be continued beyond the initial 24 hours if a written order of restriction is
142 issued pursuant to the provisions of Section 26-6b-3.3 .
143 (3) Pending issuance of a written order of restriction under Section 26-6b-3.3 , or
144 judicial review of an order of restriction by the district court pursuant to Section 26-6b-6 , an
145 individual who is subject to the order of restriction may be required to submit to involuntary
146 examination, quarantine, isolation, or treatment in his home, a hospital, or any other suitable
147 facility under reasonable conditions prescribed by the department.
148 (4) The department that issued the order of restriction shall take reasonable measures,
149 including the provision of medical care, as may be necessary to assure proper care related to the
150 reason for the involuntary examination, treatment, isolation, or quarantine of an individual
151 ordered to submit to an order of restriction.

152 Section 3. Section 26-6b-3.3 is amended to read:
153 26-6b-3.3. Contents of notice of order of restriction -- Rights of individuals.
154 (1) A written order of restriction issued by a department shall include the following
155 information:
156 (a) the identity of the individual or a description of the group of individuals subject to
157 the order of restriction;
158 (b) the identity or location of any premises that may be subject to restriction;
159 (c) the date and time for which the restriction begins and the expected duration of the
160 restriction;
161 (d) the suspected communicable disease, infectious, chemical or biological agent, or
162 other condition that poses a threat to public health;
163 (e) the requirements for termination of the order of restriction, such as necessary
164 laboratory reports, the expiration of an incubation period, or the completion of treatment for the
165 communicable disease;
166 (f) any conditions on the restriction, such as limitation of visitors or requirements for
167 medical monitoring;
168 (g) the medical or scientific information upon which the restriction is based;
169 (h) a statement advising of the right to a judicial review of the order of restriction by
170 the district court; and
171 (i) pursuant to Subsection (2), the rights of each individual subject to restriction.
172 (2) An individual subject to restriction has the following rights:
173 (a) the right to be represented by legal counsel in any judicial review of the order of
174 restriction in accordance with Subsection 26-6b-4 (3);
175 (b) the right to be provided with prior notice of the date, time, and location of any
176 hearing concerning the order of restriction;
177 (c) the right to participate in any hearing, in a manner established by the court based on
178 precautions necessary to prevent additional exposure to communicable or possibly
179 communicable diseases or to protect the public health;
180 (d) the right to respond and present evidence and arguments on the individual's own
181 behalf in any hearing;
182 (e) the right to cross examine witnesses; and

183 (f) the right to review and copy all records in the possession of the department that
184 issued the order of restriction which relate to the subject of the written order of restriction.
185 (3) (a) Notwithstanding the provisions of Subsection (1), if a department issues an
186 order of restriction for a group of individuals, the department may modify the method of
187 providing notice to the group or modify the information contained in the notice, if the public
188 health official determines the modification of the notice is necessary to:
189 (i) protect the privacy of medical information of individuals in the group; or
190 (ii) provide notice to the group in a manner that will efficiently and effectively notify
191 the individuals in the group within the period of time necessary to protect the public health.
192 (b) When a department modifies notice to a group of individuals under Subsection
193 (3)(a), the department shall provide each individual in the group with notice that complies with
194 the provisions of Subsection (1) as soon as reasonably practical.
195 (4) (a) In addition to the rights of an individual described in Subsections (1) and (2), an
196 individual subject to an order of restriction may not be terminated from employment if the
197 reason for termination is based solely on the fact that the individual is or was subject to an
198 order of restriction.
199 (b) The department issuing the order of restriction shall give the individual subject to
200 the order of restriction notice of the individual's employment rights under Subsection (4)(a).
201 (c) An employer in the state, including an employer who is the state or a political
202 subdivision of the state, may not violate the provisions of Subsection (4)(a).
203 Section 4. Section 26-6b-3.4 is amended to read:
204 26-6b-3.4. Medical records -- Privacy protections.
205 (1) (a) Health care providers as defined in Section 78-14-3 , health care facilities
206 licensed under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, and
207 governmental entities, shall, when requested, provide the public health official and the
208 individual subject to an order of restriction, a copy of medical records that are relevant to the
209 order of restriction.
210 (b) The records requested under Subsection (1)(a) shall be provided as soon as
211 reasonably possible after the request is submitted to the health care provider or health care
212 facility, or as soon as reasonably possible after the health care provider or facility receives the
213 results of any relevant diagnostic testing of the individual.

214 (2) (a) The production of records under the provisions of this section is for the benefit
215 of the public health and safety of the citizens of the state. A health care provider or facility is
216 encouraged to provide copies of medical records or other records necessary to carry out the
217 purpose of this chapter free of charge.
218 (b) Notwithstanding the provisions of Subsection (2)(c), a health care facility that is a
219 state governmental entity shall provide medical records or other records necessary to carry out
220 the purposes of this chapter, free of charge.
221 (c) If a health care provider or health care facility does not provide medical records free
222 of charge under the provisions of Subsection (2)(a) or (b), the health care provider or facility
223 may charge a fee for the records that does not exceed the presumed reasonable charges
224 established for workers' compensation by administrative rule adopted by the Labor
225 Commission.
226 (3) Medical records held by a court related to orders of restriction under this chapter
227 shall be sealed by the district court at the conclusion of the case.
228 Section 5. Section 26-6b-4 is amended to read:
229 26-6b-4. Judicial review by the district court -- Required notice -- Representation
230 by counsel -- Conduct of proceedings.
231 (1) The provisions of this section and Sections 26-6b-5 through 26-6b-7 apply if a
232 department issues an order for restriction, and:
233 (a) an individual subject to the order of restriction refuses to consent to the order of
234 restriction;
235 (b) an individual subject to an order of restriction has withdrawn consent to an order of
236 restriction under the provisions of Subsection 26-6b-3.1 (1)(b)(iv)(B); or
237 (c) the department chooses to not attempt to obtain consent to an order of restriction
238 and files an action for judicial review of the order of restriction.
239 (2) (a) If the individual who is subject to an order of restriction is in custody, the
240 department, which is the petitioner, shall provide to the individual written notice of the petition
241 for judicial review of the order of restriction and hearings held pursuant to Sections 26-6b-5
242 through 26-6b-7 as soon as practicable, and shall send the notice to the legal guardian, legal
243 counsel for the parties involved, and any other persons and immediate adult family members
244 whom the individual or the district court designates. The notice shall advise these persons that

245 a hearing may be held within the time provided by this chapter.
246 (b) If the individual has refused to permit release of information necessary for the
247 provision of notice under this Subsection (2), the extent of notice shall be determined by the
248 district court.
249 (c) Notwithstanding the notice requirement in Subsection (2)(a), if the court determines
250 that written notice to each individual in a group of individuals subject to an order of restriction
251 is not practical considering the circumstances of the threat to public health, the court may order
252 the department to provide notice to the individual or group of individuals in a manner
253 determined by the court.
254 (3) (a) If the individual who is subject to an order of restriction is in custody, he shall
255 be afforded an opportunity to be represented by counsel. If neither the individual nor others
256 provide for counsel, the district court shall appoint counsel and allow counsel sufficient time to
257 consult with the individual prior to the hearing. If the individual is indigent, the payment of
258 reasonable [attorneys'] attorney fees for counsel, as determined by the district court, shall be
259 made by the county in which the individual resides or was found.
260 (b) The [individual, the petitioner, and all other persons to whom notice is required to
261 be given shall be afforded an opportunity to] parties may appear at the hearings, to testify, and
262 to present and cross-examine witnesses. The district court may, in its discretion, receive the
263 testimony of any other individual.
264 (c) The district court may allow a waiver of the individual's right to appear only for
265 good cause shown, and that cause shall be made a part of the court record.
266 (d) The district court may order that the individual participate in the hearing by
267 telephonic or other electronic means if the individual's condition poses a health threat to those
268 who physically attend the hearing or to others if the individual is transported to the court.
269 (4) The district court may, in its discretion, order that the individual be moved to a
270 more appropriate treatment, quarantine, or isolation facility outside of its jurisdiction, and may
271 transfer the proceedings to any other district court within this state where venue is proper,
272 provided that the transfer will not be adverse to the legal interests of the individual.
273 (5) All persons to whom notice is required to be given may attend the hearings. The
274 district court may exclude from the hearing all persons not necessary for the conduct of the
275 proceedings.

276 (6) All hearings shall be conducted in as informal a manner as may be consistent with
277 orderly procedure, and in a physical setting that is not likely to have a harmful effect on the
278 health of the individual or others required to participate in the hearing.
279 (7) The district court shall receive all relevant and material evidence which is offered,
280 subject to Utah Rules of Evidence.
281 (8) The district court may order law enforcement to assist the petitioner in locating the
282 individuals subject to restriction and enforcing the order of restriction.
283 Section 6. Section 26-6b-5 is amended to read:
284 26-6b-5. Petition for judicial review of order of restriction -- Court-ordered
285 examination period.
286 (1) (a) A department may petition for a judicial review of the department's order of
287 restriction for an individual or group of individuals who are subject to restriction by filing a
288 written petition with the district court of the county in which the individual or group of
289 individuals reside or are located.
290 (b) (i) The county attorney for the county where the individual or group of individuals
291 reside or are located shall represent the local health department in any proceedings under this
292 chapter.
293 (ii) The Office of the Attorney General shall represent the department when the
294 petitioner is the Department of Health in any proceedings under this chapter.
295 (2) The [application] petition under Subsection (1) shall be accompanied by:
296 (a) written affidavit of the department stating:
297 (i) a belief the individual or group of individuals are subject to restriction;
298 (ii) a belief that the individual or group of individuals who are subject to restriction are
299 likely to fail to submit to examination, treatment, quarantine, or isolation if not immediately
300 restrained;
301 (iii) this failure would pose a threat to the public health; and
302 (iv) the personal knowledge of the individual's or group of individuals' condition or the
303 circumstances that lead to that belief; and
304 (b) a written statement by a licensed physician indicating the physician finds the
305 individual or group of individuals are subject to restriction.
306 (3) The court shall issue an [examination] order of restriction requiring the individual

307 or group of individuals to submit to involuntary restriction to protect the public health if the
308 district court finds:
309 (a) there is a reasonable basis to believe that the individual's or group of individuals'
310 condition requires involuntary examination, quarantine, treatment, or isolation pending
311 examination and hearing; or
312 (b) the individual or group of individuals have refused to submit to examination by a
313 health professional as directed by the department or to voluntarily submit to examination,
314 treatment, quarantine, or isolation.
315 (4) If the individual or group of individuals who are subject to restriction are not in
316 custody, the court may make its determination and issue its [examination] order of restriction
317 in an ex parte hearing.
318 (5) At least 24 hours prior to the hearing required by Section 26-6b-6 , the department
319 which is the petitioner, shall report to the court, in writing, the opinion of qualified health care
320 providers:
321 (a) regarding whether the individual or group of individuals are infected by or
322 contaminated with:
323 (i) [are afflicted with an infectious] a communicable or possible communicable disease
324 that [is] poses a threat to [the] public health;
325 (ii) [are contaminated with a chemical or biological] an infectious agent or possibly
326 infectious agent that [is] poses a threat to [the] public health; [or]
327 (iii) [are in a condition, the exposure to which] a chemical or biological agent that
328 poses a threat to public health; or
329 (iv) a condition that poses a threat to public health;
330 (b) that despite the exercise of reasonable diligence, the diagnostic studies have not
331 been completed;
332 (c) whether the individual or group of individuals have agreed to voluntarily comply
333 with necessary examination, treatment, quarantine, or isolation; and
334 (d) whether the petitioner believes the individual or group of individuals will comply
335 without court proceedings.
336 Section 7. Section 26-6b-6 is amended to read:
337 26-6b-6. Court determination for an order of restriction after examination

338 period.
339 (1) The district court shall set a hearing regarding the involuntary order of restriction of
340 an individual or group of individuals, to be held within ten business days of the issuance of its
341 [examination] order of restriction issued pursuant to Section 26-6b-5 , unless the petitioner
342 informs the district court prior to this hearing that the individual or group of individuals:
343 (a) are not subject to restriction; or
344 (b) have stipulated to the issuance of an order of restriction.
345 [(2) (a) If the individual or group of individuals are not subject to restriction, the court
346 may, without taking any further action, terminate the proceedings and dismiss the petition.]
347 [(b)] (2) If the individual or an individual in a group of individuals has stipulated to the
348 issuance of an order of restriction, the court may issue an order as provided in Subsection (6)
349 for those individuals without further hearing.
350 (3) (a) If the examination report required in Section 26-6b-5 proves the individual or
351 group of individuals are not subject to restriction, the court may without further hearing
352 terminate the proceedings and dismiss the petition.
353 (b) The court may, after a hearing at which the individual or group of individuals are
354 present in person or by telephonic or other electronic means and have had the opportunity to be
355 represented by counsel, extend its [examination] order of restriction for a reasonable period,
356 not to exceed 90 days, if the court has reason to believe the individual or group of individuals
357 are infected by or contaminated with:
358 (i) [are contaminated with a chemical or biological agent] a communicable or possibly
359 communicable disease that [is] poses a threat to [the] public health; [or]
360 (ii) an infectious agent or possibly infectious agent that poses a threat to public health;
361 (iii) a chemical or biological agent that poses a threat to public health; or
362 [(ii) are in] (iv) a condition[, the exposure to which] that poses a threat to public
363 health, but, despite the exercise of reasonable diligence the diagnostic studies have not been
364 completed.
365 (4) The petitioner shall, at the time of the hearing, provide the district court with the
366 following items, to the extent that they have been issued or are otherwise available:
367 (a) the order of restriction issued by the petitioner;
368 (b) admission notes if any individual was hospitalized; and

369 (c) medical records pertaining to the current order of restriction.
370 (5) The information provided to the court under Subsection (4) shall also be provided
371 to the individual's or group of individual's counsel at the time of the hearing, and at any time
372 prior to the hearing upon request of counsel.
373 (6) (a) The district court shall order the individual and each individual in a group of
374 individuals to submit to the order of restriction if, upon completion of the hearing and
375 consideration of the record, it finds by clear and convincing evidence that:
376 (i) the individual or group of individuals are infected with a communicable disease or
377 infectious agent, are contaminated with a chemical or biological agent, or are in a condition[,
378 the exposure to which] that poses a threat to public health[, or are in a condition which if
379 treatment is not completed the individual or group of individuals will pose a threat to public
380 health];
381 (ii) there is no appropriate and less restrictive alternative to a court order of
382 examination, quarantine, isolation, and treatment, or any of them;