First Substitute H.B. 138

Representative Greg J. Curtis proposes to substitute the following bill:

1 PUBLIC ATTORNEYS ACT AMENDMENTS
2 2000 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Greg J. Curtis
5 AN ACT RELATING TO STATE AFFAIRS; REVISING THE GENERAL DUTIES OF THE
6 ATTORNEY GENERAL; OUTLINING THE RELATIONSHIP OF THE PUBLIC CLIENT AND
7 THE ATTORNEY GENERAL; OUTLINING PROVISIONS FOR THE GOVERNOR TO
8 APPEAR IN A CIVIL LEGAL ACTION; REPEALING THE PUBLIC ATTORNEYS ACT; AND
9 PROVIDING EFFECTIVE DATES.
10 This act affects sections of Utah Code Annotated 1953 as follows:
11 AMENDS:
12 67-5-1 (Effective 01/01/01), as last amended by Chapters 371 and 372, Laws of Utah 1999
13 67-5-1 (Superseded 01/01/01), as last amended by Chapter 371, Laws of Utah 1999
14 ENACTS:
15 67-5-17, Utah Code Annotated 1953
16 REPEALS:
17 67-23-101 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
18 67-23-102 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
19 67-23-103 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
20 67-23-201 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
21 67-23-202 (Effective 01/01/01), as enacted by Chapter 372, Laws of Utah 1999
22 Be it enacted by the Legislature of the state of Utah:
23 Section 1. Section 67-5-1 (Effective 01/01/01) is amended to read:
24 67-5-1 (Effective 01/01/01). General duties.
25 The attorney general shall[, subject to Title 67, Chapter 23, Public Attorneys Act]:

26 (1) perform all duties in a manner consistent with the attorney-client relationship under
27 Section 67-5-17 ;
28 [(1)] (2) except as provided in Sections 10-3-928 and 17-18-1 , attend the Supreme Court
29 and the Court of Appeals of this state, and all courts of the United States, and[, as attorney,]
30 prosecute or defend all causes to which the state, or any officer, board, or commission of the state
31 in an official capacity is a party; and take charge, as attorney, [represent the state in] of all civil
32 legal matters in which the state is interested;
33 [(2) with approval of the client:]
34 [(a) initiate legal proceedings in a court of competent jurisdiction on behalf of the state,
35 or any officer, board, commission, agency, or instrumentality of the state for the purpose of
36 opposing or challenging federal laws, regulations, or court orders and their impact on or
37 applicability to the state; and]
38 [(b) as the budget permits, retain outside legal counsel with appropriate expertise to
39 represent the state in the legal proceedings;]
40 (3) after judgment on any cause referred to in Subsection (1), direct[, with approval of the
41 client,] the issuance of process as necessary to execute the judgment;
42 (4) account for, and pay over to the proper officer, all moneys that come into the attorney
43 general's possession that belong to the state;
44 (5) keep a file of all cases in which the attorney general is required to appear, including
45 any documents and papers showing the court in which the cases have been instituted and tried, and
46 whether they are civil or criminal, and:
47 (a) if civil, the nature of the demand, the stage of proceedings, and when prosecuted to
48 judgment, a memorandum of the judgment and of any process issued whether satisfied, and if not
49 satisfied, the return of the sheriff;
50 (b) if criminal, the nature of the crime, the mode of prosecution, the stage of proceedings,
51 and when prosecuted to sentence, a memorandum of the sentence and of the execution, if the
52 sentence has been executed, if not executed, of the reason of the delay or prevention; and
53 (c) deliver this information to the attorney general's successor in office;
54 (6) exercise supervisory powers over the district and county attorneys of the state in all
55 matters pertaining to the duties of their offices, and from time to time require of them reports of
56 the condition of public business entrusted to their charge;

57 (7) give the attorney general's opinion in writing and without fee to the Legislature or
58 either house, and to any state officer, board, or commission, and to any county attorney or district
59 attorney, when required, upon any question of law relating to their respective offices;
60 (8) when required by the public service or directed by the governor, assist any district or
61 county attorney in the discharge of his duties;
62 (9) purchase in the name of the state, under the direction of the state Board of Examiners,
63 any property offered for sale under execution issued upon judgments in favor of or for the use of
64 the state, and enter satisfaction in whole or in part of the judgments as the consideration of the
65 purchases;
66 (10) when the property of a judgment debtor in any judgment mentioned in Subsection (9)
67 has been sold under a prior judgment, or is subject to any judgment, lien, or encumbrance taking
68 precedence of the judgment in favor of the state, redeem the property, under the direction of the
69 state Board of Examiners, from the prior judgment, lien, or encumbrance, and pay all money
70 necessary for the redemption, upon the order of the state Board of Examiners, out of any money
71 appropriated for these purposes;
72 (11) when in his opinion it is necessary for the collection or enforcement of any judgment,
73 institute and prosecute on behalf of the state any action or proceeding necessary to set aside and
74 annul all conveyances fraudulently made by the judgment debtors, and pay the cost necessary to
75 the prosecution, when allowed by the state Board of Examiners, out of any money not otherwise
76 appropriated;
77 (12) discharge the duties of a member of all official boards of which the attorney general
78 is or may be made a member by the Utah Constitution or by the laws of the state, and other duties
79 prescribed by law;
80 (13) institute and prosecute proper proceedings in any court of the state or of the United
81 States, to restrain and enjoin corporations organized under the laws of this or any other state or
82 territory from acting illegally or in excess of their corporate powers or contrary to public policy,
83 and in proper cases forfeit their corporate franchises, dissolve the corporations, and wind up their
84 affairs;
85 (14) institute investigations for the recovery of all real or personal property that may have
86 escheated or should escheat to the state, and for that purpose, subpoena any persons before any of
87 the district courts to answer inquiries and render accounts concerning any property, examine all

88 books and papers of any corporations, and when any real or personal property is discovered that
89 should escheat to the state, institute suit in the district court of the county where the property is
90 situated for its recovery, and escheat that property to the state;
91 (15) administer the Children's Justice Center as a program to be implemented in various
92 counties pursuant to Sections 67-5b-101 through 67-5b-107 ; and
93 (16) assist the Constitutional Defense Council as provided in Title 63C, Chapter 4,
94 Constitutional Defense Council.
95 Section 2. Section 67-5-1 (Superseded 01/01/01) is amended to read:
96 67-5-1 (Superseded 01/01/01). General duties.
97 The attorney general shall:
98 (1) perform all duties in a manner consistent with the attorney-client relationship under
99 Section 67-5-17 ;
100 [(1)] (2) except as provided in Sections 10-3-928 and 17-18-1 , attend the Supreme Court
101 and the Court of Appeals of this state, and all courts of the United States, and prosecute or defend
102 all causes to which the state, or any officer, board, or commission of the state in an official
103 capacity is a party; and take charge, as attorney, of all civil legal matters in which the state is
104 interested;
105 [(2) when jointly agreed by the governor and the attorney general:]
106 [(a) initiate legal proceedings in a court of competent jurisdiction on behalf of the state,
107 or any officer, board, commission, agency, or instrumentality of the state for the purpose of
108 opposing or challenging federal laws, regulations, or court orders and their impact on or
109 applicability to the state; and]
110 [(b) as the budget permits, retain outside legal counsel with appropriate expertise to
111 represent the state in the legal proceedings;]
112 (3) after judgment on any cause referred to in Subsection (1), direct the issuance of process
113 as necessary to execute the judgment;
114 (4) account for, and pay over to the proper officer, all moneys [which] that come into [his]
115 the attorney general's possession[,] that belong to the state;
116 (5) keep a file of all cases in which [he] the attorney general is required to appear,
117 including any documents and papers showing the court in which the cases have been instituted and
118 tried, and whether they are civil or criminal, and:

119 (a) if civil, the nature of the demand, the stage of proceedings, and when prosecuted to
120 judgment, a memorandum of the judgment and of any process issued whether satisfied, and if not
121 satisfied, the return of the sheriff;
122 (b) if criminal, the nature of the crime, the mode of prosecution, the stage of proceedings,
123 and when prosecuted to sentence, a memorandum of the sentence and of the execution, if the
124 sentence has been executed, if not executed, of the reason of the delay or prevention; and
125 (c) deliver this information to [his] the attorney general's successor in office;
126 (6) exercise supervisory powers over the district and county attorneys of the state in all
127 matters pertaining to the duties of their offices, and from time to time require of them reports of
128 the condition of public business entrusted to their charge;
129 (7) give [his] the attorney general's opinion in writing and without fee to the Legislature
130 or either house, and to any state officer, board, or commission, and to any county attorney or
131 district attorney, when required, upon any question of law relating to their respective offices;
132 (8) when required by the public service or directed by the governor, assist any district or
133 county attorney in the discharge of his duties;
134 (9) purchase in the name of the state, under the direction of the state Board of Examiners,
135 any property offered for sale under execution issued upon judgments in favor of or for the use of
136 the state, and enter satisfaction in whole or in part of the judgments as the consideration of the
137 purchases;
138 (10) when the property of a judgment debtor in any judgment mentioned in Subsection (9)
139 has been sold under a prior judgment, or is subject to any judgment, lien, or encumbrance taking
140 precedence of the judgment in favor of the state, redeem the property, under the direction of the
141 state Board of Examiners, from the prior judgment, lien, or encumbrance, and pay all money
142 necessary for the redemption, upon the order of the state Board of Examiners, out of any money
143 appropriated for these purposes;
144 (11) when in his opinion it is necessary for the collection or enforcement of any judgment,
145 institute and prosecute on behalf of the state any action or proceeding necessary to set aside and
146 annul all conveyances fraudulently made by the judgment debtors, and pay the cost necessary to
147 the prosecution, when allowed by the state Board of Examiners, out of any money not otherwise
148 appropriated;
149 (12) discharge the duties of a member of all official boards of which [he] the attorney

150 general is or may be made a member by the Utah Constitution or by the laws of the state, and other
151 duties prescribed by law;
152 (13) institute and prosecute proper proceedings in any court of the state or of the United
153 States, to restrain and enjoin corporations organized under the laws of this or any other state or
154 territory from acting illegally or in excess of their corporate powers or contrary to public policy,
155 and in proper cases forfeit their corporate franchises, dissolve the corporations, and wind up their
156 affairs;
157 (14) institute investigations for the recovery of all real or personal property that may have
158 escheated or should escheat to the state, and for that purpose [he may cite], subpoena any persons
159 before any of the district courts to answer inquiries and render accounts concerning any property,
160 [may] examine all books and papers of any corporations, and when any real or personal property
161 is discovered that should escheat to the state, [the attorney general shall] institute suit in the district
162 court of the county where the property is situated for its recovery, and escheat that property to the
163 state;
164 (15) administer the Children's Justice Center as a program to be implemented in various
165 counties pursuant to Sections 67-5b-101 through 67-5b-107 ; and
166 (16) assist the Constitutional Defense Council as provided in Title 63C, Chapter 4,
167 Constitutional Defense Council.
168 Section 3. Section 67-5-17 is enacted to read:
169 67-5-17. Attorney-client relationship.
170 (1) When representing the governor, lieutenant governor, auditor, or treasurer or when
171 representing an agency under the supervision of any of those officers, the attorney general shall:
172 (a) keep the officer or the officer's designee reasonably informed about the status of a
173 matter and promptly comply with reasonable requests for information;
174 (b) explain a matter to the extent reasonably necessary to enable the officer or the officer's
175 designee to make informed decisions regarding the representation;
176 (c) abide by the officer's or designee's decisions concerning the objectives of the
177 representation and consult with the officer or designee as to the means by which they are to be
178 pursued; and
179 (d) jointly by agreement, establish protocols with the officer to facilitate communications
180 and working relationships with the officer or agencies under the officer's supervision.

181 (2) Nothing in Subsection (1) modifies or supercedes any independent legal authority
182 granted specifically by statute to the attorney general.
183 (3) When the attorney general institutes or maintains a civil enforcement action on behalf
184 of the state of Utah that is not covered under Subsection (1), the attorney general shall:
185 (a) fully advise the governor, as the officer in whom the executive authority of the state
186 is vested, before instituting the action, entering into a settlement or consent decree, or taking an
187 appeal; and
188 (b) keep the governor reasonably informed about the status of the matter and promptly
189 comply with reasonable requests for information.
190 (4) In a civil action not covered under Subsection (1) or (3), the attorney general shall:
191 (a) keep the governor reasonably informed about the status of the matter and promptly
192 comply with reasonable requests for information;
193 (b) explain the matter to the extent reasonably necessary to enable the governor to make
194 informed decisions regarding the representation; and
195 (c) abide by the governor's decisions concerning the objectives of the representation and
196 consult with the governor as to the means by which they are to be pursued.
197 (5) The governor may appear in any civil legal action involving the state and appoint legal
198 counsel to advise or appear on behalf of the governor. The court shall allow the governor's
199 appearance.
200 Section 4. Repealer.
201 This act repeals:
202 Section 67-23-101 (Effective 01/01/01), Title.
203 Section 67-23-102 (Effective 01/01/01), Definitions.
204 Section 67-23-103 (Effective 01/01/01), Scope of chapter.
205 Section 67-23-201 (Effective 01/01/01), Public attorneys -- Clients -- Responsibilities
206 to clients.
207 Section 67-23-202 (Effective 01/01/01), Public attorneys -- Responsibilities under Rules
208 of Professional Conduct.
209 Section 5. Effective date.
210 (1) Section 2, Section 67-5-1 (Superseded 01/01/01); and Section 67-5-17 take effect on
211 May 1, 2000.

212 (2) Section 1, Section 67-5-1 (Effective 01/01/01) takes effect January 1, 2001.
213 (3) The repeal of Sections 67-23-101 , 67-23-102 , 67-23-103 , 67-23-201 , and 67-23-202
214 takes effect on January 1, 2001.




Legislative Review Note
as of 2-9-00 5:58 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel