Fourth Substitute H.B. 148

This document includes House Floor Amendments incorporated into the bill on Tue, Mar 3, 2009 at 1:45 PM by jeyring. -->

Representative R. Curt Webb proposes the following substitute bill:

1 VICTIM RIGHTS AMENDMENTS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: R. Curt Webb
5 Senate Sponsor: Peter C. Knudson
6
7 LONG TITLE
8 General Description:
9 This bill empowers the trial court judge hearing a criminal case to give the victim an
10 appropriate remedy for a violation of a victim's rights.
11 Highlighted Provisions:
12 This bill:
13 . empowers the trial court judge hearing a criminal case to give the victim an
14 appropriate remedy for a violation of a victim's rights.
15 Monies Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 None
19 Utah Code Sections Affected:
20 AMENDS:
21 77-37-5, as last amended by Laws of Utah 2008, Chapter 382
22 77-38-2, as last amended by Laws of Utah 1997, Chapter 103
23 77-38-11, as last amended by Laws of Utah 1996, Chapter 79
24 77-38-12, as last amended by Laws of Utah 1995, Chapter 352
25

26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 77-37-5 is amended to read:
28 77-37-5. Remedies -- Victims' Rights Committee.
29 (1) In each judicial district, the presiding district court judge shall appoint a person
30 who shall establish and chair a victims' rights committee consisting of:
31 (a) a county attorney or district attorney;
32 (b) a sheriff;
33 (c) a corrections field services administrator;
34 (d) an appointed victim advocate;
35 (e) a municipal attorney;
36 (f) a municipal chief of police; and
37 (g) other representatives as appropriate.
38 (2) The committee shall meet at least semiannually to review progress and problems
39 related to this chapter, Title 77, Chapter 38, Rights of Crime Victims Act, and Utah
40 Constitution Article I, Section 28. Victims and other interested parties may submit matters of
41 concern to the victims' rights committee. The committee may hold a hearing open to the public
42 on any appropriate matter of concern and may publish its findings. These matters shall also be
43 considered at the meetings of the victims' rights committee. The committee shall forward
44 minutes of all meetings to the Commission on Criminal and Juvenile Justice and the Office of
45 Crime Victim Reparations for review and other appropriate action.
46 (3) If a victims' rights committee is unable to resolve a complaint, it may refer the
47 complaint to the Utah Council on Victims of Crime, established in Section 63M-7-601 , for
48 further consideration.
49 (4) The Office of Crime Victim Reparations shall provide materials to local law
50 enforcement to inform every victim of a sexual offense of the right to request testing of the
51 convicted sexual offender and of the victim as provided in Section 76-5-502 .
52 (5) (a) If a person acting under color of state law willfully or wantonly fails to perform
53 duties so that the rights in this chapter are not provided, an action for injunctive relief may be
54 brought against the individual and the government entity that employs the individual.
55 (b) For all other violations, if the committee finds a violation of a victim's right, it shall
56 refer the matter to the appropriate court for further proceedings consistent with Subsection

57 77-38-11 (2).
58 (c) The failure to provide the rights in this chapter or Title 77, Chapter 38, Rights of
59 Crime Victims Act, does not constitute cause for a judgment against the state or any
60 government entity, or any individual employed by the state or any government entity, for
61 monetary damages, [attorney's] attorney fees, or the costs of exercising any rights under this
62 chapter.
63 (6) The person accused of and subject to prosecution for the crime or the act which
64 would be a crime if committed by a competent adult, has no standing to make a claim
65 concerning any violation of the provisions of this chapter.
66 Section 2. Section 77-38-2 is amended to read:
67 77-38-2. Definitions.
68 For the purposes of this chapter and the Utah Constitution:
69 (1) "Abuse" means treating the crime victim in a manner so as to injure, damage, or
70 disparage.
71 (2) "Dignity" means treating the crime victim with worthiness, honor, and esteem.
72 (3) "Fairness" means treating the crime victim reasonably, even-handedly, and
73 impartially.
74 (4) "Harassment" means treating the crime victim in a persistently annoying manner.
75 (5) "Important criminal justice hearings" or "important juvenile justice hearings" means
76 the following proceedings in felony criminal cases or cases involving a minor's conduct which
77 would be a felony if committed by an adult:
78 (a) any preliminary hearing to determine probable cause;
79 (b) any court arraignment where practical;
80 (c) any court proceeding involving the disposition of charges against a defendant or
81 minor or the delay of a previously scheduled trial date but not including any unanticipated
82 proceeding to take an admission or a plea of guilty as charged to all charges previously filed or
83 any plea taken at an initial appearance;
84 (d) any court proceeding to determine whether to release a defendant or minor and, if
85 so, under what conditions release may occur, excluding any such release determination made at
86 an initial appearance;
87 (e) any criminal or delinquency trial, excluding any actions at the trial that a court

88 might take in camera, in chambers, or at a sidebar conference;
89 (f) any court proceeding to determine the disposition of a minor or sentence, fine, or
90 restitution of a defendant or to modify any disposition of a minor or sentence, fine, or
91 restitution of a defendant; and
92 (g) any public hearing concerning whether to grant a defendant or minor parole or other
93 form of discretionary release from confinement.
94 (6) "Reliable information" means information worthy of confidence, including any
95 information whose use at sentencing is permitted by the United States Constitution.
96 (7) "Representative of a victim" means a person who is designated by the victim or
97 designated by the court and who represents the victim in the best interests of the victim.
98 (8) "Respect" means treating the crime victim with regard and value.
99 (9) (a) "Victim of a crime" means any natural person against whom the charged crime
100 or conduct is alleged to have been perpetrated or attempted by the defendant or minor
101 personally or as a party to the offense or conduct or, in the discretion of the court, against
102 whom a related crime or act is alleged to have been perpetrated or attempted, unless the natural
103 person is the accused or appears to be accountable or otherwise criminally responsible for or
104 criminally involved in the crime or conduct or a crime or act arising from the same conduct,
105 criminal episode, or plan as the crime is defined under the laws of this state.
106 (b) For purposes of the right to be present, "victim of a crime" does not mean any
107 person who is in custody as a pretrial detainee, as a prisoner following conviction for an
108 offense, or as a juvenile who has committed an act that would be an offense if committed by an
109 adult, or who is in custody for mental or psychological treatment.
110 (c) For purposes of the right to be present and heard at a public hearing as provided in
111 Subsection 77-38-2 (5)(g) and the right to notice as provided in Subsection 77-38-3 (7)(a),
112 "victim of a crime" includes any victim originally named in the allegation of criminal conduct
113 who is not a victim of the offense to which the defendant entered a negotiated plea of guilty.
114 Section 3. Section 77-38-11 is amended to read:
115 77-38-11. Enforcement -- Appellate Review -- No right to money damages.
116 (1) If a person acting under color of state law willfully or wantonly fails to perform
117 duties so that the rights in this chapter are not provided, an action for injunctive relief,
118 including prospective injunctive relief, may be brought against the individual and the

119 governmental entity that employs the individual.
120 (2) [(a)] The victim of a crime or representative of a victim of a crime, including any
121 Victims' Rights Committee as defined in Section 77-37-5 may:
122 [(i)] (a) bring an action for declaratory relief or for a writ of mandamus defining or
123 enforcing the rights of victims and the obligations of government entities under this chapter;
124 [and]
125 [(ii)] (b) petition to file an amicus brief in any court in any case affecting crime
126 victims[.]; and
127 (c) after giving notice to the prosecution and the defense, seek an appropriate remedy
128 for a violation of a victim's right from the judge assigned to the case involving the issue as
129 provided in Section 77-38-11 .
130 [(b) Adverse rulings on these actions or on a motion or request brought by a victim of a
131 crime or a representative of a victim of a crime may be appealed under the rules governing
132 appellate actions, provided that no appeal shall constitute grounds for delaying any criminal or
133 juvenile proceeding.]
134 [(c) An appellate court shall review all such properly presented issues, including issues
135 that are capable of repetition but would otherwise evade review.]
136 (3) (a) Upon a showing that the victim has not unduly delayed in seeking to protect the
137 victim's right, and after hearing from the prosecution and the defense, the judge shall determine
138 whether a right of the victim has been violated.
139 (b) If the judge determines that a victim's right has been violated, the judge shall
140 proceed to determine the appropriate remedy for the violation of the victim's right by hearing
141 from the victim and the parties, considering all factors relevant to the issue, and then awarding
142 an appropriate remedy to the victim. The court shall reconsider any judicial decision or
143 judgment affected by a violation of the victim's right and determine whether, upon affording
144 the victim the right and further hearing from the prosecution and the defense, the decision or
145 judgment would have been different. If the court's decision or judgment would have been
146 different, the court shall enter the new different decision or judgment as the appropriate
147 remedy. If necessary to protect the victim's right, the new decision or judgment shall be
148 entered nunc pro tunc to the time the first decision or judgment was reached. In no event shall
149 the appropriate remedy be a new trial, damages, attorneys' fees, or costs.

150 (c) The appropriate remedy shall include only actions necessary to provide the victim
151 the right to which the victim was entitled and may include reopening previously held
152 proceedings. Subject to Subsection (3)(d), the court may reopen a sentence or a previously
153 entered guilty or no contest plea only if doing so would not preclude continued prosecution or
154 sentencing the defendant and would not otherwise permit the defendant to escape justice. Any
155 remedy shall be tailored to provide the victim an appropriate remedy without violating any
156 constitutional right of the defendant.
157 (d) If the court sets aside a previously entered plea of guilty or no contest, and
158 thereafter continued prosecution of the charge is held to be prevented by the defendant's having
159 been previously put in jeopardy, the order setting aside the plea is void and the plea is
160 reinstated as of the date of its original entry.
161 (e) The court may not award as a remedy the dismissal of any criminal charge.
162 (f) The court may not award any remedy if the proceeding that the victim is challenging
163 occurred more than H. [ six months ] 90 days .H before the victim filed an action alleging the
163a violation of the
164 right.
165 [(3)] (4) The failure to provide the rights in this chapter or Title 77, Chapter 37,
166 [Victims] Victims' Rights, shall not constitute cause for a judgment against the state or any
167 government entity, or any individual employed by the state or any government entity, for
168 monetary damages, [attorneys'] attorney fees, or the costs of exercising any rights under this
169 chapter.
170 Section 4. Section 77-38-12 is amended to read:
171 77-38-12. Construction of this chapter -- No right to set aside conviction,
172 adjudication, admission, or plea -- Severability clause.
173 (1) All of the provisions contained in this chapter shall be construed to assist the
174 victims of crime.
175 (2) This chapter may not be construed as creating a basis for dismissing any criminal
176 charge or delinquency petition, vacating any adjudication or conviction, admission or plea of
177 guilty or no contest, or for a defendant to obtain appellate, habeas corpus, [except in juvenile
178 cases,] or other relief from a judgment in any criminal or delinquency case.
179 (3) This chapter may not be construed as creating any right of a victim to appointed
180 counsel at state expense.

181 (4) All of the rights contained in this chapter shall be construed to conform to the
182 Constitution of the United States.
183 (5) (a) In the event that any portion of this chapter is found to violate the Constitution
184 of the United States, the remaining provisions of this chapter shall continue to operate in full
185 force and effect.
186 (b) In the event that a particular application of any portion of this chapter is found to
187 violate the Constitution of the United States, all other applications shall continue to operate in
188 full force and effect.
189 (6) The enumeration of certain rights for crime victims in this chapter shall not be
190 construed to deny or disparage other rights granted by the Utah Constitution or the Legislature
191 or retained by victims of crimes.