H.B. 148 Enrolled

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 77-38-11, as last amended by Laws of Utah 1996, Chapter 79
23 77-38-12, as last amended by Laws of Utah 1995, Chapter 352
24
25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 77-37-5 is amended to read:
27 77-37-5. Remedies -- Victims' Rights Committee.
28 (1) In each judicial district, the presiding district court judge shall appoint a person
29 who shall establish and chair a victims' rights committee consisting of:

30 (a) a county attorney or district attorney;
31 (b) a sheriff;
32 (c) a corrections field services administrator;
33 (d) an appointed victim advocate;
34 (e) a municipal attorney;
35 (f) a municipal chief of police; and
36 (g) other representatives as appropriate.
37 (2) The committee shall meet at least semiannually to review progress and problems
38 related to this chapter, Title 77, Chapter 38, Rights of Crime Victims Act, and Utah
39 Constitution Article I, Section 28. Victims and other interested parties may submit matters of
40 concern to the victims' rights committee. The committee may hold a hearing open to the
41 public on any appropriate matter of concern and may publish its findings. These matters shall
42 also be considered at the meetings of the victims' rights committee. The committee shall
43 forward minutes of all meetings to the Commission on Criminal and Juvenile Justice and the
44 Office of Crime Victim Reparations for review and other appropriate action.
45 (3) If a victims' rights committee is unable to resolve a complaint, it may refer the
46 complaint to the Utah Council on Victims of Crime, established in Section 63M-7-601 , for
47 further consideration.
48 (4) The Office of Crime Victim Reparations shall provide materials to local law
49 enforcement to inform every victim of a sexual offense of the right to request testing of the
50 convicted sexual offender and of the victim as provided in Section 76-5-502 .
51 (5) (a) If a person acting under color of state law willfully or wantonly fails to perform
52 duties so that the rights in this chapter are not provided, an action for injunctive relief may be
53 brought against the individual and the government entity that employs the individual.
54 (b) For all other violations, if the committee finds a violation of a victim's right, it
55 shall refer the matter to the appropriate court for further proceedings consistent with
56 Subsection 77-38-11 (2).
57 (c) The failure to provide the rights in this chapter or Title 77, Chapter 38, Rights of

58 Crime Victims Act, does not constitute cause for a judgment against the state or any
59 government entity, or any individual employed by the state or any government entity, for
60 monetary damages, [attorney's] attorney fees, or the costs of exercising any rights under this
61 chapter.
62 (6) The person accused of and subject to prosecution for the crime or the act which
63 would be a crime if committed by a competent adult, has no standing to make a claim
64 concerning any violation of the provisions of this chapter.
65 Section 2. Section 77-38-11 is amended to read:
66 77-38-11. Enforcement -- Appellate Review -- No right to money damages.
67 (1) If a person acting under color of state law willfully or wantonly fails to perform
68 duties so that the rights in this chapter are not provided, an action for injunctive relief,
69 including prospective injunctive relief, may be brought against the individual and the
70 governmental entity that employs the individual.
71 (2) [(a)] The victim of a crime or representative of a victim of a crime, including any
72 Victims' Rights Committee as defined in Section 77-37-5 may:
73 [(i)] (a) bring an action for declaratory relief or for a writ of mandamus defining or
74 enforcing the rights of victims and the obligations of government entities under this chapter;
75 [and]
76 [(ii)] (b) petition to file an amicus brief in any court in any case affecting crime
77 victims[.]; and
78 (c) after giving notice to the prosecution and the defense, seek an appropriate remedy
79 for a violation of a victim's right from the judge assigned to the case involving the issue as
80 provided in Section 77-38-11 .
81 [(b) Adverse rulings on these actions or on a motion or request brought by a victim of
82 a crime or a representative of a victim of a crime may be appealed under the rules governing
83 appellate actions, provided that no appeal shall constitute grounds for delaying any criminal or
84 juvenile proceeding.]
85 [(c) An appellate court shall review all such properly presented issues, including issues

86 that are capable of repetition but would otherwise evade review.]
87 (3) (a) Upon a showing that the victim has not unduly delayed in seeking to protect the
88 victim's right, and after hearing from the prosecution and the defense, the judge shall
89 determine whether a right of the victim has been violated.
90 (b) If the judge determines that a victim's right has been violated, the judge shall
91 proceed to determine the appropriate remedy for the violation of the victim's right by hearing
92 from the victim and the parties, considering all factors relevant to the issue, and then awarding
93 an appropriate remedy to the victim. The court shall reconsider any judicial decision or
94 judgment affected by a violation of the victim's right and determine whether, upon affording
95 the victim the right and further hearing from the prosecution and the defense, the decision or
96 judgment would have been different. If the court's decision or judgment would have been
97 different, the court shall enter the new different decision or judgment as the appropriate
98 remedy. If necessary to protect the victim's right, the new decision or judgment shall be
99 entered nunc pro tunc to the time the first decision or judgment was reached. In no event shall
100 the appropriate remedy be a new trial, damages, attorney fees, or costs.
101 (c) The appropriate remedy shall include only actions necessary to provide the victim
102 the right to which the victim was entitled and may include reopening previously held
103 proceedings. Subject to Subsection (3)(d), the court may reopen a sentence or a previously
104 entered guilty or no contest plea only if doing so would not preclude continued prosecution or
105 sentencing the defendant and would not otherwise permit the defendant to escape justice. Any
106 remedy shall be tailored to provide the victim an appropriate remedy without violating any
107 constitutional right of the defendant.
108 (d) If the court sets aside a previously entered plea of guilty or no contest, and
109 thereafter continued prosecution of the charge is held to be prevented by the defendant's
110 having been previously put in jeopardy, the order setting aside the plea is void and the plea is
111 reinstated as of the date of its original entry.
112 (e) The court may not award as a remedy the dismissal of any criminal charge.
113 (f) The court may not award any remedy if the proceeding that the victim is

114 challenging occurred more than 90 days before the victim filed an action alleging the violation
115 of the right.
116 [(3)] (4) The failure to provide the rights in this chapter or Title 77, Chapter 37,
117 [Victims] Victims' Rights, shall not constitute cause for a judgment against the state or any
118 government entity, or any individual employed by the state or any government entity, for
119 monetary damages, [attorneys'] attorney fees, or the costs of exercising any rights under this
120 chapter.
121 Section 3. Section 77-38-12 is amended to read:
122 77-38-12. Construction of this chapter -- No right to set aside conviction,
123 adjudication, admission, or plea -- Severability clause.
124 (1) All of the provisions contained in this chapter shall be construed to assist the
125 victims of crime.
126 (2) This chapter may not be construed as creating a basis for dismissing any criminal
127 charge or delinquency petition, vacating any adjudication or conviction, admission or plea of
128 guilty or no contest, or for a defendant to obtain appellate, habeas corpus, [except in juvenile
129 cases,] or other relief from a judgment in any criminal or delinquency case.
130 (3) This chapter may not be construed as creating any right of a victim to appointed
131 counsel at state expense.
132 (4) All of the rights contained in this chapter shall be construed to conform to the
133 Constitution of the United States.
134 (5) (a) In the event that any portion of this chapter is found to violate the Constitution
135 of the United States, the remaining provisions of this chapter shall continue to operate in full
136 force and effect.
137 (b) In the event that a particular application of any portion of this chapter is found to
138 violate the Constitution of the United States, all other applications shall continue to operate in
139 full force and effect.
140 (6) The enumeration of certain rights for crime victims in this chapter shall not be
141 construed to deny or disparage other rights granted by the Utah Constitution or the Legislature

142 or retained by victims of crimes.