1     
JUDICIARY AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Lyle W. Hillyard

5     
House Sponsor: V. Lowry Snow

6     

7     LONG TITLE
8     General Description:
9          This bill makes amendments related to the judiciary.
10     Highlighted Provisions:
11          This bill:
12          ▸     provides that, in a legal action filed against a county, a district court judge of the
13     defendant county may transfer venue to any county contiguous to the defendant
14     county;
15          ▸     provides that a motion to transfer venue may be filed ex parte;
16          ▸     clarifies provisions regarding appointment of counsel in juvenile court delinquency
17     cases;
18          ▸     clarifies justice court jurisdiction;
19          ▸     removes a defendant's entitlement to a hearing de novo in the district court on a
20     finding of a plea in abeyance violation;
21          ▸     provides that a defendant is entitled to a hearing de novo in the district court on a
22     sentence following a finding of a plea in abeyance violation;
23          ▸     requires that a notice of appeal from a criminal case in justice court be filed within
24     28 days;
25          ▸     provides that a defendant is entitled to a hearing de novo in the district court on:
26               •     an order denying a motion to withdraw a plea if the plea is held in abeyance and
27     the motion to withdraw the plea is filed within 28 days of entry of the plea;
28               •     a post-sentence order fixing total or court ordered restitution; or
29               •     an order denying expungement;
30          ▸     provides that a prosecutor is entitled to a hearing de novo in the district court if:
31               •     an appeal is filed within 28 days of the court entering a certain judgment or
32     order; or
33               •     an appeal is filed within 28 days of the court entering an order for total
34     restitution at less than the crime victim requested, or an order granting an
35     expungement that was opposed by the prosecutor or victim;
36          ▸     removes the endorsement requirement for the number of days within which a
37     defendant is required to appear and defend a forcible detainer action included in a
38     summons; and
39          ▸     makes technical changes.
40     Money Appropriated in this Bill:
41          None
42     Other Special Clauses:
43          None
44     Utah Code Sections Affected:
45     AMENDS:
46          63G-7-502, as renumbered and amended by Laws of Utah 2008, Chapter 382
47          77-7-25, as renumbered and amended by Laws of Utah 2005, Chapter 2
48          78A-6-1111, as last amended by Laws of Utah 2015, Chapter 338
49          78A-7-106, as last amended by Laws of Utah 2012, Chapter 205
50          78A-7-118, as last amended by Laws of Utah 2015, Chapters 99 and 258
51          78B-2-213, as renumbered and amended by Laws of Utah 2008, Chapter 3
52          78B-6-807, as last amended by Laws of Utah 2008, Chapter 121 and renumbered and
53     amended by Laws of Utah 2008, Chapter 3
54     

55     Be it enacted by the Legislature of the state of Utah:
56          Section 1. Section 63G-7-502 is amended to read:
57          63G-7-502. Venue of actions.
58          (1) Actions against the state may be brought in the county in which the claim arose or
59     in Salt Lake County.
60          (2) (a) Actions against a county may be brought in the county in which the claim arose,
61     or in the defendant county[, or, upon leave granted by a].
62          (b) (i) A district court judge of the defendant county[, in] may transfer venue to any
63     county contiguous to the defendant county.
64          [(b) Leave] (ii) A motion to transfer may be [granted] filed ex parte.
65          (3) Actions against all other political subdivisions, including cities and towns, shall be
66     brought in the county in which the political subdivision is located or in the county in which the
67     claim arose.
68          Section 2. Section 77-7-25 is amended to read:
69          77-7-25. Keeping of records -- Making and forwarding of abstract upon
70     conviction or forfeiture of bail -- Form and contents -- Official misconduct.
71          (1) A magistrate or judge of a court shall keep a full record of each case in which a
72     person is charged with:
73          (a) a violation of this chapter; or
74          (b) any other law regulating the operation of a motor vehicle on the highway.
75          (2) (a) Within [10] five days after the conviction or forfeiture of bail of a person on a
76     charge of violating a provision of this chapter or other law regulating the operation of a motor
77     vehicle on the highway, the magistrate of the court or clerk of the court in which the conviction
78     was made or bail was forfeited shall prepare and immediately forward to the department an
79     abstract of the record of the court covering the case in which the person was convicted or
80     forfeited bail.
81          (b) The abstract shall be certified by the person required to prepare the abstract to be
82     true and correct.
83          (c) A report under this Subsection (2) is not required for a conviction involving the
84     illegal parking or standing of a vehicle.
85          (3) The abstract must be made in a manner specified by the Driver License Division
86     and shall include the:
87          (a) name and address of the party charged;
88          (b) number, if any, of the person's driver license;
89          (c) license plate number of the vehicle involved;
90          (d) nature of the offense;
91          (e) date of hearing;
92          (f) plea;
93          (g) judgment, or whether bail was forfeited; and
94          (h) amount of the fine or forfeiture.
95          (4) A court shall provide a copy of the report to the Driver License Division on the
96     conviction of a person of manslaughter or other felony in which a vehicle was used.
97          (5) The failure, refusal, or neglect of a judicial officer to comply with the requirements
98     of this section constitutes misconduct in office and is grounds for removal.
99          (6) The Driver License Division shall classify and disclose all abstracts received in
100     accordance with Section 53-3-109.
101          Section 3. Section 78A-6-1111 is amended to read:
102          78A-6-1111. Right to counsel -- Appointment of counsel for indigent -- Costs.
103          (1) (a) In any action in juvenile court initiated by the state, a political subdivision of the
104     state, or a private party, the parents, legal guardian, and the minor, where applicable, shall be
105     informed that they may be represented by counsel at every stage of the proceedings.
106          (b) In any action initiated by a private party, the parents or legal guardian shall have the
107     right to employ counsel of their own choice at their own expense.
108          (c) If, in any action initiated by the state or a political subdivision of the state under
109     Part 3, Abuse, Neglect, and Dependency Proceedings; Part 5, Termination of Parental Rights
110     Act; or Part 10, Adult Offenses, of this chapter or under Section 78A-6-1101, a parent or legal
111     guardian requests an attorney and is found by the court to be indigent, counsel shall be
112     appointed by the court to represent the parent or legal guardian in all proceedings directly
113     related to the petition or motion filed by the state, or a political subdivision of the state, subject
114     to the provisions of this section.
115          (d) In any action initiated by the state, a political subdivision of the state, or a private
116     party under Part 3, Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of
117     Parental Rights Act, of this chapter, the child shall be represented by a guardian ad litem in
118     accordance with Sections 78A-6-317 and 78A-6-902. The child shall also be represented by an
119     attorney guardian ad litem in other actions initiated under this chapter when appointed by the
120     court under Section 78A-6-902 or as otherwise provided by law.
121          (e) In any action initiated by the state or a political subdivision of the state under Part
122     6, Delinquency and Criminal Actions, or Part 7, Transfer of Jurisdiction, of this chapter, or
123     against a minor under Section 78A-6-1101, the parents or legal guardian and the minor shall be
124     informed that the minor has the right to be represented by counsel at every stage of the
125     proceedings.
126          (i) In cases where [a minor is facing a felony level offense] a petition or information
127     alleging a felony-level offense is filed, the court shall appoint counsel, who shall appear until
128     counsel is retained on the minor's behalf. The minor may not waive counsel unless the minor
129     has had a meaningful opportunity to consult with a defense attorney. The court shall make
130     findings on the record, taking into consideration the minor's unique circumstances and
131     attributes, that the waiver is knowing and voluntary and the minor understands the
132     consequences of waiving the right to counsel.
133          (ii) In all other [situations] cases in which a petition is filed the right to counsel may
134     not be waived by a minor unless there has been a finding on the record, taking into
135     consideration the minor's unique circumstances and attributes, that the waiver is knowing and
136     voluntary, and the minor understands the consequences of waiving the right to counsel.
137          (iii) If the minor is found to be indigent, counsel shall be appointed by the court to
138     represent the minor in all proceedings directly related to the petition or motion filed by the state
139     or a political subdivision of the state, subject to the provisions of this section.
140          (f) Indigency of a parent, legal guardian, or minor shall be determined in accordance
141     with the process and procedure defined in Section 77-32-202. The court shall take into account
142     the income and financial ability of the parent or legal guardian to retain counsel in determining
143     the indigency of the minor.
144          (g) The cost of appointed counsel for a party found to be indigent, including the cost of
145     counsel and expense of the first appeal, shall be paid by the county in which the trial court
146     proceedings are held. Counties may levy and collect taxes for these purposes.
147          (2) Counsel appointed by the court may not provide representation as court-appointed
148     counsel for a parent or legal guardian in any action initiated by, or in any proceeding to modify
149     court orders in a proceeding initiated by, a private party.
150          (3) If the county responsible to provide legal counsel for an indigent under Subsection
151     (1)(g) has arranged by contract to provide services, the court shall appoint the contracting
152     attorney as legal counsel to represent that indigent.
153          (4) The court may order a parent or legal guardian for whom counsel is appointed, and
154     the parents or legal guardian of any minor for whom counsel is appointed, to reimburse the
155     county for the cost of appointed counsel.
156          (5) The state, or an agency of the state, may not be ordered to reimburse the county for
157     expenses incurred under Subsection (1)(g).
158          Section 4. Section 78A-7-106 is amended to read:
159          78A-7-106. Jurisdiction.
160          (1) Justice courts have jurisdiction over class B and C misdemeanors, violation of
161     ordinances, and infractions committed within their territorial jurisdiction by a person 18 years
162     of age or older.
163          (2) Except those offenses over which the juvenile court has exclusive jurisdiction,
164     justice courts have jurisdiction over the following [class B and C misdemeanors, violation of
165     ordinances, and infractions] offenses committed within their territorial jurisdiction by a person
166     who is 16 or 17 years of age [or older]:
167          (a) class C misdemeanor and infraction violations of Title 53, Chapter 3, Part 2, Driver
168     Licensing Act; and
169          (b) class B and C misdemeanor and infraction violations of:
170          [(a)] (i) Title 23, Wildlife Resources Code of Utah;
171          [(b)] (ii) Title 41, Chapter 1a, Motor Vehicle Act;
172          [(c)] (iii) Title 41, Chapter 6a, Traffic Code;
173          [(d)] (iv) Title 41, Chapter 12a, Financial Responsibility of Motor Vehicle Owners and
174     Operators Act;
175          [(e)] (v) Title 41, Chapter 22, Off-Highway Vehicles;
176          [(f)] (vi) Title 73, Chapter 18, State Boating Act;
177          [(g)] (vii) Title 73, Chapter 18a, Boating - Litter and Pollution Control;
178          [(h)] (viii) Title 73, Chapter 18b, Water Safety; and
179          [(i)] (ix) Title 73, Chapter 18c, Financial Responsibility of Motorboat Owners and
180     Operators Act.
181          [(3) Justice Courts have jurisdiction over class C misdemeanor violations of Title 53,
182     Chapter 3, Part 2, Driver Licensing Act.]
183          [(4)] (3) As used in this section, "the court's jurisdiction" means the territorial
184     jurisdiction of a justice court.
185          [(5)] (4) An offense is committed within the territorial jurisdiction of a justice court if:
186          (a) conduct constituting an element of the offense or a result constituting an element of
187     the offense occurs within the court's jurisdiction, regardless of whether the conduct or result is
188     itself unlawful;
189          (b) either a person committing an offense or a victim of an offense is located within the
190     court's jurisdiction at the time the offense is committed;
191          (c) either a cause of injury occurs within the court's jurisdiction or the injury occurs
192     within the court's jurisdiction;
193          (d) a person commits any act constituting an element of an inchoate offense within the
194     court's jurisdiction, including an agreement in a conspiracy;
195          (e) a person solicits, aids, or abets, or attempts to solicit, aid, or abet another person in
196     the planning or commission of an offense within the court's jurisdiction;
197          (f) the investigation of the offense does not readily indicate in which court's
198     jurisdiction the offense occurred, and:
199          (i) the offense is committed upon or in any railroad car, vehicle, watercraft, or aircraft
200     passing within the court's jurisdiction;
201          (ii) (A) the offense is committed on or in any body of water bordering on or within this
202     state if the territorial limits of the justice court are adjacent to the body of water; and
203          (B) as used in Subsection (5)(f)(ii)(A), "body of water" includes any stream, river, lake,
204     or reservoir, whether natural or man-made;
205          (iii) a person who commits theft exercises control over the affected property within the
206     court's jurisdiction; or
207          (iv) the offense is committed on or near the boundary of the court's jurisdiction;
208          (g) the offense consists of an unlawful communication that was initiated or received
209     within the court's jurisdiction; or
210          (h) jurisdiction is otherwise specifically provided by law.
211          [(6)] (5) A justice court judge may transfer a criminal matter in which the defendant is
212     a child to the juvenile court for further proceedings if the justice court judge determines and the
213     juvenile court concurs that the best interests of the minor would be served by the continuing
214     jurisdiction of the juvenile court.
215          [(7)] (6) Justice courts have jurisdiction of small claims cases under Title 78A, Chapter
216     8, Small Claims Courts, if a defendant resides in or the debt arose within the territorial
217     jurisdiction of the justice court.
218          Section 5. Section 78A-7-118 is amended to read:
219          78A-7-118. Appeals from justice court -- Trial or hearing de novo in district
220     court.
221          (1) In a criminal case, a defendant is entitled to a trial de novo in the district court only
222     if the defendant files a notice of appeal within [30] 28 days of:
223          (a) sentencing, except as provided in Subsection (4)(b); or
224          (b) a plea of guilty or no contest in the justice court that is held in abeyance.
225          (2) Upon filing a proper notice of appeal, any term of a sentence imposed by the justice
226     court shall be stayed as provided for in Section 77-20-10 and the Rules of Criminal Procedure.
227          (3) If an appeal under Subsection (1) is of a plea entered pursuant to negotiation with
228     the prosecutor, and the defendant did not reserve the right to appeal as part of the plea
229     negotiation, the negotiation is voided by the appeal.
230          (4) A defendant convicted and sentenced in justice court is entitled to a hearing de
231     novo in the district court on the following matters, if the defendant files a notice of appeal
232     within [30] 28 days of:
233          (a) an order revoking probation;
234          (b) [an order entering a judgment of guilt pursuant to the person's failure] imposition of
235     a sentence, following a determination that a defendant failed to fulfill the terms of a plea in
236     abeyance agreement;
237          [(c) a sentence entered pursuant to Subsection (4)(b); or]
238          [(d)] (c) an order denying a motion to withdraw a plea[.], if the plea is being held in
239     abeyance and the motion to withdraw the plea is filed within 28 days of the entry of the plea;
240          (d) a postsentence order fixing total or court ordered restitution; or
241          (e) an order denying expungement.
242          (5) The prosecutor is entitled to a hearing de novo in the district court [on] if an appeal
243     is filed within 28 days of the court entering:
244          (a) a final judgment of dismissal;
245          (b) an order arresting judgment;
246          (c) an order terminating the prosecution because of a finding of double jeopardy or
247     denial of a speedy trial;
248          (d) a judgment holding invalid any part of a statute or ordinance;
249          (e) a pretrial order excluding evidence, when the prosecutor certifies that exclusion of
250     that evidence prevents continued prosecution of an infraction or class C misdemeanor;
251          (f) a pretrial order excluding evidence, when the prosecutor certifies that exclusion of
252     that evidence impairs continued prosecution of a class B misdemeanor; [or]
253          (g) an order granting a motion to withdraw a plea of guilty or no contest[.];
254          [(6) A notice of appeal for a hearing de novo in the district court on a pretrial order
255     excluding evidence under Subsection (5)(e) or (f) shall be filed within 30 days of the order
256     excluding the evidence.]
257          (h) an order fixing total restitution at an amount less than requested by a crime victim;
258     or
259          (i) an order granting an expungement, if the expungement was opposed by the
260     prosecution or a victim before the order was entered.
261          [(7)] (6) Upon entering a decision in a hearing de novo, the district court shall remand
262     the case to the justice court unless:
263          (a) the decision results in immediate dismissal of the case;
264          (b) with agreement of the parties, the district court consents to retain jurisdiction; or
265          (c) the defendant enters a plea of guilty or no contest in the district court.
266          [(8)] (7) The district court shall retain jurisdiction over the case on trial de novo.
267          [(9)] (8) The decision of the district court is final and may not be appealed unless the
268     district court rules on the constitutionality of a statute or ordinance.
269          Section 6. Section 78B-2-213 is amended to read:
270          78B-2-213. What constitutes adverse possession not under written instrument.
271          Land is considered to be possessed and occupied adversely by a person claiming title
272     not founded upon a written instrument, judgment, or decree in the following cases only, where:
273          (1) it has been protected by a substantial enclosure;
274          (2) it has been usually cultivated or improved; [and] or
275          (3) labor or money amounting to the sum of $5 per acre has been expended upon dams,
276     canals, embankments, aqueducts, or otherwise for the purpose of irrigating the land.
277          Section 7. Section 78B-6-807 is amended to read:
278          78B-6-807. Allegations permitted in complaint -- Time for appearance -- Service
279     of summons.
280          (1) The plaintiff, in his complaint:
281          (a) shall set forth the facts on which he seeks to recover;
282          (b) may set forth any circumstances of fraud, force, or violence which may have
283     accompanied the alleged forcible entry, or forcible or unlawful detainer; and
284          (c) claim damages or compensation for the occupation of the premises, or both.
285          (2) If the unlawful detainer charged is after default in the payment of rent, the
286     complaint shall state the amount of rent due.
287          (3) [A judge, court clerk, or plaintiff's counsel shall endorse on the summons] The
288     summons shall include the number of days within which the defendant is required to appear
289     and defend the action, which shall be three business days from the date of service, unless the
290     defendant objects to the number of days, and the court determines that the facts of the case
291     should allow more time.
292          (4) The court may authorize service by publication or mail for cause shown.
293          (5) Service by publication is complete one week after publication.
294          (6) Service by mail is complete three days after mailing.
295          (7) The summons shall be changed in form to conform to the time of service as
296     ordered, and shall be served as in other cases.