Representative Daniel McCay proposes the following substitute bill:




Chief Sponsor: Todd Weiler

House Sponsor: Daniel McCay


8     General Description:
9          This bill creates the Utah Indigent Defense Commission.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     creates the Utah Indigent Defense Commission and describes the commission's
14     membership;
15          ▸     gives the commission authority to collect data from local indigent criminal defense
16     authorities for the purpose of studying the provision of indigent criminal defense
17     services statewide;
18          ▸     requires the commission to study the indigent criminal defense system statewide
19     and report to the Legislature on its findings, including recommendations to improve
20     the system;
21          ▸     authorizes the commission to assist local jurisdictions to meet minimum standards
22     of effective representation by:
23               •     establishing advisory caseload principles and guidelines for defense services
24     providers; and
25               •     reviewing contracts and interlocal agreements with defense services providers

26     and providing recommendations for contract design;
27          ▸     establishes a restricted account to provide financial assistance to indigent criminal
28     defense systems;
29          ▸     conditions grants received from the account on indigent criminal defense systems
30     maintaining current funding levels for indigent criminal defense services;
31          ▸     allows juvenile courts to appoint counsel for an indigent private party in parental
32     termination cases; and
33          ▸     makes technical and conforming changes.
34     Money Appropriated in this Bill:
35          This bill appropriates:
36          ▸     to the Commission on Criminal and Juvenile Justice -- Utah Indigent Defense
37     Commission as a one-time appropriation
38               •     from the General Fund, $1,500,000; and
39          ▸     to the Commission on Criminal and Juvenile Justice -- Utah Indigent Defense
40     Commission
41               •     from the General Fund, $500,000.
42     Other Special Clauses:
43          None
44     Utah Code Sections Affected:
45     AMENDS:
46          63J-1-602.5, as last amended by Laws of Utah 2015, Chapter 137
47          77-32-201, as last amended by Laws of Utah 2012, Chapter 180
48          77-32-301, as last amended by Laws of Utah 2015, Chapter 258
49          77-32-302, as last amended by Laws of Utah 2012, Chapter 180
50          77-32-306, as last amended by Laws of Utah 2012, Chapter 180
51          78A-6-1111, as last amended by Laws of Utah 2015, Chapter 338
52     ENACTS:
53          77-32-801, Utah Code Annotated 1953
54          77-32-802, Utah Code Annotated 1953
55          77-32-803, Utah Code Annotated 1953
56          77-32-804, Utah Code Annotated 1953

57          77-32-805, Utah Code Annotated 1953
58          77-32-806, Utah Code Annotated 1953
59          77-32-807, Utah Code Annotated 1953
60          77-32-808, Utah Code Annotated 1953
61          77-32-809, Utah Code Annotated 1953
62          77-32-810, Utah Code Annotated 1953

64     Be it enacted by the Legislature of the state of Utah:
65          Section 1. Section 63J-1-602.5 is amended to read:
66          63J-1-602.5. List of nonlapsing funds and accounts -- Title 64 and thereafter.
67          (1) Funds collected by the housing of state probationary inmates or state parole
68     inmates, as provided in Subsection 64-13e-104(2).
69          (2) Certain forestry and fire control funds utilized by the Division of Forestry, Fire, and
70     State Lands, as provided in Section 65A-8-103.
71          (3) The Department of Human Resource Management user training program, as
72     provided in Section 67-19-6.
73          (4) Funds for the University of Utah Poison Control Center program, as provided in
74     Section 69-2-5.5.
75          (5) The Traffic Noise Abatement Program created in Section 72-6-112.
76          (6) Certain funds received by the Office of the State Engineer for well drilling fines or
77     bonds, as provided in Section 73-3-25.
78          (7) Certain money appropriated from the Water Resources Conservation and
79     Development Fund, as provided in Section 73-23-2.
80          (8) Certain funds appropriated for compensation for special prosecutors, as provided in
81     Section 77-10a-19.
82          (9) Funds donated or paid to a juvenile court by private sources, as provided in
83     Subsection 78A-6-203(1)(c).
84          (10) A state rehabilitative employment program, as provided in Section 78A-6-210.
85          (11) Fees for certificate of admission created under Section 78A-9-102.
86          (12) The money for the Utah Geological Survey, as provided in Section 79-3-401.
87          (13) Revenue for golf user fees at the Wasatch Mountain State Park, Palisades State

88     Park, Jordan River State Park, and Green River State Park, as provided under Section
89     79-4-403.
90          (14) Certain funds received by the Division of Parks and Recreation from the sale or
91     disposal of buffalo, as provided under Section 79-4-1001.
92          (15) The Bonneville Shoreline Trail Program created under Section 79-5-503.
93          (16) Funds appropriated and collected for adoption document access as provided in
94     Sections 78B-6-141, 78B-6-144, and 78B-6-144.5.
95          (17) Funds appropriated and collected for indigent defense as provided in Title 77,
96     Chapter 32, Part 8, Utah Indigent Defense Commission.
97          Section 2. Section 77-32-201 is amended to read:
98          77-32-201. Definitions.
99          For the purposes of this chapter:
100          (1) "Board" means the Indigent Defense Funds Board created in Section 77-32-401.
101          (2) "Commission" means the Utah Indigent Defense Commission created in Section
102     77-32-801.
103          [(2)] (3) "Compelling reason" shall include one or more of the following circumstances
104     relating to the contracting attorney:
105          (a) a conflict of interest;
106          (b) the contracting attorney does not have sufficient expertise to provide an effective
107     defense of the indigent; or
108          (c) the legal defense is insufficient or lacks expertise to provide a complete defense.
109          [(3)] (4) "Defense resources" means a competent investigator, expert witness, scientific
110     or medical testing, or other appropriate means necessary, for an effective defense of an
111     indigent, but does not include legal counsel.
112          [(4)] (5) "Defense services provider" means a legal aid association, legal defender's
113     office, regional legal defense association, law firm, attorney, or attorneys contracting with a
114     county or municipality to provide legal defense and includes any combination of counties or
115     municipalities to provide regional [legal defense] indigent criminal defense services.
116          (6) "Effective representation" means legal representation consistent with the Sixth
117     Amendment to the United States Constitution, and Utah Constitution, Article I, Section 12, as
118     interpreted through federal and Utah state appellate courts.

119          [(5)] (7) "Indigent" means a person qualifying as an indigent under indigency standards
120     established in Part 3, Counsel for Indigents.
121          (8) "Indigent criminal defense services" means the provision of a defense services
122     provider and defense resources to a defendant who is:
123          (a) being prosecuted or sentenced for a crime for which the defendant may be
124     incarcerated upon conviction, beginning with the defendant's initial appearance in court to
125     answer to the criminal charge; and
126          (b) determined to be indigent under Section 77-32-202.
127          (9) "Indigent criminal defense system" means:
128          (a) indigent criminal defense services provided by local units of government, including
129     counties, cities, and towns funded by state and local government; or
130          (b) indigent criminal defense services provided by regional legal defense funded by
131     state and local government.
132          [(6)] (10) "Legal aid association" means a nonprofit defense association or society that
133     provides legal defense for indigent defendants.
134          [(7)] (11) "Legal defender's office" means a division of county government created and
135     authorized by the county legislative body to provide legal representation in criminal matters to
136     indigent defendants.
137          [(8)] (12) "Legal defense" means to:
138          (a) provide defense counsel for each indigent who faces the potential deprivation of the
139     indigent's liberty;
140          (b) afford timely representation by defense counsel;
141          (c) provide the defense resources necessary for a complete defense;
142          (d) assure undivided loyalty of defense counsel to the client;
143          (e) provide a first appeal of right; and
144          (f) prosecute other remedies before or after a conviction, considered by defense counsel
145     to be in the interest of justice except for other and subsequent discretionary appeals or
146     discretionary writ proceedings.
147          (13) "Local funding" includes funding by an indigent criminal defense system for
148     defense services. Local funding may be adjusted annually to reflect population growth and
149     inflation for consideration of state funding for indigent criminal defense resources and critical

150     need indigent criminal defense providers.
151          [(9)] (14) "Participating county" means a county [which] that has complied with the
152     provisions of this chapter for participation in the Indigent [Capital] Aggravated Murder
153     Defense Trust Fund as provided in Sections 77-32-602 and 77-32-603 or the Indigent Felony
154     Defense Trust Fund as provided in Sections 77-32-702 and 77-32-703.
155          [(10)] (15) "Regional legal defense" means a defense services provider which provides
156     legal defense to any combination of counties or municipalities through an interlocal
157     cooperation agreement pursuant to Title 11, Chapter 13, Interlocal Cooperation Act, and
158     Subsection 77-32-306(3).
159          [(11)] (16) "Serious offense" means a felony or capital felony.
160          (17) "State funding" means funding by the state for:
161          (a) the establishment of a statewide indigent criminal defense data collection system;
162          (b) defense resources; and
163          (c) critical need defense services providers.
164          (18) "Shared state and local funding" means the recognition of the state's constitutional
165     responsibility for the provision of indigent defense services and the collaborative assistance by
166     indigent criminal defense systems to fairly provide effective representation in the state,
167     consistent with the safeguards of the United States Constitution, the Utah Constitution, and this
168     chapter.
169          Section 3. Section 77-32-301 is amended to read:
170          77-32-301. Minimum standards for defense of an indigent.
171          (1) Each county, city, and town shall provide for the legal defense of an indigent in
172     criminal cases in the courts and various administrative bodies of the state in accordance with
173     legal defense standards as defined in Subsection 77-32-201[(8)](12).
174          (2) (a) A county or municipality which contracts with a defense services provider shall
175     provide that all legal defense elements be included as a single package of legal defense services
176     made available to indigents, except as provided in Sections 77-32-302 and 77-32-303.
177          (b) When needed to avoid a conflict of interest between:
178          (i) trial counsel and counsel on appeal, a defense services provider contract shall also
179     provide for separate trial and appellate counsel; and
180          (ii) counsel for co-defendants, a defense services provider contract shall also provide

181     for separate trial counsel.
182          (c) If a county or municipality contracts to provide all legal defense elements as a
183     single package, a defendant may not receive funding for defense resources unless represented
184     by publicly funded counsel or as provided in Subsection 77-32-303(2).
185          Section 4. Section 77-32-302 is amended to read:
186          77-32-302. Assignment of counsel on request of indigent or order of court.
187          (1) [The] An indigent criminal defense services provider shall be assigned to represent
188     each indigent and shall provide the legal defense services necessary for [an] effective [defense]
189     representation, if the indigent is under arrest for or charged with a crime in which there is a
190     substantial probability that the penalty to be imposed is confinement in either jail or prison if:
191          (a) the indigent requests legal defense; or
192          (b) the court on its own motion or otherwise orders legal defense services and the
193     defendant does not affirmatively waive or reject on the record the opportunity to be provided
194     legal defense.
195          (2) (a) If a county responsible for providing indigent legal defense has established a
196     county legal defender's office and the court has received notice of the establishment of the
197     office, the court shall assign to the county legal defender's office the responsibility to defend
198     indigent defendants within the county and provide defense resources.
199          (b) If the county or municipality responsible to provide for the legal defense of an
200     indigent has arranged by contract to provide those services through a defense services provider,
201     and the court has received notice or a copy of the contract, the court shall assign the defense
202     services provider named in the contract to provide legal defense.
203          (c) If no county or municipal defense services provider contract exists, the court shall
204     select and assign a legal defense provider.
205          (d) If the court considers the assignment of a noncontracting legal defense provider to
206     an indigent defendant despite the existence of a defense services provider contract and the
207     court has a copy or notice of the contract, before the court may make the assignment, it shall:
208          (i) set the matter for a hearing;
209          (ii) give proper notice of the hearing to the attorney of the responsible county or
210     municipality and county clerk or municipal recorder; and
211          (iii) make findings that there is a compelling reason to appoint a noncontracting

212     attorney.
213          (e) The indigent's preference for other counsel or defense resources may not be
214     considered a compelling reason justifying the appointment of a noncontracting defense services
215     provider.
216          (3) The court may make a determination of indigency at any time.
217          Section 5. Section 77-32-306 is amended to read:
218          77-32-306. County or municipal legislative body to provide legal defense.
219          (1) The county or municipal legislative body shall either:
220          (a) contract with a defense services provider; or
221          (b) authorize the court to provide the services prescribed by this chapter by assigning a
222     qualified attorney in each case.
223          (2) A county may create a county legal defender's office to provide for the legal
224     defense as prescribed by this chapter.
225          (3) A county legal defender's office may, through the county legislative body, contract
226     with other counties and municipalities [within a judicial district] to provide the legal services
227     as prescribed.
228          (4) Counties and municipalities are encouraged to enter into interlocal cooperation
229     agreements pursuant to Title 11, Chapter 13, Interlocal Cooperation Act, for the provision of
230     legal defense, including multiple counties and municipalities contracting with either a private
231     defense services provider or with a legal defender's office. An interlocal agreement may
232     provide for:
233          (a) the creation of or contract with a private defense services provider, as defined in
234     Subsection 77-32-201[(4)](5);
235          (b) multiple counties or municipalities to contract with a county legal defender's office,
236     as defined in Subsection 77-32-201[(7)](11); or
237          (c) the creation of an interlocal entity under the provisions of Section 11-13-203.
238          (5) When a county or municipality has contracted under Subsection (1)(a) or a county
239     has created a legal defender's office as provided under Subsection (2) to provide the legal
240     defense resources required by this chapter, the legal services provider is the exclusive source
241     from which the legal defense may be provided, unless the court finds a compelling reason for
242     the appointment of noncontracting attorneys and defense resources, under the provisions of

243     Section 77-32-302 or 77-32-303, in which case the judge shall state the compelling reason and
244     the findings of the hearing held under Subsections 77-32-303(2) and (3) on the record.
245          (6) A county or municipality may, by ordinance, provide for some other means which
246     are constitutionally adequate for legal defense of indigents.
247          Section 6. Section 77-32-801 is enacted to read:
Part 8. Utah Indigent Defense Commission

249          77-32-801. Indigent Defense Commission creation -- Purpose.
250          (1) There is created within the Commission on Criminal and Juvenile Justice the Utah
251     Indigent Defense Commission.
252          (2) The purpose of the commission is to assist the state in meeting the state's
253     obligations for the provision of indigent criminal defense services, consistent with the United
254     States Constitution, the Utah Constitution, and this chapter.
255          Section 7. Section 77-32-802 is enacted to read:
256          77-32-802. Commission members -- Membership qualifications -- Terms --
257     Vacancy -- Administrative support.
258          (1) The commission is composed of 11 voting and two ex officio, nonvoting members.
259          (a) The governor, with the consent of the Senate, shall appoint the following nine
260     members:
261          (i) two practicing criminal defense attorneys recommended by the Utah Association of
262     Criminal Defense Lawyers;
263          (ii) an attorney representing minority interests recommended by the Utah Minority Bar
264     Association;
265          (iii) one member recommended by the Utah Association of Counties from a county of
266     the first or second class;
267          (iv) one member recommended by the Utah Association of Counties from a county of
268     the third through sixth class;
269          (v) a director of a county public defender organization recommended by the Utah
270     Association of Criminal Defense Lawyers;
271          (vi) two members recommended by the Utah League of Cities and Towns from its
272     membership;
273          (vii) a retired judge recommended by the Judicial Council; and

274          (viii) one member of the Utah Legislature selected jointly by the Speaker of the House
275     and President of the Senate.
276          (b) The executive director of the Commission on Criminal and Juvenile Justice or the
277     executive director's designee shall be a voting member of the commission.
278          (c) The ex officio, nonvoting members of the commission are:
279          (i) the director of the Utah Indigent Defense Commission appointed in Section
280     77-32-803; and
281          (ii) a representative from the Administrative Office of the Courts appointed by the
282     Judicial Council.
283          (2) Members appointed by the governor shall serve four-year terms, except as provided
284     in Subsection (3).
285          (3) The governor shall stagger the initial terms of appointees so that approximately half
286     of the commission is appointed every two years.
287          (4) Members appointed to the commission shall have significant experience in criminal
288     defense proceedings or have demonstrated a strong commitment to providing effective
289     representation in indigent criminal defense services.
290          (5) Commission members shall hold office until their successors are appointed.
291          (6) The commission may remove a member for incompetence, dereliction of duty,
292     malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
293          (7) When a vacancy occurs in the membership for any reason, a replacement shall be
294     appointed for the remaining unexpired term in the same manner as the original appointment.
295          (8) The governor shall appoint one of the initial commission members to serve as chair
296     of the commission for a term of one year. At the expiration of that year, or upon the vacancy in
297     the membership of the appointed chair, the commission shall annually elect a chair from the
298     commission's membership to serve a one-year term. A commission member may not serve as
299     chair of the commission for more than three consecutive terms.
300          (9) A member may not receive compensation or benefits for the member's service, but
301     may receive per diem and travel expenses in accordance with:
302          (a) Section 63A-3-106;
303          (b) Section 63A-3-107; and
304          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and

305     63A-3-107.
306          (10) Six members constitute a quorum, however, the affirmative vote of at least six
307     members of the commission is required for official action of the commission.
308          Section 8. Section 77-32-803 is enacted to read:
309          77-32-803. Director -- Qualifications -- Staff.
310          (1) The commission shall appoint a director to carry out the following duties:
311          (a) establish an annual budget;
312          (b) assist the commission in developing and regularly reviewing advisory caseload
313     guidelines and procedures, including recommending to the commission suggested changes to
314     the criteria for an indigent defendant's eligibility to receive criminal defense services under this
315     chapter; and
316          (c) perform all other duties as assigned.
317          (2) The director shall be a full-time licensed attorney with appropriate background and
318     experience to serve as the full-time director.
319          (3) The director shall hire staff as necessary to carry out the duties of the commission,
320     including at least one individual with data collection and analysis skills to carry out duties as
321     outlined in Subsection 77-32-804(1)(a).
322          Section 9. Section 77-32-804 is enacted to read:
323          77-32-804. Duties of the commission -- Annual report.
324          (1) The commission shall:
325          (a) develop and adopt guiding principles for the assessment and oversight of criminal
326     defense systems with the state that, at a minimum, address the following:
327          (i) Indigent defense service providers shall have independent judgment without fear of
328     retaliation.
329          (ii) Service providers shall provide conflict-free representation, including the need for a
330     separate contract for conflict counsel.
331          (iii) The state may not interfere with the service provider's access to clients and the
332     service provider is free to defend the client based on the service provider's own independent
333     judgment.
334          (iv) Accused persons shall be provided counsel at all critical stages of the criminal
335     process.

336          (v) Counsel shall be free to provide meaningful, adversarial testing of the evidence,
337     including:
338          (A) adequate access to defense resources; and
339          (B) workloads that allow for time to meet with clients, investigate cases, and file
340     appropriate motions.
341          (vi) Service providers shall be fairly compensated and incentivized to represent clients
342     fully through:
343          (A) compensation, that shall be independent from prosecutors' compensation;
344          (B) incentives that are structured to represent criminal defendants well; and
345          (C) separate contracts that are offered to the ensure right to appeal.
346          (vii) The commission may maintain oversight to collect data, audit attorney
347     performance, establish standards, and enforce the principles listed above;
348          (b) identify and collect data necessary for the commission to:
349          (i) review compliance by criminal defense systems of minimum principles for effective
350     representation;
351          (ii) establish procedures for the collection and analysis of the data; and
352          (iii) provide reports regarding the operation of the commission and the provision of
353     indigent criminal defense services by each indigent criminal defense system;
354          (c) develop and oversee the establishment of advisory caseload principles and
355     guidelines to aid indigent criminal defense systems in delivering effective representation in the
356     state consistent with the safeguards of the United States Constitution, the Utah Constitution,
357     and this chapter;
358          (d) review all contracts and interlocal agreements in the state for the provision of
359     indigent criminal defense services and provide assistance and recommendations regarding
360     compliance with minimum principles for effective representation;
361          (e) investigate, audit, and review the provision of indigent criminal defense services for
362     compliance with minimum principles;
363          (f) establish procedures for the receipt, acceptance, and resolution of complaints
364     regarding the provision of indigent criminal defense services;
365          (g) establish procedures that enable indigent criminal defense systems to apply for state
366     funding as provided under Section 77-32-805;

367          (h) establish procedures for annually reporting to the governor, Legislature, judicial
368     council, and indigent criminal defense systems throughout the state that include reporting the
369     following:
370          (i) the operations of the commission;
371          (ii) the operations of each indigent criminal defense system; and
372          (iii) each indigent criminal defense system's compliance with minimum standards for
373     the provision of indigent criminal defense services for effective representation;
374          (i) award grants to indigent criminal defense systems consistent with metrics
375     established by the commission under this part and appropriations by the state;
376          (j) encourage and aid in the regionalization of indigent criminal defense services within
377     the state for effective representation and for efficiency and cost savings to local systems;
378          (k) submit to legislative, executive, and judicial leadership, from time to time,
379     proposed recommendations for improvement in the provision of indigent criminal defense
380     services to ensure effective representation in the state, consistent with the safeguards of the
381     United States Constitution and the Utah Constitution; and
382          (l) identify and encourage best practices for effective representation to indigent
383     defendants charged with crimes.
384          (2) The commission shall emphasize the importance of indigent criminal defense
385     services provided to defendants, whether charged with a misdemeanor or felony.
386          (3) The commission shall establish procedures for the conduct of the commission's
387     affairs and internal policies necessary to carry out the commission's duties and responsibilities
388     under this part.
389          (4) Commission policies shall be placed in an appropriate manual, made publicly
390     available on a website, and made available to all attorneys and professionals providing indigent
391     criminal defense services, the judicial council, the governor, and the Legislature.
392          (5) The delivery of indigent criminal defense services shall be independent of the
393     judiciary, but the commission shall ensure that judges are permitted and encouraged to
394     contribute information and advice concerning the delivery of indigent criminal defense
395     services.
396          (6) An indigent criminal defense system that is in compliance with minimum principles
397     and procedures may not be required to provide indigent criminal defense services in excess of

398     those principles and procedures.
399          (7) The commission shall submit a report annually to the Judiciary Interim Committee
400     on the commission's efforts to improve the provision of indigent criminal defense services
401     statewide.
402          Section 10. Section 77-32-805 is enacted to read:
403          77-32-805. Indigent Defense Resources Account -- Administration.
404          (1) For purposes of this part, "account" means the Indigent Defense Resources
405     Account.
406          (2) (a) There is created within the General Fund a restricted account known as the
407     "Indigent Defense Resources Restricted Account."
408          (b) Funds in the account shall be nonlapsing.
409          (c) Subject to appropriation, funds from the account shall be disbursed by the Utah
410     Indigent Defense Commission in accordance with the provisions of this chapter.
411          (3) The account consists of:
412          (a) funds appropriated by the Legislature based upon recommendations from the
413     commission consistent with principles of shared state and local funding;
414          (b) other moneys received by the commission pursuant to Subsection 77-32-809(3);
415     and
416          (c) interest and earnings from the investment of account funds.
417          (4) Funds from the account shall be invested by the state treasurer with the earnings
418     and interest accruing to the account.
419          (5) The account shall be administered by the commission for:
420          (a) the establishment and maintenance of a statewide indigent criminal defense data
421     collection system;
422          (b) grants to indigent criminal defense systems for defense resources; and
423          (c) grants to indigent criminal defense systems for defense services providers.
424          (6) Money allocated to or deposited into the account shall be used:
425          (a) to reimburse participating systems for commission-approved expenditures for the
426     purposes listed in Subsection (5); and
427          (b) for administrative costs.
428          Section 11. Section 77-32-806 is enacted to read:

429          77-32-806. Indigent criminal defense system participation.
430          (1) To qualify for grant funds described in Subsection 77-32-805(5), the legislative
431     body responsible for an indigent criminal defense system shall:
432          (a) adopt a resolution stating the intent to apply for grant funds from the account and
433     committing that the indigent criminal defense system shall meet minimum principles for
434     effective representation; and
435          (b) submit a certified copy of that resolution together with an application to the
436     commission.
437          (2) The commission may revoke an indigent criminal defense system's grant award if
438     the system fails to meet minimum principles for effective representation.
439          Section 12. Section 77-32-807 is enacted to read:
440          77-32-807. Application for grant funds.
441          (1) Applications for grant moneys may seek resources for the following expenses:
442          (a) establishment and maintenance of an indigent criminal defense data collection
443     system;
444          (b) defense resources;
445          (c) matching fund grants for defense services providers; and
446          (d) critical need grants for defense services providers.
447          (2) (a) Matching fund grants, as described in Subsection (1)(c), may be awarded if the
448     indigent criminal defense system spends an amount greater than the system's baseline budget,
449     as described in Subsection 77-32-809(2)(a), for defense services providers.
450          (b) For the purposes of Subsection (2)(a), matching funds is an amount equal to the
451     product of:
452          (i) the indigent criminal defense system's spending above the system's baseline budget;
453     and
454          (ii) (A) 50% for counties of the first class;
455          (B) 100% for counties of the second or third class; or
456          (C) 200% for counties of the fourth through sixth class.
457          (3) Critical need grant moneys, as described in Subsection (1)(d), may be awarded if
458     the indigent criminal defense system can demonstrate to the commission's satisfaction that:
459          (a) the system has incurred or reasonably anticipates incurring expenses in excess of

460     the system's annual local funding, as adjusted for population growth and inflation;
461          (b) the funding for the expenses described in Subsection (3)(a) is necessary for the
462     indigent criminal defense system to meet minimum standards for effective representation; and
463          (c) increasing the system's local share for indigent criminal defense providers would
464     constitute an undue burden on the indigent criminal defense system.
465          (4) If the application of a participating indigent criminal defense system is approved by
466     the commission, the director of the commission shall negotiate, enter into, and administer a
467     contract with the participating indigent criminal defense system for the purposes listed in
468     Subsection (1).
469          (5) Nonparticipating systems remain responsible for meeting minimum principles for
470     effective representation but may not be eligible for any legislative relief.
471          (6) A county or municipality may not be required to increase the county or
472     municipality's certified tax rate pursuant to Section 59-2-924 to participate in the fund.
473          Section 13. Section 77-32-808 is enacted to read:
474          77-32-808. Annual report, budget, and listing of expenditures -- Availability on
475     website.
476          (1) As used in this section, "expenditures" means all payments or disbursements of
477     commission funds, received from any source, made by the commission.
478          (2) The commission shall publish and make available to the public on a website the
479     commission's annual report, budget, salary information, a listing of all expenditures, and a list
480     of all indigent criminal defense systems.
481          (3) Publication and availability of the listing of expenditures shall be on a quarterly
482     basis. The commission's budget and salary information may be published and made available
483     on an annual basis.
484          Section 14. Section 77-32-809 is enacted to read:
485          77-32-809. Investigation, audit, and review of indigent criminal defense services -
486     Cooperation and participation with commission -- Maintenance of local share -- Necessity
487     for excess funding -- Funds received by commission as state funds.
488          (1) All indigent criminal defense systems and attorneys engaged in providing indigent
489     criminal defense services shall cooperate and participate with the commission in the
490     investigation, audit, and review of all indigent criminal defense services.

491          (2) (a) For purposes of this part, "baseline budget" means an indigent criminal defense
492     system's share of local funding, adjusted annually for growth in population and inflation.
493          (b) An indigent criminal defense system shall maintain the system's baseline budget
494     each year.
495          (c) If the commission determines that funding in excess of the indigent criminal
496     defense system's baseline budget is necessary to achieve minimum principles for effective
497     representation, the excess funding shall be paid from state or local funding, or a combination of
498     both, as determined by the grant application process described in Section 77-32-807.
499          (d) An indigent criminal defense system is not required to expend all of the system's
500     local funding if minimum principles for effective representation may be met for less than local
501     funding.
502          (3) The commission may apply for and obtain state funding from any source to carry
503     out the purposes of this part. All funds received by the commission, from any source, are state
504     funds and shall be appropriated as provided by law.
505          Section 15. Section 77-32-810 is enacted to read:
506          77-32-810. Applicability of GRAMA and Open and Public Meetings Act.
507          (1) Official business conducted by the commission is subject to Title 63G, Chapter 2,
508     Government Records Access and Management Act.
509          (2) Meetings convened by the commission in the commission's official capacity are
510     subject to Title 52, Chapter 4, Open and Public Meetings Act.
511          Section 16. Section 78A-6-1111 is amended to read:
512          78A-6-1111. Right to counsel -- Appointment of counsel for indigent -- Costs.
513          (1) (a) In any action in juvenile court initiated by the state, a political subdivision of the
514     state, or a private party, the parents, legal guardian, and the minor, where applicable, shall be
515     informed that they may be represented by counsel at every stage of the proceedings.
516          (b) In any action initiated by a private party, the parents or legal guardian shall have the
517     right to employ counsel of their own choice at their own expense.
518          (c) If, in any action initiated by the state or a political subdivision of the state under
519     Part 3, Abuse, Neglect, and Dependency Proceedings; Part 5, Termination of Parental Rights
520     Act; or Part 10, Adult Offenses, of this chapter or under Section 78A-6-1101, a parent or legal
521     guardian requests an attorney and is found by the court to be indigent, counsel shall be

522     appointed by the court to represent the parent or legal guardian in all proceedings directly
523     related to the petition or motion filed by the state, or a political subdivision of the state, subject
524     to the provisions of this section.
525          (d) In any action initiated by the state, a political subdivision of the state, or a private
526     party under Part 3, Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of
527     Parental Rights Act, of this chapter, the child shall be represented by a guardian ad litem in
528     accordance with Sections 78A-6-317 and 78A-6-902. The child shall also be represented by an
529     attorney guardian ad litem in other actions initiated under this chapter when appointed by the
530     court under Section 78A-6-902 or as otherwise provided by law.
531          (e) In any action initiated by the state or a political subdivision of the state under Part
532     6, Delinquency and Criminal Actions, or Part 7, Transfer of Jurisdiction, of this chapter, or
533     against a minor under Section 78A-6-1101, the parents or legal guardian and the minor shall be
534     informed that the minor has the right to be represented by counsel at every stage of the
535     proceedings.
536          (i) In cases where a minor is facing a felony level offense, the court shall appoint
537     counsel, who shall appear until counsel is retained on the minor's behalf. The minor may not
538     waive counsel unless the minor has had a meaningful opportunity to consult with a defense
539     attorney. The court shall make findings on the record, taking into consideration the minor's
540     unique circumstances and attributes, that the waiver is knowing and voluntary and the minor
541     understands the consequences of waiving the right to counsel.
542          (ii) In all other situations the right to counsel may not be waived by a minor unless
543     there has been a finding on the record, taking into consideration the minor's unique
544     circumstances and attributes, that the waiver is knowing and voluntary, and the minor
545     understands the consequences of waiving the right to counsel.
546          (iii) If the minor is found to be indigent, counsel shall be appointed by the court to
547     represent the minor in all proceedings directly related to the petition or motion filed by the state
548     or a political subdivision of the state, subject to the provisions of this section.
549          (f) Indigency of a parent, legal guardian, or minor shall be determined in accordance
550     with the process and procedure defined in Section 77-32-202. The court shall take into account
551     the income and financial ability of the parent or legal guardian to retain counsel in determining
552     the indigency of the minor.

553          (g) The cost of appointed counsel for a party found to be indigent, including the cost of
554     counsel and expense of the first appeal, shall be paid by the county in which the trial court
555     proceedings are held. Counties may levy and collect taxes for these purposes.
556          (2) [Counsel] Except as provided in Subsection (3), counsel appointed by the court
557     may not provide representation as court-appointed counsel for a parent or legal guardian in any
558     action initiated by, or in any proceeding to modify court orders in a proceeding initiated by, a
559     private party.
560          (3) Unless the court finds there is a likelihood that the failure to appoint counsel for an
561     indigent private party may result in a deprivation of due process, counsel appointed by the
562     court may not provide representation as court-appointed counsel for a parent or legal guardian
563     in a termination of parental rights action initiated by a private party.
564          [(3)] (4) If the county responsible to provide legal counsel for an indigent under
565     Subsection (1)(g) has arranged by contract to provide services, the court shall appoint the
566     contracting attorney as legal counsel to represent that indigent.
567          [(4)] (5) The court may order a parent or legal guardian for whom counsel is appointed,
568     and the parents or legal guardian of any minor for whom counsel is appointed, to reimburse the
569     county for the cost of appointed counsel.
570          [(5)] (6) The state, or an agency of the state, may not be ordered to reimburse the
571     county for expenses incurred under Subsection (1)(g).
572          Section 17. Appropriation.
573          (1) Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures Act,
574     the following sums of money are appropriated for the fiscal year beginning July 1, 2015, and
575     ending June 30, 2016. These are additions to amounts previously appropriated for fiscal year
576     2016.
577          (a) The Legislature authorizes the State Division of Finance to transfer the following
578     amounts among the following funds or accounts as indicated. Expenditures and outlays from
579     the recipient funds must be authorized elsewhere in an appropriations act.
580          To Fund and Account Transfers - General Fund Restricted -
581           Indigent Defense Resources Account
582               From General Fund, One-time

583               Schedule of Programs:

584                    General Fund Restricted - Indigent Defense
585                     Resources Account                    $1,500,000
586          (b) Under the terms and conditions of Utah Code Title 63J, Chapter 1, Budgetary
587     Procedures Act, the Legislature appropriates the following sums of money from the funds or
588     fund accounts indicated for the use and support of the government of the State of Utah.
589          To Governor's Office - Commission on Criminal and Juvenile Justice -
590           Utah Indigent Defense Commission
591               From General Fund Restricted - Indigent Defense
592                Resources Account

593               Schedule of Programs:
594                    Administration                    $1,500,000
595          (2) Under the terms and conditions of Utah Code Title 63J, Chapter 1, Budgetary
596     Procedures Act, the following sums of money are appropriated for the fiscal year beginning
597     July 1, 2016 and ending June 30, 2017.
598          (a) Restricted Fund and Account Transfers. The Legislature authorizes the State
599     Division of Finance to transfer the following amounts among the following funds or accounts
600     as indicated. Expenditures and outlays from the recipient funds must be authorized elsewhere
601     in an appropriations act.
602          To Fund and Account Transfers - General Fund Restricted - Indigent
603           Defense Resources Account
604               From General Fund

605               Schedule of Programs:
606                    General Fund Restricted - Indigent Defense
607                     Resources Account                    $500,000
608          (b) Under the terms and conditions of Utah Code Title 63J, Chapter 1, Budgetary
609     Procedures Act, the Legislature appropriates the following sums of money from the funds or
610     fund accounts indicated for the use and support of the government of the State of Utah.
611          To Governor's Office - Commission on Criminal and Juvenile Justice -
612           Utah Indigent Defense Commission
613               From General Fund Restricted - Indigent Defense
614                Resources Account

615               Schedule of Programs:
616                    Administration                     $500,000