Senator Todd Weiler proposes the following substitute bill:


1     
INDIGENT DEFENSE COMMISSION AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd Weiler

5     
House Sponsor: Craig Hall

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Indigent Defense Act.
10     Highlighted Provisions:
11          This bill:
12          ▸      expands the Utah Indigent Defense Commission to include juvenile defense;
13          ▸     addresses the make up of the commission;
14          ▸     changes the director of the commission to executive director and addresses the
15     qualifications and duties, including the hiring of staff;
16          ▸     addresses the powers and duties of the commission;
17          ▸     modifies provisions related to the Indigent Defense Resources Account;
18          ▸     addresses indigent criminal and juvenile defense system participation;
19          ▸     amends provisions related to application for grant money;
20          ▸     addresses cooperation with the commission; and
21          ▸     makes technical and conforming changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:
28          77-32-801, as enacted by Laws of Utah 2016, Chapter 177
29          77-32-802, as enacted by Laws of Utah 2016, Chapter 177
30          77-32-803, as enacted by Laws of Utah 2016, Chapter 177
31          77-32-804, as enacted by Laws of Utah 2016, Chapter 177
32          77-32-805, as enacted by Laws of Utah 2016, Chapter 177
33          77-32-806, as enacted by Laws of Utah 2016, Chapter 177
34          77-32-807, as enacted by Laws of Utah 2016, Chapter 177
35          77-32-808, as enacted by Laws of Utah 2016, Chapter 177
36          77-32-809, as enacted by Laws of Utah 2016, Chapter 177
37     

38     Be it enacted by the Legislature of the state of Utah:
39          Section 1. Section 77-32-801 is amended to read:
40          77-32-801. Indigent Defense Commission creation -- Purpose -- Definition.
41          (1) There is created within the Commission on Criminal and Juvenile Justice the Utah
42     Indigent Defense Commission.
43          (2) The purpose of the commission is to assist the state in meeting the state's
44     obligations for the provision of indigent [criminal] defense services, consistent with the United
45     States Constitution, the Utah Constitution, and [this chapter] the Utah Code.
46           (3) Notwithstanding Section 77-32-201, for purposes of this part:
47          (a) "Indigent defense services" means the representation of indigent persons in
48     criminal, juvenile delinquency, and child welfare cases.
49          (b) "Indigent defense system" means indigent defense services provided by:
50          (i) local units of government, including a county, city, or town; or
51          (ii) a regional legal defense organization.
52          Section 2. Section 77-32-802 is amended to read:
53          77-32-802. Commission members -- Membership qualifications -- Terms --
54     Vacancy -- Administrative support.
55          (1) The commission is composed of [11] 13 voting and two ex officio, nonvoting
56     members.
57          (a) The governor, with the consent of the Senate, shall appoint the following [nine] 12
58     members:
59          (i) two practicing criminal defense attorneys and one attorney practicing in the area of
60     juvenile delinquency defense recommended by the Utah Association of Criminal Defense
61     Lawyers;
62          (ii) an attorney representing minority interests recommended by the Utah Minority Bar
63     Association;
64          (iii) one member recommended by the Utah Association of Counties from a county of
65     the first or second class;
66          (iv) one member recommended by the Utah Association of Counties from a county of
67     the third through sixth class;
68          (v) a director of a county public defender organization recommended by the Utah
69     Association of Criminal Defense Lawyers;
70          (vi) two members recommended by the Utah League of Cities and Towns from its
71     membership;
72          (vii) a retired judge recommended by the Judicial Council; [and]
73          (viii) one member of the Utah Legislature selected jointly by the Speaker of the House
74     and President of the Senate[.]; and
75           (ix) one attorney practicing in the area of parental defense, recommended by an entity
76     funded under Title 63A, Chapter 11, Child Welfare Parental Defense Program.
77          (b) The executive director of the Commission on Criminal and Juvenile Justice or the
78     executive director's designee shall be a voting member of the commission.
79          (c) The ex officio, nonvoting members of the commission are:
80          (i) the executive director of the [Utah Indigent Defense Commission] commission
81     appointed in Section 77-32-803; and
82          (ii) a representative from the Administrative Office of the Courts appointed by the
83     Judicial Council.
84          (2) Members appointed by the governor shall serve four-year terms, except as provided
85     in Subsection (3).
86          (3) The governor shall stagger the initial terms of appointees so that approximately half
87     of the commission is appointed every two years.
88          (4) Members appointed to the commission shall have significant experience in indigent
89     criminal defense , child welfare parental defense, or juvenile defense in delinquency
90     proceedings or have otherwise demonstrated a strong commitment to providing effective
91     representation in indigent [criminal] defense services.
92          (5) A person who is currently employed solely as a criminal prosecuting attorney may
93     not serve as a member of the commission .
94          [(5)] (6) Commission members shall hold office until their successors are appointed.
95          [(6)] (7) The commission may remove a member for incompetence, dereliction of duty,
96     malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
97          [(7)] (8) When a vacancy occurs in the membership for any reason, a replacement shall
98     be appointed for the remaining unexpired term in the same manner as the original appointment.
99          [(8)] (9) The governor shall appoint one of the initial commission members to serve as
100     chair of the commission for a term of one year. At the expiration of that year, or upon the
101     vacancy in the membership of the appointed chair, the commission shall annually elect a chair
102     from the commission's membership to serve a one-year term. A commission member may not
103     serve as chair of the commission for more than three consecutive terms.
104          [(9)] (10) A member may not receive compensation or benefits for the member's
105     service, but may receive per diem and travel expenses in accordance with:
106          (a) Section 63A-3-106;
107          (b) Section 63A-3-107; and
108          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
109     63A-3-107.
110          [(10)] (11) Six members constitute a quorum, however, the affirmative vote of at least
111     six members of the commission is required for official action of the commission.
112          Section 3. Section 77-32-803 is amended to read:
113          77-32-803. Executive director -- Qualifications -- Staff.
114          (1) The commission shall appoint [a] an executive director to carry out the following
115     duties:
116          (a) establish an annual budget;
117          (b) assist the commission in [developing and regularly reviewing advisory caseload
118     guidelines and procedures, including recommending to the commission suggested changes to
119     the criteria for an indigent defendant's eligibility to receive criminal defense services under this
120     chapter; and] the performance of the commission's statutory duties;
121          (c) assist the commission in developing and regularly reviewing advisory caseload
122     guidelines and procedures, including recommending to the commission suggested changes to
123     the criteria for an indigent person's eligibility to receive defense services under this chapter;
124     and
125          [(c)] (d) perform all other duties as assigned.
126          (2) The executive director shall be [a full-time licensed attorney] an active member of
127     the Utah State Bar with an appropriate background and experience to serve as the full-time
128     executive director.
129          (3) The executive director shall hire staff as necessary to carry out the duties of the
130     commission, including [at least one individual with data collection and analysis skills to carry
131     out duties as outlined in Subsection 77-32-804(1)(a).]:
132          (a) one individual who is an active member of the Utah State Bar to serve as a full-time
133     assistant director; and
134          (b) one individual with data collection and analysis skills to carry out duties as outlined
135     in Subsection 77-32-804(1)(a).
136          (4) The commission in appointing the executive director, and the executive director in
137     hiring the assistant director, shall give a preference to individuals with experience in adult
138     criminal defense, child welfare parental defense, or juvenile delinquency defense.
139          Section 4. Section 77-32-804 is amended to read:
140          77-32-804. Powers and duties of the commission -- Annual report.
141          (1) The commission shall:
142          (a) develop and adopt guiding principles for the assessment and oversight of [criminal]
143     indigent defense systems with the state that, at a minimum, address the following:
144          (i) Indigent defense service providers shall have independent judgment without fear of
145     retaliation.
146          (ii) Service providers shall provide conflict-free representation, including the need for a
147     separate contract for conflict counsel.
148          (iii) Service providers shall provide contracts that separately account for indigent
149     criminal defense, parental defense, and juvenile delinquency defense.
150          [(iii)] (iv) The state may not interfere with the service provider's access to clients and
151     the service provider is free to defend the client based on the service provider's own independent
152     judgment[.]:
153          [(iv)] (A) Accused persons in criminal cases shall be provided counsel at all critical
154     stages [of the criminal process] .
155          (B) Indigent parties in juvenile delinquency and child welfare proceedings shall be
156     provided counsel at all stages.
157          [(v)] (v) Counsel shall be free to provide meaningful[, adversarial testing of the
158     evidence] representation, including:
159          (A) adequate access to defense resources; and
160          (B) workloads that allow for time to meet with clients, investigate cases, and file
161     appropriate motions.
162          [(vi)] (vi) Service providers shall be fairly compensated and incentivized to represent
163     clients fully through:
164          (A) compensation, that shall be independent from prosecutors' compensation;
165          (B) incentives that are structured to effectively represent [criminal defendants well;
166     and] indigent persons;
167          (C) contract provisions that address legal training and education in the areas of the law
168     relevant to the types of cases the service provider is contracted to appear on;
169          [(C)] (D) separate contracts [that are offered] for appellate attorneys to ensure the right
170     to appeal[.]; and
171          (E) compensation sufficient to attract applicants qualified with adequate experience in
172     the relevant areas of the law to provide effective representation in the defense of clients.
173          (vii) Contracts that address counsel's obligation under the Utah Rules of Professional
174     Conduct, including expectations on client communications and managing conflicts of interest.
175          [(vii)] (viii) The commission may maintain oversight to collect data, audit attorney
176     performance, establish standards, and enforce the principles listed [above] in this Subsection
177     (1)(a);
178          (b) identify and collect data necessary for the commission to:
179          (i) review compliance by [criminal] indigent defense systems of minimum principles
180     for effective representation;
181          (ii) establish procedures for the collection and analysis of the data; and
182          (iii) provide reports regarding the operation of the commission and the provision of
183     indigent [criminal] defense services by each indigent [criminal] defense system;
184          (c) develop and oversee the establishment of advisory caseload principles and
185     guidelines to aid indigent [criminal] defense systems in delivering effective representation in
186     the state consistent with the safeguards of the United States Constitution, the Utah
187     Constitution, and [this chapter] the Utah Code;
188          (d) review [all] contracts and interlocal agreements in the state for the provision of
189     indigent [criminal] defense services and provide assistance and recommendations regarding
190     compliance with minimum principles for effective representation of indigent individuals in
191     court ;
192          (e) investigate, audit, and review the provision of indigent [criminal] defense services
193     for compliance with minimum principles;
194           (f) establish procedures for the receipt, acceptance, and resolution of complaints
195     regarding the provision of indigent [criminal] defense services;
196          (g) establish procedures that enable indigent [criminal] defense systems to apply for
197     state funding as provided under Section 77-32-805;
198          (h) establish procedures for annually reporting to the governor, Legislature, and
199     Judicial Council, [and indigent criminal defense systems throughout the state that] which
200     include reporting the following:
201          (i) the operations of the commission;
202          (ii) the operations of each indigent [criminal] defense system to which the commission
203     has granted money ; and
204          (iii) the compliance by each indigent [criminal] defense [system's compliance] system
205     that has received a grant of money from the commission, with minimum [standards] principles
206     for the provision of indigent [criminal] defense services and for effective representation of
207     indigent individuals in court ;
208          (i) award grants to indigent [criminal] defense systems consistent with metrics
209     established by the commission under this part and appropriations by the state;
210          (j) encourage and aid in the regionalization of indigent [criminal] defense services
211     within the state for effective representation and for efficiency and cost savings to local
212     systems;
213          (k) submit to legislative, executive, and judicial leadership, from time to time,
214     proposed recommendations for improvement in the provision of indigent [criminal] defense
215     services to ensure effective representation in the state, consistent with the safeguards of the
216     United States Constitution [and], the Utah Constitution , and the Utah Code ; and
217          (l) identify and encourage best practices for effective representation [to indigent
218     defendants charged with crimes].
219          (2) The commission shall emphasize the importance of effective indigent [criminal]
220     defense services [provided to defendants, whether charged with a misdemeanor or felony].
221          (3) The commission shall establish procedures for the conduct of the commission's
222     affairs and internal policies necessary to carry out the commission's duties and responsibilities
223     under this part.
224          (4) Commission policies shall be [placed in an appropriate manual,] made publicly
225     available on a website[, and made available to all attorneys and professionals providing
226     indigent criminal defense services, the Judicial Council, the governor, and the Legislature].
227          (5) The delivery of indigent [criminal] defense services shall be independent of the
228     judiciary, but the commission shall ensure that judges are permitted and encouraged to
229     contribute information and advice concerning the delivery of indigent [criminal] defense
230     services.
231          (6) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
232     Administrative Rulemaking Act, to establish guiding principles for the constitutional provision
233     of indigent defense services in the state.
234          [(6)] (7) An indigent [criminal] defense system that is in compliance with minimum
235     principles and procedures may not be required to provide indigent [criminal] defense services
236     in excess of those principles and procedures.
237          [(7)] (8) The commission shall [submit a] report annually to the Judiciary Interim
238     Committee on the commission's efforts to improve the provision of indigent [criminal] defense
239     services statewide.
240          Section 5. Section 77-32-805 is amended to read:
241          77-32-805. Indigent Defense Resources Account -- Administration.
242          (1) For purposes of this part, "account" means the Indigent Defense Resources
243     Account.
244          (2) (a) There is created within the General Fund a restricted account known as the
245     "Indigent Defense Resources Restricted Account."
246          (b) [Funds] Money in the account shall be nonlapsing.
247          (c) Subject to appropriation, [funds] money from the account shall be disbursed by the
248     [Utah Indigent Defense Commission ] commission in accordance with [the provisions of this
249     chapter] this part.
250          (3) The account consists of:
251          (a) [funds] money appropriated by the Legislature based upon recommendations from
252     the commission consistent with principles of shared state and local funding;
253          (b) other [moneys] money received by the commission pursuant to Subsection
254     77-32-809(3); and
255          (c) interest and earnings from the investment of account [funds] money.
256          (4) [Funds] Money from the account shall be invested by the state treasurer with the
257     earnings and interest accruing to the account.
258          (5) The account shall be administered by the commission for:
259          (a) the establishment and maintenance of a statewide indigent [criminal] defense data
260     collection system;
261          (b) grants to indigent [criminal] defense systems for defense resources; and
262          (c) grants to indigent [criminal] defense systems for defense services providers.
263          (6) Money allocated to or deposited into the account shall be used:
264          (a) to reimburse participating systems for commission-approved expenditures for the
265     purposes listed in Subsection (5); and
266          (b) for administrative costs.
267          Section 6. Section 77-32-806 is amended to read:
268          77-32-806. Indigent and juvenile defense system participation.
269          (1) To qualify for grant [funds] money described in Subsection 77-32-805(5), the
270     legislative body responsible for an indigent [criminal] defense system shall:
271          (a) adopt a resolution stating the intent to apply for grant [funds] money from the
272     account and committing that the indigent [criminal] defense system shall meet minimum
273     principles for the effective representation of indigent individuals in court ; and
274          (b) submit a certified copy of that resolution together with an application to the
275     commission.
276          (2) The commission may revoke an indigent [criminal] defense system's grant award if
277     the system fails to meet minimum principles for the effective representation of indigent
278     individuals in court or other grant conditions established by the commission .
279          Section 7. Section 77-32-807 is amended to read:
280          77-32-807. Application for grant money.
281          (1) Applications for grant [moneys] money from the commission may seek resources
282     for the following expenses:
283          (a) establishment and maintenance of an indigent [criminal] defense data collection
284     system;
285          (b) defense resources;
286          (c) matching [fund] money grants for defense services providers; and
287          (d) critical need grants for defense services providers.
288          (2) (a) Matching [fund] money grants, as described in Subsection (1)(c), may be
289     awarded if the indigent [criminal] defense system spends an amount greater than the system's
290     baseline budget, as described in Subsection 77-32-809(2)(a), for defense services providers.
291          (b) For the purposes of Subsection (2)(a), matching [funds is an amount equal to the
292     product of] money grants may be awarded by the commission in an amount up to:
293          (i) for a city or town, the indigent [criminal] defense system's spending above the
294     system's baseline budget; and
295          (ii) for a county, the product of the indigent defense system's spending above the
296     system's baseline budget and:
297          (A) 50% for counties of the first class;
298          (B) 100% for counties of the second or third class; or
299          (C) 200% for counties of the fourth through sixth class.
300          (3) Critical need grant [moneys] money, as described in Subsection (1)(d), may be
301     awarded if the indigent [criminal] defense system can demonstrate to the commission's
302     satisfaction that:
303          (a) the system has incurred or reasonably anticipates incurring expenses in excess of
304     the system's annual local funding, as adjusted for population growth and inflation;
305          (b) the funding for the expenses described in Subsection (3)(a) is necessary for the
306     indigent [criminal] defense system to meet minimum [standards] principles for effective
307     representation; and
308          (c) increasing the system's local share for indigent [criminal] defense providers would
309     constitute an undue burden on the indigent [criminal] defense system.
310          (4) If the application of a participating indigent [criminal] defense system is approved
311     by the commission, the director of the commission shall negotiate, enter into, and administer a
312     contract with the participating indigent [criminal] defense system for the purposes listed in
313     Subsection (1).
314          (5) Nonparticipating systems remain responsible for meeting minimum principles for
315     effective representation but may not be eligible for any legislative relief.
316          (6) A county or municipality may not be required to increase the county or
317     municipality's certified tax rate pursuant to Section 59-2-924 to participate in the fund.
318          Section 8. Section 77-32-808 is amended to read:
319          77-32-808. Annual report, budget, and listing of expenditures -- Availability on
320     website.
321          (1) As used in this section, "expenditures" means all payments or disbursements of
322     commission [funds] money, received from any source, made by the commission.
323          (2) The commission shall publish and make available to the public on a website the
324     commission's annual report, budget, salary information, a listing of all expenditures, and a list
325     of all indigent [criminal] defense systems.
326          (3) Publication and availability of the listing of expenditures shall be on a quarterly
327     basis. The commission's budget and salary information may be published and made available
328     on an annual basis.
329          Section 9. Section 77-32-809 is amended to read:
330          77-32-809. Investigation, audit, and review of indigent and juvenile defense
331     services -- Cooperation and participation with commission -- Maintenance of local share
332     -- Necessity for excess funding.
333          (1) [All indigent criminal] Indigent defense systems and attorneys engaged in
334     providing indigent [criminal] defense services shall cooperate and participate with the
335     commission in the investigation, audit, and review of all indigent [criminal] defense services.
336          (2) (a) For purposes of this part, "baseline budget" means an indigent [criminal]
337     defense system's [share of local funding, adjusted annually for growth in population and
338     inflation] annual expenditure for the indigent defense services. The baseline budget shall be
339     adjusted for indigent defense case load fluctuations and inflations whenever subsequent grant
340     requests are submitted to the commission.
341          (b) An indigent [criminal] defense system shall maintain the system's baseline budget
342     each year.
343          (c) If the commission determines that [funding] money in excess of the indigent
344     [criminal] defense system's baseline budget is necessary to achieve minimum principles for
345     effective representation, the excess [funding] money shall be paid from state or local funding,
346     or a combination of both, as determined by the grant application process described in Section
347     77-32-807.
348          (d) An indigent [criminal] defense system is not required to expend all of the system's
349     local funding if minimum principles for effective representation may be met for less than local
350     funding.
351          (3) The commission may apply for and obtain state funding from any source to carry
352     out the purposes of this part. [All funds] Money received by the commission, from any source,
353     are state funds and shall be appropriated as provided by law.