Senator Todd Weiler proposes the following substitute bill:


1     
INDIGENT DEFENSE AMENDMENTS

2     
2018 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 addresses provisions relating to indigent defense.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     rewrites portions of Title 77, Chapter 32, Part 8, Utah Indigent Defense
14     Commission;
15          ▸     addresses membership, membership qualifications, terms, and quorum requirements
16     of the commission;
17          ▸     addresses duties of the director of the commission;
18          ▸     addresses powers and duties of the commission;
19          ▸     addresses minimum guidelines;
20          ▸     addresses provisions regarding the Indigent Defense Resources Restricted Account;
21          ▸     addresses provisions of an indigent defense services grant program;
22          ▸     modifies provisions requiring cooperation and participation with commission;
23          ▸     repeals sections of the code relating to the commission; and
24          ▸     makes technical changes.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:
28          None
29     Utah Code Sections Affected:
30     AMENDS:
31          77-32-801, as last amended by Laws of Utah 2017, Chapter 111
32          77-32-802, as last amended by Laws of Utah 2017, Chapter 111
33          77-32-803, as last amended by Laws of Utah 2017, Chapter 111
34     ENACTS:
35          77-32-801.5, Utah Code Annotated 1953
36     REPEALS AND REENACTS:
37          77-32-804, as last amended by Laws of Utah 2017, Chapter 111
38          77-32-805, as last amended by Laws of Utah 2017, Chapter 111
39          77-32-806, as last amended by Laws of Utah 2017, Chapter 111
40          77-32-807, as last amended by Laws of Utah 2017, Chapter 111
41     REPEALS:
42          77-32-808, as last amended by Laws of Utah 2017, Chapter 111
43          77-32-809, as last amended by Laws of Utah 2017, Chapter 111
44          77-32-810, as enacted by Laws of Utah 2016, Chapter 177
45     

46     Be it enacted by the Legislature of the state of Utah:
47          Section 1. Section 77-32-801 is amended to read:
48     
Part 8. Utah Indigent Defense Commission

49          77-32-801. Utah Indigent Defense Commission -- Creation -- Purpose.
50          (1) There is created within the State Commission on Criminal and Juvenile Justice the
51     "Utah Indigent Defense Commission."
52          (2) The purpose of the commission is to assist the state in meeting the state's
53     obligations for the provision of indigent defense services, consistent with the United States
54     Constitution, the Utah Constitution, and the Utah Code.
55           [(3) Notwithstanding Section 77-32-201, for purposes of this part:]
56          [(a) "Indigent defense services" means the representation of indigent persons in
57     criminal, juvenile delinquency, and child welfare cases.]
58          [(b) "Indigent defense system" means indigent defense services provided by:]
59          [(i) local units of government, including a county, city, or town; or]
60          [(ii) a regional legal defense organization.]
61          Section 2. Section 77-32-801.5 is enacted to read:
62          77-32-801.5. Definitions.
63          Notwithstanding Section 77-32-201, as used in this part:
64          (1) "Account" means the Indigent Defense Resources Account, created in Section
65     77-32-805.
66          (2) "Indigent defense service provider" means an individual or an entity providing
67     indigent defense services for:
68          (a) a county;
69          (b) a municipality; or
70          (c) any combination of counties or municipalities, or both, through an interlocal
71     agreement or other agreement under Section 77-32-306 to provide regional indigent defense
72     services.
73          (3) "Indigent defense services" means the representation of an indigent individual.
74          (4) "Indigent defense system" means indigent defense services provided by:
75          (a) local units of government, including a county or municipality; or
76          (b) a regional legal defense organization.
77          (5) "Indigent individual" means an individual who:
78          (a) qualifies as indigent under indigency standards established in Section 77-32-202;
79          (b) does not, after being fully advised of the right to counsel, knowingly, intelligently,
80     and voluntarily waive the right to counsel; and
81          (c) is:
82          (i) accused of a criminal offense the penalty for which includes any possibility of
83     incarceration, confinement, or detention regardless of whether actually imposed;
84          (ii) a minor arrested or charged with any offense under Title 78A, Chapter 6, Part 6,
85     Delinquency and Criminal Actions, or Title 78A, Chapter 6, Part 7, Transfer of Jurisdiction;
86          (iii) a parent or legal guardian facing any action initiated by the state or political
87     subdivision of the state under Title 78A, Chapter 6, Part 3, Abuse, Neglect, and Dependency
88     Proceedings, Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act, or Title 78A,
89     Chapter 6, Part 10, Adult Offenses;
90          (iv) a parent or legal guardian facing any action initiated by a private party under Title
91     78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
92          (v) any one of the parties in the proceedings listed in this Subsection (5)(c), who is
93     appealing a first appeal from a conviction or other final court action in one of those
94     proceedings.
95          Section 3. Section 77-32-802 is amended to read:
96          77-32-802. Commission members -- Member qualifications -- Terms -- Vacancy.
97          (1) The commission is composed of [13] 14 voting members and [two] one ex officio,
98     nonvoting [members] member.
99          (a) The governor, with the consent of the Senate, shall appoint the following 12 voting
100     members:
101          (i) two practicing criminal defense attorneys [and one attorney practicing in the area of
102     juvenile delinquency defense] recommended by the Utah Association of Criminal Defense
103     Lawyers;
104          (ii) one attorney practicing in juvenile delinquency defense recommended by the Utah
105     Association of Criminal Defense Lawyers;
106          [(ii)] (iii) an attorney representing minority interests recommended by the Utah
107     Minority Bar Association;
108          [(iii)] (iv) one member recommended by the Utah Association of Counties from a
109     county of the first or second class;
110          [(iv)] (v) one member recommended by the Utah Association of Counties from a
111     county of the third through sixth class;
112          [(v)] (vi) a director of a county public defender organization recommended by the Utah
113     Association of Criminal Defense Lawyers;
114          [(vi)] (vii) two members recommended by the Utah League of Cities and Towns from
115     its membership;
116          [(vii)] (viii) a retired judge recommended by the Judicial Council;
117          [(viii)] (ix) one member of the Utah Legislature selected jointly by the Speaker of the
118     House and President of the Senate; and
119           [(ix)] (x) one attorney practicing in the area of parental defense, recommended by an
120     entity funded under Title 63A, Chapter 11, Child Welfare Parental Defense Program.
121          (b) The Judicial Council shall appoint a voting member from the Administrative Office
122     of the Courts.
123          [(b)] (c) The executive director of the State Commission on Criminal and Juvenile
124     Justice or the executive director's designee [shall be] is a voting member of the commission.
125          [(c) The ex officio, nonvoting members of the commission are:]
126          [(i) the director of the commission appointed in Section 77-32-803; and]
127          [(ii) a representative from the Administrative Office of the Courts appointed by the
128     Judicial Council.]
129          (d) The director of the commission, appointed under Section 77-32-803, is an ex
130     officio, nonvoting member of the commission.
131          (2) [Members] A member appointed by the governor shall serve a four-year [terms]
132     term, except as provided in Subsection (3).
133          (3) The governor shall stagger the initial terms of appointees so that approximately half
134     of the [commission is] members appointed by the governor are appointed every two years.
135          (4) [Members] A member appointed to the commission shall have significant
136     experience in indigent criminal defense , [child welfare] parental defense, or juvenile defense in
137     delinquency proceedings or have otherwise demonstrated a strong commitment to providing
138     effective representation in indigent defense services.
139          (5) A person who is currently employed solely as a criminal prosecuting attorney may
140     not serve as a member of the commission .
141          (6) [Commission members] A commission member shall hold office until [their
142     successors are] the member's successor is appointed.
143          (7) The commission may remove a member for incompetence, dereliction of duty,
144     malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
145          (8) [When] If a vacancy occurs in the membership for any reason, a replacement shall
146     be appointed for the remaining unexpired term in the same manner as the original appointment.
147          (9) The [governor shall appoint one of the initial commission members to serve as
148     chair of the commission for a term of one year. At the expiration of that year, or upon the
149     vacancy in the membership of the appointed chair, the] commission shall annually elect a chair
150     from the commission's membership to serve a one-year term. A commission member may not
151     serve as chair of the commission for more than three consecutive terms.
152          (10) A member may not receive compensation or benefits for the member's service, but
153     may receive per diem and travel expenses in accordance with:
154          (a) Section 63A-3-106;
155          (b) Section 63A-3-107; and
156          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
157     63A-3-107.
158          [(11) Six members constitute a quorum, however, the affirmative vote of at least six
159     members of the commission is required for official action of the commission.]
160          (11) (a) A majority of the members of the commission constitutes a quorum.
161          (b) If a quorum is present, the action of a majority of the voting members present
162     constitutes the action of the commission.
163          Section 4. Section 77-32-803 is amended to read:
164          77-32-803. Director -- Qualifications -- Staff.
165          (1) The commission shall appoint a director to carry out the following duties:
166          (a) establish an annual budget;
167          (b) assist the commission in [the performance of] performing the commission's
168     statutory duties;
169          (c) assist the commission in developing and regularly reviewing advisory caseload
170     guidelines and procedures[, including recommending to the commission suggested changes to
171     the criteria for an indigent person's eligibility to receive defense services under this chapter];
172     and
173          (d) perform all other duties as assigned.
174          (2) The director shall be an active member of the Utah State Bar with an appropriate
175     background and experience to serve as the full-time director.
176          (3) The director shall hire staff as necessary to carry out the duties of the commission,
177     including:
178          (a) one individual who is an active member of the Utah State Bar to serve as a full-time
179     assistant director; and
180          (b) one individual with data collection and analysis skills to carry out duties as outlined
181     in Subsection 77-32-804(1)[(a)](c).
182          (4) The commission in appointing the director, and the director in hiring the assistant
183     director, shall give a preference to individuals with experience in adult criminal defense, child
184     welfare parental defense, or juvenile delinquency defense.
185          Section 5. Section 77-32-804 is repealed and reenacted to read:
186          77-32-804. Powers and duties of the commission -- Minimum guidelines -- Annual
187     report.
188          (1) The commission shall:
189          (a) adopt minimum guidelines for an indigent defense system to ensure the effective
190     representation of indigent individuals consistent with the requirements of the United States
191     Constitution, the Utah Constitution, and the Utah Code, which guidelines at a minimum shall
192     address the following:
193          (i) an indigent defense system shall ensure that in providing indigent defense services:
194          (A) an indigent individual receives conflict-free indigent defense services; and
195          (B) there is a separate contract for each type of indigent defense service and conflict
196     cases; and
197          (ii) an indigent defense system shall ensure an indigent defense service provider has:
198          (A) the ability to exercise independent judgment without fear of retaliation and is free
199     to represent an indigent individual based on the indigent defense service provider's own
200     independent judgment;
201          (B) adequate access to defense resources;
202          (C) the ability to provide representation to accused persons in criminal cases at all
203     critical stages, and at all stages to indigent parties in juvenile delinquency and child welfare
204     proceedings;
205          (D) a workload that allows for sufficient time to meet with clients, investigate cases,
206     file appropriate documents with the courts, and otherwise provide effective assistance of
207     counsel to each client;
208          (E) adequate compensation without financial disincentives;
209          (F) appropriate experience or training in the area for which the indigent defense service
210     provider is representing indigent individuals;
211          (G) compensation for legal training and education in the areas of the law relevant to the
212     types of cases for which the indigent defense service provider is representing indigent
213     individuals; and
214          (H) the ability to meet the obligations of the Utah Rules of Professional Conduct,
215     including expectations on client communications and managing conflicts of interest;
216          (b) encourage and aid indigent defense systems in the state in the regionalization of
217     indigent defense services to provide for effective and efficient representation to all indigent
218     individuals;
219          (c) identify and collect data from any source, which is necessary for the commission to:
220          (i) aid, oversee, and review compliance by indigent defense systems with the
221     commission's minimum guidelines for the effective representation of indigent individuals; and
222          (ii) provide reports regarding the operation of the commission and the provision of
223     indigent defense services by indigent defense systems in the state;
224          (d) assist indigent defense systems by reviewing contracts and other agreements, to
225     ensure compliance with the commission's minimum guidelines for effective representation of
226     indigent individuals;
227          (e) investigate, audit, and review the provision of indigent defense services to ensure
228     compliance with the commission's minimum guidelines for the effective representation of
229     indigent individuals;
230          (f) establish procedures for the receipt and acceptance of complaints regarding the
231     provision of indigent defense services in the state;
232          (g) establish procedures to award grants to indigent defense systems under Section
233     77-32-806 consistent with the commission's minimum guidelines for the effective
234     representation of indigent individuals and appropriations by the state;
235          (h) emphasize the importance of ensuring constitutionally effective indigent defense
236     services;
237          (i) encourage members of the judiciary to provide input regarding the delivery of
238     indigent defense services;
239          (j) oversee individuals and entities involved in providing indigent defense services;
240          (k) annually report to the governor, Legislature, Judiciary Interim Committee, and
241     Judicial Council, regarding:
242          (i) the operations of the commission;
243          (ii) the operations of the indigent defense systems in the state; and
244          (iii) compliance with the commission's minimum guidelines by indigent defense
245     systems receiving grants from the commission;
246          (l) submit recommendations for improving indigent defense services in the state, to
247     legislative, executive, and judicial leadership; and
248          (m) publish an annual report on the commission's website.
249          (2) An indigent defense system within the state shall meet the minimum guidelines
250     adopted by the commission under Subsection (1)(a).
251          (3) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
252     Administrative Rulemaking Act, to carry out the commission's duties under this part.
253          Section 6. Section 77-32-805 is repealed and reenacted to read:
254          77-32-805. Indigent Defense Resources Restricted Account -- Administration.
255          (1) (a) There is created within the General Fund a restricted account known as the
256     "Indigent Defense Resources Restricted Account."
257          (b) Appropriations from the account are nonlapsing.
258          (2) The account consists of:
259          (a) money appropriated by the Legislature based upon recommendations from the
260     commission consistent with principles of shared state and local funding;
261          (b) any other money received by the commission from any source to carry out the
262     purposes of this part; and
263          (c) any interest and earnings from the investment of account money.
264          (3) The commission shall administer the account and, subject to appropriation,
265     disburse money from the account for the following purposes:
266          (a) to establish and maintain a statewide indigent defense data collection system;
267          (b) to establish and administer a grant program to provide grants of state money to
268     indigent defense systems as set forth in Section 77-32-806;
269          (c) to provide training and continuing legal education for indigent defense service
270     providers; and
271          (d) for administrative costs.
272          Section 7. Section 77-32-806 is repealed and reenacted to read:
273          77-32-806. Indigent defense services grant program.
274          (1) The commission may award grants to supplement local spending by a county or
275     municipality for indigent defense services and defense resources.
276          (2) Commission grant money may be used for the following expenses:
277          (a) to assist a county or municipality to provide indigent defense services that meet the
278     commission's minimum guidelines for the effective representation of indigent individuals;
279          (b) the establishment and maintenance of local indigent defense data collection
280     systems;
281          (c) indigent defense services in addition to those currently being provided by a county
282     or municipality; and
283          (d) to provide training and continuing legal education for indigent defense service
284     providers.
285          (3) To receive a grant from the commission, a county or municipality shall demonstrate
286     to the commission's satisfaction that:
287          (a) the county or municipality has incurred or reasonably anticipates incurring expenses
288     for indigent defense services that are in addition to the county's or municipality's average
289     annual spending on indigent defense services in the three fiscal years immediately preceding
290     the grant application; and
291          (b) a grant from the commission is necessary for the county or municipality to meet the
292     commission's minimum guidelines for the effective representation of indigent individuals.
293          (4) The commission may revoke a grant if an indigent defense system fails to meet
294     requirements of the grant or any of the commission's minimum guidelines for the effective
295     representation of indigent individuals.
296          Section 8. Section 77-32-807 is repealed and reenacted to read:
297          77-32-807. Cooperation and participation with the commission.
298          Indigent defense systems and entities or individuals engaged in providing indigent
299     defense services in the state shall cooperate and participate with the commission in the
300     collection of data, investigation, audit, and review of all indigent defense services.
301          Section 9. Repealer.
302          This bill repeals:
303          Section 77-32-808, Annual report, budget, and listing of expenditures --
304     Availability on website.
305          Section 77-32-809, Investigation, audit, and review of indigent and juvenile defense
306     services -- Cooperation and participation with commission -- Maintenance of local share
307     -- Necessity for excess funding.
308          Section 77-32-810, Applicability of GRAMA and Open and Public Meetings Act.