7 LONG TITLE
8 General Description:
9 This bill addresses indigent defense services.
10 Highlighted Provisions:
11 This bill:
12 ▸ creates and modifies definitions;
13 ▸ amends the right to counsel for certain parties;
14 ▸ amends the powers, duties, and membership of the Utah Indigent Defense
16 ▸ creates the Office of Indigent Defense Services;
17 ▸ creates the powers and duties of the Office of Indigent Defense Services;
18 ▸ amends provisions related to indigent defense grants;
19 ▸ creates the Indigent Appellate Defense Division to serve rural counties;
20 ▸ provides the powers and duties of the Indigent Appellate Defense Division;
21 ▸ creates the position of chief appellate officer within the Indigent Appellate Defense
22 Division; and
23 ▸ makes technical and conforming changes.
24 Money Appropriated in this Bill:
26 Other Special Clauses:
28 Utah Code Sections Affected:
30 78A-6-1111, as last amended by Laws of Utah 2019, Chapter 326
31 78B-6-112, as last amended by Laws of Utah 2019, Chapters 136, 326, and 491
32 78B-22-102, as enacted by Laws of Utah 2019, Chapter 326
33 78B-22-201, as enacted by Laws of Utah 2019, Chapter 326
34 78B-22-301, as enacted by Laws of Utah 2019, Chapter 326
35 78B-22-401, as renumbered and amended by Laws of Utah 2019, Chapter 326
36 78B-22-402, as last amended by Laws of Utah 2019, Chapter 435 and renumbered and
37 amended by Laws of Utah 2019, Chapter 326
38 78B-22-404, as renumbered and amended by Laws of Utah 2019, Chapter 326
39 78B-22-406, as renumbered and amended by Laws of Utah 2019, Chapter 326
40 78B-22-601, as renumbered and amended by Laws of Utah 2019, Chapter 326
42 78B-22-451, Utah Code Annotated 1953
43 78B-22-452, Utah Code Annotated 1953
44 78B-22-801, Utah Code Annotated 1953
45 78B-22-802, Utah Code Annotated 1953
46 78B-22-803, Utah Code Annotated 1953
47 78B-22-804, Utah Code Annotated 1953
48 RENUMBERS AND AMENDS:
49 78B-22-453, (Renumbered from 78B-22-403, as renumbered and amended by Laws of
50 Utah 2019, Chapter 326)
52 Be it enacted by the Legislature of the state of Utah:
53 Section 1. Section 78A-6-1111 is amended to read:
54 78A-6-1111. Order for indigent defense service or guardian ad litem.
57 (1) A court shall order indigent defense services in accordance with Title 78B, Chapter
58 22, Indigent Defense Act, for a minor, parent, or legal guardian facing an action filed by a
59 private party or the state under this title.
60 (2) (a) In any action under Part 3, Abuse, Neglect, and Dependency Proceedings, or
61 Part 5, Termination of Parental Rights Act, the child shall be represented by a guardian ad
62 litem in accordance with Sections 78A-6-317 and 78A-6-902.
63 (b) The child shall [
64 actions initiated under this chapter when appointed by the court under Section 78A-6-902 or as
65 otherwise provided by law.
66 Section 2. Section 78B-6-112 is amended to read:
67 78B-6-112. District court jurisdiction over termination of parental rights
69 (1) A district court has jurisdiction to terminate parental rights in a child if the party
71 of facilitating the adoption of the child.
72 (2) A petition to terminate parental rights under this section may be:
73 (a) joined with a proceeding on an adoption petition; or
74 (b) filed as a separate proceeding before or after a petition to adopt the child is filed.
75 (3) A court may enter a final order terminating parental rights before a final decree of
76 adoption is entered.
77 (4) (a) Nothing in this section limits the jurisdiction of a juvenile court relating to
78 proceedings to terminate parental rights as described in Section 78A-6-103.
79 (b) This section does not grant jurisdiction to a district court to terminate parental
80 rights in a child if the child is under the jurisdiction of the juvenile court in a pending abuse,
81 neglect, dependency, or termination of parental rights proceeding.
82 (5) The district court may terminate an individual's parental rights in a child if:
83 (a) the individual executes a voluntary consent to adoption, or relinquishment for
84 adoption, of the child, in accordance with:
85 (i) the requirements of this chapter; or
86 (ii) the laws of another state or country, if the consent is valid and irrevocable;
87 (b) the individual is an unmarried biological father who is not entitled to consent to
88 adoption, or relinquishment for adoption, under Section 78B-6-120 or 78B-6-121;
89 (c) the individual:
90 (i) received notice of the adoption proceeding relating to the child under Section
91 78B-6-110; and
92 (ii) failed to file a motion for relief, under Subsection 78B-6-110(6), within 30 days
93 after the day on which the individual was served with notice of the adoption proceeding;
94 (d) the court finds, under Section 78B-15-607, that the individual is not a parent of the
95 child; or
96 (e) the individual's parental rights are terminated on grounds described in Title 78A,
97 Chapter 6, Part 5, Termination of Parental Rights Act, [
99 (6) The court shall appoint an indigent defense service provider[
100 with Title 78B, Chapter 22, Indigent Defense Act, to represent [
101 faces any action initiated by a private party under Title 78A, Chapter 6, Part 5, Termination of
102 Parental Rights Act, or whose parental rights are subject to termination under this section.
103 (7) If a county incurs expenses in providing indigent defense services to an indigent
104 individual facing any action initiated by a private party under Title 78A, Chapter 6, Part 5,
105 Termination of Parental Rights Act, or termination of parental rights under this section, the
106 county may apply for reimbursement from the Utah Indigent Defense Commission [
107 accordance with Section 78B-22-406.
108 (8) A petition filed under this section is subject to the procedural requirements of this
110 Section 3. Section 78B-22-102 is amended to read:
111 78B-22-102. Definitions.
112 As used in this chapter:
113 (1) "Account" means the Indigent Defense Resources Restricted Account created in
114 Section 78B-22-405.
115 (2) "Board" means the Indigent Defense Funds Board created in Section 78B-22-501.
116 (3) "Commission" means the Utah Indigent Defense Commission created in Section
118 (4) "Director" means the director of the Office of Indigent Defense Services, created in
119 Section 78B-22-451, who is appointed in accordance with Section 78B-22-453.
121 effective defense for an indigent individual, including the costs for a competent investigator,
122 expert witness, scientific or medical testing, transcripts, and printing briefs.
123 (b) "Indigent defense resources" does not include an indigent defense service provider.
125 represent an indigent individual pursuant to:
126 (a) a contract with an indigent defense system to provide indigent defense services; or
127 (b) an order issued by the court under Subsection 78B-22-203(2)(a).
129 (a) the representation of an indigent individual by an indigent defense service provider;
131 (b) the provision of indigent defense resources for an indigent individual.
133 (a) a city or town that is responsible for providing indigent defense services [
135 (b) a county that is responsible for providing indigent defense services in the district
136 court, juvenile court, [
137 (c) an interlocal entity, created pursuant to Title 11, Chapter 13, Interlocal Cooperation
138 Act, that is responsible for providing indigent defense services according to the terms of an
139 agreement between a county, city, or town.
141 (a) a minor who is:
142 (i) arrested and admitted into detention for an offense under Section 78A-6-103;
143 (ii) charged by petition or information in the juvenile or district court; or
144 (iii) described in this Subsection [
145 adjudication or other final court action; and
146 (b) an individual listed in Subsection 78B-22-201(1) who is found indigent pursuant to
147 Section 78B-22-202.
149 (11) "Office" means the Office of Indigent Defense Services created in Section
152 participation in the Indigent Aggravated Murder Defense Trust Fund as provided in Sections
153 78B-22-702 and 78B-22-703.
154 Section 4. Section 78B-22-201 is amended to read:
155 78B-22-201. Right to counsel.
156 (1) A court shall advise the following of the individual's right to counsel when the
157 individual first appears before the court:
158 (a) an adult charged with a criminal offense the penalty for which includes the
159 possibility of incarceration regardless of whether actually imposed;
160 (b) a parent or legal guardian facing [
161 (i) Title 78A, Chapter 6, Part 3, Abuse, Neglect, and Dependency Proceedings;
162 (ii) Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
163 (iii) Title 78A, Chapter 6, Part 10, Adult Offenses; [
165 (c) a parent or legal guardian facing an action initiated by Ĥ→ [
166 (i) Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
167 (ii) Section 78B-6-112; or
170 (2) If an individual described in Subsection (1) does not knowingly and voluntarily
171 waive the right to counsel, the court shall determine whether the individual is indigent under
172 Section 78B-22-202.
173 Section 5. Section 78B-22-301 is amended to read:
174 78B-22-301. Standards for indigent defense systems.
175 An indigent defense system shall provide indigent defense services for an indigent
176 individual in accordance with the [
177 commission under Section 78B-22-404.
178 Section 6. Section 78B-22-401 is amended to read:
179 78B-22-401. Utah Indigent Defense Commission -- Creation -- Purpose.
180 (1) There is created the Utah Indigent Defense Commission within the State
181 Commission on Criminal and Juvenile Justice [
182 (2) The purpose of the commission is to assist:
183 (a) the state in meeting the state's obligations for the provision of indigent defense
184 services, consistent with the United States Constitution, the Utah Constitution, and the Utah
185 Code; and
186 (b) the office with carrying out the statutory duties assigned to the commission and
188 Section 7. Section 78B-22-402 is amended to read:
189 78B-22-402. Commission members -- Member qualifications -- Terms -- Vacancy.
190 (1) The commission is composed of 15 [
192 (a) The governor, with the consent of the Senate, shall appoint the following [
194 (i) two practicing criminal defense attorneys recommended by the Utah Association of
195 Criminal Defense Lawyers;
196 (ii) one attorney practicing in juvenile delinquency defense recommended by the Utah
197 Association of Criminal Defense Lawyers;
198 (iii) one attorney practicing in the area of parental defense, recommended by an entity
199 funded under the Child Welfare Parental Defense Program created in Section 63M-7-211;
201 Minority Bar Association;
203 county of the first or second class;
205 county of the third through sixth class;
207 the Utah Association of Criminal Defense Lawyers;
209 its membership; and
214 shall appoint two members of the Utah Legislature, one from the House of Representatives and
215 one from the Senate[
217 Office of the Courts.
219 Justice or the executive director's designee is a [
222 (2) A member appointed by the governor shall serve a four-year term, except as
223 provided in Subsection (3).
224 (3) The governor shall stagger the initial terms of appointees so that approximately half
225 of the members appointed by the governor are appointed every two years.
226 (4) A member appointed to the commission shall have significant experience in
227 indigent criminal defense , parental defense, or juvenile defense in delinquency proceedings or
228 have otherwise demonstrated a strong commitment to providing effective representation in
229 indigent defense services.
230 (5) [
231 prosecuting attorney may not serve as a member of the commission .
232 (6) A commission member shall hold office until the member's successor is appointed.
233 (7) The commission may remove a member for incompetence, dereliction of duty,
234 malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
235 (8) If a vacancy occurs in the membership for any reason, a replacement shall be
236 appointed for the remaining unexpired term in the same manner as the original appointment.
237 (9) (a) The commission shall [
238 commission's membership to serve a one-year term.
239 (b) A commission member may not serve as chair of the commission for more than
240 three consecutive terms.
241 (10) A member may not receive compensation or benefits for the member's service[
242 but may receive per diem and travel expenses in accordance with:
243 (a) Section 63A-3-106;
244 (b) Section 63A-3-107; and
245 (c) rules made by the Division of Finance [
246 63A-3-106 and 63A-3-107.
247 (11) (a) A majority of the members of the commission constitutes a quorum.
248 (b) If a quorum is present, the action of a majority of the voting members present
249 constitutes the action of the commission.
250 Section 8. Section 78B-22-404 is amended to read:
251 78B-22-404. Powers and duties of the commission.
252 (1) The commission shall:
253 (a) adopt [
254 ensure the effective representation of indigent individuals consistent with the requirements of
255 the United States Constitution, the Utah Constitution, and the Utah Code, which [
256 core principles at a minimum shall address the following:
257 (i) an indigent defense system shall ensure that in providing indigent defense services:
258 (A) an indigent individual receives conflict-free indigent defense services; and
259 (B) there is a separate contract for each type of indigent defense service; and
260 (ii) an indigent defense system shall ensure an indigent defense service provider has:
261 (A) the ability to exercise independent judgment without fear of retaliation and is free
262 to represent an indigent individual based on the indigent defense service provider's own
263 independent judgment;
264 (B) adequate access to indigent defense resources;
265 (C) the ability to provide representation to accused individuals in criminal cases at the
266 critical stages of proceedings, and at [
267 delinquency and child welfare proceedings;
268 (D) a workload that allows for sufficient time to meet with clients, investigate cases,
269 file appropriate documents with the courts, and otherwise provide effective assistance of
270 counsel to each client;
271 (E) adequate compensation without financial disincentives;
272 (F) appropriate experience or training in the area for which the indigent defense service
273 provider is representing indigent individuals;
274 (G) compensation for legal training and education in the areas of the law relevant to the
275 types of cases for which the indigent defense service provider is representing indigent
276 individuals; and
277 (H) the ability to meet the obligations of the Utah Rules of Professional Conduct,
278 including expectations on client communications and managing conflicts of interest;
279 (b) encourage and aid indigent defense systems in the state in the regionalization of
280 indigent defense services to provide for effective and efficient representation to the indigent
300 defense services;
302 indigent defense services[
314 (2) The commission may:
315 (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
316 Rulemaking Act, to carry out the commission's duties under this part[
317 (b) assign duties related to indigent defense services to the office to assist the
318 commission with the commission's statutory duties.
319 Section 9. Section 78B-22-406 is amended to read:
320 78B-22-406. Indigent defense services grant program.
321 (1) The commission may award grants [
322 (a) to supplement local spending by an indigent defense system for indigent defense[
323 services; and
324 (b) for contracts to provide indigent defense services for appeals from juvenile court
325 proceedings in a county of the third, fourth, fifth, or sixth class.
326 (2) [
327 commission may use grant money:
328 (a) to assist an indigent defense system to provide indigent defense services that meet
329 the commission's [
330 indigent individuals;
331 (b) [
332 defense data collection systems;
333 (c) to provide indigent defense services in addition to [
334 that are currently being provided by an indigent defense system; [
335 (d) to provide training and continuing legal education for indigent defense service
337 (e) to assist indigent defense systems with appeals from juvenile court proceedings.
338 (3) To receive a grant from the commission, an indigent defense system shall
339 demonstrate to the commission's satisfaction that:
340 (a) the indigent defense system has incurred or reasonably anticipates incurring
341 expenses for indigent defense services that are in addition to the indigent defense system's
342 average annual spending on indigent defense services in the three fiscal years immediately
343 preceding the grant application; and
344 (b) a grant from the commission is necessary for the indigent defense system to meet
345 the commission's [
346 indigent individuals.
347 (4) The commission may revoke a grant if an indigent defense system fails to meet
348 requirements of the grant or any of the commission's [
349 the effective representation of indigent individuals.
350 Section 10. Section 78B-22-451 is enacted to read:
352 78B-22-451. Office of Indigent Defense Services -- Creation.
353 There is created the Office of Indigent Defense Services within the State Commission
354 of Criminal and Juvenile Justice.
355 Section 11. Section 78B-22-452 is enacted to read:
356 78B-22-452. Duties of the office.
357 (1) The office shall:
358 (a) establish an annual budget for the Indigent Defense Resources Restricted Account
359 created in Section 78B-22-405;
360 (b) assist the commission in performing the commission's statutory duties described in
361 this chapter;
362 (c) identify and collect data that is necessary for the commission to:
363 (i) aid, oversee, and review compliance by indigent defense systems with the
364 commission's core principles for the effective representation of indigent individuals; and
365 (ii) provide reports regarding the operation of the commission and the provision of
366 indigent defense services by indigent defense systems in the state;
367 (d) assist indigent defense systems by reviewing contracts and other agreements to
368 ensure compliance with the commission's core principles for the effective representation of
369 indigent individuals;
370 (e) establish procedures for the receipt and acceptance of complaints regarding the
371 provision of indigent defense services in the state;
372 (f) establish procedures to award grants to indigent defense systems under Section
373 78B-22-406 that are consistent with the commission's core principles;
374 (g) assist the commission in developing and reviewing advisory caseload guidelines
375 and procedures;
376 (h) investigate, audit, and review the provision of indigent defense services to ensure
377 compliance with the commission's core principles for the effective representation of indigent
379 (i) annually report to the governor, Legislature, Judiciary Interim Committee, and
380 Judicial Council, regarding:
381 (A) the operations of the commission;
382 (B) the operations of the indigent defense systems in the state; and
383 (C) compliance with the commission's core principles by indigent defense systems
384 receiving grants from the commission;
385 (j) submit recommendations to the commission for improving indigent defense services
386 in the state;
387 (k) publish an annual report on the commission's website; and
388 (l) perform all other duties assigned by the commission related to indigent defense
390 (2) The office may enter into contracts and accept, allocate, and administer funds and
391 grants from any public or private person to accomplish the duties of the office.
392 (3) Any contract entered into under this part shall require that indigent defense services
393 are provided in a manner consistent with the commission's core principles implemented under
394 Section 78B-22-404.
395 Section 12. Section 78B-22-453, which is renumbered from Section 78B-22-403 is
396 renumbered and amended to read:
404 (1) The executive director of the State Commission on Criminal and Juvenile Justice
405 shall appoint a director to carry out the duties of the office described in Section 78B-22-452.
406 (2) The director shall be an active member of the Utah State Bar with an appropriate
407 background and experience to serve as the full-time director.
408 (3) The director shall hire staff as necessary to carry out the duties of the [
409 office described in Section 78B-22-452, including:
410 (a) one individual who is an active member of the Utah State Bar to serve as a full-time
411 assistant director; and
412 (b) one individual with data collection and analysis skills [
414 (4) When appointing the director of the office under Subsection (1), the executive
415 director of the State Commission on Criminal and Juvenile Justice shall give preference to an
416 individual with experience in adult criminal defense, child welfare parental defense, or juvenile
417 delinquency defense.
420 (5) When hiring the assistant director, the director shall give preference to an
421 individual with experience in adult criminal defense, child welfare parental defense, or juvenile
422 delinquency defense.
423 Section 13. Section 78B-22-601 is amended to read:
424 78B-22-601. Defense of indigent inmates.
425 (1) The board shall enter into contracts to provide indigent defense services for an
426 indigent inmate who:
427 (a) is incarcerated in a state prison located in a county of the third, fourth, fifth, or sixth
428 class as defined in Section 17-50-501;
429 (b) is charged with having committed a crime within that state prison; and
430 (c) will require defense counsel.
431 (2) Payment for indigent defense services shall be made from the Indigent Inmate Trust
432 Fund as provided in Section 78B-22-602.
433 (3) A contract under this part shall ensure that indigent defense services are provided in
434 a manner consistent with the [
436 (4) The county attorney or district attorney of a county of the third, fourth, fifth, or
437 sixth class shall function as the prosecuting entity.
438 (5) (a) A county of the third, fourth, fifth, or sixth class where a state prison is located
439 may impose an additional property tax levy by ordinance at .0001 per dollar of taxable value in
440 the county.
441 (b) If the county governing body imposes the additional property tax levy by ordinance,
442 the [
443 Section 78B-22-602 to fund the purposes of this part.
444 (c) Upon notification that the fund has reached the amount specified in Subsection
445 78B-22-602(6), a county shall deposit [
446 the county receives the notice into a county account used exclusively to provide indigent
447 defense services.
448 (d) A county that chooses not to impose the additional levy by ordinance may not
449 receive any benefit from the Indigent Inmate Trust Fund.
450 Section 14. Section 78B-22-801 is enacted to read:
452 78B-22-801. Definitions.
453 (1) Ĥ→ (a) ←Ĥ "Appellate defense services" means the representation of an indigent
454 facing an appeal under Section 77-18a-1.
454a Ĥ→ (b) "Appellate defense services" does not include the representation of an indigent
454b individual facing an appeal in a case where the indigent individual was prosecuted for
454c aggravated murder Ĥ→ [
454d Trust Fund created in Section 78B-22-701
455 (2) "Division" means the Indigent Appellate Defense Division created in Section
457 Section 15. Section 78B-22-802 is enacted to read:
458 78B-22-802. Indigent Appellate Defense Division.
459 There is created the Indigent Appellate Defense Division within the Office of Indigent
460 Defense Services.
461 Section 16. Section 78B-22-803 is enacted to read:
462 78B-22-803. Powers and duties of the division.
463 (1) The division shall:
464 (a) provide appellate defense services in counties of the third, fourth, fifth, and sixth
465 class; and
466 (b) provide appellate defense services in accordance with the core principles adopted
467 by the commission under Section 78A-22-404 and any other state and federal standards for
468 appellate defense services.
469 (2) Upon consultation with the director and the commission, the division shall:
470 (a) adopt a budget for the division;
471 (b) adopt and publish on the commission's website:
472 (i) appellate performance standards;
473 (ii) case weighting standards; and
474 (iii) any other relevant measures or information to assist with appellate defense
475 services; and
476 (c) if requested by the commission, provide a report to the commission on:
477 (i) the provision of appellate defense services by the division;
478 (ii) the caseloads of appellate attorneys; and
479 (iii) any other information relevant to appellate defense services in the state.
480 (3) If the division provides appellate defense services to an indigent individual in an
481 indigent defense system, the division shall provide notice to the district court and the indigent
482 defense system that the division intends to be appointed as counsel for the indigent individual.
483 (4) The office shall assist with providing training and continual legal education on
484 appellate defense to indigent defense service providers in counties of the third, fourth, fifth, and
485 sixth class.
486 Section 17. Section 78B-22-804 is enacted to read:
487 78B-22-804. Chief appellate officer -- Qualifications -- Staff.
488 (1) (a) After consulting with the commission, the director shall appoint a chief
489 appellate officer.
490 (b) When appointing the chief appellate officer, the director shall give preference to an
491 individual with experience in adult criminal appellate defense representation.
492 (2) The chief appellate officer shall be an active member of the Utah State Bar with an
493 appropriate background and experience to serve as the chief appellate officer.
494 (3) The chief appellate officer shall carry out the duties of the division described in
495 Section 78B-22-803.
496 (4) The chief appellate officer shall:
497 (a) provide appellate defense services in a county of the third, fourth, fifth, or sixth
499 (b) hire staff as necessary to carry out the duties of the division described in Section
500 78A-22-803; and
501 (c) perform all other duties that are necessary for the division to carry out the division's
502 statutory duties.