Senator Wayne A. Harper proposes the following substitute bill:


1     
DEFENSE CONTRACTS AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: Eric K. Hutchings

6     

7     LONG TITLE
8     General Description:
9          This bill modifies and enacts provisions related to indigent and parental defense.
10     Highlighted Provisions:
11          This bill:
12          ▸     creates and modifies definitions;
13          ▸     amends the powers, duties, and membership of the Utah Indigent Defense
14     Commission;
15          ▸     creates the Office of Indigent Defense Services;
16          ▸     creates the powers and duties of the Office of Indigent Defense Services;
17          ▸     requires the Office of Indigent Defense Services to administer the Child Welfare
18     Parental Defense Program;
19          ▸     modifies provisions relating to administration of the Child Welfare Parental
20     Defense Program;
21          ▸     creates a reporting requirement for indigent defense services; and
22          ▸     makes technical and conforming changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          This bill provides coordination clauses.
27     Utah Code Sections Affected:
28     AMENDS:
29          63M-7-204, as last amended by Laws of Utah 2019, Chapter 435
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-22-401, as renumbered and amended by Laws of Utah 2019, Chapter 326
35          78B-22-402, as last amended by Laws of Utah 2019, Chapter 435 and renumbered and
36     amended by Laws of Utah 2019, Chapter 326
37          78B-22-404, as renumbered and amended by Laws of Utah 2019, Chapter 326
38          78B-22-406, as renumbered and amended by Laws of Utah 2019, Chapter 326
39     ENACTS:
40          78B-22-451, Utah Code Annotated 1953
41          78B-22-452, Utah Code Annotated 1953
42          78B-22-801, Utah Code Annotated 1953
43     RENUMBERS AND AMENDS:
44          78B-22-453, (Renumbered from 78B-22-403, as renumbered and amended by Laws of
45     Utah 2019, Chapter 326)
46          78B-22-802, (Renumbered from 63M-7-211, as enacted by Laws of Utah 2019, Chapter
47     435)
48          78B-22-803, (Renumbered from 63M-7-211.1, as enacted by Laws of Utah 2019,
49     Chapter 435)
50          78B-22-804, (Renumbered from 63M-7-211.2, as enacted by Laws of Utah 2019,
51     Chapter 435)
52     Utah Code Sections Affected by Coordination Clause:
53          78B-22-402, as last amended by Laws of Utah 2019, Chapter 435 and renumbered and
54     amended by Laws of Utah 2019, Chapter 326
55          78B-22-406, as renumbered and amended by Laws of Utah 2019, Chapter 326
56          78B-22-451, Utah Code Annotated 1953
57          78B-22-452, Utah Code Annotated 1953
58          78B-22-453, Renumbered from 78B-22-403, as renumbered and amended by Laws of
59     Utah 2019, Chapter 326
60          78B-22-803, Renumbered from 63M-7-211.1, as enacted by Laws of Utah 2019,
61     Chapter 435
62     

63     Be it enacted by the Legislature of the state of Utah:
64          Section 1. Section 63M-7-204 is amended to read:
65          63M-7-204. Duties of commission.
66          (1) The State Commission on Criminal and Juvenile Justice administration shall:
67          (a) promote the commission's purposes as enumerated in Section 63M-7-201;
68          (b) promote the communication and coordination of all criminal and juvenile justice
69     agencies;
70          (c) study, evaluate, and report on the status of crime in the state and on the
71     effectiveness of criminal justice policies, procedures, and programs that are directed toward the
72     reduction of crime in the state;
73          (d) study, evaluate, and report on programs initiated by state and local agencies to
74     address reducing recidivism, including changes in penalties and sentencing guidelines intended
75     to reduce recidivism, costs savings associated with the reduction in the number of inmates, and
76     evaluation of expenses and resources needed to meet goals regarding the use of treatment as an
77     alternative to incarceration, as resources allow;
78          (e) study, evaluate, and report on policies, procedures, and programs of other
79     jurisdictions which have effectively reduced crime;
80          (f) identify and promote the implementation of specific policies and programs the
81     commission determines will significantly reduce crime in Utah;
82          (g) provide analysis and recommendations on all criminal and juvenile justice
83     legislation, state budget, and facility requests, including program and fiscal impact on all
84     components of the criminal and juvenile justice system;
85          (h) provide analysis, accountability, recommendations, and supervision for state and
86     federal criminal justice grant money;
87          (i) provide public information on the criminal and juvenile justice system and give
88     technical assistance to agencies or local units of government on methods to promote public
89     awareness;
90          (j) promote research and program evaluation as an integral part of the criminal and
91     juvenile justice system;
92          (k) provide a comprehensive criminal justice plan annually;
93          (l) review agency forecasts regarding future demands on the criminal and juvenile
94     justice systems, including specific projections for secure bed space;
95          (m) promote the development of criminal and juvenile justice information systems that
96     are consistent with common standards for data storage and are capable of appropriately sharing
97     information with other criminal justice information systems by:
98          (i) developing and maintaining common data standards for use by all state criminal
99     justice agencies;
100          (ii) annually performing audits of criminal history record information maintained by
101     state criminal justice agencies to assess their accuracy, completeness, and adherence to
102     standards;
103          (iii) defining and developing state and local programs and projects associated with the
104     improvement of information management for law enforcement and the administration of
105     justice; and
106          (iv) establishing general policies concerning criminal and juvenile justice information
107     systems and making rules as necessary to carry out the duties under Subsection (1)(k) and this
108     Subsection (1)(m);
109          (n) allocate and administer grants, from money made available, for approved education
110     programs to help prevent the sexual exploitation of children;
111          (o) allocate and administer grants funded from money from the Law Enforcement
112     Operations Account created in Section 51-9-411 for law enforcement operations and programs
113     related to reducing illegal drug activity and related criminal activity;
114          (p) request, receive, and evaluate data and recommendations collected and reported by
115     agencies and contractors related to policies recommended by the commission regarding
116     recidivism reduction;
117          (q) establish and administer a performance incentive grant program that allocates funds
118     appropriated by the Legislature to programs and practices implemented by counties that reduce
119     recidivism and reduce the number of offenders per capita who are incarcerated;
120          (r) oversee or designate an entity to oversee the implementation of juvenile justice
121     reforms;
122          (s) make rules and administer the juvenile holding room standards and juvenile jail
123     standards to align with the Juvenile Justice and Delinquency Prevention Act requirements
124     pursuant to 42 U.S.C. Sec. 5633;
125          (t) allocate and administer grants, from money made available, for pilot qualifying
126     education programs; and
127          (u) oversee the trauma-informed justice program described in Section 63M-7-209[;
128     and].
129          [(v) administer the Child Welfare Parental Defense Program in accordance with
130     Sections 63M-7-211, 63M-7-211.1, and 63M-7-211.2.]
131          (2) If the commission designates an entity under Subsection (1)(r), the commission
132     shall ensure that the membership of the entity includes representation from the three branches
133     of government and, as determined by the commission, representation from relevant stakeholder
134     groups across all parts of the juvenile justice system, including county representation.
135          Section 2. Section 78A-6-1111 is amended to read:
136          78A-6-1111. Order for indigent defense service or guardian ad litem.
137          [(1) A court shall order indigent defense services for a minor, parent, or legal guardian
138     as provided by Title 78B, Chapter 22, Indigent Defense Act.]
139          (1) A court shall order indigent defense services in accordance with Title 78B, Chapter
140     22, Indigent Defense Act, for a minor, parent, or legal guardian facing an action filed by a
141     private party or the state under this title.
142          (2) (a) In any action under Part 3, Abuse, Neglect, and Dependency Proceedings, or
143     Part 5, Termination of Parental Rights Act, the child shall be represented by a guardian ad
144     litem in accordance with Sections 78A-6-317 and 78A-6-902.
145          (b) The child shall [also] be represented by an attorney guardian ad litem in other
146     actions initiated under this chapter when appointed by the court under Section 78A-6-902 or as
147     otherwise provided by law.
148          Section 3. Section 78B-6-112 is amended to read:
149          78B-6-112. District court jurisdiction over termination of parental rights
150     proceedings.
151          (1) A district court has jurisdiction to terminate parental rights in a child if the party
152     [who] that filed the petition is seeking to terminate parental rights in the child for the purpose
153     of facilitating the adoption of the child.
154          (2) A petition to terminate parental rights under this section may be:
155          (a) joined with a proceeding on an adoption petition; or
156          (b) filed as a separate proceeding before or after a petition to adopt the child is filed.
157          (3) A court may enter a final order terminating parental rights before a final decree of
158     adoption is entered.
159          (4) (a) Nothing in this section limits the jurisdiction of a juvenile court relating to
160     proceedings to terminate parental rights as described in Section 78A-6-103.
161          (b) This section does not grant jurisdiction to a district court to terminate parental
162     rights in a child if the child is under the jurisdiction of the juvenile court in a pending abuse,
163     neglect, dependency, or termination of parental rights proceeding.
164          (5) The district court may terminate an individual's parental rights in a child if:
165          (a) the individual executes a voluntary consent to adoption, or relinquishment for
166     adoption, of the child, in accordance with:
167          (i) the requirements of this chapter; or
168          (ii) the laws of another state or country, if the consent is valid and irrevocable;
169          (b) the individual is an unmarried biological father who is not entitled to consent to
170     adoption, or relinquishment for adoption, under Section 78B-6-120 or 78B-6-121;
171          (c) the individual:
172          (i) received notice of the adoption proceeding relating to the child under Section
173     78B-6-110; and
174          (ii) failed to file a motion for relief, under Subsection 78B-6-110(6), within 30 days
175     after the day on which the individual was served with notice of the adoption proceeding;
176          (d) the court finds, under Section 78B-15-607, that the individual is not a parent of the
177     child; or
178          (e) the individual's parental rights are terminated on grounds described in Title 78A,
179     Chapter 6, Part 5, Termination of Parental Rights Act, [if terminating the individual's parental
180     rights] and termination is in the best interests of the child.
181          (6) The court shall appoint an indigent defense service provider[, under] in accordance
182     with Title 78B, Chapter 22, Indigent Defense Act, to represent [a party] an individual who
183     faces any action initiated by a private party under Title 78A, Chapter 6, Part 5, Termination of
184     Parental Rights Act, or whose parental rights are subject to termination under this section.
185          (7) If a county incurs expenses in providing indigent defense services to an indigent
186     individual facing any action initiated by a private party under Title 78A, Chapter 6, Part 5,
187     Termination of Parental Rights Act, or termination of parental rights under this section, the
188     county may apply for reimbursement from the Utah Indigent Defense Commission [under] in
189     accordance with Section 78B-22-406.
190          (8) A petition filed under this section is subject to the procedural requirements of this
191     chapter.
192          Section 4. Section 78B-22-102 is amended to read:
193          78B-22-102. Definitions.
194          As used in this chapter:
195          (1) "Account" means the Indigent Defense Resources Restricted Account created in
196     Section 78B-22-405.
197          (2) "Board" means the Indigent Defense Funds Board created in Section 78B-22-501.
198          (3) "Commission" means the Utah Indigent Defense Commission created in Section
199     78B-22-401.
200          (4) "Director" means the director of the Office of Indigent Defense Services, created in
201     Section 78B-22-451, who is appointed in accordance with Section 78B-22-453.
202          [(4)] (5) (a) "Indigent defense resources" means the resources necessary to provide an
203     effective defense for an indigent individual, including the costs for a competent investigator,
204     expert witness, scientific or medical testing, transcripts, and printing briefs.
205          (b) "Indigent defense resources" does not include an indigent defense service provider.
206          [(5)] (6) "Indigent defense service provider" means an attorney or entity appointed to
207     represent an indigent individual pursuant to:
208          (a) a contract with an indigent defense system to provide indigent defense services; or
209          (b) an order issued by the court under Subsection 78B-22-203(2)(a).
210          [(6)] (7) "Indigent defense services" means:
211          (a) the representation of an indigent individual by an indigent defense service provider;
212     and
213          (b) the provision of indigent defense resources for an indigent individual.
214          [(7)] (8) "Indigent defense system" means:
215          (a) a city or town that is responsible for providing indigent defense services [in the
216     city's or town's justice court];
217          (b) a county that is responsible for providing indigent defense services in the district
218     court, juvenile court, [or] and the county's justice courts; or
219          (c) an interlocal entity, created pursuant to Title 11, Chapter 13, Interlocal Cooperation
220     Act, that is responsible for providing indigent defense services according to the terms of an
221     agreement between a county, city, or town.
222          [(8)] (9) "Indigent individual" means:
223          (a) a minor who is:
224          (i) arrested and admitted into detention for an offense under Section 78A-6-103;
225          (ii) charged by petition or information in the juvenile or district court; or
226          (iii) described in this Subsection [(8)] (9)(a), who is appealing [a first appeal from] an
227     adjudication or other final court action; and
228          (b) an individual listed in Subsection 78B-22-201(1) who is found indigent pursuant to
229     Section 78B-22-202.
230          [(9)] (10) "Minor" means the same as that term is defined in Section 78A-6-105.
231          (11) "Office" means the Office of Indigent Defense Services created in Section
232     78B-22-451.
233          [(10)] (12) "Participating county" means a county that complies with this chapter for
234     participation in the Indigent Aggravated Murder Defense Trust Fund as provided in Sections
235     78B-22-702 and 78B-22-703.
236          Section 5. Section 78B-22-201 is amended to read:
237          78B-22-201. Right to counsel.
238          (1) A court shall advise the following of the individual's right to counsel when the
239     individual first appears before the court:
240          (a) an adult charged with a criminal offense the penalty for which includes the
241     possibility of incarceration regardless of whether actually imposed;
242          (b) a parent or legal guardian facing [any] an action initiated by the state under:
243          (i) Title 78A, Chapter 6, Part 3, Abuse, Neglect, and Dependency Proceedings;
244          (ii) Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
245          (iii) Title 78A, Chapter 6, Part 10, Adult Offenses; [or]
246          [(iv) Section 78B-6-112; or]
247          (c) a parent or legal guardian facing an action initiated by any party under:
248          (i) Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
249          (ii) Section 78B-6-112; or
250          [(c)] (d) an individual described in this Subsection (1), who is appealing [a first appeal
251     from] a conviction or other final court action.
252          (2) If an individual described in Subsection (1) does not knowingly and voluntarily
253     waive the right to counsel, the court shall determine whether the individual is indigent under
254     Section 78B-22-202.
255          Section 6. Section 78B-22-401 is amended to read:
256          78B-22-401. Utah Indigent Defense Commission -- Creation -- Purpose.
257          (1) There is created the Utah Indigent Defense Commission within the State
258     Commission on Criminal and Juvenile Justice [the "Utah Indigent Defense Commission."].
259          (2) The purpose of the commission is to assist:
260          (a) the state in meeting the state's obligations for the provision of indigent defense
261     services, consistent with the United States Constitution, the Utah Constitution, and the Utah
262     Code[.]; and
263          (b) the office with carrying out the statutory duties assigned to the commission and
264     office.
265          Section 7. Section 78B-22-402 is amended to read:
266          78B-22-402. Commission members -- Member qualifications -- Terms -- Vacancy.
267          (1) (a) The commission is composed of 15 [voting] members [and one ex officio,
268     nonvoting member].
269          [(a)] (b) The governor, with the consent of the Senate, shall appoint the following [13
270     voting] 11 members:
271          (i) two practicing criminal defense attorneys recommended by the Utah Association of
272     Criminal Defense Lawyers;
273          (ii) one attorney practicing in juvenile delinquency defense recommended by the Utah
274     Association of Criminal Defense Lawyers;
275          (iii) one attorney practicing in the area of parental defense, recommended by an entity
276     funded under the Child Welfare Parental Defense Program created in Section 78B-22-802;
277          [(iii) an] (iv) one attorney representing minority interests recommended by the Utah
278     Minority Bar Association;
279          [(iv)] (v) one member recommended by the Utah Association of Counties from a
280     county of the first or second class;
281          [(v)] (vi) one member recommended by the Utah Association of Counties from a
282     county of the third through sixth class;
283          [(vi)] (vii) a director of a county public defender organization recommended by the
284     Utah Association of Criminal Defense Lawyers;
285          [(vii)] (viii) two members recommended by the Utah League of Cities and Towns from
286     its membership; and
287          [(viii) a] (ix) one retired judge recommended by the Judicial Council[;].
288          [(ix) one attorney practicing in the area of parental defense, recommended by an entity
289     funded under the Child Welfare Parental Defense Program created in Section 63M-7-211; and]
290          [(x)] (c) The speaker of the House of Representatives and the president of the Senate
291     shall appoint two members of the Utah Legislature, one from the House of Representatives and
292     one from the Senate[, selected jointly by the Speaker of the House and President of the Senate].
293          [(b)] (d) The Judicial Council shall appoint a [voting] member from the Administrative
294     Office of the Courts.
295          [(c)] (e) The executive director of the State Commission on Criminal and Juvenile
296     Justice or the executive director's designee is a [voting] member of the commission.
297          [(d) The director of the commission, appointed under Section 78B-22-403, is an ex
298     officio, nonvoting member of the commission.]
299          (2) A member appointed by the governor shall serve a four-year term, except as
300     provided in Subsection (3).
301          (3) The governor shall stagger the initial terms of appointees so that approximately half
302     of the members appointed by the governor are appointed every two years.
303          (4) A member appointed to the commission shall have significant experience in
304     indigent criminal defense , parental defense, or juvenile defense in delinquency proceedings or
305     have otherwise demonstrated a strong commitment to providing effective representation in
306     indigent defense services.
307          (5) [A person] An individual who is currently employed solely as a criminal
308     prosecuting attorney may not serve as a member of the commission .
309          (6) A commission member shall hold office until the member's successor is appointed.
310          (7) The commission may remove a member for incompetence, dereliction of duty,
311     malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
312          (8) If a vacancy occurs in the membership for any reason, a replacement shall be
313     appointed for the remaining unexpired term in the same manner as the original appointment.
314          (9) (a) The commission shall [annually] elect annually a chair from the commission's
315     membership to serve a one-year term.
316          (b) A commission member may not serve as chair of the commission for more than
317     three consecutive terms.
318          (10) A member may not receive compensation or benefits for the member's service, but
319     may receive per diem and travel expenses in accordance with:
320          (a) Section 63A-3-106;
321          (b) Section 63A-3-107; and
322          (c) rules made by the Division of Finance [pursuant to] in accordance with Sections
323     63A-3-106 and 63A-3-107.
324          (11) (a) A majority of the members of the commission constitutes a quorum.
325          (b) If a quorum is present, the action of a majority of the voting members present
326     constitutes the action of the commission.
327          Section 8. Section 78B-22-404 is amended to read:
328          78B-22-404. Powers and duties of the commission.
329          (1) The commission shall:
330          (a) adopt minimum guidelines for an indigent defense system to ensure the effective
331     representation of indigent individuals consistent with the requirements of the United States
332     Constitution, the Utah Constitution, and the Utah Code, which guidelines at a minimum shall
333     address the following:
334          (i) an indigent defense system shall ensure that in providing indigent defense services:
335          (A) an indigent individual receives conflict-free indigent defense services; and
336          (B) there is a separate contract for each type of indigent defense service; and
337          (ii) an indigent defense system shall ensure an indigent defense service provider has:
338          (A) the ability to exercise independent judgment without fear of retaliation and is free
339     to represent an indigent individual based on the indigent defense service provider's own
340     independent judgment;
341          (B) adequate access to indigent defense resources;
342          (C) the ability to provide representation to accused individuals in criminal cases at the
343     critical stages[, and at the] of proceedings, and at all stages to indigent individuals in juvenile
344     delinquency and child welfare proceedings;
345          (D) a workload that allows for sufficient time to meet with clients, investigate cases,
346     file appropriate documents with the courts, and otherwise provide effective assistance of
347     counsel to each client;
348          (E) adequate compensation without financial disincentives;
349          (F) appropriate experience or training in the area for which the indigent defense service
350     provider is representing indigent individuals;
351          (G) compensation for legal training and education in the areas of the law relevant to the
352     types of cases for which the indigent defense service provider is representing indigent
353     individuals; and
354          (H) the ability to meet the obligations of the Utah Rules of Professional Conduct,
355     including expectations on client communications and managing conflicts of interest;
356          (b) encourage and aid indigent defense systems in the state in the regionalization of
357     indigent defense services to provide for effective and efficient representation to the indigent
358     individuals;
359          [(c) identify and collect data from any source, which is necessary for the commission
360     to:]
361          [(i) aid, oversee, and review compliance by indigent defense systems with the
362     commission's minimum guidelines for the effective representation of indigent individuals; and]
363          [(ii) provide reports regarding the operation of the commission and the provision of
364     indigent defense services by indigent defense systems in the state;]
365          [(d) assist indigent defense systems by reviewing contracts and other agreements, to
366     ensure compliance with the commission's minimum guidelines for effective representation of
367     indigent individuals;]
368          [(e) investigate, audit, and review the provision of indigent defense services to ensure
369     compliance with the commission's minimum guidelines for the effective representation of
370     indigent individuals;]
371          [(f) establish procedures for the receipt and acceptance of complaints regarding the
372     provision of indigent defense services in the state;]
373          [(g) establish procedures to award grants to indigent defense systems under Section
374     78B-22-406 consistent with the commission's minimum guidelines for the effective
375     representation of indigent individuals and appropriations by the state;]
376          [(h)] (c) emphasize the importance of ensuring constitutionally effective indigent
377     defense services;
378          [(i)] (d) encourage members of the judiciary to provide input regarding the delivery of
379     indigent defense services; and
380          [(j)] (e) oversee individuals and entities involved in providing indigent defense
381     services[;].
382          [(k) annually report to the governor, Legislature, Judiciary Interim Committee, and
383     Judicial Council, regarding:]
384          [(i) the operations of the commission;]
385          [(ii) the operations of the indigent defense systems in the state; and]
386          [(iii) compliance with the commission's minimum guidelines by indigent defense
387     systems receiving grants from the commission;]
388          [(l) submit recommendations for improving indigent defense services in the state, to
389     legislative, executive, and judicial leadership; and]
390          [(m) publish an annual report on the commission's website.]
391          (2) The commission may:
392          (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
393     Rulemaking Act, to carry out the commission's duties under this part[.];
394          (b) assign duties related to indigent defense services to the office to assist the
395     commission with the commission's statutory duties; and
396          (c) request supplemental appropriations from the Legislature to address a deficit in the
397     Child Welfare Parental Defense Fund created in Section 78B-22-804.
398          Section 9. Section 78B-22-406 is amended to read:
399          78B-22-406. Indigent defense services grant program.
400          (1) The commission may award grants to supplement local spending by an indigent
401     defense system for indigent defense.
402          [(2) Commission grant money may be used for the following expenses:]
403          (2) The commission may use grant money:
404          (a) to assist an indigent defense system to provide indigent defense services that meet
405     the commission's minimum guidelines for the effective representation of indigent individuals;
406          (b) [the establishment and maintenance of] to establish and maintain local indigent
407     defense data collection systems;
408          (c) to provide indigent defense services in addition to [those] indigent defense services
409     that are currently being provided by an indigent defense system; [and]
410          (d) to provide training and continuing legal education for indigent defense service
411     providers[.]; and
412          (e) to pay for indigent defense resources and costs and expenses for parental defense
413     attorneys as described in Subsection 78B-22-804(2).
414          (3) To receive a grant from the commission, an indigent defense system shall
415     demonstrate to the commission's satisfaction that:
416          (a) the indigent defense system has incurred or reasonably anticipates incurring
417     expenses for indigent defense services that are in addition to the indigent defense system's
418     average annual spending on indigent defense services in the three fiscal years immediately
419     preceding the grant application; and
420          (b) a grant from the commission is necessary for the indigent defense system to meet
421     the commission's minimum guidelines for the effective representation of indigent individuals.
422          (4) The commission may revoke a grant if an indigent defense system fails to meet
423     requirements of the grant or any of the commission's minimum guidelines for the effective
424     representation of indigent individuals.
425          Section 10. Section 78B-22-451 is enacted to read:
426     
Part 4a. Office of Indigent Defense Services

427          78B-22-451. Office of Indigent Defense Services -- Creation.
428          There is created the Office of Indigent Defense Services within the State Commission
429     on Criminal and Juvenile Justice.
430          Section 11. Section 78B-22-452 is enacted to read:
431          78B-22-452. Duties of the office.
432          (1) The office shall:
433          (a) establish an annual budget for the office for the Indigent Defense Resources
434     Restricted Account created in Section 78B-22-405;
435          (b) assist the commission in performing the commission's statutory duties described in
436     this chapter;
437          (c) identify and collect data that is necessary for the commission to:
438          (i) aid, oversee, and review compliance by indigent defense systems with the
439     commission's minimum guidelines for the effective representation of indigent individuals; and
440          (ii) provide reports regarding the operation of the commission and the provision of
441     indigent defense services by indigent defense systems in the state;
442          (d) assist indigent defense systems by reviewing contracts and other agreements, to
443     ensure compliance with the commission's minimum guidelines for effective representation of
444     indigent individuals;
445          (e) establish procedures for the receipt and acceptance of complaints regarding the
446     provision of indigent defense services in the state;
447          (f) establish procedures to award grants to indigent defense systems under Section
448     78B-22-406 that are consistent with the commission's minimum guidelines;
449          (g) assist the commission in developing and reviewing advisory caseload guidelines
450     and procedures;
451          (h) investigate, audit, and review the provision of indigent defense services to ensure
452     compliance with the commission's minimum guidelines for the effective representation of
453     indigent individuals;
454          (i) administer the Child Welfare Parental Defense Program in accordance with Part 8,
455     Child Welfare Parental Defense Program;
456          (j) annually report to the governor, Legislature, Judiciary Interim Committee, and
457     Judicial Council, regarding:
458          (i) the operations of the commission;
459          (ii) the operations of the indigent defense systems in the state; and
460          (iii) compliance with the commission's minimum guidelines by indigent defense
461     systems receiving grants from the commission;
462          (k) submit recommendations to the commission for improving indigent defense
463     services in the state;
464          (l) publish an annual report on the commission's website; and
465          (m) perform all other duties assigned by the commission related to indigent defense
466     services.
467          (2) The office may enter into contracts and accept, allocate, and administer funds and
468     grants from any public or private person to accomplish the duties of the office.
469          (3) Any contract entered into under this part shall require that indigent defense services
470     are provided in a manner consistent with the commission's minimum guidelines implemented
471     under Section 78B-22-404.
472          Section 12. Section 78B-22-453, which is renumbered from Section 78B-22-403 is
473     renumbered and amended to read:
474          [78B-22-403].      78B-22-453. Director -- Qualifications -- Staff.
475          (1) The [commission] executive director of the State Commission on Criminal and
476     Juvenile Justice shall appoint a director to carry out the [following duties:] duties of the office
477     described in Section 78B-22-452.
478          [(a) establish an annual budget;]
479          [(b) assist the commission in performing the commission's statutory duties;]
480          [(c) assist the commission in developing and regularly reviewing advisory caseload
481     guidelines and procedures; and]
482          [(d) perform all other duties as assigned.]
483          (2) The director shall be an active member of the Utah State Bar with an appropriate
484     background and experience to serve as the full-time director.
485          (3) The director shall hire staff as necessary to carry out the duties of the [commission]
486     office as described in Section 78B-22-452, including:
487          (a) one individual who is an active member of the Utah State Bar to serve as a full-time
488     assistant director; and
489          (b) one individual with data collection and analysis skills [to carry out duties as
490     outlined in Subsection 78B-22-404(1)(c)].
491          [(4) The commission in appointing the director, and the director in hiring the assistant
492     director, shall give a preference to individuals]
493          (4) When appointing the director of the office under Subsection (1), the executive
494     director of the State Commission on Criminal and Juvenile Justice shall give preference to an
495     individual with experience in adult criminal defense, child welfare parental defense, or juvenile
496     delinquency defense.
497          (5) When hiring the assistant director, the director shall give preference to an
498     individual with experience in adult criminal defense, child welfare parental defense, or juvenile
499     delinquency defense.
500          Section 13. Section 78B-22-801 is enacted to read:
501     
Part 8. Child Welfare Parental Defense Program

502          78B-22-801. Definitions.
503          As used in this part:
504          (1) "Child welfare case" means a proceeding under Title 78A, Chapter 6, Part 3,
505     Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act.
506          (2) "Contracted parental defense attorney" means an attorney who represents an
507     indigent individual who is a parent in a child welfare case under a contract with the office or a
508     contributing county.
509          (3) "Contributing county" means a county that complies with this part for participation
510     in the Child Welfare Parental Defense Fund described in Section 78B-22-804.
511          (4) "Fund" means the Child Welfare Parental Defense Fund created in Section
512     78B-22-804.
513          (5) "Program" means the Child Welfare Parental Defense Program created in Section
514     78B-22-802.
515          Section 14. Section 78B-22-802, which is renumbered from Section 63M-7-211 is
516     renumbered and amended to read:
517          [63M-7-211].      78B-22-802. Child Welfare Parental Defense Program --
518     Creation -- Duties -- Administrator -- Annual report -- Budget.
519          [(1) As used in this section and Sections 63M-7-211.1 and 63M-7-211.2:]
520          [(a) "Child welfare case" means a proceeding under Title 78A, Chapter 6, Part 3,
521     Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act.]
522          [(b) "Commission" means the Commission on Criminal and Juvenile Justice created in
523     Section 63M-7-201.]
524          [(c) "Contracted parental defense attorney" means a parental defense attorney who is
525     under contract with the commission to provide parental defense in a child welfare case.]
526          [(d) "Executive director" means the executive director of the commission appointed
527     under Section 63M-7-203.]
528          [(e) "Fund" means the Child Welfare Parental Defense Fund established in Section
529     63M-7-211.2.]
530          [(f) "Parental defense attorney" means an attorney, law firm, or group of attorneys
531     who:]
532          [(i) are authorized to practice law in the state; and]
533          [(ii) provide legal representation under contract with the commission, or a county in the
534     state, to a parent who is a party in a child welfare case.]
535          [(g) "Program" means the Child Welfare Parental Defense Program created in this
536     section.]
537          [(2)] (1) There is created within the [commission] office the Child Welfare Parental
538     Defense Program.
539          [(3) The commission shall:]
540          [(a) administer and enforce this section;]
541          [(b) manage the operation and budget of the program;]
542          [(c) provide assistance and advice to parental defense attorneys;]
543          [(d) develop and provide educational and training programs for parental defense
544     attorneys; and]
545          [(e) provide information and advice to assist a parental defense attorney to comply with
546     the attorney's professional, contractual, and ethical duties.]
547          [(4) The commission may]
548          (2) (a) The office shall:
549          (i) administer and enforce the program in accordance with this part;
550          (ii) manage the operation and budget of the program;
551          (iii) develop and provide educational and training programs for contracted parental
552     defense attorneys; and
553          (iv) provide information and advice to assist a contracted parental defense attorney to
554     comply with the attorney's professional, contractual, and ethical duties.
555          (b) In administering the program, the office shall contract with:
556          [(a)] (i) a person who is qualified to perform the program duties under this section; and
557          [(b)] (ii) an attorney [authorized to practice law in the state], as an independent
558     contractor, [to serve as a parental defense attorney under this section.] in accordance with
559     Section 78B-22-803.
560          [(5) (a) On or before October 1 of each year, the executive director shall report to the
561     governor and the Child Welfare Legislative Oversight Panel regarding the preceding fiscal year
562     on the operations, activities, and goals of the program.]
563          [(b)] (3) (a) The [executive] director shall prepare a budget of:
564          (i) the administrative expenses for the program; and
565          (ii) the amount estimated to fund needed contracts and other costs.
566          [(c) The professional legislative staff may include summary data and nonidentifying
567     information in the staff's audits and reports to the Legislature.]
568          (b) On or before October 1 of each year, the director shall report to the governor and
569     the Child Welfare Legislative Oversight Panel regarding the preceding fiscal year on the
570     operations, activities, and goals of the program.
571          [(6) (a) (i) Notwithstanding Title 63G, Chapter 2, Government Records Access and
572     Management Act, and except as provided in Subsection (6)(b), a record of a contracted parental
573     defense attorney is protected and may not be released or made public upon subpoena, search
574     warrant, discovery proceedings, or otherwise.]
575          [(ii) A record of a contracted parental defense attorney is subject to legislative
576     subpoena, under Title 36, Chapter 14, Legislative Subpoena Powers.]
577          [(b) The Legislature shall maintain a record released in accordance with Subsection
578     (6)(a)(ii) as confidential.]     
579          Section 15. Section 78B-22-803, which is renumbered from Section 63M-7-211.1 is
580     renumbered and amended to read:
581          [63M-7-211.1].      78B-22-803. Child welfare parental defense contracts.
582          (1) (a) The [commission] office may enter into a contract with [a parental defense] an
583     attorney to provide indigent defense services for [an indigent] a parent who is the subject of a
584     petition alleging abuse, neglect, or dependency, and requires [a parental defense attorney
585     under] indigent defense services under Section 78A-6-1111.
586          (b) [Payment] The office shall make payment for the representation, costs, and
587     expenses of a contracted parental defense attorney [shall be made] from the Child Welfare
588     Parental Defense Fund in accordance with Section [63M-7-211.2] 78B-22-804.
589          [(c) The parental defense attorney shall maintain the minimum qualifications as
590     provided by this section.]
591          [(2) A contracted parental defense attorney shall:]
592          [(a) adequately prepare for and attend all court hearings, including initial and continued
593     shelter hearings and mediations;]
594          [(b) fully advise the client of the nature of the proceedings and of the client's rights,
595     communicate to the client any offers of settlement or compromise, and advise the client
596     regarding the reasonably foreseeable consequences of any course of action in the proceedings;]
597          [(c) be reasonably available to consult with the client outside of court proceedings;]
598          [(d) where attendance is reasonably necessary, attend meetings regarding the client's
599     case with representatives of one or more of the Division of Child and Family Services, the
600     Office of the Attorney General, or the Office of Guardian Ad Litem;]
601          [(e) represent the interest of the client at all stages of the proceedings before the trial
602     court, and on appeal as required by law; and]
603          [(f) participate in the training courses and otherwise maintain the standards described
604     in Subsection (4).]
605          [(3) If the commission enters into a contract with a firm to provide parental defense
606     attorney services under this section, the contract shall require that each attorney in the firm who
607     will provide representation of a parent in a child welfare case under the contract perform the
608     duties described in Subsection (2).]
609          [(4)] (2) (a) Except as [otherwise] provided in Subsection [(4)] (2)(b), a contracted
610     parental defense attorney shall:
611          (i) complete a basic training course provided by the [program] office;
612          (ii) provide parental defense services consistent with the commission's minimum
613     guidelines described in Section 78B-22-404;
614          [(ii)] (iii) have experience in child welfare cases; and
615          [(iii)] (iv) participate each calendar year in continuing legal education courses
616     providing no fewer than eight hours of instruction in child welfare law.
617          (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
618     commission may, by rule, exempt from the requirements of Subsection [(4)] (2)(a) an attorney
619     who has equivalent training or adequate experience.
620          Section 16. Section 78B-22-804, which is renumbered from Section 63M-7-211.2 is
621     renumbered and amended to read:
622          [63M-7-211.2].      78B-22-804. Child Welfare Parental Defense Fund --
623     Contracts for coverage by the Child Welfare Parental Defense Fund.
624          (1) There is created an expendable special revenue fund known as the "Child Welfare
625     Parental Defense Fund."
626          (2) Subject to availability, the [commission] office may make distributions from the
627     fund [as required in this section or Section 63M-7-211 or 63M-7-211.1] for the following
628     purposes:
629          (a) to pay for [the representation, costs, expert witness fees, and expenses of] indigent
630     defense resources for contracted parental defense attorneys [who are under contract with the
631     commission to provide parental defense in child welfare cases for an indigent parent that is the
632     subject of a petition alleging abuse, neglect, or dependency];
633          (b) for administrative costs [under this section or Section 63M-7-211 or 63M-7-211.1]
634     of the program; and
635          (c) for reasonable expenses directly related to the functioning of the program, including
636     training and travel expenses.
637          (3) The fund consists of:
638          (a) appropriations made to the fund by the Legislature;
639          (b) interest and earnings from the investment of fund money;
640          (c) proceeds deposited by [participating] contributing counties under this section; and
641          (d) private contributions to the fund.
642          (4) The state treasurer shall invest the money in the fund by following the procedures
643     and requirements of Title 51, Chapter 7, State Money Management Act.
644          (5) (a) If the [commission] office anticipates a deficit in the fund during a fiscal year:
645          (i) the commission [shall] may request an appropriation from the Legislature; and
646          (ii) the Legislature may fund the anticipated deficit through appropriation.
647          (b) If the anticipated deficit is not funded by the Legislature, the [commission] office
648     may request an interim assessment to participating counties as described in Subsection (6) to
649     fund the anticipated deficit.
650          (6) (a) A county legislative body and the [commission] office may annually enter into a
651     [written agreement] contract for the [commission] office to provide parental defense attorney
652     services in the contributing county out of the fund.
653          (b) The [agreement] contract described under Subsection (6)(a) shall:
654          (i) require the contributing county to pay into the fund an amount defined by a formula
655     established by the commission by rule under Title 63G, Chapter 3, Utah Administrative
656     Rulemaking Act; and
657          (ii) provide for revocation of the agreement for failure to pay an assessment on the due
658     date established by the commission by rule under Title 63G, Chapter 3, Utah Administrative
659     Rulemaking Act.
660          (7) (a) After the first year of operation of the fund, any contributing county that elects
661     to initiate participation in the fund, or reestablish participation in the fund after participation
662     was terminated, [shall be] is required to make an equity payment, in addition to the assessment
663     provided in Subsection (5).
664          (b) The commission shall determine the amount of the equity payment described in
665     Subsection (7)(a) by rule established by the commission under Title 63G, Chapter 3, Utah
666     Administrative Rulemaking Act.
667          (8) A contributing county that elects to withdraw from participation in the fund, or
668     whose participation in the fund is revoked due to failure to pay the contributing county's
669     assessment, as described in Subsection (6), when due, shall forfeit any right to any previously
670     paid assessment by the contributing county or coverage from the fund.
671          Section 17. Coordinating S.B. 175 with S.B. 139 -- Substantive and technical
672     amendments.
673          If this S.B. 175 and S.B. 139, Amendments to Indigent Defense, both pass and become
674     law, it is the intent of the Legislature that the Office of Legislative Research and General
675     Counsel shall prepare the Utah Code database for publication as follows:
676          (1) the amendments to Section 78B-22-451 in this bill supersede the amendments to
677     Section 78B-22-451 in S.B. 139;
678          (2) the amendments to Section 78B-22-403, renumbered and amended by this bill,
679     supersede the amendments to Section 78B-22-403, renumbered and amended by S.B. 139;
680          (3) the amendments to Section 78B-22-402 in this bill supersede the amendments to
681     Section 78B-22-402 in S.B. 139;
682          (4) the terminology in Subsection 78B-22-803(2)(a)(ii) in this bill is changed from
683     "minimum guidelines" to "core principles"; and
684          (5) Section 78B-22-452 is modified to read:
685          "78B-22-452. Duties of the office.
686          (1) The office shall:
687          (a) establish an annual budget for the Indigent Defense Resources Restricted Account
688     created in Section 78B-22-405;
689          (b) assist the commission in performing the commission's statutory duties described in
690     this chapter;
691          (c) identify and collect data that is necessary for the commission to:
692          (i) aid, oversee, and review compliance by indigent defense systems with the
693     commission's core principles for the effective representation of indigent individuals; and
694          (ii) provide reports regarding the operation of the commission and the provision of
695     indigent defense services by indigent defense systems in the state;
696          (d) assist indigent defense systems by reviewing contracts and other agreements to
697     ensure compliance with the commission's core principles for the effective representation of
698     indigent individuals;
699          (e) establish procedures for the receipt and acceptance of complaints regarding the
700     provision of indigent defense services in the state;
701          (f) establish procedures to award grants to indigent defense systems under Section
702     78B-22-406 that are consistent with the commission's core principles;
703          (g) assist the commission in developing and reviewing advisory caseload guidelines
704     and procedures;
705          (h) investigate, audit, and review the provision of indigent defense services to ensure
706     compliance with the commission's core principles for the effective representation of indigent
707     individuals;
708          (i) administer the Child Welfare Parental Defense Program in accordance with Part 8,
709     Child Welfare Parental Defense Program;
710          (j) annually report to the governor, Legislature, Judiciary Interim Committee, and
711     Judicial Council, regarding:
712          (i) the operations of the commission;
713          (ii) the operations of the indigent defense systems in the state; and
714          (iii) compliance with the commission's core principles by indigent defense systems
715     receiving grants from the commission;
716          (k) submit recommendations to the commission for improving indigent defense
717     services in the state;
718          (l) publish an annual report on the commission's website; and
719          (m) perform all other duties assigned by the commission related to indigent defense
720     services.
721          (2) The office may enter into contracts and accept, allocate, and administer funds and
722     grants from any public or private person to accomplish the duties of the office.
723          (3) Any contract entered into under this part shall require that indigent defense services
724     are provided in a manner consistent with the commission's core principles implemented under
725     Section 78B-22-404.".
726          Section 18. Coordinating S.B. 175 with S.B. 170 -- Substantive and technical
727     amendments.
728          If this S.B. 175 and S.B. 170, Indigent Defense Amendments, both pass and become
729     law, it is the intent of the Legislature that the Office of Legislative Research and General
730     Counsel shall prepare the Utah Code database for publication as follows:
731          (1) the amendments in Section 78B-22-451 in this bill supersede the amendments to
732     Section 78B-22-451 in S.B. 170;
733          (2) the amendments to Section 78B-22-403, as renumbered and amended by this bill,
734     supersede the amendments to Section 78B-22-403, renumbered and amended by S.B. 170;
735          (3) the amendments to Section 78B-22-402 in this bill supersede the amendments to
736     Section 78B-22-402 in S.B. 170;
737          (4) the terminology in Subsection 78B-22-803(2)(a)(ii) in this bill is changed from
738     "minimum guidelines" to "core principles"; and
739          (5) Section 78B-22-452 is modified to read:
740          "78B-22-452. Duties of the office.
741          (1) The office shall:
742          (a) establish an annual budget for the office for the Indigent Defense Resources
743     Restricted Account created in Section 78B-22-405;
744          (b) assist the commission in performing the commission's statutory duties described in
745     this chapter;
746          (c) identify and collect data that is necessary for the commission to:
747          (i) aid, oversee, and review compliance by indigent defense systems with the
748     commission's core principles for the effective representation of indigent individuals; and
749          (ii) provide reports regarding the operation of the commission and the provision of
750     indigent defense services by indigent defense systems in the state;
751          (d) assist indigent defense systems by reviewing contracts and other agreements, to
752     ensure compliance with the commission's core principles for effective representation of
753     indigent individuals;
754          (e) establish procedures for the receipt and acceptance of complaints regarding the
755     provision of indigent defense services in the state;
756          (f) establish procedures to award grants to indigent defense systems under Section
757     78B-22-406 that are consistent with the commission's core principles;
758          (g) create and enter into contracts consistent with Section 78B-22-454 to provide
759     indigent defense services for an indigent defense inmate who:
760          (i) is incarcerated in a state prison located in a county of the third, fourth, fifth, or sixth
761     class as defined in Section 17-50-501;
762          (ii) is charged with having committed a crime within that state prison; and
763          (iii) has been appointed counsel in accordance with Section 78B-22-203;
764          (h) assist the commission in developing and reviewing advisory caseload guidelines
765     and procedures;
766          (i) investigate, audit, and review the provision of indigent defense services to ensure
767     compliance with the commission's core principles for the effective representation of indigent
768     individuals;
769          (j) administer the Child Welfare Parental Defense Program in accordance with Part 8,
770     Child Welfare Parental Defense Program;
771          (k) annually report to the governor, Legislature, Judiciary Interim Committee, and
772     Judicial Council, regarding:
773          (i) the operations of the commission;
774          (ii) the operations of the indigent defense systems in the state; and
775          (iii) compliance with the commission's core principles by indigent defense systems
776     receiving grants from the commission;
777          (l) submit recommendations to the commission for improving indigent defense services
778     in the state;
779          (m) publish an annual report on the commission's website; and
780          (n) perform all other duties assigned by the commission related to indigent defense
781     services.
782          (2) The office may enter into contracts and accept, allocate, and administer funds and
783     grants from any public or private person to accomplish the duties of the office.
784          (3) Any contract entered into under this part shall require that indigent defense services
785     are provided in a manner consistent with the commission's core principles implemented under
786     Section 78B-22-404.".
787          Section 19. Coordinating S.B. 175 with S.B. 139 and S.B. 170 -- Substantive and
788     technical amendments.
789          If this S.B. 175 and S.B. 139, Amendments to Indigent Defense, and S.B. 170, Indigent
790     Defense Amendments, all pass and become law, it is the intent of the Legislature that the
791     Office of Legislative Research and General Counsel shall prepare the Utah Code database for
792     publication as follows:
793          (1) the amendments in Section 78B-22-451 in this bill supersede the amendments to
794     Section 78B-22-451 in S.B. 139 and S.B. 170;
795          (2) the amendments to Section 78B-22-403, as renumbered and amended by this bill,
796     supersede the amendments to Section 78B-22-403, renumbered and amended by S.B. 139 and
797     S.B. 170;
798          (3) the amendments to Section 78B-22-402 in this bill supersede the amendments to
799     Section 78B-22-402 in S.B. 139 and S.B. 170;
800          (4) the terminology in Subsection 78B-22-803(2)(a)(ii) in this bill is changed from
801     "minimum guidelines" to "core principles"; and
802          (5) Section 78B-22-452 is modified to read:
803          "78B-22-452. Duties of the office.
804          (1) The office shall:
805          (a) establish an annual budget for the office for the Indigent Defense Resources
806     Restricted Account created in Section 78B-22-405;
807          (b) assist the commission in performing the commission's statutory duties described in
808     this chapter;
809          (c) identify and collect data that is necessary for the commission to:
810          (i) aid, oversee, and review compliance by indigent defense systems with the
811     commission's core principles for the effective representation of indigent individuals; and
812          (ii) provide reports regarding the operation of the commission and the provision of
813     indigent defense services by indigent defense systems in the state;
814          (d) assist indigent defense systems by reviewing contracts and other agreements, to
815     ensure compliance with the commission's core principles for effective representation of
816     indigent individuals;
817          (e) establish procedures for the receipt and acceptance of complaints regarding the
818     provision of indigent defense services in the state;
819          (f) establish procedures to award grants to indigent defense systems under Section
820     78B-22-406 that are consistent with the commission's core principles;
821          (g) create and enter into contracts consistent with Section 78B-22-454 to provide
822     indigent defense services for an indigent defense inmate who:
823          (i) is incarcerated in a state prison located in a county of the third, fourth, fifth, or sixth
824     class as defined in Section 17-50-501;
825          (ii) is charged with having committed a crime within that state prison; and
826          (iii) has been appointed counsel in accordance with Section 78B-22-203;
827          (h) assist the commission in developing and reviewing advisory caseload guidelines
828     and procedures;
829          (i) investigate, audit, and review the provision of indigent defense services to ensure
830     compliance with the commission's core principles for the effective representation of indigent
831     individuals;
832          (j) administer the Child Welfare Parental Defense Program in accordance with Part 8,
833     Child Welfare Parental Defense Program;
834          (k) annually report to the governor, Legislature, Judiciary Interim Committee, and
835     Judicial Council, regarding:
836          (i) the operations of the commission;
837          (ii) the operations of the indigent defense systems in the state; and
838          (iii) compliance with the commission's core principles by indigent defense systems
839     receiving grants from the commission;
840          (l) submit recommendations to the commission for improving indigent defense services
841     in the state;
842          (m) publish an annual report on the commission's website; and
843          (n) perform all other duties assigned by the commission related to indigent defense
844     services.
845          (2) The office may enter into contracts and accept, allocate, and administer funds and
846     grants from any public or private person to accomplish the duties of the office.
847          (3) Any contract entered into under this part shall require that indigent defense services
848     are provided in a manner consistent with the commission's core principles implemented under
849     Section 78B-22-404.".