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ATTORNEY GENERAL PROSECUTION REVIEW

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AMENDMENTS

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2022 GENERAL SESSION

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STATE OF UTAH

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Chief Sponsor: Karianne Lisonbee

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Senate Sponsor: Chris H. Wilson

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8     LONG TITLE
9     General Description:
10          This bill amends provisions relating to the duties of the attorney general.
11     Highlighted Provisions:
12          This bill:
13          ▸     describes requirements applicable to a district attorney, county attorney, and a law
14     enforcement agency to provide information and evidence to the attorney general
15     when the attorney general conducts a de novo review of a case;
16          ▸     permits the attorney general to seek a court order to enforce timely compliance with
17     the preceding paragraph; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          36-12-7, as last amended by Laws of Utah 2020, Chapter 343
26          67-5-1, as last amended by Laws of Utah 2021, Chapter 273
27          67-5-1.1, as enacted by Laws of Utah 2018, Chapter 473
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 36-12-7 is amended to read:
31          36-12-7. Legislative Management Committee -- Duties -- Litigation.
32          (1) The Senate or House Management Committee shall:
33          (a) receive legislative resolutions directing studies on legislative matters and may
34     assign these studies to the appropriate interim committee of its house;
35          (b) assign to interim committees of the same house, matters of legislative study not
36     specifically contained in a legislative resolution but considered significant to the welfare of the
37     state;
38          (c) receive requests from interim committees of its house for matters to be included on
39     the study agenda of the requesting committee. Appropriate bases for denying a study include
40     inadequate funding to properly complete the study or duplication of the work;
41          (d) establish a budget account for interim committee day as designated by Legislative
42     Management Committee and for all other legislative committees of its house and allocate to
43     that account sufficient funds to adequately provide for the work of the committee; and
44          (e) designate the time and place for periodic meetings of the interim committees.
45          (2) To maximize the use of legislators' available time, the Senate and House
46     Management Committees should attempt to schedule the committee meetings of their
47     respective houses during the same one or two-day period each month. This does not preclude
48     an interim committee from meeting at any time it determines necessary to complete its
49     business.
50          (3) The Legislative Management Committee shall:
51          (a) employ, after recommendation of the appropriate subcommittee of the Legislative
52     Management Committee, without regard to political affiliation, and subject to approval of a
53     majority vote of both houses, persons qualified for the positions of director of the Office of
54     Legislative Research and General Counsel, legislative fiscal analyst, legislative general
55     counsel, and legislative auditor general. Appointments to these positions shall be for terms of
56     six years subject to renewal under the same procedure as the original appointment. A person
57     may be removed from any of these offices before the expiration of the person's term only by a
58     majority vote of both houses of the Legislature or by a two-thirds vote of the management
59     committee for such causes as inefficiency, incompetency, failure to maintain skills or adequate
60     performance levels, insubordination, misfeasance, malfeasance, or nonfeasance in office. If a
61     vacancy occurs in any of these offices after adjournment of the Legislature, the committee shall
62     appoint an individual to fill the vacancy until such time as the person is approved or rejected by
63     majority vote of the next session of the Legislature;
64          (b) develop policies for personnel management, compensation, and training of all
65     professional legislative staff;
66          (c) develop a policy within the limits of legislative appropriation for the authorization
67     and payment to legislators of compensation and travel expenses, including out-of-state travel;
68          (d) approve special study budget requests of the legislative directors; and
69          (e) assist the speaker-elect of the House of Representatives and the president-elect of
70     the Senate, upon selection by their majority party caucus, to organize their respective houses of
71     the Legislature and assume the direction of the operation of the Legislature in the forthcoming
72     annual general session.
73          (4) (a) The Legislature delegates to the Legislative Management Committee the
74     authority, by means of a majority vote of the committee, to direct the legislative general
75     counsel in matters involving the Legislature's participation in litigation.
76          (b) The Legislature has an unconditional right to intervene in a state court action and
77     may provide evidence or argument, written or oral, if a party to that court action challenges:
78          (i) the constitutionality of a state statute;
79          (ii) the validity of legislation; or
80          (iii) any action of the Legislature.
81          (c) In a federal court action that challenges the constitutionality of a state statute, the
82     validity of legislation, or any action of the Legislature, the Legislature may seek to intervene, to
83     file an amicus brief, or to present argument in accordance with federal rules of procedure.
84          (d) Intervention by the Legislature pursuant to Subsection (4)(b) or (c) does not limit
85     the duty of the attorney general to appear and prosecute legal actions or defend state agencies,
86     officers or employees as otherwise provided by law.
87          (e) In any action in which the Legislature intervenes or participates, legislative counsel
88     and the attorney general shall function independently from each other in the representation of
89     their respective clients.
90          (f) The attorney general shall notify the legislative general counsel of a claim in
91     accordance with Subsection [67-5-1(25)] 67-5-1(1)(y).
92          Section 2. Section 67-5-1 is amended to read:
93          67-5-1. General duties.
94          (1) The attorney general shall:
95          [(1)] (a) perform all duties in a manner consistent with the attorney-client relationship
96     under Section 67-5-17;
97          [(2)] (b) except as provided in Sections 10-3-928 and 17-18a-403, attend the Supreme
98     Court and the Court of Appeals of this state, and all courts of the United States, and prosecute
99     or defend all causes to which the state or any officer, board, or commission of the state in an
100     official capacity is a party, and take charge, as attorney, of all civil legal matters in which the
101     state is interested;
102          [(3)] (c) after judgment on any cause referred to in Subsection [(2)] (1)(b), direct the
103     issuance of process as necessary to execute the judgment;
104          [(4)] (d) account for, and pay over to the proper officer, all money that comes into the
105     attorney general's possession that belongs to the state;
106          [(5)] (e) keep a file of all cases in which the attorney general is required to appear,
107     including any documents and papers showing the court in which the cases have been instituted
108     and tried, and whether they are civil or criminal, and:
109          [(a)] (i) if civil, the nature of the demand, the stage of proceedings, and, when
110     prosecuted to judgment, a memorandum of the judgment and of any process issued if satisfied,
111     and if not satisfied, documentation of the return of the sheriff;
112          [(b)] (ii) if criminal, the nature of the crime, the mode of prosecution, the stage of
113     proceedings, and, when prosecuted to sentence, a memorandum of the sentence and of the
114     execution, if the sentence has been executed, and, if not executed, the reason for the delay or
115     prevention; and
116          [(c)] (iii) deliver this information to the attorney general's successor in office;
117          [(6)] (f) exercise supervisory powers over the district and county attorneys of the state
118     in all matters pertaining to the duties of the district and county attorneys' offices, including the
119     authority [to:] described in Subsection (2);
120          [(a) require a district or county attorney of the state to, upon request, report on the
121     status of public business entrusted to the district or county attorney's charge; or]
122          [(b) review investigation results de novo and file criminal charges, if warranted, in any
123     case involving a first degree felony, if:]
124          [(i) a law enforcement agency submits investigation results to the county or district
125     attorney of the jurisdiction where the incident occurred and the county or district attorney:]
126          [(A) declines to file criminal charges; or]
127          [(B) fails to screen the case for criminal charges within six months of the law
128     enforcement agency's submission of the investigation results; and]
129          [(ii) after consultation with the county or district attorney of the jurisdiction where the
130     incident occurred, the attorney general reasonably believes action by the attorney general would
131     not interfere with an ongoing investigation or prosecution by the county or district attorney of
132     the jurisdiction where the incident occurred;]
133          [(7)] (g) give the attorney general's opinion in writing and without fee, when required,
134     upon any question of law relating to the office of the requester:
135          [(a)] (i) in accordance with Section 67-5-1.1, to the Legislature or either house;
136          [(b)] (ii) to any state officer, board, or commission; and
137          [(c)] (iii) to any county attorney or district attorney;
138          [(8)] (h) when required by the public service or directed by the governor, assist any
139     county, district, or city attorney in the discharge of county, district, or city attorney's duties;
140          [(9)] (i) purchase in the name of the state, under the direction of the state Board of
141     Examiners, any property offered for sale under execution issued upon judgments in favor of or
142     for the use of the state, and enter satisfaction in whole or in part of the judgments as the
143     consideration of the purchases;
144          [(10)] (j) when the property of a judgment debtor in any judgment mentioned in
145     Subsection [(9)] (1)(i) has been sold under a prior judgment, or is subject to any judgment, lien,
146     or encumbrance taking precedence of the judgment in favor of the state, redeem the property,
147     under the direction of the state Board of Examiners, from the prior judgment, lien, or
148     encumbrance, and pay all money necessary for the redemption, upon the order of the state
149     Board of Examiners, out of any money appropriated for these purposes;
150          [(11)] (k) when in the attorney general's opinion it is necessary for the collection or
151     enforcement of any judgment, institute and prosecute on behalf of the state any action or
152     proceeding necessary to set aside and annul all conveyances fraudulently made by the judgment
153     debtors, and pay the cost necessary to the prosecution, when allowed by the state Board of
154     Examiners, out of any money not otherwise appropriated;
155          [(12)] (l) discharge the duties of a member of all official boards of which the attorney
156     general is or may be made a member by the Utah Constitution or by the laws of the state, and
157     other duties prescribed by law;
158          [(13)] (m) institute and prosecute proper proceedings in any court of the state or of the
159     United States to restrain and enjoin corporations organized under the laws of this or any other
160     state or territory from acting illegally or in excess of their corporate powers or contrary to
161     public policy, and in proper cases forfeit their corporate franchises, dissolve the corporations,
162     and wind up their affairs;
163          [(14)] (n) institute investigations for the recovery of all real or personal property that
164     may have escheated or should escheat to the state, and for that purpose, subpoena any persons
165     before any of the district courts to answer inquiries and render accounts concerning any
166     property, examine all books and papers of any corporations, and when any real or personal
167     property is discovered that should escheat to the state, institute suit in the district court of the
168     county where the property is situated for its recovery, and escheat that property to the state;
169          [(15)] (o) administer the Children's Justice Center as a program to be implemented in
170     various counties pursuant to Sections 67-5b-101 through 67-5b-107;
171          [(16)] (p) assist the Constitutional Defense Council as provided in Title 63C, Chapter
172     4a, Constitutional and Federalism Defense Act;
173          [(17)] (q) pursue any appropriate legal action to implement the state's public lands
174     policy established in Section 63C-4a-103;
175          [(18)] (r) investigate and prosecute violations of all applicable state laws relating to
176     fraud in connection with the state Medicaid program and any other medical assistance program
177     administered by the state, including violations of Title 26, Chapter 20, Utah False Claims Act;
178          [(19)] (s) investigate and prosecute complaints of abuse, neglect, or exploitation of
179     patients:
180          [(a)] (i) in health care facilities that receive payments under the state Medicaid
181     program;
182          [(b)] (ii) in board and care facilities, as defined in the federal Social Security Act, 42
183     U.S.C. Sec. 1396b(q)(4)(B), regardless of the source of payment to the board and care facility;
184     and
185          [(c)] (iii) who are receiving medical assistance under the Medicaid program as defined
186     in Section 26-18-2 in a noninstitutional or other setting;
187          [(20) (a)] (t) (i) report at least twice per year to the Legislative Management Committee
188     on any pending or anticipated lawsuits, other than eminent domain lawsuits, that might:
189          [(i)] (A) cost the state more than $500,000; or
190          [(ii)] (B) require the state to take legally binding action that would cost more than
191     $500,000 to implement; and
192          [(b)] (ii) if the meeting is closed, include an estimate of the state's potential financial or
193     other legal exposure in that report;
194          [(21) (a)] (u) (i) submit a written report to the committees described in Subsection
195     [(21)(b)] (1)(u)(ii) that summarizes any lawsuit or decision in which a court or the Office of the
196     Attorney General has determined that a state statute is unconstitutional or unenforceable since
197     the attorney general's last report under this Subsection [(21)] (1)(u), including any:
198          [(i)] (A) settlements reached;
199          [(ii)] (B) consent decrees entered;
200          [(iii)] (C) judgments issued;
201          [(iv)] (D) preliminary injunctions issued;
202          [(v)] (E) temporary restraining orders issued; or
203          [(vi)] (F) formal or informal policies of the Office of the Attorney General to not
204     enforce a law; and
205          [(b)] (ii) at least 30 days before the Legislature's May and November interim meetings,
206     submit the report described in Subsection [(21)(a)] (1)(u)(i) to:
207          [(i)] (A) the Legislative Management Committee;
208          [(ii)] (B) the Judiciary Interim Committee; and
209          [(iii)] (C) the Law Enforcement and Criminal Justice Interim Committee;
210          [(22)] (v) if the attorney general operates the Office of the Attorney General or any
211     portion of the Office of the Attorney General as an internal service fund agency in accordance
212     with Section 67-5-4, submit to the rate committee established in Section 67-5-34:
213          [(a)] (i) a proposed rate and fee schedule in accordance with Subsection 67-5-34(4);
214     and
215          [(b)] (ii) any other information or analysis requested by the rate committee;
216          [(23)] (w) before the end of each calendar year, create an annual performance report for
217     the Office of the Attorney General and post the report on the attorney general's website;
218          [(24)] (x) ensure that any training required under this chapter complies with Title 63G,
219     Chapter 22, State Training and Certification Requirements;
220          [(25)] (y) notify the legislative general counsel in writing within three business days
221     after the day on which the attorney general is officially notified of a claim, regardless of
222     whether the claim is filed in state or federal court, that challenges:
223          [(a)] (i) the constitutionality of a state statute;
224          [(b)] (ii) the validity of legislation; or
225          [(c)] (iii) any action of the Legislature; and
226          [(26) (a)] (z) (i) notwithstanding Title 63G, Chapter 6a, Utah Procurement Code,
227     provide a special advisor to the Office of the Governor and the Office of the Attorney General
228     in matters relating to Native American and tribal issues to:
229          [(i)] (A) establish outreach to the tribes and affected counties and communities; and
230          [(ii)] (B) foster better relations and a cooperative framework; and
231          [(b)] (ii) annually report to the Executive Offices and Criminal Justice Appropriations
232     Subcommittee regarding:
233          [(i)] (A) the status of the work of the special advisor described in Subsection [(26)(a)]
234     (1)(z)(i); and
235          [(ii)] (B) whether the need remains for the ongoing appropriation to fund the special
236     advisor described in Subsection [(26)(a)] (1)(z)(i).
237          (2) (a) The attorney general may require a district attorney or county attorney of the
238     state to, upon request, report on the status of public business entrusted to the district or county
239     attorney's charge.
240          (b) The attorney general may review investigation results de novo and file criminal
241     charges, if warranted, in any case involving a first degree felony, if:
242          (i) a law enforcement agency submits investigation results to the county attorney or
243     district attorney of the jurisdiction where the incident occurred and the county attorney or
244     district attorney:
245          (A) declines to file criminal charges; or
246          (B) fails to screen the case for criminal charges within six months after the law
247     enforcement agency's submission of the investigation results; and
248          (ii) after consultation with the county attorney or district attorney of the jurisdiction
249     where the incident occurred, the attorney general reasonably believes action by the attorney
250     general would not interfere with an ongoing investigation or prosecution by the county attorney
251     or district attorney of the jurisdiction where the incident occurred.
252          (c) If the attorney general decides to conduct a review under Subsection (2)(b), the
253     district attorney, county attorney, and law enforcement agency shall, within 14 days after the
254     day on which the attorney general makes a request, provide the attorney general with:
255          (i) all information relating to the investigation, including all reports, witness lists,
256     witness statements, and other documents created or collected in relation to the investigation;
257          (ii) all recordings, photographs, and other physical or digital media created or collected
258     in relation to the investigation;
259          (iii) access to all evidence gathered or collected in relation to the investigation; and
260          (iv) the identification of, and access to, all officers or other persons who have
261     information relating to the investigation.
262          (d) If a district attorney, county attorney, or law enforcement agency fails to timely
263     comply with Subsection (2)(c), the attorney general may seek a court order compelling
264     compliance.
265          (e) If the attorney general seeks a court order under Subsection (2)(d), the court shall
266     grant the order unless the district attorney, county attorney, or law enforcement agency shows
267     good cause and a compelling interest for not complying with Subsection (2)(c).
268          Section 3. Section 67-5-1.1 is amended to read:
269          67-5-1.1. Written opinion to the Legislature -- Rebuttable presumption.
270          (1) When the Legislature or either house requests the attorney general's written legal
271     opinion in accordance with Subsection [67-5-1(7)] 67-5-1(1)(g):
272          (a) the attorney general shall, applying concepts from the Rules of Professional
273     Conduct contained in the Supreme Court Rules of Professional Practice, identify any potential
274     conflicts of interest in providing the attorney general's legal opinion to the Legislature;
275          (b) if the attorney general identifies a potential conflict of interest under Subsection
276     (1)(a), the attorney general shall, as soon as practicable after the identification:
277          (i) ensure that the attorney general's office provides each entity or individual involved
278     in the potential conflict competent, privileged, and objective advice or representation by
279     establishing:
280          (A) confidentiality procedures; and
281          (B) staffing divisions or other structural or administrative safeguards to screen
282     attorneys participating in the preparation of the attorney general's opinion from participation on
283     behalf of any other entity or individual involved in the potential conflict; and
284          (ii) provide written notice to each entity or individual involved in the potential conflict
285     that describes the screening procedures that the attorney general establishes; and
286          (c) after complying with Subsections (1)(a) and (b), the attorney general shall provide
287     the attorney general's opinion:
288          (i) within 30 days after the day on which the requester makes the request for the
289     opinion; or
290          (ii) by a date upon which the attorney general and the requester agree.
291          (2) There is a presumption that:
292          (a) the attorney general's reasonable compliance with Subsections (1)(a) and (b)
293     satisfies any ethical or professional obligation arising from the potential conflict of interest; and
294          (b) with adequate screening safeguards and procedures in place, the attorney general
295     has an attorney-client relationship with each entity or individual involved in the potential
296     conflict of interest.
297          (3) (a) The attorney general shall comply in good faith with the requirement to provide
298     the opinion in accordance with Subsection [67-5-1(7)] 67-5-1(1)(g) and this section.
299          (b) The attorney general may not invoke the potential conflict of interest or
300     attorney-client privilege as grounds to withhold or refuse to provide the legal opinion required
301     in Subsection [67-5-1(7)] 67-5-1(1)(g) and this section.
302          (c) The Legislature or either house may petition the Utah Supreme Court for an
303     extraordinary writ to obtain the legal opinion if the attorney general does not provide the
304     opinion within the time period described in Subsection (1)(c).