Senator Todd D. Weiler proposes the following substitute bill:


1     
INDIGENT DEFENSE AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Ryan D. Wilcox

5     
Senate Sponsor: Todd D. Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to indigent defense.
10     Highlighted Provisions:
11          This bill:
12          ▸     clarifies when a court may order indigent defense services and resources;
13          ▸     amends provisions related to the Indigent Aggravated Murder Defense Fund; and
14          ▸     makes technical and conforming changes.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          78B-22-203, as last amended by Laws of Utah 2022, Chapter 281
22          78B-22-302, as enacted by Laws of Utah 2019, Chapter 326
23          78B-22-701, as last amended by Laws of Utah 2022, Chapters 281, 451
24          78B-22-702, as renumbered and amended by Laws of Utah 2019, Chapter 326
25          78B-22-703, as renumbered and amended by Laws of Utah 2019, Chapter 326
26          78B-22-704, as renumbered and amended by Laws of Utah 2019, Chapter 326
27     ENACTS:
28          78B-22-705, Utah Code Annotated 1953
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 78B-22-203 is amended to read:
32          78B-22-203. Order for indigent defense services.
33          (1) (a) A court shall appoint an indigent defense service provider who is employed by
34     an indigent defense system or who has a contract with an indigent defense system to provide
35     indigent defense services for an individual over whom the court has jurisdiction if:
36          (i) the individual is an indigent individual; and
37          (ii) the individual does not have private counsel.
38          (b) An indigent defense service provider appointed by the court under Subsection
39     (1)(a) shall provide indigent defense services for the indigent individual in all court
40     proceedings in the matter for which the indigent defense service provider is appointed.
41          (2) (a) Notwithstanding Subsection (1), the court may order that indigent defense
42     services be provided by an indigent defense service provider who does not have a contract with
43     an indigent defense system if the court finds by clear and convincing evidence that:
44          (i) all the contracted indigent defense service providers:
45          (A) have a conflict of interest; or
46          (B) do not have sufficient expertise to provide indigent defense services for the
47     indigent individual; or
48          (ii) the indigent defense system does not have a contract with an indigent defense
49     service provider for indigent defense services.
50          (b) A court may not order indigent defense services under Subsection (2)(a) unless the
51     court conducts a hearing with proper notice to the indigent defense system by sending notice of
52     the hearing to the county clerk or municipal recorder.
53          (3) (a) A court may order reasonable indigent defense resources for an individual who
54     has retained private counsel only if the court finds by clear and convincing evidence that:
55          (i) the individual is an indigent individual;
56          (ii) the individual would be prejudiced by the substitution of a contracted indigent
57     defense service provider and the prejudice cannot be remedied;
58          (iii) at the time that private counsel was retained, the individual:
59          (A) entered into a written contract with private counsel; and
60          (B) had the ability to pay for indigent defense resources, but no longer has the ability to
61     pay for the indigent defense resources in addition to the cost of private counsel;
62          (iv) there has been an unforeseen change in circumstances that requires indigent
63     defense resources beyond the individual's ability to pay; and
64          (v) any representation under this Subsection (3)(a) is made in good faith and is not
65     calculated to allow the individual or retained private counsel to avoid the requirements of this
66     section.
67          (b) A court may not order indigent defense resources under Subsection (3)(a) until the
68     court conducts a hearing with proper notice to the indigent defense system by sending notice of
69     the hearing to the county clerk or municipal recorder.
70          (c) At the hearing, the court shall conduct an in camera review of:
71          (i) the private counsel contract;
72          (ii) the costs or anticipated costs of the indigent defense resources; and
73          (iii) other relevant records.
74          (4) A court may only order the representation of an indigent individual by an indigent
75     defense service provider in accordance with this section.
76          (5) A court may not order indigent defense resources be provided to an indigent
77     individual, except as provided in:
78          (a) Subsection (3); or
79          (b) Section 78B-22-705.
80          [(4) Except as provided in this section, a court may not order indigent defense
81     services.]
82          Section 2. Section 78B-22-302 is amended to read:
83          78B-22-302. Compensation for indigent defense services.
84          (1) An indigent defense system shall fund indigent defense services ordered by a court
85     [in accordance with] under Section 78B-22-203.
86          (2) An indigent defense system shall ensure that there are adequate funds for indigent
87     defense resources when a court orders indigent defense services under Section 78B-22-203.
88          Section 3. Section 78B-22-701 is amended to read:
89          78B-22-701. Establishment of Indigent Aggravated Murder Defense Fund -- Use
90     of fund -- Compensation for indigent legal defense from fund.
91          (1) [For purposes of this part] As used in this part, "fund" means the Indigent
92     Aggravated Murder Defense Fund.
93          (2) (a) There is established a custodial fund known as the "Indigent Aggravated Murder
94     Defense Fund."
95          (b) The Division of Finance shall disburse money from the fund at the direction of the
96     board and subject to this chapter.
97          (3) The fund consists of:
98          (a) money received from participating counties as provided in Sections 78B-22-702
99     and 78B-22-703;
100          (b) appropriations made to the fund by the Legislature as provided in Section
101     78B-22-703; and
102          (c) interest and earnings from the investment of fund money.
103          (4) The state treasurer shall invest fund money with the earnings and interest accruing
104     to the fund.
105          (5) The fund shall be used to assist participating counties with [financial resources]
106     expenses for indigent defense services, as provided in Subsection (6), to fulfill [their] the
107     constitutional and statutory mandates for the provision of constitutionally effective defense for
108     indigent individuals prosecuted for the violation of state laws in cases involving aggravated
109     murder.
110          (6) Money allocated to or deposited [in this fund shall be] into the fund is used only:
111          (a) to reimburse participating counties for [expenditures made for an attorney
112     appointed to represent] expenses incurred for indigent defense services provided to an indigent
113     individual, other than a state inmate in a state prison, who is prosecuted for aggravated murder
114     in a participating county; and
115          (b) for administrative costs pursuant to Section 78B-22-501.
116          Section 4. Section 78B-22-702 is amended to read:
117          78B-22-702. County participation.
118          (1) (a) A county may participate in the fund subject to the provisions of this chapter.
119          (b) A county that does not participate in the fund, or is not current in the county's
120     assessments for the fund, is ineligible to receive money from the fund.
121          [(b)] (c) The board may revoke a county's participation in the fund if the county fails to
122     pay the county's assessments when due.
123          (2) To participate in the fund, the legislative body of a county shall:
124          (a) adopt a resolution approving participation in the fund and committing that county to
125     fulfill the assessment requirements as set forth in Subsection (3) and Section 78B-22-703; and
126          (b) submit a certified copy of that resolution together with an application to the board.
127          (3) By January 15 of each year, a participating county shall contribute to the fund an
128     amount computed in accordance with Section 78B-22-703.
129          (4) A participating county may withdraw from participation in the fund upon:
130          (a) adoption by the county's legislative body of a resolution to withdraw; and
131          (b) notice to the board by January 1 of the year before withdrawal.
132          (5) A county withdrawing from participation in the fund, or whose participation in the
133     fund has been revoked for failure to pay the county's assessments when due, shall forfeit the
134     right to:
135          (a) any previously [payed] paid assessment;
136          (b) relief from the county's obligation to pay [its] the county's assessment during the
137     period of [its] the county's participation in the fund; and
138          (c) any benefit from the fund, including reimbursement of costs that accrued after the
139     last day of the period for which the county has paid [its] the county's assessment.
140          Section 5. Section 78B-22-703 is amended to read:
141          78B-22-703. County and state obligations.
142          (1) (a) Except as provided in Subsection (1)(b), a participating county shall pay into the
143     fund annually an amount calculated by multiplying the average of the percent of [its] the
144     county's population to the total population of all participating counties and of the percent [its]
145     of the county's taxable value of the locally and centrally assessed property located within that
146     county to the total taxable value of the locally and centrally assessed property to all
147     participating counties by the total fund assessment for that year to be paid by all participating
148     counties as is determined by the board to be sufficient such that it is unlikely that a deficit will
149     occur in the fund in any calendar year.
150          (b) The fund minimum [shall be] is equal to or greater than 50 cents per person of all
151     counties participating.
152          (c) The amount paid by a participating county [pursuant to] under this Subsection (1)
153     [shall be] is the total county obligation for payment of costs [pursuant to] in accordance with
154     Section 78B-22-701.
155          (2) (a) A county that elects to initiate participation in the fund, or reestablish
156     participation in the fund after participation was terminated, is required to make an equity
157     payment in addition to the assessment required by Subsection (1).
158          (b) The equity payment [shall be] is determined by the board and represent what the
159     county's equity in the fund would be if the county had made assessments into the fund for each
160     of the previous two years.
161          (3) If the fund balance after contribution by the state and participating counties is
162     insufficient to replenish the fund annually to at least $250,000, the board by a majority vote
163     may terminate the fund.
164          (4) If the fund is terminated, the remaining money shall continue to be administered
165     and disbursed in accordance with the provision of this chapter until exhausted, at which time
166     the fund shall cease to exist.
167          (5) (a) If the fund runs a deficit during any calendar year, the state is responsible for the
168     deficit.
169          (b) In the calendar year following a deficit year, the board shall increase the assessment
170     required by Subsection (1) by an amount at least equal to the deficit of the previous year, which
171     combined amount becomes the base assessment until another deficit year occurs.
172          (6) In a calendar year in which the fund runs a deficit, or is projected to run a deficit,
173     the board shall request a supplemental appropriation to pay for the deficit from the Legislature
174     in the following general session.
175          (7) The state shall pay any or all of the reasonable and necessary money for the deficit
176     into the fund.
177          Section 6. Section 78B-22-704 is amended to read:
178          78B-22-704. Application and qualification for fund money.
179          (1) A participating county may apply to the board for benefits from the fund if that
180     county has incurred, or reasonably anticipates incurring, expenses [in the defense of] for
181     indigent defense services provided to an indigent individual for an offense involving
182     aggravated murder.
183          (2) An application may not be made nor benefits provided from the fund for a case
184     filed before September 1, 1998.
185          (3) [If] Except as provided in Subsection (4), if the application of a participating
186     county is approved by the board, the board shall negotiate, enter into, and administer a contract
187     [with counsel for the indigent individual and costs incurred for the defense of that indigent
188     individual, including fees for counsel and reimbursement for indigent defense services incurred
189     by an indigent defense service provider] for the cost of indigent defense services with an
190     attorney or entity appointed to represent the indigent individual.
191          (4) The board shall pay an indigent defense service provider with a contract under
192     Subsection (3) for indigent defense resources approved by a court under Section 78B-22-705.
193          [(4)] (5) A nonparticipating county is responsible for paying for indigent defense
194     services in the nonparticipating county and is not eligible for any legislative relief.
195          Section 7. Section 78B-22-705 is enacted to read:
196          78B-22-705. Extraordinary expense -- Motion.
197          (1) If an indigent defense service provider is representing an indigent individual for an
198     offense involving aggravated murder and the indigent defense service provider has a contract
199     with the board under Section 78B-22-704, the indigent defense service provider may file an ex
200     parte motion with the court for an order for the payment of indigent defense resources not
201     covered by the contract between the indigent defense service provider and the board.
202          (2) (a) Except as provided in Subsection (2)(b), an indigent defense service provider
203     shall file an ex parte motion under Subsection (1) before the cost for indigent defense resources
204     is incurred.
205          (b) An indigent defense service provider may file an ex parte motion under Subsection
206     (1) for a cost incurred for indigent defense resources on and after May 14, 2019, but before
207     May 3, 2023.
208          (3) Upon an ex parte motion under this section, the court shall conduct an in camera
209     review of:
210          (a) the indigent defense service provider's contract with the board;
211          (b) the cost, or the anticipated cost, of the indigent defense resources for which the
212     indigent service provider seeks approval; and
213          (c) any other relevant record.
214          (4) The court may order the board to pay for indigent defense resources sought by the
215     indigent defense service provider under this section.