Senator Todd D. Weiler proposes the following substitute bill:


1     
INDIGENT DEFENSE AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd D. Weiler

5     
House Sponsor: Tyler Clancy

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to indigent defense.
10     Highlighted Provisions:
11          This bill:
12          ▸     repeals the Indigent Defense Funds Board;
13          ▸     amends provisions related to assigning an indigent defense service provider to
14     represent an indigent individual;
15          ▸     amends the duties of the Indigent Defense Commission and the Office of Indigent
16     Defense Services to incorporate the duties of the Indigent Defense Funds Board;
17          ▸     amends provisions related to using and administering the Indigent Aggravated
18     Murder Defense Fund;
19          ▸     repeals provisions that allow an indigent defense service provider to file a motion
20     with the court for an order for the payment of extraordinary indigent defense
21     expenses; and
22          ▸     makes technical and conforming changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          78B-22-102, as last amended by Laws of Utah 2022, Chapters 281, 451
30          78B-22-203, as last amended by Laws of Utah 2023, Chapter 182
31          78B-22-404, as last amended by Laws of Utah 2022, Chapter 451
32          78B-22-452, as last amended by Laws of Utah 2021, Chapter 228
33          78B-22-701, as last amended by Laws of Utah 2023, Chapter 182
34          78B-22-702, as last amended by Laws of Utah 2023, Chapter 182
35          78B-22-703, as last amended by Laws of Utah 2023, Chapter 182
36          78B-22-704, as last amended by Laws of Utah 2023, Chapter 182
37     RENUMBERS AND AMENDS:
38          78B-22-701.5, (Renumbered from 78B-22-502, as last amended by Laws of Utah 2020,
39     Chapter 392)
40     REPEALS:
41          78B-22-501, as last amended by Laws of Utah 2022, Chapter 451
42          78B-22-705, as enacted by Laws of Utah 2023, Chapter 182
43     

44     Be it enacted by the Legislature of the state of Utah:
45          Section 1. Section 78B-22-102 is amended to read:
46          78B-22-102. Definitions.
47          As used in this chapter:
48          (1) "Account" means the Indigent Defense Resources Restricted Account created in
49     Section 78B-22-405.
50          [(2) "Board" means the Indigent Defense Funds Board created in Section 78B-22-501.]
51          [(3)] (2) "Commission" means the Utah Indigent Defense Commission created in
52     Section 78B-22-401.
53          [(4)] (3) "Child welfare case" means a proceeding under Title 80, Chapter 3, Abuse,
54     Neglect, and Dependency Proceedings, or Title 80, Chapter 4, Termination and Restoration of
55     Parental Rights.
56          [(5)] (4) "Executive Director" means the executive director of the Office of Indigent
57     Defense Services, created in Section 78B-22-451, who is appointed in accordance with Section
58     78B-22-453.
59          [(6)] (5) "Indigent defense resources" means the resources necessary to provide an
60     effective defense for an indigent individual.
61          [(7)] (6) "Indigent defense service provider" means an attorney or entity appointed to
62     represent an indigent individual through:
63          (a) a contract with an indigent defense system to provide indigent defense services;
64          (b) an order issued by the court under Subsection 78B-22-203(2)(a); or
65          (c) direct employment with an indigent defense system.
66          [(8)] (7) "Indigent defense services" means:
67          (a) the representation of an indigent individual by an indigent defense service provider;
68     and
69          (b) the provision of indigent defense resources for an indigent individual.
70          [(9)] (8) "Indigent defense system" means:
71          (a) a city or town that is responsible for providing indigent defense services;
72          (b) a county that is responsible for providing indigent defense services in the district
73     court, juvenile court, and the county's justice courts; or
74          (c) an interlocal entity, created pursuant to Title 11, Chapter 13, Interlocal Cooperation
75     Act, that is responsible for providing indigent defense services according to the terms of an
76     agreement between a county, city, or town.
77          [(10)] (9) "Indigent individual" means:
78          (a) a minor who is:
79          (i) arrested and admitted into detention for an offense under Section 78A-6-103;
80          (ii) charged by petition or information in the juvenile or district court; or
81          (iii) described in this Subsection [(10)] (9)(a), who is appealing an adjudication or
82     other final court action; and
83          (b) an individual listed in Subsection 78B-22-201(1) who is found indigent pursuant to
84     Section 78B-22-202.
85          [(11)] (10) "Minor" means the same as that term is defined in Section 80-1-102.
86          [(12)] (11) "Office" means the Office of Indigent Defense Services created in Section
87     78B-22-451.
88          [(13)] (12) "Participating county" means a county that complies with this chapter for
89     participation in the Indigent Aggravated Murder Defense Fund as provided in Sections
90     78B-22-702 and 78B-22-703.
91          Section 2. Section 78B-22-203 is amended to read:
92          78B-22-203. Order for indigent defense services.
93          (1) (a) [A] Except as provided in Subsection (6), a court shall appoint an indigent
94     defense service provider who is employed by an indigent defense system or who has a contract
95     with an indigent defense system to provide indigent defense services for an individual over
96     whom the court has jurisdiction if:
97          (i) the individual is an indigent individual; and
98          (ii) the individual does not have private counsel.
99          (b) An indigent defense service provider appointed by the court under Subsection
100     (1)(a) shall provide indigent defense services for the indigent individual in all court
101     proceedings in the matter for which the indigent defense service provider is appointed.
102          (2) (a) Notwithstanding Subsection (1), the court may order that indigent defense
103     services be provided by an indigent defense service provider who does not have a contract with
104     an indigent defense system if the court finds by clear and convincing evidence that:
105          (i) all the contracted indigent defense service providers:
106          (A) have a conflict of interest; or
107          (B) do not have sufficient expertise to provide indigent defense services for the
108     indigent individual; or
109          (ii) the indigent defense system does not have a contract with an indigent defense
110     service provider for indigent defense services.
111          (b) A court may not order indigent defense services under Subsection (2)(a) unless the
112     court conducts a hearing with proper notice to the indigent defense system by sending notice of
113     the hearing to the county clerk or municipal recorder.
114          (3) (a) A court may order reasonable indigent defense resources for an individual who
115     has retained private counsel only if the court finds by clear and convincing evidence that:
116          (i) the individual is an indigent individual;
117          (ii) the individual would be prejudiced by the substitution of a contracted indigent
118     defense service provider and the prejudice cannot be remedied;
119          (iii) at the time that private counsel was retained, the individual:
120          (A) entered into a written contract with private counsel; and
121          (B) had the ability to pay for indigent defense resources, but no longer has the ability to
122     pay for the indigent defense resources in addition to the cost of private counsel;
123          (iv) there has been an unforeseen change in circumstances that requires indigent
124     defense resources beyond the individual's ability to pay; and
125          (v) any representation under this Subsection (3)(a) is made in good faith and is not
126     calculated to allow the individual or retained private counsel to avoid the requirements of this
127     section.
128          (b) A court may not order indigent defense resources under Subsection (3)(a) until the
129     court conducts a hearing with proper notice to the indigent defense system by sending notice of
130     the hearing to the county clerk or municipal recorder.
131          (c) At the hearing, the court shall conduct an in camera review of:
132          (i) the private counsel contract;
133          (ii) the costs or anticipated costs of the indigent defense resources; and
134          (iii) other relevant records.
135          (4) A court may only order the representation of an indigent individual by an indigent
136     defense service provider in accordance with this section.
137          (5) A court may not order indigent defense resources be provided to an indigent
138     individual, except as provided in[:] Subsection (3).
139          [(a) Subsection (3); or]
140          [(b) Section 78B-22-705.]
141          (6) (a) For an individual prosecuted for aggravated murder and found indigent, a court
142     from a county participating in the Indigent Aggravated Murder Defense Fund created in
143     Section 78B-22-701 shall notify the Office of Indigent Defense Services of the finding of
144     indigency.
145          (b) The office shall assign an indigent defense service provider qualified under Utah
146     Rules of Criminal Procedure, Rule 8, with whom the office has a preliminary contract to
147     provide indigent defense services for an assigned rate.
148          Section 3. Section 78B-22-404 is amended to read:
149          78B-22-404. Powers and duties of the commission.
150          (1) The commission shall:
151          (a) adopt core principles for an indigent defense system to ensure the effective
152     representation of indigent individuals consistent with the requirements of the United States
153     Constitution, the Utah Constitution, and the Utah Code, which principles at a minimum shall
154     address the following:
155          (i) an indigent defense system shall ensure that in providing indigent defense services:
156          (A) an indigent individual receives conflict-free indigent defense services; and
157          (B) there is a separate contract for each type of indigent defense service; and
158          (ii) an indigent defense system shall ensure an indigent defense service provider has:
159          (A) the ability to exercise independent judgment without fear of retaliation and is free
160     to represent an indigent individual based on the indigent defense service provider's own
161     independent judgment;
162          (B) adequate access to indigent defense resources;
163          (C) the ability to provide representation to accused individuals in criminal cases at the
164     critical stages of proceedings, and at all stages to indigent individuals in juvenile delinquency
165     and child welfare proceedings;
166          (D) a workload that allows for sufficient time to meet with clients, investigate cases,
167     file appropriate documents with the courts, and otherwise provide effective assistance of
168     counsel to each client;
169          (E) adequate compensation without financial disincentives;
170          (F) appropriate experience or training in the area for which the indigent defense service
171     provider is representing indigent individuals;
172          (G) compensation for legal training and education in the areas of the law relevant to the
173     types of cases for which the indigent defense service provider is representing indigent
174     individuals; and
175          (H) the ability to meet the obligations of the Utah Rules of Professional Conduct,
176     including expectations on client communications and managing conflicts of interest;
177          (b) encourage and aid indigent defense systems in the state in the regionalization of
178     indigent defense services to provide for effective and efficient representation to the indigent
179     individuals;
180          (c) emphasize the importance of ensuring constitutionally effective indigent defense
181     services;
182          (d) encourage members of the judiciary to provide input regarding the delivery of
183     indigent defense services; [and]
184          (e) oversee individuals and entities involved in providing indigent defense services[.];
185     and
186          (f) manage county participation in the Indigent Aggravated Murder Defense Fund
187     created in Section 78B-22-701.
188          (2) The commission may:
189          (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
190     Rulemaking Act, to carry out the commission's duties under this part;
191          (b) assign duties related to indigent defense services to the office to assist the
192     commission with the commission's statutory duties;
193          (c) request supplemental appropriations from the Legislature to address a deficit in the
194     Indigent Inmate Fund created in Section 78B-22-455; and
195          (d) request supplemental appropriations from the Legislature to address a deficit in the
196     Child Welfare Parental Representation Fund created in Section 78B-22-804.
197          Section 4. Section 78B-22-452 is amended to read:
198          78B-22-452. Duties of the office.
199          (1) The office shall:
200          (a) establish an annual budget for the office for the Indigent Defense Resources
201     Restricted Account created in Section 78B-22-405;
202          (b) assist the commission in performing the commission's statutory duties described in
203     this chapter;
204          (c) identify and collect data that is necessary for the commission to:
205          (i) aid, oversee, and review compliance by indigent defense systems with the
206     commission's core principles for the effective representation of indigent individuals; and
207          (ii) provide reports regarding the operation of the commission and the provision of
208     indigent defense services by indigent defense systems in the state;
209          (d) assist indigent defense systems by reviewing contracts and other agreements, to
210     ensure compliance with the commission's core principles for effective representation of
211     indigent individuals;
212          (e) establish procedures for the receipt and acceptance of complaints regarding the
213     provision of indigent defense services in the state;
214          (f) establish procedures to award grants to indigent defense systems under Section
215     78B-22-406 that are consistent with the commission's core principles;
216          (g) create and enter into contracts consistent with Section 78B-22-454 to provide
217     indigent defense services for an indigent defense inmate who:
218          (i) is incarcerated in a state prison located in a county of the third, fourth, fifth, or sixth
219     class as classified in Section 17-50-501;
220          (ii) is charged with having committed a crime within that state prison; and
221          (iii) has been appointed counsel in accordance with Section 78B-22-203;
222          (h) assist the commission in developing and reviewing advisory caseload guidelines
223     and procedures;
224          (i) investigate, audit, and review the provision of indigent defense services to ensure
225     compliance with the commission's core principles for the effective representation of indigent
226     individuals;
227          (j) administer the Child Welfare Parental Representation Program in accordance with
228     Part 8, Child Welfare Parental Representation Program;
229          (k) administer the Indigent Aggravated Murder Defense Fund in accordance with Part
230     7, Indigent Aggravated Murder Defense Fund;
231          (l) assign an indigent defense service provider to represent an individual prosecuted for
232     aggravated murder in accordance with Part 7, Indigent Aggravated Murder Defense Fund;
233          [(k)] (m) annually report to the governor, Legislature, Judiciary Interim Committee,
234     and Judicial Council, regarding:
235          (i) the operations of the commission;
236          (ii) the operations of the indigent defense systems in the state; and
237          (iii) compliance with the commission's core principles by indigent defense systems
238     receiving grants from the commission;
239          [(l)] (n) submit recommendations to the commission for improving indigent defense
240     services in the state;
241          [(m)] (o) publish an annual report on the commission's website; and
242          [(n)] (p) perform all other duties assigned by the commission related to indigent
243     defense services.
244          (2) The office may enter into contracts and accept, allocate, and administer funds and
245     grants from any public or private person to accomplish the duties of the office.
246          (3) Any contract entered into under this part shall require that indigent defense services
247     are provided in a manner consistent with the commission's core principles implemented under
248     Section 78B-22-404.
249          Section 5. Section 78B-22-701 is amended to read:
250          78B-22-701. Establishment of Indigent Aggravated Murder Defense Fund -- Use
251     of fund -- Compensation for indigent legal defense from fund.
252          (1) As used in this part, "fund" means the Indigent Aggravated Murder Defense Fund.
253          (2) (a) There is established a custodial fund known as the "Indigent Aggravated Murder
254     Defense Fund."
255          (b) The [Division of Finance] office shall disburse money from the fund at the
256     direction of the [board] commission and subject to this chapter.
257          (3) The fund consists of:
258          (a) money received from participating counties as provided in Sections 78B-22-702
259     and 78B-22-703;
260          (b) appropriations made to the fund by the Legislature as provided in Section
261     78B-22-703; and
262          (c) interest and earnings from the investment of fund money.
263          (4) The state treasurer shall invest fund money with the earnings and interest accruing
264     to the fund.
265          (5) The fund shall be used to [assist participating counties with expenses for indigent
266     defense services, as provided in Subsection (6), to] fulfill the constitutional and statutory
267     mandates for the provision of constitutionally effective defense for indigent individuals
268     prosecuted for the violation of state laws in cases involving aggravated murder.
269          (6) Money allocated to or deposited into the fund is used only:
270          (a) [to reimburse participating counties for expenses incurred for indigent defense
271     services provided to an indigent individual, other than a state inmate in a state prison, who is
272     prosecuted for aggravated murder in a participating county] to pay an indigent defense service
273     provider appointed to represent an individual prosecuted for aggravated murder; [and]
274          (b) for defense resources necessary to effectively represent the individual; and
275          (c) for costs associated with the management of the fund and defense service providers.
276          [(b) for administrative costs pursuant to Section 78B-22-501.]
277          Section 6. Section 78B-22-701.5, which is renumbered from Section 78B-22-502 is
278     renumbered and amended to read:
279          [78B-22-502].      78B-22-701.5. Administration of Indigent Aggravated
280     Murder Defense Fund.
281          (1) The commission shall establish rules and procedures for the application by a county
282     for disbursements, and the screening and approval of the applications for the money from the
283     fund.
284          [(1)] (2) The [board] office shall:
285          [(a) establish rules and procedures for the application by a county for disbursements,
286     and the screening and approval of the applications for money from the fund;]
287          [(b)] (a) receive, screen, and approve, or disapprove the application of a county for
288     disbursements from the fund;
289          [(c)] (b) calculate the amount of the annual contribution to be made to the fund by each
290     participating county;
291          [(d)] (c) prescribe forms for the application for money from the fund;
292          [(e)] (d) oversee and approve the disbursement of money from the fund as described in
293     Section 78B-22-701; and
294          [(f) establish the board's own rules of procedure, elect the board's own officers, and
295     appoint committees of the board's members and other people as may be reasonable and
296     necessary; and]
297          [(g)] (e) negotiate, enter into, and administer contracts with legal counsel, qualified
298     under and meeting the standards consistent with this chapter, to provide indigent defense
299     services to an indigent individual prosecuted in a participating county for an offense involving
300     aggravated murder.
301          [(2) The board may provide to the court a list of attorneys qualified under Utah Rules
302     of Criminal Procedure, Rule 8, with which the board has a preliminary contract to provide
303     indigent defense services for an assigned rate.]
304          Section 7. Section 78B-22-702 is amended to read:
305          78B-22-702. County participation.
306          (1) (a) A county may participate in the fund subject to the provisions of this chapter.
307          (b) A county that does not participate in the fund, or is not current in the county's
308     assessments for the fund, is ineligible to receive money from the fund.
309          (c) The [board] commission may revoke a county's participation in the fund if the
310     county fails to pay the county's assessments when due.
311          (2) To participate in the fund, the legislative body of a county shall:
312          (a) adopt a resolution approving participation in the fund and committing that county to
313     fulfill the assessment requirements as set forth in Subsection (3) and Section 78B-22-703; and
314          (b) submit a certified copy of that resolution together with an application to the [board]
315     commission.
316          (3) By January 15 of each year, a participating county shall contribute to the fund an
317     amount computed in accordance with Section 78B-22-703.
318          (4) A participating county may withdraw from participation in the fund upon:
319          (a) adoption by the county's legislative body of a resolution to withdraw; and
320          (b) notice to the [board] commission by January 1 of the year before withdrawal.
321          (5) A county withdrawing from participation in the fund, or whose participation in the
322     fund has been revoked for failure to pay the county's assessments when due, shall forfeit the
323     right to:
324          (a) any previously paid assessment;
325          (b) relief from the county's obligation to pay the county's assessment during the period
326     of the county's participation in the fund; and
327          (c) any benefit from the fund, including reimbursement of costs that accrued after the
328     last day of the period for which the county has paid the county's assessment.
329          Section 8. Section 78B-22-703 is amended to read:
330          78B-22-703. County and state obligations.
331          (1) (a) Except as provided in Subsection (1)(b), a participating county shall pay into the
332     fund annually an amount calculated by multiplying the average of the percent of the county's
333     population to the total population of all participating counties and of the percent of the county's
334     taxable value of the locally and centrally assessed property located within that county to the
335     total taxable value of the locally and centrally assessed property to all participating counties by
336     the total fund assessment for that year to be paid by all participating counties as is determined
337     by the [board] commission to be sufficient such that it is unlikely that a deficit will occur in the
338     fund in any calendar year.
339          (b) The fund minimum is equal to or greater than 50 cents per person of all counties
340     participating.
341          (c) The amount paid by a participating county under this Subsection (1) is the total
342     county obligation for payment of costs in accordance with Section 78B-22-701.
343          (2) (a) A county that elects to initiate participation in the fund, or reestablish
344     participation in the fund after participation was terminated, is required to make an equity
345     payment in addition to the assessment required by Subsection (1).
346          (b) The equity payment is determined by the [board] commission and represent what
347     the county's equity in the fund would be if the county had made assessments into the fund for
348     each of the previous two years.
349          (3) If the fund balance after contribution by the state and participating counties is
350     insufficient to replenish the fund annually to at least $250,000, the [board] commission by a
351     majority vote may terminate the fund.
352          (4) If the fund is terminated, the remaining money shall continue to be administered
353     and disbursed in accordance with the provision of this chapter until exhausted, at which time
354     the fund shall cease to exist.
355          (5) (a) If the fund runs a deficit during any calendar year, the state is responsible for the
356     deficit.
357          (b) In the calendar year following a deficit year, the [board] commission shall increase
358     the assessment required by Subsection (1) by an amount at least equal to the deficit of the
359     previous year, which combined amount becomes the base assessment until another deficit year
360     occurs.
361          (6) In a calendar year in which the fund runs a deficit, or is projected to run a deficit,
362     the [board] commission shall request a supplemental appropriation to pay for the deficit from
363     the Legislature in the following general session.
364          (7) The state shall pay any or all of the reasonable and necessary money for the deficit
365     into the fund.
366          Section 9. Section 78B-22-704 is amended to read:
367          78B-22-704. Application and qualification for fund money.
368          (1) A participating county may apply to the [board] office for benefits from the fund if
369     that county has incurred, or reasonably anticipates incurring, expenses for indigent defense
370     services provided to an indigent individual for an offense involving aggravated murder.
371          (2) An application may not be made nor benefits provided from the fund for a case
372     filed before September 1, 1998.
373          (3) [Except as provided in Subsection (4), if] If the application of a participating
374     county is approved by the [board] office, the [board] office shall negotiate, enter into, and
375     administer a contract for the cost of indigent defense services with an attorney or entity
376     appointed to represent the indigent individual.
377          [(4) The board shall pay an indigent defense service provider with a contract under
378     Subsection (3) for indigent defense resources approved by a court under Section 78B-22-705.]
379          [(5)] (4) A nonparticipating county is responsible for paying for indigent defense
380     services in the nonparticipating county and is not eligible for any legislative relief.
381          Section 10. Repealer.
382          This bill repeals:
383          Section 78B-22-501, Indigent Defense Funds Board -- Members -- Administrative
384     support.
385          Section 78B-22-705, Extraordinary expense -- Motion.
386          Section 11. Effective date.
387          This bill takes effect on May 1, 2024.