Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 134 First Substitute (2017GS)

Sponsor

Sen. Weiler, T.

Final action

Governor Signed 3/17/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• expands the Utah Indigent Defense Commission to include juvenile defense;
• addresses the make up of the commission;
• addresses the qualifications and duties of the director, including the hiring of staff;
• addresses the powers and duties of the commission;
• modifies provisions related to the Indigent Defense Resources Account;
• addresses indigent criminal and juvenile defense system participation;
• amends provisions related to application for grant money;
• addresses cooperation with the commission; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

INDIGENT DEFENSE COMMISSION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Todd Weiler
House Sponsor: 
Craig Hall
LONG TITLE
General Description:
This bill modifies the Indigent Defense Act.
Highlighted Provisions:
This bill:
▸ expands the Utah Indigent Defense Commission to include juvenile defense;
▸ addresses the make up of the commission;
▸ addresses the qualifications and duties of the director, including the hiring of staff;
▸ addresses the powers and duties of the commission;
▸ modifies provisions related to the Indigent Defense Resources Account;
▸ addresses indigent criminal and juvenile defense system participation;
▸ amends provisions related to application for grant money;
▸ addresses cooperation with the commission; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
77-32-801
, as enacted by Laws of Utah 2016, Chapter 177
77-32-802
, as enacted by Laws of Utah 2016, Chapter 177
77-32-803
, as enacted by Laws of Utah 2016, Chapter 177
77-32-804
, as enacted by Laws of Utah 2016, Chapter 177
77-32-805
, as enacted by Laws of Utah 2016, Chapter 177
77-32-806
, as enacted by Laws of Utah 2016, Chapter 177
77-32-807
, as enacted by Laws of Utah 2016, Chapter 177
77-32-808
, as enacted by Laws of Utah 2016, Chapter 177
77-32-809
, as enacted by Laws of Utah 2016, Chapter 177
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
77-32-801
 is amended to read:
77-32-801.
Indigent Defense Commission creation -- Purpose -- Definition.
(1) There is created within the Commission on Criminal and Juvenile Justice the Utah
Indigent Defense Commission.
(2) The purpose of the commission is to assist the state in meeting the state's
obligations for the provision of indigent [
criminal
] defense services, consistent with the United
States Constitution, the Utah Constitution, and [
this chapter
] 
the Utah Code
.
 (3) Notwithstanding Section 
77-32-201,
 for purposes of this part:
 (a) "Indigent defense services" means the representation of indigent persons in
criminal, juvenile delinquency, and child welfare cases. 
(b) "Indigent defense system" means indigent defense services provided by:
(i) local units of government, including a county, city, or town; or
(ii) a regional legal defense organization.
Section 2. Section 
77-32-802
 is amended to read:
77-32-802.
Commission members -- Membership qualifications -- Terms --
Vacancy -- Administrative support.
(1) The commission is composed of [
] 
 voting and two ex officio, nonvoting
members.
(a) The governor, with the consent of the Senate, shall appoint the following [
nine
] 
members:
(i) two practicing criminal defense attorneys 
and one attorney practicing in the area of
juvenile delinquency defense 
 recommended by the Utah Association of Criminal Defense
Lawyers;
(ii) an attorney representing minority interests recommended by the Utah Minority Bar
Association;
(iii) one member recommended by the Utah Association of Counties from a county of
the first or second class;
(iv) one member recommended by the Utah Association of Counties from a county of
the third through sixth class;
(v) a director of a county public defender organization recommended by the Utah
Association of Criminal Defense Lawyers;
(vi) two members recommended by the Utah League of Cities and Towns from its
membership;
(vii) a retired judge recommended by the Judicial Council; [
and
]
(viii) one member of the Utah Legislature selected jointly by the Speaker of the House
and President of the Senate[
.
]
; and
 (ix) one attorney practicing in the area of parental defense, recommended by an entity
funded under Title 63A, Chapter 11, Child Welfare Parental Defense Program. 
(b) The executive director of the Commission on Criminal and Juvenile Justice or the
executive director's designee shall be a voting member of the commission.
(c) The ex officio, nonvoting members of the commission are:
(i) the director of the [
Utah Indigent Defense Commission
] 
commission
 appointed in
Section 
77-32-803
; and
(ii) a representative from the Administrative Office of the Courts appointed by the
Judicial Council.
(2) Members appointed by the governor shall serve four-year terms, except as provided
in Subsection (3).
(3) The governor shall stagger the initial terms of appointees so that approximately half
of the commission is appointed every two years.
(4) Members appointed to the commission shall have significant experience in 
indigent
criminal defense
 , child welfare parental defense, or juvenile defense in delinquency 
proceedings or have 
otherwise
 demonstrated a strong commitment to providing effective
representation in indigent [
criminal
] defense services.
(5) A person who is currently employed solely as a criminal prosecuting attorney may
not serve as a member of the commission .
[
(5)
] 
(6)
 Commission members shall hold office until their successors are appointed.
[
(6)
] 
(7)
 The commission may remove a member for incompetence, dereliction of duty,
malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
[
(7)
] 
(8)
 When a vacancy occurs in the membership for any reason, a replacement shall
be appointed for the remaining unexpired term in the same manner as the original appointment.
[
(8)
] 
(9)
 The governor shall appoint one of the initial commission members to serve as
chair of the commission for a term of one year. At the expiration of that year, or upon the
vacancy in the membership of the appointed chair, the commission shall annually elect a chair
from the commission's membership to serve a one-year term. A commission member may not
serve as chair of the commission for more than three consecutive terms.
[
(9)
] 
(10)
 A member may not receive compensation or benefits for the member's
service, but may receive per diem and travel expenses in accordance with:
(a) Section 
63A-3-106
;
(b) Section 
63A-3-107
; and
(c) rules made by the Division of Finance pursuant to Sections 
63A-3-106
 and
63A-3-107
.
[
(10)
] 
(11)
 Six members constitute a quorum, however, the affirmative vote of at least
six members of the commission is required for official action of the commission.
Section 3. Section 
77-32-803
 is amended to read:
77-32-803.
Director -- Qualifications -- Staff.
(1) The commission shall appoint a director to carry out the following duties:
(a) establish an annual budget;
(b) assist the commission in [
developing and regularly reviewing advisory caseload
guidelines and procedures, including recommending to the commission suggested changes to
the criteria for an indigent defendant's eligibility to receive criminal defense services under this
chapter; and
] 
the performance of the commission's statutory duties;
 (c) assist the commission in developing and regularly reviewing advisory caseload
guidelines and procedures, including recommending to the commission suggested changes to
the criteria for an indigent person's eligibility to receive defense services under this chapter;
and
[
(c)
] 
(d)
 perform all other duties as assigned.
(2) The director shall be [
a full-time licensed attorney
] 
an active member of the Utah
State Bar
 with 
an
 appropriate background and experience to serve as the full-time director.
(3) The director shall hire staff as necessary to carry out the duties of the commission,
including [
at least one individual with data collection and analysis skills to carry out duties as
outlined in Subsection 
77-32-804
(1)(a).
]
:
(a) one individual who is an active member of the Utah State Bar to serve as a full-time
assistant director; and
(b) one individual with data collection and analysis skills to carry out duties as outlined
in Subsection 
77-32-804
(1)(a).
(4) The commission in appointing the director, and the director in hiring the assistant
director, shall give a preference to individuals with experience in adult criminal defense, child
welfare parental defense, or juvenile delinquency defense.
Section 4. Section 
77-32-804
 is amended to read:
77-32-804.
Powers and duties of the commission -- Annual report.
(1) The commission shall:
(a) develop and adopt guiding principles for the assessment and oversight of [
criminal
]
indigent
 defense systems with the state that, at a minimum, address the following:
(i) Indigent defense service providers shall have independent judgment without fear of
retaliation.
(ii) Service providers shall provide conflict-free representation, including the need for a
separate contract for conflict counsel.
(iii) Service providers shall provide contracts that separately account for indigent
criminal defense, parental defense, and juvenile delinquency defense.
[
(iii)
] 
(iv)
 The state may not interfere with the service provider's access to clients and
the service provider is free to defend the client based on the service provider's own independent
judgment[
.
]
:
[
(iv)
] 
(A)
 Accused persons 
in criminal cases
 shall be provided counsel at all critical
stages [
of the criminal process
] .
(B) Indigent parties in juvenile delinquency and child welfare proceedings shall be
provided counsel at all stages.
[
(v)
] 
(v)
 Counsel shall be free to provide meaningful[
, adversarial testing of the
evidence
] 
representation
, including:
(A) adequate access to defense resources; and
(B) workloads that allow for time to meet with clients, investigate cases, and file
appropriate motions.
[
(vi)
] 
(vi)
 Service providers shall be fairly compensated and incentivized to represent
clients fully through:
(A) compensation, that shall be independent from prosecutors' compensation;
(B) incentives that are structured to 
effectively
 represent [
criminal defendants well;
and
] 
indigent persons;
(C) contract provisions that address legal training and education in the areas of the law
relevant to the types of cases the service provider is contracted to appear on;
[
(C)
] 
(D)
 separate contracts [
that are offered
] 
for appellate attorneys
 to ensure the right
to appeal[
.
]
; and
(E) compensation sufficient to attract applicants qualified with adequate experience in
the relevant areas of the law to provide effective representation in the defense of clients.
(vii) Contracts that address counsel's obligation under the Utah Rules of Professional
Conduct, including expectations on client communications and managing conflicts of interest.
[
(vii)
] 
(viii)
 The commission may maintain oversight to collect data, audit attorney
performance, establish standards, and enforce the principles listed [
above
] 
in this Subsection
(1)(a)
;
(b) identify and collect data necessary for the commission to:
(i) review compliance by [
criminal
] 
indigent
 defense systems of minimum principles
for effective representation;
(ii) establish procedures for the collection and analysis of the data; and
(iii) provide reports regarding the operation of the commission and the provision of
indigent [
criminal
] defense services by each indigent [
criminal
] defense system;
(c) develop and oversee the establishment of advisory caseload principles and
guidelines to aid indigent [
criminal
] defense systems in delivering effective representation in
the state consistent with the safeguards of the United States Constitution, the Utah
Constitution, and [
this chapter
] 
the Utah Code
;
(d) review [
all
] contracts and interlocal agreements in the state for the provision of
indigent [
criminal
] defense services and provide assistance and recommendations regarding
compliance with minimum principles for effective representation 
of indigent individuals in
court
 ;
(e) investigate, audit, and review the provision of indigent [
criminal
] defense services
for compliance with minimum principles;
(f) establish procedures for the receipt, acceptance, and resolution of complaints
regarding the provision of indigent [
criminal
] defense services;
(g) establish procedures that enable indigent [
criminal
] defense systems to apply for
state funding as provided under Section 
77-32-805
;
(h) establish procedures for annually reporting to the governor, Legislature, 
and
Judicial Council, [
and indigent criminal defense systems throughout the state that
] 
which
include reporting the following:
(i) the operations of the commission;
(ii) the operations of each indigent [
criminal
] defense system 
to which the commission
has granted money
 ; and
(iii) 
the compliance by
 each indigent [
criminal
] defense [
system's compliance
] 
system
that has received a grant of money from the commission,
 with minimum [
standards
] 
principles
for the provision of indigent [
criminal
] defense services 
and
 for effective representation 
of
indigent individuals in court
 ;
(i) award grants to indigent [
criminal
] defense systems consistent with metrics
established by the commission under this part and appropriations by the state;
(j) encourage and aid in the regionalization of indigent [
criminal
] defense services
within the state for effective representation and for efficiency and cost savings to local
systems;
(k) submit to legislative, executive, and judicial leadership, from time to time,
proposed recommendations for improvement in the provision of indigent [
criminal
] defense
services to ensure effective representation in the state, consistent with the safeguards of the
United States Constitution [
and
]
,
 the Utah Constitution 
, and the Utah Code
 ; and
(l) identify and encourage best practices for effective representation [
to indigent
defendants charged with crimes
].
(2) The commission shall emphasize the importance of 
effective
 indigent [
criminal
]
defense services [
provided to defendants, whether charged with a misdemeanor or felony
].
(3) The commission shall establish procedures for the conduct of the commission's
affairs and internal policies necessary to carry out the commission's duties and responsibilities
under this part.
(4) Commission policies shall be [
placed in an appropriate manual,
] made publicly
available on a website[
, and made available to all attorneys and professionals providing
indigent criminal defense services, the Judicial Council, the governor, and the Legislature
].
(5) The delivery of indigent [
criminal
] defense services shall be independent of the
judiciary, but the commission shall ensure that judges are permitted and encouraged to
contribute information and advice concerning the delivery of indigent [
criminal
] defense
services.
(6) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, to establish guiding principles for the constitutional provision
of indigent defense services in the state.
[
(6)
] 
(7)
 An indigent [
criminal
] defense system that is in compliance with minimum
principles and procedures may not be required to provide indigent [
criminal
] defense services
in excess of those principles and procedures.
[
(7)
] 
(8)
 The commission shall [
submit a
] report annually to the Judiciary Interim
Committee on the commission's efforts to improve the provision of indigent [
criminal
] defense
services statewide.
Section 5. Section 
77-32-805
 is amended to read:
77-32-805.
Indigent Defense Resources Account -- Administration.
(1) For purposes of this part, "account" means the Indigent Defense Resources
Account.
(2) (a) There is created within the General Fund a restricted account known as the
"Indigent Defense Resources Restricted Account."
(b) [
Funds
] 
Money
 in the account shall be nonlapsing.
(c) Subject to appropriation, [
funds
] 
money
 from the account shall be disbursed by the
[
Utah Indigent Defense Commission 
] 
commission
 in accordance with [
the provisions of this
chapter
] 
this part
.
(3) The account consists of:
(a) [
funds
] 
money
 appropriated by the Legislature based upon recommendations from
the commission consistent with principles of shared state and local funding;
(b) other [
moneys
] 
money
 received by the commission pursuant to Subsection
77-32-809
(3); and
(c) interest and earnings from the investment of account [
funds
] 
money
.
(4) [
Funds
] 
Money
 from the account shall be invested by the state treasurer with the
earnings and interest accruing to the account.
(5) The account shall be administered by the commission for:
(a) the establishment and maintenance of a statewide indigent [
criminal
] defense data
collection system;
(b) grants to indigent [
criminal
] defense systems for defense resources; and
(c) grants to indigent [
criminal
] defense systems for defense services providers.
(6) Money allocated to or deposited into the account shall be used:
(a) to reimburse participating systems for commission-approved expenditures for the
purposes listed in Subsection (5); and
(b) for administrative costs.
Section 6. Section 
77-32-806
 is amended to read:
77-32-806.
Indigent and juvenile defense system participation.
(1) To qualify for grant [
funds
] 
money
 described in Subsection 
77-32-805
(5), the
legislative body responsible for an indigent [
criminal
] defense system shall:
(a) adopt a resolution stating the intent to apply for grant [
funds
] 
money
 from the
account and committing that the indigent [
criminal
] defense system shall meet minimum
principles for 
the
 effective representation 
of indigent individuals in court
 ; and
(b) submit a certified copy of that resolution together with an application to the
commission.
(2) The commission may revoke an indigent [
criminal
] defense system's grant award if
the system fails to meet minimum principles for 
the
 effective representation 
of indigent
individuals in court or other grant conditions established by the commission
 .
Section 7. Section 
77-32-807
 is amended to read:
77-32-807.
Application for grant money.
(1) Applications for grant [
moneys
] 
money from the commission
 may seek resources
for the following expenses:
(a) establishment and maintenance of an indigent [
criminal
] defense data collection
system;
(b) defense resources;
(c) matching [
fund
] 
money
 grants for defense services providers; and
(d) critical need grants for defense services providers.
(2) (a) Matching [
fund
] 
money
 grants, as described in Subsection (1)(c), may be
awarded if the indigent [
criminal
] defense system spends an amount greater than the system's
baseline budget, as described in Subsection 
77-32-809
(2)(a), for defense services providers.
(b) For the purposes of Subsection (2)(a), matching [
funds is an amount equal to the
product of
] 
money grants may be awarded by the commission in an amount up to
:
(i) 
for a city or town,
 the indigent [
criminal
] defense system's spending above the
system's baseline budget; and
(ii) 
for a county, the product of the indigent defense system's spending above the
system's baseline budget and:
(A) 50% for counties of the first class;
(B) 100% for counties of the second or third class; or
(C) 200% for counties of the fourth through sixth class.
(3) Critical need grant [
moneys
] 
money
, as described in Subsection (1)(d), may be
awarded if the indigent [
criminal
] defense system can demonstrate to the commission's
satisfaction that:
(a) the system has incurred or reasonably anticipates incurring expenses in excess of
the system's annual local funding, as adjusted for population growth and inflation;
(b) the funding for the expenses described in Subsection (3)(a) is necessary for the
indigent [
criminal
] defense system to meet minimum [
standards
] 
principles
 for effective
representation; and
(c) increasing the system's local share for indigent [
criminal
] defense providers would
constitute an undue burden on the indigent [
criminal
] defense system.
(4) If the application of a participating indigent [
criminal
] defense system is approved
by the commission, the director of the commission shall negotiate, enter into, and administer a
contract with the participating indigent [
criminal
] defense system for the purposes listed in
Subsection (1).
(5) Nonparticipating systems remain responsible for meeting minimum principles for
effective representation but may not be eligible for any legislative relief.
(6) A county or municipality may not be required to increase the county or
municipality's certified tax rate pursuant to Section 
59-2-924
 to participate in the fund.
Section 8. Section 
77-32-808
 is amended to read:
77-32-808.
Annual report, budget, and listing of expenditures -- Availability on
website.
(1) As used in this section, "expenditures" means all payments or disbursements of
commission [
funds
] 
money
, received from any source, made by the commission.
(2) The commission shall publish and make available to the public on a website the
commission's annual report, budget, salary information, a listing of all expenditures, and a list 
of all indigent [
criminal
] defense systems.
(3) Publication and availability of the listing of expenditures shall be on a quarterly
basis. The commission's budget and salary information may be published and made available
on an annual basis.
Section 9. Section 
77-32-809
 is amended to read:
77-32-809.
Investigation, audit, and review of indigent and juvenile defense
services -- Cooperation and participation with commission -- Maintenance of local share
-- Necessity for excess funding.
(1) [
All indigent criminal
] 
Indigent
 defense systems and attorneys engaged in
providing indigent [
criminal
] defense services shall cooperate and participate with the
commission in the investigation, audit, and review of all indigent [
criminal
] defense services.
(2) (a) For purposes of this part, "baseline budget" means an indigent [
criminal
]
defense system's [
share of local funding, adjusted annually for growth in population and
inflation
] 
annual expenditure for the indigent defense services. The baseline budget shall be
adjusted for indigent defense case load fluctuations and inflations whenever subsequent grant
requests are submitted to the commission
.
(b) An indigent [
criminal
] defense system shall maintain the system's baseline budget
each year.
(c) If the commission determines that [
funding
] 
money
 in excess of the indigent
[
criminal
] defense system's baseline budget is necessary to achieve minimum principles for
effective representation, the excess [
funding
] 
money
 shall be paid from state or local funding,
or a combination of both, as determined by the grant application process described in Section
77-32-807
.
(d) An indigent [
criminal
] defense system is not required to expend all of the system's
local funding if minimum principles for effective representation may be met for less than local
funding.
(3) The commission may apply for and obtain state funding from any source to carry
out the purposes of this part. [
All funds
] 
Money
 received by the commission, from any source,
are state funds and shall be appropriated as provided by law.