Bill Summary – FastDemocracy

Enrolled Copy                                                                        S.B. 139
                         AMENDMENTS TO INDIGENT DEFENSE
                                     2020 GENERAL SESSION
                                          STATE OF UTAH
                               Chief Sponsor: Ralph Okerlund
                                   House Sponsor: Joel Ferry
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 LONG TITLE
 General Description:
        This bill addresses indigent defense services.
 Highlighted Provisions:
        This bill:
        < creates and modifies definitions;
        < amends the right to counsel for certain parties;
        < amends the powers, duties, and membership of the Utah Indigent Defense
 Commission;
        < creates the Office of Indigent Defense Services;
        < creates the powers and duties of the Office of Indigent Defense Services;
        < amends provisions related to indigent defense grants;
        < creates the Indigent Appellate Defense Division to serve rural counties;
        < provides the powers and duties of the Indigent Appellate Defense Division;
        < creates the position of chief appellate officer within the Indigent Appellate Defense
 Division; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
       S.B. 139                                                                      Enrolled Copy
        78A-6-1111, as last amended by Laws of Utah 2019, Chapter 326
        78B-6-112, as last amended by Laws of Utah 2019, Chapters 136, 326, and 491
        78B-22-102, as enacted by Laws of Utah 2019, Chapter 326
        78B-22-201, as enacted by Laws of Utah 2019, Chapter 326
        78B-22-301, as enacted by Laws of Utah 2019, Chapter 326
        78B-22-401, as renumbered and amended by Laws of Utah 2019, Chapter 326
        78B-22-402, as last amended by Laws of Utah 2019, Chapter 435 and renumbered and
 amended by Laws of Utah 2019, Chapter 326
        78B-22-404, as renumbered and amended by Laws of Utah 2019, Chapter 326
        78B-22-406, as renumbered and amended by Laws of Utah 2019, Chapter 326
        78B-22-601, as renumbered and amended by Laws of Utah 2019, Chapter 326
 ENACTS:
        78B-22-451, Utah Code Annotated 1953
        78B-22-452, Utah Code Annotated 1953
        78B-22-801, Utah Code Annotated 1953
        78B-22-802, Utah Code Annotated 1953
        78B-22-803, Utah Code Annotated 1953
        78B-22-804, Utah Code Annotated 1953
 RENUMBERS AND AMENDS:
        78B-22-453, (Renumbered from 78B-22-403, as renumbered and amended by Laws of
 Utah 2019, Chapter 326)
51
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 78A-6-1111 is amended to read:
        78A-6-1111. Order for indigent defense service or guardian ad litem.
        [(1) A court shall order indigent defense services for a minor, parent, or legal guardian
 as provided by Title 78B, Chapter 22, Indigent Defense Act.]
        (1) A court shall order indigent defense services in accordance with Title 78B, Chapter
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       Enrolled Copy                                                                               S.B. 139
 22, Indigent Defense Act, for a minor, parent, or legal guardian facing an action filed by a
 private party or the state under this title.
         (2) (a) In any action under Part 3, Abuse, Neglect, and Dependency Proceedings, or
 Part 5, Termination of Parental Rights Act, the child shall be represented by a guardian ad
 litem in accordance with Sections 78A-6-317 and 78A-6-902.
         (b) The child shall [also] be represented by an attorney guardian ad litem in other
 actions initiated under this chapter when appointed by the court under Section 78A-6-902 or as
 otherwise provided by law.
         Section 2. Section 78B-6-112 is amended to read:
         78B-6-112. District court jurisdiction over termination of parental rights
 proceedings.
         (1) A district court has jurisdiction to terminate parental rights in a child if the party
 [who] that filed the petition is seeking to terminate parental rights in the child for the purpose
 of facilitating the adoption of the child.
         (2) A petition to terminate parental rights under this section may be:
         (a) joined with a proceeding on an adoption petition; or
         (b) filed as a separate proceeding before or after a petition to adopt the child is filed.
         (3) A court may enter a final order terminating parental rights before a final decree of
 adoption is entered.
         (4) (a) Nothing in this section limits the jurisdiction of a juvenile court relating to
 proceedings to terminate parental rights as described in Section 78A-6-103.
         (b) This section does not grant jurisdiction to a district court to terminate parental
 rights in a child if the child is under the jurisdiction of the juvenile court in a pending abuse,
 neglect, dependency, or termination of parental rights proceeding.
         (5) The district court may terminate an individual's parental rights in a child if:
         (a) the individual executes a voluntary consent to adoption, or relinquishment for
 adoption, of the child, in accordance with:
         (i) the requirements of this chapter; or
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        S.B. 139                                                                         Enrolled Copy
         (ii) the laws of another state or country, if the consent is valid and irrevocable;
         (b) the individual is an unmarried biological father who is not entitled to consent to
 adoption, or relinquishment for adoption, under Section 78B-6-120 or 78B-6-121;
         (c) the individual:
         (i) received notice of the adoption proceeding relating to the child under Section
 78B-6-110; and
         (ii) failed to file a motion for relief, under Subsection 78B-6-110(6), within 30 days
 after the day on which the individual was served with notice of the adoption proceeding;
         (d) the court finds, under Section 78B-15-607, that the individual is not a parent of the
 child; or
         (e) the individual's parental rights are terminated on grounds described in Title 78A,
 Chapter 6, Part 5, Termination of Parental Rights Act, [if terminating the individual's parental
 rights is] and termination is in the best interests of the child.
         (6) The court shall appoint an indigent defense service provider[, under] in accordance
 with Title 78B, Chapter 22, Indigent Defense Act, to represent [a party] an individual who
 faces any action initiated by a private party under Title 78A, Chapter 6, Part 5, Termination of
 Parental Rights Act, or whose parental rights are subject to termination under this section.
         (7) If a county incurs expenses in providing indigent defense services to an indigent
 individual facing any action initiated by a private party under Title 78A, Chapter 6, Part 5,
 Termination of Parental Rights Act, or termination of parental rights under this section, the
 county may apply for reimbursement from the Utah Indigent Defense Commission [under] in
 accordance with Section 78B-22-406.
         (8) A petition filed under this section is subject to the procedural requirements of this
 chapter.
         Section 3. Section 78B-22-102 is amended to read:
         78B-22-102. Definitions.
         As used in this chapter:
         (1) "Account" means the Indigent Defense Resources Restricted Account created in
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        Enrolled Copy                                                                           S.B. 139
 Section 78B-22-405.
         (2) "Board" means the Indigent Defense Funds Board created in Section 78B-22-501.
         (3) "Commission" means the Utah Indigent Defense Commission created in Section
 78B-22-401.
         (4) "Director" means the director of the Office of Indigent Defense Services, created in
 Section 78B-22-451, who is appointed in accordance with Section 78B-22-453.
         [(4)] (5) (a) "Indigent defense resources" means the resources necessary to provide an
 effective defense for an indigent individual, including the costs for a competent investigator,
 expert witness, scientific or medical testing, transcripts, and printing briefs.
         (b) "Indigent defense resources" does not include an indigent defense service provider.
         [(5)] (6) "Indigent defense service provider" means an attorney or entity appointed to
 represent an indigent individual pursuant to:
         (a) a contract with an indigent defense system to provide indigent defense services; or
         (b) an order issued by the court under Subsection 78B-22-203(2)(a).
         [(6)] (7) "Indigent defense services" means:
         (a) the representation of an indigent individual by an indigent defense service provider;
 and
         (b) the provision of indigent defense resources for an indigent individual.
         [(7)] (8) "Indigent defense system" means:
         (a) a city or town that is responsible for providing indigent defense services [in the
 city's or town's justice court];
         (b) a county that is responsible for providing indigent defense services in the district
 court, juvenile court, [or] and the county's justice courts; or
         (c) an interlocal entity, created pursuant to Title 11, Chapter 13, Interlocal Cooperation
 Act, that is responsible for providing indigent defense services according to the terms of an
 agreement between a county, city, or town.
         [(8)] (9) "Indigent individual" means:
         (a) a minor who is:
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        S.B. 139                                                                        Enrolled Copy
        (i) arrested and admitted into detention for an offense under Section 78A-6-103;
        (ii) charged by petition or information in the juvenile or district court; or
        (iii) described in this Subsection [(8)] (9)(a), who is appealing [a first appeal from] an
 adjudication or other final court action; and
        (b) an individual listed in Subsection 78B-22-201(1) who is found indigent pursuant to
 Section 78B-22-202.
        [(9)] (10) "Minor" means the same as that term is defined in Section 78A-6-105.
        (11) "Office" means the Office of Indigent Defense Services created in Section
 78B-22-451.
        [(10)] (12) "Participating county" means a county that complies with this chapter for
 participation in the Indigent Aggravated Murder Defense Trust Fund as provided in Sections
 78B-22-702 and 78B-22-703.
        Section 4. Section 78B-22-201 is amended to read:
        78B-22-201. Right to counsel.
        (1) A court shall advise the following of the individual's right to counsel when the
 individual first appears before the court:
        (a) an adult charged with a criminal offense the penalty for which includes the
 possibility of incarceration regardless of whether actually imposed;
        (b) a parent or legal guardian facing [any] an action initiated by the state under:
        (i) Title 78A, Chapter 6, Part 3, Abuse, Neglect, and Dependency Proceedings;
        (ii) Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
        (iii) Title 78A, Chapter 6, Part 10, Adult Offenses; [or]
        [(iv) Section 78B-6-112; or]
        (c) a parent or legal guardian facing an action initiated by any party under:
        (i) Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
        (ii) Section 78B-6-112; or
        [(c)] (d) an individual described in this Subsection (1), who is appealing [a first appeal
 from] a conviction or other final court action.
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        Enrolled Copy                                                                              S.B. 139
           (2) If an individual described in Subsection (1) does not knowingly and voluntarily
 waive the right to counsel, the court shall determine whether the individual is indigent under
 Section 78B-22-202.
           Section 5. Section 78B-22-301 is amended to read:
           78B-22-301. Standards for indigent defense systems.
           An indigent defense system shall provide indigent defense services for an indigent
 individual in accordance with the [minimum guidelines] core principles adopted by the
 commission under Section 78B-22-404.
           Section 6. Section 78B-22-401 is amended to read:
           78B-22-401. Utah Indigent Defense Commission -- Creation -- Purpose.
           (1) There is created the Utah Indigent Defense Commission within the State
 Commission on Criminal and Juvenile Justice [the "Utah Indigent Defense Commission."].
           (2) The purpose of the commission is to assist:
           (a) the state in meeting the state's obligations for the provision of indigent defense
 services, consistent with the United States Constitution, the Utah Constitution, and the Utah
 Code; and
           (b) the office with carrying out the statutory duties assigned to the commission and
 office.
           Section 7. Section 78B-22-402 is amended to read:
           78B-22-402. Commission members -- Member qualifications -- Terms -- Vacancy.
           (1) The commission is composed of 15 [voting] members [and one ex officio,
 nonvoting member].
           (a) The governor, with the consent of the Senate, shall appoint the following [13
 voting] 11 members:
           (i) two practicing criminal defense attorneys recommended by the Utah Association of
 Criminal Defense Lawyers;
           (ii) one attorney practicing in juvenile delinquency defense recommended by the Utah
 Association of Criminal Defense Lawyers;
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        S.B. 139                                                                     Enrolled Copy
        (iii) one attorney practicing in the area of parental defense, recommended by an entity
 funded under the Child Welfare Parental Defense Program created in Section 63M-7-211;
        [(iii)] (iv) [an] one attorney representing minority interests recommended by the Utah
 Minority Bar Association;
        [(iv)] (v) one member recommended by the Utah Association of Counties from a
 county of the first or second class;
        [(v)] (vi) one member recommended by the Utah Association of Counties from a
 county of the third through sixth class;
        [(vi)] (vii) [a] one director of a county public defender organization recommended by
 the Utah Association of Criminal Defense Lawyers;
        [(vii)] (viii) two members recommended by the Utah League of Cities and Towns from
 its membership; and
        [(viii)] (ix) [a] one retired judge recommended by the Judicial Council[;].
        [(ix) one attorney practicing in the area of parental defense, recommended by an entity
 funded under the Child Welfare Parental Defense Program created in Section 63M-7-211; and]
        [(x)] (b) The speaker of the House of Representatives and the president of the Senate
 shall appoint two members of the Utah Legislature, one from the House of Representatives and
 one from the Senate[, selected jointly by the Speaker of the House and President of the Senate].
        [(b)] (c) The Judicial Council shall appoint a [voting] member from the Administrative
 Office of the Courts.
        [(c)] (d) The executive director of the State Commission on Criminal and Juvenile
 Justice or the executive director's designee is a [voting] member of the commission.
        [(d) The director of the commission, appointed under Section 78B-22-403, is an ex
 officio, nonvoting member of the commission.]
        (2) A member appointed by the governor shall serve a four-year term, except as
 provided in Subsection (3).
        (3) The governor shall stagger the initial terms of appointees so that approximately half
 of the members appointed by the governor are appointed every two years.
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       Enrolled Copy                                                                         S.B. 139
        (4) A member appointed to the commission shall have significant experience in
 indigent criminal defense, parental defense, or juvenile defense in delinquency proceedings or
 have otherwise demonstrated a strong commitment to providing effective representation in
 indigent defense services.
        (5) [A person] An individual who is currently employed solely as a criminal
 prosecuting attorney may not serve as a member of the commission.
        (6) A commission member shall hold office until the member's successor is appointed.
        (7) The commission may remove a member for incompetence, dereliction of duty,
 malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
        (8) If 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.
        (9) (a) The commission shall [annually elect] elect annually a chair from the
 commission's membership to serve a one-year term.
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