STATE of Utah, Appellee, v. Tara EARL, Appellant.
No. 20120991
Supreme Court of Utah.
Jan. 27, 2015.
2015 UT 12, 1153
¶ 15 We affirm on that basis. Perez filed his motion requesting the provision of defense resources in April 2012. And at that time his right to request those resources was fully vested, as the information charging him with object rape had previously been filed and he also had been determined to be indigent. Thus, Perez was entitled to the benefit of the law in place in April, and subsequent changes to the law could not be applied retroactively to undermine his motion.
¶ 16 We accordingly affirm the district court‘s decision applying the unamended version of the IDA to this case. And we remand for further proceedings not inconsistent with this opinion.
Sean P. Hullinger, Lehi, for appellant.
Justice LEE authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice NEHRING, Justice DURHAM, and Justice PARRISH joined.
Justice LEE, opinion of the Court:
¶ 1 This is a consolidated interlocutory appeal in two pending criminal cases against Tara Earl. In these cases and in several related ones, we consider the applicability of legislative amendments to the Indigent Defense Act (IDA),
¶ 2 The question in these and related cases1 is the applicability of these amendments to certain cases filed or pending around the time the statute became effective (May 8, 2012). In the two criminal cases against Earl, two district court judges denied her requests for government-funded defense resources. We affirm. First, we identify the conduct being regulated by the IDA—the exercise of a mature right to indigent defense resources. Second, because the law in effect at the time that Earl exercised that right was the amended version of the IDA, we affirm the district court‘s decision denying Earl‘s motion. And finally, we reject Earl‘s constitutional and statutory challenges to the application of the IDA amendments to her case.
I
¶ 3 Earl stands charged with Unlawful Sexual Conduct involving a 16- or 17-year-old, a third-degree felony, in both the Third District Court and Fourth District Court. The criminal information in the Fourth District case was filed on November 21, 2011. In the Third District case, the information was filed on March 26, 2012.
¶ 4 At all relevant times, Earl has been represented by private counsel. She eventually filed an affidavit of indigency, however, which was accepted by both district courts. And she filed motions for government-funded defense resources in both cases. The Fourth District motion was filed on May 8, 2012. The Third District motion was filed on November 29, 2012.
¶ 5 In support of her motions, Earl asserted that the pre-amendment version of the IDA applied to her case because it was in effect at the time she was charged, and because the IDA amendments diminished her substantive right to counsel and thus cannot be applied retroactively. She also argued that by depriving her of state funding for her private counsel of choice, the amended IDA violated her constitutional right to effective assistance of counsel, due process, equal protection, and uniform operation laws. The State countered that the amended IDA applied because it had taken effect by the time Earl filed her motions for defense resources, and that in any case the amendments were procedural and thus retroactively applicable to cases already pending at the time they went into effect.
¶ 6 In addition to arguing in support of a vested right under the unamended version of the IDA, Earl also advanced separate challenges to the legality of the denial of her request for funding even under the amended statute. In the Fourth District, Earl asserted that Utah County‘s contract with its defense services provider did not comply with the notice and public bidding requirements set forth in the Utah Procurement Act,
¶ 7 Both district courts denied Earl‘s motions and rejected her alternative challenges to the legality of the denial of her requests under the amended IDA. In denying the motion in the Fourth District, Judge Hansen concluded that application of the amended IDA did not amount to the “retroactive” application of law to events completed before its enactment. Thus, Judge Hansen suggested that the law did not “‘attach[ ] new legal consequences to events completed before its enactment,‘” but instead merely applied prospectively to Earl‘s request for public funding, which was filed after the law went into effect. And on that basis Judge Hansen held that Earl‘s motion was “subject to the new statute as it was the governing law at the time of the request,” while suggesting in the alternative that the statute was “procedural and may thus be applied retroactively.”
¶ 8 Judge Hansen also rejected Earl‘s assertion that “the limitations of the new stat-
¶ 9 The Third District also denied Earl‘s motion. Judge Bernards-Goodman concluded that the 2012 amendments to the IDA “constitute a procedure change” to the law and therefore governed Earl‘s motion. And shе also rejected Earl‘s constitutional challenge to the amended IDA, holding that her “rights under the Sixth Amendment of the U.S. Constitution and Article I, Section 12 of the Utah State Constitution are not violated by application of the current version of the Indigent Defense Act.”
¶ 10 Earl filed petitions for interlocutory appeal, which were granted. We review the district courts’ decisions de novo, according no deference to their legal determinations of which version of the IDA applies to Earl‘s motions, or to their analysis of the grounds for challenging the legality of the provision of the amended IDA conditioning funding for defense resources on the retention of publicly funded counsel. See Vorher v. Henriod, 2013 UT 10, 6, 297 P.3d 614 (stating that the applicability of a statute is a matter of statutory interpretation, and thus a question of law, which we review de novo).
II
¶ 11 Earl challenges the district courts’ decisions denying her motions for funding of defense resources under the amended version of the IDA and also asserts alternative legal challenges to the application of the 2012 amendments in this case. First, she asserts that she acquired a “vested” right to proceed under the “law in effect at the time of [her] underlying primary conduct,” meaning “the conduct giving rise to [the] criminal charge[s]” against her. Second, even assuming that the amended IDA applies, Earl challenges the operative provision of the amended statute on various constitutional grounds. And finally, echoing points raised in the Fourth District proceeding below, Earl asserts that the counties failed to follow notice and public bidding requirements in the state procurement statute in establishing a “defense services provider” under
A
¶ 12 Earl‘s first argument fails for reasons identified by Judge Hansen in the Fourth District decision before us on this appeal. As Judge Hansen noted, the rule against retroactivity proscribes the retroactive application of a newly enacted statute “in a case arising from conduct antedating the statute‘s enactment” in a manner that “upsets expectations based in prior law.” Landgraf v. USI Film Prods., 511 U.S. 244, 269, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). And that principle is implicated where “the new provision attaches new legal consequences to events completed before its enactment.” Id. at 270.
¶ 13 We agree with Judge Hansen that this principle is not implicated here because the IDA amendments do not attach new legal consequences to the activity giving rise to the criminal charges against Earl. And we affirm the decisions in both of the consolidated сases before us because, as Judge Hansen put it, Earl “asked the court for public funding on her case after the new statute became effective,” and her “request is subject to the new statute as it was the governing law at the time of the request.”
¶ 14 This analysis is consistent with a clarification we offered in State v. Clark, 2011 UT 23, 13, 251 P.3d 829. There we noted that the line between substance and procedure is not ultimately an exception to the rule against retroactivity but a tool for identifying the relevant “event” being regulated by the law in question:
Thus, if a law regulates a breach of contract or a tort, we apply the law as it exists
when thе alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action. Subsequent changes to contract or tort law are irrelevant. Similarly, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed. A change in the procedural rule would not apply retroactively to prior motions to intervene. We would not expel a party for failure to conform to a newly amended intervention rule in her prior motions.
¶ 15 This framework dictates an affirmance of the district courts’ decisions in the cases before us on appeal. The key question is the identification of the relevant “event” being regulated by the law in question. And here that event is the assertion of a mature request for government-funded defense resources.
¶ 16 The event at issue is not the alleged conduct of Earl that gave rise to the criminal charges against her. The IDA, after all, does not define the elements of the unlawful sexual conduct crime with which she is charged or dictate a sentence for, or other consequence of, such conduct. See Landgraf, 511 U.S. at 269-70 (explaining that a law is understood as retroactive if it “attaches new legal consеquences to events completed before its enactment“). Instead, the IDA regulates Earl‘s activity occurring within the course of the criminal proceedings against her. It prescribes, specifically, the terms and conditions of the provision of government-funded defense resources long guaranteed as an adjunct to the right to counsel under the Sixth Amendment of the United States Constitution. See Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) (stating that indigent defendant has a Sixth Amendment right to “the basic tools of an adequate defense“).
¶ 17 The assertion of that right requires the confluence of three elements: (a) the legal right to counsel and associatеd defense resources, which is generally triggered by the filing of formal criminal charges;2 (b) the legal right to have those defense resources provided by the government, which is implicated by a determination of indigency;3 and (c) the assertion of a request for defense resources, typically by the filing of a formal motion requesting such resources.4 When these three elements come together, a defendant‘s assertion of her right to government-funded defense resources has matured or vested. And as of that date, the defendant is entitled to the benefit of the law in place at that time. See Clark, 2011 UT 23, 13, 251 P.3d 829 (explaining that “we apply the law as it exists at the time” of the event being regulated).
¶ 18 Earl‘s argument fails under this framework. The assertion of her mature right to defense resources came on or after the effective date of the 2012 amendments to the IDA (May 8, 2012). The charges in both cases were filed before then and private counsel appeared before that date, but the motions requesting funding for defense resources were not filed until May 8, 2012 (in the Fourth District) and November 29, 2012 (in the Third District). Thus, as of the date of the culmination of Earl‘s assertion of a right to defense resources, the amended law was in place. Application of the 2012 amendments was thus appropriate and did not run afoul of the general rule against retroactivity. We affirm the district court decisions in both cases before us on that basis.
¶ 19 Earl‘s constitutional claims were properly preserved only in the Third District proceeding. Her briefing in the Fourth District failed to present any constitutional analysis, and for that reason we decline to reach her arguments as applied to that case on grounds of preservation.5
¶ 20 Earl did present constitutional claims to the Third District. In that case, Earl argued, as she does before us on this appeal, that her constitutionаl right to counsel encompassed a right to “the resources necessary to prepare and present a complete and effective defense.” Citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Earl asserts a right to “meaningful access to justice” and an “adequate opportunity to present [her] claims fairly within the adversary system,” id. at 77—a right that, in her view, cannot be conditioned on the retention of a “public[ly] appointed lawyer.”
¶ 21 We reject this argument and affirm.6 The constitutional right to counsel encompasses the prerogative of choosing counsel of one‘s choice and of receiving resources necessary to an adequate defense. See Ake, 470 U.S. at 76-77. Such rights are qualified ones, however, affected by the “avenues which [the defendant] chose not to follow as well as those [she] now seeks to widen.” United States v. MacCollom, 426 U.S. 317, 326, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976). When a defendant elects an avenue that steers away from the public representation provided by the government, she has received the private counsel of her choice and has no constitutional right to defense resources from a secondary source backed by government funding.
¶ 22 The “right to choose one‘s own counsel is circumscribed in several important respects,” most importantly in the fact that an indigent defendant cannot “insist on representation by an attorney he cannot afford.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The United States Supreme Court, moreover, has not prescribed a single orthodoxy for the provision of the defense resources required by the Sixth Amendment. It instead has “le[ft] to the State the decision on how to implement” this constitutional guarantee. Ake, 470 U.S. at 83. And in our state the Legislature has chosen to couple the availability of defense resources with the retention of government-funded counsel. Thus, a defendant has every right to decline the counsel the government offers in favor of the one she prefers, but in so doing, she lоses the right to a publicly funded defense. See Wheat, 486 U.S. at 159.7
¶ 23 An indigent defendant has a right to “the basic tools of an adequate defense,” Britt, 404 U.S. at 227, not “the legal arsenal that may be privately retained by a criminal defendant,” Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).8 Accordingly, the con-
¶ 24 A defendant who opts out of public representation has also opted out of public defense resources, and nothing in the Constitution requires a different result. We accordingly affirm the Third District Court‘s decision rejecting Earl‘s challenge to the constitutionality of the 2012 amendments to the IDA under the Sixth Amendment of the United States Constitution.
¶ 25 We also reject a series of further constitutional challenges raised by Earl on appeal—under the Equal Protection Clause of the United States Constitution and the Uniform Operation of Laws Clause of the Utah Constitution. See
¶ 26 Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), is not to the contrary. Earl quotes this case for the proposition that there is “no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” Id. at 344-45. But the context of the quoted language belies Earl‘s suggestion that it undermines the constitutionality of the operative terms of the 2012 amendment to the IDA. The question in Cuyler concerned the standard for assessing a defendant‘s assertion of a violation of the Sixth Amendment in circumstances involving an alleged conflict of interest by counsel representing multiple defendants accused of the same crime. Id. at 337. The quoted language is simply the court‘s rejection of the government‘s attempt to establish the proposition that a defendant who retains his own private counsel forfeits the right to claim a violation of the Sixth Amendment when his counsel proceeds under a conflict of interest. See Id. at 342 (noting the government‘s argument that “the conduct of
¶ 27 There is an obvious rationality—in economic efficiency—in this longstanding distinction. See State v. Parduhn, 2011 UT 55, 51, 283 P.3d 488 (Lee, J., dissenting) (recognizing the “obvious and intended efficiencies” of employing legal aid associations “as the exclusive source for the defense of indigents” (internal quotation marks omitted)); see also Hatch v. Oklahoma, 58 F.3d 1447, 1456 (10th Cir.1995) (explaining that the “sounder and more efficient use of the state‘s resources” constituted a rational basis for limiting the number and distribution of state-staffed investigators available to indigent defendants), overruled in part on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n. 1 (10th Cir.2001) (en banc). And a similar rationality sustains the distinction in the 2012 IDA.
C
¶ 28 Earl‘s final claim is a challenge to the legality of the method by which Utah County and Salt Lake County have elected to provide defense services under the 2012 IDA. This claim is a converse of Earl‘s constitutionаl claims in terms of preservation: she preserved this argument in the Fourth District case but not in the Third District case. We accordingly reject this claim on preservation grounds as it extends to the Third District case, but consider its merits as applied to the Fourth District case.
¶ 29 The essence of Earl‘s claim is her assertion that the operative provision of the 2012 IDA—which generally conditions a defendant‘s eligibility for defense resources on the government‘s provision of a “defense services provider,”
¶ 30 This argument falters on several grounds. First, the qualifications for a “defense services provider” are set forth in the IDA, not in the procurement code, and the Utah County Public Defender‘s Association easily qualifies under the IDA. The IDA definеs “defense services provider” broadly. The statutory definition includes any “legal aid association, legal defender‘s office, regional legal defense association, law firm, attorney, or attorneys contracting with a county or municipality to provide legal defense.”
¶ 32 Finally, the public bidding and notice requirements of the state procurement code are not properly implicated in this proceeding. If Earl were a contractor seeking to compete in a competitive bidding process, she would be within the zone of interests protected by the procurement code, and thus have standing to sue under its terms.12 See Ball v. Pub. Serv. Comm‘n (In re Questar Gas Co.), 2007 UT 79, 61, 175 P.3d 545 (stating that an aggrieved party “must establish that the injury he complains of ... falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint” (alteration in original) (internal quotation marks omitted)); Forsberg v. Bovis Lend Lease, Inc., 2008 UT App 146, 9, 184 P.3d 610 (“Standing to assert rights created by statute requires that the plaintiff be within the zone of interest contemplated by [the statute] and have suffered a distinct and palpable injury.” (alteration in original) (internal quotation marks omitted)). But this is not a suit by a competing contractor under the procurement code. It is a request for defense resources filed by an indigent defendant in a pending criminal case. And in that context, it is the IDA, and not the procurement code, that controls. Because the terms of the IDA are met, Earl has no grounds for challenging the viability of Utah County‘s contract with the Public Defender‘s Association.13
III
¶ 33 For all these reasons, we affirm the decisions of the Third and Fourth District Courts in their entirety. And we remand for further proceedings not inconsistent with this opinion.