Associate Chief Justice DURRANT, opinion of the Court:
¶ 1 In this opinion, we address issues raised in three consolidated cases: (1) State v. Parduhn, (2) State v. Jeffs, and (3) State v. Davis. All three cases come to us on interlocutory appeal and involve nearly identical facts and issues. Mr. Parduhn, Mr. Jeffs, and Mr. Davis (collectively, the Defendants) have all been charged with crimes in Salt Lake County (the County). Although each of the Defendants was found to be indigent, and therefore qualified for representation by a public defender, each of the Defendants retained private attorneys. Sometime after retaining their attorneys, each of the Defendants filed a motion in the district court
¶ 2 On appeal, we are asked to resolve two issues. First, we must determine whether our holding in State v. Burns—that the Utah Indigent Defense Act (the Act) requires local governments to provide indigent defendants with funding for necessary defense resources, even when the defendant is represented by private counsel
¶ 3 We first hold that the amendments to the Act have not overruled or superseded our holding in Burns. We reach this conclusion based on the plain language of the Act, which expressly states that local governments must provide indigent defendants with funding for necessary defense resources and does not condition the availability of such funding on a defendant's representation by public counsel. Second, we hold that the district court erred
¶ 4 The following discussion provides a brief overview of the factual background in each of the Defendants' cases and of the arguments asserted by the Defendants and the County on appeal.
¶ 5 In 2007, the County charged Branson Parduhn with five counts of forgery, a third degree felony, and two counts of theft by deception, also a third degree felony. At Mr. Parduhn's initial appearance on these charges, the district court concluded that he was indigent and appointed the Salt Lake Legal Defenders Association (LDA) to represent him. Sometime thereafter, Mr. Parduhn received a one-time monetary gift from his grandparents that he used to retain private counsel. After he retained private counsel, LDA withdrew from representation.
¶ 6 Several months later, Mr. Parduhn filed a motion in the district court in which he requested that the court order the County to provide him with funding to hire a handwriting analyst to examine the instruments he allegedly forged. After hearing arguments on the motion, the district court found that, despite Mr. Parduhn's ability to retain private counsel, he remained indigent. But the court denied Mr. Parduhn's motion after concluding that he had failed to demonstrate a "compelling reason" for the funding he requested.
¶ 7 After the district court rejected his motion for funding, Mr. Parduhn filed a petition for interlocutory appeal with the Utah Court of Appeals. The court of appeals granted the petition and certified the case to us.
¶ 8 In 2008, the County charged Randy Jeffs with four counts of attempted aggravated murder, a first degree felony, one count of attempted unlawful discharge of a firearm, a third degree felony, and one count of domestic violence in the presence of a child, also a third degree felony. The County also charged Mr. Jeffs with one count of reckless endangerment, a class A misdemeanor, and one count of interfering with arrest, a class B misdemeanor. At Mr. Jeffs's initial appearance on these charges, the district court found him to be indigent and appointed LDA to represent him. Sometime thereafter, Mr. Jeffs retained private counsel, and LDA withdrew from representation.
¶ 9 Several months later, Mr. Jeffs filed a motion in the district court in which he requested that the court order the County to provide him with funding to hire a private investigator, a ballistics expert, and a medical expert. After hearing arguments on the motion, the district court found that, despite Mr. Jeffs's ability to retain private counsel, he remained indigent. But the court denied Mr. Jeffs's motion after concluding that he had failed to demonstrate a "compelling reason" for the funding he requested.
¶ 10 After the district court rejected his motion for funding, Mr. Jeffs filed a petition for interlocutory appeal, which we granted.
¶ 11 In 2009, the County charged Antony Davis with two counts of rape of a child, a first degree felony, and two counts of aggravated sexual abuse of a child, also a first degree felony. At Mr. Davis's initial appearance on these charges, the district court found him to be indigent and appointed LDA to represent him. Sometime thereafter, Mr. Davis retained private counsel, and LDA withdrew from representation.
¶ 12 Several months later, Mr. Davis filed a motion in the district court in which he requested that the court order the County to
¶ 13 After the district court rejected his motion for funding, Mr. Davis filed a petition for interlocutory appeal, which we granted.
¶ 14 On appeal, the Defendants argue that the plain language of the Act requires local governments to provide an indigent defendant with the defense resources necessary for a complete defense, even if the defendant is represented by private counsel. In support of this position, the Defendants contend that our holding in State v. Burns
¶ 15 In opposition, the County raises three arguments. First, it contends that our holding in Burns is no longer good law and is not controlling on the issue of whether local governments are required to provide indigent defendants represented by private counsel with funding for necessary defense resources. Second, it argues that "LDA is the exclusive source from which indigent legal defense resources, including expert witnesses, may be provided, unless a court, after proper notice and a hearing, finds a compelling reason for the appointment of a noncontracting defense resource." Finally, the County claims that the district court correctly concluded that the Defendants had failed to demonstrate a compelling reason for the funding they requested. We have jurisdiction to hear these appeals pursuant to sections 78A-3-102(3)(b) and 78A-3-102(3)(h) of the Utah Code.
¶ 16 "We review questions of statutory interpretation for correctness, affording no deference to the district court's legal conclusions."
¶ 17 Before reaching the merits of the questions on appeal, we first provide some background concerning the rights of indigent criminal defendants. The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."
¶ 19 To ensure compliance with the requirements that indigent defendants receive effective assistance of counsel and "access. . . to the basic tools of [a] defense,"
¶ 20 In the instant case, we are asked to determine whether our holding in State v. Burns
¶ 21 "When faced with a question of statutory interpretation, our primary goal is to evince the true intent and purpose of the Legislature."
¶ 22 Utilizing these rules of statutory interpretation, we first conclude that the amendments to the Act have not overruled or superseded our holding in Burns. We therefore reaffirm that local governments are statutorily required to provide an indigent defendant with funding for necessary defense resources, even when the defendant is represented by private counsel. Additionally, because the County has conceded that it has not contracted with any entity to provide defense resources to indigent defendants represented by private counsel, we hold that the district court erred in requiring the Defendants to demonstrate a compelling reason for the funding they requested.
¶ 23 In State v. Burns, this court was asked to determine whether "a trial court [could] require a defendant to accept [a public defender] in order to qualify for . . . state-funded [expert] assistance."
¶ 24 After reviewing this language, we determined that the separate and discrete listing of these subsections was "an indication that the right to counsel stands separate and distinct from the right to the investigatory [resources] . . . necessary for a complete defense."
¶ 25 In 2001, after we issued our opinion in Burns, the Legislature revised several sections of the Act by adding the term "defense resources."
¶ 26 First, nothing in the plain language of the 2001 amendments conflicts with our holding in Burns. To the contrary, as noted above, the revised Assignment Provision includes an express statement that all indigent defendants "shall . . . be provided access to defense resources necessary for an effective defense."
¶ 27 Second, although we rely exclusively on the plain language of the Act to reach our conclusion that our holding in Burns remains good law, we note that the legislative history that accompanies the 2001 amendments contradicts the County's position that the Legislature "clearly intended" for the 2001 amendments to overturn Burns.
¶ 28 Similarly, the day after Senator Hillyard's comments, Senator David Gladwell read the proposed amendments to the Senate. Before proceeding with the reading, Senator Gladwell provided the following summary of the amendments' purposes:
¶ 29 Had the Legislature intended to overturn Burns, it could have easily modified the language of the Minimum Standards Provision or otherwise included a requirement in the Act that to receive funding for defense resources an indigent defendant must be represented by public counsel. But the Legislature did not make such changes and instead left the statutory language we relied on in Burns virtually the same. Accordingly, based on this legislative history, and the plain language of the revised Act, we reject the County's argument that the 2001 amendments were "clearly intended to overturn Burns."
¶ 30 In sum, based on the Act's plain language, we hold that our conclusion in Burns remains good law. Specifically, we reaffirm that the Act requires local governments to provide an indigent defendant with funding for necessary defense resources, even when the defendant is represented by private counsel.
¶ 31 Having determined that indigent defendants may be entitled to funding for necessary defense resources even when they are represented by private counsel, the next issue we must resolve is whether the district court erred in requiring the Defendants to demonstrate a compelling reason for the funding they requested.
¶ 32 As explained above, the plain language of the Act requires local governments to provide indigent defendants with both effective counsel and "the investigatory resources necessary for a complete defense."
¶ 33 When read in harmony, the Act's provisions create a four-step process that a court must utilize to determine whether a defendant who is represented by private counsel qualifies for government funding for a requested defense resource.
¶ 34 In the instant case, after determining that each of the Defendants was indigent, the district court proceeded directly to the third step in this process and concluded that the
¶ 35 As explained above, the plain language of the Act requires a defendant to demonstrate a compelling reason for funding only when a local government "has contracted for, or otherwise made arrangements for, the legal defense of [all] indigents, including a competent attorney and defense resources."
¶ 36 In concluding that the County may be obligated to provide the Defendants with the funding they have requested, we fully recognize the significant expenses and administrative burden that might be associated with this result. But the Legislature enacted the Compliance Provision and the Hearing Provision specifically to reduce these potential costs. By failing to contract with an entity to provide defense resources to indigent defendants who are represented by private counsel, the County has not established an exclusive source of indigent legal defense, and has therefore failed to avail itself of the cost-saving measures created by the Act. Thus, notwithstanding these potential policy concerns,
¶ 37 We first hold that our conclusion in Burns—that local governments are statutorily required to provide an indigent defendant with funding for a necessary defense resource, even when the defendant is represented by private counsel—remains good law. Additionally, we hold that the district
¶ 38 Chief Justice DURHAM, Justice PARRISH, and Justice NEHRING concur in Associate Chief Justice DURRANT'S opinion.
Justice LEE, dissenting:
¶ 39 Today the court affords to indigent defendants the right to demand government-funded defense resources even after declining the legal aid defense established for that purpose. In so doing, the court discounts recent amendments to the Utah Indigent Defense Act (IDA) that designate legal aid as the "exclusive source" of a public defense. UTAH CODE ANN. § 77-32-306(4) (2008). I respectfully dissent because I read the 2001 IDA amendments to put indigent defendants to a threshold choice—to accept counsel provided by the local government and thereby opt in to the full menu of defense resources offered in conjunction with that counsel, or instead to opt out of the public defense offered by the government and thus retain control over the resources employed through private counsel.
¶ 40 This result follows from the language and structure of the IDA, which seem to me to preclude a defendant from having it both ways. And even if the statutory text left some doubt about a defendant's right to retain his own lawyer while requisitioning separate defense resources, any such ambiguity ought to be resolved in a way that avoids the numerous logistical and legal problems generated by the court's decision today. For me, those intractable problems confirm what the IDA amendments expressly establish, which is that a county that contracts with a legal aid association is entitled to hold it out to indigent defendants as the "exclusive source from which the legal defense may be provided." Id. That clause seems to me to require denial of the motions for defense resources in the consolidated cases before the court today, and I accordingly dissent.
¶ 41 As the majority explains, in 2000 this court construed the terms of the IDA then in effect to entitle indigent defendants to necessary defense resources even in cases where they declined public representation in favor of private counsel. See State v. Burns, 2000 UT 56, ¶ 32, 4 P.3d 795. The Burns decision was premised on the fact that the then-governing IDA authorized a county to "set up a nonprofit legal aid association to provide the minimum required services," but did not "mandate the packaging of indigent assistance" with public representation. Id. ¶ 30 (citing UTAH CODE ANN. § 77-32-6 (1990)).
¶ 42 The legislature responded to the Burns decision by making extensive amendments to the IDA in 2001. Two of those amendments seem to me to provide what the Burns court found missing in the old statute—language mandating "the packaging of indigent assistance" with public representation. First, new section 302 provides that when a legal aid association like Salt Lake Legal Defenders Association (LDA) is under contract to provide the legal defense required by statute ("including defense resources and counsel"), "the court shall assign the legal aid association . . . to defend the indigent and provide defense resources." UTAH CODE ANN. § 77-32-302(2)(b) (2008) (emphasis added). Second, new section 306 clarifies that "[w]hen a county or municipality has contracted . . . to provide the legal counsel and defense resources required by this chapter" through a legal aid association, that association is the "exclusive source from which the legal defense may be provided," unless there is a showing of a "compelling reason" to secure a defense resource from another source. Id. § 77-32-306(4).
¶ 43 In tandem, these two provisions "mandate the packaging of indigent assistance"
¶ 44 Section 302's conjunctive "and" is significant. It clarifies that when a legal aid association is the county's chosen method of providing a legal defense to an indigent, the association is to provide both the defense and associated defense resources. The conjunctive "and" provides the bundling requirement that was missing in the statute construed in Burns.
¶ 45 The majority's construction overrides this important term. In upholding defendants' requests for unbundled defense resources, the majority authorizes private counsel "to defend the indigent" while requiring the County to fund "defense resources." That strikes me as incompatible with the statutory text, which unambiguously states that district courts "shall" assign the legal aid association to provide both a defense and defense resources.
¶ 46 The majority's approach also fails to give effect to the "exclusive source" proviso in new section 306. This proviso reaffirms the bundling requirement articulated in the conjunctive language of section 302 and deemed missing in Burns. If a defendant with private counsel is entitled to funding for a non-LDA private investigator or expert witness, the legal aid association cannot be said to be the "exclusive source" for the provision of indigent legal defense in the county. Instead, after today's decision, the legal defense in such cases will be provided through a dual system in which one set of indigents will be represented by LDA and another will be represented under a hybrid regime in which private counsel will be at the helm but the county will have to provide funding for defense resources through non-LDA providers.
¶ 47 This dual system is completely foreign to the IDA. The statute recognizes only three mechanisms for providing a legal defense to indigent defendants: a "[l]egal defender's office," which is a "department of county government created and authorized by the county legislative body to provide legal representation," UTAH CODE ANN. § 77-32-201(6) (Supp.2011); a "[l]egal aid association," defined as "a nonprofit defense association that provides counsel and defense resources," id. § 77-32-201(5); and attorneys or providers under contract with the local government entity. See id. § 77-32-302(2) (identifying these three mechanisms). When the government adopts one of these mechanisms, the IDA requires the court to assign the chosen entity to "defend indigent defendants within the county and provide defense resources," id. § 77-32-302(2)(a), and designates that entity as the "exclusive source from which the legal defense may be provided," id. § 77-32-306(4).
¶ 48 By offering a choice among these three mechanisms (legal defender's office, legal aid association, or individual contracts), the legislature apparently aimed to preserve workable defense options for both large and small counties. A defender's office or legal aid association is costly and relatively permanent, so these mechanisms make economic sense only in large counties where the volume of criminal defense work is sufficient to justify this expense. In such counties, however, an established office or aid association is more efficient than relying on individual
¶ 49 Salt Lake County understandably opted for the legal aid mechanism available under the IDA. This method makes sense for a large county where a full-time staff is justified and an aid association can provide an efficient, coordinated defense. Yet the court today forecloses this option as the exclusive source of indigent defense going forward, requiring that a county's legal aid association must be paired with contracted defense resources for any defendant who elects to retain private counsel.
¶ 50 In so doing, the majority eliminates the efficiencies inherent in the legal aid mechanism offered by the legislature and adopted by Salt Lake County. The court faults the County for failing to "avail itself of the cost-saving measures" provided by statute, supra ¶ 36, but in my view the County did just that in electing the legal aid mechanism offered under the IDA. A legal aid association's principal advantages are in its ability to pool its full-time resources in the provision of a complete, coordinated, and well-managed defense. If a county that chooses that coordinated mechanism is required to supplement it with individual contracts for those who retain private counsel, it will lose out on the efficiencies associated with a legal aid association.
¶ 51 However, my objection to the court's approach is not the "policy concern[]" associated with the costs and inefficiencies generated by its decision. Supra ¶ 36. It is that the legislature acted to avoid these problems and the court has overridden its chosen method of doing so. In effect, the court precludes a county from implementing the legal aid association (with its obvious and intended efficiencies) as the "exclusive source" for the defense of indigents, implementing instead a dual system of legal aid defense plus individual contracts for separate defense resources. That approach is incompatible with the language and structure of the IDA, which preserve for counties the right to choose to provide indigents a defense either through a legal aid association under Utah Code section 77-32-302(2)(b) or by "contracting] to provide" the defense through "individual defense resources" under section 302(2)(c). The court's approach accordingly finds no support in the structure or language of the statute, and I reject it on that basis (and not because of a mere policy concern about expenses).
¶ 52 I am unpersuaded by the majority's contrary contentions. First, it is certainly true that "the revised Act requires that defense resources be provided to 'each indigent.'" Supra ¶ 26 (quoting UTAH CODE ANN. § 77-32-302(1)(a)). But that merely begs the question of the method the government is required to employ in defending "each indigent." That question is answered in the amended IDA in the requirement that the district court order the legal aid association to provide the defense and necessary defense resources, and is reaffirmed in the proviso that the association is the "exclusive source" of the indigent's defense. Second, the majority wrongly emphasizes a provision of the IDA that in its view "expressly contemplates the provision of defense resources to indigent defendants separate and apart from the provision of counsel." Supra ¶ 26. A close grammatical and logical examination of the provision in question leads to the opposite conclusion and reinforces the notion that the mechanism selected by the government for indigent defense shall be the "exclusive source" of that defense. Third, as for the statute's legislative history, the statements cited by the majority say nothing of any relevance to the question before the court today. And the majority improperly discounts a floor statement that is relevant and confirms the legislature's intent to overrule Burns.
¶ 53 The majority opinion hinges principally on the repeated assertion that a government
¶ 54 The majority's attempt to explain away the "exclusive source" proviso is similarly circular. It is inaccurate to say that the County has failed "to provide defense resources to all indigent defendants" through its contract with LDA. Supra ¶ 34. Rather, the County has agreed to provide such resources to all indigents so long as their representation conforms to the terms and conditions set forth by contract and endorsed by statute.
¶ 55 Those terms and conditions properly require bundling of the legal defense and associated defense resources. In the County's contract with LDA, LDA agrees to provide, for an annual lump sum paid by the County, both "legal counsel and investigators and support services to indigent defendants" in the County. In context, there is no doubt that LDA's obligation is to represent all qualifying indigent defendants and that its representation will bundle both counsel and support services. The contract calls for LDA's provision of all "legal advice and representation at all stages of the proceedings, to indigent persons entitled thereto . . . pursuant to the provisions of the Utah Code Ann. § 77-32-301." (Section 301 sets forth the minimum standards for defense of an indigent, including the provision of counsel, investigatory resources, and a first appeal of right.)
¶ 56 Thus, despite the majority's contrary assertions, the County's contract with LDA does provide for comprehensive representation of "all indigent defendants."
¶ 57 When a legal aid association provides defense resources to an indigent, it always does so on terms and conditions condoned by statute. Such terms and conditions necessarily restrict a defendant's discretion to select the defense resources that suit his personal preferences. If a defendant demanded that LDA retain the defendant's cousin Vinny as a private investigator, for example, LDA would properly respond by indicating that LDA screens and hires its own investigators and the defendant has no right to requisition his own preferred resource. And the defendant would be stuck (absent a "compelling reason") with LDA's investigator and not entitled to his cousin Vinny—notwithstanding the right of "all indigent defendants" to a comprehensive defense. That defendant, like the defendants in the cases
¶ 58 Those standards limit the IDA-provided defense to the contracted legal aid association as the "exclusive source" for the defense. A defendant who insists on defense resources from another source is effectively opting out of a publicly funded defense. That does not mean that he has been denied the defense that all indigents are entitled to. It simply means that he has opted out of the defense mechanism provided by the county under the IDA.
¶ 59 The majority also relies on a provision of section 302 that states that a defendant may "`request[] counsel or defense resources, or both.'" Supra ¶ 26 (quoting UTAH CODE ANN. § 77-32-302(1)(a) (2008)). In the majority's view, the disjunctive "or" indicates that the IDA "expressly contemplates the provision of defense resources to indigent defendants separate and apart from the provision of counsel." Supra ¶ 26 (emphasis added). That construction fails as a matter of logic and grammar.
¶ 60 Section 302(1)(a) is a threshold provision identifying the kinds of resource requests that trigger the operative provisions of the statute. Under this provision, a defendant's request for any or all defense resources triggers a right to a government-provided defense upon a finding of indigency. But rather than "expressly contemplat[ing] the provision of defense resources to indigent defendants separate and apart from the provision of counsel," as the majority contends, supra ¶ 26, this provision confirms that the IDA requires that these elements of a defense be provided together or not at all.
¶ 61 This understanding is confirmed by a grammatical parsing of the governing language. The revised assignment provision states that "[l]egal counsel shall be assigned to represent each indigent and the indigent shall also be provided access to defense resources necessary for an effective defense. . . if: (a) the indigent requests counsel or defense resources, or both." UTAH CODE ANN. § 77-32-302(1) (emphases added). This provision establishes a cause-and-effect relationship between a conditional, subordinate clause with three sub-parts (section 302(1)(a)) and a main clause (section 302(1)).
¶ 62 Because the terms of section 302(1)(a) are disjunctive, each type of request serves as an independent trigger for the provisions of section 302(1). In contrast, the provisions of section 302(1) are conjunctive, a relationship that is highlighted by the complementary use of the mandatory shall for both the provision of counsel and the provision of defense resources. Thus, any of the requests contemplated in section 302(1)(a) automatically triggers the mandatory provision of both counsel and defense resources.
¶ 63 A similar paradigm is found in section 302(1)(b), which provides that if "the court. . . orders counsel, defense resources, or both and the defendant does not affirmatively waive . . . the opportunity to be represented and provided defense resources," then, according to section 302(1), "[l]egal counsel shall be assigned," and "the indigent shall also be provided defense resources." Id. § 77-32-302(1)(b) (emphases added). Here,
¶ 64 The majority also deems its construction to be confirmed by statements in the IDA's legislative history, but the statements it relies on are irrelevant. I see no reason to credit Senator Hillyard's personal characterization of the operative effect of the IDA—that the statute "acknowledge[s]" the "right" of an indigent who hires his own lawyer to have a court-appointed expert. RECORDING OF UTAH SENATE FLOOR DEBATES, S.B. 154, 54TH LEG., GEN. SESS. (Feb. 12-13, 2001) (statement of Sen. Hillyard), available at http://le.utah.gov/asp/audio/index.asp?Sess= 2001GS&Day=0&Bill=SB0154&House=S. The majority omits important context from Senator Hillyard's statement, in which he indicates that the "right" that he acknowledged arises only in circumstances where the indigent defendant "take[s] [the expert] off the panel that the court-appointed attorneys use all the time." Id. As this context makes clear, Senator Hillyard's statement makes no reference to any enacted provision of the IDA nor to any attempt to elaborate on the meaning of its terms. It is instead a rank assertion of a single legislator's subjective intent. And that intent bears no relation to—and is affirmatively undermined by—the express terms of the statute, which say nothing about any "panel" of experts that an indigent defendant can select from.
¶ 66 The majority gives just such dignity to Senator Hillyard's statement. His personal views of the effect of the IDA amendments are not legislation, despite the fact that they were articulated by a legislator. Legislators make law only by expressing their views in a bill that becomes a statute upon bicameral enactment and presentment to the executive. If Senator Hillyard sought to enact a right of an indigent defendant who chooses a private lawyer over LDA to pick an expert "off [a] panel that the court appointed attorneys use all the time," it was incumbent on him to do more than speak of it in a floor statement in the Senate. Because he failed to do so and the right he spoke of has no plausible mooring in the statute, we should not credit it as "contradict[ing] the County's position" or "strongly suggest[ing]" the right the court establishes today. Supra ¶ 27.
¶ 67 In all likelihood, Senator Hillyard's reference to a "panel" of experts was a description of a section of the statute that is not before the court today. In context, his reference to taking an expert from a "panel" of experts that the county has "a contract with . . . limiting what they can charge on [] fees and what the county has to pay for" seems to reference section 77-32-302(2)(c). This section deals with the circumstance in which the county chooses to provide indigent representation not by establishing a legal defenders office (discussed in section 302(2)(a)) or by contracting with a legal aid association (discussed in section 302(2)(b)), but by "contract[ing] to provide" the defense and defense resources "through individual attorneys, individual defense resources, or associations providing defense resources." UTAH CODE ANN. § 77-32-302(2)(c). In that context, perhaps it could be said that an indigent defendant could "take [an expert] off the panel that the court-appointed attorneys use all the time" under a contract "limiting what they can charge on the fees and what the county has to pay."
¶ 68 And in that circumstance, perhaps Senator Hillyard would be correct in asserting that "to use an expert" a defendant would
¶ 69 Although the floor statements relied on by the majority are immaterial, there is some discussion in the legislative history that speaks to the meaning of the statutory text that is at issue here. The relevant discussion is a statement by Representative Curtis of the import of the IDA provision that authorizes a county to "contract[] with a nonprofit legal aid or similar association that provides both counsel and defense resources." RECORDING OF HOUSE FLOOR DEBATES, S.B. 154, 54TH LEG., GEN. SESS. (Feb. 26, 2001) (statement of Rep. Curtis), available at http://le. utah.gov/asp/audio/index.asp?Sess=2001GS &Day=0 & Bill=SB0154 & House=H. After explaining that the 2001 amendments "deal[] with the recent Supreme Court decision that allows defendants to utilize publicly funded expert witnesses and investigators, even though the defendant may be financially able to retain private counsel," Representative Curtis explained that the amended language of the IDA "allows the cities and counties to control the costs of those indigent defense services by providing expert witnesses and investigators in one of three ways." Id. Turning to the legal aid association scenario at issue in this case, Representative Curtis noted that the amended statute provides what was missing in Burns: a clarification that "the defendant must use the legal aid association for the total defense package and defense resources, unless the defendant can demonstrate a compelling reason for going outside the system." Id. (emphasis added). Significantly, Curtis then explained that this "exclusive source" proviso indicates "the legislature's intent to make the legal defenders association the sole source for defense [inaudible], unless the court finds a compelling reason otherwise." Id. (emphasis added).
¶ 70 Representative Curtis's statement contradicts the majority's construction of the IDA. Burns rested on the legislature's failure to "mandate the packaging of indigent assistance with LDA representation," 2000 UT 56, ¶ 30, 4 P.3d 795, and the majority deems that still missing in the 2001 amendments. But in case of any doubt about the import of the "exclusive source" proviso in the statute, Representative Curtis clarified that in a county that has contracted with a legal aid association, "the defendant must use the legal aid association for the total defense package." Thus, the only relevant legislative history confirms what the statutory language makes quite clear—that the 2001 amendments to the IDA overruled Burns by subjecting indigent defendants to a threshold choice whether to accept the "total defense
¶ 71 When choosing between two alternative constructions of ambiguous language, we may "look to the consequences of those readings to determine the meaning to be given the statute." State v. Redd, 1999 UT 108, ¶ 12, 992 P.2d 986. Specifically, where one interpretation produces problems that are not easily resolved under the statute, we may reject it in favor of an alternative approach that avoids these concerns. See Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶¶ 70-73, ___ P.3d ___ (Lee, J., dissenting).
¶ 72 Such concerns may arise, for example, where one construction of a statute introduces problems that require the court to become a policymaker instead of an interpreter.
¶ 73 The majority's interpretation of the IDA fails on that basis. For reasons elaborated below, the majority's approach takes the court into the realm of legislative policymaking, while my construction keeps us in the proper sphere of judicial interpretation. That is a basis for rejecting the majority's view in favor of mine even if the statute were open to both approaches.
¶ 74 The problems with the majority's approach arise from the lack of a "gatekeeping"
¶ 75 When a defendant is required to seek all defense resources from a single "exclusive source" such as LDA, the legal aid lawyer assigned to the case performs a gatekeeping function in utilizing only those resources that are reasonably necessary. LDA is charged by statute and appointed by the court to "defend the indigent and provide defense resources," which include any necessary "competent investigator, expert witness, or other appropriate means necessary[] for an effective defense of an indigent." UTAH CODE ANN. § 77-32-201(3) (Supp.2011). Ordinarily, it is up to LDA to make an informed decision as to what resources are reasonably necessary, weighing the costs and benefits of any particular resource.
¶ 76 As LDA explained in its amicus brief to the court, requests for defense resources are subject to a careful screening process within LDA. When an LDA attorney perceives the need for a particular expert witness, for example, the attorney submits a request to the director, explaining why the expert is needed and how his testimony will affect the case. No expert may be retained until the director approves. The director's approval is based on an evaluation of the marginal cost and benefit of the particular expert. And usually the director's authorization will be up to a certain dollar ceiling, to be revisited if and when there is a perceived need for an increase.
¶ 77 The use of LDA investigation resources is also subject to an internal screening mechanism. LDA employs investigators on its staff, and attorney requests for investigation resources are channeled through the investigator assigned to a particular attorney. Each investigator prioritizes the requests he receives based on the relative importance of those requests, taking into account the seriousness of the case, the timing of upcoming hearings or trial, and other significant factors. And again, any disagreements within LDA on those issues are subject to review and resolution by the director, who oversees both the lawyers and the investigators within the association.
¶ 78 None of this screening is logistically possible in the hybrid scenario endorsed by the majority today. Where the indigent defendant is represented by private counsel, there is no LDA lawyer with an educated understanding of the case informed by attorney-client-privileged communication with the defendant. The only person with that crucial understanding of the case will be the defendant's private lawyer. Therein lies the problem. Unlike LDA counsel, who has an insider's understanding of the costs of and logistical limitations on LDA defense resources, the private lawyer sees only the benefit side of the equation. Private counsel will accordingly be prone to over-demand defense resources from the County. And the County will be in no position to give meaningful pushback, as it understands the cost of the requested defense resource but cannot meaningfully assess its benefit.
¶ 80 It is no answer to suggest that the County could deal with this problem by establishing some sort of indigent defense review board, with oversight by "shadow" legal counsel who can attempt to review and evaluate the merits of a resource request by a defendant's private attorney. Such a response would involve mechanisms and decisions that extend well beyond those contemplated by the IDA. If the County has to appoint shadow counsel to evaluate resource requests, it will be even more obvious that LDA is not the "exclusive source" for the indigent's defense.
¶ 81 The problem is illustrated by the motions that led to the appeals in the consolidated cases before the court. In the Jeffs case, for example, the defendant moved for (a) appointment of a private investigator to interview police witnesses, neighbors who may have been eyewitnesses, and medical personnel who saw and treated defendant; (b) a ballistics expert who may be able to offer expertise of relevance to defendant's state of mind in firing his weapon; and (c) medical experts to testify that defendant had diminished capacity caused by certain medications that he was taking. In advancing this motion, Jeffs asserted that each of those resources was necessary to an effective defense. Yet the County is in no position to evaluate the relative importance of these resources, much less to weigh their marginal costs and benefits. Without some involvement in the case by counsel retained by the County, the County may well be stuck taking Jeffs' counsel's word for it, acceding to these resource requests without any informed basis for evaluating whether they are really necessary. And this may well be just the beginning of Jeffs' demand on the County's defense resources, as Jeffs' motion makes not just an extensive demand on investigatory and expert resources but also suggests that "as the investigation progresses, the need for such. . . expert[s] will increase."
¶ 82 The prospect of the County's appointment of shadow counsel to review these requests is equally problematic. Introducing shadow counsel would open a Pandora's Box of legal and ethical quandaries, such as the nature and extent of shadow counsel's ethical duties, how to resolve disputes between County lawyers and private counsel, and what to do if the client is uncomfortable establishing an attorney-client relationship
¶ 83 As we resolve these and other questions generated by today's precedent, we will necessarily be fabricating judicial standards that lack any mooring in any statutory language, as the hybrid system endorsed today is nowhere provided for by statute. That process will make the essential defect of today's decision increasingly apparent: The hybrid system of representation endorsed by our court is a judicial creation, not a mechanism contemplated by the legislature. We need not start down this path to judicial legislation. I would decline to do so on the ground that the 2001 amendments to the IDA provide that LDA is the "exclusive source" of an indigent's legal defense.
¶ 84 As the defendants in the consolidated cases before the court have indicated, the constitutional right to counsel encompasses the prerogative of choosing counsel of one's choice and of receiving resources necessary to an adequate defense. Such rights are qualified ones, however, affected by the "avenues which [the defendant] chose not to follow as well as those he 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, he has received the private counsel of his choice and has no constitutional or statutory right to defense resources from a secondary source backed by government funding.
¶ 85 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). Thus, a defendant has every right to decline the counsel the government offers in favor of the one he prefers, but in so doing he loses the right to a publicly funded defense. Id.
¶ 86 A defendant who opts out of public representation also loses the right to government-funded defense resources. That result is prescribed by statute in Utah, for all of the reasons explained in the foregoing sections of this opinion. And despite vague assertions to the contrary by the appellant-defendants, that result is entirely consistent with the requirements of the United States Constitution. An indigent defendant has a right to "the basic tools of an adequate defense," Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), not "the legal arsenal that may be privately retained by a criminal defendant."
¶ 87 Thus, I see no legal basis for defendants' claimed right to decline public representation while still demanding government-funded defense resources. By opting out of the government's designated defense provider, a defendant has likewise lost the resources it provides. That result is the natural consequence of the defendant's choice, and it offends neither the Constitution nor the governing statute. I accordingly dissent.
The precise terms of these stipulations are significant. They clarify that there is a contract between LDA and the County for the provision of "defense resources to all indigent defendants," supra ¶ 33, so long as defendants comply with the terms and conditions of representation adopted by LDA and condoned by the IDA.