Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 1 of 63
EXHIBIT A Processed Served Summons and Complaint

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 2 of 63

John P. Harrington (5242) Steven G. Jones (15063) HOLLAND & HART LLP 222 S. Main Street, Suite 2200 Salt Lake City, Utah 84101 Telephone: (801) 799-5800 Fax: (801) 799-5700 jharrington@hollandhart.com sgjones@hollandhart.com
John Mejia (13965) Leah Farrell (13696) AMERICAN CIVIL LIBERTIES UNION OF UTAH 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Fax: (801) 532-2850 jmejia@acluutah.org lfarrell@acluutah.org
Attorneys for Plaintiffs and Class Members

ATTORN EY GENER AL
JUN 22. 2016
'--- - - - -......I
EXECUTIVE

THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

COLTON GUY REMICK; an individual; SKYLAR W. GARNER, an individual; BRYCE TUCKER LLOYD, an individual; ANTHONY MURDZAK, an individual; COLTER RICKS, an individual; BRANDON TIMMS, an individual; and JOHN DOES 1100;
Plaintiffs,
vs.
STATE OF UTAH and SEAN D. REYES, in his capacity as Attorney General of the State of Utah,
Defendants.

SUMMONS
Case No. 160903921 Judge .William K. Kendall

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 3 of 63

TO THE STATE OF UTAH:
You are summoned and required to answer the Complaint attached hereto. Within twenty-one (21) days after service of this Summons, you must file your written answer with the
Clerk of the Court at the following address: Third Judicial District Court, Salt Lake County, 450 South State Street, Salt Lake City, Utah 84114, and you must mail or deliver a copy to Plaintiffs' attorney at the address listed above. If you fail to do so, judgment by default may be taken against you for the relief demanded in the Complaint.
Dated this 21st day ofJune, 2016. HOLLAND & HART LLP
Isl John P. Harrington John P. Harrington Steven G. Jones
AMERICAN CIVIL LIBERTIES UNION OF UTAH
John Mejia Leah Farrell Attorneys for Plaintiffs and Class Members
Serve: The State of Utah clo Attorney General Utah State Capitol Complex 350 North State Street Suite 230 Salt Lake City, UT 84114

8899515_1

2

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 4 of 63

John P. Harrington (5242) Steven G. Jones (15063) HOLLAND & HART LLP 222 S. Main Street, Suite 2200 Salt Lake City, Utah 84101 Telephone: (801) 799-5800 Fax: (801) 799-5700 jharrington@hollandhart.com sgjones@hollandhart.com
John Mejia (13965) Leah Farrell (13696) AMERICAN CIVIL LIBERTIES UNION OF UTAH 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Fax: (801) 532-2850 jmejia@acluutah.org lfarrel l@acluutah.org
Attorneys for Plaintiffs and Class Members

THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

COLTON GUY REMICK; an individual; SKYLAR W. GARNER, an individual; BRYCE TUCKER LLOYD, an individual; ANTHONY MURDZAK, an individual; COLTER RICKS, an individual; BRANDON TIMMS, an individual; and JOHN DOES l100;
Plaintiffs,
vs.
STATE OF UTAH and SEAN D. REYES, in his capacity as Attorney General of the State of Utah,
Defendants.

CLASS ACTION COMPLAINT FOR DECLARATORY RELIEF
Case No. 160903921 Judge .William K. Kendall

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 5 of 63

Pursuant to§§ 78B-6-40, et seq., UTAH CODE ANN., and Rule 57 of the Utah Rules of

Civil Procedure, Plaintiffs, on behalf of themselves and all others similarly situated, by and

through the undersigned counsel, upon knowledge with respect to their own acts and on

information and belief as to other matters, hereby complain of Defendants and allege as follows:

INTRODUCTION 1. Plaintiffs bring this civil rights class action to remedy Utah's failure to provide

constitutionally adequate legal representation to indigent adults accused of crimes in Utah's

District and Justice courts for which there is a possibility of incarceration. This failure deprives

and threatens to deprive plaintiffs of rights guaranteed to them by the Sixth and Fourteenth

Amendments to the United States Constitution, Article I, § 12 of the Utah Constitution, and§ 77-

32-301, UTAH CODE ANN.

2. Plaintiffs seek a declaration from this Court that the indigent defense provided by

the State of Utah, as authorized and operated by the State of Utah and Attorney General Reyes

(collectively, "Defendants"), deprives Plaintiffs of their rights under the Sixth and Fourteenth

Amendments to the United States Constitution. Plaintiffs also seek a declaration from this Court

that the indigent defense system in the State of Utah, as operated by Defendants, violates

Plaintiffs' rights under Article I, §§ 12 and 24 of the Utah Constitution (right to counsel and

uniform operation of laws); and§ 77-32-301, UTAH CODE ANN., the Utah Indigent Defense Act.

Plaintiffs further seek injunctive relief to remedy the systemic failures that lead to this action.

3. The Sixth Amendment of the United States Constitution guarantees that a person

accused of a crime has the right to assistance of counsel for his or her defense. This

constitutional guarantee "cannot be satisfied by mere formal appointment." United States v.

Cronic, 466 U.S. 648, 655 (1984) (quoting Avery v. Alabama, 308 U.S. 444, 446 (1940)).

8883214_2

2

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 6 of 63

Rather, the Sixth Amendment requires defense counsel to subject the prosecution's case to "the crucible of meaningful adversarial testing." Id. at 656. It is the State's duty to safeguard this right and ensure that people who face the threat of imprisonment receive competent assistance of counsel regardless of their income. Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (sometimes referred to as "Gideon").
4. Article I, § 12 of the Utah Constitution (Rights of Accused Persons) guarantees that in all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel. Where a person is charged with an offense that may be punished by imprisonment, "the accused is entitled to the effective assistance of a competent member of [the] bar who is willing to identify with the interests of the defendant and present the available defenses." State v. Wulffenstein, 733 P.2d 120, 121(Utah1986); State v. Gray, 601P.2d918, 920 (Utah 1979).
5. Article I, Section 24 of the Utah Constitution (Uniform Operation of Laws) mandates that: "[a]ll laws of a general nature shall have uniform operations."
6. The Utah Indigent Defense Act requires that indigent defendants be provided: "timely representation by competent legal counsel," the "investigatory resources necessary for a complete defense," and "undivided loyalty of defense counsel." UTAH CODE ANN.§ 77-32-301.
7. The State of Utah has the exclusive duty to provide indigent persons a constitutionally sufficient defense. Gideon, 372 U.S. at 342-43. The State of Utah has completely abdicated this duty.
8. Rather than provide indigent criminal defense itself, the State of Utah has statutorily delegated that duty to the counties and municipalities. UTAH CODE ANN. § 77-32-306.

8883214_2

3

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 7 of 63

While this delegation might be acceptable ifthe State of Utah were to provide the proper funding, logistical support, or oversight to the counties and municipalities, the State has done the exact opposite. In fact, the State of Utah presently provides absolutely no financial support to any of its 29 counties, nor to any of its over 100 municipalities. Utah is one of only two states in the nation to refuse to provide any such state funding or supervision. In essence, the State of Utah has not delegated its responsibilities, it has abnegated its responsibilities
9. In Utah, counties and municipalities provide criminal defense to indigent people as a contracted service. In general, this contracting involves counties and municipalities periodically seeking bids from private attorneys on contracts to provide all indigent defense for the county or municipality.
10. With neither guidance nor oversight from Defendants, these contracts are poorly structured, violate widely accepted American Bar Association standards, and lack any mechanism for identifying conflicts of interest. Almost without exception, the contracts provide a fixed flat fee for compensation, regardless of the number of cases the contract attorneys undertake. Also almost without exception, the compensation to public defenders is inadequate to reasonably compensate them, and is invariably lower than the compensation given to prosecutors, with nothing resembling parity between defense and prosecution.
11. Certain county contracts with public defenders require the attorneys to pay the costs of investigators, testing, and expert witnesses with no additional funding from the county, which disincentivizes attorneys from paying for such services out of their own pocket.
12. All counties require contract attorneys to pay for their own office expenses, overhead, and support staff. As a result, many, if not most, contract attorneys (save for two

8883214_2

4

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 8 of 63

contracted county legal defender offices) are forced to take on additional private cases for paya particularly dangerous practice absent any written guidelines or policies governing conflicts of interest and caseloads.
13. Counties have no written requirements, policies, or standards for evaluating potential conflicts. Counties keep no records of how many cases are assigned to their public defenders.
14. Defendants, like the counties and municipalities, have failed to implement any written policies and/or guidelines regarding the selection, required qualifications, or compensation of public defense counsel. Defendants do not supervise and evaluate public defense counsel. Defendants do not require or provide to public defense counsel continuing legal education specific to criminal defense issues. Defendants do not have guidelines governing the identification and reassignment of conflicts of interest or the appeal ofreimbursement requests. Defendants do not monitor caseloads of public defenders. Defendants are unable to identify the public defenders who are providing indigent defense services. There is no central registry of public defenders, much less their individual caseloads.
15. Because of Defendants' lack of proper diligence, there is no practical way for an independent observer to efficiently determine crucial facts such as: the number of cases assigned to a particular public defender; the available resources for public defenders; or the number of trials or contested motions or hearings involving indigent defendants.
16. Without access to this type of data, there is no practical way for independent observers to determine whether the public defense in a county or municipality is living up to the key criteria for determining whether the indigent defense services are constitutionally adequate.

8883214_2

5

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 9 of 63

Such hallmarks include timely meetings with indigent clients (particularly those in custody), conducting discovery, calling expert witnesses, and vigorously contesting the criminal charges.
17. Because neither Defendants nor the counties or municipalities keep any records about the indigent defense system, there is no data-driven or statistical analysis of the Utah indigent defense system.
18. Defendants have been aware of the acute problems of Utah's indigent defense system for years.
19. First, the lack of funding or oversight is obvious on its face to Defendants. Defendants have long been aware that Utah is truly an outlier among the states in that it is nearly alone in providing no state funding or oversight whatsoever.
20. Moreover, despite the difficulty in data collection, over the last several years, several reports have been issued regarding Defendants' provision of indigent defense. Each has found a system in crisis.
21. For example, in 2011, the American Civil Liberties Union of Utah published its investigation of indigent defense entitled "Failing Gideon: Utah's Flawed County-by-County Public Defender System" (www.acluutah.org/images/Failing Gideon.pdf) (last viewed on June 20, 2016).
22. In 2012, the Sixth Amendment Center was engaged by the Utah Judicial Council (through a grant from the U.S. Department of Justice) to conduct an assessment of Utah's indigent defense system. On October 26, 2015, the Sixth Amendment Center published its report entitled "The Right to Counsel in Utah -An Assessment ofTrial-Level Indigent Defense Services" (sixthamendment.org/what-we-do/our-current-projects/Utah-project-page/) (the "6AC

8883214_ 2

6

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 10 of 63

Report") (sixthamendment.org/what-we-do/our-current-projects/Utah-project-page/) (last viewed on June 20, 2016).
23. On the same day, the Utah Judicial Council published its companion analysis entitled "Report - Judicial Council Study Committee on the Representation ofIndigent Criminal Defendants in Trial Courts" which can be found at (https://www.utcourts.gov/knowcts/adm/docs/Indigent_Defense_Committee_Report.pdt) (last viewed on June 20, 2016).
24. Each report speaks for itself as to the glaring deficiencies in the system. 25. As a direct result of Defendants' actions and inactions, members of the Plaintiffs' Class have suffered, and will continue to suffer, irreparable harm.
JURISDICTION AND VENUE 26. This Court has subject matter jurisdiction over this action for declaratory and injunctive relief pursuant to UTAH CODE ANN.§ 78A-5-102 (original jurisdiction), Utah. R. Civ. P. 57 (declaratory judgments), and UTAH CODE ANN.§ 78B-6-401 Gurisdiction of declaratory judgment action). 27. This Court has personal jurisdiction over the Defendants under Utah. R. Civ. P. 17. Defendant Sean D. Reyes is a public official of the State of Utah who is sued in his official capacity in order to enforce the performance of his official duties, UTAH CODE ANN.§ 67-5-1 (duties of the attorney general), and the State has consented to be sued for violations of its own Constitution. This Court has jurisdiction over this action under Utah Const. Art. VIII, § 5 and UTAH CODE ANN.§ 78A-5-102(1) Gurisdiction of district court).

8883214_2

7

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 11 of 63

28. Venue is proper in this judicial district pursuant to UTAH CODE ANN. § 788-3-302

because Defendants are found in the State of Utah and committed certain wrongs giving rise to

this action within this judicial district.

I. PLAINTIFFS

PARTIES

29. Class-Action Representative Colton Guy Remick ("Remick") is currently

incarcerated in the Tooele County Detention Center in Tooele, Utah, with pending charges of

possession of a forgery device (3rd Degree Felony), possession or use of a controlled substance

(3rd Degree Felony), and use or possession of drug paraphernalia (Class B Misdemeanor).

Despite being incarcerated since May 4, 2016, Remick has only spoken to his public defender

once, at his initial appearance. When Remick met with his public defender, it was only for a

short time and was in the presence of many other defendants, rather than in a confined,

confidential location. Other defendants assigned to the same public defender were in a line

waiting to meet with the public defender; because of the wait, some defendants were incented to

accept a plea deal because, if a plea deal was rejected, defendant would have to go to the back of

the line, and wait at least one more hour to again speak with the public defender.

30. Class-action representative Plaintiff Skylar W. Garner ("Garner") is a 32 year old

married man with two children under the age of five who is currently incarcerated in the Carbon

County jail due to a violation of a No Contact order. Prior to his arrest, Gamer held two jobs as

a technician and maintenance specialist. Since his arrest, he has had very little contact with his

public defender. The public defender has given Gamer no discovery or police reports. His

public defender has made no inquiry of Garner as to the facts surrounding the charge. He has

spoken with his public defender for less than 5 minutes.

8883214_ 2

8

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 12 of 63

31. Class-Action Representative Bryce Tucker Lloyd ("Lloyd") is currently incarcerated in the Tooele County Detention Center located in Tooele, Utah, with pending charges of burglary (2nd degree felony), unlawful acquisition, possession, or transfer of a card (3rd degree felony), possession or use of a controlled substance (3rd degree felony), unlawful use of a financial transaction (Class B misdemeanor), and use or possession of drug paraphernalia (Class B misdemeanor). When Lloyd met with his public defender at his initial appearance, it was only for a short time and was in the presence of several other defendants, rather than in a confined, confidential location. Lloyd's public defender has been so habitually unresponsive to his inquiries that Lloyd has stopped attempting to contact him.
32. Class Action Representative Plaintiff Anthony Murdzak ("Murdzak") is currently incarcerated in the Cache County Jail located in Logan, Utah, with pending charges of theft (3rd Degree Felony) and violation of firearm restrictions (Class A Misdemeanor). Murdzak was arrested on May 28, 2016, but not arraigned until June 7, 2016, ten days after his arrest, at which point he was appointed counsel. He did not meet with counsel prior to the arraignment and the only meeting he had with his defense counsel was during the arraignment. Murdzak received no charging sheet and was not aware of the charges against him and had no information as to why the firearm restriction charge had been made, as he had no firearm at the time of his arrest, nor was one found in the vehicle in which he was driving. Following the arraignment, Murdzak had not met with defense counsel, had received no discovery, was unaware of when he would next meet with his defense counsel or when a preliminary hearing was set for his case.
33. Class Action Representative Plaintiff Colter Ricks ("Ricks") is currently incarcerated in the Cache County Jail located in Logan, Utah, with pending charges of failure to

8883214_ 2

9

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 13 of 63

stop (Class A Misdemeanor), possession of drug paraphernalia (Class A Misdemeanor) and

possession ofmethamphetamine (3rd Degree Felony). Ricks was arrested on May 28, 2016. He

was arraigned on May 31, 2016 via video conference. Mr. Ricks had no counsel at the time of

his arraignment and during the arraignment, bail for a prior charge was revoked and bail for his

current charges was denied. It was only after bail had been revoked on the prior charge and had

been denied for the current charges that Ricks was appointed counsel. Despite having counsel

appointed after the arraignment, Ricks has not met with defense counsel. Ricks' pre-trial hearing

is set for June 27, by which point he will have spent a month in jail, having not met with a

defense lawyer.

34. Class Action Representative Plaintiff Brandon Timms ("Timms") is currently

incarcerated in the Cache County Jail located in Logan, Utah, with pending charges of theft

(Class B Misdemeanor) and burglary (2nd Degree Felony). Timms was originally arrested in

Salt Lake County, but was transported and incarcerated in the Cache County Jail because the

offenses for which he was charged allegedly took place in Logan, Utah. While he was arrested

on June 2, 2016, Timms was not arraigned until June 13, 2016, eleven days after his initial arrest

and was not provided with counsel before his arraignment.

II. DEFENDANTS 35. Defendant State of Utah ("State of Utah" or "Utah") is sued for violations of the

Utah State Constitution. The State Capitol and center of State government are located in Salt

Lake County.

36. Defendant Sean D. Reyes ("Defendant AG" or "Utah AG") is the elected

Attorney General of Utah and is sued in his official capacity as the person in charge of enforcing

laws of the State of Utah and the Utah and U.S. Constitutions. Pursuant to Article VII,§ 16 of

8883214_2

10

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 14 of 63

the Constitution of Utah, the Attorney General "shall be the legal adviser of the State officers ...

and shall perform such other duties as provided by law."

37. Under§ 67-5-1(6), UTAH CODE ANN., the Utah Attorney General shall "exercise

supervisory powers over the district and county attorneys of the state in all matters pertaining to

the duties of their offices, and from time to time require of them reports of the condition of

public business entrusted to their charge."

38. The Utah AG is a member of the executive branch of the Utah state government

and is charged with the supervision of criminal prosecutions within Utah, including indigent

adult defendants. The Utah AG has failed to supervise the prosecution of indigent defendants by

ignoring the constitutional defects existing in the state indigent defense system which have been

and continue to be readily apparent. The Utah AG has not required reports on the condition of

"public business entrusted" to the district and county attorneys pertaining to the indigent defense

system. The Utah AG has also failed to protect the constitutional rights of indigent persons

charged with criminal wrongdoing in Utah.

39. The Utah AG maintains his principal office at the Office of the Attorney General,

Utah State Capitol Complex, 350 North State Street, Suite 230, Salt Lake City, Utah 84114,

which is located in Salt Lake City and within this judicial district.

CLASS ACTION ALLEGATIONS 40. Plaintiffs incorporate by reference all previous and following allegations of this

Complaint as if fully laid out here.

41. Plaintiffs Remick, Garner, Lloyd, Murdzak, Timms and Ricks bring this action

pursuant to Utah R. Civ. P. 23(a), 23(b)(l), 23(b)(2) and 23(b)(3) on behalf of themselves and all

others similarly situated.

8883214_2

11

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 15 of 63
42. The class represented by the named Plaintiffs (the "Class") consists of all indigent persons who have been or will be charged with crimes for which incarceration is a possible consequence of a conviction.
43. As indigent persons unable to afford to hire counsel to defend them, class members are dependent upon Defendants to provide them with counsel and other associated services necessary for their defense.
44. Class members have been and are continuing to be harmed by the Defendants' failure to fund, administer, or supervise Utah's indigent criminal defense system as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, § 7 and 12 of the Utah Constitution, and as required under the Utah Indigent Defense Act (Utah Code Ann.§ 77-32-101 et. seq.).
45. Certification of this action as a class action is appropriate under Utah R. Civ. P. 23(b) for the following reasons:
(a) Separate prosecution of these actions by individual class members would create a risk of differing and inconsistent adjudications, creating the possibility of establishing incompatible standards of conduct for Defendants with respect to members of the Class;
(b) The Class is so numerous and fluid as to make joinder of all members of the Class impracticable. At any point in time, hundreds of indigent persons with pending criminal charges punishable by imprisonment must rely on appointed defense counsel for legal representation;

8883214_2

12

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 16 of 63
(c) Defendants have acted or refused to act on grounds that are generally applicable to the Class, making declaratory relief with respect to the entire Class appropriate; and,
(d) Common questions of law, fact, and relief relating to and affecting the individual rights of class members predominate over any questions affecting individual class members.
46. Questions oflaw common to the class include, but are not limited to: (a) Whether Defendants have a Constitutional duty under both the United
States Constitution and the Utah Constitutions to provide counsel and related services to indigent persons charged with crimes for which incarceration is possible;
(b) The extent and nature of Defendants' Constitutional duties to provide oversight and supervision for appointed counsel and related defense services to the class members;
(c) Whether Defendants are in violation of their obligations under the Sixth and Fourteenth Amendments to the United States Constitution to ensure that defense counsel appointed for class members have the resources necessary to provide class members with constitutionally adequate representation;
(d) Whether Defendants are in violation of their obligations under Art. I, §§ 7 and 12 of the Utah Constitution to ensure that defense counsel appointed for class members have the resources necessary to provide class members with constitutionally adequate representation;

8883214 2

13

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 17 of 63

(e) Whether Defendants are in violation of their obligation under Utah Code Ann.§ 77-32-101 et. seq. to ensure that indigent defense services provided by the State of Utah comport with the standards laid out in the Act; and
(f) Whether the State's delegation of the responsibility for indigent defense to the counties creates disparate access to the fundamental right to counsel in violation of both the Sixth Amendment and Fourteenth Amendments to the United States Constitution and Art. I, § 24 of the Utah Constitution, which states: "All laws of a general nature shall have uniform operations."
47. Questions of fact common to the class include, but are not limited to: (a) Whether Defendants have failed to ensure that defense counsel appointed
to represent class members have been provided with the resources necessary to adequately challenge the State's charges against the class members; and
(b) Whether, as a result of Defendants' actions and omissions, class members have been and are currently being harmed based on the inability of appointed defense counsel to provide them with constitutionally and statutorily adequate legal representation.
48. The claims of the named Plaintiffs are typical of the claims of the Class as a whole.
49. The claims of the named Plaintiffs arise from the same acts and/or omissions of Defendants, as do the claims of the members of the Class.
50. Class members have no significant interest in individual control of these claims that would make class action inappropriate.

8883214_2

14

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 18 of 63

51. The resolution of the claims presented by the Class is more likely to result in fair and efficient adjudication than other available methods.
52. Based on these facts, prosecution of this case as a class action is superior and preferable to the prosecution of myriad individual actions.
53. The individuals identified as named Plaintiffs will fairly and adequately protect the interests of the Class and will vigorously prosecute this suit on behalf of the Class. Plaintiffs and their legal counsel know of no conflicts of interest between the named Plaintiffs as representatives and class members concerning the relief sought in this complaint.
54. The named Plaintiffs are jointly represented by attorneys associated with the American Civil Liberties Union of Utah ("ACLU") and the law firm of Holland & Hart LLP. The ACLU has extensive experience in successfully representing individuals and classes in similar actions. The attorneys for the named Plaintiffs are capable and experienced litigators, are attorneys of good reputation, and have successfully represented plaintiffs in state and federal courts in complex litigation. Plaintiffs' attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the Class.
FACTS ENTITLING CLASS-ACTION PLAINTIFFS TO RELIEF I. DEFENDANTS HAVE FAILED TO PERFORM THEIR DUTY TO PROVIDE
INDIGENT DEFENSE AFTER HAVING DELEGATED THE RESPONSIBILITY TO COUNTIES AND MUNICIPALITIES 55. It is a core guarantee of the Sixth Amendment that every criminal defendant, regardless of economic means, has the right to counsel when facing incarceration. Gideon, 372 U.S. at 340-344 (holding that the right to counsel is "fundamental and essential to a fair trial"). This right is so fundamental that any impairment of the right erodes the principles of liberty and

8883214 _2

15

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 19 of 63

justice that underpin all civil rights in criminal proceedings. The duty to provide criminal indigent defense is placed on the states. Id., at 342.
56. The State of Utah has delegated its Sixth Amendment responsibility to the counties and municipal legislative bodies, UTAH CODE ANN.§ 77-32-306.
A. Failure to Supervise and Oversee Utah's Indigent Defense System 57. After delegating its Sixth Amendment responsibilities, Defendants have done nothing to ensure that the indigent defense system in Utah and the provision of indigent defense by the counties and municipalities is of a quality that meets constitutional standards. 58. As the principals responsible for indigent defense, Defendants have allowed their agents (i.e., the counties and municipalities) to operate without any accountability or governance as to the essential elements of a criminal defense system for indigent persons. Defendants leave each county and municipality to its own devices in providing indigent defense with no obligation to report on those activities to Defendants. 59. Defendants have failed to require their agents to report on the indigent defense the agents provide. As a direct and proximate result, Defendants cannot determine if Utah's indigent defense system meets constitutional standards, particularly with respect to the caseload placed on public defenders. 60. By purposefully failing to require their agents to report or document their activities regarding indigent criminal defense, Defendants have breached their obligation to administer the indigent defense system and uphold the dictates of Gideon and its progeny. 61. Defendants have recently highlighted their total lack of supervision of the Utah indigent defense system by the Utah Legislature's adoption of Senate Bill 155 ("SB 115") which

8883214_2

16

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 20 of 63

was signed by Governor Herbert on March 22, 2016, and which became effective on May 10, 2016.
62. SB 115 creates and describes the duties of the Utah Indigent Defense Commission ("UID Commission"). § 77-32-804, UTAH CODE ANN. Among other things, SB 155 allows, but does not require, the UID Commission to maintain "oversight to collect data, audit attorney performance, establish standards and enforce the principles listed above." § 77-32804(1)(a)(vii), UTAH CODE ANN.
63. SB 115 also instructs the UID Commission to "develop and adopt guiding principles," for indigent defense systems,§ 77-32-804(1)(a)(i) (emphasis added), and to "develop and oversee the establishment of advisory caseload principles"§ 77-32-804(1)(b) (emphasis added.)
64. SB 155 does not require counties and municipalities to follow any "guiding principles" or "advisory caseload principles, " which the UID Commission will set at some point in the future.
65. Rather, counties and municipalities will decide whether to undertake various steps to potentially qualify for grant money from the UID Commission, including passing a resolution adopting UID Commission standards, submitting a certified copy of that resolution, submitting a grant application, and making additional expenditures of their own, unless they can show certain conditions are met. See§§ 77-32-806 & 807.
66. The only consequences a county or municipality faces for not meeting or adopting UID Commission standards is potentially losing grant money, § 77-32-806(2), or potentially being ineligible for grant money, § 77-32-807(5).

8883214_2

17

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 21 of 63
67. As of the date of this Complaint, the UID Commission has not commenced collecting data pertaining to the Utah indigent defense system or fulfilled any of the other statutory directives given to the UID Commission.
68. Upon information and belief, the collection of data and auditing of public defender performance is months or years away from completion. Also upon information and belief, the UID Commission is months or years away from issuing any advisory guidelines about indigent defense provision for counties or municipalities.
69. In the meantime, Plaintiffs and the class members continue to face actual and constructive denials of their constitutional rights by Defendants. The actions of the Utah Legislature are totally inadequate to address the problems.
70. Defendants' present refusal to monitor the indigent defense systems in any county or municipality constitutes a willful disregard of the State of Utah's constitutional obligations. Defendants' delegation of their constitutional duties to counties and municipalities does not relieve them of their constitutional duties.
71. Likewise, the public defenders contracted by the counties and municipalities are not to blame for the systemic problems they and their clients face every day as a result Defendants' complete failure to fund or oversee indigent defense.
72. The fact that Defendants cannot ascertain the status of indigent criminal defense is not a viable defense to the claims brought before this Court. The ultimate responsibility lies with the Defendants, not the counties and municipalities.

8883214_2

18

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 22 of 63

73. Furthermore, Defendant Utah AG has the statutory authority to require the district

and county attorneys to report on the conditions of the indigent criminal defense system, § 67-5-

1(6), UTAH CODE ANN., but has failed to request or obtain such reports.

B. Defendants' Knowledge of Constitutional Deficiencies 74. Although Defendants have attempted to keep themselves ignorant of the operation

of criminal justice in Utah state courts by failing to supervise the state public defender system,

the Defendants have known about the systemic deficiencies for many years.

75. First, it has been a continuing, conscious choice by Defendants to neither fund nor

oversee the system at all. Defendants have known for years that Utah is nearly alone in refusing

to provide any state resources of any kind to assist the counties and municipalities in providing

this constitutionally mandated service.

76. In 2011, the American Civil Liberties Union of Utah published "Failing Gideon -

Utah's Flawed County-by-County Public Defender System" ("Failing Gideon").

77. A second investigative report was published in 2015 by the Study Committee on

the Representation oflndigent Criminal Defendants in Trial Court (the "Study Committee").

The Study Committee was formed in 2011 and is part of the Utah Judicial Council which is the

policy-making body for the judicial branch as authorized by the Utah State Constitution, UTAH

CODE ANN. § 78A-2-104(4). The Utah Judicial Council is responsible for the promulgation of

uniform rules and standards to ensure the proper administration of the courts in Utah, as required

by Article VIII, § 12 of the Utah Constitution.

78. The Study Committee was asked "to assess the provision of indigent criminal

defense services at the trial level in Utah courts and to identify any concerns and make

appropriate recommendations for improvement" (https://www.utcourts.gov/knowcts/admi'.).

8883214_2

19

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 23 of 63

79. The Study Committee engaged the Sixth Amendment Center (a non-profit Massachusetts entity) to perform a study of Utah's indigent defense systems. In October, 2015, the Sixth Amendment Center published its 6AC Report. Simultaneously, the Study Committee published its own report ("Study Committee Report").
80. The Study Committee Report cited three major structural issues affecting indigent criminal defense:
A. The lack of State oversight of the county and municipal indigent defense systems;
B. Contracting "conventions," such as all-inclusive, flat-fee contracts, which create systemic disincentives pitting an attorney's financial interests against the best interest of a client; and
C. Justice courts in which high volume caseloads and lack of uniformity compromise constitutional requirements for adequate defense of indigent defendants.
81. The 6AC Report is subdivided into two categories: (1) actual denial ofcounsel; and (2) constructive denial of counsel.
82. With respect to the actual denial of counsel, the 6AC Report cited, inter alia; (1) failure to appoint counsel at the early critical stages of a criminal prosecution; (2) accepting a waiver of the right to counsel without a colloquy between judge and defendant to ascertain ifthe waiver was knowingly, voluntarily and intelligently made; (3) pleas accepted without counsel; and (4) interference of prosecutors and judges in plea negotiation with respect to persons unrepresented by counsel.

8883214_2

20

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 24 of 63

83. The 6AC Report focused extensively on the constructive denial of counsel to

indigent persons, including: (1) the lack of accountability for indigent defense on the part of

Defendant State of Utah, the counties and municipalities; (2) the structure of indigent defense,

particularly in Justice Courts; (3) the role of county prosecutors in the selection, evaluation and

retention of public defenders; (4) financial conflicts created through flat-fee contracting and

funding of investigative and trial related expenses; and (5) workloads of public defenders,

including time for contesting the prosecution's case.

84. The deficiencies of the Utah indigent defense system have persisted for many

years without any substantive efforts by Defendants to redress those constitutional defects.

C. Standards for Constitutionally Sufficient Defense 85. There is a national consensus and strong legal precedent on what constitutes

constitutionally adequate indigent defense-both at the systemic level and at the level of

individual defense providers.

86. In United States v. Cronic, 466 U.S. 648, 659 (1984), the United States Supreme

Court recognized that the Sixth Amendment is violated when a criminal defendant is

constructively denied counsel.

87. Constructive denial of counsel occurs when, among other things, an indigent

defendant is denied assistance of counsel at a critical stage of the proceedings, when defense

counsel utterly fails to investigate the underlying facts of a case, or when defense counsel fails to

subject the prosecution's case to meaningful adversarial testing, or represents conflicting

interests.

88. The American Bar Association ("ABA") approved the Ten Principles ofa Public

Defense Delivery System (the "Ten Principles"), which establish the fundamental criteria

8883214_2

21

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 25 of 63

necessary-at the systemic level-to provide effective, efficient, and conflict-free legal representation to its clients. The Ten Principles reflect a national consensus regarding the prerequisites for constitutionally adequate indigent defense reached by representatives from each of the fifty states, the civil bar, and all segments of the criminal justice system-including judges, prosecutors, private defense counsel, public defenders, court personnel, and academics active in criminal justice.
89. The Ten Principles state that to have constitutionally adequate indigent defense: (a) defense counsel should be an equal partner in the justice system, with the same resources as prosecuting attorneys; (b) only qualified counsel should represent indigent defendants; (c) clients should be appropriately screened for eligibility for public defense services; (d) defense counsel should receive the training necessary to perform competently; (e) there should be attorney performance standards and adequate supervision and oversight to ensure compliance with those standards; (f) workloads should be monitored; and (g) indigent defense systems should be independent from undue political influence, to ensure that counsel are free to make decisions necessary to meaningfully advocate for their clients.
90. The ABA and the National Legal Aid and Defender Association ("NLADA") have also promulgated performance standards for constitutionally adequate indigent defense counsel with respect to individual providers. Those standards dictate that indigent defense counsel: (a) have adequate knowledge of the relevant areas oflaw; (b) act with reasonable diligence and promptness, avoiding unnecessary delay in the disposition of cases; (c) provide representation at every critical stage of their client's proceedings; (d) conduct reasonable factual and legal pre-trial investigations into the charges against their clients, pursue available formal

8883214_2

22

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 26 of 63

and informal discovery procedures and use appropriate and necessary experts; and (e) consult with their clients in order to elicit relevant information about the case, to inform clients of their rights, and to enable clients to make informed decisions about the direction of their cases.
91. Attached as Appendix 1 to the Study Committee Report is a white paper authored by Hon. Derek P. Pullan of the Fourth Judicial District Court entitled "THE CONSTITUTIONAL RIGHT TO COUNSEL - EVALUATING THE HEALTH OF UTAH' S INDIGENT DEFENSE SYSTEM" ("Pullan Report"). Judge Pullan articulated seven factors to be used in assessing the health of Utah's public defense system:
A. Independent representation, which includes the exclusion of county attorneys and judges from hiring and supervising public defenders;
B. Representation without conflicts of interest, which encompasses systemic conflicts of interest arising from the contract terms of engagement, the manner of selection, funding and payment of defense counsel;
C. Representation without interference, such as not providing a private place for attorney-client confidential communications;
D. Representation at all critical stages, which includes custodial interrogations, lineups, initial appearances, bail hearings, preliminary examination, arraignment, plea bargaining, sentencing and the first appeal of right;
E. Representation that ensures meaningful adversarial testing of the State's evidence, which includes qualified counsel (ability, training and experience), access to defense resources (e.g., investigators, expert witnesses and scientific or medical testing) and reasonable caseload standards;

8883214_2

23

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 27 of 63

F. Fair compensation and proper incentives; and G. Case specific and systemic quality control, including minimum performance standards and collection of meaningful data. 92. The State of Utah passed the Indigent Defense Act of 1965 (the "Act"). The Act has been amended and is currently set forth in§§ 77-32-101 et seq., UTAH CODE ANN. The legal defense standards for Utah's public defender are defined in § 77-32-201(8), UTAH CODE ANN.: A. Provide defense counsel for each indigent who faces the potential deprivation of the indigent's liberty; B. Afford timely representation by defense counsel; C. Provide the defense resources necessary for a complete defense; D. Assure undivided loyalty of defense counsel to the client; E. Provide a first appeal of right; and F. Prosecute other remedies before or after a conviction, considered by defense counsel to be in the interest ofjustice except for other and subsequent discretionary appeals or discretionary writ proceedings. 93. Defendants have failed to meet or maintain the statutory mandates of the Act as further described below. Furthermore, Defendants have failed to fulfill the constitutional standards articulated in the Ten Principles, by the NLADA and in the Pullan Report. 94. Among other things, Defendants have allowed a system to develop in which counties and municipalities are not providing timely and competent legal counsel, are denying public defenders investigatory resources necessary for a complete defense, and creating

8883214_2

24

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 28 of 63

conditions making it practically impossible for public counsel to provide undivided loyalty to their clients.
95. The substandard performance of the indigent criminal defense system is on-going and continuous, thereby damaging the constitutional rights of Plaintiffs, and those similarly situated. II. THE CONSTITUTIONAL DEFICIENCIES OF THE UTAH INDIGENT
DEFENSE SYSTEM ARE OPEN AND NOTORIOUS A. Defendants Exercise No Administrative Oversight Over the Indigent Defense
System. 96. Defendants are not taking any steps to ensure that their agents are living up to the minimum constitutional and statutory requirements of indigent defense. 97. Notwithstanding the generalized responsibilities Defendant Utah AG has over Defendant's provision of indigent defense, Utah presently has no statewide entity or official with the unambiguous mandate to ensure Defendants' compliance with their constitutional obligations on an ongoing basis. 98. Utah has no official or entity empowered to take any binding, remedial actions to fix the counties' and municipalities' failure to comply. 99. Defendants do not supervise the provision of indigent defense services in misdemeanor and felony criminal actions in any of Utah's twenty-nine counties. 100. Defendants have not implemented any safeguards to ensure that counties comply with the Act and with national performance standards. 101. National standards require ongoing training, professional development, and continuing legal education. Indigent defense counsel must acquire and maintain lawyering skills,

8883214_2

25

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 29 of 63

as well as keep current with new developments in the complex and rapidly changing field of criminal law.
102. Defendants do not provide resources for attorney training, nor require attorney performance evaluations. Defendants do not oversee workload limits. As a result, only two of Utah's twenty-nine counties (i.e., Salt Lake and Utah counties) have implemented a formal training program for indigent defense counsel at the insistence and direction of the legal defender associations in those two counties.
103. Most counties rely on private low-bid contracts without any investigation into the qualifications of the applicants. Lacking formal orientation, newly hired attorneys have no opportunity to acquire and maintain the skills and legal knowledge necessary to put the prosecution's case to the crucible of adversarial testing. Counties do not provide or fund training programs for contracted attorneys to hone their skills and remain knowledgeable of significant changes in the law.
104. The very recently formed UIC Commission, by its nature, has no power at all to take any binding action to bring any county or municipality failing to provide adequate defense into compliance. The UIC Commission is advisory in nature, and counties and municipalities have no obligation to follow any of its guidelines.
105. By contrast, Defendants, through the Utah Prosecution Council ("UPC") provide numerous opportunities for ongoing education and training for county prosecutors. Counties often pay for prosecutors' training and memberships in statewide associations for prosecutors and other professional associations.

8883214_2

26

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 30 of 63
106. National standards further mandate that indigent defense programs subject their attorneys to systematic supervision and evaluation based on publicized practice standards. Utah has no statewide supervision or evaluation policies. Defendants keep no records, documents, files, or written protocol of any kind to monitor the indigent defense system. Defendants have no system in place to ensure that counties set practice standards or methods of evaluation, supervision, and monitoring to ensure the adequate assistance of indigent defense counsel.
107. The lack of basic supervision results in inevitably hampering the quality of representation across the state. While every county and municipality suffers from its own systemic issues, there are some counties and municipalities where there are more and more acute problems.
108. The lack of supervision also results in counties attempting to save money by relying on overworked, underpaid, inexperienced, untrained, understaffed and often conflicted counsel.
109. Most Utah counties award indigent defense contracts based on the lowest cost possible, without regard to constitutional adequacy. Under such contracts, defenders are left to police their own caseloads and report when they become too burdensome. The potential for recriminations and reprisals (e.g., terminating or not renewing a public defender contract) if public defenders complain about excessive caseloads militates against public defenders making any objection to caseloads and lack of resources.

8883214_2

27

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 31 of 63

B. Defendants Do Not Consistently Provide Legal Counsel to Indigent Defendants at All Critical Stages of the Criminal Prosecution.
110. The constructive denial of legal counsel to indigent defendants commences at the hiring of public defenders. From stem to stern, the hiring and supervision of public defenders is defective ab initio.
111. With limited exceptions, Utah counties have coalesced around two models. In Salt Lake and Utah counties, the county commissioners have engaged by contract a single, notfor-profit provider of legal defense to indigents.
112. Outside of those two counties, and in every municipality, the counties and municipalities contract with private attorneys to provide services in either the District and Justice courts, or both.
113. The counties' and municipalities' selection of private attorneys for indigent defense contracts is fraught with inherent defects. The governmental bodies awarding contracts to the public defenders consist of elected officials who are usually not law trained. They do not have backgrounds in legal matters and are not acquainted with the skills and experience level the public defenders should have.
114. Moreover, because the cost of the indigent defense system is borne by each of the separate counties and municipalities' and their general tax funds, the officials are motivated to keep the costs as low as possible without regard to the constitutional sufficiency of the defense system.
115. Because of this lack of law training, the officials often tum to the county or city attorneys for advice and guidance in selecting the private attorneys to be hired for indigent

8883214_2

28

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 32 of 63

defense. In effect, the prosecutors are involved in hiring their opposing counsel, which constitutes a self-evident conflict of interest.
116. The contracts used by nearly all counties and municipalities are annual, flat-fee arrangements. Under such contracts, the private attorney and the county or municipality negotiate a set price for all services on a yearly basis. Such contracts make no accommodation for an increase in the number of cases assigned to the public defender or the complexity of any particular case.
117. In most counties, there is no prohibition against public defenders having private clients while fulfilling the flat-fee annual contract with the county. In those instances, the public defender is conflicted by the duty to the private clients (who usually will pay more money on an hourly or project basis than the public defender contract) and the contractual duty to represent indigent defendants.
118. Under the flat-fee annual contract, the public defender will not be paid any more or less for the number or complexity of cases; whereas his/her annual income can be increased by dedicating more time and energy into private practice.
119. Because of the structure of the contractual commitment, the average public defender is economically motivated to do as little as possible regarding the indigent defendants and to increase his/her productivity with respect to private clients. From the inception of the contract, the contracts create a conflict, which compromises the defense of people unable to pay for an attorney.
120. By way of illustration, not limitation, attached hereto as Exhibit 1 is a copy of the Request for Qualification for Kane County Public Defender Services ("Kane County RFQ") to

8883214_2

29

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 33 of 63
which was attached the Public Defender Agreement-Trial Services-March 1, 2016 - February 28, 2018 ("Kane County PD Contract"). Responses to the Kane County RFQ were due on March 2, 2016. The Kane County PD Contract embodies the same systemic problems that plague all flat-rate annual contracts. The annual flat-rate is $60,844.10. See Scope of Work in Kane County RFQ and~ 5.1 of the Kane County PD Contract.
121. Before the Kane County public defender may use an expert witness, the trial court must approve the expert witness fees-a requirement that the county prosecutors do not have to comply with. This places a burden on the public defenders, particularly when the motion to approve the payment of expert witnesses fees will require the disclosure of discovery and trial strategy- something that prosecutors don't have to do. Furthermore, the public defender must "use his best efforts to minimize the cost and expenses." Kane County PD Contract at~ 3.9. Extraordinary unforeseen expenses may be requested from the non-lawyer county commissioners. Kane County PD Contract at~ 5.3. Private practice is not prohibited. Kane County PD Contract at~ 7.9.
122. The Kane County PD Contract demonstrates that various Utah counties continue to use contracts with built-in conflicts.
123. Beginning in October 2015, legal counsel for Plaintiffs issued a series of document requests to all Utah county commissions and District Courts under the auspices of the Government Records Access and Management Act,§§ 630-2-101, et seq., UTAH CODE ANN. ("GRAMA").

8883214_2

30

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 34 of 63

124. All county Commissions were asked to produce copies ofrecords pertaining to the indigent defense system in each county, including copies of any public defender contracts and minutes of any county commission meetings pertaining to indigent defense.
125. Like the Kane County PD Contract, county commissions have used the flat-rate annual contract format to provide indigent legal services. In addition to the intrinsic flaws contained in the Kane County PD Contract, other flat-rate contracts require that the public defender pay for expert witness fees, testing and investigative research out of their own pocket, with no additional monies from the county.
126. Stunningly, certain counties require public defenders to pay for substitute counsel in the event the public defender is conflicted out of representation, which dampers the willingness of public defenders to acknowledge conflicts.
127. County commission minutes and related documents produced in response to the GRAMA requests do not show any public defenders having requested or being granted additional monies for extraordinary expenses by the county commissioners.
128. In the cases where the public defender must pay for expert witness fees, testing and investigations, there are no produced documents showing expenditures in excess of the yearly flat-rate.
129. Defendants have provided no directives, oversight or supervision with respect to the types of contracts utilized by Utah counties with public defenders. Defendants have allowed such contracts to continue and to proliferate. Defendants have no means of requiring that public defender contracts or other arrangements conform with the Utah Constitution, statutes and case law, including the recently enacted UID Commission.

8883214_2

31

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 35 of 63

130. Failure to govern the indigent defense systems of the Utah counties, particularly the way in which public defenders are chosen and compensated, constitutes a breach of Defendants' constitutional responsibilities to indigent criminal defendants and a violation of the federal and state constitutions, statutes and attendant case law. Plaintiffs suffer harm as public defenders routinely represent conflicting interests.
131. Over and beyond the actual contracts, Defendants have failed to regulate and supervise the selection of public defenders. Defendants provide no mechanism to ensure indigent defense providers are qualified for the job. Most contracts have no written job qualifications other than a prerequisite in the contract that counsel be members of the Utah State Bar Association in good standing.
132. Given the lack of hiring criteria, there is no way of telling whether indigent defense counsel have the requisite ability, training, experience and adequate knowledge of relevant areas of the law to match the complexity of their caseloads.
133. Most counties rely on private low-bid contracts without any investigation into the qualifications of the applicants. Lacking formal orientation, newly hired attorneys often have no opportunity to acquire and maintain the skills and legal knowledge necessary to put the prosecution's case to the meaningful crucible of adversarial testing.
134. The collateral effects of a guilty plea or conviction are complex and intricate in today's interconnected legal system. For example, a guilty plea or verdict may have adverse consequences on the indigent defendant's eligibility for public housing, and if a landlord conducts a background check, private housing. 42 U.S.C. § 1366l(c) gives public housing authorities the power to deny people Section 8 (42 U.S.C. § 1437(±)) rental housing assistance

8883214_2

32

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 36 of 63

based on criminal activity. Criminal convictions also have effects on immigration status, student loan eligibility, and many other issues.
135. Effective criminal representation means being able to advise clients about these collateral effects. In other states, there is a state requirement for public defenders to be aware of such consequences. For example, in New Mexico, public defenders are expected to know what the consequences of a guilty plea might be on the immigration status of an indigent defendant.
136. On the other hand, Utah has no such requirement for its public defenders. In Utah, for example, there is no means of determining ifthe public defenders are knowledgeable about the intersection of criminal and immigration law. See 8 U.S.C. § 1227(a)(2) (crimes of "moral turpitude" or involving controlled substances shall serve as a basis for deportation of aliens) and the Criminal Alien Program (CAP) which provides the US. Immigration and Customs Enforcement (ICE) agency support in the biometric and biographic identification, arrest, and removal of priority aliens who are incarcerated with federal, state and local prisons and jails.
137. As the parties ultimately responsible for the indigent defense systems, Defendants have abnegated their responsibilities by not instituting standards by which public defenders are hired and perform on the job.
138. With the exception of Salt Lake County and Utah County, which cover training expenses, counties do not pay for any training and continuing legal education for public defenders and Defendants do not provide any funding to cover such costs. Indigent defense counsel must pay for all training and continuing legal education ("CLE") out of pocket. Defendants take no steps to ensure indigent defense counsel actually receive applicable training and ongoing legal education.

8883214_2

33

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 37 of 63

139. By contrast, several counties directly fund training for prosecutors, and pay for memberships in professional associations such as the UPC and the Statewide Association of Prosecutors, which provide training and continuing legal education.
140. Defendants contribute nothing to CLE for the attorneys representing indigent defendants. Although the Utah State Bar requires continuing legal education of all licensed attorneys, public defenders can satisfy these requirements by pursuing instruction in unrelated practice areas. There is no requirement that public defenders keep abreast of developments in criminal Jaw or report their CLE to an authority charged with overseeing performance.
C. Caseloads and Availability of Public Defenders 141. Defendants do not monitor, limit or otherwise provide supervision and oversight of public defense counsel workloads. Defendant' s failure to provide supervision and guidance has resulted in unmanageably large workloads for indigent defense counsel. 142. Workload affects the productivity and effectiveness of indigent defense counsel more than any other variable. The National Advisory Commission on Criminal Justice Standards and Goals created by the United States Department of Justice stated in 1973 that a single, fulltime indigent defense counsel can reasonably be expected to handle no more than 150 felonies per year; or 400 misdemeanors per year; or 200 juvenile delinquency cases per year. The national standards published in 1973 may now be too high in light of the complexity of criminal defense and the need for scientific testing (e.g., DNA) and detailed investigations, which did not exist in 1973 but which are standard procedures in 2016. 143. As alleged above, Defendants do not collect meaningful data regarding the indigent defense system and the caseloads placed on public defenders. Defendants cannot

8883214_2

34

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 38 of 63

determine the effectiveness of indigent defense counsel if Defendants do not know who handles public defense cases from one county and municipality to the next.
144. Quite simply, Defendants do not know who the public defenders are, much less what the caseload is for a particular public defender. This is particularly true because defenders sometimes hold contracts for various types of services within one county or city and/or with various counties and cities and/or have private clients in addition to their contract or contracts.
145. Defendants have not set workload limits and do not require the counties to do so. A review of the sparse data available reveals that in many counties, indigent defense counsel maintain felony caseloads as high as 250 to 300 cases, almost twice the ABA recommended maximum of 150, not counting any juvenile representation they may undertake.
146. Many attorneys carry private caseloads in addition to the cases assigned by the county in order to supplement their income. Caseloads for indigent defense are often so high that attorneys spend no more than a few minutes with a client prior to court proceedings.
147. Because of the excessive caseloads, public defenders are forced into the "meet and plead" syndrome where they meet their indigent client a few minutes before entry of a plea agreement. The excessive caseloads impede counsel's ability to provide constitutionally and statutorily adequate legal representation. In some isolated rural counties, caseloads may not be as pressing an issue as the other consequences of a defective indigent defense system.
D. Funding and Resources for Indigent Defense 148. Each county and municipality is responsible for funding its own indigent defense services. Defendants do not provide any funding whatsoever for indigent defense.

8883214_2

35

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 39 of 63

149. Utah ranks 48th out of the 50 states in per capita spending for indigent defendants, spending $5.22 (the national average is $11.86), with some counties spending as little as $1.87 per person per year.
150. In contrast to the paltry sums spent on indigent defense, Defendants provide county prosecutors with myriad resources, which increases the disparity between prosecutors and defenders and decreases the defenders' ability to subject the prosecutor's case to the crucible of adversarial testing. For example, the state-funded UPC, which focuses on providing legal training to prosecutors, has a substantial annual budget. The Utah Prosecutorial Assistants Association, which received $12,000 from the UPC, provides prosecutorial assistants with legal training. Additionally, the Statewide Association of Prosecutors, funded by dues paid by counties, advances legislation to benefit prosecutors. Finally, because prosecutors are county employees, they receive state benefits, including health insurance and retirement plans, for both them and their staff.
151. By contrast, public defenders must hire staff, pay for overhead, and cover the costs of benefits on their own.
152. Public defense contracts awarded in most counties do not provide additional funds to hire private investigators or experts. Rather, public defenders must cover the cost of such investigations out of their own funds or make a special request for additional funding from the county or municipality. The practical reality is that public defenders rarely hire investigators.
153. In contrast, prosecutors have immediate access to the State of Utah Crime Laboratory and the various services it offers, including scientific consulting, law enforcement

8883214_2

36

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 40 of 63

training, crime scene response, laboratory testing services, 1 and courtroom testimony. The Bureau of Forensic Services is located within the Utah Department of Public Safety. None of those services, however, are freely available to public defenders and their clients.
154. In many counties, indigent defense attorneys must appeal to county officials (who are usually not law trained) to have investigators, experts, and other expenses approved and paid. In cases where the county commissioners must approve extraordinary expenses requested by the public defender before such expenditures can be made, the county commissioners' lack of criminal law expertise prevents them from understanding the necessity of such expenses. For example, a county commissioner without legal training cannot be expected to know when DNA testing is an absolute necessity for the adequate defense of a particular indigent defendant.
155. Requiring public defenders to justify such expenses to non-lawyers is another deterrent to adequate, constitutional defense. As a result, public defenders lack real independence from prosecutorial and judicial influence, which is critical to our adversarial system.
156. The lack of funding and oversight on the part of Defendants has also resulted in counties and municipalities failing to provide private spaces in the courthouses for public defenders to meet with their clients.
157. There are very few court facilities that have dedicated spaces in which public defenders can have confidential conversations with their attorneys. Most indigent defendants first meet and then converse with their assigned public defender in the courtroom or the hallways

1 Laboratory testing services offered to prosecutors consist of biology screening, DNA, combined DNA index system input/management, controlled substances (including suspected clandestine labs), fire debris, paint, general trace and unknown substances, latent prints, footwear/tire track, automated fingerprint identification system, bloodstain pattern analysis, firearms, toolmarks, serial number restoration, distance determination and shooting scene reconstruction. See forensicservices.utah .gov.

8883214_2

37

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 41 of 63
outside the courtrooms. There is no physical barrier or door protecting the attorney-client privileged discussions from other people in attendance.
158. For in-custody indigent defendants, conversations with the assigned public defenders often take place in group holding cells where the defendants are not assured that their statements to counsel will not be overhead by other prisoners and jail personnel.
159. As a result, the confidence and trust of the indigent defendants in their public defenders are severely eroded by lack of physical space.
160. In Utah, indigent defendants may be ordered to repay the county "costs" if convicted of a crime, § 77-32a-1, UTAH CODE ANN. Costs are defined by statute to include "attorney fees of counsel assigned to represent the defendant." § 77-32-2, UTAH CODE ANN.
161. In contrast to the Miranda advisory that an attorney will be appointed if the accused cannot afford an attorney, indigent defendants are not regularly advised that a guilty plea may entail more than just a fine.
162. If recoupment is ordered and the defendant does not pay the attorney fees, the county or municipal court may move for an order to show cause why the indigent defendant's default should not be treated as contempt of court and may "order him committed until the costs or a specified part thereof, are paid." UTAH CODE ANN. § 77-32a-8.
163. As a result, indigent defendants are denied public defender services because they must ultimately pay for these services if they are convicted. Recoupment of fees has a chilling effect on the right to counsel.

8883214_2

38

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 42 of 63

164. Counties usually charge indigent defendants a flat fee for the public defense services they receive, without regard to the length or complexity of their cases, the quality of the defense services, or their ability to pay without substantial hardship.
165. Typically, indigent defendants are charged $500 for a felony conviction and $250 for a misdemeanor conviction. These flat fees apply even if the public defender in question did not incur that amount in costs or attorney time.
166. County and municipal courts make no attempt to ascertain whether indigent clients can pay the recoupment fees without substantial hardship and routinely assess the fees despite the fact that these indigent clients have already filled out forms with their financial information to indicate they qualify for free assistance of counsel.
167. Many of the counties' contracts with public defenders require the attorney to provide information to the county prosecutors as to their clients' ability to pay the recoupment costs. This requirement is contrary to the UTAH RULES OF PROFESSIONAL CONDUCT which demand that the attorney's allegiance be only to the client.
E. Disparity in Compensation 168. The comparison of annual contract fees paid to public defenders with the salaries of prosecutors reveals a great disparity between the compensation paid to public defenders that paid to prosecutors. 169. A side-by-side comparison underreports the true disparity because counties also pay for the prosecution team's retirement, health and dental insurance, office expenses and supplies, training and travel, service fees, fleet vehicles, severance benefits, worker's compensation insurance, phone charges, equipment and computer maintenance, risk management

8883214_2

39

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 43 of 63

and malpractice insurance, legal subscriptions, professional association dues, disability

insurance, car allowances and cell phones.

170. Contract defenders receive no such support or benefits from Defendants. As a

result, many public defenders are forced to supplement their incomes through private practices

and/or additional indigent defense contracts in surrounding counties.

F. Availability of Public Defenders and Quality of Representation 171. The lack ofresources, excessive caseloads, and latent conflicts contained in the

county public defender contracts are some of the root causes of public defenders' inability to

provide adequate time for their clients.

172. As a result of crushing workloads, public defenders do not have sufficient time to

meet and confer with their clients throughout the critical stages of the criminal proceedings.

173. When assigning a public defender, judges or court personnel routinely inform

public defenders of the name and contact information for the attorney, sometimes with the

admonition that contacting the public defender will be difficult. In most instances, the public

defender does not meet or converse with the defendant until a court hearing.

174. Without adequate client contact, defense counsel cannot and do not adequately

argue against pretrial incarceration or the imposition of bail.

175. There is no time to ascertain what contacts the defendant has with the community,

job status, or family commitment, and therefore the public defender does not have the necessary

information to seek no bail, reduced bail, or prevent pre-trial incarceration.

176. Because their counsel fail to advocate effectively against detention or the

imposition of bail, people are routinely detained unnecessarily or for prolonged periods of time

before trial.

8883214_2

40

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 44 of 63

177. Unless Defendants take affirmative steps to ensure that public defenders have manageable caseloads, indigent defendants will continue to have limited or no contact with their legal counsel at critical stages of the proceedings.
178. Also as a result of overly burdensome caseloads created and sustained by Defendants' actions, many public defenders do not conduct appropriate discovery or make appropriate pre-trial motions. Likewise, many public defenders rarely make discovery motions or challenge the sufficiency of the documents they are permitted to review. Motions to suppress evidence in Utah Justice Courts are virtually unheard of.
179. Because of the Defendants' failure to assemble pertinent data on the indigent defense system in Utah, it is impracticable to determine on a county-wide basis the number of discovery motions, motion to suppress, and actual trials conducted by public defenders. Sampling of dockets in various counties reveals very few instances where there is a record of public defenders contesting the merits of the prosecution's case.
180. Many members of the Plaintiff class have been detained unnecessarily or for prolonged periods of time before trial. Many public defenders rarely seek reductions in bail, even for clients who pose no flight risk. Many times indigent defense counsel fails to appear at court proceedings, resulting in frequent rescheduling and postponements.
181. Many class members are compelled to take inappropriate pleas, often to the highest charge, even when they have meritorious defenses.
182. Many public defenders routinely encourage their clients to plead guilty without a proper factual basis for guilt, without even a cursory investigation into potentially meritorious

8883214_2

41

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 45 of 63

defenses, in the absence of any physical evidence, and without the presence of a complaining witness.
183. Fearful that their attorneys will not adequately prepare for trial, Plaintiffs forgo their right to trial, pleading guilty to crimes they did not commit or to charges more severe than the facts of their cases warrant.
184. Many public defenders in Utah routinely fail to review presentence reports with clients prior to the day of sentencing. Likewise, many public defenders do not conduct independent mitigation investigations or pre-sentence reports for their clients, leaving the state's report as the primary document relied upon by the court in sentencing.
185. These failures are to be expected because public defenders have so little time and resources (e.g., no investigators) to marshal an adequate defense.
186. The hallmarks of a vigorous defense on behalf of indigent criminal defendants are missing, which leads to the conclusion that the Utah system of indigent defense has failed to put the prosecution to the "crucible of meaningful adversarial testing." The net effect of inadequate resources, lack of oversight and excessive caseloads is that indigent defense counsel more routinely expend their energy pressuring defendants to accept the prosecution's plea offers.
187. Plaintiffs and members of the plaintiff class have suffered irreparable harm or are at imminent risk of suffering such harm because Defendants have failed to supervise and monitor the indigent defense system for which they are responsible. There is no adequate remedy at law to address these deficiencies or the consequential deprivation of adequate counsel.
188. As a direct result of the Defendants' lack of supervision and oversight, individual counties and municipalities in the State of Utah have failed to supervise, monitor and adequately

8883214_ 2

42

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 46 of 63

fund the indigent criminal defense system within the individual counties and municipalities. Because of the Jack of oversight and accountability on the part of Defendants and the counties, public defenders are not selected and engaged in a consistent manner with the best interests of the indigent defendants in mind (e.g., flat-fee annual contracts), are not adequately trained during the course of their engagement, are not given performance evaluations, are overworked, understaffed, and without sufficient time to investigate the charges, are unable to provide legal representation at all critical stages of the proceedings, unable to contest pre-trial bail hearings, cannot provide independent legal advice with respect to plea arrangements, unable to contest the charges leveled against their client, are prevented from trying cases with adequate investigation and discovery, Jack sufficient time to provide legal counsel necessary to evaluate criminal charges and plea arrangements, cannot provide indigent defendants with alternative sentencing options, and otherwise prevented from fulfilling the constitutional defense of indigent defendants.
189. As a direct result of the unconstitutional indigent criminal defense system which Defendants have allowed to persist in the State of Utah, Plaintiffs and class members are harmed in a multitude of ways every day, including: spending more time in pre-trial detention; being subject to excessive bail; accepting plea agreements about which they are ill-informed and have no understanding of collateral effects (e.g., immigration); agreeing to plea agreements that are excessively punitive (increased fines and recoupment of attorney fees) and entail longer sentences; being unaware of sentencing alternatives; and generally being denied the constitutionally mandated procedures that ensure a fair and just defense to criminal charges. The

8883214_2

43

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 47 of 63

deprivation of constitutional rights and the resulting harm visited upon Plaintiffs and class

members continue unabated as of the date of this Complaint.

FIRST CAUSE OF ACTION
SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND 42 U.S.C. § 1983 (Right to Counsel)

190. Plaintiffs re-allege and incorporate by reference all allegations from previous

paragraphs of this Complaint.

191. Defendants are obliged to provide resources to indigent defense counsel, so that

they may offer constitutionally adequate defense services to Plaintiff Class members.

192. Defendants fail to provide sufficient supervisions and oversight to ensure

constitutionally adequate counsel for Plaintiffs and class members. Instead, Defendants rely on

individual counties to provide indigent defense services.

193. Defendants fail to provide adequate oversight to ensure constitutionally adequate

defense services for indigent defendants charged of crimes in their jurisdiction.

194. As a result of Defendants' failure to provide counties with adequate guidelines

and resources to guarantee adequate defense, Utah's indigent defense system is underfunded,

poorly and unevenly administered, and does not provide mandated constitutional protections to

many indigent defendants.

195. As a result of Utah's deficient indigent defense system, indigent defense counsel

in most counties are unable to provide constitutionally-adequate legal representation, and

Plaintiffs are harmed.

196. Defendants' failure to exercise the oversight needed for constitutionally adequate

indigent defense during criminal proceedings violates Plaintiffs' rights under the Sixth and

8883214_2

44

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 48 of 63

Fourteenth Amendments to the United States Constitution, including, but not limited to, their

right to effective assistance of counsel. This constitutional violation provides Plaintiffs with the

right to obtain declaratory relief and attorney's fees, pursuant to 42 U.S.C. § 1983.

SECOND CAUSE OF ACTION
FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND 42 U.S.C. § 1983 (Due Process)

197. Plaintiffs re-allege and incorporate by reference all allegations from previous

paragraphs of this Complaint.

198. Defendants are obliged to provide tools to indigent defense counsel so they may

offer constitutionally adequate defense services to Plaintiffs and class members.

199. Defendants fail to provide adequate oversight to ensure constitutionally sufficient

counsel for Plaintiffs and class members. Instead, Defendants rely on individual counties to

provide indigent defense services.

200. Due to the lack of oversight and supervision on the part of Defendants, Utah

counties fail to provide adequate funding and oversight to ensure constitutionally adequate

defense services for indigent defendants charged with crimes in their jurisdiction.

201. As a result of Defendants' failure to provide the counties with adequate guidelines

and resources to guarantee adequate defense, Utah's indigent defense system is underfunded,

poorly and unevenly administered, and does not provide mandated constitutional protections to

many indigent defendants.

202. As a result of Defendant's deficient indigent defense system, indigent defense

counsel in most counties are unable to provide constitutionally adequate legal representation, and

Plaintiffs are harmed.

8883214_2

45

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 49 of 63

203. Defendants' failure to exercise the oversight needed for constitutionally adequate indigent defense during criminal proceedings violates Plaintiffs' rights under the Fourteenth Amendment to the United States Constitution, including, but not limited to, their right to due process. This constitutional violation provides Plaintiffs with the right to obtain declaratory relief and attorney's fees, pursuant to 42 U.S.C. § 1983.
THIRD CAUSE OF ACTION ART I, § 12 OF THE UTAH CONSTITUTION
(Right to Counsel) 204. Plaintiffs re-allege and incorporate by reference all allegations from previous paragraphs of this Complaint. 205. Defendants are obliged to provide resources to indigent defense counsel so they may offer constitutionally adequate defense services to Plaintiffs and class members. 206. Defendants fail to provide adequate oversight to ensure constitutionally sufficient counsel for Plaintiffs and class members. Instead, Defendants rely on individual counties to provide indigent defense services for indigent defendants charged of crimes in their jurisdiction. 207. Defendants fail to provide oversight to ensure constitutionally adequate defense services. As a result of Defendant's failure to provide Utah counties with adequate guidelines and resources to guarantee adequate defense, Utah's indigent defense system is underfunded, poorly and unevenly administered, and does not provide mandated constitutional protections to many indigent defendants. 208. Defendants' failure to provide Plaintiffs and class members with adequate legal representation violates Plaintiffs' and class members' rights under Utah Const. Art. I, § 12, including, but not limited to, their rights to effective assistance of counsel. This constitutional

8883214_2

46

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 50 of 63

violation provides Plaintiffs with the right to obtain declaratory relief and attorney's fees, pursuant to 42 U.S.C. § 1983.
FOURTH CAUSE OF ACTION ART 1 § 7 OF THE UTAH CONSTITUTION
(Due Process) 209. Plaintiffs re-allege and incorporate by reference all allegations from previous paragraphs of this Complaint. 210. The State of Utah is obliged to provide resources to indigent defense counsel so they may offer constitutionally adequate defense services to Plaintiffs and class members. 211. Defendants fail to provide adequate oversight to ensure constitutionally adequate counsel for Plaintiffs and class members. Instead, Defendants rely on individual counties to provide indigent defense services. 212. Due to the lack of supervision and oversight on the part of Defendants, Utah counties fail to provide adequate funding and oversight to ensure constitutionally adequate defense services for indigent defendants charged of crimes in their jurisdiction. 213. As a result of Defendants' failure to provide the counties with adequate guidelines and resources to guarantee adequate defense, Utah's indigent defense system is underfunded, poorly and unevenly administered, and does not provide mandated constitutional protections to many indigent defendants. 214. As a result of Utah's deficient indigent defense system, indigent defense counsel in most counties are unable to provide constitutionally adequate legal representation, and Plaintiffs are harmed.

8883214_2

47

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 51 of 63

215. Defendants' failure to provide Plaintiffs and class members with adequate legal representation violates Plaintiffs' and class members' rights under Utah Const. Art. I, § 7, including, but not limited to, their rights to due process. This constitutional violation provides Plaintiffs with the right to obtain declaratory and injunctive relief and attorney's fees, pursuant to
42 u.s.c. § 1983.
FIFTH CAUSE OF ACTION SECTION 77-32-301 UTAH CODE ANN. (Minimum Standards oflndigent Defense) 216. Plaintiffs re-allege and incorporate by reference all allegations from previous paragraphs of this Complaint. 217. The Utah Indigent Defense Act,§ 77-32-301 UTAH CODE ANN., provides minimum standards for the defense of indigent defendants. The Act requires counties and municipalities to provide competent and timely legal counsel. This includes, among other things: the investigatory resources adequate for a good defense,2 undivided loyalty of the defense counsel to the client,3 and continuous representation by the appointed attorney throughout all stages of the prosecution.4 218. Defendants fail to provide adequate funding and oversight to ensure all indigent defendants timely receive competent counsel. 219. Defendants fail to provide adequate investigative resources for indigent defendants.

2 Utah Code Ann.§ 77 32 301 (3) 3 Utah Code Ann.§ 77 32 301 (4) 4 Utah Code Ann.§ 77 32 304 (l)(a)

8883214_2

48

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 52 of 63

220. Defendants fail to provide undivided loyalty to their indigent clients by failing to recognize and address conflicts of interest.
221. Utah counties fail to provide uniform representation at all stages of the proceeding. Indigent defendants are often represented by more than one attorney, and are often left unrepresented during crucial stages of their prosecution.
222. Defendants' failure to provide Plaintiffs and class members with adequate legal representation violates Plaintiff's and class members' rights under§ 77-32-301, UTAH CODE ANN including, but not limited to, their rights to effective assistance of counsel.
223. Under Utah law, a private cause of action may exist for violations of a state law; therefore, Plaintiffs and class members are entitled to declaratory relief.
RELIEF REQUESTED WHEREFORE, Plaintiffs and class members respectfully request that this Court: 1. Assert jurisdiction over this action; 2. Order that Plaintiffs may maintain this action as a class action pursuant to Rule 23 of the Utah Rules of Civil Procedure; 3. Declare unconstitutional and unlawful:
(a) Defendants' violation of Plaintiffs' rights, including their right to effective assistance of counsel, under the Sixth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983;
(b) Defendants' violation of Plaintiffs' and class members' rights, including their right to due process guaranteed by the Fourteenth Amendment to the United States Constitution, and under 42 U.S.C. § 1983;

8883214_2

49

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 53 of 63

(c) Defendants' violation of Plaintiffs' rights, including their right to effective assistance of counsel, under Article I, § 12 of the Utah Constitution;
(d) Defendants' violation of Plaintiffs' rights, including their right to due process, under Article I, § 7 of the Utah Constitution;
(e) Defendants' violation of Plaintiffs' and class members' rights under§ 7732-301, UTAH CODE ANN. and the objectives of the Utah Indigent Defense Act; and
(f) Enjoin Defendants from their ongoing violations. 4. To the extent necessary, grant supplemental relief pursuant to § 78B-6-406 UTAH CODE ANN. and such other remedies as provided in§§ 78B-6-401, et seq. UTAH CODE ANN.; 5. Award to Plaintiffs and class members the reasonable costs and expenses incurred in the prosecution of this action, including attorneys' fees and costs pursuant to 42 U.S.C. § 1983; and 6. Grant such other declaratory and equitable relief as the Court deems appropriate to protect Plaintiffs from further harm by Defendants. DATED this 21st day of June, 2016.
HOLLAND & HART LLP
Isl John P. Harrington John P. Harrington Steven G. Jones AMERICAN CIVIL LIBERTIES UNION OF UTAH John Mejia Leah Farrell Attorneys for Plaintiffs and Class Members

8883214_2

50

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 54 of 63
KANE COUNTY
REQUEST FOR QUALIFICATIONS FOR KANE COUNTY PUBLIC DEFENDER SERVICES
Kane County Public Defender Contract (Justice, Juvenile, and District Courts) Kane County Conflict Public Defender Approved Attorney List and Kane County Public Defender Appellate Counsel Services
Introduction Kane County is soliciting qualified attorneys to apply for Kane County Public Defender Services. Kane County is soliciting qualifications for three areas: 1) Public Defender Contract for Justice, Juvenile and District Courts; 2) Attorneys to fill the Approved Attorney List for Conflict Public Defender Services when the chosen public defender has a conflict of interest; and 3) Appellate Public Defender Services for all first appeals of right. Applicants may apply for one or more of the three areas. The right is reserved by Kane County to reject any and all proposals.
Scope of Work Kane County Public Defender Contract: Kane County is accepting applications from qualified applicants to provide public defender services for two years in accordance with the terms of the attached Public Defender Agreement at the rate of $60,844.10 per year.
Kane County Conflict Public Defender Approved Attorney List: Kane County is accepting applications for individuals who desire to be listed and appointed as a conflict public defender on a case-by-case and rotational basis for cases where the Kane County Public Defender has a conflict of interest. Cases are paid at the rate of $750 per case for felony and class A misdemeanor cases and $500 per case for all other misdemeanor cases. Approved attorneys will be contacted by the Court Clerk when appointed on a case and shall comply with the substantive terms of representation as outlined in the attached Public Defender Agreement.
Kane County Appellate Counsel Contract: Kane County is accepting applications for individuals who desire to provide public defender services in all first appeals of right at the rate of $1250 per case and in accordance with the substantive terms of representation as outlined in the attached Public Defender Agreement.
Proposal Requirements Kane County will review each of the submitted applications and select an applicant based on the following information. The application should include the following items:
1. Letter of Interest. Include the Applicant's name and business location, a statement summarizing the experience of the applicant, and a statement clarifying which of the three areas of Public Defender Services for which the applicant desires to be considered.
2. Background. The education, qualifications, and experience of the Applicant. A resume is preferred.
3. References. The Applicant must provide a list of references that includes contact information.
4. Other Associated Attorneys. If the Applicant works as part of a law firm the application must also include the names and resumes of other attorneys m the firm that may potentially provide services or assist in providing services.
Page 1 of2

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 55 of 63
Submittal Instructions Applications will be received at the Kane County Clerk's Office 76 North Main St., Kanab, Utah 84741 until 5:00 p.m. on Wednesday, March 2nd, 2016. Hard copies are acceptable but an electronic version of the application is preferred and can be emailed to clerkkj@kane.utah.gov. Correspondence, questions and/or clarifications of the application procedure should be directed to: Karla Johnson Kane County Clerk, 76 North Main, Kanab, UT 84741, (435) 644-2458 clerkkj@kane.utah.gov. Selection Criteria Applicants will be selected based upon qualifications, experience, and ability to comply with the County's obligation to provide a constitutionally adequate defense. Selection Process Completed applications must be received by 5:00 p.m. on Wednesday, March 2nd, 2016. The Kane County Commission will review the applications and may request interviews of qualified applicants on March 141h, 2016 (anticipated date). Applicants will be selected and notified of the award within one to two weeks, but likely within the first week. The awarded applicants will be contacted to enter into a contract for services. If the awarded proposal does not enter into a formal contract the next best applicant will be contacted. It is anticipated that services will begin April or May 1si, 2016.
Page 2 of2

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 56 of 63
PUBLIC DEFENDER AGREEMENT TRIAL SERVICES
March 1, 2016 - February 28, 2018
This agreement made and executed by and between Kane County, a body corporate and politic of the State of Utah, hereinafter referred to as "County," and hereinafter referred to as "Attorney".
WITNESSETH
WHEREAS, pursuant to Utah Code Ann. §77-32-101 et. seq. (1953 as amended), the County is obligated to provide for the defense of an indigent adult and juvenile in criminal cases in the courts; and
WHEREAS, the County may fulfill the statutory obligation through the appointment of qualified legal counsel who may provide the indigent legal services required by Utah Code Ann. §77-32-301 and §77-32-304; and
WHEREAS, Attorney is a qualified and competent attorney, licensed to practice law in the State of Utah and is willing to enter into this agreement with the County and is willing and desirous to perform the necessary legal services for indigent juvenile and adult defendants;
NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein, it is hereby agreed between the parties as follows:
Section 1. REPRESENTATION
1.1 Utah Code Ann. §77-32-301 requires Counties "[t]o provide counsel for each indigent who faces the substantial probability of the deprivation of the indigent's liberty."
1.2 Pursuant to statutory directive, Attorney shall provide competent legal counsel in criminal matters for persons charged with criminal acts in the Justice, District or Juvenile Courts of Kane County (hereinafter "indigent defendant(s)") except as specifically excluded by Section 6 and Section 7.1 below. These criminal matters may include any misdemeanors and any felony up to and including first degree felonies.
1.3 Attorney shall cooperate with the courts to obtain an affidavit from the individual defendant averring his/her inability to pay for private counsel. The affidavit shall comply with the requirements of Utah Code Ann. §77-32-202. Attorney agrees not to act in a case until the court has issued its order of appointment. Attorney further agrees to promptly notify the court of any changes with regard to the

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 57 of 63
indigent status of a defendant, which changes would affect the qualifying of the defendant for court-appointed counsel. Attorney also agrees to assist the courts and the County Attorney's Office in providing information necessary to recover costs pursuant to Utah Code Ann. §77-32-202(6).
Section 2. QUALIFICATIONS
2.1 By his signature below, Attorney certifies that he is a member in good standing of the Utah Bar and that he is competent in the criminal practice oflaw. Attorney further certifies that he shall at all times during the period of this contract, maintain his status as a member in good standing of the Utah Bar.
2.2 Attorney certifies that he is a citizen of the United States or permanent resident alien.
2.3 Attorney shall maintain a bona fide office in the County at which to conduct business which shall be made known to the clients served under this agreement.
2.4 Attorney Agrees to abide by all federal state and local laws, to abide by the Canons of Ethics adopted by the Utah Bar Association and to be bound by the Rules of Civility adopted by the Utah Supreme Court.
2.5 Attorney agrees that he is not currently, nor shall be, party to any litigation which would place his licensing or standing with the Utah Bar in jeopardy.
2.6 Attorney shall, during the period ofthis Agreement, maintain professional malpractice insurance and provide to the County, evidence of the insurance. Additionally, Attorney agrees to hold the County harmless from all damages, loss or injury it may suffer or be held liable for as a result of the conduct of Attorney or as a result of this Agreement.
2.7 In the event of any change of address, on-going conflict of interest, conflicting litigation or inability to practice law, the Attorney shall promptly notify the County in writing of such change of status.
2.8 Attorney shall keep abreast of all current legal trends and to that end shall
maintain sufficient continuing professional education credits during the period of this agreement. To further encourage the continuing education of Attorney, the County shall pay tuition costs annually for one (1) criminal law continuing legal education seminar or up to eight (8) hours of criminal law related continuing legal education presented by Utah's Criminal Defense Association, Utah Prosecution Council, or other equivalent approved entity during the period ofthis agreement.
Section 3 BASE DUTIES OF ATTORNEY
In exchange for the base compensation described in Section 5.1 below, Attorney agrees
2

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 58 of 63
to provide the following base duties in his representation of indigent defendants.
3.1 Pursuant to Utah Code Ann. §77-32-301, Attorney shall, subject to the exclusions of Section 6 and Section 7.1 below, provide competent and timely representation and counsel for each indigent defendant who has been charged by the Kane County Attorney's Office with violations of Utah law or County Ordinance in proceedings before the Justice, District and Juvenile Courts of Kane County and who faces the substantial probability of the deprivation of liberty as outlined in Section I above.
3.2 It is understood and agreed that accessibility to indigent defendants is an integral consideration in the making of this agreement and therefore the Attorney agrees to be available and accessible to indigent clients reasonably in advance of any hearing or trial. Attorney also agrees to make reasonable efforts to visit indigent defendants who are incarcerated in the Kane County Jail, admitted to a hospital or otherwise confined at the earliest possible moment; to return telephone calls as soon as reasonably possible and to otherwise be reasonably accessible to all indigent defendants.
3.3 Attorney shall, subject to the exclusions of Section 6 and Section 7.1 below, provide legal representation to indigent defendants in all matters involving criminal charges and for which Kane County is obligated by statute to provide legal services. The representation shall include conferring with clients, attending all matters before the court including scheduling conferences, all hearings and trials, and all other matters required to ensure adequate representation including, but not limited to probation revocation hearings and restitution hearings.
3.4 In the event of a scheduling conflict, Attorney must make his best effort to ensure that the representation under this contract is the first priority in scheduling. In the event Attorney requires that a matter assigned to him be temporarily reassigned on the basis of a scheduling conflict, the Attorney shall use only those attorneys currenlty practicing within the same law firm who have similar qualifications.
3.5 Attorney is responsible to always appear for his assigned indigent defendants whenever and wherever Court is held on their cases, including when those appearances are in Justice, District and/or Juvenile Court.
3.6 Attorney agrees to maintain adequate and proper records of the representation for each assigned indigent defendant.
3.7 Attorney agrees to provide to the legislative body or its designee, a bi-annual report of the number and types of cases or matters handled specifying the types and classes of offenses, courts, particular clients, non-jury trials, jury trials, hearings other than trials, plea-negotiated settlements and/or such other factors or statistical information as may be reasonably requested by the County that do not violate attorney client privilege. Attorney further agrees to undergo annually a
3

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 59 of 63
performance evaluation before the legislative body or designee to consider compliance with the terms of this agreement, including review of all bi-annual reports considering dispositions on each assigned indigent defendant, continuing legal education and training requirements together with review of qualitative input from the Judiciary and the County Attorney's Office.
3.8 Representation of indigent defendants shall be up to and including the filing of the first notice of appeal (see Section 4 below).
3.9 It is agreed between the parties that the County will bear the reasonable and necessary cost of investigators, laboratory costs, transcripts and defense witness fees, including expert witnesses called on behalf of indigent clients. Further, the County will bear the reasonable travel costs of Attorney, if any is required outside of Kane County in conjunction with their representation. It is agreed by the parties that prior to Attorney incurring expert witness fees on behalf of a client, the amount of the fee and the expert used will be approved by the court having jurisdiction of the case. The Attorney hereby agrees to use his best efforts to minimize the cost and expenses and shall make application for the approval of expenses in the form of a written motion the trial judge, specifying the reasons for the expense. Payment for any expense incurred by the Attorney and not previously approved by the Court or in excess of that approved by the Court, shall be the sole responsibility of the Attorney.
3.10 Except as provided herein, Attorney will bear all other expenses in providing the services contemplated herein, including, but not limited to, transportation to, from and within Kane County, office, telephone, postage, copying and secretarial costs.
Section 4 SPECIAL DUTIES OF ATTORNEY - RIGHT OF APPEAL
4.1 In addition to the base legal services described in Section 3 above, Attorney shall file a notice of appeal to the Utah Court of Appeals and/or the Utah Supreme Court with a copy sent to Appellant Counsel designated by County within ten (10) days of a conviction or final judgment against client upon consultation with and direction of his/her client based on a good faith belief the claims, defenses, or other legal contentions are warranted by existing law, or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law.
4.2 Immediately upon filing a notice of appeal, but not later than ten (10) calendar days thereafter, Attorney shall contact Appellant Counsel designated by County to transition and turn over all relevant records within Attorney's possession or control as necessary in the interests ofjustice and as requested by Appellate Counsel.
Section 5 PAYMENT
4

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 60 of 63

5.1 In exchange for the services rendered in Section 3 above (Base Duties), County

shall pay to Attorney the sum of

annually. Said sum

shall be paid in equal monthly installments delivered by the 15th of each

month in which a payment is due.

5.2 It is specifically understood that Attorney will accept no other payment for work provided under this agreement, other than that compensation provided in the agreement under this Section. In the event a court orders repayment from any defendant for attorney fees and costs, all such repayment shall belong to the County.

5.3 Upon a showing of critical need, Attorney may request additional funding for extraordinary unforeseen expenses which may arise during the term of this agreement. A critical need for extraordinary unforeseen expenses shall be construed in favor of the accused and shall be determined weighing the nature, scope and materiality of the need in light of County resources and the County's constitutional duty to provide adequate defense resources for each indigent who faces the substantial probability of the deprivation of the indigent's liberty.

Section 6 EXCLUSIONS.

6.1 Attorney shall not be required to represent any indigent defendant charged with a capital felony matter.

6.2 Attorney shall not be required to represent any indigent defendant charged with violations of municipal law or any civil matter or any juvenile matter except those involving charges of delinquency.

Section 7 OTHER PROVISIONS

7.1 Conflicts of Interest. Attorney agrees to use his best efforts to avoid any conflicts of interest which would divide loyalty of defense counsel to the client. The parties recognize, however, that certain cases may arise where conflicts are of sufficient magnitude that Attorney cannot represent the indigent defendant.

7 .1.1

In the event of a conflict of interest or other permanent reassignment, Attorney shall first give notice to the Court verbally or in writing of the need and/or purpose ofreassignment with a copy to the County Attorney. If the conflict is approved by the Court, the Court Clerk shall notify an attorney on the approved conflict counsel list of Kane County.

7 .1.2

In the event Attorney is disqualified from representing an indigent defendant after appointment, for any reason involving the misconduct of the Attorney or the filing of litigation in which Attorney is a party by any or all of the courts in which services are provided under this agreement or by the Utah State Bar, then Attorney shall be responsible for costs incurred by the County in provided substitute counsel for indigent

5

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 61 of 63
defendants.
7.2 Assignability of Agreement. This agreement is personal in nature and is not assignable to any person not a party to the agreement without the express written consent of the County.
7.3 Independent Contractor. It is understood by the parties that the Contractor is an independent contractor and not an agent, representative, or employee of the County nor is this contract intended to create such a relationship. It is further understood by the parties that all compensation provided hereunder shall not include deductions for FICA, Federal and State income tax and shall not include retirement benefits, health benefits, holiday pay leave or any other fringe benefit of the County.
7.4 Duration. This contract shall be of two (2) years in duration commencing on April 1, 2016 and ending on March 31, 2018.
7.5 Renewal. This contract may be renewed for an additional one (I) year term, not to exceed February 28, 2019, upon written agreement by both parties.
7.6 Termination. This agreement may be terminated upon the following events:
7.6.1 Breach. In the event that either party hereto shall deem the other to be in breach of any provision hereof, the party claiming the existence of the breach on the other's part shall notify the other in writing of such breach. The breaching party shall have fifteen (15) days in which to commence all actions necessary to cure the breach and shall notify the complaining party in writing of the actions taken to cure the breach. In the event the actions reasonably necessary to cure the breach are not commenced in a timely manner, the complaining party may terminate this agreement.
7.6.2 Voluntary Termination. Either party may terminate this agreement upon the delivery of written notice to the other party ninety (90) days prior to the termination.
7.6.3 Misconduct. In the event any disciplinary action is taken by the Utah State Bar against the Attorney, this contract may be immediately terminated without notice.
7.7 Notice. Any notice required by this agreement shall be given in writing addressed to the following unless otherwise designated in writing.
FOR THE COUNTY: Kane County Commission 76 North Main Kanab, Ut 84741
6

Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 62 of 63

FOR THE ATTORNEY:

7.8 Transition. In the event this agreement is terminated under the provisions of Sections 7.6 above or is not renewed under the provisions of Section 7.5 above: 7.8.1 Attorney agrees to complete those existing cases where it is not feasible for Attorney to withdraw. Compensation for such cases shall be the then prevailing rate being paid to attorneys who handle conflict-of-interest cases, reduced by the proportional amount of work already completed.

7.8.1 The Attorney agrees to cooperate with his successors including the filing of all necessary pleadings for withdrawal and to deliver all applicable files, information and materials to the successor.

7.8.2

In the event the Attorney is not permitted to withdraw from the representation in any matter by the court, the County agrees to compensate the Attorney for base services under Section 3 above, at the prevailing rate being paid to attorneys who handle conflict-of-interest cases.

7.9 Private practice. Nothing in this agreement shall prohibit Attorney from representing private clients so long as the representation of private clients does not interfere with or create a conflict of interest in the representation of indigent defendants.

7.10 Governing law. This agreement shall be governed by the laws of the State of Utah.

7.11 Non-funding clause. It is understood by the parties that as a governmental entity, the County funding for this agreement is subject to the funds being appropriated by the legislative body. In the event no funds or insufficient funds are appropriated and budgeted in the fiscal year(s) of this agreement, this agreement shall terminate and become null and void on the last day of the fiscal year for which funds were budgeted and appropriated, or in the event of a reduction in appropriations, on the last day before the reduction becomes effective. Said termination shall not be construed as a breach or default under this agreement and said termination shall be without penalty, additional payments, or other expense to the County of any kind whatsoever, and no right of action for damages or other relief shall accrue to the benefit of Attorney.

7.12 Discrimination. Attorney assures that he will comply with the Americans with

7

,
Case 2:16-cv-00789-DN-DBP Document 2-1 Filed 07/13/16 Page 63 of 63

Disabilities Act (ADA), and Title VI of the Civil Rights Act of 1964 and that no person shall, on the grounds ofrace, creed, color, sex, sexual orientation, marital status, disability, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this agreement.
7.13 Drug Court. As part of this agreement, the Public Defender shall also provide limited representation for all clients accepted into the Kane County Drug Court Program in order to ensure that the clients' legal rights are protected. The Public Defender shall advise Drug Court clients of their legal options, program conditions, and possible sentencing outcomes. Public Defender representation shall commence upon notice to the Public Defender from the Sixth Judicial District Court that an individual is scheduled for a Drug Court Review hearing, and representation shall continue until a client is graduated from, or terminated from, the Drug Court Program. The Public Defender shall attend Drug Court staffing sessions and court sessions, provide input and recommendations on clients' progress and advancement, and shall be available through all phases of the program to advise participants on Drug Court rules, sanctions, legal consequences and penalties, and possible mitigation of charges.

7.14 Entire Agreement. The parties agree that this Agreement constitutes their entire Agreement and any changes or modifications must by agreed to in writing by both parties and approved by the County Legislative Body in a public meeting.

In witness whereof, the parties have executed this contract the day and year written below:

FOR THE COUNTY:

FOR THE ATTORNEY:

Dirk Clayson, Commission Chair

Approved as to form:
Robert Van Dyke Kane County Attorney

8

 
 Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 1 of 11
CLOSED,LC4,OPEN_MJ
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:16−cv−00789−DN

Remick et al v. State of Utah et al Assigned to: Judge David Nuffer Case in other court: 3rd District, Salt Lake County, 160903921 Cause: 28:1441 Notice of Removal− Civil Rights Act
Plaintiff

Date Filed: 07/13/2016 Date Terminated: 03/23/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Colton Guy Remick an individual

represented by John P. Harrington HOLLAND & HART (UT) 222 S MAIN ST STE 2200 SALT LAKE CITY, UT 84101 (801)799−5819 Email: jharrington@hollandhart.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher B. Hadley JONES WALDO HOLBROOK & MCDONOUGH 1441 W UTE BLVD #330 PARK CITY, UT 84098 (435)200−0085 Email: chadley@joneswaldo.com TERMINATED: 06/08/2017 ATTORNEY TO BE NOTICED

Jennifer S. Horne HOLLAND & HART (UT) 222 S MAIN ST STE 2200 SALT LAKE CITY, UT 84101 (801)799−5904 Email: jshorne@hollandhart.com ATTORNEY TO BE NOTICED

John M. Mejia ACLU OF UTAH 355 N 300 W STE 1 SALT LAKE CITY, UT 84103 (801)521−9862 Email: jmejia@acluutah.org ATTORNEY TO BE NOTICED

Leah M. Farrell ACLU OF UTAH 355 N 300 W STE 1 SALT LAKE CITY, UT 84103 (801)521−9862 Email: lfarrell@acluutah.org ATTORNEY TO BE NOTICED

Steven G. Jones HOLLAND & HART (UT) 222 S MAIN ST STE 2200 SALT LAKE CITY, UT 84101 (801)799−5800 Email: sgjones@hollandhart.com ATTORNEY TO BE NOTICED

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 2 of 11

Plaintiff
Skylar W. Garner an individual

represented by John P. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher B. Hadley (See above for address) TERMINATED: 06/08/2017 ATTORNEY TO BE NOTICED

Jennifer S. Horne (See above for address) ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Steven G. Jones (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bryce Tucker Lloyd an individual

represented by John P. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher B. Hadley (See above for address) TERMINATED: 06/08/2017 ATTORNEY TO BE NOTICED

Jennifer S. Horne (See above for address) ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Steven G. Jones (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Anthony Murdzak an individual

represented by John P. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher B. Hadley (See above for address) TERMINATED: 06/08/2017

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 3 of 11

ATTORNEY TO BE NOTICED

Jennifer S. Horne (See above for address) ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Steven G. Jones (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Colter Ricks an individual

represented by John P. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher B. Hadley (See above for address) TERMINATED: 06/08/2017 ATTORNEY TO BE NOTICED

Jennifer S. Horne (See above for address) ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED

Steven G. Jones (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Brandon Timms an individual

represented by John P. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher B. Hadley (See above for address) TERMINATED: 06/08/2017 ATTORNEY TO BE NOTICED

Jennifer S. Horne (See above for address) ATTORNEY TO BE NOTICED

John M. Mejia (See above for address) ATTORNEY TO BE NOTICED

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 4 of 11
Leah M. Farrell (See above for address) ATTORNEY TO BE NOTICED
Steven G. Jones (See above for address) ATTORNEY TO BE NOTICED

V. Defendant State of Utah
Defendant Sean D. Reyes in his capacity as Attorney General of the State of Utah

represented by Andrew Dymek UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856) LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: adymek@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David N. Wolf UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856) LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: dnwolf@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Parker Douglas UTAH ATTORNEY GENERAL'S OFFICE 350 N STATE ST STE 230 PO BOX 142320 SALT LAKE CITY, UT 84114−2320 (801)538−9600 TERMINATED: 07/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Dymek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David N. Wolf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Parker Douglas (See above for address) TERMINATED: 07/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 5 of 11
Movant Roger Bryner

Date Filed 07/13/2016
07/13/2016 07/14/2016 07/14/2016
07/18/2016 07/18/2016 07/20/2016
07/20/2016 07/20/2016
07/20/2016 07/20/2016

# Docket Text
1 Case has been indexed and assigned to Magistrate Judge Brooke C. Wells. Defendants Sean D. Reyes, State of Utah is directed to E−File the Notice of Removal and cover sheet (found under Complaints and Other Initiating Documents) and pay the filing fee of $ 400.00 by the end of the business day. NOTE: The court will not have jurisdiction until the opening document is electronically filed and the filing fee paid in the CM/ECF system. (mms) (Entered: 07/13/2016)
2 NOTICE OF REMOVAL from 3rd District Court, Salt Lake, case number 160903921, (Filing fee $ 400, receipt number 1088−2550470) filed by Sean D. Reyes, State of Utah. (Attachments: # 1 Exhibit A−Summons and Complaint, # 2 Exhibit Certificate of Service, # 3 Civil Cover Sheet Civil Cover Sheet) Assigned to Magistrate Judge Brooke C. Wells (Wolf, David) (Entered: 07/13/2016)
3 NOTICE OF ADR, e−mailed or mailed to Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms, Defendants Sean D. Reyes, State of Utah. (mms) (Entered: 07/14/2016)
4 NOTICE − This case is assigned to a magistrate judge. To consent or request reassignment, use the form on this link or use the included form for non−efilers and send it to consents@utd.uscourts.gov within 15 days or mail to the court with Attention: Consent Clerk on the envelope. Notice e−mailed or mailed to Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms, Defendants Sean D. Reyes, State of Utah. Form due by 7/29/2016. (mms) (Entered: 07/14/2016)
5 RECEIVED Consent/Reassignment Form from Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (las) (Entered: 07/18/2016)
6 NOTICE of Appearance by Parker Douglas on behalf of Sean D. Reyes, State of Utah (Douglas, Parker) (Entered: 07/18/2016)
7 MOTION (1) Notice of Non−Compliance with Local Rule CUCivR 42−1 Regarding Motion to Consolidate; and (2) Motion for Order Voiding Motion to Consolidate with Respect to Plaintiffs and Memorandum in Support of Motion for Order and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Exhibit 1 − Email from Valerie Valencia, # 2 Exhibit 2 − Email from Valerie Valencia, # 3 Exhibit 3 − Docket)(Harrington, John) (Entered: 07/20/2016)
8 NOTICE of Consolidation by Sean D. Reyes, State of Utah (Wolf, David) (Entered: 07/20/2016)
9 EXHIBITS filed by Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms re 7 MOTION (1) Notice of Non−Compliance with Local Rule CUCivR 42−1 Regarding Motion to Consolidate; and (2) Motion for Order Voiding Motion to Consolidate with Respect to Plaintiffs and Memorandum in Support of Motion for Order and Memorandum in Suppo. (Harrington, John) (Entered: 07/20/2016)
10 DOCKET TEXT ORDER FOR REASSIGNMENT. Based upon the procedural posture of the case and the pending motion, [docket no. 7] even as all parties have not yet consented to the jurisdiction of a magistrate judge, the Court orders reassignment of this case to a district judge. No attached document Signed by Magistrate Judge Brooke C. Wells on 7/20/2016. (rh) (Entered: 07/20/2016)
11 After review of the case, case reassigned to District Judge per 10 Docket text order. Case randomly assigned to Judge Robert J. Shelby. Magistrate Judge Brooke C. Wells no longer assigned to the case. (las) (Entered: 07/20/2016)

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 6 of 11

07/21/2016
07/26/2016 07/26/2016 07/26/2016 07/26/2016 07/26/2016
07/26/2016 07/26/2016 07/26/2016 07/26/2016 07/26/2016 07/26/2016 07/26/2016

12 RESPONSE to Motion re 7 MOTION (1) Notice of Non−Compliance with Local Rule CUCivR 42−1 Regarding Motion to Consolidate; and (2) Motion for Order Voiding Motion to Consolidate with Respect to Plaintiffs and Memorandum in Support of Motion for Order and Memorandum in Suppo filed by Defendants Sean D. Reyes, State of Utah. (Attachments: # 1 Exhibit, # 2 Exhibit)(Wolf, David) (Entered: 07/21/2016)
13 NOTICE of Appearance by Jennifer S. Horne on behalf of All Plaintiffs (Horne, Jennifer) (Entered: 07/26/2016)
14 NOTICE of Appearance by Christopher B. Hadley on behalf of All Plaintiffs (Hadley, Christopher) (Entered: 07/26/2016)
15 MOTION Ex Parte for Leave to File Over Length Memorandum filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Text of Proposed Order)(Jones, Steven) (Entered: 07/26/2016)
16 Plaintiff's MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Jones, Steven) (Entered: 07/26/2016)
17 AFFIDAVIT/DECLARATION of John P. Harrington in Support re 16 Plaintiff's MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Exhibit 1−2015 GRAMA Request, # 2 Exhibit 2−2009 GRAMA Request, # 3 Exhibit 3−Duchesne and Morgan Counties, # 4 Exhibit 4−Millard County, # 5 Exhibit 5−Cache County, # 6 Exhibit 6−Davis County, # 7 Exhibit 7−Iron County, # 8 Exhibit 8−Sevier County, # 9 Exhibit 9−Failing Gidion, # 10 Exhibit 10−October 26, 2015 Report, # 11 Exhibit 11−Judicial Council Report)(Jones, Steven) (Entered: 07/26/2016)
18 AFFIDAVIT/DECLARATION of Steven G. Jones in Support re 16 Plaintiff's MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Exhibit 1−First Amended and Supplemental Complaint)(Jones, Steven) (Entered: 07/26/2016)
19 AFFIDAVIT/DECLARATION of John Mejia in Support re 16 Plaintiff's MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Jones, Steven) (Entered: 07/26/2016)
20 AFFIDAVIT/DECLARATION of Leah M. Farrell in Support re 16 Plaintiff's MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Jones, Steven) (Entered: 07/26/2016)
21 NOTICE OF CONVENTIONAL FILING of Declarations of Class−Action Plaintiffs Colton Guy Remick and Brandon Timms filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms (Jones, Steven) (Entered: 07/26/2016)
22 AFFIDAVIT/DECLARATION of Colton Guy Remick in Support re 16 Plaintiff's MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Jones, Steven) (Entered: 07/26/2016)
23 AFFIDAVIT/DECLARATION of Brandon Timms in Support re 16 Plaintiff's MOTION to Certify Class and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Jones, Steven) (Entered: 07/26/2016)
24 ORDER granting 15 Plaintiffs' Ex Parte Motion for Leave to File Over Length Motion for Class Certification. Signed by Judge Robert J. Shelby on 7/26/2016. (jds) (Entered: 07/26/2016)

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 7 of 11

07/26/2016
07/29/2016 07/29/2016 08/05/2016 08/05/2016 08/05/2016 08/08/2016
08/08/2016 10/18/2016 10/18/2016 11/21/2016 11/28/2016 12/02/2016

25 WITHDRAWAL OF MOTION by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms re 7 MOTION (1) Notice of Non−Compliance with Local Rule CUCivR 42−1 Regarding Motion to Consolidate; and (2) Motion for Order Voiding Motion to Consolidate with Respect to Plaintiffs and Memorandum in Support of Motion for Order and Memorandum in Suppo filed by Colter Ricks, Bryce Tucker Lloyd, Skylar W. Garner, Colton Guy Remick, Brandon Timms, Anthony Murdzak . (Harrington, John) (Entered: 07/26/2016)
26 Stipulated MOTION for Extension of Time to File Answer to Plaintiffs' Amended Complaint filed by Defendants Sean D. Reyes, State of Utah. (Attachments: # 1 Text of Proposed Order Order)(Wolf, David) (Entered: 07/29/2016)
27 ORDER granting 26 Motion for Extension of Time to Answer Answer deadline updated for Sean D. Reyes answer due 8/5/2016; State of Utah answer due 8/5/2016. Signed by Judge Robert J. Shelby on 7/29/2016. (jds) (Entered: 07/29/2016)
28 MOTION to Dismiss and Memorandum in Support filed by Defendants Sean D. Reyes, State of Utah. (Attachments: # 1 Text of Proposed Order)(Douglas, Parker) (Entered: 08/05/2016)
29 Defendant's MOTION to Stay re 16 Plaintiff's MOTION to Certify Class and Memorandum in Support and Memorandum in Support filed by Defendants Sean D. Reyes, State of Utah. (Attachments: # 1 Text of Proposed Order)(Wolf, David) (Entered: 08/05/2016)
30 Defendant's MOTION for Extension of Time to File Response/Reply as to 16 Plaintiff's MOTION to Certify Class and Memorandum in Support and Memorandum in Support filed by Defendants Sean D. Reyes, State of Utah. (Attachments: # 1 Text of Proposed Order)(Wolf, David) (Entered: 08/05/2016)
31 DOCKET TEXT ORDER In view of the Motion to Consolidate pending in Case No. 2:16−cv−00053, Cox et al. v. State of Utah, the court orders that all briefing deadlines are stayed relevant to Plaintiffs' Motion to Certify Class 16 and Defendants' Motion to Dismiss 28 filed in this case. In light of this order, the court denies without prejudice Defendants' Motion to Stay 29 and Motion for Extension of Time 30 . Signed by Judge Robert J. Shelby on 8/8/2016. No Document Attached. (jds) (Entered: 08/08/2016)
32 ORDER REFERRING CASE to Magistrate Judge Dustin B. Pead under 28:636 (b)(1)(A), Magistrate to hear and determine all nondispositive pretrial matters. No attached document. Signed by Judge Robert J. Shelby on 8/8/2016. (mjm) (Entered: 08/08/2016)
33 ORDER REASSIGNING CASE. Case reassigned to Judge David Nuffer for all further proceedings. Judge Robert J. Shelby no longer assigned to case, Signed by Judge Robert J. Shelby on 10/18/2016. Case Number shall now read 2:16cv00789 DN (rks) (Entered: 10/18/2016)
34 NOTICE AFFIRMING PRIOR ORDER OF REFERENCE re 32 Order Referring Case to Magistrate Judge. Orders of the prior judge are affirmed including the order of reference to Magistrate Judge Dustin Pead under 28:636 (b)(1)(A). (rks) (Entered: 10/18/2016)
35 Plaintiff's MOTION for Lift of Stay and Request for Scheduling Hearing and Entry of Scheduling Order Pursuant to Rule 16 F.R.C.P. filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Harrington, John) (Entered: 11/21/2016)
36 Motions No Longer Referred: 35 Plaintiff's MOTION for Lift of Stay and Request for Scheduling Hearing and Entry of Scheduling Order Pursuant to Rule 16 F.R.C.P. (jcw) (Entered: 11/28/2016)
37 Motions No Longer Referred: 35 Plaintiff's MOTION for Lift of Stay and Request for Scheduling Hearing and Entry of Scheduling Order Pursuant to Rule 16 F.R.C.P. (jcw) (Entered: 12/02/2016)

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 8 of 11

12/05/2016 12/06/2016 12/08/2016

38 Amended MOTION to Stay re 35 Plaintiff's MOTION for Lift of Stay and Request for Scheduling Hearing and Entry of Scheduling Order Pursuant to Rule 16 F.R.C.P. and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Harrington, John) (Entered: 12/05/2016)
39 Motions No Longer Referred: 38 Amended MOTION to Stay re 35 Plaintiff's MOTION for Lift of Stay and Request for Scheduling Hearing and Entry of Scheduling Order Pursuant to Rule 16 F.R.C.P. and Memorandum in Support shall be handled by the District Court. (amn) (Entered: 12/06/2016)
40 DOCKET TEXT ORDER taking under advisement 38 Motion to Stay. Per DTO 31 the stay of this case was based on a motion to consolidate filed in Case No. 2:16−CV−53 pending before Judge Dee Benson (docket no. 41 in Judge Benson's case). Judge Benson issued an order dismissing Case No. 2:16−CV−53, which rendered the motion to consolidate the cases moot (docket no. 58 in Judge Benson's case). A Notice of Appeal was filed in Case No. 2:16−CV−53−DB on December 7, 2016 (docket no. 59 in Judge Benson's case).

The parties are directed to file simultaneous briefing by no later than 4:00 p.m., Thursday, December 15, 2016, discussing the impact of the appeal of Case No. 2:16−CV−53−DB on the stay of proceedings in this case and any need to avoid potential for conflicting rulings with the 10th Circuit Court of Appeals. The court will rule on the state of the record as of 4:00 p.m., Thursday, December 15, 2016.

12/15/2016 12/15/2016 01/04/2017 01/04/2017

Signed by Judge David Nuffer on 12/08/2016. No attached document. (apm) (Entered: 12/08/2016)
41 Simultaneous BRIEF re 40 Order on Motion to Stay,,,, filed by Defendants Sean D. Reyes, State of Utah. (Attachments: # 1 Exhibit A − Cox, Hearing Transcript of July 27, 2016)(Wolf, David) (Entered: 12/15/2016)
42 BRIEF re 40 Order on Motion to Stay,,,, Plaintiffs' Memorandum Regarding Impact of Cox Case Notice of Appeal on Remick Case filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Harrington, John) (Entered: 12/15/2016)
43 DOCKET TEXT ORDER finding as moot 35 Motion for Lift of Stay. Given the filing of Plaitiffs' 38 Amended Motion for Lift of Stay, Plaintiffs' 35 Motion for Lift of Stay is moot. Signed by Judge David Nuffer on 01/04/2017. No attached document. (apm) (Entered: 01/04/2017)
44 DOCKET TEXT ORDER granting in part and denying in part 38 Motion to Stay. After balancing factors of judicial economy, the benefits of a stay, and any hardship to the parties, and carefully considering the issues raised in this case and in the similar case Cox et al v. State of Utah et al, Case No. 2:16−CV−53−DB, the stay of proceedings is LIFTED IN PART to permit disposition of Defendants' 28 Motion to Dismiss. Therefore, Plaintiffs' 38 Motion is granted and the stay of proceedings is lifted for purposes of briefing and ruling on Defendants' 28 Motion to Dismiss. However, the stay of proceedings shall remain in effect for all other purposes.

Plaintiffs' response to Defendants' 28 Motion to Dismiss must be filed by no later than February 1, 2017. Defendants' reply, if any, must be filed by no later than February 15, 2017. Either party may request a hearing on Defendants' 28 Motion to Dismiss, but a determination as to whether a hearing is necessary will not be made until briefing on the 28 Motion to Dismiss is complete.

02/01/2017

Signed by Judge David Nuffer on 01/04/2017. No attached document. (apm) (Entered: 01/04/2017)
45 Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Harrington, John) Modified on 2/2/2017: corrected motion relief (alt) (Entered: 02/01/2017)

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 9 of 11

02/01/2017
02/02/2017 02/09/2017
02/10/2017 03/13/2017 03/15/2017
03/16/2017 03/17/2017
03/20/2017 03/21/2017 03/28/2017 04/04/2017 04/05/2017
04/06/2017 04/20/2017

46 Plaintiff's MEMORANDUM in Opposition re 28 MOTION to Dismiss filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Exhibit 1−Red−Line Version of Complaint, # 2 Exhibit 2−Informal Opinion, # 3 Exhibit 3−Hurrell−Harring Statement of Interest, # 4 Exhibit 4−Wilbur Statement of Interest)(Harrington, John) (Entered: 02/01/2017)
47 ORDER granting 45 Motion for Leave to File Excess Pages. Signed by Judge David Nuffer on 2/2/17 (alt) (Entered: 02/02/2017)
48 MOTION for Extension of Time file reply brief in support of motion to dismiss and Memorandum in Support , MOTION for Leave to File Excess Pages and Memorandum in Support filed by Defendants Sean D. Reyes, State of Utah. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Douglas, Parker) (Entered: 02/09/2017)
49 ORDER granting 48 Motion for Extension of Time; granting 48 Motion for Leave to File Excess Pages. Signed by Judge David Nuffer on 2/10/17 (alt) (Entered: 02/10/2017)
50 REPLY to Response to Motion re 28 MOTION to Dismiss filed by Defendants Sean D. Reyes, State of Utah. (Douglas, Parker) (Entered: 03/13/2017)
51 Plaintiff's MOTION for Leave to File Surreply Brief in Opposition to Defendants' Motion to Dismiss filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead.(Harrington, John) (Entered: 03/15/2017)
52 MEMORANDUM in Opposition re 51 Plaintiff's MOTION for Leave to File Surreply Brief in Opposition to Defendants' Motion to Dismiss filed by Defendants Sean D. Reyes, State of Utah. (Douglas, Parker) (Entered: 03/16/2017)
53 REQUEST to Submit for Decision re 51 Plaintiff's MOTION for Leave to File Surreply Brief in Opposition to Defendants' Motion to Dismiss , 52 Memorandum in Opposition to Motion filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Harrington, John) (Entered: 03/17/2017)
54 Motions No Longer Referred: Plaintiff's Motion for Leave to File Surreply Brief in Opposition to Defendants' Motion to Dismiss 51 shall be handled by the District Court. (amn) (Entered: 03/20/2017)
55 ORDER granting 51 Motion for Leave to File Surreply Brief re 28 Motion to Dismiss. Signed by Judge David Nuffer on 3/21/17 (alt) (Entered: 03/21/2017)
56 Surreply BRIEF re 28 MOTION to Dismiss filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Harrington, John) (Entered: 03/28/2017)
57 Surreply BRIEF re 28 MOTION to Dismiss filed by Defendants Sean D. Reyes, State of Utah. (Douglas, Parker) (Entered: 04/04/2017)
58 REQUEST to Submit for Decision re 28 MOTION to Dismiss, 56 Brief, 50 Reply Memorandum/Reply to Response to Motion, 57 Brief, 46 Memorandum in Opposition to Motion, filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Harrington, John) (Entered: 04/05/2017)
59 MOTION to Intervene and Memorandum in Support filed by Movant Roger Bryner (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit D, # 4 Exhibit E) Motion referred to Dustin B. Pead (alt) (Entered: 04/06/2017)
60 MEMORANDUM in Opposition re 59 MOTION to Intervene and Memorandum in Support filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Exhibit 1 − Declaration of David S. McNeill, PhD, MBA, # 2 Exhibit 2 − Bryner State Cases, # 3 Exhibit 3 − Bryner Federal Cases)(Harrington, John) (Entered: 04/20/2017)

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 10 of 11

04/20/2017 04/27/2017
05/01/2017 05/01/2017 05/03/2017 05/04/2017 05/10/2017 05/12/2017 05/15/2017 06/08/2017 07/25/2017 07/27/2017 08/07/2017 08/21/2017 08/21/2017

61 MEMORANDUM in Opposition re 59 MOTION to Intervene and Memorandum in Support filed by Defendants Sean D. Reyes, State of Utah. (Douglas, Parker) (Entered: 04/20/2017)
62 DECLARATION of David S. McNeill, PhD, MBA re 60 Memorandum in Opposition to Motion, Amended Declaration filed by Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Attachments: # 1 Exhibit A−North Carolina PD Directory, # 2 Exhibit B−Utah Courts Information XChange Subscription Agreement, # 3 Exhibit C−Court Calendar, # 4 Exhibit D−Excerpt of Criminal Cases, # 5 Exhibit E−Excerpt of Attorneys, # 6 Exhibit F−Red−Lined Version of Declaration)(Harrington, John) (Entered: 04/27/2017)
63 CERTIFICATE OF SERVICE by Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms re 62 Declaration,, (Harrington, John) (Entered: 05/01/2017)
64 NOTICE of SUPPLEMENTAL AUTHORITY by Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms (Attachments: # 1 Exhibit 1 − Decision) (Harrington, John) (Entered: 05/01/2017)
65 MOTION for Extension of Time to File Response/Reply as to 59 MOTION to Intervene, MOTION for Leave to File Excess Pages filed by Movant Roger Bryner. (Attachments: # 1 Text of Proposed Order) Motions referred to Dustin B. Pead (alt) (Entered: 05/03/2017)
66 ORDER granting 65 Motion for Extension of Time to File Response/Reply re 59 MOTION to Intervene (Reply due by 5/12/2017); granting 65 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Dustin B. Pead on 5/4/17 (alt) (Entered: 05/04/2017)
67 Mail Returned as Undeliverable. Mail sent to Roger Bryner as to doc no. 66 . (kpf) (Entered: 05/10/2017)
68 REPLY to Response to Motion re 59 MOTION to Intervene filed by Movant Roger Bryner (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (alt) (Entered: 05/12/2017)
69 REQUEST to Submit for Decision re 59 MOTION to Intervene filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Harrington, John) (Entered: 05/15/2017)
70 NOTICE OF WITHDRAWAL OF COUNSEL of Christopher B. Hadley filed by Christopher B. Hadley on behalf of Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks (Hadley, Christopher) (Entered: 06/08/2017)
71 MOTION to Lift Stay and for Entry of Scheduling Order Regarding Plaintiffs' Motion for Class Certification filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. Motions referred to Dustin B. Pead.(Harrington, John) (Entered: 07/25/2017)
72 SUBSTITUTION OF COUNSEL Andrew Dymek replacing Parker Douglas as counsel on behalf of Sean D. Reyes, State of Utah. (Dymek, Andrew) (Entered: 07/27/2017)
73 Defendant's MEMORANDUM in Opposition re 71 MOTION to Lift Stay and for Entry of Scheduling Order Regarding Plaintiffs' Motion for Class Certification filed by Defendants Sean D. Reyes, State of Utah. (Wolf, David) (Entered: 08/07/2017)
74 REPLY to Response to Motion re 71 MOTION to Lift Stay and for Entry of Scheduling Order Regarding Plaintiffs' Motion for Class Certification filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Harrington, John) (Entered: 08/21/2017)
75 REQUEST to Submit for Decision re 73 Memorandum in Opposition to Motion, 74 Reply Memorandum/Reply to Response to Motion, 71 MOTION to Lift Stay and for Entry of Scheduling Order Regarding Plaintiffs' Motion for Class Certification filed by Plaintiffs Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms. (Harrington, John) (Entered: 08/21/2017)

Case: 2:16-cv-00789-DN As of: 03/25/2019 09:49 AM MDT 11 of 11

01/26/2018 02/09/2018 03/23/2018 03/23/2018

76 NOTICE of SUPPLEMENTAL AUTHORITY by Skylar W. Garner, Bryce Tucker Lloyd, Anthony Murdzak, Colton Guy Remick, Colter Ricks, Brandon Timms (Second) (Attachments: # 1 Exhibit 1 − Order Granting Motion for Class Certification, # 2 Exhibit 2 − Decision) (Harrington, John) (Entered: 01/26/2018)
77 Motions No Longer Referred: 59 Movant Roger Bryner's MOTION to Intervene and 71 Plaintiffs' MOTION to Lift Stay and for Entry of Scheduling Order Regarding for Class Certification shall be handled by the District Court and are no longer referred to the Magistrate Judge. (amn) (Entered: 02/09/2018)
78 MEMORANDUM DECISION AND ORDER granting 28 Motion to Dismiss; finding as moot 59 Motion to Intervene; finding as moot 71 Motion to Lift Stay; finding as moot 16 Motion to Certify Class. Signed by Judge David Nuffer on 3/23/18 (alt) (Entered: 03/23/2018)
79 JUDGMENT: action is dismissed without prejudice − CASE CLOSED. Magistrate Judge Dustin B. Pead no longer assigned to case. Signed by Judge David Nuffer on 3/23/18 (alt) (Entered: 03/23/2018)

 
 Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 1 of 62

John P. Harrington (5242) Steven G. Jones (15063) HOLLAND & HART LLP 222 S. Main Street, Suite 2200 Salt Lake City, Utah 84101 Telephone: (801) 799-5800 Fax: (801) 799-5700 jharrington@hollandhart.com sgjones@hollandhart.com
John Mejia (13965) Leah Farrell (13696) AMERICAN CIVIL LIBERTIES UNION OF UTAH 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Fax: (801) 532-2850 jmejia@acluutah.org lfarrell@acluutah.org
Attorneys for Plaintiffs and Class Members

THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

COLTON GUY REMICK; an individual; SKYLAR W. GARNER, an individual; BRYCE TUCKER LLOYD, an individual; ANTHONY MURDZAK, an individual; COLTER RICKS, an individual; BRANDON TIMMS, an individual; and JOHN DOES 1100;
Plaintiffs,
vs.
STATE OF UTAH and SEAN D. REYES, in his capacity as Attorney General of the State of Utah,
Defendants.

FIRST AMENDED AND SUPPLEMENTAL CLASS ACTION COMPLAINT FOR DECLARATORY
RELIEF
Case No. 160903921 Judge William K. Kendall
1

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 2 of 62

Pursuant to §§ 78B-6-40, et seq., UTAH CODE ANN., and Rule 57 of the Utah Rules of

Civil Procedure, Plaintiffs, on behalf of themselves and all others similarly situated, by and

through the undersigned counsel, upon knowledge with respect to their own acts and on

information and belief as to other matters, hereby complain of Defendants and allege as follows:

INTRODUCTION 1. Plaintiffs bring this civil rights class action to remedy Utah’s failure to provide

constitutionally adequate legal representation to indigent adults accused of crimes in Utah’s

District and Justice courts for which there is a possibility of incarceration. This failure deprives

and threatens to deprive plaintiffs of rights guaranteed to them by the Sixth and Fourteenth

Amendments to the United States Constitution, Article I, § 12 of the Utah Constitution, and § 77-

32-301, UTAH CODE ANN.

2. Plaintiffs seek a declaration from this Court that the indigent defense provided by

the State of Utah, as authorized and operated by the State of Utah and Attorney General Reyes

(collectively, “Defendants”), deprives Plaintiffs of their rights under the Sixth and Fourteenth

Amendments to the United States Constitution. Plaintiffs also seek a declaration from this Court

that the indigent defense system in the State of Utah, as operated by Defendants, violates

Plaintiffs’ rights under Article I, §§ 12 and 24 of the Utah Constitution (right to counsel and

uniform operation of laws); and § 77-32-301, UTAH CODE ANN., the Utah Indigent Defense Act.

Plaintiffs further seek injunctive relief to remedy the systemic failures that lead to this action.

3. The Sixth Amendment of the United States Constitution guarantees that a person

accused of a crime has the right to assistance of counsel for his or her defense. This

constitutional guarantee “cannot be satisfied by mere formal appointment.” United States v.

Cronic, 466 U.S. 648, 655 (1984) (quoting Avery v. Alabama, 308 U.S. 444, 446 (1940)).

8928562_1

2

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 3 of 62

Rather, the Sixth Amendment requires defense counsel to subject the prosecution’s case to “the crucible of meaningful adversarial testing.” Id. at 656. It is the State’s duty to safeguard this right and ensure that people who face the threat of imprisonment receive competent assistance of counsel regardless of their income. Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (sometimes referred to as “Gideon”).
4. Article I, § 12 of the Utah Constitution (Rights of Accused Persons) guarantees that in all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel. Where a person is charged with an offense that may be punished by imprisonment, “the accused is entitled to the effective assistance of a competent member of [the] bar who is willing to identify with the interests of the defendant and present the available defenses.” State v. Wulffenstein, 733 P.2d 120, 121 (Utah 1986); State v. Gray, 601 P.2d 918, 920 (Utah 1979).
5. Article I, Section 24 of the Utah Constitution (Uniform Operation of Laws) mandates that: “[a]ll laws of a general nature shall have uniform operations.”
6. The Utah Indigent Defense Act requires that indigent defendants be provided: “timely representation by competent legal counsel,” the “investigatory resources necessary for a complete defense,” and “undivided loyalty of defense counsel.” UTAH CODE ANN. § 77-32-301.
7. The State of Utah has the exclusive duty to provide indigent persons a constitutionally sufficient defense. Gideon, 372 U.S. at 342-43. The State of Utah has completely abdicated this duty.
8. Rather than provide indigent criminal defense itself, the State of Utah has statutorily delegated that duty to the counties and municipalities. UTAH CODE ANN. § 77-32-306.

8928562_1

3

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 4 of 62

While this delegation might be acceptable if the State of Utah were to provide the proper funding, logistical support, or oversight to the counties and municipalities, the State has done the exact opposite. In fact, the State of Utah presently provides absolutely no financial support, supervision, or oversight to any of its 29 counties, nor to any of its over 100 municipalities. Utah is one of only two states in the nation to refuse to provide any such state funding or supervision. In essence, the State of Utah has not delegated its responsibilities, it has abnegated its responsibilities
9. In Utah, counties and municipalities provide criminal defense to indigent people as a contracted service. In general, this contracting involves counties and municipalities periodically seeking bids from private attorneys on contracts to provide all indigent defense for the county or municipality.
10. With neither guidance nor oversight from Defendants, these contracts are poorly structured, violate widely accepted American Bar Association standards, and lack any mechanism for identifying conflicts of interest. Almost without exception, the contracts provide a fixed flat fee for compensation, regardless of the number of cases the contract attorneys undertake. Also almost without exception, the compensation to public defenders is inadequate to reasonably compensate them, and is invariably lower than the compensation given to prosecutors, with nothing resembling parity between defense and prosecution.
11. Certain county contracts with public defenders require the attorneys to pay the costs of investigators, testing, and expert witnesses with no additional funding from the county, which disincentivizes attorneys from paying for such services out of their own pocket.

8928562_1

4

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 5 of 62

12. All counties require contract attorneys to pay for their own office expenses, overhead, and support staff. As a result, many, if not most, contract attorneys (save for two contracted county legal defender offices) are forced to take on additional private cases for pay— a particularly dangerous practice absent any written guidelines or policies governing conflicts of interest and caseloads.
13. Counties have no written requirements, policies, or standards for evaluating potential conflicts. Counties keep no records of how many cases are assigned to their public defenders.
14. Defendants, like the counties and municipalities, have failed to implement any written policies and/or guidelines regarding the selection, required qualifications, or compensation of public defense counsel. Defendants do not supervise and evaluate public defense counsel. Defendants do not require or provide to public defense counsel continuing legal education specific to criminal defense issues. Defendants do not have guidelines governing the identification and reassignment of conflicts of interest or the appeal of reimbursement requests. Defendants do not monitor caseloads of public defenders. Defendants are unable to identify the public defenders who are providing indigent defense services. There is no central registry of public defenders, much less their individual caseloads.
15. Because of Defendants’ lack of proper diligence, there is no practical way for an independent observer to efficiently determine crucial facts such as: the number of cases assigned to a particular public defender; the available resources for public defenders; or the number of trials or contested motions or hearings involving indigent defendants.

8928562_1

5

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 6 of 62

16. Without access to this type of data, there is no practical way for independent observers to determine whether the public defense in a county or municipality is living up to the key criteria for determining whether the indigent defense services are constitutionally adequate. Such hallmarks include timely meetings with indigent clients (particularly those in custody), conducting discovery, calling expert witnesses, and vigorously contesting the criminal charges.
17. Because neither Defendants nor the counties or municipalities keep any records about the indigent defense system, there is no data-driven or statistical analysis of the Utah indigent defense system.
18. Defendants have been aware of the acute problems of Utah’s indigent defense system for years.
19. First, the lack of funding or oversight is obvious on its face to Defendants. Defendants have long been aware that Utah is truly an outlier among the states in that it is nearly alone in providing no state funding or oversight whatsoever.
20. Moreover, despite the difficulty in data collection, over the last several years, several reports have been issued regarding Defendants’ provision of indigent defense. Each has found a system in crisis.
21. For example, in 2011, the American Civil Liberties Union of Utah published its investigation of indigent defense entitled “Failing Gideon: Utah’s Flawed County-by-County Public Defender System” (www.acluutah.org/images/Failing_Gideon.pdf) (last viewed on June 20, 2016).
22. In 2012, the Sixth Amendment Center was engaged by the Utah Judicial Council (through a grant from the U.S. Department of Justice) to conduct an assessment of Utah’s

8928562_1

6

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 7 of 62

indigent defense system. On October 26, 2015, the Sixth Amendment Center published its report entitled “The Right to Counsel in Utah – An Assessment of Trial-Level Indigent Defense Services” (sixthamendment.org/what-we-do/our-current-projects/Utah-project-page/) (the “6AC Report”) (sixthamendment.org/what-we-do/our-current-projects/Utah-project-page/) (last viewed on June 20, 2016).
23. On the same day, the Utah Judicial Council published its companion analysis entitled “Report – Judicial Council Study Committee on the Representation of Indigent Criminal Defendants in Trial Courts” which can be found at (https://www.utcourts.gov/knowcts/adm/docs/Indigent_Defense_Committee_Report.pdf) (last viewed on June 20, 2016).
24. Each report speaks for itself as to the glaring deficiencies in the system. 25. As a direct result of the Defendants’ actions, the named Plaintiffs in this action are suffering ongoing harm. All of them have had very little time to meet with their public defenders before critical events in their cases, some having spent weeks in jail without any contact, making it impossible for them to meaningfully participate in the defense. Some have been forced to meet with their defenders in the presence of others awaiting criminal hearings because their defenders lack the resources to arrange for private meetings. Several have not had their attorneys assist them in having the court review their bail in a meaningful way. Each of their attorneys are compromised in their ability to engage necessary resources like experts and investigators. Each are likely to feel pressure to accept a disadvantageous plea deal that they are unlikely to fully understand, and are unlikely to be fully advised by their attorneys of the long

8928562_1

7

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 8 of 62

term consequences of a guilty plea. All face significant time incarcerated if convicted of their charges.
26. The State of Utah recently passed legislation pertaining to the provision of indigent defense services. As explained more thoroughly below, that legislation is wholly ineffective in stemming the current, ongoing crisis, and the prospect that it will lead to significant improvements in the future is uncertain at best.
27. As a direct result of Defendants’ actions and inactions, members of the Plaintiffs’ Class have suffered, and will continue to suffer, irreparable harm.
JURISDICTION AND VENUE 28. This Court has subject matter jurisdiction over this action for declaratory and injunctive relief pursuant to UTAH CODE ANN. § 78A-5-102 (original jurisdiction), Utah. R. Civ. P. 57 (declaratory judgments), and UTAH CODE ANN. § 78B-6-401 (jurisdiction of declaratory judgment action). 29. This Court has personal jurisdiction over the Defendants under Utah. R. Civ. P. 17. Defendant Sean D. Reyes is a public official of the State of Utah who is sued in his official capacity in order to enforce the performance of his official duties, UTAH CODE ANN. § 67-5-1 (duties of the attorney general), and the State has consented to be sued for violations of its own Constitution. This Court has jurisdiction over this action under Utah Const. Art. VIII, § 5 and UTAH CODE ANN. § 78A-5-102(1) (jurisdiction of district court). 30. Venue is proper in this judicial district pursuant to UTAH CODE ANN. § 78B-3-302 because Defendants are found in the State of Utah and committed certain wrongs giving rise to this action within this judicial district.

8928562_1

8

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 9 of 62

PARTIES I. PLAINTIFFS
31. Class-Action Representative Colton Guy Remick (“Remick”) is currently incarcerated in the Tooele County Detention Center in Tooele, Utah, with pending charges of possession of a forgery device (3rd Degree Felony), possession or use of a controlled substance (3rd Degree Felony), and use or possession of drug paraphernalia (Class B Misdemeanor). Despite being incarcerated since May 4, 2016, Remick has only spoken to his public defender once, at his initial appearance. When Remick met with his public defender, it was only for a short time and was in the presence of many other defendants, rather than in a confined, confidential location. Other defendants assigned to the same public defender were in a line waiting to meet with the public defender; because of the wait, some defendants were incented to accept a plea deal because, if a plea deal was rejected, defendant would have to go to the back of the line, and wait at least one more hour to again speak with the public defender.
32. Class-action representative Plaintiff Skylar W. Garner (“Garner”) is a 32 year old married man with two children under the age of five who is currently incarcerated in the Carbon County jail due to a violation of a No Contact order. Prior to his arrest, Garner held two jobs as a technician and maintenance specialist. Since his arrest, he has had very little contact with his public defender. The public defender has given Garner no discovery or police reports. His public defender has made no inquiry of Garner as to the facts surrounding the charge. He has spoken with his public defender for less than 5 minutes.
33. Class-Action Representative Bryce Tucker Lloyd (“Lloyd”) is currently incarcerated in the Tooele County Detention Center located in Tooele, Utah, with pending charges of burglary (2nd degree felony), unlawful acquisition, possession, or transfer of a card

8928562_1

9

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 10 of 62

(3rd degree felony), possession or use of a controlled substance (3rd degree felony), unlawful use of a financial transaction (Class B misdemeanor), and use or possession of drug paraphernalia (Class B misdemeanor). When Lloyd met with his public defender at his initial appearance, it was only for a short time and was in the presence of several other defendants, rather than in a confined, confidential location. Lloyd’s public defender has been so habitually unresponsive to his inquiries that Lloyd has stopped attempting to contact him.
34. Class Action Representative Plaintiff Anthony Murdzak (“Murdzak”) is currently incarcerated in the Cache County Jail located in Logan, Utah, with pending charges of theft (3rd Degree Felony) and violation of firearm restrictions (Class A Misdemeanor). Murdzak was arrested on May 28, 2016, but not arraigned until June 7, 2016, ten days after his arrest, at which point he was appointed counsel. He did not meet with counsel prior to the arraignment and the only meeting he had with his defense counsel was during the arraignment. Murdzak received no charging sheet and was not aware of the charges against him and had no information as to why the firearm restriction charge had been made, as he had no firearm at the time of his arrest, nor was one found in the vehicle in which he was driving. Following the arraignment, Murdzak had not met with defense counsel, had received no discovery, was unaware of when he would next meet with his defense counsel or when a preliminary hearing was set for his case.
35. Class Action Representative Plaintiff Colter Ricks (“Ricks”) is currently incarcerated in the Cache County Jail located in Logan, Utah, with pending charges of failure to stop (Class A Misdemeanor), possession of drug paraphernalia (Class A Misdemeanor) and possession of methamphetamine (3rd Degree Felony). Ricks was arrested on May 28, 2016. He was arraigned on May 31, 2016 via video conference. Mr. Ricks had no counsel at the time of

8928562_1

10

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 11 of 62

his arraignment and during the arraignment, bail for a prior charge was revoked and bail for his

current charges was denied. It was only after bail had been revoked on the prior charge and had

been denied for the current charges that Ricks was appointed counsel. Despite having counsel

appointed after the arraignment, Ricks has not met with defense counsel. Ricks’ pre-trial hearing

is set for June 27, by which point he will have spent a month in jail, having not met with a

defense lawyer.

36. Class Action Representative Plaintiff Brandon Timms (“Timms”) is currently

incarcerated in the Cache County Jail located in Logan, Utah, with pending charges of theft

(Class B Misdemeanor) and burglary (2nd Degree Felony). Timms was originally arrested in

Salt Lake County, but was transported and incarcerated in the Cache County Jail because the

offenses for which he was charged allegedly took place in Logan, Utah. While he was arrested

on June 2, 2016, Timms was not arraigned until June 13, 2016, eleven days after his initial arrest

and was not provided with counsel before his arraignment.

II. DEFENDANTS 37. Defendant State of Utah (“State of Utah” or “Utah”) is sued for violations of the

Utah State Constitution. The State Capitol and center of State government are located in Salt

Lake County.

38. Defendant Sean D. Reyes (“Defendant AG” or “Utah AG”) is the elected

Attorney General of Utah and is sued in his official capacity as the person in charge of enforcing

laws of the State of Utah and the Utah and U.S. Constitutions. Pursuant to Article VII, § 16 of

the Constitution of Utah, the Attorney General “shall be the legal adviser of the State officers . . .

and shall perform such other duties as provided by law.” The Utah AG is part of the executive

branch.

8928562_1

11

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 12 of 62

39. In his constitutional role as “legal adviser,” the Utah AG has an implied duty to

ensure that Utah protects the constitutional rights of all of people in Utah, including the right to

legal counsel when facing criminal charges carrying the possibility of incarceration. The Utah

Attorney General also has a duty to ensure that Utah follows its own laws, including statutes

requiring effective representation of indigent defendants. As described herein, the Utah AG has

failed to live up to these duties.

40. The Utah AG maintains his principal office at the Office of the Attorney General,

Utah State Capitol Complex, 350 North State Street, Suite 230, Salt Lake City, Utah 84114,

which is located in Salt Lake City and within this judicial district.

CLASS ACTION ALLEGATIONS 41. Plaintiffs incorporate by reference all previous and following allegations of this

Complaint as if fully laid out here.

42. Plaintiffs Remick, Garner, Lloyd, Murdzak, Timms and Ricks bring this action

pursuant to Utah R. Civ. P. 23(a), 23(b)(1), 23(b)(2) and 23(b)(3) on behalf of themselves and all

others similarly situated.

43. The class represented by the named Plaintiffs (the “Class”) consists of all indigent

persons statewide who have been or will be charged with crimes for which incarceration is a

possible consequence of a conviction.

44. As indigent persons unable to afford to hire counsel to defend them, class

members are dependent upon Defendants to provide them with counsel and other associated

services necessary for their defense.

45. Class members have been and are continuing to be harmed by the Defendants’

failure to fund, administer, or supervise Utah’s indigent criminal defense system as guaranteed

8928562_1

12

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 13 of 62

by the Sixth and Fourteenth Amendments to the United States Constitution and Art. I, § 7 and 12 of the Utah Constitution, and as required under the Utah Indigent Defense Act (Utah Code Ann. § 77-32-101 et. seq.). While the named Plaintiffs have been criminally charged and provided public defenders in three counties, the harms they face are representative of the problems faced by indigent defendants in all counties statewide.
46. Certification of this action as a class action is appropriate under Utah R. Civ. P. 23(b) for the following reasons:
(a) Separate prosecution of these actions by individual class members would create a risk of differing and inconsistent adjudications, creating the possibility of establishing incompatible standards of conduct for Defendants with respect to members of the Class;
(b) The Class is so numerous and fluid as to make joinder of all members of the Class impracticable. At any point in time, hundreds of indigent persons with pending criminal charges punishable by imprisonment must rely on appointed defense counsel for legal representation;
(c) Defendants have acted or refused to act on grounds that are generally applicable to the Class, making declaratory relief with respect to the entire Class appropriate; and,
(d) Common questions of law, fact, and relief relating to and affecting the individual rights of class members predominate over any questions affecting individual class members.
47. Questions of law common to the class include, but are not limited to:

8928562_1

13

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 14 of 62

(a) Whether Defendants have a Constitutional duty under both the United States Constitution and the Utah Constitutions to provide counsel and related services to indigent persons charged with crimes for which incarceration is possible;
(b) The extent and nature of Defendants’ Constitutional duties to provide oversight and supervision for appointed counsel and related defense services to the class members;
(c) Whether Defendants are in violation of their obligations under the Sixth and Fourteenth Amendments to the United States Constitution to ensure that defense counsel appointed for class members have the resources necessary to provide class members with constitutionally adequate representation;
(d) Whether Defendants are in violation of their obligations under Art. I, §§ 7 and 12 of the Utah Constitution to ensure that defense counsel appointed for class members have the resources necessary to provide class members with constitutionally adequate representation;
(e) Whether Defendants are in violation of their obligation under Utah Code Ann. § 77-32-101 et. seq. to ensure that indigent defense services provided by the State of Utah comport with the standards laid out in the Act; and
(f) Whether the State’s delegation of the responsibility for indigent defense to the counties creates disparate access to the fundamental right to counsel in violation of both the Sixth Amendment and Fourteenth Amendments to the United States Constitution and Art. I, § 24 of the Utah Constitution, which states: “All laws of a general nature shall have uniform operations.”
48. Questions of fact common to the class include, but are not limited to:

8928562_1

14

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 15 of 62

(a) Whether Defendants have failed to ensure that defense counsel appointed to represent class members have been provided with the resources necessary to adequately challenge the State’s charges against the class members; and
(b) Whether, as a result of Defendants’ actions and omissions, class members have been and are currently being harmed based on the inability of appointed defense counsel to provide them with constitutionally and statutorily adequate legal representation.
49. The claims of the named Plaintiffs are typical of the claims of the Class as a whole.
50. The claims of the named Plaintiffs arise from the same acts and/or omissions of Defendants, as do the claims of the members of the Class.
51. Class members have no significant interest in individual control of these claims that would make class action inappropriate.
52. The resolution of the claims presented by the Class is more likely to result in fair and efficient adjudication than other available methods.
53. Based on these facts, prosecution of this case as a class action is superior and preferable to the prosecution of myriad individual actions.
54. The individuals identified as named Plaintiffs will fairly and adequately protect the interests of the Class and will vigorously prosecute this suit on behalf of the Class. Plaintiffs and their legal counsel know of no conflicts of interest between the named Plaintiffs as representatives and class members concerning the relief sought in this complaint.
55. The named Plaintiffs are jointly represented by attorneys associated with the American Civil Liberties Union of Utah (“ACLU”) and the law firm of Holland & Hart LLP.

8928562_1

15

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 16 of 62

The ACLU has extensive experience in successfully representing individuals and classes in similar actions. The attorneys for the named Plaintiffs are capable and experienced litigators, are attorneys of good reputation, and have successfully represented plaintiffs in state and federal courts in complex litigation. Plaintiffs’ attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the Class.
FACTS ENTITLING CLASS-ACTION PLAINTIFFS TO RELIEF I. DEFENDANTS HAVE FAILED TO PERFORM THEIR DUTY TO PROVIDE
INDIGENT DEFENSE AFTER HAVING DELEGATED THE RESPONSIBILITY TO COUNTIES AND MUNICIPALITIES 56. It is a core guarantee of the Sixth Amendment that every criminal defendant, regardless of economic means, has the right to counsel when facing incarceration. Gideon, 372 U.S. at 340-344 (holding that the right to counsel is “fundamental and essential to a fair trial”). This right is so fundamental that any impairment of the right erodes the principles of liberty and justice that underpin all civil rights in criminal proceedings. The duty to provide criminal indigent defense is placed on the states. Id., at 342. 57. The State of Utah has delegated its Sixth Amendment responsibility to the counties and municipal legislative bodies, UTAH CODE ANN. § 77-32-306. A. Failure to Supervise and Oversee Utah’s Indigent Defense System 58. After delegating its Sixth Amendment responsibilities, Defendants have done nothing to ensure that the indigent defense system in Utah and the provision of indigent defense by the counties and municipalities is of a quality that meets constitutional standards. 59. As the principals responsible for indigent defense, Defendants have allowed their agents (i.e., the counties and municipalities) to operate without any accountability or governance as to the essential elements of a criminal defense system for indigent persons. Defendants leave

8928562_1

16

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 17 of 62

each county and municipality to its own devices in providing indigent defense with no obligation to report on those activities to Defendants.
60. Defendants have failed to require their agents to report on the indigent defense the agents provide. As a direct and proximate result, Defendants cannot determine if Utah’s indigent defense system meets constitutional standards, particularly with respect to the caseload placed on public defenders.
61. By purposefully failing to require their agents to report or document their activities regarding indigent criminal defense, Defendants have breached their obligation to administer the indigent defense system and uphold the dictates of Gideon and its progeny.
62. Defendants have recently highlighted their total lack of supervision of the Utah indigent defense system by the Utah Legislature’s adoption of Senate Bill 155 (“SB 115”) which was signed by Governor Herbert on March 22, 2016, and which became effective on May 10, 2016.
63. SB 115 creates and describes the duties of the Utah Indigent Defense Commission (“UID Commission”). § 77-32-804, UTAH CODE ANN. Among other things, SB 155 allows, but does not require, the UID Commission to maintain “oversight to collect data, audit attorney performance, establish standards and enforce the principles listed above.” § 77-32804(1)(a)(vii), UTAH CODE ANN.
64. SB 115 also instructs the UID Commission to “develop and adopt guiding principles,” for indigent defense systems, § 77-32-804(1)(a)(i) (emphasis added), and to “develop and oversee the establishment of advisory caseload principles” § 77-32-804(1)(b) (emphasis added.)

8928562_1

17

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 18 of 62

65. SB 155 does not require counties and municipalities to follow any “guiding principles” or “advisory caseload principles, ” which the UID Commission will set at some point in the future.
66. Rather, counties and municipalities will decide whether to undertake various steps to potentially qualify for grant money from the UID Commission, including passing a resolution adopting UID Commission standards, submitting a certified copy of that resolution, submitting a grant application, and making additional expenditures of their own, unless they can show certain conditions are met. See §§ 77-32-806 & 807.
67. The only consequences a county or municipality faces for not meeting or adopting UID Commission standards is potentially losing grant money, § 77-32-806(2), or potentially being ineligible for grant money, § 77-32-807(5).
68. As of the date of this Complaint, the UID Commission has not commenced collecting data pertaining to the Utah indigent defense system or fulfilled any of the other statutory directives given to the UID Commission.
69. Upon information and belief, the collection of data and auditing of public defender performance is months or years away from completion. Also upon information and belief, the UID Commission is months or years away from issuing any advisory guidelines about indigent defense provision for counties or municipalities.
70. In the meantime, Plaintiffs and the class members continue to face actual and constructive denials of their constitutional rights by Defendants. The actions of the Utah Legislature are totally inadequate to address the problems.

8928562_1

18

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 19 of 62

71. Defendants’ present refusal to monitor the indigent defense systems in any county

or municipality constitutes a willful disregard of the State of Utah’s constitutional obligations.

Defendants’ delegation of their constitutional duties to counties and municipalities does not

relieve them of their constitutional duties.

72. Likewise, the public defenders contracted by the counties and municipalities are

not to blame for the systemic problems they and their clients face every day as a result

Defendants’ complete failure to fund or oversee indigent defense.

73. The fact that Defendants cannot ascertain the status of indigent criminal defense is

not a viable defense to the claims brought before this Court. The ultimate responsibility lies with

the Defendants, not the counties and municipalities.

74. Furthermore, Defendant Utah AG has the statutory authority to require the district

and county attorneys to report on the conditions of the indigent criminal defense system, § 67-5-

1(6), UTAH CODE ANN., but has failed to request or obtain such reports.

B. Defendants’ Knowledge of Constitutional Deficiencies 75. Although Defendants have attempted to keep themselves ignorant of the operation

of criminal justice in Utah state courts by failing to supervise the state public defender system,

the Defendants have known about the systemic deficiencies for many years.

76. First, it has been a continuing, conscious choice by Defendants to neither fund nor

oversee the system at all. Defendants have known for years that Utah is nearly alone in refusing

to provide any state resources of any kind to assist the counties and municipalities in providing

this constitutionally mandated service.

77. In 2011, the American Civil Liberties Union of Utah published “Failing Gideon –

Utah’s Flawed County-by-County Public Defender System” (“Failing Gideon”).

8928562_1

19

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 20 of 62

78. A second investigative report was published in 2015 by the Study Committee on the Representation of Indigent Criminal Defendants in Trial Court (the “Study Committee”). The Study Committee was formed in 2011 and is part of the Utah Judicial Council which is the policy-making body for the judicial branch as authorized by the Utah State Constitution, UTAH CODE ANN. § 78A-2-104(4). The Utah Judicial Council is responsible for the promulgation of uniform rules and standards to ensure the proper administration of the courts in Utah, as required by Article VIII, § 12 of the Utah Constitution.
79. The Study Committee was asked “to assess the provision of indigent criminal defense services at the trial level in Utah courts and to identify any concerns and make appropriate recommendations for improvement” (https://www.utcourts.gov/knowcts/adm/).
80. The Study Committee engaged the Sixth Amendment Center (a non-profit Massachusetts entity) to perform a study of Utah’s indigent defense systems. In October, 2015, the Sixth Amendment Center published its 6AC Report. Simultaneously, the Study Committee published its own report (“Study Committee Report”).
81. The Study Committee Report cited three major structural issues affecting indigent criminal defense:
A. The lack of State oversight of the county and municipal indigent defense systems;
B. Contracting “conventions,” such as all-inclusive, flat-fee contracts, which create systemic disincentives pitting an attorney’s financial interests against the best interest of a client; and

8928562_1

20

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 21 of 62

C. Justice courts in which high volume caseloads and lack of uniformity

compromise constitutional requirements for adequate defense of indigent defendants.

82. The 6AC Report is subdivided into two categories: (1) actual denial of counsel;

and (2) constructive denial of counsel.

83. With respect to the actual denial of counsel, the 6AC Report cited, inter alia; (1)

failure to appoint counsel at the early critical stages of a criminal prosecution; (2) accepting a

waiver of the right to counsel without a colloquy between judge and defendant to ascertain if the

waiver was knowingly, voluntarily and intelligently made; (3) pleas accepted without counsel;

and (4) interference of prosecutors and judges in plea negotiation with respect to persons

unrepresented by counsel.

84. The 6AC Report focused extensively on the constructive denial of counsel to

indigent persons, including: (1) the lack of accountability for indigent defense on the part of

Defendant State of Utah, the counties and municipalities; (2) the structure of indigent defense,

particularly in Justice Courts; (3) the role of county prosecutors in the selection, evaluation and

retention of public defenders; (4) financial conflicts created through flat-fee contracting and

funding of investigative and trial related expenses; and (5) workloads of public defenders,

including time for contesting the prosecution’s case.

85. The deficiencies of the Utah indigent defense system have persisted for many

years without any substantive efforts by Defendants to redress those constitutional defects.

C. Standards for Constitutionally Sufficient Defense 86. There is a national consensus and strong legal precedent on what constitutes

constitutionally adequate indigent defense—both at the systemic level and at the level of

individual defense providers.

8928562_1

21

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 22 of 62

87. In United States v. Cronic, 466 U.S. 648, 659 (1984), the United States Supreme Court recognized that the Sixth Amendment is violated when a criminal defendant is constructively denied counsel.
88. Constructive denial of counsel occurs when, among other things, an indigent defendant is denied assistance of counsel at a critical stage of the proceedings, when defense counsel utterly fails to investigate the underlying facts of a case, or when defense counsel fails to subject the prosecution’s case to meaningful adversarial testing, or represents conflicting interests.
89. The American Bar Association (“ABA”) approved the Ten Principles of a Public Defense Delivery System (the “Ten Principles”), which establish the fundamental criteria necessary—at the systemic level—to provide effective, efficient, and conflict-free legal representation to its clients. The Ten Principles reflect a national consensus regarding the prerequisites for constitutionally adequate indigent defense reached by representatives from each of the fifty states, the civil bar, and all segments of the criminal justice system—including judges, prosecutors, private defense counsel, public defenders, court personnel, and academics active in criminal justice.
90. The Ten Principles state that to have constitutionally adequate indigent defense: (a) defense counsel should be an equal partner in the justice system, with the same resources as prosecuting attorneys; (b) only qualified counsel should represent indigent defendants; (c) clients should be appropriately screened for eligibility for public defense services; (d) defense counsel should receive the training necessary to perform competently; (e) there should be attorney performance standards and adequate supervision and oversight to ensure compliance with those

8928562_1

22

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 23 of 62
standards; (f) workloads should be monitored; and (g) indigent defense systems should be independent from undue political influence, to ensure that counsel are free to make decisions necessary to meaningfully advocate for their clients.
91. The ABA and the National Legal Aid and Defender Association (“NLADA”) have also promulgated performance standards for constitutionally adequate indigent defense counsel with respect to individual providers. Those standards dictate that indigent defense counsel: (a) have adequate knowledge of the relevant areas of law; (b) act with reasonable diligence and promptness, avoiding unnecessary delay in the disposition of cases; (c) provide representation at every critical stage of their client’s proceedings; (d) conduct reasonable factual and legal pre-trial investigations into the charges against their clients, pursue available formal and informal discovery procedures and use appropriate and necessary experts; and (e) consult with their clients in order to elicit relevant information about the case, to inform clients of their rights, and to enable clients to make informed decisions about the direction of their cases.
92. Attached as Appendix 1 to the Study Committee Report is a white paper authored by Hon. Derek P. Pullan of the Fourth Judicial District Court entitled “THE CONSTITUTIONAL RIGHT TO COUNSEL – EVALUATING THE HEALTH OF UTAH’S INDIGENT DEFENSE SYSTEM” (“Pullan Report”). Judge Pullan articulated seven factors to be used in assessing the health of Utah’s public defense system:
A. Independent representation, which includes the exclusion of county attorneys and judges from hiring and supervising public defenders;

8928562_1

23

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 24 of 62

B. Representation without conflicts of interest, which encompasses systemic conflicts of interest arising from the contract terms of engagement, the manner of selection, funding and payment of defense counsel;
C. Representation without interference, such as not providing a private place for attorney-client confidential communications;
D. Representation at all critical stages, which includes custodial interrogations, lineups, initial appearances, bail hearings, preliminary examination, arraignment, plea bargaining, sentencing and the first appeal of right;
E. Representation that ensures meaningful adversarial testing of the State’s evidence, which includes qualified counsel (ability, training and experience), access to defense resources (e.g., investigators, expert witnesses and scientific or medical testing) and reasonable caseload standards;
F. Fair compensation and proper incentives; and G. Case specific and systemic quality control, including minimum performance standards and collection of meaningful data. 93. The State of Utah passed the Indigent Defense Act of 1965 (the “Act”). The Act has been amended and is currently set forth in §§ 77-32-101 et seq., UTAH CODE ANN. The legal defense standards for Utah’s public defender are defined in § 77-32-201(8), UTAH CODE ANN.: A. Provide defense counsel for each indigent who faces the potential deprivation of the indigent’s liberty; B. Afford timely representation by defense counsel; C. Provide the defense resources necessary for a complete defense;

8928562_1

24

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 25 of 62

D. Assure undivided loyalty of defense counsel to the client; E. Provide a first appeal of right; and F. Prosecute other remedies before or after a conviction, considered by defense counsel to be in the interest of justice except for other and subsequent discretionary appeals or discretionary writ proceedings. 94. Defendants have failed to meet or maintain the statutory mandates of the Act as further described below. Furthermore, Defendants have failed to fulfill the constitutional standards articulated in the Ten Principles, by the NLADA and in the Pullan Report. 95. Among other things, Defendants have allowed a system to develop in which counties and municipalities are not providing timely and competent legal counsel, are denying public defenders investigatory resources necessary for a complete defense, and creating conditions making it practically impossible for public counsel to provide undivided loyalty to their clients. 96. The substandard performance of the indigent criminal defense system is on-going and continuous, thereby damaging the constitutional rights of Plaintiffs, and those similarly situated. II. THE CONSTITUTIONAL DEFICIENCIES OF THE UTAH INDIGENT DEFENSE SYSTEM ARE OPEN AND NOTORIOUS A. Defendants Exercise No Administrative Oversight Over the Indigent Defense System. 97. Defendants are not taking any steps to ensure that their agents are living up to the minimum constitutional and statutory requirements of indigent defense. 98. Notwithstanding the generalized responsibilities Defendant Utah AG has over Defendant’s provision of indigent defense, Utah presently has no statewide entity or official with

8928562_1

25

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 26 of 62

the unambiguous mandate to ensure Defendants’ compliance with their constitutional obligations on an ongoing basis.
99. Utah has no official or entity empowered to take any binding, remedial actions to fix the counties’ and municipalities’ failure to comply.
100. Defendants do not supervise the provision of indigent defense services in misdemeanor and felony criminal actions in any of Utah’s twenty-nine counties.
101. Defendants have not implemented any safeguards to ensure that counties comply with the Act and with national performance standards.
102. National standards require ongoing training, professional development, and continuing legal education. Indigent defense counsel must acquire and maintain lawyering skills, as well as keep current with new developments in the complex and rapidly changing field of criminal law.
103. Defendants do not provide resources for attorney training, nor require attorney performance evaluations. Defendants do not oversee workload limits. As a result, only two of Utah’s twenty-nine counties (i.e., Salt Lake and Utah counties) have implemented a formal training program for indigent defense counsel at the insistence and direction of the legal defender associations in those two counties.
104. Most counties rely on private low-bid contracts without any investigation into the qualifications of the applicants. Lacking formal orientation, newly hired attorneys have no opportunity to acquire and maintain the skills and legal knowledge necessary to put the prosecution’s case to the crucible of adversarial testing. Counties do not provide or fund training

8928562_1

26

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 27 of 62
programs for contracted attorneys to hone their skills and remain knowledgeable of significant changes in the law.
105. The very recently formed UIC Commission, by its nature, has no power at all to take any binding action to bring any county or municipality failing to provide adequate defense into compliance. The UIC Commission is advisory in nature, and counties and municipalities have no obligation to follow any of its guidelines.
106. By contrast, Defendants, through the Utah Prosecution Council (“UPC”) provide numerous opportunities for ongoing education and training for county prosecutors. Counties often pay for prosecutors’ training and memberships in statewide associations for prosecutors and other professional associations.
107. National standards further mandate that indigent defense programs subject their attorneys to systematic supervision and evaluation based on publicized practice standards. Utah has no statewide supervision or evaluation policies. Defendants keep no records, documents, files, or written protocol of any kind to monitor the indigent defense system. Defendants have no system in place to ensure that counties set practice standards or methods of evaluation, supervision, and monitoring to ensure the adequate assistance of indigent defense counsel.
108. The lack of basic supervision results in inevitably hampering the quality of representation across the state. While every county and municipality suffers from its own systemic issues, there are some counties and municipalities where there are more and more acute problems.

8928562_1

27

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 28 of 62

109. The lack of supervision also results in counties attempting to save money by relying on overworked, underpaid, inexperienced, untrained, understaffed and often conflicted counsel.
110. Most Utah counties award indigent defense contracts based on the lowest cost possible, without regard to constitutional adequacy. Under such contracts, defenders are left to police their own caseloads and report when they become too burdensome. The potential for recriminations and reprisals (e.g., terminating or not renewing a public defender contract) if public defenders complain about excessive caseloads militates against public defenders making any objection to caseloads and lack of resources.
B. Defendants Do Not Consistently Provide Legal Counsel to Indigent Defendants at All Critical Stages of the Criminal Prosecution.
111. The constructive denial of legal counsel to indigent defendants commences at the hiring of public defenders. From stem to stern, the hiring and supervision of public defenders is defective ab initio.
112. With limited exceptions, Utah counties have coalesced around two models. In Salt Lake and Utah counties, the county commissioners have engaged by contract a single, notfor-profit provider of legal defense to indigents.
113. Outside of those two counties, and in every municipality, the counties and municipalities contract with private attorneys to provide services in either the District and Justice courts, or both.
114. The counties’ and municipalities’ selection of private attorneys for indigent defense contracts is fraught with inherent defects. The governmental bodies awarding contracts to the public defenders consist of elected officials who are usually not law trained. They do not

8928562_1

28

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 29 of 62
have backgrounds in legal matters and are not acquainted with the skills and experience level the public defenders should have.
115. Moreover, because the cost of the indigent defense system is borne by each of the separate counties and municipalities’ and their general tax funds, the officials are motivated to keep the costs as low as possible without regard to the constitutional sufficiency of the defense system.
116. Because of this lack of law training, the officials often turn to the county or city attorneys for advice and guidance in selecting the private attorneys to be hired for indigent defense. In effect, the prosecutors are involved in hiring their opposing counsel, which constitutes a self-evident conflict of interest.
117. The contracts used by nearly all counties and municipalities are annual, flat-fee arrangements. Under such contracts, the private attorney and the county or municipality negotiate a set price for all services on a yearly basis. Such contracts make no accommodation for an increase in the number of cases assigned to the public defender or the complexity of any particular case.
118. In most counties, there is no prohibition against public defenders having private clients while fulfilling the flat-fee annual contract with the county. In those instances, the public defender is conflicted by the duty to the private clients (who usually will pay more money on an hourly or project basis than the public defender contract) and the contractual duty to represent indigent defendants.

8928562_1

29

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 30 of 62

119. Under the flat-fee annual contract, the public defender will not be paid any more or less for the number or complexity of cases; whereas his/her annual income can be increased by dedicating more time and energy into private practice.
120. Because of the structure of the contractual commitment, the average public defender is economically motivated to do as little as possible regarding the indigent defendants and to increase his/her productivity with respect to private clients. From the inception of the contract, the contracts create a conflict, which compromises the defense of people unable to pay for an attorney.
121. By way of illustration, not limitation, attached hereto as Exhibit 1 is a copy of the Request for Qualification for Kane County Public Defender Services (“Kane County RFQ”) to which was attached the Public Defender Agreement––Trial Services––March 1, 2016 – February 28, 2018 (“Kane County PD Contract”). Responses to the Kane County RFQ were due on March 2, 2016. The Kane County PD Contract embodies the same systemic problems that plague all flat-rate annual contracts. The annual flat-rate is $60,844.10. See Scope of Work in Kane County RFQ and ¶ 5.1 of the Kane County PD Contract.
122. Before the Kane County public defender may use an expert witness, the trial court must approve the expert witness fees––a requirement that the county prosecutors do not have to comply with. This requirement places a burden on the public defenders, because a motion to approve the payment of expert witnesses fees will often require the disclosure of discovery and trial strategy and because it places key decisions about what is needed for a proper defense in the judge’s hands and out of the defense’s hands. Furthermore, the public defender must “use his best efforts to minimize the cost and expenses.” Kane County PD Contract at ¶ 3.9.

8928562_1

30

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 31 of 62
Extraordinary unforeseen expenses may be requested from the non-lawyer county commissioners. Kane County PD Contract at ¶ 5.3. Private practice is not prohibited. Kane County PD Contract at ¶ 7.9.
123. The Kane County PD Contract demonstrates that various Utah counties continue to use contracts with built-in conflicts.
124. Beginning in October 2015, legal counsel for Plaintiffs issued a series of document requests to all Utah county commissions and District Courts under the auspices of the Government Records Access and Management Act, §§ 63G-2-101, et seq., UTAH CODE ANN. (“GRAMA”).
125. All county Commissions were asked to produce copies of records pertaining to the indigent defense system in each county, including copies of any public defender contracts and minutes of any county commission meetings pertaining to indigent defense.
126. Like the Kane County PD Contract, county commissions have used the flat-rate annual contract format to provide indigent legal services. In addition to the intrinsic flaws contained in the Kane County PD Contract, other flat-rate contracts require that the public defender pay for expert witness fees, testing and investigative research out of their own pocket, with no additional monies from the county.
127. Stunningly, certain counties require public defenders to pay for substitute counsel in the event the public defender is conflicted out of representation, which dampers the willingness of public defenders to acknowledge conflicts.

8928562_1

31

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 32 of 62

128. County commission minutes and related documents produced in response to the GRAMA requests do not show any public defenders having requested or being granted additional monies for extraordinary expenses by the county commissioners.
129. In the cases where the public defender must pay for expert witness fees, testing and investigations, there are no produced documents showing expenditures in excess of the yearly flat-rate.
130. Defendants have provided no directives, oversight or supervision with respect to the types of contracts utilized by Utah counties with public defenders. Defendants have allowed such contracts to continue and to proliferate. Defendants have no means of requiring that public defender contracts or other arrangements conform with the Utah Constitution, statutes and case law, including the recently enacted UID Commission.
131. Failure to govern the indigent defense systems of the Utah counties, particularly the way in which public defenders are chosen and compensated, constitutes a breach of Defendants’ constitutional responsibilities to indigent criminal defendants and a violation of the federal and state constitutions, statutes and attendant case law. Plaintiffs suffer harm as public defenders routinely represent conflicting interests. [Need to spell out a little more]
132. Over and beyond the actual contracts, Defendants have failed to regulate and supervise the selection of public defenders. Defendants provide no mechanism to ensure indigent defense providers are qualified for the job. Most contracts have no written job qualifications other than a prerequisite in the contract that counsel be members of the Utah State Bar Association in good standing.

8928562_1

32

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 33 of 62

133. Given the lack of hiring criteria, there is no way of telling whether indigent defense counsel have the requisite ability, training, experience and adequate knowledge of relevant areas of the law to match the complexity of their caseloads.
134. Most counties rely on private low-bid contracts without any investigation into the qualifications of the applicants. Lacking formal orientation, newly hired attorneys often have no opportunity to acquire and maintain the skills and legal knowledge necessary to put the prosecution’s case to the meaningful crucible of adversarial testing.
135. The collateral effects of a guilty plea or conviction are complex and intricate in today’s interconnected legal system. For example, a guilty plea or verdict may have adverse consequences on the indigent defendant’s eligibility for public housing, and if a landlord conducts a background check, private housing. 42 U.S.C. § 13661(c) gives public housing authorities the power to deny people Section 8 (42 U.S.C. § 1437(f)) rental housing assistance based on criminal activity. Criminal convictions also have effects on immigration status, student loan eligibility, and many other issues.
136. Effective criminal representation means being able to advise clients about these collateral effects. In other states, there is a state requirement for public defenders to be aware of such consequences. For example, in New Mexico, public defenders are expected to know what the consequences of a guilty plea might be on the immigration status of an indigent defendant.
137. On the other hand, Utah has no such requirement for its public defenders. In Utah, for example, there is no means of determining if the public defenders are knowledgeable about the intersection of criminal and immigration law. See 8 U.S.C. § 1227(a)(2) (crimes of “moral turpitude” or involving controlled substances shall serve as a basis for deportation of

8928562_1

33

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 34 of 62

aliens) and the Criminal Alien Program (CAP) which provides the US. Immigration and Customs Enforcement (ICE) agency support in the biometric and biographic identification, arrest, and removal of priority aliens who are incarcerated with federal, state and local prisons and jails.
138. As the parties ultimately responsible for the indigent defense systems, Defendants have abnegated their responsibilities by not instituting standards by which public defenders are hired and perform on the job.
139. With the exception of Salt Lake County and Utah County, which cover training expenses, counties do not pay for any training and continuing legal education for public defenders and Defendants do not provide any funding to cover such costs. Indigent defense counsel must pay for all training and continuing legal education (“CLE”) out of pocket. Defendants take no steps to ensure indigent defense counsel actually receive applicable training and ongoing legal education.
140. By contrast, several counties directly fund training for prosecutors, and pay for memberships in professional associations such as the UPC and the Statewide Association of Prosecutors, which provide training and continuing legal education.
141. Defendants contribute nothing to CLE for the attorneys representing indigent defendants. Although the Utah State Bar requires continuing legal education of all licensed attorneys, public defenders can satisfy these requirements by pursuing instruction in unrelated practice areas. There is no requirement that public defenders keep abreast of developments in criminal law or report their CLE to an authority charged with overseeing performance.
C. Caseloads and Availability of Public Defenders

8928562_1

34

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 35 of 62

142. Defendants do not monitor, limit or otherwise provide supervision and oversight of public defense counsel workloads. Defendant’s failure to provide supervision and guidance has resulted in unmanageably large workloads for indigent defense counsel.
143. Workload affects the productivity and effectiveness of indigent defense counsel more than any other variable. The National Advisory Commission on Criminal Justice Standards and Goals created by the United States Department of Justice stated in 1973 that a single, fulltime indigent defense counsel can reasonably be expected to handle no more than 150 felonies per year; or 400 misdemeanors per year; or 200 juvenile delinquency cases per year. The national standards published in 1973 may now be too high in light of the complexity of criminal defense and the need for scientific testing (e.g., DNA) and detailed investigations, which did not exist in 1973 but which are standard procedures in 2016.
144. As alleged above, Defendants do not collect meaningful data regarding the indigent defense system and the caseloads placed on public defenders. Defendants cannot determine the effectiveness of indigent defense counsel if Defendants do not know who handles public defense cases from one county and municipality to the next.
145. Quite simply, Defendants do not know who the public defenders are, much less what the caseload is for a particular public defender. This is particularly true because defenders sometimes hold contracts for various types of services within one county or city and/or with various counties and cities and/or have private clients in addition to their contract or contracts.
146. Defendants have not set workload limits and do not require the counties to do so. A review of the sparse data available reveals that in many counties, indigent defense counsel

8928562_1

35

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 36 of 62

maintain felony caseloads as high as 250 to 300 cases, almost twice the ABA recommended

maximum of 150, not counting any juvenile representation they may undertake.

147. Many attorneys carry private caseloads in addition to the cases assigned by the

county in order to supplement their income.

148. Because of the prevalence in Utah of public defenders taking on multiple

contracts for multiple services with various counties and municipalities in addition to private

work, public defenders are overburdened even in counties where there the amount of criminal

cases that public defender handles under one contract may be modest.

149. Caseloads for indigent defense are often so high that attorneys spend no more

than a few minutes with a client prior to court proceedings. Because of the excessive caseloads,

public defenders are forced into the “meet and plead” syndrome where they meet their indigent

client a few minutes before entry of a plea agreement. The excessive caseloads impede counsel’s

ability to provide constitutionally and statutorily adequate legal representation. In some isolated

rural counties, caseloads may not be as pressing an issue as the other consequences of a defective

indigent defense system.

D. Funding and Resources for Indigent Defense 150. Each county and municipality is responsible for funding its own indigent defense

services. Defendants do not provide any funding whatsoever for indigent defense.

151. Utah ranks 48th out of the 50 states in per capita spending for indigent

defendants, spending $5.22 (the national average is $11.86), with some counties spending as

little as $1.87 per person per year.

152. In contrast to the paltry sums spent on indigent defense, Defendants provide

county prosecutors with myriad resources, which increases the disparity between prosecutors and

8928562_1

36

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 37 of 62

defenders and decreases the defenders’ ability to subject the prosecutor’s case to the crucible of adversarial testing. For example, the state-funded UPC, which focuses on providing legal training to prosecutors, has a substantial annual budget. The Utah Prosecutorial Assistants Association, which received $12,000 from the UPC, provides prosecutorial assistants with legal training. Additionally, the Statewide Association of Prosecutors, funded by dues paid by counties, advances legislation to benefit prosecutors. Finally, because prosecutors are county employees, they receive state benefits, including health insurance and retirement plans, for both them and their staff.
153. By contrast, public defenders must hire staff, pay for overhead, and cover the costs of benefits on their own.
154. Public defense contracts awarded in most counties do not provide additional funds to hire private investigators or experts. Rather, public defenders must cover the cost of such investigations out of their own funds or make a special request for additional funding from the county or municipality. The practical reality is that public defenders rarely hire investigators.
155. In contrast, prosecutors have immediate access to the State of Utah Crime Laboratory and the various services it offers, including scientific consulting, law enforcement training, crime scene response, laboratory testing services,1 and courtroom testimony. The Bureau of Forensic Services is located within the Utah Department of Public Safety. None of those services, however, are freely available to public defenders and their clients.

1 Laboratory testing services offered to prosecutors consist of biology screening, DNA, combined DNA index system input/management, controlled substances (including suspected clandestine labs), fire debris, paint, general trace and unknown substances, latent prints, footwear/tire track, automated fingerprint identification system, bloodstain pattern analysis, firearms, toolmarks, serial number restoration, distance determination and shooting scene reconstruction. See forensicservices.utah.gov.

8928562_1

37

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 38 of 62

156. In many counties, indigent defense attorneys must appeal to county officials (who are usually not law trained) to have investigators, experts, and other expenses approved and paid. In cases where the county commissioners must approve extraordinary expenses requested by the public defender before such expenditures can be made, the county commissioners’ lack of criminal law expertise prevents them from understanding the necessity of such expenses. For example, a county commissioner without legal training cannot be expected to know when DNA testing is an absolute necessity for the adequate defense of a particular indigent defendant.
157. Requiring public defenders to justify such expenses to non-lawyers is another deterrent to adequate, constitutional defense. As a result, public defenders lack real independence from prosecutorial and judicial influence, which is critical to our adversarial system.
158. The lack of funding and oversight on the part of Defendants has also resulted in counties and municipalities failing to provide private spaces in the courthouses for public defenders to meet with their clients.
159. There are very few court facilities that have dedicated spaces in which public defenders can have confidential conversations with their attorneys. Most indigent defendants first meet and then converse with their assigned public defender in the courtroom or the hallways outside the courtrooms. There is no physical barrier or door protecting the attorney-client privileged discussions from other people in attendance.
160. For in-custody indigent defendants, conversations with the assigned public defenders often take place in group holding cells where the defendants are not assured that their statements to counsel will not be overhead by other prisoners and jail personnel.

8928562_1

38

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 39 of 62

161. As a result, the confidence and trust of the indigent defendants in their public defenders are severely eroded by lack of physical space.
162. In Utah, indigent defendants may be ordered to repay the county “costs” if convicted of a crime, § 77-32a-1, UTAH CODE ANN. Costs are defined by statute to include “attorney fees of counsel assigned to represent the defendant.” § 77-32-2, UTAH CODE ANN.
163. In contrast to the Miranda advisory that an attorney will be appointed if the accused cannot afford an attorney, indigent defendants are not regularly advised that a guilty plea may entail more than just a fine.
164. If recoupment is ordered and the defendant does not pay the attorney fees, the county or municipal court may move for an order to show cause why the indigent defendant’s default should not be treated as contempt of court and may “order him committed until the costs or a specified part thereof, are paid.” UTAH CODE ANN. § 77-32a-8.
165. As a result, indigent defendants are denied public defender services because they must ultimately pay for these services if they are convicted. Recoupment of fees has a chilling effect on the right to counsel.
166. Counties usually charge indigent defendants a flat fee for the public defense services they receive, without regard to the length or complexity of their cases, the quality of the defense services, or their ability to pay without substantial hardship.
167. Typically, indigent defendants are charged $500 for a felony conviction and $250 for a misdemeanor conviction. These flat fees apply even if the public defender in question did not incur that amount in costs or attorney time.

8928562_1

39

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 40 of 62

168. County and municipal courts make no attempt to ascertain whether indigent clients can pay the recoupment fees without substantial hardship and routinely assess the fees despite the fact that these indigent clients have already filled out forms with their financial information to indicate they qualify for free assistance of counsel.
169. Many of the counties’ contracts with public defenders require the attorney to provide information to the county prosecutors as to their clients’ ability to pay the recoupment costs. This requirement is contrary to the UTAH RULES OF PROFESSIONAL CONDUCT which demand that the attorney’s allegiance be only to the client.
E. Disparity in Compensation 170. The comparison of annual contract fees paid to public defenders with the salaries of prosecutors reveals a great disparity between the compensation paid to public defenders that paid to prosecutors. 171. A side-by-side comparison underreports the true disparity because counties also pay for the prosecution team’s retirement, health and dental insurance, office expenses and supplies, training and travel, service fees, fleet vehicles, severance benefits, worker’s compensation insurance, phone charges, equipment and computer maintenance, risk management and malpractice insurance, legal subscriptions, professional association dues, disability insurance, car allowances and cell phones. 172. Contract defenders receive no such support or benefits from Defendants. As a result, many public defenders are forced to supplement their incomes through private practices and/or additional indigent defense contracts in surrounding counties. F. Harm to Indigent Defendants

8928562_1

40

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 41 of 62

173. The lack of resources, excessive caseloads, and latent conflicts contained in the county public defender contracts are some of the root causes of public defenders’ inability to provide adequate time for their clients.
174. As a result of crushing workloads, public defenders do not have sufficient time to meet and confer with their clients throughout the critical stages of the criminal proceedings.
175. When assigning a public defender, judges or court personnel routinely inform public defenders of the name and contact information for the attorney, sometimes with the admonition that contacting the public defender will be difficult. In most instances, the public defender does not meet or converse with the defendant until a court hearing.
176. Without adequate client contact, defense counsel cannot and do not adequately argue against pretrial incarceration or the imposition of bail.
177. There is no time to ascertain what contacts the defendant has with the community, job status, or family commitment, and therefore the public defender does not have the necessary information to seek no bail, reduced bail, or prevent pre-trial incarceration.
178. Because their counsel fail to advocate effectively against detention or the imposition of bail, people are routinely detained unnecessarily or for prolonged periods of time before trial.
179. Unless Defendants take affirmative steps to ensure that public defenders have manageable caseloads, indigent defendants will continue to have limited or no contact with their legal counsel at critical stages of the proceedings.
180. Also as a result of overly burdensome caseloads created and sustained by Defendants’ actions, many public defenders do not conduct appropriate discovery or make

8928562_1

41

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 42 of 62

appropriate pre-trial motions. Likewise, many public defenders rarely make discovery motions or challenge the sufficiency of the documents they are permitted to review. Motions to suppress evidence in Utah Justice Courts are virtually unheard of.
181. Because of the Defendants’ failure to assemble pertinent data on the indigent defense system in Utah, it is impracticable to determine on a county-wide basis the number of discovery motions, motion to suppress, and actual trials conducted by public defenders. Sampling of dockets in various counties reveals very few instances where there is a record of public defenders contesting the merits of the prosecution’s case.
182. Many members of the Plaintiff class have been detained unnecessarily or for prolonged periods of time before trial. Many public defenders rarely seek reductions in bail, even for clients who pose no flight risk. Many times indigent defense counsel fails to appear at court proceedings, resulting in frequent rescheduling and postponements.
183. Many class members are compelled to take inappropriate pleas, often to the highest charge, even when they have meritorious defenses.
184. Many public defenders routinely encourage their clients to plead guilty without a proper factual basis for guilt, without even a cursory investigation into potentially meritorious defenses, in the absence of any physical evidence, and without the presence of a complaining witness.
185. Fearful that their attorneys will not adequately prepare for trial, Plaintiffs forgo their right to trial, pleading guilty to crimes they did not commit or to charges more severe than the facts of their cases warrant.

8928562_1

42

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 43 of 62

186. Many public defenders in Utah routinely fail to review presentence reports with clients prior to the day of sentencing. Likewise, many public defenders do not conduct independent mitigation investigations or pre-sentence reports for their clients, leaving the state’s report as the primary document relied upon by the court in sentencing.
187. These failures are to be expected because public defenders have so little time and resources (e.g., no investigators) to marshal an adequate defense.
188. The hallmarks of a vigorous defense on behalf of indigent criminal defendants are missing, which leads to the conclusion that the Utah system of indigent defense has failed to put the prosecution to the “crucible of meaningful adversarial testing.” The net effect of inadequate resources, lack of oversight and excessive caseloads is that indigent defense counsel more routinely expend their energy pressuring defendants to accept the prosecution’s plea offers.
189. Plaintiffs and members of the plaintiff class have suffered irreparable harm or are at imminent risk of suffering such harm because Defendants have failed to supervise and monitor the indigent defense system for which they are responsible. There is no adequate remedy at law to address these deficiencies or the consequential deprivation of adequate counsel.
190. As a direct result of the Defendants’ lack of supervision and oversight, individual counties and municipalities in the State of Utah have failed to supervise, monitor and adequately fund the indigent criminal defense system within the individual counties and municipalities. Because of the lack of oversight and accountability on the part of Defendants and the counties, public defenders are not selected and engaged in a consistent manner with the best interests of the indigent defendants in mind (e.g., flat-fee annual contracts), are not adequately trained during the course of their engagement, are not given performance evaluations, are overworked,

8928562_1

43

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 44 of 62

understaffed, and without sufficient time to investigate the charges, are unable to provide legal representation at all critical stages of the proceedings, unable to contest pre-trial bail hearings, cannot provide independent legal advice with respect to plea arrangements, unable to contest the charges leveled against their client, are prevented from trying cases with adequate investigation and discovery, lack sufficient time to provide legal counsel necessary to evaluate criminal charges and plea arrangements, cannot provide indigent defendants with alternative sentencing options, and otherwise prevented from fulfilling the constitutional defense of indigent defendants.
191. As a direct result of the unconstitutional indigent criminal defense system which Defendants have allowed to persist in the State of Utah, Plaintiffs and class members are harmed in a multitude of ways every day, including: spending more time in pre-trial detention; being subject to excessive bail; accepting plea agreements about which they are ill-informed and have no understanding of collateral effects (e.g., immigration); agreeing to plea agreements that are excessively punitive (increased fines and recoupment of attorney fees) and entail longer sentences; being unaware of sentencing alternatives; and generally being denied the constitutionally mandated procedures that ensure a fair and just defense to criminal charges. The deprivation of constitutional rights and the resulting harm visited upon Plaintiffs and class members continue unabated as of the date of this Complaint.
192. Each of the named Plaintiffs in this action have been directly affected by the problem created by Defendants.
193. Consistent with the experience of indigent defendants statewide, named Plaintiffs have all had little or no time to meet with their attorneys at at all, much less at key junctures in

8928562_1

44

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 45 of 62

their cases. Remick spoke to his attorney once, at a hearing, in a nearly two month period. As of

June 27, Garner has spoken to his attorney for five minutes, during which his attorney did not

ask him for the facts. Lloyd has spoken to his attorney once, and after multiple attempts, he has

stopped trying to even attempt to do so again. Murdzak had not met with counsel at the time of

his arraignment or before the next hearing. As of June 27, Ricks had not met with his attorney

yet, despite having his bail revoked. Timms did not met with his counsel prior to the

arraignment.

194. This lack of meaningful time to meet means Plaintiffs are facing incarceration

without a meaningful opportunity to understand the process generally, much less assist their

attorneys in an effective defense.

195. Also like many other indigent defendants who are being incarcerated pre-trial,

Remick and Lloyd met with their public defenders in a non-private setting with other detainees

and/or inmates, compromising their communications and effectiveness.

196. Some Plaintffs, like Ricks and Timms, have been detained in jail for over a

month, increasing the pressure to take a deal that is in the long term not to their advantage but

has the potential immediate advantage of getting out of jail and being able to go back to work.

197. Named Plaintiffs and other members of the proposed class are suffering these

harms caused by the Defendants on a daily basis.

FIRST CAUSE OF ACTION
SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND 42 U.S.C. § 1983 (Right to Counsel)

198. Plaintiffs re-allege and incorporate by reference all allegations from previous

paragraphs of this Complaint.

8928562_1

45

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 46 of 62

199. Defendants are obliged to provide resources to indigent defense counsel, so that they may offer constitutionally adequate defense services to Plaintiff Class members.
200. Defendants fail to provide sufficient supervisions and oversight to ensure constitutionally adequate counsel for Plaintiffs and class members. Instead, Defendants rely on individual counties to provide indigent defense services.
201. Defendants fail to provide adequate oversight to ensure constitutionally adequate defense services for indigent defendants charged of crimes in their jurisdiction.
202. As a result of Defendants’ failure to provide counties with adequate guidelines and resources to guarantee adequate defense, Utah’s indigent defense system is underfunded, poorly and unevenly administered, and does not provide mandated constitutional protections to many indigent defendants.
203. As a result of Utah’s deficient indigent defense system, indigent defense counsel in most counties are unable to provide constitutionally-adequate legal representation, and Plaintiffs are harmed.
204. Defendants’ failure to exercise the oversight needed for constitutionally adequate indigent defense during criminal proceedings violates Plaintiffs’ rights under the Sixth and Fourteenth Amendments to the United States Constitution, including, but not limited to, their right to effective assistance of counsel. This constitutional violation provides Plaintiffs with the right to obtain declaratory relief and attorney’s fees, pursuant to 42 U.S.C. § 1983.
SECOND CAUSE OF ACTION FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
AND 42 U.S.C. § 1983 (Due Process)

8928562_1

46

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 47 of 62

205. Plaintiffs re-allege and incorporate by reference all allegations from previous paragraphs of this Complaint.
206. Defendants are obliged to provide tools to indigent defense counsel so they may offer constitutionally adequate defense services to Plaintiffs and class members.
207. Defendants fail to provide adequate oversight to ensure constitutionally sufficient counsel for Plaintiffs and class members. Instead, Defendants rely on individual counties to provide indigent defense services.
208. Due to the lack of oversight and supervision on the part of Defendants, Utah counties fail to provide adequate funding and oversight to ensure constitutionally adequate defense services for indigent defendants charged with crimes in their jurisdiction.
209. As a result of Defendants’ failure to provide the counties with adequate guidelines and resources to guarantee adequate defense, Utah’s indigent defense system is underfunded, poorly and unevenly administered, and does not provide mandated constitutional protections to many indigent defendants.
210. As a result of Defendant’s deficient indigent defense system, indigent defense counsel in most counties are unable to provide constitutionally adequate legal representation, and Plaintiffs are harmed.
211. Defendants’ failure to exercise the oversight needed for constitutionally adequate indigent defense during criminal proceedings violates Plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution, including, but not limited to, their right to due process. This constitutional violation provides Plaintiffs with the right to obtain declaratory relief and attorney’s fees, pursuant to 42 U.S.C. § 1983.

8928562_1

47

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 48 of 62

THIRD CAUSE OF ACTION ART I, § 12 OF THE UTAH CONSTITUTION
(Right to Counsel) 212. Plaintiffs re-allege and incorporate by reference all allegations from previous paragraphs of this Complaint. 213. Defendants are obliged to provide resources to indigent defense counsel so they may offer constitutionally adequate defense services to Plaintiffs and class members. 214. Defendants fail to provide adequate oversight to ensure constitutionally sufficient counsel for Plaintiffs and class members. Instead, Defendants rely on individual counties to provide indigent defense services for indigent defendants charged of crimes in their jurisdiction. 215. Defendants fail to provide oversight to ensure constitutionally adequate defense services. As a result of Defendant’s failure to provide Utah counties with adequate guidelines and resources to guarantee adequate defense, Utah’s indigent defense system is underfunded, poorly and unevenly administered, and does not provide mandated constitutional protections to many indigent defendants. 216. Defendants’ failure to provide Plaintiffs and class members with adequate legal representation violates Plaintiffs’ and class members’ rights under Utah Const. Art. I, § 12, including, but not limited to, their rights to effective assistance of counsel. This constitutional violation provides Plaintiffs with the right to obtain declaratory relief and attorney’s fees, pursuant to 42 U.S.C. § 1983.
FOURTH CAUSE OF ACTION ART 1 § 7 OF THE UTAH CONSTITUTION
(Due Process)

8928562_1

48

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 49 of 62

217. Plaintiffs re-allege and incorporate by reference all allegations from previous paragraphs of this Complaint.
218. The State of Utah is obliged to provide resources to indigent defense counsel so they may offer constitutionally adequate defense services to Plaintiffs and class members.
219. Defendants fail to provide adequate oversight to ensure constitutionally adequate counsel for Plaintiffs and class members. Instead, Defendants rely on individual counties to provide indigent defense services.
220. Due to the lack of supervision and oversight on the part of Defendants, Utah counties fail to provide adequate funding and oversight to ensure constitutionally adequate defense services for indigent defendants charged of crimes in their jurisdiction.
221. As a result of Defendants’ failure to provide the counties with adequate guidelines and resources to guarantee adequate defense, Utah’s indigent defense system is underfunded, poorly and unevenly administered, and does not provide mandated constitutional protections to many indigent defendants.
222. As a result of Utah’s deficient indigent defense system, indigent defense counsel in most counties are unable to provide constitutionally adequate legal representation, and Plaintiffs are harmed.
223. Defendants’ failure to provide Plaintiffs and class members with adequate legal representation violates Plaintiffs’ and class members’ rights under Utah Const. Art. I, § 7, including, but not limited to, their rights to due process. This constitutional violation provides Plaintiffs with the right to obtain declaratory and injunctive relief and attorney’s fees, pursuant to 42 U.S.C. § 1983.

8928562_1

49

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 50 of 62

FIFTH CAUSE OF ACTION SECTION 77-32-301 UTAH CODE ANN. (Minimum Standards of Indigent Defense) 224. Plaintiffs re-allege and incorporate by reference all allegations from previous paragraphs of this Complaint. 225. The Utah Indigent Defense Act, § 77-32-301 UTAH CODE ANN., provides minimum standards for the defense of indigent defendants. The Act requires counties and municipalities to provide competent and timely legal counsel. This includes, among other things: the investigatory resources adequate for a good defense,2 undivided loyalty of the defense counsel to the client,3 and continuous representation by the appointed attorney throughout all stages of the prosecution.4 226. Defendants fail to provide adequate funding and oversight to ensure all indigent defendants timely receive competent counsel. 227. Defendants fail to provide adequate investigative resources for indigent defendants. 228. Defendants fail to provide undivided loyalty to their indigent clients by failing to recognize and address conflicts of interest. 229. Utah counties fail to provide uniform representation at all stages of the proceeding. Indigent defendants are often represented by more than one attorney, and are often left unrepresented during crucial stages of their prosecution.

2 Utah Code Ann. § 77 32 301 (3) 3 Utah Code Ann. § 77 32 301 (4) 4 Utah Code Ann. § 77 32 304 (1)(a)

8928562_1

50

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 51 of 62

230. Defendants’ failure to provide Plaintiffs and class members with adequate legal

representation violates Plaintiff’s and class members’ rights under § 77-32-301, UTAH CODE

ANN including, but not limited to, their rights to effective assistance of counsel.

231. Under Utah law, a private cause of action may exist for violations of a state law;

therefore, Plaintiffs and class members are entitled to declaratory relief.

RELIEF REQUESTED WHEREFORE, Plaintiffs and class members respectfully request that this Court:

1. Assert jurisdiction over this action;

2. Order that Plaintiffs may maintain this action as a class action pursuant to Rule 23

of the Utah Rules of Civil Procedure;

3. Declare unconstitutional and unlawful:

(a) Defendants’ violation of Plaintiffs’ rights, including their right to effective

assistance of counsel, under the Sixth and Fourteenth Amendments to the United States

Constitution and under 42 U.S.C. § 1983;

(b) Defendants’ violation of Plaintiffs’ and class members’ rights, including

their right to due process guaranteed by the Fourteenth Amendment to the United States

Constitution, and under 42 U.S.C. § 1983;

(c) Defendants’ violation of Plaintiffs’ rights, including their right to effective

assistance of counsel, under Article I, § 12 of the Utah Constitution;

(d) Defendants’ violation of Plaintiffs’ rights, including their right to due

process, under Article I, § 7 of the Utah Constitution;

(e) Defendants’ violation of Plaintiffs’ and class members’ rights under § 77-

32-301, UTAH CODE ANN. and the objectives of the Utah Indigent Defense Act; and

8928562_1

51

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 52 of 62
(f) Enjoin Defendants from their ongoing violations. 4. To the extent necessary, grant supplemental relief pursuant to § 78B-6-406 UTAH CODE ANN. and such other remedies as provided in §§ 78B-6-401, et seq. UTAH CODE ANN.; 5. Award to Plaintiffs and class members the reasonable costs and expenses incurred in the prosecution of this action, including attorneys’ fees and costs pursuant to 42 U.S.C. § 1983; and 6. Grant such other declaratory and equitable relief as the Court deems appropriate to protect Plaintiffs from further harm by Defendants. DATED this 1st day of July, 2016.
HOLLAND & HART LLP
/s/ John P. Harrington John P. Harrington Steven G. Jones AMERICAN CIVIL LIBERTIES UNION OF UTAH John Mejia Leah Farrell Attorneys for Plaintiffs and Class Members

8928562_1

52

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 53 of 62

KANE COUNTY
REQUEST FOR QUALIFICATIONS FOR KANE COUNTY PUBLIC DEFENDER SERVICES
Kane County Public Defender Contract (Justice, Juvenile, and District Courts) Kane County Conflict Public Defender Approved Attorney List and Kane County Public Defender Appellate Counsel Services
Introduction Kane County is soliciting qualified attorneys to apply for Kane County Public Defender Services. Kane County is soliciting qualifications for three areas: 1) Public Defender Contract for Justice, Juvenile and District Courts; 2) Attorneys to fill the Approved Attorney List for Conflict Public Defender Services when the chosen public defender has a conflict of interest; and 3) Appellate Public Defender Services for all first appeals of right. Applicants may apply for one or more of the three areas. The right is reserved by Kane County to reject any and all proposals.
Scope of Work Kane County Public Defender Contract: Kane County is accepting applications from qualified applicants to provide public defender services for two years in accordance with the terms of the attached Public Defender Agreement at the rate of $60,844.10 per year.
Kane County Conflict Public Defender Approved Attorney List: Kane County is accepting applications for individuals who desire to be listed and appointed as a conflict public defender on a case-by-case and rotational basis for cases where the Kane County Public Defender has a conflict of interest. Cases are paid at the rate of $750 per case for felony and class A misdemeanor cases and $500 per case for all other misdemeanor cases. Approved attorneys will be contacted by the Court Clerk when appointed on a case and shall comply with the substantive terms of representation as outlined in the attached Public Defender Agreement.
Kane County Appellate Counsel Contract: Kane County is accepting applications for individuals who desire to provide public defender services in all first appeals of right at the rate of $1250 per case and in accordance with the substantive terms of representation as outlined in the attached Public Defender Agreement.
Proposal Requirements Kane County will review each of the submitted applications and select an applicant based on the following information. The application should include the following items:
1. Letter of Interest. Include the Applicant’s name and business location, a statement summarizing the experience of the applicant, and a statement clarifying which of the three areas of Public Defender Services for which the applicant desires to be considered.
2. Background. The education, qualifications, and experience of the Applicant. A resume is preferred.
3. References. The Applicant must provide a list of references that includes contact information.
4. Other Associated Attorneys. If the Applicant works as part of a law firm the application must also include the names and resumes of other attorneys in the firm that may potentially provide services or assist in providing services.

Page 1 of 2

1

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 54 of 62
Submittal Instructions Applications will be received at the Kane County Clerk’s Office 76 North Main St., Kanab, Utah 84741 until 5:00 p.m. on Wednesday, March 2nd, 2016. Hard copies are acceptable but an electronic version of the application is preferred and can be emailed to clerkkj@kane.utah.gov. Correspondence, questions and/or clarifications of the application procedure should be directed to: Karla Johnson Kane County Clerk, 76 North Main, Kanab, UT 84741, (435) 644-2458 clerkkj@kane.utah.gov. Selection Criteria Applicants will be selected based upon qualifications, experience, and ability to comply with the County’s obligation to provide a constitutionally adequate defense. Selection Process Completed applications must be received by 5:00 p.m. on Wednesday, March 2nd, 2016. The Kane County Commission will review the applications and may request interviews of qualified applicants on March 14th, 2016 (anticipated date). Applicants will be selected and notified of the award within one to two weeks, but likely within the first week. The awarded applicants will be contacted to enter into a contract for services. If the awarded proposal does not enter into a formal contract the next best applicant will be contacted. It is anticipated that services will begin April or May 1st, 2016.
Page 2 of 2

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 55 of 62
PUBLIC DEFENDER AGREEMENT TRIAL SERVICES
March 1, 2016 - February 28, 2018
This agreement made and executed by and between Kane County, a body corporate and politic of the State of Utah, hereinafter referred to as “County,” and __________________, hereinafter referred to as “Attorney”.
WITNESSETH
WHEREAS, pursuant to Utah Code Ann. §77-32-101 et. seq. (1953 as amended), the County is obligated to provide for the defense of an indigent adult and juvenile in criminal cases in the courts; and
WHEREAS, the County may fulfill the statutory obligation through the appointment of qualified legal counsel who may provide the indigent legal services required by Utah Code Ann. §77-32-301 and §77-32-304; and
WHEREAS, Attorney is a qualified and competent attorney, licensed to practice law in the State of Utah and is willing to enter into this agreement with the County and is willing and desirous to perform the necessary legal services for indigent juvenile and adult defendants;
NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein, it is hereby agreed between the parties as follows:
Section 1. REPRESENTATION
1.1 Utah Code Ann. §77-32-301 requires Counties “[t]o provide counsel for each indigent who faces the substantial probability of the deprivation of the indigent’s liberty.”
1.2 Pursuant to statutory directive, Attorney shall provide competent legal counsel in criminal matters for persons charged with criminal acts in the Justice, District or Juvenile Courts of Kane County (hereinafter “indigent defendant(s)”) except as specifically excluded by Section 6 and Section 7.1 below. These criminal matters may include any misdemeanors and any felony up to and including first degree felonies.
1.3 Attorney shall cooperate with the courts to obtain an affidavit from the individual defendant averring his/her inability to pay for private counsel. The affidavit shall comply with the requirements of Utah Code Ann. §77-32-202. Attorney agrees not to act in a case until the court has issued its order of appointment. Attorney further agrees to promptly notify the court of any changes with regard to the

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 56 of 62

Section 2. 2.1
2.2 2.3 2.4
2.5 2.6

indigent status of a defendant, which changes would affect the qualifying of the defendant for court-appointed counsel. Attorney also agrees to assist the courts and the County Attorney’s Office in providing information necessary to recover costs pursuant to Utah Code Ann. §77-32-202(6).
QUALIFICATIONS
By his signature below, Attorney certifies that he is a member in good standing of the Utah Bar and that he is competent in the criminal practice of law. Attorney further certifies that he shall at all times during the period of this contract, maintain his status as a member in good standing of the Utah Bar.
Attorney certifies that he is a citizen of the United States or permanent resident alien.
Attorney shall maintain a bona fide office in the County at which to conduct business which shall be made known to the clients served under this agreement.
Attorney Agrees to abide by all federal state and local laws, to abide by the Canons of Ethics adopted by the Utah Bar Association and to be bound by the Rules of Civility adopted by the Utah Supreme Court.
Attorney agrees that he is not currently, nor shall be, party to any litigation which would place his licensing or standing with the Utah Bar in jeopardy.
Attorney shall, during the period of this Agreement, maintain professional malpractice insurance and provide to the County, evidence of the insurance. Additionally, Attorney agrees to hold the County harmless from all damages, loss or injury it may suffer or be held liable for as a result of the conduct of Attorney or as a result of this Agreement.

2.7 In the event of any change of address, on-going conflict of interest, conflicting litigation or inability to practice law, the Attorney shall promptly notify the County in writing of such change of status.
2.8 Attorney shall keep abreast of all current legal trends and to that end shall maintain sufficient continuing professional education credits during the period of this agreement. To further encourage the continuing education of Attorney, the County shall pay tuition costs annually for one (1) criminal law continuing legal education seminar or up to eight (8) hours of criminal law related continuing legal education presented by Utah’s Criminal Defense Association, Utah Prosecution Council, or other equivalent approved entity during the period of this agreement.
Section 3 BASE DUTIES OF ATTORNEY
In exchange for the base compensation described in Section 5.1 below, Attorney agrees

2

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 57 of 62
to provide the following base duties in his representation of indigent defendants.
3.1 Pursuant to Utah Code Ann. §77-32-301, Attorney shall, subject to the exclusions of Section 6 and Section 7.1 below, provide competent and timely representation and counsel for each indigent defendant who has been charged by the Kane County Attorney’s Office with violations of Utah law or County Ordinance in proceedings before the Justice, District and Juvenile Courts of Kane County and who faces the substantial probability of the deprivation of liberty as outlined in Section 1 above.
3.2 It is understood and agreed that accessibility to indigent defendants is an integral consideration in the making of this agreement and therefore the Attorney agrees to be available and accessible to indigent clients reasonably in advance of any hearing or trial. Attorney also agrees to make reasonable efforts to visit indigent defendants who are incarcerated in the Kane County Jail, admitted to a hospital or otherwise confined at the earliest possible moment; to return telephone calls as soon as reasonably possible and to otherwise be reasonably accessible to all indigent defendants.
3.3 Attorney shall, subject to the exclusions of Section 6 and Section 7.1 below, provide legal representation to indigent defendants in all matters involving criminal charges and for which Kane County is obligated by statute to provide legal services. The representation shall include conferring with clients, attending all matters before the court including scheduling conferences, all hearings and trials, and all other matters required to ensure adequate representation including, but not limited to probation revocation hearings and restitution hearings.
3.4 In the event of a scheduling conflict, Attorney must make his best effort to ensure that the representation under this contract is the first priority in scheduling. In the event Attorney requires that a matter assigned to him be temporarily reassigned on the basis of a scheduling conflict, the Attorney shall use only those attorneys currenlty practicing within the same law firm who have similar qualifications.
3.5 Attorney is responsible to always appear for his assigned indigent defendants whenever and wherever Court is held on their cases, including when those appearances are in Justice, District and/or Juvenile Court.
3.6 Attorney agrees to maintain adequate and proper records of the representation for each assigned indigent defendant.
3.7 Attorney agrees to provide to the legislative body or its designee, a bi-annual report of the number and types of cases or matters handled specifying the types and classes of offenses, courts, particular clients, non-jury trials, jury trials, hearings other than trials, plea-negotiated settlements and/or such other factors or statistical information as may be reasonably requested by the County that do not violate attorney client privilege. Attorney further agrees to undergo annually a
3

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 58 of 62
performance evaluation before the legislative body or designee to consider compliance with the terms of this agreement, including review of all bi-annual reports considering dispositions on each assigned indigent defendant, continuing legal education and training requirements together with review of qualitative input from the Judiciary and the County Attorney’s Office.
3.8 Representation of indigent defendants shall be up to and including the filing of the first notice of appeal (see Section 4 below).
3.9 It is agreed between the parties that the County will bear the reasonable and necessary cost of investigators, laboratory costs, transcripts and defense witness fees, including expert witnesses called on behalf of indigent clients. Further, the County will bear the reasonable travel costs of Attorney, if any is required outside of Kane County in conjunction with their representation. It is agreed by the parties that prior to Attorney incurring expert witness fees on behalf of a client, the amount of the fee and the expert used will be approved by the court having jurisdiction of the case. The Attorney hereby agrees to use his best efforts to minimize the cost and expenses and shall make application for the approval of expenses in the form of a written motion the trial judge, specifying the reasons for the expense. Payment for any expense incurred by the Attorney and not previously approved by the Court or in excess of that approved by the Court, shall be the sole responsibility of the Attorney.
3.10 Except as provided herein, Attorney will bear all other expenses in providing the services contemplated herein, including, but not limited to, transportation to, from and within Kane County, office, telephone, postage, copying and secretarial costs.
Section 4 SPECIAL DUTIES OF ATTORNEY – RIGHT OF APPEAL
4.1 In addition to the base legal services described in Section 3 above, Attorney shall file a notice of appeal to the Utah Court of Appeals and/or the Utah Supreme Court with a copy sent to Appellant Counsel designated by County within ten (10) days of a conviction or final judgment against client upon consultation with and direction of his/her client based on a good faith belief the claims, defenses, or other legal contentions are warranted by existing law, or by a non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law.
4.2 Immediately upon filing a notice of appeal, but not later than ten (10) calendar days thereafter, Attorney shall contact Appellant Counsel designated by County to transition and turn over all relevant records within Attorney’s possession or control as necessary in the interests of justice and as requested by Appellate Counsel.
Section 5 PAYMENT
4

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 59 of 62

5.1 5.2
Section 6 6.1 6.2
Section 7 7.1

In exchange for the services rendered in Section 3 above (Base Duties), County shall pay to Attorney the sum of ______________________annually. Said sum shall be paid in equal monthly installments delivered by the 15th of each month in which a payment is due.

It is specifically understood that Attorney will accept no other payment for work provided under this agreement, other than that compensation provided in the agreement under this Section. In the event a court orders repayment from any defendant for attorney fees and costs, all such repayment shall belong to the County.

5.3 Upon a showing of critical need, Attorney may request additional funding for extraordinary unforeseen expenses which may arise during the term of this agreement. A critical need for extraordinary unforeseen expenses shall be construed in favor of the accused and shall be determined weighing the nature, scope and materiality of the need in light of County resources and the County’s constitutional duty to provide adequate defense resources for each indigent who faces the substantial probability of the deprivation of the indigent’s liberty.

EXCLUSIONS.

Attorney shall not be required to represent any indigent defendant charged with a capital felony matter.

Attorney shall not be required to represent any indigent defendant charged with violations of municipal law or any civil matter or any juvenile matter except those involving charges of delinquency.

OTHER PROVISIONS

Conflicts of Interest. Attorney agrees to use his best efforts to avoid any conflicts of interest which would divide loyalty of defense counsel to the client. The parties recognize, however, that certain cases may arise where conflicts are of sufficient magnitude that Attorney cannot represent the indigent defendant.

7.1.1

In the event of a conflict of interest or other permanent reassignment,
Attorney shall first give notice to the Court verbally or in writing of the need and/or purpose of reassignment with a copy to the County Attorney. If the conflict is approved by the Court, the Court Clerk shall notify an attorney on the approved conflict counsel list of Kane County.

7.1.2

In the event Attorney is disqualified from representing an indigent defendant after appointment, for any reason involving the misconduct of the Attorney or the filing of litigation in which Attorney is a party by any or all of the courts in which services are provided under this agreement or by the Utah State Bar, then Attorney shall be responsible for costs incurred by the County in provided substitute counsel for indigent

5

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 60 of 62

defendants.

7.2 Assignability of Agreement. This agreement is personal in nature and is not assignable to any person not a party to the agreement without the express written consent of the County.

7.3 Independent Contractor. It is understood by the parties that the Contractor is an independent contractor and not an agent, representative, or employee of the County nor is this contract intended to create such a relationship. It is further understood by the parties that all compensation provided hereunder shall not include deductions for FICA, Federal and State income tax and shall not include retirement benefits, health benefits, holiday pay leave or any other fringe benefit of the County.

7.4 Duration. This contract shall be of two (2) years in duration commencing on April 1, 2016 and ending on March 31, 2018.

7.5 Renewal. This contract may be renewed for an additional one (1) year term, not to exceed February 28, 2019, upon written agreement by both parties.

7.6 Termination. This agreement may be terminated upon the following events:

7.6.1

Breach. In the event that either party hereto shall deem the other to be in breach of any provision hereof, the party claiming the existence of the breach on the other’s part shall notify the other in writing of such breach. The breaching party shall have fifteen (15) days in which to commence all actions necessary to cure the breach and shall notify the complaining party in writing of the actions taken to cure the breach. In the event the actions reasonably necessary to cure the breach are not commenced in a timely manner, the complaining party may terminate this agreement.

7.6.2 Voluntary Termination. Either party may terminate this agreement upon the delivery of written notice to the other party ninety (90) days prior to the termination.

7.6.3 Misconduct. In the event any disciplinary action is taken by the Utah State Bar against the Attorney, this contract may be immediately terminated without notice.

7.7 Notice. Any notice required by this agreement shall be given in writing addressed to the following unless otherwise designated in writing.

FOR THE COUNTY:
Kane County Commission 76 North Main Kanab, Ut 84741

6

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 61 of 62

FOR THE ATTORNEY: ____________________ ____________________ ____________________

7.8 Transition. In the event this agreement is terminated under the provisions of Sections 7.6 above or is not renewed under the provisions of Section 7.5 above: 7.8.1 Attorney agrees to complete those existing cases where it is not feasible for Attorney to withdraw. Compensation for such cases shall be the then prevailing rate being paid to attorneys who handle conflict-of-interest cases, reduced by the proportional amount of work already completed.

7.8.1 The Attorney agrees to cooperate with his successors including the filing of all necessary pleadings for withdrawal and to deliver all applicable files, information and materials to the successor.

7.8.2

In the event the Attorney is not permitted to withdraw from the representation in any matter by the court, the County agrees to compensate the Attorney for base services under Section 3 above, at the prevailing rate being paid to attorneys who handle conflict-of-interest cases.

7.9 Private practice. Nothing in this agreement shall prohibit Attorney from representing private clients so long as the representation of private clients does not interfere with or create a conflict of interest in the representation of indigent defendants.

7.10 Governing law. This agreement shall be governed by the laws of the State of Utah.

7.11 Non-funding clause. It is understood by the parties that as a governmental entity, the County funding for this agreement is subject to the funds being appropriated by the legislative body. In the event no funds or insufficient funds are appropriated and budgeted in the fiscal year(s) of this agreement, this agreement shall terminate and become null and void on the last day of the fiscal year for which funds were budgeted and appropriated, or in the event of a reduction in appropriations, on the last day before the reduction becomes effective. Said termination shall not be construed as a breach or default under this agreement and said termination shall be without penalty, additional payments, or other expense to the County of any kind whatsoever, and no right of action for damages or other relief shall accrue to the benefit of Attorney.

7.12 Discrimination. Attorney assures that he will comply with the Americans with

7

Case 2:16-cv-00789-DN-DBP Document 18-1 Filed 07/26/16 Page 62 of 62

Disabilities Act (ADA), and Title VI of the Civil Rights Act of 1964 and that no person shall, on the grounds of race, creed, color, sex, sexual orientation, marital status, disability, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this agreement.
7.13 Drug Court. As part of this agreement, the Public Defender shall also provide limited representation for all clients accepted into the Kane County Drug Court Program in order to ensure that the clients’ legal rights are protected. The Public Defender shall advise Drug Court clients of their legal options, program conditions, and possible sentencing outcomes. Public Defender representation shall commence upon notice to the Public Defender from the Sixth Judicial District Court that an individual is scheduled for a Drug Court Review hearing, and representation shall continue until a client is graduated from, or terminated from, the Drug Court Program. The Public Defender shall attend Drug Court staffing sessions and court sessions, provide input and recommendations on clients’ progress and advancement, and shall be available through all phases of the program to advise participants on Drug Court rules, sanctions, legal consequences and penalties, and possible mitigation of charges.
7.14 Entire Agreement. The parties agree that this Agreement constitutes their entire Agreement and any changes or modifications must by agreed to in writing by both parties and approved by the County Legislative Body in a public meeting.

In witness whereof, the parties have executed this contract the day and year written below:

FOR THE COUNTY:

FOR THE ATTORNEY:

_____________________________ Dirk Clayson, Commission Chair
DATED: _____________________

________________________________ DATED: _____________________

Approved as to form:
__________________________ Robert Van Dyke Kane County Attorney

8

 
 Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

COLTON GUY REMICK, an individual; SKYLAR W. GARNER, an individual; BRYCE TUCKER LLOYD, an individual; ANTHONY MURDZAK, an individual; COLTER RICKS, an individual; BRANDON TIMMS, an individual; and JOHN DOES 1100;

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
Case No. 2:16-cv-00789-DN-DBP

Plaintiffs,

District Judge David Nuffer

v.

STATE OF UTAH; and SEAN D. REYES, in his capacity as Attorney General of the State of Utah,

Defendants.

Plaintiffs, on behalf of themselves and others similarly situated, initiated this case to remedy the State of Utah’s alleged failure to provide constitutionally adequate legal representation to indigent adults accused of crimes in the State’s district and justice courts.1 Defendants moved to dismiss Plaintiffs’ Amended Complaint, arguing that Plaintiffs lack standing, have not named the proper defendants, and fail to state a cognizable claim upon which relief may be granted.2
Because Plaintiffs fail to allege sufficient facts to establish their standing to sue or to state a claim, Defendants’ Motion to Dismiss3 is GRANTED.

1 First Amended and Supplemental Class Action Complaint for Declaratory Relief (“Amended Complaint”) ¶ 1, docket no. 46-1, filed Feb. 1, 2017.
2 Defendants’ Motion to Dismiss, docket no. 28, filed Aug. 5, 2016.
3 Id.

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 2 of 44
TABLE OF CONTENTS BACKGROUND ............................................................................................................................ 2
Utah’s Indigent Defense System......................................................................................... 3 Procedural History .............................................................................................................. 8 DISCUSSION ............................................................................................................................... 10 Standard of Review........................................................................................................... 10 Plaintiffs Fail to Sufficiently Allege an Injury in Fact ..................................................... 13
There are insufficient allegations of an actual or complete denial of appointed counsel— Cronic’s first situation in which prejudice is presumed .......... 18
There are insufficient allegations that Plaintiffs’ public defenders have entirely failed, or will entirely fail, to subject the prosecution’s cases to meaningful adversarial testing— Cronic’s second situation in which prejudice is presumed ................................................................................................... 24
There are insufficient allegations that Plaintiffs’ public defenders have been called upon to render assistance under circumstances where competent counsel very likely could not— Cronic’s third situation in which prejudice is presumed ................................................................................................... 27
Plaintiffs Fail to Sufficiently Demonstrate a Causal Connection Between Their Alleged Injury and Defendants’ Conduct ........................................................................... 32
The Declaratory Relief Plaintiffs Seek Does Not Meet the Standard for Redressability . 37 ORDER ......................................................................................................................................... 44
BACKGROUND
“The assistance of counsel is one of the safeguards of the Sixth Amendment deemed
necessary to insure fundamental human rights of life and liberty.”4 This right “stands as a
constant admonition that if the constitutional safeguards it provides be lost, justice will not still
be done.”5 “The right of one charged with crime to counsel may not be deemed fundamental and
essential to fair trials in some countries, but it is in ours.”6
“Governments, both state and federal, quite properly spend vast sums of money to
establish machinery to try defendants accused of crime.”7 “Similarly, there are few defendants
4 Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (internal quotations and punctuation omitted). 5 Id. (internal quotations omitted). 6 Id. at 344. 7 Id.
2

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 3 of 44
charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses.”8 “That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries.”9
“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”10 “This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”11 Therefore, “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”12
Utah’s Indigent Defense System “To ensure compliance with the requirements that indigent defendants receive effective assistance of counsel and access to the basic tools of defense, the Utah Legislature enacted the Utah Indigent Defense Act”13 (the “Act”). The Act establishes a system in which the State of Utah delegates the provision of indigent defense services to its counties and municipal legislative bodies.14 The State’s counties and municipalities must either “(a) contract with a defense services provider; or (b) authorize the court to provide the services . . . by assigning a qualified
8 Id. 9 Id. 10 Id. 11 Id. 12 Id. 13 State v. Parduhn, 283 P.3d 488, 493 (Utah 2011) (internal quotations omitted), superseded by statute as stated in State v. Steinly, 345 P.3d 1182 (Utah 2015); Utah Code Ann. § 77-32-101 through -810. 14 Utah Code Ann. § 77-32-306; Amended Complaint ¶¶ 8, 57.
3

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 4 of 44
attorney in each case.”15 A county may also create a county legal defender’s office which may contract with other counties and municipalities or enter interlocal cooperation agreements to provide for indigent defense.16 Additionally, counties and municipalities are authorized to enact ordinances to “provide for some other means which are constitutionally adequate for legal defense of indigents.”17
Under the Act, public defenders shall “(a) counsel and defend the indigent at every stage of the proceeding following assignment; and (b) file any first appeal of right or other remedy before or after conviction that the assigned counsel considers to be in the interest of justice[.]”18 The Act also provides minimum standards for indigent defense, including provision for avoiding conflicts of interest among public defenders.19
Regarding compensation, the Act provides that, except for counsel acting as defense services providers or otherwise under contract with a county or municipality, “[t]he county shall pay reasonable compensation to any attorney assigned by the court . . . .”20 The Act directs the counties and municipalities to “establish and annually review guidelines for the rate of compensation” for public defenders which take into account:
(i) the nature and complexity of the case; (ii) the competency and years of experience in criminal defense of the assigned attorney;
15 Utah Code Ann. § 77-32-306(1). 16 Id. §§ 77-32-306(2)-(4). 17 Id. § 77-32-306(6). 18 Id. § 77-32-304(1). 19 Id. §§ 77-32-201(12), 301. 20 Id. §§ 77-32-304.5(1), (2)(a).
4

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 5 of 44
(iii) the adjusted net hourly rate incurred by the county or municipality for a prosecutor or public defender of equivalent experience and competency; and (iv) the prevailing rates within the judicial district for comparable services.21 If guidelines are not established, the Act provides that the public defender’s rate of compensation will be determined by a judge using the same criteria.22 The Act also requires counties and municipalities to reimburse contracting public defenders for reasonably incurred expenses, exclusive of overheard and extraordinary expenses not approved by the court.23 The state, counties, and municipalities are also responsible for defense expenses for printing briefs on any first appeal of right, including expenses of depositions and other transcripts.24 The Act sets forth procedures for judicial review of challenges to the amount of a public defender’s compensation and the approval of proposed expenditures for any extraordinary expense.25 And the Act authorizes counties and municipalities to use public funds to carry out the Act’s purposes, and to levy and collect taxes to meet the Act’s requirements.26 Additionally, the Act creates two trust funds for specific types of indigent defense. The first is the Indigent Inmate Trust Fund,27 which pays for the “representation, costs, and expenses of legal defense counsel for an indigent inmate in a state prison . . . who is charged with having
21 Id. § 77-32-304.5(2)(b). 22 Id. §§ 77-32-304.5(2)(c), (e). 23 Id. § 77-32-305.5(2). An “extraordinary expense” is “the collective expense which exceeds $500 for defense resources or any particular service or item such as experts, investigators, surveys, or demonstrative evidence.” Id. § 77-32-305.5(1). 24 Id. § 77-32-305. 25 Id. §§ 77-32-304.5(d), 305.5(3). 26 Id. §§ 77-32-307(1), (3). 27 Id. § 77-32-502(1).
5

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 6 of 44
committed a crime within the facility, and who will require defense counsel . . . .”28 This fund consists of proceeds received from county tax levies, appropriations made by the State Legislature, and interest and earnings from the investment of fund money.29
The second fund created by the Act is the Indigent Aggravated Murder Defense Trust Fund.30 It is “used to assist participating counties with financial resources . . . to fulfill their constitutional and statutory mandates for the provision of an adequate defense for indigents prosecuted for the violation of state laws in cases involving aggravated murder.”31 And it consists of money received from participating counties, appropriations made by the State Legislature, and interest and earnings from the investment of fund money.32
These funds are administered by the Indigent Defense Funds Board within the State’s Division of Finance. This board is tasked with establishing rules and procedures for disbursements, and negotiating, entering into, and administering contracts with public defenders that are qualified and meet the standards of the Act.33
Finally, the Act was amended in May 2016 to create the Utah Indigent Defense Commission within the State’s Commission on Criminal and Juvenile Justice.34 “The purpose of the commission is to assist the state in meeting the state’s obligations for the provision of
28 Id. §§ 77-32-502(2). 29 Id. § 77-32-502(3). 30 Id. § 77-32-601(2). 31 Id. § 77-32-601(5). 32 Id. § 77-32-601(3). 33 Id. §§ 77-32-401(1), 402(1), 501. 34 Id. § 77-32-801(1).
6

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 7 of 44
indigent defense services, consistent with the United States Constitution, the Utah Constitution,
and the Utah Code.”35 The commission has authority to:
• develop and adopt guiding principles for the assessment and oversight of indigent defense systems within the state;
• identify and collect data necessary to review compliance, establish procedures, and provide reports regarding the operation of the commission and indigent defense services;
• develop and oversee the establishment of advisory caseload principles and guidelines to aid indigent defense systems;
• review contracts and interlocal agreements for the provision of indigent defense services and provide assistance and recommendations regarding compliance with minimum principles for effective representation of indigent individuals in court;
• investigate, audit, and review indigent defense services for compliance with minimum principles;
• establish procedures for the receipt, acceptance, and resolution of complaints regarding indigent defense services;
• establish procedures that enable indigent defense systems to apply for state funding;
• establish procedures for annual reporting to the governor and the State Legislature and Judicial Council;
• award grants to indigent defense systems;
• encourage and aid in the regionalization of indigent defense services within the state for effective representation and for efficiency and costs savings to local systems;
• submit to legislative, executive, and judicial leadership proposed recommendations for improvement of indigent defense services; and
• identify and encourage best practices for effective representation.36
35 Id. § 77-32-801(2). “‘Indigent defense services’ means the representation of indigent persons in criminal, juvenile delinquency, and child welfare cases.” Id. § 77-32-801(3)(a). 36 Id. § 77-32-804(1). “‘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.” Id. § 77-32-801(3)(b).
7

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 8 of 44
The 2016 amendment to the Act also created an Indigent Defense Resources Restricted Account within the State’s General Fund.37 The account consists of appropriations made by the State Legislature, money received by the commission, and interest and earnings from the investment of account money.38 And it is administered by the commission for “(a) establishment and maintenance of a statewide indigent defense data collection system; (b) grants to indigent defense systems for defense resources; and (c) grants to indigent defense systems for defense services providers.”39
Procedural History Plaintiffs are indigent adults who have been charged with crimes in the State of Utah’s district courts for which incarceration is a possible consequence of a conviction.40 As indigent persons, Plaintiffs are dependent on legal counsel and other associated services necessary for their defense being provided to them.41 Plaintiffs maintain that they have been, and are continuing to be, harmed by Defendants’ failure to fund, administer, and supervise the State’s indigent defense system.42 Plaintiffs initiated this proposed class action on June 26, 2016, in Utah’s Third Judicial District Court for Salt Lake County.43 Plaintiffs amended their complaint on July 1, 2016.44 And
37 Id. § 77-32-805(2). 38 Id. § 77-32-805(3). 39 Id. § 77-32-805(5). 40 Amended Complaint ¶¶ 31-36, 43. 41 Id. ¶ 44. 42 Id. ¶¶ 1, 45. 43 Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (“Plaintiffs’ Opposition”) at 4, docket no 46, filed Feb. 1, 2017; Class Action Complaint for Declaratory Relief, docket no. 2-1, filed July 13, 2016. 44 Plaintiffs’ Opposition at 4, n.14.
8

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 9 of 44
on July 13, 2016, Defendants removed the case to this court.45 Plaintiffs subsequently moved for certification of their proposed classes46 and Defendants moved to dismiss Plaintiffs’ Amended Complaint.47 Movant Roger Bryner has also filed a motion to intervene and participate in the case as a representative plaintiff.48
Plaintiffs’ Amended Complaint alleges claims for violation of Plaintiffs’ rights to counsel and due process under the Sixth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Article 1, §§ 7 and 12 of the Utah Constitution; and for violation of the minimum standards for indigent defense under § 301 of Utah’s Indigent Defense Act.49 The Amended Complaint requests relief in the form of declaratory judgment, injunctive relief, reasonable costs and attorneys’ fees, and other appropriate supplemental and equitable relief.50
However, in response to Defendants’ Motion to Dismiss, Plaintiffs limited their requested relief “to present a single issue for declaratory judgment: whether the Defendants are complying with the U.S. and Utah Constitutions in the way they ensure (or fail to ensure) the provision of indigent defense services statewide.”51 Plaintiffs affirmatively represent that they are not seeking injunctive relief.52 They assert that “[b]ecause the ongoing crisis is a state problem, permanently solving it requires a state remedy.”53 Therefore, Plaintiffs maintain that if “Defendants are failing
45 Notice of Removal to Federal Court, docket no. 2, filed July 13, 2016. 46 Plaintiffs’ Motion for Class Certification, docket no. 16, filed July 26, 2016. 47 Defendants’ Motion to Dismiss. 48 Verified Motion to Intervene and Participate as Class Member and Additional Lead Plaintiff (“Motion to Intervene”), docket no. 59, filed Apr. 6, 2017. 49 Amended Complaint ¶¶ 198-231. 50 Id. ¶¶ 2, 204, 211, 216, 223, 231, Relief Requested at 51-52. 51 Plaintiffs’ Opposition at 2. 52 Id. at 12-15. 53 Id. at 13.
9

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 10 of 44
in their obligations under the Sixth and Fourteenth Amendments to the U.S. Constitution and Article 1, Sec. 12 of the Utah Constitution, then the methods by which that system is brought into constitutional compliance will be left to the Defendants—not the Court.”54
DISCUSSION Defendants seek dismissal of Plaintiffs’ Amended Complaint arguing that Plaintiffs lack standing, have not named the proper defendants, and fail to state a cognizable claim upon which relief may be granted.55 Whether analyzed in terms of standing or failure to state a claim, dismissal of Plaintiffs’ Amended Complaint is appropriate. The Amended Complaint is rife with generalized and conclusory allegations, and legal argument and opinions, which are insufficient to establish Plaintiffs’ right to sue or state a claim. But because standing is a threshold jurisdictional issue,56 the Amended Complaint will be analyzed and dismissed under principles of standing. However, for the same reasons, the Amended Complaint fails to state a claim upon which relief may be granted.57
Standard of Review “Federal courts are courts of limited jurisdiction.”58 “They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree[.]”59
54 Id. at 2 (emphasis in original). 55 Defendants’ Motion to Dismiss. 56 Warth v. Seldin, 422 U.S. 490, 500 (1975). 57 The Tenth Circuit has not addressed whether a claim exists for a state’s systematic, preconviction denial of the right to counsel. Relying on precedent from other federal and state jurisdictions, Plaintiffs maintain that such a claim exists, and to succeed on the claim they must show “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.” Plaintiffs’ Opposition at 25-31 (quoting Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988)). As discussed below, the allegations of the Amended Complaint fail to demonstrate, or support a reasonable inference, that Plaintiffs have suffered, are suffering, or will suffer an actual or constructive denial of their right to counsel. 58 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 59 Id. (internal citations omitted).
10

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 11 of 44
Therefore, “[i]t is presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]”60
“Article III of the [United States] Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and ‘Controversies.’”61 “‘No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’”62 “‘One element of the case-or-controversy requirement’ is that plaintiffs ‘must establish that they have standing to sue.’”63 “This is the threshold question in every federal case[.]”64
“The law of Article III standing, which is built on separation-of-powers, serves to prevent the judicial process from being used to usurp the powers of the political branches.”65 “Without such limitations . . . the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.”66
Thus, “[i]t is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to
60 Id. (internal citations omitted). 61 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). 62 Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). 63 Id. (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). 64 Seldin, 422 U.S. at 500. 65 Amnesty Int’l USA, 568 U.S. at 408. 66 Seldin, 422 U.S. at 500.
11

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 12 of 44
comply with the laws and the Constitution.”67 “Of course, the two roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, or that will imminently be suffered, by a particular individual or class of individuals, orders the alteration of an institutional organization or procedure that causes the harm.”68 “But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly.”69
With these principles in mind, the United States Supreme Court has held: the irreducible constitutional minimum of standing contains three elements[:] First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.70 “For purposes of ruling on a motion to dismiss for want of standing . . . courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.”71 But “[a] federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.”72 Conclusory allegations are not
67 Lewis v. Casey, 518 U.S. 343, 349 (1996). 68 Id. at 350. 69 Id. 70 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotations, citations, and punctuation omitted). 71 Seldin, 422 U.S. at 501. 72 Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990)).
12

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 13 of 44
considered,73 and the complaint’s legal conclusions and opinions are not accepted, even if they are couched as facts.74
Plaintiffs Fail to Sufficiently Allege an Injury in Fact The first element of standing requires a plaintiff to establish that it has suffered an injury in fact. An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”75 Plaintiffs’ alleged injury is the actual and constructive denial of their right to counsel.76 Because Plaintiffs’ underlying criminal cases are ongoing, they attempt to proceed using a denial of counsel theory where prejudice to their defense is presumed.77 In United States v. Cronic,78 the United States Supreme Court identified “three situations implicating the right to counsel that involved circumstances ‘so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified[,]’” and thus prejudice is presumed.79 “First and ‘[m]ost obvious’ [i]s the ‘complete denial of counsel.’”80 “A trial would be presumptively unfair . . . where the accused is denied the presence of counsel at ‘a critical stage,’ . . . a step of a criminal proceeding, such as arraignment, that held significant
73 Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). 74 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995). 75 Lujan, 504 U.S. at 560. 76 Amended Complaint. ¶¶ 1, 45, 70. While Plaintiffs’ Amended Complaint includes claims under the Sixth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, Article 1, §§ 7 and 12 of the Utah Constitution, and Utah Code Ann. § 77-32-301, each claim is premised on an alleged injury resulting from the actual and constructive denial of Plaintiffs’ right to counsel. Id. ¶¶ 198-231. 77 Id. ¶¶ 87-88; Plaintiffs’ Opposition at 15-25. 78 466 U.S. 648, 658-59 (1984). 79 Bell v. Cone, 535 U.S. 685, 695 (2002) (quoting Cronic, 466 U.S. at 658-59). 80 Id. (quoting Cronic, 466 U.S. at 659).
13

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 14 of 44
consequences for the accused.”81 Second, “a similar presumption [i]s warranted if ‘counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing.’”82 And third,
“where counsel is called upon to render assistance under circumstances where competent counsel
very likely could not, the defendant need not show that the proceedings were affected.”83
To show an injury in fact to Plaintiffs, the Amended Complaint sets out 231 numbered
paragraph allegations. The vast majority of these allegations are generalized and conclusory. For
example, the Amended Complaint alleges:
All of them have had very little time to meet with their public defenders before critical events in their cases, some having spent weeks in jail without any contact, making it impossible for them to meaningfully participate in the defense. Some have been forced to meet with their defenders in the presence of others awaiting criminal hearings because their defenders lack the resources to arrange for private meetings. Several have not had their attorneys assist them in having the court review their bail in a meaningful way. Each of their attorneys are compromised in their ability to engage necessary resources like experts and investigators. Each are likely to feel pressure to accept a disadvantageous plea deal that they are unlikely to fully understand, and are unlikely to be fully advised by their attorneys of the long term consequences of a guilty plea. All face significant time incarcerated if convicted of their charges.84
It also generally alleges that Plaintiffs and the proposed class members are:
spending more time in pre-trial detention; being subject to excessive bail; accepting plea agreements about which they are ill-informed and have no understanding of collateral effects (e.g., immigration); agreeing to plea agreements that are excessively punitive (increased fines and recoupment of attorney fees) and entail longer sentences; being unaware of sentencing alternatives; and generally being denied the constitutionally mandated procedures that ensure a fair and just defense to criminal charges.85
81 Id. at 695-96 (internal citations omitted). 82 Id. at 696 (quoting Cronic, 466 U.S. at 659). 83 Id. 84 Amended Complaint ¶ 25. 85 Id. ¶ 191.
14

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 15 of 44
But the Amended Complaint fails to include necessary factual allegations demonstrating that these generalized grievances have occurred, are occurring, or will occur to Plaintiffs.
Plaintiffs argue that Defendants’ alleged failure to collect empirical data on the State’s indigent defense system and its public defenders prevents them from alleging specific facts demonstrating the violation of their right to counsel.86 A lack of statewide empirical data may be a valid reason for Plaintiffs’ generalized and conclusory allegations regarding the State’s indigent defense system as a whole, but it is not a valid excuse for their failure to allege specific facts concerning their own public defenders and their own criminal cases.
Plaintiffs’ right to counsel is certainly a cognizable interest for purposes of standing. “But the ‘injury in fact’ test requires more than an injury to a cognizable interest.”87 “It requires that the [plaintiffs] be [themselves] among the injured.”88 And the “threatened injury must be certainly impending to constitute injury in fact[; a]llegations of possible future injury are not sufficient.”89 Without factual allegations showing that Plaintiffs are among the injured and the injury is certainly impending, the Amended Complaint fails to allege an invasion of Plaintiffs’ legally protected interests that is concrete and particularized, and actual or imminent.90
Only nine of the Amended Complaint’s 231 numbered paragraphs include factual allegations relating to the six Plaintiffs.91 The rest of the allegations are generalized and conclusory, and legal argument and opinions couched as facts. These types of allegations do not
86 Id. ¶¶ 14-17, 60, 98, 107, 144-45, 155; Plaintiffs’ Opposition at 16-17. 87 Defenders of Wildlife, 504 U.S. at 563 (internal quotations omitted). 88 Id. (internal quotations omitted). 89 Clapper, 568 U.S. at 409 (internal quotations omitted). 90 Id. at 560. 91 Amended Complaint ¶¶ 31-36, 193, 195, 196.
15

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 16 of 44
suffice.92 And even the nine paragraphs relating to Plaintiffs include generalized and conclusory
commentary, and legal argument and opinions.93
The factual allegations relating to the six Plaintiffs are as follows:
• Plaintiff Colton Guy Remick was incarcerated in the Tooele County Detention Center in Tooele, Utah on May 4, 2016, and remained incarcerated as of July 1, 2016. He has pending charges of possession of a forgery device (Third Degree Felony); possession or use of a controlled substance (Third Degree Felony); and use or possession of drug paraphernalia (Class B Misdemeanor). Since his incarceration, Mr. Remick has spoken with his public defender once—at his initial appearance. When Mr. Remick spoke with his public defender, it was for a “short time” and in the presence of “many” other defendants waiting in a line to meet with the public defender.94
• Plaintiff Skylar W. Garner is a 32-year-old married man with two children under the age of five. As of July 1, 2016, he was incarcerated in the Carbon County Jail due to a violation of a No Contact Order. Prior to his arrest, Mr. Garner held two jobs as a technician and maintenance specialist. Since his arrest, he has had “very little” contact with his public defender and has spoken with his public defender for “less than 5 minutes.” His public defender has given him no discovery or police reports, and has made no inquiry of him regarding the facts surrounding his charge.95
• Plaintiff Bryce Tucker Lloyd was incarcerated in the Tooele County Detention Center located in Tooele, Utah as of July 1, 2016. He has pending charges of burglary (Second Degree Felony); unlawful acquisition, possession, or transfer of a financial card (Third Degree Felony); possession or use of a controlled substance (Third Degree Felony); unlawful use of a financial transaction (Class B Misdemeanor); and use or possession of drug paraphernalia (Class B Misdemeanor). Mr. Lloyd has spoken to his public defender once—at his initial appearance. When Mr. Lloyd met with his public defender, it was for a “short time” and was in the presence of “several” other defendants. Mr. Lloyd has stopped attempting to speak with his public defender after “multiple” unsuccessful attempts.96
• Plaintiff Anthony Murdzak was incarcerated in the Cache County Jail located in Logan, Utah as of July 1, 2016. He has pending charges of theft (Third
92 Twombly, 550 U.S. at 555; Cory, 583 F.3d at 1244; Brown, 63 F.3d at 972. 93 Amended Complaint ¶¶ 31-36, 193, 195, 196. 94 Id. ¶¶ 31, 193, 195. 95 Id. ¶¶ 32, 193. 96 Id. ¶¶ 33, 193, 195.
16

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 17 of 44
Degree Felony); and violation of firearm restrictions (Class A Misdemeanor). Mr. Murdzak was arrested on May 28, 2016, and arraigned on June 7, 2016, at which time he was appointed counsel. He did not meet with his public defender prior to the arraignment and his only meeting with the public defender was during his arraignment. Mr. Murdzak received no charging sheet; was not aware of the charges against him; and had no information as to why a firearm restriction charge had been made, as he had no firearm at the time of his arrest, nor was one found in the vehicle he was driving. Following his arraignment, Mr. Murdzak has not met with his public defender or received discovery, and he is unaware of when he will next meet with his public defender or have a preliminary hearing set for his case.97
• Plaintiff Colter Ricks was incarcerated in the Cache County Jail located in Logan, Utah as of July 1, 2016. He has pending charges of failure to stop (Class A Misdemeanor); possession of drug paraphernalia (Class A Misdemeanor); and possession of methamphetamine (Third Degree Felony). Mr. Ricks was arrested on May 28, 2016, and arraigned via video conference on May 31, 2016. He had no counsel at his arraignment, and during the arraignment, his bail for a prior charge was revoked and his bail for his current charges was denied. After his arraignment, Mr. Ricks was appointed a public defender, but he did not meet with his public defender prior to a pretrial hearing in his case on June 27, 2016.98
• Plaintiff Brandon Timms was incarcerated in the Cache County Jail located in Logan, Utah as of July 1, 2016. He has pending charges of theft (Class B Misdemeanor); and burglary (Second Degree Felony). Mr. Timms was originally arrested in Salt Lake County, but was transported and incarcerated in the Cache County Jail because his charges allegedly took place in Logan, Utah. Mr. Timms was arrested on June 2, 2016, and arraigned on June 13, 2016. He was not provided counsel and did not meet with his public defender prior to his arraignment.99
Plaintiffs argue that these facts show a denial of their right to counsel through:
• the absence of counsel at critical stages of judicial proceedings;
• the denial of access to counsel;
• the absence of a meaningful opportunity to understand the judicial process and to assist their public defenders in preparing a defense;
97 Id. ¶¶ 34, 193. 98 Id. ¶¶ 35, 193, 196. 99 Id. ¶¶ 36, 193, 196.
17

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 18 of 44
• the denial of confidential attorney-client communications; and • being pressured to enter plea agreements that are, in the long term, not to their
advantage.100 Plaintiffs argument is without merit. The facts alleged do not expressly, or through reasonable inference, demonstrate an actual or constructive denial of Plaintiffs’ right to counsel under Cronic’s three situations where prejudice to a defendant’s criminal case is presumed. There are insufficient allegations of an actual or complete denial of appointed counsel— Cronic’s first situation in which prejudice is presumed
Counsel were appointed and present at critical stages of the judicial proceedings “[I]t has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.”101 “The rule is not mere formalism, but a recognition of the point at which the government has committed itself to prosecute, the adverse positions of government and defendant have solidified, and the accused finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”102 Therefore, the right to counsel commences “by way of formal charge, preliminary hearing, indictment, information, or arraignment.”103 And at that point, if it is determined by the court that a defendant is unable to afford to hire an attorney of the defendant’s own choosing, then the indigent defendant is entitled to have an attorney appointed by the court.104
100 Id. ¶¶ 193-96; Plaintiffs’ Opposition at 32-33. 101 Kirby v. Illinois, 406 U.S. 682, 688 (1972). 102 Rothgery v. Gillespie County, Texas, 554 U.S. 191, 198 (2008) (internal quotations omitted). 103 Id. (internal quotations omitted). 104 Gideon, 372 U.S. at 344-45. Rule 8 of the Utah Rules of Criminal Procedure and the Utah Indigent Defendant Act also imply that the right to appointed counsel materializes after a case has been filed and the defendant is found by the court to be indigent. Utah R. Crim. P. 8(a); Utah Code Ann. §§ 77-32-202, 302(1).
18

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 19 of 44
Plaintiffs misread the law in arguing that Plaintiffs were entitled to the appointment of counsel upon their arrest.105 And the Amended Complaint contains no allegations of when adverse judicial proceedings were initiated against them. Nor does it contain allegations of when, or if, Plaintiffs were found to be indigent by a court. Plaintiffs’ indigence may reasonably be inferred from the allegations suggesting that public defenders were ultimately appointed.106 But in the absence of these crucial dates, the Amended Complaint fails to sufficiently allege that counsel were not timely appointed following Plaintiffs’ arrests and the determination of their indigence. Rather, the allegations demonstrate that each Plaintiff was appointed a public defender who, after appointment, was present at each Plaintiff’s respective court hearings.107
One possible exception to this comes from the allegation that Mr. Ricks had no counsel at his arraignment and bail hearing.108 These are critical stages in a criminal proceeding,109 and could demonstrate that Mr. Ricks suffered an actual or complete denial of counsel. But because there are no allegations suggesting that Mr. Ricks had been found indigent prior to, or at, his arraignment and bail hearing, his entitlement to a public defender at those hearings is left to speculation. Moreover, even if Mr. Ricks was entitled to a public defender at those hearings, there are insufficient factual allegations to support a reasonable inference that the failure to timely appoint him counsel resulted from a statewide, systemic failing of Utah’s indigent defense system. Without further factual development, a single, cherry-picked instance does not
105 Plaintiffs’ Opposition at 19. 106 Amended Complaint ¶¶ 31-36, 193, 195, 196. 107 Id. ¶¶ 31-34, 36. 108 Id. ¶¶ 35, 193. 109 Bell, 535 U.S. at 695-96.
19

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 20 of 44
demonstrate a widespread and regular practice of untimely appointment of counsel to State’s indigent defendants.110
Therefore, the Amended Complaint fails to sufficiently allege that Plaintiffs suffered an actual or complete denial of appointed counsel at critical stages of their judicial proceedings.
Plaintiffs were not denied access to counsel or a meaningful opportunity to understand the judicial process and assist counsel in preparing a defense Plaintiffs allege that they have had only limited contact with their public defenders, and that their public defenders have been unresponsive to inquiries and not provided them with discovery and other court documents.111 But the Amended Complaint contains no allegations that Plaintiffs were ever prevented from speaking with their counsel or denied access to their counsel. The alleged lack of contact and communication between Plaintiffs and their public defenders is disheartening. But further factual context to these allegations is necessary. The Amended Complaint does not indicate the dates, number of times, or by what means Plaintiffs unsuccessfully attempted to contact their public defenders. It does not identify the topics of discussion in the instances when they did communicate with their public defenders. Nor does it offer facts regarding the procedural posture of Plaintiffs’ underlying criminal cases. Long discussions are not necessarily required at early stages of criminal proceedings. The stage of the proceedings for each Plaintiff’s criminal case is largely unknown. Whether their public defenders have received discovery from the government or whether discovery is ongoing is unknown. And whether trials are scheduled is unknown. In the absence
110 Compare Hurrell-Harring v. State, 930 N.E.2d 217, 224 (N.Y. Ct. App. 2010) (holding that the complaint was sufficient to state a claim for systemic violation of the right to counsel where the “complaint contain[ed] numerous plain allegations that in specific cases counsel simply was not provided at critical states of the proceedings.”). 111 Amended Complaint ¶¶ 31-36, 193.
20

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 21 of 44
of these facts, to assume prejudice or that Plaintiffs’ public defenders will not communicate with them about their cases as the proceedings progress toward trial is unreasonable conjecture.
Therefore, the Amended Complaint fails to sufficiently allege that Plaintiffs were denied access to counsel, or that they have not had, or will not have, a meaningful opportunity to understand the judicial process and charges against them or to assist their public defenders in preparing a defense.
No denial of confidential attorney-client communications The Amended Complaint alleges that Mr. Remick and Mr. Lloyd met with their public defenders in the presence of other defendants at their initial appearances.112 While “[t]he essence of the Sixth Amendment right to effective assistance of counsel is, indeed, privacy of communication with counsel[,]”113 Plaintiffs cite no authority supporting a per se rule that whenever conversations with counsel are overheard by others the Sixth Amendment is violated. “Indeed, the Supreme Court of the United States has rejected any such suggestion.”114 The authorities on which Plaintiffs rely hold that “[t]he constitutional barrier is raised when it is the Government that unlawfully intrudes on legal strategy conferences, as when it eavesdrops by electronic means, or when it ‘plants’ a spy in the legal conference.”115 The Amended Complaint contains no such allegations regarding Plaintiffs’ communications with their public defenders. Moreover, not all communications between counsel and client are confidential or intended to be confidential. Plaintiffs do not allege that the communications Mr. Remick and Mr.
112 Id. ¶¶ 31, 33, 195. 113 United States v. Brugman, 655 F.2d 540, 546 (4th Cir. 1981) (citing Glasser v. United States, 315 U.S. 60, 62 (1942)). 114 Id. (citing Weatherford v. Bursey, 429 U.S. 545 (1977)). 115 United States v. Rosner, 485 F.2d 1213, 1227 (2d Cir. 1973); see also Brugman, 655 F.2d at 546; United States v. Dyer, 821 F.2d 35, 38 (1st Cir. 1987).
21

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 22 of 44
Lloyd had with their public defenders at their initial appearances pertained to confidential matters or were intended to be confidential. And while Plaintiffs generally allege that the State’s courthouses lack private spaces for indigent defendants to meet and communicate with their public defenders,116 the Amended Complaint contains no allegation that private spaces are not made available at other facilities, such as the jails and detention centers at which Plaintiffs are held in custody. It is not reasonable to infer that private spaces at other facilities are not made available for Plaintiffs and their public defenders to meet and communicate.
Therefore, the Amended Complaint fails to sufficiently allege a concrete and particularized denial of Plaintiffs’ ability to engage in confidential attorney-client communications.
No factual allegations of being pressured to enter plea agreements Couched in the allegation regarding Mr. Remick’s meeting with his public defender at his initial appearance, is the statement that: Other defendants assigned to the same public defender were in a line waiting to meet with the public defender; because of the wait, some defendants were incented to accept a plea deal because, if a plea deal was rejected, defendant would have to go to the back of the line, and wait at least one more hour to again speak with the public defender.117 The Amended Complaint also alleges that “[s]ome Plaintiffs, like [Mr.] Ricks and [Mr.] Timms have been detained in jail for over a month, increasing the pressure to take a deal that is in the long term not to their advantage but has the potential immediate advantage of getting out of jail and being able to go back to work.”118
116 Amended Complaint ¶¶ 158-60. 117 Id. ¶ 31. 118 Id. ¶ 196.
22

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 23 of 44
These are not allegations that Mr. Remick, Mr. Ricks, or Mr. Timms were pressured by someone to enter plea agreements. Indeed, there are no allegations that any Plaintiff was ever pressured by a public defender or anyone else to enter a plea agreement. The first allegation is presumably an opinion of Mr. Remick that on the day of his initial appearance, “[o]ther defendants” felt incentivized to enter plea agreements to avoid waiting to speak with their public defender.119 That other defendants felt incentivized is conclusory and conjecture. It is also insufficient to show that Mr. Remick was pressured to enter a plea agreement. And even if the allegation pertained to Mr. Remick, having to wait is inconvenient, but does not compel. The allegations show that an opportunity for full discussion—at the back of the line—was available.
Additionally, the allegation regarding Mr. Ricks and Mr. Timms is merely that they felt internal pressure to enter plea agreements.120 This was due to the length of time they had spent in custody, not because their public defenders or anyone else had placed pressure on them.121 Feeling pressure to enter a plea from the circumstances of being charged with a crime and held in custody is not the same as being pressured to coerce a plea agreement. Moreover, there are insufficient factual allegations to support reasonable inference that the length of time Mr. Rick and Mr. Timms have spent in custody has anything to do with their indigence, or some failing on the part of their public defenders or the State’s indigent defense system.
Therefore, allegations are insufficient show that Plaintiffs are being pressured to enter plea agreements.
119 Id. ¶ 31. 120 Id. ¶ 196 121 Id.
23

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 24 of 44
Accordingly, the Amended Complaint fails to allege sufficient facts that Plaintiffs have suffered, are suffering, or will suffer an injury in fact through an actual or complete denial of counsel. There are insufficient allegations that Plaintiffs’ public defenders have entirely failed, or will entirely fail, to subject the prosecution’s cases to meaningful adversarial testing— Cronic’s second situation in which prejudice is presumed
The Amended Complaint alleges that Plaintiffs have had limited contact and communication with their public defenders.122 Plaintiffs argue that these allegations, coupled with the general allegations regarding the State’s public defenders are sufficient to raise reasonable inference that Plaintiffs’ public defenders have entirely failed, or will entirely fail, to subject the prosecution’s cases to meaningful adversarial testing.123
Plaintiffs’ argument relies on the Amended Complaint’s general allegations that many of the State’s public defenders provide services to indigent defendants based on fixed flat fee contracts with the State’s counties.124 Plaintiffs submit that these contracts financially incentivize public defenders to spend as little time as possible working on an indigent defendant’s case.125 Plaintiffs also rely on their generalized and conclusory allegations that many of the State’s public defenders are overworked and rarely make discovery or other pretrial motions;126 that the State and its counties do not adequately compensate, train, or supervise public defenders;127 and that there are no measures in place to assure that the State’s public defenders are qualified to subject
122 Id. ¶¶ 31-36, 193. 123 Plaintiffs’ Opposition at 20-21. 124 Amended Complaint ¶¶ 10-12, 104, 110, 117-20, 126-27, 129, 134, 154, 169, 172, 190 125 Id. 126 Id. ¶¶ 12, 103, 109, 118, 142, 144-49, 157, 173-75, 177, 179-80, 182, 186, 190. 127 Id. ¶¶ 10, 12, 100, 103, 108-09, 118-20, 130, 132, 134, 139-40, 142, 153-54, 170-72, 187, 190.
24

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 25 of 44
criminal cases to meaningful adversarial testing.128 Additionally, Plaintiffs refer to national standards for public defenders and findings from various studies of the State’s indigent defense system that have identified issues with the use of flat fee contracts and the high caseloads, low compensation, and lack of supervision and training of public defenders.129
The issues with the State’s indigent defense system and its public defenders raised by Plaintiffs and the findings of the cited studies are certainly cause for concern. But these types of generalized and conclusory allegations are not sufficient to demonstrate that Plaintiffs’ public defenders have entirely failed, or will entirely fail, to subject the prosecution’s cases to meaningful adversarial testing.130
The United States Supreme Court has made clear that for an attorney to entirely fail to subject the prosecution’s case to meaningful adversarial testing “the attorney’s failure must be complete.”131 It is not enough to allege that “counsel failed to [oppose the prosecution] at specific points.”132 Such allegations may support a claim of ineffective assistance of counsel under the test of Strickland v. Washington,133 where counsel’s performance and prejudice to the defendant are analyzed after the defendant’s conviction.134 But they are not sufficient for a denial of counsel claim under Cronic, where prejudice to the defendant is presumed.135 Under Cronic,
128 Id. ¶¶ 14, 98-99, 101, 104, 107, 109, 130, 132-34, 137, 140, 142, 144-45, 190. 129 Id. ¶¶ 21-23, 77-84, 89-92, 102, 107, 143. 130 Plaintiffs also ignore, gloss over, or attempt to diminish the role of the 2016 amendment to Utah’s Indigent Defense Act. Amended Complaint ¶¶ 26, 62-70, 105; Plaintiffs’ Opposition at 4, n.12. This amendment created the Utah Indigent Defense Commission and an Indigent Defense Resources Restricted Account to address the precise issues with Utah’s indigent defense system and its public defenders that Plaintiffs and the cited studies identify. Utah Code Ann. §§ 77-32-801(1)-(2), 804(1), 805(2)-(5). 131 Bell, 535 U.S. at 697. 132 Id. 133 466 U.S. 668, 688, 694 (1984). 134 Bell, 535 U.S. at 697-98. 135 Id. at 696-97.
25

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 26 of 44
the allegations must demonstrate that “counsel failed [or will fail] to oppose the prosecution throughout the . . . proceeding as a whole . . . .”136
Again, the alleged lack of contact and communication between Plaintiffs and their public defenders is disheartening, and the generalized allegations regarding public defenders in the State are troubling. But the Amended Complaint contains no allegations specific to Plaintiffs’ public defenders. Their experience in criminal defense and qualifications are unknown. Whether they have flat fee contracts with counties is unknown. And even if it were reasonable to infer that they do have flat fee contracts, their caseloads and the amount of their compensation and expenses are unknown. To assume that Plaintiffs’ public defenders are underqualified, overworked, underpaid, and have not been provided the resources necessary for a complete defense is conjecture.
Moreover, the Amended Complaint offers only limited facts regarding Plaintiffs’ underlying charges and criminal cases.137 Whether Plaintiffs’ public defenders have received discovery from the government and whether discovery is ongoing is unknown. The extent to which investigative resources or expert witnesses are needed is unknown. Whether trials are scheduled is unknown. And whether there will be a need for the filing of pretrial motions is unknown. On this record, it is unreasonable to infer that Plaintiffs’ public defenders are spending, or will spend, so little time working on Plaintiffs’ cases as to render their representation constitutionally inadequate.
136 Id. at 697. 137 Amended Complaint ¶¶ 31-36.
26

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 27 of 44
Therefore, the Amended Complaint fails to allege sufficient facts that Plaintiffs have suffered, are suffering, or will suffer an injury in fact through their public defenders entirely failing to subject the prosecution’s cases to meaningful adversarial testing. There are insufficient allegations that Plaintiffs’ public defenders have been called upon to render assistance under circumstances where competent counsel very likely could not— Cronic’s third situation in which prejudice is presumed
Plaintiffs maintain that they do not have a meaningful relationship with their public defenders because of an alleged lack of contact and communication.138 Plaintiffs argue that in the absence of a meaningful relationship with their public defenders, no competent representation can take place.139 Plaintiffs further argue that their public defenders cannot render adequate assistance due to their excessive caseloads, the lack of physical space for indigent defendants to meet with public defenders in the State’s courthouses, and the conflicts inherent with flat fee contracts between public defenders and the State’s counties.140
Under Cronic, “only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.”141 The factual circumstances must show “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”142
138 Id. ¶¶ 31-36, 193; Plaintiff’s Opposition at 21-23. 139 Plaintiff’s Opposition at 21-23. 140 Id. at 23. 141 Cronic, 466 U.S. at 662. 142 Id. at 659-60.
27

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 28 of 44
By way of example, the United States Supreme Court identified circumstances that
justify such a presumption, and those that do not.143 Powell v. Alabama144 is a case with
circumstances justifying a presumption of prejudice:
The defendants had been indicted for a highly publicized capital offense. Six days before trial, the trial judge appointed ‘all the members of the bar’ for purposes of arraignment. ‘Whether they would represent the defendants thereafter if no counsel appeared in their behalf, was a matter of speculation only, or, as the judge indicated, of mere anticipation on the part of the court.’ On the day of trial, a lawyer from Tennessee appeared on behalf of persons ‘interested’ in the defendants, but stated that he had not had an opportunity to prepare the case or to familiarize himself with local procedure, and therefore was unwilling to represent the defendants on such short notice. The problem was resolved when the court decided that the Tennessee lawyer would represent the defendants, with whatever help the local bar could provide. ‘The defendants, young, ignorant, illiterate, surrounded by hostile sentiment, haled back and forth under guard of soldiers, charged with an atrocious crime regarded with especial horror in the community where they were to be tried, were thus put in peril of their lives within a few moments after counsel for the first time charged with any degree of responsibility began to represent them.’ . . . [U]nder these circumstances the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair.145 On the other hand, Avery v. Alabama146 is a case with circumstances that did not justify a
presumption of prejudice:
[C]ounsel was appointed in a capital case only three days before trial, and the trial court denied counsel’s request for additional time to prepare. Nevertheless, . . . since evidence and witnesses were easily accessible to defense counsel, the circumstances did not make it unreasonable to expect that counsel could adequately prepare for trial during that period of time[.]147
143 Id. at 660-62. 144 287 U.S. 45 (1932). 145 Cronic, 466 U.S. at 660 (quoting Powell, 287 U.S. at 56, 57-58). 146 308 U.S. 444 (1940). 147 Cronic, 466 U.S. at 661 (citing Avery, 308 U.S. at 450-53).
28

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 29 of 44
These examples demonstrate that a presumption of prejudice will arise only in extremely rare and fact specific circumstances.148 The possibility of defense counsel adequately preparing for a capital trial in three days under any circumstances seems unlikely, but it was not so remote and inherently unfair as to justify a presumption of prejudice in Avery. This is not to say that a defendant facing similar circumstances to those in Avery has no potential claim for a violation of the right to counsel. Such a defendant may still assert a post-trial claim for ineffective assistance of counsel under Strickland, where counsel’s actual performance and prejudice to the defendant are analyzed.149 But a defendant may not use Cronic’s presumption of prejudice to supplant the postconviction procedure of analyzing the right to counsel under Strickland.150
The allegations of Plaintiffs’ Amended Complaint are insufficient to show, and fail to create reasonable inference, that Plaintiffs’ public defenders have been called upon to render assistance under circumstances in which competent counsel very likely could not. There are no allegations specific to Plaintiffs’ public defenders and only minimal allegations regarding Plaintiffs’ underlying criminal cases. Their public defenders’ experience, qualifications, caseloads, and compensation and expenses are unknown. Whether their public defenders have received discovery, whether discovery is ongoing, and whether trials are scheduled is unknown. And the extent to which investigative resources, expert witnesses, and the filing of pretrial motions are needed is unknown.
Plaintiffs’ Amended Complaint does allege a lack of contact and communication between Plaintiffs and their public defenders.151 But without further context, it fails to allege sufficient
148 Hooks v. Workman, 689 F.3d 1148, 1186 (10th Cir. 2012) (“Plainly, this kind of case will be an ‘unusual’ one.”). 149 Bell, 535 U.S. at 697-98. 150 Id. 151 Amended Complaint ¶¶ 31-36, 193.
29

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 30 of 44
facts to permit reasonable inference that, as Plaintiffs’ criminal cases progress towards trial, Plaintiffs and their public defenders will not develop a meaningful relationship so as to permit competent representation.
Even considering the generalized and conclusory allegations regarding the State’s indigent defense system and its public defenders, Plaintiffs’ Amended Complaint fails to show circumstances akin to Powell in which the likelihood that counsel may perform as an effective adversary is so remote as to make Plaintiffs’ cases inherently unfair. Plaintiffs allege that the State’s public defenders are not paid or given resources commensurate to the State’s prosecutors.152 But parity of compensation is only one factor in determining the appropriate compensation for a public defender in a particular case.153 And a lack of parity does not automatically equate to circumstances in which competent counsel cannot render assistance. Such is not a reasonable inference.
Plaintiffs allege a lack of physical space in the State’s courthouses at which indigent defendants can meet with their public defenders.154 But Plaintiffs fail to allege that such spaces are not made available elsewhere, such as at the jails and detention centers where the indigent defendants are held in custody. And it is not reasonable to infer that the alleged issues arising from the public defenders’ flat fee contracts with the State’s counties are so great and inherently unfair as to justify a presumption that the public defenders cannot render constitutionally adequate representation to their indigent clients.
Indeed, “[t]he Tenth Circuit has applied Cronic only where the evidence ‘overwhelmingly established that [the] attorney abandoned the required duty of loyalty to his
152 Id. ¶¶ 10, 106, 140, 152, 170-72. 153 Utah Code Ann. § 77-32-304.5(2)(b). 154 Amended Complaint ¶¶ 31, 33, 158-60, 195.
30

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 31 of 44
client . . . apparently with the intention to weaken his client’s case.’”155 The circumstances Plaintiffs allege, while troublesome, do not rise to the level of Avery, let alone Powell.
Therefore, the Amended Complaint fails to allege sufficient facts that Plaintiffs have suffered, are suffering, or will suffer an injury in fact through their public defenders being called upon to render assistance under circumstances in which competent counsel very likely could not.
The Amended Complaints fails to allege sufficient circumstances to constitute an actual or constructive denial of Plaintiffs’ right to counsel under Cronic, where prejudice to Plaintiffs is presumed. Thus, it fails to demonstrate an actual or imminent invasion of Plaintiffs’ right to counsel which is concrete and particularized. The alleged harms to Plaintiffs are conjectural and hypothetical. The judiciary may not intervene when no actual harm is present or imminent.156 Plaintiffs have simply alleged their status as indigent defendants that are subject to a governmental institution that may not be organized or managed properly.157 “It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.”158 Therefore, Plaintiffs fail to sufficiently allege an injury in fact for purposes of standing.
155 Lockett v. Trammel, 711 F.3d 1218, 1247 (10th Cir. 2013) (quoting Turrentine v. Mullin, 390 F.3d 1181, 1208 (10th Cir. 2004)). 156 Casey, 518 U.S. at 350. 157 Id. 158 Id. at 349.
31

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 32 of 44
Plaintiffs Fail to Sufficiently Demonstrate a Causal Connection Between Their Alleged Injury and Defendants’ Conduct
The second element of standing “[t]o invoke federal jurisdiction [requires] a plaintiff [to]
show that his or her injury is ‘fairly traceable to the challenged action of the defendant, and not
the result of the independent action of some third party not before the court.’”159 “Article III’s
causation requirement demands ‘something less than the concept of ‘proximate cause.’’”160 But
“Article III does at least require proof of a substantial likelihood that the defendant’s conduct
caused plaintiff’s injury in fact.”161 And “[t]he plaintiff’s burden of demonstrating causation is
not satisfied when ‘[s]peculative inferences are necessary to connect [the plaintiff’s] injury to the
challenged actions [or inaction].’”162
Additionally, “[w]hen the suit is one challenging the legality of government action or
inaction, the nature and extent of facts that must be [alleged] in order to establish standing
depends considerably upon whether the plaintiff is . . . an object of the action (or forgone action)
at issue.”163 Expounding on this principle, the United States Supreme Court stated:
If [the plaintiff] is [the object], there is ordinarily little question that the action or inaction [of the government] has caused [the plaintiff’s] injury . . . . When, however, . . . a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation . . . ordinarily hinge[s] on the response of the regulated (or regulable) third party to the government action or inaction—and perhaps on the response of others as well. The existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict, and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation . . . . Thus,
159 Gandy, 416 F.3d at 1156 (quoting Lujan, 504 U.S. at 560). 160 Id. (quoting Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003)). 161 Id. 162 Id. at 1157 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45-46 (1976)). 163 Lujan, 504 U.S. at 561.
32

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 33 of 44
when the plaintiff is not . . . the object of the government action or inaction [the plaintiff] challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.164 Plaintiffs’ Amended Complaint includes numerous allegations regarding Defendants’ failure to fund, administer, and oversee the State’s indigent defense system.165 Each of Plaintiffs’ claims assert that these alleged failings are the cause of the denial of Plaintiffs’ right to counsel.166 In Gideon v. Wainwright, the United States Supreme Court held that the United States Constitution requires states to furnish counsel to persons charged with crimes, who are unable to afford or obtain counsel.167 But Gideon left open how states were to fund and administer their respective indigent defense systems. Through its Indigent Defense Act, Utah has delegated the provision of indigent defense services to its counties and municipal legislative bodies.168 Plaintiffs cite to no authority, and do not argue, that such a delegation is constitutionally impermissible on its face. Indeed, Plaintiffs acknowledge that “a state may delegate obligations imposed by either the state or U.S. Constitutions,”169 including delegation of “the practical implementation of indigent defense to the [state’s] counties and municipalities . . . .”170 Rather, Plaintiffs maintain that the manner in which the State has delegated indigent defense services to the counties and municipalities—allegedly without funding, administration, or oversight—has caused a systemic denial of Plaintiffs and the proposed class members’ right to
164 Id. at 561-62 (internal quotations and citations omitted; emphasis in original). 165 Amended Complaint ¶¶ 7-8, 10, 14, 19, 58-61, 71-72, 97-101, 103, 107-09, 130-32, 138, 142, 144, 146, 150-51, 158, 190. 166 Id. ¶¶ 198-231. 167 372 U.S. 335. 168 Amended Complaint ¶¶ 8, 57; Utah Code Ann. § 77-32-306. 169 Plaintiffs’ Opposition at 10. 170 Id. at 8.
33

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 34 of 44
counsel.171 Thus, while Plaintiffs are the ultimate beneficiaries of the indigent defense services provided, they themselves are not the object of the challenged action or inaction of Defendants in this case. Instead, the asserted denial of the right to counsel arises from Defendants’ allegedly unlawful lack of regulation of the State’s counties and municipalities. And because the counties and municipalities are independent actors not before the court, Plaintiffs must meet the higher burden of adducing facts showing that the counties and municipalities’ provision of indigent defense services has been or will be made in such manner as to produce causation.172
Plaintiffs’ Amended Complaint fails to meet this burden. Plaintiffs’ assert: [T]he State has an obligation to ensure that its counties are capable of meeting the delegated functions and have the means to do so. [It] also must assure that the counties have in fact discharged any delegated functions by providing state oversight to assure that the defense being provided by the counties passes constitutional muster. If the counties cannot meet the delegated obligations, the State—as the original obligor—must step in.173 This may very well be true. But the Amended Complaint does not allege that the State’s counties and municipalities are not capable of meeting the delegated functions of providing indigent defense services in the absence of funding, administration, and oversight from Defendants. Rather, the Amended Complaint alleges that “Defendants have allowed a system to develop in which counties and municipalities are not providing timely and competent legal counsel, are denying public defenders investigatory resources necessary for a complete defense, and creating conditions making it practically impossible for public counsel to provide undivided loyalty to their clients.”174 This allegation is conclusory and is not supported by factual allegations.
171 Id. at 9-12. 172 Lujan, 504 U.S. at 562. 173 Id. at 9. 174 Amended Complaint ¶ 95; see also id. ¶ 59.
34

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 35 of 44
The Amended Complaint reads as though it were a brief, written in response to a motion to dismiss, rather than a complaint which alleges facts to support its causes of action. And at times it reads as though the public defenders are the plaintiffs, claiming unfairness in the contracts they negotiate with the State’s counties and municipalities.175 The Amended Complaint is rife with anecdote, allegations of generalized grievances, and argument regarding the effect of how the State’s counties and municipalities select, compensate, train, and supervise public defenders.176 But it is missing factual allegations specific to these Plaintiffs to support and demonstrate these generalized grievances.
Plaintiffs offer no facts of specific cases in which these grievances have occurred or are occurring. They do not identify or provide facts regarding any public defender that is unqualified, overworked, or unable to competently represent his or her indigent clients because of the counties and municipalities’ actions. And in the absence of these types of factual allegations, it is speculative to infer that the alleged denial of Plaintiffs’ right to counsel is caused by the counties and municipalities’ actions. Likewise, it is speculative to infer that the alleged denial of counsel has occurred or is occurring on a systemic level because of Defendants’ alleged failure to fund, administer, and oversee the counties and municipalities’ provision of indigent defense services. The alleged denial of counsel may simply be caused by the action or inaction of certain public defenders in certain cases, which is appropriately the subject matter of an individual defendant’s postconviction claim for ineffective assistance of counsel under Strickland.177
175 Id. ¶¶ 9-14, 112-129, 139-41, 143, 148-57, 170-80. 176 Id. ¶¶ 9-14, 21-25, 61, 70-73, 75-85, 92, 94-96, 104, 108-120, 126-138, 142-43, 145-49, 150-61, 166-80, 182-91. 177 Bell, 535 U.S. at 697-98.
35

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 36 of 44
Certainly, Plaintiffs have identified issues that may arise with the use of flat fee contracts to retain public defenders.178 But Plaintiffs cite no authority holding that the counties and municipalities’ use of these types of contracts results in a per se denial of the right to counsel. Facts are needed to allow reasonable inference that Plaintiffs have suffered or are suffering harm because of these contracts. Likewise, Plaintiffs have identified issues that may arise from a lack of supervision and training of public defenders.179 But facts are needed to allow reasonable inference that a lack of supervision and training has caused or is causing harm to Plaintiffs. And facts are needed to allow reasonable inference that a lack of State funding is the cause of Plaintiffs’ alleged harm.
Utah’s Indigent Defense Act sets forth how the State’s counties and municipalities are to obtain counsel for indigent defendants;180 when an indigent defendant is entitled to counsel;181 the minimum standards for indigent defense;182 and how to determine appropriate compensation and reimbursement of expenses for counsel.183 The Act creates trust funds and a restricted account which are dedicated to the provision of indigent defense services.184 The Act enables the State’s counties and municipalities to use public funds and levy taxes to pay for indigent defense services.185 And the Act establishes a commission to assist the state in meeting the state’s obligations for the provision of indigent defense services.186 Given this statutory framework, and
178 Amended Complaint ¶¶ 9-12, 81, 110, 113-29, 173-88. 179 Id. ¶¶ 10, 13-14, 19-24, 77-84, 89-92, 98-104, 107-09, 130, 132-37, 142-49, 151, 154-61, 173-91. 180 Utah Code Ann. § 77-32-306. 181 Id. § 77-32-304(1). 182 Id. §§ 77-32-201(12), 301. 183 Id. §§ 77-32-304(3), 304.5, 305, 305.5. 184 Id. §§ 77-32-502, 601, 805. 185 Id. §§ 77-32-307(1), (3). 186 Id. §§ 77-32-801, 804.
36

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 37 of 44
the absence of factual allegations in Plaintiffs’ Amended Complaint, it is speculative to infer that Plaintiffs’ alleged denial of counsel is fairly traceable to the challenged conduct of Defendants, and not the result of the independent action of some third party—the counties and municipalities or individual public defenders—not before the court.
Therefore, the Amended Complaint fails to sufficiently demonstrate causation for purpose of establishing Plaintiffs’ standing to sue.
The Declaratory Relief Plaintiffs Seek Does Not Meet the Standard for Redressability The third element of standing requires a plaintiff to establish that it is “likely, as opposed
to merely speculative, that [the plaintiff’s alleged] injury will be redressed by a favorable [court] decision.”187 Plaintiffs have limited the requested relief in their Amended Complaint “to present a single issue for declaratory judgment: whether the Defendants are complying with the U.S. and Utah Constitutions in the way they ensure (or fail to ensure) the provision of indigent defense services statewide.”188
“It is well established that what makes a declaratory judgment action ‘a proper judicial resolution of a ‘case or controversy’ rather than an advisory opinion—is [ ] the settling of some dispute which affects the behavior of the defendant toward the plaintiff.’”189 “A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot.”190 “The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.”191 “It must be a
187 Lujan, 504 U.S. at 561 (internal quotations omitted). 188 Plaintiffs’ Opposition at 2. 189 Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994) (quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987)) (alteration in original), superseded on other grounds as recognized in Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). 190 Aetna Life Ins. Co. of Hartford, Connecticut v. Haworth, 300 U.S. 227, 240 (1937). 191 Id. at 240-41.
37

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 38 of 44
real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”192
Declaratory relief cannot be “used as preparation for further litigation . . . .”193 A declaratory judgment must terminate the parties’ controversy.194 “[I]t must be the effect of the court’s judgment on the defendant that redresses the plaintiff’s injury, whether directly or indirectly.”195 “If courts may simply assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees, then redressability will always exist. Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.”196
Plaintiffs assert that “[b]ecause the ongoing crisis [with Utah’s indigent defense system] is a state problem, permanently solving it requires a state remedy.”197 And Plaintiffs maintain that if “Defendants are failing in their obligations . . . then the methods by which that system is brought into constitutional compliance will be left to the Defendants—not the Court.”198 Plaintiffs argue a declaratory judgment determining that Defendants are not complying with the United States and Utah Constitutions in the provision of indigent defense services will remedy
192 Id. at 241; see also Miller v. Weaver, 66 P.3d 592, 597 (Utah 2003) (Under Utah law, “[a] justiciable controversy authorizing entry of a declaratory judgment is one wherein the plaintiff is possessed of a protectible interest at law or in equity and the right to a judgment, and the judgment, when pronounced, must be such as would give specific relief.”). 193 Shannon v. Sequeechi, 365 F.2d 827, 829 (10th Cir. 1966). 194 Id. 195 Gandy, 416 F.3d at 1159. 196 Id. (quoting Franklin v. Massachusetts, 505 U.S. 788, 825 (Scalia, J., concurring)). 197 Plaintiffs’ Opposition at 13. 198 Id. at 2 (emphasis in original).
38

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 39 of 44
the alleged denial of Plaintiffs’ right to counsel. Plaintiffs argument relies on the United State Supreme Court’s analysis in Steffel v. Thompson.199
In Steffel, the issue was “whether declaratory relief is precluded when a state prosecution has been threatened, but is not pending, and a showing of bad-faith enforcement or other special circumstances has not been made.”200 The petitioner was threatened with arrest for criminal trespass for distributing anti-war handbills on the exterior sidewalk of a shopping center.201 He filed a complaint in federal court seeking, among other things, a declaratory judgment that the state’s criminal trespass statute was being applied in violation of his First and Fourteenth Amendment rights.202
The Supreme Court determined that the petitioner had demonstrated an injury in fact: “In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”203 The Court also determined that declaratory relief would not interfere with state criminal proceedings:
When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.204 And the Court addressed the likely effect a declaratory judgment would have: Of course, a favorable declaratory judgment may . . . be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear . . . . [T]he
199 415 U.S. 452 (1974). 200 Id. at 454. 201 Id. at 455-56. 202 Id. at 454, 456. 203 Id. at 459. 204 Id. at 462.
39

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 40 of 44
declaration may still be able to cut down the deterrent effect of an unconstitutional statute. The persuasive force of the . . . opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the legislature may repeal the statute and start anew.205 The Court ultimately held that “federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.”206 The inapplicability of Steffel to Plaintiffs’ claim for declaratory relief is obvious. Steffel is factually distinguishable. Its petitioner challenged the constitutionality of a single state criminal statute as applied to his conduct when no criminal prosecution was pending.207 A declaration of unconstitutionality would render later convictions under that statute for similar conduct reversible.208 It would also have the likely effect of changing the future conduct of state prosecutors and courts in applying the statue, and state legislators in repealing the statute.209 And because no prosecution was pending, the declaratory judgment was not interfering with state criminal proceedings.210 Also, Plaintiffs do not challenge the constitutionality of a state statute as applied to their conduct. Rather, they challenge the constitutionality of the manner in which Defendants fund, administer, and oversee the State’s indigent defense system in effort to control or prevent the
205 Id. at 469 (quoting Perez v. Ledesma, 401 U.S. 82, 124-26 (1971) (Brennan, J., concurring in part and dissenting in part)). 206 Id. at 475. 207 Id. at 454. 208 Id. at 469. 209 Id. 210 Id. at 462.
40

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 41 of 44
occurrence of specific events that might take place in the course of future state criminal trials.211 The declaratory judgment Plaintiffs seek will not render Utah’s Indigent Defense Act, or any provision therein, unconstitutional. It will not have any effect on Plaintiffs’ underlying criminal cases—their cases will still proceed to disposition with the same public defenders representing them. The declaratory relief will not ensure the State’s public defenders will render constitutionally effective assistance, or prohibit them from negotiating flat fee contracts with the State’s counties and municipalities. The State’s prosecutors will not be likely to stop pursuing charges against indigent defendants until corrections to the State’s indigent defense system are made. Nor will the State’s courts be likely to dismiss prosecutions against indigent defendants until corrections are made. Simply put, the declaratory relief will not terminate a controversy by remedying Plaintiffs’ alleged injury.
A declaratory judgment could cause the State Legislature to take a hard look at Utah’s Indigent Defense Act’s funding, administration, and oversight provisions. It could also cause the State Legislature and the State’s counties and municipalities to reconsider the use of flat fee contracts to retain public defenders. But again, Plaintiffs are not challenging the State’s delegation of indigent defense services to its counties and municipalities.212 Nor do they seek declaration that the use of flat fee contracts is unconstitutional per se. And the State Legislature has already acted by amending the Act in 2016 to create the Utah Indigent Defense Commission and an Indigent Defense Resources Restricted Account to address the issues with the indigent defense system that Plaintiffs raise.213
211 Amended Complaint ¶¶ 198-231. 212 Plaintiffs’ Opposition at 8, 10. 213 Utah Code Ann. §§ 77-32-801(1)-(2), 804(1), 805(2)-(5).
41

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 42 of 44
The declaratory relief Plaintiffs’ seek is either mooted by the 2016 amendment, or prematurely determines that the amendment is insufficient to effectuate the changes to the State’s indigent defense system Plaintiffs desire. On this record, it is speculative to assume the 2016 amendment will be insufficient, and it is speculative that the State Legislature would take additional action beyond the 2016 amendment if a declaratory judgment were entered.
Moreover, unlike Steffel, where no criminal prosecution was pending, Plaintiffs’ underlying criminal cases are ongoing. A declaratory judgment, or any later injunctive relief (which Plaintiffs allude may be necessary214), may impermissibly interfere with the ongoing state criminal prosecutions.215
“Sensitive to principles of equity, comity, and federalism,” the United States Supreme Court has recognized “that federal courts should ordinarily refrain from enjoining ongoing state criminal prosecutions.”216 “[A] pending state proceeding, in all but unusual cases, would provide the federal plaintiff with the necessary vehicle for vindicating his constitutional rights, and, in that circumstance, the restraining of an ongoing prosecution would entail an unseemly failure to give effect to the principle that state courts have the solemn responsibility, equally with the federal courts to guard, enforce, and protect every right granted or secured by the constitution of the United States . . . .”217 “[I]n cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken
214 Plaintiffs’ Opposition at 15. 215 O’Shea v. Littleton, 414 U.S. 488, 500-502 (1974) 216 Steffel, 415 U.S. at 460. 217 Id. at 460-61 (internal quotations omitted).
42

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 43 of 44 into consideration by federal district courts in determining whether to issue a declaratory judgment . . . .”218
This is not the unusual case where a pending state proceeding will fail to provide Plaintiffs with the necessary vehicle allege to vindicate their constitutional rights. The precedent of both Cronic and Strickland dictate that Plaintiffs may pursue postconviction claims for an actual or constructive denial of their right to counsel in their criminal cases. This alternate avenue for relief is better suited to redress Plaintiffs’ alleged injury.
Therefore, the declaratory relief Plaintiffs seek does not meet the standard for redressability.
Accordingly, because Plaintiffs fail to sufficiently allege and demonstrate an injury in fact and causation, and because the declaratory relief they seek does not meet the standard of redressability, Plaintiff lack standing.
218 Id. at 461 (internal quotations omitted). 43

Case 2:16-cv-00789-DN Document 78 Filed 03/23/18 Page 44 of 44
ORDER IT IS HEREBY ORDERED that: (1) Defendants’ Motion to Dismiss219 is GRANTED; (2) Plaintiffs’ Motion for Class Certification220 is MOOT; (3) Movant Roger Bryner’s Motion to Intervene221 is MOOT; and (4) Plaintiffs’ Motion to Lift Stay and for Entry of Scheduling Order Regarding Plaintiffs’ Motion for Class Certification222 is MOOT. The Clerk is directed to close the case. Signed March 23, 2017.
BY THE COURT ________________________________________
District Judge David Nuffer
219 Docket no. 28, filed Aug. 5, 2016. 220 Docket no. 16, filed July 26, 2016. 221 Docket no. 59, filed Apr. 6, 2017. 222 Docket no. 71, filed July 25, 2017.
44