State v. Earl , 2015 Utah LEXIS 27 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter.
2015 UT 12
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
STATE OF UTAH,
Appellee,
v.
TARA EARL,
Appellant.
———————
No. 20120991
Filed January 27, 2015
———————
Third District, Salt Lake
The Honorable Katherine Bernards-Goodman
No. 121902921
———————
Fourth District, Provo Dep‘t
The Honorable Steven L. Hansen
No. 111403103
———————
Attorneys:
Jeff Buhman, Dianne R. Orcutt, D. Adam Miller, Salt Lake City,
for appellee
Sean P. Hullinger, Lehi, for appellant
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, AND JUSTICE PARRISH joined.
———————
JUSTICE LEE, opinion of the Court:
¶1 This is a consolidated interlocutory appeal in two pending
criminal cases against Tara Earl. In these cases and in several
related ones, we consider the applicability of legislative
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Opinion of the Court
amendments to the Indigent Defense Act (IDA), Utah Code
sections 77-32-101 through -704. The amended provisions override
this court‘s construction of the prior version of the statute in State
v. Parduhn, 2011 UT 55, ¶¶ 23–30, 283 P.3d 488, by foreclosing an
indigent defendant in a criminal action from retaining private
counsel while requesting public defense resources from the
government. See UTAH CODE § 77-32-303(2). They do so by
generally conditioning an indigent defendant‘s eligibility for such
resources on the retention of publicly funded counsel. Id.
¶2 The question in these and related cases1 is the applicability
of these amendments to certain cases filed or pending around the
time the statute became effective (May 8, 2012). In the two
criminal cases against Earl, two district court judges denied her
requests for government-funded defense resources. We affirm.
First, we identify the conduct being regulated by the IDA—the
exercise of a mature right to indigent defense resources. Second,
because the law in effect at the time that Earl exercised that right
was the amended version of the IDA, we affirm the district court‘s
decision denying Earl‘s motion. And finally, we reject Earl‘s
constitutional and statutory challenges to the application of the
IDA amendments to her case.
I
¶3 Earl stands charged with Unlawful Sexual Conduct
involving a 16- or 17-year-old, a third-degree felony, in both the
Third District Court and Fourth District Court. The criminal
information in the Fourth District case was filed on November 21,
2011. In the Third District case, the information was filed on
March 26, 2012.
¶4 At all relevant times, Earl has been represented by private
counsel. She eventually filed an affidavit of indigency, however,
which was accepted by both district courts. And she filed motions
for government-funded defense resources in both cases. The
Fourth District motion was filed on May 8, 2012. The Third
District motion was filed on November 29, 2012.
1 See State v. Perez, 2015 UT 13, __ P.3d __; State v. Folsom, 2015
UT 14, __ P.3d __; State v. Steinly, 2015 UT 15, __ P.3d __.State v.
Rodriguez-Ramirez, 2015 UT 16, __ P.3d __.
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Opinion of the Court
¶5 In support of her motions, Earl asserted that the pre-
amendment version of the IDA applied to her case because it was
in effect at the time she was charged, and because the IDA
amendments diminished her substantive right to counsel and thus
cannot be applied retroactively. She also argued that by depriving
her of state funding for her private counsel of choice, the
amended IDA violated her constitutional right to effective
assistance of counsel, due process, equal protection, and uniform
operation laws. The State countered that the amended IDA
applied because it had taken effect by the time Earl filed her
motions for defense resources, and that in any case the
amendments were procedural and thus retroactively applicable to
cases already pending at the time they went into effect.
¶6 In addition to arguing in support of a vested right under
the unamended version of the IDA, Earl also advanced separate
challenges to the legality of the denial of her request for funding
even under the amended statute. In the Fourth District, Earl
asserted that Utah County‘s contract with its defense services
provider did not comply with the notice and public bidding
requirements set forth in the Utah Procurement Act, Utah Code
Title 63G, Chapter 6a. And in the Third District, Earl challenged
the constitutionality of the provision of the amended IDA
conditioning an indigent defendant‘s eligibility for such resources
on the retention of publicly funded counsel.
¶7 Both district courts denied Earl‘s motions and rejected her
alternative challenges to the legality of the denial of her requests
under the amended IDA. In denying the motion in the Fourth
District, Judge Hansen concluded that application of the amended
IDA did not amount to the ―retroactive‖ application of law to
events completed before its enactment. Thus, Judge Hansen
suggested that the law did not ―‗attach[] new legal consequences
to events completed before its enactment,‘‖ but instead merely
applied prospectively to Earl‘s request for public funding, which
was filed after the law went into effect. And on that basis Judge
Hansen held that Earl‘s motion was ―subject to the new statute as
it was the governing law at the time of the request,‖ while
suggesting in the alternative that the statute was ―procedural and
may thus be applied retroactively.‖
¶8 Judge Hansen also rejected Earl‘s assertion that ―the
limitations of the new statute [did] not apply in this case because
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Opinion of the Court
Utah County ha[d] not contracted with a defense service
provider‖ in a manner in compliance with the public notice and
bidding requirements of the state procurement statute, Utah Code
sections 63G-6a-406, 602. The basis of his holding on this point
was the conclusion that even if the Public Defender‘s Association
could not qualify as a ―defense services provider‖ under Utah
Code section 77-32-201(4), the county had satisfied the statute in
an alternative manner, by establishing a ―county legal defender‘s
office‖ under Utah Code section 77-32-302(2)(a).
¶9 The Third District also denied Earl‘s motion. Judge
Bernards-Goodman concluded that the 2012 amendments to the
IDA ―constitute a procedure change‖ to the law and therefore
governed Earl‘s motion. And she also rejected Earl‘s constitutional
challenge to the amended IDA, holding that her ―rights under the
Sixth Amendment of the U.S. Constitution and Article I, Section
12 of the Utah State Constitution are not violated by application of
the current version of the Indigent Defense Act.‖
¶10 Earl filed petitions for interlocutory appeal, which were
granted. We review the district courts‘ decisions de novo,
according no deference to their legal determinations of which
version of the IDA applies to Earl‘s motions, or to their analysis of
the grounds for challenging the legality of the provision of the
amended IDA conditioning funding for defense resources on the
retention of publicly funded counsel. See Vorher v. Henriod, 2013
UT 10, ¶ 6, 297 P.3d 614 (stating that the applicability of a statute
is a matter of statutory interpretation, and thus a question of law,
which we review de novo).
II
¶11 Earl challenges the district courts‘ decisions denying her
motions for funding of defense resources under the amended
version of the IDA and also asserts alternative legal challenges to
the application of the 2012 amendments in this case. First, she
asserts that she acquired a ―vested‖ right to proceed under the
―law in effect at the time of [her] underlying primary conduct,‖
meaning ―the conduct giving rise to [the] criminal charge[s]‖
against her. Second, even assuming that the amended IDA
applies, Earl challenges the operative provision of the amended
statute on various constitutional grounds. And finally, echoing
points raised in the Fourth District proceeding below, Earl asserts
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Opinion of the Court
that the counties failed to follow notice and public bidding
requirements in the state procurement statute in establishing a
―defense services provider‖ under Utah Code section 77-32-202(4).
We reject all three arguments and affirm.
A
¶12 Earl‘s first argument fails for reasons identified by Judge
Hansen in the Fourth District decision before us on this appeal. As
Judge Hansen noted, the rule against retroactivity proscribes the
retroactive application of a newly enacted statute ―in a case
arising from conduct antedating the statute‘s enactment‖ in a
manner that ―upsets expectations based in prior law.‖ Landgraf v.
USI Film Prods., 511 U.S. 244, 269 (1994). And that principle is
implicated where ―the new provision attaches new legal
consequences to events completed before its enactment.‖ Id. at
270.
¶13 We agree with Judge Hansen that this principle is not
implicated here because the IDA amendments do not attach new
legal consequences to the activity giving rise to the criminal
charges against Earl. And we affirm the decisions in both of the
consolidated cases before us because, as Judge Hansen put it, Earl
―asked the court for public funding on her case after the new
statute became effective,‖ and her ―request is subject to the new
statute as it was the governing law at the time of the request.‖
¶14 This analysis is consistent with a clarification we offered in
in State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829. There we noted
that the line between substance and procedure is not ultimately an
exception to the rule against retroactivity but a tool for identifying
the relevant ―event‖ being regulated by the law in question:
Thus, if a law regulates a breach of contract or a tort,
we apply the law as it exists when the alleged breach
or tort occurs—i.e., the law that exists at the time of
the event giving rise to a cause of action. Subsequent
changes to contract or tort law are irrelevant.
Similarly, if the law regulates a motion to intervene,
we apply the law as it exists at the time the motion is
filed. A change in the procedural rule would not
apply retroactively to prior motions to intervene. We
would not expel a party for failure to conform to a
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Opinion of the Court
newly amended intervention rule in her prior
motions.
Id.
¶15 This framework dictates an affirmance of the district
courts‘ decisions in the cases before us on appeal. The key
question is the identification of the relevant ―event‖ being
regulated by the law in question. And here that event is the
assertion of a mature request for government-funded defense
resources.
¶16 The event at issue is not the alleged conduct of Earl that
gave rise to the criminal charges against her. The IDA, after all,
does not define the elements of the unlawful sexual conduct crime
with which she is charged or dictate a sentence for, or other
consequence of, such conduct. See Landgraf, 511 U.S. at 269–70
(explaining that a law is understood as retroactive if it ―attaches
new legal consequences to events completed before its
enactment‖). Instead, the IDA regulates Earl‘s activity occurring
within the course of the criminal proceedings against her. It
prescribes, specifically, the terms and conditions of the provision
of government-funded defense resources long guaranteed as an
adjunct to the right to counsel under the Sixth Amendment of the
United States Constitution. See Britt v. North Carolina, 404 U.S. 226,
227 (1971) (stating that indigent defendant has a Sixth
Amendment right to ―the basic tools of an adequate defense‖).
¶17 The assertion of that right requires the confluence of three
elements: (a) the legal right to counsel and associated defense
resources, which is generally triggered by the filing of formal
criminal charges;2 (b) the legal right to have those defense
resources provided by the government, which is implicated by a
determination of indigency;3 and (c) the assertion of a request for
2See Kirby v. Illinois, 406 U.S. 682, 688 (1972) (stating the Sixth
Amendment right to counsel attaches ―at or after the time that
adversary judicial proceedings have been initiated against him‖).
3See Gideon v. Wainwright, 372 U.S. 335, 342–44 (1963) (holding
that state courts are required under the Fourteenth Amendment to
provide counsel in criminal cases to represent defendants who are
unable to afford to retain their own counsel); see also UTAH CODE
§§ 77-32-202 & -301 (2012) (outlining procedure for determination
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Opinion of the Court
defense resources, typically by the filing of a formal motion
requesting such resources.4 When these three elements come
together, a defendant‘s assertion of her right to government-
funded defense resources has matured or vested. And as of that
date, the defendant is entitled to the benefit of the law in place at
that time. See Clark, 2011 UT 23, ¶ 13 (explaining that ―we apply
the law as it exists at the time‖ of the event being regulated).
¶18 Earl‘s argument fails under this framework. The assertion
of her mature right to defense resources came on or after the
effective date of the 2012 amendments to the IDA (May 8, 2012).
The charges in both cases were filed before then and private
counsel appeared before that date, but the motions requesting
funding for defense resources were not filed until May 8, 2012 (in
the Fourth District) and November 29, 2012 (in the Third District).
Thus, as of the date of the culmination of Earl‘s assertion of a right
to defense resources, the amended law was in place. Application
of the 2012 amendments was thus appropriate and did not run
afoul of the general rule against retroactivity. We affirm the
district court decisions in both cases before us on that basis.
B
¶19 Earl‘s constitutional claims were properly preserved only
in the Third District proceeding. Her briefing in the Fourth
District failed to present any constitutional analysis, and for that
reason we decline to reach her arguments as applied to that case
on grounds of preservation.5
of indigency, and stating that ―[e]ach county, city, and town shall
provide for the legal defense‖ of a defendant who is an ―indigent
in [a] criminal case[]‖).
4 See UTAH CODE § 77-32-302(1)(a) (2012) (providing that a de-
fense services provider ―shall be assigned to represent each indi-
gent‖ upon ―the indigent[‗s] request[] [for] legal defense‖).
5 See Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 46, 321
P.3d 1054 (stating that to be preserved, ―an issue must be (1)
raised in a timely fashion, (2) be specifically raised, and (3) the
challenging party must introduce supporting evidence or relevant
legal authority. Preservation requires affording the district court a
meaningful opportunity to rule on the ground that is advanced on
appeal, and that implies, at a minimum, not just the invocation of
7
STATE v. EARL
Opinion of the Court
¶20 Earl did present constitutional claims to the Third District.
In that case, Earl argued, as she does before us on this appeal, that
her constitutional right to counsel encompassed a right to ―the
resources necessary to prepare and present a complete and
effective defense.‖ Citing Ake v. Oklahoma, 470 U.S. 68 (1985), Earl
asserts a right to ―meaningful access to justice‖ and an ―adequate
opportunity to present [her] claims fairly within the adversary
system,‖ id. at 77—a right that, in her view, cannot be conditioned
on the retention of a ―public[ly] appointed lawyer.‖
¶21 We reject this argument and affirm.6 The constitutional
right to counsel encompasses the prerogative of choosing counsel
of one‘s choice and of receiving resources necessary to an
adequate defense. See Ake, 470 U.S. at 76–77. Such rights are
qualified ones, however, affected by the ―avenues which [the
defendant] chose not to follow as well as those [she] now seeks to
widen.‖ United States v. MacCollom, 426 U.S. 317, 326 (1976). When
a defendant elects an avenue that steers away from the public
representation provided by the government, she has received the
private counsel of her choice and has no constitutional right to
defense resources from a secondary source backed by government
funding.
¶22 The ―right to choose one‘s own counsel is circumscribed in
several important respects,‖ most importantly in the fact that an
indigent defendant cannot ―insist on representation by an
attorney he cannot afford.‖ Wheat v. United States, 486 U.S. 153,
159 (1988). The United States Supreme Court, moreover, has not
prescribed a single orthodoxy for the provision of the defense
resources required by the Sixth Amendment. It instead has ―le[ft]
to the State the decision on how to implement‖ this constitutional
guarantee. Ake, 470 U.S. at 83. And in our state the legislature has
chosen to couple the availability of defense resources with the
a legal principle but also its application to the facts of the case‖
(internal quotation marks omitted)).
6 In the Third District and again on appeal, Earl has vaguely al-
luded to a right to counsel under Article I, Section 12 of the Utah
Constitution. But she offers no meaningful analysis of the text or
history of that provision and gives us no basis for recognizing a
right thereunder that differs in any respect from that of the Sixth
Amendment. So because her authority and arguments are all fed-
eral, we also focus our analysis on the Sixth Amendment.
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Opinion of the Court
retention of government-funded counsel. Thus, a defendant has
every right to decline the counsel the government offers in favor
of the one she prefers, but in so doing, she loses the right to a
publicly funded defense. See Wheat, 486 U.S. at 159.7
¶23 An indigent defendant has a right to ―the basic tools of an
adequate defense,‖ Britt, 404 U.S. at 227, not ―the legal arsenal that
may be privately retained by a criminal defendant,‖ Ross v.
Moffitt, 417 U.S. 600, 616 (1974).8 Accordingly, the constitutional
question before us is whether the defense available to indigents
through the ―exclusive source‖ of a public defense is ―adequate.‖
And Earl has not carried her burden under this standard. She has
not demonstrated that the panoply of resources provided by the
public defense made available in Salt Lake County falls short of
the fundamental requirement of ―the basic tools of an adequate
defense,‖ and without that showing there is no ground for
establishing a new constitutional right to unbundled defense
resources.
¶24 A defendant who opts out of public representation has also
opted out of public defense resources, and nothing in the
Constitution requires a different result. We accordingly affirm the
Third District Court‘s decision rejecting Earl‘s challenge to the
constitutionality of the 2012 amendments to the IDA under the
Sixth Amendment of the U.S. Constitution.
7 See also Miller v. Smith, 115 F.3d 1136, 1143 (4th Cir. 1997) (en
banc) (―[A]n indigent criminal defendant has no constitutional
right to have a particular lawyer represent him.‖); Thomas v.
Wainwright, 767 F.2d 738, 742 (11th Cir. 1985) (―An indigent crimi-
nal defendant has an absolute right to be represented by counsel,
but he does not have a right to have a particular lawyer represent
him.‖).
8 See also Ross v. Moffit, 417 U.S. 600, 612, 616 (1974) (―The ques-
tion is not one of absolutes, but one of degrees. . . . [T]he fact that a
particular service might be of benefit to an indigent defendant
does not mean that the service is constitutionally required. The
duty of the State under our cases is not to duplicate the legal arse-
nal that may be privately retained by a criminal defendant in a
continuing effort to reverse his conviction, but only to assure the
indigent defendant an adequate opportunity to present his claims
fairly in the context of the State‘s appellate process.‖).
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Opinion of the Court
¶25 We also reject a series of further constitutional challenges
raised by Earl on appeal—under the Equal Protection Clause of
the United States Constitution and the Uniform Operation of
Laws Clause of the Utah Constitution.9 See U.S. CONST. amend.
XIV, § 1; UTAH CONST. art. I, § 24. Under these provisions, Earl
asserts that the amended IDA discriminates without any rational
basis against indigent defendants who have retained private
counsel.10 Yet despite this broadside attack on the statute, we see
ample grounds for upholding it as rational. The State, and its
counties and municipalities, have a legitimate interest in
maintaining the control necessary to ensure that the funds that are
dedicated to indigent legal defense are not abused or wasted, and
that legal defense services are provided effectively and efficiently.
That basis is a rational—and therefore sufficient—ground for
upholding the constitutionality of the 2012 IDA. The legislature
acted well within the bounds of rationality in asserting an interest
in ensuring for government the oversight, control, and efficiency
associated with the single-source approach to indigent defense
resources established in the 2012 amendments. We uphold the
statute on that basis.
9 In the same breath as her equal protection and uniform opera-
tion challenges, Earl also alludes to an additional constitutional
challenge on due process grounds. But Earl did not brief that issue
independently or provide any due process authority distinct from
that provided in support of her equal protection and uniform op-
eration arguments. She has therefore failed to carry her burden of
persuasion and, to the extent she made one, Earl‘s due process ar-
gument is rejected.
10 See State v. Chettero, 2013 UT 9, ¶¶ 20–22, 297 P.3d 582 (ex-
plaining that in equal protection claims, ―rational basis‖ scrutiny
applies absent a suspect class or fundamental right at issue, and
requires only that the statute ―bear some conceivable relation to a
legitimate government purpose or goal‖); State v. Canton, 2013 UT
44, ¶¶ 35–36, 308 P.3d 517 (stating that rational basis review ap-
plies to Uniform Operation claims under the Utah State Constitu-
tion unless a classification is of a kind ―so generally problematic
(and so unlikely to be reasonable) that [it] trigger[s] heightened
scrutiny,‖ such as race, gender, and certain fundamental rights).
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¶26 Cuyler v. Sullivan, 446 U.S. 335 (1980), is not to the contrary.
Earl quotes this case for the proposition that there is ―no basis for
drawing a distinction between retained and appointed counsel
that would deny equal justice to defendants who must choose
their own lawyers.‖ Id. at 344–45. But the context of the quoted
language belies Earl‘s suggestion that it undermines the
constitutionality of the operative terms of the 2012 amendment to
the IDA. The question in Cuyler concerned the standard for
assessing a defendant‘s assertion of a violation of the Sixth
Amendment in circumstances involving an alleged conflict of
interest by counsel representing multiple defendants accused of
the same crime. Id. at 337. The quoted language is simply the
court‘s rejection of the government‘s attempt to establish the
proposition that a defendant who retains his own private counsel
forfeits the right to claim a violation of the Sixth Amendment
when his counsel proceeds under a conflict of interest. See id. at
342 (noting the government‘s argument that ―the conduct of
retained counsel does not involve state action‖). And in that
context, it of course makes sense to repudiate the rationality of a
―distinction between retained and appointed counsel.‖ Id. at 345.
But that conclusion in no way suggests that there can never be
any rational distinction between retained and appointed counsel.
Clearly there can be, as it is of course constitutional for the
government to condition its payment of counsel on an indigent
defendant‘s willingness to accept government-provided counsel.
See Wheat, 486 U.S. at 159, 164 (explaining that ―while the right to
select and be represented by one's preferred attorney is
comprehended by the Sixth Amendment, the essential aim of the
Amendment is to guarantee an effective advocate for each
criminal defendant rather than to ensure that a defendant . . . [is]
represented by the lawyer whom he prefers,‖ and thus there is ―a
presumption in favor of [a defendant‘s] counsel of choice,‖
though that right is not absolute).11
11 See also United States v. McKeighan, 685 F.3d 956, 969 (10th Cir.
2012) (―[C]onsiderations of the fair administration of justice may
take precedence over a defendant‘s right to counsel of choice. On-
ly improper or ‗erroneous‘ deprivations of a defendant's counsel
of choice violate the Sixth Amendment.‖).
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¶27 There is an obvious rationality—in economic efficiency—in
this longstanding distinction. See State v. Parduhn, 2011 UT 55,
¶ 51, 283 P.3d 488 (Lee, J., dissenting) (recognizing the ―obvious
and intended efficiencies‖ of employing legal aid associations ―as
the exclusive source for the defense of indigents‖ (internal quota-
tion marks omitted)); see also Hatch v. Oklahoma, 58 F.3d 1447, 1456
(10th Cir. 1995) (explaining that the ―sounder and more efficient
use of the state‘s resources‖ constituted a rational basis for
limiting the number and distribution of state-staffed investigators
available to indigent defendants), overruled in part on other grounds
by Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001)
(en banc). And a similar rationality sustains the distinction in the
2012 IDA.
C
¶28 Earl‘s final claim is a challenge to the legality of the method
by which Utah County and Salt Lake County have elected to
provide defense services under the 2012 IDA. This claim is a
converse of Earl‘s constitutional claims in terms of preservation:
She preserved this argument in the Fourth District case but not in
the Third District case. We accordingly reject this claim on
preservation grounds as it extends to the Third District case, but
consider its merits as applied to the Fourth District case.
¶29 The essence of Earl‘s claim is her assertion that the
operative provision of the 2012 IDA—which generally conditions
a defendant‘s eligibility for defense resources on the government‘s
provision of a ―defense services provider,‖ UTAH CODE § 77-32-
303(2)—was not satisfied by Utah County because it did not
follow applicable legal requirements for its contract with the Utah
County Public Defender‘s Association. In support of this claim,
Earl asserts that the county has not complied with the notice and
public bidding requirements of the state procurement code, UTAH
CODE Title 63G, Chapter 6a, or the notice provision of the IDA
itself, UTAH CODE § 77-32-302(2)(b) (requiring court to assign the
―defense services provider‖ to provide a legal defense for an
indigent defendant when ―the court has received notice or a copy
of the contract‖).
¶30 This argument falters on several grounds. First, the
qualifications for a ―defense services provider‖ are set forth in the
IDA, not in the procurement code, and the Utah County Public
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Defender‘s Association easily qualifies under the IDA. The IDA
defines ―defense services provider‖ broadly. The statutory
definition includes any ―legal aid association, legal defender‘s
office, regional legal defense association, law firm, attorney, or
attorneys contracting with a county or municipality to provide
legal defense.‖ UTAH CODE § 77-32-201(4). The Utah County
Public Defender‘s Association falls within the broad terms of this
definition. It is a ―legal aid association‖ with a longstanding
contractual relationship with Utah County.
¶31 Second, the applicable notice requirements are again
prescribed in the IDA, not in the procurement code. And the
governing notice provision is straightforward. It requires only
that the court have ―received notice or a copy of the contract‖
between the county and the provider. UTAH CODE § 77-32-
302(2)(b). Clearly the Fourth District Court has notice of the Public
Defender‘s Association‘s relationship with the county, as judges
in the district have long assigned the association to provide a legal
defense to the indigent. That is all the notice that is required
under the IDA, and the Public Defender‘s Association accordingly
satisfies the IDA‘s requirements for a ―defense services provider.‖
¶32 Finally, the public bidding and notice requirements of the
state procurement code are not properly implicated in this
proceeding. If Earl were a contractor seeking to compete in a
competitive bidding process, she would be within the zone of
interests protected by the procurement code, and thus have
standing to sue under its terms.12 See Ball v. Pub. Serv. Comm’n (In
12 In such a suit, the parties would be in a position to litigate
questions raised by Earl but not properly before us here. In her
brief, Earl chides Utah County and Salt Lake County for not sub-
mitting their defense service provider contracts to public bidding,
competitive proposal, and public notice as required under the
procurement code. Her arguments raise the question whether a
longstanding public defense contract complying with the IDA
would still be required to be reopened and subjected to the terms
of the procurement code, and not grandfathered or otherwise ex-
empted from its terms. See UTAH CODE §§ 63G-6a-802(2),(3) (al-
lowing a procurement unit to ―award a contract for a procure-
ment item without competition‖ upon a written determination
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re Questar Gas Co.), 2007 UT 79, ¶ 61, 175 P.3d 545 (stating that an
aggrieved party ―must establish that the injury he complains of
. . . falls within the zone of interests sought to be protected by the
statutory provision whose violation forms the legal basis for his
complaint‖ (alteration in original ) (internal quotation marks omit-
ted); Forsberg v. Bovis Lend Lease, Inc., 2008 UT App 146, ¶ 9, 184
P.3d 610 (―Standing to assert rights created by statute requires
that the plaintiff be within the zone of interest contemplated by
[the statute] and have suffered a distinct and palpable injury.‖ (al-
teration in original) (internal quotation marks omitted). But this is
not a suit by a competing contractor under the procurement code.
It is a request for defense resources filed by an indigent defendant
in a pending criminal case. And in that context, it is the IDA, and
not the procurement code, that controls. Because the terms of the
IDA are met, Earl has no grounds for challenging the viability of
Utah County‘s contract with the Public Defender‘s Association.13
III
¶33 For all these reasons, we affirm the decisions of the Third
and Fourth District Courts in their entirety. And we remand for
further proceedings not inconsistent with this opinion.
——————
that ―there is only one source for the procurement item,‖ as in cir-
cumstances where ―transitional costs‖ are ―unreasonable‖).
13 In light of this holding, we stop short of endorsing Judge Han-
sen‘s conclusion that Utah County had satisfied the IDA by estab-
lishing a ―county legal defender‘s office‖ under Utah Code section
77-32-302(2)(a). We tend to agree with Earl that the statutory ref-
erence to a ―county legal defender‘s office‖ has reference to an
agency or department of local government, and not to a private
association or organization under contract. Thus, although we do
not adopt Judge Hansen‘s analysis, we nonetheless affirm his de-
cision on the alternative grounds set forth above.
14