Utah Court Rules – Published for Comment
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Posted: February 6, 2023
URCrP008. Appointment of counsel. Amend. The Supreme Court has requested an additional round of public comment to Rule 8. The current proposal changes the process of securing a waiver of the right to counsel and the appointment of counsel in capital cases.
I am concerned the proposed changes will create confusion because they appear to use two different words (“will” and “must”) to refer to mandatory actions.
As currently drafted, Rule 8 already uses two words to refer to apparently mandatory actions. The first is “shall.” E.g., Utah R. Crim. P. 8(b) (“the court shall appoint two or more attorneys to represent such defendant”); id. (“the court shall ensure that the experience of counsel who are under consideration for appointment have met” minimum requirements). And the second is “must.” E.g., Utah R. Crim. P. 8(b)(1) (“at least one of the appointed attorneys must have tried to verdict six felony cases within the past four years or twenty-five felony cases total”); Utah R. Crim. P. 8(b)(4) (“the experience of one of the appointed attorneys must total not less than five years in the active practice of law”).
This use of two different words to convey the same concept is generally a recipe for confusion. That is because, under the “canon of meaningful variation,” courts generally presume “that different words used in a similar statute are assigned different meanings whenever possible.” Outfront Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶31, 416 P.3d 389 (cleaned up); see also Clark v. Archer, 2010 UT 57, ¶9, 242 P.3d 758 (procedural rules are interpreted using “general rules of statutory construction”).
In its present form, Rule 8 already uses two words—“shall” and “must”—which both have a longstanding practice of being used to refer to mandatory activities in Utah law. See Utah Code Ann. § 68-3-12(1)(i) (“‘Must’ means, depending on the context in which it is used, that…an action is required or mandatory.”); id. § 68-3-12(1)(j) (“‘Shall’ means that an action is required or mandatory.”). This is far from ideal. See id. § 68-3-12(2)(d) (“The use of the word ‘must’ is strongly discouraged when the term ‘shall’ can be used in its place.”). But at least the pattern of established usage in Utah will somewhat help to reduce the potential for confusion.
The proposed amendments to Rule 8, however, do not resolve this confusion. Instead, they threaten to make it worse. The amendments would replace all instances of “shall” in Rule 8 with “will.” But they would also leave all present instances of “must” in place. That approach retains the problem of having two words referring to mandatory requirements—again creating tension with the canon of meaningful variation. But it also arguably exacerbates the problem by using the word “will,” which could be interpreted as a merely predictive or descriptive term rather than a mandatory one.
I therefore worry that the amendments will spawn unnecessary litigation about whether the drafters intended various portions of the rule to be mandatory. If the drafters intended the duty to be mandatory—the parties will argue—then why did they merely say that something “will” happen rather than requiring that it “must” happen as they did elsewhere in the rule? The better approach would be to use the same word to refer to all mandatory duties.
Based on Atkins v. Virginia, 536 U.S. 304 (2002) and the perpetual post conviction appeals of Michael Anthony Archuleta with respect to his Constitutional death sentence, certainly UC Title 77B-Chapter 22 should be amended to provide that a defendant charged with capital murder who claims indigency shall be tested for intellectual disability before a preliminary hearing and, if determined to be so, shall have competent counsel appointed to represent her/him so she/he is not incorrectly sentenced to death by a trial court. Based on such a statutory amendment, URCrP 8 should be amended to reflect such.
This rule certainly is a start. A few notes.
1. It probably should be divided into two rules, Rule 8 about the general right, appointment, and waiver. Then Rule 8A concerning all the special circumstance cases such as Capital; Rule 65, and Court of Record Appointments. This would be consistent with the Court’s recent approach to shorter rules that are more narrowly crafted to particular circumstances.
2. The first subsection (a) should be in three parts. First, every defendant has the right to counsel (doesn’t matter if it is an infraction, they can bring an attorney). Two, an indigent charged with a misdemeanor or felony has the right to court appointed counsel. Three, a defendant also has the right to represent themselves if they knowingly, intelligently, and voluntarily waive the right to counsel.
3. A new subsection (b) should cover appointment, picking up from the hand-off from Rules 7 and 7a. Also start referring to appointed counsel as “an indigent defense service provider,” the term of art from Utah Code 78B Chapter 22.
4. Subsection (c) would be the waiver section and subsection d would cover the end of representation.
5. End Rule 8 there and put the rest in Rule 8A, with a hierarchy of Capital; Rule 65B post-conviction; and appeal.
I have sent some draft language and organization to Mr. Bryson.