Corrections, Administration

Rule R251-707

Legal Access

Notice of Proposed Rule

(Amendment)

DAR File No.: 34863
Filed: 05/23/2011 07:38:09 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This amendment updates statutory citations, updates prison facility listing, and clarifies the legal standard required for a strip search.

Summary of the rule or change:

This change updates Section 63-46a-3 to 63G-3-201 in the rule authorization references per H.B. 63 (2008). The Promontory facility is added to the list of housing units provided in the definition of "Draper Site", and specific reference to the "Iron County Correctional Facility" is eliminated, as the department no longer has a unique association with this facility. Finally, clarity is provided that the legal standard for a strip search of attorneys/representatives will be reasonable suspicion. Previously, this was unclear as both probable cause and reasonable suspicion were noted as legal standards. (DAR NOTE: H.B. 63 (2008) is found at Chapter 382, Laws of Utah 2008, and was effective 05/05/2008.)

State statutory or constitutional authorization for this rule:

• Section 63G-3-201
• Section 64-13-10
• Section 64-13-17
• Section 64-13-7

Anticipated cost or savings to:

the state budget:

There are no costs or savings to the state budget. The amendment simply updates statutory citations, updates the prison facility listing, and clarifies existing language.

local governments:

There are no costs or savings to local governments. The amendment simply updates statutory citations, updates the prison facility listing, and clarifies existing language.

small businesses:

There are no costs or savings to small businesses. The amendment simply updates statutory citations, updates the prison facility listing, and clarifies existing language.

persons other than small businesses, businesses, or local governmental entities:

There are no costs or savings to other persons. The amendment simply updates statutory citations, updates the prison facility listing, and clarifies existing language.

Compliance costs for affected persons:

There are no compliance costs for affected persons. The amendment simply updates statutory citations, updates the prison facility listing, and clarifies existing language.

Comments by the department head on the fiscal impact the rule may have on businesses:

The primary changes are updates to statutory citations and correctional facilities. The amendment specifies reasonable suspicion is required before an attorney or representative may be strip searched. This is the appropriate legal standard. As the rule is currently drafted, there is a lack of clarity, as both probable cause and reasonable suspicion are listed as the legal standard.

Thomas Patterson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Corrections
Administration
14717 S MINUTEMAN DR
DRAPER, UT 84020-9549

Direct questions regarding this rule to:

• Michael Haddon at the above address, by phone at 801-545-5913, by FAX at 801-545-5726, or by Internet E-mail at mhaddon@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/15/2011

This rule may become effective on:

08/01/2011

Authorized by:

Thomas Patterson, Executive Director

R251. Corrections, Administration.

R251-707. Legal Access.

R251-707-1. Authority and Purpose.

(1) This rule is authorized by Sections [63-46a-3]63G-3-201, 64-13-7, 64-13-10 and 64-13-17, of the Utah Code, which allow the Department to adopt procedures in accordance with its responsibilities.

(2) The purpose of this rule is to provide the policy and procedures for inmates under the control of the Institutional Operations Division regarding access to courts and counsel.

 

R251-707-2. Definitions.

(1) "Attorney" means a member of the legal profession who has been licensed by a state and who has a current and valid license or bar card allowing him to practice law; lawyer; counsel; esquire;

(2) "Attorney Representatives" means paralegals, law clerks, investigators and other attorneys who are acting under the authority and supervision of the attorney of record;

(3) "CUCF" means Central Utah Correctional Facility located in Gunnison;

(4) "DIO" means Division of Institutional Operations;

(5) "Draper Site" means collectively, Timpanogos, Lone Peak, Promontory, Olympus, Oquirrh, Wasatch, Uinta, and SSD facilities;

(6) "Out-Count Status" means any inmate under legal supervision or confinement of the Utah Department of Corrections who is housed at any location other than the Draper or Gunnison sites;

(7) "Prison" means the Utah State Prison in Draper and CUCF in Gunnison;

(8) "Probable Cause" means sufficient knowledge of articulable facts or circumstances to lead a reasonable person to conclude that another person has committed, is committing, or is about to commit a crime or a violation of a legally enforceable policy or rule;

(9) "Service of Process" means the service of writs, summonses, warrants and subpoenas to inmate or UDC members; and

(10) "UDC" means the Utah Department of Corrections.

 

R251-707-3. Policy.

It is the policy of the Department that:

(1) legal assistance shall be provided to assist inmates in preparing and filing of an initial pleading in habeas corpus and civil rights suits challenging conditions of confinement arising from incarceration at the prison;

(2) inmates incarcerated at UDC facilities shall be allowed reasonable access to courts and counsel regarding any type of legal matter;

(3) access to courts and counsel shall be extended to those inmates in out-count status;

(4) the primary means of access to legal services shall be provided by contract attorneys paid by the Department, though inmates may secure legal counsel at their own expense if they prefer not to use the contracted legal firm or they may choose to represent themselves;

(5) inmate writ writers may represent themselves but may not represent other inmates;

(6) a law library shall not be provided, except that law books may be included among the books in the general inmate library system;

(7) before being admitted to the prison, attorneys shall present a current state bar card and photo I.D.;

(8) before being admitted to the prison, attorney representatives shall present a letter of introduction from the attorney of record and a photo I.D.;

(9) attorneys and their representatives shall not interfere with the safety, security or orderly operation of the prison;

(10) attorneys and their representatives shall be cleared through the Bureau of Criminal Identification prior to being approved for visitation; individuals with a criminal record shall be allowed to visit only with the approval of the Director of Institutional Operations/designee;

(11) attorneys may elect to have an attorney representative visit an inmate client instead of visiting personally;

(12) attorney representatives:

(a) have no standing on their own; their standing to visit is granted only in their role as representatives of the attorney of record;

(b) may be cleared for visits, if the attorneys they represent:

(i) submit a request, in writing, to the warden of the facility where the inmate is housed;

(ii) provide the name and title of the person assigned to represent the attorney; and

(iii) provide the name of the inmate to be visited;

(c) who have been cleared shall be afforded the same basic rights and privileges as those extended to the attorney of record;

(13) attorneys/representatives should not be denied visits, nor face inordinate delays when visits are prescheduled within the hours designated by the institution;

(14) in the event of exigent circumstances requiring an attorney/representative visit before appropriate screening can be completed, temporary approval for a visit may be approved by the Director of Institutional Operations/designee;

(15) inmate attorney/representative telephone calls shall originate from inside the institution and should not exceed thirty minutes in duration;

(16) attorneys/representatives may leave telephone messages requesting return calls;

(17) visits between inmates and counsel shall not be monitored and shall occur in facilities which permit privacy; however, privacy requirements shall not prohibit visual observation;

(18) attorneys/representatives should schedule on-site visits in advance, when possible;

(19) attorneys/representatives may schedule appointments with their inmate clients:

(a) at Draper Site and CUCF, Monday through Friday, 0800 to 1100 hours and 1300 to 1500 hours;

(b) on weekends, holidays, and evenings with prior written clearance from the Director/designee of Institutional Operations;

(c) at [Iron County Correctional Facility and ]county jails as requested;

(d) in out-of-state institutions, consistent with receiving agencies' policies and procedures; and

(e) during non-visiting hours without prior approval in exigent circumstances if authorized by DIO Director/designee;

(20) attorneys/representatives shall:

(a) follow Department and prison rules during visits to the institution;

(b) conduct themselves in a manner consistent with safety and security requirements; and

(c) comply with instructions of staff members while in the institution;

(21) physical inspections shall be made of all material brought into and out of any facility by any attorney/representative and shall be performed only in the presence of the attorney/representative;

(22) if any written material is declared privileged, it shall not be read; however, the attorney/representative may be required to leaf through these materials in the presence of staff, to assist in inspecting for contraband;

(23) if a reasonable suspicion exists to believe an attorney/representative possesses contraband, a rub search may be required before permitting the visit and an incident report shall be filed documenting the reasonable suspicion and incident;

(24) refusal to submit to search may result in the visit being denied and the attorney/representative being asked to leave the premises;

(25) strip searches of attorneys/representatives shall be conducted only if there is [probable cause or ]reasonable suspicion of a particularized nature; an incident report shall be filed documenting the [probable cause]reasonable suspicion, incident and reason a strip search was necessary under the circumstances;

(26) if a warden/designee determines that a safety, security, control or management problem could result by allowing an attorney/representative access to a facility, the warden/designee may place reasonable restrictions upon access or deny access when necessary; an incident report shall be filed articulating the justification for denying access and documenting the incident;

(27) an attorney/representative may request a hearing before the Executive Director if he believes the denial of access for him or his legal representative was arbitrary, capricious, unreasonable or in violation of law or Department policy;

(28) any attorney/representative who violates any Department policy or rule or who provides false information may be denied access to the facility; and

(29) staff members authorized to accept service of process shall ensure that the requirements of proper service are appropriately satisfied at the DIO.

 

KEY: corrections, prisons, legal aid

Date of Enactment or Last Substantive Amendment: [January 15, 1998]2011

Notice of Continuation: January 31, 2007

Authorizing, and Implemented or Interpreted Law: 63-46a-3; 64-13-7; 64-13-10; 64-13-17