concurring:
119 I concur in the court's decision to vacate the district court's order in this case and agree with much of the analysis in its opinion. I write separately, however, to express my agreement with the district court's construction of the Indigent Defense Act (IDA), which in my view prescribes a result on remand that is different from that contemplated by the majority.
T 20 Because the Salt Lake Legal Defender Association (LDA) was the subject of the underlying motion for funding for defense resources in this case, LDA was doubtless entitled to notice and an opportunity to be heard. As the majority indicates, LDA had a due process right to be heard before it was required "to provide funding for Mr. Augustine's expert." Supre T1. The district court's order requiring LDA to provide funding was thus in error for reasons explained in Associate Chief Justice Durrant's opinion for the court.
121 My only quibble with the majority opinion is its treatment of Judge Atherton's grounds for denying notice to LDA. In declining to provide notice to LDA, Judge Ath-erton noted that the statute does not require notice to an entity that is required to provide defense resources to an indigent. And because the County has elected to provide such resources through its contract with LDA, Judge Atherton believed that any defense resource that the County was required to provide would have to be provided through LDA.
122 In dismissing the foregoing as grounds for a failure to give notice to LDA, the majority states (a) that the lack of an "explicit notice requirement does not exempt a court from complying with the bare essentials of the right to due process"; and (b) that a legal aid association's responsibility to provide defense resources under the IDA depends on whether the association's contract requires it "to provide indigent defendants with funding for defense resources-even when the defendant is represented by private counsel." Supra 115. I agree with the first point, but nonetheless find the absence of an explicit notice requirement telling and relevant to the disposition of this case on remand. As to the second point, I disagree with the court's construction of the statute and would give different guidance to the district court on remand.
123 First, the lack of a statutory notice requirement cannot exeuse a failure to provide the notice required by due process, but it does tell us something about the seope and intent of the IDA. In my view, the statute's silence regarding notice to LDA for a request for funding of defense resources to indigents who retain private counsel confirms that such requests are not viable under the statute. For reasons explained in detail in my dissent in related cases decided today, see State v. Parduhn, 2011 UT 55, - P.3d. ---, 2011 WL 4447629 (Lee, J., dissenting), I read the IDA to permit the government to designate a legal aid association as the "exclusive source" of the indigent's complete defense and to mandate that such an association provide both counsel and necessary defense resources. See Utah Cope Ann. § 77-*23232-306(4) (2008). Because Salt Lake County designated LDA as its "exclusive source" for the defense of indigents, there is no basis in the statute for an indigent who opts out of LDA to request government-funded defense resources.
11 24 I find the lack of a statutory requirement of notice to LDA for defense requests for funding of expert or other resources to be telling. In cireamstances where the statute contemplates the provision of resources outside the "exclusive source" designated by the county, the IDA does expressly provide for notice. In counties that do not establish a legal aid association but opt instead to provide indigent defense under contracts with attorneys and/or defense resource providers, for example, the statute expressly requires a hearing and notice "to the attorney of the responsible county or municipality" when the court "considers the assignment of a noncon-tracting attorney or defense resource." Id. § Ti-32-302(2)(e). Where the county designates a legal aid association like LDA as the "exclusive source" of the defense, however, the statute is silent as to notice or a hearing on the provision of non-LDA resources. The lack of a parallel notice requirement is significant. It confirms that the legislature did not anticipate the provision of non-LDA resources in counties that established a legal aid association as the exclusive source of defense resources.
125 Thus, the lack of a statutory notice requirement for an indigent's request for non-LDA resources is significant, but for reasons somewhat different from those identified by Judge Atherton. LDA would have a due process right to notice if it were on the hook for defense resources for defendants who retain private counsel. But I think the IDA expressly forecloses any such lability by LDA or the County, and the absence of a notice requirement in the statute merely confirms that conclusion.
126 Second, for reasons set forth in my dissenting opinion in the consolidated cases decided today, see Parduhn, 2011 UT 55, -- P.3d --, 2011 WL 4447629 (Lee, J., dissenting), I disagree with the court's conclusion that a legal aid association's responsibility to provide defense resources under the IDA depends on whether the association's contract requires it "to provide indigent defendants with funding for defense resources-even when the defendant is represented by private counsel." Suproe 115. I read the IDA to designate a legal aid association like LDA as the exclusive source of an indigent's defense and to require it to provide both legal counsel and defense resources. Thus, unlike the majority, I would not deem the terms of the LDA's contract to be determinative of the question whether such resource is to be provided by the association or by the County on remand. Instead, I interpret the IDA to put indigent defendants to a threshold choice: either accept the legal aid association as the exclusive source of the complete defense to be provided by the government, or opt out of a government-funded defense upon retaining private counsel.
127 Under that view of the statute, the motion for defense resources at issue here would be foreclosed by the terms of the IDA on remand in this case. Thus, I would vacate Judge Atherton's order because LDA was entitled to notice before it could be ordered to provide defense resources, but I would remand with instructions to deny the underlying motion on the ground that there is no statutory right to such resources where the defendant has opted out of LDA representation.