              This opinion is subject to revision before final
                   publication in the Pacific Reporter.

                               2015 UT 15

                                  IN THE

      SUPREME COURT OF THE STATE OF UTAH
                            ———————
                            STATE OF UTAH,
                              Appellant,
                                    v.
                      MICHAEL KEITH STEINLY,
                            Appellee.
                            ———————
                            No. 20120715
                        Filed January 27, 2015
                            ———————
                     Third District, Salt Lake
                    The Honorable Ryan Harris
                         No. 091909826
                            ———————
                               Attorneys:
   Simarjit S. Gill, D. Adam Miller, Salt Lake City, for appellant
           Kelly Ann Booth, Salt Lake City, for appellee
                            ———————
    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 an interlocutory appeal in a pending criminal case
against Michael Steinly. In this case and in several others related
to it, we consider the applicability of legislative amendments to
the Indigent Defense Act (IDA), Utah Code sections 77-32-101
through -704. The amended provisions override this court’s con-
struction of the prior version of the statute in State v. Parduhn,
2011 UT 55, ¶¶ 23–30, 283 P.3d 488, by foreclosing an indigent de-
fendant in a criminal action from retaining private counsel while
                          STATE v. STEINLY
                       Opinion of the Court

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 reten-
tion of publicly funded counsel. Id.
  ¶2 The question in this and the related cases 1 is the applicabil-
ity of these amendments to certain cases filed or pending around
the time the 2012 amended version of the statute became effective
(May 8, 2012). In the criminal case against Steinly, the district
court granted his request for government-funded defense re-
sources under the pre-amendment version of the statute. It held
that the earlier version of the statute applied because it was a
“substantive” provision regulating a defendant’s right to a public
defense and because that version was the one in effect at the time
of Steinly’s alleged offenses.
  ¶3 We reverse. First, we identify the conduct being regulated
by the IDA—the exercise of a mature right to indigent defense re-
sources. Second, because the law in effect at the time Steinly exer-
cised that mature right was the amended version of the IDA, we
reverse the district court’s decision granting Steinly’s motion. And
finally, we reject Steinly’s constitutional challenges to the applica-
tion of the 2012 amendments to this case.
                                  I
  ¶4 Steinly is charged with four first-degree felonies, one count
of aggravated burglary and three counts of aggravated robbery.
The criminal information in this case was filed on December 18,
2009. Steinly was found indigent by the district court in December
2009, and was thereafter appointed counsel through the Salt Lake
Legal Defenders Association (LDA). LDA represented Steinly un-
til February 23, 2010, when private counsel first appeared on his
behalf.
  ¶5 On June 4, 2012, about one month after the 2012 amend-
ments to the IDA became effective, Steinly filed a motion request-
ing funds for an expert witness and a private investigator. In sup-
port of the motion, Steinly argued that he was entitled to such
funding under the IDA, and that it was necessary to a complete

 1  See State v. Earl, 2015 UT 12, __ P.3d __; State v. Perez, 2015 UT
13, __ P.3d __; State v. Folsom, 2015 UT 14, __ P.3d __; State v. Ro-
driguez-Ramirez, 2015 UT 16, __ P.3d __.

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                       Opinion of the Court

defense and thus required under constitutional principles of due
process and equal protection. Salt Lake County intervened and
opposed the motion, asserting that the amended statute applied to
Steinly’s case because the amendments were procedural rather
than substantive, and thus that Steinly was not entitled to public
funding once he opted out of LDA’s representation.
  ¶6 The district court granted Steinly’s motion. It concluded
that the pre-amendment version of the IDA applied because it
was the version of the statute that was in effect when Steinly was
charged in 2009, and because the IDA amendments were substan-
tive in that they “diminished, eliminated, or destroyed [Steinly’s]
substantive right . . . . to hire [his] own counsel and have the State
or County provide the reasonable costs.”
  ¶7 The County filed a petition for interlocutory appeal, which
we granted. We review the district court’s decision de novo, ac-
cording no deference to its legal determination of which version
of the IDA applies to Steinly’s motion. 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
  ¶8 The County challenges the district court’s decision granting
Steinly’s motion, arguing that the 2012 amendments to the IDA
should apply because they fall within the scope of the so-called
“clarifying amendment” exception to the prohibition on retroac-
tive statutory application, and because the amendments were
“procedural” rather than “substantive.” Steinly defends the dis-
trict court’s determinations on these points and, alternatively,
challenges the legality of application of the 2012 amendments on
constitutional and statutory grounds.
  ¶9 We reverse. First, we conclude that the 2012 version of the
IDA should apply to this case. Second, we uphold the constitu-
tionality of the 2012 amendments as applied to this case. And fi-
nally, we decline to reach Steinly’s statutory challenge to the ap-
plicability of the 2012 amendments.
                                  A
  ¶10 The County’s arguments challenging the district court’s de-
cision are twofold. First, the County asserts that the 2012 amend-


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                         STATE v. STEINLY
                       Opinion of the Court

ments should apply retroactively under a principle previously
recognized in our caselaw—that a newly codified “statute or
amendment [that] deals only with clarification or amplification as
to how the law should have been understood prior to its enact-
ment” should be understood to apply retroactively. Okland Constr.
Co. v. Indus. Comm’n, 520 P.2d 208, 210–11 (Utah 1974). And se-
cond, the County characterizes the 2012 amendments as “proce-
dural,” and contends that “procedural statutes enacted subse-
quent to the initiation of a suit which do not enlarge, eliminate, or
destroy vested or contractual rights apply not only to future ac-
tions, but also to accrued and pending actions.” State v. Higgs, 656
P.2d 998, 1000 (Utah 1982). We disagree with the first point but
reverse based on a variation on the second—as recently clarified
in Waddoups v. Noorda, 2013 UT 64, 321 P.3d 1108, Gressman v.
State, 2013 UT 63, 323 P.3d 998, and State v. Clark, 2011 UT 23, 251
P.3d 829.
  ¶11 The County’s first point is easily disposed of. Although our
past cases occasionally have alluded to a “clarification” exception
to the general rule against retroactivity, we have never actually
applied that principle as a freestanding exception. See Gressman,
2013 UT 63, ¶ 16 (“[W]hen our cases discuss the ‘clarifying
amendment exception,’ it is always in tandem with or as a coun-
terpart to our analysis of the . . . distinction between substance
and procedure”). And our recent cases expressly repudiate the
notion of an exception for clarifying amendments, emphasizing
that “[t]he sole exception spelled out explicitly by statute requires
an express provision for retroactivity.” Id.; see also Waddoups, 2013
UT 64, ¶ 9 (confirming that Gressman “repudiated” this excep-
tion).
  ¶12 As to the County’s second point, we reverse, but on
grounds somewhat distinct from those they advanced. In our pri-
or decisions in this field, we have “sometimes” suggested that
“amendments to procedural statutes are . . . retroactive because
they apply presently to cases whose causes of action arose in the
past.” Clark, 2011 UT 23, ¶ 13. But our cases ultimately stand for a
“simpler proposition”—that “we apply the law as it exists at the
time of the event regulated by the law in question.” Id.
  ¶13 The point we made in Clark is that the line between
substance and procedure is not ultimately an exception to the rule


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                        Opinion of the Court

against retroactivity. It is simply 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. Simi-
       larly, 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 ap-
       ply retroactively to prior motions to intervene. We
       would not expel a party for failure to conform to a
       newly amended intervention rule in her prior mo-
       tions.
Id.
  ¶14 This framework dictates a reversal of the district court’s
decision in this case. 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.
  ¶15 The event at issue is not the alleged conduct that gave rise
to the criminal charges against Steinly. The IDA, after all, does not
define the elements of aggravated robbery or aggravated burgla-
ry, nor does it dictate sentences for, or other consequences of,
those crimes. See Landgraf v. USI Film Prods., 511 U.S. 244, 269–70
(1994) (explaining that a law is understood as retroactive if it “at-
taches new legal consequences to events completed before its en-
actment”). Instead, the IDA regulates Steinly’s activity occurring
within the course of the criminal proceedings against him. It pre-
scribes, specifically, the terms and conditions of the provision of
government-funded defense resources long guaranteed as an ad-
junct 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 Amend-
ment right to “the basic tools of an adequate defense”).
  ¶16 The assertion of that right requires the confluence of three
elements: (a) the legal right to counsel and associated defense re-
sources, which is generally triggered by the filing of formal crimi-



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                          STATE v. STEINLY
                        Opinion of the Court

nal charges; 2 (b) the legal right to have those defense resources
provided by the government, which is implicated by a determina-
tion of indigency; 3 and (c) the assertion of a request for defense
resources, typically by the filing of a formal motion requesting
such resources. 4 When these three elements come together, a de-
fendant’s assertion of his right to government-funded defense re-
sources 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).
  ¶17 The 2012 amendments to the IDA apply to Steinly’s motion
under this framework. Steinly’s assertion of his mature right to
defense resources came after the effective date of the 2012
amendments to the IDA (May 8, 2012). The charges were filed be-
fore then and private counsel appeared before that date, but the
motion requesting funding for defense resources was not filed un-
til June 4, 2012. Thus, as of the date of the culmination of Steinly’s
assertion of a right to defense resources, the amended law was in
place. Application of the 2012 amendments is therefore appropri-
ate and does not run afoul of the general rule against retroactivity.
We reverse the district court’s decision on that basis.
                                  B
  ¶18 Steinly presents two challenges to the constitutionality of
the 2012 amendments. First, he claims that the amendments in-

 2 See 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”).
 3  See 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
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”).

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                       Opinion of the Court

fringe his constitutional right to counsel of his choice while also
preserving his access to necessary defense resources. Second, he
asserts that the 2012 amendments run afoul of the Equal Protec-
tion and Uniform Operation clauses of the United States and Utah
Constitutions. Neither challenge has merit.
  ¶19 The constitutional right to counsel encompasses the pre-
rogative of choosing counsel of one’s choice and of receiving re-
sources necessary to an adequate defense. See Ake v. Oklahoma, 470
U.S. 68, 76–77 (1985). Such rights are qualified ones, however, af-
fected by the “avenues which [the defendant] chose not to follow
as well as those he now seeks to widen.” United States v. Mac-
Collom, 426 U.S. 317, 326 (1976). When a defendant elects an ave-
nue that steers away from the public representation provided by
the government, he has received the private counsel of his choice
and has no constitutional right to defense resources from a sec-
ondary source backed by government funding.
  ¶20 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 attor-
ney he cannot afford.” Wheat v. United States, 486 U.S. 153, 159
(1988). The United States Supreme Court, moreover, has not pre-
scribed a single orthodoxy for the provision of the defense re-
sources 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 re-
tention of government-funded counsel. Thus, a defendant has
every right to decline the counsel the government offers in favor
of the one he prefers, but in so doing, he loses the right to a pub-
licly funded defense. See Wheat, 486 U.S. at 159. 5
 ¶21 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


 5 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.”).

                                  7
                           STATE v. STEINLY
                        Opinion of the Court

may be privately retained by a criminal defendant,” Ross v. Mof-
fitt, 417 U.S. 600, 616 (1974). 6 Accordingly, the constitutional ques-
tion before us is whether the defense available to indigents
through the “exclusive source” of a public defense is “adequate.”
And Steinly has not carried his burden under this standard. He
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 estab-
lishing a new constitutional right to unbundled defense resources.
  ¶22 Under the 2012 amendments to the IDA, a defendant who
opts out of public representation has also opted out of public de-
fense resources. And nothing in the Constitution requires a differ-
ent result. We accordingly reject Steinly’s challenge to the consti-
tutionality of the 2012 amendments to the IDA under the Sixth
Amendment of the United States Constitution.
 ¶23 We also reject Steinly’s constitutional challenges under the
Equal Protection Clause of the United States Constitution and the
Uniform Operation of Laws Clause of the Utah Constitution. 7 See
U.S. CONST. amend. XIV, § 1; UTAH CONST. art. I, § 24. Under these
provisions, Steinly asserts that the amended IDA discriminates
without any rational basis against indigent defendants who have




 6  See also Ross v. Moffitt, 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.”).
 7  Steinly also alludes to a constitutional challenge on due pro-
cess grounds. But Steinly did not brief that issue independently or
provide any due process authority distinct from that in his equal
protection and uniform operation arguments. He has therefore
failed to carry his burden of persuasion and, to the extent he made
one, Steinly’s due process argument is rejected.

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                       Opinion of the Court

retained private counsel. 8 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 inter-
est 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 up-
hold the statute on that basis.
                                 C
  ¶24 Steinly’s final argument is that he is entitled to public de-
fense resources even under the amended IDA because the County
failed to “provide all legal defense elements as a single package,”
as those terms are used under Utah Code section 77-32-301(2)(c).
In the district court and on this appeal, the County responded by
insisting that it has in fact provided all elements of an effective
defense as a “single package.” But the district court stopped short
of reaching this issue—noting that there was no need to “get into
the details” of the issue or to hold the “evidentiary hearing” that
might be necessary to resolve it given that it had ruled in Steinly’s
favor on alternative grounds.
  ¶25 We likewise decline to reach this issue on this interlocutory
appeal. Because the district court has not yet had an opportunity
to address this issue, and because its resolution may turn on fac-


 8 See State v. Chettero, 2013 UT 9, ¶¶ 20–22, 297 P.3d 582 (explain-
ing that in equal protection claims, “rational basis” scrutiny ap-
plies absent a suspect class or fundamental right at issue, and re-
quires 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 Constitution
unless a classification is of a kind “so generally problematic (and
so unlikely to be reasonable) that [it] trigger[s] heightened scruti-
ny,” such as race, gender, and certain fundamental rights).

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                          STATE v. STEINLY
                        Opinion of the Court

tual matters not developed on the record before us, we remand to
allow the district court to address it in the first instance if Steinly
continues to press it.
                                  III
 ¶26 For all these reasons we reverse the district court’s decision
declining to extend the 2012 amendments to the IDA while up-
holding the amendments against Steinly’s constitutional attack.
And we remand for further proceedings not inconsistent with this
opinion.
                         ——————




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