Judicial Council Meeting Minutes

Welcome and Approval of Minutes

Chief Justice Howe welcomed all those in attendance. The minutes of the March Council meeting were reviewed.

Motion

A motion was made to approve the minutes of the Council's March meeting. The motion was seconded and unanimously carried.

Report from the Chair

Chief Justice Howe presented his report to the Council. He reported that he felt the Legislative Update on March 26^th was successful. In addition, he was pleased with the other issues which were combined with the update, as this resulted in efficient use of the time the judges spent away from their respective jurisdictions.

Chief Justice Howe commented that he was impressed with the Family Court presentations made by the three visiting judges at the Legislative Update. He noted that in addition to the importance of the subject matter of their presentations, he was impressed with the enthusiasm and dedication they seemed to have regarding their work.

He continued his report by informing the Council of the upcoming Conference on Public Trust in the Judiciary, in mid-May. A team consisting of 5 members and headed by Chief Justice Howe will attend. The Council will serve as the State's committee. The program is sponsored by the ABA, the CCJ, and COSCA. Chief Justice Howe informed the Council that consideration must be given to choosing an area where a difference can be made toward increasing public trust and confidence in the judiciary.

Court Administrator's Report

Dan Becker began his report by informing the Council of Richard Schwermer's involvement in the State's Charitable Fund Drive, serving as Campaign Director. He emphasized that this was the state's fund drive, not limited to the Administrative Office of the Courts. The total amount of contributions by state employees was $376,000, an increase of $50,000 from the prior year. Ray Wahl served as coordinator for the courts, and contributions from court employees increased by $4,000.

Mr. Becker informed the Council that the Justice Court Board of Judges met earlier in the month during the Justice Court Judges' conference, and elected a new Justice Court representative to the Council, Hon. Clair Poulsen. Judge Poulsen will replace Hon. John Sandberg, whose term expires in September. Other replacements to the Council will be named at the Annual Judicial Conference.

He continued by noting that the Legislature's first meeting after the legislative session would be held on April 21^st. Among the topics to be considered during the interim:

• Co-habitant Abuse legislation (Sen. Spencer)
• Study of selection, retention, discipline, and removal of judges (Rep. Tyler)
• Impeachment and removal from office; study of constitutional amendments re impeachment rules (Rep. Ure)
• Justice Court judges to study feasibility of allowing justice court judges with legal training to hear
• Class A misdemeanors (Rep. Bennion)
• Juvenile Justice Audit (Sen. Hillyard)
• Vote for retention of judges (Rep. Bryson)

There will be two more Council meetings with scheduled Family Court presentations. Mr. Becker informed the Council that the next step would be to plan the subsequent workshop which was previously discussed. This would likely need to be coordinated with the Boards of District and Juvenile Court Judges. Both district and juvenile judges will also hold their conferences in the next several weeks. Mr. Becker informed the Council that there would likely be much discussion among these judges with regard to the Family Court issue. He offered his perception to the Council, saying there seems to be a continued preoccupation by some judges with the notion that the Council is committed to advancing a structural change with a family court. He has received some feedback from other judges who are concerned that more emphasis, attention and focus are being placed on the prospective structural change, thus diverting the focus and attention away from the real issues and problems connected with family law.

He continued by saying that there does not appear to be much of a constituency for a structural change from within the courts. He recommended that the Council consider articulating a strong support for the existing court structure in the juvenile and district court, particularly since Utah's juvenile system is the only statewide juvenile system in the nation. He recommended that there be a presumption that family law issues can be addressed within the present court structure, and that a structural change should be made only if there is a determination that administrative, procedural, and service alternatives do not offer a means to resolve the issues which have been raised and presented to the Council.

There was discussion on whether the Council's intent was to adopt the recommendations of the Family Court task force report, or to use the report as a starting point in targeting problems existing in the system with regard to family law. Mr. Becker indicated that his perception was that when the Council met in Sun Valley, the report was viewed as a possible option to address the issues raised, but not the sole or primary option to explore in addressing said issues. Rather, the process to offer a forum whereby the legal community and agencies could present their problems. Upon completion of this step, the Council could then decide on the problems to be addressed, and examine possible solutions --- among them, the task force's recommendations with respect to a structural change. Mr. Becker continued by saying that the perception of some on the bench, agencies and the community may be that this process is merely a formality before implementation of a structural change. Judge Lindsay indicated that she also had the same perception, indicating that some members of the bench seem focused on the possibility of a structural change rather than on changes being made in the existing system to better address the problem areas.

More discussion followed, and most of the Council agreed that a change in direction could be taken, with emphasis on pursuing other options before considering a structural change. One question raised was whether more time would be taken and an additional task force created to focus on the ideas for solutions and their implementation. Mr. Becker recommended the formation of a committee to examine the issues based on the past presentations, and subsequently preparing an array of options for the Council to consider. This committee could also prepare the one-day workshop to be held with the Council prior to any final position it adopts. This would be a six-member committee, comprised of two Council, District, and Juvenile Board members.

Judge Johansen stated that the perception of the majority of district and juvenile judges is that a structural reorganization is forthcoming. That further, the idea of leaving such a change as a last option, rather than removing it as an option, will not accomplish the goal of exploring solutions to the existing problems in an open-minded manner. There was additional discussion on the possible consequences of removing the option of a structural change.

In sum, Mr. Becker made the following recommendations:

1) That the Council articulate a strong position, stating ". . . to emphasize addressing family law issues by administrative, procedural, or service-program solutions . . . a change to a structure providing for a Family Court is the last option that should be considered, after all others [options] have been examined and found not to be sufficient to address the problems the Council has heard . . .".

2) The formation of a committee to examine the issues based on the past presentations, and subsequently preparing an array of options for the Council to consider. This committee could also prepare for a one-day workshop to be held in the Fall, prior to any final position taken or determination made by the Council. This would be a six-member committee, staffed by Tim Shea and comprised of two Council, District, and Juvenile Board members.

Chief Justice Howe stated that the proposed recommendations had merit, reiterating that the problems should be identified, as well as how they can best be resolved, even if that solution calls for a structural change.

Mr. Becker added that if the Council proceeds in taking and articulating a strong position as previously outlined, he would like to attend the district and juvenile bench meetings to discuss this issue with the judges in detail.

Motion

Judge Schofield made a two-part motion:

First. that the Council adopt the recommendation made by Mr. Becker; that the Council make the following affirmative statement: That the Council has a great desire to improve the handling of family issues, but does not plan to pursue the option of a structural change as a first option for resolution.

Second, that the Council defer to the Management Committee to examine, recommend, and appoint a committee as per the recommendation made by Mr. Becker.

Records Retention Schedule

Dan Becker brought to the Council's attention a matter that was placed on the Council's consent calendar, involving changes to the records retention schedule. He informed the Council that Tim Shea met with the Director of State Archives, who made some suggestions prior to the adoption of the rule change. Tim Shea, in turn, informed the Council that State Archives has raised some concerns regarding the proposed records retention schedule. The recommendations included: disposing of records once they have been microfilmed, and that the microfilmed record would be the primary record; a change that storage of domestic cases containing information on alimony and child support issues be increased from two years to three years.

The issue of greatest concern was that court records would be moved to archives much more quickly; this has resulted in an added provision that records would be held at least two years prior to being transferred to archives for storage. The suggestion was made that the retention period be increased to three years, and this suggestion was noted accordingly. Mr. Shea informed the Council that there is a difference in retention between the records center and State Archives. While the records center is considered an extension of the courts' storage, allowing for supplements or amendments to files, State Archives does not allow for the same procedures.

After further discussion, the proposed amended schedule was submitted to the Council for approval.

Motion

There was a motion to approve the revised records retention schedule. This motion was seconded and unanimously carried.

West Valley City Proposal

Richard Schwermer presented this matter to the Council, having previously brought same to the attention of the Management Committee at its March meeting. West Valley City proposes to create an alternative forum for resolving traffic and other minor offense currently being heard in the West Valley District Court. The Management Committee requested that AOC staff examine the proposal and its possible effect on the courts system. Mr. Schwermer distributed to the Council a memorandum, prepared by Peggy Gentles, which addressed the issues of caseload/resource shifts, state/general fund, surcharge account, capital facilities account, etc.

Paul Morris of the West Valley City Attorney's Office, also presented to the Council the City's position on this matter. He explained that the city would like to have a full-service district court. However, lack of space and the high volume of cases (mostly the municipality's cases), prevent the administration from achieving this goal. The City has, therefore, opted to create an administrative process by which collection of traffic fines, etc., can be enforced. Mr. Morris indicated that the City would like to sublease back from the courts the space courts currently lease from West Valley City. Mr. Morris indicated they would like to begin implementation as soon as possible. The City plans to decriminalize traffic citations from misdemeanors to moving/non-moving violations, a civil matter.

Mr. Morris was asked if the plan was viewed as being in conflict with state law. He indicated that, upon reviewing case law, it is the opinion of the City Attorney's Office that the requirement is for uniform violations, not uniform penalties. An administrative law judge (ALJ) would be utilized in the same manner as the referees in a municipality. Collection of fines will be pursued through Small Claims Court, with revenues from collections deposited into the state's general fund. Of greater impact on the general fund would be the loss of the state's portion of the fine revenue.

Mr. Morris added that

1) West Valley City currently has the authority to create its own Justice Court, which would accomplish the same objective; and
2) the city's projections indicate that this would not cause any additional financial burden to the state.

Judge Frank Noel, Presiding Judge of the Third Judicial District, was in attendance at the meeting to answer any questions and offer his perspective of this matter. He stated that overall, the Third District took a neutral position on the proposal. However, the district would like to see the West Valley location eventually become a full-service court, as are the Murray and Sandy locations. In order to do this, judicial resources need to be made available. It is uncertain whether the proposal would net this type of result. If it does, the district would allow those filings in the West Valley location. Judge Noel indicated that the district must still be convinced that this result is likely. He was asked about the likelihood of West Valley eventually becoming a full-service location. He indicated that the only way for this to happen would be to have additional facilities. He concluded by saying this is not likely to occur in the near future.

Chief Justice Howe indicated that West Valley City's proposal has the potential to be a major innovation in the courts system. However, he expressed concern about the city's justification for the proposal, as well as by the plan to decriminalize and administratively dispose of the same moving traffic violations that are criminalized by the Legislature.

The matter was further discussed and Dan Becker informed the Council of a telephone call he received from the Salt Lake City Attorney's office. The City Attorney's office is aware of the West Valley City proposal and stated that at such time as the Salt Lake City Council determines that this proposal is being considered, pressure may be put on Salt Lake City to implement the same proposal. There was further discussion about the fiscal impact on the courts. The guardian ad litem program could be affected by the proposal, as that program receives revenue surcharges as a portion of its monies.

Another concern expressed was the issue of due process in moving traffic violations matters. West Valley City itself is unsure of the appeals procedure. There are no statutes regulating this step, there is no process for judicial review if hearings are held before an ALJ, which could result in an "erosion" of constitutionality.

Motion

A motion was made to urge West Valley City not to move forward with their proposal, due to the numerous issues to be considered; that further, the Council affirmatively state that because of these issues, the Council does not approve of the proposal and will, therefore, not approve subleasing the space in the Third District, West Valley location as requested by the West Valley City Attorney.

The motion was seconded and carried unanimously.

Subcommittee Reports

Judge Braithwaite reported that the Policy and Planning Committee meeting minutes had been amended and approved. One issue of importance was that of closing divorce financial records. Several months ago, Brian Barnard requested that these files be maintained as confidential. After researching the matter, it was found that this can already be done upon a motion to the court. Tim Shea clarified that currently, both Judicial Council rules and state statute indicate that an individual's financial records are confidential, unless another rule or statute requires their disclosure. One concern of the Policy and Planning Committee was that identification or determination of what portions of files to be kept confidential was an additional burden on court clerk personnel.

Another matter discussed was the issue of insurance coverage for senior judges. Judge Kenneth Rigtrup was in attendance to address this issue. He stated that originally, those affected were judges and spouses under 65 who had exhausted the seven-year maximum health coverage, regardless of whether they were serving as active. When it became apparent that the fiscal requirement would be significant, he amended the motion to suggest that those judge who accept active senior status and continue serving the judiciary could continue receiving health insurance coverage. This motion must be treated as a building block request, and would also require a rule change.

Regarding the matter of closure of divorce financial records, Mr. Shea noted that if the Council concurs with the recommendation made by the Policy and Planning Committee, the next step toward amending the existing rule could be taken. After some discussion, it was determined that this matter should be placed on the Council's next agenda.

The Legislative Liaison Committee had no new developments to report.

Report from the Judicial Conduct Commission

Steven Stewart reported to the Council on behalf of the Judicial Conduct Commission. He informed the Council that the Commission is now fully staffed with the recent addition of the newest member, Sen. Michael Waddoups.

He continued by stating that thus far during the fiscal year, 95 complaints have been filed with the Commission. Most of the complaints are against district judges, although numerous complaints have recently been filed against justice court judges. 85% of the complaints were dismissed after preliminary review, with another 5-10% being dismissed after preliminary investigation. He also distributed a summary of 4 complaints in particular which were dismissed after preliminary review. These cases were filed under Canon 3E of the Code of Judicial Conduct.

Following Mr. Stewart's summary of the first case, a case involving a complaint filed against a small claims pro tem judge, there was some discussion on how the Commission views attorneys who volunteer their time as small claims pro tem judges. Mr. Stewart indicated that such complaints are treated in much the same manner as those against district judges. He was asked how these attorneys could be disciplined, since they are only volunteers and not sitting judges. Mr. Stewart indicated that if someone undertakes a judicial office, whether it be as a volunteer small claims pro tem judge or part-time justice court judge, the Code of Judicial Conduct must be followed. It was suggested that detailed education or training regarding the Code of Judicial Conduct should be offered to attorneys who volunteer as pro tem judges prior to hearing any cases; this would be in addition to the annual training offered to pro tem judges in the area of ethical considerations.

Mr. Stewart was asked if he felt that the Commission has the duty or opportunity to make recommendations to the Ethics Advisory Committee in the event problems are found with portions of the Canons. He indicated that any issues concerning the Canons are generally brought before the Judicial Council. He continued by saying that Canon 3B(7), unlike the model rules, makes no distinction between procedural and substantive ex parte communications. There was discussion regarding the need for a mechanism for identifying potential problems and presenting them to the Ethics Advisory Committee for resolution. Mr. Stewart stated that he would bring this issue to the attention of the full Commission.

Weber County Drug Court

Rick Davis, Trial Court Executive in the Second Judicial District, updated the Council on the creation of a drug court in Weber County. Mr. Davis informed the Council that the Second District has accepted Weber County's invitation to participate in the grant process for creation of a drug court. This was done as a result of discussions between Mr. Davis and Dan Becker. The grants are planning grants, one each to the prosecutors' offices in Davis and Weber counties.

Mr. Davis indicated that the local boards of judges are supportive of this process, the objective of which is to develop better ways to handle drug-related cases. Davis County is halfway through and further along in the planning process, with Judge Memmott having visited drug courts in California and Louisiana. The Weber County grant application is pending final notification.

Dan Becker informed the Council that, currently, there are drug courts in operation in the Third District and Juvenile Courts, as well as Fourth and Eighth Districts, with Fourth District's being the most different. Rick Schwermer explained the differences in each of the courts. The main similarity between the courts is that they all combine the use of treatment and the judge together along with more frequent visits to the court. The model is the same, with the application differing in each district.

Mr. Becker and Mr. Schwermer informed the Council that this issue will be discussed further at the planning session in August. The federal grant funding that has been awarded to these locations is nearly exhausted and a determination must be made at that juncture on how to proceed or continue with the "specialty" courts, and how they will be subsidized. Those locations having received funding must submit reports on the impact these courts have made in the system and the community. These reports will subsequently be presented to the Council at the planning session. Judge Glasmann indicated that the local board has been aware of the difficulty involved in moving into these programs, given the cases and their level of activity combined with the limited amount of judicial resources available. The courts currently in operation will have prepared their evaluation information and other data regarding their operations prior to the Council's August planning session.

FY 2000 Budget Plan

Dan Becker presented to the full Council a summary of the FY2000 budget plan, which was presented in detail to the Management Committee at its March 25th meeting. He explained that a different approach was taken on the budget process this year than in previous years. With the new approach, budget needs were prioritized before appropriations were made by the Legislature, according to the objectives set at the planning session last August, rather than assessing distribution of monies after they have been received.

There are three parts to the budget:

1) continuation;
2) additions by the Legislature; and
3) discretionary money: what the system has and how to spend it.

A. Fiscal Actions of the 1999 Legislature and makeup of FY2000 budget;

B. Initial Spread of Appropriated Funds;

C. Discretion Beyond Initial Spread;

D. Demands Without Appropriated Funding; and

E. Recommended FY2000 Budget Plan

Mr. Becker concluded by stating he felt that the majority of the Council's budget objectives were achieved, and that the process seems to have been successful.

Motion

A motion was made for the Council to go into executive session. The motion was seconded and carried, at which time the Council convened an executive session.

Motion

A motion was made, pursuant to the Council's executive session, that the Council advise Judge Pat Brian that without giving weight to the merits of his request for leave of absence, that he was elected to a term of office. That further, the Council does not have the authority to vary that elected time to a term of office, and that the Council does not believe that any such authority exists statutorily. Based upon the foregoing, the Council denies his request. The motion was seconded and carried unanimously.

Other Business

Dan Becker informed the Council that further investigation of the West Valley City proposal showed one of the reasons to be the way the referees currently operate in that jurisdiction. It is his understanding that both moving and non-moving violations that come before referees are dismissed if defendants pay the fine plus an additional $15 charge. This has some serious implications, and raises yet another issue, that being how referees are used. Brent Johnson indicated that it is illegal to collect money in this manner and dismiss a case without sending the information to the Division of Motor Vehicles, and unconstitutional to pay a fine without a conviction. However, this can be done through a plea in abeyance, which involves a motion by a prosecutor, and the court in turn to issue an abeyance order. Additionally, this is the first time this type of arrangement appears in print in a court document. This raises issues of ethical liability for judges who participate in this procedure. There was further discussion of the issues causing concern.

Motion

A motion was made to carry this issue to the Council's next meeting, with Judge Reese being invited to attend. The motion was seconded and carried unanimously.

Family Court Presentations

Robin Arnold-Williams, Executive Director of the state's Department of Human Services, presented to the Council the Department's position on the "family court" issue. She began with an overview of the agencies comprising the Department. Many of these agencies are involved with the court system. She said the Department is often criticized as being fragmented, duplicative and inefficient, particularly in the area of sharing information. She indicated that this is somewhat of a parallel to the recommendations contained in the 1994 Family Court Task Force with regard to the family law area of the courts. She noted that the criticism of the current structure of Utah's court systems falls into three general categories: 1) fragmentation of how cases are handled and a lack of information-sharing regarding the same family across court jurisdictions; 2) duplication of resources, and inefficient use of limited judicial resources; and 3) the potential for divergent and conflicting court orders. Based upon these issues, Ms. Arnold-Williams indicated that the Department's position is that it favors the establishment of a family department within the district court system. The position was unanimously supported by all the agencies within the Department, and was conveyed to the Council by way of a formal document with Ms. Arnold-Williams' signature. She outlined the key points contained in the Department's position paper.

She stated that although there have been many successful efforts to improve the court system, fragmentation remains a problem. As an example, she noted that the Office of Recovery Services deals with a large number of child support recovery cases. There are cases in which multiple orders for child support have been issued against obligors from various courts. These orders are issued from the district court, juvenile court, administrative agencies with an administrative law judge, and from jurisdictions from outside the state. She cited two cases where families might have benefitted from one order within one court had the court been aware of a given family's situation.

She indicated that the creation of a family court would pose challenges, but the long-term benefits would outweigh the initial costs. Areas that should be addressed to ensure the success of a family department include: professional training and education, case management, adequate funding and expansion of services (particularly of guardian ad litem and alternate dispute resolution/mediation), technology, and role definition/information sharing/calendaring.

She concluded by stating that, if the Council's decision was to move toward a family court, the Department of Human Services would encourage statewide implementation of same. However, if a family court would not be considered, then the Department's recommendation would be for the courts to develop alternative strategies in the existing district and juvenile courts to address the areas as noted above. Ms. Arnold-Williams was asked if, in her opinion, a structural change was needed and if so, why. She responded by stating that the Department reached their conclusion after interdepartmental communications and after discussions held with other agencies in other states with family courts. She indicated that structural change was not first on the list in producing change within an organizational system. However, she indicated that there comes a time when the need to bring things together is so broad, that a structural change is needed. The Department sees this as an ideal time for such a change if the Council determines that a structural change should be pursued.

Roz McGee and Mary Boudreau of Utah Children also presented to the Council the agency's position on the family court issue. The agency has had a representative at each Council meeting.

Ms. Boudreau presented the agency's position, stating that this is not the first time the family court issue has been raised in the state. Numerous studies have been conducted in the past, and recommendations that have been made have been supportive of a family court. However, nothing has ever been done with regard to these recommendations. She gave an overview of the research she has conducted on the family court issue in Utah.

She next summarized the agency's position statement. The statement examines the problems which still exist in the family law system. They are: split jurisdictions; procedural coordination problems; inefficiency and duplicative services; and unequal allocation of resources between families in juvenile and district court. The need also exists for specialized judges and staff, as well as extended guardian ad litem services and other services focusing on the needs of the children.

The final item she addressed was the legislative audit of the juvenile justice system. She indicated the agency's concern that the audit proposes revisions to only one portion of the juvenile justice system, but fails to address the advisability of creating a system that integrates all family law functions. She also indicated that the audit does not recognize the significant role of the Department of Child and Family Services.

She stated that the agency believes there should be a unified family law system, whether through a family court process establishing better coordination, or through creation of a unified family court structure. Toward this end the agency recommended that the Council consider the creation of a planning group, as opposed to another task force. This group would consist of 8-10 members from the judiciary, legislative, and executive branches of government.

She explained how their recommendations could be implemented:

• determine whether a structural change is needed, or is it better to change the existing system.
• strategic proposal and then for submission to the Legislature
• proposing methods for evaluation
• identify pilot projects.

The meeting was adjourned following the Family Court presentations.