Judicial Council Meeting Minutes

Welcome and Approval of Minutes

Chief Justice Howe welcomed everyone in attendance. He noted that Judge Braithwaite was excused, and Judge Lynn Payne attended in his place. Myron March indicated that Dan Becker was ill. The Council reviewed the minutes of the April meeting. Judge Schofield was erroneously listed as a guest. Two other corrections were made.

Motion

A motion was made to approve the minutes, as amended. The motion was seconded and carried unanimously.

Report from the Chair

Chief Justice Howe reported to the Council that a five-member team (Chief Justice Howe, Judge Tyrone Medley, Dan Becker, Diane Cowdrey, and James Jenkins) attended the National Conference on Public Trust and Confidence, held in Washington, DC and sponsored by the ABA and the National Center for State Courts. Chief Justice William Rehnquist of the U. S. Supreme Court was keynote speaker. Participants discussed ways to enhance the public's trust and confidence in the judiciary. Problems such as racial bias and the high cost of legal services were also discussed. Chief Justice Howe said that a large majority of attendees agreed that it is the responsibility of judges to take the leadership initiative in promoting public trust and confidence in judiciary. He stated that the Council should act as the leadership body in promoting the public trust and confidence objective for the state, and that the five-member team will have a proposal to submit to the full Council for its approval/endorsement at the meeting in Sun Valley.

Chief Justice Howe concluded his report by informing the Council that the Judicial Nominating Commissions will convene after Governor Leavitt has appointed the members to these commissions. These commissions will meet regarding the two appointments to the juvenile bench in the First and Seventh Districts.

Administrator's Report

Myron March reported to the Council on behalf of Dan Becker. He informed the Council that on May 3^rd, at its Law Day Luncheon, the Utah State Bar bestowed the "Scott M. Matheson Award" to Utah judiciary for judges and their law-related education activities in schools statewide; and 2) on May 4^th, Rolen Yoshinaga was awarded the "Smart Utah Electronic Community Award" from Smart Utah for technology advances in the courts, and digital signature.

Mr. March also informed the Council that Diane Hamilton, ADR Director at the Administrative Office of the Courts, has resigned her position effective May 21^st. He extended an invitation to the Council to attend a farewell reception in her honor, planned for May 24^th at the Matheson Courthouse.

He indicated that the appointments to the Nominating Commissions are pending completion by the Governor's office. The deadline for the applications for the two juvenile court positions was May 14^th at 5:00 p.m. The final item on which he reported was the Family Law/Court issue. Dan Becker met with the juvenile and district bench, at which time the judges were informed of the Council's position that a structural change would only be pursued as a final option, if the existing problems could not be addressed or resolved through other means. Both benches were supportive of the Council's decision. He concluded by reminding the Council that final arrangements for the meeting in Sun Valley have been made, and encouraged those who have not yet made their lodging arrangements to do so as soon as possible. The Council will hold its meeting on June 30^th, and a breakfast meeting will be held on Friday, July 2^nd .

Mr. March informed the Council that the planning committee for the Annual Judicial Conference met to discuss topics for presentation, and asked that any ideas or suggestions for topics which the Council may have could be forwarded to either Diane Cowdrey or to Mr. March.

At Mr. March's request, Richard Schwermer relayed to the Council the legislative study topics to be addressed in the interim. Mr. Schwermer stated that a joint meeting was scheduled between the following committees: education, law enforcement, criminal justice, and judiciary, to discuss the issue of guns; other issues include: judges' issues (e.g., retention, selection, discipline), and the juvenile justice audit.

Subcommittee Reports

Judge Schofield reported to the Council on two of several items discussed in the Management Committee's last meeting, held on May 4^th. These items were subsequently placed on the Council's consent calendar for the Council's information. First, the Committee approved a request for a continuation grant from the Commission on Criminal and Juvenile Justice (CCJJ) by the Racial & Ethnic Fairness Task Force. The objective of this grant is to provide a mechanism to ensure implementation of recommendations resulting from the Task Force's juvenile research efforts. CCJJ is providing $62,671 to hire an FTE for this purpose.

The second item on which Judge Schofield reported was the customer service proposal, which Seventh District Court Executive Tim Simmons presented to the Management Committee. The Council was given an overview of the project's inception; the objective of this project is to provide better customer service to the public. Judge Schofield stated that the Management Committee approved a grant application to the State Justice Institute in the amount of $5,000 to modify/adapt a video produced by the Alaska court system. This video, which was viewed by the Management Committee, is essentially a training video dealing with responding better to the needs of the public. It would be tailored to fit Utah's court system, dubbing in comments by the Chief Justice, court administration, and clerk personnel.

Judge Burton requested an opportunity to discuss the customer service issue; particularly, the proposed customer service guidelines. He referred to the "Education" section of the proposed customer service checklist, citing items dealing with staff and judges receiving orientation regarding customer service issues, and statewide training for staff and judges regarding customer service in the courts. Another item about which he expressed concern was judges establishing timeliness and deadlines in a case or cases. He sought clarification on how people who come to court are considered "customers".

Judge Russell Bench explained that the only item on the consent calendar is the issue of the request for $5,000 from the State Justice Institute, and that the proposed guidelines were provided as and for purposes of background information. The proposed guidelines will be discussed in the future, after presentation to the various Boards of Judges, individual districts, etc. To eliminate and/or avoid further confusion of the issues to be approved, and issues to be discussed in the future, the following motion was made:

Motion

Judge Schofield made a motion to remove from the Council's consent calendar all items regarding proposed customer service guidelines and to leave only the issue of the Management Committee's approval of the $5,000 grant request. The motion was seconded and carried unanimously.

Following this motion, Judge Schofield presented one final item discussed by the Management Committee. The Council authorized the Management Committee to recommend individuals to serve on a Family Court committee, which would proceed in identifying both issues and possible solutions, and set the agenda to be discussed at the Fall workshop. Accordingly, the Committee named the following persons to this group: Hon. Michael Glasmann, Chair;  Hon. Kay Lindsay; Hon. John Sandberg, Hon. Russell Bench, Hon. Larry Steele,  Hon. Mark Andrus, Hon. Stephen Henriod, and Hon. Ben Hadfield. This committee will be staffed by Tim Shea of the AOC. Additionally, the date for the workshop, which will include the Council and the Boards of Judges, has been set for September 24th.

The Policy and Planning Committee had no new developments to report to the Council. The Legislative Liaison Committee reported that they are preparing to meet with legislators to discuss issues to be presented to the Interim Committee.

Pro Tem Judges

Bar Commissioner David Nuffer and John Schindler of the Southeastern Utah Bar appeared before the Council to address some concerns regarding the notification process for pro tem judges. Mr. Nuffer began by stating his understanding that a grant was received to fund two pro-tem judge positions in the state, one each in the 1^st and 7^th Districts. He outlined the notification procedures of which he was aware that had been followed. These procedures included: publication in the Wasatch front newspapers, trial court executives in the aforementioned districts being contacted and asked to post notices in both locations, and the Bar's Family Law section being notified of the positions. He noted that the positions were filled in February.

Mr. Schindler continued the presentation, describing what happened regarding the applications and notification. He stated that he had no knowledge about the vacancy until positions were filled. The Council was informed that the Southeastern Utah Bar is made up of 20 members. Mr. Schindler indicated this group was unhappy about the process, and their lack of knowledge of the vacancy. He felt that, for purposes of effectuating a change regarding future notices, the Council would benefit by an awareness of the size of the Bar membership in the southeastern portion of the state. He stated that, although a rule is in place and is followed, that rule may not always apply in some circumstances. He requested that the Council examine the existing rule and consider incorporating changes which would give adequate notice of such vacancies to the Bar membership in rural areas.

Mr. Nuffer continued by saying that judicial vacancies are infrequent; however, they have lasting effects in the community. Pro tem judges do not have the same impact, but the Bar members expressed to Mr. Nuffer and Mr. Schindler their preference to add notices published in the local papers. Also suggested was a direct mailing to rural Bar members, since there is a significantly lower number of attorneys in this area, and this is something with which the Bar can assist. The Utah Bar has posted judicial vacancy notices on their website as well as in the Bar Journal.

Mr. Nuffer concluded by asking the Council, on its part and on the part of the AOC staff, to consider as policy notification or communication of future vacancies to include the rural Bar members. He stated that the major concern of these members is that the pro tem judge positions are a "pipeline" to full-time judge positions.

Tim Shea was asked if a rule currently exists regarding advertisement of pro tem positions. He indicated that there is a rule on recruitment, but it is designed around small claims pro tem positions. Myron March was asked how the permanent position was advertised. He explained that the rule, which the AOC followed, requires that the position should be advertised for a 30-day period, as well as contacting the Bar. This was also done. The position is typically published in the Bar Journal; however, when the publication deadline is missed, Mr. March explained that notices are sent to the entire Bar membership. Notice is also published in the local newspapers. Judge Schofield suggested referring this matter to the Policy and Planning Committee.

Motion

There was a motion to refer this matter to the Policy and Planning Committee for further consideration and appropriate recommendation to the Supreme Court. The motion was seconded and carried unanimously.

Private Financial Records

Tim Shea presented to the Council regarding financial records contained within court case files, specifically those filed as part of divorce proceedings with respect to child support issues. This issue arose as a result of a rule change sought by Brian Barnard regarding the sealing of financial records in order to make them private. The Bar's Family Law section was asked for its input, and they concurred with Mr. Barnard. Mr. Shea indicated that David Nuffer sent a letter to Mr. Shea, addressing the same issue. Mr. Shea found in his research efforts that both state statute and court rules have a provision wherein an individual's financial records are classified as private. This means that no rule change would be required. The Policy & Planning Committee, after considering the issue, made a recommendation to the Council that the rule be amended to reclassify the record as public, but that the parties can request the entire file to be sealed, with the exception of the decree.

Judge Glasmann indicated that the Policy and Planning Committee made its recommendation after considering the easiest way for court clerks to handle the case files. Clerks were asked for their input on what was the easiest way to administer privacy classification. It is mechanically easier to seal an entire file than to separate one portion of that file from the remainder of the file. Financial declaration records are reasonably easily identified. By law, the decree must remain public. Other records (e.g., medical, etc.) seem public but should be kept private.

There was further discussion on the matter, and David Nuffer informed the Council that he believes the public and attorneys would prefer domestic files to remain classified as private. He encouraged the Council to take this approach. Tim Shea added that the Family Law section of the Bar supports the same approach. He concluded by outlining the options which would require a rule change, invoking the statute, and maintaining the remain status quo. There was also discussion on the types of cases which might also be considered as domestic, and therefore treated as private or non-public, such as: divorce; annulment; paternity; legal separation.

Motion

A motion was made, and after discussion, amended as follows: To consider as private the divorce, annulment and legal separation cases, and that the Policy and Planning Committee should further study other cases, such as paternity and other domestic relations cases, to see if said cases should receive similar treatment. The motion was seconded and carried with one opposed.

Judge Schofield asked about the timing of and procedure for implementation of this proposal, if same were passed as of the date of this meeting. Mr. Shea indicated that procedurally, the recommendation would be released for public comment. Since proposed rule changes are only released for comment twice yearly, if it were passed today, the proposal would not take effect for another year. In the interim, it would be necessary to provide better education for clerks, as well as placing the burden on the parties to identify pleadings as something which should be classified as private. Mr. Shea stated that ultimately, the statute clearly places the obligation for classifying files as private on government entities.

West Valley City Proposal

Paul Morris and John Huber appeared before the Council to offer a follow-up presentation and additional information on the West Valley City Proposal. Mr. Morris acknowledged receipt of the correspondence from Dan Becker on behalf of the Council, wherein the Council's concerns with regard to this proposal were expressed. He briefly reiterated West Valley City's reasoning for the proposal. He explained that he has served on five different committees, all of which at some point studied decriminalizing traffic violations. After researching the issues and studying other states, one proposal was formulated, which allowed decriminalization of certain traffic offenses. West Valley City would like to proceed with this proposal. Their research also showed that other states with cities which decriminalized certain traffic violations were supported by both the courts and the legislatures in those states.

John Huber addressed items which were raised in the letter from the Administrative Office of the Courts, as follows:

1) Authority: West Valley City is of the opinion it has ample foundation to make an attempt to do so. Mr. Huber cited Utah Code Ann. §§ 10-8-30, 10-8-84, and 10-3-703, along with several other statutes from the Code. He also cited State v. Hutchinson, 624 P.2d 1116 (Utah 1980), which states that local authorities may exercise broad police powers that do not conflict with State law.

2) Judicial Review Process: Mr. Huber cited the decriminalized parking enforcement program which Salt Lake City has implemented and enforces. He indicated that West Valley City will follow the program which Salt Lake City currently has in place, and stated that the volume will not compare with that of Salt Lake City. He offered statistical information and said that Salt Lake City issues some 200,000 parking tickets yearly, whereas the number of parking and traffic tickets issued in West Valley City totals to 38,000. He stated that very few of those receiving citations under the city's civil traffic program will ever advance their appeals to the district court level.

3) State Surcharges: The payment process West Valley City would utilize would be similar to what is currently being used in the justice courts. Mr. Huber cited sections of the Utah Code and explained the payment process.

4) Reportability of Adjudications: Sections in the Code were cited which 1) specifically provide for administrative/civil enforcement of traffic offenses; and 2) indicate that there is no limitation to a "court of original jurisdiction". Mr. Huber's research also revealed that the Legislature has provided for administrative/civil traffic enforcement. Thus, West Valley City should not be in conflict with State law by enforcing traffic offenses through administrative/civil means.

Mr. Morris indicated that, due to the Council's concerns regarding authority to implement, he has contacted Rep. John Valentine to request that he propose legislation to decriminalize traffic as a pilot program to first-class cities, such as Salt Lake City and West Valley City. Mr. Morris said that Rep. Valentine philosophically supports this concept, that he would support running such legislation, and that he does not oppose the city's proposal to move forward. He indicated that Rep. Valentine would likely be willing to sponsor a bill during the next legislative session, and acknowledged that there is no guarantee the bill would pass.

Mr. Morris also raised the issue of the city's request to sublease a portion of the court's space, as presented to the Council at its last meeting. He acknowledged the Council's concern that doing so might give the perception that the Council endorses or supports West Valley City's proposal. He therefore requested that the Council reconsider subleasing with a provision stating that it does not endorse the proposal.

He continued by stating that the city's intent in requesting to sublease a portion of the West Valley court location was to better serve the public, not to seek the Council's endorsement of the proposal. He added that in addition to the research conducted by the City Attorney's office, the justice courts and their procedures were vigorously studied; however, they concluded that decriminalization seemed to be a more practical and sensible approach which would allow for better enforcement of traffic citations. Mr. Morris concluded his presentation following discussion on the city's reasons behind the request to sublease the court's space, as opposed to other locations nearby.

The Council took no further action on this matter, thus maintaining their position and supporting the correspondence from the Administrative Office of the Courts.

Tour of Facility

Judges Michael Allphin and Diane Wilkins conducted a tour of the new facilities. Following the tour, Mike Strebel, Second District Juvenile Court Executive, presented to the Council some background information on the juvenile court's evolution in Davis County and eventual co-location with the district court. He noted that this is the first time that all probation officers and juvenile court staff have been located in the same facility in Davis County since 1978. He also presented statistical information regarding referrals to the juvenile court, and the rate at which its caseload is increasing.

Technology Update

Judge Wilkins updated the Council on developments from the Technology Committee. Five items were discussed. First, the committee has conducted a monthly review of potential Y2K problems; thus far there are no known problems which are unresolved to date. This does not mean that no problems will arise, but monthly reviews will continue. Some computers in the juvenile court require replacement, as they are outdated. They will be replaced by the end of this year.

The Committee has adopted and recommended to the Policy and Planning Committee a proposed "Electronic Communications Use Policy" for employees and officials in the court system. The policy will outline the use of electronic communications on state computer equipment, and will apply to the judiciary as well as court employees. He summarized the policy by saying that the same rules which govern use of telephones should also apply to electronic communications. This policy will be helpful in avoiding or dealing with possible abuse of e-mail or internet access. Two policies have been developed, one specifically for judges, since judges are not disciplined in the same manner as court employees. This proposal will eventually be presented to the Council for its consideration and action.

A project is underway which will revamp and revise the juvenile court's computer-based information system which will replace reliance on the State's computer main frame, and will take two to three years to complete. He informed the Council that Rolen Yoshinaga has formed smaller technologically experienced groups to discuss with and educate those who have concerns about the district court's CORIS computer system.

Judge Wilkins also provided a follow-up on his presentation at the Council's last budget planning session in August of 1998. The Legislature made no new appropriations; this may be an item which the Council may want to consider for more discussions. He has asked Mr. Yoshinaga and Eric Leeson to prepare for the standing committee a list of those projects and improvements already approved by the Council or already underway for which there is insufficient funding. The committee will then study the list and make recommendations on which projects should be completed. Many projects which were to be implemented, and which were designed for the Matheson Courthouse, have not been completed due to reductions in appropriations. Judge Wilkins concluded by saying that despite the under-funding in data processing, the staff enjoy the challenge of offering quality services to the court system.

Closing Court Hearings/Records

Tim Shea presented to the Council results of his research efforts on the issue of closing court hearings and records, pursuant to a request made by the Policy and Planning Committee. The issue stems from a complaint to Presiding Judge Frank Noel raised by Jeff Hunt and Michael O'Brien, area attorneys who sought access to court records on two cases. The records had been sealed by judges without following the required procedure. Mr. Shea prepared a memorandum for the Council which outlined what is required by existing law, and what is discretionary in closing both civil and criminal court records and hearings.

Judges are able to seal court records and hearings, but only in limited circumstances and only after following a specific process. Criminal hearings are governed by the Constitution, and are open to the public. He listed the ten procedures for closing a criminal trial or pretrial, said procedures having been set forth by state case law, not by rule. He then outlined the common law procedures for closure on civil cases. His research showed that neither the U.S. Supreme Court nor the Utah Supreme Court has ever established a constitutional right of access to civil hearings; he added that his research was not extensive enough to disprove this negative. He noted a statute (78-7-3), which requires sittings of every court to be public. In addition, the Utah Code identifies several types of cases or hearings which can be closed. Closure of civil records is governed by statute as well as by Supreme Court and Judicial Council rules. The Government Records Access and Management Act (GRAMA), is the most commonly known regulation of court records, and applies to all governmental entities, not just the courts. Judicial records recognized by the Legislature as non-public were also listed in the memorandum, as well as other documents identified in the Code that may be or must be kept non-public. He also listed the records listed by the Council as classified in addition to those mentioned above. He continued by saying there is no general authority which could be found for a court to close what is otherwise classified as a public record. However, within definition of a private record, there is a generalized statement that if a record contains information -- the disclosure of which would constitute a clearly unwarranted invasion of privacy -- the court, by its own findings, can close the record. The process for closing a criminal hearing requires advance notice, and a hearing at which argument is made that the record to be closed should remain open. There is no specific process for closure of civil cases set forth either in common law or statutes.

Mr. Shea presented options developed by the Policy and Planning Committee, as follows: an "omnibus rule", which would establish the process by which closure decisions would be made; the rule would be published, taking case law and applying it uniformly to all types of cases. The second option would be to take an educational approach with judges, consolidating the research memorandum into a section in the benchbook, or conducting plenary or breakout sessions periodically at conferences, and including same in new judges' orientation. The Board of District Judges has also reviewed the memorandum. Both the Board and the Policy and Planning Committee recommend the education approach over a rules change.

Mr. Hunt and Mr. O'Brien were invited to present any additional information and/or concerns to the Council. They distributed a memorandum which list and articulate two main issues: 1) whether there is a constitutional right of access to civil matters; and 2) whether GRAMA tracks the constitutional right of access. They concluded their presentation by indicating their support for the adoption of a uniform rule; alternatively, they would support and be willing to assist in some type of educational outreach.

Mr. Shea commented on the memorandum from Mr. Hunt and Mr. O'Brien, stating that his intent was to point out that this issue remains as yet undecided by an authority controlling state law. He stated that on its face, GRAMA does apply to the judiciary. He said that special considerations for the court are that historically, hearings have been open to the public, as well as evidence presented and records of evidence therein. However, under GRAMA, financial records on file in a court location which are classified as something as "private" or "protected", should still be considered as private.

Motion

Following the presentations by both Tim Shea and Mr. Hunt and Mr. O'Brien, a motion was made to defer discussion and action on closing court hearings and records to the next Council meeting. The motion was seconded and carried, with one opposed.

Family Law Presentations

Sharon Hancey, First District Court Executive, presented to the Council a position statement on behalf of the court executives, clerks of court, and probation officers. She explained that a committee was formed from each of the aforementioned groups to discuss the family court issue and ultimately prepare a position statement. As a result of their discussions, the committee formulated a list of top ten considerations regarding case management of family law cases. The committee recommended targeting problems and identifying solutions for those problems. Among their recommendations: upgrading and streamlining electronic data entry between juvenile and district courts; improving electronic communications between district and juvenile courts, and facilitating provision of necessary resources for same; aggressive expansion of alternate dispute resolution to promote non-adversarial solutions to family problems where possible; development of pilot programs which would better serve families; expanded training for family case management services, and to provide incentives and rewards for innovative family case management strategies. The groups did not recommend a structural change.

Carol Verdoia, Assistant Attorney General and Chair of the Supreme Court's Advisory Committee on Rules of Juvenile Procedure, presented to the Council the committee's position on the family court proposals. The committee expressed concerns surrounding a structural change. Other concerns outlined in their statement are that insufficient attention would be given to ensuring that rules are adequately addressed, and that a structural change would likely have district court procedures being applied in former-juvenile cases, rather than applying the juvenile court model to all domestic cases. They recommended retaining juvenile rules for the benefit of children. She indicated that the committee is considering a proposed rule for expedited hearings in cases where a hearing is several months away but the children, for their protection, need to be removed from their parents in the interim. She indicated that, regardless of the direction the Council takes in the family law issue, the committee's primary recommendation is that all rules benefitting children should be retained, and sufficient resources should be given to that process.

Waine Riches, managing attorney of the Salt Lake City office of Utah Legal Services, Inc., presented to the Council, and addressed the problems related to the QuickCourt system. He informed the Council that he conducts a "clinic" for individuals to provide education on use of the system, as well as to offer any legal assistance as needed. He indicated that the problem encountered by pro se individuals utilizing this system is that they are not able to obtain orders for family law related issues (e.g., custody, child support, visitation). Low-income or indigent individuals have no other remedy for these problems if they are unable to retain an attorney for assistance. In addition to the "clinics" he holds, Mr. Riches has developed information packets for those who need legal assistance with family law issues. However, these information packets do not provide a means for resolution of all the problems which arise in domestic issues. Mr. Riches expressed his support for the concept of a family court.

John Bradley, Assistant Attorney General and section chief for northern Utah (which includes First and Second Districts), offered input on the family court proposal from the Weber County Bar membership, as well as attorneys in the First District. He distributed a summary of the feedback he has received from members of the Bar in his area. The summary outlined items in the areas of family and juvenile law that work well; identified problems; and offered recommendations for improvements in both systems.

Mr. Bradley said the issue of most concern to Bar members is that children do not seem to be the main focus as they should be in the current system. In a family court system, children and children's issues would receive more of the focus. Other problems identified in both areas are: time/delay problems; coordination of cases between district/juvenile courts; and record-keeping (public vs. private). Recommendation for the family law area are: creation of a family court department of district court; use of a "foreign order" system to coordinate cases; and sealing all private information, or implementing a "two-file" system. Recommendations for the juvenile system are: to leave it as is; limit domestic actions to those involving abuse/neglect; use of a "foreign order" system"; liberalize access to information, e.g., court's docket; and mediation. He stated that the Child Welfare Act has been a help to the system.

Following Mr. Bradley's presentations, and there being no further business, the meeting was adjourned.