Judicial Council Meeting Minutes

Guests
 

Hon. Thomas A. Zlaket, Chief Justice,  Arizona Supreme Court	Sharon Hancey, 1st District Court Executive
Hon. Ronald Nehring, Third Judicial District Court	Rick Davis, 2nd District Trial Court Executive
Steven Stewart, Executive Director,  Judicial Conduct Commission	Beani Martinez, 2nd District Juvenile  Court Executive
David Nuffer, Chair,  Judicial Conduct Commission	Bruce Thomas, 3rd District Juvenile  Court Executive
Jerry Howe, Office of Legislative Research  and General Counsel	Paul Sheffield, 4th District Trial  Court Executive
	John Day, 4th District Juvenile  Court Executive
	Jim Nelson, 5th District Court Executive
	Brent Bowcutt, 6th District Court Executive
	Tim Simmons, 7th District Court Executive
	Sherry Stettler, 8th District Court Executive

Welcome/Report of the Chairman

Chief Justice Howe opened the meeting by welcoming all those in attendance. A special welcome was extended to the Honorable Thomas A. Zlaket, Chief Justice of the Arizona Supreme Court. Chief Justice Zlaket was invited by both the Utah State Bar and the Utah Board of Appellate Court Judges to speak on the issues of public trust and confidence in the courts, and pro se litigation. He was also invited to join the Utah Judicial Council at its meeting to offer similar remarks on these issues.

Chief Justice Howe incorporated his report with the staff's legislative report. Chief Justice Zlaket then presented his remarks to the Council.

Pro Se Litigation: Chief Justice Thomas A. Zlaket

The Honorable Thomas A. Zlaket, Chief Justice of the Arizona Supreme Court, presented to the Council his remarks on the issue of pro se litigation. He co-chaired the Conference of Chief Justices' National Conference on Public Trust and Confidence in the Courts, which was held in 1999. The conference was the conclusion of an effort by the Conference of Chief Justices to sample the public's opinion of the courts and the judiciary. Included in this effort were polls which were conducted and citizens' summits held in various states, and two national polls -- one of which was conducted by the American Bar Association (ABA) -- wherein the public was asked for its opinion of the justice system.

Chief Justice Zlaket stated that the across-the-board results of these polls reflected a low level of public esteem, trust, and confidence in all three branches of government. He said the public perceives the justice system as being too slow, expensive, adversarial, complex, and not "user-friendly". He opined that the finding of most concern to him was the public's belief that the judiciary fails to deliver on its guarantee of equal justice. That further, the public sentiment is that the legal system favors the wealthy over the indigent, and majorities over minorities in dispensing justice. Based on these findings, he suggested that judges become involved in ongoing efforts to discuss public trust and confidence. Toward this end, he has encouraged and continues to encourage judges to become better acquainted with their respective communities, as a means to educate the public about judges and the work of the judiciary. He recommended that judges do the following: 1) work toward clarifying misperceptions the public has about the judiciary; and 2) listen to the criticisms voiced by the public, and respond by changing the manner in which the judiciary operates.

He added that technological advances have caused changes in the manner in which business is conducted, and that both the private and public sectors are responding to these changes. However, he observed that the justice system still views itself as ponderous and tradition-bound. He stated that because lawyers' services are becoming costlier, the judiciary must be proactive in accommodating the public in resolving legal matters it brings before the court. He concluded by saying that the judicial branch of government has nothing to offer except the promise of fair, equal justice and neutrality. That further, without public trust and confidence, along with a willingness to change, the judiciary risks becoming irrelevant to the public and to business.

Chief Justice Zlaket then entertained questions from the Council. He was asked whether Arizona is facilitating or encouraging pro se litigation. By way of explanation, he offered statistical information regarding the number of self-represented individuals in the Arizona court system, as follows: 60% of all domestic relations cases alone in that state are pro se; 20% have an attorney representing one party; and the remaining 20% have attorney representation of both parties. Arizona residents now have greater access to information regarding court procedures, initially from mechanisms such as the "QuickCourt" system, which has been replaced by Internet access and use. He indicated that self-service centers are now in place within court sites in Arizona. These centers have been designed for court users to receive assistance from clerk staff in preparing documents for filing with the court, without receiving legal advice. Chief Justice Zlaket stated that over 100,000 persons used these centers within the first 14 months of their existence, and that the public's use of these centers has remained constant. He concluded that, based upon the foregoing information, the issue of facilitation or encouragement of pro se litigation is irrelevant. He is of the view that judges are the caretakers of the justice system, and that the judiciary bears the responsibility for maintaining public trust and confidence in that system.

Chief Justice Zlaket was also asked how the issue of criminal law relates to pro se litigation. He stated that it is more difficult to address in the area of criminal law, since other branches of government become involved in criminal cases. An additional factor is the ongoing perception that the wealthy have greater chances for a favorable decision over the indigent. While he said that this issue is more complex, it cannot be ignored.

Chief Justice Zlaket was thanked for his presentation, and Chief Justice Howe emphasized the importance of the judiciary becoming better acquainted with the public, for purposes of educating the community to judges and their work.

Administrator's Report/Legislative Overview

Dan Becker consolidated his report with the summary of the legislative session. The Council received a summary which provided a comparison of those items advanced by the courts with those items passed by the Legislature. Mr. Becker stated that a total of $5.2 million in new funding was appropriated to the courts by the Legislature; this includes the $2 million which was appropriated for the Cache County courthouse, and excludes increases related to salaries. Overall, the courts' budget increased by 6.25%.

Mr. Becker specified the following items as significant developments for the courts which resulted from legislative action:

- Emphasis on family law and mediation: $150,000 was appropriated for the child welfare mediation program

- Modernizing the courts through data processing: $400,000 was appropriated which nearly fully restores that budget

- Self-represented litigants: SB147 contained a fiscal note for online court assistance, which allows for access to court forms via the Internet. A $20 fee will be assessed at the time of filing an electronically generated document.  This fee will be collected and will be used to maintain the program.

- Therapeutic courts, such as drug courts: The drug courts will be funded through the tobacco settlement funds in the amount of $2 million, for both district and juvenile drug courts, and a pilot program for a drug board, which will be operated by the Board of Pardons and Parole. This money will be available for use on or about July 1^st. The courts will use approximately 13% of these funds for "traditional" court operations, e.g., judicial and clerical support. This is in compliance with the Council's direction to staff with respect to drug courts. The money which relates to testing, treatment, and case management will be directed to and administered by the Department of Human Services, in conjunction with the courts.

- Accountability: funding was provided for a Justice Court auditor position.

- Court operations: $1.2 million was appropriated to increase the leases and contracts' budget. This also included money for security contracts and video equipment, and will greatly assist the courts in addressing areas which have been problematic.

- Juror/witness/interpreter fees: $500,000 was appropriated. This means that effective for FY2001, the budget will be sufficiently funding on an ongoing basis. However, a $1.2 million supplemental will be required to compensate for deficits in this budget since 1998.

- Salary selectives: $250,000 was appropriated. Mr. Becker noted that this is the first time in which the judiciary has been included with the executive branch in a funding request for a market analysis. The appropriation will be used for a probation officer market analysis.

- Career ladder adjustment: $185,000 was appropriated for advancements. The appropriation for this item and the salary selectives will substantially relieve the pressure of utilizing money which was previously used from turnover savings.

- Cost of living adjustment (COLA): A four-percent adjustment was made for all employees, including judges, regardless of salary range. The adjustment for staff is effective June 24^th; it is effective for judges on July 1^st. This percentage was recommended by both the Citizens' Committee on Judicial Salaries, and the Legislative Commission on Judicial and Executive Salaries.

- Other fiscal notes were appropriated, in the total amount of $487,200. A portion of this money may be used to fund the seven deputy clerk positions which the Council authorized last year on a time-limited basis.

Gordon Bissegger reviewed for the Council the results of the legislative session with respect to facilities. The Council also received a summary of these results. He began by noting the Council's priority to advance a request for full funding of the Cache County court location, in the amount of $14.2 million. The proposed location for the courthouse was on Main Street, between 200 North and 300 North, in downtown Logan. This would have involved a trade with Cache County for property designated for a youth corrections facility, and demolition of a county-owned historic courthouse located on Main and 200 North. However, opposition to the demolition of the historic courthouse (which is on the National Register of Historic Places) resulted in the passage of the following intent language:

"It is the intent of the Legislature that the Courts work with the Division of Facilities Construction and Management to purchase appropriate land in Cache County, not to exceed $1.4 million and that DFCM hire a firm to complete the design of the Court House."

Mr. Bissegger reported on the second priority, which concerns the remaining funding for the Summit County Courthouse. Partial funding for this site was granted last year, and a request was advanced -- and granted -- this year for $1.2 million.

Richard Schwermer and Mark Jones then presented to the Council a summary of final legislation passed during this legislative session. Prior to the full review, Mr. Schwermer reviewed the intent language in SB1, item 37. This language refers to fiscal note funding appropriated to the courts with respect to additional clerk FTEs, and provides that for every $50,000 in accumulated fiscal note driven costs to the courts in any given year, the courts should be authorized an additional clerk FTE.

The following bills were passed:

- HB 100 Child Support for Children in State Custody: Will require the juvenile court to provide explicit direction to parents about their obligation to pay child support while their children are in state custody.

- HB102 Parental Rights Amendments: Requires the juvenile court to provide notice to the Foster Care Citizen Review Board of all orders entered which pertain to children in foster care.

- HB103 Amendments to Child Welfare: This was combined with SB63 into one bill which prohibits co-habitating couples from adopting a child.

- HB204 Judicial Information to Voters: This provides that the Voter Information Pamphlet will contain all public reprimands against judges during the current and previous term of service. This legislation will become effective this fall.

- HB208 Enhanced Penalties for High Blood Alcohol Content in Drivers

- HB209 Driving Under the Influence Amendments

- HB242 Child Visitation Guidelines

- HB 259 Pilot Program for Differentiated Responses to Child Abuse and Neglect Reports:
The courts took no formal position on this legislation

- HB281 Drug Courts and Drug Board Pilot Project: This bill directs the administration of the money which was appropriated for drug courts.

- HB285 Judicial Conduct Commission Amendments and Supreme Court Oversight of Judges

- HB329 Child Welfare Mediation

- HB330 Judicial Amendments

-HBHJR4 Resolution Approving Removal of District Court from Park City.

- SB39 Expedited Visitation Enforcement Program

- SB147 Online Court Assistance

- SB151 Justice Court Accountability.

- SB221 Sheriff's Classification of Jail Inmates and Jail Facilities

- SB240 Decriminalization of Traffic Offenses: Mr. Schwermer clarified that West Valley City and Salt Lake City will be required to pay a total of $900,000 this fiscal year, and over $1 million in the next fiscal year to the General Fund in order to meet the fiscal note provisions. They will also be required to follow the Uniform Fine and Bail Schedule.

Mr. Schwermer was asked about SB251, Dramshop Modifications. He explained that this bill increased the limits for payment. Dan Becker addressed the issue of the 5% employee contribution to health benefits. He clarified that all employees, including judges, will now be required to make a 5% contribution toward health insurance premiums per pay period. The payments will range from $4.25 - $14.50 per pay period, depending upon the type of coverage employees have selected. These are pre-tax amounts.

Staff was asked whether any other avenues were being pursued with regard to obtaining additional funds for the Guardian ad Litem program. Mr. Becker reiterated that one option which is being explored is for IV-E federal funds.

It was also announced that Lane Beattie, President of the Utah State Senate, has announced his retirement.

Subcommittee Reports

Judge Russell Bench presented to the Council the report of the Management Committee. He presented this report on behalf of Judge Anne M. Stirba, who was excused from the meeting due to illness. Judge Bench reported on the following items:

- The Management Committee received a report on limited audits conducted in the First and Third Districts. The audits concluded that the incident occurred long before improved control procedures were implemented in the Third District, Murray court. Because these controls were in place in the First District, the problem was promptly identified and resolved.

- The Committee was updated on the Interactive Voice Response (IVR) system. Last year, 99,000 calls were logged into the system in Salt Lake. The system has been so successful in Salt Lake that it has recently been implemented in the Ogden court in both English and Spanish, and a similar implementation is scheduled for the Provo court. An option for court users to make any necessary payments by phone will also be implemented.

- The Committee authorized staff to proceed with a grant request for pro se study. A request is being made for a grant from the State Justice Institute (SJI) to gain a better understanding of pro se litigants, the number of said litigants in the state, the types of cases involving self-representation, etc. This is the first step toward the courts' addressing the issue of pro se litigation. The Committee agreed to place this on the Council's consent calendar.

The Liaison Committee has no new report with the close of the legislative session. No new reports are expected until later in the year.

Scott Daniels presented to the Council his report from the Bar Commission. He reported that the midyear meeting of the Utah State Bar will open on Friday, March 10^th. Chief Justice Thomas Zlaket will be the keynote speaker, and he will speak to the Bar membership on the topic of public trust and confidence in the legal system.

The Bar Commission has not met since the Council's last meeting; therefore, Mr. Daniels indicated there was nothing new to report. He emphasized the Bar's appreciation of the Third District meeting with the Bar's Courts and Judges Committee. The Committee was pleased with the results of the discussions which were held. The Bar will continue to explore methods for offering input and feedback anonymously to judges regarding court procedures. Mr. Daniels stated that attorneys are often reluctant to make comments or offer constructive criticism which may be traced back to them. Concern was expressed that judges or clerk staff may take offense at any criticisms which are expressed regarding the courts. The Bar is currently working to advance a proposed procedure for submitting suggestions for making the courts more user-friendly.

Mr. Daniels concluded with a reminder that the annual meeting of the Utah State Bar will be held in San Diego, California, in July. While the Bar is aware that no judicial meetings will be held in conjunction with this meeting, Mr. Daniels indicated that the Bar is hopeful that judges will make plans to attend the meeting.

Judicial Performance Evaluation Issues

Dan Becker presented this item to the Council for discussion. This presentation was made on behalf of Tim Shea, who could not attend the Council's meeting. Prior to the meeting, Mr. Shea distributed to the Council a memorandum pursuant to the Management Committee's direction. Mr. Shea summarized as many issues as could be identified, which may present themselves either now or in the future regarding judicial performance evaluation and certification. He prepared a two-part summary with the following issues mentioned: 1) the role of the Council; and 2) procedural issues. The first item would involve a re-examination of the fundamental principles of certification. The second item would involve technical changes which are nonetheless supplementary to the Council's role in certifying judges. Mr. Shea outlined 17 items for the Council's consideration. The Council was asked whether it was in agreement with the issues outlined, or whether it recommended any changes. Next, the Council was asked what process should be put into place to examine the issues.

It was stated that the issues are so substantive that they may not be able to be discussed by the Council as a whole. Alternatively, an entire meeting may be devoted to this discussion. There was extensive discussion of the role of the Council as it relates to certification, as well as the new legislation passed during the legislative session.

A recommendation was made to add an item for the Council's consideration, as follows: the ethical considerations regarding the propriety for a Council member to recuse him or herself when said judge either has additional information about a judge eligible for recertification, has issues relating to supervisory authority, or has affirmative duties in connection with obligations in their district. More detailed discussion followed, and Jerry Howe, of the Office of Legislative Research and General Counsel, was invited to present remarks to the Council regarding the Legislature's passing of HB285. He clarified the Legislature's desire for the Council to examine the re-certification process and make any modifications it deems necessary.

Additional options were discussed at length, at which time the following motion was made:

Motion

A motion was made for the Council to refer this issue to the Policy and Planning Committee to collect information from those sources it determines as helpful, and to advance to the Council, within no more than three months, a recommendation regarding the role of the Council in the certification process. The motion was seconded and carried unanimously.

Update: Board of District Judges

Judge Ronald Nehring, Chair of the Board of District Judges, provided an update from the District Board for the Council's information. He began by noting that he reviewed the annual report of the Judicial Conduct Commission. He indicated that there are many opportunities during the course of court operations for mistakes to be made by judges as a result of their contact with the public. He recalled that the annual report reflected that, in the past year, there were only five or six incidents wherein a judge's contact with the public resulted in behavior which merited some type of action by the Conduct Commission. He pointed out that egregious conduct by a judge occurs very rarely. He stated that the Board of District Judges has two objectives: 1) to strive to improve the quality of public judicial service; 2) to try to improve the quality of its professional and personal lives. That further, the Board is pursuing a number of agenda items which relate to the aforementioned objectives. Among them, refinement of a weighted caseload system for district judges as a means for allocation of additional resources; and the need for law clerks to assist district judges.

Judge Nehring stated that, with respect to the second agenda item, the need for law clerks in the district court is becoming more acute, due to several related issues. One of these issues deals with pro se litigants. He expressed the view that self-representation complicates cases; that further, these cases demand a greater investment of time which might otherwise be devoted to research and writing in other cases. The districts are struggling with the issue of pro se litigation. Another issue relates to the increased complexity of civil cases. Businesses operate with increased rapidity, and the types of problems which are seen in the courts are more complex. The Board is of the view that these two factors combined result in an increased need for law clerks. The Board is preparing to address the recommendations of the Racial and Ethnic Fairness Task Force. He said that there is a consensus on the Board that district judges would benefit from sensitivity training on issues of diversity.

Case management is another priority for the Board. Thus far, the case management projects which have been developed have been tailored to the specific needs of each district. Following his presentation, Judge Nehring fielded questions from the Council. With respect to the pro se litigation issue, Judge Lynn Davis recommended raising the issue with Chief Justice Zlaket of whether there is an anticipation of increased judicial resources because of the increased number of pro se litigants. Judge Nehring agreed that the question should be raised, and re-emphasized that small claims cases, combined with pro se litigation, creates numerous challenges for the district courts.

Judge Nehring was asked whether the Board of District Judges has developed a proposal to request law clerks as part of its budget priorities for the coming fiscal year. He responded by stating that seeking IV-D and IV-E funds is one possible option, but stated that no determination has been made with respect to law clerks as a priority for the district. Chief Justice Howe stated that the committee charged with examining small claims court rules and procedures has also been asked to make recommendations for any statutory changes, which will likely benefit the districts.

Approval of Minutes

The Council reviewed the minutes of the Council's February meeting, and a motion was then made.

Motion

A motion was made to approve the minutes of the February meeting. The motion was seconded and carried unanimously.

TCE Update

Sharon Hancey, First District Court Executive, presented to the Council an update from the trial court executives. She reported on the projects which the executives have implemented in their respective districts. The customer service project is a major, ongoing effort which the districts have supported and implemented. Over a year ago, a committee was formed to study the issue and advance a proposal to the Council for an initiative to enhance and improve customer service in the courts, which the Council subsequently approved. Some districts have adopted internal customer service policies in order to improve working relations. The First District has developed a quarterly newsletter which informs the courts statewide about developments in the district. The newsletter is used, in part, to acknowledge the work of both staff and judges, and has been effective in fostering improved morale within the district. The Seventh District plans to develop a similar newsletter. Customer service surveys have been circulated in some of the districts, to both members of the Bar and the public.

Another area on which the executives have focused is case disposition. Statewide, the districts have disposed of nearly 50,000 cases. The districts have utilized the state debt collection services and have generated revenue for the courts through disposition of cases.

Ms. Hancey continued by reporting that both she and John Day, the Fourth District Juvenile court executive, were invited by Dan Becker to participate in the courts' budget planning process. Mr. Day informed the Council that both he and Ms. Hancey found this experience valuable, in that a greater appreciation and understanding was gained of process by which funds are allocated. These executives look forward to participating in the process once again this year, and hope to make additional contributions based on the experience they have gained.

The Council was informed that the re-engineering of the juvenile courts' information system is progressing well. Ray Wahl stated that Utah is one of only a few states with a statewide information system. The reason for the re-engineering is twofold: 1) the system operates from a mainframe which is costly; and 2) it does not include all the data elements needed to evaluate outcome measures for the juvenile court. The court applied for and was awarded a federal grant known as the Juvenile Accountability Incentive Block Grant (JAIBG); this has been the major source of funding for the re-engineering program, and some of the information from the new system will be available in about two years.

The final item on which Ms. Hancey reported is the case management project. This is the largest effort by the executives, and resulted from a case management workshop which was held for both the district and juvenile courts last fall. Clerk staff and judges participated in this workshop, and all participants felt the workshop was valuable in terms of re-examining how the courts manage their calendars. Based on the information disseminated at the workshops, the executives have developed case management plans for their districts. Some districts have already implemented their plans, and others are still being finalized. Ms. Hancey thanked the judges for their support and participation in this effort, as well as their commitment to ensuring the success of these plans. The executives anticipate that this will also be an ongoing effort, and all staff are participating in these plans. She concluded by thanking the Council for the opportunity to present an update for its information.

Dan Becker commented that the executives are committed to the successful implementation and follow-through of all the initiatives authorized by the Council.

Report from the Judicial Conduct Commission

Steven Stewart, Executive Director of the Judicial Conduct Commission, presented to the Council the quarterly report from the Judicial Conduct Commission. The Council received a summary of a few cases which were dismissed following a preliminary review, which Mr. Stewart subsequently reviewed with the Council. He began his report by informing the Council that the number of complaints against judges has decreased from an average of 10 or 11 cases per month last year, to between six and seven per month this year. This decrease could not be attributed to any specific factors.

The case review included three cases involving traffic matters, and one divorce case. Mr. Stewart reviewed the Canons which were applicable in each case. He was asked to explain the manner in which investigators become aware of a pattern of misconduct by judges. He stated that such information may be gathered during the course of interviews conducted by investigators. He added that the Commission receives numerous complaints against judges alleging the failure of a judge to inform litigants of their rights, and that the Commission follows provisions which state that the judicial conduct process cannot be used to punish judges for committing such an error. However, he emphasized that no judges in this state have been formally charged for failing to advise a litigant of his or her fundamental rights. Based on the dismissal of the final case he reviewed, Mr. Stewart informed the Council that the Commission has consistently informed complainants and potential complainants that they cannot disqualify a judge merely by informing a judge that a complaint has been filed with the Commission. A formal process in adherence to Rule 63B must be followed.

Following his report, Mr. Stewart briefly reviewed with the Council HB285 as it relates to the Conduct Commission. The following points were mentioned:

- The term "complaint" is defined in the legislation to include information in any form, from any source which alleges, or from which a reasonable inference can be drawn, that a judge has committed misconduct. This definition is consistent with the language contained in the administrative rule, and is now a part of the statute. This means that the Commission may receive a complaint against a judge in any form, and that these complaints are no longer limited to a written complaint filed by a third person.

- Disclosure of information to the local prosecutor is required by the Commission on which a criminal violation - felony or misdemeanor - might be based. If the local prosecutor has a conflict, referral of this information must be made to another prosecutor.

- The Chief Justice of the Utah Supreme Court is authorized to place a judge charged with a Class A misdemeanor or felony on paid administrative leave, pending the outcome of the proceeding.

- The Commission is restricted from doing anything except reprimands, censures, suspensions, removals, or involuntary retirement.

- All informal reprimands must now be given to the complainant, the Judicial Council, and the Utah Supreme Court.

No further items were discussed by the Council, nor did the Council convene in Executive Session. The following motion was then made:

Motion

A motion was made to adjourn the meeting. The motion was seconded, carried unanimously, and the meeting was adjourned immediately thereafter.