2017 STATE OF THE JUDICIARY Chief Justice Matthew B. Durrant
I always count it a great privilege to stand before this body. Seeing you reminds me it is no accident that Utah is widely regarded as the best-managed state in the country. And it is an opportunity to thank you for the sacrifice of time and money you make to serve the citizens of our great state.
I’m here with my colleagues, Associate Chief Justice Thomas Lee, Justice Christine Durham, Justice Deno Himonas, and Justice John Pearce. It is my good fortune to serve with four individuals whom I respect deeply not only as jurists, but as human beings. And we are pleased to be joined by members of our judicial council, who are sitting in the gallery along with Elaine Becker, the lovely wife of Dan Becker, our state court administrator. Dan is retiring this May after 22 years of service. That means he has assisted in preparing 21 state of the judiciary addresses, and this is his last.
This observation caused us both to become a bit nostalgic as we discussed my comments to you today, and he dug up a copy of a state of the judiciary address that Chief Justice Michael Zimmerman gave early in Dan’s tenure. The year was 1997, twenty years ago. That speech was memorable in that the chief justice spoke to you wearing only a business suit, not his judicial robe. He did it to illustrate that as chief justice he served in two distinct roles, one a judicial role as the chief justice of the Supreme Court, and the other an administrative role as chair of the judicial council, the role he assumed that day. I considered doing the same and speaking before you without my robe, but thought better of it when I realized that I’m still wearing the same cheap suit I was wearing twenty years ago. It’s a suit that looks much better when covered by a robe. Also, I’m told that the robe flatters my figure.
Dan’s retirement after over two decades of service, has caused me to reflect on just how much things have changed in that time—in the legislature, in our culture, and in our courts.
As for the legislature, two decades ago, in 1997, only seven of you were serving in this body – Senators Hillyard and Howard Stephenson, and then Representatives Arent, Davis, Dayton, Harper and Knudson. That was so long ago that even Orrin Hatch had only just begun his service as a United States Senator. No, check that . . . he was just beginning his third decade in the Senate. And I guess there goes my shot at that open U.S. Supreme Court appointment.
As for our culture, it was about twenty years ago that Michael Jordan pushed off to vault the Chicago Bulls to an NBA championship over the Jazz. I know there are some who argue that he did not push off, but after much consideration I am now prepared to rule. He pushed off. And if you think I don’t have the power to decide that, you haven’t read the Utah Constitution.
And there have been so many technological changes. For instance, today you can meet your future wife or husband through a computer. Twenty years, ago you had to meet him or her at a church dance or in a bar. In my case, it was a bar—the salad bar at the BYU cafeteria.
Our courts have changed just as much as our broader culture. In 1997, we were just beginning to undertake non-traditional responsibilities. We were asked to do work previously done by social service organizations or not done at all. Clerks were charged with assisting parties in filling out domestic violence protective orders, the courts became responsible for the Office of the Guardian ad Litem, and judges were starting to look at a person’s underlying behavioral health problem, not just the charge that brought them into court. Our first drug courts began in 1996. At that time we were just initiating alternative dispute resolution, but only in a few civil cases.
And we were piloting a new information case management system, called CORIS. We were also piloting an education program for divorcing parents. We took pride in the services we provided unrepresented parties through our Quick Court Kiosks. They met a real need, even though back then most cases had attorneys on both sides. And twenty years ago, the juvenile justice taskforce was working on juvenile justice reform in response to a surge in gang violence.
Now fast forward twenty years. The dispassionate magistrate model of judging, in which, as described by Chief Justice John Roberts, judges call balls and strikes, has in part been replaced by a model where our trial court judges, in addition to calling balls and strikes, also in some case—such as those in our drug, mental health, and veterans courts—take on the role of coaches, encouraging success and supervising the delivery of supportive services.
The management of our court system has moved to one driven by data-based decisions, accountability, and transparency, with our performance posted on-line for all to see. We have gone from piloting CORIS to becoming a completely electronic system in our justice, juvenile, and district courts statewide, the first state in the country to achieve this.
Twenty years ago, both the public and attorneys were required to drive to the courthouse to do their work, which, particularly in rural areas, was a significant burden. Now they can simply file and access court records and documents remotely.
Those drug courts that were a pilot project in one district and in one juvenile court back in 1997 are now in every judicial district for both adults and juveniles. And the success of drug courts has led to mental health courts and veterans courts.
Divorce education is now mandatory in all divorce cases where children are involved, and we also offer a divorce orientation program, and a program that focuses on children in divorce.
The number of self-represented parties has grown exponentially in the last twenty years. Now, cases with attorneys on both sides are the exception. In the majority of cases we see parties without lawyers on at least one side, and often both parties are unrepresented. Back then, mediation was limited to civil cases. Now we also routinely use mediation in child welfare, domestic, landlord-tenant, victim-offender, truancy, and debt collection cases.
Those kiosks that we used to have in our courthouses have been replaced by an internet-based service, our Online Court Assistance Program. And we have dramatically increased the services available for self-represented parties, including a court-based self- help center that assisted over 20,000 people last year.
Twenty years ago, justice courts worked largely in isolation. Now our centralized administrative office provides them with training, audit, legal, and technology services. We have made all of our courts more transparent to the public through video coverage of court proceedings. And our juvenile courts have moved from hearings that were entirely closed to the public to proceedings that are presumed open to the media and the public. During these twenty years, we have moved from using court reporters to an all-digital court recording environment, which has saved considerable cost and sped the process of generating transcripts.
Further, with your support, twenty-two new courthouses have opened and many others have been remodeled, ensuring that the work of justice can be done in surroundings reflecting its importance.
One overarching change that we have made in our court system over the past twenty years is that rather than simply being guided by tradition (that is, by the notion that we ought to simply keep doing what we have always done), we have tried to see our court system and our responsibility as judges in a different way. Instead of being guided by tradition, anecdote, or “gut instinct,” we are guided by research, data, and evidence about what works. This new evidence-based way of approaching our jobs as judges and of discharging our obligations as a court system permeates every aspect of what we do. We have earnestly sought to make all of our services and our administrative and judicial practices, including sentencing, evidence based.
The Justice Reinvestment Initiative is a reflection of this evidence-based approach. It is founded upon the consensus research that tells us the best way to rehabilitate most offenders, and thereby better protect society, is to substitute treatment for incarceration. In our state’s current efforts to reform our juvenile justice system, and as we reevaluate our pre-trial release practices, once more we look to the data, to the research, to what we know works.
We also know that sometimes what works for the public is easier and more timely access to our judicial system. Two ways in which we have addressed access to the courts are the online court assistance program and self-help center that I’ve already mentioned, but we are also developing two other initiatives intended to increase the availability of legal assistance and access to our courts. In three areas where the lack of affordable legal assistance is especially acute—domestic cases, landlord-tenant disputes, and eviction cases—we are developing a very promising market-based solution, effectively creating a new profession—Licensed Paralegal Practitioners.
These LPP’s will be non-lawyers authorized to offer certain legal services that to this point only a lawyer could provide. They will be required to be specially trained and certified, which will involve an extensive curriculum of course work, and they will also be required to pass a test in each of the practice areas I mentioned. These individuals will provide, on a more limited basis than a lawyer, legal services at a substantially reduced cost. So more people will be able to afford and receive the legal assistance they need.
We are also very excited about the progress we have made in another innovative initiative, Online Dispute Resolution. Here again, we are a national leader. When operational later this year, this new process will allow citizens to evaluate, negotiate, and, if necessary, litigate their small claims case completely on the internet. They will be able to have settlement discussions, exchange documents, and in those cases where it is required, enlist the services of a mediator or a judge. All on-line, and on their schedule, not the court’s.
The courts have taken the initiative on these issues, but let me now address a few topics that will be before the legislature this session. As I mentioned earlier, in 1997 we were focused on juvenile justice reform. Well, the state is again focused on that issue. That earlier reform movement was driven by gang violence. Now the effort is driven by data, data that informs us as to how we can best address the problem of juvenile delinquency. A study committee, through CCJJ, is advancing a number of reforms, and we support the concepts underlying these reforms. We will have suggestions on how this proposal can be improved, but my chief concern in this respect is funding. And I would put it this way, if the juvenile justice reform proposal cannot be adequately funded, and we sincerely hope that is possible, I think the better course would be to defer it to next year so that the reforms can be matched to the resources.
This is a lesson I think that we have all learned from the Justice Reinvestment Initiative. JRI was and remains the right policy decision, an evidence-based policy decision, and I commend this body for its wisdom in passing that initiative. But it was predicated on the idea that in appropriate cases, the far better response to criminal behavior is treatment rather than incarceration, the idea that in the long run our society is safer and the cost savings are significant if we can somehow shut the revolving door that leads those addicted to drugs to end up back in jail or prison time and time again.
But the treatment side of JRI has yet to be adequately addressed. I encourage you to find a way to complete the entire JRI package and allow this significant reform to cross the finish line. The successes that all of us are hoping for depend on this last critical piece of the puzzle being in place.
One final request, this one for our budget. I urge you to create a new district court judgeship in our fifth judicial district—the rapidly growing southwest part of our state. For several years our workload has been such in that district that it is essential to add an additional judge. And for the first time in decades, our projections show this as the last hotspot that can’t be addressed in other ways. We believe this will be the last new judge we request for a number of years to come.
Now, finally, just a word about our retiring court administrator, Dan Becker. In Utah we are fortunate to have a court system that has become a national exemplar. During my tenure as chief I have seized upon every opportunity to brag about our judges and our court system. I often make the case that we are the best judiciary in the country. I did this recently at our annual judicial conference, which was attended by the President of the National Center for State Courts, the sister organization to your National Conference of State Legislatures.
As I spoke, I wondered if, in her eyes, I was overstating my case. And in fact when she stood up, my fear seemed to be realized. She began by saying, “Chief Justice Durrant has it wrong.” But then she went on to say that Utah’s judiciary is not just regarded as the best in the nation, but as a model internationally. She added that when people ask her which judicial system is the best organized, most efficient, and best managed among all the states, the answer is easy—it’s Utah. She said that who might be second or third is more difficult to say, but never who is the best.
Now, one of the reasons for this is that we have extraordinarily talented and qualified judges, largely because of the foresight and wisdom of this body over three decades ago. It was then that you adopted a process for the selection of judges that is focused on merit, a process that yields the best and brightest from among the legal profession to serve as our judges. And for that I thank you.
As I mentioned, many things have changed in the last 20 years—in the legislature, in our culture, and in our courts. But one constant for the judiciary, and another significant reason for our remarkable national reputation, is that during those years we have had as our court administrator a man who is a true visionary. A man who has earnestly worked each day of the last 22 years to effect the changes in Utah’s courts that I have described, and many more. And he has done all this so that the judicial branch of our government could better fulfill its constitutional role and better serve the citizens of Utah. We all owe an enormous debt of gratitude to Dan Becker for his dedicated service. In conclusion, I wish you a productive session, and I hope you will join me in thanking Dan for his extraordinary contribution.
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