Code of Judicial Administration

With respect to the reintroduction of UCJA 4-902, “Limited scope investigation of domestic issues”, I think that the most important paragraph is shown below:
“(2) The purpose of the investigation is to report to the court observations about the issues referred. The report shall not contain the investigator’s recommendations, nor may the investigator testify about recommendations.”
Paragraph 2 states that the Judge retains the authority to draw conclusions of law. In most 4-903 reports that I have read, the evaluator goes through the 4-903(5)(E) elements and informs the judge how the evidence favors one party or the other for each element. Finally, the evaluator then provides a final interpretation of all the elements.
In effect, under Rule 4-903, the Court shares its fact finding and conclusion drawing authority with the evaluator. A challenge to an evaluator is taken up as a challenge not only to the evaluator’s observed facts, but also to the evaluator’s expert ability to draw legal conclusions. Once the Court appoints the evaluator as a Rule 706 expert, the Court has extended fact finding duties to that expert.
Paragraph 2 specifically reigns in the 706 expert and states, “You may not draw conclusions. Legal conclusions are to be drawn by the trier of fact.”
One must wonder why 4-902 would preclude a 706 expert from drawing legal conclusions while 4-903 does not. One must wonder why any “General” appointment should be made under Rule 4-903 or whether all appointments should be limited according to Rule 4-902.
My conclusion is that paragraph 2 should be added to Rule 4-903 as well and that the new Rule 4-902 should be used for all custody evaluations until paragraph 2 is added to Rule 4-903.

In my divorce case, had there been cameras in the court, the Commissioner would have had to apply the law, and this would have resulted in 2 years less court battles and saved the family over a hundred thousand dollars.
The Commissioner’s need oversight from the outside so that they do not rule on their personal whims or views. They need to be accountable as do judges.
I support the efforts of Erik Johnson and believe that Commissioners and Judges who oppose it, do so out of fear for making faulty rulings, yet they hide behind the catch phrases of “privacy” all the while its really about their competency and application of law that could withstand scrutiny.
Mark

If justice is truly blind, audio not video should be allowed. Video would be/could be disruptive. Video could also discourage witnesses and victims from testifying. Sex crime victims would have endure another gauntlet. Now that video is available worldwide, the victim could have to endure worldwide comments. The worst case scenario would be a show trial like the O.J. trial. The news should depend on issues and not on the appearance of a wronged or guilty person.
I urge you to close Utah courtrooms to video. To not do so will deter testimony of crime victims and could provide a way to target witnesses. Public safety is obviously impacted and demands that video cameras be banned from courtrooms. Audio can provide the issues and increase the public’s staying on the issues instead of defocusing and devolving into a discussion of a person/victim/witness/defendant appearance.
George Chapman slc

Since 1970, the Reporters Committee for Freedom of the Press has provided free legal advice, resources, support and advocacy to protect the First Amendment and Freedom of Information rights of journalists. We applaud the Utah Judicial Council for allowing cameras in the state’s courts, but we disagree with the proposal to remove from family court cases the presumptive right to electronic media coverage.
The Supreme Court has repeatedly emphasized that our nation’s courtrooms are presumptively open. In Richmond Newspapers, Inc. v. Virginia, the Court explained, “[T]hroughout its evolution, the trial has been open to all who care to observe.” 448 U.S. 555 (1980). We believe that camera coverage is not a special or “bonus” type of access to courtrooms. Instead, it is the modern-day equivalent of the Richmond Newspapers pronouncement that courtrooms are open.
In Richmond Newspapers and its progeny, the Supreme Court has enumerated many benefits of court openness: it increases the public’s trust in the judicial system; it helps ensure that the judiciary functions fairly; and it strengthens democracy by giving voters a better understanding of their government. Electronic media coverage provides additional benefits: it ensures that viewers are getting the most accurate rendering of what occurs in the courtroom, and it provides access and opportunity for education to people who cannot attend a hearing in person. Recognizing these important interests, all 50 states allow cameras in their courts in some form.
As electronic media coverage is simply access for the modern age, the same policies that govern whether people can attend a hearing in person should govern whether cameras are allowed. As the general public can attend family court hearings in Utah, they should be able to record these proceedings as well. Though family court cases sometimes present heightened privacy interests, the presumption of access should not disappear. Instead privacy concerns should be just one factor of many that the court considers when deciding whether to grant public access.
Three other aspects of the proposed changes concern us.
First, we disagree with changing the definition of “news reporter” from “any person who gathers, records, photographs, reports or publishes information for the primary purpose of disseminating news and information to the public” to a “publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public.”
In today’s media climate, so-called “non-traditional” journalists are common. Often they are informing the public in new and innovative ways or providing in-depth information in subjects where they have expertise. These journalists fill an important role in this economic climate, as many so-called “mainstream” outlets do not have the financial resources to comprehensively cover the courts or other institutions.
We worry that judges could use the proposed new language to exclude “non-traditional journalists” or people whose work they disagree with. By placing false boundaries on the definition of reporter, the court is limiting the opportunity for innovative voices to arise, and – as the Framers and Supreme Court have found essential for democracy – to educate the public. We consider anyone whose purpose is to disseminate information to the public – no matter if he or she is affiliated with a traditional news organization – to be a journalist.
Second, we are concerned that the proposal defines news reporter as someone who disseminates “news to the public” rather than “news and information to the public.” It is clear to us that any public court hearing is news. However, we worry that the court could somehow use this wording to exclude voices with which it does not agree, or to play the role of editor and decide what voices or types of publication constitute news.
Along these lines, we are concerned about the proposed clause (2)(B)(x), which lets judges consider the following factor in determining whether to allow cameras: “whether the predominant purpose of the electronic media coverage request is something other than journalism or dissemination of news to the public.” Again, this places the government – instead of the journalist – in the position of determining what is or is not news. Such a dynamic is incompatible with the First Amendment.
We appreciate Utah’s efforts to introduce electronic media coverage into its courts, and we thank you for considering our comments on this matter.

I oppose any rule change that would limit camera access in Utah’s courtrooms. Transparency is crucial to a healthy judicial system and cameras allow for an extra level of insight beyond what a written summary or article provides. Please consider the entire public instead of ruling on behalf of select individuals or cases.

I hope the proposed changes to Rule 4-401.01 will be rejected as an over-reaction that too severely hampers legitimate public interest in what happens inside family courts in Utah.
Utah courts have a proud history of working with journalists and the public to allow the least-restrictive access so that the judicial system is transparent in its actions and the public can be confident in its operation.
Creating a negative presumption that openness will not be allowed does not serve anyone well.
Please continue to limit access when there are legitimate reasons to do so, but keep the presumption of openness.

I am writing in opposition to the proposed change to Rule 4-401.01.
Utah took a great leap forward with respect to the judiciary, by allowing television cameras and electronic devices into courtrooms to provide greater (and more accurate) coverage of proceedings. By the Utah Administrative Office of the Court’s own perception surveys, 80% of those who get news of the judiciary, get it from the news media. Allowing the public at large to see what happens in a courtroom and have a greater understanding of the importance of the judiciary can only be helpful.
While this proposed alteration is meant to address a specific problem, it has the effect of using a sledgehammer to swat a fly. Judges, under the existing rule, have the ability to examine a request for electronic coverage. To roll back access sets a concerning precedence that, I believe, would only harm overall efforts to promote greater understanding of the judiciary.

In our opinion: Efforts to remove electronic devices from courtrooms should be promptly squelched
Deseret News editorial
Published: Monday, June 16 2014 12:00 a.m. MDT
Less than a year after a rule took effect allowing television cameras and electronic media devices into Utah courtrooms, there is a move to disallow use of such devices in domestic and family law cases. Such a change is not necessary and would erode transparency and public access to judicial proceedings.
A tentative rule change put into effect in April bars the use of electronic media devices in domestic relations cases including divorce proceedings, child custody cases and hearings on protective orders. It is predicated on concerns that such cases often involve private information that, if made public, could be harmful to parties in such cases.
But the year-old law granting media access, which was long sought by media organizations and groups advocating for open government, contains adequate protections against dissemination of information a judge may deem private. Pursuing a blanket banishment of electronic media coverage would set a precedent for future restrictions on public access to court proceedings.
The rule change does not bar news reporters or members of the public from attending cases involving domestic relations; it only disallows electronic video and audio recording devices. Restricting those devices doesn’t add to existing safeguards designed to protect vulnerable parties in domestic cases, including abused spouses and children involved in custody disputes. Judges may easily restrict documents and testimony from public disclosure in such cases, and they frequently exercise that prerogative.
The rule change may be repealed after a comment period that ends later this month. Should it remain in place, it could open the door to similar restrictions in other proceedings. Virtually all types of court cases are capable of delving into matters that individuals may wish to keep private.
In short, the change in administrative rules looks a lot like a solution in search of a problem.
The rules allowing access to electronic devices took effect last year after decades of lobbying by journalism organizations and institutions in favor of openness and transparency in the judiciary. At the time, members of the Utah Judicial Council who voted in favor of more access said the new rules would move Utah “into the next era” and align the state with the majority of state court systems which have long been open to cameras and other recording devices.
There is no compelling reason for the state to backtrack on that important and groundbreaking effort. The body of law in place since last year ensures a presumption of openness in our judicial system, and we see no credible reason that presumption should be reversed in the domestic court calendar.

As an investigative reporter and digital editor for the Standard-Examiner I am respectfully opposing the proposed changes to Rule 4-401.01 as this hampers the public’s right to access.
I believe a scalpel should be used and not a machete when determining a rule change that would affect nearly 3 million Utahns and even more out of state reporters or families looking for public information stemming out of Utah Courts.
The public’s right to know should not be hampered this harshly due to an inability to control one person. As stated in previous comments this rule change shows a lack of leadership and no attempt to lawfully protect everyone’s right to public records.
The rule change inhibits the majority in order to truly handle a minority issue.
I would respectfully ask the court administrators and administrative bodies please take this issue back to the drawing board for a more reasonable solution.

I serve on the Judicial Outreach Committee, which recommended these amendments to the Judicial Council, and I voiced my strong opposition when these changes were precipitously voted through after less than an hour of discussion. I also co-chair the Bench-Media Subcommittee, which includes many members of the news media and judiciary, where the issue of Mr. Johnson’s EMC requests was first brought for discussion. Just a week before these changes were voted through, my subcommittee had a vigorous and lively debate about the complicated issues involved and the need for much more discussion and planning before changes were made to a cameras rule that was years in the making. The fact that these changes were pushed through almost immediately afterwards, and then made effective prior to any public comment just to deal with Mr. Johnson’s pending requests, reveals a flawed process that has proposed flawed changes to this rule. I urge the Judicial Council to reject the changes to subsections (2)(A) and (2)(E) that categorically remove the presumption of EMC in every domestic case.
The changes to subsection (2)(A) appear superficially innocuous. They are made to seem like they are just conforming the EMC rule to the categorization of records in domestic cases as private under the Utah Code of Judicial Administration. But the changes to the EMC rule have nothing to do with records. It is critical to remember that the EMC presumption applies only when the hearing at issue is already open to the public. It is black-letter prior restraint law that the contents of a document discussed in open court are placed in the public domain and cannot be restrained from publication or kept confidential by the court. The content of any private record in domestic cases that is discussed in open hearings, therefore, no longer has that status. There is nothing about the presence of cameras in such open hearings that changes that fact. If the parties in a domestic case see the need to maintain the confidentiality of a record that is discussed in a hearing, their remedy is to seek to close the hearing itself and satisfy the constitutional standard for doing so. Because EMC is only allowed in open hearings, the confidentiality of records is not an EMC issue. The amendment’s attempt to gloss over this fact, by misleadingly referring to “case types classified as private under rule 4-202.02(4)(B),” when in fact that rule only deals with records—not hearings—is inaccurate and conceals the actual purpose of the amendment.
These rule changes are being driven by a reaction to a single individual. Any time a rule is changed as a reaction to a single incident, it is likely to be bad policy. And that is indeed the case here. Rule 4-401.01 was passed after months of study and discussion and considerable debate about the presumption of EMC it codified. That presumption is a recognition that when hearings are already open to the media and public, and the media are free to report in traditional ways about the proceedings, there is usually no reason to prohibit EMC. In fact, EMC often provides more accurate information about the proceedings than second-hand reporting. That is true regardless of the type of case—domestic, civil, criminal, or otherwise.
Many people have a reflexive reaction that domestic cases are more sensitive, or more confidential, than other types of proceedings. But that too is not the issue here, since the EMC presumption only applies to hearings that are already open to the public. And domestic cases have no monopoly on sensitive or confidential issues. Those concerns are addressed by judges every day across the legal spectrum in the discharge of their public duties. When families come to the courts to resolve domestic disputes, they are availing themselves of a public process that is presumptively open to the public. The reflexive reaction of a family’s business being private is out of place once the family calls upon the public courts to address those issues. The EMC rule recognizes this fact by aligning the presumption of EMC with otherwise public hearings and maintaining that no type of open hearing is categorically different, in every single case, from any other open hearing.
Certainly there will be aspects of some hearings, in some domestic cases, where the benefits of EMC are outweighed by the particular interests or harms EMC might cause. That is also true of other types of cases. Those situations are likely to be unusual, and obviously not present in every single hearing in every single domestic case, as the amendment presumes. And Rule 4-401.01 is already well-equipped to deal with those situations. It is laden with factors judges can consider in granting or denying EMC requests, including limitations to protect the interests of a minor, or to prevent an unwarranted invasion of personal privacy, or to protect the safety or well-being of any individual. Indeed, direct EMC of a minor is already presumptively disallowed by the rule. It is a far wiser course of action to commend these specific determinations to judges handling each individual hearing than to categorically remove the presumption of EMC from every single open hearing in every single domestic case.
There is another problem with treating domestic cases as different from every other kind of open hearing—if it is allowed, it is likely not the last such change to the rule. Today it may be the family bar that is urging for their own exception to the rule. Tomorrow the proposed change may be to exempt all juvenile proceedings, then all proceedings involving a minor witness, then all sex crime cases, then all corporate trade secret cases, and on and on, until the rule and its bedrock presumption are eviscerated. That is why the original rule gave discretion to judges to consider EMC requests on a case by case basis and treated all open hearings the same, rather than endorsing iterative exceptions to the rule.
History has repeatedly shown that increasing public access to and transparency of the courts improves public trust in the judiciary and fosters systemic accountability. This need is particularly urgent in the area of family law, as that is the portion of the court system with which most people, over the course of their lives, will have some interaction. Public perception of the unfairness, gender bias, or otherwise skewed nature of domestic law will only be exacerbated by secreting the operations of the courts beyond public view.
For all of these reasons, the proposed changes to subsections (2)(A) and (2)(E) are both unnecessary and unwise. I urge the Judicial Council to reject them.

As a journalist and journalism professor, I am opposed to the blanket decision to change Rule 4-401.01. Video keeps people honest, especially when the voting public is watching.
When I worked full-time for KUTV, the system which allowed only still photography seemed odd (I moved to Utah from a state which allowed video); why did the courts trust a frozen image to capture a person’s reaction, which may be longer and more complicated? Why did the courts rely on a reporter trying to quote or paraphrase someone, when a video camera can replay their comments verbatim, with the accompanying non-verbal cues and inflection?
Instead of closing off Utah’s Court system to all except those with the time to watch it work in person, can we not work together to address specific concerns?