Code of Judicial Administration

The express purpose of UCJA 4-401.01 was to open public court proceedings to greater public access, but that has not been how the rule is applied. When the original version of 4-401.01 was issued, I started the Utah Family Law TV channel for the purpose of reporting on the operations of Utah courts in domestic relations cases.
My channel’s stated purpose (written on the channel site itself) is “Utah Family Law TV, and the reporters connected with it, gather, record, photograph, report, and publish information for the primary purpose of disseminating news and information to the public pertaining to Utah family law and other domestic relations matters.”
As soon as UTFLTV started making electronic media coverage requests, however, the courts reacted with patently lame excuses for denying the requests. Without wishing to appear immodest, my channel is the reason why Rule 4-401.01 was amended in April of 2014 to make it more difficult (though ostensibly not impossible) to cover public domestic relations proceedings. No matter how UTFLTV offers to bend over backward by volunteering to blot out faces, bleep out words, and any other reasonable accommodation so that the news can be reported without unduly invading the privacy of others, our requests are routinely denied statewide. Not because the requests are improper or will cause harm, but because the courts don’t want themselves covered by the news media.
My concern, then is this: it appears to me, based upon my experience as an electronic media journalist, that Utah courts want credit for appearing more open to electronic news media coverage without actually being more open to electronic news media coverage.
This new proposed amendment language, if applied in the spirit of Rule 4-401.01’s stated intent, would strike a fine balance between public access, freedom of the press, and preservation of participant privacy.
HOWEVER, the language can be (and surely will be, based upon my previous experience) construed so that the courts can define who or what is a journalist because the rule does not define the term. Making the definition a purely subjective one will–mark my words–will result in courts capriciously defining “journalist” and “news reporter” and “predominant purpose” on a shifting, ludicrously narrow, and case by case basis not for the purpose of protecting privacy, but to keep reporters they do not want in the courtrooms out and allowing those they do want in.

The exception for private cases is justified. It is impossible for the Court to police how information is used and disseminated outside the courtroom, and the privacy interests of parties and children in those proceedings are more important than the claimed interest, asserted by a certain operator of a private website, in being able to make and publish recordings of court hearings for “educational purposes.” In the event a particular hearing or case is in fact newsworthy, it may be appropriate to conduct a hearing to determine whether the privacy interests are outweighed by the public interest in news.
As it is, we are inundated by requests by this one website operator, who happens to also be a practicing family lawyer, with requests to record proceedings that on their face have no general newsworthiness. His position is that he is no different than any other media outlet, and that he does not have to prove that a case is newsworthy because of the presumption provided by the rule (even though the rule as now written excepts domestic and other private cases from the presumption). I have determined that, although the rule presently allows an ex parte request, I would not consider allowing such a request except after notice to all parties and counsel and an opportunity to be heard on the subject. This puts the requesting party in the position of being able to, if nothing else, subject the parties to unnecessary expense, and possibly a delay of a hearing so the issue of whether to allow recording can be heard (these requests are generally made on just a few days’ notice). It also puts a potentially significant additional burden on the court and staff. I do not know how else I could possibly make the necessary findings in a fair way. And frankly, I do not know how I can make findings about what the “purpose” of the request is, at least not without, again, taking evidence and allowing all parties and counsel to be heard on the issue. I do not think changing the rule to limit the presumption to genuine journalistic and news-gathering activities is going to do anything other than shift the focus of the inquiry.

I feel the conduct of the officers of the court should conduct themselves with the up most scrutiny.
The ability to cover the court will ensure compliance with the law. It will also provide those with memory issues, such as those which come with PTSD or other cases of personal trauma. To deny this is to descriminat against those who need the system to be fair and impartial holding court officers accountable to the people they serve.

Judicial Council Members must be commended for taking steps to restore the proper balance to rule CJA 04-0401.01. All public hearings should be treated equally and remain open for electronic media coverage for the benefit of the people the media serve with the purpose of journalism or dissemination of news to the public. As the News Director of two news-producing television stations in Utah, I certainly appreciate the integrity of our courts and the judge’s retaining the right to individually decide whether EMC coverage is allowed on a case by case basis, rather than eliminating an entire category of cases out right. Restricting or shutting off access to courtroom proceedings only reduces public confidence in and the accountability of our court system. I ask the court to carefully consider the sincere intention of EMC requests made with the purpose of gathering information to disseminate to the public and in doing so, it would be appreciated if the court would acknowledge the ever-changing news gathering technology used to do so and not use its authority to overly restrict who is considered a journalist, taking into consideration nontraditional media is increasingly important. In turn, I encourage all journalists granted courtroom coverage to respect the rules of the courtroom and the requirement that they must be able to share their coverage with the pool in a timely manner and generally accepted format.
I support the proposed changes to this rule and appreciate the cooperation and careful consideration of the Judicial Council.
Thank you,
George Severson
News Director
ABC4 Utah & Utah’s CW30

My comment is made with the deepest desire that the legal system have the necessary checks and balances in place to bring about justice for all, as our constitution states. I believe allowing electronic coverage of what the judges and commissioners are doing, currently behind closed doors, will bring that balance back into the court room.
My comment is made as one who has experienced blatant violation of civil rights by a commissioner and judge. Federal statute states, witnesses to crimes are to be protected from harm, namely retaliation. However, in Utah a wife cannot testify against her husband. I reported my husband for illegal distribution of drugs. The sheriff’s detective told me that it is like the Susan Powell case; that the word of a wife cannot be used against her husband. I gave evidence to help Dr. Dewey MacKay’s sentence be reduced.
Now, my husband is prosecuting me. I fully believe if what he has done in “family” court were made public the commissioner and judge would hide their heads in shame. Yet legal abuse is a common place thing in Utah. Justice is doled out to the rich. I actually had an attorney, who has the reputation to be one of the very best tell me women and children are not mentioned in the constitution. This is wrong.
We need accountability for what our judges and commissioners are doing. At this point, there is none. They do whatever they feel and there is no possibility of appealing, except for the wealthy. I whole heartedly support this change and pray cameras and reporters be allowed into the courtrooms for the sake of justice for all.

I support and appreciate the change to restore openness. Allowing the opportunity for the public, via the press, to view and better understand the court system in action improves civic understanding, and trust in the judicial system.
This is a necessary and important change.

What Commissioner Casey wrote (in his post of March 25, 2015 at 5:04 PM) is neither completely true nor truly complete, as he either knows or should know. I respond to his comments below. I mean the Commissioner no disrespect in differing with him or in correcting his misstatements.
COMMISSIONER CASEY WROTE: The exception for private cases is justified. It is impossible for the Court to police how information is used and disseminated outside the courtroom, and the privacy interests of parties and children in those proceedings are more important than the claimed interest, asserted by a certain operator of a private website, in being able to make and publish recordings of court hearings for “educational purposes.”
THE FACTS: Virtually all news media outlets are “private.” Free countries with free presses thankfully do not limit the news to state-owned and run outlets. Their private ownership status does not constitute a threat to the integrity of public court proceedings. Utah Family Law TV is not a private website, it’s a YouTube channel and it does not promote any law firm. It does, obviously, feature a lot of content produced by the channel’s owner and operator, but that should come as no surprise. Eric Johnson owns and operates the Utah Family Law TV (UFLTV) channel, but he does not advertise for his law firm on it, even though he could without that constituting a violation of UCJA 4-401.01.
COMMISSIONER CASEY WROTE: In the event a particular hearing or case is in fact newsworthy, it may be appropriate to conduct a hearing to determine whether the privacy interests are outweighed by the public interest in news.
THE FACTS: 1) With rare (but reasonable) exception, determining what is newsworthy is not the province of the very subject of the news, i.e., the judges and commissioners whose public proceedings are the subject of the electronic media coverage requests.
2) Commissioner Casey argues for hearings to determine whether electronic media coverage request should be granted, but then complains in the same breath that such would constitute an unfair burden on the courts. UCJA was written such that it does not require a hearing as a precondition to granting an electronic media coverage request. The reason for this should be obvious. UCJA 4-401.01 was intended to make news coverage of public proceedings easy, not an additional procedural burden to the courts.
COMMISSIONER CASEY WROTE: As it is, we are inundated by requests by this one website operator, who happens to also be a practicing family lawyer, with requests to record proceedings that on their face have no general newsworthiness.
THE FACTS: The courts are hardly “inundated” (besides, if they would allow some coverage, they wouldn’t receive so many requests). I have asked Commissioner Casey and other judges and commissioners who have denied UFLTV’s electronic media coverage requests to give me their definition, their elements of “newsworthy.” None of them do, none of them will. Judges and commissioner (to which I will collectively refer as “courts”) refuse to do it because courts know that as soon as they try to articulate a written definition or set of elements (a definition that will clearly and self-servingly be as narrowly and restrictively defined so as to prevent as much electronic news media coverage as possible), they will realize that 90% of what the news media broadcast now wouldn’t meet the court’s definition of newsworthy, and the court would be exposed in its scheme. When the courts, who are themselves the subject of the electronic media coverage request, also take upon themselves the role of determining what is newsworthy, is it any wonder that they will end up “finding” and “concluding” that that virtually all public proceedings are not newsworthy? This is one of the reasons why UCJA 4-401.01 was broadly, not narrowly drafted. The express purpose of UCJA 4-401.01 was to make public proceedings more open to the news media, not less.
COMMISSIONER CASEY WROTE: His position is that he is no different than any other media outlet, and that he does not have to prove that a case is newsworthy because of the presumption provided by the rule (even though the rule as now written excepts domestic and other private cases from the presumption).
THE FACTS: Nowhere in UCJA 4-401.01 is there a requirement that a news media outlet must “be no different than any other media outlet” to be considered a news reporter. Nowhere in UCJA 4-401.01 is there a requirement that a request for electronic media coverage prove that a case is newsworthy as a condition of the request being granted. And as the Commissioner and his colleagues well know, even when UFLTV asks courts (and we have asked repeatedly) to articulate the standard of proof (the extralegal standard of proof that UCJA 4-401.01 does not contain but that many courts nonetheless seemingly feel free to impose) “required” to prove newsworthiness, my request for that clarification and guidance is utterly ignored.
COMMISSIONER CASEY WROTE: I have determined that, although the rule presently allows an ex parte request, I would not consider allowing such a request except after notice to all parties and counsel and an opportunity to be heard on the subject.
THE FACTS: Again, UCJA 4-401.01 contains no such requirement, and arguably the court cannot impose additional restrictions on electronic news media requests that are not provided for in the rule. But reasonable minds can differ, and if the court wants to require a hearing to determine newsworthiness before an electronic media coverage request is granted, I would be willing to oblige, at least on an experimental basis. The courts, however, would be in no position to complain about the extra time and effort hearings on electronic media coverage requests would consume. UCJA 4-401.01 was drafted—for obviously good reason—such that a hearing on every electronic media request would not be necessary.
COMMISSIONER CASEY WROTE: This puts the requesting party in the position of being able to, if nothing else, subject the parties to unnecessary expense, and possibly a delay of a hearing so the issue of whether to allow recording can be heard (these requests are generally made on just a few days’ notice). It also puts a potentially significant additional burden on the court and staff. I do not know how else I could possibly make the necessary findings in a fair way. And frankly, I do not know how I can make findings about what the “purpose” of the request is, at least not without, again, taking evidence and allowing all parties and counsel to be heard on the issue.
THE FACTS: Commissioner Casey cannot advocate for requiring hearings and then complain about the burdens of a hearings in the same breath. If a court is going unilaterally going to compel news reporters to request a hearing and then unilaterally compel the reporters, the litigants, the court to participate in a hearing process (which UCJA 4-401.01 does not require), then it is indisputably the COURT, not the news reporter, that subjects the parties to unnecessary expense and delay. I have never asked that my electronic media coverage requests be granted if and only if they are first the subject of notice and a hearing. UCJA does not require hearings.
COMMISSIONER CASEY WROTE: I do not think changing the rule to limit the presumption to genuine journalistic and news-gathering activities is going to do anything other than shift the focus of the inquiry.
THE TRUTH: With due respect, is it so difficult to conceive of a “genuine journalistic and news-gathering activity” including the coverage of public domestic relations proceedings? First, it’s already happening in many other jurisdictions without the judiciary in those jurisdictions collapsing. Second (and this is something the courts appear to prefer no one know, UFLTV’s electronic media requests hold themselves to a higher standard than what is articulated in UCJA 4-401.01 itself. Until the Administrative Office of the Courts media liaison office forbid us to include this information in each of our electronic media requests, this is what each of UFLTV’s media requests voluntarily offered to in covering and publishing news of public court proceedings:
Please allow us some kind of coverage. Please see the next page for the voluntary restrictions we are willing to impose on ourselves to ensure that electronic media coverage more than reasonably safeguards the proceedings and their participants.
PLEASE NOTE: This reporter is more than willing to report subject to any reasonable restriction(s) the court deems necessary to protect against real (not merely feared/imagined) prejudice or any other harm articulated in 4-401.01.
NO REQUEST IS MADE TO COVER ANYTHING OTHER THAN THE PUBLIC PROCEEDINGS IN THE FOLLOWING ACTION(S). NO REQUEST IS MADE TO COVER ANY IN-CAMERA, OFF THE RECORD PORTION, OR ANY OTHER PROCEEDINGS THAT RULE 4-401.01 PROHIBITS FROM BEING REPORTED.
PLEASE NOTE: Electronic media coverage and protection of privacy and other interests of litigants and witnesses is not an all or nothing proposition. Rule 4-401.01 provides that a court may prohibit or restrict electronic media coverage of public court proceedings. Accordingly, if the court has concerns over privacy or other real dangers that electronic media coverage actually creates (as opposed to concern arising from rumored or conjectural “risks” of “possible” and/or “potential” harm, which are limited only by the power of one’s imagination), UFLTV and this reporter are willing to submit to reasonable, good faith restrictions on media coverage, and to those ends:
• have the ability—and is willing—to blot out faces and/or to “bleep out” key words and information on particular subjects designated by the court, if the court in good faith concludes that it is truly necessary to do so under Rule 4-401.01;
• will not identify parties or witnesses by names, images, or case number;
• will not publish our report until after the period for filing an appeal had expired, if the court so requires;
• will give the court, participants, and their counsel (if any) upon request the opportunity to review the report we intend to publish before we publish it to ensure the report complies with the court’s orders pertaining to protection of privacy;
• are willing to cooperate with the court fully in any and all other ways necessary to ensure that electronic media coverage of proceedings takes place in compliance with the policy, intent, and express substance of Rule 4-401.01.
If these assurances are not deemed more than reasonable and sufficient to assuage concerns, we submit that nothing will or can be, thus rendering the purpose of UCJA 4-401.01 illusory and its implementation meaningless.
PLEASE NOTE FURTHER: We desire nothing other than to gather, record, photograph, report, and publish information for the purpose of disseminating news to the public about divorce and family law and family law-related matters in Utah. We have neither the intention nor desire to: prejudice the proceedings; jeopardize the safety or well-being of any individual; commit an unwarranted invasion of personal privacy; create adverse effects greater than those caused by electronic media coverage; tax the adequacy of the court’s physical facilities; or otherwise adversely affect the fair administration of justice.
A far greater percentage of the public seek personal knowledge and understanding of the workings of domestic relations law in the district courts than of virtually any other civil action. This public interest in divorce and other domestic relations proceedings makes them newsworthy in their own right. Despite the public nature of family law proceedings in the district courts, few members of the public can or know how to come to a courthouse in person during the day to see what is happening in their courts, even though the courts are wide open to the public. It is a good thing for people to know what is happening in the courts; they are their courts. The benefits outweigh negatives, especially in creating a better understanding of and appreciation domestic relations and other matters for the public.

I write in support of the proposed modification to 04-0401.01.
The courts took a bold leap forward into the next era by allowing cameras and other electronic devices in the courtroom for news-gathering/disseminating purposes. I believe it has proven to be a success and provided greater knowledge of the role of the judiciary, as well as education about how the law functions in our society.
This modification to the rule restores access to all aspects of the court system, while providing some safeguards for concerns.
I urge members of the Judicial Council to vote in favor of it.
Regards,
-Ben Winslow
Reporter, FOX 13 News