Code of Judicial Administration – Comment Period Closed February 17, 2017

CJA 03-117 on charge to forms committee:

The following should be added:

1) “No new form shall be approved until the Committee has ensured obsolete forms have been removed from all court clerk offices and destroyed and removed from the Courts’ OCAP system and website.

2) “In the form for whether a party is on active military duty, there shall be no language about entering a default certificate or judgment.”

3) “No form shall be approved for publication and use on a consent calendar. Rather, each member of the Judicial Council or Board of District Court Judges shall review the form and not vote for approval without having first read the form.”

The justifications for these proposals are:
1) There are obsolete forms in our system containing outdated procedures and incorrect law (see, e.g., the federal weapons provisions in the stalking injunction forms).. These forms tend to be available in clerks’ offices and through searches resulting in forms appearing from the Court website. The first thing the committee should undertake is a thorough search of clerk offices and the court database to delete old and inaccurate forms.

2) A finding of military service or not does not equate to the ability to enter a default or not. There are other requirements. Yet we continue to see language such as “The Court finds the respondent is not on active duty military service and a default may enter.”

3) We have found incorrect forms were put in place by committee staff and the Board of District Court Judges could not remember voting on them. No form should be promulgated until the governing body–Boards or Council–actually reads and votes on them.

On behalf of the Judicial Rules Review Committee of the Utah State Legislature, we recommend the following changes to CJA02-212, Communication with the Office of Legislative Research and General Counsel:

On lines 19-20, we recommend that the rule state that the Administrative Office of the Courts send a draft rule of the Judicial Council to “staff of the Judicial Rules Review Committee within the Office of Legislative Research and General Counsel and the chairs of the Judicial Rules Review Committee.” These individuals can be found on the Utah Legislature’s website: le.utah.gov. By specifying the individuals who receive the information, it ensures that the information will be properly considered by the individuals assigned to review judicial rules under Utah Code, Title 36, Chapter 20, Judicial Rules Review Committee. Even during those times when the Judicial Rules Review Committee is less active, the Office of Legislative Research and General Counsel will designate staff for the committee.

For the same reasons stated above, on lines 28-30, we recommend that the rule state that the Administrative Office of the Courts notify the “staff of the Judicial Rules Review Committee within the Office of Legislative Research and General Counsel and the chairs of the Judicial Rules Review Committee” of final action on any rule the Judicial Council adopts.

On lines 21-22, we recommend that the rule state that a draft rule be submitted at the “same time the draft rule is submitted to the Council and when the draft rule is published for public comment.” Utah Code § 36-20-3 provides that a proposal for a court rule be submitted to the Judicial Rules Review Committee “when:
a) the court rule or proposal for court rule is submitted to:
(i) the Judicial Council for consideration or approval for public comment; or
(ii) the Supreme Court from the advisory committee after its consideration or approval; and
b) the approved court rule or approved proposal for court rule is made available to members of the bar and the public for public comment.”

We appreciate your consideration of these recommendations.

Sincerely,

Todd Weiler, Senate Chair Daniel McCay, House Chair
Judicial Rules Review Committee Judicial Rules Review Committee

RE: Rule 4-202.02

As the Executive Director of the Radio-Television Digital News Association (RTDNA,) the nation’s largest professional association of electronic journalists with members in Utah and across the United States, I am writing to register our opposition to this rule amendment, for the following reasons:

1.) The Amendment is unconstitutional. There is a presumptive right of access to court records under both the First Amendment and the Utah Constitution. Placing an entire category of criminal court files off limits to public inspection makes it difficult or impossible for journalists and the public at large to have official knowledge of those proceedings.

2.) The Amendment is unnecessary. Utah law currently provides for an accused to seek expungement of charges under certain statutory conditions. We believe a case-by-case consideration of this issue is far preferable to putting all criminal dismissal cases out of the public light.

3.) The Amendment is bad policy. The public interest is best served when court proceedings–regardless of their outcomes–are transparent and open to scrutiny. Accurate reporting on these cases is critical to hold court officers and the courts themselves accountable for their actions.

For these and other reasons, the RTDNA strongly urges this Amendment be rejected and the Utah courts continue to follow present accepted practice with regard to the availability of court records, regardless of the disposition of the cases.

Thank you,

Sincerely,

Mike Cavender
Executive Director
RTDNA
Washington, DC

CJA04-202.02. Records Classification. Amend. Makes dismissals in criminal cases private except in limited circumstances.

In regards to this proposed amendment – I strongly disagree with this action. It’s a blatant contradiction to our constitutional right to access court records under the First Amendment and the Utah Constitution as well. Restricting access to journalists and therefore the general public of a total section of records is simply bad policy and prohibits the blessed checks and balances system on which our country is founded. We must have access to records to make sure people and institutions are working as they should be and are held accountable for their actions. Being able to review the process from start to finish, regardless of its outcome, is vital in ensuring justice is served. The public has the right to be informed and to take action. As I understand it, this amendment is not only unconstitutional, it is completely unnecessary since Utah Law already provides defendants to seek removal of charges under existing statutory conditions and Utah law already allows citizens to seek privatization of public court records based on their argument of need. The existing case-by-case approach is much more logical than a total, across the board block of all criminal dismissal cases which again, is an absolute disregard of our constitutional rights to review and question the judicial process for the sake of ensuring fairness and balance.

I appreciate your consideration of my opinion.
Sincerely,
George B. Severson
Director of News and Local Content
ABC4 Utah/CW30
Taylorsville Resident

I write in opposition to CJA04-202.02, which seeks to make dismissals in criminal cases private, except in limited circumstances.

This rule change would significantly affect transparency in court proceedings by obscuring a subject’s prior history. That prior history can be telling, both for the subject of the record and the court itself.

As a reporter, being able to write or broadcast whether a criminal case is dismissed and being able to see documents that reveal why it was dismissed are important. It is not only important for the issue of fairness, but also to explain important judicial determinations by prosecutors, defense attorneys and judges.

This rule seeks to roll back important information at a time when the courts have been making moves to be more open and transparent to the public. The existing policies of the courts on privatizing records as well as a process of expungement for defendants is already working.

Regards,

-Ben Winslow
Reporter, KSTU FOX 13
Salt Lake City, Utah

I am commenting on CJA04-202. I oppose the proposal to make private criminal court records when the charges or indictments have been dismissed.

If adopted, the rule would deny access to a large number of court records, including cases with important facts but where justice was not served. The recently dismissed case against former Attorney General Mark Shurtleff is the easy example, but it’s not difficult to imagine scenarios where your babysitter, doctor or blind date was thought to have done something serious, but the case was dismissed for a technical reason or because a witness didn’t appear for trial.

Incongruities also are possible. Charges could be dismissed against a co-defendant who agrees to testify. So even though he or she may have done everything the remaining defendant did, the witness’ case file is sealed. Likewise, you can have someone that was wrongly convicted or whose conviction was overturned on appeal, and while that person’s court record is available, there will be no record available for a defendant who was fortunate enough to have his or her case dismissed.

I am also not aware that any other state court system has such a rule. Such a rule certainly does not exist in federal court. Utah could become the oddball with a strange court rule.

I do not know why this rule was proposed. I suspect there is a fear that dismissed cases still leave a certain stigma on the defendant.

However, the Utah Legislature created a remedy for that. The defendant can apply for an expungement of the arrest and charges.

The courts in Utah are part of a great American tradition of open courts. Please don’t work against that tradition. Please reject the proposal in 4-202.02.

Nate Carlisle
Reporter, Salt Lake Tribune
Board member Utah Headliners Chapter of Society of Professional Journalists

CJA04-202.02. Records Classification. Amend. Makes dismissals in criminal cases private except in limited circumstances.

The idea of classifying as private criminal court records in which the charges are dismissed would critically hamper the public’s vital right of access to the court system and of the ability for the public to scrutinize the judicial process.

While the intent of this rule change may be to restore reputations of people who have been wrongly charged, classifying those court files as private would mean the public couldn’t even know that such charges have been dismissed.

As a newspaper of record, the Deseret News regularly reports on criminal cases throughout the state. When charges are filed in a newsworthy case, that information is published so the public knows what crimes are occurring and what charges prosecutors are filing against those accused of such crimes. If a case is dismissed, unless a reporter is present during the hearing to learn first hand when such action occurs, how will the newspaper be able to publish a story that says such charges have been dropped? How could explanations of such actions taken by prosecutors and other public employees be presented to the public? In such cases, the accused’s reputation could be unfairly tarnished because the records reporting the dropping of the charges aren’t available to the public, leaving only the original stories about the charges that were filed and the allegations found within them available through a simple web search.

Occasionally, the Deseret News receives requests to annotate archived stories on the web about people whose cases were dismissed or whose situations otherwise changed from previous news reports. Without public court records to determine whether such cases were dismissed and why they were dismissed, we would be unable to accurately report on any changed circumstances.

Years of experience as a courts reporter and an editor have taught me that in the majority of criminal cases where charges are dismissed, it is not because police and prosecutors believe the crimes weren’t committed by the defendant. Many times, the prosecution isn’t prepared to move forward, for example, when a witness doesn’t show up. Sometimes witnesses disappear for fear of retaliation. Sometimes state charges are dismissed so federal charges can be pursued. Sometimes a person is charged in several cases and one is dismissed in lieu of conviction on the others. This is important information that the public has the right to understand about a criminal case. Another important component of a dismissed criminal case is also whether it was dismissed with or without prejudice. Such information is important for the public to know. If a case is dismissed without prejudice and is later re-filed, the public has the right to know the differences between the new and old case and compare what changes prosecutors may have made to their case. If such dismissed cases become private, the public would not know about the previous case nor would it be able to compare the two.

Part of the job of the free press is to independently be a watchdog to police, prosecutors, defense attorneys and judges. If prosecutors are filing charges against innocent people, the media should and will report such important information to the public. County attorneys, district attorneys and attorney generals are directly elected by the public, which has a right to know how they are performing their duties. Judges are also retained through general elections. Taking away information about dismissed criminal cases takes away important information the public is entitled to know. If a judge dismisses a case, the public has a right to know why it was dismissed and if there is any pattern a judge may have in dismissing cases.

The public needs to know why charges in a case have been dismissed just as much as the public needs to know why charges were filed in the first place. The public’s resources are also being used to investigate, prosecute, often defend, and adjuciate these cases. These cases are referred to as “The State of Utah versus John Doe” for a reason. It is the public, its tax dollars and its laws that are prosecuting (and often defending) those accused of breaking the public laws. As such, the public has the constitutional right to know how such cases are handled in court, which includes their resolutions, be it through an acquittal, a conviction or a dismissal.

For these and other reasons, i urge you to reject the proposed changes to rule 4-202.02. Thank you for your consideration.

Brian West
News director, Deseret News

RE: CJA04-202.02. Records Classification.

As Acting News Director at 2News (KUTV/KJZZ/KMYU), I’m writing to oppose the proposed rule change. We feel the proposed change would severely limit our access to important information in our community. Being able to view an individual’s entire history of criminal legal interactions is a vital part of evaluating a story and providing appropriate context in our reporting.

The courts have taken important steps toward greater transparency and openness in recent years. This feels like a step in the wrong direction.

Thank you for the opportunity to respond.

Don Kauffman
KUTV

RE: CJA04-202.02
As has been the case for decades in Utah when talking about the Government Records Access and Management Act, court records or the Open Meetings Act, the Legislature and other policymakers, have generally preferred a “surgical approach” rather than a shotgun approach to improving Utah’s public records laws and policies. Unfortunately, the proposal to amend CJA04-202.02 fits into that later shotgun approach category of overly broad policy without properly balancing all public and privacy interests in these records.

I was fortunate enough to serve as one of 13 members on the “Privacy and Public Court Records” Committee appointed by the Utah Judicial Council during 2004. The committee looked at how court records would be made available online. I believe that months-long discussion was invaluable in setting judiciary information balancing standards. However, now 13 years later, this blanket exemption flies directly in the face of the principles adopted by the Privacy and Public Courts Committee. Unfortunately, I believe the work of that committee has been long forgotten, resulting in a knee-jerk information closure such as this rule proposes. (I am including a link here to the report which is worth review https://www.utcourts.gov/Privacy_Public_Records/Report.pdf/)

Specifically, Rule CJA04-202.02 would simply override the Constitutionally-mandated process for closing an entire category of records. Reviewing the record closure outlined by Privacy and Public Court Records committee on Pages 7-8 relies on both Constitutional and statutory standards. It reads:

“Since court records are public unless classified otherwise, we believe the same fundamental procedures adopted by the Utah Supreme Court in closing court hearings should apply to closing public court records. Specifically, a party seeking to close a public record must serve advance written notice of a closure motion upon the opposing party, the court and any press representatives who have requested notice in that particular case. The judge must:
‘
1) Conduct a hearing when a motion to close a record is contested, when the press has requested notice of closure motions in that particular case or when the judge decides public interest in the record warrants a hearing;
2) Identify and analyze with particularity the court record, the interests favoring access and the interests favoring closure;
3) Apply the constitutional standard or the common law standard that applies in the
circumstances; and
12 Society of Professional Journalists v. Bullock, 743 P.2d 1166, 1177 and fn. 15 (Utah 1987) citing KearnsTribune Corp. v. Lewis, 685 P.2d 515 (Utah 1984).7
4) Make written findings that the interests favoring closure outweigh the interests favoring
access and that there are no reasonable alternatives to closure sufficient to protect the
interests served by closure, such as redaction, etc.”

In the case of dismissed charges, the first, second and fourth principle are key. This proposed rule is tantamount tossing all records about dismissed charges in Utah into an unconstitutional information black hole. To assert that all of these dismissed charge cases are exactly alike, all raise the same issues, and therefore deserve the came classification is ludicrous. The very specific nature of each case demands a case-by-case judgment where the interests favoring closure for privacy or other reasons outweighs the interests keeping it open are balanced.

Furthermore, this rule would rob Utahns of the Constitutional protection of open courts and thereby open records. Such policy of open courts and open court records must be given even stronger value when considered alongside Utah’s GRAMA’s guiding principle that all records are “presumed open” unless there is a specific exemption to close them. This rule turns both the Constitutional and statutory right of access on its head and then requires citizens to go to extraordinary means, probably including hiring an attorney and expending legal fees, to mine this presumptive public record out of the information black hole the judiciary proposes to create. This simply create’s a devil’s workshop. There is plenty of evidence in many U.S. jurisdictions where authorities have tried to hide behind such information black holes to protect criminals and errant police officers and elected officials. I don’t have the time here to go into details, but would happy to provide such information.

I hope that the Judicial Council rejects this unconstitutional, unnecessary and overly broad rule change that flies in the face of Utah’s developed record policy that enshrines balancing tests for all interests surrounding records. Most importantly, it is an anathema to the First Amendment principles of open courts and public accountability.

Joel Campbell
Associate Professor — journalism
Brigham Young University (for identification purposes only)
School of Communications
Lindon, Utah

P.S. A note about this policy process. Unlike other public agencies, why does not the court publish justification or reasoning presented for such a dramatic change in the court policy, particularly in relation any other state or in federal courts. Unlike, the amendments to GRAMA and other record policy changes that go through the Legislature, I don’t see any evidence that all parties who would be concerned with this policy have been invited to the table to discuss it. I hope that this one-dimensional sterile comment process is not considered sufficient engagement in very opaque policy promulgation process. The appearance of this policy change was a surprise to many. The Judicial Council knows how to conduct more transparent and open processes. I was part of a committee that conducted a more open and public review of record policy. What’s the benefit? As we have seen at the Legislature, when broad public discussion is heard and considered, it is easier to do small surgery to correct an record policy issue, that cutting off a limb. Reasonable protections of privacy result from better public input and processes. In this case, I believe broader public discussion may have shown the out-of-step nature of this policy earlier or shown its unnecessary function when compared to remedies already on the books.