Posted: September 19, 2023
Code of Judicial Administration – Comment Period Closed November 3, 2023
CJA06-0301. Authority of court commissioner as magistrate. (AMEND). Within the bounds of Utah Code section 78A-5-107 and constitutional limitations on the delegation of judicial authority, the proposed amendments broaden commissioners’ magistrate authority. The rule identifies the types of cases and matters court commissioners are authorized to hear and the types of relief and orders they may recommend. The rule also establishes timely judicial review of recommendations and orders made by a court commissioner.
CJA04-0202.08. Fees for records, information, and services. (AMEND). The proposed amendments 1) clarify that personnel time may be charged to copy records, 2) clarify that court appointed attorneys qualify for a fee waiver if they are requesting records on behalf of an indigent client and the client would qualify for a waiver, and 3) add a provision regarding bulk data. Bulk data fees and individual hourly rates removed from the rule would be posted on the court webpage.
CJA04.0202.02. Records classification. (AMEND)
CJA04-0202.03. Records access. (AMEND).
The proposed amendments classify video records of court proceedings, other than security video, as sealed and limit access to 1) official court transcribers for the purposes outlined in Rule 5-202, 2) court employees if needed to fulfill official court duties, and 3) anyone by court order. Individuals denied access may file a motion with the court under Rule 4-202.04.
Re: proposed amendments to CJA04-0202.02 (Records classification) and CJA04-0202.03 (Records access), what is/are the motive(s) behind these proposals:
1) The record of public court proceedings is public record. Knowing this, the question is: who is harmed by public access to a “video record of a court proceeding” to the point that the harm justifies absolutely prohibiting public access to that record?
2) Based upon my years of (documented) personal experience and the policies behind public access to public records, it appears to me that those who currently administer Utah courts want to contrive and enjoy the public perception that the records of public court proceedings (i.e., the records of the public proceeding itself)–particularly the public proceedings in domestic relations proceedings*–are available to the public while the courts withhold these records from the public, and (ironically) in a transparently illogical, arbitrary, and capricious manner.
Unless and until someone makes a cogent argument to the contrary, it appears to me that the real and overarching purpose of these proposed amendments is to impede public scrutiny of public court proceedings and of the judges and commissioners presiding over them. Such secrecy breeds only suspicion and distrust.
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*These proceedings are open to the public and the record of these proceedings is public record, but many judges and commissioners believe or claim to believe otherwise.
With regard to CJA06-0301, this is a concerning choice for several reasons.
Line 70: The proposal indicates that commissioners can dismiss cases at prelim but only without prejudice, and the dismissal is subject to de novo review. I’m not sure if this makes the evidentiary hearing de novo or just the argument phase of the prelim de novo (i.e. can prosecutors get another evidentiary hearing just by appealing, or is this a de novo review of “the record”). If it’s the former, then I worry about the gamesmanship that may result from this position. One important way in which criminal cases get dismissed early in the process is because a witness withholds cooperation with the State’s case. A prosecutor may request a continuance of the prelim if a key witness no-shows, and judges often allow one or two continuances when a witness fails to appear for apparently innocuous reasons. However, sometimes key witnesses simply do not want to participate with the prosecution for any number of principled reasons. Preliminary hearings serve as useful screening tools to weed out cases that that aren’t going to go anywhere, and to do so without holding a case up for months-to-years at the pretrial stage. This proposal essentially adds additional hurdles to getting these sorts of cases screened out. If a magistrate dismisses a case with the awareness that the State has uncooperative witnesses, a prosecutor can appeal that decision, not because it is a decision worth appealing, but because it allows the case to drag on longer, keep a pretrial incarcerated detained longer, at the expense of driving inefficiency in courts that are already gummed up with cases.
Line 79: Because commissioners can’t accept pleas, it means that any resolution of a case before prelim will have to get rescheduled to a judge’s calendar. Since it’s very common to resolve cases pre-prelim (in fact, I suspect the majority of cases are resolved pre-prelim), the proposal is going to create an extra calendar date for A LOT of defendants. I imagine this being particularly frustrating for public defenders, where a resolution can be reached on a client’s case, but there’s a built-in 2-3 week delay to get a plea handled simply because the case is pre-prelim. In other words, this creates an inefficiency in the system that puts a lot of strain on defendants and defense attorneys, particularly public defenders.
Line 82: This indicates that magistrates can’t enter “final pretrial status orders” (citing the bail statute). I’m not sure what a “final pretrial status order” is. The term “final” doesn’t exist in the bail statute that way. And while an order of detention is appealable as a matter of right, it would not be correct to refer to any pretrial order as a final one. Hazarding a guess at the intent of this term, I’d be worried that this term means that a magistrate can never release someone if they come in at their initial appearance in custody, or at any stage in the preceding until after a preliminary hearing, assuming a magistrate holds onto the case through preliminary hearing. There are sometimes very good reasons for a defendant to be released at the initial appearance, or in any event, before/during a preliminary hearing. And it doesn’t make sense to limit magistrates from entertaining such releases. If a magistrate can issue a no-bail warrant, surely she can vacate an order to hold without bail, or make any other order of release. I strongly urge a modification of this rule to the extent that it would either cause unnecessary procedural delays in having a defendant’s release be addressed, or would require a rather confusing system of having a magistrate oversee a case through preliminary hearing, but darting on a judge’s calendar for release decisions when they come up. Our system is already incredibly inflexible in entertaining a defendant’s release. The Third District has never tried to follow the legislature’s instruction to allow detention hearings within 10 days of a defendant’s arrest (whenever I’ve asked for a detention hearing at an initial appearance, I have always been given scheduling conference date with the assigned judge more than 10 days after the arrest).
Our courts are overburdened. We all feel it. This proposal shifts some of that burden from judges to commissioners. However, it also shifts that burden onto defendants and defense attorneys (particularly public defenders), and we don’t get better justice outcomes when additional burdens are added to the public defender’s workload.