Posted: May 21, 2024
Notice of Proposed Amendments to Utah Supreme Court’s Advisory Committee Rules – Comment Period Closes July 5, 2024
The Utah Supreme Court invites comments to the following proposed new rules. The comment period will close on July 5, 2024. The proposed rules identify factors judges should consider when setting in-person, remote, and hybrid hearings. The proposed rules also specify how hearing participants may request to appear in a manner opposite of the initial court setting. Finally, the proposed rules provide factors judges should consider in approving or denying a participant’s request.
URCP087. New. In-person, remote, and hybrid hearings; requests for accommodation.
URCrP017.05. New. In-person, remote, and hybrid hearings; requests for accommodation.
URJP061. New. In-person, remote, and hybrid hearings; requests for accommodation.
The title may be confusing. “Requests for accommodation” sounds like the rule refers to requests for accommodation under the Americans with Disabilities Act. A possible alternative is “requests for different format.”
Subparagraph 87(c)(A)(i) (lines 41-42) seems circular. I suggest it be modified as follows: “(i) An email or letter request must be copied on all parties ‘to the action’ [on the request];”
In subparagraph 87(c)(B), the last line (The motion need not be accompanied by a supporting memorandum) should be omitted. That is already covered by Rule 7. And the wording “need not” implies that a memorandum is not required but could still be submitted.
Please include a definition for “exigent circumstances.”
I support this rule change. A standardized process will make it easier for parties to know how to request accommodations and I support remote hearings for brief procedural hearings in almost all cases.
I’m wondering if URJP(c)(1)(A), allowing for an email request, should have the same provision as a motion request: the email must succinctly state the grounds for the request. Otherwise, it will be difficult to determine the reason for the request. I also think the inclusion of an email address to which the WebEx link can be provided by the court should be included in the email or motion request.
Other the forgoing, the rule looks good and appears fair.
Thank you to the committee for on its hard work in crafting this rule. I’m in support of the proposed new rule which allows the judge/commissioner to make the determination on remote appearance and provide a mechanism that doesn’t require motion practice to decrease costs.
Comment on Proposed Utah Rule of Civil Procedure 87
The proposed URCP 87 may affect the guardianship of an adult in some unintended and undesirable ways. Specifically, Utah Code § 75-5-303 provides:
(2)(b) Unless the allegedly incapacitated person has counsel of the person’s own choice, the court shall appoint an attorney to represent the person in the proceeding….
(5)(a) The person alleged to be incapacitated shall be present at the hearing in person and see or hear all evidence bearing upon the person’s condition. If the person seeking the guardianship requests a waiver of presence of the person alleged to be incapacitated, the court shall order an investigation by a court visitor, the costs of which shall be paid by the person seeking the guardianship. (Emphasis added.)
The proposed URCP 87(a)(2) specifically states “’In-person’ means a participant will be physically present in the courtroom.” Further, proposed URCP 87(a)(1) includes an attorney as a “participant.”
Taken together, a judge may interpret that all parties and their attorneys must be physically present in the courtroom for any § 75-5-303 hearing. Such an interpretation would have a detrimental impact on access to justice in these matters.
1. Impact to Incapacitated Individuals
Respondents to adult guardianship actions are predominantly elderly, frail, mentally ill, subject to agitation in high-stress situations, and otherwise find it difficult to procure transportation to a courtroom.
Currently, the Second, Third, and Fourth Judicial Districts typically handle these matters in dedicated law-in-motion/consent calendar hearings, where the court hears multiple matters at once. Beginning with the Covid-19 Pandemic, most judges began accepting the incapacitated person’s “in person” presence at the §75-5-303 hearing to be satisfied by WebEx attendance.
Prior to the Pandemic and the availability of WebEx hearings, if an individual could not physically attend the hearing, the judge would first have to assign a court visitor and then determine if it was appropriate to waive the individual’s presence.
The WebEx option greatly reduced the number of presence waivers requested and reduced the burden on the Court Visitor Program (a program staffed almost entirely by volunteers, which also has other investigative roles within the guardianship context).
I am concerned that returning to an interpretation of §75-5-303(5)(a) which requires physical presence of the incapacitated person will discourage access to justice for individuals who can virtually attend, but find it extremely difficult or expensive to attend in person. It is preferable to have attendance from the alleged incapacitated person via WebEx, than to have their presence waived altogether. It will also add additional burdens to the Court Visitor Program, which is already struggling to keep pace with the demands for its services.
2. Impact on Representation of Incapacitated Individuals
Section 75-5-303 requires representation for the person alleged to be incapacitated. It is difficult to find such representation in Utah’s more rural communities. Virtual hearings have made it possible for attorneys to represent individuals without traveling tens or hundreds of miles to appear at a hearing. It also allows me, when necessary, to attend the hearing with my client from my incapacitated client’s care facility.
Additionally, when an alleged incapacitated person cannot afford their own attorney or unable to choose one, the Court’s Guardianship Signature Program (GSP) must step in to provide representation. The GSP recruits volunteer attorneys to represent proposed protected persons in guardianship cases. Right now, it is challenging to recruit GSP volunteer attorneys, and the program—even now—has many cases which it cannot staff.
Being one such volunteer, I know that if I were not guaranteed the ability to attend a hearing remotely, I would volunteer for fewer cases because I would have to factor in more time. Additionally, I would never volunteer for anything but those who volunteer report that an assuredy being able to attend hearings remotely makes it possible for them to volunteer. If Courts are not lenient with allowing volunteer attorneys to appear virtually, then recruitment of volunteer attorneys will be even more difficult.
Assuming that the Civil Procedure Advisory Committee does not intend that Civil Rule 87 will inadvertently make adult guardianship hearings more restrictive, some exception for § 75-5-303 needs to be made.