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.
Making it easier to appear remotely is only right.
I suggest the rule read as follows (my draft is 22% shorter):
URCP 87.
Rule 87. In-person, remote, and hybrid hearings; requests for accommodation.
(a) Unless the court expressly states in its notice of hearing that circumstances necessitate a particular participant or particular participant(s) appear at the hearing:
(1) remotely by video conference or other electronic means approved by the court; or
(2) in-person,
each participant may appear remotely or in-person physically in the courtroom for the hearing, as that participant chooses, and the court shall ensure that accommodations for appearing both remotely and in-person physically in the courtroom are made.
(b) Request to appear in a manner different than as set by the court.
(1) Manner of request. A participant may request that the court allow the participant or a witness to appear at a hearing in a manner different than that set by the court.
(2) Any request must be made verbally during a hearing, by email, by letter, or by written motion, and the participant must state the reason for the request. If a participant is represented by an attorney, all requests must be made by the attorney.
(i) An email request must be sent to the court’s email address, which may be obtained from the court clerk.
(ii) A letter request must be sent to the court’s physical mailing address, which may be obtained from the court clerk.
(iii) An email or letter request:
(A) must be copied on all parties on the request;
(B) must include in the subject line, “REQUEST TO APPEAR IN PERSON, Case ___________” or “REQUEST TO APPEAR REMOTELY, Case _________.”
(iv) Request by written motion. If making a request by written motion, the motion must succinctly state the grounds for the request and be accompanied by a request to submit for decision and a proposed order. The motion need not be accompanied by a supporting memorandum.
(3) Timing. All requests, except those made verbally during a hearing, must be sent to the court at least seven days before the hearing unless there are exigent circumstances or the hearing was set less than seven days before the hearing date, in which case the request must be made as soon as reasonably possible.
(4) Resolution of the request. The court may rule on a request under paragraph (b)(3) without awaiting a response. The court may rule on the request in open court, by email, by minute entry, or by written order. The court will make a record of whether a request was granted or denied.
(5) Court’s accommodation of participant’s preference; factors to consider. The court will accommodate a timely request unless the court makes, on the record, a finding of good cause to order the participant to appear as originally noticed. The court may not find good cause to deny a request based unless it finds:
(i) a constitutional or statutory right that requires a particular manner of appearance or a significant possibility that such a right would be impermissibly diminished or infringed by appearing remotely;
(ii) a concern for a participant’s or witness’s safety, well-being, or specific situational needs that necessitates denying the request;
(iii) the possibility that the court may order a party, who is not already in custody, into custody;
(iv) a technological impediment that will unreasonably delay or compromise the record if the request is granted;
(v) a prior failure on the part of the requesting participant to demonstrate appropriate court decorum, including attempting to participate from a location that is not conducive to accomplishing the purpose of the hearing;
(vi) a prior failure to appear for a hearing of which the participant had notice;
(vii) an agreement of the parties;
(viii) the court’s determination that the consequential nature of a specific hearing requires all participants to appear in person or remotely; or
(ix) the incapacity of the court, including but not limited to an inability to acquire the required equipment, staff, or security, to accommodate the request to appear remotely despite duly diligent efforts to do so.
(6) Effect on other participants. The preference of one participant, and the court’s accommodation of that preference, does not:
(i) change the format of the hearing for any other participant unless otherwise ordered by the court; or
(ii) affect any other participant’s opportunity to make a timely request to appear in a different manner or the court’s consideration of that request.
Comment on Proposed Utah Rule of Civil Procedure 87
Dear Civil Procedure Advisory Committee:
This comment about proposed Civil Rule 87 is submitted by a majority of the members of the Working Interdisciplinary Network of Guardianship Stakeholders (“WINGS”), a Judicial Council Committee under CJA Rule 1-205(1)(A)(xv). We recommend two modifications, as discussed below:
1. Effect on Guardianship Signature Program.
We are concerned about the impact of proposed Civil Rule 87 on the Court’s Guardianship Signature Program (“GSP”). The GSP recruits volunteer attorneys to represent proposed protected persons in guardianship cases. Right now, it is challenging to recruit GSP volunteer attorneys, but those who volunteer report that 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.
Because of this we recommend that Rule 87(b) be amended to add the following subparagraph: “(x) the benefit of facilitating participation in hearings by pro bono or low-cost legal counsel without the added cost of travel to the courthouse;”
2. Effect on Guardianship Proceedings.
Proposed Civil Rule 87 may have an unintended effect on hearings under Utah Code §75-5-303 for appointment of a guardian for an incapacitated person. If a judge and counsel are not aware of that section, they may unknowingly violate such a statutory provision by relying solely on Rule 87. Alternatively, a judge or counsel may mistakenly conclude that Rule 87 was intended to govern the interpretation of such a statutory provision.
Section 75-5-303(5)(a) has the following provision that applies to guardianship proceedings:
(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.
Assuming that the Civil Procedure Advisory Committee does not intend that Civil Rule 87 will override such statutory provisions, thereby encouraging less liberality with virtual hearings, we recommend that Rule 87 includes a provision such as the following: “This Rule is not intended to supersede statutory provisions or caselaw that may require in-person attendance at Court proceedings nor to define the meaning of ‘in person’ in a way that restricts the Court’s ability to accommodate parties in a manner most consistent with justice and practicality.” Perhaps a Committee Note could be added that lists Utah Code §75-5-303(5)(a) and other similar statutory provisions that should be considered when applicable.
Thank you for your consideration of these comments.
Judge Keith A. Kelly, Utah 3rd District Court, Chair of WINGS
The Disability Law Center (DLC) is a 501(c)(3) designated as Utah’s Protection and Advocacy. The DLC’s mission is to enforce and advance the legal rights, opportunities, and choices of Utahns with disabilities. Our services are available free of charge statewide, regardless of income, legal status, language, or place of residence.
The DLC appreciates the opportunity to comment on proposed URCP 87. We advocate for the greatest degree of independence and self-determination possible for Utahns with disabilities. This includes representing individuals who wish to modify or challenge their guardianship.
Because guardianship necessarily involves the potentially permanent limitation or loss of a person’s fundamental freedoms or rights, it is critical they can see, hear, and question the evidence underlying a petition. Unfortunately, physically attending court can be difficult for an individual with a disability. Therefore, it needs to be as easy as possible to request the support needed to fully participate in the process, whether it be in–person or remote.
For this reason, the DLC supports the comments submitted by the Working Interdisciplinary Network of Guardianship Stakeholders. In addition, we recommend the following amendments:
1) in Subparagraph (a)(4), clarify that “other electronic means” includes by telephone;
2) to avoid confusing a change to process or procedure requested based on preference with one requested based on disability, add the following definition of “Reasonable Modification” to Paragraph (a):
A change in a policy, practice, or procedure – that is done to offer equal access and equal opportunity for a person with a disability – which does not fundamentally alter a service, program, or activity the court must provide to the public;
3) in Subparagraph (b)(8) replace “accommodations” with “reasonable modifications,” delete “communication with,” and add “,in accordance with title ii of the Americans with Disabilities Act.” after “disabilities”; and
4) concerns around the challenges of recordkeeping and possible ex parte communication with the court are real. However, a person with a disability may have difficulty communicating independently or privately in writing or electronically. Therefore, we urge the creation of a process for making a request under Subparagraph (c)(1) by telephone as well.
Getting URCP 87 correct is crucial. If counsel is waived, the court must do everything it can to facilitate a proposed protected person’s full participation in the proceedings. Additionally, the hearing may be the only chance the court has to hear from a proposed protected person, because a guardian is exempt from reporting requirements if they are a parent of an adult child with a disability.
Thank you for your time and considering our feedback. Please feel free to reach out if you have questions or would like more information.
Dear Civil Procedure Advisory Committee:
This comment about proposed Civil Rule 87 is submitted by a majority of the members of the Working Interdisciplinary Network of Guardianship Stakeholders (“WINGS”), a Judicial Council Committee under CJA Rule 1-205(1)(A)(xv). We recommend two modifications, as discussed below:
1. Effect on Guardianship Signature Program.
We are concerned about the impact of proposed Civil Rule 87 on the Court’s Guardianship Signature Program (“GSP”). The GSP recruits volunteer attorneys to represent proposed protected persons in guardianship cases. Right now, it is challenging to recruit GSP volunteer attorneys, but those who volunteer report that 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.
Because of this we recommend that Rule 87(b) be amended to add the following subparagraph: “(x) the benefit of facilitating participation in hearings by pro bono or low-cost legal counsel without the added cost of travel to the courthouse;”
2. Effect on Guardianship Proceedings.
Proposed Civil Rule 87 may have an unintended effect on hearings under Utah Code §75-5-303 for appointment of a guardian for an incapacitated person. If a judge and counsel are not aware of that section, they may unknowingly violate such a statutory provision by relying solely on Rule 87. Alternatively, a judge or counsel may mistakenly conclude that Rule 87 was intended to govern the interpretation of such a statutory provision.
Section 75-5-303(5)(a) has the following provision that applies to guardianship proceedings:
(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.
Assuming that the Civil Procedure Advisory Committee does not intend that Civil Rule 87 will override such statutory provisions, thereby encouraging less liberality with virtual hearings, we recommend that Rule 87 includes a provision such as the following: “This Rule is not intended to supersede statutory provisions or caselaw that may require in-person attendance at Court proceedings nor to define the meaning of ‘in person’ in a way that restricts the Court’s ability to accommodate parties in a manner most consistent with justice and practicality.” Perhaps a Committee Note could be added that lists Utah Code §75-5-303(5)(a) and other similar statutory provisions that should be considered when applicable.
Thank you for your consideration of these comments.
June 28 2024
Judge Keith A. Kelly, Utah 3rd D. Ct.
Chair of WINGS
The proposed Civil Rule 87 may have an unintended, negative impact on the Court Visitor Program, a program under the Administrative Office of the Courts run almost entirely through the time and effort of unpaid volunteers.
Utah Code 75-5-303(5)(a) states:
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.
During the COVID pandemic, the use of audio and video recording and the ability for allegedly incapacitated individuals to participate in hearings via WebEx allowed judges to fulfill the in-person requirements of the statute through virtual attendance. This significantly decreased the number of required Court Visitor investigations and allowed the Court Visitor Program to direct resources to other investigations related to guardianship matters.
Furthermore, Utah Code 75-5-303(5)(d) states that counsel for the person alleged to be incapacitated is not required if a series of conditions are met, including that, “no attorney from the state court’s list of attorneys who have volunteered to represent respondents in guardianship proceedings is able to provide counsel to the person within 60 days of the date of the appointment…” and “the court appoints a visitor under Subsection (4).”
Per this statute, the Court Visitor Program serves as a backup option in cases where a volunteer attorney cannot be found to represent a respondent in guardianship matters. As the number of attorneys volunteering has steadily decreased over the years, the number of Court Visitor attorney waiver requests has steadily risen. It is only because resources have been freed up through virtual hearings that the Court Visitor volunteers have been able to (barely) keep up with this demand.
Of concern is the way in which the proposed Civil Rule 87 defines in person under 2(a)(2), “In-person” means a participant will be physically present in the courtroom.” This definition is more specific than the statute and appears to remove the latitude offered in the statute that permitted virtual attendance. If it were to take effect, the Court Visitor Program would once again experience a high volume of case requests for hearing attendance investigations to comply with the statute and rule. (Pre-COVID, the Program averaged 80 such cases a year; post-COVID the program averages 10 per year.) This influx of cases would have an adverse impact on the program’s funding, budget, and volunteer availability, redirecting valuable resources away from the other vital functions the Program is charged with in order to assist in the Court’s duty to protect vulnerable individuals under guardianship.