Judicial Rules Review Committee

                    MINUTES OF THE

representative be defined, if possible, to avoid confusion. For example, language reads in part: "If the client has no legal representative, the lawyer may only seek appointment of a guardian . . ." It should be made clear that the legal representative was someone other than the lawyer, such as a guardian, conservator, or trustee. This would provide a clearer meaning to the Comment. The committee conceded, however, that the definition of "client" may prove to be difficult. Nevertheless, the committee asked that an attempt be made to define both terms.

3.    Code of Judicial Administration Rules - Mr. Howe and Ms. Baskin presented an overview of proposed changes to the Code of Judicial Administration, with emphasis on the following:

     *    Rule 2-103, Open and closed Council meetings - Mr. Howe explained the rule allowed for posting in multiple places. He suggested that it may prove difficult for one to find the meeting date, time, and place if it is possible to post that information in different places for each meeting. Mr. Shea said this suggestion would be reviewed.

     *     Rule 3-201.02, Court Commissioner Conduct Committee - Ms. Baskin said that this rule provides for the recusal of a judge. She asked if it was a chair pro tem or a regular chair who would take charge of replacing the recused member? Ms. Peggy Gentles, Administrative Office of the Courts, said this had never happened but they would try to clarify the rule regarding the chair.

     *     Rule 3-306, Court interpreters - Mr. Shea said the intent of the rule change was to permit probation officers who speak Spanish to converse directly with their probationers without the use of an interpreter.

     *     Rule 4-104, Request for trial setting - This rule establishes procedure for trial dates. Ms. Baskin said this rule had a violation of the certification for readiness for trial. She noted it could be considered as subject of a sanction under Civil Procedure Rule 11. She questioned if the Rules of Civil Procedure should have a cross reference from Rule 4-104. Chair Valentine questioned why such a heavy sanction was imposed by the rule. Ms. Gentles, said this rule was proposed by a judge who was concerned that the certification of readiness for trial requirement was routinely ignored. The intent of the rule is to be clear that the violation of readiness for trial could be the subject of a Rule 11 sanction.

     *     Rule 4-106, This rule allows for the court to do electronic conferencing in lieu of personal appearances in appropriate cases. Ms. Baskin said the new language was too broad and unclear. The committee expressed concern that the rule was too broad in

permitting the judge, at the judge's discretion (and in undefined appropriate cases), to conduct "any hearing" using telephone or video conferencing. Additionally, the language in Subsection (2) was unclear addressing the procedures for presumably "legal" proceedings and requiring that they be conducted as any other hearing.

    These recommendations were approved by the committee by unanimous consent of those present.
    
     *    Rule 4-202.02, Records classification - Ms. Baskin asked the courts to provide the committee with an example of a court record that would be closed temporarily which was traditionally opened to the public until the judge determines that it is appropriate to release the record. Mr. Shea replied that a transcript of a preliminary hearing is an example. The rule change was designed to reflect case law and that privacy concerns be retained, he said. Ms. Baskin said that in terms of drafting, she suggested rather than "permanently if the hearing is not traditionally open," she recommended, "temporally if the meeting is traditionally open."
    
     *    Rule 4-510, Alternative dispute resolution - Ms. Baskin expressed concern that the new language may benefit the courts rather than the parties. Mr. Richard Schwermer, Administrative Office of the Courts, said the intent for that provision was to not let one party sabotage the trial process by failing to comply with one rule requiring a mediation option.

    Ms. Baskin said more than half of the rules have been identified as emergency rules. She explained that the Judicial Council has the authority to pass emergency rules which enables the rule to become effective immediately. She said the committee should closely monitor all emergency rules in the Administrative Rule making process.

     *    Rule 4-401, Media in the courtroom - She informed the committee that this rule was one of those emergency rules and was studied at great length. Ms. Baskin had contacted members of the press to make sure they were aware of the rule such as the Associated Press, Deseret News, the Tribune, and their attorney Mr. Jeff Hunt. Mr. Hunt said he was aware of the change, had worked with the courts, and was comfortable with the rule.

    Chair Valentine acknowledged that emergency rule making authority ought to be scrutinized by the committee. He added that to adopt an emergency rule five years ago and still have it in place is troubling.

    Mr. Shea responded that the emergency rules must be published for comment. Although the rule is in effect during the comment period, many emergency rules have been changed as a

result of comments. The intent of the emergency rule process is to have a rule in effect during the comment period.

    Chair Valentine expressed concern that the Judicial Council can elect to keep the rule effective by emergency status. He referred the committee to Rule 2-205, emergency rulemaking procedure which states: "The Council has the discretion to redistribute the rule for public comment." Ms. Baskin reviewed the rule and said once it was an emergency rule it becomes final action with changes because of comments. She suggested language to state that this is no longer an emergency rule. Mr. Shea said the intent was not to act in a hurry and then have that rule in effect in perpetuity. The comment period does follow a matter of course and comments are considered, he said.

*    Judicial Conduct

    Ms. Baskin said the Judicial Conduct mirrors Rule 4-401, Media in the courtroom. No other information was discussed in this area.

*    Judicial Nominating Procedures

    *APPENDIX A, Manual of Procedures for Judicial Nominating Commissions - Mr. Howe reported that this was a cooperative effort between the governor and the Judicial Council concerning the number of names nominated for judicial appointment. He said Sen. Craig Taylor drafted two bills during the last session that facilitated this compromise. The idea is to increase the pool of qualified candidates in the Third District by submitting five names to the governor rather than three.

4.    Adjournment

    MOTION: Rep. Curtis moved to adjourn the meeting at 11:03 a.m. The motion passed unanimously.