Judicial Rules Review Committee
MINUTES OF THE
Members Present: Sen. Robert F. Montgomery, Chair
Rep. John L. Valentine, Chair
Rep. Greg J. Curtis
Rep. Perry L. Buckner
Members Absent:
Sen. L. Steven Poulton
Sen. Robert C. Steiner
Staff Present:
Mr. Jerry D. Howe,
Research Analyst
Ms. Susan Creager Allred,
Associate General Counsel
Ms. Glenda S. Whitney,
Secretary
Note: A list of others present and a copy of materials distributed are on file in the Office of Legislative Research and General Counsel.
1. Call to Order - Sen. Robert F. Montgomery called the meeting to order at 2:27 p.m. He explained that a quorum was not present so no formal motions will be taken. Additionally, the minutes of the November 7, 1996 and May 14, 1997 meetings were not formally approved.
Mr. Jerry Howe presented an overview on the rules that went into effect on November 1, 1997.
* Code of Judicial Administration - Effective date of November 1, 1997
* Rule 2-103, Open and closed Council meetings - Mr. Howe reiterated that it may prove difficult for one to find the meeting date, time, and place if the information is posted in different places for each meeting. He noted this rule is currently in effect.
* Rule 3-201.02, Court Commissioner Conduct Committee - Mr. Howe suggested that if a complaint is not dismissed, then one would assume the complaint would be investigated. But the rule does not require the Council to investigate a complaint that it does not dismiss. Additionally, the rule allows the commissioner against whom the complaint is filed the right to attend meetings and testify. But the rule provides that no person is entitled to attend the Council meeting at which the complaint is reviewed. This presumably precludes the complainant from attending any of these meetings, he said.
* Rule 4-201, Record of proceedings - Mr. Howe questioned whether a video recording system requires judges to be recorded. He said the language was unclear. Mr. Shea explained that only the jury box is protected from the camera's view.
Rep. Valentine asked whether judges can request not to be on camera with the rotation
program that the clerk chooses. Mr. Shea was asked to address this question and report back.
2. Report on Supreme Court Advisory Committees and Discussion of Proposed Modifications - Mr. Jerry D. Howe, Research Analyst, and Ms. Susan Creager Allred, Associate General Counsel, directed the committee to the mailing packet and addressed
proposed rules and recent development from each advisory committee.
* Rules of Civil Procedure
* Rule 10, Form of pleadings and other papers - Ms. Allred explained that this rule change was procedural, requiring a specified format for a cover sheet on certain
pleadings.
* Rule 17, Parties plaintiff and defendant - Ms. Allred said the rule change corresponds with a new statute which requires parties to be referred to as "petitioner"
and "respondent."
* Rule 60, Relief from judgment or order - Ms. Allred explained that the proposed amendment to the rule was on the time limit for filing a motion under Rule 60(b) from
three months to one year. It removes Rule 60(b)(4) due to ambiguity and possible
conflict with rules permitting service by means other than personal service. The
amendment is consistent with Rule 60, Federal Rules of Civil Procedure.
Rep. Valentine questioned whether consistency with the federal rule was the only reason
for the rule change. He indicated that there has always been an ambiguity on these cases. He
wanted to know whether the committee considered preventing one from being covered by both
rules. Mr. Shea said this issue had not been discussed.
* Rule 64C, Attachment - Ms. Allred said this rule gives the court more flexibility in establishing the amount of the undertaking to provide adequate security to the
defendant for all damages and costs. She noted that the $50.00 is deleted but the
"double" language is still intact. She questioned whether a different standard is
justifiable. Mr. Shea said that it is a struggle to strike the proper balance. If the amount
claimed is relatively small, yet the amount attached is relatively large, then there will
always be a problem in that scenario. Rep. Curtis responded that it should be
consistent. Rep. Valentine said that he was not convinced that this change was in the
best interest of Utah residents.
* Appendix of Forms - Ms. Allred referred the committee to the Appendix of Forms in the packet, indicating these forms are subject to public comment, which expires
November 24, 1997.
Form 3, Complaint - Promissory Note - Rep. Valentine expressed concern with how paragraph (6)(a) provides for pre judgment interest until the date of judgement. He said
in a contract case, the contract interest rate also applies after judgement. He further
explained this should also be recognized in the form for the post judgement interest.
Form 5, Complaint - Mortgage Foreclosure (Replacing "Complaint for Goods Sold and Delivered") - Rep. Valentine said this rule requires plaintiffs to serve defendants with a notice of default, a summons or complaint, as required by law.
Curiously, he said, there is no such law in statute.
* Rules of Criminal Procedure
* Rule 8, Appointment of counsel - Ms. Allred said this new language deals with appeals on death sentences and qualification for counsel in post conviction
proceedings in capital cases.
Chair Montgomery expressed concern that it may be tough for some communities with
few attorneys to meet these qualifications for counsel.
Ms. Gentles noted that this rule was an emergency rule and went into effect on June 1,
1997 and is out for comment.
* Rule 12, Motions - Ms. Allred said the language in this rule changes from "motions concerning the admissibility of evidence" to "motions to suppress evidence." She also
referred to line 32, noting that "institution" was not clearly defined.
* Rule 26, Appeals - Ms. Allred said this rule adds provisions for appeal by the prosecution from dismissal of a felony information following a refusal to bind
defendants over for trial and from non final orders dismissing part of the felony
information if the appellate court decides that appeal would be in the interest of justice.
On line 55, she questioned if "final order" should be "final judgement " and whether it
should be referred to under subsection (2) or (3). She also noted that the language may
be too broad for a prosecutor to meet the standard.
* Rules of Appellate Procedure
* Rule 9, Docketing statement - Mr. Howe explained that the rule change adds motions under Utah Rules of Criminal Procedure 24 and 26 to Rule 9(c)(1). He said it deals
with briefs and the filing service of briefs.
* Rule 11, The record of appeal - Mr. Howe said this language requires clerks to
number only the cover pages of depositions and transcripts.
* Rule 23B, Motion to remand for determination of ineffective assistance of counsel - Mr. Howe explained that the change adds requirements for motions requesting findings of fact from the trial court on a claim of ineffective assistance of counsel. The
rule also requires identification of factual issues to be addressed on remand.
Rep. Curtis expressed concern with the language "a non speculative allegation of facts." .
* Rule 24, Briefs - Mr. Howe said this rule indicates how references to depositions and transcripts should be made.
* Rules of Juvenile Procedure
* Rule 7, Warrants for immediate custody of minors; grounds; execution of warrants; search warrants - Mr. Howe said this rule allows telephonic issuance of warrants during non-business hours or under exigent circumstances. The committee questioned whether it was wise to allow telephonic issuance of warrants during non-
business hours or under exigent circumstances. Ms. Allred said that the cross reference
to Sections 78-3a-507 and 78-3a-508 is inaccurate. Ms. Gentles agreed to follow up on
these concerns.
* Code of Judicial Administration
* Rule 1-205, Standing and ad hoc committees - Mr. Howe explained that the new language adds a justice court judge to the Judicial Council's Standing Committee on
information, automation, and records.
* Rule 3-104, Presiding judges - Mr. Howe said the rule establishes a presumption that the presiding judge's term of office is two years. The rule allows, however, for a
majority of judges of the court to establish a one year term of office.
* Rule 3-111, Performance evaluation for certification of judges and
commissioners - Mr. Shea said in January of general election years, the council makes certification decisions. If the judge meets the established standards, then the judge is
certified. If the judge fails any standard, then, unless the judge is able to convince the
council that he should be certified, he is not certified.
Mr. Howe discussed the issue of survey questions with regard to a mitigating or aggravating factors. He suggested that attorneys should know that this is not generally used
except in appeals.
Mr. Howe briefed the committee on the new language that allows a judge or commissioner to exclude attorneys from the attorney survey respondent pool if the attorney has
filed a complaint with the Judicial Conduct Commission or the Commissioner Conduct
Committee. He also pointed out that this changes the cases under advisement standard for
appellate judges from 180 days to six months.
Rep. Curtis expressed concern that a judge can eliminate a lawyer who filed complaint
against the judge even if the complaint had filed several years previously.
Rep. Buckner asked if there is a committee that reviews the list of exclusions to verify
whether the excluded lawyer has appeared before the judge within the last two years. Mr. Shea
said the courts do not have the ability to check or verify the reason that a judge has requested an
exclusion.
Ms. Gentles reported that this rule was approved by the Judicial Council as an emergency
rule effective April 28, and July 2, 1997.
* Rule 3-414, Court security - Mr. Howe explained that this rule implements recommendations of the Court Security Task Force. The rule provides: 1) security
plans for justice courts; 2) perimeter security for courts of record; and 3) responsibility
for appointment and supervision of bailiffs. He said the rule attempts to implement
Senate Bill 132 by permitting a judge with a certificate issued by the Commissioner of
Public Safety to carry a firearm in a courthouse. The rule also establishes minimum re-
qualification requirements for judges, he said.
Mr. Howe suggested that it might be more clear to state persons in custody may only have
contact with defense counsel, rather than the current language "prevent persons in custody, from
having physical contact with family, friends, or spectators." Rep. Buckner also explained that law
enforcement officers do not maintain firearms under a three point-system of restraint. Rep. Curtis
expressed concern that lawyers with a concealed weapons permit would not be allowed to carry
the weapon under this rule. Mr. Shea said these issues of concern will be reviewed by the
advisory committee.
* Rule 4-201, Record of proceedings - Mr. Howe noted this rule established that an audio recording system may be used to maintain the official verbatim record in small
claims cases. It requires one original recording to be made when an audio recording
system is used.
* Rule 4-510, Alternative dispute resolution - Mr. Howe said the alternative dispute pilot program has been moved from the second and fifth districts to the second, third,
and fourth districts. The rule also amends notice requirements when parties are
involved in an alternative dispute program.
Rep. Valentine questioned whether additional costs would be associated with changing the districts involved in this program. Mr. Shea explained that he did not know if this change
would cost more, but if it does, the increased costs would come from existing budgets.
* Rule 4-608, Trials de novo of Justice Court proceedings in criminal cases ; and Rule4-803, Trials de novo in small claims cases - Mr. Howe said this rule changes the venue provision for the trial de novo of justice court criminal proceedings to the
district court nearest the justice court in which the original proceedings were heard.
Ms. Gentles said the advisory committee intends to clarify that this should be in the
nearest district court, in the same county, and to also apply in small claims courts.
* Rule 4-906, Guardian ad litem program - This rule change reflects statutory amendments.
* Rule 4-910, Sanctions for denial of child visitation - Mr. Howe said this pilot program is over so the rule has been deleted.
* Rule 4-913, Divorce decree upon affidavit - This rule change reflects amendments in statute which requires parties to be referred to as "petitioner" and "respondent."
* Rule 9-101, Board of Justice Court Judges - Mr. Howe said this rule increases the number of justice court judges on the Judicial Council from two to three.
Chair Montgomery requested that Mr. Shea and Ms. Gentles represent these recommendations to the proper advisory committees.
3. Adjournment
MOTION: Sen. Valentine moved to adjourn the meeting at 4:07 p.m. The motion passed unanimously.
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