Judicial Rules Review Committee

                    MINUTES OF THE

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.