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Judicial Rules Review Committee

                    MINUTES OF THE

JUDICIAL RULES REVIEW COMMITTEE

May 14, 1997 - 9:30 a.m. - Room 416, State Capitol


Members Present:                 Sen. Robert F. Montgomery, Chair
    Rep. John L. Valentine, Chair
    Rep. Perry L. Buckner
    Rep. Greg J. Curtis
         


Members Absent:
    Sen. L. Steven Poulton
    Sen. Robert C. Steiner

Staff Present:
    Mr. Jerry D. Howe,
     Research Analyst
    Ms. Lisa Watts Baskin,
     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 - Chair Valentine called the meeting to order at 9:37 a.m. He explained that the committee has not received its new membership for the year. This means that the committee must proceed without full membership in order to consider the rules out for public comment. Because the committee will not have a quorum, he explained that no formal motions will be taken but that a letter of informal recommendation under the chairs signature will be sent to the Judicial Council and the Utah Supreme Court. No motion was taken on the November 7, 1996 minutes due to the lack of a quorum.
    
2.    Report on Supreme Court Advisory Committees and Discussion of Proposed Modifications - Mr. Jerry D. Howe, Research Analyst, and Ms. Lisa Watts Baskin, Associate General Counsel, directed the committee to the mailing packet and addressed proposed rules and recent developments from each advisory committee.

*    Rules of Civil Procedure

    Ms. Baskin referred to the packet and identified a letter sent to Mr. Alan L. Sullivan from Senator Millie M. Peterson. The letter addressed concerns with the current forms for garnishment and continuing garnishment. Ms. Baskin said that this particular notarization requirement has not been studied by the Rules of Civil Procedure and would be reviewed at a later time.

     *     Rule 4, Process - Ms. Baskin reviewed the rule of summons and asked for clarification on the language in Section (B), "other reliable means" and Section (H), "a prepaid means of compliance in writing." Mr. Tim Shea, Administrative Office of the Courts, responded that the "other reliable means" is a broad phrase for methods of delivery other than the U.S. Postal Service. He said the intent is to permit delivery by Federal Express, UPS, and the like. He then explained "a prepaid means of compliance in writing" is intended to be a self-addressed stamped envelope.

    Recommended changes to the rule:

        Rule 4(2)(B), Rules of Civil Procedure
            Clarify that "other reliable means" refers to "other reliable means of mail" or "other reliable postal means."

        Rule 4(2)(H), Rules of Civil Procedure
            Delete the language "prepaid means" and insert "self-addressed stamped envelope" to clarify the meaning.

    These recommendations were approved by the committee by unanimous consent of those present.

     *    Rule 5, Service and filing of pleadings and other papers - Ms. Baskin asked for clarification on "directed by the court," as opposed to "ordered." Mr. Shea said this particular change was in conjunction with changes to several other rules regarding who was responsible for mailing out orders and judgements of the court.

     *     Rule 6, Time - Ms. Baskin noted that this rule makes reference to the Code of Judicial Administration 4-501. She explained that the rule was very detailed and noted that practicing lawyers refer to 4-501 for time lines. She questioned why this is located in the Code of Judicial Administration rather than the Rules of Civil Procedure. Mr. Shea said that the committee wanted to remain consistent with federal rules, and that Utah lawyers understand that Rule 4-501 establishes the time frames for filing motions even though it is in the Code of Judicial Administration.

     *     Rule 77, District courts and clerks - Ms. Baskin questioned the deletion of Section (d) Mr. Shea said it was part of the package of more clearly assigning responsibility for those who mail out the orders. He pointed out it was now covered in Rule 5, Writing the orders.

*    Criminal Procedure

    *     Ms. Baskin reported that the Criminal Procedure Advisory Committee would be meeting on June 2, 1997. She reviewed the proposed modifications to Rule 11, Pleas.



*    Appellate Procedure    

    Mr. Howe reported that the Appellate Procedure Advisory Committee met on April 29, 1997.

     *     Rule 27, Form of briefs - Mr. Howe explained that the changes to the rule were technical, moving from a page number requirement to word number requirement for certain types of briefs. The rule, he said, shortens principle briefs from 50 to 30 pages and reply briefs from 25 to 15 pages. The rule also requires color coding the cover of certain types of briefs and provides a rule on the binding, he said.

*    Juvenile Procedure

     *     Rule 29A, Visual recording of statement or testimony of child victim or witness of sexual or physical abuse - Conditions of admissibility - Mr. Howe indicated that this rule follows the same language as Rule 15.5, Criminal Procedure. The rule allows for the video recording of testimony in cases of child sexual abuse or physical abuse.
        
    *    Rule 31, Initiation of truancy proceedings - Mr. Howe said this rule allows more time to a minor's parents, guardian, or custodian, allowing at least five days before truancy proceedings are held.

     *    Rule 43, Evidence - Ms. Baskin explained that the court's problem with the rule was the waiver to a minor and the cut-off date of age 14 for when one could be the subject of a delinquent petition filed pursuant to the code.     
    
*    Professional Conduct

     *    Rule 1.14, Client under a disability - Mr. Howe said the courts have defined this rule regarding the client/attorney relationship when the client suffers from a disability. He noted that client had not been defined in the rule. After much discussion on the rule, the committee made the following recommendations:

            First, the committee expressed concern that the new comment was authored by local lawyers and rejects the ABA Model Rules Comment. The amendment to the rule which deletes "best" was apparently made to mirror the ABA Model Rule changes. The "local" comment may create inadvertent confusion or negative consequences due to its reliance on Utah cases or Utah practice in its commentary to an "ABA-wide" rule.

            Second, the terminology "client" and "legal representative" remains undefined in the Rules of Professional Conduct. In the Utah Court Rules (1997), other terms are defined at page 1123. The committee recommended that client and legal

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.

        

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