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Judiciary Interim Committee

MINUTES OF THE
JUDICIARY INTERIM COMMITTEE

May 20, 1998 - 9:00 a.m. - Room 405 State Capitol


Members Present:
    Sen. Craig L. Taylor, Chair     
    Rep. A. Lamont Tyler, Chair
    Sen. David L. Buhler
    Sen. Lyle W. Hillyard
    Sen. Robert C. Steiner
    Rep. Patrice M. Arent
    Rep. John B. Arrington
    Rep. Afton B. Bradshaw
    Rep. Katherine M. Bryson
    Rep. J. W. "Bill" Hickman
    Rep. Keele Johnson
    Rep. Tammy J. Rowan
    Rep. Martin R. Stephens
    Rep. Glenn L. Way
    

Members Absent:
    Sen. Lane Beattie

Members Excused:
    Rep. Loretta Baca
    Rep. Swen C. Nielsen

Staff Present:
    Mr. Jerry D. Howe,
     Research Analyst
    Ms. Esther Chelsea-McCarty,
     Associate General Counsel
    Ms. Glenda S. Whitney,
     Secretary

     Note:    A list of others present and a copy of materials distributed in the meeting are on file in the         Office of Legislative Research and General Counsel.

1.    Call to Order and Committee Business - Chair Taylor called the meeting to order at 9:12 a.m.

     MOTION: Rep. Arrington moved to approve the minutes of the April 22, 1998 meeting. The motion passed unanimously with Sen. Steiner, Rep. Hickman, and Rep. Johnson absent for the vote.

2.    Court Interviews with Children - Rep. Afton B. Bradshaw distributed suggested language to amend the authority for a court to interview children. She said this issue was brought to her attention by a constituent, Mary Ann Strong, who had an experience in Judge Rigtrup's court on a child custody case. The committee discussed the policy of allowing judges to conduct private and confidential interviews with children in visitation and custody disputes.

    Retired Judge Kenneth Rigtrup, Third District Court, indicated that he had made it a regular practice to interview children involved in custody and visitation cases. He explained that he once received a private reprimand for violating the cannons of ethics when he did not give counsel or the parties notice of an interview with a child. He explained that Utah Code Ann.30-3- 10(1) provides that "The court may inquire of the children and take into consideration the children's desires regarding the future custody, but the expressed desires are not controlling and the court may determine the children's custody otherwise." The statute, he explained, is silent with respect to a notice requirement. Hence this proposal, expressly authorizing interviews without notice to either counsel or the parties.

    Rep. Stephens questioned whether it would be possible to record the interviews while maintaining the recordings as confidential. Judge Rigtrup responded that it would be beneficial to record the interviews.

    Sen. Hillyard expressed an interest in how judges may use this authority.

    Ms. Mary Ann Matheson Strong explained how Judge Rigtrup interviewed her step children and reported that the children's best interests were served because of the interview.

    Ms. Kellie Williams, Family Law Section of the Utah State Bar, reiterated the notion that not all judges will implement this policy uniformly. She acknowledged that some judges have exceptional skills with children but others, she said, could not conduct interviews as well. Furthermore, it was argued that if judges use confidential information obtained from a child to make legal decisions concerning the case, then neither party has the ability to challenge the validity of that information on appeal. Finally, she expressed concern that due process may be violated when litigants are denied an opportunity to participate in the proceedings. The primary issue is not whether to allow judges to interview children, she said, the legislature has already allowed judges to conduct such interviews. The issue is whether judges should be allowed the authority to conduct those interviews in private without notice to parents or counsel.

    Rep. Hickman spoke against a notice requirement because notice gives attorneys opportunities to coach children before meeting with the judge. Ms. Williams explained that children are unpredictable. No good attorney, she said, would risk coaching a child's testimony for a interview with a judge for fear the child would inadvertently or intentionally disclose that he or she had been told what to say.

     MOTION: Rep. Stephens moved that the Judiciary Interim Committee support the concept of allowing judges to interview children in private at his/her discretion and that the Family Law Section, Judge Rigtrup, and Rep. Bradshaw work on a draft for the commission to review at a later date. The motion passed with Sen. Steiner voting in opposition. Rep. Hickman was absent for the vote.

3.    Discussion of Reliable Hearsay

    Sen. Lyle Hillyard, referred the committee to Article I, Section 12 of the Utah Constitution which provides for the rights of an accused person. He explained that information obtained at a preliminary hearing is used to decided whether enough evidence exists to hold a defendant over for trial. During these hearings it is common for victims to testify concerning the elements of a crime. Often this testimony can be painful, he said, especially under strict cross examination which victimizes for a second time people who have already been victimized by violent crime. The current use of reliable hearsay was intended to allow other people

knowledgeable of the crime to testify at the preliminary hearing. Under current practice, he said, reliable hearsay is too broad.

    Mr. Paul Boyden, Statewide Association Public Attorneys, Mr. Mark Moffet, Criminal Defense Lawyer, and Mr. Richard Schwermer, Administrative Office of the Courts, said that they are working with victim's groups to identify a legally binding definition of reliable hearsay to be codified in either statute or judicial rule. Sen. Hillyard said that legislation will be drafted to address these concerns and will be brought back to this committee at a future meeting.

4.    Judicial Nominating Procedures -

    Mr. Jerry Howe, Research Analyst, distributed a handout, "Manual of Procedures for Judicial Nominating Commissions." He presented a history and explained that Article VIII, Section 8 of the Utah Constitution requires the Legislature to provide for the composition and procedures of the Judicial Nominating Commissions. Sections 20A-12-102 and 20A-12-103 of the Utah Code provide for the nomination and selection of judges. He explained that these sections of the code will be repealed July 1, 1999 unless the Legislature extends or repeals the sunset date.

    Mr. Richard Schwermer, Administration of the Courts, said the Judiciary's interest is with the merit selection to ensure a qualified judiciary. He spoke in support of keeping the legislation in place and extend the Sunset.

    Mr. Gary Doxey, Governor's General Counsel, reiterated the Judiciary's concern for merit selection. A qualified judiciary is invaluable to the state, he said. He explained that overall the governor has been pleased with the process for judicial appointment although he felt uncomfortable with the three nominees on occasion. He said the Governor is willing to give the new voting procedures a try and recommended extending the sunset date.

    Mr. Dan Becker, Administrative Office of the Courts, said the merit selection is most important to the judiciary and supported extending the Sunset.

    MOTION: Sen. Buhler moved that staff draft legislation to extend the Sunset date on the Judicial Nominating Procedures to 2002. The motion passed unanimously with Rep. Bradshaw, Rep. Hickman, Rep. Rowan, and Rep. Stephens absent for the vote.

    Chair Taylor asked staff to inform the Government Operations Committee on the actions of the committee.

    MOTION: Rep. Tyler moved to adjourn the meeting at 11:56 a.m. The motion passed unanimously.

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