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Judiciary Interim Committee

MINUTES OF THE
JUDICIARY INTERIM COMMITTEE

July 15, 1998 - 10:00 a.m. - Room 405 State Capitol


Members Present:
    Rep. A. Lamont Tyler, Chair
    Sen. David L. Buhler    
    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. Glenn L. Way
    

Members Absent:
    Sen. Craig L. Taylor, Chair
    Sen. Lane Beattie
    Sen. Lyle W. Hillyard
    Sen. Robert C. Steiner
    Rep. Patrice M. Arent
    Rep. Loretta Baca
    Rep. Swen C. Nielsen
    Rep. Martin R. Stephens

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 Tyler called the meeting to order at 10:12 a.m. No motion was taken on the June 17, 1998 minutes due to lack of a quorum .

2.    Report - Pilot Program for Expedited Visitation Enforcement

    Mr. Richard Schwermer, Administrative Office of the Courts, reviewed the Alternative Dispute Resolution (ADR) program which is administered by the courts. He explained that four years ago the only ADR program was a visitation pilot program in the fourth judicial district. Currently, he said, the court administers seven ADR programs, including appellate mediation, civil mediation, and juvenile mediation programs. Today, he said, the court has been asked to report on its expedited visitation enforcement program that was sponsored by Senator Millie Peterson and enacted during the 1997 General Session.

    Ms. Heidi Nestel, Coordinator for the Visitation Mediation Program, Administrative Office of the Courts, distributed copies of a report titled "Utah's Third District Pilot Visitation Mediation Program." She explained that this program was developed on the premise that children's best interests are served when they can have a relationship with both parents. In addition to mediation services, the program offers a variety of visitation services, including: supervised visitation, neutral drop-off and pick-up sites, counseling, educational classes, and six month follow-up by the program coordinator.

    Ms. Nestel said 82 cases have been referred to the program since January 1, 1998. Of those cases, 44 have been successfully resolved in mediation. She explained that mediation provides a more long term and permanent solution to visitation disputes because the parties participate in the solution.

    Rep. Rowan asked what the program costs the participants. Ms. Nestel reported mediators are paid $75 an hour for mediation services and that the fee is split by the parties. The fee is established by the court and subsidies are available for low income participants, she said.

3.    Privatization of Social Security Number

    Chair Tyler explained that he has met with representatives from the banking industry and credit card companies to discuss concerns of allowing individuals to be identified by a number other than their social security number. Chair Tyler suggested that any legislation on this issue should either exempt credit checks or simply criminalize the stealing of an identity with a sufficient penalty.

    Rep. Rowan informed the committee of a federal executive order requested by the U.S. Department of Transportation to require, by October 1, 2000, that all state driver's licenses must contain the individuals social security number. The idea, she said, was that the drivers license would include a magnetic strip containing information concerning the person's identification. She explained that a personal identification of this type could be used to determine who could buy a gun, get a job, board a plane, vote, cash a check, open a bank account, purchase insurance, receive federal benefits, obtain a loan, or receive medical services.

4.    Discussion of Reliable Hearsay

    Mr. Paul Boyden, Prosecutors Association, distributed handouts "Proposed Utah Rule of Evidence 1101 and 1102 Hearsay in Preliminary Examinations," and "False Statement at Preliminary Examination." He reviewed the draft legislation and explained the proposed changes. He expressed concern that judges throughout the state allow reliable hearsay on very different standards .

    Professor Paul G. Cassell, University of Utah College of Law, distributed written testimony supporting the "Use of Hearsay at Preliminary Hearings" and explained that excluding hearsay from preliminary hearings leads to unnecessary traumatization and unnecessary expense during the preliminary hearing process. He said that all federal courts and most state courts readily admit hearsay at preliminary hearings. Utah is the clear minority on this issue, he said.

    Rep. Bradshaw suggested that someone from the defense bar testify on this issue.

    Mr. Reed Richards, Attorney Generals Office, said judicial decisions are inconsistent on the use of reliable hearsay. He explained that either a judicial rule or a statute could bring more consistency to this area of the law.

     Sen. Buhler asked how soon a judicial rule could be in place. Mr. Schwermer responded that once a rule is reviewed by the Supreme Court it can be adopted immediately. Sen. Buhler explained that if a rule is not adopted by mid January, then the Legislature may need to draft a statute.

5.    Other Business

    Judicial Conduct Commission - Mr. Jerry Howe distributed In Re Young, 347 Utah Adv. Rep. 26 (1998), a recent decision by Supreme Court concerning legislators serving on the Judicial Conduct Commission. He explained that the Judiciary Interim Committee will need to consider a new statute concerning membership on the Judicial Conduct Committee because legislators may no longer serve on the commission. He explained that there had been some discussion as to whether a special session was needed to re-establish the membership on the conduct commission but that was unlikely. He admonished the committee to study the opinion, to think of how it would recommend recasting the membership of the Judicial Conduct Commission, and explained that the issue of separation of powers and legislative eligibility may be appropriate for future discussion.

    Sen. Buhler reminded the committee of his motion at a previous meeting to extend the sunset date of judicial nominating procedures. Perhaps, he said, since the legislature has lost its voice on judicial conduct that it may desire to establish strict judicial nominating procedures in statute.

    Chair Tyler said that staff will present more information to the committee concerning the implications of In Re Young during the October or November meeting.

6.    Adjournment

    Chair Tyler adjourned the meeting at 11:35 a..m.

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