Some Utah lawmakers want public audio livestreams of most court proceedings in the state.
That proposal is one of several in HB540, a bill supporters say would make the judicial branch more transparent. But critics, including the Utah State Bar, worry about privacy and separation of powers. This bill is one of several proposed changes to the judiciary that the state bar has opposed this session.
Republican Rep. Logan Monson’s bill narrowly made it out of its first stop in the House Judiciary Committee. Monson’s bill has the support of top House Republican, Speaker Mike Schultz, who has said he thinks the judicial branch lacks transparency.
The bill focuses on judicial records, creates a “cooling off” period for judges leaving their positions and requires judges to make financial disclosures.
Utahns can already access public court documents and the recordings of hearings, but it's not free. Users are charged for every search they make and document they download, the cost of which went up last year. An audio recording costs at least $10 and requires a formal request, which can take days to process. Some court hearings are already livestreamed, but it depends on the case, often high-profile ones, and individuals sometimes have to email the judge’s staff to get the livestream link.
Under Monson’s bill, the court would livestream audio of all public court proceedings. Afterward, the recording would be available for free on the court’s website. For documents, the first 50 searches and 50 downloads each month would be free. Monson also wants users to be able to search the court’s system by an individual judge’s name, a function it doesn’t currently have.
“It makes it very difficult for members of the public to learn anything about how judges on their ballot are ruling,” Monson said of judicial retention elections.
Another sticking point for Monson is the court’s website, which he contrasted with the Legislature's. He said Utahns can easily and freely view any public meeting of the Legislature and see how lawmakers voted on every motion.
“The people of Utah deserve transparency and accountability from all branches of government,” Monson said.
There’s an important difference, however, between legislative debates and court hearings, Utah State Bar President Kim Cordova told the committee.
“When people come to court, it's usually one of the biggest events in their life,” Cordova said. “These are vulnerable people. This is a vulnerable time in their lives, and for it to be livestreamed, especially when we're dealing with very serious and private issues, then that is a concern for lawyers in the state.”
A hearing, Cordova said, could be about divorce, child custody or employment issues. She worries people may not come forward or be candid if they know what they say will be livestreamed. Transparency is essential, she said, but should not come at the expense of fairness.
As the bill is currently written, only the justice court, which deals with small claims and low-level misdemeanors, is exempt from the audiostream requirement in Monson’s bill. Juvenile court hearings would also be streamed. Republican Rep. Tyler Clancy said he had concerns about the privacy of children, victims and witnesses of crimes. Monson said he was working on a substitute bill to address those issues, but it wasn’t public when the committee voted to advance the bill.
Steve Burton with the Utah Defense Attorney Association said when his clients are accused of a crime, they often sit through multiple hearings in which allegations are discussed, but the defendant doesn’t get to respond until trial. He worried that livestreaming could result in people who don’t understand the legal process publishing those allegations as the full story.
“So I'm very concerned that there may be a use of that information in inappropriate and incorrect ways,” Burton told the committee.
The other piece of Monson’s bill, the “cooling-off period,” deals with what judges can do once they leave their positions on the bench. If a law firm is, or plans to, represent someone who is suing the state, that firm can’t hire a former judge within two years of their departure.
“We have a little bit of a problem with justices who retire from the bench and then immediately go to law firms that are currently involved in some of the state's biggest lawsuits,” Monson said.
He said it was a conflict of interest.
According to the Deseret News, there are four former Utah Supreme Court justices who have recent ties to law firms working on legal cases against the state.
But the state bar said that the Utah State Court’s Rules of Professional Conduct already “prohibits former judges from participating in matters in which they were personally and substantially involved, and judicial ethics rules require recusal when impartiality could reasonably be questioned.” The bar continued that the bill is inconsistent, since it limits who can represent challenges against the state, but not who represents the state.
“These provisions could discourage qualified attorneys from accepting judicial appointments and interfere with employment opportunities without improving fairness,” the state bar said.
Under the Utah Constitution, the state supreme court regulates the practice of law in Utah. That’s why the state bar thinks this bill, as currently written, would face constitutional challenges for stepping on that authority.
Republican Rep. Nelson Abbott agreed with Monson’s concerns about the judiciary, but said he thought the courts should be the ones to work through them.
While the committee initially voted to hold the bill so it could be substituted before going to the full House, Republican Rep. Jason Thompson later asked that they reconsider moving it forward. Thompson said he was confident Monson would be able to get it where it needed to be, and time was running short. Enough of Thompson’s colleagues agreed, and now the bill will go before the full House.
