Formation of Task Force
The Judicial Council formed this task force in May 1992 at the request of the juvenile court, which had been left unaffected by the consolidation of the district and the circuit courts.(1)
After passage of the Court Consolidation Act but before that law became effective, the juvenile court requested that the Judicial Council study the future organization and jurisdiction of the juvenile court. The Judicial Council established this task force to consider the question, to develop recommendations, and to draft legislation and rules to implement those recommendations.(2)
The study of the organization and jurisdiction of the juvenile court and the eventual integration of the juvenile court with the district court was also recommended by the final report of the Commission on Justice in the Twenty-first Century: "A long-term goal of court organization should be the full integration of juvenile court jurisdiction with the district court...."(3)
The Commission on Justice in the Twenty-first Century attached several conditions to this integration of the two trial courts which the task force has integrated into its recommendations.(4)
A. Models Considered
The task force recommends against the complete unification of juvenile and district court without differentiation of case types. Although over specialization can weaken the judiciary, debate among task force members showed a strong commitment to the strengths that specialization can bring to family law cases.
The task force next considered remaking the juvenile court into a department within the district court without significant change in its jurisdiction, organization, or administration. The task force solicited advice from national experts, the district and juvenile courts, the Family Law Section of the Utah State Bar, and others.
The task force recommends against integrating the juvenile court as a department of the district court. Creating a juvenile department within the district court would produce, at best, marginal benefits at significant cost caused by the disruption attendant upon such a change.
At this point the task force began its study of a family court, which the task force defined to include both a separate court of independent jurisdiction and a family department of the district court. Cognizant of the difficult transition in the consolidation of the district and circuit courts, the task force distributed a brief survey to all judges and court commissioners of the courts of record. The rate of response for each court level and overall was above 70%. Some court levels approached 100% rate of response. Of those responding, 91% favored consideration of a family court or a family department.(5)
The task force did not interpret this favorable response as support for a family court, the nature of the court having been only briefly described in the survey, but as support for continuing the study even in the face of the continuing effort to consolidate the district and circuit courts.
Before embarking on the study of a family court, the task force asked the Judicial Council to expand its membership to include members of the public, a representative of the Division of Family Services, more domestic practitioners and juvenile prosecutors, and a representative of the Utah State Bar Commission.
The task force divided the complex issues of a family court into six primary topics: jurisdiction; programs and services; procedures; organization and operations; transition; and finance.
For reasons developed more fully in the report, the task force recommends the formation of a family department within the district court. The case types to be assigned to the family department are specified in detail in the section entitled "Cases Assigned to the Family Department" beginning on page 33.
B. Input Process
Over the course of its study, the task force invited representatives of many public agencies and private and community interest groups to offer their perspective on family law issues. The groups providing testimony to the task force included:
- Department of Mental Health
- Division of Family Services
- Division of Youth Corrections
- Family Law Section of the Utah State Bar
- Needs of Children Committee of the Utah State Bar
- Salt Lake County Attorney
- Supreme Court Advisory Committee on Rules of Juvenile Procedure
- Task Force on Children and Youth at Risk
- Utah Children
- Utah Commission on Criminal and Juvenile Justice
The meetings of the task force were open to the public in compliance with the Utah Open and Public Meetings Act. The task force provided interim reports to the Judiciary Interim Committee of the Utah State Legislature, the Utah Commission on Criminal and Juvenile Justice, Utah Judicial Council, the Boards of Judges, the Utah State Bar Commission, and other interested groups.
After developing preliminary recommendations and presenting them to the Judicial Council and the Utah State Bar Commission, the task force conducted a series of special briefings of the Boards of Judges, the judges and staff of most judicial districts, representatives of affiliated agencies, public interest groups, and several public hearings. The task force reconvened at the close of these briefings and public hearings to assimilate into its final report amendments resulting from comments received.
Public hearings included:
- State Bar Annual Conference, July 1994
- First and Second Judicial Districts, Ogden
- Third Judicial District, Salt Lake City
- Fourth and Eighth Judicial Districts, Provo
- Fifth, Sixth, and Seventh Judicial Districts, Richfield
Special briefings included:
- Annual Judicial Conference
- Utah Judicial Council
- Board of District and Circuit Court Judges Joint Meeting
- Board of Juvenile Court Judges
- Board of Senior Judges
- Second District District and Juvenile Judges
- Third District Judges
- Third District Juvenile Judges and Staff
- Fourth District District and Juvenile Judges and Staff
- Sixth District District and Juvenile Judges and Staff
- Court Commissioner Executive Committee
- Trial Court Executives
- Utah State Bar Board of Bar Commissioners
- Utah State Bar Courts and Judges Committee
- Utah State Bar Family Law Section
- Davis County Bar Association
- Justice for Children
These public hearings and briefings resulted in a number of comments for consideration by the task force.(6)
For the most part, the comments pertained to matters previously debated by the task force rather than to new issues. The task force amended its report to include recommendations on some of the new issues.
The comments regarding previously debated questions raise many substantial issues, but upon further consideration, the task force concludes that, with two exceptions, the recommendations in the preliminary report should stand. The debate among task force members and the observations made at the public hearings and briefings show that these are issues upon which reasonable people disagree. The task force recommendations strike a reasonable balance among many competing interests.
A. Modifications of Preliminary Recommendations
1. Effective Date
The preliminary report of the task force recommended that legislation implementing a family department be delayed until at least one year after the effective date of the completion of the consolidation of the district and circuit courts. Because of the possibility that court consolidation will occur through attrition in circuit court judges rather than on a date certain by legislative mandate, the task force has removed the link between court consolidation and implementation of the family department. The impact of this change is to leave to the Judicial Council the determination of when to seek legislation implementing the family department.
2. Assignment of Judicial Applicants to the Family Department
The preliminary report of the task force recommended that incumbent judges of the district, circuit, and juvenile courts be allowed to volunteer for appointment to the family department, but that they not be assigned involuntarily to that department. The task force does not change this recommendation. However, the preliminary report had no recommendation regarding the impact of the formation of the family department upon judicial applicants appointed in the interim period between the publication of the final report and implementing legislation.
At the suggestion of the Board of Commissioners of the Utah State Bar, the task force recommends that applicants to vacancies occurring during the interim period between the publication of this final report and implementing legislation be notified in writing of the possibility of the formation of a family department and of the possibility of their being permanently assigned to that department.
If the final report and recommendations are adopted by the Judicial Council and upon the request of the Judicial Council, the task force, or a subcommittee of it, has committed to remain organized for the purpose of debating any transition issues not anticipated and discussed in the report.
B. Report Nomenclature
The recommendation of the task force for a family department of the district court comes later in this report. Anticipating that recommendation, this report usually refers to the "family department" rather than the "family court" as it discusses the development of that concept for the state of Utah. The statement of general principles, as opposed to the application of the principle in Utah, and references to the courts of other states may use the term "family court." Quotes referring to the family court or juvenile court in the original text are not changed.
The report uses the term "general department" to refer to the judges and staff that will manage and adjudicate the vast array of civil and criminal cases presented to the district court.
1. Laws of Utah 1991, Chapter 268.
2. Included among the options specified in the letter charging the task force were the status quo, or leaving the juvenile court as it currently exists, complete unification with the district court without any differentiation by case type, a juvenile department of the district court, and a family court or family department of the district court. The task force decided not to include draft legislation or rules within its work product.
3. Final Report of the Commission on Justice in the Twenty-first Century. Recommendation 4.9, at 53.
4. Id. The conditions developed by the Commission on Justice in the Twenty-first Century are listed below. Unless otherwise noted below, the integration of these conditions into the recommendations of the task force is found in the section entitled "Transition to a Family Department of the District Court " beginning on page 81.
"Prior to any change, conduct a thorough study of the current handling of juvenile and family issues in all courts, including an analysis of strategies for increasing flexibility in allowing for the voluntary movement of judges and the assignment of juvenile/family matters;"
"To ensure an effective transition, planning should consider the use of grandparent provisions for judges sitting at the time of reorganization;"
"Based on the study, establish a plan on how and when integration of the juvenile court should be accomplished, taking into account the progress of the consolidation of the circuit and district court;"
"The Judicial Council should by rule allow for the consolidation of juvenile and family matters within the district court;"
Current statutes and rules permit the Chief Justice of the Supreme Court to appoint a judge of one level of court to adjudicate cases in other levels of court. 78-3-21 and 78-3-24. This authority has been used in the Sixth Judicial District to appoint the juvenile court judge of the district to adjudicate domestic cases in the district court creating, in effect, a family department within that district.
"Districts with sufficient workload to justify a separate family division of three or more judges should be permitted the discretion to establish a family division;"
See the sections entitled "Department of the District Court" beginning on page 49.
"The best attributes of the juvenile court should be maintained i.e., court services for juvenile/family matters, the ability to have judges handle juvenile/family matters who have an interest in the area, special education, and specialized rules and procedures;"
For the discussion regarding services see the section entitled "Delivery and Coordination of Services" beginning on page 40. For the discussion regarding judicial assignments see the section entitled "Permanent Judge Assignment" beginning on page 50.
"An increase in attention to due process in juvenile matters beyond that required by current law;"
See the section entitled "The Family Department" beginning on page 39.
"Juvenile courts should be co-located with other trial courts of record to increase juvenile judges' opportunities for varied professional affiliation, and to foster appropriate public respect for the court. (M)"
This was a minority statement of the Commission. Collocation of the courts is not an issue considered by the task force. The current facilities master plan for the judiciary directs the construction of collocated facilities whenever possible.
5. The judges and commissioners collectively favored a department of the district court over a separate court by a ratio of 2:1. The judges of the courts most prominently affected by the issue were split differently. District court judges were evenly split, while juvenile court judges favored a separate court by almost 2:1.
6. The following is a summary of the comments received.
Regarding the Merits
Danger that family court will become exclusively a children's court with insufficient emphasis on the skills necessary to adjudicate contested domestic cases involving tax and property law.
Danger that family court will not pay sufficient attention to juvenile delinquency and child protection cases because of the volume of divorce cases.
Danger that family court will be disadvantageous to minorities and parties with alternative lifestyles because they do not fit the mold of the judge and staff.
The need for a family court, apart from the model, is not adequately justified.
Regarding Judicial Appointment to the Departments
The governor should not appoint judges to a department for permanent service. The governor should make appointments to the district court, without designation to a department. Assignments to departments should be accomplished by a system of volunteering for a term.
Permit the judges of the district to structure the court so that all judges hear and determine all cases. Use the case managers and staff to coordinate cases as planned in the family court. (i.e., specialized staff, but not specialized judges.)
Permit local discretion to assign judges to departments by rotation or by direction of the presiding judge.
Appointment to departments should not be controlled by the Judicial Council.
Do not assign circuit judges to family court involuntarily.
Assignment of a judge to a department should not preclude movement to another department, but judges probably will not be able to pass freely back and forth. Transaction cost of the transfer is too great.
Regarding the Type of Cases Assigned
Include within the cases assigned to the family department, violation of a cohabitant abuse protective order, criminal non-support, and criminal prosecution for child abuse and neglect.
Move prosecution of juvenile delinquency to the general department.
There should be two court executives in judicial districts 2, 3, and 4.
Coordinate management and sentencing of criminal cases with any related family court case.
Mediators should not have to be licensed. Approval of an unlicensed mediator by the court should be sufficient.
Mediation should not be mandatory.
Require candidates for current judicial vacancies to commit to be willing to take an assignment as a family court judge.
What is the impact on secondary sites where juvenile court clerks are state employees and district court clerks are county employees? What is the impact on courts where district and juvenile courts are not collocated? What is the impact on the Salt Lake Courts Complex?
Need common computer system for juvenile and domestic cases.
Report says only that salary differential for incumbent judges who volunteer for service in the family court and a retirement window for incumbent judges should be considered. Does the task force want to make a positive (or negative) recommendation regarding these issues?
Develop pilot program prior to legislation in an environment larger than Sixth District and include the case management functions.
Implement family court simultaneously with circuit court consolidation.
Delay implementation of family court for more than one year after consolidation.
What will the caseload be? How many judges, commissioners, clerks, etc. are needed? What is the fiscal note?