Monday, September 16, 2013

JUSTICE FOR ALL: The Case for Reforming Utah's Court System

Last year I drafted legislation to look at reforming Utah's court systems. At that time, out of deference to local stakeholders in my district, I agreed to send the bill to interim study for further review.

In the bill, I propose modifying our court structure which is currently modeled around the two pillars of Justice Courts and District Courts. My proposal calls for the creation of a third pillar, called the Circuit Court. The effort is a holistic approach to solving a myriad of problems plaguing our current system.  Let me explain.


Article VIII, Section 1. - Utah Constitution   
            The judicial power of the state shall be vested in a Supreme Court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish. The Supreme Court, the district court, and such other courts designated by statute shall be courts of record. Courts not of record shall also be established by statute.

Early in our state's (and territory's) history, Justice Courts were established as a means to settle simple disputes in the community.  If Farmer Brown's cow wandered off and ate Grandma Greenthumb's lettuce patch, the dispute could be settled by a Justice Court. These courts were intended to handle rather mundane cases.  As such, they were designated as "not of record".  So what does that mean?  It means that in the eyes of the other pillars of our legal system, these cases are 'invisible' to them.

For instance, let's presume Farmer Brown's cow was found to be neglected and Farmer Brown was fined for the oversight.  The case would be closed.  Since the infraction is minor, possibly not even a misdemeanor, Farmer Brown could not appeal his case to a higher court.  In the eyes of the broader court system, the case does not exist.  It's end is in the Justice Court.

Now, lets suppose that Farmer Brown has also been fermenting some mash in his barn and brewing moonshine.  One day Farmer Brown gets tipsy one day and drives his tractor into town blowing through stop signs and parking in a handicap parking spot before police catch up with him.  He is cited with a DUI and heads to court.  In this case, the Justice Court.  In that court he is found guilty.  However, Farmer Brown's attorney is well paid and knows a funny thing about Utah DUI law.  In Utah, DUI and domestic violence cases can be heard in Justice Court and/or District Court.  Thus, dissatisfied with the outcome in Justice Court, Farmer Brown's attorney files a motion to have the case heard again but this time in District Court down the street.  Due to better preparation on the technical details, Farmer Brown's attorney is able to convince the District Court that his client is not guilty and Farmer Brown is exonerated and sent home.

This scenario is not far fetched.  In fact, it is common practice in Utah's Courts today for unsatisfied parties to retry their DUI and domestic violence cases in District Courts when they receive an unwanted outcome in the Justice Courts.  The reason this is possible is because Justice Courts are 'not of record'.  Thus, the District Courts do not 'see' and cannot consider the previous trial or outcome of the Justice Courts.    If you are charged with a misdemeanor and don't like the outcome from the Justice Court, you get a mulligan and can start over fresh in the District Court.  Thus, defendants unfairly get two bites at the justice apple in a process called trial de novo.

This 'Not of Record' status held by Justice Courts also means that there is no appellate oversight of their work as there is in the District Courts courts.  Disputed cases in District Courts are sent to the Appellate Courts.  Disputes in the Appellate Courts are sent to the Supreme Court. Each court can overrule its subordinate court. But in Justice Courts, there is no appeal and no higher court.  This is unfortunate because the judicial review and oversight that is present through the appeals process acts as a kind of quality control for the court system.  Questionable verdicts solicit second opinions through an appeal.  This secondary review acts as a check on the lower courts who may stray from standard and accepted sentencing practices or findings.  Justice Courts, as they are constituted today, lack this appellate oversight.  Thus, the volatile and inconsistent sentencing we see today across Justice Courts in Utah should not surprise us.

Another systemic issue facing Justice Courts is their role in municipal budgets.  Since Justice Courts are able to levy fines for infractions, that revenue goes to the coffers of the municipality that issued the citiation.  While some municipalities are very responsible in handling this privilege, others are not.  Recently, I was made aware of a city in Utah that increased their budget by $1 million by counting on an increase in revenues of $1 million from their Justice Court.  Since their population isn't growing fast enough to justify that increase, are they expecting their population to become more criminal in nature or become worse drivers?  In this case, the only way to meet the enlarged budget is to enlarge the number of citations issued.   Baking new Justice Court revenue into the city budget cake is a recipe for injustice.


Article VIII, Section 5. - Utah Constitution  
            The district court shall have original jurisdiction in all matters except as limited by this constitution or by statute, and power to issue all extraordinary writs. The district court shall have appellate jurisdiction as provided by statute. The jurisdiction of all other courts, both original and appellate, shall be provided by statute. Except for matters filed originally with the Supreme Court, there shall be in all cases an appeal of right from the court of original jurisdiction to a court with appellate jurisdiction over the cause.

Now lets move on to the second pillar of courts called the District Court.  Utah's District Courts are charged with hearing the meatier cases.  Sex crimes, homicides, and heavy felonies fill the docket of the courts.  Also included in the court's jurisdiction are family law issues such as divorce, custody, and alimony decisions.  Lastly, as was previously mentioned, the courts can also hear DUI and domestic violence cases...both misdemeanors.

Judges in the district court are selected through a rigorous process.  Candidates names are presented and screened by a panel.  The recommendations of the panel are forwarded to the Governor's office who then selects the candidate he wishes to appoint.  Then, that appointment is debated and confirmed by the State Senate.  All along the way, the candidate is placed under scrutiny by both the executive and legislative branches of government.

Unfortunately, this vetting process is not followed for everyone hearing cases in Utah's District Courts.  In metropolitan districts, the workload can be more than one judge can handle.  So, rather than hiring another judge, a commissioner system has been established to help manage the cases.  The commissioners act as a judge in hearing cases but lack the authority to mandate court action.  Instead, they hear the case and make a recommendation to the judge.  The judge then authorizes the court action typically based on the recommendation of the commissioner.

So how are commissioners chosen?  They are hand picked by the District Court judges with little public scrutiny.  If these commissioners are going to be acting as pseudo-judges, wouldn't it be better just to hire another judge that is fully vetted through the established process?   This lack of scrutiny in selecting commissioners creates some obvious problems of oversight and accountability to the public.  Such problems are manifest in recent news reports about a rogue commissioner who was stripped of his authority to hear cases due to misconduct.


So, to mitigate the many weakness of our current system, it seems that a holistic approach would be best.  Rather than trying to patch a dozen or so problems with convoluted statutory changes, it seems that a simple solution would be the more desirable answer.  That solution, I believe is reconstituting the Circuit Courts.  You can read my draft legislation below:

This bill creates a Circuit Court system in Utah.  The goal being to cure these pervasive weaknesses in our system and improve the quality of justice in our state by providing for efficiency and specialization.

The bill does the following things:

1.  Removes misdemeanors from Justice Courts and District Courts and places them in the exclusive jurisdiction of the Circuit Courts
2.  Removes family law from the District Courts and places them in the exclusive jurisdiction of the Circuit Courts.
3.  Creates a series of Circuit districts that mirrors the current District Court districts.
4.  Provides that Circuit Court judges are to be nominated, vetted, and appointed just as District Court judges.
5.  Details the distribution of fines and fees obtained through convictions in the Circuit Courts.

By creating a Circuit Court, many of the weakness of our Justice Court system are eliminated.  The Circuit Courts will be courts of record and will prevent trial de novo abuses we currently see.  Defendants will have the option of appealing an undesirable verdict to a higher court if they feel that is in their best interest.  However, the higher court will now be able to take the case information and deliberations into consideration when making their finding.

Also, as courts of record, they will also have appellate oversight by the higher court.  With higher court judges reviewing the casework of their colleagues in the Circuit Courts, this peer review will provide an excellent incentive for professionalism from the Circuit Court. This review should provide a moderating force in court decisions and verdicts.

The creation of the Circuit Courts will also insulate municipalities from the temptation to fill their coffers with fines generated from local Justice Courts.  While it is reasonable that cities receive fine revenue from citations issued in their city, it is important to safeguard against abuse.  This bill as currently written will have the state paying for the operation of Circuit Courts and the fines and fees split between the State and the municipality the case originated from.  With Circuit Court judges being nominated, vetted, and appointed in the same manner as District Court judges, this should provide for more highly qualified individuals and also an arm's length relationship between the judges and the cities within their jurisdiction whom benefit from the verdicts of the court.    

Finally, the reduction in caseload at the District Courts should reduce a lot of the demand for commissioners.  That reduction should improve the quality of work done in the courts and also work toward improving the public's faith and trust in their court system.

There are several other nuances that will be addressed in the bill regarding the structure of the Justice Courts and their role in our justice system but we will discuss those subtleties another day.

Critics of this effort will cite the costs and say we are moving backwards and not forward.  The costs are yet to be known while the problems our current system has are real.  I look forward to a vigorous discussion with stakeholders and colleagues as we work to provide better justice in the State of Utah.

For those of you interested in the discussion, you can also read a recent article on the subject.


  1. It's always interesting how newcomers have so many answers when not really familiar with the existing system in place. For one, "all" cases in a justice court are "appealable" to the district court. For another, inspite of the claims made by those not aware of the facts, most justice courts do not profitable to their city or county. And for another, justice courts have sentencing guidelines for DUIs DVs etc. And although alot of other arguments the most compelling is likely a fiscal note that would likely scare us all to death.

  2. It's even more interesting how seasoned people who know the facts appear to have some valid points, but make it difficult for the rest of us to follow their logic because they fail to proofread their comment before clicking on the Publish button.


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