Allowing the public to directly observe what goes on, rather than get secondhand accounts from reporters increases their understanding of the judicial system, increases accountability and increases public confidence. —Media attorney David Reymann
SALT LAKE CITY — For more than a year, a team of judges, attorneys and court administrators worked to craft finely a rule that would allow — for the first time in Utah history — the use of electronic media and television cameras into the state's courtrooms.
Utahns were able to witness firsthand what goes on inside their courtrooms.
But it took just over a year for that presumptive openness to face added restrictions, which were voted in after being proposed at a single meeting of the Utah Judicial Council in April. The rule was changed to separate domestic relations cases, including divorces and guardianship hearings, from all other court cases and require those requesting to record such hearings to explain why they should be allowed to do so.
Previously, all court hearings were open unless a judge could justify barring electronic media coverage.
Court officials maintain it's a privacy matter. But family law attorney Eric Johnson, who has issued numerous requests to record the hearings, and media attorney David Reymann — who is working with the Utah Headliners Chapter of the Society of Professional Journalists in opposing the change — argue the restriction was a hasty one made with Johnson in mind that will have negative ramifications.
"It's all about this one person," Reymann said. "When you change the rule to react to one specific situation, it's not good policy. It's an overreaction to one incident."
Brent Johnson, general counsel for the Utah State Courts, said he has tried hard not to make the change about a single person, though he did say that the requests of a specific person "pointed out an issue" that contributed to the rule change.
"Mostly it's a burden shifting," he said. "It still allows recording in those proceedings, it just puts the burden on the person who wants to record. In certain case types, the case files are private and they just decided that in all those case types where the case files are private, they're going to take away the presumption (of openness) in those cases just because of those heightened privacy concerns."
Reymann said the privacy of documents is irrelevant. Just because some court documents are private does not mean that cameras should be kept from hearings that are open to the public.
The initial rule recognized that there is no real difference between a camera and a reporter sitting in a courtroom, Reymann said. The rule change again tries to draw the distinction between cameras and reporters and undermines the benefits of public access to the courts.
"Allowing the public to directly observe what goes on, rather than get secondhand accounts from reporters increases their understanding of the judicial system, increases accountability and increases public confidence," Reymann said.
"It's particularly important for domestic cases, because members of the public are more likely to be involved in domestic law case than any other aspect of the judicial system in the course of their lives."
Eric Johnson said the goal of helping Utahns understand and observe what goes on in domestic relations hearings is the reason he started a YouTube channel called Utah Family Law TV and why he's made requests to record as many as 30 different hearings since January. He said he was allowed to record one, in Provo's 4th District Court.
"What people's expectation of the law and the operations of the courts are, are about 180 degrees different from the way the law and the courts actually work," Eric Johnson said. "And so the reason I established the channel and the reason I'm trying to cover the proceedings is because the news is in the proceedings — not the people or the participants."
He said he doesn't want to broadcast lurid details about people's private lives but wants to show Utahns exactly what they can expect from various hearings. He contends that he merely strives to disseminate the information for the public's benefit and does not use the channel to advertise his own services.
He disagrees that such hearings are especially sensitive.
"There are those people who are deathly afraid that if (a hearing) is featured on electronic news media that it's somehow going to lay their lives bare," Eric Johnson said. "I would encourage someone to go to family law proceedings for a day. There's very little in the way of lurid, sensational stuff. It pops up in these situations no more so than rape cases or kidnappings or burglaries to prostitution. There's plenty sensational, lurid stuff to go around, so family law is not in a class all its own. To claim that it's so special and so unique isn't borne out by the facts."
He said he has sometimes asked those involved in the hearings if he can film, which, he notes, is not required under the rule. Even with their permission, his requests have been denied. The denials come for myriad reasons, including that he is not considered a journalist by judges.
The revised rule eliminates language that defines a journalist as anyone who gathers, reports, records or publishes information to the public and narrows it to those who disseminate news. It reads that a judge may still allow electronic media coverage in cases where the documents are classified as private if the predominant purpose of the recording is journalism or "dissemination of news to the public."
"They changed the rule because of me," Eric Johnson said, pointing to the timing of his requests and the timing of the rule change. "Did they change the rule purely because of me and my efforts? I'm not sure. There are one or two other requests that might have surfaced, but I'm the only person who ever wanted to cover domestic relations cases."
Regardless, Brent Johnson said the amendment is one that "made sense" to the members of the judicial council, prompting its immediate implementation. In most cases, a judge has to justify a closure, but because the burden now shifts to the requestor to argue for openness in domestic law cases, a second request form will be used for those hoping to record such cases.
The rule is open to revision following a comment period that runs through June 24. The Utah Headliners chapter of Society of Professional Journalists issued a news release urging its members and the public to oppose the change by submitting a comment to the court about the rule.
"The closure of family court to the video camera rule is a dangerous precedent which could lead to further erosion of transparency," said Sheryl Worsley, who is president of the journalists society chapter and news director at KSL Newsradio.
"Courts are open and this move restricts access of citizens who have a right to know what is going on in a court of law."