State Records Committee Appeal Decision 2020-32

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BLAKE JOHNSON, Petitioner, v.

JUDICIAL CONDUCT COMMISSION. Respondent.

DECISION AND ORDER

Case No. 20-32

By this appeal, Petitioner, Blake Johnson, seeks access to records allegedly held by Respondent, the Judicial Conduct Commission.

FACTS

On or about January 31, 2020, Blake Johnson, made a request for records pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Johnson requested:

…all documents, decisions, findings, conclusions, etc. related to the investigation into Honorable Thomas L. Kay and his conduct regarding Roush vs. Greene’s Inc., Case No. 160700091. Trial took place September 25-26, 2017. The conduct investigated occurred at the Post Trial Hearing that took place on January 19, 2018.

On February 3, 2020, Respondent denied Mr. Johnson’s request pursuant to Utah Code § 78a-11-112. Petitioner appealed the denial, and on March 17, 2020, Respondent considered the appeal at one of its regularly scheduled meetings. After review and deliberation, the Respondent denied the appeal.

Thereafter, Mr. Johnson filed an appeal with the State Records Committee (“Committee”). On August 13, 2020, the Committee held a hearing during which the parties were allowed to participate electronically and present their arguments. After carefully considering the requested relief of the parties, the Committee issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. Counsel for Respondent requested that Mr. Johnson’s appeal should be dismissed because GRAMA’s Part 4, Appeals, does not apply to Respondent.

2. GRAMA specifies that the judiciary is subject to the provisions of GRAMA “except as provided” in Utah Code § 63G-2-702. Utah Code § 63G-2-702(1); See also, Utah Code § 63G-2-103(11)(a)(iii). Pursuant to Utah Code § 63G-2-702(2)(a), the judiciary is not subject to Part 4, Appeals, except as provided in Utah Code § 63G-2-702(5). Utah Code § 63G-2-702(5) provides that rules governing appeals from denials of request for access “shall substantially comply with the time limits provided in Section 63G-2-204 and Part 4, Appeals.”

3. The Utah Judicial Conduct Commission “is established” by the Utah Constitution under Article VIII titled “Judicial Department”. See, Utah Const. Art. VIII, § 13; Utah Code § 78A-11-101. The Utah Constitution establishes that Respondent “shall investigate and conduct confidential hearings regarding complaints against any justice or judge.” Respondent may order the reprimand, censure, suspension, removal, or involuntary retirement of any justice or judge for items listed in the Utah Constitution subject to review of the Utah Supreme Court. Utah Const. Art. VIII, § 13.

4. Further duties and procedures of the Judicial Conduct Commission are delineated by the Utah Legislature in Title 78A “Judiciary and Judicial Administration”, Chapter 11. This is similar to how duties and procedures of other governmental entities who are considered part of the judicial branch of government are outlined including the Utah Supreme Court (Chapter 3), the Utah Court of Appeals (Chapter 4), Utah District Courts (Chapter 5), Juvenile Courts (Chapter 6), Justice Courts (Chapter 7), and Small Claims Courts (Chapter 8). Additionally, Respondent has the ability to issue subpoenas “in aid of an investigation of a complaint filed with the commission” with the subpoenas having “the same authority as an order of the district court.” Utah Code § 78A-11-113(1).

5. After having reviewed the applicable provisions of the Utah Constitution and Utah Code, the Committee finds that Respondent is part of the judiciary. Respondent was created by the Utah Constitution under Article VIII “Judicial Department”, its duties and procedures are delineated in Title 78A similar to the judiciary, its responsibilities are to investigate and conduct hearings for justices and judges who are within the judiciary, and its ability to investigate is aided by issuing subpoenas with the “same authority as an order of the district court.” Accordingly, the Committee finds that it does not have jurisdiction over appeals from denials of request for access to records from Respondent pursuant to Utah Code § 63G-2-702(2)(a).

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Blake Johnson, is hereby DISMISSED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect a parties’ rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor. Utah Code § 63G-2-403(15)(d)(i)(B). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 24 day of August 2020

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD
Chair, State Records Committee