|
A bill to require installation of gun lockers in Utah's courthouses raised important issues for judges and lawyers. Though resolved last fall, the subject was not widely understood and
has continued to surface periodically. This article puts the issues in perspective and examines their historical and legal context.
Introduction
The gun locker
legislation of 2002 placed Utah's courts squarely between two competing legal mandates, each having force of law. On the one hand, courts were bound by the "weapon-free"
requirements of the Code of Judicial Administration ("Judicial Code") adopted pursuant to authority recognized by statute. On the other hand, courts were confronted with the
newly enacted obligation to install gun lockers, the natural consequence of which would be to invite the presence of guns, especially in the older courthouses of rural Utah.
I
could see the problem coming as soon as the media reported the introduction of House Bill 82 early in the 2002 legislative session. My concerns were shared with staff at the
Administrative Office of the Courts (AOC) and particularly with those charged with monitoring legislation.1 As the session progressed, I was assured that the Judicial Council (the "Council") had adopted a formal position opposing the bill, that the Council's opposition had been clearly communicated in legislative circles, and then later that a fiscal note had doomed the bill to failure.2 Passage of the bill during the waning hours of the session came as a complete surprise; but it was done, and the focus shifted to whether we could make it work without seriously compromising court security and integrity.
As presiding Judge in the Sixth District, I met with the trial court executive and with some of the clerks and sheriffs in the counties of Sanpete, Sevier, Wayne, Piute, Garfield
and Kane. We discussed the realities of our circumstances in the face of the new requirement. In all but Sevier County, the district court sits in county courthouses that serve a wide
variety of public uses through multiple entrances located on all sides of the buildings. Most were constructed during earlier times and are not equipped to deal with the presence of guns.
As this court's general administrative order (the "Order") later stated:
"It is not feasible to install lockers at each of the multiple unmanned, unsecured entrances which range from four to six in the various courthouses. If lockers were installed at
one location, they would become an open invitation for weapon holders to gain access from all the other locations through the very corridors that would bring them in contact with all
participants in the judicial process. The net effect would be to create the very problem we are trying so hard to avoid."3
That was the backdrop against which I commenced a careful review of the court security statute, UCA subsection 78-7-6, and its seemingly irreconcilable progeny. In the beginning the
objective was purely practical. My colleagues on the Sixth District bench were supportive. Our circumstances put us on a collision course with the new statute. We were looking for a
solution to what appeared to be an impossible dilemma. The deeper my analysis, the more apparent it became that reconciling the Judicial Code with HB 82 would not be the major challenge.
The gun locker requirement was conditional not mandatory. Reconciliation would not be difficult, but would it be accepted? Would it appear circumventive? Would it simply
invite the legislature to amend the statute again - close the "loop hole," as it were? If this occurred, it was likely to produce an unproductive constitutional confrontation
between branches of government.
Ultimately, we concluded that reconciling the statute with the Judicial Code would not be enough. If a future unwanted confrontation with the
legislature were to be averted, the case had to be made that weapon-free courthouses are extremely important to the judiciary and to its core and essential functions. Thoughtful persons both within and without the judiciary had to be persuaded and on board. This necessitated a much broader exploration and a discussion about the nature of courts and their separate role in a tripartite system of state government.
The Governing Statute (UCA subsection 78-7-6)
Prior to 1996, the governing statute consisted of one simple paragraph recognizing the right of "[e]very court of
record" to make rules for its own governance. The statute was amended that year to include: "The judicial council may provide, through the rules of judicial administration,
for security in or about a courthouse or courtroom." UCA subsection 78-7-6 (2)(a). The '96 amendment went on to add a completely new concept. The legislature provided for designation of so-called "secure areas," id.,4 and imposed a felony penalty for bringing a firearm within their borders. UCA subsection 78-7-6 (3)(a). However, it limited these areas to the private inner sanctum of court buildings where members of the public are not permitted. UCA subsection 76-8-311.1(1)(e)(ii).5 Notably, the main foyers, corridors and even courtrooms could not qualify.
The net effect of the '96 amendment was to provide the framework for a dual approach to courthouse security. The Council could adopt security rules for the larger area "in or about" courthouses, enforceable by the contempt power, while at the same time designating more narrow private "secure areas" where the legislatively imposed felony penalty would apply.
Judicial Code Amendment
Designating "secure areas" under the '96 amendment appeared to be without a downside and was readily accomplished. The gun locker
requirement was years away and could not have been foreseen. The real debate came the next year with adoption of Senate Bill 132 by the 1997 legislature.6 It exempted certain persons from the statutory prohibition of bringing concealed weapons into secure areas of government buildings. The bill would have little effect in the judiciary unless court rules were similarly relaxed. Council members, judges making special appearances, and spokespersons for the Utah Bar expressed great reluctance to relax any provisions relating to weapons.7 Extensive debate focused around three questions: (1) Should there be any exceptions to the long-standing weapon-free policy; (2) who should decide on exceptions; and (3) should the policy be uniform throughout the State?
Final resolution came in the January 1998 Council meeting. Court security rules were amended to provide: "A courthouse is presumed to be free of all weapons and firearms
unless a local security plan provides otherwise in accordance with this rule." CJA Rule 3-414 (7)(A)(i). The Council thus reaffirmed the basic statewide policy of no weapons, but recognized exceptions could be made by affirmative action on a local level. The authorized exceptions under 3-414 were limited to judges, court commissioners and other officials, along with certain law enforcement officers. CJA Rule 3-414 (7)(B)(i), (ii) and (iii).
Local Security Plans
The Council's action provided for the judges at all levels who sit in each courthouse to participate in formulating a local security plan for that
facility.8 The membership of the local security committees included the judges - district, juvenile and justice court - the trial court executive, the county sheriff, court clerk and a probation officer. In each of the counties in the Sixth District, local security committees were dutifully formed and security plans were approved.9 Each member personally signed the plan for his/her courthouse. They prohibited all weapons except for certain judicial and law enforcement officials authorized under the rule. These plans were in force when HB 82 came on line. They were the law governing court security.
The Gun Locker Amendment
The absence of a downside in designating "secure areas" vanished with the adoption of HB 82 by the 2002 legislature. It attached a
significant price if courts were to continue to maintain these narrow areas where a felony penalty could be imposed. The operative language of the bill provided: "If
the [judicial] council establishes a secure area...it shall provide a secure firearm storage area on site so that persons with lawfully carried firearms may store them while they are in the secure area." UCA subsection 78-7-6 (2)(b)(i). [Emphasis added.] The language is clear and simple. The requirement is conditional not mandatory. Equally important, the condition is subject to the sound discretion of the Council.
The Sixth District's General Order
a. suspension of secure areas
The general administrative Order issued by the Sixth District on May 2, 2002, and supplemented shortly thereafter, pointed out the conflict between the newly enacted HB 82 and the established Judicial Code and local security plans. Among other things, the Order examined the conditional language adopted by the legislature and concluded that the "price
. . . is too great" for the benefit derived from the secure area designation, especially in rural courthouses which have only minimal private judicial areas that qualify for such designation, and where gun lockers would create unmanageable logistical problems.10 The Order recommended that the judiciary rethink its position, stating: "Secure areas were established several years ago. The legislature has belatedly changed the rules. This warrants re-examination by the courts. Decisions must be made whether to accept the newly imposed gun locker condition or suspend establishment of so-called 'secure areas'." 11
b. separation of powers - "core" and "essential" functions
Hoping to avert a future challenge, the Order does not limit itself to recommending reconciliation by suspending secure areas, but proceeds to make the case for the Council's weapon-free rule. It finds support in the constitutional doctrine of separation of powers, and the existence of inherent powers that derive therefrom. The doctrine, once thought to require complete separation of the three branches of state government,12 has come to be viewed less like abutting circles that touch only on the edges, and more like the Olympic rings that have areas of overlap and areas of exclusivity.13 It was most recently examined in the case of In Re Young, 976 P.2d 581 (Utah 1999), which upheld participation of legislators on the Judicial Conduct Commission charged with investigating and making recommendations regarding
the discipline of judges. These shared functions were adjudged permissible areas of overlap. The area of exclusivity was the imposition of discipline which was reserved to the Supreme Court. This was the "core" or "essential" function "properly belonging to" or "appertaining to" the judicial branch. Id. at 586.
Whether court security implicates "core" or "essential" functions required review of the Judicial Code and consideration of the nature of courts. When the
Council adopted Rule 3-414, it defined "court security" as including not only "safety and protection," but ensuring the "integrity of the judicial process".
CJA Rule 3-414 (1)(1)(A). As to these dual purposes, the Order reasons:
No single characteristic of the judiciary is more defining of its nature nor of greater consequence to its purposes than its reliance on the power of reason and law rather than the
power of the sword. The very essence of the judiciary is the antithesis of 'might makes right.' It represents one of man's most noble and complete aspirations at civilization. The
gladiators in the legal arena are armed only with books and the power of reason and logic.ÉThe right of the judiciary to maintain an arms-free environment not only relates to the
protection of judge, jury, court personnel, counsel, litigants, and witnesses, but to the maintenance of an environment where even the silent influence of physical weaponry is
eliminated."
Order at page 18.
As in Young, the Order identifies an appropriate area of overlap as well as an area properly reserved to the courts. It concludes:
"The legislative and executive branches, with the powers of purse and sword, respectively, can and must assist with protection of both persons and the integrity of the judicial
process, but this necessarily stops short of defining the essential nature of the judicial environment. That, in the view of this court, is a core function reserved exclusively to the
judiciary."
Order at page 19. [Emphasis added.]14
The Response Outside the Judiciary
Media and public support for weapon-free courthouses was immediate and quite remarkable. In a rare show of unanimity, the Deseret News, Salt Lake Tribune, Standard Examiner, Provo Daily Herald
and KSL Television all ran supporting editorials, most on multiple occasions.15 More important, rank and file citizens, (as evidenced by opinion polls, letters and personal contacts) understood the issue and sensed that it was really not about the right to bear arms, but rather about what courts do and the resolution of conflict in an atmosphere where resort to arms is not appropriate and should not be readily available. As the Order observed and as the media widely reported, "Handing a loaded gun to an angry and disgruntled participant leaving the courtroom after a traumatic and sometimes shattering experience is fraught with danger." Order at page 13.
The recommended reconciliation through suspension of secure areas did not receive any media attention until after the confrontational aspects of the issue had played out. This
was, no doubt, influenced by three major factors: (1) the extent of the separation of powers discussion in the Order, (2) the strong initial reaction of the Attorney General and
(3) the natural inclination of the media to focus on conflict. Regrettably, I did not send a copy of the Order to the Attorney General.16 It was a major oversight that contributed to the debate running awry. The Attorney General was pressed by the media for a response and unfortunately made some harsh statements alleging judicial lawlessness before having read the Order.17 He and I have since cleared the air and exchanged mutual apologies.18 We are in agreement that the gun locker requirement is conditional and within control of the judiciary.
The response of legislators has been mixed. The great challenge is to unwind misimpressions stemming from the initial interviews and media reports. The Order was never intended as an affront to the legislature. Once that becomes apparent, most contacts with legislators have been amicable and helpful. The Speaker of the House, to whom I had furnished a copy, called early on and reported that he had just read the Order,
that it did not say what he had been led to believe and that he was open to a solution. We discussed judicial suspension of secure areas. It appeared to be a viable alternative.19 To their credit, other legislative leaders were supportive of a practical resolution. Both branches were well served by this approach.
Judicial Action Maintaining Weapon-Free Courthouses
On May 15, less than two weeks after issuance of the administrative Order, the Board of District Court Judges
met and unanimously endorsed its content.20 The Board also encouraged the Council to ratify the Board's position and to take action consistent with its objectives. Within days, the Presiding Judge in each of Utah's eight judicial districts advised in writing that virtually all the judges in each district were supportive of the resolution adopted by their state-wide board.21 At the same time this was occurring, the subject was receiving the extensive treatment in the media and on radio and television which has been discussed above.
This set the stage for the Council's meeting on May 28. On that occasion, the Council determined to eliminate the conflict by temporarily suspending the statutorily defined secure
areas pending further review. Three months later the Council made the suspension permanent and issued a succinct written statement reviewing what had transpired and explaining its action.
An excerpt from that statement reads:
After carefully considering the practical and legal effects of secure areas, the Judicial Council decided to exercise the discretion previously granted by the Legislature and eliminate
the secure areas, but continue to maintain weapons free courthouses. In reaching this conclusion, the Judicial Council recognized the limitations, inconsistencies and compromised
security that are linked to secure areas in the courthouse setting. The Judicial Council recognized the paramount concerns of judicial integrity, and the safety and security of all
court patrons. The Judicial Council also recognized the expertise and concerns of judges and law enforcement officials who are faced with these concerns on a daily basis.22
Thus the matter that had produced so much controversy and public commentary was brought to an unceremonious conclusion. The condition on which the gun locker requirement depended was
permanently rescinded. Courthouse security, however, remained unchanged. Elimination of the discretionary secure areas did not undermine the much broader and long-standing weapon-free
policy of the courts. Would this favorable result have been achieved in the absence of the extensive discussion, exposure and debate which had occurred? We can only speculate. More
important, has the case for weapon-free courthouses been sufficiently made to avert a future confrontation? Hopefully the answer is yes, but only time will tell. In the meantime, this
much is clear - reconciliation between the Judicial Code and HB 82 has been achieved in a remarkably simple and practical manner.
Conclusion
The gun locker amendment put judges on the horns of a dilemma. Reliance upon the fixed legal requirements of the Judicial Code and local security plans was appropriate not only as a matter of law and judicial integrity, but also in light of the conditional language adopted by the legislature. The amicable resolution achieved by suspending secure areas made good sense, eliminated the legal conflict and avoided a constitutional showdown. The downside from this resolution is minimal. The felony penalty is gone, but its benefit was slight because it didn't apply in the areas of greatest risk, i.e., the areas to which the general public has access, including the courtroom. Moreover, if a serious gun incident occurs any place in a court building, finding a felony penalty that fits will likely not be the major challenge. In the end, the judicial approach to court security remains one of prevention. It is reminiscent of the instructive literary piece that suggests the best approach is to "put a fence around the edge of the cliff."23 Finally, and perhaps most importantly, the judiciary has maintained the integrity of an environment, painstakingly developed over many centuries, where force of arms holds no sway and the scales of justice are tipped only by the weight and power of truth, reason and logic under the rule of law.
Footnotes
1. Rick Schwermer, Mark Jones and members of the Judicial Council Legislative Liaison Committee chaired by Justice Michael Wilkins.
2. The Council representatives on the hill claim they were assured of non-passage by the bill's sponsor.
3. General Order 2002-1 issued by the judges of the Sixth District Court dated May 2, 2002, at page 14. A brief supplement was issued on May 17, 2002. They are collectively referred to as the "Order".
4. The legislative history reveals that the "secure area" concept arose in response to requests from government agencies other than courts.
5.
As the citation reveals, the "secure area" definition is borrowed from an entirely different section which deals essentially with corrections, mental health and law enforcement facilities.
6.
Senate Bill 132 enacted UCA subsection 53-5-710 (now 711) and amended UCA subsection 76-10-523. Minutes reveal debate over gun issues in at least the following meetings: Policy and Planning, Sept. 1996; Policy and Planning, June 1997; Council, July 1997; Policy and Planning, August 1997; Council, Dec. 1997; Policy and Planning, Jan. 1998; and Council, Jan. 1998.
7.
See minutes of the Council meeting, Dec. 1997, at which President Charlotte Miller and Commissioner Fran Wikstrom set forth the position of the Utah Bar. Third District Judge Ron Nehring spoke on behalf of a group of judges. The positions of all were in accord. They strongly favored a completely weapon-free environment and gave persuasive arguments in support.
8. Council minutes, Jan. 1998.
9. Copies were attached to the Order. They were first adopted in October of 1998 and revised in August of 2000.
10. See the discussion on page 23, and conclusions numbered 11 through 15 of the Order at page 28-29.
11. Order at page 2 of supplement.
12. See Kimball v. Grantsville City, 19 Ut 368, 57 P. 1 (Utah 1899); Young v. Salt Lake City, 24 Ut 321, 67 P. 1066 (Utah 1902); In re Handley's Estate, 15 Ut 212, 49 P. 829 (Utah 1897).
13. See Tite v. State Tax Comm., 89 Ut 404, 57 P. 734 (Utah 1936) and Taylor v Lee, 119 Ut 302, 226 P.2d 531 (1951). "[A]bsolute independence of the three branches of government . . . has not been found entirely practicable." Tite,
57 P. at 737.
14. While there are no Utah cases on point, other courts, including the high courts of two western neighbors, have found inherent authority within the judiciary
to control court security including prohibition of weapons. See Board of County Comm'rs. v. Nineteenth Judicial District, 895 P.2d 545 (Colo. 1995); State v. Wadsworth, 991 P.2d 80 (Wash. 2000). Wadsworth is particularly helpful because it involved a county courthouse whose circumstances were such that prohibition of weapons necessarily extended to the entire building.
15. Deseret News, May 6 and May 14, 2002; Salt Lake Tribune, May 14 and May 28, 2002; Ogden Standard Examiner, May 21 and May 24, 2002; Provo Daily Harold, May 5 and May 31, 2002; and KSL, May 20, 2002.
16. A copy of the Order was filed in each impacted county, and courtesy copies were furnished to the Chair of the Judicial Council, the AOC, the Governor, legislative
leaders and legislators whose districts were impacted.
17. The Attorney General's statements followed the initial newspaper stories that surfaced around May 10. The AG was
widely quoted on television and in the major newspapers. Brent Johnson, counsel to the AOC, challenged some of the statements and a telephone conversation ensued between the three of us.
In that conversation, the AG properly complained that he had not been furnished a copy and acknowledged that he had not read the Order when he granted the interviews and made his
impassioned comments.
18. This occurred at a meeting between the two of us in the AG office on or about December 17, 2002.
19.The visit was by telephone during the work week beginning May 20, 2002.
20. Resolution of Utah Board of District Court Judges adopted May 15, 2002 following a presentation
by Presiding Judges Ron Nehring and Rand Beacham of the Third and Fifth District Courts, respectively, and reflecting views widely held by their colleagues.
21. Letters or memos of support were forwarded to the Board Chair or to the AOC.
22. Judicial Council statement released to the media following a unanimous vote on Aug. 23, 2002.
23. "A Fence or an Ambulance", Joseph Malins. The Best Loved Poems of the American People, Doubleday, page 273.
|
