CX-89-1863 STATE OF MINNESOTA IN SUPREME COURT In re: Supreme Court Advisory Committee on General Rules of Practice

Recommendations of Minnesota Supreme Court Advisory Committee on General Rules of Practice

FINAL REPORT October 1, 2013

Hon. Kathryn Messerich Chair

Hon. Wilhelmina Wright Liaison Justice lion. Steven J. Cahill, Moorhead Hon. Joseph T. Carter, Hastings Hon. Mel I. Dickstein, Minneapolis Francis Eggert, Winsted Jennifer L. Frisch, Minneapolis Hon. Rosanne Nathanson, Saint Paul Dan C. O'Connell, Saint Paul Paul Reuvers, Bloomington Daniel Rogan, Minneapolis Hon. Shari Schluchter, Bemidji Erica Stroh', Minneapolis Hon. Robert D. Walker, Fairmont

Michael B. Johnson, Saint Paul Staff Attorney David F. Herr, Minneapolis Reporter

Introduction The advisory committee met during September 2013 to review the status and results of the Pilot Project this Court established by its Order dated March 11, 2011, on the use of video and audio recording of court proceedings in Minnesota. In its order, the Court directed this advisory committee to report to it by October 1, 2013. This report addresses the status of the Pilot Project implemented pursuant to the Court's 2011 Order. In addition, the advisory committee addressed one issue relating to the General Rules and recommends amendment of Rule 304 of the Minnesota General Rules of Practice to provide more clearly for the use of Scheduling Statements and Initial Case Management Conference Data Sheets. Review of the Last Two Years The Court's 2011 Order took effect July 1, 2011. The most important development on the reporting of Minnesota court proceedings in the Court's 2011 Order was the change to a rule that requires only the consent of the presiding judge to allow the use of cameras and audio recording equipment to report on Minnesota court proceedings. Prior to the 2011 Order, the use of cameras and audio recording equipment was allowed only if all the parties and the court agreed to their use. After this change, the parties' views remained relevant to the question; but the parties could no longer veto camera or audio coverage.

A written report submitted on behalf of the media Petitioners by their attorney, Mark Anfinson, is attached. 1 The most striking aspect of the impact of the Court's 2011 Order has been the paucity of requests for camera coverage in the trial courts? During the first 26 months of the Pilot Project, there have been very few video- or audio-reported trial court proceedings. 3 The advisory committee is aware of approximately 20 requests for coverage of court proceedings during the pilot period. Of those requests, approximately half resulted in some electronic coverage being allowed. These proceedings were predominately single-hearing proceedings, such as motions for summary judgment, motions for temporary injunctive relief, and post-trial motions in a case involving a large verdict. No jury trials were covered and there was no video coverage of witnesses testifying in any type of proceeding. Additionally, one television station covered multiple hearings on a
The Anfinson report is provided to the Court for its information. The advisory committee does not necessarily adopt the Anfinson report nor is it the only source of information received by the advisory committee to inform its recommendations. The Anfinson report is, however, the only compilation of data received on the operation of the Pilot Project. The Court's 2011 Order did not appreciably change the use of cameras in appellate court proceedings, and the advisory committee has not studied cameras in the appellate courts. The Minnesota experience appears not to be unusual. The federal-court pilot project referred to in this Court's 2011 Order, at 9 n.2, though not complete, appears to have similarly anemic coverage levels. According to the federal courts' website reporting on the status of the Digital Video Pilot Project as of December 31, 2012, the fourteen district courts designated as pilot districts had held 50 trial proceedings that were video-recorded. See http://news.uscourts.gov/us-courts-camera-pilot-exceeds-100000-video-viewings, last visited on September 24, 2013. The one notable difference in the federal project is that it has had 14 jury trials recorded. The Federal Judicial Center does not appear to have released any conclusions about the federal pilot project, including the reactions of the presiding judges, lawyers, litigants, and other participants, so it does not yet provide any data particularly useful to the issue currently before this Court.
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single day in Hennepin County Housing Court. During the Housing Court proceedings, with the presiding judge and the news reporter both reminding the parties that they could opt out of being recorded on camera (essentially requiring both parties to consent as the Rule prior to the Pilot Project required), none of the pro se parties opted out and one lawyer objected on behalf of his or her client. The data on these proceedings in which electronic media coverage occurred are not complete because there was not a consistent manner of reporting either requests or judicial responses to these requests. The committee believes the data present a fairly accurate record of the limited practical expansion of camera coverage. The reasons given by the courts for denials of camera coverage include physical limitations in some courtrooms or conversion of a scheduled hearing to an in-chambers settlement conference. One court denied access because the underlying dispute involved a sex crime, although the case itself did not directly involve the sex-related issues. The advisory committee viewed portions of the coverage of some of these proceedings as broadcast by one of the Twin Cities' television stations. We also have requested that a copy of those clips be made available to the Court for its review. The general opinion of the committee is that the broadcasts reviewed were well done and well presented, though the committee's assessment is limited by the scope of the proceedings covered. (See discussion below.)

Conclusions The committee is reluctant to characterize these observations as "Findings," but it did draw some conclusions that may be of value to the Court. 1. Over the two-year period of the Pilot Project, the number of media requests for coverage of civil matters was extremely small, with only 20-25 requests being made. 2. The committee is not aware of any problems or complaints caused by the use of cameras or audio recording equipment in court proceedings during the pilot period. 3. Coverage of the proceedings has not, to the committee's knowledge, generated any known prejudice to any of the parties. 4. Trial court decisions relating to media access have not generated any known appeals or extraordinary writ applications, and such decisions have not appeared to delay any of the affected proceedings. 5. With respect to the operation of the amended rules adopted in 2011, the committee believes the rules appear to operate well, work as intended, and provide a procedure for addressing requests for media coverage. The committee does not recommend any changes to the rules, other than changes that may affect the scope of any extension or expansion of the Pilot Project. (See following section on Potential Extension of Pilot Project.) 6. The media coordinator position adopted by this Court's 2011 Order has served a useful purpose in the smooth operation of the rules, and the position has not imposed any costs on the judiciary. In some instances, judges chose to work directly with media representatives, bypassing any involvement of a media coordinator.

Potential Extension of the Pilot Project Although the committee is not aware of any problems that arose with the use of cameras or audio recording during the Pilot Project, it is mindful that the experience gained during the two-year pilot period was limited in two important respects. First, there were relatively few requests to permit camera coverage of court proceedings. About half of the requests resulted in recorded reporting of the court proceedings. This small sample size at least alerts the committee to the possibility that we have not learned as much as we might like about the impacts of audio or video coverage of court proceedings in civil matters. Secondly, the limited nature of the proceedings covered creates a different limitation on the value of the experience gained from the Pilot Project. For example, no trial testimony or jury trials were covered in the broadcast media during the pilot period. As a result, the advisory committee is not confident that the absence of reported problems means that real problems are not lurking. Two years of essentially problem-free implementation of the changes are encouraging, but this does not allay all concerns. The Court may want to consider extending the Pilot Project as it now exists to gain more data. Alternatively, the Court could conclude that the absence of problems during the past two years is a sufficient experience to rely on in deciding to codify the current rules. The media Petitioners have asked for an extension of the Pilot Project. In addition to considering the extension of the existing Pilot Project, the media Petitioners have suggested that it would be appropriate in limited circumstances to extend

the scope of the Pilot Project to permit electronic coverage of at least some criminal proceedings. The advisory committee believes consideration of this expansion to some proceedings in criminal cases may be appropriate. For example, there may be worthwhile reasons to facilitate coverage of Minnesota's innovative use of problemsolving courts, such as Drug Courts and Veteran's Courts. The advisory committee also believes, however, that any such extension to criminal matters should be preceded by a thorough examination of the criminal justice process to assess the wisdom of this extension and the appropriate limits to the use of cameras and audio recording. It may be that first appearances and sentencingsevents that generate public interest and that the news media would be interested in coveringcould be covered without implicating concerns about media depictions of victims, witnesses, or jurors. This advisory committee has not formed an opinion on those issues, other than that they should be assessed by professionals with experience in the criminal process. If the Court wants to consider the use of cameras and audio recording in any portion of criminal proceedings, it should request that either this committee or its Advisory Committee on Rules of Criminal Procedure consider the issue. Either committee should seek input from a broad group with diverse interests involved in the criminal justice system so that a fully informed recommendation may be made to the Court. Finally, the committee recommended to the Court in 2011 that it might be useful to require that all requests for electronic coverage of court proceeds be copied to the State Court Administrator in some way. It is clear that more robust data would exist at this
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point if that requirement (or some comparable mechanism for data collection) had been implemented. The Court may want to consider the value that would be derived from a single repository of basic information on all media requests.
Effective Date

The committee believes that any rule amendments related to video and audio recording of court proceedings can be made effective as soon as the Court is ready to evaluate the data and the recommendations in this report, The amendments to Rule 304 can probably be considered fairly and fully without a lengthy comment period or public hearing and can be adopted to take effect on January 1, 2014.
Style of Report

The specific recommendations are reprinted in traditional legislative format, with new wording underscored and deleted words struck through. Respectfully submitted, MINNESOTA SUPREME COURT ADVISORY COMMITTEE ON GENERAL RULES OF PRACTICE

Recommendation 2:

The Court should amend Rule 304 to provide for the differing case management processes used in different counties and districts.

Introduction

The Minnesota district courts have developed two different mechanisms for scheduling and managing family law matters, but existing Rule 304 deals with case management and scheduling in a monolithic way. The committee believes Rules 304.02 and .03 should be amended to reflect the two differing methods, especially since the Initial Case Management Conference process uses a pre-conference data sheet that should not be filed so as to become part of the court file, while the initial filing in other matters is a Scheduling Statement that is normally filed. The proposed rule essentially confouns the rule to the current practice under these divergent approaches to scheduling and should foster greater compliance with the intended operation of the rules.

Specific Recommendation

Rule 304 should be amended as follows:

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Rule 304. SCHEDULING OF CASES

5 Rule 304.02
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Scheduling Statement

(a) Except where the court orders the parties to use an Initial Case Management 8 Conference ("ICMC"), Wwithin 60 days after the initial filing in a case, or sooner if the Scheduling Statement court requires, the parties shall file an 9 that substantially conforms to the form developed by the state court administrator. 10 (b) In cases where the court orders the parties to use an Initial Case Management 11 Conference the parties shall comply with the order issued by the court as to what form to 12 submit, its due date due, and whether it should be filed or submitted to the court without 13 filing 14
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Rule 304.03 Scheduling Order (a) When issued. Within thirty days after the expiration of the time set forth in Rule 304.02 for filing an Initiat-Ease Management Scheduling Statement, the court shall enter its scheduling order. The court may issue the order after either a telephone or in court conference, or without a conference or hearing if none is needed.
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Advisory Committee Comment-2013 Amendment The amendments to rules 304.02 & .03 recognize that different districts and counties use difference processes for scheduling family law matters. Rule 304.02 is amended to rename the Initial Case Management Statement (formerly known as the Informational Statement) as the Scheduling Statement, This change is intended to make clear the distinction between it and the Initial Case Management Conference (ICMC) Data Sheet used in the many counties that hold Initial Case Management Conferences (ICMCs) and find them useful tools in managing their cases. Pursuant to Judicial Branch Policy 520,1 IV, the ICMC Data Sheet is not to be filed with the court, but is provided to the court in advance of the ICMC to assist the court in preparing for and holding the ICMC. Further information on the ICMC process, if in use in a particular court, may be obtained on the individual court's websites, which may be accessed through the state court webs ite,
www.mncourts.gov .

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The Scheduling Statement is formally filed with the court within 60 days of filing of the case. The court's management of the case from and after the ICMC ensures the case is concluded in a timely manner, alleviating the necessity of filing a Scheduling Statement. In counties that do not utilize ICMCs as part of case management, the filing of the Scheduling Statement will assist the court in scheduling appropriate court appearances to conclude the ease in a timely manner.

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MARK R. ANFINSON
ATTORNEY AT LAW LAKE CALHOUN PROFESSIONAL BUILDING 3109 HENNEPIN AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55408 612-827.5611 FAX 612-827-3564 mrattfinson@lawyersofminnesota,com

TO:

General Rules Advisory Committee

FROM: Mark R. Anfinson RE: Comments of News Media Petitioners Regarding Cameras in Courts Pilot Project Court File No. ADM 09-8009

DATE: September 16, 2013 Introduction This Memorandum summarizes the views and conclusions of the state's news media organizations (the Petitioners in this proceeding) about experience accumulated during the course of the Supreme Court's recently concluded pilot project on audio and video coverage of civil actions in district court. The pilot was of course established and proceeded according to the terms of Orders issued by the Supreme Court on March 11, 2011and April 21, 2011. In essence, the Court amended the governing rules so as to permit electronic courtroom coverage in certain civil matters subject only to the discretion of the trial court judge. Because the pilot was limited to civil actions generally, and because even many types of civil matters were excluded from the pilot (those involving child custody,
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marriage dissolution, juvenile, child protection, paternity, civil commitment, and orders for protection) the practical result was that no substantial number of hearings or trials occurred during the pilot period that were identified by journalists as having the kind of broader public interest warranting the time and resources required for electronic coverage. The reality continues to be that relatively few civil actions are imbued with the kind of widespread community concern or impact that journalists will define as newsworthy, and fewer yet reach a courtroom setting that would permit electronic coverage at all. Thus the total quantity of information about such coverage collected during the pilot project was not especially large. Further inhibiting the number of cases where electronic coverage occurred was (a) the fact that scheduling for civil hearings and trials is often variable and complicated and that a substantial majority of civil actions settle before key hearings or trials occur; and that (b) over the past several years there has been a reduction in news media resources available for coverage of court proceedings of all kinds. t Nonetheless, Petitioners can offer the following observations about their experience with the pilot project. 1. Number of Requests; Disposition. It cannot be stated with certainty how many requests for audio and video coverage actually occurred statewide during the pilot project, because there was no reporting mandate in place and no single entity through

It should be noted that in the substantial majority of states which do allow relatively expansive audio and video coverage of trial court proceedings, coverage of civil matters is also fairly infrequent for the reasons stated above; in other words, the limited electronic coverage of civil proceedings by news media organizations that occurred during the Minnesota pilot is by no means unique to Minnesota or to the pilot.
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which all such requests were made. However, there is enough data to indicate that during the course of the pilot project there were probably no more than 20-25 requests for electronic coverage of civil court proceedings submitted to trial court judges. Of these requests, it appears that the presiding judge permitted some degree of coverage to occur in approximately half of the cases. One interesting sidebar in this context is that I am not aware of any requests for electronic coverage made by anyone not affiliated with a news organization. 2. Types of Proceedings. Nearly all of the requests for electronic coverage related to some type of motion hearing or summary procedure. These included summary judgment motions, motions for temporary injunctive relief, motions for post-trial relief, and housing court actions. Again, though, there simply were not enough total requests for coverage to permit any useful generalizations beyond the foregoing about the specific kinds of proceedings that media organizations sought to cover. 3. Cases where Requests were Denied. Similarly, in cases where the judge denied a request for coverage, the data is again too limited to generalize about any pattern that can be distilled from the denials. In a number instances, the court evidently concluded that coverage would simply not be procedurally workable rather than that the request triggered any concern about the impact of the coverage itself (for example, in one case the judge concluded that there were physical limitations in the courtroom, and in another that the scheduled hearing was going to be used as a settlement conference in chambers). In another instance the request for electronic coverage was denied due to ambiguity in the rules as to whether the hearing fell within the prohibition on coverage of cases involving
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sex crimes. In only one case that I collected data on was there some real mystery about why the judge rejected audio/video coverage, and that was a request by Minnesota Public Radio in August 2013 to record audio only in a Washington County trial involving whistleblower claims that did not appear to have any pervasive witness or evidentiary concerns (this was also one of the few if not the only request made during the pilot for coverage of an actual trial). 4. Response of Trial Court Judges to Pilot Project. During the course of the pilot project, there was, unsurprisingly, some variation that emerged in judicial attitudes about requests for audio/video coverage. However, few if any trial court judges who I dealt with (or was told about by my clients) expressed hostility to audio and video coverage or exhibited an unwillingness to consider requests for coverage in an open minded fashion. Indeed, a number of judges expressly embraced the goals of the pilot project and the benefits of assessing the potential impact and value of audio/video coverage. For example, in response to one of the first requests made during the pilot, Judge Frederick Grunke in Stearns County, despite receiving a forcefully expressed written objection to electronic coverage of a post-verdict hearing from an attorney in the case, granted the request of the St. Cloud Times and WCCO-TV to have cameras at the hearing, and issued a thoughtful memo explaining his reasoning. A copy of his memo (Froseth v. Avon State Bank, Stearns County District Court File No. 73-CV-10-923, March 7,2012), is submitted with this Memorandum. More broadly, the entire bench in Stearns County generally viewed requests for electronic coverage favorably during the pilot project. Similarly, a number of judges in other counties (Ramsey County in particular) also welcomed
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opportunities for experimenting with such coverage; Chief Judge Kathleen Gearin and Judge Margaret Marrinan in Ramsey County were noteworthy in this regard. 2 5. Objections from Attorneys. In those cases where requests for electronic coverage were made, it was fairly common for at least one of the attorneys involved to formally object. Subject to the previously noted difficulty of generalizing from the limited data set, however, in most such instances the trial judge seemed to recognize that he/she had sole discretion as to whether to permit electronic coverage and on what conditions, and that while the objections of attorneys should be carefully considered they were not controlling. Judge Grunke's memorandum referred to above is a good example of this. 6. Handling Requests During the Pilot. Procedurally, the pilot project relied to a significant extent on the use of so-called media coordinators acting as a liaison between journalists requesting electronic coverage and the staff of the court. I personally served as media coordinator for the Twin Cities metro counties during the pilot and participated directly in a number of requests for coverage. Again, subject to the disclaimer about limited data, the media coordinator system seemed to work quite well, and the judges and court staff were invariably responsive and helpful when fielding requests for audio/video coverage. In addition, as the pilot developed, a few judges became sufficiently comfortable with news media requests that they dispensed with formal procedures routed

2 A program was presented several months ago on experience with the pilot project, which included a panel with district court judges. A recording is available online at http://www.theuptake.org/2012/10/24/experimenting-with -cameras-in-minnesota-courtrooms/.

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through the media coordinator, and were instead willing to work directly with journalists on a fairly informal basis, which enhanced the efficiency of the process. 7. Complaints, Concerns, Problems with Audio/Video Coverage. As noted, there simply was not enough data acquired during the pilot project to support any grandiose generalizations about the impact, benefits, or problems of audio/video coverage in the trial courts. Nonetheless, it is notable that in those cases where audio/video coverage was permitted during the pilot, there were virtually no complaints, problems, or concerns identified after the fact by any of the participants that have ever been brought to my attention, whether by the presiding judge, court staff, the attorneys involved, parties, or the journalists engaged in the coverage. Often, the reactions were very much the opposite, emphasizing how routine and unexceptional the experience turned out to be. 8. Petitioners' Provisional Conclusions. In the view of the news media petitioners, the information collected during the pilot project at minimum supports two specific conclusions: a. First, the pilot should be extended in some form so that more data can be accumulated about the impact of audio and video coverage in the trial courts, especially given the almost complete absence of any problems or concerns that were identified with respect to that coverage during the pilot. b. Second, the pilot should be somewhat expanded to include a broader range of proceedings, which would produce more information about audio/video coverage. In particular, this expansion should include portions of the spectrum of criminal proceedings, which (based on experience around the country) the news media are much
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more likely to cover by electronic means than they are civil proceedings. The criminal proceedings where coverage might be allowed could be limited to those settings where the concerns previously expressed by the Court (and this committee) would be minimized or largely absent, such as arraignments, pretrial hearings, and sentencingsin other words, situations where witnesses and jurors would not be before the court.
Conclusion

Petitioners believe the case remains strong for allowing expanded audio and video coverage of Minnesota's trial courts, and that nothing disclosed by the pilot project in any way conflicts with this belief. Much more extensive experience with electronic coverage around the country also continues to accumulate, and it is becoming increasingly evident that the potential benefits to the general public and to the court system of allowing expanded audio/video coverage would seem to outweigh the detriments. The almost complete absence of any evidence suggesting an adverse impact on the administration of justice caused by electronic coverage in the many states where it is routinely allowed including Wisconsin, Iowa, and North Dakotaremains incontrovertible and striking. Furthermore, since the Minnesota Supreme Court began its current assessment of this issue in Minnesota, additional initiatives expanding electronic coverage or experimenting with it have been pursued in other states, including Utah, South Dakota, Cook County Illinois, Kansas, and the federal courts. Such coverage does not only foster community understanding and catharsis, but it helps to dispel what seem to be increasingly common public misconceptions about the judicial system (notably among younger people) promoted by entertainment
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programming such as Judge Judy, or casual accusations that the judicial system is politically tainted. Yet few citizens who have actually observed a judicial proceeding walk away from it with any doubt that it is an impressive and positive experience. Expanded electronic coverage will permit a far greater percentage of Minnesota's residentsthe vast majority of whom never enter a courtroom themselvesto better appreciate this. DATED: September 16, 2013

s/Mark R. Anfinson Mark R. Anfinson Attorney for Petitioners Lake Calhoun Prof. Building 3109 Hennepin Avenue South Minneapolis, MN 554008 Phone: 612-827-5611 Atty. Reg. No. 2744

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