UFLTV’s ARGUMENTS CHALLENGING THE FACTUAL AND LEGAL ASSERTIONS OF THE COURT’S RULING OF APRIL 6, 2016

Ruling on Request for Electronic Media Request

UFLTV's arguments challenging the factual and legal assertions of the court's ru Ii n

The Court is in receipt of a request for electronic media coverage, originally filed by Utah Family Law TV on March 24, 2016. Petitioner filed his objection that same day. Utah Family Law TV's reply was received by the Court on March 24, 2016. The Court granted the media request subject to limitations intending to make oral findings in support of those limitations from the bench at the time of the hearing, as is permitted by the rule. See CJA Rule 4-401.01(2)(C). However, the parties stipulated to a continuance of that hearing. After the new

Utah Family Law TV has not engaged in

ex parte communications with the court. It is

not possible for Utah Family Law TV engage

in ex parte communications with the court

because ex parte communications with the

court are communication between counsel

—ui r

APR 0 72016 4TH D'S TCT

STATE OF UTAH UTAH COUNTY

Utah Family Law TV (Eric K. Johnson, Editor in Chief) 2084 Crystal Avenue Salt Lake City, Utah 84109 Tel. No.: (801)901-8183 E-mail: utahfamilylawtv©gmail.com

IN THE FOURTH JUDICIAL DISTRICT COURT COUNTY OF UTAH, STATE OF UTAH, AMERICAN FORK DEPARTMENT

BRIAN WOLFERTS, UFLTV'S ARGUMENTS CHALLENGING THE FACTUAL AND LEGAL ASSERTIONS

Petitioner, OF THE COURT'S RULING OF APRIL 6, 2016

vs. Case No.: 074100003

SONJA WOLF ERTS, Judge: Christine S. Johnson

Respondent. Commissioner: Thomas R. Patton

Please note that for the sake of easy reference and clarity, that a verbatim restatement of the court's April 6, 2016 "Ruling on Request for Electronic Media Request" is provided, single-spaced, in the left column below, with Utah Family Law TV's disputing arguments appearing, double-spaced, in the right column.

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date was scheduled, Utah Family Law TV submitted a renewed request for media coverage on March 29, 2016. That same day, Petitioner filed his response, requesting that the Court grant the request subject to the same limitations as before. Utah Family Law TV submitted a reply on April 4, 2016. Because the Court's previous attempt to resolve this issue from the bench has resulted in repeated ex parte communications from Utah Family Law TV, the Court now issues written findin.s.[1]

[1] Utah Family Law TV has taken the position that its written filings and repeated requests to meet with the Court outside the presence of the parties are not ex parte. Indeed, the first line of its reply states "THIS IS NOT EX PARTE COMMUNICATION" (capitalization and emphasis in original). The Court recognizes that Utah Family Law TV is not a party to this case. Notwithstanding, it has filed a request which directly affects the interests of the parties. One party has objected to that request. It is decidedly improper for a court to entertain ongoing legal argument from Utah Family Law TV without providing the parties notice or an opportunity to be heard.

UFLTV's arguments challenging the factual and legal assertions of the court's ruling and the court when opposing counsel is not

present." (Black's Law Dictionary (10th ed.

2014)). UFLTV is neither counsel nor a party

to these proceedings.

It is internally inconsistent of the court to

find (correctly) that "that Utah Family Law TV

is not a party to this case" but then conclude

that UFLTV's electronic media coverage

request (EMCR) somehow necessitates

notice to the actual parties to the case and

an opportunity to engage in "legal argument"

over the EMCR.

The court's assertion that "[l]t is

decidedly improper for a court to entertain ongoing legal argument from Utah Family Law

TV without providing the parties notice or an opportunity to be heard," is legally unsound.

UCJA Rule 4-401.01:

1) neither requires nor authorizes a court to give parties to public court proceedings

notice of an electronic media coverage request;

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UFLTV's arguments challenging the factual and legal assertions of the court's ruling

2) neither requires nor authorizes a court to permit parties to public court proceedings to

object to or otherwise comment on EMCRs;

3) neither requires nor authorizes a court to hold hearings on an EMCR; and

4) neither requires nor authorizes courts to order news reporters to "serve" parties to

public court proceedings with copies of communications between the reporters and the

court to which an EMCR is submitted.

Efforts on the part of a news reporter to communicate directly with a court regarding a

mere request for electronic media coverage are on their face not ex parte communication;

indeed, the court itself stops short of making such an express finding, and UFLTV asserts

that the reason why is because the court itself concedes the point.

Having reviewed the submissions of the parties and Utah Family Law TV, and being advised of the applicable law and the governing rules, the Court now grants the media request in part subject to limitations, as follows:

The above-captioned matter is presently scheduled for a temporary restraining order hearing on April 13, 2016. Utah Family Law TV has filed a request for electronic media coverage for court proceedings, petitioning to make a video recording of this hearing which would thereafter be posted for public viewing on Utah Family Law TV's YouTube channel. Rule 4-401.01 presumes that electronic media coverage of any public hearing is permitted, provided that a news reporter files a request at least one business day before the proceeding. See CJA Rule 4-401.01(3)(A). Utah Family Law TV has filed a timely request. However the presumption in favor of media coverage may be overcome and such coverage may be restricted, or denied altogether, when

Despite the court 1) noting:

'the presumption in favor of media coverage may be overcome and such coverage may be restricted, or denied altogether, when balancing public policy in favor of media access against 'the right of parties to a fair trial, personal privacy and safety, the decorum and dignity of proceedings, and the fair administration of justice[,]"

and 2) citing the criteria of UCJA 4-401.01

that the court is required to consider when it

receives an electronic media coverage

request, conspicuously absent from the

court's ruling of April 6, 2016 are findings

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balancing public policy in favor of media

decorum and dignity of proceedings, and the fair administration of justice." In conducting this balancing, the rule directs that the court consider the following:

access against "the right of parties to a fair trial, personal privacy and safety, the 4-401.01.

whether there is a reasonable likelihood that electronic media coverage will prejudice the right of the parties to a fair proceeding; whether there is a reasonable likelihood that electronic media coverage will jeopardize the safety or well-being of any individual; whether there is a reasonable likelihood that electronic media coverage will jeopardize the interests or well-being of a minor; whether there is a reasonable likelihood that electronic media coverage will constitute an unwarranted invasion of personal privacy of any person; whether electronic media coverage will create adverse effects greater than those caused by media coverage without recording or transmitting images or sound; the adequacy of the court's physical facilities for electronic media coverage; the public interest in and newsworthiness of the proceeding; potentially beneficial effects of allowing public observation of the proceeding through electronic media coverage; and any other factor affecting the fair administration of justice. CJA Rule 4-401.01(2)(B).

Here, Petitioner has objected to the present media request, based upon the interests of the minor children involved, and based upon the privacy interests of domestic cases generally. [2]

UCJA Rule 4-401.01:

1) neither requires nor authorizes a court

to give parties to public court

proceedings notice of an electronic media coverage request;

2) neither requires nor authorizes a court to permit parties to public court proceedings to

object to or otherwise comment on EMCRs; and

3) neither requires nor authorizes a court to hold hearings on an EMCR.

[2] Petitioner has also registered an Undisputed. objection as to whether Eric K. Johnson, Utah Family Law TV"s editor-in-chief, is a "news reporter" within the meaning of Rule 4-401.01. While Utah Family Law TV's audience on YouTube.com is quite limited, it nevertheless appears to exist for the primary purpose of disseminating information regarding family law. Mr. Johnson thereby meets the definition of a "news reporter." See CJA Rule 4-

based upon and that comply with UCJA Rule

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401 .01(1 )(D). Accordingly, Petitioner's objection on this point warrants no further discussion.

Petitioner correctly notes that CJA Rule

Otherwise stated, UCJA Rule 4- 4-202.02(4)(B)(i) classifies documents in domestic matters as private. It is true that

202.02(4)(B)(i) is immaterial and irrelevant to

the court record of public domestic hearings is specifically exempted from this

the argument, and while issues addressed in

classification, making the above-captioned temporary restraining order hearing a public domestic cases can be private and sensitive hearing which is subject to a public media request. Nevertheless, this provision does

in nature, it does not follow that all domestic

demonstrate that the issues being addressed in domestic cases can be relations proceedings involve private, private and sensitive in nature.

sensitive information. UCJA Rule 4-401.01

does not allow courts to deny or restrict coverage merely because domestic cases can be

private and sensitive in nature. UCJA Rule 4-401.01 permits denial or restriction of

coverage only if the court can and does make particularized findings—as opposed to mere

generalized views or preferences—articulating reasons sufficient to prohibit or restrict

electronic media coverage (UCJA Rule 4-401.01(2)(C) and (D).

Such is the case here. Petitioner alleges that Respondent has kidnaped the minor children, denying him access to them for nearly a year and a half. The children have now been found, Respondent is facing custodial interference charges, and Petitioner describes that they are currently being held in a secure facility for their protection. Through his present motion, Petitioner is requesting that the Court prohibit Respondent from exercising her parent time while the minor children undergo reunification therapy.

Respondent's custodial interference charges have garnered some media attention, and this brings a level of newsworthiness to this case as

With respect to the court, UFLTV finds it

somewhat disingenuous of the court to find

and conclude elsewhere in its ruling that "the

upcoming temporary restraining order

hearing does not directly involve the

custodial interference charges which have

been reported," yet state that:

Petitioner alleges that Respondent has kidnaped the minor children,

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contemplated by Rule 4-401.01. Notwithstanding, the upcoming temporary restraining order hearing does not directly involve the custodial interference charges which have been reported. Rather, it involves consideration of the best interests of the children as they begin reunification with their father. Testimony from the minor child's therapist may well be offered. Testimony regarding therapy, particularly the therapy of a child, is of a truly sensitive nature. Thus, media coverage of the present hearing may "jeopardize the interests or well-being of a minor' and create "an unwarranted invasion of personal privacy" for the children involved. Thus, the particular facts and circumstances of this case present significant interests which, in the judgment of this Court, outweigh the interest Utah Family Law TV may have in unfettered media access.

Based upon the foregoing, limitation of media coverage of this hearing is proper. The hearing remains a public hearing, and media may attend and report on what has occurred. In this way, the public interest in transparency in court proceedings is protected. However, Utah Family Law TV is limited to still photography. This restriction is intended to allow the Court to make findings regarding the best interests of the children by receiving full and accurate testimony, unfiltered by any concern that such testimony will be posted on YouTube.

UFLTV's arguments challenging the factual and legal assertions of the court's rulin

denying him access to them for nearly a year and a half.

Respondent is facing custodial interference charges,

Through his present motion, Petitioner is requesting that the Court prohibit Respondent from exercising her parent time while the minor children undergo reunification therapy.

Clearly, the upcoming TRO hearing is at

least obliquely, if not directly, related to

the custodial interference charges, as

the court itself plainly acknowledges.

Even /f the upcoming TRO hearing

had nothing to do with custodial

interference, that fact clearly does not

rob the TRO hearing (in which 'Petitioner

is requesting that the Court prohibit

Respondent from exercising her parent

time while the minor children undergo

reunification therapy") of newsworthiness

in its own right.

Moreover, given the history and context of the Wolferts divorce case and news

coverage of same, "consideration of the best interests of the children as they begin

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reunification with their father" is also inherent y newsworthy, as that subject has a

strong and direct nexus to the issues that make the overall case newsworthy.

That a divorce case involves children is hardly reason alone to restrict media

coverage to still photography (of all things). UCJA Rule 4-401.01 certainly contains no

prohibitions or restrictions on coverage merely for cases treating "consideration of the

best interests of the children.'

By the same token, UCJA Rule 4-401.01 does not prohibit or restrict coverage

because "[t]estimony from the minor child's therapist may well be offered (emphasis

added).

Likewise, the court's statement that "[t]estimony regarding therapy, particularly the

therapy of a child, is of a truly sensitive nature" is neither accurate nor inherently true.

Accordingly, when the best the court can do is find, as a true matter of fact, that a

therapist 'may" testify without having any idea as to the nature of the—at best

possible—testimony the court's conclusion that "media coverage of the present hearing

may 'jeopardize the interests or well-being of a minor' and create 'an unwarranted

invasion of personal privacy' for the children involved" is neither true nor (most

importantly) a basis for denying or restricting electronic media coverage because UCJA

Rule 4-401.01 permits a court to deny or restrict coverage only if the court finds:

• a reasonable likelihood that electronic media coverage will prejudice the right of the parties to a fair proceeding;

• a reasonable likelihood that electronic media coverage will jeopardize the safety or well-being of any individual;

• a reasonable likelihood that electronic media coverage will jeopardize the interests or well-being of a minor;

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• a reasonable likelihood that electronic media coverage will constitute an unwarranted invasion of personal privacy of any person;

• electronic media coverage will create adverse effects greater than those caused by media coverage without recording or transmitting images or sound;

• that the court's physical facilities are the inadequate for electronic media coverage;

• no (or perhaps insufficient?') public interest in and newsworthiness of the proceeding;

• no (or perhaps insufficient?2) potentially beneficial effects of allowing public observation of the proceeding through electronic media coverage; and/or

• any other factor affecting the fair administration of justice.

The court has made no such findings.

In fact, the court has cited no "particular facts and circumstances of this case," but

has patently indulged in speculation and supposition as the basis for restricting

unfettered sound-and-visual coverage of the public court proceedings.

Thus, in the absence of findings of particularized fact, restriction of media coverage

is demonstrably improper. The court cannot under UCJA 4-401.01 restrict coverage of

the public court proceedings (which are presumed open to unrestricted electronic

media access) to still photography.

1 UFLTV notes that a way to ensure no public or "insufficient" public interest in a public court proceedings is to deny or heavily restrict news media coverage of public court proceedings to the point that the public cannot know, and thus not have any interest in, the proceeding. There can be little to no news of value of court proceedings when courts prohibit and restrict reporting of court proceedings.

2 Another way to ensure no or "insufficient" potentially beneficial effects of allowing public observation of the proceeding through electronic media coverage is to deny or heavily restrict news media coverage of public court proceedings by, for example, limiting coverage in the era of ubiquitous sound-and-visual media to still photography (which is so primitive as to not require electronic equipment); the upshot being that the benefits to the public of sound-and-visual electronic media coverage are virtually non-existent.

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For the court to conclude that "[i]n this way [i.e., restricting coverage to still

photography], the public interest in transparency in court proceedings is protected" is

not only erroneous, it is, candidly, insulting.

To suggest—in an era when anyone with a smartphone can (and does, with

regularity) report both sensational and more mundane news—that news coverage of a

public court proceeding ( of which the court itself makes an audio recording of the

proceedings that is public record) by sound-and-visual means will somehow prevent

"full and accurate testimony" is untenable.

Court security is instructed to monitor Utah Family Law TV to insure that this limitation is strictly followed. Utah Family Law TV representatives are instructed to conduct themselves professionally, and refrain from the type of disruptive conduct which previously necessitated intervention of security officers.

SO ORDERED.

This part of the court's ruling is, sadly, the

least accurate and perhaps the most unfair

part of its ruling.

The court ostensibly made findings and

conclusions (i.e., that UFLTV

representatives engaged in "disruptive conduct which previously necessitated intervention

of security officers") without 1) citation to any evidence in the record; or 2) providing UFLTV

notice of any accusations against it and without giving UFLTV an opportunity to meet and

defend itself against the (demonstrably false) accusations. Such treatment by a court is

chilling.

A popular pretext for denying or restricting coverage is to "find" that the news reporter is,

was, or could be "disruptive" (UCJA 4-401.01 (4)(F). Anticipating (correctly) that such might

be the situation with the instant case, UFLTV's reporter recorded his public activities at and

in the courthouse, so that if (as he feared) he was accused of being "disruptive" he could

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prove the allegations to be trumped up and false. The audio recordings of UFLTV's reporter

are available for review through Utah Family TV at this link (that way no one need worry

about exposure to potential computer viruses through a CD):

https://www.youtube.com/watch?v=Cbeb24zi 00

These recordings show that the accusations against the UFLTV reporter being "disruptive"

to the point that it 'necessitated intervention of security officers" are not merely incorrect or

mere 'misunderstandings," they are based upon outright lies to the court.

Without question 1) UFLTV disrupted nothing; and 2) UFLTV's reporter conducted

himself professionally at the courthouse and in his dealings with court personnel.

Accordingly, UFLTV poses no danger to anyone or anything related to the instant case.

There is no need—and no justification—for the court to direct "Court security ... to monitor

Utah Family Law TV" or for subtle discrimination against or intimidation of UFLTV.

DATED April 7, 2016. Utah Family Law TV

Is! Eric K. Johnson Eric K. Johnson, Editor in Chief/Reporter

CERTIFICATE OF DELIVERY I hereby certify that on April 7, 2016, I caused to be delivered a true and correct copy

of the foregoing to the following persons at the following times and by the following means:

By U.S. Mail and email:

Kathleen McConkie: McConkie Law Offices 110 North Main Street Bountiful, UT 84010 Email: kathleen©kmclaw.net

Sandra N. Dredge, sandra©dredgelaw.com

Jarom Bishop BISHOP LAW, P.C. 204 Historic 25th Street Ste. 202 Ogden, Utah 84401 Email: jarom©jjbishoplaw.com

Marian H. Ito Utah Attorney General Division of Child and Family Support 150 E Center, Ste 2100 Provo, UT 84606 Email: [email protected]

Is! Eric K. Johnson

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