DAR File No. 38645

Administrative Services, Records Committee

Rule R35-5

Subpoenas Issued by the State Records Committee

Notice of Proposed Rule

(Amendment)

DAR File No.: 38645
Filed: 06/23/2014 03:31:00 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the rule is to outline the procedures and the justification for the Committee to issue subpoenas given that hearsay is available before the Committee. Changes to the rule are for consistency in language and capitalization and do not substantively change the rule.

Summary of the rule or change:

Changes to the rule are for consistency in language and capitalization and do not substantively change the rule. The procedures for a petitioner to initiate a request for a subpoena stay the same. The Committee Chair shall review each request for a subpoena and grant or deny the request within three business days. The requesting party may obtain a signed but otherwise blank subpoena form from the Executive Secretary. The requesting party shall fill out the form and have it served upon the proposed witness at least seven days prior to a hearing. A subpoenaed witness may file a motion to quash the subpoena with the Executive Secretary. Terms used in this rule are changed for consistency. The rule itself is not changed.

State statutory or constitutional authorization for this rule:

• Section 63G-3-402
• Subsection 63G-2-502(2)(a)
• Subsection 63G-3-601(3)
• Article IV

Anticipated cost or savings to:

the state budget:

The state budget is not affected by this rule. The rule outlines the issuance of subpoenas by the State Records Committee. Any cost are borne by a person requesting a subpoena and not by a governmental entity.

local governments:

Local government is not affected by this change in the rule. No cost is associated with the changes in wording to this rule. The procedures remain unaltered in the request for subpoenas.

small businesses:

Small business is not affected by a change in this rule. No cost is incurred to small business by this rule. Changes in the rule are for consistency in style. The procedures for requesting and obtaining subpoenas is not changed.

persons other than small businesses, businesses, or local governmental entities:

No person is affected by the change in the rule. Only people who are participating in hearings before the State Records Committee and want to subpoena witnesses could be affected by this rule. The changes to this rule are in format only and no costs to governmental entities are involved.

Compliance costs for affected persons:

There is no cost associated with compliance to this rule or to the change. The changes in this rule do not affect the way a person goes about requesting a subpoena. The rule is changed only in capitalization. No compliance costs follow from these changes.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no impact on businesses. The process of requesting a subpoena has no cost impact on businesses as a result of these changes in consistency of language and capitalization.

Kimberly K. Hood, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Administrative Services
Records Committee
ARCHIVES BUILDING
346 S RIO GRANDE
SALT LAKE CITY, UT 84101-1106

Direct questions regarding this rule to:

• Susan Mumford at the above address, by phone at 801-531-3861, by FAX at 801-531-3867, or by Internet E-mail at smumford@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/16/2014

This rule may become effective on:

08/25/2014

Authorized by:

Lex Hemphill, Chair, State Records Committee

R35. Administrative Services, Records Committee.

R35-5. Subpoenas Issued by the Records Committee.

R35-5-1. Authority and Purpose.

In accordance with Subsection 63G-2-403(10), Utah Code, this rule intends to establish the procedures for issuing subpoenas by the State Records Committee.

 

R35-5-2. Subpoenas.

(1) In order to initiate a request for a subpoena, a party shall file a written request with the [chair of the state records c]Committee Chair at least 14 days prior to a hearing. The request shall describe the purpose for which the subpoena is sought, and state specifically why, given that hearsay is available before the [state records c]Committee, the individual being subpoenaed must be present.

(2) The Committee [c]Chair [of the state records committee ]shall review each subpoena request and grant or deny the request within three business days, based on the following considerations:

(a) a weighing of the proposed witness' testimony as material and necessary; or

(b) a weighing of the burden to the witness against the need to have the witness present.

(3) If the Committee [c]Chair grants the request, the requesting party may obtain a subpoena form, signed, but otherwise [in ]blank, from the [e]Executive [s]Secretary[of the state records committee]. The requesting party shall fill out the subpoena and have it served upon the proposed witness at least seven business days prior to a hearing.

(4) A subpoenaed witness shall be entitled to witness fees and mileage reimbursement to be paid by the requesting party. Witnesses shall receive the same witness fees and mileage reimbursement allowed by law to witnesses in a state district court.

(5) A subpoenaed witness may file a motion to quash the subpoena with the [e]Executive [s]Secretary at least three business days prior to the hearing at which the witness has been ordered to be present, and shall simultaneously transmit a copy of that motion to the parties. Such motion shall include the reasons for quashing the subpoena, and shall be granted or denied by the Committee Chair based on the same considerations as outlined in Subsection R35-5-2(2). As part of the motion to quash, the witness must indicate whether a hearing on the motion is requested. If a hearing is requested, it shall be granted. All parties to the appeal have a right to be present at the hearing. The hearing must occur prior to the appeal hearing, and shall be heard by the [c]Committee [c]Chair. The hearing may be in person[,] or by telephone, as determined by the [c]Committee [c]Chair. A decision on the motion to quash shall be rendered prior to the appeal hearing.

(6) If the Committee [c]Chair denies the request for subpoena, the denial is final and unreviewable.

 

KEY: government documents, state records committee, records appeal hearings

Date of Enactment or Last Substantive Amendment: [March 4, 2005]2014

Notice of Continuation: June 3, 2014

Authorizing, and Implemented or Interpreted Law: 63G-2-502(2)(a)