Rules of Civil Procedure

OOPS, accidentally posted this previously in the comments section for criminal procedure, sorry.
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I am concerned about the rewrite of URCP 64B dealing with replevin. The new law is terse, giving very basic information about when a writ of replevin may be ordered. The current version of 64B gives a great deal of guidance on procedure and enforcement, much of which appears to be covered in new rule 64. However, I cannot find any instructions dealing with retrieval of the replevined property similar to what is currently noted in 64B(h)(1), which gives the officer the authority to enter a building by force if necessary, and seize the wrongfully held property. This is a very important power for the officer to have in the many cases where deadbeats refuse compliance with court orders. This issue needs to be addressed in the new rule.

The changes proposed for Rules 64 through 69 are a decided improvement. The proposed changes bring organization, cogency and a plain English approach that will be appreciated by judges and attorneys that do not specialize in collections law. Thank you to those involved for your efforts.
A few comments with respect to proposed Rule 64D – Writ of garnishment: First, proposed subsection (h)(1) nullifies the requirement that a reply to a garnishee’s answer to interrogatories be filed within ten days. The current rule states that a request for a hearing to challenge a garnishee’s answers must be filed within ten days or the right to a hearing is waived and the garnishee’s answers are deemed correct and binding. Utah R. Civ. P. 64D(h)(i) and 64D(h)(ii). The proposed rule contains the same proscription but then adds the qualification “but the court may deem the reply timely if filed before notice of sale of the property or before the property is delivered to the plaintiff.” This qualification gives the Defendant an opportunity to delay at the expense of the Plaintiff and at the expense of judicial economy. For example, under this proposal the court could hold a full evidentiary hearing to resolve a dispute between the Plaintiff and garnishee and order the property delivered to Plaintiff. So long as the Defendant were to file a reply before that property is delivered, Defendant is entitled to a new evidentiary hearing. Such a process is inefficient for all involved. The time limit requiring a response from a Defendant as contained in the current rule should remain in effect.
In addition, proposed subsection (h)(2) contains no time frame for when an evidentiary hearing should occur in the event a reply to the garnishee’s answers is filed. The current rule requires a hearing to be held within ten days of a request for a hearing. Utah R. Civ. P. 64D(h)(iii). This time limit should remain in effect. Matters of collection are frequently the conclusion of protracted, expensive disputes and individuals that have succeeded in obtaining a judgment should be assisted by the judicial system in enforcing that judgment with all dispatch.
Finally, regarding proposed subsection (j)(5), the provision should be changed to read: “A garnishee may deduct from the property any claim [that is fixed and liquidated at the time garnishment is served] against the plaintiff or defendant.” In circumstances where a garnishee, such as an institutional trustee, charges significant administration fees and the dispute over the garnished property is protracted, the new rule as proposed would allow the garnishee to collect those fees over the course of the dispute at the expense of Plaintiff. The suggested language would allow the garnishee to collect all fees to which it is entitled at the time of garnishment but no more. Such a provision will also help to ensure that the garnishee’s role in the garnishment proceeding is neutral and disinterested.

The proposed amendment to Rule 63 fails to provide a remedy to a party who believes a judge is not capable of being fair when that party’s opinion has been reinforced by an appellate court reversal and remand. By leaving total discretion in the trial court, the proposed rule change seems to assume that the problem of judicial bias is one of perception only and does not really exist. Real or not, the rule should give more credence to the perception of a party who has had a judge reversed and place discretion in the hands of that party, not the judge who’s thinking might be compromised. The proposed rule should assume that judicially incapacitating bias, though rare, does exist and provide a real remedy.
The rule should acknowledge that only parties, not judges, have a vested interest in the outcome of a case. The rule should subordinate all concerns for judicial pride to the paramount concerns of justice, which must not only be done, but be perceived to be done as well, if the maximum social good is to be achieved and the judiciary is to fulfill its role in our democracy.
The rule also seems to be unduly concerned about the time and effort needed to reeducate a new judge in a case after remand. Cases are often reassigned to new judges in this state for much more mundane reasons than protecting the integrity of the judicial process, without serious adverse consequences. Some districts have rotating calendars for example. Few cases are so complex that a new judge cannot be brought up to speed in due course. The appellate courts must be “brought up to speed” in every case. A new trial judge would have the luxury of hearing evidence anew if he or she wished. It can take a long time for a case to return to a trial judge after remand. Remembered half-truths and half remembered truths in the mind of the original trial judge may do more harm than good.
The rule as it exists should be amended to give discretion to the prevailing party on appeal after remand to have a new judge assigned to the case upon exparte motion and without explanation. Remands are relatively uncommon. Such a simple rule will do much good for the public and judiciary, cause few significant inconveniences and no injustice.

The proposed change to Rule 63 (inviting a judge who has been reversed on appeal to consider recusing himself/herself) is a step in the right direction but not a big enough step.
The results of a recent survey of 3 separate groups of Utah trial attorneys show STRONG support for a rule change which would place the discretion in the hands of a successful appellant to have a remanded case heard by a judge other than the judge whose decision was found to have been erroneous.
In early January of 2003, attorneys who had appealed and won reversals in Utah cases within the preceding 3 years were sent a survey soliciting their views on this subject. They were asked whether they would favor, oppose or feel neutral about the adoption of a rule or statute which would give a successful appellant the right, exercisable at his or her option, to have the remanded case assigned to a new judge rather than the judge whose judgment or order was reversed, for the handling of the new trial or evidentiary hearing. 39 attorneys responded. 35 of them FAVORED such a measure (22 of them STRONGLY); Only 4 responded they would oppose it (only 2 “strongly”).
A similar survey was sent to members of the Utah Trial Lawyers Association. The results were overwhelmingly in favor of the measure (27 to 1).
The same survey was made available to attendees of the Annual Family Law Section Seminar on May 9, 2003. Of the 39 attorneys who responded, 34 FAVORED the rule change (17 of them “STRONGLY”); only 5 opposed it (only 1 of them “strongly”).
I have reviewed the actual survey results. They are available to anyone you wants to see them.
Those who desire a further change to the rule are not idle “whiners.” They are serious, competent practitioners who genuinely believe justice would more likely occur more frequently if such a rule were in place.
Newspapers reports indicate that certain U.S District Court judges in Utah often, if not invariably, recuse themselves after being reversed on appeal. (Judges Winder, Campbell and Kimball, to name 3). These judges are widely regarded as among the finest our state has ever had. If they thinks it’s a good idea, why isn’t it? If they suspect they either harbor bias or may be perceived as harboring bias sufficient to justify having another judge take over after reversal, shouldn’t they be presumed correct?
The opposition of state court trial judges to such a rule change should not be viewed as dispositive. Doctors as a whole oppose malpractice suits. That is no basis for abolishing medical negligence actions or for concluding that such suits do not lead to or encourage safer health care practices.
That the proposed rule change might slow things down or prove costly in less populated judicial districts should not be of paramount consideration. The goal isn’t efficiency; it’s justice.
The argument that the proposed rule might be abused makes little sense. Generally, a successful appellant wants justice. Perhaps there are some litigants who appeal solely for delay purposes. Those appellants are not likely to win their appeals. Those who win on appeal, it should be presumed, deserve to win on appeal …because a mistake was made against them at the trial level. They are usually those who genuinely want justice. If they are willing to endure whatever extra time it may take for a new judge to get “up to speed” on the case, why shouldn’t they be trusted to exercise their discretion responsibly?
Fairness and the perception of fairness should be paramount above all other considerations. Both would be served by the adoption of the suggested additional change to Rule 63.

I am an Assistant Attorney General with the Tax & Revenue Division of the Utah Attorney General’s Office. The currently proposed changes to the collection rules are an improvement. However, we believe a few additional changes would be helpful. We suggest the following changes and additions to the proposed changes to Rules 64, 64A, 64B, 64C, 64D, 64E, 66, 69A, 69B, and 69C of the Utah Rules of Civil Procedure.
1. Security
Proposed Rule 64(b) (Writs in General) (Security):
We propose that the State of Utah and its subdivisions be exempt from the security requirement for writs. The State of Utah, its subdivisions and the United States are already exempt from the security requirements for injunctions as set forth in the last sentence of current Rule 65A(c)(1). That sentence states as follows: “No such security shall be required of the United States, the State of Utah, or of an officer, agency, or subdivision of either; nor shall it be required when it is prohibited by law.”
Similar language could be added to proposed Rule 64 by adding subdivision (b)(4) after current subdivision (b)(3).
This change would also affect Rule 66 (Receivers) though the statement in subdivision 66(c) that security may be required in accordance with Rule 64.
2. Writ of Assistance
Proposed Rule 64(c) (Writs in General) (Inquiry and Orders in Aid of Writs):
We suggest that language similar to that found in current Rule 64B (Replevin), authorizing the sheriff and constable to enter a building or inclosure to retrieve property, be included in a new subsection 64(c)(4). The language would apply writs other than replevin, such as writs of execution. Our suggested language reads as follows:
If the officer has probable cause to believe that the property or any part thereof is concealed or withheld in a building or inclosure or access is otherwise blocked, the officer must publicly demand its delivery. If it is not delivered, he or she must cause the building or inclosure to be broken open or the objects blocking access removed, and take the property into his or her possession, and, if necessary he may call to his aid the power of the county. The plaintiff may also obtain a writ of assistance from the court upon application supported by an affidavit describing the property and the impediments blocking access to it. The writ of assistance shall authorize the officer to take such actions as described above in this paragraph, or such other reasonable actions as the court may describe, to allow the officer to take the property into his or her possession.
3. Garnishments
A. Proposed Rule 64D(h) (Garnishments) (Reply to answers; request for hearing:
We suggest that the reply to the garnishee’s answers and request for hearing be served upon the other party in addition to filing the original with the court and serving a copy upon the garnishee. We often receive notices of garnishment hearings without receiving the request for the hearing. We then have to independently obtain a copy of the request for hearing. Not all courts are willing to fax us a copy. This makes it difficult, if not impossible, to obtain a copy of the request prior to the hearing. This in turn hinders our ability to resolve garnishment objections and/or prepare for garnishment hearings.
This change can be made by adding the phrase “and the other party to the action” after the word “garnishee” in the first sentence of proposed Rule 64D(h)(1). The sentence would then read as follows: “The plaintiff or defendant may file and serve upon the garnishee and the other party to the action a reply to the answer and request a hearing.”
B. Proposed Rule 64(d)(3)(B) (Writs in General) (Limits on writs of garnishment).
We propose that the limit on one garnishment in effect at one time not apply to situations where the pre-existing garnishment is taking less than 25% of the defendant’s disposable earnings. This typically occurs where the first garnishment is an administrative one.
For example, under the current and proposed rules, an administrative student loan repayment garnishment could be taking 10% of the disposable income over a long period of time (administrative garnishments are not limited to 120 days) and other judgment creditors could be prevented from taking the remaining 15% of the defendant’s disposable income.
4. Combining Writs – Rule 64(d) Issuance of writ; service.
We propose that multiple judgments by the same plaintiff(s) against the same defendants(s) may be combined in a single post-judgment writ listing all of the judgment case numbers from the lowest to the highest number, with the lowest case number governing for judicial administration purposes. Unless the writ requires otherwise, the officer should be required to apply the proceeds first to the lowest case number (oldest judgment.) Such a provision could be added somewhere in proposed Rule 64(d)(1) or (2).
We often face the situation where we are executing on real or personal property and are forced to issue multiple writs of execution on numerous low dollar amount tax judgments. It would be more efficient to issue a single writ referencing the numerous judgments than it is to issue multiple writs.