Posted: April 5, 2005
Utah Rules of Appellate Procedure
URAP 04. Appeal as of right: when taken. Amend. The proposed amendments are intended to clarify the status of a notice of appeal filed while certain motions are pending. The notice of appeal will be effective as of the date the motion is resolved, but will only be effective for the underlying judgment
URAP 08A. Emergency relief. New. Creates a new rule to establish a process for managing requests for emergency relief.
URAP 09. Docketing statement. Amend. Contains a technical change to reflect a legislative amendment requiring a motion to withdraw a guilty plea to be made before sentencing.
URAP 11. The record on appeal. Amend. Eliminates the option of a compressed format transcript.
URAP 12. Transmission of the record. Amend. Eliminates the option for a compressed format. Also includes language requiring the clerk transmit the record in post-conviction cases.
URAP 19. Extraordinary writs. Amend. Clarifies the process for resolving petitions for extraordinary relief, and references Rule 8A for other requests for emergency relief. Clarifies that the court?s decision will be based on the petition and the response, unless briefing is requested by the court.
URAP 30. Decision of the court: dismissal; notice of decision. Amend. Technical change.
I oppose eliminating optional use of compressed-format transcripts. In my experience, they are easier and faster to use because the reader can scan more information at a glance without turning pages. They are also more economical because they save paper. I can think of no good reason to eliminate this option. Please reconsider this change.
Regarding Rule 4.2:
It seems to me that we have a good opportunity here to strengthen substantially the explanation of contact with corporate or quasi-governmental boards or agencies. For instance, at a shareholders meeting, can a represented shareholder have his attorney make a presentation to the board if the company’s counsel is not present? In other words, does the prohibition apply equally to corporate individuals as well as entire corporate boards? We should think about this, anyway, to avoid having to address it in later proceedings.
Regarding proposed Utah R. App. P. 4(b)(2)
I would recommend that this provision be amended to delete the separate mention of motions for new trial – the section would then read:
A notice of appeal filed after announcement or entry of judgment, but before entry of an order disposing of any motion listed in Rule 4(b), shall be treated as filed after entry of the order and on the day thereof, except that such a notice of appeal is effective to appeal only from the underlying judgment. To appeal from an order disposing of any motion listed in Rule 4(b), a party must file a notice of appeal or an amended notice of appeal within the prescribed time measured from the entry of the order.
The rule, as currently written, seems to presuppose that only the absolute denial of a motion for a new trial could lead to a need for furhter appellate action. But such a motion might be granted in part, or might be aimed at only one or two issues out of many in the first place (i.e. the new trial motion may only address the district court’s award of attorney fees and never address the merits of the appealed from judgment). Such a motion for a new trial might be granted without mooting the issues raised in the original notice of appeal. I don’t believe there is a reason to identify the motion for a new trial separately – instead such verbiage could lead to confusion in how to interpret the rule where the motion for a new trial was not denied, but the original notice of appeal is still relied upon.
Regarding Proposed Amendments to the Utah R. App. P. concerning decision-making by a single judge or justice.
I would urge that further consideration be given to how appellate courts are to review the decisions of single justices or judges on motions and petitions. Under the proposed rules, and those rules that are not being amended, three distinct and separate methods are created for such reviews.
Rule 23(e), which is not being amended, states that a single justice’s or judge’s decision on a motion “may be reviewed by the court.”
The amendments to Rule 19(d), as they relate to emergency petitions under Rule 8(A), retain the previous Rule 19 language that a single judge’s or justice’s decision is “subject to review by the court at the earliest possible time.” But the section then continues and allows a single justice or judge to deny any petition as frivolous or for failure to materially comply with the requirements of the rules and sets out a specific procedure by which such a denial will be reviewed by the appellate court (specific request by a party within seven days of notice of disposition)..
When read together, these rules are confusing. Decisions by a single justice or judge are divided into three distinct groupings, each with its own review mechanism.
Only where a single justice or judge denies a petition as frivolous or for failure to materially comply with the rules is it clear how the decision will be reviewed.
In the case of motions, review appears to be permissive and not mandatory. It is not clear whether such review is to be initiated, sua sponte, by the court or at the request of the parties. If a party may request such review, no information is provided as to how such a request can be made.
A single justice’s or judge’s decision on an emergency petition is “subject to review by the court at the earliest possible time.” Proposed Utah R. App. P. 19(d). It is unclear whether such review is mandatory or only if requested by a party or by a member of the court. Again, if the parties can ask that such a decision be reviewed, the method they are to follow is not articulated.
Practitioners before Utah’s appellate courts would be benefitted if the rules more clearly stated whether review of a single justice’s or judge’s decisions is mandatory or permissive and what is the mechanism by which a permissive review can be sought.
I would also urge that consideration be given to using a single review mechanism for all decisions rendered by a single justice or judge. By having a single review mechanism the rules would be simplified and made easier to implement.