Rules of Appellate Procedure

We write to oppose proposed amendments to rule 37 that would make voluntary dismissals subject to court approval.
These amendments would make motions for voluntary dismissal subject to the appellate court’s approval even when the parties have settled their dispute and arranged for the payment of costs and any outstanding fees. In this circumstance, no dispute remains to be decided. No party is seeking even a declaratory judgment. Yet under the proposed rule 37, the court could insist that the parties remain in litigation.
While the power of Utah’s judiciary is not limited to cases and controversies—the federal constitutional standard—certain “threshold elements” must be satisfied before a court may act. Among these are “parties whose interests are adverse” and a “justiciable controversy.” Miller v. Weaver, 2003 UT 12, ¶ 15. The “presence of a justiciable controversy” is no less than “the keystone [of] our judicial framework.” Shipman v. Evans, 2004 UT 1151, ¶ 32.
The proposed rule 37 would remove this keystone. By making stipulated dismissals subject to court approval, the proposed rule would empower courts to decide an appeal even after the controversy is resolved and the parties’ interests have ceased to be adverse.
This is more authority than our courts have under the current rule. It is also more authority than the United States Supreme Court has under its equivalent rule, which is materially identical to the current Utah rule. U.S. Supreme Court rule 46 requires the appellate court clerk to enter an order of dismissal “[a]t any stage of the proceedings, whenever all parties file with the Clerk an agreement in writing that the case be dismissed.” So long as costs and fees are provided for, the clerk is required to enter an order of dismissal “without further reference to the Court.”
Of course, Utah need not follow the federal approach in all matters. But we see no reason to depart from it, and from our own history and practice, in this instance. What legitimate purpose would ever be served by an appellate court’s denying parties who have resolved their dispute the right to end the litigation?
These proposed amendments to rule 37 were submitted to, and not approved by, the Supreme Court Advisory Committee on the Rules of Appellate Procedure. Although we are members of that committee, we wish to make clear that we are writing solely in our individual capacities.

To the Supreme Court Advisory Committee on the Utah Rules of Appellate Procedure:
I am writing in my capacity as Utah Solicitor General and head of the Attorney General’s Civil Appeals Division to comment on proposed changes to the appellate rules that were published on January 7, 2009.
1. Proposed Rule 25 does not require a motion for leave to file an amicus curiae brief to include a copy of the proposed brief, while proposed Rule 50(f) does when there is a pending certiorari petition. I do not know if this inconsistency is deliberate or inadvertent. The parties to the appeal could provide a more reasoned, and less knee-jerk, response to the motion if the contents of the proposed brief were known. But the proposed 21 days in advance filing requirement in Rule 25 would leave too little time for the movant to draft the proposed amicus brief. Thus, I suggest that its inclusion with the motion be optional in Rule 25.
Proposed Rule 25 does not address the circumstance of an amicus brief that supports neither party and thus, neither reversal nor affirmance. It is better practice to provide expressly in the rule for this situation, even though it occurs rarely, instead of allowing the clerk to handle it on a case-by-case basis. I would therefore insert in Rule 25 between the sentences on line 11 the following: “The motion for leave to file a brief by an amicus curiae supporting neither party shall be filed within seven days of the time allowed for filing the petitioner’s or appellant’s brief.” This proposal tracks the process used by the United States Supreme Court in its Rule 37.3(a) and allows time for parties on appeal to oppose the motion before their next brief is filed.
Finally, I would urge the Committee and the Court to adopt amendments to Rule 25 and Rule 50 so they do not require leave of court for an amicus curiae brief to be filed by the Utah Attorney General on behalf of the State of Utah. This proposal would mirror the practice in the United States Supreme Court and the federal courts of appeal. See Sup. Ct. R. 37.4; Fed. R. App. P. 29(a). Under these rules, the State of Utah has participated in scores of federal court appeals as amicus curiae during the last eight years, while requested to do so in hundreds of cases. Its attorneys understand that the proper role of an amicus curiae is not just to add “weight” to one side or the other in a dispute, but to bring to the attention of the Court helpful and relevant material, as well as the State’s unique perspective, that will likely not be adequately raised by the parties themselves. As the United States Supreme Court’s rule cautions: “An amicus curiae brief that does not serve this purpose burdens the Court . . . . ” Sup. Ct. R. 37.1. In addition, Utah case law already prohibits an amicus curiae brief from enlarging or adding to the issues to be considered on appeal beyond those raised by the parties themselves. E.g., State v. Green, 99 P.3d 820, 829 (Utah 2004 ); In re Woodward, 384 P.2d 110, 111 (Utah 1963); Draughon v. Dept. of Fin. Insts., 975 P.2d 935, 936 n.1 (Utah App. 1999).
2. Proposed Rule 37(c) states: “A suggestion of mootness or motion for voluntary dismissal shall be subject to the appellate court’s approval.” I strongly oppose the addition of this language as it relates to voluntary dismissals. There is no question that the appellate court should ordinarily rule on the question of whether an appeal is moot, which presents a legal question. And if an appellant unilaterally decides to terminate an appeal, the appellate court can certainly make dismissal contingent on adequate provisions for payment of costs and fees owed. But there is no basis in law or sound public policy for a court to prevent an appellant or petitioner from terminating an appeal at will. As we all know, appeals are time-consuming and very costly. If an appellant or petitioner determines it is best to drop the appeal instead of waiting for an appellate decision, no court should be allowed to require additional expenditures or to second-guess the party’s control over strategy in its own lawsuit. Similarly, if all parties to the appeal stipulate to a resolution that involves dismissal of an appeal, no court should be able to block that voluntary dismissal in order to serve its own interests. Our legal system wants and encourages parties to settle their disputes extrajudicially. Moreover, once parties to an appeal reach a satisfactory settlement and agree to dismiss the appeal by stipulation, there is no actual controversy left between them for a court to decide. In such a circumstance, the appellate court is required to dismiss the appeal. Since there is no justiciable controversy remaining between the parties, no effective judicial remedy is needed or can be provided. In other words, the appeal is moot as a matter of law. See, e.g., Salt Lake City v. Utah Tax Comm’n, 813 P.2d 1174, 1177 (Utah 1991); Franklin Fin. v. Empire Dev. Co., 659 P.2d 1040, 1043 (Utah 1983); Merhish v. H.A. Folson & Assocs., 646 P.2d 731 (Utah 1982); Reynolds v. Reynolds, 788 P.2d 1044, 1045 (Utah App. 1990).
I would be happy to discuss these concerns with the Committee or the Court.
Annina M. Mitchell
Utah Solicitor General
160 East 300 South, 5th Floor
PO Box 140858
Salt Lake City, UT 84114-0858
phone: 801-366-0533
email: AnninaMitchell@utah.gov