Posted: June 3, 2009
Rules of Civil Procedure
URCP 058A. Entry. Amend. Describes how to create an abstract of judgment.
URCP 063A. Change of judge as a matter of right. Amend. Exempts one party actions from the rule.
Utah Court Rules – Published for Comment
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Posted: June 3, 2009
URCP 058A. Entry. Amend. Describes how to create an abstract of judgment.
URCP 063A. Change of judge as a matter of right. Amend. Exempts one party actions from the rule.
Re: proposed Rule 58A
I will admit to some confusion regarding subsection (g)(2) (or lines 43-44). May the clerk issue an abstract before the time for appeal has passed? If not, perhaps the rule should specify that. If so, then why is it necessary for the clerk to indicate the condition, since it will likely be moot by the time the Abstract is filed at its destination anyway, and it is the abstracting party’s responsibility to keep an abstract case updated with any applicable status of the original case?
Regarding subsection (g)(3) (or lines 45-46), my concern is similar: if a judgment has been stayed, then should the clerk be issuing an abstract? In addition, the statement as to whether the judgment has been stayed is required to be part of the Judgment Information Statement, which must be filed with an abstract at its destination. Including the information on the abstract document itself is redundant.
Regarding subsection (g)(1) (or lines 40-41), what is the reason behind requiring that the abstract identify “the judge or clerk that signed the judgment”? In some cases, particularly if a great amount of time has passed since entry of the judgment (and if data entry was insufficient), it may be difficult or impossible to determine exactly who signed a judgment. And UCA 78B-5-202 does not seem to require that information in an abstract.
Regarding subsection (g)(4) (or lines 47-48), I object to the requirement that the clerk attach a copy of the judgment or quote the “operative language.” The term “operative language” is vague. Currently, the common practice is to identify the money amounts owed, the debtor, and the creditor. What other language might be “operative?” If other items from the Judgment should be included, those items should be specified in the rule. In addition, the purpose of the clerk’s abstracting the Judgment is just that: to specify the bare bones (i.e. the amounts owed, and from and to whom) of a Judgment. Attaching an actual copy of a Judgment would be redundant.
Lastly, regarding subsection (g) (or lines 38-39), is the requirement that the clerks signature be “under oath or affirmation” necessary? Why not just confer authority upon the clerk (as an officer of the court) to issue abstracts, as the clerk already has authority to issue such things as Writs? The separate requirement that the issuance be “under oath or affirmation” could be interpreted in such a light as to require a court notary to be available to clerks for purposes of affirming the documents–or at least to require a declaration that complies with UCA 78B-5-705. But such a requirement seems unnecessary, since a deputy clerk is already an officer of the court and should have authority to issue abstracts under a presumption of regularity.
Re: Rule 63A:
1. The brief description of the amendment is not present. That is, the following language doesn’t appear anywhere in the proposed amended Rule: “Requires that notice of change of judge by right be filed before the judge has decided any issue in the action.”
2. A proposed amendment should consider probate cases as a special category of cases that (a) may or may not ever have a hearing before the assigned judge and therefore it would be unnecessary to every invoke the Rule; b) who is a “party” for the purposes of the Rule? Specifically, when filing a new petition with many “interested persons” listed, none of which have counsel and none of which have asserted themselves into the litigation, who is necessary to invoke the Rule? Or, what a case that initially goes only before the assigned Probate Judge in the 3rd district and then a year or so later goes before the assigned judge?
The proposed amendment is ambiguous with respect to probate cases. In probate cases, there is a “petitioner” or an “applicant” but no defendant. There may be listed in the body of the petition or application (for informal probate) beneficiaries or interested persons. Are all of these probate cases “one party actions”? Or, would all of the beneficiaries listed be considered as “parties” for the purpose of this Rule? If the former, then the amendment should expressly exclude probate cases. If the later, then the amendment should clarify this.
I am against the proposed amendment for the foregoing reasons and would like an amendment that allows any probate case filed to invoke the Rule. After all, what is the intent of the Rule? Isn’t it to allow one change of judge without cause? Why shouldn’t probate cases be given the same right?