Rules of Appellate Procedure

URAP 004. Appeal as of right: when taken. Amend. Creates a process for litigants in civil cases to seek reinstatement of the 30 day period for filing an appeal. A trial court may reinstate the time for appeal if a party did not receive a notice of the judgment, because it was not promptly sent and the litigant otherwise exercised reasonable diligence in monitoring the proceedings.
URAP 014. Review of administrative orders: how obtained; intervention. Amend. Clarifies that payment of the filing fee is not jurisdictional, making the rule consistent with rule 3.
URAP 024. Briefs. Amend. Changes how a brief should be structured. Clarifies what should be included in each section and how much detail. Adds a word count limit in death sentence cases, doubling the limit in other appeals.

Utah Courts

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4 thoughts on “Rules of Appellate Procedure
  1. Nathan Whittaker

    Style notes re: URAP 4(g)
    The committee may want to consider putting the enumerated conditions on lines 53-57 into their own subparagraphs, [fn1] and labeling them as (1) through (3). [fn2] If the committee wishes to avoid a dangling section after the enumerated conditions, [fn3] it may want to subdivide (g) as follows:
    On line 51, add a new paragraph after the heading labeled (g)(1).
    Label the three enumerated conditions into subparagraphs (g)(1)(A) through (g)(1)(C).
    On line 58, add a new paragraph at the beginning of the line and label it (g)(2).
    On line 61, add a new paragraph after the word “Procedure” and label it (g)(3).
    Nathan Whittaker
    Day Shell & Liljenquist, LC
    [1] Bryan A. Garner, Guidelines for Drafting and Editing Court Rules § 3.3(A) (5th ed. 2007) (“Set off enumerated items into subparts when feasible.”).
    [2] Id. at § 3.2(A) (structural divisions should be in the following order: lowercase letter, Arabic numeral, capital letter, lowercase roman numeral.).
    [3] Id. at § 3.3(E) (“Avoid unnumbered dangling sections . . . .”).

  2. Nathan Whittaker

    Re: URCP 58A(d) & URAP 4(g) (cross-posted)
    1. It appears that the requirement to serve a notice of judgment under URCP 58A(d) only applies to “the party preparing the judgment.” Likewise, URAP 4(g) requires a party seeking to reinstate the period for filing the appeal to show that “the party responsible for serving the judgment did not promptly serve a copy of the signed judgment . . . .” It seems this rule is unclear as to what happens if the Court prepares the judgment itself. Does any party have a responsibility to notify the other parties in such a circumstance? Does the Court have a responsibility to notify the parties of the entry of the judgment? As URAP 4(g)(iii) specifies a “party,” does this mean that relief is unavailable if the court prepared the judgment?
    2. When read with URCP 58A(d), URAP 4(g)(iii) seems to require that notice not be served under URCP 5 in order for a party to obtain relief. As service under URCP 5 is not the same as delivery or actual notice, this seems like it may be inconsistent with the intent of URAP 4(g), which otherwise appears to apply an excusable neglect standard. Did the committee intend to restrict the ability of a party to obtain relief under URAP 4(g) if the party preparing the judgment served notice under Rule 5, but the party seeking relief did not receive actual notice and was otherwise reasonably diligent in monitoring the proceedings? Or is it the intent to allow the party preparing the judgment to guarantee that the time limit for appeal cannot be reset regardless of excusable neglect?
    3. Both URCP 58A(d) and URAP 4(g)(iii) use the term “promptly serve.” If the intent of URAP 4(g)(iii) is to allow the party preparing the judgment to guarantee that the time limit for appeal cannot be reset, (see paragraph 2), perhaps a specific time such as “7 (or 14) days after entry of judgment” would be better. Notices served after that time would be probative for the purpose of actual notice under URAP 4(g)(i), but would not be an absolute bar.
    Nathan Whittaker
    Day Shell & Liljenquist, L.C.

  3. Alexander Dushku

    The proposed changes to the “nature of the case” section only deepen the confusion over what this section is for. The proposed one-paragraph limit is much too short for a proper introduction that could help the court quickly understand both the crux of the dispute and the general thrust of a party’s arguments. And it is ambiguous what it means to state “the primary theme of the issues raised before the appellate court.” Does “primary theme of the issues” refer to arguments? If so, the word “arguments” would be better. Or does it refer to something else? It is unclear.
    It may be better to simply call the section an “introduction” and direct the party to provide a brief explanation of what the case is about and why it should win on appeal. The rule could read: “Introduction. A brief statement in narrative form of the nature of the case, the determinative issues on appeal, and why the party believes it should prevail.”

  4. Utah Ass'n. Criminal Defense Lawyers

    The Utah Association of Criminal Defense Lawyers (“UACDL”) and its Capital Committee oppose the proposed changes to Rule 24 that limit the length of briefs in capital cases because doing so injects unfairness into the appeals process and will result in prolonged proceedings and additional, costly errors. Capital cases are extraordinarily complicated and require a greater degree of skill level. These cases often raise dozens of issues that must be preserved on appeal and in the state courts to avoid procedural bars in subsequent state post-conviction and federal habeas corpus proceedings. Limiting the briefing to 30,000 words institutes an arbitrary standard for capital cases that has no relation to the actual complexity of individual cases. At the very least, this capricious standard sends an implicit message to capital defense attorneys to curtail full briefing even if justice demands more detailed analysis of complicated constitutional issues.
    The word count limit is particularly onerous given the high burdens on criminal defense lawyers in capital cases. “Given the high stakes inherent in such proceedings—life and liberty—“ the Utah Supreme Court closely scrutinizes defense counsel’s representation in those cases. Menzies v. State, 2006 UT 81, ¶¶ 82, 84, 93. In fact, the Supreme Court has specified high qualifications for attorneys to even be eligible to appear in capital cases. See Utah R. Crim. P. 8. These high standards help to satisfy the extensive constitutional mandates that must be met before the state may execute a person.
    Given the seriousness of capital cases, the legal issues and procedural requirements are extraordinarily complicated. Accordingly, capital defense lawyers file dozens of motions in the trial court. Each of those motions must then be reviewed on appeal. But, under the proposed rule change, capital defense attorneys’ ability to adequately brief the issues is severely curtailed. To meet the word count limit, attorneys will be forced to limit the amount of space provided to individual arguments. This result increases the chances of providing the Utah Supreme Court inadequate information to accurately and correctly decide whether a person lives or dies.
    Further bolstering these arguments, the Utah Supreme Court relies on the American Bar Association’s Death Penalty Guidelines (“ABA Guidelines”) when reviewing the adequacy of defense counsel’s representation. See Menzies, 2006 UT 81, ¶ 90. Those guidelines require capital attorneys to raise all issues on appeal and to fully and thoroughly brief them. The ABA Guidelines stand as minimum ethical requirements for capital cases. The failure to follow them risks unjust executions and reversal in subsequent court proceedings. In the end, the proposed rule change injects error and inefficiencies into capital cases.
    The word count limit raises additional concerns for subsequent post-appeal proceedings. Capital cases are litigated extensively in state post-conviction and federal habeas corpus proceedings following a direct appeal. But, the scope and nature of the claims that may be considered in those proceedings depends directly on what issues counsel raised on direct appeal. If counsel does not fully brief the arguments on appeal, capital defendants may lose the opportunity to challenge them in post-conviction/habeas proceedings. The proposed rule change, therefore, has a direct adverse effect on how capital cases proceed, even years down the road. Without an opportunity for full briefing on appeal, capital defendants will be deprived of their ability for collateral review.
    Even assuming that the Utah Supreme Court does not strictly enforce the page limit requirement and grants motions for leave to exceed them, the rule change establishes a standard of practice that attorneys will be hesitant to ignore. Simply specifying a word count limit places capital defense attorneys in an ethical dilemma with their clients. Specifically, should the attorney please the court and follow the word count limit or forego the rule and fully brief the case as necessary? Constitutional and ethical duties demand that the clients’ best interests prevail, especially in cases involving death.
    This dilemma presents a particularly difficult problem for less experienced attorneys who happen to be appointed to a capital case. Even though the attorney may technically qualify to represent a capital defendant, the attorney may lack familiarity with appellate court procedures and the option of filing a motion for an overlength brief. Or, the newer attorney may not be aware of ABA Guidelines and, instead, follow the court rule on word count limit out of fear of displeasing the court. Should any of these circumstances apply, the rule change would encourage shoddy or incomplete representation. Given the extreme costs of capital cases, increasing the possibility of error through a word count limit imposes a huge burden on the court system, governmental budgets, and scarce law enforcement resources, not to mention the toll that protracted litigation takes on victims, attorneys, and the defendant.
    Finally, UACDL questions how the drafters of the proposed rule concluded that 30,000 words are sufficient for a capital case. This number appears to be arbitrary and unsupported by any research that demonstrates that ordinary capital appeals need no more than 30,000 words. The mere term “an ordinary capital case” begs the question of what a capital case entails. Absent sound reasons for relying on the 30,000 figure, the rule change appears to simply be an arbitrary mark without any justification.
    Although the rule change may be motivated by a worthy desire to streamline capital cases and to encourage the efficient administration of justice, the unintended consequences would defeat the purpose of the change. The rule would actually prolong court proceedings in the long run and frustrate the resolution of capital cases. The more efficient and fair approach is to allow attorneys to fully brief the issues on appeal to set the stage for all subsequent proceedings. Justice demands full briefing especially given the high stakes involved in these cases.