Rules of Small Claims Procedure – Comment Period Closed September 12, 2016

URSCP 001 General provisions.  Amend.  The Utah Rules of Small Claims Procedure will not apply to cases removed from small claims court to district court, except as outlined in Rule 12.

URSCP 002 Plaintiff beginning the case.  Amend.  Title changed to include “Plaintiff.”

URSCP 002A Defendant’s removal from district court.  New.  Prescribes the procedures outlined in Utah Code Section 78A-8-102, authorizing a defendant to remove a case from district court to small claims court with the plaintiff’s stipulation.

URSCP 003 Service of the affidavit and summons.  Amend.  Requires language in the summons sufficient to notify a defendant of his/her removal rights.

URSCP 004 Counter affidavit.  Amend.  Provides an exception to the time limit for filing a counter affidavit when a defendant is removing the case pursuant to Rule 2A.

URSCP 004A  Defendant’s removal to district court.  New.  Provides defendants with the ability to remove a case filed in small claims court to district court for proceedings in accordance with the Utah Rules of Civil Procedure, including the option for a jury trial in the first instance.

URSCP 012 Appeals.  Amend.  Provides parties the option of electing a jury trial de novo in the district court for cases tried in small claims without a jury and allows district court judges the option of requiring parties to exchange information prior to a de novo trial (with or without a jury).  Notifies parties of their appellate rights when a case is removed to district court pursuant to Rule 4A.

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14 thoughts on “Rules of Small Claims Procedure – Comment Period Closed September 12, 2016
  1. Paul Johnson

    I think Rule 4A and Rule 12 have totally eviscerated the only advantages for a Plaintiff in filing a case in small claims court.

    The whole point/purpose of small claims court is to keep things simple in order to keep costs of litigation down, to have the litigation proceed quickly, and to allow a lay person to conduct his own litigation–creating a quick, inexpensive, do-it-yourself remedy on small dollar claims.

    Allowing a defendant to remove a small claims case to district court allows a litigious defendant with a lot of resources to force a plaintiff who may not have a lot of resources to engage in the discovery process and to have a jury trial. The discovery process slows the progression of a case down to a crawl, and costs a lot of money–which is not justified in small dollar cases. Also, conducting discovery and conducting a jury trial can be very complex, and requires a great degree of legal expertise. By this rule, the Supreme Court has effectively eliminated any legal remedy for most potential small claim plaintiffs.

    Allowing a court to be able to force a party to exchange information and to conduct a jury trial on an appeal to the district court–under Rule 12–has the same effect. It requires an unsophisticated plaintiff to play by the “big boy rules” of district court cases, which will effectively eliminate the motivation for small claim plaintiffs to file small claim cases.

    I’m not sure that the elimination of a small claims remedy was the intent of the Supreme Court in promulgating these rules, but I see these rule changes as basically eliminating the remedy of small claims court. In light of these rule changes, my advice to clients with a small dollar claim will be that it is no longer cost effective to pursue such a claim, so you should just let it go.

    These two rule changes are directly opposed to giving less wealthy, less sophisticated parties access to the courts–which I believe was the primary reason small claims court was created.

    This rule seems to be motivated by the desire of the insurance industry to eliminate small dollar claims in personal injury cases. I would be very surprised to learn that the insurance industry is not the impetus behind these rule changes.

    Basically, I think Rule 4A and the portion of Rule 12, which allows a court to require parties to engage in discovery, and allows an election to have a jury trial, totally eliminates the only advantages of pursuing a claim in small claims court–it basically changes small claims court into district court for smaller dollar claims.

    These are two of the stupidest rule changes I have seen in my 30 year career as an attorney. These rule changes clearly make the courts less accessible to to the non-wealthy, rather than making the courts more accessible to the non-wealthy.

    If the Supreme Court desires to eliminate the small claims remedy, why doesn’t the Supreme Court just do it directly with more transparency, rather than eliminating it in this sneaky, indirect manner–by means of implementing a rule change that could potentially make every small claims case filed a case that must follow district court rules concerning discovery and jury trials.

    1. Paul Johnson

      I forgot to add that by allowing a small claims case to be removed to district court, it also eliminates the advantage of not having to be subjected to the process of an appeal to the appellate courts, which is very complex, time consuming and expensive. Why would any party with a small dollar claim want to pursue that claim, if it could end up having to fight an appeal involuntarily?

  2. Richard C. Terry

    URSCP 003 is one more of hundreds of rocks thrown at the glass house that once was “ignorantia juris non excusat” by our courts, our legislatures and our rule makers. Even though the rule is a civil rule and the Latin phrase is criminal we continue to baby feed pro se litigants, defendants, debtors and judgment debtors at the expense of plaintiffs, creditors and judgment lien claimants.

  3. Brad DeBry

    I am shocked, stunned and disappointed. The proposed amendments clearly violate the State Constitution and Separation of Powers; gut the essential purpose of small claims court; and, turn proportionality on its head by expanding discovery, procedure, complexity, and costs into very small claims.

    Any court’s jurisdiction is exclusively a grant of power from a constitution. Courts cannot take power unto themselves. To do so violates that Constitution and the statute granting the power. Under Utah’s Constitution, Article VIII Section 5 states: “The district court shall have original jurisdiction in all matters except as limited by this constitution or by statute….The district court shall have appellate jurisdiction as provided by statute. …[T]here shall be in all cases an appeal of right from the court of original jurisdiction to a court with appellate jurisdiction over the cause.” Small Claims courts are creatures of statute that specifically limit the district court’s jurisdiction.

    78A-8-101 – “There is created a limited jurisdiction division of the district and justice courts designated small claims court.”

    78A-8-102(1) defines a “small claim” that may be brought in the limited jurisdiction court.

    78A-8-102(2) statutorily defines removal in the context of small claims. While removing down is allowed, removing up is not provided. “The express statement of [a] single path for [removal] is an evident exclusion of any other.” Zeller v. Nixon, 355 P.3d 991, (Utah 2015) (internal citations omitted). To attempt to change this by administrative rule is an express violation of the separation of powers.

    78A-8-106(1) – “Either party may appeal the judgment in a small claims action to the district court of the county…. If the judgment in a small claims action is entered by a judge or judge pro tempore of the district court, the notice of appeal shall be filed with the district court.”

    The proposed amendments inappropriately try to circumvent these statutes by altering statutory original jurisdiction, statutory appellate jurisdiction, and statutorily mandated procedure. This Court cannot intrude on the legislature’s constitutional power to limit jurisdiction.

    If violating constitutional and statutory protections are not enough, the whole point of a limited jurisdiction, small claims courts is that by giving up the potential for a judgement above $10K and any right to discovery, a claimant gets fast, inexpensive, and relatively simple access to the court system. “The hearing in a small claims action has the sole object of dispensing speedy justice between the parties.” 78A-8-104(1) Utah Code. Now, at the discretion of the defendant, the amendments turn a simple Small Claims case into a much more complex tier 1 case that many lawyers fear to bring. The sheer nature of a Tier 1 jury trial will render most cases in the small claims world pointless. Doing so takes away a plaintiff’s potential remedies by exceeding the cost, time, and complexity of these cases. They turn proportionality on its head opening up discover, complexity, and costs in cases that plaintiffs have already acknowledged admitted are of very small value.

    If the concern is the right to a jury trial, it is something that must be fixed by the legislature. This concern has been raised in car crash cases with Ut Cd 31A-22-321 arbitrations. It could easily be addressed here in similar, but proportional ways.

    These amendments favor wealthy, powerful defendants who will now be able to use the judicial system to its fullest extent in fighting claims of minimal value. There are many within our society that would rather spend thousands or tens of thousands to fight a battle than to pay the few hundred that they might rightfully owe. Many large businesses use litigation as an essential weapon in their business strategies. Those in this category do not care whether they win or lose those battles. By wreaking havoc in the fight, they discourage thousands and win long term strategic goals. These forces were unsuccessful with the legislature and are now trying an end-run. These amendments rob the individual of the one, last place she can stand as an equal against the loftiest. A powerful blow has been struck against the interests of justice.

  4. John P. Lowrance

    URSCP Rule 4a completely exceeds the scope of the Simler vs. Chilel case. No where in the Simler vs. Chilel case does the Utah Supreme Court discuss a defendant’s ability to remove a case from Justice Court to District Court. The holding from Simler vs. Chilel indicates that a party has a right to a jury trial, at the district court level, upon Notice of Appeal/Trial De Novo. URSCP Rule 4a as written allows any defendant the right to remove any case from Justice Court to District Court and to have a jury trial on the initial trial, not just upon Notice of Appeal/Trial De Novo. In exceeding the scope of granted by the Utah Supreme Court under Simler vs. Chilel, URSCP Rule 4a creates new law without going through the correct process for doing so.

    A special committee should be created that can create rules that correctly incorporate the Utah Supreme and Appellate Court opinions without appearing to have been promoted by special interest groups.

  5. David S. Head

    The recent addition of Rule 4A goes totally outside the bounds of what was ruled in Simler v. Chilel. While the Supreme Court has determined that parties in small claims cases have the constitutional right to a jury trial, it ruled that such right was only available at the de novo stage, not in the initial small claim filing. It also did not rule that small claims parties are entitled to discovery.

    The purpose of small claim cases was to enable claimants with low damages to be able to resolve their claims quickly and inexpensively. However, Rule 4A will enable wealthy parties to be able to remove every small claims matter to district court with expensive and complicated discovery. If Rule 4A is not removed, it will have a chilling effect on claimants with lower damages, especially the poor. First, small claim plaintiffs will be unable to file an attorney who will take their cases because they will not be economically worthwhile to take due to the large costs to perform discovery and do a trial on cases with little damages. Second, Rule 4A will prevent such individuals from doing these claims pro se because they will not have the ability or training to know how to perform discovery or conduct a jury trial. Therefore, Rule 4A should be removed to allow equal access to the courts and to decrease the case load of district court judges.

  6. Bruce M. Pritchett

    I write to oppose the recent amendments (wholesale revisions) to the Utah Rules of Small Claims procedure.

    The Utah Supreme Court in Simler v. Chimel said that all defendants have a right to a jury trial–fair enough. But the Utah Constitution itself also has an Open Courts provision (Art. I, sec. 11) that states “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay . . .”

    Newly added Section 4a, for example, allows any defendant, for any reason, to “opt out” of the small claims system and into the much more expensive and delayed district court process, thus adding greatly to the “unnecessary delay” barred by the Utah Constitution–a constitutional provision which demonstrates a much larger consensus of Utahns than the just the Simler court.

    The Simler court’s judicial activism should not override the cherished rights of the Utah Constitution.

    I believe a proper balance between Simler’s right to jury trial and the Utah Constitution’s Open Courts provision would be along these lines: allow a small jury (perhaps 4–I believe there is precedent for such a number–with a requirement that 3 of 4 jurors must concur, preserving the same ratio as 6/8 in other civil jury trials) to act as fact finder. Perhaps the jury could be as few as 3 people, with only 2/3 needed to return a verdict. This jury could perhaps be scheduled in such a way as to sit for all of the small claims cases that are scheduled for a jury trial on a given day. Allow each party to a trial on a given day to strike the same panel for cause, and be granted one peremptory challenge per side, per case.

    But do not allow any other departures from the Utah Rules of Small Claims Procedure. No discovery, except as stipulated by the parties. No delays, except as formerly provided by the rules.

    It must be kept in mind that the Utah Supreme Court made a great issue of “proportionality” in its 2011 amendments to Rule 26 and the other Rules of Civil Procedure, and the Advisory Committee Comments emphasized very strongly the need for its amendments, based on Rule 1’s stated goal (consistent with Art. I, sec. 11’s Open Courts Provision) of providing for the “just, speedy, and inexpensive” resolution of court cases. It was not too long ago the Supreme Court understood the compelling need for our courts to do better at delivering “just, speedy, and inexpensive” justice.

    On the other hand, allowing any defendant to “opt out” of the longstanding small claims process for no good reason other than a desire to delay the inevitable (and to line the pockets of defense attorneys who bill by the hour) does great violence to our court system, and to the many deserving Utahns who wait, and wait, and wait.

    If you doubt the pocket-lining efforts of the defense bar in these amendments, simply track the law firms that comment in favor and in opposition to these amendments. The phenomenon will become apparent, I assure you.

    If the courts have grown oh-so-weary of the huge number of cases that come to its doors, a due and proper regard for Utah’s ordinary tax-paying citizens might just recognize that there are MANY people in Utah who need the court’s help. Closing the court’s doors does not solve that problem–it merely ignores it, or passes the buck to a District Court system that is already more heavily overloaded than the small claims system.

    Granting a SMALL jury trial for SMALL claims (and not further departing from the traditional rules of small claims court) is, I think, a solution that comes as near as I can think of (right now) to striking the proper balance between the right to a jury trial in proportionately small matters.

  7. George Tait Law, LLC

    The goal of small claims is to achieve the fair, swift and inexpensive resolution of small claims. Oftentimes in small claims court there are parties with unequal power–individuals against well-monied corporations. Small claims procedures as they stand now are complicated enough and adding another layer of a jury trial and discovery will chill plaintiffs from pursuing their claims.

    Furthermore the cost and other administrative burdens on an already burdened judiciary in satisfying this new rule will swell and in all likelihood subjugate speed and cost of resolution favoring the wealthy.

    In my opinion Rule 4a is not a fair reflection of the Simler decision. Jury trials may be a right but only if exercised and discovery was never reached by the Court. The new rule appears to be overreaching and should be rolled back in concert with a close reading of Simler decision.

  8. Ron Dalby

    URSCP Rule 4a completely exceeds the scope of the Simler vs. Chilel case. Having argued the Simler case, there was never a thought, comment, or issue regarding immediate removal to district court. One of the justices specifically asked defense counsel to clarify that the jury trial was apply only on de novo appeal. Counsel agreed.
    Secondly, the Supreme Court, in argument, dismissed the concept of pre-trial discovery at the small claims level. Proposed rule 4A(b) intentionally ignores the court’s silence on this aspect, bypasses Rule 6 of the URSCP, and completely opens the door to having well-heeled defendants immediately remove a small claims matter to district court, then subject the plaintiff to 3 hours of depositions, 5 requests for production and 5 requests for admission. It will only take a few of those to close the door to any plaintiff with a small claim. No attorney can afford to take the case and once again, the wealthy defendants win, now excluding thousands of cases (over 28,000 small claims cases filed in 2014). In exceeding the scope of granted by the Utah Supreme Court under Simler vs. Chilel, URSCP Rule 4a creates new law without going through the correct process for doing so. This proposed rule appears to be taken right out of Simler’s trial brief.

    A special committee should be created that can create rules that correctly incorporate the Utah Supreme and Appellate Court opinions without appearing to have been promoted by special interest groups.

  9. Matthew Kober

    I write to strongly oppose the amendments to the Utah Rules of Small Claims procedure. Brad DeBry, John Lowrance, David Head, Paul Johnson, and Bruce Pritchett already gave an accurate and detailed explanation for why these amendments should not pass. I join in them.

  10. Joshua Jewkes

    Proposed URSCP 004A should, respectfully, be rejected as written and withdrawn. This rule was written in the wake of the Utah Supreme Court’s recent decision in Simler v. Chimel, which held that a right to a jury trial is available to parties at the district court level in a de novo review of a small claims court decision. This proposed rule is, however, inconsistent with that ruling in that it purports to allow a jury trial right in every small claims action by authorizing a right to remove each case to the district court. The Simler Court never ruled–indeed, never even discussed–a small claims defendant having a unilateral right to de novo trial. If implemented, proposed URSCP 004A would represent an unwarranted and unprecedented expansion of expensive and burdensome jury trials and eviscerate the very purpose of the small claims court, which is to afford ordinary citizens access to the courts and resolve disputes under the jurisdictional limit in a cost effective and efficient manner. Proposed URSCP 004A should, therefore, be rejected and withdrawn. Moreover, if any future action is to be taken in response to the Simler v. Chimel holding, it should be done through an unbiased special committee.

  11. Daniel J. Morse

    I write in opposition to the proposed URSCP 004A. As written, it does not seem to be a fair or accurate reflection of the Simler v. Chimel decision from the Utah Supreme Court. This seems like an unfunded and unfounded burden upon the District Courts and our jury pools. Accordingly, it must be rejected and withdrawn.

  12. Lynn P. Heward

    The Utah Supreme Court and/or the Judicial Council have proposed changes to the Rules of Small Claims Procedure to incorporate an absolute right of the defendant to remove the case to district court.
    The impetus for this proposed rule changes is the determination made in the case of Simler v. Chilel, 2016 UT 23, 814 Utah Adv. Rep. 10. The Simler case specifically held that “Utah Code section 78B-1-104(4) is unconstitutional ….” Id. at ¶ 23.
    It was appropriate that the Supreme Court limited its holding to strictly what was necessary. That is, the only thing it found unconstitutional was the following sentence: “There is no jury in the trial of small claims cases.” There was nothing to indicate that any other part of that statute or any other statute was unconstitutional or was otherwise invalidated.
    Furthermore, the Court specifically refused to address constitutional issues that were not properly preserved. The Court did not address the “right to a jury in the initial small claims trial in Justice Court,” Id. at ¶10 n. 1. And the Court did not address the “right to due process, open courts, and uniform operation of laws” in connection with the “preclusion of pretrial discovery.” Id. at ¶21.
    This followed settled precedent. Zissi v. State Tax Commission of Utah, 842 P.2d 848, 857 (Utah 1992) stated:
    [W]e are mindful of our power to save a statute from unconstitutionality by imposing on it a limiting construction. This power permits us to uphold an otherwise questionable statute by tailoring it to conform to the constitution, which is what we must presume the legislature intended. (Emphasis added.)
    Thus, the Simler case did not invalidate the whole statute pertaining to jury composition (Utah Code §78B-1-104). In fact, it did not declare that it would be unconstitutional for the legislature to enact a statute stating, “There is no jury in the trial of small claims cases before de novo review.” Furthermore, the Simler case did not invalidate the statutes pertaining to small claims found in Title 78A, Chapter 8.
    Likewise, the Utah Supreme Court should ensure that changes in the Rules are similarly limited in scope. That is, the Rules should tailor the statutory scheme to conform to what the legislature intended (within constitutional constraints).
    The legislature specified that justice courts can handle small claims actions. Utah Code Section 78A-7-106(6).
    The legislature had a right to establish justice courts under Article VIII, Section 1 of the Utah Constitution:
    The judicial power of the state shall be vested in a supreme court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish.
    The jurisdiction of the justice courts was also to be established by the legislature, as indicated in Section 5 of that same Article: “The jurisdiction of all other courts, both original and appellate, shall be provided by statute.”
    In making changes to rules applicable to small claims actions, the Utah Supreme Court must defer to the legislature’s constitutional right to specify that the justice courts have jurisdiction over small claims cases.
    A. Removal Thwarts the Legislative Intent.
    The proposed Rule 4A will give the defendant in a small claims action, upon demanding a jury, the unfettered right to remove that action to the district court and treat it as if it were not a small claims action. This right of removal does not tailor the statutory scheme to make it constitutional in accordance with the legislative intent.
    Section 78A-8-104 specifies, “The hearing in a small claims action has the sole object of dispensing speedy justice between the parties.” This purpose is recited (and followed) in the current Utah Rules of Small Claims Procedure. Rule 1(a) states, “These rules … are to be interpreted to carry out the statutory purpose of small claims cases, dispensing speedy justice between the parties.”
    If the defendant has the unfettered right to remove a small claims case to district court, then the claimant does not have the right to speedy justice. Therefore, the intent of the legislature is thwarted.
    As indicated below, there is no need for the Utah Rules of Small Claims Procedure to provide for such removal.
    In the case of State v. Kearns, 2006 UT App 458, ¶10, 153 P.3d 731, the court found that the criminal defendant had a constitutional right to “an Information apprising the defendant of the ‘particulars of the alleged wrongful conduct.’” The court went on to discuss the discovery requests, pointing out that the defendant did not have a right to obtain these without cost:
    Unlike the constitutional and statutory rights discussed above, a defendant’s right to rule 16 discovery material is not protected against his having to pay fees to secure those rights.
    Id. at ¶12.
    The right to discovery in a civil case was addressed in Petro-Hunt, LLC, v. Department of Workforce Services, 208 Utah App 2008, 197 P.3d 107. In that case, the petitioner argued that there was a violation of a right to due process when formal discovery was denied. The court stated that there was no constitutional issue, but only the issue of whether the denial of discovery was an abuse of discretion.
    The court acknowledged that every claimant “has a due process right to receive a fair trial in front of a fair tribunal.” However, the court could not “say that this fairness requirement necessarily includes the constitutional right to formal discovery ….” Id. at ¶11.
    A. Removal is Not Required in Order to Permit Discovery.
    Of course, the Utah Supreme Court may determine due process does include a right to discovery. If so, such a constitutional right can be fully satisfied by making the change proposed for Rule 12(c) of the Utah Rules of Small Claim Procedure. That is, the rules can provide that in a de novo review, “the district court may order parties to exchange information prior to trial.”
    There is no greater need to use formal discovery procedures in small claims actions than in administrative proceedings, which were discussed in the Petro-Hunt case.
    As indicated above, the Simler case noted that the appellant had not raised the issue of whether there was a constitutional right to a jury in the initial small claims trial in the justice court. Therefore, the opinion did not address that issue. Simler v. Chilel, supra, at ¶10 n. 1.
    However, the proposed rule changes appear to give that right to the defendant as if it were a constitutional right. That is, the legislature passed a law stating there should be no jury trial in small claims cases. It would be expected that the rules would only provide for a jury trial where it was constitutionally necessary. It has only been determined to be constitutionally necessary in a small claims trial de novo. Id. at ¶ 23.
    However, the United States Supreme Court addressed the issue of whether a person accused of a crime is entitled to a jury in the first instance, rather than in a trial de novo. Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976).
    The U.S. Supreme Court recognized that the Constitution required that “[t]he Trial of all Crimes … shall be by Jury.” Id., 427 U.S. at 630. The Court concluded, “Massachusetts absolutely guarantees trial by jury to persons accused of serious crimes, and the manner it has specified for exercising this right is fair and not unduly burdensome.” Id.
    Likewise, following the statute as to jury trials in small claims court, modified only as mandated by the decision in the Simler case, guarantees a trial by jury to parties in small claims cases. The manner specified for exercising this right (in a de novo review) is fair and not unduly burdensome.
    As to the appropriate rules changes, Rule 12(a) can be changed by adding the second sentence as proposed, omitting only the words “that was tried without a jury.” Thus, the second sentence would read:
    If a party appeals the judgment in a small claims action and any party meets the requirements of Utah Rules of Civil Procedure Rule 38(b), the trial de novo in the district court shall be by a jury in accordance with Utah Rules of Civil Procedure Rules 38, 39, 47, 48, 49, 50, 51 and 52.
    A. Removal is Not Required for a Jury Trial in the First Instance.
    Of course, the Utah Supreme Court may interpret the Utah Constitution to give a right to a small claims jury trial in the first instance. It is not bound by the U.S. Supreme Court’s interpretation of the United States Constitution.
    As indicated above, the legislature had a right to establish justice courts and give them jurisdiction over small claims cases. If a small claims jury trial in the first instance must be available, there is no reason it must be held in the district court.
    “Justice courts have jurisdiction over class B and C misdemeanors, violation of ordinances, and infractions committed within their territorial jurisdiction by a person 18 years of age or older.” Utah Code §78A-7-106. Therefore, justice courts commonly handle trials before juries comprised of four jurors. Utah Code §§78B-1-104 and 76-3-204
    “Justice courts have jurisdiction of small claims cases under Title 78A, Chapter 8, Small Claims Courts, if a defendant resides in or the debt arose within the territorial jurisdiction of the justice court.” Section 78A-7-106(6). There is no reason justice courts cannot handle trials before juries comprised of four jurors. Utah Code §§78B-1-104(1)(e) and 78A-8-102(1)(a)(i). This is especially true if the juries are impaneled under “simplified rules of procedure and evidence.” Utah Code §78A-8-102(8),
    Giving a defendant in a small claims action the unfettered right to remove the action to district court is a drastic departure from the statutes establishing small claims and allowing such claims to be heard in justice court.
    The ruling in the Simler case declaring that a defendant in a small claims action must have a right to a jury can be satisfied by a minimal change to the rule regarding appeals. Simler did not decide that the Utah Constitution requires a right to discovery or a right to a jury trial in the first instance, and in fact, it does not. The rules should not be changed as if there were such constitutional rights.
    However, if the Utah Supreme Court concludes that it is constitutionally bound to enact rules that will allow for discovery or for a jury trial in the first instance, the rules can still follow the clear statutory mandate that permits small claims cases to be heard in justice court under simplified rules of procedure and evidence, thus permitting speedy justice between the parties.

  13. Nick Dudoich

    We support the promulgation of Rules 2A and 4A of the Utah Rules of Small Claims Procedure and the amendments to Rules 1, 2, 3, 4, and 12, with minor suggestions explained below:

    Rule 4A allows a defendant served with a small claims lawsuit to remove the case to district court, where they can get discovery and a jury trial. This rule change gives defendants a forum to secure their constitutional rights to a fair trial (as indicated in the committee note to Rule 1).

    Removal of small claims actions to district court equivalents is a common practice in cases across the country. My last review of small claims rules in other states shows that transfer/removal is available to small claims defendants in several jurisdictions including Arizona, Hawaii, Kentucky, Montana, Nebraska, New York, North Dakota, Oklahoma, South Carolina, South Dakota, Virginia, and West Virginia.

    As Rule 4A(a)(1) is currently written, Utah small claims defendants must demand removal within 15 days of service of the small claims affidavit and summons. It appears that in a majority of the jurisdictions cited above allowing removal, more time is given to defendants to make this determination:

    Hawaii – any time before trial
    Kentucky – 7 days before trial
    Nebraska – 2 days before trial
    New York – any time prior to the day of trial
    North Dakota – 20 days after being served
    South Carolina – 5 days before trial
    Virginia – before the judge makes a ruling
    West Virginia – 40 days after being served

    In fact, only one jurisdiction that we see expressly allows a defendant less time to remove a small claims case – Montana: 10 days after service.

    We believe defendants in small claims lawsuits should be given 30 days to determine whether or not they want to remove the case to district court. This timing of 30 days is reasonable and analogous to other similar situations, such as the time a defendant has to remove to federal court (28 USC §1446(b)(1)) and the time a party has to appeal final judgment from a small claims or district court (URSCP 12(a), URAP 4(a)).

    In reviewing the other comments above, it does not seem that the commentators appreciate the role of certain constitutional protections under Utah law, including the right to a jury trial (Art. I § 10), procedural due process (Art. I § 7), open courts (Art. I § 11), and uniform operation of the law (Art. I § 24), which small claims defendants in Utah have previously not enjoyed.

    -Paul Belnap and Nick Dudoich of Strong & Hanni