Posted: October 20, 2016
Rules of Civil Procedure – Comment Period Closed December 4, 2016
URCP007 Pleadings allowed; motions, memoranda, hearings, orders. Amend. Returns pre-2015 paragraph (b)(2) language addressing limits on orders to show cause to new paragraph (q).
URCP065C Post-conviction relief. Amend. Expressly makes all records in the criminal case under review, including the records in an appeal of that conviction, part of the trial court record in the petition for post-conviction relief.
The change to URCP rule 7 is very welcome. It should remove current confusion regarding what constitutes grounds for obtaining an order to show cause on the basis of non-compliance with an order.
However, there should also be a provision allowing orders to show cause why a matter should not be dismissed for failure to prosecute in a timely manner under various other rules and for other failures to comply with rules or statute. One might say the Court implicitly adopts those rules as orders in its case management scheme, but such an argument is debatable.
Comment on proposed Rule 7(q) addition. This may stem from my own lack of knowledge, but is there any indication whether an “existing order” will include oral orders from the court? In some cases there is a significant lapse between the court’s oral order and when counsel either agree to the language of the written order or go through an objection hearing on disputed language. May a party bring a 7(q) order to show cause prior to a written order? If this is already addressed in another rule or case law, I apologize. If not, it might be worth clarifying in a comment or in the rule.
I suggest that the amendment to Rule 7(q) be modified to also include support by unsworn declaration as allowed by 75B-5-705. See below:
Draft: September 28, 2016
Rule 7(q)
Limit on order to show cause.
An application to the court for an order to show cause shall be made only for enforcement of an existing order or for sanctions for violating an existing order. An
application for an order to show cause must be supported by an affidavit “or unsworn declaration” sufficient to show cause to believe a party has violated a court order.
78B-5-705 Unsworn declaration in lieu of affidavit.
(1) If the Utah Rules of Criminal Procedure, Civil Procedure, or Evidence require or permit a written
declaration upon oath, an individual may, with like force and effect, provide an unsworn written
declaration, subscribed and dated under penalty of this section, in substantially the following
form:
“I declare (or certify, verify, or state) under criminal penalty of the State of Utah that the
foregoing is true and correct.
Executed on (date).
(Signature)”.
(2) A person who knowingly makes a false written statement as provided under Subsection (1) is
guilty of a class B misdemeanor.