Posted: November 20, 2019
Rules of Appellate Procedure – Comment Period Closed January 4, 2020
URAP005. Discretionary appeals from interlocutory orders. Amend. The proposed amendments to Rules 5 and 10 incorporate substantial changes meant to streamline and modernize the appellate process. For example, the proposed addition of subsection (j) in Rule 5 defines the record on appeal and permits a party to submit an appendix to be filed separately with the party’s principal brief. The proposed amendments authorize citations to the record, to an appendix, or both.
URAP010. Procedures for summary disposition or simplified appeal process. Amend. The proposed amendments to Rule 10 allow specific classes of appeals to be designated for expedited review. The proposed amendments also narrow the grounds for parties to seek summary disposition by limiting such motions to jurisdictional objections. The Court retains its right to summarily dismiss, affirm, or reverse a case on its own initiative.
Why do the amendments to Rule 10, dealing with the “simplified appeal process,” use the term “well-settled” law, and twice? Who is to say what is “well-settled”? The courts? the appellant? Do you have to have client-consent to file for a Rule 10 expedited appeal? What if the appellant files it without client consent In the criminal context, it seems like grounds for a challenge to the effectiveness of appellate defense counsel if s/he files the motion under 10(b)(2)(E) and misses some legal development or the pocket part of a statutory update, and the AG doesn’t respond. Having Utah’s appointed attorney appellate roster alone, does not guarantee effective assistance on appeal every single time. Appellate attorneys are human too.
It doesn’t need to be in lines 34-35, and I don’t know what it means in line 45. I would take “well-settled” out of lines 34-35, and 45. Leave the procedure just for sentencing appeals, but even then, the aforementioned scenario could still occur.
Re Simplified Appeal Process:
The elements of the principal memoranda are designed for the appellant. If the appellee thinks an issue is not preserved, there is no place that gets addressed as (c)(2)(B) is about listing issues and showing they are preserved. I suppose one could ignore the text, but it does seem off. Also, what happens if there are cross-appeals sent into Simplified Appeal Process? Do the page limits remain? Is that to be addressed by the scheduling order?
Re: rule 10.
I’m generally in favor of allowing an expedited appeals process for a variety of reasons, but it’s not clear exactly what problem these changes are meant to solve/address. I wonder if there might be a better mechanism than modifying the summary dispo rule only. For example, changing rule 31 comes to mind, or maybe a comprehensive set of changes to rules 10 and 31.
In any event, the amended rule appears out of joint with standing order 11 regarding paper vs. electronic, etc. The rule points to 23(f)(2)-(3) for form, but 23(f) is antiquated (the “ten characters per inch” directive only applies to monospaced fonts, monospace fonts are suboptimal, and characters per inch cannot be translated into a font’s point size). 23(f) also suggests that paper copies need to be filed with the court, but amended rule 10 makes that somewhat confusing because it only references subsections 2 and 3, but not 1 (where the number of copies to be delivered resides).
Given standing order 11 says that no paper copies need be filed for papers other than briefs, this situation will likely be confusing to appellants who aren’t frequent flyers in the court of appeals. Is a rule 10 memorandum a brief under SO 11, or a “document other than a brief.”
Granted it may be that efiling is right around the corner and SO 11 will be codified soon, and it may also be that rule 23 will be revised soon. But there is potential confusion in the interim.
In addition, it’s not clear how/on what timeline the appellee can contest a motion for simplified appeals process. Nor why the appellee shouldn’t be able to move for a simplified process in the first instance.
Re: rule 5.
If we’re modernizing the rule, I suggest we change the timeline for petitioning from 20 days to 21 days. That would be good for consistency, as it appears that most of our somewhat-recently-updated rules (ie., civ pro) express timelines in multiples of 7, ie. 7, 14, 21, 28 …
Rule 10:
1. The changes on Lines 17-18 (deleting the 10-day response time for summary dispo motions) has the effect of making summary dispo motions under (a)(1) subject to the timing requirements of rule 23. Rule 23 allows the court to change the response time. It also allows for a reply. If that change was unintentional, you could tack the following sentence onto the end of Line 4, “The parties moved against shall have 10 days from the service of such a motion in which to file a response.”
2. The wording on Lines 34-35 and Line 45 create a significant ambiguity–it is not clear whether appeals for the categories listed on Lines 39-44 must also “involv[e] the application of well-settled law to a set of facts,” or whether they are stand-alone categories that will always warrant a simplified appeal. The problem is in the placement of the phrase “for appeals involving the application of well-settled law to a set of facts” on Line 34. Preceding that phrase with “and” makes it sound like that is not the controlling test. Assuming the application of well-settled law to a set of facts is a minimum requirement applicable to all simplified appeals, I suggest one of the two following changes:
a) Rewrite Lines 34-35 as follows: “For appeals involving the application of well-settled law to a set of facts, the court may, after a docketing statement has been filed, designate the appeal for a simplified appeal process.”
That should make it clear that Line 45 is a catchall, and that the list on Lines 39-44 is illustrative of types of cases that typically meet that test.
-or-
b) Delete “and for appeals involving the application of well-settled law to a set of facts,” from Lines 34-35. Rewrite Line 39 as follows: “(b)(2) Appeals eligible for a simplified process are those involving the application of well-settled law to a set of facts, which may include, but are not limited to, cases in the following categories:”
Then delete Line 45.
Rule 5:
If the changes proposed to rule 21 are adopted, consider not including the email addresses in Rule 5 (Lines 16-18 and 55-57). They will be redundant. Any reference to “filing” in Rule 5 will automatically trigger the new Rule 21.
You could also get rid of the proposed references to paper copies and emailed copies on Lines 12-13 and 54-55 and just refer to filing a “petition” or “answer” (deleting “original and five copies of the” etc. from the current rule). Rule 21 will make it clear that hard copies or emailed copies are acceptable. But references to emailed copies would be less glaringly redundant with Rule 21 than the email addresses.