Rules of Civil Procedure – Comment Period Closes December 15, 2025

The proposed change to Rule 7(b) would require that “A request for an order related to a subpoena under Rule 45 must follow Rule 37(a).” But Rule 45(g) (45(c) under the proposed amendment) states, “Failure by any person without adequate excuse to obey a subpoena served upon that person is punishable as contempt of court.” A motion seeking a contempt citation falls under Rule 7A. Often the subject of the motion will not be a party to the action, so a Rule 37(a) motion seems inappropriate, especially since Rule 37(a)(8) prohibits a request for sanctions.

Proposed rule 37(a)(3) permits a non-party or person subject to a subpoena to object to a statement of discovery issues only if that non-party or person previously filed an objection. That limitation should be deleted. Due process requires that anyone affected by the statement of discovery issues be allowed to respond. For example, if a person fails to show for a deposition because that person never received notice, the person would also not have filed an objection. But the person should be allowed to respond to an SDI regarding that failure to show. Why require notice to the person (37(a)(2)(E)) and then deny the right to respond?

PUBLIC COMMENT ON PROPOSED AMENDMENTS TO URCP 108

Comment Period Closing December 15, 2025

Submitted by: Alyssa Gentry

To the Advisory Committee on the Utah Rules of Civil Procedure:

Thank you for the opportunity to comment on the proposed amendments to URCP 108. I submit this comment based on my personal observations in family court proceedings and the structural concerns created by the interaction between Rule 108 and Rule 6-401.

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I. Commissioners’ Authority Under Rule 6-401 Is Narrow and Does Not Permit Final Adjudication

URCP 6-401(a) states:

“A court commissioner shall not make final adjudications and may exercise the powers of a judge only to the extent authorized by the order of reference.”

URCP 6-401(b) further limits commissioner authority to specific delegated actions, all of which remain subject to a district judge’s oversight. A commissioner’s recommendation is therefore, by definition, non-final unless and until adopted by a judge.

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II. Rule 108 Has Been the Subject of Committee Attention Across Multiple Years

The Advisory Committee’s public agendas and archives show that Rule 108 has been under review across several years:

• Rule 108 was discussed at the November 17, 2010 Committee meeting.
• Rule 108 appeared on meeting agendas in May and October 2011.
• Rule 108 appeared on the February 24, 2021 and June 23, 2021 Committee agendas.

While these materials do not record detailed discussion, they reflect sustained recognition that this rule requires ongoing evaluation.

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III. Misapplication Has Occurred, and the Existing Ambiguity Creates a Continued Reasonable Risk of Repetition

Based on my personal observation of family court proceedings, there have been instances where commissioners have treated their recommendations as immediately enforceable orders notwithstanding a timely objection under Rule 108. These actions have included issuing enforcement directives and threatening contempt before any district judge has conducted de novo review. Such conduct conflicts with Rule 6-401, which prohibits commissioners from making final adjudications and requires judicial review before a recommendation can become an enforceable order.

In addition to these observed occurrences, the current ambiguity in Rule 108 creates a continued reasonable risk that similar misinterpretations will recur. The rule contains the phrase that a commissioner’s recommendation “is the order of the court,” yet it does not clarify whether a timely objection suspends enforceability nor reconcile this phrase with Rule 6-401’s jurisdictional limits. This unresolved tension leaves open the possibility that a non-final recommendation may be mistakenly treated as a binding judicial order.

The combination of actual misapplication and the structural risk of recurrence underscores the need for explicit clarification.

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IV. The Ambiguity Threatens Due Process and the Purpose of Rule 108

When a commissioner’s recommendation is enforced before a judge reviews it:

• a party’s right to meaningful de novo review is compromised;
• a non-final recommendation is treated as a final order;
• litigants may face immediate impacts on custody, residence, or financial obligations without judicial authorization;
• and self-represented litigants face particular disadvantage.

Rule 108 was designed to ensure that a litigant is not bound by a commissioner’s recommendation until the district judge adopts it. Its purpose is frustrated when enforcement occurs prematurely.

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V. Proposed Clarifying Language to Align Rule 108 With Rule 6-401 and Core Due-Process Protections

To resolve the ambiguity and prevent continued misapplication, I respectfully propose the following amendment, consistent with the structure of the published redline:

New Subparagraph (e): Effect of Objection; Stay of Enforcement

(e) Effect of Objection; Stay of Enforcement.
(1) A commissioner’s recommendation is not enforceable, and no order based on the recommendation may be executed, until either the time to file an objection expires without objection or the district judge enters an order upon de novo review.
*(Authority: URCP 6-401(a)–(b); URCP 108(a))

(2) While an objection is pending, the court may not issue a writ, enforcement order, or any compulsory directive based solely on the commissioner’s recommendation.
(Authority: URCP 6-401(a): “shall not make final adjudications.”)

(3) A commissioner’s recommendation becomes the order of the court only if no objection is filed within the time permitted.

Conforming Edit to URCP 108(d)(2)(B)

Add the following sentence:

Relief under this subparagraph may not be granted while a timely objection is pending unless ordered by the district judge after de novo review.

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VI. Conclusion

Because commissioners have, in some instances, treated their recommendations as enforceable orders despite timely objections, and because the text of Rule 108 contains an ambiguity that creates a continued risk of future misapplication, I respectfully ask the Committee to adopt clarifying language ensuring that a commissioner’s recommendation is not enforceable unless and until a judge adopts it following review.

Thank you for your consideration.