Posted: October 27, 2022
Rules of Appellate Procedure – Comment Period Closed December 11, 2022
URAP020. Habeas corpus proceedings. Repeal/Add Advisory Committee Note. The Committee is posting for public comment the addition of an Advisory Committee Note to the repealed rule. This note is intended to alleviate concerns in regards to repealing Rule 20. The Committee previously proposed repealing Rule 20 because it is superfluous and confusing, and could prejudice a criminal defendant’s opportunity to seek relief under the Post-Conviction Remedies Act (PCRA). Rules 65B and 65C of the civil rules, together with the PCRA, Utah Code § 78B-9-101 to -110, already provide mechanisms to challenge the lawfulness of any official detention.
URAP019. Extraordinary writs. The Committee proposes amending Rule 19 to: (1) incorporate a page and word limit, and a certificate of compliance, similar to the requirements in Rule 24 regarding briefs; (2) add the ability for the petitioner to file a reply after service of a response; (3) increase the amount of time to file a response from 7 days to 30; (4) add an Advisory Committee Note advising parties that although Rule 20 has been repealed, they still have the ability to file directly to the Supreme Court under Rule 19 under appropriate circumstances; and (5) clean up language for clarity and consistency.
URAP023. Motions. The Committee proposes substituting “discussion” for “memorandum.” The Committee believes that the word “memorandum” can lead individuals to file unnecessarily a separate document containing the facts and arguments supporting their requests, rather than merely including those facts and arguments in the original petition or motion.
URAP023C. Motion for emergency relief. The Committee proposes amending Rule 23C to (1) change the reference to Rule 19; (2) change the rule reference in paragraph (e) concerning form of papers from Rule 23(f) to Rule 27, as paragraph 23(f) was relocated to Rule 27 effective November 1, 2021; and (3) correct formatting for consistency. The rule currently refers to a specific subparagraph in Rule 19 that will be renumbered under the proposed amendments. To avoid cross-referencing problems that future amendments may create, the Committee recommends directing parties to the general rule rather than a specific paragraph.
I’d like to write once again in opposition of the proposed rule change. This is the third round of trying to get rid of rule 20. Probably the most alarming part of that is the changes in Rule 19 that make habeas relief harder to get.
The foundation of habeas corpus is that a wrongful restraint on liberty is so perverse to our society that the courts owe the individual the ability to get meaningful review in an emergency timeframe. Rule 20 includes a variety of procedures that treat habeas corpus petitions with the seriousness of that concern. An incarcerated pro se person can seek redress by serving the petition on the AG’s office in lieu of the actual responsible parties. Rule 20(b)(1). The court may order a stay or injunction pending the AG’s response. Id. The respondent must file within 10 days. Id. The contents that must go into the petition are clear because the Rule is tailored to a specific kind of petition (habeas).
Rule 19, particularly the newly proposed rule 19, winds all of this back.
-Rule 19’s service requirements are more complicated: The individual must identify all of the respondents in a Rule 19 motion, which may be extremely difficult to do in a speedy timeframe because the petitioner may not know who to name and even a quickly retained attorney may not be able to find out the information without a GRAMA request. The respondent may be a particular police officer who was responsible for the wrongful incarceration or the identity of a magistrate who signed off on a warrant. Warrants are searchable if someone has access to the internet and knows the applicable law enforcement agency, but people who get arrested don’t always know which agency arrested them and certainly don’t have access to the internet. When a person is held on a prefiling charge for longer than 4 days there is no way to know whether a magistrate is authorizing an extended detention at the request of a prosecutor or whether the jail is just holding them illegally since those detention orders don’t get published. In other words, Rule 19 allows a habeas petition to fail on procedural grounds simply because the inmate doesn’t know the identities of the responsible parties and where to serve them. That’s a backwards step.
-Rule 19 should not be modified to add a cumbersome procedural rule: The committee has proposed to add language to part (g) found in other rules (e.g. rules (4) and (5)) that should not be part of this rule. For ease of reference the language is: “No petition will be granted in the absence of a request by the court for a response. No response to a petition will be received unless requested by the court.” The effect of this language (that doesn’t exist in either the prior rule 19 or in Rule 20) creates an additional delay to habeas proceedings. In a petition for interlocutory appeal I filed recently, it took over a week before the court indicated whether a response brief was required. (Filed Nov. 8, Court’s order requiring response: Nov. 16). That’s a substantial procedural delay for a wrongfully incarcerated individual. It should be left out, not only for habeas petitions but for all petitions that are made because there is no other “plain, *speedy*, or adequate remedy” available. And when in all honesty is an appellate court going to receive a habeas petition and not want some kind of responsive pleading?
-Part (e), explaining the necessary contents of the petition, is generally okay except that, as discussed above, Rule 20’s habeas petitions give clear guidance on what the court is looking for to decide a habeas petition whereas Rule 19 is written broadly for any sort of emergency petition. While rules should generally be broad to accommodate a variety of cases, the breadth of the rule doesn’t seem to be a good tradeoff for the clarity of Rule 20 for habeas petition contents. If our appellate courts think that certain information should always be included for a given type of case to help them make the right decision, the rule should be explicit on what that information is.
-Modification for motions for emergency relief: The committee’s decision to scrap the quick filing deadlines for habeas petitions (i.e. the response being due within 10 days) to the standard length used for appellate briefs (i.e. 30 days) is not a significant concern given that a motion for emergency relief is available for an incarcerated individual. However, now that that rule takes over as the only mechanism for a speedy remedy, there is a concerning provision in that rule that indicating that service by mail requires service by overnight mail. I’d ask that before adoption of this rule, the committee confirm whether inmates are allowed to buy stamps for overnight mail from the jails in this state. Jails offer limited and sometimes arbitrary services to inmates. If inmates can’t take advantage of this rule and otherwise have to suffer through lengthened filing deadlines then that would defeat much of the point of a habeas petition.
The committee writes that the repeal or Rule 20 “is not intended to substantively affect a defendant’s right to a writ of habeas corpus.” But the proposal, without the modifications requested in this comment, do exactly that. Please keep working on this issue. It isn’t ready yet.
-David Ferguson
The plight of the innocent and wrongfully convicted is becoming more recognized. Everyday, there is some news story concerning an exoneration after “20 years”, or “30 years.” The reason it takes so long for the wrongfully convicted to obtain recourse is due to the broken post-conviction system that is not interested in the merits of claims of constitutional violations or claims of innocence, but interested only in finality.
The last resort left in our system for the wrongfully convicted is the Writ of Habeas Corpus. When justice requires, the “Great Writ” has been the guaranteed mechanism available for final recourse. The Committee’s proposed repeal of Utah Rule of Appellate Procedure 20, and other amendments to Rule 19, effectively takes this last resort away from the wrongfully convicted in Utah.
I respectfully request that the Committee take no action at this time on Rules 19 and 20 of the Utah Rules of Appellate Procedure, and to please seek more input and data from a variety of sources, including practitioners who practice regularly in the post-conviction process, before making changes. Respectfully, the proposed changes do little more than erase a constitutionally-based and critical right to those whose criminal convictions have been secured through unconstitutional means.
Some background:
The PCRA, by its own terms, claims to be the “sole remedy” for any defendant making a collateral challenge to a sentence or conviction, replacing “prior remedies for review, including extraordinary or common-law writs.” Utah Code §78B-9-102(1)(a).
However, and directly competing with the PCRA’s statement of being the sole remedy, the guarantee to aggrieved persons of the ability to petition for habeas corpus relief as guaranteed by both the Utah and Federal Constitutions, all provide some avenue of relief outside the PCRA statutory confines. This is a contention that the State of Utah vigorously opposes, but for purposes of this comment, this Committee must understand that the Writ of Habeas Corpus is constitutionally based, and especially so in the Utah constitution.
For example, not only do the courts have “original jurisdiction to issue all extraordinary writs and authority to issue all writs and process necessary to carry into effect its orders, judgments, and decrees or in aid of its jurisdiction”, but critical here, the ability of aggrieved persons to petition for habeas corpus relief is also guaranteed by both the Federal and Utah Constitutions. See e.g., U.S. Const. art. 1, § 9; Utah Const. art. 1, § 5;55 Utah Const. art. 8, §§ 3 and 5.
As the Utah Supreme Court recently explained, in detail, in Patterson v. State, “the people of Utah gave the courts the power to issue writs”; agreed that the Utah constitution’s plain language supports the proposition that the Legislature can neither expand nor diminish the substantive writ authority the people of Utah granted the judicial branch; and found that while both the Legislature and the Court can regulate the procedures used with respect to writs, neither the Legislature nor the Court can regulate that power in a way that violates a petitioner’s constitutional rights. 2021 UT 52, ¶ 4, 504 P.3d 92.
Also in Patterson, the Utah Supreme Court recognized that its power to issue writs comes from Article VIII, § 3 and 5, of the Utah Constitution, see id. ¶ 143, and that the people of Utah, in adopting those provisions in the 1984 amendments, would have recognized that the writ power was “broad in scope,” id. ¶ 135, and encompassed the Court’s power to “protect against the denial of a constitutional right in a criminal conviction.” Id. ¶ 133.
And finally, the State argued in Patterson that the legislature could regulate the Court’s writ authority so long as that regulation was “reasonable.” Id. ¶ 143. The Court squarely rejected this contention, instead agreeing with Patterson that “the constitution’s plain language supports the proposition that the Legislature can neither expand nor diminish the substantive writ authority the people of Utah granted the judicial branch.” Id. ¶ 144; see also id. ¶ 152 (citing authority).
Accordingly, these principles underlie my objections to the Committees proposed changes to the two rules that relate to the writ of habeas corpus and extraordinary writs, and I beg the committee to not amend the rules as proposed – and surely, do not repeal Rule 20.
Utah R. App. P. 20:
The Committee proposes a repeal of this rule altogether. The advisory committee note explains:
“The Appellate Rules Committee recommended 116 repealing Rule 20 (Habeas Corpus Proceedings) because it was duplicative of Rule 19 117 (Extraordinary Relief) and potentially caused incarcerated individuals to forgo filing a petition under the Post-Conviction Remedies Act (Utah Code Title 78B, Chapter 9). The 119 repeal is not intended to substantively affect a defendant’s right to a writ of habeas 120 corpus. Rule 19 of the Utah Rules of Appellate Procedure and Rules 65B and 65C of the 121 Utah Rules of Civil Procedure govern habeas corpus proceedings.”
Respectfully, the idea that Rule 20 “potentially causes incarcerated individuals to forgo filing a petition under the PCRA” is completely speculative, and at the very least, the Committee should pull additional data and ascertain the validity of this belief.
Instead, and though it is not the Committee’s intent to substantively affect a defendant’s right to a Writ of Habeas Corpus, the repeal of the “Habeas Corpus Rule” does just that. Not only would a repeal erase altogether any mention of the specific writ of habeas corpus, but a repeal creates even more “potential confusion” as to whether this constitutionally-based right still exists. Unless Rule 19 specifically details the procedures for how a petitioner can seek redress and file a Petition for Habeas Corpus outside the PCRA (which it does not), then repeal of Rule 20 is not remedying “any confusion” on the part of incarcerated individuals, it is adding to it by inferring this longstanding right no longer exists.
As for the changes to Rule 19:
Nowhere does Rule 19 delineate the procedures for the “writ of habeas corpus”; nor does Rule 65B of the Utah Rules of Civil Procedure. Although the advisory committee note to Rule 19 states that Rule 20 was essentially duplicative of Rule 19, it is not. The writ to habeas corpus and its purpose of protecting against the denial of a constitutional right in securing a criminal conviction, is not delineated in any other rules, and any mention of this particular writ will be effectively erased through the repeal of Rule 20.
Indeed, the Advisory Committee Note and the intention that “Rule 19 of the Utah Rules of Appellate Procedure and Rules 65B and 65C of the Utah Rules of Civil Procedure govern habeas corpus proceedings” is misguided, forgetting altogether the principles delineated above that the “Great Writ” is independent of the PCRA (the procedures of which are set forth in Rule 65C), and Rule 65B never utters the words or purpose of the writ of habeas corpus.
Also, any “regard” for the plight of incarcerated persons is missing in the proposed amendments to this rule. The committee must understand that filing fees, requirements for service upon the State and multiple respondents, and strict time limitations and deadlines, are the death knoll for an incarcerated person’s legal claims. Abundant time is taken to determine indigence and whether filing fees should be waived (they should). Thus, the requirement that the petitioner pay the prescribed filing fee at the time of filing is both impractical and impossible for most. See Proposed Rule 19(d). The prison mail system also makes filings based on strict time strictures an impossibility, and often, the incarcerated person receives an order or the document requiring a response well into, or after, the time period prescribed for a response or action. And, incarcerated persons do not have access to adequate legal resources (and likely, not even access to the Court’s rules), to even be able to decipher who their legal filings need to be served upon.
Please also make the timing requirements equal to both sides. Often, the Respondent’s (the State’s) response is due within a number of days, “or within such other time as the court orders.” E.g. Proposed Rule 19(g)(1). The same discretion for presumably good cause is not granted to the petitioner, an exception that is especially needed for an incarcerated and often pro se petitioner. E.g. Proposed Rule 19 (h).
Rule 19(g)(3) – The language relating the State’s response is confusing. Just require that the response must respond to the items in paragraph (e). Why does the Respondent get so many loopholes that allow it to never respond to the actual issues raised?
Rule 19(g)(4) – After being ordered to respond by a court, why would a Respondent be allowed to choose not to appear or file a response, and moreover, why, if the respondent is allowed not to respond, would the allegations left unanswered “not thereby be deemed admitted”? If the Court has ordered a response, then the Respondent should not be allowed to simply do nothing and suffer no “sanction” for its inaction in responding.
Rule 19(i) – Why the necessity for word limits? I know this is an unpopular position. But this is the incarcerated person’s only/last chance to present his/her legal claims of constitutional violations they feel they have suffered. They are usually not represented by counsel; they have inadequate legal resources; and they usually have no aid of an attorney. A word limit, and especially one of less than what is afforded in a direct appeal, is not necessary. Just give the petitioner the chance to state his or her claims, whatever they may be and however long it takes. This may be their only opportunity.
You can repeal and amend-to-oblivion these rules. All that will do is oblige the Supreme Court to deal with the right enshrined in the Constitution without guidance or regulation.
Who are we, if we say, “You can’t avail yourself of a Constitutional Right, because we repealed the instructions to do that fairly and efficiently”?
This amendment is the product of small minds. The Judiciary of a State of the Union should reject it as the trash that it is.