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

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.

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.

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.

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.

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.

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.
I. THE INTENT OF THE LEGISLATURE SHOULD BE HONORED TO THE EXTENT POSSIBLE.
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.
II. THERE IS NO CONSTITUTIONAL RIGHT TO DISCOVERY.
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.
III. THE RIGHT TO A JURY TRIAL ON APPEAL SATISFIES THE UTAH CONSTITUTION.
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),
CONCLUSION
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.