Rules of Civil Procedure – Comment Period Closed February 17, 2017

Dear Members of the Rules Committee and the Honorable Justices of the Supreme Court:

I write to comment regarding the proposed amendment to Rule 5. I am the Section Director of the Civil Rights Section of the Litigation Division of the Utah Attorney General’s Office. I defend government agents and agencies against claims of civil rights violations, which often includes claims brought by incarcerated persons. I have experience with the issues created when inmates are required to serve and file documents with the court and with opposing parties within a certain period of time. I write to support the suggested rule change, but to also suggest a few changes to make the rule clearer, more manageable, and fairer for all parties involved. Though I have consulted with other Assistant Utah Attorneys General in the preparation of these comments, please note my comments are made from me, have not been approved by the Office of the Attorney General, and may not be the opinion of the Office, the Division, or other employees.

I generally support the codification of the “prison mailbox” rule into the Rules of Civil Procedure. In my experience defending the Utah Department of Corrections and its employees, a prisoner’s mail may be delayed as much as five days from the time it is received by the mailroom of the Utah State Prison or the Central Utah Correctional Facility to reach the prisoner for incoming mail, or placed in outgoing mail by the prisoner to reach the Postal Service. This is because the mailroom must review and X-ray all incoming and outgoing mail. And even though the mailroom does not read items marked “Legal Mail,” the sheer volume of mail processed by these institutions daily slows the process for all pieces of mail. The process may be delayed even further if the prisoner is indigent and needs to follow required processes for free postage for legal mail. As a result, prisoners at the Prison may only have a few days to respond to dispositive motions, discovery, or other time-sensitive, litigation-related documents.

Accordingly, the attorneys in the Civil Rights Section generally apply a “de facto” prison mailbox rule. We generally do not seek to strike pleadings for timeliness unless they were not deposited in the prison’s internal mail system until well after the due date. We also generally calculate our response times from the U.S. mail postmark date, or on the date docketed by the court. We have not had any serious challenges or issues with such a practice. However, our informal practice does result in ambiguity regarding when documents are actually due, and whether the court has or will properly process them.

Codifying a prison mailbox rule would be beneficial to all parties. It would give both the inmate and those litigating against the inmate the confidence that pleadings and other papers would be timely filed and served and would reduce ambiguity regarding every party’s responsibility.

However, a number of changes to the proposed rule should be made in order to meet those goals. First, the rule should be modified to include documents that are served and not filed, and to take into account response times for such documents. Second, the rule should be modified to recognize the legal mail procedures at institutions and the necessity of indigent postage filings.

SUGGESTED CHANGES TO PROPOSED RULE:
(1) The rule should be modified to include documents that are only served and need not be filed.

The current rule mentions only papers “filed” by an inmate confined in an institution. This language comes largely from the pre-December 2016 version of Federal Rule of Appellate Procedure 25(a)(2)(C), the only federal rule that creates any sort of prison mailbox rule.

In the appellate courts, where virtually all documents are filed, this language would be sufficient. However, at the trial level, there are a number of documents that do not need to be filed with the Court that are regularly served upon opposing parties. The most common types of these documents are requests for discovery and responses thereto.

This issue is further exacerbated by the fact that the Committee has suggested that districts, by local rule, may prohibit the filing of discovery with the court, and may even prohibit the filing of certificates of service related to the discovery. If such rules were enacted, either the proposed prison mailbox rule would be ineffective, or calculating deadlines to respond would be virtually impossible. I therefore suggest that the proposed rule be amended to include options for calculating response dates to documents that are served but not filed. My proposal starts the time from when the document is placed in U.S. Mail (the postmark date) rather than the date the inmate places the document in the prison’s internal mail system. This provides the most certainty as postmarks are not manipulable by inmates and avoids the mailroom delay discussed above.

However, by adding a discussion of documents “served,” unrepresented inmates may believe that service of process may be effected by mail. Such service on governmental entities is generally not allowed under the Utah Rules of Civil Procedure. E.g., Utah R. Civ. P. 4(d)(1)(J). Accordingly, language should be added to distinguish service of papers from service of process.

(2) The rule should be modified to recognize legal mail requirements at correctional institutions and to adapt to the necessity of indigent postage.

The rule, as currently written, requires an inmate to certify that at the time of deposit in the prison mail system “first-class postage has been prepaid.” Additionally, the rule eschews former Federal Rule of Appellate Procedure 25(a)’s requirement that the inmate has used any available internal prison mail systems. The result of this is that the current rule requires inmates to prepay postage. Many, if not most, inmates are indigent, and do not have the means to prepay postage. Following the U.S. Supreme Court’s requirement that inmates be provided “at state expense with paper and pen to draft legal documents … and with stamps to mail them,” Bounds v. Smith, 430 U.S. 817, 825 (1977), the Utah Department of Corrections has implemented policies to provide postage to inmates for purposes of legal mail. See, e.g. Utah Department of Corrections, Insitutional Operations Division Manual, FD03 Inmate Mail, available at https://webapps.corrections.utah.gov/webdav_pub/F%20-%20Institutional%20Operations%20Public%20Policy/FD03%20-%20Inmate%20Mail.pdf; Utah Department of Corrections, Institutional Operations Division Manual, FD15/2.02 Indigent Mail, available at https://webapps.corrections.utah.gov/webdav_pub/F%20-%20Institutional%20Operations%20Public%20Policy/FD15%20-%20Indigent%20Status.pdf. However, to qualify, inmates must properly comply with Department of Corrections procedures, including properly requesting indigent postage for legal mail and verifying their indigent status. Id.

Accordingly, the rule, as drafted, is insufficient to describe the process or availability of inmate mail. Inmates will not be able to certify that postage has been prepaid, as currently required by the proposed rule, when indigent. However, inmates should also not have the benefit of the prison mailbox rule if they flout the institution’s rules (for example, by not providing an affidavit of indigency in their request for legal mail franking) in an attempt to get free postage. The rule should be modified to both provide inmates the flexibility to receive the benefit of the rule even if they cannot prepay postage, while respecting correctional institution’s requirements for free mail. The language provided incorporates some of the new Appellate Rule 25(a)’s requirements, while maintaining a simpler format.

SUGGESTED, AMENDED RULE:

Papers filed or served by an inmate confined in an institution are timely filed or served if they are deposited in the institution’s internal mail system on or before the last day for filing or service. Timely filing or service may be shown by a notarized statement or written declaration setting forth the date of deposit and stating that first-class postage has been, or is being, prepaid, and that the inmate has complied with any applicable requirements for legal mail set by the institution. Response time will be calculated from the date the papers are received by the court, or, for papers served on parties that do not need to be filed with the court, the postmark date the papers were deposited in U.S. mail, plus any time added by Utah Rule of Civil Procedure 6.

The provisions in this subsection do not apply to service of process, governed by Utah Rule of Civil Procedure 4.

Thank you for your consideration, and feel free to contact me with any questions.
Kyle Kaiser
Section Director, Civil Rights Section
Litigation Division
Utah Attorney General’s Office