Posted: August 10, 2017
Utah Rules of Civil Procedure – Comment Period Closed September 24, 2017
URCP006. Time. Amend. Adopts the prisoner mailbox rule, which provides that pleadings and papers filed or served by an inmate confined in an institution are timely if they are deposited in the institution’s internal mail system on or before the last day for filing. Also provides that if an unrepresented party does not have an electronic filing account, has been served by mail under rule 5(b)(3)(C), and response time is calculated from the filing date, response time will instead be calculated by the service date plus the 3 days under paragraph (c).
URCP026.03. Subpoena. Amend. In response to recent legislative updates to Utah Code section 78B-6-810, changes the language in paragraphs (b)(2) and (c) from “occupancy hearing” to “evidentiary hearing” and removes the language “to determine occupancy” in those paragraphs. Also removes the reference to commercial tenants in paragraph (a).
URCP045. Subpoena. Amend. Makes a technical amendment in conformity with Rule 6.
Paragraph (b)(2)(A)(ii) also needs the word “occupancy” changed to “evidentiary.”
Why was the word “occupancy” removed from some parts of Rule 26.3 but then left intact in other parts of the rule? See (b)(2)(A)(ii) and (c)(1)(B) – just saying
Dear Members of the Rules Committee and the Honorable Justices of the Supreme Court:
I write to comment on the addition of the Prison Mailbox Rule into Rule 6(e) of the Utah Rules of Civil Procedure.
Please note that these comments are my own and not those of my employer.
In February, I made comments to a previous draft of the rule, which was proposed to be inserted into Rule 5.
http://www.utcourts.gov/utc/rules-comment/2017/01/03/rules-of-civil-procedure-comment-period-closes-february-17-2017/#comment-1182
I appreciate the incorporation of my suggestions into proposed rule Rule 6(e). The rule, as presently drafted, will insure that institutionalized persons have access to the courts and will provide clarity in calculating response times to legal papers filed or served by inmates. I urge the Committee and the Court to adopt the proposed rule.
Rule 6(d) (lines 54-58):
Consider rewording as follows:
(d) Unrepresented parties. When a party may or must act within a specified time after filing, and that party is not represented by an attorney and does not have an electronic filing account, the time period is triggered by service and not by filing.
1) Consider deleting “service of that document is made by mail under Rule 5(b)(3)(C)” in line 56, as it should not be a requirement for application of the rule–if the document is filed and served on two different days, the date of service should govern for unrepresented parties regardless of whether it was served by mail.
2) Consider deleting “and the extra 3 days under paragraph (c) would apply” as it is redundant. If the committee thinks that it is necessary to clarify that paragraph (c) applies, it could be clarified in the advisory committee notes.
3) Consider deleting “Additional time after filing” from the title–as explained above, this change will not necessarily result in additional time if service is not made by mail.
4) The phrases “is unrepresented” and “does not have an electronic filing account” are the two requirements that must be met for the rule to apply, where the phrase “may or must act within a specified time after the filing of a document” is merely the circumstance that the rule applies to. As such, the circumstance the rule applies to should come first, and it should not be in the same series as the requirements that must be met for the rule to apply.
5) Consider replacing “unrepresented” in line 54 with “not represented by an attorney”–that makes it consistent with the language of Rule 5(b)(1).
6) Consider replacing “the filing of a document” with “filing”. First, the shorter form is consistent with Rule 6(c)’s usage of “service” rather than “service of the document.” Second, under Rule 5(e), “documents” are not filed, “papers” are.
7) Consider replacing “the period of time within which the unrepresented party may or must act” with “the time period” or perhaps just “the period”. The shorter phrases are used in Rule 6(a) and 6(c) and are sufficient to convey the intended meaning.
8) Consider replacing “is calculated from” with “is triggered by” so that it matches the language of Rule 6(a)(1)(A).
9) Consider replacing “the service date and not the filing date of the document” with “service and not by filing”. The word “date” should probably be avoided since Rule 6(a)(2) allows time to be counted in hours as well as days, and it is not used elsewhere in the rule.
Rule 6(e) (lines 59-71):
First, consider placing this at the end of Rule 5. This deals with filing and service as both are defined by Rule 5–in fact, it is an exception to Rule 5(b)(4) and 5(e). Additionally, it would cause less confusion over whether “service” only means Rule 5 service or both Rule 4 and 5 service if this rule were placed in Rule 5. (That said, the following suggested changes are formatted as though this were to be placed in Rule 6.)
Consider rewording as follows:
(e) Filing or service by inmate.
(e)(1)As used in these rules, an inmate is a person confined to an institution or committed to a place of legal confinement.
(e)(2) A paper filed or served under Rule 5 by an inmate is timely filed or served if it is deposited in the institution’s internal mail system on or before the last day for filing or service.
(e)(3) For purposes of computing time under Rule 6, a paper filed or served under this paragraph (e) is filed when it is accepted by the court and is served when it is placed in the mail as indicated by the date of the postmark.
(e)(4) A paper filed or served under this paragraph (e) must include a notarized statement or written declaration stating:
(e)(4)(A) the date of deposit and that first-class postage is being prepaid; or
(e)(4)(B) that the inmate has complied with any applicable requirements for legal mail set by the institution.
1) Consider replacing “For purposes of Rule 45(i) and this paragraph (e)” with “As used in these rules”–this language is consistent with indicating definitions in the rules (see Rule 17(f), Rule 54(a)). As I don’t believe that this definition must apply only to Rule 45(i) and 6(e), the more general language is probably preferable.
2) Consider replacing “Papers”, “are timely”, and “they are” in line 62 with “A paper”, “is timely”, and “it is”, respectively. See Garner, Guidelines for Drafting and Editing Court Rules, Para. 2.1 (“Draft in the singular number unless the sense is undeniably plural.”).
3) Consider inserting “under Rule 5” or “under Rule 5(b)” after “service” on line 62. This clarifies what type of service this applies to and obviates (or at least lessens) the need for Paragraph (e)(3).
4) Consider replacing “Timely filing or service may be shown by a contemporaneously filed” with “A paper filed or served under this paragraph (e) must include a”. First, the word “may” is misleading–this provision must be complied with in order for this exception to the time of filing. Second, this statement or declaration is basically a specialized certificate of service and should be “included” in the paper as stated in Rule 5(d) rather than contemporaneously filed” as a separate document (I’m sure the judges would rather not have the separate documents cluttering up their dockets).
5) Consider replacing “setting forth” in Line 64 with “stating” and deleting “stating” in line 65, or just replace “setting forth” with “setting out” as in Fed. R. App. P. 25(a)(2)(C)–I personally think the former option is more compact and preferable, as I can discern no difference between setting out and stating, but that’s just my opinion.
6) Consider deleting “has been, or” in Line 65–it seems unnecessary and is omitted from Fed. R. App. P. 25(a)(2)(C)(i).
7) Consider replacing “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” with “For purposes of computing time under Rule 6, a paper filed or served under this paragraph (e) is filed when it is received by the court and is served when it is placed in the mail as indicated by the date of the postmark”. First, “response time” is not used elsewhere in the rules, and Rule 6(a) “computes” rather than “calculates” time periods. Second, as explained above, “date” should be avoided if possible (although I don’t think I can avoid it when talking about the postmark). Third, under Rule 5(e), the court “accepts” rather than “receives” papers. Fourth, making the date of filing the date of service seems unadvisable, especially if the opposing party is pro se and does not have easy access to the date that the paper was filed. Finally, “mail” rather than “U.S. mail” is the language used in Rules 5(b)(3)(C) and 6(c).
8) Consider deleting “The provisions of paragraph (e)(2) do not apply to service of process, which is governed by Rule 4” from the text of the rule, and place in the advisory committee notes.