Second Substitute S.B. 111

Representative Wayne A. Harper proposes the following substitute bill:

1 PROCESS SERVERS
2 2003 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Michael G. Waddoups
5 This act modifies provisions relating to constables and private investigators. It provides
6 that constables may serve all forms of process, and limits the forms of process that can be
7 served by private investigators.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 17-25-1, as last amended by Chapter 198, Laws of Utah 1996
11 78-12a-2, as last amended by Chapter 314, Laws of Utah 1995
12 78-36-10.5, as last amended by Chapter 118, Laws of Utah 1998
13 REPEALS:
14 78-27-58, as last amended by Chapter 225, Laws of Utah 1993
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 17-25-1 is amended to read:
17 17-25-1. General powers and duties.
18 (1) Every constable shall:
19 (a) attend the justice courts within his city or county when required by contract or court
20 order; and
21 (b) execute, serve, and return all process directed or delivered to him by a judge of the
22 justice court serving the city or county, or by any competent authority within the limits of this
23 section.
24 (2) Any constable may serve any process [a private process server may serve under
25 Section 78-12a-2 ] throughout the state.

26 [(3) Constables appointed by counties may serve:]
27 [(a) all other process that originates in the county the constable serves; and]
28 [(b) all process to be served within the geographical boundaries of the county the
29 constable serves.]
30 [(4) Constables appointed by cities may serve:]
31 [(a) all other process that originates in the city the constable serves; and]
32 [(b) all process to be served within the geographical boundaries of the city the
33 constable serves.]
34 Section 2. Section 78-12a-2 is amended to read:
35 78-12a-2. Process servers.
36 (1) Persons who are not peace officers, constables, sheriffs, or lawfully appointed
37 deputies of such officers, or authorized state investigators may not serve any forms of civil or
38 criminal process other than complaints, summonses, and subpoenas.
39 [(1)] (2) The following persons may serve all process issued by the courts of this state
40 except as otherwise limited by [Section 78-27-58 ] Subsection (1):
41 (a) a peace officer employed by any political subdivision of the state acting within the
42 scope and jurisdiction of his employment;
43 (b) a sheriff or appointed deputy sheriff employed by any county of the state;
44 (c) a constable serving in compliance with applicable law;
45 (d) an investigator employed by the state and authorized by law to serve civil process[;
46 and].
47 [(e) private investigators licensed in accordance with Title 53, Chapter 9, Private
48 Investigator Regulation Act.]
49 (3) Private investigators licensed in accordance with Title 53, Chapter 9, Private
50 Investigator Regulation Act, may only serve the following forms of process:
51 (a) petitions;
52 (b) complaints;
53 (c) summonses;
54 (d) supplemental orders;
55 (e) orders to show cause;
56 (f) notices;

57 (g) small claims affidavits;
58 (h) small claims orders;
59 (i) writs of garnishment;
60 (j) garnishee orders;
61 (k) restraining orders; and
62 (l) subpoenas duces tecum.
63 [(2)] (4) Other persons may serve process as prescribed by [Section 78-27-58 ]
64 Subsection (1).
65 [(3)] (5) A person serving process shall legibly document the date and time of service
66 and his name and address on the return of service.
67 Section 3. Section 78-36-10.5 is amended to read:
68 78-36-10.5. Order of restitution -- Service -- Enforcement -- Disposition of
69 personal property -- Hearing.
70 (1) Each order of restitution shall:
71 (a) direct the defendant to vacate the premises, remove his personal property, and
72 restore possession of the premises to the plaintiff, or be forcibly removed by a sheriff or
73 constable;
74 (b) advise the defendant of the time limit set by the court for the defendant to vacate
75 the premises, which shall be three business days following service of the order, unless the court
76 determines that a longer or shorter period is appropriate under the circumstances; and
77 (c) advise the defendant of the defendant's right to a hearing to contest the manner of
78 its enforcement.
79 (2) (a) A copy of the order of restitution and a form for the defendant to request a
80 hearing as listed on the form shall be served in accordance with Section 78-36-6 by a person
81 authorized to serve process pursuant to [Section 78-27-58 ] Subsection 78-12a-2 (1). If personal
82 service is impossible or impracticable, service may be made by:
83 (i) mailing a copy of the order and the form to the defendant's last-known address and
84 posting a copy of the order and the form at a conspicuous place on the premises; or
85 (ii) mailing a copy of the order and the form to the commercial tenant defendant's
86 last-known place of business and posting a copy of the order and the form at a conspicuous
87 place on the business premises.

88 (b) A request for hearing by the defendant may not stay enforcement of the restitution
89 order unless:
90 (i) the defendant furnishes a corporate bond, cash bond, certified funds, or a property
91 bond to the clerk of the court in an amount approved by the court according to the formula set
92 forth in Subsection 78-36-8.5 (2)(b); and
93 (ii) the court orders that the restitution order be stayed.
94 (c) The date of service, the name, title, signature, and telephone number of the person
95 serving the order and the form shall be legibly endorsed on the copy of the order and the form
96 served on the defendant.
97 (d) Within ten days of service, the person serving the order and the form shall file
98 proof of service in accordance with Rule 4(h), Utah Rules of Civil Procedure.
99 (3) (a) If the defendant fails to comply with the order within the time prescribed by the
100 court, a sheriff or constable at the plaintiff's direction may enter the premises by force using the
101 least destructive means possible to remove the defendant.
102 (b) Any personal property of the defendant may be removed from the premises by the
103 sheriff or constable and transported to a suitable location for safe storage. The sheriff or
104 constable may delegate responsibility for storage to the plaintiff, who shall store the personal
105 property in a suitable place and in a reasonable manner.
106 (c) The personal property removed and stored shall be inventoried by the sheriff or
107 constable or the plaintiff who shall keep the original inventory and personally deliver or mail
108 the defendant a copy of the inventory immediately after the personal property is removed.
109 (4) (a) After demand made by the defendant within 30 days of removal of personal
110 property from the premises, the sheriff or constable or the plaintiff shall promptly return all of
111 the defendant's personal property upon payment of the reasonable costs incurred for its removal
112 and storage.
113 (b) The person storing the personal property may sell the property remaining in storage
114 at a public sale if:
115 (i) the defendant does not request a hearing or demand return of the personal property
116 within 30 days of its removal from the premises; or
117 (ii) the defendant fails to pay the reasonable costs incurred for the removal and storage
118 of the personal property.

119 (c) In advance of the sale, the person storing the personal property shall mail to the
120 defendant's last-known address a written notice of the time and place of the sale.
121 (d) If the defendant is present at the sale, he may specify the order in which the
122 personal property shall be sold, and only so much personal property shall be sold as to satisfy
123 the costs of removal, storage, advertising, and conducting the sale. The remainder of the
124 personal property, if any, shall be released to the defendant. If the defendant is not present at
125 the sale, the proceeds, after deduction of the costs of removal, storage, advertising, and
126 conducting the sale shall be paid to the plaintiff up to the amount of any judgment the plaintiff
127 obtained against the defendant. Any surplus shall be paid to the defendant, if the defendant's
128 whereabouts are known. If the defendant's whereabouts are not known, any surplus shall be
129 disposed of in accordance with Title 67, Chapter 4a, Unclaimed Property Act.
130 (e) The plaintiff may donate the property to charity if:
131 (i) the defendant does not request a hearing or demand return of the personal property
132 within 30 days of its removal from the premises; or
133 (ii) the defendant fails to pay the reasonable costs incurred for the removal and storage
134 of the personal property; and
135 (iii) donation is a commercially reasonable alternative.
136 (f) If the property belonging to a person who is not a defendant is removed and stored
137 in accordance with this section, that person may claim the property by delivering a written
138 demand for its release to the sheriff or constable or the plaintiff. If the claimant provides
139 proper identification and evidence of ownership, the sheriff or constable or the plaintiff shall
140 promptly release the property at no cost to the claimant.
141 (5) In the event of a dispute concerning the manner of enforcement of the restitution
142 order, the defendant or any person claiming to own stored personal property may file a request
143 for a hearing. The court shall set the matter for hearing within ten days from the filing of the
144 request, or as soon thereafter as practicable, and shall mail notice of the hearing to the parties.
145 (6) The Judicial Council shall draft the forms necessary to implement this section.
146 Section 4. Repealer.
147 This act repeals:
148 Section 78-27-58, Service of judicial process by persons other than law
149 enforcement officers.