Senator Kirk A. Cullimore proposes the following substitute bill:


1     
JOINT RESOLUTION TO AMEND THE RULES OF CIVIL

2     
PROCEDURE ON DISQUALIFICATION OF A JUDGE

3     
2020 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Kirk A. Cullimore

6     
House Sponsor: Michael K. McKell

7     

8     LONG TITLE
9     General Description:
10          This joint resolution amends the Utah Rules of Civil Procedure, Rule 63, regarding the
11     disqualification of a judge.
12     Highlighted Provisions:
13          This resolution:
14          ▸     amends the Utah Rules of Civil Procedure, Rule 63, on disqualifying a judge
15     without cause and for cause; and
16          ▸     makes technical and conforming changes.
17     Special Clauses:
18          None
19     Utah Rules of Civil Procedure Affected:
20     AMENDS:
21          Rule 63, Utah Rules of Civil Procedure
22     

23     Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each
24     of the two houses voting in favor thereof:
25          As provided in Utah Constitution Article VIII, Section 4, the Legislature may amend
26     rules of procedure and evidence adopted by the Utah Supreme Court upon a two-thirds vote of
27     all members of both houses of the Legislature:
28          Section 1. Rule 63, Utah Rules of Civil Procedure is amended to read:
29          Rule 63. Disability or disqualification of a judge.
30          (a) Disqualification of a judge without cause.
31          (a) (1) Motion to disqualify without cause.
32          (a) (1) (A) In a civil action pending in a court in a county with seven or more district
33     court judges, each side may file a motion to disqualify one judge without cause, and if the
34     motion is timely under paragraph (a) (2), the motion must be granted.
35          (a) (1) (B) Even if two or more parties on one side of an action have adverse or hostile
36     interests, an action, whether single or consolidated, must be treated as only having two sides
37     for purposes of a motion to disqualify a judge without cause.
38          (a) (1) (C) In an action, a side may not file a motion for more than one disqualification
39     of a judge without cause.
40          (a) (1) (D) Regardless of when a party joins an action, a party may not file a motion to
41     disqualify a judge without cause if the motion is untimely under paragraph (a)(2).
42          (a) (1) (E) Nothing in this paragraph (a) precludes the right of any party to file a motion
43     to disqualify a judge for cause under paragraph (b).
44          (a) (2) Filing a motion to disqualify a judge without cause.
45          (a) (2) (A) In filing a motion to disqualify a judge without cause, a party is not required
46     to state any reason for disqualifying the judge, but the party must attest in good faith that the
47     motion is not being filed:
48          (a) (2) (A) (i) for the purpose to delay any action or proceeding; or
49          (a) (2) (A) (ii) to disqualify the judge on the grounds of race, gender, or religious
50     affiliation.
51          (a) (2) (B) The motion must be filed:
52          (a) (2) (B) (i) on the side of a plaintiff or petitioner, within seven days after the day on
53     which a judge is first assigned to the action or proceeding; or
54          (a) (2) (B) (ii) on the side of a defendant or respondent, before or at the time of the first
55     filing by the defendant or respondent with the court.
56          (a) (2) (C) A motion to disqualify a judge without cause must be accompanied by a
57     request to submit for decision.
58          (a) (2) (D) Failure to file a timely motion precludes the disqualification of a judge
59     under this paragraph (a).
60          (a) (3) Assignment of action.
61          (a) (3) (A) Upon the filing of a motion under paragraph (a)(1), the judge assigned to the
62     action must take no further action in the case.
63          (a) (3) (B) The action must be promptly reassigned to another judge within the county.
64          (a) (3) (C) If the action is unable to be reassigned to another judge within the county,
65     the action may be transferred to a court in another county in accordance with Utah Code
66     Section 78B-3-309.
67          (a) (4) Exceptions.
68          (a) (4) (A) Notwithstanding paragraphs (a)(1), (a)(2), and (a)(3), a party may not
69     disqualify a judge without cause:
70          (a) (4) (A) (i) in any proceeding regarding a petition for postconviction relief under
71     Rule 65C;
72          (a) (4) (A) (ii) on a petition to modify child custody, child support, or spousal
73     maintenance, unless the judge assigned to the action is not the same judge assigned to any of
74     the previous actions between the parties;
75          (a) (4) (A) (iii) in an action on remand from an appellate court; or
76          (a) (4) (A) (iv) if, under paragraph (a)(3)(C), an action is unable to be transferred to a
77     court in another county in accordance with Utah Code Section 78B-3-309.
78          (b) Disability or disqualification for cause.
79          [(a)] (b) (1) Substitute judge; Prior testimony. If the judge to whom an action has
80     been assigned is unable to perform his or her duties, then any other judge of that district or any
81     judge assigned pursuant to Judicial Council rule is authorized to perform those duties. The
82     judge to whom the case is reassigned may rehear the evidence or some part of it.
83          [(b)] (b) (2) Motion to disqualify; affidavit or declaration.
84          [(b)(1)] (b) (2) (A) A party to an action or the party's attorney may file a motion to
85     disqualify a judge for cause. The motion must be accompanied by a certificate that the motion
86     is filed in good faith and must be supported by an affidavit or unsworn declaration as described
87     in Title 78B, Chapter 18a, Uniform Unsworn Declarations Act stating facts sufficient to show
88     bias, prejudice or conflict of interest. The motion must also be accompanied by a request to
89     submit for decision.
90          [(b)(2)] (b) (2) (B) The motion must be filed after commencement of the action, but
91     not later than 21 days after the last of the following:
92          [(b)(2)(A)] (b) (2) (B) (i) assignment of the action or hearing to the judge;
93          [(b)(2)(B)] (b) (2) (B) (ii) appearance of the party or the party's attorney; or
94          [(b)(2)(C)] (b) (2) (B) (iii) the date on which the moving party knew or should have
95     known of the grounds upon which the motion is based. If the last event occurs fewer than 21
96     days before a hearing, the motion must be filed as soon as practicable.
97          [(b)(3)] (b) (2) (C) Signing the motion or affidavit or declaration constitutes a
98     certificate under Rule 11 and subjects the party or attorney to the procedures and sanctions of
99     Rule 11.
100          [(b)(4)] (b) (2) (D) No party may file more than one motion to disqualify in an action,
101     unless the second or subsequent motion is based on grounds that the party did not know of and
102     could not have known of at the time of the earlier motion.
103          [(b)(5)] (b) (2) (E) If timeliness of the motion is determined under paragraph
104     [(b)(2)(C)] (b) (2) (B) (iii) or paragraph [(b)(4)] (b) (2) (D), the affidavit or declaration
105     supporting the motion must state when and how the party came to know of the reason for
106     disqualification.
107          [(c)] (b) (3) Reviewing judge.
108          [(c)(1)] (b) (3) (A) The judge who is the subject of the motion under paragraph (b)
109     must, without further hearing or a response from another party, enter an order granting the
110     motion or certifying the motion and affidavit or declaration to a reviewing judge. The judge
111     must take no further action in the case until the motion is decided. If the judge grants the
112     motion, the order will direct the presiding judge of the court to assign another judge to the
113     action or hearing. Assignment in justice court cases will be in accordance with Utah Code of
114     Judicial Administration Rule 9-109. The presiding judge of the court, any judge of the district,
115     or any judge of a court of like jurisdiction may serve as the reviewing judge.
116          [(c)(2)] (b) (3) (B) If the reviewing judge finds that the motion and affidavit or
117     declaration are timely filed, filed in good faith and legally sufficient, the reviewing judge shall
118     assign another judge to the action or hearing or request the presiding judge to do so.
119     Assignment in justice court cases will be in accordance with Utah Code of Judicial
120     Administration Rule 9-109.
121          [(c)(3)] (b) (3) (C) In determining issues of fact or of law, the reviewing judge may
122     consider any part of the record of the action and may request of the judge who is the subject of
123     the motion an affidavit or declaration responding to questions posed by the reviewing judge.
124          [(c)(4)] (b) (3) (D) The reviewing judge may deny a motion not filed in a timely
125     manner.