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[Utah Code Table of Contents]
[TITLE 78. Table of Contents]
78-7-1 Disqualification for interest or relation to parties.
(1) Except by consent of all parties, no justice, judge, or justice court judge may sit or act in any action or proceeding:
(a) to which he is a party, or in which he is interested;
(b) when he is related to either party by consanguinity or affinity within the third degree, computed according to the rules of the common law; or
(c) when he has been attorney or counsel for either party in the action or proceeding.
(2) The provisions of this section do not apply to the
arrangement of the calendar or the regulation of the order
of business, nor to the power of transferring the action
or proceeding to some other court.
1990
78-7-2 Justices and judges - Limitations during terms.
No justice or judge of any court of record may, during his term of office:
(1) practice law or have a partner engaged in the practice of law;
(2) hold office in or make any contribution to any political party or organization engaged in political activity; or
(3) use, in his efforts to obtain or retain judicial office,
any political party designation, reference, or description.
1986
78-7-3 Sittings of courts - To be public.
The sittings of every court of justice are public, except
as provided in Section
78-7-4
.
1995
78-7-4 Right to exclude in certain cases.
In an action of divorce, criminal conversation, seduction,
abortion, rape, or assault with intent to commit rape, the
court may, in its discretion, exclude all persons who are
not directly interested therein, except jurors, witnesses
and officers of the court; and in any cause the court may,
in its discretion, during the examination of a witness exclude
any and all other witnesses in the cause.
1953
78-7-5 Powers of every court.
Every court has authority to:
(1) preserve and enforce order in its immediate presence;
(2) enforce order in the proceedings before it, or before a person authorized to conduct a judicial investigation under its authority;
(3) provide for the orderly conduct of proceedings before it or its officers;
(4) compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in a pending action or proceeding;
(5) control in furtherance of justice the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it in every matter;
(6) compel the attendance of persons to testify in a pending action or proceeding, as provided by law;
(7) administer oaths in a pending action or proceeding, and in all other cases where necessary in the exercise of its authority and duties;
(8) amend and control its process and orders to conform to law and justice;
(9) devise and make new process and forms of proceedings, consistent with law, necessary to carry into effect its authority and jurisdiction; and
(10) enforce rules of the Supreme Court and Judicial Council.
1988
78-7-6 Rules - Right to make - Limitation - Security.
(1) Every court of record may make rules, not inconsistent with law, for its own government and the government of its officers; but such rules must neither impose any tax or charge upon any legal proceeding nor give any allowance to any officer for service.
(2) (a) The judicial council may provide, through the rules of judicial administration, for security in or about a courthouse or courtroom, or establish a secure area as prescribed in Section 76-8-311.1 .
(b) (i) If the council establishes a secure area under Subsection (2)(a), it shall provide a secure firearms storage area on site so that persons with lawfully carried firearms may store them while they are in the secure area.
(ii) The entity operating the facility with the secure area shall be responsible for the firearms while they are stored in the storage area referred to in Subsection (2)(b)(i).
(iii) The entity may not charge a fee to individuals for storage of their firearms under Subsection (2)(b)(i).
(3) (a) Unless authorized by the rules of judicial administration, any person who knowingly or intentionally possesses a firearm, ammunition, or dangerous weapon within a secure area established by the judicial council under this section is guilty of a third degree felony.
(b) Any person is guilty of violating Section
76-10-306
who transports, possesses, distributes, or
sells an explosive, chemical, or incendiary device, as defined
by Section
76-10-306
, within a secure area, established by the Judicial
Council under this section.
2002
78-7-7 Court days.
Courts of justice are open and judicial business may be
transacted on any day, except as otherwise provided.
1953
78-7-8 Days on which court closed - Exceptions.
Judicial business on Sunday, on any day on which general election is held, or on any legal holiday, is limited to the following purposes:
(1) to give, upon their request, instructions to a jury when deliberating on their verdict;
(2) to receive a verdict or discharge a jury;
(3) for the exercise of the powers of a magistrate in a criminal action, or in a proceeding of a criminal nature; and
(4) judicial business not involving a trial or hearing
unless the judge finds it necessary for the fair administration
of justice.
1991
78-7-9 Appointment of attorney guardian ad litem in child abuse and neglect proceedings.
(1) If child abuse, child sexual abuse, or neglect is alleged in any proceeding in any state court, the court may upon its own motion or shall upon the motion of any party to the proceeding appoint an attorney guardian ad litem to represent the best interest of the child, in accordance with Sections 78-3a-911 and 78-3a-912 .
(2) The court may appoint an attorney guardian ad litem, when it considers it necessary and appropriate, to represent the best interest of the child in all related proceedings conducted in any state court involving the alleged abuse, child sexual abuse, or neglect.
(3) The attorney guardian ad litem shall be appointed in accordance with and meet the requirements of Sections 78-3a-911 and 78-3a-912 .
(4) If an attorney guardian ad litem has been appointed for the child by any court in the state in any prior proceeding or related matter, the court may continue that appointment or may reappoint that attorney guardian ad litem, if still available, to act on behalf of the child.
(5) The court is responsible for all costs resulting from the appointment of an attorney guardian ad litem and shall use funds appropriated by the Legislature for the guardian ad litem program to cover those costs.
(6) (a) If the court appoints the Office of the Guardian Ad Litem in a civil case pursuant to this section, the court may assess all or part of those attorney's fees, court costs, paralegal, staff, and volunteer expenses against the minor's parent, parents, or legal guardian in an amount that the court determines to be just and appropriate.
(b) The court may not assess those fees or costs against a legal guardian, when that guardian is the state, or against a parent, parents, or legal guardian who is found to be impecunious. If a person claims to be impecunious, the court shall require of that person an affidavit of impecuniosity as provided in Section 78-7-36 and the court shall follow the procedures and make the determinations as provided in Section 78-7-36 .
(c) If the court appoints the Office of the Guardian Ad Litem in a criminal case pursuant to this section and if the defendant is convicted of a crime which includes child abuse or neglect, the court shall include as part of the defendant's sentence all or part of the attorney's fees, court costs, and paralegal, staff, and volunteer expenses of the Office of the Guardian Ad Litem.
(7) An attorney guardian ad litem appointed in accordance
with the requirements of this section and Sections
78-3a-911
and
78-3a-912
is, when serving in the scope of duties of
an attorney guardian ad litem, considered an employee of
this state for purposes of indemnification under the Governmental
Immunity Act.
2002
78-7-9.5 Judge of court of record - Service in other division or court.
A judge of a court of record may serve temporarily as
a judge in another geographic division or in another court
of record, in accordance with the Utah Constitution and the
rules of the Judicial Council.
1988
78-7-12 Change of place of trial because of calamity.
The judge or judges authorized to hold or preside at a
court appointed to be held in a county, city or town may,
by an order filed with the clerk and published as he or they
may prescribe, direct that the court may be held or continued
at any other place in the city, town or county than that
appointed, when war, insurrection, pestilence or other public
calamity, or danger thereof, or the destruction of or danger
to the building appointed for holding courts, may render
it necessary, and may in the same manner revoke the order,
and in his or their discretion appoint another place in the
same city, town or county for holding court.
1953
78-7-13 Sheriff to supply court rooms when the county legislative body neglects.
If suitable rooms for holding the district court and for
chambers of the judge are not provided in the place appointed
for holding said court in any county, together with attendants,
furniture, lights, and stationery sufficient for the transaction
of business, the court or the judge thereof may direct the
sheriff to provide such rooms, attendants, furniture, fuel,
lights and stationery; and the expenses incurred, certified
by the judge to be correct, are a charge against the county
and must be paid out of the general fund thereof.
1993
78-7-14 Judicial Council and courts have seals.
The Judicial Council shall have a seal and shall approve
a seal for all courts of justice.
1988
78-7-15 When seal is affixed.
The seal of the court need not be affixed to any document of the court, except to:
(1) a writ;
(2) a certificate of the probate of a will, or of appointment of an executor, administrator, or guardian; or
(3) the authentication of:
(a) a copy of a record or document on file with the court; or
(b) the signature of an officer of the court.
1988
78-7-16 Powers of judge contradistinguished from court.
A judge may exercise out of court all the powers expressly
conferred upon a judge as contradistinguished from the court.
1953
78-7-17 Powers of every judicial officer.
Every judicial officer has power:
(1) to preserve and enforce order in his immediate presence, and in proceedings before him, when he is engaged in the performance of official duty;
(2) to compel obedience to his lawful orders as provided by law;
(3) to compel the attendance of persons to testify in a proceeding before him in the cases and manner provided by law;
(4) to administer oaths to persons in a proceeding pending
before him, and in all other cases where it may be necessary
in the exercise of his powers and duties.
1953
78-7-17.5 Authority of magistrate.
(1) Except as otherwise provided by law, a magistrate as defined in Section 77-1-3 shall have the authority to:
(a) commit a person to incarceration prior to trial;
(b) set or deny bail under Section 77-20-1 and release upon the payment of bail and satisfaction of any other conditions of release;
(c) issue to any place in the state summonses and warrants of search and arrest and authorize administrative traffic checkpoints under Section 77-23-104 ;
(d) conduct an initial appearance in a felony;
(e) conduct arraignments;
(f) conduct a preliminary examination to determine probable cause;
(g) appoint attorneys and order recoupment of attorney fees;
(h) order the preparation of presentence investigations and reports;
(i) issue temporary orders as provided by rule of the Judicial Council; and
(j) perform any other act or function authorized by statute.
(2) A judge of the justice court may exercise the authority of a magistrate specified in Subsection (1) with the following limitations:
(a) a judge of the justice court may conduct an initial appearance, preliminary examination, or arraignment in a felony case as provided by rule of the Judicial Council;
(b) a judge of the justice court may not set bail in a capital felony nor deny bail in any case; and
(c) a judge of the justice court may authorize administrative
traffic checkpoints under Section
77-23-104
and issue search warrants only within the judicial
district.
2004
78-7-18 Power to punish for contempt.
For the effectual exercise of the powers conferred by
Section
78-7-17
a judicial officer may punish for contempt
in the cases provided by law.
1995
78-7-19 Repeated application for orders forbidden.
(1) If an application for an order, made to a judge of a court in which the action or proceeding is pending, is refused in whole or in part or is granted conditionally, a subsequent application for the same order may not be made to any other judge, except of a higher court.
(2) This section does not apply to motions refused for any informality in the papers or proceedings necessary to obtain the order, or to motions refused with liberty to renew them.
(3) A notice of appeal for a trial de novo is not a subsequent
application for the same order.
1996
78-7-20 Disobedience, contempt.
A violation of Section
78-7-19
may be punished as a contempt, and an order
made contrary thereto may be revoked by the judge who made
it, or vacated by a judge of the court in which the action
or proceeding is pending.
1995
78-7-21 Proceedings unaffected by vacancy in office of judge.
No proceeding in any court of justice, in an action or
special proceeding pending therein, is affected by a vacancy
in the office of all or any of the judges, or by the failure
of a term thereof.
1953
78-7-22 English language for proceedings.
Judicial proceedings shall be conducted in the English
language.
1988
78-7-23 Abbreviations and numerals may be used.
Such abbreviations as are in common use may be used, and
numbers may be expressed by figures or numerals in the customary
manner.
1953
78-7-24 Courts of justice - Authority.
(1) All courts of justice have the authority necessary to exercise their jurisdiction.
(2) If a procedure for an action is not established, a
process may be adopted that conforms with the apparent intent
of the statute or rule of procedure.
1988
78-7-25 Decisions to be rendered within two months - Procedures for decisions not rendered.
(1) A judge of a trial court shall decide all matters submitted for final determination within two months of submission, unless circumstances causing the delay are beyond the judge's personal control.
(2) The Judicial Council shall establish reporting procedures
for all matters not decided within two months of final submission.
1998
78-7-32 Domestic relations cases - Party designation.
Parties in domestic relations cases, including divorce,
annulment, property division, child custody, support, parent-time,
adoption, and paternity, shall be designated as petitioner
and respondent.
2001
78-7-33 Collection of accounts receivable.
(1) As used in this section:
(a) "Accounts receivable" means any amount due the state from an entity for which payment has not been received by the state agency that is servicing the debt.
(b) "Accounts receivable" includes unpaid fees, licenses, taxes, loans, overpayments, fines, forfeitures, surcharges, costs, contracts, interest, penalties, restitution to victims, third party claims, sale of goods, sale of services, claims, and damages.
(2) If the Department of Corrections does not have responsibility under Subsection 77-18-1 (9) for collecting an account receivable and if the Office of State Debt Collection does not have responsibility under Subsection 63A-8-201 (6), the district court shall collect the account receivable.
(3) (a) In the juvenile court, monies collected by the court from past-due accounts receivable may be used to offset system, administrative, legal, and other costs of collection.
(b) The juvenile court shall allocate monies collected above the cost of collection on a pro rata basis to the various revenue types that generated the accounts receivable.
(4) The interest charge established by the Office of State
Debt Collection under Subsection
63A-8-201
(4)(g)(iii) may not be assessed on an account
receivable subject to the postjudgment interest rate established
by Section
15-1-4
.
2002
78-7-34 Electronic writing.
(1) Except as restricted by the Constitution of the United States or of this state, any writing required or permitted by this code to be filed with or prepared by a court may be filed or prepared in an electronic medium and by electronic transmission subject to the ability of the recipient to accept and process the electronic writing.
(2) Any writing required to be signed that is filed with
or prepared by a court in an electronic medium or by electronic
transmission shall be signed by electronic signature in accordance
with Title 46, Chapter 4, Uniform Electronic Transactions
Act.
2006
78-7-35 Civil fees of the courts of record - Courts complex design.
(1) (a) The fee for filing any civil complaint or petition invoking the jurisdiction of a court of record not governed by another subsection is $155.
(b) The fee for filing a complaint or petition is:
(i) $50 if the claim for damages or amount in interpleader exclusive of court costs, interest, and attorney fees is $2,000 or less;
(ii) $95 if the claim for damages or amount in interpleader exclusive of court costs, interest, and attorney fees is greater than $2,000 and less than $10,000;
(iii) $155 if the claim for damages or amount in interpleader is $10,000 or more; and
(iv) $155 if the petition is filed under Title 30, Chapter 3, Divorce, or Title 30, Chapter 4, Separate Maintenance.
(c) The fee for filing a small claims affidavit is:
(i) $45 if the claim for damages or amount in interpleader exclusive of court costs, interest, and attorney fees is $2,000 or less; and
(ii) $70 if the claim for damages or amount in interpleader exclusive of court costs, interest, and attorney fees is greater than $2,000.
(d) The fee for filing a counter claim, cross claim, complaint in intervention, third party complaint, or other claim for relief against an existing or joined party other than the original complaint or petition is:
(i) $45 if the claim for relief exclusive of court costs, interest, and attorney fees is $2,000 or less;
(ii) $75 if the claim for relief exclusive of court costs, interest, and attorney fees is greater than $2,000 and less than $10,000;
(iii) $105 if the original petition is filed under Subsection (1)(a), the claim for relief is $10,000 or more, or the party seeks relief other than monetary damages; and
(iv) $85 if the original petition is filed under Title 30, Chapter 3, Divorce, or Title 30, Chapter 4, Separate Maintenance.
(e) The fee for filing a small claims counter affidavit is:
(i) $35 if the claim for relief exclusive of court costs, interest, and attorney fees is $2,000 or less; and
(ii) $50 if the claim for relief exclusive of court costs, interest, and attorney fees is greater than $2,000.
(f) The fee for depositing funds under Section 57-1-29 when not associated with an action already before the court is determined under Subsection (1)(b) based on the amount deposited.
(g) The fee for filing a petition is:
(i) $75 for trial de novo of an adjudication of the justice court or of the small claims department; and
(ii) $55 for an appeal of a municipal administrative determination in accordance with Section 10-3-703.7 .
(h) The fee for filing a notice of appeal, petition for appeal of an interlocutory order, or petition for writ of certiorari is $205.
(i) (i) Except for a petition filed under Subsection 77-18-10 (2), the fee for filing a petition for expungement is $65.
(ii) There is no fee for a petition filed under Subsection 77-18-10 (2).
(j) (i) Fifteen dollars of the fees established by Subsections (1)(a) through (i) shall be allocated to and between the Judges' Contributory Retirement Trust Fund and the Judges' Noncontributory Retirement Trust Fund, as provided in Title 49, Chapter 17, Judges' Contributory Retirement Act, and Title 49, Chapter 18, Judges' Noncontributory Retirement Act.
(ii) Two dollars of the fees established by Subsections (1)(a) through (i) shall be allocated by the state treasurer to be deposited in the restricted account, Children's Legal Defense Account, as provided in Section 63-63a-8 .
(iii) One dollar of the fees established under Subsections (1)(a) through (e), (1)(g), and (1)(r) shall be allocated to and deposited with the Dispute Resolution Fund as provided in Section 78-31b-9 .
(iv) Fifteen dollars of the fees established by Subsections (1)(a), (1)(b)(iii) and (iv), (1)(d)(iii) and (iv), (1)(g)(ii), (1)(h), and (1)(i) shall be allocated by the state treasurer to be deposited in the restricted account, Court Security Account, as provided in Section 63-63c-102 .
(v) Five dollars of the fees established by Subsections (1)(b)(i) and (ii), (1)(d)(ii) and (1)(g)(i) shall be allocated by the state treasurer to be deposited in the restricted account, Court Security Account, as provided in Section 63-63c-102 .
(k) The fee for filing a judgment, order, or decree of a court of another state or of the United States is $25.
(l) The fee for filing probate or child custody documents from another state is $25.
(m) (i) The fee for filing an abstract or transcript of judgment, order, or decree of the Utah State Tax Commission is $30.
(ii) The fee for filing an abstract or transcript of judgment of a court of law of this state or a judgment, order, or decree of an administrative agency, commission, board, council, or hearing officer of this state or of its political subdivisions other than the Utah State Tax Commission, is $40.
(n) The fee for filing a judgment by confession without action under Section 78-22-3 is $25.
(o) The fee for filing an award of arbitration for confirmation, modification, or vacation under Title 78, Chapter 31a, Utah Uniform Arbitration Act, that is not part of an action before the court is $25.
(p) The fee for filing a petition or counter-petition to modify a decree of divorce is $40.
(q) The fee for filing any accounting required by law is:
(i) $10 for an estate valued at $50,000 or less;
(ii) $20 for an estate valued at $75,000 or less but more than $50,000;
(iii) $40 for an estate valued at $112,000 or less but more than $75,000;
(iv) $80 for an estate valued at $168,000 or less but more than $112,000; and
(v) $150 for an estate valued at more than $168,000.
(r) The fee for filing a demand for a civil jury is $75.
(s) The fee for filing a notice of deposition in this state concerning an action pending in another state under Utah Rule of Civil Procedure 26 is $25.
(t) The fee for filing documents that require judicial approval but are not part of an action before the court is $25.
(u) The fee for a petition to open a sealed record is $25.
(v) The fee for a writ of replevin, attachment, execution, or garnishment is $35 in addition to any fee for a complaint or petition.
(w) (i) The fee for a petition for authorization for a minor to marry required by Section 30-1-9 is $5.
(ii) The fee for a petition for emancipation of a minor provided in Title 78, Chapter 3a, Part 10, Emancipation, is $50.
(x) The fee for a certificate issued under Section 26-2-25 is $2.
(y) The fee for a certified copy of a document is $4 per document plus 50 cents per page.
(z) The fee for an exemplified copy of a document is $6 per document plus 50 cents per page.
(aa) The Judicial Council shall by rule establish a schedule of fees for copies of documents and forms and for the search and retrieval of records under Title 63, Chapter 2, Government Records Access and Management Act. Fees under this Subsection (1)(aa) shall be credited to the court as a reimbursement of expenditures.
(bb) There is no fee for services or the filing of documents not listed in this section or otherwise provided by law.
(cc) Except as provided in this section, all fees collected under this section are paid to the General Fund. Except as provided in this section, all fees shall be paid at the time the clerk accepts the pleading for filing or performs the requested service.
(dd) The filing fees under this section may not be charged to the state, its agencies, or political subdivisions filing or defending any action. In judgments awarded in favor of the state, its agencies, or political subdivisions, except the Office of Recovery Services, the court shall order the filing fees and collection costs to be paid by the judgment debtor. The sums collected under this Subsection (1)(dd) shall be applied to the fees after credit to the judgment, order, fine, tax, lien, or other penalty and costs permitted by law.
(2) (a) (i) From March 17, 1994 until June 30, 1998, the administrator of the courts shall transfer all revenues representing the difference between the fees in effect after May 2, 1994, and the fees in effect before February 1, 1994, as dedicated credits to the Division of Facilities Construction and Management Capital Projects Fund.
(ii) (A) Except as provided in Subsection (2)(a)(ii)(B), the Division of Facilities Construction and Management shall use up to $3,750,000 of the revenue deposited in the Capital Projects Fund under this Subsection (2)(a) to design and take other actions necessary to initiate the development of a courts complex in Salt Lake City.
(B) If the Legislature approves funding for construction of a courts complex in Salt Lake City in the 1995 Annual General Session, the Division of Facilities Construction and Management shall use the revenue deposited in the Capital Projects Fund under this Subsection (2)(a)(ii) to construct a courts complex in Salt Lake City.
(C) After the courts complex is completed and all bills connected with its construction have been paid, the Division of Facilities Construction and Management shall use any monies remaining in the Capital Projects Fund under this Subsection (2)(a)(ii) to fund the Vernal District Court building.
(iii) The Division of Facilities Construction and Management may enter into agreements and make expenditures related to this project before the receipt of revenues provided for under this Subsection (2)(a)(iii).
(iv) The Division of Facilities Construction and Management shall:
(A) make those expenditures from unexpended and unencumbered building funds already appropriated to the Capital Projects Fund; and
(B) reimburse the Capital Projects Fund upon receipt of the revenues provided for under this Subsection (2).
(b) After June 30, 1998, the administrator of the courts shall ensure that all revenues representing the difference between the fees in effect after May 2, 1994, and the fees in effect before February 1, 1994, are transferred to the Division of Finance for deposit in the restricted account.
(c) The Division of Finance shall deposit all revenues received from the court administrator into the restricted account created by this section.
(d) (i) From May 1, 1995 until June 30, 1998, the administrator of the courts shall transfer $7 of the amount of a fine or bail forfeiture paid for a violation of Title 41, Motor Vehicles, in a court of record to the Division of Facilities Construction and Management Capital Projects Fund. The division of money pursuant to Section 78-3-14.5 shall be calculated on the balance of the fine or bail forfeiture paid.
(ii) After June 30, 1998, the administrator of the courts or a municipality shall transfer $7 of the amount of a fine or bail forfeiture paid for a violation of Title 41, Motor Vehicles, in a court of record to the Division of Finance for deposit in the restricted account created by this section. The division of money pursuant to Section 78-3-14.5 shall be calculated on the balance of the fine or bail forfeiture paid.
(3) (a) There is created within the General Fund a restricted account known as the State Courts Complex Account.
(b) The Legislature may appropriate monies from the restricted account to the administrator of the courts for the following purposes only:
(i) to repay costs associated with the construction of the court complex that were funded from sources other than revenues provided for under this Subsection (3)(b)(i); and
(ii) to cover operations and maintenance costs on the
court complex.
2006
78-7-35.1 Fees for certificate of admission.
The appellate courts shall receive a $50 fee for a certificate
of admission as attorney and counselor, $30 of which shall
be retained by the state treasurer for the benefit of the
State Law Library, to be expended by the Judicial Council.
2001
78-7-36 Impecunious litigants - Affidavit.
(1) For purposes of this section:
(a) "Convicted" means a conviction by entry of a plea of guilty or nolo contendere, guilty and mentally ill, no contest, and conviction of any crime or offense.
(b) "Prisoner" means a person who has been convicted of a crime and is incarcerated for that crime or is being held in custody for trial or sentencing.
(2) As provided in this chapter, any person may institute, prosecute, defend, and appeal any cause in any court in this state without prepayment of fees and costs or security, by taking and subscribing, before any officer authorized to administer an oath, an affidavit of impecuniosity demonstrating financial inability to pay fees and costs or give security.
(3) The affidavit shall contain complete information on the party's:
(a) identity and residence;
(b) amount of income, including government financial support, alimony, child support;
(c) assets owned, including real and personal property;
(d) business interests;
(e) accounts receivable;
(f) securities, checking and savings account balances;
(g) debts; and
(h) monthly expenses.
(4) If the party is a prisoner, he shall also disclose the amount of money held in his prisoner trust account at the time the affidavit is executed as provided in Section 78-7-38 .
(5) In addition to the financial disclosures, the affidavit shall state the following:
I, A B, do solemnly swear or affirm that due to my poverty
I am unable to bear the expenses of the action or legal proceedings
which I am about to commence or the appeal which I am about
to take, and that I believe I am entitled to the relief sought
by the action, legal proceedings, or appeal.
2001
78-7-37 Effect of filing affidavit - Nonprisoner.
(1) Upon the filing of the oath or affirmation with any Utah court by a nonprisoner, the court shall review the affidavit and make an independent determination based on the information provided whether court costs and fees should be waived entirely or in part. Notwithstanding the party's statement of inability to pay court costs, the court shall require a partial or full filing fee where the financial information provided demonstrates an ability to pay a fee.
(2) In instances where fees or costs are completely waived, the court shall immediately file any complaint or papers on appeal and do what is necessary or proper as promptly as if the litigant had fully paid all the regular fees. The constable or sheriff shall immediately serve any summonses, writs, process and subpoenas, and papers necessary or proper in the prosecution or defense of the cause, for the impecunious person as if all the necessary fees and costs had been fully paid.
(3) However, in cases where an impecunious affidavit is
filed, the judge shall question the person who filed the
affidavit at the time of hearing the cause as to his ability
to pay. If the judge opines that the person is reasonably
able to pay the costs, the judge shall direct the judgment
or decree not be entered in favor of that person until the
costs are paid. The order may be cancelled later upon petition
if the facts warrant cancellation.
2001
78-7-38 Effect of filing affidavit - Procedure for review and collection.
(1) As used in this section, "prisoner" means a person who has been convicted of a crime and is incarcerated for that crime or is being held in custody for trial or sentencing.
(2) (a) Upon receipt of the oath or affirmation filed with any Utah court by a prisoner, the court shall immediately request the institution or facility where the prisoner is incarcerated to provide an account statement detailing all financial activities in the prisoner's trust account for the previous six months or since the time of incarceration, whichever is shorter.
(b) The incarcerating facility shall:
(i) prepare and produce to the court the prisoner's six-month trust account statement, current trust account balance, and aggregate disposable income; and
(ii) calculate aggregate disposable income by totaling all deposits made in the prisoner's trust account during the six-month period and subtracting all funds automatically deducted or otherwise garnished from the account during the same period.
(3) The court shall:
(a) review both the affidavit of impecuniosity and the financial account statement; and
(b) based upon the review, independently determine whether or not the prisoner is financially capable of paying all the regular fees and costs associated with filing the action.
(4) When the court concludes that the prisoner is unable to pay full fees and costs, the court shall assess an initial partial filing fee equal to 50% of the prisoner's current trust account balance or 10% of the prisoner's six-month aggregate disposable income, whichever is greater.
(5) (a) After payment of the initial partial filing fee, the court shall require the prisoner to make monthly payments of 20% of the preceding month's aggregate disposable income until the regular filing fee associated with the civil action is paid in full.
(b) The agency having custody of the prisoner shall:
(i) garnish the prisoner's account each month; and
(ii) once the collected fees exceed $10, forward payments to the clerk of the court until the filing fees are paid.
(c) Nothing in this section may be construed to prevent the agency having custody of the prisoner from withdrawing funds from the prisoner's account to pay court-ordered restitution.
(6) Collection of the filing fees continues despite dismissal of the action.
(7) The filing fee collected may not exceed the amount
of fees permitted by statute for the commencement of a civil
action or an appeal of a civil action.
2001
78-7-39 Notice of filing fee - Consequence of nonpayment.
(1) When an affidavit of impecuniosity has been filed and the court assesses an initial filing fee, the court shall immediately notify the litigant in writing of:
(a) the initial filing fee required as a prerequisite to proceeding with the action;
(b) the procedure available to challenge the initial filing fee assessment as provided in Section 78-7-40 ; and
(c) the inmate's ongoing obligation to make monthly payments until the entire filing fee is paid.
(2) The court may not authorize service of process or
otherwise proceed with the action, except as provided in
Section
78-7-40
, until the initial filing fee has been completely
paid to the clerk of the court.
2001
78-7-40 Filing fee challenge - Court powers.
(1) Within ten days of receiving court notice requiring an initial filing fee under Section 78-7-39 , the litigant may contest the fee assessment by filing a memorandum and supporting documentation with the court demonstrating inability to pay the fee.
(2) The court shall review the memorandum and supporting documents challenging the fee assessment for facial validity.
(3) The court may reduce the initial filing fee, authorize service of process, or otherwise proceed with the action without prepayment of costs and fees if the memorandum shows the litigant:
(a) has lost his source of income;
(b) has unaccounted nondiscretionary expenses limiting his ability to pay;
(c) will suffer immediate irreparable harm if the action is unnecessarily delayed; or
(d) will otherwise lose the cause of action by unnecessary delays associated with securing funds necessary to satisfy the assessed filing fee.
(4) Nothing in this section shall be construed to relieve
the litigant from the ongoing obligation of monthly payments
until the filing fee is paid in full.
2001
78-7-41 Failure to serve papers - Penalty.
Any justice court judge, clerk, or officer refusing to
file or serve the papers is guilty of a class B misdemeanor.
2001
78-7-42 Liability for fees if successful in litigation.
Nothing herein contained shall prevent a justice court
judge, clerk, constable, or sheriff from collecting his regular
fees for all services so rendered for such poor person, in
the event the poor person is successful in his litigation,
and all fees and costs shall be regularly taxed and included
in any judgment recovered by the poor person, and the fees
and costs shall be paid to a justice court judge, clerk,
constable, or sheriff. If the poor person fails in his action
or appeal, then the costs of the action or appeal shall be
adjudged against him.
2001
78-7-43 False affidavit - Penalty.
If it is made to appear to the court by affidavit that
the affidavit or affirmation is untrue, or that the action
or appeal is frivolous or malicious or without merit, the
court may make a rule on the affiant, fixing a day not less
than five days from the date of service of such notice, requiring
such affiant to appear at a fixed time and place to show
cause, if any he has, why he should not give bond and security
for the costs of his action or appeal, or pay the legal fees
therefor, and, on failure so to do, why his action or appeal
should not be dismissed. Should the court be of the opinion
that the affidavit or affirmation is untrue, or that said
action or appeal is frivolous, malicious or without merit,
the court in which such action or appeal is pending may dismiss
it.
2001
78-7-44 Fees for writ of garnishment - Single or continuing.
(1) Any creditor who serves or causes to be served a writ of garnishment upon the garnishee shall pay to the garnishee:
(a) $10 for a single garnishment; and
(b) $25 for a continuing garnishment.
(2) The creditor shall pay the fee directly to the garnishee.
2001
78-7-45 Private attorney guardian ad litem - Appointment - Costs and fees - Duties - Conflicts of interest - Pro bono obligation - Indemnification - Minimum qualifications.
(1) (a) The court may appoint a private attorney as guardian ad litem to represent the best interests of the minor in any district court action in which the custody of or visitation with a minor is at issue. The attorney guardian ad litem shall be certified by the Director of the Office of the Guardian Ad Litem as having met the minimum qualifications for appointment, but shall not be employed by or under contract with the Office of the Guardian Ad Litem.
(b) If an attorney guardian ad litem has been appointed for the minor in any prior or concurrent action and that attorney guardian ad litem is available, the court shall appoint that attorney guardian ad litem, unless good cause is shown why another attorney guardian ad litem should be appointed.
(c) If, after appointment of the attorney guardian ad litem, an allegation of abuse, neglect, or dependency of the minor is made the court shall:
(i) determine whether it is in the best interests of the minor to continue the appointment; or
(ii) order the withdrawal of the private attorney guardian ad litem and appoint the Office of the Guardian Ad Litem.
(2) (a) The court shall assess all or part of the attorney guardian ad litem fees, courts costs, and paralegal, staff, and volunteer expenses against the parties in a proportion the court determines to be just.
(b) If the court finds a party to be impecunious, under the provisions of Section 78-7-36 , the court may direct the impecunious party's share of the assessment to be covered by the attorney guardian ad litem pro bono obligation established in Subsection (6)(b).
(3) The attorney guardian ad litem appointed under the provisions of this section shall:
(a) represent the best interests of the minor from the date of the appointment until released by the court;
(b) conduct or supervise an independent investigation in order to obtain a clear understanding of the situation and needs of the minor;
(c) interview witnesses and review relevant records pertaining to the minor and the minor's family, including medical, psychological, and school records;
(d) if the minor is old enough to communicate and unless it would be detrimental to the minor:
(i) meet with and interview the minor;
(ii) determine the minor's goals and concerns regarding custody or visitation; and
(iii) counsel the minor regarding the nature, purpose, status, and implications of the case, of hearings, of recommendations, and proposals by parties and of court orders;
(e) conduct discovery, file pleadings and other papers, prepare and review orders, and otherwise comply with the Utah Rules of Civil Procedure as necessary to protect the best interest of the minor;
(f) unless excused by the court, prepare for and attend all mediation hearings and all court conferences and hearings, and present witnesses and exhibits as necessary to protect the best interests of the minor;
(g) identify community resources to protect the best interests of the minor and advocate for those resources; and
(h) participate in all appeals unless excused by the court.
(4) (a) The attorney guardian ad litem shall represent the best interests of a minor. If the minor's wishes differ from the attorney's determination of the minor's best interests, the attorney guardian ad litem shall communicate to the court the minor's wishes and the attorney's determination of the minor's best interests. A difference between the minor's wishes and the attorney's determination of best interests is not sufficient to create a conflict of interest.
(b) The court may appoint one attorney guardian ad litem to represent the best interests of more than one minor child of a marriage.
(5) An attorney guardian ad litem appointed under this section is immune from any civil liability that might result by reason of acts performed within the scope of duties of the attorney guardian ad litem.
(6) (a) Upon the advice of the Director of the Office of the Guardian Ad Litem, the Judicial Council shall by rule establish the minimum qualifications and requirements for appointment by the court as an attorney guardian ad litem.
(b) An attorney guardian ad litem may be required to appear pro bono in one case for every five cases in which the attorney is appointed with compensation.
(7) This section shall be effective in the Second, Third,
and Fourth Judicial Districts on July 1, 2001, and in the
remaining judicial districts of the state on July 1, 2002.
2002
78-7-46 Bases for certain decisions limited.
(1) Except as provided in Subsection (2), no court may rule on the custody, placement, including foster placement, or other disposition alternative for a minor, or the termination of parental rights, based on the fact that a parent or guardian of the minor lawfully does one or more of the following:
(a) legally possesses or uses a firearm or other weapon;
(b) espouses particular religious beliefs; or
(c) schools the minor or other minors outside the public education system or is otherwise sympathetic to schooling a minor outside the public education system.
(2) Subsection (1) does not prohibit a ruling based on
the compatibility of a minor with a particular custody, placement,
or other disposition alternative as determined by the presence
of any of the factors in Subsections (1)(a) through (1)(c).
2004
