I propose that Utah Rules of Civil Procedure, Rule 101, be amended to eliminate the mandatory hearing requirement for all motions before domestic relations commissioners.
This rule seems to serve no necessary purpose and ends up penalizing attorneys (and their clients) who practice before commissioners because every bloody motion, no matter how insignificant the issue may be, must be subject to a hearing, whereas in district courts where there are no commissioners, motions can be submitted for decision without a hearing (and frequently are).
Moreover, even an uncontested motion, if before a commissioner, must still receive a hearing, and that makes no sense at all. Technically, a joint, stipulated motion filed by both parties to an action must receive a hearing according to the language of the current Rule 101. Even when counsel on both sides have attempted to stipulate to submitting a motion on the pleadings without a hearing (and yes, I’ve had that happen to me), they are compelled to schedule and hold a hearing.
How is it that all motions before commissioners (where 99% of the time everything proceeds by proffer, so it’s not as though the hearing serves a vital role as an evidence gathering tool) must receive a hearing, but motions before a judge need not? This mandatory hearing provision wastes time and money and does not apply to all district courts, so it ends up penalizing litigants in commissioner-served districts.
I would wager that no one, not the attorneys, not their clients, not the commissioners, and not the judges favor this mandatory hearing provision. But even if there are attorneys out there who prefer to have every motion subject to a hearing, Rule 101 could simply adopt the provisions of Rule 7 and allow any moving party to request a hearing on his motion, and thus the rule would serve everyone better.
I have asked judges and commissioners alike to explain the rationale behind the mandatory hearing provision of Rule 101, and I either get "that's the way it is" or "the Supreme Court wants it that way" response. It appears that nobody knows the policy (if there is one) behind the mandatory hearing before commissioners rule. I, at least, have been unable to find anyone who can tell me the reason why.
I am at a loss to explain what fundamental principle of justice or equity necessitates mandatory hearings for motions before commissioners. Accordingly, since the rule apparenly serves no crucial purpose and in fact often adds an additional, superfluous hoop through which one must jump, I propose that the timing provisions of Rule 7 for motion practice apply in motions before commissioners, and that if a motion before a commissioner is uncontested or stipulated, that no hearing be required, and that the motion can be decided on a notice to submit for decision.
Do you disagree? Do you agree? If we get a large enough consensus on this issue cogently discussed on this blog, maybe the the Supreme Court and Judicial Council will see their way clear to amending Rule 101 to function more efficiently and effectively. I welcome your comments.