Article, 0222 UTBJ, Vol. 35, No. 1. 17

Authorby Carol Funk
PositionVol. 35 1 Pg. 17


No. Vol. 35 No. 1 Pg. 17

Utah Bar Journal

February, 2022

January, 2021

by Carol Funk

Understanding the Utah Supreme Court’s Docket: A Practitioner’s Guide

As practitioners, understanding the Utah Supreme Court’s docket can be essential to providing effective advocacy. Some pathways to the Utah Supreme Court are relatively well known; others are more obscure. And each has its own likelihood of success. Set forth below is an in-depth guide to the Utah Supreme Court’s docket; its exercise of jurisdiction, both original and appellate; and the background odds when asking the Utah Supreme Court to exercise jurisdiction or to provide a particular type of relief.

This guide is compiled based on the Utah Constitution; the Utah Code; the Utah Rules of Civil Procedure; the Utah Rules of Appellate Procedure; and the experience of the author, where relevant. It also rests on a review of all matters (nearly 6,000) filed in the Utah Supreme Court and the Utah Court of Appeals between January 1, 2016 and October 13, 2021 (the review period). Given the magnitude of that undertaking, the results set forth below are intended to provide general trends and to serve as highly informative approximations of the types of matters at issue and the actions undertaken therein, as indicated on the Utah appellate courts’ docket.


The appellate process usually involves a distinct, two-tier system. An intermediate court of appeals traditionally reviews, as a matter of course, the vast majority of challenges to final judgments entered in district courts, juvenile courts, and agency proceedings. The court of appeals may also elect, with some degree of discretion, to review challenges to orders issued in not-yet-final proceedings. And the court of appeals may exercise original jurisdiction when asked to check misuse or abuse of governmental authority, or to otherwise ensure persons or entities act in accordance with their legal obligations, through issuance of a writ.

A “supreme” court, on the other hand, usually handpicks much of its docket. A supreme court traditionally determines which challenges it will review regarding intermediate appellate court rulings. It also has original appellate jurisdiction over matters committed exclusively to it, such as challenges to criminal proceedings resulting in imposition of the death penalty. And like an intermediate court of appeals, a supreme court has original jurisdiction to address misuse or abuse of governmental authority, or to otherwise ensure persons or entities act in accordance with the law, through issuance of a writ. A supreme court may also oversee admission to its bar and disciplinary proceedings instituted with respect to members thereof. State supreme courts may also determine whether to answer questions of state law certified to them by federal courts.

Utah’s appellate process mirrors a traditional system – but in a slightly quirky, roundabout sort of way.

The Utah Court of Appeals engages in the practices typical of intermediate appellate courts. The Court of Appeals thus reviews most challenges to orders entered in district courts, juvenile courts, and agency proceedings. But as explained below, many of those matters arrive in the Court of Appeals for appellate review only after first making a brief stop in the Utah Supreme Court.

The Utah Court of Appeals is statutorily assigned to exercise appellate jurisdiction only in limited types of proceedings. See Utah Code Ann. § 78A-4-103. For example, the Court of Appeals has original appellate jurisdiction over orders issued in juvenile courts; criminal proceedings not involving a first degree or capital felony; domestic relations matters such as divorce, child custody, and adoption; formal adjudicative proceedings; and certain informal adjudicative proceedings as reviewed by a district court. Id. But the Court of Appeals has not been tasked, by statute, with reviewing orders issued in many common civil actions, such as those alleging negligence, breach of contract, malpractice, or products liability. See id.

Any matter not within the Court of Appeals’ original appellate jurisdiction is, instead, assigned to the Utah Supreme Court. Id. § 78A-3-102(3)(j) (providing that the Utah Supreme Court has appellate jurisdiction over all “orders, judgments, and decrees of any court of record over which the Court of Appeals does not have original appellate jurisdiction”). This statutory division of labor suggests the Utah Supreme Court operates much like the Court of Appeals in many instances, reviewing orders or judgments issued in numerous civil, criminal, and agency proceedings. But that is not, in fact, how the process plays out.

The Utah Supreme Court rarely provides first-level appellate review, and the Court of Appeals almost always does, through an unusual “pour-over” procedure the Utah Legislature created.

Under this procedure, the Court of Appeals has been given appellate jurisdiction over the categories of cases set forth above as well as all “cases transferred to the Court of Appeals from the [Utah] Supreme Court.” Id. § 78A-4-103(2)(j).

There are only a few types of cases the Utah Supreme Court cannot transfer. The Utah Supreme Court may not, for example, transfer to the Court of Appeals matters involving capital felony convictions, election or voting contests, retention or removal of public officers, discipline of lawyers, or final orders of the Judicial Conduct Commission. Id. § 78A-3-102(4). Otherwise, however, the Utah Supreme Court can and routinely does transfer nearly every case within its original appellate jurisdiction to the Court of Appeals. See Utah R. App. P. 42(a) (“At any time before a case is set for oral argument …, the [Utah Supreme] Court may transfer to the Court of Appeals any case except those cases within the Supreme Court’s exclusive jurisdiction.”).

During the review period noted above, the Utah Supreme Court transferred over 2,000 cases originally in its appellate jurisdiction to the Utah Court of Appeals for resolution, retaining relatively few for its review in the first instance. The Utah Supreme Court thus manages its docket so that, rather than operating largely as an appellate court of first resort, it functions primarily as a traditional supreme court.


Utah’s two-tier appellate process thus operates much like a traditional system. But it nevertheless...

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