A Utah senator who has had run-ins with judge has a bill to allow switching courts
(Leah Hogsten | The Salt Lake Tribune) Sen. Kirk Cullimore, R-Draper, right, shares a laugh with Sen. Lincoln Fillmore, R-South Jordan, Feb. 26, 2020 during the afternoon session.
The following story was written and reported by The Utah Investigative Journalism Project in partnership with The Salt Lake Tribune.
The website for the law offices of Kirk A. Cullimore proudly touts decades worth of experience in evictions and debt collections, not just arguing the law — but even making it.
“Our firm’s work in the courtroom and in the capitol building has resulted in a vast number of decisions, rulings, and legislative items that use fairness and common sense to protect and defend Utah property rights,” the website reads
Sen. Kirk Cullimore, R-Draper, this session is proposing SJR5
, that would seek to amend the rules of civil procedure to allow any lawyer to disqualify one judge per case — without any cause.
While his firm brags about its legislative advocacy, Cullimore said in an interview that his resolution has nothing to do with his firm’s eviction practice — and wasn’t a way to avoid the courtroom of 3rd District Judge Laura Scott. Last year alone, Scott challenged the firm on 60 different cases, cutting by more than half the attorney fees awarded it and also confronted it over due process issues.
Cullimore said Wednesday that the proposal came from an idea he heard about from other civil practice lawyers such as his brother in Arizona.
“There’s about 15 other states that have a mechanism similar to this,” he said.
Bill Tibbitts, a low-income advocate with the Crossroads Urban Center, is disturbed by what he sees as conflicted and self-serving legislation. He pointed out that evictions already strike at vulnerable Utahns in proceedings that move very fast, often without defendants realizing the consequences if they don’t show up in court — leading to the award of triple damages, back rent and landlord attorney fees.
“If you’re being evicted you don’t have money to pay rent, so you don’t have money to contest an eviction,” Tibbitts said. “So it is disturbing that someone who already has the deck stacked in his favor like Cullimore is sponsoring a bill to say, ‘I should be able to avoid certain judges because they’re too concerned about the rights of underrepresented people.’ ”
In 2019 Cullimore’s firm filed 2,284 eviction suits in Salt Lake County alone. More than a third of those cases were default judgments where the defendants never showed up to court and as a result were whacked with $727.50 in attorney fees. Over the year, the firm was granted more than $800,000 in attorney fees, though Cullimore said those amounts are rarely recouped completely.
However, those judgments often result in garnished wages for defendants, and a record that stays with them for seven years while they try to find new housing and avoid homelessness.
In early 2019, Judge Scott decided against automatically awarding the Cullimore firm the full $727.50 that was its standard request. In her ruling, she cited case law saying that attorney fees had to be based on work done specific to the case, whereas the Cullimore firm simply submitted the same form documents for every case brought.
“The completion of these forms did not require expertise or experience or skill as evidenced by the fact that the majority of the work was performed by legal secretaries,” Scott wrote.
She also wrote that “the court is not compelled to accept the self-serving testimony of a party requesting attorney fees even if there is no opposing testimony.”
Cullimore insisted that his legislation is unrelated to the dozens of times Scott challenged the firm. He said that if his firm did use the law he’s pushing to disqualify a judge, there would still be a chance its cases were assigned to another judge who might be adversarial.
But a review of 2019 records shows consistently that the majority of judges never challenged the firm’s filings, especially on attorney fees. Only one other judge besides Scott, 3rd District Judge Kara Pettit, consistently challenged orders submitted for attorney fees from Cullimore’s firm. Pettit, however, only would dock $120 from the default judgment awards.
Cullimore said the legislation is really more for complex civil litigation, the kind that some judges might not have as much expertise in if they worked their way through the system as criminal prosecutors.
“That’s not to say that they’re not qualified to do complex civil litigation, but sometimes it’s just not necessarily in their wheelhouse,” Cullimore said.
Cullimore also denied his firm is motivated by other rulings from Scott and a few other judges. In 2019, for example, the firm was repeatedly challenged by Scott for filing insufficient paperwork to justify the award of thousands of dollars in extra damages against evicted tenants — claims that sometimes would come months or years after the initial ruling.
That same year the firm was also challenged in nine different cases for trying to serve legal papers on defendants months after they were evicted by sending the papers to the address from where they had been evicted.
“The address the proposed [order] was mailed to Defendant is the address from which the Plaintiff successfully and efficiently evicted the Defendant from almost nine months ago,” reads one such court order from December.
George Sutton, an attorney for Jones Waldo who does pro bono eviction defense work, said this practice can really sneak up on defendants, citing one case where attorneys filed a motion for added damages almost six years after his client voluntarily moved out. He also said challenging these cases is risky for defendants — if they fight and lose, the attorney fees could balloon even further.
“The defendants are caught in a Catch-22,” Sutton said.
Cullimore said that is standard practice and it’s up to defendants to keep the court aware of their situation.
“I understand some of the judges are now taking issue with [this],” Cullimore said.
That didn’t stop the Senate Judiciary, Law Enforcement and Criminal Justice Committee from advancing SJR5 on a 4-1 vote Thursday. A substitute version approved
would allow for no-cause disqualification of judges only in larger counties with at least seven district court judges.
While Committee Chairman Todd Weiler, R-Woods Cross, voted in favor, along with Cullimore and two fellow Republican members
, he indicated he had concerns about overstepping boundaries and the potential for attorneys to abuse the power.
“Just because an attorney asks for a judge to be disqualified doesn’t necessarily mean the judge is bad, it may be because the judge is really good and the attorney wants a judge who is not as careful about following the rules and dotting every i and crossing every t,” Weiler said.
The committee did not endorse another piece of legislation Cullimore introduced, SB177
, that would allow debt collection cases to be heard in justice courts. That bill was held and recommended for study for a year.
Cullimore’s firm also handles such debt collections for landlords, but again said his bill wasn’t about his cases.
Critics see big problems with the still-advancing SJR5, now on its way to the full Senate, and the effect it would have on the judicial system.
Marcus Degen, a tenants’ rights attorney for Utah Legal Services, said it could add delays to eviction proceedings that might likely add more days of back rent to a tenant’s judgment while the court waits for judges to be swapped. He also argued that the random assignment of judges is part of a fair judicial system.
“Creating this one-strike proposal allows lawyers to make an end run around that professional necessity,” Degen said.
Eric S. Peterson is the founder and a director of the Utah Investigative Journalism Project.