Nelson v. Jacobsen

HALL, Chief Justice

(concurring and dissenting):

I concur in the opinion of the Court insofar as it retains alienation of affections as a viable cause of action in the state of Utah, and insofar as it refuses to sustain the award of punitive damages (Parts II and III). However, I dissent from that portion of the opinion which remands the case for a new trial based on the conclusion that the defendant was denied due process of law.

Defendant claims that he was denied a fair trial because he was not afforded timely notice and was thus denied an opportunity to be heard in a meaningful way. His contention that he did not realize until two days before the trial began that he was to be prepared for trial and not merely for a “hearing,” is simply not borne out by the record. On the contrary, it is clear that his alleged lack of knowledge stems not from an absence of notice and opportunity to be heard, but from his voluntary choice not to retain a new attorney and to represent himself.

On January 7, 1981, the trial judge set aside the earlier order of dismissal of the complaint, reinstated the action and set the ease for trial on January 21,1981. Defendant personally appeared at that time, without counsel, and heard the date being set. Defendant claims that he was misled by the use of the word “hearing” rather than “trial” and therefore was not given actual notice that he must face trial on January 21. This is a specious argument. Defendant’s brief acknowledges that had defendant had an attorney representing him, the attorney would have understood that he was facing a trial and not merely a hearing. Therefore, the resolution of this question hinges not on what defendant did know, but on what he should have known.

Article I, § 11 of the Utah Constitution and U.C.A., 1953, § 78-51-25 guarantee a party to a civil action the right to represent himself. 1 However, as the main opinion points out, the general rule is that a party appearing pro se is held to the same standards of knowledge, rules-and procedures as would be a qualified attorney. 2 In fact, if a litigant, for whatever reason, sees fit to rely on himself as counsel, he must be prepared to accept the consequences of his mistakes and errors. 3

Defendant voluntarily chose to appear at the January 7 hearing without an attorney; he did not question the judge as to exactly what would happen on January 21, as was his right and his duty if he was going to represent himself; and he did not thereafter consult an attorney as to the proper steps to be taken. He merely showed up at trial on January 21 and acknowledged that he intended to represent himself.

That the defendant had made the decision to represent himself in the trial before the court and that he was prepared to proceed without a continuance are clearly reflected in the record:

THE COURT: Mr. Jacobsen?

MR. JACOBSEN: Yes, Your Honor.

THE COURT: Are you represented by an attorney, Mr. Jacobsen?

MR. JACOBSEN: No, Your Honor. I’d like to offer a brief explanation of my apology for that.... I was unable to acquire legal counsel because of financial difficulties, so I spoke to Mr. Brown, the Prosecuting Attorney of Sanpete County, and he went over everything with me and advised me that because of my financial *1221 situation, I’d better defend myself, so I’m prepared to do that.

THE COURT: You understand, of course, that it’s the Court’s obligation to hear the evidence and make a ruling based upon the evidence and be fair to both parties under the law; do you understand that?

MR. JACOBSEN: Yes, I do, Your Hon- or. I hope you’ll bear with me in the fact that I’m not versed in any Court procedures or anything like that but—

THE COURT: You have a right to represent yourself and likewise I have to rule and make certain rulings that you might not understand.

MR. JACOBSEN: I understand. The terminology and everything will probably be—

THE COURT: Alright, are you prepared to go forward, Mr. Jacobsen?

MR. JACOBSEN: Yes, I am.

At this point, it would have been but a simple matter for defendant to protest to the trial judge that he needed more time to prepare or to retain a new attorney, that his files and depositions were still in the possession of his former attorney and thus not available to him in preparation of his defense, or that he wanted a jury trial. Had he but raised any of these questions to the trial court, we might have a different case here.

But he did not raise these questions and went forward with the trial. In so doing, he accepted the consequences of that action, ignorance of the law notwithstanding.

The main opinion points out that this Court has said that a layperson acting as his own attorney “should be accorded every consideration that may reasonably be indulged.” 4 The record shows that the trial judge did make every effort to accommodate defendant’s lack of legal knowledge during the trial. Preceding the trial, the judge carefully explained the procedures to be followed during the trial. As the trial went on, he further explained procedures, the bases for objections and the way to cure those objections. The judge also raised objections himself when plaintiff’s counsel was pursuing an improper line of questioning. And finally, he occasionally overruled objections of plaintiff’s counsel, explaining:

THE COURT: I know but he isn’t a lawyer so I’ve got to be liberal with him, Mr. Mclff, so your objection’s overruled. I realize it’s not proper but I feel like I’ve got to give latitude....

The main opinion, however, suggests that this is not enough and requires the trial court to caution the pro se litigant as to the risks of representing himself and to apprise the litigant of his available legal options.

Heretofore, there has been no requirement, in either the federal courts or the state courts, that a party appearing pro se in a civil trial must be cautioned as to the dangers and disadvantages of self-representation, nor must he be given a laundry list of all of his available legal options. While it is true that this caution must be given to pro se defendants in criminal trials, 5 the standard in civil trials is not nearly so stringent. In fact, the federal courts have held that there is no constitutional right to counsel at all in civil trials. 6

Thus, the main opinion imposes an entirely new and rigid procedure on trial judges who are faced with pro se litigants. I believe that this stricture is neither necessary nor proper in civil trials.

The instant ease is a good case in point. Having seen fit to retain counsel initially, defendant was obviously aware of the benefits to be derived from representation by counsel. Conversely, he had to have been aware of the hazards of going it alone. Having seen fit to discharge his former counsel, for whatever reason, and to pro *1222 ceed with the trial acting as his own attorney, he cannot be heard to complain now that he was deprived of due process of law because of results directly attributable to his own actions.

I believe that the trial judge exercised sound discretion in permitting the trial to go forward and that the defendant was not deprived of any constitutional protections.

. See also Heathman v. Hatch, 13 Utah 2d 266, 268 , 372 P.2d 990, 991 (1962).

. See, e.g., Manka v. Martin, 200 Colo. 260 , 614 P.2d 875, 880 (1980) (en banc); Makin v. Liddie, 102 Idaho 705 , 639 P.2d 3, 4 (1981); Johnson v. Aetna Casualty & Surety Co. of Hartford, Wyo., 630 P.2d 514, 517 (1981).

.Manka v. Martin, supra n. 2 , at 880.

. Supra n. 1, 372 P.2d at 991 .

. Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); State v. Dominguez, Utah, 564 P.2d 768 (1977).

.Boulware v. Battaglia, 344 F.Supp. 889 , aff'd, 478 F.2d 1398 (D.Del.1972); U.S. ex rel. Stuart v. Yeager, 293 F.Supp. 1079 (D.N.J.1968), aff'd, 419 F.2d 126 (3rd Cir.1969), cert. denied, 397 U.S. 1055 , 90 S.Ct. 1400 , 25 L.Ed.2d 673 (1970).