Come meet the new kid on the block

Lunch with Judge Carolyn B. McHugh---the newest member of the Utah Court of Appeals.

Friday, January 20, 2006
12:00-1:30
Utah Law and Justice Center
645 South 200 East
Salt Lake City, UT 84111

$12 in advance, $15 at the door. Email cle@utahbar.org to reserve a spot.

Courtesy of the Utah Bar Appellate Practice Section.

Oh yeah, you get a whole hour of CLE credit.

Fathers, lock up your daughters

or the state will.

State in re Z.C., 2005 UT App 562

The court of appeals affirms a thirteen year-old girl's adjudication for sexual abuse of a child based on "mutually welcome sexual intercourse" with her 12 year-old boyfriend. Under Utah's sex offense laws the juvenile's conduct is labeled a second degree felony, but similar conduct between consenting fourteen year-olds is labeled only a class B misdemeanor. The court found that this scheme did not violate equal protection guarantees:

The Legislature is well within its rights to come down solidly against sexual activity with children of such tender years---anywhere, anytime, any place, and by anyone.

The court commented in a footnote, however, that the legislative scheme appeared to be an oversight, and said:

If this unusual outcome was indeed an oversight, we encourage the Legislature to effectuate its actual intent by amending the statute perhaps providing for less serious repercussions for juveniles under fourteen years of age then the engage in mutually welcome sexual activities with their peers.

A few treats from the supreme court

State v. Orr, 2005 UT 92

Q: What due process is required to extend probation?

A: Minimal due process.

The court clarifies the due process requirements for criminal probation extension. All you need is (1) notice of the violation before the end of the probationary period, (2) a hearing, and (3) written findings on the evidence and the reasons for revoking probation. In a pinch, a transcript of oral findings at the hearing will do.

The View Condo Owners Ass'n v. MSICO, 2005 UT 91

Two issues: (1) A restrictive parking covenant created in the master declaration and plat map of a development in Alta was not terminated by a subsequent amendment to the plat map. The court held that the unambiguous language of the declaration and plat map made the parking covenant a servitude that ran with the land. The court also held that the changes in the amended plat were consistent with the parking covenant.

(2) Alta's change to its snow removal plan for the development was not a regulatory taking.

I never finish anything

I'm home at my parents' for the holiday. My mom had a box of stuff from the grade school days, and in the box was one issue of a science fiction magazine I'd written for a sixth grade project. The feature article of the magazine was a fiction piece called Captain Volehead and the black hole. I remember writing Captain Volehead stories as a kid. I particularly remember never correctly spelling "captain."

My wife is reading the Captain Volehead stories to my four year-old. It's heart-warming to see you child listen raptly to things you wrote as a child. My attention span at eleven wasn't much more than his is now, so I suppose the pacing and diction is perfect for him.

I'm surprised at the quality of the writing. I mean, its no Jane Austin, but for an eleven year-old, it shows some promise. But I never continued. I took a creative writing class in high school. I've started a few screenplays. But I've never pursued writing like I should have---cause I enjoy it.

I never finish anything. I like playing music, but I'm not proficient in any instrument. I can play the drums, the guitar, the piano, the mouth harp. But I'm not any good at any of them. I like to work on cars, but I've never been good at keeping a car in good shape. I had a Jeep Grand Wagoneer. That poor thing; I beat the crap out of it. I rebuilt the engine and did a half-assed job of it. I ran horrible, and I ended up selling it for scrap for about $400. I originally paid $4000 for the car.

So, I going to finish something. I'm going to finish this. I'm going to write this blog, and I'm going to do a good job of it. I will report on each decision of the Utah Supreme Court. Why? I don't know. Cause I want to finish something.

State v. All Real Property

2005 UT 90

The title of this case makes it sound like the state government is trying to privatize the entire state. That's funny.

The short: Collateral estoppel prohibits raising new claims on the same issue in successive rule 60(b) motions.

The too long: The State was seizing property under the controlled substances act, 58-37-13. The defendant never responded to the notice of forfeiture, and the district court entered a default judgment. The defendant filed a 60(b) motion for relief from the judgment. He argued that under 58-37-13, the notice of forfeiture had to be personally served. The State had mailed it.

The district court denied relief, ruling that service by mail was proper. Defendant claimed in the court of appeals that the complaint also had to be personally served. The court of appeals dismissed that argument because defendant did not assert it in the trial court.

Defendant did not seek review of the court of appeals decision. Instead, he filed a new 60(b) motion in which he renewed his claim that the complaint had to be personally served. Both the district court and the court of appeals held that defendant waived the claim by not raising it in the first 60(b) motion.

The supremes agreed. This is simple collateral estoppel. The defendant could have raised the claim in his first 60(b) motion. He didn't, so he's estopped from raising it in his second motion. "[A] party is precluded “from relitigating issues which were once adjudicated on the merits and have resulted in a final judgment." If defendant didn't like the outcome of his first 60(b) motion, he should have petitioned for cert.