Blogging will be light this week. I have two cases from last Friday I still need to post, and the supreme court is releasing two more tomorrow. I will get them up as soon as I can. But I have argument in the supreme court on Thursday, and I'm far from prepared.

Ironically, instead of preparing for argument over the weekend, I spent my time preparing to speak in church on the subject of prayer. Now a prayer might be the only thing I have ready for Thursday.

Timing of rule 59(e) and rule 60(b) motions is jurisdictional

National Adver. Co. v. Murray City, 2006 UT App 75

Defendants Gene and Sherry Crawford won a fight with NAC over an outdoor advertising sign. The court of appeals affirmed the ruling in National Adver. Co. v. Murray City, 2003 UT App 332. After the remittitur issued, the Crawfords moved the trial court to reopen the judgment and amend their answer and crossclaim, under rule 59(e) or rule 60(b), Utah Rules of Civil Procedure, to include a breach of contract claim. The trial court granted their motion.

NAC appealed, and the court of appeals held that the trial court lacked jurisdiction to reopen the judgment and permit the Crawfords to amend their crossclaim. The Crawford's motion, filed more than a year after the judgment, was well beyond the ten days allowed to file a rule 59(e) motion and the three months allowed to file a 60(b) motion.

The court specifically ruled that the filing of an appeal did not toll the time to file rule 59(e) or rule 60(b) motions. To someone familiar with the rules of appellate procedure, that seems axiomatic. Under rule 4(b), Utah Rules of Appellate Procedure, a rule 59(e) motion tolls the time to file a notice of appeal. So it makes no sense to say that a timely notice of appeal tolls the time file a rule 59(e) motion.

Judges do not get to engage in civil disobedience

In re Inquiry of a Judge, The Honorable Walter K. Steed, 2006 UT 10

The Right Honorable Judge Steed has been a practicing polygamist for more than twenty-years. He has three wives and thirty-two children. The Judicial Conduct Commission determined that this violated his oath office in which he pledged to obey and defend the Utah Constitution. The supreme court agreed and ordered Judge Steed’s removal as a justice court judge in Hilldale, Utah:

Judges in this state are expected to abide by all the laws applicable to them. Civil disobedience carries consequences for a judge that may not be applicable to other citizens. The dignity and respect accorded the judiciary is a necessary element of the rule of law. When the law is violated or ignored by those charged with the fair and impartial enforcement of the law, the stability of our society is placed at under risk.

The court also dropped this little zinger to the legislature in a footnote:

We note that Utah Code section 78-8-107(8)(c) contains a provision requiring this court to act on judicial discipline matters within 90 days. Such a statutory regulation of this court’s internal process is beyond the constitutional authority given to the Legislature to regulate the composition and procedures of the Judicial Conduct Commission. Thus, while we share the Legislature’s apparent view that these matters require our prompt attention, we view the statutory limit as being without effect.

This case really doesn't matter, unless you are Michael Martinez

State v. Martinez, 2006 UT App 76

Martinez argued that Utah Code Ann. §§ 41-6-166 (1998) limits police discretion to arrest for a misdemeanor traffic offense to only certain situations specifed in that section. The court of appeals disagreed. Section 166 merely dictates post-arrest procedures.

But the legislature repealed section 166 last year when it renumbered the traffic code. So this published decision is of no value, unless you are Michael Martinez, in which case it means your conviction for meth possession will stand.

Utah decides that Crawford v. Washington did not overrule Maryland v. Craig

State v. The Honorable Stephen L. Henriod, 2006 UT 11

Greg Jonas was charged with molesting his six-year old daughter. The State moved to allow the daughter to testify at trial via closed circuit camera in another room, as permitted by rule 15.5(2), Utah Rules of Criminal Procedure. The State claimed that requiring the child to testify in the physical presence of her father would cause serious mental and emotional strain. Judge Henriod denied the motion under Crawford v. Washington, and the State appealed.

In the supreme court, the State claimed that testimony by camera satisfied the Confrontation Clause, relying on a Maryland v. Craig, 497 U.S. 836 (1990). Jonas argued that Crawford v. Washington, 541 U.S. 36 (2004), overruled Craig.

Under Craig:

[W]here necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontation Clause does not prohibit the use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.

Henriod, 2006 UT 11, ¶ 11 (quoting Craig, 497 U.S. at 857). Craig went on to uphold a Maryland statute that permitted children to testify by camera when the judge determined that testimony in the courtroom would result in the child suffering serious emotional distress such that the child could not reasonably communicate.

The supreme court decided that Crawford did not overrule Craig. It explained,

The Crawford majority opinion not only failed to explicitly overrule Craig, but also failed to even mention it. Moreover, we do not believe Crawford implicitly overruled Craig because neither the majority nor the concurrence even discussed out-of-court testimony by child witnesses. By its own terms, the Crawford holding is limited to testimonial hearsay.

Henriod, 2006 UT 11, ¶ 16. The court also noted that other jurisdictions to consider the issue had decided that Crawford did not overrule Craig.

The court’s opinion concluded by noting that the court was not ruling that Jonas’ daughter could testify by camera, or even that rule 15.5 satisfied the requirements of Craig. It was only holding that Craig was not overruled by Crawford. Thus the question of whether rule 15.5 complies with Craig and with the Confrontation Clause remains open for debate.

Drunk driver in fatal crash may not be convicted of both automobile homicide and DUI

State v. Perez-Avila, 2006 UT App 71

The court of appeals held that DUI is lesser-included offense of automobile homicide and that a defendant cannot be convicted of both offenses in the same course of conduct.

Perez-Avila rolled his pickup truck on I-15 just south of Leeds, Utah. The accident killed his pregnant wife and seriously injured his two children. A sample of Perez-Avila’s blood taken shortly after the accident contained three times the legal limit of alcohol. He was subsequently convicted of a variety of charges, including two counts of automobile homicide and one count of DUI.

On appeal, Perez-Avila claimed his claimed his trial counsel was ineffective for (1) failing to move to suppress the blood-alcohol evidence and (2) failing to move to merge the DUI conviction into the automobile homicide convictions.

The court of appeals found no ineffectiveness in the first claim because a motion to suppress would have been futile. Perez-Avila was unconscious when his blood was drawn, and under Utah’s implied consent law, a DUI suspect’s implied consent remains in force if he is dead, unconscious, or otherwise incapable of refusing consent.

As to the second claim, the court found that trial counsel was ineffective because a motion to merge the offenses would have been granted. The court first noted that DUI is a lesser included offense of automobile homicide because all of the elements of DUI must be established to prove automobile homicide. Compare Utah Code Ann. § 44-6a-502 and Utah Code Ann. § 76-5-207. Under the merger doctrine found in Utah Code Ann. § 76-1-402, the offenses should merge.

The State argued, however, that auto homicide is an enhancement offense, similar to felony murder. That is, it takes an act that is a lesser crime or no crime at all and enhances it to a greater crime based on a predicate offense. The Utah Supreme Court carved out an exception to the merger doctrine for enhancement offenses in State v. McCovey, 803 P.2d 1234 (Utah 1990). The State asserted that DUI is a predicate offense to auto homicide because it raises a class A misdemeanor negligent homicide to a second degree felony when the actor also commits DUI.

The court disagreed. It concluded that the supreme court’s recent opinion in State v. Smith, 2005 UT 57, limits the exception in the merger doctrine for enhancement offenses. The exception only applies when there is a clear legislative intent to create an enhancement statute. The court gave two examples when this might occur.

First, the statute might create a graduated punishment scale within itself based on the commission of other offenses. For example the crime of carrying a concealed weapon is enhanced if the offense is committed in conjunction with a crime of violence like aggravated assault. In such a case, aggravated assault is a predicate offense that enhances the penalty for carrying a concealed weapon.

Second, the statute might explicitly state that it should not merge with lesser offenses. The burglary statute, for example, lists the offenses that turn criminal trespass into burglary and then states that burglary is a separate offense from any of those offenses.

The auto homicide statute does not fit either of those circumstances. It does not explicitly state that it is a separate offense from DUI. Nor does the level of the offense change within the statute based on the commission of DUI. Auto homicide changes its level of offense based on the mens rea—criminal negligence as opposed to simple negligence—not the commission of DUI. Thus it is not a true enhancement offense, and a drunk driver involved in a fatal accident may not be convicted of both auto homicide and DUI.

Brigham City brief filed

The AG filed his brief today to the U.S. Supreme Court in Brigham City v. Stuart. There is a pdf copy of the brief here. There are also links to the joint appendix and amici briefs here. Argument will probably be heard sometime in April.

Seat belt amendments die in committee, again

Steve Urquhart is live blogging from the House today.

The first bill before his House Law Enforcement and Justice Committee was S.B. 98 Safety Belt Enforcement Amendments. Steve writes:

This bill would allow law enforcement to pull over and ticket drivers for not buckling up. Currently, a driver cannot be pulled over for a seat belt infraction. A seat belt infraction is a secondary offense to some other primary infraction for which the driver is pulled over.

Sen. Hale presented. AAA spoke in favor, arguing this would save lives and fit well with out strong DUI laws. UDOT spoke in favor, pointing out that 75% of those dieing on our highways are improperly restrained. PTA spoke in favor, arguing that children largely do buckle up, but many parents don't; children need parents. Primary Childrens spoke in favor, arguing that properly buckled parents have properly buckled children. Highway Patrol spoke in favor, arguing that buckled drivers are safer because they don't slide around in dicey situations. Chairman Bowman is describing the death of his son-in-law in a rollover. Rep. Pat Jones moves to pass the bill. It fails 6-4.

From Steve's description of the broad support for the bill and the compelling arguments in its favor, you would never guess that he voted against it.

Our seat belt statute is even more messed up than most legislators I think realize. The secondary offense provision, which is what Senator Hales was trying to repeal, states:

(4) For a person 19 years of age or older who violates Subsection (1)(a) or (2), enforcement by a state or local law enforcement officer shall be only as a secondary action when the person has been detained for a suspected violation of Title 41, Motor Vehicles, other than Subsection (1)(a) or (2), or for another offense.

Some district courts have read this provision (correctly I think) to allow law enforcement to cite a passenger for a seat belt violation only when the passenger is detained on suspicion of violating the law. In other words, our seat belt law is unenforceable against passengers over the age of 19, unless they are breaking the law in some other way.

Torts

Christiansen v. Union Pac. R.R. Co., 2006 IT App 117

Christiansen worked for Union Pacific in 1951 installing and removing asbestos containing components. In 1995 he retired because of breathing problems and went on disability. Although he suspected asbestosis, doctors diagnosed him with congestion, pneumonia, and other non-asbestos related conditions. In 2002, Christiansen filed suit against Union Pacific for negligence. Later that year he was diagnosed with asbestosis.

The trial court granted summary judgment Union Pacific’s claim that the three-year statute of limitations for FELA (Federal Employer’s Liability Act) claims had run. It denied Union Pacific’s motion for summary judgment on the merits.

Held:

(1) FELA negligence claims impose a lighter burden on plaintiff’s than ordinary negligence claims. The plaintiff need only show “slight negligence.” Christensen proffered sufficient evidence of negligence, by way of an affidavit from an asbestos expert, to survive summary judgment on the merits.
(2) The parties agree on the facts as they related to summary judgment, but disagree on their interpretation. The proper interpretation of the facts should therefore be left to the factfinder, and summary judgment was inappropriate.

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Johnson v. Utah Dep’t of Trans., 2006 UT 15

Johnson sued UDOT for injuries resulting from an auto accident in a construction zone on I-15. The accident occurred, in part, because UDOT used orange barrels to mark the construction zone rather than concrete barriers.

Both parties agreed that UDOT’s action qualified for blanket immunity under the Governmental Immunity Act but that section 63-30-8 waived that immunity. So the only question was whether UDOT’s action qualified for the "discretionary function exception" to the immunity waiver. That exception applies when "the injury arises out of, in connection with, or results from . . . the exercise or performance or the failure to exercise or perform a discretionary function." The supreme court held that UDOT's decision was not a discretionary function.

Using the Little test, the court determined that UDOT had not shown that it’s decision was a policy decision essential to completion of the construction project. Rather, it was the unilateral action of a single employee without analysis or deliberation. It thus constituted a operational function, not a discretionary function.

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Fordham v. Oldroyd, 2006 UT App 50

Utah joins the majority of states in adopting the professional-rescuer doctrine. That doctrine, elsewhere known as the “firefighter’s rule” or the “public safety officer rule,” bars a professional rescuer from recovering damages for injuries sustained while responding to a crises, from the person who negligently created the crises.

An example would go something like this: Citizen does something negligent that puts him in peril—a fire, an auto accident, etc. Police Officer responds to render assistance and, while assisting Citizen, is injured. Under the professional-rescuer doctrine, Police Officer cannot sue Citizen for negligence.

But the doctrine as adopted by the court of appeals is somewhat narrower than my example. The court only barred recovery for injury caused by the initial negligence that brought the professional to the scene. Fordham’s case is instructive.

Oldroyd lost control of his car on an icy freeway off-ramp and crashed. Fordham, a Utah Highway Patrol trooper, responded to the accident. While Fordham was getting some flares out of the trunk of his cruiser, he was struck by another driver who lost control of her car on the ice (Note: when it snowed earlier this week, there were over 600 accidents in Utah, including 265 in Salt Lake County—everybody needs to slow down or stay off the road).

Fordham sued and recovered from the driver who hit him. He also sued Oldroyd. But under the rule adopted by the court of appeals, Oldroyd is not liable for Fordham’s injuries. But Oldroyd would have been liable if he had acted negligently after Fordham arrived:

In reaching the conclusion that the professional-rescuer doctrine bars Fordham's claim against Oldroyd, we emphasize the doctrine's narrowness; it bars only recovery for the negligence that creates the need for the public safety officer's service. Therefore, the professional-rescuer doctrine does not apply to negligent conduct occurring after the police officer or firefighter arrives at the scene or to misconduct other than that which necessitates the officer's presence.

Discovery violation ends lengthy litigation between soulless corporations

Aurora Credit Services, Inc. v. Liberty West Development, Inc.

This line from Judge Dever, buried in a footnote in the court of appeals opinion, pretty much sums up the problem in this case: "All discovery in this case will be completed sixty days from today's date. Operative word is completed, gentlemen. This case is almost as old as my children."

Aurora willfully failed to comply with Judge Dever's discovery order, and now appeals the dismissal of its complaint with prejudice.

Aurora first claims that it didn't have to respond to the initial discovery requests because the requests were mailed to the wrong address. But Aurora actually received the requests a week after they were mailed, and "Utah courts have held that actual notice of discovery requests is sufficient to invoke rule 37" (civil procedure rule 37 governs motions to compel discovery and sanctions for violation of a discovery order). So common sense triumphs over cold technicality

Aurora also claimed that it did respond to the discovery order by serving written responses and objections within the time required by the order. But the court of appeals determined that Aurora's response "consisted primarily of objections." Since the objections were served well after the deadline to respond to the initial discover requests, the objections were waived. Aurora thus violated the discovery order by responding only with waived objections rather than information.

The court of appeals also determined that Aurora's violation of the discovery order was willful. So the district court did not abuse its discretion when it dismissed Aurora's complaint with prejudice.

UTA off the hook for bicycle accident on railroad tracks

Utah Transit Authority v. Salt Lake City So. R.R. Co., Inc

Some guy crashed his bicycle on a section of railroad track near 17th south and 200 west. I believe the section is now predominately a Trax line. But at the time (1998), UTA owned it but was not yet using it for Trax service. Southern Railroad had a limited easement for freight rail service and was responsible for maintaining the track.

The bicyclist sued pretty much everybody he could think of, including UTA and Southern. UTA asked Southern to indemnify it under the terms of their Administration and Coordination Agreement. Southern refused, claiming that contract only required maintenance for freight service, not bicycle safety.

The court of appeals disagreed. If held that the language of the contract unambiguously put the duty to maintain the safety of the track on Southern. It thus affirmed the trial court's award of $238,190.69 to UTA for indemnification for litigation costs.

I wonder, what was the $.69 for? Paper clips?

Court of appeals reverses murder conviction for failure to give adequate notice of intent to use expert witness

State v. Torres-Garcia, 2006 UT App 45

After a dispute over heroin, Torres-Garcia executed Todd Irwin in a hotel room in front of Irwin’s wife. The court of appeals reversed Torres-Garcia’s murder conviction because he did not receive adequate notice of the State’s expert witness or a continuance.

Although the State served a notice of the witness, Craig Watson, on Torres-Garcia more than thirty-days before trial, it sent the notice to the wrong defense attorney and to the wrong address. Torres-Garcia thus did not discover Watson until five days before trial. The trial court determined that Torres-Garcia was entitled to a continuance to prepare for the witness. The State opted instead not to use Watson’s testimony.

The day of trial, the State pointed the court to an exception in the expert witness notification statute, section 77-17-13(6), for government employees. Because Watson was an investigator in the district attorney’s office he fell under the exception. The court let him testify without granting Torres-Garcia a continuance.

In reversing, the court of appeals focused not on whether the State had complied with the expert witness statute, but rather, on the State flip-flopping before trial:

The essence of the trial court’s error is that it initially ruled one way on the use of Watson as an expert witness, prompting an important concession by the State, and then reversed itself on the morning trial began. The trial court should have recognized that this “false start” lulled Defendant into a state of understandable complacency as concerns giving any pretrial attention to Watson’s expert testimony.

. . .

Thus, given the court’s initial ruling that notice was insufficient and the State’s agreement not to use Watson as an expert, the real problem here was that defendant had no reason in the key preparation days immediately before trial, to think Watson’s expert testimony would be used at trial nor any motive to prepare to meet the testimony.

The court of appeals further held that Torres-Garcia was prejudiced by the failure to grant a continuance because Watson’s testimony substantially rehabilitated the seemingly inconsistent testimony of the State’s only witness to the murder, Irwin’s coke-head wife.

Editor’s note: I disagree with the court’s analysis on prejudice. The court correctly determined that Watson’s testimony destroyed Torres-Garcia’s defense and hurt defense counsel’s credibility. It also correctly noted that the trial court’s failure to grant a continuance prohibited defense counsel from coming up with a new defense.

But that’s not the test for prejudice. An error is prejudicial only if, absent the error, there is a reasonable likelihood of a different outcome. Merely showing that denial of a continuance hurt defendant’s case is insufficient. The court must also determine that defendant could have used the continuance to come up with a response to the expert that would have altered the outcome of the trial.

The court of appeals opined that defense counsel might have used a continuance to prepare to meet Watson’s testimony in other ways—like attacking Watson’s qualifications or reorganizing the defense strategy. But that’s mere speculation, not a showing of a reasonable likelihood of a different outcome. It’s only prejudice if Watson’s qualifications are actually impeachable, or if there is some other viable defense strategy that would result in an acquittal. Absent such a showing, the court is reversing a murder conviction on mere speculation that a retrial might end in acquittal.

One more thought on the UPEA opinion

State v. Holm, Case No. 20030847-SC, has been pending in the supreme court since it was argued on February 3, 2005. The court has been working on it for over a year.

The court issued UPEA thirty-seven days after argument. During that time, Justice Wilkins wrote fifty paragraphs for the majority comprising about twenty pages. Justices Parrish and Nehring also wrote lengthy concurrences arguing over whether the phrase "eligible to receive retirement benefits" is ambiguous. Justice Parrish wrote 31 paragraphs, seven of which were devoted to rebutting Justice Nehring's critique of her concurrence. Justice Nehring wrote 27 paragraphs, 18 of which were devoted to criticizing Justice Parrish's concurrence.

Court criticizes parties and legislature in UPEA case

The trib has story on the darker side of the H.B. 213 litigation.

I didn't include the court's chastisement of the parties and the legislature in my summary because it wasn’t central to the court’s holding. But one point the trib missed: the court apparently was also not happy with the briefing provided by the parties.

The court wrote, “Given the extremely short time allotted to each party to present its arguments in the briefs, the submission were adequate.” (¶ 15).

But elsewhere, the majority made clear that it had relied predominantly on its own research and not on the parties. The court said things like, “Our extensive research led . . .” (¶ 3) and “Our own research has also led . . .” (¶ 7). It also criticized the parties for misstating the statutory history (¶ 3). The court pointed out the parties' failure to “address the complex history of the statutory scheme and its relevance to the constitutional challenge presented” and further reproached the parties for “discount[ing] the issue raised by the court [in a supplemental briefing request]” and failing “to shed any meaningful light on the questions.” (¶ 15).

State employees do not have vested property right to convert sick leave to benefits when they retire

Utah Pub. Employees Ass’n v. State of Utah, 2006 UT 9

The supreme court held that the legislature's revocation of a state employee retirement benefit did not violate the takings clause of the Utah constitution because the benefit did not vest until the the employees actually retire.

Background: For more than 25 years, State employees have been offered a retirement benefit found in Utah Code Ann. § 67-19-14.2, entitled the “Unused Sick Leave Retirement Option Program” (“the Program”). Essentially, the program permits State agencies to offer their employees the option at retirement of converting their unused sick leave into paid-up health insurance at the rate of approximately eight hours of sick leave for one month of insurance. The statute authorizing the program has varied over the years. Sometimes it allowed the employee to convert 100 % of his or her sick leave and other times the employee could only convert 75 % and had to take a cash payout or a 410(k) contribution for the other 25 %. But the practice has generally been to allow employees to convert 100 % of their sick leave, despite changes in the statute over the years. In 2004, the legislature again amended the statute to reflect actual practice and permit employees to convert 100 % of their sick leave.

In 2005, the legislature passed H.B. 213. That bill phases out the Program over a five-year period and also returns the Program to its pre-2004 statutory requirements: 25 % of the sick leave accrued before January 1, 2006, must be paid out to the employee’s 401(k) plan.

The Utah Public Employees Association (UPEA) and the five employees sued the State. They claimed that the Program gave them a vested property interest in converting 100 % of their sick leave to paid-up benefits and that H.B. 213 enacted an unconstitutional taking of that property interest. The district court ruled that H.B. 213 did not constitute an unconstitutional taking and granted summary judgment for the State.

Analysis: The court split its decision between a majority opinion written by Associate Chief Justice Wilkins and joined by Chief Justice Durham and Judge Greenwood (Justice Durrant recused himself) and concurring opinions by Justice Parrish and Justice Nehring.

The majority first noted that H.B. 213 was not yet effective (the court stayed implementation of the bill until thirty-days after it disposed of the case) and UPEA therefore could only bring a facial challenge. The court then rejected the rule from United States v. Salerno, 481 U.S. 739 (1987), that requires a party mounting a facial challenge to show that the statute is unconstitutional in all of its applications—i.e. no set of circumstances exists under which the challenged act would be valid. Relying primarily on City of Chicago v. Morales, 527 U.S. 41 (1999), the court explained that the Supreme Court does not require states to follow the Salerno test when a facial challenge to a statute is brought under a provision of the state constitution. Rather, “a more appropriate threshold for determining the validity of facial challenges may simply exist in establishing the substantive merits of the case—the unconstitutionality of the legislation.

On the merits, the majority first explained that to show a taking, the plaintiff must establish (1) a protectable property interest and (2) a taking of that property. The majority and both concurrences agreed that UPEA’s challenge failed at the first step.

The general rule is that public employment is governed by statute and is subject to change at the will of the legislature. In other words, state employees have no vested property interest in any benefit the state offers. But there are two exceptions to the general rule: (1) when an employee has a vested contractual interest in retirement benefits; and (2) when the government agency creates a contractual interest by voluntarily undertaking additional obligations beyond the relevant statutory requirements.

Public employees had no vested contract rights in the Program. Vested contract rights arise only when the employee satisfies all the conditions precedent to obtain the benefit. The condition precedent to receiving the benefit of the Program was that the employee must be “eligible to receive retirement benefits in accordance with Title 49, Utah State Retirement and Insurance Benefit Act.” The majority found this language ambiguous. All full-time state employees accrue retirement benefits, but they don’t actually receive the benefits until they retire. Thus the Program could be read to vest upon employment, upon eligibility to retire, or upon actual retirement.

So the majority turned to extrinsic evidence to divine the legislature’s intent. The court determined that the critical inquiry was “at what point employees can act to accept the offer to redeem banked sick leave exclusively for medical and life insurance.” The answer to this inquiry is “only upon retirement.” Employees thus have no contractual claim upon the Program (i.e. no vested property interest) until they actually retire.

The court also held that agencies that voluntarily offered the program did not create an express or implied contract. Section 67-19-14.2 permits agencies to offer the program to its employees. It does not mandate offering the program. By offering the program, the agency goes beyond its statutory obligations. But “the critical question remains at what point in time employees are able to accept the offer.” So the second exception to the general rule is answered the same as the first: no right vests until actual retirement.

Since the majority held that no vested property interest arises until retirement, it did not reach the question of whether H.B. 213 constitutes a taking of that interest.

In her concurrence, Justice Parrish agreed with the majority up to the point where it found the language of section 67-19-14.2 ambiguous. She disagreed that the language was ambiguous. In her view, when that section is read in context with the rest of the retirement statues, it clearly vests a right in the Program only upon retirement.

She also argued that the second exception to the general rule—that state employees work at the will and pleasure of the legislature—is inapplicable to a facial challenge to the statute. She reasoned that a facial challenge turns solely on analysis of statutory language. One could therefore never bring a facial challenge to a benefit that an agency provides that is beyond its statutory obligations. In other words, if the benefit is truly outside the scope of the agency’s statutory obligations, one could not mount a facial challenge against the statute.

Justice Nehring also agreed with the majority. He wrote separately, however, to respond to Justice Parrish’s argument that the statute was not ambiguous. He also disagreed with the majority’s resolution of the statutory ambiguity. In his view, an ambiguous statute cannot vest property rights. He sees this as an instance where the legislature wins because it enacted “a statute remarkable for its impenetrability.”

The courts issued a load of opinions today. The copy guy brought them to my office with a forklift. I will get summaries up as soon as I can, starting with the supreme court's slap to UPEA.

Supreme Court

UPEA v. State

Court of Appeals

Aurora Credit Services v. Liberty West Development
Fordham v. Oldroyd
State v. Torres-Garcia
Utah Transit Authority v. Salt Lake City Southern Railroad Company, Inc.

Unpublished Decisions

Gaudette v. Gaudette nka Park
Sandy City v. Haertel
Harley Davidson v. DWS and Mason
Jackson v. State
State v. James
K.N. v. State (In re D.N., et al.)
J.I. v. State (In re I.M. and A.M.)
P.W. v. State (In re J.W.)
Llewellyn v. Skiles
Orem City v. Martinez
Salt Lake City Corporation v. SLCCSC and Begay
Sonntag v. Ward
Yardley v. UDOT

The State of the Beehive : New Rules of Evidence

The State of the Beehive has a post on the expidited amendment to the rules of evidence the supreme court issued this morning. The new rule limits the admission of traffic violations as evidence, substantive or impeachment, on the issue of negligence.

Single email held insufficient to give Utah personal jurisdiction over spammer

Fenn v. Mleads Enterprises, Inc., 2006 UT 8

Brittney Fen received an unsolicited email from Mleads that did not comply with Utah’s Unsolicited Commercial and Sexually Explicit Email Act (“the Act”). The Act permitted her to sue Mleads for $10 plus attorneys fees and costs, which she did. The district court dismissed the case for lack of personal jurisdiction. The court of appeals reversed, and the supreme court granted cert to consider this question: whether asserting personal jurisdiction over a foreign corporation based on a single email sent into Utah satisfied due process?

As the court noted, the problem with analyzing personal jurisdiction based on contact via the internet is that the “a defendant, like Mleads, is generally unaware of the geographic location to which it sends an email.” In such cases, the purposeful availment test and the effects test are unhelpful because they require either intent or knowledge of the contact with the forum state.

So the court turned to a sliding scale test used in Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124—25 (W.D. Penn. 1997). Under that test, the court must determine “whether the defendant corporation actually engages in knowing ad repeated transmission of computer files over the Internet.” At one end of the scale are “passive” web sites that merely display information that anyone can access. These do not create personal jurisdiction. At the other end of the scale are companies that knowingly and repeatedly transmit computer files over the internet into the forum state. These companies are subject to personal jurisdiction. “The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” The court looks to the type of activity and the level of exchange that occurs.

Fenn failed to show that Mleads email was sufficiently interactive to allow personal jurisdiction. The email did not create a business transaction with Fenn, it merely provided her with information. She never responded to the email and never contacted Mleads through any other means. Thus, Utah could not assert personal jurisdiction over Mleads.

Coincidentally, one month after Fenn filed her complaint against Mleads, Utah repealed the Unsolicited Commercial and Sexually Explicit Email Act. It did so because the feds passed Controlling the Assault of Non-solicited Pornography and Marketing (CAN-SPAM). CAN-SPAM pre-empts state law and sets a national standard for spam.

Really, the problem in this case isn’t personal jurisdiction, or the lack thereof. State’s just shouldn’t be trying to regulate what happens on the internet. The federal government is much better suited. Near the end of the opinion, the court points out the problem with states asserting personal jurisdiction over companies that violate their email laws:

Practically speaking, companies would be required to know the laws of each state and to be prepared to litigate in all fifty of them. Precisely because of this complication, the federal government preempted the Act and those similar in other states with CAN-SPAM, which state: “[t]here is a substantial government interest in regulation of commercial electronic mail on a nationwide basis.” The federal statute goes onto explain that state legislation regarding spam has been ineffective, “in part because, since an electronic mail address does not specify a geographic location, it can be extremely difficult for law abiding businesses to know with which of these disparate statutes they are required to comply.”

Unpublished court of appeals decisions

Along with the published decisions summarized below, the court issued the following unpublished decisions:

Burton Lumber v. Graham, 2006 UT App 41 (Appellate Jurisdiction/Finality of Judgments)

State v. Clegg, 2006 UT App 44 (sufficiency of evidence to support theft by deception conviction)

Provo City v. Gedo, 2006 UT App 43 (inadequately brief criminal appeal)

State Tax Comm'n v. Goff, 2006 UT App 37 (pro se tax protesters pick a fight with the Tax commission and lose)

J.W. v. State (In re D.W.), 2006 UT App 42 (parental rights termination)

C.M. v. State (In re S.M. and D.M.), 2006 UT App 38 (more parental rights termination)

Llewellyn v. Skiles, 2006 UT App 39 (appellate jurisdiction)

Topham v. Kennard, 2006 UT App (65B relief)

Time to file notice of claim under Government Immunity Act not tolled by discovery rule

Cedar Professional Plaza, L.C. v. Cedar City Corp., 2006 UT App 36

Cedar Professional Plaza (“CPP”) sought to use the discovery rule to circumvent the one-year statute of limitations for filing a claim under the Utah Governmental Immunity Act (“the Act”). The trial court refused to apply the discovery rule and dismissed CPP’s complaint. The court of appeals affirmed.

CPP’s property was flooded when a pipe burst at a construction project supervised by Cedar City and on city property. CPP filed two notices of claim against Cedar City within the one-year period, but filed them with the wrong government agent (the proper agent was the city recorder). Thinking it had complied with the notice requirements of the Act, CPP then filed a civil lawsuit against the city under a theory of supervisory negligence. But since CPP had not strictly complied with the notice requirements of the Act, the trial court dismissed the action.

After the dismissal, and almost two and half years after the flood, CPP filed a new notice of claim with the city recorder and commenced a new action against the city in district court. The new complaint alleged both supervisory negligence and direct negligence. The city moved for summary judgment because the notice was filed more than one-year after the flood. CPP argued that the notice was timely under the discovery rule because it was filed within one year of when CPP learned of the facts which formed the basis for its direct negligence claim. The trial court disagreed with CPP and dismissed the complaint. CPP appealed.

The court of appeals affirmed. It held that the discovery rule did not apply to CPP’s claim, because CPP did not need to know about the city’s direct negligence to file a notice of claim. The court explained that the notice of claim did not need to meet the standards required to plead a claim for relief. It only had to inform the government of the nature of the claim, so the government could appraise its potential liability. The court noted that if CPP had filed its first notice with the correct agent, it could have later amended its complaint to include a cause of action for direct negligence.

The court also held that there was nothing exceptional about CPP’s case that warranted tolling the time under the equitable discovery rule. CPP knew from the start that it would have a claim against the city, but simply failed to properly notify the city.

Court adopts federal view of Civ Pro rule 24(a) (Intervention)

Beacham v. Fritzi Realty Corp., 2006 UT App 35

Liberty Mutual, as insurer of Beacham’s employer, sought to intervene in a lawsuit between Beacham and Fritzi regarding injuries Beacham received while delivering a safe to Fritizi’s warehouse. Liberty claimed it had an interest in the lawsuit that could not be adequately protected without intervening. The trial court denied Liberty’s motion to intervene, and Liberty appealed. During the appeal, Beacham and Fritzi settled. The settlement included an amount set aside for Liberty that was equal to its payments to Beacham.

In the court of appeals, the parties’ arguments centered on whether Liberty’s interests were adequately represented by the existing parties. The court of appeals first noted that the question of which party bears the burden of proving inadequate representation had not yet been addressed by Utah courts. It then adopted the federal view of rule 24(a), under which the burden of proof is on the applicant. The burden is minimal, however, and the applicant need only present some evidence that the existing parties may not adequately represent its interests. The court also explained that when the interest of one party and the interest of the applicant are identical, there is a presumption of adequacy. But the presumption may be rebutted upon “a concrete showing of circumstances that make the existing parties representation inadequate.”

The court determined that Liberty’s interest and Beacham’s interest were “generally aligned.” Liberty thus had to provide some evidence why Beacham’s representation was inadequate in light of the settlement that already accounted for Liberty’s interest. Liberty had not provided any evidence of a divergence of interests, so the court of appeals affirmed the trial court.

Road Trip!

Judges Greenwood, McHugh, and Orme are going to St. George for a special session of the court of appeals. The court will hear argument in Strate v. LABC and Ellison v. Stam at 9:30 a.m. in the Washington County Courthouse, 220 North 200 East, courtroom D.

I'm not sure what travel arrangement the judges have made. But if they decide to drive down together, they better make sure they know the rules of calling shotgun.

10th Circuit Summaries

As before, a big thanks to Bonnie Hill for compiling these. I only have time to keep up with state court opinions.

This collection excludes immigration cases. Before each case the subject of the case is printed in all caps. Last time I did this, I inserted links to each case on the court's website. I've decided that's just too time consuming. I love you guys, but I have (or am trying to have) a life. So if you want to read any cases, find them yourself here, or here.

Enjoy.

CRIMINAL LAW & PROCEDURE, CONSTITUTIONAL (SIXTH AMENDMENT)

US v. Batie, No. 04-4299 (10th Cir. January 04, 2006)

After three mistrials on an indictment for armed robbery and brandishing a firearm, the district court dismissed the indictment on the grounds that seventeen-and-a-half months was too long for Batie to wait and violated his Sixth Amendment right to a speedy trial. The dismissal of defendant's indictment was reversed. The court held the district court erred in finding that a fourth trial of defendant would violate his constitutional (Sixth Amendment) rights to a speedy trial and substantive due process. The Court evaluated the four factors used to determine whether Batie’s right to a speedy trial had been violated – the length of delay, the reasons for the delay, whether the defendant protested at the time, and prejudice to the defendant – and concluded that the factors did not weigh in Batie’s favor. Particularly illustrative that defendant’s right to a speedy trial was not violated was the fact that the defendant had requested two continuances before he claimed his right to a speedy trial and later moved for a third continuance over the government's objections. The court explained that dismissal based on delay requires, at a minimum, some intentional and purposeful misconduct by the government. The Court also rejected Batie’s argument that the mistrials prejudiced him by allowing the government’s witnesses to become more polished on the stand. Because the district court did not make any findings regarding changes in the witnesses’ testimony, there was no record support for this argument. Also rejected was the district court’s finding that the evidence against Batie was too sparse to warrant another trial, noting that the decision of whether to prosecute rests within the discretion of the prosecutor, and not the discretion of the court. Thus, the matter was remanded for a new trial.

CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Smith, No. 04-5085 (10th Cir. January 04 2006)

Defendant Smith, a felon in possession of a firearm, claimed his prior conviction for receiving or acquiring the proceeds from illegal drug activity should not have been considered a controlled substance offense and that the district court erred in calculating it as such to determine his sentence for firearm possession. In an opinion affirming the district court, Judge McConnell concluded that Mr. Smith’s admission of receiving the proceeds from a sale of cocaine in a plea colloquy and the charging language in the information demonstrated that Mr. Smith committed a controlled substance offense.

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE

Winsness v. Yocom, No. 04-4275 (10th Cir. January 05, 2006)

Dismissal of an action for a declaratory judgment and injunctive relief asserting that Utah's flag-abuse statute violates the First Amendment is affirmed where plaintiffs lack standing to pursue their claims. Two plaintiffs – a gubernatorial candidate, Larsen, who campaigned by distributing miniature flags with his name on them and Winsness, who was cited for burning a smiley face into a flag, sued for a declaratory judgment that the Utah statute is unconstitutional. They claimed that without an injunction against future prosecution, the very existence of the statute would have a chilling effect on their respective campaign/s and artwork. Winsness lacks standing because charges against him were dropped and the there is no threat of being further injured because the district attorney announced that it will bring no prosecutions under the statute. The deputy who cited Winsness for burning a smiley face into a flag was deemed to have acted independently of the governor, attorney general and county prosecutors. The court held that Larsen, who engaged in activities that he believed violated the law but was not prosecuted, failed to show that the law injured him or that there is an imminent threat that it will injure him, and thus also lacks standing. The Court explained that neither plaintiff alleged an injury in fact sufficient to confer standing for the declaratory and injunctive relief they seek. To have standing, the plaintiffs would have to show a credible threat of future prosecution. Here, however, Utah officials have assured both individuals that they will not be prosecuted under the statute, which is sufficient to defeat standing or at least render the case moot. Although the Court does not discuss attorney fees and implicitly denies them by affirming the district court’s dismissal.

CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Lott, No. 04-6268 (10th Cir. January 05, 2006)

Denial of defendant's motion for substitution of counsel in a prosecution for offenses involving the manufacture and distribution of methamphetamine is affirmed where any constitutional error in denying defendant counsel for an evidentiary hearing was harmless beyond a reasonable doubt, and there was no abuse of discretion in the finding that there was not a complete breakdown in communication. Lott, who manufactured and distributed meth, claimed he was entitled to counsel at an evidentiary hearing to determine whether he had a complete breakdown in communications with his trial attorney. In an opinion written by Judge Murphy, the court held that the evidentiary hearing was part of the larger criminal proceeding, where Lott was represented, and denial of counsel did not result in the loss of any identified right. Also, there is no evidence that the district court would have found a breakdown in communication between Lott and his attorney if Lott had been appointed counsel, and thus any error was harmless.

PUBLIC LANDS, ADMINISTRATIVE LAW & PROCEDURES

UWA v. BLM, Nos. 04-4071 & 04-4073 ( 10th Cir. January 06, 2006)

[Opinion amended on rehearing.] San Juan, Kane, and Garfield Counties claimed they had a legal easement to grade roads on land owned by the Bureau of Land Management. The court held that nothing in the law gave the BLM jurisdiction to make binding determinations regarding rights of way. Remanded for further investigation of historical rights of way.

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING

US v. Angelos, No. 04-4282 (10th Cir. January 09, 2006)

Defendant contended the district court erred in denying his motion to suppress the items seized from the rental house. The court found that the district court did not abuse its discretion when it denied defendant's motion to suppress the items seized from the rental house because although the officers executing the warrant did not act reasonably when they exceeded the scope of the warrant and seized items throughout the house, even if some of the evidence seized from the rental house should have been suppressed, its admission at trial was harmless. Defendant's conviction and sentence for multiple drug, firearms, and money laundering offenses is affirmed over claims of error regarding: 1) denial of a motion to suppress; 2) evidentiary rulings, 3) an Eighth Amendment challenge, and 4) an equal protection claim.

CIVIL PROCEDURE, EMINENT DOMAIN, PROPERTY, RICO & BIVENS CLAIMS

Robbins v. Wilkie, No. 04-8016, (10th Cir. January 10, 2006)

Robbins claimed Wilkie and other Bureau of Land Management employees tried to extort a right-of-way across Robbins property. The court held that under the Fifth Amendment, Robbins has a right to exclude the government from his land unless is exercises its right of eminent domain and thus Wilkie is not entitled to qualified immunity.

CIVIL RIGHTS, CONSTITUTIONAL LAW, GOVERNMENT LAW, LABOR & EMPLOYMENT LAW

Maldonado v. City of Altus, No. 04-6062 (10th Cir. January 11, 2006)

City employees claimed the city's English-only policy created a hostile work environment and violated their civil rights. Summary judgment for defendants, municipality and officials, was reversed as to claims under Title VII alleging disparate-treatment and disparate-impact; intentional discrimination under 42 U.S.C. § 1981 and equal protect claims under civil rights laws, 42 U.S.C. § 1983. Summary judgment in favor of defendants was affirmed on all other claims. Additionally, the court held there were sufficient grounds for Plaintiffs to proceed under their Title VII claims, individual defendants may not be held liable under that statute.

ADMINISTRATIVE LAW, ENVIRONMENTAL LAW, TAX-EXEMPT ORGANIZATIONS

Silverton Snowmobile Club v. US Forest Serv., No. 05-1005 (10th Cir. January 12, 2006)

Order upholding the Forest Service decision to ban snowmobiles on 200 acres around Andrews Lake near Molas Pass was affirmed in an environmental law challenge by plaintiffs, a group of non-profit organizations whose members enjoy engaging in winter motorized activities. Forest Service officials wanted to separate incompatible winter-recreation buffs. A growing number of users and less-than-normal snowfall left them competing for the same playground. The federal agency's action in June 2001 was intended to calm tempers that rose when lack of snow over several winters forced winter recreationalists to compete for less space.

ADMINISTRATIVE LAW, COMMERCIAL LAW, LABOR & EMPLOYMENT LAW, REMEDIES

Nat. Labor Relations Bd. v. Velocity Express, Inc., No. 04-9602 (10th Cir. January 17, 2006)

The NLRB determined that Velocity Express wrongfully discharged the Kirks, two delivery drivers, because of their union activities. NLRB’s order for backpay and reinstatement of the Kirks is enforced in a dispute over the calculation of backpay for employees wrongfully terminated. Velocity argued that the NLRB should have deducted vehicle operating expenses the Kirks would have incurred, had they been employed by Velocity. Rejecting this argument, the NLRB relied on settled law that it does not "deduct from the gross backpay those expenses that employees would have incurred had they not been unlawfully discharged. The court agreed.

ADMINISTRATIVE LAW, ENVIRONMENTAL LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE

Colorado Wild, Inc. v. US Forest Serv., No. 05-1265 (10th Cir. January 18, 2006)

Judgment for agency defendant on plaintiffs-conservation groups' action under the Administrative Procedure Act is affirmed in a challenge to a regulation promulgated by defendant allowing the Shaw Lake salvage timber sale and salvage of dead and/or dying trees on certain land with only a Categorical Exclusion (CE) - the minimal level of environmental analysis required under federal law. Such an analysis often entails only a two-page decision memo, as opposed to a full environmental assessment (EA) or environmental impact statement (EIS). The court concluded the Forest Service did not act arbitrarily when it only reviewed projects with temporary roads to determine the point at which road construction has a significant environmental affect because looking at projects without roads would not have added to determination of whether the roads have an impact. The court found no evidence that the Forest Service acted irrationally or deviated from past practices when it used the mean acreage of forest projects to determine the rule's acreage limit.

ATTORNEY'S FEES, CLASS ACTIONS, DEBT COLLECTION

Robey v. Shapiro, Marianos & Cejda, L.L.C., No. 04-5163 (10th Cir. January 18, 2006)

Dismissal of plaintiff's claims brought under the Fair Debt Collection Practices Act (FDCPA) arising out of a foreclosure action is affirmed where plaintiff failed to state a claim under the FDCPA. Plaintiff claimed that the defendant’s request for “reasonable attorneys fees” in the foreclosure petition was an unfair debt collection practice pursuant to 15 U.S.C. § 1692f(1) because it did not accord with an agreement that defendants would handle the foreclosure action for a flat fee. The court rejected Robey's claim that the request in the foreclosure petition for “reasonable attorney’s fees” was an unfair debt practice and held that Robey had failed to state a claim under the FDCPA.

CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW

Ahmad v. Furlong, No. 04-1450 (10th Cir. January 18, 2006)

District court's ruling that defendants, prison officials, waived their defense of qualified immunity on prisoner plaintiff's claim under the Religious Land Use and Institutionalized Persons Act because they did not raise it as a defense in their Amended Answer is reversed. The court held that not only was defense raised in defendant’s motion for summary judgment, the plaintiff also thought defendants had raised the qualified immunity defense and his response to the motion for summary judgment raised no objection to Appellants' claiming RLUIPA qualified immunity, therefore the district court should have addressed it.

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING

US v. Atencio, No. 04-2325, 05-2022 (10th Cir. January 20, 2006)

The court held that a jury instruction confusing the relationship between the drug quantities described in § 848(b)(2)(A) and the violations that constitute “a continuing criminal enterprise” was an error, but found no prejudice because evidence of the size and scope of the Atencios' drug trafficking activities showed that even using defendant's proposed instructions would not have affected the outcome. Defendants' sentence for conspiracy to possess with intent to distribute cocaine is vacated pursuant to a claim that their sentences for conspiracy violated their rights under the Double Jeopardy Clause since conspiracy is a lesser included offense of a continuing criminal enterprise. The court affirmed the Atencios' convictions under the CCE (Continuing Criminal Enterprise) statute and remanded the case to the district court with instructions to vacate their concurrent sentences for conspiracy.

HABEAS CORPUS, STATUTES, ATTORNEY’S FEES

Hain v. Mullin, No. 05-5039 (10th Cir. January 23, 2006)

The court granted an “en banc” hearing to determine if attorneys fees would be covered for defending indigent defendants seeking federal habeas relief in state clemency hearings. Attorneys Jackson and Presson claimed they were entitled to federal funding for representing Hain, who was executed by the state, during state clemency hearings. The court found that under the plain language of the statute (21 U.S.C. § 848(q)(4)(B)) directions that counsel must represent a defendant through all proceedings, including clemency, must apply to state clemency hearings because the federal government does not have the power to pardon defendants convicted in state courts. Reversed.

CRIMINAL LAW & PROCEDURE, EVIDENCE, HABEAS CORPUS, SENTENCING

Hamilton v. Mullin, No. 04-5067 (10th Cir. January 24, 2006)

Denial of habeas relief from defendant's conviction for murder and the death penalty is affirmed over claims of error regarding: 1) prosecutorial misconduct; 2) exclusion of certain testimony and jury instructions; 3) jury instruction; 4) insufficiency of the evidence; and 5) cumulative error. The court found that the alleged prosecutorial misconduct, prosecutor’s “rhetorical flourish” at closing, was of minimal influence on the jury when compared to the physical evidence and testimony describing the quadruple homicide. Likewise the omission of the victim impact instruction was also minimal in the context of all the instructions given as a whole. The court concluded the weight of all of the alleged errors did not deprive Hamilton of a fair trial and that defendant failed to establish that individual harmless errors should collectively justify habeas relief.

ATTORNEY'S FEES, CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE

Robbins v. Chronister, No. 02-3115 (10th Cir. January 25, 2006)
Attorney's fee award for plaintiff following an award of nominal damages of one dollar in a civil rights claim under 42 U.S.C. section 1983 against defendant, a police officer, is reversed where the district court erred in failing to apply the Prison Litigation Reform Act's attorney's fee award limit of 150% of the money judgment. Chronister, a police officer, claimed attorney fee limitations for civil suits filed by prisoners should apply to Robbins' excessive force suit against him even though the incident occurred prior to Robbins incarceration. Using the plain language of the law, which limits fees for all civil rights cases filed by prisoners, because prisoners have time to pursue their claims, do not need money for their necessities, and are entitled to free legal assistance, the court applied the PLRA cap altering the original award for $9,680 in fees and $915.16 in expenses to $1.50. Reversed.

CIVIL PROCEDURE, CONSTITUTIONAL LAW, GOVERNMENT LAW

Brereton v. Bountiful City Corp., No. 05-4067 (10th Cir. January 26, 2006)

Dismissal with prejudice of plaintiff's challenge to a parking ordinance involving advertisement or sale of cars as an unconstitutional infringement on his right to free speech is modified to a dismissal without prejudice where plaintiff's failure to show that his complaint could be amended to establish standing did not justify the entry of a dismissal with prejudice of the action. “The district court extended the futility principle too far in this case by dismissing with prejudice for lack of standing, since it lacked jurisdiction to make a determination on the merits of the complaint.” Remanded for modification of dismissal to “without prejudice.”

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING

US v. Robinson, No. 04-7052 (10th Cir. January 26, 2006)

Appellant Robinson argued that the jury instructions were misleading in their definition of what constitutes a "substantial step" towards the attempted manufacture of methamphetamine, and that the language "possession in furtherance of" for the purposes of the firearms charges must be defined for the jury to apply them intelligently. He also argued that the evidence was insufficient to convict him of one count of the firearms charge. Finally, Robinson contended that he must be resentenced under United States v. Booker, 540 U.S. 220 (2005). Convictions for attempted manufacture of methamphetamine and possession of a firearm in furtherance of a drug trafficking offense were affirmed where none of the challenged jury instructions were deemed misleading, and the evidence was found sufficient to support the challenged firearm conviction. Appellant’s sentence was vacated pursuant to Booker and remanded, because the Government conceded that the district court's application of the U. S. Sentencing Guidelines in a mandatory fashion warranted resentencing.

CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE

Fogle v. Colorado Dep't of Corr., No. 05-1405 (10th Cir. January 27, 2006)

Dismissal of inmate-plaintiff's 42 U.S.C. section 1983 complaint alleging various civil rights violations committed by defendant, department of corrections, is reversed in part as to claims that were deemed to have an arguable basis in law or fact. The court held that district court’s dismissal of all claims as frivolous was an error. Appellant’s claims that survived are: his claim of the lack of due process afforded him regarding administrative segregation; his claim of retaliation for exercising his First Amendment rights; his claim of being denied “Christian fellowship” , his claim of being denied access to the law library and that claims were held by the district court as barred by the statute of limitations.

CRIMINAL LAW & PROCEDURE, EVIDENCE

US v. Green, No. 05-5053 (10th Cir. January 27, 2006)

Defendant's conviction on drug and firearm offenses is affirmed over his claims of error regarding: 1) improper denial of a motion to suppress evidence regarding a confidential informant; 2) composition of the jury pool – that those drivers who live outside of Tulsa county, but do not vote were excluded; 3) jury instructions – instructions were disjunctive while charges in the indictment were listed in the conjunctive; and 4) sufficiency of the evidence on the possession of an unregistered sawed-off shotgun - Defendant alleged that it was not proved that he knew the length of the gun’s barrel.

CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Westover, No. 03-3287, (10th Cir. January 30, 2006)

Westover was convicted by a jury of violating 18 U.S.C. § 1001, making false statements regarding matters under the jurisdiction of a federal agency, by embezzling government funds in conjunction with his receipt of public housing assistance and food stamps. “The district judge imposed a sentence which exceeded that supported by the facts found by the jury or admitted by the defendant.”Defendant mounted a Booker challenge which was denied. The court held that “sentencing error in this case did not seriously affect the fairness, integrity or public reputation of judicial proceedings.” Affirmed.

CRIMINAL LAW & PROCEDURE, INDIAN LAW, SENTENCING

U.S. v. Wolfe, No. 04-2114, (10th Cir. January 31, 2006)Defendant-Appellant, the driver in a fatal automobile accident on an Indian reservation, pled guilty to two counts of involuntary manslaughter. Defendant appealed her sentence, challenging the district court's decision to depart upward from the then-mandatory sentencing guideline range. The court held that the district court impermissibly double-counted facts and failed to explain the degree of upward departure adequately. On remand the court directed that resentencing should follow the new discretionary guidelines sentencing regime established by Booker. Reversed and Remanded

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING, TAX

U.S. v. Crockett, No.04-4204, (10th Cir. January 31, 2006)

Defendant , a promoter of trust schemes, was charged in a four-count indictment with one count of conspiring to defraud the IRS, in violation of 18 U.S.C. § 371, and three counts of aiding and assisting in the preparation of false and fraudulent tax returns, in violation of 26 U.S.C. § 7206(2). A jury found him guilty on all four counts. Defendant argued that his conviction should be vacated because: (1) He was not allowed to cross examine one of the prosecution’s witnesses – Defendant failed to show that the proposed line of questioning would have cleared him; (2) District court’s refusal to give jury instructions regarding grantor trust provisions of the Internal Revenue Code –Court held that factual evidence presented at trial did not provide an evidentiary foundation for the instruction.; (3) Prosecutor presented perjured testimony to the grand jury - Defendant failed to show the testimony was false; (4) The cumulative effect of individual harmless errors denied Defendant a fair trial - Court found neither error nor harmless error and refused a cumulative analysis; (5) Sentencing him in accordance with Federal Sentencing Guidelines was illegal and violated his constitutional rights - The government suggested and the court agreed that Defendant's sentence should be vacated and the case remanded for resentencing pursuant to Booker. Affirmed on all issues; remanded for resentencing.

True grit

The supreme court held its February arguments last week with four sitting justices and the disembodied voice of Associate Chief Justice Durrant.

Chief Justice Durham explained before each argument that the Associate Chief Justice was on bed rest with pneumonia and was participating via speakerphone.

Also recovering from pneumonia was the assistant attorney general who argued in State v. Bradshaw on Wednesday.

Provision of restrictive covenants that allows amendment in whole or part by majority vote permits termination of covenants

Swenson v. Erickson, 2006 UT App 34

Erikson wanted to build a shed on his property in a Sandy subdivision (Quail Point). Swenson sued to block construction because the structure violated the subdivision’s restrictive covenants. So Erikson and a majority of the residents voted to terminate the covenants. Swenson claimed the covenants did not permit termination, only amendment. The court of appeals interpreted the following provision to mean that the covenants could be terminated:

These covenants are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 1994, at which time said covenants shall be automatically extended for successive periods of 10 years unless by vote of a majority of the then owners of the building sites covered by these covenants it is agreed to change said covenants in whole or part.

I also liked this quote from Dansie v. Hi-Country Estates Homeowners Ass'n, 1999 UT 62,¶14, 987 P.2d 30:

Restrictive covenants are not favored in the law and are strictly construed in favor of the free and unrestricted use of property.

If you ask me, when it comes to restrictive covenants, the less restrictive, the better.

Motion for summary judgment must be supported by affidavits

Macris v. Neways, Inc., 2006 UT App 33

Macris appealed the denial of its motion to compel discovery and a grant of summary judgment against it. The court of appeals reversed the district court on both issues. It held that Macris’ interrogatories were relevant to its claim of attorneys fees. It also held that Neways could not file a summary judgment motion based on a lack of evidence to support Macris’ claim. The court followed the lead of the Utah Supreme Court in rejecting the federal interpretation of rule 56 in Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Instead, it held that the moving party had attach its own affidavits to prove that the facts were undisputed.

The court of appeals issued several unpublished opinions on Thursday and two published opinions. I'll get summaries of the published opinions up later today, I hope. The unpublished opinions are:

Bevans v. Boyce (trust deeds)

Ogden City v. Edwards (criminal procedure)

State v. Galvan (criminal sentencing)

J.D. v. State (In re J.D., et al.) (parental rights termination)

State v. Lebow (criminal/appellate procedure)

State v. Lizarraga (ineffective assistance of counsel)

Ogden City v. Upshaw (criminal/appellate procedure)

I put in a lot of overtime this week, so blogging has been light. The extra workload came in part from a new practice by our supreme court of suspending rule 26(a) in cert cases. I had a brief due yesterday that I foolishly delayed, so I was forced to work late every night this week to get it done.

If you haven't had a case on cert in a while, be aware that the court is sticking to its briefing schedule. When the court grants cert, it will also issue an order suspending the provision for stipulated extensions in rule 26(a). The order will also state that no extensions will be granted to file briefs absent extrodinary circumstances.

FYI: A brief is timely filed if it is put in the mail on the day it is due. So if you miss filing your brief before the court closes, you have until midnight to take it to the airport post office and mail it to the court.