How Do You Like Them Appellates?

tag:blogger.com,1999:blog-194898062011-04-21T16:25:01.587-06:00How Do You Like Them Appellates?Case summaries and news from Utah's appellate courts.Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.comBlogger1081100tag:blogger.com,1999:blog-19489806.post-1148578870513898152006-05-25T11:38:00.000-06:002006-05-25T11:41:11.176-06:00Sexually abused child cannot be called "the victim"

State v. Devey, 2006 UT App 219According to the court of appeals, when a defendant claims that no crime was committed, as in a rape case where the rapist claims it was consensual or that there was no intercourse, the State cannot refer to the complaining witness as "the victim." It violates the defendant's right to a presumption of innocence.Baloney.The State is entitled to present a theory of

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1148318724671869002006-05-22T10:47:00.000-06:002006-05-22T11:25:42.563-06:00Brigham City v. Stuart rev'd 9-0 by Supreme Court

Brigham City V. Stuart, 547 U.S. ___ (2006)The U.S. Supreme Court reversed the Utah Supreme Court in a 9-0 decision in the Brigham City case. The Court's opinion, Chief Justice Roberts writing, is short and very straightforward: The test for reasonableness under the Fourth Amendment is an objective one. "An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1147796209893017832006-05-16T09:30:00.000-06:002006-05-16T18:02:38.186-06:00Polygamous or plural marriages are forever prohibited

State v. Holm, 2006 UT 31The Utah Supreme Court affirmed Rodney Holm's convictions for bigamy and unlawful sexual activity with a minor. The opinion is eighty-five pages with a dissent from Durham and a concurrence, responding to Durham's dissent, from Nehring. Durrant wrote with Wilkins and Parrish joining.In brief, the majority held the following:(1) The term marry in the phrase "purports to

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1147733722357298072006-05-15T16:31:00.000-06:002006-05-15T16:55:22.636-06:00CoA affirms domestic violence conviction

This was a train wreck of a domestic violence trial that ended up being a fairly straight forward appeal.State v. Atkin, 2006 UT App 155For five hours early Sunday morning, Atkin beat and terrorized his girlfriend in her apartment. He ripped the phone out of the wall when she tried to call for help and later forced her to drive him home from Brigham City to Logan. Atkin's girlfriend managed to

I'm not sure why this opinion was published, as it does not seem to resolve any important legal issues.Loose v. State, 2006 UT App 149Loose was convicted of sexually abusing his step-daughter. On direct appeal, the Utah Supreme Court affirmed his convictions over evidentiary challenges and a claim of newly discovered evidence. Loose then filed a post-conviction petition that ultimately resulted

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1147724702042768542006-05-15T14:06:00.000-06:002006-05-15T14:25:02.460-06:00Supreme court will issue polygamy decision tomorrow

The Utah Supreme Court is going to issue its opinion in State v. Holm tomorrow. Holm is a practicing polygamist and was cop. He was convicted of unlawful sexual activity with a 16 or 17 year old for marrying and cohabitating with a 16 year-old girl. The case was argued in February 2005.Holm has challenged the constitutionality of Utah's bigamy laws, and, unlike the Green case, his challenges are

Two amendments to the Utah Rules of Appellate Procedure have been proposed:URAP 04. Appeal as of right: when taken. Amend. Creates a procedure to implement the directive in State v. Manning, 2005 UT 61, 122 P.3d 628, allowing a criminal defendant to have appeal rights reinstated, when the defendant has been deprived of the an appeal.URAP 24. Briefs. Amend. Clarifies the briefs that are to be

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1145764255584513342006-04-22T21:39:00.000-06:002006-04-22T21:50:55.670-06:00It's ok to eliminate all reasonable doubt

State v. Halls, 2006 UT App 142In State v. Reyes, 2005 UT 33, the supreme court threw out the requirement from State v. Robertson, 932 P.2d 1219 (Utah 1997), that a reasonable doubt jury instruction require the prosecution to "obviate all reasonable doubt."Halls had a jury instruction that required the prosecution to "eliminate all reasonable doubt." He complained that the instruction was

Bluemel v. State, 2006 UT App 141Blumel pled guilty to having sex with her fourteen year-old foster son. She pled guilty and got sentenced to three concurrent prison terms of five years to life. She allegedly asked her attorney to file an appeal, but no appeal was filed. More than two years after sentencing, Bluemel got a new attorney and filed a post-conviction petition.The State moved to

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1145761416794675642006-04-22T20:58:00.000-06:002006-04-22T21:03:38.206-06:00City attorneys, read the traffic code

Orem City v. Martineau, 2006 UT App 136Martineau was caught crossing the “gore,” i.e. the painted area separating the freeway and the freeway off-ramp. Orem City charged first Martineau with improper lane use. Then, just before trial, the City amended the charge to failure to obey a traffic device. The trial judge convicted him in a bench trial of the second offense.Unfortunately for Orem City,

Jeff Gray is the AAG who will argue the Brigham City case in the U.S. Supreme Court in two weeks, on April 24th. His reply brief is due this Wednesday.I caught him leaving work early today at 2:30 to go to his son's little league game. I believe he attends all of his son's games.In twenty years, his son may or may not remember that his dad argued in the U.S. Supreme Court, but I'm sure he will

Mark Duane Workman was my upstairs neighbor when I lived in Murray. I would never have pegged him for a car theif, or a stolen car reciever.State v. Workman, 2006 UT App 116Venue was proper in Utah county for Workman's theft by recieving conviction, even though Workman lived in Salt Lake County and the stolen item, a 1998 Mitsubishi Mirage, was stolen in Salt Lake County. The car was found by

Even though this case is really about summary judgment, I'm going to file it under Creditors and Debtors, cause this debtor deserves some attention for his creativity.Granite Credit Union v. Remick, 2006 UT App 115Remick got a loan from Granite secured by a 1997 Plymouth Voyager. When the loan became delinquent, Granite tried to repossess it. Before Granite could find the van, Remick had his

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1144424785684699242006-04-07T09:21:00.000-06:002006-04-07T09:48:06.336-06:00No standing to challenge sodomy and fornication laws.

Everybody knows that Utah’s sodomy and fornication statutes are unenforceable against consenting adults. But for some reason, Brian Barnard feels like he needs to challenge them anyway.D.A.R. v. State, 2006 UT App 114D.A.R sought an injunction preventing the State from enforcing its sodomy and fornication laws. He claimed that he had engaged in “private, noncommercial, consensual oral sex and

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143957547417248962006-04-01T22:50:00.000-07:002006-04-01T22:59:07.700-07:00Court’s memorandum decision, not its subsequent order, was final judgment for purposes of appeal

To appeal a district order, one must file a notice of appeal with thirty days of the final judgment. The thirty-day period is jurisdictional, and appeals are often dismissed for lack of jurisdiction on the ground that the notice of appeal was filed late. Sometimes a notice is late because a party chooses not to appeal and then gets buyer’s remorse. But often, the notice of appeal is late because

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143872247628876572006-03-31T23:12:00.000-07:002006-03-31T23:17:27.923-07:00CoA reverses grant of summary judgment in railroad asbestos case

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

Looking for a law blog on a particular subject or jurisdiction? Check out "A Taxonomy of Legal Blogs" over at 3L Epiphany. He lists HDYLTA and State of the Beehive under the Utah category of State Blogs.Hat tip: Charlie FosterAlso, check out Blog Fantasy Trading. It's a fantasy stock market for blogs where value is determined by incoming links. Sadly, this poor blog isn't worth much. But Ethan

The court of appeals and supreme court have started live streaming oral arguments.Supreme court streaming audioCourt of appeals streaming audioThe supreme court has actually been streaming successfully for a couple of months now, but hasn't publicized it. The supremes have also posted archives of old arguments back to February of 2004.The court of appeals tried unsuccessfully to stream for the

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143560089366900252006-03-28T08:13:00.000-07:002006-03-28T08:34:50.333-07:00Some road in the middle of nowhere in Tooele County is a public road

State v. Six Mile Ranch Co., 2006 UT App 104The defendants petitioned the county to abandon a road on Stansbury Island. The county granted the petition, but failed to send written notice to the State, which owned property that abutted the road. The State filed suit to have the abandonment nullified.The trial court granted summary judgment to the State, ruling that the road was a public

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143556199615297172006-03-28T07:29:00.000-07:002006-03-28T07:30:00.180-07:00Counsel need not second guess client’s decision not to appeal

Schultz v. State, 2006 UT App 105Once a client says he does not want to appeal an adverse ruling, his attorney has no duty to file a notice of appeal or even to check back with the client to make sure he hasn’t changed his mind.The client in this case was mentally impaired, but found competent to stand trial. He later claimed that his attorney never explained his right to appeal. The attorney

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143212000864972392006-03-24T07:52:00.000-07:002006-03-24T07:53:20.960-07:00UDOT’s use of orange barrels during construction rather than concrete barriers was not a discretionary function

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143177556549174622006-03-23T22:00:00.000-07:002006-03-23T22:19:21.833-07:00Consumption of drugs does not include metabolizing

State v. Ireland, 2006 UT 17Utah’s drug possession statute defines “possession” as “ownership, control, occupancy, holding, retaining, belonging, maintaining, or the application, swallowing, injection, or consumption . . . of controlled substances.” The State charged Jeffery Ireland with unlawful possession or use of meth and marijuana because his blood tested positive for those substances. The

The High Court's latest search case, Georgia v. Randolph, portends well for the State in Brigham City v. Stuart. Randolph holds that a physically present co-tenant may override another co-tenant's consent to a warrantless search. The dissent raised concerns about the effect of this decision on domestic violence prevention. The majority countered:No question has been raised, or reasonably could be

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142918433779839272006-03-20T22:04:00.000-07:002006-03-20T22:20:33.940-07:00Appellate practice luncheon at the bar

The Appellate Practice and Litigation sections of the bar are sponsoring a luncheon with a panel discussion by judges and staff from the court:"BEHIND-THE-SCENES AT THE APPELLATE COURTS"Panel discussion pitched at all levels of appellate experience on the behind-the-scenes operation of Utah's appellate courts. Topics will include the following: scope of staff attorneys' work; decision-making

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142917328938786802006-03-20T21:52:00.000-07:002006-03-20T22:02:09.100-07:00District court may not enter damages judgment for underlying claim at contempt hearing

Homeyer v. Stagg & Assoc., 2006 UT App 89Homeyer violated a court order and was held in contempt. At the contempt hearing, Judge Lewis took evidence regarding the underlying claims. At the conclusion of the hearing, she held Homeyer in contempt, put him in jail for thirty days, and entered a final judgment for damages against Homeyer in the underlying suit.The court of appeals affirmed his

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142916118176665952006-03-20T21:27:00.000-07:002006-03-20T21:41:58.493-07:00Doctor cannot hide behind physician-patient privilege to avoid insurance fraud investigation

Burns v. The Honorable Ann Boyden, 2006 UT 14This opinion is classic Durrant: clear and logical. I think he's arguably the best writer on the court. The first paragraph in the opinion pretty much sums the whole thing up:This case presents two distinct issues: (1) whether Dr. Brian D. Burns may claim the physician-patient privilege as a shield against a state investigation into his allegedly

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142659036423925422006-03-17T22:05:00.000-07:002007-02-18T10:38:15.850-07:00Creditors and Debtors

Granite Credit Union v. Remick, 2006 UT App 115Remick got a loan from Granite secured by a 1997 Plymouth Voyager. When the loan became delinquent, Granite tried to repossess it. Before Granite could find the van, Remick had his towing company impound the van. He then sent Granite a bill for $1682 for towing costs and storage.Granite ultimately prevailed on a summary judgment motion becuase

I am horribly behind on getting case summaries out. For this I apologize. My biggest fear when I started this blog was that I would not be able to keep up with the workload. A recent spat of supplemental briefing in the supreme court and a week long trial ad conference have put me way behind both at work and with HDYLTA.But I will get caught up, even if it means skipping Lost next week.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142221107955672962006-03-12T20:33:00.000-07:002006-03-12T20:38:28.063-07:00Amendment to appellate rules

In case you missed it, effective April 1, 2006, rule 24 will include more detailed procedures for filing an overlength brief. Here's the new procedures:(h) Permission for over length brief. While such motions are disfavored, the court for good cause shown may upon motion permit a party to file a brief that exceeds the limitations of this rule. The motion shall state with specificity the issues

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142220077811946812006-03-12T20:11:00.000-07:002006-03-12T20:21:24.206-07:00Eyewitness’s subjective certainty of identification is admissible

State v. Guzman, 2006 UT 12Guzman was the primary participant in a brutal home invasion. The victim identified him in a photo array and a line-up and said she was 100 % certain he was the guy. She was allowed to testify about her certainty at trial, and Guzman was convicted. He claimed on appeal that admitting evidence of an eyewitness’s subjective certainty of identification violates the Due

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142096586340937052006-03-11T10:02:00.000-07:002006-05-18T19:01:14.103-06:00Juvenile Delinquency

D.T. v. State (In re D.T.), 2006 UT App 132D.T. challenged the sufficiency of the evidence in his adjudication for sexual abuse of a child. He was alleged to have fingered a girl in a hot tub at the Ogden Athletic Club. The juvenile court noted that "[b]asically this [case] is her testimony against his" and that "it would look to the surrounding circumstances and what the other witnesses and

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1141881919025246042006-03-08T22:20:00.000-07:002006-03-08T22:25:19.376-07:00Court properly allowed mother-witness to sit behind testifying child-victim

State v. Billsie, 2006 UT 13.In a child sex abuse trial, the judge permitted the child-victim to testify with her mother sitting behind her. The mother was also a witness in the trial. Billsie was convicted and claimed on appeal that the court abused its discretion in allowing the mother to remain and to sit behind the child.In a bizarre 1-1-1 split, the court of appeals affirmed. One judge

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1141693337965603402006-03-06T17:46:00.000-07:002006-03-06T18:02:18.126-07:00Every attorney needs good evidence

With the first case of the year construing one of the rules of evidence, the Topical Archive now has an Evidence area. I hope everybody reads it.When I went to law school, neither of Utah's law schools required students to take evidence. That is lame. Every attorney should be familiar with the rules of evidence. Because whatever an attorney is doing, he has to look forward to what will happen if

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.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1141016795801199402006-02-26T21:51:00.000-07:002006-02-26T22:06:36.116-07:00Timing of rule 59(e) and rule 60(b) motions is jurisdictional

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1140843787221411132006-02-24T21:38:00.000-07:002006-02-24T22:03:07.283-07:00Judges do not get to engage in civil disobedience

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1140842190510450252006-02-24T21:23:00.000-07:002006-02-25T17:55:06.616-07:00This case really doesn't matter, unless you are Michael Martinez

State v. Martinez, 2006 UT App 76Martinez 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com1tag:blogger.com,1999:blog-19489806.post-1140840355238151892006-02-24T20:56:00.000-07:002006-02-25T09:25:15.970-07:00Utah decides that Crawford v. Washington did not overrule Maryland v. Craig

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com1tag:blogger.com,1999:blog-19489806.post-1140808718136051702006-02-24T12:00:00.000-07:002006-02-25T16:49:49.536-07:00Drunk driver in fatal crash may not be convicted of both automobile homicide and DUI

State v. Perez-Avila, 2006 UT App 71The 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com1tag:blogger.com,1999:blog-19489806.post-1140651725693732592006-02-22T16:34:00.000-07:002006-02-22T16:42:06.040-07:00Brigham 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.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1140452527951847652006-02-20T09:00:00.000-07:002006-02-20T09:28:39.623-07:00Seat 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1140283587738060772006-02-18T10:03:00.000-07:002006-02-18T10:26:42.106-07:00Discovery 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1140244652731173192006-02-17T23:23:00.000-07:002006-02-20T16:49:32.180-07:00UTA off the hook for bicycle accident on railroad tracks

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com1tag:blogger.com,1999:blog-19489806.post-1140242784549273422006-02-17T23:05:00.000-07:002006-02-17T23:12:28.566-07:00Court of appeals reverses murder conviction for failure to give adequate notice of intent to use expert witness

State v. Torres-Garcia, 2006 UT App 45After 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1140220152698850452006-02-17T16:37:00.000-07:002006-02-17T16:49:12.806-07:00One 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1140219411408277442006-02-17T13:31:00.000-07:002006-02-18T21:50:48.526-07:00Court 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1140196418610334122006-02-17T10:09:00.000-07:002006-02-17T10:13:38.963-07:00State 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 9The 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. §

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 CourtUPEA v. StateCourt of AppealsAurora Credit Services v. Liberty West DevelopmentFordham v. OldroydState v. Torres-GarciaUtah Transit Authority v. Salt Lake City Southern Railroad Company,

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1139941999680193632006-02-14T11:33:00.000-07:002006-02-14T11:33:20.016-07:00The 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.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1139638201436892562006-02-10T23:04:00.000-07:002006-02-10T23:10:01.450-07:00Single email held insufficient to give Utah personal jurisdiction over spammer

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1139546400760264672006-02-09T21:14:00.000-07:002006-02-09T21:40:00.780-07:00Unpublished 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1139544721625001802006-02-09T21:06:00.000-07:002006-02-09T21:12:01.626-07:00Time 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 36Cedar 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1139543959183509772006-02-09T20:49:00.000-07:002006-02-09T20:59:19.196-07:00Court adopts federal view of Civ Pro rule 24(a) (Intervention)

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

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1139460863879457272006-02-08T21:37:00.000-07:002006-02-08T21:54:23.906-07:0010th 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

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1139114353239888282006-02-04T21:33:00.000-07:002006-02-04T21:39:13.240-07:00Provision of restrictive covenants that allows amendment in whole or part by majority vote permits termination of covenants

Swenson v. Erickson, 2006 UT App 34Erikson 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1139113821514357162006-02-04T21:24:00.000-07:002006-02-04T21:30:21.526-07:00Motion for summary judgment must be supported by affidavits

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

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/

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1138412561627769102006-01-27T18:32:00.000-07:002006-01-27T21:52:57.056-07:00Imposition of sentence means announcement of sentence

State v. Todd, 2006 UT 7If you practice criminal law, pay attention.Under rule 24, Utah Rules of Appellate Procedure, the ten-day window to file a motion for a new trial runs from "imposition of sentence." The court of appeals construed that phrase to mean when the district court enters a signed written sentencing order. In other words, entry of judgment The supreme court disagreed and said that

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1138304788959227052006-01-26T12:38:00.000-07:002006-01-26T12:46:28.970-07:00NO published decisions from the court of appeals today

Just a few unpublished memorandum decisions:Bacon v. Jorgensen (parole revocation) State v. Gardner (sufficiency of record for appeal) State v. Pyne (probation revocation) State v. Pyne (probation revocation)Stone v. Stone (untimely notice of appeal in divorce appeal)

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1138161435530019002006-01-24T20:14:00.000-07:002006-01-24T20:57:15.583-07:00Tax Commission misapplied equitable tolling doctrine

Beaver County v. Property Tax Division and Pacificorp, 2006 UT 6The supreme court refused to toll the five-year lookback period for escaped property taxes under Utah Code Ann. s 59-2-217(1). If you don't know what that means, you should only read on if you are really interested in equitable tolling.Pacificorp paid a $2.6 billion property tax assessment in 1997. In 2000, the PropertyTax Division

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1138132422112725452006-01-24T12:39:00.000-07:002006-01-24T12:53:42.123-07:00Poll: Who is Utah's Funniest Judge?

An anonymous comment to my post on lunch with Judge McHugh expressed skepticism that Judge McHugh could be funnier than Judge Orme. He (or she) suggested a poll to determine the funniest appellate judge.There are only 12 state appellate judges. So how about a poll of the funniest judge in Utah---appellate, district, or juvenile. Who is the funniest judge on the bench and why?

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1138087140933869262006-01-23T23:41:00.000-07:002006-01-29T22:58:20.316-07:00The Topical Case Archive

I have added a topical case archive to the sidebar of the blog. So you understand how the archive works, and why my recent posts look like repeats of earlier posts, I'm going to explain what I've done.I'm not very html-savvy. So when I decided to try to create a topical case archive, I decided to think simple and use the existing tools provided by Blogger. So what I've done is created a post for

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com2tag:blogger.com,1999:blog-19489806.post-1138083913466106192006-01-23T23:19:00.000-07:002006-04-01T23:04:36.093-07:00Appellate Procedure

Code v. Utah Dep’t of Health, 2006 UT App 113On January 10, 2005, the trial court dismissed Code’s complaint with prejudice in a signed memorandum decision. At the end of the decision, the court stated, “For the reasons stated above, the Court dismisses Plaintiff’s claim.” Sounds final right. The court of appeals thought so. It dismissed Code’s appeal because notice of appeal was not filed until

State v. Nieberger, 2006 UT App 5State v. Draper, 2006 UT App 6Both cases involve challenges under the child endangerment statute (76-5-112.5). Nieberger upholds the constitutionality of the statute against a vagueness challenge and affirms the trial courts bindover order. Draper reverses the trial court’s bindover order.Both Nieberger and Draper are mothers who were busted for exposing their

Utah Transit Authority v. Salt Lake City So. R.R. Co., Inc, 2006 UT App 46Some 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

S.C. v. State (In re O.C), 2005 UT App 563.The court of appeals upheld a juvenile court decision to remove a child from its prospective adoptive mother's custody. The juvenile court found that the mother had neglected one of her other children (she allowed one of her children to be abused by her husband and did not seek prompt medical treatment). It thus ruled that O.C. was a neglected child who

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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1138081770896503202006-01-23T22:46:00.000-07:002006-05-25T11:45:04.816-06:00Criminal Procedure

D.A.R. v. State, 2006 UT App 114D.A.R sought an injunction preventing the State from enforcing its sodomy and fornication laws. He claimed that he had engaged in “private, noncommercial, consensual oral sex and sexual intercourse with an unmarried woman” and that he intends to continue to have sex with unmarried women and “fears future criminal prosecution.”The court threw out his suit on

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1138081143926464342006-01-23T22:28:00.000-07:002006-03-28T08:37:46.506-07:00Land Use Decisions

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1137978923071002732006-01-22T16:55:00.000-07:002006-01-22T18:15:23.113-07:00What makes a good legislator?

Justin and Justin have come to Neal Hendrickson's defense. They point out that voters shouldn't (and usually don't) evaluate a legislator based on the bills he or she sponsors.Good point. Thank you.I meant no disrespect to Representative Hendrickson. I only moved into his district a month ago and hardly know the man. I just found it odd that, at the time of my earlier post, he was the only

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1137814613146592822006-01-20T20:25:00.000-07:002006-01-20T20:36:53.156-07:00Neal Hendrickson update

Tell the search parties to go home. Neal stopped in at Leg Counsel and requested a bill.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1137812903453672962006-01-20T20:06:00.000-07:002006-01-20T20:08:23.453-07:00Topical Archive Help

My brother-in-law is in law school in Boulder, CO. He suggested I archive my case summaries by topic rather than date.That's a great idea. Does anybody know how?

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com2tag:blogger.com,1999:blog-19489806.post-1137811914209198802006-01-20T17:53:00.000-07:002006-01-20T20:49:38.640-07:00Lunch with Judge McHugh

Today was the bar luncheon with Judge McHugh. For those who couldn’t make it, here’s what you missed:Good food. I mean much better food than you normally see at a bar sponsored luncheon.Judge McHugh is funny. Maybe funnier than Judge Orme.She works very hard.She hasn’t had a lot of experience in Utah’s appellate courts. She admitted it. But it also showed in some of her answers to questions about

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com3tag:blogger.com,1999:blog-19489806.post-1137745202544374822006-01-20T01:10:00.000-07:002006-01-20T01:20:02.543-07:00Has anybody seen Neal Hendrickson at the capitol?

My representative is Neal Hendrickson. He has not yet sponsored or co-sponsored any legislation. There are currently 303 numbered house bills and 161 numbered sente bills. Neal's name isn't on any of them.So, I'm just wondering if he's up there. If he is, and you see him, tell him to start legislating.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com4tag:blogger.com,1999:blog-19489806.post-1137744548725868402006-01-20T00:51:00.000-07:002006-01-20T01:09:11.026-07:00

Blogging has been nonexistent the last few days. Mainly because the courts didn't issue any published decisions week. The court of appeals is releasing some unpublished decisions today, but unpublished decisions usually aren't worth blogging. If the court's not going to publish them, why should I?Actually, I do try to skim over them. If I ever find anything interesting I'll blog it.I have

Chief Justice Durham's 2006 State of the Judiciary address is now online.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1137212809653724262006-01-13T21:16:00.000-07:002006-01-23T23:40:14.270-07:00A trio of decisions on preserving claims for appeal

State v. King, 2006 UT 3State v. Winfield, 2006 UT 4State v. Lee, 2006 UT 5These cases were argued together, were all written by Justice Parrish, and were all released together today. They each consider proper standard of review when a party fails to object to a juror during voir dire. Lee further considers an unpreserved merger claim. Winfield also considers an unpreserved claim of insufficient

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1137135591807167372006-01-12T23:19:00.000-07:002006-01-13T21:28:53.783-07:00'Lori's Law' (H.B. 102) is a good idea, sort of

The amendment to the sentence for murder in H.B. 102 is long overdue. But the bill's amendment to the predicate offense list is problematic.Murder is a first degree felony punishable by five years to life in prison. Aggravated kidnapping is also a first degree felony punishable by 6, 10, or 15 years to life in prison, depending on the nature of the crime.This has long baffled me. If I force you

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com2tag:blogger.com,1999:blog-19489806.post-1137133100114609842006-01-12T23:10:00.000-07:002006-01-13T21:16:20.746-07:00Don't leave your bong where your kids can get it

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1137132584023512742006-01-12T22:58:00.000-07:002006-01-12T23:09:44.060-07:00Inaccuracy in PSI irrelevant if conviction carries mandatory prison term

State v. Johnson, 2006 UT App 3The court of appeals affirmed Johnson’s sentence over his claims that the trial court failed to resolve a factual dispute in his presentence report (“PSI”).Johnson pleaded guilty to two attempted child sex offenses. One of them carried a mandatory prison term. At sentencing, he contested the accuracy of a 1978 lewdness charge in his PSI. Johnson claimed the charge

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1136950799708787462006-01-10T20:28:00.000-07:002006-01-11T00:20:19.136-07:00Supreme Court defers to Legislature

If there is such a thing as "land use junkies," they are probably giddy at the release of B.A.M. v. Salt Lake County, 2006 UT 2. For the rest of us, the decision is noteworthy because of the unusual deference the court gives to the legislature on an issue of constitutional rights.This is amended opinion. I read the original, but remember very little (I'm not a land use junkie). So I'll just lay

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1136916742612613812006-01-10T10:48:00.000-07:002006-01-10T11:12:22.660-07:00Tenth Circuit Summaries

I practice in state court, and I mean for this blog to be primarily a repository for state appellate information. But I know a lot of you practice in both federal and state court. So when they come my way, I will post tenth circuit summaries.A big thanks to Bonnie Hill, at the Office of the Utah Attorney General, for the following tenth circuit summaries:CRIMINAL LAW & PROCEDURE, SENTENCINGUS v.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1136912777980434862006-01-10T09:55:00.000-07:002006-01-10T10:06:17.993-07:00Utah Supreme Court will hear argument today

The court normally doesn't hear argument in January, but it will at 2:00 today in the State employee retirement benefits lawsuit.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1136852835054046062006-01-09T16:54:00.000-07:002006-01-09T22:48:42.246-07:00The cure for Utah Supreme Court's laments? Imagination

State of the Beehive and Crescat Setentia both discuss Justice Nehring's plea for state constitutional claims in Brigham City v. Stuart. CS hypothesizes that law schools are to blame for the dearth of state constitutional claims because they only teach law students how to argue from case law, of which there is very little concerning state constitutions.Twenty years ago, the Vermont Supreme Court

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com1tag:blogger.com,1999:blog-19489806.post-1136618879700728032006-01-07T00:17:00.000-07:002006-01-07T00:29:30.016-07:00Just keep on keeping on

Thanks for the encouragement, steve u.Steve is a model for how legislators should interact with their constituents. Everybody else in the legislature better sit up and pay attention to what he's doing. It's the way of the future.He was a big inspiration for me to start this blog. Well, not him personally. I've never met him. But reading his blog helped me see the potential for HDYLTA.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1136615778799508442006-01-06T23:31:00.000-07:002006-01-06T23:59:22.760-07:00When is an alternative interpretation of a contract term plausible?

When it evokes applause from the court.Saleh v. Farmers Ins. Exchange, 2006 UT 1.Whatever you think of the merits of Justice Nehring's opinions, he at least makes an effort to make a boring case interesting to read.Saleh wanted more money from Farmers to pay for his house that burnt down. The parties disagreed on the correct interpretation of the payment timing clause in the insurance policy.

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1136614640918663782006-01-06T22:22:00.000-07:002006-01-06T23:17:20.960-07:00AAG termination for sexual harassment upheld

Sorge v. Office of the Attorney General, 2006 UT App 2.The court of appeals upheld John D. Sorge's termination for sexual harassment. Sorge was terminated for making graphic sexual comments to a paralegal on two different occasions. This after being placed on corrective action for previous offensive conduct.The court considered three issues. First, it held that due process did not require that

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1136579595157889852006-01-06T12:56:00.000-07:002006-01-06T14:49:58.460-07:00Utah gets a SCOTUS cert grant

Jeff Gray is a friend of mine and counsel of record for Utah in Brigham City v. Stuart, which he lost in the Utah Supreme Court. He just told me that the U.S. Supreme Court granted his cert petition.I'm very happy for Jeff---and for search and seizure law in Utah.A little about Brigham City:Four Brigham City police officers responded to a complaint of a loud party. They arrived at the offending

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1136515346151299762006-01-05T19:04:00.000-07:002006-01-09T22:10:40.713-07:00A moment of silence

for Justice D. Frank Wilkins.

I've always found comfort in privacy. Knowing that nobody was aware of what I was doing always made mediocrity and failure more tolerable. I'm like the guy who knows the right answer, but doesn't raise his hand just in case he is wrong.So to date I have posted under the illusion that nobody was reading what I was writing. Charlie, over at State of the Beehive, destroyed that illusion today. Now

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com3tag:blogger.com,1999:blog-19489806.post-1136350665406498252006-01-03T21:44:00.000-07:002006-01-03T22:23:21.253-07:00Duchesne County's denial of conditional use permit held arbitrary and capricious

Uintah Mountain RTC v. Duchesne County, 2005 UT App 565.The court of appeals reverses Duchesne County's denial of a conditional use permit for a residential treatment center. The court found the county's decision to be arbitrary and capricious because it was not based on substantial evidence. Specifically, the county's findings were incompatible with earlier findings it made for a permit issued

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0