THE BREAKTHROUGH THAT MAKES WESTLAWøi THE FIRST RESEARCH SERVICE To UNDERSTAND PLAIN ENGLISH. It's so simple, even inexperienced users No wonder lawyers are calling WIN frt/tt are getting great results the first time. "remarkable;' and "incredibly accurate... 18 of Compare a search request in the Boolean lan- 20 cases WIN found were right on point." øi 4' 4!Øi guage with the same request using WIN in Combined with West's exclusive head- If computer language seems like hiero- plain English and you'll see what we mean. notes, timesaving synopses and key number glyphics to you, then do your research in system, WIN is further proof that WESTLAW plain English on WESTLAW. Here's a Boolean query with terms really does give you more ways to win. and connectors: Because WESTLAW has broken the Call 1-800-328-9352 now for more Boolean computer language batTier with manufacturer /s disclos! Is side-effect /s drug information. WIN~ The technological breakthrough that Here's the same search with WIN in makes your research faster and easier than plain English: ever before. Must a manufacturer disclose the side effects Just describe your issue in a simple sen- ofadrug? i\tJ¡ti. l4WA tence and WESTLAW automatically searches lI through milions of documents for you. More ways to iv

(91993 WEST PUBLISHING 3-9721-6/11-93 i 4150191 Utah~ - UTAH BAR JOURNAL - Published by Thc Utah Statc Bar 645 South 200 East Vol. 7 NO.2 February i 994 Salt Lake City, Utah 84111 Telephone (801) 531-9077 Letters...... 4 President H. James Clegg President's Message ...... 5 President.Elcct by H. James Clegg Paul T. Moxley ) Commissioner's Report...... 7 Executive Director John C. Baldwin by Charlotte L. Miller Bar Journal Committee The Evolution of Court Consolidation ...... 9 and Editorial Board by Harold G. Christensen Editor Calvin E. Thorpe Views About Utah's Judicial Selection Process ...... 15

Associate Editors The Judiciary's Perspective: The Merits of Merit Selection M. Karlynn Hinman by Kay S. Cornaby and Ronald W Gibson Wiliam D. Holyoak Randall L. Romrell One Legislator's Perspective: More Executive, Less Judicial by S. K. Christiansen Articles Editors David Brown Perspective of the Governor: Modify, Not Abandon, the Process Christopher Burke by Governor Mike Leavitt Leland S. McCullough Jr. Derek Pullan How To Letters Editor Basic Utah Water Law...... 19 Victoria Kidman by J. Craig Smith Views from the Bench Editors Judge Michael L. Hutchings State Bar News ...... 23 Judge Stephen VanDyke

Legislative Report Editors The Barrister...... 26 John T. Nielsen Barbara Wyly Views from the Bench Case Summaries Editors What Do I Know?...... 28 Scott A. Hagen by Judge Glenn K. Iwasaki Clark R. Nielsen Case Summaries...... 30 Book Review Editor Betsy L. Ross Utah Bar Foundation ...... 32 "How to . . ." Editors Brad Betebenner \ David Hartvigsen CLE Calendar ...... 33 Patrick Hendrickson Classified Ads...... 35 ADREditor Cherie P. Shanteau Utah Bar Journal Subject Index 1988-1993...... 36 Law and Technology Editor R. Bruce Findlay COVER: Left fork of Blacksmith Fork Canyon, East of Hyrum, Utah, by Richard R. Glen Cook Medsker of Fan', Kaufman, Sullivan, Gorman, Jensen, Medsker & Perkins, Ogden, Utah. Stephen K. Christiansen David Erickson Members of the Utah Bar who are interested in having photographs published on the cover of the Utah Bar Hakeem ¡shola Joiimal should contact Randall L. Romrell. Associate General Counsel, Huntsman Chemical Corporation, Thomas Jepperson 2000 Eagle Gate Tower. Salt Lake City. Utah, 84111, 532-5200. Send both the slide (or the transparency) and D. Kendall Perkins a print of each photograph you want to be cousidered. Artists who are interested in doing ilustrations are also 1. Craig Smith invited to make themselves known. Denver Snuffer The Utah Bar Joiimal is published monthly, except July aud August. by the Utah State Bar. One copy of each Barrie Vernon issue is furnished to members as pai1 of their State Bar dues. Subscription price to others, $30: single copies, Terry Welch $4.00. For information on advertising rates and space reservation. call or write Utah State Bar offices. Judge Homer Wilkinson Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and Committee Liaison publication of advertisements is not to be considered an endorsement of the product or service advertised. Leslee A. Ron Copyright (Q 1994 by the Utah State Bar. All rights reserved.

Februmy 1994 3 1 i I ~LETTERS i Dear Editor: ity. A safe harbor from suit should result if the disrespectful view to the clients she supposedly corporate records show the director did so. serves. And as for her cries of being oppressed, In response to my article in the August- Officers and directors of a depository institu- tell that to some actual production line workers September 1993 issue of the Utah Bar Journal tion have a responsibility for the prudent and see how they react. criticizing the adoption of the 1993 Amend- investment of other people's money - the funds Sorry Sue, while the pursuit of happiness ment to the Utah Business Corporation Act of its depositors, both private and governmental. may be an inalienable right, it is not an limiting liability of corporate directors to The public interest in the safe and sound man- employer's duty to deliver happiness to its "gross negligence," Lawrence Alder justifies agement of depository institutions should take employees. If it's not making you happy, or if that Amendment on the basis of over-zealous- precedence over concern by directors that the you are unwilling to trade some psychic ness of the FDIC in pursuing officers and business judgment rule does not adequately pro- happiness for the ability to pay your rent, then directors of closed depository institutions. The tect them from liability for breach of their duty you are perfectly free to try some other line result of the FDIC's suit against officers and of care. Safeguarding the savings of Utah's citi- of work. directors of Tracy-Collins Bank & Trust, zenry and the deposits of state and local according to Mr. Alder, has created a reluc- governmental entities deserves better steward- Ira B. Rubinfeld tance of Utah's citizens to serve on the board ship than "gross negligence." Mr. Alder's of directors of Utah's depository institutions. experience as President of the Utah Banker's I submit that my position that the 1993 Association should have convinced him of that Amendment fixing "gross negligence" as the fact. Only recently the Comptroller of the cur- standard of liability for directors and officers of rency, who regulates national banks, pointed out Dear Editor: all Utah corporations is not good policy is not that safety and soundness of depository institu- met by Mr. Alder's response. The curbing of It's easy to see the gears turning at the Utah tions is not only important to protect depositors alleged overzealousness of the FDIC in seeking Bar Journal. The goobs out here in Salt Lake but also to promote long-term economic growth. to reduce the cost to taxpayers of protecting It should also be noted that the "gross negli- just can't wait to lap up the latest self-serving piece of navel-contemplation from the final depositors by suits against a closed financial gence" standard defended by Mr. Alder applies institution's offcers, directors, lawyers, auditors, frontier, California. Your recent article, "The to all Utah corporations, not just depository insti- Expendable Professional", by Sue Vogel Flo- or accountants is a matter for Congress to remedy. tutions. Should investors in any Utah business be Mr. Alder does not explain why (1) the res-Sahagun, recycles every cheap Marxist restricted to that standard of protection? Should business judgment rule as defined and class-warfare slogan in order to establish that, Utah depository institutions invest their deposi- explained in § 4.0l(c) of the American Law gee, my life sucks, and it's somebody else's tors' money in loans to a Utah corporation whose Institute Principles of Corporate Governance, fault. It's one thing to hear this kind of garbage officers and directors have only that standard of from alienated factory workers; but from alien- (2) the test for recovery in derivative actions in care to meet in conducting its business? § 7.18, and (3) provisions for limitations on ated yuppies making $75,000 a year? damages in § 7.i 9 do not provide a "safe harbor" Ms. Flores-Sahagun has got one thing right: Peter W. Bilings, Sr. for any conscientious outside director, nor why by and large, lawyers don't do anything usefuL. "reckless indifference to or deliberate disregard But only a lawyer; no, only a California of stockholders" or actions "beyond the bounds lawyer, could admit this and then manage to of reason" (the generally-accepted Delaware pass the blame off on someone else. criteria for "gross negligence" of directors) Since lawyers have spent so much time con- Dear Editor: constitute a proper standard to protect any cor- vincing society that everyone is a victim of poration, its shareholders and creditors. I read with interest "The Expendable Profes- some kind, I suppose it was only a matter of Under the ALI Principles of Corporate Gov- sionals" inò your November 1993 issue. Ms. time before they counted themselves among the ernance, the business judgment rule is not an Flores-Sahagun obviously is disillusioned and victims. Reading this article reminded me of affirmati ve defense to be established by the cynical of the legal profession. Practicing law is, that character on the TV show "L.A. Law", defendant director - the burden of proof is on without doubt, a stressful, demanding and, at Arnold Becker, rationalizing that he's actually the plaintiff to show that the conditions for times, exhausting job. But for the author to por- a "victim" of the women he seduces. application of the Rule did not exist and that tray the profession as one that contributes Ms. Flores-Sahagun closes her article with a the director did not actually and rationally nothing to society is insulting, and to portray plea for "a system that can satisfy not only our believe his or her decision to be in the best associates as mere victims of capitalism, ludicrous. material needs but also our needs (sic) to be interest of the corporation. "Actually" means I am sony that Ms. Flores-Sahagun feels so treated with dignity and respect." If Ms. Flores- ii the director did make a decision and "ratio- disilusioned as to the value of legal work, and Sahagun wants to be treated with dignity and nally" that the director was reasonably also so oppressed by having to actually work. respect, she ought to quit whining and grow up. informed of the facts or reasonably relied on Believe it or not, there are those of us who think the judgment of others who had knowledge of that while law may not be our ultimate callng, it Willam Robbins the facts and circumstances and the conse- is a profession that delivers valuable services to Member, California State Bar quentent belief of the director was rational at milions of people. My experience is that most the time it was made. Thus, a director, who people can joke about lawyers but when they takes the time and makes the effort to perform actually need one they give lawyers the highest the duties of care under § 4.01 of the ALI Prin- degree of trust and respect. The author's cynical ciples, is reasonably informed and makes a view of legal work as nothing more than a pro- rational decision has a safe harbor from liabil- duction line depicts a condescending and

4 Vol. 7 No.2 II Utah's Merit-Selection of Judges

By H. James Clegg

them. We hear few such complaints and fidence in him and in the judicial process As you therehave is noted a controversy from the concerning papers, hope that those lawyers who are dissatisfied is reduced by public debate which is not our judicial nomination system. Perhaps it wil identify themselves and become part of really aimed at him at all but at disagree- will be a bonfire when you read this; per- a dialogue for reformation, if that's needed. ments with the process through which he haps it has even now run its course. Utah is considered a model in its adapta- was selected. In addition to modifying the judicial tion of the so-called Missouri Plan for The U. S. Senate's responsibility is con- selection process, there is interest in legis- non-partisan, merit selection of judges. Our siderably wider, an "advise and consent" lating a recall statute which wil allow the bench is tmly excellent in all objective criteria. standard. The debate surrounding the legislature (or just the Senate under one This doesn't mean our system can't be fur- nominations of Messrs. Bork, Thomas and scenario) to "fire" a sitting judge. The cri- ther modified and improved; it does mean Ginsberg did nothing to improve the teria for dismissal have not been verbalized that it should not again become politicized. image of the Supreme Court or the Senate, to our present understanding. With the approval of the Bar Commis- quite the contrary. Further, it appears that Based both on press quotes and conver- sion, I sent this letter to the Senate Judiciary Justice Thomas is crippled as a public ser- sations with individual legislators, it is Committee at the time Governor Leavitt vant, certainly with the public and perhaps apparent that some do not understand the nominated Judge Russon for elevation to with his own peers on the Court. presenLchecks and balances on the judi- the Supreme Court; it has been shortened Looking at the wider view, we do not ciary. Before new systems are implemented, for the space available here: shy from further scrutiny and improvement the legislature really should understand and of the judicial nominating system. It has analyze the present one. Dear Senator Beattie.' been modified in the past where improve- Toward this end, we wil prepare, with The Bar wishes to advise you and the ments were needed; that should be a the help of the Court Administrator's Senate of its unqualified support for the continuing process. However, we strongly Office and bar members on the Judicial nomination of Judge Leonard Russon for urge against returning to a system even Conduct Commission, the Judicial Stan- the Supreme Court. While we expect the reminiscent of the one rejected in 1967. dards Review Commission and the triaI- Senate to take its Constitutional responsi- The nominating commissions have and appellate-Judicial Nominating Com- bility to "consider" Judge Russon' s "fitness worked diligently to avoid naming people missions a synopsis of the present election, for office" fairly "without regard to any who are lazy, indecisive, intemperate or continuing education and retention-election partisan political consideration", there are mentally dulL. We think that, upon reflec- scheme for distribution to legislators. numerous rumors cited by 'the press indicat- tion, all must agree they have succeeded A disquieting rumor is that the dissatis- ing that the Senate may not be so disposed. very well if these are appropriate criteria. fied legislators, or some of them, rely on Judge Russon, in our estimation and The essential independence of a judge complaints of lawyers against present from all we know of him, is eminently fit. It backfires if a judge is not a hard worker, judges and the system which produced will be most unfortunate (the citizens' con- judicious in temperament, able to come to

Februaiy 1994 5 .1

CORPORATION KITS closure on issues and reasonably intelligent ous commissions by Governors Rampton, and experienced in the law. Regard to par- Matheson, Bangerter and Leavitt. While FOR ticipation by women and minorities has they cannot discuss their deliberations been and is given. The bench Utah has about specific candidates, they can certainly UTAH developed under its version of the Missouri explain the process and the effort and COMPLETE OUTFIT Plan stands out for quality under any stan- hard work dedicated to assure its success. dard, thanks to the efforts of the nominating We enclose a resolution made by the commissions to be certain that every nomi- Bar Commission at its November meeting $49.95 nee is capable of serving capably and in response to comments made by Gover- PRE-PRINTED BY-LAWS & MINUTES STOCK CERTIFICATES, PRINTED competently. nor Leavitt. We have tried to be CORPORATE SEAL WITH POUCH The present criticism does not seem to be progressive and constructive in respond- BINDER WISLIP CASE & INDEX TABS about quality of nominees but àbout poli- ing to his thoughts. This resolution was SS-4 FORM FOR EIN tics. Politics change frequently, so it is delivered to the Governor's staff about S CORPORATION FORMS (2553) important to have an enduring system which two weeks ago; we felt it was received in $ 3.50 ADDITIONAL FOR SHIPPING & HANDLING can suffer bad politicians as well as shine (UPS GROUND). NEX DAY DELIVERY AVAILABLE the spirit offered and hope that the Bar ON REQUEST AT SLIGHTLY HIGHER CHARGE. with good ones. The longer view insists that can be helpful to the Governor and the Complete kit wlo pre-printed the process stay above momentary political legislature in this study. By-Laws & Minutes, includes expediencies and comforts. 50 shts. blank bond paper: When you are ready for hearings on this We hope the bar membership will be $47.95 plus $3.50 S & H issue, we wish to provide testimony from solid in its support of our merit-selection NEW! Bar personnel familiar with the current and system and wil help educate our legislators . NON-PROFIT OUTFIT $ 69.95 prior systems as well as from the myriad of who may not presently have the back- . LIMITED LIABILITY COMPANY OUTFIT $ 69.95 stellar lay m.embers appointed to the vari- ground to compare it against rival systems.

~~ FOR YOUR NEXT DOCUMENTAPRODUCTION

-tJ":~ , - - ~ ~ \' . i /'--.J .'~:- =-~l; - r ..~~~~\~\~-;;,'1\. -, ì.i\ \~ \~ . /.",1. ,- -- ~'-~-.1~_/ ì' \1. ~ ~.".~..~/::.'., ¡ 'f,/~~/ . ." WE SERVE ONLY THE ~ . '.' NORTHWESTI .:', _ \..._. :~ '~~:,:'~"~ ORDER TOLL FREE! PHONE 1-800-874-6570 FAX 1-800-874-6568 ..- -- -_.-' , t\..~"~:),,...,::. / .~,! n. ORDERS IN BY 3:00 PM MT ARE SHIPPED THE SAME DAY. WE WILL BILL YOU WITH YOUR ORDER. LEGAL COpy OF SALT LAKE SATISFACTION GUARANTEED. THE LITIGATION DOCUMENT COPYING SPECIALISTS PLEASE I WE MUST HAVE THE FOLLOWING INFORMATION TO PROCESS YOUR ORDER: . Quality service - Done Right or Done Overl Exact name of the corporation. . Fast Overnight and Same-day Service State of incorporation and year. . Salt Lake's Most Experienced Staff Number of shares authorized. . Free Pick-up and Delivery Par Value or No Par Value & any ....,'\\\\\\\'''1111'','''1/ "' 0 F SA ''''1, ,....\,\"""'"'''''''' "' 0 F S """ preferred shares. ,,' o~ ...... (1' " . Fast Free Estimates ~"vO~...... ~(J"''''' Complete or WIO By-Laws & Min. !:.v...... ~\ . OPEN 24 HRS !...... ~% NO EX CHARGE FOR SPECIAL CLAUSES .C)....~ ~ i ItG.' tort"" Oí': .m. 7' ~ -C)".~ ~ i i tGII t09~ Oí.m. : 7' ~ OR TWO CLASSES OF STOCK %.: \.... ~~~i ~~¥.í..../ 1 328-8707 ~ ~ \ ~~\1 \J¥.í. .: j Note: Speial clauses subject to fit """'''' a...... - 0 1. ,....~ ~\, ...... ~~ ~,/ """, J 28 - ß "\,\\,,, Cori Kirkpatrick """" 328 - 801,\\\,'.... CORP-KIT NORTHWEST, .INC. ""If II ii"'" """1111'_", J. Kelly Nielsen 413 E. SECOND SOUTH BRIGHAM CiTY, UTAH 84302 Peter Caffall-Davis

6 Vol. 7 No.2 r

Clients: They Aren't Always Right But They Are the Customer

By. Charlotte L. Miller

power to treat the users as customers in After a day of telephone tag the client those decisions. We can, however, take calls the lawyer and the secretary says, "I Since rezthe andsummer Ray of Westergard 1993, John haveFlo- know she wants to talk to you, she's just served as new members of the Bar Com- some steps in our everyday practice to treat mission. These two members of the the users of the legal system with whom we down the halL. If you hold on I will get her." Commission are distinguished from the interact - our clients - more like customers. "She is here but she is not in her office. During the past year I have had the áther Commissioners in that they are not I have given her your previous messages." opportunity to be not only a lawyer, but a lawyers and they were appointed by the *** Utah Supreme Court to be voting mem- client on behalf of the corporation where I "I will check and see if the fax you sent bers of the Commission. J The theme that serve as General CounseL. Most of my expe- resonates from these two members is riences as a client have been positive. The is here and call you right back." "How is what we are considering going to following are some suggestions I have come "I don't know if the fax you sent two up with or stolen from others (who are not impact the users of the legal system?" hours ago is here because the fax machine lawyers) on how lawyers can do a better job They remind us that the users of the legal is on a different floor." of treating their clients like customers. system are not solely lawyers and judges, *** but a diverse group of people made up of 1. Teach the support staff that they "We sent the package overnight. Let parents, teachers, executives of corpora- are in a service industry. tions, owners of small businesses, police Clients interact with a lawyer's support me do a trace to see where it was delivered." staff as often or more often than they do officers, victims, etc. Those commission- "Y ou had to get it because I sent it by with the lawyer. Receptionists, secretaries, ers remind us that the users of the legal overnight delivery." runners, acpountants, legal assistants, etc. system should be thought of as customers, *** since they are the ones who create the who understand that they are in a service "Mr. Perez is with a client, but I will need for lawyers and judges. industry and treat clients like valued cus- make sure he gets your message." It is probably obvious that when decid- tomers are helpful to clients and may be a great marketing device. Secretaries who can ing where to build a court house, how to "Mr. Perez is with a very important tell a client the status of a matter when the assess court fees, how to select judges or client and cannot be intenupted." lawyer is unavailable is invaluable. Secre- discipline lawyers, that we need to con- *** sider the users we are serving. But most of taries who are "put out" by the client's calls My personal favorite: After eight months us lawyers think someonè else is making are of no value. The following are examples those decisions and that we have little of good and poor customer relations: of talking on the telephone to the lawyer - February 1994 7 --

or his secretary at least once a week, the profession. tion exercise but really wants to do the secretary says to me, "Now who is the Lawyers are often their own worst ene- deaL. This can result in a client viewing the attorney you work for?" mies. Don't try to make other lawyers look lawyer more as a faciltator than a termator. *** bad in an effort to appear as if you are the Being a client, I can say it is often the only reasonable lawyer alive. Clients don't client, not the lawyer, who is difficult, The best way to encourage a service- oriented attitude in your staff is by buy it and they use the bad-mouthing you demanding and egotistical. Part of being a give them to perpetuate negative attitudes good lawyer is learning how to deal with a example. The way you treat a client and about the legal system, including you. If difficult client, give good advice, and con- talk about a client will influence the way you complain about being a lawyer, you are vince the client you've performed a great your staff treats a client. Also, lawyers complaining about the service you are pro- service for them. In today's world it is not need to be cautious of putting the staff in viding the client. A client would prefer to only the substance of the work that is per- an awkward position when a lawyer hasn't hear that you enjoy your work - because formed, but the atmosphere in which it is returned phone calls or completed a pro- your work is the client's work. given. Lawyers provide a valuable service. ject timely. 7. Offer solutions. As a retort to my marketing friend with 2. Look at the bils before they go out. A friend in the marketing department Treat bils like you would correspon- the Life's Little Instruction Book I read to called me up one day and read to me him the following: dence or any other documents. Check for Instruction 267 from Life's Little Instruc- True, we build no bridges. We raise misspellings and make sure the entries make sense. Look at the total amount tion Book: no towers. We construct no engines. Never ask a lawyer or accountant for We paint no pictures - unless as charged and identify the service the client business advice. They are trained to amateurs for our own principal received for it. Ask yourself, "Would I be find problems, not solutions. amusement. There is little of all that comfortable if the client read this while I Lawyer's are supposed to find problems we do which the eye of man can see. was sitting in the room 7" so that a client can avoid bigger problems in But we smooth out difficul- 3. Be interested in the client. the future. A client becomes frustrated when ties; we relieve stress; we correct Ask the client questions and listen to a lawyer does not offer any options to solve the answers. The more you know about mistakes; we take up other men's the problem. the client, the better you wil be able to burdens and by our efforts we make Example: The lawyer says, "This is the possible the peaceful serve the client. But, don't ask the same life of men in a most restrictive non-competition clause questions every six months. Customers peaceful state. I've ever seen. The other side is unrea- can spot insincerity. Make sure you listen (From an address by John W. Davis, sonable and I recommend you not sign a March 16, 1946 to the Association of the to the answers so you can follow up on the contract with this provision." Bar of the City of New York.) information you've been given. Find out Another approach: "This is the most restric- how the client operates, what motivates There is a lot of truth to the quote, but tive non-competition clause I've ever use it carefully. My marketing friend's the client, what worries the client, how the seen. Let's find out the goal of the other response was, "Someone get a shoveL." I client sees the future. 4. Treat each client as if it were the party in requesting this clause and see if guess I have some more customer rela- we cannot satisfy its concerns with less tions work to do. most important client. restrictive language that will be satisfac- Whether a client has a small or large ISome people refer to these members as the "non-lawyer" tory to you. I wil draft some alternatives economic matter, a simple or complex members or the "public" members to distinguish them from for you to review." the other Commssioners. I don't like either term. We don't question, make sure the client knows that The second approach evidences an have non-doctors, non-teachers, etc. And, I too, consider you think the question or problem is myself a member of the public. Since I haven't found a good understading on the par of the lawyer that the descriptive word, I simply refer to them as "these important. Don't talk about how important client is not simply going through a negotia- commssioners. " you or your other clients are. 5. Don't be afraid of the client. If the project is not going to be finished by the designated time, tell the client as Datalì-ace Investigations, Inc. soon as possible. If the client disagrees Scott L. Heinecke, ß. S. Police Science with you about a course of action, don't let Spcdalizing in: the client intimidate you. Honest commu- nication with the client is the key to providing good service. Don't give the . Assd 8: Backgroiiiid Chl'cks . 1\ issiiig I'l'sons ... Skip Tradng client false expectations about an outcome . Fiiiaiicial & Diir Diligl'lIcl' . Busiiirss & Investment Fmud in an effort to convince the client you are . Cliiiiiial Ddriisr Iiivrstigatioiis . Natioiiwidr Puhlic Recm-ds aggressive and on the client's side. Long . Wiliirss Stall'iil'iits &: Slinl'llaliCl' . Civil & Pl'solial Iiijury term the client wil prefer accurate infor- mation over "feel good" information. New (80 i) 26 i -8886 lawyers suffer from this problem the most. Fax (801) 261-8858 Toll Frcc 800-748-5335 6. Don't complain about the legal 6526 South Slatc Strl't, Siiitl' 203, Salt Lake City, UT 84107

8 Vol. 7 No.2 The Evolution of Court Consolidation

By Harold G. Christensen

possible implementation. Both committees Duringinvolved the past with two the years, effort towhile con- recommended the creation of a Judicial solidate the district and circuit courts, I Council as the executive body for the cannot count the number of times I have courts and an administrative office of the heard the tired phrase: "If it ain't broke, courts to direct all non-judicial business of don't fix it." It is poor advice based on an the courts. Both committees recommended incorrect premise. As the programs by our replacing all of the then existing trial Governor and our President to reinvent courts with a single trial court of general government reflect, the public demands jurisdiction funded by the state - the dis- improvement in the way government con- trict court. Both committees recommended ducts itself. No less is expected of the establishing district court magistrates, our courts than of the executive branch. Randy current court commissioners, with duties Dryer, the immediate Past-President of the assigned by the Judicial CounciL. Both Utah State Bar, is quoted in the final committees recommended a family depart- report of the Commission on Justice in the ment of the district court integrating Twenty-first Century, Doing Justice In juvenile and domestic jurisdiction. Utah.' "The courts can either choose to The principal exceptions to the Bar and embrace change or to chase it, but they HAROLD G. CHRISTENSEN served as legislative committees' recommendations can't ignore it." Deputy Attorney General of the United resulted from the further work of the Con- The Commission on Justice in the. States during the Reagan and Bush stitutional Revision Commission. In Twenty-first Century frames over two administrations with responsibility for drafting a wholesale revision of the Judi- decades of reform in the administration of the day-to-day operations of the Depart- cial Article of the Utah Constitution, a justice in Utah. In 1972 United States Dis- ment of Justice. For the prior thirty-five recommendation of the Bar and the leg- trict Judge J. Thomas Greene, then in years he was engaged in a generallitiga- islative committees, the CRC retained private practice, chaired the Unified Court tion practice in Salt Lake City. After courts not of record as a feature of the leaving the Department of Justice, he Committee of the Utah State Bar that rec- court system. The CRC also paved the taught at the University of Utah College way for an intermediate Court of Appeals ommended sweeping changes in the of Law, Hastings College of Law in San organization, administration, and jurisdic- Francisco, and Bond University, rather than an expanded Supreme Court. tion of the Utah state court system. Queensland, Australia. This academic Efforts towards implementation of Recommendations of th~ Utah State Bar experience was interrupted by a tour as these recommendations have not been the Concerning Adoption of Unified Court for Chief of the Litigation Division of the stuff of banner headlines. The work has Utah (April 22, 1972). Paralleling the Utah Attorney General's Office. Mr. been sporadic and difficult. The results work of the Bar, the Legislature estab- Christensen and his wife Jacquita Corry, have not been a linear progression towards lished the Unified Court Advisory former Assistant Dean, University of a unified state court system as envisioned Committee, which issued its report in Utah, College of Law, have returned to by the Unified Court Committee and the September 1972. Utah Courts Tomorrow: Salt Lake City where he serves as coun- Unified Court Advisory Committee. Cir- sel to the firm of Snow, Christensen & Report and Recommendations of the Uni- cuitous and even retrograde paths were Martineau. fied Court Advisory Committee. The report often required to reach an important objec- of the Bar committee cannot be found, but tive. But through the joint efforts of the its recommendations are quoted at length Bar, the Legislature, and the courts we by the legislative committee whenever the court of general jurisdiction for all types of have made progress, and working together two touch upon a common subject. litigation. we wil continue to make progress. The recommendations of these two state With just two significant exceptions and Representative John Valentine (R - committees are similar to the recommen- some modifications over the years, all of the Qrem) is to be commended for his stalwart dations of the American Bar Association's major and most of the minor recommenda- and zealous efforts to develop the legisla- Standards Relating to Court Organization tions of the two committees have either tive framework for court consolidation. (1990). All three reports agree on one been put into effect, are in the process of The merger of the circuit court into the point: the advisability of a single trial implementation, or are being studied for district court was the centerpiece of his

FebruOlY 1994 9 I -i ,

1991 legislation, but Representative incentive to start a municipal justice court. cess is to complete the consolidation of the Valentine's bil reached far beyond the However, the legislation wisely left district and circuit courts. During the 1991 consolidation of court jurisdictions. Its much to be accomplished by future Legisla- general session, the Legislature consoli- major purposes were to: tures and the Judicial Council based upon dated the district and circuit courts in · further public policy rather than fiscal the experience gained during the transition. districts five through eight effective Jan- policy in charging and prosecuting To assist in the implementation of the 1991 uary 1, 1992, but delayed consolidation in misdemeanors; legislation, the Judicial Council established districts one through four until January 1, . establish public policy rather than fiscal state and local transition teams on which 1996. The Utah Judicial Council, at the incentives as the motivating factor in cre- judges of all levels of court and the Bar are request of the judges of districts one ating municipal justice courts; represented. Representatives of the Judicial through four, is now seeking legislation · eliminate the proliferation of specialty Council, the state and local transition teams, that will accelerate the process by 18 fees attached to criminal fines; and the Administrative Office of the Courts months and complete court consolidation . eliminate the proliferation of single have met repeatedly with the Bar Commis- on July 1, 1994. At the deadline for sub- judge courthouses; and sion, its committees, and the Legislature to mission of this article for publication, the . simplify court structure and improve discuss methods for consolidation and Judicial Council had considered proposed public access to and understanding of the other issues. legislation, but had not yet secured a spon- courts. The task is tremendous. The judiciary sor. References in this article are to the Many of these goals were accom- has as its goals improving the quality of jus- draft bill, which is subject to change. plished directly by the legislation. The tice, improving access to justice, controllng Lawyers and legislators have raised legislation replaced the multiplicity of fees the cost of justice, and simplifying the issues during the implementation of court on criminal fines with a single surcharge bureaucracy of justice. To achieve these consolidation. Not all of the questions are on fines. It distributed misdemeanor fines goals the judiciary has tried to build a coali- related to court consolidation, but whether equally regardless of the level of offense tion of judges, the Governor, the related to court consolidation or not, the charged, the court in which charged, or the Legislature, and the Bar. Such coalitions are questions wil best be answered by moving type of disposition. It eliminated the abil- not easily achieved. Reasonable people forward with consolidation, not backward. ity of a municipality to dictate the 10cation often disagree. Court commissioners. Despite the of a circuit court and reduced the financial The next step in this evolutionary pro- rhetoric, the role of court commissioners

. Addiction Medicine . Family Practice . Neuropsychology . Pediatric Emergency Medicine . Psychopharmacology . Adolescent Medicine . Forensic Odontology . Neuroradiology . Pediatric Endocrinology . Public Health . Allergy . Gastroenterology . Neurosurgery . Pediatric Gastroenterology . Pulmonary Medicine . Anesthesiology . General Surgery . Neurotology . Pediatric Hematology . Quality Assurance . Blood Banking . Geriatric Medicine . Nursing . Pediatric Infectious Diseases . Radiation Oncology . Cardiology . Gynecologic Oncology . Obstetrics . Pediatric Immunology . Radiology . Cardiovascular Surgery . Gynecology . Occupational Medicine . Pediatric Intensive Care . Reconstructive Surgery . Clinical Nutrition . Hand Surgery . Oncology . Pediatric Nephrology . Rheumatology . Colorectai Surgery . Hematology . Ophthalmology . Pediatric Neurology . Surgical Critical Care . Critical Care . Immunology . Orthodontics . Pediatric Nutrition . Thoracic Surgery . Cylology . Infectious Diseases . Orthopaedic Surgery . Pediatric Oncology . Toxicology . Dentistry . Internal Medicine . Otolaryngology . Pediatric Otolaryngology . Trauma and Stress . Dermatology . Interventional Neuroradiology . Otology . Pediatric Rheumatology Management . Dermatological Surgery . Interventional Radiology . Pain Management . Pediatric Urology . Trauma Surgery . Dermatopathology . Mammography . Pathology . Pharmacy . Ultrasound . Dysmorphology . Medical Genetics . Pediatrics . Pharmacology . Urology . Electrophysiology . Medical Licensure . Pediatric Allergy . Physical Medicine/Rehabilitation . Emergency Medicine . Neonatoiogy . Pediatric Anesthesiology . Plastic Surgery . Vascular Surgery . Endocrinology . Nephrology . Pediatric Cardiology . Podiatric Surgery . Weight Management . Epidemiology . Neurology . Pediatric Critical Care . Psychiatry All physician specialists are board-certified medical school faculty members or are of medical school faculty caliber. Experience in over 6,000 medical and hospital malpractice, personal injury and product liability cases for plaintiff and defendant. Specialist's curriculum vitae and complete fee schedule based on an hourly rate provided upon initial inquiry. Approximately three weeks after receipt of records specialist wil contact attorney with oral opinion. If requested the specialist wil then prepare and sign a written report and be available for testimony,

10 Vol. 7 No.2 J has not significantly changed since the their cases in an expeditious manner. One of vision that precluded circuit courts and 199 I court consolidation bilL. Court com- the motivating factors behind the 1991 court municipal justice courts in the same city or missioners have been well respected consolidation bill was the proliferation of town. This restriction ensures control of participants in the judicial process for small, single judge circuit courthouses at the the growth of justice courts to those thirty years. Over those three decades, sole discretion of a municipality. The goal municipalities that can demonstrate a need their authority has increased periodically of eliminating that proliferation has been to the Legislature. to include juvenile court cases, civil men- accomplished. The Legislature has now The subject matter jurisdiction of jus- tal commitments, domestic cases, magistrate communicated its desire to keep existing tice courts will not change with court functions, and class A misdemeanors. The courthouses open. The proposed legislation consolidation. As always, justice courts proposed legislation does not affect the leaves exclusively to the Legislature the will continue to have jurisdiction over authority of court commissioners. decision to remove the consolidated district small claims cases, class Band C misde- Since 1991 there have been three sepa- court, including current circuit courts, from meanors, and infractions. rate studies of proposed increases to court the cities where they now exist. An identified goal of court consolida- commissioner authority. The proposals Whether to establish a court of record in tion is elimination of concurrent originated in the Third District Court. The any particular municipality has always been jurisdiction between the courts of record Third District Court likely will continue to a delicate balance between the need for and justice courts. This goal was not propose appropriate increases in court local access to the court and the need for the accomplished in the 199 i court consolida- commissioner authority. Two of these efficient expenditure of public funds. In tion bill but is accomplished in the studies were sponsored by the Judicial many cases the answer is clear, but in many proposed i 994 legislation. Council and one by the Legislature. All cases it is not. The Judicial Council will The proposed legislation does not elim- three studies were with full participation continue to work with the Bar, the Legislature, inate concurrent subject matter of the Bar. Discussions with individual and local government to strike that balance. jurisdiction, but rather amends the territo- lawyers and committees of the Bar show rial jurisdiction of county justice courts to that there is SUppoit for COUlt commission- create an exclusive place to file misde- ers to continue the work they currently do meanors, infractions, violations of and to expand that work into other areas, ordinances, and most small claims. This is "Representative John Valentine such as probate law and landlord/tenant in keeping with the commitment of the disputes, where the expertise of the com- (R-Orem) is to be commendedfor Judicial Council to adjudicate municipal missioner suits the needs of the case. The his stalwart and zealous efforts to ordinance violations and misdemeanors in courts will continue to seek the counsel of develope the legislative framework the district COUlt where a district COUlt exists. the Bar in efforts to use court commission- The following is a summary of the filing ers for best effect. The Bar should not fear for court consolidation. " requirements proposed in the legislation. a reasoned debate over the role of court With the small claims exception noted, all commissioners. filings are exclusive, not concurrent. Although some lawyers and legislators Consolidated District Court cannot mention either court commission- Consolidation of circuit courthouses has . Small claims if the defendant resides ers or court consolidation without been limited to two. The Kaysville and in or the claim arose in a city with a dis- mentioning the other, the two issues are no Clearfield Circuit Courts have been consoli- trict court. longer related. With the passage in 1993 dated into the Layton courthouse in Davis . Civil litigation above the small claims of HB 188, the Legislature resumed its County. limit. historic responsibility of approving the The Third District Transition Team rec- . State Band C misdemeanors, state creation of court commissioner positions. ommends no courthouse consolidation in infractions, and city ordinance violations The Legislature and the Judicial Council Salt Lake County. A proposal for a Salt occurring within a city with a district court. share the responsibility for establishing the Lake Courts Complex in the downtown . Class A misdemeanors and all felonies. authority of court commissioners. The greater business district housing the Dis- County Justice Court plan for completing consolidation in judi- trict, Circuit, and Juvenile Courts, the . Violations of county ordinances. cial districts one through four does not Supreme Court, the Court of Appeals, the . State Band C misdemeanors and state rely upon expansion of the use of court State Law Library, and the Administrative infractions in the unincorporated county or commissioners. Any increase in the num- Offce of the Courts is proceeding indepen- in cities without a municipal justice court ber of court commissioners will be based dently of court consolidation. The or district court. upon growth in the volume of the cases courthouses in Murray, Sandy, and West . City ordinance violations in cities with- currently handled and any agreed upon Valley are not affected by the proposed Salt out a municipal justice court or district increase in the types of cases commission- Lake Courts Complex. court. ers should handle. Role of justice courts. The proposed Municipal Justice Court Continued service of the courts of legislation precludes a municipality that is a . Small claims, state Band C misde- record to municipalities. The judiciary is location of the district court from creating a meanors, state infractions, and city committed to keeping courthouse doors justice court without the approval of the ordinance violations within the municipal- open to host cities and to adjudicating Legislature. This feature is a return to a pro- ity where the court exists.

Februw)' 1994 11 h Magistrate functions. Justice court mag- establish justice courts continues. convenient access to the courts of record istrate functions continue as before. No other level of court enjoys this dis- or to the county justice court. If a munici- Small claims. Residents of the unincorpo- cretion. Historically, district court and most pality is a location of the consolidated rated county and residents of circuit court locations were established by district court, the bil requires legislative municipalities without a municipal justice statute. The Judicial Council has little dis- approval to establish a municipal justice court may continue to choose between the cretion in the number and location of justice court. County justice courts wil continue county justice court and the consolidated courts. The Council has established and to co-exist with the consolidated district district court for filing small claims cases. enforces criteria for the creation of a justice court in 28 of 29 county seats, but the The role of the justice courts has court and the competence of its judges, but county justice court territorial jurisdiction always been largely in the hands of county the Council has no discretion to deny an within the county seat is limited to the and municipal government. At least since application to establish a justice court if the enforcement of county ordinances. 1977, and the enactment of the Circuit municipality meets the necessar criteria. These provisions should halt what Court Act, the Legislature has granted The proposed legislation permits munici- appears to be a developing trend to estab- local governments discretion regarding palities that are not locations of the courts lish a municipal justice court even in those the establishment of a justice court and a of record to establish justice courts in accor- cities with a court of record. municipal department of the circuit court. dance with the criteria established by the Family court. A task force of almost The 1991 court consolidation bil removed Judicial CounciL. For the most part, these two dozen lawyers, judges, citizen repre- the latter discretion, but the opportunity to are towns and smaller cities that do not have sentatives, and others was established by

. Confdential, secure litigation copy department . Persuasive color copies with accurate, timely and professional servce . Poster-sized color prints (perfect for jury exhbits) . Layout and design servces for presentations, exhbits, and documents . Mounting, binding & other finishing servces . Open 24 hours, FRE pick-up and delivery . Quick turnaround on legal briefs . Facilties management & on-site copy servces . Unconditional guarantee kinko.s yoútlranch offce

Downtown Salt Lake, 19 E. 200 S. Phone 801-533-9444 · Fax 801-364-0913

12 Vol. 7 NO.2 .. the Judicial Council at the request of the by far the better approach. . Revision of the Judicial Article of the juvenile court to consider what, if any- Conclusion, Court reform is not for the Utah Constitution (1985). thing, to do with the jurisdiction and faint hearted nor the short winded. Witness . Uniform judicial district boundaries organization of the juvenile court in view the span of years between the following rec- (1989). of the eventual consolidation of the district ommendations made by the 1972 . State responsibility for the operation of and circuit courts. The task force is now Legislative and Bar committees and their the district court (1989). considering the need and the feasibility of implementation: . Consolidation of the district and circuit l' a family court, which for its purposes . Circuit court established (1977). courts (1992; Proposed completion 1994). includes the possibility of a family depart- . State responsibility for operation of the . Family department of the district court ment of the district court. The task force is circuit court (1983). (Study initiated 1993). scheduled to make its final recommenda- Like rocks upon which one might cross tions in the autumn of 1994. a stream, these steps in court reform have It has been the stated position of some served well but take us only part way to the opposite bank. To stop now treats each bar commissioners that if all court levels "The taskforce is now cannot be consolidated simultaneously, rock, each step as an objective in itself consolidation should not occur. Failing to considering the need and the rather than as a means to cross the stream. achieve part of a reform agenda because feasibility of a family court. . , . I commend the Bar leadership and the Bar the whole agenda is not immediately The task force is scheduled to membership for providing much of the achievable is poor policy. Significant make its final recommendtion critical analysis necessary to reforming the improvement is often accomplished only administration of justice in Utah. I ask for after painstaking change in small doses. in the autumn of 1994. " your continued support to complete con- The systems for district and juvenile court solidation of the courts. management are large enough and compli- cated enough that incremental change is

The law firm of Law Offces TRASK, BRITT & ROSSA TRASK, BRITT & ROSSA a professional corporation a professional corporation

DAVID V. TRASKt is pleased to announcc that WILLIAM S. BRITTt THOMAS J. ROSSAt JAMES R. DUZAN formerly Chief Patent Counsel for LAURENCE B. BONDt Halliburton Energy Services, Duncan, Oklahoma JOSEPH A. WALKOWSKIt JAMES R. DUZANt' and H. DICKSON BURTON H. DICKSON BURTON E. RUSSELL TARLETONt ALLEN C. TURNERt previously a shareholdcr with Woodbury & Kesler ALAN K. ALDOUSt have bccome associated with the firm. JULIE K, MORRISSt A. JOHN PATEt Mr. Duzan's practice will emphasize patent and tregistered patent attorney J trademark application preparation and prosecution I' 'admitted in Indiana and Oklahoma and related counseling, licensing and litigation. SUSAN E, SWEIGERT, Ph,D. Mr. Burton's p,actice will emphasize the litigation registered patent agent of patent, trademark, unfair competition and trade secret matters, trademark prosecution, opposition TRASK, BRITT & ROSSA 525 South 300 East and cancellation proceedings, licensing and contract Post Office Box 2550 negotiations. Salt Lake City, Utah 84110 Telephone (80l) 532-1922 January, i 994 Facsimile (80l) 531-9168

February 1994 13 THE TENTH ANAL

...... ::.:::.:::.:::::::.::.::1:::111111111::::../::

.;:::::::::;:::::;:::;:::::::; :\~?t:r~?)?rt .... ~~¡~¡f~. :::::::::::::::::', ..::::~~~~~~~~~~~~t~~t~~rt~~~~:~:~: .;:;:;:;:;: ::::;:;:;:;:;:;:::;:;:: \;: .~:~t ~:rf~~~: rmf~~~~~~j~t~::::.. . .;.;.:.:.:.:.:.:.:.;.'. ;.:.;.: .;.:. ;.:.:.' . . . ::::::::::::;::::: ::::: ::=: :::::::::::::::::::::::::::::::: :~. ;;:::;:;:::;::::::;:;:;:;:: ::::::::::::.::.

~rff: ......

¡\!iiiillI!i:L-c..:.:.:..:..,...... ::;:;:;:;:::;:;:::;:;:::;:;:::;:;:;:;:;:;::.:;:;::.::::.::.:;:;::.:;::.::.:;::::.::.::.::.::.::.'.:.:.:,:.::,.:.::.....I.....II.i. ::;::::::::::;:;:;:;:::::::::;:;:::;:::;::;:::::;::::;:::::.:.;.:.:...:......

~~~~ ~~~~~~ ~~~~~~~~~~~~~~~~~~~~~~~ ~ ~~~~~~ ~:~~~ ~~~~ ~~ ~ ~~~~~ :~:~:~~~ ~~:~~~:~:~~f~~~:~:~:~;:: :: :::::::::::: :::::::: .~~~~~~~~~~~~:~:~~~¡~~~t~(~:~:f~:~~:~~~:~j~1~1~:~:~f~f~:~:~:~:~~~l~j~:~f~:~f~f~:~f~~m~~rt~¡~¡~¡~ J~~~j1j1j1j;j:j~f~f~~ :~:~:~:~:~:~:~:~:~:~:~:~:~;~:~:~:~:~:~:~;~:~:~:~:~:~:~:~:~:~;:;~:~:~:~:~:~:~:~:;~~~~~~~:r:~~~~~~:~~~:~~~~::~:~~~r~~:~~~~~~~~~~~~~~:~~~~~~~~~~~:~~~~~~:~~~~~:~:~:~:~:::~:;:~:::::;::::::::::::::::::::::::::::.:.:.:.:,:.:':"'::::::::::::::::;:::::;:; :.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:...:.:...:.:::.:.:...:.':...... :.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:::::.:.:.:.:...... ;.;:.;::.:.::.:::..::.::..;'.:;:..:'.:;:.::.::..::.::.:'.::.;::..;.::.::.::.:;.:;.:;..::...::.:;.:;.:;.:;.:::;;:.;;;;::;;;;;:;:;:;:;:;:::::;:;:;:;::::::::::::::::::::::::':':':':"':'"..:~:::~~j~j:::::f:f:f~f:f: ...... p-I ::~:~:~;~;~;~:~;~;~:~;~:~:~:~:~:~:~;:;::~;:;~:~;::~:~;:;:;::~:~:~:~:~:~:~:~:~:~:~:~:::~:::~:~:~:~:~:~:~:~:~:~:~:::~:~:~:~:~;~:~:~:~:::::~~~:~~~~~t~~~~~mr:::~:~:::::;;::;::::::::::::::::::::::::::::.:.:.:.:.:.:...... :~;:~::::::::::::::~t~ 1,.I¡11111.ll1líllilili.i S/i.o.U:II.:.I.:::..ltl...:II.:.:.:.....:.:...:.....II:...... ft':è ? ":':::: ~ ~~ ~~~::l::r:::::::::::n:1::::::::~~~~f: '.' :::::~:~:::::~:~:::~:::: :~.:.:.~.~.:.:.:. ..:.:.:.:.:.:.:-.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:...... " . '.:: :.:.::::. ,':..:'::,::'.":' .,':'.' .'.',',':' ..'...'.' ..'... .:'..' .,'.::.::::..::..::.,:.::.:'.:::'..::..~.:~.:~.:~:~..:;..~.:i.:~:~.:~:¡::.:~::..¡.::.~::::::::: ::::::::::':::':': ':':':':':' :.:.:.:.: : : : : . . : . . . . "::;:::::;:;::::::::::':':' ~:~::::::/::t~:::t:~::::::::::::::::::::::::::::::::::... . :.:.:.:.: ::::::::::::::::::::::;;::::::::::.:.:.:.:.:.:...... ":'::::::::::\~:.:.:::::.: ::::::::;:::::::::::~rf::::::::::::::::::::::'" Moderator Panelits

Paul G. Cassell Richard M. Aborn Professor of Law President, Handgun Control, Inc. Don B. Kates Jr. Criminologist and 2nd Amendment Historian David Kopel Executive Director, 2nd Amendment Project 2 hours Ruben Ortega CLE credit Salt Lake City Police Chief Andrew A. Valdez Juvenile Court Judge speaker from NRA NR representative

University of Utah . Fine Arts Auditorium (Museum, lower level)

Thursday ,February 17, 1994 6:30 p.m. Co-sponsored by the U of U College of Law and Journal Alumni Associaton

J I '" The Judiciary's Perspective- I The Merits of Merit Selection j i

By Kay S. Cornaby and Ronald W. Gibson

For more than a quarter century, Utah clause of the Utah Constitution. Matheson The Senate can reject but not propose an law has required the selection of state court v. Ferry, 641 P.2d 674 and 657 P.2d 240 appointee. judges to "be based solely upon considera- (1982). In response to the Matheson deci- The merit selection system has served tion of fitness for offce without regard to sions, the Legislature removed the statutory three governors from two major political any partisan political considerations." In provision giving it the right to appoint nom- parties for more than 25 years. The recent the state constitution and in legislation as inating commission members and proposed interest in modifying the process appears recently as last year, the Legislature has to the electorate a revision of the Utah Con- to have arisen in large part because five of consistently adhered to this fundamental stitution to require the Senate to "consider the last six nominees to two appellate principaL. Utah Const. Art. VII, §8, Utah and render a decision on each judicial court vacancies were judges. Yet the nom- Code Annotated §20A-1-505. In determin- appointment. . ." Utah Const. Art. VII, §8. inating commissions have not historically ing whether to change significantly the This constitutional revision was approved at favored judges over non-judges for appel- method for the selection of judges, the the General Election in 1984. late vacancies. Indeed, the contrary is true. Legislature should carefully consider the The constitutional revision prohibited the Of the twenty-four nominees submitted to successful operation of the system it Legislature from appointing members to Governor Bangerter for eight vacancies on designed and built so many years ago. nominating commissions and prohibited the Court of Appeals, only five were The current method for the nomination legislators from membership in nominating judges. Governor Bangerter appointed and appointment of Utah's judges has commissions. The constitutional revision four of those seven judges to the Court of changed only slightly since 1967 when the left to the discretion of the Legislature Appeals. Of the fifteen nominees submitted Legislature first enacted the judicial merit nearly all other aspects of judicial nominat- to Governor Matheson for five vacancies selection system. Laws of Utah 1967, ing commissions, including composition on the Supreme Court, seven were judges. Chapter 35. Prior to 1967, the governor and procedures. In the face of this almost Governor Matheson appointed two of had unrestricted authority to fill judicial unlimited opportunity, the Legislature those five judges to the Supreme Court. vacancies. Judicial nominating commis- retained the core features of the system it These figures show that Governor sions did not exist. In 1967, the had previously established by statute. The Bangerter and Governor Matheson worked Legislature established judicial nominat- Chief Justice remained as the chair of the to balance the appellate court appoint- ing commissions for the Supreme Court nominating commissions. The Bar retained ments between judges and non-judges in and each judicial district of the district the appointment of two lawyers to each spite of a nominating commission ten- court. The Chief Justice of the Supreme nominating commission. The governor was dency to prefer non-judge candidates. If Court presided over the commissions. The allocated the appointment of four non- the current governor favors private or pub- governor and the Utah State Bar each lawyers to each nominating commission. lic practitioners over incumbent judges for appointed two members to the nominating The merit selection system is purpose- appointment to the appellate bench, there commissions and the Utah State Senate fully designed to enable all three branches is every reason to believe that over time and House of Representatives each of government to participate in the judicial the merit selection system wil accommo- appointed one member. The clerk of the selection process and to ensure that no one date that preference. Supreme Court provided staff support to branch of government dominates the pro- In our experience, the courts as much the commissions. The commission respon- cess. However, the governor retains - as or more than any organization within sible for a judicial vacancy nominated the rightly - the most significant control of the state government proved their willingness three best qualified applicants. The gover- appointment process. Except by default of to participate in the debate and the imple- nor appointed one of these three, and the the governor, only the governor can appoint mentation of changes designed to improve State Senate confirmed the appointment. a judge. The governor is limited to the nom- the quality of justice and access to the This model remained unchanged until inees recommended by the nominating courts, regardless of the source of the idea 1982 when the Supreme Court ruled that commission, but the governor appoints a for change. In our opinion, the courts are the establishment by statute of Senate con- majority of the members of the commis- wiling to embrace improvements in the firmation of judicial appointments resulted sions and so should consistently find method of judicial selection. But the valid- in a violation of the separation of powers preferred candidates among the nominees. ity of the improvement must itself first

Febrtmy 1994 15 be proven. tional 18% of the states use the merit selec- unfortunate if the proponents of change The merit selection of judges has been tion system for at least one level of court. were to reintroduce partisan political-con- endorsed by the American Judicature In the rush to change what has worked so siderations into the judicial selection Society since 1913 and more recently by well for so long, no one has offered any process, whether by intent or by default. the American Bar Association. Twenty- explanation of why the current process is The Legislature should carefully consider five percent of the states and the District of flawed. No one has argued that the current the impact of any proposed changes to the Columbia use the merit selection system system nominates unqualified or poorly process. The old maxim still obtains that for the appointment of all judges. An addi- qualified candidates. It would indeed be "If it isn't broken, don't fix it." t

One Legislator's Perspective - More Executive, Less Judicial

By S.K. Christiansen

When Lane Beattie began investigating to talk about. lected, '" he said. "The commission is sup- the judicial selection process more than "The process is not as open as it could posed to look at the nominees on an two years ago, he did not intend to create a be," Beattie said. "The nomination only individual basis. But the legal influences stir. The Senate majority leader was heightened the concern I already had." were greater than most people thought. merely responding to complaints from Beattie's specific concern is that the The process tends to exclude qualified members of the Bar. roles of the Chief Justice and of the two individuals, while the purpose of the nom- Now Beattie's legwork is coming to the attorneys handpicked by the Bar over- inating commission was to include such fore in a bil that would shift more power shadow those of the other members of the individuals in the first place." to the governor and remedy what he sees commission. Despite the fact the Chief Jus- The flaw lies not in the idea of a judi- as nonexecutive domination of the pro- tice is the only member of the judiciary on cial nominating commission, but in the cess. And it's coming at a time - quite the nominating commission, his position as composition of the commission. "This is a coincidentally - when the subject matter commission chair combined with his posi- much better process than we've ever had of his proposal is a topic of intense debate tion as head of the highest court may before," Beattie said. "But it needs to be in the Bar. overpower the commission. fine tuned." "I started working on this matter long "The Chief Justice does what he feels is He proposes three possible changes that before Judge Russon's nomination to the important in the nomination," Beattie said. would shift more control of the commis- Utah Supreme Court," he said. "But after "And I emphasize that Chief Justice Hall sion's makeup to the governor and free up watching that nomination process, I came has done a superb job with the tasks the sys- the commission's decision making process: away more convinced than ever that things tem has assigned him. The problem does (1) Decrease the influence of the needed to change. The balance of real not lie with the Chief Justice himself but Chief Justice. Beattie thinks the Chief power within the judicial nominating com- with the system in which he operates. Justice could still be involved in the pro- mission weighs too heavily in favor of the "There are not enough checks and bal- cess somehow, but is not sure he should be judiciary." ances. The Chief Justice oversees the a voting member. Beattie began an investigation of the workings of the commission. He invites the (2) Let the governor choose an addi- problem after attorneys complained guests that make presentations to the com- tional attorney to sit on the commission. repeatedly that the system made it futile to mission. He defines the terms by which the The governor could select from among a apply for judicial openings if they did not commission operates. variety of individuals nominated by the Bar. have a prior "in" with the judiciary. The "There are four individuals on the com- (3) Include the governor's chief legal result of his investigation: a draft bil to mission with nonlegal backgrounds. Their counsel on the commission. This pro- revamp the makeup of the judicial nomi- input to the process is critical. But in reality posal, still in the "investigation stage," L nating commission. He prepared to their impact may be outweighed by the would put on the commssion an individ- introduce his ideas to the 1994 Legislature. three members with legal backgrounds - ual who is close to the governor and at the In the meantime, unforeseen events especially the Chief Justice who controls same time familiar with legal processes. i turned his proposal into a hot issue. Chief the process." The bottom line to these and other pro- Justice Gordon Hall announced his retire- The result of this judicial-heavy input in posals in Beattie's bil: Give the executive ment. The judicial nominating commission the latest nomination was predictable: all branch back more control of judicial selec- produced three candidates to replace him. three candidates who emerged from the tions while respecting the idea of a Governor Mike Leavitt expressed dissatis- commission were judges. nomination commission. faction with his control of the choices. "Attorneys felt there was no use in Beattie admits that his formulations Suddenly, Beattie's bil was something applying if they were not somehow 'prese- have included executive input. "We've

16 Vol. 7 No.2 J been working with the governor on this teria, there should be a check," he said. some control over the members of the issue," he said. "First, judges must be in sync with the law. judiciary: the Judicial Conduct Commis- In a separate investigation, Beattie is That proposition is clear. But just as impor- sion and the Judicial CounciL. Beattie is looking into the possibility of a bill that tant, judges should be in sync with the studying their composition and the effect would allow the recall or impeachment of philosophy of the Legislature. Too many of their efforts to determine whether to go sitting judges with a two-thirds vote of times I've heard of judges saying, 'I don't forward with his ideas. But he points out w both houses. "Current law allows for the care what the Legislature thinks, here's my that only two members of the Legislature ¡ removal of judges for malfeasance," he ruling.' At present, there's no remedy for a - one from each house - sit on the Judi- said. "But beyond that, where are the situation like that." cial Conduct Commission and that the checks and balances?" Beattie cautions that he does not think current rules do not allow for impeach- His concern in this matter stems again the Legislature should be running the judi- ment when a judge strays too far legally or from constituent complaints. This time, cial branch, only that the judiciary is philosophically. the complaints focused on judges operating in some instances without having "The focus of my investigation is on allegedly passing the bounds of "interpret- to answer for its actions. "Some people say who is determining the effectiveness of ing law" and entering the realm of an appeal is a check," he said. "I think it is judges' work and how that determination "making law." an ineffective one at best." is made," he said. "It may be that the cur- "If judges are not in sync with two cri- Two commissions currently exercise rent system is satisfactory."

Perspective of the Governor - Modify, Not Abandon, The Process

By Governor Mike Leavitt State of Utah

I appreciate the invitation by the Utah to the state constitution that established a Bar Journal to share my thoughts about judicial nominating commission to screen Utah's judicial nominating system. The judicial candidates for the governor to responsibility of appointing judges is one I ensure nominees would be professionally take very seriously. Let me begin by and ethically qualified. This amendment emphasizing that I like our current system. also provided for judges to periodically I think it serves the citizens of Utah well. stand for non-partisan, non-contested But I do believe that the process can be retention elections. The nominating pro- improved with a few adjustments as has cess has produced many qualified judges;- been done in the past. none of which have been turned out of The judiciary, both at the federal and office by the voters. I seek to modify, not state levels, currently wields more power abandon, this approach. than at any time in the history of the It is important the judiciary remain free nation. The selection of judges is one of from partisan political influences. Judges the most important functions of the execu- should not be subject to a partisan election tive branch. The impact of judicial process where they would at very least be appointments typically reaches far beyond tarnished by the perception of undue influ- the terms of the elected officials who nom- GOVERNOR MIKE LEA VIIT has com- ence by campaign contributors who stand inate and confirm. If my own recent pleted his first year as Governor of Utah. to benefit by subsequent judicial deci- f experience is any indication, most voters sions. Furthermore, if members of the understand the importance of the power to judiciary were required to vigorously cam- appoint and are rightly interested in the to nominate and, with the advice and con- paign for political favor it would create an philosophy and other relevant attributes a sent of the Senate, appoint judges for what improper disincentive for judges to render governor would consider in making judi- amounts to lifetime tenure. The division of unpopular decisions. Justice would less cial selections. There is a legitimate labor was structured by the Founders as an likely be served, the legitimacy of the expectation that a governor's philosophy important device in the system of checks courts would be undermined, and a vital wil be reflected in the governor's judicial and balances. The approach has been emu- check on representative government appointments. lated to varying degrees in nearly all fifty would be lost. The Constitution of the United States of state constitutions. For these reasons I oppose efforts to America invests in the president the power In 1984, Utahns approved an amendment subject the nominating and retention pro-

February 1994 17 cess to more political influences. Simi- ential members of the commission, I feel it current system goes too far in limiting the lady, I wil oppose any attempt to provide is important that their views reflect the phi- governor's legitimate input into the pro- for a legislative recall of a sitting judge for losophy the voters espoused when they cess. My goal is to broaden, not weaken, reasons short of those that would justify elected the governor. the nominating commission's roles in impeachment. I believe the Bar can play an important screening for merit. While I wil resist any attempt to alter role in the nominating process. The Bar In this spirit I intend to propose the fol- i the retention process, the current com- Association is well positioned to ensure that lowing adjustments: It position of the judicial nominating appointees to the judicial nominating com- 1. Instead of the Bar Association directly commission has created the perception mission meet all of the professional and naming two members to the nominating and, to some extent, the reality of a closed ethical qualifications. I would like to main- commission, the governor would select at system limited to those with deep affilia- tain an open dialogue with the Bar, least three Bar members to serve on the tions to the Bar and, in the case of receiving nominations for commission nominating commission. One of the three appellate appointments, to sitting members members and consulting with the Bar on may be a judge. The governor wil receive of the judiciary. potential commission members. recommendations for commission mem- As currently constituted, the commis- However, I am concerned about the bel'S from the Bar and will consult with the sion has seven members. According to the power that the Bar Association has in Bar to verify the commissioners' good controlling statute, the Bar Association directly naming members of its association standing as Bar members. appoints two, the governor appoints four, to the nominating commission. Of the hun- 2. The chief justice will not be precluded and the chief justice of the Utah Supreme dreds of boards and commissions I oversee, from, but wil not necessarily serve on nor Court appoints one who serves as chair. In I am not aware of any non-governmental chair the judicial nominating commission. the past, the chief justice has appointed association that has the unchecked power to 3. The governor will appoint the chair himself to serve on every nominating appoint individuals from the same associa- person of the nominating commission commission. tion to a public commission. To ensure from among the membership. Although the governor appoints the sound public policy, the Bar Association 4. The empaneling of a judicial nominating majority of the commission, he or she is should be no exception. commission should be an executive branch prohibited by law from naming members As prescribed in the Constitution, the function. The executive diector of the Com- of the Bar or the judiciary. Judges and selection of judges should be an executive mission on Criminal and Juvenile Justice lawyers, because of their knowledge and branch function. A governor should be able shall serve as secretary to the commission. legal stature, are inevitably the most influ- to appoint individuals to a judicial nominat- 5. On appellate or supreme court appoint- ential members of the commission. The ing committee who share the views the ments, a judge may not serve as a member non-lawyers on the commission tend to governor was elected to advance. of any judicial nominating commission rely heavily on the subjective perceptions I am committed to preserving the merit that is nominating a replacement to that of the lawyers and the chief justice about system. I have no desire to appoint judges judge's paneL. the qualifications necessary to be a good who are not competent or who are otherwise judge. Because lawyers are the most influ- unworthy of the bench. I do believe that the

. UTAH LEGAL SERVICES, INC. . PRESENTS MONDAY BROWNBAG LUNCHEONS Utah Legal Services, Inc. announces that each Monday it wil conduct free brownbag luncheons on various legal topics. These topics wil be published each month in the Utah Bar Journal. The luncheons wil begin promptly at noon and end at 1:00 p.m. The Utah State Bar has donated the space in the Utah Law and Justice Center (645 South 200 East) so seating is limited. All those who desire to attend must contact Mel Jones at 328-8891 or 1 -800-662-4245 one week in advance. One hour CLE credit. (Subject to change without notice.) The topics for February and March are: FEBRUARY MARCH February 7 - Low Income Shelter Resources/Facilities March 7 - UAP A Overview - Changing Under Consdieration February 14 - Ethics March i 4 - Easements/Adverse PossessionIoundary Disputes February 21 - Holiday - President's Day March 21 - Negotiations . February 28 - Waranty of Habitat & Fit Premises Law March 28 - Housing Problems for Migrant Workers . 18 Vol. 7 No.2 " I

Basic Utah Water Law

By 1. Craig Smith

INTRODUCTION J. CRAIG SMITH is a shareholder in the include instream flow to enhance fishery, There is, perhaps, no area of American Salt Lake City finn of Nielsen & Senior. He natural stream habitat and recreation.6 law which evokes the lore of the West concentrates his practice in Natural Once appropriated, the right to use water more than water law. The scarcity of water Resource and Environmental Litigation, exists only so long as the beneficial use in the West has been dramatized in dozens and represents a number of local govern- continues. A term which must be under- ments and redevelopment agencies. He of books and movies from Shane to Chi- stood in connection with beneficial use is formerly was a full-time municipal attorney the "duty" of water. This is the concept natown to The Milagro Beanfield War. with Park City. The body of law that developed in the irri- that only so much water may be benefi- gated river basins and mining camps to cially used for any authorized purpose. For allocate this scarce and valuable resource example, the "duty" of irrigation water is, each second. One CFS for an entire year is unique to the arid states of the West, depending on location, around 3 acre-feet yields 235,905,363 gallons or 723.97 acre feet. and has long been shrouded in mystique. per year. Only this much water may be beneficially used for irrigation of an acre As an installment of a new "How To" APPROPRIA TION DOCTRINE series in the Utah Bar Journal, this article The basis of Utah water law is the appro- of land. will discuss basic Utah water law. The priation doctrine which first evolved in If there is a failure to use water for five goal of this article is to acquaint the reader Colorado. This doctrine prescribes that all years, the right is forfeited.? Water rights may also be abandoned, and, prior to with the major principles of water law. water not already appropriated, i.e., not Water law is, in essence, a form of being used, is available for use by any per- 1939, water could be adversely possessed by seven years of adverse use of the property law and thus is best understood in son for a "beneficial" purpose.' The that context. 1 It seeks to allocate a finite water. 8 A large and important exception to i appropriator does not "own" water, but the state water law principles discussed in and unique resource. There are two stan- rather holds the right to perpetually use the this article are water rights held by or dard measures of water that are used water appropriated: Courts have long rec- i interchangeabIy.2 The first is acre feet. ognized this right of use, once it is reserved for the federal government. Fed- This is a measure of volume which has its eral water rights are not subject to many i perfected, as a property right.5 This property aspects of state law. They cannot be for- origins in irrigation. An acre foot is the right may be conveyed separately by deed, amount of water necessary to cover one or transferred by shares of stock, or if feited or lost through non-use and may acre of land with one foot of water. This exist without any record or documentation! appurtenant to land, with the land. A critical aspect to understanding the equals 325,851 gallons. The second stan- Beneficial uses are generally considered appropriation doctrine is recognizing its dard measure is cubic feet per second to be those uses that promote economic (CFS). This is a measure of flow. A CFS activities. In recent years this concept has slavish adherence to priority. The princi- or "second foot" is the number of cubic expanded, in limited circumstances, to ple of priority fully protects beneficial feet of water that passes a certain point users in order of seniority of their use.

February 1994 19 Whoever has the first or prior water right adjudications where the rights in an entire water, change the nature or place of use of 15 is entitled to receive their entire allocation drainage are determined by Court Decree, water, and extensions of time to resume of water prior to any junior appropriator distribution of water,16 dam safety,17 and use are advertised by publication and "any receiving any water. Need or relative regulating water well drilers,18 stream alter- interested person" has the right to protest importance of various uses is not a consid- ationsl9 and geothermal power.20 In many the approval sought in the Application. If eration. Obviously, this becomes of drainages which are fully appropriated, or in a protest is made, a hearing is generally particular significance during times of other words, where all of the available held on the Application and protestants are ..~ drought when a junior water right holder water has been put to beneficial use, a major given an opportunity to be heard. III may not receive any water. During the function of the State Engineer is to preside The State Engineer has designated that

recent drought, river commissioners on over applications for changes in use or all adjudicative proceedings be informal \ various drainages ordered that holders of points of diversion of water. A catalyst for under the Utah Administrative Procedures water rights with lower priority dates such applications is often urbanization, Act.22 Special regulations govern informal !/ refrain from taking any water. As the where irrigation water is sought to be proceedings before the State Engineer. drought worsened, the prohibition date changed to domestic or municipal use. In These regulations are found at R655-6 of moved back into early pioneer times, leav- addition, the State Engineer maintains pub- the Utah Administrative Code. At State ing more and more water users without lic records of water rights, applications, Engineer hearings, evidence will often be any water at all. deeds and assignments.21 Working under the given in the form of a proffer. Hearsay is State Engineer are subordinate engineers admissible. Any aggrieved party may, PRACTICE BEFORE over appropriations, distribution and adjudi- within thirty days,i3 appeal the decision of THE STATE ENGINEER cations, dam safety, and finally, special the State Engineer to the District Court in The ultimate goal of the appropriation investigations. the County where the water is located. The doctrine is to put all water to beneficial review by the District Court of an informal use. Unappropriated water is available at hearing is de nOVO.24 no cost to anyone who can use it benefi- However, approval of an application is cially. To accomplish this goal and to "Water law is, in essence, not the final step. For example, an applica- administer water rights, an extensive legal tion to appropriate is merely a hunting and administrative system has been put a form of propert law and license for water. Once an application to into place by the State. Title 73 of the thus is best understood in that appropriate water is approved, the appli- Utah Code is the Water and Irrigation vol- context. It seeks to allocate a cant must build the diversion works and ume. Since water is the property of the actually divert the water and put it to the public, water rights in Utah are adminis- finite and unique resource. " approved beneficial use. A Proof of tered by the state, subject to federal Appropriation verifying that the water sovereignty. The administrative body right has been diverted must be filed with established by Utah statute to regulate the State Engineer within five years of the water for the State is the State Engineer's The State Engineer has divided Utah into approval of the application, or an exten- office, also known as the Division of seven regions with regional engineers over- sion my be sought upon a showing of Water Rights.IO The State Engineer, Robert seeing each region. Regional offices are diligent progress.25 Only a licensed engi- L. Morgan, is the director of the Division located in Logan, Vernal, Price, Richfield neer may submit the proof of of Water Rights in the Department of Nat- and Cedar City. The engineer for each appropriation. And, only after a proof of ural Resources.11 region is known as the Area Engineer. All appropriation is filed, examined and Since 1903, when statutory administra- other offices, including two regional offices, accepted by the State Engineer wil a cer- tive procedures to appropriate water were are located in the State Engineer's main tificate of appropriation be issued by the first established, the exclusive method of office in the Depaitment of Natural Resources State Engineer. This is the final step in obtaining a new surface water right, (and Building at 1636 West North Temple, Suite obtaining and perfecting a water right. since 1935 an underground water right) is 220, Salt Lake City, Utah 84116. The tele- through filing an application with - and phone number is (801) 538-7240. TRANSFER OF WATER RIGHTS ultimately obtaining a certificate from the Practice before the State Engineer is best So long as there is not a change in the State Engineer.12 Prior to 1903, the method described as an informal administrative nature of use, point of diversion, period of x,' ii for obtaining the right to use water was by practice. Applications to appropriate water, use, or place of use, transfer of ownership

putting the water to beneficial use. These change the use of or point of diversion of of water rights does not require approval II li water rights are known as diligence claims water, extend the period of time to resume of the State Engineer's office. However, and require beneficial use prior to 1903. In use of water, exchange water, and segregate because of the various ways water. rights order to memorialize a diligence claim, water, among others, are all initiated by may be held, transfers must be accom- which is also known as a water user claim, completing and filing pre-printed forms, plished in certain specified ways. For a written claim must be filed with the along with a filing fee. Assistance in com- example, water may be appurtenant to and State Engineer. 13 pleting the forms is readily available from transferred with the land, transferred In addition to appropriation,14 the State the staff of the State Engineer. Ceitain applica- separately by deed, or transferred via Engineer is also responsible for general tions, including applications to appropriate shares of stock.

20 Vol. 7 No.2 The first step in any transfer of water the water rights in a paricular drainage. For represented by shares of stock. rights, as in land, is determining the status example, the Weber River had been adjudi- 2Utah Code Ann. §73'1-2 (1989). of the title. However, unlike land, it is not cated. The quantity and priority dates of 3See Utah Code Ann. §73-1-3 (1989). 4See J.JN.P. Co. v. State, etc., 6S5 P.2d 1133 (Utah 1982), possible to obtain either title reports or most water rights in the Weber River for a discussion of the ownership issue. title insurance for water from a title insur- drainage are found in the general adjudica- SA water right is entitled to legal protection including due ance company. Title insurance companies, tion decree entered by the Court. There are process protection. See Hunter v. United States, 388 F.2d 148, IS3 (9th Cir. 1967). perhaps sensing the title complexities and many adjudications that, while not com- 6In Utah, only the Division of Wildlife Resources and State pitfalls inherent to water rights, steer a plete, are ongoing and affect water rights in Parks may hold an instream flow right. Utah Code Ann. §73- wide berth. Thus, determining title and those drainages. It should always be deter- 3-3(11) (1993 Supp,), issuing any opinions as to title of water mined whether an adjudication has been 7Utah Code Ann. §73-1-4 (1989). 8Utah Code Ann. §73-1-4 and §73-3-1 (1989). See also rights fall squarely on the shoulders of completed or is ongoing which may affect Smith v. Sanders, 189 P,2d 701 (Utah 1948). lawyers. The source of "insurance" is the the water right in question. 9Federal water rights and the implied reservation of water by professional errors and omissions cover- Finally, if the water right is represented the federal govemment or Indian tribes are complex suhjects outside the scope of this article. Many articles and treatises age of the lawyer. by shares of stock in an irrigation or mutual have been written on these suhjects. There are several sources to check in water company, the records of the company lOSee Utah Code Ann, Title 73, Chapter 2 for duties of State researching the status of title or rights to should be checked. Company records Engineer. water. First is the County Recorder's should, if accurate, indicate owners of all 11 Utah Code Ann, §73-2-1.2 (1989). 12Utah Code Ann, §73-3- 1 (1989). office. In many cases water is connected shares of stock issued or transferred. The 13Utah Code Ann. §73-S-13 (1989). See East Jordan Irriga- to the land where it is used typically for validity of the ownership of shares of stock tion Co. v. Morgan, 218 Utah Adv. Rep. 62 (Aug. 5, 1993), irrigation. This water is considered appur- can be readily ascertained. The company for a recent discussion of the two methods to appropriate water. tenant water, and its title is automatically issuing the stock can also advise as to 14Utah Code Ann. Title 73, Chapter 3 (1989), transferred with the land unless specifi- unpaid stock assessments, and potential ISUtah Code Ann. Title 73, Chapter 4 (1989), cally excluded.26 Title to appurtenant water marketability or value of the stock.27 16Utah Code Ann, §73-S-1 to 5 (1989). is determined, in part, in the same fashion 17Utah Code Ann, Title 73. Chapter Sa (1993 Supp.). as title to land. Research of land title, so long CONCLUSION 18Utah Code Ann. §73-3-22 to 26 (1989). as the water has not been lost through non- There are numerous areas of water law 19Utah Code Ann. §73-3-29 (1989), use or severed from the land, wil reveal omitted or only mentioned briefly in this 20Utah Code Ann, Title 73. Chapter 22 (1989). the title of appurtenant water. Each link in article. Many of these areas, such as water 21Utah Code Ann. §73-1-IO, §73-2-11, and §73-3-18 (1989). the chain of title should be examined to quality, federal reserved water rights and 22Utah Code Ann, Tite 63. Chapter 46(h) (1989). verify that the water or some portion of it security interests in water rights are too 23Utah Code Ann. §63-46(h)-14(3) (1989). has not been severed from the land. Loss complex to be dealt with here. Hopefully, 24Utah Code Ann. §63-46(h)-lS (1989), of the water through forfeiture or aban- this discussion of basic Utah water law will 25Utah Code Ann, §73-3-12 (1989). donment wil obviously not be of record, help the reader to recognize water law 26Utah Code Ann. §73-1-1 1 (1989). but must be ascertained by other means. issues which would otherwise go unnoticed. 27 A recent Utah Supreme Court ruling held that the corpo- The County Recorder also has a file of rate structure of mutual water companies prohihits individual 1See for example. Utah Code Ann, §73-1-lO (1989). which shareholders from filing a Change Application without the conveyances of water without land. While requires that all water rights he transferred by deed in substan- water company's approval. East Jordan Irrigation Co. v, practices vary from county to county, they tially the same manner as real estate, except for water rights Morgan, 218 Utah Adv. Rep. 62 (Aug. S, 1993). are typically found in a "water" or "mis- cellaneous" index. This index should be checked whether or not the water is believed to be appurtenant to land. An oth- erwise unkown severance of water rights NOTICE which were formerly appurtenant to land may be discovered by checking this index. It is the attorney's A second and even more important responsibility to notify source in determining title is the State Engineer's office. The State Engineer the Bar, in writing, as I' maintains an index of title to all water soon as an address has rights filed with or approved by the State Engineer. Additionally, pre-1903 diligence changed. Send all claims, if memorialized, are on record changes to: A tree there. The records of the State Engineer nightma. should always be carefully reviewed. Utah State Bar It should also be determined whether a Don't make bad dreams come true. Please be careful in the forest. general adjudication has been held or is ATTN: Arnold Birrell ongoing in the drainage where the water 645 South 200 East #310 right exists. A general adjudication is a Salt Lake City, Utah 84111 Remember. Onlye you can prevent forest fires court proceeding which determines all of

F ebrumy 1994 21 1994 Mid-Year Meeting Program ( ) Indicates Number of CLE Hours Available THUSDAY, MARCH 10,1994 1: 15 p. m. Golf Tournament - Green Spring Golf Course 6:00 - 8:00 p.m. - Registration and Opening Reception Hotel 2:00 p.m. Tennis Tournament - Green Valley Tennis Courts Lobby/Sabra Rooms SPONSORED BY: Jones, Waldo, Holbrook & McDonough 6:30 p.m. Reception - Holiday Inn Lobby FRIDAY, MARCH 11,1994 SPONSORED BY: The Michie Company 7:00 p.m. Dinner - Holiday Inn Sabra Rooms 7:00 a.m. Utah Trial Lawyers Association Breakfast Tort Speaker: Gang Uprising -- Five Ways to Make A Update - Hilton Hotel Difference - Detective Isileli (Izzy) T. Tausinga, Salt 7:30 a.m. Registration/Continental Breakfast - Hotel Lobby Lake Metro Gang Unit SPONSORED BY: First Interstate Trust Division i SATURAY, MARCH 12,1994 8:00 a.m. Opening General Session - Sabra Rooms 7:00 a.m. Fun Run ~ Welcome and Opening Remarks H. James Clegg, President 7:30 a.m. Registration/Continental Breakfast - Hotel Lobby SPONSORED BY: Prince, Yeates & Geldzahler Douglas J. Parry, Chair, 1994 Mid-Year Meeting 8:10 a.m. Keynote Speaker: America's Children at Risk - The 8:00 a.m. Ethics General Session: Is It Real or Is It Unmet Legal Needs of Children - Sabra Rooms (1) Unauthorized Practice of Law - Sabra Rooms (1) Toni Marie Sutliff, Northwest Pipeline Hon. Rosemary Barkett, Chief Justice, Florida Supreme Court SPONSORED BY: Legal Assistats Association of Uta SPONSORED BY: The Litigation Section 9:00 a.m. Tennis Clinic - Vic Braden Tennis College 9:00 a.m. New Issues/New Challenges/New Era for the Utah 9:00 - 9:25 a.m. Break - Hotel Lobby Attorney Generalis Office - Sabra Rooms (1) SPONSORED BY: Rollns Hudig Hall of Utah, Inc. Jan Graham, Utah Attorney General 9:25 - 10: 15 a.m. Breakout Sessions: (1 each) 9:50 -10: 15 a.m. Break - Hotel Lobby 7 What Happened to My Waste on the Way to the SPONSORED BY: Fabian & Clendenin Dump? or Why I am Liable to Clean Up An Approved 10:15 - 11:05 a.m. Breakout Sessions: (1 each) Recycling Facilty, and Other M~or Developments in 1 A Practical Discussion of Section 1031 Like-Kind the Environmental Area - Sabra FG Kevin R. Murray, Parry, Murray, Ward & Cannon Exchanges - Cinema 6 Theaters David D. Jeffs, Jeffs & Jeffs 8 What to Do When You Receive that Call at 1:00 a.m. from Your Neighbor in Jail - Sabra ABC 2 Representing Children in Utah - How Could a Kid Possibly Need a Lawyer and What's In It For Me? - Gregory G. Skordas, Salt Lake County Attorneys Office Sabra ABC 9 Legislative Update - Cinema 6 Theaters L.G. "Buz" Cutler, Sole Practitioner John T. Nielsen, VanCott, Bagley, Cornwall & David E. Littlefield, Third District Juvenile Court, McCarthy Guardian Ad Litem Hon. Sharon P. McCully, Third District Juvenile Court 10:15 - 10:30 a.m. Break - Hotel Lobby Kelle F. Williams, Corporon & Wiliams 10:30 - 11:20 a.m. Breakout Sessions: (1 each) 3 What Every Lawyer Should Know About Patents, 10 The Americans with Disabilties Act and Employee Trademarks & Copyrights - Sabra FG Benefits - Cinema 6 Theaters Alan K. Aldous, Trask, Britt & Rossa W. Mark Gavre, Parsons Behle & Latimer

Berne S. Broadbent, Broadbent Law Offices 11 Distributor Relationships: What You Don't Know I , Craig J. Madson, Madson & Metcalf CAN Hurt You - Sabra FG i C. Jeffrey Thompson, Sole Practitioner 11:00 a.m. Golf Clinic - Green Spring Golf Course I 11:05 - 11:20 a.m. Break 12 Criminal Justice Act Appointments in Federal Court - Sabra ABC 11 :20 a.m. - 12: 10 p.m. Breakout Sessions: (1 each) Hon. Samuel Alba, United States District Court 4 Federal and State Health Care Legislation and Health 11:20 - 11:35 a.m. Break I Care Refonn - Cinema 6 Theaters i Penny S. Brooke, Assistat Dean of Nursing University 11:35 - 12:25 p.m. Breakout Sessions: (1 each) II of Utah 13 Financial Statement Fraud: How They Do It - Sabra Elizabeth King, Uta Attorney General's Offce ABC Shannon Stewart, Jones, Waldo, Holbrook & Alan V. Funk, Coopers & Lybrand McDonough 1 Wiliam Stiling, Parsons Behle & Latimer 14 Real Property Guaranties - Cinema 6 Theaters 'i Kathleen H. Switzer, GTE Health Systems Thomas G. Berggren, VanCott, Bagley, Cornwall & i McCarthy 5 Education Law Update - Sabra FG R. Stephen Marshall, VanCott, Bagley, Cornwall & (to be announced) McCarthy 6 Flesh and Bone: Domestic Torts, Divorce and Lawyer 15 Estate Planning For Lawyers - Sabra FG Malpractice - Sabra ABC Thomas Christensen, Jr., Fabian & Clendenin Frederick N. Green, Green & Berry Clifford C. Ross, Cohne, Rappaport & Segal 12:25 p.m. Meetings Adjourn 12: 10 p.m. Meetings Adjourn for the Day 1:00 p.m. Mountain Biking Tour - Snow Canyon ff* p, ,w ,UiAi!¥,_,. "',,',,' H"" ,',,_, ii m~ kilBH i ut fu,imiiWiMiØ $4",& JUlie,11985j?, toreR,~oesent, Caren S~lT'N ~o two additional checks from the second was'seyerelyinjured in an autoaccInel1t qn ins\l¡:ancecompany il1 the àmoiint of November16, 1983. $27,847.88 and $13,381.88 to which he 'j ADMONITION On.September23,1985, just three endorsed"the name of his client and kept ~..~ attorney' was Adnioni~~ed for months after being'retained, Mr.Schwenke aUofthefunds.forhis own use. settled his client's personal jnjuryçIaim for Mr. S'chwenke's conversion of this èh¡irgingan excessive fee in. violation of il ~ ,Rule .i .5(¡i),EEES of the Rules ófProfes-' aRPiooximately $93,539.48 andmisapprowi- money has prevented his.dlient from siorfàl Conduct based upon ated most of the settlement proceeds, obtaining the rehabilitative surgery she recommendation. by a Screening Panel of $65,049.52, to his own use. needs a~d she remains permanently dis- thê Ethics and Discipline Committee. The On SeRtember ,1989,ML Schwenke abled: Due to her inability to obtain this attqrney was retained toreRresent a client appeared in the Third JuClicialDistrictCourt surgery her condition wilgef,progres-

a personal injury matter involving the before Judge John A. Rokich al1d stipulated sively worse until she becomes totally cHel1t's son ",ho was struck by an automo- to a $100,000.00 judgment against himself disabled and. unable to walk. (Mr. bile. When it was discovered thatthe based on fraud, not dischargeable in Schwenke filed a Petition for Rêhearing motorist was uninsured the attorneyJiled a bankruptcy. on December 29, 1993. On January 18, claim against the client's own .insurance On March 2, ,1992, a Disciplinary Hear- 1994, the Supreme Court denied his peti-

company and. collected policy limits of ingPanel of the Ethics and Discipline tion for rehearing)

$100,000.00 under the uninsured motorist Committee found that Mr. Schwenke settled portion of the poHcy. The attorney kept his client's personal injury claim with two REINSTATEMENT one-third as a fee. A fee arbitration panel insurance companies for a total of Richard S. Clark, II has filed a Petition for found this was an improper fee in that the $93,539.48. However, Mr. Schwenke told Reinstatement to practice law. Any person contingency fee agreement between the his client that the most he could get for her who desires to support or oppose this peti- attorney and the client did not include was $26,763.75 with which he would pur- tion should fie an opposition or recovery from the client's own insurance chase an annuity providing her $250.00 per conCUllence with the Fourth Judicial Dis- company. Therefore, the attorney was month for life. Instead of purchasing the trict Court, Civil No. 930400678CV entitled only to the reasonable value of the annuity Mr. Schwenke conveited the funds to within 30 days of the date of this publica- services rendered. his own use. He made some $250 payments tion. It is also requested that a copy of the to his client with his own money tellng her opposition or concurrence be sent to the PROBATION the payments were from the annuity. Office of Attorney Discipline, 645 South On November 8, 1993, the Utah Subsequently, Mr. Schwenke received 200 East, SLC,UT 8411 1. Supreme Court aRRroved the Recommen- dation of a Hearing Panel of the Ethics and tJiscipline Committee that an attorney be placed on Probation for one year for vioIat,ing Rule 13, SAFEKEEPING PROPERTY of the .RuIes of .Professional Conduct by negligently retaining fee pay- ments to the attorney's law firm, which YOU JUST MAY the attorney believed were a personal BE bonus, and for negligently delivering client funds held in trust to a third party A GENIUS! thereby renClering the funds unavailable to the client. The Order of Discipline requires the attorney to reRay the client And all you did was become an attorney and an agent of Attorneys' TItle Guaranty Fund, Inc. l within six months of the start of the proba- tionary period. By becoming a member of Attorneys' litle, you can begin to generate a new and substantial source of income through the issuance of title insurance. Attorneys' TItle has new programs and services ~I which make it easier than ever for attorneys to build their real estate practice DISBARMENT We may not make you a genius, bul On December 1, 1993, the Utah Attorneys' TItle can show you how Supreme Court disbarred A. Paiil to improve your practice and increase your income Attorneys' Schwenke from the practice of law for by closing real eslate transactions. Let us violating Rule 1.3, SAFEKEEPING OF show you how! PROrERTY, and Rule 8.4(c), MISCON- Call 32!H229 Title Guaranty DUCT, of the Rules of Professional 645 South 20 East, Suite 102 5.1tLikeCiiy,Ulah 84111 Fund, Inc. ~onduct.Mr. Schwenke was retained in

February 1994 23 Scott M. Matheson Award Building For Success An Advanced Legal In 1991, the Law-Related Education age effective law-related education pro- Management Seminar and Law Day Committee of the Utah State grams in Utah schools and communities, Bar presented the first annual Scott M. such programs having increased communi- The Association of Legal Administra- Matheson A ward to Greg Skordas and the cation and understanding between students, tors (ALA) and Hildebrandt, Inc., the law firm of Van Cott, Bagley, Cornwall educators and those involved professionally world's largest law firm management con- and McCarthy. The second annual award in the legal system. sulting company, proudly announce a went to Ogden attorney Barry Gomberg APPLICATION PROCESS: Nomination unique one-day seminar featuring and the law firm of Fabian and Clendenin. forms may be obtained from and nomina- advanced-legal educational programming Kevan F. Smith and the law firm of Ray, tions may be submitted to the: in your area. You don't have to travel far Scott M. Matheson Award Quinney and Nebeker received the award to attend an innovative seminar that helps in 1993. Currently, the commttee is accept- Law-Related Education and you run your law firm more effciently and ing applications and nominations for the Law Day Committee effectively. We're making it simple by fourth annual Scott M. Matheson Award. Utah Law and Justice Center bringing the experts directly to you. PURPOSE: To recognize a lawyer and Box M-2, 645 South 200 East The seminar wil address many topics a law firm who have made an outstanding Salt Lake City, Utah 84111 which include: contribution to law-related education for Phone: 322-1802 · Interrelationships of Practice Manage- youth in the State of Utah. Included in the nomination should be a ment, Compensation and Marketing - CRITERIA: Nominations and applica- cover letter, a one page resume and the Rethinkng Partner Compensation Plans tions will be accepted on behalf of nomination form. The form describes the . Techniques to Measure and Analyze individuals or law firms who have: following criteria to be used by the selection Financial Performance 1. Made significant contributions to law- committee in evaluating the nominee: . Lessons to be Learned from Troubled related education for youth in the State of · materials which demonstrate the nomi- Firms Utah, such contributions having been rec- nee's contributions in the law-related youth · Impact of Pricing on Profitability and ognized at local and/or state levels. education field; Partner Compensation 2. Voluntarily given their time and . copies of news items, resolutions or Seating is limited to 50 people per ses- resources in support of law-related educa- other documents which evidence the nomi- sion and wil be available on a first-come tion, such as serving on planning nee's contribution to law-related education basis. The ALA and American Bar Asso- committees, reviewing or participating in for youth; ciation member cost for the entire day is the development of materials and pro- . a maximum of two letters of only $125.00 for the first person, $100.00 grams and participating in law-related recommendation. for additional paricipants from your orga- education programs such as the Mentor/ All materials submitted should be in a nization, or $150.00 for non-members. Mid-Mentor Program, Mock Trial Compe- form which wil allow for their easy repro- tition, Volunteer Outreach, Judge for a The fee includes all of the classes listed duction for dissemination to members of the above plus lunch, refreshments and ses- Day, or other court or classroom programs. selection committee. Nominations must be sion materials. 3. Participated in activities which encour- postmarked no later than March 15, 1994. For more information and to register,

contact Diane Hinn, ALA Headquarters at I i (708) 816-1212. ! ¡ii Date: March 15, 1994 III UTAH STATE BAR Location: To Be Announced II

Post-Judgment i 1994 Mid. Year Meeting Interest Rate

Pursuant to Utah Code Ann. § 15-1-4, March 10 · 12, 1994 the post-judgment interest rate for judg- I ments entered between January 1, 1994 81. George Holiday Inn and December 31,1994 is 5.61%.'This rate does not apply to judgments based on contracts specifying some other interest rate agreed upon by the parties orto judg- See you there! ments for which a statute specifies another rate of interest.

¡ 24 Vol. 7 No.2 Ii

U UNITED STATES BANKRUPTCY COURT DISTRICT OF UTAH POSITION ANNOUNCEMENT

Position: comparable academic achievement. programs. Law Clerk to the Honorable Glen E. Clark Appointment: The selection and appoint- · Paid sick leave of up to 13 days per year. . Ten paid holidays per year. ¡ United States Bankuptcy Judge ment will be made by the United States :\ Starting Salary: Bankruptcy Judge. · Credit in the computation of benefits $28,648 to $64,218, depending on Applicants should send resume and for prior civilian or military service. qualifications transcript. Applicants should also pro- Starting Date: August 1994 or earlier vide a writing sample and references. EQUAL EMPLOYMENT Application Deadline: March 15, 1994 Applications should be made to: OPPORTUNITY Qualifcations: Chief Judge Glen E. Clark The court provides equal employment 1) One year of experience in the practice United States Bankuptcy Court opportunity to all persons regardless of of law, legal research, legal administra- 350 South Main Street, Room 365 their race, sex, color, national origin, reli- tion, or equivalent experience received Salt Lake City, Utah 84101 gion, age or handicap. after graduation from law schooL. Sub- stantiallegal activities while in military . EQUAL OPPORTUNITY EMPLOYER · ABOUT THE COURT service may be credited on a month- The United States Bankruptcy Court, for-month basis whether before or after BENEFITS SUMMARY District of Utah, is a separately-adminis- graduation; Employees under the Judicial Salary Plan tered unit of the United States District OR are entitled to: Court. The court is comprised of three 2) A recent law graduate may apply pro- · Annual grade or within-grade increases bankruptcy judges and serves the entire vided that the applicant has: in salary, depending on performance, tenure state of Utah. The Clerk's office provides a) graduated within the upper third of and job assignment. clerical and administrative support for the his/her class from a law school on · Up to 13 days of paid vacation per year court, which conducts hearings daily in the approved list of the A.B.A. or for the first three years of employment. Salt Lake City and monthly in Ogden. the A.A.L.S.; or Thereafter, increasing with tenure, up to 26 b) served on the editorial board of the days per year. law review of such a school or other · Choice of federal health insurance

Attribution Correction WANTED: Paul Evans David B. Dellenbach Mock Trial Judges Mr. Evans joined Mr. Del1enbach received his B.A. in The Law Day and Law-Related Educa- Snow, Christensen & tion Committee of the Utah State Bar is Marneau in 1992 and English with a minor 100king for a few (200) great lawyers and practices in the area in Chemistry from the judges and a few more (80) non-lawyers to of intellectual prop- University of Utah judge junior and senior high school mock erty. He is registered (magna cum laude, Phi Beta Kappa) in trials through Utah from March 21 to practice before the through April 22. The Mock Trials are 1989. He turned down a scholarship to U.S. Patent & Trademark Office. held in actual courtrooms and are judged medical school to attend the University of Mr. Evans received his B.S. in by a panel of three (3) persons; a presiding mechanical engineering from the Univer- Utah College of Law where he served on judge (lawyer/judge), a panel judge sity of Utah (cum laude) in 1986. He the law review and eamed his Juris Doctor (lawyer/judge), and a community repre- earned is Juris Doctor degree from the degree in 1993. Mr. Dellenbach joined sentative. University of Utah College of Law in 1992. Snow, Christensen & Martineau in 1993 If you'd like to have some fun and be a and practices in the areas of intellectual hero, please complete the pull-out form at property prosecution and litigation. the end of the magazine. The names of Paul Evans and David B. Dellenbach were inadvertently omitted as co-authors of the article entitled An Intellectual Property Primer: What Every Attorney Should Know About Patents, Trademarks and Copyrights, by Bryan A. Geurts, which was published in the January 1994 issue of the Utah Bar Journal. We regret any confu- sion this may have caused our readers.

F ebrumy 1994 25 ~ I. i ~.. Ii \, \, ~.....t.~; ,.;.....-.'...... d~- - ,~',\

fir:

Breaking the Cycle of Domestic Violence

By Keith A. Kelly Past-President, Utah Young Lawyers Division Chairperson, Delivery of Legal Services Committee

protective order. Just knowing her abusive abuse. The Legal Needs Assessment cur- The Utahcil estimates Domestic that Violence each year Coun-55,000 husband was in town made her wary. rently being carried out by the Delivery of Utah women are abused by an intimate There are no simple solutions to the Legal Services Committee indicates that help partner. The Council reports that one in problems of domestic violence. But public for victims of domestic abuse is one of the ten women is abused by an intimate male education and legal intervention are vital in most important unmet legal needs in Utah. partner, and one-fourth of police officer breaking the cycle of abuse. Abused persons Just as every doctor ought to know first injuries wil occur while trying to break up must know about Utah's Cohabitant Abuse aid, every lawyer ought to know how to a family fight.' Act, which allows them to obtain ex parte handle a Cohabitant Abuse Act case. In 1990, the Utah Task Force on Gen- protective orders against abusers. See Utah Forms for such cases ought to be available der and Justice has added that a quarter of Code § 77-36-1 et seq. They need to know in every attorney's computer form file. couples in this country are in relationships about the network of shelters in Utah where A difficulty in handling such cases is in which violence has occurred more than victims of abuse can turn for help. They that they typically need emergency atten- once. The Task Force states that battering need to understand that our legal system has tion, which can interrupt the busy "is the single greatest cause of injury to improved the available responses for abuse schedules of volunteer lawyers. However, women, accounting for 20% of all visits victims. the Delivery of Legal Services Committee by women to emergency medical ser- The Bar has a vital role to fill in solving is working to develop ways volunteer vices."2 The Task Force also reports that this problem. For several years, the Legal members of the Bar can handle such cases "(eJighty percent of the women served by Aid Society of Salt Lake ("LAS") has han- without disrupting their schedules. Utah's shelters were physically abused, dled most Cohabitant Abuse Act Some ideas we are pursuing include and half of those were injured seriously proceedings in Salt Lake City, responding setting up a statewide SOO-number "hot enough to require medical attention."3 within 24 hours for persons reporting abuse. line" for victims to call to receive basic Attorneys who have represented bat- However, LAS Director Russell Minas legal guidance. Calls to that number could tered women understand the physical and reports that the increasing number of cases be transferred to different law firms on a emotional toll of abuse. Self-esteem and is straining the resources of the LAS. In rotating basis. The volunteer lawyers independence are typically shattered in an 1989, the LAS handled about 80% of all could remain in their offices at pre-set abusive relationship. And the abused per- Cohabitant Abuse Act proceedings in Salt times to handle phone calls. Other ideas son feels a continuing sense of fear. A Lake. Now, the LAS is able to handle only include having attorneys volunteer on a client in a pro bono case reported to me about 50% of those cases. In certain areas of given day to handle a group of court that she stil felt fear after months of sepa- Utah, no legal help may be available to indi- appearances after appropriate forms have ration and even after the entry of a gent persons who need protection from already been filed out. This could ease the

26 Vol. 7 No.2 burden for the LAS and Utah Legal Services. on volunteer attorneys. others in Court, we must take the lead in In addition, we need to make the sys- Finally, more needs to be done to edu- obtaining judicial intervention for the vic- tern more "user friendly" to victims. An cate the public about the domestic violence tims of domestic violence. If you have any idea being considered by the State Legis- problem. The Utah Women Lawyers and further suggestions for solutions or would lature is the use of a "kiosk computer the Young Lawyers Division have been like to volunteer, please do not hesitate to system," which would allow indigent vic- working together for many months to pro- call me at (801) 532-1500. tims to follow simple computer directions duce a series of video tapes to inform 1 Utah Domestic Violence Advisory Council, Pamphlet for filling out of Cohabitant Abuse Act victims of domestic violence about their "Working Together to End Domestic Violence" (undated), forms. After the victim follows a simple rights. Hopefully, the various courts in Utah 2Utah Task Force on Gender and Justice, Report to the Utah computer touch-screen procedure, the will make these tapes available for viewing Judicial Council, at 43 (March 1990). 31d. at "kiosk" wil print out the Cohabitant at court facilities. 44. Abuse Act papers for obtaining a protec- As lawyers, we have a vital role to fil. tive order. This could help ease the burden As the only persons licensed to represent

Child Safety is Focus of Needs of Children Ad Campaign NEVER SHAKE A BABY, NEVER!

By Michael Mower Young Lawyers Division

This vital message is currently airing young infants and children can also cause 99.5, KSL, KPCW, 107.5 FM and KSOP on several Utah radio and television sta- whiplash and brain damage, according to are currently broadcasting these messages. tions thanks to the combined efforts of April Barry of the Salt Lake City-County Other stations are also considering airing members of the Needs of Children Com- Health Department. these warnings. The "Never Shake a Baby. mittee of the Young Lawyers Division and To alert parents to the dangers of shaking Never!" public service announcements are the Child Abuse Prevention Council of their babies, the Needs of Children Com- scheduled to air throughout 1994. Ogden. These public service announce- mittee co-sponsored three television and Young Lawyers are optimistic about ments are an important part of a program radio public service announcements. Under their chance for success in reducing this designed to increase the awareness of par- the direction of Colleen Larkin Bell, com- type of child abuse. "While many parents ents and caretakers of newborn children mittee members contacted various media are not aware of the harm they can cause concerning the dangers involved in shak- outlets and urged them to run the twenty- by shaking their babies, statistics show 70 ing young children. second "Never Shake A Baby, Never!" percent of parents are less-likely to shake The dangers are quite reaL. In 1990, warnings. The response they received to this them once they are aware of the potential there were 12 deaths in Utah due to child campaign was strongly supportive. Televi- dangér involved," noted Needs of Chil- abuse; 6 of those deaths were a direct sion Channels 2, 4, 5, and 13 and radio dren Committee member David Barton. result of shaking. Tossing and shaking stations Rock 103, KBER, Oldies 94.9,

UTAH STATE BAR 1994 Annual Meeting June 29 - July 2, 1994 Sun Valley, Idaho

Hope to See you there!

February 1994 27 - VIEWS FROM THE BENCH ' "What Do I Know?"

By Judge Glenn K. Iwasaki Ii

"""X Then I was first approached by University of Nevada baseball team who :1 V V Judge Michael Hutchings to seemed to enjoy late evening and night write something for the Bar Journal, I practices in the hallway. Other than that, had been on the bench a grand total of the food was good and substantial, and if approximately one and one-half months. I one did not vigorously exercise and watch asked him what I could write about, and what they ate, additional pounds could be he indicated that it would be helpful to added with very little effort. advise lawyers who appear before me as I was very fortunate to attend the col- to my likes and dislikes since I had taken lege with six other newly appointed judges the bench. It seemed to me extremely pre- from the state of Utah. They included: sumptuous to even have formulated likes Judge Michael GIasmann, Judge Jon and dislikes in the brief time that I was on Memmott, and Judge Michael Lyon all the bench, and so I requested a continu- from the Second District; Judge Ben Had- ance from Judge Hutchings until after I field from the First District; Judge John had at least had an opportunity to attend Andersen from the Eighth District; and the National Judicial College. He kindly Judge Guy Burningham from the Fourth assented to my request and allowed me District. Altogether, the session was the opportunity to not only attend the JUDGE GLENN K. IWASAKI was attended by over 100 judges from almost National Judicial College, but also to appointed to the bench by Governor every state in the Union. The judges become accustomed to the "Views from Norman H. Bangerter in July 1992. He ranged from elected judges, both partisan the Bench" which is a totally different assumed the bench in August 1992. He and nonpartisan; appointed judges who perspective from that of a practitioner. graduated from the University of Utah stood for retention elections; and judges For those of you who were attempting College of Law in 1971. He was a prose- who were appointed for life. It was to get court dates before me between the cutor with the Salt Lake County extremely interesting to speak, especially Attorney's Office from 1974 to 1978; a period of April i 8 up to and including with the elected judges, as to how they ran Salt Lake Legal Defender from 1978 to May 7, 1993, I was attending the National their campaigns and the cost, expenses and Judicial College located on the campus of 1981; a partner in the law firm of Col- lard, Pixton, Iwasaki and Downes from ethical problems which mayor may not the University of Nevada at Reno, 1981 to 1985; and prior to his appoint- have been problems for them. A Japanese Nevada. In quoting from the i 994 catalog, ment to the bench, was again, a judge, Judge Tamura, was also in atten- the General Jurisdiction course is: prosecutor in the Salt Lake County dance and I had an especially rewarding . . . NJe's renowned introductory Attorney's Office from 1987 to 1992. His opportunity to speak with him at length as program for new judges who preside main area of practice had been in crimi- to the legal system in Japan, as well as the over felony trials and unlimited nallaw, with an emphasis on trial work. limited use of juries in that country. The jurisdiction civil cases. Includes an last week of the session included a group overview of substantive areas of the of Russian judges who had been touring law, including civil law and proce- lunch, and Friday from 8:00 a.m. until the United States, examining the different dure, evidence, criminal law and 12:00 p.m. They commenced and termi- aspects of the American judicial system in procedure, sentencing, handling of nated upon a ringing of bells and/or order to make changes and recommenda- juries, and more. Checklists, guide- buzzers. (Can you believe that?) While tions in the Russian court system. It was lines and procedures are explored to attendance was not taken, in order to extremely interesting to see them struggle enhance your learning experience receive your Certificate of Completion, you with the concept of juries and how it and to assist you in managing your must have attended all of the sessions. would be applied to their own administra- court and in making better and more Housing was provided through the Uni- tion of justice. comprehensive decisions immedi- versity Inn (a dormitory by any other In spite of the classwork and the inter- ately upon your return to the bench. name). During my collegiate years, I was esting and necessary topics of instruction, A must for the new judge! fortunate to avoid living in dormitories and the most important aspect of the session I found that to be exactly true. Classes so this experience was new for me. I did was to interact with all of the different were held Monday through Thursday from have the fortunate/unfortunate experience of judges from different jurisdictions, and to 8:00 a.m. until 5:00 p.m. with an hour for sharing my floor with the members of the gain their points of view as to common

28 Vol. 7 No.2 problems experienced by alL. Furthermore, keep his pipe lit in the most diffiCult of situ- times and what interesting ways my name the opportunity to be in close contact with ations; (5) Judge Burningham seemed to has been misspelled. It is not Glen, with the other Utah judges was invaluable in always come up with an insightful comment one "n"; Glenn, with middle initial "W", getting to know the judges and to be able during discussions; and last, but not least, "P", "R", "T"; nor is the last name Iwaski, to contact them, without hesitation, if the (6) Judge Glasmann has a keen interest in Kawasaki, a favorite of mine: Isawaki, occasion so arose. The State of Utah mathematical probabilities, combinations, Iwisiki; and I am not (with apologies to should hold its head high as to the quality permutations and was above all extremely the following), Paul F. Iwasaki, Kenneth i of judges who attended the National Judi- good company in the pursuit of other activi- Hisatake, or Kenneth Okazaki. All of the cial College. I found that the Utah judges ties that Reno, Nevada had to offer. foregoing at one time or another have \ were as competent, if not more so, than So, into the question of "What Do I appeared on pleadings. any other of the states' judiciaries which Know After Approximately a Year and I hope that my brief summary of the 1 were present. One-Half on the Bench and Attendance at National Judicial College has shown that Some personal observations about the the Judicial College?" I have found that cer- its course is an essential and important other Utah attendees: (1) Judge Memmott tain things such as being honest, being part of my judicial education, and my sug- is an exceptionally good tennis player and courteous, being concise, being profes- gestions for success in my court should has a great backhand; (2) Judge Lyon is sional, being prompt, being ethical, and not be taken too seriously. I take what I do remembered as doing work that was faxed having integrity all should go without say- very seriously, not myself. to him from his office during his stay at ing as to practitioners who appear before the college; (3) Judge Hadfield gave no me. One of the keys to successfully appear- quarter and asked for none on the basket- ing in my court is to get the name right! It ball court against much younger students is Glenn K. Iwasaki! That may seem a triv- during the free time activities that were ial matter to a lot of you Smiths, Youngs, provided; (4) Judge Andersen was able to Joneses, etc., but it is surprising how many

AAA Center for MEDIATION When you reach a stalemate let us help negotiate. We are pleased to announce that the following attorneys have joined our panel of commercial Emotions, conflicts, atttudes and mediators: hurt feelings often confuse the legal issues in a dispute. At Intermedius Alan C. Bradshaw, Esq. Steven G. Johnson, Esq. Group, Inc., we Holme Roberts & Owen Norbest, Inc. o Divorce, custody, specialize in helping family issues. o Civil and commercial disputing parties clarify Randy L. Dryer, Esq. Cherie P. Shanteau, Esq. disputes. the issues and reach Parsons, Behle & Latimer Suitter, Axland & Hanson o Employer/employee mutually agreeable coriicts. solutions. o Landlord/tenant, Dan W. Egan, Esq. H. Wayne Wadsworth, Esq. neighborhood disputes. All three Suitter, Axland & Hanson Ballard, Spahr, Andrews Intermedius Group & Ingersoll principals not only are trained mediators, we're attorneys as well, so we understand your needs and those Hardin A. Whitney, Esq. of your clients. Moyle & Draper

Give us a calL. Let's talk about how we can work together. American Arbitration Association 645 South 200 East, Suite 203 · Salt Lake City, UT 841 1 I Intermedius 801/531-9748 · FAX 801-/531-0660 Group, Inc. · A not-for-profit Service Organization ·

Specilists in alternative dispute resolution

Frederick N. Green' Susan C. Bradford. Rex W. Olsen tl 10 Exchange Place, Suite 622 . Salt Lae City, Utah 84 i 11 MEDIATION 801 363-5655 ¡I

i F ebrumy 1994 29 -CASE SUMMARIES

By Clark R. Nielsen

Fraud and Scienter, Securities Under the Restatement of Contracts, the more than four years after the defendant On certiorari to the Utah Court of state law chosen by the parties to govern doctor's diagnosis and two years after the Appeals, the Supreme Court affirmed the their contractual rights will be applied diagnosis was determined to have been conviction of the defendant, holding that unless that state has no substantial relation- improper. The trial court ruled that the two scienter is not required to establish a viola- ship to the parties or the transaction, and year statute of limitations baITed the action tion of the Uniform Securities Act, Utah there is no other reasonable basis for the as against the claim of the minor for his I ~ Code Ann. §§ 61-1-1 and 61-1-21. Under choice. In this case, the court found no rea- injuries. Utah Code Ann. § 76-2-103 a person acts sonable basis to apply New York law In the second case, the plaintiffs filed "willfully" when he or she desires to because there was no substantial relation- their action for negligent delivery of the engage in the conduct that causes a result. ship between New York and the parties or twin plaintiffs seven years after their birth. The defendant need not act with specific the transaction. "All contacts were within The trial court dismissed this case as ter- intent to defraud. A representation that is the State of Utah and only Utah had an minated by the four year statute of repose. false or misleading may support a charge interest in the law suit." The agreement was (See Utah Code Ann. § 78-14-4) of securities fraud regardless of the defen- to be performed in Utah, was signed in In both cases, the limitations and dant's specific intent. Utah, and breached in Utah. Utah will apply repose provisions were determined uncon- The court rejects the defendant's argu- Utah law, and not New York law, in deter- stitutional as against minors under the ment that there is, or should be, a specific mining the validity of the choice of forum Uniform Operation of Laws provision of intent requirement in the statute. The Utah provisions in the V AR agreement. Article i, Section 24, Utah Constitution. Uniform Securities Act is not a direct par- Under Utah's law, the parties' agreement The limitations period applicable to the allel to the scienter requirement of Rule as to the chosen forum will generally be Malpractice Acts treats minors injured by lOb-5 of the Federal Securities Exchange given effect unless it is unfair or unreason- health care providers categorically differ- Act of 1934. Under our state statute, "wil- able. Plaintiff must demonstrate that the ent from other minors injured by other fully" requires only that the prosecutor chosen forum state would be so seriously an defendants. It also treats minors and adults prove that the accused desired to engage in inconvenient forum as to be unjust. While as if they were situated the same under the the conduct that caused the result. this may be a heavy burden, it is not unsur- law. However, minors and adults are not State v. Larson, 228 Utah Adv. Rep. mountable. If the plaintiff were bound to similarly situated under the law with NO.3 (Dec. 17, 1993) (1. Zimmerman) choose New York as the proper forum respect to their ability to assert claims for under the agreement, then the plaintiff injuries caused by malpractice. For exam- Contracts, Choice of Law and would be required to try the case in Utah ple, minors have no legal capacity to sue Choice of Forum Provisions against the Utah customer and New York and parents or guardians have no legal Plaintiff sued the defendant manufac- against the computer defendant. Bifurcating duty to sue on their behalf. turer under a value added resale ("V AR") the trial on the same issues contravenes the The stated purpose of the Utah Mal- agreement. Under the V AR agreement objective of modern procedure to litigate all practice Act was to curb rising malpractice plaintiff purchased a computer system claims in one action if possible and insurance rates and insure the availability from the defendant Canadian corporation increases the cost and confusion of litigation. of malpractice insurance, thereby reducing and, after improving and adding software The denial of Pinpoint's motion to dismiss the cost of health care. To accomplish for the customer, plaintiff was to resell the for lack of venue and to refuse to enforce these objectives, the Act seeks to abolish computer system to the customer at a rea- the V AR agreement provision regarding all malpractice actions not filed within sonable profit. When defendant broke the choice of forum was not an abuse of discre- four years (repose) and to limit the limita- V AR agreement and dealt directly with tion. The refusal to dismiss was affirmed. tions period to two years. the customer, plaintiff filed suit in the Prows v. Pinpoint Retail Sales System, The court reviews the historical under- i~ Utah district court against the defendant Inc., 228 Utah Adv. Rep. 23 (Dec. 23, pinnings of laws relative to the protection manufacturer and the customer. Defendant 1993) (J. Howe) of minors' legal interests. For example, a il moved to dismiss because the V AR agree- minor is not sufficiently mature or knowl- ment provided that New York would be Medical Malpractice, Limitations edgeable to litigate a legal claim and has jl the exclusive venue. The district court and Repose Statute no legal capacity to do so. The limitations refused to dismiss and the defendant Unconstitutional as to Minors statute which fails to recognize these fun- sought interlocutory appeaL. Consolidating two malpractice cases, the damental differences between minors and I On appeal, the allegations of the plain- court reversed the dismissal of both actions adults with respect to their status in the and remanded for trial on the merits. The i tiff's complaint are reviewed in the light law is discriminatory and unjustifiable. i most favorable to the plaintiff. The trial cases had been dismissed because the The effect of the statute terminates a court's decision that venue was proper, statute of limitations and repose had expired minor's legal right to a remedy before the despite a forum selection clause to the as against the plaintiff minors. In case num- minor even reaches majority age or has a contrary, is reviewed for abuse of discretion. ber one, the complaint was not filed until reasonable opportunity to assert the action.

30 Vol. 7 No.2 The court had previously affirmed the laws provision of the Utah constitution. Attorney Discipline constitutionality of the statute with respect These justices would reverse and strike In an attorney disbarment appeal, the to adults in Allen v. IHC, Inc., 635 P.2d 30 down the limitations and repose provisions court held that whether a person had been (Utah 1981). Justice Stewart reviews the under the open courts provision of Art. I, § served with process (the summons and act's history since 1981 and the numerous 11, Utah Constitution. Justice Zimmerman complaint) is a question of fact. Whether cases finding various repose and limitation prefers to employ a substantive due process the service is proper becomes a question statutes unconstitutional under a strict analysis appropriate to Art. I, § 11. of law. A plaintiff is required only to exer- scrutiny standard, rather than a lesser Lee v. Gaufin, 227 Utah Adv. Rep. p. 3 cise reasonable diligence and good faith as rational basis standard. The court holds (Nov. 30, 1993) (J. Stewart, with Js. Howe a means of finding and servicing the that a statutory classification that discrimi- and Durham; J. Zimmerman and C. 1. Hall defendant under Utah R. Civ. P. 4. nates against a person's constitutionally concur in result) In re Schwenke, 227 Utah Adv. Rep. 21 protected right to a remedy for personal (Dec. 1, 1993) (c. 1. Hall) injury is constitutional only if it is (1) rea- Sovereign Immunity; sonable and (2) has more than a Worker Compensation Criminal Law, Diminished speculative tendency to further the legisla- The State of Utah and its employees owe Mental Capacity Defense, tive objective and in fact actually and no duty to the plaintiff and the plaintiff's Involuntary Intoxication substantially furthers the legislative objec- decedent for the parole of a Utah State The legal standard applicable to the tion and (3) is reasonably necessary to prison inmate who later murdered the plain- defense of involuntary intoxication is further the legislative goal. tiff's wife. There was no evidence to justify incorporated within the mental illness In applying the stricter standard to the a jury decision that the paroled inmate was defense for diminished mental capacity, instant matter, the court criticizes the leg- so "uniquely dangerous that the actor upon Utah Code Ann. § 76-2-305. The court islative findings which motivated the whom the alleged duty would fall can be rejects the defendant's argument that the statutory provisions. The court clearly dis- reasonably expected to distinguish that per- pre-1983 standard (which is also applied agrees with both the empirical and son from others who are similarly situated, in Colorado) should apply in Utah. subjective data used by the legislature to to appreciate the unique threat the person Because of the 1983 amendments, the justify the limitations periods. Applying presented, and to act to minimize and pro- defendant must show that he or she was the strict scrutiny standard, the court holds tect against that threat." temporarily so intoxicated during the that the non-uniform application of the The decedent's employer also was not crime due to the involuntary ingestion of limitation provisions in the malpractice act liable to the family of the decedent because drugs that he or she lacked the mental to minors' malpractice claims does not the employer's duty and responsibility to state required as an element of the offense actually or substantially further the desired the decedent has been replaced by the charged. policy to curb or reduce malpractice pre- Workers Compensation Act, which is the State v. Gardner, 227 Utah Adv. Rep. miums or assure reasonably priced health exclusive remedy against an employer. A 28 (Dec. 3, 1993) (C. 1. Hall) care services. strict exclusive remedy of workers compen- According to Justice Stewart, the rise sation is not avoided by a claim of "dual and fall of malpractice insurance rates is capacity" that the employer provided secu- cyclical and has little to do with malprac- rity to the employee. The employer's efforts tice claims and law suits, citing the ABA to provide security were part of its obliga- Action Commission. Even if there was tions and role as an employer. evidence of significantly increased mal- Hunsaker v. State of Utah, 227 Utah practice law suits or increased jury Adv. Rep. 19 (Nov. 30, 1993) (C. J. Hall) verdicts in Utah, that would be no basis to Likewise, parents whose child was sexu- conclude that limiting the claims of ally abused by a state-contracted cab driver minors would actually substantially reduce could not recover from state school offcials such increases. The limiting of malprac- who hired the cab driver. The Utah Govern- tice claims by minors does not mental Immunity Act, § 63-30(10) retains substantially further the objectives immunity from assault and battery claims announced by the legislature. against the state. The immunity focuses The court hastens to add that it does not upon the conduct causing the injury and not hold that the legislature can never enact the negligent act of the state official who statute of limitations as against minors' negligently hired the cab driver. In dissent, claims before the age of majority is Justice Stewart agreed with plaintiffs that reached. However, the law must provide the immunity in this case was so uncon- Afanii1ylcfl d hornclessbyfirc, ay minors with a reasonable opportunity to scionable as to require judicial intervention. ,h"",,,,,,k""'m whonceds CPR. . have their legal claims adjudicated. (See Ledfors, 849 P.2d 1162 (Utah 1993)). achildwll(ncl'i:, tIlcrgcncyliBI aid Justice Zimmerman and Chief Justice S.H. v. State of Utah, 228 Utah Adv. Ðisæacrhas nian)' bees Rep. 21 (Dec. 23, 1993) (1. Zimmerman; J. Slrike back. Hall concur only in the result and do not Giiie to )'our Red Cross faMY. base reversal on the uniform operations of Stewart dissents) Amricaii + Red Cross

February 1994 31 - I

UTAH BAR FOUNDATION . ¡ Utah Bar Foundation Honors Retiring Chief Justice Gordon R. Hall

(left) President Ellen Maycock presenting achievement plaque to Richard C. Cahoon - (center) Chief Justice Gordon R. Hall receiv- ing giftfrom Ellen Maycock - (right) Chief Justice Hall and D. Frank Wilkins Photo credit: Robert L. Scmid

The Utah Bar Foundation honored Hamilton were shown the appreciation of art M. Hanson, Jr., recounted highlights of Chief Justice Hall at its annual luncheon the Board of Trustees for their service on his career and reaffirmed his support of held December 14, 1993, at the Law & the Finance Committee. judicial nominating commissions as the Justice Center. Foundation Vice-President James B. Lee method of choosing judges. Justice Hall President Ellen Maycock recognized announced that the Board of Trustees dis- stated that choosing judges by election or several award recipients. Duane Carling tributed approximately $200,000 in grants political appointment would make the pro- and German T. Flores were given the 1993 during the past year. He stated that, even cess political, rather than merit-based. Community Service Scholarships, and though 1993 interest rates were down, President Maycock presented Justice Laura Kirwan and Andrea Nuffer received resulting in lower revenue from interest on Hall with a silver tray recognizing his dis- the Law School Ethics Awards. Former lawyers' trust accounts, the Foundation was tinguished service to the Utah Judicial trustees, Richard C. Cahoon and Hon. able to make grants at the usual level as a System and to the people of Utah. Norman H. Jackson, received plaques rec- result of the foresight of previous trustees in ognizing their many years of service on investing funds in previous years. the Board. Also, Max D. Eliason and Chad Justice Hall, introduced by Trustee Stew-

Support The Utah Bar Foundation and Utah Community by Enrolling in the IOLTA Program

The Utah Bar Foundation was orga- grants for about $200,000, and has awarded you have not yet authorized your bank to nized in 1963 as a nonprofit charitable a total of approximately $1,250,000 since enroll your trust account to the IOLTA corporation, dedicated to the improvement 1985. As lawyers and members of the Foun- Program, we urge you to do so. Enroll- of relations between members of the Bar, dation, you can be proud of the realization ment poses no cost or administrative the Judiciary, and the public. Its member- of these goals. We appreciate all who have burden to you. Call the Bar Foundation ship consists of all active members of the supported the Foundation with personal office to receive the necessary authoriza- Utah State Bar. The Foundation is admin- donations and enrollment of trust accounts tion form (531-9077) - simply complete istered by a Board of seven trustees who in the IOLTA Program. IOLTA is the pro- and return the form and it wil be for- serve staggered three-year terms. gram whereby a non-interest bearing trust warded to your bank. By supporting the The Foundation is working to carry out account is changed to an interest-bearing Foundation, Utah's lawyers can serve the II its law-related public purposes and account, with the interest payable to the public interest. improve the image of lawyers in Utah. Foundation. Last year the Board of Trustees awarded We need the support of each of you, so if

32 Vol. 7 No.2 ~CLE, , ,CALENDAR . . . CIVIL RIGHTS - a.m. to 12: 15 p.m. Saturday, CLE Credit: 7 hours of CLE NLCLE WORKSHOP March 12th, CLE meetings Date: March 31, 1994 Civil rights causes of action, including from 8:00 a.m. to 12:30 p.m. Place: Utah Law & Justice Center prisoner rights cases and 1983 claims. Fee: Pre-registration TBD, This is another basics seminar designed PERSONAL INJURY - registration at the door, TBD. for those new to the practice and those NLCLE WORKSHOP Time: 9:00 a.m. to 4:30 p.m. looking to refresh their practice skills. No From picking good cases to preparing for prior notice will be provided to early reg- triaL. This is another basics seminar 1994 UTAH LEGISLATIVE REVIEW istrants, please call the Bar if you have any designed for those new to the practice and Get a unique review of issues relevant questions about your registration. Please those looking to refresh their practice skils. to attorneys and their practices that came provide the Bar 24 hour cancellation No prior notice wil be provided to early before the 1994 Utah State Legislature. notice if unable to attend. registrants, please call the Bar if you have Changes in the law may impact environ- CLE Credit: 3 hours any questions about your registration. mental issues, employment law contracts, Date: February 17, 1994 Please provide the Bar 24 hour cancellation criminal procedure, real property, family Place: Utah Law & Justice Center notice if unable to attend. law & taxes. This program provides an Fee: $20.00 for Young Lawyer CLE Credit: 3 hours excellent opportunity to get a step ahead Section members. Date: March 17, 1994 of the upcoming session and to prepare $30.00 for non members. Place: Utah Law & Justice Center your practice for changes in Utah law. Time: 5:30 p.m. to 8:30 p.m. Fee: $20.00 for Young Lawyer CLE Credit: 3 hours Section members. Date: April 8, 1994 PROFESSIONAL $30.00 for non members. Place: Utah State Capitol, LIABILITY SEMINAR Time: 5:30 p.m. to 8:30 p.m. Rooms 303-305 This seminar wil cover loss control Fee: $50.00 early registration, ideas, including a discussion of conflict of ENERGY, NATURAL RESOURCES $60.00 door registration interest exposures and hazardous areas of LAW SECTION'S Time: 9:00 a.m. to 12:00 noon practice. The latest trends in professional ENVIRONMENTAL PERMITTING liability claims and their prevention wil Watch for additional information coming be discussed, as well as a look at local in the maiL. claims statistics. Please note that this is an excellent way to meet the Supreme Court r------, required three hour CLE in ethics. CLE Credit: 3.5 CLE hours in ETHICS CLE REGISTRATION FORM Date: February 25, 1994 TITLE OF PROGRAM FEE Place: Utah Law & Justice Center

Fee: Pre-registration $45.00, 1. registration at the door, $60.00. 2. Time: 9:00 a.m. to 12:30 p.m.

UTAH STATE BAR Make all checks payable to the Utah State Bar/CLE Total Due MID-YEAR MEETING in St. George, Utah Name Phone Watch for additional information com- City, State, ZIP ing in the maiL. Address CLE Credit: 8 hours of CLE, including American ExpresslMasterCardlVISA Exp. Date 1 CLE hour in ETHICS Bar Number Date: March 10-12, 1994 Signature Place: St. George Holiday Inn, Please send in your registration with payment to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.C., Utah 84111. The St. George, Utah Bar and the Continuing Legal Education Department are working with Sections to provide a full complement of live Fee: Pre-registration $135.00, seminars. Please watch for brochure mailings on these, registration at the door, Registration and Cancellation Policies: Please register in advance as registrations are taken on a space available basis. Those who register at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. If $160.00. you cannot attend a seminar for which you have registered. please contact the Bar as far in advance as possible, No Time: Thursday, March 10th, refunds wil be made for live programs unless notification of cancellation is received at lease 48 hours in advance. reception from 6:00 p.m. to Returned checks will be charged a $15.00 service charge NOTE: It is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the 8:00 p.m. Friday, March 11th, 2 year CLE reporting period required by the Utah Mandatory CLE Board. CLE meetings from 8:00 ------~

Februmy 1994 33 BUSINESS ASSOCIATIONS - NLCLE WORKSHOP POSITION ANNOUNCEMENT PLEASE NOTE THE DATE CHANGE TO WEDNESDAY, APRIL ATTORNEY-ADVISOR (CONTRACT) - other equivalent evidence of clearly supe- rior achievement. 20. A program designed to cover Limited ANNOUNCEMENT NO: L-94-01 GS-905-12 ($41,543) Liability Companies, Corporations and What to File - READ CAREFULLY Partnerships. This is another basics semi- ISSUE DATE: 2 February 1994 i. SF-17I. "Application for Federal Employ- nar designed for those new to the practice CLOSING DATE: 4 March 1994 ment," ** On the SF-17l, be sure to give a full and those looking to refresh their practice This position is located in the Staff Judge Advo- description of the nature, extent and complex- skills. No prior notice wil be provided to cate's Office, Hil Air Force Base, Utah. ity of work performed, The applicant must early registrants, please call the Bar if you clearly establish possession of the qualifying have any questions about your registra- experience as described in this announcement. Qualification Requirements: tion. Please provide the Bar 24 hour i. To be eligible for consideration for initial Credit wil be given for unpaid experience or volunteer work such as community, social service cancellation notice if unable to attend. appointment applicants must be graduates of a and professional association activities on the CLE Credit: 3 hours law school that is accredited by the American same basis as for paid experience. To receive Date: April 20, 1994 - Please Bar Association. proper credit, applicant must show actual time note: This program had been 2. To be eligible for consideration, you must be a in hours per week spent in such activities. member of the BAR. scheduled for April 21, 1994. 2, A current official certificate showing that the 3, The first professional law degree (LLB, or Place: Utah Law & Justice Center applicant is an active member of the BAR and J.D.) plus two years of professional legal experi- Fee: $20.00 for Young Lawyer the the applicant's fitness to practice law or ence (at least one of which was at or equivalent Section members. conduct as an attorney has never been chal- to the GS- 11 level); or $30.00 for non-members. lenged. Certificate must be furnished by 4. The first professional law degree plus the sec- applicant. If either fitness or conduct has been Time: 5:30 p.m. to 8:30 p.m. ond professional law degree (LL.M.) plus one challenged, an official statement is required year of professional legal experience (at equiva- concerning the facts and circumstances, SEVENTH ANNUAL lent to the GS- 11 level); or together with any explanation which the appli- ROCKY MOUNTAIN TAX S. Attorneys without experience may, in unusual cant may cat'e to submit. PLANNING INSTITUTE cases, be employed at grade GS-12, provided the 3. Applicants who claim 10 points veteran's Watch for additional information com- individual has advanced educational attainments preference must submit Standard Form is and ing in the maiL. substantially beyond those indicated as required current proof of preference as specified on that CLE Credit: 8 hours of CLE. This for work at the GS-11 level (listed below) and form. the education clearly indicates ability to perform program wil also meet CPE 4. Offcial law school transcript indicating work of the type to be assigned, for example, hour requirements. class standing or final grade point average. If education which included courses directly perti- Date: May 6,1994 class standing is not indicated on transcript, nent to the work of the Air Force. Place: Utah Law & Justice Center submit a letter from the head or registrar of the Fee: Pre-registration $125.00, university, college or school, or other academic registration at the door, Qualifications Required at CS-ll Level: official of the institution responsible for assess- a. The first professional law degree (LL.B. or J.D.) $150.00. ing the relative ranking of student. plus one year of professional legal experience; or Time: 9:00 a.m. to 5:00 p.m. Applications and/or supplemental information b, The first professional law degree plus the sec- submitted should include a full description of: ond professional law degree (LL.M.) provided it a. Honors program participation (including APPELLATE PROCEDURE required one full academic year of graduate & JURISDICTION - moot court, law review, etc.). study; or b. Law school scholarships and awards. NLCLE WORKSHOP c. The first professional law degree provided the c. Authorship of published articles on legal top- Effective appellate advocacy, avoiding applicant's record shows superior law student ics (show titles, publication and date). common pitfalls. This is another basics work or activities as demonstrated by one of the seminar designed for those new to the following: **The SF-l71 and SF-IS may be obtained practice and those looking to refresh their - academic standing in the upper third of from the College Placement Office, any Fed- practice skills. No prior notice wil be pro- his/her law school graduation class, or eral Job Information Center, or by writing to vided to early registrants, please call the - work or achievement of significance on the Hil Air Force Base Address listed below. Bar if you have any questions about your his/her law school's official law review, or The Background Survey Questionnaire Form registration. Please provide the Bar 24 - special high-level honors for academic may be obtained from Hil Air Force Base: hour cancellation notice if unable to excellence in law school, or - winning of a moot court competition or Where to File attend. membership on the moot court team which rep- or For More Information Contact: CLE Credit: 3 hours resents the law school in competition with other Date: May 19, 1994 law schools, or Place: Utah Law & Justice Center - full time or continuous participation in a OO-ALC/DPCFA Fee: $20.00 for Young Lawyer legal aid program as opposed to one-shot, inter- ATTN: Kay Watanabe Section members. mittent or casual participation, or 6063 Elm Lane $30.00 for non members. - significant summer law office clerk experi- Hil AFB, Utah 84056-5819 Time: 5:30 p.m. to 8:30 p.rn ence, or

34 Vol. 7 No.2 I . .~ For information regarding classified Prime downtown attorney office space 230 S. 500 E., Suite 400, Salt Lake City, advertising, please contact (801) 531- available in Kennecott Building. One to UT 84102. 9077. Rates for advertising are as follows: three offices with 15' ceilings, wood pan- 1-50 words - $10.00; 51-100 words - eled, with fully equipped secretarial area, $20.00; confidential box numbers for posi- library, conference room, furnished or tions available $10.00 in addition to unfurnished. Call Lynn at (801) 355-5300. -SERVICES advertisement. ATTENTION ATTORNEYS! Do you EXCELLENT OFFICE SPACE is available need help with voluminous medical CAVEAT - The deadline for classified in the Triad Center. Office sharing with two records? Would you like the most current advertisements is the first day of each other attorneys. Copier, parking, telephone, standards of care on your case? Do you month prior to the month of publication. fax, and conference room included. Secre- have immediate access to Expert Wit- (Example: May 1 deadline for June publi- tarial services are available. Space for your nesses in all fields? A Legal Nurse cation). If advertisements are received own secretary is also available. For more Consultant can help you save time and later than the first, they will be published information call Brad at (801) 521-2121. money. Call SHOAF AND ASSOCIATES in the next available issue. In addition, at (80l) 944-4232. payment which is not received with the LUCRATIVE OPPORTUNITY FOR PER- advertisement wil not be published. No SONAL INJURY ATTORNEY - share LEGAL ASSISTANTS - SAVING exceptions! my numerous PI cases, enjoy free rent, TIME, MAKING MONEY: Reap the ben- receive overflow cases (criminal, contract, efits of legal assistant profitability. LAAU divorce, etc.) and keep your own cases, in Job Bank, P.O. Box 112001, Salt Lake exchange for answering phones, conducting City, Utah 84111, or call (801) 531-0331. -BOOKS FOR SALE initial intake interview, and office manage- Resumes of legal assistants seeking full or ment. Busiest street in Salt Lake part-time temporary or permanent employ- USED LAW BOOKS - Bought, sold and County, with instant clientele base. Call ment on file with LAAU Job Bank are appraised. Save on all your law book and (801) 964-6100. available on request. library needs. Complete Law Library acquisition and liquidation service. John Space now available to share with sole prac- LEGAL SECRETARY/LEGAL ASSIS- C. Teskey, Law Books/Library Services. titioner. Reasonable overhead includes nice T ANT; Excellent skils; 22+ years Portland (503) 644-8481, Denver (303) office, conference/library, receptionist and experience in litigation and non-litigation 825-0826 or Seattle (206) 325-1331. secretary area, phones, copy machine, kitch- area. Looking for work nights and week- enette. FAX service available. Office ends, your place or mine. References Top Value Law Books of the West - building has free parking at convenient available. Write C.L.B., P.O. Box 522156, Buying, Selling and Appraising law location. 370 East 500 South in Salt Lake. Salt Lake City, Utah 84152-2156, or call libraries. The Southwest's Law Book Call (801) 531-0555. 486-1568. leader is now located in Arizona. State and Federal materiaL. We wil not be under- Beautiful office space for several attorneys EXPERIENCED ATTORNEY WITH sold! 1-800-873-6657. with KIRTON, McCONKIE & POELMAN, EXCELLENT RESEARCH AND WRIT- Eagle Gate Tower, 17th and 18th floors. ING SKILLS SEEKS PROJECT/ FOR SALE: Pacific Reporter, Leather Complete facilities including conference room, CONTRACT WORK OR FULL-TIME Bound Vois 1-154; Pacific Reporter, Vols reception area, library, kitchen, telephone, POSITION. Experienced in litigation and fax, copier, etc. Secretarial services are 172-300; Pacific Reporter 2d, Vols 1 -835; appeals, architectural, construction, con- ALR 4th, Vols 1-45; AmJur Trials, Vols available (at extra cost) or space available dominium, personal injury, insurance and 1-32; Proof of Facts, Vols 1-30; Proof of for your secretary. $500/month (per office). contract law, oil, gas and mineral Facts 2d, Vols 1-44; Numerous other pub- Call (801) 321-4893 and ask for Richard leasing, title examination, and organiza- lications available, make offer. Call (801) Turnbow. tion of large projects. Word-processing 968-3501. skills; extremely low overhead. Call (801) 521~8026 -POSITIONS AVAILABLE

-OFFICE SHARING/SPACE APPELLATE LA W CLERK position open AVAILABLE August-September, 1994 for one to two year term. Prefer legal experience. Apply by Fully equipped office has one opening. submitting resume, law school transcript Low overhead. Overload work and case and writing sample by 2/28/94 to Judge sharing available. Call (801) 486-3751. Norman H. Jackson, Utah Court of Appeals,

Febllwy 1994 35 Utah Bar Journal 1988-1993 Subject Index

NOTE.' Indexing is a subjective art at best. -B- Robert S. Campbell, Jr.. Mar. 1992 at 21. Where an article could have been put under two or more categories, e.g. tax BANKING "Open Letter to the Bar Peremptory Chal- laws impacting divorce, it was arbitrarily "Equal Credit Opportunity and the Require- lenges," Jackson B. Howard. Feb. 1990 at 11. put under one. Please check under any ment of a Spouse's Signature," W. Clark "Rule 4-501: An Astounding Example of related categories for articles that may be Burt. June 1989 at 12. Institutional Arrogance," Judge J. Dennis of interest to you. The Bar Journal gives "The FDIC and Failed State Banks," Peter Frederick. Mar. 1990 at 32. Leslee A. Ron and Barrie A. Vernon a W. Billings, Sr., Feb. 1989 at 7. special thanks for completing this mam.- CIVIL RIGHTS moth undertaking. "Rights and Remedies of Depositors and "The Legality of Early Retirement Incen- Other Creditors of Failed Federally Insured tives Under the Age Discrimination in -A- Depository Institutions," Peter W. Bilings, Employment Act," Brian E. Neuffer. Oct. Sr. Aug/Sept. 1990 at 6. 1990 at 12. ADMINISTRA TIVE LAW "A 'CPS' Amendment to Our New BANKRUPTCY "Sexual Harassment Policies for Law Administrative Procedures Act," Maxwell "Are Taxes Dischargeable in Bankuptcy?" Firms," Mary Anne Q. Wood and Wayne A. Miler. Aug/Sept. 1988 at 6. Rex B. Bushman. Oct. 1992 at 19. W. Wiliams. Nov. 1992 at 16. "Recent Developments in State Adminis- "Chapter 11 of the Bankruptcy Code: An "The Utah Anti-Discrimination Act - trative Law: The Utah Experience," A. Overview for the General Practitioner, Part Time For a Tuneup," Jathan W. Janove. Robert Thorup. Apr. 1989 at 10. I" Ronald W. Goss. May 1991 at 8. May 1989 at 11.

ALIMONY "Chapter 11 of the Bankruptcy Code: An COMMERCIAL LAW "Evolution of Alimony in Utah," David S. Overview for the General Practitioner, Part "Buying or Selling a Business: A Multi- Dolowitz. Dec. 1989 at 8. II" Ronald W. Goss. Nov. 1991 at 6. disciplinary Approach," Real Property "Developments In Bankruptcy Law and Section PaneL. May 1990 at 8. ALTERNATIVE DISPUTE Procedure in Utah," Elizabeth Dalton. Mar. "Checklist for Reviewing or Drafting RESOLUTION 1989 at 10. Commercial Leases," Gregory S. BelL. "Alternative Dispute Resolution Develop- Feb. 1992 at 7. ments in Utah," Peter W. Bilings, Sr. Apr. "Supreme Court Rejects Lost Opportunity 1992 at 7. Costs: Timbers and its Impact Upon "Covenants Not to Compete," H. Dickson Bankruptcy Practice In Utah," Ronald W. Burton, Jathan W. Janove, and Elizabeth "Alternative Dispute Resolution- What, Goss. Dec. 1988 at 6. A. Whitsett. Feb. 1993 at 9. Why, and How," Kimberly L. Curtis. June 1989 at 15. "Utah Bankptcy Lawyers Forum," Judge Judith A. Boulden. May 1991 at 12. "Extraordinary Collection Procedures- "Mediation and Dispute Resolution: Time Part I," Bryan W. Cannon. June/July 1993 for a Chiropractic Adjustment to Profes- "Views on the National Conference of at 13. Bankruptcy Judges," Judge Glen E. Clark. sional Bias," David W. Slaughter. "Extraordinary Collection Procedures- Feb. 1992 at 20. June/July 1993 at 19. Part II," Bryan W. Cannon. Aug/Sept. 1993 at 12. AMERICANS WITH . BICENTENNIAL DISABILITIES ACT "Remarks GiVen Before the United States "Now You See It, Now You Don't: Road "The Impact of the Americans with Dis- Supreme Court During the Court's Bicen- Side Warnings to the Hocus Pocus World abilties Act on Utah Businesses," Gretta tennial Commemoration," Rex E. Lee. Apr. of Construction Management," Gregory C. Spendlove and Stephen G. Wood. May 1990 at 13. M. Simonsen. Oct. 1993 at 15. 1992 at 14. -C- COMPUTERS APPELLATE STANDARDS "Court Technology," Judge Gordon J. "Constitutional Harmless Error or Appel- CHILD SUPPORT Low. Mar. 1991 at 26. late Arrogance," Kenneth R. Brown. Jan. "Utah's Child Support Guidelines," Judge "Driving in High Gear: How WordPerfect 1993 at 18. Judith M. Bilings. Dec. 1988 at 8. Can Prevent Mistakes in Legal Docu- ARBITRATION CIVIL PROCEDURE ments," Mark J. Morrise. Aug/Sept. 1992 "An Introduction to Arbitration," John "A Look at the New Local Rules of Practice at 15. Farell Fay. Feb. 1993 at 16. of the Federal District Court for Utah,"

36 Vol. 7 No.2 CONTINUING LEGAL EDUCATION "Sentencing: A Call for Creative Lawyer- "Watson and Atonia: Toward a New The- "In Favor of Mandatory Continuing Legal ing," Judge Roger A. Livingston. May 1990 ory of Disparate Impact," Melody Jones. Education in Utah," Brent V. Manning. at 31. Aug/Sept. 1989 at 11. Jan. 1993 at 16. "RICO and the Prime: Taking the Bite Out ENVIRONMENTAL LAW "Why Mandatory CLE is a Mistake," of Crime?" Kenneth R. Wallentine. Mar. "Cost Recovery and Environmental Com- David A. Thomas. Jan. 1993 at 14. 1991 at 7. pliance Actions for Hazardous Substances "Utah Revisits Batson vs. Kentucky and Do and Petroleum Products," John A. Adams. CORPORATIONS We Really Need a Chart to Figure This Apr. 1993 at 9. "An Introduction to the New Utah Revised Out?" Michael D. Wims. June/July 1992 at 18. Corporation Act," P. Christian Anderson. "A Brief Overview of the Endangered May 1992 at 9. Species Act," Jody L. Wiliams. Nov. -D- 1993 at 9. "A Practitioner's Approach to Implement- ing the Utah Revised Business DAMAGES "The Duty to Defend Environmental Corporation Act," James E. Gleason and "Punitive Damages in Utah," David R. Claims is Not Unlimited," Samuel D. Jeffery N. Walker. June/July 1992 at 11. Black. Nov. 1988 at 11. McVey. Apr. 1993 at 18.

"Proposed Enactment of New Utah Busi- DIVORCE "Reporting Requirements for Accidental ness Corporation Act," Roderic W. Lewis. "Divorce Mediation," Elizabeth A. Dalton. Releases of Pollutants," Lucy B. Jenkns. Feb. 1991 at 15. Dec. 1990 at 12. Apr. 1993 at 15. "Utah Limited Liability Company Act," "The Impact of Tax Laws on Divorce," ESTATES McKay Marsden and Steven W. Bennett, David S. Dolowitz. Aug/Sept. 1991 at 8. "Asset Protection - Another Tool," Paul Apr. 1991 at 12. "Tax Law Impacting Divorce- Part I," J. Barton. Nov. 1993 at 14. "Utah Limited Liability Companies- Tax David S. Dolowitz. Dec. 1992 at 8. "The Confidential Relationship Trap in Classification and Related Tax Considera- "Tax Law Impacting Divorce- Part II," Undue Influence Will Contests," Charles tions," McKay Marsden and Steven W. M. Bennett. June 1989 at 6. Bennett. Mar. 1993 at 10. David S. Dolowitz. Jan. 1993 at 9. "Duties of Trustee of a Revocable Trust," "What Has Happened to the Responsibili- DRAFTING CONTRACTS Merril B. Weech. Apr. 1989 at 6. ties of Directors of Utah Corporations?," "A Dozen Ways to Write a Clearer Con- Peter W. Billings, Sr. Aug/Sept. 1993 at 7. tract," Dan W. Egan. Mar. 1993 at 17. "Estate and Asset Protection Planning," L.S. McCullough, Jr. Oct. 1990 at 6. "Recent Developments in Corporate Law," P. Christian Anderson. Jan. 1989 at 10. -E- "The Living Trust in Utah- Boon or Boondoggle," Bruce G. Cohne and Martha CRIMINAL LAW EMPLOYMENT LAW S. Stonebrook. June/July 1993 at 10. "Affirmative Action: What Must a 'Reme- "The Case Against Plea-Bargaining," "Notice to Creditors in Probate Proceed- Judge Robert F. Owens. Nov. 1988 at 8. dial' Program Remedy," Dan R. Waite. Aug/Sept. 1989 at 18. ings," David 1. Castleton. Nov. 1989 at 10. "Investigatory Stops: Exploring the Dimensions of the 'Reasonable Suspicion' "Employers Beware! The Immigration Ser- ETHICS Standard," Judge Lynn W. Davis. Oct. 1989 vice May Be Knocking on Your Door - Or "Don't Duck Your Responsibility!," Brian What Every Employer Should Know About at 8. M. Barnard and Ray Dodge. Nov. 1989 the Immigration Reform and Control Act of at 13. "Investigatory Stops Revisited," Sharon 1986," Brad L. Englund. Feb. 1990 at 7. Kishner and Judge Lynn W. Davis. May "Ethics and the Government Lawyer," J. 1993 at 10. "Negligent Hiring: The Dual Sting of Craig Smith. Feb. 1993 at 14. Pre-Employment Investigation," Kenneth "Life Without Possibility of Parole- A R. Wallentine. Oct. 1989 at 15. "Lawyers' Obligations," Scott M. Mathe- New Sentencing Option in Capital Cases," son. May 1989 at 9. Creighton C. Horton II. Oct. 1992 at 13. "Recent Developments in Utah Employment Law," Charlotte L. Miller. Oct. 1991 at 7. "Professionalism- The Permissible and "The Magisterial Role in the Search War- the Desirable," Judge Gregory K. Orme. rant Application Proceeding," Judge Lynn "Utah Employment Law Since Berube," Feb. 1991 at 20. W. Davis. Oct. 1991 at 22. Janet Hugie Smith and Lisa A. Yerkovich. Oct. 1992 at 15. "Professional Standards vs. Personal "A Plea for Bargaining - and Justice," Ethics - The Lawyer's Dilemma," Justice Clayton R. Huntsman. Feb. 1989 at 12. "Utah Employment Law after Berube: The Michael D. Zimmerman. Dec. 1988 at 34. Demise of the At-Wil Doctrine," David "Reflections on the Constitutionality of Anderson and W. Mark Gavre. Aug/Sept. "Six Steps to Statesmanship," Brent D. the Motor Vehicle Seat Belt Act," Gary L. 1989 at 8. Ward. Mar. 1990 at 12. Johnson. May 1993 at 20.

F ebl'uaiy 1994 37 "The 10 Most Common Ethical Pitfalls for "Court Consolidation in Perspective," "View From the Rural Bench," Judge Young Lawyers," Jo Carol Nesset-Sale. Harold Christensen. Jan. 1992 at 16. David L. Mower. Apr. 1989 at 22. Mar. 1989 at 16. "Decade of Change in Utah's Judiciary," "Phone Conferences," Judge J. Philip EVIDENCE Judge Michael L. Hutchings. JunelJuly Eves. Aug/Sept. 1991 at 27. "Applying the Rules of Evidence at Trial," 1993 at 39. Judge A. Lynn Payne, Jr., Apr. 1990 at 23. "Employing the Utah Constitution in the JUDICIAL PROFILES "Judges David K. Winder and David E. Utah Courts," Justice Christine M. Durham. Roth," Nov. 1991 at 13. -F- Nov. 1989 at 25. "Profile of Judge Michael L. Hutchings," "The Fifth Anniversary of the Utah Court of FAMILY LAW Clay W. Stucki. Dec. 1993 at 27. "Family Law Update 1988," David S. Appeals," Judge Norman H. Jackson. Apr. Dolowitz. Aug/Sept. 1988 at 9. 1992 at 18. "Judge John H. Allen," Terry E. Welch. Feb. 1992 at 13 "Should Utah Consider Adoption of Com- "Initial Impressions," Judge Dee V. Benson. munity Property Law?" Timothy B. June/July 1992 at 31. "Judge George E. Ballif," Terry E. Welch. Jan. 1992 at 14. Lewis. Apr. 1992 at 11. "Lawyers Accost Judges," Judge Scott Daniels. June 1989 at 28. "Judge Robert T. Braithwaite," Elizabeth FEDERAL RULES Dolan Winter. Jan. 1992 at 13. "Proposed Federal Rule Disclosure "Recent Changes in the Appellate System," Requirements vs. Attorney/Client Confi- Justice Richard C. Howe. Aug/Sept. 1989 "Judge Bryce K. Bryner," Terry E. Welch. dentiality," Brett L. Foster. Oct. 1993 at 9. at 37. May 1992 at 20. "State Trial Court Reorganization: What's "Justice A.H. Ellett," Justice J. Allan -1- Happening in the Third District," James B. Crockett. Oct. 1988 at 7. Lee and Judge Michael R. Murphy. Jan. IMMUNITY "Justice Christine M. Durham," Elizabeth 1992 at 18. "Amending Utah's Immunity Statute," Dolan Winter. Apr. 1993 at 32. Creighton C. Horton II and David 1. "State of the Federal Judiciary," Judge "Judge J. Dennis Frederick," Elizabeth Schwendiman. Oct. 1988 at 14. Bruce S. Jenkins. Oct. 1989 at 30. Dolan Winter. Feb. 1992 at 14. "Recent Case Law Developments in the "State of the Judiciary 1992," Chief Justice "Judge Regnal W. Garff," Terry E. Welch. Field of Sovereign Immunity in Utah," Gordon R. Hall. Feb. 1992 at 8. Apr. 1992 at 15. Judge Lynn W. Davis. Oct. 1990 at 26. "Toward Eradication of Delay in the Tenth "Judge Michael J. Glasmann," Elizabeth "Suing the Sovereign," James E. Circuit Court of Appeals," Judge Steven H. Dolan Winter. Feb. 1993 at 26. Ellsworth. Dec. 1990 at 8. Anderson. Dec. 1990 at 26. "Judge Timothy R. Hanson," Elizabeth "Twenty Tips for Successful Courtroom INJUNCTIONS Dolan Winter. Mar. 1992 at 28. "Injunctions Under Revised Utah Rules of Advocacy," Judge Michael L. Hutchings. Civil Procedure 65A," Mark W. Dykes. Jan. 1992 at 23. "Judge Bruce S. Jenkins," Terry E. Welch. Aug/Sept. 1992 at 20. Aug/Sept. 1991 at 17. "United States Magistrate Judges in Utah," "Insurance Bad Faith in Utah," L. Rich Judge Samuel Alba. May 1993 at 33. "Judge Jon M. Memmott," Terry E. Welch. Feb. 1993 at 28. Humpherys. Dec. 1993 at 13. "Unwritten Rules of Practice or How Not to Irritate the Court," Judge Michael L. Hutch- "Judge Kenneth Rigtrup," Elizabeth Dolan -J- ings. Aug/Sept. 1988 at 30. Winter. June/July 1992 at 21.

JUDICIARY "The Utah Court of Appeals: Past Suc- "Judge Anne M. Stirba," Elizabeth Dolan "All You Ever Wanted to Know About the cesses-Future Challenges," Judge Russell Winter. Apr. 1992 at 16. Judicial Council and Then Some," Judge W. Bench. June/July 1990 at 31. "Judge Don V. Tibbs," Elizabeth Dolan W. Brent West. Apr. 1993 at 34. "Utah's New Judicial Council," Judge Gre- Winter. May 1992 at 19. "An Evening with the Third District Court," gory K. Onne. Nov. 1988 at 26. "Justice Robert LeRoy Tuckett, 1905- Victoria K. Kidman. Dec. 1992 at 15. "Utah Trial Court Organization and Juris- 1988," Justice J. Allan Crockett. Mar. "Avoiding the East Wind: Case Manage- diction Act," Chief Justice Gordon R. Hall 1989 at 20. ment in the Third District Court," Judge J. and John L. Valentine. Apr. 1991 at 21. "Judge Homer F. Wilkinson," Terry E. Dennis Frederick and Timothy Shea. Nov. "1993 State of the Judiciary," Chief Justice Welch. May 1993 at 31. 1992 at 13. Gordon R. Hall. Mar. 1993 at 31. "Justice Michael D. Zimmerman," Terry "Causation and the Judicial Equation," "A Tribute to Judge Regnal W. Garff, Jr.," E. Welch. Mar. 1992 at 30. Judge Bruce S. Jenkins. Nov. 1991 at 24. Judge Pamela T. Greenwood. Nov. 1993 at 32.

38 Februmy 1994 "Tribute to the Late Honorable Willam H. Admitted Members of the Utah State Bar, POLYGRAPHS Folland," Justice J. Allan Crockett. May 11, 1993," Judge 1. Thomas Greene. "Hoffman, Hypnosis, and the Polygraph," Aug/Sept. 1993 at 22. Aug/Sept. 1993 at 19. David C. Raskin. Nov. 1990 at 7. "Lawyers Ancillary Business Activities," JURIES PRIVILEGES David B. Hartvigsen. Nov. 1992 at 36. "Judge Versus Attorney Conducted Voir "Privileges in Utah Law," Judge Michael Dire," Fred D. Howard. Oct. 1991 at 13. "Trends in the Practice of Law," David B. L. Hutchings. Mar. 1989 at 34. Hartvigsen. Mar. 1992 at 32. "Jury Surveys and Pretrial Publicity: Two PRO BONO Case Studies," Scott M. Matheson Jr. and "The First Thing We Do . . ." Judge Bruce "Pro Bono Helps Those in Need," Jeanie Randy L. Dryer. June/July 1990 at 8. S. Jenkins. Oct. 1993 at 31. E. Lesh. May 1989 at 7. "Utah's First Women Lawyers: Phoebe JURY INSTRUCTIONS Wilson Couzins and Cora Georgiana PROCEDURE "It is Time to Revise JIFU," Gary L. John- "Managing the High Profile Case," Judge son. Feb. 1989 at 10. Snow," Steven L. Staker and Colleen Y. Staker. Dec. 1993 at 10. Bruce S. Jenkins. Jan. 1989 at 14. "The Model Utah Jury Instruction Pro- ject," John L. Young. Dec. 1991 at 14. "The Utah Senior Lawyer Volunteer Pro- -R- ject," Edward D. Spurgeon and Mary Jane JUVENILE LAW Ciccarello. June/July 1993 at 22. REAL PROPERTY "Rethinking the Purpose of Juvenile "Why Be a Lawyer?" Judge David K. "The Evolution of Real Estate Develop- Court," Judge Arthur G. Christean. Dec. Winder. Oct. 1992 at 30. ment Exactions in Utah, " Michael J. 1988 at 22. Mazuran. Aug/Sept. 1990 at 11. "Utah Juvenile Justice for the 90's," Judge LIENS "The Evolution in Utah of a 'Somewhat Stephen A. Van Dyke. Feb. 1990 at 23. "How to Bend a Crowbar in a Sand Pile: Arcane Rule of Property Law,'" Jerrold S. The Mechanic's Lien Legislation of 1989," Jensen. Feb. 1991 at 7. "Juvenile Court: A Future or an End in a George A. Hunt. Dec. 1989 at 14. Family Court", Judge L. Kent Bachman. "Recent Utah Real Property Decisions," Dec. 1993 at 29. LOBBYISTS Victor A. Taylor. Dec. 1991 at 6. "Compliance with the 'Lobbyist Disclosure "Utah Real Property Act Amendments," -L- and Regulations Act, '" Gary R. Thorup. David K. Detton and Phillip W. Lear. Jan. 1992 at 10. Aug/Sept. 1988 at 16. LANDLORD AND TENANT "Avoiding Breaches of Peace in 'Self- -M- -S- Help' Repossessions," R.L. Knuth. Aug/Sept. 1992 at 12. MILITARY LAW SECURITIES "Soldiers' and Sailors' Civil Relief Act: A "Landlord and Tenant Law: Implied War- "New SEC Short-Swing Profit Rules- Legal Shield for Military Personnel," Kevin ranty of Habitability," David J. Winterton. Heightened Scrutiny of Insiders," Ronald R. Anderson and DavidK. Armstrong. Apr. Jan. 1990 at 9. S. Poelman. May 1991 at 13. 1991 at 8. "A Rush to Fil the Void: Legislation and STATE OF UTAH Case Law on Warranties of Habitability," -0- "1988-89 Cases Affecting State and Local Gretta C. Spendlove and Kathryn O. Government," Richard S. Dalebout. May Balmforth. Aug/Sept. 1992 at 7. OIL AND GAS 1989 at 15. "Oil and Gas Law Comes of Age in Utah," LAWYER DISCIPLINE Rosemary J. Beless. Nov. 1992 at 10. "Working Through Utah's Agency Disclo- "Let's Take Discipline Out of the Closet," sure Law," David W. Johnson. Oct. Stephen A. Trost. Oct. 1992 at 10. -P- 1988 at 11.

LEGAL PROFESSION PERSONAL INJURY -T- "The Expendable Professionals," Sue "The Brain Injury Case- Preparation and Vogel Flores-Sahagun. Nov. 1993 at 18. Discovery," Robert B. Sykes and James D. TAX PLANNING Vilos. Mar. 1990 at 14. "Year-End Tax Planning for Young "The Legal Profession: Changes, Prob- Lawyers," David K. Armstrong. Dec. lems, and Future Direction," Karen POLITICAL DISCLOSURE 1989 at 32. McLeary. Dec. 1991 at 16. "The Political Action Disclosure Act," Gor- "Living and Practicing Law in Rural don D. Strachan and Gary R. Thorup. Jan. TAX PRACTICE "Private Letter Rulings- Comfort From Utah," Elizabeth Joseph. June 1989 at 19. 1989 at 22. the I.R.S.?," Deborah M. Mostaghel and "Remarks By J. Thomas Greene to Newly Randy M. Grimshaw. Nov. 1989 at 7.

February 1994 39 "Tax Traps in Funding Buy-Sell Agree- art. June/July 1991 at 26. Nielsen. Mar. 1990 at 10. ments," David K. Arstrong. Mar. 1991 at 11. "The Bil of Rights Permits Graduation -W- Prayers," Oscar W. McConkie, June/July TORT LAW 1991 at 18. "The Lawyer's Duty t 0 Help Improve The WATER RIGHTS Civil Justice System," Judge J. Thomas "Graduation Prayer Violates the Bill of "An Introduction to the Law of Utah Greene. Feb. 1989 at 22. Rights," Michelle A. Parish. June/July 1991 Water Rights," Jody L. Wiliams. Jan. "A Practitioner's View of Johnson vs. at 19. 1991 at 7. Rogers," Kevin P. McBride. Jan. 1989 at 20. "Our Remarkable Constitution," Rex E. "Update on Utah Case Law Relating to Water Rights," Michael M. Quealy. Jan. "Recent Utah Tort Developments," Don- Lee. June/July 1991 at 11. ald N. Zilman and Peggy Gentles. Jan. 1991 at 12. UTAH LEGISLATURE 1990 at 13. "Legislating the Criminal Law," John T. WITNESSES "Additional Reflections on Cross-Exami- TRUST ACCOUNTS Nielsen, Nov. 1990 at 21. nation," Kenneth R. Brown. Mar. 1991 at "Trust Accounting in Utah for Fee and "Increasing Access to Health Care Bil," 14. Cost Advances," Anthony J. Frates. Dec. Barbara A. Wyly. Feb 1993 at 32. 1992 at 17. "The Battered Woman Syndrome and the "1990 Utah State Legislature Annual Gen- Admissibility of Expert Testimony in -U- eral Session," John Fellows and Robin L. Utah," Hugh Joel Breyer. Mar. 1992 at 16. Riggs. May 1990 at 28. UNITED NATIONS "Cross-Examination: Methods of Prepara- "Preview of the 1991 General Session - tion," G. Fred Metos. Nov. 1990 at 11. "The Essential Quest," Judge Bruce S. Utah State Legislature," John T. Nielsen. Jenkns. Feb. 1991 at 11. Jan. 1991 at 23. "Making New Law With a Joyous Frenzy- State of Law on Expert Testi- U.S. CONSTITUTION "What to Expect from the 1990 General mony in Utah," Leslie A. Lewis and Karen "The Attorney General, the Constitution Session of the Utah State Legislature," John Knight-Eagan. June/July 1990 at 14. and You," R. Paul Van Dam. June/July T. Nielsen. Dec. 1989 at 26. 1991 at 15. "The Modern Voir Dire Process," Judge UTAH SUPREME COURT Tyrone E. Medley. May 1992 at 28. "The Bil of Rights: A Promise Fulfilled in "Significant Utah Supreme Court and Court the 20th Century," Justice i. Daniel Stew- of Appeals Decisions for 1989," Clark R. MEDIATION T RA ION I N G A FOUR DAY SEMINAR DESIGNED TO QUALIFY YOU TO MEDIATE BUSINESS, FAMILY AND COMMUNITY DISPUTES.

· Limited Enrollment · Register Early & Save · SALT LAKE CITY $649 Individual Participants April 25, 26, 27, 28 $599 Multiple Participants (From same firm/organization/family) or (Cost includes all course materials, breakfast and lunch!) July 25, 26, 27, 28 8:00 AM - 5:00 PM

Sponsored by: THE MEDIATION CORPORATION Chicago May 23 - 26 Post OiiI~e Box 6 i 6 i Sept 26 - 29 Ro~kiord~ IL 6 i i 25 Milwaukee June 6 - 9 Sept 12 - 15 Binningham July 11 - 14 TO REGISTER OR TO RECEIVE A FREE BROCHURE: Aug 8 - 11 Calll . 800 . ADR . FIRM Des Moines June 20 - 23 Aug 29 - Sept 1

40 Vol. 7 NO.2 1994 Mock Trial Schedule Name: Firm:

Position: Address:

Phone: Zip:

I have judged before. Yes _ No _ I wil judge _ (number) of mock trial(s). Please indicate the specific date(s) and location(s) that you wil commt to judge mock trial(s) during the months of March and ApriL. The dates and locations are fixed; you wil be a judge on the date(s) and time(s) and location(s) you indicate, unless several people sign up to judge the same slot and we call you to advise you of a change. You wil receive confirmation by mail as to the time(s) and place(s) for you trial(s) when we send you a copy of the 1994 Mock Trial Handbook. Please remember ~ all trials run approximately 21/2 to 3 hours and you wil need to be at the trial 15 minutes early. We wil call one or two days before your tiiaI(s) to remind you of your commitment. Please be aware that Saturday session wil be held on March 26th and April 9th. Multiple trials wil be conducted. Please give these dates spe- cial consideration. Ogden Area means Layton, Roy, Clearfield, Ogden, SLC means downtown SLC (3rd Circuit Court, Court of Appeals, Public Service Com- mission). Specific addresses for all courtroom wil be mailed with the confirmation letter.

Date Time Place Preside Panel Comm.Rep. Monday, March 21 9:00-12:00 SLC ( ) ( ) ( ) 1:00--:00 SLC ( ) ( ) ( ) 1:00--:00 Ogden Area ( ) ( ) ( ) 1:00--:00 Orem ( ) ( ) ( ) 5:00-8:00 Logan ( ) ( ) ( ) Tuesday, March 22 9:00-12:00 SLC ( ) ( ) ( ) 1:00--:00 SLC ( ) ( ) ( ) 1:00--:00 Ogden Area ( ) ( ) ( ) 1:00--:00 Orem ( ) ( ) ( ) 2:00-5:00 Logan ( ) ( ) ( ) Wednesday, March 23 9:00-12:00 SLC ( ) ( ) ( ) 1:00--:00 Ogden Area ( ) ( ) ( ) 1:00--:00 Orem ( ) ( ) ( ) Thursday, March 24 1:00--:00 Tooele ( ) ( ) ( ) 2:00-5:00 Coalville ( ) ( ) ( ) Friday, March 25 2:00-5:00 Cedar City ( ) ( ) ( ) Saturday, March 26 9:00-12:00 3rd Circuit Ct. ( ) ( ) ( ) 9:00-12:00 3rd Circuit Ct. ( ) ( ) ( ) 9:30-12:30 3rd Circuit Ct. ( ) ( ) ( ) 9:30-12:30 3rd Circuit Ct. ( ) ( ) ( ) 10:00-1:00 3rd Circuit Ct. ( ) ( ) ( ) 10:00-1:00 3rd Circuit Ct. ( ) ( ) ( ) 10:30-1:30 3rd Circuit Ct. ( ) ( ) ( ) 10:30-1:30 3rd Circuit Ct. ( ) ( ) ( ) 12:30-3:30 3rd Circuit Ct. ( ) ( ) ( ) 12:30-3:30 3rd Circuit Ct. ( ) ( ) ( ) 1:00--:00 3rd Circuit Ct. ( ) ( ) ( ) 1:00--:00 3 rd Circuit Ct. ( ) ( ) ( ) 1:30--:30 3 rd Circuit Ct. ( ) ( ) ( ) 1:30--:30 3rd Circuit Ct. ( ) ( ) ( ) Monday, March 28 9:00-12:00 SLC ( ) ( ) ( ) 1:00--:00 Ogden Area ( ) ( ) ( ) 1:00--:00 Orem ( ) ( ) ( ) Tuesday, March 29 9:00-12:00 SLC ( ) ( ) ( ) 9:00-12:00 Ogden Area ( ) ( ) ( ) 1:00--:00 SLC ( ) ( ) ( ) 1:00--:00 Ogden Area ( ) ( ) ( ) 1:00--:00 Orem ( ) ( ) ( ) Wednesday, March 30 9:00-12:00 Tooele ( ) ( ) ( ) 1:00--:00 SLC ( ) ( ) ( ) 1:00--:00 Orem ( ) ( ) ( ) 2:00-5:00 Ogden Area ( ) ( ) ( ) Monday April 4 9:00-12:00 SLC ( ) ( ) ( ) 9:30-12:30 SLC ( ) ( ) ( )

i Date Time Place Preside Panel Comm.Rep. 5:00-8:00 Logan ( ) ( ) ( ) Tuesday, April 5 9:00-12:00 SLC ( ) ( ) ( ) 1:00-4:00 Vernal ( ) ( ) ( ) Wednesday, April 6 9:00-12:00 SLC ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 2:00-5:00 Ogden Area ( ) ( ) ( ) 2:00-5:00 Coalvile ( ) ( ) ( ) Thursday, April 7 9:00-12:00 SLC ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:00-4:00 SLC ( ) ( ) ( ) Friday, April 8 9:00-12:00 SLC ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:00-4:00 Brigham City ( ) ( ) ( ) 1:00-4:00 SLC ( ) ( ) ( ) 1:30-4:30 Price ( ) ( ) ( ) 2:00-5:00 Spanish Fork ( ) ( ) ( ) 2:00-5:00 Price ( ) ( ) ( ) Saturday, April 9 9:00-12:00 3rd Circuit Ct. ( ) ( ) ( ) 9:00-12:00 3rd Circuit Ct. ( ) ( ) ( ) 9:30-12:30 3rd Circuit Ct. ( ) ( ) ( ) 9:30-12:30 3rd Circuit Ct. ( ) ( ) ( ) 10:00-1:00 3rd Circuit Ct. ( ) ( ) ( ) 10:00-1:00 3rd Circuit Ct. ( ) ( ) ( ) 10:30-1:30 3rd Circuit Ct. ( ) ( ) ( ) 10:30-1:30 3 rd Circuit Ct. ( ) ( ) ( ) 12:30-3:30 3rd Circuit Ct. ( ) ( ) ( ) 12:30-3:30 3rd Circuit Ct. ( ) ( ) ( ) 1:00-4:00 3 rd Circuit Ct. ( ) ( ) ( ) 1:00-4:00 3rd Circuit Ct. ( ) ( ) ( ) 1:30-4:30 3rd Circuit Ct. ( ) ( ) ( ) 1:30-4:30 3rd Circuit Ct. ( ) ( ) ( ) Monday, April 11 9:00-12:00 SLC ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:00-4:00 Ogden Area ( ) ( ) ( ) 2:00-5:00 Coalvile ( ) ( ) ( ) Tuesday, April 12 9:00-12:00 SLC ( ) ( ) ( ) 9:00-12:00 Ogden Area ( ) ( ) ( ) 1:00-4:00 SLC ( ) ( ) ( ) 1:00-4:00 Ogden Area ( ) ( ) ( ) 5:00-8:00 Logan ( ) ( ) ( ) Wednesday, April 13 9:00-12:00 SLC ( ) ( ) ( ) 1:00-4:00 Ogden Area ( ) ( ) ( ) 1:00-4:00 Spanish Fork ( ) ( ) ( ) 1:00-4:00 SLC ( ) ( ) ( ) Thursday, Apri114 9:00-12:00 SLC ( ) ( ) ( ) 1:00-4:00 SLC ( ) ( ) ( ) Semi-Final Rounds (If you wil have judged a previous mock trial) Monday, Apri118 1:00-4:00 Orem ( ) ( ) ( ) 2:00-5:00 Ogden Area ( ) ( ) ( ) Tuesday, April 19 1:00-4:00 Orem ( ) ( ) ( ) 2:00-5:00 Ogden Area ( ) ( ) ( ) Wednesday, April 20 1:00-4:00 SLC ( ) ( ) ( ) 2:00-5:00 Logan ( ) ( ) ( ) 2:00-5:00 SLC ( ) ( ) ( ) Thursday, April 21 1:00-4:00 SLC ( ) ( ) ( ) 1:00-4:00 Ogden Area ( ) ( ) ( ) 2:00-5:00 Logan ( ) ( ) ( )

Please mail this form to: Mock Trial Coordinator Utah Law-Related Education Project 645 South 200 East, Suite 101 Salt Lake City, Utah 84111 We put our entire corporation behind your clients personal trust

When your client names First We offer a complete range of trust Security's Trust Division, they invest in the services including personal, corporate, strength and stability of the First Security and testamentary trustee, custodian or Corporation. Their trust is in the hands agent and personal representative. For of experienced adminis trators, backed professional trust services of the largest by First Security's resources and trust department in Utah, Fi- t experience in serving customers we're right ""here ir§ throughout the Intermountain West. you want us to be. §ecurity Tru§t Divi§ion \\c're riht where you \\';U1tii'iohe

Salt Lake Provo Ogden S1. George Trust Department Trust Department Trust Department Trust Department David Halladay Jeff Kahn Gary Peterson Gary Cutler 350-5859 379-2105 626-9557 628-2831 TAKE LAWON DISCmFORA FREE SPIN. IF YOU'RE NOT COMPLETELY SATISFIED, CASE CLOSED.

Utah Law On Disc Contains These Up-To-Date, Full Text Databases: · Utah Code Annotated · Utah Court Rules Annotated · Utah Administrative Code · Utah Supreme Court Decisions since 1945 · Utah Court of Appeals Decisions since April 1987 · Utah Attorney General Opinions · Utah Executive Orders · Selected federal court decisions since 1865

There's no better way to discover what the Utah Law On Disc subscription price of just $160 down and $135 per month~ which research system wil do for your practice than to give it a trial in your includes quarterly cumulative update discs, Michie's nationally famous own offce. customer support, and an option to buy the CD-ROM drive. Send today for the complete Utah Law On Disc system, which For more information, call The Michie Company toll-free at includes a free loaner CD-ROM drive plus reference guides and toll- SOO/562-1215. Or contact your local Michie representative: free support. You don't need computer training to do faster, more accurate legal Wendell Wagstaff: 801/272.1080 research. Law On Disc is easy to install and use right out of the box. If Utah Law On Disc doesn't streamline your research work and THE increase your productivity, just return the system at the end of 30 days and you'll owe us nothing. Or keep the system and pay the annual MICHIE COMPAN

*Plus shipping, handling and sales tax, Publishers of Utah Code~ Annotated

BULK RATE Utah State Bar U.S. POSTAGE 645 South 200 East Salt Lake City, Utah 84111 Reg**** ******1********* Cr 0 Ethics Cr If* 5-0 DIG I T SHit ;,/1 PAID b2l ' SALT LAKE CITY UT Mr. W;ll;am Holyoak PERMIT NO. 844 2 0 1 Sou t h . No ; n 5 t r t e t # 1 S 0 0 P.O. Box 1189S Salt Lake City, UT 9~1q7