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UTAH BAR JOURNAL Vol. 9 No.5 May 1996

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Utah Construction Law: Recovery For Nonpayment 8 APracticing Historical Law in the Utah Territory: Sketch 12 Strike the Unsigned Minute Entry! 18 Utah Office of Guardian Ad Litem 21 Justice Court Growth 35

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Utah 0 Published by The Utah State Bar UTAH BAR JOURNAL- 645 South 200 East Salt Lake City, Utah 84111 Vol. 9 NO.5 May 1996 Telephone (801) 531-9077 President VISION OF THE BAR: To lead society in the creation of a justice system Dennis V. Haslam that is understood, valued, respected and accessible to all. President-Elect MISSION OF THE BAR: To represent lawyers in the State of Utah and Steven M. Kaufman to serve the public and the legal profession by promoting justice, profes- Executive Director sional excellence, civility, ethics, respect for and understanding of, the law. John C. Baldwin Bar Journal Committee Letters to the Editor...... 4 and Editorial Board Editor President's .Message ...... 5 Calvin E. Thorpe by Dennis V. Haslam

Associate Editors M. Karlynn Hinman Commissioner's Report ...... 6 Willam D. Holyoak by John Florez R'àndall L. Romrell Articles Editors Utah Construction Law: Recovery For Nonpayment ...... 8 Christopher Burke by Michael iv Homer and David J. Burns Lee S. McCullough Letters Editor Practicing Law in the Utah Territory: A Historical Sketch...... 12 Victoria Kidman by David Epperson Views from the Bench Editors Judge Michael L. Hutchings Strike the Unsigned Minute Entry! ...... 18 Judge Stephen VanDyke by Michael A. Jensen Legislative Report Editor Lisa Watts Baskin Utah Office of Guardian Ad Litem ...... 21 Case Summaries Editors by Kristin G. Brewer Scott A. Hagen Clark R. Nielsen State Bar News ...... 25 Book Review Editor Betsy L. Ross The Barrister...... 32 "How to . . ." Editors Views from the Bench...... 35 Brad Betebenner David Hartvigsen by Judge John L. Sandberg Patrick Hendrickson Case Summaries ...... 37 Judicial Profies Editors by Clark R. Nielsen Mamie Funk Derek Pullan Stephen K. Christiansen Book Review...... 39 ADREditor Cherie P. Shanteau Utah Bar Foundation...... 41 Law and Technology Editor CLE Calendar...... 42 R. Bruce Findlay Young Lawyer Representatives Classified Ads...... 43 Michaela. Zabriskie Mark E. Bums COVER: High Uintahs, by Harry Caston, Esq., Salt Lake City, Utah. Robert O. Rice

Members of the Utah Bar who are interested in having photographs they have taken of Utah scenes published Glen Cook on the cover of the Utah Bar Journal should contact Randall L. Romrell. Associate General Counsel, Huntsman David Brown Chemical Corporation, 2000 Eagle Gate Tower, Salt Lake City, Utah, 84 i i i, 532-5200. Send both the slide, David Erickson transparency or print of each photograph you want to be considered. Thomas Jepperson J. Craig Smith The Utah Bar Journal is published monthly, except July and August, by the Utah State Bar. One copy of each issue is furnished to members as part of their State Bar dues. Subscription price to others, $30; single copies, Denver Snuffer Judge Homer Wilkinson $4.00. For information on advertising rates and space reservation, call or write Utah State Bar offces. Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and pnblica- Committee Liaison tion of advertisements is not to be considered an endorsement of the product or service advertised. Maud C. Thurman Copyright 19 i 996 by the Utah State Bar. All rights reserved.

May 1996 3 - -LETTERS- Dear Editor:

This is in reply to the article by Rick Knuth regarding the use of the word "Esquire" as a greeting for attorneys. Mr. Knuth's comments are interesting, but not particularly relevant. The abbreviation "Esq." is widely used to refer to an attor- ney of either sex. I object to any attempt to eliminate this term of professional respect. If Mr. Knuth wants to become more a "man of the people" he might try doing more work for average people, in areas like divorce and criminal defense. Unfortu- nately, there already seems to be a lack of respect for the bar. Anything done to diminish that respect further is counterpro- ductive at best.

Sincerely yours, W. Andrew McCullough

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4 Vol. 9 No. 5 . I i i

Lawyers' Public Service Responsibility

By Dennis V Haslam

. Streamlining and Integrating Intake and public policy issues have been raised that Last monthPro Bono I attended Conference the sponsored 1996 ABA by Case Placement. will required long-range planning. I have the ABA's Standing Committee on . Using ADR to Meet Low-Income Client proposed to the Board of Bar Commission- Lawyers' Public Service Responsibility. Our Needs. ers that we file a petition with the Utah own Judge Judith M. Billings of the Utah . Telephone Hotlines. Supreme Court requesting the creation of Court of Appeals sits on that committee. . Models for Pro Se Support. the Equal Access to Justice Board. The I attended this particular conference . Building Partnerships Between Law Board should be charged with the responsi- because of our Bar's special concerns with Firms and Pro Bono Programs. bility of evaluating the legal needs of respect to access to justice by Utah's . Pro Bono Reporting: Mandatory, Volun- low-income and indigent persons in Utah, impoverished citizens and the delivery of tary or Not at All and Utah's ability to provide legal services legal services to those persons. The Bar . Utilizing Volunteers to Meet Clients; to meet those needs in civil cases. This is commission recently announced its inten- Critical Legal Needs. not just a problem for the Utah State Bar to tion to respond to these needs by hiring a Attending this conference gave me the solve through pro bono services; it is an lawyer experienced in poverty law issues opportunity to better understand the practi- issue that requires involvement of all to help screen and assess poverty law cases cal and logistical problems associated with Utahns because of the important social and and, to match clients in need with volun- the delivery of legal services to the poor, at constitutional implications. Access to the teer lawyers. This person also would least in the civil arena. In the past, the Legal courts is a constitutional right. If Utah's contact volunteer lawyers and educate Aid Society has assisted Salt Lake-area low lawyers do not take the lead on these impor- them to ensure appropriate competency. income clients in family law cases. There tant issues, then nothing may get done. The conference agenda was quite inter- has never been enough money nor enough The Equal Access to Justice Board should esting, as a listing of a few of the legal help. Utah Legal Services Corporation, be comprised of members of the judicial workshops shows: for the most part, has provided legal services branch, the executive branch, the legisla- . The Role of Bar Associations and to the poor throughout the rest of the State. tive branch, legal providers and recipients. Courts in developing Pro Bono Efforts. Its funding likely will be reduced by one- Public hearings should be held to ensure . Recent Activities in New Directions at third this year. More cuts are expected in the that all interested parties have an opportunity the Legal Services Corporation. future and there will be severe restrictions to participate in this important endeavor. . The Impact of Substantive Law on the kinds of services to be performed by Because this will be a new program for Changes on the Poor. its attorneys. our Bar, and wil undoubtedly necessitate . Community Based Needs Assessments. The changes at Utah Legal Services will the expenditure of additional funds, it is . State-wide Planning Efforts: Strategies have a profound effect on the delivery of important that the Bar Commission receive and Results. legal services to the poor in Utah. Important continued on pg 28

May 1996 5 --

,1

Leadership: Go Ask Alice

By John Florez

THE VISION THING ure of confidence: experts. They couldn't be trusted; and, Little seven year old Alice was sitting at Another of the maladies of leadership besides, now we had access to the same her school desk drawing when her teacher is a failure of confidence. Anyone who information as they did. Today, we ques- asked: "Alice, what are you drawing?" accomplishes anything of significance tion our political leaders, our physicians Alice replied, "A picture of God." "But no has more confidence than the facts and our lawyers because we have access to one knows what God looks like," said the would justify. . . . the same information and the new revolu- teacher. To which Alice replied, "They wil Lacking such confidence, too many tion made it so. when I get through." Alice's approach dra- leaders add ingenious new twists to matically contrasts with myriad of the modern art which I call "How to THE LAWYERS' DILEMMA meetings I have sat in over the years with reach a decision without really decid- For the legal profession, the problem professionals, including lawyers, where ing" . . . . a series of clearances within becomes compounded and places lawyers their instinctive reaction to ideas: "That's the organization. . . . opinion polls. . . . in a dilemma. On the one hand, the public the way we've always done it - what do hoping that out of them wil come is looking to them for change and their 'they say' - that's regulation - they won't unassailable support for one course of oath of office requires that they improve let us - we better wait to see what happens action rather than another. the administration of justice. On the other - that might set a precedent," or the hand, the lawyer, by training and code of lawyers' favorites: "let's wait till we see THE INFORMATION REVOLUTION ethics, requires that he/she work solely in what the court says," or "what are the other With the rapid change brought about by the client's interest and be guided by states doing?" the information revolution, our social insti- precedent, tradition, and separation of Each profession has its own set of tutions are quickly becoming relics of past powers, rather than forging new public pol- excuses for doing nothing, but the reasons good intentions - not the least of which is icy. This includes practicing attorneys, as are the same - the fear of risking. The peo- our justice system. As a consequence, our well as judges, who often are criticized for ple we respect most are those who have citizens are crying for solutions and search- making legislation rather than interpreting moved things, inspired us, and accom- ing for leaders who can solve the problems the law. By tradition and practice, lawyers plished things in spite of the ridicule and now confronting us. In the past, we relied on become preoccupied with their client and criticism, especially from their colleagues. professionals "who knew best" (and they focus on detail and process. As a conse- Each had the qualities of a leader: a vision, kept reminding us they did know best) what quence, they often fail to exercise the skil the conviction, and the persistence - in needed to be done in their respective fields, of looking at the big picture to see how to spite of all odds - to make it a reality. Only and we believed them. That trust ended with improve the justice system. later do we call them leaders. John W. Vietnam and the information revolution. On first blush, it is easy to say that Gardner calls the lack of leadership a fail- Those events made us weary of leaders and lawyers lack the characteristics of leaders:

6 Vol. 9 No. 5 " vision, commitment, persistence and the The reality is that no one can take away THE MEANS FOR CHANGE ability to infuence people. Yet, upon close our dreams except ourselves. While attorneys in the daily practice of examination, they practice those skils with At a time when our justice system is in the law must adhere to tradition and estab- vigor in defense of their clients. To see need of renewal (though there are those who lished procedures and policies of the this, just walk in any court room, or ask say "if it ain't broke, don't fix it) we need justice system, they have every right, duty any judge, how creative lawyers can be in visionaries who can tell us what it "ought" and responsibility to take action in improv- interpreting the law and how persistent and to look like as we move in to the 21st Cen- ing the administration of justice; zealous they are in persuading others of the tury. Where are those who vowed to change furthermore, they have the vehicle in which virues of their client. They can make their the world and would never be pessimists like to do it - their professional association - client look like Mother Teresa. the old professionals they ridiculed? How the Bar. For those committed to their pro- many have now fallen victim to the same fession, the Bar becomes the means by FINDING ALICE malady that afficted the past generation: which they can exercise their leadership to If we reflect back on our youth, we all denial, professional myopia and a failure of improve our legal system. They should not had the confidence that . little Alice had - confidence. Unfortunately, many lawyers are wait to be asked. They should step forward we were innocent enough to have dreams stil falling back on time worn answers: let's with their ideas and with the persistence and the confidence we could do anything. wait and see what happens, or let's see what they demonstrate every day on behalf of When we entered our professional schools, others are doing. Somehow we expect some- their clients. we knew when we got out we would be the one else to take care of us and give us the The sole-searching question for each best, change the world, save people; and, ultimate solution. If we wait long enough member of the Bar is: to what extent am I we vowed we were not going to be like the surely someone wil come along and lawyers wiling to make a commitment to my pro- old professionals who were pessimists wil not like what they did. Change will take fession, lend my creativity, integrity, and stuck on old ideas. We were going to place and the question wil be whether the persuasive power to have a vision of what change the world. What happened to us? legal profession wil give it direction or sit kind of justice system we should have for Where along the way did we stop dream- back and criticize while absolving itself of the 21st century; and, do I have the persis- ing, stop risking and start looking to the any blame. tence to make it a reality? It means risking "other guy" to do it, or to tell us what to and reawakening the "Alice" that is within do. Who took the "Alice" out of us? each of us.

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May 1996 7 -

Utah Construction Law: Recovery For Nonpayment

By Michael W Homer and David J. Burns

MICHAEL W HOMER is a trial attorney DAVID J. BURNS is a litigation associate specializing in real property and construc- at Suitter Axland & Hanson. tion litigation and is a partner at Suitter Axland & Hanson in Salt Lake City.

i. INTRODUCTION Architects (AlA) and the Associated General work for nonpayment. If the contract is "Construction" can be a towering new Contractors (AGC). Statutory sources based on the AlA's General Conditions of building by I.M. Pei or a more modest pro- include the Utah Uniform Commercial Code the Contract for Construction ("GCCC")! ject to replace a roof. Whatever the scale of (U.c.A. § 70A-1-101, et seq.), Occupations or fails to provide for a stop work right and a project, however, "construction law" is and Professions provisions (U.C.A. § 58-1- the architect refuses to issue a certificate of most concerned with the relationships cre- 101, et seq.), Lien provisions (U.C.A. § payment, then the contractor may stop ated to complete it. The relationships 38-1-1, et seq.), Contractor's Bonds (U.C.A. work until the amount owed is received but extend from the owner of the property to § 14-2-1, et seq., Private Contracts; U.c.A. § only after the contractor provides written the financial institution(s) advancing 63-56-36, et seq., Public Procurement), and notice allowing the owner to bring current money for purchase of the property or for federal enactments such as the Miler Act the amount owing. GCCC § 9.7.1.2 The construction, the architects, engineers and (40 V.S.c.A. § 270a-d). Case law is also a contract time is extended and the contract consultants advising the owner, the general source of construction law. This body of law sum increased by the amount of the con- contractor, subcontractor, the suppliers and is notable for its practical approach to the tractor's reasonable costs of shut-down, their sales representatives, and the sureties construction enterprise. Mindful of the delay, and start-up. However, if the con- that bond the contractors. Construction law courts' approach, we review the following tractor stops work when he is not entitled governs each of these relationships, and for construction law issue: What do you do if to payment, then it will be liable for any this reason it is not a discrete area of the you don't get paid for construction work? resulting damages. Id. The owner may also law but rather a hybrid drawn from many stop work if the contractor fails to correct sources. II. RECOVERY FOR NONPAYMENT any deficiencies provided for in the con- The principal source of construction law A. Right to Stop Work tract. GCCC § 2.3.1. is the parties' agreement. The most com- When a contractor has a right to progress B. Mechanics' and Materialmens' Liens: mon standard form contracts often used in payments as opposed to a right to payment The Utah Mechanics' Liens statute, place of customized construction contracts only upon completion or substantial comple- Utah Code Ann. § 38-1-1, et seq., protects are prepared by the American Institute of tion of the project, the contractor may stop mechanics (laborers) or materialmen (sup-

8 Vol. 9 No.5 ..I ~

pliers) "performing any services or furnish- constructive notice to any interested party § 38-1-27. The preliminary notice must be ing or renting any materials or equipment that work has commenced.6 Moreover, the filed in writing and may be given at any used in the construction, alteration, or constructive notice provided by a time during the course of the project. improvement of any building or structure mechanic's lien defeats a claim for equitable U.c.A. § 38-1-27(3). However, the prelim- or improvement to any premises in any subrogation.? inary notice may not be filed for "any manner. . . ." U.C.A. § 38-1-3.3 The statute The mechanics' liens statute provides labor, service, equipment, or material is designed to prevent an owner from bene- only two bases for establishing the priority which was provided more than 45 days fitting from an increase in the value of her of competing lien claims: (1) commencement prior to the date the preliminary notice is property at the expense of a mechanic or to do work, or (2) delivery of materials. given." U.C.A § 38-1-27(6). materialman.4 U.C.A. § 38-1-5.8 Actual notice does not Only one preliminary notice is required Mechanics or materialmen may lien the establish priority under the statute.9 The test for each project. U.C.A. § 38-1-27 (4). property upon or concerning which they of what is commencement of work sufficient More than one preliminary notice, how- have rendered service, performed labor, or to impart notice is "whether the improve- ever, must be filed if the subcontractor furnished or rented materials or equipment ments are of such a nature that they would filing the notice has more than one contract for the value of the service rendered, labor present an actual beginning of improvement with more than one subcontractor or origi- performed, or materials or equipment fur- on the ground, they must be visible to the nal contractor. U.C.A. § 38-1-27(5). nished or rented by each respectively.5 extent that a person using reasonable dili- The preliminary notice may be sent by U.C.A. § 38-1-3. The amount of the lien gence in examining the premises would be mail, certified or registered, return receipt attaches only to such interest as the owner able to see it and be on notice that lienable requested and is complete upon deposit of may have in the property. U.C.A. § 38-1-3. work was underway."lo Instances of "visible" the certified or registered maiL. The prelim- Nevertheless, tHey may not lien "any pub- on-site improvements sufficient to establish inary notice may be addressed to the lic building, structure or improvement." priority included excavating a foundation11 original contractor at his place of business U.C.A § 38-1-1. and laying a foundation.12 In other instances, or his business as shown on the notice of The mechanics' liens statute includes a surveying, staking and soil core sampling on commencement on record with the county relation back provision. All liens filed on a the land were found insufficient. 13 recorder. U.C.A. § 38-1-27. The prelimi- project "shall relate back to, and take effect nary notice must contain a statement as of, the time of the commencement to do setting forth certain information. U.C.A. § work or furnish materials on the ground for 38-1-27(7). the structure or improvement." U.C.A. § The preliminary notice requirement "All liens filed on a project 38-1-5. All liens thus relate back to the first does not apply to, among others, residen- work performed on the ground for any 'shall relate back to, and take tial construction; subcontractors who are in given project. effect as of, the time of the privity of contract with an original contrac- All mechanics' liens filed for "work and commencement to do work or tor; and persons performing labor for labor done or material furnished" are upon wages. U.c.A. §§ 38-1-27(1) and (2). "an equal footing, regardless of date of fil- furnish materials on the ground 3. Notice of Lien. ing the notice and claim of lien and for the structure or improvement.''' Each lien claimant must file a notice of regardless of the time of performing such lien within 90 days from the date (1) the work and labor or furnishing such mater- person last performed labor or furnished iaL." U.C.A. § 38-1-10 The equal footing material or (2) of final completion of an doctrine is a natural outgrowth of the rela- The following steps must be taken to file original contract not including a residence. tion back doctrine. As a result, the last and foreclose a Utah mechanic's lien: U.C.A. § 38-1-7(1). The filing period begins contractor on a construction project per- 1. Notice of Commencement. to run when the work has been "substan- forming punch list items enjoys the same The original contractor (the contractor tially completed," leaving only minimal or priority as the excavator. having an express or implied contract with trivial work to be accomplished, and "has Should "the commencement to do work the owner, see Utah Code Ann. § 38-1-2) been accepted by the owner."15 The notice or furnish materials on the ground for the must record a notice of commencement of of lien must contain a statement setting structure or improvement" occur before a the project or improvement with the county forth certain information. ¡d. lending institution records its mortgage or recorder for the county or counties where 4. Delivery ofthe Notice of Lien. deed of trust, all the mechanics' liens have the project is located within thirty days after A mechanic or materialman must cause priority over the lender. This is true even if the commencement of the project. U.c.A. § the notice of lien to be delivered or mailed the deed of trust or mortgage was executed 38-1-27(10). The notice of commencement by certified mail to either the reputed prior to the commencement of work but must contain a statement setting forth certain owner or record owner of the property "was unrecorded at the time the building, information. U.C.A. § 38-1-27(1O)(a)-(e).14 within thirty days after he files the notice structure or improvement was commenced, 2. Preliminary Notice. of lien. U.C.A. § 38-1-7(3). In the event a work begun, or first material furnished on Before a notice of lien may be filed, some lien claimant does not mail the notice of the ground." U.c.A. § 38-1-5. Visible evi- subcontractors must first file with the origi- lien he wil be precluded from an award of dence of work on the property and the nal contractor a preliminary notice of their costs and attorney's fees against the presence of building material is sufficient intent to claim a mechanic's lien. See U.C.A. reputed owner or record owner in an action

May 1996 9 "'

to enforce the lien. U.c.A. § 38-1-7(3). "Residence Lien Recovery Fund," for up to payment bond "shall be with a surety or 5. Filng Foreclosure Action and Lis $75,000 per residence and $500,000 over the sureties satisfactory to the owner for the Pendens. qualified beneficiary's lifetime. U.C.A. § 38- protection of all persons supplying labor, The deadline for commencing foreclo- 11-203(4). The Fund is supported by services, equipment, or material in the sure of a notice of lien depends on the type contractors', subcontractors' and laborers' prosecution of the work provided for in the of property involved. A lien claimant must fees, subrogation collections, civil fines and contract in a sum equal to the contract file suit to enforce the lien within "twelve interest on the Fund. U.c.A. § 38-11-202. price." U.C.A. § 14-2-1(3). months from the date of final completion However, if a residence is constructed under Bond coverage attaches when a of the original contract not involving a res- conditions that do not implicate the resi- mechanic or materialman has not been paid I idence" or "180 days from the date the lien dence lien restrictions, then that residence in full within 90 days after the last day on claimant last performed labor and services and the real property associated with it are which he performed the labor or service or or last furnished equipment or material for subject to an ordinary mechanic's lien. supplied the equipment or material for I a residence." U.c.A. §§ 38-1-11(1)(a) and U.C.A § 38-11-107(2). which the claim is made. U.C.A. § 14-2- .1 (b). Thus, commercial subcontractors may D. Stop-Notice to Construction Lenders 1 (4).20 The foreclosure action must be have longer than twelve months after the A few states, by statute, enable unpaid commenced "within one year after the last completion of their contracts to foreclose subcontractors, suppliers and laborers to day on which the claimant performed the their liens. The statutory period for a send a "stop notice" to a construction lender labor or service or supplied the equipment mechanic's lien foreclosure may be or owner. The existence of the "stop notice" or material on which the claim is based." extended if the contractor performs "non- alternative is tacit recognition that mechan- U.C.A. § 14-2-1(5). In any action upon a trivial" work or supplies material "after the ics are not always protected by lien and bond, the court may award reasonable majority of the contract is performed."16 bond laws. The lender or owner, upon attorneys' fees to the prevailing party. A contractor or subcontractor must file receipt of the stop notice, becomes obligated U.C.A. §§ 14-2-1(5). In any action upon a a lis pendens, or a notice of pendency of to either withhold a portion of the construc- payment bond, the court must award rea- the action, within either twelve months of tion loan disbursements due the general sonable attorneys' fees to the prevailing the substantial completion of the original contractor in an amount equal to the subcon- party. Id. at (7).21 contract or twelve months of the suspen- tractor's claim, or to disburse directly to the A private property owner who fails to sion of work for a period of 30 days." In subcontractor the amount claimed. obtain a payment bond is ordinarily "liable the event a lien claimant fails to timely file Whichever option is used, the unpaid to each person who performed labor or ser- this lis pendens, "the lien shall be void, mechanic does not have to rely upon a vice or supplied equipment or materials except as to persons who have been made mechanic's lien or a payment bond for secu- under the contract for the reasonable value parties to the action and persons having rity for nonpayment. Utah, however, does of the labor or service performed or the actual knowledge of the commencement of not have a stop-notice provision. equipment or materials furnished up to but the action, and the burden of proof shall be not exceeding the contract price." U.c.A. § upon the lien claimant and those claiming 14-2-2(1). Such an action must also be under him to show, such actual knowl- commenced prior to the expiration of one edge." U.C.A. § 38-1-11 (2)(a). year after the day on which the last labor the mechanic's lien is 6. General Contract Theories. "If found to be or service was performed or the equipment If the mechanic's lien is found to be defective or waived, common law or material was supplied by the person. defective or waived, common law theories theories such as mistake or accord u.c.A. § 14-2-2(2). such as mistake or accord and satisfaction and satisfaction may stil provide a The statute requires all persons seeking may stil provide a basis for recovery for basis for recovery for nonpayment." recovery under the payment bond to pro- nonpayment. 18 vide preliminary notice to the payment C. The Residence Lien Restriction and bond principal under the same circum- Lien Recovery Fund Act stances and conditions as a mechanic or Although in most instances a person can materialman under the mechanic's lien law. file a mechanic's lien to recover the cost of E. Private Payment Bonds U.c.A. § 14-2-5. The preliminary notice providing materials and services that Utah contractors and/or developers must requirement is strictly enforced. Id. enhance the value of a structure or real deliver to the private property owner a pay- F. Bonds on Public Works Projects property, an exception exists for residential ment bond for the protection of mechanics Payment bonds on public works pro- properties. The "Residence Lien Restric- and materialmen. Thus, "(b)efore any con- jects are ordinarily required by the Federal tion and Lien Recovery Fund Act," Utah tract exceeding $2,000 in amount for the Government and by each state. The federal Code Ann. § 38-11-101, et seq. (1995),1. construction, alteration, or repair of any requirement is known as "The Miler Act" bars most mechanics' liens on an "owner- building, structure, or improvement upon and applies to all persons furnishing mate- occupied residence and the real property land is awarded to any contractor, the owner rials or performing labor on federal associated with that residence" after Janu- shall obtain from the contractor a payment projects. See 40 U.S.C.A § 270(c)-(d). The ary 1, 1995. U.C.A § 38-11-107. Instead, a bond. . . . The bond shall become binding Utah equivalent of The Miller Act is the lien claimant - now called a "qualified upon the award of the contract to the con- "Utah Procurement Act," Utah Code Ann. beneficiary" - must file a claim against the tractor." U.C.A. § 14-2-1(2). The private § 63-56-38, et seq.22 The bond require- 10 Vol. 9 NO.5 . í

ments are meant to replace the protections G. Retainage on Public Works Projects 6Richards v. Security Pac. Nat'l Bank, 849 P.2d 606, 611 afforded by the mechanics' liens statute, Most public entities retain a specified (Utah Ct. App. 1993). 7Id. at611-12. which applies only to private contracts, percentage (5% to 10%) or each payment 8The Utah Legislature has rejected a record notice system for because absent consent sovereign immu- made to the contractor. Retainage (or reten- mechanics' liens. E. WAllen & Assoc's v. FDIC, 776 F. Snpp. nity precludes attachment of public or tion) is intended to provide security to the 1504, 1507 (D. Utah 1991). quasi-public property. U.C.A. § 38-1-1. owner that all the work contemplated in the 9Id. at 1507-08 (citing Ketchum, Konkel, Barrett, Nickel and Austin, Inc. v. Heritage Mountain Dev. Co., 784 P.2d 1217, 1224 1. The Utah Procurement Act. general contract wil be completed and that (Utah Ct.App. 1989), cert. denied, 795 P.2d I 138 (Utah 1990)). The Utah Procurement Act requires a the contractor wil pay its subcontractors and IOId. at 1509. general contractor on public works projects materialmen. llDavis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 336 P.2d 463, 466 (Kansas 1959). with the State of Utah or its political subdi- In Utah, state contracts and most county 12Scott v. Goldinhorst, 123 Ind. 268, 24 N.E. 333, 334 (1890). visions as defined in Utah Code Ann. § and municipal contracts contain retain age 13Ketchum. supra, at 1227, including exhaustive citations of 14-1-18 to deliver a payment bond to the provisions. In the event a subcontractor or improvements that did not establish priority. public entity to protect persons performing materialman is not paid, it should make a 14Note that failure to fie a notice of commencement estops an original contractor from asserting as a defense in an action to on the project. A person may bring an claim directly to the owner. Similarly, general foreclose a mechanic's lien a subcontractor's failure to file a action on the bond if he has furnished contractors often retain the same percentage preliminary notice. materials or labor and has not been paid in from their progress payments to subcontractors 15 Interiors Contracting, Inc. v. Smith, Halander & Smith, 827 P.2d 963, 967 (Utah Ct. App. 1992) (citing cases). See For- as the owner retains from the general con- full within 90 days after the completion of Shor v. Early, 828 P.2d 1080 (Utah Ct. App. 1992) for discus- his last performance. u.c.A. § 63-56-38(3). tractor. This provides the general contractor sion of the problems associated with the Interiors test. Materials do not include rental equipment with the same protection as the owner with 16Govert Copier Painting v. Van Leeuwen, 801 P.2d 163,173 (Utah Ct. App. 1990) (citing Tortorica v. Thomas, 397 P.2d and rental charges incurred on a public respect to materialmen and sub-subcontrac- 984 (Utah 1965)). project.23 A laborer or materialman has a tors who may not be paid by subcontractors. 17 For-Shor, supra, at 1083-84. direct cause of action against the state or Unlike in some states, Utah does not require 18See Neiderhauser Bldrs. v. Campbell, 824 P.2d 1193, 1196- its political subdivision if it fails to obtain that retained funds be placed in an interest 98 (Utah Ct. App. 1992). See also, Govert, supra, at 168-69. 19See also. Utah Admin. Code § R156-38 et seq. a payment bond on a project subject to bearing account until disbursed. 20See also, Graco Fishing v. Ironwood Exploration, 766 P.2d Uta Code An. § 14-1-18. u.c.A. § 14-1-19. IThe GCCC are industry-wide standards used to interpret con- 1074 (Utah 1988). 21See Bailey-Allen Co. v. Kurzet, 876 P.2d 421 (Utah Ct. App. The Procurement Act does not protect struction contracts in much the same way as the UCC, for exam- third-tier suppliers performing on state ple, is used to interpret commercial contracts. 1994). 22See Western Coating, Inc. v. Gibbons & Reed, 788 P.2d 503, projects.24 Bond coverage is limited to con- 2See also, Darrell J. Didericksen & Sons v. Magna Water, 613 505 (Utah 1990). P.2d 1116 (Utah 1980). tractors, their subcontractors and the next 3 But see, infra, discussion of the recently enacted "Residence 23 Johnson v. Gallegos Constr. Co., 785 P.2d i 109 (Utah 1990). tier of suppliers.25 The foreclosure action Lien Restriction and Lien Recovery Fund Act," Utah Code An. 24Western Coating, Inc. v. Gibbons & Reed, 788 P.2d 503 must be commenced within one year after § 38- 11 - 101 et seq. (1995), which prevents certain persons from (Utah 1990) (citing Cliford F. Macevoy Co. v. U.S., 322 U.S. liening an owner-occupied residence and instead requires them 102,64 S.Ct. 898 (1944)). the last day on which the person performed to draw npon a state-maintained fund for nonpayment. 25 Id. at 506. the service or supplied the materiaL. U.C.A. 4Projects Unlimited v. Copper State Thrif, 798 P.2d 738, 743 26u.S. for Use and Benefit of Wulf v. CMA, Inc., 890 F.2d § 63-56-38(4). The Procurement Act incor- (Utah 1990). 1070 (9th Cir. 1989). 5If the contractor or subcontractor does not have a valid cone 27 See MacEvoy, supra. porates by reference the preliminary notice tractor's license pnrsnant to U.C.A. § 58-55-17, then it may not 28L.p. Friestedt Co. v. U.S. Fireproofing Co., 125 F.2d 1010 requirements of the mechanics' liens maintain an action for a mechanic's lien. A.J. Mackay Co. v. statute. U.C.A § 14-2-7. Okland Constr. Co., 817 P.2d 323, 324 (Utah 1991). (10th Cir. 1942). 2. The Miler Act. The Miler Act protects persons furnish- ing materials or performing labor on federal projects.26 A surety bond must be delivered by contractors who bid to con- struct, alter or repair a public building or public work for contracts worth in excess of $25,000. U.S.C.A § 270a(a). The con- tractor must deliver to the government a performance bond to protect the govern- ment and a payment bond to protect Parsons Behle & Latimer congratulates subcontractors and materialmen. U.S.C.A. James B. Lee on his election as § 270a(a)(l) and (2). A surety guarantees payment where the subcontractor or mate- rialman has no enforceable rights against THE STATE DELEGATE FROM UTAH TO THE the government. AMERICAN BAR ASSOCIATION HOUSE OF DELEGATES The Miler Act like the Procurement Act does not protect third-tier claimants.27 Delay damages, a recurring problem on Mr. Lee has practiced in Utah since 1961 and served as the president of federal projects, are not generally available Parsons Behle & Latimer from 1979-1993. in the Tenth Circuit. 28

May 1996 11 --

I: .' Ii !

Practicing Law in the Utah Territory: A Historical Sketch

By David Epperson

DAVID EPPERSON is President and for Statehood, and when it came in 1896, Ihaveof developedthe early practitioners an appreciation of the for barall senior shareholder of Hanson, Epperson he was elected a member of the first state who endured completing a legal education & Smith where he specializes in the legislature on the Republican ticket. In and who attempted to practice law in the defense of health care providers in med- 1900, he was a delegate to the Republican territory before Utah's Statehood. During ical malpractice actions. He graduated National Convention which nominated 1996, as Utah celebrates its Statehood from the University of Utah College of Law in 1977 and is currently serving as William McKinley and Theodore Roo- Centennial, it seems particularly appropri- the President of the Utah chapter of The sevelt. He was elected to the U.S. Senate in ate to look back a century and to remember American Board of Trial Advocates, and 1904 and re-e1ected in 1910. During 1916- those early lawyers who survived the diffi- is a past president of the Utah Defense 1917 Sutherland served as president of the cult political and economic climate of the Lawyers Association. American Bar Association, gaining 1880s and 1890s. national recognition. George Sutherland LEGAL AND ECONOMIC SETTING ence and support to anti-polygamy laws. is the only Utahn to OF THE 1880s AND 1890s Finally, after three more years of eco- have the distinction Those decades were perhaps the most nomic recession in the territory, church of serving as an turbulent in Utah's history as national pub- President Wilford Woodruff on October 6, Associate Justice of lic sentiment against the practice of 1890 at a General Conference asked church the Supreme Court polygamy led to congressional approval of members to approve a "Manifesto" or offi- of the United States. the Edmunds Act of 1882. The act made it cial church declaration discontinuing the He served as a Jus- impossible for anyone practicing polygamy practice of plural maniage. But the nation- George Sutherland tice from 1922 to to serve on a jury, or to hold public office. wide depression of the 1890s and delayed 1938, or for 16 years It also declared vacant all offices in the return of church assets - personal property between ages 60 and 76. He died in 1942 Territory of Utah connected with registra- in 1894 and real estate after statehood in at the age of 80, and has often been tion and election duties. This caused total 1896 - caused continued financial distress regarded as Utah's leading jurist. chaos for most of the bench and bar. for most of Utah's citizens. In 1885, the court struck down the Mor- THE UTAH CONNECTION mon's argument that the Edmunds law was OBTAINING A LEGAL EDUCATION AT THE UNIVERSITY OF an ex-past-facto law and therefore uncon- FOR UTAH'S LAWYERS MICHIGAN LAW SCHOOL stitutionaL. Following this ruling, Mormon Despite this adverse financial and politi- Prior to the turn of the century, many president John Taylor preached his last cal environment of the 1880s and 1890s, a other Utahns followed George Sutherland public sermon indignant at what he consid- number of individuals travelled out of state to the University of Michigan Law School at ered judicial outrage and disappeared from to secure a legal education and then returned Ann Arbor; including James H. Moyle public view. Meanwhile, the economic home and attempted to set up an economi- (1885); Oscar W. Moyle (1892); Samuel W. depression deepened in the Utah territory. cally viable law practice. Perhaps the most Stewart (1892); Charles B. Stewart (1893); When John Taylor died on July 25, prominent of those early lawyers was Barnard 1. Stewart and Jesse R.S. Budge 1887, the Edmund-Tucker Act of 1887 was George Sutherland. (1900). The Moyle brothers and the Stew- )~ being passed. This act officially dissolved George Sutherland was born in 1862 in art brothers established law firms that I the Church of Jesus Christ of Latter-Day Buckinghamshire, England and moved to continued for more than a century. Saints as a legal corporation and required Utah with his family in 1863. He was one of Jesse Budge and Charles Stewart wrote the church to forfeit to the United States all the first graduates of Brigham Young Academy about this law school experience providing property.in excess of $50,000. The territor- and attended law school at the University of a glimpse of those hard times. Both were ial militia was disbanded, women's Michigan at Ann Arbor where he graduated sons of prominent Mormon polygamous suffrage was abolished, and no one could in 1883. He returned to Utah and began the bishops - which caused them to be acutely vote, serve on a jury or hold public office practice of law in Provo that year. aware of the legal and political climate without signing an oath pledging obedi- Sutherland was active in preparing Utah affecting Utah. Jesse Budge noted,

12 Vol. 9 No. 5 II I .. ,.

In the fall of 1897, I left for Ann October 1, 1891. Attended a lecture in home (Draper) at 5:00 p.m. Arbor to enter the law department of law building by Dean J. C. Knowlton. October 1892. Attended the territor- the University of Michigan. To save Our law class is the largest in Amer- ia1 convention at Provo where J. L. railroad fare, I arranged with a ica. Commenced to study hard. Rawlins was chosen as nominee. . . . sheepman . . .. to accompany as care- October 2, 1891. Admitted to the Once or twice I decided that I could taker a train load of sheep to the Junior class. Attended lecture on Fix- not go back and finish my law course Omaha market. When I desired to tures and Easements by Thompson. that year, but later did so. register in the law department I was October 23, 1891. Went to my first November 8, 1892. Went to An Arbor informed by the registrar that such quiz in Blackstone, answered perfect Michigan to finish my law course. credits as I had. . . were insufficient. and went home happy. December 1892. Had a mock trial in However, as I had travelled so far in December 17, 1891. We had our usual the Utah club court. order to attend the law school, I lecture by Professor Conley . . . Three January 14, 1893. Took my last quiz would be admitted, if in addition to long months of hard work are gone. . . in code pleading. carrying my law studies, I would at but success has crowned our efforts . . . January 26, 1893. Visited the dis- the end of the first semester . . . pass now for the first time in my life I am secting room at Ann Arbor where I an examination. I was appalled and to spend Christmas away from home saw over a dozen bodies and about almost discouraged but I could not and in the circle of the Great Lakes. four dozen students at work dissect- return home a failure. During my During the holiday vacation I spent ing them. first year in Ann Arbor, I paid $10.00 my time in the library and took occa- January 30, 1893. Usua11ecture and per month for my room and $2.00 sional walks to the woods. quiz. How the time rolls on. I scarce per week for my board, and it was January 9, 1892. Saw a female body can believe it, night comes so soon, scarcely worth that amount, and I dissected for the benefit of our law class. morning passes away, days fly by, had no overcoat . . . Many a boy January 12, 1892. Had our last quiz in weeks go and soon the months are waited on tables for his board and Blackstone, and how glad we all were. gone. Sorry wil I be when college washed dishes for his room. . . . My January 22, 1892. Attended a lecture days are over, though freed from dear sister Annie provided from her "From the Pulpit to the Bar" by the hard and earnest toil in future days I meager earnings, the funds for me Reverend Sam Small. oft wil long for college life. while I was in school. . . My entire February 10,1892. Sore eyes and tired February 22, 1893. Listened to a 1ec- expense the first year, from the time I brains, but stil must continue to study, ture on "The Right Man In the Right left home until I returned was a litte study, study. Place" by Steven A. Douglas. less than $350.00, about $375.00 the March 1, 1892. Finished Common March 2, 1893. Joined President second and $425.00 the third. To Law Pleading and Practice. Angell's class on Treatise. avoid buying books, I did much March 26, 1892. Passed on my record March 3, 1893. Joined Professor studying in the law library. in Anson on Contracts. Adams' class on Science of Finance. Charles Stewart in his Journal provided March 31, 1892. Completed Pleading Law class picture taken. glimpses of his legal education. He wrote: and Practice. As a senior law student, Charles Stewart September 6, 1891. I decided that I April 23, 1892. Took walk around was known to be the son of a polygamous would go to An Arbor, Michigan and town with Samuel, Rideout, Shipp, bishop made "ilegitimate" by what he felt study law. (His brother Samuel had Moyle, and several others. to be an "ex post facto law". The faculty gave aleady completed his fist year there.) May 4, 1892. Passed off Agency. him an unusua11ega1 project. He wrote: September 8, 1891. Went to the May 12, 1892. Passed on my record in March 24, 1893. I belong to the sen- Garda house and talked with Presi- Equity Pleading and Practice. ate of the University of Michigan dent Wilord Woodruff and George May 17, 1892. Passed Bils and Notes and the question of the admission of Q. Cannon on going east to school; on my record. Utah as a state of the Union came up they released me from going on the May 19, 1892. Passed in Personal before the assembly. I was asked to mission and had no objections to my Property and Carriers. introduce the bil, and upon doing so, studying law, and gave me some May 20, 1892. Passed off Land - I made in substance, the following excellent advice. Landlord Tenant, Torts, and Partner- speech: September 22, 1891. Packed my ship. How happy I am after passing off Gentlemen of the Senate: Should trnk. Sold my sheep to get money. all my junior year studies. My first Utah be admitted into the Union as a September 24, 1891. Arose early and year's work is done. state? This question has been asked bid my dear mother goodbye. May 21, 1892. My last day in Ann for over 40 years. It was first September 29, 1891. Train for Ann Arbor. Went out walking with Isaac answered in 1850, by giving the peo- Arbor arrived at 6:20 p.m. Took a and Samuel, and took the 10:27 p.m. pIe a governor and a territorial form walk with Samuel and Rideout of the train for home. All the Utah people to of government. From that time until university campus. Paid my entrance station to see us go. today our people have made repeated fee $60 to the University. Secured May 27, 1892. Arrived at Ogden at efforts to be one of the envied stars, boarding place with Rideout. 3:00 a.m. . . . arrived in my country but their efforts have been in vain.

May 1996 13 '91

Time wil not permit the many past cent conduct were forced to resign, and her prosperous commonwealth. litigations to be again revived which and in doing so, they branded their She now has a population of 225,000 are filled with prejudice and hate. crimes on the citizens they tried to people, or according to the last cen-

* * * wrong, and then misrepresented their sus, 207,905 which is 15,041 more condition to the Executive in Con- than the combined population of I would tell it to you in that same gress, and thus turned the whole Montana and Wyoming, and 17,054 proud, patriotic spirit that my now nation against a few law-abiding citi- more than the combined population deceased father told it to me; when zens which caused an army to go to of the adjoining states Nevada, Idaho in youth he reminded me that I was their humble homes with the intention and Wyoming, and 34,004 more than an American, that my grandfather of butchering men and innocent are required under the census of 1890 fought eight long years for liberty women and children. The news of for a representative in Congress. and the flag, and helped forge that such contemplated acts reached them golden band of strength that made a * * * while they were celebrating the 10th nation free, its sons all kings. She has 10,754 farms. . . 3,000 anniversary of the entrance to those * * * miles of irrigating canals. Nearly lonely valleys. They had gathered in 3,000,000 sheep feeding on her Gentlemen, I too have a pride for one of those beautiful canyons, and 10,000 hils, whose annual output of my mountain home though her peo- from many a pine tree top waived the wool is 13,500,000 pounds, ple receive the frown of our nation stars and stripes. The Declaration of 1,000,000 pounds is manufactured and the censure of its leaders, and for Independence was read and the Con- into cloths by Utah Woolen Mils. over 60 years they have been driven, stitution eulogized, while shouts from The terrtory abounds in coal, copper, mobbed, imprisoned, and killed; a thousand throats echoed up the gold, lead, silver, mountains of sul- have been accused of heresy, theft, glens, "May it live forever." And while phur, iron and salt. . . . We have now exclusiveness, disloyalty and rebel- thus glorying in the love of liberty, and established a sugar factory, one of lion. They were driven from their manifesting their loyalty to that gov- the largest in the United States. . . . homes as religious exiles and were ernment, whose great Executive had Utah has an excellent free school forced to launch out into the wilder- sent an army to wipe them from exis- system supported by taxation and ness. On their march across the tence, a messenger came in the midst western plains, the government compulsory education. Only 5% of of their happiness bringing the sad the people are iliterate. Utah is called upon them for 500 men to news of the approach of the great ary. above 41 states, all the territories, fight the batte of Mexico. On their Gentlemen, place yourselves in and on the equal with the three best march they celebrated the 4th of July, their position. They were 2000 miles states in education. Polygamy has and when they arived in that dreary from civilization . . . the grasshoppers been exterminated, and the people wilderness of a home, they climbed had destroyed crops and they were just have pledged their good faith and the highest peak and planted the merging from starvation, and now the have issued a manifesto showing Stars and Stripes on Mexican soiL. army of their nation was upon them. their sincerity. President Harrison Does this look as though they had What could they do . . . This exploit of has granted amnesty to them. The forgotten that they were Americans? the governent cost the nation twenty people have divided on party lines They laid out a city and in its first milions of dollars, and the Mormon's and now vote the Democratic and charter they made a provision for untold pain and suffering. The Indians Republican tickets. In 1878 there public schools. Three years after they were aroused by the influence of the were 13 counties without a saloon, arrived they incorporated the Univer- men who were prejudiced against this brothel, or gambling house in Utah. sity of Deseret, from whose walls people. . . and many lives were lost in hundreds of students have graduated the defense of their homes from the * * * and many have come to this Indians. Mr. Chairman, and gentlemen of renowned institution to finish their I shall not reiterate the many scenes the senate, having submitted these education. of suffering endured by this people. I few statements for your candid con-

* * * shall but state that for the past five sideration, I ask what more can a This was the character of those years, nearly a thousand of our fathers people do? You will not dispute that pioneers of western civilization. The have been sentenced to the state she is prepared to enter the Union on first American paper published in prison, others have left their homes every ground, save it be her moral and gone to Mexico, while many were California was issued from a Mormon status. Can you in justice say her press. The first gold discovered in in hiding and wandered through the people are not sincere in their renun- streets at midnight, for even that was Californa was dug by Mormons. They ciation of polygamy? How can they more pleasant than suffering the renounce more solemnly, before the were the first Anglo-Saxons who penalty imposed under an ex-post- nation and before God? They have have successfully practiced irrigation. facto law. not only felt that they were outcasts Low and scrupulous offcials were sent into their territory to govern But forgetting the past, we wil of the nation, but they have grieved look at the present condition of Utah that the blood of their kindred should them, and by their immoral and inde-

14 Vol. 9 No. 5 r

have been so ungraciously shed. Mil- May 22, 1893. Had my moot court Michigan and the Circuit Court of lions of dollars of their property has case. We tried it before the Dean J. the County of Washtenaw. No one been unjustly confiscated, and they Knowlton. knows how happy I am. have not only been driven from their May 29, 1893. Professor Griffin gave June 14, 1893. Our last quizzes hard earned homes, and many of us a final lecture on the necessity of ended, and my college days are over. them disfranchised, but a thousand of being honorable lawyers. June 15, 1893. We listened to our their number have marched to prison June 5, 1893. Filed my application and last lecture of the course, and each walls in convicts chains, in execution paid $25.00 for admission to the bar. professor who lectured, warned us of of retrospective laws; and ths under the June 7, 1893. Listened to a lecture on the many difficulties we would graceful folds of the American flag. admiralty law by Mr. Brown, justice of encounter, and the necessity of living This people have received a par- the Supreme Court of the United honest lives, keeping our temper don from the President of the nation States. when in a case, and being always of which has been concurred in by the Saturday, June 10, 1893. I am admit- good cheer and not get discouraged governor and judges who now fully ted to the bar, the Supreme Court of because of the slow approach of busi- understand the character of the peo- ple. We now say let the dead past bury its dead, let the laws of the nation be upheld; let the constitution live forever and serve as a shield for RESOLVING YOUR DIFFERENCES protection, and as it guides our ship of state to a perpetual harbor, there to SHOULDN'T BE A MAJOR TRIAL be loved and honored and revered by the milions of America's sons that are to follow. As sons of the patriot fathers, as loyal Americans, we ask Our Mediation Panel is . . . that our earnest appeal be accepted, in the name of justice guaranteed by . . . small, select & trained. the Constitution, in the name of lib- erty and freedom, we ask for . . . composed of retired judges, senior litigation counsel & statehood for Utah. foremost business lawyers * * * Charles noted that at the close of this . . . effective. Over 80% of our mediated cases result in written Bil Presentation "several warm replies were given" but finally the bil was passed settlement agreements. with but two dissenting votes. Little did Charles know at the time that it would yet take three additional years of economic hardship in the Utah territory before State- Mediation Services offered for all types at hood would be granted. Glimpses of the remainder of his senior o Personal Injury law school year included: April 12, 1893. Heard Thomas M. o Construction Cooley lecture on the annexation of the Hawaiian Islands. His idea that it o Employment could not be done. April 25, 1893. School commences for the last time to struggle before we take our sheep skis and retire to battle with the elements and win success. For a complete list of the specialized pa May 2, 1893. Our good old Professor

Thompson delivered to us his last Diane Abegglen, Esq. at 801/531-9748. Fax 801/531-0660 lecture forever, on The Duty of a Lawyer, and it was good advice. May 13, 1893. Studied on my moot court case. Paid my diploma fee of AAACenter for MEDIATION $10.00 and began to see some signs of success. The Largest Private Provider of Commercial Mediation Services · not-for-profit service since 1926 ·

May 1996 15 -

ness, above all, keep your Good Name. significant decrease over his $70 per month whistles are blowing, the bells Thursday, June 29, 1893. I received job teaching schooL. He described the diffcult ringing, guns firing, and the people my diploma, and had conferred on economic times in the following entries: are blowing trumpets and shouting me the degree of LLB by President September 22, 1895: Received $20 for loud for joy. My sweet girl Kate, Angell who handed me my sheep- our first divorce suit. You may guess and I walked up and across City skin. It was the largest class that ever how happy we were at getting so much Creek and thence downtown to see the graduated in America. In the after- money all at once out of the law. throngs of people wild with delight. noon I packed my trunk, bid farewell October 7, 1895. Removed our office to all the boys, and retired to rest for to 317 McCornick Block. the last time in the beautiful little November 1, 1895. Everything was town of Ann Arbor, my college home. quiet and we were feeling a little gloomy when a big country man came ESTABLISHING A LAW PRACTICE in, Robert Beckstead, and gave us a suit. IN THE TERRITORY December 17, 1895. . . . Times are When Charles B. Stewart retumed from hard, and day after day I sit in my Ann Arbor law school in July of 1893, he office and but litte business comes in. was in debt $750. In order to payoff those I do not realize enough out of my pro- debts, he was engaged to teach school in fession to pay my office rent and Tabernacle, Statehood Celebration, 1896 Draper at $70.00 per month. He continued board, let alone my honest debts. . . . January 6, 1896. Everybody from all to work there until June of 1895. If I would stoop to things low and over the State here celebrating the unjust, I could build up a quicker prac- admission of Utah to the Union. tice, but that would be wrong, and I Great procession downtown, and ser- would be upon a weak foundation. My vices in the Tabernacle amid flags, motto has always been that Honor and bunting, flowers, etc. A flag hung Justice, shall be my star and guide. I from the ceiling 128 by 150 feet. would rather starve than lower my Needless to say I thought of the past standard of Right. efforts to gain statehood and of my father telling me of the prospects to UTAH STATEHOOD obtain it. (Charles no doubt also On January 4, 1896, Charles Stewart thought of his law school speech a proudly wrote: few years earlier presenting a Senate Samuel W Stewart (l) and Charles B. Stewart Bil for Utah to obtain statehood.) (r) in McCornick Bldg. offce. With Utah statehood, the economic Charles's brother Samuel had been depression slowly began to dissipate. The attempting to make a living practicing law courts began to function more smoothly since his return from the University of and the Stewart brothers, like other Utah Michigan Law School in the summer of lawyers, began to find work and to prosper. 1892. His office was located in the McCor- By July 20,1897, Charles could write in nick building located on the corner of Main his journal: "My 27th birthday. Brigham Street and First South in Salt Lake City. Young Monument is unveiled, and W.J. Charles, having paid off his school debts Bryan, candidate for the U.S. President and having completed two years teaching delivered an oration. The town is having a school was determined to make a success great jubilee in honor of the pioneers - at the practice of law. He recorded on May Statehood Celebration, 1896 Great time for Utah." 31,1895 that he "went into S. W. Stewart's UTAH IS A STATE AT LAST. It was law office and read law;" and on June 1, proclaimed a state in Washington at 1895 he recorded that he "went in partners noon today. Forty-nine years our with Samuel at 612 McCornick Block, Salt fathers have been in serfdom and vas- Lake City, Utah. Terms share half and pay salage, have been persecuted and expenses equally." His journal states that driven, but today, AT LAST, we enjoy when he "commenced the practice of law the freedom of true Americans. We with Samuel W. Stewart in the McCornick enjoy the freedom designed by our Block, we had one desk for both and 20 great Creator to be the lot of every volumes of law books." child beneath the blue sky. Great God, During these hard economic times, we praise thy name in so moving the Charles went out on his "wheel" or bicycle minds of men to secure our liberty. to find business. At first it was difficult for Happy indeed are we, with beating Charles to make more than $10 a month, a hearts of gratitude and joy. All the Unveilng of Brigham Young Monument, 1897 16 voi. 9 No. 5 - In May of 1898, Charles was appointed Justice and of Mercy all in tears but assistant city attorney. His brother Samuel with the dissolving view at the close had the unprecedented distinction at age 34 all would be smiling. to be elected District Judge of the Third Throughout all would be seen Judicial District for a four year term, where stately forms of devoted men, in the he presided in the newly constructed City courts of the bench and the bar, and and County Building. Progress would be seen waiting and trembling at times; at other times PRESERVING THE HISTORY advancing and jubilant and the clos- OF THE UTAH BENCH AND BAR ing scene would be one of peace and It is unfortunate that so little early Utah full enlightenment. bench and bar history has been preserved. One of the most interesting fea- Today, we can view with curiosity those 1903 Utah Bench and Bar tures would be young men as they men whose photographs were taken by "THE BENCH AND THE BAR" have joined the ranks of the bar and photographer c.R. Savage (Utah's preemi- That is a great theme for a book, many of whom have advanced with nent early photographer) in the BENCH because the story fully told will high honors to the bench and to other AND BAR OF UTAH-1903. Those pho- include, besides the physical history of high places. A State is measured by tographs have been displayed for decades the weary years through which Utah the administration of the laws and by in the Salt Lake County and Weber County struggled up from the naked breast of that rule Utah wil bear comparison courthouses. A pristine copy of that photo- the desert into glorious Statehood, the with any other State in the Union. graph has been located at the Utah history of another transformation that The bench and bar must always be of Historical Society and copies are now was made here. deepest concernment to the people. . . available through that society. The Utah The government at first was a pure As members of the Utah Bar, during this Law and Justice Center is now obtaining a theocracy. To cause that to change to Centennial year we should do what we can copy of that work for display on its premises. the forms prescribed by the fathers has to gather records, photographs and histories The earliest written history of Utah's been the work of the bench and the that will preserve the history of the Utah lawyers was published in 1913 and was bar. Could it be represented in moving Bar and Bench. John Baldwin as executive titled History of the Bench and Bar of pictures, it would be a panorama of director of the Utah State Bar has agreed to Utah. The preface to this bar history by enchantment, for through the earthly accept, organize and make those materials C.c. Goodwin is particularly fitting to this pictures would shine out the majestic available to interested members of the Bar centennial year: statues of Truth, of Liberty, of Faith of at the Utah Law and Justice Center.

Discounts, special savings ~ Utah and travel benefits. ~ StteBa irs all in the card. . . pick up yours today!

For more information contact Lynette Limb at the Utah State Bar at "Only One Card has the Magic!" (801) 531-9077

May 1996 17 Strike the Unsigned Minute Entry!

By Michael A. Jensen

transform an unappealable minute entry This articleintended is toa callstir thefor Bar action. and those It is into an appealable order.6 responsible for rule-making. Specifically, In a recent case, the court issued an the author seeks changes to the Rulesl so unsigned minute entry denying the defen- that unsigned minute entries are a thing of dant a hearing on the plaintiff's motion to the past. The article first examines the dismiss the defendant's counterclaim.7 The character of a minute entry; the distinction court's unsigned minute entry withheld between signed and unsigned minute from the defendant his right to a hearing.8 entries; and then explores ways to elimi- In the same case, the judge also issued nate this distinction. another unsigned minute entry which denied from consideration any further , THE MINUTE ENTRY motions by the defendant until he paid A minute entry is merely an articulation attorney sanctions to the other side.9 Dur- of a judicial ruling, decision, or order that ing the six-week period which followed, 10 is rendered by a judge or panel of judges. It the defendant was without any recourse. is nothing more. A minute entry has the He could not appeal the judge's decision, force of law with respect to the issue or and the judge refused to consider any issues on which it derives its existence - MICHAEL A. JENSEN practices as a motions from the defendant. whether signed or unsigned. solo practitioner in Salt Lake City, Utah. Moreover, whether or not the judge The minute entry is not a creation of His areas of practice are Business Law, enters a signed order reflecting the Utah's Rules of Civil Procedure and only including Civil Litigation; Corporate, unsigned minute entry is solely at the minor references to the term are found in Tax, including Estate Planning and judge's discretion. As a result, a judge other court Rules.2 Although the author Estate Taxes; and Elder Law. Mike could deny a party substantial justice with- found no definition of "Minute Entry," ref- returned to Utah in 1995 after living in out recourse by the party against whom the erences to a "minute entry" can be found in the Northeast for many years. He earned minute entry is issued. This gives rise to his J.D. from Boston College Law School; federal court decisions at least as far back serious constitutional questions of lack of his M.B.A. from Harvard; and his B.S. in as 1857 and back to at least 1946 in Utah Physics from the University of Utah. Dur- due process under Utah's Constitution and court decisions.3 The purpose of this article ing his extensive business career, Mike denial of access to Utah's courtS.11 is not to present a detailed historical per- created and successfully sold two busi- In the above case, the unsigned minute spective on minute entries. Therefore, the nesses in Massachusetts. Between those entry was equal in force with a signed origin of the Minute Entry is best left to two ventures, he was Director of Market- Minute Entry. The only difference between historians and another article. ing & Technology for Corning, Inc. in them was the appealability of the court's Although the statutes and rules fail to Corning, New York. He also was a Sr. decision. This dichotomy, however, has no define or require the use of minute entries Geophysicist for Shell Oil Company useful purpose and ought to be eliminated. as such, the term "minute entry" is proba- when he first left Utah. Moreover, the dichotomy between bly as good as any other term to describe signed and unsigned minute entries does the court's actions. Moreover, despite its not stem from Utah's Code or Utah's

rarity in the rules and statutes, the Minute Minute Entry is not dependent on whether it Rules.12 The distinction has arisen exclu- ,

Entry has become a powerful force in is signed. sively from case law.13 Yet, the case law ¡I Utah's judicial system. generally finds its roots in the 1967 Stead-

Though a Minute Entry is an adminis- THE UNSIGNED MINUTE ENTRY man case which focused more on the lack ,I trative device which conveys the court's Notwithstanding its force, the unsigned of "findings, conclusions or decree" than it ;1 decision on a given matter, the parties and minute entry is inferior to a signed minute did on the fact that the minute entry was their attorneys are bound by the order or entry in one important respect. While a unsigned.14 Though these roots are now decree contained within it. Whether signed signed Minute Entry may be appealed: the questionable, more recent cases routinely or unsigned, a Minute Entry implements unsigned minute entry is not deemed a final pronounce that "it is well settled that an the court's order in the proceedings. How- order and is therefore not appealable.' Thus, unsigned minute entry does not constitute ever, the validity or "strength" of the the mere signature of a judicial authority can an entry of judgment, nor is it a final judg- 18 Vol. 9 No.5 - ment for the purposes of appeaL"" lawyers while not imposing any particular CORPORATION KITS hardship on judges. More importantly, it FOR ELIMINATE THE DICHOTOMY would equalize the duty of each participant There are at least two approaches to in the litigation process. If a judge fails to UTAH COMPLET OlJ cure this dichotomy. First, the Utah sign a Minute Entry, it should be stricken Supreme Court could discard the distinc- in the same manner as any unsigned docu- $52.95 Pre-prite By-Laws. miute & reslutions prite stok tion between signed and unsigned minute ment is now stricken under Rule 11. certifcate & ful page stus. corprate sel w/pouch, binder & entries. The Supreme Court could merely Judges have no reason to complain that slipcae, index ta & ta form for EIN & S Corpration. rely on the existing requirement that an adding their signature to their rulings, or in Complete kit wlo pre-prited By-Laws & miute. SO shls bond pape. order be "final" before it can be appealed.16 particular, minute entries, is too burden- $49.95 $4.00 adtiona S & H pe kit (uS GroWld). This approach equalizes among court some. Attorneys submit far more Nex day delivei available on reqes. orders the criteria for determining whether documents to the court than do judges. Yet, Kit wlo se $4.95 pius S & H a lower court's ruling is ripe for appeaL. attorneys are routinely required to apply However, challenging stare decisis is an their signature to all of their documents. uphill struggle. Equally important, chang- Requiring a signature also provides a ing a Supreme Court precedent would take check and balance between the Judge and substantial time. We would have to wait for the Judge's clerk. When applying his or her just the right case to come along and then signature, the Judge can take that opportu- be fortunate enough to be granted certio- nity to read the typed Minute Entry to rari by the Court. make sure it conforms to the Judge's A second approach is to modify the intended decision or order.19 This small but Rules to require all minute entries to be important additional step should eliminate signed.17 This can be accomplished in two any errors in communication between the ways: (1) expressly require judges to sign Judge and the Clerk. OTHER PRODUCTS all minute entries; or (2) bring judges and . NON-PROFIT OUTT $59.95 minute entries under Rule 11 of Utah's . LID. LIABILIT CO. OUTT $59.95 Rules of Civil Procedure. The author . LID. PARTNRSff OU1 $59.95 believes that the second, indirect way is the . FAMY LID. PART. OUTIT $59.95 better reasoned approach. "fIJf there be valid reasons for . SEAL W/POUCH (CORP., NOTARY) $25.00 keeping the "Unsigned Minute . STOCK CERTS & STUS (20) $25.00 HOLD JUDGES TO THE SAME Entry," then let us modif the STANDARD AS ATTORNEYS Rules to articulate the necessity NEW!!! Under Rule 11, unsigned motions, for the Unsigned Minute Entry EXlIT INEXES & CLOSING SETS pleadings, and other papers are to be WE STOCK A LAGE INNTORY i' The mere absence of a signature and to make clear the distinction stricken. OF EXlIT INEXES results in the harsh sanction of striking the between a Signed Minute Entry (ALPHAETICAL & NURICAL), unsigned document. Despite the harshness, and an Unsigned Minute Entry." CLOSING SETS (ALHAETICAL & attomeys and pro se parties regularly com- NURICAL), BLA WRTABLE ply with this rule. TABS & SPECIATY INEXES, ALL FOR QIDCK SHIMENT. CALL FOR By requiring a signature, Rule 11 PRICING INO. MI FOR QUANTITY assures the document is authentic and also OPPOSITION DISCOUNTS. holds the person whose signature is on the Since natural law requires opposition in all document accountable. Hence, Rule 11 things, there wil be some members of the ORDER TOLL FREE ! serves two valuable purposes. Bar or the Judiciary who wil oppose the PHONE 1-800-874-6570 If these two purposes are truly worth- author's recommended changes. However, FAX 1-800-874-6568 while, why not require judges to sign their if there be such opposition, let it be ORDERS IN BY 2 PM MT SHIPPED SAME DAY own minute entries? As it is now, if a judge WE WILL BILL YOU WITH YOUR ORDER. soundly based on valid legal reasoning and SATISFACTION GUARTEED. fails to apply his or her signature to a rul- CORPORATION OUlIT REQUIRE TIE FOLLOWIG not mere inconvenience or an offensive INFORMTION: ing, there is no possible appeal and there is Exact name of the corpration, state & yea ofincoipration, tota reaction to the imposition of applying shares of stock authorid with par value (or no par). prefered shares, no accountability. Worse still, if the Minute complete or w/o By.Laws. Entry does not accurately represent the equal standards to judges and lawyers. NO CHGE FOR STANAR CLUSES wr KI PURCHE. Moreover, if there be valid reasons for SPEC CLUSES AN MUTIlE CLES OF STOC EX CHGE. judge's intent and it is unsigned, neither keeping the "Unsigned Minute Entry," then party in the action can appeal that ruling. CORP-KIT NORTHWEST, INC. let us modify the Rules to articulate the That result is not only foolish, it jars our 413 E. SECOND SOUTH necessity for the Unsigned Minute Entry judicial sensibilities. BRIGHAM CITY, UT 84302 and to make clear the distinction between a On the other hand, bringing minute SERVIG TH NORTHST Signed Minute Entry and an Unsigned entries and judges under Rule 11 would Minute Entry. In essence, if the Unsigned merely hold judges to the same standard as

May 1996 19 Minute Entry is a good thing, then we 8Rule 4-501(3)(b), Code of Judicial Administration permits either party to reqnest a hearing on dispositive matters;dismiss- should be wiling and able to formulate ing a defendant's counterclaim should be considered dispositive 42nd Annual rules accordingly. although the Rules are silent on what constitutes a dispositive motion. 9See supra Minute Entry dated i 1/22/95 in Civil No. Rocky Mountain CONCLUSION 940905231. A signature on a Minute Entry ensures lOA signed order of the court subseqnently implemented the Mineral Law that the Judge has personally approved the nnsigned Minnte Entry. At that point the unsigned Minute Entry became moot, bnt in that "gap," the unsigned Minnte Entry Minute Entry's wording. The net result of enforced the judge's ruling and it could not be appealed. Institute this change is that no dichotomy would 11See Article I, Sections 7 and 11 of Utah's Constitution for exist between signed and unsigned minute "due process" and "access" claims. entries because unsigned minute entries 12Except as discussed above in Footnote I, the term "minute entry," "unsigned minute entry," or equivalent terms are not Santa Fe, New Mexico would no longer exist - they would be fonnd in any of the conrt's rules or in Utah's Code. Therefore, it stricken! logically follows that no distinction between signed and July 18-20, 1996 unsigned minute entries exists. 13See e.g., Ron Shepherd Insurance. Inc. v. Shields, 882 P.2d IThe author nses the term "Rules" to refer to all court rules: 650 (Utah 1994); Wilson v. Manning, 645 P.2d 655, 655 (Utah civil, criminal, appellate, and those in Utah's Code of Judicial The Rocky Mountain Min- 1982); Steadman v. Lake Hils, 433 P.2d i (Utah 1967). Administration. 14See Steadman v. Lake Hils, 433 P.2d i (Utah 1967) ("There 2In an electronic search of Utah's rules, the majority of refer- erai Law Foundation is being no entry of findings, conclusions or decree there was no ences to "Minute Entr" arise from annotated case citations. final decision of the court"). sponsoring the 42nd Annual Only three other references were found: Rule 32 of Utah's Rules of Criminal Procedure, Rnle 46 of Utah's Rules of 15 See e.g., Ron Shepherd Insurance, Inc. v. Shields, 882 P.2d 650 Rocky Mountain Mineral Law Appellate Procedure, and Rule 4-105 of Utah's Code of (Utah 1994); Wilson v. Manning, 645 P.2d 655,655 (Utah 1982). Judicial Admistration. None of the references defie or cre- i 6For a discnssion of "finality" and also nonfinal orders, see Institute in Santa Fe, New ate the term. Tyler v. Dept. Human Services, 874 P.2d 119 (Utah 1994); Mexico, on July 18-20, 1996. 3See Alfed Ingraham v. Dawson, 61 U.S. 486 (1857) (the Kennecott Corp. v. State, Tax Comm'n, 814 P.2d 1099 (Utah United States Snpreme Court referred to an "entry in minutes" 1991); Pate v. Marathon Steel Co., 692 P.2d 765 (Utah 1984). of the lower court as a Minute Entr); see also Foreman v. i 7The author could not determe whether minute entries were The 42nd Annual Institute Foreman, 176 P.2d 144 (Utah 1946). The nse of the term ever routinely signed or not. However, at least some minute offers the combined expertise "Minte Entr" may exist before 1946, but the electrnic databas- entries in Utah were signed as far back as 1949. See Holbrook v. es of WESTLAW and MICHI only contain cases from 1945. Holbrook, 208 P.2d 11 13 (Utah 1949) ("The following minute of 33 outstanding and experi- 4SwensonAssoc. Architects, P.e. v. State Utah,of 889 P.2d 415 entry appears in the record, signed by the Judge of the Trial (Utah 1994); Dove v. Cude, 710 P.2d 170,171 n.1 (Utah 1985). Court, apparently to stand for the findings of fact and order:") enced natural resources law 5 Ron Shepherd Insurance, Inc. v. Shields, 882 P.2d 650 (Utah (emphasis added). professionals. Presentations 1994); Wilson v. Manning. 645 P.2d 655, 655 (Utah 1982). i 8There is no discretion under Rule i 1. "If a pleadig, motion, or 6The world "appealable" has a dual meaning and both are other paper is not signed, it shall be stricken unless it is signed will address a variety of practi- promptly after the omission is called to the attention of the appropriate here: (I) the order cannot be appealed; and (2) the pleader or ~movant." Rnle 11, Utah R. Civ. P. (emphasis added). cal legal and land problems order is not "appealing," or, it is not desirable. i 9While there is no assurance that a jndge wil in fact read the 7 See Minnte Entry dated 11/1/95 in civil No. 94090523 i in associated with the exploration minute entry being signed, it does encourage such dilgence Thid District Court, Salt Lake County. because the jndge's personal signature is being applied. for and development of oil and gas, hard minerals, and water on both public and private lands. Melaleuca, Inc. Several general sessions, as T oin one of the fastest growing Companies in America! well as split sections on min- ing, oil and gas, landmen's General Counsel issues, and water topics are offered. Papers focusi ng on Melaleuca Inc., a 10-year old rapidly-growing consumer direct mar- environmental, public lands, keting company (personal, health and home-care products) located and international topics are in Idaho Falls, Idaho is seeking an associate general counsel with 2- interwoven throughout the 5 years of trademark and general corporate experience. Strong ana- program. lytical abilities, legal research, writing and interpersonal skills are required. All inquires and replies will be strictly confidentiaL. Attorneys, landmen, corpo- rate management, government Please send resume and salary history/expectations to; representatives, university fac- Melaleuca, Inc. u Ity and consu Itants will Attn: Human Resources - General Counsel Position benefit from knowledge gained 3910 S. Yellowstone Ave. from this year's program. Idaho Falls, Idaho 83402 For additional information, contact the Foundation at Equal Opportunity Employer (303) 321-8100.

20 Vol. 9 No. 5 Utah Office of Guardian Ad Litem

Kristin G. Brewer

the Courts, and dedicated staff, attorneys This pastcases year came and into a half, Utah's over court 3, sys-763 and volunteers. tem which involved children whose While we have come a long way, there custody was at issue because they had is still much that needs to be done to ade- allegedly been abused, neglected or aban- quately serve the many children in need of doned. These children need legal representation. We are currently finalizing representation before the court and coordi- a computer program to assist in tracking nated assistance to make sure their needs our cases and monitoring progress and are met. On July 1, 1994, guardian ad litem needs of the children that we represent. We attorneys began representing abused and are also continually working to increase neglected children under specific statutory the number of CASA volunteers to work guidelines to ensure representation for with our clients. Additionally, we are each child. beginning to focus on the systemic abuse The creation of the Office of Guardian children suffer as witnesses and victims ad Litem and the Child Welfare Reform and to assure that victim rights are granted Act is part of a bigger movement to change to children who must testify in court. the way the child welfare system responds, in particular, to children in foster care. The KRISTIN G. BREWER is the director of THE MISSION OF THE guardian ad litem is also appointed to rep- the Office of Guardian ad Litem. Cur- UTAH STATE OFFICE OF resent children in custody actions where rently she chairs the American Bar THE GUARDIAN AD LITEM there are allegations of abuse or neglect, in Association, Young Lawyers Division, The Office of the Guardian ad Litem is protective order proceedings and in some Children and the Law Committee and is a a state office within the Judicial Branch of criminal actions in the district and circuit former co-chair of the Utah State Bar government which advocates for the best courts. During the first year and a half of Needs of Children Committee. She also interest of abused and neglected children our existence, the interests of over 4,000 serves on many committees dealing with within the court system. The guardian ad children, including the Child Protection Utah children have been represented by the litem and CASA volunteers work in col- Team, the Child Fataility Review Commit- Statewide Office of the Guardian ad Litem. laboration with key agencies and tee, and the Child Abuse Neglect Council, Because of the great number of children the Children's Justice Center Statewide community resources to serve as the in need of guardian ad litem representa- Advisory Board and the Salt Lake County child's advocate and represent what is in tion, we have greatly increased the use of Commission on Youth. She is a member of the best interest of the child in the court. Court Appointed Special Advocates the National Association of Council for The Office of the Guardian ad Litem pro- (CASAs), who are trained volunteers Children and American Professional motes the policies of the Child Welfare working with the guardian ad litem attor- Society on Child Abuse (APSAC). Outside Reform Act: that children in foster care not neys. The CASA volunteer is asked to of work she enjoys gardening and her remain in limbo, that their cases are moni- handle only one case at a time so that German shepherd. tored, and that children not remain in foster intense time may be spent with the child to care for more than 12 months without a obtain factual information to assist the permanency decision. The Office of guardian ad litem to represent the chil- ,\ has occurred in the past year is that there has Guardian ad Litem also strives to assure I dren's best interests. We now have CASA been a four fold increase in the time adequate representation for each child for

I volunteers in most judicial districts, with guardian ad litem attorneys actually spent whom the office is appointed whether or over 340 CASA volunteers throughout the with the children as well as a huge increase not that child is in foster care. state. These volunteers spend an average of in the amount of time spent working on each The goal of the Office of the Guardian 8 hours per month on each case that they case gathering information, interviewing fact ad Litem is to represent to the court what is have been assigned, with some volunteers witnesses, consulting with foster parents and in the best interest of the child and to assist spending as much as 30 hours in a given attending court and administrative reviews. the court by assuring that the court has month. I applaud the contributions of our These improvements are a product of statu- complete information on which to base a dedicated CASA volunteers. tory authority, a strong administrative decision. Because of the high number of Perhaps the most important change that structure under the Administrative Office of cases in the juvenile court, we can not ade-

May 1996 21 quately represent all of these children with- motions and participate to the same extent as unquestionably undivided loyalty. out CASA volunteers. While attorney the attorneys for the parents and the state. It There is no person more interested in guardians ad litem have high case1oads, a is very important that children have compe- a child custody dispute than the

trained CAS A volunteer is asked to work tent legal representation. As stated by the child. His representative should act on one case. Utah Court of Appeals in J W F v. School- accordingly. The attorneys in the Office of the craft, 763 P.2d 1217 (Utah App. 1988), Schoolcraft, 763 P.2d at 1122. Guardian ad Litem collaborate with many others, including the assistant attorney gen- HISTORY OF CASA eral, Division of Family Services, doctors, CASA began three years after passage nurses, therapists, local inter-agency coun- of p.L. 96-272, the Child Abuse Prevention cils, prosecutors, the Child Protection "fWJhen a child needs a and Treatment Act which mandated Team, the Fatality Review Board, the Chil- guardian ad litem, he needs an appointment of a guardian ad litem for all dren's Justice Centers, the Utah Chapter of advocate - someone who wil abused and neglected children appearing in the National Association to Prevent Child plead his cause as forcefully as the juvenile court. In 1977, Juvenile Court Abuse, to name a few. Our attorneys assist the attorneys for each competing Judge David Sokup of Seattle, Washington in staffing several of these committees. In first recruited community volunteers to addition, we are members of the National custody claimant plead theirs." work as CASAs to speak for abused and Association of Counsel for Children, the neglected children in the court. He was Utah State Bar Needs of Children Commit- concemed that he was not receiving enough tees, and the American Bar Association, information about the children who had Children and the Law Committee. All of (w Jhen a child needs a guardian ad petitions pending in his court. He wanted these people and agencies help us gather litem, he needs an advocate - someone to assure that he received adequate infor- research and important instruction on how who will plead his cause as forcefully mation upon which to base his decision. to effectively represent our clients. as the attorneys for each competing CAS A volunteers have proven to be an In Utah, the child is considered a party custody claimant plead theirs. The effective way to help represent the best to civil proceedings concerning custody or basic premise of the adversary system interest of children. Today, across the coun- abuse/neglect allegations. This means that is that the best decision will be try 30,000 people serve as Court Appointed the guardian ad litem can call and cross- reached if each interested person has Special Advocates - CASA volunteers. examine witnesses, conduct discovery, file his case presented by counsel of THE NEED FOR CASAS Over the past year and a half in Utah, over 4,000 children had 3,763 cases pend- ing in the courts regarding their abuse or neglect. These children have committed no CNA: crime, but are simply victims; children ~.. who have been abused, neglected or aban- The choice II 1\ J) c doned. A judge wil decide the fate of a ~..~ --- '" child, appearing in the courtroom. for dependable A CASA volunteer is a member of the Professional Liability Insurance community who is assigned to work with a guardian ad litem to represent the best Providing dependable professional professional liability insurance for interest of a child whose case is before the liability protection for lawyers requires lawyers through the Lawyer's Protection court. CASAs work primarily on cases in an insurer with a solid financial Planli. CNA is a major property/casualty foundation. Because, in addition to group that has eared high financial the juvenile court. A CASA volunteer individual policy features, you also are ratings from all four financial services*. serves as the eyes and ears of the Office of paying for your insurer's ability to pay For additional information, contact the Guardian ad Litem and the court, gath- your claims. Sedgwick James. ering relevant information about the child, Continental Casualty Company, one of the family, and most importantly, getting to the CNA Insurance Companies, offers *' A.M. Best, Standard &- Poor's. Mooy's, Duff & Phelps know the child. The child about whom all ')0 I these decisions wil be made. 'Q~ CAS A volunteers have been used in ~l)~ Salt Lake, Weber and Morgan Counties for Sedgwick many years. CASA is new to most other Phone Sedgwick James of Idaho areas of the state. The Guardian ad Litem C'NA 800-523-9345 (Idaho) Legislation in 1994 mandates the use of For All the Commitments You Make' 800-635-6821 (Utah) CASAs throughout the state to ensure ade- ~"M-dW&g.'¡f quate representation of these children. The La\l)'e S Protection Plan- is a registe"d trademark of Poe &- Brown. Inc.. Tampa. Florida. and is underwritlen by Continental Casualty Company, one a/the CNA ¡'uurace Companies. CNA is a registered service mark a/the CNA Finmicial Corporation, CNA Plaza. Chicago. lL605. We are very excited about the expansion

22 Vol. 9 No, 5 L of CAS A volunteers in Utah and the new we have had speak to us: Janet Dean from with the Needs of Children Young Lawyers statewide CASA coordination. Susan the National Association of Council for Section of the Bar and members of the McNulty previously served as the Third Children spoke on working with families Senior Bar Needs of Children Committee, Judicial District CAS A Coordinator, where and the importance of home visits to observe put together the Pro Bono Guardian Ad her efforts increased the number of active even the very youngest infants - they do Litem Project. This project involved train- CAS A volunteers from less than 20 active communicate; Janet Ward, Child Placement ing of attorneys who were wiling to volunteers to over 100 in the Third Judicial Consultant on evaluation of out of home volunteer as the guardian ad litem in one District. Ms. McNulty now works super- placement, kinship care and the ethics of custody case. These would be cases where vising the CASA coordinators in the other placement evaluations; Dean Lee E. Teitel- there were not allegations of abuse or districts and assisting in training and baum of the University of Utah College of neglect, but where custody and visitation recruiting statewide. Currently, there are Law spoke to us about ethical dilemmas in are being disputed and the court would like over 340 CASA volunteers statewide. representation of children under Utah Code to appoint a guardian ad litem, but that CAS A vo1unteerism is a success. In the Ann. §78-3a-44.5; and James E.B. Myers, appointment does not fit under Utah Code past year our Utah CAS A Program J.D. who wrote Evidence in Child Abuse and Ann. §78-7-9. The staff attorneys at the received recognition as follows: 1) The Neglect Cases, who spoke on sexual abuse Office of the Guardian ad Litem are unable Third Judicial District CAS A Program was and psychological maltreatment of children. to handle those cases. The pro bono attor- nominated for the Governor's Silver Bowl The CAS A volunteer training curriculum neys have handled these cases instead. Two Award; 2) Darlene Hare, a volunteer in the is similar to that used for the attorneys and years later, the project has been successful Fourth Judicial District Program received follows the curriculum set by the National and we are planning to replicate the train- the Governor's Silver Bowl Award; 3) The Court Appointed Special Advocate Associa- ing this spring. Fourth District CASA Program was hon- tion. CASA volunteers go through 15 hours I would like to thank Colleen Bell and ored by the Utah Child Abuse Prevention minimum of training prior to taking any Dena Sarandos who assisted in establish- Council for outstanding work with at-risk cases. They also are subject to a criminal ing the project as well as the following children; 4) Third District volunteer Mar- background check. CASA volunteers con- attorneys who have handled numerous garet Cowan was featured in the National tinue to meet monthly for on-going training. cases as pro bono guardian ad litem: CAS A Magazine Speak Up! in December Brenda L. Flanders; Neal G. Hart; Jeff L. 1995; and 5) The Statewide CASA Coordi- PRO BONO Hollngworth; Carolyn McHugh; Lori Nel- nator, Susan McNulty, received the Utah GUARDIAN AD LITEM PROJECT son; Martin O. Olsen; Dena C. Sarandos; State Bar's Liberty Bell Award. This award In February of 1994 the director of the John B. Wilson; Mary Jane Ciccerello; is given annually by the Young Lawyers Office of Guardian ad Litem in conjunction Marc Beauchemin; and David Zimmerman. Division to a non-lawyer who provided outstanding community service. Susan McNulty was instrumental in producing a joint project with the Office of the Natural Resources & Guardian ad Litem and the Young Lawyers Division of the Utah State Bar to refurbish Environmental Litigation the children's shelter in Salt Lake County. Denver, Colorado ATTORNEY AND May 16-17, 1996 VOLUNTEER TRAINING Numerous state and federal regulations and laws are impacting The initial training for attorneys was an natural resources, real property development, and the environ- intensive 27 hour training program. On an array of topics: the Child Welfare Reform ment. The evolving litigation resulting from these laws and Act and its background; Mental Health; regulations has resulted in a variety of substantive and procedural Children's Justice Center; Interviewing changes for many legal practitioners, for administrative agencies, Children; Division of Family Services and for courts. Child Welfare Manual; Child Protective Because of the increasing demand for knowledge and skils in Services; Adoption; Child Development; this specialized area, the Rocky Mountain Mineral Law Foundation j, Petitions to Terminate Parental Rights; is sponsoring a two-day program at the Hyatt Regency in Denver Documentation; Trial Skils; Indian Child on Natural Resources and Environmental Litigation. Welfare Act; Child Abuse and Neglect; The Institute comprises a mixture of presentations designed for CASA Volunteers; Children's Educational practitioners who are not litigation specialists, new and veteran Rights, Children with Disabilities; Obtain- ing Psychological Opinion Relating to the trial lawyers, government attorneys, and paralegals. The program, Best Interest of the Child. together with the written materials, wil provide an invaluable We continue to have on-going quarterly resource for anyone working in the area of natural resources and training for our attorneys and volunteers. environmental litigation. This wil be an excellent opportunity to Here is a list of the speakers and topics that learn from and interact with a group of experts in this field.

May 1996 23 ,

HOLLAND & HART LLP ATIORNEYS AT LAW

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David G. Angerbauer Brian T. Hansen Lawrence J. Jensen Brent E. Johnson Bruce N. Lemons David R. Rudd Stanley E. Soper

We are pleased to announce the relocation of our office to

Suite 500 215 South State Street Salt Lake City, Utah 84111-2346 Telephone: (801) 595-7800 Facsimile: (801) 364-9124 http://ww.hollandhart.com/law

April 15, 1996

I

.~ I Denver Denver Tech Center Aspen Boulder Colorado Springs

~, I Cheyenne Jackson Hole Billings Boise Salt Lake City ! II

II ! STATE BAR NEWS --

handout with sample Web pages. The Programs. Commission Board voted to approve the expenditure 7. The Board approved upgrading the Highlights for E-Mail and the Internet gateway. telephone system at the Bar offices. 10. J. Michael Hansen, Judicial Council 8. Ethics Advisory Opinion Committee During its regular meeting of November Liaison, reported on the October 23, Chair, Gary Sackett, appeared to 3, 1995, held in Salt Lake City, Utah, the 1995 Judicial Council meeting. review proposed new Rule of Proce-

~' Board of Bar Commissioners received 11. John C. Baldwin reviewed the activi- dure for the committee. The Board the following reports and took the actions ties of the Bar department report in the approved the amended procedures agenda. He reported that representa- for the Ethics Advisory Opinion ~ indicated. 1. The Board approved the minutes of tives from the Bar and judiciary had Committee. the September 22, 1995 meeting with met with Chief Justice Zimmerman to 9. Dean Lee E. Teitelbaum reported on corrections. discuss general concerns regarding the University of Utah's Wallace 2. Chief Justice Zimmerman addressed Legal Services Corporation. Stegner Center for Land, Resources concerns regarding the judicial nomi- 12. Stephen R. Co chell distributed a report & the Environment Interdisciplinary nating commission process in the on the caseload statistics for the month degree programs. rural districts. He also took this of October. 10. Equal Administration of Justice opportunity to introduce Dan Becker, 13. Fred Janzen of the University of Utah, Committee Co-Chair Debra Moore the new State Court Administrator. reviewed the results of the Bar's mem- gave a status report on the commit- 3. Dennis Haslam reviewed the sched- ber needs assessment survey. tees activities. ule of events for the luncheon with 14. Marty Olsen reported on the recent 11. The Board voted to approve execution the Chamber of Commerce Board of Young Lawyers Division welcoming of the Xmission agreement to con- Directors. reception and indicated the division is tract for Internet services for the Bar. 4. Dennis Haslam indicated that it working with NIKE on a campaign A full text of the minutes of these would be a good idea to once again "Sales for Sales" to get tennis shoes and other meetings of the Bar Com- have a Bar Commission liaison for inner city students. mission is available for inspection at assigned to every committee of the 15. Budget & Finance Committee Chair, the office of the Executive Director. Bar so that communication lines are Ray Westergard, reviewed the finan- expanded to all areas of the Bar and cial statements for September and the he asked Commissioners to sign up. 10- Year Cash Flow and answered 5. John Becker gave a status report on questions. NOTICE the public education campaign being planned for the spring in conjunction During its regular meeting of December 1, Watch for your 1996-97 with Law Day activities. 1995, held in Ogden, Utah, the Board of Bar 6. Haslam also reported on a discussion Commissioners received the following licensing form in the mail he had with Scott Matheson regard- reports and took the actions indicated. during the first part of June. ing the Ethics Advisory Opinion 1. The Board voted to approve the min- If you have changed your Committee's review of Rule 4.2. utes of the November 3, 1995 meeting. 7. Haslam reported that the Executive 2. The Board voted to fund the next two address or anticipate a Committee met with Unauthorized issues of Voir Dire to all active mem- change, it is important that Practice of Law Committee Chair, bers of the Bar and to discuss any you notify the Utah State Steve Sullivan, to ask his committee further funding during next year's bud- to assist the Bar in preparing its defi- get discussions. Bar in writing at 645 South nition of the practice of law as it 3. Budget & Finance Committee Chair 200 East, SLC, Utah 84111, pertains to legal assistants. Ray Westergard reviewed the financial Attn: Licensing, or fax the 8. Charlotte Miller reported on the pur- statements and highlights for October pose of the Equal Administration of and answered questions. change to (801) 531-0660. Justice Committee and explained that 4. The Bar Commission met with the ~. The Bar is particularly inter- it is intended to explore the impact of Weber & Davis County Bars and Steve ested in receiving your firm ~, race and ethnicity in the legal system Cochell delivered an ethics presenta- and explore ways to eradicate those tion during lunch. name and E-mail address. barriers to create a more fair system. 5. The Board approved the Client Security If you have questions 9. David Nuffer referred to the Internet Fund Committee recommendations Committee's recommendations, sum- from the committee's October 13, call Arnold Birrell at (801) marized the available services, 1995 meeting with exceptions. 297-7020. answered questions and distributed a 6. Baldwin reviewed the monthly Bar

May 1996 25 Candidates for Utah State Bar President-Elect DENISEA. ing, including elected members, public members to the Commission and will DRAGOO members and ex offcio members. The Exec- decide whether to incorporate a new para- utive Committee should be reduced in size legal division within the Bar. To assure that Dear Colleagues: and responsibility. The entire Commission the Commission and the Court are in This is a first! I should be involved in the decision making accord, we must communicate the need for am pleased to pre- process by advance circulation of Executive major changes carefully and only after the sent my "platform" Committee meeting agendas and minutes. Commission has reached consensus. for president-elect Unless confidential, meetings should be This is truly an exciting time to be a of the Utah State open to interested Bar members. member of the Commission! I would Bar. You may be 5. Communications with Committees appreciate your support in the upcoming surprised to learn that this is the first time and Sections. Our committees and sections election and ask you to call your Commis- that the campaign (although not the vote) are excellent bodies to foster high quality sioner and express your support for me. for president-elect has been open to Bar performance of attorney members. Commis- Very truly yours, members. As president-elect, my goal sioner liaisons with these entities should be Denise A. Dragoo would be to encourage open communica- strengthened. Sections should be encouraged tion and responsiveness to Bar members. I to help the Bar present less expensive CLE believe this could be achieved as follows: sessions. The Commission should be open to CHARLOTTE L. 1. Direct Election of President-Elect: requests for specialization standards pro- MILLER Cunently, the president-elect "politics" for posed by these sections. We should votes from the Bar Commission, rather reinstitute our Bar leadership retreat and call The Utah State than the membership at large. I believe the on section heads to suggest ways to improve Board of Bar Com- members should directly elect the presi- communication between the sections and the missioners wil dent and that this one change alone would Commission. We must continue to promote elect the next pres- do much to attune the Commission to the diversity in committee appointments. ident-elect of the needs of its members. 6. Communication with Bar Members. Bar on May 31, 2. Bar Discipline. Screening panels The Commission should seek to improve 1996. If approved should be allowed greater discretion to communications with its members through by the Bar membership in a retention elec- impose tougher sanctions in disciplining existing means, including the Bar Journal, tion, this person will serve as attorneys who violate the Code of Ethics. and through new vehicles such as the Inter- president-elect in 1996-97 and as president Currently, the panels push disciplinary net. The Voir Dire shows that bar members of the Bar during 1997-1998. The thirteen matters into district court because sanc- wil read a journal with a little pizazz. Mem- Bar Commissioners are responsible for tions which they can administer are ber surveys, such as those prepared for the selecting the president-elect. The election inadequate. Increasing the authority of Commission retreat, should be used to target procedure has changed somewhat to screening panels would reduce the backlog the needs and interests of our members. encourage input from Bar members to the in district court and help promote a more 7. Communications with the Public. Commissioners before the selection, and to timely resolution of complaints. In addi- The public has a negative perception of the allow Bar members to ratify the Commis- tion, the Commission needs to set clear legal profession. In this regard, we need sion's selection prior to the president-elect priorities for the Office of Attorney Disci- assistance with public relations from our taking office. pline to move first on those matters which public Commissione/s as well as public rela- I have submitted my name as a candi- are the most egregious. tions professionals. For instance, a short date for president-elect of the Bar. 3. Client Security Fund Increase. The press release from the Bar could be attached Therefore, 1 am providing you with the fol- Client Security Fund was established to disciplinary matters released to the public. lowing information so that you may be twenty years ago to provide reimbursement Negative editorials regarding the Bar or the better informed about me. to clients who had been injured by a judiciary should evoke a prompt and strong I graduated from the University of Utah lawyer's dishonest act. The Fund has not response from the Commission. Bilingual College of Law after working as a high kept pace with the growth of the profession presentations to the public, such as those ini- school English teacher and a legal assis- and should be increased both per claim and tiated by the Tuesday Night Bar, should be tant. I have had the opportunity to practice in total dollars. Reimbursement of the encouraged. in a variety of settings - small firm, large Fund should be an absolute prerequisite to 8. Communications with the Judiciary. firm, corporate, very small firm - and in a an attorney's readmission to practice. As officers of the Court, the Bar and the Bar variety of areas. I have enjoyed each type 4. Democratization of the Commis- Commission are, to a large degree, creations of practice in each setting. Although there sion. Past efforts to eliminate ex officio of the Supreme Court. The original rules of are certainly advantages in sticking with members of the Commission has alienated integration were enacted by the Court. In one place of employment and one type of Commissioners and the organizations they response to the Supreme Court Task Force practice 1 feel fortunate that I have been represent. All Bar members should be Report in 1991, the Commission was able to experience a variety of practices. encouraged to participate on an equal foot- restructured. The Court now appoints public I enjoy the practice of law and being an

26 Vol. 9 NO.5 ambassador for Utah and the Utah legal . Young Lawyers Division/Salt Lake Pro Bono profession. In both my law practice and my County Bar Domestic Relations Pro Bono association with the Utah State Bar, I have Project Recognition Dinner had opportunities to meet and talk with . Development of New Lawyer CLE pro- individuals all over the country. I am proud gram to replace the Bridge-the-Gap program The Utah Supreme Court, the Utah of the legal profession in Utah, and I like . President, Young Lawyers Division Court of Appeals and the Utah State Bar to continually seek new ways for us to . Presenter at national ABA meetings on are pleased to announce the First Annual improve the practice of law in Utah. Utah Bar programs Pro Bono Recognition Dinner. The growth in Utah and in the Utah . Chair of regional ABA meeting in Park This event will recognize the many con- legal profession will present challenges to City for Young Lawyers - focusing on how tributions made by pro bono attorneys in all of us. The Utah State Bar needs leaders to serve clients Utah. The Courts and the Bar will recog- who look toward the future and who ques- . Chair, Utah State Bar Annual Meeting nize the growing need and importance of tion what the Utah State Bar members will . Mentor program, University of Utah Col- pro bono services and are sponsoring this need in the future to continue to provide lege of Law event to demonstrate appreciation for those valuable service and maintain and create a . Mock Trial Coach providing services. dynamic legal practice. The Bar Commis- . Law Day Committee All members of the Utah State Bar are sion has become more proactive about the . Chair, Committee to Review the Office of invited to attend, especially those involved profession. We need to continue to be Attorney Discipline in or interested in pro bono services. This proactive and plan for the long-term future. . CUlTent member of Executive Committee event provides an excellent opportunity to 1 am wiling to make the commitment of of Utah Bar Commission (assists in responding meet with members of the judiciary and time and energy to serve as president-elect to day-to-day management issues of Bar) with Bar leaders and will prove to be a mem- and president of the Bar. During the years I . Long Range Planning Committee of Utah orable evening. We hope you can attend! have served as Bar Commissioner I have Bar Commission The Pro Bono Recognition Dinner is attempted to consider the needs of all Bar . Co-chair, Committee for the Equal set for: members. I enjoy talking with lawyers in a Administration of Justice June 4, 1996 variety of practices all over the state to hear I currently serve as Senior Vice President At the Capitol Rotunda what they want and need from their Bar. and General Counsel for Summit Family 5:30 p.m. Social Reception The following are some of the law- Restaurants Inc., operator of restaurant facil- 6:00 p.m. Recognition Comments related activities in which 1 have ities in 9 western states with about 4,500 & Dinner participated over the past thirteen years. employees. As with most attorneys, my job Cost $20.00 per person . Salary Survey of Utah lawyers is to solve problems for my client. I would For more information or to register, . Chair of first Pro Bono Committee of like to bring my experiences as a problem please contact Toby Brown at the Bar, 297- Young Lawyers Division solver, a business person and a lawyer to serve 7027. Please register by 5:00 p.m., May . Director of Tuesday Night Bar in Salt the Utah Bar members as their president. 24,1996. Lake and organizer of similar program in I encourage you to contact any of the Bar Law firms please note: You may wish to Ogden Commissioners about the election. sponsor a full table at the event. Program . Utah Bar Journal Committee Sponsors will be recognized as well. . MEMBERSHIP CORNER 0 CHANGE OF ADDRESS FORM Please change my name, address, and/or telephone and fax number on the membership records:

Name (please print) Bar No.

Firm

Address

City/State/Zip

Phone Fax E-Mail All changes of address must be made in writing and NAME changes must be verified by a legal document. Please return to: UTAH STATE BAR, 645 South 200 East Salt Lake City, Utah 84111-3834; Attention: Arnold BirrelL. Fax Number (801) 531-0660.

May 1996 27 Trial Academy 1996 Continues: "The Trial" Session III Set for June 27 By Paul Larsen "Direct Examination of Witnesses" The Utah State Bar is proud to be spon- soring the Lawyers' Centennial Event - an Part II of the Litigation Section's Trial designed to acquaint the novice practitioner original play written for the occasion enti- Academy 1996 was held on April 25 in with the basic skils of the trial lawyer and tled "The Raid - The Trial of George Q. Judge Dee Benson's courtroom. Judge provide some insights into the peculiarities Cannon." The play - which wil be pre-

Benson was joined on the bench by Judge of local practice. sented at an elegant premiere event on Pat Brian for opening statements in the The remaining segments of the Trial September 19 in Kingsbury Hall - is a mock wrongful death of O'Reily v. Academy 1996 are: thought-provoking look at a polygamy Bounder Transportation. June 27,1996: Direct Examination prosecution which occurred around the Plaintiff's counsel were David Jordan August 29, 1996: Cross Examination time of Utah statehood. The trial of LDS (Stoe1, Rives, Boley, Jones & Grey) and October 24, 1996: Exhibits leader George Q. Cannon becomes the cen- Gordon Campbell (lately of the United December 19,1996: Summation terpiece for a discussion of some of the States Attorney's Office). The defendant The cost is $20 per session for Litigation most controversial legal issues in Utah his- was represented by Richard Burbidge Section members and $30 for non-members. tory - religious freedom, separation of (Burbidge and Mitchell) and Scott Daniels (Section membership is $35 a year and church and state, individual liberties and (Snow, Christensen & Martineau). Keeping includes many other benefits and discounts.) the role of the federal government. things moving was Francis Carney (Suitter, Students may also enroll for all of the The play was written at the Bar's Ax1and & Hanson). All aspects of opening remaining four sessions of the Trial Acad- request by Paul Larsen and wil be directed statements in a civil case were demon- emy at a cost of $60 for Section members by Marilyn Holt, of the University of Utah strated in this entertaining two-hour and $100 for non-members. Students will Theater Department. It is a dramatic inter- seminar. receive two hours of CLE credit for each pretation of historical events which will Part III of the Trial Academy wil be segment attended. capture your imagination. This play is the held on Thursday, June 27, at 6:00 p.m. It To preserve the "courtroom" atmosphere, perfect way for Utah's legal community to is not necessary for the registrant to have enrollment for the June 27 session wil be explore centennial legal history in an enter- attended Parts I or II. The faculty and loca- limited. Given that the prior sessions were taining way - while stimulating discussion tion wil be announced. rapidly sold out, interested lawyers should of issues which are stil being debated on Experienced local trial attorneys wil register immediately for Part III by calling today's front pages. demonstrate the art of direct examination Monica Jergensen at the Utah State Bar at We are now involved in casting this of witnesses and explore the laws and pro- 531-9077. Questions on the seminar should exciting event, and we would like to cedures governing it. As with all segments be addressed to Francis Carney at Suitter, encourage any lawyers who have acting of the Trial Academy, the program is Ax1and & Hanson, 532-7300. experience and want to be part of this pro- duction to contact Lisa-Michele Church, drama event committee chair, or one of her United States Court of Appeals committee members. for the Tenth Circuit Mark the date of September 19 on your calendars to watch "The Trial!" Byron White · United States Courthouse 1823 Stout Street · Denver, Colorado 80294 continued from pg 5 Telephone: (303) 844-6017 · Facsimile: (303) 844-6437 Circuit Mediator input from its membership regarding the program. It is important that the Supreme The United States Court of Appeals for the tion to: Court be petitioned so as to ensure that our Tenth Circuit in Denver, Colorado seeks an David W. Aemmer judicial branch of government and the attorney for its appellate mediation program. United States Court of Appeals Utah Bar work together on this important Applicants should have knowledge of 1823 Stout Street project. If you have comments or sugges- federal civil practice and procedure; should Denver, Colorado 80257 tions, please send them to me by the end of have litigation, mediation, or judicial expe- Starting salary is $58,942 to $73,694 May, 1996. rience; and should present evidence of depending upon experience. Deadline: June exceptional aptitude and skills for problem 14, 1996. No telephone calls please. The solving and consensus building. Gradua- court is unable to offer for relocation tion from accredited law school and expenses. admission to highest court of a state/terri- Equal opportunity employer. tory of the United States are required. Send resume and supporting informa-

28 Vol. 9 No. 5 Fellows of the American College Northern Utah of Trial Lawyers American Inn of Court

James S. Jar- ethical standards. Honorable James Z. Davis, Utah Court dine and Alan L. The induction of Appeals, and Ogden Attorney Scott Sullivan have been ceremony at which Marriott Hadley, with the law firm of Van named Fellows of Mr. Jardine and Mr. Cott, Bagley, Cornwall & McCarthy, have the American Col- Sullivan became co-founded the Northern Utah American lege of Trial Fellows took place Inn of Court. The Northern Utah Inn is Lawyers. Created March 9, 1996 during chartered by the American Inns of Court, in 1950 to recog- the Spring Meeting originally founded by United States nize excellence in of the College in Supreme Court Chief Justice, Warren E. trial lawyers, the Tucson, Arizona. James S. Jardine Alan L. Sullvan Burger, in 1980. The Inn is dedicated to College includes More than 875 per- improving ethics, civility and professional- members from every segment of the civil sons were in attendance at this meeting. ism within the legal profession. It helps and criminal trial bar of the United States Mr. Jardine is a partner and President of lawyers sharpen their ethical awareness and Canada. Its purpose, in addition to the law firm Ray Quinney & Nebeker. Mr. and improve their skils by enabling them identifying and recognizing outstanding Sullivan is a partner and Chair of the Litigation to learn, side-by-side, with experienced trial lawyers, is to improve the standards of Section of the law firm Van Cott, Bagley, judges and attorneys. Inn members range trial practice, the administration of justice Cornwall & McCarthy. Both have been prac- from third-year law students to judges, and the ethics of the profession. Invitation ticing in Salt Lake for over twenty years. attorneys, and law professors with decades to membership is extended by the Board of of legal experience. For further information Regents, the governing body of the Col- about the Northern Utah Inn of the Ameri- lege, only after careful examination of the can Inns of Court, contact Scott Hadley in nominee's experience, skill, ability and Ogden, Utah at (801) 394-5783.

NOTICE Request for Comment OF LEGISLATIVE on Proposed Bar Budget

REBATE The Bar staff and officers are currently preparing a pro- posed budget for the fiscal year which begins July 1, 1996 Bar policies and pro- and ends June 30, 1997. The process being followed cedures provide that includes review by the Commission's Executive Commit- any member may tee and the Bar's Budget & Finance Committee, prior to adoption of the final budget by the Bar Commission at its receive a proportion- July 3, 1996 meeting. ate dues rebate for legislative related The Commission is interested in assuring that the process includes as much feedback by as many members expenditures by noti- as possible. A copy of the proposed budget, in its most fying the Executive current permutation, will be available for inspection and Director, John C. comment and the Law & Justice Center after May 31, Baldwin, 645 South 1996. You may pick up a copy from the receptionist. 200 East, Salt Lake Please call or write John Baldwin at the Bar office with City, UT 84 i i 1. your questions or comments.

May 1996 29 1996-1997 Utah State Bar Request for Committee Assignment DEADLINE - May 31, 1996

When the Utah Supreme Court organized the Bar to regulate and manage the legal profession in Utah, it defined our mission to include regulating admissions and discipline and fostering integrity, learing, competence, public service and high standards of conduct. The Bar has standing and special ~ committees dedicated to fulfiling this mission. Hundreds of lawyers spend literally thousands of hours in volunteer services on these committees. I Many committee appointments are set to expire July 1, 1996. If you are currently serving on a committee, please check your appointment letter to ~. verify your term expiration date. If your term expires July 1, 1996 and we do not hear from you, we wil assume you do not want to be reappointed, and we wil appoint someone to take your place. If your term expires in 1997 or 1998, you do not need to reapply until then. If you are not currently serving on a committee and wish to become involved, please complete this form. See bottom of this page for a brief explanation of each Committee. COMMITTEE SELECTION Applicant Information

Name Office Address Telephone

Choice Committee Name Past Service On This Committee? Length of Service On This Committee?

1st Choice Yes/No 1,2,3,3+ yrs. 2nd Choice Yes/No 1,2,3,3+ yrs. 3rd Choice Yes/No 1,2,3,3+ yrs.

ADDITIONAL COMMENTS (to included qualifications, reason for serving and other past committee affliation):

For over 60 years, the Utah State Bar has relied on its members to volunteer time and resources to advance the legal profession, improve the administra- tion of justice, and to serve the general public. The Bar has many outstanding people whose talents have never been tapped.

Instructions to Applicants: Service on Bar committees includes the expecta- between members of the Bar and clients regarding fees. tion that members wil regularly attend scheduled meetings. Meeting frequency 12. Law Related Education and Law Day. Helps organize and promote law varies by committee, but generally may average one meeting per month. Meet- related education and the annual Law Day including mock trial competitions. ing times also vary, but are usually scheduled at noon or at the end of the 13. Law & Technology. Creates a network for the exchange of information workday. Members from outside Salt Lake are encouraged to participate in and acts as a resource to Bar members about new and emerging technologies committee work. and the implementation ofthese technologies. COMMITTEES 14. Lawyer Benefits. Review requests for sponsorship and involvement in 1. Advertising. Makes recommendations to the Office of Bar Counsel various group benefit programs, including health, malpractice, disability, teim regarding violations of professional conduct and reviews procedures for resolv- life insurance and other potentially beneficial group activities. ing related offenses. 15. Lawyers Helping Lawyers. Provides assistance to lawyers with substance 2. Alternative Dispute Resolution. Recommends involvement and monitors abuse or other various impairents and makes appropriate referral for rehabili- developments in the various forms of alternative dispute resolution programs. tation or dependency help. 3. Annual Meeting. Selects and coordinates CLE program topics, panelists 16. Legal/Health Care. Assists in defining and clarifying the relationship and speakers, and organizes appropriate social and sporting events. between the medical and legal professions. 4. Bar Examiner Committee. Drafts and grades essay questions for the 17. Legislative Affairs. Monitors pending or proposed legislation which falls February and July Bar Examinations. within the Bar's legislative policy and makes recommendations for appropriate 5. Bar Examiner Review. Reviews essay questions for the February and action. July Bar Exams to ensure that they are fair, accurate and consistent with fed- 18. Mid-Year Meeting. Selects and coordinates CLE program topics, pan- eral and local laws. elists and speakers, and organizes appropriate social and sporting events. 6. Bar Journal. Anually publishes ten monthly editions of the Utah Bar 19. Needs of Children. Raises awareness among Bar members about legal Journal to provide comprehensive coverage of the profession, the Bar, aricles issues affecting children and formulates positions on children's issues. of legal importance and announcements of general interest. 20. Needs of the Elderly. Assists in formulating positions on issues involving 7. Character & Fitness. Reviews applicants for the Bar Examination to the elderly and recommending appropriate legislative action. make recommendations on their character and fitness for admission to the Utah 21. New Lawyers CLE. Reviews the educational programs provided by the State Bar. Bar for new lawyers to assure variety, quality and conformance with manda- 8. Continuing Legal Education. Reviews the educational programs pro- tory New Lawyer CLE requirements. vided by the Bar to assure variety, quality and conformance with mandatory 22. Professional Liabilty. Monitors the Bar's continuous liability insurance CLE requirements. program with carriers under a fully standard policy form. 9. Courts and Judges. Coordinates the formal relationship between the judi- 23. Small Firm and Solo Practitioners. Assesses the needs and requirements ciary and the Bar including review of the organization of the court system and of solo/small firm practitioners and develops recommendations and programs recent cour reorganization developments. to meet those needs. 10. Delivery of Legal Services. Explores and recommends appropriate means 24. Unauthorized Practice of Law. Reviews and investigates complaints of providing access to legal services for indigent and low income people. made regarding unauthorized practice of law and recommends appropriate 11. Fee Arbitration. Holds arbitration hearings to resolve voluntary disputes action, including civil proceedings. DETACH & RETURN to Steven M. Kaufman, President-Elect, 645 South 200 East, Salt Lake City. UT 84111-3834.

30 Vol. 9 No. 5 L Ii Attorneys Needed to Assist the Elderly Needs of the Elderly Committee Senior Center Legal Clinics

Attorneys are needed to contribute two they meet and are being asked to provide only months. Through these clinics, the Com- hours during the next 12 months to assist two hours of time during the next 12 months. mittee has obtained the experience to elderly persons in a legal clinic setting. The Needs of the Elderly Committee support participating attorneys in helping The clinics provide elderly persons with instituted the Senior Center Legal Clinics the elderly. Attorneys participating in these the opportunity to ask questions about their program to address the elderly's acute need clinics have not needed specialized knowl- legal and quasi-legal problems in the famil- for attorney help in locating available edge in elder law to provide real iar and easily accessible surroundings of a resources for resolving their legal or quasi- assistance. Senior Center. Attorneys direct the person legal problems. Without this assistance, the To make these clinics a permanent ser- to appropriate legal or other services. elderly often unnecessarily endure confusion vice of the Bar, participation from The Needs of the Elderly Committee and anxiety over problems which an attor- individual Bar members is essential. Any supports the participating attorneys, by ney could quickly address by simply attorneys interested in participating in this among other things, providing information directing the elderly person to the proper rewarding, yet truly worthwhile, program on the various legal and other services governmental agency or pro bono/low cost are encouraged to contact: John J. Borsos available to the elderly. Since the attorney provider of legal services. Attorneys partic- or Camile Elkington, 370 East South Tem- serves primarily a referral function, the ipating in the clinics are able to provide ple, Suite 500, Salt Lake City, Utah 84111, attorney need not have a background in substantial comfort to the elderly, with only (801) 533-8883; or Joseph T. Dunbeck, Jr., elder law. Participating attorneys are not a two hour time commitment. Parsons, Davies, Kinghorn & Peters, 310 expected to provide continuing legal repre- The Committee has conducted a number South Main Street, Suite 1100, Salt Lake sentation to the elderly persons with whom of these legal clinics during the last several City, Utah 84101, (801) 363-4300.

Ann E. LaPolla, RN, JD, MPH Ethics Opinions Available Attorney at Law The Ethics Advisory Opinion Committee of the Utah State Bar has compiled a compendium of Utah ethics opinions that are now available to members of the Bar for the cost of $5.00. Thirty eight is pleased to announce opinions were approved by the Board of Bar Commissioners the opening of her new law firm. between January 1, 1988 and January 26, 1996. For an additional $2.00 ($7.00 total) members wil be placed on a subscription list to receive new opinons as they become available durig 1996. Her practice is concentrated in the areas of · Health Care Law ETHICS OPINIONS ORDER FORM · Health Care Employment Law Quantity Amount Remitted · Physician and Nursing Malpractice Defense Utah State Bar · Professional Licensing Defense Ethics Opinions · Mediation of Healthcare Disputes ($5.00 each set)

Ethics Opinions/ She may be reached at: Subscription list ($7.00) Westgate Business Center · Suite 326 Please make all checks payable to the Utah State Bar iso South 300 West Mail to: Utah State Bar Ethics Opinions, ATTN: Maud Thurman Salt Lake City, Utah S4101 645 South 200 East #310, Salt Lake City, Utah 8411 1. Name Telephone: (SOL) 355-4566 Address Facsimile: (SOL) 355-4250 Cellular: (SOl) 573-4671 City State Zip Please allow 2-3 weeks for delivery.

May 1996 31 I'

Young Attorney Profile Hugh Matheson

By Robert O. Rice

"Go to law school, see the world," could take part in Kirton & McKonkie's growing problems inherent in being the world's be Hugh Matheson's motto. international law team. poorest continent, it is a huge, fascinating Hugh, a 1993 University of Utah Col- He takes with him litigation experience and diverse place." lege of Law graduate, took his JD to South from Fabian and Clendenin and a back- For instance, Hugh's business trips are Africa, where the thirty-six-year-01d Kirton ground in municipal bonds from Ballard, the stuff of which Isaac Dennison novels & McConkie lawyer is Africa Area Gen- Spahr, Adrews and IngersolL. are made. eral Counsel for the Church of Jesus Christ Now, Hugh's practice includes overseeing "Ballard, Spahr used to send me to San of Latter-day Saints. He oversees legal ser- all land acquisition, construction, leasing, Francisco to close municipal bond deals, vices in forty-seven sub-Saharan countries, vehicle operations, human resources and but in this job I got to live through a coup of which Hugh has already visited nine- other issues in the Church's Area office. attempt, witness a fragile cease-fire in a teen, since arriving in Africa last year. "I'm essentially the in-house counsel for civil war, and walk in the footsteps of Ras His relocation to Africa did not surprise these operations. We have local counsel in Tafari, all in one trip," Hugh said. friends and colleagues. In law school, each country that do the actual legal work. We Hugh has also observed South Africa Hugh occasionally donned a Masai-warrior seek out the top films and attorneys in each settling into its new place in history. blanket and sometimes punctuated conver- country. My role is to administer and super- "Look, South Africa stil has a long way sations with Swahili expressions. vise the legal work done by local counsel. . . ." to go. But what has happened here in the Hugh's fondness for South Africa devel- Hugh also is responsible for maintaining last few years is acknowledged by South oped after the Utah native served a 1979 the LDS Church's registration with various Africans of all races as nothing short of a LDS Church Mission in South Africa and government ministries and coordinating the miracle. And the miracle worker is Nelson Zimbabwe. odd litigation matter, which Hugh describes Mandela. The man came to the presidency "Since then," Hugh wrote in a recent E- as challenging. with overwhelming moral authority result- mail from South Africa, "I've been "I won't get into the details, but Utah ing from the dignity with which he bore his interested in the Church's expansion into lawyers should be grateful for the level play- imprisonment and the forgiveness he some of these challenging international ing field afforded by the existence of an offered his former oppressors. It's been environments and it's fun to now be watch- independent judiciary that gets regular pay- exhilarating to watch him unite the new ing things from the front lines." checks from the government," he reported. South Africa," Hugh wrote. Hugh, his wife Marcie, and four chil- Law practice aside, Hugh says Africa is Though not without challenges, Hugh dren, now including newborn, Emma, left an intriguing and varied destination. reports that the experience has been good for South Africa in the Summer of 1995, to "Africa gets in your blood. Despite the for his family. His wife, Marcie, and i i I I

i 32 Vol. 9 NO.5 I I I 1" friends have become involved in sponsor- ing a preschool in a black township. Sons Young Lawyers Select Kristin G. Brewer Dan and Patrick are thriving at an interna- as Young Lawyer of the Year tional school and have adopted rugby and cricket as their sports of choice. Hanna, By Marty Olsen three, attends preschool and is developing an interesting mix of South African and Utah accents. Finally, baby Emma spends at least an hour each day strapped to the back of her "second mother," the Mathe- son's domestic assistant, Flora. Before law school, Hugh developed a resume no doubt as eclectic as his visa is now. Hugh was Utah Democratic Party Executive Director and also worked for the LDS Church's public affairs department. During law school, he was campaign man- ager for Utah Citizens Against Paramutue1 Gambling. Hugh also served as Issues Coordinator for Kem Gardner's 1984 gubernatorial campaign and was advisor to Karen Shepard's congressional campaigns. Now, Hugh reports that he's found a The Young Lawyers Division of the Utah with children, including the Supreme Court new niche. State Bar has selected Kristin G. Brewer as Advisory Committee on Rules of Juvenile "I joined Kirton & McKonkie specifi- Young Lawyer of the Year. Ms. Brewer has Procedure, Child Protection Team, the cally to take this assignment, but it's been been active in the Young Lawyers Division Child Fatality Review Committee, the fun working with them. They are the for several years and currently works closely F.A.C.T. Steering Committee, the Child West's undiscovered international legal with the YLD Needs of Children Committee. Abuse Neglect Council, the Children's Jus- resource. Not only do they have guys like As a member of that committee, Ms. Brewer tice Center Statewide Advisory Board and me stationed around the world who have established the pro bono Guardian ad Litem the Salt Lake County Commission on developed a network of the best attorneys program in Third District Court and has Youth. She is a member of the National in each country in their regions, they also been instrumental in implementing a low Association of Council for Children and have a mini-UN in Salt Lake City. cost visitation center for court ordered American Professional Society on Child "I can fax a proclamation in Portuguese supervised visitation. Abuse (APSAC). from the Mozambique minister of justice Ms. Brewer is the director of the Office Ms. Brewer is overwhelmed with the or a purchase agreement in French from a of Guardian ad Litem. CUlTently, she chairs success of the pro bono Guardian ad Litem vendor in Madagascar, and twenty-four the American Bar Association, Young program. Currently, fifty attorneys are hours later have an English translation and Lawyers Division, Children and the Law undergoing training to serve as volunteer analysis back on my desk in Johanesburgh. Committee and is a former co-chair of the GALs in the Third District. She expresses Those kinds of capabilities are important in Utah State Bar Needs of Children Commit- her appreciation for the support of the today's increasingly global economy." tee. Prior to that, she chaired the Pro Bono members of the Bar and their response to Committee of the Young Lawyers Section. the needs of children in Utah. She also serves on many committees dealing

PLEASE DONATE! Book and Clothing Drive for Needy Children of Salt Lake

Please bring new or slightly used children's books or clothing (for ages 0-12) to the Law and Justice Center on Thursday May 30, 1996. Volunteers are needed to take the responsibility of reminding people in their firms about the drop date and to distribute literature regarding the drive. Sponsored by the Young Lawyers Division Needs of Children Committee. JIrik.back 6f'~laJ"""II,d(.."I..... +I"",,,'=n For more information about the drive contact ..er Anne Morgan at 532-1234 or Jeff Hollingworth at 531-8400.

May 1996 33 Dana L. Hayward - Liberty Bell Award

By Michael 0. Zabriskie

Each year the Young Lawyer Division comprehend anew, the scope of domestic of the Utah State Bar recognizes a non- abuse. Often asked how she deals with the lawyer for their contributions to the legal situations day in and day out; Dana profession. This year the YLD selected responds with that is her job and her Dana L. Hayward for this honor. Dana is a responsibility. She does so with enthusiasm paralegal at the Legal Aid Society of Salt and concern. Lake, and works in the Domestic Violence Dana has been the one constant in the Victims Assistance (DVVA) program. DVVA program for the last decade. She is When Dana started at Legal Aid 12 years the daughter of former County Sheriff Pete ago, there was no separate program to Hayward. Her ties to law enforcement have assist victims of Domestic Abuse. Com- benefited both sides. After Dana started at missioner Michael S. Evans, was then the Legal Aid, there was a series of bomb Director of Legal Aid and initiated the pro- threats. The response time was "astound- gram under the name SAVA (Spouse Abuse ing" with several sheriffs officers Victims Assistance). Dana became one of responding and releasing the building after the first paralegals in the new domestic a careful search. Dana personally knows violence program and has worked there many of the law enforcement officers and ever since. There have been numerous fessional helps to minimize the distress on never hesitates to call and seek their changes to the program in the last decade these victims. knowledge and information about a case. culminating in a State-wide uniform Pro- Dana is one of the best at listening and Dana has also taken part in training law tective Order System. Dana has been empathizing with victims. She is able to enforcement officers in dealing with personally involved in literally thousands explain the process and reassure them that Domestic Abuse and enforcement of Pro- of protective Orders, as well as the evolu- there is help available. "Dana is the resident tective Orders. Most officers admit that tion of the uniform documents that are now expert of Protective Orders" states a former domestic violence is one of the most diffi- being used in all the District Courts. Legal Aid attorney, "she is concise and cult situations to respond to. By providing The DVVA program provides legal rep- knows exactly how to provide the informa- insight as to the victims' traumatization, resentation to victims of Domestic Abuse tion to the Judge, saving both the client and officers are better able to understand and on a walk-in, same day service basis. Ser- the Court a lot of valuable time." Many vic- comprehend these situations. vice is provided free of charge regardless tims are unwiling or hesitant to open up and Dana worked for the State Division of of the victims' income, however, 95% of reveal the details of their abuse to a stranger. Wildlife Resources before working at the clients are at or below the poverty Dana's cheerful smile and genuine concern Legal Aid. Her outside passions include leveL. Dana is currently one of four parale- enables her to break through many of the her nieces and nephews, gardening and gals who interview victims and determine barriers and get people to communicate with shopping. Her mother says Dana always eligibility for a Protective Order. She then her. Dana often works late in order to finish wanted to be an attorney when she grew prepares the documents and the victim is with a client and puts considerable effort up. So far, she has not realized that dream, escorted to Court where the documents are into each case. With her years of experience, however, Dana has made a considerable filed and a hearing is set. At the subsequent Dana sometimes wonders if she has seen it impact on the legal profession in a mean- hearing, the abuser is present and a Legal all, then a victim wil come in with a new ingful and significant manner. Aid attorney acts as advocate for the victim lamentable encounter and she is forced to to obtain the Protective Order. State law provides that Protective Orders can be obtained pro se, however, the process can be overwhelming for traumatized victims . especially if they are illterate or semi-liter- Ground on ate. The victims must complete seven pages of instructions and documents and file them with the Court clerk. Then the John Pace, JD RN, Director documents must be taken to the Judge for signature and then taken to the Sheriff's (sliding scale for divorce & custody) office for service. At the hearing the vic- 9 Exchange Place, Suite 900 tims must represent themselves against the SLC UT 84111 abuser. The personal touch of a trained pro- phone 801.364.4999 fax 801.534 0515 34 Vol. 9 NO.5 . Justice Court Growth

By Judge John L. Sandberg

JOHN L. SANDBERG is a full time justice to the state wide area network. The Utah i 995ments was aand year changes of many for accomplish-Utah's local court judge in Weber and Davis Counties. Bureau of Criminal Identification and the courts. Justice Courts made progress in He earned a Juris Doctor from J Reuben Clark Task Force on Criminal and Juvenile Jus- five major areas: justice courts created a Law School in 1978 and a B.S. in communi- tice have cooperated with these courts in master strategic plan, several test sites cations and political science from Weber testing a method that allows justice courts were established accessing information on State University in 1975. Judge Sandberg is to obtain criminal histories, driving the state wide area computer network, currently president of the Utah Justice Court records, warrant information and vehicle Judicial Performance Evaluation for Jus- Association. He has been a member of the registration information. The goal is to tice Court Judges came closer to Utah Judicial Council Standing Committee have this information, with Utah Law on implementation, and the state's municipal on Judicial Performance Evaluation for six Disc"', available on the bench. This allows justice courts were recertified. The Admin- years. Judge Sandberg has served on the a court appearance to be more productive istrative Office of the Courts offered a Justice Court Board of Judges for six years and reduces return appearances. program of more than sixty hours of con- and is currently chairman of that board. In tinuing education for Justice Court Judges. 1993 he was honored as Utah Justice Court EDUCATION Judge of the Year and in 1989 as Law In 1990 the Justice Court Board became RECERTIFICATION Trained Justice Court Judge of the Year. He the first Utah court board to develop a core During the past year Utah's municipal is currently pursuing a Masters of Judicial curriculum. The curriculum covers infor- justice courts completed the recertification Studies from the University of Nevada, Reno mation a justice court judge would need to process. All justice courts must complete and the National Judicial College. function on the bench. The board designed this process every four years to insure each this curriculum to have a five-year cycle in court satisfies the standards. The Justice which to teach and review essentials. Some Court Standards Committee, chaired by justice courts. Utah now has 123 justice subjects would be offered annually, but Judge Lynn Payne, certified ninety-five courts, twenty-eight of which are county or most courses would be offered once or municipal justice courts as meeting the precinct courts. About fifty justice courts twice through the educational cycle. minimum requirement for staffing, physi- have closed over the last ten years. There are The goal is to annually offer sufficient cal facilities and support materials for the about 105 judges because several judges sit opportunity so each judge can easily sat- court. Each municipal judge was also certi- in more than one court. isfy the yearly thirty hour continuing fied as to continuing education and health education requirement. Three primary edu- requirements. INFORMATION ACCESS cational programs were offered this year. Three municipalities decided to close Six justice courts are test sites for access The topics ranged from computer use to

May 1996 35 records retention. Special emphasis was to the typical attorney survey, parties and potentially beneficial tasks completed in placed on statutory and appellate changes jurors were surveyed in exit polls. All parties the last year. The justice courts were the in the law, evidence and criminal proce- to the action, jurors, and other support staff, first court level in Utah to complete a dure. such as adult probation and parole and strategic master plan. There have been Our education committee is in the midst police officers were asked questions about varying degrees of concern about the future of a year long process to evaluate and the judges' performance. Experience in other of justice courts. The Justice Court Board revise the core curriculum. They are states shows no statistical difference intends the strategic plan created over the addressing the need for additional educa- between these sources and the attorney sur- last few months to answer this question. tion about domestic violence and the ever vey. The results were very encouraging, both As part of the master plan a mission shifting ground around DUI cases. because the system seemed to work and statement was created for justice courts, to Another major goal is the creation of a because of the very high approval rating of wit: "Justice courts provide a fair, impartial Legal Institute for non-law trained justice local courts and their judges. and efficient forum for local adjudication court judges. Although some need in this of issues, in an approachable and proficient area is more perceived than real, establish- manner." Goals in eight specific areas fol- ment of this institute would provide an lowed, specifically: Judicial Independence, avenue to continue improvement in justice "While Utah's local courts have Jurisdiction, Training, Technology, Admin- court competency and proficiency. istration, Funding, Public Relations, and The Legal Institute would be loosely accomplished much in the past year, Unity and Teamwork. based upon the first year of law schooL. one important issue remains to be These goals are the justice court areas Judges would study criminal law and pro- examined, retention elections for of concern for the next ten to fifteen years. cedure, evidence, contract law and torts, The Justice Court Board has developed municipal justice court judges." constitutional law and civil procedure. A objectives that are specific applications of combination of study at a law school and the goals in two to five year ranges. A final home study through video or audio tapes phase is in progress. The Justice Court could also be used and materials focused Board is creating action steps for each upon Utah law within the subject matter The survey showed an overwhelming objective to be completed in the next one jurisdiction of justice courts. vote of confidence in the justice court judge. to two years. However, after they reviewed the process, While Utah's local courts have accom- JUDICIAL PERFORMANCE the committee recommended another pilot plished much in the past year, one Over the last few years the Standing project. Two things will change in this modi- important issue remains to be examined, Committee on Judicial Performance Evalu- fied test plan. First, there will be an attempt retention elections for municipal justice ation has been struggling with a to get at least 90 percent of the attorneys to court judges. All other judges in Utah are methodology to include justice courts in complete the information. Telephone inter- subject to retention elections after their ini- performance evaluation. A primary diffi- views if necessary wil complete the tial appointment. The mayor with approval culty arises from the attorney survey used questionnaire. Second, survey managers will of the city council stil reappoints a munic- for courts of record. The attorney survey is implement a method of randomly question- ipal judge every four years. The issue of the primary tool to evaluate state court ing parties. This is necessary to avoid the retention elections for Justice Courts has judges, but creates a problem because so self selection that was inherently included in been a concern for the Judicial Council, few attorneys regularly appear in justice the survey just completed. and needs to be further addressed in com- courts. ing legislative sessions. The JPE committee emulated a process PLANNING Although actual cases of undue pressure that several other states have successfully The creation of a justice court master or failure to reappoint a qualified judge are used to gather data on judges. In addition plan was one of the most ambitious and rare, extending retention elections to all judges should improve this situation in Utah. The Judicial Council has been very supportive of this issue in the current leg- GREAT IDEA. islative session. Our Justice Courts in Utah have greatly ~\10 Advertising in the Utah Bar improved since the days of the Justice of Journal is a really great idea. the Peace holding court while plowing his field. Major strides have been made in --1 I; Reasonable rates and a circu- judicial education, competency, court facil- ( )~ .1 lation of approximately 6,000! ities and service to the public. The Justice Call for more information Court Board and the vast majority of jus- ./ tice court judges are committed to ~ \' Shelley Hutchinsen continuing these improvements for the i .. bench, the Bar and the public. ~ (801) 532-4949

I

Vol. 9 No. 5 I 36 I; .I CASE SUMMARIES ~ By Clark R. Nielsen

REAL PROPERTY, MERGER DAMAGES, CONTRACTS 1993 CIVIL RIGHTS ACTION, The provisions of a prior purchase con- The plaintiff sued the defendant Winches- SEXUAL HARASSMENT tract are merged into the warranty deed. A ter for damages for the defendant's use of The U.S. 10th Circuit Court of Appeals buyer may not sue the seller for breach of the plaintiff's one-third interest in the held that sexual abuse and harassment by a ill contract after the buyer has accepted and defendant's water system. Winchester coun- teacher against a student was not action- recorded the deed. Consequently, the attor- terclaimed for a return of the plaintiff's able under § 1983 and did not constitute ney fee provision in the contract does not one-third interest and a transfer of water and sufficient psychological harassment to cre- permit an award of attorneys' fees in for attorneys' fees for the defending the ate a cause of action for deprivation of due defending an action for breach of contract, plaintiff's claims. The various claims were process. The teacher in the defendant negligent misrepresentation and fraud after tried to a jury and at the close of the case of school district called the 9-year old plain- merger. The buyers sought to recover dam- the evidence, the trial court granted both tiff a "prostitute" on several occasions and ages from the seller after the buyers parties' motions for directed verdict on the derided the child openly in the school accepted a warranty deed with a different claims of the other. The issue of damages class. Although the teacher's conduct was property description than in the earnest and attorneys' fees on other claims were reprehensible in every respect, the panel money contract. Before closing the sale, submitted to the jury. The jury found that the concluded that there was not sufficient the sellers notified buyers that the sale plaintiff had damaged Winchester as a result physical injury to constitute a civil rights would not include certain property which of the plaintiff's unauthorized use of Win- claim under §1983. the buyers thought they were obtaining. A chester's water and that plaintiff was Abeyta v. Chama Valley Independent written statement by the buyers at closing, responsible for attorneys' fees under the School District, 10th Circuit Ct. App., purporting to reserve their rights under the "third party attorney fees rule". That rule, as Docket No. 94-2283 (February, 1996) contract, was not sufficient to overcome articulated in South Sanpitch Co. v. Pack, (Judge Logan) merger when the warranty deed was 765 P.2d 1279 (Ut. App. 1988) provides that accepted and recorded. Merger of the when the natural consequences of one's neg- ATTORNEY, CONTEMPT seller's contractual obligations into the ligence is another's involvement in a legal Salt Lake City appealed a sanction warranty deed cannot be avoided by a mere dispute the fees in that dispute are recover- imposed by the circuit court judge for the unilateral declaration by the purchaser. able as an element of damages. The court failure of the Salt Lake City prosecutor to A warranty deed is tantamount to a final affirmed the attorney fee award because the appear, pursuant to a court order. The City real estate agreement and abrogates any plaintiff failed to preserve his argument at filed a criminal information against the preliminary earnest money agreement with the trial by not objecting to the instruction or defendant and the defendant moved to dis- inconsistent terms. Merger does not apply proposing a proper jury instruction, and miss on various constitutional grounds. At when there is (1) mutual mistake, (2) ambi- failed to make its argument in any motion to a pre-trial conference, the court commis- guity, (3) existing collateral rights, or (4) the court. sioner ordered the city prosecutor to fraud. The "reservation" in the buyers clos- On the cross appeal, the court also personally appear and defend the motion to ing instructions did not preclude the affirmed the trial court's directed verdict that dismiss at the scheduled hearing. The Pros- application of merger, as the reservation the plaintiff did not owe Winchester 25 acre ecutor did not appear at the hearing but did not fall within these exceptions. The feet of water based upon separation of busi- was represented by her deputy who was buyers' reservation was simply a unilateral ness relation. When the parties separated and unprepared at the hearing and had not filed statement. The court does not discuss terminated their business relationship, they a response to the motion. The commis- whether both parties can waive the merger entered into a "water and settlement agree- sioner granted the defendant's motion to by a mutually agreed contract. In this case, ment." The court enforced the provisions of dismiss. On re-hearing, the commissioner merger could not be avoided by a unilateral that agreement. In discussing the paucity of reversed the dismissal but, as a sanction, attempt to change the terms of the transaction. argument, the court panel observed that the dismissed the information because the The merger doctrine also abrogates the mere mention of an issue without introduc- prosecutor had violated the court's order sellers' claim to attorneys' fees under the ing supporting evidence or relevant legal that she be in attendance. terms of the earnest money contract. The authority did not adequately preserve the Without oral argument on appeal, the abrogation rule applies equally to the sell- issue for appeaL. The mixed judgment by the Utah Court of Appeals reversed the sanc- ers as to the buyers. Therefore, the sellers District Court was affirmed. tion order because the order was not were not entitled to recover a reasonable Tolman v. Winchester Hils Water Company, sufficiently clear and unambiguous to be attorney fee under the contract provisions. Inc., Utah Ct. of Appeals, 930761 CA enforceable and subject to contempt for Maynard v. Wharton, Utah Court of (2/23/96) (J. Bilings, w. Js. Jackson and failure to obey. This conclusion was based Appeals, 950204-CA (2/23/96) (Judge Wilkins) upon the transcript of the hearing wherein Jackson, w. Js. Orme and Bench) it appeared that the court expected the prosecutor to be present but not specifi-

May 1996 37 cally order that she do so. In dictum, the attorney and signed, executed and delivered The Utah Supreme Court refused to majority opinion concludes that dismissal to her attorney the change of beneficiary adopt the analysis of the federal circuit of a criminal information as a sanction form prior to her death. This was all that the courts and an "outdated" advisory commit- against a prosecutor is rarely appropriate, decedent needed to do to legally affect the tee note. The Utah court, instead, adopted even when the prosecutor is in contempt of change, even though the insurance company the plain language of Rule 4(e) that "good court, which was not the case in the instant was not informed until later. A beneficiary to cause" and "excusable neglect" were not matter. an insurance policy has a mere expectancy limited, but were appropriate grounds for Salt Lake City v. Dorman-Ligh, 950166 and cannot interfere with the owner's right an extension of the time to appeal after the CA (Ct. App. 2/23/96) (Judge Wilkins, to change that beneficiary. initial 30 day period had expired. The with Js. Davis and Bench) With respect to a separate claim of con- appeal was timely because the trial court version, the court held that an owner whose found good cause to extend the time for JOINT TENANCY PROPERTY property is converted is entitled to interest as appeal and extended the appeal time. The The wishes of a mother, dying from a matter of law on the value of the property Court also affired the Court of Appeals' cancer at the time of her divorce, to pre- converted and remanded for determination ruling that persons who purport to act as a serve her assets for her children were of that interest. corporation without authority to do so were vindicated on appeaL. The decedent had Estate of Christine Cannon Knickerbocker, joint and severally liable for the debts and taken steps prior to her death to sever her Utah Supreme Court, 940206 (2/23/96) (Jus- liabilities incurred. This again imposes per- joint tenancy interests with her estranged tice Howe) sonal liability of officers and directors of a husband and to appoint her brother as her corporation and destroys the corporate attorney-in-fact to change the beneficiaries APPEALS, TIMELINESS, shield. When the defendants continued to of her life insurance in the days immedi- POST-JUDGMENT MOTIONS conduct business as usual while the corpo- ately preceding her death. A notice of appeal filed before the final ration's corporate status was suspended, A joint tenancy may be severed and the disposition of a specified post-judgment the defendants became personally liable parties' interests converted to a tenancy in motion has no effect, based upon the spe- for the corporate judgments. The decision common by one joint tenant conveying to cific language of Rule 4(b), Utah Rules of of the Court of Appeals was affrmed and himself or herself and immediately record- Appellate Procedure. the case remanded to the trial court for ing the conveyance. It is no longer Kay v. Summit Systems, Inc., 284 Utah Adv. triaL. Murphy v. Crosland, 284 Utah Adv. necessary in the State of Utah to use a Rep. 3 (2/9/96) (per curiam) Rep. 7 (2/12/96) (Justice Durham) "straw man" to sever a joint tenancy. The decision emasculates the common law APPEALS, TIMELINESS, GOVERNMENTAL IMMUNITY approach requiring a "straw man" in Nel- EXTENSION OF TIME The plaintiff's failure to timely file a son v. Davis, 592 P.2d 594 (Utah 1979), In an extension of the rule discussed in notice of claim required under the Govern- although the court does not expressly over- Kay v. Summit Systems and Swenson Associ- mental Immunity Act required reversaL. rule Nelson. The court declares the ates Architects v. State, an appellant's failure Strict compliance with the Act is jurisdic- Knickerbocker case to be distinguishable, to file a notice of appeal after the disposition tionaL. The requirement that a notice of a yet adopts the modern trend that abolishes of a post judgment motion was avoided claim be served upon the governing body the need to convey to a "straw man" in when the trial court granted a motion to of Salt Lake City did not allow the plaintiff order to sever a joint tenancy. Severance extend the time in which to file under Rule to merely provide notice upon the Salt may be accomplished by a unilateral self 4(e), Utah R. App. Proc. Lake City attorney. Dismissal on summary conveyance that sufficiently demonstrates The trial court entered summary judg- judgment was affirmed. an intent to sever joint tenancy. Also, mere ment in favor of Todd Crosland, but not Jeff Bellonio v. Salt Lake City Corp., 284 Utah severance of the joint tenancy did not place Crosland. The Court of Appeals reversed the Adv. Rep. 27 (Ct. App. 2/15/96) (Judge the property beyond the jurisdiction of the summary judgment in favor of Todd Greewood w/Js. Orme and Davis) divorce court so as to violate a restraining Crosland and remanded for triaL. On certio- order entered to prevent the disposing of rari to the Supreme Court, Todd claimed that any assets. It only changed the matter in the Court of Appeals lacked jurisdiction to which the parties held title, but did not hear the plaintiff's appeal because the notice affect their title insofar as the divorce of appeal from the trial court was not timely court's power was concerned. filed. The court also held that the decedent's Under the Kay rule, the notice of appeal brother, as the attorney in fact, was suc- was not timely filed. However, the trial court cessful in changing the beneficiary of the on showing of excusable neglect or good decedent's life insurance policy immedi- cause under Appellate Rule 4( e) extended ately prior to her death, even though the the time to file the appeaL. Todd claimed that notice of change of beneficiary was not the extension could only be made before the delivered to the insurance company until expiration of the 30 day appeal period and after the decedent's death. The brother not after. Therefore, the extension could not acted under a properly executed power of make the appeal timely.

38 Vol. 9 No. 5 Gm~

Barry Goldwater

By Robert Alan Goldberg

Reviewed by Betsy Ross

including Ronald and Nancy Reagan, Pat Quayle made a stop while on the campaign Dr. RobertSocial Goldberg'sMovements in Americacourse ison a Buchanan, and Goldwater's family members trail for George Bush in Phoenix, Goldwa- favorite at the University of Utah. He - directly from Goldberg. ter's home, Goldwater "barked a rebuke" recently received an outstanding teacher Sitting in his office at the University of concerning Bush's "flagwaving and award at the University, and now, with Utah (just next door to the U of U law exploitation of the social issue thrusts Barry Goldwater, Goldberg is receiving school at Carlson Hall), Goldberg had me against Wilie Horton" and "Harvard bou- equivalent acclaim for his scholarship. entranced with stories like his interview with tique liberals," saying "I hope you take this Along with receiving positive reviews in Ronald Reagan. Upon being introduced to kindly, but I want you to go back and tell the New York Times Book Review, the New Reagan in 1991 at the appointed time for the George Bush to start talking about the York Review of Books, the Chicago Tribune interview, the consummate gentleman Rea- issues, OK?'" and the Washington Post, Goldberg's biog- gan warmly thanked Goldberg for taking the This complaint reflects the disdain raphy of Barry Goldwater has been time to interview him. Goldberg admits he Goldwater developed in his later years nominated for the Pulitzer Prize. was thoroughly charmed by Reagan, and toward the "new conservatives" of the Heady stuff for a University of Utah indicated he would happily invite Reagan to Republican party - the Pat Buchanans, Pat history professor who once went to law his house for dinner - and in a display of Robertsons and Phyllis Schlaflys. school fearing a denial of tenure in the His- preferences educated by his own research, Although himself termed "Mr. Conserva- tory Department? In Utah parlance, "heck, also indicated that although he would also tive" by President Reagan as a tribute to no," they don't come more down-to-earth have Barry Goldwater to dinner, he would Goldwater's influence on American con- or congenial than Bob Goldberg. (Fortu- not have had Richard Nixon, Lyndon John- servatism, Goldwater found himself nately for the University and all of us, by son, or Nancy Reagan. opposed in his later years to many "conser- the way, Bob lasted one semester in law Goldberg met with Barry Goldwater per- vative" positions - particularly the school before discovering it wasn't for sonally several times, most recently in movement of conservatives into the him.) February of this year. Commensurate both "moral" arena. The biography of Goldwater is a plea- with his 90 plus years and a personality that Having followed, myself, closely the sure to read, flowing more like fiction than always tended toward bluntness, Goldberg "morality play" of our most recent legisla- the sometimes tedium of facts and figures said that Goldwater was "cranky." In fact, it tive session, in which abortion restrictions in which many biographies wallow. Even would not be uncommon to hear Goldwater were strengthened, and broad-based bans more fun, however, was hearing stories of say something like "I gave Pat (Buchanan) on teachers' free speech rights imposed in Goldwater and those who knew him - his first job, and now he's a kook." Or, as an attempt to address the issue of gay and Goldberg writes in the biography, when Dan lesbian clubs in our high schools, I asked

May 1996 39 Goldberg how Goldwater would react to that protest and the homes that protest . . . Goldwater lived through a fascinating Utah's Republican party. "Goldwater should look to their own children.''' time in our history, and truly can be cred- wouldn't understand our legislature," And, referring to laws addressing dis- ited with molding twentieth century Goldberg conceded. Goldwater did not crimination, Goldwater said, "'I am conservatism. Yet today, he finds himself at believe in the interplay of religion with the unalterably opposed to . . . discrimination, odds with many conservatives, as the law. Individual responsibility was a theme but I know that (the federa1J governent can "moral majority" asserts a larger and larger to which Goldwater would return time and provide no lasting solution. No law can influence on politics today, and govern- time again. That, combined with the fact make one person like another if he doesn't ment intrusion is sanctioned in the name of that the ultimate principle of Goldwater's want to . . . . The ultimate solution lies in the religion. At the same time that Goldberg's conservatism was limited government hearts of men." biography teaches about the life of an would make the Utah foray into the moral I also asked Goldberg what Goldwater's important historical figure, it also chroni- lives of its citizens abhorrent to Goldwater. reaction to the biography was. Goldwater cles the evolution of conservatism, toward As an example, early in Goldwater's was not an erudite individual, and chances an unknown conclusion. Goldberg ends career, he opposed legislation in Arizona are, has not read beyond the first chapter. He with Goldwater's own words about the that would have restricted the sale of alco- did read the first chapter, however, which is future. "'I don't know what's going to hap- hol within 500 yards of a school because about Goldwater's Jewish roots, and wrote a pen to all of us in this country, and while I such issues were not the government's letter to Goldberg thanking him for teaching shouldn't say it, in a way, I'm glad I'm get- responsibility, but the responsibility of the him about his Jewish heritage. The biogra- ting so damned old. I probably won't be family. He might have said, as he did con- phy is very thorough in detailing what made here to see the disaster that's heading our cerning community opposition to a Goldwater who he is, both in terms of intri- way. Can it be stopped? Yes, but I don't merchant's request for a license to sell beer cate facts about his own family, and know where they are going to find the guts and wine, that it is the minor who has to iluminating details about the times through to do it.'" get the beer, "'(nJobody is going to pour it which Goldwater lived, all of which reads down their throats. I think the churches like a psychological noveL.

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40 Vol. 9 No.5 UTAH BAR FOUNDATION - ~ Calvin Å. Behle His History, Accomplishments, Contributions And the Beginning of the Bar Foundation

One of the founders of the Utah Bar Four of Calvin's principal clients were Foundation was Calvin A. Behle. Mr. Kennecott Copper Corporation, United Behle and his late wife, Hope Eccles States Steel Corporation, Hercules Powder Behle, gave a sizable bequest to the Foun- Company, and Tracy Collins Bank & Trust. dation for the preparation of a history on Calvin was always involved in the each of the Utah Supreme Court justices. American Bar Association activities and That project is presently underway. In served both in the House of Delegates and addition, their bequest provided for the as a member of the Board of Governors, publication of a recent issue of the Utah where he was chairman of the Operations Historical Quarterly covering stories about Committee of the Board. Utah's courts, judges, and lawyers. At one point in his career, after arguing Because of the contributions made by a case before Justice David W. Moffat, Jus- Calvin and his wife, the Board of Trustees tice Moffat called Calvin into his chambers desired that a short history about Calvin be and suggested that the Utah State Bar published in the Utah Bar Journal. should have a charitable arm so that more Calvin was born on March 16, 1907, at members could contribute funds to causes Salt Lake City, Utah. His father was a that aided the improvement of the justice prominent physician associated with St. system. Under Justice Moffat's encourage- Mark's HospitaL. Shortly thereafter, at request of Secretary ment, he joined with James E. Faust, Earl He attended public school in Salt Lake of War, Calvin joined the Army Procurement D. Tanner, Sr., Junius Romney, and Charles City and graduated from East High in its Division during the time the Army was gear- Welch, Jr. to form the Utah Bar Founda- last four-year class. He did his undergradu- ing up in preparation for World War II. tion, with which he continued to be ate work at Stanford University, where he Initially, he was stationed at Fort Douglas, associated until the date of his retirement. obtained a Bachelor of Arts degree in but soon thereafter joined the Judge Advocate 1928, majoring in journalism with a minor General Corps on a top secret assignment in history. which caused his transfer, first to Washing- Calvin was encouraged to become a ton, D.C., and then to London, England, REMINDER ii lawyer by A. C. Ellis, Jr., a partner in Dick- where he served under General Tom White. son, Ellis, Parsons & McCrea. Ellis told When Calvin arrived in London, he I him he could either study law with his firm learned that his assignment was to prepare to Ballots to vote for or, to go the then-becoming popular route, become a prosecutor in one of a series of I attend law schooL. Calvin decided on the war crimes trials being planned to commence three trustees to the latter course and graduated from the Utah immediately after the conclusion of World Board of Trustees of Law School with honors in 1931. War II. At the conclusion of the war, he was Initially, Calvin practiced law with transferred to Nuremberg, Germany, where the Utah Bar Foun- Mahlone E. Wilson and Henry D. Moyle. he participated in the Nuremberg war trials. He later joined the firm of Stephens, Brayton After the conclusion of the Nuremberg dation will be mailed and Lowe. Dean Brayton of that firm orga- trials, Calvin returned to Salt Lake City and to you in May. nized the Utah State Bar and had become resumed his employment with Utah Power its first president. Under Brayton's guidance, & Light Company. After a short tour with Calvin organized the Junior Bar section of Utah Power & Light, he joined the firm of the Utah State Bar, was instrumental in Dickson, Ellis, Parsons & McCrea, Mr. Par- REMEMBER TO organizing the Salt Lake County Bar Asso- sons being then the only remaining partner. ciation, and served as president of both. Mr. Parsons decided he no longer wished to TAKE TIME He practiced law with the Brayton firm continue with his trial practice and TO MAIL for five years, and then served five years in employed Calvin to handle that portion of the law department of Utah Power & Light the firm's practice. Calvin remained with YOUR BALLOT. Company. that firm until his retirement in 1971.

May 1996 41 CLE CALENDAR- ALI-ABA SATELLITE SEMINAR: ALI-ABA SATELLITE SEMINAR: (Registration begins HAZARDOUS WASTE DRAFTING LICENSING AGREEMENTS at 5:30 p.m.) & SUPERFUND 1996 Date: Thursday, June 13, 1996 Place: To be determined Date: Thursday, May 9, 1996 Time: 9:00 a.m. to 4:00 p.m. Fee: $20.00 for members of the Time: 10:00 a.m. to 2:00 p.m. Place: Utah Law & Justice Center Litigation Section Place: Utah Law & Justice Center Fee: $249.00 (To register, please $30.00 for all others Fee: $160.00 (To register, please call1-800-CLE NEWS) CLE Credit: 2 HOURS call1-800-CLE-NEWS) CLE Credit: 6 HOURS CLE Credit: 4 HOURS SECOND ANNUAL NATIVE ALI-ABA SATELLITE SEMINAR: AMERICAN LAW SYMPOSIUM: NLCLE WORKSHOP: PARTNERSHIPS REVISITED ARCHEOLOGICAL, RELIGIOUS, LAW OFFICE MANAGEMENT Date: Tuesday, June 18, 1996 AND REPATRIATION Date: May 16, 1996 Time: 10:00 a.m. to 2:00 p.m. IMPLICATIONS FOR Time: 5:30 p.m. to 8:30 p.m. Place: Utah Law & Justice Center LAND USE AND OWNERSHIP Place: Utah Law & Justice Center Fee: $160.00 (To register, please Date: October 25, 1996 Fee: $30.00 for Young Lawyer call1-800-CLE NEWS) Time 9:00 a.m. to 5:00 p.m. Division Members CLE Credit: 4 HOURS Place: University of Utah College $60.00 for all others of Law CLE Credit: 3 HOURS TRIAL ACADEMY PART III: Fee: To be determined DIRECT EXAMINATION CLE Credit: To be determined ANNUAL FAMILY LAW Date: Thursday, June 27,1996 SECTION SEMINAR Time: 6:00 p.m. to 8:00 p.m. Date: Friday, May 17, 1996 Time: ~8:00 a.m. to 5:00 p.m. Place: Utah Law & Justice Center Those attorneys who need to comply with the New Lawyer CLE requirements, and who Fee: To be determined live outside the Wasatch Front, may satisfy their NLCLE requirements by videotape. CLE Credit: ~6HOURS Please contact the CLE Department (801) 531-9095, for further details. ENVIRONMENTAL SCIENCE Seminar fees and times are subject to change. Please watch your mail for brochures and FOR ATTORNEYS mailngs on these and other upcoming seminars for final information. Questions regarding any Utah State Bar CLE seminar should be directed to Monica Jergensen, CLE Adminis- Date: Thursday, May 30,1996 trator, at (801) 531-9095. Time: 8:00 a.m. to 5:30 p.m. Place: Utah Law & Justice Center Fee: $75.00 for Law Students CLE REGISTRATION FORM $125.00 ENREL Section TITLE OF PROGRAM FEE Members $150.00 General Registration 1. CLE Credit: 9 HOURS 2. ALI-ABA SATELLITE SEMINAR: LEGAL ISSUES FOR NON-PROFITS Date: Thursday, May 30,1996 Make all checks payable to the Utah State Bar/CLE Total Due Time: 10:00 a.m. to 2:00 p.m. Place: Utah Law & Justice Center Name Phone Fee: $160.00 (To register, please call1-800-CLE-NEWS) Credit Card Billng Address City, State, ZIP CLE Credit: 4 HOURS Bar Number American Express/MasterCardlVISA Exp. Date ALI-ABA SATELLITE SEMINAR: ) FIDUCIARY RESPONSIBILITY) Signature ISSUES UNDER ERISA ' Please send in your registration with payment to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.e., Utah 84111. The Thursday, June 6, 1996 Bar and the Continning Legal Edncation Department are working with Sections to provide a fnll complement of live semi- Date: nars. Please watch for brochure mailings on these. Time: 10:00 a.m. to 2:00 p.m. Registration Policy: Please register in advance as registrations are taken on a space available basis. Those who register Place: Utah Law & Justice Center at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. , , Cancellation Policy: Cancellations must be confirmed by letter at least 48 hours prior to the seminar date. Registration , Fee: , $160.00 (To register, please , fees, minus a $20 nonrefundable fee, will be returned to those registrants who cancel at least 48 hours prior to the seminar , , date. No refunds wil be given for cancellations made after that time. , call1-800-CLE-NEWS) , , NOTE: It is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the , , CLE Credit: 4 HOURS 2 year CLE reporting period reqnired by the Utah Mandatory CLE Board. , ______J,

42 Vol. 9 No.5 ~CLASSIFIEDADS-¡' RATES & DEADLINES date wil have substantial experience in a or help in any other way I can. $60.00 per wide variety of transactional work with pri- hour + travel expenses. Contact John Pal- Utah Bar Member Rates: 1-50 words - mary emphasis in negotiating and drafting ley (f (916) 455-6785 or Palleyj(faol.com. $20.00/ 51-100 words - $35.00. Confi- information technology contracts. Position dential box is $10.00 extra. Cancellations reports to a Deputy General CounseL. Salary ATTORNEY: Former Assistant Bar Coun- must be in writing. For information regard- commensurate with experience. Excellent seL. Experienced in attorney discipline ing classified advertising, please contact benefits. Qualified applicants should send matters. Familiar with the disciplinary pro- (801) 531-9077. resumes and salary requirements to: Human ceedings of the Utah State Bar. Reasonable Classified Advertising Policy: No Resources, P.O. Box 27447, Salt Lake City, rates. Call Nayer H. Honarvar. LAHERTY commercial advertising is allowed in the Utah 84127-0447. NO phone calls please. & ASSOCIATES, 9 Exchange Place, classified advertising section of the Jour- Suite #400, Salt Lake City, UT 84111. Call naL. For display advertising rates and Position: Executive Director of Legal Center (f (801) 583-0206 or (801) 359-8003. information, please call (801) 532-4949. It for People with Disabilities: Responsibil- shall be the policy of the Utah State Bar ties: Executive Director responsible for Legal researcher and/or librarian, part or that no advertisement should indicate any overall operation of Center's programs. full time. J.D. and 23 years experience. preference, limitation, specification or dis- Duties include implementing board policies Last seven years chief researcher of over a crimination based on color, handicap, and program priorities, providing leadership 1000 cases and in charge of library for a religion, sex, national origin or age. and direction to programs' advocacy, devel- firm. Very reasonable, negotiable salary. Utah Bar Journal and the Utah State oping annual budget, expanding Center's References available. Toni Marotz, 1182 Bar Association do not assume any respon- financial base and monitoring financial Foothil Drive #534, Salt Lake City, Utah sibility for an ad, including errors or transactions and status. Qualifications: 84108. (801) 581-1451 omissions, beyond the cost of the ad itself. Advanced degree in law, public administra- Claims for error adjustment must be made tion, social work or business. Three to five OFFICE SPACE/SHARING within a reasonable time after the ad is years' experience, preferably in disability PRIME OFFICE SPACE: Layton Barnes published. area. Demonstrated leadership, management, Bank Building. One or two attorney turn CAVEAT - The deadline for classified advocacy, development and communication key operation. Already one attorney on advertisements is the first day of each skills. Salary/Benefits: Salary D.O.E.; ben- site. Call (801) 546-1100. Ask for Erik. month prior to the month of publication. efits. Applications: Application deadline (Example: May 1 deadline for June publi- May 25. Position begins summer of 1996. LAW FIRM AT 39 EXCHANGE PLACE cation). If advertisements are received later Send letter and resume to: Susan Gorey has office space for lease with secretarial than the first, they wil be published in the Deisley, chair, Search Committee: Legal area, includes receptionist, conference next available issue. In addition, payment Center for People with Disabilities, 455 East room, fax, copier, library, parking and must be received with the advertisement. 400 South, Salt Lake City, Utah 84111. kitchen. Also available in this historical BOOKS FOR SALE building is a 844 sq. foot suite, which Mid-size Denver, Colorado law firm seeks includes small conference room and recep- ALL CURRENTLY UPDATED - LIKE NEW: associate with 2-3 years of water law and tion area, or a 440 sq. foot suite on the AmJur2d ...... $1,200.00 environmental experience. Must have strong main floor. Contact Joanne Brooks (f academic credentials. Nonsmoking offce. Send AmJur Legal Forms...... 725.00 (801) 534-0909. AmJur Pleading & Practice Forms. . .825.00 resume and writing sample to: Hiring Direc- A.L.R.2nd ...... 790.00 tor, Dufford & Brown, P.c., 1700 Broadway, OFFICE SHARING SPACE AVAIL. AL.R.3d ...... 600.00 Suite 1700, Denver, Colorado 80290. ABLE IN MURRAY with established AL.RAth ...... 600.00 PI/Real Estate/Business attorney at 6400 AL.R.5th ...... 700.00 Dynamic downtown Salt Lake City litigation South State (Meridian Title/Perry Home A.L.R. Federal ...... 3,300.00 firm seeks energetic, talented associate with Bldg.) Room for two additional attorneys. U.S.Led2nd (Supreme Ct. Rep.) . .1,467.00 1-4 years of good legal training. Excellent Shared copier, fax, conference room. Rent S.S.C.S...... 600.00 salary and benefits. All resumes received in estimated at $650 per month/per attorney. All offers wil be considered. Call (307) confidence. Send to Michael R. Roussin, (f Available first week of May. Call Denise or 352-1538 Anderson & Karrenberg, 700 Bank One Bryan (f (801) 262-8900. Tower, 50 West Broadway, Salt Lake City, POSITIONS AVAILABLE UT 84101-2006. SERVICES Staff Attorney: American Stores Com- POSITIONS SOUGHT UTAH VALLEY LEGAL ASSISTANT pany has an immediate opening in its Salt JOB BANK: Resumes of legal assistants Lake City legal department for a staff I am admitted in both CALIFORNIA AND for full, part-time, or intern work from our attorney with five to ten years experience UTAH and based in Sacramento. I will graduating classes are available upon in general corporate law. The ideal candi- make appearances anywhere in California, request. Contact: Kathryn Bybee, UVSC

May 1996 43 Legal Assistant Department, 800 West 1200 South, Orem, UT 84058 or call (801) 222-8489. Fax (801) 225-1229.

UTAH LAW AND JUSTICE CENTER CHILD SEXUAL ABUSE/DEFENSE: 645 SOUTH 200 EAST- SALT LAKE CITY, UTAH 84111 FORENSIC STATEMENT & INTER- VIEWER ANALYSIS / CHILD CREDIBILITY - Identify interviewer con- QUALITY MEETING SPACE tamination/Understand specific statement AVAILABLE FOR PROFESSIONAL, CIVIC AND COMMUNITY ORGANIZATIONS evidence in child's initial statement/Know what to demand from the prosecution. Bib- liography supporting each case. Defense THIS MODERN FACILITY PROVIDES ANY STYLE OF SEATING specialist. Bruce M. Giffen, M.S. Ameri- ARRANGEMENT AND FEATURES: can College Forensic Examiners: 1270 East Sherman Avenue, Ste. 1, SLC, Utah 84105, (801) 485-4011. REASONABLE RATES PERSONAL ATTENTION APPRAISALS CERTIFIED PERSONAL CENTRAL DOWNTOWN LOCATION FREE ADJACENT PARKING PROPERTY APPRAISALS - Estate work, Fine furniture, Divorce, Antiques, Expert AUDIO - VISUAL EQUIPMENT REGISTRATION AREA Witness, National Instructor for the Certi- fied Appraisers Guild of America. Eighteen

COMPLETE CATERING DAY OR NIGHT years experience. Immediate service avail- able. Robert Olson C.A.G.A. (801) 580-0418. FOR INFORMATION AND RESERVATIONS, CONTACT: Audio Problems? - Call the noise removal THE UTAH LAW AND JUSTICE CENTER COORDINATOR (801) 531-9077 experts. Our computer system can get that tape cleaned up and onto compact disc. If you need a tape enhanced, we can get it done. Our service is unique in Utah. Ridge Runner . . Productions - In Orem. (801) 229-1917. Plan to attend the upcoming TAX PROFESSORS WANTED: Adjunct part-time tax instructors, to teach LL.M. 1996 Utah State Bar Annual Meeting Taxation degree in a N.A.P.N.S.C. accred- to be held July 3 - 6 ited post-graduate educational program in Salt Lake City. Next part-time two year in Sun Valley, Idaho program begins Sept., 1996. LL.M. Taxa- tion degree (or M.S. Tax degree or M. Acct. Degree) and a strong tax background Hope to see you there! is preferred. Classes are held in the evening one night per week, 6 to 10 P.M., with flex- ibility for the instructor's schedule. Washington School of Law, Washington Institute for Graduate Studies. Contact /'" Dean Joslin (f (801) 943-2440 or Fax -_:-~. ~~lJt~~,,,J':I'~~fiDIi.lll~lí.~.. resume to (801) 944-8586. ..__ ~.r. LOCATE ANYONE. Defendants, wit- nesses, debtors, heirs. No charge if not found. FLAT FEE: $195.00. Nationwide Teenage and adult volunteers needed for the computer search and full scale investiga- Family Picnic and Carnival at the 1996 Utah State Bar Annual tion. FIND ASSETS. Search for real Convention in Sun Valley, Idaho property, corporations, vehicles, liens/ on July 4, 1996 at 6:30 p.m. judgments. Business or PersonaL. Call for Call Phylls Vetter at (801) 237-0271 pricing. MANHUNT INVESTIGA- TIONS.I-800-335-HUNT. . . 44 Vol. 9 No. 5 CERTIFICATE OF COMPLIANCE ForYears 19_and 19_ Utah State Board of Continuing Legal Education Utah Law and Justice Center 645 South 200 East Salt Lake City, Utah 84111-3834 Telephone (801) 531-9077 FAX (801) 531-0660 Name: Utah State Bar Number:

Address: Telephone Number:

* * CLE Hours Type of Activity

CLE Hours Type of Activity**

* * CLE Hours Type of Activity

CLE Hours Type of Activity**

IF YOU HAVE MORE PROGRAM ENTRIES, COPY THIS FORM AND ATTACH AN EXTRA PAGE **EXPLANATION OF TYPE OF ACTIVITY

A. AudiolVideo Tapes. No more than one half of the credit hour requirement may be obtained through study with audio and video tapes. See Regulation 4(d)-101(a).

B. Writing and Publishing an Article. Three credit hours are allowed for each 3,000 words in a Board approved aricle published in a legal periodicaL. An application for accreditation of the article must be submitted at least sixty days.cprior to reporting the activity for credit. No more than one-half of the credit hour requirement may be obtained through the writing and publication of an article or articles. See Regulation 4( d)- 10 1 (b).

C. Lecturing. Lecturers in an accredited continuing legal education program and part-time teach- ers who are practitioners in an ABA approved law school may receive three hours of credit for each hour spent in lecturing or teaching. No more than one-half of the credit hour requirement may be obtained through lecturing and part-time teaching. No lecturing or teaching credit is available for participation in a panel discussion. See Regulation 4(d)- 101(c).

D. CLE Program. There is no restriction on the percentage of the credit hour requirement which may be obtained through attendance at an accredited legal education program. However, a minimum of one-third of the credit hour requirement must be obtained through attendance at live continuing legal education programs.

THE ABOVE is ONLY A SUMMARY. FOR A FULL EXPLANATION SEE REGULATION 4(d)- 101 OF THE RULES GOVERNING MANDATORY CONTINUING LEGAL EDUCATION FOR THE STATEOF UTAH.

Regulation 8-101- Each attorney required to fie a statement of compliance pursuant to these regulations shall pay a filing fee of $5.00 at the time of filing the statement with the Board.

I hereby certify that the information contained herein is complete and accurate. I further certify that I am familiar with the Rules and Regulations governing Mandatory Continuing Legal Education for the State of Utah including Regulations 5-103(1).

DATE: SIGNATURE:

Regulation 5-103(1) - Each attorney shall keep and maintain proof to substantiate the claims made on any statement of compliance filed with the board. The proof may contain, but is not limited to, certificates of completion or attendance from sponsors, certificates from course leaders or materials claimed to provide credit. This proof shall be retained by the attorney for a period of four years from the end of the period of which the statement of compliance is fied, and shall be submitted to the board upon written request. f

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