Utah Bar Journal

Preserving State Constitutional Issues in the Trial Court
by Ralph Dellapiana

This article is about when, why and how attorneys may and should be using Article I, Section 14 of the Utah Constitution, instead of the Fourth Amendment, as a basis for motions to suppress evidence. Although this article is directed at the criminal defense bar, it should be of general interest to all attorneys involved in protecting clients against the abrogation of their state constitutional rights.

When case law supports an argument under the Fourth Amendment, it is frankly much simpler and easier to use it than to attempt to persuade a trial court judge to create a new rule of law. Thus, attorneys should use the Utah Constitution when the Fourth Amendment case law directly opposes their argument, and perhaps also when there is no Fourth Amendment case directly on point.

Special Masters, Receivers, and the Duty to Marshal Evidence
Chen v. Stewart
by Jessica G. Peterson

I. INTRODUCTION
During the summer of 2004, the Utah Supreme Court was invited to revisit special master law, receiver law, and Utah's duty of marshaling the evidence, in a case of family corporate contention of overwhelming proportions. The defendants contended that the trial court's appointment of an individual to act as an interim CEO, vested with the judicial immunity of a special master, was unconstitutional. The court refused to place form over substance, and did not allow choice of words and technical meaning to outweigh what it believed was in substance a just result. The unique facts in Chen v. Stewart probably will not serve as useful precedent for another close corporation's falling out. However, the case has already been cited to explain Utah's strict marshaling standard, and Chen v. Stewart is a valuable primer on Utah special master, receiver, and marshaling law.

Henriod, Dissenting
by Bryan J. Pattison

The Honorable F. Henri Henriod served on the Utah Supreme Court from 1951-1976. In that time he became well known as one of the court's most frequently dissenting justices.1 On this subject, he stated, "There are very few of these controversies that are so one-sided that a plausible opinion cannot be written to show that there is also merit on the other side."2 That's putting it mildly for this jurist. In showing there was merit to the other side he crafted opinions that ranged from scholarly, to humorous, to condescending and accusatory.

Geologic Hazard Disclosure Laws: Why They Make Sense
by Stephen Cranney and Trevor Salter

The population of Utah County is projected to double in just 25 years,1 creating tremendous demand for new housing. Such development is often built close to the mountains. This land is often geologically hazardous. Hazardous land is designated as such by state and federal geologic agencies as having an increased risk of mudslides, floods, earthquakes and other natural disasters. One recent example of the risks associated with hazardous land development is the Cedar East Townhomes subdivision in Cedar Hills, Utah County.

Gallegos ex rel Rynes v. Dick Simon Trucking - The Use of Price-of-Annuity Evidence as Present Value of Compensatory Damages
by Andrew M. Morse

In 2004, the Utah Court of Appeals decided an important case that will affect how cases involving future long term damages are tried and evaluated. Gallegos v. Dick Simon Trucking, 110 P.3d 710 (Utah Ct. App. 2004), reh'g denied, March 30, 2005, and cert. denied Sept. 19, 2005. In Gallegos, the Court of Appeals held that competent annuity evidence may be used to prove the present value of long term future damages. This article explores the case and the implications it presents for plaintiffs and defendants.

First Impressions
by Judge Carolyn B. McHugh

"Knowledge and timber shouldn't be
much used till they are seasoned."

Oliver Wendell Holmes
The Autocrat of the Breakfast Table, 1858

Because I agree with Justice Holmes and will not have been on the bench for a year until August 1, 2006, I am somewhat reluctant to share any "pearls of wisdom" at this early juncture. At the urging of my colleague and the Bar Journal's "judicial advisor," Judge Orme, I have acquiesced. There is, however, one advantage to being a rookie. I still identify strongly with those of you on the other side of the bench and am eager to provide whatever information you might find helpful. Thus, I have included my answers to the questions most frequently asked since I made this transition and have also added some observations that might help you to be a more effective appellate advocate.

Standard 17
by Scott Daniels

One area of litigation practice which frequently gives rise to unprofessional behavior is discovery. Standards 17, 18 and 19 seek to address the problems in this area.

Standard 17 addresses, among other things, the practice of attempting to wear an opponent down by using discovery to increase litigation expense. It also addresses the practice of delaying discovery of unpleasant, but clearly discoverable, facts.

President-Elect & Bar Commission Election Results

V. Lowry Snow was elected President-Elect of the Utah State Bar. He received 1,109 votes to Felshaw King's 1,078 votes.

Nate Alder and Christian W. Clinger ran unopposed in the Third Division, Robert L. Jeffs was unopposed in the Fourth Division, and Curtis M. Jensen ran unopposed in the Fifth Division. Under the Utah State Bar bylaws, these uncontested candidates were declared elected. Yvette Donosso Diaz has agreed to fill Gus Chin's unexpired one-year commissioner term in the Third Division.

Commission Highlights

During its regularly scheduled meeting of January 27, 2006, which was held in Salt Lake City, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.

1. David Bird reviewed the priority items of the June 2005 Bar Commission Retreat Governance Resolutions. David Bird also discussed the Commission priorities adopted in July 2005 by the Commission: Relations with Legislature and Courts, Performance Review, Lawyers Assistance Program and Relations with Law School Faculty and Law Students.

Applicants Sought for Second District Trial Court Nominating Commission

The Bar is seeking applications from lawyers to serve on the Second District Trial Court Nominating Commission. The Commission nominates judges to fill vacancies on the district court and the juvenile court within the Second Judicial District. Two lawyers are appointed by the Governor from a list of six nominees provided by the Bar.

Commissioners must be citizens of the United States and residents of the Second District (Davis, Morgan and Weber Counties). Commissioners are appointed for one term of four years and may not serve successive terms. No more than four of the seven members of the nominating commission may be of the same political party.

Please identify your political party or if you are politically independent.

Submit resumes to John C. Baldwin, Executive Director, by e-mail at john.baldwin@utahbar.org, or by mail at 645 South 200 East, Salt Lake City, UT 84111.

Resumes must be received by Tuesday, August 1, 2006

American Bar Association Representative

The Board of Bar Commissioners is seeking applicants to serve a two-year term as the Bar's representative to the American Bar Association's House of Delegates. The term would begin at the conclusion of the ABA's Annual Meeting in August, and run through the August, 2008 Annual Meeting.

Please send your letter of application and resume no later than Friday, June 2, 2006 to:

John C. Baldwin
Executive Director
Utah State Bar
jbaldwin@utahbar.org
645 South 200 East
Salt Lake City, Utah 84111

2005 Utah Bar Journal Cover of the Year Announced

The winner of the Utah Bar Journal Cover of the Year award for 2005 is Marva Match of Cannon & Match in Salt Lake City. Her photo of Thousand Peaks Ranch on the Weber River east of Oakley, Utah was featured on the cover of the July/Aug 2005 issue of the Utah Bar Journal.

Notice of the Utah State Bar Young Lawyers Division Elections

Nominations are being accepted for the 2006-07 President-Elect, 2006-07 Secretary and 2006-07 Treasurer for the Young Lawyers Division (ÒYLDÓ). Each nomination must be accompanied by a written statement which contains the candidate's biography, qualifications and platform. The written statement shall be no longer than the equivalent of two pages, typewritten and double-spaced. For more information regarding the elected offices and duties, please visit the YLD website (http://www.utahbar.org/sections/yld/Welcome.html) and review sections 2 and 3 of the YLD Handbook. Nominations for the offices listed above must be signed by three members of the YLD who are in good standing and must be received by 5:00 p.m. on June 16, 2006 by Ruth Hawe, VanCott Bagley Cornwall & McCarthy, 50 South Main Street, #1600, Salt Lake City, Utah, 84111; Fax: 534-0058.; Email: rhawe@vancott.com

The YLD General Election will be conducted by electronic ballot June 26-30, 2006. In order to vote, the YLD needs your email address. If the Utah State Bar does not currently have your correct email address, please send it to arnold.birrell@utahbar.org by 5:00 p.m. on June 20, 2006.

Mailing of Licensing Forms

The licensing forms for 2006-07 are scheduled to be mailed during the last week of May and the first week of June. Fees are due July 1, 2006; however fees received or postmarked on or before August 1, 2006 will be processed without penalty.

It is the responsibility of each attorney to provide the Bar with current address information. This information must be submitted in writing. Failure to notify the Bar of an address change does not relieve an attorney from paying licensing fees or late fees. Failure to make timely payment will result in an administrative suspension for non-payment after the deadline. You may check the Bar's website to see what information is on file. The site is updated weekly and is located at www.utahbar.org.

If you need to update your address information, please submit the information to:

You may also fax the information to (801)531-9537, or e-mail the corrections to arnold.birrell@utahbar.org.

2006 Fall Forum Awards

The Board of Bar Commissioners is seeking nominations for the 2006 Fall Forum Awards. These awards have a long history of honoring publicly those whose professionalism, public service and personal dedication have significantly enhanced the administration of justice, the delivery of legal services and the building up of the profession. Your award nominations must be submitted in writing to Maud Thurman, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Monday, September 18, 2006. The award categories include:

1. Distinguished Community Member Award
2. Pro Bono Lawyer of the Year
3. Professionalism Award

Notice of Legislative Rebate

Bar policies and procedures provide that any member may receive a proportionate dues rebate for legislative related expenditures by notifying the Executive Director, John C. Baldwin, 645 South 200 East, Salt Lake City, UT 84111.

Request for Comment on Proposed Bar Budget

The Bar staff and officers are currently preparing a proposed budget for the fiscal year which begins July 1, 2006 and ends June 30, 2007. The process being followed includes review by the Commission's Executive Committee and the Bar's Budget & Finance Committee, prior to adoption of the final budget by the Bar Commission at its June 2, 2006 meeting.

The Commission is interested in assuring that the process includes as much feedback by as many members as possible. A copy of the proposed budget, in its most current permutation, will be available for inspection and comment at the Law & Justice Center. You may pick up a copy from the receptionist.

Please call or write John Baldwin at the Bar Office with your questions or comments.

Pro Bono Honor Roll

Lois Baar
Lauren Barros
Richard Bird
Rex Bushman
Merlin Calver
Dee Chambers
Shelly Coudreaut
Lou Harris
D. Rand Henderson
George Hunt
Jarrod Jennings
Jonathan Jaussi
Brent Johns
Louise Knauer
David Lambert
Suzanne Marelius
Suzanne Marychild
Colin McMullin
Richard Medsker
Scott Moore
William Morrison
William Ormond
William Parsons
James Peters
Stewart Ralphs
Kevin Sheff
V. Lowry Snow
Scott Thorpe
Tracey Watson
Weston White
Timothy Williams
Lamar Winward
Carolyn Zeuthen
John Zidow

Utah Legal Services and the Utah State Bar wish to thank these attorneys for either accepting a pro bono case or volunteering at clinic during the months of February and March. Call Brenda Teig at (801) 924-3376 to volunteer.

Discipline Corner

ADMONITION
On February 10, 2006, the Chair of the Ethics and Discipline Committee entered an Order of Discipline: Admonition against an attorney for violation of 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

Message from the Chair
by Danielle Price

This year marks the 10th Anniversary of the Paralegal Division since its creation by the Utah Supreme Court in April of 1996. The Division hosted an anniversary celebration on April 6, 2006, at Rice Eccles Stadium Tower to recognize those who worked to create the Division and to continue its growth and progress. The event celebrated the accomplishments of the Division and its members over the past ten years, as well as the growth of this profession. The evening included special guest speakers, Steven Kaufman, Former Chief Justice Michael Zimmerman, Peggi Lowden, and Mary Black. The celebration wrapped up with an amazing performance by Kurt Bestor. A copy of the program for the event is available on the Division's website and contains some interesting historical information from 1996 to present. I hope you will take a moment to review the program if you have not already. We also posted several photographs from the event.