Utah Bar Journal

Recodification and Revision of Title 78, Judicial Code
This past session the Utah Legislature revised and recodified Title 78, Judicial Code, with an immediate effective date of February 7, 2008. With the enactment of H.B. 78, the Utah Legislature reorganized Title 78 into the following separate titles: Title 78A – Judiciary and Judicial Administration and Title 78B – Judicial Code. Title 78A includes chapters which address the state courts, their administration, and judicial selection. Title 78B includes chapters governing juries and witnesses; statutes of limitation; actions, venue, procedure and evidence; and family and child support and protection acts.

Subsequent technical amendments to Title 78A and 78B were made with the enactment of S.B. 278 which, among other things, provides that the enactment of H.B. 78 shall result in no loss of rights, interruption of jurisdiction or prejudice to matters pending in any court on February 7, 2008. When citing the Judicial Code, cite either Title 78A or 78B, as appropriate. Except for purposes of matters pending in any court beginning February 7, 2008 through August 31, 2008, a citation to the previous Title 78 will be erroneous.

With the enactment of S.B. 205, Utah Uniform Interstate Depositions and Discovery Act, Chapter 17 was added to the new Title 78B - Judicial Code. S.B. 205 authorizes, and provides a process for, a non-resident party involved in a civil action in Utah to issue and serve subpoenas in Utah. Parties resident in another state, however, may not use the provisions of this bill unless their home state has also enacted this uniform act or provisions substantially similar thereto. While a request for the issuance of a subpoena under this bill does not constitute an appearance in a Utah court, nothing in this new chapter of the Judicial Code may be construed to exempt an attorney from otherwise complying with Utah law as it applies to the unauthorized practice of law or the requirements of the Utah Rules of Civil Procedure governing limited appearance. In applying and construing this Act, consideration will be given to the need to promote uniformity of the law among the states that enact it.

Water Rights
With the passage of H.B. 51, Water Rights Amendments, the Utah Legislature enacted a bill that will potentially affect almost every water user in the state. At issue is the potential forfeiture of water rights for nonuse. The primary purpose of H.B. 51 is to protect public water suppliers from forfeiture of water rights needed to meet the reasonable future water requirement of the public. This protected future water requirement is defined as the water needed for the next 40 years within the public water supplier’s projected service area based on projected population growth or other water use demand. A community water system’s projected service area is the area served by the system’s distribution facilities and expands as those distribution facilities expand.

In addition to the exemption for public water suppliers, H.B. 51 also creates exemptions from forfeiture for: (a) water rights used according to a lease or other agreement, (b) water rights approved for use on land subject to an approved government fallowing program, (c) water rights that are subject to an approved change application that is diligently pursued, (d) water rights to store water in accordance with the Groundwater Recharge and Recovery Act, (e) water rights for water that is unavailable due to the priority of the water right, and (f) supplemental water rights when sufficient water is available under other water rights.

H.B. 51 also changes the time period after which a water right is subject to forfeiture for nonuse from five to seven years; clarifies that a water right may only be forfeited through judicial action; simplifies the nonuse application process; and allows a shareholder to file a nonuse application. H.B. 51 became effective May 5, 2008, and amended Section 73-1-4 of the Utah Code.

Immigration
During the 2008 session, the Utah Legislature also adopted S.B. 81, Illegal Immigration, an omnibus immigration bill covering a host of topics. Missing from S.B. 81, however, are provisions addressing the controversial state programs that offer in-state tuition and driving privilege cards for undocumented immigrants. A separate bill that would have repealed the in-state tuition waiver failed in the Senate. While driving privilege cards were also spared, more limitations were placed on those cards with the passage of H.B. 171. For example, under H.B. 171, the driving privilege cards cannot be used to verify age or establish identification or residence for such purposes as purchasing alcohol or firearms and will be revoked for uninsured drivers.

Taking a closer look at the new immigration law, the Utah practitioner will find that in the area of employment public employers and contractors that contract with public employers will be required to register with and use a “Status Verification System” to verify the employment eligibility status of new employees, and that it will be unlawful for any “employing entity” to discharge a U.S. citizen or permanent resident alien working in Utah and fill the discharged employee’s position with an unauthorized alien. With regard to securing public benefits, S.B. 81 requires that an adult applicant for such benefits certify his or her legal presence in the United States under penalty of perjury and subject to other penalties for false statements. S.B. 81 also provides for the creation and issuance of identification documents and, subject to the availability of funding, for the establishment of a Fraudulent Documents Identification Unit to investigate, apprehend and prosecute individuals who sell fraudulent identification documents for persons unlawfully residing in the state. Under S.B. 81, transporting an illegal alien into or within the state for a distance of more than 100 miles for financial gain or commercial advantage, or knowingly concealing, harboring or sheltering an illegal alien for financial gain or commercial advantage will be a Class A Misdemeanor. In addition, local law enforcement personnel can expect to shoulder a heavier load when it comes to the enforcement of federal immigration laws as a result of S.B. 81. This new law further requires a county sheriff to make a reasonable effort to determine the citizenship and immigration status of a person confined to jail for a period of time. Finally, under S.B. 81, a person not lawfully present in the U.S. may not be issued a private club or restaurant liquor license.

Illegal immigration is complex and has far reaching implications for our state as well as our country. Fortunately, with a delayed effective date of July 1, 2009, there will be time for further consideration of immigration issues before S.B. 81 takes effect.

Town Incorporation Process Amendments
With the enactment of H.B. 164, the Utah Legislature addressed the inadvertent consequence of last year’s H.B. 466, which allowed developers to create new towns with minimal public involvement and often without the support of area residents. Under H.B. 164, the process to incorporate a town is now initiated by the filing of a request for a public hearing that must be signed by the owners of at least five separate parcels of land, each owned by a different owner, located within the proposed area for the town. Within three months of the public hearing, a petition to incorporate may be filed. The petition must be signed by a majority of all registered voters within the proposed town and the petition’s sponsors cannot own more than 40% of the private land to be incorporated. The county in which the proposed town is located also has the option under H.B. 164 to commission a financial feasibility study for the proposed town. Finally, unlike prior law, the initial officers of the newly incorporated town must now be elected rather than appointed.

Local Government
In the realm of local government law, newly effective S.B. 53, Use of Initiative and Referendum for Administrative Land Use and Zoning Matters, is already creating a stir. The bill prohibits the use of local initiatives for land use ordinances and changes therein and precludes the implementation of a land use ordinance adopted by the local legislative body from being submitted to approval by the voters. In at least two counties, issues have been raised regarding the scope of S.B. 53 and whether it bans referenda on all local land use ordinances. If so, its constitutionality may be subject to challenge. Land use ordinances enacted as a legislative, as opposed to an administrative, act of a local governing body have been held to be subject to referendum in accordance with the Utah Constitution which provides that voters may initiate legislation and require new laws to be approved by referendum before they go into effect.

Real Property
H.B. 223, Exemption from Licensure by Division of Real Estate, grants an exemption from state licensure by the Division of Real Estate to a county employee when, on behalf of the county, such employee is engaged in acquiring or disposing of real property, providing property management services or leasing real property. This is an extension of the exemption granted last year to certain state and municipal employees.

The enactment of H.B. 323, Eminent Domain Amendments, clarifies that the right of eminent domain may not be exercised for the purposes of trails, paths and other ways for recreational use, including walking, biking, and equestrian use. In addition, while public parks are generally considered a public use for which the right of eminent domain may be exercised, H.B. 323 now excludes any park whose primary use is for a trail, path or other way for walking, hiking, bicycling, or equestrian use or as a connector to other trails, paths or other ways for such uses.

S.B. 92, Real Property Recording Amendments, makes certain changes to the laws governing the recording of real property documents and the duties and responsibilities of county recorders. S.B. 92 provides that the county recorder is required to endorse a document only upon acceptance, rather than upon receipt and forbids documents not conforming to the law from being presented for recording. In addition, S.B. 92 specifically authorizes the recording of a notice of acknowledgment and supporting affidavit purporting to establish or affect the state’s property interest in a R.S. 2477 right-of-way.

H.B. 486, Wrongful Liens and Wrongful Judgment Liens, amends the Utah Code provisions related to the filing of and an action against a wrongful lien. Under H.B. 486, a wrongful lien is now defined to include a notice of interest and a person against whom a wrongful lien is filed may now recover a larger statutory damage amount.

Miscellaneous
Two bills amending the Notaries Public Reform Act were also enacted this past legislative session. H.B. 26 amends the definition of “satisfactory evidence of identity” to include a passport or other personal identification document issued by the federal government, any state government or a foreign government, but specifically excludes a driving privilege card. S.B. 114 allows an attorney who is named in a document to notarize the same provided that the attorney is listed in the document only as a representative of the signer or another person named in the document.

In the criminal law arena, the following two bills were enacted. Under H.B. 10, Disclosure of Identity to Officer, failure to disclose your identity to a peace officer upon demand after being stopped on reasonable suspicion that you committed, are in the process of committing or attempting to commit a crime will be a Class B Misdemeanor. With the enactment of H.B. 70, Expungement Law Amendments, a person who has received a pardon from the Utah Board of Pardons and Parole is entitled to an expungement of all pardoned crimes other than a capital, first degree or second degree forcible felony, a “driving while under the influence” felony, automobile homicide, and certain sex related offenses.\

Conclusion
In closing, your attention is directed to www.le.state.ut.us, where the full text of the bills discussed herein and all the laws enacted during the 2008 general session can be found. The Utah State Legislature’s website is a valuable resource that should be “bookmarked” on your personal computer.