by Jeffry R. Gittins
During the 2009 General Legislative Session, almost 400 bills were passed. This article presents a brief summary of a few bills enacted during the session that may be of interest to members of the Utah Bar.
Private Attorney General Doctrine
Senate Bill 53, Awarding of Attorney Fees, abolished the private attorney general doctrine, a common law doctrine under which a court could award attorney fees to a plaintiff who vindicated a strong or societally important public policy. S.B. 53 is in direct response to the recent cases of Utahns For Better Dental Health- Davis, Inc. v. Davis County Clerk, 2007 UT 97, 175 P. 3d 1036, and Culbertson v. Board of County Commissioners, 2008 UT App 22, 177 P. 3d 621. In both of these cases, the district court had denied the plaintiffs’ request for attorney fees under the private attorney general doctrine, but the appellate court reversed the district court and held that the plaintiffs were entitled to attorney fees under the doctrine. Under S.B. 53, courts cannot award attorney fees under the private attorney general doctrine in any action filed after May 12, 2009.
Eminent Domain
Senate Bill 83, Condemnation Amendments, adds a new section to the eminent domain statutes. S.B. 83 addresses the situation in which a condemnor purchases property from a condemnee under the threat of condemnation. In such a circumstance, the condemnor must provide the condemnee with a written statement identifying the public use for which the property is being acquired. If the condemnor puts the property to the public use identified in the statement, the condemnor has no further obligations to the condemnee. However, if, after the condemnor has acquired the property, the condemnor intends to use the property for any
purpose other than the public use identified in the statement, the condemnor must offer to sell the property back to the condemnee for the original acquisition price. The condemnor must also offer to sell the property back to the condemnee if the property has not been put to public use and the condemnor intends to sell or transfer the property. S.B. 83 also provides that a condemnee can waive his or her right to repurchase the property by executing a written waiver.
Publication of Legal Notices
Senate Bill 208, Utah Public Notice Website Amendments, modifies the requirements for publication of legal notices. Under S.B. 208, any person required to publish a legal notice in a newspaper must also publish the legal notice on a website established by the collective effort of all of Utah’s newspapers. The new requirement applies to all legal notices required by a state statute, by a state agency rule, for judicial proceedings, or by a judicial decision. The new publication requirements do not take effect until January 1, 2010. Until then, legal notices will continue to be published as required by the applicable statute, rule, or judicial decision.
Open and Public Meetings
Senate Bill 26, Open and Public Meetings Act – Meeting Record, modified the Open and Public Meetings Act. Under S.B. 26, written minutes of an open meeting must be made available to
the public within a reasonable time after the end of the meeting. Written minutes of an open meeting are a public record even if they are awaiting formal approval by the public body, and
such minutes should be clearly identified with a notice that the minutes are unapproved and subject to change until formally approved. Additionally, a recording of an open meeting must be
made available to the public for listening within three business days after the end of the meeting.
Court Filing Fees
As most attorneys have probably already discovered, court filing fees have increased dramatically. Senate Bill 184, Civil Filing Fees, increased most civil fees in courts of record. For example, the filing fee for a civil complaint increased from $50 to $75 for claims of $2000 or less, from $95 to $185 for claims between $2000 and $10,000, and from $155 to $360 for claims of more than $10,000 and for unspecified claims. The fee increases took effect on May 12, 2009. For a full list of the new filing fees, you may refer to the new Cover Sheet for Civil Filing Actions, available in the Utah Courts website at www.utcourts.gov.
Small Claims Courts
Senate Bill 176, Civil Fees in Small Claims Courts Amendments, increased the jurisdictional amounts for small claims courts. Previously, a small claims court had jurisdiction if the amount
claimed did not exceed $7500, including attorney fees but exclusive of court costs and interest. S.B. 176 increased the jurisdictional amount to $10,000. S.B. 176 also increased the filing fees for small claims affidavits. The new filing fee is $60 if the claim for damages (exclusive of court costs, interest, and attorney fees) is $2000 or less, $100 if the claim for damages is greater than $2000 but less than $7500, and $185 if the claim for damages is $7500 or more. The fee for filing counter affidavits also increased. The new filing fee is $50 if the claim for damages is $2000 or less, $70 if the claim for damages is greater than $2000 but less than $7500, and $120 if the claim for damages is $7500 or more.
Firearms
Two important laws were passed relating to firearms. House Bill 357, Firearms Amendments, permits a person to carry a concealed firearm in his or her vehicle. Additionally, a person may carry a concealed firearm in another person’s vehicle with the other person’s permission. Under Senate Bill 78, Protection of Constitutionally Guaranteed Activities in Certain Private Venues, a business may not prohibit individuals from storing a firearm in a vehicle in the business’s parking lot if the firearm is locked in the vehicle or in a locked container attached to the vehicle and the firearm is not in plain view. S.B. 78 also permits the Attorney General to bring an action to enforce the law.
Employment Law
House Bill 206 enacted the Employment Selection Procedures Act, which applies to all employers who have more than fifteen employees. Under H.B. 206, employers are required to develop and maintain a specific policy regarding the retention, disposition, access, and confidentiality of information obtained through a job application process. If an applicant requests to review the policy before applying for a job, the employer must provide the applicant the opportunity to do so. Employers are prohibited from asking for an applicant’s Social Security number, date of birth, or driver license number before the applicant is offered a job, except under limited circumstances. Additionally, employers are prohibited from retaining selection process information, such as resumes and applications, for more than two years after the
applicant submitted the information. Finally, H.B. 206 limits how employers can use information obtained through the selection process. Employers cannot sell the information and are prohibited from using the information for marketing, profiling, or other similar purposes.
Land Use
Senate Bill 153, County and Municipal Land Use Amendment, prohibits municipalities and counties from requiring a person filing a land use application to obtain documentation regarding a school district’s willingness, capacity, or ability to serve the proposed development. Municipalities and counties cannot impose a land use application fee that exceeds the cost of processing the application, nor can municipalities and counties impose an inspection or review fee that exceeds the cost of performing the inspection or review. Additionally, upon the request of a land use applicant, municipalities and counties are required to provide the applicant with an itemization of each fee imposed, showing the basis of the calculation for each fee.
Water Law
As a lawyer who practices primarily in the area of water law, I would be remiss if I did not include something related to this area of law. House Bill 18, Water Rights Applications and
Records, provides that if a public water supplier is holding an approved application to meet the reasonable future water requirements of the public, it is deemed to be reasonable and due diligence in completing the appropriation or change. This essentially entitles the public water supplier to an extension of time to complete the appropriation or change. H.B. 18 also amends the law on requests for segregation. Previously, the State Engineer had discretion to approve or deny a request to segregate a water right. Under H.B. 18, if a water rights owner requests that a water right be segregated into two or more parts, the State Engineer is required to segregate the water right. H.B. 18 also permits a water right owner to consolidate water rights. Previously, the law allowed water rights to be segregated, but there was nothing in the law that allowed the water rights to be rejoined into a single water right. H.B. 18 permits the State Engineer to consolidate two or more water rights if the water rights are from the same source, have the same priority, and are sufficiently similar in definition.
Conclusion
This article is intended to provide a short summary of only a handful of the laws passed by the Utah Legislature in 2009. You can access the full text of the bills discussed in this article, along
with the full text of all other bills, on the Utah Legislature’s website at www.le.utah.gov. Additionally, you can access bill status and
voting information, floor debate audio files, committee reports and minutes, and lots of other valuable information relating to the legislative process. The legislature’s website is a valuable
resource that should be “bookmarked” on your computer for future reference.