by Justice Ronald E. Nehring
Editor’s Note: Supreme Court Justice Ronald E. Nehring and Court of Appeals Judge Carolyn B. McHugh addressed some of the last year’s important Utah appellate decisions at an Appellate Practice Section luncheon on April 20, 2009. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might
find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, Justice Nehring’s handout is reprinted here. (Judge McHugh’s handout was
reprinted in the July/August issue of the Bar Journal.) Especially because readers will not have the benefit of the commentary provided by the speakers, readers are cautioned that the
summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.
State v. Moreno, 2009 UT 15, 203 P.3d 1000
Area of law: Juvenile, Fourth Amendment
Mr. Moreno’s minor daughter was adjudicated delinquent for drug-related offenses. As part of her adjudication, the juvenile court ordered Mr. Moreno to submit to drug testing based on
various findings and an allegation that Mr. Moreno and his girlfriend were “cooking meth in the hills.” Mr. Moreno appealed the juvenile court’s contempt charge against him for failure to
submit to the court-ordered drug testing.
The court held that although juvenile courts are granted broad authority to impose orders on parents and hold them in contempt for failure to comply, this broad authority is limited to mandates that are reasonable. The court held that a reasonable condition must further the goals of the Act in that the sole motivation must be reforming the minor’s behavior and there must be a logical connection between the alleged actions of the parent, the delinquent behavior of the minor, and the court-ordered condition. In addition, a condition cannot be reasonable if it violates constitutional rights. The court held that the standard for determining whether an administrative search is reasonable requires a balancing of the government’s interest in operating its institutions and the individual’s privacy interest. Key to this inquiry is an examination of whether the parent has a reduced expectation of privacy when their child is adjudicated delinquent. The court held that because a parent of a delinquent child did not have a reduced expectation of privacy, the government interest did not outweigh the privacy interest and probable cause was required for the search of Mr. Moreno. Because there was no probable cause for the search, the juvenile court’s decision was reversed. Justices Durrant and Wilkins dissented. They would have held that whether Mr. Moreno’s expectation of privacy was reduced was irrelevant to the assessment of reasonableness.
Helf v. Chevron, 2009 UT 11, 203 P.3d 962
Area of law: Personal Injury, Workers’ Compensation
Jenna Helf sued Chevron U.S.A., Inc., for injuries she sustained while working at the Salt Lake City Refinery. On the day Ms. Helf was injured, Chevron initiated a chemical reaction in an open-air pit that created a toxic cloud and set off chemical alarms at the Refinery. Several workers were sent home due to illness. When Ms. Helf arrived for her shift, her supervisor had her initiate the same reaction without informing her of the earlier result and without informing her that she needed special respiratory equipment. When Ms. Helf initiated the reaction, toxic gasses were again released, which caused Ms. Helf to vomit and lose consciousness. As a result of her exposure to the toxic gases, Ms. Helf now suffers from a permanent seizure disorder. Ms. Helf was awarded compensation under the Workers’ Compensation Act. She also brought suit against Chevron, alleging willful misconduct, intentional nonfeasance, negligent infliction of emotional distress, and intentional infliction of emotional distress. Chevron filed a 12(b)(6) motion, arguing that the exclusive remedy provision of the Workers’ Compensation Act
barred Ms. Helf’s claim. The district court granted Chevron’s motion and Ms. Helf appealed.
Although compensation under the Workers’ Compensation Act is normally the exclusive remedy for a worker injured on the job, if the injury is intentional, the worker may bring a tort
action against the employer. The level of intent necessary to trigger the intentional injury exception was the focus of this case. The court affirmed the intent to injure standard articulated in Lantz v. National Semiconductor Corp., 775 P.2d 937 (Utah Ct. App. 1989), but clarified how it is to be used to distinguish between intentional and accidental injuries. The court held that the
purpose of the “intent to injure” standard was to distinguish between intentional and accidental or unexpected injures. Ultimately, intent to injure
requires a specific mental state in which the actor knew or expected that injury would be the consequence of his action. To demonstrate intent, a plaintiff may show that the actor desired the consequences of his action, or that the actor believed the consequences were virtually certain to result. But a plaintiff may not demonstrate intent by showing merely that some injury was substantially certain to occur at some time. For a workplace injury to qualify as an intentional injury under the Act, the employer or supervisor must know or expect that the assigned task will injure the particular employee that undertakes it.
Applying this test to the facts of the case, the court held that there were facts to support an allegation that Chevron intentionally injured Ms. Helf when it sent her to initiate the chemical reaction. Justice Wilkins dissented in part. He reasoned that Ms. Helf had elected her sole remedy when she sought workers’ compensation and was foreclosed from seeking civil damages.
Smith v. Mosier, 2009 UT 3, 201 P.3d 1001
Area of law: Bankruptcy
Ms. Smith filed for Chapter 7 Bankruptcy in December 2006. After Ms. Smith filed her taxes for 2006, she discovered that she had overpaid and was entitled to a refund. She then filed an Amended Schedule B in her bankruptcy, claiming that the refund was exempt since all of her taxable income came from social security and retirement payments, which are exempt. The
bankruptcy court disallowed her claim, and Ms. Smith appealed. The United States Bankruptcy Appellate Panel of the Tenth Circuit certified the case to the supreme court for a determination of whether, under Utah law, an overpayment of taxes is exempt when the monies with which the tax deposit was made were exempt.
Because Utah Code section 78B-5-507 recognizes that exempt property may remain exempt if the debtor utilizes reasonable methods of tracing, the court held that monies refunded to a
taxpayer as an overpayment of taxes are exempt if the monies were withheld from exempt income and there is a reasonable method of tracing. Therefore, in Ms. Smith’s case, the court
held that the recordation of taxes and refunds is a reasonable method of tracing.
Southern Utah Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88, 200 P.3d 643
Area of law: Government Records Access and Management Act
The Automated Geographic Reference Center is statutorily obligated to provide geographic information services to state agencies, the federal government, and private persons. The
main service provided by the Reference Center is the maintenance of the State Geographic Database. Included in this database are records of R.S. 2477 rights-of-way, which the Reference Center is statutorily required to compile. See Utah Code section 72-5-304(3)(a).
Currently, the state of Utah and Garfield County are litigating the existence of numerous R.S. 2477 rights-of-way. SUWA submitted a GRAMA request to the governor’s and attorney general’s offices seeking all records relating to routes the state and county were claiming as R.S. 2477 rights-of-way. The attorney general released some files but otherwise denied the request, asserting that GRAMA did not require the documents to be disclosed. SUWA then sent a more specific GRAMA request to the Automated Geographic Reference Center, largely seeking geographic information service data, which would include photographs. The Reference Center denied the request claiming that the records were not public, but even if they were, they were protected under GRAMA’s exceptions for work-product, attorney-client privilege, and draft
documents. The Reference Center also claimed that SUWA’s request to the Reference Center was duplicative of its request to the governor’s and attorney general’s offices. On appeal from
administrative proceedings, the district court determined that the requested information was protected as attorney-client and work-product documentation. We reversed.
First, addressing the Reference Center’s argument that the records were not public, the court reemphasized that documents are presumptively public, and a statute must explicitly define
records as nonpublic or create a conflict with GRAMA in order for records to be nonpublic. Reviewing the statutory origins for the R.S. 2477 documents, the court held that the statute did not explicitly deem the R.S. 2477 records private, nor did it create a conflict with GRAMA; therefore, the documents were public. Second, addressing the GRAMA exceptions, the court held that the documents were not work product because they were not prepared in anticipation of litigation nor did they contain legal theories; instead they were prepared by the Reference Center under a statutory mandate and in the ordinary course of business. The court also held that R.S. 2477 records were not attorneyclient communications because the Reference Center had no attorney-client relationship with the municipal bodies that supplied the records, and the various entities supplying the records did not do so in an effort to seek legal advice. Again we noted that the records were created and incorporated into the state database as required by statute. Next, the court held that the R.S. 2477 records were not drafts because the database and its contents were created for various public entities and not just the originator of each record. Finally, the court held that SUWA’s records request to the Reference Center was not duplicative of its request to the governor’s and attorney general’s offices. We explained that to be duplicative, a request must be made to the same entity, and because the Reference Center and governor’s office and attorney general’s office are all different agencies, they are different entities; therefore, the court held that SUWA’s requests were not duplicative.
During the 2009 general legislative session, the Utah Legislature amended GRAMA with House Bill 122, which expanded protection to documents prepared in anticipation of litigation under the
work-product and attorney-client communication exceptions.
Fox v. Park City, 2008 UT 85, 200 P.3d 182
Area of law: Property, Local Land Use Authority
Eight months after the city issued a building permit, Mr. and Ms. Fox noticed that the building being constructed seemed to exceed Park City’s height restriction. The Planning Commission
rejected the Foxes appeal of the building permit on the grounds that the appeal was filed after the 10-day limitation set by the Land Management Code. The Planning Commission designated
the issuance of the building permit as the triggering event for the running of the appeal period. The district court upheld the Planning Commission’s determination, and the Foxes appealed.
The court first found that the 10-day appeal period of Utah Code section 10-9a-704 rather than the 10-day appeal period in the Land Management Code was the appropriate statute of limitations. Next, the court held that the appeal period under section 10-9a-704 begins to run when the affected party has actual or constructive notice of the issuance of a permit. The mere issuance of a building permit is not constructive notice because Utah law does not require
that notice of a building permit be given to neighboring landowners.
The commencement of construction, however, is constructive notice that a building permit has been issued. In this case, the district court’s dismissal was upheld, even though the court found
that the district court’s test was in error, because the Foxes did not appeal until they noticed the possible violation, several months after construction had commenced.
Sevier Power v. Hansen, 2008 UT 72, 196 P.3d 583
Areas of law: Constitutional, Power of Initiative
The Board of County Commissioners approved an initiative to be placed on the general election ballot that would require coal-fired power generating facilities to get voter permission before building. Sevier Power sued the Board to remove the initiative, relying on Utah Code section 20A-7-401, which forbade initiative and referenda on land use matters.
The court found that the Utah Constitution vests legislative power in the people as well as the legislature. The court recognized that the legislature had power to establish procedures and conditions for initiatives and that administrative actions were not subject to initiative. However, the court found that this initiative was legislative in nature because it changed the overall framework of issuing conditional use permits. As such, the legislature could not limit its scope and Utah Code section 20A-7-401 was an unconstitutional infringement on the people’s right to initiative.
Downing v. Hyland Pharmacy, 2008 UT 65, 194 P.3d 944
Area of Law: Torts, Negligence
From 1996 to 2000, Hyland Pharmacy filled Mr. Downing’s prescription of fen-phen. Mr. Downing sued the pharmacy for negligence, alleging that it had continued to fill his prescription
of fen-phen after the FDA and the manufacturer had withdrawn it from the market. The district court granted summary judgment for the defendant, holding that under no circumstances could a pharmacy be liable for filling a prescription issued by a physician under Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 2003 UT 43, 79 P.3d 922.
The court reversed summary judgment and distinguished Schaerrer on the grounds that in that case, the court refused to find the pharmacist had a duty to warn of a medication’s general side effects when the pharmacist filled a physician-ordered prescription that had been approved by the FDA. The court held that the facts alleged by Mr. Downing state a cause of action for negligence as a matter of law because a pharmacist has a duty of reasonable care when issuing prescriptions not approved by the FDA. The court remanded the case to the district court to determine the appropriate standard of care.
State v. Rosa-Re, 2008 UT 53, 190 P.3d 1259
Area of Law: Criminal, Jury Selection
Mr. Rosa-Re was tried and convicted of forcible sexual abuse. Just prior to the names of the jury being announced, defense counsel requested a sidebar conference and said, “I think given
the seriousness of the charges we’re probably going to need the record to make a Batson challenge. Just wanted to make everybody aware because of the sixteen perspective jurors that we had left after the for-causes, four were men, three were stricken by the state.” Defense counsel did not mention the Batson challenge again until after the jury found Rosa-Re guilty. Mr. Rosa-Re appealed and the court of appeals held that his Batson challenge was untimely. The supreme court granted certiorari on the issue of whether Mr. Rosa-Re’s Batson challenge was timely.
The court held that the objection, raised prior to the jury being sworn in and venire being dismissed, raised Batson in context of jury selection and noted that the state had stricken three men. The court held that the objection was timely, but it noted that counsel in the future would be wise to clearly state that they are making a Batson challenge and state the basis for the objection.
Conatser v. Johnson, 2008 UT 48, 194 P.3d 897
Areas of law: Property, Public Easement
In June 2000, the Conatsers floated in their raft down the Weber River. While doing so, they crossed land belonging to the Johnsons and touched the river bed in four ways: the boat occasionally scraped against the bottom, the oars occasionally touched the bottom, the fishing tackle touched the bottom, and Mr. Conatser walked along the river bottom to fish and move
fencing. The Conatsers were cited with criminal trespass.
The court found that the public’s easement in state waters includes the right to engage in all recreational activities that utilize the water and does not limit the public to activities performed upon the waters. The public has the right to touch privately owned beds of state waters in ways incidental to all recreational rights because this right is reasonably necessary and convenient for the effective enjoyment of the easement. In so holding, the court stated that this public right was not an additional burden on landowners but merely an existing burden arising from the public easement.
Bybee v. Abdulla, 2008 UT 35, 189 P.3d 40
Areas of law: Wrongful Death, Arbitration Agreements
Mrs. Bybee’s husband committed suicide. Mrs. Bybee brought a wrongful death action against Dr. Abdulla, who had been treating Mr. Bybee for allergies and who had given him a prescription
for anti-depressants and subsequently increased the dosage.
Dr. Abdulla moved to stay the district court action and compel arbitration pursuant to an agreement that Mr. Bybee had signed. Dr. Abdulla appealed.
The court held that the arbitration agreement was unenforceable against Mr. Bybee’s heirs. It rejected Dr. Abdulla’s assertion that Mr. Bybee was the “master of his claim” and thus could bind his heirs to arbitration for two reasons: (1) the phrase “master of his claim” used in Jenson only stood for the proposition that a wrongful death action cannot be brought if the decedent settled, won, or lost prior to his death; and (2) the Utah Constitution affords special protection to wrongful death actions. In Utah, a wrongful death cause of action, while derivative of the underlying personal injury claim, is a separate claim that comes into existence at the death of the injured person, and this independent nature means that heirs are not subject to the decedent’s agreement to arbitrate. The court then found that nothing in the Arbitration Act can be understood to bind strangers to the agreement in future controversies. The 2004 amendment to the Act, stating that non-signatories are bound by arbitration agreements if their claim stems solely from the injury of a signatory, does not encompass a wrongful death claim. A wrongful death claim has an independent basis from injury to the signatory of the arbitration agreement.
The court also found that Mrs. Bybee was not bound to arbitrate as an intended beneficiary to the agreement.