Allred sought the credentialing file of Saunders and an incident report from a hospital during discovery in their medical malpractice suit. Saunders objected and eh district court overruled the objection ruling the rules of civil procedure cannot create privileges and thus only the incident report was protected under statute and the report was ordered delivered to the court for in camera review. The Court reversed and remanded. It held that the legislatively enacted amendments to Rule of Civil Procedure 26 were passed by the required two-thirds majority, plainly establish privileges for care review and peer review processes, the rules of evidence themselves identify other rules adopted by the Utah Supreme Court as sources of privileges and the district court erred in failing to apply the language of the rule. The Court set out the procedure for anyone claiming a care review or peer review privilege namely that the claimant must provide a privilege log sufficiently detailed to allow the trial court and opposing party to evaluate the claim. District court can review the documents in camera, but, are not required to do so. Read More
Utah Court of Appeals holds exclusionary rule does not apply in child welfare cases, that claim preclusion applies in civil stalking cases and issues six other decisions
At the child welfare hearing in his case, D.T.O. moved to exclude evidence seized pursuant to a warrant, objected to an expert testifying without proper notice being given and challenged the chain of custody of a thumb drive. The juvenile court ruled the exclusionary rule did not apply, granted a continuance to allow proper notice and admitted the thumb drive after additional testimony as to how the thumb drive was recovered and stored. The court ruled D.T.O. neglected his children and exploited one child and placed all six children in state custody. The panel affirmed. It held the Utah constitutional exclusionary rule did not apply in child welfare cases as parents are not punished at such proceedings and any limited deterrence value was substantially outweighed by the need to protect children. It affirmed as to the expert holding the juvenile court properly ordered a modification under Juvenile Procedure Rule 20A and thus the testimony was properly allowed. It finally held that the additional testimony satisfied the chain of custody requirement as the actual location of recovery in this case did not matter. Read More
Rodriguez brought a 28 USC 2255 motion seeking to vacate his sentence. The district court ruled Rodriguez’s challenge to his career criminal status had been rejected on direct appeal and thus could not be raised in the 2255 motion and that trial counsel was not ineffective in her handling of the career criminal issue. The panel denied a certificate of appealablity and dismissed. It held the prior panel’s rejection of Rodriguez’s argument that his Texas assault conviction could not be used to declare him a career criminal was law of the case and could not be challenged in a 2255 motion. It also held that there was no ineffective assistance as trial counsel argued that state court records could not be used, her argument was foreclosed by 10th Circuit precedent and nothing in the later United Sates Supreme Court decisions Rodriguez relied upon in his 2255 motion changed anything about when state court documents can be used in career criminal analysis. It also held that there was no prejudice as even if counsel did everything Rodriguez wanted, his argument would have been rejected under 10th Circuit precedent.
Garver filed a premature notice of appeal challenging an order compelling arbitration. Several months later, the district court entered a judgment affirming the arbitration award in favor of Rosenberg. After the thirty day period to appeal had expired, Garver filed a Rule of Civil Procedure 60(b) motion arguing the premature notice of appeal divested the district court of jurisdiction and seeking a reissuance of the judgment. The district court agreed that it lacked jurisdiction to issue the judgment, ruled in now had jurisdiction because the appeal had been dismissed as premature and reissued its judgment without making any substantive changes. Garver filed a timely appeal of the second judgment. The Court dismissed. It clarified that under Appellate Rule 4 and Utah precedent, only timely filed notices of appeal transfer jurisdiction from the district court to the appellate court. It held that because the first notice of appeal was field before final judgment and was thus premature, the district court retained jurisdiction over the case. Thus, the district court erred in granting the 60(b) motion. The Court reminded litigants and district courts that they cannot circumvent Appellate Rule 4 through reissued judgments. As there was no issue before the Court to review, it dismissed the appeal.
Husband sought review of the denial of his motion for modification of alimony. The panel dismissed for lack of a substantial question holding husband failed to timely appeal the final order denying his modification motion, failed to timely file his Rule 52 motion which resulted in mandatory denial and Rule 52 does not apply to motions and thus his Rule 52 motion failed on that ground as well.
On October 7, 2014, a unanimous panel of the 9th Circuit held that the same sex marriage bans in Idaho and Nevada violated the 14th Amendment. It reasoned that the bans were unconstitutional because classifications based on sexual orientation must meet strict scrutiny in the 9th Circuit and no interest argued by Idaho or Nevada was even legitimate let alone compelling. One member of the panel added a concurrence arguing the fundamental right to marry includes the right to marry the person of one’s choice even if that person if of the same sex. Another member of the panel added a concurrence arguing the ban also constituted sex discrimination and the states failed to demonstrate an important interest and thus the bans were unconstitutional on that basis. The opinions can be found here.
How to obtain a final judgment in Utah under Rule 54(b) and other published opinions for October 2 and 3, 2014
Utah Supreme Court
Butler sued Corporation on a respondeat superior theory alleging the driver who negligently caused her injuries was acting as an agent of Corporation. Corporation moved for summary judgment. It did not attach a proposed order nor, when the motion was granted, did it serve a proposed order on Butler. The district court entered a Utah Rules of Civil Procedure Rule 54(b) order certifying the summary judgment order as final. Butler appealed. Corporation moved to dismiss arguing the appeal was untimely. The Court, 4-1, held Read More
We are happy to announce a new feature in Hunter’s Query named “Binding the Law”. New Faculty Services Librarian William Gaskill will be reading and posting summaries of the published opinions issued by the United States Supreme Court, 10th Circuit Court of Appeals, Utah Supreme Court and the Utah Court of Appeals. Look for the first set of summaries on Monday, October 6, 2014.
When WestlawNext originally launched a number of years ago, I found it interesting that Topics and Key Numbers were less visible than they had been in Westlaw Classic. It’s not that Topics and Key Numbers were gone–in fact, I would say they play an even greater role in WestlawNext because of their incorporation into the WestSearch search algorithm–but they were hidden. To find the Key Number outline, users had to know (and many didn’t) to click on WestlawNext’s “Tools” tab. Even within a case, users could zip up the Key Numbers as if they weren’t there. I imagine this led many users to discount what an important tool Topics and Key Numbers can be.
That’s why a search I ran a few weeks back caught my eye. The overview of results on the left now had a result for “Key Numbers,” with West’s famous key icon.
Clicking on those results I was given 10 key numbers that might be useful to me in my search. I could click on one of these results and be taken into a custom digest.
(I found it telling of where we’re at in legal research these days that the heading for my key number results said – “Key Numbers – Points of Law Found in Cases.” I guess it needs an explanation these days.)
Today I noticed that the Key Number name and icon have been added to the front page of WestlawNext, allowing users to easily get to the Key Number outline.
While using Key Numbers in WestlawNext is not new, their new prominence should remind researchers that Key Numbers are still a useful tool and one of the advantages of using WestlawNext.
September 17 is Constitution Day, a day we celebrate the signing of the Constitution on Sept. 17, 1787 in Philadelphia. As a researcher, I’m drawn to thinking about the history and the sources surrounding important documents like the Constitution. If you’re ever interested in examining these sources, you’re in luck. The Law Library houses a number of these early sources, like Max Farrand’s Records of the Federal Convention of 1787, in its Benson Collection in the Reserve Library. Many great constitutional history sources are also available online from ConSource.
One of my favorite historical sources surrounding the Constitution deals with its ratification. As you’ll remember, the signing of the Constitution on September 17 did not yet mean we had a constitution. The Constitution had to go through a ratification process that ultimately ended in Ratification and, later, to the addition of the Bill of Rights. The debates from these state ratifying conventions are a great source of history and can be found in a wonderful source called the Documentary History of the Ratification of the Constitution. The Library has both print and electronic copies of this great source.