Barry G. Stratford
This Article uses State v. Worthen, 222 P.3d 1144 (Utah 2009), to advocate for an absolute victim-counselor confidentiality privilege for all crime victims that seek counseling, not just the traditional protections offered to victims of child abuse and sexual assault. The underlying public policy interests of privileges in general, the policy interests regarding victims of crime in particular, and crime victims’ statutory and constitutional rights, all support establishing an absolute victim counselor testimonial privilege.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 124
Samuel C. Johnston
Three Utah cases involving adoptions that were contested by out-of-state, unwed, putative fathers highlight the prejudice in Utah’s adoption law against unwed biological fathers of adoptees. This Note explores the mechanisms employed by Utah’s statute that make it difficult for unwed fathers to preserve their rights, how the statute invites fraud by adoption agencies and adoptees’ mothers seeking adoptions against fathers’ wishes, and how recent decisions by the Utah Supreme Court have strained the statute’s provisions and made preservation of rights even more difficult for putative fathers.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 104
Mark A. Glick, James R. Kearl, & Cory D. Sinclair
This Article demonstrates that Utah law on prejudgment interest is inconsistent with established principles of economic theory. In reaching this conclusion, the authors present several, simple examples that show that the underlying purpose of compensatory damages is not always achieved under Utah law because of the inconsistent application and amount of prejudgment interest sometimes awarded.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 63
Barry G. Stratford
The recognition and application of electronic signatures has increased in the past few decades through various measures, such as the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN”) and Utah’s Uniform Electronic Transactions Act (the “UETA”), which both passed in 2000. Since then, the most dramatic step forward in making electronic signatures as legally effective as hand signatures is the 2010 Utah Supreme Court decision in Anderson v. Bell. The court held that electronic signatures were a legally effective and enforceable alternative to handwritten signatures when qualifying a candidate for the ballot under Utah’s Election Code. The incorporation of electronic signatures in election law would likely have a positive impact on access and involvement in democratic participation, especially with citizen-led initiatives and referenda.
Part II of this Note examines the laws surrounding electronic signatures. Part III argues that the expansion of electronic signatures in election law is a logical extension of those laws. Specifically, this Note argues that the Utah Supreme Court’s application of electronic signatures in qualifying a candidate for the ballot was proper. Part IV further advocates that lawmakers should incorporate the use of electronic signatures into the election code wherever feasible, arguing that it will increase citizen participation and improve citizen access and usage of initiative and referendum petitions.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 46
Russell K. Smith
Since Wyoming passed the first Limited Liability Company Act in 1977, the limited liability company (“LLC”) has grown to be a favored form of business entity throughout the nation. By the end of 1996, all of the states, Puerto Rico, and the U.S. Virgin Islands adopted LLC acts. Utah enacted its first LLC statute in 1991 and, after several revisions, the entire statute was replaced in 2001 with the Utah Revised Limited Liability Company Act (the “Current Act”). On March 28, 2011, Governor Gary R. Herbert signed into law S.B. 131, the Unincorporated Business Entity Uniform Acts, which included a modified version of the Revised Uniform Limited Liability Company Act (“RULLCA”). The modified version of RULLCA, included in S.B. 131, has been further modified in S.B. 21 to make certain corrective and harmonized changes (the “Proposed Act”).
It is the basic premise of this Article that replacing the Current Act with the Proposed Act will provide a number of valuable improvements for businesses formed as LLCs in Utah. Part II of this Article provides a brief history of the evolution of LLC acts. Part III reviews the current state of law relative to Utah LLCs, with a particular focus on potentially problematic provisions found in the Current Act. Part IV then provides a general overview of certain provisions of the Proposed Act, paying particular attention to problematic issues associated with the Current Act and discussing how they can be alleviated or improved by adoption of the Proposed Act.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 12
This Note briefly explores the burden that Utah’s Post-Conviction Remedies Act (PCRA) places upon indigent non-capital defendants who seek to challenge their conviction post-appeal. Because such defendants have no constitutional or statutory right to counsel in a post-conviction proceeding, they must frequently prepare such a challenge without representation. The limited resources available to these defendants, coupled with the short limitations period in which to bring a petition, severely curtail a defendant’s ability to successfully challenge a wrongful conviction.
This is particularly problematic when a PCRA petition is premised upon a constitutional claim that counsel was ineffective at a prior stage of the proceeding. Because the defendant is charged with his or her counsel’s knowledge, the defendant who does not immediately recognize counsel’s ineffectiveness cannot revive a claim through later discovery of counsel’s dereliction. This statutory scheme effectively precludes many defendants from vindicating their constitutional rights, and is therefore not a reasonable substitute for the common law habeas corpus procedure it has displaced. The PCRA, as currently interpreted, likely runs afoul of the open courts provision of the Utah Constitution.
[PDF Version] Citation: 2013 Utah L. Rev. OnLaw 1
The Supreme Court decision in Olmstead v. L.C. over ten years ago sparked a national movement to revolutionize mental health care, decreasing inpatient hospitalization and creating better community-based support systems. This movement has largely lost traction in Utah, where lawmakers are expending precious funds to rebuild one such institution for children.
This Note explores the possibility that litigation against the state of Utah may prompt lawmakers to rethink its ongoing commitment to institutional care and initiate systemic change that emphasizes community-based support for children. Part I explores why such a movement is necessary. Analysis of the practical implications of long-term institutional versus community-based care reveals that institutional care produces poorer outcomes for patients and families while incurring dramatically higher costs for the state as compared to community care. Part II examines the legal precedent set by the decision in Olmstead and discusses the basic arguments to be made against the State under this precedent. Part III analyzes a second theory of litigation that may prompt reform. A plaintiff might proceed with a due process challenge against the state for its complacency in the practice of custody relinquishment, wherein parents voluntarily place their children in state custody as a means of accessing Medicaid coverage to cover mental health care costs.
These litigation strategies would serve to put pressure on the state to reform its archaic children’s mental health care practices, and it is the author’s contention that such reform will serve the best interests of Utah’s children and their families.
[PDF Version] Citation: 2012 Utah L. Rev. OnLaw 73
Samuel P. Newton, Teresa L. Welch, & Neal G. Hamilton
Utah’s justice courts face sharp criticism in today’s society, and are subject to significant failings. This Article examines the problems inherent in Utah’s justice court system and proposes solutions to these problems. Part I summarizes the development of justice courts, beginning with their origins in England, and exploring the reasons justice courts were organized in Utah. Part II discusses the numerous issues associated with modern justice courts that appear to undermine their legitimacy, such as constitutional, structural, and procedural problems, as well as concerns that justice courts are focused more on generating revenue than they are on enforcing the law. Part III proposes a number of options that might be taken to solve these problems, ranging from completely dismantling Utah’s justice courts, to instituting reforms such as requiring legally-trained and licensed judges, sentencing guidelines, converting justice courts into “courts of record,” simplifying the appellate procedure, and modifying justice court jurisdiction over certain crimes, such as DUIs and domestic violence offenses.
[PDF Version] Citation: 2012 Utah L. Rev. OnLaw 27
Paul G. Cassell & Thomas E. Goodwin
*This article is dual-published with the Utah Law Review [2011 Utah L. Rev. 1377]
In general, when a defendant is accused of serious criminal charges, a preliminary hearing is constitutionally required. At this hearing, witnesses will testify and be cross-examined to determine if the defendant should be bound over to face trial. For many decades, preliminary hearings in Utah were only required for felony offenses, and not for misdemeanors. But, the Utah Supreme Court recently decided in State v. Hernandez that a preliminary hearing must be given to defendants accused of misdemeanors punishable by up to a year in jail.
This Article does not debate the historical accuracy of the court’s decision. Rather, it asks whether the decision is sound public policy. This Article concludes that requiring preliminary hearings for Class A misdemeanors is undesirable for two simple reasons. First, the court’s decision will result in hundreds of additional preliminary hearings a year, thus imposing substantial costs on taxpayers and burdens on an already overwhelmed criminal justice system. Second, the decision will create substantial hardships for crime victims, who will now be twice subjected to cross-examination by defense attorneys—once at the preliminary hearing and again later at trial. And these costs will generate no significant benefit in return.
This Article proceeds as follows: Part II provides an overview of preliminary hearings and compares Utah’s procedure to other states. Part III reviews the Utah Supreme Court’s decision in State v. Hernandez. Part IV discusses the decision’s consequences for taxpayers, the criminal justice system, and crime victims. Finally, Part V advocates a state constitutional amendment to override the Hernandez decision and restoreUtah’s preliminary hearing practice to its historical form.
[PDF Version] Citation: 2012 Utah L. Rev. OnLaw 1