June 28, 2013, Utah Supreme Court Case Summary

June 28, 2013

Utah Supreme Court

Murray v. Labor Commission, 2013 UT 38, No. 20120232 (June 28, 2013)

ISSUE: Utah Administrative Procedure Act’s Standards of Review.  Legal Cause of Workplace Injuries.

Justice Durrant,

We granted certiorari in this case to determine two questions. First, we must decide whether the court of appeals erred in reviewing a Labor Commission decision, which applied law to fact, for an “abuse of discretion” rather than as a mixed question of law and fact. Second, we must decide whether the court of appeals erred in ruling that an  employee who injured his back when a small wave unexpectedly rocked his boat failed to establish that it was his act of steadying himself, rather than a preexisting back condition, that was the legal cause of his injury. We conclude that the court of appeals should have reviewed the Labor Commission’s decision in this case as a traditional mixed question of law and fact. But we ultimately uphold the court of appeals’ conclusion that the employee failed to establish legal cause.

At ¶ 1.

The Court outlines the backgrounds and procedural history of the case.

At ¶¶ 2-7.

Standard of Review

The court of appeals relied on UAPA to determine which standard of review applies in this case, concluding that, under our UAPA precedent, “questions of law and mixed questions of law and fact are generally reviewed for correctness.” It also recognized an exception to this correctness standard that applies when “the [L]egislature has either explicitly or implicitly granted discretion to the agency to interpret or apply the law.” Relying on this approach, the court determined that when a statute delegates discretion to an agency, it must review the agency’s action for an abuse of discretion.

At ¶ 9.

. . . under the interpretation of UAPA we announce below, we disagree that UAPA necessarily forecloses our traditional approach for determining the appropriate standard of review. 

At ¶ 11.

The Court reviews previous caselaw on the applicable standard or review for agency decisions.

At ¶¶ 12-14.

We decided both Drake and Salt Lake City Corp. well after UAPA became applicable in January 1988. Yet, in both cases, we failed to mention UAPA or explicitly overrule our interpretation of UAPA in Morton. In light of this conflicting precedent on UAPA standards of review, we take the opportunity to clarify our interpretation of UAPA and the role it plays in our selection of a standard of review for agency decisions.

At ¶ 15.

Section 63G-4-403 governs judicial review of “final agency action resulting from formal adjudicative proceedings.”40 Subsection (4) allows an appellate court to “grant relief only if . . . it determines that a person seeking judicial review has been substantially prejudiced” by certain agency actions. Section 63G-4-403(4)(a) through (h) identifies those agency actions: [quotes Section 403(4)’s list of agency actions subject to review.]

At ¶ 17.

While the above provisions clearly set forth and limit the types of agency actions for which appellate courts may grant relief, they do not expressly mandate standards of review courts must employ when reviewing those agency actions. The Legislature does not exhibit a clear intent—in section 63G-4-403 or UAPA generally41—to completely displace our traditional approach for selecting standards of review. Rather, by declining to expressly mandate standards of review for each type of agency action for which we may grant relief, the Legislature suggests the opposite intent to leave much of the normal appellate process in place. Thus, the plain language of section 63G-4-403 clearly sets forth the type of agency actions for which we may grant relief, but it does not expressly mandate the standards of review we must employ when reviewing those actions.

At ¶ 18.

Certain provisions of section 63G-4-403(4) do, however, imply a standard of review by the way in which the Legislature characterized the agency action. Section 63G-4-403(4)(g), for example, falls into this category. That provision allows us to grant relief for “agency action [that] is based upon a determination of fact . . . that is not supported by substantial evidence.” While this provision does not explicitly require a certain standard of review, it characterizes the agency action in such a way that implies a “substantial evidence” standard. This is because we can grant relief under this provision only after reviewing the agency’s determination of fact for a lack of substantial evidence. Sections 63G-4-403(h)(i), (h)(iii), and (h)(iv) also fall into this category.

At ¶ 19.

Importantly, the Legislature’s characterization of some agency actions in terms of a standard of review is further evidence that it did not intend to completely displace our traditional standard of review framework. This is because the Legislature, while implying a standard of review for some agency actions, did not attempt to define what that standard requires. Thus, even where section 63G-4-403(4)(g) implies a “substantial evidence” standard on appeal, for example, we must look outside UAPA to determine what that standard means.

At ¶ 20.

But most agency actions listed in section 63G-4-403(4) do not imply a standard of review. Absent this implication, we conclude that the Legislature intended our traditional standards of review to apply. This category of agency action includes section 63G-4-403(4)(d), which allows us to grant relief when an “agency has erroneously interpreted or applied the law.” We stated in Morton that the term “erroneous” connotes a correctness standard for both interpretations and applications of law. But we now conclude that subsection (4)(d) does not imply a standard of review. While that provision empowers courts to grant relief

when an agency commits an “error” in interpreting or applying the law, the term “erroneous” in this context does not imply a standard of review. Rather, the term simply means “mistaken,” indicating that we may grant relief when an agency misinterpreted or misapplied the law. Sections 63G-4-403(4)(a)–(f) and (h)(ii) fall into this category as well. For this category of agency actions, we are free to apply our traditional approach for

selecting an appropriate standard of review.

At  ¶ 21.

Based on the above plain-language analysis, we conclude that section 63G-4-403 does not—contrary to our decision in Morton—incorporate standards of review for each agency action Accordingly, we overrule Morton as far as it is inconsistent with this conclusion. Going forward, the appropriate standard of review of final agency actions will depend on the type of action in question. In some instances, as discussed above, section 63G-4-403 will have characterized the action in such a way that the applicable standard of review will be obvious. But even there, we must turn to our case law to determine how that standard applies. For other agency actions, the applicable standard of review will depend on the nature of the agency action and whether it can be characterized as a question of law, a question of fact, or a mixed question of law and fact. Below, we apply this analysis to Mr. Murray’s case to determine the appropriate standard of review on appeal. listed in subsection (4).

At ¶ 22.

The Court reviews this case and determines that “Mr. Murray’s claim presents a traditional mixed question of law and fact and that, accordingly, the commission’s authority to apply the law in this case is not a discretionary action warranting an ‘abuse of discretion” standard of review under UAPA.”

At ¶¶ 23-34.

. . . the court of appeals determined that section 34A-1- 301 of the Labor Commission Act “constitutes an express grant of authority” for the Commission “to apply the law in workers’ compensation cases.” That provision provides that “[t]he commission has the duty and the full power, jurisdiction, and authority to determine the facts and apply the law in this chapter or any other title or chapter it administers.” Thus, the court of appeals concluded that under section 63G-4-403(4)(h)(i) of UAPA, it must review the Commission’s decision to deny Mr. Murray benefits for an abuse of discretion. We disagree.

At ¶ 25.

The court of appeals’ decision was understandable in light of our past decisions concluding that we review an agency’s decision for an abuse of discretion when the Legislature has granted the agency discretion to interpret or apply the law. We last considered a delegation of discretion in LPI Services v. McGee. There we recognized that “[t]he [L]egislature may grant an agency discretion, either explicitly or implicitly, to interpret specific statutory terms.” We have found implicit delegations of discretion where “the operative terms of a statute are broad and generalized” or “there is more than one permissible reading of the statute” and no basis in our rules of construction to prefer one interpretation to another.

At ¶ 26.

We have not clearly articulated what constitutes an explicit delegation of discretion, although we have offered examples. In LPI Services, we suggested that the Legislature explicitly delegated discretion by mandating that “[t]he [Labor] [C]ommission shall establish rules regarding part-time work and offset” to account for a permanently disabled employee’s income from medically appropriate part-time work. The court of appeals declined, however, to limit explicit delegations of discretion to only those instances where the Legislature directs an agency to define a statutory term by regulation. It instead adopted a broader approach, concluding that “an explicit grant of discretion can be found when a statute specifically authorizes an agency to interpret or apply statutory language.” The court of appeals has explained that “[w]hen the [L]egislature focuses on a specific statutory term and delegates to the agency the duty to either interpret or apply the term, . . . the agency necessarily is required to interpret the statutory language.”

At ¶ 27.

The above approach to identifying delegations of discretion has proved difficult to apply. And we now conclude that it is inconsistent with the interpretation of section 63G-4-403(4) announced above. Specifically, under the plain language of section 63G-4-403(4), it is inaccurate to say that “authority” means “discretion,” as the court of appeals has done. There is no question that section 34A-1-301 of the Labor Commission Act “constitutes an express grant of authority” for the Commission “to apply the law in workers’ compensation cases.” But this grant of authority does not turn an agency’s application or interpretation of the law into the type of action that would warrant an “abuse of discretion” standard of review under section 63G-4-403(4)(h)(i).

At ¶ 28.

We have already recognized in past decisions that “an administrative grant to administer a statute is not to be confused with a grant of discretion to interpret the statute.” This is because “all agencies are necessarily granted authority by statute to administer portions of the code.” We now go a step further and conclude that, for an “abuse of discretion” standard to apply on appeal, the agency action under review must involve “discretion.” Only then can we properly review the action for an “abuse of discretion,” as required by the plain language of section 63G-4-403(4)(h)(i).

At ¶ 29.

The Court discusses an example of when an agency has discretion to interpret a law or apply facts to the law in a way that involves discretion.

At ¶¶ 30-32.

The Court determines that this case is not one in which the agency action involved discretion.

At ¶¶ 33-34.

The Court discusses the difference between a “fact-like” mixed question of law and fact which warrants deference to the initial decision making body, and a “law-like” mixed question of law and fact which should be reviewed for correctness.

At ¶¶ 36-39.

The Court determines that this case presents a “law-like” mixed question of law and fact because the facts are not in dispute.

At ¶ 40.

Although the court of appeals applied the wrong standard of review in this case, its error was harmless. “[H]armless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” We conclude that even if the court of appeals had applied a nondeferential standard of review, its decision regarding the Commission’s order would be the same.

At ¶ 41.

Legal Cause of an Injury

The Utah Workers’ Compensation Act provides that an employee injured “by accident arising out of and in the course of the employee’s employment . . . shall be paid . . . compensation for loss sustained on account of the injury.” We have recognized that “[t]his statute creates two prerequisites for a finding of a compensable injury.” “First, the injury must be ‘by accident.’ Second, the language ‘arising out of [and] in the course of employment’ requires that there be a causal connection between the injury and the employment.” Only the second prerequisite—causal connection—is at issue here.

At ¶ 44.

We have adopted a two-part test for establishing a causal connection. Under that test, a claimant must establish that the conditions or activities of his job were both the medical cause and the legal cause of his injury. In this case, the only dispute concerns whether Mr. Murray’s employment activities constituted the legal cause of his injury. If an employee does not have a preexisting condition that causally contributed to his injury, then the medical and legal causation requirements are one and the same, and the employee need only prove medical causation.

At ¶ 45.

But medical and legal causation diverge for an employee with a causally contributing preexisting condition, and here it is undisputed that Mr. Murray had such a condition. In Allen, we held that to prove legal causation, an employee with a preexisting condition must show that “the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition.” We recognized that this heightened showing of legal cause is “necessary to distinguish those injuries which . . . coincidentally occur at work because a preexisting condition results in symptoms which appear during work hours without any enhancement from the workplace.”

At ¶ 46.

Our decision in Allen also recognized that the required workplace enhancement is “usually supplied by an exertion greater than that undertaken in normal, everyday life.” Allen’s focus on “exertions” is understandable given that the facts of that case involved clear exertions—moving and lifting. But our decision in Allen ultimately considered the totality of the circumstances, including the employee’s exertions and the workplace conditions.

At ¶ 47.

“Unusualness” is an objective standard. We compare the activity that precipitated the employee’s injury with “the usual wear and tear and exertions of nonemployment life.” The focus is on “what typical nonemployment activities are generally expected of people in today’s society, not what this particular claimant is accustomed to doing.” This question involves two steps: first, we must characterize the employment-related activity that precipitated the employees’ injury, taking into account the totality of the circumstances; and second, we must determine whether this activity is objectively unusual or extraordinary.

At ¶ 48. 

Having characterized the totality of Mr. Murray’s precipitating activity, we continue to the next step and determine whether Mr. Murray’s exertion and surrounding circumstances were objectively “unusual or extraordinary.”  [The Court gives examples of “unusual” or “extraordinary” activities required by employment as illustrated in caselaw.]

At ¶ 51.

In light of the above analysis, the court of appeals correctly upheld the Commission’s order in this case. The totality of Mr. Murray’s precipitating activity—both exertional and nonexertional—was not unusual. As the court of appeals recognized, the totality of Mr. Murray’s accident is comparable to nonemployment activities generally expected in today’s society. To borrow the court of appeals’ example, people are generally expected to travel in everyday life. They are expected to carry luggage or bags often heavier and less secure than Mr. Murray’s service belt and life jacket. And they are generally expected to encounter bumpy rides in planes or buses and maintain and regain their balance in the process. The unexpected force Mr. Murray experienced, his awkward position, and the service belt and jacket he was wearing when the small wave rocked his boat were not unusual given the unexpected rigors we expect people to endure while traveling with clumsy luggage. We agree with the court of appeals that the “whole” of Mr. Murray’s accident “entailed nothing unusual or extraordinary that could be presumed to have contributed something substantial to increase the risk of injury.” Accordingly, even applying a nondeferential standard of review, we affirm the court of appeals’ decision to uphold the Commission’s order denying benefits in this case.

At ¶ 53.

June 27, 2013, Utah Court of Appeals Case Summaries

June 27, 2013

Utah Court of Appeals

Williams v. Department of Corrections, 2013 UT App 159, No. 20120025-CA (June 27, 2013)

ISSUE: Rule 65B Motions; Interpreting Pleadings

Judge Voros,

Reginald Williams appeals the dismissal of his rule 65B petition and associated claims against the Utah Department of Corrections (the Department). We reverse and remand.

At ¶ 1.

Williams initiated this action by filing a document entitled “Petition for Extraordinary Relief, Independent Action, Petition for Review of Records Denial.” The Department moved to dismiss. Williams opposed the motion to dismiss and moved to disqualify the entire Utah Attorney General’s Office (the Attorney General). As grounds for his disqualification motion, he alleged that Department officials had confiscated all of his legal materials at the direction of an Assistant Attorney General (the Assistant AG), that the Assistant AG had read his legal materials related to this lawsuit, and that this exposure of his work product gave the Department an unfair advantage in defending against his claims. Consequently, he argued, all attorneys employed by the Attorney General were “required to be screened.” The Attorney General did not respond to this motion and the trial court did not rule on it. Rather, the trial court dismissed the petition.

At ¶ 3.

The Department does not respond to the merits of this claim. Rather, it asserts that “Williams did not raise the issue of shared confidences in any recognized pleading below.” It is true that Williams did not use the exact phrase “shared confidences” in his trial court motion, nor did he cite to McClellan, from which that phrase derives. But a “litigant has no obligation to ‘preserve’ his citation to legal authority.” Torian v. Craig, 2012 UT 63, ¶ 20, 289 P.3d 479 (citation omitted). “If the foundation of a claim or argument is presented in a manner that allows the district court to rule on it, a party challenging the lower court’s resolution of that matter is free to marshal any legal authority that may be relevant to its consideration on appeal.” Id. (footnote citations omitted). That is all that Williams has sought to do here.

At ¶ 5.

The parties do not claim, and the record does not reflect, that the trial court ruled on Williams’s disqualification motion. To allow a case to progress while potentially conflicted counsel continues to represent a party “threatens to taint all further proceedings in the case.” Cade v. Zions First Nat’l Bank, 956 P.2d 1073, 1081 (Utah Ct. App. 1998) (citations and internal quotation marks omitted) (identifying three factors used in deciding a motion to disqualify for breach of confidentiality). Consequently, undue delay in ruling on a disqualification motion, like “undue delay in filing a disqualification motion[,] is costly, wasteful, and prevents the speedy resolution of matters.” See Camco Constr., Inc. v. Utah Baseball Acad., Inc., 2010 UT 63, ¶ 17, 243 P.3d 1269 (footnote citation and internal quotation marks omitted) (referring to judicial disqualification). Accordingly, a court should dispose of a motion to disqualify counsel before proceeding to the merits of the case.

That did not happen here. The trial court granted the Attorney General’s motion to dismiss without having determined whether the Attorney General should be disqualified from representing the Department against Williams. We therefore reverse and remand this case for the trial court to rule on Williams’s disqualification motion.

At ¶¶ 6-7.

A proceeding under rule 65B is an extraordinary proceeding with idiosyncratic procedural rules. See Utah R. Civ. P. 65B(b) (governing the commencement of proceedings, the requisite elements of a petition, dismissal of frivolous petitions, responsive pleadings, and service); id. R. 65B(a) (relief may be granted only when “no other plain, speedy and adequate remedy is available.”) A hybrid complaint would thus require the trial court to simultaneously apply two different procedural regimes. Because this approach is unworkable, the trial court had discretion to dismiss from a petition for extraordinary relief any claims seeking ordinary relief.

At ¶ 10.

State v. Wimberly, 2013 UT App 160, No. 20110946-CA (June 27, 2013)

ISSUE: Entering a conviction after a plea held in abeyance;

Judge Voros,

Elbert Clint Wimberly entered a plea in abeyance to one count of aggravated assault. See Utah Code Ann. § 76-5-103 (LexisNexis 2012).1 After determining that Wimberly had violated the terms of the plea in abeyance agreement, the trial court terminated the agreement, entered the guilty plea previously held in abeyance, and sentenced him to prison. Wimberly appeals both the entry of the guilty plea and the sentence. We affirm.

At ¶ 1.

The Court outlines the background of this case.

At ¶¶ 2-4.

Wimberly contends that the trial court “erred when it revoked Wimberly’s probation because there is insufficient evidence to support a finding that Wimberly’s violations were willful.” This framing of the issue assumes that Wimberly was placed on probation, that his probation was revoked, and consequently that the State was required to show that his violations were willful. We do not share these assumptions.

At ¶ 7.

While a plea in abeyance agreement is not probation, “[t]he court may require the Department of Corrections to assist in the administration of the plea in abeyance agreement as if the defendant were on probation to the court under Section 77-18-1.” Id. § 77-2a-3(4) (emphasis added).

At ¶ 9.

If the court learns from AP&P or otherwise that the defendant may have violated the terms of the plea in abeyance agreement, the court “may issue an order requiring the defendant to appear before the court at a designated time and place to show cause why the court should not find the terms of the agreement to have been violated and why the agreement should not be terminated.” Id. § 77-2a-4(1) (LexisNexis 2012). If after an evidentiary hearing “the court finds that the defendant has failed to substantially comply with any term or condition of the plea in abeyance agreement, it may terminate the agreement and enter judgment of conviction and impose sentence against the defendant for the offense to which the original plea was entered.” Id. (emphasis added).

At ¶ 10.

A plea in abeyance is thus analytically distinct from probation. . . .

At ¶ 11.

Although at various times the trial court, AP&P, and counsel all referred to the plea in abeyance agreement as “probation,” Wimberly was in fact never placed on probation. Rather, the trial court directed AP&P “to assist in the administration of the plea in abeyance agreement as if [Wimberly] were on probation.” See Utah Code Ann. § 77-2a-3(4). We detect no fundamental confusion on the trial court’s part. It issued an order to show cause and scheduled an evidentiary hearing. At the conclusion of the hearing it found that Wimberly was “in violation of the terms of his plea [in] abeyance” and accordingly “enter[ed] the plea,” with the result that “he now has a third degree felony on his record.” The trial court then scheduled the matter for sentencing. All this was in keeping with Utah Code section 77-2a-4(1).

At ¶ 12.

. . . No Utah case has ever held or implied that a finding of willfulness is required before a trial court may terminate a plea in abeyance agreement, enter a conviction, and impose a sentence, including incarceration. The standard specified by the controlling statute, and uniformly applied by our case law, is substantial compliance.

At ¶ 13.

Wimberly did not contend below, nor does he contend on appeal, that the evidence was insufficient to demonstrate that he “failed to substantially comply with any term or condition of the plea in abeyance agreement.” Utah Code Ann. § 77-2a-4(1) (LexisNexis 2012). Because he has not shown, or indeed undertaken to show, that the trial court violated the applicable standard in ruling that he violated the plea in abeyance agreement, Wimberly’s challenge to the trial court’s entry of his guilty plea fails.

At ¶ 17.

The Court rejects Defendant’s contention that the trial court erred in sentencing him to jail time rather than probation, because a Defendant does not have a right to probation and the judge’s determination was within the “wide latitude and discretion” granted in sentenceing.

At ¶¶ 18-22.

Paget v. UDOT, 2013 UT App 161, No. 20120481-CA (June 27, 2013)

ISSUE: Admissibility of Expert Testimony; Insufficiency of evidence to establish that UDOT’s construction was reasonably safe as a matter of law.

Judge Orme,

Timothy and Annette Paget initiated this negligence action against the Utah Department of Transportation (UDOT) after a horrific car crash in which Annette was severely injured and their daughter was killed. The district court granted summary judgment in favor of UDOT, and the Pagets now appeal from that decision. While we affirm the court’s ruling on the inadmissibility of expert testimony, we reverse the summary judgment.

At ¶ 1.

The Court outlines the background og this case.  Specifically, the testimony of UDOT’s expert witness that UDOT’s failure to build a barrier between eastbound and westbound traffic at the accident site was with the industries standard of care, and Plaintiffs’ expert testimony that the failure violated the standard care.

At ¶¶ 2-5.

Admissibility of Expert Testimony

The Court discusses what is required for an expert to satisfy the necessary “indicia of reliability” to be admissible, as outlines in the Utah Supreme Court’s seminal case on the issue, Gunn Hill Dairy Properties, LLC v. Los Angeles Department of Water & Power, 2012 UT App 20, 269 P.3d 980.

At ¶¶ 8-10.

[A]n opinion based on principles or methodologies that are not generally accepted by the relevant expert community or that offers an unconventional perspective does not meet the necessary threshold simply because that opinion was rendered by a qualified expert. See Gunn Hill, 2012 UT App 20, ¶ 30 (explaining that rule 702 requires a bifurcated analysis of admissibility and that a reliability determination under rule 702(b) is separate and distinct from an assessment of the expert’s qualifications under rule 702(a)). On the contrary, when an expert opinion is based on principles or methodologies that are not generally accepted in the relevant expert community, a proponent of that opinion can meet the requisite “threshold showing” only by demonstrating other indicia of reliability. See Utah R. Evid. 702 advisory committee note (noting that a failure to show general acceptance in the relevant expert community does not make the opinion inadmissible but does require that the threshold be satisfied by “other means”). Accordingly, if an expert opinion is not based on generally accepted principles or methodologies and is also devoid of other indicia of reliability, a trial court is well within its gatekeeping discretion to exclude the proposed testimony. See id.

We conclude that the district court did not abuse its gatekeeping function by excluding Ruzak’s proposed testimony. The AASHTO standards are generally accepted as the benchmark for designing and constructing highways in Utah. By his own admission, Ruzak is not aware of a generally accepted standard that substantiates his recommendation to go above and beyond or deviate from the AASHTO guidelines, and the Pagets have not pointed to one. Therefore, Ruzak’s methodology is not based on a generally accepted standard, and it was incumbent upon the Pagets to provide other indicia demonstrating the reliability of his methodology.

At ¶¶ 11-12.

The Court review’s Plaintiffs’ expert’s testimony for other indicia of reliability and determines that

Ruzak’s opinion is based on evaluations that contain incorrect measurements and inadmissible data. The Pagets have not pointed to any generally accepted standard that substantiates his methods, and they have failed to provide any other indicia that his proposed testimony is reliable. We conclude that the district court properly excluded his testimony.

At ¶¶ 13-15.

Summary Judgment

UDOT contends that once Ruzak’s testimony is excluded, the Pagets’ claim fails as a matter of law and UDOT is entitled to summary judgment. We disagree. Regardless of whether Ruzak’s testimony is excluded, summary judgment is not appropriate unless UDOT, as the moving party, has demonstrated that it is entitled to judgment as a matter of law. See [Orvis v. Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600 (“A summary judgment movant must show both that there is no material issue of fact and that the movant is entitled to judgment as a matter of law.”]  Thus, we turn to the relevant standard of care and the report from Alcorn, UDOT’s expert.

At ¶ 16.

AASHTO’s tripartite median barrier recommendation scheme provides no guidance on whether and under what circumstances a median barrier should reasonably be installed, especially when a location falls within the “Barrier Optional” category. Other than the direction to consider the “history of crossmedian crashes,” the Roadside Design Guide does not provide any criteria whatsoever, and the categories on either side of this nebulous “Barrier Optional” category are of little help. On the one hand, if a barrier is “Not Normally Considered,” the logical implication is that typically a barrier will not be necessary, but in atypical or abnormal circumstances it will be. Conversely, the “Evaluate Need For Barrier” category suggests, at the very least, that a barrier will not always be necessary—hence the need to evaluate its necessity. Unfortunately, the Roadside Design Guide does not state any factors or unusual circumstances that should be considered in evaluating necessity. Given the confusing nature of what should be the more predictable categories on either side of it, the “Barrier Optional” category appears to countenance little more than a free-for-all, affording highway designers carte blanche discretion to build or not to build barriers based, apparently, on little more than whim.

UDOT’s decision not to construct a median barrier appears to be based solely upon section 6.2’s unsatisfying matrix. And from what appears in his report, Alcorn’s conclusion that a median barrier was not warranted at the crash site also stems purely from the crash site’s “Barrier Optional” categorization. After entering the average daily traffic volume and median width into the matrix, and without any additional explanation or consideration of the crash site’s “history of cross‐median crashes,” Alcorn arrived at the conclusion that a median barrier was “not warranted” when the road was designed or constructed and was “optional” at the time of the accident. His report does not list any factors, other than the matrix, that may have guided UDOT’s actual decision not to build a barrier initially or later. More importantly, the report does not provide any meaningful analysis about whether the decision not to construct a barrier was reasonable. Instead, it merely recited that a barrier was “optional” at the time of the crash and then jumped to the unexplained conclusion that a barrier was “not warranted.” Indeed, the report’s reasoning appears to be entirely circular: The AASHTO matrix defines the applicable standard of care, and because construction of a median at the crash site was optional, the standard was satisfied because UDOT opted not to construct a median. Such an approach, much like the matrix itself, begs the question of whether opting not to install a median barrier at the crash site was a reasonable choice even when taking into account the premise that the decision was optional rather than mandatory.

Without more, we are unconvinced that UDOT’s decision not to construct a median barrier was reasonable as a matter of law. While we understand that, under AASHTO, the decision whether to erect a barrier was optional, both Alcorn and UDOT have wholly failed to explain why UDOT’s decision was reasonable. UDOT seems to suggest that because a barrier was optional it would have been reasonable either to construct a barrier or not to construct a barrier. But without any sort of explanation as to how UDOT actually came to its decision, there is no way of knowing whether UDOT’s decision was grounded in reasonable and prudent judgement or whether it all boiled down to something as arbitrary as a design engineer’s mental flip of a coin.

At ¶¶ 19-21.

AASHTO’s rudderless median barrier requirements cannot, without more, serve as the standard of care by which the reasonable and prudent construction of highway median barriers is measured. Because UDOT has failed to demonstrate anything other than that a median barrier was optional under AASHTO, it has failed in its burden to prove that its actions in selecting the option it did were reasonable as a matter of law and that it is entitled to judgment as a matter of law. We therefore conclude that the district court erred in granting summary judgment in favor of UDOT

At ¶ 22.

In re P.D., 2013 UT App 162, No. 20120227-CA (June 27, 2013)

ISSUE: Mandatory Evidentiary Hearing in Custody Modification Proceedings and Harmless Error

Judge Orme,

Appellant E.D. (Father) appeals an order from the juvenile court that awarded full custody and guardianship of their son to Mother. Father argues that he was improperly denied an evidentiary hearing as required by rule 47 of the Utah Rules of Juvenile Procedure. We agree with Father, but we decline to reverse because Father has failed to meet his burden to show that the error was harmful.

At ¶ 1.

The Court outlines the background of this case.  Specifically, Father’s admissions that he had sexually abused his son, P.D., the juvenile court’s determination to award Mother full custody, and the juvenile court’s denial of Father’s request for an evidentiary hearing.

At ¶¶ 2-4

Rule 47 of the Utah Rules of Juvenile Procedure provides: The court shall not modify a prior order in a review hearing that would further restrict the rights of the parent, guardian, custodian or minor if the modification is objected to by any party prior to or in the review hearing. The court shall schedule the case for an evidentiary hearing and require that a motion for modification be filed with notice to all parties in accordance with Section 78A-6-1103.

At ¶ 6.

Because the plain language of the rule permits the objection to be made “in” the review hearing, it rather clearly allows the objection to be made at any time before the hearing ends. Thus, Father’s objection was timely.

At ¶ 7.

While the practical effect of the February 2012 order was merely to continue the custody arrangement ordered in November 2011, Father’s rights were still significantly restricted when compared with the permanent custody order included in the couple’s divorce decree. Indeed, the divorce decree appears to be the order that the juvenile court was referring to when it stated, “The prior order that [Father] and [Mother] have joint legal custody of [P.D.] is vacated. Full custody and guardianship of [P.D.] is awarded to [Mother].” Moreover, while the February 2012 order did not tinker much with the quantum of custody and visitation that had been decreed in the November 2011 order, the new order moved the disposition from temporary to permanent—a momentous change in Father’s view. Father’s rights had been in a state of flux following the allegations of abuse and petition for a protective order. We determine that the modification made at the February 2012 hearing was a change that, if for no other reason than it moved the custody arrangement from being temporary to permanent, “further restrict[ed]” Father’s parental rights. See id. Therefore, we conclude that rule 47 does apply.

At ¶ 10.  

Father has failed to meet his burden to show that had an evidentiary hearing been granted, “‘the likelihood of a different outcome [would have been] sufficiently high as to undermine our confidence in the [judgment].’” Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553 (quoting Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah 1991)). Mother was given full custody, on a temporary basis, after the allegations of sexual and other abuse were made against Father. These allegations were later deemed by the court to be true after Father entered a plea under rule 34(e). As the juvenile court pointed out, “There’s a court finding in place he sexually abused his son. And so I take that and determine . . . what I need to do, given this information.” While the juvenile court expressed concern that Father had not fully understood the consequences of a rule 34(e) plea, the court also made it clear that the consequences were fully explained to and acknowledged by Father before the plea was entered. The findings of sexual abuse against Father have not been vacated or modified, and Father has failed to demonstrate how an evidentiary hearing would have elicited evidence that would convince the court that requiring P.D. to spend more time with an adjudicated sex offender—an adjudicated sex offender who had abused him—was in the child’s best interest.

At ¶ 12.

June 25, 2013, Utah Supreme Court Case Summaries

June 25, 2013

Utah Supreme Court

Zions Management v. Record, 2013 UT 36, No. 20110860 (June 25, 2013)

ISSUE: Finality of an Order to Enforce Arbitration & Interpretation of an Arbitration Clause

Chief Justice Durrant,

Appellant Jeffrey S. Record seeks appellate review of the district  court’s order compelling  him to arbitrate various  claims that arose out of his employment with Appellee Zions Management Services Company (Zions). Mr. Record argues that the district court erred in compelling arbitration because the plain language of the arbitration clause in his employment contract allows him to pursue administrative remedies prior to submitting to arbitration. We agree. Accordingly, we vacate the district court’s order compelling arbitration and remand for further proceedings.

At ¶ 1.

.   

The Court summarizes the background of the case.

At ¶¶ 2-10. 

Jurisdiction

Mr. Record admits that he signed several documents acknowledging receipt of Zions’ “Employee Handbook,” and the Arbitration Agreement contained within the Handbook expressly states that it is governed by the FAA: “Because employment with [Zions] involves interstate commerce, this binding arbitration agreement is made pursuant to, and is governed by, the Federal Arbitration Act.” (Emphasis added.) And under Section 16(a)(3) of the FAA, appeals may only be taken from “a final decision with respect to an arbitration that is subject to this title.”  Thus, we agree with Zions’ argument that Mr. Record’s appeal was proper only if the district court’s order constitutes a “final order.”

At ¶ 16. 

We disagree, however, with Zions’ assertion that federal rather than state law applies to  the procedural question of whether the order was “final.” The United States Supreme Court has recognized the “general and unassailable proposition . . . that [s]tates may establish the rules of procedure governing litigation in their own courts.” But in the same opinion the Court cautioned that “where state courts entertain a federally created cause of action, the ‘federal right cannot be defeated by the forms of local practice.’” In other words, if state procedure poses “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” then federal procedural law would preempt state law. Thus, the question for us becomes whether the application of our own procedural rules would pose “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” when it enacted the FAA.

At ¶ 17. 

. . . Whether an order is “final” for the purposes of appeal is a purely procedural question, and given that (a) Congress has not expressly preempted the application of local procedural rules in the FAA and (b) the application of local procedural rules will not frustrate the purposes of the FAA, we conclude that even in litigation governed by the FAA, state procedural rules and applicable principles of law will apply. Accordingly, we address the issue of the finality of the district court’s order under Utah law.

At ¶ 19. 

Finality of Order

Zions’  principal  argument  against  the  finality  of  the district   court’s  order  is   that  the  order  included   a  stay  of Mr. Record’s administrative appeal  that was pending  before the Labor Commission, rather than a dismissal. Had the district court dismissed the discrimination claims that were pending on appeal before the Labor Commission and then ordered arbitration, Zions argues, the order would have been “final” and this appeal would be proper. Zions also contends that the order lacked finality because the district court retains jurisdiction to confirm, vacate, modify, or correct the arbitration award once arbitration is completed.  We are not persuaded by either  of these arguments because (1) the district court did not have the authority to issue the stay of the administrative proceedings, which means that the order compelling arbitration completely resolved the controversy between  the  parties,  making  it  a  “final”  order  from  which Mr. Record  could   appeal;   and  (2)  the  availability  of  post- arbitration remedies  before the district  court does not affect the finality of an order compelling arbitration.

At ¶ 20. 

Mr. Record initiated administrative proceedings when he filed a claim with UALD  alleging discrimination. Accordingly, under UAPA  the district court has no jurisdiction over those proceedings  until Mr.  Record has exhausted his  administrative remedies, at which point Mr. Record can seek judicial review of the agency’s decision.   Thus, when it was presented with the district court’s order that purported to stay Mr. Record’s administrative appeal, the Labor Commission correctly reasoned that “[t]he District Court  does not have jurisdiction to stay the Commission’s proceedings for an employment discrimination claim.” This is correct because the district court’s jurisdiction over those proceedings arises only after all administrative remedies have been exhausted. But because Mr. Record was just beginning to avail himself of those remedies at the time the district  court attempted to issue the stay, the district court acted without jurisdiction, rendering its order void.

At ¶ 25. 

Accordingly, for the purposes of determining whether we have jurisdiction over this appeal, we will ignore the district court’s attempt to stay the administrative proceedings. Once the stay is removed from the district court’s order, the only issue before the district court was whether the Arbitration Agreement should be enforced. And once the district court issued its Order Compelling Arbitration, there was nothing left for the district court to do. Thus, under the reasoning of [Powell v. Cannon, 2008 UT 19, 179 P.3d 799], the district court’s order was a “final decision” because it effectively ended the controversy between the parties and left no claims  pending before the district court. We therefore have jurisdiction to hear this appeal.

At ¶ 26. 

Zions also argues that the district court’s order was not final because “the district court . . . retains jurisdiction, under both the FAA and [Utah Arbitration Act], to enter post-arbitration judgment and to otherwise confirm, vacate, modify or correct the arbitration award.” We disagree.

At ¶ 27. 

Although we stated in Powell that “the  [district]  court may modify or correct an arbitration award before entering a judgment on it,” the fact remains that in Powell the district court had stayed litigation on the underlying claims for negligence and medical  malpractice. Thus, while arbitration was proceeding, those claims remained live before the district court, and thus the district court did, in fact, “retain jurisdiction” over those claims, which is why we determined that the district court’s order compelling arbitration and staying litigation was not final.

At ¶ 28. 

But here there were no live claims that remained before the district court after it issued its order. As demonstrated above, the district court’s attempt to stay the administrative proceedings was void for lack of jurisdiction, and even though the district court may, pursuant to either the FAA or the Utah Arbitration Act, “confirm, vacate, or modify” an arbitration award, this fact does not affect the finality of an order compelling arbitration where no claims remain before the district court after it issues the order. Therefore, we conclude that the district court’s order was final and that we have jurisdiction to hear the merits of this appeal.

At ¶ 29.

Having determined that it has jurisdiction, the Court reviews the language in the parties’ arbitration agreement and determines that it unambiguously allows Mr. Record to pursue his claims with an administrative agency before going to arbitration.

At ¶¶ 30-36.

Under  the parties’  Arbitration  Agreement, Mr.  Record was not required to submit his discrimination claims to arbitration until he sought relief based on those claims “beyond the agency.” Because he has not yet pursued relief beyond the Labor Commission, the district court erred when it issued its order compelling arbitration.  We therefore vacate  that order and remand this case to the district court for further proceedings consistent with this opinion.

At ¶ 37.

State v. Maughan, 2013 UT 37, No. 20120524 (June 25, 2013)

ISSUE: Sufficiency of Evidence for Bindover on an Obstruction of Justice Charge

Justice Lee,

Wade Maughan confessed to helping Glenn Griffin commit murder. After being granted use immunity, Maughan was called as a witness at Griffin’s  murder trial.  Maughan refused to testify and was charged with obstruction of justice.

At the preliminary hearing on that charge, the magistrate declined to bind Maughan over for trial, concluding that the State had failed to present evidence of the specific intent required by the obstruction of justice statute. The State appealed, and the court of appeals affirmed. We now reverse. Expounding on our recent opinions clarifying the standard that governs the bindover decision on a preliminary hearing, we find that the evidence was sufficient to bind Maughan over for trial for obstruction of justice.

At ¶¶ 1-2.  

The Court recounts the factual and procedural background of this case.

At ¶¶ 3-12.

Maughan was charged with obstruction of justice for concealing unprivileged information concerning a criminal offense in contravention  of  an  order  to  provide  it.  UTAH CODE  §  76-8-306(1)(i). In Utah this is a crime of specific intent. It requires proof of “intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that  constitutes a criminal offense.” Id. § 76-8-306(1). The question before us is whether the State presented enough evidence of specific intent to bind Maughan over for trial. We find that it did, and  reverse the court  of appeals’ contrary conclusion. In so doing, we agree with the court of appeals that there was some evidence sustaining an inference of intent to hinder Griffin’s prosecution, but find no room in the liberal bindover standard for second-guessing the reasonableness of that inference.

At ¶ 13.

To bind a defendant over for trial, the prosecution is required only to “produce believable evidence of all the elements of the crime charged,” State v. Clark, 2001 UT 9, ¶ 15, 20 P.3d 300 (internal quotation marks omitted), or, in other words, “evidence sufficient to support a reasonable belief that the defendant com- mitted the charged crime,” Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (internal quotation marks omitted). The magistrate, moreover, must “view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” Clark, 2001 UT 9, ¶ 10 (internal quotation marks omitted). This is a lenient standard. An inference is reasonable unless it falls “to a level of inconsistency or incredibility that no reasonable jury could accept it.” Ramirez, 2012 UT 59, ¶ 14 (internal quotation marks omitted).

At ¶ 14. 

We conclude that the State satisfied this standard here. It carried its burden of producing believable evidence that Maughan had been Griffin’s friend  and thus may have sought to prevent his conviction.  Such  evidence  provided  some  indication  that Maughan had a motive to prevent Griffin’s prosecution and  conviction. And because evidence of motive is often employed circumstantially to establish specific intent, see State v. Smith, 728 P.2d  1014,  1016  (Utah  1986) . . .  the evidence of a friendship between Maughan and Griffin supported a reasonable inference that Maughan wished to impede Griffin’s prosecution.

At ¶ 15. 

The court of appeals acknowledged this inference as “plausible”—and noted that  the logical “path” to it was “simple”—but nonetheless rejected it as “contradicted and overwhelmed” by evidence of the contrary inference that Maughan was “intensely absorbed” in protecting his rights in defending against the murder charge against him. State v. Maughan, 2012 UT App 121, ¶¶ 16–18, 276 P.3d 1258. In so doing, however, the court of appeals overstepped the bounds of the liberal bindover standard. It rendered its own assessment of the most reasonable inference to be drawn from the evidence instead of asking whether the evidence could reasonably sustain the inference proposed by the prosecution.

At ¶ 16.

Under this standard, we see no way to dismiss the inference  proposed by the  prosecution as “simply speculative.” Maughan, 2012 UT App 121, ¶ 18. The court of appeals did so based on the ample support for a contrary inference that it found in the record. Because Maughan consistently “expressed strong distrust that the grant of immunity would fully protect him,” and did so “at virtually every procedural juncture of the case,” the court of appeals deemed the “totality of the evidence” to sustain only one reasonable inference.  Id. ¶¶ 17–18. The conclusion does not follow from the premise, however.

At ¶ 18. 

Reasonable minds could differ on the factual matters before us. Perhaps a jury would ultimately agree with Maughan, concluding that  “the only reasonable inference to be drawn from the totality of the evidence is that Maughan acted in his own self-interest” and  not to hinder the prosecution of his friend Griffin. Maughan, 2012 UT App 121, ¶ 20. But in our view the magistrate and the court of appeals jumped the gun in rendering their own assessment of these issues. . . .  We accordingly reverse and remand with a mandate to bind Maughan over for trial on a single count of obstruction of justice. See id. ¶ 17.

At ¶ 21.