July 11, 2013, Utah Court of Appeals Case Summaries

July 11, 2013

Utah Court of Appeals Cases

R.T. v. State, 2013 UT App 169, No. 20130374-CA (July 11, 2013)

ISSUES: Time for appeal of criminal contempt; preservation of issues for appeal; sufficiency of evidence for finding of neglect; due process for warrant of removal  

Per Curiam,

 R.T. (Mother) appeals the juvenile court’s March 25, 2013 Findings of Fact, Conclusions of Law and Order (the adjudication order) concluding that she neglected her minor children. In her petition on appeal, Mother also states for the first time that she appeals the March 19, 2013 Minutes, Findings, and Order (the disposition order) and the February 19, 2013 Minutes, Findings and Order  on  an  Order  to  Show  Cause  for  adult  contempt  (the contempt order).

At ¶ 1.

The Court holds that because Mother did not file a timely notice of appeal from the contempt order, i.e., within 30 days or the order, it lacks jurisdiction over Mother’s appeal from the contempt order.

At ¶ 2.      

The Court refuses to consider an issue related to the disposition order because the order was not identified in Mother’s notice of appeal, her petition did not argue it, she did not personally appear at the disposition hearing, and her counsel stated that Mother did not oppose the juvenile court’s decision.

At ¶ 4.       

Mother contends that the juvenile court erred by basing its neglect adjudication solely upon two positive drug tests and by inappropriately applying In re. S.Y., 2003 UT App 66, 66 P.3d 601, to supplant the State’s requirement to present evidence of neglect. Utah Code section 78A-6-105(27) defines neglect to include lack of proper parental care by reason of the parent’s faults or habits. See Utah Code Ann. § 78A-6-105(27)(a)(ii) (LexisNexis 2012). Mother claims that the juvenile court based its neglect findings solely upon methamphetamine use and rendered the statutory definition of neglect meaningless by failing to consider evidence of her otherwise adequate parental care. We consider Mother’s claim as a challenge to the sufficiency of the evidence to support the findings of fact.

At ¶ 5.

The Court reviews the juvenile court’s findings, both oral and written, and finds that they demonstrate a progression in reasoning that was not based solely upon Mother’s positive drug tests and was instead based upon the totality of the circumstances, including the positive drug tests, Mother’s past history, and her current behavior.  The Court finds that because there is a basis for the neglect findings in the record, it will not disturb the findings of fact on appeal.

At ¶ 5.      

Mother also claims that the removal and the subsequent neglect adjudication was based upon daughter D.T.’s anxiety rather than on a demonstration of actual parental neglect.

The Court defers to the juvenile court’s credibility determination that where there was conflict between testimony of Mother and that of D.T., D.T. was more credible.

At ¶ 6.

Mother claims that inaccuracies in the warrant application and affidavit resulted in the issuance of a warrant for removal that was not supported by probable cause.

The Court reviews the juvenile court’s findings and determines the warrant was supported by probable cause.

At ¶ 7.            

State v. Daughton, 2013 UT App 170, No. 20110276-CA (July 11, 2013)

ISSUES: jury polling regarding publicity during trial; ineffective assistance of counsel regarding failure to request further questioning during polling; impermissible ex post facto application of sentencing law

Judge McHugh,

Philip Victor Daughton appeals from his convictions and sentences for sodomy on a child, a first degree felony, . . . sexual abuse of a child, a second degree felony, . . . and lewdness involving a child, a class A misdemeanor . . . . We affirm Daughton’s convictions, but we vacate the trial court’s sentencing order and remand for further sentencing proceedings.

At ¶ 1.

The Court outlines the factual background of the case, specifically: (1) the trial court’s order excluding evidence of Defendant’s prior bad acts, (2) the publication of a newspaper article concerning the excluded evidence, (3) the judge’s questioning of the jurors concerning their knowledge about the article, (4) the completion of the trial, (5) the guilty verdict, and (6) the judge’s sentence.

At ¶ 7.

Daughton concedes that trial counsel did not preserve the issue but argues that the trial court committed plain error by failing to adequately poll the jury regarding inherently prejudicial publicity. [The court explains the plain error standard.]

At ¶ 8.

 Daughton argues that the trial court erred because it did not adequately question Juror 18. Although the State concedes that the Article discussed  excluded evidence and was inherently prejudicial, it contends that the trial court’s questioning of the jury was sufficient to ensure that the jury was not tainted.

At ¶ 9.

In State v. Clark, 675 P.2d 557 (Utah 1983), the Utah Supreme Court instructed that “when requested by counsel to poll the jury regarding publicity during the trial, the trial court must rule as a matter of law whether the publicity is potentially prejudicial or not prejudicial at all.” Id. at 560–61. “If the publicity is potentially prejudicial, then the [trial] court must question the jurors regarding their exposure and their understanding of it.” Id. at 561. The supreme court also explained that the publication of excluded evidence falls in the category of inherently prejudicial publicity. Id. at 560.

At ¶ 10.

In  this  case,  both  parties  agree  that  the  Article  was inherently prejudicial to Daughton because it contained information specifically excluded by the trial court. Because of the risk of prejudice that could result from the jury’s exposure to the Article, the trial court questioned each juror individually in camera with counsel present. Only one juror, Juror 18, indicated that she had read The Spectrum that morning.

The Court quotes the trial court’s complete interview of Juror 18.

At ¶ 11.

Daughton argues that Juror 18’s “responses to the trial court’s polling questions are contradictory” and therefore “it should have been obvious to the trial court that it needed to ask [Juror 18] to clarify her contradictions regarding her exposure to the article in question.” In particular, Daughton asks us to infer from the inaudible portion of Juror 18’s response that Juror 18 had read some potentially relevant information and that the trial court should have inquired further into the specific material that Juror 18 had seen.

At ¶ 12.

However, a fair reading of the transcript indicates that Juror 18 admitted to having read parts of The Spectrum that morning. When the trial court began further questioning, Juror 18 stated, “Absolutely.  I  didn’t  see  anything.  I  saw  that  (inaudible) something. I didn’t read the whole thing.” Although this statement is confusing as to whether Juror 18 read some part of the Article, the trial court continued its examination by asking directly, “Did you read anything pertaining to this case?” Juror 18 unequivocally responded, “Absolutely not.” Thus, despite the initial confusion, the trial court adequately inquired and clarified that Juror 18 had not been exposed to the prejudicial publicity. The trial court was in the best position to assess the truthfulness of Juror 18’s statement that even though she had read some of The Spectrum that day, she had not read the Article related to Daughton’s case. See Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 16, 288 P.3d 1046 (“Assessing the credibility of a witness is within the trial court’s domain.”). Indeed, we “presum[e] that the trial judge, having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties, is in a better position to perceive the subtleties at issue than we can looking only at the cold record.” State v. Calliham, 2002 UT 86, ¶ 23, 55 P.3d 573. Furthermore, although the transcriber was unable to understand all of Juror 18’s response to one of the trial court’s questions, it may have been audible to the court and counsel at the time. Nevertheless, both the court and counsel were satisfied that Juror 18 had not read the Article.

At ¶ 13.

The Court holds that the trial court adequately polled the jury under State v. Clark, and that Daughton failed to demonstrate plain error.

At ¶ 14.

Next, Daughton claims that he was denied his constitutional right to the effective assistance of counsel. [The Court recites the standard for showing ineffective assistance of counsel.]

At ¶ 15.

The Court finds that Daughton’s counsel did not act deficiently because (1) requesting that the trial court further question Juror 18 would have been futile, and (2)  Daughton’s trial counsel may have had a tactical reason for not asking for additional examination of the jurors

At ¶¶16-17.

On appeal, Daughton argues that the trial court erred when it “failed to give adequate weight to . . . mitigating factors” in sentencing  him to  consecutive, rather  than  concurrent, terms. Specifically, Daughton contends that the trial court gave inordinate weight  to  Child’s  comments  when  it  imposed  consecutive sentences. In response, the State concedes that resentencing is required, but for a different reason. The State calls our attention to the  fact  that  “the  trial  court  imposed  the  incorrect  statutory sentence for sodomy on a child.”

At ¶ 19.

When the Legislature alters the penalty for a crime after a defendant has allegedly committed the crime but before sentencing, the new statute—the one in effect at the time of sentencing—is applied so long as “it does not raise a Constitutional question of being an ex post facto law by reason of increasing the punishment.”

State v. Dominguez, 1999 UT App 343, ¶ 11, 992 P.2d 995 (quoting Belt v. Turner, 483 P.2d 425, 426 (Utah 1971)); see also U.S. Const. art. I, § 10, cl. 1 (“No State shall . . . pass any . . . ex post facto Law . . . .”); Utah Const. art. I, § 18 (“No . . . ex post facto law . . . shall be passed.”). “An ex post facto law is one . . . which makes more burdensome the punishment for a crime, after its commission . . . .” Monson v. Carver, 928 P.2d 1017, 1026 (Utah 1996) (citation and internal quotation marks omitted). Because of this constitutional concern, when “[an] amendment increases the punishment” for an offense between the time of the crime’s commission and the time of sentencing, “the sentence should be determined according to the law in effect on the date the crime was committed.” Dominguez, 1999 UT App 343, ¶ 11.

At ¶ 20.

The court finds that twenty-five years to life in prison was not a sentencing option at the time the offense was committed, the trial court’s imposition of that 2008 sentencing option exceeded the statutory range permitted in 2002, and constituted an impermissible ex post facto application of law in regard to Daughton.

Accordingly, the trial court erred when it applied the 2008 version of Utah Code section 76-5-403.1 to sentence Daughton to twenty-five years to life for a crime he committed in 2002.

At ¶ 21.

Godfrey v. Board of Pardons & Parole, 2013 UT App 171, No. 20130366-CA (July 11, 2013)

ISSUE: Review of Parole Board sentencing decision

Per Curiam:

James C. Godfrey appeals the trial court’s order granting the Board of Pardons and Parole’s (the Board) motion for summary judgment that resulted in the dismissal of his petition in its entirety. This is before the court on its own motion for summary disposition based on the lack of a substantial question for review. We affirm.

At ¶  1.

The Court determines that trial court did not err in reconsidering its previous denial of the Board’s motion for summary judgment pursuant to the Board’s rule 60(b) motion because (1) A motion pursuant to rule  60(b)  may  be  used  as  a  means  to  obtain  a  trial  court’s reexamination of the denial of a motion for summary judgment. Rees v. Albertson’s Inc., 587 P.2d 130, 131–32 (Utah 1978), and the motion essentially sought reconsideration of a non-final order, which is permitted under the rules of civil procedure. Gillett v. Price, 2006 UT 24, ¶ 10, 135 P.3d 861.

At ¶  2.

Godfrey asserts that disputed material facts exist to preclude summary judgment. However, he argues facts that were before the Board at his parole hearing rather than facts related to the summary judgment. . . . The relevant facts for the purposes of summary judgment in this case are that Godfrey received a copy of the material that the Board would consider in determining his term and that the Board set a term within the statutory range applicable to Godfrey. The trial court found that Godfrey had received due process regarding his parole hearing and that the term set was well within the range of two sentences of up to life in prison.

At ¶  3.

The Board’s decisions regarding inmates’ possible parole dates are not generally reviewable by courts. See Utah Code Ann. § 77-27-5(3)(LexisNexis 2012) (providing that the decisions of the Board in cases of paroles are “final and not subject to judicial review”). Appellate courts “review the fairness of the process by which the Board undertakes its sentencing function” but do not “sit as a panel of review on the result.” Monson v. Carver, 928 P.2d 1017, 1023 (Utah 1996). Due process “requires that the inmate know what information the Board will be considering at the hearing and that the inmate know soon enough in advance to have a reasonable opportunity to prepare responses and rebuttal of inaccuracies.” Labrum v. Board of Pardons, 870 P.2d 902, 908 (Utah 1993). Furthermore, so long as the incarceration term is within the applicable indeterminate range, the term will not be considered arbitrary or capricious absent unusual circumstances and will be beyond court review. Monson, 928 P.2d at 1023.

At ¶  4.

Godfrey received the material that would be considered at his hearing and had the opportunity to address any issues or inaccuracies in the materials. In fact, he states that he wrote letters to put forth his information and to correct information that he thought was inaccurate. The trial court did not err in finding that the Board comported with due process requirements.

At ¶  5.

The court holds that sentencing guidelines are not binding on the Board, which retains full discretion to determine incarceration terms on an individual basis. As a result, Godfrey’s arguments regarding any entitlement or expectation under the guidelines is without merit, and the Board is entitled to judgment as a matter of law.

At ¶  6.

Regardless of how his appeal is framed, Godfrey challenges the substantive decision of the Board. However, that decision is not within this court’s purview. Moreover, Godfrey largely reargues his trial court position and does not address the appellate posture of the case. Because this is a court of review, an appellant must address the reasoning of a challenged order or judgment. Allen v. Friel, 2008 UT 56, ¶ 14, 114 P.3d 303. Godfrey asserts various Board errors but does not address the trial court’s reasoning for granting summary judgment. As a result, he fails to present a substantial issue for review warranting further proceedings by this court.

At ¶  7.

Kunej v. Labor Commission, 2013 UT App 172, No. 20120416-CA (July 11, 2013)

ISSUE: Gender discrimination in employment, Pretext; Disqualification of a judge; Prosecutorial Misconduct not applicable in civil cases

Judge Christiansen,

Chris K. Kunej challenges the Labor Commission’s (the Commission) order dismissing Kunej’s employment discrimination claim against the University of Utah (the University). We decline to disturb the Commission’s decision.

At ¶ 1.

The Court recounts Kunej’s allegations that his failure to obtain employment with the University of Utah was the result of gender discrimination, and the Labor Commission’s orders dismissing the claim as unsubstantiated.

At ¶ 2.

Kunej first argues that the Commission erred in concluding that the reasons given by the University for declining to hire Kunej were not a pretext for gender-based discrimination. Under the Utah Antidiscrimination Act (UADA), it is a discriminatory employment practice to refuse to hire any person otherwise qualified because of that person’s gender. . . . “To establish a claim of employment discrimination, the employee has the initial burden to establish a prima facie showing of the employer’s discrimination.” Sheikh v. Department of Pub. Safety, 904 P.2d 1103, 1106 (Utah Ct. App. 1995) (citation and internal quotation marks omitted). “Once a prima facie case has been established, the burden to produce evidence shifts to the employer who must articulate a legitimate, nondiscriminatory reason for its suspect conduct.” Id. “If the employer succeeds in rebutting the inference of discrimination, the burden of production shifts back to the employee who must then show by a preponderance of the evidence that the employer’s articulated reasons were merely a pretext for discrimination.” Id. “The ultimate burden of persuasion that the employer discriminated against the employee remains at all times with the plaintiff.” Id. (citation and internal quotation marks omitted).

At ¶ 3.

The parties do not dispute that Kunej initially made a prima facie showing of discrimination and that the University articulated a nondiscriminatory explanation of its hiring decisions. Thus, Kunej had the burden to persuade the Commission “that a discriminatory reason more likely motivated [the employer] than the reasons it proffered or, in the alternative, to discredit its explanation.” See University of Utah v. Industrial Comm’n, 736 P.2d 630, 636 (Utah 1987).

At ¶ 4.

The Court applies Murray v. Labor Comm’n, 2013 UT 38’s new analysis concerning judicial review of administrative decisions and determined that a determination of whether the proffered explanation for not hiring the plaintiff is a pretext is a “fact-like” mixed question of law and fact, and thus entitled to deference and will not be overruled unless clearly erroneous.

At ¶ 5.

Kunej has failed to show that the Commission’s determination that the reasons for the University’s hiring decisions proffered were pretextual

To show that an employer’s explanation for a hiring decision is pretextual, a plaintiff must “demonstrat[e] that the employer’s explanation for its decision was so implausible, incoherent, or internally contradictory that the decision must have been made on some other basis.” Conroy v. Vilsack, 707 F.3d 1163, 1174 (10th Cir. 2013) (citation and internal quotation marks omitted). In evaluating the employer’s justification for its hiring decision, the court must “examine the facts as they appear to the person making the decision.” Id. (citation and internal quotation marks omitted). Thus, a court does not evaluate whether an employer’s hiring decision was “wise, fair or correct,” but only whether its decision was made in good faith, Exum v. United States Olympic Comm., 389 F.3d 1130, 1138  (10th  Cir.  2004)  (citation  and  internal  quotation  marks omitted), and based on lawful criteria, University of Utah, 736 P.2d at 636.

At ¶ 6.

We note at the outset that Kunej does not marshal the evidence supporting the Commission’s factual findings, as he purports to challenge only the Commission’s legal conclusions. Thus, we “assume the record supports the Commission’s findings” contained within the final agency order regarding the qualifications required for each of the positions at issue and the qualifications of Kunej and the hired applicants. See Whitear v. Labor Comm’n, 973 P.2d 982, 985 (Utah Ct. App. 1998).

At ¶ 7.

First,  Kunej  purports  to  show  that  various  candidates selected by the University were less qualified than the University believed them to be, yet this argument misunderstands the relevant inquiry. “The relevant inquiry is not whether [the employer’s] proffered explanations were wise, fair or correct, but whether [it] honestly believed those reasons and acted in good faith on those beliefs.” Exum, 389 F.3d at 1138 . . . .

At ¶ 9.

Second, Kunej places much weight on a supposed disparity between his own qualifications and those of the hired applicants. To demonstrate pretext on this basis, Kunej must show “an overwhelming merit disparity” between himself and the selected applicant  for  a  given  position.  See  Conroy,  707  F.3d  at  1172. [The Court reviews Commission’s findings and determines that they do not reflect an overwhelming merit disparity]  . . . Given the factual findings here, the Commission’s conclusion that there was insufficient disparity between Kunej’s purported qualifications and the qualifications of the successful candidates to support a finding of pretext is not clearly erroneous.

At ¶ 10.

Additionally, Kunej asserts that a variety of alleged inconsistencies or contradictions in witness testimony at the evidentiary hearing demonstrate that the University’s proffered explanation is merely a pretext.

The Court finds that, due to the Appellant’s failure to provide transcripts of the evidentiary hearing the record is inadequate, and the Court must presume the regularity of the proceedings below.

At ¶ 11-12.

Finally, Kunej claims that pretext is shown by the Director’s questioning of Kunej about his knowledge of financial aid during a meeting Kunej requested to discuss his concerns about not being hired. Kunej asserts that the Director’s questioning regarding Kunej’s financial aid knowledge shows “disparate treatment” because none of the other candidates for the financial aid position were tested on their knowledge of the subject. However, Kunej does not explain how this supports his claim of gender discrimination when four of the other twelve candidates interviewed for the position were also men. Furthermore, Kunej argues that, subsequent to that meeting, the Director’s name was added to the financial aid department’s online staff directory, where it had not appeared before. Kunej argues that the addition of the Director’s name to the staff directory shows “deceit used to cover one’s tracks” because Kunej had voiced concerns about the male-to-female staff ratio in the department. Kunej does not allege that  the  addition  of  the  Director’s  name  to  the  listing  was inaccurate or dishonest. Rather, Kunej argues that the correction of this omission in the online staff directory is evidence of pretext because it had the effect of improving the apparent male-to-female staff ratio of the department.

At ¶ 13.

Having reviewed the Commission’s factual findings, we conclude that we must defer to the Commission’s application of the law to the facts before it. Even if we accept Kunej’s argument regarding the staff directory, the University’s explanation for its hiring decision for each of the positions at issue here, viewed in light of the whole record, is not “so implausible, incoherent, or internally contradictory” that it was erroneous for the Commission to find the proffered explanation was not pretextual. Because the Commission’s determination that the University’s explanations were not pretextual is not clearly erroneous, we decline to disturb the Commission’s decision on this basis.

At ¶ 14.

Kunej Failed to Demonstrate Disparate Impact

Kunej next argues that the Commission erred in finding that Kunej did not demonstrate that the University’s hiring practices had a disparate impact on him as a male. “[A] plaintiff may establish a prima facie case of disparate impact discrimination by showing that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.” Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006) (alteration in original) (citation and internal quotation marks omitted). “[W]here a plaintiff relies on statistical evidence” to demonstrate disparate impact, “he must show gross statistical disparities.” Foster v. Ruhrpumpen, Inc., 166 F. App’x 389, 393 (10th Cir. 2006) (citation and internal quotation marks omitted). Whether a party has failed to establish a prima facie case of employment discrimination is a question of law, which we review for correctness. See Sheikh v. Department of Pub. Safety, 904 P.2d 1103, 1105 (Utah Ct. App. 1995); see also Murray v. Labor Comm’n, 2013 UT 38, ¶¶ 23–24 (explaining that our traditional standards of review are applicable to judicial review of an agency’s interpretation or application of the law).

At ¶ 15.

The employment practice that Kunej claims caused a disparate impact on male applicants was the subjective nature of the interviews conducted by various departments at the University. However, the limited statistical evidence contained in this record does not show a significant disparate impact on male applicants. The Commission found that of the twenty-four positions for which Kunej applied that were ultimately filled by the University, 74% were filled with female applicants from an applicant pool that consisted of 72% females.  We agree with the Commission that such a minimal difference between the gender composition of the applicant pool and the hired applicants does not show the “gross statistical disparities” necessary to demonstrate a significant disparate impact on male applicants. See Foster, 166 F. App’x at 393.

At ¶ 16.

Kunej contends that we should evaluate his disparate impact claim solely on the basis of the six positions for which the Commission determined Kunej’s claims were timely filed. Kunej provides no authority for the proposition that the University’s hiring practices outside of the 180-day limitations period on filing a discrimination claim are not relevant to a disparate impact analysis. However, even if Kunej were correct, this argument is self-defeating because the suggested group is “too small to provide reliable statistical results” and thus “carries little or no probative force to show discrimination.” See Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991) (explaining that a group of nine employees was too small a statistical sample to provide reliable results, because the termination or retention of just one or two employees  “would  have  had  an  enormous  impact  on  the percentage” of employees impacted). Because Kunej has failed to advance evidence demonstrating a significant disparate impact on male applicants  attributable to the challenged  employment practice, he has not made a prima facie case of disparate impact. Thus, the Commission did not err by dismissing his disparate impact claim.

At ¶ 17.

Alleged Judicial Bias

Kunej  next  claims  that  the  Commission  erred  by  not vacating the decision of the ALJ due to the ALJ’s failure to disqualify herself from the case. Kunej alleges that the ALJ was biased because the ALJ previously worked for the University and for the Utah Attorney General’s Office (which represents the University in this proceeding). “Determining whether a trial judge committed error by failing to recuse himself . . . is a question of law, and we review such questions for correctness.” See Lunt v. Lance, 2008 UT App 192, ¶ 7, 186 P.3d 978 (omission in original) (citation and internal quotation marks omitted); see also Murray, 2013 UT 38, ¶¶ 23–24 (explaining that our traditional standards of review are applicable to judicial review of an agency’s interpretation or application of the law). Because “judges are presumed to be qualified,” the party alleging bias “bears the burden of demonstrating that the judge is not qualified to act on the case.” In re Affidavit of Bias, 947 P.2d 1152, 1153 (Utah 1997) (mem.).

At ¶ 18.

Under Utah Code section 78A-2-222, a judge may not sit or act in any proceeding in which she has been attorney or counsel for either party in that proceeding, except by consent of the parties. Utah Code Ann. § 78A-2-222(1)(c) (LexisNexis 2012). This prohibition is applicable to administrative law judges. Anderson v. Industrial Comm’n, 696 P.2d 1219, 1221 (Utah 1985). However, a judge need not recuse herself in every case where she has had contact with a party on an unrelated matter, see State v. Neeley, 748 P.2d 1091, 1094 (Utah 1988), or where her former employer participates as counsel in the proceeding on a matter in which the judge herself never participated, see In re Affidavit of Bias, 947 P.2d at 1155. Here, the ALJ worked in the Utah Attorney General’s Office from August 1991 to November 1993 and from November 1998 to July 2003. The ALJ also worked in the University’s Office of Equal Opportunity and Affirmative Action from June 1994 to July 1996. There is nothing in the record before us to suggest any connection between the present litigation and any matters in which the  ALJ  was  involved while  employed at the Utah Attorney General’s Office or the University that would have required the ALJ’s recusal under section 78A-2-222.

At ¶ 19.

Additionally,  a  judge  “should  disqualify  herself  in  a proceeding in which the judge’s impartiality might reasonably be questioned.” West Jordan City v. Goodman, 2006 UT 27, ¶ 21, 135 P.3d 874 (citation and internal quotation marks omitted). However, “judges are not subject to disqualification in every situation where their impartiality is questioned, particularly when the potential for bias is remote.” Id. “Where a case . . . involves remote, contingent, indirect or speculative interests, disqualification is not required.” American Rural Cellular, Inc. v. Systems Commc’n Corp., 939 P.2d 185, 196 (Utah Ct. App. 1997) (citation and internal quotation marks omitted). Kunej has not introduced evidence that the ALJ had any direct personal or financial interest in the outcome of the litigation, or any other interest that is not indirect or speculative. See id. at 196. Moreover, there is no evidence of impropriety or actual bias on the part of the ALJ. See In re Affidavit of Bias, 947 P.2d at 1154 (“[T]he mere fact that a judge decides a case against a party may not be considered in determining bias.”). We therefore conclude that the ALJ  was  not  required  to  disqualify  herself,  and  that  the Commission did not err in refusing to vacate the ALJ’s decision on that basis.

At ¶ 20.

Prosecutorial Misconduct

Kunej asserts that the University’s counsel committed “prosecutorial misconduct.”

At ¶ 21.

Even if we assume that all of the facts alleged by Kunej to support this claim are true, Kunej cannot succeed on a prosecutorial misconduct claim because counsel for the University are not prosecutors. The claim of prosecutorial misconduct is premised upon the unique role of the prosecutor in a criminal case and is inapplicable to a civil action. See State v. Todd, 2007 UT App 349, ¶ 17, 173 P.3d 170 (“In our judicial system, ‘the prosecution’s responsibility is that of a minister of justice and not simply that of an dvocate’ . . . .” (quoting State v. Hay, 859 P.2d 1, 7 (Utah 1993))); see also Utah R. Prof’l Conduct 3.8 & cmt. 1 (identifying the special responsibilities of a prosecutor). Although Kunej urges this court to apply an “elevated standard of conduct” to the University’s counsel as “a representative of the state,” we disagree that the role of defense counsel for a state university in a civil proceeding is sufficiently analogous to that of a prosecutor in  a  criminal proceeding to warrant such a standard here. We therefore conclude that Kunej’s misconduct claim must fail as a matter of law, and we decline to disturb the Commission’s decision on that basis.

At ¶ 22.

The Court rules that Kunej failed to preserve his claim that the University’s use of his deposition at the evidentiary hearing violated his due process rights because the taking of the deposition did not comply with the Utah Rules of Civil Procedure. See Utah R. Civ. P. 30 (governing the taking of oral depositions).

At ¶ 23-24.

Kunej Did Not Preserve Abuse of Discretion Claim

The Court rules the Kunej failed to preserve his claim that the Antidiscrimination and Labor Division abused its discretion in making its initial determination of “No Reasonable Cause.”

At ¶ 25.

De Adder v. IHC, 2013 UT App 173, No. 20110709-CA (July 11, 2013)

ISSUE: Medical malpractice, Qualification of an expert to testify regarding the standard of care required of a professional in another expertise.

Judge Roth,

Donalda De Adder appeals from the grant of summary judgment in favor of Intermountain Healthcare, Inc. (IHC). We affirm.

At ¶ 1.

I. The District Court’s Rulings on the Admissibility of Dr. Jackson’s Testimony

IHC’s  motion  for  summary  judgment  challenged  Dr. Jackson’s qualifications to present expert testimony regarding the standard of care for nurses using the CPM device on the basis that Dr. Jackson is an orthopedic surgeon with “no training or experience as a nurse” or any experience with operating or monitoring the CPM device.  The district court agreed with IHC and excluded Dr. Jackson’s testimony. Ordinarily, because of the district court’s discretion in this area, we afford the court considerable latitude in determining the admissibility of expert testimony. Eskelson, 2010 UT 59, ¶ 5. De Adder, however, contends that  the  court’s  determination of Dr. Jackson’s qualifications involved impermissible fact finding at the summary judgment stage of proceedings. Therefore, we are presented with a threshold issue of whether the  court properly evaluated Dr. Jackson’s qualifications for purposes of the summary judgment motion.

At ¶ 9.

The  District  Court  Properly  Evaluated  Dr.  Jackson’s Qualifications as an Expert on the Nursing Standard of Care.

The Court describes the general standard for summary judgment.

Specifically, to recover on a claim of medical malpractice, “the plaintiff must produce expert testimony” to show that there is at least an issue of fact regarding whether “the medical professional’s negligence proximately caused the plaintiff injury.” Butterfield v. Okubo, 831 P.2d 97, 102 (Utah 1992).

At ¶ 10.

. . . appellate courts afford broad discretion to a district court’s ruling on the admissibility of expert testimony, even in the context of a summary judgment ruling.

At ¶ 11.

According to De Adder, however, rule 702 of the Utah Rules of Evidence, which was amended in 2007, no longer demands that an expert affidavit contain “specific evidentiary facts” showing the expert’s knowledge of the standard of care . . . . Rather, she contends, rule 702 requires merely a “threshold showing” of reliability. To support her position, De Adder relies on the Utah Supreme Court’s decision in Eskelson ex rel. Eskelson v. Davis Hospital & Medical Center, 2010 UT 59, 242 P.3d 762, which addresses the amended rule 702.

At ¶ 12.

In Eskelson, the Utah Supreme Court explained that rule 702 “‘assigns to trial judges a “gatekeeper” responsibility to screen out unreliable expert testimony.’” Id. ¶ 12 (quoting Utah R. Evid. 702 advisory committee note). In its role as a gatekeeper, a trial court should employ a “degree of scrutiny . . . [that] is not so rigorous as to be satisfied only by scientific or other specialized principles or methods that are free of controversy or that meet any fixed set of criteria fashioned to test reliability” but rather should look for “only a ‘threshold showing’ of reliability.” Id. (quoting Utah R. Evid. 702(b)–(c)). De Adder asserts that Dr. Jackson’s statements that he was familiar with the standard of care and that the nurses’ breach of that standard caused De Adder’s injury were sufficient to meet this threshold requirement.

At ¶ 13.

We disagree. [The court distinguishes Eckelson.]

At ¶ 14.

. . . Both Eskelson and Butterfield establish that the proposed expert must present some factual basis to meet the threshold requirements of rule 702. De Adder has not satisfied this threshold burden with regard to the qualifications of Dr. Jackson to testify as to the applicable nursing standard of care.

At ¶ 15.

In Utah, “a practitioner of one school of medicine is [ordinarily] not competent to testify as an expert in a malpractice action against a practitioner of another school” due to the “wide variation between schools in both precepts and practices.” Dikeou v. Osborn, 881 P.2d 943, 947 (Utah Ct. App. 1994); . . . . Although Utah appellate courts have not yet addressed the application of this rule to a situation where it is proposed that a doctor testify as to the standard of care for a nurse, the underlying rationale seems to support similar treatment. Rule 702 contemplates the testimony of an expert having “knowledge, skill, experience, training, or education” on the particular subject matter on which he or she intends to opine. Utah R. Evid. 702(a). Nurses receive different training, have different licensing qualifications, and fulfill different functions in patient care than do doctors. See Sullivan v. Edward Hosp., 806 N.E.2d 645, 658–59 (Ill. 2004) . . .  see also Turner v. University of Utah Hosps., 2011 UT App 431, ¶¶ 16–17, 21, 271 P.3d 156 (observing that a doctor’s testimony about the nursing standard of care might have been inappropriate because no foundation had been laid under rule 702 to demonstrate that the physician was familiar  with the nursing standard of care but ultimately concluding that its admission was harmless), cert. granted, 280 P.3d 421 (Utah May 18, 2012) (No. 20120120); MUJI CV302 (2d. ed. 2011). We therefore conclude that a doctor’s training as a physician is not sufficient by itself to qualify him or her “to testify as an expert in a malpractice action against” a nurse. See Dikeou, 881 P.2d at 947.

At ¶ 16.

However, there is an exception to the general rule that a physician cannot testify as an expert against another provider who has a different specialty. The exception applies when “a medical expert witness brought in to testify on the applicable standard of care . . . is knowledgeable about the applicable standard of care or [where] the standard of care in the expert’s specialty is the same as the standard of care in the alleged negligent doctor’s specialty.” Id.; see also, e.g., Creekmore v. Maryview Hosp., 662 F.3d 686, 692–93 (4^th Cir. 2011) . . . . A natural corollary, however, is that where the physician proffered as an expert lacks the requisite familiarity with the nursing standard of care for a particular procedure and his or her field of expertise does not share a similar standard with the nursing field at issue, the physician’s opinions are not admissible. Pendley v. Southern Reg’l Health Sys., Inc., 704 S.E.2d 198, 203 (Ga. Ct. App. 2010) . . . .

At ¶ 17.

The Court reviews Dr. Jackson’s affidavit and determines that he did not lay an adequate foundation for his assertion that he was familiar with the standard of care applicable to nurses.  Placing particular emphasis on Dr. Jackson’s deposition testimony that  “I don’t order [the protocol]. I just order CPM,” which he acknowledges is “done under the direction of the physical therapy” by “the nurses on the floor.”.

At ¶¶ 18-21.

The District Court Did Not Otherwise Abuse Its Discretion in Precluding Dr. Jackson from Testifying as an Expert. (Procedural Issues)

De Adder nevertheless claims that the district court erred in granting summary judgment because the court “initiated its own [Utah] Rule [of Evidence] 702 examination” without a motion and in the absence of any briefing on the issue. In support of her claim, De Adder asserts that “[i]t was impossible for [her], in responding to the Motion for Summary Judgment to have predicted that the trial court would . . . unilaterally conduct its own Rule 702 examination based on the summary judgment pleadings” where IHC never “allude[d] to or mention[ed] Rule 702” in its memorandum supporting its motion for summary judgment or made  a  “separate  motion  to  strike  Dr.  Jackson’s  affidavit  or evaluate the same under Rule 702.”

At ¶ 22.

Although the best practice is for parties to identify the rule upon which a motion is based, we are not convinced that “[i]t was impossible for [De Adder]” to “predict[]” that the district court would conduct a rule 702 assessment of Dr. Jackson’s qualifications. In the introduction to its summary judgment memorandum, IHC explained that it was entitled to summary judgment because “Dr. Jackson is not qualified to testify regarding the standard of care applicable to [IHC nurses]” and without such an expert, De Adder could not succeed on her negligence claim as a matter of law. In its argument section, IHC sets forth the standard by which a medical professional’s expertise to testify about a standard of care is judged and specifically addresses why Dr. Jackson’s deposition testimony does not demonstrate that he is qualified. Thus, based on the subject matter of the summary judgment motion and IHC’s specific arguments, it was quite clear that Dr. Jackson’s qualifications as an expert were at issue. And De Adder, in fact, understood this. In her opposition to the motion for summary judgment, De Adder argued the case for Dr. Jackson’s qualification as an expert to testify as to the standard of care expected of the nurses providing CPM therapy. Further, she attached to her opposition memorandum Dr. Jackson’s verified expert report, in which he asserted his familiarity with the nurses’ standard of care. Though the parties inexplicably omitted specific reference to rule 702, both IHC’s arguments and De Adder’s response invited the district court to consider Dr. Jackson’s qualifications to render an expert opinion under the most directly pertinent authority, rule 702. We therefore conclude that the district court’s rule 702 analysis was both appropriate and entirely predictable under the circumstances.

At ¶ 23.

Furthermore, we cannot agree with De Adder’s argument that she was improperly “precluded from seeking a Rule 702 hearing in which to conduct a more detailed examination of Dr. Jackson and other witnesses to meet the burden imposed by the court.” In a motion to amend the judgment, filed after the district court’s ruling granting summary judgment to IHC, De Adder asked the court to conduct a rule 702 hearing, at which she would “present [Dr. Jackson] and have him testify.” The district court responded that such a hearing seemed both unnecessary and improper. The court reasoned that at the summary judgment stage, an expert affidavit need only contain information that indicates the expert is qualified, and because the affidavit is not subject to cross-examination, its contents are completely within the control of the proffering party and the expert, who can include any information relating to qualifications they deem pertinent. Further, the court expressed concern about holding a hearing “to take evidence” as part of a  summary judgment proceeding. The district court’s reluctance to conduct such a proceeding seems appropriate where De Adder was aware of the basis for the summary judgment motion and had the unimpeded opportunity to submit her expert’s affidavit and any other pertinent evidence. That the affidavit lacked factual support for Dr. Jackson’s purported familiarity with the nursing standard of care is a result of De Adder’s choices in crafting a response to IHC’s motion for summary judgment, and she has not persuaded us that the district court was required to conduct an evidentiary hearing to make up for deficiencies in that response. Rather, holding such a hearing under the circumstances would distort the established summary judgment process and undermine its purposes. .. .  Therefore, the court’s decision to deny De Adder’s request for an evidentiary hearing was well within its discretion.

At ¶ 24.

Jones v. Jones, 2013 UT App 174, No. 20110998-CA (July 11, 2013)

ISSUE: Constitutionality of the Grandparent Visitation Statute

Judge Voros,

Sharon Jones (Mother) appeals the trial court’s order awarding visitation with Mother’s daughter (Child) to Child’s paternal grandparents, Ellie and Tracy Jones (Grandparents). Mother claims a fundamental constitutional right in the control of Child and contends that Utah’s Grandparent Visitation Statute is not narrowly tailored to serve a compelling state interest as applied to her under the circumstances of this case. We agree and reverse.

At ¶ 1.

The Court reviews the background of this case; specifically, the child’s regular visitation with paternal grandparents after parent’s divorce, Mother’s withholding of visitation after father’s death, and the trial court’s order granting grandparent visitation rights to grandparents.

At ¶¶ 2-6.

The central issue on appeal is Mother’s challenge to the constitutionality of the Grandparent Visitation Statute, as applied under the circumstances of this case. “Constitutional challenges to statutes present questions of law, which we review for correctness.” State v. Green, 2004 UT 76, ¶ 42, 99 P.3d 820 (citation and internal quotation marks omitted). Nevertheless, “legislative enactments are presumed to be constitutional, and those who challenge a statute or ordinance as unconstitutional bear the burden of demonstrating its unconstitutionality.” Id. (citation and internal quotation marks omitted).

At ¶ 7.

As Applied to Mother, the Grandparent Visitation Statute Is Not Narrowly Tailored To Serve a Compelling State Interest.

The Grandparent Visitation Statute allows a grandparent to petition the court for grandparent–grandchild visitation over the objection of the grandchild’s parents. The statute acknowledges “a rebuttable presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests.” Utah Code Ann. § 30-5-2(2). However, the statute allows the court to override the parent’s decision when the parental presumption has been rebutted. Id. The statute identifies several factors relevant to this analysis:

[T]he court may override the parent’s decision and grant the petitioner reasonable rights of visitation if the court finds that the petitioner has rebutted the presumption based upon factors which the court considers to be relevant, such as whether:

(a) the petitioner is a fit and proper person to have visitation with the grandchild;

(b) visitation with the grandchild has been denied or unreasonably limited;

(c) the parent is unfit or incompetent;

(d) the petitioner has acted as the grandchild’s custodian or caregiver, or otherwise has had a substantial relationship with the grandchild, and the loss or cessation of that relationship is likely to cause harm to the grandchild;

(e) the petitioner’s child, who is a parent of the grandchild, has died, or has become a noncustodial parent through divorce or legal separation;

(f) the petitioner’s child, who is a parent of the grandchild, has been missing for an extended period of time; or

(g) visitation is in the best interest of the grandchild.

Id. Grandparents seeking court-ordered visitation must overcome the parental presumption by clear and convincing evidence. Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶ 28, 144 P.3d 1083. 

At ¶ 8.

A.            Because a Parent’s Right Is Fundamental, Strict Scrutiny Applies.

Mother contends on appeal that any intrusion into a parent’s constitutional liberty interest must be narrowly tailored to achieve a compelling state interest. She argues that “constitutional law requires  a  compelling  state  interest  before  visitation  may  be ordered,  and  no  fact  findings  or  trial  evidence  identify a compelling interest here.” We agree.

At ¶ 9.

The Court holds that both the United States and Utah Constitution recognize that the interest of parents in the care, custody, and control of their children is a fundamental liberty interests.

At ¶¶ 10-11.

In contrast, “[h]istorically, grandparents had no legal right of visitation.” Campbell v. Campbell, 896 P.2d 635, 642 n.15 (Utah Ct. App. 1995). . . . 

At ¶ 12.

The question before us is what level of scrutiny to apply in reviewing a statute that to some degree circumscribes a parent’s fundamental right to decide questions involving the care, custody, and control of her child. Ordinarily, “the [federal] Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.” Lawrence v. Texas, 539 U.S. 558, 593 (2003) (emphasis omitted). Similarly, our supreme court has stated that under the Due Process Clause of the Utah Constitution, a “statute that infringes upon [a parent’s] ‘fundamental’ right is subject to heightened scrutiny and is unconstitutional unless it (1) furthers a compelling state interest and (2) ‘the means adopted are narrowly tailored to achieve the basic statutory purpose.’” Jensen, 2011 UT 17, ¶ 72 (quoting Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 206 (Utah 1984)).

At ¶ 13.

The court reviews case history on the issue: In Troxel v. Granville, the [United States] Supreme Court invalidated the application of a grandparent visitation statute on the ground that it unconstitutionally infringed on the parent’s fundamental right. 530 U.S. 57, 73 (2000) (plurality opinion), but did not specifically state that strict scrutiny applies. In Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, 144 P.3d 1083, our supreme court upheld the Grandparent Visitation Statute against a federal constitutional challenge, concluding that Utah’s statute avoided the errors identified in Troxel and thus was “not unconstitutional under Troxel” either facially or as applied. Uzelac indicated that the standard of proof by which the parental presumption must be rebutted is clear and convincing evidence, which satisfies due process requirements. Id. ¶ 28.

At ¶¶ 14-15.

But the clear and convincing standard is a standard of evidentiary proof, not a level of constitutional scrutiny. It is one thing to require that “factors which the court considers to be relevant” to grandparent visitation, “such as” those listed in section 30-5-2(2), must be found by clear and convincing evidence. See Utah Code Ann. § 30-5-2(2) (LexisNexis 2007); Uzelac, 2006 UT 46, ¶ 28. It is quite another to determine that the existence of some combination of those factors justifies the state’s interference with a parent’s control of her child—although the court obviously made that determination in Uzelac.

At ¶ 16.

Since Troxel, several state courts have reviewed the constitutionality of their respective grandparent visitation statutes without considering the level of scrutiny to apply. See Moriarty v. Bradt, 827 A.2d 203, 218–19 (N.J. 2003) (collecting cases). Instead, they have “simply compared the structure of their statutes to the one invalidated in Troxel to assess constitutionality.” Id. at 219; see also, e.g., Williams v. Williams, 2002-NMCA-074, ¶¶ 10–29, 50 P.3d 194. Similarly, our supreme court in Uzelac addressed whether the statute was constitutional “under Troxel.” See 2006 UT 46, ¶ 35. It did not address the level of constitutional scrutiny applicable to the Grandparent Visitation Statute, presumably because under any level  of  scrutiny,  the  court  would  not  have  held  the  statute unconstitutional facially or as applied to the facts of that case.

At ¶ 18.

However, Uzelac’s declaration that the Grandparent Visitation Statute is constitutional on its face does not dispose of Mother’s challenge to the statute as applied to her. Furthermore, unlike Troxel and Uzelac, this case does not fall comfortably on either end of the constitutional spectrum. Thus, to address Mother’s constitutional challenge, we must decide the appropriate level of scrutiny to apply.

At ¶ 20.

Our supreme court has held that under the Utah Constitution, “the proponent of legislation infringing parental rights must show (1) a compelling state interest in the result to be achieved and (2) that the means adopted are narrowly tailored to achieve the basic statutory purpose.” Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 206 (Utah 1984) (citation and internal quotation marks omitted). This holding has never been applied in the context of grandparent visitation. . . . .

At ¶ 22.

The Court holds that Campbell v. Campbell, 896 P.2d 635, 644 (Utah Ct. App. 1995), a case in which the court applied rational basis scrutiny to the Grandparent Visitation Statute, was effectively overruled by Troxel.

At ¶ 23.

The Grandparent Visitation Statute qualifies as “legislation infringing parental rights” in a substantial, not merely incidental, way, because it allows the state to override a parent’s decision regarding the care, custody, and control of her child. See Wells, 681 P.2d at 206; see also Washington v. Glucksberg, 521 U.S. 702, 767 n.8 (1997)… . Furthermore, as noted above, the application of strict scrutiny is consistent with the majority of other jurisdictions to address the issue under the federal constitution. We agree with the reasoning of those cases and thus conclude that strict scrutiny review applies to Mother’s claim that the statute, as applied, violated her rights under the Utah and United States Constitutions.

At ¶ 24.

B.        The Statute As Applied to the Facts of This Case Does Not Withstand Strict Scrutiny.

As noted above, a “statute that infringes upon [a parent’s] ‘fundamental’  right  is  subject  to  heightened  scrutiny  and  is unconstitutional unless it (1) furthers a compelling state interest and (2) ‘the means adopted are narrowly tailored to achieve the basic statutory purpose.’” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 72, 250 P.3d 465 (quoting Wells, 681 P.2d at 206). The Grandparent Visitation Statute as applied to the facts of this case satisfies neither element of this test.

At ¶ 25.

Here, Grandparents have not demonstrated that the state’s interest in ordering visitation is compelling. The classic justification for state intervention in the parent–child relationship is to protect “a child who is an abused child, neglected child, or dependent child,” see Utah Code Ann. § 78A-6-103(3) (LexisNexis 2012). And where the parent–child bond is to be severed altogether, the parent “is entitled to a showing of unfitness, abandonment, or substantial neglect before her parental rights are terminated.” In re J.P., 648 P.2d 1364, 1377 (Utah 1982).

At ¶ 26.

In the context of grandparent visitation, many states hold that a compelling state interest is established only where denial of visitation would significantly harm the grandchild. See, e.g., Roth v. Weston, 789 A.2d 431, 445 (Conn. 2002)… .

At ¶ 27.

On the other hand, some states appear to interpret Troxel as requiring the conclusion that a showing of harm is unnecessary. See, e.g., In re Adoption of C.A., 137 P.3d 318, 325–26 (Colo. 2006) (en banc). However, this interpretation does not square with Troxel and is inconsistent with our supreme court’s reading of Troxel. . . . .

At ¶ 28.

Our  Grandparent  Visitation  Statute  does  not  require  a showing of harm to the grandchild. Rather, harm to the grandchild caused by termination of a substantial relationship with the grandparent is listed as one of seven factors the court may “consider[] to be relevant” in determining whether the grandparent has rebutted the presumption that “a parent’s decision with regard to grandparent visitation is in the grandchild’s best interest” . . . Moreover, as our supreme court observed in Uzelac, the statute “does not provide a district court with much guidance regarding how the factors ought to be weighed or applied.” 2006 UT 46, ¶ 36 n.7.

At ¶ 29.

Here, Mother contends that although the trial court ruled that denial of visitation “has likely” harmed Child, the court “made no fact findings in support of that conclusion, for the record was barren of any such evidence.” . . . .

At ¶ 30. 

The Court reviews the evidence supporting a finding of harm to the child and finds that “[i]n sum, the evidence that Grandparents had a substantial relationship with Child and that Child would be harmed by denied visitation was not compelling.”

At ¶ 32.

Other statutory factors are either unchallenged here or supported by clear and convincing evidence: Father died, Grandparents and Mother are fit, Mother unreasonably limited Grandparents’ visitation, and visitation is in Child’s best interest. Consequently, the only factor distinguishing this case from any other parent–grandparent visitation litigation between fit parties is the fact that Father is deceased. Indeed, the present record does not even demonstrate Child’s “understandable sadness resulting from losing a family member and . . . missing [her] grandparents” found insufficient in In re Scheller, 325 S.W.3d 640, 644 (Tex. 2010) . . . .  No one in this case has claimed that, without more, Father’s death justifies compelled visitation under any standard, much less the compelling state interest standard. We therefore conclude that the facts of this case are not “sufficient . . . to justify state interference.” See Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶ 38, 144 P.3d 1083.

At ¶ 33.

Even if Grandparents had demonstrated that the state’s interest in requiring visitation here was compelling, they have not shown that the visitation ordered in this case was narrowly tailored to achieve that interest. Where a statute infringes on a fundamental right, the means adopted must be “narrowly tailored to achieve the basic statutory purpose.” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 72, 250 P.3d 465 (citation and internal quotation marks omitted).

At ¶ 34.

As of June 2012, Grandparents are entitled under the trial court’s order to visitation on alternating weekends, one of which is an overnight visit. This level of visitation is well below the minimum statutory schedule for a parent. See Utah Code Ann. § 30-3-35 (LexisNexis Supp. 2012); id. § 30-3-35.5(3)(f). But it is more substantial than the visitation many grandparents enjoy, especially those who, like Grandparents here, live in a different city from their grandchild.

At ¶ 35.

In sum, we conclude that the Grandparent Visitation Statute is unconstitutional under the Utah and United States Constitutions as applied to Mother in this case. We need not reach any other claims presented in this appeal. The judgment of the trial court is accordingly reversed.

At ¶ 36.

Judge Davis (dissenting),

I respectfully dissent from the majority opinion because I believe it is inconsistent with our supreme court’s holding in Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, 144 P.3d 1083. Accordingly, I would consider Mother’s other arguments on appeal and ultimately affirm the trial court’s award of grandparent visitation.

At ¶ 37.

Judge Davis explains.

At ¶¶ 38-58.