Boy Scouts of America v. Dale revisited

Earlier this week the Boy Scouts of America voted to end its ban on gay scout leaders. As an Eagle Scout myself—thanks to my angel mother—this was very welcome news. And while I applaud the leadership of Robert Gates, president of the BSA, it made me wonder about one of my least favorite U.S. Supreme Court cases: BSA v. Dale.

About fifteen years ago in New Jersey, a Boy Scout troop dismissed an assistant scoutmaster after learning that he was “an avowed homosexual and gay rights activist.” Dale, the erstwhile assistant scoutmaster, sued under New Jersey’s statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.

The lawsuit made its way up to the United States Supreme Court. The Court decided that the First Amendment’s implicit right of expressive association prevented Dale’s lawsuit.

The Court recognized that the right of expressive association is not an absolute right. Therefore, the Court had to examine the BSA’s viewpoints to determine whether the forced inclusion of Dale would impermissibly frustrate those viewpoints. The result of all this is that the BSA had to argue that its viewpoints were explicitly inconsistent with homosexuals.

Does it seem weird already? Cause it gets weirder. To prove that the BSA’s viewpoints were inherently in opposition to homosexuals, it turned to the Scout Oath and the Scout law.

The Scout Oath:

On my honor I will do my best
To do my duty to God and my county
And obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
Mentally awake, and morally straight.

The Scout Law:

A Scout is trustworthy, loyal, helpful, friendly,
courteous, kind, obedient, cheerful, thrifty,
brave, clean and reverent.

Did you catch it? The part where it says that Boy Scouts are inherently opposed to have homosexuals in their ranks? I didn’t either, but that didn’t stop the BSA.

They argued that “morally straight” meant sexually straight. That, of course, is crazy. I was active in scouting until 1998, right before BSA v. Dale. I memorized the Scout Oath and Scout Law. At no point in time did anyone ever make the connection between “morally straight” and sexual orientation. This seems more like a bad pun than a legal argument.

But it gets worse. The BSA also argued that “clean” in the Scout Law meant that homosexuals could not be Boy Scouts. What? Clean? When I was a scout this referred almost exclusively to hygiene and tidiness. How does that apply to homosexuals?

So, as crazy and offensive as this argument was, the U.S. Supreme Court bought it. Understandably, the Court thought it should defer to a group when the group is explaining and defining its fundamental views.

Still, I have problem with the amount of deference. Just look at the rest of the Scout Oath and Law. Applying the same logic, it would also ban the following types of people:

1. The unhelpful
2. The physically weak
3. The sleepy
4. The untrustworthy
5. The unloyal
6. The unfriendly
7. Rude people
8. Mean people
9. Sad people
10. The financially irresponsible
11. The cowardly
12. The dirty
13. Loud people

Some of these kinds of people I would understand wanting to ban. (Sleepy people are the worst). But the physically weak? That’s seriously disturbing. Still, the Supreme Court took the BSA at their word that they could not allow homosexuals in their organization because they were not “morally straight” and were not “clean.”

So, now that the policy has changed, will the BSA change the Oath and Law? I don’t think they should. The twisted definitions of those terms seemed more like a pretext than anything else. Rather, I think the U.S. Supreme Court should reassess how much deference it gives to organizations that claim the right to discriminate. 

Utah's secret ERA

Alice Paul proposed the ERA in 1923.

One of my own personal heroes, Alice Paul (pictured above), first proposed an amendment to the United States Constitution guaranteeing equal rights to all people without regard to their sex in 1923. It took another five decades before the Equal Rights Amendment (ERA) was introduced to Congress in 1972. The text was quite simple. It read:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

It passed through the House and the Senate and then went on for ratifications from the states. That's where it died. In Utah, the John Birch Society successfully spearheaded efforts against the ERA. Utah’s Legislature refused to ratify the ERA, and Utah became a hotbed of anti-ERA efforts.

The grand irony is that Utah already had an ERA-like provision in its state constitution. Utah’s ERA was an important part of Utah's original constitution that was adopted in 1896, when Utah first became a state. It differs from the failed federal ERA in that it goes far beyond legal equality and guarantees forms of social and civil equality. It reads:

"The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges."

Wow. The framers of the Utah Constitution were not messing around.

In 1970, however, it was pretty embarrassing for Utah to have such a radical constitutional amendment while being a center for opposition to a more moderate federal measure. According to Utah History To Go:

"[T]he Utah Supreme Court never invalidated a statute based on [Utah’s] ERA. The court's understanding of the state ERA was that it served a narrow political purpose in 1896. Court rulings in family law cases in the 1970s emphasized traditional husband-wife relations and biological factors and reduced the state ERA to a nullity."

But the story isn’t over yet. The 70s were heady times. That same decade saw the rise of originalism and textualism as methods of constitutional interpretation. Many see this is as a direct response to Roe v. Wade, decided in 1973. Textualism in particular has much to recommend it. The idea is that if you want to know what a constitutional provision means, you simply read it and apply the plain meaning of the text. One of the benefits of textualism is that it makes it much harder to simply ignore or nullify a problematic constitutional provision.

In 2006, the Utah Supreme Court set out what is currently the correct approach to interpreting the Utah Constitution. It wrote:

"The interpretation of the protections afforded by the Utah Constitution appropriately commences with a review of the constitutional text.  Grand County v. Emery County, 2002 UT 57, ¶ 29, 52 P.3d 1148 (explaining that 'our starting point in interpreting a constitutional provision is the textual language itself'). While we first look to the text's plain meaning, State v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218, we recognize that constitutional 'language is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Dennis v. United States, 341 U.S. 494, 523, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). We thus inform our textual interpretation with historical evidence of the framers' intent.  State v. Betensen, 14 Utah 2d 121, 378 P.2d 669, 669-70 (1963) (“[I]t is proper to look not only to the [constitution] itself, but to the background out of which it arose and its practical application in order to determine the [framers'] intent.”); see also Univ. of Utah v. Bd. of Exam'rs, 4 Utah 2d 408, 295 P.2d 348, 361-62 (1956) (“[I]f the words are ambiguous or their meaning not clear, then it is proper to look outside the instrument itself to ascertain what the framers meant by the language used.”). (American Bush v. City of South Salt Lake, ¶ 10). 

So, while the Utah Supreme Court in the 70s was able to ignore Utah’s ERA, it is no longer able to do so. The rise of textualism and originalism as adopted in American Bush means that Utah appellate courts will first need to look to the text. And it seems to me that the text is pretty unambiguous.

There are unanswered questions, however. For instance, what does it mean to have equal religious rights? And what does this mean for Utah’s transgender citizens? Hopefully in the near the future, the Utah Supreme Court will answer some of these questions and render Utah’s secret ERA more than a nullity.

Objection! Withdrawn.

When movies and television portray slick lawyers, they often have a scene in which the lawyer makes a clearly outrageous statement and then withdraws it immediately when challenged. One of the more ridiculous versions of this meme is from the television show, Community, shown above. The idea is that a scheming lawyer will be able to taint the minds of the jury with an inflammatory statement. If challenged, the lawyer can simply shrug it off. The judge may instruct the jury to ignore the statement, but the damage has been done and the seed has been planted in the jurors’ minds.

Well, as it happens, lawyers actually try this in real life. Last week, the Utah Court of Appeals issued an opinion in State v. Akok that deals with this kind of situation. Mr. Akok was on trial for rape, along with a codefendant who was being charged with other related crimes. At the very last moment of the trial, just before the jury left to deliberate, the prosecutor said this:

“They took advantage of a very vulnerable victim. Don’t let them take advantage of it again. Thank you.” ¶ 14.

This of course, is not nearly as inflammatory as some television lawyers, but it’s still very improper. The Court of Appeals had no trouble deciding that “the prosecutor’s statement was improper and called the jurors’ attention to matters they were not justified in considering in reaching their verdict.” ¶ 16.

The defense attorney moved for a mistrial, and the court denied it. Then the defense attorney asked for a curative instruction to let the jury know that they should ignore the prosecutor’s final statement. Of course, the prosecutor did not put up a fight. People who drop bombs rarely concern themselves with the clean up.

The judge, however, refused to give a specific instruction about the improper statement. Instead, the judge reminded the jury of the general instructions that they already had. ¶ 9. But if the general jury instructions are sufficient to cure prosecutorial misconduct, then prosecutors could essentially say whatever they want. If there is an objection, they could just shrug and say, “Well the jury should know not to listen to that.”

Fortunately, the Court of Appeals determined that this was an error that hurt Mr. Akok’s defense and reversed. “[W]hen the prosecutor’s statement is considered in conjunction with the conflicting evidence of Defendant’s guilt, defense counsel’s inability to address the prosecutor’s improper statement, and the court’s nonspecific curative admonition, our confidence in the verdict is undermined.” ¶ 30. Mr. Akok will now have a new trial, and hopefully Utah lawyers will be less inclined to attempt this trick in the future.

The Worst Possible Sentence

David Dominguez, Executive Director of Stride On.

David Dominguez, Executive Director of Stride On.

The recent Utah Supreme Court decision in State v. Houston, which upheld a sentence of life in prison without parole for a juvenile who murdered a young woman, did not seem to get a lot of attention despite the implications that it has for our society. Because I was not done thinking about it, I decided to interview Professor David Dominguez, who recently retired from the BYU Law School where he taught criminal law and community lawyering.

Professor Dominguez’s community lawyering class at BYU was incredibly popular, and I had the privilege of taking it. The goal of the class was to work closely with children in pre-trial detention, detention staff, and parents to empower the children to represent their own interests in the justice system and in life. For many BYU law students it was a life-changing experience. Professor Dominguez retired from BYU to pursue this work full time as the executive director of Stride On, an organization that teaches law and life skills in the juvenile jailhouse.

Because of his extensive work with juveniles, I asked him what he thought about the decision in State v. Houston.

“To me, they completely flubbed it,” he said. “They told Houston, essentially, ‘You will die in slow motion. We’re executing you because we’re giving you no chance whatsoever to live a normal life again.’”

Dominguez explained that sentencing a child to life in prison without parole is much worse then sentencing an adult to life in prison without parole. “It’s the worst possible sentence because nobody but a minor can serve the whole adult life-in-prison sentence and then serve more time,” he said. “To punish a kid even more harshly than we would an adult for the same crime, to me that is cruel and unusual punishment.”

The majority of the Utah Supreme Court, however, reasoned that the sentence did not violate the Eighth Amendment. To their credit, however, they did express their hope that life in prison without parole for juvenile offenders would be rare. ¶ 67. Their unease is warranted considering that the law they were upholding did not just affect Houston, but our society as a whole.

“Even though we know it’s obvious that the defendant is on trial, what’s not so obvious is that the law is on trial. And because the law represents the people, it means we are on trial, too,” Dominguez said. “Is this law fair? I think most people will look at this and say, ‘This is simply not fair.’”

For his part, Dominguez hopes that his efforts with Stride On can help to prevent the circumstances that led to the decision in State v. Houston. By getting to juvenile offenders early and incorporating many different key players from the community, he hopes to provide them with better life skills and ultimately a better path. “The word is starting to spread in the community that technology and these key players are going to be able to help in ways that they never helped before,” he said. “The parents and the kids are equipped and empowered to offer an alternative [to detention].”

It is too late for Houston and many other juveniles. However, Dominguez is always looking for lawyer and non-lawyer volunteers who are willing to pitch in and make our society more just. Go to for more information.

Meeting with Open Legal Services

The other day I had the pleasure of meeting the good people at Open Legal Services, a nonprofit Utah law firm that provides income-based legal services. It was fun to meet them because we have the same goal in mind, increasing access to the law. They are also at the forefront of a movement in the legal market that has garnered them national attention.

Open Legal Services does family law and criminal law, usually on the trial level. At Thompson Appeals, I focus my practice on civil and criminal appeals. So it was exciting to meet fellow travelers working to provide affordable legal services in Utah.

Open Legal Services describes their income-based pricing model as a revolution, and I think they might be right. The legal field, in general, seems ripe for a market disruption. High levels of overhead are tolerated, and, in some cases, expected. The income-based model, or the low-bono model, has the potential to disrupt some of these expectations and hopefully provide better access to justice in the process.

Low overhead. High professionalism. That’s idea behind Thompson Appeals. It was great to meet with Open Legal Services and get to know some of the pioneers in this new legal market.

Pop Culture at the Supreme Court

In a bit of levity last week, Justice Kagan quoted Dr. Suess in Yates v. United States. In her dissent she wrote: “A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).” The opinion was well timed considering that March 2 is Dr. Seuss’s birthday. (I didn’t know until my kids came home and told me that I forgot to get them Dr. Seuss costumes. Apparently this is something schools do these days.) Anyhow, it got me wondering about other times the United States Supreme Court had dropped its habitual formality and made reference to popular culture. The following is an incomplete list. Feel free to leave a comment with an addition.

1. Lone Ranger

In his dissent in Kyles v. Whitley, Justice Scalia used the Lone Ranger as an example of why seeing a suspect’s face should be enough to identify him or her. “[I]t is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking ‘You admit that you saw only the killer's face?’ will be laughed out of the courtroom.”

2. Superman

In Bertman v. J.A. Kirsch Co., Justice Black dissented because he thought the majority had unrealistic expectations about an attorney’s ability to know that the State had filed a last-minute appeal in his client’s case.

“I am aware of the argument that an able, alert, ever-diligent lawyer could have, had he tried hard enough, discovered that the Government had appealed—even in the closing hours of the sixtieth day. I do not doubt that had Bertman's counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse, or had he been a lawyer with no clients but Bertman he could have spent the sixtieth day hovering at the clerk's office to see whether the Government would file a notice of appeal. But Bertman's counsel (so far as the record shows) is not Superman, nor should the law expect him to be.”

3. Cinderella, Snow White, and Lord of the Flies

Most of the pop culture references come in dissents where the justices write in the first-person and generally have a bit more liberty. In Brown v. Entertainment Merchants Ass’n, however, the majority used the Brothers Grimm, The Odyssey, Dante’s Inferno, and the Lord of the Flies to illustrate how much violent imagery we present to children.

"Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella's evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

"High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187-189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208-209 (1997 ed.).”

4. Casablanca

In Rapanos v. United States, a case about the Clean Water Act, the Supreme Court dropped a footnote about Casablanca.

“We are indebted to [the appeals] court for a famous exchange, from the movie Casablanca (Warner Bros. 1942), which portrays most vividly the absurdity of finding the desert filled with waters:

‘“Captain Renault [Claude Rains]: ‘What in heaven's name brought you to Casablanca?’

‘“Rick [Humphrey Bogart]: ‘My health. I came to Casablanca for the waters.’

‘“Captain Renault: ‘The waters? What waters? We're in the desert.’

‘“Rick: ‘I was misinformed.”’ 408 F.3d, at 1117.”

Sentencing children to death-in-prison

The Utah Supreme Court ruled this week that it was constitutional to sentence a child to life in prison without parole. The majority’s reasoning in State v. Houston, 2015 UT 36, is sound, but I still can’t help but feel that the result is incorrect.

The story of Robert Cameron Houston is as heartbreaking as it is violent and horrifying. He was born with a deformed ear that left him partially deaf and made it hard for him to learn to talk. He was bullied because of his ear and his weight, and his father abused him physically and verbally. When he was only eight years old, Robert tried to commit suicide for the first time. At age twelve, his brother’s friend sexually abused him for several months. ¶ 5.

Then, at age fourteen, a shift occurred in Robert’s life. Instead of being the one who was bullied, abused, and raped, he became the aggressor. He attempted to rape his stepsister. The next year he attempted to rape his aunt. He pled guilty in both cases and was placed in a treatment facility for juvenile sex offenders, where he attempted to rape a staff worker. ¶ 6.

In 2006, when Robert was seventeen years old, a staff worker at the treatment center broke protocol to give him a ride the independent living home where he was staying. When they got inside, Robert raped and killed her. The details are highly disturbing, and the Utah Supreme Court does not flinch in its summary of the events. ¶¶ 8–9.

After reading the background section of the opinion I was struck with two seemingly contradictory conclusions: Robert was a monster, but he was also a child. Part of him was able to commit a brutal rape and murder, but another part of him seems to be genuinely horrified by the screaming of his victim.

The question I’m left with is, what do we do when a child is so dangerous that we can’t let him be free?

The majority’s opinion carefully analyzes all of Robert’s constitutional challenges and other claims. There is also an excellent examination of rule 22(e) of the Utah Rules of Criminal Procedure, which states that the “court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.” ¶¶ 18–28The part of the opinion that gives me pause, however, is the determination that sentencing a juvenile to life in prison without parole is not cruel and unusual and does not violate the Utah or federal constitutions. ¶ 67. Justice Durham wrote a fantastic dissent in which she stated, “In my view, the diminished culpability of juveniles, combined with the exceeding harshness and irreversible nature of [life in prison without parole], makes this sentence unconstitutionally disproportionate and inconsistent with the ‘evolving standards of decency that mark the progress of a maturing society.’” ¶ 213 quoting Trop v. Dulles, 365 U.S. 86, 101 (1958).

This is still an unsettled area of constitutional law, and the majority does a fine job describing the current contours. But taking a longer view of this, I think the reasoning in Justice Durham’s dissent will eventually win the day. She makes the following lucid points, to which I will add my thoughts:

1. Children’s brains are not fully developed. ¶ 259.

The U.S. Supreme Court has recognized the overwhelming scientific evidence that children often make horrible decisions because their brains are not fully developed. I find it ironic that one of the justifications for trying children as adults is that their crimes were so serious. When a child commits a serious crime it is only further evidence that the child’s reasoning capabilities are diminished. The more heinous the crime, the more evidence that the child’s mind in underdeveloped. In the case of Robert, the senselessness of the violence he committed is further evidence that he was operating with the mind of a child. Sentencing him in the same way that we sentence an adult is disproportionate.

2. Children are more vulnerable to negative influences. ¶ 261.

I think this is particularly true in Robert’s case. Through the rape and abuse that he suffered, his young mind was molded into seeing the world from that perspective. While his crimes are abhorrent and unjustifiable under any circumstances, it is possible to understand why he felt the compulsion to rape and murder. The fact that his young mind was clearly exhibiting the negative influences in his life is further evidence that his sentence was disproportionate.

3. A child’s character is less fixed than an adult. ¶ 262.

Children still have time to change. Part of what is wonderful about children is their vast potential and the hopes that we have for them. This, however, brings me back to my original question, what do we do when a child is so dangerous that we can’t let them be free? What happens when we don’t have any hope that a child can change?

I don’t know what the answer is, but it certainly isn’t life in prison without parole. When we, as a society do this, we are stating that we are absolutely confident that the child will never be able to change. But if we are so certain that the child will never change, then why don’t we just execute the child? Life in prison without parole is, in effect, death by incarceration. Bryan Stevenson, the author of Just Mercy and founder of the Equal Justice Initiative, has referred to it as a death-in-prison sentence.

I don’t think anyone can be that confident, even when the crimes are as horrific and frightening as the rape and murder that Robert committed. So, while I understand and appreciate the reasoning of the majority in State v. Houston, I think Justice Durham makes the better argument. This case makes my heart break—for Robert, for his victim, and for our society that has not yet learned how to properly address these kinds of tragedies.

Woman sues herself ... and it makes perfect sense.

The recent Utah Court of Appeals opinion in Bagley and Estate of Vom Baur v. Bagley, 2015 UT App 33, has garnered national media attention.  Barbara Bagley and the estate of her late husband are attempting to sue Barbara Bagley. It’s not a coincidence. It’s the same person. She’s suing herself.

And with that one seemingly important fact, the minds of journalists and legal observers across the country were completely and irrevocably blown. Editors in newsrooms immediately started churning out pun-based headlines like a dad trying to charm a waitress at a Denny’s.  So far, I think Fox News wins the race to the bottom with their headline: “Suit yourself: Utah court lets woman sue herself over fatal wreck.” When you start the headline with a stupid joke and end it with “fatal wreck,” you’re doing it wrong. Stay classy Fox News.

This case, however, is not as mind blowing as it seems. It really comes down to the plain meaning of the relevant statutes.

To begin with, there is absolutely nothing unusual about a person or a company suing on another person’s behalf. It happens all the time. Insurance companies often require in their contracts that they can bring a claim or defend against a claim on the insured person’s behalf. This results in many cases that appear to be neighbors suing neighbors, friends suing friends, and family members suing family members. But that’s not what’s happening. It’s the insurance company suing the neighbors, friends, and family members, or vice versa.

The defendant “Barbara Bagley” in this case is not, in reality, Barbara Bagley. The defendant is really her insurance company. ¶ 2. The real Barbara paid the insurance company so that if she made a mistake while driving, the insurance company would pay for the harm she caused. The insurance company, however, does not want to pay for her negligence if it doesn’t have to, so it is defending against the claim under her name. She likely has no say in the matter.

A better way to think about the situation is that Bagley’s husband is suing her insurance company for her negligent driving. Bagley is also suing the insurance company, but that makes sense, too. She paid the insurance company so that if she caused an accident, the insurance company would pay the costs. If the insurance company doesn’t like that she was indirectly the victim of her own negligence, it could have contracted around it. On top of that, the Court of Appeals was not asked to consider whether Bagley’s claims were barred by comparative negligence. ¶ 7 n.1.

Despite the drummed up headlines, this case really comes down to a very straightforward reading of Utah statutes. Utah’s wrongful-death statute states that “when the death of a person is caused by the wrongful act of another, his heirs . . .  may maintain an action for damages against the person causing the death.” Utah Code § 78B-3-106(1).  The deceased husband is the person and his death was caused by the negligent act “of another” person—his wife. Therefore, the deceased husband’s heirs and representatives can sue for wrongful death. Additionally, Utah’s survival-action statute provides that “the personal representatives or the heirs of the person who died . . . [have] a cause of action against the wrongdoer.” Utah Code § 78B-3-107. Again, the husband died. The wife was allegedly the wrongdoer. Therefore, the heir and representative, the wife, has a cause of action against the insurance company that is defending under her name. The Court of Appeals did a fantastic job interpreting the language of the statutes. ¶¶ 11–16. After reading it, I find it difficult to imagine a different result.

In a final Hail Mary, the insurance company tried to argue that applying a plain reading of these statutes would be contrary to “’basic notions of fairness and decency.’” ¶ 17. I’m sure to insurance companies, it often seems indecent and unfair when they have to pay on a claim. But those are the risks. If you don’t want to pay for other people’s negligence, don’t take their premiums.

So, while it is admittedly interesting that a woman is suing herself, the legal issues are pretty straightforward. It’s also important to remember that behind the clever headlines, there is a woman who has lost her husband in a horrible accident and is now embroiled in a labyrinthine legal proceeding.  I hope that the Court of Appeals has been able to settle some of the legal issues for her and that this matter may be resolved as quickly as possible. 

The Facts on Appeal: Faucheaux v. Provo City

Most people are surprised to learn that on appeal, the court is rarely interested in the truth about what actually happened in a case. This is because, for the most part, the facts are for the jury or the trial court to sort out. If an appellate court starts reweighing the evidence, it runs the risk of depriving a person of a fair trial or a jury trial. Instead, appellate courts focus on the law. In fact, most appellate opinions will tell you explicitly that the court is intentionally making huge assumptions about the facts.

Faucheaux v. Provo City, 2015 UT App 3, is a good example of what I’m talking about. It’s a case about a man who called the police because he was worried that his wife was suicidal. According to the husband, the police arrived, ignored several obvious signs of overdose, and then tucked the wife into bed. According to the husband, the police told him to stay away, refused to call for EMTs, and told him not to call the police again. The wife died that night. ¶¶ 2–9. The husband argued that because the police took control of the situation, they owed a duty to make sure the wife was not overdosing.

Of course, Provo City had a different account of the facts. It didn’t matter, though, because as the Court of Appeals explained, “On an appeal from a summary judgment, we recite the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” n.3. Provo City moved for summary judgment, so the court assumed that the husband’s story was true and interpreted the law from there. An appellate court isn’t in the business of determining if an assertion of fact is true. And it’s not equipped to decide if an inference is unfair. The appellate court just wants to settle the facts so it can get to its real work—interpreting the law.

This is important for clients, journalists, and legal observers to remember. The background section of an appellate opinion does not reflect reality, and it is not intended to. It’s also important for lawyers to remember that the facts are almost never in dispute during oral argument. For example, during the oral arguments for Faucheaux v. Provo City, there was the following exchange:

Attorney: That’s [the husband’s] representation. That’s certainly not what the police officer’s affidavit says.

Judge: Right. But aren’t we here on summary judgment?

Attorney: We are, your honor.

Judge: So don’t we have to accept those facts and all the inferences in favor of them?

Attorney: No. I don’t think so.

Oral argument 20:00–20:50 

The judge’s question, of course, was rhetorical, and the attorney’s answer was incorrect.

It’s a strange concept that even judges forget sometimes. For example, in McPherson v. McPherson, 2011 UT App 382, the Utah Court of Appeals considered whether the trial court erred by not using the ex-husband’s net income to calculate his alimony payments. ¶ 13. To settle the facts, the Court of Appeals picked a number it found in the record, $3,074.57 a month, and used that to analyze the relevant legal issues. ¶ 15. The Court of Appeals made it clear in a footnote that it was just using the number for the purposes of its decision, not as a factual determination. ¶ 15 n.4.  On remand, however, the trial court felt it was bound to the $3,074.57 figure because “the appellate court seemingly found within the record sufficient evidence to find husband’s net income . . . .” McPherson v. McPherson, 2013 UT App 302, ¶ 4.

On appeal for the second time, the Court of Appeals explained that it “in no way meant to tie the trial court’s hands in considering the best evidence available to it (or the effect of a lack of evidence, for that matter) in calculating an appropriate alimony award.” ¶ 7.

So, it may seem strange, but appellate courts are rarely concerned with the truth. Instead, they are focused on the law. If a question of fact does arise on appeal, the appeals court will often remand to the trial court for fact finding. The appellate courts follow the ancient rule: Da mihi factum, dabo tibi ius—Give me the facts, I’ll give you the law. Keeping this in mind throughout the appellate process will save you a lot of frustration. 

In Faucheaux v. Provo, the Court of Appeals determined that, based on the assumed facts, the police officers did have a duty to take care of the wife. The case was then remanded to the trial court for further proceedings. ¶ 37. 

Utah's Powerful Establishment Clause

The Utah Supreme Court decided an interesting case earlier this month about religious expression under the Utah Constitution. The full story behind Summum v. Pleasant Grove City, 2015 UT 31, actually starts with Cecil B. DeMille’s epic film The Ten Commandments. To promote the 1956 film, DeMille teamed up the Fraternal Order of the Eagles and coordinated the placement of Ten Commandments monuments in public parks across America. Years after the film promotion was done, the Eagles continued to give out Ten Commandments monuments as a way to combat juvenile delinquency. See 129 S.Ct. 1125, 1140 (2009). It makes sense because nothing keeps the kids off drugs like a monument.

In 1971, the local chapter of the Eagles donated a Ten Commandments monument to Pleasant Grove City. ¶ 2. Four years later, a new religion, Summum, was born in Utah—and by “born” I mean incorporated as a 501(c)(3) tax-exempt organization. Summum thinks that the Ten Commandments are a “useful guide,” but that their Seven Aphorisms are the real deal. So they wanted to put a Seven Aphorisms monument next to the Ten Commandments monument in Pleasant Grove. Pleasant Grove said no way. They went back and forth for a while and eventually went to court. The case made its way to the U.S. Supreme Court in 2009. In Pleasant Grove v. Summum, 129 S.Ct. 1125 (2009), Summum argued that because Pleasant Grove had accepted the Ten Commandments monument and rejected theirs, Pleasant Grove had restricted their free speech in violation of the federal constitution. The U.S. Supreme Court found that Pleasant Grove had not violated Summum’s right to free speech because the Ten Commandments monument was government speech, not a public forum. 1138. The U.S. Supreme Court didn’t decide whether the Ten Commandments monument itself violated the federal establishment clause, but Justices Scalia and Thomas argued in their concurrence that it did not. 1139-1140.

But Summum wasn’t done. They decided to make another effort at getting the Seven Aphorisms in the Pleasant Grove park. (It’s funny that Pleasant Grove, population 35,000, has become the focus of this religious expression debate. I guess if you can make it in Pleasant Grove, you can make it anywhere.) Summum brought a state claim under the Utah Constitution. Utah’s establishment clause is much more specific than the federal establishment clause. It reads, in part: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.” Utah Const. art. 1, sec. 4.

The Utah Supreme Court declined to decide whether the Ten Commandments monument violated the Utah Constitution. ¶ 1. Instead, it focused on Summum’s request for adding a Seven Aphorisms monument. The Utah Supreme Court held:

"Assuming that the Ten Commandments monument amounts to religious exercise or instruction, requiring Pleasant Grove to erect a second religious monument would not render the allocation of public property and money to the two monuments neutral. The citizens of Pleasant Grove, and Utah in general, undoubtedly espouse a broad variety of religious views, including adherence to one of multiple religious denominations, agnosticism, or atheism. Displaying monuments that communicate the beliefs of only two of these viewpoints would not amount to an impartial distribution of public property among the spectrum of religious views held by Utah citizens. And because there is a finite amount of space in Pioneer Park, allowing all interested groups to install their own religious or antireligious monuments in the park would be unworkable." ¶ 11.

So if two monuments would fail to neutrally reflect the pluralism of Pleasant Grove and therefore violate the Utah Constitution, then wouldn’t one monument be even worse? The question that the Utah Supreme Court left intentionally unanswered is, does Utah’s establishment clause go further than the federal establishment clause in prohibiting religious monuments in public parks? It looks like it does. Pleasant Grove’s Ten Commandments monument might violate the Utah Constitution even though it might not violate the U.S. Constitution. It's an interesting question, but one that the Utah Supreme Court will have to answer on a different day. For now, Summum can’t have its monument in the Pleasant Grove park.


Why I'm Doing What I'm Doing

Since I started Thompson Appeals, I have found that some clients are confused about why I’m doing what I’m doing. I provide a full range of appellate services geared toward low-income and middle-income clients in Utah. To do this effectively, I usually charge a rate that is much lower than the standard rate. To the skeptic who’s wondering what I’m getting out of it, let me explain.

I spent the last year clerking at the Utah Court of Appeals. When I say I was a clerk, people often think that I was a clerk in the sense of the movie Clerks. Clerking for a court, however, is much more like being an assistant for a judge. Based on the judge’s guidance, you get to write the first draft of the opinions. You also get to read a lot of briefs and see a lot of cases move through the appellate process.

Doing this, I couldn’t help but notice that there was a wide range in the quality of representation. If the clients were indigent, they could often get help from Utah Legal Services or from the Legal Defender Association, both of which have a lot of experience and do a consistently good job representing their clients on appeal. If the clients were wealthy, they could afford top-tier appellate representation.  Many of the clients in the middle, however, were braving the appellate courts without an attorney who understood the appeals process or without an attorney at all.

To put it in the cold, hard terms of American capitalism, I saw an underserved demographic and decided to make that my niche in the marketplace. My rate is reduced to make it accessible to my target demographic, bit it’s still enough to cover my overhead and make a reasonable profit. I think that providing quality appellate services at an affordable rate is an inevitable market disruption, and I want to be ahead of the curve.

To put it in the bleeding-heart terms of American idealism, I saw an underserved population that was not always getting the justice it deserved. I wanted to help make the legal system more just, and I wanted to help people who didn’t have any other options.

I also love working with important legal issues. I love nerding out about the minutia of the law and obsessing over the subtleties of statutory language.

So, what’s in it for me? I get to establish a niche in a competitive marketplace. I get to help people. And I get to work with important legal issues. In return, my clients get quality appellate services at an affordable rate. Sounds like a good deal to me.