October 24, 2005
EVENT - An Evening with the Third District Court
An Evening with the Third District Court
11/15/05 / 5:30 p.m. - 8:00 p.m.
Utah Law & Justice Center
Event Sponsor - Utah State Bar & the Litigation Section
COST - $15.00 YLD; $25.00 Lit. Section; $50 Others
CLE Credit - 2 hours CLE/NLCLE
Agenda:Judges Panel:
Hon. Glenn K. Iwasaki
Hon. Sheila K. McCleve
Hon. Stephen RothAsk questions and hear answers from the these judges on procedures particular to their courtroom, jury voir dire, jury instruction, ex-parte motions, filing of papers, addressing the witnesses, preparation of orders and general courtroom decorum.
Posted by BarBlogAdmin at 02:47 PM
Bar Journal - New Laws Every Lawyer Should Know
From the Utah Bar Journal
New Laws Every Lawyer Should Know
by Brent N. Bateman
This article highlights some important bills passed in the recently concluded 2005 Utah legislative session. The new laws discussed here are important to members of the State Bar, not because they are interesting or controversial, but because they include changes that attorneys should be aware of in practice. For example, some legislative changes may affect the advice an attorney gives to a client. Naturally, this article will not provide an exhaustive review of new legislation impacting the bar. Rather, it will briefly discuss a few selected laws, hoping to inspire members of the bar to undertake a more detailed review.
The newly enacted statutes are organized here into very general practice areas. Note, however, that a bill often impacts more than one practice area. For example S.B. 47, Wrongful Lien Offenses, discussed below in the criminal section, also raises issues of real property law, tort law, and estate planning.
Real Property and Land Use
This year's single legislative act receiving the most commentary, for both good and ill, may be S.B. 184, Redevelopment Agency Amendments. This law makes several changes to the Redevelopment Agency Act. The amendments place a moratorium upon new redevelopment agency projects for retail businesses until June 30, 2006. Apparently, this moratorium is a compromise - earlier versions of this bill aimed to permanently prevent the "Wal-Martification" of America. The Amendments also prohibit redevelopment agencies from using eminent domain to acquire property in the redevelopment area, unless acquiring property from a redevelopment agency board member or officer. Friends of this bill will certainly rejoice, and foes lament, that the Redevelopment Agency Act has thereby been effectively deprived of its teeth.
Conversely, H.B. 11, Economic Development Incentives, encourages commercial development by allowing local governments to create economic development zones. These zones provide tax incentives in order to attract commercial projects to certain areas. This act sets forth requirements for establishing these zones, and criteria for qualifying for tax rebates. The legislature also enacted S.B. 60, Local Land Use Development and Management Amendments, which generally modifies local land use and development laws. This bill streamlines development planning and review by making changes and clarifications to the laws regarding conditional use permits, exactions, vested rights, notice, spot zoning and non-conforming uses, development review, general plan preparation, land use ordinance adoption, and many other aspects of development law. Clients that own, develop, or govern land will benefit from our careful review the extensive changes made by this bill.
Other property related laws of which practitioners should be aware include H.B. 26, Conveyances of Property. This bill provides for conveyance of real estate by Special Warranty Deed. The Special Warranty Deed conveys to the grantee fee simple title to the property, with a covenant from the grantor that the grantor will forever warrant and defend the title of the property against any lawful claim and demand of the grantor and any person claiming by, through, or under the grantor. This bill also provides for conveyance of after-acquired title, permitting and validating a conveyance of an estate in land that does not presently exist in the grantor, but is expected to exist in the future. H.B. 184, Crime Victims - Change of Locks on Rental Property, will be important to clients that own or live in rental property. It permits renters who are victims of domestic violence, stalking, sexual offences, burglary, or other violent acts to require the property owner to install new locks at the renter's expense.
Water Law
A few important changes to the powers and duties of the state engineer, and the penalties for wrongfully taking water, have, hopefully, come too late for the drought. H.B. 29, State Engineer's Powers and Duties Amendments, and H.B. 157, Water Enforcement Procedures and Penalties, should be read together. These new laws authorize the state engineer to bring civil lawsuits - for unlawful use, appropriation or diversion of water - without first resorting to the administrative process. The state engineer may also now issue cease and desist orders, issue notices of violation, and impose administrative penalties. This bill also provides that the prevailing party in a suit brought by the state engineer may be awarded its costs and attorney fees.
In addition to the threat of civil action by the state engineer, water thieves may also face criminal prosecution. Under H.B. 38, Water Law - Criminal Penalties Amendments, knowing and intentional theft of water, if causing damage of a certain value, becomes a felony. In addition, each day of the violation is a separately chargeable offense.
Family Law
Much was to be said here of H.B. 42, popularly known as the Ritalin Bill, which would have prohibited educators from requiring that children be medicated before attending classes. However, a veto by the governor has pre-empted that discussion. Instead, the legislature has responded to a recent media clamor with S.B. 83, Medical Decisions of a Parent or Guardian. This new law provides that the decision of a parent regarding the health care of the child cannot be considered neglect of the child, unless it can be shown by clear and convincing evidence that the decision of the parent is not reasonable and informed. This bill also provides that when an informed parent refuses to consent to the child's recommended care, a malpractice action against the provider cannot be brought on the basis of the consequences.
Other new laws affecting family law include H.B. 4, Divorce Mediation Program, which makes mediation in divorce actions mandatory. H.B. 280, Joint Custody Amendments requires that a proposed parenting plan be submitted whenever a parent seeks to modify any type of shared parenting arrangement.
Criminal Law
Numerous new criminal offences were created or modified in the recent legislative session. Of interest to both civil and criminal practitioners is S.B. 47, Wrongful Lien Offenses. The bill establishes felony-level criminal penalties for recording a wrongful lien or for fraudulent handling of a recordable writing. The client who does not have an objectively reasonable basis to believe she has a present and lawful interest in the property should be advised that filing a wrongful lien on that property could result in a felony conviction. Accordingly, falsifying, destroying, removing, or concealing any will, deed, mortgage, security instrument, lien, or other writing which may be recorded, with the intent to deceive or injure, may result in a felony conviction. Civil practitioners should also be aware that this bill provides for an ex parte injunction action against the person making the wrongful lien.
Other important changes to the Criminal Code include H.B. 76, Habitual Violent Offenders Amendments, which adds mayhem, stalking, terroristic threat, and child abuse to the definition of Violent Felony. It also changes elements required to prove that a defendant is a habitual violent offender. H.B. 297, Aggravated Murder Amendments, redefines aggravated murder to include situations where a defendant abuses or desecrates the body of the murder victim. H.B. 221, Electronic Communication Harassment, extends the current law regarding telephone harassment to electronic communications such as email. H.B. 54, Criminal Appeal Amendments, makes appeals regarding denial of bail, final judgment of conviction, certain orders made after judgment, pretrial dismissal of felony charge for double jeopardy, and certain other cases, appeals as of right. Finally, but not least significantly, S.B. 177, Increase Statute of Limitations on Rape, doubles the amount of time from 4 to 8 years that prosecutors have to bring an action against a defendant for rape, but only if the sexual assault was reported to law enforcement within four years after the assault is committed.
Miscellaneous
There are many other new laws that merit mention, but space limitations dictate the discussion of only a few. S.B. 227, Public Safety Driving Privilege and Identification Card Amendments created quite a brouhaha on Capitol Hill. This bill provides that individuals that meet all of the requirements for a driver's license, but do not have a social security number (read: non-citizens), may receive a card entitling that individual to drive, but not valid for identification purposes with any governmental agency.
H.B. 275, Business Entity Amendments, makes many changes to the laws regarding business organizations. The Utah Revised Business Corporation Act, the Utah Revised Uniform Limited Partnership Act, and the Utah Revised Limited Liability Company Act are amended in several respects, both significant and incidental. The changes should be carefully reviewed before advising the business client. Important changes include provisions affecting the liability of managers, and allowing corporate notice in some circumstances by electronic communications.
H.B. 186, Consumer Protection Amendments makes many changes to laws important to consumer law practitioners. Highlights include prohibiting telephone solicitations to a consumer who has requested not to receive calls from that solicitor, and removing the criminal penalty from the Telephone and Facsimile Solicitation Act. Additionally, if your client owns a health spa, familiarize yourself with this legislation without delay.
S.B. 173, Brownfields Revision, authorizes the DEQ to provide written assurance to purchasers, contiguous landowners, and innocent landowners, that they will not be subject to any enforcement or cost recovery for cleanup of the property. In addition, the bill provides that a party who incurs costs in excess of his liability under a voluntary clean-up agreement has a right of contribution, and may institute a court action to claim these excess costs.
Finally, H.B. 104, Spyware Control Act Revisions, and H.B. 260, Amendments Related to Pornographic and Harmful Materials, assure us that the Utah legislators have not forgotten their technophile constituents. The first addresses spyware, prohibiting certain pop-up advertisements, and forbidding liability for the removal of certain potentially harmful software. A civil action to enforce the act is authorized. The second bill requires Utah-based internet service providers to provide a mechanism for blocking harmful content. It also provides for the creation and dissemination of the Adult Content Registry, a listing of sites containing material harmful to minors. This act provides for criminal sanctions for those that violate it.
Conclusion The brief discussion above does not represent a complete review of the multitude of new laws affecting members of the Utah State Bar, nor can this information replace personal review of the actual text of the new laws. Reading the text of the legislation discussed above is, of course, highly recommended. Moreover, there are many other new laws, not discussed here, that may impact your law practice. To review them, go to the Utah Legislature's website: http://www.le.state.ut.us.
Posted by BarBlogAdmin at 02:33 PM