Brenda L. Teig
Director of Pro Bono Programs
Utah Legal Services, Inc.
(at the Community Legal Center)
205 North 400 West
Salt Lake City, Utah 84103-1125
Voice: (801) 924-3376
Statewide toll free: (1800) 662-4245
Fax: (801) 328-8898
BTeig@AndJusticeForAll.org

Date: Friday, October 27, 2006

Time: 12:00 p.m. - 1:00 p.m.

Speaker: Cecilia Wainryb, Ph.D., Professor of Psychology, University of Utah

Location: Utah Law & Justice Center OR online (see below)

Cost: $15.00 lunch will be provided. Please pay at the door. $10.00 for Section Members $30 Others (lunch on your own)

CLE Credit: 1 hour CLE

RSVP: Kindly RSVP by October 25, 2006 to Kim at (801) 297-7032 or email sections@utahbar.org. Please note that all RSVPs via email are confirmed within 48 hours. Please provide your name and bar number. Thank you.

Web cast: To watch this seminar via your computer register at this link:
http://www.legalspan.com/utah/catalog.asp?UGUID=&CategoryID=20060316-032382-1139030&ItemID=20060913-032382-174108#ItemDescription
(self-study credit for web cast, each attorney needs to register to qualify for credit)

"Creating Effective Parenting Plans:
A Developmental Approach for Lawyers and Divorce Professionals"
By John N. Hartson, Ph.D. and Brenda J. Payne, Ph.D.
http://www.abanet.org/abastore/productpage/5130141
---Includes CD-ROM---

Today most visitation and custody arrangements in divorce cases are static and unchanging. "Creating Effective Parenting Plans: A Developmental Approach for Lawyers and Divorce Professionals" will assist you in developing a custody and parenting plan that effectively meets the needs of children from birth through age 18.

The "best interest of the child" is the currently accepted guiding principle in child custody determinations. This guidance calls for a developmentally appropriate parenting plan, that is, a custody arrangement that reflects the child's physical and psychological development. Historically, this has not always been the case. Even now it often faces challenges in the courtroom, running counter to the traditional attorney-client relationship, which often places the interests of the parents first.

Written by two pediatric psychologists who are experts in custody and visitation issues, "Creating Effective Parenting Plans" is an effective resource to assist lawyers in advising clients in the development of parenting plans that change over time to adapt to the best interests of the child. It explores the development of schedules of alternate parenting time with the best interest and developmental needs of the child considered first and not lost in the cacophony of parental conflict and competing claims.

Because presenting a case for a developmentally appropriate parenting schedule will present challenges for a practitioner, this book helps lawyers to provide clear evidence to the court of the child's age, present and expected developmental stages, and personal characteristics. Topics covered include:
-- A discussion of theories of attachment, temperament, language development, cognitive development, and emotional development;
-- An explanation of developmental issues at various stages from birth to age 2, age 2 to age 5, age 6 to 11, and age 11 to 18;
-- Other issues that can affect an effective parenting plan such as parental relocation, siblings at widely different developmental stages, mental illness, substance abuse, chronic health conditions, learning disabilities, and more.

"Creating Effective Parenting Plans" is an essential tool for dealing with the resolution of custody matters. It provides lawyers, judges, and parents with a basis to individualize the question of what is in a child's best interest, offering a different perspective on how to see the child as unique based on developmental research. In addition to chapters examining the developmental stages of children, this book provides ideas, checklists, and examples to guide clients through development of parenting plans that make sense. An accompanying CD-ROM contains forms and materials to use with clients.

2006, 250 pages + CD-ROM, 6 x 9, paper, ISBN: 978-1-59031-695-5

Review the Table of Contents here:
http://abastore.abanet.org/abastore/products/books/toc/5130141_toc.pdf

Price: $54.95 for ABA Section of Family Law members / $64.95 for nonmembers. For more information and to order online, please click here: http://www.abanet.org/abastore/productpage/5130141. To order by phone, please call the ABA Service Center at 1-800-285-2221 and request product code 5130141.

**MORE RECENT BOOKS from the ABA Section of Family Law:
-- "How to Build and Manage a Family Law Practice" by Mark A. Chinn -- http://www.abanet.org/abastore/productpage/5130140
-- "Assisted Reproductive Technology: A Lawyer's Guide to Emerging Law and Science" by Charles P. Kindregan, Jr., and Maureen McBrien -- http://www.abanet.org/abastore/productpage/5130139
-- "The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families" by Mark E. Sullivan -- http://www.abanet.org/abastore/productpage/5130135

Brigham Young University, J. Reuben Clark Law School, September 15 & 16, 2006

Perhaps the question asked most frequently by advocates of same-sex marriage is “what’s the harm?” BYU’s J. Reuben Clark Law School and The Catholic University of America’s Columbus Law School are co-sponsoring a symposium next Friday and Saturday on the societal, individual, and jurisprudential harm of legitimizing same sex marriage. Many American’s take the live-and-let-live approach to such policies, so it is important to articulate how developments that might not initially involve most citizens do harm society as well as many individuals.

Twenty-four leading scholars and professionals, including Scott Fitzgibbon, Boston College; Marianne Jennings, ASU; Allan Carlson, The Howard Center, Peter Wood, King's College; Lynne Marie Kohm, Regent University; Robert Destro, The Catholic University of America; Roger Severino, The Becket Fund for Religious Liberty; and several BYU professors of law, psychology, political science, and family studies will participate in this event. For more information go to the JRCLS Marriage and Family Law Research Project website at http://www.law2.byu.edu/marriage_family/.

$10 for 1-7 of CLE credit. (Sessions 3 and 4 are less than one hour)

FRIDAY:
8:40 - 10:20 a.m.
WSC Varsity Theatre
Session 1: How Legalizing Same-sex Marriage Harms the Stability and Integrity of the Basic Social Institution of Marriage

10:30 a.m. - 12:10 a.m.
WSC Varsity Theatre
Session 2: How Legalizing Same-sex Marriage Harms Religion, Morality, and Sexual Responsibility

1:10 a.m. – 2:00 p.m.
303 JRCB
Session 3: How Legalizing Same-sex Marriage Harms the Social Interests in the Channeling of Safe Sexual Relations

2:05 - 2:55 p.m.
303 JRCB
Session 4: How Legalizing Same-sex Marriage Harms the Social Interests in Promoting Responsible Procreation

3:00 – 4:15 p.m.
303 JRCB
Session 5: How Legalizing Same-sex Marriage Harms the Social Interest in Fostering Optimal Childrearing

4:25 – 6:00 p.m.
303 JRCB
Session 6: How Legalizing Same-sex Marriage Harms the Social Interest in Protecting Adults, Especially Wives & Mothers, and Husbands & Fathers, Who Care for Family

SATURDAY:
9:00 - 11:00 a.m.
306 JRCB
Session 7: How Legalizing Same-sex Marriage Harms the Social Interest in Fostering Virtue, Democracy, & Education

"The best, most comprehensive, most readable publication on solo practice I have seen. This publication is essential for veteran solos as well as those contemplating the solo life. I heartily recommend it."
— Charles F. Robinson

Revised and completely updated, with over 700 pages, the fourth edition of this comprehensive guide includes practical information gathered from a wide range of contributors, including successful solo practitioners, law firm consultants, state and local bar practice management advisors, and law school professors. All the contributors share tips and advice that can be easily implemented in your solo or small-firm practice.

This classic ABA book first walks you through a step-by-step analysis of the decision to start a solo practice, including choosing a practice focus. It then provides tools to help you with financial issues including banking and billing; operations issues such as staffing and office location and design decisions; technology for the small law office; and marketing and client relations.

What's more, the final section on quality of life issues puts it all into perspective. Whether you're thinking of going solo, new to the solo life, or a seasoned practitioner, Flying Solo provides time-tested answers to real-life questions.

Product Details:
Product Code: 5110527
© 2005 7 x 10 705 pages Paper
Phone Orders: 1-800-285-2221


LPM Book Promtions Web Site

BY STEPHANIE FRANCIS WARD
Reprinted from the ABA Journal

The Utah Supreme Court has upheld the bigamy conviction of a polygamist but split over whether the landmark U.S. Supreme Court ruling in Lawrence v. Texas reaches beyond consensual sex between same-sex couples.

The court rejected the appellant’s argument that a law prohibiting plural marriages violates his constitutional privacy rights. And though lawyers may take opposite sides on the case, several agree that its arguments may have an effect on the legal battle over same-sex marriage.

Utah law defines bigamy as a married person purporting to marry or cohabiting with someone other than his or her spouse. Under Utah law, a union does not have to be legally sanctioned to be considered marriage, so the bigamy statute could also apply to a polygamous arrangement where no unions were legally recognized, say lawyers on both sides of the issue.

The defendant, Rodney Holm, was legally married to one woman at the time of his conviction, and had two "spiritual wives" with whom he was sealed in Fundamentalist Latter Day Saints ceremonies. One of his wives was 16, and Holm was also convicted of unlawful sex with a minor.

In his appeal, Holm argued the state bigamy law should be struck down under Lawrence v. Texas, 539 U.S. 558, the 2003 ruling that found sodomy laws unconstitutional. The majority in Holm’s appeal disagreed, finding that Lawrence only applies to private, consensual sexual acts involving adults of the same sex. The Utah opinion notes that Lawrence specifically exempts minors.

"Despite its use of seemingly sweeping language, the holding in Lawrence is actually quite narrow," Justice Matthew B. Durrant wrote for the majority. "Specifically, the court takes pains to limit the opinion’s reach to decriminalizing private and intimate acts engaged in by consenting adult gays and lesbians." Utah v. Holm, No. 20030847 (May 16). Three other justices concurred with Durrant.

Chief Justice Christine M. Durham wrote a 37-page dissent to the 39-page opinion. While she agreed Holm’s conviction on having unlawful sex with a minor should be upheld, Durham argued the bigamy conviction should be overturned. Under Lawrence, she wrote, the due process clause of the U.S. Constitution’s 14th Amendment provides protection to private relationships between consensual adults. Considering that, Durham found the state bigamy law unconstitutional.

"I am concerned that the majority’s reasoning may give the impression that the state is free to criminalize any and all forms of personal relationships that occur outside the legal union of marriage," she wrote. "While under Lawrence, laws criminalizing isolated acts of sodomy are void, the majority seems to suggest that the relationships within which these acts occur may still receive criminal sanction."

Holm was convicted in 2003, and had already served his sentence by the time the opinion was published May 16.

Rodney R. Parker, a Salt Lake City lawyer who represents Holm, says his client may appeal to the U.S. Supreme Court. Under Lawrence, Parker says, consensual sexual acts between people of the same gender and polygamy are not distinguishable.

Laura B. Dupaix, an assistant Utah attorney general in Salt Lake City, represented the government in Holm’s appeal.

"Lawrence is a narrow holding, and it only applies to consensual, intimate sex between two consenting adults," she says. "It does not apply to matters concerning public interest or conduct involving minors. Since we had both of those components here, Lawrence was not applicable."

The fact that one of Holm’s "spiritual wives" was a minor does complicate the issue, says Suzanne Goldberg. A former Lambda Legal Defense senior attorney who now teaches at Rutgers School of Law-Newark, N.J., Goldberg doubts the Supreme Court would accept an appeal from Holm. However, she disagreed with how the Utah court interpreted Lawrence.

Goldberg notes Holm only had one legal marriage.

"To the extent he was engaged in a private relationship outside of his marriage, it seems to me that the constitutional privacy guarantee would protect that," Goldberg says. "That’s where the majority overreaches, because Lawrence clearly protects the rights of adults to make decisions about intimate relationships."

Lynn D. Wardle, a professor at Brigham Young University’s J. Reuben Clark Law School, disagrees. According to Wardle, the Holm opinion is a "stalking horse" for same-sex marriage, and the majority in Lawrence went out of its way to distinguish the conduct in question from same-sex marriage.

"Lawrence involved a criminal statute that prohibited private sexual behavior between consenting adults involving no commercial incentives. It did not involve marriage," says Wardle, who teaches family law at BYU. "Redefining marriage by allowing multiple spouses or allowing people of the same gender to marry has a very direct impact on marriage, which many people reasonably believe will weaken, degrade and jeopardize the basic social unit of society."

He mentions recent media interest in polygamy and the Fundamentalist Latter Day Saints. The group’s leader, Warren Jeffs, is accused of orchestrating polygamist marriages for underage girls and is on the FBI’s Ten Most Wanted Fugitives list.

The FLDS paid for Holm’s defense, according to Parker. Parker has represented the group, including Jeffs, for some time, and Parker says FLDS members will not abandon polygamy because the practice is a key part of their beliefs.

In fact, according to both Parker and Dupaix, the state does not prosecute adults who engage in consensual polygamy. Such cases are hard to prove, Dupaix says, and the state can better use its resources prosecuting other crimes.

However, according to Parker, polygamists engaged in consensual relationships with adults are persecuted in Utah, largely because of the state’s history. Settled by Mormon pioneers who often engaged in polygamy, Utah made the practice illegal as a condition of becoming a state in 1896.

"The state uses the fact that they’re polygamists to injure them in some other way," says Parker, a former member of the more mainstream Church of Jesus Christ of Latter-day Saints. Parker is now a Roman Catholic.

"These are people who are not going to change. They are sincerely religiously motivated people who have been living with the threat of legal action for more than 100 years," he says. "If someone commits a crime like having sex with a minor or welfare fraud, then [the government] should prosecute those crimes. But that does not mean they should prohibit an entire lifestyle."

Brian M. Barnard, a fellow Salt Lake City lawyer, agrees. He represents a man and two women in a polygamous relationship who were denied a marriage license there. Their civil rights case was dismissed in U.S. District Court, and an appeal is pending in the 10th U.S. Circuit Court of Appeals, based in Denver.

Barnard says his client’s appeal is similar to Durham’s dissent in the Holm opinion.

"If society accepts that unmarried people want to live with each other in a sexual relationship, which was verboten in the not too distant past, and they say that homosexuals can engage in sexual acts, tell me how polygamy differs from that?" Barnard asks.

©2006 ABA Journal

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 Roth

Ask 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.

R E G I S T E R

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.

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.