Utah Law Developments

JurisdictionUtah,United States
CitationVol. 33 No. 4 Pg. 26
Publication year2020
Utah Law Developments
Vol. 33 No. 4 Pg. 26
Utah Bar Journal
August, 2020

Appellate Highlights

By Rodney R. Parker, Dani Cepernich, Robert Cummings, Nathanael Mitchell, Adam Pace, and Andrew Roth

Editor’s Note: The following appellate cases of interest were recently decided by the Utah Supreme Court, Utah Court of Appeals, and United States Tenth Circuit Court of Appeals. The following summaries have been prepared by the authoring attorneys listed above, who are solely responsible for their content.


State v. Gallegos 2020 UT 19 (Apr. 29, 2020)

A divided panel of the court of appeals denied the defendant’s rule 23B request to investigate the extent to which he was prejudiced by his counsel’s failure to call witnesses and lack of preparation. Affirming, the supreme court held the defendant failed to establish sufficient facts that, if true, would likely change the outcome of the ineffective assistance of counsel inquiry, because the evidence against the defendant was substantial, and the missing evidence was not likely to change the prejudice analysis under Strickland. In doing so, the court emphasized that the Strickland inquiry was objective, rather than subjective, and that the deficient performance and prejudice inquiries were separate and distinct.

Davis County v. Purdue Pharma 2020 UT 17 (Apr. 23, 2020)

In this interlocutory appeal, the supreme court held that district courts have the inherent authority to transfer cases to a different jurisdiction for pretrial proceedings, and § 78B-3-309 does not limit that authority. In granting in part and denying in part a motion filed by various opioid-manufacturer-defendants to consolidate the fifteen opioid cases filed in the state in the Third District for pretrial proceedings, the Third District declined to order transfer and consolidation of cases pending in other districts. It, however, invited those districts to consider transferring the cases in those districts to the Third District. Upon a motion from a manufacturer-defendant, the Second District did so. The supreme court affirmed, holding that while neither Rule 42 nor § 78B-3-309 grants the authority to transfer cases to another district for pretrial proceedings, doing so is within district courts’ inherent authority. The Second District was well within its discretion in granting the defendant’s motion in this case.

Blanke v. Utah Bd. of Pardons & Parole 2020 UT 16 (Apr. 16, 2020)

This appeal arose from a petition for extraordinary relief filed by a prisoner who alleged that the Board of Pardons and Parole violated due process by determining that he is a sex offender, and conditioning his parole on sex offender treatment, without affording him the additional procedural protections discussed in Neese v. Utah Board of Pardons and Parole, 2017 UT 89, 416 P.3d 633. The prisoner had pled guilty to attempted child kidnapping, and had admitted to having sex with a minor in his presentence report. In affirming summary judgment to the Parole Board, the court held that due process does not require the procedures discussed in Neese when a prisoner has been convicted of, or admitted to, a crime that requires him to register as a sex or kidnap offender.

Graham v. Albertson’s LLC 2020 UT 15, 426 P.3d 367 (Mar. 31, 2020)

A plaintiff sued her former employer under a theory of common law wrongful termination. Applying the test laid out in Retherford v. AT&T Communications of Mountain States, Inc., 844 P.2d 949 (Utah 1992), the district court concluded that the Utah Occupational Safety and Health Act (UOSHA) preempted the plaintiff’s common law wrongful termination claim and granted partial summary judgment in favor of her employer. On interlocutory appeal, the supreme court reversed, holding that the trial court failed to account for specific language in UOSHA suggesting the legislature did not intend to preempt common law remedies. The court also noted that the...

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