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UTAH BAR JOURNALVol. 4, NO.6 June/July 1991

iss U E

Our Remarkable Constitution

The Attorney General, the Constitution and You

Is Graduation Prayer Constitutional? Pro/Con

The Bil of Rights:A Promise Fulfilled in the 20th Century

Believing in the Bil of Rights

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~ .. EDITORIAL NOT~

The United States Constitution has been characterized, perhaps hyperbolically, as the most important and sublime document inthe history of democratic institutions, and the Bil of Rights as the fountainhead of humankind's aspiration for basic freedoms.And yet few Americans can recite or even identify a majority of Bil of Rights' amendments. For this reason, the Bar Journalstaff felt that it would be especially appropriate to set forth verbatim in this special issue the incomparable Bill of Rights.

¡

PÆæ~AMENDMENTS

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10JunelJuly 1991

1 Freedom of Religion, Speech, Press, Assembly and to Petition the Government.Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; orabridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petitionthe govemment for a redress of grievances.

2 Right to Keep and Bear Arms.A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and beararms, shall not be infringed.

3 Quartering of Soldiers.No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war,but in a manner to be prescribed by law.

4 Search, Seizure and Arrest.The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches andseizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath oraffirmation, and particularly describing the place to be searched and the persons or things to be seized.

5 Grand Jury, Double Jeopardy, Witnessing Against Oneself Due Process, Private Property.No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actualservice in time of war or public danger; nor shall any person be subject for the same offense to be twice put injeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor bedeprived of life, liberty or property without due process of law; nor shall private property be taken for public usewithout just compensation.

6 Right to Speedy Trial by Jury, to Confront Witnesses and to Have Assistance of CounseL.In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury ofthe state and district wherein the crime shall have been committed, which district shall have been previouslyascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with thewitnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistanceof counsel for his defense.

7 Right to Trial by Jury in Civil Suits.In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall bepreserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, thanaccording to the rules of the common law.

8!J

Excessive Bail, Fines, and Cruel and Unusual Punishment ProhibitedExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Rights Retained by the People.The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retainedby the people.

Powers Reserved to States or People.The powers not delegated to the United States by the Constitution; nor prohibited by it to the states, are reservedto the states respectively, or to the people.

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Published byThe Utah State Bar

645 South 200 EastSalt Lake City. Utah 841 I ITelephone (80 i) 53 I -9077

UTAH BAR JOURNALVol. 4, NO.6 June/July 1991

PresidentHon. Pamela T. Greenwood

President.ElectJames Z. Davis

President's MessageBy Hon. Pamela T. Greenwood 5

Executive Director

John C. Baldwin

Board of Bar CommissionersH. James CleggRandy L. Dryer

J. Michael HansenDennis V. Haslam

Jackson B. HowardGayle F. McKeachnie

James E. MortonPaul T. MoxleyJeff R. Thorne

Commissioner's ReportBy Randy L. Dryer 7

Utah Bar Foundation 9

Ex.Offcio MembersHans Q. Chamberlain

H. Reese HansenNorman S. JohnsonReed L. Martinean

Lee Teitelbaum

Our Remarkable ConstitutionBy Rex E. Lee

The Attorney General, the Constitution and YouBy Attorney General Paul Van Dam

Is Graduation Prayer Constitutional? Pro/ConPro by Oscar W. McConkie

Con by Michele A. Parish

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State Bar News 23Young Lawyers Section

PresidentRichard A. Van Wagoner

Views From the BenchT,he Bil of Rights: A Promise Fulfiled in the 20th CenturyBy Justice i. Daniel Stewart 26

Bar Journal Committeeand Editorial Board

EditorCalvin E. Thorpe

Associate Editors

Randall L. RomrellWilliam D. HolyoakM. Karlynn Hinman

The BarristerBelieving in the Bil of RightsBy Keith A. Kelly 30

CLE Calendar 32

Articles EditorsLeland S. McCullough Jr.

Glen W. Roberts

Classified Ads 34

Letters EditorVictoria Kidman

Views from the BenchJudge Michael L. Hutchings COVER: Our thanks for the cover ilustration to T.J. Powell, design artist

and ilustrator.Legislative Report Editor

John T. Nielsen

The Barrister EditorsPatrick Hendrickson

Lisa Watts

Members of the Utah Bar who are interested in having their photographs on the cover of the Utah BarJournal should contact Randall L. Romrell, Associate General Counsel, Huntsman Chemical Corporation,2000 Eagle Gate Tower, Salt Lake City. UT 84111,532-5200. Send both the transparency and a print ofeach photograph you want to be considered. Artists who are interested in doing illustrations are also invitedto make themselves known.

Case Summaries EditorClark R. Nielsen

The Utah Bar Journal is published monthly, except July and August, by the Utah State Bar. One copy ofeach issue is furnished to members as part of their State Bar dues. Subscription price to others, $25; singlecopies, $2.50; second-class postage paid at Salt Lake City, Utah. For information on advertising rates andspace reservation, call or write Utah State Bar offices.

Margaret R. Nelson1. Craig Smith

Denver C. SnufferE. Kent SundbergKaren Thompson

Hon. Homer F. Wilkinson

Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, andpublication of advertisements is not to be considered an endorsement of the product or service advertised.

Copyright i¡ 1991 by the Utah State Bar. All rights reserved.

4 Vol. 4 No.6

Reflections and Appreciation

In preparing this final message ofmy term as president, I reread asimilar message written a year ago byHans Chamberlain, my predecessor. Hanswrote about his year being one encom-

passing both the best and worst of times,and his preoccupation with the financialdifficulties of the Bar. This past year

could be described in a similar manner, aswe have continued to struggle with the fi-nancial condition of the Bar. However, wenow seem to have finances under controland are operating in the black. As reportedin previous Bar Journals, we have metand surpassed the financial goals set bythe Supreme Court in its August minuteentry and have been able to do budgetaryplanning in a timely manner, with oppor-tunity for input from Bar members. I amconfident that we are now in a solid finan-cial mode, with the capacity to produce

accurate, timely financial reports, avoid fi-nancial surprises and do responsible plan-ning for the future.

Much of this year has also been de-voted to working with the SupremeCourt's Task Force on the future form andmanagement of the Bar and the practice oflaw in Utah. Task Force members have

labored long and diligently to gather in-formation, assess that information and for-

By Hon. Pamela T. Greenwood

mulate recommendations to the Supreme

Court. While that report is not yet com-pleted as of the time I am writing this mes-sage, I believe that the process has beenhealthy and will produce a better system

for the long-term future. The Task Force'sdeliberations have provided an opportu-nity for all of us, including Bar commis-sioners and officers, to reflect more deeplyabout the legitimate purposes of the Barand responsibilities of those licensed topractice law. While most everyone seemsto acknowledge the need to regulate theadmission of persons to practice law andcompliance with the Rules of ProfessionalResponsibility, there is less unanimity

about the Bar's involvement in activitieswhich educate lawyers, provide forums fordiscussion of legal subjects, or inform thepublic about the legal system and how toaccess that system. While I recognize thatothers differ, I am convinced that the Barcan and should provide those latter ser-vices and an integrated Bar is the most

effective vehicle to do so. It is interestingto note that the cost of engaging in such"non-regulatory" activities is minimal, pri-marily because of the outstanding dona-

tion of time and services by Bar members.This year, for the first time, we en-

deavored to identify all indirect costs of

Bar programs and services. This processentailed allocating Bar personnel time andoverhead costs attributable to various per-sonneL. It was not an exact calculation, andcould not be, but gives us a more realisticpicture of the costs of Bar activities and abetter means of evaluating their continua-tion. All Bar members were provided withthe cost breakdown, as well as a descrip-tion of the programs and services, andgiven an opportunity to comment. As Iprepare this article, those comments arebeing received. On or before June 5, theBar Commission wil file a petition withthe Supreme Court, seeking permission tocontinue certain programs or serviceswhich are not regulatory and which are notfinanciall y self-sufficient. Determinationof which programs or services to be in-cluded in the petition wil be made aft~,r.¡receipt of all comments. A copy of the p¿- .,tition wil be available at the Bar offices

and will be mailed to all local bar associa-tions.

Our success in addressing fiscal issuesand ongoing Bar operations is largely at-tributable to the efforts of Bar staff. I amextremely grateful to Bar staff who haveworked so hard this year under trying cir-cumstances. We reduced staff, hired newpersonnel, undertook gargantuan tasks,

JiinelJuly 1991 5

and did not otherwise reduce demands onour staff, John Baldwin, our new Execu-tive Director, walked into a hornets' nest,but has ably coped with his assignments.

His job was made easier by the wiling-ness of Brian Florence to serve as interimdirector. My hearfelt thanks to John,Brian and all staff members. You are thebest!

One of the greatest attractions of be-coming a "Bar junky" is the associationwith outstanding people, who are commit-ted to the legal profession and to public

service, and who enjoy lively, but friendIy,debate. My life has been enrched by theindividuals I've worked with in the Bar-all the present and former Bar commis-sioners, Bar staff, and countless others, in-cluding their spouses or best friends. Myparicular thanks to Bar Commissioners

and Ex-Officio Commission members

serving this year. As Mike Hansen pointedout in his Commissioners' Message last

month, this is not a glamour job, The

hours are long, the issues tough, and the

opportunity Iately for pleasurable colloquylimited. But everyone has served faithfullyand provided valuable contributions forthe present and future of the Utah Bar and

Utah's citizenry. The present Bar Commis-sioners and Ex-Offcio Commission mem-bers are talented, dedicated individualswho wil continue to provide able leader-ship for the Bar.

Lastly, my thanks and love to my fam-ily: husband David, and my children,Christine and Nick. I look forward to re-newing our relationships and spendingmore time together. I wil also continue tobe available to assist the Bar wherever Ican be of service.

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Vol.4No.6

Unification of Utah's Judiciary-A LongOverdue Step in Modernizing the Courts

19 9 1 marks the beginning ofthe judiciary's struggletoward unification of the district, circuit,and juvenile courts into a single trial courtof general jurisdiction. The concept of uni-fication has not been without its critics andwil undoubtedly continue to be controver-siaL. Nonetheless, I believe unification, inthe long term, represents the judiciary'sbest hope of continuing to provide high-quality justice at a cost the public can af-ford.

Two major events, both moving us to-ward unification of the courts, have andwil reach fruition in 1991. The first, im-plementation of HB 436 (the Utah TrialCourt Organization and Jurisdiction Act),wil begin the process of merging the cir-cuit into the district court over a period offour to six years. This legislation was theresult of a study conducted by the courts atthe direction of the Legislature, A reportof the provisions of this bil appeared in

the April issue of the Bar Journal. Thesecond event wil be adoption of the finalreport of the Utah Commission on Justicein the 21st Century, which wil recom-mend the merger of the juvenile into thedistrict court. The preliminary report ofthe Commission wil be presented at pub-lic hearings throughout the state in Apriland May of this year.

By Randy L. Dryer

THE ADVANTAGESOF UNIFICATION

Unification eliminates single-judge

districts. Single-judge courthouses are ex-pensive to build and maintain because ofthe high percentage of the facility cost as-sociated with fixed overhead. The status ofthe law in a district wil no longer reflect

the philosophy of just o'ne judge, but

rather wil develop through the exchange

of ideas of several judges. Judges and

practitioners alike can enjoy the relief of a"cooling off' period not available whenevery case of every lawyer is decided by

just one judge.Unification of the courts establishes

one level of trial court judge with author-ity over all case types. One level of trialcourt judge can better manage the shiftinggrowth in caseload based on the maturityof the population without significant in-creases in the number of judges or clerks.Several judges of identical authoritymeans greater judicial availabilty. Emer-gency matters wil not be delayed because

the only judge with authority for the man-ner is conducting a hearing, at a commit-tee meeting, or in another county.

Public access to the courts wil also beimproved through unification. By combin-ing clerical operations, unification meansone location in which to conduct all court

business. No longer must one travel to thedistrict courthouse for cases over $ 1 0,000

and to the circuit courthouse for cases un-der $10,000. Claims for relief at or near$10,000 wil not be bounced betweencourts in search of a forum, By integratingjurisdiction, unification means one court,perhaps one judge, can resolve interrelatedactions. This is especially important in thearea of family, juvenile, and domestic lawwhere the resolution of disputes may takea more holistic approach.

Unification wil enhance the stature ofthe office of trial court judge. The modelunified court structure developed by theCommission relies heavily on the use ofcommissioners, similar in purpose to thefederal magistrate, for the conduct of pre-liminary civil and criminal matters and forthe disposition of minor civil and criminalactions, By such reliance, unification rec-ognizes the significant difference betweenthe skils necessary for a commissioner inthe management of a high volume case-load presenting routine issues and the

skils necessary for a judge in the disposi-tion of civil and criminal actions present-ing significant issues of public policy. Forthe first time, the courts wil have the op-portunity simultaneously to recognize the

efficiency of specialization-,bycommissioners-and the benefits of

JunelJuly 1991 7

:genIråHzation-by judges. The fullest use""'df''''commissioners should reduce the bur-

de~ facêd by lawyers, especially the crimi-nal prosecution and defense bar, in tryingto appear before several judges at the sametime.

CREATING ADMINISTRATIVEFLEXIBILITY FOR THE FUTURE

Unification of the trial courts is theprincipal, but not the sole goal of eitherHB 436 or the Commission report.

HB 436 and the Commission report, ifadopted, wil provide needed flexibility inthe manner in which the record is main-tained. The use of videotape is now possi-ble, under HB 436, although its use needsto be studied carefully before widespreadimplementation. In addition, HB 436 al-lows the LegisIature through the fundingprocess and the Judicial Council throughthe rule-making process to identify the lo-cation of courts based on workload andpublic convenience. This provides theflexibility to keep at least some types ofcases geographically close to the litigantsand their lawyers,

In the areá of the criminal law, fees onfines are eliminated in favor of a uniformsurcharge. This permits more predictabil-ity of result to prosecution and defense

alike, enabling them to better advise cli-ents and decide alternative courses of ac-tion. Fine revenue is distributed withoutregard to the level of court in which thecase is prosecuted, the level of the offensecharged, or the method of disposition.This, should remove any cloud that prose-cution decisions are based upon revenueconsiderations.

Under HB 436, the district courts (andin the interim, the remaining circuit

courts) have county wide criminal venue.HB 436 repeals a provision that requires

an offense be charged in the justice courtif the justice court has subject matter andterritotìáI jurisdiction. As a result of thisnow repealed provision, circuit courtvenue extended only to the city limits inclass B misdemeanors and less. Under HB436, prosecutors always have a court of

record available in which to charge class Bmisdemeanors. This avoids the cost andtime of a de novo trial in a court of recordafter trial in the justice court. This helpsensure a sound record for appeal in seriouscases.

One of the lesser known aspects of HB436 is the creation of a retirement incen-tive for judges who retire during themonths of October, November and De-cember 1992. This retirement incentivewil result in several judicial vacancies be-ing filed simultaneously, thus providing

qualified and motivated lawyers with nu-merous opportunities for appointment towhat soon will be a unified district courtbench.

The Justice Commission report en-courages judges in their professional de-velopment to broadly expand their knowl-edge rather than to narrow their focus onspecialization. The report provides thecourts with a framework for the continueddevelopment of technology as an aid in thetimely and economic resolution of litiga-tion. The report challenges the courts tointegrate alternative dispute resolution intothe mainstream of litigation managementand sets forth guides for the courts inmaintaining both physical and economicaccess to the courts.

CHALLENGES FORTHE FUTURE

The above are some of the provisionsof HB 436 and the Justice Commission re-port that will profoundly affect the courseof the administration of justice. But, as

significant as this legislation and this re-port are, they represent only the first step.There are yet many complex issues to beresolved and many diffcult tasks to becompleted in giving full effect to HB 436.The report of the Commission remains

only a report; it is not self-actuating.The judiciary encouraged participation

by the Bar in both the effort to draft HB436 and the study and report of the Com-

mission on Justice in the 21st Century. Ihave had the pleasure of serving as amember of the Justice Commission and aschair of one of its subcommittees. Con-

tinuing participation by lawyers is criticaL.The judiciary is forming both statewide

and local committees to impIement HB436. These or simiIar committees likelywill form the nucleus for implementation

of the Commission report, as well. Thestatewide committee and each local com-mittee will have representation by the Bar.I encourage anyone interested in partici-pating in this exciting process to contact

me or the presiding judge of the districtcourt of your district and volunteer for ser-vice. Lawyer participation is critical be-cause the legislation and the Commissionreport affect lawyers and their clients.

Unification carries with it both opport-unity and obligation. The judiciar mustdeliver the clear, independent law neces-sary to the integrity of the law. The courtsmust provide equal access to the law with-out bias and an open forum for the just,honorable resolution of disputes. The judi-ciary of Utah, including judges, commis-sioners, administrators, clerks, and proba-tion offcers have long faced these obliga-

tions with courage and success. The stepsnow being taken provide even greater op-portunity and hence even greater obliga-tion to improve upon that success.

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And you can't find arepresentative closer to your needs.Lawyers Cooperative Publishing brings the issues intofocus like no one else. And no onecan bring the systeminto focus for you like Ron Furner in Utah. As your localrepresentative he'll tell you what's available, what's af-fordable, what's the real value to you in having today'sbest source of analytical legal research in your area; rightthere when you need him. For more information, callhim today. Call Ron directly, or call1-BOO-527-0430. Ron Furner

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8 Vol. 4 No. 6

Establishes AnnualCommunity Service

Scholarships and ChoosesFirst Recipients

Early in 1991, the Board of Trustees of

the Utah Bar Foundation established twoCommunity Service Scholarships in theamount of $3,000 to be awarded to onelaw student at the University of Utah Col-lege of Law and one law student at theBrigham Young University Law SchooL.To qualify for the scholarship, a studentmust have participated in and made a sig-nificant contribution to the community byperforming pro bono services in commu-nity organizations and agencies.

At the April meeting of the Board ofTrustees two students were chosen to re-ceive these scholarships.

University of Utah law student HONGTHI TRAN wil receive a $3,000 scholar-ship for her community volunteer service.Hong Thi Tran has volunteered her timeand talents to Utah Legal Services, theLaw School Service Day Project, and tothe Praeder-Wili Program, renovating the

spouse abuse shelter, CARE package for

Hong Thi Tran

children, Habitat for Humanity, NationalPark Service and the Student AmbassadorProgram at the Lowell Bennion Center.She has also served on the United WayCampus Fund-Raising Committee and as arecruiter for the March of Dimes Walk-a-Thon and Metro Atlanta Hunger Walk.

Brigham Young University law stu-dent ROSEMOND V. BLAKELOCKwil also receive a $3,000 scholarship

award for her service to the communitywith the Licensed Foster Family for theDepartment of Social Services, as a volun-teer caseworker for abused children inProvo, and developing a program for mak-

Rosemond V. Blakelock

ing city services available to disadvan-

taged children in Canton, Ohio. She is cur-rently serving as an AdministrativeAssistant/Caseworker for the Office of theGuardian ad Litem, Fourth District Juve-nile Court in Provo, Utah.

The Utah Bar Foundation congratu-lates both of these law students for theiroutstanding accomplishments and hopesthat their interest in community servicewil continue. The purpose of these schol-arships is to reward students who haveparticipated in community service in ameaningful way and to encourage otherstudents to do likewise.

Utah Bar Foundation Pre-sents 1991 Ethics Awards

Mark T. UrbanKerry Lee Chlarson

The Utah Bar Foundation, in coopera-tion with the J. Reuben Clark School ofLaw and the University of Utah College ofLaw, has established an Ethics Award tobe awarded to a graduating student at eachschooL. The Rules of Professional Conductadopted by the Utah State Bar establishethical standards for Utah lawyers, but en-courage lawyers to strive for even higherethical and professional excellence, As

stated in the preamble to the Utah Rules ofProfessional Conduct:

Many of a lawyer's professional respon-sibilities are prescribed in the Rules ofProfessional Conduct as well as substan-tive and procedural law. However, a law-yer is also guided by personal conscienceand the approbation of professional peers.

A lawyer should strive to attain the highestlevel of skil, to improve the law and the

legal profession, and to exemplif the le-gal professional ideal of public service.

In an effort to promote and encouragenew members of the Bar to adopt high eth-ical standards, the Utah Bar Foundation, incooperation with the Utah law schools, es-tablished the ethics awards. Each lawschool annually selects a graduating seniorwho embodies high ethical standards.

One of the Foundation's 1991 Ethics

A wards was recently presented by theHonorable Norman H. Jackson, Vice Pres-ident of the Utah Bar Foundation, to

MARK T. URBAN at an awards assem-bly held at BYU in March.

Mr. Urban, April graduate fromBrigham Young University, is a memberof the Board of Advocates, of the GoldenKey National Honor Society and of PhiKappa Phi Honor Society, and a recipientof academic scholarships from 1988through 1991. During his law school yearshe served a summer clerkship with Davis,Graham & Stubbs, worked as a YouthCorrections Coordinator and Assistant Di-rector at the Provo Youth Detention Cen-

ter, and researched and co-authored arti-cles with Professor Robert E. Riggs for theBYU Journal of Public Law.

Bar Foundation President Richard C.Cahoon presented the other Foundation's1991 Ethics Award to KERRY LEECHLARSON at the University of UtahCollege of Law.

Mr. Chlarson, May graduate, is amember of the Natural Resources Law Fo-rum, a staff writer for the Western EnergyBulletin in 1989-91, and filled a JudicialExtemship with Justice 1. Daniel Stewartat the Utah Supreme Court in 1990. He isa former Marine and a recipient of theNavy ROTC Marine scholarship, andfiled various ROTC leadership positions.He has completed law school, in spite ofsevere bums he received in a Jeep accidentwhile in the Marines.

The Utah Bar Foundation congratula-tions Mark T. Urban and Kerry Lee Chlar-son for their outstanding accomplishmentsand high ethical standards during lawschooL.

JunelJuly 1991 9

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Our Remarkable Constitution

Congress has officially designatedthe 15-year period from 1976through the summer of 1991 as our bicen-tenniaL. Bicentennial! Over the past 15years, this word has virtually acquired asecondary meaning. Viewed narrowly, ithas been a ceremonial observance of themost remarkable period in the history ofour nation, and perhaps in the history ofthe world. From a broader perspective, thebicentennial has symbolized patriotismand liberty, and has served as a valuablereminder that the unique blessings we en-joy as Americans are largely attributableto a document that has proven to be, not-withstanding some flaws, probably themost successful governmental undertakingin the history of civilized life on this plan-et.

The 200-year anniversary that we havebeen observing was a I5-year period thatbegan with the Declaration of Indepen-

dence and ended with the adoption of theBil of Rights by the first Congress in thesummer of 1791. The Constitution-makingportions of that decade and a half lastedonly four years, and consisted, in myview, of three basic phases. The first wasthe famous Philadelphia Convention in thesummer of 1787, That story has been toldseveral times and in several ways, but no-where more interestingly nor more accu-rately than in Brigham Young University'sfilm production, "A More Perfect Union."The convention was conducted in secret,and representing several struggles of epicproportions among the delegates, ulti-mately resolved by a series of compromis-es. Someday someone should make an-other movie like "A More Perfect Union,"telling the story of the second and thirdphases, which were ratification and the

By RexE. Lee

REX E. LEE is the 10th president of BrighamYoung University, a position he has held sinceJuly 1989. Prior to his current position, he

was a partner in the law firm of Sidley & Aus-tin from June 1985. Before that, he servedfour years as Solicitor General of the UnitedStates. President Lee was the founding deanof the J. Reuben Clark Law School atBrigham Young University, in which capacityhe served from 1971 through 1975.

adoption of the Bil of Rights. Chronologi-cally, ratification and the Bil of Rights'adoption occurred in successive time peri-ods, but they ended up being linked toeach other. Their story is just as dramaticand the process came just as perilouslyclose to failure as did the Constitutional

Convention itself. Let me explain,The crucial time period for ratification

lasted from late 1787 through the events ofthe summer of 1788. Formally and techni-cally, the number of states required was

nine, but everyone knew that if the newRepublic was to have a chance, the Con-stitution would have to be ratified by cer-tain key states, including New York, Mas-sachusetts and Virginia. Very quickly, na-tional leaders divided into two camps, theFederalists who supported the new Consti-tution, and the anti-Federalists who op-posed it. The anti-Federalists included

such luminaries as George Mason, PatrickHenry and Richard Henry Lee of Virginia,Samuel Adams and Eldridge Gerry ofMassachusetts; and Luther Martin ofMaryland. They were distressed over thefact that this secret convention, authorizedonly to modify the Articles of Confedera-tion, had instead established an entirelynew form of govemment. Worse yet, itwas a national government-with some ofthe very centralizing features and powersthat the Articles of Confederation just a

few years before had been deliberately de-signed to avoid. Indeed, many felt that thisnew document would lead us back on apath to monarchy.

The Federalists' efforts to secure ratifi-cation were led principally by Madisonand Hamilton, who, with some help from

John Jay, published under the pseudonym"Publius," a series of 85 essays titled "TheFederalist." Those essays are today notonly the most authoritative sources for de-termining the original intent of the Found-ing Fathers; they are also part of our na-

tionalliterary treasure store,

The anti-Federalists rather quickly fo-cused their attack on the lack of a "Bil of

Rights." For both sides, the Bil of Rightsissue was more tactical than substantive,All assumed that if the anti-Federalistssucceeded in sending the entire Constitu-tion into a second convention to consider

JunelJuly 1991 11

including a Bil of Rights, a second con-

vention would not have the advantage ofsecrecy that the first had enjoyed, and theproponents of a new Constitution could,therefore, probably not duplicate the seriesof compromises on which their work ofthe summer 1787 had depended. In short,a new convention would mean no consti-

. tution at all, and both sides understoodthat the battle over a Bil of Rights wasreally a battle over the Constitution itself.

Once again, it was a compromise thatcarried the day, but this time a proceduralone: Following the Massachusetts lead inearly 1788, the crucial state conventions

ratified the Constitution as it stood, but ac-companied it with the addition of someproposed Bill of Rights amendmentswhich Congress could consider after ratifi-cation. Given the closeness of the votes inMassachusetts, New York and Virginia, itis quite clear that without this ratification-now-Bil-of-Rights-later compromise, ourConstitution would never have come intoexistence. And yet, when the first Con-gress convened in April 1789, most of itsmembers were inclined to consider virtu-ally any matter of business other than theBil of Rights. If not for the constant pres-

sure of one man, James Madison, then amember of the House of Representatives,the. first Congress might never have en-acted a Bil of Rights. (Ironically, Madi-

son had been defeated for the Senate byRichard Henry Lee, who had opposed theConstitution.) In all three phases of ourconstitution-making, therefore-drafting,ratification and adding the Bill of Rights-Madison was the central figure. He trulydeserves his title, the Father of our Consti-tution.

What, then, is this Constitution, whichMadison and Hamilton and others laboredso diligently and precariously to bring

about, and whose bicentennial we havebeen celebrating over the past four years?In the most elementary sense, the answeris that it is a part of our American body oflaws, and laws are the rules by which wegovem ourselves. But out of all the rulesof conduct that rise to the level of law inour society, the Constitution is different inseveral respects. I wil mention just two,and they are interrelated.

First, the Constitution is supreme overall other law. That means that in the eventthere is any inconsistency between the

provisions of the Constitution and law thatstems from any other source, the other lawis invalid for that reason alone. That iswhat we mean when we say that laws are"unconstitutional. "

The second distinction is one that isnot often talked about but is very impor-tant and is related to the first. As com-pared to any other kind of law, including

statutory, regulatory or judge-made com-mon law, constitutional law (at least bythe formal processes specified by the Con-stitution itself) is very diffcult to make orchange. Consider this: In 200 years, wehave added only 26 amendments. The first10, which include a large share of ourmost important constitutional provisions,were enacted in just a little over two years.But since that time, of the literally thou-sands of constitutional amendments thathave been proposed, only 16-an averageof eight per century-have actually be-come part of our constitutional law. Andof those 16, two have cancelled each otherout, the majority have dealt with relatively

t'The central feature of the

American Constitution is

that with only one exception,

it's provisions are confined

to limiting the powers of

government. tt

unimportant matters, and only one, the

14th, has an importance comparable to

some of the provisions that were adoptedbetween 1787 and 1791.

The central feature of the American

Constitution is that with only one excep-tion, its provisions are confined to limitingthe powers of govemment. The single ex-ception is the Thirteenth Amendment,

which prohibits slavery and involuntaryservitude, and therefore necessarily gov-ems relationships between private, non-governmental people and entities. Withthat single exception, the Constitution

leaves untouched those vast bodies of

other law which regulate the rights and ob-ligations that individuals, groups and insti-tutions owe to and enjoy from each other.I suspect that the great majority of Ameri-cans don't know that. It follows that whenwe speak of our constitutional rights, weare necessarily speaking of rights that weenjoy vis-a-vis government, either nation-al, state or locaL. The Constitution is silentwith respect to rights that we might enjoy

vis-a-vis our employer, our neighbor, orany other non-governmental person or en-tity who infringes on our interests in anyway other than the imposition of slaveryor involuntary servitude, neither of whichhas been a terribly pressing issue over thepast century and a quarter.

The Constitution is, in short, a limita-tion on government. It accomplishes itsgovemmental -authority -confining missionin two basic ways, and with the exception

of the Thirteenth Amendment, every pro-vision of the Constitution, in my opinion,falls into either one or the other of thesetwo categories of limitations on govem-mental power.

The first category is the obvious one.The Constitution contains some fairly ob-vious, though not always specific, prohibi-tions concerning what government-federal, state or local--an do to its citi-zens. Some of the most prominent are pro-tection for the criminally accused, such asthe privilege against self-incrimination,protection against unreasonable searches

and seizures, the right to counsel and jurytriaL. The best known of the non-criminalprotections are contained II the FirstAmendment, most of whose guaranteespertain to some form of free expression,and include freedom of speech and press,freedom of assembly and the free exerciseof religion, (Interestingly enough, the onlynon-expression right contained in the FirstAmendment is a structural provision, theso-called establishment clause, which

deals with relationships between govem-ments and religious organizations.) Andalthough the original Constitution was

criticized by the anti-Federalists for itslack of a bill of rights, it actually con-

tainedseveral important limitations ongovernment designed solely to protect in-dividual rights, such as the prohibitions

against bills of attainder and ex post factolaws, the habeas corpus guarantee and thecontracts clause.

The other way that the Constitutionlimits govemmental powers is more sub-tle, not as well-known, but equally impor-tant and equally effective. It consists of acombination of two separate structuralprovisions.' They are structural provisionsin that they protect the individual against

governmental power not by overtly pre-scribing what government cannot do, butrather by creating separate govemmentalunits that compete for govemment power.By spreading the powers of govemmentamong several separate entities and bymaking each a competitor with the others,there is a lesser likelihood that any ofthose entities can ever acquire power in

12 Vol. 4 No. 6

1

sufficient measure to become oppressive,The Constitution accomplishes this divi-sion lof power along two dimensions, onehorizontaI and one verticaL.

First, it divides powers horizontally

among three separate branches of the fed-eral government. This breaking up of gov-ernmental authority among separatebranches of the federal government was,in a very real sense, the first order of busi-ness for the 1787 Constitution-makers.

Thus, in Article I, they created a Legisla-tive Branch (Congress) and gave it thepower to make laws; Aricle II created anExecutive Branch (the President) who ischarged with the responsibility "that thelaws be faithfully executed"; and then Ar-ticle II created the third branch (the fed-

eral courts), whose duty it is to interpretthe laws,

The Constitution also divides power,in a quite different way, vertically, be-tween the federal government on the onehand and the various state governments onthe other, Moreover, it gives each of thesecompetitors a power feature that the otherdoes not have. That is, the Jaw-making au-thority of the states is broader because thepowers of the federal government are con-fined to those that the Constitution itselfspecifically authorizes any of the theebranches to exercise, or powers that can befairly implied by those specifically enu-

merated powers. But within its narrowersphere, federal law trumps state law when-ever the two come into conflict. In sum-mary, therefore, under this constitutionalvertical division of authority, which wecall federalism, the federal Jaw is more po-tent and within its confined sphere pre-

vails when, as frequently happens, the twocome into conflct, but the total package ofstate powers is larger.

I believe that these interlocking struc-

tural features:-separation of powers andfederalism--lie at the core of why ourconstitutional system of government hassurvived and served us so well over twocenturies. Both are simple in their basicprecepts. But in their actual operation,

they can only be described as genius fea-tures. The reason is that over the long runof our nation's history, they have managedto maintain a balance of power both withinthe federal government and also betweenour two systems of government that haseffectively protected our individual Iiber-ties in ways that are more subtle, but inmy view just as effective, as the better-known guarantees contained in the Bil ofRights.

And they do soin ways that affect allof us, For example, at the bottom of the

tussle last January between Congress andthe President, over the content of a Con-gressional resolution concerning our in-volvement in the GuIf conflct, was a rock-solid separation of powers issue, Amongthe powers that the Constitution splits upamong different governmental entities arethose that pertain to our ability to makewar. In Iraq, Saddam Hussein called allthe shots by himself. But in this country, ittakes some cooperative effort between atleast two govemmentaI competitors. Iraq'ssystem is more efficient, but ours is betterdesigned to assure against arbitrary and ty-rannical government. And that's why Iconclude that these structural features re-ally amount to a genius system,

One of the most important features ofthe American Constitution, both in theoryand in practice, is the magnificent breadthof its most important provisions, notably

the commerce clause, most of the Bill ofRights guarantees, and the FoureenthAmendment's due process and equal pro-tection clauses. The lack of specificity ofthese and other provisions has almost cer-tainly been essential to the abilty of this

document drafted in 1787 to survive over200 years of the largest and most unantici-pated change that any country at any timehas ever experienced.

And yet there is another edge to thisgenerality. Someone has to be vested withthe final authority to determine what theConstitution means when its provisionsare applied to concrete practical facts,many of which were totally unanticipatedat the time of the Constitutional Conven-tion. For example, how, if at all, is theauthority of the states to regulate the

lengths and weights of trucks on interstatehighways precluded by Congress constitu-tional authority "to regulate commerce . . .among the several states?" In 1787, fewpeople were thinking about interstate high-ways or trucks. Similarly, the Constitutionguarantees against infringements on freespeech. What does that guarantee do, ifanything, to state laws providing recoveryfor libel and slander? And what is speech?Any form of expression? Does it includeflag buming? If so, is there a differencebetween burning flags and burning. draftcards? Or sleeping in tents as a protestagainst homelessness? And what about thecontroversy over the refusaI of the Na-

tional Endowment for the Arts to givegrants to projects or works that it consid-ers obscene? Does the Constitution requirethat so Iong as NEA gives grants to any-one, it not exclude those that it considersobjectionable?

You can read the Constitution verycarefully, and not find, even in a footnoteor an annotated version, any answer to anyof those questions. Each of these is a formof expression, and yet none of them useswords. Speech or not? First Amendment-protected or not? Different people wouldgive different answers to these questions,

And even where the test is more spe-cific, questions of interpretation stil re-main. For example, how much could Pres-ident Bush have done in the Persian Gulfwithout a formal Congressional declara-

tion? In this case, Congress acted, but inother crucial instances, such as the CiviIWar, Korea and Vietnam, Congressional

action was either absent or less decisive,The Constitution states unequivocally, andquite specifically, that "the Congress shallhave power. . . to declare war . . . . " Yetin language that is equally unequivocal

and equally precise, Article II states that"the President shall be Commander-in-Chief of the Ary and Navy of theUnited States . , . . " Did Presidents Lin-coln, Truman, Johnson and Nixon act un-constitutionally or were they within theirAricle II powers?

Nothing in the text of the Constitution,and nothing in its history, provides the an-swer to those and many other practicalquestions that arise every day. But if ournation is to survive as a functioning con-stitutional republic, someone has to saywhat these broad, general provisions of theConstitution really mean. Since the issueis one of interpretation, common sensetells us that the Constitution is amòng thelaws that the courts interpret, and thatcommon sense view is supported both by187 years of actual practice and also bythe most authoritative piece of constitu-tional history on this issue, No, 78 of theFederalist Papers, authored by Hamilton.

There are some consequences of thisjudicial power to interpret the Constitutionthat are a concern to many people, Itmeans that five people-a majority of theSupreme Court-have the power not onlyto interpret the Constitution, but also ef-'fectiveIy to amend it if they choose to doso, with little effective power by Con-gress, the President or the people to re-verse what the Court does in any particularcase.

As Iarge and as real as that concern is,it needs to be tempered by two facts. Thefirst is that it is fairly clear to me that thispower of judicial review-the authority ofthe courts to have, the last word onconstitutionality-was intended by the1787 framers, though they did not explic-itly say so. By combining the power of

J unelJ uly 1991 13

judicial review (which, as HamiIton says,they probably did intend) with the very

broad language that the Founding Fathersused in the Constitution's most importantprovisions, the expansive judicial powerthat comes from judicial review was, in asense, part of the "original intent" of the

1787 framers,Second, there is, over the long run, a

responsiveness between the wil of the

people and the content of our constitu-tional Iaw. This comes about through thepower of the President to appoint mem-bers of the federal judiciar. Indeed, as ev-ery recent President since Eisenhower hasexplicitly observed, one of the most im-portant acts of any President-some havesaid, the most important-is to appoint

members of the Supreme Court, whose av-erage tenure has been several times that ofour Presidents.

When we vote for a President, there-fore, we are doing more than picking theperson who wil lead us in war and peace,and have access to Camp David and AirForce One, We are also in effect making adecision as to what kind of persons wewant on the Supreme Court, and indeed,all federal courts. Our nation's history overthe last half century demonstrates this fact.Particularly ilustrative are the eight

Roosevelt appointments in the late 1930s

and early '40s, and Nixon's four appoint-

ments between 1969 and 1972. While bothof these Presidents, and others, were prob-ably disappointed in some of their appoin-tees, as a group those appointed by

Roosevelt and aIso Nixon reflected theviews of the President who appointed

them, and presumably the people whoelected the President. Most important ofall, both the Roosevelt and the Nixon ap-pointees have had large effects on all of usthat wil last for decades, and in many in-stances, forever.

While I am of course not privy to theactual subjective views of the FoundingFathers, my guess is that if they could seewhat has resulted from their efforts, theywould say that their work product of thesummer of 1787 has succeeded far beyondnot only their expectations, but even theirhopes, Those of us who have been aroundto reap the benefits of those efforts aregrateful to them. We now enter our thirdcentury of constitutional government. Andthough not too many of us wil be aroundto observe the tricentennial of this mostperfect and successful of all constitutions,we can be grateful that over our lifetimes,and the lives of generations of Americansto come, we wil continue to enjoy its ben-efits.

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Vol. 4 No. 6

i

The Attorney General,The Constitution, and Y ou

Exactly 204 years ago this May in1787, the men we now reverentlyrefer to as "the framers" convened our na-tion's Constitutional Convention in theCity of Philadelphia. Five months later,the framers emerged from this conventionwith the most remarkable governmental

charter in the history of humankind, Butmany of us forget that this document,which we acknowledge as a masterpieceof statesmanship and political craft, con-tained none of the protections that peoplemost clearly associate with our Constitù-tion. The constitutional document submit-ted to the states in September of 1787 con-tained no Bil of Rights.

In fact, the bil of rights proposed nearthe end of the convention was unani-

mously voted down, and statesmen of thestature of Alexander Hamilton and RogerSherman vigorously argued that a Bil ofRights in the federal Constitution was anunnecessary limitation on the power ofgovemment because eight of 13 states al-ready had some form of a bil of rights,

It was out of the vigorous, and often-

times bitter, debates in the State Legisla-tures during the yearlong ratification pro-cess that the people's demand for a Bil ofRights came to be heard. The promise ofsuch a bil became tantamount to a condi-tion of ratification of the Constitution it-self, Congress and the States fulfiled thatpromise three years after ratification of theConstitution. As a result, this year on De-cember 15, we can celebrate the 200th An-niversary of the ratification of the first 10amendments to our federal Constitution-the Bil of Rights,

However, today, just as it was 200years ago, the Bil of Rights is not alwaysthat popular. As those of us in law en-

By Attorney General Paul Van Dam

ATTORNEY GENERAL PAUL V AN DAM waselected in 1988. He served as Salt Lake

County Attorney from 1974 to 1978. AttorneyGeneral Van Dam has 12 years of prosecutionexperience and 10 years of civil litigation ex-perience. He received his law degree in 1966from the University of Utah.

At the beginning of his term, Attorney Gen-eral Van Dam restructured the office to in-clude new programs and to strongly empha-size enforcement in. environmental cleanup,investor fraud, and consumer protection. Hissuccessful appeal to the Legislature for signif-icant funding of new lawyers, new programs,and dramatic salmy increases has made theoffice a leader among public law offices inUtah and the Rocky Mountain area.

Attorney General Van Dam is married toRandi Wagner, a nationally recognized artist.He is also an accomplished musician and is

principal singer and guitarist in a band oflong standing in Salt Lake County.

forcement are keenly aware, the Bill ofRights protects bad people as well asgood. This can cause problems, as ilus-trated by the following thought-provokingdiscussion from the American Bar Associ-ation:

"We've all seen headlines: "Released Mur-derer Kils Again"; "Drug Kingpin Re-

leased on Technicality." Many peoplecomplain that our jails are equipped withrevolving doors. They claim that prisonersare released too soon-that they are backon the streets committing new crimes (al-most as quickly as we put them in jail). Asnumerous news reports indicate, our jailsare more crowded than ever. The construc-tion of new prison facilities is proceedingat a record pace and yet, in some places,

the new jail wil be overcrowded almost assoon as it is completed. The incarcerationrate of individuals in this country is highertoday than in any other westem nation,Recidivism rates-the rates at which re-leased prisoners commit new crimes-aredisturbingly high,

Drug-related kilings on the streets ofWashington, D.C. have earned it the title,"The Murder Capitol of America." Popularsupport for capital punishment is greaternow than at any time in recent history. Al-though strong law enforcement measures

have failed to deter drug-related crime,

frequent calls are heard for new harshermeasures to crack down on drug offend-ers. Proposals abound to speed up the pro-cess of removing alleged offenders fromthe streets and putting them in jaiL. "Pre-ventive detention" is a new term in ournational vocabulary. It describes the incar-ceration of an individual awaiting trial inorder to prevent offenses from being com-

JunelJuly 1991 15

II

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mitted. The list of criminal cases waiting,tobe tried is so long in many states thatjudges who normally hear civil cases havebeen transferred to criminal court. Theglut of cases awaiting trial has precipitateda crisis in the criminal justice system

which has led some to question whether

we, as a society, can afford to continue toprovide the rights of the accused guaran-teed by the Bil of Rights. There is a priceto pay for processing these cases. Al-

though the cost of maintaining the judicialsystem is substantial, both civil and crimi-nal justice activities amount to less than 3percent of all government spending in theUnited States. A few years ago, this com-pared with 20.8 percent for social insur-ance payments, 18.3 percent for nationaldefense and foreign relations, and 10.9percent for interest on govemment debt.

Yet there is no doubt that a significantportion of the American people feel thatthe system "coddles criminals." They areconcemed that so-called "technicalities"allow the guilty to go free and inflct fur-ther violence on the general public. Theyfear that restrictions on police conductsuch as the Miranda wamings, requiringpolice to caution defendants about theirright to counsel and to remain silent, un-dermine law enforcement. They expressoutrage that an individual caught "red-

handed" with ilicit drugs or a weapon

used in a crime is freed by the courts be-cause the search which produced the evi-dence was ilegaL. They are unhappy thatadmitted criminals are freed too soon be-cause their lawyers succeed in plea bar-gaining. A newspaper columnist recentlydescribed the plea negotiation process as

"one of the great abominations of the

American criminal justice system."The American public may be surprised

to leam that their views generally conflictwith those of criminal justice profession-

als. Both law enforcement and defense ad-vocates share the opinion that basic consti-tutional protections do not in any signifi-cant way diminish the effective operationof the criminal justice system. In 1986, theAmerican Bar Association Criminal Jus-tice Section formed a Special Committeeon Criminal Justice in a Free Society tohold hearings and survey criminal justiceprofessionals. The Committee, chaired byformer prosecutor Samuel Dash, focusedon the problems of the system and the ex-tent to which the need to observe constitu-tional protections impedes its operation,Parenthetically, lack of sufficient re-sources was identified by all of the surveyrespondents as the major problem facingthe criminal justice system. The Commit-

¡'I

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:1

tee stated that, "The entire system is

starved: police, prosecution, criminal de-fense, courts and corrections."

The broad standard applied by ourconstitutional system in judging whetheror not our criminal justi'ce apparatus isworking properly i. one of "fundamental

fairness." This concept is embodied in theFourteenth Amendment requirement thatno individual be deprived of life, liberty orproperty without due process of law. Thedue process clause incorporates certainfundamental requirements: freedom fromunreasonable searches, the right to ade-quate representation by counsel, a fair andspeedy trial, the right to be free from self-incrimination and the freedom from crueland unusual punishment. A denial of anyof these rights is deemed to be a violationof "fundamental fairness" as required bycontemporary civilzed standards of jus-

t'Both law enforcement and

defense advocates share the

opinion that basic constitu-

tional protections do not in

any significant way diminish

the effecti~e operation of the

criminal justice system. /I

tice. Are these standards too strict? Are wereleasing too many guilty people? Is thepromise of fundamental faimess an ilu-sion for the poor of our nation? These arequestions with which our judges and otherpublic officials must wrestle constantly.

Benjamin Franklin once said, "He whowould surrender freedom for a little bit ofsecurity deserves neither freedom nor se-curity. Where should we draw the line?"

Where do we draw the line? This is animportant question for me personally be-cause, in 1988 when I was elected Attor-ney General of the state of Utah, I took anoath to "support, obey and defend the

Constitution of the United States and the

Constitution of this state." While that oathis brief and simple in its wording, it is infact a complex task in everyday reality.Much is required of the Attorney Generalto fulfil the promise to support and defendour Constitutions. I can give several exam-ples.

Last year the Salt Lake County Attor-ney asked our offce to give an opinion ofthe constitutionality of a law that automat-ically excluded from their own homes, forup to four days, anyone cited or arrestedfor domestic violence. We said the law de-prived accused persons of their liberty andproperty without due pr~cess of law andso violated the protections of both the Fed-eral and State Constitutions. Although wehelped develop a compromise bil thisyear which accomplished largely the sameprotection for victims of domestic vio-

lence, in the meantime, our opinion andour office were loudly criticized for pro-tecting the rights of abusers at the expenseof the safety of women.

In another case last year, schools inSalt Lake and Utah counties were sued forallowing prayer at graduation exercises

and other school activities in alleged vio-lation of the First Amendment prohibitionsagainst establishment of religion. At thesame time, a school in Washington Countywas sued for not allowing prayer at gradu-ation in alleged violation of the FirstAmendment's protection for the free exer-cise of religion. Our office filed a briefamicus curiae with the U.S. SupremeCourt describing for that Court the real-life predicament faced by our school sys-tem brought on by the unresolved tensionbetween two clauses in the First Amend-ment of the Bil of Rights and their appli-cation to school graduation prayer. With-out taking a position on the issue of gradu-ation prayer, our brief asked the Court toresolve the constitutional dilemma. Thislast month we were sued for our troubleand accused of violating the State consti-tutional protections against expenditures

of public monies for religious worship oreducation purposes. This suit raised thequestion of whether the Utah State Attor-ney General can ever go to court to litigatea First Amendment establishment clausecase without violating the State Constitu-tion.

In addition, our office represents the

State Board of Pardons, Three months agoour courts ruled for the first time that in-mates are entitled to due process rights,including rights to counsel and appeal, athearings before the Board of Pardons.

(Foote v. Board of Pardons, 156 Ut AdvRptr 3 (Utah 1990). Like the rulings out ofthe Warren Court expanding the rights ofthe criminally accused to counsel, this rul-ing of the Utah courts found heretofore

unknown rights in our Constitution whichbenefit the despised of our society and

which wil undoubtedly need to be fi-nanced at great cost and expense to middle

f'

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I

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16 Vol. 4 No. 6

and upper class citizens, The question ofhow the LegisIature wil respond to thisnew demand for the financing to securethese new rights is yet to be resolved.

In each of the above-described real-lifecases, the tension between what the gov-ernment wants to do and what the Federaland State Constitutions wil Iet them do isevident. The support of our people for theBil of Rights in each of these cases is

sometimes less evident, sometimes clear,and sometimes shifting. At times it ap-pears that the public wil would favor"suspending" one or another of the clausesof the Bil of Rights to secure a particular

short-term objective. It is at those times

that an elected official like the AttorneyGeneral, charged by his oath and by law todefend the Constitution, can find himselfin a paricularly uncomfortable position. Ihave felt this discomfort on more than oneoccasion during my term in office.

Nevertheless, I believe that this consti-tutionally created tension is not only inevi-table but necessar and healthy in a demo-cratic government. I believe that each ofthe Amendments in the Bil of Rights

which embody our most precious free-doms are not any more susceptible of roteinterpretation or automatic application to-day than they were 200 years ago whenthey were adopted only after impassionedand vigorous debate. Those debates cap-tured and focused the attention of ouryoung nation on some of the most difficultproblems of democracy. Those debateswere necessary then and even the Federal-

ists had to admit that they resulted in abetter Bil of Rights than was originallydrafted,

Those debates need to be held now andin the future so that each new generationcan redecide for themselves the troublingand difficult questions of how best to pre-serve liberty without sacrificing all dignityor security. As wiseIy noted by JusticeJackson: "There's no such thing as anachieved liberty; like electricity, there canbe no substantial storage and it must begenerated as it is enjoyed, or the lights goout." ("The Task of Maintaining Our Lib-erties: The Role of the Judiciary," RobertH. Jackson 39 American Bar AssociationJournal, 961, 962 (1953).

And likewise, the question of the costand value of providing the rights in ourConstitution to all in our society needs tobe answered again by each new generationof taxpayers. It is for each citizen, as a partof their own education about liberty, itscost and its true meaning, to judge the

truth of the statement by Justice Felix

Frankurter:"It is not only under Nazi ruIe that policeexcesses are inimical to freedom. It is easyto make light of insistence on scrupulousregard for the safeguards of civil libertieswhen invoked on behalf of the unworthy.. , ,History bears testimony that by suchdisregard are the rights of liberty extin-guished, heedlessly, at first, then stealthi-ly, and brazenly in the end."Davis v. United States, 328 U.S. 582, 66S. Ct. 1256, 90 L.Ed 1453 (1946).

. In fulfiling my oath as Attorney Gen-eral it is my duty, when the provisions ofour Federal or State Constitutions are

challenged, to weigh in on behalf of the

people in defense of the charters of ourgovernment. In that role I can tell you thatI have felt the heat of impassioned argu-

ment and angry debate over our constitu-tional rights in the courts of our land. Ihave seen and been a part of the ongoingbattle to redefine or reconfirm the mean-ing of the words that set out our constitu-tional rights. I can tell you that it is a mon-umental struggle which is fought in yourname and in your interest and goes on ev-ery day, It is a struggle that is not limitedto courts or capitols, but is waged mightilyin PTA meetings, city councils, and wher-ever we discuss taxes, rules and matters ofcivic governance.

It is a strggle that is worthy of yourtime and attention and that of your chil-dren. Whether any of us like it or not, theConstitution is a living document that issubject to reinterpretation by our courtsand amendment by Congress and our StateLegislatures. And the decisions finallymade in those lofty forums are pre-figuredby the many smaller struggles waged inhomes and communities throughout ourcountry.

It is my belief that the more of us thatparticipate fully in those struggles the bet-ter for our freedom, the better for our gov-ernment and the better off we all wil be.

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17

The Bill Of RightsPermits Graduation Prayers

IJ

Thank God for the blessing of cele-brating the Bicentennial of the

Bil of Rights.

During each of these 200 years we

have been protected in our public prayersin:

1. Our Federal Courts' "God save . . .this Honorable Court" (Marsh v.Chambers, U.S. 783, 786 (1983));

2. Our Legislative branch of govern-

ment in opening each session of Congresswith prayers (Marsh, supra.);

3. Our Executive branch of govem-

ment with its repeated proclamations ofthanksgiving and requests for other specialprayers and its many prayerfulceremonies-presidential inaugurations,for example (Lynch v. Donnelly, 465 U.S.668,675 (1984); 36 U.S.c. 169.);

4. Our Armed Services and prisons(Engel v. Vitale, 370 U.S. 481 (1962)Stewart dissent footnote 4); and

5. At least in the Fifth and Sixth Cir-cuits, our prayers in public high school

graduation exercises. (Jones v. Clear

Creek Independent School Dist., 930 F. 2d416 (18Apr., 1991) Stein v. PlainwellCommunity Schools, 822 F.2d 1406

(1987)).Wil the present U.S. Supreme Court

stay the course and allow senior students

in high school to choose one of their peersto act as mouth for them in expressing

gratitude to God, in prayer, at voluntary

public high school graduation exercises? Ithink it wilL.

With all the high school graduation

prayers throughout the country each year

there has never been a case brought to theSupreme Court dealing with this issue.Perhaps a 17-year-old's prayer has notrisen to a Constitutional crisis. The Courtrecently granted certiorari in a Rhode Is-land case having to do with a Rabbi pray-ing at a graduation exercise in a public

school for children not yet old enough to.

18

If

II

By Oscar W. McConkie

OSCAR W. McCONKIE, JR. is president ofKirton, McConkie & Poelman, P.C. He is aformer president of the Utah State Senate andChairman of the Utah State Board of Educa-tion. He has served as co-chairman of the Li-aison Committee of the Utah State Board ofRegents and State Board of Education, andchaired the governor's School Finance Incen-tives Committee from 1987 to 1989. He hasbeen on a number of other government and

civic committees and was a county attorney.He received his BS and JD degrees from theUniversity of Utah. His law practice includes

national and international representation ofreligious organizations as well as general liti- \gation. He has written several books and arti-cles. Mr. McConkie's firm represents the Al-pine School District in the graduation prayerlitigation.

go to high schooL. (Robert E. Lee, individ-

ually and as principal. . . v. Daniel Weis-man, etc., U.S. Sup. Ct. Oct. Term, 1990).In that case the Court may say somethingabout young adults attending high schools,The Court has treated pre-high schoolchildren differently than young adults in

high school as far as constitutional rightsare concemed. (Tinker v. Des Moines, 393U.S. 503 (1969)).

We are a religious people. A 1991 na-tional poll shows that "86,5 percent ofAmericans identified with Christian de-nominations. "

(Salt Lake Tribune, 22 April 1991).The article and poll do not mention the

many other persons identifying with otherreligious faiths.

Our federal papers accept the existenceof God. "In the name of God, Amen" com-mences the Mayflower Compact. TheDeclaration of Independence is premised

upon the concepts that we, our equalities,and our liberty, are dependent upon God.Mr. Justice Douglas, speaking for theHigh Court said it best.

We are a religious people whoseinstitutions presuppose a SupremeBeing. We guarantee the freedom toworship as one 'chooses. We makeroom for as wide a variety of beliefsand creeds as the spiritual needs ofman deem necessary, We sponsor anattitude on the part of govemmentthat shows no partiality to anyonegroup and that lets each flourish ac-cording to the zeal of its adherents

and the appeal of its dogma. Whenthe state encourages religious in-struction or cooperates with religiousauthorities by adjusting the scheduleof public events to sectarian needs, itfollows the best of our traditions. Forit then respects the religious nature

of our people and accommodates thepublic service to their spiritual needs.To hold that it may not would be tofind in the constitution a requirementthat the govemment show a callousindifference to religious groups, Thatwould be preferring those who be-lieve in no religion over those who

(continued on page 20)

i

I

'I

;,1

11

.1

IIII

Vol. 4 No. 6

: CONSTITUTIONAL? PRO ICON . '.I

Graduation PrayerViolates the Bill of Rights\

J

~

1

Of all the issues the ACLU takeson-reproductive rights, discrimi-nation, jail and prison conditions, abuse ofkids in the public schools, police brutality,to name a few-by far the most volatileissue is that of school prayer. Aside fromour efforts to abolish the death penalty, itis the only issue that elicits death threats.

As the director of the ACLU and anon-lawyer, I am in the legal world butnot exactly of it. I spend much of my timeinterpreting constitutional principles andcourt decisions to other civilans through

speeches to the Rotary, television debateswith cynical govemment officials, mara-thon talk radio sessions and quixotic ef-forts in the echoing halls of the Legisla-

ture. Best of all, though, are conversationswith kids in the schools, clubs and churchgroups.

At least one student always asks whythey can't vote on whether to have prayersin the schools-and, perhaps rightly, moststudents do not distinguish classroom andactivities prayers from graduation prayers.To pray is to pray is to pray. "And if somestudents don't like it, they can leave."

The issue for them is, "The majorityrules." While the democratic principle iscertainly one of two great foundational

principles of American. govemment, un-fortunately the second, balancing princi-ple, i.e., the libertarian principle, is neitherwidely understood nor accepted: "The ma-jorityrules, but not always." I try to ex-plain to students that the principles mainlyenshrined in the Bil of Rights were con-sidered so bedrock by the founders as

needing to be protected from the transientwhims of the opinion polls or "majorityrules."

This, I tell the students, is just as truewith the two parts of Freedom of Religionas it is for whether or not accused personsshould get a fair triaL. They simply are not

JunelJuly 1991

By Michele A. Parish

MICHELE A. PARISH graduated from theUniversity of Iowa in 1973 with a B.A in En-glish. She did graduate work in theology andpastoral counseling at the School of Theologyat Claremont in 1975.

Michele joined the ACLU of Utah in 1987as the Staff Associate. After a year and a halfshe was appointed to replace the ExecutiveDirector who transferred to the FloridaACLU.

In 1990, the Utah NOW (National Organi-zation for Women) presented Michele withtheir Women of Courageous Action A ward forher leadership in opposing censorship, im-

proving jail and prison conditions, and keep-

ing abortion safe and legal.The Utah Women's Political Caucus has

announced that it wil present the 1991 SusaYoung Gates Award to Michele Parish for her

work on behalf of women at its June 15awards ceremony.

Michele is the mother of two daughters,

ages 9 and I2.

matters to be voted on. In short, freedomof religion is for everyone or it is for noone.

They also do not understand the cru-

cial distinction of state action, that whatthey are free to do in their own churches,the state is not free to endorse and/or co-erce. Just as the govemment cannot pro-hibit them from praying in their churches,it cannot force people to pray in state-runschools,

The Lemon Test: A Case, Not a CurseThe unfortunately named three-

pronged Lemon test (Lemon v. Kurtzman,1971) is still the law of the land, despitemuch wishful thinking by those who wishto re-institute prayer (and Bible readingand moral instruction and proselytizingand on and on) in the public schools,

In a nutshell, the criteria to be an..

swered are:-Does the practice have a secularpurpose?-Does it have a neutral effect onreligion?-Does it unnecessarily entangle thegovernment with religion?The practice has only to fail one prong

to be declared an unconstitutional viola-tion of Freedom of Religion.

Does prayer in the classroom, at schoolactivities or during graduation exerciseshave a secular purpose?

By definition, it is not credible to saypraying has a secular purpose. To create asolemn tone or quiet a crowd, one couldring a bell, say the Pledge of Allegiance orplay a flute. And goodness knows, thereare mountains of bad poetry written forjust such a purpose. To say that it is mean-ingless exercise in ceremony should be of-fensive to every person who is engaged inreligion.

Pass ,/Fail

(continued on page 22)

19

PERMITS GRADUATION PRAYERS (continued from page 18)

ii

do believe. Government may not fi-nance religious groups nor undertakereligious instruction nor blend secu-lar and sectaran education, nor use

secular institutions to force one orsome religion on a person. But wefind no constitutional requirement

which makes it necessary for govern-ment to be hostile to religion and tothrow its weight against efforts towiden the effective scope of religiousinfluence. The government must beneutral when it comes to competitionbetween sects.(Zorach v. Clausen, 343 U.S. 306, 313-

14 (1952)).

This landmark case has become one ofthe most cited authorities in the annals ofthe Supreme Court interpretations of theEstablishment of Religion Clause. It is thelaw of the land.

In a 1987 case unsuccessfully argued

by the Utah ACLU, a unanimous U.S. Su-preme Court held:

"This Court has Iong recognized

that the government may (and some-times must) accommodate religiouspractices and that it may do so with-out violating the EstabIishment

Clause." (Hobbie v. Unemployment

Appeals Comm'n of Fla. 480 , ,

(1987) (footnote omitted), It is wellestablished, too, that '(t)he limits ofpermissible state accommodation toreligion are by no means co- exten-sive with the non-interference man-

dated by the Free Exercise Clause.'Walz v. Tax Comm'n, 397 U.S. 664,673 (1970). There is ample room un-der the Establishment Clause for 'be-nevolent neutrality which wil permitreligious exercise to exist without

sponsorship and without interfer-ence.''' (Corporation of PresidingBishop v. Amos, 483 U.S. 327

(1987)).Apparently the first case to address the

constitutionality of graduation prayer wasWood v. Mt. Lebanon Township SchoolDist., 342 F. Supp. 1293 (D.Pa. 1972).

The court held that the prayer did not vio-Iate Establishment Clause standards. Thiscourt said:

Graduation ceremonies are purelyvoIuntary; there is absoluteIy no

compulsion attached to attending thegraduation to be eligible to receive adiploma. . . (G)raduation ceremonies. . . are just that, i.e., they are cere-monial and are in fact not a part ofthe formal, day-to-day routine of theschooI curriculum to which is at-tached compulsory attendance. Id. at1294.

20

In Grossberg v. Deusebio, 380 F. Supp285 (D. Va. 1974) another federal courtreached the same result reasoning that ahigh schooI graduation ceremony was "apublic school event" distinguishable fromdaily classroom instruction. The cour ac-knowledged that whiIe "some may be of-fended by what is said, (the court) is notconvinced that the Constitution protectsindividuals from this type of offense." Id.at 290.

More recently, in Stein, supra, a fed-eral appeals court upheld the constitution-ality of graduation prayer:

To prohibit entirely the traditionof invocations at graduation exerciseswhile sanctioning the tradition of in-vocations for judges, legislators andpublic officials does not appear to beconsistent application of the principleof equal liberty of conscience. (Id. at1409).The question presented is whether

government accommodation of religion incivil life violates the Establishment

Clause, absent some form of governmentcoercion.

If the American ideal of consistent ap-plication of equal liberty of conscience isto continue to prevail, the answer must bea resounding "No!" Otherwise, seniors inhigh school would be denied the same lib-erty of conscience enjoyed by others insuitable rites of passage like a graduationwhere those present wish to give deeplyfelt thanks.

The presence ofreligion in public lifewas not considered offensive at the time ofthe framing of the Constitution. Indeed, itwas welcomed so long as that presencewas not coercive and not part of an estab-lishment of an offcial church. For in-

stance, in addressing concerns that a

prayer opening the session of the FirstContinental Congress would be divisive,SamueI Adams stated that "he was no big-ot, and couId hear a prayer from a gentle-man of piety and virtue, who was at thesame time a friend of his country." Quotedin Marsh, supra at 791 -792.

Many of the Nation's founders thoughtthat it was not merely permissible to rec-ognize the role of religion in the Nation's

life but necessary to the very preservationof the Nation. George Washington ex-

pressIy addressed the issue in his farewelladdress, itself, like high school graduation,a ceremoniaI occasion:

Let it simpIy be asked where isthe security for property, for reputa-

tion, for life, if the sense of religiousobligation desert the oaths, which arethe instrum~nts of investigation inCourts of Justice? And let us with

caution indulge the. supposition, thatmorality can be maintained without

religion. Whatever may be concededto the influence of refined educationon minds of peculiar structure, rea-son and experience both forbid us toexpect that National morality can

prevail in exclusion of religious prin-cipIe." (Fitzpatrick, The Writings ofGeorge Washington from the Origi-nal Manuscript Sources, 1748-1799,

Farewell Address at 214,229).Space permits only a sampling of a

few of our National leaders and our Na-tion's best political thinkers,On March 4, 1797, President John Ad-ams said:

And may that Being who is supremeover all, the Patron and Order, the Foun-tain of Justice, and the Protector in all agesof the world of virtuous liberty, continueHis blessings upon this nation and its Gov-ernment and give it all possible successand duration consistent with the ends ofHis providence. (Vitale, supra. Stewartdissent, notes p. 617).On March 4, 1805, President ThomasJefferson said:

. . , I shall need, too, the favor of thatBeing in whose hands we are, who led ourfathers, as Israel of old, from their nativeland and pIanted them in a country flow-

ing with all the necessaries and comfortsof life; who has covered our infancy withHis providence and our riper years withHis wisdom and power, and to whosegoodness I ask you to join in supplicationswith me that He. wil so enlighten the

minds of your servants, guide their coun-cils, and prosper their measures that what-soever they do shall result in your good,and shall secure to you the peace, friend-ship, and approbation of all nations."(Ibid.)On March 4, 1809, President JamesMadison said:

. , , We have all been encouraged tofeel in the guardianship and guidance ofthat Almighty Being whose power regu-lates the destiny of nations, whose bless-ings have been so èonspicuously dis-pensed to this rising Republic, and towhom we are bound to address our devoutgratitude for the past, as well as our fer-vent supplications and best hopes for thefuture. (Ibid.)On March 4, 1865, President AbrahamLincoln said:

Fondly do we hope, fervently do wepray, that this mighty scourge of war mayspeedily pass away. Yet, if God wils. , .

with malice toward none, with charityfor all, with firmness in the right as Godgives us to see the right, let us strive on to

Vol.4No.6

finish the work we are in . . . (Ibid.)On March 4, 1885, President GroverCleveland said:

. . . And let us not trust to human effortalone, but humbly acknowledging thepower and goodness of Almighty God,

who presides over the destiny of nations,and who has at all times been revealed inour country's history, Iet us involve His aidand His blessings upon our labors. (Ibid. at618).On March 5, 1917, President WoodrowWilson said:

. . . I pray God I may be given thewisdom and the prudence to do my duty inthe true spirit of this great people. (Ibid.)On March 4, 1933, President FranklinD. Roosevelt said:

In this dedication of a Nation we hum-bly ask the blessing of God, May He pro-tect each and every one of us, May Heguide me in the days to come. (Ibid.)

I sat on the capitol steps at the inaugu-

ration ceremonies on a cold and snowyJanuary 20, 1961, as President John F.Kennedy said:

. . . the rights of men come not fromthe generosity of the state but from thehand of God , , . . Let us go forth to leadthe Iand we Iove, asking His blessing andHis help, but knowing that here on earthGod's work must truly be our own.

Consistent application of the principleof equal liberty of conscience? Our presi-dents in solemn governmental ceremonialrites of passage can thus inspire; and, theACLU says that young adult citizens can-not emulate the government leaders as thecitizens enjoy their commencement exer-cises?

We are aware of the Iocal ACLU'sfailed attempts to persuade the courts totreat Utahns with a different Constitutionalstandard than that which applies through-out the other states, In Amos, supra, it un-successfully argued that in Utah there

must not be government accommodation

for religious practices, and certainly thereshould be no benevolent neutrality whichwould permit religious exercise to existwithout sponsorship. In Lanner v.Wimmer, 662 F.2d 1349 (1981), comingout of Logan, Utah, and not withstanding

the clear mandate of Zorach, supra, it un-successfully attempted to get the courts tochange the measuring rod for Utahns anddisallow released time for our high schoolseminary students. This is not surprising,coming from those who advertise: "InUtah, they know how to punish a womanwho has an abortion, Shoot her." (NewYork Times, 17 March 1991, reported inDeseret News editoriaI 27 March 1991).

Most Utahns believe II pluralism.With competing views, we are gratefulthat the Bil of Rights provides an even

playing field. It protects us all in our pub-lic prayers.

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J unelJ uly 1991 21

VIOLATES THE BILL OF RIGHTS (continuedfrompage 19)

Does it have a neutral effect, neither ad-vancing nor hindering religion?

I suppose it could be argued that

school prayer has a negative effect on reli-gion, in that the experience of having reli-gion crammed down one's throat oftenIeads to anti-religious tendencies on thepar of the unwiling victims, but thathardly seems the intent of those well-meaning government employees doing thecramming, who generally feel it wil dothe students good. Evidently these officialsdo not have eyes to see'nor ears to hear thepain they inflct on students whose reli-gious views differ from their own. Or per-haps, I hesitate to suggest, they simply

don't care,

Pass ilFail

Does it unnecessarily entangle the gov~

ernment with religion?Officially endorsed and practiced

schooI prayer unavoidably entangles thegovernment with religion, not just threat-ening the wall of separation, but essen.tially establishing religion. In some dis-tricts the schools actively promote one re-ligion over others as "tradition." Teacher-led prayer unavoidably gives the appear-

ance of official endorsement. Student-

given prayer involves choosing students topray and generally includes guidelines(censorship) of their prayers, 'CIergy bringtheir own baggage. At the Ieast, they implygovernment endorsement of religion overnon-religion.

Attempts to neutralize establishmentquestions with "flavor-of- the-month" rota-tion of clergy or denominations bring notonly endorsement v. non-endorsement

problems, but tempt the court to use thestandard of acceptabilty to be a generic

American Civil Religion, a bonecchilingconcept for those of us who oppose theestablishment of religion.

And, of course, the government is en-tangled with religion in the use of statefunds, employees and property for the de-Iivery of these religious activities.

Pass ilFail

Anti-Theocracy Provisions of the UtahConstitution

This brings us to the Utah State Con-stitution, which has more specific anti-estabIishment protections from Freedom ofReligion than the Federal: "No state fundsor property shall be used for religious wor-ship, exercise or instruction, . ."

Given the current standards and stateof the law, the ACLU of Utah felt on verysolid ground in requesting a preliminary

Injunction against prayers in the schools

against the AIpine and Granite School

Districts.I know, these two districts are not the

only culprits by any means. However, be-tween Alpine and Granite School Districtsall of the issues of concern to us were cov-ered, including prayer in the classrooms,

at activities and during graduation exercis-es, as well as the use of state funds for apurely religious baccalaureate service,which teachers were required to produceand attend. Also, in those districts a num-ber of courageous students, teachers andparents contacted us about becomingplaintiffs.

Granite School District utilizes a vari-ety of approaches toward prayer in activi-ties and at graduation. Alpine School Dis-trict has had sectarian Mormon prayers forover 40 years, calls it tradition and sees noreason to change now.

CuriousIy, both distrcts, intent on pre-serving prayer in school, argue that prayeris not a religious activity, but is simplyfree speech, If there is one thing uponwhich theologians and believers of mostfaiths 'agree, it is that prayer is the mostpure form of worship.

The question is not, "Should students,parents and teachers be forced to listen tooffensive speech?" (I would note, howev-er, that the school distrcts otherwise seemto go out of their way not to deliberately

inflame and inflct pain on the schooI

community simpIy as a matter of courte-sy.) The pertinent question is, "Should theState force students, parents and teachersto paricipate in religious acts?"

Even if one conceded that prayerswere simply noise devoid of meaning,

content or power and not an act of worship(which, please understand, I am not con-ceding), corporate prayer, even if renderedin a "purely" ceremoniaI fashion, is a reli-gious exercise, specifically prohibited bythe Utah Constitution.

Pass ii Fail

Freedom of ConscienceI think many people are happily

blessed with a broad tolerance for a var-

ety of religious practices, and they do notunderstand why something that isn't aproblem for them might be a defilement

and gross violation of freedom of con-

science for someone else. I believe it isbecause the common practice in theschools of praying to Heavenly Father inthe name of Jesus Christ simply is formany familar, comfortable, non-offensiveand well within their comfort zone. How-ever, others, including many Unitarians,

Jews, Muslims, Quakers, Catholics andProtestants, yes, and Mormons as well, aremoved not only beyond their comfort levelbut well over the pain threshold.

I think if students, parents and teacherswere asked at school activities (even theso-called "optional" graduation exercises)

to lie down on the floor and pray towardMecca, or sit cross-legged, bum incenseand chant, or possibly sacrifice small ani-mals and recite the Lord's Prayer, back-wards, the comfort zone of the "tolerant"majority might be exceeded as their per-sonal blasphemy meters hit the red. Orperhaps Utahns could return to their rootsand require graduating seniors to attend asweat lodge ceremony before diplomas

would be presented-an alternative formof baccalaureate.

Pass ilFail

In summary, based on fairness, toler-ance and civility, school boards shouldsimply drop religious worship, exerciseand instruction from our public schools.

Failng that voIuntary act, the ACLUclaims for Utah teachers, parents and stu-dents their constitutionaI right of Freedomof Religion as guaranteed by the United

States and Utah Constitutions.Uèahim

A treenightmar.

Don't make bad dreams come true.Please be careful in the forest.

êRemember. Only you can prevent forest fires.

II A public service of the US,DA~~ Forest Serv1ce, and your State -Foresters.

22 Vol.4No.6

STATE BAR NEWS

CommissionHighlights

During its regularly scheduled meet-ing of April 26, 1991, the Board of BarCommissioners received the following re-ports and took the actions indicated.1. Before proceeding with the scheduled

agenda, John Baldwin introduced J.Amold Birrell to the Commission. Mr.Baldwin reported that Mr. Birrell hasbeen hired as the Bar's new Staff Ac-countant and during the few weeks

that Mr. Birrell has been working forthe Bar, he has done an excellent jobin the financial department.

2. The minutes of the March 15, 1991,

meeting were reviewed and minorchanges were made.

3. President-Elect Davis distributed the

budget worksheet for FY - 92.4. The Commission voted to confirm that

President-Elect Davis has been autho-rized to negotiate mortgage loan refi-nancing and John Baldwin has been

authorized to execute closing docu-

ments.5, The Commission also reviewed the

Deloitte & Touche audit reports.6. President Greenwood reported on the

most recent Task Force meeting.7. During the March meeting, the Com-

mission voted to review the followingprograms: LEXIS, Public Informationthe Utah Bar Directory, Lawyer Refer~ral Service, Legal/Medical Committeeand Legal Economics Committee.President Greenwood indicated that amailing would be sent out to Bar

members soliciting their response toregulatory and non-regulatory func-

tions in order to petition the SupremeCourt by June 5, 1991.

8. The Commission voted six to three tocontinue the LEXIS Program, only ifthe program could be self-supporting.

9. The Commission voted unanimouslyto retain the Public Information Pro-gram,

10. The Commission voted to continue theUtah Bar Directory.

1 1. The Commission voted to terminatethe Lawyer Referral Service at the endof the fiscal year, unless the Commis-sion voted otherwise based on optionsto make the service self-supporting.President Greenwood appointed

Commissioners Hansen, Morton and

Howard to study the options in the in-terim,

12. After completing further study of theLawyer Referral Service, the Commis-sion determined to solicit lawyers tosign up for a flat $150 annual mem-bership fee and to discontinue the $15per referral charge. The $150 chargewould be biled in conjunction with

the next licensing cycle with the un-

derstanding that if there is insuffcientparticipation by attomeys to covercosts, the money would be refundedand the service discontinued,

13. The Commission voted to retain theLegal/Medical Committee.

14. The Commission voted to discontinuethe Legal Economics Committee untilinterest is shown by Bar members toreactivate the Committee.

15. President Greenwood distributed acurrent account report of the Client

Security Fund for the Commission's

review. She indicated that due to theamount currently in the account, Barmembers would have to be assessedon the next dues statement.

16. President Greenwood reported that theAnnual Meeting A wards Committee

met on April 23, 1991, to make rec-ommendations for recipients of thisyear's awards. After discussing the

recommendations, the Commission

voted to approve all but one of the rec-ommendations made by the A wardsCommittee, and that approval shouldbe deferred until the next meeting.

17. The Commission voted to make staffsalaries available by position, to Barmembers upon request.

18. Bar Counsel Trost indicated that uponCommission approval, he would file50 i C-6 incorporation papers, TheCommission authorized Mr. Trost tofie the papers.

19. The Commission reviewed the currentcase load in the Offce of Bar Counseland the Litigation report.

20. Darla Murphy, Admissions Adminis-trator, indicated that the examinationand grading process ran smoothly andthat several reappraisals were done.

21. The Commission voted to confirm thatthe applicants whose combined scoreon the full Bar examination falls in the130 to 129 range would have their es-say answer reappraised.

22. The Commission voted to adopt thenew rules for the examination reviewand appeal procedure,

23. The Commission approved the listingof applicants indicated as passing for

admittance to the Bar.24. The Commission adopted the policy

and guideline for testing disabled ap-plicants, except the provision for En-glish as a second language accommo-dation.

25. Mr. Baldwin updated the Commissionon the licensing and pledge bilings forthe Law and Justice Center and in-formed the Commission that he is inregular contact with Grant Thomtonand is sending the auditors financialinformation on a regular basis.

A full text of the minutes of this andother meetings of the Bar Commission areavailable for inspection at the office of theExecutive Director.

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Discipline ComerMAY 1991

ADMONITIONSAn attomey was admonished for vio-

lating Rule l.4(a) by failing to respond to

his client's requests for information con-cerning the status of the action. The attor-ney was retained to pursue collection andfailed to respond to his client's inquiriesfor a period of approximately two months.

I.

PROBATIONSOn March 29, 1991, Richard A. Hig-

gins was placed on probation for a periodof thirty-six (36) months on condition thathe pay $3 i 5,430 as restitution, that he notsell unregistered securities and that he notviolate any other state or federal securitieslaws. On May 17, 1988, Mr. Higgins pledguilty to three counts of the offer for saleof an unregistered security in violation of61-1- 7 u.c.A. Mr. Higgins was placed on

probation under the sùpervision of theAdult Probation and Parole Department ofthe State of Utah on May 17, 1988, for aperiod of thirty-six (36) months. The disci-plinary probation runs concurrent with thatof the criminal probation. The offense wasmitigated in that all of the securities workwas performed by n law firm in Denver,Colorado, which was experienced in secu-rities law. Mr. Higgins relied upon the le-gal opinion of that firm which declared

that the securities in question could besold without violating Utah law. BecauseMr. Higgins was an attorney and presidentof the company, however, it was con-

tended that he should have known that thesale of the securities was wrongfuL. Theoffense was considered more in the natureof absolute civil liabilty rather than acriminal offense. Further, in accepting Mr.Higgins' guilty plea, the Court ordered thatthe probation order should not be con-

strued to interfere with, or cause to be re-voked, Mr. Higgins' license to practicelaw. In addition, the events occurred in

1981 and 1982 and Respondent has no

prior or subsequent discipline history,

Alternate Trial Court Judicial Nominating Com-mission Applicants Sought

The Board of Bar Commissioners is

seeking applications from Bar membersfor the Bar appoifitments of two altematecommissioners to the Trial Court JudicialNominating Commissions for each geo-graphical division of the trial courts. Alter-nate commissioners were added to the Ju-dicial Nominating Commissions in the1991 legislative session, and wil serve inthe place of commissioners appointed bythe Bar of the same political party whomay become unable to serve as a result ofdisability, disqualification or otherwise,

Alternate commissioners shall be resi-dents of the geographic division served by

the Trial Court Nominating Commissionto which they are appointed.

These nominating commissions are forthe district courts, juvenile courts and thecircuit courts within their geographical di-vision. Bar appointees must be of differentpolitical parties.

Bar members who wish to be consid-ered for these appointments must submit aletter of application, including resume anddesignation of political affliation. Appli-cations are to be mailed to John C. Bald-win, Executive Director, Utah State Bar,645 S. 200 E., Salt Lake City, UT 8411i,and must be received no later than 5:00p.m. on August i, 1991.

,j

I'ii

i 99 i Judicial Conference Of TheTenth Circuit

Come to the 1991 Judicial Conferenceof the Tenth Circuit in beautiful Sedona,

Arizona, on July 17, 18 and 19, 1991, atthe Los Abrigados HoteL. The first generalsession is at 1:30 p.m. on Wednesday, July17, and the last event is a dinner dance onFriday evening, July 19, with optional

tours to Grand Canyon on the followingday.

The Bil of Rights and the Quality ofLife of Lawyers are the two themes of theConference. Justices Byron R. White andSandra Day O'Connor, best-selling authorRabbi Harold Kushner (When Bad Things

Happen to Good People) and (When AllYou Ever Wanted Isn't Enough), ClarenceDarrow (with actor James Lawless), Solic-itor General Kenneth Starr, and leadingscholars, deans and judges wil captureyour imagination and attention. Besides,you will receive a minimum of 10 hours ofCLE credits, including ethics credits.

Bring the whole family for a vacation.Enjoy the spectacular sights of Arizona(Grand Canyon, Lake Powell, Canyon deChelly, Petrified Forest), En route gothrough Utah (Bryce Canyon, Zion Na-

tional Park), Colorado (Mesa Verde, BlackCanyon of the Gunnison, Great Rocky

Mountain National Park), New Mexico(Santa Fe, Albuquerque, Indian pueblos),continue to Las Vegas, Disneyland or SanDiego's Sea World and Zoo.

A newly-featured Children's Programon Thursday moming, July 18, begins

with a continental breakfast followed by a2-hour participatory learning program onthe Bil of Rights adapted for various age

groups (3 to 6, 7 to ll, 12 to 17) and coor-

dinated by experts in adolescent and chil-dren's peer interactive leaming.

Lawyers and their spouses will enjoythe Wednesday evening casual outdoor re-ception under the trees along Oak Creek,followed by "The Art of Sedona" (brieftalks and a display by local artists and gal-leries) a few steps away in the Las Abriga-dos ballroom. Thursday brings the Spous-es' Breakfast at the Creek featuring a col-orful account of the unique features and

history of Sedona, the Conference Lun-

cheon featuring Justice O'Connor, and afree aftemoon and evening for golf, tennisand recreation. Friday's State Luncheonsgive you a chance to break bread with thelawyers and federal judges of your state.Climax of the Conference is the receptionand dinner dance featuring a presentationby the famous Clarence Darrow and abroad array of danceable music.

Don't miss this opportunity in a singletrip to combine legal learning, CLE credit,travel beauty, family togetherness, fun foryour youngsters, culture, relaxation, mix-ing with your friends and peers and meet-ing new friends, and meeting and hearingfrom two Supreme Court Justices andsome of the nation's top deans, law profes-sors, and federal and state judges.

24 Vol. 4 No. 6

Summer On-SiteBlood Drive

The Summer on-site blood drve ofthe Young Lawyers Section of the UtahState Bar wil be held on Tuesday, July 2,

1991, from 10:00 a.m, until 3:00 p.m. onthe ground floor of the Newhouse BuiId-ing, 10 Exchange Place (360S. StateStreet) in the former thrift office space.

This on-site blood drive wil kick off

the Summer Blood Drive of the YoungLawyer Section and targets the major lawfirms in the south half of downtown SaltLake City. If unable to donate on JuIy 2,members of the legal community are en-couraged to donate during that week aspart of the Young Lawyers Section's An-nual Blood Drive.

"The Young Lawyers Section's first on-site blood drive this winter was very suc-cessfuL. In July, we hope to match the 55units of blood that were donated in Janu-ary," stated Brian M. Barnard, Blood

Drive Committee Member.Each major Iaw firm in Salt Lake City

wil have a representative contacting staffand attorneys to answer questions and tosign up donors for specific donation times,

If you are interested in serving as the

contact person in your law tïrm, or inter-ested in signing up to donate, please con-

tact a blood drive committee member, JimHaisley at 328-6000, Brian Barnard at 328-9532, or Cy Castle at 532- 1234.

Utah Code ofJudicial

Administration Rule4-504(6)

Rule 4-504(6), Utah Code of JudicialAdministration, specifies that "Except

where otherwise ordered, all judgmentsand decrees shall contain the address ofthe last known address of the judgmentdebtor and the social security number ofthe judgment debtor if known." The courtsrequest cooperation from members of theBar in complying with this rule to assist inthe effective operation of post-judgment

activities and records management.

Celebrating the Bill of RightsBicentennial in Utah

By Keith A. Kelly

The Utah StateBar has been active incommemorating theBil of Rights ratifica-tion. Coordinatingwith many communityorganizations, the Barhas focused on raisingpublic awarenessabout the Bill ofRights. The followingare examples of ongo-ing commemorationefforts:

School Education Programs. With amajor grant from the Utah Bar Founda-

tion, the Young Lawyers Section has as-sisted in bringing Bill of Rights educationto the classroom. Under the leadership ofMichelle Mitchell, a committee has pre-pared aid presented packets of teaching

materials to over 300 intermediate and

secondary social studies teachers through-out the state. The materials create hypo-thetical town meetings, school boardmeetings and trials in which paricipantsdiscuss issues related to the Bil of Rights.The Committee has trained teachers to usethe materials through a statewide closed-

circuit teIevision broadcast and through atraining video. The Young Lawyers' LawRelated Education Committee has assistedteachers in implementing. this program inthe classroom.

Coordinating with the Utah Lawyersfor the Arts, the Attorney General, the

Utah Legal Clinic and the ACLU, theYoung Lawyers' Section has sponsored anessay and poster contest. For childrenfrom elementary, intermediate and second-ary schools, the contest sought essays andposters on the theme: "America Withoutthe Bil of Rights." At the same time, the

Law Related Education Committee pro-duced this year's mock trial competition,which featured litigation concerning Bilof Rights issues. The winners of these

competitions received their awards at aMay 1 ceremony.

Post-Secondary and CommunityEducation. Working with the Utah Hu-manities Council and the Governor's

Council on the Bil of Rights, the YoungLawyers Sections produced a major con-ference for community leaders and educa-

tors about Bicentennial programs and

projects. Held on February 1, the confer-ence featured columnist Jack Anderson asa keynote speaker, along with a panel dis-cussion on the Bil of Rights consisting of

President Rex Lee, Judge Monroe McKay,Judge Judith Bilings, U,S. Attorney DeeBenson and Professor Michael Gerhardt.Another conference is being planned forthis fall.

With support from the Utah Humani-ties CounciI and the American Bar Associ-ation, the Young Lawyers Section is spon-soring a speakers' bureau featuring distin-guished lawyers, professors and judges

who are wiling to speak to community

groups about the Bil of Rights.Commemorative Activities. The Bar

had a role in securing the passage of a

legislative resolution commemorating theBicentenniaL. In addition, the Young Law-yers Section has been working with theUtah Symphony to present a special Bi-centennial concert in early December cele-brating the Bill of Rights. A special com-memorative symphony is being composedfor the occasion.

Other activities are being planned forthis fall in conjunction with press, politicaland community organizations. If you areinterested in participating in any of theseactivities, please call Keith Kelly, Chair-person of the Young Lawyers Bil ofRights Bicentennial Committee, at (801)532-1500. In addition, educational and re-source materials dealing with the Bicen-

tennial can be obtained through the UtahHumanities Council at (801) 531-7868 orfrom the Commission on the Bicentennialof the United States Constitution at (202)USA-I787.

J unelJ uly 1991 25

I

IfThe Bill of Rights:

A Promise Fulfilled in the 20th Century

Although 1991 marks the 200th an-niversary of the adoption of the

Bil of Rights, the application of those

rights to govemmental action, both stateand federal is a relatively recent phenome-non. Adopted by the states in the 18th cen-tury as amendments to the United StatesConstitution, the Bil of Rights had littleeffect in the lives of most Americans untilwell into the 20th century. After ratifica-tion in 1791, the provisions of the firsteight amendments were all but irrelevantto the ordinary citizen and to society gen-erally for the next century and more. To-day, as a nation, we are preoccupied bysuch issues as freedom of speech, search

and seizure, abortion and separation ofchurch and state. The underlying princi-ples on which such issues tum are nowwidely accepted as vital to our way of lifeand to our concept of freedom. Indeed, itcan be said that to a significant extent, theBill of Rights has come to symbolize

throughout the world what this nationstands for.

That, however, has not always been

the case. How is it that it was not untilalmost the middle of the 20th century thatthe Bil of Rights became a vital part ofour law, limiting all governmental action,both state and federal? To answer thisquestion, we must begin with the events ofthe Revolution and the ConstitutionalConvention in 1787, and then tum to theCivil War and the decisions of the UnitedStates Supreme Court in the 20th century.As with most major developments in con-stitutional law, the ultimate victory forcivil liberties was accomplished with con-siderable controversy, a controversy thatstil continues today, but in a much abatedform.

1

By Justice i. Daniel Stewart*

JUSTICE I. DANIEL STEWART was ap-pointed to the Utah Supreme Court in January1979 by Gov. Scott M. Matheson. he served asAssociate Chief Justice from 1986 to 1988.Prior to his appointment to the bench, JusticeStewart was a partner in the law firm of

Jones, Waldo, Holbrook & McDonough inSalt Lake City. Prom 1965 to 1970 he was anassociate professor of law at the University of

Utah. He is a liaison to the Supreme CourtCommittee on Rules of Evidence. He wasnamed Appellate Court Judge of the Year in1986 by the Utah State Bar and Alumnus ofthe Year in 1989 by the University of UtahCollege of Law.

In words that have inspired people theworld over, the Declaration of Indepen-

dence articulated the basic concepts of in-alienable liberties and the proper relation-ship of govemment to the people. Thosepropositions are essential philosophical

underpinnings of the Bil of Rights: "Wehold these truths to be self-evident, that all

men are created equal, that they are en-dowed by their Creator with certain in-alienable rights . . . That to secure theserights, Governments are instituted amongMen, deriving their just powers from theconsent of the govemed," The blazingwords of the Declaration were not propa-ganda, although they served as a banner

for the Revolution. More importantly, theyencapsulated basic truths about the natureof man and his proper relationship to thestate and have inspired people to lay theirlives on the line for freedom, not only inthe 1 8th century, but also since then.

The Declaration is not, however, a le-gal document; it established no legal rightsand did not purport to limit the power ofany govemment. The transformation froma philosophical statement of beliefs aboutthe nature of man and the state into lawwas a long, arduous, and highly problem-atic task.

Curiously, the Constitutional Conven-tion of 1787 did not seek to guarantee anyfundamental rights or liberties, eventhough there were many that had estab-lished roots in English common law, ex-cept to the extent that the Constitution

banned bils of attainder and ex post factolaws and preserved the Great Writ-thewrit of habeas corpus. The framers be-

lieved that individual rights and libertieswould be adequately protected by stateconstitutions and the concept of limited,delegated powers in the Federal Constitu-tion.

At the onset of revolution, a number offormer colonies adopted written constitu-tions, South Carolina being the first. Vir-ginia, in 1776, was the first state to adopt adeclaration of rights, and it was written al-most entirely by George Mason. Later, in

ii

J

Ii

26Vol. 4 No. 6

the Federal Constitutional Convention, hisproposal to adopt a declaration of rights aspart of the proposed Constitution failed togarner the vote of a single state delegation,not even his home state of Virginia,2

From today's perspective, if not fromthe perspective of 1787, it is acutely ironicthat the Constitutional Convention of 1787did not adopt a declaration of rights in theproposed constitution. The rights that thepeople of that time deemed essential weregenerally a matter of widespread accep-

tance. After all, British violations of thelegal rights that the colonists claimed un-der the common law as Englishmen hadbeen the source of much revolutionary fer-ment. Other rights rested on a consensusthat grew out of common disapprobationof perceived British abuses in the coloniessince 1760.

After the convention proposed the

Constitution for ratification by the states, anumber of the leading participants in theconvention, in arguing for ratification,contended that a bill of rights was not nec-essary, and was even quite inappropriate.Alexander Hamilton, James Wilson,Roger Sherman and others declared that abil of rights was unnecessary. Dr. Ben-

jamin Rush told the Pennsylvania conven-tion for ratification that he "considered itan honor to the late convention that thissystem has not been disgraced with theBil of Rights. Would it not be absurd toframe a formal declaration that our naturalrights are acquired from ourselves?'" A

more startling justification for the omis-sion was offered by General Charles Cote-sworth Pinckney of South Carolina, whenhe told that state's legislature that bils of

rights "generally begin with declaring thatall men are, by nature, born free. Now, weshould make that declaration with a verybad grace, when a large part of our prop-erty consists in men who are actually bomslaves."4 Alexander Hamilton even arguedagainst a bill of rights on the grounds thatit could be the basis for expanding the

powers of the federal government becausethe limitations of power in a bil of rightscould be argued to presuppose the exist-ence of an affirmative power in the gov-ernment.

The framers apparently thought thatthe confinement of federal powers to thoseexpressly delegated, and the further limita-tion of governmental power by the doc-trine of separation of powers, would makeit impossible for the national govemmentto transgress the rights of the people. Ac-cording to Catherine Drinker Bowen, "Theframers looked upon the Constitution as abil of rights in itself; all its provisions

were for a free people and a people re-

sponsible. Why, therefore, enumerate thethings that Congress must not do?,'5

Thomas Jefferson and the anti-Federalists certainly thought otherwise, asdid the people of the states and those whorepresented them in the state conventionsthat ratified the proposed Constitution. In-deed, the people were adamant that a bilof rights be added to the Constitution, andthe people prevailed.

The new government was builtsquarely on a paradox. On the one hand,

government-by the consent of thepeople--ssentially meant representativedemocracy and rested on the principle ofmajoritarian rule, although limited in cer-tain respects. On the other, the concept of"inalienable rights" presupposed rightsrooted in the very nature of mankind andnot subject to majoritarian rule. Withoutthe limitations of a bill of rights on majori-

IIFrom to

day's perspective,

. .it is acutely ironic that the

Constitutional Convention of

1787 did not adopt a declara-

tion of rights. . . II

tarian rule, the power of the maJontywould have been irresistible, and individ-ual liberties would have almost inevitablyreceded before the "greater good" of ma-joritarian interests. Therein lie the seeds ofthe ominous "tyranny of the majority."

In retrospect, the conclusion is ines-capable that the absence of a bil of rightslimiting the power of the federal govern-ment would have been a singularly unfor-tunate omission of truly historic dimen-sions for the protection of civil liberties inthis nation and for the cause of humanrights throughout the world. The notionthat the liberties of the people would havebeen adequately protected from violationby the federal govemment by the princi-ples of limited government and delegatedpowers was an illusion, The provisions ofthe Constitution delegating powers to

Congress and the President were intendedto allow the govemment to adapt to chang-

ing times, and no one could have foreseenthat in the succeeding two centuries, fed-eral power would grow to such an extentthat the absence of a bil of rights limiting

federal power would be all but unthink-able.

Furthermore, the states were certainlynot vigilant protectors of individual liber-ties. The cause of civil liberties lay largelymoribund for the first hundred and moreyears of this history of the country. The19th century and the first part of the 20thcentury are characterized far more by theabuse of civil liberties in the states than bytheir protection. In 1833, the SupremeCourt ruled in Barron v. Baltimore that thefirst eight amendments to the Constitutionwere restrictions only on the federal gov-emment and not the states.6 The protectionof civil rights was left to state enforcementof state constitutional provisions, and therecord of the 19th century is not a high

point for individual liberties. The nationwas, of course, preoccupied with the mostprofound denial of civil liberty of all-

slavery. In the years preceding the Civil

War, most southem states passed laws se-verely. restricting anti-slavery speech.?

With exception of Kentucky, every south-ern state passed laws during the 19th cen-tury which controlled speech, discussionand the press. In 1837, an Alabama courtheld that any person "who shall proclaimto our slaves the doctrine of universal

emancipation. . . (is) subject to criminaljustice." The Virginia Code of 1 849 pro-vided for imprisonment of up to one yearand a fine of up to $500 for any person

who "by speaking or writing maintainsthat owners have no right of property insalves." Louisiana provided a penalty offrom 21 years at hard labor to death forany conversation "having a tendency topromote discontent among free coloredpeople, or insubordination among slaves.'"

According to one historian,From 1828 to 1855, and espe-

cially from 1833 to 1843, came averitable mob era. The masses,

charmed by this idea of the rule ofthe people, were convinced that itmade small difference. whether youdowned the minority by ballots or bybrick-bats, which they understood

better. .This form of tyranny by ma-jority had not been anticipated by thestatesmen who expected the colderprocess of voting down the minorityto prevail over the warmer sport ofkiling them . . . There was an ardent"nativism," by citizens who hadthemselves but yesterday come fromforeign shores. There was an almost

JunelJuly 1991 27

inexplicable dread of secret politicalor religious organizations, expressed

in crusades against the Masons, Cath-olics and Mormons."9, Even well into the 20th century, mob

lynchings, sham trials, especially ofblacks, coerced confessions and othergross "iolations of procedural and substan-tive liberties were frequent occurrences.

Following the Civil War, the passage

of the 13th, 14th, and 15th Amendmentsprovided a new opportunity to address theplace of "inalienable rights" in the life ofthe nation. The 14th Amendment provid-ed, "No state shall make or enforce anylaw which shall abridge the privileges orimmunities of citizens of the United

States." If the "privileges or immunities ofcitizens of the United States" included therights protected by the Bil or Rights,

those rights would be protected from stateinfringement. However, in the Slaughter-House Cases,JO the Supreme Court heldthat the privileges and immunities clausedid not incorporate the first eight amend-ments to the United States Constitution.As Justice Field stated in dissent, this in-terpretation made the passage of the privi-leges and immunities clause "a vain and

idle enactment, which accomplished noth-ing, and most unnecessarily excited Con-

gress and the people."!!The Supreme Court eventually looked

to the due process clause of the 14th

Amendment to limit state abuses of funda-mental liberties, but the change was noteasily made. For example, in Spies v.Ilinois,!2 eight anarchists were convictedof murder on the grounds that theirspeeches and publications had incited anunknown person to throw a bomb whichkiled eight policemen in HaymarketSquare, Chicago. The Supreme Court dis-missed a petition for writ of error in whichthe petitioners alleged that an Ilinois aid-

ing and abetting statute violated their dueprocess rights (as well as their privilegesand immuriities) under the 14th Amend-ment. Of the eight convicted men, four

were hanged, one committed suicide, andthe other three were pardoned by the gov-emor of Ilinois three years later.!3

The first cases finding violations of the14th Amendment due process clause para-doxically dealt principally with econom-ics. The Supreme Court ruled that stateeconomic regulation interfering with anindividual's liberty of contract was a viola-tion of 14th Amendment due process.!4These cases relied on general notions of"liberty" rather than on any provision inthe Bill of Rights. In Twining v. New

Jersey,!5 however, the Court conceded that

"it is possible that some of the personalrights safeguarded by the first eightAmendments against national action mayalso be safeguarded against state action,because a denial of them would be a de-nial of due process." This statement com-menced an ongoing debate with respect towhether various provisions of the firsteight Amendments should be incorporatedinto the due process clause of the 14th

Amendment and be held enforceableagainst the states. Only those amendments"found to be implicit in the concept of or-dered liberty" would be incorporated.

Although not commanding a majorityposition, some members of the Court dis-agreed with the notion of selective incor-poration and argued for a total incorpora-tion of the Bill of Rights into the 14th

Amendment. Dissenting in Adamson v.California,!6 Justice Black stated:

I cannot consider the Bil of

Rights to be an outwom 18th century"straight jacket" as the Twining

"The Supreme Court has

he ld that most of the

provisions of the Bill of

Rights. . .are enforceable

against the states."

opinion did. Its provisions may bethought outdated abstractions bysome. And it is true that they weredesigned to meet ancient evils. Butthey are the same kind of human

evils that have emerged from cen-tury to century wherever excessive

power is sought by the few at theexpense of the many. In my judg-ment, the people of no nation can

lose their liberty so long as a Bil ofRights like ours survives and its ba-sic purposes are conscientiously in-terpreted, enforced and respected soas to afford continuous protection

against old as well as new devices

and practices which might thwart

those purposes, I fear to see the con-sequences of the Court's practice ofsubstituting its own concepts of de-cency and fundamental justice for

the language of the Bil of Rights as

its point of departure in interpreting

and enforcing that Bil of Rights.Arguing for "selective incorporation,"

Justice Frankfurter responded: "Some arein and some are out, but we are left in thedark as to which are in and which are out.Nor are we given the calculus for deter-mining which go in and which stay out."!?The test of incorporation became what is"fundamental to the American scheme ofjustice."!8 On this analysis, the SupremeCourt has held that most of the provisionsof the Bil of Rights have been incorpo-

rated into the due process clause of the

14th Amendment and are enforceableagainst the states. It has only been in re-cent years, then, that the promise of legalprotection for inalienable liberties and fun-damental rights has come to fruition. Nowthe law stands as a barrier to both state andfederal abuse of those core elements of in-dividual freedom.

The Bil of Rights has had a major im-

pact on the quality of American life, morenow than at any time in our nation's histo-ry. As Justice Brandeis stated:

The makers of our Constitutionundertook to secure conditions favor-able to the pursuit of happiness. Theyrecognized the significance of man's

spiritual nature, of his feelings and ofhis intellect. They knew that only apart of the pain, pleasure and satisfac-tions of life are to be found in materialthings. They sought to protect Ameri-cans in their beliefs, their thoughts,

their emotions and their sensations.They conferred, as against the govem-ment, the right to be let alone-themost comprehensive of rights and theright most valued by civilized man.!9

The experience of the centuries is thatthe fundamental rights and liberties ofmankind are not well protected either bythe grace of rulers or by unrestrained ma-jorities. Judge Leamed Hand has assertedthat without a widespread commitment toliberty among the population as a whole,the rights of the people cannot be pro-

tected by the courts. He wrote:I often wonder whether we do not

rest our hopes too much upon consti-tutions, upon laws and upon courts.These are false hopes; believe me,these are false hopes. Liberty lies inthe hearts of men and women; when itdies there, no constitution, no law, nocourt can save it; no constitution, nolaw, no court can even do much tohelp it. While it lies there it needs noconstitution, no law, no court to saveit.20

28 Vol.4No.6

1. See Rice, Book Review, 1990 B.Y.V. L. Rev. 673 (reviewing R.Berger, The Fourteenth Amendment and The Bil of Rights (1989)).2. C. Collier & J. Collier. Decision in Phitadelphia 338-39 (1986).3. C. Bowen, Miracle at Philadelphia, 247 (1966).4.ld.5. ld. at 248.6. 7 Pet. 243, 8 L. Ed. 672 (1833).

7. Nyc, Fettered Freedom: Civil Liberties and the Slavery Controversy1830-1860174-77 (rev. ed. 1963), quoted in T. Emerson. D. Haber and

N. Dorsen, Political and Civil Rights in the United States 42 (1967).8.ld.9. Whipple. The Story ofCivit Liberty in the United States 5t (t927),quoted in T. Emerson, D. Haber and N. Dorsen, Political and CivilRights in the United States 40 (1967).10.83 U.S. (16 Wall.) 36. 2t L. Ed. 394 (1873).1 i. 21 L. Ed. at 415.12. 123 U.S. 131 (1887).

13. T. Emerson, D. Haber and N. Dorsen, Political and Civil Rights inthe United States 49 n. 1 (t 967).

t4. See. e.g., Lochner v. New York, 198 U.S. 45 (1905); AUgever v.

Louisiana. 65 U.S. 578 (1897).t5. 211 U.S. 78, 99 (1908).

t6. 332 U.S. 46. 89 (1947).

17. ¡d. at 65 (Frankfurter, J., concurrng).t8. Cf. Duncan 1'. Louisiana, 391 U.S. 145 (1968); Palka v.

Connecticut. 302 U.S. 319 (1937).19. Otmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J.,dissenting).20. The Spirit a/Liberty, Papers aiid Addresses of Learned Hand, 144

(I. Diliard ed. 1959).

so, we rekindle our dedication to the un-derlying principIes of our society. A rulingthat may be highly controversial and ex-cite much contention in its day may be-come an excepted trism in a later genera-tion. However, even if it does not, and itremains controversial, the cause of libertystil wins. Today \V fight about whetherprayer should be permitted at high school

graduations, and whether burning the flagin protest to some policy shouId be pro-tected. The arguments, although sharp, arenot about whether there should be freedomof speech or religion. We, in fact, agree onthe basic premises. That, I beIieve, is hum-bIe progress.

Perhaps the courts do not always reachthe right or best results, but no one canreasonably deny that they provide a forumfor making issues concerning the applica-tion of fundamental liberties a key part ofour national agenda for us and every suc-ceeding generation.

Judge Hand was, I believe, correct.When the spirit of liberty truly does die inthe hearts of men and women, In a moreimmediate sense, however, the law-andthe Bil of Rights in particular-as en-

forced by the courts, has a great teaching

function. The Bil of Rights informs,

teaches and reminds the peopIe that oursociety grew out of the commitment of ourancestors to individual liberties, Indeed,the Bil of Rights is itself instrumental ininstiling liberty "in the hearts of men andwomen." I have no doubt that, but for theBil of Rights, we, as a people, would be

far less committed to upholding the liber-ties. of others, especially when that isagainst our own immediate personal self-interest.

For the most par, we fight today notover fundamental principles, but ratherover how far those principles should beextended. The mere existence of the dis-pute itself has an educational function. Itcauses those who engage in the argumentto rethink and recommit to the basic prin-ciple involved and to assess again the ap-propriate meaning and application of thatprinciple in a given circumstance. In doing

* Grateful appreciation is expressed by theauthor for the assistance of his law clerk,David E. Sloan, in the preparation of thisarticle.

The Law Firm of

L A TIMER&BEHLEPARSONSKent O. Roche E. Russell VetterPatricia J. Winmil Cy H. CastleRandy M. Grimshaw J. Thomas BeckettLawrence R. Barusch M. Lindsay FordMaxwell A. Miler Jim ButlerWiliam D. Holyoak Kenneth R. BarrettPaul D. Veasy Thomas B. BrunkerDaniel W. Hindert Douglas R. Davis

Lois A. Baar Elizabeth S. ConleyLynn R. Cardey-Yates Elizabeth S. WhitneyCarolyn Montgomery Elisabeth R. BlattnerT. Patrick Casey James H. WoodallVaIden P. Livingston James E. Karkut

Michael L. Larsen Wiliam J. EvansJonathan K. Butler C. Kevin SpeirsDavid G Mangum Howard C. YoungJulia C. Attwood David W. ZimmermanDerek Langton L. Ward WagstaffLucy B. Jenkins Monica Whalen PaceLorna Rogers Burgess Alan K. FlakeThomas R. Grisley K. C. JensenDavid L. Deisley Lisa A. Kirschner

Richard M. Marsh Michael A. ZodyHal J. Pos Paul E. DameW. Mark Gavre Elizabeth Kitchens JonesDavid J. Smith David M. BennionMark S. WebberMark M. BettilyonJames c. HydeJ. Michael Bailey

Keith E. TaylorJames B. LeeGordon L. RobertsF. Robert ReederLawrence E. StevensDaniel M. AllredRoy G. HaslamDalln W. Jensen

W. Jeffery FilmoreKent W. Winterholler

Barbara K. PolichRandy L. DryerCharles H. ThronsonDavid R. BirdRaymond J. EtcheverryFrancis M. WikstromDavid W. TundermannJames M. EleganteVal R. AntczakPatrick J. GarverSpencer E. AustinLee KapaloskiStephen J. HullJohn B. WilsonRobert C. HydeCraig B. TerryDavid A. AndersonGary E. DoctormanKent B. AldermanJohn T. Anderson

We are pleased toannounce

the relocation of our offces to

One Utah Center201 South Main Street, Suite 1800

Post Office Box 11898Salt Lake City, Utah 84147

Telephone (801) 532-1234Facsimile (80l) 539-1346

July 1, 1991Of CounselRonald S. Poelman

29J unelJ uly 1991

Be Positive AboutYour Profession

By Charlotte L. Miler, President-Elect

Young Lawyers Section

During the last several months, numerousyoung lawyers visited schools to talkabout the Bil of Rights, drugs, the legalprofession, capital punishment, school

prayer, flag burning and a variety of othertopics. Almost every, if not every, teach-er's request to have a lawyer participate ina class was filed. The response of the

teachers and students to the lawyers' con-

tributions indicated that the lawyers didfar more than show up. They provided

projects, materials and lively discussions.

Placing lawyers in the schools was one ofthe many Law Day projects. Young law-yers also appeared on radio programs andat shopping malls to answer questions

about the legal system, they wrote articlesfor publications, participated in the State

Mock Trial Program and organized a mul-titude of activities to celebrate Law Day.

One of the best aspects of Law Day isthat it helps lawyers be more positiveabout their profession. We worry a lotthese days about our public image. We are

told to do a variety of activities to improveour public image-public service, probono work, etc. We should probably do

those things regardless of how it affectsour public image. If we are doing some-thing wrong in the profession that createsa negative public image, our good deedswil not erase the wrong to fix the publicimage.

Often, we are own worst enemies increating a negative public image. We com-plain about lawyers, the practice of law,

clients, judges, high bilable hours or lowpay, etc. We seem to have developed amentality that it is not "cool" to like beinga lawyer. Instead, it is something we sufferthrough. We often praise the other profes-sion for which we yearn: business owner,teacher, journalist, doctor, scientist, ski in-structor. Most lawyers came from anotherprofession. Maybe we are the ultimate suf-ferers of the "grass is always greener" syn-drome. Once in a while (preferably morethan once a year, but of course not so of-ten that it becomes habitual), we shouldthink about and possibly even say aloud tosomeone else what we like about beinglawyers. After all, we get to meet people,solve problems, read stories, write ourown stories, strategize, philosophize, edu-cate, act, create theories and advise peopleon how to deal with their family, friends,business associates, money, etc. It doesnot sound like such a bad job. Certainlymany things about the legal system needto be improved, but if we enjoy nothing

about the practice of law, it wil be diffi-cult to find the energy and desire to im-prove the profession.

We should thank all the lawyers whohelped make Law Day a success, and weshould not wait until the next Law Day tofind something about our profession we

like.

Governor Bangerter presented the firstScott M, Matheson Award to GregoryG. Skordas in the Capitol Rotunda onLaw Day, May 1, 1991. The award rec-ognizes the contributions of a lawyer to

. education, Mr. Skordas' contributions

include coaching, training and writingfor the Utah State Mock Trial competi-tion, presenting drug abuse workshopsat various Utah public schools, serving

as a mentor for over 20 high school in-tems and 80 law school intems over thepast six years, and being named theTeacher of the Year at Salt Lake Com-munity College. Mr. Skordas is a prose-cutor at the Salt Lake County Attomey'sOffice and is active in the Young Law-yers and Criminal Law Sections of theUtah State Bar. He also serves as a Barexaminer and on a lawyer disciplinarypaneL.

Young Lawyer ReceivesFirst Scott M. Matheson Award

30 Vol. 4 No.6

Believing in theBill of Rights

By Keith A. Kelly*

A case in point. A few months ago, alawyer met with some educators to presenta Bil of Rights education program. The

program encourages high school studentsto discuss differing personal views on is-sues like flag buming, "hate" speech, stu-dent locker searches and censorship.

When presented with the program, askeptical educator remarked: "You'd reallyhave to believe in the Bil of Rights to

want to expose kids to that kind of pro-gram."

Another case in point. At last year'sSalt Lake County Republican Convention,the delegates had passed a platform state-ment encouraging vigorous law enforce-ment and prosecution of drug dealers. Awoman stood to offer an amendment to thestatement qualifying that enforcement

should occur with due "protection of con-stitutional rights.."

Despite support from me and many. other delegates, the amendment was de-feated on a voice vote.

Bicentennial focus. Both cases ilus-trate why pubIic education has been a fo-cus of the Bar's Bil of Rights Bicentennialprograms. The skeptical educator probablybelieved in the Bil of Rights as much asthe lawyer presenting the Bicentennial

school program. The educator undoubt-

edly treasured his freedoms of speech, ex-pression and religion. If reminded, he

would recall that his ancestors were likelyoppressed by the denial of those freedoms.But he may have forgotten that protectionof those rights demands that people havethe freedom to express disparate points ofview and to seek redress in the courts.

Likewise, I am sure the Republican

delegates at the Salt Lake Convention

treasured the Bil of Rights. As active par-

ticipants in the political process, they were

KEITH A. KELLY is a shareholder of Ray,Quinney & Nebeker. He received his JD.from Stanford Law School, where he was anote editor of the Stanford Law Review. Hereceived his B.A., summa cum laude, andM.A. in Economics from Brigham Young Uni-versity. He served as a judicial clerk to theHonorable Monroe G. McKay. He is theChairperson of the Bil of Rights BicentennialCommittee of the Young Lawyers Section ofthe Utah State Bar, and the Co-Chairpersonof the Utah Council on the U.S. Constitutionand the Bill of Rights. He is the 1991-92

president-elect of the Young Lawyers Section.

exercising rights of assembly and speech.The Salt Lake delegates had some love offreedom as deIegates to the Constitutionratification conventions 200 years earlier,where a Bil of Rights was made an im-

plicit condition for acceptance of thenewly drafted Constitution. But for toomany of the Salt Lake delegates, "protec-tion of Constitutional rights" apparently

connoted legaI technicalities, delays injustice and unpunished criminals. So theyrejected the statement calling for protec-tion of constitutional rights.

As both cases ilustrate, a love of thefreedoms underlying the Bill of Rights

does not always transIate into an apprecia-tion for how those freedoms are protectedtoday.

This point was emphasized to me myfirst year out of law schooL. When people Imet found out that I had just graduated,they often asked for my opinions about

our legal system, They most commonlyraised questions about the infamous Hi-Fimurder case, which by then had been inthe courts for about a decade. Like thosepeople, I was sickened by that crime, Inresponse to their questions, I sympathizedwith their concerns about delays in the le-gal system and gave a generaI explanationabout appellate review,

But a few months later, while clerkingfor a United States Tenth Circuit Court ofAppeals judge, I found that he was calledto rule on one of the Hi-Fi murder appeals,While I did not directly assist on that case,I became aware of some of the challenginglegal issues invoIvedand the importantprecedential effect that the case. might

have. My experience reinforced for me thedelicate balance between protecting con-stitutional rights and obtaining speedy jus-tice. I finished my clerkship with an en-hanced appreciation of how the judiciaIsystem works to achieve that balance.

My experiences are not unique. TheUtah State Bar is made up of people whocarry a great weight of collective wisdomabout the Bil of Rights, Through our rep-resentation of individuals, the principIes

enunciated in the Bil of Rights are shapedinto decisions that affect our lives,

During the Bicentennial year, we aslawyers can help transIate Utahns' innerbelief in their rights into an appreciation

for the judicial process that has attemptedto preserve those rights for nearly 200

years. We can become involved in Bar-sponsored, community-sponsored or per-sonally initiated Bicentennial educationalefforts. Our efforts wil not eliminate divi-sive points of view about issues like abor-tion, public prayer or even doublebunking-nor shouId we attempt such aneffort. But we can help Utahns understandthe importance of having those issuesfairly and rationally adjudicated. In the

end, increased public understanding aboutour legal system will promote the free-doms stated in the Bil of Rights,

Biennial Judicial Performance SurveyThe Utah Judicial Council announces its biennial judicial performance survey of the Bar. It wil be conducted the middle ofSeptember this year and wil include more than half of the attorneys in the state who have practiced before judges of coui:s ofrecord at all levels during the past two years, including the appellate courts. The survey, conducted by Dan Jones and Associates,wil include all judges as was done in 1989 and for the first time, wil include Commissioners, Portions of the survey results wil beused by the Judicial Council to determine the certification of 19 of these judges who wil be standing for retention election in Nov.1992. Look for more details in the next Bar Journal.

J unelJ uly 1991 31

CLE CALENDAR .,

NOTE Now available, thanks to the incredible ef-forts of the Litigation Section, are draft copies of thenew "Model Utah Jury Instructions," or MUJI. Cop-ies of MUJI were given to the state judges who willbegin using them. To order a copy for review and

comments, please contact Kelli Suitter at the Bar at(801) 531- 9077. Copies are priced at $75 and arequite extensive.

1991 UTAH STATE BARANNUAL MEETING

This year's program provides an excel-lent opportunity for CLE combined with ascenic vacation and warm social gather-ings. The keynote speakers for the meetingare Hon. J. Clifford Wallace, U.S. Courtof Appeals, 9th Circuit, and Jack Ander-son, syndicated columnist. In addition, avariety of other CLE topics will be of-fered, rounding out the program. For reg-istration information, contact the Bar of-fices.Date:Place:

July 3-6,1991Sun Valley, Idaho

CLE BY THE SEAThis program is being sponsored by the

State Bar of Arizona in conjunction with

the Colorado, New Mexico and Utah StateBars and their respective Environmental

and Natural Resource sections. This four-day program wil run momings only, leav-ing afternoons to enjoy the beauty of SanDiego and the sea. The topics for this pro-gram will cover environmental law and

trial practice. The site for this program isthe Hotel Del Coronado, the last of thegrand seaside resorts. More informationwill be forthcoming on this program. Forfurther information now, contact BrendaMcDaniels at (602) 252-4804.CLE Credit: 15 Hours (approx.)Date: July 17-21, 1991Place: Hotel Del Coronado, San Di-

ego, Calif.,

THE WHITE AND CLARKANNUAL REVIEW:

REPRESENTING BANKS INCOMMERCIAL LAW CASES

A live via satellite seminar. This semi-nar is designed. for attorneys who repre-sent banks. It wil also be helpful to law-

yers who find themselves in commercial

litigation representing other parties whereliabilities are associated with the transferof checks, electronic transfers, or bank set-off. In addition, the program will cover therelated and equally troubling difficultiesassociated with setoff, with check kiting,

and the new problems in commercial andstandby letters of credit.CLE Credit: 6.5 hoursDate: July 23, 1991Place: Utah Law and Justice Center

Fee: $185 (plus $9.75 MCLE fee)Time: 8:00 a.m. to 3:00 p.m.

PRACTICE SKILLS TOINCREASE BOTTOM LINE

RESULTS USING TECHNOLOGYAND SYSTEMS TO IMPROVE

LAW FIRM PRODUCTIVITY ANDPROFITS IN A CHANGING WORLD

A live via satellite seminar. Any lawyerfrom any size firm with any type of prac-tice can increase their personal, depart-

mental and firm productivity and profit. Alawyer with any type of practice wil bene-fit from attending and learning, and cantake that information back to the firm toshare with others, increasing their produc-tivity, too.CLE Credit: 6.5 hoursDate: August 20,1991Place: Utah Law and Justice Center

Fee: $185 (plus $9.75 MCLE fee)Time: 8:00 a.m. to 3:00 p.m.

WORDPERFECT WITHPRIMARY EMPHASIS ON

LIBRARY/OFFICE 3A live via satellite seminar.

CLE Credit: 6.5 hoursDate: September 17, 1991Place: Utah Law and Justice Center

COUNSELING SMALL BUSINESSOWNERS ON DEATH, DISABILITY,DIVORCE AND DISAGREEMENTA live via satellite seminar.

CLE Credit: 6,5 hoursDate: September 24, 1991Place: Utah Law and Justice Center

AUTOMATING THE DRAFTING OFWILLS AND TRUST AGREEMENTS

A live via satellite seminar.CLE Credit: 6.5 hoursDate: September 25, 1991Place: Utah Law and Justice Center

BUYING AND TRADING CLAIMSA live via satellte seminar presented by

the Commercial Law League.CLE Credit: 6,5 hoursDate: October 8, 1991Place: Utah Law and Justice Center

ENHANCING LAWYERING SKILLS-A CRITICAL PATH

TO BUILDING YOUR PRACTICEAND CLIENT RELATIONS

A live via satellte seminar.CLE Credit: 6.5 hoursDate: October 15, 1991Place: Utah Law and Justice Center

ASSET PROTECTION PLANNINGA live via satellite seminar.

CLE Credit: 6.5 hoursDate: October 22, 1991Place: Utah Law and Justice Center

DEVELOPMENTS IN TRUSTSAND ESTATES

A live via satellite seminar presented byNew York University.CLE Credit: 6.5 hoursDate: October 15, 1991Place: Utah Law and Justice Center

THE MILD TO MODERATEBRAIN INJURY CASE:

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32 Vol. 4 No. 6

1- - - - - - - - - - - - - - - - - - - ~CLE REGISTRATION FORM

TITLE OF PROGRAM1.

2.

FEE

Make all checks payable to the Utah State Bar/CLE Total Due

Name PhoneAddress City, State, ZIPBar Number American Express/MasterCardNISA Exp. Date

SignaturePlease send in your registration with payment to: Utah State Bar, CLE Department, 645 S.

200 E., Salt Lake City, UT 841 i 1.The Bar and the Continuing Legal Education Department are working with Sections to

provide a full complement of live seminars in i 99 1. Watch for future mailings.Registration and Cancellation Policies: Please register in advance, as registrations are taken

on a space-available basis. Those who register at the door are welcome but cannot always beguaranteed entrance or materials on the seminar day. If you cannot attend a seminar for whichyou have registered, please contact the Bar as far in advance as possible. No refunds wil bemade for live programs unless notification of cancellation is received at least 48 hours inadvance.

NOTE: It is the responsibility of each attorney to maintain records of his or her attendanceat seminars for puroses of the two-year CLE reporting period required by the Utah Manda-

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THE LAW FIRM OFPURER, OKA & BERTT

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THE FIRM NOW INCLUDES THE FOLLOWING:

Donald J. Purser

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J. Angus EdwardsJ. Nick Crawford

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OF COUNSELLoren E. Weiss Kenneth A. Okazaki

June/July 1991

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Announcing the formation of

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Joining the firm are:

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Gary B. FergusonDennis C. Ferguson

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The firm wil practice law in the areas of:

Health Law; Medical Malpractice;Products Liabilty; Personal Injury;

Toxic Torts/Environmental; Real Estate;Construction; Land Use PIanning;

Governmental Liabilty;and related litigation.

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(801) 521-5678

33

CLASSIFIED ADS .

For information regarding classified adver-tising, please contact Kelli Suitter at 531-9095.

BOOKS FOR SALEALR, ALR 2nd, ALR 3rd, ALR 4th, ALRFederal, U.S.C.A., Words and Phrases,c.J.S., Am Jur 2nd, Am Jur Pleading andPractice Forms, Am Jur POF, Am Jur POF2nd, Pacific Reporter, Pacific Reporter 2nd,West's Pacific Digest, Shepard's Citations

(Pacific, Utah), Bender's Federal PracticeForms, Moore's Federal Practice, CurrentLegal Forms, Utah Law Review, Brady onBank Checks, UCC Reporting Service, TheLaw of Letters of Credit, Summary of UtahReal Property Law, Federal Banking LawReporter, Modern Banking Forms. ContactChou Chou Collins at (801) 532-1234.

INFORMATION NEEDEDI would like to talk to anyone with knowl-edge of a lawsuit conceming a recreation ve-hicle fire which involved a Pollak 42- 106switchover or changeover valve. Please callcollect. Pat Martin, (702) 329- 1 57 1.

OFFICE EQUIPMENT FOR SALECOPIER. High speed/high volume copierwith single-page feeder and 15-bin sorter.Five years old, under warranty.$2,500/offer- financing available. Call(801) 621-6119.

OFFICE SHARING/SPACEAVAILABLE

Newly formed Salt Lake law firm lookingfor additional experienced attomey to shareoffice/join firm. Must be able to accept over-flow work. Excellent offices. Contact Bryanat (801) 532-6200, 660 S. 200 E., Suite 301,Salt Lake City, UT 841 1 1 .

Small Salt Lake City firm with general com-mercial and corporate practice seeking oneor two attomeys with experience and clientbase in the areas of domestic relations, tax,real estate, estate planning, or commerciallaw to associate in office sharing or moreformal arrangement. Located in attractivedowntown space. Office equipment, recep-tion and secretarial services available. Sendinquiries to Utah State Bar, Box K, 645 S.200 E., Salt Lake City, UT 84111.

Deluxe offce space for one attorney and

secretary. 4212 Highland Drive. Office sharewith two attomeys. Conference room andconvenient parking. Call (801) 272- 1013.

Office sharing available in Ogden. All nec-essary office equipment in place. Referralsavailable in business, divorce, estate plan-

ning, consumer, products liability, and bank-ruptcy from attomey who has focused prac-tice in two other areas. Call Joanna at KellyCardon & Associates, (801) 627-11 10 or(801) 328- 1110 for more information.

Beautiful office space available within suiteoccupied by existing law firm in the Brick-yard Tower (3130 S. 1245 E.). Supportavailable including reception, secretarial,

.copy, FAX, telephone and library. Ten min-utes from State and Federal Courts. For moreinformation, contact Mary at (801) 484-3000.

Office space for rent. Choice office sharing

space for rent in beautiful, historic buildingin Ogden, Utah. Several offices available.For information, please contact (801) 621-1384.

Executive or professional offices for lease inone of Salt Lake's premier office buildings,available individually or as a suite with sec-

retarial st¡¡tions, elegant shared board room,conference room and reception. Telephoneand secretarial services available. Immediateoccupancy. $500 to $2,500. Call Lisa at(801) 366-6064.

Great location for attorneys. Walk to Feder-al, Third Judicial District, Circuit Courts,

City and County and Heber M. Wells Build-ings. Bookshelves, conference room, kitch-en, reception area, copy room, four-officesuite. Lease or purchase. Call Traci at (801)521 -6383.

Attractive office space available in UnionPark area (1200 E. 7000 S.) next to the Holi-day Spa. Office sharing with six other attor-neys. Window and/or interior office is com-plete with secretarial and word processingservices or space for your own secretary, re-ception area, copier, telephone, FAX ma-chine and conference room. Close freeway

access to all parts of the valley. Please con-tact David at (801) 566-3688.

Deluxe office space for two attomeys andstaff. 7821 S. 700 E. area. Includes space forconference room, library, file storage, etc.Convenient parking for both clients andstaff. Call (801) 272- 1013.

Need a deposition facility or an office on ashort-term basis in Salt Lake? Elegant exec-utive offices, deposition facilities andconference/meeting rooms available in pre-

mier office building in Salt LaKe City. Ar-rangements for secretarial services if needed.Call Lisa at (801) 366-6064.

POSITIONS A V AIL ABLEThe 87th Military Law Center has openingsfor attorneys interested in the Army Reserve.Lawyers under the age of 35 who wish topursue a direct commission as a First Lieu-tenant and a part-time career as an officer inthe Judge Advocate General's Corps are en-couraged to contact Warrant Officer Babbelat Fort Douglas, (801) 524-4018. The ArmyReserve is an equal opportunity employer,

provides excellent opportunities for interest-ing work and provides continuing legal edu-cation at govemment expense.

Staff attomey interested in advancing the

rights of people with disabilities. Litigationexperience preferred. Submit resume andbrief narrative or personal motivation for

seeking the position to: Legal Center forPeople with Disabilities, 455 E. 400 S., Suite201, Salt Lake City, UT 8411 1. An equal

opportunity employer.

Small firm seeking attomey for public inter-est work. Experience in domestics and/or

criminal law preferred. Wil provide office,overhead, small "salary" and overflow workin exchange for part-time legal services.Send resume to Rilling and Associates, 8 E.Broadway, Suite 213, Salt Lake City, UT84111.

POSITIONS SOUGHTAttorney with five years' experience retum-ing to Utah seeks associate position. Experi-ence in civil and criminal litigation. Admit-ted in Utah. Please' reply to Utah State Bar,Box J, Salt Lake City, UT 84111.

Experienced litigator and bankruptcy attor-ney (specifically Chapter 11, business reor-ganizations) seeking similar practice with aSalt Lake City law firm. Plethora of experi-ence in business litigation, bankruptcy litiga-tion, bankruptcy appeals and bankruptcy re-organizations. Also experienced in environ-mental and administrative law. Contact Mr.Drake at P.O. Box 3825, Phoenix, AZ 85030or (818) 713-0102, (602) 864-0058 or digitalpager (602) 498-6389. Member of Utah, Ari-zona and Idaho Bar Associations.

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