Discovery: Procedural Due Process of Law “The History of American Freedom is, in no Small Measure, the History of Procedure”¹

                                                                  By Nikki Jepson

"Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise. As Mr. Justice Frankfurter has said: 'The history of American freedom is, in no small measure, the history of procedure."¹

The process of discovery in both civil and criminal law involves investigating the evidence that the other party may present at trial. Under Rule 26(b)(1) of the Federal Rules of Civil Procedure (FRCP), discovery is broadly defined. “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.”²

In criminal law, evidence can be exculpatory or inculpatory. “Exculpatory evidence is evidence, such as a statement, tending to excuse, justify, or absolve the alleged fault or guilt of a defendant.”³ Another way to explain it would be exculpatory evidence consists of any evidence that is favorable to the defendant. Under what is known as the Brady Rule, named after Brady v. Maryland (1963), the prosecution is required to turn over any material exculpatory information in the government’s possession to the defense.⁴

However, from 1963 until 1985, the Brady rule was only applicable if the defendant made a pretrial request for specific information, which the prosecutor denied. In United States v. Bagley (1985), the Supreme Court expanded the Brady Rule by eliminating that requirement by stating, “the prosecution has a constitutional duty to disclose all material, favorable information in their possession to defendants regardless of whether it is requested.”⁴ When prosecutors are found to have violated Brady during the trial, it can result in a mistrial or prohibit the prosecution from using unfavorable evidence, which the exculpatory evidence may discredit.⁴ Today, most Brady violations are not caught or remedied until after an individual has been convicted and sent to prison.

To ensure due process of law, how important is the process of discovery? Is the sharing of information through the process of discovery the only way to ensure that each side receives a just outcome?  

Sources:

¹M&H, Specialty Courts, pg. 157

²https://www.law.cornell.edu/wex/discovery

³https://www.law.cornell.edu/wex/exculpatory_evidence

⁴https://www.law.cornell.edu/wex/Brady_Rule

Brady v. Maryland, 373 U.S. 83 (1963)

United States v. Bagley, 473 U.S. 667 (1985)

I Believe that Children are our Future: So let them fight for it.

By Kara Budge

Harrison Epstein - Standard-Examiner and Daily Herald | Nov 7, 2022

The legal non-profit, Our Children’s Trust was formed with one ambitious goal: to bring lawsuits on behalf

of young people and force federal and state governments to address climate change.  They have brought suits in

all fifty states but only one has gone to trial and that was this month in Montana, those Plaintiff’s won.   

 

A couple of weeks ago I was meeting with students at my school and met Natalie, who told me she is involved in

a lawsuit and that she is working with Our Children’s Trust, suing the State in Natalie R. v. The State of UtahShe and another West High student along with four other minor plaintiffs and their parents sued in March of 2022.

In the complaint, plaintiff’s argue that state laws have been “systematically authorizing fossil fuel development in

Utah '' through state agencies.  Utah Code §§ 79- 6-301(1)(b)(i), 40-10-1(1), 40-10-17(2)(a), 40-6-1, 40-6-13The defendants’ fossil fuel policies have had a direct negative impact on the health and development of the

plaintiff youth. Plaintiff’s cite many examples such as asthma, headaches, respiratory issues, coughing, loss of

ability to recreate outdoors, and mental issues such as stress and anxiety.  They go further stating their lives are

being shortened due to the defendants’ fossil fuel policies which are being made knowing full well the negative

health impacts they bring to residents. Plaintiff’s cite the Utah State Constitution, Article I, Sections 1 andstating that by systematically authorizing fossil fuels, they violate their rights to life and to “be free from

government conduct that substantially endangers their health and safety”.    

 

In November 2022 Judge Faust granted the State’s Motion to Dismiss. Noting in his written decision that

“Plaintiffs have a valid concern,” the judge cited the political question doctrine, redressability, and substantive

due process as issues informing his decision to grant the state’s motion. On January 3, 2023, plaintiff’s filed a

Notice of Appeal and on March 10, 2023, the Utah Supreme Court, rather than the Utah Court of Appeals, retained

the appeal filed by the seven Utah Plaintiff’s.  This is rare and recognizes the case’s constitutional significance.   

 

Last week the youth plaintiffs filed their opening brief to the Utah Supreme Court explaining why their case

should go to trial.  Montana has been the only case to go to trial and now there is a real possibility that Utah will

be next.  

Considering that in the twelve years of Our Children’s Trust, only one state has gone to trial, one could ask why

they have not had much success and why Our Children’s Trust is holding governments rather than the fossil fuel

industries accountable and why they are using young people to bring forth these claims. I look forward to

following this case to see if youth can be the change they want to see in their future.

 

By Harrison Epstein - Standard-Examiner and Daily Herald | Nov 7, 2022

Citations:

Bancroft, Kaitlyn. “Is a Healthy Environment a ‘Fundamental Right’? Utah Supreme Court to Hear Climate Case.” Deseret News, 17 Mar. 2023, , https://www.deseret.com/utah/2023/3/17/23644462/healthy-environment-fundamental-right-utah-supreme-court-to-hear-case.  Accessed 26 Sept. 2023. 

Epstein, Harrison. “Utah youth in court to argue climate suit; state asks for dismissal.” Standard Examiner, 7 Nov., 2022, https://www.standard.net/news/environment/2022/nov/07/state-asks-for-dismissal-in-youth-led-climate-suit. Accessed 26 Sept. 2023

“Children’s Rights.” No Ordinary Lawsuit. 16 July, 2019, www.noorrdinarylawsuit.org. 

Natalie R v. State of Utah 2022 WL 798331 (Utah Dist.Ct.3/15/2022) (Trial Pleading)

“Youth v. Gov UT” Our Children’s Trust. 26 Sep. 2023 https://www.ourchildrenstrust.org/utah.

 Utah Code §§ 79- 6-301(1)(b)(i), 40-10-1(1), 40-10-17(2)(a), 40-6-1, 40-6-13

Utah State Constitution, Article I, Section 1

Utah State Constitution, Article I, Section 7

Navigating the Great Salt Lake Lawsuit: A Shallow Dive into Components of Complaints

By Harley L

The Great Salt Lake is the largest saline lake in North America, located approximately 15 miles northwest of the University of Utah. The Great Salt Lake is an essential natural element to Utah due to its ecological and economic significance. Notably, the Great Salt Lake is a critical layover for millions of migratory birds via the Pacific Flyway, provides billions of dollars in financial revenue, and ultimately safeguards public health (1). The Great Salt Lake has been in local headlines for several years due to the steep decline in water levels and surface area caused by water diversions, excessive usage, evaporation, drought, and climate change (2). This has contributed to a number of severe concerns ranging from toxic arsenic dust, depletion of habitats for wildlife, loss of local jobs, etc. On September 6th, 2023, a group of environmental organizations filed a complaint against several state entities aimed at restoring and protecting the Great Salt Lake. In this blog post, we will discuss the complaint and its components.

Anatomy of the Complaint:

The complaint signifies the commencement of legal engagement from the environmental groups (plaintiffs) against the Utah state agencies (defendants). The environmental groups detail the claims, facts, parties, and relief they seek against the state agencies to the court. The complaint can be read in its entirety here: Great- Salt-Lake-2023-Complaint.pdf

Identification of Legal Claims:

The complaint details specific legal claims based on Utah’s Public Trust Doctrine. The environmental groups claim that the state agencies have failed to fulfill their public trust obligations to maintain the Great Lake Salt elevation by disregarding upstream diversion. As mentioned, the state acts as the trustee, with a duty to protect state resources for the benefit of the public; under the public trust doctrine, the public owns many natural resources.

Jurisdiction and Venue:

The complaint cites Utah Code §78A-5-102(1), §78B-3-307(1), §65C-1-2, which provides the district court jurisdiction over this case due to the state agencies action (or lack thereof) directly impacting the county (Salt Lake County) where the Great Salt Lake resides. Furthermore, the complaint states that the court has personal jurisdiction over the state agencies as “defendants are state government entities and officials, sued in their official capacities, who reside and conduct their official business in the State of Utah.”

Factual Background:

The environmental groups provide an extensive, detailed analysis of the events leading to the crisis of the Great Lake Salt. This section focuses on events and facts that help form the basis of the complaint—partially focusing on unsustainable practice and their impact on the Great Salt Lake.

Claim for Relief:

While in most lawsuits, we commonly see plaintiffs seeking monetary relief, however, the environmental group seeks injunctive and declaratory relief here. This relief specifically related to restoration of the Great Salt Lake elevation and modification of water diversions, including public involvement and transparency.  

 

In conclusion, the complaint initiating the Great Salt Lake lawsuit is critical in outlining the environmental group’s case, providing the state agencies and court with a clear understanding of the dispute and relief sought by the environmental group to preserve and protect the ecological integrity and economic significance of the Great Salt Lake.

(3)

(1) ABC4. (2023, September 6). Utah Sued by Conservation Groups over Failure at Great Salt Lake. ABC4. https://www.abc4.com/news/wasatch-front/utah-sued-by-conservation-groups-over-failure-at-great-salt-lake/

(2)  Friends of Great Salt Lake. (n.d). About the Lake. https://www.fogsl.org/about/map

(3) Bagley, P. (2022, November 9). Ducks Limited. The Salt Lake Tribune. https://www.sltrib.com/opinion/bagley/2022/11/09/bagley-cartoon-ducks-limited/

In Pursuit of the Indian Child Welfare Act (ICWA) by Tyler Jaynes

 “Kill the Indian, save the man…. Transfer the savage-born infant to the surroundings of civilization, and he will grow to possess a civilized language and habit.”

– Captain Richard Pratt, 1879

© The Association on American Indian Affairs

Since the first treaties were signed between the United States government and the various Native American tribes, Native populations have had to fight endlessly to see these agreements fulfilled. Yet as can be seen by the "Civilization Fund Act of 1819" [1], "Indian Removal Act of 1830" [2], the several "Indian Appropriations Acts" [3-6], and other laws enacted prior to the "Indian Reorganization Act of 1934" [7], the interests of non-Indian settlers were generally prioritized above and beyond the Native residents. Even law enforcement on Tribal lands has been under contention since the passage of the "Major Crimes Act of 1886" [8]. Unique to the legal process in Tribal lands is the piece of legislation approved in 1953 [9] whereby Federal jurisdiction is ceded to State courts for both civil and criminal cases.

Each of these elements plays into the larger story that is Haaland v. Brackeen [10]. As described by the case, the petitioners challenged the Indian Child Welfare Act (ICWA) as unconstitutional because 1) racial classifications are set for non-Indian families wishing to foster or adopt Indian children, 2) the ICWA violates 25 U.S.C. § 1915(c) [11] upon the "non-deligation" doctrine, and 3) the ICWA violates 25 U.S.C. §§ 1912(e) and 1912(f) [11], alongside the 10th Amendment of the United States Constitution under the rationale that the ICWA "unconstitutionally commandeer[s] the States" [10, p. 1616-1617]. Per the lower court's opinion, 1) and 2) above were found not to "exceed" Congress' legislative power. Ultimately, it is determined that the State of Texas lacks standing to challenge the placement preferences set forth by the ICWA [10, pp. 1640 - 1641]. This reversal of the lower court's determination matches the claim the defendants were making in the first case [12] in the overall chain of appeals, and begs the question of why the initial case held that Texas did hold jurisdiction to file suit.

While Texas does have two recognized "Indian Entities" which receive services from the US Bureau of Indian Affairs (BIA) [13], the suit does not target specific adoption cases from that state. Rather, the ruling states that "Texas, Louisiana, and Indiana bring this suit in their capacities as sovereign states...They claim that the ICWA and the Final Rule harm state agencies charged with protecting child welfare by usurping their lawful authority of the regulation of child custody proceedings and management of child welfare services...Additionally, the ICWA and the Final Rule jeopardize millions of dollars in federal funding...The State Plaintiffs have at least one Indian tribe living within their borders and have regular dealings with Indian child adoptions and the ICWA" [12, p. 8]. The State is furthermore alleging that the ICWA “injures Texas by requiring it to break its promise to its citizens that it will be colorblind in child-custody proceedings" [10, p.1641]. Ultimately, the courts are attempting to determine the minimum bounds under which Tribal laws (and Federal laws which support them) can be litigated. 

But the question remains within this confluence of jurisdiction: Are Tribes (like states) entitled to ensure the "general welfare" of their peoples--and therefore immune from suits that would infringe upon their rights to execute their Constitutional duties? And if so, do States have a right to sue against this immunity given how their rights have frequently superseded those of Native populations for much of the nation's history (despite the several treaties established between the US and Tribal peoples)?

Citations:

[1] Public Law 15-85.

[2] Public Law 21-148.

[3] Public Law 31-14 {Indian Appropriations Act of 1851}.

[4 Public Law 41-120 {Indian Appropriations Act of 1871}.

[5] Public Law 48-341 {Indian Appropriations Act of 1885}.

[6] Public Law 50-412 {Indian Appropriations Act of 1889}.

[7] Public Law 73-383 [25 U.S.C. ch. 14, subch. V § 461 et seq].

[8] 18 U.S.C. § 1153

[9] Public Law 83-280 [18 U.S.C. § 1162, 28 U.S.C. § 1360, 25 U.S.C. §§ 1321–1326].

[10] 216 L.Ed.2d 254 (2023) (143 S.Ct. 1609).

[11] Public Law 95-608, Title I, § 105, 92 Stat. 3073.

[12] 2018 WL 10561971 (2018).

[13] 88 FR 2112 (2023).

 

Questions of Law or Fact Common to the Class: How common is common enough?

 By: Andrew Carluccio

When a group of people are harmed by the actions of another person or entity, they may be entitled to damages from that injury. These aggrieved parties can unite in what is known as a class action lawsuit. However, there are limitations, generally governed by state requirements, that limit the ability to unite and proceed with a class action lawsuit. Aggrieved parties must meet prerequisites. In the state of Utah, outlined in URCP Rule 23, the prerequisites are:

1.       The class is so numerous that joinder of all members is impracticable.

2.       There are questions of law or fact common to the class.

3.       The claims and defenses of the representative parties are typical of the claims or defenses of the class.

4.       The representative parties will fairly and adequately protect the interests of the class. (Utah Courts)

For this blog post, I am addressing the 2^nd prerequisite, questions of law or fact common to the class. I have a family member who is in the middle of litigation with, as they’ve described it, an unscrupulous and unethical solar panel company. The facts as they’ve described to me are as follows:

1.       The solar company installed the panels and the battery system but never turned the system on or demonstrated how to turn the system on before the required city inspection. (Apparently, turning the system on before inspection is standard practice.)

2.       The solar panels themselves were not the ones as advertised.

3.       The installation was done by unlicensed apprentice electricians operating under the license of a journeyman electrician. The journeyman electrician was never present during installation and, to my family member’s knowledge, never came to the house to inspect the work of the apprentices.

4.       A secondary inspection by a licensed electrician determined the installation was “clean.”

5.       As of this posting, the solar panel system has not been turned on, and my family member has not paid the solar panel installation company.

While working with a lawyer to seek remedy, my family member investigated independently and found numerous other customers in Utah County experienced similar problems with the same company. This raises the possibility of a class action lawsuit against the solar panel installation company. However, prerequisite two must be tested and raises a much-debated question posed by jurors, judges, legal scholars, and Professor of Law, Columbia Law School Robin Effron: “How common is common enough?” Professor Effron states in her article, The Shadow Rules of Joinder, “Litigants are taught to rely on the liberal rules of joinder to build their lawsuits, but these rules are not without limits. At some point, the extra claims and parties are too remote or their presence is too disruptive, and joinder fails.” (Effron, 2012)

As my family member considers joining with these other aggrieved customers he and his lawyer need to weigh the benefit of a united suit versus how unwieldy the suit may become. He also needs to recognize that much of the decision comes down to the judge and how the judge may view similarities in the facts listed above with those that other parties may have experienced. In the end there are broad rules, and what seem to be guidelines, but there are no clear cut answers to “How common is common enough?”

 

Effron, R. (2012). The shadow rules of Joinder - Brooklyn Law School. The Brookly Law School BrooklynWorks. https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?httpsredir=1&article=1101&context=faculty

Utah Courts. URCP Rule 23 (Rules of Civil Procedure) - Utah Courts. (n.d.). https://legacy.utcourts.gov/rules/view.php?type=urcp&rule=23#:~:text=One%20or%20more%20members%20of,are%20typical%20of%20the%20claims

 

Sounds Like An Agreement: 3M Earplugs Agree To Pay Veterans

 "You have reached the Tinnitus Support Hotline: please leave a message after the beep."

By Michael Gipson

    Whether the 30% of military veterans who suffer from tinnitus do so due to their own hubris or due to ineffective hearing protection is up for debate. Regardless, there are twice as many veterans asking their loved ones to repeat themselves than civilians {1}. When service members are ordered to work around jet engines, firing weapons, humming server rooms, or endure the screaming of a superior officer, they are expecting an opportunity to do these tasks with safety in mind -- if only for the prolonged efficacy of the military as a whole. That's why most careers in the military issue their troops hearing protection of some sort. But veteran hearing-loss statistics are showing that either their hearing protection wasn't working, or perhaps our nation's finest couldn't figure out which orifice to put the earplugs in.

    The leading company for hearing protection equipment to the military has been 3M for decades. To summarize the outcome of an otherwise lengthy (6 years) litigation, 3M has been ordered to pay $6B to over 300,000 registered complaints{2}. Many veterans doing the math online estimate a payout of a little less than the cost of one of those energy drinks they got addicted to during their deployment. 

    One particularly unusual thing about this case is the jurisdiction under which it was decided. "This litigation currently consists of eight actions pending in four districts, as listed on Schedule A. The Panel also has been notified of 635 related federal actions filed in 33 districts."{3} The spread nature of so many lawsuits called for the centralization and transfer of jurisdiction over the case. And while "all parties support(ed) centralization" they couldn't agree on where to transfer it to. Prior to the centralization and transfer of the lawsuit, the courts had to agree that all lawsuits involve common questions of fact and that centralization will "promote the just and efficient conduct of the litigation."{3} It was determined that due to the interstate commerce of earplugs to the Department of Defense, the multitude of diverse locations involved in related lawsuits, and the capability of the judge in the Northern District of Florida, that the case was to be centralized and moved there. The particular element of this case that allowed federal courts jurisdiction is found under 28 U.S.C. Section 1332 which addresses the diversity of the citizens of different states. With the 3M trial meeting both requirements of the plaintiffs from different states, are also not from the corporations' headquartered state, and the dollar amount exceeds the threshold, this was able to be heard in a federal court.{4} 

    This resolution to the complex jurisdictional issues this collection of cases had allowed the trial to move forward and ultimately award those veterans who relied on 3M earplugs to protect their hearing. Veterans everywhere can now celebrate with a resounding "Huh? What?"

    One question this proposes, is that many active duty military personnel are stationed overseas. Even so, these overseas or deployed military members have to record a state of residence. If any overseas or deployed service members were involved, how does this affect the jurisdiction? Does the involvement of veterans (who are now considered civilians) exclude all military courts from being involved? Much of jurisdiction relies on the "citizenship" rules and almost all active duty and veteran personnel have complicated histories of where they consider, legally, their home.

    Does this mean that any product sold by a large company sold in multiple states would need to settle any lawsuits in a federal court? Is it possible for a lawsuit of this scale to remain in-state? What would that scenario look like?

{1} Schmidt CJ, Kerns RD, Finkel S, Michaelides E, Henry JA. Cognitive Behavioral Therapy for Veterans With Tinnitus. Fed Pract. 2018 Aug;35(8):36-46. PMID: 30766380; PMCID: PMC6263445.

{2} Gregg A, Tan E. 3M to Pay $6B to Settle Hearing-Loss Lawsuits Over Military Earplugs. The Washington Post. August 29, 2023

{3} IN RE: 3M Combat Arms Earplug Products Liability Litigation. 366 F.Supp.3d 1368 (2019)

{4} Mauet, T., Marcus, D., Pretrial, Eleventh Edition. P. 68 - 85

Welcome to the Lawsuits & Litigation Class Blog

 This blog is an integral component of our Lawsuits and Litigation MLS course. The purpose of the blog is to (1) promote out of class discussion on topics related to the course and (2) raise litigation questions or legal issues that are of interest to you so they may be discussed in class. You will be making posts and comments on the blog throughout the semester. See the course syllabus for details.

The blog is public. Consequently, the blog is displayed on search results and members of the general public may view posts. If there are potential sensitivities to making public statements in light of your current employment you should use an opaque user name. The blog uses the Blogger platform, which is a Google product. You must have a Gmail account in order to post on the blog.

We are going to have a great semester!

Cheers,

Randy