*1 applied irrigation change, proof of to to run off their share- make the burden holders’ lands. rights change impair would Steed’s be on Reser- New Escalante. Piute Significant irrigation amounts of water Irrigation Panguitch voir & Co. West through evaporation, seepage, can be lost Co., 13 Utah 2d Irrigation & Reservoir encourage or other means. We must (1962)(citations omit- 367 P.2d greater efficiency through water-saving ted). techniques. As former Chief Justice appropriately Way- Crockett so noted in responds it New Escalante that was not Corp. years Murray City man v. some 23 required change application to file a and ago: importance “Because of the vital of approval proposed change obtain of statutory ... water both our and decisional propose change to because it did not recognition law have been fashioned in diversion, use, place place purpose or desirability necessity and of the of in- contemplated by of use as 73-3-3. section suring highest possible development argues New Escalante that both the for- and of the most continuous use beneficial purpose purpose mer of use and the new of all available water as little as waste irrigation. use need are same: 97, 100, possible.” 23 2d 458 P.2d approval and do not decide here whether (1969) (citations omitted). change application required. view only of the concession of Steed Judgment affirmed. affected, proof
burden of would be there is prejudice no to because it Steed bears HALL, C.J., STEWART, and DURHAM proof in burden of this action. ZIMMERMAN, JJ., concur. opinion,
As discussed earlier
eighty years of unbroken case law right Escalante’s shareholders New recapture seepage waste and water be- escapes though
fore it their lands even
long-time seepage users of the waste deprived Clearly,
are of the “second use.” rights
no vested im- of Steed have been
paired by change, irrespective of where proof
the burden of lies.
V. CONCLUSION state, Because Utah is an arid efficient BARNARD, Brian M. Plaintiff and beneficial use of water should en- Appellant, couraged. objective, In furtherance of that appropriator encouraged should be
apply Bar, water in the most efficient manner. Toni M. SUTLIFF Utah State Any technique Appellees. which conserves water con- Defendants and sumption and reduces waste is commend- 900241. No. able. It is unfortunate that lost Steed previously some way water which found its Supreme Court of Utah. augment in Alvey water Wash. Dec. However, absent a natural connection be- tween the water the wash and the water
New Escalante diverted from the Escalante
River, acquired right Steed no vested
compel New Escalante to allow water *3 Pace, Barnard,
John Brian M. Salt Lake City, plaintiff appellant. Rees, Kipp, Carman E. Robert H. Salt appellees. City, Lake for defendants and ZIMMERMAN, Justice: appeals Brian M. Barnard from a district finding and judgment order that he of violated rule of the Utah Rules Civil imposing Procedure and sanction of a $4,381. The Third District Court found jur- failed to its Barnard had research properly filing isdiction a suit seek- before ing enjoin disciplinary proceeding a bar against him. Barnard contends that he did rule 11 made a rea- not violate because he the of the sonable into status and his research revealed that Utah law is jurisdictional question. unclear on the Be- cause we find that the district court’s imposing the sanction are in er- bases for ror, we vacate order and remand. its of Bar April Utah State complaint alleging a that Barnard received rep- had ethical violations while committed resenting handling a client. the com- plaint, the Office of Bar Counsel followed Discipline Procedures of of (codified Bar in Utah Code Jud.Ad- State 14) min. Dis- ch. Procedures [hereinafter cipline copy a of the and forwarded com- ] plaint trying After for four to Barnard. informally months to resolve matter Barnard, complainant between of Bar sent Barnard com- Office Counsel him plaint letter. letter informed The allegations would screening panel Disciplin- of the Ethics and ary Committee.1 letter also stated opportunity screening panel pear panel if the before screening panel members Bar four is selected enteen members 1. five-member public. among Discipline, Ethics and Procedures the members of the (c). Committee, IV(a), Disciplinary consists sev- which seeking reprimand was filed a sanctions for viola- private motion that a determined hearing committee of Utah Rule Civil Procedure or before tion warranted screening panel alia, panel alleged, determined inter that Barnard if the The Bar was warranted. complaint duty that a formal to make a had breached his IX(b). Discipline, rule Procedures prefiling inquiry into the law had whether the district court determine 2nd, Toni August telephoned On disciplinary pro- enjoin a jurisdiction to bar Counsel, Sutliff, Bar to learn Associate ceeding. Bar that this court asserted panel who screening members names of authority over dis- supervisory has sole bar assigned Although case. his would be implementa- ciplinary proceedings and during happened accounts of what rules. tion bar differ, parties telephone conversation both *4 that agree Sutliff informed Barnard that responded Barnard with an affidavit to a assigned yet his had not been case that again He asserted a memorandum. Barnard, According to Sut- specific panel. him she not release Sutliff had told not dis- she would liff further stated that panel prior the members to the names of panel even close names of the members the hearing. Barnard further asserted the assigned to had been after Barnard’s case faith, good he he filed the suit in oppor- him no specific panel, giving a thus law, good inquiry a into the made faith tunity hearing determine the to before knowledge personal he of the had might biased any panel member be whether filing complaint. facts before the Barnard neither nor against him. Sutliff admits might by filing conceded that he have erred any In making this latter comment. denies court, he the suit in district but insisted event, con- hours after their within several that such an error would not merit sanc- versation, filed suit in district Barnard explained He that he had successful- tions. proceeding enjoin court to the Bar ly filed earlier suits in district court two screen- until it disclosed the names the pertaining practice the against the Bar to case, ing panel assigned his members acknowledges of law. Barnard that both Bar- Sutliff and a constable served with would, blush, the earlier suits at first complaint. nard’s summons and jurisdic- appear within the exclusive the receiving complaint, Const, After Barnard’s court. Utah art. tion See dismiss, claiming that Bar filed a motion to suits, VIII, However, dis- in both the § jurisdiction the court to hear district lacked to dismiss for trict court denied motions court only supreme the case and that jurisdiction lack of and ruled on the merits. disciplinary proceedings. could bar review Thus, he led to believe that the district filed, the Sometime after the action was proper court would be a forum for his assigned complaint against Bar Bar- any present suit. Barnard did not describe screening panel, specific nard and be- to a steps undertook to research the law held, the panel hearing fore the was to be jurisdictional question. underlying the provided Barnard Office of Bar Counsel granted the rule district Af- panel names of members. motion, reasoning that “it is no defense to names, he uni- ter Barnard these received jurisdiction suggest that the District laterally his suit. Utah dismissed improperly prior has 41(a)(l)(i). Court been invoked on dis- R.Civ.P. In his notice of missal, justification improper for an Barnard Bar had occasions as a stated grievances: It had filing satisfied both of his a third time.” The court also stated: screening him of informed the names Barnard made a Mr. [H]ad panel procedures it members and of pertain- into the status of the law screening assigning uses in case to a jurisdiction regarding ing to issues of panel. controversy nature of the reflected suit, present ... it would have been clear January four after months complaint, his the Bar that the District Court was not the withdrew argued The Bar re- the Bar as sanctions. which to seek propriate forum within basis, directed to an issue deter- that this material was lief. On that this Court already rule 11 had been plaintiff has failed decided—whether mines that and has therefore than to the issue before proper inquiry, violated—rather make court—the amount of the sanction. violated Rule 11.... agreed The district court and struck the the Bar to submit The court then ordered untimely material because it was contested attorney it incurred fees statement Then, and irrelevant to the issue at bar. defending against Barnard’s suit objections to the amount of rejecting his object he could Barnard that informed fees, the trial court the Bar’s when it was received. the statement $4,321. the Bar awarded statement, After the Bar submitted the pur- trial Barnard filed a motion for new “Objec- document entitled Barnard filed a (6) (7) subparts Rule suant to tion,” challenging only speci- the fees 59(a). Procedure Utah R.Civ.P. of Civil statement, in the but also court’s fied 59(a)(6),(7). He asked the court to recon- 11 mo- findings the merits of the rule had question of whether he violat- sider challenge to the tion. of his the stricken ed rule. 11 and resubmitted merits, Barnard filed a second affidavit *5 motion, his The court denied affidavits. time the which he outlined for the first improper attempt by stating that it was an conducting legal re- steps he took in his have the court reconsider its Barnard to filing said that before search. Barnard impose sanctions. Barnard now decision to suit, Integration he reviewed the Rules for appeals. Bar Management and the Utah State of Discipline and the to deter- Procedures of of first address the standard any required if mine there was rule that yet com This court has to address review. challenging actions the conduct of the Bar of review for prehensively the standard brought only Supreme in the to be Utah rulings under rule 11. Howev trial court said he researched the Court. He also er, have taken three the federal courts provisions govern- code constitutional and approaches to this issue. See distinct ing jurisdiction Supreme Utah Note, Considine, Rule 11: Christopher A. Digest topics deal- Court cases and Pacific Re Conflicting Appellate Standards of ing lawyer discipline. He said that he Approach, Proposed view and Uniform from his research that no consti- concluded (1990) 727, 734-37 75 L.Rev. Cornell [here statute, law, provision, or rule tutional Greco, Note, Considine]; Louis inafter deprives juris- of clearly the district court 11 Appellate Review Rule Standard declaratory grant injunctive diction to of of 251, Decisions, L.Rev. 255-60 58 Fordham lawyer against relief the Bar’s conduct of a rule 11 is wording of Utah’s discipline matter. In addition to his affida- respects to the fed in all material identical vit, eight affidavits submitted version; therefore, survey fed eral who, practicing attorneys from other their approaches to determine eral courts’ request, at Barnard’s also researched Although arewe persuasiveness. relative juris- court has issue of whether a district decisions, they by federal these bound against grant injunction diction to interpretation develop our may help us to lawyer discipline mat- procedures Bar’s in a rule. Pate v. Marathon Steel ter. Each affiant stated that could 1984). (Utah Co., 765, 1 P.2d 767 & n. 692 jurisdic- any denying find district court tion. appel- by federal approach One followed of review late courts uses three standards Barnard’s “Ob-
The Bar moved to strike 11 considering court’s rule deter- a trial jection” and affidavits to the extent See, e.g., Theater the minations. West Coast they question did not on the of bear 1519, Portland, 897 F.2d sought Corp. City v. reasonableness of the fees of 1234 Volcker, adopted some Cir.1990); v. the Court elements (9th Kurkowski
1526
(8th Cir.1987);
clearly
201,
de
erroneous standards.
n. 8
Zaldi
novo and
819 F.2d
203
City
Angeles, 780 F.2d
concluded that
district
Court
var v.
Los
“[a]
of
(9th Cir.1986).
necessarily
The trial court’s find
its discre-
828
abuse
clearly
under the
ings
ruling
fact are reviewed
tion
its
on an erroneous
if it based
The trial
ulti
court’s
erroneous standard.
clearly
or on a
erroneous
view of the law
11 was
rule
violated
conclusion that
mate
U.S.
assessment of
evidence.” [496
are
any subsidiary
conclusions
at
110
at
The decision
S.Ct.
2461.]
error
correction of
reviewed under the
mixed
has thus sent
Cooter & Gell
the trial court’s determina
standard. And
hand,
Supreme
signals.
the one
On
type
and amount
sanction
tion as to
Court has reasoned that
the abuse
under the
imposed
abuse
to be
is
applies
aspects
discretion standard
to all
Zaldivar,
E.g.,
780
discretion standard.
determination,
11
on the
of the Rule
but
at 828.
F.2d
hand,
suggested
other
the Court has
the de
decisions which breach
sanctions
approach
appel
taken
federal
Another
clearly
novo
also
or
erroneous standards
uses
11 cases
two stan
late courts
the abuse of discretion standard.
violate
See, e.g.,
dards of
International
review.
essence,
the decision in
Gell
Cooter &
Teamsters, Chauffeurs,
Bhd.
Ware
may
implicitly adopted the same
(Airline
America
Helpers
housemen &
tripartite
expressly
standard of review it
Attendants,
Div.)
Flight
v. Association of
rejected.
(D.C.Cir.1988);
AFL-CIO,
173,176
864 F.2d
Clark,
F.2d
Donaldson
al.,
Proposed
et
Amend-
Sam Johnson
(11th Cir.1987)
banc);
(en
Westmoreland
Urgent
ments to Rule 11:
Problems
(D.C.Cir.
CBS,
1174-75
770 F.2d
Solutions,
Baylor
Suggested
L.Rev.
*6
1985).
approach,
Under
abuse
(1991).
661-62
reviewing
in
is used
discretion standard
Even
make some sense of the
if we could
type
as well as the
factual determinations
Gell,
in
we
conflicting statements Cooter &
legal
and amount of sanctions.
conclu
adopt
decline
the abuse of discretion
that rule 11
violated is
sion
was
sole
of review of
standard as the
standard
Westmoreland,
E.g.,
for
770
correctness.
findings.
trial
11
think
court’s rule
We
F.2d at 1174-75.
that an
of discretion standard would
abuse
by
approach
The third
taken
federal
in
too
trial courts
vest
much discretion
single
pellate courts in rule 11 cases uses a
questions
resulting
indeter-
on
of law.
discretion,
standard,
reviewing
in
abuse of
minacy
great uncertainty in
create
See, e.g.,
trial court
all
determinations.
ambigu-
already
an area
from
suffers
Co.,
746,
861
Kale v. Combined Ins.
F.2d
in
ity
governing
standard of conduct.
(1st Cir.1988);
Capital
758
Thomas v.
Sec.
generally
Considine at 737-42.
See
Inc.,
866,
(5th Cir.1988)
Serv.,
836 F.2d
872
Nelken,
Melissa L.
Sanctions Under
(en banc).
Supreme
States
United
Federal Rule
“Chill-
Amended
11—Some
adopting the
Court said that it was
abuse
ing”
Struggle
Problems in the
Between
to review all
11
of discretion standard
Punishment,
Compensation
74 Geo.
and
determinations in
& Gell Hart-
Cooter
v.
1313,
(1986).
L.J.
1333
384, 405,
Corp.,
marx
496 U.S.
110 S.Ct.
approach,
As
the two-standard
for
2447, 2460,
1235 Hamilton, (Utah applied Ct.App.1991). Finally, P.2d 204 239-40. In we Id. at in Taylor, Capital standard to review in 770 P.2d at the abuse of discretion balancing of in de- Corp. Department trial court’s interests Business General (Utah termining admissibility of evidence un- Regulation, 837 P.2d 570-71 Ct.App.1992), appeals der Utah Rule of Evidence the court of used the context, balancing for reasonable- reviewing review in abuse of discretion standard However, applied ness makes sense. when type imposed and amount of sanctions determination, a review for to a factual under rule 11. little
reasonableness would seem to have
Returning
present appeal,
we first
independent meaning.
simply cannot
consider whether the trial court abused its
finding’s being “rea-
conceive of a factual
denying
discretion in
Barnard’s motion for
against
sonable” if it is
the “clear” or
refusing
a new trial and
to consider the
evidence,
“great” weight of the
the test
moved
resubmitted affidavits. Barnard
reviewing
in
factual find-
usually applied
grounds specified
a new trial under the
P.2d
ings. E.g.,
Riley,
Bountiful
59(a):
(6)
(7)
“[ijnsuffi-
subparts
of rule
(Utah 1989);
Reid v. Mutual of
ciency
justify
of the evidence to
the verdict
Co.,
P.2d
899-900
Omaha Ins.
decision,
against
or other
that it is
law”
or
(Utah
52(a).
1989); see Utah R.Civ.P.
“[ejrror
in law.”
R.Civ.P.
whole,
On the
we conclude that Utah
59(a)(6),(7).
challenge
of his
appellate courts should use the three-stan-
ruling, he
previous
the trial court’s
resub-
approach
reviewing
dard
a trial court’s
detailing
steps
mitted an affidavit
findings.
It uses understood stan-
jurisdictional issue and
took to research the
review,
appropriate
dards of
accords
discre-
attorneys averring
affidavits
other
making
judge
tion to the trial
the diffi-
research,
jurisdic-
upon their
that based
judgment
appropriate
cult
as to what an
tional issue was unclear.
be,
may
upholds findings
fact
sanction
contrary
weight
clear
unless
to the
matter,
find that
As a threshold
evidence,
preserves
the role of the
not to consider the
the trial court’s decision
appellate
defining
court in
what constitutes
of discretion.
was not an abuse
affidavits
a violation of the
standards set
clearly constitute evidence.
The affidavits
*7
rule 11.
59(a), newly proffered evidence
Under rule
(4),
only
subpart
under
which
is admissible
approach
adopt today
we
is consis-
proffered evidence be
requires that
the
jurisprudence
tent with the rule 11
that
pro
such that the
“newly discovered” and
appellate
developed thus
Utah
courts have
not,
reasonable dili
ponent “could
Booth,
example, in
far. For
Clark v.
821
produced at the
gence, have discovered and
1146,
(Utah 1991),
re-
P.2d
1149-50
we
59(a)(4). Even if Barnard had
trial.” Id.
findings
in a rule 11
viewed
of fact
case
surely
he
proceeded
subpart,
under this
using
clearly
the
erroneous standard. And
met
these standards.2
would not have
163,
in Taylor
Taylor,
v. Estate
770 P.2d
properly
court
Having decided that the trial
(Utah Ct.App.1989),
171
the court of
affidavits,
the
we can
declined to consider
peals
legal
the
conclusion that
denying
say
judge’s
not
that the
decision
11
rule
had been violated for correctness.
beyond
trial was
Barnard’s motion for new
Rimensburger
Rimensburger,
See also
(Utah
reasonability.
the
Hamil
Ct.App.1992)
841 P.2d
710
bounds
See
(amended
Willis,
ton,
Consequently, we
opinion);
811
conclude that
trial
jurisdiction to hear
matters was
had
similar
its discretion.
Second,
determined
irrelevant.
the court
the
of Bar
turn to
merits
We now
rea
could
have made a
that Barnard
challenge
original
to the trial court’s
nard’s
concluded,
it
based
inquiry
sonable
because
that
had violated
finding
order
review,
is
its
the law clear
reason
11
he failed to make a
rule
because
lawyer
in our
for all
jurisdiction lies
into
We first review
the law.
inquiry
able
these
discipline matters. Because both of
law. Rule
is violated
applicable
conclusions,
effect,
are,
legal
grounds
fails,
alia,
a
attorney
inter
to make
an
when
for
Ri
we review them
correctness. See
inquiry
the com
to assure that
reasonable
mensburger,
In the instant the trial court essen determining then law tially finding that because the relied on two rationales for clear, Barnard must not have reason that Barnard did not make a reasonable First, First, ably inquired held into the the rea into the law. the court law. hinge does knowledge inquiry analysis Barnard’s that two other sonable not procedures specific arises out of a solely on is clear. whether matter, no matter denom- disciplinary how actu- should be on what focus Second, inated, effectively amounts to an interlocu- researching the ally did in law. appeal request for an extraordi- important, disagree tory or a perhaps more nary proceeding in that and should be that the law is clear writ the trial court brought only this court. Under section in this court for the jurisdiction lies 78-2-2(3)(c), appel- brought this court has exclusive against type of action Barnard matters, jurisdiction all such in- late over Bar. brought by cluding suits such as the one Integration Under Rules of Likewise, only this court has the Barnard. Bar, ac- Management the Utah State practice rule-making power over the of law grounded allega- against lawyers tions procedures of the Bar. Utah and the pursued conduct must be tions of unethical Const, VIII, Therefore, chal- art. 4.§ in the according procedures to the set forth lenges general procedures to the Discipline. See R.Int. & Procedures of Bar, arising specif- though even from a (C)12. procedures plainly Mngmt. These case, lawyer discipline must be filed in ic indicate the Bar and its committees petitions for this court as modification the first and exclusive forum for inves- are original jur- the rules. No other has tigative alleged unethical con- actions procedures and isdiction to consider the by attorney. Procedures Disci- duct Bar, by way whether of suit or rules VIII, IX, XI, Appeals XII. pline, rules petition relief. other lawyer discipline proceedings from these Const, judgment only. art. We vacate the order are to this court VIII, 4; 78-2-2(3)(e); remand the matter to the Ann. sanctions and Utah Code § § XIV; may impose The court still Discipline, rule see district court. Procedures of findings appropriate if Ann. 78-51-19. sanctions it makes also Utah Code Section § 78-2-2(3)(c) opinion. with this grants also this court exclusive consistent interlocutory ap- appellate jurisdiction over discipline
peals lawyer matters. HOWE, DURHAM, J., A.C.J., and concur. However, clearly the law does not state original jurisdiction lies for actions
where STEWART, J., concurs in the result. challenging general procedures of the Additionally, injunctive Barnard’s Bar. HALL, (Concurring and Chief Justice: violating suit asserted that the Bar was his Dissenting). rights process. constitutional to due This jur- agree I has exclusive that this court seeking an interpreted claim could be as disciplin- challenges to Bar isdiction to hear extraordinary writ the nature of manda- by reason of ary matters. This is evident mus, necessarily which fall into does Ann. unambiguous terms of Utah Code category interlocutory appeals cov- 78-2-2(3)(e) unambigu- and the likewise § 78-2-2(3). by ered section rule-making authority afforded arti- ous sum, the trial court relied on errone- VIII, cle section 4 of the Utah Constitution. ous bases to find that Barnard violated his vacating I therefore do not concur duty reasonably investigate based judgment of the trial court that was Therefore, we must reverse the trial law. *9 conclusion, supported by plainly granting rule 11 sanctions court’s order facts, reason- that Barnard had not made a against Barnard. fact, it was inquiry into the law. able ruled that he was clarify jurisdictional not until after the court
We now of rule subject sanctions for a violation law for future cases. The district court did not, fact, the extent of his jurisdiction mat 11 that Barnard revealed over this then, review general Even he failed to Any challenge ter. to the Bar’s research. of the content of apprise the court pro- constitutional dispositive statutory and forth. hereinabove set
visions Jr., KELLEY, R. Plaintiff
William Petitioner, FINANCIAL CORPORA-
LEUCADIA
TION, corporation, Defen- a Delaware Respondent.
dant and
No. 900187.
Supreme of Utah. Court
Dec. 1992.
Rehearing Denied Feb.