Hyatt v. Hill
714 P.2d 299
Utah
1986
Check Treatment

*1 Administrative Services v. Public Burnside plaintiff hap- Service also testified that Commission, Utah, hazardly inconsistently enforced al- its leged policies off, verbal Copper Corp. Employ- regarding Kennecott time attendance, Department and tardiness. He ees v. testified Employment Securi- that others allowed unexcused ab- ty, 13 Utah 2d occasions, sences required Accordingly, we view the evi- him work jobs where less than a full light in the dence most favorable Also, crew was available. Burnside findings. Giving Board’s considerable def- claimed that he worked extra time in the determination, erence to the Board’s we evenings pay. without additional Plain- the weight decline reassess of the evi- agreed tiff’s witnesses that Burnside sufficiently dence. The record before us worked hard job. while supports the determination that Burnside’s absences did not constitute cause for In view foregoing facts and discharge under 35-4- presented other evidence at the administra 5(b)(1)(Supp.1985),as amended. hearing, tive we cannot Re Board view abused its telephone hearing, At the there discretion award was con- ing compensation flicting presented by benefits the dis testimony parties charged employee. The plaintiff fact that whether Burnside had called in his disputing introduced evidence Burnside’s absences in advance and he whether testimony the conclusion clearly warned that future attendance unsup Board’s decision is either deficiency would termination. ported by any evidence or constitutes Plaintiff claimed that Burnside’s absences abuse of discretion. We will not disturb (Decem- Sunday Monday from work the Board’s plaintiff determination that 1984) ber were unexcused and carry proof. failed to burden its contrary to company policy, an unwritten employees. understood all The order of the Board Review affirmed. There was no documented evidence

presented as to Burnside’s absences or tar- STEWART, J., the result. diness which would corroborate claim of unexcused absences. Plain-

tiff it had admitted that no written attend- policy supporting testimony

ance its warning reprimand written no

given possible to Burnside to advise him of Also,

discharge. Burnside was not

any separation advising notice him as discharge. the reasons for his See Trotta HYATT, Diana Plaintiff and Department Employment Security, Respondent, 664 P.2d 1195 Burnside testified that was noti- HILL, Appellant. Mike Defendant and

fied of his absences before work on both days and that he had understood there No. 19899. problem no when Supreme Court of Utah. advised of the therefor. When de- reasons previous Sunday, off nied time Burn- Jan. problem side understood there would no weekend, taking off the next December being

He did not recall warned that he if

would be dismissed he ever failed

appear morning. work *2 for sought judgment

child. Plaintiff also hospital and medical plaintiffs the costs for during delivery and pregnancy care and per support. child month $150 trial. filed a demand Defendant demand, rul- The district court denied is no entitlement a ing that there peti- in a case. Defendant interlocutory to allow an tioned Court defendant appeal on the issue of whether in a a had a granted petition. This Court present proceeding The involved brought pursuant to Utah’s Uni- case Act form paternity proceed- -17.1 A §§ brought deter- ing proceeding2 is a civil illegit- identity mine the of the father child, support imate Blackham, City, Valley for de- Don West child, prevent the child from becom- and appellant. fendant and charge.3 ing public Dolowitz, Corporan, David S. Mary C. Credit In International Harvester City, respon- Salt Lake Implement, Corp. v. Tractor & Pioneer dent. Inc.,4 this Court held that article guaranteed the the Utah Constitution HALL, Chief Justice: legal in civil issues appeal, chal- interlocutory defendant On proceed- Court said cases.5 petition lenges denial of his ings of the Constitutional Convention Utah paternity case. affirm. trial in a We virtually “a intention unanimous disclosed part of the framers Constitu- filed an On right to preserve a constitutional seeking declaratory judgment (Emphasis by jury in civil cases.”6 father was the P,2d Paternity provi Brown v. See 1.The Uniform Act on cases). (1974) (bastardy cases are civil jury trial address the sion for (1964) (in juris- 94 A.L.R.2d fashion. The Uniform proceeding is to where the Paternity adopted by only dictions has been child, support almost it is father Kentucky, Ky.Rev.Stat. 406.011 §§ other states: nature). uniformly Maine, held to civil Me.Rev.Stat.Ann. tit. 19 to .180 (1964); Mississippi, Miss.Code §§ 271 to (1972 Supp.1985); People ex New 3. Ann. 93-9-1 to -75 & Cizek Hampshire, §§ 168-A:1 N.H.Rev.Stat.Ann. (1977 Supp.1983). alternate uni -A:12 & Act, Parentage in section the Uniform 14(d), that trial P.2d affirmatively,states Fifteen states the court without adopted Oldham, have deleted act. Some this uniform Storage, & Inc. v. 5. Welch Transfer 14(d). See, e.g., Ann. 40- Mont.Code section 6-115(1985). Coleman (where Dillman, Utah, it. Others have 26.120(5) (1985) (upheld litigant is not equitable § 26. Wash.Rev.Code issues are constitutional, Speed, right). ex rel. Goodner as a matter a trial de cert. Wash.2d nied, L.Ed.2d 119 103 S.Ct. Corp., 626 P.2d Credit 6. International Harvester (1982)). at 419. added.) saying, In so the Court section 10 of the Utah Constitution to virtually unanimously merely what has been held mean that “the constitutional right by jurisdictions preserved country: across the currently only exists constitutional to a trial actions so triable when the adopted.” preserved The majority exists *3 then reasons tions so triable when the that because in 1895when constitution was our adopted.7 there was no ac- putative to require tion father to contrib- in common law this state to the support illegitimate ute of his off- adoption of the Utah did Constitution not spring, the defendant right has no to a jury remedy afford a to fa- in paternity trial action. I believe that ther to to the support contribute of his it was the intent the drafters illegitimate Further, offspring. such a 10 to do than simply preserve more the right was not in the Utah terri- right in existing actions at that I -time. Therefore, torial statutes. defendant has is believe that it reasonable and wise to right jury no constitutional to a trial in this construe constitutional with suf- paternity action. flexibility changing ficient to meet condi- legislature This is not to that the entirely tions and not freeze them prac- to provide by in jury pater- could trial past. tices the nity fact, actions if it chose to do so.8 In prefer the jury construction of the trial statute, bastardy which was re- guarantee Oregon constitution which 1980, pealed provide jury in for a trial.9 by Supreme to it the Court of legislature, by repealing bastardy the that state in v. 1920 Studebaker statute, repealed also the included statu- Car, 254, 701, Touring 120 Or. P. 251 50 tory right jury to a trial. No other Utah (1926). case, In question A.L.R. 81 the right statute to a arose whether the owner of the automobile jury particu- trial in actions. jury an to action lar, legislature brought by the state to her forfeit automo- jury in Paternity. trial the Uniform Act on because her husband bile had Therefore, since there is no inherent consti- transport intoxicating it to a bottle of used right by jury tutional in liquor. holding that the owner of the legislature proceedings in this state and the jury automobile was entitled to a provided by right has for such a stat- said: court ute, right argued proceedings It is these con- jury in this respect prohibitory cern matters adoption laws enacted since the of the ZIMMERMAN, JJ., DURHAM and con- Constitution, and for that reason are not cur. Constitution, guaranty within the result): (concurring in the Justice concerning and that controversies viola- disposed defend- tions of them Legislature ant a trial I believe that courts in manner the adopt. narrowly sees fit to The answer to this too construes article 367, 381, adoption 7.E.g., Apuzzo, v. the time of of the Minnesota Con- Robertson 170 Conn. 824, 831, denied, 852, stitution). 365 cert A.2d 429 97 S.Ct. 126 50 L.Ed.2d 81 Ill.App.3d Conn, at 37 Ill.Dec. at Robertson, 8. at 365 A.2d Russell, Mo.App., at 598, v. 593 S.W.2d Miller 824; Azzarello, at (1979); Speed, at 840- 604-05 96 Wash.2d 401 N.E.2d at 1181. 94 A.L. P.2d at 14-16. (1964) (and R.2d therein). cases cited U.C.A., 1953, repealed seq., was et Minn., Bailen, v. Smith Act of ch. (defendant N.W.2d 118 Utah Laws right jury had constitutional where proceedings in such v. quasi-criminal is the constitutional nature. Smith Rob- contention narrowly bins, not to be Mich.App. 283 N.W.2d 725 construed, strictly and is limited held our actions to be We have existed those cases which it had before civil. Brown Constitution, adoption of the Arkansas affords trials in like nature extended cases of proceedings pro- statute bastardy under a they may arise. hereafter viding for the money. court cited with for the Waddell 704. The 251 P. at Id. Meeks, Ark. Lisk, App.Div. ex approval 43 v. State Colon (1897), it was held that A.L.R.2d Kan- N.Y.S. where S.W.2d not limited under a similar stat- trial was sas denies trials previously Herbert, been cases where ex ute. State rel. Williams *4 but embraced cases of the same afforded Kan. 152 P. 667 arising. thereafter class statutory right seem U.C.A., wording foreclosed to be I, article This construction of broader provides: § particularly justified 10 is since that section does contain restrictive specific In actions for the wording found personal property, with or real with- Many of them many state constitutions. damages, money out or for claimed as words that contain restrictive “the damages upon due contract or as right to trial shall remain inviolate” contract, injuries, or for breach Const, Const, I, 19; (Conn. art. Wash. § jury, of fact be tried issue I, 21), or “the as art. § is waived or refer- unless enjoyed remain heretofore inviolate” ence is ordered. Const, (Ill. Mo. Const. art. § A action is none of above. 22(a)). provisions were the art. These § the defendant a of the decisions in the case cited and basis paternity actions because opinion, upon foot- relied state, exist in 1895 in this I, section 10 uses note 7. article paternity actions are similar to ground that “inviolate” in connection the word paterni- issues of divorce actions capital cases. The intent of framers with visitation, support are ty, custody, com- cases, capital should monly Divorce actions raised decided. jurors and to consist of twelve continue statehood, eq- considered As to non- be unanimous. verdict nature, uitable and no cases, capital to trial point- has not existed. The defendant language. without restrictive assured to find out and have been unable ed version of the Uniform case of like or a case same -17, § class, which was tried on the is silent Of by jury at the time our state constitution adopted this states which have uni- the six adopted. part, in whole or in states (Ky. added the have J., STEWART, concurring 406.061; 19 Me.Rev.Stat.Ann. Rev.Stat. § 93-9-15; opinion of J. 276; Miss.Code 1972 R.I.Gen. § § 15-8-8). The other two Laws states, Hampshire New any provision jury trial. add the uniform have not

states which statutory

act but which actions, are jury trials sometimes the action theory

afforded