Lorenc v. Call, 789 P.2d 46

Lorenc v. Call

789 P.2d 46

Utah Ct. App.

1990

Check Treatment

*1 evidence or susceptible evidence of dif-

fеring interpretations, greater there is a they improperly

likelihood that will be

influenced remarks of counsel degree

... and a small of influence

be sufficient to affect the verdict.

Troy, (quoting State v. Or.App.

Seeger, 479 P.2d 240 present case, tending the evidence

prove guilt overwhelming defendant’s against

when balanced evidence

tending prove manslaughter his theory, improbable, contradictory,

his and self-

serving accounts of his actions. "W?con- jury simply

clude that chose not to We, therefore,

believe theory. defendant’s prosecutor’s

find that remarks were prejudicial, and that the trial court act-

ed within refusing give its discretion in proffered

defendant’s instruction.

Affirmed. LARSON, JJ.,

BENCH and concur. LORENC,

Gwen Plaintiff and

Appellant, CALL, capacity

John Reed in his official Superintendent of Schools of the District;

Granite School and the Board

of Education of Granite School Dis

trict, Respondents. Defendants

No. 890286-CA. of Utah.

March *2 of financial hard-

er of fees on basis regulations or ship. No written rules were parents in to guide to order distributed might qualify how a plaintiff as to she for waiver, and fee waiver. She was denied a to District’s fee waiver was referred appeal decision. administrator merely met and administrator City, Plenk, for M. Salt Lake Bruce eligible “par- a that she was determined appellant. tiff and unpublished policy tial waiver” under an Fisher, City, de- Lake Byron M. Salt “partial ap- waivers." This providing for respondents. and fendants peal “hearing” was conducted with no for- procedures. mal notice and without written BENCH, аnd BILLINGS Before appealed of fees Plaintiff GREENWOOD, JJ. District, requesting a formal decision to hearing. hearing was sched- No formal BILLINGS, Judge: uled, however, until.more than six months appeals judgment Plaintiff adverse later, sought declaratory after a former denying her claims that defendants’ preliminary permanent judgment and and procedures violated policy fee waiver and injunctive relief in Third District Court. rules, law, and hoard of еducation 9, 1987, the District conducted On March of clause the fourteenth hearing formal in which was a amendment of the United States Constitu- permitted and represented counsel was I, section 7 of the Utah tion and article present and cross-examine wit- evidence and remand. Constitution. We reverse hearing, plaintiff’s appli- After the nesses. opinion is this issued We note that again denied for a full waiver was cation case, prior this Lo place opinion our by the District. Call, (Ct. Adv.Rep. renc v. on March App.1989), which was vacated proceeded to trial on lawsuit Plaintiff’s petition for rehear 1990. As result hearing evi- May 1987. After case, ing in have this we concluded that dence, determined that the trial court previous opinion error on the issue to state law fee conformed right attorney fees plaintiffs to recover by thе rules (1981), and there under 42 U.S.C.A. § (Board) pro- Board of Education State grant requested fore the relief procedural adequate notice vided rehearing. petition for wishing to fee waiv- those seek tections to ers. FACTS inception At 1986-87 school OF DISTRICT POLICY VALIDITY single Lorenc was a

year, plaintiff Gwen the District’s fee claims that children, parent six minor three of whom than the policy is more restrictive in the secondary schools Granite waiver attended rules, and by the Board’s (District). Prior to com- established District School provide, classes, rules District advised thus The Board’s invalid. mencement parents pertinent part: that fees would in plaintiff and other activi- on students for various imposed provide, as of education shall board ties, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍books, The District and materials. schedule, for any part of plaintiff a total subsequently assessed provisions to adequate or other waivers secondary three almost $200 op- no is denied the ensure that school students. in a class or portunity activity supported school-sponsored or September On contacted fee. high principal school a waiv- proce- The waiver shall include constitute assistance as above de- fined.) dures to ensure that: Administrative July Memorandum No. *3 29, 1986.1 (4) provisions fee waivers or other Plaintiff asserts that the District’s fee lieu of are to all fee waivers available policy unduly waiver restricted waivers to custody students who are in state or recipients program of certain welfare bene- receiving public in the assistance form of preventing fits and lacked measures for children, relief, dependent general aid to delay, reviewing alternatives, for waiver income, supplemental security or foster processing appeals. compari- and for care, parents guard- and others or whose son, the Board’s rules do not limit fee waiv- financially pay. ians are to unable recipients public assistance, ers to 300-407-6(A)(4) Utah Admin.Code R. provide parents waivers to “others whose (1987-88). guardians financially pay.” or are unable during The District’s in effect Plaintiff concedes that the assеssment of year pertinent provided, 1986-87 school secondary fees for school students is con part: X, stitutional. See Utah Const. art. 2.2§ Fees, by as identified the Granite accepts Plaintiff also as valid the Education, School District Board of will provisions permitting enacted in 1986 local be waived in accord with Utah State school districts to authorize student fees Board of Education adopted by Board, standards for stu- under rules and the parents legal guardians dents whose or waiver for such fees. See 53A-12-102, Utah Ann. recipients public are the Code -103 assistance in §§ (1989).3 Furthermore, plaintiff does not Dependent Children, the form of Aid to challenge rules Relief, Supplemental Security General implement Board to sections 53A-12-102 Income, Care, Foster or other benefits and -103. provided through Department of So- cial Services due tо a limited financial begin analysis by reiterating We ability (The family. within the receipt of standard under which we review a trial unemployment compensation and/or free court’s conclusions law: we accord them price or reduced school particular deference, lunches does not “no but review them Though pertinent proceeding, not to this participation Ad- a condition for student class, ministrativе activity, sored, program provided, Memorandum No. 24 was amended spon- or 18, 1989, September to make fee supported by waivers avail- or or financially pay. district, able for all students unable school or school unless authorized adopted by the local school board under rules Const, pertinent dispute, 2. At times to this Utah the State Board of Education. X, provided: fee, art. (2) § deposit, charge, expеnditure A or may required elementary not be school common schools shall be free. The part regular departments system activities which are day sup- other of the school shall be ported provided by during regular or for as materials used law. day. interpreted "Common schools” school has been grades (Formerly through eight. (Supp. Logan City mean one Utah Code Ann. § 53-7a-l Kowallis, 1987) (amendments changes School Dist. v. reflect minor X, phraseology)). P.2d ed, Article 2§ was amend- (1989) July effective Utah Code Ann. 53A-12-103 to read: —Waiver elementary secondary Public of fees. schools free, except Legislature may require, part A local shall be school board shall as au- granted imposition secondary thorize the authorization under Section fees in the 53A- adequate provi- schools. waivers or other sions are available to ensure that no student is (1989) 3. Utah Code Ann. § 53A-12-102 —State opportunity denied the fees, deposits, on student or other fee, required deposit, of an charges. charge. or fee, (1) deposit, charge may (Formerly or other (Supp. not Utah Code Ann. 53-7a-2 made, any expenditure 1987) (amendments required or changes reflect minor parent guardian, student phraseology)). or the student's or Admin.Code R. Corp., payment.” lieu of feе v. BMG for correctness.” Scharf Camp v. 1985); (1987-88). this lan- (Utah We believe 300-407-1F Servs., Recovery interpreta- 779 P.2d guage capable of but one Office of (Utah Ct.App.1989). eligible fee is either tion —a provision No is made or not. enlarge, extend “abridge, Rules payments or for the reduction of creating right or modify the statute imposition fees. v. Nation Crowther duty.” imposing the Co., Mut. Ins. 762 P.2d wide by the conclude that the issued We Freight, IML (Utah Ct.App.1988) (quoting mоre restric- July District on Ottosen, Inc. v. rules on fee tive than the Board’s waivers *4 1975)). rule if “it con A becomes a designed implement. Since the it was a rule.” Utah the definition of forms to resulting policy conflicts with the (1989). 63-46a-2(10)(b) poli Ann. Code § participation objective ensuring student than the rule more restrictive cy thus pay, by all those unable we invalidate 53A-12-103, ab under section policy. the District’s objective in ensur rogates legislature’s hоlding, In of our we need view opportu is denied ing “that no claim. See process reach inability nity to (Utah Monson, 240, Hoyle v. P.2d 242 606 Ann. required Utah Code pay the fee[s].” 1980) (constitutional questions not to be are (1989). When such adminis 53A-12-103 § merits can be deter- addressed where the policies regulations and “conflict trative grounds).4 other mined on Act,” duty a design of an we have Crowther, 762 P.2d at them. to invalidate PEES ATTORNEY v. Travelers Indem. Co. (quoting 1122 Barnes, 278, 300, attor appeal, plaintiff P.2d 303 In her 191 Colo. 552 (1976)). Rights Attorney’s ney fees under the Civil 1976, 42 U.S.C.A. Fees Awards Act of case, In this the trial court conclud per (1981). provision federal 1988 This imple fee waiver ed that “[t]he pre attorney fees to the mits an award of District meets mented Granite School any proceeding brought vailing party in requirements of the law and of 1983 and other sec under 42 U.S.C.A. § authority for determination Id. Although civil title. tions of the apрropri student’s pur are not limited to cases such claims However, ately assessed.” courts, plead a party a must sued in federal policy limits the waiver of fees to those qualify claim to federal civil receiving public assistance. This families Application attorney fees. See award of clearly more restrictive than the Board’s Robison, 440, 1055, 695 P.2d 107 Idaho waiving students whose regulation fees for (Ct.App.1985). 442 public not receive assistance families do pay. but are still unable to a plaintiff’s complaint states Whether 1983 is a for relief under section granting partial practice The District’s Southworth, 611 question of law. Brule contrary to the Board’s fee waivers is also (citing Bell v. Cir.1979) 406, (1st as, F.2d 409 “waiver” rules. Those rules define Hood, 327 U.S. S.Ct. pay- “[rjelease requirement from (1946)). claim for “To state a any provision in 90 L.Ed. 939 fee and from ment of a invalid, аnd alleges promul- with the rules remains District conflicts 4. Plaintiff also that the "policy” policies" gated fee waiver board “rules and an unannounced that all local school filed, this secret writing, takes issue with and referenced for must be “in grounds. equal protection The record cess and Code Ann. access.” officially District had is unclear whether the (1989); 53A-3-402(14) Athay v. De- see also although policy, there is testimo- adоpted a such 965, Regulation, P.2d partment Business draft- ny administrator that he had from the fee 1981) (failure publish guidelines than the announced ed a less restrictive arbitrary in violation of due constituted policy, than that of the still more restrictive process). merely any policy that note that Board. We 1983, complainant erally relief under section entitled to an award of (1) allege only person need some de under if thе plaintiff prevails section 1988 complainant right, prived privilege statutory, non-civil-rights on a claim which immunity by the federal secured constitu pendent to a substantial constitutional tion; (2) person that such acted under claim and which arises from a “common Soc’y color state law.” International nucleus of fact.” Smith v. Rob- Consciousness, Krishna Inc. v. Colo 992, inson, 3457, Fair, (Colo. rado State (1984); 82 L.Ed.2d 746 Maher v. 1983) (en banc) (citing Toledo, Gоmez v. Gagne, 448 U.S. 133 n. 100 S.Ct. 446 U.S. 100 S.Ct. L.Ed.2d 572 2570, 2575-76 n. 65 L.Ed.2d 653 Steinglass, S. Litiga- See also Section 1983 Plaintiff, in the cause of 23.2(a) (1988)(foot- second action of tion in State Courts § complaint, alleged that the District had omitted).5 *5 process the clauses of fourteenth amend- procedure the that utilized the District prevailed ment. Plaintiff in a consent de- timely for fee waivers her a denied and fair statutory cree on her Supreme claim. The hearing appеal initial on her upheld Court the nevertheless district for a fee the trial waiver. At below and court’s award pursuant of her counsel fees appeal, plaintiffs likewise on constitutional Rights Attorney’s the Civil Fees Awards developed. claims ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍were further Act 42 U.S.C.A. argues that the fee waiver Maher, U.S. at S.Ct. at 2576- only controlling District not violated approved 77. The Court the “award of regulations, that, law and also imple- plaintiff prevails fees a case in which mented, process it violated the clause wholly statutory, non-civil-rights on a claim fourteenth amendment. Plaintiff pendent to a substantial complains constitutional that the District’s unwritten claim.” policy, Id. at 100 S.Ct. at 2576. The any appeal the lack of formal procedures, long explained and the Board’s Court delay in that a fee award “[s]ueh finally dealing with her claims violated her Cоngressional goal ‘furthers the of encour- rights. constitutional We conclude aging suits to vindicate constitutional tiff has stated a constitutional claim for undermining without the longstand- relief under section 1983. ing judicial policy unnecessary avoiding important decision of constitutional is- In today, our decision we invalidate the ” sues.’ Id. at S.Ct. at (quot- because we find that it Maher, ing Gagne (2d 594 F.2d result, conflicts with state law. As a we do Cir.1979)). not reaсh constitutional claims. However, it automatically does not follow Again Smith, Court considered the plaintiff

that her attorney cannot recover attorney award of fees under section 1988 fees under section 1988. prevailed where the had pen- on a Supreme Although

The United dent States Court the Court consistently fees, has gen- held that a denied it attorney did so on the nar- states, permit 5. The author To to award courts fees without issues, reaching Congress constitutional bor- authorizing parties fee awards to who developed rowed the test it had for the exer- claims, prevail Congress on non-fee wanted test, pendent jurisdiction. cise of Under this prevailing plaintiffs courts to award may parties prevail courts award fees to who being without to reach forced constitutional on nonconstitutional claims but unneсessary issues. Such avoidance con- when the fee and non-fee claims arise out aof question principle stitutional ais traditional operative common nucleus of fact. long guided that has federal courts in consti- Steinglass, Litigation S. Section 1983 in State litigation. tutional 23.2(a) (1988). Courts passed favorably party’s court had Congress intended on ground that row claim, Congressional policy involved, section 1983 the Education of statute of civil Act, encouraging private ave of enforcement Handicapped “to be exclusive judicial would assert contradict which nue avoiding on fi of decision constitutional equal protection publicly claim a at Id. special claims.” at 517. nanced education.” 468 The conclud 1009, 104S.Ct. at 3467. Court court, per As was the we are Lofft provide did that since the E.H.A. ed that a sub suaded аsserted fees, Congress did not intend which, stantial in the area provided under section 1988 narrow of our decision litigation special education. Id. over grounds, we not address. further did We con at 3469. The Court’s S.Ct. statutory and find her state constitutional expansive was based on clusion arose out of a common nucleus the Act. at 1010- pre-emptive nature of Id. Finally, we there fact. conclude Court, The how 104 S.Ct. at 3467-71.6 speciаl no circumstance would which ever, prevailing party acknowledged that a a denial of fees this case. We mandate attorney fees ordinarily be awarded should therefore remand for determination of “Congress did section 1988 and under attorney fee. a reasonable authority extin not intend have that the case was set guished the fact CONCLUSION on a nonconstitutional tled or resolved judgment reverse remand We Id. at at 3465. ground.” case to trial court for further recently Oregon Court ceedings opinion. with this consistent issue us in precise before considered *6 Educ., Higher 89 v. Bd. State GREENWOOD, J., concurs. Lofft 614, (1988). In Or.App. Lofft, P.2d 515 750 BENCH, Judge (concurring and plaintiff brought a state law tort and the dissenting): claiming civil he was federal the that fully I concur conclusion employ- wrongfully from his terminated state is invalid under the ment. The trial court awarded back however, dissеnt, I from the decision law. theory, employment contract under pursu- attorney her fees to award apparently attorney denied (1981). I to 42 1988 believe ant U.S.C.A. § on state law the decision was based the reported original opinion, at re- Oregon The correctly dis- Adv.Rep. (Ct.App.1989), attorney on The versed the fees issue. this I therefore voted posed of ease. determined that the court opportunity deny rehearing, and take this claim, his state id. prevailing party on law explain why. 517, had al- that attorney by majority, pointed As out leged a substantial fourteenth amendment only claim, id., in cases like this that state and fees are recoverable “pendent winning state claim is based on when federal constitutional were facts, id., claim.” constitutional to a substantial the same core of 122, 132, 100 448 U.S. special Gagne, Maher v. there were no circumstances (1980). 2570, 2576, 65 L.Ed.2d 653 awarding attorney fees S.Ct. that made the I ordinarily my colleagues, do not believe light Unlike unjust pendent to a sub- plaintiffs claim is awarding prevailing under fees to 1983, the federal constitu- states: claim under at 518. The court stantial section id. only when a tion. “if fee were available awards attorney retroac- Congress ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍made the amendment in Smith reacted to decision "swiftly, decisively, dаy and with its uncharacteristic the Court announced tive to before judicial clarity misinterpretation it to correct what viewed as Handicapped Children’s See decision Smith. Fontenot v. 1986, of its intent.” Pub.L. No. Protection Act of Educ., Elementary Secondary & Bd. Louisiana (codified at 20 sections in scattered Stat. 1222, (5th Cir.1986). Congress F.2d (1982 1400) Supp.1988). & U.S.C.A. awarding include amended E.H.A. to lawsuits, separate and therefore alleged

Plaintiff in this cаse that raised no fees be awarded for services on imposition of student fees on those not assistance, the unsuccessful claim.” receiving public but still unable right to pay, infringed on her children’s Texas State Teachers Ass’n v. Garland — However, is not a a free education. this Dist., -, Indep. School by right, privilege, immunity secured (1989)(quoting 103 L.Ed.2d 866 Doe, Plyler federal constitution. v. See Eckerhart, Hensley v. 461 U.S. 202, 220-21, 2382, 2396- 1933, 1940, 457 U.S. 102 S.Ct. 103 S.Ct. 76 L.Ed.2d 40 (1982)(“Public education Robinson, 72 L.Ed.2d 786 also v. 468 U.S. See Smith ‘right’ granted 3457, 3470, is not a to individuals 104 S.Ct. 82 L.Ed.2d 746 Constitution.”) (1984). (citing Indep. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍San Antonio Rodrigues, v. 411 U.S.

School Dist. failed a claim to state (1973)), 93 S.Ct. 36 L.Ed.2d support attorney will an award of fees un- denied, reh’g 458 U.S. 103 S.Ct. der section 1988. the absence of anoth- 73 L.Ed.2d 1401 reference applicable agreement, plain- er statute or plaintiff’s complaint con- federal tiff is not entitled to her fees. stitution is in her second cause of action paragraph prayer

and in of her for relief.

There, plaintiff аlleged that her due violated defendants’

cess were

delay conducting appeal hearing for fee waivers. I doubt that PARENTS AGAINST DRUNK DRIV pleading this constitutes a claim un- viable ERS, Assignee Debry, of Robert J. certainly der section 1983.1 It is not a Appellant, Plaintiff and the federal “substantial” under con- v. stitution, especially in of the fact that view GRAYSTONE PINES HOMEOWNERS’ appeal hearing had her four ASSOCIATION, Counterclaimant months after the District’s decision award- Respondеnt, ing her a waiver.2 *7 Furthermore, receive fees under WEBSTER, Nielson, Roy plaintiff’s

section John Florance state claim must be Lewon, Croft, Carlos and Louise Mallo “pendent” to a substantial federal nee, Managers as the Board of prevailed in this case because the Graystone Pines Homeowners’ Associa is more restrictive than the tion, on behalf owners of all question Board’s rules. That is a of law Graystonе units Pines Condomin suggests ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍nothing underlying about iums, Intervenors, Counter-plaintiffs procedural recently facts. As stated Respondents. Supreme the United States Court: No. 880430-CA. Where the claims are based on theories, legal different facts and and the of Utah. prevailed some of March claims, congressional in- those ... “[t]he prevailing tent to limit awards to [fee]

parties requires that these unrelated they

claims be treated as if had been Jordan, City statutory provision. Crawfоrd, 1. Accord Call v. West 788 P.2d See Cobabe v. (Utah Ct.App.1990). 1052-1053 To treat Ct.App.1989). encourage such a claim as viable will the rou- pro- generic, procedural tine insertion of a opinion’s possible 2. The main reliance on other every claim in suit where state thereby cess alleged. process arguments misplaced since Parties will able to circum- allegations tiff did not include such in her com- principle vеnt the fees are not plaint. explicit recoverable absent an contractual or notes equal protec- denied her due Maher, plaintiff alleged that Con- provided of the laws as tion under the Dependent necticut’s Aid to Families with fourteenth amendment to the federal con- regulations Children violated the Social Se- I, stitution and article section 7 of the Utah curity equal protection Act and the and due specifically complained Constitution. She