Menzies v. Galetka

480 by

erage required companies of rental car vehicles. therefore affirm the We result pri- Responsibility appeals. the Financial Act is to be reached the court of mary coverage, require- removes ment when there is other "valid and collect- {[ DURHAM, 31 Chief Justice Associate coverage." imposes insurance It then ible WILKINS, PARRISH, Chief Justice Justice primary obligation defense on rental car concur in Justice NEHRING Justice regardless companies of whether there is opinion. DURRANT's or other valid collectible insurance. not, interpretation as Enter Our does 31A-22-314(1)

prise argues, read into section requirement Enterprise

a substantive "secondary

provide coverage" "primary when

coverage" required. is not Because we inter pret only speak section 31A-22-314 to UT ordering coverages, of insurance the broader Leroy Ralph MENZIES, Plaintiff coverage required car com rental Appellant, panies required all is that motor vehicle Responsibility Financial owners Act. defining required coverage The statutes GALETKA, Hank Utah State Prison ordering coverages.45 contain rules To Warden, Defendant the extent section 81A-22-314 does not Appellee. rules, change ordering apply those rules companies. to rental car No. 20040289. Supreme Court of Utah.

CONCLUSION Dec. It plain is clear from the lan guage of Utah Code section 31A-22-314 and Legislature

related statutes that the did not availability

intend the of other valid or col coverage

lectible insurance to excuse rental companies maintaining

car insurance

coverage on their vehicles accordance with requirements of Utah's Financial Re

sponsibility of Motor Vehicle Owners and Rather,

Operators plain Act. language coverage

section 31A-22-814 directs

required companies of rental car under the Responsibility "primary

Financial Act is to be ge"46-coverage that "attaches covera

immediately happening on the of a loss" and contingent

"is not on the of an exhaustion underlying policy" 47-unless there is "other coverage."

valid collectible insurance there is other

Where valid or collectible in

surance, companies subject rental car are ordering

the same rules under the Financial

Responsibility Act other owners of motor 31A-22-303(2). (7th ed.1999). § Dictionary

45. Seeid. 47. Black's Law (2005). § § 46. Utah Code Ann. 31A-22-314 48. Utah Code Ann. 31A-22-314. Hunt, City, plain-

Elizabeth Salt Lake for tiff.

489 BACKGROUND Gen., Shurtleff, Atty. Thomas L. Mark Gen., Attys. Salt Brunker, Riley, Asst. Erin in reciting the facts this T3 Before City, defendant. for Lake case, necessary to discuss our review of it is findings. factual We have court's

the district in findings contained the factual reviewed DURHAM, Justice: Chief 60(b) error, ruling for clear court's district Menzies, a case, Leroy Ralph In this reviewing issues of fact. practice when is our inmate, ¶ 1 appeals from the 1, Stewart, 68, row death n. 2005 UT Chen v. post-con- petition for of his dismissal of the record court's 416. our review P.3d post- a claim for Menzies filed the district court relief. in case indicates viction this 1995, findings having previ- factual clearly after erred numerous relief conviction ap- We there direct were crucial to its decision. grounds for ously his exhausted the facts in a manner to recite 3, 1998, attorney K. fore decline Edward peal. On March ruling court's with the district appointed the district consistent with our recite them accordance instead his until From that date represent Menzies. of the record. review 2003, 9, Brass will- September on withdrawal every aspect of nearly fully disregarded appeal arise pertinent to this 'I 4 The facts result, im- a the court case. As Menzies' litiga- lengthy post-conviction from Menzies' sanctions, summary granted discovery posed tion, he re- representation particularly State, ultimate- judgment attorney in favor Edward K. Brass be- ceived from post-con- September for 2008. petition February 1998 and ly Menzies' tween dismissed some back- begin synopsis our We relief. viction initial criminal information on the ground of Menzies Following the dismissal T2 8, 1988, Menzies March proceedings. On counsel was and new Brass withdrew murder and guilty degree of first was found moved to set aside Menzies then appointed. his kidnapping. waived aggravated petition of his court's dismissal the district jury penalty phase of his right for the to rule pursuant post-conviction relief subsequently sentenced to and was trial 60(b) Procedure. Rules of Civil of the Utah Following his by the district court. death 60(b) primarily based motion was Menzies' a motion for new sentencing, Menzies filed grossly Brass' actions were claims that on appealed trial, was denied. Menzies which assis to ineffective negligent and amounted court, court's the district which affirmed court denied counsel. The district tance of and directed Menzies of the motion denial (the 60(b) ruling). Menzies Menzies' appeal on the merits. his direct proceed with (Utah $45 reverse the district requests Menzies, 220, that we now P.2d v. State 1992). so, arguing challenges that numer- did ruling. Menzies also court's . the district court en discovery order that at trial. prejudicial errors had occurred ous claims, ultimately denied all of evidentiary hearing We pursuant to an tered 60(b) motion, arguing jury's guilty verdict as well as affirming the held on of the death compelled imposition Men improperly the district court's Menzies, P.2d v. product. penalty. State privileged work We to disclose zies (Utah denied, 1994), 518 U.S. cert. denying 406-07 court erred hold that the district (1995). 180 LEd.2d 115 S.Ct. 60(b)(6) of the Utah under rule Menzies relief that the discov Procedure and Rules of Civil POST-CONVICTION I. INITIAL THE court did by the district ery order entered PROCEEDINGS for the discov comply with the standard filed April in Salt attorney product set forth T5 On ery work relief; amend Uno, post-conviction petition 932 P.2d Legal Ass'n Lake Defender May 1995.1 his 1997). petition on (Utah ed Sullivan, Mat- joined by Alan L. co-counsel coun- was Menzies' C. 1. Corporon Attorney Mary Shaughnessy proceedings M. when Durham, and Todd sel of record thew M. attorneys Together, four May Corporon April 1995. Ms. were initiated petition, seventy- amended Menzies asserted The court also prevent found that in order to relief, separate three including right claims for corpus of habeas being from provided unlawfully claims his trial had suspended, necessary counsel it was 13, provide ineffective assistance. On investigate November Menzies with funds to his 1995, claims, moved to specifically State dismiss the first his regarding claims claims, seventy-one arguing that uninvestigated the Utah alibi defense. The court de- Supreme rejected previously ruling Court had request ferred on Menzies' for attor- them. ney State's motion did not evidentiary fees until an hearing could be address Menzies' ineffective held. The interlocutory appeal State filed an claims. from this order. 18, 1995, 17, 1996,

16 On May December the State T8 On the State served its permission moved the district court for interrogatories first set of on Menzies. On discovery by 7, conduct serving interrogatories June the State also served the LDA him, deposing original Menzies and attorneys his represented who had Menzies dur- counsel, trial and other ing witnesses. Menzies subpoenas his criminal trial with duces opposed motion, asserting dis- tecum depositions to have their taken and covery should be breaching requests produce tailored to avoid all relating to documents attorney-client and constitutional privileges. representation their of Menzies. On- June 7, 1996, February 19, 1996, On Menzies moved the. LDA intervened and filed motion district court provide direct State to for redetermination clarification attorney expert fees as well as funds for both district court's granting discovery. order investigation witnesses and an argued of his claims LDA that Menzies had not waived innocence, including potential attorney-client alibi that privilege and that even if allegedly investigated by had, trial coun- the waiver subject was limited underlying sel criminal case. matter of right Menzies' claims and the Menzies indicated that the motion against would be self incrimination. LDA also moved supported by the private affidavit of a inves- protective court for a pre- order tigator to be filed with the court. venting discovery privileged attorney- client information from current or former 3, 1996, April T7 On the district court attorneys. LDA Finally, requested LDA deferring entered an order ruling on the stay the district court depositions State's motion to until dismiss after an evi- discovery procedures pending the resolu- dentiary hearing could be held on the ineffec- tion of its motions. tive assistance of counsel claims. The court also set a timetable for 8, 1996, the State and July Men- 19 On the State filed a zies responsive to file memoranda to their requesting the respective motions. The court compel held another respond Menzies to interroga- hearing regarding the State's motion for dis- tories that the State had May served him on covery attorney and Menzies' motion for July fees 17. On LDA filed a motion investigatory May funds on requesting On quash the court either June the district court subpoenas ordered that duces tecum the State had served the State be allowed to conduct limited dis- attorneys on its protective or issue a order covery $2,000 and that Menzies be awarded limiting production of privileged LDA pay for an investigation. alibi relating documents to Menzies' criminal trial. order, the district court July found that Menzies On Menzies also moved for a partially had attorney-client privi- waived his protective order, asking that the LDA attor- lege counsel, as to the records of his defense neys not deposed and that he be relieved Legal the Salt Lake Defender Association having respond to the State's inter- (LDA), by claiming rogatories. ineffective assistance of argued there was trial petition. inadequate time to review the documents represented pro post-convic- bono in all 13, 1998. February , proceedings appointed

tion until Brass was and to order protective for a motions filed privilege to determine by the State requested argued that the discovery. Menzies stay all the State noted also Menzies issues. payment of made its impermissibly had State $2,000 investigative in paid the yet not had conditional $2,000 investigative funds in the court by the district ordered funds if the district repayment right to seek inter- its on fully the State's answer not he could as- Menzies was overturned. investigation order court's the alibi until rogatories impossible it made this condition serted addition, to moved Menzies completed. ap- the State's he was pending funds because spend the stay proceedings the him to for interlocutory repay court's to means the district not have the peal from indigent and did sought to the later funds event the State investigative funds the regarding order Menzies, he According to Court. Supreme Utah them. to recover discovery-through with proceed could hearing a conducted court 10 The district ' being de- interrogatories answering 16, July on July 8 motion LDA's regarding were investigative funds posed-unless stayed all hearing, the court At the 1996. com- investigation was and an available made interlocutory ap- the State's pending motions pleted. 1996, 19, July until gave the State peal and also The court motions. respond 9, 1996, to Menzies' filed the State September T 13 On attorneys, LDA depositions stayed the motions to Menzies' responding memoranda 18, 1996, July scheduled proposed had been objection which to the State's and LDA's rescheduled they were stated court held a discovery order. The motions on hearing on the various a pending It ruled that issues. hearing regarding both interim, During the 6, 1996. August written sufficient as order was proposed non-privi- produce LDA ordered objections court to the discoverable and that request- had that the State leged information be han- could possession in LDA's materials to the log as privilege prepare and to court. ed through in-camera reviews dled the State ordered Finally, the court rest. the State's court executed Accordingly, funds $2,000 investigative regard to pay Menzies discovery order. With proposed did The State prior order. required its motions, as court denied both Menzies' $2,000 check for in investi- with a provide Menzies them but ordered indeed 1996, right 19, reserving the $2,000 July with no paid to Menzies funds be gative requir- order court's challenge the district granted the Finally, the court restrictions. from repayment to seek ing payment and and to depose Menzies motion to State's was vacated. the order interrogatories if be- Menzies its him to answer compel 1996, 15, 9, On October 1996. fore October hearing, the State July 16 11 Prior ' log the district privilege filed its LDA regarding order proposed prepared had 22, 1996, moved the State October court. On documents; the State LDA discovery of court sanctions, the district asking that light of the order proposed its amended of coun- ineffective strike Menzies' it to Menzies hearing provided July to an- had failed Menzies because sel claims 29, 1996, July 22, July 1996. On and LDA by October interrogatories swer State's for re- the time to extend Menzies moved by the court. directed order and proposed to the State's sponding hearing because August 6 to strike peti- Menzies 14 On November transcript copy received had not appeal from him to to allow this court tioned could hearing and thus July 16 regarding 12 order court's June the district or- proposed object the State's properly and also investigative funds provision granted district court der. stay the a motion filed August counts. On on both our pending in the district proceedings memorandum, joined by Men- filed a LDA stay with- the motion denied We decision. proposed order. zies, objecting to the State's After November prejudice on out to dismiss a motion filed the State 23, 1996, {12 moved the State August On with- opposition, memorandum to take for leave petitioned then petition. September drew On deposition. relief, extraordinary ery this court for a writ of in accordance with the standards set again requesting that this court review the opinion. forth in our Id. at 591. district court's June order to determine 10, 1997, January T 17 On Menzies filed his adequacy investigative of the funds. Ac- answers to the interroga- State's first set of Menzies, cording investiga- the amount of tories. The subsequently State withdrew its tive funds awarded the district court was 8, 1997, February for sanctions. On adequate not sufficient to conduct an investi- Menzies filed with the district court a motion gation; private investigator sug- Menzies' to increase the funds investiga- available for gested in his affidavit that a reasonable esti- $8,250, tion fees to at least based on the $8,250. mate would be at least He stated private investigator's affidavit The State that twenty-six he had identified areas of opposed the motion. The district court investigation, "each extensive and critical ato 24, 1997, heard February the issue on and it guilt," determination of that had not been request funds, denied Menzies' for additional adequately investigated during guilt ordered investiga- Menzies to use an in-state phase of Menzies' trial. tor, again ruling reserved on Menzies' {15 January 2, On we consolidated request attorney for fees until after an evi- petition this with other several cases involv- dentiary hearing. ing caption similar issues under the 23, 1997, January v. Galetka. On this petition extraordinary denied Menzies' for II. POST-CONVICTION LEGISLATION relief, concluding preliminary that the condi- AND MKR.BRASS' APPOINTMENT necessary grant tions for the of a writ under Meanwhile, proceedings in before this

rule 65B of the Utah Rules of Civil Proce- involving court's order dure did exist. we also stated awarding fees, investigative Menzies' challenged that if adequacy State had filed a motion suggesting that investigative funds the district court may issue given be moot request- passage and the court denied him the recent the relief of House Bill enacting ed, Part 2 petition he could then this court for inter- relief, locutory Act, in which case Post-Convietion Capital we would ad- Remedies Sen Cases, adequacy dress the governs issue connection with tence which appointment disposition of the other consolidated payment in post-conviction counsel cases. penalty proceedings. death Utah Code Ann. (2002). §§ granted 78-35a-201 to -202 We 31, 1997, January 1 16 On this court issued 28, 1997, April the State's motion on noting its decision in the related case of Salt Lake parties agreed voluntarily had Uno, Legal Ass'n v. 932 P.2d 589 Defender stay proceedings in the district court until (Utah 1997), petitioned wherein LDA had 1, 1997, July after the date on which the extraordinary this court for relief from the legislation new and associated rules went September court's 16 order. Id. at into legislation effect.2 After the new be 589. In that proce we clarified the effective, parties came sought both to have dures courts applying should follow when appoint district court product quali new counsel work privileged doctrine to docu fied under rule 8 of the sought discovery. ments Utah Rules of Crim Id. at 590-91. Procedure, granted inal petition, required by newly We LDA's vacated the dis September trict court's regarding 16 order 78-35a-202(2)(a). enacted Utah Code section production documents, of LDA and or 1, 1997, On October the State notified Men dered supervise the district court to discov- zies' counsel the Utah Division of Fi pertinent legislation 2. gation expenses is contained in Utah paid are to be from state funds (2002). Code section 78-35a-202 Under pursuant the Division of Finance to adminis- section, appointed represent adopted an indi- trative rules under the Utah Administra- gent petitioner "qualified represent 78-35a-202(2)(c); must be Rulemaking § tive Act. Id. see penalty required by (2001) defendants in death cases as Utah (setting also Admin. Code r. 25-14 Rule 8 of the Utah Rules of Criminal Procedure." payment attorney forth current scheme for fees addition, 78-35a-202(2)(a). § litigation expenses this section death specifies compensation cases). penalty for counsel and liti- Menzies, responses no had received but might al sent rules implemented had nance were in- 12. No affidavits as of November from the payment receive low report. November with the cluded ex litigation attorney fees state Octo dated to the State In a letter penses. Brown, {20 of the attor R. one Kenneth counsel stated ber report in the November neys identified applying comfortable not feel did she counsel, filed an by Menzies' and contacted adopted provisions under the compensation on December the district court affidavit because of Finance Division by the Utah affidavit, Brown stated In his ap had not been team pro bono for a unwilling represent Menzies he was not meet the and did by the court pointed time, the Utah State At the of reasons. host by see required requirements placed a Regulations of Finance Department 78-35a-202(2)(a). fur counsel Menzies' tion attorneys compensation for $25,000 cap on case that the her belief represented ther post-conviction plaintiffs representing meeting attorney until an proceed could investiga included cases which penalty death willing to who was requirements, rule 8 the According to expert fees. witness tion Menzies, located. couldbe represent claims of Brown, uninvestigated had Menzies would Brown estimated innocence that 27, 1997, re- actual the State October T19 On investigate. In addi $25,000 properly to cost appoint new court that the district quested mitigation investi tion, that no Brown stated represent under rule 8 qualified counsel underlying in the had been conducted gation mo- filed a counsel also Menzies' Menzies. necessary in order to and one would be collec- trial team pro bono arguing that tion post-conviction litigate Menzies' requirements properly met the rule 8 tively did not investigation "would cost Such claims. appoint new counsel. court to asking the $25,000." these cir Under in excess of hearing on the well a court held district cumstances, the funds believed 3, 1997, Brown on November State's undertaking attorney Men any ap- available must be counsel "[nlew determined "grossly inade would be representation coun- zies' Menzies' The court ordered pointed." investigation necessary the attorneys quate" because a list of and submit prepare sel the total nearly three times cost alone would would be 8 who under the new rule qualified Therefore, by the state. authorized along with amount appointment, accept the willing to attorney representing any Brown felt attorneys' back- regarding affidavits "in an immediate placed would be Pursuant to this qualifications. grounds and be she "would he or conflict" because report a ethical order, counsel submitted Menzies' compen receiving choose between foreed to on November the district in conducting no reasonable ... and she be- sation attorneys whom identifying thirteen alternatively, whatsoever, vestigation represent Menzies. qualified to lieved were into a still-inade throwing funds] all of [the thirteen, to take five were unable Of these any without going investigation, quate conflicts. undisclosed the case because Brown de Accordingly, compensation."3 remain- a to the sent letter Menzies' counsel represent Menzies. clined to repre- attorneys inviting them eight ing predecessors, we note the proceedings than their system tiered regulations contain a 3. The current may fees, statutory cap compen- disability attorney potential which payment of for stage procedural re- according is correct impose. to the Brown's affidavit If Mr. sates proceedings See reached. a post-conviction to secure garding funds needed sys- Under this Code r. 25-14-4. may Admin. Utah be the proceeding, it post-conviction proper tem, compensation an maximum amount crip- imposes statutory a this scheme case that petition- representing may attorney receive stage this at Menzies. pling burden penalty is case post-conviction death er in incomplete, and litigation, the record rules, $37,500. Division of Id. Under these remand, On the court. is not before the issue litigation "pay ex- also reasonable Finance will what determine counsel must current Menzies' $20,000 any penses to exceed a total challenge present investigation is needed investigators, expert court-approved case for one to rule statutory cap district court witnesses, Code Utah Admin. and consultants." matter, adversary subject test- on as factual regulations provide While r. 25-14-5. ing. penalty funding death more [21 16, 1997, On December proved the State filed appointment. appear It does not requesting second motion that the actually district court ever conduct- appoint qualified inquiry rule 8 ed an counsel for into quali- whether Brass was motion, represent fied Menzies. its State Menzies under indicated rule 8. On 3, 1998, only March attorney the court contacted entered an order Menzies' responded counsel who had appointing represent Brown and Brass to all proceedings before the court. represent pro had declined to Menzies. The bono subsequently team argued rep- State withdrew their proceed that "[iJn order to resentation but remained this action available to qualified a Rule 8 consult attorney must with Brass. In the ruling, appointed represent the Court to court stated that "Mr. Brass believed he petitioner's interests." The State also stated appointed for the purpose sole represent- delay that "[flurther in making appoint- ing Petitioner at evidentiary hearing." ment of counsel is not in the best interest of While Brass' affidavit does contain a state- petitioner alleged, who has among other " effect, ment to nothing else in the record claims, his 'actual innocence." On Decem- representation indicates that his was limited ber supple- counsel filed a in a manner. The letter Brass sent to such report update mental the district court Menzies' counsel simply stated that Brass regarding her search for qualified rule 8 willing to take the case. At hearing report, counsel. In the Menzies' counsel in- at which appointed, Brass was the district dicated that she replies had received her any court did not set limit representa- on his soliciting letter qualified a rule attorney Also, tion. the district appoint- court's order Menzies from eight recipients. four of the Brass, ing which signed, actually he states attorneys Each of these rep- had declined to that "Edward K. Brass is appointed repre- Menzies, resent most for the same reasons as sent Mr. Menzies in all proceedings before Brown. Menzies' counsel further stated that added). (emphasis court" telling, Most attorneys she had contacted constituted at an evidentiary hearing 16, January held on all potentially of the qualifying attorneys of 2004, Brass himself represen- stated that his whom she was aware. tation of Menzies any was not way. limited 29, 1998, 1 22 January On the district court Nor would a limitation on representa- Brass' held a hearing second regarding appoint- tion appropriate have been given that qualified ment of rule 8 counsel. The court district court and counsel for parties both ordered Menzies' counsel to trying continue just had conducted a four-month search for attorneys contact represent Menzies qualified rule 8 counsel and Brass was the gave and February her until 5 to do so. On only attorney willing to Any take the case. February pursuant request to a from limitation would also have run counter to the judge's clerk, the district court post-conviction regulatory framework. Un- counsel submitted a letter to the district der the Code, Utah Administrative indicating court eight attorneys who had appointed counsel, by [alll accepting the been contacted responses. and their appointment represent indigent an letter indicated that four attorneys had client sentenced to death present- and responded in negative and the other four ing Request Payment to the Division responded. had still not Finance, agree of provide all reasonable 3, February 1998, 123 On attorney necessary and post-conviction Ed- legal ser- client, vices for the including ward K. timely filing Brass sent a letter to Menzies' coun- an stating provisions 78, sel action under of he Title would be interested Chapter representing Post-Conviction they if Remedies Menzies were still seek- Act and ing representing the legal counsel. client in all February On yet at proceedings conducted hearing including, another regarding appointment thereafter requested by client, if appeal qualified counsel, rule 8 Menzies' counsel Brassg' Supreme Utah Court. told the court about letter. 'The court Brass, contacted appeared agreed and to Utah Admin. Code r. (emphasis 25-14-38 add- represent Menzies, ed). and the ap- district court The record indicates that Brass re- case, nor did he send progress of Division from the received quested $5,000 filed any of the documents copies of fee appointment an initial Finance State, requested though Menzies even 25-14-4(1) Ad- the Utah pursuant In his commu- multiple times. so that he do Code. ministrative consistently Brass, Menzies nications with REPRESENTATION BRASS III frequently his innocence maintained to make sure and his staff asked Brass 1] as Menzies' Brass served particular, In progressing. the case was the district when February conduct alibi Brass to Menzies wanted Septem- him, until he withdrew appointed express- repeatedly investigations, mitigation little to say Brass did 2008. To ber investigation of delaying the ing concern that during this five-and-a represent to his case. harmful matters would be an understatement. half-year period would court made ruling, In its case in this fact, representation In told Brass that Menzies of the record much of the fact review deplorable. Our full confidence he had letters that several provide only failed to Brass not indicates was needed. time him and to take whatever meaningful representation, court, Menzies "was According to the district every nearly disregarded willfully in fact but default, ques- into that called of cireumstances aware effect, of this case. aspect Brasg' representation of Mr. quality tion proceed- entire ed Menzies' case," "despite progress of his of Menzies' resulting in the dismissal ing, representation Mr. Brass' concerns with his case. case, [Men- in his progress and the lack with, Brass communicated begin 125 To delay in the intentionally acquiesced zies] throughout only sparingly with Menzies his attor- Brass as by keeping Mr. his case the issues discussed He representation. However, reading of the careful ney." only once- with Menzies length at the case was Menzies that Brass-when record shows during an initial meet to two hours for one several him-and with to communicate able rarely spoke with his thereafter ing-and were members who attorneys and staff other deliberately avoid client, appearing Brass, repeatedly Menzies with affiliated told consistently at Menzies communication. and representation in Brass' to have faith by telephone to Brass contact tempted to Moreover, job. good do a that Brass would Brass' aspects of the case. various discuss that Menzies himself has indicated Brass calls, fre Menzies' rarely answered office delay. without case him to resolve the asked calls from accept collect refused quently reading of the record Thus, a more accurate they hung up when and even prison,4 attorney as his kept Brass that Menzies prac This calling. it was realized the status fully aware of not he was because in pursuant conducted tice was continually reassured he was his and accepted the staff Even when structions. things. taking care of that Brass was messages, calls and took phone Menzies' Telephone them. returned seldom Brass any- hired never conducted T27 Brass attempted to that Menzies indicate records notwith- investigation, one to conduct of times literally hundreds call Brass' office the fact requests and standing Menzies' Brass or member actually spoke with but investiga- that extensive indicates the record handful of occasions. only on a his staff in order subjects was needed tion on these After claims. litigate Menzies' properly {26 tried to communicate also a letter received appointed, Brass cards. In through letters Brass with informing him letters, pleaded repeatedly prior counsel Menzies' investigative funds $2,000 in had the she update him on to contact with Brass pos- in her by the court previously awarded keep Men- Brass did of his case. status sought or However, never session. posture procedural about informed zies to call system requires Menzies phone prison by telephone is limited access 4. Menzies' attorneys telephone access collect. been denied prison, and he has Moreover, litigation. during this times at various her;5 discovery. obtained these funds from granted record The court this motion on also indicates that Brass did not consult October 29. pro bono team about the case. Nor 24, 1998, 1 30 pro- On November the State challenge did Brass adequacy ever of the vided notice that it depose intended to Men- request any

funds or additional funds from However, zies on December 10. on Decem- fact, only Division of Finance. 9, deposition. ber Brass cancelled the On funding requested Brass ever or received in 22, December the district court held a hear- representation connection with his of Men ing on the State's motion to dismiss. The $5,000 appointment zies was his initial fee. granted unopposed the State's representation 128 Brass' of Menzies be- seventy-one ordered that the first claims equally fore the district court post-conviction deficient. for relief asserted in Menzies' Shortly appointed, after Brass was petition the dis- amended be dismissed. On that day, same the State filed a compel motion to trict scheduling court held a conference to establish cutoff deposition; dates for Menzies to file a the court ordered Men- respond by zies to January 1999. Brass petition second amended relief, discovery, response. never filed a parties and for the dispositive file motions. A scheduling order 2, 1999, February Menzies, 131 On giving was then entered April Menzies until State, vacate, and LDA moved the court to 16, 1998, to petition. file his second amended amend, clarify discovery order of petition by Brass failed to file a September 16, 1996, to conform to this 15, 1998, July that date. On court's Legal decision Salt Lake Defender prior scheduling modified the order Uno, (Utah 1997). Ass'n v. 932 P.2d 589 The gave August Menzies until February court did so on issuing an order petition. July file his On the court addressing all previous discovery scheduling held another conference wherein based parties motions filed it modified several other cutoff dates and produce court ordered LDA to all documents produce also ordered LDA to all relevant protected by product the work doctrine documents November 1998. Brass prepare and to an index all remaining again failed to file Menzies' second amended documents. LDA filed privilege log its petition by the modified deadline. Au- On April the court on 31, 1998, gust finally Brass two-page filed a 11, 1 32 On June the district court entered petition, second amended which did little granting an order the State's motion to com- more than arguments re-state the that had pel deposition, noting Menzies' the mo- been made in the petition first amended filed unopposed. July 19, tion was On the district pro 2,May Menzies' bono counsel on 1995. discovery date, court extended the cutoff or- 25, September 1998, 1 29 On the State filed dering parties complete discovery by both its answer to and a motion to dismiss 31, 2, September 1999, December 1999. On Menzies' petition. second amended inAs its the State permission filed a motion for to original dismiss, motion to argued the State schedule deposition. Menzies' The court that all of except Menzies' claims those relat- granted motion, following several ing to ineffective assistance of trial counsel cancellations due to parties' conflicts in the they should be dismissed schedules, because had either deposition Menzies' was scheduled been raised on appeal direct 5, could have 4, November 1999. On November appeal. been raised on direct Brass again did not Brass called counsel for the State and file a opposing brief the State's motion. On told them that it would inappropriate 8, 1998, October the State moved the court deposed to Menzies to be before an investi- alibi gation discovery extend the couldbe apparently conducted. Brass deadline from October 15, 15 to citing December a need to review an made notwithstanding this assertion the fact index of all LDA relating documents to the that he had made no effort to conduct such underlying eriminal trial in complete order to investigation. deposition, how- 5. When the State learned that Bras had never granted refunded; the district court the State's funds, obtained these money it moved to have the motion on 31, March 2004. Feb- discovery. Consequently, on requested did not Brass scheduled. ever, proceeded 15, 2001, court to moved the ruary State at- George, an sent Julie instead but attend responses. Brass discovery compel nor qualified rule 8 neither torney who motion response to the State's no again filed way. any When the case familiar with 2001, 28, the district compel. On March to did not prison, Menzies at the George arrived compel motion to the State's granted aware not even was and was who know she immediately provide to ordered Menzies Nonethe- scheduled. depositionwas that the order, discovery. In its requested deposition, less, participated Menzies stated, since dis- period "The extensive refusing to questions answering certain with provided The de- George's advice. covery began [Menzies] answer others claims; investigate his ample opportunity when Men- finally terminated position was advice, his the in- asserted should have George's consequently, zies, acting on [Menzies] outstanding to refuse discov- Fifth Amendment to answer formation right ery readily available." communica- questions about answer him represented attorneys who tions with order, Brass did Despite the court's trial. in his criminal any of the re- with provide not the State not discovery. likewise did Brass 1999, quested filed the State T On December comply of his failures inform Menzies deposition. compel Menzies' second copies of Menzies discovery and did not send motion, requested that the State In its discovery requests. In- any of the State's extent of on the Menzies court instruct hearing before deed, evidentiary held at an Menzies privilege, order Amendment Fifth court, acknowledged that Brass by the the district protected questions all answer knowledge of personal have did not precluding impose sanctions privilege, that he discovery issues at a time in the introducing evidence them. anything about have done De- could answer. On refused to event Menzies know that Brass fact, not even Menzies did to strike moved the State cember discovery mo- various on the delays. had defaulted due to the discovery deadline Brass has since August tions until response to either to file Brass failed any of the respond he did subsequently stated that motions, and the court State's he had discovery requests because State's resched- them. The State both of granted had any investigation and therefore not done deposition for June uled Menzies' Brass has also provide. no information deposing Menzies completed informed could have acknowledged that he at the de- represented date. comply with he did not court that objection asserting a blanket again position, investigate of his failure discovery because deposition. time order requested more have and could filed a the State T On October things. neither of He did to do so. to serve Menzies seeking permission 19, 2001, moved for the State April T 36 On again, interrogatories. Once with additional the Utah to rule 37 of pursuant sanctions to the State's any response did not file Brass Procedure, that the requesting 4, 2000, Rules of Civil the court December motion. On introducing any from prohibit Menzies motion, to court and an order granted the State's beyond what claims support his to evidence on December was entered this effect motion, the In its already in the record. 18, 2000, the State was December 2000. On were warranted argued that sanctions production State a document with served Menzies to re- willfully refused had interrogatories. because Menzies set of request and a second pur- had discovery requests spond to respond, timely did not Menzies When again, proceedings. Once delayed the posely January 24 hand- via Brass on notified State in- did not respond. Brass an Brass failed move for it would letter delivered had moved the State Menzies that form discovery if it did not re- compelling order with a provide not and did February sanctions discovery by outstanding ceive com- Nor did he to the letter motion. respond not copy of did State's 2001. Brass regarding with the any municate with provide State and did discovery 11, 2002, the reasons for his failures. February On 139 On Brass filed a 27, 2001, granted appeal June the district court notice with the district court indi- motion, thereby cating that prohibiting appealing summary State's he was judgment introducing any Supreme the Utah further evidence to Court. How- ever, Brass did support docketing not file a his claims. Brass did not statement tell Men- within required by the time rule 9 of the zies the court explain about order or to Men- Procedure, Appellate Utah Rules of and this longer zies no investigate could his appeal. court dismissed the We then allowed claims. Menzies to avoid filing the dismissal 29, 2001, 37 On October the State moved transcript request; Brass indicated that no summary judgment. sought The State transcript required. was briefing We set a dismiss post-conviction peti- Menzies' entire schedule, but appellate Brass never filed an tion, arguing that because Menzies could not though granted brief even we twice him addi- any introduce support further evidence to tional time to do so. The State filed a motion claims, judgment the State was entitled to a appeal, dismiss the and Brass failed to as a existing matter of law on the record. respond. appeal We dismissed Menzies' on Brass made no effort to defeat the State's 21, 2002, November but indicated that if a motion; subsequently he has stated that he days brief were filed within ten we would did not even review attempt the record to appeal. reinstate Brass never filed a disputed find material facts. Brass has also brief, so we entered a notice of decision testified that position he was not in a to know dismissing appeal on December whether the facts were in dispute because he 2002. Brass did not inform Menzies of had investigated Again, Menzies' claims. developments. respond Brass failed to to the State's sum- faulty 1 40 appeal While the proceed- mary judgment motion. He likewise did not ing court, in this Brass filed with the district contact the court to ask for more time or to court a motion to set summary aside the why inform the court as to the facts were not judgment pursuant to rule of the Utah in dispute. Nor did Brass inform Menzies Rules of Civil April Procedure on about the State's motion or send Menzies a This accompanied by motion was not a mem- copy 7, 2001, of it. On December orandum but specific stated that "[the granted summary judgment State's grounds for this motion shall be set forth in a motion. An order this effect was entered subsequent memorandum." Brass never 11, 2002, January dismissing pe- supporting filed a memorandum. entirety tition in prejudice. its with 30, 2002, 1141 On nearly year December January 138 On spoke Brass dismissed, after the case had been Brass with telephone. Menzies on the Menzies as- finally sent letter to informing him serts that Brass told him try- the State was summary judgment. letter, about the In the ing get summary judgment, but not to stated, Attorney "The General's office worry about it because there a discovery managed summary to obtain a judgment stay place for the If State. Brass said your upon writ alleged based our failures this, lie; outright it was an the record re- comply discovery requests certain discovery fleets that stay no was ever im- part. my their This is responsibility and not posed, and summary judgment the State's yours. I doing necessary am what is to have already granted motion had been due to this set aside." Menzies received this letter comply Brass' discovery. failures with In 2, January 2008. reply Menzies wrote a event, Brass did not communicate with letter to Brass day. expressed that same He nearly year Menzies for following this con- that discovery he did not know what requests versation, though Brass even referring repeatedly was Menzies to and asked Brass to tried to him by telephone contact both and contact him possible as soon as explain through point letters. At no did in- why Brass summary the judgment had en- been form actually Menzies his case had been Following letter, tered. Brass dismissed. made no contact nearly with Menzies for two 60(b) to set the motion supporting 2008, randum 10, January the State On months. had summary judgment that Brass aside the district from the permission requested In the memoran- year earlier. over a unsupport- filed to Menzies' response file a late 60(b) motion, no dum the bulk Brass filed the Again, supporting set aside. motion to ed on the errors focused argument memoranda, filed a Menzies' and the State responsive summary judg- led to Brass on made decision matter for the to submit notice court ment. district 29, Before the 2008. January however, matter, Judge on the could 2003, 29, the filed August State T 44 On Brass case. assigned to the was Lewis 60(b) motion. On opposing the memorandum potential of a the State notified promptly 2008, coun- 9, withdrew as Brass September Brass' performed conflict; had Judge Lewis subsequently admitted sel. He 2008, 6, Judge Lewis

wedding. On March require- technically meet the may while he case, case and the herself recused 8, not understand ments of rule "do[es] Judge Brian. reassigned to subsequently was capi- governing complex procedural rules post-conviction" in and federal tal cases state [42 at Menzies finally visited with Brass adequately "cannot that he proceedings, and 5, meet- At the 2008. prison on March capital defendant represent a was post-convic- that he Menzies Brass informed ing, argued was The tion cases." although he did lawyer, a new to need going 22, September court on the district before to with- going that he was Menzies not tell 2003, under advise- matter was taken that he and any impression give Menzies draw or 2008, 6, for- Hunt was On November Brass ment. representing him. stop going to was Menzies,. represent On mally appointed again that he once told Menzies also 7, the November necessary to set aside doing what scheduled 15, 2003, hearing evidentiary for December not discuss did summary judgment. Brass relating to com- evidence order to with Men- history of the case procedural obtain Menzies dur- Brass and between to munications led zies, various defaults explain his The representation. ing period that he Menzies summary judgment, or tell dis- to conduct permission moved for file a State appeal and failed to defaulted had evidentiary for covery preparation to set the motion supporting memorandum motion. opposed the Menzies hearing, and aside. court en- December On {43 current June con- allowing parties to both an order tered Hunt, counsel, attended attorney Elizabeth eviden- discovery preparation duet attending seminar. While capital litigation hearing until continued the tiary hearing and seminar, asked to check Hunt was State, subsequently The January noth- to ensure that row cases death Utah's all docu- produce Menzies requested that cracks." On falling through the ing "was his relating to communications ments Thomas Hunt contacted July counsel-both prior in this Brunker, record counsel of the State's repre- had first team pro bono and Men- about Brunker informed Hunt case. appears to The State's him. sented theory contacted promptly Hunt zies' pertaining that the evidence have been researching prepar- began dili- to Brass' team was bono pro relevant August him. On ing represent had been if their gence, investigation the case dockets Hunt showed unfruitful, explain it would damaging or case. posture of the procedural explained the Brasg' investigate. failure to had that Menzies first time This was {45 re- during objected to the State's Brass had defaulted knowledge that the State the material arguing that quest, summary discovery process, product. work protected sought was to these imposed due been judgment had have been docu- appear to materials disputed in the defaults, had defaulted that Brass investigator for private an ments created day, Hunt filed that same appeal. On counsel based pro bono counsel, prior to Menzies' a motion as Menzies' appearance index filed an investigation. He counsel, preliminary memo- and a qualified rule 8 appoint requested of withheld documents that ignorance rather than the result of or care- in-camera, judge to review and moved for a lessness." While the court held that Men- protective permission order and for to file zies should not be held accountable protected In documents under seal. failures, Brass' it held that Menzies could be motions, Menzies asked the district court to held accountable for his own Ac- failures. discovery follow the standard for the of attor court, cording to the district Menzies "must ney product work set forth in Salt Lake still diligence exercise that level of that a Uno, Legal Ass'n 932 P.2d 589 reasonably Defender prudent person in his circum- (Utah 1997). hearing At a January held on stances would exercise." The court found 7, 2003, the district court denied Menzies' reasonably prudent person "a in [Men- motions, ordered produce Menzies to all the have, zies'] cireumstances would at a mini- previously documents that had been with mum, contacted the court about his con- held, and allowed the working State to make cerns" and "would have dismissed Brass as copies disputed of the documents but ordered counsel of record." The court thus held that them not to disseminate the information to Menzies had unreasonably acted any parties. evidentiary third hearing circumstances and denied his motion for proceeded planned January 15. Men 60(b) relief. again objected zies began when the State 5, 2004, April T47 On the district court referring disputed to the documents. The regarding issued its order the destruction of court took the matter under advisement and the documents that had been held inadmissi- reviewed disputed Uno as well as the docu January ble at the evidentiary hearing. evening ments over the recess. When the The court destroy ordered the State all day, reconvened the next it ruled that the documents that had been on Menzies' disputed documents were inadmissible. index of any withheld documents unless It also ordered the State not to make already documents had pos- been its copies of the destroy documents and to provided session or were to the State from copies already possessed it at the conclusion addition, another source. the court or- hearing. The court indicated that if dered the State not to disseminate the infor- question State wished to witnesses based mation contained the documents or investi- materials, on the it should discuss the matter gate matters learned of from its review of along counsel, at side bar with Menzies' "and the documents. questioning then the proceed will on a ques tion-and-an-opportunity-to-object basis Mengies April 148 On filed a question." each Following evidentiary appeal notice of with the district court indi- hearing, proposed Menzies filed a order re cating that he would seek review of the lating to the destruction of the documents 60(b) court's denial of relief as well as the the district court had ruled inadmissible at regarding order the destruction of the inad- evidentiary hearing. objected The State missible documents. appeal is now order, proposed to Menzies' arguing that it jurisdiction before this court. pur- We have beyond went scope of the court's instruc 78-228)G) § suant to Utah Code Ann. tions, proposed and filed its own order. (2002). February On the court is- sued ruling. analyzed its The court POST-APPEAL MATTERS Menzies' claims separate under four subsec- 60(b): 60(b)(1) 60(b)(4) addressing tions of rule Before the merits of Men- (6). through appeal, zies' dispose The court must first found Brass' two representation clearly procedural additional constituted ineffective matters that arose af- counsel, stating appeal assistance of ter Menzies' that Brass' ac- was filed with this court. inexplicable tions "were failures to followru- party Each filed with this court a motion dimentary procedural requirements regarding issues that are extraneous to the comply with court-ordered appeal. deadlines." Ac- substantive issues on We first ad- court, cording ap- "inaction dress the motion filed the State and then pears to have been willful and deliberate the motion filed Menzies.

501 in these other position has taken desig {50 State record Following Menzies' counter State's is proceedings certain strike moved to nation, the State Namely, the state this case. argument in part of not were that it contended transcripts should not defendants that criminal argued court district by the considered record with the parte communications in ex 60(b) engage condi motion. We the rule ruling on negli is that Menzies then claimed motion, court but requiring tionally granted the State's court to contacting the district not gent for indicating affidavit to file an counsel Menzies' this infor Because notify it of Brass' errors. dur referenced transcripts were whether decision, deny we 60(b) explaining to our and irrelevant proceedings mation is rule ing the motion. Menzies' proceed to those transcripts' relevance the brief the affidavit After both ings. of this addressing the merits 153 Before filed, re the State were matter ing in this litigation on the to comment pause we motion, that we strike requesting its newed regarding engaged parties have that were transcripts record from the The volumi- above. matters discussed two as Menzies' as well court the district before twenty years case covers nous record challenged tran- relying on arguments stage trial during the litigation, both ' seripts. briefing in this phase. The a multi- and includes also extensive case is {51 citations Menzies' reviewed have We references arguments as well as legal tude of conclude transcripts challenged relating to the record portions of the merit are without arguments the State's Re- history of the case. twenty-year as- Contrary to the State's entire irrelevant. is a time-intensive such as this solving a case challenged transcripts sertions, several to that to add parties chose Yet task. referenced not even are by the State motions discussed by filing the two task Moreover, briefing. some above, involved extensive which also each of the district actually before transcripts were fact, these two 60(b) proceedings. briefing on briefing. rule during the court quantity of alone far exceeds motions proposition every factual importantly, Most on entire frequently receive briefing we challenged tran- Menzies cites for which voluminous consider such do not cases. We to other by citations supported scripts is particu- to be issues briefing on extraneous before that were the record portions of We judicial resources. use of 60(b) larly good proceed- during the rule court in this parties both motion admonish deny the State's therefore therefore ings. We in the us appearing before argument parties case and portions of Menzies' to strike to is- litigiousness constrain their future to transeripts. We challenged rely on the to the mat- material both relevant sues on those tran- not relied that we have note this court. ters before not before scripts that were general- opinion, as we of this portion OF REVIEW STANDARD appeal. new evidence ly not consider do argu majority of Menzies' 154 [ counsel argument, Menzies' After oral 52 district court's with the appeal deal ments on authori supplemental styled as a letter filed 60(b) has broad dis ruling. A district took this we has filed since ty-the third she aside a to set on a motion to rule a mo cretion well under advisement-as matter 60(b) of the rule judgment judicial notice of default take requesting that we tion v. Lund Procedure. See of Civil Rules Utah made statements and oral letters ¶ 277; Brown, Russell P.3d 2000 UT proceedings.6 in two other the State (Utah 1984); Martell, P.2d request v. vague made a counsel also Musselman, 667 v. Servs. Dep't Soc. State provide require the State's counsel we Thus, 1988). (Utah re we to the oth related information" P.2d relevant "all court's denial Menzies, a district view According to proceedings. er evidence, attempts extra-record but is Procedure that the information 'late 6. We note appeal. consider typically do not authority which as con- supplemental provide 1990). (Utah Bonacci, 788 P.2d Appel- Low 24(j) Rules of of the Utah sidered under an court, abuse of discretion Galetka, standard of trict see Wickham v. 2002 UT Russell, ¶¶ review. 681 72, 7, 19, P.2d at 1194. Howev (analyzing 61 P.3d 978 ineffective er, emphasized we have that "the [district] question assistance of counsel issue as of law Lund, court's discretion is not unlimited." even where trial already rejected court had 75, ¶ 9, 2000 UT 11 P.3d 277. It is well claim), or is remanded to the district 60(b) established that motions should be lib court for an evidentiary hearing, see State v. ¶ erally granted na Lovell, equitable because of the 40, 22, ("Hav 1999UT 984 P.2d 382 ¶ 10. ture of Therefore, the rule. Id. a ing remanded this case evidentiary for an district court should exercise its discretion in hearing on the conflict [of interest] issue favor of granting relief so that controversies under Rule 23B the Utah Appel Rules of can be decided on the merits rather than on Procedure, late we defer to the trial court's id.; Musselman, technicalities. See 667 P.2d findings of fact but treat the conflict issue as at 1055-56. Accordingly, it is an abuse of law."). question a 60(b) discretion for deny a district court to yet this court has not evalu motion to set aside a judgment default if ated the appropriate standard of review for there justification is reasonable for the ineffective assistance of counsel claims under moving party's party request, failure and the Pena, the test we set forth in State v. 60(b) Lund, ed in timely relief fashion. (Utah 1994), P.2d 938-39 modified ¶75, 11, 2000 UT 11 P.3d 277. ¶ Levin, 50, 25, State v. 2006 UT 144 P.3d $55 addition, a district court's Accordingly, 1096. we opportunity take this ruling on a motion to set aside default to reevaluate whether correctness is the judgment "must be adequate based on find proper standard of review. ¶ 9 ings (citation of fact the law." Id. Levin, 158 Under omitted). we quotation internal consider marks We review a district three findings court's factors to determine of fact un whether we give should some der a deference to a clear error district standard of review. Chen ¶ Stewart, v. application 2005UT court's specific legal 1 n. 123P.3d 416. of a doctrine to the facts: We review a district court's conclusions of correctness, law for affording the trial court (1) degree variety complexity no deference. Chipman Richins v. Delbert legal facts to which the rule is to be Co., (Utah & Sons 817 P.2d Ct.App. (2) applied; degree to which a trial 1991) (reviewing district court's conclusions application court's legal of the rule relies 60(b) of law in context of a motion for cor "facts" observed judge, the trial rectness). If a district ruling court's on a "such appearance as a witness's and de- 60(b) motion is clearly based on erroneous meanor, relevant application to the of the factual findings legal conclusions, or flawed law that adequately cannot be reflected the district court likely abused its discre courts;" record available to appellate Lund, 75, ¶ 9, tion. See 2000 UT 11 P.3d (8) "policy other weigh reasons that 277. against for or granting discretion to trial courts." Here, the substantive issue un derlying 60(b) (citation the district ruling omitted). court's factor, While the first Menzies' claim that provided variability facts, ineffec would favor tive assistance of counsel. A claim of ineffec granting court, deference to the district tive assistance of presents a mixed second and third weigh heavily factors question of law and fact. against Strickland it. Ineffective assistance of counsel Washington, 466 U.S. 104 S.Ct. claims unique species are a of claim that are (1984). 80 L.Ed.2d 674 Traditionally, frequently raised for the appeal first time on this court has reviewed a lower court's factu regularly and are decided based on the ree- findings error, al for clear but has reviewed ord. Even when we remand for an eviden- application of the ineffective tiary assistance hearing under rule 23B of the Utah Procedure, Rules of Appellate standard to the facts for rely on correctness-even when initially the claim is heard the dis- facts placed found and in the record and do corpus cases to ensure habeas power over ultimate le court's not defer justice done. ¶ 22, is 1999 UT gal decision. Lovell Therefore, court's direct trial P.2d ¶ 61 court's hold that We play a role generally do observations discre abuse of ruling constituted received a defendant determining whether to relief entitled because tion un and it is of counsel effective 60(b)(6) ineffective due to under rule the district deference necessary grant gross negligence.7 counsel of assistance an inef where minority of cases in the court disagreement our already noted have We is first claim of counsel fective findings, so factual court's district with the Accordingly, we court. that before raised argument second not address we do appli court's the trial for correctness review However, agree with we length. at facts, we will but law to of the cation discretion its court abused district findings of fact court's district overturn inequitable to it would be by finding that clearly erroneous. they only if are negli he was because Menzies relief grant ¶ 59 of the appeal Finally, Menzies' and for contacting the court for not gent destruc regarding the order court's district attorney. Because as his keeping Brass at inadmissible ruled documents of the tion findings to dis on these court relied district January hearing held evidentiary 60(b) arguments, several of pose of discovery. We an issue of deals 60(b) discussion. in our issue this we address discovery ruling on a court's a district review erred court that the district Finally, we hold v. Loud Green of discretion. for abuse issue its order and that of Uno application in its ¶ 37, er, 29 P.3d 2001UT docu privileged of regarding the destruction sup must be possession in the State's ments ANALYSIS plemented. the follow raises appeal, 160 On ¶ 62 us deal issues before While (1) erred court the district arguments: ing 60(b) motion, we must 60(b) only with Menzies' rule under denying him relief us the case before fact that (2) sight of the Procedure; lose the dis of Civil Rules Utah seeking habeas petition post-conviction negli is a ruling that Menzies trict court's penalty sentence. a death Brass or corpus relief dismiss failing to either gent for proceeding is a proceeding post-conviction A premised Brass' failures notify the court which importance, over (8) fact; of constitutional findings of clearly erroneous due responsibilities supervisory judiciary has failing to either Hable for holding Menzies discharging role. our constitutional of Brass notify the court Brass or dismiss in the stakes role, recognize must this an inad failures, allowed court take proceedings, post-conviction volved fundamental of Menzies' waiver vertent satisfy ourselves steps to appropriate regard (4) order court's rights; sentences, and death reliability convictions documents privileged ing the destruction fundamental petitioner's and ensure evidentiary hearing at the inadmissible ruled this As protected.8 adequately are rights cure the did not January held on noted, law should "[The previously forth set of the standard court's violation unreasoning that where so blind not be Uno, 932 Ass'n v. Legal Lake Salt Defender should [plaintiff] (5) injustice has resulted an 1997); (Utah P.2d Smith, 602 remedy." Martinez without supervisory equitable and its invoke should right or her petitioner waive his 60(b)(6) row death is dis- ruling rule our 7. Because proceedings. See 60(b) post-conviction arguments, we do positive of Menzies' (2002). 78-35a-202(2)(a) § other arguments raised under Ann. Code Utah address holding under our rule. Because portion of that relief, we requested 60(b)(6) grants Menzies his underlying analysis the framework 8. For post- argument address his do not likewise corpus petitions, see habeas right petitioner cannot waive conviction (Utah 1029, 1032-36 777 P.2d Cook, Hurst v. We through misconduct. post-conviction review 1989). however, note, conduct a court must do indigent allowing an analysis before waiver (Utah 1979). P.2d With this frame P.3d 277. this discretion is mind, work in we address tempered by of Men merits the fact the rule is de signed zies' claims. to be remedial liberally and must be applied. 110; Cmty. see also Dental Tani, (9th L. THE Servs. v. DISTRICT COURT 282 F.3d ABUSED 1169-70 Cir.2002) ITS DISCRETION BY 60(b)(6) (discussing DENYING of the Fed Procedure). MENZIES' MOTION eral Rules of Civil "[JJudgment by default is an extreme measure and a case ¶ 63 appeal, On argues should, possible, whenever be decided on the the district court abused its discretion Tani, (citation merits." 282 F.3d at 1170 by denying his motion to set aside Brass' quotation internal omitted); marks see also provisions defaults under multiple of rule Dept. Musselman, State Soc. Servs. v. 60(b) of the Utah Rules of Civil Procedure. (Utah 1983) (same). P.2d Accord Specifically, Menzies claims that he is enti ingly, a district court generally "should be 60(b)(1) 60(b)(4) tled to relief under rule and indulgent vacating toward" judg default (6). through pertinent The portions of rule ments, Katz, 93, 732 P.2d at and "in must 60(b) state as follows: cline granting towards relief in a doubtfal On upon motion and such terms as are case to party the end that may the have a just, may the court in the furtherance of Lund, hearing." 75, ¶ 10, 2000 UT 11 P.3d justice party relieve a or legal repre- (citations 277 quotation and internal marks judgment, order, sentative from a final or omitted). Thus, quite "it is uniformly re proceeding (1) for following reasons: garded as an abuse of discretion to refuse to mistake, inadvertence, surprise, or exeusa- vacate a judgment default where there is a (4) neglect; void; ble ... judgment is justification reasonable or exeuse for the ... (5) judgment satisfied, has been re- failure ... timely application is made to leased, discharged, or prior or a judgment ¶ 11 (citations set it aside." and internal upon which it is based has been reversed omitted). quotation marks vacated, or otherwise or it is longer no In general, 164 a movant is enti equitable judgment that the should have tled to have a judgment default set aside prospective (6) application; other 60(b) (1) under (2) if timely; motion is reason justifying operation relief from the there is a basis granting for relief under one judgment. The motion shall be (8) 60(b); the subsections of the mov- made a within reasonable time and for alleged ant has a meritorious defense. See (1), ... reason[] not more than 3 months Forwarders, Erickson v. Inc., Schenkers Int'l order, after judgment, or proceeding (Utah 1147, 882 1994); P.2d 1149 Mussel was entered or taken.... procedure The man, 667 P.2d at 1055-56. These consider obtaining any judgment relief from a ations should be addressed in a serial man shall be prescribed motion as in these Erickson, ner. See 882 P.2d at 1149. In byor independent rules action. words, other there is no need to consider 60(b) Rule equitable is an designed rule to whether there is a basis for setting aside a balance competing finality interests of judgment default if the motion was not made Brown, and fairness. See Lund v. 2000 UT in timely manner, and no need to consider 75, ¶ 10, 277; 11 P.3d Laub v. S. Cent. Utah whether there is a meritorious defense if Assn., (Utah Tel. 1304, 1982). 657 P.2d 1306 grounds there are not id.; for relief. See see In balancing competing interests, these Musselman, ("[It also 667 P.2d at 1056 is district court must consider all of the attend unnecessary, and inappropriate, moreover ant Pierce, circumstances. See v. Katz 732 even consider the issue of meritorious de 92, (Utah 1986); P.2d n. 2 98 Heath v. Mow fenses unless the court is satisfied that a er, (Utah 855, 1979); 597 P.2d 858 Olsen v. shown."). sufficient excuse has been Accord Cummings, (Utah 1977). 565 P.2d 1124 ingly, in determining whether equitable Because of rule, nature of the court abused its denying discretion in Men district court has 60(b) broad discretion to rule on motion, zies' we consider these ele 60(b) Lund, motion. ¶¶ 9-10, 2000 UT ments in turn.

505 60(b) Timely argues that Menzies' 60(b) T The State Was 67 Motion A. Menzies' rules under the Utah was insufficient motion must question first therefore and was practice motion governing 60(b) motion Menzies' whether consider motion argues that the untimely. The State 60(b) must "be motion timely. A 7(b)(1) Rules of the Utah rule meet did not for rea time a reasonable made within motion Procedure, "[a] which states Civil after 3 months (1) than not more succinctly ... writing son[ ] and state shall R. Utah ... was entered." judgment sought and relief particularity The State sought." 60(b). the relief subsection cases where grounds P. Civ. attempt may was re- motion (b)(1) movant argues applies, also by a memoran- accompanied "be quired filing period three-month cireumvent ... relied on authorities points dum Russell subsection. another relying on 1984); Code J.D. (Utah Utah the motion." support Martell, P.2d 2008). 4-501(1)(A) As the (repealed Ass'n, P.2d Admin. Tel. Cent. Utah Laub v. S. notes, correctly State (Utah 1982); v. Delbert Richins 1304, 1308 either not meet did April filed on Co., P.2d Chipman & Sons asserts that The State requirements. 60(b), a rea (Utah Under Ct.App.1991). proper mo- file a did not therefore each facts of upon the "depends time sonable after the months until nineteen tion the interest considering factors such Hunt filed judgment, when entered delay, prac for the reason finality, the According to supporting memorandum. earlier to learn litigant ability of the tical 60(b) motion Menzies' State, this renders to prejudice and upon, relied grounds the untimely. P.2d Wright, 850 v. Gillmor parties." other 1993) (citations internal (Utah the and State's problem 431, T68 435 omitted). the general, In distinguish marks fails to quotation the State is that argument time supported reasonable properly the party satisfies that is moving a motion between requirement acted "that she particularity if she shows of the requirement purposes for purposes timely filed for relief became is for the basis and a motion diligently once 60(b). provisions seeking relief limitations delay avoiding the available, that the designed to are 4-501 7 and rule opposing rule hardship to the Both undue not cause did (1) preju mitigating Inc., policies the Constr., "promote 802 Nagle v. Workman party." allowing that parties opposing (citation to dice (Utah Ct.App.1990) 749, 752 P.2d (2) ... and the motion respond to to party omitted). marks quotation internal the apprised of can be a court assuring that us, before In case T66 a it with upon and rule motion of a basis dismissing Menzies' case judgment court's Dev., understanding." See Holmes proper 11, Brass January 2002. ¶ 58, on 38, 895 entered Cook, 48 P.3d was 2002 UT v. LLC 60(b) exactly three motion Menzies' filed to motions for requirements (discussing motion 11, This later, 2002. April on months "comply with amend). fails party aIf memo- supporting a accompanied rules," was a dis practice motion formal Utah's specif- "[the randum, discretion, deny stated instead but its may, within court trict forth be set shall this motion for it is insuffi grounds ie grounds on motion However, However, sufficiency memorandum." subsequent in a 159. cient. memoran- timeli necessary component filed never subsequent logically Brass 60(b) supported for timely was not the court dum, motion move can party A ness. may filed be motion appearance that its her the fact despite Hunt entered until relief it lacks August because, example, for memorandum insufficient supporting situation, between elapsed In such Thus, months particularity. sixteen policy discretion, 60(b) with the consistent motion and filed the time deny above, either Our noted briefed. concerns properly motion was time to allow 60(b) being insufficient motion as Menzies' whether is to determine task insuffi originally supplement party circum- timely filed motion was us, case before In the cient motion. stances. district court option, 60(b). chose the holding latter tions of rule the asserted 60(b) timely Menzies' motion grounds was filed requests for Menzies' for relief are and that instance, Menzies should sup- be allowed to the same in each namely, Brass plement the representation. motion Therefore, under the deficient cireumstances. our ini The district entirely tial task is to within its determine which subsection of 60(b) applies discretion to do so. rule arguments. Menzies' See Co., Richins v. Chipman Delbert & Sons 169 We hold that Menzies' (Utah 817 P.2d Ct.App.1991); Rus timely only filed. complied Menzies not Martell, (Utah sell 681 P.2d with the three-month limitation contained 1984). 60(b)(6) We hold that applies rule 60(b), but also moved the district court arguments Menzies' and therefore do not to set aside the judgment default within a address arguments under the other reasonable time under the cireumstances. 60(b). asserted subsections of rule Although the motion supported was not un til later, sixteen 60(b)(6) months delay was due 171 Rule is the "catch 60(b). representation provision deficient all" and the of rule provides It that a fact that party he was misleading may judgment about relieved from a "any the status of the case. Menzies other reason justifying was not relief from the fully grounds operation aware of judgment." relief until Utah R. Civ. P. 60(b)(6) August added). finally (emphasis when Hunt informed Because rule 60(b)(6) him of Brass' is meant point, operate failures. At that residuary Hunt as a clause, promptly may it supporting filed a not be upon relied if memorandum behalf, grounds asserted for relief the State had fall within ade quate 60(b). other opportunity subsection oppose of rule Cmty. Menzies' mo See Moreover, Tani, tion. Dental Servs. v. acquiesced the State F.3d (9th delay Cir.2002); Russell, during 1195; the entire sixteen months. P.2d at Ass'n., The State Laub v. challenged never S. Cent. Utah Tel. Menzies' motion 657 P.2d (Utah 1982). on the basis particularity 1306-07 words, but instead other grounds 60(b)(6) waited nine months and for requested per then relief under are ex grounds mission to file a clusive of response. late for relief The district allowed un court der Russell, never ruled on other subsections. request, State's See 681 P.2d 1195; Tani, at and the State did not 282 again. raise the F.3d at issue 1168 & n. 8. Furthermore, cireumstances, Under 60(b)(6) relief under the factors mili rule is tate in favor meant Gillmor, exception of to be the Menzies. See 850 rather than the (In rule; P.2d at 435 assessing previously have whether a held movant that it should 60(b) requested be "sparingly relief within invoked" "only a and used reasonable time, the court unusual exceptional and considers "such factors as cireumstances." Laub, (internal finality, interest 657 P.2d at delay, reason for 1307-08 quotation practical omitted); ability marks litigant see also Pioneer learn Inv. Servs. Assocs., earlier of Co. v. grounds upon, relied Brunswick prej and 507 U.S. (citations 1489, parties." (1993) udice to other 113 (re S.Ct. 123 and inter L.Ed.2d 74 quotation omitted)). nal 60(b)(6) marking marks that under rule Accordingly, of the Fed we hold eral Procedure, that Rules of Civil party a was must timely proceed filed show "extraordinary and cireumstances"); Tani, to address the as (same). grounds serted 282 F.3d at relief. 1168 172 argues Menzies that there are B. Menzies Is Entitled to Relief exceptional cireumstances warranting relief 60(b)(6) Under Rule 60(b)(6) under rule because Brass rendered {70 The second issue we address our ineffective assistance of counsel and was 60(b) analysis is whether Menzies is grossly entitled negligent. While yet we have not to relief under of the subsections of rule had occasion to consider whether conduct 60(b). above, As noted argues Menzies that such as Brass' 60(b)(6), warrants relief under he is entitled to multiple relief under subsec- we previously have attorney examined con-

507 con already considered it had 60(b)(1). because Under rule of context in the duct misapplication 60(b)(1). This is a under a duct from relief may obtain 60(b)(1), party a rule 60(b)(6) cannot "mis is that rule demonstrate the law. she can of if he or judgment fall relief grounds if the upon relied be ne inadvertence, or excusable surprise, take, 60(b)(6) subsection, not that 60(b)(1). judg A another within P. R. Civ. Utah gleet." already con has if the court attorney apply misconduct does due entered ment v. S. Laub See ground. if only another sidered this subsection under aside may set be v. Spas Ass'n, Mini 1306-08. See P.2d at 657 is excusable. conduct Tel. Cent. Utah (Utah 132 conduct Brass' Comm'n, P.2d concluded Having Indus. attorney exer words, encom to be 1987). exceptional if egregious In other too conduct defined diligence," 60(b)(1), "due the district cised by rule passed in which manner with consider proceeded consistent is should have similar attorney under 60(b)(6) con of reasonably prudent instead arguments under acted, judgment have would only cireumstances if "ex 60(b)(6) apply could cluding that Thus, 60(b)(1). under pres aside may be set also [welre traordinary cireumstances should judgment a default added). we held Lund (emphasis ent" due entered had been it because aside set interpreta legal faith, legitimate" "good to a a distinction draw therefore 175 We erroneous. out to be attorney turned tion that negligent grossly or willful between ¶¶ 16-19, 11 P.3d UT mere that amounts conduct conduct inadvertence,. the latter While or negligence alleged conduct by rule addressed of conduct types are of assistance here-ineffective by Menzies alleged as that 60(b)(1), such conduct ery a far negligence-is gross seope of beyond clearly is Menzies warrants neglect" "excusable addressed properly more is not al subsection 60(b)(1). does under relief Ap 60(b)(6). Court the Utah As diligence due exercised lege that 60(b)(6) 'gufficiently noted, is "Rule faith good peals due were failures that his judg to set aside a court Rather, permit broad' the law. interpretation counsel." excep for ineffective ment performance Brass' argues that ¶ 27 P.3d 9 n. A.G., App willfullyfailed 2001UT re in that tionally deficient Sullivan, 2d 29 Utah obligations (quoting Stewart most basic comply with (1973)). decision Our the status about P.2d consistently misled ma decisions noted, consistent also As his case. have appeal willful have been courts federal appears jority of "inaction Tani, igno of Seq, result 282 eg., than rather this issue. and deliberate considered words, demon ("[Where the client In other at 1169 carelessness." F.3d or rance part of was conduct on negligence gross strated argues the client against judgment with which inexcusable, counsel, proposition a a default 60(b)(6)."); the State which agreed court pursuant district aside may be set Rule Inc., Labs, Wang Corp. Sys. allegations v. Virginia appeal. on concedes Info. ("[Alttorney (4th 338, which extraordinary 342 situation Cir.1991) F.2d 932 "an amount mere a client classified logically actively be misleads fairly or which cannot malfeasance " Co., 507 U.S. Servs. successfully Inv. Pioneer neglect.? might culpable comparably isor States, motion."); 60(b) v. United Carter Klapprott (quoting at 394 a Rule ground 384, 266 L.Ed. 98 69 S.Ct. Ctr., U.S. F.2d 335 804 Med. Einstein Albert rule a Cir.1986) (reversing denial asserted (3d (1949)). Accordingly, 808 by addressed attorney's cannot "blatant for relief grounds 60(b)(6) on based orders"); L.P. explicit [court] 60(b)(1). for disregard rule Matthews, 235 F.2d 329 Steuart, Inc. v. found court T74 While 60(b)(6) "is rule (stating (D.C.Cir.1964) fit did not by Menzies alleged conduct per ... when relief permit enough to broad it 60(b)(1), found it also rule criteria grossly him cause 60(b)(6) problems sonal under relief grant Menzies not could neglect a diligent client's case and ing mislead his or representative her capacity and client"). subverting the client's Therefore, interests. unknowing "an client should not be held lia ¶ 76 Before addressing the mer ble on the basis of a judgment default result Mengies' its of arguments under rule ing from attorney's an grossly negligent con 60(b)(6), pause argument address an duct, and ... sanctions imposed should be on by raised the State that is relevant lawyer, rather than the faultless client." distinction we have drawn above. The State Id. at 1169. To hold otherwise would be to argues that Menzies must be held accounta ignore the remedial equitable nature of ble for Brass' through failures principles of 60(b). rule Id. at 60(b)(6) 1169-70. Rule is agency and therefore Menzies cannot obtain designed remedy judgment excep when 60(b). relief under position The State's is tional circumstances present, are and it certainly general true as a proposition: an would defeat purpose attorney's rule if a negligence is ordinarily attribut client could not obtain relief able to under that sub client because an attorney acts as section agent an because he or Tani, for she responsi her was held client. 282 F.3d at 1168; ble Russell, egregious lawyer see also misconduct. P.2d at "When (holding attorney's attorney neglect grossly is negligent judi was ... "attrib utable to system [the cial through client] principles credibility loses as well as the agency"). Under appearance representa fairness, American if the result is that an system tive litigation, party voluntarily innocent party is forced to suffer drastic chooses attorney her gener therefore is consequences." Id. at Furthermore, ally by bound the acts or omissions of his or justification for imputing the acts and her attorney. See Co., Pioneer Inv. Servs. omissions of counsel to his or her client are 396-97, 507 U.S. at 113 S.Ct. 1489. Under present here; Brass appointed rule, a court considering whether to set pursuant to Utah Code aside a judgment 60(b)(1) default under rule 78-85a-202(2)(a) section (2002), which does must generally determine whether the ac entitle Menzies to make a voluntary tions of party both a and his or her counsel choice with regard See, to his counsel.10 eg., are excusable in assessing whether all the Tani, 282 F.3d at (noting that a law surrounding cireumstances equitable warrant yer's negligence ordinarily is attributable to relief. Id. at 113S.Ct. 1489. the client because the client "presumed is have voluntarily lawyer chosen the as his T 77 The vastly situation is differ representative ent, agent"). however, Nor does it ap when an attorney willfully dis pear regards choice, had a interests, client's the ree- acts in grossly fashion, negligent ord indicates renders ineffective as that Brass appointed sistance of counsel. after a When fruitless sought relief is four-month search grounds yielded 60(b)(6), no attorney other willing the client and able to seeking is represent relief basis that his or Menzies. Accordingly, her attorney "display[ed] neglect gross so request that it for rule relief cannot be defeat Tani, ed on the inexcusable." (in basis that he is accountable for 282 F.3d at quotation omitted). ternal marks In such Brass' conduct. With this distinction elari- circumstances, attorney the fied, is not acting on we now address request behalf of the client blatantly but is 60(b)(6) disregard- relief, rule beginning with argu- 9. say This is 60(b)(6) not to seeking that a client 10. We also note that statutorily Menzies is enti relief cannot responsible be held for his or her appointed tled to counsel under Utah Code sec 60(b)(6) own actions. Rule "is intended to en- 78-35a-202(2)(a) (2002). tion litigant Where a is compass beyond errors or petitioner's actions the counsel, statutorily entitled to litigant the cannot Tani, control." 282 F.3d at 1170 n. 11. To the be held negligence liable for the of his or her parly extent seeking that a relief under rule T.S. v. State, attorney. 2003 UT 54, ¶ 11, 82 P.3d 60(b)(6) is at fault for judgment, the default the Holding 1104. otherwise would "impermissibly district court within its may, discretion, deter- undermine{[ right ] her to counsel." Id. mine inequitable that it would be grant to relief based on all of the surrounding circumstances. State, P.3d 2003 UT In T.S. assis- ineffective rendered Brass that ments very simi argument an considered we of counsel. tance Menzies, in the albeit made to that lar parental terminate to proceeding aof context rule under to relief entitled is Menzies 1. parental petitioner's In that rights. ineffec- rendered 60(b)(6) because appoint terminated, and her been had rights counsel of assistance tive appeal within an to file failed had ed counsel lawyer above, egregious As discussed T78 4(a) of by rule required days, as thirty cir- exceptional an constitutes misconduct Id. Procedure. Appellate of Rules Utah relief litigant a may allow that cumstance over file an to moved petitioner The T1 1-3. 60(b)(6). rule under judgment default failure a that arguing appeal, of notice due in this actions Brass' argues that neglect to "excusable due be excused should of coun- assistance ineffective 4(e) to amount Utah case rule under cause" good under to relief is entitled he and thus sel T1. The Id. Procedure. Appellate of Rules addressing whether 60(b)(6). Before motion, and the denied court of assistance ineffective as qualify actions affirmed, relying on Appeals of Court Utah wheth- however, determine must counsel, is accountable party principle assis- the effective right to has er 114-5. Id. conduct. neglectful attorney's her three advances counsel. of tance review, we reversed certiorari On (1) has a statuto- he point: this arguments 4(e)'s "rule holding that appeals, of court counsel of assistance effective right to the ry its within ... includes exception 'good cause' 78-85a-202 section Code to Utah pursuant per- where cireumstance unusual reach effective to the (2) right has a (2002); he un- counsel appointed to is entitled who son Consti- Utah under counsel of assistance effec- not receive does Utah der Code] [the effective to the (8) right has a tution; Code Citing Utah 99. Id. counsel." tive States the United of counsel assistance (1999)-which con- 78-8a-918(1)(a) section Constitution. strikingly similar is language tains are 78-352-202(1)(a)-we Code the Utah stated of sections T 79 Several section argument. codified expressly first "(tlhe has to Menzies' relevant Section legislature who person T8-35a-202(1) counsel "[a] provides represented to be right parent's con- whose proceeding." to death a termination stage sentenced of every has been at would be "the statute affirmed noted has been We and sentence Id. viction court, only on the open illusory guaranteed it advised if shall be appeal meaningless or legisla- chapter of counsel. provisions assistance ... of record inéffective conviction to the challenges not be allowing should 'effective' omission ture's coun- appointment only and the provide sentence death intent suggest read addition, (inter- indigent defendants." Id. sel for counsel." ineffective omitted). 78-85a-202(2)(a) follows: marks quotation section nal states ap- court requests If a defendant equally is analysis in 7.8. 182 Our determine counsel, shall point "[Bly ex us. case before applicable If indigent.... is the defendant whether counsel appointed right tending the is indi- defendant that the finds post-conviction defendants penalty [death who appoint promptly it shall gent, recog expressly cases], legislature our defendants represent qualified is unlike are proceedings [these] nized that by Rule required cases as penalty death intent T6. This civil case." traditional Procedure. of Criminal Rules Utah jurispru corpus habeas our with consistent nature underlying dence provides Finally, section pro penalty death policy reject wishes who defendant "[a] in inherent high stakes ceedings. Given rec- advised be shall of counsel offer liberty-provid proceedings-life such consequences by the court ord safeguard procedural accept petitioner may ing a before rejection step in important is counsel appointed rejection." assuring that the underlying eriminal convic- proposed whether the rule would advance or tion was accurate. merely We refuse pay inhibit these by considerations weighing the lip service to legislatively this protec- created marginal costs and benefits of application its by tion holding petitioner that a in a post- on collateral review." McAninch, O'Neal v. conviction penalty death proceeding only is U.S. 115 S.Ct. 130 L.Ed.2d entitled to ineffective appointed assistance of (1995) (citation quotation internal Therefore, counsel. we hold that Menzies omitted). marks a statutory has right to effective assistance of 1184 The State argues also that "writing an counsel under Utah Code section 78-85a-202. effective requirement assistance into section 183 The State makes arguments two re [78-352-202] would capital post-convie make garding section 78-352a-202. The State first tion litigation interminable and end the finali asserts that we should not establish a statu ty of death sentences." It is true that there tory right to the effective coun general judicial policy favoring the finali because, sel by providing appointed ty judgments. Hurst, See 777 P.2d at counsel must meet qualifications of rule important "[als finality is, as legislature has presumptively estab it does not higher have a value than constitu lished the boundaries of obligations counsel's guarantees tional liberty." Id. We would post-conviction in cases. argument This be remiss in our constitutional role if we drastically oversimplifies the intent and im were to finality allow trump the interests port of rule 8. Consistent with section 78- at post-conviction stake in penalty death pro 852-202(2)(a), rule requires a court ap ceedings. See id. at (discussing point counsel represent indigent petition judiciary's constitutional supervisory power ers in post-conviction proceedings challeng writs). over extraordinary Moreover, Utah's ing a death 8(e). sentence. Utah R. Crim P. post-conviction legislation and associated 8(e) The subsections of rule qualifica contain rules contain appropriate limitations to assist tions that an appointed attorney in such courts in streamlining post-conviction review cases must meet.11 See Utah R. Crim P. penalty See, death cases. eg., Utah Code 8(e)(1)-(5). However, these subsections con § (2002) Ann. 78-35a-106 (discussing various tain provisions no regarding appointed coun grounds under which may relief preclud obligations sel's in post-conviction pen death ed); Utah R. Civ. P. (containing 65C proce alty fact, proceedings. 8(f) expressly provisions dural governing progression "[mjere states that noncompliance with this post-conviction litigation). We are rule ... confident shall not of grounds itself be judiciary, relying on this establishing framework appointed counsel ineffec as well as law, tively common represented can properly the defendant." There fore, post-conviction advance death clearly penalty the rule litiga contemplates standards for tion while ensuring ineffectiveassistance of petitioners counsel receive protections post-conviction they which penalty death legally are cases are found entitled. elsewhere. Because Nor gaps could such conclude that in the statutes applicable rules post-convic has a statutory right to the effective assis tion death penalty tance of proceedings presumptively section 78-85a- limit this 202(2)(a), court's constitutional we do authority over address his federal and such cases. As the United Supreme States state do, constitutional claims. however, We Court stated, has "When faced note such United Supreme States Court gaps in statute, the habeas we have previously looked declined recognize a federal first to the considerations underlying our constitutional right to the effective assistance habeas jurisprudence, and then determined of counsel in state proceed- 11. This case illustrates an deficiency ironic in the capital cases in post-convic- state and federal operation Brass, of rule 8. apparently who met proceedings tion" and that he adequate- "cannot all of the requirements, rule's technical ly represent capital post-convic- defendant unqualified nonetheless to serve as counsel tion cases." Thus, rule 8 creates obviously capital performance reflected standard, minimum but qualifi- does not ensure his admissions that he did "not under- cation. complex stand procedural governing rules

511 coun by requiring proceedings 722, reliability of 501 U.S. Thompson, v. ings. Coleman her role his or discharge adequately to sel 640 2546, L.Ed.2d 115 755-57, 111 S.Ct. See, eg., Flores- adversary process. considered the yet not have (1991). we While (dis 482, 1029 120 S.Ct. at U.S. Ortega, 528 the Utah under right exists a such whether a requires test the Strickland cussing how in this do so need to Constitution, nois there of errors specific how right provided statutory "show[] to litigant of the because case reliability the of foreclose the do undermined We counsel 78-35a-202. by section quota row (citation internal indigent death an that [proceedings]" possibility the Strickland, at 466 omitted)); the effective U.S. right have a may marks tion inmate ("The the of purpose 691-92, 2052 Consti 104 S.Ct. Utah under of counsel assistance anoth for is to must wait counsel of tution, question guarantee that but Amendment Sixth day. er has the assistance a defendant that ensure the outcome on reliance necessary justify that established Having T85 Thus, bench "[the proceeding."). of the effective right to statutory has ineffectiveness of any claim judging for mark counsel, address now wheth we of assistance under so conduct counsel's whether must be perform that has demonstrated er the adver functioning of proper mined frame analytical The ineffective. ance be cannot [proceeding] that process sarial of assistance ineffective assessing work just result." produced having as relied by the Unit developed originally counsel 686, 2052. 104 S.Ct. Strickland, at 466 U.S. v. in Strickland Court Supreme ed States 687, 668, S.Ct. 104 466 U.S. Washington, argues that The State 186 (1984). In the federal 2052, 674 L.Ed.2d 80 Sixth Supreme Court's rely on the should assistance the effective context, right assessing Men jurisprudence Amendment right on a defendant's premised is of counsel of assistance right to effective statutory zies Amendment the Sixth to counsel long relied this counsel. 687, 104 at Id. Constitution. States United ineffective assess test to upon the Strickland has not Supreme Court As the 2052. S.Ct. Bundy v. See claims. counsel of assistance to ensure designed ed, right is 1988). (Utah We 803, Deland, 805 P.2d 763 and reli fair receive defendants criminal statutory right why a reason no discern can liberty are life or before proceeding able be should counsel of assistance effective 2052; also 686, see 104 S.Ct. at taken. that of from something different premised 482, 120 U.S. Flores-Ortega, 528 Roe v. ensuring that right: (2000) (noting the constitutional 985 1029, 145 L.Ed.2d S.Ct. requiring fair reliable is proceeding assistance effective right to the "the process. adversarial functioning sake, properly its own not for recognized is counsel 104 S.Ct. Strickland, at 466 U.S. ability has on it effect but because proceeding ato entitled less is no [proceeding]" a fair to receive accused is counsel when standards meets omit marks quotation (citation internal if coun he would than by statute required "derive[d] is ted). This fairness The the Constitution. required sel were system, justice our nature adversarial in in each same is princi underlying concern "well-tested on the premised is which legal has a litigant indigent an best when fairness-is stance: well truth-as ple effec on both right must render counsel, counsel statements by powerful discovered " to the effect give v. in order States assistance United tive question' sides Cir.2005) ¶ 11, (10th T.S., UT 2003 1264 Collins, right. See F.3d litigant's use Strickland therefore 1104. We P.3d Ohio, 488 U.S. Penson (quoting (1988)); also see claim. L.Ed.2d S.Ct. to evaluate 104 S.Ct. Strickland, at 466 U.S. as ¶ 87 test The Strickland presumption law's "the (recognizing attorney's performance sessing whether adversary in the role fulfill will counsel assistance ineffective amounted envi Amendment [Sixth] process (1) counsel's whether two-part: counsel effective sions"). right "fell it in that was deficient performance fairness ensures therefore 512 objective below an standard of reasonable counsel's conduct falls within range the wide ness"; (2) whether perform counsel's professional reasonable assistance." Id. prejudicial ance was in that "there is a rea In order to overcome this presumption, probability that, sonable but for counsel's litigant must demonstrate the chal-

unprofessional errors, pro result of the lenged actions cannot be considered sound ceeding would have been different." Id. at strategy under the circumstances. Id. 688-89, 694, 104 S.Ct. 2052. If a litigant meets parts test, both of this then pro ¶ 90 requests that we con ceeding is inherently unreliable and the re sult the American Bar Association Guidelines sult cannot Cone, stand. See Bell v. 535 U.S. Appointment and Performance of De 685, 695, 1843, 122 S.Ct. 152 L.Ed.2d 914 fense (ABA Counsel in Penalty Death Cases (2002). We examine each part of the Strick Guidelines) Penalty Death in addressing land test in turn. whether representation Brass' was reason able under the cireumstances. Courts fre

a. performance falls below an ob- quently rely professional on the standards jective standard of reasonableness by established the ABA when determining professional relevant {88 norms under inquiry Our first first prong of the analysis. See, Strickland Strickland test is perform whether Brass' e.g., Beard, Rompilla ance v. 374, 375, 545 unreasonably U.S. deficient. This issue 2456, 125 (2005) S.Ct. 162 L.Ed.2d disputed. 360 (citing Though district court did engage in a thorough Strickland ABA Penalty Death Guidelines and stat analysis, it ing stated in its ruling long "[wle have referred [to these Brass' actions "were inexplicable failures to ABA guides Standards] as to determining follow rudimentary procedural guidelines and (second what is reasonable" alteration in comply with court-ordered deadlines" (citations original) quotation internal that "the ineffective assistance of counsel omitted)); marks Nixon, Florida v. 543 U.S. any neglectful exceeds conduct that could be 551, 125 S.Ct. 160 L.Ed.2d 565 " deemed 'excusable.' The State does not (2004) (citing ABA Penalty Death Guidelines contest finding on appeal, but instead in addressing ineffective assistance under concedes performance that Brass' was defi ); McBride, Strickland Canaan v. 395 F.3d cient. We nevertheless part discuss the first (7th Cir.2005)("We follow the [Su of the analysis Strickland in order clarify preme] Court's lead ... looking first Utab's standards performance the [ABA Penalty Guidelines]"). Death In post-conviction counsel in penalty death pro deed, Supreme Court referred to the ceedings. ABA Death Penalty Guidelines in Strickland itself, noting that guidelines reflect Strickland, an attor Under "[plrevailing practice." norms of 466 U.S. at ney's performance must be objectively rea 688, 104 S.Ct. 2052. While the ABA stan sonable, with reasonableness measured dards are not determinative of whether coun "prevailing professional norms." 466 U.S. at performance sel's was ineffective and courts 688, 104 S.Ct. 2052. "judicial seru- should examine counsel's conduct in light of tiny of performance counsel's must highly all the contemporary cireumstances, id. at deferential" because "it is all easy too for a 688-89, 104 S.Ct. court, they represent do examining [performance] counsel's af "well-defined norms" proved provide ter it guidance unsuccessful, to conclude particular Wiggins Smith, that a courts. act omission of U.S. counsel 123 S.Ct. (2003). L.Ed.2d 471 unreasonable." at S.Ct. Therefore, Because the court Utah's must "eliminate rules do not the distorting currently effects of hindsight ... contain provisions regarding . evaluate the conduct from per counsel's counsel's performance in post-conviction spective at the time." Id. requires This penalty death proceedings, and because it is the court "indulge strong presumption that traditionally duty super- courts to emt. 10.7 Guideline defenses." sible counsel,12 rely on performance vise penalty investigate extends duty to Penalty Guidelines Death ABA investigate "duty to has a phase, our decision. relevant they are extent Guideline mitigating evidence." present and 10.15.1 Penalty Guideline {91 Death ABA Taylor, 529 cmt.; also Williams see 10.7 post-convie- of the duties details specifically L.Ed.2d 395-96, 120 S.Ct. U.S. post- imposes guideline This counsel. tion ineffece- was counsel (2000) (holding that "fully dis- duty to the counsel conviction miti present and uncover failing to for tive imposed obligations ongoing the charge of evidence). tracks" "parallel These gating Penalty Death ABA guidelines." these post-conviction apply also investigation 10.15.1(E) (2003). of One Guideline counsel post-conviction where proceedings, close "maintain duty to the obligations underly "the facts investigate duty to a has litigation regarding client with contact sentence, as as well and conviction ing 10.15.1(B)(1). Guideline developments." performance." trial counsel's items such guideline depth duty is discussed This emt. 10.15.1 Penalty Guideline Death ABA main- "should counsel that 10.5, states which investigate the duty to a has also Counsel client," guideline with contact tain close that mitigation discover "to in order client discussing with (2003), including 10.5(A) also to [and] previously presented prospects and of progress "the client Guideline claims." health identify mental what investigation, and factual emt. 10.15.1 10.5(C)(1). guideline might provide," client that provides 10.15.1 Finally, guideline T 93 informed client keep the also should Counsel liti to seek should counsel "[plost-conviction guideline developments," "litigation of previously issues, or whether all gate deadlines "litigation 10.15.1(E)(1), including un meritorious arguably are that presented, case-related of schedule projected and quality high to applicable the standards der 10.5(C)(6). The commen- events," guideline addition, representation." defense capital that coun- clear makes 10.5 tary guideline to ev at that provides 10.8 guideline "Lclounsel case to every stage of "at obligated sel is exercising professional case, stage of ery and developments of informed client keep the claims legal all "consider must judgment," failure "the and case" in the progress inves "thoroughly and available" potentially professionally relationship is such maintain be claim potential for each basis tigate the emt. 10.5 Guideline irresponsible." it as to whether reaching a conclusion fore duty to communi- In addition - 10.8(A)(1)-(@2) Guideline asserted." be should coun- imposes on also cate, 10.15.1 guideline (2003).13 inves- aggressive duty "to continue sel us, ineffec- Brass' { case before In the Guideline case." of the aspects all tigation of failure beyond a far went pro- Likewise, representation 10.7 tive 10.15.1(E)(4). guideline Penalty Death ABA comply with have an stage every at "[clounsel vides years half five and During the Guidelines. indepen- and thorough conduct obligation Menzies, pro- Brass represented Brass of the issues relating to investigations dent representa- virtually no with vided 10.7(A). Guideline penalty." and guilt both every nearly disregarded willfully notes, tion 10.7 guideline commentary to theAs not com- did case. of Menzies' aspect seriously the "duty take counsel status about innocence, municate to seruti- client's possibility refusing case, repeatedly progress the state's quality of carefully the nize re- failing to calls telephone pos- all re-investigate investigate and require or guideline not read We do legisla- 13. post-conviction current Utah's While clearly are litigation issues encourage the any standards contain do not rules tion recognize barred, counsel, although we procedurally performance clearly often precluded must Code is so Administrative an issue the Utah whether 25-14-6 with- may order counsel. raised contemplates explored improper "counsel's due drawal 25-14-62) r. Code Utah Admin. conduct." (2001). spond to Menzies' correspondence. written presumption reasonableness, Brass' willful These kept actions Menzies in the dark about disregard for Menzies' case possibly cannot procedural posture of Indeed, his case. be construed as strategy. sound See Strick Brass did not inform land, Menzies that his case 466 U.S. at 2052; 104 S.Ct. see had been dismissed nearly until year after also Flores-Ortega, 528 U.S. at 120 S.Ct. summary judgment entered, and Men- 1029 (holding that lawyer "a disregards who zies was not aware of repeated specific discov- instructions from the defendant ery defaults and the resulting sanctions until file a appeal notice of acts a manner that is began Hunt professionally unreasonable" because such a representing Moreover, him. Brass purposely misled Menzies to believe failure "cannot be considered a strategic de that the summary judgment prob- cision; was not filing ... purely is a task, ministerial lem, informing Menzies that he doing was and the failure to file reflects inattention to what necessary was aside, to have it set wishes"). the defendant's representa Brass' despite the fact that he never filed a memo- tion falls far objective "below an standard of randum supporting the rule motion and reasonableness," Strickland, 466 U.S. at defaulted appeal Menzies' from the sum- 104 S.Ct. and therefore Menzies has mary judgment several times. satisfied the first prong of the Strickland test. addition, 195 In Brass never conducted any investigation, despite availability the b. Brass' conduct rendered post-con- the investigative funds, a voluminous record indi- viction proceedings unreliable, thereby cating that investigation necessary prejudicing Menzies' case order to develop claims, Menzies' and his 197 Our second inquiry own awareness of necessity. that During the course of Strickland representation, Brass' test is whether Menzies re- actions prejudiced peatedly asked Menzies' Brass to case. investigate Under por this issues tion of pertaining analysis, to both litigant actual is required innocence and inef- fective "show that assistance of there is a trial counsel. reasonable probability Brass dis- that, regarded but for Menzies' requests unprofessional counsel's errors, and then sat the result the State served discovery proceeding would have been Menzies different." 466 U.S. at 104 S.Ct. because Brass developed had no factual bas- "A es for Menzies reasonable probability claims. Brass is a probability never informed the court sufficient he could undermine respond not confidence in State's discovery outcome." requests Judicial proceedings because he are nor had mally not developed entitled to strong "a objected case and presumption never reliability," when sanctions and imposed were litigant therefore effectively must precluded overcome presumption this from pursuing his demonstrating claims. Nor did litigate Brass counsel's errors proceed issues rendered were present ing in the unreliable. case Flores-Ortega, when he 528 undertook Men- at U.S. (citations zies' representation. 120 S.Ct. 1029 The second amended internal petition quotation omitted). Brass filed on marks Menzies' behalf was little more than a repetition of the claims 198 if a litigant is con that had been asserted in the first amended structively denied the assistance of counsel in petition filed years three earlier, and Brass a proceeding in which he or she is entitled to did oppose not the State's motion to dismiss counsel, the adversary process itself is ren most of Menzies' short, asserted claims. In dered inherently unreliable, prejudice gradually Brass defaulted post-con- Menzies' legally presumed. See id. at 120 S.Ct. viction away case and never informed Men- 1029; Strickland, 466 U.S. at 104 S.Ct. zies that he doing so. 2052. A litigant can be constructively denied 196 There question is no that Brass' ac- counsel in several ways. For example, a tions under these cireumstances constitute constructive denial of counsel oceurs if coun ineffective of counsel. While sel completely subject fails to opposition's counsel's actions are normally entitled to a case to meaningful adversarial testing. See respond not Collings, and did case 1843; develop Menzies' 696,122 S.Ct. at Bell, U.S. Brass motions. various Mullin, the State's 1265; Turrentine at F.3d disregard for Cir.2004). In Turrern- not with reckless (10th only acted 1181, 1208 F.3d disregarded willfully but occurs this stated time, Circuit Tenth Second, Brass' of it. every aspect nearly overwhelmingly estab- the evidence "where post- the entire effectively forfeited attorney abandoned actions [the] lishe[s] itself,. re- never client, and proceeding his loyalty to conviction duty of required discovery repeated disregard to the State's sponded reckless acted with where or the times, and, informed at never requests and interests best his client's them. his reasons or the to weaken failures of his intention apparently were (second discovery al sanctions is that at result F.3d case." client's any- doing (citation internal preventing original) imposed teration Collins, Af- omitted). for relief. grounds thing to establish marks quotation reasoning upon imposed, expanded were discovery sanctions Circuit Tenth ter subject fact material attorney disputed failed issues no there were held sup- meaningful adversari introduced been facts had case no opposition's because disregard recklessly claims, testing-despite port al he did favor of summary judgment interests-because his client's ing granted competency at a position performance summary, Brass' his client's argue State. to withdraw. to the case pending subject to a the State's hearing due to only failed the testing noted but adversary The court 1265. meaningful at F.3d of crucible because inherently post-convie- unreliable the was of in the denial proceeding resulted also circum- legal skills Under itself. his engage[d] proceeding "not tion had counsel at Id. position." clearly prejudi- client's] advocating were stances, [his actions Brass' relief 1266. to entitled is Accordingly, cial. 60(b)(6). rule under coun of denials Constructive where, to coun due found also been have sel rule under relief to is entitled 2. Menzies it proceeding a performance, deficient sel's were actions 60(b)(6) Brass' because U.S. Flores-Ortega, 528 See forfeited. is self negligent grossly of the A "denial 483-84, 1029. 120 S.Ct. at arguing itself, to [liti a addition which 1101 In proceeding judicial entire 60(b)(6) due had rule under to which to relief time and at the he is entitled gant] wanted counsel, preju assistance ineffective presumption Brass' a ... demands right, a entirely entitled he is argues that has been litigant also the because dice" ground independent at Id. adversary process. on the relief the denied presumption and therefore negligent no Because grossly 1029. were 120 S.Ct. actions under pro cireumstances judicial exceptional "to be accorded constitute reliability can above, grounds both 60(b)(6). a forfeiture place," As discussed took never ceedings that ren cireumstances exceptional representation deficient constitute counsel's due to 60(b)(6). liti aWhile inherently unreliable. under relief proceedings warrant ders assis the effective right to a have Id. must gant on relief to seek in order of counsel tance required is litigant T100 Whether 60(b)(6) may also be under relief ground, preju or whether prejudice actual to show lawyer's performance where sought mag on "turns presumed is instead dice not excusable and therefore negligent grossly right of the deprivation nitude Dental Servs. 60(b)(1). Cmty. See rule at Id. counsel." effective (Oth Cir. n. Tani, F.3d case, Brass' abdica In this 1029. 120 S.Ct. 2002). magnitude of sufficient his duties tion issue with it dealt T102 While of the meets both prejudice presume remarkably simi- context, Tami is civil First, purely above. discussed exceptions There, the defendant at bar. meaningful ad case lar provide failed completely infringe- of trademark grounds sued actions no he took testing because versarial ment and retained represent counsel to 60(b)(6). him. relief under rule Id. The court then Id. at 1166. parties agreed to extend noted that the defendant's counsel per- had the time filing answer, defendant's grossly formed in a negligent fashion because but the defendant's counsel sign failed to his failures were "inexcusable inexplica- stipulation and also failed to timely file a ble" and that he "virtually had abandoned his answer. plaintiff Id. The default, filed for client." Id. at 1170. The court also noted only to learn that an answer had been filed that the attorney had deliberately misled his day before, one two weeks late. Id. Having by client repeatedly assuring the client that not received a copy, plaintiff he "was performing his responsibilities," telephoned counsel, defendant's who assured thereby "depriving him of opportunity plaintiff that he would copy. send a Id. take action preserve rights." Id. at However, the defendant's counsel failed to do 1171. While the court did note that a liti- so. Id. At a subsequent hearing, magis- gant's own culpable conduct could serve as judge trate ordered the defendant's grounds for a 60(b)(6) deny a rule to serve the answer participate and to motion, in a the court's review of the record did settlement conference call. Id. at 1167. culpable demonstrate conduct on part When the defendant's counsel failed to do of the defendant. Id. at Therefore, either of these things, plaintiff moved to the court held that the district court had strike the answer again asked for a abused its discretion denying the defen- default judgment. Id. The 60(b)(6) defendant's coun- dant's rule motion. Id. sel failed to file a opposition memorandum in "[ 105 In this the district court abused and, at a hearing plaintiffs motion, its discretion denying Menzies still provide did not plaintiff copy 60(b)(6) motion because Brass' conduct was Therefore, answer. Id. magistrate grossly negligent. Tami, As in Brass re- judge granted plaintiffs motions. peatedly failed to comply with straightfor- 103 During procedural this entire ward events, requirements course of and court-or- the defendant's represented to dered deadlines. He took no action to build defendant that case was proceeding case and allowed the State to obtain a judgment smoothly. default Id. It failing to respond to was not until the order of judgment default discovery. Thus, mistakenly was mailed Brass "virtually abandoned the defendant's office his that he client." became See id. at aware 1170. He also misled of his counsel's failures. Menzies procedural Id. The about defendant posture of his promptly case, retained new counsel being result filed a that Menzies was not motion to set fully aside the default aware of judgment Brass' years failures until after pursuant 60(b) they rule of the Federal occurred. This Rules clearly conduct consti- of Civil gross Procedure. Id. tutes negligence, The district court entitling Menzies to motion, denied the 60(b)(6). finding relief that although rule counsel's actions were not "exeusable" under $106 Before addressing whether 60(b)(1), rule those actions were still charge- Menzies has met the meritorious defense re able to the defendant. Id. at 1167 & n. 6. quirement, it is necessary first to address The court also found that relief was not one portion additional of the district court's warranted due to the defendant's "own 'cul- 60(b) ruling. The district court found that " pable conduct." Id. at 1167. Menzies 60(b) was not entitled to relief be 1104 appeal, On the Ninth Circuit re- cause he "intentionally acquiesced in the de versed the district court. Id. at 1166. lay The of his case." In coming to this conclu court held that while an attorney's negligent sion, the court relied on our holding in T.S. v. acts ordinarily are State, chargeable client, 2003 UT 82 P.3d 1104. In that client should not be held liable for the attor- we held "good that cause" for extending ney's actions where those grossly actions are the time to file an overdue appeal notice of negligent. Id. at 1168-69. It also held 4(e) that under rule of the Utah Appel Rules of grossly negligent conduct excep- constitutes late encompasses Procedure the situation tional circumstances that entitle a litigant to where a litigant's failure to file timely Finally, the taken. then judgment were fault of a the violation due appeal is of notice as kept Brass Menzies that indicates record the effective right statutory about his concerns despite attorney his also noted we 19. Id. counsel. other Brass because intentional his case or negligent progress own party's "a that Brass that Menzies 4(e) inequitable, told attorneys repeatedly relief rule render might acts representation. as- effective showing of ineffective provide notwithstanding a would court's on this district Therefore, Based hold of counsel." sistance keep- Men- negligent found was court Menzies findings that the district language, failing level attorney and for "exercise required as ing Brass zies person reasonably prudent failures Brass' regarding diligence that court contact erroneous; hold we also The dis- exercise." clearly would were his cireumstances not rea- Menzies its discretion court found abused trict court district retained 60(b) because on this sonably prudent relief rule denying Menzies the court inform failed attorney and as his ground. Thus, failures. about 60(b) on this relief denied court Meritorious Meets the C. basis. Requirement Defense (1107 in consider It is true in our inquiry final The T108 60(b) motion, ing a rule 60) whether analysis is rule at all of consideration into take must purpose defense. meritorious alleged a to determine in order cireumstances tendant "is to requirement defense meritorious See 60(b) equitable. relief rule whether judicial review necessity of prevent (Utah 2n. Pierce, P.2d v. Kats pleadings, which, face of on the questions P.2d Cummings, 565 1986); v. Olsen Brown, 2000 UT Lund v. frivolous." are liti 1977). that a (Utah the extent To quota (citation internal 11 P.3d intentionally, a or negligently has acted gant seeking omitted). Thus, litigant marks tion striking an acts may consider some defense proffer "must relief finality allow between balance equitable merit ostensible sufficient at least hearing, notwithstand a fair litigant ing the raised." thus the issue trial on justify a would assis ineffective negligence gross ing the Major-Blakeney Bank Downey State 1172; Tani, at 282 F.3d See counsel. tance 1976). (Utah This 507, 510 P.2d Corp., 545 ¶ 12, 1104. How 82 P.8d T.S., 2003 UT overly burden not set does requirement 60(b) based ruling must be ever, a rule sufficiently is "A defense threshold: some Brown, Lund of fact. findings adequate set judgment a default to have meritorious In this ¶ 9, 277. 11 P.3d 2000 UT Erickson tried." to be entitled if it is aside us to leads the record of review our Inc., Forwarders, P.2d Int'l v. Schenkers clearly the district conclusion par 1994). Thus, (Utah "where 1147, 1149 finding facts record erred aof proffer specific a clear presents ty indicates The record negligent. was Menzies relief] that, [warrant would proven, if defense the status unaware was Menzies shown adequately ... it has claimant by the Brass time of the during most case his defense." and meritorious Indeed, aware was not he a nonfrivolous him. representing ¶ 29, Even 277. 11 P.3d Lund, UT entered had been judgment default that a litigant allow that would denials" granted "general the district year after until Erickson, are sufficient. proven if prevail of the State. in favor summary judgment P.2d at default, Menzies informed Brass When taking he was also assured the meri easily meets 1109 Menzies relied aside, and Menzies it set have steps to In his amend requirement. defense torious Moreover, Menzies representation. on his trial multiple alleged petition, ed reasons informed was not allow that, would proven, if dis multiple Brass' errors judgment default proceeding. post-conviction his prevail represent began Hunt until covery failures fully developed is far record de- While aside steps to set him; prompt ing regard to Menzies' claims as a direct 111 Accordingly,we remand this case to result of the ineffective assistance of his the district court with instructions to set counsel,Menziesis not required to prove any aside the proceedings that place took during of his claims or evidentiary meet an thresh the time that Brass was representing Men- old in order to demonstrate that his claims zies. Menzies should be allowed to investi- Lund, ¶¶ have merit. 2000 UT gate his claims accordance perti- with the P.3d 277. Because requirement this final nent Utah rules and should given 60(b) our analysis met, Menzies is entitled opportunity to amend his pe- 60(b)(6). to relief under rule tition in the event that it is warranted. We now address claim, Menzies' final relating $110 Having concluded the district court's evidentiary rulings during 60(b) Menzies is entitled relief, to rule it is the rule proceedings. necessary also to consider what relief is war ranted. Merely setting aside the default Judgment insufficient, would be for the sanc II. THE DISTRICT COURTS ORDER tions that imposed by were the district court REGARDING THE DESTRUCTION preclude would still Menzies from investigat OF PRIVILEGED DOCUMENTS ing Moreover, his claims. ineffective WAS INSUFFICIENT representation beyond extended well the en try of discovery ¶112 sanctions because Brass argues Menzies also willfully neglecting Menzies' long case district court's regarding order the destruc before the sanctions imposed. were tion of documents that were ruled inadmissi pervade actions the entire course of rep ble at the evidentiary hearing held on Janu resentation, for he took no develop actions to ary 2004, is insufficient and must be Menzies' case even when he was ap first augmented. According Menzies, the dis pointed. Even the second petition amended trict court erred ordering disput that the by Brass, filed filed, first pleading he did ed produced documents be to the State in the little more repeat than the allegations of the place first procedure because the apply petition amended that had been filed three ing product the work doctrine set forth in years previously. addition, Brass took no Salt Legal Lake Uno, Ass'n v. Defender action oppose the State's motion to dis (Utah 1997), P.2d 589 requires miss, which disposed many of Menzies' court to conduct an in-camera review to en Thus, claims. fully order to correct sure that party seeking production meets harm of Brass' assistance, ineffective it is the Uno standard such documents are before necessary to set aside the entire course of his produced. While Menzies acknowledges that representation give Menzies an opportu the district court attempted to cure the Uno nity properly develop his case. We do not violation ordering the destroy State to

undertake lightly. decision post- documents, inadmissible Menzies asserts that conviction proceedings in this case have now the order is insufficient because it does not years, extended for eleven with no resolution require the State to identify which docu apparent in the immediate However, future. ments it already had obtained indepen as we have noted repeatedly, while finality in dent sources and does not contain dead judicial proceedings is an important policy, line for the documents to destroyed. be We the guarantees constitutional of life and liber agree with each of arguments Menzies' and ty prevail must in this instance. See Hurst therefore order the district court to supple Cook, (Utah 1989). P.2d ment its April 5, order of 2004, regarding the simply We cannot allow Menzies' sentence to destruction of the inadmissible documents. be carried out without allowing him to exer right cise post-conviction to Uno, review. In T113 In we considered some of the order to ensure that right this is adequately discovery issues that pervaded have this case protected, it is necessary that Menzies have since petition was the opportunity to investigate his claims and filed. In that LDA petitioned had this present them to the district court proper for court for an extraordinary writ asking that adjudication. we reverse the district court's denial of its the substan- hardship,' obtain 'undue without at 589. Id. order. protective a for by other information of the equivalent tial subpoenas LDA served had State (2) 26(b)(8); the by rule means," required production as the for requests and teeum duces document; the applies to represen- exception LDA's relating to "at issue" all documents of to edited underlying (3) criminal been] [has the in "the document and of Menzies tation claims not re- challenge Menzies' information of to the disclosure in order prevent trial assis- ineffective In Id. rendered claims." had LDA ineffectiveness that to the lated court district the LDA asked an prepare Id. LDA Uno, tance. that suggested we disclosure the preventing order to protective in order file in its the documents index of product work documents, asserting the also and burden its meet help the State court de- doctrine, the district but immunity an in- conduct to court instructed docu- the and ordered request its nied which document of each review camera vacated We Id. produced. be ments in requirements two the first met the State the or- concluding that order, court's district contain not it does "to ensure order immunity doe- product work violated der not be that should information extraneous at 591. Id. trine. Id. the State." to revealed Uno, first recited In we us, issue before Uno Applying ' 115 26(b)(8) Utah in rule rule, contained failed court district that the clear it is attorney work Procedure, of Civil Rules ordering Menzies comply with Uno " tangi 'documents product-defined prior to documents disputed produce anticipation in prepared ... things ble that the materials hearing. The January 15 " " im including 'mental not litigation' but attorney work were to discover sought State the legal conclusions, opinions, pressions, bono pro by Menzies' prepared product, not discoverable attorney' "-is an ories litigation, anticipation counsel " discovery has seeking party 'the unless in order production seeking their " was State obtain cannot need' substantial had claims " oppose hard undue 'without elsewhere materials counsel. assistance ineffective provided " R. Civ. Utah (quoting Id. at 589-90 ship. to meet required Accordingly, the State thenWe (alteration original). 26(b)(8)) P. obtain in order test three-part Uno impres attorney's mental while an noted re- Uno, State Under documents. discoverable, there is generally are sions documents test this to meet quired before are impressions mental if those exception Thus, Id. afterward. produced, were (citation and at 590 Id. "directly at issue." of withheld index receiving Menzies' upon omitted). As we mark quotation internal have should documents, district in which Uno, a sense "There stated test the Uno meet the State required conclusions, opinions impressions, mental production. ordering the documents' there before case and facts' of 'the constitute requiring order court's The district Id. may be discoverable." fore was therefore carefully in documents very produce applied must be exception be cases of Uno. violation ineffective whereby counsel's discovery policy cause credit, ap- it [116 court's To the subsequent freely accessed files can its error recognized pears significantly potential has the proceedings rectify attempted to reviewing Uno after process. preparation the trial impair sought the State ruling the documents it result, set forth such prevent order ordering the and inadmissible to discover must the State three-step test that in Uno However, the court's destroy them. to State attor seeking production meet when clearly a It is enough. go far did order assistance in an ineffective product ney work 26(b)(8) rule of Uno violation may dis be and such documents case before time at this possession in its to have State document each For at 591. closed. anticipation prepared any (1) documents demonstrate must sought, the State pro bono by Menzies' litigation cannot, it and need' "t has 'substantial agents.14 their If there are documents Durrant, 1 119 Justice Parrish, Justice and were included in Menzies' index of withheld Justice Nehring concur in Chief Justice properly documents that are by discoverable opinion. Durham's the State or already that were in the State's WILKINS, Justice, Associate Chief possession prior due to legitimate discovery, concurring in the result. then the State destroy need not them. How ever, the State identify any must such " I docu 120 concur in by result my reached ments destroy all post colleagues. others haste. Ac Given the presented, facts it is cordingly, simply impossible on remand, understand, district court must much less require justify, Mr. State to Brass' conduct in demonstrate which docu this case. Call- ing ments it is entitled his behavior keep, here order the State "ineffective" rather un- to immediately destroy derstates all the case. of the That remaining enough alone is documents,15 and take all require other necessary district court give Menzies the steps to benefit ensure that of the doubt on goes seeking Uno violation to set aside no summary further. judgment granted primarily as

a result of Mr. Brass' represent failure to client's in any interests meaningful way. A CONCLUSION total represent failure to one's chents inter- always ests is T117 ineffective. Although concluding that errors at the district court require reversal, level Brass, 121 Mr. a classmate of mine from note that the trial court functioned with school, has, law past, been a fine great diligence and effort under extraordi- lawyer doing an job. excellent passion His nary difficulties in this case. procedural rights about the of the accused has resulted and substantive Brass, defaults of the ex- willingness in his assigned be the defense tremely posture adversarial and voluminous truly of some awful individuals charged with pleadings parties, of the the extensive and beliey- hideous acts. He has express been an confusing record, state of the and the multi- right er in the of all citizens to a vigorous ple questions contested posed law all against defense charges of criminal behavior great challenge, and the court thorough brought by has, the State. He many in its attention to the case. We take this cecasions, judges reminded juries occasion, however, emphasize the role that joint Utah that agreement, our embodied in district courts play must in protecting and both state and constitutions, federal provides preserving integrity every aspect of the benefit of the doubt the accused. Pe- capital proceedings. riodically, some guilty of the go free as a result of high burden we have all im- {118 We hold that posed upon the prove State to our guilt. abused its discretion denying Menzies This allows us to be more certain only 60(b)(6) relief under rule of the Utah Rules guilty punished. are of Civil Procedure. Menzies is entitled to 60(b)(6) relief due to the extraordinary 1122 In cases where the penalty death cireumstances of Brass' ineffective possible, we have become increasingly more of counsel grossly negligent representa thorough in our appellate review. The moti- tion. In addition the district court erred in vation for this increased care comes in part application its of Salt Legal Lake from the ever-changing federal constitutional Defender Uno, (Utah Ass'n v. 1997), 932 P.2d 589 interpretations Supreme Court of the its discovery ruling must be supplemented. United States. One is left with impres- We reverse and remand for proceedings con sion that in time the death penalty, no matter sistent with opinion. how painlessly or righteously imposed, will 14. We note holding that our preclude does not 15. This order should not be confined to the docu- seeking State discovery of materials ments themselves, but should include, for exam- may ple, copies documents, litigation relevant future in this notes taken from documents, long so appropriate as the other testis are materials met. made from the documents the State. 10.15.1, which Penalty Guideline ABA Death Con- States United violative found be counsel post-conviction part that decision, provides Such high Court. by the stitution issues, whether litigate all to seek hotly "should comes, be will no doubt it when if and arguably that are presented, previously ver- not intent" "original of grounds debated further, that Men- and, assume deeply meritorious" by those "living constitution" sus the out for clearly eries innocence claim of Although I harbor zies' topic. concerned none of agree with I investigation. come not factual it does question, opinion propositions. whatsoever. play here into general utterly {123 to subscribe that Mr. enough I do It is my col- by offered discussion in the "framework" interests represent failed to penalty counsel, death when and other In this of failure leagues. A total matter. concern express law, get to universally cases, by is sufficient we provided is counsel penalty ultimate No extracting the relief. society post-conviction chanee at another capital aof convicted defendant in this case. from the is needed more absence by the usual troubled I am crime. consideration demonstrate attempt to of loved and their victims truly innocent

for inmates row death are selected who ones in- first in the crimes their for targets as Moreover, deeply troubled I am stance. require- seemingly endless exacting and 2006 UT re-review, analyze, and re- review, ments COMMISSION, TAX STATE UTAH proceed- in the defect any possible analyze Petitioner, so crimes guilty of found those by which ings imposed. penalty is the death hideous as a deterrent acts penalty

The death STEVENSON, Respondent. Eric death, It does for sure. put those No. 20050521. any- application any realistic have seem a sen- experience, our Based on one else. of Utah. Supreme Court only may not parole without of life tence expensive deterrent, less also but good Dec. guilty, state, miserable more society. the victims certain and more convicted those certain

124 I am not the rest against death-eligible offenses attention level of the extreme

us deserve being abso- name in the them extend their guilt and their lutely certain might be I it think death.

crime warrants im- simply the effort to abandon

better society. sup- I life-long removal pose expend might be an alternative

pose training and instead and resources

effort capital prevent children educating our place. in the first

crime Nonetheless, has once

{125 to those protections greater

again extended recognized than crimes capital convicted Court, finding Supreme States

by the United right to effective statutory proceedings. in state part on rely in colleagues addition, my

Case Details

Case Name: Menzies v. Galetka

Court Name: Utah Supreme Court

Date Published: Dec 15, 2006

Citation: 150 P.3d 480

Docket Number: 20040289

Court Abbreviation: Utah