Zimmerman v University of Utah and McMahon

The federal district court for Utah certified questions about state constitution based free speech claims and a limitations period question about when the period starts under Utah code 67-21-4. The Court answered only the question about the limitations period. It declined to answer the questions about whether Utah’s free speech cause is self-executing and if so what the elements are as the parties briefing was inadequate without any originalism analysis of whether legislation is necessary to implement the protection and Zimmerman offers no analysis as to what the elements of a Utah free speech claim are and University merely invites the court to import federal case law into Utah free speech law without analysis of why that is consistent with the original meaning of the Utah free speech clause or the common law in the area. As to the limitations trigger, the Court held that either notice of termination or the actual termination can trigger the 180 period in 21-4, that Zimmerman appears to allege both kinds of claim and whether the claim is barred is controlled by the evidence presented and whether the alleged damages were caused by the notice or the termination, and the court left determination of the causation issue to the federal district court.

State v Ellis

Ellis appealed his robbery and firearm convictions. The Court, unanimously and with three justices adding a concurrence, reversed the robbery conviction and affirmed the firearm conviction. It held the preliminary hearing testimony was not properly admitted under rule of Evidence 804 because the witness was not unavailable under 804(a)(4) as the district court improperly looked only to the day of trial instead of the correct term of art understanding of not being available for an extended period of time and the witnesses need to care for a premature baby was not demonstrated to make the witness unavailable for an extended period and the testimony was admissible under 804(b)(1) as the Court’s Goins precedent holds the incentive to cross examine is not the same at the preliminary hearing as at trial. It held admitting the testimony was prejudicial because the witness was the only person who saw the robber leave the scene in a car and without the testimony the jury would be left with doubts about an unknown witness providing license plate and other information and thus a new trial is required. It affirmed the firearm conviction holding any error in admitting evidence of a field test of suspected marijuana was harmless given the officers testimony that he identified the drug based on 40 years’ experience and training. Himonas, joined by Durrant and Judge Brown, added a concurrence arguing that the trial prosecutor characterized the preliminary hearing testimony as key evidence and finding harmlessness here would lessen the public’s respect for the judiciary and create perverse incentives for prosecutors.