Sunday, April 26, 2015
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LAW DAY 2015 Magna Carta: Symbol of Freedom Under Law ABOUT LAW DAY 2015
The first day of May was set aside in 1961 by a Joint Resolution of Congress as a “special day of celebration by the American people in appreciation of their liberties” and as an occasion for “re-dedication to the ideals of equality and justice under laws.” One of our most cherished national ideals, expressed so eloquently by Abraham Lincoln, is “government of the people, by the people, for the people.” It is a principle enshrined in our Nation’s founding documents, from the Declaration of Independence’s assurance that governments derive their powers from the consent of the governed, to the opening three words of the Preamble to the U.S. Constitution, “We the People.” Eight hundred years ago in a grassy meadow at Runnymede, England, King John and rebellious barons forged a shortlived practical solution to a political crisis of the highest ranks of feudal society. It was annulled 11 weeks later by Pope Innocence at King John’s urging, triggering a civil war. Subsequent kings reissued the great charter four times that century, maintaining the original protection of “the law of the land” rather than the law of any individual. Magna Carta was the first significant step in a process of safeguarding our constitutional freedoms that continues today.
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LAW DAY 2015: CELEBRATING OUR COMMITMENT TO THE RULE OF LAW MESSAGE FROM UTAH STATE BAR PRESIDENT, JAMES D. GILSON
On June 15, 1215, King John of England and a group of defiant noblemen forged an accord in an attempt to avert civil war. Although the agreement failed to prevent conflict, clauses in the document, eventually known as Magna Carta (the Great Charter), became the first significant step in a process of guaranteeing constitutional freedoms that continues today. Magna Carta was one of the earliest declarations of the fundamental principal of liberty that governments should be run in accordance with the rule of law, and not the law dictated by a tyrannical ruler. We cannot take for granted that under our system of government, everyone, including high government officials and those with wealth, are subject to the same laws as everyone else; and that all citizens, including those without resources or political connections, have the same legal rights under the law. American colonists embedded principles of Magna Carta into state laws and the Declaration of Independence, and the United States Constitution, including the Bill of Rights. The Fifth Amendment provision that “no person shall . . . be deprived of life, liberty, or property, without due process of law” descends from Magna Carta. The First Amendment protections of religious liberty, the Sixth Amendment right to speedy trial by jury, and the Eighth Amendment prohibition against cruel and unusual punishment, also indirectly descended from similar provisions in Magna Carta. During World War II, Great Britain loaned one of the original 1215 Magna Carta documents from the Lincoln Cathedral to the United States for. Magna Carta was joined-literally and symbolically--with our treasured founding documents, the Declaration of Independence and the Constitution, at Fort Knox for safekeeping during the war.
James D. Gilson
Utah State Bar President
Lawyer with Callister Nebeker & McCullough, in Salt Lake City The rule of law today still insists that laws govern our society, as opposed to arbitrary decisions by individual government officials. For this to work, the process by which our laws are enacted by the legislature, administered by the executive branch, and interpreted by
the courts, must be accessible and efficient and done in accordance with established law. Justice—the proper application of the rule of law— requires informed and ethical citizens and leaders who are committed to the bedrock principal that the law rules. If “We the People” neglect our
understanding and commitment to the rule of law, we risk having our essential rights eroded. We contribute to strengthening the rule of law by learning and complying with our legal obligations, working within our legal system for appropriate reforms, and enforcing our legal rights. Lawyers of the Utah State Bar are committed to support and defend the rule of law, and particularly support the independent judicial branch of our government. Keeping the judiciary independent of political or popular pressure, and of private interest, helps ensure that every person has a fair opportunity to make his or her case in court before an impartial judge, and ensures constitutional and other legal rights. Constitutional rights are protected in part through judicial interpretation of the law. The U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright secured the right to counsel for indigent criminal defendants unable to afford legal representation in felony cases. The decision was grounded in the Constitution’s Sixth Amendment, which guarantees criminal defendants “the assistance of counsel.” There is no constitutional guarantee of counsel in civil cases. Through its pro bono and modest means lawyer referral programs, the Utah State Bar is working hard to help more people have access to an attorney regardless of their financial status. See www.utahbar.org for more details. Lawyers of the Utah State Bar join with all Utahns in celebrating this significant 800th anniversary of Magna Carta. This anniversary reminds us of the significance of the rule of law and our rights to liberty and equality that are made possible through our constitutional representative democracy.
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Magna Carta: The Most Enduring Symbol of the Rule of Law BY SEAN TOOMEY, UTAH STATE BAR COMMUNICATIONS DIRECTOR
This iconic document was not intended to be a lasting declaration of legal principle. Instead it was a short-term effort to avert a civil war triggered by conflicts between the monarchy and other members of the mobility. But it included the first reference to what became known as due process of law, and so was a significant step in a process of guaranteeing freedoms that endures 800 years later. Sir Edward Coke interpreted it as a declaration of individual liberty in the conflict between The House of Commons and King Charles I, and it echoes in the U.S. Constitution and our Bill of Rights. Origins A fractious group of aristocrats presented to King John a list of remedies for their grievances: the Articles of the Barons. John had recently failed to reclaim French
lands he had inherited then lost, and had attempted to rebuild his coffers by demanding more scutage (a fee paid in lieu of military service which he levied often during his reign). The barons – who had just received the support of London – would only allow John to remain on the throne if he acceded to their demands. Lincolnshire’s Cardinal Stephen Langton, Archbishop of Canterbury – who supported the barons' non-violent means and who had recently returned from King John’s exile – was present as one of the king’s commissioners and helped write the final accord, the Charter of Runnymede. Clauses 38, 39, and 40 still resonate today: 38. No bailiff is in future to put anyone to law by his accusation alone, without trustworthy witnesses being brought in for this. 39. No free man is to be arrested,
King Edward I reissued Magna Carta and the Charter of the Forest in 1297 in an act known as the Confirmation of the Charters. Reproduced in Statutes of the Realm, 1810. Engraving. Law Library of Congress.
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Photo Credit: Donna Sokol, Law Library of Congress.
Signatures were not common during medieval times; it was more common to stamp a legal document using a wax seal. King John’s seal was not stamped directly onto the vellum of Magna Carta, but was attached by a cord (see below). Shown are two sides of one of King John’s seals
or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land. 40. We will not sell, or deny, or delay right or justice to anyone. None of theses clauses were included in the Articles of the Barons, and it is lost to history who introduced these concepts during the days of negotiations. Was it Cardinal Stephen Langton or William Marshal, 1st Earl of Pembroke? Marshal served four kings – Henry II, Richard I, John, and Henry III, and Langton eulogized him as the "best knight that ever lived." After the parties separated at Runnymede, the formal charter was
written in Latin by scribes working in the royal chancery and was sent to bishops, sheriffs, and other officials throughout the country. Four of those original documents survive; the one held by the Lincoln Cathedral is pictured [location]. Ten weeks later, at King John’s request, Pope Innocent III nullified the agreement. John responded by cutting a swath through Lincolnshire initiating a civil war to save his throne. Illness – some legends say food poisoning – ended his life in Newark Castle, residence of the bishops of Lincoln. Fighting continued in Lincoln, where Stephen Langton studied as a young cleric. Shortly after his death, John’s son, Henry III – then nine years old – ascended to the English throne. Henry III reissues the charter in 1216, sealed by the young king's
P. Vanderbanck after E. Lutterell. Portrait of King John, from the Compleat History of England, 1697. Engraving, 1680–1687. Prints and Photographs Division, Library of Congress
regent William Marshal, to again placate the barons who had align themselves with Prince Louis of France since the beginning of the civil war. The charter was reissued again at the end of the war with Prince Louis in 1217, when it formed part of the peace treaty agreed at Lambeth. At that point the charter was divided into the Charter of the Forest – the smaller of the two – and the Great Charter – Magna Carta. Henry III reissued his final version of Magna Carta in 1225, which was the first to become part of English law. The final reissue in 1297 by Edward I was similar to the 1225 version, in which the original clauses 39 and 40 were combined into a new clause: 29. No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go
against such a man or send against him save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice. The 1297 version remains in English statute today. Beginning in 1829, clauses were repealed and replaced by other statutes. Clause
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King John’s seal attached by a cord.
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29 is one of the three remaining, and it can be found in The National Archive’s database of current legislation. Further Developments in England A 1354 statute by Edward III repeats the guarantees laid out in clause 29, with some slight but important differences. Instead of protecting only free men – which meant landowners of a particular level of wealth and townspeople – this statute protects “Man of what Estate or Condition that he be.” And instead of guaranteeing protections according to “the law of the land,” substitutes the phrase “due process of the law,” the very first instance of this phrase in legal literature. This statute, including a scan of the original Latin version, can also be seen in the legislation database. Clause 29 received its classic form at the hands of the celebrated jurist Sir Edward Coke in his Second Part of the Institutes of the Laws of England, which was published after his death in 1634. At the heart of Coke’s interpretation of Magna Carta is the idea that the Great Charter was fundamental law, a law that no King can ever repeal. Coke’s perspective influenced the colonies of British America. Magna Carta was the first of a series of instruments in England with a special constitutional status, including the Petition of Right (1628), the Habeas Corpus Act (1679), and the Bill of Rights (1689). (There is no defining document that can be termed the “Constitution” in England because the political system there evolved over time, rather than changing suddenly in an event such as our revolution.) The first petition presented by the commons to the monarch at each new parliament is a request that the Magna Carta be retained. Inspiration for Americans During the American Revolution, Magna Carta inspired and justified action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen: rights guaranteed in Magna Carta. Colonists, including John Dickinson, James Otis, and Benjamin Franklin, objected to England’s Stamp Act’s provision that those who disobeyed could be tried in admiralty courts without a jury of their peers. Coke’s influence on Americans showed clearly when the Massachusetts Assembly reacted by declaring the Stamp Act “against the Magna Carta and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void.”
On the Lincoln Magna Carta’s first visit to the United States seventy-five years ago, British Ambassador Lord Lothian delivers it to Librarian of Congress Archibald MacLeish for safekeeping during World War II.
Lincoln Magna Carta
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It is no wonder that, as the colonists prepared for war and the resulting new country, they would look to Coke and Magna Carta for justification and inspiration. Lasting Legacy Magna Carta is the origin of many enduring constitutional principles: the rule of law, the right to a jury trial, the right to a speedy trial, freedom from unlawful imprisonment, protection from unlawful seizure of property, the theory of representative government, the principle of “no taxation without representation,” and most importantly, the concept of fundamental law – a law that not even the sovereign can alter. An Evolving Document As with Magna Carta, the U.S. Constitution is not static; it has been amended and interpreted through the years. This has allowed the Constitution to become the longest-lasting written constitution codified in a single document and a model for those penned by other nations. Constitutional rights continue to evolve through amendments to the U.S.
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Constitution; the most recent is the Twenty-seventh, which prohibits any law that increases or decreases the salary of members of Congress from taking effect until the start of the next set of terms of office for Representatives. It was submitted by Congress to the states for ratification on September 25, 1789, and became part of the Constitution in May 1992, a record-setting period of 202 years, seven months, and twelve days. Constitutional rights are also interpreted and applied by judicial review, through court decisions made daily throughout our nation on a case by case basis. Many of the images, photographs, and captions in this article are from the traveling exhibit, Magna Carta: Enduring Legacy 1215–2015, courtesy of the American Bar Association and the Library of Congress. All rights reserved.
Photo credit: Donna Sokol, Law Library of Congress.
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AN EVOLUTION OF RIGHTS
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BY E. KENT WINWARD, ATTORNEY, OGDEN, UTAH
T
hroughout this Law Day Special Edition, you will hear praises for Magna Carta as the seminal moment when enforceable individual rights were first recognized. The idea that has lasted eight hundred years is that certain individual rights must be protected -- by force if necessary. Certainly the scope of individual rights has expanded over the eight centuries since Magna Carta was first written. From a peace treaty protecting a very select few nobleman, the concept has expanded to include American colonists, slaves and, most recently, women. Not only has the protected class expanded, the protected rights have expanded. The original rights contemplated in Magna Carta were barebones rights to due process and legal equality. In the nascent United States, the rights had expanded to freedom of speech, freedom of religion, freedom of assembly, and other rights. A bloody civil war expanded the rights to the previously enslaved. By 1919, women were given the right to vote in the Constitution. None of these rights were included in Magna Carta. In fact, they would have been beyond the pale for the mace wielding barons fighting King John. Yet the idea that certain individual rights should prevail against power and authority was too grand of a concept and it has continued to expand. In 2000, a high court entered a ruling in Government v. Grootboom that the government had failed in protecting the constitutional right to housing and required a program for emergency housing. The court then followed up with a 2002 ruling that the government had failed in protecting the constitutional right to adequate medical care in its response to the HIV epidemic and ordered the government to take remedial measures. In case you are wondering why you aren’t familiar with these constitutional rulings, it is because they were from the Constitutional Court of South Africa. Section 26 of the Constitution of South Africa protects the right to have access to housing. Section 27 protects the right to health care services, sufficient food and water, and social security for those unable to work. India has similar provisions in its constitution, as does the European Social Charter. And who is responsible for the
FDR’s 1944 State of the Union: Social and Economic Rights of Americans
idea of a right to housing and a right to health care? An American President. The South African Constitution’s most direct ancestor is the 1948 United Nation’s Uniform Declaration of Human Rights. At the conclusion of World War II, and three years after her husband’s death, Eleanor Roosevelt chaired the Committee that drafted and sent out to the world the idea of basic fundamental human rights. Within those rights, the committee included with much the same verbiage, Franklin Roosevelt’s Second Bill of Rights. In the midst of World War II, during his 1944 State of the Union address, President Roosevelt proposed a Second Bill of Rights. Go to YouTube and type FDR/Second Bill of Rights and you can watch the president for yourself. Roosevelt proposed expanding our concept of individual rights to include the following: • The right to a useful and remunerative job. • The right to earn enough to provide adequate food and clothing and recreation. • The right of every family to a decent home.
•
The right to adequate medical care. • The right to adequate protection from the economic fears of old age, sickness, accident and unemployment. • The right to a good education. While never being incorporated as constitutional rights in the United States, this economic bill of rights has been protected extensively through legislation and government intervention in the United States, through continuing social security, minimum wage laws, fair housing regulations, and other similar legislative measures. Even our current healthcare debates hinge on how, or even if, an individual has a right to adequate medical care. Magna Carta has taught us one thing over its eight hundred year history: When governments choose to use their laws and the force of law to protect the individual rights of citizens, prosperity and peace are the end result. This is why we are celebrating the emergence of this fundamental belief, eight hundred years later.
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This We defend, for on This We Depend NATHAN DORN, LAW LIBRARY OF CONGRESS CURATOR OF RARE BOOKS
When the First Continental Congress met in September and October of 1774, it drafted a Declaration of Rights and Grievances to clarify the colonists’ position on the rights of British Americans. Claiming all the liberties and privileges of Englishmen under “the principles of the English constitution, and the several charters or compacts,” the delegates sought the preservation of their democratic self-government, freedom from taxation without representation, the right to a trial by a jury of ones countrymen, and their enjoyment of “life, liberty and property” free from arbitrary interference from the Crown. The Congress adopted the figure that illustrates the title page of the 1774 Journal of the Continental Congress as a symbol of unity: in a circle, twelve arms reach out to grasp a column which is topped by a liberty cap. The base of the column reads “Magna Carta.” The twelve arms represent the twelve colonies that sent delegates to the Congress (Georgia,
which would have been the thirteenth colony, did not participate). Around the border can be seen a slogan in Latin: “Hanc Tuemur, Hac Nitimur,” which means, “This we defend, this we lean upon,” referring to Magna Carta and the Rights of Englishmen.
Illustrating the title page of the 1774 imprint of the Journal of the Proceedings of the Congress is a symbol of unity adopted by the Congress: twelve arms reaching out to grasp a column which is topped by a liberty cap. The base of the column reads “Magna Carta.”
Do you have a legal problem? Not sure you can afford a lawyer? Now there is affordable legal help for people with modest incomes. The Modest Means Lawyer Referral program helps people with modest incomes and assets get legal help in Utah at discounted rates, helping to realize the Utah State Bar’s vision of a just legal system that is understood, valued, and accessible to all. The program is available to people who make too much to receive pro bono assistance, but up to $70,000 for a family of four. Depending on their financial situation, qualifying participants will be referred to a lawyer who charges up to $50 or $75 an hour – a significant savings from their regular rates. Visit the Bar’s website to see about qualification requirements.
Journal of the Proceedings of the Congress, held at Philadelphia, September 5, 1774. Philadelphia: Printed by William and Thomas Bradford, reprinted at the London Coffee-House, 1774. Rare Book and Special Collections Division, Library of Congress
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Importance of Laws BY JORDAN JOLLEY
Andrea Martinez Griffin When it comes to the importance of laws in our country regarding minorities, few have a greater appreciation than Andrea Martinez Griffin. And with Law Day just around the corner, Martinez Griffin reflects on the various roles laws play in our everyday lives. Martinez Griffith, who grew up in Salt Lake City and Orange County, California, has a deeply instilled passion for enhancing the advancement of minorities in the profession and the administration of justice. She graduated from UCLA in 1997 with a Bachelor of
Arts degree in history and a minor in women’s studies. After Martinez Griffin’s graduation, she found interest in AmeriCorps VISTA and became a volunteer with Big Brothers Big Sisters of Utah. She attended law school at the University of Utah and graduated in 2003. Today, Martinez Griffin works on adult felony prosecutions at the Salt Lake County District Attorney’s Office where she was formerly a Deputy District Attorney. Martinez Griffin worked at the Utah Juvenile Defender Attorney’s Office and represented children charged with delinquent acts in juvenile court. She is a member of the YWCA Parent Advisory Board, Minority Bar Association, and Women Lawyers of Utah. Additionally, she is a mentor in the Utah State Bar’s New Lawyer Training Program. With such a diverse background, Martinez Griffin’s roots grow deep in our state and country’s judicial system, in particular, the significance of the constitution. Martinez
Griffin knows and understands the great keystone which the Constitution is and that much of its foundation started with Magna Carta, written over 800 years ago. In fact, Martinez Griffin believes that “The Magna Carta provides the foundation for many of the constitutional protections that we currently enjoy today such as the right to have a trial by a jury of our peers.” She continues “even guilt on criminal cases be proven beyond a reasonable doubt, the right to a speedy trial, and arrests requiring probable cause [are constitutional protections we enjoy today].” Martinez Griffin also says that Magna Carta provides the basis for not only the United States Constitution but also how we function as a government and more importantly now, the courts function. The U.S. Constitution, which takes from the precedent of Magna Carta, provides a sense of order, guarantees, and protections for the country and its citizens. Additionally,
each state has created their own constitution as a result. As such, Magna Carta is a document which has allowed the rule of law to blossom and change. Martinez Griffin also served as a member of the Young Alumni Board of the University of Utah School of Law and the Third District Judicial Nominating Commission. The commission had eleven judicial vacancies to fill during the past two years, and she has been mindful and supportive of the need to add diversity to the bench. She has encouraged qualified minority candidates to apply for judicial vacancies and has ensured that every candidate is given fair consideration. All over the country and here in Utah, Magna Carta continues to encourage the progression of justice and the creation of laws. In the case of Martinez Griffin, Magna Carta serves as a basis by which she can continue to influence Utah’s local government for the benefit of its citizens and minorities.
“And Justice for All,” To No One Will We Sell, To No One Deny or Delay Right to Justice. The organization “And Justice for All” embodies the ideals of Magna Carta by engaging the community in creating a more just world. As the resource-raising umbrella organization for the state’s civil legal aid agencies – the Disability Law Center, Legal Aid Society of Salt Lake, and Utah Legal Services – “and justice for all” supports
programs that address: the basic needs of Utah’s most vulnerable citizens: ensuring to safety, stabilizing families, preventing homelessness, increasing income, and fostering selfsufficiency. For every $1 raised for legal advice and aid in Utah, the community receives $7.27 in benefits. You can support the efforts of “and justice
for all” by participating in the Law Day Run held at the SJ Quinney School of Law on May 16. Register for the family-friendly event at andjusticeforall.org/lawday-5k-run-walk.
Young lawyers interested in giving back to their community are encouraged to join the “and justice for all” Emerging Legal Leaders. More info can be found at andjusticeforall.org.
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Utah State Bar Awards Magna Carta Scholarships Regional Essay Candace Heki, of Syracuse Arts Academy, 8th - 10th Grade Regional Essay Joey Lucero of Joel P. Jensen Middle School, 8th - 10th Grade Regional Essay Madison Marshall of George Mueller Academy, 8th - 10th Grade Regional Essay Sha’uri Alonso of AMES, the Academy for Math, Engineering & Science, 11th 12th Grade Grand Prize Essay
Sha’uri Alonso
I
n conjunction with the traveling exhibit, Magna Carta: Enduring Legacy 1215–2015, and in partnership with Utah Commission on Civic and Character Education and Utah State Office of Education, Utah State Bar sponsored video and essay writing competitions statewide to help students understand the importance of the world’s most enduring symbol of the rule of law. Scholarships were awarded to: Joey Fielding of Syracuse Arts Academy, Grand Prize Video Aubrey Grasteit of Syracuse Arts Academy, 8th - 10th Grade Grand Prize Essay Taylor Bybee, of Syracuse Arts Academy, 8th - 10th Grade
Sha’uri Alonso is 18 years old and enjoys playing soccer on the varsity team of Cottonwood High School and the club team Sparta United. When she’s not on the field, Sha’uri’s nose is buried in a book or she’s doodling on her sketch pad. She also enjoys listening to and singing music (sometimes off-key) and spending time with her family. They enjoy travelling and experiencing different cultures. Sha’uri Alonso’s essay: ‘Great Charter’ Magna Carta was the first constitutional manuscript and one of the most significant documents on the path to democracy. Magna Carta was important to the Founding Fathers, and they incorporated many of the principles of Magna Carta as they established the United
States. They analyzed and understood this document’s part in guaranteeing basic rights and freedoms for the English. Before it had been created, monarchs ruled supreme. With Magna Carta, the king was not allowed to be above the law. Instead, he had to respect the rule of law and not abuse his position as king. The Great Charter was a clear inspiration for the founders because they included several of its provisions in the Bill of Rights. A key item that the Great Charter provided was the Habeas Corpus or the right to due process. Section 39 of Magna Carta contains the law of the land provision. King John protected the people from prosecution for crimes, unless done so according to the prevailing law. This provision made arbitrary prosecution illegal. In the Fifth Amendment to the Constitution, the founders incorporated a modern version of the same idea. The American Constitution prevents the national government from taking citizens’ “life, liberty or property,” except when done according to due process of law. This statement, known as the due process clause, provides Americans with assurance that legal action against them has to follow a familiar and understandable pattern. Another idea that originated from Magna Carta, and is now seen today in our constitution,
is what is known as trial by jury. Criminal prosecutions are a threat to citizens because of potential loss of freedom. King John promised in Magna Carta that he would not abuse his power by imprisoning them unless their peers found the punishment just. This declaration became part of the American Constitution. The Sixth Amendment ensures American citizens can receive a fair trial by jury in all criminal proceedings. The jury must be impartial and made up of fellow citizens living within the same district of the alleged crime. Cruel and unusual punishment was also mentioned in the Great Charter. In section 20 it informed the English that the royalty could not inflict cruel punishment against citizens. The fear was that monarchs would punish people so severely that it would become a means of depriving individuals of freedom. King John agreed that punishment should be in harmony with the gravity of the offense. The Eighth Amendment includes the same principle. Excessive bail amounts and excessive fines are unconstitutional under this amendment. The rights written in the Great Charter did not grant any new rights, but it did protect existing rights. It also included reasonable limits on taxes and a degree of guaranteed religious freedom. The Great Charter was a significant influence on the historical process that has resulted in the rule of constitutional law today.
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Basic Rights Americans Often Take for Granted BY JORDAN JOLLEY
Scott Young
As Law Day quickly approaches, Scott Young feels it is important to reflect on some of the most basic rights that we, as Americans, often take for granted. Young, a Salt Lake City lawyer who specializes in civil rights and government defense, commercial litigation, and insurance defense says “It’s all too common for us to have blind faith that if a problem arises in any of our lives, that there is a process for a fair resolution [the judicial system].” Young says “Things haven’t always been this way throughout history.” In fact, Young says that it is because of Magna Carta, which laid the foundation for our judicial system today, that we are able to have resolutions to our problems. When the Magna Carta was written, the king did whatever he
wanted, whenever he wanted. People weren’t able to wake up every day with the same assurances we have. “The Magna Carta was the biggest step in getting us where we are today” according to Young. Young, a Columbia University School of Law graduate, knows and understands Magna Carta and its influences nearly eight centuries after its creation. And with his detailed understanding, he believes in maintaining and improving our current laws. According to Young “Our society is an ever-changing one. Our legal system must adapt in order to keep up with the many changes.” He adds, “Of course, no process is perfect, but the courts, state legislature, etc. are good at keeping up with these changes.”
As an example, Young mentions the Utah Rules of Civil Procedure. The courts recognized that civil cases were bogged down in discovery and too many cases were not being heard. So, they adapted to make sure discovery was possible no matter the size or matter of the case. “This,” Young says, “is a great example of changing to better serve the community.” And speaking of serving the community, Young mentions that helping and serving the members of his community are what he loves most about his career. Young says that in the ten years he has been practicing, he’s seen how critical a resolution can be
for any given individual who faces a problem. Young attributes his motivation for his career to the relief and joy his clients feel and express to him upon finding resolutions in the various cases he represents. “I thoroughly enjoy being intellectually engaged. Legal issues are tough and the challenge of seeing different sides of an issue and coming up with a resolution between two parties is very rewarding,” states Young. As Young reflects on the influence of Magna Carta, he looks forward to the future and what he’d like to see realized in our community. Young optimistically says that he has a personal goal
to practice law with the highest degree of honor and honesty. “We need to be continually educating ourselves with what is going on in our society at large.” He goes on to say “Everything is changing so quickly and lawyers need to be at the front of change to understand the impact it has on our rights and the judicial system.” Lastly, Young believes that lawyers can’t sit in the office and do work, they need to interact with the community to understand the challenges that confront everyone. The real solutions require solutions for everyone and not just one person. It’s something which is easily overlooked but very important.
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12 | 04.26.2015 | Law Day
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Eight Hundred Years: From Magna Carta to an Independent Judiciary DON JUDGES IS PROFESSOR OF LAW AT THE UNIVERSITY OF ARKANSAS
Don Judges Chief Justice John Marshall famously wrote that the “government of the United States has been emphatically termed a government of laws, and not of men.” No one is above the law. Government may not take away a person’s liberty or property except under just laws properly enacted, openly published, and fairly applied. Anyone charged with a crime or a party to a civil suit is entitled to notice of the charge or claim and an opportunity to be heard by an impartial tribunal. These familiar principles of the rule of law have contributed to this nation’s remarkable achievement: Emergence from such tattered and humble origins into a successful and prosperous democracy in which individual rights are protected is possible only in a country where law matters a great deal.
The origins of these foundational principles, and the means to realize their promises and protections, surely warrant our careful attention at any time – especially this year. They found their first formal expression in our legal system eight hundred years ago this June on a meadow meeting-place alongside England’s River Thames called Runnymede. Then and there King John affixed the royal seal to an iconic document later entitled Magna Carta, or “Great Charter,” laying the cornerstone for what eventually would become today’s core constitutional guarantee that “no person . . . shall be deprived of life, liberty, or property without due process of law.” This anniversary is a fitting occasion to remember that if ours is to remain “a government of laws,” if we are to enjoy the rule of law’s shining benefits of liberty, justice, and prosperity, we must provide for its essential components. John Adams’s draft of the Massachusetts Constitution and Alexander Hamilton’s Federalist No. 78 both recognized that individual rights and liberties cannot be preserved without an independent judiciary, which the late Chief Justice Rehnquist described as the “crown jewel of our democracy.” The stakes are tangible. Numerous cross-national studies have found that actual protection of judicial independence, as opposed
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to mere paper guarantees, contributes substantially to such basic aspects of human welfare as economic development, political stability, and protection of individual rights. Judicial independence means judges have the latitude to decide cases according to their best analysis of facts and reading of the law without interference or fear of retribution for the outcome and, to maintain the separation of powers, have resources adequate to perform their task free from encroachments by the political branches. And judicial independence both supports and is supported by public confidence in the legal system, which in turn promotes compliance with law.
For judicial independence to promote the rule of law and public trust in the SOUTHERN UTAH’S PREMIER judiciary, it must BUSINESS AND ESTATE PLANNING LAW FIRM be tempered with accountability. This balance is not easy to strike. Judicial discretion is the cartilage in our legal system’s decisional joints: 435-628-3688 finding facts, www.snowjensen.com
interpreting and applying laws, managing proceedings, and, within law’s limits, doing justice, all require exercise of judgment. The balance in some states, however, has titled askew. In the name of accountability, some have seen money-saturated highly politicized elections and retributive outcome-driven non-retention votes. Such processes compromise judicial independence and, by treating judges as ordinary political officials, may influence them to see themselves that way rather than as the exceptional public officials the rule of law requires them to be. Utah is fortunate to have a merit-based judicial selection system, a non-partisan performance-based retention process, a robust Judicial Conduct Commission, and high-caliber judges on its trial courts, Court of Appeals, and Supreme Court. Its people deserve to have each strongly supported.
Law Day | 04.26.2015 | 13
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GET TO KNOW
My Career: A Beloved Hobby
BY JORDAN JOLLEY
Heather Thuet Though many working individuals see a career as a means to provide for themselves or a family, others see a career as a way of life or a beloved hobby. In the case of Heather Thuet this is especially true. Thuet, of Salt Lake City, is a local attorney and shareholder at Christensen & Jensen, whose areas of practice range from real estate where she represents entities and individuals in matters involving real estate, including negotiation, evaluation, sale, purchase, use, and valuation, to professional
A
fter 1300, Magna Carta was not reissued—physically produced and disseminated across the realm—but simply “confirmed.” English kings confirmed Magna Carta dozens of times in the centuries following the thirteenth, corroborating its status as an exemplary written charter of good governance and recognition of the lawful liberties of English subjects. There are multiple Magna Carta manuscripts that can claim to be “originals.” Why this
liability/medical malpractice/ construction defect where she represents health care providers, engineers, contractors, appraisers, home inspectors, real estate agents, and other professionals in malpractice and licensing/ disciplinary matters. Additionally, Thuet represents businesses and individuals in catastrophic personal injury trials. Thuet graduated from the University of Utah with honors and has since focused on cultivating her sheer fascination with the process of trials and helping individuals whether they are a plaintiff or a defendant. According to Thuet, “For me, it’s rewarding to be in front of a jury and tell the story of a plaintiff or defendant. I am the story teller and it’s up to me to tell even the most complicated story in a correct manner so that it is easily understood and digestible.” A personal story to which Thuet attributes her appreciation of her career draws from her medical malpractice history. Thuet had a client who dedicated her life to the healthcare industry, but was being sued for a death the client did not have control over. Thuet is so is a matter of historical circumstance, tradition, and scholarly conventions. In addition to the four 1215 first issues, there survive one from 1216 and four more each from 1217, 1225, and 1297. Just two of these seventeen are outside England, both dating to 1297. They are in the national capitals of Australia (Canberra) and the United States—the latter is publicly displayed at the National Archives in Washington, D.C. Magna Carta has been cited in over 170 U.S. Supreme
informed her client she would face financial ruin if she did not settle and were to lose the case at trial, but her client knew she had administered the best care possible with her 40 years of service and wanted a jury to decide. Thuet respected her client’s decision, and in the end, the jury was in favor of her client. Thuet remembers how relieved her client was and the weight that was lifted from her heavy heart. As Thuet remembers the most fond memories of her career, she also attributes much of our government’s judicial system to Magna Carta—a document written over 800 years ago. Why? Before Magna Carta, trial by ordeal had no place for attorneys and trial by water was common. Priests would immerse a defendant in water. If they sunk in the holy water, the accused was deemed innocent. If they thrashed and fought in the water, they were deemed guilty. Post Magna Carta, things changed dramatically. Thuet added “Could you imagine if disputes were handled this way today? Fortunately, our system has evolved into an orderly way of affording justice to both those who believe they have been harmed as well as the Court opinions, according to American University law professor Stephen Wermiel, who analyzed 224 years of U.S. Reports of Supreme Court decisions. Of these 170 cases, 28% concern due process of law; 13%, trial by jury; 8% concern how Magna Carta influenced American constitutionalism; 6% each treat antitrust matters and habeas corpus; 5% concern other civil rights and liberties; and 4% each treat cruel and unusual punishment and excessive fines.
party alleged to have caused the harm. The right to a jury trial is an integral component of that system. As a trial attorney, I have the privilege of telling my client’s story to a jury of their peers. On the whole, I’ve found that juries get it right and afford justice.” However, without Magna Carta, Thuet understands even the most advanced judicial systems in the world would be very different today. Thuet’s hopes and dreams are to further develop what Magna Carta started so long ago by finding methods to improve and grow our legal system. She hopes to speed up the legal process and find new ways to provide all individuals with better access to justice. Though many working individuals see a career as a means to provide for themselves or a family, others see a career as a way of life or a beloved hobby. In the case of Heather Thuet this is especially true. Thuet’s hopes and dreams are to further develop what the Magna Carta started so long ago by finding methods to improve and grow our legal system. She hopes to speed up the legal process and find new ways to provide all individuals with better access to justice.
Wikimedia Commons A 13th-century depiction of Henry III's coronation
14 | 04.26.2015 | Law Day
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Notes from a Place Very Far Away yet Very Close BY HERM OLSEN, UTAH STATE BAR COMMISSIONER AND ATTORNEY AT HILLYARD, ANDERSON & OLSEN
H
erm Olsen’s father fought in the South Pacific on the Destroyer U.S.S. Gatling. I'm sitting in Palau, a delightful little country nestled in the deep Pacific just beyond Yap. It was the scene of a ferocious land/sea battle between the Japanese and the Americans in 1944. The Japanese wanted to win the war for their Emperor; we wanted to punish them for the Pearl Harbor attack. We wanted to defeat the Nazis and to sweep Japanese militarists off the map. There are many ships and planes still at the bottom of the beautiful blue lagoons in this idyllic island paradise. And there are still many men entombed in those ships and planes, not to mention in the caves and beaches of this small Island Nation. Japanese Emperor Akihito and Empress Michiko visited the island battle sites in Palau and Peleliu on
April 8 and 9, 2015 to commemorate the 70th anniversary of the end of WWII. An estimated 10,000 Japanese soldiers died in fierce combat with the U.S. military on Peleliu alone. Because the Japanese fought on even in the face of helpless odds, only 216 soldiers surrendered. Several thousand dug into more than 200 caves where they were buried by U.S. heavy equipment when they refused to surrender. Two Japanese soldiers survived the battle, although they hid on the island until 1947, when they were finally convinced the war had ended. Palau was a trust territory until 1994, when independence was granted. The United States governed the islands for 50 years, and, for the most part, deeded the Palauns its judicial system. They have the same three branches of government and utilize a curious mix of both U.S. and Palaun law.
U.S. troops of the First Marine Division storm ashore from beached Alligator vehicles at Peleliu Island, Palau on Sept. 20, 1944 during World War II
So far, I am impressed with the dedication and diligence of the people, and mostly by their almost pathologic friendliness. They appreciate us, and our values. I found it curious to compare the sagebrush mentality of the City Council of La Verkin, Utah, which passed a "United Nations Free Zone Ordinance" that banned the international body from town and the City Council of Spring City, Utah, which passed a mandatory gun ownership recommendation, with Palau, where it is illegal to own a firearm of any kind, unless you're a police officer. There is an extremely low crime rate in Palau, and no death by gun in anyone's memory. But when crime does occur, jury trial is not permitted unless the defendant
is faced with 12 years or more in prison. Virtually all crimes are handled by one of five judges. Today I watched the closing arguments of only the fifth ever jury trial in Palau. The defense attorney (a bit rusty in arguing to the jury, as might be imagined) intoned the favorite (and cherished) notions of American jurisprudence, including burden of proof and reasonable doubt. We all await the outcome of the jury. But here's where it gets curious: if you are convicted of attempting to bring a gun into the country, you will serve a minimum of 15 years in prison without the
possibility of parole. And that isn't because the prosecutors are vicious or the judge cold-hearted. It's because the Palau Constitution mandates the punishment, totally eliminating judicial discretion. So that's nearAmerican justice from the other side of the world. Update: The jury returned with a “Not Guilty” verdict, the first in the history of the nation. Olsen conferred briefly with the defense counsel, an older Palauan named Oldiais, who thought it was the new concept of reasonable doubt, that swayed the jury.
Present day view of Pacific Ocean from the top of a Lighthouse, Palaui Island, Cagayan, Philippines.
Law Day | 04.26.2015 | 15
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SALT LAKE COUNTY BAR’S ART & THE LAW AWARD WINNERS Salt Lake County Bar’s Art & the Law award winner Jackson Price and Kate Altman, 4th Graders at Rowland Hall Lower School; teacher Kathryn Czarnecki.
1st place elementary award winner Jack Vitek & Maddie Carlin, 4th Graders at Rowland Hall Lower School; teacher Kathryn Czarnecki.
2nd place elementary award winner Camden McEwen, 5th Grader at Herriman Elementary; teacher Joan Richards
3rd place elementary award winner Jackson Price & Kate Altman, 4th Graders at Rowland Hall Lower School; teacher Kathryn Czarnecki. Best in Show award winner Quinn Yeates, 4th Graders at Rowland Hall Lower School; teacher
3rd place middle school award winner Osman Kassim, Northwest Middle School; teacher Jillana Butler. Osman Kassim: There are laws against people being arrested without cause. Some of the laws we have today are based on Principles found in Magna
Kathryn Czarnecki.
Carta.
CONTINUED ON PAGE 16
16 | 04.26.2015 | Law Day
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MAGNA CARTA MAGNUS DEFECTUS
Jeff T. Nielsen, Esq., Associate Professor, David Eccles School of Business, University of Utah
On June 15, 1215, at Runnymede, the 48 year-old King John pressed his royal seal to a document called the ‘Articles of the Barons’ that history gives a loftier name: Magna Carta. The charter, an attempt to broker peace with a group of rebellious barons who had renounced their feudal ties to John, would be almost immediately ignored by both sides and annulled by the Pope shortly thereafter. Magna Carta was yet another setback for John, another abject disaster in a
Timothy R. Pack, Associate Attorney, Clyde Snow & Sessions
life remembered in poetry and prose for its failures. He had badly bungled the opportunity his father gave him in Ireland, had ruined his first marriage, betrayed his father and then later his brother Richard, was rumored to have ordered the murder of his nephew, had been excommunicated, and had lost almost all of the vast territory in France he inherited upon his ascension to the throne. His brother Richard, the larger than life model of chivalry, the ruthless crusader and military genius, and favorite of his nearly
mythic mother, Eleanor of Aquitaine, they called ‘Lionheart.’ John they called ‘Lackland’ or sometimes, ‘Softsword.’ In 1215, some months before Magna Carta, John too had declared his intent to go on crusade. It never happened. Add it to the list of failures. He would be dead the next year, from dysentery. The thing is, John never should have been king in the first place. He was fifth of five brothers, small and temperamental and prone to tantrums and his elder brothers were characters out of the ages. True, the eldest, William, died at the age of three, but Henry, called ‘The Young King,’ Richard, and Geoffrey were all strapping, soldiering, thunderers of young men, clearly made in the classic Plantagenet mold. John, by contrast, couldn’t have struck anyone as very likely to be remembered by history. But Henry died of
dysentery, Geoffrey was trampled by a horse, and Richard killed by a crossbow bolt shot by a boy. Most of what we remember Magna Carta for—Habeas Corpus, Trial by Jury, and the rest—was introduced long before Magna Carta and sculpted into being by John’s father. But, at the time, who could blame anyone for thinking Magna Carta simply another of John’s pathetic reversals? Who could imagine that Magna Carta through the centuries would accrue a patina of import it almost certainly never had for John in his desperation at Runnymede? But accrue it did. By the late renaissance, Magna Carta had acquired for itself something of the special halo it wears today. By the time of the American Revolution, it was regarded as the very wellspring of the rule of law, as the source from which the entire English Common Law sprang.
Accurate or inaccurate, Magna Carta’s importance continues to endure today as an “Icon of Liberty.” And, while the document itself was barely worth the parchment it was written on in the minds of those whom it was meant to bring to accord, and though it was watered down by subsequent reissues, and annulled on a couple of occasions by the Church, and though nearly all of it has been explicitly repealed by Parliament, that strange seed practically exploded into the tree from which the fruit of AngloAmerican civilization is continually plucked. Sometimes great things turn out great in ways no one expects or designs. Sometimes great things are midwifed by deeply flawed human beings. Sometimes great things are born of failure.
CONTINUED FROM PAGE 15 2nd place middle school award winner Daniel Lerma, Northwest Middle School; teacher Jillana Butler
1st place middle school award winner Annie Than, Northwest Middle School; teacher Jillana Butler. Annie Than: Beginning with Magna Carta, laws have been passed to protect rights and freedoms of individuals. The key in my painting represents different laws. The locks represent freedom.