law day 2015

Sunday, April 26, 2015

LAW DAY 2015Magna Carta: Symbol of Freedom Under Law

ABOUT LAW DAY 2015The first day of May was set aside in

1961 by a Joint Resolution of Congress as a“special day of celebration by the Americanpeople in appreciation of their liberties”and as an occasion for “re-dedication to theideals of equality and justice under laws.”

One of our most cherished nationalideals, expressed so eloquently by AbrahamLincoln, is “government of the people, bythe people, for the people.” It is a principleenshrined in our Nation’s foundingdocuments, from the Declaration ofIndependence’s assurance that governmentsderive their powers from the consent of thegoverned, to the opening three words of thePreamble to the U.S. Constitution, “We thePeople.”

Eight hundred years ago in a grassymeadow at Runnymede, England, KingJohn and rebellious barons forged a short-lived practical solution to a political crisisof the highest ranks of feudal society. It wasannulled 11 weeks later by Pope Innocenceat King John’s urging, triggering a civil war.Subsequent kings reissued the great charterfour times that century, maintaining theoriginal protection of “the law of the land”rather than the law of any individual.

Magna Carta was the first significantstep in a process of safeguarding ourconstitutional freedoms that continuestoday.

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LAW DAY 2015: CELEBRATING OURCOMMITMENT TO THE RULE OF LAW

On June 15, 1215, King Johnof England and a group of defiantnoblemen forged an accord in anattempt to avert civil war. Althoughthe agreement failed to preventconflict, clauses in the document,eventually known as Magna Carta(the Great Charter), became thefirst significant step in a process ofguaranteeing constitutional freedomsthat continues today.

Magna Carta was one ofthe earliest declarations of thefundamental principal of libertythat governments should be run inaccordance with the rule of law, andnot the law dictated by a tyrannicalruler. We cannot take for grantedthat under our system of government,everyone, including high governmentofficials and those with wealth, aresubject to the same laws as everyoneelse; and that all citizens, includingthose without resources or politicalconnections, have the same legalrights under the law.

American colonists embeddedprinciples of Magna Carta intostate laws and the Declaration ofIndependence, and the United StatesConstitution, including the Billof Rights. The Fifth Amendmentprovision that “no person shall . . . bedeprived of life, liberty, or property,without due process of law” descendsfrom Magna Carta.

The First Amendment protectionsof religious liberty, the SixthAmendment right to speedy trial byjury, and the Eighth Amendmentprohibition against cruel andunusual punishment, also indirectlydescended from similar provisions inMagna Carta.

During World War II, GreatBritain loaned one of the original1215 Magna Carta documents fromthe Lincoln Cathedral to the UnitedStates for. Magna Carta was joined--literally and symbolically--with ourtreasured founding documents, theDeclaration of Independence andthe Constitution, at Fort Knox forsafekeeping during the war.

The rule of law today still insiststhat laws govern our society, asopposed to arbitrary decisions byindividual government officials.For this to work, the process bywhich our laws are enacted by thelegislature, administered by theexecutive branch, and interpreted by

the courts, must be accessible andefficient and done in accordance withestablished law. Justice—the properapplication of the rule of law—requires informed and ethical citizensand leaders who are committed to thebedrock principal that the law rules.

If “We the People” neglect our

understanding and commitmentto the rule of law, we risk havingour essential rights eroded. Wecontribute to strengthening the ruleof law by learning and complyingwith our legal obligations, workingwithin our legal system forappropriate reforms, and enforcingour legal rights.

Lawyers of the Utah State Bar arecommitted to support and defend therule of law, and particularly supportthe independent judicial branchof our government. Keeping thejudiciary independent of politicalor popular pressure, and of privateinterest, helps ensure that everyperson has a fair opportunity tomake his or her case in court beforean impartial judge, and ensuresconstitutional and other legal rights.

Constitutional rights areprotected in part through judicialinterpretation of the law. The U.S.Supreme Court’s 1963 decisionin Gideon v. Wainwright securedthe right to counsel for indigentcriminal defendants unable toafford legal representation infelony cases. The decision wasgrounded in the Constitution’s SixthAmendment, which guaranteescriminal defendants “the assistance ofcounsel.”

There is no constitutionalguarantee of counsel in civil cases.Through its pro bono and modestmeans lawyer referral programs, theUtah State Bar is working hard tohelp more people have access to anattorney regardless of their financialstatus. See www.utahbar.org formore details.

Lawyers of the Utah State Barjoin with all Utahns in celebratingthis significant 800th anniversaryof Magna Carta. This anniversaryreminds us of the significance ofthe rule of law and our rights toliberty and equality that are madepossible through our constitutionalrepresentative democracy.

James D. GilsonUtah State Bar PresidentLawyer with Callister Nebeker & McCullough, in Salt Lake City

MESSAGE FROM UTAH STATE BAR PRESIDENT, JAMES D. GILSON

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Magna Carta: The Most EnduringSymbol of the Rule of LawBY SEAN TOOMEY, UTAH STATE BAR COMMUNICATIONS DIRECTOR

King Edward I reissued Magna Carta and the Charter of the Forest in 1297 in an act knownas the Confirmation of the Charters. Reproduced in Statutes of the Realm, 1810. Engraving.Law Library of Congress.

This iconic document was notintended to be a lasting declarationof legal principle. Instead it was ashort-term effort to avert a civil wartriggered by conflicts between themonarchy and other members ofthe mobility. But it included the firstreference to what became knownas due process of law, and so wasa significant step in a process ofguaranteeing freedoms that endures800 years later. Sir Edward Cokeinterpreted it as a declaration ofindividual liberty in the conflictbetween The House of Commonsand King Charles I, and it echoes inthe U.S. Constitution and our Bill ofRights.

OriginsA fractious group of aristocrats

presented to King John a list ofremedies for their grievances: theArticles of the Barons. John hadrecently failed to reclaim French

lands he had inherited then lost,and had attempted to rebuild hiscoffers by demanding more scutage(a fee paid in lieu of military servicewhich he levied often during hisreign). The barons – who had justreceived the support of London –would only allow John to remainon the throne if he acceded to theirdemands. Lincolnshire’s CardinalStephen Langton, Archbishop ofCanterbury – who supported thebarons' non-violent means and whohad recently returned from KingJohn’s exile – was present as one ofthe king’s commissioners and helpedwrite the final accord, the Charter ofRunnymede. Clauses 38, 39, and 40still resonate today:

38. No bailiff is in future to putanyone to law by his accusationalone, without trustworthy witnessesbeing brought in for this.

39. No free man is to be arrested,

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Signatures were not common during medieval times; it was more common to stamp a legal document using a waxseal. King John’s seal was not stamped directly onto the vellum of Magna Carta, but was attached by a cord (seebelow). Shown are two sides of one of King John’s seals

Photo Credit: Donna Sokol, Law Library of Congress. P. Vanderbanck after E. Lutterell. Portrait of KingJohn, from the Compleat History of England, 1697.Engraving, 1680–1687. Prints and PhotographsDivision, Library of Congress

or imprisoned, or disseised, oroutlawed, or exiled, or in any otherway ruined, nor will we go againsthim or send against him, except bythe lawful judgment of his peers orby the law of the land.

40. We will not sell, or deny, ordelay right or justice to anyone.

None of theses clauses wereincluded in the Articles of theBarons, and it is lost to historywho introduced these conceptsduring the days of negotiations.Was it Cardinal Stephen Langtonor William Marshal, 1st Earlof Pembroke? Marshal servedfour kings – Henry II, Richard I,John, and Henry III, and Langtoneulogized him as the "best knightthat ever lived."

After the parties separated atRunnymede, the formal charter was

written in Latin by scribes workingin the royal chancery and wassent to bishops, sheriffs, and otherofficials throughout the country.Four of those original documentssurvive; the one held by the LincolnCathedral is pictured [location].

Ten weeks later, at King John’srequest, Pope Innocent III nullifiedthe agreement. John responded bycutting a swath through Lincolnshireinitiating a civil war to save histhrone. Illness – some legends sayfood poisoning – ended his lifein Newark Castle, residence ofthe bishops of Lincoln. Fightingcontinued in Lincoln, where StephenLangton 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 charterin 1216, sealed by the young king's

regent William Marshal, to againplacate the barons who had alignthemselves with Prince Louis ofFrance since the beginning of thecivil war. The charter was reissuedagain at the end of the war withPrince Louis in 1217, when itformed part of the peace treatyagreed at Lambeth. At that point thecharter was divided into the Charterof the Forest – the smallerof the two – and the GreatCharter – Magna Carta. HenryIII reissued his final version ofMagna Carta in 1225, whichwas the first to become part ofEnglish law.

The final reissue in 1297by Edward I was similar tothe 1225 version, in which theoriginal clauses 39 and 40 werecombined into a new clause:

29. No freeman is tobe taken orimprisoned ordisseised of hisfree tenement orof his libertiesor free customs,or outlawed orexiled or in anyway ruined,nor will we go

against such a man or send againsthim save by lawful judgment of hispeers or by the law of the land. Tono-one will we sell or deny or delayright or justice.

The 1297 version remains inEnglish statute today. Beginningin 1829, clauses were repealed andreplaced by other statutes. Clause

King John’s seal attached by a cord.

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On the Lincoln Magna Carta’s first visit to the United States seventy-five years ago, British Ambassador LordLothian delivers it to Librarian of Congress Archibald MacLeish for safekeeping during World War II.

Lincoln Magna Carta

29 is one of the three remaining, and itcan be found in The National Archive’sdatabase of current legislation.

Further Developments in EnglandA 1354 statute by Edward III repeats

the guarantees laid out in clause 29, withsome slight but important differences.Instead of protecting only free men –which meant landowners of a particularlevel of wealth and townspeople – thisstatute protects “Man of what Estateor Condition that he be.” And insteadof guaranteeing protections accordingto “the law of the land,” substitutes thephrase “due process of the law,” thevery first instance of this phrase in legalliterature. This statute, including a scanof the original Latin version, can also beseen in the legislation database.

Clause 29 received its classic format the hands of the celebrated jurist SirEdward Coke in his Second Part of theInstitutes of the Laws of England, whichwas published after his death in 1634.At the heart of Coke’s interpretation ofMagna Carta is the idea that the GreatCharter was fundamental law, a law thatno King can ever repeal. Coke’s perspectiveinfluenced the colonies of British America.

Magna Carta was the first of a seriesof instruments in England with a specialconstitutional status, including the Petitionof Right (1628), the Habeas Corpus Act(1679), and the Bill of Rights (1689).(There is no defining document that canbe termed the “Constitution” in Englandbecause the political system there evolvedover time, rather than changing suddenlyin an event such as our revolution.) Thefirst petition presented by the commons tothe monarch at each new parliament is arequest that the Magna Carta be retained.

Inspiration for AmericansDuring the American Revolution,

Magna Carta inspired and justified actionin liberty’s defense. The colonists believedthey were entitled to the same rights asEnglishmen: rights guaranteed in MagnaCarta.

Colonists, including John Dickinson,James Otis, and Benjamin Franklin,objected to England’s Stamp Act’s provisionthat those who disobeyed could be triedin admiralty courts without a jury of theirpeers. Coke’s influence on Americansshowed clearly when the MassachusettsAssembly reacted by declaring theStamp Act “against the Magna Carta andthe natural rights of Englishmen, andtherefore, according to Lord Coke, nulland void.”


It is no wonder that, asthe colonists prepared forwar and the resulting newcountry, they would look toCoke and Magna Carta forjustification and inspiration.

Lasting LegacyMagna Carta is the

origin of many enduringconstitutional principles: therule of law, the right to a jurytrial, the right to a speedytrial, freedom from unlawfulimprisonment, protectionfrom unlawful seizure ofproperty, the theory ofrepresentative government,the principle of “no taxationwithout representation,” andmost importantly, the conceptof fundamental law – a lawthat not even the sovereigncan alter.

An Evolving DocumentAs with Magna Carta,

the U.S. Constitution is notstatic; it has been amendedand interpreted throughthe years. This has allowedthe Constitution to becomethe longest-lasting writtenconstitution codified in asingle document and a modelfor those penned by othernations.

Constitutional rightscontinue to evolve throughamendments to the U.S.

Constitution; the mostrecent is the Twenty-seventh,which prohibits any lawthat increases or decreasesthe salary of membersof Congress from takingeffect until the start of thenext set of terms of officefor Representatives. It wassubmitted by Congress tothe states for ratificationon September 25, 1789,and became part of theConstitution in May 1992, arecord-setting period of 202years, seven months, andtwelve days.

Constitutional rights arealso interpreted and appliedby judicial review, throughcourt decisions made dailythroughout our nation on acase by case basis.

Many of the images,photographs, and captionsin this article are from thetraveling exhibit, MagnaCarta: Enduring Legacy1215–2015, courtesy of theAmerican Bar Association andthe Library of Congress. Allrights reserved.

Photo credit: Donna Sokol, Law Library of Congress.


Throughout this Law DaySpecial Edition, you will hearpraises for Magna Carta asthe seminal moment when

enforceable individual rights were firstrecognized. The idea that has lasted eighthundred years is that certain individualrights must be protected -- by force ifnecessary.

Certainly the scope of individual rightshas expanded over the eight centuriessince Magna Carta was first written. Froma peace treaty protecting a very select fewnobleman, the concept has expanded toinclude American colonists, slaves and,most recently, women.

Not only has the protected classexpanded, the protected rightshave expanded. The original rightscontemplated in Magna Carta were bare-bones rights to due process and legalequality. In the nascent United States,the rights had expanded to freedom ofspeech, freedom of religion, freedom ofassembly, and other rights. A bloody civilwar expanded the rights to the previouslyenslaved. By 1919, women were given theright to vote in the Constitution. None ofthese rights were included in Magna Carta.In fact, they would have been beyond thepale for the mace wielding barons fightingKing John. Yet the idea that certainindividual rights should prevail againstpower and authority was too grand of aconcept and it has continued to expand.

In 2000, a high court entered a rulingin Government v. Grootboom that thegovernment had failed in protectingthe constitutional right to housing andrequired a program for emergencyhousing. The court then followed up witha 2002 ruling that the government hadfailed in protecting the constitutional rightto adequate medical care in its responseto the HIV epidemic and ordered thegovernment to take remedial measures.

In case you are wondering why youaren’t familiar with these constitutionalrulings, it is because they were from theConstitutional Court of South Africa.Section 26 of the Constitution of SouthAfrica protects the right to have access tohousing. Section 27 protects the right tohealth care services, sufficient food andwater, and social security for those unableto work. India has similar provisions in itsconstitution, as does the European SocialCharter. And who is responsible for the

idea of a right to housing and a right tohealth care? An American President.

The South African Constitution’s mostdirect ancestor is the 1948 United Nation’sUniform Declaration of Human Rights.At the conclusion of World War II, andthree years after her husband’s death,Eleanor Roosevelt chaired the Committeethat drafted and sent out to the worldthe idea of basic fundamental humanrights. Within those rights, the committeeincluded with much the same verbiage,Franklin Roosevelt’s Second Bill of Rights.

In the midst of World War II, duringhis 1944 State of the Union address,President Roosevelt proposed a SecondBill of Rights. Go to YouTube and typeFDR/Second Bill of Rights and you canwatch the president for yourself. Rooseveltproposed expanding our concept ofindividual rights to include the following:

• The right to a useful andremunerative job.

• The right to earn enough toprovide adequate food andclothing and recreation.

• The right of every family to adecent home.

• The right to adequate medicalcare.

• The right to adequate protectionfrom the economic fears ofold age, sickness, accident andunemployment.

• The right to a good education.While never being incorporated as

constitutional rights in the United States,this economic bill of rights has beenprotected extensively through legislationand government intervention in theUnited States, through continuing socialsecurity, minimum wage laws, fair housingregulations, and other similar legislativemeasures. Even our current healthcaredebates hinge on how, or even if, anindividual has a right to adequate medicalcare.

Magna Carta has taught us one thingover its eight hundred year history:When governments choose to use theirlaws and the force of law to protect theindividual rights of citizens, prosperityand peace are the end result. This is whywe are celebrating the emergence of thisfundamental belief, eight hundred yearslater.

AN EVOLUTION OF RIGHTSBY E. KENT WINWARD, ATTORNEY, OGDEN, UTAH

FDR’s 1944 State of the Union: Social and Economic Rights of Americans


When the First ContinentalCongress met in September andOctober of 1774, it drafted aDeclaration of Rights and Grievancesto clarify the colonists’ positionon the rights of British Americans.Claiming all the liberties andprivileges of Englishmen under “theprinciples of the English constitution,and the several charters or compacts,”the delegates sought the preservationof their democratic self-government,freedom from taxation withoutrepresentation, the right to a trialby a jury of ones countrymen, andtheir enjoyment of “life, libertyand property” free from arbitraryinterference from the Crown.

The Congress adopted the figurethat illustrates the title page of the1774 Journal of the ContinentalCongress as a symbol of unity: ina circle, twelve arms reach out tograsp a column which is topped by aliberty cap. The base of the columnreads “Magna Carta.” The twelve armsrepresent the twelve colonies that sentdelegates to the Congress (Georgia,

which would have been the thirteenthcolony, did not participate). Aroundthe border can be seen a slogan inLatin: “Hanc Tuemur, Hac Nitimur,”which means, “This we defend, thiswe lean upon,” referring to MagnaCarta and the Rights of Englishmen.

This We defend, for on This We DependNATHAN DORN, LAW LIBRARY OF CONGRESS CURATOR OF RARE BOOKS

Illustrating the title page of the 1774 imprint of theJournal of the Proceedings of the Congress is a symbol ofunity adopted by the Congress: twelve arms reaching outto grasp a column which is topped by a liberty cap. Thebase of the column reads “Magna Carta.”

Journal of the Proceedings of the Congress, heldat Philadelphia, September 5, 1774. Philadelphia:Printed by William and Thomas Bradford, reprintedat the London Coffee-House, 1774. Rare Book andSpecial Collections Division, Library of Congress

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Visit the Bar’s website to see about qualification requirements.


Importance of Laws

The organization“And Justice for All”embodies the idealsof Magna Cartaby engaging thecommunity in creatinga more just world. Asthe resource-raisingumbrella organizationfor the state’s civillegal aid agencies – theDisability Law Center,Legal Aid Society ofSalt Lake, and UtahLegal Services – “andjustice for all” supports

programs that address:the basic needs ofUtah’s most vulnerablecitizens: ensuringto safety, stabilizingfamilies, preventinghomelessness,increasing income,and fostering self-sufficiency. For every $1raised for legal adviceand aid in Utah, thecommunity receives$7.27 in benefits.

You can support theefforts of “and justice

for all” by participatingin the Law Day Runheld at the SJ QuinneySchool of Law on May16. Register for thefamily-friendly event atandjusticeforall.org/law-day-5k-run-walk.

Young lawyersinterested in giving backto their communityare encouraged to jointhe “and justice for all”Emerging Legal Leaders.More info can be foundat andjusticeforall.org.

“And Justice for All,” To No One Will We Sell, ToNo One Deny or Delay Right to Justice.

GET TO KNOW

When it comes to theimportance of laws in ourcountry regarding minorities,few have a greater appreciationthan Andrea Martinez Griffin.And with Law Day just aroundthe corner, Martinez Griffinreflects on the various roleslaws play in our everyday lives.

Martinez Griffith, whogrew up in Salt Lake City andOrange County, California, hasa deeply instilled passion forenhancing the advancementof minorities in the professionand the administration ofjustice.She graduated from UCLAin 1997 with a Bachelor of

Arts degree in history anda minor in women’s studies.After Martinez Griffin’sgraduation, she found interestin AmeriCorps VISTA andbecame a volunteer with BigBrothers Big Sisters of Utah.She attended law school atthe University of Utah andgraduated in 2003.

Today, Martinez Griffinworks on adult felonyprosecutions at the Salt LakeCounty District Attorney’sOffice where she was formerlya Deputy District Attorney.Martinez Griffin worked atthe Utah Juvenile DefenderAttorney’s Office andrepresented children chargedwith delinquent acts in juvenilecourt. She is a member of theYWCA Parent Advisory Board,Minority Bar Association,and Women Lawyers of Utah.Additionally, she is a mentorin the Utah State Bar’s NewLawyer Training Program.

With such a diversebackground, Martinez Griffin’sroots grow deep in our stateand country’s judicial system,in particular, the significanceof the constitution. Martinez

Griffin knows and understandsthe great keystone which theConstitution is and that muchof its foundation started withMagna Carta, written over 800years ago.

In fact, Martinez Griffinbelieves that “The Magna Cartaprovides the foundation formany of the constitutionalprotections that we currentlyenjoy today such as the rightto have a trial by a jury ofour peers.” She continues“even guilt on criminalcases be proven beyond areasonable doubt, the rightto a speedy trial, and arrestsrequiring probable cause [areconstitutional protections weenjoy today].”

Martinez Griffin also saysthat Magna Carta providesthe basis for not only theUnited States Constitutionbut also how we functionas a government and moreimportantly now, the courtsfunction. The U.S. Constitution,which takes from the precedentof Magna Carta, provides asense of order, guarantees, andprotections for the countryand its citizens. Additionally,

each state has created theirown constitution as a result.As such, Magna Carta is adocument which has allowedthe rule of law to blossom andchange.

Martinez Griffin also servedas a member of the YoungAlumni Board of the Universityof Utah School of Law andthe Third District JudicialNominating Commission.The commission had elevenjudicial vacancies to fillduring the past two years,and she has been mindful andsupportive of the need to adddiversity to the bench. She hasencouraged qualified minoritycandidates to apply for judicialvacancies and has ensured thatevery candidate is given fairconsideration.

All over the country andhere in Utah, Magna Cartacontinues to encourage theprogression of justice and thecreation of laws. In the caseof Martinez Griffin, MagnaCarta serves as a basis by whichshe can continue to influenceUtah’s local government forthe benefit of its citizens andminorities.

Andrea Martinez Griffin

BY JORDAN JOLLEY


Utah State Bar Awards Magna Carta Scholarships

In conjunction withthe traveling exhibit,Magna Carta: EnduringLegacy 1215–2015, and

in partnership with UtahCommission on Civic andCharacter Education and UtahState Office of Education, UtahState Bar sponsored video andessay writing competitionsstatewide to help studentsunderstand the importanceof the world’s most enduringsymbol of the rule of law.

Scholarships were awardedto:Joey Fielding of Syracuse ArtsAcademy, Grand Prize VideoAubrey Grasteit of SyracuseArts Academy, 8th - 10thGrade Grand Prize Essay

Taylor Bybee, of Syracuse ArtsAcademy, 8th - 10th Grade

Regional EssayCandace Heki, of SyracuseArts Academy, 8th - 10thGrade Regional EssayJoey Lucero of Joel P. JensenMiddle School, 8th - 10thGrade Regional EssayMadison Marshall of GeorgeMueller Academy, 8th - 10thGrade Regional EssaySha’uri Alonso of AMES,the Academy for Math,Engineering & Science, 11th -12th Grade Grand Prize Essay

Sha’uri Alonso is 18years old and enjoys playingsoccer on the varsity teamof Cottonwood High Schooland the club team SpartaUnited. When she’s not on thefield, Sha’uri’s nose is buriedin a book or she’s doodlingon her sketch pad. She alsoenjoys listening to and singingmusic (sometimes off-key)and spending time with herfamily. They enjoy travellingand experiencing differentcultures.

Sha’uri Alonso’s essay:‘Great Charter’

Magna Carta was the firstconstitutional manuscript andone of the most significantdocuments on the pathto democracy. MagnaCarta was important to theFounding Fathers, and theyincorporated many of theprinciples of Magna Carta asthey established the United

States. They analyzed andunderstood this document’spart in guaranteeing basicrights and freedoms for theEnglish. Before it had beencreated, monarchs ruledsupreme. With Magna Carta,the king was not allowed to beabove the law. Instead, he hadto respect the rule of law andnot abuse his position as king.

The Great Charterwas a clear inspirationfor the founders becausethey included several ofits provisions in the Bill ofRights. A key item that theGreat Charter provided wasthe Habeas Corpus or theright to due process. Section39 of Magna Carta containsthe law of the land provision.King John protected thepeople from prosecutionfor crimes, unless done soaccording to the prevailinglaw. This provision madearbitrary prosecution illegal.In the Fifth Amendmentto the Constitution, thefounders incorporateda modern version of thesame idea. The AmericanConstitution prevents thenational government fromtaking citizens’ “life, liberty orproperty,” except when doneaccording to due process oflaw. This statement, knownas the due process clause,provides Americans withassurance that legal actionagainst them has to follow

a familiar andunderstandablepattern.

Another ideathat originatedfrom MagnaCarta, andis now seentoday in ourconstitution,

is what is known as trial byjury. Criminal prosecutionsare a threat to citizens becauseof potential loss of freedom.King John promised in MagnaCarta that he would not abusehis power by imprisoningthem unless their peers foundthe punishment just. Thisdeclaration became part of theAmerican Constitution. TheSixth Amendment ensuresAmerican citizens can receivea fair trial by jury in allcriminal proceedings. Thejury must be impartial andmade up of fellow citizensliving within the same districtof the alleged crime. Crueland unusual punishment wasalso mentioned in the GreatCharter. In section 20 itinformed the English that theroyalty could not inflict cruelpunishment against citizens.The fear was that monarchswould punish people soseverely that it wouldbecome a means of deprivingindividuals of freedom. KingJohn agreed that punishmentshould be in harmony withthe gravity of the offense. TheEighth Amendment includesthe same principle. Excessivebail amounts and excessivefines are unconstitutionalunder this amendment.

The rights written in theGreat Charter did not grantany new rights, but it didprotect existing rights. Italso included reasonablelimits on taxes and a degreeof guaranteed religiousfreedom. The Great Charterwas a significant influenceon the historical process thathas resulted in the rule ofconstitutional law today.

Sha’uri Alonso


Basic Rights Americans Often Take for Granted

As Law Day quicklyapproaches, Scott Youngfeels it is important toreflect on some of themost basic rights that we,as Americans, often takefor granted. Young, a SaltLake City lawyer whospecializes in civil rightsand government defense,commercial litigation,and insurance defensesays “It’s all too commonfor us to have blind faiththat if a problem arisesin any of our lives, thatthere is a process for a fairresolution [the judicialsystem].”

Young says “Thingshaven’t always been thisway throughout history.”In fact, Young says that itis because of Magna Carta,which laid the foundationfor our judicial systemtoday, that we are ableto have resolutions toour problems. When theMagna Carta was written,the king did whatever he

wanted, whenever hewanted. People weren’table to wake up everyday with the sameassurances we have. “TheMagna Carta was thebiggest step in gettingus where we are today”according to Young.

Young, a ColumbiaUniversity School ofLaw graduate, knowsand understands MagnaCarta and its influencesnearly eight centuriesafter its creation.And with his detailedunderstanding, hebelieves in maintainingand improving ourcurrent laws. Accordingto Young “Our societyis an ever-changing one.Our legal system mustadapt in order to keep upwith the many changes.”He adds, “Of course, noprocess is perfect, but thecourts, state legislature,etc. are good at keepingup with these changes.”

As an example, Youngmentions the Utah Rulesof Civil Procedure. Thecourts recognized thatcivil cases were boggeddown in discovery and toomany cases were not beingheard. So, they adaptedto make sure discoverywas possible no matterthe size or matter of thecase. “This,” Young says,“is a great example ofchanging to better servethe community.”

And speaking ofserving the community,Young mentions thathelping and servingthe members of hiscommunity are whathe loves most about hiscareer. Young says that inthe ten years he has beenpracticing, he’s seen howcritical a resolution can be

for any given individualwho faces a problem.Young attributes hismotivation for his careerto the relief and joy hisclients feel and expressto him upon findingresolutions in the variouscases he represents. “Ithoroughly enjoy beingintellectually engaged.Legal issues are tough andthe challenge of seeingdifferent sides of an issueand coming up with aresolution between twoparties is very rewarding,”states Young.

As Young reflects onthe influence of MagnaCarta, he looks forwardto the future and whathe’d like to see realized inour community. Youngoptimistically says thathe has a personal goal

to practice law with thehighest degree of honorand honesty. “We need tobe continually educatingourselves with what isgoing on in our society atlarge.” He goes on to say“Everything is changing soquickly and lawyers needto be at the front of changeto understand the impactit has on our rights and thejudicial system.”

Lastly, Young believesthat lawyers can’t sit inthe office and do work,they need to interactwith the community tounderstand the challengesthat confront everyone.The real solutions requiresolutions for everyoneand not just one person.It’s something which iseasily overlooked but veryimportant.

Scott Young

GET TO KNOW

BY JORDAN JOLLEY

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Eight Hundred Years: From MagnaCarta to an Independent Judiciary

Chief Justice John Marshallfamously wrote that the“government of the United Stateshas been emphatically termed agovernment of laws, and not ofmen.” No one is above the law.Government may not take away aperson’s liberty or property exceptunder just laws properly enacted,openly published, and fairlyapplied. Anyone charged with acrime or a party to a civil suit isentitled to notice of the charge orclaim and an opportunity to beheard by an impartial tribunal.These familiar principles of therule of law have contributedto this nation’s remarkableachievement: Emergence fromsuch tattered and humble originsinto a successful and prosperousdemocracy in which individualrights are protected is possibleonly in a country where lawmatters a great deal.

The origins of thesefoundational principles, and themeans to realize their promisesand protections, surely warrantour careful attention at any time– especially this year. They foundtheir first formal expression inour legal system eight hundredyears ago this June on a meadowmeeting-place alongsideEngland’s River Thames calledRunnymede. Then and thereKing John affixed the royal seal toan iconic document later entitledMagna Carta, or “Great Charter,”laying the cornerstone for whateventually would become today’score constitutional guarantee that“no person . . . shall be deprivedof life, liberty, or property withoutdue process of law.”

This anniversary is a fittingoccasion to remember that ifours is to remain “a governmentof laws,” if we are to enjoy therule of law’s shining benefits ofliberty, justice, and prosperity,we must provide for its essentialcomponents. John Adams’s draftof the Massachusetts Constitutionand Alexander Hamilton’sFederalist No. 78 both recognizedthat individual rights and libertiescannot be preserved without anindependent judiciary, whichthe late Chief Justice Rehnquistdescribed as the “crown jewel ofour democracy.” The stakes aretangible.

Numerous cross-nationalstudies have found thatactual protection of judicialindependence, as opposed

to mere paper guarantees,contributes substantially to suchbasic aspects of human welfare aseconomic development, politicalstability, and protection ofindividual rights.

Judicial independence meansjudges have the latitude to decidecases according to their bestanalysis of facts and reading of thelaw without interference or fearof retribution for the outcomeand, to maintain the separationof powers, have resourcesadequate to perform their taskfree from encroachments by thepolitical branches. And judicialindependence both supports andis supported by public confidencein the legal system, which in turnpromotes compliance with law.

For judicial independenceto promote the rule of law and

public trust in thejudiciary, it mustbe tempered withaccountability.This balance isnot easy to strike.Judicial discretionis the cartilage inour legal system’sdecisional joints:finding facts,

interpreting and applyinglaws, managing proceedings,and, within law’s limits, doingjustice, all require exercise ofjudgment. The balance in somestates, however, has titled askew.In the name of accountability,some have seen money-saturatedhighly politicized elections andretributive outcome-drivennon-retention votes. Suchprocesses compromise judicialindependence and, by treatingjudges as ordinary politicalofficials, may influence them tosee themselves that way ratherthan as the exceptional publicofficials the rule of law requiresthem to be. Utah is fortunateto have a merit-based judicialselection system, a non-partisanperformance-based retentionprocess, a robust Judicial ConductCommission, and high-caliberjudges on its trial courts, Courtof Appeals, and Supreme Court.Its people deserve to have eachstrongly supported.

DON JUDGES IS PROFESSOR OF LAW AT THE UNIVERSITY OF ARKANSAS Law Day AwardsPro Bono PublicoRecognizing people providingdonated legal services tothose most in need.Law Firm:

Attorney General’s OfficeYoung Lawyer:

Russell YauneyStudent:

Adrianna Anderson

Young Lawyers DivisionYoung Lawyer of the Year:

Aida NeimarlijaLiberty Bell:

Paralegal Division

Scott M. Matheson AwardsLaw-related youth education:

Christopher ReynosoJohn Fay

See details at www.utahbar.org

Don Judges

435-628-3688www.snowjensen.com

SOUTHERN UTAH’S PREMIERBUSINESS AND ESTATE PLANNING LAW FIRM


My Career: A Beloved Hobby

Though many workingindividuals see a career as ameans to provide for themselvesor a family, others see a career asa way of life or a beloved hobby.In the case of Heather Thuet thisis especially true.

Thuet, of Salt Lake City, is alocal attorney and shareholderat Christensen & Jensen, whoseareas of practice range fromreal estate where she representsentities and individualsin matters involving realestate, including negotiation,evaluation, sale, purchase, use,and valuation, to professional

liability/medical malpractice/construction defect whereshe represents healthcare providers, engineers,contractors, appraisers,home inspectors, real estateagents, and other professionalsin malpractice and licensing/disciplinary matters.Additionally, Thuet representsbusinesses and individuals incatastrophic personal injurytrials.

Thuet graduated fromthe University of Utah withhonors and has since focusedon cultivating her sheerfascination with the process oftrials and helping individualswhether they are a plaintiff or adefendant. According to Thuet,“For me, it’s rewarding to be in

front of a jury and tell the storyof a plaintiff or defendant. I amthe story teller and it’s up to meto tell even the most complicatedstory in a correct manner sothat it is easily understood anddigestible.”

A personal story to whichThuet attributes her appreciationof her career draws from hermedical malpractice history.Thuet had a client who dedicatedher life to the healthcareindustry, but was being suedfor a death the client didnot have control over. Thuet

informed her client she wouldface financial ruin if she didnot settle and were to lose thecase at trial, but her client knewshe had administered the bestcare possible with her 40 yearsof service and wanted a juryto decide. Thuet respected herclient’s decision, and in the end,the jury was in favor of herclient. Thuet remembers howrelieved her client was and theweight that was lifted from herheavy heart.

As Thuet remembers themost fond memories of hercareer, she also attributes muchof our government’s judicialsystem to Magna Carta—adocument written over 800 yearsago. Why? Before Magna Carta,trial by ordeal had no place forattorneys and trial by waterwas common. Priests wouldimmerse a defendant in water. Ifthey sunk in the holy water, theaccused was deemed innocent.If they thrashed and fought inthe water, they were deemedguilty. Post Magna Carta, thingschanged dramatically.

Thuet added “Could youimagine if disputes were handledthis way today? Fortunately,our system has evolved into anorderly way of affording justiceto both those who believe theyhave been harmed as well as the

party alleged to have caused theharm. The right to a jury trialis an integral component of thatsystem. As a trial attorney, I havethe privilege of telling my client’sstory to a jury of their peers. Onthe whole, I’ve found that juriesget it right and afford justice.”However, without Magna Carta,Thuet understands even themost advanced judicial systemsin the world would be verydifferent today.

Thuet’s hopes and dreams areto further develop what MagnaCarta started so long ago byfinding methods to improve andgrow our legal system. She hopesto speed up the legal processand find new ways to provide allindividuals with better access tojustice. Though many workingindividuals see a career as ameans to provide for themselvesor a family, others see a career asa way of life or a beloved hobby.In the case of Heather Thuet thisis especially true.

Thuet’s hopes and dreamsare to further develop what theMagna Carta started so long agoby finding methods to improveand grow our legal system. Shehopes to speed up the legalprocess and find new ways toprovide all individuals withbetter access to justice.

Heather Thuet

BY JORDAN JOLLEY

GET TO KNOW

After 1300, MagnaCarta was notreissued—physicallyproduced and

disseminated across therealm—but simply “confirmed.”English kings confirmedMagna Carta dozens of timesin the centuries following thethirteenth, corroborating itsstatus as an exemplary writtencharter of good governanceand recognition of the lawfulliberties of English subjects.

There are multiple MagnaCarta manuscripts that canclaim to be “originals.” Why this

is so is a matter of historicalcircumstance, tradition, andscholarly conventions. Inaddition to the four 1215 firstissues, there survive one from1216 and four more each from1217, 1225, and 1297. Justtwo of these seventeen areoutside England, both dating to1297. They are in the nationalcapitals of Australia (Canberra)and the United States—thelatter is publicly displayedat the National Archives inWashington, D.C.

Magna Carta has beencited in over 170 U.S. Supreme

Court opinions, accordingto American University lawprofessor Stephen Wermiel,who analyzed 224 years of U.S.Reports of Supreme Courtdecisions. Of these 170 cases,28% concern due process of law;13%, trial by jury; 8% concernhow Magna Carta influencedAmerican constitutionalism;6% each treat antitrust mattersand habeas corpus; 5% concernother civil rights and liberties;and 4% each treat cruel andunusual punishment andexcessive fines. Wikimedia Commons

A 13th-century depiction of Henry III's coronation


Notes from a Place Very Far Away yet Very Close

Herm Olsen’sfather foughtin the SouthPacific on the

Destroyer U.S.S. Gatling.I'm sitting in Palau, a

delightful little countrynestled in the deepPacific just beyond Yap.It was the scene of aferocious land/sea battlebetween the Japanese andthe Americans in 1944.The Japanese wantedto win the war for theirEmperor; we wantedto punish them for thePearl Harbor attack.We wanted to defeatthe Nazis and to sweepJapanese militaristsoff the map. There aremany ships and planesstill at the bottom of thebeautiful blue lagoonsin this idyllic islandparadise. And there arestill many men entombedin those ships and planes,not to mention in thecaves and beaches of thissmall Island Nation.

Japanese EmperorAkihito and EmpressMichiko visited theisland battle sites inPalau and Peleliu on

April 8 and 9, 2015 tocommemorate the 70thanniversary of the endof WWII. An estimated10,000 Japanese soldiersdied in fierce combatwith the U.S. military onPeleliu alone. Becausethe Japanese foughton even in the face ofhelpless odds, only 216soldiers surrendered.Several thousand duginto more than 200 caveswhere they were buriedby U.S. heavy equipmentwhen they refused tosurrender. Two Japanesesoldiers survived thebattle, although they hidon the island until 1947,when they were finallyconvinced the war hadended.

Palau was a trustterritory until 1994,when independence wasgranted. The UnitedStates governed theislands for 50 years, and,for the most part, deededthe Palauns its judicialsystem. They have thesame three branches ofgovernment and utilize acurious mix of both U.S.and Palaun law.

So far, I am impressedwith the dedicationand diligence of thepeople, and mostly bytheir almost pathologicfriendliness. Theyappreciate us, and ourvalues. I found it curiousto compare the sagebrushmentality of the CityCouncil of La Verkin,Utah, which passed a"United Nations FreeZone Ordinance" thatbanned the internationalbody from town and the

City Council ofSpring City, Utah,which passeda mandatorygun ownershiprecommendation,with Palau, whereit is illegal toown a firearm ofany kind, unlessyou're a policeofficer. Thereis an extremelylow crime ratein Palau, and nodeath by gun inanyone's memory.

But whencrime does occur,jury trial is notpermitted unlessthe defendant

is faced with 12 yearsor more in prison.Virtually all crimes arehandled by one of fivejudges. Today I watchedthe closing arguments ofonly the fifth ever jurytrial in Palau. The defenseattorney (a bit rustyin arguing to the jury,as might be imagined)intoned the favorite (andcherished) notions ofAmerican jurisprudence,including burden of proofand reasonable doubt.We all await the outcomeof the jury.

But here's where itgets curious: if you areconvicted of attemptingto bring a gun into thecountry, you will servea minimum of 15 yearsin prison without the

possibility of parole. Andthat isn't because theprosecutors are vicious orthe judge cold-hearted.It's because the PalauConstitution mandatesthe punishment, totallyeliminating judicialdiscretion.

So that's near-American justice fromthe other side of theworld.

Update: The juryreturned with a “NotGuilty” verdict, the first inthe history of the nation.Olsen conferred brieflywith the defense counsel,an older Palauan namedOldiais, who thought itwas the new concept ofreasonable doubt, thatswayed the jury.

BY HERM OLSEN, UTAH STATE BAR COMMISSIONER AND ATTORNEY AT HILLYARD, ANDERSON & OLSEN

U.S. troops of the First Marine Division storm ashore from beached Alligator vehicles at Peleliu Island, Palau onSept. 20, 1944 during World War II

Present day view of Pacific Ocean from the top of a Lighthouse, PalauiIsland, Cagayan, Philippines.


SALT LAKE COUNTY BAR’S ART &THE LAW AWARD WINNERS

2nd place elementary award winner CamdenMcEwen, 5th Grader at Herriman Elementary;teacher Joan Richards

3rd place elementary award winner Jackson Price &Kate Altman, 4th Graders at Rowland Hall LowerSchool; teacher Kathryn Czarnecki.

3rd place middle schoolaward winner Osman Kassim,Northwest Middle School;teacher Jillana Butler. OsmanKassim: There are lawsagainst people being arrestedwithout cause. Some of thelaws we have today are basedon Principles found in MagnaCarta.

1st place elementary award winner Jack Vitek & MaddieCarlin, 4th Graders at Rowland Hall Lower School; teacherKathryn Czarnecki. Best in Show award

winner QuinnYeates, 4th Gradersat Rowland HallLower School; teacherKathryn Czarnecki.

CONTINUED ON PAGE 16

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.


On June 15, 1215,at Runnymede, the 48year-old King Johnpressed his royal seal toa document called the‘Articles of the Barons’that history gives aloftier name: MagnaCarta. The charter,an attempt to brokerpeace with a groupof rebellious baronswho had renouncedtheir feudal ties toJohn, would be almostimmediately ignored byboth sides and annulledby the Pope shortlythereafter.

Magna Carta wasyet another setbackfor John, anotherabject disaster in a

life remembered inpoetry and prose for itsfailures. He had badlybungled the opportunityhis father gave him inIreland, had ruined hisfirst marriage, betrayedhis father and then laterhis brother Richard,was rumored to haveordered the murder ofhis nephew, had beenexcommunicated, andhad lost almost all of thevast territory in Francehe inherited upon hisascension to the throne.

His brother Richard,the larger than lifemodel of chivalry, theruthless crusader andmilitary genius, andfavorite of his nearly

mythic mother, Eleanorof Aquitaine, they called‘Lionheart.’ John theycalled ‘Lackland’ orsometimes, ‘Softsword.’In 1215, some monthsbefore Magna Carta,John too had declaredhis intent to go oncrusade. It neverhappened. Add it to thelist of failures.

He would be deadthe next year, fromdysentery.

The thing is, Johnnever should havebeen king in the firstplace. He was fifth offive brothers, small andtemperamental andprone to tantrums andhis elder brothers werecharacters out of theages. True, the eldest,William, died at theage of three, but Henry,called ‘The Young King,’Richard, and Geoffreywere all strapping,soldiering, thunderersof young men, clearlymade in the classicPlantagenet mold. John,by contrast, couldn’thave struck anyoneas very likely to beremembered by history.But Henry died of

dysentery, Geoffrey wastrampled by a horse,and Richard killed by acrossbow bolt shot by aboy.

Most of what weremember Magna Cartafor—Habeas Corpus,Trial by Jury, and therest—was introducedlong before MagnaCarta and sculpted intobeing by John’s father.

But, at the time, whocould blame anyone forthinking Magna Cartasimply another of John’spathetic reversals?Who could imaginethat Magna Cartathrough the centurieswould accrue a patinaof import it almostcertainly never had forJohn in his desperationat Runnymede?

But accrue it did.By the late renaissance,Magna Carta hadacquired for itselfsomething of the specialhalo it wears today.By the time of theAmerican Revolution, itwas regarded as the verywellspring of the rule oflaw, as the source fromwhich the entire EnglishCommon Law sprang.

Accurate or inaccurate,Magna Carta’simportance continuesto endure today as an“Icon of Liberty.”

And, while thedocument itself wasbarely worth theparchment it waswritten on in the mindsof those whom it wasmeant to bring toaccord, and though itwas watered down bysubsequent reissues,and annulled on acouple of occasionsby the Church, andthough nearly all ofit has been explicitlyrepealed by Parliament,that strange seedpractically explodedinto the tree from whichthe fruit of Anglo-American civilizationis continuallyplucked. Sometimesgreat things turn outgreat in ways no oneexpects or designs.Sometimes great thingsare midwifed by deeplyflawed human beings.Sometimes great thingsare born of failure.

MAGNA CARTA MAGNUS DEFECTUS

Jeff T. Nielsen, Esq., Associate Professor,David Eccles School of Business,University of Utah

Timothy R. Pack, Associate Attorney,Clyde Snow & Sessions

1st place middle schoolaward winner Annie Than,Northwest Middle School;teacher Jillana Butler.Annie Than: Beginningwith Magna Carta, lawshave been passed to protectrights and freedoms ofindividuals. The key inmy painting representsdifferent laws. The locksrepresent freedom.

2nd placemiddle schoolaward winnerDaniel Lerma,NorthwestMiddle School;teacher JillanaButler

CONTINUED FROM PAGE 15

law day 2015

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