 |
| No Shortcuts |
- Utah Supreme Court throws out Ogden gang injunction
- Utah Supreme Court strikes down Weber County's anti-gang injunction
And here's what the court decided, wherein we'll liberally incorporate the language of the court ruling, with the unsightly "legal citations" omitted, and "emphasis (occasionally) added," just for clarification and simplification:
1) The Court lacked appellate jurisdiction, because the so-called individual Appellants (Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann) were not real parties in interest to this lawsuit. "Since none of the so-called appellants were parties to the case, they are not entitled to an appeal as of right. Under applicable rules, it is the service of process, the affirmative act of filing suit, or the act of seeking to intervene as a party that subjects one to the jurisdiction of the court and puts him on notice that he is subject to ongoing court proceedings.” Mere notice of or appearance in proceedings is not enough. Even though the district court allowed the so-called appellants to be heard, they were not named parties and never filed motions to intervene. They were therefore not entitled to appeal and we lack appellate jurisdiction over the appeal." In Short, it was the Trece Gang which was named in the original lawsuit, and not any of these individual litigants.
2) The court did have jurisdiction to consider these individuals' Petition for an Extraordinary Writ, in order to clarify their legal rights with respect to the permanent injuction. These individual Petitioners "filed a petition for extraordinary writ directly with this court. Pursuant to the Utah Constitution, we have “original jurisdiction to issue all extraordinary writs.” This is the proper vehicle by which nonparties to a lawsuit may challenge a district court’s order. A petition for extraordinary writ filed with the appellate court provides an adequate remedy in light of the appellate court’s obligation to give due regard to principles of due process.” Thus, we have jurisdiction to consider their petition and turn to the merits of their claims," the Court said. Inasmuch as these three individual Petioners arguably suffered "wrongful restraint on personal liberty" so long as the subject injunction remained in effect, they were well within their rights to seek relief through the Utah Supreme Court.
3) Trece is an unincorporated association which is amenable to suit."...Trece transacted its business under a “common name” under rule 17(d). Because Trece (1) transacts business (2) under a common name, it is an unincorporated association amenable to suit." So technically, the Ogden Trece gang can be sued and enjoined, theoretically at least, provided our Weber County Attorney isn't too lazy to do the necessary footwork.
4) Trece was not properly served with process. The devil's in the details when purported service of court papers occurs through publication, rather than direct service, of course. "The party seeking to effectuate service through publication must exercise reasonable diligence in attempting to identify and then personally serve an officer or managing or general agent or his equivalent. At no time during the [original court] hearing did the County make any assertions that it had exercised reasonable diligence in attempting to identify or serve an officer or a managing or general agent of Trece," the court held. So far, at least, it seems the Dee Smith and his crack crew of "legal eagles" have so far adopted "the lazy" approach.
5) No attorneys fees for the Petitioners' attorneys."Petitioners have failed to articulate any argument or cite to any authority supporting their entitlement to an award of attorney fees when a permanent injunction is vacated. We accordingly deny their request for fees."
There you have it, O Gentle Ones. Easy as pie, innit? From the point of view of Weber County Attorney Dee Smith, it's now back to the drawing board, we suppose.
For those WCF readers who'd like roll up their sleeves and dive into the "original" source material, here's a handy SCRIBD embed of the Full Utah Supreme Court decision:
When it comes to personal liberty, it's encouraging to observe a Utah Supreme Court which will not tolerate "shortcuts."
The floor's open for you comments.
Don't let the cat get your tongues.
4 comments:
The Utah Supreme Court has decided that issuing a injuction on the basis of unproved guilt by association is not legal. There seemed to be no way to deny your connection to gang association with police using unproven charges to claim someone guilty without presenting the reason for claiing guilt.
So now the gang members are once again free to associate without limitation. Great news. Tell me when you beam back down from the mother ship.
Sometimes the way you bait us to get us to post goes too far.
You are always a gentleman.
Ever since the Patriot Act was signed intrusions on our basic liberties have been rampant. This injunction was simply illegal. We are seeing a loss of the freedoms we treasure being imposed in the name of preserving freedom.
Post a Comment