# Petition for Writ of Certiorari — Cox v. Utah Labor Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1039

## Text

Supreme Court, U.S.
FILED

981198 /AN2619%7

ag OFFICE OF THE CLERK

IN THE
Supreme Court of the Cinited States

OCTOBER TERM , 1998

DANIEL SCOTT COX, PETITIONER

LABOR (INDUSTRIAL) COMMISSION ET. AL.,
RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

LABOR COMMISSION OF UTAH

PETITION FOR WRIT OF CERTIORARI

DANIEL SCOTT COX
1135 S. CONCORD ST.
SALT LAKE CITY, UTAH
84104

PH. 801-973-0834

\Aee

The denial of Jurisdiction for Judicial Review by the
Court of Appeals where review is provided for by statute,
and denial of certiorari by the Utah Supreme Court creates
dual Federal issues where the “Highest Court of the State” is:
(1) the Labor Commission regarding the violation of
Petitioner’s Constitutional right to Summary Judgement and
Sanctions, and (2) the Utah Supreme Court regarding the vio-
lation of Petitioner’s Constitutional right to Judicial Review.

3 Did the denial without finding of fact of Petitioner’s
Uncontested Motions for Summary Judgement and Sanctions
and/or the refusal to rule on Uncontested Motions by the Com-
mission violate Petitioner’s rights under Amendment XIV,
Section | of the U.S. Constitution?

2 Is Petitioner as a “Matter of Law” entitled to award of
the Uncontested Motions for Summary Judgement and Sanc-
tions etc.?

3. Did the denial of Judicial Review violate Petitioner’s
rights under Amendment XIV, Section | of the U.S. Consti-
tution?

4. Did the “Arbitrary” Actions/Orders of the Commis-
sion and/or the denial of Judicial Review render the Utah’s
Worker’s Compensation Act (UCA 35-1) Unconstitutional?

>. Is statute UCA 35-1-88 of the Worker’s Compensa-
tion Act of Utah Unconstitutional?

6. Are injured workers entitled to Judicial Review of “Is-
sues of Law” arising before a Final Order on the merits of a
Worker’s Conip. Claim is Issued?

(1)

LIST OF PARTIES

Michael Dyer

Attorney for Weslo/Proform and Liberty Mutual Ins. Co.

77 West 200 South

Salt Lake City, Utah 84101-1609

Ph. 801-521-7900

Alan Hennebold
General Counsel

Utah Labor Commission
P.O. Box 146611

160 East 300 South

Salt Lake City, Utah
84114-6611

Ph. 801-530-6937

Daniel Scott Cox

Pro Se

1135 S. Concord St.

Salt Lake City, Utah 84104
Ph. 801 973-0834

©
‘

(ii)

TABLE OF CONTENT

TOPIC Page No.
QUESTIONS PRESENTED ...........0.cccecrrsesrrrersesrorsseesors i
Be Ge BIE TID ereeescsvenesvereccnsonecoccevecnvavecssovenvaseenreesseners il
TABLE OF CONTENT SS ....0:::-cccscscccecovsssvecoveccccosscsssessesnees iil
TABLE OF AUTHORITIES. ....2.....cccccocossrevseesererserssoeseesees vi
CITATIONS TO OPINIONS BELOW ..............::cccseeeeeeeees xii
ETT csiccvscassveswerscvrhsereiubbenvereberveuscereseveceneuseoeues xiii
CONSTITUTIONAL, STATUTORY & REGULATORY
PROVISIONS INVOLVED ............ccccccossessvocesesesersosersnerers XV
EET, 5 ctsdccncsnrsdvtipesssntivveconieteonntianteseeesrearnnewoeeseree l

STATEMENT - SUMMARY ................ccccceserereeeees l

STATEMENT - ESSENTIAL STATUTES............ 1

STATEMENT - PROCEEDINGS IN THE

SAEED SUEAUT ecsrsetercenventssevrvencentvteveveevorceenseees 4
REASONS FOR GRANTING THE PETITION ............... 10
GENERAL:

I. Judicial Review Required ...............:::000+ 10

Il. Labor Commission Is “Highest

Court Of State” Regarding The Commission’s
Actions and Orders On Uncontested Motions
IEEE BEI sctienccrsvesscscrweesvenseveseteneveeqovens 1]

(iii)

il. Utah Supreme Court is “Highest Court
Of The State” Regarding The Issue Of Judicial
Review, and Petition is timely ................:eeeeeeeeeeees 13

IV. Exceptions To U.S. Supreme Court
Final Judgement Rule Are Satisfied ..............:020++ 13

ISSUES ARISING FROM COMMISSION'S
ACTIONS AND ORDERS:

ISSUES ARISING FROM THE COURT OF APPEALS DE-

V. Commission’s Actions and Orders
Are Unconstitutional Where Arbitrary,
Unfair, Unreasonable, Or Oppressive ...............+++ 15

Vi. Abuse Of Discretion Is
ceed sleuseeinisanebannnes 18

VIL. Petitioner Is Entitled To Award
Di ie Re Eo a coancanmseneomeniemaniell 20

NIAL OF JURISDICTION:

VII. The Court of Appeals Decision

Err’s And Abuses Discretion ...............ccccsscssseesseees 21
VIIA. RL a ed ae ee 21
VILB. Failure to Harmonize ....................0000+55 22

VILIC. Judicially Rewrites
i a ea a a ae

VID. Exception to Exhaustion
of Remedies is Applicable ...............:ccceeeeseeeeeeseees 23

(iv)

VILE. Reliance yn 14 July1997
Instead of 17 November 1997 Is Err..................26+. 24

VILIF. Precedent of Varian-Eimac
Does Not Apply, UCA 35-1-82.55
RES RR ennaeeny «

VILIG. Failure to Rule On Motions for

Protective Order and Sanctions Is Err ................... 25
VIITH. Summarization of Err and Abuse
santa TEL ORAS 26

IX. Violation of Duty by the Utah

CIE ccccccsccenncnvinverienssveninsememmnmpcnncneiinniomipents 26
CLOSURE:

X. The Issues of This Case are Important

Federal Issues of National Interest.................... ae |
CIC TEIN oscssicccesstesenrecsemnsnesatessscasesseoniperisniqrenanenens 30
PAPEETE, AA... <ceicccneeccnccerccenenntensoenssestenrentnasninenteevenstvapiones la
PBT, BD nncceccicccnescveisvinerssiiesisisiinividemavictinnantagpnatiotn Sa
PI, evvtestssscisscetsitnsiicearedivaenepnaioinl 10a
PPP OD osviveveccssevsssscsconssessvtatqeivanmvianncennasnvinss va 12a
PE ccevccevcecsexssusvcinssnevensoncocvessssmenenastsmenianmenetions 24a
FPP TIIG FF oenvsccssvcsenrsevisnensscrevexsencereinceeisionniandennmmunconets 58a

(v)

LIST OF AUTHORI

PRECEDENTS PAGE NO.
Allred v. Utah State Retirement Board .................0+ 21, 24a
Allon v, Trad. CORR. ..0cccnccesnsesessesscesanessecsnressacesnssvenssonctons 24a
Amica Mut. Ins. Co. v. Schettler ...............+ 15, 17, 21, 25a
Aragon v. Clover Club Foods Co. «......::::::10s00 12, 24, 26a
Baker v. Ind. Comm. ............cccesccccssssecesssseneessensees 16, 17, 27a
Bastor vy, Lrndl, CORRE. ...ccscovevccoccccnexeseserevesnancesssawsneesecs 17, 27a
Bateman v. Board of Examinet®s .............::::eceeeeeeeeeeees 22, 28a
Becton Dickinson V. REE@SE ...............ssseeceesseeeesseees 12, 25, 28a
Bennion v. Sundance Development Coprp. ........... 22, 26, 28a

Berry by and Through Berry v.
es ie cechnssceiouuveepennsbeceunntecsion 7, 12, 24, 28a

Blue Cross and Blue Shield v.

Bari cacceceacnceecanievasnbenneetecteeysnimuanioninaiasneanee inners 23, 29a
Borgnis v. Falk Co, ........::sscsseeserseeseeesseeseesessnennens 11, 27, 29a
Brendle v. City of Draper ............ssseseeeeeeees 23, 25, 29a
Bieemene ll wy Teil, COCR. ...ccecee<cseccccsnnssccnsuseccerensnens 16, 17, 30a
Cox Broadcast. Corp. v. Cohn ..........:sseeeeeseseeeeees xiii, 14, 30a

(vi)

PRE ENTS PAGE NO.

De Baritault v. Salt Lake City Corp. .............. 22, 23, 26, 32a
Deseret Sav. Bank v. Francis ...........:cccecceeeeeeeeeeeees 18, 24, 32a
Dupler v. Yeates .........:.ccseesesecseesseeenenennenaeneesneneens 17, 21, 33a
Engl v. Aetna L. Ins. iis nietiianinemnnnenlien 14, 17, 21, 34a
Flynt V. OWI0 .........sceseseseeeeseeeeseretseneenenenersnnsnenecnenes xiii,14, 34a
Fred Meyer Vv. Ind. COMM. ...........::scsscceseeeeerenseteeteetees 17, 34a

Gillespie v. United States Steel Corp.... xiii, xiv, 15, 29, 35a

Grace Drilling v. Ind. Comm,’ ..........::::::ssseeeeseereeseneess 16, 36a
Grovey V. TOWNSENG ..........sceecreeeeeeees Peivesomeses xiii, 11, 36a

Harmon v. Odgen City Civil Service Commission... 23, 37a

Herr v. Salt Lake County ...........:::ccceeesseeeeeseereeeeeeeterens 23, 37a
Ir Re Owens’ Estate ..........ccccccccscscccscccsvcsevcceesoosees 18, 24, 37a
In Re Utah Savings and Loan Association ...........-.++. 22, 38a
Jensen v. IHC Hospital . ..............::seeeeeereeees 6, 18, 21, 22, 40a
James v. Honaker Drilling Co. ..............:::::++ee+0 17, 21, 39a
Jerz v. Salt Lake County ............:::sseeeeeeeeeeeeeseenenees 22, 26, 41a
Johnson V. BrittOM ..................ccccccccccrvevessecreessssonses 16, 18, 42a
Johnson V. Ind. Comm. ..............ccccccccceecccessseeceeees 11, 27, 42a

(vii)

PRECEDENTS PAGE NO.

Jones v. California Packing ...........:::cceseseeessreeeeneeees 16, 42a
Marshall v. Andrew F. Mahony ..............:0:seeeeeeeees 16, 18, 43a
Merton Vv. Ind. COMM. ............::.sseeecseereeeeeeeseeeneeeees 11, 27, 43a
Meyers Vv. McDonald . .........::s:sessseserersteenenereneness 12, 25, 43a
Milkovich v. Ind. COMM. ..............:eeeeeeeseeeeenereeeeeeeeenes 16, 44a
Nyrehn v. Industrial CIN oc csinicesessinsseveeetorsunnen 16, 44a

Order of R. Telegraphers v. Railway Exp. Agency .. 12, 25, 45a

Pan Energy V. Martin ..........::scscesseserseeesetestsenensesesnees 22, 46a
Park Utah Consol. Mines Co. ..........::::eeeseeeeeeeeeeeeeeneees 17, 46a
Pearce v. North Dakota Workmen’s

Compensation Bureau ...........::sssssseseeeerereeetesesens 18, 24, 46a
Salt Lake City v. ORS ..........:cesceseesseeseeeeetsetentesesens 26, 47a
Spencer v. Ind. COMM. ..........+ssssseseeereneresesessesecetereenes 16, 48a
Savage V. Educators ..........ssccssssssessesseeersenenecesneseeenens 29, 48a
Baten oy. FARON occ cencecsncecceccsvesnnrsaserseencsnvenanensgeossosenes 11, 27, 48a
St. Joseph Stock Yard Co. v. United States .......... 11, 27, 49a
Strand v. HamsSen ............cccccscsssscrceconssesscssegecssceveces 16, 18, 50a
Supervisors v. United States ......... 18, 19, 20, 21, 24, 27, 51a

Taslich v. Ind. Comm. ...........::ccccccessseeeeeerrsesseseessseeeees 17, 5la

(viii)

Tice v. State Ind. Acc. COMM. ............::seeeeeeeeeeeees 18, 24, 52a

TXO Production v. Alliance ReSOUICES ............++++++++ 15, 52a
United States v. DOWG .........:::cccccceesssseeeeeeesenerreeeeeeeeees 11, 53a
United States v. Richmond ...........:::ceceeeeeeeees xiii, 11, 13, 53a

VanDYKE v. Mountain Coin

Machine Distributors, IM. ..............:ccceeeeeeeeeseenreeeeeees 15, 53a
Varian-Eimac V. LaMmoOreux .........-:::ssceeeeesereeeeeseeees 8, 25, 54a
Warren Vv. Indiana Tele. Co. ..........cceeeceeeeeeeeseeeeeees 11, 27, 54a
Whitmer Vv. City of Lindom.............scceceeeeeseeneeteetetseteess 9, 55a
Wilson v. IBP, Inc. ........::ccssccseeseeseesseeeeeeneseseneeeenennenes 15, 55a
Wilson v. ISeminger ...........:-sseeeeeseesseeeeeesenenenees 12, 25, 56a
Wilstead v. Ind. Comm. ..............::ececeeeeeeeeeeeneeeeeeeeeeees 17, 56a

99 C.J.S. Workmen’s Compensation,
Const. of Acts, pg 125 - 128 .......:escceceseeseesettetsettetsees 22, 57a

99 C.J.S. Workmen’s Compensation,
$20, pes 120, 121 ........eceesesesesesesrereeeereterenesnenesensneneens 23, 57a

CONSTITUTIONAL, STATUTORY & REGULATORY
PROVISIONS INVOLVED

Constitutional Provisions Page No.

Article I, Section 11,

Utah Constitution ................ccccsccccesessssessesneees 9, 25, 26, 21a
(ix)

Article I, Section 24,
Leis CI... cccleicsnsmnncentendincanstmenmeasaaanine 9,12a

Article VIII, Section 3,
i Souis-€ ieee... «. ... idecsacececencticesendedtsadeumenaiiee 27, 12a

Amendment XIV, Section 1,
SD. CI oo cccncecavecccomes i, 8,9, 10, 11, 13, 18, 19, 20,
23, 26, 27, 28, 30, 12a

Worker’s Compensation Statutes Page No.
Jt. ee rcenrnne at i, xiii, 11, 12,13, 18, 19, 26, 28, 13a
CA. BE GGT incecrssecvesitsotnnsieisceeniennmnpiaemnanainnia 7, 13a
UCA 35-1-82.53(1)V(2) .....ccccecssscrsssescesers 2p Dy 2oy Lay Oy 1358
CA, SBS ESS eivccescsirinstcinsitisiciniaiiaiiticiacaidlemmebannainniee 25, 14a
LIE, Bebe BD iccosnsetsiiiicncovecissvnsniaitemiiniialtea 3, 22, 23, 26, 14a
Ee SI cisccsceseccnsneceenessnaneninnnedl i, xili, 12, 19, 20, 14a
Administrative Procedures Page No.
Act Statutes

CA Be sesecscscibtacnttemiiserncmiveeeiptaiinnn 4,19, 14a
Ss Ee ectdacsencninicidhcenasneriocntanes 1, 2, 7, 9, 23, 24, 15a
IA, GED ceccenccnentcsecenersinevestinns sehaciiapninedsindiennéodo 24, 15a
Ue IG asricticcecererconccrs 1, 3, 7, 8, 22, 23, 24, 25, 15a
Court Jurisdictional Statutes Page No.
Re Fe aiarecacerchicatecttpciensacnnniniione pi ee ee

ICA, TB-28- HZ) cocececcessveescovcccscsvewescccevevsvsesese 2, 9, 22, 16a

id Be RS | eecercmemenny ap ST ae Oe
Utah Rules of Civil Procedure Page No.
nS 6 Fe is setkscceielstssticintemivtneritntwetsevevstcewess 19, 17a
BR OD Fe 9) eee eenennen 19, 17a
Big 5 8 & 2 seer een 19, 18a
is Se ee ds apennalionebotaeeineriiscbandtl 19, 18a
pe ft | ee 2 en 4,5, 6, 19, 18a
eae Ge TIRE FR BUR icnccccrsscvetenesccevocesrrcertintonenprccessaqeve 9, 19a

Worker’s Compensation Rules

R568-1-4(M), 1st Sentence ...............scssessescssereeseereereee 3p DUB
R568-1-4(M), 2nd sentence ..............:eeeeeeeeeeee 2 75 24, 208
Eee a
RIGB-1-4(O) Zand SeMCACS ...00ccccsecosersecesscveversvevevecsoasece Dy GUM

Utah Rules of Appellate Procedure

RE) 2 SS SP
Rabe 14 Utes R.AgD .nccssccccoccovscsscsvccseconsesovers viene Gy ety ae
atin 10 UI TD. scsceerercscsnisnstiasitssinnniniiinteinsinivie Dy eae
Rule 46a Utah R.Anb.P.. ......00cccccsesseccsccssorecovesseeeeners 9,27, 21a

Federal Statutes

PB USCA. S125 Tt) oonccccececcecccccccscovesesceceseeceeeee xiii, 12, 23a
(xi)

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1998

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays for a writ of certiorari to

review the judgement below.

OPINIONS BELOW

|X] For cases from State Courts:

The opinion of the highest state court (Utah Labor
Commission) to review the merits appears at Appen-
dix A to the petition and is

{X] is unpublished

The opinion of the Utah Court of Appeals appears at
Appendix B to the Petition and is

[|X] is unpublished

The denial of my Petition for ReHearing by the Utah
Court of Appeals appears at Appendix B to the Peti-
tion and is

{X] is unpublished

The opinion of the Utah Supreme Court appears at
Appendix C to the petition and is

[|X] is unpublished
(xii)

JURISDICTION

|X] For cases from State Courts:

The date on which the highest state court decided

my case was 30 October 1998. A copy of the deci-
sion is at Appendix C.

The jurisdiction of this Court is invoked under 28
U.S.C. $1257(a), where pursuant to Grovey v. Townsend,
79 L.Ed 1292, the Utah Labor Commission is the “High-
est Court of the State in which a decision could be had”
on Petitioner’s Uncontested Motions where the right to
subsequent Judicial Review was denied and where stat-
utes UCA 35-1 and UCA 35-1-88 are drawn into Consti-
tutional question.

The jurisdiction of this Court is invoked under 28
U.S.C. $1257(a) pursuant to Gillespie v. United States,
13 L.Ed 2d 199, 203; United States v. Richmond, 279
F2d 170, 172, where the Court of Appeals denied Juris-
diction for Judicial Review even though Jurisdiction is
given by Utah Law, and the Utah Supreme Court denied
a Petition for a Writ of Certiorari.

Jurisdiction is also proper: (1) under the THIRD
CRITERIA of Cox Broadcasting v. Cohn, 43 L.Ed 2d
328, 338 - 341; (2) where Federal questions have been
finally decided and there will be no piecemeal review
(Flynt v. Ohio, 68 L.Ed 2d 489, 492; Gillespie v. United
States Steel Corp., 13 L.Ed 2d 199, 204); (3) the ques-
tions presented are fundamental to the further conduct of
the case (Gillespie v. United States Steel Corp., 13 L.Ed

(xili)

Id 199, 204; and (4) there is danger that Petitioner will

be denied justice by delay (Gi ie Vv
Corp., 13 L.Ed 2d 199, 204).

(xiv)

CONSTITUTIONAL, STATUTORY & REGULATORY

PROVISIONS INVOLVED

The Constitutional provisions, statutes, rules and regu-
lations involved being extensive, they are simply listed and
their text is presented in detail in Appendix D here-in.

Constitutional Provisions:

Article I, Section 11, Utah Const.
Article I, Section 24, Utah Const.
Article VIII, Section 3, Utah Const.
Amendment XIV, Section 1, U.S. const.

Worker’s Compensation Statutes:

UCA 35-1

UCA 35-1-44(7)

UCA 35-1-82.53(1) & (2)
UCA 35-1-82.55

UCA 35-1-86

UCA 35-1-88

Administrative Procedures Act Statutes:

UCA 63-46b-1(4)
UCA 63-46b-12
UCA 63-46b-13
UCA 63-46b-14
UCA 63-46b-16

(xv)

Court Jurisdictional Statutes:

UCA 78-2-2(6)
UCA 78-2a-3(2)(a)
UCA 78-2a-3(4)

Utah Rules of Civil Procedure:

Rule 1 Utah R.Civ.P.

Rule 11 Utah R.Civ.P.
Rule 37 Utah R.Civ.P.
Rule 54 Utah R.Civ.P.
Rule 56 Utah R.Civ.P.
Rule 65 Utah R.Civ.P.

Worker’s Compensation Rules:

R568-1-4(M), Ist Sentence
R568-1-4(M), 2nd sentence
R568-1-4(N)

R568-1-4(O) 2nd Sentence

Utah Rules of Appellate Procedure:

Rule 5 Utah R.App.P.
Rule 14 Utah R.App.P.
Rule 18 Utah R.App.P.
Rule 46a Utah R. App.P.

(xvi)

el

STATEMENT

STATEMENT - SUMMARY

Petitioner was diagnosed as having an Industrial In-
jury on 3/11/96, and filed for Worker’s Compensation. Re-
spondents denied compensability asserting, a pre-existing
anxiety condition. Petitioner warned that their basis for de-
nial was “Without Merit”. Petitioner obtained Uncontested
Motions for Summary Judgement and Sanctions which the
Commission refused to act upon or denied without finding of
fact. Petitioner filed a “Motion for Review” pursuant to UCA
63-46b-12 but the Commission failed to issue a “written Or-
der on Review” as mandated by statute. Petitioner gave no-
tice of the exhaustion of his remedies as allowed per UCA
63-46b-14(2)(b)(i) & (3)(a) and petitioned the Court of Ap-
peals which denied jurisdiction for Judicial Review. His Pe-
tition for ReHearing was denied. Petitioner petitioned the
Utah Supreme Court for a Writ of Certiorari on the issue of
jurisdiction which was denied without comment.

TATEM - NTIAL ST.

Critical is an understanding of the Utah Worker’s Com-
pensation, Administrative and Jurisdictional Statutes which
allow an “Interim Order” by an Administrative Law Judge to
proceed to Judicial Review by the Utah Court of Appeals as
a “Final Agency Order”.

Prior to 1987, the Court of Appeals operated under the
“Final Order - Only” rule where the only jurisdiction con-
veyed to the Court of Appeals for review of agency actions
was:

(1)

“78-2a-3 Court of Appeals Jurisdiction ...(2a) the fi-

nal orders and decrees of state and local agencies ...”

In 1987, the Legislature enacted the Administrative
Procedures Act, and amended the Jurisdictional Statutes for
both the Court of Appeals and Supreme Courts to include
the jurisdiction conveyed through the Admin. Procedures
Act:

“78-2a-3. Court of Appeals Jurisdiction ...(4) The
Court of Appeals shall comply with the requirements
of Title 63, Chapter 46b, Administrative Procedures
Act, in its review of agency adjudicative proceedings.”

“78-2-2. Supreme Court Jurisdiction ...(6) The Su-
preme Court shall comply with the requirements of
Title 63, Chapter 46b, in its review of agency ad-
ministrative proceedings.”

The appeal process mandated by the Administrative
Procedures Acct is:

. Worker’s Compensation statutes and rules (UCA 35-
1-82.53 & R568-1-4(M) 2nd Sentence) allow for review of
ANY ORDER by an Administrative Law Judge by filing a
Motion for Review pursuant to UCA 63-46b-12. Thus “In-
terim Orders” which occur prior to “Formal Adjudicative
Proceedings/Hearings” are subject to Administrative review.

’ Then, pursuant to UCA 63-46b-12(6)(a) the Com-
mission was mandated (shall being mandatory) to “Issue a
Written Order On Review”, which per UCA 35-1-82.53(2)
is declared to be a Final Agency Order “unless set aside by

(2)

the Court of Appeals”.

And UCA 35-1-86 specifically conveys jurisdiction
to the Court of Appeals:

“The Court of Appeals has jurisdiction to review,
reverse or annul ANY ORDER of the commission
.. UCA 35-1-86

° In this manner, the Legislature created a process
where an “Interim Order” concerning issues of law occur-
ring at any point in the adjudicative process can be trans-
formed by administrative review into a “Final Order”, thus
preserving the “Final Order - Only” rule in a manner which
also protected individual’s due process rights. (Rule 5 Utah
R.App.P. for Appeal of Interlocutory Orders is not avail-
able in Administrative Actions per Rule 18 Utah R.App.P.)

: Then pursuant to R568-1-4(M) 1st Sentence, and
R568-1-4(O) 2nd Sentence, judicial review pursuant to UCA
63-46b-14 could be obtained from the Court of Appeals by
Petition for Review.

, And the Legislature sought to assure that the Court of
Appeals would recognize and grant Judicial Review for “Is-
sues of Law” raised at any time during adjudication through
UCA 78-2a-3(4) and the Utah Supreme Court through UCA
78-2-2(6) would enforce such jurisdiction.

. And pursuant to UCA 63-46b-14(2)(b)(i) and UCA
63-46b-14(3)(a), the Legislature provided two special con-
ditions under which exhaustion of administrative remedies
was not required: (1) where administrative remedies were

(3)

“Inadequate”, and (2) where it was proper to “Consider”
the Commission’s “Order on Review” to have issued where
the Commission failed to so issue.

i And under UCA 63-46b-1(4) the Legislature specifi-
cally provided for the award of Summary Judgement if the
criteria of Rule 56 of the Utah Rules of Civil Procedure
were Satisfied.

STATEMENT - PROCEEDINGS IN THE COURTS BELOW

Note: All documents/records cited are included in the record
before the Commission and/or Courts below. Statements
made here-in are to be construed as statements of fact or
belief which Petitioner swears to be true to the best of his
knowledge.

3 On 3/11/96, Petitioner was diagnosed as having suf-
fered an “Employment Related” “Inhalation Injury” while
welding for his employer. On 10/2/96, he was denied
Worker’s Compensation Benefits on grounds of an alleged
pre-existing anxiety condition which was subsequently not
sustained by the medical records, diagnoses, or opinions of
one psychologist and nine doctors as filed with the commis-
sion. Dr. Avery in a letter dated 3/10/97 refuted Respon-
dents interpretation of his medical records, and Petitioner’s
family physician since 1984, when Petitioner was 9 years
old, Dr. Hyldahl, in a letter dated 3/14/97 submitted to the
Commission stated:

“ | reviewed the medical records that I had on
Daniel dating back to 1984. It is apparent on read-
ing these records and reviewing the content that there

(4)

f
E
¥

is nothing in these records to support a notion of a
preexisting anxiety disorder or disorder of syncope.
His record shows no indication of panic attacks, anxi-
ety, depression and no indication of neurologic or
cardiovascular disease.”

a Petitioner moved for and obtained six Uncontested
Motions for Sanctions for Respondents subsequent miscon-
duct including: false statements, false representations, omis-
sions, improper application of statutes, and obstruction of
Discovery including refusal to produce Interrogatories.

3. To escape the abuse of process to which he was be-
ing subjected by Respondents misconduct, Petitioner on 3/
18/97 moved for and later obtained an Uncontested Motion
for Summary Judgement. This Motion met the Rule 56 Utah
R.Civ.P. criteria for award: (1) uncontested averments of 14
November 1996 claim, (2) uncontested Interrogatories to
Respondents of 3 January 1997, (3) two uncontested sworn
affidavits of 18 March 1997, (4) uncontested video of “Un-
safe” work stations authorized by the Court, (5) facts and
arguments of Petitioner’s 18 March 1997 Motion for Sum-
mary Judgement, (6) rebuttal of Respondents basis for de-
nial in Petitioner’s 18 March 1997 Motion in Opposition to
Respondents Motion for Dismissal to which Respondents
failed to reply, (7) approximately 40 uncontested corrobo-
rating exhibits, and (8) the medical opinion of Respondents
own medical specialists (Toxicologists) which refuted Re-
spondents grounds for denial stating in relevant part:

“Your medical condition, currently diagnosed as anxi-
ety/panic disorder was diagnosed subsequent to the
inhalation exposure in question which occurred on

(5)

March 11, 1996. The symptoms from that expo-
sure and in the ensuing weeks and months, as de-
scribed in your medical records, are consistent with
that diagnosis. There is no evidence in your medi-
cal records that this was a pre-existing condition,
nor is there evidence from your work performance
evaluation and attendance prior to this incident that
you had any of these symptoms prior to March 11,
1996...” [Letter from Dr. Hardy and Dr. Lewis-
Younger dated 4/9/97]

Respondents filed no sworn affidavits or other pa-
pers as required by Rule 56 Utah R.Civ.P. to establish
any issues of fact requiring further adjudication. (See
Jensen v. IHC Hospitals Inc., 944 P2d 327, 339).

4. Respondents also concealed “Material” evidence
of unsafe welding conditions as discovered from Utah
Occupational Safety and Health (UOSH) records on 7/
31/97. Respondents withheld these “Material” records
from the Petitioner for 15 months thus impeding
Petitioner’s medical diagnosis and treatment. They also
withheld these records from their own Medical Special-
ist, Pulmonologist Dr. Able in order to obtain a favor-
able medical opinion under fraudulent pretenses, which
opinion they cited in their 3/7/97 Motion to the Commis-
sion seeking dismissal of Petitioner’s claim. In October
1997, Petitioner obtained additional Uncontested Motions
for Sanctions for these acts of concealment and related
misconduct.

3 On 14 July 1997, the ALJ entered an “Order” deny-
ing without finding of fact, Petitioner’s Uncontested Mo-

(6)

(oe gn cc

tions for Summary Judgement and Sanctions [Exh. A, Pg
2a], and on 22 July 1997, the ALJ refused Petitioner’s re-
quest to make finding of facts [Exh. B, Pg 4a].

6. On 7/31/97, pursuant to UCA 35-1-82.53 and R568-
1-4(M) 2nd Sentence, Petitioner properly and timely filed a
Motion for Review on “Issues of Law” under UCA 63-46b-
12 with the Commission in order to obtain a “Final Agency
Order”. There-in, Petitioner cited five issues of law as
grounds for appeal. [Petitioner did not assert constitutional
violations at that time because such would have been im-
proper where statutes provided for subsequent judicial re-

view (Berry by and Through Berry, v. Beech Aircraft, 717
P2d 670, 680)].

The Commission thereafter refused, failed or ne-
glected to release their “Order on Review” as mandated by
UCA 63-46b-12(6)(a), and refused, failed or neglected to
require Respondents to produce Interrogatories to Petitioner
as “Ordered” by the Administrative Law Judge on 3/11/97
[Direction being an “Order” per UCA 35-1-44(7)] and on
7/14/97 [Exh. A&B]. Instead, the Commission issued an
“Order” dated 10/27/97 that Petitioner was to attend a “For-
mal Adjudicative Proceeding/Hearing”

rs On 11/8/97, Petitioner, by letter, gave notice to the
Commission of the inadequacies of his administrative rem-
edies, citing the absence of Interrogatories and the absence
of a response to his Appeal of 7/31/97. And he established
the date of 11/17/97 as the date he would consider his ad-
ministrative remedies exhausted and could then file for re-
view with the Appellate Court [as allowed per UCA 63-
46b-14(2)(b)(i)].

(7)

SS

8. On 12/8/97, Petitioner filed his Petition for Review
with the Court of Appeals, which date was 20 legal days
after 11/17/97, thus satisfying the time constraints of UCA
63-46b-14(3)(a) and Rule 14 Utah R.App.P. Petitioner later
amended his Petition via a revised Docketing Statement to
include the additional Uncontested Moti as obtained in Oc-
tober 1997.

THESE ARE THE 15 UNCONTESTED MOTIONS
NOW SUBMITTED TO THIS COURT FOR
AWARD AS A MATTER OF LAW. [See Exh. F,
Pg 59a].

9. Petitioner also made separate motions for protective
orders on 12/22/97 and for sanctions against Respondents
on 2/2/98 for false representations to the Court of Appeals.

10. On 4 June 1998, the Court of Appeals denied the
Petition for Review of grounds of a lack of subject matter
jurisdiction [Exh. C, Pg 6a].

11. On 10 July 1998, Petitioner filed a Petition for
ReHearing on grounds of: (a) Err where the Court of Ap-
peals had relied upon the wrong statute, (b) Err and Abuse of
Discretion where the exhaustion of remedies was NOT RE-
QUIRED, (c) Err where the proper date for filing limitations
was 17 November 1997, (d) Err where the 15 day time limit
in Varian-Eimac, 767 P2d 569 had been repealed, and (e) Err
for failure to rule on Petitioner’s separate motions.

There-in on pgs 2, 8, 9, 11, 14 & 15, Petitioner raised
the issue of Constitutional due process violations of Amend-
ment XIV, Section 1 of the U.S. Constitution.

(8)

12. On 2 July 1998, the Court of Appeals denied the
Petition for ReHearing without comment [Exh. D, Pg 9a].

13. On 30 July 1998, Petitioner filed a Petition for Writ
of Certiorari with the Utah Supreme Court citing: (a) Err
for failure to reconcile UCA 78-2a-3(2)(a) with the
Worker’s Compensation, Administrative and Jurisdictional
Statuies which provided for review of ANY ORDER, (b)
Violation of the Court of Appeals mandated duty under
UCA 78-2a-3(4) to accept jurisdiction, (c) Err because ex-
haustion of remedies was not required, (d) Disruption of
the legislatively mandated process by the Commission’s
failure to “ssue an “Order on Review” pursuant to UCA
63-46h .2(6)(a), (e) Err for reliance upon 14 July 1997
instead of 17 November 1997 for filing limitations, and
(f) Err for failing to disposition all issues. Petitioner ar-
gued there-in that he satisfied all criteria for Certiorari
under Rule 46a Utah R.App.P., the criteria for Err, and the
criteria for failure to perform duty under Rule
65(B)(d)(2)(B) Utah R.Civ.P. Included there-in were ar-
guments that the Court of Appeals decision violated
Petitioner’s rights under Article I, Section’s 11& 24 of the
Utah Constitution (which by precedent encompass Amend-
ment XIV violations of the U.S. Constitutional, See
Whitmer v. City of Lindon, 943 P2d 226, 228), and there-
in, Petitioner stated:

“Thus the Court of Appeals rewrites the law such
that it abridges Petitioner’s rights under State Law
and the State Constitution. Thus Petitioner is de-
nied the protection of Article XIV, Section 1 of the
U.S. Constitution. This circumstance therefore un-

(9)

dermines the premise and foundation of the
Worker’s Compensation Act because the legal pro-
tection which existed before the Act was instituted
and which were included in the Act have been
abridged. Therefore, unless the Court of Appeals
decision is overturned, the denial of jurisdiction ren-
ders the Worker’s Compensation Act Unconstitu-
tional as applied under Amendment XIV, Section 1
of the U.S. Constitution.” [Pgs 19 & 20 of Petition
for Writ of Certiorari to the Utah Supreme Court]

14. In their response, Respondents omitted to inform
the Supreme Court that the Commission by Order of 28
February 1998 had cancelled the Hearing, and falsely in-
formed the Court that Petitioner had “Failed to attend the
Hearing” or words to that effect, multiple times in their
Response. Petitioner objected, seeking sanction of “De-
fault” for Attorney/Client misconduct. Petitioner requested
leave of the Court to file a sworn affidavit concerning the
32 actions of misconduct to the Supreme Court (See Ex-
tract of Table Exh. G, Pg 65a).

15. On30 October 1997, without allowing Petitioner to
file his sworn affidavit, the Utah Supreme Court denied
the Petition for Writ of Certiorari without comment [Exh.
E, Pg 1lal].

REASONS FOR GRANTING THE PETITION

GENERAL:

: Judicial Review Required:

Where Petitioner was denied the right of Judicial Re-
view of issues of law affecting Constitutional rights,
Petitioner’s due process rights under Amendment XIV, Sec-
tion 1 of the U.S. Constitution are violated (St. Joseph v.
United States, 80 L.Ed 1033, 1041, 1054, 1058; State v.
Finch, 315 P2d 529, 532, 533, Citing 5 other cases; Warren
v. Indiana, 26 N.E. 2d 399, 401, 404, 409) and the Worker’s
Compensation Act (UCA 35-1) is made unconstitutional.

“The Constitutionality of the Workmen’s Compen-
sation Act depends upon the right of judicial review
to determine whether the findings are supported by

evidence.” Merton v. Ind. Comm., 50 N.W.2d 42,
46; See also Johnson v. Ind. Comm., 87 N.W.2d 822,

826; Borgnis v. Falk, 133 N.W. 209, 219

II. Labor Commission Is “Highest Court Of The State”

Regarding The Commission’s Actions and Orders And Pe-
tition Is Timely:

When the Utah Supreme Court denied the Petition
for Writ of Certiorari, a “Final Judgement or Decree” was
rendered denying the availability of Judicial Review on Fed-
eral issues arising during administrative proceedings (United
States v. Richmond, 279 F2d 170, 172), which exhausted
Petitioner’s State remedies. Further, the right of Judicial
Review “afforded” by statute and rule is therefore “not avail-
able”, and Petitioner is denied a substantial right (United
States v. Dowd, 180 F2d 212, 215). Thus, the Labor Com-
mission was defaulted to become the “Highest Court of the
State” in which a decision on Petitioner’s Constitutional
rights could be had. And the Petition is proper under the
precedent of Grovey v. Townsend, 79 L.Ed 1292 where a

(11)

“Federal question that can’t be appealed under state law,
can jump from the lowest court in the State to the highest
court in the land.” (28 U.S.C.A. $1257(a), Commentary, pg
97, 98) where the U.S. Supreme Court is Petitioner’s “ap-
propriate and only remaining remedy”, and UCA 35-1 &
UCA 35-1-88 are questioned.

Petitioner was obligated to comply with Utah’s statu-
tory appeal process, and could not anticipate that the Utah
Courts would deny judicial review. Thus, 30 October 1998,
when the Utah Supreme Court denied the Petition for a Writ
of Certiorari, the last event necessary to create a Constitu-
tional issue occurred.

“{Constitutionality] is satisfied if the Law provides
an injured person an effective and reasonable alter-
native remedy “by due process of law” for the vindi-
cation of his Constitutional Interest.” Berry by and
through Berry v. Beech Aircraft, 717 P2d 670, 680
(Ut. Sup. Ct. 1997)

Thus, the statute of limitations for filing with the U.S.
Supreme Court could not begin to run until after 30 October

1998 when the last action occurred (See Berry by and through
Berry v. Beech Aircraft, 717 P2d 670, 672; Wilson v.

Iseminger, 46 L.Ed 804, 807; Aragon v. Clover Club Foods
Co., 857 P2d 250, 252, 253; on Dickinson .v. Reese
668 P2d 1254, 1257, Meyers v. McDonald, 635 P2d 84, 86,
88) and can not run from earlier dates such as 14 July 1997
where this court held that Federal Jurisdiction cannot be de-
feated by State imposed statute of limitations where here was

no failure to prosecute (Order of R. Telegrapher v. Railway
Exp. Agency, 88 L.Ed 789, 792, 793).

(12)

Thus the Petition regarding the Commission’s viola-
tion of Petitioner’s 14th Amendment Constitutional rights
by the Utah Labor Commission is proper and timely.

Ill. Utah Supreme Court is “Highest Court Of The State”
Regarding The Issue Of Judicial Review, and Petition is

Timely.

When the Utah Supreme Court denied the Petition
for a Writ of Certiorari on 30 October 1998, their action
also constituted a “Final Judgement or Decree” with regard
to the denial of jurisdiction by the Court of Appeals for Ju-
dicial Review. As such, their denial is from the “Highest
Court Of The State where a decision could be had” on the
issue of Petitioner’s Constitutional due process rights to
Judicial Review (United States v. Richmond, 229 F2d 170,
172).

The Petition is therefore proper and timely regarding
the violation of Petitioner’s Constitutional due process rights
under Amendment XIV, Section 1 of the U.S. Constitution,
and the Constitutionality of the Worker’s Compensation Act
(UCA 35-1).

[V. Exceptions To U.S. Supreme Court Final Judgement
Rule Are Satisfied:

The Utah “Decision” adopts the strange logic that
Petitioner’s appeal regarding the denial without finding of
fact of an Uncontested Motion for Summary Judgement can-
not be heard because it is not against a “Final Order from a
Formal Adjudicative Proceeding/Hearing”. Thus the “De-
cision” makes precedent the need to complete the Adminis-

(13)

trative Process which Summary Judgement was designed
and intended to avoid when no issues of fact remain to be
adjudicated.

“To say that a false denial, which defendants are un-
able to justify, must nevertheless put the Plaintiff to
his common-law proof before a jury, although the
result would be a directed verdict in Plaintiff’s favor
as a matter of law, is to exalt the shadow above the
substance.” Engl v. Aetna Life Ins. Co.. 139 F2d
469, 473

If Petitioner acquiesced to a Hearing and won, the
Federal Issue would be mooted, and if he lost, the Federal
Issue (violation of due process rights by denial of Uncon-
tested motion for Summary Judgement without finding of
fact) could not then be heard because subsequent appeal
would of necessity be from the “Final Order from the For-
mal Adjudicative Proceeding/Hearing”.

On this point, the jurisdiction of the U.S. Supreme
Court is clear under the THIRD CRITERIA as stated in
Cox Broadcasting Corp. v. Cohn, 43 L.Ed 2d 328, 338 -
341.

A parallel argument is also made for the
Commission’s failure to rule or denial without finding of
fact on the other 14 Uncontested Motions now before this
Court. [Exh. F, Pg 59a]

This petition also qualifies because there is no possi-
bility of piecemeal review of Federal Issues (Flint v. Ohio,
689 L.Ed 2d 489, 492) because the fundamental Worker’s

(14)

Compensation claim has no federal issues, and all Federal
issues raised by the improper actions of Respondents the
Commission or Utah Courts are included (Gillespie v. United
States Steel Corp., 13 L.Ed 199, 203, 204. Further, the is-
sue of the Constitutional Reasonableness of severe sanc-
tions as a deterrent to egregious misconduct is fairly included
and has been briefed on 2 June 1998 to the Court of Ap-
peals, wherein Petitioner relied upon this Court’s precedent
of TXO Productions v. Alliance Resources, 125 L.Ed 2d
366, 370 for Pattern of Misconduct, and other cases of mis-
conduct (Wilson v. IMP Inc., 558 N.W.2d 132, 134, 143,
144 for Interference with Medical Treatment, VanDY KE v.
Mt. States Coin Machine Dist., 758 P2d 962, 966 for Abuse
of Process with Advice of Attorney; and Amica Mut. Ins.
Co. V. Schettler, 768 P2d 950, 955, 962 for Coercion, In-
timidation, Threats and Interference with Judicial Process
by Client and Attorney).

Thus exceptions to this Court’s Final Order Rule are
satisfied and this petition is proper.

Issues Arising From Commission’s Actions or Orders:

V. Commission’s Actions and Orders Are Unconstitu-
tional Where Arbitrary, Unfair, Unreasonable, Or Oppres-
sive:

The U.S. Ninth Circuit Court of Appeals has held
that:

“Workmen’s Compensation Acts, to be Constitu-
tional, must not be arbitrary, unreasonable, or funda-
mentally unfairor oppressive.” (Marshall v.

(15)

ld

Mahony, 56 F2d 74, 78; as followed by the D.C. &
Seventh Circuit Courts in Johnson v. Britton, 290 F2d
355, 359 and Strand v. Hansen, 614 F2d 572, 576).

Review of Utah case law clearly shows that the
Commission’s denial of Uncontested Motions for Summary
Judgement and Sanctions without finding of fact and/or the
failure to rule on other Uncontested Motions or enforce their
own orders all violate these criteria for Constitutionality.

. ARBITRARY: Where Uncontested Motions are de-
nied without finding of fact or where the Commission fails
to believe and act (Baker v. Ind. Comm., 405 P2d 613, 615;
Jones v. California Packing, 244 P2d 640, 641; Spencer v.
Ind. Comm., 40 P2d 188, 189)

. IMPROPER: Where the Commission failed to take
motions as they were presented (Milkovich v. Ind. Comm.,
64 P2d 1290, 1292)

. REVERSIBLE ERR: Where Uncontested Motions
were denied without finding of fact (Nyrehn v. Ind. Comm.,
800 P2d 330, 335)

e UNFAIR: Where Commission failed to enforce its
own orders for Respondents to produce Interrogatories to
Petitioner (Bunnell v. Ind. Comm., 740 P2d 1331, 1333)

7 CONTRARY TO THE WHOLE RECORD BE-
FORE THE COMMISSION: Where the whole record sup-
ports award to Petitioner (Grace Drilling v. Ind. Comm..,
776 P2d 63. 67 & 70)

(16)

. CONTRARY TO STATUTES GOVERNING COM-
PENSABILITY CRITERIA: Where Petitioner’s 14 Novem-
ber 1996 claim, and 18 March 1997 Uncontested Motion for
Summary Judgement demonstrated compliance with award
criteria of Allen v. Ind. Comm., 729 P2d 15, 16, 18, 19, 25-26)

a UNJUST AND OPPRESSIVE: Where the Commis-
sion tried to force Petitioner to a Hearing absent his due pro-
cess rights to Interrogatories and other Discovery, and refused,
failed or neglected to provide an “Order on Review” regard-
ing his appeal as mandated by statute (Amica Mut. Ins. Co. v.
Schettler, 768 P2d 950, 962; Bunnell v. Ind. Comm., 740 P2d
1331, 1333)

UNJUST, OPPRESSIVE AND CONTRARY TO
THE SPIRIT OF THE ACT: Where Petitioner was subjected
to hardship; forced to carry the burden of his injury; forced to
prove his employer’s negligence; forced to endure an abuse
of process vhich is not simple, adequate or speedy; and where
doubt is not resolved in the favor of the injured worker (Baker
v. Ind. Comm., 405 P2d 613; Barber v.Ind. Comm., 135 P2d
266; Fred Meyer v. Ind. Comm., 800 P2d 825 Citing 3 oth-
ers; Park Utah Consol. Mines Co., Wilstead v. Ind. Comm.,
407 P2d 69236 P2d 979 Citing 8 others: Taslich v. Ind.
Comm., 262 P2d 281, 283;

: CONTRARY TO AWARD CRITERIA FOR SUM-
MARY JUDGEMENTS: Where criteria for Summary Judge-
ment were met as presented at Indenture 3.0, Pg 5 & 6 here-

in (Dupler v. Yeates, 351 P2d 624, 636, 637; Engl v. Aetna
Life Ins. Co., 139 F2d 469, 472, 473; James v. Honaker Drill-
ing Inc., 254 F2d 702, 706; Amica Mut. Ins. Co., v. Schettler,

(17)

-
&
&

768 P2d 950, 957; Jensen v. IHC Hospitals Inc., 944 P2d
327, 339);

: AN ABUSE OF DISCRETION: Where the Commis-
sion denied without finding of fact or failed to rule when all
conditions precedent to award was satisfied, and statutory or
rule language was permissive or mandatory (Deseret Sav. Bank
v. Francis, 217 P 1114, 1115-1116; In Re. Owens’ Estate, 85 P
277, 279: Pearce v. N.D. Workmen’s Compensation Bureau
274 N.W.2d 587, 590; Tice v. State Ind. Acc. Comm., 195 P2d
188, 192; Supervisors v. United States, 18 L.Ed 419, 423).

Thus, the Commission’s conduct of the adjudicative
proceedings under Utah precedents violates the constitutional-
ity criteria of Marshall v. Mahony, 56 F2d 74, 78; Johnson v.
Britton, 290 F2d 355, 359 and Strand v. Hansen, 614 F2d 572,
576.

The Petition is therefore proper to determine if
Petitioner’s 14th Amendment rights were violated, and if the
Worker’s Compensation Act (UCA 35-1) is rendered Uncon-
stitutional.

VI. The Commission’s Abuse Of Discretion Is Unconsti-
tutional:

The U.S. Supreme Court has held that it is an abuse of
discretion for a public official to deny a remedy stated in per-
missive language where the attached criteria are satisfied.

“where power is given to public officers, in the lan-
guage of the Act before us, ... whenever the public in-
terest or individual rights call for its exercise - The lan-

(18)

guage used, though permissive, is in fact peremptory.
What they are empowered to do for a third person, the

law requires shall be done.” Supervisors v. United States,
18 L.Ed 419, 423

In contrast is the statutory language governing the dis-
cretion of the Commission:

“The commission may make its investigation in such
manner as in its judgement is best calculated to ascer-
tain the substantial rights of the parties and to carry out
justly the spirit of the Workmen’s Compensation Act.”
UCA 35-1-88

From the actions of the Commission, it is clear that they
interpret discretion to accrue to their benefit rather than to Pe-

titioner as per Supervisors v. U.S. Id.

Thus, even though the Uncontested Motions met the
criteria of UCA 63-46b-1(4) and Rules 1, 11, 37, 54 & 56 of
the Utah R.Civ.P., the Commission under UCA 35-1-88 may
have believed they had the discretion to simply ignore the lan-
guage of these Rules and either refuse to rule on these Uncon-
tested motions or deny them without finding of fact. But such
an interpretation is in direct conflict with this Court’s prece-
dent of Supervisor’s v. United States, Id.

Where the discretionary practices of the Commission
and the language of UCA 35-1-88 conflict with the precedent
of Supervisor’s v. United States, 18 L.Ed 419, 423, Petitioner’s
Constitutional rights under Amendment XIV, Section 1 of the
U.S. Constitution are abridged and the Worker’s Compensa-
tion Act (UCA 35-1) is rendered Unconstitutional.

(19)

ee

Further, the language of UCA 35-1-88 is sufficiently
broad that it’s application according to the Commission's
“Judgement” may abridge Constitutional rights of individu-
als, and is simultaneously sufficiently vague that no Pro Se
individual can understand how a proceeding is io be con-
ducted. Rule R568-1-4(N) provides that the Utah Rules of
Civil Procedure be followed during Discovery “except as
modified by the express provisions of 35-1-88”. But UCA
35-1-88 contains no “express” language, and thus the appli-
cation of discretion is left to the whim of the Commission
or Administrative Law Judge, giving rise to infringements
of due process rights and unequal treatment under the law.

Petition is therefore proper to address the constitu-
tionality of UCA 35-1-88 as it governs the discretion of the
Commission and the violation of Petitioner’s 14th Amend-
ment Constitutional rights where the Commission abuses
their discretion per the precedent of Supervisor’s v. United
States, 18 L.Ed 419, 423.

VII. Petitioner Is Entitled To Award As A Matter Of Law:

Petitioner’s 15 Uncontested Motions [Exh. F, Pg 59a]
_as presented to the Court of Appeals are here-in presented
for Award by this is Court as a “Matter of Law” because the
denial without finding of fact or refusal to act violates
Petitioner’s 14th Amendment Constitutional Rights and Pe-
titioner has no remedy within the State as evidenced by the
Utah Court’s denial of Judicial Review.

Had finding of fact been properly made on each of
the 15 Motions Petitioner argues that each: (1) was properly
made, (2) was properly substantiated, (3) Motions consti-

(20)

tuted adequate notice before being submitted for decision,
(4) refuted respondents pleadings, (5) were supported by
the whole record before the Commission, (6) met the crite-
ria for award, (7) were supported by fact and argument there-
in, (8) were not contested, disputed or denied by Respon-
dents, and (9) where Respondents failed to file any sworn
affidavits raising any issue of fact requiring adjudication (
Dupler v. Yeates, 351 P2d 624, 636, 637; Engl v. Aetna
Life Ins. Co., 139 F2d 469, 472, 473; James v. Honaker
Drilling Inc., 254 F2d 702, 706; Amica Mut. Ins. Co., v.

Schettler, 768 P2d 950, 957; Jensen v. IHC Hospitals Inc.,
944 P2d 327, 339), the failure of the Commission to award

is arbitrary, unjust, unfair, oppressive and an abuse of dis-

cretion under Supervisor’s v. United States, 18 L.Ed 419,
423 et. al.

Thus where there is no right of Judicial Review
“AVAILABLE” to Petitioner within the State of Utah, peti-
tion to the U.S. Supreme Court is proper to determine if
Petitioner is entitled to each of these Uncontested Motions
as a matter of law.

Issues Arising From Court of Appeals Denial Of Jurisdic-
tion:

VIII. The Court of Appeals Decision Err’s. And
Abuses Discretion

VIIA. Plain Err

Where the Utah Courts faii to recognize the plain

language (Ailred v. Utah State Retirement Board, 914 P2d
1172, 1175) and intent of the statutes and rules governing

(21)

appeals and subsequent Judicial review of ANY ORDER
of an Administrative Law Judge as presented at Pgs 1 thru 4
here-in, the Utah Courts commits plain err, and this Petition
is proper.

VIIIB. The Court of Appeal’s Decision Err’s by Fail-
ure to Harmonize Their Selected Statute UCA 78-2a-3(2)(a)
With The Other Statutes Conferring Jurisdiction to th urt

of Appeals for ANY ORDER of the Commission Including
UCA 35-1-82.53 A _35-1-86 A 63-46b-14 CA

78-2a-3(4), and UCA 78-2-2(6):

The Court’s “DECISION” is contrary to their DUTY
to harmonize under Utah precedent (Bennion v. Sundance
Development Corp., 876 P2d 1233, 1235; Jerz v. Salt Lake
County, 822 P2d 772, 773; De Baritault v. Salt Lake City
Corp., 913 P2d 743, 747) and is contrary to established prin-
ciples of construction observed by other jurisdictions as sum-
marized in 99 C.J.S. Workmen’s Compensation, $20, f. Con-
struction of Acts, Pgs 125 - 128

Had the Utah Courts discharged their duty to harmo-
nize, the Worker’s compensation statutes would have pre-
vailed because they are the more specific (Bateman v. Board
of Examiners, 322 P2d 381; Jensen v. IHC Hospitals Inc.,
944 P2d 327, 331, and Pan Energy v. Martin, 813 P2d 1142,
1145 Citing other precedents), and the Courts selected stat-
ute UCA 78-2a-3(2)(a) would have failed because its adop-
tion nullifies the effect of the more specific statutes UCA
35-1-82.53, UCA 35-1-86, UCA 63-46b-14, UCA 78-2a-
3(4), and UCA 78-2-2(6) (In Re Utah Savings and Loan
Assoc., 442 P2d 929, 932, 932 N.1).

VIIC. The “Decision” Err’s by Restricting Review
to “Final Orders Issuing From Formal Adjudicative Pro-
ceedings/Hearings” where Utah Statutes Specifically Pro-
vide for Judicial Review of ANY ORDER by the Court of

Appeals.

The “DECISION” is contrary to Utah precedents

(Blue Cross and Blue Shield v. State, 779 P2d 634, 638;
Harmon v. Odgen City Civil Service Commission , 890 P2d

4, 6) and violates the separation ofpoweis criteria cited in

99 C.J.S. Workmen’s Compensation, Pgs 120 & 121 [Cita-
tions Omitted].

The decision rewrites the act to change the class from
“Any Order” to only those “Final Orders from Formal Ad-
judicative Proceedings or Hearings”. Thus they establish a
class not contemplated by the clear language statutes UCA
35-1-82.53 and UCA 35-1-86 (Brendle v. City of Draper,
937 P2d 1044, 1047), which is contrary to Utah precedent
and the holdings of other jurisdictions, and directly violates
the equal protection provisions of Amendment XIV, Sec-
tion 1 of the U.S. Constitution.

VITID. The Court of Appeals Err’d and Abused their
Discretion Holding Thai the Exceptions to Exhaustion of
Administrative Remedies under UCA 63-46b-14 Did Not

Apply:

By failing to issue their “Order on Review” as man-
dated by statute UCA 63-46b-12(6)(a): (a) the Commission
lost their jurisdiction per Herr v. Salt Lake City, 525 P2d 728,
729, (b) Petitioner was allowed to “Consider” the “Order on
Review” to have issued under the rule that the intent of the act

(23)

must be reviewed (De Baritault v. Salt Lake City Corp., 913
P2d 743, 746) where the intent as shown by UCA 63-46b-13

and UCA 63-46b-14(3)(a) was to allow “Consideration” in
instances where the Commission did not issue such “Order on
Review”, and (c) the Court had a mandatory duty to waive
exhaustion of remedies and accept jurisdiction per the permis-
sive language of UCA 63-46b-14(2)(b)(i) where Petitioner had
demonstrated the inadequacies of his administrative remedies
in his letter of 8 November 1997 as attached to his Petition for
Review (Supervisors v. United States, 18 L.Ed 419, 423; Deseret
Sav. Bank v. Francis, 217 P 1114, 1115-1116; In Re. Qwens’
Estate, 85 P 277, 279; Pearce v. N.D. Workmen’s Compensa-
tion Bureau, 274 N.W.2d 587, 590; Tice v. State Ind. Acc.
Comm., 195 P2d 188, 192).

VIIIE. The Court of Appeals Err’s When They Rely
Upon 14 July 1997 Instead Of 17 November 1997 As The
Date From Which The Petition Should Have Been Filed From.

Petitioner clearly followed Statute UCA 35-1-82.53 and
Rule R568-1-4(M) 2nd Sentence in filing his Motion for Re-
view with the Commission 17 days after the ALJ’s “Order” of
denial issued on 14 July 1997. Thus he complied with UCA
63-46b-12. Petitioner could not anticipate that the Commis-
sion would refuse to perform their statutory duty and fail to
issue their “Order on Review” by the date of 17 November
1997.

The Court of Appeal’s err’s by reliance on 14 July 1997
rather than 17 November 1997 as the date for the running of
limitations. Limitations cannot run until the last event has oc-
curred (Aragon v. Clover Club Foods, 857 P2d 250, 252, 253;
Berry by and through Berry v. Beech Aircraft, 717 P2d 670,

(24)

672; See also Wilson v. Iseminger, 46 L.Ed 804, 807; Becton
Dickinson & Co. v. Reese, 668 P2d 1254, 1257). And per
Meyers v. McDonald, 635 P2d 84 the decision violates the
“Open Courts Provision” of Art. I, Sec. 11 of the Utah Consti-
tution). And the U.S. Supreme Court has held in Order of R.

Telegrapher’s v. Railway Exp. Agency, 321 U.S. 349, 350; 88
L.Ed 789, 792, 793 that where claims are timely pursued that

the statute for an earlier determination carinot “destroy a claim
because the period of actual contest over it in a ... tribunal ex-
tends beyond the [latter] limitations period.”

VITIF. The Court of Appeals Reliance On Varian-
Eimac Is Err

The Court of Appeals reliance on the 15 day time limit
of Varian-Eimac, 767 P2d 569 is err because the 15 day time
limit under UCA 35-1-82.55 was repealed in 1988 (Varian-
Eimac, 767 P2d 570 n. 1) and is thus not applicable. Thus
the precedent of Varian-Eimac is not applicable.

The proper time limits are the 30 day periods of UCA
63-46b-14(3) and Rule 14 Utah R.App.P., and where
Petitioner’s filing on 8 December 1997 was only 20 calen-
dar days after 17 November 1997, his Petition met the ap-
plicable timelines for filing.

VITIG. The Court of Appeals Err’d by Failing to Rule
on Petitioner’s Separate Motions for Protective Order and

Sanctions Against Respondents.

Such is reversible err requiring remand (Brendle v.
City of Draper, 937 P2d 1044, 1048, 1049).

(25)

VIILTH. mmarization IT f Di ion

Given the err and abuse of discretion of the Court of
Appeals “Decision” as shown above, the Petition should be
granted to reverse err’s which infringe Petitioner’s 14th
Amendment Constitutional rights, and render the Utah
Worker’s Compensation Act (UCA 35-1) Unconstitutional.

IX. Violation of Duty by the Utah Courts

The denial of Judicial Review also results from the
Utah Court’s violation of duty under precedent, Statute and
Constitutional Provisions.

: The Court of Appeals violated their self imposed duty
under Bennion v. Sundance Development Corp., 876 P2d
1232, 1235 to harmonize statutes.

: The Court of appeals violated their Statutory duty
under UCA 35-1-86 and UCA 78-2a-3(4) to accept Juris-
diction .

r The Supreme Court of Utah violated their self im-

posed duty under De Baritault v. Salt Lake City Corp., 913
P2d 743, 747 and Jerz v. Salt Lake County, 882 P2d 770,

773 to harmonize statutes.

. The Supreme Court of Utah violated their self im-
posed duty under Salt Lake City v. Ohms, 881 P2d 844, 847
(Citing 3 other precedents) to examine Petitioner’s challenge
to the Constitutionality of the Worker’s Compensation Act
(UCA 35-1) and the violation of his 14th Amendment Con-
stitutional rights.

(26)

. The Supreme Court of Utah violated their Statutory
duty under UCA 78-2-2(6) and their Constitutional duty un-
der Article VIII, Section 3 when they denied Certiorari and
failed to enforce the Jurisdiction for Judicial Review before
the Court of Appeals.

: The Supreme Court of Utah abused their discretion
where Petitioner satisfied Rule 46a criteria for Certiorari
(Supervisor’s v. United States, 18 L.Ed 419, 423).

These violations of duty and discretion deprived Pe-
titioner of his due process right to Judicial Review in a Court
of Law on Issues of Law arising during the course of
Worker’s Compensation proceedings.

Although this Court and other Federal and State Ju-
risdictions have held that a right of Judicial Review is nec-
essary to protect individual constitutional rights (St. Joseph
v. United States, 80 L.Ed 1033, 1041, 1054, 1058; State v.
Finch, 315 P2d 529, 532, 533, Citing 5 other cases; Warren
v. Indiana, 26 N.E. 399, 401, 404, 409) and other jurisdic-
tions have held similarly with respect to Worker’s Compen-
sation Acts (Merton v. Ind. Comm., 50 N.W.2d 40, 46; See
also Johnson v. Ind. Comm., 87 N.W.2d 822, 822; Borgnis
v. Falk, 133 N.W. 209, 214), this Court should now take
this case and determine if a right of Judicial Review must
exist in Worker’s Compensation Proceedings to protect rights
from the misconduct of employer’s or their insurer’s or the
improper conduct of proceedings prior to the issuance of a
“Final Order” as per Question 6 posed to this Court,and to
determine if Petitioner’s 14th Amendment rights were vio-
lated by the Utah Court’s failure to perform duties.

(27)

Closure

Pg

X. The Issues of This Case are Important Federal Is-
sues of National Interest:.

Where the Utah “DECISION” clearly violates Utah
precedents and conflicts with the decisions of other juris-
dictions and this Court, the Petition should be granted.

Where this Court and other jurisdictions have held
that there must be judicial review to protect individual con-
stitutional rights, and where the “DECISION” denies such
review, the Petition should be granted.

Where Federal Courts have held Worker’s Compen-
sation Acts to be Unconstitutional if arbitrary, unreason-
able, or fundamentally unjust or oppressive, and where there
‘s Prima Facie evidence that the Utah Commission’s con-
duct under UCA 35-1 violates these criteria, the Petition
should be granted.

Where the plain language of Utah statutes governing
administrative and judicial reviews is in conflict with the
“DECISION” of the Utah Courts, and where the Court’s
Err infringes Petitioner’s 14th Amendment Constitutional
rights, the Petition should be granted.

Where the Federal issues cannot later be raised if State
Court action is allowed to be completed, the Petition should
be granted.

Where the case raises the issue of protection of funda-
mental Constitutional rights during Worker’s Compensation

(28)

proceedings, and where injured workers are least able by
virtue of injury, loss of wages, education and inability to
obtain legal representation to defend against egregious mis-
conduct by more powerful employers and insurers, and
where there is risk that continued state litigation will
force Petitioner to withdraw because of financial pressures,
this Petition should be granted (Gillespie v. United States
Steel Corp., 13 L.Ed 199, 203, 204).

Petitioner recognizes that denial of this Petition by the
U.S. Supreme Court would not normally constitute a judge-
ment on the merits, but asserts that a denial would have ad-
verse National consequences. This case is unusual. Under
the Utah precedent Savage v. Educators, 908 P2d 862, the
Utah Supreme Court held that an injured worker has no cause
of action against a Worker’s Comp. insurer for “Bad Faith
Practices” because there is no privity of contract. Thus, un-
less severe sanctions are Constitutionally acceptable as a de-
terrent to egregious misconduct, injured workers who are least
able to defend themselves, especially those who are Pro Se,
are at the mercy of outrageous misconduct by insurance Car-
riers which is contrary to the “Spirit of the Act” and violates
their due process rights.

The denial of this Petition, although it would not be
a judgement by this Court on the Merits, would never-the-
less encourage employers and insurers, and particularly
the National Insurer involved in this case, that egregious
and/or outrageous misconduct will be tolerated by the
Courts, and can be used to unfairly avoid compensation
payments as evidenced by their self serving letter of 21 Feb-
ruary 1997 [Exh. H, Pg 71a]

(29)

Further, denial will perpetuate the Utah Court’s re-
fusal to hear appeals when Uncontested Motions for Sum-
mary Judgement and Sanctions are arbitrarily, unjustly and
improperly denied and injured workers 14th Amendment

Constitutional rights are infringed. Surely, the right to Sum-
mary Judgement must be jealously protected.

If this Court condones any or all of the forms of
misconduct alleged to be fairly included in the case [Exh.
G, Pg 65a], then this Court should grant the Petition and
rule accordingly that all injured workers in all jurisdic-
tions may receive equal treatment under such a standard
of law.

But if this Court finds any or all of these forms of
misconduct [Exhibit G, Pg 65a] or the “Decision” of the
Utah Courts to be contrary to the “Rule of Law”, subver-
sive to Worker’s Compensation Acts in general, contrary
to individual rights or repugnant to the U.S. Constitution,
then the Petition should be granted to establish for all ju-
risdictions the rights of injured workers throughout
Worker’s Compensation proceedings as per Question 6.

Thus Petitioner argues that the Petition for Writ of
Certiorari to this Court should be granted so that both par-
ties may have their day in Court, and the National issue of
Question 6 may be answered..

CONCLUSION

Petitioner thanks the Court for the opportunity to
be heard, and respectfully prays that his Petition for a Writ
of Certiorari be granted.

(30)

Respectfully Submitted This a3 Day of January 1999

aviel . Ck

Daniel Scott Cox
Pro Se

APPENDIX A

EXHIBIT DESCRIPTION PAGE NO.

A 14 July 1997 “Order”
denying Petitioner’s Uncontested

Motions without finding of fact ............:ceeeee 2a
B 22 July 1997 “Order”
refusing to make finding Of fACt ........-:++seeeeesee 4a

Labor Commission FAX COVER SHEET
State of Utah 1 PAGES
DATE: JULY 14, 1997
FROM: JUDGE GEORGE

ADJUDICATION
DIVISION
FAX#; 530-6804 TEL# 530-6865
TO FAX# TEL#
Cox, D (By Mail)
Dyer, M 521-7965 521-7900
Re: Cox, D 961068

Mr. Cox - you may disregard the impending Cismissal portion
of my 4/21/97 fax as I understand you have provided the re-
quested hair sample, and I have the further impression that you
have or will co-operate in the respondents medical examina-
tions.

Having said that, we will get to the merits of this case
by proceeding toward a hearing. Accordingly, both your Mo-
tion for Summary Judgement and the Respondents Motion for
Dismissal are denied. Your requests for sanctions are denied.
Your request for a transcript is denied. Your options in that
respect are to hire a court reporter or purchase a copy of the
PHC tape from Ms. Mele or come and listen to a copy of the
tapes here. The latter two are much less expensive than the
former if you just want to refresh yourself on that proceeding.
However, the former is better fur purposes of appeal.

Mr. Dyer - pursuant to your 3/17/97 letter, please advise
within 20 days, 1) when Mr. Cox’s outstanding discovery will

2a

be answered, if not already done; 2) what, if any respon-
dents medical exams remain to be done, or when they are
scheduled for. “s/DJG”
CERTIFICATE OF SERVICE
| certify that I have filed the foregoing FAX to the
following by first class prepaid postage this 14th day of
JULY, 1997:
“DANIEL COX, 1199 CLIFFSIDE DR, LOGAN UT 84321

“s/JCarb...”

3a

Labor Commission FAX COVER SHEET
State of Utah 1 PAGES
DATE: JULY 22, 1997
FROM; JUDGE GEORGE
ADJUDICATION DIVISION
FAX#; 530-6804 TEL# 530-6865

TO FAX# TEL#

Cox, D (By Mail)

Dyer, M 521-7965 521-7900
Re: Cox, D 961068

Mr Cox - your 7/26(?)/97 request for justification and find-
ings of fact on interim motions is denied.

I remind you that you have chosen to act as your own
attorney. Accordingly, you are presumed to know the law

and procedure, so your anticipations of “guidance” from
me are misplaced.

Likewise as to forms and their utilization.
“s/DLG”
CERTIFICATE OF MAILING - I certify that I have mailed
the foregoing FAX to the following by first class prepaid
postage this 28th day of JULY, 1997:

Daniel Cox, 1199 Cliffside Dr., Logan, Utah 84321

4a

APPENDIX B

EXHIBIT DESCRIPTION PAGE NO.

C 4 June 1998 “Memorandum
Decision” by Utah Court of Appeals
denying jurisdiction for Judicial
FU OT ci ds sncncaihasecpenaratseoiineedeseiieealSekinsidencaacvoconenieeies 6a

D 2 July 1998 “Order”
denying without comment Petitioner’s
PCUMIOR TOU PRGTIOREIINE nesesccncntavsssseevesevassresaccotesnecsxerss 9a

Sa

FILED

JUN 04 1998

COURT OF APPEALS
IN THE UTAH COURT OF APPEALS

Daniel Scott Cox : Memorandum Decision
Petitioner : Not for official
publication
V. : Case No. 970721-CA

Proform Fitness/Weslo:

Liberty Mutual Ins. Filed
Company; and/or Utah (June 4, 1998)
State Industrial
Commission

Respondents

Original proceeding in this Court

Attorneys: — Daniel Scott Cox, Logan, Petitioner, Pro Se
Michael E. Dyer, Salt Lake City, for Kespon
dents Proform Fitness/Weslo and Liberty
Mutual Insurance Company

Before Judges Billings, Greenwood and Jackson
PER CURIAM:

This case is before this court on a sua sponte motion
for summary dismissal and on petitioner’s motion for pro-
tective orders and motion for summary reversal. Respon-

dents also request an award of sanctions against petitioner.

6a

This court has subject matter jurisdiction over “final
orders and decrees resulting from formal adjudicative pro-
ceedings of state agencies” including the Utah Labor Com-
mission. Utah Code Ann. $ 78-2a-3(2)(a) (1996). Utah
Code Ann $ 63-46b-14 (1997) governs “judicial review of
final agency action.” With limited exceptions not appli-
cable in this case, “[a] party may seek judicial review only
after exhausting all administrative remedies available.” Id.
$ 63-46b-14(2). A party must file a petition for judicial
review of final agency action with the appellate court within
30 days after the date of that the order constituting the final
agericy action is issued. See Id. $ 63-46b-14(3); Utah
R.App.P. 14(a).

Petitioner filed a request for judicial review of the
July 14, 1997 of an administrative law judge denying
Petitioner’s motion for summary judgement and respondent’s
motion to dismiss. The ALJ ordered the case to proceed to
an evidentiary hearing. Because no hearing has occurred in
the agency, no agency decision constituting a final agency
action has issued. Accordingly, Petitioner has not exhausted
his administrative remedies, and judicial review of the July
14, 1997 order is not available.

This court lacks subject matter jurisdiction and must
dismiss the petition for judicial review. See Varian-Eimac
v. Lamoreaux, 767 P2d 569, 570 (Utah Ct. App. 1989)

Respondent seeks sanctions against Petitioner for fil-
ing a frivolous action in this court. Petitioner has filed nu-
mercus documents in this court, including letters pertaining
to settlement negotiations and “Notices” of various allega-
tions. Petitioner is here-by put on notice that filing such

7a

materials in this court is inappropriate, particularly given
the ongoing agency proceedings and this court’s lack of sub-
ject matter jurisdiction. We deny the request for sanctions
without prejudice to renew if petitioner continues to make
meritless filings in this court.

“s/Judith M. Billings” Judge
“s/Pamela T. Greenwood Judge
“s/Norman H. Jackson” Judge

FILED
Utah Court of Appeals
Jul 2 - 1998

Julia D’ Alesandro
Clerk of the Court

IN THE UTAH COURT OF APPEALS

Daniel Scott Cox : ORDER
Petitioner
V. - Case No. 97021-CA

Utah State Industrial
Commission; Proform
Fitness/Weslo and/or
Liberty Mutual
Insurance Company
Respondents

This matter is before the court upon petitioner’s peti-
tion for rehearing, filed June 11, 1998.

IT IS HEREBY ORDERED that the petition for re-
hearing is denied

Dated this 2nd day of July, 1998.
FOR THE COURT:

“s/Norman H. Jackson” Judge

Ya

APPENDIX C

EXHIBIT DESCRIPTION PAGE NO.

E 30 October 1998 “Order”
of Utah Supreme Court denying
without comment Petitioner’s
Petition for Writ Of Certiorart .......0...ccsccoscessecensesccosesss lla

1Oa

IN THE SUPREME COURT OF THE STATE OF UTAH

Daniel Scott Cox

Petitioner
VS. No. 981422-SC
Utah State Industrial 970721-CA
(Labor) Commission; 961068

Proform fitness/Weslo

and/or Liberty Mutual

Insurance Company
Respondent

ORDER

This matter is before the Court upon a petition for
writ of certiorari, filed pursuant to Rule 48, of the Utah Rules
of Appellate Procedure.

IT IS HEREBY ORDERED that the petition for writ
of certiorari filed on July 30, 1998 by the petitioner Daniel
Scott Cox is denied.

FOR THE COURT;

OCT. 30 1998 “s/Richard C. Howe’
Date Chief Justice

APPENDIX D
Constitutional Provisions:
Article I, Section 11, Utah Constitution

“All courts shall be open, and every person, for an
injury done to him in his person, property or reputa-
tion, shall have remedy by due course of law, which
shall be administered without denial or unnecessary
delay, and no person shall be barred from prosecuting
or defending before any tribunal in this State, by him-
self or counsel, any civil cause in which he is a party.”

Article I, Section 24, Utah Constitution

“All laws of a general nature shall have uniform op-
eration.”

Article VIII, Section 3, Utah Constitution

“The Supreme Court shall have original jurisdiction to
issue all extraordinary writs and to answer questions of
state law certified by a court of the United States. The
Supreme Court shall have appellate jurisdiction over
all other matters to be exercised as provided by statute,
and power to issue all writs and orders necessary for
the exercise of the Supreme Court’s jurisdiction or the
complete determination of any issue.”

Amendment XIV, Section 1, U.S. Constitution

“All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of

12a

the United States and of the State wherein they re-
side. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States, nor shall any State deprive any
person of life, liberty, or property without due pro-
cess of law; nor deny to any person within its juris-
diction the equal protection of the laws.

Worker’s Compensation Act Statutes:

UCA 35-1

“TITLE 35 LABOR - INDUSTRIAL COMMIS-
SION ... CHAPTER 1, WORKERS’ COMPENSA-
TION”

UCA 35-1-44(7)

‘Order’ means any decision, rule, regulation, direc-
tion, requirement or standard of the Commission, or
any other determination arrived at, or decision made,
by the Commission.” 1995

UCA 35-1-82.53(1) & (2)
“(1) Any party in interest who is dissatisfied with
the order entered by an administrative law judge may
seek review of that order with the Commission by
complying with the Commission’s rules governing
that review.” 1988

“(2) The order of the Commission on review is final,
unless set aside by the Court of Appeals.” 1988

13a

UCA 35-1-82.55

“Repealed” 1987, 1988

UCA 35-1-86

“The Court of Appeals has jurisdiction to review,
reverse, or annul any order of the Commission, or to
suspend or delay the operation or execution of any
order.” 1988

UCA 35-1-88

“Neither the commission nor the hearing examiner is
bound by the usual common law or statutory rules of
evidence or by any technical or formal rules of proce-
dure, other than as herein provided or as adopted by
the commission pursuant to this act. The commission
may make its investigation in any manner as in its
judgement is best calculated to ascertain the substan-
tial rights of the parties and to carry out justly the spirit
of the Workmen’s Compensation Act.” 1965

Administrative Procedures Act Statutes:

UCA 63-46b-1(4)

“This chapter does not preclude an agency, prior to
the beginning of an adjudicative proceeding ... from
... (b) granting a timely motion to dismiss or for sum-
mary judgement if the requirements of Rule 12(b) or
Rule 56, respectively, of the Utah Rules of Civil Pro-
cedure are met by the moving party ...” 1996

14a

UCA 63-46b-12

“(1)(a) If a statute or the agency’s rules permit par-
ties to any adjudicative proceeding to seek review of
an order of the agency or by a superior agency, the
aggrieved party may file a written request for review
within 30 days after the issuance of the order with
the person or entity designated for that purpose by
the statute or rule.” 1988

“(6)(a) Within a reasonable time ... the agency or supe-
rior agency shall issue a written order on review.” 1988

UCA 63-46b-13

“Agency Review - Reconsideration. (3)(b) If the
agency head or the person designated for that pur-
pose does not issue an order within 20 days after the
filing of the request, the request for reconsideration
shall be considered to be denied.” 1988

UCA 63-46b-14

“(1) A party aggrieved may obtain judicial review of
final agency action, except in actions where judicial
review is expressly prohibited by statute.” 1985

“(2) A party may seek judicial review only after ex-
hausting all administrative remedies available, except
that: (a) the court may relieve a party seeking judicial
review of the requirement to exhaust any or all admin-
istrative remedies if: (i) the administrative remedies are
inadequate; or (ii)exhaustion of remedies would result

lSa

in irreparable harm disproportionate to the public ben-
efit derived from requiring exhaustion.” 1988

“(3)(a)A party shall file a petition for judicial review
of final agency action within 30 days after the date
that the Order constituting the final agency action is
issued, or is considered to have been issued under
Subsection 63-46b-13(3)(b).” 1988

UCA 63-46b-16
“(1) As provided by statute, the Supreme Court or
Court of Appeals has jurisdiction to review all final
agency action resulting from an adjudicative proceed-

ings.” 1988

Court Jurisdictional Statutes:

UCA 78-2-2(3)(a)
“(3) The Supreme Court has appellate jurisdiction,
including jurisdiction of interlocutory appeals, over
(a) a judgement of the Court of Appeals.”

UCA 78-2-2(6)
“The Supreme Court shall comply with the require-
ments of Title 64, Chapter 46b, in its review of agency
adjudicative proceedings.”

UCA 78-2a-3(2)(a)

“(2) The Court of Appeals has appellate jurisdiction,

l6a

including jurisdiction of interlocutory appeals, over
(a) the final orders and decrees resulting from for-
mal adjudicative proceedings of state agencies...”

UCA 78-2a-3(4)
“The Court of Appeals shall comply with the require-
ments of Title 63, Chapter 46b, Administrative Pro-
cedures Act, in its review of agency adjudicative pro-

ceedings.”

Utah Rules of Civil Procedure:

Rule 1, Utah R.Civ.P.

“These rules shall govern the procedure ... in all ac-
tions, suits and proceedings of a civil nature whether
cognizable at law or in equity, and in all special statu-
tory proceedings ... and except as stated in Rule 81.
They shall be liberally construed to secure just,
speedy and inexpensive determination of every ac-
tion.” 1987

Rule 11, Utah R.Civ.P.

“Every pleading, motion or other paper ... The sig-
nature of an attorney or party constitutes a certifica-
tion by him that he has read the pleading, motion, or
other paper; that to the best of his knowledge, infor-
mation, and belief formed after reasonable inquiry it
is Well grounded in fact and is warranted by existing
law or a good faith argument ... If a pleading, mo-
tion or other paper is signed in violation of this rule,

17a

the court, upon motion ... shall impose upon the per-
son who signed it, a represented party, or both, an
appropriate sanction.”

Rule 37 Utah R.Civ.P.

“If a party or an officer, director, or managing agent
of a party ... fails to obey an order to provide or per-
mit discovery ... the court in which the action is pend-
ing may make such orders in regard to the failure are
just ... In lieu of any of the foregoing orders or in
addition there-to, an order treating as a contempt of
the court the failure to obey any orders ... In lieu of
any of the foregoing orders or in addition thereto,
the court shall require the party failing to obey the
order or the attorney advising him or both to pay the
reasonable expenses ... caused by the failure...”

Rule 46 Utah R.Civ.P

“(d)(1) To Whom Awarded. Except when express
provision therefor is made either in a statute of this
state or in these rules, costs shall be allowed as a
course to the prevailing party.” Rule 46 Utah Rules
of Civil Procedure

Rule 56 Utah R.Civ.P.

“Summary Judgements. (c) The judgement sought
shall be rendered forthwith if the pleadings ... an-
swers to interrogatories, and admissions on file, to-
gether with the affidavits, if any, show that there is
no genuine issue as to any material fact, and that the

18a

moving party is entitled to a judgement as a matter
of law...(e) When a motion for summary judgement
is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations
or denials of his pleadings, but his response, by affi-
davits or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary
judgement, if appropriate, shall be entered against
him.” Rule 56 Utah Rules of Civil Procedure

Rule 65B(d)(2) Utah R.Civ.P.

“(d) Wrongful use of judicial authority or failure to
comply with duty; (2) Grounds for relief. Appropri-
ate relief may be granted: (A) where an inferior court,
administrative agency or officer exercising judicial
functions has exceeded its jurisdiction or abused dis-
cretion; (B) where an inferior court, administrative
agency, corporation or person has failed to perform
an act required by law as a duty of office, trust or
Station...”

Rule 81 Utah R.Civ.P.

“Applicability of rules in general. (a) These
rules shall apply to all special statutory proceedings...
(d) These rules shall apply to the practice and proce-
dure in appealing from or obtaining a review of any
order, ruling or other action of an administrative
board or agency...”

19a

Worker’s Compensation Rules:
~ R568-1-4(M), Ist Sentence

“Any party to an adjudicative proceeding seeking
review of an Order by the Agency may file a written

request for review in accordance with the provisions
of UCA 63-46b-12, 13, 14, 15, and 16, U.C.A.”

R568-1-4(M), 2nd sentence

“A Motion for Review of any order entered by an
Administrative Law Judge may be filed pursuant to
the provisions of Section 63-46b-12, U.C.A.”

R568-1-4(N)

“In formal adjudicative proceedings, the Industrial
Commission, shall generally follow the Utah Rules
of Civil Procedure regarding discovery and the issu-
ance of subpoenas, except as the Utah Rules of Civil
Procedure are modified by the express provisions of
Section 35-1-88, U.C.A. ...”

R568-1-4(O) 2nd Sentence

“Any petition for judicial review of the Commission’s
Order on Motion for Review shall be governed by
the provisions of Section 63-46b-14, U.C.A.

Utah Rules of Appellate Procedure:
Rule 5 Utah R.App.P.

“(a) Discretionary appeals from interlocutory orders...”

20a

Rule 14 Utah R.App.P.

“(a) ... a petition for review shall be filed with the
clerk of the appellate court within the time prescribed
by statute.”

Rule 18 Utah R.App.P.

“Applicability of other rules to review. All provi-
sions of these rules are applicable to review of deci-
sions or orders of agencies, except Rules 3 through
8 are not applicable.”

Rule 46a Utah R.App.P.

“Considerations governing review of certiorari. (a)
Review by a writ of certiorari is not a matter of right,
but of judicial discretion, and will be granted only
for special and important reasons. The following
while neither controlling nor wholly measuring the
Supreme Court’s discretion, indicates the character
of reasons that will be considered; (1) When a panel
of the Court of Appeals has rendered a decision in
conflict with a decision of another panel of the Court
of Appeals on the same issue of law; (2) When a
panel of the Court of Appeals has decided a ques-
tion of state or federal law in a way that is in conflict
with a decision of the Supreme Court; (3) When a
panel of the Court of Appeals has rendered a deci-
sion that has so far departed from the accepted and
usual course of judicial proceedings or has so far
sanctioned such a departure by a lower court as to
call for an exercise of the Supreme Court’s power of

2la

supervision; or (4) When the Court of Appeals has
decided an important question of municipal, state,
or federal law which has not been, but should be
settled by the Supreme Court.”

Federal Statutes:

28 USCA $1257(a)

“Final judgements or decrees rendered by the high-
est court of a State in which a decision could be had,
may be reviewed by the Supreme Court by writ of
certiorari ... where the validity of any State is drawn
in question on the ground of its being repugnant to
the Constitution ... of the United States...” 28 USCA
$1257(a)

“Note that the section allows certiorari to review not
just a decision of the “highest court” of a state, but
of the highest state court “in which a decision could
be had.” That language ... takes note of the internal
strictures a state may impose on appeals within its
own court system, perhaps stopping a case at some
lower level and barring it from review by the state’s
highest court, or, for that matter, from any appellate
court at all. If the case never-the-less poses a federal
question, review of it can be applied for to the U.S.
Supreme court - solely by the certiorari route - from
whatever court is has been able to reach within the
State system. Suppose, for example, that State X has
set up several tiers of appeal for a case commenced
in a court of limited jurisdiction, but one of its inter-
nal appealability requirements has not been met - in

99:

a how C

regard to the nature of the case, the stage it has
reached, some required procedure, some time period,
etc. - and the case can’t be appealed at all under state
law. If that case never-the-less poses a federal ques-
tion, it can conceivably jump from the lowest court
in the state to the highest court in the land through
the good offices of $ 1257. It happened in Grovey «.
lownsend, 295 US 45, 55 S. Ct. 622, 79 L.Ed 1292
(1935), for example, from a local justice court, and

it continues to happen ...”. Commentary, pg 97, 98

APPENDIX E

Allred v. Utah State Retirement B., 914 P2d 1172 (Ct. App.
1996)

“When interpreting statutes, this court is guided by
the long-standing rule that a statute should be con-
strued according to its plain language.” 914 P2d 1175
Citing Utah Sign Inc., 896 P2d 632, 633-4 (Utah 1995)

Allen v. Ind. Comm., 729 P2d 15 (Sup. Ct. 1986)

“An accident connotes an unanticipated, unintended
occurrence different from what would normally be
expected to occur in the usual course of events ...
This is not necessarily restricted to some single inci-
dent which happened suddenly at one particular time
and does not preclude the possibility that due to ex-
ertion, stress or other repetitive cause, a climax might
be reached in such manner as to properly fall within
the definition of an accident.” 729 P2d 18

“It is clear, however, that our cases have defined “by
accident’ to include internal failures resulting from
both usual and unusual exertions.” 729 P2d 19

“Under medical causation portion of two part test ...
claimant must show by evidence opinion or other-
wise that stress, strain or exertion required by his or
her occupation led to resulting injury or disability.”
729 P2d 16

“To meet the legal causation requirement, a claim-
ant with a pre-existing condition must show that
the employment contributed something substan-
tial to increase the risk he already faced in every-
day life because of his condition. This additional
element of risk in the workplace is usually sup-
plied by an exertion greater than that undertaken
in normal, everyday life ... If their is no personal
causal contribution, that is, if there is no prior
weakness or disease, any exertion connected with
the employment and causally connected with the
(injury) as a matter of medical fact is adequate to
satisfy the legal test of causation.” 729 P2d 25 -

26

Amica Mut. Ins. Co. v. Schettler, 768 P2d 950 (Ct. App.
1989)

“when the moving party has presented evidence
sufficient to support a judgement in its favor, and
the opposing party fails to submit contrary evi-
dence, a trial court is justified in concluding that
no genuine issue of fact is present or would be at
trial.” 768 P2d 957

“It is fundamental that once the production of
documents is demanded, a party is obligated to
produce them unless he objects or moves for a pro-
tective order. Utah R. Civ.P. 37(d).” 768 P2d 962

“The following evidence was also before the
court... (1) Schettler’s attorney .. misrepresented
himself:.., (2) a court reporter testified that

—

25a

Mrs Ware..., (3) attorney, Ed Flint, attempted to
intimidate witnesses Mr and Mrs Smith ..., (4) both
Schettler and Flint engaged in regular secretive
taping of phone conversations ..., (5) Schettler and
Flint attempted to intimidate witness Troy
Murdock by coercing him to leave a restaurant
parking lot with them and forcing him to sign an
affidavit. They offered Murdock $1000 if he
agreed not to appear at his deposition and $10,000
if he agreed to solicit a bribe from Amica’s attor-
ney, Ed Flint, attempted to further intimidate Troy
Murdock by brandishing a revolver he kept in his
brief case” 768 P2d 955

“The record in this case clearly demonstrates a pat-
tern of aggravated misconduct in the form of will-
ful and deliberate disobedience of discovery or-
ders, fabricated testimony, and attempted witness
tampering.” 768 P2d 962

Aragon v. Clover Club Foods Co., 857 P2d 250 (Ct. App.

“Limitation periods begin to run when a cause of
action has accrued, which occurs ‘upon the hap-
pening of the last event necessary to complete the
cause of action’.” Citing Becton Dickinson & Co.,
668 P2d 1254, 1257 (Utah 1983); Quoting Order
of R.R. Telegraphers, 64 S.Ct. 582, 586, 88 L.Ed.
788 (1944) “This general rule may be subject to
the ‘Discovery Rule’, such that the running of the
statute of limitation is tolled until the plaintiff

26a

discovers (or should have discovered) all of the facts
that form the basis for the cause of action.” 857
P2d 252

“The limitation period should not be allowed to run
before the suit can be effectively filed.” 857 P2d
253

Baker v. Ind. Comm., 405 P2d 613 (Sup. Ct. 1965)

“Purpose of Industrial Compensation Act is to alle-
viate hardships upon workers and their families.”
405 P2d 613

Industrial Commission may not, without any rea-
son or cause, arbitrarily or capriciously refuse to
believe and act upon substantial, competent and
credible evidence which is uncontradicted.” 405
P2d 613

“This Court is committed to the rule that as a mat-
ter of law the Commission may not, without any
reason or cause, arbitrarily or capriciously refuse
to believe and act upon substantial, competent and
credible evidence which is uncontradicted.” 405
P2d 615

Barber v. Ind. Comm., 135 P2d 266 (Supreme Ct. 1943)

“Workmen’s Compensation Act is intended to sub-
stitute a more humanitarian and economical system
of compensation for injured workmen or their de-
pendents, and to afford injured workmen or their

27a

PiRitiatiiiesic ces

dependents simpie, adequate and speedy means of
securing compensation.” 135 P2d 266

Bateman v. Board of Examiners, 322 P2d 381 (Sup Ct. 1958)

“Where statutes are conflicting, the more specific
takes precedence over general.” 322 P2d 381, Cit-
ing University of Utah v. Richards, 20 Utah 457, 59

P2d 96
Becton Dickinson Co., v. Reese, 668 P2d 1254 (Sup. Ct.
1983)

“the general rule has been that a cause of action ac-
crues upon the happening of the last event necessary
to complete the cause of action.” 668 P2d 1257

Bennion v. Sundance Development Corp., 896 P2d 1232
(Ct. App. 1995)

“It is the Court’s duty to harmonize and reconcile
statutory provisions, since the Court can not presume
that the legislature intended to create conflict.” 896
P2d 1235, Citing Madisen v. Brown, 701 P2d 1086,
1089-90

Berry by and Through Berry v. Beech Aircraft, 717 P2d
670 (Sup. Ct. 1985)

“To be constitutional, a statute of limitation must al-
low a reasonable time for the filing of an action after
a cause of action arises.” 717 P2d Pg 672, Citing
Horn, 151 P2d 555 (1915)

28a

“[Constitutionality] is satisfied if the law provides
an injured person an effective and reasonable al-
ternative remedy “by due course of law’ for vindica-
tion of his constitutional interest...” 717 P2d 680
[citations omitted]

Blue Cross and Blue Shield v. State, 779 P2d 634 (Sup.
Ct. 1989)

“We are not free to break out groups that might be
distinguishable if the legislature has not.” 779 P2d
638 Citing Crowder, 552 P2d 646 (Utah 1976); State
y. Breed, 725 P2d 202, 205; Aetna Life Ins., 520
P2d 162, 165 n. 6

Borgnis v. Falk Co., 133 N.W. 209, 147 Wis. 327 (Wis
Sup. Ct. 1911)

“The Industrial Commission must, of course, de-
cide these questions in any cases where they are
raised: but it cannot decide them conclusively, for
they are jurisdictional questions on which its right
to act at all depends. They must be open to review
in some court of competent jurisdiction; otherwise,
the parties would be denied due process of law.”
133 N.W. 219

Brendle v. City of Draper, 937 P2d 1044 (Ct. App. 1997)

“Where statutory language is plain and unambigu-
ous. this Court will not look beyond the same to
divine legislative intent, rather, we are guided by
the rule that a statute should generally be construed

29a

according to its plain language.” 937 P2d 1047
Quoting Brinkerhoff, 779 P2d 685, 686 (Utah 1989)

“When language is clear and unambiguous, it must
be held to mean what it expresses, and no room is
left for construction.” 937 P2d 1047

“Although the trial court denied Draper City’s Mo-
tion to Dismiss and treated the Lot Owners’ com-
plaint as a petition for review, its subsequent final
ruling and order did not address all of the causes of
action pleaded by the Lot Owners ... those causes of
action not previously considered in the petition for
review are remanded to the trial court for further
appropriate proceedings, as may be needed.” 937
P2d 1048 - 1049

Bunnell v. Ind. Comm., 740 P2d 1331 (Sup. Ct. 1987)

“every person who brings a claim in a court or at a
hearing held before an administrative agency has a
due process right to receive a fair trial in front of a
fair tribunal.” 740 P2d 1333, Citing Anderson v.
Ind. Comm., 696 P2d 1219, 1221 (Utah 1985)

“Fairness requires not only an absence of actual bias,
but endeavors to prevent even the possibility of un-
fairness.” 740 P2d 1333, Quoting Anderson v. Ind.
Comm., 696 P2d 1221

Cox Broadcasting Corp. v. Cohn, 43 L.Ed 328; 420 US 469;

95 S Ct. 1029 (U.S. Sup. Ct. 1975)

30a

“Since 1789, Congress has granted this Court ap-
pellate jurisdiction with respect to state litigation
only after the highest court in which judgemeni
could be had has rendered a “final judgement or
decree”... But the Court has observed that the rule
had not been administrated in such a mechanical
fashion and that there were circumstances in which
there had been “a departure from this requirement
of finality for federal appellate jurisdiction... These
circumstances were said to be “very few”... but as
the cases have unfolded, the Court has recurringly
encountered situations in which the highest court
of a State has finally determined the federal issue
present in a particular case, but in which there are
further proceedings in the lower state courts to
come. There are now at least four categories of
such cases in which the Court has treated the deci-
sion on the federal issue as a final judgement for
the purposes of 28 USC $1257 and has taken juris-
diction without awaiting the completion of the ad-
ditional proceedings anticipated in the lower state
courts. In most, if not all, of the cases in these cat-
egories, these additional proceedings would not re-
quire review by the Court at a later date, and imme-
diate rather than delayed review would be the best
way to avoid “the mischief of economic waste and
of delayed justice’.”-43 L.Ed 2d 338 - 339

“In the third category are those situations where the
federal claim has been finally decided, with further
proceedings on the merits in the state courts to come,
but in which later review of the federal issue can-
not be had, whatever the ultimate outcome of the

3la

——

| case. Thus, in these cases, if the party seeking in-

| terim review ultimately prevails on the merits, the
federal issue will be mooted; if he were to lose on
the merits, however, the governing state law would
not permit him again to present his federal claims
for review. The Court has taken jurisdiction in these
circumstances prior to completion of the case in state
courts.” 43 L.Ed 2d 340, 341

De Baritault v. Salt Lake City Corp., 913 P2d 743 (Sup.
Ct. 1996)

“If there is doubt or uncertainty as to the meaning
or application of the provisions of an act, it is ap-
propriate to analyze the act in its entirety, in light
of its objective and to harmonize its provisions in
accordance with its intent and purpose.” 913 P2d
746, Citing Clover, 808 P2d 1037, 1045 (In turn
quoting Osuala, 608 P2d 242, 243)

“When a construction of an act will bring it into
serious conflict with another act, our duty is to con-
strue the acts to be in harmony and to avoid con-
flicts.” 913 P2d 747, Quoting Jerz 822 P2d 773
(Citing Murray City, 663 P2d 1314, 1319)

Deseret Sav. Bank v. Francis, 217 P 1114 (Ut. Sup. Ct.
1923)

“Upon other grounds the statute must be construed
to be mandatory. When power is given by statute to
public officers, in permissive language, the language
used will be regarded as peremptory where the pub-

32a

_D_—

lic interest or individual rights require it should be.
Supervisors v. U.S., 4 Wall 435, 18 L.Ed, 419; City
of Galena v. Amy, 5 Wall 705, 18 L.Ed 560; Village
of Kent v. U.S. 113 Fed 232, 51 C.C.A. 189;
Southerland Stat. Const. $462; 4 Dillon Mun. Corp.
(Sth Ed.) $1515" 217 P 1115 - 1116

Dupler v. Yeates, 351 P2d 624 (Sup. Ct. 1960)

“Certainly, if the summary judgement procedure is to
be effective, it must be held that when adequate proof
is submitted in support of the motion, the pleadings are
not sufficient to raise an issue of fact.” 351 P2d 636

“where the moving party’s evidentiary matter is in it-
self sufficient and the opposing party fails to proffer
any evidentiary matter when he is presumably in a
position to do so, the courts should be justified in con-
cluding that no genuine issue of fact is present, nor
would one be present at the trial.” 351 P2d 637

“Upon a motion for summary judgement, the courts
ought to recognize, as a minimum, that the opposing
party produce some evidentiary matter in contradic-
tion of the movant’s case or specify in an affidavit the
reason why he cannot do so.” 351 P2d 637

“Where ... the materials presented by the moving party
are sufficient to entitle him to a directed verdict and
the opposing party fails to either to offer
counteraffidavits or other materials that raise a cred-
ible issue ... summary judgement may be rendered for
the moving party.” 351 P2d 637

33a

aa

Engl v. Aetna Life Ins. Co., 139 F2d 469 (Sec. Cir. Ct. of
App. 1943)

“The Federal summary judgement proceeding ...
is intended to permit ‘a party to pierce the allega-
tions of fact in the pleadings and to obtain relief
by summary judgement where facts set forth in af-
fidavits ... show that there are no genuine issues
of fact to be tried.’ ... The rationale is well stated
in one of the leading cases establishing the consti-
tutionality, Hanna v. Mitchell, 202 App. Div. 504,
518, 196 N.Y.S. 43, 55, affirmed 235 N.Y. 534,
139 N.E. 724; ‘To say that a false denial, which
defendants are unable to justify, must neverthe-
less put the plaintiff to his common-law proof be-
fore a jury, although the result would be a directed
verdict in plaintiff’s favor as a matter of law, is to
exalt the shadow above the substance.’ Hence we
have often held that mere formal denials or gen-
eral allegations which do not show the facts in
detail and with precision are insufficient to pre-
vent the award of summary judgement. [Citations
omitted]” 139 F2d 472 - 473

Flynt v. Ohio, 68 L.Ed 2d 489; 451 US 619; 101 S Ct.
1958 (U.S. Sup. Ct. 1981)

“The Court has, however, in certain circumstances,
treated state-court judgements as final for juris-
dictional purposes although there were further pro-
ceedings to take place in the state court. Cases of
this kind were divided into four categories in Cox
Broadcasting Corp. v. Cohn, supra ... In the first

34a

place, we observe in Cox that in most, if not all,
of the cases falling within the four exceptions, not
only was there a final judgement on the federal
issue for purposes of state-court proceedings, but
also there were no other federal issues to be re-
solved. There was thus no probability of piece-
meal review with respect to federal issues.” Flynt
v. Ohio, 68 L.Ed 2d 492

<
i
:

Fred Meyer v. Ind. Comm., 800 P2d 825 (Ct. App. 1990)

“Furthermore, to facilitate the purposes of the leg-
islation, the Worker’s Compensation Act is to be
liberally construed and any doubt as to compensa-
tion is to be resolved in favor of the applicant.”
800 P2d 828, Citing USX Corp. v. Ind. Comm.,
781 P2d 883, 886; Kaiser Steel Corp., 631 P2d
892; McPhie v. Ind. Comm., 567 P2d 153

Gillespie v. United States Steel Corp., 13 L.Ed 2d 199;
379 US 148; 85 S Ct. 308 (U.S. Sap. Ct. 1964)

[in deciding the question of finality the most im-
portant competing considerations are] “the incon-
venience and costs of piecemeal review on the one
hand and the danger of denying justice by delay
on the other.” 13 L.Ed 2d 204

“But as this Court has pointed out, a decision ‘fi-
nal’ within the meaning of $1291 does not neces-
sarily mean the last order possible to be made in a
case.” 13 L.Ed 2d 203 Citing Cohn v. Beneficial
Industrial Loan Corp., 337 US 541, 545; 93 L.Ed

35a

1529, 1535; 69 S Ct. 1221

“We think that the questions presented here are
equally fundamental to the further conduct of the
case.” 13 L.Ed 2d 204

Grace Drilling v. Ind. Comm., 776 P2d 63 (Ct. App.,
1989)

“Under the UAPA, it is clear that the Board’s find-
ings of fact will be affirmed if they are ‘supported
by substantial evidence when viewed in light of
the whole record before the Court’.” 776 P2d 67

“Grace Drilling was given two opportunities to-
present the results and lay the appropriate founda-
tion for receiving them into evidence. Grace de-
clined on both occasions ... we do not believe
granting parties ‘three bites at the apple’ is conso-
nant with efficient administrative procedure.
Grace Drilling had ample opportunity to present
its case and failed to meet its burden.” 776 P2d
70

Grovey v. Townsend, 79 L.Ed 1292, 295 U.S. 45 - 55
(U.S. Sup. Ct. 1935)

Our jurisdiction is clear, as the Justice Court is
the highest state court in which a decision could
be had, and the validity of the constitution and stat-
utes of the state was drawn in question on the
ground of their being repugnant to the Constitu-

36a

i ii.

tion of the United States.” 79 L.Ed 1293, 1294
Citing Downham v. Alexandria, 9 Wall. 659, 19
L.Ed 807; Tinsley v. Anderson, 171 U.S. 101, 43
L.Ed 91, S. Ct. 805

Harmon v. Odgen |

‘The courts are not to infer substantive terms into
the text that are not already there. Rather, the in-
terpretation must be based on the language used,

and the court has no power to rewrite the statute

to conform to an intention not expressed.” 890 -
P2d 6, Citing Barrette, 876 P2d 367, 370 (Utah
1994)

“In determining the meaning of this statute, “we
look first to the plain language’.” Pg 6, Quoting K
& T 254 Utah Ad. Rep. 3.4 (Utah 1994)

Herr v. Salt Lake County, 525 P2d 728 (Sup. Ct. 1974)

‘We thing the county commission should abide by
its own ordinance which says it shall make its de-
cision within seven days after the hearing, and if
it fails so to do, it loses its jurisdiction.” 525 P2d

799

In Re Owens’ Estate, 85 P 277 (Sup. Ct. 1906)

“Where a statute confers authority to do a judi-
cial, or indeed, any other act, which the public in-

Ila

terest or even individual right may demand, it is
imperative on those so authorized to exercise the
authority when the case arises, and its exercise is
duly applied for by a party interested and having a
right to make the application. In giving one per-
son the authority to do an act the statute impliedly
gives to others the right of requiring that the act
be done, the power being given for the benefit not
of him who is invested with it, but of those for
whom it is to be exercised. The Legislature in
such cases imposes a positive and absolute duty,
and not merely gives a discretionary power; and it
must be exercised upon proof of the particular facts
out of which the power arises. When, there, the
language in which the authority is conferred is only
directory, permissive or enabling, for instance,
when it is enacted that the person authorized “may”
or “shall if he deems it advisable”, or that “it shall
be lawful” for him to do the act, it has been so
often decided as to have become an axiom that
such expressions have a compulsory force...” 85
P 279 With reference to Supervisors v. United
States

In Re Utah Savings and Loan Association, 442 P2d 929
(Sup. Ct. 1968) ©

“It 1s true, here, as it is in so many areas of the
law, that one statute has been enacted at one time
with a particular purpose in mine, and that another
has been enacted at another time with a different
purpose in mine. When this has been done and

38a

there is an apparent conflict, it is not proper to put
all the emphasis to one statute, as though it stated
all of the law on the subject to the exclusion of the
other. They should be looked at together, in their
relationship to each other, with a view to recon-
ciling any such apparent conflict and giving each
its intended effect insofar as that can be accom-
plished without nullifying the other.” 442 P2d 932

“One act is not to be allowed to defeat another, if
by reasonable construction the two can be made
to stand together.” 442 P2d 932 N. 1, Citing Uni-
versity of Utah v. Richards, 20 Utah 457, 59 P 96
with reference also to Western Beverage Co. of
Provo, Utah v. Hansen et. us., 98 Utah 332, 96
P2d 1105

James v. Honaker Drilling Co., 254 F2d 702 (Tenth Cir.
Ct. Ap. 1958)

“Rule of Civil Procedure 56, 28 U.S.C. authorizes
the entry of summary judgement when it affirma-
tively appears from the pleadings, ... affidavits, if
any, that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to
judgement as a matter of law... if it appears that
there is no genuine issue as to any material fact
upon which the outcome of the litigation depends,
ihe cause is appropriate for disposition by sum-
mary judgement and the court should enter such
judgement. Broderick Wood Products Co. United
States, 10 Cir., 195 F2d 433; SMS Mfg. Cov. U.S.

39a

Mengle Plywoods, 10 Cir., 219 F2d 606. And
where the moving party presents affidavits ,,,
which taken alone entitle him to a directed ver-
dict, if believed, and which the opposite party does
not discredit as dishonest, it rests upon that party
at least to specify some opposing evidence that he
can adduce which may reasonably change the re-
sult. Zampos v. United States Smelting, Refining
and Mining, 10 Cir., 206 F2d 171.” 254 F2d 706

Jensen v. IHC Hospitals, Inc., 944 P2d 327 (Sup. Ct.
1997)

“When we are faced with two statutes that proport
to cover the same subject, we seek to determine
the legislatures intent as to which applies. In do-
ing this, we follow the general rules of statutory
construction, which provide both that ‘the best evi-
dence of legislative intent is the plain language of
the statute’. Sullivan v. Scoular Grain Co., 853
P2d 877, 879 (Utah 1993) Citing Jensen v. Inter-
mountain Health Care, Inc., 679 P2d 903, 904
(Utah 1984), and that ‘a more specific statute gov-
erns instead of a more general statute”’ De
Baritault v. Salt Lake City Corp., 913 P2d 743,
748 (Utah 1996) (Quoting Pan Energy v. Martin,
813 P2d 1142, 1145 (Utah 1991) (Citations omit-
ted).” 944 P2d 331

“On a motion for summary judgement, the mov-
ing party bears the burden of proof for its motion,
namely, the burden of proving that there is no genu-

40a

Jerz Vv.

ine issue as to any material fact and that the mov-
ing party is entitled to judgement as a matter of
law. However, in opposing a motion for summary

judgement, the plaintiff still has the ultimate bur-

den of proving all the elements of his or her cause
of action... Further, once challenged, the party who
opposed such a motion must come forward with
sufficient proof to support his or her claim, par-
ticularly when that party has had an opportunity
to conduct discovery... The party opposing a prop-
erly supported motion for summary judgement
‘may not rest upon the mere allegations or denials
of his [or her] pleadings, but his [or her] response,
by affidavit or as otherwise provided by this rule,
must set forth specific facts showing that there is
a genuine issue for trial...’ Put another way, once
the moving party had brought forth evidence ei-
ther tending to prove the lack of a genuine issue
of material fact or challenging the existence of one
of the elements of the cause of action, the
nonmoving party then bears the burden of prov-
ing some evidence, by affidavit or otherwise, in
support of the essential elements of his [or her]
claim.” 944 P2d 339

Salt Lake County, 822 P2d 770 (Sup. Ct. 1991)

“It is our duty to construe the act of the legislature
so as to give it full force and effect. When a con-
struction of an act will bring it into serious conflict
with another act, our duty is to construe the acts to

4la

be in harmony and avoid conflicts.” 882 P2d 773

Johnson vy. Britton, 290 F2d 355 (U.S. Ct. App., Dist. Col.
1961)

“Compensation Acts, to be within constitutional
limits, must not be arbitrary, unreasonable, or fun-
damentally unjust or oppressive.” 290 F2d 359,
Citing Marshall v. Mahony

Johnson v. Ind. Comm., 87 N.W.2d 822, 3 Wis.2d 173 (Wis.
Sup. Ct. 1958)

“The Constitutionality of the Workmen’s Compen-
sation Act depends upon the right of judicial re-
view to determine whether the findings are sup-
ported by evidence.” 87 N.W.2d 826, Citing
Borgnis v. Falk Co., supra [(1911), 147 Wis. 327,
133 N.W. 209, 37 L.R.A. N.S., 489]

Jones v. California Packing, 244 P2d 640 (Sup. Ct. 1952)

“Where facts are proved by uncontested testimony
of competent disinterested witnesses in a compen-
sation proceeding and there is nothing inherently
unreasonable, nor any circumstance which would
tend to raise doubt of its truth, it should be taken as
established and refusal to do so is an arbitrary dis-
regard by the trier of facts.” 244 P2d 640

“Under the Workmen’s Compensation Act, the In-
dustrial Commission has no arbitrary power to dis-

42a

believe or disregard uncontradicted, competent, cred-
ible evidence.” 244 P2d 641

Marshall v. Andrew F. Mahony, 56 F2d 74 (U.S. Ninth Cir.
Ct. App. 1932)

“Compensation Acts to be within constitutional lim-
its, must not be arbitrary, unreasonable, or fundamen-

tally unjust or oppressive.” 56 F2d 78

Merton v. Ind. Comm., 50 N.W.2d 42; 260 Wis. 109 (Wis.
Sup. Ct. 1951)

“The constitutionality of the Workmen's Compensa-
tion Act depends upon the right of judicial review to
determine whether the findings are supported by evi-
dence” 50 N.W. 2d 46, Citing Borgnis v. Falk Co.,

supra.

Meyers v. McDonald, 635 P2d 84 (Sup. Ct. 1981)

“the general rule is that a cause of action accrues upon
the happening of the last event necessary to complete
the cause of action [11 citations omitted] ... There are
a number of exceptions to this general rule. In some
enumerated areas of the law, our Legislature has
adopted the discovery rule by statute so that the limi-
tations period does not begin to run until the discov-
ery of facts forming the basis for the cause of action
[Citations Omitted]. ... Finally, without regard to
wrongdoing on the part of the defendant, the courts of
some states have adopted the discovery rule by judi-

43a

cial action as to exceptional circumstances or causes
of action where application of the general rule would
be irrational or unjust [Citations omitted].” 635 P2d
86

“We should be careful not to encroach on legislative
prerogative. However, there may well be a denial of
constitutional rights in foreclosing persons from ac-
cess to the court under these unusual circumstances.
Besides the constitutional guarantees of due process
and equal protection of the law, our Utah Constitu-
tion, Article I, Section 11 provides that “All courts
Shall be open, and every person for an injury done to
him in person ... shall have remedy by due course of
law which shall be administered without denial...” 635
P2d 88 Justice Howe concurring _

Milkovich v. Ind. Comm., 64 P2d 1290 (Sup. Ct.)

“Industrial Commission cannot compel certain sorts
of evidence, but must take cases as they are presented
with such evidence as nature of case permits, and from
such evidence come to its conclusion, rather than from
fact that certain type of evidence, presentation of which
it makes condition precedent is not forthcoming.” 64
P2d 1290, 1292

Nyrehn v. Industrial Commission, 800 P2d 330 (Ct. App.
1990) S
“Failure of agency to make adequate findings of fact
on material issues renders its findings arbitrary and
capricious unless the evidence is clear, uncontroverted,

44a

and capable of only one conclusion.” 800 P2d 330

“The failure of a trial court to make adequate findings
of fact on material issues is reversible error.” 800 P2d
335

“Likewise, the failure of an agency to make adequate
findings of facts on material issues renders its find-
ings arbitrary and capricious.” 800 P2d 335

ty ih mies

Order of R. Telegraphers v. Railway Exp. Agency, 88 L.Ed
789 (U.S. Sup. Ct. 1943)

“A State statute of limitations can hardly destroy a
claim because the period of actual contest over it in
a Federal tribunal extends beyond the limitation pe-
riod. Statutes of limitations, like the equitable doc-
trine of latches, in their conclusive effects are de-
signed to promote justice by preventing surpiises
through the revival of claims that have been allowed
to slumber until evidence has been lost, memories
have faded, and witnesses have disappeared. The
theory is that even if one has a just claim it is unjust
not to put the adversary on notice to defend within
the period of limitation and that the right to be free
of stale claims in time comes to prevail over the right
to prosecute them. Here, while the litigations shows
no evidence of reckless haste on the part of either,
party, it cannot be said that the claims were not timely
pursued. Regrettable as the long delay has been it
has been caused by the exigencies of the contest, not
by the neglect to proceed. We find no basis for ap-

9 koe NATE RET EO

45a

plying a state statute of limitations to cut off the right
of the Adjustment Board to consider the claims or to
absolve the courts from the duty to enforce an award
[Where the case had gone through multiple jurisdic-
tions with separate statutes of limitations]. 88 L.Ed
792, 793

Pan Energy v. Martin, 813 P2d 1142 (Sup. Ct. 1991)

“Well established principles of statutory construc-
tion require that a more specific statute governs in-
stead of a more general statute.” 813 P2d 1145, Cit-
ing State Ex. Rel. Pub. Serv. Comm’ v. Southern Pac.
Col 79 P2d 25, 38 (1938); 82 C.J.S. Statutes $347(b)
(1953)

Park Utah Consol. Mines Co., 36 P2d 979 (Sup. Ct. 1934

“Compensation Act affords injured industrial work-
men or their dependents, through administrative bod-
ies, simple adequate and speedy means of securing
compensation to end that cost may be taxed against
industry...” 36 P2d 979, (See also Utah Fuel Co.,
194 P 122; Salt Lake City, 199 P 152; Globe Grain
and Milling Co., 193 P 642; Utah Copper Co., 193 P
24; Americal Fuel Co., 187 P 633; Retuna, 185 P
535; Amalgamated Sugar Co., 286 P 959; Industrial
Commission v. Agee, 189 P 414)

Pearce v. North Dakota Workmen’s Compensation Bureau,
274 N.W. 2d 587 (N.D. Sup. Ct. 1937

46a

“The conclusion to be deduced from the authorities
is, that where power is given to public officers, in
the language of the Act before us, or in equivalent
language - whenever the public interest or individual
rights call for its exercise - The language used, though
permissive, is in fact peremptory. What they are em-
powered to do for a third person, the law requires shall
be done. The power is given not for their benefit, but
for his. It is placed with the repository to meet the
demands of justice. It is given as a remedy to those
entitled to invoke its aid, and who would otherwise
be remediless. In all cases, it is held that the intent of
the legislature, which is the test, was not to devolve a
mere discretion, but it imposes ‘a positive and abso-
lute duty’.” 274 N.W. 2d 596, Citing Supervisors v.
United States

Salt Lake City v. Ohms, 881 P2d 844 (Sup. Ct. 1994)

“... when a proper challenge to the constitutionality of
a given statute is made, the said statute must be exam-
ined to determine if it is unconstitutional either on its
face or as applied.” 881 P2d 847, (Citing In Re Crimi-
nal Investigation, 7th Dist. Court No. ES-1, 754 P2d
633, 640 (Utah 1988); Wells v. Children’s Aid Soc.
of Utah, 681 P2d 199, 204 (Utah 1984); Ellis v. So-
cial Serv. Dept of Church of Jesus Christ of Latter-
day Saints, 615 P2d 1250, 1255 (Utah 1980))

47a

Savage v. Educators, 908 P2d 862 (Sup. Ct. 862-863)

“Claimant sued employer’s worker’s compensation in-
surance carrier for breach of covenant of good faith
and fair dealing in processing her claim... The Supreme
Court, Zimmerman, C.J., held that claimant could not
bring action against employer’s carrier for breech of
contractual covenant of good faith and fair dealing in
adjusting claim, since claimant was not in privity with
carrier” 908 P2d 863, 863

Spencer v. Ind. Comm., 40 P2d 188 (Sup. Ct. 1935)

“commission cannot, without cause, disregard uncon-
tradicted evidence or arbitrarily refuse to believe and
act upon credible evidence which is unquestioned and
undisputed in making it findings.” 40 P2d 189

State v. Finch, 315 P2d 529 (Id. Sup. Ct. 1957)

“It should be kept in mind that the evil of administra-
tive action which must be guarded against is not the
fact-finding power, but the conclusiveness of the fact-
finding power coupled with the order based on the
findings made which would deprive a person of a prop-
erty right. Such is the full exercise of judicial power,
and such power in this state can be exercised only by
one of the enumerated courts.” 315 P2d 532, (Citing
Big Butte v. State Board of Education, 78 Idaho 602,
308 P2d 225, 229 & Laisne v. State Board of Optom-
etry, 19 Cal.2d 831, 123 P2d 457)

48a

“... in conjunction with hearings before adminis-
trative boards of this kind unless an appeal is pro-
vided therefrom to a court, even though the scope
of review be limited, due process is not satisfied.
Zachos v. Huiet, 195 Ga. 780, 25S.E.2d 806; Pre-
cision Castings Co. v. Boland, supra [D.C., 13
F.Supp. 877, 2 Cir., 85 F2d 15]; Warren v. Indiana
Telephone Co., 217 Ind. 93, 26 N.E.2d 399: Miller
v. Price, 282 Ky. 611, 139 S.W.2d 450; Union In-
demnity Co. v. Saling, 166 Okl. 133, 26 P2d 217”

315 P2d 533
St. Joseph Stock Yard Co. v. United States, 80 L.Ed 1033;

298 US 38 - 94 (U.S. Sup. Ct. 1936)

“When the legislature acts directly, its action is
subject to judicial scrutiny and determination in
order to prevent the transgression of these limits
of power. The legislature cannot preclude that
scrutiny of determination by any declaration or leg-
islative finding. Legislative declaration or find-
ing is necessarily subject to independent judicial
review upon the facts and the law by courts of com-
petent jurisdiction to the end that the Constitution
as the supreme law of the land may be maintained.”
80 L.Ed 1041

“Legislative agencies, with varying qualifications
work in a field peculiarly exposed to political de-
mands. Some may be expert and impartial, others
subservient. It is not difficult for them to observe
the requirements of law in giving a hearing and

49a

receiving evidence. But to say that their findings
of fact are conclusive where constitutional rights
of liberty and property are involved, although the
evidence clearly establishes that the findings are
wrong and constitutional rights have been invaded,
is to place those rights at the mercy of administra-
tive officials and seriously impair the security in-
herent to our judicial standards.” 80 L.Ed 1041

“The first distinction is between issues of law and
issues of fact. When dealing with constitutional
rights (as distinguished from privileges accorded
by the government) ... there must be the opportu-
nity of presenting in an appropriate proceeding, at
some time, to some court, every question of law
raised, whatever the nature of the right invoked or
the status of him who claim it.” 80 L.Ed 1054
Brandeis concurring

“The supremacy of law demands that there shall
be opportunity to have some court decide whether
an erroneous rule of law was applied; and whether
the proceeding in which the facts were adjudicated
was conducted regularly. To that extent, the per-
son asserting a right, whatever its source, should
be entitled to the independent judgement of a court
on the ultimate question of constitutionality.” 80
L.Ed 1058 Brandeis concurring

Strand v. Hansen, 614 F2d 572 (U.S. Ct. App., 7th Cir.)

50a

“Compensation Acts, to be within constitutional
limits, must not be arbitrary, unreasonable, or fun-
damentally unjust or oppressive.” 614 P2d 576,
Citing Marshall v. Mahony

Supervisors v. United States, 18 L.Ed 419; S.C. Wall 435
- 447; 71 US 435 (U.S. Sup. Ct. 1867)

“The conclusion to be deduced from the authori-
ties is, that where power is given to public offic-
ers, in the language of the Act before us, or in
equivalent language - whenever the public inter-
est or individual rights call for its exercise - The
language used, though permissive, is in fact pe-
remptory. What they are empowered to do for a
third person, the law requires shall be done. The
power is given not for their benefit but for his. It
is placed with the repository to meet the demands
of justice. It is given as a remedy to those entitled
to invoke its aid, and who would otherwise be re-
mediless. In all cases, it is held that the intent of
the legislature, which is the test, was not to de-
volve a mere discretion, but it imposes ‘a positive
and absolute duty’.” The Board of Supervisors of
Rock Island County v. United States on the Rela-
tion of the State Bank, 18 L.Ed 423 (U.S. Sup. Ct.
1847)

Taslich v. Ind. Comm., 262 P 281 (Sup. Ct. 1927)

“The whole scheme of Workmen’s Compensation
Act is designed to work out a speedy adjustment

Sla

and payment of claims for Industrial accidents in
a summary and simple manner.” 262 P 283

Tice v. State Ind. Acc. Comm., 195 P2d 188 (Or. Sup.
Ct. 1948)

“The conclusion to be deduced from the authori-
ties is, that where power is given to public offic-
ers, in the language of the Act before us, or in
equivalent language - whenever the public inter-
est or individual rights call for its exercise - The
language used, though permissive, is in fact pe-
remptory. What they are empowered to do for a
third person, the law requires shall be done. The
power is given not for their benefit, but for his. It
is placed with the repository to meet the demands
of justice. It is given as a remedy to those entitied
to invoke its aid, and who would otherwise be re-
mediless. In all cases, it is held that the intent of
the legislature, which is the test, was not to de-
volve a mere discretion, but it imposes ‘a positive
and absolute duty’.” 195 P2d 192, Citing Super-
visors v. United States

TXO Production v. Alliance Resources, 125 L.Ed 2d 366,
509 US 443, 113 S Ct. 2711 (U.S. Sup. Ct. 1993

“That TXO acted in bad faith by advancing a claim
on those rights on the basis of a worthless quit-
claim deed in an effort to renegotiate its royalty
arrangement with alliance ... and that TXO had
engaged in similar nefarious activities in other

52a

parts of the country.” 125 L.Ed 2d 370

United States v. Dowd, 180 F2d 212 (U.S. Ct. App., 7th
Cir. 1950)

“We hold that when petitioner was denied the right
to appeal within the statutory period, he was de-
prived of a substantial right.” 180 F2d 215

“The court also properly found that the petitioner
has exhausted his state remedies... for no correc-
tive procedure is provided by the State, or if

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1203%3A1. Public record. Not legal advice.