OPC v. Rose , 2017 UT 50 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 50IN THE
SUPREME COURT OF THE STATE OF UTAH
SUSAN ROSE,
Appellant,
v.
OFFICE OF PROFESSIONAL CONDUCT,
Appellee.
No. 20151037
Filed August 15, 2017
On Direct Appeal
Third District, Salt Lake
The Honorable Royal I. Hansen
No. 070917445
Attorneys:
Susan Rose, pro se, Sandy, for appellant
Adam C. Bevis, Billy Walker, Salt Lake City, for appellee
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUDGE POHLMAN joined.
Having been recused, JUSTICE HIMONAS does not participate herein;
COURT OF APPEALS JUDGE JILL M. POHLMAN sat.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 The district court disbarred Susan Rose for violations of
Utah’s Rules of Professional Conduct in cases Rose handled in both
federal and state courts. Her disbarment came after the district court
struck her answer and entered default judgment against her. The
disbarment did not come suddenly, or by surprise. Over the course
of several years, Rose had received multiple warnings from multiple
tribunals. These tribunals called her motion practice “bizarre,”
ROSE v. OPC
Opinion of the Court
“inscrutable,” “dilatory,” “frivolous,” “legally meritless,” “wholly
superfluous,” “utter[ly] incomprehensibl[e],” “unresponsive,
immaterial, and redundant,” and “not based in reality.”
¶2 After receiving and investigating referrals concerning Rose’s
conduct, the Office of Professional Conduct brought an action in the
Third District Court. Nearly eight years later, the district court struck
Rose’s answer and entered default judgment, concluding that Rose
had abused the discovery and litigation process. By entering default
judgment, the court accepted as true the allegations that Rose had
violated a number of the Rules of Professional Conduct.
¶3 At her subsequent sanctions hearing, Rose refused to defend
herself. She told the district court, “I think it’s fair to say I know how
this will go, I know how the end result will be, and I’m done.” And
in the end, Rose was disbarred.
¶4 Rose does not explicitly argue on appeal that the district
court should not have entered default judgment, that her conduct
did not violate the rules, or that disbarment was too harsh a
sanction. 1 Instead, she claims that Utah’s process is unconstitutional
in a number of ways. She contests this court’s jurisdiction and argues
that the Supremacy Clause and principles of res judicata prevent
Utah from disciplining her. She also brings a number of
constitutional claims, arguing that Utah’s attorney discipline
proceedings violated her due process and equal protection rights
under the United States Constitution. She ultimately petitions this
court to dismiss this case entirely because “Utah’s system is an
inquisition” that violates her due process and equal protection rights
and is therefore “void.”
¶5 We affirm the order of the district court but note that this is
an unusual case. The district court entered a default judgment
against Rose, and Rose chose not to defend herself at the sanctions
hearing. Rose has not directly challenged the decision to enter
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1 There can be no doubt that Rose believes that the district court
should not have entered default, that she did not violate the rules of
professional conduct, and that disbarment was not an appropriate
sanction. But Rose does not aim fire directly at those contentions,
preferring instead to attack this court’s jurisdiction and to assert that
Utah’s attorney discipline process is unconstitutional.
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Opinion of the Court
default or the appropriateness of disbarment as a sanction. This
requires us to start from the factual premise that Rose committed the
violations of which she was accused. We are only left to sort through
Rose’s challenges to the attorney discipline system.
BACKGROUND
¶6 Susan Rose was admitted to the Utah State Bar in 1997. In
2001 and 2005, the Utah Bar received two informal complaints
against Rose in two separate cases—one in federal court and the
other in state court.
I. The Federal Court Case
¶7 In 1999, Rose represented a group of plaintiffs in an action
before the Navajo Tribal Court. The Tribal Court granted Rose’s
clients relief. Rose later tried to enforce the Tribal Court’s order
against San Juan County and several non-tribal member defendants
in federal district court. Her case was assigned to Judge Dale
Kimball.
¶8 While representing her clients in federal court, Rose filed
several pleadings and motions that the court found to be frivolous.
After Judge Kimball granted a motion to dismiss against certain
defendants based on sovereign immunity and then dismissed the
case as to several other defendants for lack of jurisdiction, Rose filed
a notice of appeal in the Tenth Circuit Court of Appeals. She also
moved to disqualify Judge Kimball.
¶9 In Rose’s motion to disqualify Judge Kimball, Rose
emphasized Judge Kimball’s apparent religious affiliation. Rose
complained that “being a member of said Church and an
acknowledged social leader in Utah, [if he] would have ruled to
enforce the civil rights of the Navajo Court plaintiffs, Judge Kimball
may have been subjected to great social and political pressures.”
Rose claimed that ruling in her clients’ favor would have caused
Judge Kimball “political and social embarrassment.”
¶10 The judge did not agree, and he told her so. He explained
that Rose and her clients would “not find a judge more sympathetic
to their claims, more willing to apply the law impartially, or more
patient with [Rose’s] blundering-but-probably-well-meaning
efforts.” (Emphases in original.) Judge Kimball nevertheless recused
himself because he believed that her clients “ha[d] lost faith in th[e]
court’s ability to treat them impartially.”
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¶11 Judge Kimball’s opinion and recusal order describe Rose’s
conduct before his court and her competence as an attorney:
• The court had been “tolerating [Rose’s] repeated and
time-consuming calls to chambers with procedural
questions and also tolerating Plaintiffs’ often
incomprehensible pleadings and memoranda.”
• “Defendants have repeatedly—‘and justifiably’—
requested . . . that the court dismiss Plaintiffs’
Complaint based on ... its utter
incomprehensibility and its failure to identify which
claims are alleged against which Defendants. This
court, however, . . . has chosen . . . to endure
Plaintiffs’ inscrutable Complaint.”
• “Plaintiffs [filed a] constant stream of motions,
corrections to motions, amendments to motions, re-
filing of motions after the responsive memorandum
had been filed by the Defendants, and further
briefing of motions after oral arguments.”
• “[T]he court has clearly demonstrated its frustrations
with Plaintiffs and their counsel for their failure to
understand the law or to follow the Federal Rules of
Civil Procedure, the local rules, and the Rules of
Professional Conduct.”
• “Plaintiffs also cast various aspersions regarding this
court’s alleged statements during oral arguments,
without any citations to transcripts to demonstrate
that such statements were actually made and the
context in which they are made. To the extent that
there exists any kernel of truth in any of the various
statements that Plaintiffs allege that the court made,
the statements, not surprisingly, have been taken
entirely out of context and/or
mischaracterized . . . .”
• “[I]t was apparent in various memoranda and oral
arguments throughout this litigation that Plaintiffs
and their counsel do not appear to understand the
concepts of [the prior] Orders or the reach of the
Orders, as they have repeatedly mischaracterized
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Opinion of the Court
and/or misrepresented various statements in the
Order.”
• “Only in this case would one find (1) Plaintiffs’
counsel attempting to represent a Defendant in the
same case; (2) a Defendant who opposes his
dismissal from the case; and (3) Plaintiffs claiming
that the court’s bias against Plaintiffs is reflected in
the court’s purported interference with a
Defendant’s filing of a responsive pleading.”
(Emphases in original.) Judge Kimball remarked that, in short, it was
“clear that [Rose’s] perception is not based in reality.”
¶12 The case was reassigned to Judge Bruce Jenkins. Judge
Jenkins dismissed several claims against the remaining defendants.
Rose in turn filed motion after motion, amendments to motions,
objections to rulings, and motions for reconsideration. Judge Jenkins
ultimately dismissed all claims against the remaining defendants for
a lack of any factual basis for any claim.
¶13 Over the next three years, Rose continued to deluge the
court with her motion practice. Finally, in 2005, Judge Jenkins issued
a 172-page memorandum decision clarifying his 2002 pretrial
hearing ruling.
¶14 Judge Jenkins’s order also commented on Rose’s conduct
before his court and her competence as an attorney:
• “[G]leaning the elements of a particular antitrust law
violation from the dense thicket of the plaintiffs’
pleadings, original and amended, proves a
daunting and largely fruitless task.”
• “[I]t becomes apparent that many of plaintiffs’
theories of liability had already failed as a matter of
law—one because the statute in question simply
does not afford Plaintiffs a private civil remedy, the
others because they are legally meritless.”
• “[Plaintiffs’] claims may properly be dismissed as
frivolous . . . because they are based upon an
indisputably meritless legal theory, or are footed
upon conclusory assertions rather than specific
facts.”
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• “From the commencement of this litigation,
plaintiffs’ counsel has taken a dramatically different
approach to pleading . . . claims, at times shuffling
each plaintiff’s factual allegations and legal
assertions together as one would a deck of playing
cards, sacrificing narrative sequence in favor of
argumentative characterizations and conclusory
assertions.”
¶15 Even after the district court had entered its final judgment
and exhaustively explained the basis for its decision, Rose continued
to file motions in the federal district court. She also filed a pleading
in the Tenth Circuit asking it to recuse Judge Jenkins. Judge Jenkins
responded to Rose in an order stating that the motions before him
were “wholly superfluous.” Judge Jenkins pronounced “enough is
enough” and refused to entertain any further motions in the case
until the Tenth Circuit had decided Rose’s motion to recuse.
¶16 At various points before that, Rose had moved the federal
district court to recuse Judge Jenkins. Judge Jenkins denied each of
Rose’s five motions to recuse him. He denied her motions “for lack
of the requisite factual grounds that would cause an objective
observer reasonably to question the court’s impartiality.” He
reminded Rose that each of her clients’ claims had been dismissed
years earlier as “frivolous.” He further mused that “[t]he underlying
purpose of the plaintiffs’ recusal motions may be discerned in the
particular relief . . . sought: disqualification of the entire bench of the
District Court of Utah” for a judge with a “more favorable view of
the Plaintiffs’ theories of jurisdiction and liability.” (Emphasis in
original.)
¶17 Rose appealed Judge Jenkins’s decision to the Tenth
Circuit, and Judge Jenkins issued another order that “no further
motions may be filed in this case” pending a mandate from the
Tenth Circuit. The Tenth Circuit dismissed Rose’s appeal as
“frivolous.” But Rose continued to file motions. In 2007, Judge
Jenkins issued an opinion stating, “[a]t some point, litigation must
come to an end, and judgments must become final. For plaintiffs . . . ,
this case has indisputably reached that point.”
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Opinion of the Court
II. The State Court Case
¶18 Rose represented a mother in Utah State Court after the
mother’s child’s grandparents filed a petition for visitation. The case
was assigned to Seventh District Court Judge Lyle R. Anderson.
¶19 Rose questioned whether the Navajo Nation Tribunal or
the Utah State Court had jurisdiction to hear the case and eventually
moved to stay the State Court proceedings. Judge Anderson set a
hearing on Rose’s motion to stay for February 2005. On the morning
of the hearing, Rose claimed she could not attend the hearing
because a Navajo Tribal Court Order provided that anyone
appearing in the State Court action would be subject to confinement
for a year or a $5,000 fine. She also objected to all proceedings in the
case until the issue of jurisdiction could be determined. Even so,
Judge Anderson heard testimony from the witnesses who had
appeared that day and issued an order two days later.
¶20 Like Judge Kimball and Judge Jenkins, Judge Anderson
commented on Rose’s conduct before the court and her competence
as an attorney:
As an initial matter, the court notes that the quality of
the pleadings filed in the case on behalf of the Mother
suggest that [Rose] is only marginally competent, if
that, to practice law in Utah. The clerk is directed to
make copies of all pleadings filed by counsel in this
case and submit them with a copy of this order to the
Office of Disciplinary Counsel of the State of Utah.
¶21 Judge Anderson explained that Rose’s claim that she was
forbidden to appear in the State Court action was “entirely self
imposed” because her client sought and obtained the order
forbidding appearances in the State Case. He set another hearing in
the case. On the date of that hearing, Rose filed a motion to
disqualify Judge Anderson. Judge Anderson referred the motion to
Judge Scott Johansen for review. A few days later, Judge Johansen
issued an order:
• Rose’s motion to disqualify Judge Anderson was
untimely except as to “an undated threat to refer
Judge Anderson to the ‘Judicial Misconduct
Committee.’”
• Rose’s allegations against Judge Anderson “fell
woefully short of the standard.”
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Opinion of the Court
• “The interjection of these other issues is so bizarre as
to raise serious questions of compliance with Rule
11 URCP . . . . [R]espondent’s counsel is directed to
appear and show cause why the inclusion of the
requests and issues wholly irrelevant to a Rule 63
Motion, failure to sign the affidavit, filing an
untimely motion, objecting to a reviewing judge
who is clearly authorized by the rule, and alleging
facts well below the legal standard for
disqualification, do not constitute a violation of
Rule 11.”
¶22 Rose objected to the proceedings, and the court sanctioned
her. It ordered Rose to pay attorney fees and submit a report
regarding the standard for judicial disqualification. 2 Rose then filed a
suit against the grandparents in federal court, which was dismissed
for lack of jurisdiction. After that case was dismissed, Rose
attempted to appeal to the Tenth Circuit, and that appeal was also
dismissed for lack of jurisdiction. Rose also filed a writ of certiorari
before this court in 2005. Grandparents eventually dismissed their
claims.
III. OPC’s Prosecution
¶23 In the midst of the aforementioned litigation, the Utah Bar
received an informal bar complaint against Rose for her conduct in
the Federal Case and another for her conduct in the State Case. 3 In
February 2004, the Office of Professional Conduct (OPC) served a
Notice of Informal Complaint on Rose for allegations arising from
the Federal Case, and in June 2005 it served a similar notice for
allegations arising from the State Case. Immediately after receiving
the first notice, Rose asked to postpone the investigation to
accommodate concerns about her health. Both cases were delayed
until 2007.
¶24 In September 2007, a three-member screening panel of the
Utah Supreme Court’s Ethics and Discipline Committee heard both
_____________________________________________________________
2As of the date of OPC’s screening panel on this case, Rose still
had not complied with the sanctions order.
3 It is not apparent from the record who referred Rose’s conduct
in the Federal Case to OPC.
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Opinion of the Court
cases. The panel decided probable cause existed that Rose had
violated the Utah Rules of Professional Conduct and recommended
that a formal complaint be filed. In December 2007, OPC filed a
Complaint in district court alleging twelve violations of seven rules. 4
The case was assigned to Judge Robert Faust in the Third District
Court.
¶25 To illustrate how the case proceeded, OPC’s Complaint
against Rose comprises pages 1–25 in a 28,000+ page appellate
record; Rose’s answer does not appear until page 2,507. Her answer
was filed more than a year after OPC filed the Complaint. In the
interim, Rose moved for various extensions of time, for a more
definite statement, for dismissal, for change of venue, to file an over-
length brief, to stay proceedings, to strike various portions of the
Complaint before responding, to strike the Complaint itself, and to
disqualify Judge Faust—among other things.
¶26 Rose filed many of these motions in lieu of answering
despite court orders fixing a deadline for Rose to answer the
Complaint. For example, the court ordered Rose to answer the
Complaint within ten days on May 21, 2008. When Rose failed to
comply, on July 29 the court cautioned Rose that if she did not
answer OPC’s Complaint, “default could be entered.” On August 14,
the court again ordered Rose to answer within ten days or suffer
entry of default judgment. The court repeated its order on September
19, giving Rose until September 29 to answer. Rose filed a motion to
disqualify Judge Faust, who recused himself so as to not cause
further delay.
¶27 The case was reassigned to Judge Vernice Trease. At a
hearing before Judge Trease on December 4, the court ordered Rose
to respond to the Complaint by January 26, 2009. Rose failed to
appear at a hearing in the matter on January 16. She also failed to
meet the court’s January 26 deadline. On January 27, OPC filed a
motion for entry of default judgment citing Rose’s refusal to obey
court orders and respond to the Complaint.
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4 Rule 1.1 Competence; Rule 1.7 Conflict of Interest with Current
Clients; Rule 3.1 Meritorious Claims and Contentions; Rule 3.2
Expediting Litigation; Rule 4.2(a) Communicating with Persons
Represented by Counsel; Rule 8.2 Judicial Officials; and Rule 8.4 (a),
(d) Misconduct.
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Opinion of the Court
¶28 In February, Rose submitted a document titled
“Respondent’s Forced Answer as Ordered by the District Court . . .
Issued from the Bench as Outside the Court’s Jurisdiction to Order.”
In her “Forced Answer,” Rose refused to recognize the court’s
jurisdiction over her attorney discipline case. She called the entire
case “void ab initio,” argued that answering the Complaint would
immediately harm her clients, and claimed that the court’s order
requiring her to answer the Complaint “constitutes duress.”
¶29 Rose’s motion practice continued. Over the next year, she
moved for extensions of time, to stay the proceedings, and to strike
various parts of the Complaint. Rose eventually filed a document
titled “Compliance with the Court’s January 29 and February 2
Orders.” There she claimed OPC’s action against her was
unconstitutional. Rose invoked her Fifth Amendment right against
self-incrimination and claimed she did not have to produce
documents in discovery because they were “irrelevant and
production does not apply.” She repeated the following answer
verbatim in response to almost all of OPC’s requests for admission:
This attorney lacks the resources and time and money
to go through the [requested] document page by page
and word by word to ascertain if this document is true
and correct as a copy, therefore this attorney does not
know if it is, and therefore denies.
Certified copies of all orders are available to the Bar
from the 7th District Court, and federal court sources.
This admission has nothing to do with the category of
charges in the Bar complaint, and is irrelevant to this
prosecution. If the Bar wishes to show the relevance to
the charges in the Bar’s complaint, this attorney may
wish to supplement this answer.
I also state that I fear anything I say, as to this
admission request will be used against me to also be
used to subject me to an unknown punitive or criminal
prosecution, of an unspecified nature, and therefore I
claim my 5th [sic] United States Constitution’s 5th
Amendment protection against self incrimination, to
remain silent as to this admission.
(Emphasis in original).
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¶30 Rose also refused to respond to OPC’s interrogatories
asking her to identify any lay or expert witnesses she intended to
call, to describe any mitigating circumstances she believed existed, to
disclose her fee arrangements with plaintiffs in the underlying cases,
or to describe interactions with her clients. Rose responded by
claiming that most of the interrogatories OPC propounded were
“irrelevant, immaterial” or called for privileged attorney work
product. She also attempted to invoke her Fifth Amendment right to
remain silent for fear of future “punitive or criminal prosecution, of
an unspecified nature.”
¶31 And in response to OPC’s requests for production of
documents, Rose again continued her practice of pleading the fifth
and claiming that OPC’s requests were irrelevant.
¶32 OPC moved the district court to strike Rose’s answer and
enter default judgment. OPC reasoned, “it appears that Ms. Rose will
continue to delay and obstruct this case going to trial on the merits.”
It claimed, “Rose has asserted privileges that do not apply and made
arguments upon which this Court has already ruled.” OPC argued
that under Utah Rule of Civil Procedure 37(b)(2)(C), 5 the court
should strike Rose’s answer as a sanction for frustrating the judicial
process, because “failure to respond to discovery impedes trial on
the merits and makes it impossible to ascertain whether the
allegations of the answer have any factual merit.” At a hearing on
OPC’s motion, Rose told the court, “I do not believe . . . I have been
incompetent, immoral, fraudulent or in any other respect deleterious
in my representation. . . . I’ve given my very best. And if I had to do
it all over again, despite the Bar’s prosecution, I would do it. I would
do it again.”
¶33 In July 2010, the district court granted OPC’s motion to
strike Rose’s answer and entered default judgment. Judge Trease’s
order echoed the observations Judges Kimball, Jenkins, Anderson,
and Johansen had made about Rose’s practice style:
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5 The current rule permits the district court to “dismiss all or part
of the action, strike all or part of the pleadings, or render judgment
by default on all or part of the action” under subsection (b)(4), not
(b)(2)(C), of Utah Rule of Civil Procedure 37.
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Opinion of the Court
• “Generally, throughout the proceedings in this
court, Respondent’s motions have been repetitive
and often barely comprehensible as to the court
rules and law on which she relies. Respondent’s
persistent submissions have unnecessarily stalled
the proceedings since December 12, 2007.”
• “Respondent has filed numerous motions to dismiss
for lack of subject matter jurisdiction. . . . Each time,
the court ruled that it had jurisdiction; each time
none of the facts or circumstances changed.
Respondent continues to fail to understand that
OPC may bring an action in this court for
Respondent’s conduct in a federal district court
matter.”
• “The court has accommodated Respondent
throughout the duration of these proceedings. It has
granted Respondent numerous extensions to file
her Answer. Respondent has filed countless
motions to stay, motions for summary judgment,
and motions to dismiss over the past two years,
most of which are redundant, repetitive and frankly
can be viewed as nothing less than attempts to stall
the progression of this case and frustrate the
judicial process.”
• “After her first failure to respond, Respondent
should have understood the court’s order to
compel. Nonetheless, Respondent’s February 12
response is the same in that it is unresponsive,
immaterial, and redundant.”
• “OPC is unable to move forward without the
evidentiary basis of Respondent’s denials from her
Answer. In presenting the same arguments she
knows the court has already rejected, it is hard to
view Respondent’s conduct as anything but
persistent dilatory tactics.”
• “Based on the Respondent’s conduct in this matter,
this case cannot proceed to trial on the merits.”
• “The court finds on the part of the Respondent
willfulness, bad faith, and persistent dilatory tactics
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in her continuing failure to comply with the court’s
order and for her failure to provide sufficient
discovery responses. . . . The court sanctions
Respondent under rule 37(b)(2)(C) by striking
Respondent’s Answer and declaring a default
judgment.”
IV. The Long and Winding Road
to a Sanctions Hearing
¶34 Rose continued to file motion after motion, delaying the
second half of the attorney discipline process—the sanctions hearing.
A sanctions hearing was finally scheduled for February 2012—about
four years after OPC had filed its initial Complaint. Rose, however,
failed to appear. Instead, she filed an “Emergency Motion to
Reschedule Sanctions Hearing,” because her father was dying and
she felt “mentally and emotionally absolutely incapable of
functioning for the hearing.” Based upon the language in her
request, OPC’s 2009 motion to put Rose on disability status, and
“another incident . . . less than a year ago, when Ms. Rose was
hospitalized,” Judge Trease placed Rose’s bar membership on
disability status and ordered that the sanctions hearing be
rescheduled to a later date. Judge Trease reasoned that this course of
action was warranted because Rose’s language suggested she was
incapable of defending herself. Rose was taken off disability status
the next year at her request.
¶35 In 2013, the second phase of the attorney discipline process
commenced and the case was transferred to Judge Constandinos
Himonas. 6 Rose immediately began moving the court to dismiss for
lack of due process, to set aside the default judgment, to dismiss for
forum non conveniens, for a restraining order against all OPC
prosecutions of anyone practicing in federal court, for sanctions
against OPC, and for a permanent injunction, among others.
¶36 A sanctions hearing was scheduled for March 12 and 13,
2014. On the first day of the hearing, Rose moved to disqualify both
opposing counsel and Judge Himonas. Judge Paul Parker considered
Rose’s Rule 63 motion to disqualify Judge Himonas. Judge Parker
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6 Because of his involvement with this case while serving on the
district court, Justice Himonas does not participate in this matter.
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Opinion of the Court
denied Rose’s motion because she argued that Judge Himonas was
“legally incorrect in his decisions concerning jurisdiction, evidence[,]
and other matters” and not, as the rule requires, that he was biased,
prejudiced, or conflicted in any way. The sanctions hearing
proceeded and lasted two days. The hearing was continued until
April 7 after a delay to determine the outcome of Rose’s motion to
disqualify. The court heard evidence and continued the hearing to
April 10.
¶37 On April 10, Rose appeared with counsel and filed an
“Emergency Motion to Suspend Sanction Hearing.” She presented
the court with a novel though unavailing argument: that Judge
Trease’s entry of default judgment was only “implied” and,
therefore, the sanctions hearing was both premature and a violation
of her due process rights. Through counsel, Rose argued:
Since the Court has apparently never indicated that it
has actually determined . . . that Ms. Rose has actually
violated any of the provisions of the Code of
Professional Conduct, it does not appear that the Court
even in its own mind has found her guilty of anything
yet.
Judge Himonas refused to grant Rose’s “Emergency Motion” for an
indefinite suspension of the proceedings; instead, “out of an
abundance of caution,” he continued the hearing “to allow briefing
on the[] legal issues” Rose presented. He warned that the scope of
the briefing should be confined to issues that had not already been
addressed: “[T]here is no opening here for issues that have been
raised and rejected.” A hearing on Rose’s motion was scheduled to
take place June 18. But Rose’s counsel filed a number of requests for
extension, and Rose also filed a number of other motions.
¶38 The court heard argument in December 2014, and issued a
Memorandum Decision in February 2015. In his decision, Judge
Himonas explained that the court had subject matter jurisdiction
over the attorney discipline proceedings. After Judge Himonas was
confirmed a member of this court, the case was transferred to Judge
Royal Hansen.
¶39 In response to Judge Himonas’s memorandum decision,
OPC moved to reset the sanctions hearing. It argued
[t]he Sanctions Hearing . . . was continued mid-hearing
when Ms. Rose filed an ‘emergency’ motion to
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dismiss. . . . There is nothing pending before the Court
on an emergency basis and the matter should be
immediately reset to conclude the Sanctions Hearing so
that the parties and the Court are not prejudiced by
further delay in the case.
¶40 Rose opposed OPC’s request, rearguing—this time to Judge
Hansen—that no default entry had ever been entered. She further
moved to dismiss the matter. Judge Hansen denied these motions
and scheduled a two-day sanctions hearing for August 17 and 18,
2015, giving “each party six hours to present their case.”
V. The Sanctions Hearing
¶41 On the morning of the first day of trial, Rose entered her
appearance, then told Judge Hansen:
I feel like there have been enough due process issues,
equal protection issues, violation of uniform operation
of laws, open court provisions, on and on and on. And
then the particular problems with entering the default,
plus the fact that the default memorandum stated a
certain relief and the proposed order tried to go
beyond that . . . and so . . . I’ve reached the end of my
road. . . . because I don’t know how to say I mitigate
these charges, because, unbelievably, I still do not
understand those charges. I deny them—and—but I
cannot prove my innocence. I don’t know how to prove
innocence. . . . And—and we haven’t had a trial on the
default judgment first. But it’s a technical issue, . . . and
I think what I’m going to do right now is—it took
seven—seven and a half years to get some very fine
explanatory orders from the Court, explaining to me
. . . why and where and what for. But at this point, I
believe any defense I might try to raise would be futile.
And if I’m—if I’m not admitting to a claim, I don’t
know how to say—unmitigate it, you know? I—I don’t
know how that works. . . . I’m just taking a default on
it. . . . So I’ll leave here. . . . My defenses are with the
appellate court. . . . I think it’s fair to say I know how
this will go, I know how the end result will be, and I’m
done.
Rose then left the hearing and did not return.
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Opinion of the Court
¶42 In November, Judge Hansen issued his findings of fact,
conclusions of law, and order disbarring Rose. He explained that
Rose chose to leave after he invited her to stay multiple times and
“indicated that if she chose to leave, the hearing would go forward
without her participation.” He also explained that “[a]s a result of
the Default, the Court must accept all of the allegations in the
Complaint as true,” while also noting, “however, that evidence in
support of these allegations was presented at the Sanctions
Hearing.”
¶43 Although unnecessary because of the earlier default
judgment, Judge Hansen concluded that Rose had violated the
following Rules of Professional Conduct: Rule 1.1 Competence; Rule
1.7 Conflict of Interest with Current Clients; Rule 3.1 Meritorious
Claims and Contentions; Rule 3.2 Expediting Litigation; Rule 4.2(a)
Communicating with Persons Represented by Counsel; Rule 8.2
Judicial Officials; and Rule 8.4 Misconduct. Judge Hansen also
drafted an order that recited the evidence presented that
demonstrated Rose had violated the Rules of Professional Conduct.
¶44 For example, Judge Hansen concluded that Rose had
violated rule 1.1, competence—mandating that “[a] lawyer shall
provide competent representation to a client,” UTAH R. PROF’L
CONDUCT 1.1—in the Federal Case when she “filed numerous
pleadings and claims . . . that were not supported by the facts or law,
and which contained inaccurate information.” She violated the same
rule in the State Case when she “filed numerous pleadings which
were only marginally competent; failed to comply with the Rules of
Civil Procedure; and failed to apply the appropriate law to the facts
in her case.”
¶45 The court held that Rose violated rule 1.7, conflicts of
interest with current clients—mandating that “a lawyer shall not
represent a client if the representation involves a concurrent conflict
of interest,” id. 1.7(a),—in the Federal Case when she
“communicated with and attempted to represent a Defendant in the
litigation whose interests were directly adverse to those of [her]
clients, the Plaintiffs.”
¶46 Judge Hansen also concluded that Rose had violated rule
3.1, meritorious claims and contentions—mandating that “[a] lawyer
shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis in law and fact for doing so that
is not frivolous, which includes a good-faith argument for an
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extension, modification or reversal of existing law.” Id. 3.1. Rose
violated this rule in the Federal Case when she “filed numerous
claims, pleadings and appeals that were not supported by the facts
and law, and which were not supported by a good faith argument to
extend, modify or reverse the existing laws.” She violated the same
rule in the State Case when she “filed numerous claims, pleadings
and appeals that were not supported by the facts and law, and nor
did the filings contain any good faith arguments for any changes to
existing law.”
¶47 Judge Hansen further determined that Rose had violated
rule 3.2, expediting litigation—mandating that “[a] lawyer shall
make reasonable efforts to expedite litigation consistent with the
interests of the client.” Id. 3.2. She violated this rule in the Federal
Case when she “filed a constant stream of motions, corrections to
motions, amendments to motions, filed corrected or amended
motions after the opposing parties had filed their response, filed
lawsuits on other courts, and filed appeals which had no basis.” She
had also “failed to understand the law or follow the Rules of Civil
Procedure, the local rules, and the Rules of Professional Conduct.”
Judge Hansen determined that “[t]hese unnecessary filings and
actions served only to delay the proceedings.” Rose violated the
same rule in the State Case for the same reasons.
¶48 Rose had further violated rule 4.2(a), communication with
persons represented by counsel—mandating that “a lawyer shall not
communicate about the subject of the representation with a person
the lawyer knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer.” Id. 4.2(a).
Judge Hansen determined that Rose had violated this rule in the
Federal Case when she “communicated with a represented person
who she named as a Defendant in the same case, and knew to be
represented by counsel.”
¶49 Judge Hansen next concluded that Rose had violated rule
8.2, judicial officials—mandating that “[a] lawyer shall not make a
public statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or
integrity of a judge.” Id. 8.2(a). Rose violated this law in the Federal
Case when she filed “a motion to recuse a judicial official and in the
memoranda supporting the motion, . . . made disparaging remarks
about the judge’s integrity and qualifications with reckless disregard
as to the truth or falsity of those statements.”
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¶50 Rose had also violated rule 8.4(d)—providing that it is
misconduct for a lawyer to “engage in conduct that is prejudicial to
the administration of justice,” id. 8.4(d)—in the Federal Case when
she “filed numerous frivolous pleadings and claims” and “continued
to file frivolous pleadings even after being warned and
sanctioned. . . . caus[ing] significant delays and expense.” And Rose
violated the same rule in the State Case for the same reasons as in the
Federal Case.
¶51 Judge Hansen finally determined that Rose had violated
Rule 8.4(a)—providing that it is misconduct for a lawyer to “violate
or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of
another,” id. 8.4(a)—in both the Federal Case and the State Case “[a]s
described herein.” 7
VI. Choosing the Appropriate Sanction
¶52 In determining the appropriate sanction for Rose’s
violations in the Federal Case and in the State Case, the court
considered a number of factors: (1) the duties Rose violated; (2) her
mental state; (3) the potential or actual injury caused by her
misconduct; and (4) aggravating or mitigating factors.
¶53 The court found that Rose violated duties she owed to her
clients “by continuing to pursue matters that had no hope for a
positive outcome and by failing to give her clients an honest
interpretation of the facts and law.” She breached her duties to
_____________________________________________________________
7 We have expressed that “we are troubled by the practice of
sanctioning attorneys for violating rule 8.4(a) based solely on their
violations of other rules” because “it seems that the rule amounts to
no more than a ‘piling on.’” In re Discipline of Brussow, 2012 UT 53,
¶ 1 n.1, 286 P.3d 1246. And as note 1a of this rule explains, “A
violation of paragraph (a) based solely on the lawyer’s violation of
another Rule of Professional Conduct shall not be charged as a
separate violation.” But as we explain above, Rose does not
expressly challenge the district court’s conclusion nor the
proportionality of the sanction she received. Because we do not
believe that the rule 8.4(a) violation was material to the district
court’s decision to disbar Rose, we raise the issue only to emphasize
our continued discomfort with this application of the rule.
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Opinion of the Court
opposing counsel “by consistently misstating the facts and filing
frivolous motions that only served to delay the inevitable outcome of
the cases.” She also breached her duties to the legal system “by not
complying with Court orders” or “respecting the Courts when they
rule against her, and by filing numerous motions to disqualify based
solely on the fact that the Courts did not agree with her position.”
Finally, Rose breached her duties to the public “by her flagrant
disregard for the legal process” and the “relentless pursuit of her
own agenda without regard for court rulings and without respect for
the other side, weak[ening] the public trust of attorneys and in the
judicial system.” The court found that Rose had “knowingly and
intentionally” violated these rules.
¶54 The district court also found that her conduct had caused
“real or potential injury” to the parties in the underlying cases and to
the legal system. The “immeasurable waste of resources” that
multiple court systems and their staffs and opposing counsel and
their staffs spent dealing with her “constant barrage of motions and
cases” directly injured those parties. The district court opined that
Rose’s conduct poorly reflected on the “public’s perception of how
attorneys should behave.” And her “unfounded disparaging
remarks about judicial officers further has the potential of damaging
their reputation and the legal system itself.” The court stated that
parties and opposing counsel had presented evidence of the personal
and economic losses Rose’s misconduct imposed upon them.
¶55 Because Rose left the first hearing and did not appear at the
second hearing, she presented no evidence of mitigating factors.
Judge Hansen, nevertheless, concluded that some mitigating factors
were apparent on the record: Rose’s relative inexperience and lack of
supervision and mentorship at the time she violated the rules.
“However,” Judge Hansen wrote, “the Court does not give great
weight to these factors because Ms. Rose persisted in her misconduct
for several years, even after multiple judges in different courts
admonished her that her conduct did not comply with the Utah
Rules of Professional Conduct.” Judge Hansen noted that ten years
had passed since Rose had been notified that there was an informal
complaint against her but that she had persisted in “the same type of
misconduct and activities” that had given rise to the complaint.
¶56 Conversely, the district court found evidence of the
following aggravating factors: (1) dishonest or selfish motive;
(2) pattern of misconduct; (3) multiple offenses; (4) obstruction of the
disciplinary proceeding by intentionally failing to comply with rules
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Opinion of the Court
or orders of the disciplinary authority; (5) submission of false
evidence, false statements, or other deceptive practices during the
disciplinary process; (6) refusal to acknowledge the wrongful nature
of the misconduct involved, either to the client or to the disciplinary
authority; and (7) lack of good faith effort to make restitution or to
rectify the consequences of the misconduct involved.
¶57 For example, Rose had been sanctioned by the state district
court, the United States District Court, and the Tenth Circuit Court
of Appeals, and had been enjoined from filing further actions in
either of the federal courts unless she complied with strict
conditions. But, as the district court noted, she continued on with her
“continuous and extensive” “extreme litigious conduct.”
Furthermore, the district court commented that Rose seemed to be
motivated by factors outside of her clients’ best interests in refusing
to accept court orders when courts ruled against her. The district
court noted that “her actions had very little to do with obtaining
relief for her clients and [were] more about winning at all costs and
obtaining her share of any monetary award.” Rose “repeatedly
stated that she is the real victim in this case,” which the court
believed was evidence that “she does not appreciate the wrongful
nature of her conduct.” The court opined that Rose’s refusal to pay
any of her sanctions to opposing parties evidenced her lack of good
faith effort to make restitution.
¶58 The district court determined that regardless of whether the
presumptive sanction was disbarment or suspension, due to
“minimal mitigating factors and compelling aggravating factors,”
disbarment was ultimately the appropriate sanction.
¶59 Rose appeals the district court’s order. We have jurisdiction
under the Utah Constitution. UTAH CONST. art. VIII, § 4; see also Utah
Code § 78A-3-102(c).
STANDARD OF REVIEW
¶60 Our state constitution gives this court “plenary authority to
govern the practice of law. This authority is derived both from our
inherent power and—since 1985—explicit and exclusive
constitutional power.” Injured Workers Ass’n of Utah v. State, 2016 UT
21, ¶ 14, 374 P.3d 14; UTAH CONST. art. VIII, § 4 (“The Supreme Court
by rule shall govern the practice of law, including . . . discipline of
persons admitted to practice law.”); see Barnard v. Utah State Bar, 804
P.2d 526, 528 (Utah 1991) (“[T]he authority of this Court to regulate
the admission and discipline of attorneys existed as an inherent
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Opinion of the Court
power of the judiciary from the beginning.”); In re Burton, 246 P. 188,
199 (Utah 1926) (“[This court’s] power to deal with its own officers,
including attorneys, is inherent, continuing, and plenary, and exists
independently of statute . . . .”).
¶61 “Given our ‘constitutional mandate[,] “the unique nature of
disciplinary actions and our knowledge of the nature of the practice
of law,”’ we apply a somewhat modified standard of review.” In re
Discipline of Bates, 2017 UT 11, ¶ 17, 391 P.3d 1039 (alteration in
original) (quoting In re Discipline of Babilis, 951 P.2d 207, 213 (Utah
1997). “While we will ‘ordinarily presume findings of fact to be
correct and will not overturn them unless they are arbitrary,
capricious, or plainly in error,’ we accord them less deference in
matters of attorney discipline.” Id. (citation omitted). “We maintain
the discretion to draw different inferences from the facts than those
made by the district court,” even though that will not always be the
case. Id. “Additionally, given our unique position regarding attorney
discipline, we ‘make an independent determination as to’ the
correctness of the level of discipline actually imposed, ‘although we
always give serious consideration to the findings and [rulings] of the
[district court].’” Id. (alterations in original) (citations omitted). 8
_____________________________________________________________
8 This case presents a wrinkle on our statement that “we ‘make an
independent determination as to’ the correctness of the level of
discipline actually imposed.” In re Discipline of Bates, 2017 UT 11,
¶ 17, 391 P.3d 1039 (citation omitted). Here, Rose has not explicitly
asked us to determine whether the district court erred in finding that
disbarment was the appropriate sanction. Our oft-repeated
statement that we make an independent determination could be read
as a declaration that we will sua sponte consider the appropriateness
of a sanction. But it is not. We make an “independent determination”
by affording no deference to the district court’s decision. We do not
make a determination independent of a request supported by an
adequately briefed argument.
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Opinion of the Court
ANALYSIS 9
I. Rose’s Briefing is Wholly Inadequate
¶62 Though Rose’s arguments are barely articulable, legally
unsupported, factually unsupported, and fail to provide citations to
the 28,000-page record, we nevertheless do our best to respond to
what she appears to have given us: jurisdictional complaints
referencing the Supremacy Clause and principles of res judicata, and
claims of federal due process and equal protection violations.
¶63 We note at the outset that Rose does not explicitly base an
argument on the claim that she did not commit the underlying
violations the district court found she committed by entering
default. 10 Nor does she explicitly claim that the sanctioning court
applied the wrong sanction to her professional conduct violations.
Instead, Rose launches a broadside attack of Utah’s attorney
discipline system.
¶64 We also want to make plain that while we will do our best
to respond to the substance of Rose’s claims, her arguments are
inadequately briefed. We recently clarified our briefing requirements
in Bank of America v. Adamson, 2017 UT 2, 391 P.3d 196. There we
quoted Utah Rule of Appellate Procedure 24(a)(9), requiring an
appellant’s brief to “contain the contentions and reasons of the
appellant with respect to the issue presented . . . with citations to the
authorities, statutes, and parts of the record relied on.” Id. ¶ 11
(alteration in original). While we reiterated that “[a]n issue is
inadequately briefed if the argument ‘merely contains bald citations
to authority [without] development of that authority and reasoned
_____________________________________________________________
9 Neither Rose nor the Office of Professional Conduct relies upon
an older version of the code or argues that citing an older version of
either the Utah Code or any other law would make a difference to
our resolution of this appeal. We thus cite the current version of the
law.
10 To be clear, it is abundantly apparent that Rose believes that
her conduct in the Federal and State Cases was beyond reproach.
Rose does not, however, attempt to argue how the district court
erred in concluding that her conduct violated the Rules of
Professional Conduct. Nor does she explicitly argue that the district
court erred in striking her answer.
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Opinion of the Court
analysis based on that authority,’” we also explained that
“inadequate briefing [was no longer] an absolute bar to review of an
argument on appeal.” Id. (first and second alterations in original)
(citations omitted). That is because
there is a spectrum of how adequately an argument
may be briefed. On one end, an issue may be argued in
only one sentence without any citations to legal
authority or to the record. On the other, there may be
dozens of pages of argument including volumes of
authority and citations to the record regarding a single
issue. Defining the exact point at which a brief becomes
adequate is not possible, nor is it advisable, as each
issue is different and may require different amounts of
analysis and argument.
Id. We concluded by adopting State v. Nielsen’s language respecting
an appellant’s duty to marshal the evidence: “We clarify that there is
not a bright-line rule determining when a brief is inadequate. Rather,
[a party] who fails to adequately brief an issue ‘will almost certainly
fail to carry its burden of persuasion on appeal.’” Id. ¶ 12 (quoting
State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645). We continued, “from
here on our analysis will be focused on the ultimate question of
whether the appellant has established a [sufficient argument for
ruling in its favor]—and not on whether there is a technical
deficiency in [briefing] meriting a default.” Id. (alterations in
original) (citation omitted).
¶65 We, however, provided some guidance to parties wishing
to improve their chances of meeting that burden of persuasion. We
emphasized “the importance of a party’s thoughtful analysis of prior
precedent and its application to the record.” Id. ¶ 13. We also
instructed that a “party must cite the legal authority on which [an]
argument is based and then provide reasoned analysis of how that
authority should apply in the particular case, including citations to
the record.” Id. And we cautioned that a party who “fails to devote
adequate attention to an issue [will] almost certainly . . . fail to meet
its burden of persuasion.” Id. How much attention is adequate will
vary issue by issue and case by case. 2010-1 RADC/CADC Venture,
LLC v. Dos Lagos, LLC, 2017 UT 29, ¶ 30, --- P.3d --- (“Of course, it is
not the size of an argument that matters. Some parties adequately
brief an argument in a well-crafted paragraph. Others manage to
inadequately brief an argument in fifty pages.”). But at the very
least, an argument should clearly identify the contention, cite
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Opinion of the Court
supporting authority, distinguish contrary authority, cite pertinent
facts in the record (and provide citations to the record so opposing
counsel and the reviewing court can find them), analyze the facts
through the lens of the cited law, and explain what the result should
be. This is the floor upon which any argument should stand.
¶66 Against this backdrop, we will do our best to articulate and
then respond to Rose’s contentions. But our efforts should not be
interpreted as an acknowledgement that Rose has adequately briefed
any of the arguments she has raised. She has not. As we sort through
Rose’s arguments, we add our voice to the chorus of courts who
have found Rose’s briefing to be “bizarre” and “utter[ly]
incomprehensibl[e].” In other words, Rose’s briefing falls well below
the standard we expect from those who practice before this court.
And though she raises many claims, she has not met her burden of
persuasion in arguing any of them.
II. The Utah District and Utah Supreme Courts Have
Jurisdiction to Consider Whether Rose’s Conduct in
Both State and Federal Court Violated Utah’s Rules
of Professional Conduct
¶67 Rose’s main contention is that we do not have jurisdiction
over this case for a number of reasons. Of jurisdiction, Chief Justice
John Marshall wrote that “[w]e have no more right to decline the
exercise of jurisdiction which is given, than to usurp that which is
not given.” Cohens v. Virginia, 19 U.S. 264, 404 (1821). Thus, where we
have jurisdiction we cannot give it up, no matter how “gladly [we
would] avoid” it. Id.¶68 Rose contests our ability to address her actions in the
Federal Case because, she claims, the Supremacy Clause prohibits us
from exercising jurisdiction over discipline arising from her conduct
in federal and Navajo courts. Rose specifically claims that, under the
Supremacy Clause, “there is no legal basis for Utah Courts to have
any jurisdiction to base a disbarment upon questions of law
prohibited to Utah Courts to address, here, defining the contours of
Navajo Nation Courts’ jurisdiction over non Indians.” She further
argues that OPC and district court judges “have not produced any
law supporting this Court having jurisdiction to define Indian
Nation jurisdiction . . . particularly given . . . [the] Supremacy clause
to which this State agreed to abide by in exchange for statehood, as
did all the original colonies also.” Thus, Rose seems to believe that
because she practiced in federal and Navajo courts, the State of Utah
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Opinion of the Court
has no business basing sanctions upon violations of the Utah Rules
of Professional Conduct that are alleged to have occurred there. She
calls our jurisdiction in this case an invasion of “US and [Navajo
Nation] sovereignty.”
¶69 “There is no doubt that the district court ha[s] subject-
matter jurisdiction over . . . disciplinary action[s] . . . .” In re Discipline
of Oliver, 2011 UT 29, ¶ 9, 254 P.3d 181. “A court has subject matter
jurisdiction if the case is one of the type of cases the court has been
empowered to entertain by the constitution or statute from which
the court derives its authority.” See id. ¶ 8. Utah’s constitution gives
the Utah Supreme Court absolute authority to regulate the practice
of law for those licensed here. See supra ¶¶ 60–61. And we have said
that “[t]he district courts of this state have unquestioned authority to
adjudicate matters of attorney discipline.” Oliver, 2011 UT 29, ¶ 9;
UTAH CODE § 78A–5–102(3) (“The district court has jurisdiction over
matters of lawyer discipline consistent with the rules of the Supreme
Court.”). Thus, the district court had jurisdiction to hear Rose’s
attorney discipline case, and we have jurisdiction to consider her
appeal from it.
¶70 Rose appears to contend, without citing any supporting
law, that the Supremacy Clause divests our jurisdiction over
discipline cases when the actions giving rise to the discipline occur
in federal or tribal court. Rather than cite cases, Rose provides an
analogy. Rose explains that while Utah courts have jurisdiction to
hear divorce cases, they do not have jurisdiction to hear Alaskan
divorce cases. But this analogy misses the point. The question of
whether we have jurisdiction over Rose’s discipline case is different
from whether we would have had jurisdiction to hear the underlying
case. We do not have jurisdiction to hear an Alaskan divorce case;
we do, however, have jurisdiction over a Utah attorney who
commits a breach of the rules of professional conduct while
practicing in Alaska. Our Rules of Professional Conduct provide that
a “lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the
lawyer’s conduct occurs.” UTAH R. PROF’L CONDUCT 8.5(a).
¶71 And Utah is not alone in this. Our rule is based upon the
ABA Model Rules of Professional Conduct, rule 8.5(a), which reads
A lawyer admitted to practice in this jurisdiction is
subject to the disciplinary authority of this jurisdiction,
regardless of where the lawyer’s conduct occurs. . . . A
lawyer may be subject to the disciplinary authority of
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Opinion of the Court
both this jurisdiction and another jurisdiction for the
same conduct.
As of 2016, twenty-two states had adopted this rule verbatim; and
twenty-seven jurisdictions, including the District of Columbia, had
adopted a modified version of this rule. AM. BAR ASS’N., VARIATIONS
OF THE MODEL ABA RULES OF PROFESSIONAL CONDUCT, Rule 8.5 (Aug.
15, 2016), https://www.americanbar.org/content/dam/aba/admin-
istrative/professional_responsibility/mrpc_8_5.authcheckdam.pdf.
¶72 Although we have not addressed an argument like the one
Rose appears to make, Colorado has rejected a similar argument. See
People v. Rozan, 277 P.3d 942, 948 n.12, 949 (Colo. O.P.D.J. 2011). In
Rozan, an attorney—Steven Rozan—was licensed to practice law in
both Texas and Colorado. Id. at 946. Rozan and his practice were
housed in Texas, but his client resided in a federal penitentiary in
Colorado called ADMAX. Id. at 945. The Presiding Disciplinary
Judge (PDJ) of the Colorado Supreme Court and the Hearing Board
prosecuted Rozan for knowingly taking his clients funds for his
personal use. Id. at 946. Rozan contested Colorado’s jurisdiction,
reasoning that Colorado lacked jurisdiction both (1) for acts that took
place in Texas and (2) for actions taken while representing a client
who resides in a federal enclave—like ADMAX. Id. at 946–48. In
determining that it did have jurisdiction, the PDJ cited Colorado’s
Rule of Professional Conduct 8.5(a), which provides—like our own
rule 8.5—that “[a] lawyer admitted to practice in this jurisdiction is
subject to the disciplinary authority of this jurisdiction, regardless of
where the lawyer’s conduct occurs.” Id. at 947 (alteration in original).
The Colorado court concluded that the “regulation of attorney
conduct is a matter of state sovereignty.” Id. at 949. It further
concluded that Rozan “is licensed to practice law in Colorado and
this proceeding concerns his practice of law. As such, the fact that
[he] practiced from an office in Texas does not divest the Colorado
Supreme Court, the PDJ, or the Hearing Board of jurisdiction over
this matter.” Id. at 947. Thus, the Colorado Supreme Court
determined that it had jurisdiction to discipline Rozan for his
conduct no matter where it may have occurred. Id. at 949; see also In
re Winstead, 69 A.3d 390, 396 (D.C. 2013) (holding that attorney
licensed in D.C. but practicing in other jurisdictions “is subject to the
disciplinary authority of [the D.C.] jurisdiction, regardless of where
[her] conduct occurs.” (second alteration in original) (citing D.C. R.
PROF’L CONDUCT 8.5(a)); In re Juarez, 24 P.3d 1040, 1067 (Wash. 2001)
(noting that an attorney who practices exclusively in federal court is
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Opinion of the Court
required to adhere to the state rules promulgated by the jurisdictions
in which they are licensed).
¶73 We have jurisdiction to hear and determine attorney
discipline cases even for conduct occurring in federal court. Rose’s
jurisdictional arguments, in addition to being inadequately briefed,
are unavailing. 11
III. Neither Article III of the United States Constitution Nor
Principles of Res Judicata Bar Our Consideration of Rose’s
Conduct in this Case
¶74 Rose also appears to contend that because the federal court
and Navajo Nation Court did not sanction her, neither should this
court. Rose argues that this case is opposing counsels’ attempt to get
a second bite at the apple after their sanctions motions were denied.
Rose contends that when opposing counsel in the federal court
action did not convince a court to sanction her, they referred the
matter to OPC. Rose wraps what is in essence a res judicata question
in a jurisdictional cloak and argues that Utah has no “federal
question jurisdiction” to revisit issues litigated in Navajo and United
States Courts. But her legal argument in support spans a lonely
sentence: “Of course ruling for this Appellant means giving claim
and issue preclusion to retrying Navajo and Federal Court orders in
state courts.” This sentence hardly qualifies as adequate briefing.
¶75 Usually when an appellant argues claim or issue
preclusion—or both, as Rose seems to—we anticipate an analysis of
the elements of one or both of res judicata’s “two distinct doctrines.”
Snyder v. Murray City Corp., 2003 UT 13, ¶ 33, 73 P.3d 325.
Claim preclusion involves the same parties or their
privies and the same cause of action. It “‘precludes the
relitigation of all issues that could have been litigated
as well as those that were, in fact, litigated in the prior
action.’” In contrast, issue preclusion, also known as
collateral estoppel, “arises from a different cause of
action and prevents parties or their privies from
_____________________________________________________________
11 Even if we were to credit Rose’s Supremacy Clause argument,
nothing she raises would have prevented Utah’s courts from
exercising jurisdiction over the allegations arising from Rose’s State
Court case.
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Opinion of the Court
relitigating facts and issues in the second suit that were
fully litigated in the first suit.” In effect, once a party
has had his or her day in court and lost, he or she does
not get a second chance to prevail on the same issues.
Buckner v. Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842 (citations omitted).
¶76 Rose does not even attempt to explain how either issue or
claim preclusion applies in her case. Rose does point us to instances
in the record where requests for sanctions and fees in the Federal
Case were denied for various reasons. But she does not describe the
substance of those decisions, explain the basis for the request for
those sanctions, articulate why resolution of the sanctions motion
would preclude a subsequent OPC action based upon the same
conduct (if it is the same conduct—Rose doesn’t tell us), or cite any
authority for the proposition that res judicata would adhere in this
circumstance. 12
¶77 And Rose has failed to argue whether there is a difference
between a court’s ability to sanction an attorney for bad behavior
under any other number of rules and a state’s responsibility to
oversee the practice of law by those practicing within its jurisdiction.
Although there may be an interesting res judicata question lurking in
Rose’s briefing, she has made absolutely no effort to develop that
question, either factually or legally. Rose has failed to meet her
burden of persuasion that either Article III of the United States
Constitution or the principles of res judicata prevent this court from
sanctioning her for conduct she engaged in before the federal
courts. 13
_____________________________________________________________
12 It is also worth noting that Rose has been sanctioned more than
once. The Tenth Circuit sanctioned Rose “for filing a frivolous and
vexatious appeal” when Rose sued the state of Utah in federal court
for holding disciplinary hearings in this matter. Rose v. Utah, 399 F.
App’x 430, 439 (10th Cir. 2010). It sanctioned her $5,000 and awarded
opposing counsel “double costs, pursuant to Rule 38.” Id.; see FED. R.
APP. P. 38. The federal district court later also enjoined Rose from
filing any future lawsuit before it “on her own behalf.”
13 Again, even if we credited this argument, it would not apply to
the sanctions arising out of Rose’s State Court actions.
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Opinion of the Court
IV. Rose Has Not Shown that She Was
Denied Equal Protection Under the Law
¶78 Rose argues that under the 1984 Amendment to article VIII,
section 4 of the Utah Constitution, lawyers are treated differently
than non-lawyers with respect to their property interests in their
professional licenses. Rose first contends that, under the Fourteenth
amendment, all lawyers are entitled to Fifth Amendment Due
Process rights, which protect “the dignity of the office the lawyer
holds.” She next explains that because “lawyer discipline has no
three-branch control or oversight or limitations. . . . the 1984
Amendment deprives all Utah Lawyers as a class of Equal Protection
afforded all other Utah citizens as to their property rights, here, in
professional licenses.” She finally declares that “[w]ithout U.S.
Constitutionally comporting delegation of authority to the [Utah
Supreme Court], the entire system is void for lack of Due Process
and Equal Protection under the U.S. Constitution.”
¶79 The 1984 Amendment states that “[t]he Supreme Court by
rule shall govern the practice of law, including admission to practice
law and the conduct and discipline of persons admitted to practice
law.” UTAH CONST. art. VIII, § 4. This provision effectively removes
the power to oversee the practice of law and attorney discipline from
the legislative and executive branches. See, e.g., Injured Workers Ass’n
of Utah v. State, 2016 UT 21, ¶ 26, 374 P.3d 14 (“Although the
constitution permits legislative oversight of the supreme court’s
rules of procedure and evidence, there is no such limitation on the
supreme court’s authority to govern the practice of law.”); In re
Discipline of Harding, 2004 UT 100, ¶ 18, 104 P.3d 1220 (“[A]ttorney
discipline proceedings, being the exclusive province of this court, are
conducted under the rules and directions we give.”); Barnard v.
Sutliff, 846 P.2d 1229, 1237 (Utah 1992) (“[O]nly this court has the
rule-making power over the practice of law and the procedures of
the Bar.”). Rose complains that this provision—in some way that she
fails to articulate—violates principles of equal protection.
¶80 At the risk of sounding pedantic, a federal equal protection
argument should at the very least reference the text of the Equal
Protection Clause of the United States Constitution, as well as the
case law interpreting that clause. See supra ¶ 65. Rose references
neither. The Equal Protection Clause reads
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
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ROSE v. OPC
Opinion of the Court
life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
U.S. CONST. amend. XIV, § 1. “[S]tate laws must ‘treat similarly
situated people alike unless a reasonable basis exists for treating
them differently.’” State v. Lafferty, 2001 UT 19, ¶ 70, 20 P.3d 342(citation omitted). “[W]e must determine what classifications are
created by the statute, whether they are treated disparately, and
whether the disparate treatment serves a reasonable government
objective.” State v. Merrill, 2005 UT 34, ¶ 31, 114 P.3d 585. “The
general rule is that legislation is presumed to be valid and will be
sustained if the classification drawn by the statute is rationally
related to a legitimate state interest.” City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 440 (1985). And the United States Supreme
Court
ha[s] treated as presumptively invidious those
classifications that disadvantage a “suspect class,” or
that impinge upon the exercise of a “fundamental
right.” With respect to such classifications, it is
appropriate to enforce the mandate of equal protection
by requiring the State to demonstrate that its
classification has been precisely tailored to serve a
compelling governmental interest.
Plyler v. Doe, 457 U.S. 202, 216–17 (1982) (citations omitted). But
“[w]here no suspect classification or violation of a fundamental right
is involved, a difference in treatment ‘need be only rationally related
to a valid public purpose’ to withstand equal protection scrutiny.”
State v. Holm, 2006 UT 31, ¶ 99, 137 P.3d 726 (citation omitted).
¶81 Rose fails to explain her equal protection argument and
simply asserts that “[t]here is no governmental interest in removing
the three branch safeguards on lawyers’ interests, over say medical
doctors, or dentists, or others dealing with the most personal aspects
of Utah citizens.” It should go without saying that merely
identifying classes is not enough to demonstrate an equal protection
violation. Rose has failed to explain what level of scrutiny should
apply, or why, assuming rational basis review, there is no rational
basis for treating attorney licensing differently than that of other
professions. Rose makes no effort to articulate her argument other
than to assert that attorneys are treated differently than other
professionals and declare an equal protection violation.
30
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Opinion of the Court
¶82 In short, Rose does not develop an equal protection
argument that we can respond to. Rose has, thus, failed to meet her
burden of persuasion that her equal protection rights were violated
by our constitutional provision delegating attorney discipline
authority to our court.
V. Rose Has Not Shown that the Lawyer Discipline
Rules Violated Her Due Process Rights
¶83 Rose further argues that Utah’s “lawyer discipline rules”
violate due process under the Fifth and Fourteenth Amendments of
the United States Constitution.
¶84 We have recognized that attorneys are entitled to due
process when faced with professional discipline. In In re Discipline of
Schwenke, we stated that “suspension and disbarment proceedings
call for adherence to minimum requirements of procedural due
process, including notice of a hearing and notice that the attorney’s
license has been restricted or withdrawn.” 849 P.2d 573, 576 (Utah
1993). In Long v. Ethics and Discipline Committee, we stated that an
attorney is entitled to “receive adequate notice of the charges ‘and an
opportunity to be heard in a meaningful way.’ But the level of due
process required depends on the context of the proceeding. . . .
‘[D]ue process is flexible and calls for the procedural protections that
the given situation demands.’” 2011 UT 32, ¶ 29, 256 P.3d 206(citations omitted). And “[i]n the context of informal attorney
discipline, we have stated that the procedures listed in the [Rules of
Lawyer Discipline and Disability] are sufficient to afford due
process.” Id. 14
_____________________________________________________________
14 In In re Discipline of Harding, we explained that due process is
satisfied at the screening panel proceeding because the Rules of
Lawyer Discipline and Disability provide that the attorney has
“prior notice of the charges, notice of the hearing, a right to be
present at the hearing, and to be represented by counsel at the
hearing”; “the right to appear and present testimony, offer witnesses
on [one’s] own behalf, and present an oral argument with respect to
the complaint”; the ability to receive the screening “panel’s findings
and conclusions”; and the opportunity to seek review from the
Committee Chair. 2004 UT 100, ¶ 20, 104 P.3d 1220. Because the
lawyer discipline rules provide an attorney with all of the above
enumerated procedural mechanisms, we determined that “[t]hese
(continued . . .)
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Opinion of the Court
¶85 Rose, however, recites factors recognized by federal courts,
claiming “[t]hese standards are followed by all United States Courts
that have their own lawyer discipline panels”:
1) an adversarial system including pre-trial
investigation of the charges;
2) linking facts with claims such that there is adequate
advance notice to the lawyer to be able to
understand the charges and respond;
3) a declaration of the type of discipline prosecutors
seek prior to the lawyer being called upon to
answer them;
4) a heightened “clear and convincing standard” of
evidence to support the charges, and to support the
discipline meted out; and
5) rules and impartial triers to enforce the rules.
But Rose fails to measure our system against any of these factors and
explain why she believes Utah’s system lacks these protections, or
why, to the extent Utah’s system does lack one or more of them, the
omission violated her constitutional rights. In other words, it is not
clear what due process Rose believes she was not afforded. Nor does
Rose argue that, even if she believes more process would have been
preferable, failure to provide that additional process rises to the level
of a violation of her constitutional rights.
¶86 Rose does mention three rules: rules 14-501, -517, and -506
of the Utah Rules of Lawyer Discipline and Disability. But rule 14-
501 is the only rule that makes even a brief cameo appearance in one
of Rose’s arguments. The others don’t appear until her conclusion,
wherein Rose summarily states that rules -501 and -517 “combined
with Rule 14-506 allowing trial judges to be subject to the Prosecutor,
deprives all Utah lawyers of impartial triers” of fact. But rule 14-506
removes—not subjects—currently sitting judges from the jurisdiction
of OPC: “Incumbent and sitting judges are subject to the jurisdiction
(continued . . .)
measures are adequate, given the nature of lawyer discipline
proceedings, to ensure due process to a lawyer accused of
misconduct.” Id. ¶ 21.
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Opinion of the Court
of OPC only for conduct that occurred prior to the taking of office.” Id. R.
14-506(b) (emphases added). If indeed Rose meant to express that
sitting judges are subject to OPC’s jurisdiction for things they do as
judges, then she was mistaken.
¶87 Ultimately, Rose’s flaw is—as we mention above—her total
failure to analyze any of the rules she mentions in light of the
standards she insists apply. Instead, she states in conclusory fashion
that “Utah’s system is an inquisition” and “Utah’s system is void for
lack of . . . Due Process and Equal Protection.” Rose needed to
explain what additional process she believed she was entitled to and
why failure to afford her that process violated her due process
rights. 15
VI. Rose Also Fails to Show that
OPC Engaged in Misconduct
¶88 Rose also argues that the judgment against her is void
because OPC prosecutors violated her due process rights in two
ways: first, the composition of the screening panel was
unconstitutional; and second, the prosecutors should not have
pressed her case because she believed she was acting in conformity
with the rules of another jurisdiction under rule 8.5 of the Rules of
Professional Conduct.
¶89 Rose first complains that the composition of her screening
panel violated her due process rights. A due process argument
should at some point reference the Due Process Clause, cite
applicable due process jurisprudence, and perform some sort of due
_____________________________________________________________
15 Rose also contends that this court has failed in its “duty to stop
any lower court processes lacking jurisdiction, and/or involving
prosecutorial misconduct of Rules violations depriving lawyers of
Due Process and equal protection [sic].” To the extent Rose is
arguing that when issues are brought before us and are properly
briefed, and a party meets her burden of establishing that a
constitutional or jurisdictional violation exists, that we have a duty
to correct the error, we agree. But the only example Rose gives is an
unsupported allegation that this court and OPC favor attorneys at
larger firms. She provides no analysis to support this bald assertion.
It goes without saying that one cannot meet one’s burden of proof by
making unsubstantiated allegations.
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ROSE v. OPC
Opinion of the Court
process analysis considering the facts of the present case. See supra
¶ 65. Rose skips these steps.
¶90 Rose does raise an issue with respect to the composition of
screening panels: “So if the Prosecutors are acting outside any
UTSCT, as here, by dividing the Screening Panels in half, by defining
a ‘Screening panel’ the same as a ‘quorum,’ eliminating ‘quorum of a
screening panel.’” This fragment fails to argue anything; it only
suggests the topic of her complaint. The Supreme Court Rules on
Lawyer Discipline and Disability provide that committee members
“shall be divided into four screening panel sections of six members
of the Bar and two public members.” UTAH R. BAR LWYR. DISC. AND
DISAB. Rule 14-503(d). They further provide that “[t]wo members of
the Bar plus one public member shall constitute a quorum of a
screening panel. The concurrence of a majority of those members
present and voting at any proceeding shall be required for a
screening panel determination.” Id. We believe Rose meant to
complain that because her panel was comprised of a quorum of three
and not a full panel of eight, the composition of her panel violated
her due process rights. But we cannot argue Rose’s case for her.
¶91 Perhaps more importantly, Rose does not explain how
having a quorum instead of a full panel would have voided the
judgment against her. In Ciardi v. Office of Professional Conduct, an
attorney made a similar argument: that defects in the screening
panel process deprived the district court of jurisdiction. 2016 UT 36,
¶ 12, 379 P.3d 1287. We refused then to address the merits of his
contention because it was inadequately briefed, contained no citation
to the record demonstrating preservation in the district court, and
did not cite the record below. Id. Like the appellant in Ciardi, Rose
has given us no authority or argument to support the contention that
screening panel defects are jurisdictional. And as we did in Ciardi,
we decline to do that work for Rose.
¶92 Rose also contends that the OPC prosecutor violated her
due process rights “knowingly [and] willfully” when he “made the
decision to prosecute the case and retry or displace federal and US-
[Navajo Nation] Contracted triers.” Rose attempts to bolster this
argument by quoting rule 8.5(b)(2) of our Rules of Professional
Conduct:
A lawyer shall not be subject to discipline if the
lawyer’s conduct conforms to the rules of a jurisdiction
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Opinion of the Court
in which the lawyer reasonably believes the
predominant effect of the lawyer’s conduct will occur.
Rose, however, does not explain how a decision to prosecute her
conduct violated this rule or how a violation of this rule offended
due process. She fails to explain which rules she believed she was
acting in conformance with or to point to a place in the record where
she engaged in actions that arguably violated our rules but
conformed to those of the jurisdiction where she practiced. A proper
argument is altogether unmade.
¶93 Rose has, therefore, not demonstrated how “Prosecutors
became policy makers,” how this court “became complicit in this
matter,” or how the above considerations violated her due process
rights under the United States Constitution.
VII. Rose Has Failed to Show that Our Lawyer Discipline
Process Is Void for Various Other Reasons
¶94 Rose finally argues that OPC disobeyed the district court’s
rule 7 order and failed to disclose the records showing “how or why
the initial screening panel did what they did.”
¶95 Rule 7 of Utah’s Rules of Civil Procedure—we assume, the
“Rule 7” Rose intended to reference—is comprised of parts (a)–(q).
Its title is “Rule 7. Pleadings allowed; Motions, Memoranda,
Hearings, Orders.” It governs motion practice in civil cases in the
State of Utah. Rose fails to guide us to a place in the record where the
district court issued an order under “Rule 7” directing OPC to act
one way or another. Claiming that opposing counsel violated a
“Rule 7” order without explaining more does little to tell this court
what the alleged problem is.
¶96 The closest thing we can find in the record concerning Rule
7 is the district court’s memorandum decision and order granting
OPC’s motion to strike Rose’s answer and entering default judgment
against her, concurrently denying Rose’s motion to strike OPC’s
motion to strike and dismiss the case as a sanction against OPC for
violations of “Rule 7” and other rules. 16 That order does not support
_____________________________________________________________
16 This highlights why counsel should adhere to our rule
requiring references to the record. Had Rose complied with Utah
Rule of Appellate Procedure 24, we could have at least known which
(continued . . .)
35
ROSE v. OPC
Opinion of the Court
Rose’s argument that OPC violated a court order concerning a “Rule
7.” Years later—as OPC clarifies—the district court, under Judge
Hansen, explained to Rose that “the issuance of an order under Rule
7 of the Utah Rules of Civil Procedure merely formalizes a court’s
ruling and allows the parties to seek appellate review of that ruling.”
The court further invited Rose to submit “her own proposed order so
that she [can] pursue appellate review.” We will not scour the record
more than we have—and we have—in order to understand the
nature of Rose’s complaint. We merely note that Rose has not
pointed to any district court order directed at OPC that she then
argues OPC did not comply with.
¶97 Likewise, Rose fails to explain which documents she
believes OPC failed to supply, how this failure harmed her, or what
evidence she anticipates the documents would provide. OPC replies
that it “produced all documents and materials which are required by
the [Rules of Lawyer Discipline and Disability].” OPC further claims
that Rose was “provided all materials that were before the screening
panel in the two underlying cases. If she believed something [more]
was relevant to the district court case she could have
produced/required that in discovery, but she elected not to
participate in discovery.” Rose does not contest this.
¶98 Without more than these unsupported assertions and
conclusory claims—not to mention the various aspersions cast on
this court and Utah’s legal system—Rose has not met her burden of
persuasion showing that—as she claims—“dismissal of the case
entirely is all that is left.”
VIII. Rose’s December 2010 Petition for Extraordinary
Relief Was Both Frivolous and Interposed for Delay
¶99 Between 2008–2010, Rose filed a number of Petitions for
Extraordinary Relief in this court, attempting to stop the district
court proceedings. In 2011, Justice Jill N. Parrish issued the following
Order:
This matter is before the Court on Petition for
Extraordinary Relief. Petitioner [Rose] has filed three
(continued . . .)
order—of all the orders in the 28,000+ page record—she claims lies
at the heart of this argument.
36
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Opinion of the Court
prior petitions pursuant to rule 19 of the Rules of
Appellate Procedure and one prior petition pursuant to
rule 5 of the Rules of Appellate Procedure. In response
to those requests for discretionary appellate review,
this Court has declined to interrupt the pending
disciplinary proceedings. This Court again denies the
request for relief prior to entry of the final judgment
below. Petitioner is entitled to file a direct appeal after
the final judgment. Prior to the timely filing of a direct
appeal of right, the Court will not entertain another
request for discretionary appellate review. With respect
to this petition, the sole issue remaining to be decided
is the [OPC’s] request for sanctions. Resolution of that
issue will be deferred. If a timely direct appeal is filed
after entry of judgment in the disciplinary proceedings,
the issue of sanctions will be consolidated with the
appeal for decision after plenary review.
Justice Parrish’s order was consolidated into the present appeal on
November 22, 2016.
¶100 OPC now renews its request for sanctions against Rose for
filing frivolous petitions for extraordinary relief under rule 33 of the
Utah Rules of Appellate Procedure. Rule 33(b) states that a brief is
frivolous if it “is not grounded in fact, not warranted by existing law,
or not based on a good faith argument to extend, modify, or reverse
existing law.” UTAH R. APP. P. 33(b). And a brief “interposed for the
purpose of delay” is one filed for “any improper purpose,” including
to “gain time that will benefit only the party filing the appeal.” Id.¶101 OPC argues that Rose’s December 2010 petition was
“frivolous, as the Court had already denied her previous attempts to
seek discretionary appellate review, and she should not have filed
additional attempts to seek review until the entry of a final judgment
from which she could seek an appeal.” We agree that Rose’s
December 2010 filing was frivolous, and we also conclude it was filed
for the “improper purpose” of gaining time that would “benefit only
the party filing the appeal.” UTAH R. APP. P. 33(b); see Brigham City v.
Mantua Town, 754 P.2d 1230, 1237 (Utah Ct. App. 1988) (“We find the
appeal to be both frivolous and interposed for delay and hold that
Brigham City is entitled to recover an award of reasonable attorney
fees and double costs on appeal.”). We therefore remand to the
district court for the limited purpose of determining the appropriate
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ROSE v. OPC
Opinion of the Court
award of attorney fees to be granted to OPC in connection with the
December 2010 petition.
¶102 Rose further complains that Justice Thomas R. Lee of the
Utah Supreme Court “participated with the prosecutors in harming
[her]” when he denied a stay of her disbarment pending review of
her appeal. That is the sum total of her argument. We will note, in
case others find themselves in the same position, that if Rose believed
her stay was improperly denied, she would have been better served
to articulate a reason why rather than to baselessly and personally
attack a justice for signing an order on behalf of the court.
¶103 Given the volume of motions filed and the various requests
for action embedded in other pleadings, we take this opportunity to
deny all other motions and requests related to this case. 17
CONCLUSION
¶104 Rose failed to competently contest the order of the district
court disbarring her as a sanction for violating various rules of
professional conduct. While we recognize that disbarment is the
most serious sanction a court may impose on an attorney for
professional conduct violations, we acknowledge that Rose did not
challenge the substance of the district court’s sanction, opting
instead to level constitutional challenges to the entire attorney
discipline system. Rose’s arguments are inadequately briefed, and to
_____________________________________________________________
17 For example, we deny “Appellant’s #1 Rule 10(A) Verified
Motion for Summary Disposition For Lack of This Court’s Subject
Matter Jurisdiction – No Tolling Statutes of Limitation Rule 8.5
Violations and Rule 11 and 33 Motion for Sanctions.” Rose filed this
motion after we held oral argument in this matter. Her motion
largely rehashes the jurisdictional arguments discussed herein and
augments them with an incomprehensible contention that the statute
of limitations has run on the claims against her. Rose posits that the
limitations period ended on May 1, 2008, for claims arising out of the
Federal Case and on April 18, 2009, for the State Case. OPC filed the
Complaint in December 2007. This denial also includes “Appellants
#2 Rule 10(A) Verified Motion for Summary Disposition for Lack of
this Court’s Subject Matter Jurisdiction – And Due Process – Article
VIII Sec 4 1985 Revision Violates Utahs [sic] Enabling Act
Prohibitions” filed four months after the case was argued.
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Opinion of the Court
the extent we can decipher them, they are without merit. We affirm
the district court’s order.
39