Utah Case Law
MENZIES v. GALETKA, 2006 UT 81 Ralph Leroy Menzies,
Plaintiff and Appellant, v. Hank Galetka, Utah State Prison
Warden, Defendant and Appellee. No. 20040289. Supreme
Court of Utah. December 15, 2006.
Appeal from the Third District, West Valley The Honorable
Pat B. Brian No. 030106629.
Elizabeth Hunt, Salt Lake City, for plaintiff, Mark L.
Shurtleff, Att’y Gen., Thomas Brunker.
Erin Riley, Asst. Att’ys Gen., Salt Lake City for
defendant.
DURHAM, Chief Justice:
1 In this case, Ralph Leroy Menzies, a death row
inmate, appeals from the district court’s dismissal of his
petition for post-conviction relief. Menzies filed a claim
for post-conviction relief in 1995, after having previously
exhausted his grounds for direct appeal. On March 3, 1998,
attorney Edward K.Brass was appointed by the district court
to represent Menzies. From that date until his withdrawal
on September 9, 2003, Brass willfully disregarded nearly
every aspect of Menzies’ case. As a result, the court
imposed discovery sanctions, granted summary judgment in
favor of the State, and ultimately dismissed Menzies’
petition for post-conviction relief.
2 Following the dismissal of Menzies’ case, Brass
withdrew and new counsel was appointed. Menzies then moved
to set aside the district court’s dismissal of his petition
for post-conviction relief pursuant to rule 60(b) of the
Utah Rules of Civil Procedure. Menzies’ 60(b) motion was
primarily based on claims that Brass’ actions were grossly
negligent and amounted to ineffective assistance of
counsel. The district court denied Menzies’ motion (the
60(b) ruling). Menzies now requests that we reverse the
district court’s 60(b) ruling. Menzies also challenges a
discovery order that the district court entered pursuant to
an evidentiary hearing held on Menzies’ 60(b) motion,
arguing that the district court improperly compelled
Menzies to disclose privileged work product. We hold that
the district court erred in denying Menzies relief under
rule 60(b)(6) of the Utah Rules of Civil Procedure and that
the discovery order entered by the district court did not
comply with the standard for the discovery of attorney work
product set forth in Salt Lake Legal Defender Ass’n v. Uno,
932 P.2d 589 (Utah 1997).
BACKGROUND
3 Before reciting the facts in this case, it is
necessary to discuss our review of the district court’s
factual findings. We have reviewed the factual findings
contained in the district court’s 60(b) ruling for clear
error, as is our practice when reviewing issues of fact.
Chen v. Stewart, 2005 UT 68, ¶ 1 n. 1,123 P.3d 416.
However, our review of the record in this case indicates
that the district court clearly erred in numerous factual
findings that were crucial to its decision. We therefore
decline to recite the facts in a manner consistent with the
district court’s ruling and instead recite them in
accordance with our review of the record. Id.
4 The facts pertinent to this appeal arise from
Menzies’ lengthy post-conviction litigation, particularly
the representation he received from attorney Edward K.
Brass between February 1998 and September 2003. We begin
our synopsis with some background information on the
initial criminal proceedings. On March 8, 1988, Menzies was
found guilty of first degree murder and aggravated
kidnapping. Menzies waived his right to a jury for the
penalty phase of his trial and was subsequently sentenced
to death by the district court. Following his sentencing,
Menzies filed a motion for a new trial, which was denied.
Menzies appealed to this court, which affirmed the district
court’s denial of the motion and directed Menzies to
proceed with his direct appeal on the merits. State v.
Menzies, 845 P.2d 220,242 (Utah 1992). Menzies did so,
arguing that numerous prejudicial errors had occurred at
trial. We ultimately denied all of Menzies’ claims,
affirming the jury’s guilty verdict as well as the district
court’s imposition of the death penalty. State v. Menzies,
889 P.2d 393, 406-07 (Utah 1994), cert. denied, 513 U.S.
1115 (1995).
I. THE INITIAL POST-CONVICTION PROCEEDINGS
5 On April 20, 1995, Menzies filed a petition for
post conviction relief; he amended his petition on May 2,
1995.[fn1] In his amended petition, Menzies asserted
seventy-three separate claims for relief, including claims
that his trial counsel had provided ineffective assistance.
On November 13, 1995, the State moved to dismiss the first
seventy-one claims, arguing that the Utah Supreme Court had
previously rejected them. However, the State’s motion did
not address Menzies’ ineffective assistance claims.
6 On December 13, 1995, the State moved the
district court for permission to conduct discovery by
serving interrogatories on Menzies and deposing him, his
original trial counsel, and other witnesses. Menzies
opposed the motion, asserting that any discovery should be
tailored to avoid breaching attorney-client and
constitutional privileges. On February 7, 1996, Menzies
moved the district court to direct the State to provide
attorney fees as well as funds for both expert witnesses
and an investigation of his claims of innocence, including
a potential alibi that was allegedly not investigated by
trial counsel in Menzies’ underlying criminal case. Menzies
indicated that the motion would be supported by the
affidavit of a private investigator to be filed with the
court.
7 On April 3, 1996, the district court entered an
order deferring ruling on the State’s motion to dismiss
until after an evidentiary hearing could be held on the
ineffective assistance of counsel claims. The court also
set a timetable for the State and Menzies to file
responsive memoranda to their respective motions. The court
held another hearing regarding the State’s motion for
discovery and Menzies’ motion for attorney fees and
investigatory funds on May 6, 1996. On June 12, 1996, the
district court ordered that the State be allowed to conduct
limited discovery and that Menzies be awarded $2,000 to pay
for an alibi investigation. In this order, the district
court found that Menzies had partially waived his
attorney-client privilege as to the records of his defense
counsel, the Salt Lake Legal Defender Association (LDA), by
claiming ineffective assistance of trial counsel in his
post-conviction petition. The court also found that in
order to prevent Menzies’ right of habeas corpus from being
unlawfully suspended, it was necessary to provide Menzies
with funds to investigate his claims, specifically his
claims regarding an uninvestigated alibi defense. The court
deferred ruling on Menzies’ request for attorney fees until
an evidentiary hearing could be held. The State filed an
interlocutory appeal from this order.
8 On May 17, 1996, the State served its first set
of interrogatories on Menzies. On June 7, 1996, the State
also served the LDA attorneys who had represented Menzies
during his criminal trial with subpoenas duces tecum to
have their depositions taken and requests to produce all
documents relating to their representation of Menzies. On
June 19, 1996, LDA intervened and filed a motion for
redetermination and clarification of the district court’s
order granting discovery.LDA argued that Menzies had not
waived the attorney-client privilege and that even if he
had, the waiver was limited by the subject matter of
Menzies’ claims and the right against self incrimination.
LDA also moved the district court for a protective order
preventing the discovery of privileged attorney-client
information from current or former LDA attorneys. Finally,
LDA requested that the district court stay the depositions
and discovery procedures pending the resolution of its
motions.
9 On July 8, 1996, the State filed a motion
requesting that the district court compel Menzies to
respond to the interrogatories that the State had served
him on May 17. On July9, 1996, LDA filed a motion
requesting that the court either quash the subpoenas duces
tecum the State had served on its attorneys or issue a
protective order limiting the production of privileged LDA
documents relating to Menzies’ criminal trial. On July 10,
1996, Menzies also moved for a protective order, asking
that the LDA attorneys not be deposed and that he be
relieved from having to respond to the State’s
interrogatories. Menzies argued that there was inadequate
time to review the documents requested by the State to
determine privilege issues. Menzies also noted that the
State had not yet paid the $2,000 in investigative funds
ordered by the district court and that he could not fully
answer the State’s interrogatories until the alibi
investigation was completed. In addition, Menzies moved to
stay the proceedings pending the State’s appeal from the
district court’s interlocutory order regarding
investigative funds to the Utah Supreme Court.
10 The district court conducted a hearing
regarding LDA’s July 8 motion on July 16, 1996. At the
hearing, the court stayed all motions pending the State’s
interlocutory appeal and gave the State until July 19,
1996, to respond to Menzies’ motions. The court also stayed
the depositions of the LDA attorneys, which had been
scheduled for July 18, 1996, and stated that they were to
be rescheduled pending a hearing on the various motions on
August 6, 1996. During the interim, the court ordered LDA
to produce the non-privileged information that the State
had requested and to prepare a privilege log as to the rest.
Finally, the court ordered the State to pay Menzies the
$2,000 in investigative funds as required by its prior
order. The State did indeed provide Menzies with a check
for $2,000 on July 19,1996, reserving the right to challenge
the district court’s order requiring payment and to seek
repayment from Menzies if the order was vacated.
11 Prior to the July 16 hearing, the State had
prepared a proposed order regarding the discovery of LDA
documents; the State amended its proposed order in light of
the July 16 hearing and provided it to Menzies and LDA on
July 22, 1996. On July 29,1996, Menzies moved to extend the
time for responding to the State’s proposed order and to
strike the August 6 hearing because he had not received a
copy of the transcript from the July 16hearing and thus
could not properly object to the State’s proposed order.
The district court granted Menzies’ motion on both counts.
On August 6, 1996, LDA filed a memorandum, joined by
Menzies, objecting to the State’s proposed order.
12 On August 23, 1996, the State moved the
district court for leave to take Menzies’ deposition. On
September 3, 1996, Menzies filed motions for a protective
order and to stay all discovery. Menzies argued that the
State had impermissibly made its payment of the $2,000 in
investigative funds conditional on its right to seek
repayment if the district court’s order was overturned.
Menzies asserted that this condition made it impossible for
him to spend the funds because he was indigent and did not
have the means to repay the funds in the event the State
later sought to recover them. According to Menzies, he
could not proceed with discovery — through answering
interrogatories and being deposed — unless the
investigative funds were made available and an investigation
was completed.
13 On September 9, 1996, the State filed memoranda
responding to Menzies’ motions and LDA’s objection to the
State’s proposed discovery order. The district court held a
hearing regarding both issues. It ruled that the proposed
order was sufficient as written and that any objections to
the discoverable materials in LDA’s possession could be
handled through in-camera reviews by the court.
Accordingly, the court executed the State’s proposed
discovery order. With regard to Menzies’ motions, the court
denied both of them but ordered that the$2,000 in
investigative funds be paid to Menzies with no restrictions.
Finally, the court granted the State’s motion to depose
Menzies and to compel him to answer its interrogatories
before October 9, 1996. On October 15, 1996, LDA filed its
privilege log with the district court. On October 22, 1996,
the State moved for sanctions, asking that the district
court strike Menzies’ ineffective assistance of counsel
claims because Menzies had failed to answer the State’s
interrogatories by October 9, as directed by the court.
14 On November 1, 1996, Menzies petitioned this
court to allow him to appeal from the district court’s June
12 order regarding the provision of investigative funds and
also filed a motion to stay the post-conviction proceedings
in the district court pending our decision. We denied the
motion to stay without prejudice on November 18, 1996. After
the State filed a motion to dismiss and a memorandum in
opposition, Menzies withdrew his petition. Menzies then
petitioned this court for a writ of extraordinary relief,
again requesting that this court review the district
court’s June 12 order to determine the adequacy of the
investigative funds. According to Menzies, the amount of
investigative funds awarded by the district court was not
sufficient to conduct an adequate investigation; Menzies’
private investigator suggested in his affidavit that a
reasonable estimate would be at least $8,250. He stated
that he had identified twenty-six areas of investigation,
“each extensive and critical to a determination of guilt,”
that had not been adequately investigated during the guilt
phase of Menzies’ trial.
15 On January 2, 1997, we consolidated this
petition with several other cases involving similar issues
under the caption Menzies v. Galetka. On January 23, 1997,
this court denied Menzies’ petition for extraordinary
relief, concluding that the preliminary conditions
necessary for the grant of a writ under rule 65B of the Utah
Rules of Civil Procedure did not exist. However, we also
stated that if Menzies challenged the adequacy of the
investigative funds in the district court and the court
denied him the relief requested, he could then petition
this court for interlocutory relief, in which case we would
address the adequacy issue in connection with the
disposition of the other consolidated cases.
16 On January 31, 1997, this court issued its
decision in the related case of Salt Lake Legal Defender
Ass’n v. Uno, 932 P.2d 589 (Utah 1997), wherein LDA had
petitioned this court for extraordinary relief from the
district court’s September 16 order. Id. at 589. In that
case, we clarified the procedures courts should follow when
applying the work product doctrine to privileged documents
sought in discovery. Id. at 590-91. We granted LDA’s
petition, vacated the district court’s September 16 order
regarding the production of LDA documents, and ordered the
district court to supervise discovery in accordance with
the standards set forth in our opinion. Id. at 591.
17 On January 10, 1997, Menzies filed his answers
to the State’s first set of interrogatories. The State
subsequently withdrew its motion for sanctions. On February
3, 1997, Menzies filed with the district court a motion to
increase the funds available for investigation fees to at
least $8,250, based on the private investigator’s affidavit.
The State opposed the motion. The district court heard the
issue on February 24, 1997, and it denied Menzies’ request
for additional funds, ordered Menzies to use an in-state
investigator, and again reserved ruling on Menzies’ request
for attorney fees until after an evidentiary hearing.
II. POST-CONVICTION LEGISLATION AND MR. BRASS’ APPOINTMENT
18 Meanwhile, in proceedings before this court
involving the district court’s order awarding Menzies’
investigative fees, the State had filed a motion suggesting
that the issue may be moot given the recent passage of
House Bill 60, enacting Part 2of the Post-Conviction
Remedies Act, Capital Sentence Cases, which governs the
appointment and payment of counsel in post-conviction death
penalty proceedings. Utah Code Ann. §§
78-35a-201 to-202 (2002). We granted the State’s motion on
April 28,1997, noting that the parties had agreed to
voluntarily stay proceedings in the district court until
after July 1, 1997, the date on which the new legislation
and associated rules went into effect.[fn2] After the new
legislation became effective, both parties sought to have
the district court appoint new counsel qualified under rule
8 of the Utah Rules of Criminal Procedure, as required by
the newly enacted Utah Code section 78-35a 202(2)(a). On
October 1, 1997, the State notified Menzies’ counsel that
the Utah Division of Finance had implemented rules that
might allow Menzies to receive payment from the state for
attorney fees and litigation expenses. In a letter to the
State dated October 13, 1997, Menzies’ counsel stated that
she did not feel comfortable applying for compensation
under the provisions adopted by the Utah Division of
Finance because Menzies’ pro bono team had not been
appointed by the court and did not meet the requirements of
rule 8, as required by section 78-35a-202(2)(a). Menzies’
counsel further represented her belief that the case could
not proceed until an attorney meeting the rule 8
requirements, who was willing to represent Menzies, could
be located.
19 On October 27, 1997, the State requested that
the district court appoint new counsel qualified under rule
8 to represent Menzies. Menzies’ counsel also filed a
motion arguing that his pro bono team collectively did not
met the rule 8requirements and asking the court to appoint
new counsel. The district court held a hearing on the
State’s motion on November3, 1997, and determined that
“[n]ew counsel must be appointed.” The court ordered
Menzies’ counsel to prepare and submit a list of attorneys
qualified under the new rule 8 who would be willing to
accept the appointment, along with affidavits regarding the
attorneys’ backgrounds and qualifications. Pursuant to this
order, Menzies’ counsel submitted a report to the district
court on November 12, 1997, identifying thirteen attorneys
whom she believed were qualified to represent Menzies. Of
these thirteen, five were unable to take the case because
of undisclosed conflicts. Menzies’ counsel sent a letter to
the remaining eight attorneys inviting them to represent
Menzies, but had received no responses as of November 12.
No affidavits were included with the November 12 report.
20 Kenneth R. Brown, one of the attorneys
identified in the November 12 report and contacted by
Menzies’ counsel, filed an affidavit with the district
court on December 3, 1997. In his affidavit, Brown stated
that he was unwilling to represent Menzies for a host of
reasons. At the time, the Utah State Department of Finance
Regulations placed a $25,000 cap on compensation for
attorneys representing plaintiffs in post-conviction death
penalty cases which included investigation and expert
witness fees. According to Brown, Menzies had
uninvestigated claims of actual innocence that Brown
estimated would cost $25,000 to properly investigate. In
addition, Brown stated that no mitigation investigation had
been conducted in the underlying trial and one would be
necessary in order to properly litigate Menzies’
post-conviction claims. Such an investigation”would cost
well in excess of $25,000.” Under these circumstances,
Brown believed that the funds available to any attorney
undertaking Menzies’ representation would be “grossly
inadequate” because the necessary investigation alone would
cost nearly three times the total amount authorized by the
state. Therefore, Brown felt that any attorney representing
Menzies would be placed “in an immediate ethical conflict”
because he or she “would be forced to choose between
receiving compensation . . . and conducting no reasonable
investigation whatsoever, or alternatively, throwing all of
[the funds] into a still inadequate investigation, and
going without any compensation.”[fn3] Accordingly, Brown
declined to represent Menzies.
21 On December 16, 1997, the State filed a second
motion requesting that the district court appoint rule 8
qualified counsel for Menzies. In its motion, the State
indicated that the only attorney contacted by Menzies’
counsel who had responded was Brown and he had declined to
represent Menzies. The State argued that “[i]n order to
proceed with this action a Rule 8qualified attorney must be
appointed by the Court to represent the petitioner’s
interests.” The State also stated that”[f]urther delay in
making the appointment of counsel is not in the best
interest of the petitioner who has alleged, among other
claims, his `actual innocence.'” On December 23, 1997,
Menzies’ counsel filed a supplemental report to update the
district court regarding her search for rule 8 qualified
counsel. In the report, Menzies’ counsel indicated that she
had received replies to her letter soliciting a rule 8
qualified attorney for Menzies from four of the eight
recipients. Each of these attorneys had declined to
represent Menzies, most for the same reasons as Brown.
Menzies’ counsel further stated that the attorneys she had
contacted constituted all of the potentially qualifying
attorneys of whom she was aware.
22 On January 29, 1998, the district court held a
second hearing regarding the appointment of rule 8
qualified counsel. The court ordered Menzies’ counsel to
continue trying to contact attorneys to represent Menzies
and gave her until February 5 to do so. On February 4,
1998, pursuant to a request from the district court judge’s
clerk, Menzies’ counsel submitted a letter to the district
court indicating the eight attorneys who had been contacted
and their responses. The letter indicated that four of the
attorneys had responded in the negative and the other four
had still not responded.
23 On February 3, 1998, attorney Edward K. Brass
sent a letter to Menzies’ counsel stating that he would be
interested in representing Menzies if they were still
seeking counsel. On February 13, 1998, at yet another
hearing regarding the appointment of rule 8 qualified
counsel, Menzies’ counsel told the court about Brass’
letter. The court contacted Brass, he appeared and agreed
to represent Menzies, and the district court approved the
appointment. It does not appear that the district court
ever actually conducted an inquiry into whether Brass was
qualified to represent Menzies under rule 8. On March 3,
1998, the court entered an order appointing Brass to
represent Menzies in all proceedings before the court.
Menzies’ pro bono team subsequently withdrew their
representation but remained available to consult with
Brass. In the 60(b) ruling, the district court stated that
“Mr. Brass believed he was appointed for the sole purpose
of representing Petitioner at the evidentiary hearing.”
While Brass’ affidavit does contain a statement to this
effect, nothing else in the record indicates that his
representation was limited in such a manner. The letter
Brass sent to Menzies’ counsel simply stated that Brass was
willing to take the case. At the hearing at which Brass was
appointed, the district court did not set any limit on his
representation. Also, the district court’s order appointing
Brass, which he signed, actually states that “Edward K.
Brass is appointed to represent Mr. Menzies in all
proceedings before this court” (emphasis added). Most
telling, at an evidentiary hearing held on January 16,
2004, Brass himself stated that his representation of
Menzies was not limited in any way. Nor would a limitation
on Brass’ representation have been appropriate given that
the district court and counsel for both parties had just
conducted a four-month search for rule 8 qualified counsel
and Brass was the only attorney willing to take the case.
Any limitation would also have run counter to the
post-conviction regulatory framework. Under the Utah
Administrative Code,
[a]ll appointed counsel, by accepting the court
appointment to represent an indigent client sentenced to
death and by presenting a Request for Payment to the
Division of Finance, agree to provide all reasonable and
necessary post-conviction legal services for the client,
including timely filing an action under the provisions of
Title 78, Chapter 35a, Post-Conviction Remedies Act and
representing the client in all legal proceedings
conducted thereafter including, if requested by the
client, an appeal to the Utah Supreme Court.
Utah Admin. Code r. 25-14-3 (emphasis added). The record
indicates that Brass requested and received from the
Division of Finance an initial appointment fee of $5,000
pursuant to rule 25 14-4(1) of the Utah Administrative
Code.
III. BRASS’ REPRESENTATION
24 Brass served as Menzies’ counsel from February
13,1998, when the district court appointed him, until he
withdrew on September 9, 2003. To say that Brass did little
to represent Menzies during this five-and-a-half-year
period would be an understatement. In fact, Brass’
representation in this case was deplorable. Our review of
the record indicates that Brass not only failed to provide
Menzies with any meaningful representation, but in fact
willfully disregarded nearly every aspect of this case. In
effect, Brass defaulted Menzies’ entire post-conviction
proceeding, resulting in the dismissal of Menzies’ case.
25 To begin with, Brass communicated with Menzies
only sparingly throughout his representation. He discussed
the issues in the case at length with Menzies only once
— for one to two hours during an initial meeting
— and thereafter rarely spoke with his client,
appearing to deliberately avoid any communication. Menzies
consistently attempted to contact Brass by telephone to
discuss various aspects of the case. Brass’ office rarely
answered Menzies’ calls, frequently refused to accept
collect calls from the prison,[fn4] and even hung up when
they realized it was Menzies calling. This practice was
conducted pursuant to Brass’ instructions. Even when the
staff accepted Menzies’ phone calls and took messages,
Brass seldom returned them. Telephone records indicate that
Menzies attempted to call Brass’ office literally hundreds
of times but actually spoke with Brass or a member of his
staff only on a handful of occasions.
26 Menzies also tried to communicate with Brass
through letters and cards. In these letters, Menzies
repeatedly pleaded with Brass to contact and update him on
the status of his case. Brass did not keep Menzies informed
about the procedural posture or progress of the case, nor
did he send Menzies copies of any of the documents filed by
the State, even though Menzies requested that he do so
multiple times. In his communications with Brass, Menzies
consistently maintained his innocence and frequently asked
Brass and his staff to make sure that the case was
progressing. In particular, Menzies wanted Brass to conduct
alibi and mitigation investigations, repeatedly expressing
concern that delaying the investigation of these matters
would be harmful to his case. In its 60(b) ruling, the
district court made much of the fact that Menzies told
Brass in several letters that he had full confidence in him
and to take whatever time was needed. According to the
district court, Menzies “was aware of circumstances that
called into question the quality of Mr. Brass’
representation and the progress of his case,” and “despite
his concerns with Mr. Brass’ representation and the lack of
progress in his case, [Menzies] intentionally acquiesced in
the delay of his case by keeping Mr. Brass as his
attorney.” However, a careful reading of the record shows
that Brass — when Menzies was able to communicate
with him — and several other attorneys and staff
members who were affiliated with Brass, repeatedly told
Menzies to have faith in Brass’ representation and that
Brass would do a good job. Moreover, Brass himself has
indicated that Menzies asked him to resolve the case
without delay. Thus, a more accurate reading of the record
is that Menzies kept Brass as his attorney because he was
not fully aware of the status of his case, and he was
continually reassured that Brass was taking care of things.
27 Brass never conducted or hired anyone to
conduct an investigation, notwithstanding Menzies’ requests
and the fact that the record indicates that extensive
investigation on these subjects was needed in order to
properly litigate Menzies’ claims. After he was appointed,
Brass received a letter from Menzies’ prior counsel
informing him that she had the $2,000 in investigative
funds previously awarded by the court in her possession.
However, Brass never sought or obtained these funds from
her;[fn5] the record also indicates that Brass did not
consult Menzies’ pro bono team about the case. Nor did
Brass ever challenge the adequacy of the funds or request
any additional funds from the Division of Finance. In fact,
the only funding Brass ever requested or received in
connection with his representation of Menzies was his
initial $5,000 appointment fee.
28 Brass’ representation of Menzies before the
district court was equally deficient. Shortly after Brass
was appointed, the district court held a scheduling
conference to establish cutoff dates for Menzies to file a
second amended petition for post-conviction relief, for
discovery, and for the parties to file dispositive motions.
A scheduling order was then entered giving Menzies until
April 16, 1998, to file his second amended petition.
However, Brass failed to file a petition by that date. On
July 15, 1998, the district court modified the prior
scheduling order and gave Menzies until August 17, 1998, to
file his petition. On July 22, 1998, the court held another
scheduling conference wherein it modified several other
cutoff dates and also ordered LDA to produce all relevant
documents by November 9, 1998. Brass again failed to file
Menzies’ second amended petition by the modified deadline.
On August 31, 1998, Brass finally filed a two-page second
amended petition, which did little more than re-state the
arguments that had been made in the first amended petition
filed by Menzies’ pro bono counsel on May2, 1995.
29 On September 25, 1998, the State filed both its
answer to and a motion to dismiss Menzies’ second amended
petition. As in its original motion to dismiss, the State
argued that all of Menzies’ claims except those relating to
ineffective assistance of trial counsel should be dismissed
because they had either been raised on direct appeal or
could have been raised on direct appeal. Brass did not file
a brief opposing the State’s motion. On October 8, 1998,
the State moved the court to extend the discovery deadline
from October 15 to December 15, citing a need to review an
index of all LDA documents relating to the underlying
criminal trial in order to complete discovery. The court
granted this motion on October 29.
30 On November 24, 1998, the State provided notice
that it intended to depose Menzies on December 10. However,
on December9, Brass cancelled the deposition. On December
22, the district court held a hearing on the State’s motion
to dismiss. The court granted the State’s unopposed motion
and ordered that the first seventy-one claims for
post-conviction relief asserted in Menzies’ amended
petition be dismissed. On that same day, the State filed a
motion to compel Menzies’ deposition; the court ordered
Menzies to respond by January 4, 1999. Brass never filed a
response.
31 On February 2, 1999, Menzies, the State, and
LDA moved the court to vacate, amend, and clarify the
discovery order of September 16, 1996, to conform to this
court’s decision in Salt Lake Legal Defender Ass’n v. Uno,
932 P.2d 589 (Utah 1997). The court did so on February 4,
issuing an order addressing all of the previous
discovery-based motions filed by the parties. The court
ordered LDA to produce all documents not protected by the
work product doctrine and to prepare an index of all
remaining documents. LDA filed its privilege log with the
court on April9, 1999.
32 On June 11, the district court entered an order
granting the State’s motion to compel Menzies’ deposition,
noting that the motion was unopposed. On July 19, the
district court extended the discovery cutoff date, ordering
that the parties complete discovery by December 31, 1999.
On September 2, 1999, the State filed a motion for
permission to schedule Menzies’ deposition. The court
granted the motion, and following several cancellations due
to conflicts in the parties’ schedules, Menzies’ deposition
was scheduled for November 5, 1999. On November 4, Brass
again called counsel for the State and told them that it
would be inappropriate for Menzies to be deposed before an
alibi investigation could be conducted. Brass apparently
made this assertion notwithstanding the fact that he had
made no effort to conduct such an investigation. Menzies’
deposition, however, proceeded as scheduled. Brass did not
attend but instead sent Julie George, an attorney who was
neither rule 8 qualified nor familiar with the case in any
way. When George arrived at the prison, Menzies did not
know who she was and was not even aware that the deposition
was scheduled. Nonetheless, Menzies participated in the
deposition, answering certain questions and refusing to
answer others on George’s advice. The deposition was
finally terminated when Menzies, acting on George’s advice,
asserted his right under the Fifth Amendment to refuse to
answer questions about his communications with the
attorneys who represented him in his criminal trial.
33 On December 3, 1999, the State filed a second
motion to compel Menzies’ deposition. In its motion, the
State requested that the court instruct Menzies on the
extent of the Fifth Amendment privilege, order Menzies to
answer all questions not protected by the privilege, and
impose sanctions precluding Menzies from introducing
evidence in the event Menzies refused to answer. On
December 23, 1999, the State moved to strike the discovery
deadline due to the delays. Brass failed to file a response
to either of the State’s motions, and the court
subsequently granted both of them. The State rescheduled
Menzies’ deposition for June 1, 2000, and completed
deposing Menzies on that date. Brass represented Menzies at
the deposition, again asserting a blanket objection to the
deposition.
34 On October 9, 2000, the State filed a motion
seeking permission to serve Menzies with additional
interrogatories. Once again, Brass did not file any
response to the State’s motion. On December 4, 2000, the
court granted the State’s motion, and an order to this
effect was entered on December 20,2000. On December 18,
2000, the State served Menzies with a document production
request and a second set of interrogatories. When Menzies
did not timely respond, the State notified Brass on January
24 via hand-delivered letter that it would move for an
order compelling discovery if it did not receive the
outstanding discovery by February 9, 2001. Brass did not
respond to the letter and did not provide the State with
any of the requested discovery. Consequently, on February
15, 2001, the State moved the court to compel Menzies’
discovery responses. Brass again filed no response to the
State’s motion to compel. On March 28,2001, the district
court granted the State’s motion to compel and ordered
Menzies to immediately provide the requested discovery. In
its order, the court stated, “The extensive period since
discovery began has provided [Menzies] with ample
opportunity to investigate his claims; consequently,
[Menzies] should have the information to answer the
outstanding discovery readily available.”
35 Despite the court’s order, Brass did not
provide testate with any of the requested discovery. Brass
likewise did not inform Menzies of his failures to comply
with discovery and did not send Menzies copies of any of
the State’s discovery requests. Indeed, at an evidentiary
hearing held before the district court, Brass acknowledged
that Menzies did not have personal knowledge of any of the
discovery issues at a time that he could have done anything
about them. In fact, Menzies did not even know that Brass
had defaulted on the various discovery motions until August
12, 2003. Brass has since stated that he did not respond to
any of the State’s discovery requests because he had not
done any investigation and therefore had no information to
provide. Brass has also acknowledged that he could have
informed the district court that he did not comply with
discovery because of his failure to investigate and could
have requested more time in order to do so. He did neither
of these things.
36 On April 19, 2001, the State moved for
sanctions pursuant to rule 37 of the Utah Rules of Civil
Procedure, requesting that the court prohibit Menzies from
introducing any evidence to support his claims beyond what
was already in the record. In its motion, the State argued
that sanctions were warranted because Menzies had willfully
refused to respond to discovery requests and had purposely
delayed the proceedings.Once again, Brass failed to
respond. Brass did not inform Menzies that the State had
moved for sanctions and did not provide Menzies with a copy
of the State’s motion. Nor did he communicate with the
district court regarding the reasons for his discovery
failures. On June 27, 2001, the district court granted the
State’s motion, thereby prohibiting Menzies from
introducing any further evidence to support his claims.
Brass did not tell Menzies about the court order or explain
to Menzies that he could no longer investigate his claims.
37 On October 29, 2001, the State moved for
summary judgment. The State sought to dismiss Menzies’
entire post-conviction petition, arguing that because
Menzies could not introduce any further evidence to support
his claims, the State was entitled to a judgment as a matter
of law on the existing record. Brass made no effort to
defeat the State’s motion; he has subsequently stated that
he did not even review the record to attempt to find
disputed material facts. Brass has also testified that he
was not in a position to know whether the facts were in
dispute because he had not investigated Menzies’ claims.
Again, Brass failed to respond to the State’s summary
judgment motion. He likewise did not contact the court to
ask for more time or to inform the court as to why the
facts were not in dispute. Nor did Brass inform Menzies
about the State’s motion or send Menzies a copy of it. On
December 7, 2001, the district court granted the State’s
summary judgment motion. An order to this effect was
entered on January 11, 2002, dismissing Menzies’ petition
in its entirety with prejudice.
38 On January 23, 2002, Brass spoke with Menzies
on the telephone. Menzies asserts that Brass told him the
State was trying to get a summary judgment, but not to
worry about it because there was a discovery stay in place
for the State. If Brass said this, it was an outright lie;
the record reflects that no discovery stay was ever
imposed, and the State’s summary judgment motion had
already been granted due to Brass’ failures to comply with
discovery. In any event, Brass did not communicate with
Menzies for nearly a year following this conversation, even
though Menzies repeatedly tried to contact him both by
telephone and through letters. At no point did Brass inform
Menzies that his case had actually been dismissed.
39 On February 11, 2002, Brass filed a notice of
appeal with the district court indicating that he was
appealing the summary judgment to the Utah Supreme Court.
However, Brass did not file a docketing statement within
the time required by rule 9of the Utah Rules of Appellate
Procedure, and this court dismissed the appeal. We then
allowed Menzies to avoid the dismissal by filing a
transcript request; Brass indicated that no transcript was
required. We set a briefing schedule, but Brass never filed
an appellate brief even though we twice granted him
additional time to do so. The State filed a motion to
dismiss the appeal, and Brass failed to respond. We
dismissed Menzies’ appeal on November 21, 2002, but
indicated that if a brief were filed within ten days we
would reinstate the appeal. Brass never filed a brief, so
we entered a notice of decision dismissing Menzies’ appeal
on December 19, 2002. Brass did not inform Menzies of any
of these developments.
40 While the faulty appeal was proceeding in this
court, Brass filed with the district court a motion to set
aside the summary judgment pursuant to rule 60(b) of the
Utah Rules of Civil Procedure on April 11, 2002. This
motion was not accompanied by a memorandum but stated that
“[t]he specific grounds for this motion shall be set forth
in a subsequent memorandum.” Brass never filed a supporting
memorandum.
41 On December 30, 2002, nearly a year after the
case had been dismissed, Brass finally sent a letter to
Menzies informing him about the summary judgment. In the
letter, Brass stated,”The Attorney General’s office has
managed to obtain a summary judgment in your writ based
upon our alleged failures to comply with certain discovery
requests on their part. This is my responsibility and not
yours. I am doing what is necessary to have this set
aside.” Menzies received this letter on January 2,2003.
Menzies wrote a reply letter to Brass that same day. He
expressed that he did not know what discovery requests
Brass was referring to and asked Brass to contact him as
soon as possible to explain why the summary judgment had
been entered. Following Menzies’ letter, Brass made no
contact with Menzies for nearly two months. On January 10,
2003, the State requested permission from the district
court to file a late response to Menzies’ unsupported
motion to set aside. Again, Brass filed no responsive
memoranda, and the State filed a notice to submit the
matter for decision on January 29, 2003. Before the
district court could rule on the matter, however, Judge
Lewis was assigned to the case. Brass promptly notified the
State of a potential conflict; Judge Lewis had performed
Brass’ wedding. On March 6,2003, Judge Lewis recused
herself from the case, and the case was subsequently
reassigned to Judge Brian.
42 Brass finally visited with Menzies at the
prison on March 5, 2003. At the meeting, Brass informed
Menzies that he was going to need a new lawyer, although he
did not tell Menzies that he was going to withdraw or give
Menzies any impression that he was going to stop
representing him. Brass also told Menzies once again that
he was doing what was necessary to set aside the summary
judgment. Brass did not discuss the procedural history of
the case with Menzies, explain his various defaults that led
to summary judgment, or tell Menzies that he had defaulted
the appeal and failed to file a memorandum supporting the
motion to set aside.
43 In June of 2003, Menzies’ current counsel,
attorney Elizabeth Hunt, attended a capital litigation
seminar. While attending the seminar, Hunt was asked to
check on Utah’s deathrow cases to ensure that nothing “was
falling through the cracks.” On July 21, 2003, Hunt
contacted Thomas Brunker, the State’s counsel of record in
this case. Brunker informed Hunt about Menzies’ case, and
Hunt promptly contacted Menzies and began researching and
preparing to represent him. On August 12,2003, Hunt showed
Menzies the case dockets and explained the procedural
posture of the case. This was the first time that Menzies
had knowledge that Brass had defaulted during the discovery
process, that the summary judgment had been imposed due to
these defaults, and that Brass had defaulted in the appeal.
On that same day, Hunt filed an appearance as Menzies’
counsel, a motion to appoint rule 8 qualified counsel, and
a memorandum supporting the 60(b) motion to set aside the
summary judgment that Brass had filed over a year earlier.
In the memorandum supporting the 60(b) motion, the bulk of
Menzies’ argument focused on the errors made by Brass that
led to summary judgment.
44 On August 29, 2003, the State filed a
memorandum opposing the 60(b) motion. On September 9, 2003,
Brass withdrew as counsel. He has subsequently admitted
that while he may technically meet the requirements of rule
8, he “do[es] not understand the complex procedural rules
governing capital cases in state and federal
post-conviction” proceedings, and that he”cannot adequately
represent a capital defendant in post-conviction cases.”
The 60(b) motion was argued before the district court on
September 22, 2003, and the matter was taken under
advisement. On November 6, 2003, Hunt was formally appointed
to represent Menzies. On November 7, the district court
scheduled an evidentiary hearing for December 15, 2003, in
order to obtain evidence relating to communications between
Brass and Menzies during the period of Brass’
representation. The State moved for permission to conduct
discovery in preparation for the evidentiary hearing, and
Menzies opposed the motion. On December4, 2003, the
district court entered an order allowing both parties to
conduct discovery in preparation for the evidentiary
hearing and continued the hearing until January 15, 2004.
The State subsequently requested that Menzies produce all
documents relating to communications with his prior
post-conviction counsel — both Brass and the pro bono
team that had first represented him. The State’s theory
appears to have been that the evidence pertaining to the
pro bono team was relevant to Brass’ diligence, for if
their investigation had been damaging or unfruitful, it
would explain Brass’ failure to investigate.
45 Menzies objected to the State’s request,
arguing that the material the State sought was protected
work product. The disputed materials appear to have been
documents created by the private investigator for Menzies’
prior pro bono counsel based on his preliminary
investigation. He filed an index of withheld documents that
he requested the judge to review in-camera, and moved for a
protective order and for permission to file the protected
documents under seal. In his motions, Menzies asked the
district court to follow the standard for the discovery of
attorney work product set forth in Salt Lake Legal Defender
Ass’n v. Uno, 932 P.2d 589 (Utah 1997). At a hearing held
on January7, 2003, the district court denied Menzies’
motions, ordered Menzies to produce all the documents that
had previously been withheld, and allowed the State to make
working copies of the disputed documents but ordered them
not to disseminate the information to any third parties.
The evidentiary hearing proceeded as planned on January 15.
Menzies again objected when the State began referring to
the disputed documents. The court took the matter under
advisement and reviewed Uno as well as the disputed
documents over the evening recess. When the court
reconvened the next day, it ruled that the disputed
documents were inadmissible. It also ordered the State not
to make any copies of the documents and to destroy the
copies it already possessed at the conclusion of the
hearing. The court indicated that if the State wished to
question witnesses based on the materials, it should
discuss the matter at side bar along with Menzies’ counsel,
“and then the questioning will proceed on a
question-and-an-opportunity-to-object basis for each
question.” Following the evidentiary hearing, Menzies filed
a proposed order relating to the destruction of the
documents the district court had ruled inadmissible at the
evidentiary hearing. The State objected to Menzies’
proposed order, arguing that it went beyond the scope of
the court’s instructions, and filed its own proposed order.
46 On February 26, 2003, the court issued its
60(b)ruling. The court analyzed Menzies’ claims under four
separate subsections of rule 60(b): 60(b)(1) and 60(b)(4)
through (6). The court found that Brass’ representation
clearly constituted ineffective assistance of counsel,
stating that Brass’ actions”were inexplicable failures to
follow rudimentary procedural requirements and comply with
court-ordered deadlines.” According to the court, Brass’
“inaction appears to have been willful and deliberate
rather than the result of ignorance or carelessness.” While
the court held that Menzies should not be held accountable
for Brass’ failures, it held that Menzies could be held
accountable for his own failures. According to the district
court, Menzies “must still exercise that level of diligence
that a reasonably prudent person in his circumstances would
exercise.” The court found that “a reasonably prudent
person in [Menzies’]circumstances would have, at a minimum,
contacted the court about his concerns” and “would have
dismissed Brass as counsel of record.” The court thus held
that Menzies had acted unreasonably under the circumstances
and denied his motion for 60(b) relief.
47 On April 5, 2004, the district court issued its
order regarding the destruction of the documents that had
been held inadmissible at the January 15 evidentiary
hearing. The court ordered the State to destroy all the
documents that had been on Menzies’ index of withheld
documents unless any of the documents had already been in
its possession or were provided to the State from another
source. In addition, the court ordered the State not to
disseminate the information contained in the documents or
investigate matters learned of from its review of the
documents.
48 On April 22, 2004, Menzies filed a notice of
appeal with the district court indicating that he would
seek review of the court’s denial of 60(b) relief as well
as the order regarding the destruction of the inadmissible
documents. Menzies’ appeal is now before this court. We
have jurisdiction pursuant to Utah Code Ann. §
78-2-2(3)(i) (2002).
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