Snow, Christensen v. Hon. Lindberg

2009 UT 72
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Snow, Christensen & Martineau; No. 20080928
Raymond Scott Berry; Willie
Jessop; Dan Johnson; and
Merlin Jessop,
Petitioners,
v.
F I L E D
The Honorable Denise P. Lindberg,
Respondent. November 3, 2009
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Third District, Salt Lake
The Honorable Denise P. Lindberg
No. 053900848
Attorneys: Michael D. Zimmerman, Troy L. Booher, Katherine A.
Carreau, Salt Lake City, James C. Bradshaw, Mark R.
Moffat, Sandy, for petitioners
Brent M. Johnson, Salt Lake City, for respondent
Mark L. Shurtleff, Att’y Gen., Annina M. Mitchell,
Timothy A. Bodily, Randy S. Hunter, Asst. Att’ys
Gen., Salt Lake City, for State of Utah
Jeffrey L. Shields, Zachary T. Shields, Mark L.
Callister, Michael D. Stanger, Salt Lake City, for
United Effort Plan Trust by Bruce R. Wisan
Roger H. Hoole, Heather E. Morrison, Gregory N.
Hoole, Salt Lake City, for Richard Jessop Ream, et
al.
Terry Goddard, Att’y Gen., William A. Richards, Chad
B. Sampson, Asst. Att’ys Gen., Phoenix, AZ, for State
of Arizona
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Per Curiam:
¶1 This matter was filed as a petition under rule 8A of
the Rules of Appellate Procedure. We dismiss the petition
without prejudice and take this opportunity to clarify the scope
and purpose of rule 8A.

No. 20080928 2
¶2 This petition arises from a dispute relating to the
district court’s supervision of the “United Effort Plan Trust.”
On November 10, 2008, Petitioners filed a pleading with this
court captioned as a “Rule 8A Petition for Emergency Relief.”
The petition stated it was filed “pursuant to Rules 8A and 19 of
the Rules of Appellate Procedure,” and specified two requests for
emergency relief: (1) a stay of a hearing scheduled for November
14, 2008, and (2) a stay of enforcement of an order requiring
disclosure of communications that Petitioners asserted were
protected by attorney-client privilege. The latter request was
presented in the context of the district court’s disqualification
of Snow, Christensen & Martineau as counsel for members of the
Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS
Church). This court initially denied the request for stay of the
November 14 hearing but entered a provisional stay as to the
district court’s disqualification of Snow, Christensen &
Martineau and the disclosure of the purportedly privileged
communications. It also requested supplemental pleadings and
scheduled oral argument.
¶3 The petition also indicated an intent to “file separate
Rule 19 review petitions” challenging three related rulings by
the district court. However, the parties to the underlying
dispute thereafter undertook settlement negotiations and moved
this court to stay the matter pending the outcome of those
negotiations. On November 19, 2008, this court granted the
motion, which had the effect of canceling the previously
requested supplemental pleadings and oral argument. In light of
these developments, Petitioners did not file the separate rule 19
petition originally anticipated by their rule 8A petition.
¶4 Recently, Petitioners have asserted that settlement
negotiations have failed. They also have moved to “lift stay and
reset briefing and oral argument.” Real Parties in Interest the
State of Utah, the State of Arizona, and the Court-appointed
Trustee of the United Effort Plan Trust have opposed the motion
for various reasons. For the reasons briefly explained below, we
dismiss the petition.
¶5 As a preface to this explanation, a brief overview of
rule 8A of the Rules of Appellate Procedure is in order. The
stated purpose of rule 8A is to provide “emergency relief . . .
sought within a time period shorter than specified by otherwise
applicable rules.” In essence, this rule acknowledges there may
be circumstances where the established procedural mechanisms for
obtaining appellate relief are not sufficiently expeditious. It
does not, however, purport to supplant those mechanisms. At
most, it shortens the time frames for addressing appellate
matters when adherence to the regular deadlines would effect a

1 See Utah Code Ann. §§ 78A-3-102(2) & 78A-4-103(1)(b),
describing appellate courts’ authority to issue “writs and
process . . . in aid of [their] jurisdiction.”
2 For the same reason, rule 8A should not be employed as a
means for harassing or unjustifiably burdening respondents when
ordinary procedural mechanisms would be adequate. This includes
the circumstance where the “emergency” has arisen from
petitioners’ own unjustified delay in seeking relief. Appellate
courts also retain the discretion to waive the abbreviated
response deadline when it is apparent on the face of the petition
that emergency relief is unnecessary or unjustified.
3 This does not mean a rule 8A petition cannot reference
nonemergency claims or requests for relief as a justification for
the relief it does request (or to provide necessary context).
The rule 8A petition need only recognize that it is not the
instrument for obtaining nonemergency relief.
4 Notwithstanding this directive, a rule 8A petition may be
combined with a motion for a stay under rule 8 of the Rules of
Appellate Procedure, provided the requirements of both provisions
are met by the same pleading. In other words, we see no reason
to require a separate rule 8 motion under conditions where a rule
(continued...)
3 No. 20080928
denial of justice.
¶6 Rule 8A accomplishes its ends by designating the relief
sought as “emergency” and by providing a very abbreviated time
for response. Although the rule describes a “petition” rather
than a “motion,” it does not purport to independently invoke
appellate jurisdiction. There may be circumstances where limited
provisional forms of relief (e.g., an emergency stay to preserve
the status quo) can be obtained prior to the formal invocation of
appellate jurisdiction,1 but rule 8A cannot be employed to
independently invoke that jurisdiction. Accordingly, appellate
jurisdiction must be contemporaneously and properly invoked by
some distinct method before an appellate court may grant anything
other than provisional relief under rule 8A.
¶7 Moreover, because the abbreviated response deadline has
the effect of placing a substantial burden on respondents,2 a
rule 8A petition should not incorporate requests for relief that
require something less than emergency treatment.3 To promote
compliance with this directive, we now hold a rule 8A petition
cannot be combined with another petition that invokes appellate
jurisdiction.4 We believe this is essential to avoid placing an

4 (...continued)
8A petition can serve the same purposes (though the filing of a
separate rule 8 motion also could be appropriate). The appellate
court also may choose to grant a provisional stay under rule 8A,
followed by a decision under rule 8 as to whether to lift the
stay or render it more permanent pending resolution of the merits
of an issue for which its jurisdiction is properly and
independently invoked.
5 For example, assume the circumstance where a party
ordinarily would be permitted to seek some form of relief via a
rule 5 petition for interlocutory appeal or a rule 19 petition
for extraordinary relief. However, the ability to obtain that
relief will be irrevocably impaired if an imminent lower court
order goes into effect, and attempts to obtain a stay have been
unsuccessful or would be futile. The appropriate procedure would
be to file a rule 8A petition limited to a requested provisional
stay of the order, accompanied (or shortly followed) by a
separate rule 5 or rule 19 petition (and possibly a motion under
rule 8 to render the stay more permanent). The separate rule 5
or rule 19 petition would then address the asserted error in the
underlying proceedings, with the ordinary time lines applying to
any response.
6 A renewed invocation of this court’s jurisdiction
presented in the light of the current status of the case also
likely would present a better posture for treatment of the
petition’s issues.
No. 20080928 4
unfair burden on respondents. Neither respondents nor appellate
courts should be required to devote substantial time and effort
on an expedited basis to nonemergency requests for relief merely
because a litigant has chosen to bundle those requests with
emergency claims in a rule 8A petition.5
¶8 We note that we do not perceive any abusive intent or
action in this case. Petitioners sought to invoke rule 19 in
addition to rule 8A, evidently seeking to confer jurisdiction on
this court. Their petition also focused on those elements of
relief that most plausibly could justify expedited treatment.
Nonetheless, applying the principles discussed above, we
determine that we lack jurisdiction to take further action on the
rule 8A petition because no invocation of our jurisdiction was
accomplished by a separate pleading. According to the ruling
described above, we also deem the petition’s reference to rule 19
to be insufficient to invoke our jurisdiction.6 Further
appellate treatment, if any, of the limited issues presented by
the original rule 8A petition must be accomplished by renewed

7 At least one of the issues presented by the rule 8A
petition is no longer relevant. We declined to stay the November
14, 2008 hearing, which subsequently was canceled. Although it
appears similar proceedings have recommenced in the district
court, the original petition was not specifically directed at
those proceedings and we decline to apply it to those proceedings
by analogy.
5 No. 20080928
action consistent with this decision.7
¶9 This petition is dismissed without prejudice. The stay
relating to disqualification and disclosure of communications,
however, will remain in place for thirty days from the date of
the issuance of this decision. If Petitioners desire to maintain
the stay (or one similar to it) beyond that time, a new request
must be submitted in the context of an appropriate invocation of
this court’s jurisdiction.