Williams v. Department of Corrections

2013 UT App 159
_________________________________________________________
THE U TAH COURT OF A PPEALS
R EGINALD WILLIAMS,
Petitioner and Appellant,
v.
D EPARTMENT OF C ORRECTIONS,
Respondent and Appellee.
Memorandum Decision
No. 20120025‐CA
Filed June 27, 2013
Third District, Salt Lake Department
The Honorable L.A. Dever
No. 110918680
Reginald Williams, Appellant Pro Se
John E. Swallow and Peggy E. Stone, Attorneys for
Appellee
J UDGE J. FREDERIC VOROS J R . authored this Memorandum
Decision, in which J UDGE WILLIAM A. T HORNE J R . concurred.
J UDGE J AMES Z. D AVIS concurred in the result.
VOROS, Judge:
¶1 	Reginald Williams appeals the dismissal of his rule 65B
petition and associated claims against the Utah Department of
Corrections (the Department). We reverse and remand.
¶2 	Williams appears pro se. “[A] party who represents himself
will be held to the same standard of knowledge and practice as any
qualified member of the bar. Nevertheless, because of his lack of
technical knowledge of law and procedure, [a pro se litigant]
should be accorded every consideration that may reasonably be
indulged.” State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (citation
and internal quotation marks omitted).

Williams v. Department of Corrections
20120025‐CA 	2013 UT App 159	2
¶3 	Williams initiated this action by filing a document entitled
“Petition for Extraordinary Relief, Independent Action, Petition for
Review of Records Denial.” The Department moved to dismiss.
Williams opposed the motion to dismiss and moved to disqualify
the entire Utah Attorney General’s Office (the Attorney General).
As grounds for his disqualification motion, he alleged that
Department officials had confiscated all of his legal materials at the
direction of an Assistant Attorney General (the Assistant AG), that
the Assistant AG had read his legal materials related to this
lawsuit, and that this exposure of his work product gave the
Department an unfair advantage in defending against his claims.
Consequently, he argued, all attorneys employed by the Attorney
General were “required to be screened.” The Attorney General did
not respond to this motion and the trial court did not rule on it.
Rather, the trial court dismissed the petition.
¶4 	On appeal, Williams challenges the dismissal of his petition.
But 	he 	also 	contends 	that 	the 	Attorney 	General 	should 	be
disqualified from representing the Department on the same
grounds he argued before—that the Assistant AG gained an unfair
advantage by viewing Williams’s legal papers. He relies on State v.
McClellan, 2009 UT 50, 216 P.3d 956.
¶5 	The Department does not respond to the merits of this claim.
Rather, it asserts that “Williams did not raise the issue of shared
confidences in any recognized pleading below.” It is true that
Williams did not use the exact phrase “shared confidences” in his
trial court motion, nor did he cite to McClellan, from which that
phrase derives. But a “litigant has no obligation to ‘preserve’ his
citation to legal authority.” Torian v. Craig, 2012 UT 63, ¶ 20, 289
P.3d 479 (citation omitted). “If the foundation of a claim or
argument is presented in a manner that allows the district court to
rule on it, a party challenging the lower court’s resolution of that
matter is free to marshal any legal authority that may be relevant

Williams v. Department of Corrections
1. An issue may be preserved even if the trial court does not
actually rule on it, because “raising the issue below in [an] objec‐
tion [is] sufficient to preserve it on appeal.” State v. Mead, 2001 UT
58, ¶ 43 n.7, 27 P.3d 1115 (overruling State v. Ortiz, 782 P.2d 959,
961 (Utah Ct. App. 1989) (holding that “[w]ithout a record of a
ruling below, we cannot review the trial court’s alleged error”)).
20120025‐CA 	2013 UT App 159	3
to its consideration on appeal.” Id. (footnote citations omitted). That
is all that Williams has sought to do here.1
¶6 	The parties do not claim, and the record does not reflect, that
the trial court ruled on Williams’s disqualification motion. To allow
a case to progress while potentially conflicted counsel continues to
represent a party “threatens to taint all further proceedings in the
case.” Cade v. Zions First Nat’l Bank, 956 P.2d 1073, 1081 (Utah Ct.
App. 1998) (citations and internal quotation marks omitted)
(identifying three factors used in deciding a motion to disqualify
for breach of confidentiality). Consequently, undue delay in ruling
on a disqualification motion, like “undue delay in filing a
disqualification motion[,] is costly, wasteful, and prevents the
speedy resolution of matters.” See Camco Constr., Inc. v. Utah
Baseball Acad., Inc., 2010 UT 63, ¶ 17, 243 P.3d 1269 (footnote
citation and internal quotation marks omitted) (referring to judicial
disqualification). Accordingly, a court should dispose of a motion
to disqualify counsel before proceeding to the merits of the case.
¶7 	That did not happen here. The trial court granted the
Attorney General’s motion to dismiss without having determined
whether 	the 	Attorney 	General 	should 	be 	disqualified 	from
representing the Department against Williams. We therefore
reverse and remand this case for the trial court to rule on
Williams’s disqualification motion.
¶8 	“If a new trial is granted, the [appellate] court may pass
upon and determine all questions of law involved in the case
presented upon appeal and necessary to the final determination of

Williams v. Department of Corrections
20120025‐CA 	2013 UT App 159	4
the case.” Utah. R. App. P. 30(a). Accordingly, “we have discretion
to address the issues that are likely to recur [in further proceedings]
to guide the trial court on remand.” State v. Sellers, 2011 UT App 38,
¶ 23, 248 P.3d 70 (citing State v. Low, 2008 UT 58, ¶ 61, 192 P.3d
867). “We therefore provide the following analysis to the extent it
may be helpful to the parties and the court as the case proceeds.”
Id.
¶9 	Williams’s petition, captioned “Petition for Extraordinary
Relief, Independent Action, Petition for Review of Records Denial,”
raised 	an 	assortment 	of 	claims. 	Some, 	but 	not 	all, 	sought
extraordinary relief under rule 65B of the Utah Rules of Civil
Procedure. Rule 65B allows a petition for extraordinary relief when
“no other plain, speedy and adequate remedy is available.” Utah
R. Civ. P. 65B. Early on the trial court characterized the entire
petition as a “Petition for Extraordinary Relief pursuant to Utah
Rules of Civil Procedure Rule 65B.” Accordingly, and despite
Williams’s objection, the trial court treated all of Williams’s claims
as components of a petition for extraordinary relief. It dismissed
some as previously adjudicated, some because they “do not fall
into any category of relief provided,” and some because they “are
not filed as 65B claims.” On appeal, Williams challenges the trial
court’s treatment of his claims and asserts that the trial court
should have addressed some of them as claims seeking ordinary
relief.
¶10 	Williams has not shown that the trial court erred in treating
the entire petition as one brought under rule 65B. In particular, he
identifies no authority permitting claims for ordinary relief to be
bundled with claims for extraordinary relief in a single hybrid
petition. 	A 	proceeding 	under 	rule 	65B 	is 	an 	extraordinary
proceeding with idiosyncratic procedural rules. See Utah R. Civ. P.
65B(b) (governing the commencement of proceedings, the requisite
elements of a petition, dismissal of frivolous petitions, responsive
pleadings, and service); id. R. 65B(a) (relief may be granted only
when “no other plain, speedy and adequate remedy is available.”)
A 	hybrid 	complaint 	would 	thus 	require 	the 	trial 	court 	to

Williams v. Department of Corrections
20120025‐CA 	2013 UT App 159	5
simultaneously apply two different procedural regimes. Because
this approach is unworkable, the trial court had discretion to
dismiss from a petition for extraordinary relief any claims seeking
ordinary relief.
¶11 	Indeed, rule 42 of the Utah Rules of Civil Procedure
provides a trial court with the discretion to join or sever multiple
causes of action. See Utah R. Civ. P. 42; Slusher v. Ospital by Ospital,
777 P.2d 437, 441 (Utah 1989) (“[T]rial courts enjoy considerable
discretion in deciding bifurcation and consolidation requests under
rule 42 of the Utah Rules of Civil Procedure.” (citations omitted));
see 	also 	Coleman 	v. 	Dillman, 	624 	P.2d 	713, 	716 	(Utah 	1981)
(“Severance is a standard procedural practice, and may be resorted
to for convenience and at the discretion of the trial court.” (citing
Utah R. Civ. P. 42(b))).
¶12 	In conclusion, after Williams moved to disqualify the
Attorney General, the trial court erred by failing to dispose of that
motion before proceeding further. We therefore reverse the trial
court’s dismissal and remand for further proceedings consistent
with this decision.