Composed entirely of attorneys who have clerked for appellate courts, including the U.S. Supreme Court, Kirton & McConkie's Constitutional, Religious, Appellate, & Public Policy Practice Section has extensive experience representing the rights of organizations before appellate courts. It has litigated First Amendment issues, including freedom of religion, free speech, and freedom of the press before the highest courts in the land. For instance, Kirton & McConkie was counsel in the landmark Supreme Court case of Corporation of the Presiding Bishop v. Amos, which upheld the religiously-based exemption under Title VII against a challenge under the Establishment Clause. The firm has wide experience in areas of federal jurisdiction and procedure and is uniquely qualified to provide appellate representation on constitutional issues and other matters of public importance.  The experience of the firm, however, is not limited to the courtroom.  It also includes the development of sound public policy initiatives, extensive representation before legislative regulatory, and administrative bodies, and a proven track record of creatively and effectively advancing and protecting the interests of clients based on legal, political, and strategic considerations.  In addition, the firm is highly skilled in conducting independent legal investigations, implement strategies for minimizing risk, and manage complex litigation in Utah and other jurisdictions.

 
Kirton & McConkie's Constitutional, Religious, Appellate, & Public Policy Practice Section combines the broad resources of the firm with specific experience in the issues that uniquely affect religious institutions and other nonprofit organizations. Over the past several years, we have assisted a diverse array of such organizations, including churches, religious schools and universities, and religiously-affiliated publishers. Often, our lawyers have had a leading role in shaping the law governing these institutions. 

Led by Von G. Keetch, who clerked for Justice Antonin Scalia at the U.S. Supreme Court, the Constitutional, Religious, Appellate, & Public Policy Practice Section consists also of three attorneys who have clerked on Federal Courts of Appeal, and three who have clerked for state appellate courts.  The section also includes a former member of the Utah House of Representatives. The members of the section practice extensively before state and federal courts at all levels including the United States Supreme Court and provide representation before legislative, regulatory, and administrative bodies. In addition to representing clients in a broad range of First Amendment cases, the section is very active in consulting and preventative law and the filing of amicus briefs for parties wishing to present their specific viewpoints to a court.  

       To help you anticipate and better understand current  issues, Utah Policy Daily and the Constitutional, Religious, Appellate, and Public Policy Section of the law firm of Kirton & McConkie have teamed up to provide regular updates on key issues before the courts.  The Utah Supreme Court’s oral argument schedule can be found here: http://www.utcourts.gov/cgi-bin/opinions/oralarg.cgi?filename=9&court=sup.

 Below is additional information on a highlighted case.

Michael P. O’Connor v. Gary W. Burningham, et al.

 Factual Summary:

             Appellant O’Connor is a high school girl’s basketball coach.  He was recruited from California to coach at Lehi High School.  After successfully turning the program around, he incurred the wrath of certain parents of girls on the team because they felt that he overused one girl on the team, despite her being considered by many to be one of the top high school girl’s basketball players in the United States.  When the parents did not seem to get satisfaction from complaining to the high school principal, they met as a group, formed a committee, and started to undertake what action they could to get O’Connor terminated.  Ultimately, in July of 2004 the parents along with a number of their family members and friends (collectively the Appellees) wrote numerous letters, addressed variously, including to the Alpine School Board, all of which letters were collected by two of the Appellees and delivered to the home of one member of the Alpine School Board.  That board member read all the letters, concluded that the allegations must be true because of the sheer number of the letters, passed them on to the School District Superintendent.  The Appellees then attended a regularly scheduled meeting of the School Board where, during the open forum portion of the meeting, they referred to their letters and, as many as were allowed to speak, expressed many of the same views in their comments at the public meeting as they had expressed in their letters.  Basically the letters and comments wrongly accuse Appellant O’Connor of emotional and psychological abuse towards the girls on the basketball team, financial dishonesty with school funds, illegal recruiting of girls to the team, unethical behavior, favoritism, and discrimination.  O’Connor claims that such statements are not only defamatory, but defamatory per se because such claims charge criminal conduct and conduct which is incompatible with the exercise of a lawful business, trade, profession, or office.

            Appellees filed a Motion for Summary Judgment, claiming principally the School Board proceeding was protected speech because it was in the form of a petition to the government for a redress.  In the alternative they claimed that Plaintiff was a public person.  As a side argument, they alleged in the alternative that O’Connor was also a public official.  The trial court heard argument and then ruled that O’Connor was a public official and that there was nothing from the face of the letters written by the Appellees that would show malice.  The trial court therefore granted Appellees summary judgment.

Assignment:

            The case has been transferred to the Court of Appeals pending a ruling on the transfer by the Supreme Court.  It is respectfully submitted that the Supreme Court should retain the case.

            The principal basis for the trial court’s granting of Summary Judgment was its conclusion, based on its reading of Van Dyke v. KUTV, 663 P.2d 52 (Utah 1983), that as a matter of law a high school basketball coach is a public official for the purposes of defamation.  That appears to be a matter of first impression in Utah.  “As libel cases involving public school teachers mount, courts remain split on whether teachers are public officials.  As time passes, however, there seems to be a movement toward the view that teachers are not public officials, even though they have an important societal role and are paid with public funds.”  W. Wat Hopkins, Teachers as Public Officials in Libel Actions.  47 Ed. Law Rep. 353, 364 (1988).  This court recently issued a lengthy decision in Wayment v. Clear Channel Broad., Inc., 2005 UT 25, 116 P.3d 271, concerning the distinction between a private person and a public person for the purposes of defamation.  That analysis now needs to be extended to clarify what constitutes a public official for the purposes of defamation.  Wayment makes it clear that people like high school basketball coaches would not, except in the rarest of cases, be considered public person, and then probably only as limited-purpose public persons.  The case cited by Appellees to the trial court in support of their “public official” claim was Madsen v. Limited Television, Inc., 797 P.2d 1083 (Utah 1990) which in turn relied on Van Dyke.  The Madsen case concerned a police officer who was involved in a fatal shooting.  This Court in that case held that the police officer was a public official for the purposes of defamation.  However, courts which have held a police officer to be a public official have consistently held that teachers are not.  Richard E. Johnson, No More Teachers’ Dirty Looks, 17 Fla. St. U. L. Rev. 761, 797 (1990).  Moreover, a more recent case on the subject is Russell v. Thompson Newspapers, Inc., 842 P.2d 896 (Utah 1992), which reaffirmed that in determining whether someone is a public official in defamation cases, the “public scrutiny” test must apply entirely apart from the particular controversy.  Id. At 903.  It is submitted that the instant case has broad ramifications for defamation claims and particularly for those employed in the public sector.  The Supreme Court should lead the way in clarifying and setting the question on the “public official” limitation on defamation cases, just as it did for the “public person” issue in Wayment.

 You can find more information on these cases by contacting R. Chet Loftis at 801-328-3600.