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 Post subject: BYU's Police Dept.: Whatever It Needs To Be On A Given Day
PostPosted: Fri Jul 13, 2018 8:40 pm 
Dark Lord of the Sith
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As anyone looking at the board and/or current Utah news is aware, board member Consiglieri (under his real name, obviously) recently won a ruling from the Utah Records Committee, finding that BYU's police department is a government agency for the purpose of the Utah Government Records Access and Management Act.

As anyone familiar with this story also probably knows---and by anyone, I mean you who are reading this post right now---BYU took the position that its police department is a private agency of the university (which means ultimately of the LDS church), and therefore is not subject to public scrutiny of its investigative records.

Funny thing about that: it seems that when laws applicable to governmental agencies are unfavorable to BYU, its police department is claimed not to be a government agency. But when BYU stands to benefit from laws applicable to governmental agencies, suddenly its police officers are government employees. In 2014, BYU took the latter position in front of the Utah Supreme Court. People who hold to a concept of consistent reality might notice that this is the exact opposite of what BYU claimed in the GRAMA case.

The 2014 case was called Mallory v. Brigham Young University, 2014 Utah 27, 332 P.3d 922. A PDF of the Utah Supreme Court's ruling is here. If you would rather see it as HTML instead, it's here.

In Mallory, the eponymous plaintiff went to a BYU football scrimmage and left on his motorcycle after the game. A BYU traffic cadet working for BYU's police department was directing traffic under the supervision of an officer from BYU's police department.

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this guy Mallory got into an accident with a car and said it was the BYU traffic cadet's fault because she screwed up directing traffic. So he sued BYU. But BYU argued that it was protected by the Utah Governmental Immunity Act.

The Utah Governmental Immunity Act is a statutory scheme (in this context that means "framework," not "trickery"---although the latter is debatable) that sets limits on when and how people can sue state and local governments and governmental agencies in Utah. You may have inferred that from the name. One of the provisions in the Act, which is especially pertinent here, is that people seeking to sue the government or a governmental agency have to send a notice of claim to the agency or its designated agent prior to filing suit. The agency then has a period of time to pretend to evaluate the claim and either settle or deny the claim. If a plaintiff does not follow this procedure before filing a complaint in court, under the terms of the Act their lawsuit will be dismissed.

So BYU accordingly said in Mallory that its police officers, including this traffic cadet, were operating under the authority of and supervision of the Provo police department. Therefore, according to this argument, the BYU police department is composed of government employees who are shielded by the Utah Governmental Immunity Act, and since Mallory didn't send in a notice of claim before filing suit, the courts had no jurisdiction to consider his case and had to dismiss it. 'Cause he didn't follow the rules. And the majority of the Utah Supreme Court agreed with this argument and ruled that BYU's police officers were government employees. So Mallory's case against BYU was dismissed.

Note: it's not that BYU's police officers were independent contractors performing a governmental function (directing traffic). It's that its police officers were government employees, full stop. From Chief Justice Christine Durham, ¶ 21:

In light of this well established standard for determining the existence of a master-servant relationship, we hold that the BYU Defendants were servants—and therefore Employees—of Provo City because the city retained the right to control the manner in which the BYU Defendants directed traffic. Support for this determination comes from the Provo City Code, which strictly regulates the circumstances under which the BYU Defendants may perform the city's nondelegable duty of traffic control, and contains several additional controls over the direction of traffic by nonpeace officers, including the city's ability to terminate the BYU Defendants' service at any time.

TL;DR: That which is a fact under one circumstance, may be, and often is, not a fact under another.

Now, there is a way you can look at this in the best light possible for BYU and say that the issue isn't whether its police department is a governmental agency in general, but rather whether it is acting as a governmental agency in a particular circumstance. Unfortunately, even though one might make a straight-faced legal argument to that effect, in terms of the totality of the real world, that's the worst light possible for BYU. I'll devil's advocate this below, because "devil's advocate" is a verb.


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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Fri Jul 13, 2018 8:57 pm 
Dark Lord of the Sith
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So the Devil's Advocate reads my opening post.

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And he says, God is an absentee landlord hey, smartass, you know your little quip paraphrasing Joseph Smith about a fact not being a fact in another circumstance? That's actually true. The Utah Supreme Court in Mallory didn't rule on whether or not BYU's police department is always at all times a governmental agency. It only ruled on the narrow question of whether, under that specific set of facts, its officers (and cadet) were acting as government employees. And the court went through the specific factual reasons of why that was so in that case. Provo City has an ordinance that allows its police to supervise private agencies in directing traffic. Per the ordinance, the Provo police are in control of when and how these private agents direct traffic, the Provo police tell the private agents exactly what, when, and how they are to direct traffic, and the chief of police can terminate the private agent's services at any time. That is squarely within the parameters of a master-servant relationship, as the court held.

So, the Devil's Advocate continues, BYU isn't contradicting itself between Mallory and these GRAMA cases. They're saying that under the specific circumstances in Mallory, they were acting as government employees, as provided by Provo city ordinance. But that doesn't mean that BYU's police are always, at all times, government employees. You have to look at the scope of what they were doing in a given case.

That, Devil's Advocate says, is how they can make a good faith argument in the GRAMA matters that when BYU police interviewed Joseph L. Bishop about allegedly sexually abusing a young female missionary, they're not subject to government records disclosure requirements. Because when they interviewed Bishop about these criminal allegations, BYU police were not acting as governmental law enforcement officers. They were instead acting as the private security agents of a private church-owned university.

While they were investigating a felony.

Which means they were not treating this as a criminal matter, but a private one.

Which means they were covering it up.

Whoops.


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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Fri Jul 13, 2018 9:02 pm 
B.H. Roberts Chair of Mopologetic Studies
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Very nice to see you, Dr. Darth J. Your insights into these matters are, as always, trenchant and valuable.

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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Fri Jul 13, 2018 9:58 pm 
God
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yes, it's good to see you Darth, I hope all is well with/for you.


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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Fri Jul 13, 2018 10:15 pm 
God
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I am never surprised that the church aggressively pursues its legal rights. It was born fighting the law with Joseph Smith, fought the law over the years with BY and the other "prophets" and the today's leadership consists of many lawyers. If there is ever an organization that loves legal reasoning and legal analysis, it is the church. Hell, the whole church system of baptism, temple covenants and handshakes is itself overly legalistic.

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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Sat Jul 14, 2018 1:27 am 
God

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Remind me, was Christ prone to speaking out of both sides of His mouth dependant on circumstantial necessity?

*I love it when Darth J shows up.

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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Sun Jul 15, 2018 4:18 am 
θεά
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What are the odds that BYU appeals this and a higher court sides with them?

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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Sun Jul 15, 2018 6:40 am 
God
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If I was Consig I'd ask any temple going Mormon judge assigned this case to recuse themselves due to the convenants they take out in the temple. The one about time, talents and all that to building up the kingdom of God.

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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Sun Jul 15, 2018 2:19 pm 
God

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SteelHead wrote:
If I was Consig I'd ask any temple going Mormon judge assigned this case to recuse themselves due to the convenants they take out in the temple. The one about time, talents and all that to building up the kingdom of God.
I agree.


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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Tue Jul 17, 2018 4:44 pm 
God
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Great comment about Mallory, Darth!

Here is something funny I found out only a few days before the hearing.

Everybody was waiting for Judge Laura Scott to get around to making her ruling on the SLT appeal in the Honor Code case. Everybody knew that she was going to rule BYUPD was a governmental agency.

A few days before the ruling, I found out that Judge Scott had already ruled BYUPD was a governmental agency! And she did so back in January of 2017! And it was in the same case appealed by the SLT!

Here's what happened.

In that case, the Utah Records Committee did what it has historically done; which is to rule that BYUPD is not a governmental agency and therefore not subject to GRAMA.

This happened in summer of 2016.

The Salt Lake Tribune appealed to District Court where it was assigned to Judge Laura Scott.

Not content to let the appeal process play out, one of the parties filed a motion to dismiss the appeal before it was even heard.

And the party that filed the motion to dismiss the appeal was, believe it or not, the Utah Records Committee; the very entity from whose decision the appeal had been taken.

I am not kidding about this.

The Utah Records Committee filed a motion to dismiss the appeal that was taken from the decision the Utah Records Committee itself made.

The basis for the motion to dismiss, you ask?

The basis for dismissing the appeal argued by the Utah Records Committee was that the Utah Records Committee had made the correct decision!

But isn't that the entire point of the appeal, you ask?

Indeed it is, which makes this look all the stranger. And makes it potentially look like the Utah Records Committee is in the tank for BYU.

The result was that Judge Laura Scott denied the motion to dismiss.

And as part of her 17-page detailed opinion in denying the Committee's motion to dismiss, she specifically found that BYUPD was a governmental agency and was subject to GRAMA.

Her order denying the motion to dismiss was filed in January of 2017.

This is why everybody knew what her decision would be; because she had already made it.

And this possibly explains why it is BYUPD did not even show up at the appeal to the Committee in my case last week.

Oh, and back to Mallory, Darth.

Judge Scott cited to the Mallory case as support for her position that BYUPD is a governmental agency, and was not persuaded by the Committee's arguments to the contrary.

So you are in good company with your interpretation of the Mallory case.

Good seeing you, by the way!

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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Tue Jul 17, 2018 7:04 pm 
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"but rather whether it is acting as a governmental agency in a particular circumstance."

The PD was speaking as a man in this case.


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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Sun Jul 22, 2018 10:32 am 
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Has been a few decades now but I remember BYU Police had more powers than most local police depatments. BYU cops could go anywhere in the State without calling on local agencies and arrest, detain, whatever.

Have been gone for some time, but maybe others will remember this one. Not sure if the State changed how they operated or not.

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 Post subject: Re: BYU's Police Dept.: Whatever It Needs To Be On A Given D
PostPosted: Sun Jul 22, 2018 12:47 pm 
God
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They were a wild and crazy bunch back in the Wilkinson days. :eek: Might as well have put on their sashes and done some Danite drills.

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