Babcock Scott Babcock Newsletter
November, 2008
Hard Hat Case Note
Reese v. Tingey, 2008 UT 7, 177 P.3d 605.
Recently, the Supreme Court of Utah issued its opinion in Reese v. Tingey, 2008 UT 7, 177 P.3d 605. Therein, the court heard an interlocutory appeal from a party in a trial court proceeding that disputed the trial court's order requiring its attorney to testify of confidential information exchanged in a prior mediation. The court reversed the trial court's order, holding that the content of mediation proceedings is to be kept confidential. The court further held that agreements reached in mediation must be reduced to writing in order to be subsequently enforced by a court.
An employee of a subcontractor sued a general contractor after being injured on the general contractor's construction project. Thereafter, the employee and general contractor agreed to attempt to settle their dispute in mediation. The employee was covered by workers compensation insurance. As such, the insurance carrier hired an agent to represent its subrogation interests at the mediation.
The employee alleged that he and the agent reached an oral settlement agreement and that he relied on that agreement in settling his claim against the general contractor. Thereafter, the mediator drafted a Memorandum of Understanding based on the two agreements. The agent, however, refused to sign the Memorandum, arguing that it included a term to which it never agreed.
As a result, the employee and general contractor filed a Joint Motion to Enforce Settlement. The trial court then determined that the agreement between the agent and employee was nonconfidential. As such, it ordered the attorney who represented the agent at the mediation to "appear and be deposed regarding the content of the mediation including the process of the mediation and the conversations and agreement that were made during the mediation." The agent's attorney opposed the order and filed a petition for discretionary interlocutory appeal with the Utah Supreme Court (the "Court"). The Court granted the petition.
In its analysis, the Court recognized that Utah Code Ann. §78-31b-8 establishes the purpose of mediation: to encourage the informal and confidential exchange of information in order to facilitate settlement. The Court then noted that "[t]his candid exchange of information and ideas can be achieved only when the parties are assured that their communications will be protected from post mediation disclosure."
The Court then took issue with the trial court's determination that the agreement at issue was nonconfidential. Specifically, the Court recognized that such a determination required a post mediation "fact sorting exercise" in order to distinguish between confidential and non-confidential matters. The Court then determined that if such an after-the-fact analysis and subsequent disclosure were allowed, parties' willingness to engage in mediation would be jeopardized.
Thereafter, the Court again referenced Utah Code Ann. § 78-31b-8 as prohibiting the subsequent disclosure of information obtained from ADR proceedings unless all parties, including the mediator, agree otherwise. Based on such factors, the Court affirmed that the content of mediation proceedings is to be kept confidential. Thus, after finding that no statutory exceptions to preserving confidentiality applied, the Court vacated the trial court's order requiring the agent's attorney to testify.
The Court then offered additional guidance. It held that because oral agreements in mediation cannot be enforced without disclosing confidential information, all agreements reached in mediation must be in writing in order to be subsequently enforced by a court.
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THE CRITICAL NEED FOR A REASONED SOLUTION TO THE PRESSING IMMIGRATION ISSUES
Robert F. Babcock, Esq.
Babcock Scott & Babcock
bob@babcockscott.com
6/16/2008
I am a civil engineer who went to law school to focus on helping solve legal issues in the construction industry. I have practiced construction law for about 30 years. The construction industry is facing a great crisis. The construction industry is and has been a great engine of our national and local economy building our homes, schools, offices, roads, utilities, etc. That engine, however, is being strangled for the lack of fuel. The fuel that is lacking is not diesel, although that is becoming more and more expensive. The construction industry engine is running out of the fuel of labor.
I write in support of a recent report issued by the Sutherland Institute entitled Onus or Opportunity? Conservatism and Illegal Immigration in Utah. The report is
available on line at http://www.sutherlandinstitute.org/. Our broken outdated immigration laws allow for about 65,000 skilled and 5,000 unskilled workers annually for the entire country. The number of visas for highly educated foreign workers (which includes engineers) is 85,000 annually which number is woefully inadequate. There is currently and has been for years a great need for engineers unmet by graduates from U.S. colleges. The need for construction workers, however, is much more critical than that of engineers yet more visas are allowed for all highly educated workers including engineers.
The U.S. economy demands and has demanded for many years hundreds of thousands of new workers every year above the number of workers already here. Let there be no misunderstanding: the demands of the economy have drawn the workers here. Our economy has gladly put them to work in the construction industry (about 15%), the agricultural industry (about 25%), the hospitality industry working in restaurants and hotels, in tough factory work, etc. The vast majority of the immigrants are here to work. If there were no jobs there would not be millions here.
Today there are approximately 20 million undocumented immigrants in the country the vast majority of whom came to fill needs in the economy. The undocumented workforce counts for about 5% of the total workforce. That is more than seven times the population of Utah. In Utah it is estimated that we have about 100,000 illegal immigrants- the equivalent of more than half the population of Salt Lake City proper.
Pamela Perlich, a Senior Research Economist for the Bureau of Economic and Business Research for the University of Utah reported on her study about immigration in Utah entitled Immigrants Transform Utah: Entering a New Era of Diversity in the BEBR May/June 2004 publication found at http://www.bebr.utah.edu/. She reported that "Utah ranks among those states with the very highest rates of increase in diversity and is prominent among the newly emerging gateways for immigrants....These immigrants are not only integral to the economy, but are transforming the formerly monolithic culture and homogeneous population of the state, creating a new era of diversity for Utah." About 15% of the Utah population, according to the 2000 census, are minorities about two-thirds of which are Hispanic. She goes on to report that "Employment in Utah increased by roughly 35,000 jobs annually over the decade [1990s], which created labor shortages. Immigrants came, particularly from Mexico, to build highways, light rail, sports facilities, hotels and residences and also staff hotels and restaurants."
Perlich reports that not surprisingly the "new immigrants have disproportionately taken low wage and low skill jobs. Construction workers, assemblers, grounds keepers, janitors, maids, food preparers, and dishwashers are among the most common occupations of Utah's foreign born."
"The impetus for these record immigrations to Utah has been strong economic growth accompanied by structural economic changes that have combined to generate a sustained demand for the types of labor that immigrants have typically provided, notably in the construction and hospitality sectors. In the absence of immigration, Utah would
have experienced labor shortages, bottlenecks, higher costs, and reduction in economic activity."
She concludes her report: "This Second Great Migration Wave, bringing historic numbers of immigrants to Utah and the U.S., from Latin America and Asia rather than Europe, has been catalyzed and sustained by economic globalization, and these forces will continue to transform Utah in ways that we cannot yet imagine." I commend a review of this report for a good review of the history of immigration and its impacts on Utah.
This growth in immigration has occurred over many years as the economy has drawn the immigrants here and as the government has, for the most part, made only token efforts to enforce the outdated laws and/or update the laws to bring them in line with the economic realities. For years our outdated immigration laws have told the immigrants that they cannot come. But our robust economy has screamed across the border to please come because we have work you can do at wages that far exceed what you can make in your native land. The workers have in fact come and, for the most part, have been able to survive in a quasi underground existence.
The inscription on the Statue of Liberty provides the message sent to my ancestors and likely yours too:
Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!
The actions of our economy with its "help wanted signs" have continually spoken those same words more loudly than the murmur of our unenforced outdated immigration laws that said "no trespassing" for the door is closed. So the tired, poor, huddled masses yearning to breathe free have come as our economy pled for them to do. The homeless and tempest-tossed came, not through the golden door, but they came and went to work nonetheless. They had to be creative in doing so to avoid consequences of the outdated unenforced immigration laws. But they learned how the system worked and for many years have filled important segments in our economy, particularly the construction industry within which I work. The real economy's siren is much stronger than the paper fictional economy reflected in the available visas that says our robust economy only needs 5000 unskilled workers annually.
The government has made only token efforts to enforce the outdated immigration laws because the reality is that the vast majority of the immigrants are not criminals but are working and contributing to society trying to improve themselves and the lives of their families.
We desperately need the laws to be changed to meet the economic realities of the U.S. economy and to deal with the societal impacts that have been created by the U.S.
failing to have a workable immigration system for such a long period of time. For example, when the posted speed limits were 55 mph and almost everyone was driving faster than 55 we did not arrest everyone who was speeding. The tickets were given to those who drove faster than the majority and to those who were driving recklessly.
We cannot deport the approximately 20 million undocumented immigrants. Our legal system and law enforcement system could never handle such a burden. The U.S. Immigration and Customs Enforcement (known as ICE) said that in the 12 month period that ended Sept. 30, 2007 it deported 280,000 illegal immigrants to 195 countries. This was the most ever deported. At that rate it will take about 70 years to deport the illegal immigrants --assuming that no new ones came during those 70 years. But since it is likely more than 280,000 entered during 2007 there was in fact an increase in illegals living in the U.S. If we entirely close the border and increased the law enforcement effort (marshals, law enforcement, judges, courts, etc.) by ten times we could deport the undocumented immigrants in about 10 years. That is not even close to reality.
But, more importantly, our economy would be screaming to have the positions filled that would be vacated. And who would fill those positions? Are there millions of unemployed Americans that would rush to be insulators, roofers, concrete workers, drywall workers, agricultural workers, factory workers, hospitality workers, etc.? Obviously not! The positions would need to be filled by immigrants, but the current law only allowing 5000 unskilled workers a year would inhibit the flow of needed workers. It would put our economy in chaos.
Others advocate the approach of enacting stricter laws to try to drive the undocumented immigrants out of the country. The laws are directed against the industries and employers in which the underground economy has developed. Such laws ignore the economic realities that exist. Such laws presume that we have a sufficient labor force that is unemployed which is being deprived of the jobs by the undocumented workers. The assumption has to be that when the illegal immigrants stop performing the work that there is a documented worker standing in the wings ready to fill the position. There is no reality to that assumption. Instead, these laws simply become punitive rather providing solutions to the overall broken immigration system.
The lack of a workable immigration policy over a number of years has also created some very ugly societal issues and a huge humanitarian mess. The illegal immigrants have had millions of children born here who are therefore legal citizens. Millions more children came with them who have been educated in our public schools presumably on a track to become a contributing part of our society. But that is a legal fiction. As they approach graduation they are faced with the reality that they cannot be legally employed. They believe that they are Americans and want to be treated as Americans. But the law does not allow it.
One Hispanic high school student dropout recently told me he wanted to be a policeman. America needs policemen- particularly bilingual Spanish speaking policemen. But the student was correctly told that he cannot be a policeman. In fact, he
is a criminal that the real policemen will try to arrest. He will not be able to have a real job when he graduates. He will have to work underground until he is caught. When he is caught, he will be sent "back" to the country he left as a child that he does not know anything about. As he realizes the desperate position he is in, will he give up hope? Will he keep going to school hoping that something will change so that he has a future? Will he conclude that there is no reason to work hard to graduate from high school? Are our outdated laws increasing the draw of Hispanic gangs? The message we should be sending to all youth is to get a good education, learn to work and be a contributing member of society.
What of the recent graduate of the University of Utah with a degree in education and a teaching certificate. School districts were lining up to hire her because they are desperate for teachers. But this trained bilingual graduate cannot be hired. She came as a youngster with illegal immigrant parents. Even though she has been raised here, has been educated here and wants to be a good citizen she is now being forced to be another in the underground economy because she lacks documents. The irony is that Utah school districts, under an agreement signed between Utah and Mexico, are hiring bilingual teachers from Mexico to meet our teaching shortages. It is time to fix the system!
What a mess we have created by not having a workable system for such a long period of time! Immigration is a very complicated issue. But the millions and millions of illegal immigrants and their millions and millions of children (some of whom are American citizens) have real faces and real lives. As each year passes, the problems are compounded. But solutions need to be found. The vast majority of the illegal immigrants are here to work. All agree that anyone breaking the criminal laws of the land should be punished.
I never discussed this immigration mess with my deceased father, a descendant of immigration farmers, a professional engineer, who grew up in the depression on a farm in Iowa, served in the military and was a quiet member of the greatest generation. He was very frustrated by our welfare system that for years failed to encourage people to work. From the time he was a young boy he worked hard and expected others to work hard. From a poor childhood, through his hard work he became a very successful businessman. But I know he would turn over in his grave knowing that his beloved America was arresting people for WORKING at a construction site or at a factory. He would love to visit his grandson living in New Orleans to see all of the construction activity rebuilding after such a huge disaster as Katrina. It would not be lost on him that New Orleans is being rebuilt by a construction industry consisting largely of hard working Hispanics- many of questionable legal status.
To the uninformed and those who want to put their heads in the sand, the call to "send all 20 million home" because they are illegal has some appeal. Since they broke the law they should be sent home. Sounds like an easy simple solution. But once any reasonable consideration is given to the impacts on the economy, the legal system and the societal impacts on families and children we have welcomed here and from whose fruit of labor we have benefited it becomes apparent that this is a complex problem. Is it any
wonder that immigration policy has floundered? The lack of easy answers makes political solutions difficult. But failing to act only makes matters worse and continues to send ugly messages to the millions of youth already here.
The time has long past to create a system that works. Our free market economy dictates how many jobs that it needs. When there are no jobs, then people will not come. It is imperative to get rid of the underground economy. Wages and benefits will improve. Vision, hope and a future will be given to the youth of the undocumented immigrants. Cleaning up the system will make it much easier to arrest the criminal element rather than trying to arrest 20 million of them. It is time to provide some type of framework for the vast majority of the illegal immigrants to earn some type of citizenship status and officially have a legitimate place in our society and economy.
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News of the Firm
• Scott DeGraffenried, a graduate of the Arizona School of Law, and a member of the Arizona Bar Association, has recently joined the firm. Scott has worked in the construction industry all his life in several capacities. He practiced with a construction law firm in Phoenix before returning to Utah. Scott, who is married and a father of three boys, brings added experience and dimension to our firm. We look forward to having our clients and construction industry associates meet and get better acquainted with Scott.
• Adam T. Mow has been invited to present "Dispute Mitigation and Resolution Under the ConsensusDOCS" at the AGC's 90th Annual Convention in San Diego in March of 2009.
• Robert F. Babcock is chairing this year's Annual Holiday Auction for the Great Salt Lake Council of the Boy Scouts of America. This event benefits the Boy Scout programs including the Scoutreach and Learning for Life projects. These programs serve ethnically and culturally diverse inner city boys and girls and focuses on teaching them how to make ethically responsible decisions.
Kent Scott, Brian Babcock, Jason Robinson, Justin Scott and Cody Wilson have spoken to members of the Associated General Contractors of America in Salt Lake, Ogden and St. George on the topics of Mechanic's Liens, Cost Escalation, Contingency Payment Clauses and Dispute Resolution.
