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/Opinions & Legal Research Tools /AG
Opinions/1994
| 94-009 |
ISSUE: Whether
the judicial or administrative order regarding the "determination
of establishment of a marriage" must be made and entered
before one year following the termination of the relationship
if it is
to have any effect.
ANSWER: Based upon both the plain language of the statute and the
legislative intent and purpose that the one year time limitation
for the "determination or establishment" of a marriage
means that the court or administrative process for finding that
a marriage relationship exists must be begun within
one year after the relationship is ended, not that the order establishing the
relationship needs to be entered within one year.
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94-008
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ISSUE:
Does the responsibility for auditing the
Commission on Criminal and Juvenile Justice rest with the Commission
or with the Utah State Auditor.
ANSWER: According
to the statute enumerating the duties of the Commission on Criminal
and Juvenile Justice, U.C.A. 63-25-4(9)(b) (1994)*,
it is the opinion of this office that the commission, and not the
state auditor, is responsible to perform the annual audits required
by the statute.
*
renumbered to U.C.A. 63-25a-104 by L. 1996, ch. 242, § 16; 1998, ch. 102, § 3; 1999,
ch. 270, § 8; 1999, ch. 346, § 1; 2001, ch. 220, § 2.
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94-007
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ISSUES:
There were several questions (Only three will be addressed in this
summary.) regarding how the provisions of U.C.A. 76-7-305 requiring
a 24 hour waiting period and informed consent are implemented:
•
Will a telephone call 24 hours in advance to a doctor be considered
sufficient to fulfill the requirements for the 24 hour waiting period?
•
How can the doctor be assured that the person calling is in fact
the person who will be the patient?
•
Would the informed consent law be satisfied if a clinic has a nurse
or counselor answer inquiries by prospective patients and give information
pursuant to the statute?
ANSWERS:
•
Clinics often required the woman to come in for a personal visit
at least 24 hours prior to the abortion to enable the doctor to examine
the woman for length of pregnancy and to determine the type of abortion
procedure to perform.
•
The only mechanism inherent in the statute for helping the doctor
ensure the identity of the patient is the statutory requirement that "the
pregnant woman certif[y] in writing, prior to the abortion, that
the information required to be provided [under the applicable sections]
was provided."(Section 305(1)(e). The doctor, not the patient,
is subject to criminal sanctions for performing the abortion if he
or she fails to obtain this certification or if he does not believe,
in his or her best judgment, that the pregnant woman's certification
is true. Sections 303, 305(1), 314(1)(a)
•
Nurses may give the information. Subsection 305(1)(a). The term "counselor" does
not appear among the list of professionals who may give the subsection
305(1)(c) information. However, the following terms do expressly
appear among the 305(1)(c) list: psychologist, marriage and family
therapist, clinical social worker, and certified social worker. If
the "counselor" in your question happens to fit in one
of these express categories, he or she could give the subsection
305(1)(c) information if authorized to do so by the referring or
attending physician.
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94-006
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ISSUE:
Under what circumstances may the Great Seal of the State of Utah
be reproduced and are there any restrictions on its use?
ANSWER: Reproductions of the Great Seal may appear in a number of
different contexts as approved by the Lieutenant Governor or legislature.
There are no specific parameters for displaying such reproductions
and no specific enforcement mechanisms for alleged improper displays.
The Attorney General would recommend a policy that any use or reproduction
of the Great Seal be reviewed and approved by the Lieutenant Governor.
Unauthorized displays should be referred to the Attorney General
for possible legal action.
The State Constitution and Code provide for a number of specific
uses of the Great Seal. It is to be used on:
(1) certificates
issued by the Division of Corporations and Commercial Code, Utah
Code Ann, § 16-6-104 (1992);
(2) certificates showing when a session or special session of
the legislature adjourned sine die, Utah Const. art. VI, § 16;
(3) certificates showing when law was officially published, Utah Const. art
VI, § 16;
(4) certifying all grants and commissions, Utah Const. art VII, § 19;
(5) the lieutenant governor s statement accompanying Voter Information Pamphlets,
Utah Code Ann. § 20-11a-8 (Supp. 1993); and
(6) certificates of ratification of Constitutional amendments, Utah Code
Ann. § 20-
16-11 (1991). The Great Seal routinely appears on any executive order, as
authentication of the order made by the Governor. Thus, the Great Seal is
essentially an authenticating
device.
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94-003
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ISSUE:
Is placement of a developmentally disabled/mentally retarded person
in the "least restrictive and most enabling environment" a
constitutionally protected liberty interest? If so, is placement
in an ICF/MR a violation of that standard in every case, or is
placement in an ICF/MR still appropriate when that is the preferred
choice of the person or their legal representative?
ANSWER: Placement of a developmentally disabled/mentally retarded
person in the "least restrictive and most enabling environment" is
not a constitutionally protected liberty interest. Therefore, placement
in an ICF/MR is appropriate when such placement is consistent with
professional judgment and is the preferred choice of the Medicaid
recipient or their legal representative.
ISSUE: If the answer to question 1 presents a conflict between federal
Medicaid law and state or federal constitutional law, what options
are available to harmonize the conflict?
ANSWER: Federal and state regulations establish the appropriate procedures
and considerations to govern placement of qualified individuals in
either an ICF/MR or a home and community based setting.
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