Dale A. Kimball

Dale Albert Kimball^[1] (born November 28, 1939)^[2] was confirmed as a judge for United States District Court for the District of Utah by the United States Senate on October 21, 1997.^[3] Judge Kimball is married. He and his wife have six children, twenty-four grandchildren, and one great-grandchild.

Early life and education

Kimball grew up on a dairy farm in Draper, Utah and worked in the fields where his family grew alfalfa, sugar beets, and grain. He continued to work on the family farm throughout his schooling, including his time in law school. His family sold their farm to the Catholic Diocese in 1996 and it is now the site of the Skaggs Catholic Center, which houses Juan Diego High School.

Kimball first became interested in law while taking a commercial law class from E.L. Crawford at Jordan High School.^[4] Kimball graduated magna cum laude from Brigham Young University with a BS in Political Science. In 1967, he received his Juris Doctor from the University of Utah College of Law, graduating Order of the Coif and second in his class.^[3] While attending law school, Kimball was a member of the Phi Kappa Phi Fraternity and was the Case Note Editor of the Utah Law Review.

Legal career

After graduating from law school, Kimball began his legal practice at Van Cott, Bagley, Cornwall & McCarthy in Salt Lake City, Utah, where Kimball maintained a full-time general practice until 1974. In 1974, Kimball became a full-time law professor at BYU's J. Reuben Clark Law School. In his second year as a full-time professor, Kimball also co-founded the law firm formerly known as Kimball, Parr, Waddoups, Brown & Gee. The firm is now known as Parr, Brown, Gee & Loveless. Kimball continued to teach part-time at BYU from 1976 to 1980. From 1975 until his appointment as a United States District Judge in 1997, Kimball maintained a full-time legal practice, primarily in commercial litigation.

Judicial career

On September 4, 1997, President Bill Clinton nominated Kimball as a United States District Judge for the District of Utah. Kimball's nomination was confirmed by the United States Senate on October 21, 1997. On November 24, 1997, Kimball was sworn in as a United States District Judge. Kimball replaced the Honorable David K. Winder, who took senior status in June 1997. After twelve years as a full-time district court judge, Kimball took senior status on November 30, 2009.^[5] However, Kimball maintained a full case load until November 30, 2010. Kimball maintains a 60 percent case load and has resumed teaching part-time at BYU's J. Reuben Clark Law School.

During his time on the bench, Kimball has presided over many notable cases, such as the Brian David Mitchell criminal trial, case no. 2:08cr125DAK,^[6] and the second Main Street Plaza case, case no. 2:03cv688DAK.^[7] In the case of Southern Utah Wilderness Alliance v. Norton, Case No. 2:99cv852DAK,^[8] Judge Kimball's decision was reversed by the Tenth Circuit, but the United States Supreme Court then reversed the Tenth Circuit and affirmed Judge Kimball (9-0), Norton v SUWA, 542 U.S. 55 (2004). More than 800 of his memorandum decisions appear on Westlaw.

In 1999, Kimball sat by designation with the Tenth Circuit of Appeals, authoring two published opinions and two unpublished opinions: Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714 (10th Cir, 2000); and United States v. Moore, 198 F.3d 793 (10th Cir. 1999); Hutchinson v. Pfeil, 201 F.3d 448 (10th Cir. 1999) (unpublished); Standard v. Union Pacific Railroad Co., 198 F.3d 258 (10th Cir. 1999) (unpublished).

In May 2009, to help with the congested dockets of a neighboring district, Kimball sat by designation in the United States District Court for the District of Idaho.

On May 19, 2014. Judge Dale A. Kimball ruled in favor of adoption rights for a same sex couple in Utah. Much of the discussion focuses on an adoption cases as an example. In the case, Matthew Barraza and Tony Milner got married in Washington DC in 2010. They adopted a son in 2009, but under Utah law only one of the men could be the adoptive parent. In this case Matthew was recorded as the adoptive parent. The couple got a Utah marriage license and were married again on December 20, 2013. On December 26 they began legal proceedings so that Tony could also adopt their son. A hearing was scheduled for January 10. On January 9 the court decided to stay the adoption proceedings. A hearing was held on that subject on January 29 with the Utah Attorney General filing a brief. On March 26 state Judge Andrew Stone rejected the AG's arguments and ordered that the adoption should go forward. The two fathers duly went to the state Office of Vital Records and showed them the only two required documents: the decree of adoption and the report of adoption. Nevertheless, the registrar also asked for their marriage certificate. The office of the Attorney General instructed the registrar not to issue the new birth certificate. On April 7 the state Department of Health petitioned the Utah Supreme Court for a court order relieving the state of following the orders of federal Judge Kimball. A month later Judge Kimball issued an order for the AG to show why he should not be held in contempt. On May 16 the Utah Supreme Court issued the requested stay.

Judge Kimball pointed out that the state had originally moved this question from state courts to the federal courts and that its attempt to move it to the Utah Supreme Court "appears to be a delaying tactic." Citing Windsor, Lawrence and Strauss (Prop 8) the Judge ruled that the state must afford all the "protections, benefits and responsibilities" of marriage to those who married during that 17-day window, saying the state's current position violates the due process clause of the 14th amendment. He issued a 21-day temporary stay to give the state time to request a stay pending appeal.

Community and professional service

Kimball is a member of The Church of Jesus Christ of Latter-day Saints and has served in many leadership positions within the church, including bishop, high councilor, stake president, and Regional representative of the Twelve.^[9]

Former activities

• Chairman of Utah State Bar Judicial Performance Evaluation Committee
• Chairman of Utah State Bar Ethics and Discipline Committee
• Chairman of Utah State Bar Committee on the Unauthorized Practice of Law
• Counselor to the Inn of the American Inn of Court I
• Member of Utah Federal District Court, Mediation/Arbitration Panels
• Chairman of Pioneer Theater Board
• Member of Deseret News Publishing Company Board of Directors and Member of
• Executive Committee
• Member of Alta View Hospital Board of Governors
• Member of Jordan Education Foundation Board
• Trustee of University of Utah College of Law Alumni Board
• Member of Board of Salt Lake Chapter of J. Reuben Clark Law Society
• Member of Judicial Conference Committee on Administration of the Bankruptcy System
• Member of Tenth Circuit Judicial Conference

Current activities

• Fellow of the American Bar Foundation
• Master of the Bench for the American Inn of Court I
• Member of the Board of Federal Bar Association, Salt Lake Chapter

Awards and publications

Judge Kimball graduated second in his class at the University of Utah College of Law and was elected to the Order of the Coif.^[3] Order of the Coif is an honorary scholastic society consisting of members graduating in the top ten percent of their class. In 1996, Kimball was honored by the Utah State Bar as the "Distinguished Lawyer of the Year".^[3] In 2010, Kimball was honored by the Federal Bar Association, Salt Lake Chapter as the "Judge of the Year".

Kimball has authored numerous legal publications over the years. For a partial listing see http://www.utd/uscourts.gov/judges/kimball.html.

Selected cases

USA V. Brian David Mitchell and Wanda Eileen Barzee, Case No. 2:08CR125DAK

After Defendant Brian David Mitchell was declared incompetent to stand trial in Utah state court for the alleged kidnapping of Elizabeth Smart, he and co-defendant Wanda Barzee were indicted by a federal grand jury for kidnapping and unlawful transportation of a minor. Because Mitchell’s competency to stand trial was at issue, the court sent Mitchell to a federal medical facility for a mental evaluation. On October 1, 2009, and December 1 through 11, 2009, the court held an evidentiary hearing to determine whether Mitchell was competent to stand trial. The court heard testimony from several psychologists and psychiatrist as well as Elizabeth Smart and many other witnesses who had interactions with Mitchell throughout his life. On March 1, 2010, the court issued a memorandum decision and order finding Mitchell competent to stand trial. The court then scheduled trial for November 1, 2010. Because of extensive pretrial publicity of the case, Mitchell filed a motion to transfer venue to another district. The court denied the motion after reviewing juror questionnaires filled out by hundreds of potential jurors. After a five-week trial that proceeded on November 1, 2010, and continued until December 10, 2010, a jury found Mitchell guilty of both offenses. The trial focused mainly on Mitchell’s insanity defense and required the jury to determine whether Mitchell was legally insane at the time of the offense. Elizabeth Smart again testified as did many of the same witnesses from the prior competency hearing. The trial also raised several First Amendment media access issues that required rulings from the court throughout the proceedings. On May 25, 2011, Judge Kimball sentenced Mitchell to life in prison under the federal sentencing guidelines and the sentencing factors found in 18 U.S.C. § 3553a. Mitchell decided not to appeal.^[6]

After being declared competent to stand trial as a result of forced medication ordered by the state court,^[10] Wanda Barzee entered into a plea agreement with the federal government. Judge Kimball sentenced Barzee on November 17, 2009, to 15 years in prison. Portions of interviews with Barzee were entered into evidence during Mitchell’s competency hearing and Barzee testified in person at Mitchell’s trial.

Utah Gospel Mission v. Salt Lake City Corp., Case No. 2:03cv688DAK

The Main Street II lawsuit was the second round of a long-standing and divisive dispute pertaining to Salt Lake City’s sale of a block of Main Street to the LDS Church. The first round of the dispute, which was handled by another judge in this district, involved the City’s sale of Main Street Plaza and the City’s reservation of a pedestrian easement through the Plaza, while allowing the LDS Church to control behavior and limit First Amendment activity on the Plaza. On appeal, the Tenth Circuit Court of Appeals ultimately determined that the easement itself was a public forum for First Amendment purposes and that the City and Church could not prohibit protected speech on the easement. See First Unitarian Church v. Salt Lake City Corp., 308 F.3d 114 (10 Cir. 2002) (“Main Street I”).

The Main Street II litigation challenged the constitutionality of the City’s subsequent sale of the pedestrian easement to the LDS Church. Through the sale, the LDS Church secured the right to prohibit First Amendment activity on the Main Street Plaza, and, in exchange, the City obtained 2.125 acres of LDS Church-owned property in the Glendale neighborhood of the City, payment of half the attorneys’ fees awarded against the City in the previous litigation, and $5 million in cash and land from the Alliance for Unity. In total, the City obtained over $5.375 million in land and cash in exchange for the easement, which had been valued at $500,000.

In the lawsuit, Plaintiffs argued that the Mayor’s decision to sell the easement was brought about by the undue influence of the LDS Church. The City and the LDS Church, on the other hand, argued that the Mayor proposed a compromise that, among other things, would bring many secular benefits to the City, including obtaining land and cash valued at over $5.375 million, putting to rest the legal battles between the City and the LDS Church, and helping to heal the wounds of a City divided along religious lines. The specific issues in this case were whether the sale of the easement (1) violated Plaintiffs’ rights to freedom of expression and assembly under the First and Fourteenth Amendments to the United States Constitution, and (2) constituted an improper establishment of religion under the First and Fourteenth Amendments to the United States Constitution and Article I, Section 4 of the Utah Constitution.

The court dismissed both claims, finding that the property at issue had become an entirely private, Church-owned Plaza devoid of any government property interests that could create a public forum. The court determined that the free speech guarantees of the First and Fourteenth Amendments did not apply to the Plaza or to the now-extinguished easement. The court also found that Plaintiffs had not stated a claim under the Establishment Clause, finding that the sale of the easement to the LDS Church, even assuming that it was partially motivated by the religious purposes of those involved, served a reasonable secular purpose. Given the facts of the case, the court held that Plaintiffs had failed to allege that the City’s actions had the principle or primary effect of advancing or endorsing religion because a reasonable observer would not view the decision to sell the easement as communicating a message of government endorsement of the LDS Church. In addition, the court determined that Plaintiffs had failed to adequately allege that the sale of the easement created excessive entanglement between the City and the LDS Church. If anything, the court found, the sale actually eliminated the likelihood of excessive entanglement. Finally, the court held that when the City merely elected one of two choices presented by the Tenth Circuit of Appeals in Main Street I, it could hardly be said that the reason for the City’s decision was to promote or endorse the LDS Church.^[7]

The Tenth Circuit Court of Appeals subsequently affirmed Judge Kimball’s decision. See Utah Gospel Mission v. Salt Lake City Corp., 425 F3d 1249 (10 Cir. 2005).

External links

• Judge Dale A. Kimball's professional resume
• Judicial Profile: Dale Kimball

References