Davenport: Motion to disqualify judge stalls case; attorney cites illegal meeting

Varlo Davenport | Composite image, St. George News

ST. GEORGE – A motion filed in Washington County Justice Court Friday asks that Judge Ronald L. Read be disqualified from Varlo Davenport’s case because of alleged illegal communication between Read and Utah Assistant Attorney General Michael Carter, who is representing Dixie State University.

Dixie State University students and alumni pose for a photo with Varlo Davenport, back row center, at a rally seeking his reinstatement, St. George, Utah, February 2015 | Photo courtesy of JaNay Maxwell, St. George News
Dixie State University students and alumni pose for a photo with Varlo Davenport, back row center, at a rally seeking his reinstatement, St. George, Utah, February 2015 | Photo courtesy of JaNay Maxwell, St. George News

Davenport was fired from his 15-year tenured position as a theater professor at Dixie State University in December 2014 after a student alleged he assaulted her during a classroom acting exercise.

A faculty board cleared Davenport of any wrongdoing, however, St. George City is pursuing a single Class B misdemeanor assault charge against the former professor.

Davenport is fighting the charge. After numerous delays, another jury trial date was set for March 23-24. The trial date was vacated and a new date had not been set as of Tuesday.

The motion filed by Davenport’s attorney Aaron Prisbrey states that unethical “ex parte” contact between Read and Carter took place without Prisbrey’s presence, knowledge or even proper notification after the fact.

Carter said he hadn’t seen the motion yet but would not comment on the matter because it is part of ongoing litigation.

“I won’t offer any comment on that,” Carter said. “We’ll see how the courts rule on it, that’s what they’re there for.”

Prisbrey found out about the contact in a filing by Carter in mid-March and asked Read about it in a March 21 hearing, according to an affidavit filed in support of the motion to disqualify.

“The Court admitted that the ex parte communication took place, but denied that anything substantive was discussed,” the affidavit states.

However, Prisbrey served the court with a Government Records Access and Management Act, or GRAMA, request March 22 and received a recording of the communication between Carter and Read, which took place in Read’s courtroom Feb. 29, an affidavit filed in support of the motion to disqualify Read states. Prisbrey believes the communication was substantive and violates rules of ethics.

Varlo Davenport and his attorney Aaron Prisbrey outside Justice court, St. George, Utah, Oct. 21, 2015|Photo by Cody Blowers
Varlo Davenport and his attorney Aaron Prisbrey outside Justice court, St. George, Utah, Oct. 21, 2015|Photo by Cody Blowers

“It’s not just the fact they had communication outside of my presence, it’s what they were talking about. They were contemplating not letting us find out who the – potentially the identity of the whistle-blower,” Prisbrey said, “and then when I confronted (Read) about it in court on the 21st of March, he denied it, said it simply was not true, as to the nature of the conversation.”

“What they discussed was, there was information that came in on the whistle-blower website, and they discussed redacting the email address of the sender so I wouldn’t know about it,” Prisbrey said. It was Read’s idea to redact the email address, Prisbrey said.

An email that came into a whistleblower site stated the sender had important information about Davenport and the case against Dixie State, Prisbrey said. There is no right to confidentiality from a legal perspective for a whistleblower hotline, Prisbrey said.

“Anybody that’s been to law school knows that in order to keep something confidential, you have to have a legal privilege that exists,” Prisbrey said. “And what exactly was the legal privilege? It’s not priest-penitent, it’s not conversation with your doctor, it’s not conversation with your spouse, it’s not conversation with your lawyer.”

“That is clearly a violation of the rules, what both of them are doing,” Prisbrey said. “I think it’s a clear violation of the judicial canons and the rules of professional conduct for attorneys.”

Even if it was just a procedural meeting, Prisbrey said he should have been notified.

“What the canons require them to do, is if there was procedural communication he has to immediately notify me of the communication and neither one of them did.”

An ongoing point of contention has been the prosecution’s failure to turn over the investigatory file of Dixie State University Public Safety Director Don Reid, said Prisbrey, who added the file includes evidence that will clear his client.

Read more: Trial approaches for Dixie State professor fired for acting exercise

Prisbrey first requested the documents in August 2015. Finally, on Feb. 19, Read ordered that any relevant information including any emails, letters and correspondence pertaining to the incident which led to Davenport’s termination be turned over to Prisbrey.

Read more: Fired DSU professor continues to seek documents, judge agrees to request

Carter argued that the subpoena was overly broad and should not include information having to do with Davenport’s employment, including a tape of the faculty review which cleared Davenport of wrongdoing and recommended his reinstatement at Dixie State.

Read agreed to review the submitted information privately, or “in camera.” However, when the documents were finally turned over to Prisbrey, there were only five pages and no index or cover sheet was included.

“Everything they’re doing, the appearance is that everything they’re doing, they intended to keep it secret, because when the documents came in they didn’t docket them.”

“The way you submit documents … for in camera review, you submit them with an index and you say ‘here are the documents that I’m delivering,’ describing the general nature so everybody knows what was delivered to the court.” Then the judge looks at the documents and decides what is relevant and what is not, Prisbrey said.

What’s next?

According to Rule 63 of the Utah Rules of Civil Procedure, a judge who has a motion to disqualify directed against him can either grant the motion or certify the motion to a reviewing judge. If the judge grants the motion, the presiding judge of the court or the presiding officer of the Judicial Council will assign another judge.

If Read certifies the motion, another judge will rule on the motion, Geoffrey Fattah, Utah State Courts communication director, said.

The rules state (Read) can choose a fellow justice court judge. It doesn’t have to be a higher-level judge,” Fattah said.

Once a motion to disqualify is filed, the judge cannot take further action in the case until the motion is decided.

There is no time limit on this matter, however, any further action in the case would stop until this motion is addressed,” Fattah said.

Multiple calls to the Washington County Justice Court requesting comment from Read were not returned.

According to the Utah Courts website, Read was appointed to the Washington County Justice Court bench in September 2014. He graduated from Southern Utah State College in 1981 and from the University of Utah Law School in 1990.

Read served as a law clerk for the United States District Court of Boise, Idaho, after which he became an associate and shareholder with the law firm of Hughes & Read. He worked as an assistant city attorney for the City of St. George and then became a co-founder of Read & Wright law firm.

Email: japplegate@stgnews.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2016, all rights reserved.

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9 Comments

  • ladybugavenger April 6, 2016 at 12:30 pm

    If the judge and the prosecutor play golf together…you’re screwed.

  • Rainbow Dash April 6, 2016 at 3:08 pm

    Utah: The only place on God’s green Earth where giving people a good education gets you a criminal charge but baking your baby in a car gets you a #fundraiser.

    • ladybugavenger April 6, 2016 at 7:07 pm

      Amen!

    • mesaman April 6, 2016 at 8:19 pm

      How sad it is that you are correct in your conclusion. The faculty senate ruled on one of their peers, clearing his name. The president, detached, physically and mentally from the classroom, and surrounded by yes-men can terminate a man of good standing without fairness in the firing process.

      • RealMcCoy April 7, 2016 at 10:51 am

        Sounds like they got their training from the Oregon Police dept.- shoot first, and in the back so they won’t see it coming.

        • .... April 8, 2016 at 1:04 pm

          Oh you mean the same place that you learned to spell the word ( have )

    • RealMcCoy April 7, 2016 at 10:54 am

      I agree, but you left out the part where there were also no criminal charges of neglect or manslaughter. So you can cook your baby in a car, but if your car rolls off a hill into a ravine, you’re getting a road violation ticket.

      • .... April 8, 2016 at 1:02 pm

        Hey ! instead of being here posting your useless drivel you should practice learning how to spell the word ( have ) stupid …

  • .... April 7, 2016 at 2:13 am

    Oh heck ! He’s guilty. take him out back and shoot him. and post more traffic accident articles.

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