FAMILY SUES UTAH STATE; STUDENTS SENTENCED

Tim Burke, Manley Burke, tburke@manleyburke.com

As reported in the January 2009 issue of Fraternal Law, the death of Michael Starks at Utah State University led to criminal charges being filed against two fraternities and members of both of those chapters.

While those charges have been resolved, now the University must defend a lawsuit recently filed against it and the State of Utah by the Starks family.

The charges against the individual Greek members varied but included hazing, attempted hazing, unlawful supplying of alcohol to minors and obstructing justice. The charges were ultimately dismissed against seven of the thirteen students individually charged.  Another had the charges held in abeyance for one year while she is on probation and completes 50 hours of community service.  Her community service includes speaking to middle schools, high schools and colleges in Utah emphasizing the dangers of underage and binge drinking.

Others did not get off so lightly.  Sentences for those convicted included 365 days in prison, with all but 30 days suspended, a $1,000 fine, three years’ probation and 200 hours of community service, 180 days in prison, with all but either 8 or 14 days suspended, and probation ranging from six months to one year.  The terms of the probation also vary, but typically include public service of up to 200 hours, drug and alcohol counseling, prohibition against consuming alcohol or going to bars, parties or liquor stores, having to submit to random search and seizure and not belonging to a fraternity or sorority.  Some were also required to write a letter to the family of Michael Starks.

While the charges against the individual members were all misdemeanors, the Utah State University Chapters of Sigma Nu and Chi Omega were both charged with felony hazing.  The national fraternities, who had been effectively exonerated by the County Attorney, moved quickly after Michael Starks’ death to close their respective chapters.  With the chapters out of existence, the attorneys for both ultimately filed motions to dismiss the charges against the chapters.  Judge Thomas Willmore of the First Judicial District Court of Cache County, heard these motions.  In the case against the Chi Omega Chapter, the Judge found that the chapter was an unincorporated association whose operations were suspended and then had its charter revoked and the chapter closed.  With the charter revoked, the Judge found the chapter “ceased to exist.  It has no assets and no ability to pay fines, fees or restitution.  There is simply no entity in existence against which probationary or regulatory action of any type can be taken.”

The Judge went on to state that a chapter that had lost its charter and ceased to operate was the equivalent of the death of a criminal defendant.  In the case of a death of a defendant, the prosecution ceases.

In the Sigma Nu case, Judge Willmore put it simply:  “As a matter of law, the State cannot maintain a criminal prosecution against a dissolved unincorporated association; therefore, the [charge] is dismissed.”

While at first glance it may appear that the chapters got off lightly, it should be kept in mind that fraternity chapters that had existed successfully at Utah State for decades are now gone and in all likelihood, under these circumstances, will never return.  No students will have the opportunity to be a member of either organizations on the Utah State campus, nor will the alums of those chapters have a home to visit when returning to school.  Worse still, a young man is dead.  Those who were involved will have to live with that for the rest of their lives.

On July 21, 2009, the Salt Lake City Tribune reported in an article that:

“The Starks family has reached an out-of-court civil settlement with Sigma Nu and Chi Omega.  The May 5 settlement bars either side from discussing its terms and circumstances, said the Starks’ lawyer….”

While the criminal prosecutions are now complete and the civil claims against the fraternities are resolved, the matter is not ended.  On August 10, 2009, the Starks family filed suit against Utah State University and the State of Utah.  The suit claims that the University was negligent in not adequately and appropriately supervising and disciplining the fraternity and that as a result of that negligence, Michael Starks died.  The suit also claims that the University failed to fulfill its duty to warn incoming students of the conduct, particularly the illegal use of alcohol and hazing, among Greek groups.

The Salt Lake Tribune in an August 13, 2009 article quotes the attorney for the Starks family as explaining the lawsuit saying, “if the University had done its job and monitored this fraternity and used the power it has to discipline the fraternity and its members, it probably would not have existed when Michael Starks got to USU.”  The suit alleges that the men’s fraternity had a long history of the abuse of alcohol and describes in detail assorted alcohol-related conduct which the suit claims was so widespread that it should have been known by the University.  The family’s attorney went on to tell the Salt Lake Tribune that “they [the University] turned a blind eye.”  Whether the Starks can prove the allegations in their complaint remains to be seen, but in the absence of an agreement between the parties, this litigation could continue for years.

Now, as a new academic year begins, the death of Michael Starks should serve as a sad reminder of the consequences that can flow from acts of hazing, particularly when they are compounded by the illegal use of alcohol.  While it has never been suggested that anyone at either chapter or any of the thirteen individuals who were charged ever intended for real physical harm or death to occur to Michael Starks, it did.

If there is anything at all to be gained from Starks’ death, it is remembering and learning from it.