By Carol Funk
Originally published in Utah Bar Journal, Jan/Feb 2024
Over the past several years, the Utah Supreme Court has painstakingly addressed questions of state constitutional law by analyzing the original public meaning of the constitutional language at issue. The court has also emphasized that provisions in the Utah Constitution do not necessarily provide the same protections as similarly worded provisions in the federal constitution. In some cases, the court has held that protections afforded under state constitutional law are broader than protections afforded under federal constitutional law. And parties are taking note.
The court’s caseload has become increasingly comprised of cases raising novel questions of state constitutional law, and this year is no exception. Parties are examining binding case law and assessing whether the principles announced therein were adopted following a rigorous constitutional analysis. Where rigorous analysis appears to be lacking, parties are challenging the case law and asking the Utah Supreme Court to construe the constitutional language in accordance with its original public meaning.
The decisions to be issued by the Utah Supreme Court this year will, in many cases, prove highly consequential. This is due in part to the numerous cases raising questions of state constitutional law. But many other cases on the court’s docket will also result in opinions with significant ramifications. That is particularly true with respect to criminal law, as parties to criminal proceedings frequently encounter questions of substantial import and regularly raise those questions before the Utah Supreme Court.
Providing Visibility into the Cases and Issues Under Review in the Utah Supreme Court
It is critically important for members of the Utah Bar to be informed of cases and issues under review in the Utah Supreme Court. Attorneys can more effectively raise and preserve errors, craft arguments, make decisions, and assess the strength or weakness of a claim or charge if they are aware of changes in the law that may be forthcoming. This article thus provides visibility into the cases and issues currently in the pipeline at the Utah Supreme Court.
This article was compiled based on matters listed as pending in the Utah Supreme Court in late October 2023. It therefore captures the cases and issues that will be addressed in opinions issued by the Utah Supreme Court in 2024 and into 2025.
The article does not, however, highlight every case and issue pending on the Utah Supreme Court’s docket. But that information is important. For those interested in accessing it, a list of all matters pending in the Utah Supreme Court as of late October 2023 is provided at https://rqn.com/appellate-practice/utsupctopen-cases. (Judicial and attorney discipline proceedings are not included.) The cases are identified by title, case number, and subject matter (e.g., civil, criminal, capital felony, and etc.).
There are also links provided to at least one substantive document filed in each case. Accordingly, the petition, retention request, briefing, and/or other substantive document(s) filed in each case, including briefing in League of Women Voters of Utah v. Utah State Legislature and State v. Planned Parenthood Association of Utah, may be found at the above-noted address. A review of those documents will provide insight into the issues and arguments that have been or are likely to be raised in each proceeding.
Click here to view the full list of Utah Supreme Court Open Cases
Utah Supreme Court 2024: Specific Issues
Following are summaries of many of the significant cases and issues currently on the Utah Supreme Court’s docket, as well as information regarding the status of each case.
Administrative Proceedings
Effect of the COVID-19 Pandemic on Property Taxes.
Larry H. Miller Theaters, Inc. v. Utah State Tax Commission, No. 20220345, on Review of Administrative Decision.
The Utah Supreme Court retained jurisdiction over this proceeding in which Larry H. Miller Theaters, Inc., along with several other entities, challenges the Utah State Tax Commission’s construction of Utah Code Section 59-2-1004.6.
Section 1004.6 addresses tax relief for a decrease in fair market value due to access interruption. Petitioners claim the COVID-19 pandemic created access interruption to their properties. The Tax Commission disagrees, construing access interruption to include only situations in which physical access to taxpayer property is impeded. Petitioners urge the Utah Supreme Court to hold the COVID-19 pandemic resulted in access interruption to their properties for purposes of section 1004.6.
Oral argument was held in September 2023. At the time this article was submitted for publication, no decision had yet been issued.
Meaning of the Utah Constitution’s Exclusive Charitable Use Property Tax Exemption.
Sports Medicine Research & Testing Laboratory v. Utah State Tax Commission, No. 20220786, on Review of Administrative Decision.
The Utah Supreme Court retained jurisdiction over this proceeding, which centers on the exclusive charitable use property tax exemption in the Utah Constitution. Under Article XIII, Section 3, property is not taxable if owned by a nonprofit entity and used exclusively for charitable purposes.
In prior cases, the Utah Supreme Court has waffled a bit on what exclusive charitable use means. Sports Medicine Research & Testing Laboratory (SMRTL) has asked the Utah Supreme Court to clarify its murky case law and to conclude SMRTL qualifies for the exemption. As part of that clarification, SMRTL requests that the Utah Supreme Court recognize the federal tax concept of substantially related business activity as a guiding principle in the state constitutional analysis.
SMRTL has also asked that, if necessary, the Utah Supreme Court reconsider its case law and engage in an original public meaning analysis of the exclusive charitable use provision. SMRTL claims that when the provision was enacted, the people of Utah would have understood it to incorporate the concept of substantially related business activity.
The briefing is likely to be completed in early 2024.
Civil Proceedings
Lawmaking by Initiative and the Justiciability (or NonJusticiability) of Partisan Gerrymandering.
League of Women Voters of Utah v. Utah State Legislature, No. 20220991, on Interlocutory Appeal.
The Utah Supreme Court granted a request by the Utah Legislature and other defendants to appeal from an order largely denying their motion to dismiss. The defendants had moved to dismiss claims relating to Senate Bill 200. The Utah Legislature promptly passed SB 200 after Utah voters approved Proposition 4, which provided for an independent redistricting commission with the purpose of limiting partisan gerrymandering.
A mix of organizational and individual plaintiffs filed suit against the Utah Legislature and others, alleging enactment of SB 200 and subsequent partisan gerrymandering violated their constitutional rights. Defendants moved to dismiss, asserting the claims present nonjusticiable political questions and, in the alternative, partisan gerrymandering does not violate the Utah Constitution. The district court concluded the claims were justiciable and declined to dismiss claims based on the Free Elections Clause, Equal Protection Clause, Free Speech and Association Clause, and the Right to Vote Clause. The district court did, however, dismiss claims based on the Inherent Political Powers and Initiative Clauses.
The Utah Supreme Court called for supplemental briefing to aid its consideration of the issues. The court asked the parties to address questions that will arise if the court concludes the constitutional right of the people of Utah to alter or reform their government is a fundamental right and the people of Utah exercised that right when they approved Proposition 4. The request for supplemental briefing focused on what type of scrutiny, if any, might apply when assessing whether that constitutional right has been violated.
Oral argument was held in July 2023. At the time this article was submitted for publication, no decision had yet been issued.
Legality of the Utah Health Care Malpractice Act’s Statute of Repose and the Meaning of the Open Courts Clause.
Bingham v. Gourley, No. 20230436, on Direct Appeal.
The Utah Supreme Court agreed to retain jurisdiction over this appeal, which challenges the constitutionality of the Utah Health Care Malpractice Act’s four-year statute of repose. Bingham asserts the statute of repose violates the Utah Constitution’s Open Courts and Uniform Operation of Law Clauses, as well as the federal constitution’s Equal Protection Clause.
At the time this article was submitted for publication, Gourley had not yet filed their opposing brief. It is therefore unclear whether they will ask the Utah Supreme Court to reconsider its construction of the Open Courts Clause. But it is highly likely Gourley will make that request, as the Utah Supreme Court’s approach to the Open Courts Clause has been a contentious topic in the court’s jurisprudence.
Presently, the Open Courts Clause has been construed as providing substantive protections. Over the past three decades, however, multiple dissenting justices have asserted the clause provides only procedural protection. Most of those dissenting justices have since retired, but one – Chief Justice Durrant – is still on the bench. In addition, the last time the Utah Supreme Court addressed the Open Courts Clause, Justice Pearce indicated he was open to revisiting its construction. This case thus presents an opportunity for the court, as currently constituted, to address whether the Open Courts Clause will continue to be interpreted as having substantive application.
Briefing in this matter is likely to be completed in early 2024.
Justiciability (or Non-Justiciability) of Claims That Utah’s Policy Toward Fossil Fuel Development Violates State Constitutional Rights.
Roussel v. State, No. 2023022, on Direct Appeal.
The Utah Supreme Court retained jurisdiction over this appeal, which centers on claims that the State’s policy regarding fossil fuel development violates the constitutional rights of Utah’s children. The suit was filed by several minors, through their guardians, against multiple defendants, including the State of Utah, Governor Cox, and various offices of the Department of Natural Resources.
The plaintiffs claim they have been and continue to be harmed by air pollution and climate changes caused and exacerbated by the defendants’ statutory policy and actions furthering fossil fuel development in Utah. The plaintiffs seek a declaratory judgment that the State’s policy regarding fossil fuel development and the defendants’ support thereof violates the plaintiffs’ substantive due process rights to life and liberty under Article 1, Sections 1 and 7, of the Utah Constitution. The district court granted the defendants’ motion to dismiss, ruling the plaintiffs’ claims present a nonjusticiable political question, declaratory relief would provide no redress, and Utah’s due process protections do not apply to fossil fuel policy.
Briefing in this matter is likely to be completed in early 2024.
Exercising Jurisdiction Over Alleged Co-Conspirators.
Nelson v. Phillips, No. 2023025, on Interlocutory Appeal.
Nelson’s wife (Wife) died in 2021. The following year Nelson filed suit against multiple defendants. He alleged Wife’s death had been ruled a suicide and there was no suggestion by authorities that her death was caused by anything other than self-inflicted injuries. Nelson further alleged the defendants had nonetheless engaged in widespread efforts to convince Nelson’s community that he had contributed to or caused Wife’s death.
In his suit, Nelson alleged multiple claims against the defendants, including defamation, invasion of privacy, intentional infliction of emotional distress, and conspiracy. The conspiracy claim alleged a concerted effort to communicate to individuals in Nelson’s community and on social media that Nelson had committed domestic violence against Wife and was responsible for her death.
The defendants moved to dismiss for lack of jurisdiction, but their motions were denied. The district court concluded the allegations provided a sufficient basis to exercise personal jurisdiction over the defendants. Nelson had alleged the defendants were each part of a conspiracy, some of the co-conspirators’ conduct occurred in and was directed at the State of Utah, and the defendants could have reasonably anticipated that their co-conspirators’ actions would connect the conspiracy to Utah.
At the time this article was submitted for publication, the briefing in this matter was scheduled to be completed in December 2023.
Governmental Entities’ Obligations to Allow Access to Public Records.
Gordon v. Nostrom, No. 20230187, on Direct Appeal.
The Utah Supreme Court retained jurisdiction over this appeal in which Gordon asserts he was erroneously denied access to public records. Gordon claims the City of Herriman was required to allow him to review its records in person, rather than insisting he submit a written request for records under Utah’s Government Records Access and Management Act (GRAMA). The city had informed Gordon that it would charge a substantial fee to provide the records pursuant to a GRAMA request.
The district court ruled Gordon was required to submit his request under GRAMA and Gordon had failed to make such a request or had failed to exhaust his administrative remedies with respect to that request. Gordon appealed, asserting a distinction between his request to inspect records and a request to obtain copies of records. Gordon argues a governmental entity cannot categorically deny access to inspect records and require instead a written request for copies of records under GRAMA along with payment of an attendant fee. In support of his claim, Gordon asserts a constitutional right to reasonable and easy access to public records.
Oral argument was held in November 2023. At the time this article was submitted for publication, no decision had yet been issued.
Attorney Fee Awards Under GRAMA.
McKitrick v. Gibson, No. 20220738, on Direct Appeal.
A second case involving GRAMA is also on the Utah Supreme Court’s docket. (A third case, which centered on the efforts governmental entities must undertake when responding to records requests under GRAMA and the scope of judicial review when reviewing those efforts, was also on the court’s docket. But that case was voluntarily dismissed in November 2023.)
McKitrick made a request for records of the Ogden Police Department. Her request was initially denied. But on review, the Ogden Review Board concluded the request should be granted.
The subject of the records request (Gibson) then filed an action to bar release of the records. Ogden City sided with Gibson. McKitrick moved to dismiss the proceeding for lack of standing. The district court denied McKitrick’s motion, but the Utah Supreme Court reversed, holding Gibson did not have standing to seek judicial review of the Ogden Review Board’s decision.
McKitrick then requested attorney fees. Utah Code Section 63G-2-802 provides that “[a] district court may assess … reasonable attorney fees and costs reasonably incurred in connection with a judicial appeal to determine whether a requester is entitled to access to records under a records request, if the requester substantially prevails.” Utah Code Ann. § 63G-2-802(2)(a).
The district court denied McKitrick’s request for fees. The court construed Section 63G-2-802 as inapplicable because the appeal at issue involved a third party’s challenge of the review board’s decision, rather than an appeal of the decision by McKitrick or Ogden City. McKitrick appealed, and the Utah Supreme Court agreed to retain jurisdiction over the matter.
Oral argument was held in November 2023. At the time this article was submitted for publication, no decision had yet been issued.
Inspection of Adoption Records.
In re adoption of M.A., No. 20221097, on Direct Appeal.
This appeal centers on Utah Code Section 78B-6-141, which provides a “good cause” exception to the background rule that adoption records are generally sealed. Under Section 78B-6-141, “[a]n adoption document and any other documents filed in connection” therewith “are sealed.” Utah Code Ann. § 78B-6-141(2). However, those documents may be opened for inspection and copying “upon order of the court …, after good cause has been shown.” Id. § 78B-6-141(3)(c).
M.A. petitioned for a court order allowing her access to her adoption records so she could obtain health, genetic, or social information. As good cause, M.A. stated she sought the information so she could provide her doctors with her family medical history. The district court denied the petition, writing that while the court “understands that [M.A.] has valid reasons for wanting access to this information …, the court believes that it requires something more than a desire to obtain health or genetic or social information unrelated to a specific medical condition” to satisfy the statutory “good cause” requirement. M.A. appealed, and the Utah Court of Appeals certified the case to the Utah Supreme Court.
Oral argument was held in November 2023. At the time this article was submitted for publication, no decision had yet been issued.
Electronic Deposit as Accord and Satisfaction.
Magleby v. Schnibbe, No. 20230524, on Certiorari.
This proceeding arose out a feud between lawyers. Several years ago, Magleby Cataxinos & Greenwood (MCG) obtained a massive contingency fee award. MCG subsequently deposited $1 million into the bank account of Eric Schnibbe, one of MCG’s lawyers. Schnibbe did not return the money and continued to work at MCG. Years later, Schnibbe and MCG became dissatisfied with one another and each filed suit.
During the litigation, the parties disputed whether the $1 million payment Schnibbe received barred his claims that he was owed a larger share of the contingency fee. The district court ruled the $1 million payment satisfied the elements of accord and satisfaction. The Utah Court of Appeals agreed.
Schnibbe petitioned for a writ of certiorari, characterizing the issue as whether accord and satisfaction can be established solely by retention of funds. In other words, Schnibbe asked, may a debtor unilaterally effectuate an accord and satisfaction by transferring funds via direct deposit into a creditor’s account? The Utah Supreme Court granted Schnibbe’s petition.
The briefing in this matter is likely to be completed early in 2024.
Criminal Proceedings
Enforcement of Legislation Prohibiting Abortion Except in Limited Circumstances.
State v. Planned Parenthood Association of Utah, No. 20220696, on Interlocutory Appeal.
This appeal centers on Utah Code Sections 76-7a-101 to -301, which comprise Utah’s “trigger law.” The provisions prohibit abortion except under limited circumstances.
The trigger law’s effective date was contingent on a change in United States Supreme Court case law. After the United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), Utah’s legislative general counsel certified that the requisite change in law had occurred – i.e., that a binding court ruling had been issued providing that a state may prohibit abortion consistent with the trigger law’s provisions – and the law went into effect.
Immediately thereafter, Planned Parenthood Association of Utah (PPAU) filed a complaint challenging the trigger law as unconstitutional under several provisions of the Utah Constitution. The district court granted a preliminary injunction, which bars enforcement of the legislation pending resolution of the litigation.
The State petitioned the Utah Supreme Court for relief, requesting (1) permission to immediately appeal the preliminary injunction and (2) a stay of the preliminary injunction pending resolution of the appeal. The Utah Supreme Court granted permission to immediately appeal the injunction but denied the motion to stay.
On appeal, the State raises three arguments. The State argues, first, that PPAU lacks standing to bring these constitutional challenges. Second, the State claims the Utah Constitution does not contain a right to abortion and therefore PPAU’s claims do not raise serious issues warranting entry of a preliminary injunction. Third, the State asserts there was no showing of harm sufficient to warrant entry of a preliminary injunction.
Oral argument was held in August 2023. At the time this article was submitted for publication, no decision had yet been issued.
Scope/Application of the Jury Unanimity Requirement.
Several cases on the Utah Supreme Court’s docket raise challenges based on the requirement of jury unanimity.
State v. Paule, No. 20220039, on Certiorari. Paule was charged with obstruction of justice and murder. The jury acquitted Paule of murder but convicted him of obstruction of justice. Paule appealed, raising challenges based on the legally impossible verdicts doctrine and the requirement of jury unanimity. The Utah Court of Appeals affirmed, and the Utah Supreme Court granted Paule’s petition for a writ of certiorari.
Paule makes two claims. First, he asserts the Utah Court of Appeals misapplied the legally impossible verdicts doctrine. He argues that his conviction for obstruction of justice is legally incompatible with the verdict acquitting him of murder. Second, Paule asserts the Utah Court of Appeals erred in its analysis regarding jury unanimity. Paule claims the evidence supported multiple theories for commission of obstruction of justice. On that basis, Paule argues the jury should have been instructed that the jurors must agree on the factual conduct that satisfied the elements of the offense.
Oral argument was held in March 2023. At the time this article was submitted for publication, no decision had yet been issued.
State v. Baugh, No. 20220272, on Certiorari. Baugh was charged with two counts of aggravated sexual abuse of a child. The jury acquitted Baugh of one offense but convicted him of the other. On appeal, Baugh contended his counsel was constitutionally deficient. Baugh pointed to the absence of an instruction informing the jury that it must agree on the specific acts that satisfied the elements of each offense. Baugh also asserted the lack of such an instruction was prejudicial to him. The Utah Court of Appeals agreed, and the Utah Supreme Court granted the State’s petition for a writ of certiorari.
The State challenges the Utah Court of Appeals’ opinion on two grounds. First, the State contends the need for a specific unanimity instruction would not have been clear to Baugh’s counsel. Second, the State argues the lack of a specific unanimity instruction generally causes only a slight risk of confusion.
At the time this article was submitted for publication, oral argument in this matter was scheduled for December 2023.
State v. Chadwick, No. 20190818, on Direct Appeal. Chadwick was charged with four counts of sexual abuse of a child. The jury returned a guilty verdict on one count and acquitted Chadwick of the remaining three counts. Chadwick appealed his conviction, and the Utah Court of Appeals certified the case to the Utah Supreme Court.
On appeal, Chadwick asserts the jury was not instructed that the verdict on each count must be unanimous or that the jurors must agree on the conduct that constitutes the offense. Instead, Chadwick argues, the instructions suggested no unanimity on those matters was required. Chadwick also raises challenges regarding the confidential therapy records of the person who testified Chadwick had sexually abused her. Chadwick argues the district court did not adequately perform an in camera inspection of those records to identify information relevant to Chadwick’s defense.
The briefing in this matter is likely to be completed in early 2024.
Constitutionality of the Plea Withdrawal Statute.
State v. Rippey, No. 20200917, on Direct Appeal.
The Utah Supreme Court recalled this appeal from the Utah Court of Appeals. The appeal presents a challenge to the constitutionality of Utah Code Section 77-13-6 (the Plea Withdrawal Statute).
Rippey asserts the Plea Withdrawal Statute is facially unconstitutional and unconstitutional as applied to him. Rippey focuses on the interplay between the Plea Withdrawal Statute and the Post- Conviction Remedies Act, Utah Code Sections 78B-9-101 to -503. According to Rippey, read in combination, those statutes require many criminal defendants to pursue challenges to their guilty pleas through the postconviction process rather than through traditional appellate review. On that basis, Rippey argues the Plea Withdrawal Statute violates the right to appeal with the effective assistance of counsel. In addition, Rippey asserts the Plea Withdrawal Statute is an unconstitutional legislative exercise of the Utah Supreme Court’s rulemaking authority.
Oral argument was held in September 2023. At the time this article was submitted for publication, no decision had yet been issued.
Due Process Constraints on the Refiling of Criminal Charges.
State v. Labrum, No. 20220889, on Direct Appeal.
The Utah Supreme Court retained this appeal, which challenges the manner in which the Utah Constitution’s Due Process provision has been applied to preliminary hearings. In 1986, in State v. Brickey, the Utah Supreme Court ruled that when charges are dismissed at a preliminary hearing for insufficient evidence, refiling those charges violates the Utah Constitution’s Due Process provision unless the state can point to new or previously unavailable evidence or otherwise establish good cause. 714 P.2d 644, 647 (Utah 1986). The Utah Supreme Court later added a gloss to its holding in Brickey. In 2001, in State v. Morgan, the court wrote that the due process inquiry focuses on whether “potential abusive practices are involved.” 2001 UT 87, ¶ 15, 34 P.3d 767. When they are not, there is “no presumptive bar to refiling” because a defendant’s due process rights are not implicated. Id.
Labrum takes on both Brickey and Morgan. Labrum claims the Utah Constitution’s due process protections do not bar a prosecutor from refiling charges to correct mistakes made in an earlier hearing or to assert a different theory of misconduct. To the extent Brickey and Morgan preclude refiling in such circumstances, Labrum asks the Utah Supreme Court to revise its case law and rule that at least one refiling is permissible under most, if not all, circumstances. Labrum also claims Brickey was adopted without a sufficient constitutional analysis and asks the Utah Supreme Court to construe the provision in accordance with its original public meaning.
The briefing in this matter is likely to be completed early in 2024.
Constitutionality of Life Without Parole for a Juvenile Offender.
State v. Mullins, No. 20200149, on Direct Appeal.
The Utah Supreme Court retained jurisdiction over this appeal, which addresses the constitutionality of a sentence of life without the possibility of parole when the underlying offense was committed by an intellectually disabled teenager.
Mullins was sentenced to life without the possibility of parole before the United States Supreme Court issued its decision in Miller v. Alabama, 567 U.S. 460 (2012). In Miller, the court held that the Eighth Amendment’s prohibition on cruel and unusual punishment precludes a mandatory sentence of life without parole for those under the age of eighteen at the time of the offense. Id. at 465. The court also indicated that it will be the uncommon case in which such a severe sentence would be appropriate. Id. at 479.
Following Miller, Mullins moved under Utah Rule of Criminal Procedure 22(e) to withdraw his guilty plea and/or correct an illegal sentence, arguing in part that the district court had not taken into account the circumstances pertaining to his life, age, and possibility for rehabilitation. The motion was denied.
On appeal, Mullins argues his sentence is unconstitutional and should be corrected under Rule 22(e). He raises challenges under the Sixth and Eighth Amendments of the federal constitution, but also argues his sentence violates Article I, Section 9 of the Utah Constitution. Mullins also asserts, among other things, that Utah Code Section 76-3-207 is unconstitutionally vague for lack of guidance on when a sentence of life without parole is appropriate.
Oral argument was held in October 2023. At the time this article was submitted for publication, no decision had yet been issued.
Existence/Scope of an Emergency-Aid Exception Under the Utah Constitution.
State v. Tran, No. 20225060, on Interlocutory Appeal.
The Utah Supreme Court granted Tran permission to appeal the denial of his motion to suppress. Tran asserts the warrantless search of his home violated state and federal constitutional prohibitions against unreasonable searches and seizures.
Tran asks the Utah Supreme Court to analyze the issue first under state constitutional law. Tran claims the Utah Constitution contains more protection against unreasonable searches and seizures than the Fourth Amendment. Tran argues that, under state constitutional law, there is no emergency-aid exception permitting a warrantless search of a person’s home. Moreover, Tran asserts, if state constitutional law did contain an emergency-aid exception, the state-law exception would be narrower than the federal one and it would not apply here. Tran also asserts the search violated the Fourth Amendment.
The State counters each of Tran’s claims, including Tran’s suggestion that the Utah Supreme Court should first analyze the issue under state constitutional law. The State claims the Utah Supreme Court should allow federal law to do most of the work when assessing whether a constitutional prohibition against unreasonable searches and seizures has been violated.
Oral argument was held in September 2023. At the time this article was submitted for publication, no decision had yet been issued.
Use of Hearsay Evidence in Preliminary Hearings.
State v. Nielsen, No. 20230803, on Direct Appeal.
The Utah Supreme Court agreed to retain jurisdiction over this appeal, which addresses a recent change to the Utah Rules of Criminal Procedure. Rule 7B was amended in May 2023 and now provides that a finding of probable cause “may be based on hearsay, but may not be based solely on hearsay evidence admitted under Rule 1102(b)(8) of the Utah Rules of Evidence.” Utah R. Crim. P. 7B(b) (emphasis added).
The State asserts the rule is not being interpreted uniformly. The State reports that some magistrate judges are requiring alleged victims to testify to establish probable cause, while other magistrate judges are not. The State asked the Utah Supreme Court to retain the case to address whether and/or when alleged victims are required to testify to establish probable cause.
The briefing in this matter is likely to be completed in mid- to late 2024.
Substantial Step/Entrapment in Attempt Offenses.
State v. Smith, No. 20220768, on Certiorari.
The Utah Supreme Court granted Smith’s petition for a writ of certiorari, which asserts that his convictions for attempt crimes involving a minor should be overturned.
Smith was on a dating application when he encountered a profile of someone who appeared to be an adult woman. The profile was, however, a pretense, and the person behind it was a law enforcement officer. Smith engaged in an online chat with the officer, in which the officer stated he was a minor, talked about engaging in sexual activity with Smith, and arranged to meet Smith. When Smith arrived at the specified location, he was arrested.
Smith was subsequently convicted of attempted child kidnapping and other offenses involving attempted sexual activity with a minor. The Utah Court of Appeals affirmed.
On certiorari, Smith argues that arriving at the specified locale did not constitute a “substantial step” for purposes of the attempt offenses. According to Smith, a substantial step requires physical proximity. Moreover, Smith contends, physical proximity coupled with solicitation is insufficient to establish a substantial step.
Smith also challenges the Utah Court of Appeals’ application of Utah Code Section 76-2-303, which addresses entrapment. Smith argues the Utah Court of Appeals should have concluded he was induced into the activity at issue by the law enforcement officer.
Oral argument was held in September 2023. At the time this article was submitted for publication, no decision had yet been issued.
Weighing Affirmative Defenses at Bail Hearings.
State v. Jennings, No. 20230720, on Certiorari.
In this proceeding Jennings argues that his right to bail was erroneously denied. Jennings claims he presented sufficient evidence that he acted in self-defense to entitle him to bail. But, according to Jennings, Utah law is not clear on how evidence pertaining to an affirmative defense should be weighed during bail hearings. The district court ordered that Jennings be held without bail. The Utah Court of Appeals affirmed, and the Utah Supreme Court granted Jennings’ petition for a writ of certiorari.
Jennings argues the Utah Court of Appeals engaged in an improper analysis of his right to bail. He asserts the Utah Court of Appeals erroneously asked whether the State had presented substantial evidence that Jennings did not act in self-defense, rather than considering Jennings’ evidence that he did act in self-defense. In viewing the evidence in the light most favorable to the State, Jennings argues, the Utah Court of Appeals failed to properly consider the evidence supporting his claim to self-defense.
The briefing in this matter is likely to be completed in mid- to late 2024.
Restrictions on Defense Decisions in Capital Felony Proceedings.
State v. Lovell, No. 20150632, on Direct Appeal.
In this appeal, which falls within the Utah Supreme Court’s exclusive jurisdiction, Lovell raises several challenges to his conviction for aggravated murder, a capital offense.
One of Lovell’s challenges focuses on funding pertaining to his mitigation defense. Lovell argues the district court improperly allowed Weber County to interfere in decisions regarding the funding of that defense. Lovell also asserts that a study by the Sixth Amendment Center concluded that Utah’s indigent defense system, which requires local governments to fund and administer indigent defense services, results in a constructive denial of counsel. In addition, Lovell asserted Weber County’s cap on the funds available for a mitigation investigation is a small fraction of the funds typically spent by Utah counties on mitigation investigations in capital cases. As a result, Lovell contends, Weber County prevented him from conducting a comprehensive mitigation investigation.
At the time this article was submitted for publication, the briefing in this matter was scheduled to be completed in December 2023.
Refusal to Provide Phone Passcode to Law Enforcement Officers.
State v. Valdez, No. 20210175, on Certiorari.
This proceeding focuses on a defendant’s refusal to provide the passcode to his phone to law enforcement officers. The Utah Supreme Court granted certiorari to address whether the Court of Appeals erred in concluding the State’s elicitation and use of testimony about Valdez’s refusal to provide a passcode for his phone constituted an impermissible commentary on an exercise of the right to remain silent.
The parties focused their briefing on whether Valdez had a Fifth Amendment right to refuse to provide the passcode to his phone. The Utah Supreme Court called for supplemental briefing focused more specifically on the question on which certiorari was granted, whether elicitation and use of testimony about Valdez’s refusal to provide the passcode constituted impermissible commentary. The parties were also asked to address how analysis of that issue is affected, if at all, by Valdez’s presentation of evidence at trial about text messages that may have been located on his phone.
Oral argument was held in March 2023. At the time this article was submitted for publication, no decision had yet been issued.
Child Welfare Proceedings Application of the Strictly Necessary Standard.
In re A.H., No. 20221029, on certiorari.
The Utah Supreme Court granted certiorari in this case involving gut-wrenching decisions regarding the placement of two young children. The juvenile court ruled that multiple statutory grounds existed for terminating the parents’ parental rights. The parents did not contest that ruling on appeal. Instead, the parents asserted the district court erred in concluding termination of their parental rights was “strictly necessary,” as statutorily required.
The parents’ arguments focus on the separation of the children from their five older siblings. All five older siblings had been placed in the permanent custody and guardianship of the oldest sibling’s biological paternal grandparents. The grandparents had also offered to serve as permanent custodians and guardians of the two youngest children. But, while proceedings regarding the parents’ rights had been underway, the two youngest children – who were only eight months and two-and-a-half years old when first removed from the family home – had become tightly bonded to their foster parents. Moreover, the two youngest children had spent relatively little time with their older siblings since being removed from the family home and were not closely bonded to them.
Considering all the circumstances, the district court ruled it was strictly necessary to terminate the parents’ rights, in order to facilitate adoption of the two youngest children by their foster family. The Utah Court of Appeals reversed, in an opinion that raises important questions regarding the meaning and application of the strictly necessary standard and appellate review of a strictly necessary determination.
Oral argument was held in November 2023. At the time this article was submitted for publication, no decision had yet been issued.
Applicability of the Plain Error Doctrine in Child Welfare Proceedings.
In re A.M., No.20220507, on Direct Appeal.
In the underlying proceeding, the juvenile court entered an order placing four children in the permanent custody and guardianship of their respective fathers, without holding an evidentiary hearing on whether that action was in the best interests of the children. The mother appealed.
The Utah Court of Appeals asked the parties to provide supplemental briefing on three issues: (1) whether the plain error doctrine applies in child welfare proceedings; (2) whether the juvenile court committed plain error in awarding permanent custody without holding an evidentiary hearing; and (3) whether trial counsel provided ineffective assistance of counsel in not requesting an evidentiary hearing. Following receipt of the supplemental briefing, the Utah Court of Appeals certified the case to the Utah Supreme Court.
The Utah Court of Appeals has ruled the plain error doctrine has limited application in civil cases. But the Utah Supreme Court has not yet addressed that issue. This proceeding may thus shed light not only on whether parties may assert plain error in child welfare cases, but also on when or whether parties may assert plain error in civil cases more generally.
Oral argument was held in November 2023. At the time this article was submitted for publication, no decision had yet been issued.
Postconviction Proceedings
Constitutionality of the PCRA.
Kell v. Benzon, No. 20180788, on Direct Appeal.
The Utah Supreme Court has exclusive jurisdiction over this appeal, which involves a challenge to the legality of a death sentence. The petitioner argues that his petition for postconviction relief was wrongly dismissed.
The district court dismissed the petition on procedural grounds. On appeal, the petitioner requested that his procedural noncompliance be excused under an “egregious injustice” exception to the Post-Conviction Remedies Act (PCRA). He also asked that the court exercise its traditional authority over collateral proceedings to grant the relief he sought.
But while the appeal was pending, the Utah Supreme Court issued its decision in Patterson v. State, 2021 UT 52, 504 P.3d 92. In Patterson, the court explained that it has not included an egregious injustice exception in its rules governing the exercise of the court’s writ power; and as a result, the court may only hear a case otherwise barred by the PCRA when failure to do so would violate the petitioner’s constitutional rights. Id. ¶¶ 170–94.
The court thus asked the parties to provide supplemental briefing addressing whether violation of constitutional rights is at issue here. The parties were asked to address: (1) whether the procedural bar at issue is unconstitutional under the Utah Constitution and, if so, whether that challenge was preserved; and (2) whether the timing of the petition (which was not filed until several years after the petitioner discovered the facts upon which it is based) adversely affects the petitioner’s ability to obtain relief under the court’s constitutional writ power.
The supplemental briefing was completed in February 2023. At the time this article was submitted for publication, no decision had yet been issued.
Carol Funk
moc.nqr@knufc
801-323-3687
Carol Funk is an experienced appellate attorney and chair of Ray Quinney & Nebeker’s Appellate Practice. She also serves on the Utah Supreme Court’s Advisory Committee on the Rules of Appellate Procedure.