Utah Court of Appeals Cases, February 22, 2013

February 22, 2013

Utah Court of Appeals Cases

Helfrich v. Adams, 2013 UT App 37, No. 20110459-CA (February 22, 2013).

Affirming Judge John R. Morris of the Second District, Farmington Department.

Judge Davis,

Issues:

1)      Did the six year breach of contract statute of limitations pass before the action was filed?

2)      Did the “equitable discovery rule” toll the statute of limitations?

3)      Should the Ruling have been reconsidered upon the discovery of new evidence?

Ruling:

Issue 1:

“In a breach of contract action the statute of limitations ordinarily begins to run when the breach occurs.” Butcher v. Gilroy, 744 P.2d 311, 313 (Utah Ct. App. 1987).

At. ¶ 8.  Interpreting the contract (a Promissory Note), the Court determines that breach occurred in 1999.  Seven years before the complaint was filed.

Issue 2:

There are two circumstances where the “equitable discovery rule may operate to toll an otherwise fixed statute of limitations period”:

(1) where a plaintiff does not become aware of the cause of action because of the defendant’s concealment or misleading conduct, and (2) where the case presents exceptional circumstances and the application of the general rule would be irrational or unjust, regardless of any showing that the defendant has prevented the discovery of the cause of action.

Russell Packard Dev., Inc. v. Carson, 2005 UT 14, 25, 108 P.3d 741 (citation and internal quotation marks omitted).

At ¶ 9.

In order to successfully toll the statute of limitations under the concealment branch of the equitable discovery rule, Plaintiffs must demonstrate that Finan did “not become aware of the cause of action because of [Adams’s] concealment or misleading conduct.” See Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 25, 108 P.3d 741 (emphasis added).

At ¶ 14.

Failure to disclose the transfer is not the “concealment or misleading conduct” contemplated by the equitable discovery rule.  Plaintiffs did not present any evidence to suggest Defendant was engaged in misleading conduct.

At ¶ 15.

“before a statute of limitations may be tolled under [the equitable discovery rule], the plaintiff must make an initial showing that he did not know nor should have reasonably known the facts underlying the cause of action in time to reasonably comply with the limitations period.”

At ¶ 9 (quoting Berneau v. Martino, 2009 UT 87, ¶ 23, 223 P.3d 1128).

Given that the transfers [triggering Defendant’s obligation under the contract] were a matter of public record, we agree with the trial court that Finan had constructive notice that the transfers had occurred and, through the exercise of reasonable diligence, could have discovered her claims within the limitations period.

At ¶ 12.

Issue 3:

A Rule 60 Motion does allow reconsideration of a ruling if new evidence would change the result, but in this case the new evidence was a statement made by the Defendant after the statute of limitations had already expired.  Accordingly, it could not have changed the result.

T3 Properties v. Persimmon Investments, 2013 UT App. 38, 20110445-CA (February 22, 2013)

Affirming Judge L.A. Dever of the Third District, Salt Lake Department.

This opinion deals with the interpretation of the 2001 statutes regarding the creation of judgment liens.  In June 2001, Defendant obtained a judgment against a prior owner of a piece of property.  In January 2002, the prior owner transferred the subject property to a third party.  The third party later sold the property to Plaintiff in 2006.  In 2009 Defendant attempted to collect the judgment by placing a judgment lien on the property.  Plaintiff sued for a declaratory judgment that Defendant did not have a lien on the property.  The trial court granted Plaintiff’s Motion for Summary Judgment.

Judge Roth,

Interpreting the 2001 version of the judgment liens statute, the Court holds that the statute requires the judgment be both recorded in the Registry of Judgments and accompanied by an information statement before the property is transferred for a judgment lien to take effect.

At. ¶ 18.

State v. Martinez, 2013 UT App. 39, No. 20110015-CA (February 22, 2013)

Affirming Judge Himonas, Third District, Salt Lake City

Criminal Law: Defendant appeals the denial of his Motion for New Trial and Motion to Appoint New Counsel alleging that his attorney labored under a conflict of interest (i.e. his attorney admitted being intimidated by him).

Judge Orme,

The Court reviews all of the efforts made by counsel to defend Defendant.  The alleged conflict of interest involves counsel’s admission that he feels intimidated by the client and it has caused him to do things that are otherwise against his professional judgment.

The trial court ruled that Defendant could not get new counsel by creating an intimidating situation and denied the Defendant’s Motion to Appoint New Counsel.

“the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.  If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client’s evaluation of his performance.” United States v. Cronic, 466 U.S. 648, 657 n.21 (1984).

At ¶ 24.

Defendant has not demonstrated how counsel failed to represent his best interests at trial. Therefore, we are not persuaded that defense counsel actually labored under a conflict of interest. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)

At ¶ 29.

“[W]hen a defendant expresses dissatisfaction with counsel, a trial court must make some reasonable, non‐suggestive efforts to determine the nature of the defendant’s complaints.” State v. Pando, 2005 UT App 384, ¶ 24, 122 P.3d 672 (citations and internal quotation marks omitted) (alteration in original).

At ¶ 30.

Because we determine that Defendant’s attorneys did not have a conflict of interest and that the trial court adequately inquired into Defendant’s dissatisfaction within his counsel, we review the court’s ultimate denial of his motion for substitution of counsel only for an abuse of discretion. See State v. Scales, 946 P.2d 377, 381 (Utah Ct. App. 1997).

At ¶ 32.

Judge Thorne Jr. (Dissenting)

I respectfully dissent from the majority’s decision determining that the trial court was adequately apprised of Defendant’s complaints before it denied Defendant’s motion for substitution of counsel.

At ¶ 34.

The events of this case present several troubling conflict of interest issues pertaining to whether defense counsel’s actions violated their duty of loyalty to their client and whether the trial court properly performed its duty of inquiry. The first task is to consider whether defense counsel breached their duty of loyalty and then consider whether the trial court properly inquired into the potential conflict of interest issues.

At ¶ 38.

Because defense counsel failed to consult with Defendant, or even inform him of their actions on the conflict of interest issue, Defendant was uninformed and unprepared to present his request for substitute counsel. Based on defense counsel’s actions, I conclude that counsel’s personal interests diverted their efforts away from Defendant’s interest and may well have impaired their abilities to represent Defendant, thereby violating their duty of loyalty to Defendant.

At ¶ 40.

Here, the trial court did not conduct a proper inquiry with defense counsel regarding their conflict of interest claim during the initial in chambers discussion of the matter, nor did the court inquire with Defendant about his relationship with his counsel after disclosure of the potential conflict. Without such an inquiry the trial court was unable to assess the situation and determine whether an actual conflict of interest existed.

At ¶ 41.

I would conclude that the trial court erred in not conducting a more meaningful inquiry into the conflict of interest issue.

At ¶ 46.

State v. Sommerville, 2013 UT App. 40, No. 20081042-CA (February 22, 2013)

Affirming Judge Paul Maughan’s, Third District, Salt Lake Department, denial of a Motion to Dismissed based on double jeopardy.

This is a good outline of Utah’s Single Criminal Episode Statute, Double Jeopardy, and Res Judicata.

Judge Roth,

In Justice Court, Defendant was charged with several misdemeanors including following too closely and misdemeanor DUI.  He paid the fine for following too closely (because notice of the fine was sent separately) and the city moved to dismiss the remaining charges believing that they arose from the same criminal episode.

Two months later, Salt Lake County charged Defendant with felony DUI in the district court based on the same incident.  The information also included the remaining misdemeanor charges that the Justice Court had dismissed.  Defendant moved to dismiss based on double jeopardy and res judicata.

The district court dismissed the misdemeanor offenses but declined to dismiss the felony DUI offense, concluding that further prosecution of the DUI offense was not barred by the Single Criminal Episode Statute or by double jeopardy or res judicata.  Sommerville appeals this decision.

[We] affirm the district court’s decision not to dismiss the felony DUI offense because we are persuaded that prosecution of that offense is not barred by the Single Criminal Episode Statute, double jeopardy, or res judicata.

At ¶ 2.

Single Criminal Episode Statute

The issue is whether the disposition of the following too closely offense on the citation and the dismissal of the remaining misdemeanor offenses, including the DUI offense, in the justice court bars subsequent prosecution of the DUI offense as a felony in the district court.

At ¶ 8.

First, the issuance and disposition of the citation does not constitute a prosecution under the Single Criminal Episode Statute. And second, the prosecution of the misdemeanor DUI offense in the justice court was not concluded in a manner that bars subsequent prosecution.

At ¶ 11.

the justice court simply granted the City’s voluntary motion to dismiss the misdemeanor DUI. Thus, that dismissal did not involve any “determination inconsistent with a fact that must be established to secure conviction in the subsequent prosecution.” Id. § 76-1-403(1)(b)(iv). Therefore, because the misdemeanor DUI offense was not resolved in a way that implicates the Single Criminal Episode Statute, the prosecution in the justice court does not bar the subsequent prosecution of the felony DUI offense in the district court.

At ¶ 20.

Double Jeopardy

Double jeopardy . . . protects a criminal “defendant from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” State v. Rudolph, 970 P.2d 1221, 1230 (Utah 1998).

At ¶ 23.

Because “‘jeopardy does not attach until a defendant is put to trial before the trier of the facts,’” State v. Cahoon, 2009 UT 9, ¶ 12, 203 P.3d 957 (quoting Serfass v. United States, 420 U.S. 377, 391 (1975)), double jeopardy “does not attach at pretrial proceedings,” id. ¶ 13; see also id. ¶ 13 n.15

At ¶ 24

At the time of dismissal, jeopardy had not attached to the DUI offense, whether classified as a misdemeanor or a felony, because it was dismissed during pretrial proceedings, before Sommerville had been put to trial before the finder of fact.  See Cahoon, 2009 UT 9, ¶¶ 12–13.

At ¶ 25.

Res Judicata

The Court outlines the law regarding “claim preclusion” and “issue preclusion.”

both claim preclusion and issue preclusion require that “the first suit must have resulted in a final judgment on the merits.” Mack, 2009 UT 47, ¶ 29. . . . Sommerville has not convinced us that the City’s voluntary dismissal of the misdemeanor DUI offense in the justice court was a final judgment on the merits.

At ¶ 31.

State v. Collins, 2013 UT App 42, No. 20110164-CA (February 22, 2013)

Reversing and Remanding Judge Judith Atherton’s, Third District, Salt Lake Department, denial of Defendant’s Motion to Reinstate the Time for Appeal.

Judge Voros,

At sentencing the trial judge did not advise the Defendant of his right to appeal.  Defense counsel did advise Defendant of the right to appeal, but not the 30 day deadline.  Instead defense counsel told Defendant that if he wanted to appeal he needed to let him know within two weeks.  Defendant did not timely appeal and moved for reinstatement of the time.  The motion was denied.

a defendant is entitled to have the trial court reinstate the thirty-day time frame for filing an appeal where the defendant can prove by a preponderance of the evidence “that he has been unconstitutionally deprived, through no fault of his own, of his right to appeal.”

At ¶ 7.

We . . . conclude that properly advising a defendant of his right to appeal includes advising him of the time within which an appeal must be filed. Accordingly, neither the sentencing court nor Collins’s attorney properly informed Collins of his right to appeal. Consequently, under Manning and Johnson v. State, Collins has “a valid claim for reinstatement of that right,” Johnson v. State, 2006 UT 21, ¶ 26.

At ¶ 9.

a defendant is not required to show in addition that, had he been informed of his rights, he would have appealed.

At ¶ 15.

Express Recovery Services v. Cochron, 2013 UT App. 43, No. 20120882-CA (February 22, 2013)

Affirming Judges Andrew Stone and Su Chon, Third District, West Jordan Department.

Per Curiam,

This matter is before the court on its own motion for summary disposition. This court cannot review the issues raised because Cochron has not provided an adequate record on appeal. See Utah R. App. P. 11 (discussing the record requirements on appeal).

At ¶ 1.

All issues raised by Cochron in his docketing statement and in his response to this court’s motion for summary disposition involve rulings made during the course of his trial. Cochron has failed to provide this court with a transcript of those proceedings. Without such a transcript, we must presume the correctness of the underlying decisions

At ¶ 3.

In Re K.K. and K.K, 2013 UT App 44, No. 20120868-CA (February 22, 2013)

Judge Scott Johansen, Fourth District Juvenile, American Fork Department

Per Curiam,

Appeal dismissed for failing to file petition for appeal within 15 days of notice of appeal.

Durbin v. Dept. of Workforce Services, 2013 UT App 45, No. 20120966-CA (February 22, 2013)

Original Proceeding in this Court.

Per Curiam,

John Durbin petitions for review of the Workforce Appeals Board’s (the Board) decision affirming the denial of unemployment benefits based on a finding that Durbin was discharged for just cause. We decline to disturb the Board’s decision.

At ¶ 1.

This court will uphold the Board’s decision applying law to facts “so long as it is within the realm of reasonableness and rationality.” See Arrow Legal Solutions Grp., PC v. Workforce Servs., 2007 UT App 9, ¶ 6, 156 P.3d 830.

At ¶ 2.

The Court finds the decision rational.

Munoz v. Dept. of Workforce Services, 2013 UT App 46, No. 20121036-CA (February 22, 2013)

Original Jurisdiction

Per Curiam,

Betty Munoz petitions for review of the Workforce Appeals Board’s (the Board) decision affirming the denial of unemployment benefits based on a finding that Munoz was discharged for just cause. We decline to disturb the Board’s decision.

At ¶ 1.

This court will uphold the Board’s decision applying law to facts “so long as it is within the realm of reasonableness and rationality.” See Arrow Legal Solutions Grp., PC v. Workforce Servs., 2007 UT App 9, ¶ 6, 156 P.3d 830.

At ¶ 2.

The Court finds the decision rational.

State v. Scott, 2013 UT App. 47, No. 20130035-CA (February 22, 2013)

Affirming Judge Kevin Allen’s, First District, Logan Department, denial of a motion to reinstate the time to file a direct appeal.

Per Curiam,

Scott filed an appeal and pursued it to disposition. Under these circumstances, Scott was not deprived of his constitutional right to direct appeal.

Scott subsequently filed a Manning motion claiming that he was denied his right to appeal because his appellate counsel was ineffective both in briefing his direct appeal and in failing to file a petition for writ of certiorari by the Utah Supreme Court.

“[d]efendants who gain entry to appellate courts and have their appeals concluded either by a ruling on the merits or involuntary dismissal have exhausted their remedy of direct appeal and are thereby drawn into the ambit of the [Post‐Conviction Remedies Act (PCRA)].”

At ¶ 3 (quoting State v. Rees, 2005 UT 69 ¶ 18, 125 P.3d 874).

Jensen v. Skypark Landowners, 2013 UT App 48 No. 20110756-CA (February 22, 2013)

Affirming Judge Thomas Kay’s, Second District, Farmington Department grant of summary judgment in favor of Skypark, the denial of Jensen’s Motion for partial summary judgment, and an award of attorney fees.

Per Curiam,

The trial court was correct that there were no material issues of fact. 

Furthermore, after review of the proceedings, it is apparent that the “dispute” asserted in response was not an issue properly before the trial court in the summary judgment posture. Skypark moved for summary judgment seeking dismissal of the claims asserted in the amended complaint. Those were the only claims before the court for disposition. The matter of whether Skypark was a valid organization formed under the governing 1979 Declarations was not a claim in the amended complaint but was raised for the first time in response to the summary judgment motion.  Accordingly, the issue was not relevant to the matters on summary judgment and thus did not raise any material factual dispute regarding the claims before the trial court. See Eldridge, 2007 UT App 243, ¶ 33. The trial court correctly declined to consider claims raised for the first time in response to a summary judgment motion. See, e.g., id. ¶ 40.

At ¶ 4.

Utah Supreme Court Cases, February 22, 2013

February 22, 2013

Recent Utah Supreme Court Cases

Vorher v. Henriod, 2013 UT 10, No. 20110737 (February 22, 2013).

Justice Parrish,

The Issue:

At issue in this case is whether Utah Code section 76-3-405(2)(b) applies to appeals from justice court convictions. Under section 405(1), “[w]here a conviction or sentence has been set aside on direct review . . . , the court shall not impose a new sentence for the same offense . . . which is more severe than the prior sentence.” UTAH CODE § 76-3-405(1). Section 76-3-405(2)(b) provides an exception to this general rule when a defendant’s sentence is based on a plea agreement. The court of appeals applied this exception to uphold the district court’s imposition of a more severe sentence on Petitioner following his appeal from justice court. We granted certiorari on the issue of “[w]hether the court of appeals erred in denying Petitioner’s request for extraordinary relief challenging the imposition of a more severe penalty following a de novo trial on appeal of his justice court guilty plea.”

Ruling:

We agree with Tooele City and hold that section 76-3-405(2)(b) applies to appeals from justice courts.

Analysis:

[O]ur holding in [Wisden v. District Court, 694 P.2d 605, 606 (Utah 1984) (per curiam)] was clear—subsection (1) applies to justice courts. 694 P.2d 605, 606. Because subsection (1) applies to justice courts and subsection (2) creates an exception to subsection (1), then subsection (2) necessarily applies to appeals from justice court convictions. To conclude otherwise would require us to overrule Wisden.

At ¶. 12

Mr. Vorher has not even articulated an argument suggesting that we overrule our precedent in Wisden. Therefore, stare decisis dictates that section 76-3-405, including subsection (2)(b), applies to justice courts.

At. ¶ 13.

The fact that the Legislature added subsection (2) after we had explicitly held that section 76-3-405 applied to appeals from justice courts suggests that the Legislature intended subsection (2) to apply to justice courts as well.

At ¶ 14.

it would be unwise to hold that a sentence imposed pursuant to a plea agreement should limit a sentence subsequently imposed at trial after [the] defendant has withdrawn his plea. Plea bargains are entered into so that both sides may avoid the expense and uncertainty of a trial. In exchange for conserving State resources, [the] defendant usually receives a lower charge or lesser sentence. Thus, it would be anomalous to allow a defendant to keep the benefit of an agreement he repudiated while requiring the State to proceed to trial and prove its case.

At. ¶ 15 (quoting State v. Powell, 957 P.2d 595, 597 (Utah 1998)

Without a presumption of vindictiveness, a defendant seeking to establish the unconstitutionality of a harsher sentence following an appeal must demonstrate actual vindictiveness. But “courts have uniformly held that no actual vindictiveness was established by the mere fact that the defendant’s sentence exceeded that offered in a plea bargain.” [Kurtis A. Kemper, Annotation, Propriety of Sentencing Judge’s Imposition of Harsher Sentence than Offered in Connection with Plea Bargain Rejected or Withdrawn Plea by Defendant -Federal Cases, 200 A.L.R. Fed. 591 (2005).] (emphasis added). Because Mr. Vorher has failed to articulate any evidence suggesting vindictiveness, any claim that section 76-3-405(2)(b) is unconstitutional would necessarily have been unsuccessful.

At. ¶20

Justice Durham (Concurring),

by its plain language, section 76-3-405 does not apply to appeals from justice court. The majority recognizes this fact in paragraph 12, and we recognized this fact in Wisden.

At. ¶ 25

Notwithstanding my disagreement with the majority’s statutory interpretation, I concur in the result because, as the majority explains in paragraphs 17 through 20, the harsher sentence imposed on Mr. Vorher by the district court does not violate his federal due process rights. The sentence may arguably violate his right to appeal or his due process rights under the Utah Constitution, see City of Monticello v. Christensen, 788 P.2d 513, 519–20 (Utah 1990) (Durham, J., dissenting), but Mr. Vorher has not asked us to consider his state constitutional rights.

At. ¶27.

February 15, 2013, Utah Supreme Court Cases

February 15, 2013

Recent Utah Supreme Court Cases

Supernova Media v. Pia Anderson, 2013 UT 7, No. 20110368, No. 20110412 (February 15, 2013).

Justice Durham,

Appellants appeal denial of their motions to intervene in two different cases involving the same parties.  They also appeal the sealing of court records involving the case.  The Court reverses and remand for consolidation of the cases with Appellant as an intervenor party and unseals the records.

Regarding the Motions to Intervene

rule 24(a) requires intervenors only to “claim”—rather than prove—an interest, the district court is not called on to weigh conflicting evidence but rather to determine whether the intervenor has presented sufficient evidence to make out a “claim.”

At ¶ 16.

[A party moving to intervene] must show (1) that its motion to intervene was timely, (2) that it has “an interest relating to the property or transaction which is the subject of the action,” (3) “that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest,” and (4) that its interest is not “adequately represented by existing parties.”

At. ¶ 22.

“[t]he settlement of a controversy by the parties before a motion to intervene as of right has been adjudicated does not constitute a final settlement and does not render moot either the motion or an appeal from a denial of that motion.” Millard, 823 P.2d at 461. When the parties to a case execute a settlement after a motion to intervene as of right under rule 24(a) has been filed, the judge must rule on the motion to intervene before approving the settlement or dismissing the case.

At. ¶ 29.

a settlement cannot moot an extant motion to intervene as of right.  See Millard, 823 P.2d at 461.

At ¶ 31.

Supernova is only required to claim “an interest relating to the property or transaction which is the subject of the action.” UTAH R. CIV. P. 24(a) (emphasis added); see Bosh, 2011 UT 60, ¶ 9. Supernova is not required to “establish” an interest, and the interest need not be “direct” or “substantial.

At ¶ 35.

The relevant time period for assessing whether “the disposition of the action may as a practical matter impair or impede [the intervenor’s] ability to protect [its] interest” is the time at which the motion to intervene is filed.

At ¶ 44.

Regarding the Motion to Seal Records

courts must always make the findings required by rule 4-202.04 [of the Utah Code of Judicial Administration], and must consider the public’s interest in open court records before issuing a sealing order.

At ¶ 21.

Rule 4-202.04(3) of the Utah Code of Judicial Administration (UCJA) requires judges to follow prescribed steps before granting a motion to seal a court record. A judge must (1) “make findings and conclusions about specific records;” (2) “identify and balance the interests favoring opening and closing the record;” and (3) “if the record is ordered closed, determine there are no reasonable alternatives to closure sufficient to protect the interests favoring closure.” UTAH CODE JUD. ADMIN. R. 4-202.04(3). The rule applies to both civil and criminal proceedings.

At. ¶ 56

Because of the public’s interest in open court records, a court must make the findings required by rule 4-202.04(3) even when all parties stipulate to sealing. A court has discretion to seal documents only “if the public’s right of access is outweighed by competing interests.” State v. Archuleta, 857 P.2d 234, 240–41 (Utah 1993) (internal quotation marks omitted)

At ¶ 58.

Peak Alarm v. Salt Lake City Corp., 2013 UT 8, No. 20120050 (February 15, 2013)

Justice Durham,

City Employees contend that parties with claims against the government must comply with both the underlying statute of limitations that would apply if the suit were between two private parties and the procedural requirements of the Utah Governmental Immunity Act (UGIA). We determine that the UGIA comprehensively governs claims against governmental parties such that plaintiffs are not bound to observe the statute of limitations that would apply to claims against private parties.

At. ¶ 2.

While a suit against a private party for defamation or false arrest must be brought within a year after the date on which the claim accrues, the UGIA contains “different limitation[s] . . . prescribed by statute.” Id. The statute of limitations at section 78B-2-302(4) “would apply if the claim were against a private person,” id. § 63G-7- 401(1)(a), but here it does not apply, because the claim is against governmental parties. Claims against governmental parties are comprehensively governed by the UGIA. Id. § 63G-7-101(2)(b). Therefore, only the UGIA’s procedural requirements apply, and Mr. Howe was not required to comply with the statute of limitations in Title 78B.

At. ¶ 21.

State v. Chettero, 2013 UT 9, No. 20110667 (February 15, 2013)

JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT and JUSTICE PARRISH joined.

ASSOCIATE CHIEF JUSTICE NEHRING filed an opinion concurring and dissenting in part, in which JUSTICE DURHAM joined.

Justice Lee,

In mid-November 2008, the Utah Highway Patrol (UHP) performed a drug interdiction exercise on a rural stretch of I-80 in Summit County. Most of the cars stopped during the exercise, including one driven by Alan L. Chettero, were licensed in other states.  The exercise was begun because California police indicated that harvest time for Marijuana in California would most likely result in trafficking eastward in November.  Chettero challenged the stop on three theories: (1) Equal protection, (2) the right to travel; and (3) the Fourth Amendment

The traffic stop Chettero complains of did not restrict his movement in a manner implicating his fundamental right to travel. His equal protection claim is equally meritless: There was a rational basis for UHP’s choice to focus the bulk of its enforcement efforts on cars bearing out-of-state license plates given UHP’s understanding that significant quantities of drugs would be transported from California through Utah during mid-November. Finally, to the extent the district court erred in failing to consider any evidence of relevance to the Fourth Amendment motion to suppress, it is excusable as harmless error.

At. ¶ 2.

Regarding the Right to Travel

The mere assertion of disparate treatment of out-of-state vehicles is insufficient. For the constitutional right to travel to be implicated, Chettero would have to establish that such disparate treatment infringed on his fundamental constitutional rights. And that is a showing he cannot make.

Under U.S. Supreme Court precedent, the right to travel is understood to comprise three components: (1) “the right to go from one place to another,” by using “highway facilities and other instrumentalities of interstate commerce,” which “includ[es] the right to cross state borders while en route”; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State”; and (3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” See Saenz v. Roe, 526 U.S. 489, 500–01 (1999) (internal quotation marks omitted).

At. ¶¶ 14-15

Only the 2^nd right is at issue here: the right to be treated as a welcome visitor.

this component of the right to travel . . . protects only the rights of non-residents to exercise fundamental economic rights (e.g., obtaining employment or commercial licenses) or to seek important services (such as medical services).  See Saenz, 526 U.S. at 501–02 (citing cases). And even in circumstances involving one of these substantial rights, the second component of the right to travel does not foreclose all discrimination against non-residents. See id. It bars only “discrimination . . . where there is no substantial reason for the discrimination beyond the mere fact that [individuals] are citizens of other States.” Id. (internal quotation marks omitted).

At. ¶ 17.

To the extent there was discrimination, it was based on intelligence that suggested marijuana would be transported from California (where it was grown) across Utah on its way east. So any differential treatment was not based on the “mere fact” that Chettero was a citizen of another state, and the right to travel was not implicated even assuming some form of discrimination.

At ¶ 18.

Regarding Equal Protection

Selective enforcement alone is insufficient to prevail on equal protection grounds, as most “targeting” is simply not prohibited by the Equal Protection Clause.

Classifications are regularly made in the creation and enforcement of the law. Most such classifications are permissible, and thus are subject only to minimal scrutiny under the Equal Protection Clause (i.e., rational basis review). See State v. Robinson, 2011 UT 30, ¶ 22, 254 P.3d 183 (explaining that “rational basis” scrutiny is applied unless a “fundamental right or suspect class [is] at issue”). Only a handful of classifications are so generally problematic (and so unlikely reasonable) that they trigger heightened scrutiny. Such problematic classifications include race4 and gender.

Chettero, however, has not alleged that the traffic laws were selectively enforced on the basis of any judicial-scrutiny heightening classification. He asserts only that those driving Utah-licensed vehicles were treated differently than those driving vehicles licensed elsewhere. His equal protection claim is thus subject to mere rational basis review.

At ¶¶ 19-21

In these circumstances, making high volume traffic stops focusing on out-of-state licensed vehicles had a conceivable relation to UHP’s legitimate goal of intercepting drug traffic across the state. Chettero’s equal protection claim accordingly fails as there is an ample rational basis for any discrimination engaged in by the state.

At ¶ 24

Regarding the Fourth Amendment

Chettero sought to admit statistical evidence showing that the vast majority of cars stopped by UHP during the course of the interdiction exercise bore out-of-state license plates, claiming this statistical evidence impeached Trooper Jensen’s credibility because Jensen had allegedly denied that the primary goal of the interdiction exercise was to target out-of-state individuals.

At ¶ 25.

two key considerations convince us that there was either no error at all or that any error was harmless.  First, it is not at all clear that the statistical evidence Chettero advanced would have impacted Trooper Jensen’s credibility, and Chettero affirmatively waived the opportunity that the district court provided him to show how it might have.

At ¶ 27

Second, the Judge based his decision on a video tape as well which the Court must presume supports his decision because it was not filed on appeal.

Justice Nehring,

I concur in the court’s equal protection analysis and agree with the judgment of the court that the traffic stop of Mr. Chettero did not infringe his right to travel.  However, the majority explains that any discrimination in this case “was based on intelligence that suggested marijuana would be transported from California (where it was grown) across Utah . . . [s]o any differential treatment was not based on the ‘mere fact’ that Chettero was a citizen of another state.”1 The only information that animated law enforcement to make the high volume of traffic stops that included Mr. Chettero was that marijuana could come from out of state. Had troopers stopped cars based on the mere fact of bearing foreign license plates, their activities would have been more suspect. Still, Justice Lee’s analytic approach, when examined more closely, actually concedes the “mere fact” point. The troopers were after drugs. They had received word that the bounty of the California marijuana harvest was coming this way and decided to do something about it. During the interdiction exercise, 95–99 percent of all the cars stopped, and all twenty three of the cars stopped by the trooper in question, were from out of state.2 Whatever else might be said about the trooper’s motives, it is safe to say they were not responding to an epidemic of motorists crossing the fog line. Based on what law enforcement knew, out-of-state marijuana was transiting Utah, transported in vehicles bearing out-of-state license plates. A foreign license plate was not one of several reasons given for stopping cars, it was the only reason. Was it unconstitutional? No. The stops were supported by a rational basis and affected lesser interests than those targeted in right to travel cases.

At. ¶ 33.

Regarding Fourth Amendment Evidence

the testimony quoted above makes clear that the officer is saying under oath that the purpose of the exercise was to stop everyone, not to focus on out-of-state plates. The statistics would have been relevant to impeach this remark.

At ¶ 36.

counsel coherently made the argument that he repeats on appeal at the suppression hearing, citing controlling authority, and received a ruling on it. More should not be required for preservation.

At. ¶ 37.

there was nothing critical about the video. Both parties agree that the video does not start until “right at the point [the officer] activate[ed] the overheads.” The “driving pattern that [the officer] described is not on [the] video.” The purpose of the suppression hearing was to determine whether the officer had reasonable suspicion to initiate the stop. Once the lights were activated, the detention was initiated. . . . That the video may have offered some support to the officer’s testimony is not enough to render the error that occurred at the hearing harmless.

At ¶ 38

When the court must decide which of two witnesses is telling the truth and has improperly excluded evidence that goes to credibility, the error is not harmless. I would reverse the trial court and remand for additional proceedings concerning the legitimacy of the stop.

At ¶ 39.

February 8, 2013, Utah Supreme Court Cases

February 8, 2013

Recent Utah Supreme Court Cases

CARTER-REED COMPANY, LLC, et al. v. ADMIRAL INSURANCE COMPANY, 2013 UT 6, No. 20110556 (February 8, 2013)

The Court interprets an insurance contract’s terms regarding coverage for “personal and advertising injury . . . arising out of . . . [t]he use of another’s advertising idea in your advertisement” to NOT cover allegations of false advertising.

In Utah, an insurer has a duty to defend “when the insurer ascertains facts giving rise to potential liability under the insurance policy.” Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127, 133 (Utah 1997). Where the allegations, if proved, show “there is no potential liability [under the policy], there is no duty to defend.” Deseret Fed. Sav. & Loan Ass’n v. U.S. Fid. & Guar. Co., 714 P.2d 1143, 1147 (Utah 1986). The question of whether there is potential liability under the policy “is determined by comparing the language of the insurance policy with the allegations of the complaint.” Benjamin v. Amica Mut. Ins. Co., 2006 UT 37, ¶16, 140 P.3d 1210 (internal quotation marks omitted). “The question is whether the allegations, if proved, could result in liability under the policy.” Deseret, 714 P.2d at 1147. “If the language found within the collective ‘eight corners’ of these documents clearly and unambiguously indicates that a duty to defend does or does not exist, the analysis is complete.” Equine Assisted Growth & Learning Ass’n v. Carolina Cas. Ins. Co., 2011 UT 49, ¶ 18, 266 P.3d 733.

At ¶ 7

“[A] contract term is not ambiguous simply because one party ascribes a different meaning to it to suit his or her own interests.” Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1192 (Utah Ct. App. 1993).

At ¶ 10

February 14, 2013, Utah Court of Appeals Cases

February 14, 2013

Utah Court of Appeals Cases

Bates v. Utah Assoc. of Realtors, 2013 UT App 34, No. 20120067-CA (February 14, 2013).

Judge Orme:

The Court affirms that “the [one year] statute of limitations for defamation governs claims based on the same operative facts that would support a defamation action.”

They assert that Appellant has not pointed to any specific facts in its complaint that show his claims were not based on the same operative facts as his defamation claim.

State v. Ruvalcaba, 2013 UT App 35, No. 20120062-CA (February 14, 2013).

Per Curium:

Appellant argues that investigating officer improperly extended an initial stop without reasonable suspicion.

When the officer initially observed the vehicle it was parked in the middle of a dirt road with its motor running and its lights on. The officer turned on his overhead lights and got no response from anyone in the vehicle. He then proceeded to the vehicle where he found Ruvalcaba slumped over the steering wheel with a gun on the dashboard. The officer had to yell and knock twice on the window before Ruvalcaba responded. When he did respond, Ruvalcaba appeared disoriented, groggy, and his eyes were red and watery. These circumstances justified the officer’s question to Ruvalcaba about whether he had been drinking. Ruvalcaba’s subsequent statement that he had been drinking, but “not too much,”

Normally, police must end the stop when the initial purpose for the stop is concluded. See State v. Hensen, 2002 UT 125, ¶ 31, 63 P.3d 650. However, “[i]f, during the scope of the traffic stop, the officer forms new reasonable articulable suspicion of criminal activity, the officer may also expediently investigate his new suspicion.” State v. Baker, 2010 UT 18, ¶ 13, 229 P.3d 650.

Court affirms that based on the totality of the circumstance, the officer had a reasonable suspicion that Appellant was driving while intoxicated, and he was justified in asking him to exit the vehicle and take the field sobriety tests.

In re T.O., C.O., A.O., and H.O., 2013 UT App 36, No. 20120964-CA (February 14, 2013).

Per Curium:

Mother appeals termination of parental rights.

A finding of fact is clearly erroneous when, in light of the evidence supporting the finding, it is against the clear weight of the evidence.

“although the court has a duty to look forward—i.e., to look at the parent’s present ability and the likelihood that the parent will be able to resume parenting within a reasonable time—the court must consider such evidence in light of the parent’s past conduct and its debilitating effect on the parent‐child relationship.”

The court reviews the evidence regarding Mother’s inability to provide a home for a substantial period of time despite help and finds there is evidence to support the Juvenile Court’s decision.