March 28, 2013, Utah Court of Appeals Case Summaries

March 28, 2013

Utah Court of Appeals Cases

Salt Lake City v. Menke, 2013 UT App 75, No. 20120342‐CA (March 28, 2013)

Affirming Judge Randall Skanchy

PER CURIAM,

Richard Menke appeals his conviction of burglary of a vehicle. Menke argues that there was insufficient evidence to support the conviction and that the district court should have granted his motion for a directed verdict. We affirm.

At ¶1.

The Court reviews the facts and determines that the guilty verdict was supported by sufficient evidence.

At ¶¶ 2-4.

State v. Jimenez, 2013 UT App 76, No. 20100957‐CA (March 28, 2013)

Affirming Judge Terry Christiansen

PER CURIAM,

Jimenez asserts that he received ineffective assistance of counsel at trial because trial counsel failed to obtain forensic examinations of the victims, failed to move to sever the charges based on the individual victims, and failed to object to prior bad acts testimony from a witness.

At ¶ 2.

To establish a claim of ineffective assistance of counsel, a defendant must show that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

At ¶ 2.

Jimenez has not shown that there is any reasonable possibility that a physical examination of the victims years after the abuse ended would produce any relevant evidence. Accordingly, he cannot show that counsel was ineffective in not pursuing such examinations.

At ¶ 4.

To establish ineffective assistance for failing to seek severance, a defendant “must demonstrate both that the motion should have been granted and ‘a reasonable probability’ that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” State v. Hallet, 796 P.2d 701, 706 (Utah Ct. App. 1990) (citation omitted).

Although Jimenez argues that the charges should not have been joined because the crimes were distinct in the details, we are not persuaded. It appears that the charges were properly joined as “part of a common scheme or plan.” Utah Code Ann. § 77‐8a‐1(1). A common scheme or plan applies “when the crimes involve a similar fact pattern and proximity in time.” State v. Balfour, 2008 UT App 410, ¶ 20, 198 P.3d 471. “To be classified as a common plan or scheme it is not necessary for the crimes to have been perpetrated in an absolutely identical manner, so long as the court perceives a visual connection between the [multiple] crimes.” Id.

. . . Jimenez’s abuse of three siblings over more than a decade can be considered a common scheme or plan under section 77‐8a‐1(1)(b).

[E]ven when charges are properly joined they may be severed if trying them together would prejudice the defendant. See Utah Code Ann. § 77‐8a‐1(4)(a). To analyze prejudice, the court must determine “whether evidence of the other crime[s] would have been admissible in a separate trial.” Balfour, 2008 UT App 410, ¶ 21.

Jimenez does not address whether the testimony of other victims would have been admissible at trial if the charges were severed. Accordingly, he has not shown that a motion to sever “should have been granted.” Hallet, 796 P.2d at 706. As a result, he cannot show that trial counsel was ineffective for failing to move to sever the charges for separate victims.

At ¶¶ 5-9.

Finally, Jimenez asserts that trial counsel was ineffective for failing to object to testimony from his ex‐wife regarding the reason for their divorce in 2000 . . . .

To show that counsel’s deficient performance prejudiced his defense, Jimenez must demonstrate that, absent counsel’s error, there is a reasonable probability that the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the [verdict].” Id. Ex‐wife unexpectedly testified in a cursory manner that one of the reasons for their divorce was Jimenez’s physical abuse of her. No further explanation or detail was presented. Given the direct testimony of the three victims regarding the duration, frequency, and particulars of the sexual abuse by Jimenez, there is no reasonable probability of a different outcome without Ex‐wife’s testimony. The other evidence against Jimenez was overwhelming.

At ¶¶ 10-11.

Salt Lake City v. Miles, 2013 UT App 77, No. 20111124‐CA (March 28, 2013)

Affirming Judge Robert Faust,

Wade John Miles was involved in an altercation with a light rail train supervisor concerning his attempt to board the train with a shopping cart in what appeared to be an intoxicated state.  During the altercation Miles allegedly threatened the supervisor.  The supervisor called the police, and the officer arrested Miles for threatening the supervisor and intoxication.  While searching Miles, the officer found a knife with a 3 1/2 inch blade and 3 ½ inch to 4 inch handle.  Miles was later convicted on one count of possession of a dangerous weapon by a restricted person, a class A misdemeanor.  During the trial, the Court allowed the prosecution to present Miles’ booking photo as evidence.

At ¶¶ 1- 6.

Miles advances two contentions on appeal. First, he contends that the evidence was insufficient to support the jury’s verdict of guilt on the dangerous weapon charge. . . .

Second, Miles contends that the trial court abused its discretion by admitting the booking photo. “A trial court has broad discretion in deciding whether evidence is relevant, and we review a trial court’s relevance determination for abuse of discretion.” State v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d 1194.

At ¶¶ 7-8

Our Legislature has defined dangerous weapon as “an item that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Utah Code Ann. § 76‐10‐501(6)(a). “Thus, because an item must simply be capable of causing death or serious bodily injury, an item not necessarily manufactured as a dangerous weapon may nonetheless become one.” State v. C.D.L., 2011 UT App 55, ¶ 16, 250 P.3d 69 (citing Utah Code Ann. § 76‐1‐601(5)(a) (2008)) (interpreting a similarly worded definition of dangerous weapon for purposes of defining aggravated assault). The statute enumerates four factors relevant to determining whether a knife is a dangerous weapon:

The following factors shall be used in determining whether a knife, or another item, object, or thing not commonly known as a dangerous weapon is a dangerous weapon:

(i) the character of the instrument, object, or thing;

(ii) the character of the wound produced, if any;

(iii) the manner in which the instrument, object, or thing was used; and

(iv) the other lawful purposes for which the instrument, object, or thing may be used.

Utah Code Ann. § 76‐10‐501(6)(b).  The trial court instructed the jury to consider all four of the statutory factors in determining whether the knife was indeed a dangerous weapon.

At ¶ 11.

The Court determines that the statutory directive to consider “the manner in which the instrument, object, or thing was used” does not require that the thing actually be used in order to qualify as a dangerous weapon. See id. § 76‐10‐501(6)(b)(iii).

At ¶¶ 12-15.

The Court reviews the evidence and determines that the jury’s conclusion that the knife was a dangerous weapon was supported by sufficient evidence.

At  ¶¶ 16-21.

We conclude that the trial court did not abuse its discretion in admitting the photo. Miles’s appearance shortly after his arrest was relevant to the charge of intoxication. “The judge could determine that the photograph was relevant and admissible on the issue of his intoxication notwithstanding and in addition to the admission of testimony concerning the defendant’s appearance at the time.”

At ¶ 24 (citations omitted).

We . . . do not agree that the evidence was so meager that without the booking photo there was a reasonable likelihood of an acquittal on the dangerous weapon charge.

At ¶ 26.

Judge Davis, dissenting,

Although I agree with the majority that Miles’s not having used the knife is not dispositive, I do believe it is relevant, particularly under the circumstances of this case where Miles not only did not use the knife but also did not even access or attempt to access it.

At ¶ 30.

To approach the dangerous weapon analysis as the majority has in this case is to essentially preclude any restricted person from carrying anything sharper than a butter knife. I do not disagree that the evidence regarding the types of wounds the knife is capable of inflicting may be relevant, but I would consider such evidence to fall within the ambit of the first factor, not the second. The second factor should be limited to considering only the wounds actually produced, “if any.” See Utah Code Ann. § 76‐10‐501(6)(b)(ii).

At ¶ 32.

In light of the fact that Miles neither used nor attempted to use the knife, that no wound was caused by the knife, and that the knife was “well suited for camping and other innocent uses,” see supra ¶ 20, I do not find the evidence that the knife was sharp, serrated, and capable of causing injury, combined with Miles’s empty threats to the supervisor, to sufficiently support a determination that the knife was a dangerous weapon. Thus, I would reverse Miles’s conviction.

At ¶ 33.

[E]ven assuming that the photograph was marginally relevant to the charges of which he was acquitted, as the City asserts, I believe that under the circumstances of this case, that relevance was outweighed by the photograph’s potential prejudice. Given the extremely limited evidence relating to the dangerous weapon charge—evidence which I consider to be insufficient to support the verdict—I am persuaded that there was a “reasonable likelihood of a more favorable result” for Miles had the booking photograph been excluded

At ¶ 34 (citation omitted).

Rapoport v. Four Lake Village Homeowners, 2013 UT App 78, No. 20110801‐CA (March 28, 2013)

Affirming in part, reversing in part Judge Keith Kelly

Judge Roth,

Plaintiffs Richard N. Rapoport and Jean A. Rapoport appeal from the district court’s decision to uphold Defendant Four Lakes Village Homeowners Association, Inc.’s (the HOA) denial of the Rapoports’ request to install and use certain lighting fixtures in common areas of the condominium complex where the Rapoports own a condominium unit. We affirm in part and reverse and remand in part.

At ¶ 1.

The Rapoports first argue that, in deciding their claim for declaratory relief, the district court improperly decided factual issues that were neither raised by the pleadings nor tried by the parties’ consent and made the same error in entering postjudgment findings and conclusions.

At ¶ 2.

The Court reviews the complaint and determines that

the “specific averments” regarding the aspen spotlights “supplant, limit and control the more general allegations” referring to the HOA’s decision. See id. Reading the Rapoport’s complaint in this way, we conclude that it is limited to the aspen spotlights.

At ¶¶ 3 6.

The Court also concludes that the scope of the Rapoports’ claim was not expanded at trial by the parties’ express or implied consent as permitted by Rule 15(b).

At ¶¶ 7-11.

[E]ven with the deference that is accorded to the district court on such matters, given the parties’ and the court’s statements at the pretrial hearing and at the commencement of trial as well as the focus on the aspen spotlights at trial, we conclude that the HOA’s decision as it extended to the tiki lights and the other spotlights has [sic] not tried by the express or implied consent of the parties.

We therefore conclude that issues concerning the tiki lights and other spotlights were neither pleaded in the complaint nor tried by the parties’ consent. Accordingly, we reverse the district court’s decision to the extent that it concluded otherwise and decided those issues and remand for appropriate modification of the judgment.

At ¶¶ 10-11.

The Court, interpreting the Declaration of Covenants, Conditions and Restrictions governing the property, concludes that the trial court properly upheld the HOA’s decision not to allow the Rapoport’s to light the Aspen trees in the common area.

At ¶¶ 13-18

The Court upholds the trial court’s decision to exclude a photograph of the lights due to a lack of foundation concern.

At ¶¶ 19-20.

The Court, interpreting the Declaration’s attorney fees provision, upholds the trial court’s determination to grant the HOA attorney fees.

At ¶¶ 21-25.

Hasratian v. Department of Workforce Services, 2013 UT App 79, No. 20111069‐CA

(March 28, 2013)

Original Proceeding

Judge Roth,

Claimant Hyke A. Hasratian appeals a decision by the Workforce Appeals Board (the Board) that he committed fraud by receiving unemployment benefits to which he was not entitled and should be assessed a fraud penalty. We decline to disturb the Board’s decision.

At ¶ 1.

The Court reviews the evidence and determines that there was substantial evidence to support the Board’s determination.

In re J.J. and J.A., 2013 UT App 80, No. 20130018‐CA (March 28, 2013)

Affirming Judge Charles Behrens

PER CURIUM,

A.A. (Mother) appeals the juvenile court’s December 14, 2012 order terminating her parental rights. We affirm.

At ¶ 1.

In order to overturn the juvenile court’s decision as to the sufficiency of the evidence, “[t]he result must be against the clear weight of the evidence or leave the appellate court with a firm and definite conviction that a mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.

At ¶ 2.

The Court reviews the evidence and determines that the Juvenile Court’s decision was supported by substantial evidence.

March 21, 2013 Utah Court of Appeals Cases

March 21, 2013

Utah Court of Appeals Cases

State v. Rasabout and Kaykeo, 2013 UT App. 71, No. 20100284‐CA (March 21, 2013)

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGE WILLIAM A. THORNE JR. concurred.

JUDGE GREGORY K. ORME concurred in part and concurred in the result in part, with opinion.

Judge Voros,

Following a jury trial, Andy Rasabout and Levitz London Kaykeo (collectively, Defendants) were each convicted of one count of possession of alcohol by a minor, a class B misdemeanor, see Utah Code Ann. § 32A‐12‐209 (LexisNexis Supp. 2007) (current version at id. § 32B‐4‐409 (2011)), and twelve counts of discharge of a firearm from a vehicle, a third degree felony, see id. § 76‐10‐508 (Supp. 2007) (current version at id. §§ 76‐10‐508, ‐508.1 (2012)). Before sentencing, the trial court merged the twelve counts of discharge of a firearm into a single count for each defendant. The State appeals that decision. Kaykeo cross‐appeals, challenging his conviction on the basis of ineffective assistance of counsel. We reverse and remand for resentencing on the first issue and affirm on the second.

At ¶ 1.

After sentencing, Kaykeo filed a motion for new trial, arguing that his trial counsel was ineffective because he did not investigate possible witnesses who could verify Kaykeo’s alibi.

At ¶ 6.

The trial court ruled that the multiple shots fired toward the house and cars constituted one offense because the shots were all part of a “single criminal episode.” See Utah Code Ann. § 76‐1‐401 (LexisNexis 2012). Relying on case law, the court also ruled that the multiple shots constituted one offense because the multiple shots were animated by “one intention, one general impulse, and one plan.” See State v. Crosby, 927 P.2d 638, 645 (Utah 1996) (citation and internal quotation marks omitted). The State argues that the trial court erred by relying on the “single criminal episode” statute and case law interpreting it rather than looking to the firearm discharge statute to determine how many counts Defendants may be convicted of. We agree.

At ¶ 9.

When a defendant has been charged under multiple counts for the same offense, the court may merge the counts to avoid a double jeopardy violation. See Lee, 2006 UT 5, ¶¶ 30–31. Therefore, to determine whether merger was appropriate, the relevant question is what constitutes a single offense.

At ¶ 10.

[T]he fact that separate acts fall within the definition of “single criminal episode” does not establish that they are a single offense. . . . On the contrary, Utah law expressly provides that “[a] court may impose consecutive sentences for offenses arising out of a single criminal episode as defined in Section 76‐1‐401.” Utah Code Ann. § 76‐3‐401(5) (LexisNexis 2012). Accordingly, a determination that separate acts—in this case, shots from a gun—are part of a single criminal episode does not mean that they cannot be punished separately, but that—again, subject to enumerated qualifications—they must be tried together. Thus, the single criminal episode statute does not resolve the question before us.

At ¶ 12.

“[A]t its core, the issue of duplicity or multiplicity is one of statutory interpretation.” Charles Alan Wright et al., 1A Federal Practice & Procedure: Criminal § 142, at 13 (4th ed. 2008).

The key question in reviewing the statute is what the legislature has determined to be the “allowable unit of prosecution.” See United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952). “‘The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. . . . If the latter, there can be but one penalty.’” Blockburger v. United States, 284 U.S. 299, 302 (1932) (omission in original) (quoting Wharton’s Criminal Law § 34 n.3 (11th ed.)). “Whether a particular course of conduct involves one or more distinct ‘offenses’ under the statute depends on this [legislative] choice.” Sanabria, 437 U.S. at 70. Thus, “‘[t]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.’” State v. McCovey, 803 P.2d 1234, 1239 (Utah 1990) (quoting Albernaz v. United States, 450 U.S. 333, 344 (1981)), modified by State v. Smith, 2005 UT 57, ¶ 11 & n.4, 122 P.3d 615 (addressing the method of determining “what punishments the Legislative Branch intended to be imposed”). We therefore turn to an analysis of the firearm discharge statute.

At ¶¶16-17.

Under this statute, “[a] person may not discharge any kind of dangerous weapon or firearm” under the stated conditions. Utah Code Ann. § 76‐10‐ 508(1)(a) (LexisNexis Supp. 2007). The crux of the question is what the Legislature meant by the word discharge. The dictionary definition of the verb discharge is clear. In the present context it means simply to “fire a weapon,” MacmillanDictionary.com, http://www.macmillandictionary.com/dictionary/ american/discharge (last visited March 14, 2013), or to “shoot,” Merriam-Webster, http://www.merriam‐webster.com/dictionary/discharge (last visited March 14, 2013). We therefore conclude that the “clearest reading of the statute” is that each act of firing a gun constitutes a separate offense, or unit of prosecution. See Morrison, 2001 UT 73, ¶ 26. Here, Rasabout fired his weapon, or shot, twelve times. Accordingly, reading the statute according to the “fair import” of its terms as well as its plain language, these shots violated the statutory prohibition twelve times. See Utah Code Ann. § 76‐1‐106 (LexisNexis 2012)

At ¶ 21.

A claim of ineffective assistance of counsel requires proof of two elements: “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show hat the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Lenkart, 2011 UT 27, ¶ 25, 262 P.3d 1. To prove constitutionally deficient performance, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” in light of all the circumstances. Strickland, 466 U.S. at 687–88. Furthermore, the defendant must overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and that “under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (citation and internal quotation marks omitted); see also State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.

At ¶ 35.

The adequacy or reasonableness of the investigation is the controlling factor. See Taylor v. State, 2007 UT 12, ¶ 47, 156 P.3d 739 (citing Wiggins v. Smith, 539 U.S. 510, 522–23 (2003)); State v. Hales, 2007 UT 14, ¶¶ 69–70, 152 P.3d 321. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.ʺ Strickland, 466 U.S. at 690–91; see also Taylor, 2007 UT 12, ¶ 47. Thus, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691; see also Taylor, 2007 UT 12, ¶ 48.

At ¶ 37.

[A]ccording to the facts accepted by the trial court, Kaykeo never informed his counsel of the two witnesses who could corroborate his alibi. Kaykeo’s counsel inquired about potential witnesses and was given only one lead. He did not follow that lead, because Kaykeo dissuaded him from doing so.

Based on these facts, the only possible basis for a claim of inadequate investigation is counsel’s failure to follow up with the girlfriend. But this failure did not constitute deficient performance in this case. As noted above, in deciding whether Kaykeo’s counsel provided deficient performance, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Furthermore, the adequacy of an investigation “may be determined or substantially influenced by the defendant’s own statements or actions.” Id. at 691. Accordingly, we cannot ignore—nor can we expect Kaykeo’s counsel to have ignored—Kaykeo’s statement that his girlfriend “would not be helpful because she was ‘mad at him.’” Counsel could have interpreted this statement to mean that she would not be willing to provide names of other witnesses, that she would lie out of spite and provide harmful but false testimony, or that she would be unwilling to lie and would provide harmful but true testimony. Because Kaykeo gave his counsel “reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” See id. In light of these facts, Kaykeo’s counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” See id. at 690.

At ¶¶ 43-44.

Judge ORME, (concurring in part and concurring in the result in part):

I concur in section I of the lead opinion but concur only in the result reached in section II. Given the difficulties in determining the adequacy of trial counsel’s performance based on conflicting affidavits and given the lack of an evidentiary hearing below to resolve the conflict, I am persuaded that the best course is to resolve the ineffective assistance claim raised by Kaykeo12 purely on the prejudice prong, as our cases allow us to do.

At ¶ 49.

State v. Graham, 2013 UT App 72, No. 20100828‐CA (March 21, 2013)

Affirming Judge Scott Hadley

Judge Orme,

Defendant Jerry Lee Graham appeals his conviction for escape, a third degree felony, see Utah Code Ann. § 76‐8‐309 (LexisNexis 2012),1 claiming that his trial counsel provided ineffective assistance and that the trial court committed plain error. We affirm.

At ¶ 1.

Defendant was serving a 45 day sentence for driving on a suspended license in the jail.  While in jail he was permitted to leave during the day to work, provided he returned each night by a certain hour.  Defendant, according to his own calculations, determined that he was entitled to release on July 4, 2008.  After work on July 4, 2008, he did not return to the jail.  He was later arrested for escape.

Prior to the trial, the prosecution obtained a ruling barring any mention of why defendant was in jail.  The trial commenced and Defendant testified on his own behalf.  On direct examination Defendant talked about documents he purported supported his assertion that he was entitled to release, but did not submit any of the documents into evidence.

On cross examination, the prosecutor questioned Defendant about his prior criminal history including two parol violations.  Defense Counsel did not raise any objections.  While asking Defendant about his time in jail, Defendant told the jury that he was in jail for a suspended license.  The Court directed the jury to disregard the comment.  The defendant also complained that the prosecutor was “more concerned about [his] job and [his] status as far as wins and los[ses] compared to what’s right and what’s justice[.]”  During closing arguments the prosecutor told the jury his was concerned about justice, not wins and losses.  Defense counsel did not object.

The jury found Defendant guilty.

At ¶¶ 2-9

Defendant asks us to reverse his conviction because he claims that he received ineffective assistance of counsel at trial. Specifically, Defendant argues that his trial counsel was ineffective because he (1) failed to discover and introduce potentially exculpatory documents, (2) failed to object when the State questioned Defendant about and introduced evidence of his prior criminal history, and (3) failed to object to the State’s “prejudicial and misleading statements” during closing argument.

At ¶ 10.

Defendant also claims that the trial court made two errors, namely (1) allowing the jury to consider evidence of Defendant’s prior criminal history and (2) permitting the State’s prosecutorial misconduct during closing argument and allowing the prosecutor’s prejudicial statements to be considered by the jury. Because Defendant raises these claims for the first time on appeal, he relies on the doctrine of plain error. Thus, he must show that “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).

At ¶ 13.

The Court concludes that discovery was not deficient and counsel decision not to proffer the evidence was reasonable.

At ¶¶ 14-17

The Court concludes that the evidence regarding Defendant’s past criminal history was admissible.

At ¶¶ 18-21

The Court concludes that the prosecutor’s remarks in closing argument were not inappropriate or prejudicial.

At ¶¶ 22-24

Defendant had accused the State of prioritizing wins and losses over truth and justice. By making such an accusation, Defendant opened the door to an appropriate response by the State. And, within the context of Defendant’s accusation, the jury no doubt viewed the State’s remarks as a defense of its own ethical standards rather than an attack on Defendant’s or trial counsel’s character or ethical standards. Under all the circumstances, the verdict was likely not influenced by the remarks, trial counsel was not ineffective for failing to object to them, and the trial court did not plainly err in allowing them.

At ¶ 24

Kendell v. Department of Workforce Services, 2013 UT App. 73, No. 20111105‐CA (March 21, 2013)

The Dept. of Workforce Services denied Kendell’s application for unemployment benefits because she was in Europe and thus unavailable to work in the United States.  Kendell asserted that he was available by cellular telephone and email, and that he had sufficient airline miles to obtain a flexible return ticket that would have allowed him to return to the United States within twenty‐four hours. Kendell appeals

Judge McHugh,

Kendell argues that he was available for work while traveling in Europe as required by Utah Code section 35A‐4‐403. See Utah Code Ann. § 35A‐4‐403(1)(c) (LexisNexis Supp. 2012) (stating that an unemployed individual is eligible to receive benefits only if that individual “is able to work and is available for work”). The Board’s determination that Kendell was unavailable primarily rested on its interpretation of administrative rule R994‐ 403‐112c, which addresses foreign travel as a factor affecting a claimant’s availability. The rule states, in relevant part,

a claimant who is engaged in an activity for more than half the normal workweek that would prevent the claimant from working, is presumed to be unavailable and therefore ineligible for benefits. . . . When a claimant is away from his or her residence but has made arrangements to be contacted and can return quickly enough to respond to any opportunity for work, the presumption of unavailability may be overcome.

. . .

Unemployment benefits cannot be paid to a claimant located in a foreign country unless the claimant has authorization to work there and there is a reciprocal agreement concerning the payment of unemployment benefits with that foreign country. An exception to this general rule is that a claimant who travels to a foreign country for the express purpose of applying for employment and is out of the United States for two consecutive weeks or less is eligible for those weeks provided the claimant can prove he or she has a legal right to work in that country. A claimant who is out of the United States for more than two weeks is not eligible for benefits for any of the weeks.

At ¶ 13.

After briefing was completed, this court issued a decision in Dorsey v. Department of Workforce Services, 2012 UT App 364, 294 P.3d 580, rejecting the Board’s interpretation of rule R994‐403‐112c as “impos[ing] a disability not mentioned in the statute, impermissibly restricting the meaning of the availability requirement, and thus . . . not ‘in harmony’ with the statute.” Id. ¶¶ 19–22. In making this determination, the Dorsey court held that

the touchstone of rule R994‐403‐112c(2)(a), as with section 35A‐4‐403(1)(c), is availability. Foreign and domestic travel are relevant to the determination of availability, but are not grounds for denying eligibility to a traveler who demonstrates, as [c]laimant has, that he is able to work and is available for work during each and every week for which [he] made a claim for benefits under this chapter. Thus, with foreign travel, the presumption of unavailability in rule R994‐403‐112c(2)(a) may be overcome not only by showing that the claimant was seeking work in a foreign country under the conditions specified in rule R994‐403‐112c(2)(a)(i), but also by showing that the claimant made arrangements to be contacted and could return quickly enough to respond to any

opportunity for work.

Id. ¶ 23 (second alteration in original) (footnote, citations, and internal quotation marks omitted).

At ¶ 14.

The Court directs the Board to reconsider the evidence and determine if Kendell could have returned to the United States for work immediately.

At ¶¶ 16-17.

Levier v. Department of Workforce Services, 2013 UT App. 74, No. 20110816‐CA (March 21, 2013)

The Dept. of Workforce Services denied Levier’s application for unemployment benefits because she was in Brazil on family business for two weeks and thus unavailable to work in the United States.  Levier appeals

Judge Voros,

In Dorsey, we held that the Board’s interpretation of its rules controlling availability was inconsistent with the governing statute. See 2012 UT App 364, ¶ 21. We concluded that a claimant who is presumed unavailable under Utah Administrative Code R994‐403‐ 112c(2)(a) due to foreign travel could overcome that presumption “by showing that the claimant made arrangements to be contacted and could return quickly enough to respond to any opportunity for work.” 2012 UT App 364, ¶ 23; see also Utah Admin. Code Ann. R994‐403‐112c(2)(a) (LexisNexis Supp. 2011).

At ¶ 3.

The Court concludes that the Board failed to determine as a fact that Levier could not immediately return to the United States and that its arguments were assumptions unsupported by the evidence.  The Court sets the Board’s decision aside and directs them to reconsider the evidence.

At ¶¶ 6-8.

March 19, 2013, Utah Supreme Court Case

March 19, 2013

Utah Supreme Court Cases

Gregory v. Shurtleff, 2013 UT 18, Nos. 20110277, 20110473 (March 19, 2013)

JUSTICE DURHAM authored the majority opinion in which JUSTICE PARRISH and JUSTICE NEHRING joined.

JUSTICE LEE filed a concurring, dissenting opinion in which CHIEF JUSTICE DURRANT joined.

Justice Durham,

Appellants brought suit to enjoin the enforcement of a law, claiming that the law violated the state constitution in four respects. The district court dismissed the first two claims and rejected the second two claims on summary judgment. On appeal, we consider whether Appellants had standing to bring these claims in the first place. We hold that, although they lacked the personal injury required for traditional standing, Appellants had public-interest standing to bring the first two claims. We also hold that they did not have standing to bring the second two claims under either the traditional or the public-interest doctrine of standing, and we accordingly vacate the grant of summary judgment on those claims and remand to the district court for dismissal. Finally, we hold that although Appellants had standing to bring the first two claims, the district court properly dismissed the claims under Utah Rules of Civil Procedure, rule 12(b)(6).

At ¶ 1.

Appellants claimed the Bill was unconstitutional in four respects. The first two claims fall under Article VI, Section 22 of the Utah Constitution, which provides that “no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.” (Emphasis added.) Appellants argue that the Bill as a whole violates this provision in two respects: first, they argue that it contained “more than one subject”; second, that its subject was not “clearly expressed in its title” (collectively, the Article VI Claims). The second two claims fall under Article X, Section 3 of the Utah Constitution, which provides that “[t]he general control and supervision of the public education system shall be vested in a State Board of Education.” Appellants argue that two items of the Bill violate this provision: first, the item that delegates the administration of the Teacher Salary Supplement Program to the Department of Human Resources; second, the item that delegates textbook approval to private entities (collectively, the Article X Claims).

At ¶ 4.

The Court discusses Public Interest Standing

Unlike in the federal system, our law recognizes that appropriate plaintiffs without individualized injury may nevertheless possess standing to bring certain claims treating issues of great public importance. We determine that the issues underlying the Article VI Claims rise to this level and that Appellants are appropriate parties to bring these claims; Appellants therefore have standing to raise the Article VI Claims. The issues underlying the Article X claims, however, do not rise to this level, and furthermore Appellants are not appropriately situated to bring them. Accordingly, they do not have standing to raise the Article X claims.

On the merits of the district court’s dismissal of the Article VI Claims, we hold that even on the facts alleged by Appellants, the Bill does not violate either the single-subject or clear-title rules of Article VI, Section 22. Accordingly, the dismissal is affirmed.

At ¶¶ 9-10.

While it is “the usual rule that one must be personally adversely affected before he has standing to prosecute an action. . . . it is also true this Court may grant standing where matters of great public interest and societal impact are concerned.” Jenkins v. State, 585 P.2d 442, 443 (Utah 1978).

At ¶ 12.

[W]e engage in a three-step inquiry in reviewing the question of a plaintiff’s standing to sue. The first step in the inquiry will be directed to the traditional criteria of the plaintiff’s personal stake in the controversy. . . . If the plaintiff does not have standing under the first step, we will then address the question of whether there is anyone who has a greater interest in the outcome of the case than the plaintiff. If there is no one, and if the issue is unlikely to be raised at all if the plaintiff is denied standing, this Court will grant standing. . . . The Court will deny standing when a plaintiff does not satisfy the first requirement of the analysis and there are potential plaintiffs with a more direct interest in the issues who can more adequately litigate the issues. The third step in the analysis is to decide if the issues raised by the plaintiff are of sufficient public importance in and of themselves to grant him standing.

At ¶ 13 (quoting Jenkins v. Swan, 675 P.2d 1145, 1150 (Emphasis added)).

In Jenkins v. Swan we framed the middle step of the “threestep inquiry” as “the question of whether there is anyone who has a greater interest in the outcome of the case than the plaintiff.” 675 P.2d at 1150. In Cedar Mountain, however, we modified the inquiry, requiring a determination of whether the plaintiff is “an appropriate party.” 2009 UT 48, ¶ 8 (emphasis added).

At ¶ 15.

Under the alternative test, a petitioning party must first establish that it is an appropriate party to raise the issue in the dispute before the court. A party meets this burden by demonstrating that it has the interest necessary to effectively assist the court in developing and reviewing all relevant legal and factual questions and that the issues are unlikely to be raised if the party is denied standing. We recognize that there is language in both Jenkins [v. Swan] and subsequent cases suggesting that in making this determination the court may grant standing only to the party with the greatest interest in the case, or in other words, the most appropriate party. We now conclude, however, that the notion that a court must find the most appropriate party, thereby limiting standing under the alternative criteria to only one party in any given case, is unnecessary and counter-productive. . . . [A] court addressing standing under the alternative test does not need to determine which party seeking to intervene is the most appropriate party in comparison to any other potential party, but rather needs to determine only which parties are, in fact, appropriate parties to a full and fair litigation of the dispute in question.

. . . .

In addition, an appropriate party must still satisfy the second part of the alternative test before we will grant standing. Once a party has established that it is an appropriate party to the litigation, it must also demonstrate that the issues it seeks to raise are of sufficient public importance in and of themselves to warrant granting the party standing.

At ¶ 15 (quoting Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74,

¶¶ 36, 39, 148 P.3d 960 (citations omitted) (internal quotation marks omitted)).

The Court determines that Appellants do not have traditional standing on any of their claims.

At ¶¶ 19-24.

The Article VI claims rise to the level of great constitutional importance, and Appellants are appropriately situated to raise them.

At ¶¶ 25-32.

The “appropriateness” of a party under the public-interest standing doctrine is a question of competency. In the Sierra Club case, we determined that the Club “would have standing under the alternative [public-interest] test” due to its policy concerns and status as an “entity focused on protecting the environment.” Id. ¶ 42. The coalition of Appellants in the instant case is not as well established or long-standing as the Sierra Club, but it similarly has policy concerns and has come together to “focus[] on” the instant constitutional challenge. Further, Appellants have shown themselves able to “effectively assist the court” in its consideration of the Article VI Claims.

At ¶ 29.

Sierra Club requires that “the issues [be] unlikely to be raised if the party is denied standing.” Id. ¶ 36 (internal quotation marks omitted). We can certainly construct hypothetical plaintiffs who might be seen to have traditional standing to bring at least some of Appellant’s claims. For instance, a teacher whose colleagues’ salaries were raised under the Teacher Salary Supplement Program, but whose own salary was left unchanged, might invoke direct economic interests. Similarly, we can imagine a suit brought by a textbook publisher whose materials were rejected pursuant to the Textbook Approval Program. But our inquiry is not whether some hypothetical plaintiff can be imagined; it is whether “the issues are unlikely to be raised if the party is denied [publicinterest] standing.” Id. (emphasis added) (internal quotation marks omitted). Here, where the Board itself is silent and no other plaintiff has emerged in the years since the Bill’s passage, we think that is indeed unlikely.

At ¶ 30.

One more feature of our prior statements on public-interest standing deserves mention. In Sierra Club, we observed that a court’s recognition that a party has public-interest standing analysis

requires the court to determine not only that the issues are of a sufficient weight but also that they are not more appropriately addressed by another branch of government pursuant to the political process. The more generalized the issues, the more likely they ought to be resolved in the legislative or executive branches.

Id. ¶ 39 (emphasis added) (citation omitted).  But Article VI, Section 22 places restrictions on the legislative process itself. Where the legislature has passed a bill and the governor has signed it, we cannot assume that either of those branches are appropriate parties to whom to entrust the prosecution of a claim that the bill violates the strictures of Article I, Section 22. And “more generalized” in this context speaks not to the general nature of the interest—for that is inherent in every issue of “sufficient weight” to justify the recognition of public-interest standing—but rather to the generalized nature of the issue itself.17 In other words, public-interest standing should not be used by courts to engage in review of nonjusticiable political questions. Here, Appellants’ claims do not raise that type of question. Rather, they seek to enforce an explicit and mandatory constitutional provision dealing primarily with questions of form and process. See UTAH CONST. art. I, § 26 (“The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”).

At ¶ 31.

The Article X Claims do not Rise to the Same Level of Great Constitutional Importance, and Appellants Are Not Appropriately Situated to Raise Them

At ¶¶ 33-37.

Appellants fail to satisfy either element of the public interest standing test with respect to their Article X Claims. First, while we have explained above that Appellants are “appropriate part[ies]” to raise the Article VI Claims, they are not as well situated to raise the Article X Claims. While the restrictions on the legislative process imposed by Article I, Section 22 give every citizen of Utah an interest in seeing them obeyed, the delegation in Article X, Section 3 of “general control and supervision of the public education system” to the Board does not create such a general interest. Further, Appellants below and in their briefs and argument on appeal have not proved themselves able to “assist the court in developing and reviewing all relevant legal and factual questions.” Id. ¶ 36 The crucial question of how we are to understand the scope of “general control and supervision of the public education system,” and the related question of what the historical practice and traditional core functions of the Board have been, were never sufficiently framed and answered. This played a role in the district court’s grant of summary judgment in favor of Appellees on the Article X Claims.

At ¶ 35.

Every constitutional provision is surely important, but not every alleged violation of a constitutional provision will provide a basis for public-interest standing. As discussed above, the single subject and clear-title rules imposed on the legislature by Article VI, Section 22 meet that standard. They are restrictions which must be observed every time the legislature exercises its core function of passing laws. The provision at issue in the Article X Claims, in contrast, is a delegation of a defined subject to a particular agency. While we do not conclude that such questions can never be appropriate ones in which to employ the public-interest standing doctrine, in combination with the Appellants’ lack of “appropriateness” to treat them, their more localized significance renders the public-interest standing doctrine inapplicable to these plaintiffs on these claims.

At ¶ 36

The Court dismisses the Article VI Claims

The Complaint did not state a violation of the single-subject rule

At ¶¶ 39-52.

Almost a century ago, this court opined that while the single-subject rule

is mandatory and binding alike upon the courts and the Legislature, yet it should be liberally construed in favor of upholding a law, and should be so applied as to effectuate its purpose in preventing the combination of incongruous subjects neither of which could be passed when standing alone. A too strict application of the provision might, however, result in hampering wholesome legislation upon any comprehensive subject rather than in preventing evils.

At ¶ 40. (quoting Salt Lake City v. Wilson, 148 P. 1104, 1109 (Utah 1915).)

Furthermore, while bills must address a single subject, “’[t]here is no constitutional restriction as to the scope or magnitude of the single subject of a legislative act.’” Martineau v. Crabbe, 150 P. 301, 304 (Utah 1915) (emphasis added) (quoting the North Dakota Supreme Court’s interpretation of their constitution’s single-subject rule in State v. Morgan, 48 N.W. 314, 317 (N.D. 1891)). “A liberal view should be taken of both the act and the constitutional provisions so as not to hamper the law making power, but to permit the adoption of comprehensive measures covering a whole subject.” Kent Club v. Toronto, 305 P.2d 870, 873 (Utah 1957)(discussing both the single subject and clear-title rules).

At ¶ 40.

Examined on its face, under this liberal standard the Bill does not violate the single-subject rule. All its provisions deal with public education. With one very minor exception, all its enactments and amendments are confined to Title 53A of the Utah Code. We do not suggest that such confinement to one title or general subject area will always shield a law from claims that it violates the singlesubject rule. Nor do we suggest that legislation which amends items located in two or more titles will per se be ruled unconstitutional. We have never established, and do not create today, a precise formula for determining whether a challenged act “contain[s] more than one subject.” UTAH CONST. art. VI, § 22. Such a formula may well be impossible to craft,22 and might be undesirable even if it were possible.

At ¶ 42.

The Complaint did not state a violation of the clear title rule

At ¶¶ 53-61.

[T]he title is sufficient if it is not productive of surprise and fraud and is not calculated to mislead the legislature or the people, but is of such character as fairly to apprise the legislators and the public of the subject matter of the legislation and to put anyone having an interest in the subject on inquiry.

At ¶ 55. (quoting Thomas v. Daughters of Utah Pioneers, 197 P.2d 477, 508 (Utah 1948) (Latimer, J., concurring)).

The Court concludes that a bill’s “long title” is a part of the “title” for purposes of Article 6, Section 22.

At ¶¶ 56-61.

Justice Lee, concurring in part, dissenting in part,

[A]lthough we have long recognized a “traditional” conception of standing requiring individualized injuries sustaining private rights of action, our more recent decisions have exhibited increasing willingness to overlook that requirement under a “public interest” exception. That exception, as reconceived by the court today, stretches the principle of standing beyond recognition.

I respectfully dissent from the majority’s invocation—and extension—of this “public interest” exception to the traditional requirement of standing. Its methodology is incompatible with the judicial power clause in Article VIII of the Utah Constitution. That clause limits our authority to the resolution of cases that fall within the traditional conception of the judicial power. In overriding these constraints, the majority robs the constitutional limits on our power of meaningful content. It does so to uphold standing for the Article VI claimants in this case on public interest grounds, thereby subjecting the standing inquiry to the arbitrary discretion of the court, under a standardless “test” that is little more than a post-hoc justification for a preferred result. Under this test, the standing question is left to a subjective, case-by-case assessment of a majority of the court as to whether the claims seem sufficiently “important” to merit review.

Instead of expanding the public interest exception, I would repudiate our prior dicta on this point and reject the exception altogether. And I would resolve the case under a traditional formulation of standing—one requiring an assertion of injury sustaining a private action. That formulation, in my view, requires dismissal of all of the claims at issue in this case, including the Article VI claims the majority reaches on public interest grounds.

At ¶¶ 63-65.