State of Utah v. Young

----ooOoo----

State of Utah,
Petitioner,

v.

Honorable David S. Young,
Third Judicial District Court,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000376-CA

F I L E D
June 2, 2000
  2000 UT App 166 -----

Original Proceeding in this Court

Attorneys:
Jan Graham and Thomas B. Brunker, Salt Lake City, for Petitioner
Brent M. Johnson, Salt Lake City, for Respondent

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

The State of Utah filed a Petition for Extraordinary Relief alleging that the district court has "abused its discretion" or "exceeded its jurisdiction" by granting relief against the State without complying with the provisions of Rule 65C(h) of the Utah Rules of Civil Procedure. The State requests this court to order the respondent "to vacate his order granting [the petitioner] relief from his criminal conviction, and handle the petition in compliance with [Rule 65C]." The State further contends that by failing to comply with Rule 65C, the respondent never obtained personal jurisdiction over the State and, consequently, "his order granting the post-conviction petition exceeds his jurisdiction." See Utah R. Civ. P. 65B(d)(2)(A).

In the underlying proceedings on a petition for post-conviction relief, the Utah Attorney General's Office received notice of a "Review Hearing" scheduled for April 10, 2000. The district court did not enter an order indicating what portions of the petition were deemed to be nonfrivolous and required a response. See Utah R. Civ. P. 65C(h). The Attorney General's Office responded in a letter to the district court, reciting the provisions of Rule 65C(h), and taking the position that the Attorney General had not been served with a copy of the petition and had not been ordered to respond, and if ordered to respond, Rule 65C(i) allows the respondent thirty days in which to answer. The letter concluded:

If this Court concludes that the petition for post-conviction relief is not frivolous on its face, this Court should designate the portions of the petition that are not dismissed, direct the clerk to serve a copy of the petition (along with any attachments and memorandum) upon the respondent, along with an Order requiring the Attorney General to respond.

The trial court held the review hearing, at which time counsel for the petitioner appeared, but the Attorney General's Office did not. The district court, noting the Attorney General's failure to appear after receiving notice, granted the petition as unopposed. The State seeks to set aside this ruling.

The preliminary issue before this court is whether the State may seek review of the ruling by a petition for extraordinary relief. The State contends that it has no plain, speedy and adequate remedy through a special appearance to challenge the court's jurisdiction because it is a non-party. We conclude that the State has not established standing to seek review by a petition for extraordinary relief without first seeking a ruling in district court.

The Utah Supreme Court established the following prerequisites for seeking appellate-type review through an extraordinary writ petition in Society of Professional Journalists v. Bullock, 743 P.2d 1166, 1172 (Utah 1987):

[W]e conclude that to demonstrate appellate standing, one using a petition for a writ as a vehicle to obtain appellate-type review of a trial court's ruling must show the following: (i) the petitioner has standing to proceed before the district court, (ii) the petitioner is challenging the district court's ruling adverse to him or her, and (iii) the petitioner appeared and presented his or her claims to that court. If the petitioner fails to establish any one of these standing requirements, this Court will not consider the claims.

With regard to the last requirement, the court acknowledged that "the very reason for seeking appellate review by way of a writ is because the petitioner was not a party below and cannot appeal." Id. However, the court stated the requirement "serves much the same purpose as the party or privy requirement [for appellants] by assuring that the petitioner has brought his or her claims before a lower court, and it has had the opportunity to hear and consider those contributions and to rule upon them." Id. The court concluded that "by having appeared and presented its claims to the district court, the Society has provided this court with a basis upon which to review the district court's action." Id. at 1175-76.

In the present petition, the State satisfies the first two requirements because it was the respondent in the Rule 65C proceedings. The inquiry is, accordingly, whether the State "appeared and presented its claims to the district court." Id. at 1175. The State sent a letter to the court stating its position; however, the State did not appear at the review hearing, did not make a special appearance to dispute jurisdiction, and has not sought to set aside any final judgment under Rule 60(b), Utah Rules of Civil Procedure. The letter did not seek, and was not calculated to obtain, a ruling from the district court. In fact, the only ruling the State seeks to have reviewed is a minute entry reciting that the post-conviction petition was granted as unopposed.

The State has not established standing to pursue its claim for review through an extraordinary writ petition. The State argues that because it claims lack of personal jurisdiction, it could not appear, even specially, to challenge jurisdiction in the district court. To accept this argument as a basis to consider the extraordinary writ petition would allow any jurisdictional claim to be asserted in an extraordinary writ proceeding without first seeking review of the claim in the district court, as required by Bullock.

Accordingly, we dismiss the petition for extraordinary relief.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge