UDoC v. Young

----ooOoo----

Utah Department of Corrections;
Hank Galetka, Warden;
and Don Taylor, Institutional
Disciplinary Hearing Officer (IDHO),
Petitioners,

v.

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

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000285-CA

F I L E D
June 2, 2000 2000 UT App 167  -----

Original Proceeding in this Court

Attorneys:
Jan Graham and James H. Beadles, Salt Lake City, for Petitioners
Brent M. Johnson, Salt Lake City, for Respondent -----

Before Judges Bench, Davis, and Orme.

PER CURIAM:

Petitioners seek an extraordinary writ directing respondent to vacate the default entered against petitioners in the case of Gollaher v. Galetka, No. 990911306 (Utah Dist, Ct. April 7, 2000) (default judgment).

In the underlying proceedings on a petition for post-conviction relief, inmate Scott Logan Gollaher filed a petition for extraordinary relief directed to the Department of Corrections and certain employees (the Department) seeking an order to vacate a disciplinary sanction, refund a fine, and complete a new housing/security classification. Gollaher caused a copy of the petition and a summons to be "served" on the prison. The district court scheduled an evidentiary hearing for March 24, 2000. The notice sent to the Attorney General's Office by the court was not received by the Department's counsel. Based upon the Department's failure to appear, the court entered a certificate of default and granted the relief as requested. The minute entry recited that the Attorney General's Office was not present although proper notice of the hearing had been sent by the court. The Department seeks review of this ruling.

The Department contends the respondent exceeded the district court's jurisdiction by entering the default, claiming the Department was not made a party to the proceeding under Rule 65B(d), Utah Rules of Civil Procedure. In support of this petition under Rule 19, Utah Rules of Appellate Procedure, the Department contends it has no plain, speedy or adequate remedy to challenge the ruling because it is a non-party.

The preliminary issue before this court is whether the State may seek review of the ruling through a petition for extraordinary relief. For the reasons more fully set forth in our memorandum decision in State v. Young, No. 2000376-CA, 2000 UT App 166, we conclude that the Department has not established standing to seek review through a petition for extraordinary relief without first seeking a ruling on its claims in district court. The Utah Supreme Court established the prerequisites for seeking appellate-type review of a district court ruling through an extraordinary writ petition in Society of Professional Journalists v. Bullock, 743 P.2d 1166, 1172 (Utah 1987). A petitioner seeking such relief is required to appear and present his or her claims in district court. See id. "[T]he 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. In Bullock, the supreme court applied this requirement to a non-party. See id.

The Department makes no representation that it has appeared and presented its claims in the district court. The Department did not appear at the March 24 hearing for the reasons previously noted; it did not make a special appearance to dispute jurisdiction; and it did not seek to set aside the default certificate under Rule 55, or a final judgment under Rule 60(b), Utah Rules of Civil Procedure. We further note that a prerequisite to extraordinary relief is the unavailability of a plain, speedy, or adequate remedy at law. See Utah R. App. P. 19(b)(4) (stating petition shall include "[a] statement of the reasons why no other plain, speedy, or adequate remedy exists"); see also Utah R. Civ. P. 65B(a) ("Where no other plain, speedy and adequate remedy is available, a person may petition for extraordinary relief.").

The State has not established standing to pursue its claim for review through an extraordinary writ petition. The State apparently 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.

Accordingly, we dismiss the petition for extraordinary relief for failure to establish the prerequisites for review.
 
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge