Bradbury v. State of Utah

----ooOoo----

Joseph Bradbury,
Petitioner,

v.

State of Utah,
Division of Wildlife Resources,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010839-CA

F I L E D
December 12, 2002 2002 UT App 417 -----

Original Proceeding in this Court

Attorneys:
Robert C. Fillerup, Orem, for Petitioner
Mark L. Shurtleff and Martin B. Bushman, Salt Lake City, for Respondent -----

Before Judges Billings, Bench, and Greenwood.

GREENWOOD, Judge:

Joseph Bradbury (Bradbury) appeals from a final order by the Division of Wildlife Resources, Wildlife Board (the Board), suspending his privileges to hunt big game in the State of Utah for a period of five years. Bradbury argues, inter alia, that he was a non-resident of Utah for the purpose of hunting within the meaning of Utah Code Ann. § 23-13-2(37)(a) (1998 & Supp. 2002), the Board erred in conducting a de novo type hearing, and the Board applied an incorrect definition of the term "knowingly" to his conduct.(1) We affirm.

Bradbury argues that he was a non-resident of Utah for hunting purposes according to the plain meaning of "resident" as defined in Utah Code Ann. § 23-13-2(37)(a). Section 23-13-2 (37)(a) states that a "resident" is a person who (i) has been domiciled in the state of Utah for six consecutive months immediately proceeding the purchase of a license; and

(ii) does not claim residency for hunting, fishing, or trapping in any other state or country. Bradbury argues that because he claimed residency in Idaho for hunting purposes, he does not fall under the statute's definition of "resident." "We review statutory interpretations by agencies for correctness." Ferro v. Utah Dept. of Commerce, 828 P.2d 507, 510 (Utah Ct. App. 1992).

Bradbury's argument centers around the meaning of the term "claim" as used in subsection (37)(a)(ii). Bradbury argues that to fall outside of the "resident" definition, an individual must merely "claim" residency for hunting purposes in another state, regardless of whether that claim is bona fide. The term "claim" is not defined within the statute.

Webster's Dictionary (Webster's) defines "claim" as "a right to something." Webster's Ninth New Collegiate Dictionary 244 (9th ed. 1986). Webster's defines "right" as "something to which one has a just claim": "the power or privilege to which one is justly entitled." Id. at 1015. Black's Law Dictionary (Black's) defines "claim" as "[t]he assertion of an existing right." Black's Law Dictionary 240 (7th ed. 1999). Black's defines "right" as "[t]hat which is proper under law"; "[s]omething that is due to a person by just claim"; "[a] power, privilege, or immunity secured to a person by law." Id. at 1322. Thus, a "claim" is more than simply doing an act, but requires an assertion of a lawful right. In addition, when these definitions are read in conjunction with Utah Code Ann. § 23-19-5 (1998),(2) the plain meaning of the word "claim" excludes an assertion of non-residency made by "fraud, deceit, or misrepresentation." Id.; see Utah County v. Orem City, 699 P.2d 707, 709 (Utah 1985) ("Subsections of a statute should not be construed in a vacuum but must be read as part of the statute as a whole."). The legislature's intent under section 23-19-5 was to prevent the unlawful purchase of a hunting license. To interpret "claim" to include fraudulent claims, as Bradbury contends, would render this section meaningless. Therefore, we interpret the plain meaning of "claim" within this section to include only those claims that are bona fide. See State v. GAF Corp., 760 P.2d 310, 313 (Utah 1988) ("It is axiomatic that a statute should be given a reasonable and sensible construction and that the legislature did not intend an absurd or unreasonable result."); Thornock v. Jensen, 950 P.2d 441, 444 (Utah Ct. App. 1997) (following the literal statutory wording is not required "when to do so would defeat legislative intent and make the statute absurd") (citation omitted).

Next, Bradbury argues that the Board erred in conducting a de novo type hearing on appeal. The Board held a formal hearing in accordance with the Utah Administrative Procedures Act (UAPA). See Utah Code Ann. § 63-46b-8 (1997).

UAPA's statutory scheme ensures that "each applicant has the opportunity to have a formal hearing before the agency, or a [trial] de novo review by the district court." Kirk v. Division of Occupational Licensing, 815 P.2d 242, 245 (Utah Ct. App. 1991). One reason for this statutory scheme is that appellate courts need a complete record in order to review adjudications. Southern Utah Wilderness Alliance v. Board of State Lands, 830 P.2d 233, 236 (Utah 1992). Formal proceedings "allow the opportunity for fuller discovery and fact finding, [and] are more likely to result in an adequate record for review." Id. Thus UAPA vests jurisdiction to review only formal agency proceedings with the supreme court or the court of appeals. Id.

Cordova v. Blackstock, 861 P.2d 449, 451-52 (Utah Ct. App. 1993) (alterations in original). The language in Cordova and section 63-46b-8 indicate that a de novo review is inherent in a formal hearing where the parties have the right to present evidence, argue, respond, and conduct cross-examination. See Utah Code Ann. § 63-46b-8(1)(d). Furthermore, if the Board were limited to the "initial hearing officer's findings of fact and conclusions of law," as Bradbury argues, then the Board's decision would be incapable of appellate review because there would not be a complete record.

Bradbury also argues that the Board erred in considering evidence surrounding his Idaho conviction for unlawfully purchasing a resident hunting license.(3) The purpose of the Board's formal hearing was to determine whether Bradbury "flagrantly and knowingly" violated Utah Code Ann. § 23-19-9 (1998), Wanton Destruction of Protected Wildlife.(4) This determination necessitated an evidentiary hearing to determine the facts surrounding his Utah conviction. To carry its burden, it was necessary for the Division of Wildlife to present evidence of how Bradbury fraudulently obtained his Idaho license in order to prove that he "flagrantly and knowingly" held an invalid non-resident license in Utah. Therefore, the Board did not err in considering evidence of Bradbury's Idaho conviction.

Finally, Bradbury argues that the Board applied the incorrect definition of "knowingly" to his conduct. Because Bradbury argues that the Board erred in applying the term "knowingly," this issue is governed by Utah Code Ann. § 63-46b-16 (4)(d) (1997).(5) Section 63-46b-16(4) requires a showing that Bradbury suffered substantial prejudice from the Board's application of the term "knowingly." "The requirement of 'substantial prejudice' in [sub]section (4) manifests the legislature's intent that relief not be given for an agency error if the error was harmless." Stokes v. Board of Review, 832 P.2d 56, 58 (Utah Ct. App. 1992) (quoting Morton Int'l, Inc. v. Auditing Div., 814 P.2d 581, 584 (Utah 1991)) (footnote omitted). "An error is considered harmless if it is 'sufficiently inconsequential that . . . there is no reasonable likelihood that the error affected the outcome of the proceedings.'" Id. at 58 n.1 (quoting Morton, 814 P.2d at 584).

Bradbury has failed to show that he suffered substantial prejudice in this case. The evidence presented demonstrates that Bradbury clearly knew that he did not possess a valid non-resident Utah hunting license because, among other things, it was acquired based on his fraudulent misrepresentation in obtaining a resident hunting license in Idaho. Therefore, this court cannot grant relief because even if the Board may have erred in its application of the definition of knowingly, "there is no reasonable likelihood that the error affected the outcome of the proceedings." Id.

Thus, we affirm the Board's decision to suspend Bradbury's privileges to hunt big game in the State of Utah for a period of five years.
 
 

______________________________
Pamela T. Greenwood, Judge -----

I CONCUR:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

I CONCUR IN THE RESULT:
 
 

______________________________
Russell W. Bench, Judge

1. Bradbury also argues there was insufficient evidence in the record to support that he "flagrantly and knowingly" purchased a non-resident license unlawfully, and that because there was a clerical error in the Information, the Board was precluded from using the Information to revoke his hunting license. We find these arguments to be without merit and do not address them.

2. Utah Code Ann. § 23-19-5 states:

It is unlawful for any person to obtain or attempt to obtain a license, permit, tag, or certificate of registration by fraud, deceit, or misrepresentation. It is unlawful for a nonresident to purchase a resident license. It is unlawful for a resident to purchase a nonresident license. Any person violating provisions of this section is guilty of a class B misdemeanor.

3. Bradbury was convicted in Idaho in September, 1999, of three counts of unlawfully purchasing a resident license.

4. As part of a plea agreement, Bradbury pleaded guilty to Wanton Destruction of Protected Wildlife, in violation of Utah Code Ann. § 23-19-5 (1998), a class A misdemeanor.

5. Utah Code Ann. § 63-46b-16(4)(d) (1997) states: "The appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by any of the following: . . . the agency has erroneously interpreted or applied the law." (Emphasis added.).