Tomorrow, the Utah Court of Appeals will issue the following seven decisions:
Berg v. Berg, 20110231
In re Estate of Eleanor Strand, 20110215
Jensen v. Gardner, 20100924
Mower v. Simpson, 20100532
Nelson v. Orem City, 20100976
State v. Campbell, 20100840
Tomlinson v. WFSV, 20120183
The Utah Supreme Court recently issued an opinion in State v. Moa, 2012 UT 28, a criminal case involving the withdrawal of a no contest plea. The court considered whether the court of appeals had correctly concluded that the defendant’s motion to withdraw that plea was properly denied. Id. ¶ 32. In addressing that issue, the court applied its test for invited error in a way that appears inconsistent.
Although Moa involved consolidated cases and a substantial factual background, the important facts for purposes of understanding the invited error analysis are relatively straightforward. Mr. Moa entered a plea of no contest to the crime of discharging a firearm in the direction of a building, a third-degree felony. Id. ¶ 9. Through a series of substitutions in defense counsel and complex amendments to the plea deal, that charge was slightly different from an earlier proposed plea based on discharging a firearm from a vehicle. Id. ¶ 7. The earlier plea would have resulted in a sentence of zero to five years, but the plea defense counsel ultimately negotiated resulted in a sentence of three to five years. Id. ¶ 10. Unhappy with the increased minimum term, Mr. Moa moved to withdraw his plea on several bases. Id. The court appointed new counsel to represent Mr. Moa with respect to the motion to withdraw the plea. Id. ¶ 11.
At the hearing on the motion to withdraw, the newly appointed defense attorney stipulated that the plea was taken in compliance with rule 11 of the Utah Rules of Criminal Procedure. Id.
The Court of Appeals Opinion
Before the court of appeals, Mr. Moa argued for the first time that the district court failed to comply with rule 11 in taking the plea. State v. Moa, 2009 UT App 231, ¶ 3. Mr. Moa also argued that the attorney who represented him at the plea hearing was ineffective. Id. Because the issue had not been raised before the trial court, the court of appeals analyzed the issue under the doctrine of plain error. Id. ¶ 14. The court of appeals concluded that the trial court erred because there were internal inconsistencies in the plea colloquy and the plea affidavit and that the error should have been obvious to both the court and counsel. Id. ¶ 15. The court of appeals nonetheless affirmed on the basis that the error was not harmful. Id. Stating that the prejudice issue was a “more difficult” question, the court concluded the error was harmless because Mr. Moa failed to show that his plea would have been different in the absence of the error. Id. ¶ 16-17. Because the claim of ineffective assistance of counsel also would have required a showing of prejudice, the court of appeals concluded it did not need to analyze the ineffective assistance claim. Id. ¶ 17 & n.3. The court of appeals did not mention the invited error doctrine, even though the State raised it in its response brief in the court of appeals.
The Supreme Court Opinion
The Supreme Court granted certiorari on the question whether “the court of appeals erred in holding that Mr. Moa had failed to demonstrate plain error.” State v. Moa, 2012 UT 28, ¶ 3. And, as it often does, the court announced in its standard of review that, on certiorari, it reviews “the court of appeals’ decision.” Id. ¶ 21. To perform that task, the court would have had to analyze the court of appeals’ reasoning, asking: (i) was there an error; (ii) was it obvious; and (iii) was it harmful. Instead, the court engaged in an invited error analysis and concluded that because the second defense counsel stipulated in the trial court that the plea complied with rule 11, any error related to rule 11 was invited. Id. ¶¶ 23-33. In other words, the Supreme Court held that Mr. Moa could not claim that the trial court had plainly erred, but remained silent on whether the court of appeals’ plain error analysis, and especially its view concerning prejudice, was correct.
That approach to the analysis is interesting. On one hand, the Supreme Court reaffirmed language from its earlier decisions indicating that it has the authority to correct an error even when the error is invited. Rather than characterizing invited error as a bar to appellate review, the court has long characterized itself as “‘declin[ing] to engage in plain error review’” when the error is invited. Id. ¶ 25 (emphasis added) (citing Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366). Similarly, in Moa the court stated that “an appellate court need not” review an error that it concludes is invited and that the doctrine “therefore can preclude even plain error review.” Id. ¶ 27 (emphasis added). That language implies that there is some discretion built into the doctrine and that, while the court “need not” review an invited error, it has some discretion to undertake that review. Id. That discretion likely serves an important role–even an invited error might be so egregious that it warrants reversal.
On the other hand, the court’s refusal to review the court of appeals’ decision carries the opposite implication. If the court of appeals had such discretion, and if the supreme court truly was reviewing the court of appeals’ decision, the supreme court’s review should have addressed what the court of appeals actually did, i.e., refuse to apply the invited error doctrine in light of the State’s request that it do so. At the very least, the Supreme Court should have considered the bounds of the court of appeals’ discretion to reach an otherwise invited error.
For that reason, this portion of the court’s opinion ends on an especially odd note. In paragraph 32 of its opinion, the court notes that Mr. Moa seeks to evade the invited error doctrine by arguing that his stipulation that invited the error occurred during the motion to withdraw the plea, but not at the plea hearing when the error occurred. Id. ¶ 32. The court corrects “Mr. Moa’s framing of the error,” pointing out that because Mr. Moa technically appealed from the denial of the motion to withdraw the plea–instead of from the entry of the plea itself–it was counsel’s conduct at the hearing on that motion that mattered. Id. But under that same rationale, it is far from obvious that the invited error doctrine should have been at issue on certiorari. After all, the supreme court was reviewing the court of appeals decision, and Mr. Moa had not invited any error before the court of appeals and the court of appeals had declined the State’s invitation to employ the invited error doctrine.
The Utah Supreme Court has published its oral argument calendar for June 2012. It can be found here.
Tomorrow, the Utah Supreme Court will release the following opinion:
Turner v. Staker & Parson Companies, 20110275
Last week, I published a short article in the Utah Bar Journal arguing that originalism may not suggest the same interpretive role for state judges interpreting state constitutions as it does for federal judges interpreting the U.S. Constitution. I reproduced much of the content of the article in a recent post. Related posts include one on the relationship between the Utah Constitution and Utah common law, one on Originalism and the primacy model for interpreting the Utah Constitution, and one on the unique challenges of appealing to ordinary meaning in statutory interpretation.
The argument in the Utah Originalism article is quite simple. To the extent that originalism requires judges to adhere to original interpretive methods when discerning the original understanding of a particular provision, different judges may be authorized to employ different methods because the original methods for interpreting different constitutions may differ. The most important point in the article is that, because the scope of judicial authority to declare statutes unconstitutional in 1896 when the Utah Constitution was ratified was different than it was in 1789 when the U.S. Constitution was ratified, it would be a mistake mechanically to apply originalist conclusions about the proper scope of judicial review for federal judges into discussions of the proper scope of judicial review for Utah judges. Another point made in the article is that other contextual and structural considerations raised by some originalists also do not apply to the Utah Constitution, such as the fact that federal judges are unelected and not politically accountable and that because the federal constitution is extremely difficult to amend any argument that citizens tacitly consent to judicial interpretations by failing to amend the constitution are extremely weak. Because justices of the Utah Supreme Court were originally elected and the Utah Constitution is comparatively easy to amend, the same arguments cannot be mechanically inserted into originalist discussions concerning the Utah Constitution.
Lawrence Solum at the Legal Theory Blog, a highly recommended and excellent blog, finds the project interesting, but notes that “the difficulty of amendment is usually cited as an argument against originalism (the “dead hand” objection); so it might be argued that originalism is more appropriate when democratic constitutional change is relatively easier to obtain.” Professor Solum is certainly correct that different arguments suggest originalism is more or less appropriate given the difficulty of constitutional amendment. But my article assumes originalism is appropriate and then provides some examples of how the context in which state constitutions were ratified may be different in ways that affect an originalist analysis.
It is a mistake to argue that the framers of the Utah Constitution never would have understood justices of the Utah Supreme Court to have authority to consider policy implications when interpreting the Utah Constitution on the following grounds: (i) the justices were not politically accountable, (ii) their interpretations were not subject to a political check of amendment, and (iii) the understood scope of judicial review was very narrow. While those considerations were part of the context surrounding the ratification of the U.S. Constitution, they were not part of the context surrounding the ratification of the Utah Constitution. For that reason, any originalism that considers relevant original methods is likely to yield different results for different constitutions. Although I have not shown that justices of the Utah Supreme Court are authorized to consider policy implications (or otherwise employ common law methods of interpretation) when interpreting the Utah Constitution, I hope to have shown that some arguments advanced against that conclusion are unpersuasive.
Michael Ramsey at the Originalism Blog, also highly recommended, points to Professor Solum’s concerns. I would like to thank both Professor Solum and Professor Ramsey for taking an interest in the article.
The list of petitions for certiorari that the Utah Supreme Court has granted or denied from March 1, 2012 to April 30, 2012 is now available here. During this period, the court granted certiorari in one case and denied certiorari in ten others.
The list of petitions for certiorari decided upon in January and February 2012 is available here. Our earlier commentary on two of those cases, State v. Simons and State v. Berriel, is available here and here.
This year, the Utah Supreme Court has granted five of the 29 petitions for writs of certiorari that it has considered so far.
Deseret First Federal Credit Union v. Parkin
The Utah Supreme Court will not be issuing any opinions this week. Tomorrow, the Utah Court of Appeals will release the following six decisions:
Deseret First Credit Union v. Parkin, 20120110
Express Recovery v. Wall, 20120135
In re T.R. (M.R. v. State), 20120187
Monavie v. Iverson, 20110522
Ordonez v. Workforce Services, 20120164
Stanley v. Workforce Services, 20120075
We do not discuss appeals we handle, but we do want to congratulate Linda Jones for a nice victory in State v. Alexander last Friday.
Our neighbor in the Kearns Building, Paul C. Farr, has published a follow up to Chief Justice Durrant‘s recent op-ed urging citizens to embrace jury duty as part of civic responsibility and explaining the process. A copy of Paul’s letter can be found here. Our previous post on Justice Durrant’s op-ed is here.
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