Utah State Appellate Procedure

• Publication year: 2000
• Pages: 8
• Citation: Vol. 13 No. 6 Pg. 8

Utah State Appellate Procedure Vol. 13 No. 6 Pg. 8 Utah Bar Journal July, 2000

June 2000.

Scott M. Ellsworth.

Introduction

Every survivor of law school knows that American jurisprudence recognizes three different kinds of law: legislation (statutes and ordinances), general provisions enacted by elected representatives; regulation (administrative codes), rules formulated by the executive to enforce legislation; and adjudication (case law), precepts derived from judicial interpretation or construction of legislation, regulation, or prior adjudication. While legislation and regulation, however, ordinarily become generally applicable law simply by virtue of enactment, adjudication binds only the parties to the dispute until the issue or issues upon which their particular disagreement turns have been placed before and decided by an appellate court, charged with the authority to set binding precedent.

A controversy appropriately raised to the level of an appeal provides a judicial forum in which law - legislation, regulation, or adjudication - may be interpreted or construed, clarified or explained, vindicated, altered, or overturned. Each issue addressed in a published opinion is like a thread in the tapestry of established precedent; a thread which affects, one way or another, the pattern and fabric of the case law - reinforcing or unraveling what went before. In a very real sense, participating in the appellate process is one of the most significant activities in which an attorney may participate.

It seems odd, then, that although most young attorneys have participated at some point in a moot court class or competition, such courses tend to focus heavily on substantive law and rhetorical posture rather than matters procedural, unintentionally depriving the students of a basic understanding of the mechanism by which litigation becomes lawmaking.

This article addresses this deficiency by focusing almost entirely on the procedural mechanism of appeal. In particular, this article addresses the various considerations and procedures necessary to filing an appeal, and appellate motions. Of course, the brief summary and discussion herein should be used to direct and facilitate research into the statutes, rules, and cases governing appeals, and not as a substitute for them.

1. Filing an Appeal

1.1 A Few Statistics

Obviously, the first consideration in planning an appeal should be the chances of success. An appropriate appeal is an opportunity for careful judicial review and reconsideration of your client's case; an inappropriate appeal, on the other hand, is little more than a waste of resources for all involved. This is not to say that a loss on appeal automatically indicates a pointless appeal; on the contrary, the outcome of an appeal depends upon legal as well as factual considerations, application of settled (or sometimes unsettled) law to peculiar fact scenarios, linguistic and historical factors, and prudent analysis of the ramifications of affirmance or reversal, often requiring scrutiny through the lens of public policy.

In short, an arguable case does not guarantee the desired result.

Indeed, in 1998, the Court of Appeals affirmed three quarters of the cases brought before it; the Supreme Court, nearly half:

1998	Supreme Court	Court of Appeals
Affirmed	47%	76%
Affirmed & Reversed	8%	7%
Reversed or Reversed & Remanded	36%	12%
Other Dispositions	9%	5%

Reversals accounted for only 12% of Court of Appeals dispositions, although the Supreme Court reversed 36% of the cases it heard. However, because the jurisdiction of the Supreme Court and the Court of Appeals is complementary rather than hierarchical (i.e., a case before the Supreme Court does not necessarily come from the Court of Appeals, see § 1.2, below), it should not be supposed that the Supreme Court is likely to reverse the Court of Appeals. Quite the opposite is true: between 1992 and 1996, petitions for certiorari averaged 107 per year. On average, 85 of these petitions were denied each year, and of those granted each year, only about 5 ended with a reversal (that's less than 5%). And, in fact, in 1996, there were no reversals. Norman H. Jackson, "Tenth Anniversary of the Utah Court of Appeals," Utah Bar Journal, March 1997, at 19, 20-21.

Again, however, these numbers should not be read to discourage warranted appeals, but to encourage prudent review of a case prior to appealing.

1.2 Jurisdiction: Which Court?

At present, Utah has two appellate courts: the Supreme Court, established by the State Constitution, Utah Const. Art. VIII, § 1, and the Court of Appeals, created in 1986 by statute, 1986 Utah Laws ch. 47, §§ 44-48; see Utah Code Annotated § 78-2a-1 (1999). The appellate jurisdiction of the two Courts is complementary rather than purely hierarchical: certain types of cases must be appealed directly to the Supreme Court; others, to the Court of Appeals. The Supreme Court may, until a case is set for oral argument, assign (or "pour over") most types of cases over which it has original appellate jurisdiction to the Court of Appeals, Utah Code Annotated § 78-2-2(4), URAP Rule 42(a). Reciprocally, the Court of Appeals may, prior to final judgment, certify certain types of cases over which it has original appellate jurisdiction to the Supreme Court, Utah Code Annotated § 78-2a-3(3), URAP Rule 43(a). However, although the Supreme Court has jurisdiction to hear an appeal from a final decision of the Court of Appeals, such an appeal is not of right, but by petition for a writ of certiorari. Utah Code Annotated § 78-2-2(3) (a) & (5), URAP Rules 45 & 46(a).

The following table sets forth the complementary jurisdictional domains of Utah's two appellate courts:

The SUPREME COURT has appellate jurisdiction (including interlocutory appeals) over:	The COURT OF APPEALS has appellate jurisdiction (including interlocutory appeals) over:
• Judgments of the Court of Appeals, UCA § 78-2-2 (3) (a);
BUT
The Supreme Court has discretion to either grant or deny a petition for writ of certiorari, UCA § 78-2-2 (5); URAP Rules 45 & 46.
• The Supreme Court may transfer ("pour over") to the Court of Appeals any of the matters over which the Supreme Court has original appellate jurisdiction, except: • Judgments of the Court of Appeals; • Cases certified to the Supreme Court by the Court of Appeals; • Matters involving capital felonies; • Election and voting contests; • Reapportionment of election districts; • Retention or removal of public officers; • Matters involving legislative subpoenas; • Discipline of lawyers; and • Final orders of the Judicial Conduct Commission. UCA §78-2-2(4).	• Cases transferred to the Court of Appeals from the Supreme Court. UCA§78-2a-3(2)(j).
• Cases certified to the Supreme Court by the Court of Appeals prior to final judgment by the Court of Appeals, UCA § 78-2-2(3) (b) - the Supreme Court must review such cases, UCA § 78-2-2(5).	• The Court of Appeals, prior to final judgment, and by vote of four of its judges, may certify to the Supreme Court for determination those cases

• Which are of such a nature that it is apparent that the case should be decided by the Supreme Court; • Which will govern other pending cases involving the same legal issue or issues; or • Which are cases of first impression which will have wide applicability. UCA § 78-2a-3(3); URAP Rule 43(c).
• Final judgments or decrees of any court of record holding a statute of the United States or this state unconstitutional on its face under the Constitution of the United States or the Utah Constitution. UCA § 78-2-2 (3) (g).
• Domestic relations cases from district court, including, but not limited to, divorce, annulment, property division, child custody, support, visitation, adoption, and paternity. UCA § 78-2a-3(2)(h).
• Criminal appeals involving first degree or capital felonies: • Convictions in a district court of a first degree or capital felony; and • Interlocutory appeals from any court of record involving a first degree or capital felony. UCA §78-2-2 (3) (h) & (i).	• Criminal appeals, of right or interlocutory, from any court of record, not involving first degree or capital felonies. UCA § 78-2a-3(2)(e). • Orders on petitions for extraordinary writs • Which are sought by persons serving criminal sentences, except challenges to convictions or sentences for first degree or capital felonies; and • Which challenge decisions of the Board of Pardons and Parole, except in cases involving first degree or capital felonies. UCA§78-2a-3(2)(f)&(g).
• Appeals from the juvenile courts. UCA § 78-2a-3(2) (c).
• Decisions of the Utah Military Court. UCA § 78-2a-3(2) (i).
• Orders, judgments, and decrees of any court of record over which the Court of Appeals does not have original appellate jurisdiction. UCA § 78-2-2(3) (j).
• Final orders and decrees from formal adjudicative proceedings originating with any of the following state agencies: • The Public Service Commission; • The State Tax Commission; • The School and Institutional Trust Lands Board of Trustees; • The Board of Oil, Gas, and Mining; • The State Engineer; or • The Executive Director of the Department of Natural Resources reviewing actions of the Division of Forestry, Fire and State Lands; AND • Final orders and decrees from a district court's review of informal adjudicative proceedings of any of these agencies. UCA §78-2-2 (3) (e)&(f).	• Final orders and decrees resulting horn formal adjudicative proceedings of any state agency EXCEPT...