Henriod, Dissenting

• Publication year: 2006
• Pages: 4
• Citation: Vol. 19 No. 3 Pg. 4

Utah Bar Journal Volume 19.

Vol. 19, No. 3 - #4. Henriod, Dissenting

Utah Bar Journal
Volume 19, No. 3
May/June 2006

Henriod, Dissenting

by Bryan J. Pattison

The Honorable F. Henri Henriod served on the Utah Supreme Court from 1951-1976. In that time he became well known as one of the court's most frequently dissenting justices.1 On this subject, he stated, "There are very few of these controversies that are so one-sided that a plausible opinion cannot be written to show that there is also merit on the other side."2 That's putting it mildly for this jurist. In showing there was merit to the other side he crafted opinions that ranged from scholarly, to humorous, to condescending and accusatory

For example, in Maxfield v. Denver & Rio Grande Western R.R. Co.,3 a case involving federal law, Justice Henriod took the position that the majority was simply guessing at how the United States Supreme Court might rule if eventually faced with the question presented in that case. He accused the majority of merely picking and choosing from the opinions of six different U.S. Supreme Court justices in several different cases to come up with enough of them who "supported" the majority's opinion on the issue at hand. Justice Henriod opined: "I dissent, suggesting that the main opinion has given us a new and novel principle that of anticipatory stare decisis."4 He then cautioned "[t]he reasoning of the majority opinion wholly fails to take into account the fact that time often stills the voices of Justices of the Supreme Court."5

Though time would find it difficult to still Justice Henriod's voice, to ensure it does not remain buried within the pages of the Utah Reports, the following are excerpts from a few of the opinions in his substantial body of work. While each is unique, they all have one thing common - they reflect the writing of a jurist untethered by any strings of doubt, supremely confident in his analysis of law and fact and, ultimately, the correctness of his conclusions.

Driving Under the Influence
In State v. Twitchell,6 a defendant appealed his conviction for automobile homicide asserting that the statute under which he was convicted was unconstitutional because it unlawfully discriminated between those who were driving under the influence and "happened" to kill someone - which he had done - and those who did so but were not under the influence by making the former a felony. The majority affirmed his conviction. Coming to the defense of the seemingly indefensible, Justice Henriod dissented, offering the following comments on the statute in question:

The injustice of the statute could be illustrated by the fact that under its terms a person running a red light at 90 m.p.h., who had not had a drink, but who kills another, faces but a misdemeanor and a year in jail, while one who may not have thought of voluntary intoxication, at 10 m.p.h. may kill some one after leaving his doctor's office and after having had administered to him a drug for some ailment or other which actually but unwittingly made it unsafe for him to drive, would face a felony and a maximum of 10 years, - the statute not requiring any intentional or voluntary...