Utah Standards of Appellate Review - Third Edition
| Publication year | 2011 |
| Pages | 8 |
Vol. 24, No. 1, 8. Utah Standards of Appellate Review - Third Edition
Volume 24 No. 1
Jan/Feb 2011
EdITOR'S NOTE: This article is the fourth and final installment of a series of articles that first appeared in Volume 23, No. 4 July/August 2010 of the Utah Bar Journal. You can find Judge Jackson's two prior Appellate Review articles, as well as the entire current article, at http://utahbar.org/barjournal/ Utah_Standards_of_Appellate_Review.html
II. Appeals From State Administrative Agencies
Judicial review of administrative decisions for cases is governed by the Utah Administrative Procedures Act (UAPA), see Utah Code ann. § 63G-4-102(1)(b) (2008); see also Utah Chapter of the Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 13, 226 P.3d 719; In re Questar Gas Co., 2007 UT 79, ¶ 28, 175 P.3d 545; Orchard Park Care Ctr. v. Dep't of Health, 2009 UT App 284, ¶ 8, 222 P.3d 64.
As an initial note, for a reviewing court to grant relief under UAPA, it must determine that the party has been "substantially prejudiced" by the agency action in question. See Utah Code ann. § 63G-4-403(4)(d); accord Nat'l Parks Conservation Ass'n v. Bd. of Trs., 2010 UT 13, ¶ 15, 231 P.3d 1193; Sullivan v. Utah Bd. of Oil, Gas and Mining, 2008 UT 44, ¶ 10, 189 P.3d 63; Questar Gas, 2007 UT 79, ¶ 48; Orchard Park, 2009 UT App 284, ¶ 8; Whitaker v. Utah State Ret. Bd., 2008 UT App 282, ¶ 10, 191 P.3d 814; Mendoza v. Labor Comm'n, 2007 UT App 186, ¶ 5, 164 P.3d 447. In other words, appellate courts must be able to determine that the alleged error was not harmless. See Nat'l Parks, 2010 UT 13, ¶ 15; Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 12, 148 P.3d 960.
Further, the principle of exhausting administrative remedies is embodied in the general provisions of UAPA. A party may seek judicial review only after exhausting all administrative remedies available. See Utah Code ann. § 63G-4-401; id. § 63G-3-602(2) (a); Frito-Lay v. Utah Labor Comm'n, 2009 UT 71, ¶ 30, 222 P.3d 55 (stating that the exhaustion requirement mandates that the litigant follow all outlined administrative review procedures prior to state court having subject matter jurisdiction to hear the case); Salt Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 6, 184 P.3d 599 (noting that a party must exhaust administrative remedies before challenging a municipality's land use decision); Nebeker v. Utah State Tax Comm'n, 2001 UT 74, ¶ 14, 34 P.3d 180; Pen and Ink, LLC v. Alpine City, 2010 UT App 203, ¶ 15, 238 P.3d 63 (mem.), cert. denied, 2010 Utah LEXIS 172 (Utah, Oct. 27, 2010); Holladay Towne Ctr., LLC v. Holladay, 2008 UT App 301, ¶ 6, 192 P.3d 302 (mem.) (providing that Utah law requires an aggrieved party to exhaust administrative remedies before challenging a land use decision in court); Decker v. Rolfe, 2008 UT App 70, ¶ 10, 180 P.3d 778 (stating that UAPA permits aggrieved parties to seek judicial review only after exhausting all administrative remedies except in a limited number of circumstances, including when other pertinent statutes do not require exhaustion); TDM, Inc. v. State Tax Comm'n, 2004 UT App 433, ¶ 4, 103 P.3d 190 (mem.) (per curiam) (noting that while parties need not exhaust administrative remedies if "it appears that exhaustion would serve no useful purpose," the introduction of a constitutional issue "does not necessarily avoid the requirement to exhaust administrative remedies").
A. Review of Informal Agency Proceedings
UAPA allows state agencies to promulgate rules designating as informal certain adjudicative proceedings. See Utah Code ann. § 63G-4-202(1). Under UAPA, the district courts have jurisdiction to "review by trial de novo all final agency actions resulting from informal adjudicative proceedings." Id. § 63G-4-402(1) (a); accord Friends of Great Salt Lake v. Utah Dep't of Natural Res., 2010 UT 20, ¶ 14, 230 P.3d 1014; Taylor-West Weber Water Improvement Dist. v. Olds, 2009 UT 86, ¶ 6, 224 P.3d 709; Due S., Inc. v. Dep't of Alcoholic Beverage Control, 2008 UT 71, ¶ 17, 197 P.3d 82. Section 63G-4-402(3)(a) requires that the trial court's review of informal adjudicative proceedings be accomplished by holding a new trial, not just by reviewing an informal record. See Due S., Inc., 2008 UT 71, ¶ 17; Gilley v. Blackstock, 2002 UT App 414, ¶ 9, 61 P.3d 305; Sorenson's Ranch Sch. v. Oram, 2001 UT App 354, ¶ 16, 36 P.3d 528. The review of an informal agency proceeding by a new trial at the trial court level ensures that an adequate record will be created for appellate court review. See Archer v. Bd. of State Lands and Forestry, 907 P.2d 1142, 1144 (Utah 1995); Cordova v. Blackstock, 861 P.2d 449, 452 (Utah Ct. App. 1993).
The trial court's final orders and decrees from review of informal adjudicative proceedings of agencies may be appealed to the appellate courts. See Utah Code ann. § 78A-3-102(3)(f) (2009); id. § 78A-4-103(2)(a); Taylor-West, 2009 UT 86, ¶ 2.
B. Review of Formal Agency Proceedings
Sections 63G-4-401, 403, and 404, see Utah Code ann. §§ 63G-4-401, 403, 404 (2008) (formerly § 63-46b-16(4) (1997)), of UAPA outline the circumstances under which a reviewing court may grant relief from formal agency action.See Desert Power LP v. Pub. Serv. Comm'n, 2007 UT App 374, ¶ 11, 173 P.3d 218 (citing Anderson v. Pub. Serv. Comm'n, 839 P.2d 822, 824 (Utah 1992)). Some standards of review are explicitly set forth in section 63G-4-403(4). Others have been provided by appellate courts in interpreting the statute. See, e.g., Exxon Corp. v. Utah State Tax Comm'n, 2010 UT 16, ¶ 6, 228 P.3d 1246 (providing that the commission's interpretation of general law including "case law, constitutional law, or non-agency specific legislative acts" is reviewed under a correction of error standard with no deference given to the agency's decision (internal quotation marks omitted)); Merrill v. Utah Labor Comm'n, 2009 UT 26, ¶ 5, 223 P.3d 1089 (stating that the commission's conclusions as to legality or constitutionality of statute should be reviewed for correctness, with no deference to commission (citing Amax Magnesium Corp. v. Utah State Tax Comm'n, 796 P.2d 1256, 1258 (Utah 1990))); Resort Retainers v. Labor Comm'n, 2010 UT App 229, ¶ 11, 238 P.3d 1081 (reviewing an agency's application of its own rules to the facts is reviewed under "an intermediate standard, one of some, but not total deference" (internal quotation marks omitted)). The remainder of this administrative outline discusses the standards of review for formal agency proceedings and the diagram on the following page provides a flow chart for standards of review for formal agency proceedings.
1. Challenging Findings of Fact
a. Substantial Evidence Standard
Under UAPA, an agency's factual findings will be affirmed only if they are supported by "substantial evidence when viewed in light of the whole record before the court." Utah Code ann. § 63G-4-403(4)(g); accord Utah Chapter of the Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 13, 226 P.3d 719; Mandell v. Auditing Div. of the Utah State Tax Comm'n, 2008 UT 34, ¶ 11, 186 P.3d 335; Resort Retainers, 2010 UT App 229, ¶ 13, (stating factual findings must be "supported by substantial evidence based upon the record as a whole"); Hymas v. Labor Comm'n, 2008 UT App 471, ¶ 12, 200 P.3d 218, cert. denied, 2009Utah LEXIS 75 (Utah, Apr. 1, 2009); Desert Power LP, 2007 UT App 374, ¶ 12.
"'Substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.'" Pen and Ink, LLC v. Alpine City, 2010 UT App 203, ¶ 16, 238 P.3d 63 (mem.) (quoting Caster v. W. Valley City, 2001 UT App 212, ¶ 4, 29 P.3d 22), cert. denied, 2010 Utah LEXIS 172 (Utah, Oct. 27, 2010); accord kennon v. Air Quality Bd. 2009 UT 77, ¶ 28, -P.3d-; WWC Holding Co., Inc. v. Pub. Serv. Comm'n of Utah, 2002 UT 23, ¶ 8, 44 P.3d 714; Pac. W. Communities, Inc. v. Grantsville City, 2009 UT App 291, ¶ 22, 221 P.3d 280, cert. denied, 2010 Utah LEXIS 29 (Utah, Jan. 20, 2010); Desert Power LP, 2007 UT App 374, ¶ 11. Substantial evidence is more than a "mere scintilla of evidence," though "something less than the weight of the evidence." Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 35, 164 P.3d 384 (internal quotation marks omitted); Harmon City, Inc. v. Draper City, 2000 UT App 31, ¶ 60, 997 P.2d 321.
When reviewing an agency's decision under the substantial evidence test, the reviewing court "does not [conduct] a de novo review or a reweighing of the evidence." Associated Gen. Contractors v. Bd. of Oil, Gas and Mining, 2001 UT 112, ¶ 21, 38 P.3d 291 (internal quotation marks omitted); accord Huemiller v. Ogden Civil Serv. Comm'n, 2004 UT App 375, ¶ 2, 101 P.3d 394 (mem.). An appellate court will not substitute its judgment "as between two reasonably conflicting views," even though it may have come to a different conclusion had the case come before it for de novo review. Carter v. Labor Comm'n Appeals Bd., 2006 UT App 477, ¶ 17, 153 P.3d 763 (internal quotation marks omitted). "It is the province of the Board, not appellate courts, to resolve conflicting evidence, and where inconsistent inferences can be drawn from the same evidence, it is for the Board to draw the inferences." EAGALA, Inc. v. Dep't of Workforce Servs, 2007 UT App 43, ¶ 16, 157 P.3d 334 (quoting Grace Drilling Co. v. Bd. of Review of the Indus. Comm'n, 776 P.2d 63, 68 (Utah Ct. App. 1989)); accord Carter, 2006 UT App 477, ¶ 17. When applying the substantial evidence test under UAPA, appellate courts must consider not only the evidence supporting the board's findings but also the evidence that fairly detracts from the weight of the board's evidence. See Rd. Runner Oil, Inc. v. Bd. of Oil,...
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