Utah Law Developments
| Publication year | 2013 |
| Pages | 38 |
| Citation | Vol. 26 No. 6 Pg. 38 |
November, 2013
APPELLATE HIGHLIGHTS
Rodney R. Parker andjulianne P. Blanch.
EDITOR'S NOTE: The following appellate cases of interest were recently decided by the United States Tenth Circuit Court of Appeals, Utah Supreme Court, and Utah Court of Appeals
Bushco v. Shurtleff, __ F.3d __ 2013 WL4779612 (10th Cir. September 9, 2013)
A licensed sexually-oriented businesses sued the Utah Attorney General for declaratory and injunctive relief claiming that certain amendments to Utah's sexual solicitation statute were overly broad, unconstitutionally vague, and in violation of free speech rights. The Tenth Circuit held that (1) amendments to the sexual solicitation statute were not unconstitutionally overbroad because they did not encompass "a substantial amount" of constitutionally protected conduct, and only imposed "incidental restrictions" on First Amendment rights, id. at *13; (2) the provision describing the prohibited acts was not void for vagueness because it gave fair notice of what conduct it prohibits, noting, in particular, that the amendment had a "scienter" ("objectively verifiable") requirement - "with intent to engage in sexual activity for a fee" or "pay another person to commit any sexual activity for a fee" - thereby "mitigat[ing]" any potential vagueness and precluding arbitrary or discriminatory enforcement, id. at *11 (citation and internal quotation marks omitted); and (3) the subsection providing that "intent to engage in sexual activity for a fee may be inferred under the totality of the existing circumstances" was not unconstitutionally vague because by requiring that the fact-finder cannot infer intent from an isolated fact, it does not broaden police discretion to authorize or encourage arbitrary and discriminatory enforcement, id. at *12 (citation and internal quotation marks omitted).
United States v. Washington, __ Fed.Appx. __, 2013 WL 4828139 (10th Cir. September 11, 2013)
The Tenth Circuit held that a criminal suspect generally has no reasonable expectation of privacy to a motel room in which he or she is staying after check-out time. It also concluded that a suspect had no reasonable expectation of privacy in the evidence (a phone) where the suspect "clearly abandoned the phone under the sink, smashing the screen and making it unusable, and he apparently intended that it remain there after his rental period for the room expired." Id. at *1.
United States v. Avila, __ F.3d __ 2013 WL 4437610 (10th Cir. August 21, 2013)
The Tenth Circuit held that the district court's assurance that defendant would retain the right to appeal even if he entered an unconditional guilty plea, without advising defendant how such a plea would limit his appeal rights, falsely suggested that defendant would retain unlimited appeal rights and rendered his plea involuntary.
Turner v. University of Utah Hospitals & Clinics, 2013 UT 52 (August 16, 2013)
In this medical malpractice case, the Utah Supreme Court rejected the "cure-or-waive" rule, which required a party to expend all available peremptory challenges on jurors who had been unsuccessfully challenged for cause in order to preserve the issue of jury bias for appeal. The plaintiff had challenged four jurors for cause, but when those challenges were denied, she removed only two of the challenged jurors using peremptory challenges, and used her last challenge on a juror she suspected of harboring a "secret bias." The hospital argued that tactical use of peremptory challenges was not protected, and by failing to use all of her...
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