Article

• Jurisdiction: Utah,United States
• Citation: Vol. 36 No. 1 Pg. 28
• Pages: 28
• Publication year: 2023

Article Vol. 36 No. 1 Pg. 28 Utah Bar Journal January, 2023

January, 2023

Abortion, Actual Innocence, and Much More: Cases and Issues in the Pipeline at the Utah Supreme Court

by Carol Funk

Much of the time, the Utah Supreme Court's docket attracts little attention. Parties to pending cases, and lawyers with a specific interest in the subject matter, may watch for the release of an opinion of significance to them. But most members of the Bar, the press, and the public are generally unaware of cases and issues on the court's docket, at least until the Utah Supreme Court hears oral argument or issues its decision.

This year is different. Recent changes in the makeup of the five-member court, as well as substantial, highly publicized opinions of the United States Supreme Court, have generated significant interest in the Utah Supreme Court's proceedings and the questions of state law the court may address. The Bar, the press, and the public are now paying more attention to the Utah Supreme Court and the matters heading toward adjudication therein.

But when it comes to the practice of law, interest in and awareness of Utah Supreme Court proceedings should not depend on whether high-profile matters are pending or on whether the court's membership has changed. It is always useful for members of the Bar to be informed of cases and issues under review in the Utah Supreme Court. Attorneys can more effectively raise and preserve errors if they are aware that governing authority is being challenged in the state's highest court. Understanding soon-to-be-adjudicated issues is also critical when navigating proceedings, crafting arguments, assessing the strength or weakness of a claim or charge, or determining the settlement value of litigation.

PROVIDING VISIBILITY INTO THE CASES, ISSUES, AND ARGUMENTS IN THE UTAH SUPREME COURT

This article thus provides visibility into the cases and issues currently in the pipeline at the Utah Supreme Court. The article is divided into two parts. First, the article covers relevant background, including recent changes in the justices serving on the Utah Supreme Court and general information regarding the court's docket. Second, the article outlines specific issues that have been or are likely to be raised in many of the most significant cases on the Utah Supreme Court's docket. The article highlights more criminal than civil proceedings because of the wide applicability of the issues raised in many criminal proceedings on the court's docket.

The article is compiled based on matters listed as pending in the Utah Supreme Court in late October 2022. It should therefore capture the cases and issues that will be addressed in opinions issued by the Utah Supreme Court in 2023 and into 2024. But while the article highlights many cases and issues likely to be addressed in that period, it does not provide information on all fifty-plus matters now pending in the Utah Supreme Court.

That information is, however, important. And for those interested in accessing it, a list of all matters pending in the Utah Supreme Court as of late October 2022 is provided at https://rqn.com/appellate-practice/utsupct-open-cases. (Judicial and attorney discipline proceedings are not included.) The cases are identified by title, case number, and subject matter (e.g., civil, criminal, capital felony, etc.).

There are also links provided to at least one substantive document filed in each case. Accordingly, the petition, retention request, briefing, and/or other substantive document(s) filed in each case, including the petition and answer filed in State v. Planned Parenthood Association of Utah, in which the state asks the Utah Supreme Court to permit enforcement of the state's

CAROL FUNK is an experienced appellate attorney and chair of Ray Quinney & Nebeker's Appellate Practice. She also serves on the Utah Supreme Court's Advisory Committee on the Rules of Appellate Procedure.

"trigger law," may be found at the above-noted address. A review of those documents will provide insight into the issues and arguments that have been or are likely to be raised in each proceeding.

This information may also be accessed via this QR code:

UTAH SUPREME COURT 2023: AN OVERVIEW

Last year, two justices retired from the Utah Supreme Court: Constandinos "Deno" Himonas and Thomas R. Lee. The Governor appointed, and the senate confirmed, Diana Hagen and Jill M. Pohlman to fill the two vacancies. Both were serving as judges on the Utah Court of Appeals at the time of their appointments.

Only five women have been appointed to the Utah Supreme Court in its 125-year history. Three of those women now serve on the court together, comprising its first female majority: Justice Hagen, Justice Pohlman, and Justice Paige Petersen, who was appointed in 2017. They serve alongside Chief Justice Matthew B. Durrant, who was appointed to the court in 2000, and Associate Chief Justice John A. Pearce, who was appointed in 2015.

The Utah Supreme Court's term is not official or formal. But, as a matter of practice, it generally runs from September through August, and the court endeavors to issue opinions in the same term in which matters are argued. In other words, if a matter is argued between September and May (the court generally does not hear argument in July or August and often does not hear argument in June), the court will endeavor to issue its decision by the following September – or close in time thereafter. But there are usually some holdover cases, as the back-and-forth on matters with concurring or dissenting opinions, or a post-argument request for supplemental briefing, can lengthen the time needed to issue a decision.

In the most recent term, the departures of Justices Himonas and Lee increased the importance of the court's docket-clearing practice. The Utah Supreme Court was clearly focused on issuing opinions in all cases in which the two justices had participated in oral argument and on ensuring that any matters ripe for adjudication from a prior term were not held over to the court's next term.

In this effort, the court was quite successful. By late October 2022, only a handful of matters ripe for decision from the prior term had not yet been adjudicated – i.e., only a few cases fully briefed and argued prior to June 2022 were still awaiting a decision. None of those matters had been in that posture for an excessively long time; each had been argued within the last six to eight months. Thus, as of late October 2022, the Utah Supreme Court was fairly up to date on its caseload.

Looking at the court's docket more broadly, in addition to the few matters argued prior to June 2022 that are still awaiting a decision, there are forty-five to fifty additional cases currently pending. Some have been argued in the court's new term, i.e., in the fall of 2022. But most matters on the court's docket are not yet ripe for decision, either because they have not yet been fully briefed, have not yet been argued, are awaiting supplemental briefing, or have been stayed, etc. But as these cases move through the pipeline and are eventually submitted for adjudication, the court will be ready to address them.

UTAH SUPREME COURT 2023: SPECIFIC ISSUES

Following is a summary of several significant cases and issues currently on the Utah Supreme...