Packer v. Utah Attorney General's Office

• Citation: 307 P.3d 704
• Decision Date: 01 August 2013
• Docket Number: No. 20110774–CA.,20110774–CA.
• Parties: Lynn Kenneth PACKER, Petitioner and Appellant, v. UTAH ATTORNEY GENERAL'S OFFICE, Respondent and Appellee.
• Court: Utah Court of Appeals

307 P.3d 704

Lynn Kenneth PACKER, Petitioner and Appellant,

v.UTAH ATTORNEY GENERAL'S OFFICE, Respondent and Appellee.

No. 20110774–CA.

Court of Appeals of Utah.

Aug. 1, 2013.

Lynn Kenneth Packer, Appellant Pro Se.

John E. Swallow and Laura B. Dupaix, for Appellee.

Peggy E. Stone, for Amicus Curiae.

Judge WILLIAM A. THORNE JR. authored this Opinion, in which Judges GREGORY K. ORME and JAMES Z. DAVIS concurred.

Opinion

THORNE, Judge:

¶ 1 Lynn Kenneth Packer filed several motions in the district court pertaining to a criminal investigation in which he was the complaining witness. The district court dismissed Packer's motions for lack of standing, and Packer appeals. We agree with the district court that Packer lacks standing, and we therefore dismiss his appeal.

BACKGROUND

¶ 2 Packer developed and patented a new lecture capture technology that he was preparing to market in early 2010. In February 2010, Weber State University (Weber State) solicited bids for a lecture capture equipment system. Packer submitted a bid for the Weber State contract.

¶ 3 Packer suspected that Weber State's bid process was designed so that only one supplier could submit a successful bid. To investigate this suspicion, Packer submitted a request for documents and other information from Weber State pursuant to the Government Records Access and Management Act (GRAMA), seeUtah Code Ann. §§ 63G–2–101 to –901 (LexisNexis 2011 & Supp. 2012). ¹ Weber State produced some documents in response, but Packer believed that the file he received was incomplete, and in March 2010, he submitted a second GRAMA request to Weber State.

¶ 4 A few days after he submitted his second GRAMA request, Packer contacted the Utah Attorney General's Office (the Attorney General) to report his suspicion that Weber State was rigging its bid process. The Attorney General began an investigation into the matter, which ultimately developed into a formal criminal investigation. As part of that investigation, the Attorney General subpoenaed both Packer and Weber State pursuant to the Investigative Subpoena Powers Act (the Subpoena Act), see id. §§ 77–22–1 to –5 (2012). ² The Attorney General also obtained secrecy orders pursuant to the Subpoena Act, prohibiting Packer and Weber State from disclosing the substance of their testimony or the evidence they produced.

¶ 5 Upon receiving notice of the criminal investigation, Weber State denied Packer's second GRAMA request pursuant to Utah Code section 63G–2–305(9). See id. § 63G–2–305(9) (Supp.2012) (protecting records under certain circumstances relating to investigations and audits). In September 2010, Packer filed a motion in the district court to narrow the scope of the secrecy order and unseal some of the documents. Packer and the Attorney General stipulated to the bulk of the relief requested in Packer's motion. In March 2011, Packer filed motions seeking to sanction and disqualify counsel for both the Attorney General and Weber State because of an alleged conflict of interest, to have a special prosecutor appointed, and to require the Attorney General to comply with the Subpoena Act by filing descriptions of documents and transcripts of testimony obtained pursuant to its subpoenas.

¶ 6 Both the Attorney General and Weber State sought to strike or dismiss Packer's motions, arguing that Packer lacked standing to bring the motions. The district court agreed, concluding that Packer did not meet the traditional test for standing because he was not adversely affected by the challenged actions. The district court further concluded that Packer did not meet the alternative standing test because he did not have a real and personal interest in the dispute. Packer appeals the district court's ruling.

ISSUE AND STANDARD OF REVIEW

¶ 7 Packer argues that the district court erred when it concluded that he lacked standing to pursue the relief he sought in his motions. “ ‘Standing is a question of law that we review for correctness, affording deference for factual determinations that bear upon the question of standing, but minimal deference to the district court's application of the facts to the law.’ ” Magna Water Co. v. Strawberry Water Users Ass'n, 2012 UT App 184, ¶ 6, 285 P.3d 1 (quoting City of Grantsville v. Redevelopment Agency of Tooele City, 2010 UT 38, ¶ 9, 233 P.3d 461).

ANALYSIS

¶ 8 The district court concluded that Packer lacked standing to bring his motions seeking to require the Attorney General to comply with the Subpoena Act, to disqualify counsel, and to appoint a special prosecutor. “ ‘[S]tanding is a jurisdictional requirement that must be satisfied before a court may entertain a controversy between two parties.’ ” Davis v. Sperry, 2012 UT App 278, ¶ 13, 288 P.3d 26 (alteration in original) (quoting Jones v. Barlow, 2007 UT 20, ¶ 12, 154 P.3d 808). “ ‘On appeal, a party whose standing is challenged must show that he or she had standing ... in the original proceeding before the district court.’ ” Chen v. Stewart, 2005 UT 68, ¶ 50, 123 P.3d 416 (quoting Society of Prof'l Journalists, Utah Chapter v. Bullock, 743 P.2d 1166, 1171 (Utah 1987)); see also Specht v. Big Water Town, 2007 UT App 335, ¶ 14, 172 P.3d 306 (dismissing appeal for lack of jurisdiction where appellant lacked standing to bring his action in the district court). Packer argues on appeal that he has standing under both the traditional standing test and the alternative standing test. See generally Utah Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶¶ 19–20, 36, 148 P.3d 960 (discussing the traditional and alternative standing tests).

I. Traditional Standing

¶ 9 The traditional test for standing has three parts. Hogs R Us v. Town of Fairfield, 2009 UT 21, ¶ 8, 207 P.3d 1221.

First, the party must assert that it has been or will be adversely affected by the [challenged] actions. Second, the party must allege a causal relationship between the injury to the party, the [challenged] actions and the relief requested. Third, the relief requested must be substantially likely to redress the injury claimed.

Id. (alterations in original) (citation and internal quotation marks omitted). “The traditional test is often referred to as the ‘distinct and palpable injury’ requirement,” Utah Chapter of Sierra Club, 2006 UT 74, ¶ 19, 148 P.3d 960, because a party asserting traditional standing must allege “some distinct and palpable injury that gives [him] a personal stake in the outcome of the legal dispute,” id. (citation and internal quotation marks omitted).

¶ 10 Here, the district court determined that Packer lacked traditional standing to bring his motions. As to the motion to enforce compliance with the Subpoena Act, the district court concluded that the real objective of Packer's motion was to obtain the documents he had sought in his second GRAMA request and that those documents would remain protected throughout the course of the criminal investigation even if Packer's motion was granted. SeeUtah Code Ann. § 63G–2–305(9) (LexisNexis Supp. 2012) (protecting records under certain circumstances relating to investigations and audits). Therefore, the district court concluded that the relief requested was not “substantially likely to redress the injury claimed.” Hogs R Us, 2009 UT 21, ¶ 8, 207 P.3d 1221.

¶ 11 As to the motions to disqualify counsel and appoint a special prosecutor, the district court observed that the “general rule” is that a person lacks standing to disqualify counsel unless the person has an attorney-client privilege with the attorney to be disqualified. See Booth v. Continental Ins. Co., 167 Misc.2d 429, 634 N.Y.S.2d 650, 653 (N.Y.Sup.Ct.1995) (“[T]he general rule must be recognized that absent an attorney-client relationship, standing is generally lacking on disqualification motions.”); 7A C.J.S. Attorney and Client § 175 (2004) (“Generally, only a party who is a client of an attorney who undertakes to represent conflicting interests may be entitled to object to such representation....”). The district court additionally found that Packer “does not allege that he has sustained, or will sustain, an injury as a result of the alleged conflict of interest.”

¶ 12 We agree with the district court that Packer lacks traditional standing. None of his motions allege any “distinct and palpable injury that gives [him] a personal stake in the outcome.” Utah Chapter of Sierra Club, 2006 UT 74, ¶ 19, 148 P.3d 960 (citation and internal quotation marks omitted). To the extent that the motions can be read as an attempt to obtain the documents sought in Packer's second GRAMA request—a reading that Packer objects to on appeal—the district court correctly concluded that the relief sought in Packer's motions would not result in any earlier production of those documents. See Hogs R Us, 2009 UT 21, ¶ 8, 207 P.3d 1221 (“[T]he relief requested must be substantially likely to redress the injury claimed.” (citation and internal quotation marks omitted)).

¶ 13 Packer takes issue with the district court's treatment of his motions as relating solely to his second GRAMA request, arguing that his “ ‘real interest’ in connection with the court proceedings is to achieve what his motions sought.” However, his motions sought to assert and rectify an alleged conflict of interest between counsel for the Attorney General and Weber State and to require the Attorney General to comply with Packer's interpretation of the Subpoena Act. As Packer is not the target of the criminal investigation, he has no “personal stake in the outcome” of questions pertaining to the Attorney General's or Weber State's choice of counsel or the Attorney General's compliance with the Subpoena Act in this matter. See Utah Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 19, 148 P.3d 960 (citation and internal quotation marks omitted). Rather, under the circumstances, his motions “amount to ‘generalized grievances that are more appropriately directed to the legislative and...