Salt Lake City v. Newman

• Decision Date: 05 May 2005
• Docket Number: No. 20040452-CA.,20040452-CA.
• Citation: 2005 UT App 191,113 P.3d 1007
• Parties: SALT LAKE CITY, Plaintiff and Appellee, v. Gary Allen NEWMAN, Defendant and Appellant.
• Court: Utah Court of Appeals

113 P.3d 1007

2005 UT App 191

SALT LAKE CITY, Plaintiff and Appellee, v. Gary Allen NEWMAN, Defendant and Appellant.

No. 20040452-CA.

Court of Appeals of Utah.

May 5, 2005.

Debra Meek Nelson, Samuel P. Newton, and Teresa L. Welch, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

Doug A. Johnson, Salt Lake City Attorney Office, Salt Lake City, for Appellee.

Before Judges DAVIS, JACKSON, and THORNE.

OPINION

JACKSON, Judge:

¶ 1 Gary Allen Newman challenges the district court's denial of his petition for extraordinary relief. We affirm.

BACKGROUND

¶ 2 On March 20, 2003, Newman, who is on active duty in the military, disputed with his estranged wife. Salt Lake City police officers intervened and arrested Newman. Salt Lake City charged Newman with battery, a domestic violence offense, under Salt Lake City Code section 11.08.020 (the ordinance). See Salt Lake City, Ut., Code § 11.08.020 (2002).

¶ 3 The Salt Lake City Justice Court assumed jurisdiction over the charge, pursuant to its statutory authority to hear charges of class B and C misdemeanors and violations of ordinances. See Utah Code Ann. § 78-5-104(1) (2002). Newman filed a motion to dismiss the charge, arguing that the ordinance unconstitutionally conflicts with the Utah assault statute. The justice court denied the motion.

¶ 4 Newman asserts that under federal law, the military may discharge him if he is convicted of any charge related to domestic violence, even if the charge is overturned on appeal. Yet, Utah Code section 78-5-120(3) provides that a defendant can only appeal a justice court ruling in the district court after the justice court convicts and sentences him. See Utah Code Ann. § 76-5-120(3)(c) (2003). To avoid the potential repercussions of going to trial, Newman filed a petition for extraordinary relief in the Third District Court, asserting that the justice court failed to perform an act required by law and abused its discretion. The district court denied Newman's petition. Newman challenges the district court's denial.

ISSUE AND STANDARD OF REVIEW

¶ 5 We review whether Newman may use a petition for extraordinary relief in these circumstances and whether the district court erred in denying Newman's petition for extraordinary relief. We review "the trial court's conclusions of law for correctness." State v. Rees, 2003 UT App 4, ¶ 3, 63 P.3d 120.

ANALYSIS

¶ 6 As a preliminary matter, although the State did not cross-appeal, it nonetheless argues that the district court was right to dismiss Newman's petition for extraordinary relief because the standard process for appealing was adequate. "For criminal cases originating in justice courts, a defendant is provided an appeal through `a trial de novo in the district court.'" Lucero v. Kennard, 2004 UT App 94, ¶ 9, 89 P.3d 175 (quoting Utah Code Ann. § 78-5-120(1)). But, a defendant cannot appeal unless he has either pleaded guilty or been convicted in justice court. See Utah Code Ann. § 78-5-120(1)(a), (3).

¶ 7 However, "[i]t shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor or crime of domestic violence . . . to ship . . . or possess . . . any firearm or ammunition." 18 U.S.C.A. § 922(g)(9) (2004). In light of this provision, Newman believes that he could not lawfully perform duties required of his military service and would thus be discharged before having the opportunity to appeal his plea or conviction through the ordinary procedures. Accordingly, Newman filed a petition for extraordinary relief in the district court to challenge the justice court's ruling on his motion to dismiss.

¶ 8 Utah Rule of Civil Procedure 65B(a) provides that a person may petition a higher court for extraordinary relief when no "plain, speedy, and adequate remedy" is available. Utah R. Civ. P. 65B(a). While negative consequences usually (and appropriately) flow from a criminal conviction, some convictions, even if later overturned, scar an individual's life in a permanent and extraordinary way. Trial de novo in a district court may not always be a "plain, speedy, and adequate remedy." Id. Thus, in truly exceptional circumstances, a individual may "correctly seek[ ] relief in the form of a petition for extraordinary relief" to challenge a justice court ruling. Cahan v. Boyden, 2003 UT App 116, 2003 WL 21289369 (mem.) (per curiam). We believe that to be the case here for three reasons: (i) the repercussion for Newman is all but guaranteed, (ii) the loss, his military service, represents something much more significant in the lives of those who serve than a mere job, and (iii) the penalties for convictions for class B and C misdemeanors are meant to be in proportion to the crime, not to punish the individual for the remainder of his life.

¶ 9 However, under Utah Rule of Civil Procedure 65B(d)(2), we may grant a writ for extraordinary relief only when a lower court (i) "has exceeded its jurisdiction or abused its discretion," (ii) "has failed to perform an act required by law," or (iii) "has refused the petitioner the use or enjoyment of a right or office." Utah R. Civ. P. 65B(d)(2)(A)-(C).¹ Hence, in order for a court to grant Newman relief, he must show that a lower court exceeded its jurisdiction, abused its discretion, or failed to perform a required act.

¶ 10 The crux of Newman's argument is that the justice court blundered, and the district court erred in failing to recognize the justice court's blunder, because the justice court failed to rule that the ordinance unconstitutionally conflicts with the state assault statute. "[O]rdinances passed by municipalities are valid unless they are inconsistent or conflict with state law." Salt Lake City v. Roberts, 2000 UT App 201, ¶ 4, 7 P.3d 789, rev'd on other grounds, 2002 UT 30, ¶ 31, 44 P.3d 767; see also, Utah Code Ann. § 10-8-84 (2003). An "ordinance need not be identical to the controlling state statute to be consistent with it." Richfield City v. Walker, 790 P.2d 87, 90 (Utah Ct.App.1990).

¶ 11 "`[A]n ordinance is in conflict if it forbids that which the statute permits.'" Id. at 91 (quoting Salt Lake City v. Kusse, 97 Utah 113, 93 P.2d 671, 673 (1938)). In contrast, ordinances "are not inconsistent" with state law "when they share a common purpose and are `closely related in subject matter.'" Roberts, 2000 UT App 201 at ¶ 4, 7 P.3d 789 (quoting Salt Lake City v. Allred, 20 Utah 2d 298, 437 P.2d 434, 437 (1968)).²

¶ 12 The ordinance at issue in this case provides "[a] battery is any wilful and unlawful use of force or violence upon the person of another. It is unlawful for any person to commit a battery within the limits of the city." Salt Lake City, Ut., Code § 11.08.020 (2003). The statute, however, defines assault as:

(a) an attempt, with unlawful force or violence, to do bodily injury to another; (b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or (c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.

Utah Code Ann. § 76-5-102(1) (2003). In short, the statute requires that an act of assault either cause or create the danger of physical injury, whereas the ordinance omits the injury aspect. See id. § 76-5-102(1)(c); Salt Lake City, Ut., Code § 11.08.020. But, the statute also criminalizes attempts and threats to injure. See Utah Code Ann. § 76-5-102(1)(a), (b).

¶ 13 Newman argues that the state law is a specific intent crime, but without the element of causing injury, the ordinance is only a general intent crime. The Utah Code requires that, unless the legislature has clearly indicated an intent to create a strict liability crime, the minimum required mens rea is recklessness. See Utah Code Ann. § 76-2-102. The code defines "reckless" as conduct in which a person "is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur." Id. § 76-2-103(3) (2003). State law defines "[a]ct" as "a voluntary bodily movement." Id. § 76-1-601(1) (2003). Thus, read together, the Utah Code requires that, to commit assault, at the least, one must consciously disregard the risk of attempting, threatening with a show of force, or making a voluntarily bodily movement that results in injury to another. See id.; id. §§ 76-5-102(1), -2-102, -2-103(3).

¶ 14 On the other hand, the ordinance requires that the conduct be "wilful and unlawful," Salt Lake City, Ut., Code § 11.08.020, and elaborates "`[w]ilfully,' . . . means and implies simply a purpose or willingness to commit the act," id. § 1.04.010(C)(21). Thus, under the ordinance, to commit battery, one must willingly use force against another. See id.; id. § 11.08.020.

¶ 15 Hence, in contrast to the state law, the ordinance requires a greater culpable mental state, does not prohibit attempts and threats, and requires that the acts take place within Salt Lake City. See id. "[W]here the legislature prohibits the citizens from doing some act," "in certain limited instances," "there is no basis to imply that the legislature intended that cities and counties should not add additional provisions." Allgood v. Larson, 545 P.2d 530, 532 (Utah 1976). For example, in Salt Lake City v. Howe, 37 Utah 170, 106 P. 705 (1910), a Salt Lake City ordinance required that all milk sellers in the city limits have a permit. See id. at 706. But, the legislature had previously "creat[ed] the office of a state dairy and food commissioner ... regulating sanitary conditions of premises where cows are kept, and forbidding the sale of adulterated ... dairy products, including milk." Id. at 707. Nonetheless, the court concluded that the ordinance was "not inconsistent with the statute," even though both dealt with the sale of milk, "so long as the municipality did not forbid that which was licensed or permitted by the state." Id.

¶ 16 The differences between the...