State v. Clark

• Decision Date: 29 April 2011
• Docket Number: No. 20090525.,20090525.
• Citation: 681 Utah Adv. Rep. 13,2011 UT 23,251 P.3d 829
• Parties: STATE of Utah, Plaintiff and Appellee,v.Zachariah E. CLARK, Defendant and Appellee,T.C. and N.C., Minor Victims and Appellants.
• Court: Utah Supreme Court

251 P.3d 829

681 Utah Adv. Rep. 13

2011 UT 23

STATE of Utah, Plaintiff and Appellee,

v.Zachariah E. CLARK, Defendant and Appellee,T.C. and N.C., Minor Victims and Appellants.

No. 20090525.

Supreme Court of Utah.

April 29, 2011.

Craig L. Barlow, Susan H. Eisenman, Salt Lake City, for plaintiff.Herschel P. Bullen, Salt Lake City, for defendant.Heidi M. Nestel, Brandon E. Simmons, Salt Lake City, for victims.Justice LEE, opinion of the court:

¶ 1 This is an appeal from a criminal restitution order in which the trial court declined to require the Utah Division of Child and Family Services (“DCFS”) to pay the crime victims' treatment costs. The appeal is unusual because neither the defendant nor the prosecution has participated. Appellants, T.C. and N.C., are the minor victims of sexual abuse perpetrated by their adopted older brother, Zachariah E. Clark. As part of the restitution ordered during sentencing, the court required the defendant to pay the costs of the victims' therapy. But as defendant was also sentenced to prison, he had no means to pay those costs. Because defendant was adopted through DCFS, appellants requested that DCFS be ordered to pay their treatment costs pursuant to Utah Code section 76–3–409(2). That request was ultimately denied.

¶ 2 On appeal, appellants raise several grounds for challenging the district court's refusal to order DCFS to pay the costs of the victims' treatment. We do not reach the merits of these contentions, however, because we hold that the victim-appellants have no statutory right to appeal.

I

¶ 3 The defendant in the underlying criminal case, Zachariah E. Clark, was placed for adoption by DCFS in 1995. Twelve years later, on November 8, 2007, a jury convicted Clark of five counts of sodomy on a child and five counts of sex abuse of a child. The two minor victims and appellants in this case, T.C. and N.C., are Clark's younger brothers.

¶ 4 On August 8, 2008, after Clark's sentencing, the trial court entered an order requiring DCFS to pay the victims' uninsured treatment costs. That order was based on a provision of the Utah Code that authorizes district courts to order that an “appropriate state agency” pay treatment costs for victims of child abuse if the offender is unable to pay.¹ The court determined that DCFS was the appropriate agency to pay the treatment costs because DCFS had custody of the defendant prior to his adoption. And because the defendant had been sentenced to a minimum of sixteen years in prison, the court concluded that he would be unable to pay these costs. Consequently, the court ordered DCFS to pay the victims' treatment costs and ordered the defendant to reimburse DCFS through community service.

¶ 5 Subsequently, at a restitution review hearing on February 20, 2009, DCFS argued that the relevant code provision, Utah Code section 76–3–409(2), requires the appropriate state agency to pay the cost of treatment only “to the extent funding is provided by the Legislature.” DCFS submitted affidavit testimony from Jack Green, its Administrative Services Director, suggesting that the legislature had not allocated funds to DCFS for treatment costs of victims such as T.C. and N.C. The court agreed with DCFS and, on May 21, 2009, vacated its prior restitution order and entered a new order explaining that “the only facts before the Court clearly establish that there are no funds appropriated by the Legislature to [DCFS] to pay the costs of reimbursing ... the victims.” On June 19, 2009, the victims appealed “from the entire order” entered by the district court on May 21, 2009.

II

¶ 6 There is no inherent right to appellate review. Such a right must be positively recognized by statute or a constitutional provision. See Castle Dale City v. Woolley, 61 Utah 291, 212 P. 1111, 1112 (1923).² Appellate review is not guaranteed by the federal Constitution. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Under the Utah Constitution, criminal defendants have “the right to appeal in all cases,” Utah Const. art. I, § 12, but there is no such right for crime victims. In fact, the Victims' Rights Amendment of the Utah Constitution explicitly limits the remedies available to crime victims, ceding to the legislature the “power to enforce and define this section by statute.” Id. art. I, § 28; see also id. (“Nothing in this section shall be construed as creating a cause of action....”); State v. Lane, 2009 UT 35, ¶¶ 23–24, 212 P.3d 529 (explaining that the Victims' Rights Amendment does not provide crime victims the right to appeal an order dismissing a criminal case).

¶ 7 A number of Utah statutes afford special rights to crime victims during criminal proceedings.³ But the only provision granting crime victims a right to appeal—and the provision appellants invoke on this appeal—is Utah Code section 77–38–11(2)(b). That section states:

Adverse rulings on these actions or on a motion or request brought by a victim of a crime or a representative of a victim of a crime may be appealed under the rules governing appellate actions, provided that an appeal may not constitute grounds for delaying any criminal or juvenile proceeding.This statute gives crime victims “the right to appeal rulings on motions related to their rights as a victim.” State v. Casey, 2002 UT 29, ¶ 22, 44 P.3d 756.⁴

¶ 8 In 2009, the legislature revised the Rights of Crime Victims Act. See 2009 Utah Laws 120. The 2009 amendment provided enhanced remedies for crime victims in trial court proceedings. At the same time, it removed the provision granting the right to appeal from “[a]dverse rulings ... on a motion or request brought by a victim of a crime.” Id. This amendment became effective on May 12, 2009, removing the statutory right to appeal from that day forward. One year later the legislature again amended the statute, reinstating section 77–38–11(2)(b) and restoring crime victims' right to appeal. See 2010 Utah Laws 331. This right of appeal became effective on May 11, 2010, leaving a gap in the statute's effectiveness from May 12, 2009, to May 11, 2010.

¶ 9 Appellants in this case filed their appeal on June 19, 2009. So at the time of the entry of the second restitution order and at the time the victims appealed from that order, there was no statute then in effect granting crime victims a right of appeal. In the absence of any statutory or constitutional basis for an appeal, appellants lack standing to press this appeal, and we lack jurisdiction to review the decision of the court below. See Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649.

¶ 10 Appellants seek to sustain the propriety of this appeal by asking us to apply the “version of the statute that was in effect at the time of the events giving rise to [the] suit.” Harvey v. Cedar Hills City, 2010 UT 12, ¶ 12, 227 P.3d 256 (internal quotation marks omitted) (alteration in original). Because the statute granting victims a right of appeal was in effect at the time of the criminal activity giving rise to this case, appellants insist that their right to appeal subsisted throughout these proceedings and survived the repeal of the appeal provision in 2009.

¶ 11 We disagree. The courts of this state operate under a statutory bar against the retroactive application of newly codified laws. See Utah Code Ann. § 68–3–3 (Supp.2010). This statutory prohibition admits a single exception: “A provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.” Id.⁵ We have likewise recognized a narrow, judge-made exception to the retroactivity ban, allowing that “when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” Dep't of Soc. Servs. v. Higgs, 656 P.2d 998, 1000–01 (Utah 1982). ⁶ Absent either of these exceptions, the retroactivity ban holds, and courts must apply the law in effect at the “time of the occurrence” regulated by that law. OSI Indus. v. Utah State Tax Comm'n, 860 P.2d 381, 383 (Utah Ct.App.1993).⁷

¶ 12 Consequently, we have said that the parties' “substantive rights and liabilities” are determined by the law in place at the time “when a cause of action arises, and not [by] a subsequently enacted statute.” Carlucci v. Utah State Indus. Comm'n, 725 P.2d 1335, 1336 (Utah 1986).⁸ With respect to “procedural statutes enacted subsequent to the initiation of a suit,” on the other hand, we have held that the new law applies “not only to future actions, but also to accrued and pending actions,” and that “[f]urther proceedings in a pending case are governed by the new [procedural] law.” Higgs, 656 P.2d at 1000–01.⁹

¶ 13 We have sometimes characterized this rule governing the applicability of changes in procedural rules as an exception to the bar against the retroactive application of statutes.¹⁰ Under this conception, amendments to procedural statutes are said to be retroactive because they apply presently to cases whose causes of action arose in the past. But this formulation is imprecise. Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or a tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action. Subsequent changes to contract or tort law are irrelevant. Similarly, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed. A change in the procedural rule would not apply retroactively to prior motions to intervene. We would not expel a party for failure to conform to a newly amended intervention rule in her prior motions.

¶ 14 The difference is in the nature of the underlying occurrence at issue. On matters of substance the parties' primary rights and duties are dictated by the law in...