State v. Stirba
| Decision Date | 24 December 1998 |
| Docket Number | No. 981383-CA,981383-CA |
| Citation | 972 P.2d 918,359 Utah Adv. Rep. 25 |
| Parties | 359 Utah Adv. Rep. 25 STATE of Utah, Petitioner, v. Anne M. STIRBA, Judge, Third Judicial District Court, Salt Lake County, Utah, Respondent; Laura M. Morrison, Intervenor. |
| Court | Utah Court of Appeals |
Jan Graham and Norman E. Plate, Salt Lake City, for Petitioner.
Brent M. Johnson, Salt Lake City, for Respondent.
Kimberly A. Clark and Joan C. Watt, Salt Lake City, for Intervenor.
Before Judges BENCH, BILLINGS, and ORME.
Pursuant to Rule 65B of the Utah Rules of Civil Procedure and Rule 19 of the Utah Rules of Appellate Procedure, petitioner, the State of Utah, requests an extraordinary writ compelling respondent, Anne M. Stirba, District Court Judge, to order restitution which she previously held unrecoverable. For what are essentially procedural reasons, we deny the petition.
In the underlying case, State v. Morrison, Third District Court No. 971900099FS, the State filed an information against Laura M. Morrison, the intervenor herein, charging her with, inter alia, theft by receiving stolen property, a second degree felony in violation of Utah Code Ann. § 76-6-408 (1995), for her role in a motor vehicle theft. A jury convicted Morrison of this offense and Judge Stirba ordered counsel for Morrison and the State to submit briefs regarding the amount of restitution that Morrison should pay her victims, a married couple.
In response, the State filed a brief requesting an order requiring Morrison to pay the victims $250 to recompense them for an insurance deductible they had paid. Additionally, the State requested that Judge Stirba order Morrison to pay the victims $9312.50 to cover their vehicle's value. According to the State--although the premise is surely questionable--the victims had received an insurance settlement for this amount, but their policy required them to repay it because their vehicle--or what was left of it--was recovered. At a restitution hearing held on September 2, 1997, one of the victims testified that she and her husband had saved for years to buy the vehicle, which was "totaled" when the police recovered it from Morrison. After settling with their insurance company and car loan lender, the victim testified that they could not afford a down payment on a new vehicle. The State argued that, notwithstanding their insurance coverage, the victims were entitled to receive the $9312.50 from Morrison under the collateral source rule.
Judge Stirba ordered Morrison to pay the victims $250 for their insurance deductible and $500 for their car stereo, which was apparently excluded from insurance coverage. Additionally, Judge Stirba took the issue of whether Morrison should be required to pay amounts duplicative of those covered by insurance under advisement, pending briefing by counsel for both sides on the collateral source doctrine and other applicable law.
On October 22, 1997, Judge Stirba entered a memorandum decision denying the State's request for restitution covering losses for which the victims were insured. Judge Stirba ruled that, under Utah Code Ann. § 76-3-201(4)(a)(i) (Supp.1997), as interpreted by this court's decision in State v. Westerman, 945 P.2d 695 (Utah Ct.App.1997), "a defendant cannot be required to pay restitution ... to a victim who has already been reimbursed by the victim's insurance carrier."
Challenging this ruling, the State filed a Petition for Extraordinary Writ in this court, seeking a writ, in the nature of mandamus, directing Judge Stirba to order Morrison to pay the victims the $9312.50 value of their car, even though that amount was covered by their insurance.
At the outset, it is important to note that this case comes to us as an original proceeding, not an appeal from Judge Stirba's restitution order. In fact, Utah Code Ann. § 77-18a-1(2) (Supp.1998) precludes the State from appealing this order, 1 and the State may not use the writ of mandamus to circumvent this restriction. See Petersen v. Utah State Bd. of Pardons, 907 P.2d 1148, 1152 (Utah 1995) (); Merrihew v. Salt Lake County Planning and Zoning Comm'n, 659 P.2d 1065, 1067 (Utah 1983) () (quoting Crist v. Mapleton City, 28 Utah 2d 7, 9, 497 P.2d 633, 634 (1972)).
Accordingly, because the State challenges a judicial decision, our review "shall not extend further than to determine whether [Judge Stirba] has regularly pursued [her] authority." Utah R. Civ. P. 65B(d)(4). However, in making this determination, "[s]ince the issue here involves the interpretation and application of a statute, the trial court's legal conclusion is granted no particular deference but is reviewed for correctness." Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1019 (Utah 1995). In other words, while we limit our review of Judge Stirba's actions to deciding whether she has regularly exercised her authority, we grant no deference to her interpretation and application of Utah Code Ann. § 76-3-201 (Supp.1997). See id. at 1019.
We may 2 grant the extraordinary relief of a writ in the nature of mandamus, compelling a lower court's compliance, when the lower court has
(A) ... exceeded its jurisdiction or abused its discretion; (B) ... failed to perform an act required by law as a duty of office, trust or station; [or] (C) ... refused the petitioner the use or enjoyment of a right or office to which the petitioner is entitled.
Utah R. Civ. P. 65B(d)(2). In this case, the State contends Judge Stirba failed to perform a legally required act under Rule 65B(d)(2)(B) and abused her discretion under Rule 65B(d)(2)(A). In assessing these contentions, and in deciding whether to issue the writ, we "must look to the nature of the relief sought, the circumstances alleged in the petition, and the purpose of the type of writ sought." Renn, 904 P.2d at 683.
However, we may not exercise our discretion and enter a Rule 65B writ unless the State has "no other plain, speedy and adequate remedy" at law. Utah R. Civ. P. 65B(a). Thus, we must first determine whether the State could obtain clear, sufficient and expedient relief by means other than a Rule 65B action.
When it cannot appeal a district court's order, a petitioner has "no alternative course to follow" and thus Rule 65B "provides the [petitioner] with its sole means to obtain a 'plain, speedy and adequate remedy' for the district court's alleged abuse of discretion." Society of Prof'l Journalists v. Bullock, 743 P.2d 1166, 1168 n. 1 (Utah 1987) (quoting Utah R. Civ. P. 65B(a)). As noted earlier in this opinion, Utah Code Ann. § 77-18a-1(2) (Supp.1998) precludes the State from appealing Judge Stirba's restitution order. See supra note 1 and accompanying text. Consequently, the State has no other course to follow in challenging this order, and Rule 65B provides the State with its sole means to obtain a plain, speedy and adequate remedy.
Morrison argues that, because the victims may pursue a civil action against her, an alternative remedy exists and a Rule 65B writ is inappropriate. We disagree. The State's right to pursue criminal restitution cannot be equated with the victim's right to pursue civil damages. Cf. Monson v. Carver, 928 P.2d 1017, 1027 (Utah 1996) (). Moreover, the victims are not parties to this action and the remedies available to them have no bearing on whether a Rule 65B writ is the State's only viable remedy.
We thus conclude a Rule 65B extraordinary writ is the State's only plain, speedy and adequate remedy. Having reached this conclusion, we consider the State's claim that Judge Stirba failed to perform a legal duty of her office.
A Rule 65B(d)(2)(B) writ is available to direct the exercise of discretionary action, " ' "but not to direct the exercise of judgment or discretion in a particular way." ' " Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 682 (Utah 1995) (quoting State v. Ruggeri, 19 Utah 2d 216, 218, 429 P.2d 969, 970 (1967) (quoting 34 Am.Jur. Mandamus § 4 (1941))). For instance, if a lower court refused to rule on a timely and proper motion, we could compel it to do so, but we could not direct it how to rule. See Ruggeri, 19 Utah 2d at 218, 429 P.2d at 970. However,
[w]hile it is well settled that mandamus may not issue to compel a public official with unlimited discretion to act in a certain way, courts have long recognized that where the law imposes limitations on the exercise of that discretion, mandamus is available to enforce those limitations.
Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 967 (Utah 1986). Utah courts have thus far only enforced such limitations against the overstepping of "statutory authority." Id. In this case, Judge Stirba has performed the acts required of her office without overstepping statutory limitations.
Utah's restitution statute provides that "[w]hen a person is convicted of criminal activity that has resulted in pecuniary damages, in addition to any other sentence it may impose, the court shall order that the defendant make restitution to victims of crime as provided in this subsection." Utah Code Ann. § 76-3-201(4)(a)(i) (Supp.1998) (emphasis added). Accordingly, upon Morrison's conviction, section 76-3-201(4)(a)(i) imposed a nondiscretionary duty upon Judge Stirba to order Morrison to make appropriate restitution.
Judge Stirba performed this duty by entering an...
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