Weber Cnty. v. Trece
| Decision Date | 18 October 2013 |
| Docket Number | No. 20120852.,20120852. |
| Citation | 321 P.3d 1067,745 Utah Adv. Rep. 62 |
| Parties | WEBER COUNTY, Plaintiff and Appellee, v. OGDEN TRECE aka Centro City Locos; Roman Hernandez; Chase Aeschlimann; Jesse Aeschilmann; Samuel Parsons; Jaime Gomez; and Willie Rodriguez; et al., Defendants and Appellants. |
| Court | Utah Supreme Court |
OPINION TEXT STARTS HERE
Christopher F. Allred, Dee W. Smith, Branden B. Miles, Jeffrey G. Thomson, Ogden, for appellee.
Randall W. Richards, Ogden, David C. Reymann, Lashel Shaw, Michael S. Anderson, John Mejia, Salt Lake City, for appellants Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann.
Michael P. Studebaker, Ogden, for appellants Samuel Parsons, Jaime Gomez, and Willie Rodriguez.
INTRODUCTION
¶ 1 We are presented with two consolidated cases. The first is a direct appeal (Appeal) from an injunction entered against Ogden Trece (Trece), a criminal street gang. The second is a petition for extraordinary writ (Petition) brought by three alleged Trece members who were served with the injunction.
¶ 2 Weber County (County) obtained a permanent injunction against Trece and its members under a public nuisance theory pursuant to section 76–10–806 of the Utah Code, which empowers a county attorney “to institute an action in the name of the county ... to abate a public nuisance.” The statutory definition of a public nuisance includes a criminal street gang. See id. §§ 78B–6–1101(2)(d), 78B–6–1107(1)(d); see also id. § 76–9–902(1) ().
¶ 3 The injunction prohibits Trece members who have been served with a copy of it from associating with one another; confronting, intimidating, annoying, harassing, threatening, challenging, provoking, or assaulting any person known to be a witness or victim of any activity of Trece; possessing a firearm in public or any place accessible to the public; or violating an 11 p.m. to 5 a.m. curfew. It applies to a twenty-five square-mile “Safety Zone” encompassing nearly the entire city of Ogden. The injunction contains both a hardship provision and an opt-out provision.
¶ 4 Appellants and Petitioners argue that (1) service on Trece as an unincorporated association was improper and thus the district court lacked jurisdiction to enter the injunction, (2) the injunction violates procedural due process, and (3) the injunction violates substantive due process. In the event the injunction is vacated, they also argue that they are entitled to an award of attorney fees.
¶ 5 We lack appellate jurisdiction over the Appeal because the purported appellants are not parties to the proceeding. We do, however, have jurisdiction to consider the Petition. Although Trece is an unincorporated association and amenable to suit, we conclude that service on Trece was improper. The district court therefore lacked jurisdiction to enter the injunction. We deny the request for attorney fees.
¶ 6 Ogden Trece is a criminal street gang that has operated for over thirty years. It has identifying signs, symbols, tattoos, graffiti, clothing, and hand signs. In its findings of fact and conclusions of law granting the permanent injunction, the district court found that members of Ogden Trece “commit crime for the purpose of intimidating rival gang members, asserting their dominance over an area, intimidating citizens and witnesses, and obtaining money through many different types of illegal activities, from selling drugs to trafficking in stolen property.” Revenue is brought into the gang by “criminal activity such as burglaries, thefts, robberies, drug dealing, etc.” The day-to-day operations of the gang are directed by senior members called “shot callers.” Less senior gang members are “put to work” by the “shot callers,” meaning they are to “commit criminal activity to bring recognition and money into the gang.” The proceeds from the criminal activities are given to the “shot callers” who “are [then] responsible for distributing money to members of the gang when they deem necessary.”
¶ 7 On August 20, 2010, Weber County filed a complaint for permanent injunction to abate a public nuisance. It brought this action against Ogden Trece as an unincorporated association. The County also filed an application for a restraining order, preliminary injunction, and a request for hearing. The district court entered a temporary restraining order that same day.
¶ 8 On August 24, 2010, the County personally served five alleged Trece members: Evan Barrow, Emmanuel Montoya, Samuel Parsons, Roman Hernandez, and Daniel Callihan. The County also mailed process to twelve other alleged Trece members, namely: Jamie Gomez, Michael Gutierrez, Dario Muniz, David Maes, Nicholas Davis, Juan Saucedo, Darren Begay, Tyler Greenfield, Daniel Salinas, Troy Rivera Jr., Alex Mercado, and Elmer Maes.
¶ 9 Even though it had personally served gang members, the County sought an order allowing it to serve Trece by publication. At a hearing on August 31, 2010, the County attorney stated, without elaborating, “that we have adequately put the gang on notice, however, just to make sure that that's accomplished, we're going to request an order from the court to allow us to further put the gang on notice by publication.” The attorneys and the court then turned to other issues. Near the conclusion of the hearing, the County attorney reminded the court of its motion, asking, “would the court authorize us to publish?” The court responded, “[y]es, I will authorize service.”
¶ 10 The County followed up two days later with a written motion requesting service by publication and a supporting affidavit. The County argued that it was “difficult if not impossible to give the gang ‘notice’ ... and serve [it] under traditional methods contemplated by [r]ule 4 of the Utah Rules of Civil Procedure.” Specifically, the County argued that Trece “do[es] not have a registered agent in the State of Utah or any other State,” nor any “known management structure, officers, directors, or like managerial personnel [on] which to personally serve with process.” The district court entered a written order authorizing service by publication the following day. The County then published service of process in the Ogden Standard Examiner and on www. utahlegals. com.
¶ 11 On September 14 and 27, 2010, the district court held an evidentiary hearing on the County's request to convert the temporary restraining order to a preliminary injunction. The court heard testimony from two Ogden police officers who testified about the criminal and nuisance activity of Trece. The district court also heard testimony from a deputy district attorney from California who testified as an expert on the effectiveness of gang injunctions. Following the hearing, the district court converted the temporary restraining order to a preliminary injunction that included all the same prohibitions as the temporary restraining order, but also included a “Hardship Exemption Process” and an “ ‘Opt-Out’ Provision.”
¶ 12 The County then began serving the preliminary injunction on more than three hundred alleged members of Ogden Trece. Violation of the injunction is a class B misdemeanor punishable by up to six months imprisonment and up to a $1,000 fine. Utah Code § 76–10–807. Among those served were brothers Chase and Jesse Aeschlimann. Upon being served, the brothers filed a motion for a hearing to contest the constitutionality of the preliminary injunction, noting that neither of them had been served or given notice of the proceedings prior to the entry of the preliminary injunction or its service upon them. But neither brother moved to intervene in the action or request formal party status.
¶ 13 The district court ruled that because the gang as an entity had been sued and the constitutional arguments had “already been dealt with,” individuals subsequently served with the injunction did not have a right to intervene or otherwise appear in the case or to challenge the terms of the injunction. It reasoned that due process had been satisfied because “[l]aw enforcement is required to serve the injunction on gang members, thus placing them on notice of the injunction.”
¶ 14 On June 11, 12, and 14, 2012, the district court held an evidentiary hearing to consider whether to make the preliminary injunction permanent. No one representing Trece appeared at the hearing. However, despite the fact that none of their clients had moved to intervene, three attorneys representinga total of eight individuals who had been served with the preliminary injunction attended the hearing. All of these attorneys noted that they represented only the individuals who had been served with the injunction and that they did not represent Trece itself. And none of the eight alleged members of Trece were present.
¶ 15 At the hearing, the district court heard evidence regarding Trece, why the County believed it to be a criminal street gang and a public nuisance, and how some of its members had previously been convicted of crimes. The district court found that Ogden Trece met the legal definition of a criminal street gang and a nuisance and that “the provisions of the injunction are narrowly drawn and are necessary to give ... complete relief from [Trece's] nuisance activities.”
¶ 16 At the conclusion of the hearing, the district court entered the permanent injunction (Injunction). The Injunction applies to the “Safety Zone,” a twenty-five square-mile area encompassing most of the city of Ogden. It prohibits those alleged gang members served with it from engaging in specified conduct in the Safety Zone. Specifically, it prohibits the alleged gang members from any knowing association with gang members in public places or public view. This extends to “[d]riving, standing, sitting, walking, gathering, or appearing together with any known member of Ogden Trece anywhere in public view or anyplace accessible to the public.” The Injunction also prohibits gang members from...
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