Monday, January 23, 2006

Appellate Procedure

Code v. Utah Dep’t of Health, 2006 UT App 113

On January 10, 2005, the trial court dismissed Code’s complaint with prejudice in a signed memorandum decision. At the end of the decision, the court stated, “For the reasons stated above, the Court dismisses Plaintiff’s claim.” Sounds final right. The court of appeals thought so. It dismissed Code’s appeal because notice of appeal was not filed until March 8, 2005, almost two months after entry of the memorandum decision.

But the trial court had signed an order of dismissal on Febraury 25, 2005, after the memorandum decision, and Code’s notice of appeal was timely from that order. The court of appeals held, however, that the February 25th order did not restart the time to appeal because it did nothing to alter the substantive rights of the parties. It merely reiterated the dismissal already in effect.

Code claimed that she was merely following rule 7(f)(2), Utah Rules of Civil Procedure, which states:
Unless the court approves the proposed order submitted with an initial memorandum, or unless otherwise directed by the court, the prevailing party shall, within fifteen days after the court’s decision, serve upon the other parties a proposed order in conformity with the court’s decision. Objections to the proposed order shall be filed within five days after service. The party preparing the order shall file the proposed order upon being served with an objection or upon expiration of the time to object.

The court of appeals held that rule 7(f)(2) is merely the default rule in case the trial court order does not specify which party should prepare the final order. In this case, the court explained, the memorandum decision made clear that it was the final judgment.

State v. King, 2006 UT 3
State v. Winfield, 2006 UT 4
State v. Lee, 2006 UT 5

These cases were argued together and were all written by Justice Parrish. They each consider proper standard of review when a party fails to object to a juror during voir dire.

Essentially, these cases establish that normal rules of preservation apply to jury voir dire. Parties must make a specific, contemporaneous objection to the court’s conduct. Absent such an objection, claims of bias are reviewed only for plain error. Moreover, if the party affirmatively passes the jury for cause, any alleged error is invited, and the court will not consider it on appeal. In reaching these conclusions, the court relied heavily on the adversarial nature of the American justice system:

The preservation rule is grounded in our adversarial system of justice, which looks to the parties to zealously advocate their cause before an impartial fact finder. “The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice form the inquisitorial one.”

(quoting United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J. concurring).

With regard to invited error, the court quoted State v. Litherland, 2000 UT 76 ¶ 32:

It is generally inappropriate for a trial court to interfere with counsel’s conscious choices in the jury selection process, notwithstanding the existence of a reasonable basis for objecting to those jurors.

The supremes repeated a caveat from Litherland, however:

Only where a juror express a bias or conflict of interest that is so strong or unequivocal as to inevitably taint the trial process should a trial court overrule trial counsel’s conscious decision to retain a questionable juror.


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