Salt Lake City v. Dorman-Ligh

912 P.2d 452, 284 Utah Adv. Rep. 33, 1996 Utah App. LEXIS 15, 1996 WL 76217
CourtCourt of Appeals of Utah
DecidedFebruary 23, 1996
Docket950166-CA
StatusPublished
Cited by13 cases

This text of 912 P.2d 452 (Salt Lake City v. Dorman-Ligh) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salt Lake City v. Dorman-Ligh, 912 P.2d 452, 284 Utah Adv. Rep. 33, 1996 Utah App. LEXIS 15, 1996 WL 76217 (Utah Ct. App. 1996).

Opinions

OPINION

WILKINS, Judge:

Salt Lake City appeals the sanction imposed by the Third Circuit Court as articulated in the court’s Findings of Fact and Conclusions of Law signed January 9, 1995. The court reversed its previous decision, [454]*454which dismissed the City’s Criminal Information brought against defendant, because on reconsideration the trial court “f[ound] the [City’s] arguments set forth in the [City’s] Motion for Rehearing and Supporting Points and Authorities to be well taken.” Nonetheless, the court dismissed the City’s Criminal Information with prejudice “as a sanction against the Salt Lake City Prosecutor, for violating the Court’s order to be in attendance at and prepared for, and to represent the Plaintiff at, the May 19, 1994 hearing in this matter.” The court thereafter entered a written judgment and order of dismissal with prejudice. The City appeals the dismissal. We reverse and remand for trial.

BACKGROUND

Salt Lake City filed a criminal information against defendant Dorman-Ligh charging violations of the City’s housing code and other ordinances. Dorman-Ligh filed a motion to dismiss the information on various constitutional grounds. At a pre-trial conference held April 18,1994, the Commissioner scheduled a hearing on the motion for May 19, 1994. At that same pre-trial conference, the Commissioner issued what she considered to be a verbal order for Cheryl Luke, the Salt Lake City Prosecutor, to personally appear and defend the motion to dismiss at the May 19 hearing.

During the April 18 hearing, the Commissioner noted that Ms. Luke had been personally involved in negotiations with defense counsel in the case and, therefore, presumably had a better understanding than the other city attorneys of the issues presented. Apparently with this in mind, the Commissioner made the following statements at the April 18 hearing:

[P]erhaps what we ought to do in the future is if you would ask Ms. Luke to appear and make the court aware of that. I likewise would have asked her to appear. In fact let’s do that, have Ms. Luke — I’ll schedule a time and ask her if she will appear at that time both to argue this and to hear the matter, and I’ll just give it a special setting.
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I’d like to give her an opportunity to respond....
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So why don’t we reschedule this? I will indicate to you, Mr. Godfrey [the deputy city prosecutor present], I would like— since Ms. Luke has been the person who’s been corresponding—
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I think that it would be appropriate that she be the actual attorney to handle this matter.
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Yes, okay. All right, then that’s what we’ll do, Thursday[,] May 19th at 9:80 for a hearing. I’m not going to schedule anything else on that date. And I will expect [Ms.] Luke to be present. If [Ms.] Luke has a problem with that date have her get back to me immediately, all right ?

(Emphasis added).

At the May 19 hearing, Ms. Luke did not appear, but the City was represented by another Deputy City Prosecutor. The Commissioner said:

Now, with respect to Ms. Luke not being here, I’d like to talk to her and Mr. God-frey. And, Mr. Gray, I will hope that you would get that information to them, and let me talk to them, and ask them to come up and see me at their earliest convenience. Because that was an order. And I’m not going to do anything until I talk to them.

The Commissioner then proceeded with the hearing, noting in the record that the City was unprepared for the hearing and had not filed any responsive memorandum regarding defendant’s Motion to Dismiss. At the conclusion of the hearing, the Commissioner granted the Motion to Dismiss the Criminal Information and directed defense counsel to prepare appropriate findings of fact and conclusions of law.

Before the dismissal order was entered, the City objected to the proposed findings and made a Motion to Rehear the Motion to Dismiss. The Motion to Rehear was argued on September 1, 1994, and taken under advisement. On January 9, 1995, the Commissioner issued her findings and order, conclud[455]*455ing that the City’s argument was well made, and reversing the May 19 verbal dismissal order. However, as part of the January 9 order, the Commissioner dismissed the information with prejudice as a sanction against Ms. Luke for violating the order to be in attendance and prepared to represent the City at the May 19 hearing. The written judgment to that effect was entered February 15,1994, and this appeal ensued.

We have determined that “[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.” Utah R.App.P. 29(a)(3).

ANALYSIS

The City raises three issues on appeal. First, the City contends that the Commissioner’s remarks regarding Ms. Luke’s attendance at the May 19 hearing do not constitute a court order sufficient to support sanctions. Second, the City argues that even if the Commissioner’s remarks constitute an order that supported sanctions, the court’s failure to accord even notice and a hearing on the alleged contemptuous conduct violates the City’s right to due process. Finally, the City claims that even if the Commissioner’s comments constitute an order that supported sanctions, and even if the court’s actions did not violate the City’s due process rights, the sanction of dismissing the criminal charges against defendant with prejudice exceeds the court’s authority, violates the separation of powers provisions of article V, section 1 of the Utah Constitution, and acts as an unlawful prejudice to the public health, safety, and welfare. We review each of these questions for correctness. See generally State v. Pena, 869 P.2d 932, 936 (Utah 1994).

I. The Court’s Order

Although the Commissioner considered her comments an order that required Ms. Luke personally to attend the hearing, we fail to find an enforceable order in the record. At best, the Commissioner indicated a strong preference for Ms. Luke, as the senior prosecutor representing the City, to be present at the May 19 hearing. Twice during the interchange with counsel at the April pre-trial conference, the Commissioner said she would “like Ms. Luke to be here” at subsequent hearings. Only in conclusion did the Commissioner express a qualified expectation that Ms. Luke would appear, saying, “And I will expect [Ms.] Luke to be present. If [Ms.] Luke has a problem with that date have her get back to me immediately, all right?” Thus, even this expectancy is qualified by language that only indicates the court’s preference, not an order.

For the court to hold one in contempt of an order, that order must be clearly understood to be an order. To be enforced, an order must be sufficiently specific and definite as to leave no reasonable basis for doubt regarding its meaning. International Longshoremen’s Ass’n, Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64

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Salt Lake City v. Dorman-Ligh
912 P.2d 452 (Court of Appeals of Utah, 1996)

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Bluebook (online)
912 P.2d 452, 284 Utah Adv. Rep. 33, 1996 Utah App. LEXIS 15, 1996 WL 76217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salt-lake-city-v-dorman-ligh-utahctapp-1996.