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The judge pushed open the door to his chambers, took off his robe, folded it around the wooden hanger, and hung it in the closet. Walking to his desk, he stretched his arms over his
head and yawned. It had been another long, tiring morning of summary judgment hearings.
He pulled his chair back from his desk and sat down, noticing as he did so that he had new mail in his in box. An envelope caught his eye. It was from the Utah Supreme Court. He opened
the envelope, read the caption, and turned to the last page. With a smile he noted the last sentence, "Accordingly, the trial court's order granting summary judgment to the defendant
is hereby affirmed."
He returned to the first page and began skimming through the opinion. Soon, however, he began to read more slowly, his wrinkled forehead becoming clouded. At footnote number one, he
paused:
Appellant accurately notes that the district court improperly granted the defendant's motion based on its express conclusion below. However, it is a well-established rule of
appellate review that the lower court may be affirmed on any grounds, even if not relied upon below. See White v. Deseelhorst, 879 P.2d 1371, 1376 (Utah 1994); Limb v. Federated Milk
Producers Ass'n, 461 P.2d 290 (Utah 1969).
He read further. The Utah Supreme Court had disagreed with his conclusion that the statute of limitations barred the plaintiff's claim, but it had independently determined that there
was no acceptance of the contract at issue. Finishing the opinion, he sat thinking about the Supreme Court's alternative basis for affirmance; he could not recall that the defendant had
ever raised the acceptance issue on which the Supreme Court's decision rested. Troubled, he set aside the opinion and turned to more pressing matters: whether he had been mistaken or not,
the case had been disposed of.
Across town, the appellant's lawyer nervously removed the opinion from its textured sheath. His hands shaking slightly, he opened the opinion, and turned to the last page. With a frown
he read the last sentence of the opinion. "How? The judge was clearly wrong," he grumbled. As he returned to the first page, he too paused at footnote number one and then, with
mounting frustration, continued on through the appellate court's acceptance-of-contract analysis. "The defendants never argued that," he roared at the office wall. As he
continued reading the opinion, he began noting the affidavits and deposition testimony that he could have filed - testimony that almost certainly would have changed the appellate court's
opinion. Finally, he picked up the telephone and sheepishly punched his client's telephone number.
In the next building, after opening the envelope she had just received from the Supreme Court, the appellee's attorney yelled with delight when her eyes fell on the word
"affirmed" at the end of the opinion.
For many years, Utah's appellate courts have adhered to the rule that they can affirm a trial court's determination on any grounds, even if those grounds were never raised below. Although
there may be good policies served by this rule of sua sponte affirmance on any basis, an unfettered, unbridled application of the rule in fact erodes the role of the court and seriously undermines the fairness of the adversarial process. This article suggests a model for sua sponte consideration of issues not raised below that preserves the interests of all parties involved.
I. History of Affirming on Basis of Issue Raised sua sponte
In 1969 the Utah Supreme Court noted in an opinion authored by Justice Ellett and entirely concurred in by only one
other justice:
The law is well settled that a trial court should be affirmed if on the record made it can be. . . . "The appellate court will affirm the judgment, order, or decree appealed from if
it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or
action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the
lower court."
Limb v. Federated Milk Producers Ass'n, 23 Utah 2d 222, 461 P.2d 290, 293 n.2 (1969) (quoting 5 C.J.S. Appeal & Error ¤ 1464(1)) (emphasis added). In a spirited dissent, Justice Henriod argued that
to maintain some modicum of order on appellate review, a healthy, fair and highly practical rule is that which already we have enunciated in many cases, to the effect that if error is
not raised at all or is claimed for the first time on appeal, we will not entertain it, - and particularly should this prevail where anyone on the court sua sponte and for the
first time on appeal raises a point that cannot be sustained anywhere in the record by any amount of searching.
Id. at 295 (Henriod, J., dissenting) (emphasis added). Noting that the quotation from C.J.S. upon which the majority opinion relied was "an easy generalization of principles," Justice Henriod maintained that to do as the Supreme Court had done - raising an issue sua sponte and affirming on that basis - was to "cast[ ] the appellate court in the role of advocate and counselor for one side in derogation of equal empathy for the other. Such procedure at least suggests some sort of preferential treatment." Id. at 295.
Although Limb has been consistently applied to affirm a trial court's decision when an issue raised below by a party is offered as an alternative ground for affirmance, it has been inconsistently applied when such an issue has not been raised below by any party. For instance, in Buehner Block Co. v. UWC Associates, 752 P.2d 892, 894-95 (Utah 1988), and Branch v. Western Petroleum, Inc., 657 P.2d 267, 276 (Utah 1982), the Utah Supreme Court affirmed a lower court's decision by applying an argument raised for the first time on appeal. However, in American Coal Co. v. Sandstrom, 689 P.2d 1, 4 (Utah 1984), overruled on other grounds, State v. South, 924 P.2d 354 (Utah 1996), and L&M Corp. v. Loader, 688 P.2d 448, 449-50 (Utah 1984), the Utah Supreme Court refused to affirm a lower court's decision when the party did not raise the argument below.
Both Utah appellate courts have recently expressed discomfort with this inconsistency. In State v. South, 924 P.2d 354, 355 n.3 (Utah 1996), the Utah Supreme Court recognized the inconsistency in these prior rulings and carefully limited the scope of its decision to the narrow question before it without answering the question of "whether an appellee may raise an argument in defense of the lower court's judgment when that argument was not presented in the lower court. This same question came before the Utah Court of Appeals in State v. Montoya, 937 P.2d 145 (Utah Ct. App. 1997): the State raised arguments on appeal that it had not raised before the trial court, requesting that the court "utilize the judicially created doctrine of affirming . . . on other proper grounds, even if raised for the first time on appeal." State v. Montoya, 937 P.2d 145, 149 (Utah Ct. App. 1997). The court noted the Supreme Court's language in South, referring to inconsistent application of the principle, and declined to affirm on the bases asserted by the State on appeal. The court explained that, while an appellate court may affirm on any ground, two criteria must be met before the doctrine might be successfully asserted:
- the issue must be apparent on the record,
- the issue must have been properly and adequately briefed.
Id. at 149-50. Declaring that the State had failed adequately to brief the arguments it raised for the first time, the court refused to affirm on the asserted alternative grounds. Id. at 150.
The affirm-on-any-ground rule comes consistently under attack in Utah's appellate courts when the affirming ground is raised sua sponte. Most recently, Judge Davis noted his significant
concerns regarding the rule.
Today we decide a case that was not presented to the trial court, not argued to the trial court, not decided by the trial court, and not briefed or argued to this court. The majority
affirms the judgment of the trial court based on this court's power to "affirm on any ground." The genesis of the "affirm on any ground" approach in Utah is unclear,
and current statements of the approach are broad enough to encompass a virtual retrial of the case by the appellate court. However, it is well established that parties define the
parameters of their case and that, except on legal issues, it is improper for the appellate court to substitute its judgment for that of the trial court. In my view, application of the
"affirm on any ground approach by the majority in this case amounts to a determination that [the petitioner] is entitled to relief as a matter of law on whatever theory the appellate
court feels comfortable with, and nothing the parties may have done or omitted to do and nothing the trial court may have found would affect the outcome.
Bailey v. Bayles, 2001 UT App. 34, ¶18 (Davis, J., dissenting).
II. sua sponte Consideration of Issues Not Raised Below Should Be Prohibited
Despite the sua sponte affirmance rule's inconsistent application and the Montoya rule which permits
an appellee to raise an issue not raised below, the appellate courts continue to affirm on grounds never argued, raised, or briefed by any party. See, e.g., Bailey v. Bayles, 2001 UT App. 34, ¦ 9 & n.3; id. at ¦¦ 18, 19 (Davis, J., dissenting); Southland Corp. v. Semnani, 1999 UT App. 300, n. 1 (per curiam) (memorandum decision). There are weighty and legitimate reasons for considering issues sua sponte. Such reasons include considering whether the court has jurisdiction, whether the cause of action is prohibited by public policy (e.g., an illegal contract), and whether the trial court committed a fundamental error. Allan D. Vestal, sua sponte Consideration in Appellate Review,
27 Fordham L. Rev. 477, 499-503 (1958-59). However, constitutional principles and sound public policy demand that the appellate courts unequivocally prohibit sua sponte consideration of issues not raised below within the confines of these very limited exceptions.
Due Process Concerns.
Both the Utah and United States Constitutions provide that no person "shall be deprived of life, liberty or property, without due process of law." U.S. Const. amend. V; Utah Const. art. 1 ¤ 7.2 As the United States Supreme Court has explained:
At its core, the right to due process reflects a fundamental value in our American constitutional system. . . .
Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its
members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a "legal system," social
organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to
strive for achievements without the anxieties that would beset them in a disorganized society. Put more succinctly, it is this injection of the rule of law that allows society to reap
the benefits of rejecting what political theorists call the "state of nature."
American society, of course, bottoms its systematic definition of individual rights and duties, as well as its machinery for dispute settlement, not on custom or the will of strategically
placed individuals, but on the common law model. . . .
Boddie v. Connecticut, 401 U.S. 371, 374-75, 91 S. Ct. 780, 784 (1971). “The fundamental requisite of due process of law is the opportunity to be heard.' This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950) (quoting Grannis v. Ordean,
234 U.S. 385, 394, 34 S. Ct. 779, 783 (1914)); accord Nelson v. Jacobsen, 669 P.2d 1207, 1211-13 (Utah 1983).
Although this right to be heard does not always require that a Court grant a hearing to a litigant of pending action, "[i]n our judicial system, except in extraordinary circumstances
that are not present here, all parties are entitled to notice that a particular issue is being considered by a court and to an opportunity to present evidence and argument on that issue
before decision." Plumb v. State, 809 P.2d 734, 743 (Utah 1990). "Timely and adequate notice and an opportunity to be heard in a meaningful way are at the very heart of
procedural fairness." Id. (quoting Cronish Town v. Koller, 798 P.2d 753, 756 (Utah 1990) (quoting Nelson, 669 P.2d at 1211)); Bailey, 2001 UT App. 34, ¦18 (Davis, J., dissenting).
Because of these significant constitutional concerns, the courts generally strongly disfavor sua sponte consideration of arguments and issues not raised by either party, without the
adversely affected party receiving notice and being allowed to respond. See Gildea v. Guardian Title Co., 2001 UT 75, ¦11; Plumb, 809 P.2d at 743 ("Regardless of whether the procedures in this case are so extreme as to deny class counsel the due process guaranteed under article I, section 7, we find that, at a minimum, the trial court abused its discretion in adopting the findings of the special master after being informed that the parties had no notice that the special master was to review the reasonableness of attorney fees and that they had insufficient opportunity to participate in the proceedings the master conducted."); Jenkins v. Missouri, 205 F.3d 361, 367 (8th Cir. 2000) (ruling in case involving sua sponte consideration of issue and then dismissal that "procedural niceties equate with due process and must be afforded the parties"); Jefferson Fourteenth Assocs. v. Wometco De Puerto Rico, Inc., 695 F.2d 524, 525 (11th Cir. 1983) ("We reverse for the reason that the district judge dismissed the case sua sponte, depriving Wometco of its rights to procedural due process."); Wirth v. State Bd. Tax Comm'rs, 613 N.E.2d 874, 879-80 (Ind. Tax Ct. 1993) ("To deny a taxpayer the opportunity to address an issue raised sua sponte by the State Board would be a denial of due process."); Haynes v. Haynes, 606 N.Y.S.2d 631, 632-33 (N.Y. App. Div. 1994) ("Even were we to adopt the dissenting position as a threshold approach, the most minimal due process would still require us to grant the guardian ad litem - who did not appear on this appeal - an opportunity to respond to this sua sponte challenge from the bench, which was never raised by any party.").
Public Policy.
Not only are significant constitutional issues enmeshed in sua sponte consideration of matters not raised below, but significant public policy concerns inhere in sua sponte action of a court. These concerns stem from the constitutional and traditional role of the appellate courts in the American judicial system.
The Adversary System.
"The common law system of jurisprudence is based upon the adversary principle. Our courts are passive instrumentalities, available to right wrong, but the initiative is never theirs. Our courts require the catalyst of a litigant who seeks relief." Allan D. Vestal, sua sponte Consideration in Appellate Review,
27 Fordham L. Rev. 477, 487 (1958-59); accord Bailey, 2001 UT App. 34, ¦18 (Davis, J., dissenting) ("However, it is well established that parties define the parameters of their case
and that, except on legal issues, it is improper for the appellate court to substitute its judgment for that of the trial court."). By the very nature of the adversarial system, a
court is an arbiter, an independent decision maker upon whom litigants rely to address their arguments.
When a court acts sua sponte, however, it steps outside of its passive role, and threatens the adversarial model. "Preservation of the integrity of the adversarial system of
conducting trials precludes the court from infringing upon counsel's role of advocacy. . . . [T]he interests of justice are not enhanced when the court exceeds its role as arbiter by
reaching out and deciding an issue that would be otherwise dead. . . ." Girard v. Appleby, 660 P.2d 245, 247 (Utah 1983); accord Jenkins v. Weis, 868 P.2d 1374, 1383 (Utah Ct. App. 1994) (Bench, J., dissenting).
Although one may question the wisdom of adherence to the adversarial system, the system has long-since been adopted, and fairness dictates that courts assume their proper roles in the
model. This is evident when one considers the practice, custom, and tradition of the litigation process.
Courts allow litigants to stipulate the facts involved, to waive time limitations in connection with the filing of papers, and to decide when cases will be tried. Litigants decide
whether a law suit will be started and against whom. Courts allow litigants to waive certain claims and defenses and to establish the record to be considered by an appellate court.
Vestal, supra, at 488 (footnotes omitted). Accordingly, "attorneys are the ones who are fully informed on the litigation of the interests of their clients. They are the only ones who
are in a position to evaluate the whole picture. It follows that the attorneys have a right and duty to decide exactly what positions will be taken." Id. at 490. When a court acts sua sponte,
it risks that it will undermine the positions of private litigants patiently established after careful deliberation. As the Utah Supreme Court noted in 1984, "Parties may limit the
scope of the litigation if they choose and if an issue is clearly withheld, the court cannot nevertheless adjudicate it and grant corresponding relief." Combe v. Warren's Family Drive-Inns, Inc., 680 P.2d 733, 736 (Utah 1984).
Appellate Courts as Courts of Review. The second public policy concern of sua sponte consideration is that, when reviewing a trial court's decision, an appellate court is sitting in its role as a reviewing court.
As its name implies, a court of review does not, except in a limited number of cases, hear a case de novo. Its primary function is to decide whether the trial court erred in its disposition of the case. In doing this, the reviewing court not only determines the rights of the litigants actually involved, but also decides the rules of substantive law and procedure of the particular jurisdiction.
. . . [I]n the event of such a review, the record of the proceedings below is of fundamental importance. . . . All questions which may have an important bearing upon a client's claim
should be presented to the trial judge. This presentation may be made, in general, by a pleading, a motion, or an objection.
Richard V. Campbell, Extent to Which Courts of Review Will Consider Questions Not Properly Raised and Preserved - Part I, 7 Wis. L. Rev. 91 (1933). In its role as a reviewing court, an appellate court "is entitled to have the issues clearly defined with pertinent authority cited." State v. Larsen, 828 P.2d 487, 491 (Utah Ct. App. 1992) (quoting Williamson
v. Opsahl, 416 N.E.2d 783, 784 (Ill. App. Ct. 1981)).
When appellate courts are viewed in this light, it is clear that sua sponte consideration is outside of the court's appellate role. By considering an issue raised sua sponte,
the court is not reviewing the lower court's decisions for error. Rather, it has become an overseeing court, with unlimited powers, to take a case in any direction it wishes, considering
issues and facts de novo without factual and legal development in the proceeding below. See Bailey, 2001 UT App. 34, ¦ 18 (Davis, J., dissenting) ("In my view,
application of the “affirm on any ground' approach by the majority in this case amounts to a determination that the record establishes that [the petitioner] is entitled to relief as a
matter of law on whatever theory the appellate court feels comfortable with, and nothing the parties may have done or omitted to do and nothing the trial court may have found would affect
the outcome."). Such a role is obviously detrimental to the concept of ordered liberty and the rule of law, particularly when one considers the expectations of parties to litigation
created by the history of the adversarial structure of the common-law courts. This problem is exacerbated when a party is not given notice that an issue is being considered and is not
given an opportunity to respond.
Many times the courts of this state, however, have explained this rule as almost prudential, given for the benefit of the appellate courts only, and, consequently, waivable by them. See, e.g., State v. Bishop, 753 P.2d 439, 450 (Utah 1988) (considering issue not adequately raised or properly briefed despite statement that court should not be burdened with the majority of argument and research); Montoya, 937 P.2d at 150; Larsen, 828 P.2d at 491. Viewed in this light, the courts seem more willing to affirm trial court judgments on an issue raised sua sponte,
because by doing so the appellate courts burden only themselves with increased research and issue development. See, e.g., Bishop, 753 P.2d at 450; Larsen, 828 P.2d at 491.
What these decisions ignore, however, is that "[f]ollowing the formal [appellate] design, the scope of review is determined by the errors properly assigned by the appellant. The
appellee's sole interest is to defend his judgment against the various assignments of error, and he consequently has no interest in having the scope of review broadened beyond that
defined by the appellant." J. Dickson Phillips, Jr., The Appellate Review Function: Scope of Review, Law & Contemporary Problems, Spring 1984, at 9. Of course, an appellee is free to advance an alternative theory in support of the trial court's decision and against any arguments raised by the appellant. However, if the appellee has never raised such a theory before either the trial or the appellate courts, he or she has to that extent limited the scope of review. Having failed to argue the theory, the appellee has waived any interest it could claim in the appellate court affirming the trial court on the basis of such an argument.
By considering sua sponte an issue never raised, a court engages in a "scope-expanding" exercise "that calls for exactly the same weighing of conflicting values called for when formal [appellate] design is broken through in behalf of appellants[, e.g., to avoid unjust results, to declare an important legal principle, or for plain and fundamental errors]." Id. Accordingly, "the costs of departure from [appellate] design should be weighed before applying the ["affirm-on-any ground'] rule." Id. In other words, a court considering affirming on grounds raised sua sponte must carefully weigh the impact of such consideration.
Another facet of the sua sponte doctrine points up the possible inequity inherent in the practice: the fact that matters raised sua sponte may only be adduced to affirm error below; the doctrine cannot be applied to reversal:
The implementation of the doctrine of sua sponte consideration only to affirm can lead to some very anomalous results. The ultimate outcome of the litigation can well turn on the question of the nature of the error at the trial level. If the injured party sues and wins on an incorrect theory in the lower court, the appellate court might affirm on the correct theory. On the other hand, if the trial court makes a more egregious error and rules for the defendant on the incorrect theory, the appellate court will not reverse even though the correct theory demands it. To say that litigants must allow the nature of the error committed by the trial court to control rather than the rights of the litigants is foolish to say the least.
Vestal, supra, at 510 n.14.
Even more troubling is that these decisions run contrary to the policies expressed in the Utah Rules of Appellate Procedure. Rule 24(a)(9) states that a brief must "contain the
contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes, and parts of the record relied on." Utah R. App. P. 24(a)(9) (emphasis added). Under the appellate court's application of this rule, when a party does not raise an issue below or in its brief, the issue is "considered waived and will not be considered by the appellate court." Brown v. Glover, 2000 UT 89, ¦23.
Rule 24(b) requires that the appellee's brief also "conform to the requirements of paragraph (a)." Hence, an appellee is under the same obligation to include the grounds for
review of an issue not raised below. Thus, when an appellee fails to raise the issue, the waiver jurisprudence would suggest that such an issue is waived. However, when the appellate
court acts sua sponte it ignores this rule without any explanation why the appellate court should do so in favor of an appellee who has not asserted an interest in raising the issue.
III. The Appropriate Model for sua sponte Consideration
As suggested by the above discussion, the cases and secondary authorities strongly suggest that before a court engages in sua sponte consideration of an issue, it should give the parties notice that it is considering the issue and request briefing on the issue prior to decision. As one commentator noted:
If the court wants to consider a change in the law even though the parties to the appeal have not questioned the law, there is no reason why the court should not do so. What it should
not do, but what courts often do, is to write the opinion changing the law without advising the parties that it is considering a change in the law and requesting briefs and oral
argument on the potential change. This procedure abandons all elements of the adversary system and has the court acting as a law maker without regard to the parties. Both the
interests of the parties and the public are best served if the court informs the parties of the change it is considering and requests briefs from the parties and amicus curiae.
Robert J. Martineau, Fundamentals of Modern Appellate Advocacy 45-46 (1985) (footnotes omitted); see also Plumb v. State, 809 P.2d 734, 743 (Utah 1990) ("In our judicial system, except in extraordinary circumstances . . ., all parties are entitled to notice that a particular issue is being considered by a court and to an opportunity to present evidence and argument on that issue before decision."). Such a procedure would permit the parties to submit to the court legal and factual arguments, and, perhaps, party stipulations. By doing so, the court would permit the parties a chance to protect their interests, while at the same time protecting the court's legitimate interest in developing and refining important points of law.
Not only does asking for supplemental briefing make sense, but it is also workable. The Utah Court of Appeals often asks for supplemental briefing on issues that it raised sua sponte, with no apparent problem. See State v. Candelaria, 2001 UT App 264 (mem. decision); State v. Friedman, 2001 UT App 265 (per curiam) (mem. decision); Kelley v. Kelley, 2000 UT App. 236, ¦ 58 (Jackson, J., dissenting) ("Even so, we gave the Kelleys the chance to address this issue in supplemental briefs."); Sierra Club v. Dep't Environmental Quality, 857 P.2d 982, 985 (Utah Ct. App. 1993) ("Accordingly, we requested that the parties submit supplemental briefs addressing whether Sierra Club has standing to pursue this petition for review."); see also Gildea v. Guardian Title Co., 2001 UT 75, ¦13(stating, after discussing trial court's sua sponte consideration of Rule 11 sanctions, "although a hearing on the matter was not necessarily required, the district court should have given Marsh an opportunity, either orally or in writing, to show cause why he should not be sanctioned").
Further, as discussed in Montoya, the issue for sua sponte consideration should be one that is apparent in the record below.
If, in any way, the ground or theory urged for the first time on appeal is not apparent on the record, the principle of affirming on any proper ground has no application.
To hold otherwise would invite the prevailing party to selectively focus on issues below, the effect of which is holding back issues that the opposition had neither notice of nor an
opportunity to address. . . . The record must contain sufficient and uncontroverted evidence supporting the ground or theory to place a person of ordinary intelligence on notice that
the prevailing party may rely thereon on appeal.
Montoya, 937 P.2d at 149-50 (emphasis added). Support for this requirement also grows out of the party-driven litigation process. If, although a court may believe an issue that was not argued could have been argued successfully below, there is insufficient evidence on the face of the record to alert the opposing party that the other party will rely on it on appeal, it may be because the parties have stipulated not to litigate the issue or have intentionally not presented evidence as to the issue because it weakens what apparently to them is a stronger legal theory. See Vestal, supra, at 490 ("It follows that the attorneys have a right and duty to decide exactly what positions will be taken. . . . "As an almost universal rule, this court may very justly presume that the counsel who tried the case in the court below fully comprehends the issues which were necessary to be submitted to a jury in order to protect his client's rights. . . .'" (Quoting Nightingale v. Barnes, 2 N.W. 767, 774 (Wis. 1879) (dissenting opinion).).
IV. Conclusion
Given the significant constitutional questions raised and the public policies implicated in sua sponte consideration of issues never raised by any party, the Utah appellate courts should proscribe, either as a matter of precedent or rule, sua sponte consideration of issues unless each party is notified that such an issue is being considered and given the opportunity to raise arguments regarding that issue. Further, the courts should require such briefing only when issues are apparent on the record. Such a rule would protect the appellate court's legitimate interests, while safeguarding each party's role in the litigation.
V. Epilogue
The ringing telephone jarred him from the report regarding the new project. "Hello," he paused. "How are you doing, John? Have you heard anything
from the Supreme Court yet?" His brow furrowed as the voice on the telephone continued. "I thought you said that we had a good chance of winning." He paused again.
"What? We won but lost? What do you mean?" The voice on the telephone continued for what seemed like five minutes. "I didn't think that was even an issue. Besides, didn't
the manager say in his deposition that they had contracted with us?" The man stood in disbelief and shook his head. "I can't believe it," he said, his voice strained and
raising.
In the next building, the appellee's lawyer sat in her chair, a little subdued after reading the opinion. "Hollow victory," she thought. "I sure am glad that deposition
hadn't been submitted."
Footnotes
1 The author gratefully acknowledges the valuable assistance of Scott M. Ellsworth in stimulating thoughts and ideas through countless hours of debate regarding the role of the appellate
court. His further assistance in editing and preparing the piece was invaluable.
2 The Utah Supreme Court has ruled that "[t]he due process clause of the state constitution is substantially the same as the Fifth and Fourteenth amendments to the Federal
Constitution," and that "[d]ecisions of the Supreme Court of the United States on the due process clauses of the Federal Constitution are "highly persuasive' as to the
application of that clause of our state constitution." Untermyer v. State Tax Comm'n, 129 P.2d 881, 102 Utah 214 (Utah 1942). Accordingly, this article will not differentiate the
analysis of the constitutional questions between the United States and Utah state constitutions.
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