The Utah Supreme Court’s most recent opinion, State v. Clark, 2011 UT 23, was authored by Justice Lee, and, in what seems to be emerging as a trademark of his opinions, brings analytical clarity to some legal analysis that had been somewhat imprecise.
Background
The underlying case in State v. Clark involved the state’s prosecution of a juvenile for sexual abuse of his minor siblings. However, the appeal itself was brought, not by Clark or the state, but by the victims. Normally, Utah law contemplates that the perpetrator of sexual abuse will, if he or she is able, pay the costs of treatment for his or her victims:
The convicted offender shall be ordered to pay, to the extent that he or she is able, the costs of his or her treatment, together with treatment costs incurred by the victim and any administrative costs incurred by the appropriate state agency in the supervision of such treatment. If the convicted offender is unable to pay all or part of the costs of treatment, the court may order the appropriate state agency to pay such costs to the extent funding is provided by the Legislature for such purpose and shall order the convicted offender to perform public service work as compensation for the cost of treatment.
As is evident from the statutory language itself, a victim’s right to payment of his or her treatment costs is not absolute, but depends on whether the perpetrator has the means to pay for treatment, and, if not, whether the applicable state agency has been allocated funds for treatment costs.
In the Clark case, the district court initially ruled that, because Clark was a minor (and because he was incarcerated), he was unable to pay treatment costs and DCFS was obligated to pay for the victims’ treatment costs pursuant to section 76-3-409(2) of the Utah Code. DCFS immediately asked the district court to reconsider its ruling, on the ground that the legislature had not provided DCFS with funding to pay for treatment costs of sexual abuse victims. The district court did reconsider its ruling and vacated its order that DCFS pay for the victims’ treatment costs.
The victims subsequently appealed the amended order, purportedly based on the following statutory authorization:
Adverse rulings on these actions or on a motion or request brought by a victim of a crime or a representative of a victim of a crime may be appealed under the rules governing appellate actions, provided that an appeal may not constitute grounds for delaying any criminal or juvenile proceeding.
Utah Code Ann. § 77-38-11(2)(b).
Analysis
Justice Lee, writing for a unanimous Court, found that the Utah Supreme Court lacked jurisdiction over the victims’ appeal. This determination was based on the fact that the Utah state legislature, in what appears to have been a legislative drafting mistake, eliminated crime victims’ statutory right to appeal in May of 2009. A year later, effective May of 2010, the legislature re-instated the right of appeal for victims, through legislation that contained the following language in its explanatory (non-binding and non-codified) section: “This bill adds back in subsections inadvertently deleted in a previous bill that apply to appellate rights for victims . . . .” Despite the fact that it seems clear that the legislature never intended to remove the right of appeal for crime victims, the Court held that “[a]ny suppositions about what the legislature may have intended cannot properly override what it actually did.” Accordingly, the Court enforced the statute and dismissed the appeal for lack of jurisdiction.
In addition to its relatively straightforward jurisdictional analysis, the Court paused to take some time and clarify the rules about retroactive application of laws. The Utah Code sets out the following rule: “A provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.” Utah Code Ann. § 68-3-3 (emphasis added). In Clark, the Court makes two things clear: (1) the relevant date for determining which law or rule applies varies depending on whether the rule is substantive of procedural; and (2) the judge-made exceptions to the statutory rule are very narrow.
Retroactivity and Substance v. Procedure
The difference between a substantive law and a procedural rule is simple to comprehend in theory, but a little difficult to describe and often messy in practice. To use a slip-and-fall case as an example, it is the substantive law that determines whether or not a business with wet floors is responsible for your injuries, and the procedural rules that set out the process by which the substantive law is applied to the facts of your case.
In the past, the Utah Supreme Court had recognized an “exception” to the general bar against retroactivity when the law sought to applied retroactively was procedural rather than substantive. In other words, if a procedural rule was changed after a case was initiated, the new rule could applied to the case rather than the one in effect when the case began. The Court, in Clark, correctly (in my view) notes that, rather than being an “exception” to the general rule against retroactivity, the procedural “exception” was actually not an exception at all:
The difference is in the nature of the underlying occurrence at issue. On matters of substance the parties’ primary rights and duties are dictated by the law in effect at the time of their underlying primary conduct (e.g., the conduct giving rise to a criminal charge or civil claim). When it comes to the parties’ procedural rights and responsibilities, however, the relevant underlying conduct is different: the relevant occurrence for such purposes is the underlying procedural act (e.g., filing a motion or seeking an appeal). The law governing this procedural occurrence is thus the law in effect at the time of the procedural act, not the law in place at the time of the occurrence giving rise to the parties’ substantive claims.
This is a helpful clarification that I think most (though not all) attorneys intuitively understand and will make it easier for both counsel and judges dispose of a few poorly formulated arguments at the district court level.
Exceptions to the Rule Against Retroactivity are Narrow
The second clarification that comes out of the Clark opinion helps attorneys understand the nature and extent of the actual substantive exception to the statutory rule against retroactivity. In the past, the Utah Supreme Court has recognized that a law will apply retroactively when the it is clear that the law was passed merely to “clarify” the meaning of the existing law. See, e.g., Hutter v. Dig-It, 2009 UT 69, ¶ 16. Analytically, this “exception” seems to be the functional equivalent of near-express retroactive clarification of legislative intent. In order for the “exception” to apply, you have to somehow determine that the new law is actually an accurate statement of the meaning of the old law — even though the plain language of the old law would seem to indicate otherwise.
In Clark, there was no express indication that the Utah state legislature passed the law reinstating crime victims’ appellate rights as a “clarification” of any existing law; but it did seem fairly clear that it passed the law to reverse a deletion that it had never intended to make. Just as is the case when the legislature clarifies the meaning of a prior law that did not clearly reflect its intent, it appears that the plain text of the altered version of the crime victims’ rights statute was not consistent with the actual legislative intent.
One would do well to pause and ask whether there is any real difference between the two situations.
If I had to hazard a guess, I suspect that, going forward after Clark, the Utah Supreme Court would decline to apply the clarification exception to the rule against retroactivity unless the Court found some ambiguity in the plain text of the law the new law was alleged to have clarified. In the Clark case, there was no ambiguity — the legislature just messed up and repealed part of the law it had wanted to leave on the books. In correcting its mistake, the legislature could have specifically made clear that the appellate rights of crime victims were retroactively reinstated, but it did not do so. Even though the legislative intent statement gives someone a decent argument that the law was intended to be retroactive, where the statutory rule specifically states that retroactivity only exists where “expressly” stated, the Court likely reached the correct result.
Summing Up
I think that all of this means that there are only two narrow exceptions to the rule against retroactivity. If you can show that the prior version of a law was ambiguous and establish circumstantial (or express) legislative intent to clarify, then you might be able to get what amounts to a retroactive application. Second, if you can get an express statement, in the law itself, that the law applies retroactively, you’ll get retroactive application.
Thus, the message of the Clark case for attorneys and litigants is that strong circumstantial evidence of intent for retroactive application is not enough when the plain text of the law present no ambiguity. There’s also a message in this for the legislators: if you messed up and accidentally repealed something, correct your mistake in express, binding statutory language — otherwise, the Court will likely only implement the correction going forward.
Curt Bentley is a partner in Bentley Briggs & Lynch, PLLC. Feel free to distribute and use content from this post with proper attribution.
