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The Fundamentalist Church of Jesus Christ of Latter-Day Saints V

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The Fundamentalist Church of Jesus Christ of Latter-Day Saints V Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs 2012 The undF amentalist Church of Jesus Christ of Latter-Day Saints v. Thomas C. Horne; Bruce R. Wisan; Mark Shurtleff; and Hon. Denise Posse Lindberg, et al. : Opening Brief of Appellee Utah Supreme Court Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc2 Part of the Law Commons Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Rodney R. Parker; Richard A. Van Wagoner; Frederick Mark Gedicks; Snow, Chrstenensen and Martineau; Kenneth A. Okazaki; Stephen C. Clark; Jones, Waldo, Holbrook and McDonough; Attorneys for Appellees. Mark L. Shurtleff; Utah Attorney General; Thomas C. Horne; Arizona Attorney General; Jeffrey L. Shields; Zachary Shields; Callister, Nebeker and Mccullough; Attorneys for Appellants . Recommended Citation Brief of Appellee, The Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, No. 20120158.00 (Utah Supreme Court, 2012). https://digitalcommons.law.byu.edu/byu_sc2/3155 This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH SUPREME COURT FUNDAMENTALIST CHURCH OF JESUS CHRIST OF LATTER-DAY Case No. 20120158-SC SAINTS, Plaintiff and Appellee, THOMAS C. HORNE; BRUCE R. WISAN; MARK SHURTLEFF; and HON. DENISE POSSE LINDBERG; et al., Defendants and Appellants. OPENING BRIEF OF APPELLEE Review of Question of Law Certified by the United States Court of Appeals, Tenth Circuit MARK L. SHURTLEFF UTAH ATTORNEY GENERAL RODNEY R. PARKER (4110) 160 East, 300 South, Fifth Floor RICHARD VAN WAGONER (4690) P.O. Box #142320 FREDERICK MARK GEDICKS (7860) Salt Lake City, UT 84114 SNOW, CHRISTENSEN & MARTINEAU 10 Exchange Place, Eleventh Floor THOMAS C. HORNE Post Office Box 45000 ARIZONA ATTORNEY GENERAL Salt Lake City, Utah 84145-5000 1275 West Washington Telephone: (801)521-9000 Phoenix, Arizona 85007-2997 KENNETH A. OKAZAKI (3 844) JEFFREY L. SHIELDS STEPHEN C. CLARK (4551) ZACHARY SHIELDS JONES, WALDO, HOLBROOK & MCDONOUGH CALLISTER NEBEKER & MCCULLOUGH 170 South Main Street, Suite 1500 p,Lgp 10 E. South Temple, Suite 900 Salt Lake City, Utah 841QJTAH AppELLATE COURTS Salt Lake City, UT 84133 Telephone: (801) 521-320D APR 2 0 2012 Attorneys for AppellantsDigitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,Attorneys may contain errors. for Appellees TABLE OF CONTENTS ISSUE PRESENTED 1 STATEMENT OF THE CASE 1 SUMMARY OF ARGUMENT 1 ARGUMENT 4 I. THIS COURT HAS ALREADY DECIDED LINDBERG AND SHOULD NOT MODIFY OR COMMENT ON IT IN ANSWERING THE CERTIFIED QUESTION 4 A. Utah Law Confines This Court to Answering Abstract Questions of Law In the Certification Process 4 B. The Question of Law Accepted By This Court Does Not Permit Modification or Explanation ofLindberg 6 II. DISMISSAL OF AN EXTRAORDINARY WRIT PETITION IS NOT A JUDGMENT ON THE MERITS HAVING PRECLUSIVE EFFECT 7 A. The General Rule 7 B. Adoption by Utah Case Law 8 III. THE PRECLUSIVE EFFECT OF A LACHES DISMISSAL OF AN EXTRAORDINARY WRIT PETITION TURNS ON WHETHER A COURT FOUND THE NECESSARY FACTS AND APPLIED THE REQUIRED LEGAL ELEMENTS, NOT ON WHETHER THE DECISION WAS IN WRITING 11 A. Because This Court Is Not a Fact-Finding Court, Its Rejection of an Extraordinary Writ Petition Cannot Resolve the Underlying Merits Except In Unusual Circumstances 11 B. Utah Law No Longer Requires That Merits Decisions Be In Writing 12 C. The Day and Johnson Cases Cited By the Tenth Circuit Both Adhere to the Rule That Preclusion Turns on the Nature of the Underlying Factual Inquiry 14 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. D. There Can Be No Preclusive Effect When the Legal Elements of Laches Have Not Been Weighed and Balanced Against Each Other 15 IV. SHOULD THIS COURT DECIDE TO DISCUSS THE PRECLUSIVE EFFECT OF LLNDBERG, IT SHOULD FIND UNDER THE FOREGOING PRINCIPLES THAT LLNDBERG WAS NOT A DECISION ON THE MERITS HAVING PRECLUSIVE EFFECT 16 A. Traditional Res Judicata Analysis Leads to the Conclusion This Court's Dismissal of the Petition for Extraordinary Writ on the Basis of Laches Was Not a Judgment on the Merits 17 B. Because Defendants' Actions Violate Structural Constraints Lmposed by the Establishment Clause, Laches Ls Not a Proper Defense to the Underlying Claims 21 1. The Constitution's Structural Limitations 21 2. The Establishment Clause as Structural Limitation 23 CONCLUSION 25 ADDENDUM 1. Tenth Circuit Order Certifying State Law Questions, March 2, 2012 2. FLDS Church v. Lindberg, 2010-UT 51, 238 P.3d 1054 3. U.S. District Court Memorandum Opinion and Order, February 24, 2011 (App. 22-69) Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. TABLE OF AUTHORITIES CASES ACLUv. City & Cty. of Allegheny, 492 U.S. 573 (1989) 24 Borden v. SchoolDist., 523 F.3d 153 (3d Or. 2008) 23 Burkholtzv. Joyce, 972 P.2d 1235 (Utah 1998) 1 City of N.Y. v. Clinton, 524 U.S. 417 (1998) 22 Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2005) 23 Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986) 22 Day v. Estate ofWiswall, 93 Ariz. 400, 381 P.2d 217 (1963) 4, 14, 15 Dennis v. Higgins, 498 U.S. 439 (1991) 22 Downesv. Bidwell, 182 U.S. 244 (1901) 22 Engel v. Vitale, 370 U.S. 421 (1962) 24 FOCUS v. Allegheny Cnty. Ct. of Common Pleas, 75 F.3d 834 (3d Cir. 1996) 8 Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51,238 P.3d 1054 passim Gates v. Taylor, 2000 UT 33, 997 P.2d 903 4 Hileyv. United States, 807F.2d623 (7th Cir. 1986) 8 Holden v. NL Industries, Inc., 629 P.2d428 (Utah 1981) 6 INSv. Chadha, 462 U.S. 919 (1983) 22 Johnson v. City ofLoma Linda, 24 Cal.4th 61, 99 Cal. Rptr. 2d 316, 5 P.3d 874 (2000) 4, 14 Johnson v. Sanders, 319 F. Supp. 421 (D. Conn. 1970) 23 Kennecott Copper Corp. v. Salt Lake County, 575 P.2d 705 (Utah 1978) 2, 12 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. Madsenv. Borthick, 769 P.2d 245 (Utah 1988) 18 Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950) 9 McCollum v. Board of Educ, 333 U.S. 203 (1948) 24 Papanikolas Bros. Ents. v. Sugarhouse Shopping Center Assoc, 535 P.2d 1256 (Utah 1975) 11, 15 Rennv. Board of Pardons, 904P.2d677 (Utah 1995) 9 Serbian E. Orth. Diocese v. Milivojevich, 426 U.S. 696 (1976) 24 Smith v. Bayer Corp., 131 S.Ct. 2368 (2011) 6 Society of Prof. Journalists v. Bullock, 743 P.2d 1166 (Utah 1987) 3 South Ridge Bapt. Ch. v. Industrial Comm'n, 911 F.2d 1203 (6th Cir. 1990) 23 State v. Barrett, 2005 UT 88, 127 P.3d 682 8, 9, 10 State v. Gaydos, 81 S.W.3d 186 (Mo. Ct. App. 2002) 23 State v. Lovegren, 798 P.2d 767 (Utah Ct. App. 1990) 11 United States v. Dean, 752 F.2d 535 (5th Cir. 1985) 8 United States v. Holland, 66 F.3d 339 (10th Cir. 1995) 8 OTHER AUTHORITIES 16B C.A. Wright, et al, FEDERAL PRACTICE & PROCEDURE § 4004.1 9 18 C.A. Wright, et al, FEDERAL PRACTICE & PROCEDURE § 4405 6 18A C.A. Wright, et al, FEDERAL PRACTICE & PROCEDURE § 4445 7, 10,12 Carl H. Esbeck, The Establishment Clause as a Structural Constraint on Governmental Power, 84IOWAL.REV. 1 (1998) 24 I Laurence Tribe, AMERICAN CONSTITUTIONAL LAW § 2-3 (3d ed. 2000) 22 Philip Bobbitt, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 230(1982) ^^^^^ THE FEDERALIST NO. 9 (Hamilton) 21 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated-iv OCR,- may contain errors. UTAH CONST, art. VIII, § 3 1,6 UTAHR.APP.P.41 1,5 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. ISSUE PRESENTED Pursuant to the Tenth Circuit Court of Appeals' Order Certifying State Law Ques­ tions dated March 2, 2012, and this Court's Order of Acceptance dated March 13, 2012, the following question has been certified to this Court pursuant to UTAH R. APP. P. 41: Under Utah preclusion law, is the Utah Supreme Court's discretionary re­ view of a petition for extraordinary writ and subsequent dismissal on laches grounds a decision "on the merits" when it is accompanied by a written opinion, such that later adjudication of the same claim is barred? STATEMENT OF THE CASE Appellee adopts the statement of the case in the Tenth Circuit certification order, which is included as Addendum A to this brief. SUMMARY OF ARGUMENT When a federal court certifies a question of state law to this Court, both the Utah Constitution and this Court's rules limit this Court's jurisdiction to answering the ques­ tion of law presented. UTAH CONST., art. VIII, § 3; UTAH R. APP. P. 41; Burkholtz v. Joyce, 972 P.2d 1235, 1236 (Utah 1998).
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