531 P.3d 781
Utah Ct. App.2023Background
- Ron Demill, a Utah corrections officer, admitted during an internal UDC interview that he had masturbated in a staff restroom while on duty at a state prison.
- POST charged Demill under Utah Code §53-6-211(1)(e) (sexual conduct while on duty) and recommended a four-year suspension of his peace officer certification.
- At the ALJ hearing Demill did not dispute the admission; the ALJ found the admission credible (applying the Mauchley trustworthiness approach) and concluded that solitary masturbation fell within the administrative definition of “sexual conduct” and occurred “on duty.”
- Demill argued the conduct was protected by a constitutional privacy right, invoking Lawrence v. Texas and an administrative rule that incorporates Lawrence, and also argued interview questions were overbroad.
- The ALJ declined to extend Lawrence’s home-based privacy protection to a workplace restroom, ruled POST proved a violation by clear and convincing evidence, and sent the matter to the Council.
- The POST Council adopted the ALJ’s findings and suspended Demill’s certification for 3.5 years; Demill sought judicial review arguing the ALJ/Council should have recognized or extended Lawrence privacy protections.
Issues
| Issue | Demill's Argument | POST's Argument | Held |
|---|---|---|---|
| Whether Lawrence’s privacy right covers private sexual conduct in a workplace restroom | Lawrence protects "other private places," so workplace restroom masturbation is constitutionally protected | Lawrence protects intimate conduct in the home (and limited other contexts); workplace conduct is distinguishable and not protected here | Court: Lawrence is distinguishable; ALJ correctly declined to extend privacy right to workplace restroom |
| Whether solitary masturbation qualifies as “sexual conduct” under POST rules | Definition contemplates touching another person; solitary conduct not covered | Definition covers touching of genitals and can apply to solitary conduct intended to arouse | Held: ALJ correctly found the rule can apply to solitary masturbation; POST proved violation |
| Whether conduct occurred "on duty" | Conduct in a staff restroom on prison property is private and not necessarily "on duty" | On prison property and during employment, so conduct is on duty per rule | Held: ALJ correctly treated restroom conduct on prison premises as on duty |
| Whether the ALJ had authority to extend constitutional privacy law | ALJ can adjudicate and address constitutional defenses, including extending privacy doctrine | ALJ’s adjudicative authority is limited to applying existing law; extending constitutional rights is for courts | Held: ALJ correctly refused to extend Lawrence; extension of constitutional rights is for courts, and ALJ lacked authority to expand doctrine here |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (2003) (establishes liberty interest protecting certain private, consensual sexual conduct)
- State v. Mauchley, 67 P.3d 477 (Utah 2003) (trustworthiness standard for assessing confessions/admissions)
- Associated Gen. Contractors v. Board of Oil, Gas & Mining, 38 P.3d 291 (Utah 2001) (standard of review for agency legal questions)
- Garrity v. New Jersey, 385 U.S. 493 (1967) (limits on compelled statements in public-employee investigatory settings)