Currier v. Holden

GARFF1, Before GREENWOOD and ORME, JJ.

OPINION GREENWOOD, Judge: Stephen and Carl Petitioners Currier court reverse McClellan seek to have this respective of their dismissals ground corpus on the for writs of habeas barring of limitations these that the statute petitions is We conclude unconstitutional.2 period in the limitation Utah Code is an unreason- § able limitation on the for a writ that vio- I, petitioners’ rights under Article sec- lates to seek a tion Utah Constitution We, remedy in courts. there- civil fore, dismissals and remand reverse both for consideration of their sub- these cases claims. stantive

FACTS have consolidated these two we opinion, pres- we purposes of this cases for separately. ent their facts v. Holden Currier charged with the first After Currier was degree felony, sexual abuse of a child 3, 1988, plea into a he entered October whereby pled guilty he to a second bargain However, the trial degree felony. eighteen months court sentenced Currier required him to serve six probation and County Jail as a months the Carbon attempted probation, he condition Kendall, Stephen Ogden, and Kathryn guilty plea. brought his Currier withdraw Currier, Draper, appellant No. alleged in which he that the two motions 920467-CA. wrongful from plea bargain resulted Aeschbacher, pressure part on the of his counsel City, Lake undue Steven J. Salt and claimed that his counsel admitted un- appellant in No. 930123-CA. instances, because, Garff, many Judge Regnal sitting by spe- the State re- W. 1. Senior pursuant appointment petitioner’s arguments cial to Utah Code Ann. sponded with identical 78-3-24(10) (1992). arguments, have counter consolidated opinion. purpose See two cases for the present 2. Because the cases common constitu- 3(b). R.App.P. concerning questions tional the same 10, 1992, duly April the trial court 1992 and on pressuring peti- him. When Currier’s guilty his denied these motions to withdraw tion was filed. appealed his conviction. Cur-

plea, Currier petition, his Currier claimed ineffec- re- dropped appeal rier later and was tive assistance of trial counsel at the time remaining probation. jail, leased from on plea agreement his and at his sentenc- Subsequently, the State revoked Currier’s ing. alleged He that attorney his used probation positive for a after he tested undue wrongful pressure and him to induce returned him to controlled substance and to enter plea bargain.4 into a Currier prison. claimed his counsel had him convinced drop original appeal agree his and to not to 21, 1991, co-defen- On October Currier’s against file suit counsel because counsel dant, affidavit, Marquez, Mr. executed an arrange could for his release from the six later, notarized one week in which he re- month term he serving county was previ- damaging testimony canted he had jail through probation suspension ously given against Currier. After Currier his sentence. copy received a of this affidavit Novem- 1991, he contacted the contract attor- ber responded petition The State to Currier’s Prison, neys for the Utah State for assis- by filing a motion to dismiss based on the petition tance in for a writ of limitations, claiming statute of that six seeking him habeas to allow to with- passed months had since Currier received guilty plea. draw his On December withdrawing damaging affidavit attorneys the contract received Curri- testimony. granted After the district court rough petition. er’s edited draft of his Im- dismiss, the State’s motion to Currier filed thereafter, mediately Currier trans- was appeal. County ferred to San Juan Jail. McClellan v. Holden 6, 1992, approximately January On Curri- 28, 1988, August days prior On two attorneys er sent a letter to the contract trial, original public McClellan’s defender Prison, the State and received them a from assigned withdrew and court him new revised for the writ and his McClellan, however, counsel. on insisted transcripts. Along papers with these trial, proceeding to after which he was attorneys stating sent a memorandum that rape convicted of and sentenced to five because out Currier had been moved years to life in the Utah State Prison. jurisdiction they longer could no as- him sist and he would have to seek assis- trial, About a month after the the trial County tance from the San contract Juan rehearing request court received a for a attorney. requested appoint- Currier letter from which the trial McClellan attorney, ment with this contract but was court treated as a motion for a new trial. unable to see him for five weeks. letter, In his McClellan claimed denial of effective assistance of counsel because his Currier was transferred back to the Utah prepare attorney new had not had time to State Prison about March 1992. At for trial. The trial court denied McClel- gave prison that time he contract attor- February trial on lan’s motion for new neys his for writ of habeas the court. exhibits for them to file with counsel, paper to him McClellan’s James Currier’s work was returned appeal of the prison signature Rupper, at the March filed a notice of his bargain, prison attorneys plea 3. The tence of a his counsel had contracts with who assist prisoners by reviewing complaints concerning interest because counsel undisclosed conflict of advising co-defendant, and, their incarceration and them in represented Currier’s fi- also preparing corpus. writs of habeas indicating nally, both he then had affidavits that incrimi- a witness and a victim recanted critical Specifically, Currier claimed that he did not testimony concerning nating abuse the sexual signing know what he was when his he waived charges against him. preliminary hearing, he tried to withdraw his guilty plea prosecutor when the denied the exis- limitations in Code Ann. 78-12-31.1 sentence, complains that McClellan original (1992). The the status district concluded as to had no communication he February date the trial appeal counsel and states from attempts new for a continually frustrated court denied McClellan’s motion he was 12, 1990, Rupper. July trial, On running commenced the of the statute to contact Mr. with Mr. finally communicated purposes the writ of McClellan of limitations him the status of Rupper informed appeal- who petition. McClellan Kent Willis appeal announced that his of his writ. ed dismissal January handling his case since had been says that he was unable 1990. McClellan ISSUES May until 1991. At Mr. Willis to contact him that he antici- that time Mr. Willis told court, appeals presenting In their for new pated filing a motion remand petitioner claims that the three-month each Appeals. trial with the Utah Court of is unconstitutional. of limitations statute the court of May McClellan wrote argues the statute that Specifically, Currier that the trial appeals and was informed period (1) provide not a reasonable does Au- On transcript not been located.5 had relief, (2) pro- no to file for contains 14, 1991, withdrew as coun- gust Mr. Willis (3) delay, requires for excusable and vision replaced Elkins him. sel and Donald proce- judicial rule of invalidation because to have says he was “never able McClellan subject should to a statute dure not be from Mr. Elkins.” any communication argues limitations. McClellan 30, 1991, September McClellan sub- On be- is unconstitutional statute of limitations corpus to the mitted his writ of habeas own extraordinary (1) it cause undermines petition, In this Third District Court.6 writ, (2) right to purpose of the limits the assistance of McClellan claimed ineffective remedy by provided of law due course as counsel, appellate and trial and counsel Constitution, I, section the Utah Article counsel to complained about failure of (3) problems in admin- practical creates and unavailability perfect an and the appeal, ambiguity. because of its inherent istration transcript. his trial by evaluat- we resolve both cases Because Aeschbach- appointed constitutionality The trial Mr. un- ing court the statute represent his I, er as counsel to McClellan 11 of Article section the Utah Consti- der thirty gave McClellan tution, habeas action individually not address need days in which to amend his habeas by the petitioners. other issues raised his amended petition. McClellan submitted January on

petition ANALYSIS moved to On March State ha- petition writ of dismiss McClellan’s I. of Limitations Statute grounds, including several beas on cases In both of the consolidated untimely. two weeks it About was opinion, petitioners claim that Utah memorandum McClellan submitted a later Ann. violates Code 78-12-31.1 § to dis- motion opposition State’s I, “open provision,” Article Section courts miss, inability his to obtain claiming that it un because ap- 11 of Utah Constitution his of counsel for effective assistance reasonably curtails based on the peal preclude dismissal should remedy in state court. right to seek a civil hearing, the After a limitations. requires petition Code Ann. the habeas § district court dismissed statute of barred the three-month stamped was the trial 6. McClellan’s 5. In November or December of McClellan, used the October the State transcript finally how- located. was length ever, time calculate the requested appeal at October date to dismissal of his elapsed purposes limita- statute of January appeal was end of dis- prosecute. tions. missed for failure Son, Hughes months: Water Beds v. & 782 P.2d 188 three Within (Utah 1989); Horton v. Goldminer’s to a writ of habeas pursuant relief For (Utah 1989); apply Daughter, 785 P.2d 1087 This limitation shall Ber corpus. grounds petitioner ry Berry Corp., as to known ex rel. v. Beech Aircraft grounds which in the exercise (Utah 1985); but also to 717 P.2d 670 Velarde v. In diligence should have been of reasonable Comm’n, (Utah App. 831 P.2d 123 dustrial peti- by petitioner known or counsel for 1992). However, language neither the tioner. open provision supreme courts nor provision a statute of limita court discussion about the indi Id. This statute acts as “requires scope it a lawsuit to be protective tions because cates that should be time after specified filed within a invalidating repose. limited to statutes legal right has violated or the reme been supreme court views section as hav- dy wrong for the committed is deemed Horton, ing potentially application. broad v. Beech Berry Berry waived.” ex rel. open provi- at 1093. The courts Corp., 717 P.2d primarily partic- sion is not concerned with Aircraft 1985); Utah Code 78-12-1 ular, action, causes of but rath- identifiable distinguishable from a statute of re It is legal availability er with the remedies to the run pose which bars action after integ- “in the vindicate individuals’ interest period beginning with the ning of a time rity persons, property, reputa- and of their inju an event other than the occurrence of 677 n. 4. Berry, tions.” ry underlying Berry, the cause of action. Furthermore, principles the fundamental 717 P.2d at 672. underlying open provision apply courts Open II. The Courts Provision equally of limitations as to stat- to statutes difference Despite significant repose. open provision courts utes of limitations and stat between statutes of guarantees “access to the courts and a repose, categories of time limi utes both procedure that is on fairness judicial based right to impact tations an individual’s seek prevents arbitrary depri- equality,” and and right in state courts. In this redress designed to vation of “effective remedies upon has a constitutional dimension based rights.” Id. at 675. protect basic individual I, 11 Article Section of the Utah Constitu protection specifically 11 extends Section University tion. See Condemarin v. “ from, and to right ‘the to be free obtain (Utah Hosp., 775 P.2d 358 This for, unjustified intrusions on judicial relief provision states: ” (quoting personal security.’ Id. at 680 open, every per- All courts shall be 651, 673, Wright, 430 U.S. 97 Ingraham v. son, injury to him in his for an done (1977)). 711 51 L.Ed.2d S.Ct. property reputation, or shall person, Horton, P.2d at To 785 See also law, remedy by due course of which have imposes 11 accomplish purpose, this section without denial or shall be administered protection legislature for the limits on the unnecessary delay; person and no shall injured persons who are isolated soci- defending prosecuting or be barred from lacking influence. ety political Berry, State, by him- in this before tribunal Condemarin, 676; 775 P.2d at 717 P.2d at counsel, any cause to which civil self J., (Zimmerman, concurring). 367 party.7 he is a certainly apply principles These appellate court yet as no Utah The consti- at issue these cases. statute limitations under analyzed a has statute right for habeas tutional line of cases provision, significant this right prison- individual relief is a under this basic repose has examined statutes group needing protection ers constitute a Valley provision. Sun See 1983)). "protect and It enabled the courts to pointed his dissent 7. As Chief Justice Hall out in Condemarin, provision rights only "create a existing in new this did not with in accordance enforce legal remedy right or a new of action." Wight (quoting remedies.” Id. Brown known Condemarin, (quoting P.2d at 378 n. 14 775 31, 34, man, (1915)). 47 Utah 151 P. Borthick, (Utah P.2d 629 Madsen v. 1990) (Utah Cook, 786 P.2d society and v. they isolated are because P.2d 547 (citing Fernandez influence. political lack 1989)). supreme court note that the Finally, we specific distinctions should stated that has case, spe the district courts In issue the court from the basic not divert cifically their decisions to dismiss based constitutionality of a stat- underlying the corpus re for habeas respective petitions provision: the open courts ute under limitations which upon lief a statute of legislative question is whether critical challenge as unconstitutional. petitioners remedy by litigant “a denies a enactment appeals, the State response to both Horton, P.2d at law.” due course of claims Utah Code 1092; P.2d at 679. For Berry, 717 enactment, (1992), legislative deserves as a reasons, agree petitioners that with validity. City strong presumption barring limitations statute of Christensen, Monticello v. un- corpus relief merits review for habeas argues that statutes It open provision.8 courts der the “ ‘not be declared unconstitutional should basis there is no reasonable unless 78- to review section Our decision conforming they can be construed provision open courts 12-31.1 under the ” requirements.’ Id. to constitutional framework specific analytical invokes Investigation, 7th (quoting In re Criminal supreme court to struc developed by the (Utah 1988)). Ct., Dist. part This two test ture section 11 review. However, limita because a statute abro inquires into whether first impacts the constitutional tions provides “an existing remedy gating an corpus, which petition for a writ of habeas reme and reasonable alternative effective remedy protected under Article as a civil second, remedy is dy,” and if no alternative Constitution, I, the 11 of the Utah Section examines the statute provided, whether validity con presumption of does not usual economic evil” eliminates “a clear social or statute. trol our review of this through means that are not unreasonable 680; arbitrary. Berry, 717 P.2d at see or Furthermore, Sharp, 858 Hipwell v. 1094; Horton, 785 P.2d at Condema also (Utah 1993), 4 Justice Hall P.2d 988 n. rin, 775 P.2d 358.9 majority a of the Utah noted that agreed opin had Condemarin Court III. of Review Standard constitutionality of a analyzing the ion that open provi courts appeal statute under the Generally, considering an heightened level of re implicated a a for a writ of sion from a dismissal of (discussing v. Uni deference to view. Id. Condemarin corpus, we accord no 1989)). (Utah Hosp., 775 P.2d 348 upon versity which the trial the conclusions of law time, however, Rather, Justice Hall an At the same court based its dismissal. among analytical disagreement court, noted an we review the decision appellate Cook, justices concurring in the the Condemarin for correctness. Smith v. dismiss (Utah 1990); requires us to examine other opinion, which Termunde 803 P.2d 790 applying part imposes suggested previous this two test in a 9. While Zimmerman 8. Justice constitutionality opinion Utah Code analysis the of than either the more structure on our challenged might ana- clauses, be and Ann. 78-12-31.1 part § process due the two federal or state open provision. lyzed See under the courts analy- process with due test is not inconsistent 1990) (Utah Smith (Zimmerman, constitutional, process, sis. Under due "[t]o J., joined by concurring, Justice of limitations must allow a reasonable a statute stated, Stewart). "I do not Justice Zimmerman filing the of an action after a cause of time for validly impose legislature a three- the can think month limitation Berry, 717 P.2d at 672. The action arises." period ac- on habeas simply identifies the crite- section 11 framework Const, 5, 11; I, (citing §§ art. tions." Id. the reasonable- which we should evaluate ria University Hosp., Condemarin v. right civil of a limitation on the to seek ness J., (Zimmerman, (Utah 1989) concurring remedy in state court. Berry Berry part); ex rel. 670, v. Beech Aircraft 1985)). Corp., 717 P.2d address, rationality and the appropriate level evaluated determine the factors statutory effectiveness means the particu- scrutiny by to review this which legislature prob- deal selected to with these statute.10 lar Thus, implicitly explicitly, either lems. in section to discussion We looked supreme has de- court considered the supreme court precedent and to other impairment prior gree implementing fac supplemental to determine what cases analysis section and has conducted a reviewing leg impact standard tors particularistic evaluation on that basis. criteria enactments. two islative assessing significance “degree In (1) degree to find are we relevant which reviewing impairment” in a statute impairs a an individual’s which limitations, we note that cases criti- which (2) remedy, to seek the nature right of repose simultaneously statutes dis- cize impaired. tinguish statutes from statutes of repose begins statute of limitations. “[A] Impairment Degree A. from a unrelated to run date the date designed it is a Condemarin, injury, to allow Justice Durham stated an time action reasonable of an greater the intrusion that “[t]he interest, Berry, it arises.” at 672. once constitutionally protected contrast, By statute of limitations rea explicit and more state’s greater run the time that a cause of begins to from enacting must be” sons accrues or after violation of action University statute. Condemarin 1090; Horton, right. 785 P.2d at legal See Af Hosp., 672; Berry, 717 P.2d at Utah Code reviewing supreme opinions ter Thus, nature, by their 78-12-1 evaluating repose, conclude statutes of present do not of limitations statutes “degree impairment” factored into impairment comparable to that degree of those level of review conducted in repose. by statutes of For created Those criticized cases. courts statutes reason, factoring degree impairment (1) designed to they are not repose because of limita- into section review of statutes file time provide reasonable inquiry requires explicit threshold tions action, statutory time the statute on into the actual effect of might expire prior file in which to an action right by impacted the statute. time the cause of action ac to the when Daugh crues. See Horton Goldminer’s making inquiry, compared 1087, (Utah 1989); ter, 785 P.2d 1095 Sun 78- period in three month limitation section Son, Hughes 782 Valley Water Beds v. & im- 12-31.1 to the time limitations 1989); 188, (Utah Berry 189 ex rel. comparable P.2d by statutes limitations posed Corp., 717 Berry v. Beech by in other states and other statutes Aircraft (Utah brief, 670, indi Their criticism 672 in In his limitations the Utah Code. notes, implicit conclusion that statutes not dis- cates and the State does Currier pe- significant impairment repose pute, constitute a that Utah’s three-month limitation remedy right court. right seek state riod for the for a writ shortest, court then discussed in detail is the nation’s Each compared We legislature that the intended with other states.11 problems impact by prece that other factors this court is bound 10. Our decision 11. comports states, of review with a statement standard in the dis dent from other we have noted synony- Berry that 11 review not section crepancy length statutory periods that process due review to mous with federal in different states have enacted and in some Berry proposes we which the State adhere. only upheld. one stances We have discovered court, affirming prerogative of the after stat other with a three-month limitation changing legislature adapt circum- the law ute, 1989) (en State, (Mo. Day v. 770 S.W.2d 692 constitutionality presumption stances and nom., banc), Mis Walker v. cert. denied sub. enactments, legislative clearly refuted souri, 866, 186, U.S. 107 L.Ed.2d 493 110 S.Ct. analysis proper idea "that (1989), 120-day limitation. 141 with a one principles made on section can be those State, Berry, 717 P.2d at 678. Or. 839 P.2d alone.” Bartz that, comparison to other limi- ized also note as economic interests.” In re state, periods Ct., in effect within this Investigation, tation Criminal 7th Dist. (Utah 1988) statute of limitations creates the short- P.2d (citing Allen v. Trueman, by 36, 57, period specifically est mandated 100 Utah (1941) (Wolfe, chapter J., concurring)). the Limitations of Action “very legal sig Utah Code. Utah Code Ann. 78-12- courts attribute See different §§ 1 to -48.12 nificance” to individual historically liberties considered as indispensable “the conditions Regardless of the reasons for selec- society” of a free than to “liberties which filing period,13 tion of the abbreviated these merely shifting derived from economic ar comparisons indicate that section 78-12- rangements.” Allen, 110 relatively 31.1 creates a severe limitation They presume refuse “to the constitutional right on an individual’s for habe- ity of a statute deprives when the statute impairment relief. This level of right by one of a established ... the state carefully indicates that we should scruti- constitution,” for the reason that consti- purpose nize the and effectiveness of the greater weight tutional carries than petitioners challenge. statute that Howev- interest, “a nonconstitutional such as a er, recognize because we that even this general social or economic interest.” po- abbreviated limitation lacks the University Hosp., Condemarin v. severity tential and inherent unreasonable- 1989) (Stewart, J., concur- repose, ness created statutes of we look court, ring). supreme Even the “while finally to our criteria second before decid- adopting perfunctory standard of review ing proper on the level of review for the process under the federal due clause for challenged statute of limitations regulation general, economic ... ex- petitioners. plained legislation impairing rights Right Impaired specifically protected by B. Nature the federal consti- require tution would more careful review.” supreme Previous cases from the Condemarin, (Zimmerman, 775 P.2d at 368 indicate that the nature of the individual J., concurring) (discussing United States v. right impacted by a statute influences the Co., Carolene Products 304 U.S. scrutiny level of which a court should em- n. 58 S.Ct. 783 n. 82 L.Ed. 1234 ploy in examining legislation. Gener- (1938)). ally, “a scrutiny court will exercise stricter evaluating measures that encroach In the cases opinion, consolidated in this civil respect petitioners liberties than it will with impair- claim unconstitutional impact statutes that what can be character- rights having ment of individual character- spectrum, During argument At the other end of panel questioned several states oral year periods. justification have enacted five limitations compar- the State about the for this State, 885, Housley atively v. 119 period, Idaho 811 P.2d 495 considering short limitations that 455, (Ct.App.1991); Perry, limitations, State v. general 232 Mont. purpose 758 of statutes of (1988); State, P.2d 268 Albert v. 466 P.2d including 826 extending up eight years, those is to (Wyo.1970). jurisdictions Other fall in between compel right the exercise of a within a reason- State, these extremes. Perkins v. (Miss. claims, 487 So.2d 791 able time to avoid stale loss of evidence (three 1986) year period); limitation and faded memories. Horton v. Goldminer’s State, (Iowa 1989) Davis v. 443 N.W.2d 707 1087, Daughter, (Utah 1989). 785 P.2d 1091 The (three year period). limitation responded State period ap- that the three-month propriately proceedings, fits the nature of the considering peti- that claims raised in habeas range periods 12. The of limitation described in readily peti- tions are ascertainable and that a other statutes of limitations extends from seven actions, years tioner is assumed property to know his for real or her claims. Code Ann. counsel, 78-12-5, hand, eight years McClellan’s and on the other re- § for actions decree, 78-12-22, judgment sponded that the or id. abbreviated § to six statute of limita- against legislative against tions reflected months for actions an officer in his bias the ha- capacity, corpus petition particu- public outcry her official lar, beas §id. 78-12-31. In based on against high imprison- profile even an action filings for the tort of false cases in which serial only year. ment needs to be long delays filed within one Id. of habeas created 78-12-29(4). capital punishments. § in the execution of

1365 obligated heightened fundamentally ernment was “to suggest generally that istics Utah, provide wrongs reasonable remedies scrutiny. persons.” is done pro Berry Berry court ex rel. v. corpus relief state [to] Corp., 5 of I, the Beech 679 through tected Article Section Aircraft (Utah 1985) provision, (discussing Iseming- v. This Wilson Utah Constitution. I, er, 9 of essentially Article Section 46 L.Ed. 804 parallels U.S. S.Ct. “ Constitution, provides: (1902)). attempt Any existing the United States to ‘bar privilege rights affording “The of the writ of claimants without unless, in suspended, case of opportunity try not rights shall be in the ... [to courts] invasion, re public safety limitations, rebellion or would not be a statute of but pro quires express it.” constitutional attempt extinguish rights an unlawful the writ of habeas tection accorded arbitrarily, might purport whatever be the ” recognition significant evolved out of provisions.’ (quoting Id. at 679-80 played history in the 575); role that the writ Wilson, at 185 U.S. S.Ct. at see law. Actions, Hurst also 51 Am.Jur.2d Limitations of to “pro Its is function at 613 § attacking collaterally con vide means for limitations, like Statutes of statutes of they constitutionally are so victions however, repose, do not create total un they flawed result in fundamental abrogation of all remedies forbidden provide fairness and to for collateral attack Berry decision. Because these statutes by law.” at of sentences not authorized Id. only specified bar a cause of action “after Supreme Court has 1034-35. The Utah elapsed,” of time has evaluation of safeguard precious “the deemed the writ constitutionality of these statutes must personal liberty” and defined habeas cor legislative purpose re consider the out of assuring pus procedure as “a that one legislature’s prerogative “to spect for the liberty deroga deprived of life or cope widespread or economic with social right.” tion of a Id. 717 P.2d at 680. Because Berry, evils.” Having the statute at determined that accommodation, of this “section does not significant im issue this case creates a enactment, every legislative recede before important constitutionally pairment of an in a may applied but it be mechani neither personal right, the chal based we conclude every cal to strike statute with fashion lenges Code Ann. of Utah Instead, may Id. which there be conflict.” scrutiny than require higher minimal reviewing court declare a stat will more than a deferential review demand “arbitrary, un ute if it is unconstitutional rep that the statute does not determination reasonable, will not achieve the statu resent a of extreme arbitrariness.” “case[ ] tory reviewing Id. If a objective.” at 681. (Stewart, J., Condemarin, at 369 closely an enactment under examines separate opinion). We believe 11, it will that act if it section invalidate conclusion is consistent with discussion disability rights imposes a “on individual open provision Berry noting that the courts great justified by too which is constitution, analogue no the federal has accomplished.” benefits Condemarin Berry, declaring P.2d at Hosp., University greater “free provide state constitution reviewing a statute that ab When our citizens than are re protections for remedy rogates a or cause of action with the federal constitution." Id. quired under providing out an “effective and reasonable at 677. remedy ‘by due course of alternative ” law,’ requires “balancing 11 section Scrutiny Application Heightened IV. analysis.” See Horton v. Goldminer’s Analysis 11 in Section (Utah 1989); Daughter, 785 P.2d Condemarin, 358; conducting analysis Berry, the of a P.2d at In statute provision, justified P.2d at The statute must be open Berry courts 680. under the by clear began proposition gov- elimination economic court with through Comm’n, and non- social evil a reasonable Industrial 116 Utah (1949), the construction of a arbitrary Berry, means. 717 P.2d at 680.14 requires haste, statute “which such undue fraught which potential with such hard- Legislation’s Purpose A. The and Effect ships keeping is not in spirit with the of a examining legitimacy of the limitations, purpose statute of of which legislature’s purpose enacting put is to Utah Code at rest stale claims.” As a later (1992), explained in discussing note that statutes of we repose, open provision courts gen Utah courts have validated the State’s “make[s] periods repose only certain that be al- placing eral interest in a reasonable time lowed possibility injury when the brought. limit on can be action damage highly has become remote and un- Daughter, Horton v. Goldminer’s expected. that, injured persons Short of However, (Utah 1989). remedy.” Horton, are to be allowed their closely reviewing particular un problems 785 P.2d at 1095.15 Because open provision requires der the courts us to delay, excessive fading with memories and specifically legitimacy assess “the unjustified acquittals may years, take legislative purpose extent to which months, merely develop, three we do not purpose reasonably said was and substan explanation legislative find the State’s tially advanced the means utilized.” objectives adequate. Hosp., v. University Condemarin question This review We next whether this includes inflexible legislature’s three-month statute of limitations substan- both examination of the tially any objective advances other ex- period selection of a three-month limitation pressed by legislature. explain To inquiry degree and' into the which State, legislative purpose, appen- period reasonably time and sub brief, dix to its submitted certified tran- stantially legislature’s advances the stated scripts 1979 senate and house de- objectives. during legislators which bates introduced The State contends that this three-month legislature. limitations bills to the state limitation on the for a Barlow, transcript, In the senate Senator habeas writ is reasonable because the short referring highly publicized Hi-fi mur- keeps time evidence fresh and County ders and the motorcycle Carbon available, (2) promotes finality records case, the senate purpose described bill’s as helps vitally impor- the state and is eliminating a defense counsel’s technical witnesses, (3) tant to victims and conserves using device of “a series of habeas resources, (4) prevents delay state unfair delay actions ... carrying eventual hope memory of faded or unavailable wit- out of the sentence of the court.” The nesses, (5) curtails belated suits with re- prevent statute of limitations would exorbi- costs, sulting delay, increased burdens and tantly expensive delays in the execution (6) prevents unjustified acquittal in in- a sentence caused “throwing” out re-prose- stances where the State cannot grievances known one at a time over sever- Although acknowledge cute the case. we years. transcript al The house also in- legitimacy purposes of these for stat- cludes discussion focused on the use of general, question utes of limitations in in notorious murder cases particular purposes justify whether these improperly delay jus- execution of period. three-month limitation As the Representative Sykes tice. condemned this court noted mockery justice State Insurance Fund v. “charade and ... Zimmerman, According to Justice review un- the Horton case discussed a statute limitations, repose opposed der section 11 shifts the burden to the to a statute of justification show sufficient impacted by limitation we note that the individual interest right through repose on the to seek redress state courts. that statute of was an economic interest Horton, J., (Zimmerman, compared highly See 785 P.2d at 1096 as protected to the more liber- Condemarin, (Zim- concurring); ty impacted by 775 P.2d at 368 interest the statute at issue in merman, J., concurring). this case. filing petitions the re- appeals preventing serial minute based bringing these last background quires an awareness of certain grounds.” upon frivolous can ha- information. Inmates legis- indicate that the transcripts These corpus relief in the beas both the state and deterrence serial goal was the lature’s systems.16 In pre- federal court order to pre- in order to filing petitions of habeas writ, system vent abuse each court sen- delay the execution of undue vent developed separate procedures to limit has ap- legislation Proponents of the tences. availability the relief. Al- habeas delays and the excessive peared to consider though the federal rule was also “intended petitioners generated by perennial costs minimize abuse of the of habeas to writ capital punishment improperly delaying limiting corpus by the to assert stale or evil.” “a clear social economic to be multiple petitions,” it claims and to file However, the cases before this not a does bar of limitations that this statute demonstrate the state its burden of relief until satisfies impacts corpus actions adversely unfairly has demonstrating that it been the the problems unrelated to described by delay. 28 U.S.C.A. prejudiced § cases, petitioners the legislature. advisory at 1137 committee note Rule attempting to inmates are not death row 1977). recog- (West Federal courts do sentence, rath- delay execution of their but presumption prej- nize even a rebuttable prisoners currently serving their sen- er delayed petitioner has more udice until expe- highly to tences who are motivated judgment con- years five after the than proceedings might which vindicate dite de- Id. To accommodate a state’s viction. wrongful allegedly incarceration. finality dealing with and for claims sire Bar- This underscores Senator distinction fresh, sys- the federal they are still while indicating tar- low’s statement bill doctrine of lach- equitable tem relied on attorneys delay the execu- geted trying party’s focuses on whether one es which sentence, not inmates tion their client’s disadvantaged delay party, the other rather serving challenging some as- sentences (discuss- a statute of limitations. Id. than pect their incarceration. (1992)). Equity p. 19 ing 30A C.J.S. § incorporated Flexibility was into also Thus, appears the three-month limitation permissive language stat- through rule problematic re- to have caused the classic ” “ petition may ‘a be dismissed.’ ing that legislation against sult “crisis” 2254 Rule (quoting 28 U.S.C. Id. at 1137 § Justice Durham warned Condemarin. provides the federal 9). language This efforts resolve “crisis” She described “ equities of court discretion to balance ‘a truly marvelous mechanism for situation, encourages peti- suspension of established withdrawal ” diligence tioner act with reasonable Condemarin, rights.’ 775 P.2d at 362 necessary safeguards hard- guarantees omitted). (citations Considering that (noting sug- ship cases. Id. empirical or factual presented State no Relating to ABA Standards gestion of prior enacting this effect that data 2.4, commen- Remedies Post-Conviction § statute, non-death row inmates’ 1968)). Draft, tary. (Approved at 48 problem, much less a “clear social created evil,” overly stat- impact of this broad state and federal The distinction between disturbing. is particularly ute corpus actions be- limitations on habeas when, significant Utah courts assessing effectiveness came

Adequately incorporated Post-Conviction period in the Uniform rigid three-month limitation petition by ability respond to the § 16. See Utah R.Civ.P. 65B and 28 U.S.C.A. (West counterpart delay petitioner The federal shows in its unless 78-12-31.1, found in U.S.C.A. § Code Ann. grounds which he could that it is based on (West 1977) provides: 2254 Rule 9 knowledge by the exercise of not have had (a) Delayed petitions. petition may A dis- diligence reasonable before the circumstances appears if it that the state which missed respondent prejudicial to the state occurred. prejudiced been an officer has added.)17 (Emphasis provi- Act into Rule See Hurst v. Procedure 65B. Cook, 777 P.2d sions of the Rules of do not CivilProcedure objective of act the uniform was set a time limitation for a submitting habe- proceedings for habeas cor- liberalize state petition, corpus they directly address “ in them ‘flexi- pus petitions order to make problem delay by insuring expressly enough sympathetic so that with consid- ble undeserving petitions serial not be need pre- pleadings and methods of eration considered the state courts.18 issues, senting prisoner always be a will court and able raise his claim in a state B. Reasonableness of the thus, ... there will occasion for be no Statute of Limitations corpus, habeas a state rem- federal because ” Annota- edy (quoting is available.’ Id. both of In the cases before tion, Procedure Post-Conviction Uniform court, petitioners contend that Code Act, (1974)). 11 U.L.A. is unconstitution by super- objective, In conflict with this it al creates an time because unreasonable imposing substantially a state limitation on their constraint rigid counterpart, than its federal more relief. Currier claims that legislature petitioners peti- forces to file Utah’s three-month statute of is limitations in federal practical tions court. This reali- unreasonably short and lacks provision purpose ty legislative contravenes delayed filing excuse could because deterring repug- is numerous beyond petitioner’s of circumstances judicial expressed to the purpose nant McClellan, too, control. claims that If, contrary to intent of the Hurst. time limitation the statute is unreason act, petitioners uniform must raise their unduly ably places short because it pro- criminal claims deficient state court petitioner harsh burden on an incarcerated venue, ceedings in our a federal state petitioner ambigu a and because faces an opportunity courts will not have the initial ity problem determining when the statu to address those claims make needed tory period commences. corrections. by peti response In to the claims made Furthermore, purpose if legislative tioners, the State concedes that be “[t]o delay prevent sequential due to constitutional, a statute of must limitations actions, rigid three-month limita- filing allow a reasonable time for the of an may not necessary. tion be The substan- action after cause of action Ber arises.” provisions tive in Rule the Utah 65B of Corp., ry Berry ex rel. v. Beech already of Civil Rules Procedure forbid se- Aircraft (Utah 1985) (citations 717 P.2d petitions. rial state habeas However, omitted). 65B(b)(3) emphasizes State version The current of Rule re- not, per that a statute limitations does quires that “The set forth shall all I, se, Article petitioner that the offend Section because claims has in relation to legitimate legality placing State has a interest in the commitment. Additional relating legality to the of the reasonable time limit on when an can claims com- action may subsequent brought. mitment not be Horton raised v. Goldminer’s proceedings except good Daughter, shown.” cause requirement submitting flexibility all claims in is to This limitations remove discre- petition was one also included in version of judicial procedure, thereby state tion from di- legislature in effect at the time the enacted 65B minishing guarantee ability the court’s fair- the statute of limitations in 1979. equity ness and cases. Because "[q]uintessentially, judi- belongs the Writ contrast with and the both the former government," especial- cial branch of we find it provisions controlling post- current in Rule 65B ly problematic legislature that the circum- relief, conviction the statute of limitations en judi- important all scribed “one most legislature provi acted sion does not include protection cial for the liber- tools of individual excusing delay grounds good on the ty.” Id. at 1033-34. See Hurst v. cause. (Utah 1989). Thus, the effect the statute of preventing also relatively The State claims that the argues the that The State “long challenge cre- to conviction after its in this short limitation unreasonableness, avoids what is effect an presumption ates occurrence” no depends acquittal on unjustified the State but rather that reasonableness cannot action, the the nature the re-prosecute three factors: the case because witnesses the interests government and interests and evidence have become unavailable. State, 443 litigant. See Davis v. Third, litigant’s petitioning the interest 1989). (Iowa findWe N.W.2d 710-11 relief includes mini- both Justice suggestion with consistent any mizing by the created limitation burden legislature, comment the Durham’s that maximizing period and the benefits that instance, secondly, appellate the first to exercising right the can confer weight of the must “balance the courts litigant. an incarcerated In both of against the governmental at stake interest court, the the State’s briefs for this State countervailing importance the individual that time limitation does not asserted the being compromised.” rights Condemarin petitioner. The create a burden on a State Hosp., 775 P.2d v. University (1) to the claim giving claims the acts rise therefore, (Utah 1989). We, analyze these readily corpus relief are ascer- for habeas appeal of this three factors context tainable, (2) tolling provides provision to determine the and then balance them relatively period, relief short time from statute’s reasonableness. free, having com- inmates access First, opinion, in this as discussed earlier legal experience delay no petent assistance is considered so writ attorney identify- obtaining promptly or I, important in Utah that Article Section potential ing habeas claims. prohib- expressly of the Utah Constitution public safety its re- its restriction unless challenging the State’s contention that quires it. 777 P.2d Hurst period is not an three-month limitation The writ is an extraordi- burden, described difficul- undue Currier nary remedy, require- “where the invocable meet facing- prisoners required to ties disregarded ments of law have been so that specifical- He filing deadline. three-month substantially effectively party is questioned State’s assertion that ly law, or some process denied due where particularly are “in a enviable prisoners such that it be uncon- fact shown would receiving legal assistance.” position as scionable not to re-examine the conviction.” operating Noting prison attorneys un- that Turner, Brown v. 21 Utah 2d inmates in contracts to assist der limited pleadings constitute preparing their initial assistance, legal access to an inmate’s Second, the State notes that the core delay inher- explained potential he is to purpose statute of limitations either that an inmate possibility ent in the compel exercise of a within reason- opportunity to meet with the might miss claims, avoid loss of able time to stale or the contract attor- attorney contract that Horton, and faded memories. evidence promptly. ney might fail to move forward The State claims that constraints cre- He also described time purpose, the three-month addition by inmates’ burden obtain their ated necessary pro- statute of limitations is prepare order state resources own documentation finality, mote to conserve corpus.19 litigation expenses. petition for writ of habeas and to avoid further arguments, presented empirical or never addressed these substantive no factual State presented these assertions that the three- accept data to counter the unrefuted statements time creates an unreasonable Price, month constraint Currier. See State v. did State contest burden inmates. Nor (Utah App.1992) (party’s to devel- failure credibility argue Currier’s that difficulties appellate op position in an brief means this by Currier considered in- described should be position); court will consider prove time the three-month sufficient R.App.P. 24. State constraint is unreasonable. Because the arguments Their acknowledging In addition to unre- reflect a statement Court, declaring, impor time lim- Utah futed burden which a three-month “As is, finality tant petitioner, higher itation for a we must as it does not have a creates petitioner guarantees also that a value than constitutional consider benefits of lib having erty.” can a court review the receive from Hurst v.

propriety (Utah 1989). The of his or her incarceration. legitimizing Even while impor- writ is “one of the most general concept limitation, considered of time the Hor judicial protection tant of stated, all tools for ton court rights “The notion that of liberty,” of individual as it “has become a action should be terminated because of the procedure assuring that one is not de- difficulty proof accompanies which derogation prived liberty of life or of a passage of justification” time is not a valid Cook, 777 right.” Hurst v. prematurely a statute which cuts off a plaintiffs right of action. Horton v. Gold Daughter,

miner’s (Utah 1989). That court noted that “[a]l- Balancing C. the Reasonableness Factors though passage of time increases the Balancing these three reasonableness difficulty evidence, providing reliable (1) requires weigh factors us the coun- proof heavily difficulties of fall much more tervailing interests of the State and of a plaintiffs, who have the burden of petitioner to consider these inter- establishing prima facie case ... to sur ests relative to the nature of the writ of vive summary judgment a motion for corpus. Specifically, habeas we must con- directed verdict.” Id. impacted sider how all three by factors are brevity by weighing litigants of the limitation In the interests of action, lack any provision on either side of a excusable de- we lay. petitioner trying note that to ascertain rights his or her and to file all reasonably long recognized Utah courts have that a petition20 known claims in the initial must grant decision on whether a court should complex legal make these decisions with corpus petition represents a balance law, knowledge limited of the limited ac- between rights “the observance legal cess to assistance and often no access protect individual order to the inno- library. to a law Murphy As Justice of the cent, ... the necessity protecting [and] said, Supreme United States Court rights public of the kept to be safe from crime Prisoners are often unlearned in the encouraging law effective law en- Turner, complicated unfamiliar with the forcement.” Brown v. pleading. they rules of implement Since act so of- To balance, ten their own counsel in habeas cor- inquiry the writ “direct[s] pus proceedings, impose question: we cannot foundational Was substan- justice high them the same standards guilt tial done and has been estab- legal might art place lished?” which we on the Id. at 969-70. legal profession. members of the Because of this concern with substantial justice, petitioners argue Johnston, 266, 292, that the to Price v. 334 U.S. 1049, 1063, for the (1948). writ of habeas out- S.Ct. 92 L.Ed. 1356 weighs any rigid Furthermore, state interest in a three- the decisions made month purpose limitation for the pre- petitioners impact personal liberty in- serving finality, efficiency. convenience and terests.21 When such an interest is at penalty 20. reasonably for failure liberty to file all tours of this historic interest ... have complaints they may known ered waived. See is that be consid precisely, they always not been defined have Hurst, 777 P.2d at 1037. thought encompass been freedom from bodi- ly punishment_It restraint and is fundamen- Ingraham Wright, In 430 U.S. 97 S.Ct. physically tal that the state cannot hold and (1977), decision, quoted Berry a case punish except an individual in accordance with that, Supreme Court stated "While the con- questioned has stake, strong interest Petitioner Currier the le- an individual has “a gitimacy of limitations bar- safeguards that minimize procedural ring for habeas provide wrongful punishment and risk of tardy does not excuse the of a writ disputed questions for the resolution good cause shown.22 While no Wright, justification.” Ingraham previously decision has addressed this U.S. 97 S.Ct. claim, the Utah Court the interests did discuss the need to comparing excuse unavoidable addition delay interpreted when it Utah Rule of also litigation, parties the two 65B(i)(4) requiring Civil Procedure all is to effect this statute note that the of post-conviction claims for to be relief raised right to a of habeas curtail the writ good petition “except in an initial for cause to “a consti- that this has declared be Hurst, shown therein.” 777 at See P.2d in law.” Hurst tutional fixture American context, 1037.23 In this the court decided 1029, P.2d 1033 v. 777 “good a justifying cause” the of legal the defense superimposes The statute petition successive included situations in- equitable on an of a statute of limitations volving good “a in claim overlooked faith doctrine, of right petition to a writ delay with no intent to or the writ.” abuse Noia, 391, 372 corpus. Fay v. U.S. interpretation We this of the rules Id. find 822, (1963). 848, L.Ed.2d 83 9 837 S.Ct. procedure civil of inconsistent with Because of limitations is Utah’s statute statutory original petition de- bar of defense, legal equitable rather than an see Therefore, layed for the same reasons.24 (1992), 78-12-1 Utah Code Ann. State of having considered the interests the State may regardless interpose legal this defense petitioners in light and the of the nature of equities particular of the of the situation. right impacted this statute of limita- Passey Budge, 85 v. tions, we conclude that the inflexible three- 716-17 lack of flexi- inherent right on the month limitation bility in limitations a statute of combined of a writ unreasonable. any provision with lack of excusable summary, although recognize In we delay conclusion that the contributes our between statutes of relevant distinction nature of the'habeas action received repose, do limitations and statutes we legisla- from the insufficient consideration im- not that this distinction should believe selecting ture when three- inflexible from section munize statutes limitations hand, period. analysis. the other while the month limitation 11 On mandates,” 673-74, process at we are constrained to due of law." Id. at 97 S.Ct. constitutional interpret language actually (citation omitted). used "'the power court has to rewrite a statute to make no ” expressed.' not In it conform to intention 22. He cases states which the cites from other in Ct., Investigation, Dist. P.2d re Criminal 633, 7th 754 right demonstrating present facts excusable omitted). (Utah 1988) (citation These delay or in is included a statute evident ability guidelines may limit this court’s to modi- State, appellate v. review. See Davis fy rigid or soften the harsh effects of (Iowa 1989); Di N.W.2d Passainisi v. judi- statutory period through limitations short rector, Prisons, Dept. 105 Nev. Nevada gloss declaring the statute uncon- cial in lieu State, (1989); Albert stitutional. (Wyo.1970). petitioner has these states right opportunity to raise the issue of attempted Currier’s ar- 24.The State to counter comply the failure with the statute whether gument delay due to circum- uncontrollable petitioner’s due own ne limitations was toll the statute of limitations stances should claiming beyond glect her or due to circumstances his or Ann. § that Utah Code contrast, By People Germany, control. provision incorporates de- for excusable (Colo. 1983), the state's statute of petitioner lay by barring only which a actions pro due limitations was determined violate "through aware of the exer- should have been provide a cess because it failed to defendant However, diligence.” cise of reasonable we find opportunity justifiable to show excuse. response unrelated to Currier’s claim that claim, petitioner even after a is aware Utah courts "will construe statutes three-months is an insufficient time which to legislative prepare to ‘effectuate the intent’ while avoid- file a habeas under the ing interpretations must that conflict with relevant circumstances in which inmates work. “degree impairment” subjects criteria district courts for consideration of respective repose particularistic evalua- substantive claims. statutes automatically, may that criteria tion almost review of less impact appellate

have no on GARFF, J., concurs. Further- invasive statutes of limitations. ORME, result): Judge (concurring in the more, focusing on "the second factor impaired” only po- has nature agree I my colleagues with dis- that the modify tential to the review of limitations missal both issue important, constitutionally if based appeals must reversed and the cases Thus, personal rights. suspect that the remanded for consideration on the merits. analysis rarely trigger opinion will unnecessary, however, I find it to address heightened statutes of limita- scrutiny of constitutionality applicable stat- tions, legislative prerogative preserving the statutory ute of I limitation. As view the in most instances. scheme, question and in accrued, Despite petitioners’ holding the focus of our causes of action narrow case, petitions legitimate govern- brought no in we find were well within person period prescribed in the keeping pris- by mental interest in a limitation the stat- case, ute. may actually being have done Such the not nothing on who need by constitutionality more than miss deadline created decide the of the the statute Utah Code Ann. Fur- limitation. 78-12-31.1 § thermore, petitioners’ the having balanced corpus relief,

interest in habeas and the Interpretation A. Alternative limiting in filing period State’s interest The within which a light writ, of the nature we find corpus writ of habeas must be filed is filing period that the inflexible three-month governed by statutory provi- two related created this statute limitations is first, applicable sions.1 The statutes unreasonable. We therefore declare Utah generally, provides limitation as follows: Ann. Code 78-12-31.1 unconstitutional. § may only Civil actions be commenced periods prescribed within the in this CONCLUSION chapter, the cause action has after Because Utah Code 78-12-31.1 accrued, specific § except cases where significant impairment creates a prescribed by different is stat- limitation the constitutionally protected right of an ute. corpus individual to for habeas re- (1992) (emphasis Utah Code Ann. 78-12-1 § lief, constitutionality we evaluate added). specific period appli- The limitation heightened scrutiny statute under a stan- cable proceedings to habeas is as Having thereby

dard. concluded that the follows: any legitimate statute does not achieve Within three months: means, statutory objective by a reasonable petitioner pursuant we find that this statute denies a For relief to a writ of habeas remedy corpus. civil due apply course This limitation shall grounds of law and is unconstitutional under Article as to known petitioner I, Section 11 grounds of the Utah Constitution. We but also to which in the exercise diligence therefore remand these cases both to the reasonable should have been relief, (Utah 1989), extraordinary In Hurst v. dures for which include hough Utah noted Court that It "[a] post-conviction those for relief. The re- most post-conviction remedy relief and the writ of explicitly cent version of Rule 65B eliminated thought have sometimes been concept of the "writ" from this That rule. separate procedures, the writ of habeas cor replaced contextually term has been with other has, pus years, post-con over the absorbed the 65B(a) appropriate terms. See Utah R.Civ.P. remedy single viction relief to form a constitu (amended 1991) advisory committee remedy.” tional Id. at 1033. Rule 65B of the note. governs proce- Rules of Civil Procedure contends, peti- biguous, as McClellan because by petitioner or counsel known provides guidance no statute as to tioner. statutory period when the three-month be- Id. 78-12-31.1. gins, i.e., as when habeas cause argues that section State action, as term is used section cor- required petitioners to file their habeas 78-12-1, accrues.2 section 78- partic- petitions months of pus within three applies “grounds 12-31.1 to peti- known of recantation ular affidavit events—the tioner” as well to grounds case; of the motion for Currier’s denial petitioner,” “should have known by been pe- Because new in McClellan’s case. trial specific no section makes reference petitions more than titioners filed their when the cause of action accrues. Even occurrences, the three after these months assuming “grounds” underly- refers to the claims were barred State asserts ing decision other action which resulted limitation. by the statute of three-month allegedly unlawful confinement rath- plau- interpretation is a While the State’s being unlawfully er to the than condition one, interpretation alternative sible confined, general rule that “a cause possible. also statutory scheme is Un- happening of action accrues view, der the alternative necessary complete event last timely corpus were filed writs of habeas cause of action.” Becton Dickinson & Co. illegal ongoing is an imprisonment because (Utah 1983) Reese, rights, violation of from added). Thus, (emphasis does which follows that a new cause of action it not when a habeas itself resolve day illegal of confine- accrues with each accrues,3 although it cause of action seems interpreta- ment. Under this alternative unlikely that unlawful action which does tion, recognizes gravamen of a not in or other re- culminate confinement illegal habeas action to be confine- liberty straint is actionable in a of ment rather than the occurrence corpus proceeding, suggesting that it is illegal, which makes confinement these or unlawful confinement restraint that is timely they were were because necessary complete event “last petitioners allegedly filed while were cause of action.” unlawfully, confined and thus well within three months of confinement. such ignore plain we will not mean While statute, ing directs of a Utah law us Ambiguity

B. with a view “liberally construe[ ] [statutes] of statutes and to ambiguous objects “A if it can to effect statute is be promote Ann. 68-3- by reasonably justice.” Utah Code understood well-informed § Willden, City Corp. 2 persons meanings.” See Provo to have different Tan- 455, (Utah 1989). Moreover, Co., 231, 768 799 P.2d 233 458 ner Phoenix Ins. (Utah regard is with to the three-month limitation 78-12-31.1 am- App.1990). Section See, e.g., ambiguous. Legislature specify Davidson Lumber the time itself is Sales, If the wanted commences, Inc., easily Inv., statutory it could Inc. v. Bonneville See, e.g., 1990) have done so. Code 35-2- (Utah (indemnity does arise action not (cause occupational for of action dis- occurs, damage underlying when but from time disability compensation when ease ployee arose "em- payment judgment payment of of claim or of incapacity occupa- suffered from the first settlement); Chilton, Lipscomb v. or should have known tional disease” knew (statute (Utah 1990) 380-81 of limitation (re- employment) was caused condition began warranty action to run when breach 1991). pealed See also Ill.Rev.Stat. ch. demand, purchasers’ respond to did not sellers (petition post-conviction challenges § demand, buyers not made nor when roof rights based denial must be discovered); Family Holy first Catho- leaks were years "rendition of commenced within Assoc., Congregation v. lic Stubenrauch judgment”). final (App.1987) 402 N.W.2d Wis.2d (when ambiguous, is court will accrues, time accrual Determining when a cause of action limitation, beyond of statute trigger look words to determine when so as is made statute period began). in limitation more difficult situations where beyond filing corpus petitions, the Utah reasons their control.5 The short “any period, has directed that am- if interpreted Court limitation as the State

biguity may exist ... should be re- argues, provide little room would for error defendant.” solved in favor of a criminal by inexperienced prisoners good who in Smith v. attempt faith challenge illegality their confinement on valid constitutional Indeed, grounds. present the instant cases History Legislative C. petitioner circumstances each where claims he attempted legal to seek assistance legislative history 78-12- The of section timely manner, but faced a number ob- provides insight 81.1 into the intent behind stacles that completion made earlier period. As not- his three-month limitation petition difficult, impossible. if opinion, debates in the Section ed the main 78-12-31.1, State, interpreted by the sin- as Utah House and Senate exhibited gle-minded by legislators regardless would bar intention con- these claims for relief appeals repeated, occurring delay filing. trol frivolous of the reason for the While capital spoke during Legislature who explicitly disap- cases. Those did not expressed result, intention prove the debate never of such a “the draconian sanc- preclude prisoners with meritorious habeas barring tion of a cause action should not asserting claims from those claims imposed legislative without clear intent in the courts of this state.4 reason consequences.” of such Gramlich v. Mun- legislators seems clear. The were focused sey, 838 P.2d post- death row inmates anxious to D. pone Avoiding Unjust with the rendezvous executioner. Results It such inmates who stand to In addition to other methods for resolv- delaying a habe- benefit from ing ambiguity statutory scheme, corpus petition. While further confine- ought plausible to “look to the effect each compares favorably execution, ment with meaning statutory language will have non-capital prisoners have no incentive to practical application.” Tanner v. Phoenix put corpus filings, off habeas which would Co., (Utah 799 P.2d App.1990). Ins. only prolong they the confinement believe We must therefore sensitive to be the unac- is unlawful when the alternative is free- ceptable consequences arising out of the dom rather than execution. interpretation State’s statutory the so,

In doing its understandable effort to eliminate merely scheme. heed the brought Legislature’s interpret frivolous claims at the eleventh directive to statutes felons, by capital Legislature ap- “promote justice,” hour the to Code parently (1986), explicitly failed to consider non- 68-3-2 Supreme and the Utah cases, capital including those in which any ambiguity con- Court’s directive to resolve bring fail an victs immediate action for in section favor of the crimi- Increasingly, Limiting prisoners federal courts have become over- decided." Id. at 59. 4. state disproportionate burdened with a number of unreasonably short for a habeas corpus petitions by prisoners. habeas corpus petition promote meaning- tends not to a Justice, Department Report United States opportunity ful to obtain state review. Such a Attorney Corpus the General: Federal Habeas limitation therefore undermines innovative at- Judgments Review State The Unit- tempts corpus at federal habeas reform and Department signifi- proposed ed States Justice may unintentionally shift the review burden corpus cant reform of federal habeas review of judiciary from the state to the federal courts. judgments. pro- state posal These reforms included a Moving corpus habeas review of state matters "federal to confine habeas review from our own courts to the federal courts seems meaningful process to cases where a for consid- unlikely objective Legislature. of our ering petitioner’s a federal claims was denied in the state courts." Id. at 55. The basic idea of 5. Rule 65B of the Utah Rules of Civil Procedure this reform "would be to treat federal habeas provides dismissing measure, peti- a method for frivolous backstop as a which would they fully litigated tions only play judicial system public before are come into if a state at provide 65B(b)(7), (c)(4). meaningful opportu- expense. had failed to nity some See Utah R.Civ.P. raising having a federal claim and it Cook, example, For v. Fernandez nal defendant. Smith (Utah 1989), Supreme the Utah Court held that an ineffective assistance of in many interpretation, The State’s may claim counsel be raised for the first the contin- cases leave unremediable would corpus proceeding time in a habeas prisoner, of a wrongful ued confinement incompetent the allegedly attorney same jus- miscarriages of egregious could lead to represented petitioner during the trial and suppose example, tice. take an extreme To appeal.7 the at According Id. judge juror jailed returning a direct orders ly, legal permitted his the Court petitioner the not-guilty verdict.6 Unaware state of options despondent pursue corpus petition, about his his filed habeas five affairs, action for prisoner takes no imposed months after the trial court view, upon three months. In the State’s final The sentence. Id. re expiration pe- limitation three-month mand ordered this state’s riod, have no choice but prisoner would wholly illusory Court would be if the Court indefinitely prison because remain expected the three-month statute of limita known at person reasonable would have petitioner’s tion to bar cause action. jail he hauled the moment was off.to cases, appellate In a number of other committing judge’s illegal. action was spoken availability courts have months, juror- elapse After three corpus remedy alleged prisoner simply would have no recourse but counsel, ineffective assistance of a rather whim, jail judge’s languish at the even if hollow characterization the State’s view though legitimate the State has no interest essentially controlled and all of claims confining illegally. someone were, matter, practical time-barred. interpretation of when the State’s See, Humphries, 818 P.2d e.g., State v. period begins three-month limitation would (Utah 1991) (defendant would petitions, bar not instant but es- typically “require[d] present ... be prem- sentially all claim of ineffective assistance of trial or ised on claims of assistance of ineffective appellate postconviction pro in a counsel counsel. This is when the dere- so because court”); in the ceeding trial State Gar occurred, may liction it be said that defen- rett, 1993) App. dant —or at least defendant’s counsel—“in (“[ojrdinarily, assistance of [ineffective diligence exercise reasonable should may only through counsel raised claim] have known” trial ... counsel’s derelic- corpus pro in habeas a collateral attack tion. It would then seem that case Prisoners, ceedings”). typically are who trial, of ineffective assistance of counsel at law, unlikely in to not trained the are have any resulting corpus habeas would suspect rep immediate reason to that brought have to be within three months inadequate. Upon resentation was eventu trial. has consistently Yet it been assumed discovery possibility, they al of that have that habeas relief for ineffective promptly no from as long incentive refrain assistance at trial is available after serting their claim. trial. titude, resulting wrong. appears, 6. As a scenario it the conviction was See farfetched as such Case, Frame, 401, (Utah 1986) happened actually a while back. Bushell’s State v. 135, (1670). Eng.Rep. (claimant Vaughan rep- See must "demonstrate that counsel’s 475, 484, Rodriguez, objective Preiser v. 411 U.S. 93 S.Ct. resentation falls below an standard of 1833, (1973). reasonableness”). 36 L.Ed.2d 439 Inevitably, a habeas prisoner forthcoming a will not from attorney same ineffective who counsel, maintains by

A7. claim of ineffective assistance of his because the nature, three months after conviction very likely by is to be a three- barred period begins "grounds once limitation which in month limitation under the State’s inter- diligence should have exercise reasonable pretation of when the cause action accrues. petitioner.” been known ... counsel for is The crux of such a claim that a reasonable (1992) (emphasis attorney Code Ann. § would known contested be- Utah added). have that, inept inep- was due to counsel’s havior does, I argues The State nonetheless believe it two basic reasons. prevent petitioners First, necessary statute is interpretation the alternative is more rights. from While sitting paramount on their this consistent with the role that policy gen- underlies of limitation legal statutes “the Great plays system. Writ” our erally, and death row inmates applies Second, interpretation conforms with execution, postpone who no ratio- wish theory “continuing wrong,” of a explain prisoner’s nale can desire to bide a recognized has long analogous been cir- time, incarcerated, unlawfully his for the cumstances. purpose corpus peti- a bringing tion distant future. some time in the Peti- 1. The Great Writ

tioner, all, prov- after the burden of bears Corpus The Writ of ing and, high occupies his addition Habeas claim to the incarceration, price Anglo-American essential niche in the prolonged risks with com evidence, mon delay deliberate loss of law and is the common wit- law writ nesses, necessary prove protection explicit and recollection received in the Unit respect his case. ed And with concerns States and Utah Constitutions. See U.S. Const, Const, I, 2; I, a about staleness should retrial art. become cl. Utah art. § necessary peti- as a of a successful availability result 5. The provides the Writ tion, point kept must be in mind: important “one judicial of the of all most tools protection for the of individual liber governmental

While the interest in elimi- ty.” nating one, is Hurst v. legitimate stale claims it the scope While must be remembered that the Writ increasing encompass has evolved to decreasing variety staleness is offset of con conduct, punishment: stitutionally unacceptable interest in “The “in farther in each postconviction proceeding petitioner’s] grievance time a case is from is that he [the original conviction, being subjected is unlawfully physical more difficult but, will equally, be retrial greater restraint.” v. Rodriguez, Preiser 411 U.S. portion original sentence that 93 S.Ct. Ac will already completed.” have been cordingly, “the is essence by person custody upon attack People Germany, 350 n. 5 legality custody, of that and ... the tradi (Colo.1983) ABA, (quoting Standards For tional the writ function of is to secure Criminal Justice: Postconviction Reme- Id., illegal custody.” release from 411 U.S. dies, Commentary to Standard 22-2.4 at addition, 93 S.Ct. at 1833. In (2d 1982)). 22.27 ed. Montana rightfully has not Court Interpretation E. Best ed that Accordingly, I favor alternative inter central function the courts [t]he pretation statutory scheme. Such a However, justice. achievement of like all reading is the “liberal construction]” man, justice endeavors of the search for “promote[s] justice”; which better it re is not without occasional flaws. From solves “ambiguity ... favor of a criminal Magna [Carta], the time of the the Great defendant”; it is not inconsistent with the Corpus Writ of liberally Habeas has been legislative attention; history called our employed guaranteeing as a means of and it unacceptable prac avoids results in judicial goal that accomplished Moreover, tice. adopting alternative miscarriage justice and that a of will be interpretation necessity, avoids the at least Comm, remedied. See Blackstone 129 at case, in addressing the statute’s heart, seq. et For at repre- writ constitutionality. Lounsbury v. See Ca acknowledgement princi- sents an of the 188, pel, 836 App.1992) 196 ple rights that freedom of the (“[W]e construe the statute in a manner worthy protection. individual are which potential will pit avoid constitutional falls.”) But interpretation 268, (Mont. does the I Perry, favor State v. 758 P.2d 273 have a firm in underpinning jurisprudence? upon just pass property, completes one’s results where

In order to arrive Courts, however, a cause of action. have restraint of illegal or other imprisonment adapted to rarer instances a pro- where defen- liberty in challenged is habeas wrongful a period dant’s actions occur over balanc- be a delicate ceedings, there must cases, of time. In such “where a continu- finality and goals: ing of competing two chain ous of events or course of conduct is agree with Jus- liberty. respect In this I involved cause action accrues at the analysis: tice Stewart’s time of the final act in that series events favoring the judicial policy The general or course of conduct.” v. Barbaccia always ... finality judgments cannot Clara, F.Supp. 260, County Santa by a writ of prevail against an attack (N.D.Cal.1978). inqui- The of an focus finality important as corpus. As habeas plaintiff’s ry allegations into whether are is, higher a value than it not have does continuing wrong governed by theory liberty. guarantees wrongful is on the defendant’s activities. Hurst, 777 P.2d at 1035. Justice Largo, County, New Port v. Inc. Monroe holding a reasoning to directed his Stewart 1507, (S.D.Fla.1988). F.Supp. estoppel nor issue that “neither collateral applied “continuing have Courts an defense a habe- preclusion is absolute contexts, wrong” theory variety in a 1036, reasoning case,” equal his is as id. at particularly rights are at where civil stake. applicable in of limitations ly the statute See, e.g., Realty Corp. v. Havens Cole The the State context.8 realization man, 380-81, 1114, 363, 455 U.S. 102 S.Ct. rights per of a violates the constitutional (1982)(under 71 L.Ed.2d 214 continu is day illegally he or she confined son each ing theory, long one discrimi wrong so as comports conceptual underpinning with the period, natory falls limitation act within Consequently, Great Writ. such occurring peri outside limitation even acts interpretation promotes just best results barred);9 Case-Hoyt are not time Lee v. od illegal prisoner’s a claims of cases where (W.D.N.Y. F.Supp. Corp., 779 arguably or restraint have confinement 1991) (although wage discrimina alleged merit. began plaintiff received tion lower Continuing Wrong hire, pay paycheck at time of each consti ongoing wrong of limi Generally, “a tuted cause of action accrues purpose); Wyatt Mort happening of the last event neces tations v. Union Co., Cal.Rptr. 24 Cal.3d sary complete gage the cause of action.” Bec (1979) (where Reese, 598 P.2d one ton Dickinson & Co. case, wrongful acts in fur typical continues to commit In a conspiracy, peri reasonably therance of civil limitation application of this rule begin single oc does until last overt act oc straightforward a event od because curs); McMillen, curs, nose tres- Russell punch such as or 65B(b)(3), Hurst, petitioner's Utah 78-12-31.1 con- Code the trial ruled good delays exception of Civil Proce- claim was barred Rule cause tains no 65B(i)(4) statute, raised in a dure because issues corpus. petition have should been State, second place interpreted urged by the if would Hurst, petition. were raised in the first finality higher judicial policy on value time, 65B(i)(4) permitted at 1032. At that Rule constitutionally protected than liberties. plaintiff in a claims to raise constitutional interpretation would be inconsistent Such an good second "for cause shown.” Cf. with the Utah Court’s well-reasoned (”[a]d- 65B(b)(3) (amended 1991) Utah R.Civ.P. analysis Hurst. relating legality ditional claims subsequent may not be raised in commitment continuing wrong applying doctrine 9. shown”). proceedings good except cause case, Supreme rights the United States this civil that, among The Utah reasons, Court held other "[wjhere challenged viola- Court stated good showing justi- cause that “[a] one, continuing is the staleness concern tion may fies claim of a successive Coleman, Realty disappears.” Corp. v. Havens by showing illegality established ... 363, 380, 102 S.Ct. previ- 455 U.S. sentence.” Id. at 1037. both Unlike 65B(i)(4) ous Rule current Rule (in determining when (Colo.App.1984) runs, separate “each of limitation RENN, Appellant, David Petitioner and separate and dis- publication constitutes a v. libel”); Graveley Ranch tinct claim for PARDONS, UTAH STATE BOARD OF 240 Mont. Scherping, Respondent Appellee. leaking (1989) (in nuisance action where cattle, neighbor’s lead batteries harmed No. 920292-CA. statute of continuing injury tolled nature Appeals Court of of Utah. Branch, 221 limitations); Mont. Shors (1986)(each day a Sept. easement, of their gate obstructed free use Rehearing Denied Oct. action). cause of plaintiffs a new obtained petitioners’ substantive Assuming legally cogni- factually

claims are true and

zable, is a continu- daily their confinement based on convic-

ing wrong because it is in violation of

tions which were obtained rights Amendment. under Sixth allege that petitioners

Because these unlawfully detaining them on an

State is basis, continuing

ongoing application of the

wrong here consistent with doctrine is

application variety in a of other situations justice

where so dictates. Because the last necessary complete

act a habeas illegal

cause of action is confinement and

illegal continuing wrong, confinement is

the three-month statute limitation did

not commence at the time a certain affida- denied,

vit was filed or a motion day petitioner starts is ille-

but anew each

gally confined.

F. Conclusion petitioners’

Because the actions were

timely filed under the statute of limitations construed, properly the district court dismissing

erred in on the

theory that the statute of limitations and,

barred oil that them. It basis— therefore, seeing the need to ad- without constitutionality I dress the statute’s —that

join my colleagues remanding peti-

tions for consideration on the merits.

Case Details

Case Name: Currier v. Holden

Court Name: Court of Appeals of Utah

Date Published: Sep 17, 1993

Citation: 862 P.2d 1357

Docket Number: 920467-CA, 930123-CA

Court Abbreviation: Utah Ct. App.