Case Information
*1
This opinion is subject to revision before final
publication in the Pacific Reporter.
Plaintiff and Appellee,
v.
R EINALDO C , Defendant and Appellant. ——————— No. 20110835 Filed July 23, 2013 ——————— Third District, Salt Lake The Honorable Robin W. Reese No. 09190587 ——————— Attorneys: John E. Swallow, Att‘y Gen., John J. Nielsen, Asst. Att‘y Gen., Salt Lake City, for appellee Peter Daines, Salt Lake City, for appellant ———————
J USTICE L EE authored the opinion of the Court, in which HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE N EHRING , J USTICE D URHAM , and J USTICE P ARRISH joined.
———————
J USTICE L EE , opinion of the Court: Reinaldo Canton was arrested in Utah in April 2007 and indicted on federal charges of coercion and enticement of a fif- teen–year-old girl. Canton, a New Mexico resident, was released and returned to New Mexico to await trial. He remained there pending trial for over two years, though he returned tо Utah on a few occasions to attend proceedings in federal court. After the federal charges were dismissed in May 2009, Canton was charged by the State of Utah with enticement of a minor under Utah Code section 76-4-401. Canton moved to dismiss the charge based on the applica-
ble two-year statute of limitations. In so doing, he disputed the applicability of our criminal tolling statute, which tolls the limita- C tions period while a criminal defendant is ―out of the state.‖ See U TAH ODE § 76-1-304(1). In Canton‘s view, this provision was inapplicable because he was ―legally present‖ in Utah during the course of the federal court proceedings, in that he cooperated with federal authorities and appeared in various proceedings in the federal district court. Canton argued in the alternative that appli- cation of the tolling provision violated the Uniform Operation of Laws provision of the Utah Constitution. The district court denied Canton‘s motion. Canton filed this appeal. We affirm. The criminal tolling statute applies to Canton
because its text leaves no room for his notion of ―legal presence.‖ And applying the statute to Canton does not run afoul of the Uni- form Operation Clause, as Canton fails to show how any classifi- cation under the statute discriminates against him in an imper- missible manner.
I In March 2007, Reinaldo Cаnton, a New Mexico resident,
began corresponding online with an undercover federal agent posing as a fifteen-year-old girl. Canton engaged the agent in sex- ually-explicit conversation and ultimately arranged to meet the ―girl‖ for sex at the Layton Hills Mall in Utah. When Canton ar- rived at the mall on April 11, 2007, FBI agents and representatives of the Utah Internet Crimes Against Children Task Force arrested Canton. Soon thereafter, federal officials charged Canton with co- ercion and enticement for illegal sexual activity under 18 U.S.C. § 2422(b). On April 19, 2007, a federal magistrate in Utah released Canton and allowed him to return to New Mexico to await trial on the federal charges. During the course of the next fifteen months, federal offi-
cials in New Mexico monitored Canton and reported to their counterparts in Utah. Canton cooperated with the investigation against him and traveled several times from New Mexico to Utah to attend proceedings in federal district court. On July 29, 2008, Canton suffered an aortic dissection (a tear in a large blood vessel branching off of the heart), which required surgical intervention. Thereafter, Canton claimed he was too ill to continue traveling to Utah and filed a motion to dismiss based on his deteriorating health. The federal court granted this motion without prejudice on May 14, 2009.
¶6 Less than two months later, on June 30, 2009, the State of Utah charged Canton with enticement of a minor under Utah Code section 76-4-401. The state charge was based on the same 2007 conduct that led to the filing of federal charges.
¶7 Canton moved to dismiss under the two-year statute of limitations applicable to the enticement charge, Utah Code section 76-1-302. The district court denied the motion, concluding that the limitations period had been tolled under Utah Code section 76-1- 304(1) because Canton had been ―out of the state‖ in New Mexico during the course of the federal prosecution against him. In deny- ing the motion, the district court rejected Canton‘s assertion that his ―lеgal presence‖ in Utah foreclosed application of the tolling provision. It also upheld the applicability of that provision against Canton‘s challenge under the Uniform Operation Clause of the Utah Constitution. Canton entered a conditional guilty plea, re- serving his right to challenge the application of the tolling statute on appeal.
II Canton contends that the district court erred in applying
our criminal tolling provision, which tolls the statute of limita- tions while a criminal defendant is ―out of the state,‖ see U TAH C ODE § 76-1-304(1). While Canton concedes that he was in New Mexico during the course of the federal prosecution, he offers two grounds for overcoming the tolling provision. He first asserts that the tolling statute is inapplicable as long as a defendant maintains a ―legal presence‖ within the state. In the alternative, he argues that application of the tolling provision violates the ―uniform op- eration‖ of laws provision in article I, section 24 of the Utah Con- stitution. Both points turn on questions of law, which we review for
correctness.
See Manzanares v. Byington
(
In re Adoption of Baby B.
),
A. Statutory Construction of ―Out of the State‖ Under our criminal tolling statute, ―[t]he period of limita-
tion does not run against any defendant during any period of time in which the defendant is out of the state following the commis- sion of an offеnse.‖ U TAH ODE § 76-1-304(1). The question before us concerns the meaning of the phrase ―out of the state.‖ Both
S sides agree that Canton was physically ―out of the state‖ (in New Mexico) for most of the two years in which the limitations period is claimed to have run. Yet they disagree about the significance of that fact. For the State, Canton‘s physical presence in New Mexico is
dispositive, as it reads ―out of the state‖ to refer to a defendant‘s
absence from the state‘s territorial boundaries. Canton sees the
matter differently. He interprets ―out of the state‖ to refer to a
more abstract construct. In his view a person is not ―out of the
state‖ if he is subjeсt to its legal authority—in the sense of cooper-
ating with federal officials investigating criminal charges in Utah
and appearing at federal court proceedings there. Thus, for Can-
ton the notion of ―out of the state‖ refers not to the state‘s physical
boundaries but its sovereign power. For him a person is not ―out
of the state‖ if he remains subject to its sovereign authority.
We read the statute as the State does. We interpret ―out of
the state‖ to focus on the question of a person‘s
physical
presence
within the state‘s territorial boundaries. Thus, we reject Canton‘s
abstract construct of
legal
presence, both as a matter of (a) the ―or-
dinary mеaning‖ of statutory language consisting of ―common,
daily, nontechnical speech,‖
Olsen v. Eagle Mountain City
, 2011 UT
10, ¶ 9, 248 P.3d 465 (internal quotation marks omitted), and (b)
under the possibility that the statute may employ a ―legal term of
art . . . with a settled meaning in the law,‖
Hansen v. Hansen
, 2012
UT 9, ¶ 19,
1. Ordinary Meaning of ―Out of the State‖ In determining the ordinary meaning of nontechnical terms
of a statute, our ―starting point‖ is the dictionary. See Hi-Country Prop. Rights Grp. v. Emmer , 2013 UT 33, ¶ 19, __ P.3d __. ―A dic- tionary is useful in cataloging a range of possible meanings that a statutory term may bear.‖ Id . (citing H ENRY M. H ART , J R ., A LBERT M. S ACKS , T HE L EGAL P ROCESS : B ASIC P ROBLEMS IN THE M AKING AND A PPLICATION OF L AW 1375–76 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994) [hereinafter H ART & S ACKS ]). ―It pro- vides ‗an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne.‘‖ Id . (quoting H ART & S ACKS , at 1190). ―Such a record, however, will often fail to dictate ‗what meaning a word must bear in a particular context.‘‖ . (quoting H ART & ACKS , at 1190). ―That question will often require further refinement—of selecting the best meaning among a range of options, based on other indicators of meaning . . . .‖ Id .
¶14 This is one of those cases where the dictionary fails to dic- tate the meaning that the statutory terms ―must bear‖ in this con- text. The operative phrase has two component parts—a function term (―out of‖) and its object (―the state‖). And dictionary defini- tions of both sets of terms leave the statute semantically open to both parties‘ interpretations. The phrase ―out of‖ is used ―as a function word‖ in a range
of different senses. W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1603 (2002). One sense ―indicate[s] direction or movement from an enclosed space to the outside,‖ or ―direction, motion, or distance from a . . . starting point.‖ Id. To illustrate this meaning, the dictionary lists examples of a child who ―fell out of the crib,‖ a person who ―took his hands out of his pockets,‖ or one who ―hit the ball out of the park.‖ Id. This sense of ―out of‖ seems in line with the State‘s construction of the tolling statute. It con- notes relational movement from a certain baseline, typically a physical one. That said, this definition does not exclude the possibility of
a metaphysical ―space‖ or ―starting point‖ from which something moves ―out of.‖ And some common uses of the phrase unques- tionably have an abstract referent. An argument can be ―out of bounds‖ by dint of its exceeding the governing rules of propriety and not any physical boundary, just as a technical advancement can be ―out of this world‖ in a figurative sense without the assis- tance of space travel. So this dictionary meaning of ―out of‖ is it- self insufficient to resolve the interpretive question before us. And the dictionary also includes another definition that is more clearly in line with Canton‘s position. ―Out of‖ is also used ―as a function word to indicate removal or situation away from the effective action of some faculty or agency.‖ Id . Here, moreo- ver, the listed examples expressly encompass ―removal‖ from an abstract ―faculty or agency,‖ as in ―the ships fled out of range,‖ ―he was soon out of sight,‖ and ― out of hearing.‖ . Thus, the diction- ary‘s range of meanings for ―out of‖ give no basis fоr limiting the statutory phrase to either physical or abstract absence; both con- structs fall within standard dictionary definitions. Dictionary definitions of ―the state‖ are similarly indeter-
minate. The referenced ―state‖ could certainly be the physical ter- ritory of the State of Utah, marked by its legal borders. Id . at 2228 (defining ―state‖ to include ―a territory‖ governed by a particular nation or sovereign). But the ―state‖ is also defined as an abstract authority—as in ―the operations, activities, or affairs of the gov- ernment or ruling power of a country: the sphere of administra- tion and supreme political power of a government,‖ or ―the em- bodiment of the ethical idea and the moral will of the communi- ty.‖ . The State‘s notion of ―out of the state‖ partakes of the first
definition listed above. A person can be said to be ―out of the state‖ in the sense of being physically outside of its territorial boundaries. But the latter definitions are in line with Canton‘s construction. A person could be said to be ―out of the state‖ in the sense of being removed from its political power or sphere of in- fluence. Dictionaries are accordingly insufficient by themselves to
resolve the interpretive task before us. We must look elsewhere to
determine the ordinary meaning of the language of the tolling
statute. Specifically, we must look beyond the dictiоnary defini-
tions of the component terms of the statute to consider the ordi-
nary meaning of the complete statutory phrase, ―out of the state.‖
See
John F. Manning,
The Eleventh Amendment and the Reading of
Precise Constitutional Texts
, 113 Y ALE L.J. 1663, 1704 (2004) (―[O]ne
can properly attribute to legislators the reasonable minimum in-
tention ‗to say what one would ordinarily be understood as say-
ing, given the circumstances in which it is said.‘ This principle, it
should be noted, does not direct interpreters to follow the literal
or dictionary meaning of word or phrase. To the contrary, it de-
mands careful attention to the nuances and specialized connota-
tions that speakers of the relevant language attach to particular
words and phrases in the context in which they are being used.‖
(internal quotation marks omitted));
Cabell v. Markham
, 148 F.2d
737, 739 (2d Cir. 1945) (L. Hand, J.) (―Of course it is true that the
words used, even in their literal sense, are the primary, and ordi-
narily the most reliable, source of interpreting the meaning of any
writing: be it a statute, a contract, or anything else. But it is one of
A first resort for selecting among a range of meanings left
open by the dictionary is the structure and context of the statutory
language.
See Olsen
,
tion of our criminal tolling statute. He insists that the State‘s no- tion of physical presence ―contradicts the legislative purpose of the statute,‖ which in his view is to preserve the ―balance between an individual‘s interest in repose and the State‘s interest in having sufficient time to build its case.‖ And in light of his full coоpera- tion with federal authorities during the pendency of the federal case against him here, Canton insists that the State‘s side of the ledger was a null set, as the State had ―sufficient time to investi- gate its case and file charges, notwithstanding [his] absence from the state.‖ Thus, Canton asks us to dismiss the State‘s construction as incompatible with the purpose of the criminal tolling provision as he sees it.
the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary . . . .‖). Canton‘s position falters in its premise. The tolling statute,
like most legislative enactments, is multi-dimensional in its pur-
pose.
See VCS, Inc. v. Utah Cmty. Bank
,
effect of a statute of limitations is strong medicine. It cuts off a
presumptively viable claim on the sole basis of the passage of
time. Thus, our statute of limitations jurisprudence is aimed not
only at balancing repose on one hand and an opportunity to pre-
pare a case for filing on the other, but also at fostering certainty
and avoiding unfair surprise.
[3]
The tolling statute must also be
understood to advance that concern. And that concern is ad-
vanced by the State‘s objective notion of physical presence—and
undercut by Canton‘s more abstract construct—in that the latter
approach would require subjective, case-by-case weighing of fac-
tors informing the degree to which an individual may be ―pre-
sent‖ in the state in the sense of being subject to its authority. For
these and other reasons,
[4]
we cannot properly reject the State‘s po-
[2]
See Jacobs v. Hafen
,
range of meanings left open by the dictionary. Here we can do so by moving beyond the component terms of the statute—―out of‖ and ―state‖—and considering the full phrase in its entirety. See FCC v. AT&T, Inc. , 131 S.Ct. 1177, 1183 (2011) (noting that ―two words together may assume a more particular meaning than those words in isolation‖). Dictionaries typically define only individual words, not ex-
tended phrases. So we cannot loоk up ―out of the state‖ in a dic- tionary. But that does not foreclose the possibility of identifying its ordinary meaning. We can do so by considering the way the full phrase is typically used in common parlance.
defendant subject to pending federal charges. State officials could rationally determine to await the outcome of the federal prosecu- tion to decide whether to pursue parallel state charges—as an out- of-state defendant could be seen as a lesser threat than an in-state one, particularly in circumstances where the anticipated federal penalty might effectively vindicate the state‘s сoncerns for pro- tecting the interests of its citizens. See Carranza v. United States , 2011 UT 80, ¶ 24, 267 P.3d 912
(plurality opinion of Lee, J., joined by Durrant, J.) (interpreting
―minor child‖ in Utah Code section 78-11-6 to include a fetus
based, in part, on the fact that ―the term ‗child‘ is used extensively
in the popular press to refer to the unborn‖);
id
. ¶ 35 (dissenting
opinion of Nehring, J.) (asserting the need for ―caution against
overreliance on dictionaries‖ and asserting that ―since 1851, the
term ‗minor child‘ has appeared in the pages of the [
New York
]
Times
2,866 times without ever referring to a fetus‖);
see also Mus-
carello v. United States
,
2. ―Out of the State‖ as a Legal Term of Art? That leaves the question whether the tolling statute‘s lan-
guage may consist of a legal term of art. The legislature is entitled
to invoke specialized legal terms that carry an extra-ordinary
meaning. And when it does so we credit the legal term of art, not
the common understanding of the words.
See Hansen
,
http://news.google.com, considering 150 instances in which the phrase ―out of the state‖ was used in news stories published in May 2013—27 of which involved references to the relationship be- tween a person and the state. Not one of those 27 relevant refer- ences use ―out of the state‖ in a manner involving absence of a person from the legal authority or influence of a state. Every sin- gle one of them makes unequivocal reference to the physical con- fines of a state.
principle purportedly incorporated by reference in the criminal tolling provision at issue here. Canton reads too much into Snyder and Lund —and not
enough into the operative text of the criminal tolling statute.
Snyder
, to be sure, interpreted the text of the civil tolling provision
in light of the ―objective of the statute‖—of ―prevent[ing] a de-
fendant from depriving a plaintiff of the opportunity of suing him
by absenting himself from the state during the period of limita-
tion.‖ 390 P.2d at 916. And in light of that purpose the
Snyder
court held that a nonresident motorist defendant who had by law
appointed the Secretary of State as his agent for service of process
was ―not ‗absent‘ from the state in the sense contemplated‖ by the
civil tolling statute.
Id
. (quoting the 1953 version of the civil tolling
provision, U TAH C ODE § 78-12-35, in light of the nonresident mo-
torist act, U TAH C ODE § 41-12-8);
see also Lund
,
driven by the terms оf the Nonresident Motor Vehicle Act— specifically, by the provision calling for appointment of the Secre- tary of State as agent of a nonresident motorist for service of pro- cess. Id. ¶¶ 29–36. Thus, in Olseth we explained that ―the defend- ants in th[o]se cases [were] not ‗absent‘ from the state because their agent [was] present and service [could] be effected within the state.‖ . ¶ 29 (emphasis added). At the same time, we declined
S TATE C to extend this principle to other cases (not implicating the Nonres- ident Motor Vehicle Act). For ―cases not involving a statutorily appointed agent, or not involving an agent within Utah,‖ we adopted a notion of physical (nоt legal) presence; we held that ―an out-of-state defendant is deemed ‗absent‘ from the state and the tolling statute tolls the applicable statute of limitations.‖ . Olseth thus disproves the term-of-art notion of legal pres- ence advocated by Canton. It indicates that we do not have an omnibus rule tying tolling to a person‘s susceptibility to service of process. And it also defeats Canton‘s position in this case, as Can- ton does not and cannot contend that he had an agent for service of process in Utah—only that he was loosely subject to the author- ity of the State as evidenced by his cooperation in the federal pro- ceedings against him. That is insufficient under our law, which leaves no room for the construction that Canton attributes to the criminal tolling provision.
B. Constitutionality of the Tolling Statute Our only remaining task is to consider Canton‘s challenge
to the constitutionality of the tolling statute‘s application in this case. His challenge arises under article I, section 24 of the Utah Constitution, the Uniform Operation Clause. That clause requires that ―[a]ll laws of a general nature
shall have uniform operation.‖ U TAH C ONST . art I, § 24. Historical- ly, uniform operation provisions were understood to be aimed not at legislative classification but at practical operation . Thus, at the See G. A LAN T ARR , U NDERSTANDING S C ONSTITUTIONS 197– 99 (1998) (explaining that uniform operation provisions were not understood historiсally as ―miniature equal protection clauses‖ regulating legislative classifications, but as protection against the ―creation of special privileges or exemptions‖ in the operation or application of general laws); R OBERT F. W ILLIAMS , THE L AW OF A MERICAN TATE ONSTITUTIONS 209–13 (2009) (noting that uni- form operation clauses originally reflected an ―opposition to fa- voritism and special treatment for the powerful,‖ and explaining that ―[a]lthough these provisions may seem to overlap somewhat with federal equal protection doctrine, closer scrutiny reveals sig- nificant differences,‖ in that such state provisions do ―not seek time of the ratification of the Utah Constitution, parallel provi- sions in other state constitutions were not viewed as a limit on the sorts of classifications that a legislative body could draw in the first instance, but as a rule of uniformity in the actual application of such classifications—a requirement of consistency in applica- tion of the law to those falling within the classifications adopted by the legislature, or in other words a prohibition on special privi- leges or exemptions therefrom. The modern formulation of uniform operation is different.
It treats the requirement of uniform operation as a state-law coun-
terpart to the federal Equal Protection Clausе. Our cases articulate
a three-step test for enforcing this guarantee. First we assess
―what classifications the statute creates.‖
See State v. Angilau
, 2011
UT 3, ¶ 21,
See State v. Robinson
,
547, 554–56, 563 (1861) (upholding a law against a challenge under
a constitutional provision identical to Article I, Section 24 of the
Utah Constitution even though that law created a category of one,
explaining that the ―expression . . . that . . . laws of a general na-
ture shall be uniform
in their operation
‖ only extended to ―persons
standing in the same category‖ (internal quotation marks omit-
ted));
Driggs v. State
,
standards of scrutiny also recognize, however, that other classifi- cations are so generally problematic (and so unlikely to be reason- able) that they trigger heightened scrutiny. . (noting that dis- crimination on the basis of a ―suspect class‖ (e.g., race or gender) triggers heightened scrutiny, as do classifications implicating ―fundamental right[s]‖). Canton presents no viable constitutional challenge to the
application of the tolling provision to this case. The historical re-
quirement of consistent application or enforcement (or its con-
comitant bar on special privileges or exemptions) is not at all im-
plicated here, as Canton‘s gripe is that the statute sweeps
too
broadly—in encompassing defendants who are ―out of the state‖
physically but still subject to its authority (and thus purportedly
outside the rational reach of the tolling statute). That concern, in
fact, runs precisely counter to that of the historical domain of uni-
form operation, which was to prescribe broad, uniform applica-
tion across the entirety of a legislative class, or in other words to
foreclose special privileges or exemptions from enforcement. And
Canton‘s claim is similarly deficient under the modern formula-
tion of uniform operation set forth in our caselaw, as he fails to
In formulating the applicable standards of scrutiny, our cases
generally incorporate principles from the federal equal protection
regime,
see, e.g., Blue Cross & Blue Shield of Utah v. State
, 779 P.2d
634, 637 (Utah 1989), while reserving the right to depart from
those standards in an appropriate case in the future,
see, e.g., State
v. Drej
,
attack the only classification drawn by the tolling statute (between those who leave the state after committing a crime and those who remain within it), and takes issue instead with the statute‘s failure to draw additional or different classifications. Canton‘s gripe is with the legislature‘s failure to sub-
classify—to draw further distinctions between compliant and non-compliant out-of-state defendants. He asserts that these two sub-classes are fundamentally different, and thus that it is uncon- stitutional to treat them similarly. That is not a viable, standalone basis for a uniform opera-
tion challenge. Our uniform operation standards are focused on examining the rationality of the classifications that were made by the legislature. See Angilau , 2011 UT 3, ¶ 21 (explaining that we begin by asking ―what classifications the statute creates‖). And concerns of over-inclusiveness, like the one raised by Canton, are relevant only insofar as they bear on the question whether the classification that was made clears the applicable standard of scru- tiny. Thus, even those litigants whose gripe is that the legislature has impermissibly grouped them into a category with other dis- similar individuals must demonstrate that the classification that put them there fails constitutional muster. Canton fails to do so, opting to question only what further sub-classifications the legis- lature might have made.
As Canton indicates, our prior opinions have sometimes re-
ferred to the principle that ―persons in different circumstances
should not be treated аs if their circumstances were the same.‖
See
Malan v. Lewis,
693 P.2d 661, 669 (Utah 1984);
see also Gallivan v.
Walker
,
legislature in the criminal tolling statute is beyond reproach. The
governing standard of review is rational basis, as there is no sus-
pect classification at work and no apparent fundamental right.
(Canton vaguely suggests that the tolling statute bears on his right
to travel, but fails to identify any component of that right that is in
any way implicated,
see State v. Chettero
,
——————