*1 VRW, Accordingly, we award Thiele VRW, 1994 WL C93-1928 C93-1927 Rule of Civil 803, extraordinary relief *1, at 36907, U.S. Dist. LEXIS at 65B(d) 1994) (“No Judge Anderson (N.D.Cal. 31, Procedure order court *1 Jan. jurisdiction.” Utah R. [his] “has exceeded notice of dismissal Plaintiffs required. 65B(d)(2)(A). action.”); hereby P. It is ordered Civ. by itself terminate effective notice of dismissal under Rule 92-CV-76881-DT, that Thiele’s Nevers, No. v. Green 41(a)(1) Further, hereby it is (E.D. or is valid. 7348, at *23 Mich. LEXIS U.S. Dist. 1993) 41(a)(1) jur Judge was without Anderson 13, is ‘self- dered (stating “Rule Apr. Septem ”). petition Thiele’s as of isdiction over executing’ 16, 3, 1998, September his ber is vacated.13 order Judge Anderson’s Jurisdiction II. analysis controls The above T. 27 I CONCUR: PAMELA Thiele’s jurisdictional question.
lingering GREENWOOD, Presiding Judge. Associate 41(a)(1) voluntary under Rule dismissal valid IN THE RESULT: 281 CONCUR proceedings in Seventh District renders ORME, Judge. K. though “‘the GREGORY nullity”’ is as “‘a Court —it ” brought.’ Barton v. been had never action Auth., Utah Transit 1994) Piper re (quoting In Aircraft Sys. Litig., F.2d Antitrust Distrib. Cir.1977)). (8th petitioner has When 41(a)(1), “no with Rule
properly complied and, longer controversy exists case in App.054 UT hence, jurisdiction to would lack the court Utah, Appellee, Plaintiff and STATE action.” Green proceed further 92-CV-76881-DT, Nevers, 1993 U.S. No. (E.D. Apr. at *23 Mich. Dist. LEXIS Mary Joseph K. KRUEGER 1993). Judge Consequently, we conclude Sawyers, Defendants Ann adop jurisdiction over Thiele’s Anderson lost Appellants. the date she filed her dis petition tion No. 981035-CA. his sub therefore vacate missal notice. We sequent order. Appeals of Utah. Court Feb.
CONCLUSION the Utah Rules of conclude that 25 We generally apply adoption Civil Procedure Likewise, pe- conclude that
proceedings. we adoption proceedings use titioners 41(a)(1) voluntarily an dismiss uncon- Rule Finally, adoption petition. we con- tested jurisdiction over Judge Anderson’s clude petition when she adoption ended Thiele’s voluntary dismissal. filed her notice of incorrectly Judge purported Anderson thus voluntarily right her dis- deny Thiele petition in District adoption miss Seventh her jurisdiction over the and to maintain Court petition. her, case, by showing inappropriate bias toward disposition need of this we
13. Based our Judge adoption petitioner. address assertion that Thiele’s unmarried Anderson violated Code Judicial Conduct *3 Skordas, Dunning, T. G. Elizabeth Gregory Watkiss, Delporto, and Brett J. Salt David B. City, Appellants. for Lake Strate, Schindler, John E. Gene E. Jr., Price, Harmond, Appellee. George M. Swanson, Hunt, Jeffrey J. Salt Lake Brett City, Chapter of the for Amicus Curiae Utah Society Journalists. of Professional P.J., WILKINS, DAVIS and Before BILLINGS, JJ.
OPINION
WILKINS, Presiding Judge: have been 1 Defendants delinquency of minors
contributing to the Code Ann. 78-3a- violation of Utah 801(l)(a)(ii) court denied trial these criminal motions to dismiss their successfully sought they each charges interlocutory bring appeal permission doing prior punished court to trial. We have consoli- students would not be so. this they appeals because facts defendants maintain that dated their nearly identical. For presented issues are did not “ask” or “instruct” the admit purposes appeal, of this defendants rather the stu- but told charges they ordinarily are do the factual bases dents “to what would do.” correct, statements, reserving right to contest certain none of the students allegations factual event of trial. provided chewing claimed defendants
tobacco or asked a non-user to chew. How- ever, HOLDING reported Krueger one student chewed tobacco with the students. 2 For that we will detail reasons opinion, we the statute in fact hold that purposes For of both of their motions *4 (2) to; prohibits stipulated the the conduct to dismiss the trial court and also of this necessary trier fact find the intent of appeal, the defendants concede that some of (3) alleged; present from the facts as the testify the students involved would that Saw- vague to language of the statute is not so as yers Krueger asked them to tobac- clause; process render it void under the due “for images co the camera” so video of (4) neither the First Amendment chewing tobacco could be used press the free United States Constitution nor part story. as of news protections of Article Section 15 ¶ 7 charged The defendants were each with Utah prosecution Constitution acts to bar contributing five counts of to the this case. aof minor in violation of Utah Ann. Code (1996). 78-3a-801(l)(a) § Both defendants BACKGROUND filed a motion charges. to dismiss the The ¶ City 3 KTVX in Salt Lake television agreed trial court defendants could employs Mary Sawyers reporter Ann as a (i) prosecuted be of subsection Joseph Krueger a as cameraman its statute.1 the trial court ruled that 18, 1997, February they operation. news On defendants could be prosecuted under sub- Price, High were invited to School in Carbon (ii) of prohibits the statute which report to observe and on a school as- doing any adult from act which “tends to sembly designed discourage students from cause minors to become or remain delin- using chewing tobacco. quent,” and also concluded that subsection (ii)
¶4
of
unconstitutionally
the statute was not
assembly,
Before the
the defendants
vague,
given
possible implications
even
of
a
employee
contacted school
and asked her
protections
the constitutional
applicable to
presently
find students who
chewed tobacco
press.
§
Utah Code Ann.
78-3a-
willing
and who were
to be
after
interviewed
801(l)(a)(ii)
assembly.
employee
identi-
school
fied two such students.
appeal,
On
defendants contend that
(1)
assembly,
5 After the
defendants and the
is proper
dismissal
the stipulated
building
two
students left the school
not prohibited
of
(2)
statute;
walked into
parking
they
the school’s
lot where
possess
did not
they
they
necessary
met other
also
required
students who
said
intent
for conviction un-
(3)
statute;
chewing
used
tobacco and wanted to be inter-
der the
the statute itself is so
on,
point
vague
viewed. From this
the facts are in
constitutionally
defective un-
dispute.
police,
In their
process
statements
der the due
of
clause
the Fourteenth
several
students claimed that
defendants Amendment to the United States Constitu-
tion;
during
asked them to chew
special
tobacco
the inter-
press rep-
their
role as
resentatives,
view and that the defendants stated that the
engaged in the
coverage
78-3a-801(l)(a)(i)
charged
Section
crime
makes
defendants could not be
under this sub-
solicit,
command,
request,
encourage, or inten-
section because the offense the students were
tionally
possession
aid or
with a
in the
"act[]
minor
viola-
with was
and the
federal,
any
tion of
state or local law or
provided
munici-
State did not contend that defendants
pal
trial
ordinance.” The
court ruled that the
tobacco.
(ii)
§
78-3a-
Subsection
prosecution
story, prevents
news
legitimate
801(l)(a)
make it
crime for
purports to
instance.
in this
or older to take
person
be
to cause minors to
action that “tends
ANALYSIS
delinquent,” and does
come or remain
proof
did in fact be
require
that the minor
§
Prohibitions of
A.
delinquent
committed a
come
that,
that the trial
argue
first maintain
a matter
9 Defendants
act.3 Defendants
motions
dis-
denying
their
this case cannot
alleged
court erred
facts in
actions do not
the fact-finder
miss because
lead to
conclusion
(ii)
Specifical
of subsection
prohibitions
come within
defendants violated
statute.
78-3a-801(l)(a) (1996),2
ly,
Ann.
cannot
of Utah Code
defendants contend
(ii)
allegation of
accepting the State’s
because the
prosecuted
even when
under subsection
pos
is the
“delinquency” alleged
students’
facts.
in violation
chewing
tobacco
session
76-10-105,4
ruling on mo
and because defendants
trial court’s
A
coming
nothing
which we
do
the students
question
is a
law
had
tion
dismiss
tobacco, they
giving
particular
possession
no
correctness
into
review for
*5
for
legal
possibly
conclu
held accountable
to the trial court’s
cannot
be
deference
Taylor, 884 P.2d
re
tending
to cause minors to become or
sions. See State
Moreover, the in
this
Ct.App.1994).
delinquent.
main
Defendants bolster
presents
argument
of
were
by noting
a statute
an issue
that
minors
terpretation of
charged
possession
which we review for
of tobacco under
statutory construction
with
Centre,
76-10-105,
possessed,
Berube v. Fashion
and that once
See
section
correctness.
(Utah 1989).
1033,1038
Ltd.,
legally prohibited
not a
the use of tobacco is
therefore
act for
minors. Defendants
that
Although the State contends
by the
argue
of the tobacco
that because use
Sawyers
Krueger suggested
that
not,
itself,
delinquent
a
students was
in
already in the stu-
chew tobacco
students
charged,
be
it
for which the minors could
suggest
that
it does not
possession,
dents’
can
encouraging
that
that use
must follow
reporters
the tobacco or encour-
provided
to
tends to cause minors
not be conduct that
already
possession
in
of
aged students
delinquent.
or remain
become
The record
to also chew.
reveals
tobacco
prevail in
13 For defendants to
students who
reporters simply
asked
accept
analysis,
required to
legal
it
this
we would be
age at which
is
to
under the
were
pur
already
premise
delinquency,
for
had chew-
possess
and who
statute, only in
contributing
possession,
poses
to
of the
ing
in their individual
tobacco
they may be
reporters
acts minors for which
so that the
could cludes
the tobacco
a criminal or
delinquency
under
for inclusion
videotape
us to con
requires
It also
anti-chewing
juvenile
as-
statute.5
the news
of the
in
account
encouraging the use of tobacco
sembly.
clude that
misdemeanor,
may
guilty
be
of a
C
makes it a crime
class
Section
2.
jurisdiction
juvenile
subject
any
of the
court.
any person
years
to
to the
or older
take
for
(2)
appointed
compliance
board
to
A
officer
a
which "tends to cause minors
become
action
may
53A-3-402
of education under Section
or remain
of this section
citations for violations
issue
78-3a-801(2) provides: "It is not nec-
property.
Section
Cited viola-
committed on school
juve-
this
essary
a conviction under
reported
appropriate
in order
obtain
tions shall be
to the
a
the minor had become
statute to establish that
nile court.
delinquent act.”
delinquent or
a
committed
authority
clearly
it is
within the
5.While
provides:
76-10-105
4. Section
Legislature
adult offense
contribut-
to limit the
ing
delinquency
this
of a minor to
narrow-
Any person
of 19
who
circumstance,
yet
has
been
buys,
possession
no such restriction
accepts,
er
[or her]
or has
his
adopted.
cigar, cigarette,
or tobacco in
form
minor,
cannot,
already
“contributing
delinquency”
a
a
to the
possessed
minor
law,
causing
a minor
that those words
matter
constitute
but
delinquent.
reject these notions.
remain
We
widespread usage
give
had such
clear
so,
doing
we hold that
the definition of
meaning that
de-
and understandable
“delinquent,”
as used
section 78-3a-
aid, encourage
notes actions that will
801(l)(a)(ii),
only
is not
acts
limited
those
children in
involve
conduct which is con-
by a child
which
can
the child
be hailed
law,
trary
contrary
which
so
language
into court. Given the additional
generally accepted
decency
standards of
78-3a-801(2),
that an
adult
morality that
its result will
substan-
guilty
contributing
delinquen-
found
to the
mental,
tially harmful
moral or
cy of
establishing
a minor without
that the
physical well-being of the child. This con-
delinquent
minor became
or committed a
sufficiently
notation of those terms is
well
act,
delinquent
Legis-
apparent
it is
that the
ordinary
persons
known
intelli-
category
lature intended to include a broader
gence
judgment who
so
desire to do
Moreover,
of acts
adults.
difficulty
no
governing
would have
78-3a-801(l)(a)(i) clearly provides
conduct
the statute.
prosecution
person
of a
18 or older who
at 808-09.
Id.
solicits,
commands,
requests,
encourages, or
adopt
We
definition of
aids,
intentionally
or acts
with minor
by the court in
described
Tritt.7 Under
state, federal,
specific
violate
or local law.6
case, persons
ordinary
facts
intelli
It is under this
subsection of the statute
gence
judgment
difficulty
no
would have
prosecution
encourag-
would properly lie for
knowing
encouraging
children to chew
ing
possess
a child to
tobacco in direct viola-
encouraging
tobacco amounts to
accept
tion of
law.
state
To
the defendants’
the child that
under the
*6
argument
prosecution under subsec-
—that
despite the fact that use
of tobacco
(ii)
tion
is also
to
limited
the same acts
the
separate
minor is not identified as a
delin
(ii)
adult
make subsection
—would
quent
prohibiting
under the statute
pos
surplusage,
mere
interpretation
and such an
of tobacco
session
a minor.
is inconsistent with
long standing prac-
our
¶
Ironically,
acknowledge
16
defendants
reading statutory
of
language
tice
to
so as
they
grounds
that
were on the school
to
give meaning
provision.
to each
See West
story
cover a
about the harmful
of
effects
(Utah
Morrison,
445,
Jordan v.
656 P.2d
446
fact,
tobacco
children.
the
1982);
Bd.,
v.
Grant
Utah State Land
26
they
assembly
had traveled
the
to
to
school
100,
(1971).
1035,
Utah 2d
485 P.2d
1036
directly
cover focused
on evidence of that
knew,
import
14 The clear
harm. Defendants
pre-
or
be
(ii)
78-3a-801(l)(a)
known,
in subsection
of section
sumed to have
use
tobacco
comports
analysis
substantially
with the
Su
the Utah
children
the
harmful
to
preme
Tritt,
v.
Court
23
2d
physical well-being.
childrens’
Under
365,
Tritt,
chew tobacco
ordinarily do.
they
to do what
would
students
contend that
¶ 20 Defendants further
could
dispute,
a fact-finder
Based on
78-3a-
proper
dismissal is
because section
encouraged
certainly
that the defendants
find
801(l)(a)(ii)
vague be
unconstitutionally
causing
the children
chew tobacco—thus
give adequate
notice of
cause
fails
in viola
delinquent,”
to “remain
the students
prohibited conduct.
forbidding possession
of the statute
tion
Alternatively, a fact-
by a minor.
tobacco
reviewing
consti
When
the defendants
finder could determine
statute,
tutionality
presume
of a
we must
prolonged the time in which
Tritt,
is constitutional. See
that the statute
violation,
causing
committing
again
were
A
“will not be
jective of the defendants motivation clearly defined.... are prohibitions is the tobacco8 ing the children give person of laws insist [W]e Therefore, it would in this case. irrelevant opportu- ordinary intelligence a reasonable to determine be sufficient for fact-finder is so that he nity prohibited, to know what for one or more of intended that defendants accordingly.... must [L]aws possession of the prolong children explicit standards for those provide [also] or remain or to otherwise become impermissi- vague them. A law apply who commonly as are delinquent, those words policy police bly delegates matters to basic defined, recognized again and in Tritt [officers], juries judges, and resolution us here. basis, subjective hoc and with ad arbitrary ¶ and dis- Moreover, dangers of attendant whether defendants 19 criminatory application. required pres- mental state acted with using chewing dangers harms of children expressed was Ironically, intent the defendants’ 8. images story on the tobacco. in a news use the video 496 104, State, City Rockford,
Grayned v.
408 U.S.
stitutional attack. See Loveland v.
53
2294,
108-09,
2298-99,
131,
942,
(1939);
92
L.Ed.2d Ariz.
86 P.2d
945
S.Ct.
38
State
106,
964,
McKinley,
222
53 N.M.
202 P.2d
966
cases);
Friedlander,
(citing
State v.
Similarly,
Supreme
23
the Utah
Court
453,
(1926);
250 P.
455
Wash.
is
has held that
statute
not unconstitution-
Harris, 105
141 S.E.
W.Va.
638-39
sufficiently
ally vague
explicit
it is
to in-
if
(1928). Directly
point,
the court
ordinary
what
form the
reader
conduct
McKinley upheld
making
it an
statute
of
prohibited
in a
that does
and does so
manner
encourage
fense to
to cause or
“tendf]
arbitrary
discriminatory
encourage
delinquency
McKinley,
[a minor].”
Greenwood,
at
enforcement. See
817 P.2d
statute,
Regarding
P.2d at 965.
819;
Theobald,
State v.
McKinley
Legislature’s
court held that
curiam).
1982) (per
failure to define what acts constitute the
78-3a-801(l)(a)(ii) (1996) pro-
24 Section
964-66;
at
offense is not fatal. See id.
ac
person
vides that it is unlawful for
Friedlander,
(stating
cord
at
250 P.
simi
“tend[
or older
to cause minors
]
proposition
lar
when statute made it an of
become or remain
Such lan-
cause,
“encourage,
fense to
or contribute to
guage provides adequate notice to the ordi-
minor”).
dependency
delinquency
aof
“It
nary
prohibited
despite
reader of
province
Legislature
is within the
“delinquent”
the fact that
the term
is not
creating
particu
an offense to define it
specifically
disputed
defined in the
statute.
it,
description
constituting
lar
acts
not,
25 This case does
as defendants
produces
to define
as an act which
a cer
believe, present
would have us
a situation
tain
McKinley,
defined
described result.”
adequately
where Utah law fails to
define an
added);
(emphasis
at
P.2d
Friedlan
essential
term such
ambi-
der,
(same).
analysis Free and Press respect Guarantees Tritt what consti- contributing delinquency, tutes Finally, defendants contend child, aof we hold stat- journalists prosecuting engaged in news question unconstitutionally ute is not gathering activities under the circumstances vague. case of this is unconstitutional under the “delinquency” “contributing terms *8 First Amendment and Article 1 Section 15 of delinquency” to the ... ... have such the Utah Constitution. presents This widespread usage give as to clear and un- question of law which we review for correct meaning they derstandable denote ac- Arbon, 1270, ness. See State v. aid, encourage tions that will or involve (reviewing 1271-72 Ct.App.1996) dis contrary children in conduct which is trict court’s decision ques on constitutional contrary general- or which is so correctness). tion for ly accepted standards of decency and mo- argument 29 The essence of defendants’ rality substantially that its result will be regarding the First Amendment to the Unit- mental, physical harmful to the moral or Constitution, guarantees ed States and its well-being child. press, a free as well that of Article 1 Tritt, at 808-09. Constitution, Section 15 of the Utah is this: statute, upholding alleged Even if the we conduct the defen- states, comport with other upheld proscribed which have dants falls within that nearly 3a—801(l)(a)(ii), against identical statutes con- similar and even if alleged 78—
497 prohibited by the First clearly would jury to include may found conduct violation, 1 Section 15 of and Article Amendment necessary criminal intent for a Branzburg v. Constitution. See is constitutional- if statute itself and even the 665, 681-83, 2646, Hayes, 408 U.S. S.Ct. vague- alleged for ly sound when reviewed (1972) 2656-57, (recognizing L.Ed.2d defining “delinquent” specifically in not ness protection gath- for Amendment news First delinquency” of a “contributing to the However, the First Amend- ering). while pro- minor, press of the free application then activities, gathering news it protects ment state constitutions of the federal and tections news, not, securing the interest does of these defendants. prohibits prosecution give criminal press license to violate laws. alleged that the BOWe hold 691, at 92 S.Ct. at See id. pro- fall within that the defendants does special immunity “has (providing media no 78-3a-801(l)(a)(ii), that it scribed general laws” al- application from the the neces- may by jury to include be found though violating provide law could newswor- intent, not sary that the statute is void information); thy 16A Am.Jur.2d Constitu- such, we reach the defen- vagueness. for As tional Law 504 challenge.9 dants’ final constitutional ¶ Krueger Sawyers being are not ¶ Defendants and Amicus di simply prosecuted reporting for on activi- number decisions attention to a rect our recording ties of the children or for video principles to apply First Amendment clearly images of the children. These are represen prosecution of prevent the criminal protected the First Amend- activities under arising reporting press from Rather, tatives of the Sawyers Krueger and are ment. However, in of these illegal conduct.10 none setting up allegedly being prosecuted defendant-reporters alleged story” cases were the images “visual to illustrate subjects reports of their journal- have asked the they claim is “essential to television Moreover, in none these presented violate law. From the facts our ism.”11 defendant-reporters alleged review, Sawyers Krueger were the appears cases merely using other anything images done than of children chew- have wanted visual illegal Presumably, they If if had come report ing on the conduct. record tobacco. tobacco, already chewing upon that the alleged the facts were children images impu- with simply videotaped the chil could have collected visual defendants had nity. this did occur. Accord- possessing or with dren more, ing alleged by upon the State and nothing of the defendants to the facts prosecution Among things, activity. Chapter other code alone that The Utah such provides It is this issue Society of the should: Society Journalists has that members of Professional brief, which it filed its Amicus Curiae and on headlines, news teases ... Make certain that argued before us. video, audio, graphics, photos, sound bites and _ misrepresent!,] quotations over- do Co., Publ'g Daily context; 443 U.S. 10. See Smith v. Mail highlight simplify out of incidents 101-06, 2667, 2670-72, 61 L.Ed.2d 99 S.Ct. misleading staged re-enactments or news avoid prosecution newspa- (prohibiting events; compassion for those who show grounds pers when Amendment news- First coverage adversely to news .... be affected published juvenile papers truthfully de- dealing using special sensitivity when obtained); lawfully linquent’s children; which was name using against guard or video audio 809, 829, Bigelow Virginia, audience; 421 U.S. S.Ct. way deceives the material in (1975) (prohibiting 44 L.Ed.2d sponta- by presenting public not mislead the *9 prosecution newspaper editor First staged or news and material which is neous rehearsed; published grounds he adver- Amendment when acknowledge recognize that organization’s abortion tisement out-of-state photojournalists at all times maintain should Co., services); Publ'g. conduct; v. Denver Colorado highest standards of ethical strive (1979) (simi- Colo. 1039-40 high example by to maintain and influence Smith). lar to mercenary ethical free of standards of conduct kind; and, pic- strive considerations brief, truthfully, honestly objec- report Society of Professional Jour- tures 11. In its tively. Orga- cites to the Professional Journalism nalists Organiza- Society of Journalism Professional of Ethics. It instructive and nizations’ Codes Ethics, approve perhaps does Code of 6-9 that the code not tions’ ironic based, DAVIS, Judge which the motions to dismiss are (dissenting): Krueger Sawyers asked children to ¶ 38 I majority opinion. dissent from the videotaped chew tobacco so that it could be my It is view that based on the lan- plain report. for the television news 78-3a-801(l)(a)(ii) guage ¶ asking It in 83 was children to us, Utah Code and the facts before defen- tobacco, chew the if that is in fact what dants cannot found have caused happened, beyond stepped that defendants minors here “become or remain delin- protections of the First Amendment quent.” § See Utah Code Ann. 78-3a- Simply representa put, Article 1 Section 15. 801(l)(a)(ii) (1996). Therefore, I would re- may press encourage tives of the not crime verse the trial court’s denial of defendants’ it, they my so that report record Motion to Dismiss the Information. prosecution and then claim amounts 78-3a-801(l)(a)(ii) attempt government provides to restrain Section abridge press. may that an engage the freedom of the adult in that “tends to cause minors become or presented Under circumstances delinquent.” § remain Id. 78-3a- case, imposition rights we find no on the 801(l)(a)(ii). case, In this the information press protected by of free Amend- First identifies the “us[ing] impor- ment or Article Section 15. As possessing] or ... us[ing] tobacco tobacco tant press free and unfettered is to the property.”1 on school majority As the readi- society, survival and prosperity of free concedes, ly the State facts, under these may defendants not insu- late their actions under the cloak of the First suggest does not reporters provid- that the Any applied Amendment. fetters to defen- ed the encouraged tobacco or t[he] stu- conduct, alleged dants were invited their already dents not in possession of tobacco which the may finder fact at trial well also chew. The record reveals conclude was criminal. reporters simply asked students legal who were under the at which it is CONCLUSION tobacco, possess already and who had properly The trial court denied de- chewing tobacco pos- individual fendants’ motions dismiss. The conduct session, to chew the tobacco so that engaged to have been the de- reporters videotape could the students fendants falls within that described as con- chewing for inclusion the news account tributing to of a minor and the anti-chewing assembly. proscribed by § Utah Code Ann. 78-3a- added.) (Emphasis Thus, because it is undis- 801(l)(a)(ii). necessary required intent puted already students possessed for conviction be found the trier of it is accordingly undis- fact Moreover, from the alleged. facts as puted that defendants did not do anything to unconstitutionally vague statute is not cause the students to “become ... delin- failing on its face for to define the term “de- 78-3a-801(l)(a)(ii). quent.” § See id. linquent.” Finally, the defendants’ acts are protected by the First Amendment or issue, therefore, 40 At is whether Article 1 Section 15 of the Utah Constitu- asking the chew the tobacco al- tion. ready possession, in their defendants caused the students to delinquent.” “remain See id. 36 The order of the trial court is affirmed added). § (emphasis and the matter remanded for trial. When interpreting statutory language, “[w]e ¶ 371 CONCUR: JUDITH M. presume Legislature that the used each word BILLINGS, Judge. advisedly, give and we effect to each term Although separate appeal, not a issue on to "remain Utah Code Ann. 78- language in the (1)(a)(ii) (1996). information does not track sec- apparently 3a—801 Defendants *10 3a—801(1)(a)(ii), tion as none of the counts object. 78— not did charged allege that defendants caused the minors time but would have waited until ordinary accepted mean- according its to property. Accordingly, & were off school the Summerhayes ing.” State Bar Utah 1995). (Utah. way encouraged by were in no de- students Hayden, P.2d delinquency, stay prolong same fendants to but “to in the “Remain” is defined as form, already to were determined remain delin- unchanged in or “to continue place” condition, status, quent. Webster’s quantity.” Dictionary 1919 International
Third New
¶43
impossible
it
logically
Because
is
to
pursue
charges
the facts of this
these
case,
majority suggests
every-
that since
the case
the
definition to
Applying this
body
meaning
“contributing,”
us,
charges
knows the
provide
to
a basis for
before
3a—801(l)(a)(ii),
“decency,” “morality,”
“delinquency,”
defendants’
under section 78—
“mental, moral or
the
to what
is harmful
must have caused
behavior
child,”
well-being
accept-
it
physical
chew-
is
possession
[a]
continue or remain in
criminally responsible those
ing
absent
able to hold
who
conspicuously
tobacco.
statutorily
events to
assertion
cause these
undefined
allegations
from the State’s
majority
already
go
did not
so far
had
occur. Even if the
students “who
allege
a delin-
possession” were
eliminate the need
tobacco in their individual
act,
definition,
quent
one
absent a
process
dispossessing
in the
themselves
same,
by
he or she
encouraged
defen-
so
would discover whether
but were
actually
keep
Regardless
contributed
another’s
dants
tobacco.
only when the finder of fact makes that
merely possessing
were
whether the students
Here,
any given
by
person,
determination in
case.
not-
having
the tobacco
it on their
it, withstanding
allegation
specific,
on-
by chewing
possessing
were
the tobacco
not
going
act that was
caused
the fact remains that the students were “re-
defendants,
help
the ma-
maining
of de-
continued
acts of
delinquent” without the
jority
defendants could
no action
nonetheless concludes
Accordingly,
fendants.
there was
juveniles to become or remain de-
[the
to cause
cause the
“tend[ed]
defendants
linquent.
to ...
See
remain
students]
78-3a-801(l)(a)(ii) (1996).
Utah Code Ann.
analysis,
majority
its
support
In
Tritt,
exclusively
illogically expands
on State v.
majority
42 The
relies almost
(Utah 1970).
3a—801(l)(a)(ii)
Ar-
2d
from its sense “mental, physical moral harmful Tritt, child,” P.2d at well-being of the see ap then section clearly unconsti these defendants plied to McCully, re tutionally vague. See In 1997) (Utah to with (stating, scrutiny, lan stand constitutional “ ‘“sufficiently to in explicit guage must ordinary what conduct reader form the Frampton, v. (quoting prohibited’””) State 1987) (citation (Utah omit 737 P.2d ted)); the Utah State Board Comm’rs (Utah Petersen, 937 P.2d Bar v.
1997) (same); v. Lodges 719 & 2021 Elks Control, Beverage Department Alcoholic 1995) 1189,1202 (stating stat unconstitutionally vague ... ute “will held ambiguous that of the law are so if terms ordinary intelligence are unable persons of their acts conform determine whether law”); Hall, (same). Ct.App.1995) unnecessarily and incor- majority 47 The rectly attempts life into and ex- to breathe value, prece- little
tend decision that has otherwise; worse, opens the dential or that are offenses prosecutions door to rea- statutorily For above undefined. sons, Motion to I would hold defendants’ granted. should be
Dismiss the Information disposition, I would reach Based on by defendants. the other issues raised App UT CITY, Plaintiff FORK SPANISH Appellee, BRYAN, Defendant Debbie Appellant. No. 971662-CA. Appeals Court of Utah. 4, 1999. March
Margaret Lindsay, Aldrich Nelson P. Provo, Appellant. Weight Esplín, &