State v. Bridgewaters , 2020 UT 32 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 32IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
JEREMY WILLIAMS BRIDGEWATERS,
Appellant.
No. 20180190
Heard September 18, 2019
Filed May 28, 2020
On Certification from the Court of Appeals
Third District, West Jordan
The Honorable William K. Kendall
Nos. 171402352 and 171403026
Attorneys:
Sim Gill, Samuel P. Sutton, Salt Lake City, for appellee
Samantha R. Dugan, Salt Lake City, for appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Jeremy Bridgewaters was charged with two separate
instances of violating a protective order. After a preliminary
hearing, the district court, acting as a magistrate, bound him over
to stand trial. Bridgewaters moved to quash the bindover. He
argued that he had not been properly served with the protective
order he was accused of violating, and that a previously issued ex
parte order had expired. The district court denied his motion.
STATE v. BRIDGEWATERS
Opinion of the Court
Bridgewaters filed an interlocutory appeal, which the court of
appeals certified to us.
¶2 The statute that criminalizes violation of a protective
order (Violation Statute) requires the prosecution to prove that the
defendant was “properly served” with the order at issue. UTAH
CODE § 76-5-108(1) (2017). 1 While the Violation Statute does not
define proper service, the Utah Cohabitant Abuse Act (Act or
Cohabitant Abuse Act), id. §§ 78B-7-101 to -116 (2017), 2 under
which the orders in this case were issued, contains certain specific
procedural requirements that inform our analysis. We conclude
that the Act requires a protective order to be served in accordance
with rule 4 of the Utah Rules of Civil Procedure, even though a
protective order does not initiate a civil protective order
proceeding in the same way that a summons and complaint
commence other civil actions. Because the protective order here
was served pursuant to rule 5, it was not properly served.
¶3 However, as the district court correctly determined, the
ex parte order was still in effect at the time of the events in
question. Under the Act, once a court holds a hearing on a petition
for a protective order and issues such an order, a previously
issued ex parte order “remains in effect until service of process of
the protective order is completed.” Id. § 78B-7-107(1)(d) (2017).
¶4 Bridgewaters argues that even under such circumstances,
Utah Code § 78B-7-107(1)(c) (2017) does not permit an ex parte
order to remain in effect longer than 180 days. We disagree with
his reading of the Act. Because the district court issued a
protective order after a hearing, the “ex parte protective order
remain[ed] in effect” until the protective order was served in
accordance with the Act. See id. § 78B-7-107(1)(d) (2017).
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1 This statute was amended during the 2018 general session of
the Utah Legislature. See 2018 Utah Laws 1564. We refer to the
version of the statute in effect at the time of the alleged violations.
2 As with the Violation Statute, portions of the Cohabitant
Abuse Act have been amended. So we refer to the version of the
statute in effect at the time of the alleged violations.
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¶5 Accordingly, the magistrate properly bound over
Bridgewaters to face both counts to the extent they are based on
the ex parte order. We affirm.
BACKGROUND 3
¶6 On February 5, 2016, Bridgewaters’ former girlfriend
(T.T.) petitioned for a temporary protective order against him. The
district court issued an ex parte protective order (ex parte order)
that same day. The ex parte order prohibited Bridgewaters from
communicating with T.T. other than during court mediation
sessions, and from going to T.T.’s residence and workplace,
among other things. Bridgewaters was personally served with a
copy of the ex parte order the day it was issued. The order
indicated that there would be a hearing on February 23, 2016, and
it instructed Bridgewaters to “[g]o to the court hearing on the date
listed [on the order].”
¶7 The district court held a hearing on the scheduled date.
But Bridgewaters did not attend. Upon conclusion of the hearing,
the court entered a protective order, dated February 23, 2016. Like
the ex parte order, the protective order prohibited Bridgewaters
from communicating in any way with T.T. other than during
court mediation sessions and from going to T.T.’s residence and
workplace.
¶8 The Cohabitant Abuse Act requires that “[f]ollowing the
protective order hearing, the court shall . . . as soon as possible,
deliver the order to the county sheriff for service of process.”
UTAH CODE § 78B-7-106(4)(a) (2017). But for reasons that do not
appear in the record, the sheriff did not serve the protective order
on Bridgewaters.
¶9 Eventually, on May 3, 2016, counsel for T.T. stepped in
and filed a certificate of service, informing the court that counsel
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3 When reviewing a bindover determination, we view the
evidence in the light most favorable to the prosecution and
resolve all inferences in favor of the prosecution. See State v.
Virgin, 2006 UT 29, ¶ 24, 137 P.3d 787; State v. Clark, 2001 UT 9,
¶ 19, 20 P.3d 300 (“Viewed in the light most favorable to the
prosecution, the facts presented at the preliminary hearing were
sufficient to meet the reasonable belief standard.”).
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STATE v. BRIDGEWATERS
Opinion of the Court
had mailed a true and correct copy of the protective order to
Bridgewaters at his last known address. Notably, Bridgewaters’
last known address was T.T.’s residence at the time she filed the
protective order petition, and the ex parte order and protective
order both prohibited him from being there.
¶10 On June 27, 2017, T.T. spotted Bridgewaters at her
apartment complex. She and her adult daughter were returning
home late that night when they saw Bridgewaters exiting the
complex. Bridgewaters rolled down his car window and said that
he “was driving through.” 4
¶11 The next day, Bridgewaters texted T.T. Although the text
messages were from various unknown numbers, T.T. knew the
text messages were from Bridgewaters because of “the way he
addressed [her] . . . in them.”
¶12 The State charged Bridgewaters with violating the ex
parte order and the protective order in two separate criminal
cases: one related to Bridgewaters’ physical presence at T.T.’s
apartment complex, and the other related to the text messages he
had sent her the following day. After a preliminary hearing in
which both cases were heard together, the magistrate bound
Bridgewaters over to stand trial on both counts.
¶13 Bridgewaters moved to quash the bindover, arguing that
the State had not presented evidence that he had been properly
served with the protective order, and that the ex parte order had
expired at the time of the alleged offenses because the Cohabitant
Abuse Act prohibits an ex parte order from being extended
beyond 180 days. The district court denied the motion. It looked
to the language of the Act, which states that “[i]f at that hearing
[on the ex parte order] the court issues a protective order, the ex
parte protective order remains in effect until service of process of
the protective order is completed.” Id. § 78B-7-107(1)(d) (2017).
The court rejected Bridgewaters’ statutory interpretation and
concluded that the ex parte order remained in effect.
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4 At a different point in the preliminary hearing, Bridgewaters’
attorney asked T.T. if Bridgewaters had “told [her] he was just
turning around,” to which she responded, “Yeah.” While this
does not bear on the outcome, we include this information for the
sake of accuracy and completeness.
4
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¶14 Bridgewaters petitioned for permission to appeal from an
interlocutory order, which the court of appeals granted. The court
of appeals then consolidated the two cases for a single
determination and certified the case to us to decide (1) “whether,
pursuant to Utah Code section 78B-7-107, a properly served ex-
parte protective order may extend beyond 180 days if a
permanent protective order is subsequently issued but not
properly served upon a respondent” and (2) “whether rule 4 of
the Utah Rules of Civil Procedure governs proper service of
protective orders, as provided in Utah Code section 76-5-108, or
whether rule 5 governs.”
¶15 We exercise jurisdiction under Utah Code section 78A-3-
102(3)(b).
STANDARD OF REVIEW
¶16 The two questions before us are whether the protective
order was properly served as required by the Violation Statute,
UTAH CODE § 76-5-108 (2017), and whether the ex parte order
remained in effect under the Cohabitant Abuse Act, id. §§ 78B-7-
101 to -116 (2017), on the dates of the alleged offenses. These are
legal questions, which we review for correctness. See Keystone Ins.
Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 12, 445 P.3d 434(reviewing interpretation of rules of civil procedure for
correctness); Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶ 12, 267 P.3d 863 (reviewing questions of statutory interpretation
for correctness).
ANALYSIS
¶17 The State charged Bridgewaters with two counts of
violating “a protective order or ex parte protective order issued to
[him] under Utah Code 78B-7-1, [the] Cohabitant Abuse Act.”
(Emphasis added.) The Cohabitant Abuse Act defines an “ex parte
protective order” as “an order issued without notice to the
defendant in accordance with this chapter.” UTAH CODE § 78B-7-
102(6) (2017). It defines a “protective order” as “an order issued
pursuant to this chapter subsequent to a hearing on the petition,
of which the petitioner and respondent have been given notice in
accordance with this chapter.” Id. § 78B-7-102(10)(a) (2017).
¶18 The parties do not dispute that the Violation Statute
requires the State to prove Bridgewaters was “properly served”
with the orders he is alleged to have violated. See id. § 76-5-108(1)
(2017). Bridgewaters contends that proper service means service
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STATE v. BRIDGEWATERS
Opinion of the Court
of process under rule 4 of the Utah Rules of Civil Procedure,
which was not done here. And while he does not dispute that the
ex parte order was properly served on him, he argues that it had
expired by the time of the alleged offenses. He contends that the
Cohabitant Abuse Act does not permit an ex parte order to remain
in effect longer than 180 days from its issuance, regardless of the
circumstances. See id. § 78B-7-107(1)(c) (2017).
¶19 We first analyze whether the protective order was
properly served. Because we conclude it was not, we then
determine whether the ex parte order remained in effect at the
time of the alleged offense.
I. SERVICE OF THE PROTECTIVE ORDER
¶20 Bridgewaters argues that the district court should have
granted his motion to quash the bindover because the State did
not produce evidence that he was properly served with the
protective order he is charged with violating. We agree that the
State was required to produce evidence of proper service, and that
proper service in this context mandates service under rule 4.
However, because this argument applies only to the protective
order, not the ex parte order, our agreement with Bridgewaters
here does not lead to a reversal of the magistrate’s decision on the
motion to quash. 5
¶21 As a threshold matter, proper service is an element of the
charged offense, and therefore the State was required to produce
evidence that Bridgewaters was properly served. At a preliminary
hearing, the State must “establish probable cause” by
“produc[ing] evidence sufficient to support a reasonable belief
that the defendant committed the charged crime.” State v. Virgin,
2006 UT 29, ¶ 17, 137 P.3d 787. And proper service is an element
of the crime charged here. The Violation Statute states that “[a]ny
person who is the respondent or defendant subject to a protective
order” or “ex parte protective order . . . who intentionally or
knowingly violates that order after having been properly served, is
guilty of a class A misdemeanor.” UTAH CODE § 76-5-108(1) (2017)
(emphasis added).
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5 Bridgewaters does not dispute that he was properly served
with the ex parte order. So this section deals only with service of
the protective order.
6
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¶22 Bridgewaters argues that proper service in this context
means service under rule 4 of the Utah Rules of Civil Procedure.
Although this is a criminal case, which is generally governed by
the procedural rules established in the Utah Rules of Criminal
Procedure, the protective order Bridgewaters is charged with
violating was issued in a civil proceeding under the Cohabitant
Abuse Act. See UTAH CODE §§ 78B-7-101 to -116 (2017). When a
plaintiff or petitioner commences a civil action, rule 4 generally
governs how the plaintiff must serve the summons and complaint
on the defendant. Rule 4 requires service upon the defendant
personally; leaving the documents at the defendant’s “dwelling
house or usual place of abode with a person of suitable age and
discretion who resides there”; delivery of the documents to an
authorized agent; or sending the documents by mail or
commercial courier service, “provided the defendant signs a
document indicating receipt.” 6 UTAH R. CIV. P. 4(d)(1)(A), (2)(A).
If the plaintiff cannot locate the person to be served, or if the
person is avoiding service, rule 4 allows the plaintiff to move to
serve the defendant by some other means. 7 Id. 4(d)(5)(A).
¶23 The State counters that the Cohabitant Abuse Act does
not require the protective order to be served in accordance with
rule 4. It argues that the protective order was properly served
when T.T.’s counsel mailed it to Bridgwaters’ last known address
in accordance with rule 5(b)(3)(C). Rule 5 governs the service of
pleadings and papers after a civil action has been initiated. 8 The
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6 These methods of service apply unless the defendant is a
“minor under 14 years old”; has been “judicially declared to be
incapacitated, of unsound mind, or incapable of conducting the
individual’s own affairs”; or is “incarcerated or committed at a
facility operated by the state or any of its political subdivisions.”
UTAH R. CIV. P. 4(d)(1)(B), (C), (D).
7 Specifically, alternative methods of service may be available
“[i]f the identity or whereabouts of the person to be served are
unknown and cannot be ascertained through reasonable diligence,
if service upon all of the individual parties is impracticable under
the circumstances, or if there is good cause to believe that the
person to be served is avoiding service.” Id. 4(d)(5)(A).
8Rule 5 permits service of a paper upon a party’s lawyer, or
upon a party if he or she is unrepresented, through the following
(Continued . . .)
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STATE v. BRIDGEWATERS
Opinion of the Court
State reasons that rule 5 should have governed service of the
protective order because the action had already commenced with
the ex parte order, which had been personally served on
Bridgewaters.
¶24 While the Violation Statute establishes that proper service
is an element of the offense, the statute does not contain further
guidance regarding what is meant by that phrase. So we turn to
the civil Cohabitant Abuse Act, under which the underlying
protective order was issued. Although the Utah Rules of Civil
Procedure govern service of process, pleadings, and papers in
civil cases, the Cohabitant Abuse Act sets forth some unique
procedures that are specific to protective order proceedings, as
described below. In light of this, the Act states, “Insofar as the
provisions of this chapter are more specific than the Utah Rules of
Civil Procedure, regarding protective orders, the provisions of
this chapter govern.” 9 UTAH CODE § 78B-7-106(12) (2017).
methods: emailing the paper to the email address provided by the
person; mailing it to the person’s last known address; handing it
to the person; leaving it at the person’s office with a person in
charge, in a receptacle for deliveries, or in a conspicuous place;
leaving it at the “person’s dwelling house or usual place of abode
with a person of suitable age and discretion who resides there;” or
any other method agreed to by the parties. Id. 5(b)(3)(B)–(G).
9 Article VIII, section 4 of the Utah Constitution requires this
court to “adopt rules of procedure . . . to be used in the courts of
the state.” The legislature may amend those rules “upon a vote of
two-thirds of all members of both houses of the Legislature.” See
also Brown v. Cox, 2017 UT 3, ¶ 17, 387 P.3d 1040. When the
legislature enacts procedure, this provision contemplates that it
must do so by amending our rules. Such an amendment “would
need to contain a reference to the rule to be amended and a clear
expression of the Legislature’s intent to modify our rules.” Id.
¶ 20.
While the Cohabitant Abuse Act contains unique procedural
rules that purport to supersede the Utah Rules of Civil Procedure
where applicable, see UTAH CODE § 78B-7-106(12) (2017), the
legislature did not enact those procedural provisions in a joint
resolution that amended the corresponding rule of civil
procedure. The State has not challenged the constitutionality of
(Continued . . .)
8
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¶25 Protective order petitions do not commence with a
summons and complaint. Compare id. § 78B-7-105 (2017)
(discussing forms for petitions and protective orders), with UTAH
R. CIV. P. 3(a) (discussing commencement of a civil action by filing
a complaint and serving a summons with a copy of the
complaint). Rather, if a person files a petition for an order of
protection, a court may immediately issue an ex parte protective
order, without notice to the respondent or a hearing, “[i]f it
appears from [the] petition . . . that domestic violence or abuse has
occurred.” UTAH CODE § 78B-7-106(1) (2017).
¶26 If the court issues an ex parte protective order, it must
schedule a hearing on the petition within twenty days of the
issuance of the ex parte order. 10 Id. § 78B-7-107(1)(a) (2017). If at
the hearing the court does not issue a protective order, the ex
parte order expires. Id. § 78B-7-107(1)(b) (2017). But if the court
does issue a protective order and the respondent is not present at
the hearing, “the ex parte protective order remains in effect until
service of process of the protective order is completed.” Id. § 78B-
7-107(1)(d) (2017).
¶27 Relevant here, the Cohabitant Abuse Act specifies how a
protective order issued after a hearing must be served. It states
that “[f]ollowing the protective order hearing, the court shall . . .
the Act’s procedural provisions, so we will not opine on that
question. We note, however, the practical concern with the way in
which section 78B-7-106(12) (2017) purports to take precedence
over less specific rules. In protective order proceedings, litigants
and courts are faced with two sets of procedural rules running on
parallel tracks and are required to make judgment calls about
which rule should apply in a given circumstance. Aside from any
constitutional concerns, the legislature could increase clarity for
the bar and the bench if it were to enact rule changes through joint
resolutions that specifically amend the relevant rule of procedure.
10The court may extend the ex parte order beyond twenty
days only if the petitioner is unable to attend the hearing, the
respondent has not been served, the respondent has had the
opportunity to present a defense at the hearing, the respondent
requests that the ex parte order be extended, or exigent
circumstances exist. Id. § 78B7-107(1)(b) (2017).
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STATE v. BRIDGEWATERS
Opinion of the Court
as soon as possible, deliver the order to the county sheriff for
service of process.” Id. § 78B-7-106(4)(a) (2017) (emphasis added).
¶28 The Act’s use of the phrase “service of process” indicates
that the protective order must be served in accordance with rule 4.
Most importantly, rule 4 explicitly governs service of process. See
UTAH R. CIV. P. 4 (titled “Process”). We have explained that
“[s]ervice of process implements the procedural due process
requirement that a defendant be informed of pending legal action
and be provided with an opportunity to defend against the
action.” Carlson v. Bos, 740 P.2d 1269, 1271 (Utah 1987). In this
context, “process” means a “summons or writ, esp[ecially] to
appear or respond in court.” Process, BLACK’S LAW DICTIONARY
(11th ed. 2019). And the phrase “service of process” is generally
understood as service on a defendant of the documents that
commence an action, pursuant to rule 4. See Weber County v. Ogden
Trece, 2013 UT 62, ¶¶ 28, 45, 48, 64, 321 P.3d 1067.
¶29 In using the phrase “service of process,” the legislature
referenced the procedure codified in rule 4. Accordingly, we
conclude that even though the protective order does not initiate a
protective order proceeding in the same way a summons and
complaint commence other civil actions, the legislature intended a
protective order to be served as if it were “process.” This
implicates rule 4, not rule 5. 11
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11 The State argues that it would be duplicative and
unnecessary to require rule 4 service of the protective order where
the ex parte order has already been personally served, as is the
case here. But the language of the Act does not support that
argument. It clearly states that a protective order issued after a
hearing shall be delivered “to the county sheriff for service of
process.” Id. § 78B-7-106(4)(a) (2017). The State does not identify
statutory language modifying this requirement where the
defendant was personally served with a previous ex parte order.
Further, such dual service would not necessarily be duplicative
and unnecessary, because both the ex parte order and the
protective order can give rise to criminal and civil liability in the
event of a violation. See id. § 78B-7-106(5)(a) (2017). And a
protective order can include certain additional restrictions not
present in the ex parte order. See id. § 78B-7-106(2)–(3) (2017). In
this way, a protective order is substantively different than other
(Continued . . .)
10
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¶30 But unlike rule 4, which puts the onus of service on the
plaintiff, the Cohabitant Abuse Act provides for rule 4 service by
the sheriff. See UTAH CODE § 78B-7-106(4)(a) (2017). The Act
directs the court to transmit the order to the sheriff “as soon as
possible.” Id. It then specifies that the sheriff must provide
“expedited service” for orders for protection, and that once the
order has been served, the sheriff must transmit verification of
service of process to the statewide domestic violence network. Id.
§ 78B-7-106(8)(a) (2017).
¶31 Here, for reasons that do not appear in the record, these
procedures were not completed. The sheriff did not serve
Bridgewaters with the protective order. Instead, T.T.’s counsel
mailed the protective order to Bridgewaters’ last known address.
¶32 Bridgewaters argues that this does not constitute proper
service under the Violation Statute because it does not satisfy the
requirements of rule 4. We agree. Because the Cohabitant Abuse
Act requires service of process pursuant to rule 4, mailing the
protective order to Bridgewaters’ last known address pursuant to
rule 5 does not suffice. 12 Accordingly, the protective order was not
papers and pleadings that are typically served under rule 5. The
State also raises a policy concern that a dual-service requirement
could allow a defendant to avoid service of the protective order
after being alerted to the proceeding by the ex parte order. We
note that our reading of section 78B-7-107(1)(d) (2017), infra
¶¶ 33–40, alleviates this concern by holding that the ex parte
order remains in effect until service of the protective order.
12 In his briefing, Bridgewaters occasionally appears to equate
rule 4 service of process with personal service. But as
Bridgewaters acknowledges, rule 4 includes service short of
personal service, such as service by certified mail, or by
alternative means in certain circumstances. UTAH R. CIV. P. 4(d)(2),
(d)(5). We are not presented here with the question of whether a
particular method of service under rule 4 meets constitutional
procedural due process requirements in this context. We hold
only that the Act requires service of the protective order under
rule 4.
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STATE v. BRIDGEWATERS
Opinion of the Court
properly served upon Bridgewaters as required by the Violation
Statute. 13
II. TIMEFRAME OF THE EX PARTE ORDER
¶33 Because we have determined that the protective order
was not served in accordance with the Act, subsection 107(1)(d)
applies. It states that “[i]f at [the] hearing the court issues a
protective order, the ex parte protective order remains in effect
until service of process of the protective order is completed.” UTAH
CODE § 78B-7-107(1)(d) (2017) (emphasis added). Based on this
provision, the magistrate concluded that the ex parte order was
still in effect. This was correct. 14
¶34 Bridgewaters does not dispute that the ex parte order
was properly served on him. However, he argues that another
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13 We flag another issue highlighted by these circumstances.
The Act specifies that a protective order is to be served by the
sheriff (or another law enforcement agency if it has contact with
the respondent and the agency determines it is in the best
interests of the petitioner to do so). See UTAH CODE § 78B-7-106(8)
(2017). Bridgewaters has not argued that the service here was
improper because it was completed by counsel rather than the
sheriff. However, it is arguable that the Cohabitant Abuse Act
requires not only rule 4 service, but rule 4 service by the entities it
specifies—the sheriff or another law enforcement agency. See id.
§ 78B-7-106(12) (2017) (“Insofar as the provisions of this chapter
are more specific than the Utah Rules of Civil Procedure,
regarding protective orders, the provisions of this chapter
govern.”). As Bridgewaters has not made this argument, we do
not resolve it. However, we note the issue in the event that the
legislature wishes to provide clarification.
14 The State argues that because the magistrate based its
bindover decision on subsection 107(1)(d), we should not reach
the issue of whether the protective order was properly served, as
we have done. See supra ¶¶ 20–32. But under the Cohabitant
Abuse Act, the ex parte order remains in effect only if “service of
process of the protective order” has not been “completed.” So it is
necessary to first determine whether the protective order has been
served in a particular case to ascertain whether subsection
107(1)(d) is applicable.
12
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provision of the Act limits the life of an ex parte order to 180 days,
so it had expired by the time of the alleged violations. See id.§ 78B-7-107(1)(c) (2017).
¶35 If a court issues an ex parte protective order, the Act
requires the court to hold a hearing on the petition within twenty
days. Id. § 78B-7-107(1)(a) (2017). “If at that hearing the court does
not issue a protective order, the ex parte protective order shall
expire, unless it is otherwise extended by the court.” Id. § 78B-7-
107(1)(b) (2017) (emphasis added). The Act then specifies that a
court may not extend an ex parte order beyond the twenty-day
period unless:
(i) the petitioner is unable to be present at the
hearing;
(ii) the respondent has not been served;
(iii) the respondent has had the opportunity to
present a defense at the hearing;
(iv) the respondent requests that the ex parte order be
extended; or
(v) exigent circumstances exist.
Id. The next subsection states, “Under no circumstances may an
ex parte order be extended beyond 180 days from the date of
initial issuance.” Id. § 78B-7-107(1)(c) (2017).
¶36 This is followed by subsection 107(1)(d), which states, “If
at that hearing the court issues a protective order, the ex parte
protective order remains in effect until service of process of the
protective order is completed.”
¶37 Bridgewaters argues that the language in subsection
107(1)(c) limits subsection 107(1)(d) and “shows a legislative
intent for all ex parte protective orders issued pursuant to the Act
to have a maximum effective life of 180 days.” Because the alleged
violations occurred more than 180 days after the ex parte order
was issued, Bridgewaters contends the ex parte order cannot form
the basis of the criminal charge against him. But this
interpretation of the statute is incorrect.
¶38 We agree with the district court that the 180-day limit on
extensions of an ex parte order in subsection 107(1)(c) modifies the
circumstances listed in subsection 107(1)(b) under which a court
may extend the ex parte order beyond twenty days. Both
subsections 107(1)(b) and 107(1)(c) use iterations of the word
“extend” (i.e., “extended” and “[e]xtensions”). Id. § 78B-7-
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STATE v. BRIDGEWATERS
Opinion of the Court
107(1)(b)–(c) (2017). This suggests that the two subsections should
be read in conjunction with one another. Further, each of these
subsections uses language suggestive of court action (i.e.,
“extended by the court” and “be extended”), id., but subsection
107(1)(d) uses the more passive language of “remains in effect,” id.
§ 78B-7-107(1)(d) (2017). Based on the language of these
subsections, it is apparent that subsection 107(1)(c) works with
subsection 107(1)(b) to prohibit a court from extending an ex parte
order beyond 180 days.
¶39 But while the 180-day limit applies to a court’s decision
to extend an ex parte order before the court has held a hearing or
before the court has issued a protective order, subsection 107(1)(d)
applies when a court has held a hearing and has decided to issue a
protective order. See id. (“If at that hearing the court issues a
protective order . . . .”). In this circumstance, the Act permits the
ex parte order to remain in effect until “service of process of the
protective order is completed.” Id. The 180-day time limit no
longer applies.
¶40 Here, in the underlying civil protective order
proceeding, the court issued an immediate ex parte order.
Bridgewaters was personally served with the ex parte order,
which notified him of the date of the hearing on the petition. 15 The
court held the hearing and determined that a protective order was
warranted. However, the protective order issued by the court was
not served in accordance with the Act. Under these circumstances,
the magistrate correctly concluded that the ex parte order
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15 We note that the ex parte order form contains potentially
confusing language. It states, “This order lasts until the above
hearing date; or later, if the court extends time for service.”
Although we flag this language to acknowledge its potential for
confusion, we also note the immediately preceding sentences: “Go
to the court hearing on the date listed below. If you do not go to
the hearing, the judge can make orders without hearing your
side.” The order lists a hearing date and time, along with the
commissioner’s name and the address and specific location of the
hearing. While these sentences alleviate potential confusion, we
flag this language for possible refinement in light of this opinion.
We also note that Bridgewaters has not raised any legal challenge
in relation to this language.
14
Cite as: 2020 UT 32Opinion of the Court
remained in effect at the time of the alleged violations. However,
we clarify that the charges against Bridgewaters may be based
only on a violation of the ex parte order, not the protective
order.16
CONCLUSION
¶41 We conclude that the ex parte order remained in effect at
the time of the alleged violations. Accordingly, to the extent that
the charges against Bridgewaters are based on alleged violations
of the ex parte order, we affirm.
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16 After the ex parte order had been personally served on
Bridgewaters, notifying him of its terms and a scheduled hearing
on the underlying petition at which he could be heard, the ex
parte order was technically not ex parte any longer. See UTAH
CODE § 78B-7-102(6) (2017) (defining “ex parte protective order”
as “an order issued without notice to the defendant” (emphasis
added)). However, we refer to it as the “ex parte order”
throughout this opinion to distinguish it from the protective order
and to remain consistent with the terms used in the statute.
15