Kendall v. Olsen , 2017 Utah LEXIS 112 ( 2017 )


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  •                      This opinion is subject to revision before final
    publication in the Pacific Reporter
    
    2017 UT 38
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    SEAN KENDALL,
    Appellant,
    v.
    BRETT OLSEN, LT. BRIAN PURVIS, JOSEPH ALLEN EVERETT,
    TOM EDMUNDSON, GEORGE S. PREGMAN, and
    SALT LAKE CITY CORPORATION,
    Appellees.
    No. 20150927
    Filed July 19, 2017
    On Direct Appeal
    Third District, Salt Lake
    The Honorable William Barrett
    No. 150900558
    Attorneys:
    Ross C. Anderson, Marshall Thompson, Salt Lake City, for appellant
    Samantha J. Slark, Salt Lake City, for appellees
    Sean D. Reyes, Att’y Gen., Philip S. Lott, Joshua D. Davidson, Asst.
    Att’ys Gen., Salt Lake City, for amicus curiae
    ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
    which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS,
    and JUSTICE PEARCE joined.
    ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶1 Sean Kendall seeks a declaration that Utah Code sections 63G-
    7-601 and 78B-3-104 violate the Open Courts Clause of the Utah
    Constitution by restricting access to courts in lawsuits against police
    officers. The district court dismissed Kendall’s claims on summary
    judgment, concluding that Kendall lacked standing and,
    alternatively, that his claims failed on their merits. We affirm
    KENDALL v. OLSEN et al.
    Opinion of the Court
    without reaching the merits of Kendall’s constitutional claim—or
    even the merits of the district court’s standing analysis—because
    Kendall fails to carry his burden of challenging the district court’s
    standing decision, which was an independent basis for its dismissal.
    I
    ¶2 This case arises out of an unfortunate incident in which a Salt
    Lake City police officer shot and killed Kendall’s dog. Kendall seeks
    to assert a civil action against the police officer and other
    government officials for damages related to the death of his dog.
    And he claims that two statutes impermissibly restrict his access to
    the courts to bring his claim.
    ¶3 The two statutes in question erect high barriers to civil suits
    against police officers. The first, Utah Code section 63G-7-601,
    requires that any plaintiff seeking to sue a governmental entity “file
    an undertaking . . . in the amount of $300, unless otherwise ordered
    by the court.” The second, section 78B-3-104, applies only to civil
    actions against police officers “acting within the scope of the officer’s
    official duties.” In such cases this statute requires that the plaintiff
    “post[] a bond in an amount determined by the court.” UTAH CODE
    § 78B-3-104(1). And it specifies that “[t]he bond shall cover all
    estimated costs and attorney fees the officer may be expected to
    incur in defending the action, in the event the officer prevails.” 
    Id. § 78B-3-104(2).
    ¶4 Kendall filed a complaint in the district court. He sought a
    declaratory judgment that the bond and undertaking statutes were
    invalid under the Open Courts Clause. That provision guarantees a
    right of access to judicial process:
    All courts shall be open, and every person, for an
    injury done to him in his person, property or
    reputation, shall have remedy by due course of law,
    which shall be administered without denial or
    unnecessary delay; and no person shall be barred from
    prosecuting or defending before any tribunal in this
    State, by himself or counsel, any civil cause to which he
    is a party.
    UTAH CONST. art. I, § 11.
    2
    Cite as: 
    2017 UT 38
                            Opinion of the Court
    ¶5 After discovery, the district court found that Kendall was
    “willing and able to post the $300” required by the undertaking
    statute. It also found that “Kendall [was] impecunious and as a
    result, he [was] not required” to comply with the bond statute. Based
    on these findings, the district court concluded that Kendall lacked
    traditional standing to challenge these statutory provisions. It also
    held, in the alternative, that the undertaking and bond statutes were
    constitutional.
    ¶6 Kendall filed a timely appeal in this court. We then
    transferred the case to the court of appeals. And in the court of
    appeals, Salt Lake City moved for summary disposition under rule
    10 of the Utah Rules of Appellate Procedure, contending that
    Kendall lacked standing and thus that the issues identified in
    Kendall’s docketing statement did not “raise any justiciable
    controversy.” Kendall responded by asserting that he had “public
    interest” standing, contending that the constitutional issues raised by
    the undertaking and bond statutes were “of sufficient public
    importance to warrant review.” But Kendall’s filings failed to
    address the traditional standing basis for the dismissal of his claims
    in the district court.
    ¶7 The court of appeals deferred a ruling on those issues until
    the decision of the case after full briefing. We later vacated the
    transfer and recalled the appeal to this court.
    II
    ¶8 The Open Courts Clause guarantees access to court. It
    requires that “[a]ll courts shall be open,” guarantees “due course of
    law” “without denial or unnecessary delay,” and assures that “no
    person shall be barred from prosecuting or defending” a “civil cause
    to which he is a party.” UTAH CONST. art. I, § 11. Kendall’s claims
    strike at the heart of these provisions. He asserts that Utah Code
    sections 63G-7-601 and 78B-3-104 erect such substantial barriers to
    litigation that he is effectively “barred” from prosecuting his claims
    against the officers who killed his dog. And Kendall cites credible
    grounds for a constitutional challenge to these provisions.
    ¶9 Yet we have no occasion to reach the merits of these claims
    here. The problem is that Kendall has not carried his burden on
    appeal. He has failed to challenge the district court’s standing
    analysis—an independent basis for the dismissal of the case on
    3
    KENDALL v. OLSEN et al.
    Opinion of the Court
    summary judgment. And the lack of such a challenge leaves us with
    no basis for reversal and thus no choice except to affirm.
    ¶10 The district court ruled that Kendall lacked traditional
    standing. It found that Kendall was “willing and able to post the
    $300” undertaking, and that he was “impecunious and as a result . . .
    not required to furnish a bond.” Because Kendall “can afford the
    $300 filing fee,” and did not need to post a bond, the district court
    concluded that the undertaking statute would not “deprive [him] of
    some constitutional right.” And on that basis the district court held
    that Kendall did not “ha[ve] standing to challenge the bond and
    undertaking statutes.”
    ¶11 This was a square, independent basis for the dismissal of
    Kendall’s claims. Yet Kendall failed to address the standing issue at
    all in his opening brief on appeal. Kendall’s opening brief speaks
    exclusively to the merits of Kendall’s claims, which the district court
    addressed in the alternative. But there is not a word on standing in
    the opening brief on appeal, and that is problematic.
    ¶12 Our rules of appellate procedure place the burden on the
    appellant to identify and brief any asserted grounds for reversal of
    the decision below. See UTAH R. APP. P. 24(a)(5), (9). And we have
    accordingly held that an appellant’s failure to “challenge a final
    order of the lower court . . . place[s]” that final order “beyond the
    reach of further review.” Allen v. Friel, 
    2008 UT 56
    , ¶ 7, 
    194 P.3d 903
    .
    We have further stated, moreover, that “we will not reverse a ruling
    of the district court that rests on independent alternative grounds
    where the appellant challenges only one of those grounds.” Gilbert v.
    Utah State Bar, 
    2016 UT 32
    , ¶ 24, 
    379 P.3d 1247
    .
    ¶13 Kendall does address standing in his reply brief. But that was
    too late. When an appellant saves an issue for the reply brief, he
    deprives the appellee of the chance to respond. And that leaves us
    without a central tenet of our justice system—adversariness. That is
    fatal. We have consistently held that “issues raised by an appellant
    in the reply brief that were not presented in the opening brief are
    considered waived and will not be considered.” Brown v. Glover, 
    2000 UT 89
    , ¶ 23, 
    16 P.3d 540
    ; see also State v. Brown, 
    853 P.2d 851
    , 854 n.1
    (Utah 1992).
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    Cite as: 
    2017 UT 38
                             Opinion of the Court
    ¶14 Kendall also addressed standing in his opposition to the
    appellees’ motion for summary disposition. And we could perhaps
    consider that briefing as incorporated by reference in the opening
    brief on appeal. But even accepting that for the sake of argument, it
    still would not remedy Kendall’s briefing problem. The motion for
    summary disposition expressly challenged Kendall’s traditional
    standing, yet Kendall’s response completely ignored that question. It
    spoke only to “alternative” standing. And that left the district court’s
    traditional standing analysis unrefuted—which leaves us without a
    basis for anything other than an affirmance of the district court’s
    dismissal of Kendall’s case.
    ¶15 We affirm on the basis of Kendall’s failure to carry his burden
    of persuasion on appeal. And we do so without endorsing the merits
    of the district court’s standing analysis or its alternative
    consideration of the merits.
    5