WASATCH COUNTY v. Tax Commission ( 2009 )

THORNE, Judge

(dissenting).

1 9 I respectfully dissent. I disagree with the majority's interpretation of Utah Code section 59-1-602 and its resulting conclusion that onee the County filed its cross-petition in the supreme court, the statutory venue option of district court review was no longer available to the County. The statute provides aggrieved parties with the right to choose the venue for judicial review by stating, "[alny aggrieved party appearing before the commission or county whose tax revenues are affected by the decision may at that party's option petition for judicial review in the district court pursuant to this section, or in the [Utah] Supreme Court or the [Utah] Court of Appeals pursuant to section 59-1-610." Utah Code Ann. § 59-1-602(1)(a) (2008). The statute clearly gives an aggrieved party the right to seek district court review. Under the cireumstances of this case it is certainly understandable that a party may want to establish a more complete and comprehensive record of the factual situation and cireumstances surrounding the issue on review. The statute does not, however, take the eminently reasonable view of the majority that active participation (including preservation of the opportunity to present claims) in one forum forecloses all other options.

10 The position adopted by the majority may be the preferable method of handling such reviews. The difficulty, however, is that the rule and procedures are not clear and place parties in the unfortunate position of "gambling" when trying to decide upon the appropriate course of action.

T11 In the race to the courthouse, the County came in second. The petition in the supreme court was filed first. The statute and rules do not inform the parties as to the appropriate "race" rules. Does the first party to the courthouse effectively decide the appellate venue? Will a party that believes a district court record is needed still have a right to establish a record if the opponent chooses a different option? Or if a party's right to seek review in the district court still has efficacy must that party do nothing but "respond" in the appellate forum, as opposed to presenting its own issues, in order to preserve the right to a district court venue? If a party simply responds and does not "cross-appeal" and it turns out that the first in time filing controls venue, has that party lost the right to have its issues and concerns addressed? If a party attempts to file a "boxcar" pleading, noting that the party is seeking review of its issues in the district court and is merely filing a "place-holder" in the supreme court, will that pleading be effective when not sanctioned by the rules? These are just a few of the permutations facing the parties in this matter.

112 A statute, court rule, or case law certainly might decide which rules are better or more efficient. But until that has happened, parties and their lawyers are without clear guidance. Without information as to the proper venue opting procedure, I believe that it is inherently unfair to strictly construe the statute against the County, as the majority does, when the County did not have the benefit of any statute, rule, or case law guidance as to how to properly exercise their statutory venue option.

13 Not only does the statute neglect to provide guidance as to the manner in which a party is to preserve its right to participate in an appeal where the parties opt for differing venue, see id. § 59-1-602, there is also no language in the statute that purports to make the venue option irrevocable, see id. As such, the statute does not appear to foreclose a request for change of venue in either the district court or supreme court. In situations where the application of the statute is unclear, we should look to the purpose of the statute.

When uncertainty exists as to the interpretation and application of a statute, it is appropriate to look to its purpose in the light of its background in history, and also to the effect it will have in practical application .... While it is true that our statutes are to be liberally construed to give effect to their purpose and to promote justice, it is equally true that they should not be distorted beyond the intent of the legislature.

Mountain States Tel. & Tel. Co. v. Payne, 782 P.2d 464, 466 (Utah 1989) (omission in original) (internal quotation marks omitted).

T14 The purpose of the statute at issue here is to provide each of the parties with the ability to meet their individual appeal needs based on the particular cireumstances of the case. They may either pursue a trial de novo in the district court or proceed to appeal the Commission's decision in an appellate court. See Utah Code Ann. § 59-1-602 (2008); id. $ 59-1-601 (granting the district court jurisdiction "to review by trial de novo all decisions issued by the commission," which trial de novo "means an original, independent proceeding, and does not mean a trial de novo on the record"). To liberally interpret the statute to allow the County to revoke its cross-petition and exercise its right to opt for a trial de novo, to temporarily stay the appellate proceedings, or both, promotes justice and is in accordance with the statute's purpose, garnered from the plain language of the statute, that is-to allow the parties flexibility to proceed in different courts. A statute or rule change may help eliminate confusion and expedite the review process, but this should be done prospectively, not after the fact and to the detriment of litigants.

1 15 Accordingly, I would reverse the district court's dismissal of the County's de novo review.