Kendall v. Olsen

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).
4
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