In re: J.M.S.

This opinion is subject to revision before
publication in the Pacific Reporter
2015 UT 35
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
In the Matter of the Adoption of J.M.S., a minor
———————
JACOB DAVID BROOKS,
Intervenor/Appellant,
v.
A.S. and J.S.,
Appellees.
———————
No. 20120683
Filed February 6, 2015
Fourth District, Provo Dep‘t
The Honorable Fred D. Howard
No. 122400005
Attorneys:
Wesley D. Hutchins, West Jordan, for appellant
Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees
William C. Duncan, Lehi, amicus curiae, for Sutherland Institute
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, and JUSTICE PARRISH joined.
ASSOCIATE CHIEF JUSTICE NEHRING filed a concurring opinion.1
JUSTICE DURHAM filed a dissenting opinion.
JUSTICE LEE, opinion of the Court:
¶1 This case, like Nevares v. M.L.S., 2015 UT 34, presents ques-
tions concerning the applicability and constitutionality of Utah
Code section 78B-6-111. That provision forbids a biological father
1 Associate Chief Justice Nehring acted on this case prior to his
retirement.
IN RE ADOPTION OF J.M.S.
Opinion of the Court
from challenging an adoption when his child was conceived as a
result of conduct that ―would constitute any sexual offense‖ de-
scribed in the Utah Criminal Code. In this case and in Nevares, the
statutory question presented is whether this provision can proper-
ly be construed to encompass sexual conduct in another state that
would have been criminal if engaged in in Utah. And in both cas-
es the biological father also asserts that such application of section
111 would violate his constitutional right to due process of law.
¶2 We resolve this case on the basis of our opinion in Nevares.
We hold that the ―sexual offense[s]‖ described in section 111 do
not encompass activities outside of Utah involving non-Utahns.
And on the basis of that conclusion, we reverse the denial of the
father‘s petition to intervene and remand for further proceedings
not inconsistent with this opinion.
I
¶3 Jacob David Brooks and the birth mother, both Pennsylva-
nia residents, conceived a child together in Pennsylvania. At the
time, Brooks was eighteen and the birth mother was fourteen. Due
to this age difference, the sexual relationship between the two of
them was prohibited by Pennsylvania criminal law. See 18 PA.
CONS. STAT. § 3122.1 (2014) (statutory sexual assault); id.
§ 3123(a)(7) (involuntary deviate sexual intercourse); id.
§ 3126(a)(8) (indecent assault). Brooks was later charged in Penn-
sylvania with statutory sexual assault and corruption of minors,
but pled guilty to indecent assault, a misdemeanor.
¶4 Meanwhile, the birth mother made preparations to place
the child for adoption in Utah. Brooks objected to these designs,
though it is unclear whether he knew the planned location for the
adoption. In time, the child was born and then relinquished for
adoption twenty-four hours later. The adoptive parents filed an
adoption petition in Utah, which Brooks became aware of two
weeks later. Brooks subsequently filed paternity documents in
both Utah and Pennsylvania, as well as a motion to intervene in
the Utah adoption proceedings.
¶5 The Fourth District Court denied Brooks‘s motion to inter-
vene, citing Utah Code section 78B-6-111. This section states,
A biological father is not entitled to notice of an
adoption proceeding, nor is the consent of a biologi-
cal father required in connection with an adoption
2
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Opinion of the Court
proceeding, in cases where it is shown that the child
who is the subject of the proceeding was conceived
as a result of conduct which would constitute any
sexual offense described in Title 76, Chapter 5,
Part 4, regardless of whether the biological father is
formally charged with or convicted of a criminal of-
fense.
Id. (emphasis added). According to the district court, Brooks‘s
conduct constituted a sexual crime under Utah Code section 76-5-
401, placing his conduct within section 78B-6-111‘s reach. For this
reason, the district court found that Brooks had no right to contest
the adoption. It thus denied his motion to intervene on that basis.
¶6 Brooks filed this appeal. In challenging the denial of his
motion to intervene, Brooks raises legal questions concerning the
interpretation and constitutionality of section 111. Our review is
accordingly de novo. See Manzanares v. Byington (In re Adoption of
Baby B.), 2012 UT 35, ¶ 41, 308 P.3d 382.
II
¶7 A threshold question is whether the interpretation and
constitutionality of section 111 are properly before us on appeal.
That question implicates the law of preservation and of adequate
briefing. For reasons set forth below, we hold that Brooks pre-
served these issues in the district court and adequately briefed
them on appeal to this court.
¶8 First, both the statutory and constitutional aspects of
Brooks‘s case were presented to the district court. In a memoran-
dum filed with the district court, Brooks asserted that the key
question is ―whether Utah or Pennsylvania law applies‖ and ar-
gued that ―Pennsylvania law should apply to this case.‖ Later, at
his hearing, Brooks argued that section 111 was ―unconstitutional
from a due process standpoint.‖ And although he framed his con-
stitutional arguments generally in terms of a concern about ―fo-
rum shopping,‖ he also asserted that a statute employed to ―cut
him out‖ of his parental rights was a ―violation of due process.‖
¶9 Brooks‘s counsel‘s statutory and constitutional arguments
in the district court were relatively superficial. Thus, instead of
presenting a careful analysis of the questions of statutory and con-
stitutional interpretation presented, Brooks‘s counsel devoted
most of his energy to developing a factual record of what he saw
3
IN RE ADOPTION OF J.M.S.
Opinion of the Court
as the misdeeds of the adoption agency officials involved in the
case. Specifically, in the district court and again on appeal, coun-
sel presented extensive transcripts of telephone calls to the adop-
tion agency, highlighting what counsel saw as the overly aggres-
sive assertions and positions taken by the agency‘s representa-
tives.2 That tack was unproductive. Counsel would have been far
better served staying focused on the legal questions at issue; the
attempt to smear an opponent with a sideshow based on a sting
operation was unhelpful.
¶10 That said, the legal questions presented are important, and
counsel adequately preserved them below. Brooks raised both
statutory and constitutional questions in the district court, and we
therefore deem them preserved for purposes of appeal.
¶11 We likewise find these issues adequately briefed on appeal.
In his opening brief on appeal, Brooks asserted that ―the essence
of the case‖ is that ―[a]ppellees should not be permitted to rely on
78B-6-111, when Pennsylvania law should apply.‖ And appellees,
in their brief, responded to his statutory argument at some length.
They asserted that ―nothing in the language of Section 78B-6-111
limits its application to cases where the child was conceived in
Utah,‖ while insisting that ―[w]hat is important is whether the fa-
ther‘s sexual relationship with the birth mother consists of the
type of conduct described under Title 76, Chapter 5, Part 4 of the
Utah Code.‖ That is the key statutory question in this case (and in
Nevares).
¶12 The constitutional arguments were also advanced on ap-
peal. Brooks asserted that even if his relationship could constitute
a sexual offense in Utah, ―he nevertheless has a due process right
and other constitutionally protected rights relating to his rights to
parent his biological child.‖ The point was made even more force-
fully at oral argument, where counsel asserted that ―[t]his case re-
2 Brooks‘s counsel apparently saw this as an opportunity to
sway judicial sympathy in his favor. That was a misjudgment on
his part. This is a court of law. And as judges we decide the cases
that come before us in accordance with the governing provisions
of the law, and not based on our sympathy for one of the parties
or hostility toward another. Blatant attempts to stir bias against an
opponent will often backfire.
4
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Opinion of the Court
ally revolves around . . . whether or not a sex crime . . . obviates
any need whatsoever to give notice and an opportunity to be
heard to an out-of-state biological father,‖ and that denying
Brooks‘s right to intervene ―violates . . . due process‖ because
―none of the parties had any connection whatsoever to Utah.‖
¶13 The briefing on the constitutional implications of section
111 was by no mean robust. But the constitutional question was
presented, and an analysis of that issue aids our analysis of the
threshold statutory question, which is properly preserved and ar-
gued on appeal. We accordingly proceed to the merits.
III
¶14 The threshold question presented is whether Utah Code
section 78B-6-111 applies to the sexual activity between Brooks
and the birth mother of J.M.S. That provision forecloses the paren-
tal rights of a biological father where ―the child who is the subject
of the proceeding was conceived as a result of conduct which
would constitute any sexual offense described in Title 76, Chapter
5, Part 4, regardless of whether the biological father is formally
charged with or convicted of a criminal offense.‖ UTAH CODE §
78B-6-111. The district court denied Brooks‘s motion to intervene
on the ground that his child was ―conceived as a result of conduct
which would constitute‖ a sexual offense under Utah law.
¶15 We reverse on the ground that section 111 does not apply
in this case. This conclusion follows from our analysis in Nevares
v. M.L.S., 2015 UT 34, ¶¶ 27–43, __P.3d__. As we concluded there,
―section 111 is not implicated where, as here, the conduct in ques-
tion could not have ‗constitute[d] a sexual offense‘ under the ref-
erenced part of the Utah code because the activity involved non-
Utahns outside of Utah, and thus could not have sustained a crim-
inal charge under Title 76, Chapter 5, Part 4.‖ Id. ¶ 28 (alteration in
original).
¶16 Our Nevares opinion based that determination on three
grounds: ―(1) the statute‘s ‗regardless‘ clause, which suggests
(when read in light of semantic canons of construction) that all
matters sufficient to sustain a ‗formal[] charge[]‘ or ‗convict[ion]‘
must be established to trigger section 111; (2) the well-settled pre-
sumption against extraterritorial application of statutory provi-
sions, which counsels in favor of limiting section 111 to offenses
committed in Utah even if the statute were silent regarding its ap-
5
IN RE ADOPTION OF J.M.S.
Opinion of the Court
plication to conduct outside of Utah;3 and (3) the canon of consti-
tutional avoidance, which counsels in favor of limiting section 111
to offenses committed in Utah in light of the grave due process
problems4 associated with‖ the contrary construction.5 Id. ¶¶ 30–
46 (alterations in original).
3 The concurrence asserts that section 111 ―is not being applied
extraterritorially‖ because it is ―being applied within the state of
Utah to a Utah adoption proceeding.‖ Infra ¶ 25. But the conclu-
sion does not follow from the premise. Most any question of ex-
traterritoriality arises in a case in which a litigant is seeking to ap-
ply the forum state‘s law to another litigant‘s extraterritorial activ-
ity. See Nevares, 2015 UT 34, ¶ 35 (citing U.S. Bond & Fin. Corp. v.
Nat’l Bldg. & Loan Ass’n of Am., 17 P.2d 238, 239 (Utah 1932) (de-
clining to apply Utah securities laws to ―a contract made and exe-
cuted in another state‖)); Morrison v. Nat’l Austl. Bank Ltd., 561
U.S. 247, 262–65 (2010) (holding that anti-fraud provision of feder-
al securities statute did not apply extraterritorially to case involv-
ing foreign plaintiffs suing foreign and American defendants in
federal court); State v. Reed, 709 P.2d 391, 392 (Utah 1985) (declin-
ing to give extraterritorial effect to Utah sentencing provision re-
garding concurrent sentences in case involving defendant subject
to simultaneous sentence in California). Our holding, moreover,
does not at all foreclose the application of Utah ―adoption stat-
utes‖ to a case involving ―non-resident parents.‖ Infra ¶ 25. In-
stead, as explained in Nevares, Utah adoption law remains intact
and is properly applicable. See Nevares, 2015 UT 34, ¶ 49 & n.19.
We simply construe section 111—a ―law regulating sexual activi-
ty‖—not to apply. Id. ¶ 49. And in its place we conclude that
Pennsylvania law could be invoked, and that Utah adoption law
would govern in all other respects. See id; infra ¶ 18.
4 The dissent misperceives our analysis on this point. We reach
no firm due process holding in Nevares; our point is simply that
the application of section 111 to conduct lacking any jurisdictional
nexus to Utah would introduce serious due process concerns. 2015
UT 34, ¶ 43. Our approach here is identical. Thus, we do not hold
that that the extraterritorial application of section 111 violates the
Due Process Clause, much less that ―the state of Utah may be un-
able to make its own judgment as to whether Mr. Brooks‘s crime
should disqualify him from intervening.‖ Infra ¶ 37 (Durham, J.,
6
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Opinion of the Court
¶17 This analysis suffices to reverse the district court‘s deter-
mination in this case. Because section 111 has no application to
Brooks‘s sexual activity in Pennsylvania, the district court erred in
denying his motion to intervene under this provision.
IV
¶18 We reverse and remand on the basis of the above conclu-
sions. In so doing, we do not hold that Brooks‘s motion should
have been granted. We simply conclude that Utah Code section
78B-6-111 should not be read to foreclose his parental rights. And
because we interpret section 111 not to apply to sexual conduct
lacking any jurisdictional nexus to Utah, we need not and do not
reach the substantive due process question addressed by the dis-
sent. Infra ¶ 33.
¶19 In Nevares, we acknowledged the existence of legal means
other than section 111 for a birth mother or adoptive parent to
seek to terminate a father‘s parental rights on the basis of sexual
misconduct. 2015 UT 34, ¶¶ 48–50. We concluded, specifically,
that the law of the state in which a child was conceived could ap-
ply insofar as it provides for the termination of parental rights of a
dissenting). Our holding is rooted in our interpretation of section
111. We leave for another day the question of the legislature‘s
constitutional authority to dictate the effect of criminal activity on
a father‘s right to intervene. And, as explained below, we identify
provisions of Pennsylvania and Utah law that may operate in cas-
es, like this one, where section 111 is inapplicable. See infra ¶ 18;
Nevares, 2015 UT 34, ¶¶ 48–49 (articulating a choice of law basis
for application of provisions of Utah law and of the state in which
the father‘s sexual activity occurred).
5 The concurrence criticizes our approach—of offering both an
interpretation of the terms of section 111 and a constitutional
avoidance argument as an alternative—as somehow a ―disser-
vice‖ to the ―legal community.‖ Infra ¶ 27. We see it differently.
Alternative arguments have long been a standard convention in
judicial opinions. They often aid in elucidating multiple points
that combine to persuade the court of the basis for its conclusion.
We present them in that spirit here.
7
IN RE ADOPTION OF J.M.S.
Opinion of the Court
father of a child conceived as a result of criminal misconduct.6
Id. ¶¶ 48–49. Here the applicable law would be a Pennsylvania
statute, 23 PA. CONS. STAT. § 2511 (2014). That provision has not
yet been invoked in this case, but we flag it as potentially applica-
ble if the parties should wish to raise it on remand.
¶20 For this reason, we see no basis for the dissent‘s conclusion
that ―Mr. Brooks‘s sexual contact with J.M.S.‘s mother was a seri-
ous felony where it occurred.‖ Infra ¶ 33. Brooks has never been
afforded any due process on that matter. He pled guilty to a lesser
offense in Pennsylvania. But no court has ever determined wheth-
er he committed an offense triggering 23 PA. CONS. STAT. § 2511
(2014). We leave the matter for further proceedings on remand.
And, if the parties raise this question, we note that the matter
would be subject to proof by clear and convincing evidence. See
Santosky v. Kramer, 455 U.S. 745, 756–57 (1982) (requiring proof of
grounds for termination of parental rights by ―clear and convinc-
ing evidence‖).
6 Our holding does not ―ignore[] the weighty interests at stake
for the state of Utah‖ in an adoption proceeding, or foreclose the
possibility of an amendment to section 111 aimed at protecting the
interests identified by the dissent. Infra ¶ 36. Our holding here
and in Nevares is based purely in statutory interpretation. So we
do not foreclose the legislature‘s right to legislate in this important
field. The legislature may make amendments as it sees fit—
subject, of course, to the limitations of the constitution (which we
do not resolve conclusively in these cases).
8
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A.C.J. NEHRING, concurring
¶21 In remanding, we express no view as to the viability of any
challenge raised under the cited Pennsylvania provision. And we
resolve no other issues and express no view as to any other
grounds that respondents may advance in response to Brooks‘s
motion or that may arise in any subsequent proceedings regard-
ing the adoption of the child in question.7
ASSOCIATE CHIEF JUSTICE NEHRING, concurring in judgment:
¶22 I respectfully concur in the judgment only. I disagree
with the majority‘s interpretation of Utah Code section 78B-6-111.
I believe the statute is ambiguous and therefore I would use the
doctrine of constitutional avoidance to hold that section 111 ap-
plies only to conduct committed in-state.
¶23 First, unlike the majority, I do not believe the statute is
elucidated by recourse to the expressio unius est exclusio alterius
canon.8 The majority‘s strained use of that canon makes it abun-
7 See, e.g., UTAH CODE § 78B-6-133(1) (calling for assessment of
―whether proper grounds exist for the termination of . . . [paren-
tal] rights‖ of a person ―whose consent for an adoption is re-
quired‖); id. § 78B-6-133(2)(b), (3) (if parental rights are not termi-
nated, calling for ―an evidentiary hearing to determine who
should have custody of the child‖ based on ―the child‘s best inter-
est,‖ and considering ―evidence of psychological or emotional
bonds that the child has formed with a third person, including the
prospective adoptive parent,‖ and ―any detriment that a change
in custody may cause the child‖); id. § 78B-6-133(5) (noting that a
―custody order entered pursuant to this section may . . . (a) in-
clude provisions for: (i) parent-time; or (ii) visitation by an inter-
ested third party; and (b) provide for the financial support of the
child‖).
8 Because the relevant analysis in the instant case is incorpo-
rated by reference but actually appears in a separate case that also
issued today, Nevares v. M.L.S., 2015 UT 34, __ P.3d.__, I will cite
Nevares throughout. See supra ¶ 15 (―We reverse on the ground
that section 111 does not apply in this case. This conclusion fol-
lows from our analysis in Nevares . . . .‖); see also supra ¶ 16 (sum-
9
IN RE ADOPTION OF J.M.S.
A.C.J. NEHRING, concurring
dantly clear that though antiquated latin maxims are sometimes
―useful guides,‖ they make very ―poor masters‖ and ―should not
be regarded as having any such rigidity as to . . . distort an other-
wise natural meaning or intent.‖9 The statute states that it applies
to “conduct . . . described in [Chapter 5, Part 4 of the Criminal
Code], regardless of whether‖ such conduct is ―formally‖ charged
or results in a ―convict[ion].‖10 The natural reading of this lan-
guage is precisely the opposite of what the majority concludes.11
In other words, the clearest way to read the statute as a whole is to
say that the relevant conduct need not be susceptible to a formal
charge and need not result in a conviction. Surely the legislature
did not add the ―convict[ion]‖ caveat in order to get at innocent
fathers—rather, it seems likely that they added that word to indi-
cate that the provision applies to conduct, separate and independ-
ent of the requirements of criminal procedure. Yet the majority
cites the expressio unius canon to conclude that the ―regardless‖
clause somehow means that the conduct must meet every re-
quirement for a formal charge except that of actually being
marizing and incorporating the Nevares analysis, without addi-
tional explanation).
9 Salt Lake City v. Salt Lake Cnty., 568 P.2d 738, 741 (Utah 1977).
See also BLACK‘S LAW DICTIONARY 661-62 (9th ed. 2009) (―Several
Latin maxims masquerade as rules of interpretation while doing
nothing more than describing results reached by other means.
The best example is probably expressio unius est exclusio alterius,
which is a rather elaborate, mysterious sounding, and anachronis-
tic way of describing the negative implication. Far from being a
rule, it is not even lexicographically accurate, because it is simply not
true, generally, that the mere express conferral of a right or privi-
lege in one kind of situation implies the denial of the equivalent
right or privilege in other kinds. Sometimes it does and some-
times it does not, and whether it does or does not depends on the
particular circumstances of context.‖ (second emphasis added)
(internal quotation marks omitted)).
10 UTAH CODE § 78B-6-111 (emphasis added).
11 See id.; supra ¶ 15; Nevares, 2015 UT 34, ¶ 32.
10
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A.C.J. NEHRING, concurring
charged.12 This seems to me a highly unnatural way to read the
statutory language.
¶24 Canons of construction ―are not formulaic, dispositive
indicators of statutory meaning. They are merely tools that guide
our construction of statutes in accordance with common, ordinary
usage and understanding of language . . . .‖13 The majority em-
ploys expressio unius to read into the statute a requirement that ―all
matters sufficient to sustain a ‗formal[] charge[]‘ or ‗convict[ion]‘
must be established.‖14 I do not agree with that interpretation. I
think the majority has placed more weight on the canon of expres-
sio unius than the concept can reasonably bear. The majority‘s use
of the expressio unius canon forces it to diverge significantly from
the common, ordinary way one would read section 111, and I
cannot agree with that analysis.
¶25 Second, I cannot join the majority in its analysis of the
―presumption against extraterritorial effect.‖15 While there may
be a presumption against applying statutes extraterritorially, Utah
Code section 78B-6-111 is not being applied extraterritorially. It is
being applied within the state of Utah to a Utah adoption pro-
ceeding. The majority‘s reasoning on this point strikes me as both
unpersuasive and deeply concerning. The notion that Utah adop-
tion statutes are applied ―extraterritorially‖ when they are applied
to nonresident parents is dangerous and inaccurate. We have
long held that Utah adoption law properly controls an adoption
within the state and I cannot join the majority‘s suggestion to the
contrary. I also object, generally, to the idea that we should delve
into the supposed ―backdrop‖ against which legislators make
law.16 Unlike the majority in this case and Nevares, I would not
ascribe any ―intuitive sense‖ to the Utah Legislature,17 but would
instead rely on our well-established rules of statutory interpreta-
12 Supra ¶ 16; Nevares, 2015 UT 34, ¶¶ 30–32.
13 Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 19, 248 P.3d 465.
14 Supra ¶ 16 (alterations in original); Nevares, 2015 UT 34, ¶ 30.
15 Nevares, 2015 UT 34, ¶¶ 35–36; supra ¶ 16.
16Nevares, 2015 UT 34, ¶ 36; supra ¶ 16 (incorporating Nevares
analysis).
17 Nevares, 2015 UT 34, ¶ 36.
11
IN RE ADOPTION OF J.M.S.
A.C.J. NEHRING, concurring
tion, chief among which is that the ―best evidence of the legisla-
ture‘s intent is the plain language of the statute itself.‖18
¶26 Mr. Brooks does not directly address whether section
78B-6-111 applies to unwed fathers whose conduct in conceiving a
child occurred outside of Utah, beyond stating that ―Pennsylvania
law should apply‖—a statement that enjoys no ―reasoned analy-
sis‖ or relevant authority,19 but on the basis of which the majority
―deem[s]‖ the issue both ―preserved‖ and ―adequately briefed.‖20
Though Mr. Brooks only barely raised the argument, the majority
notes that ―appellees, in their brief, responded . . . at some
length.‖21 In my view, it is not fair to allow an appellant to
―dump the burden of argument and research‖22 on his opponent
and the court. Though I would reach the question of section 111‘s
applicability as necessary to the resolution of the case, I would not
characterize this issue as preserved23 or adequately briefed, be-
cause it was neither.
18 Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14,
267 P.3d 863 (internal quotation marks omitted).
19 Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 25, 254 P.3d 161
(warning that to ―satisfy our adequate briefing requirement,‖ a
brief ―must go beyond providing conclusory statements and fully
identify, analyze, and cite its legal arguments‖ (internal quotation
marks omitted)).
20 Supra ¶¶ 10–11.
21 Supra ¶ 11.
22 Hess, 2011 UT 22, ¶ 25 (internal quotation marks omitted).
23 See Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (―An
issue is preserved for appeal when it has been presented to the
district court in such a way that the court has an opportunity to
rule on [it].‖ (alteration in original) (internal quotation marks
omitted)). Because Mr. Brooks‘s due process argument was pre-
served, I would hold that we can address the question of Utah
Code section 78B-6-111‘s applicability because it ―bears upon the
ultimate resolution‖ of an issue that has ―properly been pre-
served‖ and is thus ―necessary to a proper decision.‖ Id. ¶¶ 18, 20.
12
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A.C.J. NEHRING, concurring
¶27 I would hold that Utah Code section 78B-6-111 is ambig-
uous. When construing ambiguous statutes, we attempt to ―avoid
interpretations that conflict with relevant constitutional man-
dates.‖24 This is a reflection of our duty to read ―validity, consti-
tutionality and sense‖ into an ambiguous statute, ―if possible.‖25
But we must employ the principle of constitutional avoidance
cautiously. Over-zealous use of constitutional avoidance runs the
risk of trampling on the intent of the legislature. In other words,
―in the guise of judicial restraint the Court ought not to intrude
upon the other branches.‖26 Though a statute may present a seri-
ous constitutional problem, this alone ―ought not to drive [the
court] to an incorrect interpretation of the statute.‖27 Therefore,
the constitutional doubt rule must only be used when a statute is
susceptible to competing constructions that are ―fairly possible.‖28
While I believe this is such a situation, I think the majority‘s use of
the doctrine is inappropriate. The doctrine poses a great risk of
misuse, and should only be employed when the court finds that a
statute is genuinely susceptible to two constructions—but the ma-
jority does not do this. In my view, the majority should first
acknowledge the statute‘s ambiguity and proceed with a constitu-
tional avoidance analysis from there. The majority does the legal
community a disservice by purporting to entertain two conflicting
methods of statutory interpretation.29 The statute is either ambig-
uous or it is not. I believe it is.
24State v. Mooney, 2004 UT 49, ¶ 12, 98 P.3d 420 (internal quota-
tion marks omitted).
25 Munsee v. Munsee, 363 P.2d 71, 85 (Utah 1961); see also Utah
State Rd. Comm’n v. Friberg, 687 P.2d 821, 831 (Utah 1984).
26 Zadvydas v. Davis, 533 U.S. 678, 705 (2001) (Kennedy, J., dis-
senting); Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 24, 332
P.3d 900 (―[F]or the constitutional avoidance canon to even apply,
the statute must be genuinely susceptible to two constructions
. . . .‖ (internal quotation marks omitted)).
27 Zadvydas, 533 U.S. at 705-06 (Kennedy, J., dissenting).
28 Id. at 707 (internal quotation marks omitted).
I fail to see why the court would want to set out multiple
29
mutually-exclusive theories of statutory meaning in order to ―elu-
13
IN RE ADOPTION OF J.M.S.
A.C.J. NEHRING, concurring
¶28 There are two ways of viewing Utah Code section 78B-6-
111. It could be read simply to apply to those who commit con-
duct that meets the elements of any of the twelve listed ―sexual
offenses‖ described in Chapter 5, Part 4, of the Utah Criminal
Code.30 But it could also be read to apply only to conduct that
would actually be capable of prosecution as a crime in Utah. Section
111 states that
[a] biological father is not entitled to notice of an
adoption proceeding, nor is [his] consent . . . required
in cases where it is shown that the child who is the
subject of the proceeding was conceived as a result of
conduct which would constitute any sexual offense de-
scribed in Title 76, Chapter 5, Part 4, regardless of
whether the biological father is formally charged with
or convicted of a criminal offense.31
Here, the word ―would‖—which implies conditionality32—is am-
biguous. The use of ―would‖ could be read to indicate that the
section applies to any father who conceives a child by way of the
conduct listed in Chapter 5, Part 4, wherever it occurs. But the
word ―would‖ might have been included to reflect the fact that
the statute applies to conduct that ―would‖ be a crime ―regard-
less‖ of whether the father were formally charged and convicted
in Utah—and thus the statute might mean that the relevant ―con-
duct‖ must at least be susceptible to formal charges in Utah,
cidat[e] multiple points that combine to persuade the court of the
basis for its conclusion.‖ Supra ¶ 16 n.5. One correct theory is per-
suasive enough. The court should simply ―say what the law is,‖
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)—not provide
three different theories of what the law might be.
30 See UTAH CODE §§ 76-5-401 to -415 (outlining twelve criminal
sexual offenses, including ―unlawful sexual activity with a mi-
nor,‖ ―rape,‖ ―rape of a child,‖ ―object rape,‖ ―forcible sodomy,‖
―forcible sexual abuse,‖ ―aggravated sexual assault‖ and other re-
lated crimes).
31 Id. § 78B-6-111 (emphasis added).
32 WEBSTER‘S THIRD NEW INT‘L DICTIONARY 2637-38 (1961) (de-
fining the word ―would‖ and explaining that it is used ―to express
a contingency or a possibility‖).
14
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A.C.J. NEHRING, concurring
meaning it would have to occur either ―wholly or partly‖ in
Utah.33 In other words, the statutory language can plausibly be
read to apply to either (1) any conduct that simply fits the descrip-
tions contained in Chapter 5, Part 4 of the Utah Criminal Code,
regardless of where that conduct occurred; or (2) conduct that is
actually capable of prosecution as a crime in Utah, meaning con-
duct which was committed wholly or partly in the state of Utah—
regardless of whether the conduct was formally charged.34
¶29 I would hold that Utah Code section 78B-6-111 is ambig-
uous, and would thus proceed under the doctrine of constitution-
al avoidance to conclude that section 111 must be read to apply
only to in-state conduct.35 If Utah Code section 78B-6-111 is read
to apply to conduct that occurs outside of Utah, it poses a serious
constitutional problem. The Due Process Clauses of the Fifth and
Fourteenth Amendments ―impose[] constraints on governmental
decisions which deprive individuals of ‗liberty‘ or ‗property‘ in-
terests.‖36 Individuals have a right to fair notice37 and an oppor-
tunity ―to be heard before being condemned to suffer grievous
loss of any kind.‖38 Moreover, the more important the threatened
interest, the more vigorous the procedural protection that is re-
quired under the law. The loss of one‘s children is one of the most
―grievous‖ losses a person can suffer, and indeed, it is ―plain be-
33UTAH CODE §§ 78B-6-111, 76-1-201. I believe this ambiguity
stems from the phase ―would constitute.‖ As explained, I do not
agree that the expressio unius canon has any relevance here.
34 See UTAH CODE § 76-1-201(5)(c) (explaining that the ―burden
is upon the state to initially establish jurisdiction over [a criminal]
offense . . . by showing . . . the offense was committed either whol-
ly or partly within the borders of the state‖).
35 To that extent, I agree with the majority in this case and Ne-
vares, that a ―serious due process question[] would arise‖ if
Mr. Brooks‘s parental rights were to be forfeited by section 111.
Nevares, 2015 UT 34, ¶ 41; see supra ¶ 16.
36 Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
37 See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950).
38 Mathews, 424 U.S. at 333.
15
IN RE ADOPTION OF J.M.S.
A.C.J. NEHRING, concurring
yond the need for multiple citation‖ that a parent‘s interest in his
or her children is ―far more precious than any property right.‖39
¶30 Because an unwed father‘s act of engaging in sexual
conduct in his home state is almost certainly done without notice
that he will be subject to the adoption laws of another state, I be-
lieve that section 111 poses a serious due process problem if it is
applied to such out-of-state fathers, especially where section 111
simply cuts off the father‘s parental rights. Mr. Brooks, for exam-
ple, committed criminal conduct under Pennsylvania law when
he engaged in sexual intercourse with the child‘s mother; howev-
er, under Pennsylvania law it appears that he may still have been
able to intervene in a subsequent adoption proceeding, despite the
criminal circumstances of the conception.40 Thus, under the law
of Pennsylvania—the only state whose laws he had notice would
be applied to him, Mr. Brooks‘s parental rights were not fore-
closed at the threshold as they would be under section 111 in
Utah. Recognizing the fundamental nature of the parental right, I
would avoid such problems by adopting the second, equally
39 Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quo-
tation marks omitted).
40 See 23 PA. CONS. STAT. § 2711(a) (2014) (stating that ―consent
to an adoption shall be required of . . . [t]he parents or surviving
parent of an adoptee who has not reached the age of 18 years‖); id.
§ 2714 (―Consent of a parent to adoption shall not be required . . .
if, after notice and hearing[,] . . . the court finds that grounds exist
for involuntary termination . . . .‖); id. § 2511(a)(7) (2014) (grounds
for involuntary termination include when ―the parent is the father
of a child conceived as a result of a rape or incest‖); 18 PA. CONS.
STAT. § 3121(a) (2014) (defining rape as sexual intercourse ―by for-
cible compulsion,‖ ―threat of forcible compulsion,‖ or when the
person is unconscious, substantially impaired, or mentally disa-
bled); id § 3122.1(a) (2014) (defining ―[s]tatutory sexual assault‖
and explaining that ―[e]xcept as provided in section 3121 (relating to
rape), a person commits a felony of the second degree when that
person engages in sexual intercourse with a complainant to whom
the person is not married who is under the age of 16 years and
that person is . . . four years older but less than eight years older
than the complainant‖ (emphasis added)).
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A.C.J. NEHRING, concurring
plausible interpretation of section 111 and holding that it applies
only to conduct within Utah.
¶31 I disagree with the majority‘s interpretation of Utah
Code section 78B-6-111. Because I believe the statute is ambigu-
ous, I would analyze it under the doctrine of constitutional avoid-
ance. Accordingly, I respectfully concur in the judgment only.
JUSTICE DURHAM, dissenting:
¶32 As I explained in my concurrence in Nevares v. M.L.S.,
Utah Code section 78B-6-111 applies to all fathers whose paternal
rights are based on a sex crime, regardless of whether they are
subject to Utah‘s criminal jurisdiction. 2015 UT 34, ¶¶ 53–84,
__ P.3d __ (Durham, J., concurring in the result). It therefore ap-
plies to Mr. Brooks.
¶33 However, unlike the conduct of the father in Nevares,
Mr. Brooks‘s sexual contact with J.M.S.‘s mother was a serious
felony where it occurred. 18 PA. CONS. STAT. § 3122.1 (2014) (mak-
ing statutory sexual assault a second-degree felony when the per-
petrator is between four and eleven years older than the victim).
For this reason, he cannot appeal to the same constitutional doc-
trines that protected the father in Nevares. As the Seventh Circuit
explained in Peña v. Mattox,
[N]o court has gone so far as to hold that the mere
fact of fatherhood, consequent upon a criminal act
. . . [and] not cemented . . . by association with the
child, creates an interest that the Constitution pro-
tects in the name of liberty. . . . The criminal does not
acquire constitutional rights by his crime other than
the procedural rights that the Constitution confers
on criminal defendants.
84 F.3d 894, 900 (7th Cir. 1996). Thus, denying Mr. Brooks the
right to contest J.M.S.‘s adoption does not infringe any of his con-
stitutionally protected liberties and, therefore, does not violate the
Due Process Clause.
¶34 The majority disagrees, suggesting that it may violate the
Due Process Clause for Utah‘s criminal law to punish Mr. Brooks
17
IN RE ADOPTION OF J.M.S.
J. DURHAM, dissenting
for the sexual assault he committed in Pennsylvania. Supra ¶ 16 &
nn.3–5. This is correct and entirely sensible. Criminalizing
Mr. Brooks‘s conduct, and punishing it, involved a host of diffi-
cult policy decisions: where to set the age limits on statutory rape,
what penalty statutory rape should carry, whether people in
Mr. Brooks‘s circumstances should be prosecuted, and what sort
of plea deals they should be offered. Because Mr. Brooks‘s crime
took place in Pennsylvania and affected—at the time—primarily
citizens of Pennsylvania, these policy decisions rightfully belong
to Pennsylvania.
¶35 But we are not deciding whether Mr. Brooks should be
punished for the sexual assault he committed in Pennsylvania. Ra-
ther, we are deciding whether Mr. Brooks has a right to contest
J.M.S.‘s adoption, and this decision involves a very different set of
policy questions. Should a father like Mr. Brooks be barred from
contesting an adoption because of any sexual offense, or merely
because of a violent one? Should an actual conviction be required
to foreclose his rights, or is it sufficient for the adoption court to
find, by clear and convincing evidence, that his paternal rights
rest on criminal conduct? What if he is convicted of a misdemean-
or on a plea bargain, as Mr. Brooks was here, but the undisputed
facts clearly satisfy the elements of a serious felony?
¶36 The majority seems to suggest that, as a matter of consti-
tutional law, all of these policy decisions must belong to Pennsyl-
vania because that is where Mr. Brooks committed his crime. But
in doing so, it ignores the weighty interests at stake for the state of
Utah. Usually, a father like Mr. Brooks will be just one of four par-
ties whose lives would be forever changed by an adoption: the fa-
ther, the mother, the would-be adoptive parents, and the child. At
the time of the adoption proceedings, at least two of these par-
ties—the adoptive parents and the child—will usually be citizens
of Utah, and frequently the child‘s mother will have become a
Utah citizen as well. Further, the adoption proceedings will be
taking place in a Utah court, and they will usually involve a Utah
adoption agency that also has an interest in the outcome.
¶37 But according to the majority, despite the immense im-
portance of this adoption to these Utahns, the state of Utah may
be unable to make its own judgment as to whether Mr. Brooks‘s
crime should disqualify him from intervening. Rather, it must
simply accept the judgment of the Commonwealth of Pennsylva-
18
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J. DURHAM, dissenting
nia—no matter how repugnant that judgment might be to the
people of Utah, and no matter that Pennsylvania has no more ju-
risdiction over the adoption of J.M.S. than Utah had over the
prosecution of Jacob Brooks.
¶38 The legislature‘s manifest intent in section 111 was to pro-
tect people like J.M.S. and J.M.S.‘s mother from fathers like
Mr. Brooks. If Mr. Brooks had a constitutionally protected liberty
at stake, the Due Process Clause would restrict the legislature‘s
ability to carry out its intent—procedural due process would
guarantee Mr. Brooks notice and a hearing, and substantive due
process would limit the legislature‘s power to cut off his paternal
rights. But Mr. Brooks has no such liberty at stake, so nothing
prevents the legislature‘s will from being carried out. Mr. Brooks
should be barred from intervening in this adoption.
19