State v. Canton

This opinion is subject to revision before final
publication in the Pacific Reporter.
2013 UT 44IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
STATE OF UTAH,
Plaintiff and Appellee,
v.
REINALDO CANTON,
Defendant and Appellant.
———————
No. 20110835
Filed July 23, 2013
———————
Third District, Salt Lake
The Honorable Robin W. Reese
No. 09190587
———————
Attorneys:
John E. Swallow, Att‘y Gen., John J. Nielsen, Asst. Att‘y Gen.,
Salt Lake City, for appellee
Peter Daines, Salt Lake City, for appellant
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
———————
JUSTICE LEE, opinion of the Court:
¶1 Reinaldo Canton was arrested in Utah in April 2007 and
indicted on federal charges of coercion and enticement of a fif-
teen–year-old girl. Canton, a New Mexico resident, was released
and returned to New Mexico to await trial. He remained there
pending trial for over two years, though he returned to Utah on a
few occasions to attend proceedings in federal court. After the
federal charges were dismissed in May 2009, Canton was charged
by the State of Utah with enticement of a minor under Utah Code
section 76-4-401.
¶2 Canton moved to dismiss the charge based on the applica-
ble two-year statute of limitations. In so doing, he disputed the
applicability of our criminal tolling statute, which tolls the limita-
STATE v. CANTON
Opinion of the Court
tions period while a criminal defendant is ―out of the state.‖ See
UTAH CODE § 76-1-304(1). In Canton‘s view, this provision was
inapplicable because he was ―legally present‖ in Utah during the
course of the federal court proceedings, in that he cooperated with
federal authorities and appeared in various proceedings in the
federal district court. Canton argued in the alternative that appli-
cation of the tolling provision violated the Uniform Operation of
Laws provision of the Utah Constitution. The district court denied
Canton‘s motion. Canton filed this appeal.
¶3 We affirm. The criminal tolling statute applies to Canton
because its text leaves no room for his notion of ―legal presence.‖
And applying the statute to Canton does not run afoul of the Uni-
form Operation Clause, as Canton fails to show how any classifi-
cation under the statute discriminates against him in an imper-
missible manner.
I
¶4 In March 2007, Reinaldo Canton, a New Mexico resident,
began corresponding online with an undercover federal agent
posing as a fifteen-year-old girl. Canton engaged the agent in sex-
ually-explicit conversation and ultimately arranged to meet the
―girl‖ for sex at the Layton Hills Mall in Utah. When Canton ar-
rived at the mall on April 11, 2007, FBI agents and representatives
of the Utah Internet Crimes Against Children Task Force arrested
Canton. Soon thereafter, federal officials charged Canton with co-
ercion and enticement for illegal sexual activity under 18 U.S.C.
§ 2422(b). On April 19, 2007, a federal magistrate in Utah released
Canton and allowed him to return to New Mexico to await trial on
the federal charges.
¶5 During the course of the next fifteen months, federal offi-
cials in New Mexico monitored Canton and reported to their
counterparts in Utah. Canton cooperated with the investigation
against him and traveled several times from New Mexico to Utah
to attend proceedings in federal district court. On July 29, 2008,
Canton suffered an aortic dissection (a tear in a large blood vessel
branching off of the heart), which required surgical intervention.
Thereafter, Canton claimed he was too ill to continue traveling to
Utah and filed a motion to dismiss based on his deteriorating
health. The federal court granted this motion without prejudice on
May 14, 2009.
2
Cite as: 2013 UT 44Opinion of the Court
¶6 Less than two months later, on June 30, 2009, the State of
Utah charged Canton with enticement of a minor under Utah
Code section 76-4-401. The state charge was based on the same
2007 conduct that led to the filing of federal charges.
¶7 Canton moved to dismiss under the two-year statute of
limitations applicable to the enticement charge, Utah Code section
76-1-302. The district court denied the motion, concluding that the
limitations period had been tolled under Utah Code section 76-1-
304(1) because Canton had been ―out of the state‖ in New Mexico
during the course of the federal prosecution against him. In deny-
ing the motion, the district court rejected Canton‘s assertion that
his ―legal presence‖ in Utah foreclosed application of the tolling
provision. It also upheld the applicability of that provision against
Canton‘s challenge under the Uniform Operation Clause of the
Utah Constitution. Canton entered a conditional guilty plea, re-
serving his right to challenge the application of the tolling statute
on appeal.
II
¶8 Canton contends that the district court erred in applying
our criminal tolling provision, which tolls the statute of limita-
tions while a criminal defendant is ―out of the state,‖ see UTAH
CODE § 76-1-304(1). While Canton concedes that he was in New
Mexico during the course of the federal prosecution, he offers two
grounds for overcoming the tolling provision. He first asserts that
the tolling statute is inapplicable as long as a defendant maintains
a ―legal presence‖ within the state. In the alternative, he argues
that application of the tolling provision violates the ―uniform op-
eration‖ of laws provision in article I, section 24 of the Utah Con-
stitution.
¶9 Both points turn on questions of law, which we review for
correctness. See Manzanares v. Byington (In re Adoption of Baby B.),
2012 UT 35, ¶ 41, __ P.3d __. We reject both of Canton‘s argu-
ments and accordingly affirm.
A. Statutory Construction of ―Out of the State‖
¶10 Under our criminal tolling statute, ―[t]he period of limita-
tion does not run against any defendant during any period of time
in which the defendant is out of the state following the commis-
sion of an offense.‖ UTAH CODE § 76-1-304(1). The question before
us concerns the meaning of the phrase ―out of the state.‖ Both
3
STATE v. CANTON
Opinion of the Court
sides agree that Canton was physically ―out of the state‖ (in New
Mexico) for most of the two years in which the limitations period
is claimed to have run. Yet they disagree about the significance of
that fact.
¶11 For the State, Canton‘s physical presence in New Mexico is
dispositive, as it reads ―out of the state‖ to refer to a defendant‘s
absence from the state‘s territorial boundaries. Canton sees the
matter differently. He interprets ―out of the state‖ to refer to a
more abstract construct. In his view a person is not ―out of the
state‖ if he is subject to its legal authority—in the sense of cooper-
ating with federal officials investigating criminal charges in Utah
and appearing at federal court proceedings there. Thus, for Can-
ton the notion of ―out of the state‖ refers not to the state‘s physical
boundaries but its sovereign power. For him a person is not ―out
of the state‖ if he remains subject to its sovereign authority.
¶12 We read the statute as the State does. We interpret ―out of
the state‖ to focus on the question of a person‘s physical presence
within the state‘s territorial boundaries. Thus, we reject Canton‘s
abstract construct of legal presence, both as a matter of (a) the ―or-
dinary meaning‖ of statutory language consisting of ―common,
daily, nontechnical speech,‖ Olsen v. Eagle Mountain City, 2011 UT
10, ¶ 9, 248 P.3d 465 (internal quotation marks omitted), and (b)
under the possibility that the statute may employ a ―legal term of
art . . . with a settled meaning in the law,‖ Hansen v. Hansen, 2012
UT 9, ¶ 19, 270 P.3d 531.
1. Ordinary Meaning of ―Out of the State‖
¶13 In determining the ordinary meaning of nontechnical terms
of a statute, our ―starting point‖ is the dictionary. See Hi-Country
Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 19, __ P.3d __. ―A dic-
tionary is useful in cataloging a range of possible meanings that a
statutory term may bear.‖ Id. (citing HENRY M. HART, JR., ALBERT
M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING
AND APPLICATION OF LAW 1375–76 (William N. Eskridge, Jr. &
Phillip P. Frickey eds., 1994) [hereinafter HART & SACKS]). ―It pro-
vides ‗an historical record, not necessarily all-inclusive, of the
meanings which words in fact have borne.‘‖ Id. (quoting HART &
SACKS, at 1190). ―Such a record, however, will often fail to dictate
‗what meaning a word must bear in a particular context.‘‖ Id.(quoting HART & SACKS, at 1190). ―That question will often require
4
Cite as: 2013 UT 44Opinion of the Court
further refinement—of selecting the best meaning among a range
of options, based on other indicators of meaning . . . .‖ Id.¶14 This is one of those cases where the dictionary fails to dic-
tate the meaning that the statutory terms ―must bear‖ in this con-
text. The operative phrase has two component parts—a function
term (―out of‖) and its object (―the state‖). And dictionary defini-
tions of both sets of terms leave the statute semantically open to
both parties‘ interpretations.
¶15 The phrase ―out of‖ is used ―as a function word‖ in a range
of different senses. WEBSTER‘S THIRD NEW INTERNATIONAL
DICTIONARY 1603 (2002). One sense ―indicate[s] direction or
movement from an enclosed space to the outside,‖ or ―direction,
motion, or distance from a . . . starting point.‖ Id. To illustrate this
meaning, the dictionary lists examples of a child who ―fell out of
the crib,‖ a person who ―took his hands out of his pockets,‖ or one
who ―hit the ball out of the park.‖ Id. This sense of ―out of‖ seems
in line with the State‘s construction of the tolling statute. It con-
notes relational movement from a certain baseline, typically a
physical one.
¶16 That said, this definition does not exclude the possibility of
a metaphysical ―space‖ or ―starting point‖ from which something
moves ―out of.‖ And some common uses of the phrase unques-
tionably have an abstract referent. An argument can be ―out of
bounds‖ by dint of its exceeding the governing rules of propriety
and not any physical boundary, just as a technical advancement
can be ―out of this world‖ in a figurative sense without the assis-
tance of space travel. So this dictionary meaning of ―out of‖ is it-
self insufficient to resolve the interpretive question before us.
¶17 And the dictionary also includes another definition that is
more clearly in line with Canton‘s position. ―Out of‖ is also used
―as a function word to indicate removal or situation away from
the effective action of some faculty or agency.‖ Id. Here, moreo-
ver, the listed examples expressly encompass ―removal‖ from an
abstract ―faculty or agency,‖ as in ―the ships fled out of range,‖ ―he
was soon out of sight,‖ and ―out of hearing.‖ Id. Thus, the diction-
ary‘s range of meanings for ―out of‖ give no basis for limiting the
statutory phrase to either physical or abstract absence; both con-
structs fall within standard dictionary definitions.
5
STATE v. CANTON
Opinion of the Court
¶18 Dictionary definitions of ―the state‖ are similarly indeter-
minate. The referenced ―state‖ could certainly be the physical ter-
ritory of the State of Utah, marked by its legal borders. Id. at 2228
(defining ―state‖ to include ―a territory‖ governed by a particular
nation or sovereign). But the ―state‖ is also defined as an abstract
authority—as in ―the operations, activities, or affairs of the gov-
ernment or ruling power of a country: the sphere of administra-
tion and supreme political power of a government,‖ or ―the em-
bodiment of the ethical idea and the moral will of the communi-
ty.‖ Id.
¶19 The State‘s notion of ―out of the state‖ partakes of the first
definition listed above. A person can be said to be ―out of the
state‖ in the sense of being physically outside of its territorial
boundaries. But the latter definitions are in line with Canton‘s
construction. A person could be said to be ―out of the state‖ in the
sense of being removed from its political power or sphere of in-
fluence.
¶20 Dictionaries are accordingly insufficient by themselves to
resolve the interpretive task before us. We must look elsewhere to
determine the ordinary meaning of the language of the tolling
statute. Specifically, we must look beyond the dictionary defini-
tions of the component terms of the statute to consider the ordi-
nary meaning of the complete statutory phrase, ―out of the state.‖1
1 See John F. Manning, The Eleventh Amendment and the Reading of
Precise Constitutional Texts, 113 YALE L.J. 1663, 1704 (2004) (―[O]ne
can properly attribute to legislators the reasonable minimum in-
tention ‗to say what one would ordinarily be understood as say-
ing, given the circumstances in which it is said.‘ This principle, it
should be noted, does not direct interpreters to follow the literal
or dictionary meaning of word or phrase. To the contrary, it de-
mands careful attention to the nuances and specialized connota-
tions that speakers of the relevant language attach to particular
words and phrases in the context in which they are being used.‖
(internal quotation marks omitted)); Cabell v. Markham, 148 F.2d
737, 739 (2d Cir. 1945) (L. Hand, J.) (―Of course it is true that the
words used, even in their literal sense, are the primary, and ordi-
narily the most reliable, source of interpreting the meaning of any
writing: be it a statute, a contract, or anything else. But it is one of
6
Cite as: 2013 UT 44Opinion of the Court
¶21 A first resort for selecting among a range of meanings left
open by the dictionary is the structure and context of the statutory
language. See Olsen, 2011 UT 10, ¶ 12. In Olsen we interpreted the
terms of Utah Code section 63G-7-202, a provision calling for re-
imbursement of attorney fees incurred by a government employee
when the request is ―filed in the manner‖ provided in other sec-
tions of the code. Id. ¶ 6. We noted that dictionary definitions of
―manner‖ encompassed both of the alternative constructions prof-
fered by the parties—that under ―[c]ommon dictionary definitions
of the term ‗manner‘ arguably could encompass just the form of an
employee‘s written request,‖ or the term ―could be construed . . .
to encompass the timing requirements set forth in‖ the code. Id.
¶ 12 (footnote omitted). Yet we explained that ―[t]he fact that the
statutory language may be susceptible of multiple meanings does
not render it ambiguous,‖ as ―‗all but one of the meanings is ordi-
narily eliminated by context.‘‖ Id. ¶ 13 (quoting Deal v. United
States, 508 U.S. 129, 131–32 (1993). And in Olsen we found that one
of the meanings of ―manner‖ was eliminated by the context of sec-
tion 63G-7-202, as the latter notion of ―manner‖ could not be
adopted ―without undercutting the express language‖ of the stat-
ute. Id. ¶ 18. So we adopted the former notion of ―manner‖ as the
one ―more consistent with the language and structure of the statu-
tory scheme.‖ Id.
¶22 Canton purports to find a parallel ground for his construc-
tion of our criminal tolling statute. He insists that the State‘s no-
tion of physical presence ―contradicts the legislative purpose of
the statute,‖ which in his view is to preserve the ―balance between
an individual‘s interest in repose and the State‘s interest in having
sufficient time to build its case.‖ And in light of his full coopera-
tion with federal authorities during the pendency of the federal
case against him here, Canton insists that the State‘s side of the
ledger was a null set, as the State had ―sufficient time to investi-
gate its case and file charges, notwithstanding [his] absence from
the state.‖ Thus, Canton asks us to dismiss the State‘s construction
as incompatible with the purpose of the criminal tolling provision
as he sees it.
the surest indexes of a mature and developed jurisprudence not to
make a fortress out of the dictionary . . . .‖).
7
STATE v. CANTON
Opinion of the Court
¶23 Canton‘s position falters in its premise. The tolling statute,
like most legislative enactments, is multi-dimensional in its pur-
pose. See VCS, Inc. v. Utah Cmty. Bank, 2012 UT 89, ¶ 20, 293 P.3d
290 (dismissing a legislative purpose argument as a ―vast over-
simplification,‖ noting that ―most legislation . . . is not aimed at
advancing a single objective at the expense of all others, but in-
stead is a result of a legislative give-and-take that balances multi-
ple concerns‖ (internal quotation marks omitted)). Undoubtedly it
is aimed at balancing the concerns that Canton identifies. But it
also implicates other considerations, chief among them a concern
for certainty.2
¶24 Certainty is at a premium in this area. The time-preclusive
effect of a statute of limitations is strong medicine. It cuts off a
presumptively viable claim on the sole basis of the passage of
time. Thus, our statute of limitations jurisprudence is aimed not
only at balancing repose on one hand and an opportunity to pre-
pare a case for filing on the other, but also at fostering certainty
and avoiding unfair surprise.3 The tolling statute must also be
understood to advance that concern. And that concern is ad-
vanced by the State‘s objective notion of physical presence—and
undercut by Canton‘s more abstract construct—in that the latter
approach would require subjective, case-by-case weighing of fac-
tors informing the degree to which an individual may be ―pre-
sent‖ in the state in the sense of being subject to its authority. For
these and other reasons,4 we cannot properly reject the State‘s po-
2 See Jacobs v. Hafen, 917 P.2d 1078, 1081 (Utah 1996) (explaining
that a statute of limitations ―must be fixed so that parties can or-
der their affairs with predictability,‖ and that ―parties need a time
certain within which they can assert their ownership rights‖).
3 Id.; see also Johnson v. Nedeff, 452 S.E.2d 63, 67–68 (W. Va. 1994)
(rejecting a request to read an equitable exception into a statute of
limitations because ―[d]efendants have a right to rely on the cer-
tainty the statute provides, and adoption of the rule plaintiff urges
would destroy that certainty,‖ which would be out of keeping
with ―the legislative intent underlying such provisions‖).
4 Canton‘s argument also fails even under the more narrow stat-
utory purpose that he identifies. The State may have had suffi-
cient time to investigate and press charges during the pendency of
the federal charges. But that does not exhaust its legitimate law-
enforcement interest in considering charges against an out-of-state
8
Cite as: 2013 UT 44Opinion of the Court
sition—or endorse Canton‘s—on the ground that only Canton‘s
advances the purpose of the criminal tolling statute.
¶25 We must accordingly look elsewhere to select from the
range of meanings left open by the dictionary. Here we can do so
by moving beyond the component terms of the statute—―out of‖
and ―state‖—and considering the full phrase in its entirety. See
FCC v. AT&T, Inc., 131 S.Ct. 1177, 1183 (2011) (noting that ―two
words together may assume a more particular meaning than those
words in isolation‖).
¶26 Dictionaries typically define only individual words, not ex-
tended phrases. So we cannot look up ―out of the state‖ in a dic-
tionary. But that does not foreclose the possibility of identifying
its ordinary meaning. We can do so by considering the way the
full phrase is typically used in common parlance.5
defendant subject to pending federal charges. State officials could
rationally determine to await the outcome of the federal prosecu-
tion to decide whether to pursue parallel state charges—as an out-
of-state defendant could be seen as a lesser threat than an in-state
one, particularly in circumstances where the anticipated federal
penalty might effectively vindicate the state‘s concerns for pro-
tecting the interests of its citizens.
5 See Carranza v. United States, 2011 UT 80, ¶ 24, 267 P.3d 912(plurality opinion of Lee, J., joined by Durrant, J.) (interpreting
―minor child‖ in Utah Code section 78-11-6 to include a fetus
based, in part, on the fact that ―the term ‗child‘ is used extensively
in the popular press to refer to the unborn‖); id. ¶ 35 (dissenting
opinion of Nehring, J.) (asserting the need for ―caution against
overreliance on dictionaries‖ and asserting that ―since 1851, the
term ‗minor child‘ has appeared in the pages of the [New York]
Times 2,866 times without ever referring to a fetus‖); see also Mus-
carello v. United States, 524 U.S. 125, 129 (1998) (interpreting federal
sentencing enhancement for one who ―carries a firearm‖ in rela-
tion to a drug trafficking crime, 18 U.S.C. § 924(c)(1), in light of
results of online search of ―computerized newspaper databases,‖
which included ―thousands of . . . sentences‖ using the phrase to
―convey the meaning at issue here, i.e., the carrying of guns in a
car‖); United States v. Costello, 666 F.3d 1040, 1044 (7th Cir. 2012)
(interpreting the crime of ―habor[ing]‖ an illegal alien under 8
U.S.C. § 1324(a)(1)(A)(iii) in light of results of a Google search of
9
STATE v. CANTON
Opinion of the Court
¶27 Here that inquiry confirms the State‘s construction of the
tolling statute and rules out Canton‘s. When the phrase ―out of
the state‖ is used in its full context, it refers to the physical territo-
ry of a state, not its political power or influence.6 So although Can-
ton‘s construction is semantically plausible based on dictionary
definitions of ―out of‖ and ―the state,‖ it cannot be reconciled with
the uniform understanding of the extended statutory phrase ―out
of the state.‖ That phrase is not used in the way that Canton con-
strues it, and we reject it on that ground.
2. ―Out of the State‖ as a Legal Term of Art?
¶28 That leaves the question whether the tolling statute‘s lan-
guage may consist of a legal term of art. The legislature is entitled
to invoke specialized legal terms that carry an extra-ordinary
meaning. And when it does so we credit the legal term of art, not
the common understanding of the words. See Hansen, 2012 UT 9,
¶ 19. Thus, ―when a word or phrase is ‗transplanted from another
legal source, whether the common law or other legislation, it
brings the old soil with it.‘‖ Maxfield v. Herbert, 2012 UT 44, ¶ 31,
284 P.3d 647 (quoting Felix Frankfurter, Some Reflections on the
Reading of Statutes, 47 COLUM. L. REV. 527, 537 (1947)). Canton
reads the criminal tolling provision to incorporate a term of art
―transplant‖ from our caselaw. Citing cases decided under our
civil tolling statutes, Snyder v. Clune, 390 P.2d 915 (Utah 1964);
Lund v. Hall, 938 P.2d 285 (Utah 1997), he asserts that our law has
adopted a principle of ―legal‖ presence for tolling purposes—a
the term ―harboring‖ in connection with terms like ―fugitives‖
and ―refugees,‖ and noting that the results show that the word as
―actually used‖ in this context ―has a connotation . . . of deliber-
ately safeguarding members of a specified group from the author-
ities‖).
6 This conclusion is based on results of a Google News search,
http://news.google.com, considering 150 instances in which the
phrase ―out of the state‖ was used in news stories published in
May 2013—27 of which involved references to the relationship be-
tween a person and the state. Not one of those 27 relevant refer-
ences use ―out of the state‖ in a manner involving absence of a
person from the legal authority or influence of a state. Every sin-
gle one of them makes unequivocal reference to the physical con-
fines of a state.
10
Cite as: 2013 UT 44Opinion of the Court
principle purportedly incorporated by reference in the criminal
tolling provision at issue here.
¶29 Canton reads too much into Snyder and Lund—and not
enough into the operative text of the criminal tolling statute.
Snyder, to be sure, interpreted the text of the civil tolling provision
in light of the ―objective of the statute‖—of ―prevent[ing] a de-
fendant from depriving a plaintiff of the opportunity of suing him
by absenting himself from the state during the period of limita-
tion.‖ 390 P.2d at 916. And in light of that purpose the Snyder
court held that a nonresident motorist defendant who had by law
appointed the Secretary of State as his agent for service of process
was ―not ‗absent‘ from the state in the sense contemplated‖ by the
civil tolling statute. Id. (quoting the 1953 version of the civil tolling
provision, UTAH CODE § 78-12-35, in light of the nonresident mo-
torist act, UTAH CODE § 41-12-8); see also Lund, 938 P.2d at 289 (in-
terpreting the then-applicable civil tolling statute, UTAH CODE
§ 78-12-35, in light of the nonresident motor vehicle act, UTAH
CODE 41-12a-505). But Snyder and Lund do not evidence a firmly
rooted, omnibus notion of legal absence in our statute of limita-
tions jurisprudence. As we explained in Olseth v. Larsen, 2007 UT
29, 158 P.3d 532, these cases are based on a narrow construction of
the unique terms of the civil tolling statute in a narrow band of
cases (under the Nonresident Motor Vehicle Act). Id. ¶¶ 29–36.
¶30 Olseth considered a question certified to us by the Tenth
Circuit Court of Appeals: ―Is the statute of limitations tolled un-
der [the general civil tolling statute] when a person against whom
a claim has accrued has left the state of Utah and has no agent
within the state of Utah upon whom service of process can be
made instead, but the person is amenable to service pursuant to
Utah‘s long arm statute[?]‖ Id. ¶ 1. We held that the statute was
tolled, and in so doing rejected the invitation to adopt a broad
reading of Snyder and Lund.
¶31 Our Olseth opinion emphasized that Snyder and Lund were
driven by the terms of the Nonresident Motor Vehicle Act—
specifically, by the provision calling for appointment of the Secre-
tary of State as agent of a nonresident motorist for service of pro-
cess. Id. ¶¶ 29–36. Thus, in Olseth we explained that ―the defend-
ants in th[o]se cases [were] not ‗absent‘ from the state because
their agent [was] present and service [could] be effected within the
state.‖ Id. ¶ 29 (emphasis added). At the same time, we declined
11
STATE v. CANTON
Opinion of the Court
to extend this principle to other cases (not implicating the Nonres-
ident Motor Vehicle Act). For ―cases not involving a statutorily
appointed agent, or not involving an agent within Utah,‖ we
adopted a notion of physical (not legal) presence; we held that ―an
out-of-state defendant is deemed ‗absent‘ from the state and the
tolling statute tolls the applicable statute of limitations.‖ Id.
¶32 Olseth thus disproves the term-of-art notion of legal pres-
ence advocated by Canton. It indicates that we do not have an
omnibus rule tying tolling to a person‘s susceptibility to service of
process. And it also defeats Canton‘s position in this case, as Can-
ton does not and cannot contend that he had an agent for service
of process in Utah—only that he was loosely subject to the author-
ity of the State as evidenced by his cooperation in the federal pro-
ceedings against him. That is insufficient under our law, which
leaves no room for the construction that Canton attributes to the
criminal tolling provision.
B. Constitutionality of the Tolling Statute
¶33 Our only remaining task is to consider Canton‘s challenge
to the constitutionality of the tolling statute‘s application in this
case. His challenge arises under article I, section 24 of the Utah
Constitution, the Uniform Operation Clause.
¶34 That clause requires that ―[a]ll laws of a general nature
shall have uniform operation.‖ UTAH CONST. art I, § 24. Historical-
ly, uniform operation provisions were understood to be aimed not
at legislative classification but at practical operation.7 Thus, at the
7 See G. ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS 197–
99 (1998) (explaining that uniform operation provisions were not
understood historically as ―miniature equal protection clauses‖
regulating legislative classifications, but as protection against the
―creation of special privileges or exemptions‖ in the operation or
application of general laws); ROBERT F. WILLIAMS, THE LAW OF
AMERICAN STATE CONSTITUTIONS 209–13 (2009) (noting that uni-
form operation clauses originally reflected an ―opposition to fa-
voritism and special treatment for the powerful,‖ and explaining
that ―[a]lthough these provisions may seem to overlap somewhat
with federal equal protection doctrine, closer scrutiny reveals sig-
nificant differences,‖ in that such state provisions do ―not seek
12
Cite as: 2013 UT 44Opinion of the Court
time of the ratification of the Utah Constitution, parallel provi-
sions in other state constitutions were not viewed as a limit on the
sorts of classifications that a legislative body could draw in the
first instance, but as a rule of uniformity in the actual application
of such classifications—a requirement of consistency in applica-
tion of the law to those falling within the classifications adopted
by the legislature, or in other words a prohibition on special privi-
leges or exemptions therefrom.8
¶35 The modern formulation of uniform operation is different.
It treats the requirement of uniform operation as a state-law coun-
terpart to the federal Equal Protection Clause. Our cases articulate
a three-step test for enforcing this guarantee. First we assess
―what classifications the statute creates.‖ See State v. Angilau, 2011
UT 3, ¶ 21, 245 P.3d 745. We then assess ―whether different classes
. . . are treated disparately.‖ Id. (alteration in original) (internal
quotation marks omitted). And finally, ―if there is disparate
treatment between classes,‖ we assess ―whether the legislature
had any reasonable objective that warrants the disparity.‖ Id. (in-
ternal quotation marks omitted).
¶36 This last step incorporates varying standards of scrutiny.
See State v. Robinson, 2011 UT 30, ¶ 22, 254 P.3d 183. Those stand-
ards recognize that most classifications are presumptively permis-
sible, and thus subject only to ―rational basis review.‖ Id. Our
equal protection of the laws‖ but rather guard against ―discrimi-
nation in favor of a minority‖).
8 See, e.g., People ex rel. Smith v. Judge of The Twelfth Dist., 17 Cal.
547, 554–56, 563 (1861) (upholding a law against a challenge under
a constitutional provision identical to Article I, Section 24 of the
Utah Constitution even though that law created a category of one,
explaining that the ―expression . . . that . . . laws of a general na-
ture shall be uniform in their operation‖ only extended to ―persons
standing in the same category‖ (internal quotation marks omit-
ted)); Driggs v. State, 38 N.E. 882, 884 (Ohio 1894) (explaining, un-
der Ohio‘s Uniform Operation Clause, that a law‘s ―uniformity
consists in the fact that no person or thing of the description of
any person or thing affected by it is exempt from its operation,‖
since uniformity concerns the law‘s ―operation upon the persons
or things of any class upon whom or which it purports to take ef-
fect‖ (internal quotation marks omitted)).
13
STATE v. CANTON
Opinion of the Court
standards of scrutiny also recognize, however, that other classifi-
cations are so generally problematic (and so unlikely to be reason-
able) that they trigger heightened scrutiny. Id. (noting that dis-
crimination on the basis of a ―suspect class‖ (e.g., race or gender)
triggers heightened scrutiny, as do classifications implicating
―fundamental right[s]‖).9
¶37 Canton presents no viable constitutional challenge to the
application of the tolling provision to this case. The historical re-
quirement of consistent application or enforcement (or its con-
comitant bar on special privileges or exemptions) is not at all im-
plicated here, as Canton‘s gripe is that the statute sweeps too
broadly—in encompassing defendants who are ―out of the state‖
physically but still subject to its authority (and thus purportedly
outside the rational reach of the tolling statute). That concern, in
fact, runs precisely counter to that of the historical domain of uni-
form operation, which was to prescribe broad, uniform applica-
tion across the entirety of a legislative class, or in other words to
foreclose special privileges or exemptions from enforcement. And
Canton‘s claim is similarly deficient under the modern formula-
tion of uniform operation set forth in our caselaw, as he fails to
9 In formulating the applicable standards of scrutiny, our cases
generally incorporate principles from the federal equal protection
regime, see, e.g., Blue Cross & Blue Shield of Utah v. State, 779 P.2d
634, 637 (Utah 1989), while reserving the right to depart from
those standards in an appropriate case in the future, see, e.g., State
v. Drej, 2010 UT 35, ¶ 33, 233 P.3d 476. Yet our precedent to date
has offered little basis or explanation for the extent of any differ-
ence between the federal equal protection guarantee and the state
requirement of uniform operation. And the parties herein have
not ventured anything along those lines in their briefs. So we have
no occasion here to elaborate on any difference between the feder-
al equal protection and state uniform operation provisions. See
State v. Arguelles, 2003 UT 1, ¶ 123 n.26, 63 P.3d 731 (declining to
break new constitutional ground on the issue of whether the
―Utah Constitution requires the exclusion of victim impact evi-
dence‖ because the litigant did no more than ―restate[] argu-
ments‖ from an earlier case, where the court had declined to con-
sider the issue ―because the briefs inadequately presented any ar-
guments supporting [the] assertion‖).
14
Cite as: 2013 UT 44Opinion of the Court
attack the only classification drawn by the tolling statute (between
those who leave the state after committing a crime and those who
remain within it), and takes issue instead with the statute‘s failure
to draw additional or different classifications.
¶38 Canton‘s gripe is with the legislature‘s failure to sub-
classify—to draw further distinctions between compliant and
non-compliant out-of-state defendants. He asserts that these two
sub-classes are fundamentally different, and thus that it is uncon-
stitutional to treat them similarly.
¶39 That is not a viable, standalone basis for a uniform opera-
tion challenge. Our uniform operation standards are focused on
examining the rationality of the classifications that were made by
the legislature. See Angilau, 2011 UT 3, ¶ 21 (explaining that we
begin by asking ―what classifications the statute creates‖). And
concerns of over-inclusiveness, like the one raised by Canton, are
relevant only insofar as they bear on the question whether the
classification that was made clears the applicable standard of scru-
tiny.10 Thus, even those litigants whose gripe is that the legislature
has impermissibly grouped them into a category with other dis-
similar individuals must demonstrate that the classification that
put them there fails constitutional muster. Canton fails to do so,
opting to question only what further sub-classifications the legis-
lature might have made.
10 As Canton indicates, our prior opinions have sometimes re-
ferred to the principle that ―persons in different circumstances
should not be treated as if their circumstances were the same.‖ See
Malan v. Lewis, 693 P.2d 661, 669 (Utah 1984); see also Gallivan v.
Walker, 2002 UT 89, ¶ 31, 54 P.3d 1069; Lee v. Gaufin, 867 P.2d 572,
577 (Utah 1993). But that principle is merely reflective of the fact
that over-inclusiveness considerations inform the determination
whether particular classifications clear the applicable standard of
scrutiny. See, e.g., Lee, 867 P.2d at 577 n.6 (invoking this principle
immediately before noting that ―every legislative act is in one
sense discriminatory‖ and explaining that a ―classification is nev-
er unreasonable or arbitrary in its inclusion or exclusion features
so long as there is some basis for the differentiation between clas-
ses . . . included as compared to those excluded from its opera-
tion‖ (internal quotation marks omitted)).
15
STATE v. CANTON
Opinion of the Court
¶40 In any event, the viability of the classification drawn by the
legislature in the criminal tolling statute is beyond reproach. The
governing standard of review is rational basis, as there is no sus-
pect classification at work and no apparent fundamental right.
(Canton vaguely suggests that the tolling statute bears on his right
to travel, but fails to identify any component of that right that is in
any way implicated, see State v. Chettero, 2013 UT 9, ¶ 15, 297 P.3d
582 (setting forth three components of the right), so he fails to
provide a basis for heightened scrutiny.) And the rationality of the
statute‘s classification is quite apparent. As explained above, there
are ample grounds for treating criminal defendants who are phys-
ically absent from the state different from those who remain here.
Supra ¶ 24 n.4. So the statute‘s classification is rational and its ap-
plication is accordingly constitutional.
——————
16