Bradley v. Payson City Corp.

JACKSON, Judge

(dissenting):

1 31 I write separately to express disagreement with the analysis contained in the main opinion. First, I believe this case should be certified to the supreme court. Second, I disagree with the standard of review applied in the opinion and its reliance on horizontal stare decisis.

Certification

1 32 The Bradleys filed a Rule 48 Suggestion for Certification with this court.¹ See Utah R.App. P. 48. As discussed further below, in Springville Citizens for a Better Community v. City of Springville (Springville), 1999 UT 25, 979 P.2d 832, the Utah Supreme Court unanimously applied a substantial evidence standard of review to a municipality's legislative decision to deny a rezoning application. On the other hand, in Harmon City, Inc. v. Draper City (Harmon), 2000 UT App 031, 997 P.2d 321, two judges of this court applied a reasonably debatable standard of review. The Bradleys' suggestion for certification proposed that the existence of this conflict satisfied both prongs of Rule 48, which authorizes us to certify two types of cases to the supreme court:

(1) Cases which are of such a nature that it is apparent that the case should be decided by the Supreme Court and that the Supreme Court would probably grant a petition for a writ of certiorari in the case if decided by the Court of Appeals, irrespective of how the Court of Appeals might rule, and

(2) Cases which will govern a number of other cases involving the same legal issue or issues pending in the district courts ... or the Court of Appeals....

Utah R.App. P. 48(c).

33 Payson City did not file a response to the Bradleys' Suggestion for Certification. At oral argument, counsel for Payson City was asked to respond to the certification issue. He stated that Payson City initiated the appeal in the supreme court because it believed that court had original jurisdiction. Thus, he contended that when the supreme court sent the case to this court, it was a "pourover" and not a "transfer." Rule 48(a) prohibits the court of appeals from certifying back to the supreme court a case which has been poured over from the supreme court's original jurisdiction. However, as the majority opinion points out, the supreme court order clearly "transferred" the case to this court based on our original jurisdiction over the case. Accordingly, Payson City's opposition to certification based on jurisdictional grounds fails.

4 34 When pressed further at oral argument, counsel acknowledged that, aside from the jurisdictional question, this case satisfied both criteria for certification set out by rule 43(c). He also agreed that a ruling from the supreme court would be helpful to the courts, counsel, local governments, and private parties. Either criterion provides a sound basis for certification under rule 48.

1 35 The majority opinion has given short shrift to the certification issue, stating simply that "we decline to recommend certification," without addressing Rule 48 or analyzing the merits of certification. I agree with counsel that the suggestion for certification fully satisfies the requirements of Rule 48.

11 36 First, this case is one that is "of such a nature that it is apparent that the Supreme Court would probably grant a petition for a writ of certiorari in the case if decided by [this court], irrespective of how [this court] might rule...." Utah R.App. P. 48(c)(1). The issue in this case is the standard of review under which a municipality's legislative decision to deny a rezoning application should be reviewed pursuant to a statute originally passed in 1991. See Utah Code Ann. § 10-9-1001(8) (1999) (stating municipality's land use decision "shall" be reviewed only to "determine ... whether or not the decision is arbitrary, capricious, or illegal").

137 In Harmon, we addressed this exact issue. In that case, the majority opinion interpreted "arbitrary, capricious, or ilegal," for purposes of legislative decisions, to mean the reasonably debatable standard of review, which is very deferential. Harmon, 2000 UT App 0831 at T1 14-17, 997 P.2d 821. Harmon retained the same case law standard of review for legislative decisions that was applied before 1991. I dissented, arguing that the recent supreme court case, Springville, bound us to apply the less deferential substantial evidence standard of review. The appellant in Harmon did not file a petition for certiorari. Thus, the main issue before us escaped supreme court review in that case.

138 In light of the clear conflict between Springville and Harmon, it is highly likely that the supreme court would grant a writ of certiorari in this case, no matter how we rule. See Utah R.App. P. 48(c)(1). Indeed, the majority opinion recognizes this conflict between Springville and Harmon. However, its sole reason for not applying the Spring-ville standard is unwarranted devotion to the idea of horizontal stare decisis. As I discuss further below, I believe vertical stare decisis, ie. our duty to obey the supreme court, trumps our duty to obey the holding of a coequal panel of this court.

1 39 Second, both parties to this case agree the resolution of this case "will govern a number of other cases involving the same legal issue or issues pending in the ... courts." Utah R.App. P. 48(c)(2). Thus, the issue merits a definitive statement by the supreme court.

[ 40 In sum, this case is a prime candidate for certification under Rule 48. Both parties agree that it is fit for certification and that a ruling from the supreme court is needed.

Vertical Stare Decisis

T41 At the outset, I want to emphasize that I am not attempting to bring this case within either of the State v. Menzies, 889 P.2d 393 (Utah 1994), exceptions to our horizontal stare decisis rule² Instead, I assert this case is outside the mandates of horizontal stare decisis because it is within the mandates of vertical stare decisis. The issue is: which line of authority is superior?

[ 42 In Springville, the supreme court decided this exact issue. Springville is the controlling law. The court of appeals is not empowered to adopt a ruling to the contrary. Our duty to obey holdings of the supreme court is without exception. See Menzies, 889 P.2d at 399 n. 3 (stating this court must "follow strictly the decisions rendered by [the supreme] court" (emphasis added)); Beltran v. Allan, 926 P.2d 892, 898 (Utah Ct.App.1996) ("This court is bound to follow controlling decisions of the Utah Supreme Court.").

{48 In Harmon, I expressed the reasons why Springville should be followed. My reasoning in Harmon applies equally to the case before us. First, the Utah Legislature adopted a statute setting forth "a one-size-fits-all standard of review for 'municipal[ ] land use decisions. " Harmon, 2000 UT App 031 at ¶ 44, 997 P.2d 321 (Jackson, J., dissenting). The statute contains an explicit, mandatory command to the courts; "The courts shall: ... determine only whether or not the decision is arbitrary, capricious, or illegal." Utah Code Ann. § 10-9-1001(8)(b) (1999) (emphasis added). In Springville "Itlhe supreme court took this broad language at face value," ultimately "making the sweeping statement that '[al municipality's land use decision is arbitrary and capricious if it is not supported by substantial evidence.'" Harmon, 2000 UT App 031 at ¶ 45, 997 P.2d 321 (Jackson, J., dissenting) (quoting Springville, 979 P.2d 332, 1999 UT 25 at [ 24). Moreover, the supreme court actually applied the substantial evidence standard of review in its analysis. See Springville, 1999 UT 25 at ¶ 25, 979 P.2d 332 (stating municipality's "decision was not arbitrary or capricious but ... was supported by substantial evidence"). Our supreme court did not attempt to repeal the Legislature's standard of review mandate as the majority has done. Rather, the supreme court followed the Legislature's statutory scheme. Thus, "[this court is bound to follow [Springville, the] controlling decision[ ] of the Utah Supreme Court," Beltran, 926 P.2d at 898, and the statutory command of the Legislature.³

'I 44 On the other hand, the majority here relies on the erroneous distinction made by the majority in Harmon between a municipality's legislative and administrative land use decisions. This reliance on Harmon remains erroneous because vertical stare deci-sis commands that we follow the supreme court's clear statement in Springville of the proper standard of review. The Harmon distinction between legislative and administrative land use decisions was not made in Springville. The Harmon majority acknowledged this fact, noting that the supreme court did not say it was abandoning the distinction. See Harmon, 2000 UT App 031 at ¶ 19, 997 P.2d 321. Thus, the Harmon majority interpreted the supreme court's silence in Springville as a command to preserve the distinction between legislative and administrative land use decisions. This approach is in error. CL Black's Law Dictionary 1414 (7th ed.1999) (defining stare deci-sis with "'Lord Halsbury's assertion that a case is only authority for what it actually decides." (citation omitted)).

Further, the majority opinion also tries to diminish the supreme court's clear statement in Springville of the proper standard of review. The opinion asserts that in Springville the supreme court "merely stated that a municipal's land use decisions ... are arbitrary and capricious when not supported by substantial evidence." (Emphasis added.) However, the supreme court's statement was not merely a tangential reference to policy considerations, but rather was "the supreme court's 'clear[ ] command'" that the substantial evidence standard of review should apply to all municipal land use decisions. Harmon, 2000 UT App 031 at ¶ 40, 997 P.2d 321 (Jackson, J., dissenting) (citation omitted).

146 In sum, any duty horizontal stare decisis imposes on us to follow Harmon is trumped by our duty to obey the supreme court's clear command in Springville. Moreover, our courts traditionally give great deference to mandatory standards of review established by the Legislature. Accordingly, we should apply the substantial evidence standard of review to this case.

CONCLUSION

1 47 I believe we should have certified this case to the supreme court to consider the significant issue of which standard of review to apply to municipal land use decisions. Further, I would hold that the arbitrary and capricious standard of section 10-9-1001(8)(b) requires us to apply a substantial evidence standard of review. Thus, I respectfully dissent from the majority opinion.

1 . Whether a suggestion for certification is initiated by counsel, a three judge panel, or an individual judge of this court, the suggestion is circulated to the entire court. We will certify a case to the supreme court only if at least four judges of this court vote to do so. See Utah R.App. P. 43(a).

2 . The Menzies exceptions are (1) a clearly erroneous decision and (2) changed circumstances. See State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994). I note that the general orthodox interpretation of stare decisis is subject to two exceptions: (1) urgent reasons and (2) exceptional cases. See Blacks Law Dictionary 1414 (7th Ed.1999).

3 . The Utah Legislature frequently establishes standards of appellate review. For example, the Uniform Administrative Procedures Act (UAPA) sets standards of review for appeals from government agencies. Typically, our courts have given great deference to the Legislature's explicit commands.

Utah appellate courts have meticulously followed the substantial evidence standard of review under Utah Code Ann. § 63-46b-16(4)(g) (1997). See Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 677 (Utah 1997); Whitear v. Labor Comm'n, 973 P.2d 982, 984 (Utah Ct.App.1998). Similarly, our courts have respected the restraint imposed by the Legislature in section 63-46b-16(4)(h), requiring an abuse of discretion standard of review when the Legislature expressly or impliedly grants an agency discretion. See Utah Code Ann. § 63-through (iv) (1997); Steiner Corp. v. Auditing Div., 1999 UT 53, ¶ 14, 979 P.2d 357, 362 (Utah 1999); SF Phosphates Ltd. v. Auditing Div., 972 P.2d 384, 385 (Utah 1998); Osman Home Improvement v. Industrial Comm'n, 958 P.2d 240, 243 (Utah Ct.App.1998).

In other statutory schemes, the Legislature has established exceptions to the standards of review dictated by UAPA, to which Utah appellate courts have adhered. See, eg., Utah Code Ann. § 59-1-610(1)(a) (2000); Schmidt v. Utah State Tax Comm'n, 1999 UT 48, ¶ 6, 980 P.2d 690. Accordingly, this deference is proper in the arena of administrative law, and even more so when we are reviewing decisions of local government. Utah courts should not ignore the standards of review pronounced by the Utah Legislature.