Gollaher v. State

2017 UT App 168

THE UTAH COURT OF APPEALS

SCOTT LOGAN GOLLAHER,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20150363-CA
Filed September 8, 2017

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 140901901

Edwin S. Wall, Attorney for Appellant
Sean D. Reyes, Laura B. Dupaix, and Mark C. Field,
Attorneys for Appellee
John W. Huber, Jeannette F. Swent, and John S.
Koppel, Attorneys for Amicus Curiae United States
of America

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
STEPHEN L. ROTH and DAVID N. MORTENSEN concurred.1

POHLMAN, Judge:

¶1 Scott Logan Gollaher appeals the district court’s denial of
his petition for extraordinary relief. Because Gollaher has not
addressed the basis for the district court’s ruling that other plain,
speedy, and adequate remedies are available to him, we affirm.

1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.
Gollaher v. State

BACKGROUND

¶2 The State filed criminal charges against Gollaher for
sodomy on a child and sexual exploitation of a minor. The
State’s evidence includes images purportedly showing Gollaher
performing oral sodomy on the alleged child victim (Child). The
images show Gollaher’s face but do not show the face of the
other individual. Both parties agree that the images are
pornographic and may constitute child pornography.

¶3 In his defense, Gollaher planned to call Child as a witness
and to show her the images at his preliminary hearing. Gollaher
believed that when shown the images, Child would provide
exculpatory evidence by testifying that she is not the other
individual depicted. Gollaher’s plan, however, was frustrated by
the fact that his defense counsel feared he could not show the
images to Child without risking criminal and civil liability under
state and federal law. According to Gollaher, federal and state
authorities both declined to grant immunity to his counsel.

¶4 Before his preliminary hearing was complete, Gollaher
filed two pertinent motions directed to the magistrate judge
presiding over that stage of the criminal proceeding. Gollaher
premised the first motion on his assertion that a “plenarius
conflict of interest,” i.e., a complete and total conflict of interest
for any attorney, existed because no defense counsel could
legally show Child the images at the preliminary hearing or
otherwise obtain the exculpatory testimony. Gollaher asserted
that he was thereby denied due process of law and effective
assistance of counsel under the federal and state constitutions.
He therefore requested that the magistrate dismiss the case
based on the conflict or, alternatively, rule that the state and
federal criminal and civil statutes regarding child pornography
are unconstitutional as applied to his case, “in so far as they
preclude defense counsel from calling child-witnesses, and
using, showing and possessing child pornography in court
proceedings.”

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Gollaher v. State

¶5 Gollaher’s second motion related to subpoenas he had
issued to three federal agents involved in the criminal
investigation against him, seeking copies of their reports, notes,
and recordings. In response to Gollaher’s subpoenas, the United
States Department of Justice (the DOJ) authorized the three
federal agents to provide limited testimony in the criminal case,
informed Gollaher that two of the agents did not have
documents responsive to the subpoenas, and stated that federal
regulations prohibited the other agent from disclosing any
documents. Gollaher requested a court order that would exclude
further testimony from the federal agents and strike any
testimony they had already provided. He also asked the
magistrate to order the federal agents to show cause why they
should not be held in contempt for failing to fully comply with
the subpoenas.

¶6 The magistrate denied both motions “without prejudice
for lack of jurisdiction.” In addition, at Gollaher’s behest, the
magistrate stayed the criminal proceedings pending resolution
of Gollaher’s planned petition for extraordinary relief in state
court and any proceedings in federal court under the federal
Administrative Procedure Act.

¶7 Gollaher subsequently filed this case in the district court,
seeking extraordinary relief pursuant to rule 65B of the Utah
Rules of Civil Procedure. Gollaher’s petition sought to challenge
the magistrate’s interlocutory rulings denying his two motions.
In support of his petition, Gollaher asserted that he had “no
other plain, speedy or adequate remedies available to address
[these two] issues . . . before the magistrate judge.” According to
Gollaher, he had “no redress to the district court from an order
of the magistrate prior to the conclusion of the preliminary
hearing”; he was “without a remedy . . . as he [was] not entitled
to an interlocutory appeal of the magistrate’s orders”; and he
“require[d] immediate redress, as [his two] issue[s] pertain
directly to his due process rights at and during the preliminary
hearing.” Thus, he urged the district court to grant his petition
by “dismiss[ing] the [criminal] case on grounds of there being a

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plenarius conflict of interest,” and by “enter[ing] an order
striking the testimony of the federal agents and precluding them
from further submission of testimony and evidence.”

¶8 The district court denied Gollaher’s petition for
extraordinary relief. It reasoned that extraordinary relief could
be obtained only if the person has no other plain, speedy, and
adequate remedy. But the district court determined that plain,
speedy, and adequate relief relating to the magistrate’s denial of
his two motions was available to Gollaher. Specifically, the
district court explained that in the event Gollaher’s case is bound
over to the district court following a preliminary hearing, his
remedy would be to file a motion to quash the bindover. If the
magistrate were to deny the motion to quash, Gollaher could
then file an interlocutory appeal. The district court concluded
that “the relief provided by [this] course of action is plain,
speedy, and adequate.” Additionally, the district court
concluded that Gollaher’s claims were not ripe. Given the
possibility that the magistrate might not bind the case over, the
district court determined that Gollaher’s alleged harm was
“merely hypothetical” as it had not yet occurred.

¶9 With respect to the magistrate’s denial of Gollaher’s
second motion, the district court added that under United States
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), as a state district court,
it “[did] not have jurisdiction to compel the testimony of federal
employees or to compel the production of documents from
federal employees when they have not been authorized to do so
by the Department of Justice pursuant to its . . . regulations.” The
district court explained that although the DOJ had authorized
the three federal agents to provide limited testimony in
Gollaher’s criminal case, it refused to expand the scope of its
authorization, informed Gollaher that two of the agents did not
have documents responsive to his subpoenas, and stated that
federal regulations prohibited the other agent from disclosing
any documents. The district court concluded that because the
federal agents had acted in accordance with DOJ regulations, it
lacked the authority to enforce Gollaher’s subpoenas. The

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Gollaher v. State

district court further concluded that if Gollaher was dissatisfied
with the DOJ’s response, his only remedy is to challenge the
DOJ’s actions in federal court pursuant to the federal
Administrative Procedure Act. Gollaher now appeals the district
court’s denial of his petition for extraordinary relief.

ANALYSIS

¶10 On appeal, Gollaher raises two arguments, both
resembling the arguments made in the pertinent motions before
the magistrate judge in the criminal proceeding. First, Gollaher
contends that because no attorney can legally pursue his defense
by calling Child as a witness and showing her the pornographic
images, “a Plenarius Conflict of Interest exists depriving [him] of
the right to effective assistance of counsel and the [criminal] case
must be dismissed.” Second, he contends that the federal agents
have “ignored” his subpoenas “without justification” and that
they have no right to do so given that his case was a criminal
prosecution in state court. He therefore requests an order
compelling the federal agents to testify and to produce their
records, notes, and recordings.2

¶11 Under rule 65B of the Utah Rules of Civil Procedure, a
person may petition the court for extraordinary relief “[w]here
no other plain, speedy and adequate remedy is available” at law.
Utah R. Civ. P. 65B(a). Thus, to obtain extraordinary relief, a
petitioner must demonstrate that “the ordinary judicial process
[does] not provide him with a plain, speedy, and adequate
remedy to challenge” the disputed court order. Gilbert v.
Maughan, 2016 UT 31, ¶ 21, 379 P.3d 1263.

2. Gollaher does not challenge on appeal the district court’s
decision as it relates to his request to strike or to exclude the
testimony of the federal agents.

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¶12 Here, the district court denied Gollaher extraordinary
relief on the ground that he had not shown he lacked other
avenues of legal redress with regard to the magistrate’s denial of
his two motions. Given the district court’s reasoning, before we
can reach the substantive issues underlying Gollaher’s motions
before the magistrate, Gollaher’s first obligation on appeal is to
show error in the district court’s conclusion that he has plain,
speedy, and adequate remedies to contest the magistrate’s
decisions.

¶13 To carry his burden of persuasion on appeal, an appellant
must address “the actual basis for the district court’s ruling.”
Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153,
¶¶ 1, 8, 257 P.3d 441 (affirming the denial of a petition for
extraordinary relief); accord Gines v. Edwards, 2017 UT App 47,
¶ 31, 397 P.3d 612 (denying relief on appeal because the
appellant failed to “engage with the bases” for the challenged
determinations). Further, an appellant “must do so in [his]
opening brief.” See Utah Physicians for a Healthy Env’t v. Executive
Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶¶ 17–18, 391
P.3d 148; see also Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (“It is
well settled that issues raised by an appellant in the reply brief
that were not presented in the opening brief are . . . waived and
will not be considered by the appellate court.” (citation and
internal quotation marks omitted)). “If an appellant fails to
allege specific errors of the lower court, the appellate court will
not seek out errors in the lower court’s decision.” Allen, 2008 UT
56, ¶ 7.

¶14 The district court’s rationale for denying Gollaher’s
petition challenging the magistrate’s denial of his first motion—
based on counsel’s alleged “plenarius conflict”—was that
Gollaher has available avenues for relief that he could pursue
after the magistrate decides whether to bind him over for trial.
The district court determined that if Gollaher’s criminal “case is
bound over following the preliminary hearing, [Gollaher’s]
remedy is to file a motion to quash the bindover” and, in the
event that motion is denied, to file an interlocutory appeal.

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Gollaher v. State

Moreover, the district court determined that Gollaher’s harm
was “merely hypothetical” and was not yet ripe. See
Fundamentalist Church of Jesus Christ of Latter-Day Saints v.
Lindberg, 2010 UT 51, ¶ 40, 238 P.3d 1054 (“A dispute is ripe
when a conflict over the application of a legal provision has
sharpened into an actual or imminent clash of legal rights and
obligations between the parties thereto.” (citation and internal
quotation marks omitted)). Indeed, Gollaher’s counsel had not
yet manifested any decision whether or not to cross-examine
Child using the subject images and the magistrate had not yet
been required to rule on the merits of the bindover. Thus, the
outcome of either decision process remained a matter of
speculation.

¶15 Gollaher’s first contention on appeal fails to engage with
the district court’s analysis. He argues in his opening brief that
“no defense attorney can present [his] valid defense without
subjecting themselves to criminal and civil liability”; that this
court “should find the federal and state laws preclude [him]
from effective assistance of any counsel”; and that his criminal
“case should be dismissed on Due Process grounds.” These
arguments, however, are directed to the merits of the
magistrate’s denial of his first motion rather than to the district
court’s rationale for denying extraordinary relief. Moreover,
Gollaher makes no effort in his opening brief to demonstrate
why the district court’s proposed course of action—moving to
quash a bindover and filing an interlocutory appeal, if
necessary—would not afford him a plain, speedy, and adequate
remedy. Only in his reply brief does Gollaher briefly
acknowledge the basis for the district court’s decision. But this
belated and passing attempt to address the basis for the district
court’s ruling does not rescue his appeal. See Utah Physicians for a
Healthy Env’t, 2016 UT 49, ¶¶ 17–18. Because of these briefing
deficiencies, Gollaher has not shown error in the district court’s
denial of his petition as it relates to the first motion.

¶16 The district court employed the same rationale for
denying Gollaher’s petition with respect to the magistrate’s

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Gollaher v. State

denial of his second motion in connection with the request for an
order to strike and exclude the federal agents’ testimony. The
district court concluded that in the event he is bound over,
Gollaher could challenge the magistrate’s denial of that request
by moving to quash the bindover. Supra ¶ 14. As for the denial
of the motion’s additional request to compel the federal agents to
produce documents despite a lack of authorization from the
DOJ, the district court determined that Gollaher could challenge
the DOJ’s authorization decision in federal court. Citing United
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951),3 and Edwards v.
United States Department of Justice, 43 F.3d 312 (7th Cir. 1994),4 the
district court concluded that it lacked jurisdiction to compel
federal agents to testify or produce documents when they have
not been authorized to do so by the DOJ, and that if Gollaher
disagreed with the DOJ’s decision, “the only remedy he has is to
challenge [the DOJ’s decision] in federal court under the

3. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951),
embodies a common law doctrine that “the state is without
jurisdiction to independently compel the testimony or
production of documents when it is contrary to a valid agency
regulation.” Edwards v. United States Dep’t of Justice, 43 F.3d 312,
316 (7th Cir. 1994) (explaining Touhy). “Touhy is part of an
unbroken chain of authority that supports the . . . contention that
a federal employee cannot be compelled to obey a subpoena,
even a federal subpoena, that acts against valid agency
regulations.” Id. at 317.

4. In Edwards, the United States Court of Appeals for the Seventh
Circuit explained that a federal agency’s response to a subpoena
is subject to “three procedural limitations”: “the action to be
reviewed has to be an [Administrative Procedure Act] claim
directed at the agency, the United States, or the employee
thereof”; “the review action must be in federal court”; and “the
government must not have waived its sovereign immunity.” Id.
at 316.

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Administrative Procedures Act.”5 In other words, the district
court concluded that Gollaher’s plain, speedy, and adequate
remedy related to his second motion’s request to compel the
production of documents lies in federal court.

¶17 Gollaher’s second contention on appeal, which he limits
to the denial of his request to compel the federal agents to
produce documents, suffers from the same shortcomings as his
first. Supra ¶ 10 n.2. Instead of showing that he could not have
challenged the DOJ’s authorization decision in federal court,
Gollaher argues that because his case is a state criminal
prosecution, the DOJ could not withhold material from him
under state or federal law. This argument attacks the merits of
the DOJ’s decision blocking Gollaher’s access to the federal
agents’ testimony and documents. But it fails to grapple with the
district court’s rationale for concluding that Gollaher has an
available plain, speedy, and adequate remedy under the
Administrative Procedure Act. See Duchesne Land, LC v. Division
of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (rejecting
an argument where an appellant failed to address “the actual
basis for the district court’s ruling”). Gollaher therefore has not
shown error in the district court’s refusal to grant extraordinary
relief related to his second contention.

¶18 In short, Gollaher has not carried his burden of
persuasion on appeal. He has made no attempt in his opening
brief to show that “the ordinary judicial process [does] not
provide him with . . . plain, speedy, and adequate remed[ies] to
challenge” the magistrate’s denial of his two motions, and he has
not addressed the actual basis for the district court’s decision to
deny extraordinary relief. See Gilbert v. Maughan, 2016 UT 31,
¶ 21, 379 P.3d 1263.

5. Gollaher concedes that he “has not challenge[d] the
Department of Justice decision under the Administrative
Procedures Act.”

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CONCLUSION

¶19 For the foregoing reasons, we affirm the denial of
Gollaher’s petition for extraordinary relief, while expressing no
opinion on the merits of the district court’s decision or on the
substantive issues before the magistrate judge.6

6. We note that our decision today does not prevent Gollaher
from raising his substantive issues before the proper tribunal at
the appropriate time should his case proceed.

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