Salt Lake City v. Peterson

2010 UT 64
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Salt Lake City, 	No. 20090367
Plaintiff and Appellee,
v.
F I L E D
Cory Peterson,
Defendant and Appellant. 	November 19, 2010
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Third District, Salt Lake
The Honorable Vernice Trease
No. 081908502
Attorneys: 	Simarjit Singh Gill, Scott A. Fisher, Salt Lake City,
for plaintiff
Ronald J. Yengich, Elizabeth Hunt, Salt Lake City,
for defendant
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DURHAM, Chief Justice:
INTRODUCTION
¶1 	In this case, the trial court erred in denying
defendant Cory Peterson’s motion to dismiss an information filed
by the Salt Lake City Prosecutor. 	We agree with Mr. Peterson’s
argument on interlocutory appeal that the plain language of Utah
Code section 10-3-928 prohibits a city attorney from prosecuting
misdemeanors and infractions that occurred outside that city’s
geographical boundaries. 	We reverse and remand for dismissal of
the information.
BACKGROUND
¶2 	On October 26, 2008, West Jordan police were called to
a West Jordan residence in response to an alleged domestic
incident involving Mr. Peterson, a Salt Lake County Sheriff’s

1 This recitation of facts draws from the stipulated facts
submitted by both parties during the trial court’s consideration
of Mr. Peterson’s motion to dismiss.
No. 20090367 	2
Deputy. 1 	The West Jordan police investigated the incident and
forwarded their findings to Stuart Williams, the West Jordan City
Prosecutor. 	Mr. Williams concluded that multiple conflicts of
interest prevented his office from prosecuting Mr. Peterson. 	As
a result, Mr. Williams requested that the Salt Lake City District
Attorney’s Office take over the prosecution of Mr. Peterson.
Because Mr. Peterson’s brother works as an investigator at the
Salt Lake City District Attorney’s Office, that office also
screened itself off the case.
¶3 	Mr. Williams then contacted the Salt Lake City
Prosecutor’s Office and requested that it take the case. 	The
Salt Lake City Prosecutor accepted. 	The Salt Lake City Police
Department then investigated the alleged domestic incident.
Subsequently, the Salt Lake City Prosecutor’s Office filed seven
charges arising under state law against Mr. Peterson. 	The Salt
Lake City Prosecutor filed the information in the Third District
Court in Salt Lake City, not West Jordan.
¶4 	In response, Mr. Peterson filed a Motion to Dismiss the
Information, arguing that the Salt Lake City Prosecutor’s Office
lacked authority to prosecute him for charges stemming from an
incident occurring within the city limits of West Jordan. 	The
district court denied the motion, believing that Utah Code
section 10-3-928(2)’s geographical limitation on a city
attorney’s authority to prosecute does not apply in conflict-of-
interest situations. 	The district court referred to the value of
prosecutorial discretion in handling conflicts issues and cited
Villalpando v. Reagan, 121 P.3d 172 (Ariz. Ct. App. 2005), in
support of its decision.
¶5 	Mr. Peterson then filed a petition for interlocutory
appeal, which was granted. 	We have jurisdiction pursuant to Utah
Code section 78A-3-102(3)(b) (Supp. 2010).
STANDARD OF REVIEW
¶6 	“The grant or denial ‘of a motion to dismiss is a
question of law [that] we review for correctness, giving no
deference to the decision of the trial court.’” 	State v.
Hamilton, 2003 UT 22, ¶ 17, 70 P.3d 111 (alteration in original)
(quoting Krouse v. Bower, 2001 UT 28, ¶ 2, 20 P.3d 895).

3 	No. 20090367
ANALYSIS
¶7 	Utah’s system of criminal justice is a statutory
scheme. 	See Utah Code Ann. § 76-1-105 (2008) (abolishing all
common law crimes and establishing Utah’s criminal law as
statutorily based); State v. Drej, 2010 UT 35, ¶ 18, 233 P.3d 476
(“The legislature unquestionably has the exclusive authority to
define what acts constitute crimes and what the elements of those
crimes are.”); State v. Gallion, 572 P.2d 683, 688 (Utah 1977)
(“[T]he courts may not denounce and punish as crimes acts and
omissions not made punishable by statute, for it is a legislative
power to declare acts as crimes and to prescribe proper
penalties.”). 	Moreover, the Utah Constitution vests the
legislature with the authority to define who may enforce the laws
of the state: “The Legislature shall provide for a system of
public prosecutors who shall have primary responsibility for the
prosecution of criminal actions brought in the name of the State
of Utah and shall perform such other duties as may be provided by
statute.” 	Utah Const. art. VIII, § 16. 	Other than being
(1) elected and (2) admitted to practice law in the state, the
constitution permits the legislature to freely define the system
of public prosecutors. 	See Id.
¶8 	The legislature has used this constitutional authority
to create three types of public prosecutors. 	They are (1) the
Utah Attorney General, (2) district attorneys, and (3) county
attorneys. 	State v. Robertson, 924 P.2d 889, 890-91 (Utah 1996)
(stating that those three offices are “‘public prosecutors’
within the meaning of section 16”). 	As required by statute, each
of these individuals is elected to statewide (in the instance of
the Attorney General) or countywide (in the instance of district
and county attorneys) office. 	See Utah Const. art. VII, § 1
(Attorney General); Utah Code Ann. § 17-18-1.6 (2009)(district
attorney); id., 17-18-1(1)(1) (2009)(county attorney).
¶9 	City attorneys, however, are not public prosecutors
because they are not elected officials. 	Robertson, 924 P.2d at
891. 	But the fact that city attorneys are not elected and do not
meet the constitutional definition of a public prosecutor does
not render the legislature’s grant of authority to city
prosecutors unconstitutional. 	Indeed, in State v. Robertson we
held that the statute granting authority to city attorneys is
constitutional. 	Id. at 893. 	Our decision in Robertson was
predicated on article VIII, section 16’s use of the term “primary
responsibility.” 	In interpreting that term, we stated that
“article VIII, section 16 confers only ‘primary,’ not
‘exclusive,’ responsibility on elected public prosecutors for the
‘prosecution of criminal actions.’ 	It follows that a residuum of

2 It is this fact that makes Villalpando v. Reagan, 121 P.3d
172 (Ariz. Ct. App. 2005), a case cited extensively in Salt Lake
City’s brief, inapposite. 	In considering the amount of
discretion owed prosecutors in transferring cases due to
conflicts of interest, the Arizona court did not consider any
statutory scheme constraining its city prosecutors. 	Instead, the
Arizona court noted that the only issue presented was “whether a
conflict-barred prosecutor’s nomination of substitute counsel
violates a defendant’s federal and state due-process rights to
‘fundamental fairness.’” 	Id. at 174.
No. 20090367 	4
prosecutorial power exists which the Legislature may confer on
persons other than ‘public prosecutors.’” 	Id. at 891. 	Moreover,
we held that article VIII, section 16
merely states that elected public prosecutors
must retain “primary” responsibility within
the overall prosecutorial scheme. 	The
implicit residual or nonprimary
responsibility found in section 16 allows the
Legislature to confer limited powers to
prosecute state crimes. 	The Legislature may
use that authority to further the public
interest in prosecuting crimes as long as the
“primary responsibility” of “public
prosecutors” is not undermined. 	Here, Utah
Code Ann. § 10-3-928 grants a very limited
authority to city attorneys.
Id. at 893.
¶10 	Although our discussion of city attorneys in Robertson
was focused on determining whether the legislature had the
authority to create non-public prosecutors, it is nonetheless
relevant to the inquiry presented in this appeal. 	Our holding
clearly stands for the proposition that the legislature has the
authority to “confer limited powers” on non-public prosecutors.
The legislature therefore has as much authority to define the
limits of those officials who are not public prosecutors but
carry out residual or nonprimary functions as it does to define
the offices that are public prosecutors. 	Thus, the authority of
a city attorney is entirely encompassed in the Utah Code; 2 it is
the legislature that permits the creation of a city attorney and
defines the scope of that office. 	See Utah Code Ann. § 10-3-928
(2007); Robertson, 924 P.2d at 893.
¶11 	Turning now to the statute that governs city attorneys,
section 10-3-928 states in relevant part:

3 In Robertson, we also held that the legislature’s decision
to authorize city attorneys to prosecute misdemeanor charges and
infractions that occur within city limits does not impinge on
public prosecutors’ primary responsibility for the prosecution of
criminal activities. 	924 P.2d at 893. 	“Moreover, rather than
undermining the primary responsibility of public prosecutors, the
statute enhances the ability of public prosecutors to perform
their most significant duty--the prosecution of felonies.” 	Id.
4 We note that it was not necessary for the Salt Lake City
Prosecutor to take this case in order for any prosecution to
occur. 	“Should city attorneys choose not to prosecute particular
violations of state law falling within their jurisdiction, a
public prosecutor always retains the right to follow through on
the matter.” 	Robertson, 924 P.2d at 893 (emphasis added). 	The
Utah Attorney General retains authority to “prosecute . . . all
causes to which the state . . . is a party” when a city attorney
(continued...)
5 	No. 20090367
In cities with a city attorney, the city
attorney:
(1) may prosecute violations of city
ordinances[;]
(2) may prosecute, under state law,
infractions and misdemeanors occurring within
the boundaries of the municipality;
(3) has the same powers in respect to
violations as are exercised by a county
attorney or district attorney, except that a
city attorney’s authority to grant immunity
shall be limited . . . .
“When our review ‘requires us to examine statutory language, we
look first to the plain meaning of the statute.’” 	State v.
Hamilton, 2003 UT 22, ¶ 17, 70 P.3d 111 (quoting Young v. Salt
Lake City Sch. Dist., 2002 UT 64, ¶ 10, 52 P.3d 1230). 	The plain
language of this section permits a city attorney to prosecute
only limited types of violations of state law (infractions and
misdemeanors) that occur within the boundaries of that city
attorney’s municipality. 3 	This is the scope of authority, in the
context of prosecuting violations of state law, that the
legislature vested in city attorneys. 	Neither the prosecutors
subject to section 10-3-928 nor the courts are empowered to
expand that authority. 4

4 (...continued)
does not prosecute and “assist any . . . city attorney in the
discharge of his duties.” 	Utah Code Ann. § 67-5-1(2), (8); see
also Robertson, 924 P.2d at 894 (Russon, J., concurring in the
result) (“City attorneys are, however, authorized to prosecute
certain cases in the name of the state, relieving the duty, but
not the authority, of the . . . attorney general to conduct the
prosecution. 	Even so, prosecutions by city attorneys are subject
to the common law authority of the attorney general to intervene
in the interest of the public.” (emphases added)); cf. State v.
Jiminez, 588 P.2d 707, 708 (Utah 1978) (“Certainly the framers of
the Constitution had no intention to elevate County Attorneys to
positions of pre-eminence where they might dictate that the
Attorney General, who has supervisory authority over them, could
not act in the role of prosecutor under appropriate
circumstances.”). 	Furthermore, article VIII, section 16 of the
Utah Constitution states that “[i]f a public prosecutor fails or
refuses to prosecute, the Supreme Court shall have power to
appoint a prosecutor pro tempore.”
No. 20090367 	6
¶12 	The Salt Lake City Prosecutor has brought misdemeanor
charges against Mr. Peterson for events that occurred in West
Jordan, outside the Salt Lake City limits. 	Thus, the Salt Lake
City Prosecutor’s prosecution of Mr. Peterson contravenes the
limited authority that the legislature vested in city attorneys
to “prosecute . . . infractions and misdemeanors occurring within
the boundaries of the municipality.”
CONCLUSION
¶13 	In charging Mr. Petersen, the Salt Lake City
prosecutors exceeded their statutory authority as city attorneys
under Utah Code section 10-3-928. 	Accordingly, we reverse the
trial court and remand for the dismissal of the information.
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¶14 	Associate Chief Justice Durrant, Justice Parrish,
Justice Nehring and Judge Mortensen concur in Chief Justice
Durham’s opinion.
¶15 	Justice Wilkins does not participate herein; District
Judge David Mortensen sat.