Packer v. Utah Attorney General's Office

2013 UT App 194
_________________________________________________________

THE UTAH COURT OF APPEALS

IN THE MATTER OF A CRIMINAL INVESTIGATION

LYNN KENNETH PACKER,
Petitioner and Appellant,
v.
UTAH ATTORNEY GENERAL’S OFFICE,
Respondent and Appellee.

Opinion
No. 20110774‐CA
Filed August 1, 2013

Third District, Salt Lake Department
The Honorable Deno G. Himonas
No. 100916743

Lynn Kenneth Packer, Appellant Pro Se
John E. Swallow and Laura B. Dupaix, Attorneys
for Appellee
Peggy E. Stone, Attorney for Amicus Curiae

JUDGE WILLIAM A. THORNE JR. authored this Opinion,
in which JUDGES GREGORY K. ORME and JAMES Z. DAVIS
concurred.

THORNE, Judge:

¶1 Lynn Kenneth Packer filed several motions in the district
court pertaining to a criminal investigation in which he was the
complaining witness. The district court dismissed Packer’s motions
for lack of standing, and Packer appeals. We agree with the district
court that Packer lacks standing, and we therefore dismiss his
appeal.

BACKGROUND

¶2 Packer developed and patented a new lecture capture
technology that he was preparing to market in early 2010. In
Packer v. Attorney General’s Office

February 2010, Weber State University (Weber State) solicited bids
for a lecture capture equipment system. Packer submitted a bid for
the Weber State contract.

¶3 Packer suspected that Weber State’s bid process was
designed so that only one supplier could submit a successful bid.
To investigate this suspicion, Packer submitted a request for
documents and other information from Weber State pursuant to
the Government Records Access and Management Act (GRAMA),
see Utah Code Ann. §§ 63G‐2‐101 to ‐901 (LexisNexis 2011 & Supp.
2012).1 Weber State produced some documents in response, but
Packer believed that the file he received was incomplete, and in
March 2010, he submitted a second GRAMA request to Weber
State.

¶4 A few days after he submitted his second GRAMA request,
Packer contacted the Utah Attorney General’s Office (the Attorney
General) to report his suspicion that Weber State was rigging its
bid process. The Attorney General began an investigation into the
matter, which ultimately developed into a formal criminal
investigation. As part of that investigation, the Attorney General
subpoenaed both Packer and Weber State pursuant to the
Investigative Subpoena Powers Act (the Subpoena Act), see id.
§§ 77‐22‐1 to ‐5 (2012).2 The Attorney General also obtained secrecy
orders pursuant to the Subpoena Act, prohibiting Packer and
Weber State from disclosing the substance of their testimony or the
evidence they produced.

1. The statutes cited in this opinion have not been substantively
amended in any way relevant to our analysis since the events
giving rise to this case, and we cite the most current version of the
statutes for convenience.

2. The Attorney General’s subpoena of Packer erroneously
identified Packer as a target of the investigation, but it is now
undisputed that Packer is not and never was a target. Nevertheless,
he complied with the subpoena without objection.

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¶5 Upon receiving notice of the criminal investigation, Weber
State denied Packer’s second GRAMA request pursuant to Utah
Code section 63G‐2‐305(9). See id. § 63G‐2‐305(9) (Supp. 2012)
(protecting records under certain circumstances relating to
investigations and audits). In September 2010, Packer filed a
motion in the district court to narrow the scope of the secrecy order
and unseal some of the documents. Packer and the Attorney
General stipulated to the bulk of the relief requested in Packer’s
motion. In March 2011, Packer filed motions seeking to sanction
and disqualify counsel for both the Attorney General and Weber
State because of an alleged conflict of interest, to have a special
prosecutor appointed, and to require the Attorney General to
comply with the Subpoena Act by filing descriptions of documents
and transcripts of testimony obtained pursuant to its subpoenas.

¶6 Both the Attorney General and Weber State sought to strike
or dismiss Packer’s motions, arguing that Packer lacked standing
to bring the motions. The district court agreed, concluding that
Packer did not meet the traditional test for standing because he was
not adversely affected by the challenged actions. The district court
further concluded that Packer did not meet the alternative standing
test because he did not have a real and personal interest in the
dispute. Packer appeals the district court’s ruling.

ISSUE AND STANDARD OF REVIEW

¶7 Packer argues that the district court erred when it concluded
that he lacked standing to pursue the relief he sought in his
motions. “‘Standing is a question of law that we review for
correctness, affording deference for factual determinations that
bear upon the question of standing, but minimal deference to the
district court’s application of the facts to the law.’” Magna Water Co.
v. Strawberry Water Users Ass’n, 2012 UT App 184, ¶ 6, 285 P.3d 1
(quoting City of Grantsville v. Redevelopment Agency of Tooele City,
2010 UT 38, ¶ 9, 233 P.3d 461).

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ANALYSIS

¶8 The district court concluded that Packer lacked standing to
bring his motions seeking to require the Attorney General to
comply with the Subpoena Act, to disqualify counsel, and to
appoint a special prosecutor. “‘[S]tanding is a jurisdictional
requirement that must be satisfied before a court may entertain a
controversy between two parties.’” Davis v. Sperry, 2012 UT App
278, ¶ 13, 288 P.3d 26 (alteration in original) (quoting Jones v.
Barlow, 2007 UT 20, ¶ 12, 154 P.3d 808). “‘On appeal, a party whose
standing is challenged must show that he or she had standing . . .
in the original proceeding before the district court.’” Chen v.
Stewart, 2005 UT 68, ¶ 50, 123 P.3d 416 (quoting Society of Profʹl
Journalists, Utah Chapter v. Bullock, 743 P.2d 1166, 1171 (Utah 1987));
see also Specht v. Big Water Town, 2007 UT App 335, ¶ 14, 172 P.3d
306 (dismissing appeal for lack of jurisdiction where appellant
lacked standing to bring his action in the district court). Packer
argues on appeal that he has standing under both the traditional
standing test and the alternative standing test. See generally Utah
Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶¶ 19–20,
36, 148 P.3d 960 (discussing the traditional and alternative standing
tests).

I. Traditional Standing

¶9 The traditional test for standing has three parts. Hogs R Us
v. Town of Fairfield, 2009 UT 21, ¶ 8, 207 P.3d 1221.

First, the party must assert that it has been or will be
adversely affected by the [challenged] actions.
Second, the party must allege a causal relationship
between the injury to the party, the [challenged]
actions and the relief requested. Third, the relief
requested must be substantially likely to redress the
injury claimed.

Id. (alterations in original) (citation and internal quotation marks
omitted). “The traditional test is often referred to as the ‘distinct

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and palpable injury’ requirement,” Utah Chapter of Sierra Club, 2006
UT 74, ¶ 19, because a party asserting traditional standing must
allege “some distinct and palpable injury that gives [him] a
personal stake in the outcome of the legal dispute,” id. (citation and
internal quotation marks omitted).

¶10 Here, the district court determined that Packer lacked
traditional standing to bring his motions. As to the motion to
enforce compliance with the Subpoena Act, the district court
concluded that the real objective of Packer’s motion was to obtain
the documents he had sought in his second GRAMA request and
that those documents would remain protected throughout the
course of the criminal investigation even if Packer’s motion was
granted. See Utah Code Ann. § 63G‐2‐305(9) (LexisNexis Supp.
2012) (protecting records under certain circumstances relating to
investigations and audits). Therefore, the district court concluded
that the relief requested was not “substantially likely to redress the
injury claimed.” Hogs R Us, 2009 UT 21, ¶ 8.

¶11 As to the motions to disqualify counsel and appoint a special
prosecutor, the district court observed that the “general rule” is
that a person lacks standing to disqualify counsel unless the person
has an attorney‐client privilege with the attorney to be disqualified.
See Booth v. Continental Ins. Co., 634 N.Y.S.2d 650, 653 (N.Y. Sup. Ct.
1995) (“[T]he general rule must be recognized that absent an
attorney‐client relationship, standing is generally lacking on
disqualification motions.”); 7A C.J.S. Attorney and Client § 175
(2004) (“Generally, only a party who is a client of an attorney who
undertakes to represent conflicting interests may be entitled to
object to such representation . . . .”). The district court additionally
found that Packer “does not allege that he has sustained, or will
sustain, an injury as a result of the alleged conflict of interest.”

¶12 We agree with the district court that Packer lacks traditional
standing. None of his motions allege any “distinct and palpable
injury that gives [him] a personal stake in the outcome.” Utah
Chapter of Sierra Club, 2006 UT 74, ¶ 19 (citation and internal

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quotation marks omitted). To the extent that the motions can be
read as an attempt to obtain the documents sought in Packer’s
second GRAMA request—a reading that Packer objects to on
appeal—the district court correctly concluded that the relief sought
in Packer’s motions would not result in any earlier production of
those documents. See Hogs R Us, 2009 UT 21, ¶ 8 (“[T]he relief
requested must be substantially likely to redress the injury
claimed.” (citation and internal quotation marks omitted)).

¶13 Packer takes issue with the district court’s treatment of his
motions as relating solely to his second GRAMA request, arguing
that his “‘real interest’ in connection with the court proceedings is
to achieve what his motions sought.” However, his motions sought
to assert and rectify an alleged conflict of interest between counsel
for the Attorney General and Weber State and to require the
Attorney General to comply with Packer’s interpretation of the
Subpoena Act. As Packer is not the target of the criminal
investigation, he has no “personal stake in the outcome” of
questions pertaining to the Attorney General’s or Weber State’s
choice of counsel or the Attorney General’s compliance with the
Subpoena Act in this matter. See Utah Chapter of Sierra Club v. Utah
Air Quality Bd., 2006 UT 74, ¶ 19, 148 P.3d 960 (citation and internal
quotation marks omitted). Rather, under the circumstances, his
motions “amount to ‘generalized grievances that are more
appropriately directed to the legislative and executive branches of
the state government.’” Society of Prof’l Journalists, Utah Chapter v.
Bullock, 743 P.2d 1166, 1170 (Utah 1987) (quoting Jenkins v. Swan,
675 P.2d 1145, 1149 (Utah 1983)). Thus, no matter how we read
Packer’s motions, he lacks traditional standing to seek the relief
sought therein.

¶14 Packer does provide some authority for the proposition that
an adverse party always has standing to allege a conflict of interest
of opposing counsel. See generally In re Gopman, 531 F.2d 262,
265–66 (5th Cir. 1976) (allowing the United States to raise a conflict
of interest affecting counsel for multiple witnesses in a grand jury
investigation); Booth, 634 N.Y.S.2d at 653 (“[S]ince an attorney has
the authority and obligation to bring a possible ethical violation to
the attention of the court . . . the adverse party may properly move

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to disqualify the attorney for an opposite party on the ground of
conflict of interest.” (omission in original) (citation and internal
quotation marks omitted)); 7A C.J.S. Attorney and Client § 175 (2004)
(stating that an adverse party may move to disqualify opposing
counsel). Packer argues that the district court inappropriately
limited this standing exception to licensed attorneys and persons
represented by counsel.

¶15 The district court’s ruling did make reference to Packer’s
status as an unlicensed pro se litigant, stating that the exception
urged by Packer “does not apply in this case because Packer is not
a party to or target of the investigation, is not a licensed attorney,
and is not represented by counsel in this matter.” Assuming for
purposes of Packer’s argument that Utah does grant adverse
parties, including unlicensed pro se parties, standing to assert
ethical violations by opposing counsel—an issue we do not decide
today—we ultimately agree with the district court that such
standing is unavailable here because Packer “is not a party to or
target of the investigation.” In other words, Packer is not an
“adverse party” to either the Attorney General or Weber State, see
Booth, 634 N.Y.S.2d at 653, and is thus not in a position to challenge
the qualifications of those parties’ choice of counsel.3

II. Alternative Standing

¶16 Packer also argues that he has standing under the alternative
standing test, see Utah Chapter of Sierra Club v. Utah Air Quality Bd.,
2006 UT 74, ¶ 36, 148 P.3d 960, sometimes referred to as the public‐
interest standing doctrine, see Gregory v. Shurtleff, 2013 UT 18, ¶ 16,
299 P.3d 1098 (“Our public‐interest standing doctrine is not
unusual in state jurisprudence.”). Parties may gain alternative or

3. We also note that Packer has apparently raised the alleged
conflict of interest asserted in his motions with the Utah State Bar.
That would appear to be the appropriate venue for a non‐party to
raise complaints relating to compliance with the Utah Rules of
Professional Conduct.

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public‐interest standing “if they can show that they are an
appropriate party raising issues of significant public importance.”
Cedar Mountain Envtl., Inc. v. Tooele Cnty., 2009 UT 48, ¶ 8, 214 P.3d
95.

¶17 Here again, we agree with the district court’s ultimate
conclusion that Packer lacked alternative standing.4 As to the
motion to enforce the Subpoena Act, the district court relied on its
prior characterization of the motion as one actually intended to
effectuate Packer’s second GRAMA request. The district court
reasoned that, regardless of Packer’s motion, the GRAMA
materials would not be provided until the criminal investigation
was dismissed. See Utah Code Ann. § 63G‐2‐305(9) (LexisNexis
Supp. 2012) (protecting records under certain circumstances
relating to investigations and audits). Accordingly, the district
court concluded that Packer was not an appropriate party because
he lacked the “personal interest” in the outcome of the motion that
is required of one asserting alternative standing. See Utah Chapter
of Sierra Club, 2006 UT 74, ¶ 38. The district court also concluded
that Packer lacked alternative standing to pursue his motions to
disqualify counsel and appoint a special prosecutor, reasoning that
Packer had no “personal interest” regarding either the conflict of
interest alleged in his motions or in his “generalized” concerns
about the fairness of the investigation. See id. ¶¶ 38–39.

¶18 Again, Packer disputes the district court’s focus on the
denial of his second GRAMA request as the source of Packer’s
required “personal interest” in his motions. See id. ¶ 38. Instead,
Packer argues that his goal was “to achieve what his motions
sought,” which would be to enforce the Subpoena Act and to
enforce the Utah Rules of Professional Conduct by disqualifying
counsel and appointing a special prosecutor. For purposes of our
analysis today, we accept Packer’s characterization of his motions,
but we still determine that he lacks alternative standing.

4. This opinion is not to be read as establishing that alternative
standing is ever available in criminal matters.

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¶19 Alternative standing requires a showing that one is “an
appropriate party raising issues of significant public importance.”
Utah Chapter of Sierra Club, 2006 UT 74, ¶ 35. Even if we accept
Packer’s implicit argument that the issues he raises in his motions
are, at least in a general sense, “issues of significant public
importance,” Packer fails to demonstrate that he is “an appropriate
party” to raise those issues. See id. To be an appropriate party, one
must “show ‘a real and personal interest in the dispute,’” id. ¶ 38
(quoting Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983)), and
Packer has shown no real and personal interest in the general
enforcement of either the Subpoena Act or the Utah Rules of
Professional Conduct. Instead, his interest appears to be in
enforcing his interpretation of those provisions as the complaining
witness and putative victim in this particular case, an issue of much
narrower public significance.

¶20 Packer has not demonstrated that he is an appropriate party
to litigate, as a general matter, issues of public importance relating
to the Subpoena Act or the Utah Rules of Professional Conduct.
Although he may have a real and personal interest in the
application of those provisions to this particular investigation, we
do not consider that narrower issue to be one of “significant public
importance” for purposes of the alternative standing test. See id.
¶ 35. Accordingly, we agree with the district court that Packer lacks
alternative standing.

CONCLUSION

¶21 Packer has not demonstrated that he has traditional standing
to seek enforcement of the Subpoena Act or to seek the
disqualification of counsel and the appointment of a special
prosecutor, nor has he shown that he should be allowed to proceed
under alternative or public‐interest standing. Accordingly, we
agree with the district court that Packer lacks standing to obtain the
relief he seeks. Packer’s lack of standing deprives us of jurisdiction
over his appeal, and we therefore dismiss his appeal for lack of

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jurisdiction.5 See Specht v. Big Water Town, 2007 UT App 335, ¶ 14,
172 P.3d 306.

5. Both the Attorney General and amicus curiae Weber State raise
additional jurisdictional challenges to Packer’s appeal, including
the compelling suggestion that Packer could not directly appeal the
district court’s denial order and was instead required to seek
review via a petition for extraordinary relief. Cf. Burns v. Boyden,
2006 UT 14, ¶ 6, 133 P.3d 370 (reviewing the denial of a target’s
motion to quash a subpoena in a criminal investigation on a
petition for extraordinary relief under rule 65B of the Utah Rules of
Civil Procedure). However, we elect to resolve this matter on the
jurisdictional requirement of standing, see Davis v. Sperry, 2012 UT
App 278, ¶ 13, 288 P.3d 26, and we decline to address the other
jurisdictional arguments raised by the Attorney General and Weber
State.
Additionally, after oral argument in this case, we received
a suggestion of mootness from the Attorney General asking that
Packer’s appeal be dismissed as moot in light of the closing of the
underlying criminal investigation. As we conclude that we must
dismiss Packer’s appeal for lack of jurisdiction, we have no
occasion to entertain the Attorney General’s suggestion of
mootness.

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