2016 UT App 221
THE UTAH COURT OF APPEALS
SANDY CITY,
Appellee,
v.
FELICIA JOYCE ANDERSON,
Appellant.
Memorandum Decision
No. 20150003-CA
Filed November 3, 2016
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 131401516
W. Andrew McCullough, Attorney for Appellant
Douglas A. Johnson, Attorney for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN
concurred.
ROTH, Judge:
¶1 Felicia Joyce Anderson was convicted of violating a Sandy
City ordinance that prohibits working as an escort in Sandy City
without a Sexually Oriented Business License from the city.
Anderson appeals her conviction of the class B misdemeanor by
challenging the constitutionality of the state statute that
authorizes municipalities to require such a license. We affirm.
¶2 At the time this case arose, Anderson was licensed as an
escort in Midvale City in accord with Midvale’s Sexually
Oriented Business License ordinance. She was not licensed in
nearby Sandy City, where a substantially similar ordinance
makes it unlawful to perform escort services “without first
obtaining a valid license from the business license authority.”
Sandy City v. Anderson
Sandy City Ordinance 5-18-3. After finding an online ad for
adult entertainment, an undercover police officer arranged to
meet with Anderson in a Sandy hotel. Shortly after she arrived,
the officer cited her for violating the Sandy City ordinance.
¶3 Anderson moved to dismiss the citation, initially arguing
that the state statute that authorizes a municipality to require
escort licensure, Utah Code section 10-8-41.5, violated her rights
under both the Utah and United States constitutions. 1 After
hearing oral argument, the district court requested additional
briefing from the parties regarding whether the state statute was
unconstitutional as applied to Anderson. According to the court,
“it was unclear . . . whether the analysis should be from the
perspective of the State’s interest or the City’s interest.”
Therefore, the court “invited the parties to address [which
interests applied], and what those interests were.”
¶4 The court determined that, in her supplemental briefing,
Anderson “shifted her challenge from the State Statute to the
Sandy Ordinance.” Specifically, she “urged [the court] to review
the Sandy Ordinance as to whether it violates the constitutional
rights of [Anderson].” With its attention turned to the Sandy
City Ordinance rather than the state statute, the court conducted
its analysis and concluded that the ordinance “passes muster
1. Anderson was initially charged in the Sandy City Justice
Court. She moved to dismiss the charges, which motion the
court denied, and the justice court convicted her following a
bench trial. She appealed to the Third District Court and again
filed a motion to dismiss. We have authority to review the
district court’s proceeding because “the district court rule[d] on
the constitutionality of a statute or ordinance.” Utah Code Ann.
§ 78A-7-118(8) (LexisNexis Supp. 2016) (“The decision of the
district court is final and may not be appealed unless the district
court rules on the constitutionality of a statute or ordinance.”).
20150003-CA 2 2016 UT App 221
Sandy City v. Anderson
under” federal constitutional law. On that reasoning, the court
denied Anderson’s motion to dismiss and held a bench trial, at
which Anderson was convicted.
¶5 While the name of the defendant differs, these facts,
arguments, and procedural history are identical to our recent
case Sandy City v. Lawless, 2016 UT App 63, 370 P.3d 1277.
Indeed, although defendants Anderson and Lawless each filed
their own motion to dismiss, the facts and legal reasoning
overlapped to such a degree that the district court denied both
motions with a single order, which it entered in both cases
below. On appeal, as in district court, Anderson makes the same
arguments that Lawless made. Specifically, Anderson does not
address the constitutionality of the Sandy City Ordinance—the
question presented to the district court. Instead, Anderson asks
us to decide whether the state authorizing statute, Utah Code
section 10-8-41.5, violates her “rights to free expression under
the First Amendment” and her “rights to Equal Protection of the
Laws under the Fourteenth Amendment.” Cf. Lawless, 2016 UT
App 63, ¶ 4.
¶6 Lawless binds our decision because “[h]orizontal stare
decisis . . . requires that [the] court of appeals follow its own
prior decisions” under almost all circumstances. State v. Menzies,
889 P.2d 393, 399 n.3 (Utah 1994) (noting that the court of
appeals may only overrule its own decision if it was “clearly
erroneous or conditions have changed so as to render the prior
decision inapplicable” (citation and internal quotation marks
omitted)). In Lawless, we declined to reach the constitutionality
of Utah Code section 10-8-41.5, because in district court the
defendant abandoned her attack on the state statute in favor of
an attack on the city ordinance and therefore “did not present
the [state statute] issue to the district court.” Lawless, 2016 UT
App 63, ¶ 5. On preservation grounds, we concluded that,
“[b]ecause [Lawless] abandoned her arguments regarding the
state statute, the district court did not have the opportunity to
20150003-CA 3 2016 UT App 221
Sandy City v. Anderson
give full consideration to the issues at that time and we therefore
have no district court decision to review.” Id. (citation and
internal quotation marks omitted).
¶7 The reasoning in Lawless is compelling and we are bound
by it under the doctrine of stare decisis. As in Lawless, Anderson
abandoned her initial arguments about the state statute in
district court, instead focusing on the city ordinance. On appeal,
Anderson changes course and attempts to resurrect her statute-
based arguments in lieu of the ordinance-based arguments on
which the district court ruled. We are therefore in no position to
review the issues raised on appeal, Lawless controls, and we
affirm.
20150003-CA 4 2016 UT App 221