Smith v. Hon. Hruby-Mills

2016 UT App 159

THE UTAH COURT OF APPEALS

MICHAEL SMITH,
Petitioner,
v.
THE HONORABLE ELIZABETH HRUBY-MILLS
AND SALT LAKE CITY,
Respondents.

Opinion
No. 20150198-CA
Filed July 29, 2016

Original Proceeding in this Court

Jason Schatz, Attorney for Petitioner
Brent M. Johnson and Nancy J. Sylvester, Attorneys
for Respondent the Honorable Elizabeth Hruby-Mills
Padma Veeru-Collings and Brandon E. Simmons,
Attorneys for Respondent Salt Lake City

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
J. FREDERIC VOROS JR. and JUSTICE JOHN A. PEARCE concurred. 1

ROTH, Judge:

¶1 Pursuant to rule 65B of the Utah Rules of Civil Procedure,
Michael Smith petitions this court for extraordinary relief
following a ruling against him by the Honorable Elizabeth
Hruby-Mills on a motion to suppress evidence. Smith filed the

1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
 Smith v. Hon. Hruby-Mills

motion during the course of an appeal to the district court from a
misdemeanor criminal conviction in the Salt Lake City Justice
Court. Although we conclude that he is eligible for relief, we
deny Smith’s petition because he has failed to persuade us that
the district court abused its discretion.

BACKGROUND

¶2 Smith was arrested for driving under the influence, see
Utah Code Ann. § 41-6a-502 (LexisNexis 2014), and failure to
stay in one lane, see id. § 41-6a-710(1). Salt Lake City (the City)
subsequently filed corresponding charges against Smith in the
justice court.

¶3 Before trial, Smith successfully moved the justice court to
suppress all evidence obtained following the initial traffic stop
on the basis that the police officer lacked reasonable suspicion to
stop his vehicle. The City “exercise[d] its right to appeal [the
justice court’s] pre-trial order suppressing evidence” by filing a
notice of appeal seeking a hearing de novo in the district court.
See id. § 78A-7-118(6) (LexisNexis Supp. 2015). 2 The City’s appeal
was assigned to Third District Court Judge Hruby-Mills. 3 After
the de novo hearing, which included briefing, presentation of

2. The Utah Legislature made changes to the wording and
numbering of some subsections of section 78A-1-118 by an
amendment effective May 10, 2016. See 2016 Utah Laws ch. 33
§ 5. Because the amended statute does not differ materially from
the version of the statute in effect during the relevant time frame,
we cite the most recent version of the Utah Code Annotated.

3. Rule 38 of the Utah Rules of Criminal Procedure requires that
“[a] case appealed from a justice court shall be heard in a district
courthouse located in the same county as the justice court from
which the case is appealed.” Utah R. Crim. P. 38(a).

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 Smith v. Hon. Hruby-Mills

evidence, and argument, the district court judge denied Smith’s
motion to suppress and remanded the case to the justice court
for further proceedings. Smith then pleaded guilty to driving
under the influence and was sentenced. 4 The day after
sentencing, Smith appealed his conviction to the district court
under section 78A-7-118(1) of the Utah Code and rule 38 of the
Utah Rules of Criminal Procedure, which provide for a trial de
novo in the district court on appeal from a judgment of the
justice court.

¶4 Coincidently, Smith’s appeal was again assigned to Judge
Hruby-Mills. 5 On appeal, Smith refiled the same motion to
suppress evidence that the justice court had granted and the
district court had denied on hearing de novo. In opposing the
motion, the City argued that the matter had already been subject
to a hearing de novo and that consideration of the motion to
suppress a second time in Smith’s trial de novo “would violate
the doctrine of res judicata.” The district court acknowledged
that Smith was “entitled to a trial de novo . . . pursuant to Utah
Code 78A-7-118(1)” and that he was “entitled to have the District
Court hear ‘any pretrial evidentiary matters the court deems
necessary,’ pursuant to rule 38(e)(2) [of the Utah Rules of
Criminal Procedure],” but ultimately the court concluded that
“in this case” it was “not . . . necessary” to hear Smith’s motion
to suppress because “the same [motion] . . . ha[d] previously
been argued before and decided” by the court. Smith now files
this petition for extraordinary relief seeking an order directing
the district court to consider his motion to suppress in the

4. The charge for failure to stay in one lane was dismissed.

5. Apparently in the Salt Lake Department of the Third District
Court, judges are assigned on a rotating basis to hear appeals
from justice courts; at the time of Smith’s appeal, Judge Hruby-
Mills was one of the judges assigned to hear appeals from the
justice court.

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context of a trial de novo and to assign the case to a judge other
than Judge Hruby-Mills. Both the City and Judge Hruby-Mills
(collectively, Respondents) oppose Smith’s petition, arguing that
either res judicata or the law of the case doctrine—or both—bar
Smith from relitigating the motion to suppress as part of his trial
de novo in the district court.

ISSUE AND STANDARD OF REVIEW

¶5 Smith petitions this court for extraordinary relief under
rule 65B(d) of the Utah Rules of Civil Procedure. In his petition,
Smith challenges the district court’s decision not to hear his
motion to suppress on the ground that the court misinterpreted
the applicable statute and prior case law. Under rule 65B,
Smith’s petition may succeed only if “no other plain, speedy and
adequate remedy is available,” Utah R. Civ. P. 65B(a), and upon
showing, among other things, that the district court “abused its
discretion,” id. R. 65B(d)(2).

¶6 The first portion of that standard is established. Because
there is no right of appeal from a district court’s de novo review
of a justice court decision, Smith has no other “plain, speedy and
adequate remedy” from the district court’s decision in these
circumstances, and can therefore seek extraordinary relief by
petition. 6 Id. R. 65B(a). Our decision to grant relief, however,
depends on a number of factors including:

6. Section 78A-7-118 of the Utah Code provides: “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.” Utah Code Ann. § 78A-7-118(9) (LexisNexis Supp.
2015). “[T]he Utah Legislature . . . [by enacting section 78A-7-
118] specifically and intentionally limited the issues that may be
appealed from a district court’s judgment.” State v. Hinson, 966
P.2d 273, 276 (Utah Ct. App. 1998). Because Smith is not
(continued…)

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 Smith v. Hon. Hruby-Mills

the egregiousness of the alleged error, the
significance of the legal issue . . . , the severity of
the consequences occasioned by the alleged error,
and additional factors. The scope of review is
limited to determining whether the respondent [in
this case, the district court judge] has regularly
pursued its authority.

Salt Lake City v. McCleve, 2008 UT 41, ¶ 5, 190 P.3d 1240
(alteration and omission in original) (citations and internal
quotation marks omitted).

ANALYSIS

¶7 We first discuss section 78A-7-118 of the Utah Code,
which provides the processes for both a hearing de novo and
trial de novo of an appeal from a decision made in the justice
court. Next, we consider the doctrines of res judicata and law of
the case and how they may apply in the context of a trial de
novo. We conclude that although law of the case is applicable to
an appeal from justice court, res judicata is not. We then turn to
Smith’s request for extraordinary relief and conclude that the
district court did not abuse its discretion and we therefore deny
Smith the relief he requests.

I. Appeal from a Justice Court Ruling

¶8 Section 78A-7-118 of the Utah Code establishes two types
of appeal from justice court: a trial de novo and a hearing de
novo. See Utah Code Ann. § 78A-7-118 (LexisNexis Supp. 2015).

(…continued)
challenging the district court’s ruling on the constitutionality of a
statute or ordinance, the matter is before this court on a petition
pursuant to Utah Rule of Civil Procedure 65B.

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 Smith v. Hon. Hruby-Mills

¶9 A defendant has a right to a trial de novo in the district
court on appeal from a justice court conviction. Subsections
(1) through (3) govern a defendant’s right to appeal a conviction
and describe the process a defendant must take to obtain a “trial
de novo in the district court.” Id. § 78A-7-118(1)–(3). Subsection
(1) states that “a defendant is entitled to a trial de novo in the
district court [after] . . . (a) sentencing . . . or (b) a plea of guilty or
no contest in the justice court that is held in abeyance,” while
subsections (2) and (3) address particular circumstances related
to the process that are not at issue here. Id. § 78A-7-118(1)(a)–(b);
see also id. § 78A-7-118(2)–(3). Smith has appealed his conviction
after his justice court sentencing.

¶10 A defendant in some circumstances and the prosecution
in other circumstances also have a right to a hearing de novo in
the district court after an adverse ruling, generally where
important rights are involved that cannot be remedied by the
defendant through a trial de novo or would not be remedied at
all by the prosecution. Id. § 78A-7-118(4)–(6). For example, under
subsection (4) a defendant “is entitled to a hearing de novo in the
district court” from a justice court’s decision to revoke probation,
to enter “a judgment of guilt” for violation of the terms of a plea
in abeyance and any sentence entered after the entry of such a
judgment, or to deny “a motion to withdraw a plea.” Id. § 78A-7-
118(4)(a)–(d). Under subsection (5), the prosecution “is entitled
to a hearing de novo” from a justice court decision that would
halt or seriously impede the prosecution of the case, such as an
order “holding invalid any part of a statute or ordinance,” an
order allowing the defendant to “withdraw a plea of guilty or no
contest,” and certain orders that essentially end the prosecution
as a matter of law, including a “final judgment of dismissal,” “an
order arresting judgment,” and “an order terminating the
prosecution” on the basis of “double jeopardy or denial of a
speedy trial.” Id. § 78A-7-118(5)(a)–(d), (g). As relevant to the
circumstances here, the prosecution may appeal “a pretrial order
excluding evidence.” Id. § 78A-7-118(5)(e). Subsection (5) states

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that “[t]he prosecutor is entitled to a hearing de novo in the
district court on . . . a pretrial order excluding evidence, when
the prosecutor certifies that exclusion of that evidence impairs
continued prosecution of a class B misdemeanor,” such as the
class B misdemeanor DUI charged in this case. Id. § 78A-7-
118(5)(f). 7

¶11 The question here is whether under this statutory scheme
Smith is entitled to relitigate, as part of his district court trial de
novo, the motion to suppress evidence that the district court
resolved against him in a hearing de novo originated by the City
in the course of the justice court process. The concept of the trial
de novo as “a complete retrial upon new evidence,” Pledger v.
Cox, 626 P.2d 415, 417 (Utah 1981) (citation and internal
quotation marks omitted), where the defendant has “a new
opportunity to have a trier of fact review the case unfettered by
prior factual findings,” Taylorsville City v. Adkins, 2006 UT App
374, ¶ 6, 145 P.3d 1161, arguably is broad enough on its face to
encompass the sort of “fresh start” that Smith argues ought to
include a rehearing on his motion to suppress evidence, free
from the burden of the district court’s prior decision on the
hearing de novo, see, e.g., Bernat v. Allphin, 2005 UT 1, ¶ 31, 106
P.3d 707 (“The outcome of the prior justice court proceeding
plays no part in the trial de novo . . . .”); Pledger, 626 P.2d at 416
(“The words ‘de novo,’ mean[] literally ‘anew, afresh, a second
time.’” (citation omitted)); State v. Hinson, 966 P.2d 273, 275–76
(Utah Ct. App. 1998) (recognizing that in a trial de novo “the
proceedings begin anew in the district court”). But the City
argues that the doctrines of res judicata and law of the case

7. Subsection (e) of the same subsection provides that the
“prosecutor is entitled to a hearing de novo in the district court”
when a justice court’s suppression order “prevents continued
prosecution of an infraction or class C misdemeanor.” Utah
Code Ann. § 78A-7-118(5)(e) (emphasis added).

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preclude such a result. We first determine that res judicata does
not apply under the circumstances of a trial de novo from a
justice court conviction. We then conclude that a district court
considering an appeal on trial de novo from a justice court
conviction is neither irretrievably bound by a prior decision on a
hearing de novo, as the City argues, nor required to rehear the
matter over again, as Smith contends. Rather, we conclude that
the second branch of the law of the case doctrine applies, which
gives the district court judge some discretion to rehear or
reconsider prior decisions made on hearing de novo in the
course of the trial de novo process but does not require the court
to do so.

II. Res Judicata

¶12 Respondents argue that the doctrine of res judicata bars
Smith from relitigating his motion to suppress—specifically, the
doctrine’s issue preclusion branch. See generally Macris & Assocs.,
Inc. v. Neways, Inc., 2000 UT 93, ¶¶ 19–20, 16 P.3d 1214
(recognizing that “[t]he doctrine of res judicata embraces two
distinct branches: claim preclusion and issue preclusion,” and
explaining the difference between the two branches). We
conclude that the doctrine of res judicata does not apply in the
context of this case. Issue preclusion applies only when the
following four elements are met:

(i) the party against whom issue preclusion is
asserted must have been a party to or in privity
with a party to the prior adjudication; (ii) the issue
decided in the prior adjudication must be identical
to the one presented in the instant action; (iii) the
issue in the first action must have been completely,
fully, and fairly litigated; and (iv) the first suit
must have resulted in a final judgment on the
merits.

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Collins v. Sandy City Board of Adjustment, 2002 UT 77, ¶ 12, 52
P.3d 1267 (citation and internal quotation marks omitted).

¶13 The elements of res judicata assume that there has been a
“prior adjudication,” a “first action,” or a “first suit”; in other
words, by implication, the prior decision sought to be applied
must have occurred in a case other than the one in which a party
seeks to give it effect. However, as we discuss more fully in the
next section, “a trial de novo before a district court is more
properly regarded ‘as but an enlarged, fact-sensitive part of a
single, continuous course of judicial proceedings during
which . . . a defendant receives more—rather than less—of the
process normally extended to criminal defendants in this
nation.’” Bernat, 2005 UT 1, ¶ 26 (quoting Justices of Boston Mun.
Court v. Lydon, 466 U.S. 294, 309 (1984)). Accordingly, for
purposes of res judicata, a trial de novo and an earlier hearing de
novo in the same case are part of a single case; the hearing de
novo is thus not a prior action that “resulted in a final judgment
on the merits.” See Collins, 2002 UT 77, ¶ 12 (citation and internal
quotation marks omitted); see also Bradbury v. Valencia, 2000 UT
50, ¶ 9, 5 P.3d 649 (“For an order or judgment to be final, it must
dispose of the case as to all the parties, and finally dispose of the
subject-matter of the litigation on the merits of the case.”
(emphasis, citation, and internal quotation marks omitted)).
Rather, a trial de novo is part of a single, continuous process and
therefore the justice court portion of the proceedings is not a
prior case for purposes of res judicata.

¶14 As a result, decisions made in hearings de novo do not
meet the requirements for application of the issue preclusion
branch of res judicata.

III. Law of the Case Doctrine

¶15 “Law of the case is a legal doctrine courts apply when
refusing to readdress an issue previously decided in the same
case.” State v. O’Neil, 848 P.2d 694, 697 (Utah Ct. App. 1993),

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abrogated on different grounds by State v. Doporto, 935 P.2d 484
(Utah 1997). “The policy behind the doctrine is that in the
interest of economy of time and efficiency of procedure, it is
desirable to avoid the delays and the difficulties involved in
repetitious contentions and rulings upon the same proposition in
the same case.” Id. (citation and internal quotation marks
omitted); see also IHC Health Services, Inc. v. D & K Mgmt., Inc.,
2008 UT 73, ¶ 26, 196 P.3d 588 (“[U]nder the law of the case
doctrine, a decision made on an issue during one stage of a case
is binding in successive stages of the same litigation.” (citation
and internal quotation marks omitted)). We explained further:

The doctrine of law of the case has two branches.
The first branch requires an issue decided by an
appellate court be followed in all subsequent
proceedings in the same case . . . unless . . . the
decision was clearly erroneous and would work a
manifest injustice. This serves the dual purpose of
protecting against the reargument of settled issues
and assuring the adherence of lower courts to the
decision of higher courts. The second branch advises
that a court should not reconsider and overrule a
decision made by a co-equal court. The second branch
neither mandates blind adherence to earlier rulings
nor does it rise to the dignity of res judicata or stare
decisis. In short, a trial court has significantly more
discretion to reconsider an issue decided by a co-
equal court.

O’Neil, 848 P.2d at 697 (omissions in original) (emphases added)
(citations and internal quotation marks omitted).

¶16 Under our bifurcated justice court appeal system, the
hearing de novo process seems analogous to the usual context in
which the first branch of the law of the case doctrine applies,
also known as the mandate rule. See Thurston v. Box Elder County,
892 P.2d 1034, 1037–38 (Utah 1995) (“One branch of the doctrine,

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 Smith v. Hon. Hruby-Mills

often called the mandate rule, dictates that pronouncements of
an appellate court on legal issues in a case become the law of the
case and must be followed in subsequent proceedings of that
case.”). In the context of a hearing de novo, the justice court is a
lower court that must adhere to the decision of the higher-level
district court. Accordingly, under the first branch of the law of
the case doctrine, the decision of the district court is binding on
the justice court, just as the mandate of an appellate court would
conclusively bind the district court in all further proceedings. See
id.

¶17 Relying on this analogy, Respondents essentially argue
that, like an appellate decision, the district court’s decision on a
hearing de novo must “be followed in all subsequent
proceedings in the same case,” see O’Neil, 848 P.2d at 697
(citation and internal quotation marks omitted), including any
trial de novo in the district court. But the Utah Supreme Court
has recognized that “[l]aw of the case terminology has been
applied to a number of distinct sets of problems, each with a
separate analysis.” Thurston, 892 P.2d at 1037. So although one
set of problems involves judicial review by an appellate court
and the subsequent application of the mandate rule, see id. at
1037–38, another “set of problems involves the respect that one
judge or panel owes to the rulings of another judge or panel in a
co-equal or coordinate court in the same or a closely related
case,” id. at 1037 n.2. This passage describes the second branch of
the law of the case doctrine that we identified in O’Neil. And we
view the circumstances of a trial de novo as more akin to the “set
of problems” involved in the second branch of our law of the
case doctrine, where a coequal or coordinate court is reviewing a
prior ruling of another coequal or coordinate court, not further
proceedings on remand following a true appeal, where the
mandate rule applies. See id.

¶18 In this regard, the role of the district court changes once
the defendant appeals from a conviction in the justice court. At
that point, the matter passes completely out of the realm of the

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 Smith v. Hon. Hruby-Mills

justice court, and the district court is no longer making decisions
that govern the proceedings of a lower court as it was in the
context of the hearing de novo where its decisions amounted to a
mandate to the justice court. In other words, a district court in a
trial de novo does not stand in the same position with respect to
its own prior ruling in a hearing de novo that a court does in a
proceeding following a remand from an appellate court. Rather,
in the context of a trial de novo, the district court is acting on the
same level as the district court who conducted the earlier
hearing de novo. Both courts conduct a plenary reconsideration
of a proceeding from the same lower court, and the relationship
between the two courts is more accurately characterized as
horizontal rather than vertical. See Bernat v. Allphin, 2005 UT 1,
¶ 26, 106 P.3d 707 (stating that “a trial de novo before a district
court is more properly regarded ‘as but an enlarged, fact-
sensitive part of a single, continuous course of judicial
proceedings’” (quoting Justices of Boston Mun. Court v. Lydon, 466
U.S. 294, 309 (1984))). As such, on trial de novo the district court
is more properly seen as a coordinate trial court, coequal in
authority with the district court that ruled on the prior hearing
de novo, and not as a superior court whose rulings “must be
followed in subsequent proceedings of that case.” See Thurston,
892 P.2d at 1037–38.

¶19 Thus, once at the trial de novo stage, a hearing de novo is
not analogous to an interlocutory appeal, as Respondents argue,
but is instead much more like a prior proceeding in the district
court on the same case. As a consequence, once the case moves
from the justice court to the district court, the first branch of the
law of the case doctrine no longer applies; rather, the second
branch, which imposes less constraint on a district court judge’s
ability to change a prior ruling than does the first, comes into
play. At that point, the law of the case only “advises that a court
should not reconsider and overrule a decision made by a co-
equal court,” because “a trial court has significantly more
discretion to reconsider an issue decided by a co-equal court.”

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 Smith v. Hon. Hruby-Mills

O’Neil, 848 P.2d at 697 (emphasis added) (citation and internal
quotation marks omitted). For example, a judge may revisit
decisions already made in a case if “there has been an
intervening change of controlling authority[,] . . . when new
evidence has become available[,] or . . . when the court is
convinced that its prior decision was clearly erroneous and
would work a manifest injustice.” Thurston, 892 P.2d at 1039
(citations omitted); see also 21 C.J.S. Courts § 238 (2016) (“The law
of the case does not have the inexorable effect of res judicata, and
does not preclude a court from reconsidering an earlier ruling, if
the court believes that the ruling was probably erroneous and
that more harm would be done by adhering to the earlier rule
than from the delay incident to reconsideration.” (footnotes
omitted)).

¶20 As a consequence, we reject both Smith’s argument that
the fresh start inherent in a trial de novo nullifies any earlier
decision of the district court in a hearing de novo and
Respondents’ argument that such decisions can never be
reconsidered. The Utah Supreme Court has recognized “that the
term de novo means literally anew, afresh, a second time.”
Bernat, 2005 UT 1, ¶ 30 (citation and internal quotation marks
omitted). The court has also described a trial de novo on appeal
from justice court as a “complete retrial upon new evidence . . .
wherein the case is tried in the district court as if it originated
there.” Id. (citation and internal quotation marks omitted). But
Bernat also describes “a trial de novo before a district court” as
“more properly regarded ‘as but an enlarged, fact-sensitive part
of a single, continuous course of judicial proceedings.’” Id. ¶ 26
(quoting Lydon, 466 U.S. at 309). And that makes sense. As we
have explained, the hearing de novo process provides ready
access to district court de novo review of certain justice court
decisions that could not effectively be addressed on trial de
novo, such as the granting of a motion to suppress evidence, as
in this case, that would have seriously impaired the City’s ability
to proceed with the prosecution. That decision is binding on the

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 Smith v. Hon. Hruby-Mills

justice court. But there is nothing in the plain language of section
78A-7-118 that requires a complete reconsideration of every
decision already made in the district court during the justice
court process, and such an approach seems inconsistent with the
goal of providing a streamlined, relatively expeditious, and
simpler process for appeals by justice court defendants. Id. ¶ 15
(noting that the concept of appeal through trial de novo
implicitly accepts a lack of finality in exchange for a “simple and
speedy” process (quoting Colten v. Kentucky, 407 U.S. 104, 118–19
(1972)).

¶21 Rather, application of the second branch of the law of the
case doctrine promotes these goals, preventing wholesale
reconsideration of decisions already made, while providing the
district court with the flexibility to revisit prior decisions in the
interest of justice. For instance, it makes little sense to require as
a matter of course that a district court’s decision interpreting a
statute (as where the validity of a statute or ordinance is
challenged on rehearing de novo) or finding facts (as in the
hearing de novo of most motions to suppress) be done over on
trial de novo by the same or another district court. But it may
make sense to do so when, for example, the law or the evidence
has evolved in the meantime or a party can establish that more
harm than good will flow from adhering to the prior ruling. And
the law of the case permits this sort of flexibility, without
requiring repeated “do-overs” simply as a matter of form. See
Thurston, 892 P.2d at 1039. 8

8. It follows from our decision here that assignment of a judge
different from the one who heard a hearing de novo is neither
required nor prohibited. The law of the case contemplates that
the same judge may be presiding at a point in the proceedings,
such as a trial de novo, when a defendant may request
reconsideration of a prior decision. And there is no reason to
question the ability of such a judge to impartially fulfill that role.
(continued…)

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 Smith v. Hon. Hruby-Mills

IV. Smith’s Request for Relief

¶22 Smith petitioned for extraordinary relief under rule 65B.
See Utah R. Civ. P. 65B. “[R]ule 65B(d) is the equivalent of a
common law petition for a writ of mandamus and provides the
equivalent remedy.” Hogs R Us v. Town of Fairfield, 2009 UT 21,
¶ 11, 207 P.3d 1221. “The common law writ of mandamus was
designed to compel a person to perform a legal duty incumbent
on him by virtue of his office or as required by law.” Id. (citation
and internal quotation marks omitted). “Though a plaintiff may
request the district court to direct the exercise of discretionary
action, the writ is not available to direct the exercise of judgment
or discretion in a particular way.” Id. (citation, emphasis, and
internal quotation marks omitted). The granting of relief is

(…continued)
Cf. In re Inquiry Concerning a Judge, 2003 UT 35, ¶ 6, 81 P.3d 758
(per curiam) (“[T]he fact that a judge may have views on a
particular issue or that a judge adopted a particular point of
view or interpretation of the law in a prior case does not
constitute bias or prejudice.”). Certainly, neither the statute nor
the rule require that a judge assigned to a trial de novo not have
been involved in the case before. In fact, it is quite possible that a
district court judge involved in hearings de novo during the
course of the justice court case may be assigned to the trial de
novo on appeal from a justice court conviction. This is
particularly true in judicial districts in less populous areas of the
state. Judges routinely reconsider decisions as a result of, for
example, a trial court’s decision to grant a new trial or an
appellate remand for a new trial or other proceedings. Smith has
pointed us to no authority that holds that in such cases the judge
who originally ruled in a hearing de novo must be replaced for
the subsequent trial de novo, nor has he claimed that Judge
Hruby-Mills harbors any particular bias or prejudice related to
this case.

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 Smith v. Hon. Hruby-Mills

discretionary, and “[u]nlike a party filing a direct appeal, a
petitioner seeking rule 65B(d) extraordinary relief has no right to
receive a remedy that corrects a lower court’s mishandling of a
particular case.” State v. Barrett, 2005 UT 88, ¶ 23, 127 P.3d 682.
“The question of whether to grant a petition for extraordinary
relief lies within the sound discretion of this court.” Snow,
Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 22, 299 P.3d
1058.

¶23 Rule 65B provides that “[w]here no other plain, speedy
and adequate remedy is available, a person may petition the
court for extraordinary relief on any of the grounds” identified
in the rule. Utah R. Civ. P. 65B(a). We may grant extraordinary
relief where the lower court has, among other things,
“(A) . . . exceeded its jurisdiction or abused its discretion;
(B) . . . failed to perform an act required by law as a duty of
office, trust, or station; [or] (C) . . . refused the petitioner the use
or enjoyment of a right or office to which the petitioner is
entitled.” Id. R. 65B(d)(2). The grounds for relief that are
relevant to the present matter are enumerated in subsection
(A), which addresses the wrongful use of judicial authority. Id.
R. 65B(d)(2)(A). In this regard, “[w]here the challenged
proceedings are judicial in nature, the court’s review shall not
extend further than to determine whether the respondent has
regularly pursued its authority.” Id. R. 65B(d)(4). “Extraordinary
relief may be available upon a showing that the lower court has
exceeded its permitted range of discretion, and a mistake of law
may constitute such an excess.” Salt Lake City v. McCleve, 2008
UT 41, ¶ 5, 190 P.3d 1240. Importantly, however, even “if a
petitioner is able to establish that a lower court abused its
discretion, that petitioner becomes eligible for, but not entitled
to, extraordinary relief.” Barrett, 2005 UT 88, ¶ 24. The granting
of relief under rule 65B turns on “multiple factors,” including,
but not limited to, “the egregiousness of the alleged error, the
significance of the legal issue presented by the petition, the
severity of the consequences occasioned by the alleged error, and

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[any] additional factors.” Id.; see also McCleve, 2008 UT 41, ¶ 11
(concluding that “extraordinary relief is warranted” where “the
district court’s error . . . was not egregious, [but] the legal issue is
significant; [and] there are many similar cases pending in the
district courts which raise this very issue”).

¶24 Here, the district court denied Smith the opportunity to
relitigate his motion to suppress because it concluded as a matter
of law that Smith was not entitled “to have the District Court
hear again . . . the same Motion to Suppress that ha[d]
previously been argued before and decided by the District
Court.” In reaching this conclusion, the district court relied upon
rule 38(e)(2) of the Utah Rules of Criminal Procedure and stated
that “in this case [the court] does not deem it necessary” to hear
Smith’s motion to suppress. Rule 38 provides the process for
appeals from justice court to district court and specifically states
that “[d]iscovery, the trial, and any pre-trial evidentiary matters
the court deems necessary, shall be held in accordance with these
rules.” Utah R. Crim. P. 38(e)(2) (emphasis added). In this
context, the district court’s decision is reasonably understood as
a determination that revisiting the motion was not necessary
because Smith had not demonstrated that there was a change in
the law or in the evidentiary landscape, that the prior decision
was clearly incorrect, or that adhering to the prior ruling would
yield more harm than good. Thus, the district court was justified
in exercising its discretion not to hear the motion again.

¶25 Smith has not persuaded us that the district court abused
its discretion in finding that it did not need to rehear the motion.
Both the City and Smith had the opportunity to present their
most compelling argument to the district court at the hearing de
novo regarding the justice court’s ruling that granted Smith’s
motion to suppress evidence. Smith had a full opportunity at
that hearing to argue why the traffic stop was unlawful and why
the evidence obtained after the stop should be suppressed before
the district court. Smith submitted briefing on the issue and
cross-examined the City’s only witness. After briefing,

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testimony, and argument from both the City and Smith, the
district court denied Smith’s motion to suppress and remanded
the case to the justice court. See Utah Code Ann. § 78A-7-118(7)
(LexisNexis Supp. 2015). Additionally, in his reply brief, Smith
acknowledges that the law of the case doctrine as discussed in
Thurston v. Box Elder County, 892 P.2d 1034 (Utah 1995), “permits
reconsideration of rulings which are clearly incorrect or that
would work a manifest injustice if left undisturbed,” but on
appeal he has not pointed us to any portion of his motion to
suppress that argues either a change of controlling authority or
any newly discovered evidence. (Citing Thurston, 892 P.2d at
1038–39.) Instead, Smith only argues that he “is entitled to have
his motion to suppress heard in the de novo appeal so his
counsel has the opportunity to advocate fully for him as the
evidence may come out under the law as it stands at the time of
the hearing.”

¶26 Given that the exceptions to the law of the case doctrine
contemplate at least a change of some significance in the facts,
the law, or the argument even under the flexible approach we
have outlined here, we cannot say that the district court either
misapplied the law or abused its discretion in determining that it
was not “necessary” to rehear Smith’s motion. It is not apparent
on the record whether Smith presented anything to the district
court that triggered consideration of such an exception or
whether the district court understood that it had flexibility to
reconsider the motion to suppress under the law of the case
doctrine. See id. at 1039 (providing for reconsideration of a prior
decision under the law of the case where “there has been an
intervening change of controlling authority,” “new evidence has
become available,” or “the court is convinced that its prior
decision was clearly erroneous”).

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CONCLUSION

¶27 We conclude that, while the second branch of the law of
the case doctrine gives the district court discretion to reconsider,
in the context of a trial de novo, a decision made by the same or
a different judge in an earlier hearing de novo in the same case,
Smith has failed to persuade us that the district court abused its
discretion by declining to do so here. As a result, because Smith
has failed to persuade us that the court abused its discretion or
that his request for extraordinary relief is otherwise merited, we
deny his petition.

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