Brooks v. A.S.

Associate Chief Justice NEHRING,

concurring in judgment:

22 I respectfully concur in the judgment only. I disagree with the majority's interpretation of Utah Code section 78B-6-111. I believe the statute is ambiguous and therefore I would use the doctrine of constitutional avoidance to hold that section 111 applies only to conduct committed in-state.

123 First, unlike the majority, I do not believe the statute is elucidated by recourse to the expressio unius est exclusio alterius canon.8 The majority's strained use of that canon makes it abundantly clear that though antiquated latin maxims are sometimes "useful guides," they make very "poor masters" and "should not be regarded as having any such rigidity as to ... distort an otherwise natural meaning or intent.9 The statute states that it applies to "conduct de-seribed in [Chapter 5, Part 4 of the Criminal Code], regardless of whether" such conduct is "formally" charged or results in a "con-viet[ion]." 10 The natural reading of this language is precisely the opposite of what the majority concludes.11 In other words, the clearest way to read the statute as a whole is to say that the relevant conduct need not be susceptible to a formal charge and need not result in a conviction. Surely the legislature did not add the "conviet[ion}" caveat in order to get at innocent fathers-rather, it seems likely that they added that word to indicate that the provision applies to conduct, separate and independent of the requirements of criminal procedure. Yet the majority cites the expressio unius canon to conclude that the "regardless" clause somehow means that the conduct must meet every requirement for a formal charge except that of actually being charged.12 This seems to me a highly unnatural way to read the statutory language.

{24 Canons of construction "are not formulaic, dispositive indicators of statutory meaning. They are merely tools that guide our construction of statutes in accordance with common, ordinary usage and understanding of language...." 13 The majority employs expressio unius to read into the statute a requirement that "all matters suffi*715cient to sustain a 'formal{ ] charge[ J' or 'con-vietlion] must be established." 14 I do not agree with that interpretation. I think the majority has placed more weight on the canon of expressio unius than the concept can reasonably bear. The majority's use of the expressio unius canon forces it to diverge significantly from the common, ordinary way one would read section 111, and I cannot agree with that analysis.

4 25 Second, I cannot join the majority in its analysis of the "presumption against extraterritorial effect." 15 While there may be a presumption against applying statutes ex-traterritorially, Utah Code section 78B-6-111 is not being applied extraterritorially. It is being applied within the state of Utah to a Utah adoption proceeding. The majority's reasoning on this point strikes me as both unpersuasive and deeply concerning. The notion that Utah adoption statutes are applied "extraterritorially" when they are applied to nonresident parents is dangerous and inaccurate. We have long held that Utah adoption law properly controls an adoption within the state and I cannot join the majority's suggestion to the contrary. I also object, generally, to the idea that we should delve into the supposed "backdrop" against which legislators make law.16 Unlike the majority in this case and Nevares, I would not ascribe any "intuitive sense" to the Utah Legislature,17 but would instead rely on our well-established rules of statutory interpretation, chief among which is that the "best evidence of the legislature's intent is the plain language of the statute itself." 18

126 Mr. Brooks does not directly address whether section 78B-6-111 applies to unwed fathers whose conduct in conceiving a child occurred outside of Utah, beyond stating that "Pennsylvania law should apply"-a statement that enjoys no "reasoned analysis" or relevant authority,19 but on the basis of which the majority "deem([s]" the issue both "preserved" and "adequately briefed." 20 Though Mr. Brooks only barely raised the argument, the majority notes that "appellees, in their brief, responded ... at some length." 21 In my view, it is not fair to allow an appellant to "dump the burden of argument and research" 22 on his opponent and the court. Though I would reach the question of section 111's applicability as necessary to the resolution of the case, I would not characterize this issue as preserved 23 or adequately briefed, because it was neither.

27 I would hold that Utah Code section 78B-6-111 is ambiguous. When construing ambiguous statutes, we attempt to "avoid interpretations that conflict with relevant constitutional mandates." 24 This is a reflection of our duty to read "validity, constitutionality and sense" into an ambiguous statute, "if possible." 25 But we must employ the *716principle of constitutional avoidance cautiously. Over-zealous use of constitutional avoidance runs the risk of trampling on the intent of the legislature. In other words, "in the guise of judicial restraint the Court ought not to intrude upon the other branches." 26 Though a statute may present a serious constitutional problem, this alone "ought not to drive [the court] to an incorrect interpretation of the statute." 27 Therefore, the constitutional doubt rule must only be used when a statute is susceptible to competing constructions that are "fairly possible."28 While I believe this is such a situation, I think the majority's use of the doctrine is inappropriate. The doctrine poses a great risk of misuse, and should only be employed when the court finds that a statute is genuinely susceptible to two constructions-but the majority does not do this. In my view, the majority should first acknowledge the statute's ambiguity and proceed with a constitutional avoidance analysis from there. The majority does the legal community a disservice by purporting to entertain two conflicting methods of statutory interpretation.29 The statute is either ambiguous or it is not. I believe it is.

128 There are two ways of viewing Utah Code section 78B-6-111. It could be read simply to apply to those who commit conduct that meets the elements of any of the twelve listed "sexual offenses" described in Chapter 5, Part 4, of the Utah Criminal Code.30 But it could also be read to apply only to conduct that would actually be capable of prosecution as a crime in Utah,. Section 111 states that

[a] biological father is not entitled to notice of an adoption proceeding, nor is [his] consent ... required in cases where it is shown that the child who is the subject of the proceeding was conceived as a result of conduct which would constitute any sexual offense described in Title 76, Chapter 5, Part 4, regardless of whether the biological father is formally charged with or convict ed of a criminal offense.31

Here, the word "would"-which implies conditionality 32-is ambiguous. The use of "would" could be read to indicate that the section applies to any father who conceives a child by way of the conduct listed in Chapter 5, Part 4, wherever it occurs. But the word "would" might have been included to reflect the fact that the statute applies to conduct that "would" be a crime "regardless" of whether the father were formally charged and convicted in Utah-and thus the statute might mean that the relevant "conduct" must at least be susceptible to formal charges in Utah, meaning it would have to occur either "wholly or partly" in Utah.33 In other words, the statutory language can plausibly be read to apply to either (1) any conduct that simply fits the descriptions contained in Chapter 5, Part 4 of the Utah Criminal Code, regardless of where that conduct occurred; or (2) conduct that is actually capable of prosecution as a crime in Utah, meaning conduct which was *717committed wholly or partly in the state of Utah-regardless of whether the conduct was formally charged.34

4 29 I would hold that Utah Code section 78B-6-111 is ambiguous, and would thus proceed under the doctrine of constitutional avoidance to conclude that section 111 must be read to apply only to in-state conduct.35 If Utah Code section 78B-6-111 is read to apply to conduct that occurs outside of Utah, it poses a serious constitutional problem. The Due Process Clauses of the Fifth and Fourteenth Amendments "impose[ 1 constraints on governmental decisions which deprive individuals of 'liberty' or (property' interests.36 $ Individuals have a right to fair notice37 and an opportunity "to be heard before being condemned to suffer grievous loss of any kind."38 Moreover, the more important the threatened interest, the more vigorous the procedural protection that is required under the law. The loss of one's children is one of the most "grievous" losses a person can suffer, and indeed, it is "plain beyond the need for multiple citation" that a parent's interest in his or her children is "far more precious than any property right."39

30 Because an unwed father's act of engaging in sexual conduct in his home state is almost certainly done without notice that he will be subject to the adoption laws of another state, I believe that section 111 poses a serious due process problem if it is applied to such out-of-state fathers, especially where section 111 simply cuts off the father's parental rights. Mr. Brooks, for example, committed criminal conduct under Pennsylvania law when he engaged in sexual intercourse with the child's mother; however, under Pennsylvania law it appears that he may still have been able to intervene in a subsequent adoption proceeding, despite the eriminal cireum-stances of the conception.40 Thus, under the law of Pennsylvania-the only state whose laws he had notice would be applied to him, Mr. Brooks's parental rights were not foreclosed at the threshold as they would be under section 111 in Utah. Recognizing the fundamental nature of the parental right, I would avoid such problems by adopting the second, equally plausible interpretation of section 111 and holding that it applies only to conduct within Utah.

{31 I disagree with the majority's interpretation of Utah Code section 78B-6-111. Because I believe the statute is ambiguous, I would analyze it under the doctrine of constitutional avoidance. Accordingly, I respectfully concur in the judgment only.

. Because the relevant analysis in the instant case is. incorporated by reference but actually appears in a separate case that also issued today, Nevares v. M.L.S., 2015 UT 34, 345 P.3d 719, I will cite Nevares throughout. See supra 115 ("'We reverse on the ground that section 111 does not apply in this case. This conclusion follows from our analysis in Nevares .... "); see also supra 116 (summarizing and incorporating the Nevares analysis, without additional explanation).

. Salt Lake City v. Salt Lake Cnty., 568 P.2d 738, 741 (Utah 1977). See also Buack's Law Dictionary 661-62 (Oth ed. 2009) ("Several Latin maxims masquerade as rules of interpretation while doing nothing more than describing results reached by other means. The best example is probably expressio unius est exclusio alterius, which is a rather elaborate, mysterious sounding, and anachronistic way of describing the negative implication. Far from being a rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes 'it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of context." (second emphasis added) (internal quotation marks omitted)).

. Urax Coorg § 78B-6-111 (emphasis added).

. See id.; supra ¶ 15; Nevares, 2015 UT 34, 132, 345 P.3d 719.

. Supra ¶ 16; Nevares, 2015 UT 34, ¶¶ 30-32, 345 P.3d 719.

. Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 19, 248 P.3d 465.

. Supra ¶ 16 (alterations in original); Nevares, 2015 UT 34, ¶ 30, 345 P.3d 719.

. Nevares, 2015 UT 34, ¶¶ 345 P.3d 719; supra ¶ 16.

. Nevares, 2015 UT 34, ¶ 36, 345 P.3d 719; supra ¶ 16 (incorporating Nevares analysis).

. Nevares, 2015 UT 34, ¶ 36, 345 P.3d 719.

. Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, 114, 267 P.3d 863 (internal quotation marks omitted).

. Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 25, 254 P.3d 161 (warning that to "satisfy our adequate briefing requirement," a brief "must go beyond providing conclusory statements and fully identify, analyze, and cite its legal arguments" (internal quotation marks omitted)).

. Supra ¶¶ 10-11.

. Supra ¶ 11.

. Hess, 2011 UT 22, ¶ 25, 254 P.3d 161 (internal quotation marks omitted).

. See Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 ("An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on [it]." (alteration in original) (internal quotation marks omitted)). Because Mr. Brooks's due process argument was preserved, I would hold that we can address the question of Utah Code section 78B-6-111's applicability because it "bears upon the ultimate resolution" of an issue that has "properly been preserved" and is thus "necessary to a proper decision." Id. ¶¶ 18, 20.

. State v. Mooney, 2004 UT 49, ¶ 12, 98 P.3d 420 (internal quotation marks omitted).

. Munsee v. Munsee, 12 Utah 2d 72, 363 P.2d 71, 72 (1961); see also Utah State Rd. Comm'n v. Friberg, 687 P.2d 821, 831 (Utah 1984).

. Zadvydas v. Davis, 533 U.S. 678, 705, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (Kennedy, J., dissenting); Utah Dep't of Transp. v. Carlson, 2014 UT 24, ¶ 24, 332 P.3d 900 ("[Flor the constitutional avoidance canon to even apply, the statute must be genuinely susceptible to two constructions ...." (internal quotation marks omitted)).

. Zadvydas, 533 U.S. at 705-06, 121 S.Ct. 2491 (Kennedy, J., dissenting).

. Id. at 707, 121 S.Ct. 2491 (internal quotation marks omitted).

. I fail to see why the court would want to set out multiple mutually-exclusive theories of statutory meaning in order. to "elucidatle} multiple points that combine to persuade the court of the basis for its conclusion." Supra ¶ 16 n. 5. One correct theory is persuasive enough. The court should simply "say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)-not provide three different theories of what the law might be.

. See Utan Cope §§ 76-5-401 to -415 (outlining twelve criminal sexual offenses, including "unlawful sexual activity with a minor," "rape," "rape of a child," "object rape," "forcible sodomy," "forcible sexual abuse," "aggravated sexual assault" and other related crimes).

. Id. § 78B-6-111 (emphasis added).

. Wesster's THirp New Int't Dictionary 2637-38 (1961) (defining the word "would" and explaining that it is used "to express a contingency or a possibility").

. Urag Cope §§ 78B-6-111, 76-1-201. I believe this ambiguity stems from the phrase "would constitute." As explained, I do not agree that *717the expressio unius canon has any relevance here.

. See Utan Cope § 76-1-201(5)(c) (explaining that the "burden is upon the state to initially establish jurisdiction over [a criminal} offense ... by showing ... the offense was committed either wholly or partly within the borders of the state").

. To that extent, I agree with the majority in this case and Nevares, that a "serious due process question{ ] would arise" if Mr. Brooks's parental rights were to be forfeited by section 111. Nevares, 2015 UT 34, ¶ 41, 345 P.3d 719; see supra ¶ 16.

. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

. Mathews, 424 U.S. at 333, 96 S.Ct. 893.

. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (internal quotation marks omitted).

. See 23 Pa Cons. Stat § 2711(a) (2014) (stating that "consent to an adoption shall be required of ... [t}he parents or surviving parent of an adop-tee who has not reached the age of 18 years"); id. § 2714 ("Consent of a parent to adoption shall not be required ... if, after notice and hearingl,] ... the court finds that grounds exist for involuntary termination ...."); id. § 2511(a)(7) (2014) (grounds for involuntary termination include when "the parent is the father of a child conceived as a result of a rape or incest"); 18 Pa. Cons § 3121(a) (2014) (defining rape as sexual intercourse "by forcible compulsion," "threat of forcible compulsion," or when the person is unconscious, substantially impaired, or mentally disabled); id § 3122.1(a) (2014) (defining "[s}tatutory sexual assault" and explaining that "[except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is ... four years older but less than eight years older than the complainant" (emphasis added)).