(concurring in part, dissenting in part):
¶ 18 I concur with the lead opinion’s conclusion that a trial de novo in a district court may not always be a “plain, speedy[,] and adequate remedy.” Utah R. Civ. P. 65B(a). I also agree with the lead opinion’s recognition of Newman’s right to petition, for an extraordinary writ and the trial court’s hearing and ruling thereon, although-1 would not limit the right to petition for an extraordinary writ to “truly exceptional” circumstances. However, I.believe that the ordinance unconstitutionally conflicts with the Utah assault, statute. See Utah Const, art. XI, § 5 (granting cities the authority “to adopt and enforce within its limits ... regulations not in conflict with the general law”).
¶ 19 The lead opinion notes- that “ordinances passed by municipalities are valid unless they are inconsistent or conflict with state law,” Salt Lake City v. Roberts, 2000 UT App 201,¶ 4, 7 P.3d 789, rev’d on other grounds, 2002 UT 30, 44 P.3d 767, and that “[mjunieipal ordinances and state law are not inconsistent when they share a common purpose and are ‘closely related in subj'ect matter.’ ” Id. (quoting Salt Lake City v. Allred, 20 Utah 2d 298, 437 P.2d 434, 437 (1968)). Moreover, the lead opinion also recognizes *1012that “an ordinance is in conflict if it forbids that which the statute permits.” Richfield City v. Walker, 790 P.2d 87, 91 (Utah Ct.App.1990) (quotations and citation omitted). However, the lead opinion nevertheless concludes that the ordinance does not constitutionally conflict with the statute because the ordinance does not “forbidf ] that which the statute permits.” Id. (quotations and citation omitted).
¶ 20 While I agree with the lead opinion that the ordinance may not be inconsistent with the statute, the ordinance plainly conflicts with the statute, which, unlike the ordinance, requires that an act constituting the State equivalent of battery “cause[] bodily injury to another or create[] a substantial risk of bodily injury to another.” Utah Code Ann. § 76 — 5—102(l)(c) (2003). By omitting the injury, or substantial risk of injury, element of the offense, the City has forbidden activity that the statute permits. Under the proper circumstances, a person could be convicted of battery under the ordinance for bodily contact that under the statute would be considered innocuous.
¶ 21 Because the justice court allowed the City to proceed with its charge against Newman under an unconstitutional ordinance, the court lacked subject matter jurisdiction. See State v. Norris, 2004 UT App 267, ¶ 7, 97 P.3d 732 (“Because a facial challenge to the constitutionality of a statute directly cuts to the power and authority of the court to determine a controversy, it is necessarily a jurisdictional matter.” (quotations and citation omitted)), cert. granted, 106 P.3d 743 (Utah 2004). Furthermore, because the justice court proceeded under an unconstitutional ordinance, and thereby lacked subject matter jurisdiction, the trial court should have granted Newman’s petition for extraordinary relief. See Utah R. Civ. P. 65B(d)(2)(A) (“Appropriate relief may be granted: (A) where an inferior court ... has exceeded its jurisdiction' or abused its discretion.... ”).
THORNE, Judge(concurring and dissenting):
¶ 22 I concur with the result reached in Judge Jackson’s opinion, but do so with one reservation. This case presents itself as an appeal from the district court’s rejection of Newman’s argument for a writ of mandamus. The State, however, did not cross-appeal to argue that the trial court erred in accepting the writ and reviewing its merits. Thus, the propriety of that decision is not properly before us. Considering the State’s failure to cross-appeal, we ordinarily would not address the subject of mandamus. But if we are to address the issue, as the lead opinion does here, we should inform the trial court that accepting the writ was an error under these circumstances.
¶ 23 Over 100 years ago, the United States Supreme Court explained that “[t]he general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary remedy, may not be done with it. It only lies when there is practically no other remedy.” Ex parte Rowland, 104 U.S. 604, 617, 26 L.Ed. 861 (1882). Soon thereafter, the Utah Supreme Court noted that
[mjandamus will not lie when there is a remedy by appeal or writ of error, — that is, it will not take the place of an appeal or a writ of error — and is not the proper remedy to be resorted to to compel an inferior court or judicial tribunal to reverse a decision already made, and the writ does not lie to revise judicial action. The relator must show that he cannot appeal, to make out a right to a mandamus.
State v. Booth, 21 Utah 88, 59 P. 553, 555 (1899) (quotations and citation omitted). Time has not altered this view of mandamus relief. For instance, the Tenth Circuit Court of Appeals recently held that “the remedy of a future appeal from a final judgment ... is inadequate and therefore justifies mandamus only when the appeal is totally unavailable or when it cannot correct extraordinary hardship because of the particular circumstances.” In re Commercial Fin. Servs., Inc., 97 Fed.Appx. 238, 239 (10th Cir.2004) (per curiam) (alterations in original) (quotations and citations omitted). The exceptional circumstances that permit mandamus relief in criminal cases are extremely limited, and they are comprised of writs to confine a district court to the lawful exercise of its discretion or to compel it to exercise its *1013proper jurisdiction. See Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). In the absence of one of these circumstances, “appellate review should be postponed ... until after final judgment has been rendered by the trial court.” Id. at 96, 88 S.Ct. 269. Finally, our own Utah Supreme Court long ago held that although the decision to grant a writ of mandamus is largely at the court’s discretion, “mandamus is not a proper procedure to test the constitutionality of a statute.” L.J. Mueller Furnace Co. v. Crockett, 63 Utah 479, 227 P. 270, 272 (1924). However, the court also cautioned that “there may be cases in which the constitutional question involved is so clear and free from doubt and the relief demanded so meritorious, that the court in the interest of justice should exercise its discretion by granting the writ.” Id. at 273-74 (noting also that “the writ of mandate should not be granted where there is a plain[,] speedy, and adequate remedy at law”); see also Richards v. Weber County Irrigation Dist., 63 Utah 298, 225 P. 600, 602 (1924) (“It is elementary that a writ of mandate will not issue when there is another plain, speedy, and adequate remedy.”).
¶24 Newman has yet to be convicted in this case, but if he is he has a “plaint,] speedy, and adequate remedy at law,” and therefore he should be precluded from seeking relief through a writ of mandamus. L.J.Mueller, 227 P. at 274. Newman’s existing remedy, frankly, provides him with a greater potential for relief from a conviction than he would have with a traditional appeal in this court. See Bernat v. Allphin, 2005 UT 1, ¶¶ 21, 26, 106 P.3d 707. If he is convicted, he has the right to seek a trial de novo in the district court, an opportunity that allows him to evaluate the. strengths of the State’s case, and to design his defense to meet a case he has already seen. See Utah Code Ann. § 78-5-120(1) (2002). The State must then prove, beyond a reasonable doubt, that he is guilty, a task that will be made more difficult because of Newman’s ability to anticipate the State’s case.
¶25 In his lead opinion, Judge Jackson seems to suggest that the trial court properly accepted the writ because of what can only be described as a potentially upsetting collateral consequence that could result if Newman is convicted. Newman faces the possibility of losing his possible military career. I do not believe that this constitutes such a compelling need as to warrant mandamus relief. While Newman may well encounter such a sanction, he must first be convicted, which is certainly not a foregone conclusion. Then, the military must institute proceedings, which may result in sanctions at the military’s discretion. Moreover, Newman has the opportunity to challenge directly any conviction that may occur, rather than through a writ of mandate. In my opinion, if the relief available to Newman upon his conviction is sufficiently inadequate to warrant the acceptance of his writ, then we face a deluge of similar writs from defendants who have yet to be convicted. Each of these writs will complain of similar collateral consequences — possible job loss, denial or revocation of a professional license, damage to reputation — and each of them will have a trial de novo in the district court as its only appellate option if the defendant is convicted. I do not think that the majority intends such a result, nor do I believe that such a result is supported by case law; but that result seems destined to occur with today’s opinion.
¶26 Furthermore, although Newman’s writ seeks to prevent possible future collateral consequences, it does so by attacking the trial court’s pretrial ruling concerning the constitutionality of a city ordinance. Making such a ruling, whether or not correct, lies squarely within the trial court’s discretion, and ought not be subject to. attack through the filing of a mandamus writ. See L.J. Mueller, 227 P. at 272.
¶ 27 As articulated by Judge Jackson, the statute is constitutional. Thus, Newman’s petition does not present a claim that is “clear and free from doubt,” nor is the relief he requests “so meritorious, that the court in the interest of justice should exercise its discretion by granting the writ.” Id. at 273-74. Consequently, although the question is not properly before this court, I believe that the trial court erred in accepting the writ and addressing its merits., I also believe that the majority’s position on the availability of mandamus relief is at odds with existing ease law. *1014Because we need not address the issue at all, the opinion should not address the propriety of Newman’s writ.1
¶ 28 Finally, I believe that Judge Jackson’s analysis concerning the constitutionality of the Salt Lake City ordinance is sound. Accordingly, I concur in his conclusions regarding the ordinance. However, I dissent from the majority’s decision to address the propriety of Newman’s writ, and, assuming that the question was properly before us, from its conclusions that the writ is a proper vehicle to challenge the trial court’s ruling.
. Moreover, the circumstances that Newman argues merit our review of his writ are not sufficiently extraordinary in scope to warrant the examination of his criminal trial in such a piecemeal fashion. See Will v. United States, 389 U.S. 90, 93 n. 2, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (noting that the court of appeals below had found that " 'the order subject of the petition is not an appealable order, and a review of it would offend the policy against piecemeal appeals in criminal cases' ” (citation omitted)). Instead, Newman's case, like most criminal cases, is better reviewed as a whole if he is convicted.