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¶ 8 For reasons discussed below, our statement of the facts are those to which the parties admit either in the district court or in this appeal. Dell, a Texas-based company, sells computers through direct marketing. Customers place orders directly with Dell. Dell ships the purchased computers from Texas and Tennessee. In addition to the computers, Dell markets service contracts. ¶ 9 Dell attached what it alleges are the Rogers invoice and the Fab Seal acknowledgment to its motion to dismiss or compel arbitration. Dell also attached a document taken from one of its internet pages and entitled Terms and Conditions of Sale. [3] Dell did not attest to the accuracy of any of these attachments or to the alleged fact that these documents were sent to plaintiffs. Further, there is nothing in the record about how the plaintiffs ordered the computers, whether over the internet, by mail, or by phone. Likewise, there is nothing in the record about the processes and conversations between Dell and the plaintiffs when they placed their orders or whether the plaintiffs were required to consent to the Terms and Conditions of Sale when placing the orders. ¶ 10 We assume for purposes of discussion only that the plaintiffs received the representative Terms and Conditions of Sale document either with the invoice and acknowledgment, with the shipment of the computer, or both. The arbitration provision included in the Terms and Conditions of Sale document, if received and if enforceable, would require the plaintiffs to submit their claims against Dell or its affiliates to binding arbitration.
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¶8 We first consider whether the plain language of the Utah Administrative Procedures Act (UAPA)7 necessarily incorporates standards of review so as to preclude application of our wellestablished approach to mixed questions of law and fact. Second, we consider whether the Commission’s application of the law to the facts of Mr. Murray’s case involved discretion, which would 1 Murray v. Labor Comm’n, 2012 UT App 33, ¶¶ 1, 4, 271 P.3d 192. 2 Id. ¶¶ 9–21. 3 Id. ¶ 14. 4 Id. ¶¶ 39–41. 5 State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096. 6 Id. 7 UTAH CODE §§ 63G-4-101 to -601. 3 MURRAY v. LABOR COMMISSION Opinion of the Court qualify it for an “abuse of discretion” standard of review on appeal. Finally, we consider whether the court of appeals erred in concluding that Mr. Murray failed to establish that his workrelated accident, rather than his preexisting back condition, was the legal cause of his injury. I. UNDER A PLAIN-LANGUAGE INTERPRETATION OF UAPA, SECTION 63G-4-403 INCORPORATES STANDARDS OF REVIEW FOR SOME, BUT NOT ALL, AGENCY ACTION AND DOES NOT FORECLOSE OUR TRADITIONAL APPROACH FOR DETERMINING THE APPROPRIATE STANDARD OF REVIEW ¶9 The court of appeals relied on UAPA to determine which standard of review applies in this case,8 concluding that, under our UAPA precedent, “questions of law and mixed questions of law and fact are generally reviewed for correctness.”9 It also recognized an exception to this correctness standard that applies when “the [L]egislature has either explicitly or implicitly granted discretion to the agency to interpret or apply the law.”10 Relying on this approach, the court determined that when a statute delegates discretion to an agency, it must review the agency’s action for an abuse of discretion.11 ¶10 Mr. Murray contends that we have effectively overruled the approach relied on by the court of appeals. He points out that in Drake v. Industrial Commission12 and Salt Lake City Corp. v. Labor Commission,13 which both involved Commission decisions, we employed our traditional approach for determining the appropriate standard of review. Under this approach, we first characterize the “issue as either a question of fact, a question of law, or a mixed question requiring application of the law to the facts” and then apply the corresponding level of deference to the 8 Murray v. Labor Comm’n, 2012 UT App 33, ¶ 11, 271 P.3d 192. 9 Id. ¶ 12. 10 Id. (internal quotation marks omitted). 11 Id. 12 939 P.2d 177 (Utah 1997). 13 2007 UT 4, 153 P.3d 179. 4 Cite as: 2013 UT 38 Opinion of the Court decision under review.14 Mr. Murray claims that we should follow the same approach here and review his case as a traditional mixed question of law and fact. ¶11 The court of appeals faced a difficult decision in this case given our inconsistent precedent on UAPA standards of review. The court was certainly correct that UAPA applies to Mr. Murray’s case. Because Mr. Murray seeks relief from the Commission’s order denying him compensation benefits, we agree that UAPA governs our review of his claims on appeal.15 But under the interpretation of UAPA we announce below, we disagree that UAPA necessarily forecloses our traditional approach for determining the appropriate standard of review. ¶12 In Morton International, Inc. v. Tax Commission, we stated that UAPA “incorporates standards that appellate courts are to employ when reviewing allegations of agency error.”16 We derived these standards from what is now section 63G-4-403 of UAPA, which addresses judicial review of formal adjudicative proceedings.17 Specifically, we considered what standard of review UAPA requires for an agency’s interpretation or application of the law under what is now section 63G-4- 403(4)(d).18 We concluded that UAPA incorporated a correctness standard for an agency’s “interpretation or application of a statutory term.”19 We further concluded that the only exceptions 14 Drake, 939 P.2d at 181. 15 UTAH CODE § 63G-4-105(1) (“The procedures for agency action, agency review, and judicial review contained in this chapter are applicable to all agency adjudicative proceedings commenced by or before an agency on or after January 1, 1988.”). 16 814 P.2d 581, 584 (Utah 1991), superseded by statute, UTAH CODE § 59-1-610(1)(b), with regard to administrative decisions by the Tax Commission, as recognized in LPI Servs. v. McGee, 2009 UT 41, ¶ 7, 215 P.3d 135. 17 Id. 18 Id. at 588. 19 Id.; see also SEMECO Indus., Inc. v. Tax Comm’n, 849 P.2d 1167, 1172 (Utah 1993) (Durham, J., dissenting) (discussing Morton’s analysis of subsection 4(d)). 5 MURRAY v. LABOR COMMISSION Opinion of the Court to this correctness standard are those instances where the Legislature has either explicitly or implicitly delegated discretion to an agency to interpret or apply the law.20 If an agency indeed has such discretion, then under our interpretation of UAPA in Morton, we must review the agency’s action for an abuse of discretion.21 ¶13 As the court of appeals recognized in its opinion in this case, we have a significant amount of precedent applying Morton’s interpretation of UAPA.22 But we took a different approach to reviewing agency applications of law to fact beginning with Drake v. Industrial Commission. In Drake, we analyzed the “special errand” rule to determine whether an employee was injured within the scope and course of her employment for purposes of receiving benefits under the Workers Compensation Act.23 In selecting a standard of review, we turned to State v. Pena, a criminal case that analyzed the level of deference appropriate for a trial court’s determination of a mixed question of law and fact.24 Relying on Pena, we recognized that “[w]hether an employee was injured while on a special errand is . . . [a] highly fact-sensitive [question of law].”25 Thus, we stated it “is a question that we cannot profitably review de novo in every case because we cannot hope to work out a coherent statement of the law through a course of such decisions.”26 We accordingly applied 20 Morton, 814 P.2d at 588. 21 Id.; see also SEMECO Indus., Inc., 849 P.2d at 1172 (Durham, J., dissenting) (discussing subsection 4(d)’s interaction with subsection 4(h)(i) and concluding that “[i]f the specific agency interpretation or application was an exercise of the agency’s statutorily delegated discretion, then under subsection (4)(h)(i) . . . the agency’s interpretation or application of law should receive intermediate deference”). 22 Murray, 2012 UT App 33, ¶ 25. 23 Drake, 939 P.2d at 179–81. 24 Id. at 181 (citing State v. Pena, 869 P.2d 932, 936 (Utah 1994)). 25 Id. at 182. 26 Id. (internal quotation marks omitted). 6 Cite as: 2013 UT 38 Opinion of the Court a standard of review affording some deference to the Commission’s decision.27 ¶14 We later decided Salt Lake City Corp. v. Labor Commission.28 There, we relied on Drake for selecting a standard of review for a Commission decision applying the “going and coming” rule to determine if an employee was injured within the scope and course of employment.29 We characterized the standard of review applied in Drake as “conditionally deferential” and concluded that, like “special errand” cases, Commission decisions concerning the “going and coming” rule also required conditional deference.30 We accordingly adopted and applied Drake’s standard of review in Salt Lake City Corp.31 ¶15 We decided both Drake and Salt Lake City Corp. well after UAPA became applicable in January 1988.32 Yet, in both cases, we failed to mention UAPA or explicitly overrule our interpretation of UAPA in Morton.33 In light of this conflicting precedent on UAPA standards of review, we take the opportunity to clarify our interpretation of UAPA and the role it plays in our selection of a standard of review for agency decisions. 27 Id. 28 2007 UT 4. 29 Id. ¶¶ 13–18. 30 Id. ¶ 15. 31 Id. 32 UTAH CODE § 63G-4-105(1). We decided Drake in 1997 and Salt Lake City Corp. in 2007. 33 In Drake, we recognized in a footnote that applying “the standard enunciated in Pena . . . to an agency’s application of the law to a particular set of facts is a departure from our prior decisions.” 939 P.2d at 181 n.6. We further stated that “we believe the Pena standard is a more accurate measure of the degree of deference to be given to an agency . . . rather than using undefinable labels such as ‘reasonableness.’” Id. But the case we cited as an example of our “prior decisions” is a pre-UAPA case. See id. (citing Tax Comm’n v. Indus. Comm’n, 685 P.2d 1051 (Utah 1984)). 7 MURRAY v. LABOR COMMISSION Opinion of the Court ¶16 Our decision in Morton seems to take for granted that section 63G-4-403 necessarily “incorporates standards that appellate courts are to employ when reviewing allegations of agency error.”34 Whether section 63G-4-403, in fact, incorporates standards of review presents a question of statutory interpretation. “When interpreting a statute, our goal is to give effect to the legislature’s intent and purpose.”35 “We ascertain the legislature’s intent by looking to the statute’s plain meaning . . . .”36 “Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.”37 “For this reason, our interpretation of a statute requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.”38 Finally, “[i]f the language of the statute yields a plain meaning that does not lead to an absurd result, the analysis ends.”39 ¶17 Section 63G-4-403 governs judicial review of “final agency action resulting from formal adjudicative proceedings.”40 Subsection (4) allows an appellate court to “grant relief only if . . . it determines that a person seeking judicial review has been substantially prejudiced” by certain agency actions. Section 63G-4- 403(4)(a) through (h) identifies those agency actions: (a) the agency action, or the statute or rule on which the agency action is based, is unconstitutional on its face or as applied; (b) the agency has acted beyond the jurisdiction conferred by any statute; 34 Morton, 814 P.2d at 584. 35 Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 9, 173 P.3d 166. 36 State v. Bohne, 2002 UT 116, ¶ 15, 63 P.3d 63. 37 State v. J.M.S. (In re J.M.S.), 2011 UT 75, ¶ 13, 280 P.3d 410 (internal quotation marks omitted). 38 Id. (internal quotation marks omitted). 39 Carranza v. United States, 2011 UT 80, ¶ 8, 267 P.3d 912. 40 UTAH CODE § 63G-4-403(1). 8 Cite as: 2013 UT 38 Opinion of the Court (c) the agency has not decided all of the issues requiring resolution; (d) the agency has erroneously interpreted or applied the law; (e) the agency has engaged in an unlawful procedure or decision-making process, or has failed to follow prescribed procedure; (f) the persons taking the agency action were illegally constituted as a decision-making body or were subject to disqualification; (g) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court; (h) the agency action is: (i) an abuse of the discretion delegated to the agency by statute; (ii) contrary to a rule of the agency; (iii) contrary to the agency’s prior practice, unless the agency justifies the inconsistency by giving facts and reasons that demonstrate a fair and rational basis for the inconsistency; or (iv) otherwise arbitrary or capricious. ¶18 While the above provisions clearly set forth and limit the types of agency actions for which appellate courts may grant relief, they do not expressly mandate standards of review courts must employ when reviewing those agency actions. The Legislature does not exhibit a clear intent—in section 63G-4-403 or UAPA generally41—to completely displace our traditional approach for selecting standards of review. Rather, by declining to expressly mandate standards of review for each type of agency action for which we may grant relief, the Legislature suggests the opposite intent to leave much of the normal appellate process in 41 Section 63G-4-102, entitled “Scope and applicability of chapter,” states only that “the provisions of this chapter apply to every agency of the state and govern . . . judicial review of the [agency] action.” Id. § 63G-4-102(1). Section 63G-4-105, entitled “Transition procedures,” merely states that UAPA displaces other “[s]tatutes and rules governing . . . judicial review” of agency action after January 1, 1988. Id. § 63G-4-105(1)–(2). 9 MURRAY v. LABOR COMMISSION Opinion of the Court place.42 Thus, the plain language of section 63G-4-403 clearly sets forth the type of agency actions for which we may grant relief, but it does not expressly mandate the standards of review we must employ when reviewing those actions. ¶19 Certain provisions of section 63G-4-403(4) do, however, imply a standard of review by the way in which the Legislature characterized the agency action. Section 63G-4-403(4)(g), for example, falls into this category. That provision allows us to grant relief for “agency action [that] is based upon a determination of fact . . . that is not supported by substantial evidence.”43 While this provision does not explicitly require a certain standard of review, it characterizes the agency action in such a way that implies a “substantial evidence” standard. This is because we can grant relief under this provision only after reviewing the agency’s determination of fact for a lack of substantial evidence. Sections 63G-4-403(h)(i), (h)(iii), and (h)(iv) also fall into this category. ¶20 Importantly, the Legislature’s characterization of some agency actions in terms of a standard of review is further evidence that it did not intend to completely displace our traditional standard of review framework. This is because the Legislature, while implying a standard of review for some agency actions, did not attempt to define what that standard requires. Thus, even where section 63G-4-403(4)(g) implies a “substantial evidence” standard on appeal, for example, we must look outside UAPA to determine what that standard means. ¶21 But most agency actions listed in section 63G-4-403(4) do not imply a standard of review. Absent this implication, we conclude that the Legislature intended our traditional standards of review to apply. This category of agency action includes section 63G-4-403(4)(d), which allows us to grant relief when an “agency 42 See id. § 63G-4-403(2)(a) (directing “the petitioner [to] file a petition for review of agency action with the appropriate appellate court in the form required by the appellate rules of the appropriate appellate court”); id. § 63G-4-403(2)(b) (stating that “[t]he appellate rules of the appropriate appellate court shall govern all additional filings and proceedings in the appellate court” (emphasis added)). 43 Id. § 63G-4-403(4)(g). 10 Cite as: 2013 UT 38 Opinion of the Court has erroneously interpreted or applied the law.” We stated in Morton that the term “erroneous” connotes a correctness standard for both interpretations and applications of law.44 But we now conclude that subsection (4)(d) does not imply a standard of review. While that provision empowers courts to grant relief when an agency commits an “error” in interpreting or applying the law, the term “erroneous” in this context does not imply a standard of review. Rather, the term simply means “mistaken,” indicating that we may grant relief when an agency misinterpreted or misapplied the law.45 Sections 63G-4-403(4)(a)– (f) and (h)(ii) fall into this category as well. For this category of agency actions, we are free to apply our traditional approach for selecting an appropriate standard of review. ¶22 Based on the above plain-language analysis, we conclude that section 63G-4-403 does not—contrary to our decision in Morton46—incorporate standards of review for each agency action listed in subsection (4). Accordingly, we overrule Morton as far as it is inconsistent with this conclusion. Going forward, the appropriate standard of review of final agency actions will depend on the type of action in question. In some instances, as discussed above, section 63G-4-403 will have characterized the action in such a way that the applicable standard of review will be obvious. But even there, we must turn to our case law to determine how that standard applies. For other agency actions, the applicable standard of review will depend on the nature of the agency action and whether it can be characterized as a question of law, a question of fact, or a mixed question of law and fact.47 Below, we apply this analysis to Mr. Murray’s case to determine the appropriate standard of review on appeal. 44 Morton, 814 P.2d at 587. 45 See WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 423 (1988) (defining “erroneous” as “containing or characterized by error . . . [or] mistaken”). 46 Morton, 814 P.2d at 584. 47 See, e.g., Dep’t of Admin. Servs. v. Pub. Serv. Comm’n, 658 P.2d 601, 608–10 (Utah 1983) (discussing the three traditional standards of review applicable to allegations of agency error). 11 MURRAY v. LABOR COMMISSION Opinion of the Court II. WE CONCLUDE THAT MR. MURRAY’S CLAIM PRESENTS A TRADITIONAL MIXED QUESTION OF LAW AND FACT AND THAT, ACCORDINGLY, THE COMMISSION’S AUTHORITY TO APPLY THE LAW IN THIS CASE IS NOT A DISCRETIONARY ACTION WARRANTING AN “ABUSE OF DISCRETION” STANDARD OF REVIEW UNDER UAPA ¶23 The appropriate standard of review in this case depends on the type of agency action alleged to be erroneous and whether that action incorporates a specific standard of review under section 63G-4-403(4) of UAPA. Mr. Murray contends that the Commission misapplied the Utah Workers’ Compensation Act, specifically section 34A-2-401 of the Utah Code,48 to the facts of his case. His claim for relief accordingly falls under section 63G-4- 403(4)(d), which requires us to determine whether the Commission “erroneously . . . applied the law.” We concluded above that subsection (4)(d) is not the type of agency action that is characterized in such a way as to imply a specific standard of review. We are thus free to apply our traditional approach in selecting the appropriate standard of review for Mr. Murray’s claim. ¶24 The first question under this approach is whether the Commission’s decision “qualifies as a finding of fact, a conclusion of law, or a determination of a mixed question of law and fact.”49 Mixed questions “involv[e] application of a legal standard to a set of facts unique to a particular case.”50 Indeed, in the agency context, we have stated that we “use[] the terms mixed question of fact and law and application of the law interchangeably.”51 Accordingly, Mr. Murray’s claim that the Commission misapplied the law to the facts of his case presents a traditional mixed question of law and fact. 48 This statute provides benefits for employees injured “by accident arising out of and in the course of the employee’s employment.” UTAH CODE § 34A-2-401(1). 49 Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 40, __P.3d__. 50 Id. ¶ 42. 51Morton Int’l, Inc. v. Tax Comm’n, 814 P.2d 581, 586 n.23 (Utah 1991). 12 Cite as: 2013 UT 38 Opinion of the Court ¶25 But the court of appeals determined that section 34A-1- 301 of the Labor Commission Act “constitutes an express grant of authority” for the Commission “to apply the law in workers’ compensation cases.”52 That provision provides that “[t]he commission has the duty and the full power, jurisdiction, and authority to determine the facts and apply the law in this chapter or any other title or chapter it administers.” Thus, the court of appeals concluded that under section 63G-4-403(4)(h)(i) of UAPA, it must review the Commission’s decision to deny Mr. Murray benefits for an abuse of discretion.53 We disagree. ¶26 The court of appeals’ decision was understandable in light of our past decisions concluding that we review an agency’s decision for an abuse of discretion when the Legislature has granted the agency discretion to interpret or apply the law.54 We last considered a delegation of discretion in LPI Services v. McGee.55 There we recognized that “[t]he [L]egislature may grant an agency discretion, either explicitly or implicitly, to interpret specific statutory terms.”56 We have found implicit delegations of discretion where “the operative terms of a statute are broad and generalized” or “there is more than one permissible reading of the statute” and no basis in our rules of construction to prefer one interpretation to another.57 ¶27 We have not clearly articulated what constitutes an explicit delegation of discretion, although we have offered examples. In LPI Services, we suggested that the Legislature explicitly delegated discretion by mandating that “[t]he [Labor] [C]ommission shall establish rules regarding part-time work and offset” to account for a permanently disabled employee’s income 52 Murray v. Labor Comm’n, 2012 UT App 33, ¶ 15, 271 P.3d 192. 53 Id. ¶ 27. 54 See, e.g., Morton, 814 P.2d at 587 (analyzing UTAH CODE § 63G-4-403(h)(i)). 55 2009 UT 41, 215 P.3d 135. 56 Id. ¶ 8. 57 Id. ¶¶ 8, 9 (internal quotation marks omitted). 13 MURRAY v. LABOR COMMISSION Opinion of the Court from medically appropriate part-time work.58 The court of appeals declined, however, to limit explicit delegations of discretion to only those instances where the Legislature directs an agency to define a statutory term by regulation.59 It instead adopted a broader approach, concluding that “an explicit grant of discretion can be found when a statute specifically authorizes an agency to interpret or apply statutory language.”60 The court of appeals has explained that “[w]hen the [L]egislature focuses on a specific statutory term and delegates to the agency the duty to either interpret or apply the term, . . . the agency necessarily is required to interpret the statutory language.”61 ¶28 The above approach to identifying delegations of discretion has proved difficult to apply.62 And we now conclude that it is inconsistent with the interpretation of section 63G-4- 403(4) announced above. Specifically, under the plain language of section 63G-4-403(4), it is inaccurate to say that “authority” means “discretion,” as the court of appeals has done. There is no question that section 34A-1-301 of the Labor Commission Act “constitutes an express grant of authority” for the Commission “to apply the law in workers’ compensation cases.”63 But this grant of 58Id. ¶ 8 (first alteration in original) (internal quotation marks omitted). 59 King v. Indus. Comm’n, 850 P.2d 1281, 1291 (Utah Ct. App. 1993), superseded by statute, UTAH CODE § 34A-1-301, on other grounds, as recognized in Murray, 2012 UT App 33, ¶¶ 17–18. 60 Id. at 1287. 61 Employers’ Reinsurance Fund v. Indus. Comm’n, 856 P.2d 648, 655 (Utah Ct. App. 1993) (Billings & Russon, JJ., concurring in the result) (articulating the holding of the court as to the standard of review), superseded by statute, UTAH CODE § 34A-1-301, on other grounds, as recognized in Murray, 2012 UT App 33, ¶¶ 17–18. 62 See, e.g., Niederhauser Ornamental & Metal Works Co. v. Tax Comm’n, 858 P.2d 1034, 1037 (Utah Ct. App. 1993) (recognizing that “[d]iscerning an implied or explicit grant of discretion from the governing statute is key” to selecting the appropriate standard of review but complaining that doing so “has become an increasingly complex endeavor”). 63 Murray, 2012 UT App 33, ¶ 15. 14 Cite as: 2013 UT 38 Opinion of the Court authority does not turn an agency’s application or interpretation of the law into the type of action that would warrant an “abuse of discretion” standard of review under section 63G-4-403(4)(h)(i). ¶29 We have already recognized in past decisions that “an administrative grant to administer a statute is not to be confused with a grant of discretion to interpret the statute.”64 This is because “all agencies are necessarily granted authority by statute to administer portions of the code.”65 We now go a step further and conclude that, for an “abuse of discretion” standard to apply on appeal, the agency action under review must involve “discretion.” Only then can we properly review the action for an “abuse of discretion,” as required by the plain language of section 63G-4-403(4)(h)(i). ¶30 This conclusion requires us to determine whether the Commission’s decision in this case—a mixed finding of law and fact—is the type of decision that involves discretion. While the term “discretion” within the law defies precise definition,66 the Legislature’s use of the term in section 63G-4-403(4)(h)(i) requires us to assign it at least some characteristics. Commentators have recognized that a basic feature of discretion is “choice.”67 That is, a discretionary decision involves a question with a range of “acceptable” answers, some better than others, and the agency or trial court is free to choose from among this range without regard to what an appellate court thinks is the “best” answer.68 We agree 64 Airport Hilton Ventures, Ltd. v. Tax Comm’n, 1999 UT 26, ¶ 7 n.4, 976 P.2d 1197 (citing approvingly to Belnorth Petroleum Corp. v. Tax Comm’n, 845 P.2d 266, 268 n.5 (Utah Ct. App. 1993)). 65 Belnorth Petroleum Corp., 845 P.2d at 268 n.5. 66 See State v. Pena, 869 P.2d 932, 937 (Utah 1994) (stating that “the term ‘abuse of discretion’ has no tight meaning”); see also Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 SYRACUSE L. REV. 635, 635 (1971) (“To speak of discretion in relation to law is to open a thousand doorways to discussion.”). 67 E.g., Ronald R. Hofer, Standards of Review—Looking Beyond the Labels, 74 MARQ. L. REV. 231, 246 (1991). 68 See Hofer, supra ¶ 30 n.67, at 246 (characterizing discretionary decisions “as involving not right or wrong, but (continued) 15 MURRAY v. LABOR COMMISSION Opinion of the Court with this general characterization of discretion. Accordingly, we conclude that whenever the Legislature directs an agency to engage in this type of decision-making, regardless of whether it does so explicitly or implicitly, it has delegated discretion to the agency within the meaning of section 63G-4-403(4)(h)(i). ¶31 An example of such a delegation can be found in section 54-3-2 of the Utah Code relating to schedules of utility rates and classifications. That section requires public utilities to file with the Public Service Commission (PSC) “schedules showing all rates, tolls, rentals, charges, and classifications collected or enforced.”69 It further provides that “[t]he commission shall have power, in its discretion, to determine and prescribe, by order, changes in the form of the schedules referred to in this section as it may find expedient.”70 Under this provision, the PSC has both authority and discretion to change the form of schedules. Its authority derives from the Legislature’s grant of “power” while its discretion comes from the type of decision-making the Legislature directed the PSC to engage—not the phrase “in its discretion.” ¶32 In order to properly “determine and prescribe, by order, changes in the form of the schedules,” the PSC need only find it “expedient” to do so. There are a range of “acceptable” fact scenarios that the PSC could either accept or reject as being expedient without risking reversal by an appellate court. And the appellate court will review the PSC’s discretionary decision for an “abuse of discretion” to ensure that it falls within the bounds of reasonableness and rationality.71 Reasonableness, in turn, is better or worse” (internal quotation marks omitted)); Maurice Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 176 (1978) (stating that, for discretionary decisions, “appellate courts will allow the trial judge wide scope for decision, free from normal restraints that apply to legal determinations” and that “[t]he trial judge acting in discretion is granted a limited right to be wrong, by appellate court standards, without being reversed”). 69 UTAH CODE § 54-3-2(1). 70 Id. § 54-3-2(3). 71 See generally Dep’t of Admin. Servs. v. Pub. Serv. Comm’n, 658 P.2d 601, 610–11 (Utah 1983). 16 Cite as: 2013 UT 38 Opinion of the Court essentially a test for logic and completeness rather than the correctness of the decision.72 ¶33 Admittedly, our characterization of discretion is broad and in need of refinement through application in future cases. But it adequately demonstrates that the Commission’s action in this case did not involve discretion. As we have already stated, a mixed question arises when an agency or lower court must apply “a legal standard to a set of facts unique to a particular case.”73 Importantly, the question of whether a set of facts falls within a legal standard is itself a question of law.74 And like all questions of law, the question of whether certain facts fulfill a legal standard has a single “right” answer in terms of the trajectory of the law.75 Our precedent on mixed questions simply reflects the idea that we, as an appellate court, are not always in the best position to say what that “right” answer is.76 Thus, in the context of mixed questions, we sometimes afford deference to a trial court’s decision as a matter of institutional competency.77 But the trial 72 Id. at 611 (discussing the “abuse of discretion” standard and stating that “[t]he test of rationality may be simply a matter of logic or completeness”). 73 In re Adoption of Baby B., 2012 UT 35, ¶ 42. 74 See Drake v. Indus. Comm’n, 939 P.2d 177, 181 (Utah 1997) (recognizing “that the legal effect of . . . facts is the province of the appellate courts, and no deference need be given a trial court’s resolution of such questions of law” (internal quotation marks omitted)); see also Hofer, supra ¶ 30 n.66, at 246 (“In a mixed question, the usual formulation describing the nexus between fact and law is that whether the facts fulfill a particular legal standard is itself a question of law.” (internal quotation marks omitted)). 75 Hofer, supra ¶ 30 n.66, at 236–37 (characterizing “law” as “rules and standards [that] optimally should be generally and uniformly applicable to all persons of like qualities and status and in like circumstances, and should be capable of being predicated in advance and which being so predicated, await proof of the facts necessary for their application” (footnote omitted) (internal quotation marks omitted)). 76 See In re Adoption of Baby B., 2012 UT 35, ¶ 42. 77 State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096. 17 MURRAY v. LABOR COMMISSION Opinion of the Court court does not have discretion to reach anything other than the “right” answer. In other words, “discretion” and “deference” are distinct concepts.78 ¶34 Accordingly, we conclude that Mr. Murray’s claim constitutes a traditional mixed question of law and fact and that the Commission’s authority to apply the law in this case is not the type of discretionary action that warrants an “abuse of discretion” standard of review under our plain-language interpretation of UAPA. III. ALTHOUGH THE COURT OF APPEALS APPLIED THE WRONG STANDARD OF REVIEW IN THIS CASE, ITS ERROR WAS HARMLESS, AND WE AFFIRM ITS DECISION TO UPHOLD THE COMMISSION’S ORDER RELATING TO MR. MURRAY’S FAILURE TO ESTABLISH LEGAL CAUSE ¶35 Having determined that the Commission’s decision in this case constitutes a mixed finding of law and fact, we now consider (A) the amount of deference, if any, we should afford its finding on appeal and (B) whether the court of appeals erred in concluding that Mr. Murray failed to establish legal cause. A. The Commission’s Decision was “Law-Like” and Warrants a Nondeferential Standard of Review ¶36 The standard of review we apply when reviewing a mixed question can be either deferential or nondeferential, depending on the following three factors: (1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on “facts” observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that 78 We recognize that our case law has often conflated the distinct concepts of “deference” and “discretion.” See, e.g., Drake, 939 P.2d at 182 (analyzing a mixed question and stating that “the legal standard is one that conveys a measure of discretion to [the Commission] when applying that standard to a given set of facts” (alterations in original) (emphasis added) (internal quotation marks omitted)). But we clarify that in the context of UAPA the two concepts must be treated separately. 18 Cite as: 2013 UT 38 Opinion of the Court cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting [deference] to trial courts. 79 ¶37 We recently analyzed these factors in In re Adoption of Baby B.80 There we recognized that the deference granted under the factors “rests on the notion that the mixed finding is not ‘lawlike’ because it does not lend itself to consistent resolution by a uniform body of appellate precedent” or “is ‘fact-like’ because the trial court is in a superior position to decide it.”81 ¶38 We stated that an example of a mixed finding that warrants deference on appeal is a finding of negligence in a personal injury case.82 A negligence finding is not “law-like” in that it is so factually complex that “no rule adequately addressing the relevance of all [the] facts can be spelled out.”83 And it is “factlike” because a trial court will often “be affected by [its] observation of a competing witness’s appearance and demeanor on matters that cannot be adequately reflected in the record available to appellate courts,” thus placing it in a superior position to assess credibility.84 ¶39 On the other hand, “a finding that a common set of recurring law enforcement practices qualifies as a ‘reasonable’ search or seizure” would warrant nondeferential review.85 Such a finding is “law-like” in that law enforcement and the general public need “a consistent rule established by set appellate precedent.”86 And it is not “fact-like” because the ultimate 79State v. Levin, 2006 UT 50, ¶ 25, 144 P.3d 1096 (internal quotation marks omitted). 80Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, __P.3d__. 81 Id. ¶ 42. 82 Id. ¶ 43. 83 Id. (internal quotation marks omitted). 84 Id. (internal quotation marks omitted). 85 Id. ¶ 44. 86 Id. 19 MURRAY v. LABOR COMMISSION Opinion of the Court determination will often rest on the “general reasonableness” of the facts rather than “the demeanor or credibility” of witnesses.87 ¶40 Based on the above principles, we conclude that the Commission’s decision here that Mr. Murray failed to establish legal cause warrants nondeferential review. Its decision was “lawlike” in that, as in the context of a reasonable search or seizure, the Commission had to decide whether a set of facts qualified as “unusual” for purposes of determining legal cause. It is true that this can potentially be a fact-intensive inquiry. Indeed, we have generally recognized that “whether or not [an] injury arises out of or within the scope of employment depends upon the particular facts of each case.”88 But in this case the facts are not at issue. So the ultimate question is the legal effect of the facts rather than witness credibility or demeanor. In the context of a legal cause analysis for preexisting injuries, the legal effect of a given set of facts depends on their “unusualness.” And “unusualness”—like “reasonableness”—is an objective legal standard that we are in a better position to analyze than the Commission.89 B. Even Applying a Nondeferential Standard of Review, We Agree with the Court of Appeals that the Commission Correctly Concluded that Mr. Murray’s Employment Activity was not “Unusual” ¶41 Although the court of appeals applied the wrong standard of review in this case, its error was harmless. “[H]armless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.”90 We conclude that even if the court of appeals had applied a nondeferential standard of review, its decision regarding the Commission’s order would be the same. ¶42 The court of appeals concluded that Mr. Murray failed to establish legal cause after considering “[Mr.] Murray’s exertion as well as the working conditions that [Mr.] Murray faced at the time 87 Id. 88 Drake v. Indus. Comm’n, 939 P.2d 177, 182 (Utah 1997) (internal quotation marks omitted). 89 Id. at 181. 90 H.U.F. v. W.P.W., 2009 UT 10, ¶ 44, 203 P.3d 943 (alteration in original) (internal quotation marks omitted). 20 Cite as: 2013 UT 38 Opinion of the Court of the accident—including the outside force to which [Mr.] Murray reacted.”91 The court recognized that the standard from our decision in Allen v. Industrial Commission92 required Mr. Murray to demonstrate an “unusual or extraordinary exertion.”93 But it concluded that there was nothing unusual about the exertion required to withstand an unexpected five- to six-inch wave while standing “in an awkward position on an unsteady surface [and] leaning over to unlock a cable while wearing a fifteen-pound service belt and one-pound life jacket.”94 ¶43 But Mr. Murray contends that our holding in Allen applies only to “intentional and exertional workplace activities.” His injury, in contrast, was “for the most part . . . the result of an unexpected and sudden impact or force which knocked and threw him off balance—an impact against which he mostly reacted reflexively.” Mr. Murray argues that for injuries caused by nonexertional factors, it does not make sense to require an unusual exertion. We disagree with Mr. Murray’s view of the Allen standard. ¶44 The Utah Workers’ Compensation Act provides that an employee injured “by accident arising out of and in the course of the employee’s employment . . . shall be paid . . . compensation for loss sustained on account of the injury.”95 We have recognized that “[t]his statute creates two prerequisites for a finding of a compensable injury.”96 “First, the injury must be ‘by accident.’ Second, the language ‘arising out of [and] in the course of employment’ requires that there be a causal connection between the injury and the employment.”97 Only the second prerequisite— causal connection—is at issue here. 91 Murray v. Labor Comm’n, 2012 UT App 33, ¶ 35, 271 P.3d 192. 92 729 P.2d 15 (Utah 1986). 93 Murray, 2012 UT App 33, ¶ 30 (internal quotation marks omitted). 94 Id. ¶ 35; see also id. ¶ 36–37. 95 UTAH CODE § 34A-2-401(1). 96 Allen, 729 P.2d at 18. 97 Id. 21 MURRAY v. LABOR COMMISSION Opinion of the Court ¶45 We have adopted a two-part test for establishing a causal connection. Under that test, a claimant must establish that the conditions or activities of his job were both the medical cause and the legal cause of his injury.98 In this case, the only dispute concerns whether Mr. Murray’s employment activities constituted the legal cause of his injury. If an employee does not have a preexisting condition that causally contributed to his injury, then the medical and legal causation requirements are one and the same, and the employee need only prove medical causation.99 ¶46 But medical and legal causation diverge for an employee with a causally contributing preexisting condition, and here it is undisputed that Mr. Murray had such a condition. In Allen, we held that to prove legal causation, an employee with a preexisting condition must show that “the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition.”100 We recognized that this heightened showing of legal cause is “necessary to distinguish those injuries which . . . coincidentally occur at work because a preexisting condition results in symptoms which appear during work hours without any enhancement from the workplace.”101 ¶47 Our decision in Allen also recognized that the required workplace enhancement is “usually supplied by an exertion greater than that undertaken in normal, everyday life.”102 Allen’s focus on “exertions” is understandable given that the facts of that case involved clear exertions—moving and lifting.103 But our decision in Allen ultimately considered the totality of the circumstances, including the employee’s exertions and the workplace conditions. For example, in Allen, the activity that precipitated the employee’s injury was “moving and lifting several piles of dairy products.”104 But we made clear that 98 Id. at 25. 99 Id. at 26. 100 Id. at 25. 101 Id. 102 Id. 103 Id. at 28. 104 Id. 22 Cite as: 2013 UT 38 Opinion of the Court consideration of this activity must account for “how many crates [of product] were moved . . . , the distance the crates were moved, the precise weight of the crates, and the size of the area in which the lifting and moving took place.”105 The court of appeals applied this approach in American Roofing Co. v. Industrial Commission.106 There the precipitating employment activity involved “unload[ing] a thirty pound bucket of debris out of [a] truck.”107 But the court of appeals’ consideration of the activity included “the weight, together with the manner in which [the employee] lifted the bucket and the fact that the bucket snagged.”108 Accordingly, in determining whether the employment activity that precipitated Mr. Murray’s injury was “unusual” under Allen, we must consider the totality of the circumstances. ¶48 “Unusualness” is an objective standard. We compare the activity that precipitated the employee’s injury with “the usual wear and tear and exertions of nonemployment life.”109 The focus is on “what typical nonemployment activities are generally expected of people in today’s society, not what this particular claimant is accustomed to doing.”110 This question involves two steps: first, we must characterize the employment-related activity that precipitated the employees’ injury, taking into account the totality of the circumstances; and second, we must determine whether this activity is objectively unusual or extraordinary.111 ¶49 While the first step is a matter of fact,112 the parties in this case do not dispute the circumstances surrounding Mr. Murray’s accident. Mr. Murray bent over the edge of the boat, the height of which was slightly above his knees, at a thirty-five to forty degree 105 Id. 106 752 P.2d 912 (Utah Ct. App. 1988). 107 Id. at 913. 108 Id. at 915. 109 Allen, 729 P.2d at 26. 110 Id. 111Price River Coal Co. v. Indus. Comm’n, 731 P.2d 1079, 1082 (Utah 1986). 112 Id. 23 MURRAY v. LABOR COMMISSION Opinion of the Court angle. He was holding the cable and the lock in his left hand and entering the combination with his right. At the time, Mr. Murray was wearing a fifteen-pound service belt and a one-pound inflatable life jacket. As he was in this position, a five- to six-inch wave from another boat’s wake unexpectedly rocked the patrol boat, causing him to lose his balance. ¶50 Mr. Murray steadied himself by shifting his right foot against the side of the boat, grabbing the side of the boat with his right hand, and twisting his body. He immediately felt a slight pain in his lower back, but he nevertheless went on patrol. Accordingly, as the court of appeals recognized, the activity that precipitated Mr. Murray’s injury was the act of steadying himself.113 And we must account for the fact that he was bent over the edge of the boat at a thirty-five to forty degree angle, that he was wearing a fifteen-pound service belt and a one-pound inflatable life jacket, and that the five- to six-inch wave that hit his boat was unexpected. ¶51 Having characterized the totality of Mr. Murray’s precipitating activity, we continue to the next step and determine whether Mr. Murray’s exertion and surrounding circumstances were objectively “unusual or extraordinary.”114 Utah courts have deemed employment activities to be “unusual” or “extraordinary” when they require an employee to endure jumping, lifting great weight, or repetition. For example, in Miera v. Industrial Commission, we concluded that an employee’s “jumps into an eight-foot hole from a four-foot platform at thirty-minute intervals” was unusual.115 And in Crosland v. Industrial Commission, the court of appeals recognized that moving a twohundred-pound sign qualified as an unusual activity.116 Likewise, in Stouffer Foods Corp. v. Industrial Commission, the court of appeals concluded that continually gripping high pressure hoses was unusual.117 But in Schreiber v. Labor Commission, the court of appeals determined that there was nothing unusual about the 113 Murray, 2012 UT App 33, ¶¶ 35–36. 114 Price River Coal Co., 731 P.2d at 1082. 115 728 P.2d 1023, 1024–25 (Utah 1986). 116 828 P.2d 528, 530 n.3 (Utah Ct. App. 1992). 117 801 P.2d 179, 182–84 (Utah Ct. App. 1990). 24 Cite as: 2013 UT 38 Opinion of the Court force of a rubber ball that injured a playground supervisor when it hit her in the back.118 The court noted that “the direct force of the ball was relatively minor, comparable to the jostling one frequently encounters in crowds.”119 ¶52 While the facts of these cases are not directly on point with Mr. Murray’s, they exhibit the objective standard we must apply in this case, which is to determine “what typical nonemployment activities are generally expected of people in today’s society.”120 People are generally not expected to lift twohundred pounds, jump into eight-foot holes, or continually grip a high pressure hose. But they are expected to withstand minor force. ¶53 In light of the above analysis, the court of appeals correctly upheld the Commission’s order in this case. The totality of Mr. Murray’s precipitating activity—both exertional and nonexertional—was not unusual. As the court of appeals recognized, the totality of Mr. Murray’s accident is comparable to nonemployment activities generally expected in today’s society.121 To borrow the court of appeals’ example, people are generally expected to travel in everyday life. They are expected to carry luggage or bags often heavier and less secure than Mr. Murray’s service belt and life jacket. And they are generally expected to encounter bumpy rides in planes or buses and maintain and regain their balance in the process. The unexpected force Mr. Murray experienced, his awkward position, and the service belt and jacket he was wearing when the small wave rocked his boat were not unusual given the unexpected rigors we expect people to endure while traveling with clumsy luggage. We agree with the court of appeals that the “whole” of Mr. Murray’s accident “entailed nothing unusual or extraordinary that could be presumed to have contributed something substantial to increase the risk of injury.”122Accordingly, even applying a nondeferential 118 1999 UT App 376, 1999 WL 33244768, at . 119 Id. (internal quotation marks omitted). 120 Allen, 729 P.2d at 26. 121 Murray, 2012 UT App 33, ¶ 36. 122 Id. ¶ 38. 25 MURRAY v. LABOR COMMISSION Opinion of the Court standard of review, we affirm the court of appeals’ decision to uphold the Commission’s order denying benefits in this case.
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analysis
|
6,387
| 4,537,852
| 1
| 2
|
Petitioner appeals the circuit court’s order denying his motion for a new trial made under Rule 33 of the West Virginia Rules of Criminal Procedure. Rule 33 enables a circuit court to grant a new trial to a defendant if required in the interest of justice. We review a circuit court’s order denying a motion for a new trial for abuse of discretion.7 “Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.”8 “[T]he question of whether a jury was properly instructed is a question of law, and the review is de novo.”9
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standard of review
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6,388
| 2,050,771
| 1
| 4
|
[¶ 13] Joann contends that New Hampshire has jurisdiction over the guardianship petition pursuant to the PKPA and the UCCJEA. As set forth above, the PKPA is not directly at issue where no competing court order is involved. However, the jurisdictional requirements of the PKPA, which are similar but not identical to the UCCJEA, must be met, or the decree risks being denied full faith and credit by courts of other states. See Wambold v. Wambold, 651 A.2d 330, 333 (Me.1994). [¶ 14] Both the PKPA and the UCCJEA provide that a state has jurisdiction over a child custody proceeding if the state is the home state of the child on the date the proceeding is commenced, or was the home state within six months before the date the proceeding is commenced. [6] See 28 U.S.C. § 1738A(c); 19-A M.R.S.A. § 1745. The PKPA and the UCCJEA define the home state as the state in which the child lived with a parent, or a person acting as a parent, for at least six consecutive months immediately before the commencement of a child custody proceeding, and include periods of temporary absence as part of the period. 28 U.S.C. § 1738A(b)(4); 19-A M.R.S.A. § 1732(7). [¶ 15] Immediately prior to the filing of the temporary guardianship petition, Amberley lived in New Hampshire, but for less than six months. Nevertheless, Joann contends that New Hampshire is Amberley's home state because she lived there for almost six months, last attended school there, and had contacts with individuals providing services in the state, such as her physician and the New Hampshire Department of Health and Human Services' workers concerning her truancy. However, this evidence is inadequate because the six-month requirement was not met, due to Joann and Amberley's transitory living situation. New Hampshire cannot be considered Amberley's home state. [¶ 16] When the child has no home state, the PKPA and the UCCJEA require the court to examine whether a sufficiently significant connection and substantial evidence exists to exercise jurisdiction. Pursuant to the PKPA, in the absence of a home state, a state can exercise jurisdiction when it is in the child's best interest because the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence, and substantial evidence is available in the state concerning the child's care. 28 U.S.C. § 1738A(c)(2)(B). The corresponding UCCJEA provision, which does not include the best interest language, states that jurisdiction is proper when the child and at least one parent or a person acting as a parent has a significant connection with the state. 19-A M.R.S.A. § 1745(1)(B)(1). [¶ 17] Diana and Richard B. are residents of Maine. They have had physical custody and care of Amberley since her arrival in this state, and they are the parents of her stepfather. The record indicates that Amberley has visited them on a regular basis in the past, and that she lived and attended school in Maine for periods during 1991-97. Consequently, the significant connection and substantial evidence requirements were satisfied under the UCCJEA and the PKPA, and the Probate Court has jurisdiction over the guardianship petition. See Gabriel W., 666 A.2d at 509-10. [¶ 18] Regarding Joann's claim that venue did not exist, under 18-A M.R.S.A. § 5-205 (1998), venue for guardianship proceedings for minors is in the place where the minor resides or is present. Amberley's presence within Maine was determinative in establishing venue. See Guardianship of Zachary Z., 677 A.2d 550, 552-53 (Me.1996).
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jurisdiction
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6,389
| 1,107,702
| 1
| 4
|
The trial court stated that it lacked jurisdiction over the second action because it was an impermissible successive motion under Rule 60(b). We agree. Rule 60(b) was adopted to allow a trial court to give equitable relief from a final judgment even after the normal procedures of motion for new trial and appeal are no longer available. Rule 60, Ala. R. Civ. P., Committee Comments on 1973 Adoption. There are six reasons a trial court grants relief under Rule 60(b): (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . ., misrepresentations, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Rule 60(b), Ala. R. Civ. P. In Giles v. Giles, 404 So.2d 649, 651 (Ala.1981), we held that the Alabama Rules of Civil Procedure were designed to give some flexibility, particularly in an effort to do what is right and just. [T]rial courts usually have wide discretion in determining whether to grant Rule 60(b) motions, but that discretion is not unbridled. 404 So.2d at 651. The trial courts must balance the desire to remedy injustice against the need for finality of judgments. Rule 60, Committee Comments on 1973 Adoption. Keeping this balance between equity and finality in mind, Alabama courts have clearly and consistently held that post-judgment motions are not to be used as a substitute for appeal. Transcall American, Inc. v. Comtel-Birmingham, Inc., 571 So.2d 1051, 1052 (Ala.1990); Ex parte Dowling, 477 So.2d 400, 404 (Ala. 1985); Pinkerton I, supra; Ex parte Tampling Tile Co., 551 So.2d 1072, 1075 (Ala. Civ.App.1989). Successive Rule 60(b) motions brought on the same grounds are impermissible because they are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b). Wadsworth v. Markel Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005). A motion to reconsider the trial court's denial of a postjudgment motion is barred because after the denial the trial court loses jurisdiction over the action. Ex parte Allstate Life Ins. Co., 741 So.2d 1066, 1070 (Ala. 1999); see also Ex parte Jordan, 779 So.2d 183, 184 (Ala.2000); Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989); Dowling, 477 So.2d at 404. Thus, `when a post-judgment motion is denied, the review of that denial is by appeal, not by a motion to reconsider.' Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649, 651 (Ala.1998) (quoting McAlister v. Deatherage, 523 So.2d 387, 389 (Ala.1988)). Because Pinkerton's second action is its third request for postjudgment relief under Rule 60(b), we must determine whether the second action is in the nature of a motion to reconsider and is therefore an impermissible successive action over which the trial court does not have jurisdiction. In its first Rule 60(b) motion, Pinkerton argued that it was entitled to relief under Rule 60(b)(1) because that court had failed to enter an order granting Pinkerton's motion for a judgment as a matter of law before the expiration of the 90-day pendency period; that failure, Pinkerton alleged, qualified as mistake, inadvertence, surprise, or excusable mistake. At the hearing on the motion, Pinkerton also argued that it might qualify for relief under Rule 60(b)(6). Pinkerton submitted a legal memorandum in support of its argument for relief under Rule 60(b)(6). The trial court denied Pinkerton's motion on the ground that it lacked jurisdiction to entertain the motion. Pinkerton did not appeal that denial. Instead, it filed a second Rule 60(b) motion, in the same trial court, this time seeking relief under only Rule 60(b)(6) and addressing the issue of the trial court's jurisdiction over the motion. We conclude that this second motion operated as a motion to reconsider. Pinkerton's second motion sought relief on the same ground as the first, namely that Pinkerton should not suffer for the first trial court's failure to timely enter the order granting Pinkerton's motion for a judgment as a matter of law. In both motions, Pinkerton cited Rule 60(b)(6) as the basis for relief. By raising the issue of jurisdiction in the second motion, Pinkerton essentially asked the trial court to reconsider its decision on the first motion that it lacked jurisdiction. Therefore, the second motion was an impermissible successive Rule 60(b) motion, and the trial court correctly concluded that it lacked jurisdiction to entertain that second motion. For the same reason, Pinkerton's second action, which seeks relief for a third time on the same ground Pinkerton has asserted twice before, is barred. The trial court hearing the second action correctly concluded that it did not have jurisdiction to entertain the second action. Under the well-established principle of law that a judgment rendered by a court that lacks jurisdiction is a nullity, [5] it would appear that the original trial court's denial of Pinkerton's first Rule 60(b) motion was improper because the trial court purported to deny that motion after the trial court had determined that it lacked the jurisdiction to entertain the motion. It is true that had that trial court initially dismissed Pinkerton's Rule 60(b) motion without prejudice rather than denying it, Pinkerton would have had the option to appeal that dismissal on the question of jurisdiction or, alternatively, to bring the Rule 60(b) motion again in a court of competent jurisdiction; however, Pinkerton did not take either of these actions. Instead, it brought a second Rule 60(b) motion before the same trial court, arguing that the trial court did, in fact, have jurisdiction. In doing so, Pinkerton violated the policy against filing a successive Rule 60(b) motion, which is not to be used as a substitute for an appeal or as a motion for reconsideration. In addition, after Pinkerton lost on appeal to the Court of Civil Appeals from the denial of its second Rule 60(b) motion, it did not appeal to this Court but instead attempted to start the process over by filing a third Rule 60(b) motion as an independent action. Rule 60(b) is not designed or intended to allow parties to circumvent the appeal process and to drag out litigation indefinitely by filing a new motion every time a court decides it does not have jurisdiction over a matter. See Rule 60, Ala. R. Civ. P., Committee Comments on 1973 Adoption (In passing on an attack upon a judgment, the court is given a wide discretion. In exercising this discretion, the court must balance the desire to remedy injustice against the need for finality of judgments.). Therefore, we hold that the trial court in the second action correctly concluded that the second action was a successive Rule 60(b) motion and that the court therefore lacked jurisdiction to entertain the motion.
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jurisdiction
|
6,390
| 4,033,075
| 1
| 3
|
¶3 By its terms, the policy applies only to accidents, occurrences, and losses during the policy period shown in the Declarations which occur within the United States, its territories or possessions, or Canada, or while the motorcycle is being shipped between their ports. The policy further contemplates out of state coverage by providing: An insured person may become subject to the financial responsibility law, compulsory insurance law or similar law of another state or in Canada. This can happen because of the ownership, maintenance or use of your insured motorcycle when you travel outside of your home state. We will interpret this policy to provide any broader coverage required by those laws , except to the extent that other liability insurance applies. No person may collect more than once for the same elements of loss. (Emphasis added). Most importantly, the policy addresses specifically the issue of stacking of UM coverage and links it to the state law of the state in which the accident occurred by providing: Subject to the law of the state of occurrence , we will pay no more than these maximums regardless of the number of vehicles insured, insured persons, claims, claimants, policies, or vehicles involved in the occurrence. (Emphasis added). Thus, the policy limits stacking, but only if the law of the state of occurrence limits stacking. 3 Oklahoma law did not limit stacking. 4 Therefore, under the policy's choice to defer to the law of the state of occurrence regarding stacking, the policy holder was entitled to stack UM coverage. ¶4 The parties and the Court of Civil Appeals became distracted from the policy language by a dispute concerning whether a conflict of law determination should be made according to Oklahoma's conflict of law statute concerning contracts, this Court's case law, or the UM statute found at section 3636 of title 36. There actually is no dispute because the policy provides its own choice of law provision concerning the stacking of UM coverage. Unfortunately, the policy provisions have yet to be given effect by the lower courts. This matter is remanded to the trial court for application of the policy provisions. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CAUSE REMANDED. CONCUR: Reif, C.J., Combs, V.C.J., Kauger, Watt, Edmondson, Colbert, J.J. DISSENT: Winchester, Taylor, Gurich (by separate writing) J.J.
|
analysis
|
6,391
| 2,598,298
| 2
| 2
|
[¶ 25] Mr. Vlahos' sufficiency of the evidence claim is twofold. First, he claims the state relied exclusively on testimony from accomplices or coconspirators and such testimony was not sufficient by itself to support a conviction for conspiracy under Wyoming law. Second, he contends, even if all the witnesses were not accomplices or coconspirators, the only witness whose testimony connected him with acts in furtherance of the conspiracyMr. Buckleywas unquestionably an accomplice or coconspirator. Without corroboration of Mr. Buckley's testimony by other witnesses, Mr. Vlahos argues, there was insufficient evidence to support the conviction. The state contends Mr. Vlahos' underlying premise is incorrect. It asserts a conviction may be upheld under Wyoming law upon the uncorroborated testimony of accomplices. According to the state, no testimony corroborating the testimony of Mr. Buckley or the other witnesses was necessary. [¶ 26] In presenting his arguments, Mr. Vlahos blurs the terms accomplice and coconspirator but argues law applicable to coconspirators. The state for its part ignores the law relating to coconspirators, focusing instead on the law applicable to accomplices. Because these are two distinct concepts involving two distinct rules of law, we provide the following discussion for purposes of clarification. [¶ 27] An accomplice, or accessory before the fact, is a person who knowingly aids or abets in the commission of a felony or who counsels, encourages, hires, commands, or procures a felony to be committed. Wyo. Stat. Ann. § 6-1-201(a) (LexisNexis 2003); Wheeler v. State, 691 P.2d 599, 601 (Wyo. 1984). To fall within this definition of accomplice, a person must actively participate in or encourage the crime and have the intent to accomplish the same criminal end as the principal. Wheeler, 691 P.2d at 601. For a defendant to be convicted as an accomplice, it must be proven that someone committed the substantive criminal offense and the defendant associated himself with and participated in the accomplishment and success of the criminal venture. Virgilio v. State, 834 P.2d 1125, 1127 (Wyo.1992). [¶ 28] Wyoming law is that a conviction may be had upon the unsupported testimony of an alleged accomplice. Vigil v. State, 926 P.2d 351, 360 (Wyo.1996). Thus, in Wyoming as well as in other states that follow the common law, no corroboration of accomplice testimony is required, and a conviction can be sustained on such testimony alone if it is convincing and credible. Ostrowski v. State, 665 P.2d 471, 487 (Wyo. 1983); Filbert v. State, 436 P.2d 959, 960 (Wyo.1968). Application of this principle to the present facts leads to the conclusion that no corroborating evidence was required if the witnesses Mr. Vlahos refers to could be properly characterized as accomplices. [¶ 29] Turning to the question of coconspirators, conspiracy is defined in Wyoming as follows: (a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement. (b) A person is not liable under this section if after conspiring he withdraws from the conspiracy and thwarts its success under circumstances manifesting voluntary and complete renunciation of his criminal intention. Wyo. Stat. Ann. § 6-1-303(a), (b) (LexisNexis 2003). In numerous cases decided in this jurisdiction and elsewhere, the rule has evolved that a coconspirator's out-of-court statement is not sufficient to support a conspiracy conviction; corroborating evidence is required. Jasch v. State, 563 P.2d 1327, 1334 (Wyo.1977). This rule developed because, although such statements are not considered hearsay under W.R.E. 801(d)(2)(E), their use at trial raises concerns about reliability since the declarant is not subject to cross-examination or juror scrutiny. Under the rule, the trial court, prior to admitting the coconspirator statement, must determine independent evidence exists showing (1) a conspiracy existed, (2) the declarant and the defendant were involved in the conspiracy, and (3) the statement was made during the course of and in furtherance of the conspiracy. Jandro v. State, 781 P.2d 512, 521 (Wyo.1989). Mr. Vlahos argues this rule extends not only to a coconspirator's out-of-court statement but to a coconspirator's in-court testimony, such as Mr. Buckley's testimony at his trial. In support of this assertion, he cites Grable v. State, 649 P.2d 663 (Wyo.1982), a case involving use at the defendant's retrial of coconspirator testimony given at his first trial. [¶ 30] In considering whether sufficient evidence supported the conspiracy conviction in Grable, this Court cited the rule that evidence independent of the coconspirator's statement must be presented. We then examined the evidence other than the coconspirator's prior testimony and upheld the conviction on the basis of that evidence. Grable, 649 P.2d at 677. While this Court did not expressly hold that evidence independent of a coconspirator's in-court testimony must be presented, the approach taken might be read to suggest that is so. Courts that have expressly addressed the question, however, have reached a contrary result. [¶ 31] In United States v. Smith, 692 F.2d 693, 697 (10th Cir.1982), the defendant challenged the trial court's admission of a coconspirator's in-court testimony contending that such testimony was proper only after independent evidence showed a conspiracy existed. The court of appeals stated: The flaw in Smith's argument is simply that Rule 801(d)(2)(E) and the cases construing it are irrelevant to the direct testimony of a coconspirator. By definition, hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c) (emphasis added). There is absolutely no need to fit [the coconspirator's] in-court statements into the coconspirator provision of Rule 801(d)(2)(E). [The coconspirator's] testimony constituted sufficient independent evidence of a conspiracy and Smith's participation therein. 692 F.2d at 697-98 (citation omitted). [¶ 32] Faced with the same argument in Laughlin v. United States, 385 F.2d 287, 292 (D.C.Cir.1967), the court said the argument was based on a misunderstanding of the rule requiring evidence independent of a coconspirator's statement to establish a conspiracy existed. That rule, the court said, applies only to out-of-court (i.e., hearsay) statements of a coconspirator. It does not exclude proof of a conspiracy by the direct testimony under oath of a party to it. 385 F.2d at 292 (citation omitted). [¶ 33] Similarly, in United States v. Szabo, 789 F.2d 1484, 1487 (10th Cir.1986), the court upheld a conspiracy conviction over the defendant's objection that it was based upon coconspirator testimony. The court quoted Smith, 692 F.2d at 697-98, for the principle that the requirement of evidence independent of a coconspirator's out-of-court statement does not apply to a coconspirator's in-court testimony and then said: There is no constitutional requirement that such testimony be examined for trustworthiness before being placed before the jury. Rather, the Confrontation Clause, in its optimum application, envisions: [A] personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895).... 789 F.2d at 1487. [¶ 34] These cases are persuasive. Jasch, 563 P.2d 1327, to which the Grable Court cited, involved a coconspirator's out-of-court statement. All the other Wyoming cases requiring independent evidence of conspiracy, except Grable, likewise involved a coconspirator's out-of-court statement where there was no opportunity to cross-examine the declarant or for the jury to assess his reliability. Under those circumstances, evidence independent of the coconspirator's statement corroborating the conspiracy is necessary. For the reasons quoted from Szabo, 789 F.2d at 1487, above, the same concerns do not arise when the coconspirator provides direct testimony at trial. [¶ 35] We hold that independent evidence corroborating a conspiracy is not necessary when a coconspirator appears at trial and presents direct testimony of the conspiracy and the defendant's involvement therein. A coconspirator's in-court testimony is sufficient independent evidence to support a conspiracy conviction. We overrule Grable to the extent it can be read to say such evidence is not sufficient and independent evidence is required even when the coconspirator testifies at trial. [¶ 36] Having attempted to clarify Wyoming law on accomplice statements and coconspirator testimony, we turn to the specific question of whether sufficient evidence supported Mr. Vlahos' conviction for conspiracy to commit aggravated robbery. The standard of review for sufficiency of the evidence issues is well established: When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party's evidence. We have consistently held that it is the jury's responsibility to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. [ Bloomquist v. State, 914 P.2d 812, 824 (Wyo. 1996)]. Williams v. State, 986 P.2d 855, 857 (Wyo. 1999) (some citations omitted); see also Urbigkit v. State, 2003 WY 57, ¶ 44, 67 P.3d 1207, ¶ 44 (Wyo.2003). [¶ 37] Mr. Vlahos identifies five witnesses as accomplices/coconspirators whose testimony against him, he claims, was insufficient to support the conviction absent independent evidence: Mr. Buckley, Mr. Munoz, Mr. Hoskins, Mr. Walters, and Ms. Ross. All these witnesses appeared and testified at trial and were subjected to defense counsel's cross-examination. Because we concluded that coconspirators' in-court testimony as well as accomplices' statements can support a conviction without independent corroborating evidence, it is not necessary for us to consider whether the five witnesses identified by Mr. Vlahos were accomplices or coconspirators. Even if we assume they properly fell into either category, corroborating evidence of their testimony was not required under Wyoming law. [¶ 38] We look first to Mr. Buckley's testimony. He provided direct testimony that he and Mr. Vlahos planned and carried out the bank robbery. He described details of the planning discussions, the robbery itself, and what occurred in its aftermath. The jurors had the opportunity to observe Mr. Buckley, scrutinize his demeanor, and determine for themselves whether he was credible. Apparently, they found his testimony that Mr. Vlahos was involved in planning the robbery credible but were not convinced Mr. Vlahos actually participated in the robbery. Under our rules of law concerning accomplice statements and coconspirator testimony, Mr. Buckley's testimony was sufficient independent of the other evidence presented to support the conviction on the conspiracy charge. [¶ 39] Mr. Haskins, Mr. Walters, and Mr. Munoz each testified that Mr. Vlahos was very much involved in planning the robbery. Mr. Walters testified that Mr. Vlahos was the leader of the plan to rob the bank. Mr. Munoz similarly testified that Mr. Vlahos did most of the talking during the planning discussions. The testimony of these three witnesses, considered in light of the other evidence presented, was sufficient to support the conviction. [¶ 40] Ms. Ross testified that she overheard discussions between Mr. Vlahos and the others concerning robbing a bank. She further testified that, on the day of the robbery, Mr. Vlahos and Mr. Buckley came to her house with a large amount of money which they distributed among themselves and others. Her testimony describing the clothes they were wearing matched the photographs taken by the bank security camera. [¶ 41] We assume the jury duly considered all the testimony and gave it the weight to which it was entitled. Vargas v. State, 963 P.2d 984, 991 (Wyo.1998). Given the substantial evidence from a variety of witnesses of Mr. Vlahos' involvement in an agreement to commit bank robbery, we uphold his conspiracy conviction.
|
sufficiency of the evidence
|
6,392
| 1,729,338
| 1
| 1
|
¶ 89 Resolution of the issues that I will address are questions of law, wherein we provide independent review, but benefiting from the analyses of the court of appeals and the circuit court. Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110. The interpretation of an insurance contract is a question of law. Katze v. Randolph & Scott Mut. Fire Ins. Co., 116 Wis.2d 206, 212, 341 N.W.2d 689 (1984). Whether the economic loss doctrine applies either to a particular type of claim or to a particular fact set presents a question of law. See Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶ 10, 283 Wis.2d 555, 699 N.W.2d 205; Kailin v. Armstrong, 2002 WI App 70, ¶ 43, 252 Wis.2d 676, 643 N.W.2d 132.
|
standard of review
|
6,393
| 4,545,776
| 1
| 1
|
The district court dissolved the marriage of Tammy M. Doerr and Brian P. Doerr. Brian appeals the court’s property division. We affirm.
|
introduction
|
6,394
| 2,273,691
| 2
| 3
|
In their second and third points on appeal, Defendants assert Plaintiffs failed to introduce sufficient evidence of nonuse. As discussed above, there was substantial evidence supporting the trial court's judgment. The trial court was free to credit Lynn and Darren McCullough's testimony that Plaintiffs had used Tract A as their own and that no one else, including Defendants, had used the road on Tract A in the last 40 years. Defendants argue that the foregoing evidence is insufficient because the public's nonuse of Tract A was a result of Plaintiffs' efforts to obstruct public access. Obstruction of a public road is unlawful. Kleeman, 167 S.W.3d at 205. Nonetheless, the baseline for analyzing an abandonment claim under section 228.190.1 is whether the public continued to use the road. Id. Assuming for the sake of argument that Plaintiffs did obstruct public access to the road unlawfully, the focus is on the Defendants' behavior and that of the public at large in determining whether the disputed area was abandoned. Id.; see also, Lee v. Smith, 484 S.W.2d 38, 44 (Mo.App.1972)(while encroachment upon or obstruction of a public highway is an unlawful act ... evidence that access to a public road has been entirely blocked and cut off for ten years and that the encroachment has been submitted to by the public may be taken as evidence that the road has been abandoned.)(citing 39 C.J.S. Highways § 133, p. 1040). In this case, if Defendants or other members of the public had sought to access Tract A and were denied by Plaintiffs, then Plaintiffs' efforts to obstruct access would be relevant. Kleeman, 167 S.W.3d at 206. The evidence, however, shows that Plaintiffs prevented neither Defendants nor any members of the public from accessing Tract A. As a result, there was substantial evidence demonstrating that the public abandoned Tract A. Finally, Defendants assert the road on Tract A could not have been abandoned because Plaintiffs are members of the public and Plaintiffs admit they used the road. Plaintiffs' use of the road on Tract A, however, does not constitute use by the public for purposes of analyzing an abandonment claim under section 228.190.1. Kleeman, 167 S.W.3d at 205 (public road held to be abandoned even though plaintiffs used the disputed land for their cattle operations). The trial court's judgment is not against the weight of the evidence. The judgment is affirmed. All concur.
|
sufficiency of the evidence
|
6,395
| 1,408,643
| 1
| 1
|
Pursuant to Art. 6.1 of the Arizona Constitution, the Commission on Judicial Qualifications has exclusive jurisdiction to investigate the conduct of a judge while he remains a judge. This is the law in most jurisdictions, In re Investigation, 93 So.2d 601 (Fla. 1957), and the rule recommended by the American Bar Association. See Rule 3.1, Standards Relating to Judicial Discipline and Disability Retirement, Professional Discipline for Lawyers and Judges (1979), National Center for Professional Responsibility and The American Bar Association. The lawyer disciplinary agency has jurisdiction over a lawyer for conduct which occurred while a lawyer, as well as jurisdiction over a lawyer who is no longer a judge for conduct that occurred during and prior to the time the lawyer became a judge. See Rule 3.2, Judicial Standards, supra; Florida Bar v. McCain, 330 So.2d 712 (Fla. 1976). As to jurisdiction over an incumbent judge for conduct which occurred prior to becoming a judge, the courts are not in agreement. The Standards for Lawyer Discipline and Disability Proceedings recommend that incumbent judges should not be subject to the jurisdiction of the lawyer discipline agencies, Rule 4.4, Lawyer Standards, supra, and some states follow this rule. See State ex rel. Turner v. Earle, 295 So.2d 609 (Fla. 1974); In re Proposed Disciplinary Action by the Florida Bar Against a Circuit Judge, 103 So.2d 632 (Fla. 1958). We believe, however, the better and more workable practice is that jurisdiction in disciplinary actions should be based upon the position the individual held at the time of the alleged misconduct: [h]ere, we are presented with an action to discipline a person, now serving as a judge, for misconduct committed while he was a lawyer and before he became a judge. Does his position on the bench render him immune to discipline for violation of the Code of Professional Responsibility applicable to all persons licensed to practice law in this state? Respondent argues that since he may not practice law while a judge, he may not be disciplined while a judge for misconduct committed while a lawyer. Although he may not practice law while a judge, he still holds a license to practice law (a qualification he must have to hold the office of judge), he is still a lawyer, and if he has violated the Code of Professional Responsibility he is, as an officer of this court, amenable to discipline . He may not take refuge in a judicial office from discipline for prior misconduct, the effect of which would be removal of one of his qualifications for occupying the refuge. To permit the use of a judicial office as such a sanctuary would be a travesty upon justice. In re Mills, 539 S.W.2d 447, 449-50 (Mo. 1976); see also In re Spriggs, 36 Ariz. 262, 284 P. 521 (1930). We believe that the State Bar Disciplinary Board and its local disciplinary committees have jurisdiction to consider a lawyer's alleged unethical conduct even though the lawyer is now an incumbent judge. It should be noted in this regard that the Supreme Court of Arizona has the exclusive jurisdiction to regulate the admission to the practice of the law and the discipline of those admitted. In the instant case, while we are dealing with the power of the State Bar Disciplinary Board, we are actually talking about our own authority because the Bar Disciplinary Board and its committees are mere arms of this court and can have no greater jurisdiction or authority than this court. See Florida Bar v. McCain, supra, at 714. We conclude that respondent was subject to the jurisdiction of the State Bar of Arizona Disciplinary Board for conduct which occurred before he became a judge.
|
jurisdiction
|
6,396
| 2,690,611
| 1
| 2
|
{¶ 10} As the parties now agree, neither the apportionment board nor board member Budish is a necessary and indispensable party to this action under Civ.R. 19. We do note, however, that it remains better practice in this type of action to name the board and all its members as parties. The Ohio Constitution, Article XI, Section 13 specifies that this court “shall have exclusive, original jurisdiction in all cases arising under this Article” and further notes that if any apportionment plan “made by the persons responsible for apportionment, by a majority of their number” is determined to be invalid by either this court or the United States Supreme Court, “the persons responsible for apportionment by a majority of their number” shall determine a new, constitutionally compliant plan; see also Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (1992) (court resolved declaratory-judgment action involving the constitutionality of an apportionment plan in which the apportionment board was not one of the named parties), and State ex rel. Lehman v. DiSalle, 173 Ohio St. 361, 182 N.E.2d 564 (1962) (court resolved mandamus action challenging state-senate apportionment plan although board was not named a party). {¶ 11} Thus, the merits of relators’ remaining claims are properly before us. Political Neutrality {¶ 12} Pursuant to the Ohio Constitution, Article XI, Section 1, the fivemember apportionment board is responsible for the apportionment of the state for 5 SUPREME COURT OF OHIO members of the General Assembly. The board must establish the boundaries for each of the 99 house districts and 33 senate districts every ten years. The method of apportionment of the state for members of the General Assembly is determined by using a ratio of representation, which is calculated by dividing the whole population of the state, as determined by the federal decennial census, by 99 for the house and by 33 for the senate. Ohio Constitution, Article XI, Section 2. The population of each house and senate district must be substantially equal to the applicable ratio of representation, and in no event shall any district contain a population of less than 95 percent or more than 105 percent of the pertinent ratio. Ohio Constitution, Article XI, Sections 3 and 4. Each house district is entitled to a single representative, and each senate district is entitled to a single senator. Ohio Constitution, Article XI, Section 5. {¶ 13} In assessing relators’ Article XI claims, we must initially determine whether these provisions mandate political neutrality in the reapportionment process. “ ‘Generally speaking, in construing the Constitution, we apply the same rules of construction that we apply in construing statutes.’ ” Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 57, quoting State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 14. The court’s paramount concern in statutory construction is the legislative intent in the statute’s enactment, and to discern this intent, we read words and phrases in context according to the rules of grammar and common usage. State ex rel. Mager v. State Teachers Retirement Sys. of Ohio, 123 Ohio St.3d 195, 2009Ohio-4908, 915 N.E.2d 320, ¶ 14. Consequently, our primary concern in construing Article XI is to determine the intent of the electorate in adopting the article, and to discern that intent, we must examine its text. {¶ 14} The words used in Article XI do not explicitly require political neutrality, or for that matter, politically competitive districts or representational fairness, in the apportionment board’s creation of state legislative districts. 6 January Term, 2012 Unlike Ohio, some states specify in either constitutional or statutory language that no apportionment plan shall be drawn with the intent of favoring or disfavoring a political party. See In re Senate Joint Resolution of Legislative Apportionment 1176, 83 So.3d 597, 615 (Fla.2012), fn. 19, and the state constitutions and statutes cited therein. Therefore, Article XI does not prevent the board from considering partisan factors in its apportionment decision. {¶ 15} Nevertheless, as relators emphasize in their supplemental brief, and as respondents acknowledge in their supplemental response brief, political considerations cannot override the requirements of Article XI. Other states have reached this same conclusion regarding redistricting in their states. See Holt v. 2011 Legislative Reapportionment Comm., 38 A.3d 711, 745 (Pa.2012) (“It is true, of course, that redistricting has an inevitably legislative, and therefore an inevitably political, element; but, the constitutional commands and restrictions on the process exist precisely as a brake on the most overt of potential excesses and abuse”); In re Reapportionment of the Colorado Gen. Assembly, __ P.3d __, 2011 WL 5830123, (Colo.2011) (“Other nonconstitutional considerations, such as the competitiveness of a district, are not per se illegal or improper; however, such factors may be considered only after all constitutional criteria have been met”); In re Legislative Districting of the State, 370 Md. 312, 370, 805 A.2d 292 (2002) (“The constitution ‘trumps’ political considerations. Politics or non-constitutional considerations never ‘trump’ constitutional requirements”). {¶ 16} Therefore, the Ohio Constitution does not mandate political neutrality in the reapportionment of house and senate districts, but partisan considerations cannot prevail over the requirements set forth in Article XI. As long as the 2011 apportionment plan satisfied the constitutional requirements set forth in Article XI, respondents were not precluded from considering political factors in drafting it. See Davis v. Bandemer, 478 U.S. 109, 128, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (plurality opinion), quoting Gaffney v. Cummings, 412 U.S. 7 SUPREME COURT OF OHIO 735, 752-753, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (“ ‘Politics and political considerations are inseparable from districting and apportionment’ ”). And, here, political factors were considered only after the applicable constitutional and other legal requirements were met. Presumption of Constitutionality and Burden of Proof {¶ 17} In assessing the merits of relators’ claims, we defer to the apportionment board’s reasonable construction of the principles expressed in Article XI. Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (1992). “Hence, it is not sufficient in this proceeding that we might be of the opinion that we could make a better apportionment than has been made by the board: To authorize this court to interfere and command the board to make another apportionment, the apportionment made must so far violate the rules prescribed by the constitution, as to enable us to say, that what has been done is no apportionment at all, and should be wholly disregarded. If by any fair construction of the principles prescribed by the constitution for making an apportionment, the one made may be sustained, then it cannot be disregarded and a new one ordered. “ The very fact that the governor, auditor and secretary of state are consociated as a board to apportion the state for members of the general assemb[l]y, shows of itself, that, in the judgment of the framers of the constitution, in applying the rules prescribed, a discretion would have to be exercised, and those officers were selected to exercise it. Whether the discretion conferred on the board, has been wisely or unwisely exercised in this instance, is immaterial in this proceeding. It is sufficient that they had the power under the constitution to make the 8 January Term, 2012 apportionment as they have made it. For the wisdom, or unwisdom, of what they have done, within the limits of the powers conferred, they are answerable to the electors of the state, and no one else.” Id. at 204 (Holmes, J., concurring), quoting State ex rel. Gallagher v. Campbell, 48 Ohio St. 435, 436-437 and 442, 27 N.E. 884 (1891). {¶ 18} In resolving claims contesting the constitutionality of a statute, we presume the constitutionality of the legislation, and the party challenging the validity of the statute bears the burden of establishing beyond a reasonable doubt that the statute is unconstitutional. See State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 24; Ohio Grocers Assn. v. Levin, 123 Ohio St.3d 303, 2009-Ohio-4872, 916 N.E.2d 446, ¶ 11. {¶ 19} Although a board’s apportionment plan is not a statute, the same general principle applies in resolving relators’ attack on the constitutionality of the apportionment plan as that which is applied to attacks on the constitutionality of statutes for the following reasons: {¶ 20} First, Article XI was enacted to permit the apportionment board to perform the duty previously conferred on the General Assembly to apportion seats in the General Assembly. In effect, the apportionment board is performing what was previously a legislative function. See Ely v. Klahr, 403 U.S. 108, 114, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971) (“districting and apportionment are legislative tasks in the first instance”); Arizona Minority Coalition for Fair Redistricting v. Arizona Independent Redistricting Comm., 220 Ariz. 587, 208 P.3d 676 (2009), ¶ 19 (“Not only do enactments that carry the force of law traditionally originate in the legislature, but the process of redistricting is itself traditionally viewed as a legislative task”). 9 SUPREME COURT OF OHIO {¶ 21} Second, as with legislation, a presumption of validity attaches to the apportionment board’s adopted apportionment plan. See Gallagher, 48 Ohio St. at 437, 27 N.E. 884 (apportionment board is vested with discretion to adopt decennial apportionment plan, and “[i]f by any fair construction of the principles prescribed by the constitution for making an apportionment, the one made may be sustained, then it cannot be disregarded and a new one ordered”). “ ‘[I]n the absence of evidence to the contrary, public officers, administrative officers and public authorities, within the limits of the jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully.’ ” State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, ¶ 51, quoting State ex rel. Speeth v. Carney, 163 Ohio St. 159, 186, 126 N.E.2d 449 (1955). {¶ 22} Third, because the people of Ohio placed apportionment authority in the hands of the board, the apportionment plan should be accorded the same, if not greater, consideration as a statute enacted by the General Assembly. It is logical, therefore, to require relators to rebut the plan’s presumed constitutionality by proving beyond a reasonable doubt that the apportionment plan is unconstitutional. {¶ 23} Finally, this standard comports with the standard applied by other state supreme courts in resolving constitutional challenges to a reapportionment plan. See Parella v. Montalbano, 899 A.2d 1226, 1232-1233 (R.I.2006) (challengers to state legislative redistricting statute had the burden of proving that the statute was unconstitutional beyond a reasonable doubt); Logan v. O’Neill, 187 Conn. 721, 729-730, 448 A.2d 1306 (1982) (applying the same burden of proof to a reapportionment plan even though it was not a statute—“Although, here, the legislative action being challenged is not a statute because it is not subject to the approval of the governor, it is entitled to at least the same judicial 10 January Term, 2012 respect as a statute”); McClure v. Secy. of the Commonwealth, 436 Mass. 614, 622, 766 N.E.2d 847 (2002) (plaintiffs challenging constitutionality of legislative redistricting plan could not prevail in the case unless they established beyond a reasonable doubt that it is impossible by any reasonable construction to interpret the redistricting statute in harmony with the state constitution); In re Wolpoff, 80 N.Y.2d 70, 78, 587 N.Y.S.2d 560, 600 N.E.2d 191 (1992) (“A strong presumption of constitutionality attaches to the redistricting plan and we will upset the balance struck by the Legislature and declare the plan unconstitutional” only when it is shown to be unconstitutional beyond a reasonable doubt). {¶ 24} Consequently, the burden of proof on one challenging the constitutionality of an apportionment plan is to establish that the plan is unconstitutional beyond a reasonable doubt. In the absence of evidence to the contrary, we presume that the apportionment board properly performed its duties in a lawful manner. With this burden of proof providing the framework for our analysis, we next address relators’ claims. Ohio Constitution, Article XI, Sections 3, 7, and 10 {¶ 25} Relators assert that the board’s apportionment plan violates the Ohio Constitution, Article XI, Sections 7 and 11. To assist this court in resolving this claim, the parties provided supplemental briefs on whether tension exists among Sections 3, 7, and 10 of Article XI, and if so, how these sections could be harmonized. {¶ 26} As noted previously, we apply the same rules of construction that we apply in construing statutes to interpret the meaning of constitutional provisions. State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 43. We must first review the words and phrases used. Id. {¶ 27} The Ohio Constitution, Article XI, Section 3, provides: 11 SUPREME COURT OF OHIO The population of each house of representatives district shall be substantially equal to the ratio of representation in the house of representatives, as provided in section 2 of this Article, and in no event shall any house of representatives district contain a population of less than ninety-five per cent nor more than one hundred five per cent of the ratio of representation in the house of representatives, except in those instances where reasonable effort is made to avoid dividing a county in accordance with section 9 of this Article. {¶ 28} The Ohio Constitution, Article XI, Section 7, provides: (A) Every house of representatives district shall be compact and composed of contiguous territory, and the boundary of each district shall be a single nonintersecting continuous line. To the extent consistent with the requirements of section 3 of this Article, the boundary lines of districts shall be so drawn as to delineate an area containing one or more whole counties. (B) Where the requirements of section 3 of this Article cannot feasibly be attained by forming a district from a whole county or counties, such district shall be formed by combining the areas of governmental units giving preference in the order named to counties, townships, municipalities, and city wards. (C) Where the requirements of section 3 of this Article cannot feasibly be attained by combining the areas of governmental units as prescribed in division (B) of this section, only one such unit may be divided between two districts, giving 12 January Term, 2012 preference in the selection of a unit for division to a township, a city ward, a city, and a village in the order named. (D) In making a new apportionment, district boundaries established by the preceding apportionment shall be adopted to the extent reasonably consistent with the requirements of section 3 of this Article. {¶ 29} The Ohio Constitution, Article XI, Section 10, provides: The standards prescribed in sections 3, 7, 8, and 9 of this Article shall govern the establishment of house of representatives districts, which shall be created and numbered in the following order to the extent that such order is consistent with the foregoing standards: (A) Each county containing population substantially equal to one ratio of representation in the house of representatives, as provided in section 2 of this Article, but in no event less than ninety-five per cent of the ratio nor more than one hundred five per cent of the ratio shall be designated a representative district. (B) Each county containing population between ninety and ninety-five per cent of the ratio or between one hundred five and one hundred ten per cent of the ratio may be designated a representative district. (C) Proceeding in succession from the largest to the smallest, each remaining county containing more than one whole ratio of representation shall be divided into house of representatives districts. Any remaining territory within such county containing a fraction of one whole ratio of representation 13 SUPREME COURT OF OHIO shall be included in one representative district by combining it with adjoining territory outside the county. (D) The remaining territory of the state shall be combined into representative districts. {¶ 30} In resolving the tension between these constitutional provisions, we note that Article XI of the Ohio Constitution vests the apportionment board with considerable discretion in formulating an appropriate plan. See Ohio Constitution, Article XI, Section 3 (requiring the population of each house district to be “substantially equal to the ratio of representation” [emphasis added]); Article XI, Section 7(A) (requiring house district boundary lines to be drawn so as to delineate an area that contains one or more whole counties “[t]o the extent consistent with the requirements of section 3” [emphasis added]); Article XI, Section 7(B) (requiring that house districts be formed by combining the areas of governmental units in the order specified where Section 3 population requirements “cannot feasibly be attained” by forming a district from a whole county or counties [emphasis added]); Article XI, Section 7(C) (requiring the division of only one governmental unit in the order specified when the Section 3 population requirements “cannot feasibly be attained” by combining the areas of governmental units in accordance with Section 7(B) [emphasis added]); Article XI, Section 7(D) (requiring the adoption of district boundaries established by the preceding apportionment “to the extent reasonably consistent” with the Section 3 population requirements [emphasis added]). {¶ 31} This court does not sit as a super apportionment board to determine whether a plan presented by the relators is better than the plan adopted by the board. Instead, we determine whether the board acted within the broad discretion conferred upon it by the provisions of Article XI when it adopted its plan. As respondents observe, whether relators have presented a “better” apportionment 14 January Term, 2012 plan is irrelevant in determining whether relators have met their burden to establish that the board’s September 30, 2011 apportionment plan is unconstitutional. The role of a supreme court in considering constitutional challenges to an apportionment plan is restricted to determining whether relators have met their burden to prove that the plan adopted by the board is unconstitutional beyond a reasonable doubt. See State ex rel. Cooper v. Tennant, 229 W.Va. 585, 730 S.E.2d 368, 2012 WL 517520 (2012), paragraph twelve of the syllabus (“The only role of the Supreme Court of Appeals of West Virginia in determining whether a state legislative redistricting plan is constitutional is to assess the validity of the particular plan adopted by the Legislature under both federal and state constitutional principles, rather than to ascertain whether a better plan could have been designed and adopted”); Wilson v. State ex rel. State Election Bd., 270 P.3d 155, ¶ 1 (Okla.2012) (litigant’s mere statement that his redistricting plan is better than the plan passed by the state legislature and signed by the governor was insufficient to support claim that the plan was invalid); Arizona Minority Coalition, 220 Ariz. 587, 208 P.3d 676, at ¶ 46 (“the fact that a ‘better’ [redistricting] plan exists does not establish that this plan lacks a reasonable basis”). {¶ 32} In fulfilling our limited role, we read together the constitutional provisions that are in pari materia, and we attempt to give full application to every part of each of them unless they are irreconcilable and in hopeless conflict. See Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 57. If there is an irreconcilable conflict, the special provision prevails over the general provision, unless the general provision was adopted later and the manifest intent is that the general provision prevail. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 26-27. {¶ 33} But if the sections are coequal—that is, if neither is more specific and both were adopted at the same time—then the apportionment board is 15 SUPREME COURT OF OHIO empowered to apply either one of them. Voinovich, 63 Ohio St.3d at 200, 586 N.E.2d 1020. Consequently, when coequal provisions of Article XI of the Ohio Constitution are irreconcilable, the apportionment board has the duty to choose the proper course, and this court will not order it to correct one constitutional violation by committing another. Id. {¶ 34} One of the main considerations of the joint secretaries in formulating their proposed plan was preserving the boundaries of existing legislative districts, which is consistent with the requirement of Section 7(D). Moreover, apportionment boards have historically treated the division of noncontiguous local governmental units as not constituting a violation of Sections 7(A), (B), or (C). In 1981, the apportionment board did not count 16 divisions of noncontiguous governmental units as divisions for purposes of Article XI; in 1991, the apportionment board did not count 25 such divisions; and in 2001, the apportionment board did not count 34 of these divisions. The board considered the division of noncontiguous governmental units as having been accomplished by local officials through annexation rather than by the board through apportionment. This practice of not counting divisions of noncontiguous governmental units has been followed by apportionment boards that have had both Democratic and Republican majorities. Additionally, comparison between the 2011 and 2001 apportionment plans indicates that the number of divisions of counties in both plans is comparable (74 for the 2011 apportionment plan and 73 for the 2001 apportionment plan). {¶ 35} In fact, by retaining district boundaries similar to those in the previous apportionment plan—and thereby enhancing representational continuity for district residents—the board’s plan is more compliant with Section 7(D) than the alternative plan that was timely submitted to the apportionment board by the Joint Democratic Caucuses or, for that matter, the alternative plans submitted by relators’ expert, Professor Michael McDonald. 16 January Term, 2012 {¶ 36} Relators argue that the board erred in relying on Section 7(D) to justify violations of Sections 7(A), (B), and (C) because Section 7(D) is subordinate to the other subsections. They claim that because Section 7(D) is the last subsection, it is also last in priority. {¶ 37} A review of the plain text of Section 7, however, dispels that contention. Sections 7(A), (B), and (C) are interconnected so that if the Section 3 population requirements cannot feasibly be attained by drawing the line according to Section 7(A), then Section 7(B) is followed, and if they cannot feasibly be attained by following Section 7(B), then Section 7(C) is followed. Section 7(D), however, is not phrased in a manner that subordinates it to Sections 7(A), (B), and (C). Instead, Section 7(D) is phrased to apply broadly to the board’s “new apportionment” and, like Sections 7(A), (B), and (C), is governed by the population requirements of Section 3. There is no language suggesting that Section 7(D) may be followed only if Sections (A), (B), and (C) are inapplicable. {¶ 38} Therefore, the Ohio Constitution, Article XI, Section 7(D) is coequal with Article XI, Sections 7(A), (B), and (C), and in accordance with Voinovich, 63 Ohio St.3d at 200, 586 N.E.2d 1020, the court will not order the apportionment board to correct a violation of Sections 7(A), (B), and (C) by violating Section 7(D). {¶ 39} Relators next assert that even if Section 7(D) is coequal with Sections 7(A), (B), and (C), that fact does not justify respondents’ alteration of previous district boundaries from the 2001 apportionment plan. That is, relators contend that pursuant to Section 7(D), “if a prior district’s population is ‘reasonably consistent with the requirements of Section 3,’ then the ‘district boundaries established by the preceding apportionment shall be adopted.’ ” {¶ 40} But once again, relators ignore the plain text of Section 7(D), which provides, “In making a new apportionment, district boundaries established by the preceding apportionment shall be adopted to the extent reasonably 17 SUPREME COURT OF OHIO consistent with the requirements of section 3 of this Article.” (Emphasis added.) In essence, relators’ interpretation replaces the phrase, “to the extent”—a phrase that vests the apportionment board with discretion—with the conditional term “if.” But this interpretation changes the meaning of Section 7(D), which we cannot do. See State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio3459, 852 N.E.2d 145, ¶ 50 (in construing statutes, court cannot add or delete language); State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009Ohio-4900, 916 N.E.2d 462, ¶ 49 (courts are not authorized to add exceptions that are not contained within the express language of constitutional provisions). {¶ 41} Therefore, the Ohio Constitution vests discretion in the apportionment board to adopt the prior district’s boundaries “to the extent reasonably consistent” with the Section 3 population requirements, and this discretionary language confers the authority on the apportionment board to adopt district boundaries that are not identical to those used in the prior apportionment. {¶ 42} Relators’ claims focus on the board’s divisions of governmental units. Because those divisions were warranted by both the bipartisan historical practice of prior apportionment boards and the Section 7(D) requirement of keeping boundaries similar to those used in the prior apportionment, we will not order respondents to correct the alleged violations of Sections 7(A), (B), and (C) by committing a violation of Section 7(D). Similarly, given the discretion accorded respondents under Section 7(D) and the related provisions, relators have not established by proof beyond a reasonable doubt that respondents’ purported failure to use the exact same boundary lines as the 2001 apportionment plan for a few districts constituted a violation of that section. Relators’ Evidence {¶ 43} Relators primarily rely on the two alternative apportionment plans of their expert, Professor McDonald, to meet their heavy burden of proof in this 18 January Term, 2012 special proceeding. For the following reasons, however, these alternative plans are insufficient to carry that burden. {¶ 44} First, they appear to be based on the same flawed interpretation of Section 7(D) advocated by relators. {¶ 45} Second, as previously discussed, whether a litigant has presented a “better” apportionment plan is irrelevant to the court’s determination of whether the plan adopted by the apportionment board is constitutional. See Cooper, 730 S.E.2d 368, 2012 WL 517520, at paragraph twelve of the syllabus; Arizona Minority Coalition, 220 Ariz. 587, 208 P.3d 676, at ¶ 46. {¶ 46} Third, Professor McDonald’s affidavits are replete with conclusory statements that lack specific factual support. For example, he states that the apportionment board’s plan “split over 250 political subdivisions,” while each of his alternative plans “divides less than 100 subdivisions,” but he offers no detailed explanation of what he counted as a split or division, and he does not enumerate each of the subdivisions split by the various plans. In the absence of more detailed factual support, we are left to wonder about the analytical choices made by relators’ expert and the concomitant viability of his conclusions. And insofar as relators argue that Professor McDonald’s plans contain many fewer divisions of governmental units than are contained in the board’s plan and do not violate any other constitutional provisions, his affidavits simply contain insufficient evidence to establish the truth of their assertion. Indeed, from his affidavits, it is unclear whether Professor McDonald even considered all the applicable criteria, unlike respondents, who established that they had considered all the applicable criteria in formulating and adopting their plan. Notably, in an unrelated case, a federal district court recently held that Professor McDonald’s expert opinion was unreliable because, among other reasons, he failed to consider all the applicable principles that guide redistricting. Backus v. South Carolina, 857 F.Supp.2d 553, 562 (D.S.C.2012). His conclusory opinion here appears to be similarly defective. 19 SUPREME COURT OF OHIO {¶ 47} Finally, relator claims that courts have regularly relied on a litigant’s alternative plans in assessing the validity of an apportionment plan, citing Holt, 38 A.3d 711, Twin Falls Cty. v. Idaho Comm. on Redistricting, 152 Idaho 346, 271 P.3d 1202 (2012), and In re Reapportionment of the Colorado Gen. Assembly, __ P.3d __, 2011 WL 5830123. But in each of these cases, the alternative plans reviewed by the courts were timely submitted to the state’s apportionment body for its review in the process of adopting a plan. Holt at 753754 and fn. 32; Twin Falls at 1206-1207; Reapportionment of the Colorado Gen. Assembly at -4. By contrast, both of Professor McDonald’s alternate apportionment plans were not timely submitted to the apportionment board, but were instead submitted as evidence in a case filed more than three months after the board approved its 2011 plan.
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In arguing it was error for the district court to grant the State’s motion to dismiss, Amaya presents three alternative theories. First, he argues the DNA test results completely exonerated and exculpated him so his convictions should have been vacated and he should have been released. Alternatively, Amaya argues he should have been allowed to withdraw his pleas, because if he had known the DNA test results, he would not have entered his pleas and would have insisted on going to trial. Finally, he argues that even if the DNA test results 5 See Poe, supra note 4. 6 State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019). 7 State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019). - 42 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 did not support vacating his convictions or allowing him to withdraw his pleas, the test results entitle him to the relief of resentencing. Before addressing Amaya’s arguments, we review the legal framework of the DNA Testing Act. 1. DNA Testing Act [4] Section 29-4120(1) of the act provides that a person “in custody pursuant to the judgment of a court may, at any time after conviction,” file a motion requesting DNA testing. This court has previously held the DNA Testing Act does not exclude defendants such as Amaya who were convicted based on a plea.8 Section 29-4120 sets out what a defendant must do to obtain DNA testing. We have explained: “The initial step toward obtaining relief under the DNA Testing Act is for a person in custody to file a motion requesting forensic DNA testing of biological material. . . . Forensic DNA testing is available for any biological material that is related to the investigation or prosecution that resulted in the judgment; is in the actual or constructive possession of the state, or others likely to safeguard the integrity of the biological material; and either was not previously subjected to DNA testing or can be retested with more accurate current techniques.”9 If these threshold criteria are met, and if the court finds that “testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced,”10 then under § 29-4120(5) the court “shall order DNA testing.” But a court is not required to order postconviction DNA testing if such testing would not produce exculpatory 8 See State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007). 9 State v. Myers, 301 Neb. 756, 762, 919 N.W.2d 893, 897 (2018), quoting State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004). See § 29-4120(1). 10 § 29-4120(5). - 43 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 evidence.11 The act defines “exculpatory evidence” as “evidence which is favorable to the person in custody and material to the issue of the guilt of the person.”12 In this case, the court ordered DNA testing on four items of evidence and no party contends it was error to order the testing. We therefore move on to the procedure to be followed once the DNA test results are complete. Under § 29-4123(2), the test results must be disclosed to the county attorney and to the person who requested the testing and his or her attorney. After receiving the test results, either party may request a hearing on whether the results “exonerate or exculpate the person.”13 Following such a hearing, the court may, on its own or on the motion of either party, “vacate and set aside the judgment and release the person from custody based upon final testing results exonerating or exculpating the person.”14 If the court does not vacate and set aside the conviction, then § 29-4123(3) provides that “any party may file a motion for a new trial under sections 29-2101 to 29-2103.” As for when a court may vacate a conviction and release the person under § 29-4123(2), and when it may order a new trial under § 29-4123(3), we have explained: “[T]he court may vacate and set aside the judgment in circumstances where the DNA testing results are either completely exonerative or highly exculpatory—when the results, when considered with the evidence of the case which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element of the crime charged. . . . This requires a finding that guilt cannot be sustained because the evidence is doubtful in 11 Ildefonso, supra note 6. 12 § 29-4119. 13 § 29-4123(2). 14 Id. - 44 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 character and completely lacking in probative value. . . . [I]n other circumstances where the evidence is merely exculpatory, the court may order a new trial if the newly discovered exculpatory DNA evidence is of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result.”15 Here, after the DNA test results were obtained, Amaya did not move for a hearing.16 Instead, the State sought to dismiss the DNA testing proceeding, arguing the results of the DNA testing did not exonerate or exculpate Amaya and he was not entitled to relief. At the hearing on that motion, Amaya orally argued that the DNA test results were exculpatory and his convictions should be vacated or, alternatively, that the results entitled him to either withdraw his pleas or be resentenced. The court granted the State’s motion to dismiss. We review its factual findings for clear error 17 and its decision for an abuse of discretion.18 2. Amaya’s Arguments Amaya argues, summarized, that his plea-based convictions were largely based on Long’s anticipated testimony against him. He contends the DNA test results “provide powerful scientific evidence demonstrating that Long was lying.”19 He focuses primarily on the test results from the mouth of the beer bottle found on the porch, as well as on the test results from the knife and the beer bottle in which the knife was disposed. 15 Myers, supra note 9 at 764-65, 919 N.W.2d at 898, quoting Buckman, supra note 9. 16 See § 29-4123(2). 17 See Ildefonso, supra note 6. 18 See Poe, supra note 4. 19 Brief for appellant at 18. - 45 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 (a) Beer Bottle From Porch Amaya argues the test results from the beer bottle on the porch “conclusively show that Long lied about the consumption of alcohol at the Fhuere residence.”20 His logic in this regard is not obvious, so we provide additional facts. Amaya explains that in a 1999 deposition, Long testified that he was drinking beer on the night of the crime and that he brought the beer with him from his own house. According to Amaya, the evidence inventory completed by police shows that the beer bottle that was found to have Long’s DNA on the mouth area was the same brand, and from the same batch, as 54 other bottles of beer found at Fhuere’s residence. Amaya thus suggests the DNA test results show that Long did not bring that beer bottle from his own home and “firmly establish that Long was lying.”21 Amaya posits that if Long lied about bringing the beer, it “casts a cloud of suspicion”22 on the credibility of his other statements concerning the crimes. With respect to this test result, the district court found: The major DNA profile from this sample matches the co-Defendant, . . . Long. The results concerning the minor contributor [were] inconclusive, due to limited information. However, this information, when considered with the other evidence of the case, is doubtful in character and lacks, in this Court’s opinion, tangible probative value. The court’s findings are fully supported by the record and are not clearly erroneous. (b) Knife and Beer Bottle Amaya argues the test results on the handle of the knife and the mouth of the beer bottle in which it was found “fail 20 Id. at 25. 21 Id. at 18. 22 Id. at 31. - 46 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 to support any claims Long made about Amaya handling the knife during and after the murder.”23 He points out the test results showed Fhuere was the major contributor of the DNA found on the knife handle and on the mouth of the beer bottle, and he suggests this “directly contradicts the narrative of Long which has Amaya grasping that knife to cut Fhuere’s throat, handling that knife by placing it in a beer bottle, and throwing that beer bottle out of a car near 7th and Adams Streets in North Platte.”24 With respect to these test results, the district court found: The material tested from the black-handled knife [and] the mouth area of the beer bottle found . . . in the area of 7th and Adams streets in North Platte conclude[s] that the major DNA profile from each of these specimens matches [Fhuere]. No other minor DNA contributors were identified, “due to limited information.” The court’s factual findings are fully supported by the record and are not clearly erroneous. 3. Results Did Not Exonerate Amaya Amaya contends that the DNA testing on the beer bottles and the knife handle discredited Long’s veracity and that the court should have vacated his convictions and released him from custody. We disagree. [5] Section 29-4123(2) allows a court to vacate the judgment and release the person from custody only when the DNA test results “exonerate or exculpate the person.” The district court did not abuse its discretion in finding that threshold was not met here. First, it is questionable whether the DNA test results implicate Long’s veracity at all. It stretches logic to suggest the test results from the beer bottle found on the porch prove that Long lied about bringing his own beer that evening. And 23 Id. at 25. 24 Id. at 19. - 47 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 contrary to Amaya’s contention, the absence of his DNA on the knife or the beer bottle in which it was disposed does not “directly contradict[]” Long’s assertions that Amaya slashed Fhuere’s throat and disposed of the knife in the beer bottle, particularly where the results were inconclusive as to the minor contributor. We have recognized that if DNA testing does not detect the presence of a prisoner’s DNA on an item of evidence, such a result is at best inconclusive, especially when there is other credible evidence tying the defendant to the crime.25 Here, there was plenty of other credible evidence pointing to Amaya’s involvement in the crimes. The DNA test results of the bite mark on the victim’s thigh corroborated the forensic dentist’s opinion matching the bite mark to Amaya, and also corroborated Long’s testimony that Amaya had bitten Fhuere during the assault. Earlier DNA testing showed Fhuere’s blood was on Amaya’s shoe. And perhaps the most credible evidence tying Amaya to the crimes were letters he wrote from jail confessing to involvement in Fhuere’s murder. Moreover, even if the test results could be understood to call Long’s credibility into question, the record shows that, at the time he entered his pleas, Amaya already had reason to question Long’s credibility. He knew Long had given police inconsistent accounts of what happened the evening of the crimes, and his attorney had deposed Long and acquired additional information relevant to Long’s credibility. Because significant questions as to Long’s veracity and credibility already existed at the time Amaya chose to enter his pleas, we do not see how the DNA test results revealed anything new. [6] When DNA test results are either inculpatory, inconclusive, or immaterial to the issue of a person’s guilt, the results will not entitle the person to relief under the DNA Testing 25 See Ildefonso, supra note 6. - 48 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 Act. On this record, the DNA test result on the bite mark was inculpatory and unfavorable to Amaya and the remaining testing was either inconclusive or immaterial to the issue of his guilt. The district court did not abuse its discretion in concluding Amaya was not entitled to have his convictions vacated, because the DNA test results were neither exonerative nor exculpatory.26 4. Resentencing Is Not Remedy Under DNA Testing Act Alternatively, Amaya asks us to remand this matter to the district court with instructions to “consider whether Amaya was wrongfully sentenced.”27 He argues the DNA test results “establish that Long had substantially less credibility than was apparent at the time of sentencing,”28 and he suggests that if the sentencing court had been aware of the test results, “different and more favorable sentences would have been given.”29 Because we conclude the DNA Testing Act does not authorize the relief of resentencing, we reject Amaya’s argument without addressing his reasoning. [7] As noted, there are two remedies available under the DNA Testing Act. Those remedies are set out in § 29-4123(2) and (3), and they include, respectively, either vacating and setting aside the judgment and releasing the defendant from custody or requesting a new trial. As we explain more fully below, resentencing is not among the statutory remedies enacted by the Legislature, and we decline Amaya’s invitation to judicially expand the act to include such relief. Amaya asks us to find that resentencing must be a remedy under the act, because § 29-4120(5)(c) allows a court to order DNA testing if it “may produce noncumulative, exculpatory 26 See § 29-4123(2). 27 Brief for appellant at 17. 28 Id. at 20. 29 Id. at 21. - 49 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 evidence relevant to the claim that the person was wrongfully convicted or sentenced.” This is the only time the DNA Testing Act mentions “sentencing,” and it is significant that the reference is contained only in the section of the act governing when testing can be ordered, and not in the later section governing available relief. [8-10] Basic principles of statutory interpretation require a court to give statutory language its plain and ordinary meaning.30 In discerning the meaning of a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.31 Additionally, when interpreting a statute, a court must give effect, if possible, to all the several parts of a statute and no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.32 We have recognized that the DNA Testing Act imposes a relatively low threshold for those seeking to obtain testing of biological material, but once the testing is complete, the act imposes a much more rigorous standard for obtaining relief.33 It is a given that, under such a scheme, far more people will be entitled to ask for DNA testing under the act than will ultimately be entitled to relief under the act. Giving the statutory language its plain and ordinary meaning, we find that the phrase in § 29-4120(5)(c) referring to a “claim that the person was wrongfully convicted or sentenced” describes the type of claim that may entitle a movant to request DNA testing when the other statutory criteria are met, but the phrase has no impact on the type of relief the movant is ultimately entitled to under § 29-4123 of the act. 30 Lovvorn, supra note 7. 31 See Bridgeport Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818 N.W.2d 600 (2012). 32 See State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019). 33 See, § 29-4120; Myers, supra note 9. - 50 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 [11] As stated, the DNA Testing Act authorizes just two forms of relief: (1) complete exoneration and vacation of judgment and release from custody or (2) the opportunity to file a motion for new trial.34 Resentencing, absent a successful motion for new trial under § 29-4123(3), is not a form of relief available under the act. The district court did not err in not considering resentencing in this proceeding. 5. Withdrawal of Plea Not Remedy Under DNA Testing Act Finally, Amaya argues that if he had known about the DNA test results before he entered his pleas, he would have insisted on going to trial. His argument is, again, generally premised on an assertion that the DNA test results negated Long’s credibility—an assertion we already have rejected. [12] But more importantly, the relief of withdrawing a guilty or no contest plea is not an available remedy under the DNA Testing Act. As already explained, the act authorizes a district court to “vacate and set aside the judgment and release the person from custody based upon final testing results exonerating or exculpating the person.”35 And if that relief is not granted, the act provides that “any party may file a motion for a new trial under sections 29-2101 to 29-2103.”36 The plain language of the act does not authorize a court to find that, based on DNA test results, a defendant’s plea-based conviction can be set aside, the plea withdrawn, and a new trial held. For the sake of completeness, we note that Amaya’s counsel insisted during oral argument that his client’s request to withdraw his pleas should not be construed as a motion for new trial under § 29-4123(3). This is consistent with the position he took before the district court on the motion to dismiss. We thus express no opinion on whether a person whose conviction 34 § 29-4123. 35 § 29-4123(2). 36 § 29-4123(3). - 51 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. AMAYA Cite as 305 Neb. 36 is plea based can, after DNA testing results are obtained, move for a new trial under § 29-4123(3) and Neb. Rev. Stat. §§ 29-2101 to 29-2103 (Reissue 2016).37
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Will Blain’s will nominated Cindy Svoboda (Cindy) as personal representative. Cindy and Blain cohabitated from 2008 until Blain died on February 19, 2017, at age 63. The will devised to Cindy one-half of Blain’s livestock and one-half of the ownership of his pharmacy business. To Matthew Larson, Blain’s son from a former marriage, the will devised one-half of the livestock, one-half of the pharmacy business, a pontoon, a fishing boat, sport utility vehicles, and certain personal property. The will devised the residue of his estate to Cindy. There was no devise for Blain’s daughter, Amber Fixemer (Amber). Of central relevance, Blain’s will contained the following provision concerning the payment of debts and estate expenses: My Personal Representative shall pay from the residue of my estate all my debts, funeral expenses, administration expenses and all estate, inheritance, succession and - 355 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports IN RE ESTATE OF LARSON Cite as 311 Neb. 352 transfer taxes imposed by the United States or any state, territory or possession which shall become payable by reason of my death. It shall not be necessary to file any claims therefor, nor to have them allowed by any court. Will Contest In March 2017, Cindy initiated informal probate proceedings in the county court and was appointed Blain’s personal representative. Matthew and Amber subsequently filed a petition to prevent informal probate, seeking an order that Blain died intestate based on the allegations that he lacked sufficient capacity to execute his will and that the will was invalid due to undue influence, fraud, and duress. Cindy denied the allegations. The matter moved to district court, where the court entered judgment on a jury verdict in favor of Cindy. In addition, the court found Matthew and Amber had filed their appeal “‘vexatiously or for delay’” and consequently awarded Cindy $2,871.70 in costs. Matthew’s Objection The matter returned to county court, where Cindy filed a formal petition for complete settlement after the informal testate proceeding, along with a schedule of distribution. Pursuant to Neb. Rev. Stat. §§ 30-2480 and 30-2481 (Reissue 2016), the petition sought approval of Cindy’s final accounting and the fees and expenses she had incurred as personal representative. Cindy’s petition specifically requested “[a]pproving distributions previously made and authorizing and directing [Cindy] to distribute the assets and the Final Accounting of the Estate to the Distributees in accordance with the annexed Schedule of Distribution.” Cindy’s schedule of distribution allotted to Matthew a half interest in the proceeds from the sale of pharmacy stock, 26 cows, recreational vehicles, personal property, and taxes. To Cindy, the schedule allotted a half interest in the proceeds from the sale of pharmacy stock, 26 cows, taxes, and the balance of the residuary estate after payment of taxes, debts, and - 356 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports IN RE ESTATE OF LARSON Cite as 311 Neb. 352 administration expenses. Some estate items had already been distributed in kind. Cindy’s tentative inheritance tax totaled $224,249, whereas Matthew’s totaled $7,190. Cindy’s final accounting showed that $545,029.98 remained in the estate account after payment of tentative inheritance taxes and administration expenses, including attorney fees incurred in defending the will contest, property taxes, and half the cost of a headstone. The court refunded $16,387 for overpayment of inheritance taxes and assessed inheritance taxes due in the amount of $208,758 against Cindy and $6,294 against Matthew. On March 6, 2020, pursuant to Neb. Rev. Stat. § 30-24,104(b) (Reissue 2016), Matthew filed an objection to Cindy’s proposal for distribution, alleging that she failed to properly apportion inheritance taxes once the residue had been exhausted and that each beneficiary should be responsible for his or her own inheritance tax. Matthew further alleged that Cindy, as personal representative, incurred unnecessary and unreasonable expenses and that estate funds should not be used to pay Cindy’s attorney fees. Hearing At a hearing on Matthew’s objection, the court heard evidence regarding attorney fees Cindy incurred as personal representative while defending the will contest. Cindy testified that she defended the will to carry out Blain’s wishes and denied that her primary purpose was to enhance her prospects of compensation under the will or that her efforts had that effect. She denied defending the will to amass personal representative fees, stating that she attempted resolutions through mediation and summary judgment. Cindy did admit that in the event she lost the will contest, she would not inherit any probate assets. The county court received affidavits from Cindy’s counsel and independent local counsel regarding the attorney fees paid by the estate. An affidavit from one of Cindy’s attorneys provided a detailed list of charges, while the other two - 357 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports IN RE ESTATE OF LARSON Cite as 311 Neb. 352 attorneys stated that the attorney fees incurred in defending the will contest were reasonable and necessary considering the various legal issues raised. Matthew disputed Cindy’s use of estate funds to pay real estate taxes. Cindy testified she used funds from the estate account to pay half of the real estate taxes on the house she owned jointly with Blain until his death. Cindy explained that the real estate taxes she paid were for 2016, when Blain was alive, and that paying the real estate taxes kept the property clear of any liens. Cindy considered this part of her duty as personal representative to preserve the property and avoid incurring additional expenses. Matthew contested Cindy’s use of estate funds to purchase a headstone for Blain. Cindy testified that in July 2017, Blain’s mother was concerned that there was no headstone marking Blain’s grave. As a result, Cindy ordered a headstone in August 2017, using estate funds to pay half the cost. In January 2018, Cindy learned that Matthew and Amber had also purchased a headstone, but did not present the estate with a bill. The headstone purchased by Matthew and Amber was ultimately placed on Blain’s grave, and the headstone purchased by Cindy was placed on her adjacent plot. Cindy testified that based upon Neb. Rev. Stat. § 30-2223 (Reissue 2016), she understood that a personal representative may use estate funds to pay for a headstone, such as the one she purchased. Cindy testified that Matthew and Amber did not timely exercise their rights as to payment of the headstone. Court Order In April 2020, the court entered an order dismissing Matthew’s objection to Cindy’s proposal for distribution. The court determined that the attorney fees Cindy incurred as personal representative were for the primary purpose of defending Blain’s will. The court found no evidence that Cindy did not defend the will in good faith. The court reasoned that the fact that Cindy would receive a greater share of the probate - 358 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports IN RE ESTATE OF LARSON Cite as 311 Neb. 352 assets did not indicate a lack of good faith. Based on the affidavits from counsel, the court found the attorney fees and estate expenses incurred by Cindy as personal representative were reasonable and necessary. As to the disputed administration expenses and inheritance taxes, the court found that the will directed such to be paid from the residue. However, because Blain’s estate had minimal residuary value, the court found the apportionment provisions under Neb. Rev. Stat. § 30-24,100 (Reissue 2016) controlled. The court determined nonprobate assets were unavailable to pay inheritance taxes, because Matthew had not made a timely demand upon the personal representative under Neb. Rev. Stat. § 30-24,120 (Reissue 2016). The court determined that under § 30-24,100, “the inheritance taxes should be paid from the estate and to the extent the residuary estate is unavailable for payment of these expenses, the specific devisees [sic] in proportion to the share owned by Cindy . . . and Matthew . . . should be reduced for such estate expenses and inherit ance tax.” Cindy filed a supplemental final accounting applying the court’s order, which accounting stated that the parties had agreed to apportion administration expenses, funeral expenses, debts, taxes, and claims of 49.4 percent to Cindy and 50.6 percent to Matthew. Deducting for proportionate shares, the accounting set forth the final distribution to Matthew and Cindy. Matthew appeals. We granted Matthew’s request for bypass. ASSIGNMENTS OF ERROR Matthew assigns, summarized and restated, that the county court erred in (1) charging inheritance taxes to the estate, (2) charging real estate taxes to the estate, (3) charging attorney fees incurred by the personal representative to the estate, (4) charging a headstone to the estate, (5) misapplying the rules of abatement and apportionment, and (6) determining that § 30-24,120 applied to the case. - 359 - Nebraska Supreme Court Advance Sheets 311 Nebraska Reports IN RE ESTATE OF LARSON Cite as 311 Neb. 352
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¶1 Meagan Grunwald was convicted as an accomplice to the crime of aggravated murder. But the jury instruction that provided the basis for her conviction contained three errors: (1) it impermissibly permitted conviction based on a finding of recklessness, a less culpable mental state than is required by statute, (2) it impermissibly permitted conviction based on intentional aid that was not directly connected to the murder, and (3) it impermissibly permitted conviction based on a finding that Ms. Grunwald knew that the principal actor’s conduct was reasonably certain to result in aggravated murder, rather than on the finding that she knowingly committed the actus reus to help the principal actor in committing the murder. We must determine whether any of these errors, or a combination of them, caused a reasonable probability of an unfair conviction. In other words, we must determine whether, in the absence of these errors, there is a reasonable probability the jury would have arrived at a different result. ¶2 The court of appeals considered this question and determined there was no such probability. Accordingly, that court affirmed Ms. Grunwald’s conviction. Now Ms. Grunwald asks us to reverse the decision of the court of appeals because, in her view, the court failed to properly consider all of the evidence presented to the jury and misconstrued some of the legal requirements of accomplice liability. Because it is reasonably probable that the jury would not have convicted Ms. Grunwald of aggravated murder absent the jury instruction errors, we reverse her conviction and remand for a new trial with correct jury instructions.
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