State v. Labrum

                This opinion is subject to revision before final
                     publication in the Pacific Reporter
                                

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Appellant,
                                      v.
                          KYLI JENAE LABRUM,
                                Appellee.

                           No. 20220889
                       Heard October 30, 2024
                         Filed May 1, 2025

                           On Direct Appeal

               First District Court, Cache County
              The Honorable Angela F. Fonnesbeck
                          No. 221100561

                                Attorneys:
Derek E. Brown, Att’y Gen., Karen A. Klucznik, Asst. Solic. Gen.,
                 Salt Lake City, for appellant
 Gregory G. Skordas, Gabriela Mena, Salt Lake City, for appellee

   ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the
    Court, in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,
          JUSTICE HAGEN, and JUSTICE POHLMAN joined.


   ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:
                          INTRODUCTION
   ¶1 This case concerns the attempted prosecution of Kyli Jenae
Labrum for rape based on allegations that she engaged in an affair
with T.S., a teenaged boy. At the preliminary hearing, a magistrate
judge ruled that the State had failed to present evidence showing
that the relationship was nonconsensual, rejecting the
prosecution’s argument that Labrum occupied a position of special
trust in relation to T.S. In response, the State initially moved to
                          STATE v. LABRUM
                       Opinion of the Court

reduce the rape counts to a lesser offense that did not require proof
of nonconsent but later decided to pursue the rape charges. First in
a motion for reconsideration and then in a refiled proceeding, the
State reasserted its original theory of nonconsent and added an
alternative theory—enticement. The magistrate rejected both
attempts, ruling the reconsideration motion procedurally
inappropriate and the refiled charges constitutionally barred. The
State appeals the second ruling, arguing that the magistrate erred
in its determination that the Utah Constitution’s Due Process
Clause prohibits the State from refiling rape charges against
Labrum. We clarify the governing standard, vacate the ruling, and
remand.
                         BACKGROUND 1
    ¶2 Labrum was twenty-six when she initiated a sexual
relationship with T.S., the sixteen-year-old son of Labrum’s close
friend. The relationship lasted for over a year. The two would
rendezvous in Labrum’s car, house, and workplace.
   ¶3 After several community members reported the affair to
police, the State charged Labrum with ten counts of rape and one
count of forcible sexual abuse. The assigned prosecutor (Assigned
Prosecutor) planned to present two theories of nonconsent in
support of the charges at the preliminary hearing: a special trust
theory (Special Trust Theory) and an enticement theory
(Enticement Theory). 2
   ¶4 Because of a scheduling conflict, Assigned Prosecutor
asked a stand-in prosecutor (Stand-In Prosecutor) to present the
State’s case at the preliminary hearing. Assigned Prosecutor later
recalled discussing both theories of nonconsent with Stand-In

__________________________________________________________
   1 We recite the State’s version of events for background
information but emphasize that all descriptions of Labrum’s
behavior are unproven allegations.
   2 Under Utah law, rape requires a showing of nonconsent. See

UTAH CODE § 76-5-402(2)(a) (“An actor commits rape if the actor
has sexual intercourse with another individual without the
individual’s consent.”). For a victim of T.S.’s age at the time of the
alleged offense, the nonconsent element can be satisfied by
showing that the actor either “occupied a position of special trust
in relation to the victim” or “entice[d] or coerce[d] the victim to
submit or participate.” Id. § 76-5-406(2)(j), (k).

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Prosecutor. At the hearing, Stand-In Prosecutor argued only the
Special Trust Theory, and that only briefly.
    ¶5 Stand-In Prosecutor’s approach relied largely on evidence
rather than argument. He introduced statements from T.S. and
T.S.’s mother (Mom).3 These statements described the history of the
sexual relationship between T.S. and Labrum. They also gave
context for the family’s longstanding relationships with Labrum,
including that:
   •   T.S. met Labrum when he was between six and eight years
       old. She was in his life as a close family friend for nearly a
       decade before they began having sex.
   •   T.S.’s sister and Mom were especially close with Labrum.
       Labrum would spend time with all the kids as they grew up.
   •   Labrum attended many of T.S.’s high school football games
       and T.S.’s sister’s soccer games.
   •   Mom said that Labrum was “like [her] little sister,” that she
       “looked at [Labrum] as blood,” and that she called and saw
       Labrum more often than her “own blood relatives.”
   •   Mom said she “trusted [Labrum] with [her] children, [her]
       house and [her] dog.”
    ¶6 After allowing the magistrate judge (Magistrate) time to
review this evidence, Stand-In Prosecutor gave a brief closing
statement. He opined that the Special Trust Theory was a “unique”
feature of the case but maintained that the State had presented
enough evidence to satisfy “the low standard of proof” in a
preliminary hearing. He argued that the statements contained at
least “some evidence” that Labrum’s “relationship with this family
was beyond acquaintance, beyond incidental, and in fact, there
were sometimes [sic] when she was actually giv[en] the care of the
children, including” T.S.
    ¶7 Defense counsel observed that the State’s theory
“seem[ed] to be a bit of a moving target.” He expressed confusion
as to whether the State meant to maintain that Labrum “had some
sort of a babysitter relationship” or had shifted to arguing that
Labrum “sort of worked her way into the family or something like
that.” While acknowledging that Labrum’s conduct was not “smart
__________________________________________________________
   3 Rule 1102(a) of the Utah Rules of Evidence permits the use of

reliable hearsay at preliminary hearings.

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or right or even noncriminal,” he implored the judge not to take
“what’s fairly obvious third-degree felonies and make them into
first-degree felonies just because.”
   ¶8 Magistrate rejected the Special Trust Theory, ruling that
the “close friendship” between Labrum and T.S.’s family did not
“in and of itself create a position of special trust” between Labrum
and T.S. In response, Stand-In Prosecutor did not press the
Enticement Theory. Instead, the locum tenens moved to reduce the
rape charges to unlawful sexual conduct with a sixteen- or
seventeen-year-old, a third-degree felony offense that does not
require the State to prove nonconsent. See UTAH CODE § 76-5-401.2.
Defense counsel later alleged that, after Magistrate denied
bindover on the rape charges, Stand-In Prosecutor said he “would
have not filed this case.”
     ¶9 When Assigned Prosecutor returned to the case, he moved
for reconsideration of Magistrate’s decision rather than proceed on
the lesser charges. In that motion, he argued that evidence in
Mom’s and T.S.’s statements supported both the Special Trust
Theory and the previously unargued Enticement Theory.
Magistrate denied the motion without weighing in on its merits,
ruling reconsideration an improper path to relief. She reasoned that
motions to reconsider are generally disfavored in Utah and that the
State had more appropriate “means and mechanisms” available to
it. The deadline to appeal the bindover decision passed while the
motion for reconsideration was pending, but Magistrate opined
that the State could still “refile [the] charges.”
    ¶10 Assigned Prosecutor moved to dismiss the case without
prejudice in anticipation of refiling. Labrum did not object, and
Magistrate granted the motion. Three months later, Assigned
Prosecutor refiled the original charges. The new case was initially
assigned to a different judge.
    ¶11 Labrum moved to dismiss the rape charges on the grounds
that the Utah Constitution’s Due Process Clause, as interpreted by
State v. Brickey, 

 (Utah 1986), forbade the State from
refiling those charges. Brickey held that the Utah Constitution’s Due
Process Clause limits the State’s discretion to refile charges after
they have been “dismissed for insufficient evidence.” 

 at 646–47.
Specifically, Brickey required the State to show good cause for
refiling and to refile in front of the same magistrate “whenever
possible.” 

. A subsequent case, State v. Morgan, 

,



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, altered Brickey’s holding, as discussed below. See infra
section I.
    ¶12 Labrum argued that the State was “harassing her and
engaging in hiding the ball” by presenting its Enticement Theory
after failing to argue it at the first preliminary hearing. Labrum
contended that the State should have immediately tried to
introduce the Enticement Theory at the first preliminary hearing—
instead of waiting twenty days to raise it in the motion for
reconsideration. As such, Labrum contended that the State had
engaged in an abusive practice and lacked “good cause” to refile
under Brickey. See 

. Labrum conceded, however, that
the State was not engaged in “forum shopping”—another abusive
practice in the Brickey line of cases.
    ¶13 In response, the State argued that its failure to adequately
support the Special Trust Theory constituted an “innocent mistake
of law.” It further argued that it had innocently miscalculated the
“best” procedural route forward when it moved for
reconsideration, thereby missing the deadline to appeal. That
miscalculation left refiling as the only option for pursuing the rape
charges.
    ¶14 In her reply in support of her motion to dismiss, Labrum
reversed course and accused the State of forum shopping.
Although Labrum did not fault the State for the original
assignment to a different judge (which she blamed on judicial
district procedure), she noted that the State had subsequently
“made no efforts” to “ensure” that the case was reassigned to
Magistrate. A week after Labrum filed her reply, the new judge
transferred the case to Magistrate sua sponte.
    ¶15 Magistrate granted Labrum’s motion to dismiss, agreeing
that Brickey prevented the State from refiling. She offered three
rationales for her ruling. 4 First, the State “presented no evidence as
it related to the ‘without consent’ element” of rape at the first
preliminary hearing. Second, the State impermissibly “withheld”
the Enticement Theory by failing to present it at the first
preliminary hearing. In Magistrate’s view, withholding a legal
 __________________________________________________________
   4 In addition to the three reasons discussed here, Magistrate

mentioned—seemingly in passing—that the State did not
proactively ensure that the second case was transferred to her. We
are not convinced this formed a basis for her ruling but address the
issue below, nonetheless. See infra, section II(C).

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                        Opinion of the Court

theory “is akin to withholding evidence[,] which is clearly
prohibited under Brickey.” Finally, the State failed to appeal the first
denial of bindover on the Special Trust Theory. Despite having
previously told the State that refiling was one “mechanism”
available to it, Magistrate had come to believe that the State must
seek appellate review whenever it disagrees with a magistrate
judge’s decision at a preliminary hearing, at least when the State
has no new evidence to present. Any other rule would give the
State “a second bite at the apple” in “every case”—a result
Magistrate believed Brickey foreclosed.
   ¶16 This appeal followed.
             ISSUE AND STANDARD OF REVIEW
    ¶17 The State asserts that Magistrate erred when she held that
State v. Brickey, 

 (Utah 1986), and its progeny prohibited
the refiling of rape charges against Labrum. A “lower court’s
interpretation of binding case law presents a question of law which
we review for correctness.” Utah Dep’t of Transp. v. FPA W. Point,
LLC, 

, 

 (cleaned up).
                             ANALYSIS
    ¶18 This case turns on whether and when article I, section 7 of
the Utah Constitution, our Due Process Clause, permits the State to
refile criminal charges after it has failed to establish probable cause
for those charges at a preliminary hearing. In State v. Brickey, 

 (Utah 1986), we held that our Due Process Clause requires
the State to show good cause to refile and to refile in front of the
same magistrate judge who heard the original case whenever
possible. 

. The State proposes that we resolve this case
either by overruling Brickey or by overhauling its central holding.
We decline both invitations. Instead, we harmonize Brickey’s rule
with subsequent caselaw and the general principles that guide our
constitutional jurisprudence. We then vacate and remand with
instructions to Magistrate to reevaluate this case under the
reformulated rule.
I. CLARIFYING BRICKEY AND ITS PROGENY
     ¶19 We first consider the State’s request that we overturn State
v. Brickey, 

 (Utah 1986). Parties have some “heavy
lifting” to do to persuade us to overrule our precedent. State v.
Sisneros, 

, ¶ 16 n.3, 

; see also Eldridge v.
Johndrow, 

, 

 (“Because stare decisis is
so important to the predictability and fairness of a common law

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system, we do not overrule our precedents ‘lightly.’” (cleaned up)).
They carry this burden by briefing the two so-called Eldridge
factors: (1) the strength of the reasoning on which the original
precedent rests and (2) the relative entrenchment of the precedent
in our law. See Eldridge, 

. The second factor is a
composite that includes considerations such as the precedent’s age,
workability, and consistency with other legal principles, as well as
the extent to which overturning the precedent would create
hardship or injustice. See 

 The State did not adequately brief this
second factor and therefore failed to carry its Eldridge burden.
    ¶20 In its briefing, the State levels three primary criticisms at
Brickey and its progeny. First, Brickey failed to recognize that, at
Utah’s founding, our Due Process Clause placed no limits on a
prosecutor’s ability to refile charges. Second, Brickey imposed such
limits in a cursory opinion that failed to consult any of our usual
sources of constitutional interpretation. And third, a subsequent
case, State v. Morgan, 

, 

, recognized the
“severity” of Brickey but failed to modify its rule adequately. All
three points primarily address the strength of Brickey’s (and
Morgan’s) reasoning.
    ¶21 The State did make one argument in passing that
potentially goes toward the entrenchment factor. The district
court’s ruling seemed to interpret Brickey to require the State to
present all possible theories in support of a charge at the
preliminary hearing. The State contends that this interpretation is
inconsistent with our rule that the State may alter its theory of a
charge even after trial has begun so long as “the substantial rights
of the defendant are not prejudiced.” See UTAH R. CRIM. P. 4(d); see
also State v. Peterson, 

, 1220–21 (Utah 1984) (holding
that an amendment to an information on the last day of trial, which
switched the theory of an aggravated assault charge from force
resulting in “serious bodily injury” to “force likely to produce
death,” did not prejudice a defendant’s substantial rights because
it “did not change the basic charge”).
    ¶22 Assuming the district court’s interpretation of Brickey was
correct in this respect, the State’s argument against it certainly
touches on Brickey’s consistency with our body of law and is
therefore relevant to the second Eldridge factor. See Eldridge, 

. But ultimately the State’s briefing on this point is too
cursory to satisfy its heavy burden. Lacking a full picture of all the
interests at stake and a more thorough review of analogous


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                        Opinion of the Court

criminal procedure stages, we are not persuaded that we should
abandon a nearly forty-year-old precedent—one which we have
repeatedly applied. See, e.g., Morgan, 

; State v. Redd, 

, 

. We leave open, however, the possibility of
reconsidering Brickey on different briefing. 5
   ¶23 Although we decline to overrule Brickey, we agree with the
State that the rule has become muddled in its application. Where a
body of caselaw has become overgrown with contradictory or
competing branches, the principle of stare decisis can be honored
by pruning the rule back to its trunk, grafting in any gaps with
default assumptions from our jurisprudence.
    ¶24 In discussing the evolution of our Brickey line of cases, it
may be helpful to distinguish between “operative propositions”—
that is, judicial interpretation of constitutional meaning—and
“decision rules”—that is, the legal principles or adjudicatory
mechanisms by which courts gauge compliance with that meaning.
See Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV.
1, 9 (2004). 6 For example, in the context of a due process challenge

__________________________________________________________
   5 Alternatively, the State argues that it was not required to brief

Eldridge because it is “not asking to overturn [Brickey’s]
fundamental holding that due process limits a prosecutor’s ability
to refile.” This stretches the meaning of “fundamental holding”
beyond what the term can bear. It is true that we can retool our
precedent, even substantially, without overruling it. See Rutherford
v. Talisker Canyons Fin., Co., 

, ¶ 79 n.27, 

 (“We
are always free to clarify ambiguities in past opinions without
overruling their holdings. Such a decision is entirely consistent
with the principle of stare decisis.” (cleaned up)). But the State’s
advocacy for a rule wholly different from Brickey’s—one chance to
refile as a matter of right “absent evidence of prejudicial abusive
prosecutorial misconduct”—goes far beyond a request that we
merely “clarify, refine, or reconcile” our precedent, see Blanke v.
Utah Bd. of Pardons & Parole, 

, ¶ 11 n.6, 

(cleaned up). We discuss these issues in greater detail throughout
the remainder of this section.
   6 While we find Professor Berman’s terminology particularly

useful to our analysis in this context, we note that “myriad [other]
doctrines and practices . . . accept a gap between constitutional
‘meaning’ and judicial ‘implementation.’” Thomas G. Saylor,
                                                      (continued . . .)

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to prison discipline, the U.S. Supreme Court held that “[t]he
requirements of due process are satisfied if some evidence supports
the decision by the prison disciplinary board.” See 

 at 60 (quoting
Superintendent v. Hill, 

, 455–56 (1985)). This particular
holding is a decision rule—a manageable way for a reviewing court
to gauge compliance with due process—rather than a
constitutional operative proposition—a statement about what sorts
of prison discipline the Due Process Clause protects against. See 

In Miranda v. Arizona, 

 (1966), the constitutional
operative proposition was a determination that the Fifth
Amendment privilege against self-incrimination applies at the
stage of custodial interrogation. Berman, supra, at 107–08
(discussing Miranda, 384 U.S. at 460–61). The decision rule designed
to enforce compliance took the form of a directive to lower courts
to presume any statement given without the benefit of the famous
Miranda warnings was coerced in violation of the Fifth
Amendment. See id. at 114–16 (discussing Miranda, 

).
    ¶25 Tracking such a distinction helps us to be principled and
methodical in the development of our precedent. See 

 at 92–93.
Despite our best efforts, experience often exposes an imperfect fit
between the rules we announce and “the reasons that underlie
[their] creation.” See id. at 85. When this happens, “doctrinal
refinement”—whether in the form of a minor tweak or, more
rarely, a substantial intervention—is necessary to align operative
proposition with decision rule. See id. at 92–93. To avoid crossing
the line from refinement into overruling, we endeavor to stay true
to both operative proposition and decision rule. 7 Yet where the two
conflict, it is the latter that yields. Cf. id. at 92–93 & n.311 (noting


__________________________________________________________
Prophylaxis in Modern State Constitutionalism: New Judicial Federalism
and the Acknowledged, Prophylactic Rule, 59 N.Y.U. ANN. SURV. AM.
L. 283, 298 n.62 (2003) (cleaned up).
   7   We have addressed the sometimes-narrow line between
refinement and overruling before. See, e.g., Rutherford, 

,
¶ 79 n.27 (our holding “clarified” rather than overruled precedent
where it “remain[ed] true to the [precedent’s] core holding” and
“d[id] the same work” as a test it concededly “transform[ed]”); In
re Adoption of Baby B., 

, ¶ 60 n.23, 

 (our
holding “clarif[ied] . . . latent ambiguities” in a past case where we
“left intact” that case’s “holding and essential standards”).

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                          STATE v. LABRUM
                        Opinion of the Court

that stare decisis may apply with less force to decision rules than to
operative propositions).
    ¶26 Although we do not overturn Brickey today, the case needs
refinement. Over the years, in the “somewhat confusing case law
interpreting Brickey,” State v. Pacheco-Ortega, 

, 

, we have tried valiantly, but ultimately
unsuccessfully, to wrangle Brickey’s gnomic pronouncements into
a workable and intellectually consistent system. We will try once
more today. We proceed first by attempting to decipher Brickey’s
precise holding on constitutional meaning and then by sanding
down its rule in light of that holding.
    ¶27 As a constitutional operative proposition, Brickey
announced that the Utah Due Process Clause “preclude[s] vesting
the State with . . . unbridled discretion” to refile criminal charges
after a magistrate judge has once found insufficient evidence to
bind a defendant over for trial. 

. This framing leaves
much to be desired. Unusually and unhelpfully, it is both hazy and
negative. That is, it identifies a state of affairs that due process
cannot possibly permit—one where the State could “easily harass”
defendants through refiling—and works backward. 

 at 646–47.
Brickey asserted that “[c]onsiderations of fundamental fairness”
militated against allowing unlimited prosecutorial discretion. But
we did not explain the constitutional origins or grounding of this
pronouncement. 

    ¶28 As the State correctly points out, Brickey lacked virtually
any discussion of our conventional sources of constitutional
interpretation: “text, historical evidence of the state of the law when
[the Utah Constitution] was drafted, and Utah’s particular
traditions at the time of drafting.” South Salt Lake City v. Maese, 

, ¶ 18, 

 (cleaned up). Brickey’s relative paucity of
analysis may be explained by the extreme behavior it confronted: a
prosecutor who shamelessly admitted that he would refile charges
“until [he got the defendant] bound over.” Brickey, 

.
Brickey did not have to decide very much to conclude that the
prosecutor’s behavior was incompatible with the promise of due
process. An unlimited refiling regime would effectively nullify the
preliminary hearing’s role as a “screening device,” see 

 since—at
least when faced with a prosecutor as relentless as Brickey’s—a
defendant could never truly vanquish meritless charges.
  ¶29 Oddly, given its underbaked discussion of constitutional
meaning, Brickey’s decision rule sweeps well beyond what was


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needed to resolve the case. First, it prohibits a prosecutor “from
refiling criminal charges earlier dismissed for insufficient evidence
unless the prosecutor can show that new or previously unavailable
evidence has surfaced or that other good cause justifies refiling.”
Id. at 647. Second, it instructs that, “when a charge is refiled, the
prosecutor must, whenever possible, refile the charges before the
same magistrate.” Id. The magistrate “does not consider the matter
de novo, but looks at the facts to determine whether the new
evidence or changed circumstances are sufficient to require a reexamination and possible reversal of the earlier decision dismissing
the charges.” Id. Brickey did little work to justify its decision rule,
instead simply asserting that the rule placed a “relatively small
burden” on prosecutors while “adequately protect[ing] the due
process interests of an accused.” Id. at 647–48.
    ¶30 Nor, finally, did Brickey sufficiently describe the nexus
between its operative proposition and decision rule. That is, it did
not explain why our Due Process Clause cabins the State’s
discretion over refiling in the precise ways the case announced. It
never squarely drew the line marking where prosecutorial
discretion devolves into unconstitutional harassment. Does the
constitutional violation occur where (1) a prosecutor refiles charges
with the subjective intent of harassing a defendant, (2) a defendant
suffers some level of harassment (how much?) due to refiling, or
(3) some combination of (1) and (2)? Brickey gestured to a couple of
these options, but did not clearly choose among them. See id. at 647.
In essence, Brickey tried to prevent a category of prosecutorial abuse
at the preliminary hearing stage without defining it or providing
judicially manageable standards for identifying it.
    ¶31 In State v. Morgan, we attempted to shore Brickey up,
elaborating its clipped constitutional operative proposition and
decision rule. See generally 

. Morgan helpfully clarified
the nature of the constitutional violation at stake in Brickey. The
“due process in [Brickey] cases,” Morgan wrote, guards against “bad
faith or misconduct of prosecutors.” Id. ¶ 22. Both in Brickey cases
and as a general matter, due process is not implicated by “ordinary
levels of inconvenience” to a defendant, nor even by “some level of
harassment and oppression,” standing apart from intentional
misconduct by the State. Id. (cleaned up). Properly viewed, then,
Morgan declaimed that the original purposes of the Brickey rule
were to (1) “protect defendants from intentional prosecutorial
harassment arising from repeated filings of groundless claims
before different magistrates” and to (2) “prevent[] the State from

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intentionally holding back crucial evidence to impair a defendant’s
pretrial discovery rights.” Id. ¶¶ 13–14 (emphases added). 8
    ¶32 But then, despite rooting Brickey’s operative proposition in
more firmly constitutional soil, Morgan went on to read Brickey’s
decision rule as a prophylactic measure several degrees removed
from adjudicating constitutional violations. See id. ¶ 16. In Morgan’s
restatement of Brickey’s rule, where “potential[ly] abusive
practices” taint an attempt to refile charges, a presumption arises
that “due process will bar refiling.” Id. The State can overcome this
presumption by showing good cause to refile. See id. ¶¶ 19, 21. The
State views this as a relaxation of the original rule because it dispels
Brickey’s implication that the State must always justify refiling,
even where there is no indication of foul play. Be that as it may,
Morgan also considerably heightened Brickey’s restrictiveness by
suggesting that Brickey did not concern itself with finding actual
due process violations, but instead with broadly regulating
prosecutors by throwing suspicion onto a set of “overzealous
practices” that carry mere potential for abuse. See id. ¶ 15. In short,
Morgan implied that the State can violate Brickey without violating
the Utah Constitution.
    ¶33 In this vein, Morgan also spoke of “innocen[ce],” id. ¶¶ 17–
19—another word that, like “presumption” and “potential,” can be
read to suggest that Brickey holds prosecutors to “best practices”
beyond the constitutional minimum. Morgan adopted “innocent
miscalculation” of the quantum of evidence necessary to secure
bindover as “a subsection of other good cause” to refile under
Brickey. Id. ¶ 19. By itself, this move was not particularly
problematic. But Morgan then held that for a miscalculation of

__________________________________________________________
   8 While we affirm Morgan’s reading that Brickey confined itself

to regulation of intentional prosecutorial conduct, we leave open
the question whether unintentional prosecutorial conduct might
violate Utah’s Due Process Clause in other ways. Cf. Pacheco-Ortega,

 (inferring from Morgan that “atypical” levels
of inconvenience to a defendant can implicate due process rights
outside of a Brickey context).
    Brickey’s second purpose—protecting defendants from
intentional infringement of their discovery rights—has been
abrogated by the ratification of the Victims’ Rights Amendment.
We discuss this issue and its ramifications for Labrum’s case in
section II(B), below.

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evidence to qualify as innocent, any “further investigation” of a
case after the denial of bindover had to be “nondilatory.” See 

    ¶34 Two subsequent cases developed this notion in potentially
dubious ways. In State v. Redd, we held that a prosecutor’s
miscalculation of evidence was not innocent where the State “failed
to provide a scintilla of evidence” as to one of three required
elements of a charged crime. 

. The State
contended that the statute required proof of only two elements. See
id. ¶ 15. We rejected this argument and held that the State could not
have “innocently miscalculated the quantum of evidence necessary
for a bindover” because “the State’s experienced legal counsel
should have been able to extrapolate these three simple elements
and provide evidence sufficient for a bindover.” Id. ¶¶ 14, 17. This
language is susceptible to at least two interpretations. It could
reflect an inference that the State’s error was so obvious that, under
the circumstances of the case, it was more likely than not a product
of bad faith. This would be broadly compatible with the way we
understand the task Brickey assigns to our courts.
    ¶35 Alternatively, Redd’s language could be read—as our court
of appeals has read it—to impose an affirmative duty on
prosecutors “to reasonably investigate” charges before filing them,
entirely apart from the requirement not to act in bad faith. See State
v. Dykes, 

, 

 (citing Morgan, 

, ¶¶ 13–14, and Redd, 

). As the court of
appeals developed this line of reasoning, “to constitute a truly
innocent mistake of law, just as with an innocent mistake of fact,
the prosecutor [1] must exercise some acceptable level of diligence
and [2] must not intend to harass the defendant.” 

 This first subrequirement effectively rewrites Brickey to prohibit negligent as well
as intentional forms of prosecutorial conduct at the preliminary
hearing stage. That goes beyond what Brickey held our constitution
mandates. As Morgan clarified, Brickey meant to protect against
“intentional” prosecutorial bad faith or misconduct. Morgan, 

, ¶¶ 13–14, 22.
    ¶36 In sum, Morgan correctly read Brickey’s holding on
constitutional meaning: Brickey stands for the proposition that the
Utah Due Process Clause protects defendants from harassment in
the refiling of criminal charges that is the product of prosecutorial
bad faith or misconduct. See id. ¶ 15. In other words, Brickey
instructs that the constitutional violation turns on prosecutorial
intent rather than on the degree of harassment suffered by a


                                 13
                          STATE v. LABRUM
                        Opinion of the Court

defendant standing alone—although the level of harassment can
support an inference that the State was operating in bad faith.
      ¶37 But Morgan’s tweak of Brickey ironically moved Brickey’s
decision rule further from the constitutional principles Morgan had
clarified. This shift was jurisprudentially misguided. Morgan read
Brickey to adopt a prophylactic rule—that is, a rule “not compelled
by the [c]onstitution, but necessary to combat a substantial
potential for constitutional violations.” 1 Wayne R. LaFave et al.,
Crim. Proc. § 2.9(h) (4th ed., Nov. 2024 update). Prophylactic rules
usually work by substituting the presence or absence of some
objective indicator for a factual determination that a constitutional
violation has occurred. See id. (explaining that prophylactic rules
“safeguard against a potential constitutional violation, rather than
. . . identify what constitutes a constitutional violation”).9
    ¶38 Prophylactic rules, with their strong presumptions and
proxy metrics, mark a departure from the default standard for
constitutional adjudication: proof of an actual constitutional
violation. See Berman, supra, at 10–11. This departure is sometimes
justified—where, for example, a prophylactic rule may be most
likely to reduce total adjudicatory error. See id. at 85–86. This, in
turn, may be the case where the nature of the evidence required to
prove a constitutional violation—such as evidence about the intent
of government actors—is difficult to measure or obtain, making
vindication of the right under the ordinary standard difficult or
impossible. See id. at 61–63; 1 LaFave et al., Crim. Proc. § 2.9(h).
  ¶39 Even in those circumstances where a prophylactic rule
may be warranted, however, in Utah there may be reasons to

__________________________________________________________
   9  Most famously, Miranda and its progeny determined that
police failure to administer the so-called Miranda warnings prior to
custodial interrogation gives rise to a conclusive presumption that
the Fifth Amendment right against self-incrimination has been
violated. See 1 LaFave et al., Crim. Proc. § 2.9(h) (discussing Miranda,

). Another U.S. Supreme Court case, North Carolina v.
Pearce, 

 (1969), overruled on other grounds by Alabama v.
Smith, 

 (1989), created a conclusive presumption
that judges act vindictively, in violation of a defendant’s
Fourteenth Amendment due process rights, when they fail to
articulate objective reasons for handing down a higher sentence
after a defendant’s successful appeal (and subsequent retrial and
reconviction). See 

 at 725–26; see also Berman, supra, 62 n.206.

                                  14
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                       Opinion of the Court

believe that they are better promulgated through rule than court
decision. Cf. Thomas G. Saylor, Prophylaxis in Modern State
Constitutionalism: New Judicial Federalism and the Acknowledged,
Prophylactic Rule, 59 N.Y.U. ANN. SURV. AM. L. 283, 308–09 (2003)
(arguing that the legitimacy of prophylactic rules is enhanced
where state supreme courts adopt them pursuant to their
“constitutionally prescribed, supervisory powers”); see UTAH
CONST. art. VIII, § 4 (vesting primary rulemaking power in the
supreme court). Our rules committees can take advantage of broad
stakeholder input and other information-gathering tools to suggest
changes to rules of procedure. We publish those rules for public
comment in hopes of soliciting even more feedback on how the rule
will function. With this informational advantage, we may be better
suited to craft a prophylactic rule when we act in our rule-making
capacity, rather than when we act in our case-adjudication role.
When we have the benefit of perspectives beyond those of the
parties to a case at bar, we can be better situated to make judgments
about the rate of adjudicatory error and the likelihood that a proxy
measure will best serve justice.
    ¶40 An additional advantage of the rule-making process: it is
more flexible than constitutional adjudication. Our committees can
propose tweaks to rules in response to new data or changing legal
landscapes. The Legislature can amend rules of procedure and
evidence by a two-thirds vote. See id. art. VIII, § 4. By contrast, we
can change our constitutional holdings only when an issue comes
before us on appeal—and, generally, only where at least one party
has fully briefed both Eldridge factors. See Baker v. Carlson, 

, ¶ 16 n.3, 

 (deeming appellants’ failure to address
the Eldridge factors “fatal” to their call to overturn precedent). And
the Legislature can alter our constitutional holdings only by
submitting an amendment to the people in the manner the
constitution dictates. See UTAH CONST. art. XXIII, § 1.
   ¶41 We understand why Morgan read Brickey’s decision rule as
prophylactic. The rule, adopted from Oklahoma, was certainly
prophylactic in origin. See Brickey, 

. Oklahoma’s rule
sharply limited Oklahoma prosecutors’ ability to refile on the
grounds that unlimited refiling wastes judicial resources and that
“refiling . . . may constitute harassment of an accused” in violation
of “fundamental due process.” Jones v. State, 

(Okla. Crim. App. 1971), superseded by statute, 1990 Okla. Sess.
Laws, ch. 261, § 4, as recognized by Haliburton v. State, 

(Okla. Crim. App. 2024) (cleaned up) (emphasis added). This rule

                                 15
                          STATE v. LABRUM
                       Opinion of the Court

was classically prophylactic in design, in that it “safeguard[ed]
against a potential constitutional violation” by adopting a
categorical proxy measure, “rather than . . . identify[ing] what
constitutes a constitutional violation.” See 1 LaFave et al., Crim.
Proc. § 2.9(h). Importantly, however, the Oklahoma court adopted
its model under the aegis of its supervisory powers, rather than
through a holding about constitutional meaning. See Haliburton, 546
P.3d at 897–98 (recognizing a statutory override of the Jones line of
cases).
    ¶42 Brickey transplanted Oklahoma’s supervisory rule into
Utah’s constitutional soil. It is possible that Brickey misunderstood
the basis of the cases from which it borrowed. But whether it
misread these cases or not, Brickey itself announced an
unambiguously constitutional holding, noting that it “address[ed]”
Brickey’s claim “under” Utah’s Due Process Clause. 

.
Brickey also suggested that, having surveyed the various state
approaches to the problem of harassment through refiling, it had
chosen to act through “court decision[]” rather than through “court
rule[].” 

.
    ¶43 We are left with a somewhat mystifying situation. Brickey
shows some awareness that the constitutional basis of its decision
differed in important ways from the supervisory basis of
Oklahoma’s rule. See 

 And yet it “adopt[ed]” Oklahoma’s
approach without explaining how that approach might look
different when refracted through an exclusively constitutional lens.
See 

 at 647–48.
    ¶44 This is where the distinction between constitutional
operative proposition and decision rule comes in handy. Morgan
read each of these parts of Brickey well but failed to reconcile the
tension between them. Faced with the apparent incongruity
between Brickey’s operative proposition and its decision rule,
Morgan should have bent the decision rule to the operative
proposition. This hierarchy is not an arbitrary preference. It stems
from the very nature of the two concepts and their relation to stare
decisis: decision rules exist to enforce our constitution, the meaning
of which we determine and crystallize into operative propositions.
See Berman, supra, at 85, 92–93. When decision rules break anchor
from the operative propositions that authorize them, they lose their
legitimacy. See id. at 85. As a result, they may end up overenforcing
or underenforcing the right they were designed to protect. Or they
may spawn unforeseen collateral consequences in other areas of


                                 16
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                       Opinion of the Court

law. Thus, when we ensure that a decision rule properly maps onto
its operative proposition, we save—or at least, salvage—our
precedent, rather than spurn it.
    ¶45 With these principles in mind, we finish the job Brickey
began: thinking through how Oklahoma’s decision rule can be
made to serve the standard of constitutional adjudication—proof
that violation of a constitutional right has occurred. To begin with,
Brickey shifted the burden of proof from the defendant asserting the
constitutional right to the State. See Brickey, 

. This
change makes sense. It will ordinarily be difficult for a defendant
to obtain evidence of prosecutorial intent. Cf. Gordon v. State, 

, 

 (noting that the burden of proof
“appropriately shift[s]” to the non-pleading party “where the
responding party has unique access to proof of the matter in
question”). So Brickey left it to the prosecution to produce evidence
of its own motives. As long as Brickey remains good law, the State
must show that it did not act in bad faith when it refiled dismissed
charges. See Brickey, 

.
     ¶46 We fill out the rest of the revised Brickey procedure as
follows. There is no presumptive limitation on a prosecutor’s
ability to refile criminal charges that have been dismissed for
insufficient evidence at the bindover stage. Contra Morgan, 

. If the prosecution refiles, a defendant may elect to file a
Brickey motion. In that motion, the defendant must articulate a
reasonable basis to believe that the State refiled the charges in bad
faith or with intent to harass. This intent can be linked to behaviors
we have identified in our caselaw: “forum shopping,” “repeated
filings of groundless and improvident charges for the purpose to
harass,” or refiling after “providing no evidence for an essential
and clear element of a crime at a preliminary hearing.” Redd, 

. But that list is not exhaustive. Fundamental fairness
remains Brickey’s lodestar. See Morgan, 

. The
defense may identify any behavior it believes contributes to an
overall inference of bad faith or intent to harass. After the defense
has filed its motion, the State must show, by a preponderance of the
evidence, why its behavior was not the product of bad faith or an
intent to harass. 10 The defense may then seek to rebut the State’s
 __________________________________________________________
   10 Our past language on “innocence” is relevant only to the

extent that it is taken to mean that the State is required to show, by
a preponderance of the evidence, that it is innocent of bad faith or
intent to harass.

                                 17
                           STATE v. LABRUM
                         Opinion of the Court

showing. Finally, the district court “sort[s] through the evidence”
and determines whether the State has carried its burden. Cf. Gordon,

 (explaining the procedural steps in a scenario
where, as here, the burden shifts to the non-moving party to
disprove a fact by a preponderance of the evidence (citing UTAH
CODE § 78B-9-105(2)).
II. GUIDANCE FOR REMAND
    ¶47 Having clarified the correct legal standard, we remand for
the district court to apply it in the first instance. See State v. Antonio
Lujan, 

, 

 (noting that where “we have
substantially reformed the law in [a] field,” we are “inclined to
remand to the district court to allow it to apply our new standards
to the facts”). Below, we provide guidance on each of the four
errors the State claims to have identified in Magistrate’s ruling.
   A. “No Evidence” of Rape’s Nonconsent Element
    ¶48 Magistrate first determined that the State “presented no
evidence as it related to the ‘without consent’ element” of rape. She
acknowledged that the State had “attempted to present evidence”
on that element. But she then seemed to conflate an ultimately
unsuccessful attempt to present sufficient evidence on an element
of a crime with a failure to present any evidence at all, writing that
“[t]he State failed to meet its burden and thus the cause of action
[was] not colorable.” (Emphasis added.) She accordingly
concluded that, under governing caselaw, the State was barred
from refiling because it had provided “no evidence for an essential
and clear element of a crime” and lacked good cause to overcome
that presumptively abusive practice. (Quoting State v. Redd, 

, 

.)
    ¶49 Magistrate relied on State v. Redd, 

, to reach its
conclusion. In Redd, we held that the State misread a statute to
require only two elements where it actually contained three and
consequently failed to mount any evidence of one of those three
elements. 

. This failure comprised a
“potentially abusive practice” where the three elements were
“simple,” such that “the State’s experienced legal counsel should
have been able to extrapolate” them from the statutory text. 

 We
could have been clearer on the precise contours of this holding. It
is possible to misunderstand our decision in Redd as imposing a
duty of diligence on prosecutors in a quest to regulate even
negligent behavior through Brickey. See supra ¶¶ 34–35.


                                   18
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                        Opinion of the Court

    ¶50 That is not how we read Redd. Instead, we tie the holding
tightly to its facts: that is, Redd reasoned that, under the
circumstances, the State’s error was so obvious that it likely
resulted from bad faith. This interpretation is supported by a close
reading of Redd—particularly, its reference to the prosecutor’s
experience level and its conclusion that the State had not acted
“innocently” (to flip Redd’s negative: an absence of innocence
implies the presence of malintent). See 

. This
reading also better aligns with the principles animating Brickey and
our constitutional jurisprudence more broadly: in each case, a
judge must determine whether the State’s behavior supports an
inference of bad faith or intent to harass under the totality of the
circumstances.
    ¶51 We do not wish to be understood as minimizing the State’s
alarming behavior in Redd. Failure to present even “a scintilla of
evidence” on an element of a crime at a preliminary hearing,
particularly where that element is clear on the face of the
authorizing statute, see id. ¶ 17, can sustain an inference of bad
faith.
    ¶52 But, in any event, that is not what happened here.
Magistrate failed to recognize that a gap exists between “no
evidence” and the quantum of evidence required to secure
bindover. The threshold required to secure bindover is probable
cause, which we have defined in the preliminary hearing context as
“sufficient evidence to support a reasonable belief that an offense
has been committed and that the defendant committed it.” State v.
Clark, 

, 

. We have also stated that “this
evidence need not be capable of supporting a finding of guilt
beyond a reasonable doubt.” Id. ¶ 15. And, further, that “[i]t is not
appropriate for a magistrate to weigh credible but conflicting
evidence at a preliminary hearing, because such a hearing is not a
trial on the merits.” State v. Schmidt, 

, 

(cleaned up). “Rather, magistrates must leave all the weighing of
credible but conflicting evidence to the trier of fact and must view
the evidence in a light most favorable to the prosecution, resolving
all inferences in its favor.” 

 (cleaned up). Thus, the quantum of
evidence required to clear this standard is “relatively low,” id. ¶ 17
(cleaned up)—but it is still greater than zero. It is fully possible for
the prosecution to put on some evidence and still fail to meet its
burden of establishing probable cause.




                                  19
                          STATE v. LABRUM
                       Opinion of the Court

    ¶53 That is what happened here. The statutory definition of
“[p]osition of special trust” is divided into two parts: a list of
specific positions—such as aunt, adult sibling, or babysitter—and
a catch-all for “any individual in a position of authority . . . which
enables the individual to exercise undue influence over the child.”
UTAH CODE § 76-5-404.1(1)(a)(iv). Several portions of the State’s
reliable hearsay statements support “a reasonable belief,” Clark,

, that Labrum fell into the catch-all category and
thus occupied a position of special trust relative to T.S.:
   •   T.S. met Labrum when he was between six and eight years
       old. She was in his life as a close family friend for nearly a
       decade before they began having sex.
   •   T.S.’s sister and Mom were especially close with Labrum.
       Labrum would spend time with all the kids as they were
       growing up.
   •   Labrum attended many of T.S.’s high school football games
       and T.S.’s sister’s soccer games.
   •   Mom said that Labrum was “like [her] little sister,” that she
       “looked at [Labrum] as blood,” and that she called and saw
       Labrum more often than her “own blood relatives.”
   •   Mom said she “trusted [Labrum] with [her] children, [her]
       house and [her] dog.”
It is not entirely clear from the State’s evidence the precise nature
of the “authority” Labrum allegedly exercised over T.S. See UTAH
CODE § 76-5-404.1(1)(a)(iv)(W). There is perhaps an argument to be
made that Labrum functioned as something of an aunt or an adult
sibling—and, further, that the kinds of “authority” satisfying the
catch-all definition include the trust and deference between a child
and an aunt-like family friend just as much as the strictly
hierarchical relation characterizing other entries on the statutory
list, such as that between a child and a coach or a child and a
religious leader. See id. § 76-5-404.1(1)(a)(iv). The State did not
advance an argument of this type—nor much of any other—in its
sparse oral presentation at the first preliminary hearing.
   ¶54 Nevertheless, it is not the case that the State put on no
evidence in support of the Special Trust Theory. To borrow
language from the court of appeals, where “the State put[s] on
evidence, albeit unsuccessfully, intended to demonstrate” a clear
element of a crime charged, “it cannot be said that the State failed


                                 20
                         Cite as: 

                        Opinion of the Court

to present any evidence” of that element. State v. Dykes, 

, 

.
    ¶55 Simply stated, Redd cannot be used to definitively establish
that the State acted in bad faith for both legal and factual reasons.
That is, Redd did not establish the per se rule Magistrate’s order
suggested it did. And, even if it had, Labrum’s case is factually
distinguishable. Labrum is free to argue below that the paucity of
argument presented on the Special Trust Theory gives rise to an
inference that the State operated in bad faith when it refiled the
charges, but she cannot use Redd to say that the dearth of argument
at the original hearing compels that conclusion.
   B. Withholding Key Legal Theories
    ¶56 The next ground Magistrate gave for granting Labrum’s
motion to dismiss was that the State impermissibly withheld its
Enticement Theory of rape by failing to present it at the first
preliminary hearing. Magistrate offered two interlocking reasons
for why the State’s behavior was impermissible. First, to permit a
contrary result would allow the “State to gain an unfair advantage
by surprising the defense with an entirely new legal theory,
especially after defense counsel has exhaustively prepared for
another theory.” Second, withholding a legal theory “is akin to
withholding evidence[,] which is clearly prohibited under Brickey.”
The State argues that the 1995 Victims’ Rights Amendment (VRA)
to the Utah Constitution invalidates the legal premises underlying
both reasons. We agree.
     ¶57 The fairness that due process requires must be evaluated
in light of the purpose animating a given stage of criminal
proceedings. See, e.g., State v. Brickey, 

 (Utah 1986)
(before announcing the Brickey rule, we considered “the nature and
purpose of a preliminary hearing”). The VRA markedly changed
the nature of preliminary hearings. Prior to voters’ ratification of
the VRA, preliminary hearings functioned “in part [as] a discovery
device—a means by which the defendant could discover and
preserve favorable evidence.” State v. Lopez, 

, 

 (cleaned up). The VRA “eliminated the ancillary discovery
purpose of the preliminary hearing and limited that proceeding to
the determination of probable cause.” Id.; see also UTAH CONST. art.
I, § 12 (“Where the defendant is otherwise entitled to a preliminary
examination, the function of that examination is limited to
determining whether probable cause exists unless otherwise
provided by statute.”). Although the amendment was ratified


                                  21
                           STATE v. LABRUM
                        Opinion of the Court

nearly thirty years ago, some branches of our caselaw have yet to
fully register its impact. See State v. Goins, 

, 

 (recognizing that certain portions of our caselaw will need to
be “revisit[ed]” in light of the VRA as issues are placed “squarely
before us”).
    ¶58 Today we clarify that, given the “limited” function of the
preliminary hearing post-VRA, see 

 the prosecution’s decision to
not introduce all evidence available to it does not, without a
separate finding of bad faith or intent to harass, support granting a
Brickey motion. This means the second purpose of Brickey—to
“prevent[] the State from intentionally holding back crucial
evidence to impair a defendant’s pretrial discovery rights,” State v.
Morgan, 

, 34 P.3d 767—is abrogated; it now lacks
state constitutional grounding. 11 While the defendant retains
constitutional pretrial discovery rights, and while rule or statute
can provide defendants with greater protections at the preliminary
hearing phase than the constitutional baseline, see Lopez, 

, the State is not obligated to introduce evidence at the
preliminary hearing stage beyond what is necessary to establish
probable cause. The State continues to have an incentive to present
more than enough evidence so as to sail safely over the bindover
threshold. But, after the VRA, it is not constitutionally required to
present all of its evidence. As such, the decision not to introduce
some portion of that evidence, without more, does not violate our
Due Process Clause.
    ¶59 Thus, Magistrate’s analogy between withholding legal
theories and withholding evidence loses much of its force in a post-VRA world. Since the sole purpose of the preliminary hearing is to
determine probable cause, defendants no longer possess a state
constitutional right to use the preliminary hearing to acquire any
information—legal or factual—to help them to meet the State’s case
at trial. Nevertheless, this rule does not grant prosecutors carte
blanche. If the State fails to obtain bindover at an original
preliminary hearing and subsequently presents new evidence or a

__________________________________________________________
   11 Because we are not overruling this portion of our precedent,

but rather merely recognizing its abrogation, we are not required
to consider the Eldridge factors. See Goins, 

(explaining that “our precedent must yield when it conflicts with a
validly enacted statute” or “a constitutional amendment” (cleaned
up)).

                                   22
                         Cite as: 

                       Opinion of the Court

new legal theory at a second hearing, a judge may infer that the
new evidence or theory was withheld for the purpose of harassing
a defendant through “repeated filings of groundless claims.” See
Morgan, 

. Whether that is the correct inference will
depend on the totality of the circumstances. 12
    ¶60 Here, the State cites a couple reasons why its failure to
present the Enticement Theory at the first preliminary hearing was
not the product of bad faith. First, it claims Assigned Prosecutor
planned to argue both the Special Trust Theory and the Enticement
Theory of nonconsent from the beginning and points out that
Assigned Prosecutor recalls informing Stand-In Prosecutor of that
plan. Second, it argues that Stand-In Prosecutor’s decision to
reduce the charges, even if it stemmed from a lack of confidence in
the case (as Labrum alleges), does not mean that Assigned
Prosecutor acted in bad faith in refiling the charges. This is because
prosecutors often disagree about the strength of a case. (Citing
United States v. Lovasco, 

 (1977) (“The determination
of when the evidence available to the prosecution is sufficient to
obtain a conviction is seldom clear-cut, and reasonable persons
often will reach conflicting conclusions.”).)
    ¶61 Magistrate erred in categorically dismissing these
proffered explanations as “internal office politics” that necessarily
lie beyond the ken of a judge reviewing a Brickey motion. The
purpose of the Brickey rule is to prevent “intentional” prosecutorial
harassment. Morgan, 

. As such, Magistrate’s belief
that she “cannot speak to assigned prosecutor’s state of mind or
intent” gets things backwards. That is precisely the job. 13 On

__________________________________________________________
   12 The easiest way for the State to show that new evidence was

not withheld in bad faith remains for it to show that the evidence
was not withheld at all—i.e., that the evidence is “new [to the State]
or previously unavailable.” Brickey, 

.
   13 While the Brickey inquiry ultimately turns on a determination

of prosecutorial intent, we emphasize that the requisite intent may
be inferred from objective procedural developments and
statements in open court. The State need not offer, and the district
court need not consider, purely subjective state-of-mind evidence
in every case—or perhaps even in most cases. As emphasized
above, the court looks at the totality of the circumstances before it
to determine whether the refiling is the product of bad faith or an
intent to harass or other prosecutorial misconduct.

                                 23
                           STATE v. LABRUM
                        Opinion of the Court

remand, Magistrate should weigh the evidence that the State—
through either of its agents, Assigned Prosecutor or Stand-In
Prosecutor—acted in bad faith when it failed to argue the
Enticement Theory at Labrum’s first preliminary hearing and
subsequently refiled the charges. If the State carries its burden, it
may argue the Enticement Theory at a second preliminary hearing.
   C. Forum Shopping
    ¶62 In the State’s view, Magistrate dismissed the second case
in part because Assigned Prosecutor failed to ensure that the refiled
charges were assigned to Magistrate. It is not clear to us that
Magistrate actually ruled on that basis. In distinguishing a court of
appeals case, largely on other grounds, Magistrate noted in passing
that the prosecutor in that case had brought “the refiled action . . .
before the same magistrate,” lending support to the court of
appeals’ overall determination that no abusive practice had
occurred. See Dykes, 

. Magistrate then wrote,
“Ironically, in this refiled action the matter was not brought before
the same trial judge, and, in fact, it was the Court, not the State, that
corrected that error.” In context, Magistrate seemed to be
suggesting just one unfavorable comparison point to Dykes’ facts
among several. Nowhere did she unequivocally rule that forum
shopping occurred.
    ¶63 Moreover, Magistrate did not include forum shopping in
a list of the parties’ arguments that her ruling would address. This
omission is perhaps significant. Labrum disavowed any forum
shopping claim in her motion to dismiss—before raising the claim
in her reply in support of that motion. By not including forum
shopping in a recitation of the parties’ arguments, Magistrate
appeared to signal that she intended to disregard Labrum’s late
contention. This would comport with Magistrate’s statement, made
at oral argument on the motion to dismiss, that “nothing before the
[c]ourt” made it “think that the State [was] forum shopping.”
Additionally, Labrum does not respond to the State’s forum
shopping arguments on appeal, perhaps suggesting she does not
discern any ruling on those grounds in Magistrate’s dismissal—or
at least, none that could stand as an independent basis for
affirmance.
    ¶64 Nevertheless, in the event Labrum decides to pursue the
issue on remand and Magistrate deems it not waived, we offer
some guidance on the adjudication of forum shopping claims.
Brickey announced a categorical duty for prosecutors, holding that


                                   24
                         Cite as: 

                        Opinion of the Court

“when a charge is refiled, the prosecutor must, whenever possible,
refile the charges before the same magistrate.” 

(emphasis added). But Brickey did not clearly state what
consequences would follow from a prosecutor’s failure to abide by
that duty—whether dismissal or something less. In line with the
general approach we announce today, we decline to treat this
portion of Brickey as a prophylactic rule, the failure to follow which
automatically amounts to a constitutional violation. Instead, the
“duty” is best taken as a kind of safe harbor provision: if a
prosecutor ensures that charges are refiled with the same
magistrate who heard the original case, a defendant will
necessarily struggle to make out a case that forum shopping has
occurred.
    ¶65 Despite the confusion in our prior articulation of the
Brickey rule, we believe all our Brickey cases effectively applied just
this analytical rubric to forum-shopping arguments. Brickey itself
dealt with a prosecutor who “candidly admitted that he was forum-shopping.” 

 Morgan concluded that a prosecutor was not forum
shopping where “the second preliminary hearing was held before
the same magistrate” and where there was no evidence of subjective
intent to forum shop. 

 (noting that, “unlike the
prosecutor in Brickey,” the Morgan prosecutor did not “admit[] he
would refile until obtaining a bindover”). Morgan thus framed the
State’s compliance with the Brickey duty to refile in front of the
same magistrate as just one factor—albeit a potentially dispositive
one under the facts of that case—in a holistic inquiry into whether
forum shopping had occurred. Morgan did not, in other words,
confine its analysis to whether the prosecutor had complied with a
mechanical duty, but considered all relevant evidence. See 

    ¶66 The court of appeals modeled the correct approach to
forum shopping claims in State v. MacNeill, 

, 

. There, the court held that Brickey did not apply to the
refiling because the State had voluntarily dismissed the original
charges after a successful bindover; but the court went on to
consider a residual forum shopping claim grounded in our Due
Process Clause. Id. ¶¶ 17, 19. For such a claim, the court held,
“without some demonstration that a party has set about to forum
shop or at least an articulated reasonable basis for concluding that
the party has a motive to forum shop, we will not assume that
forum shopping has occurred.” Id. ¶ 20. The court of appeals
accordingly examined the record to determine whether the State
had engaged in forum shopping, including whether the original

                                  25
                            STATE v. LABRUM
                       Opinion of the Court

judge had given the State a motive to do so by “tipp[ing] her hand”
against the State. See id. ¶¶ 20–22.
    ¶67 The original judge in MacNeill granted bindover. Id. ¶ 21.
The State then moved to dismiss the charges—for reasons not
appearing in the record—only to refile them months later in front
of a different judge. Id. ¶¶ 2, 21. The defendant alleged forum
shopping, but the original judge’s favorable bindover ruling
significantly undermined the defendant’s attempts to show that the
State had some reason to prefer a different judge in the refiled
proceeding. See id. ¶ 21. Additionally, the MacNeill court attached
significance to the fact that the assignment of the second case to a
different judge “was a matter of random distribution or other inhouse protocol of the [district court]; it was not something
orchestrated by the State.” Id. ¶ 20 n.4.
    ¶68 In contrast to the facts of MacNeill, the State will tend to
have at least some motive to forum shop in a Brickey case—by
definition, the original judge will have ruled against the
prosecution at the first preliminary hearing. But even so, “we will
not simply assume” that the State acted with “improper motives.”
Id. ¶ 22. There must be some “evidence or reason to believe the
State was” in fact “attempting to shop for a more advantageous
forum.” Id.
    ¶69 Here, Magistrate noted that the district court’s e-filing
system was by default “required” to assign all cases involving the
same defendant to the same judge. She thus attributed the
assignment of the second case to a different judge to a technological
error and reasoned that there was not “anything nefarious on the
part of the State there in re-filing.” To use MacNeill’s parlance, the
switch was not “orchestrated by the State.” Id. ¶ 20 n.4. On this
record, then, Labrum’s case for forum shopping is weak. But
because Magistrate faulted the State for not proactively seeking to
have the case reassigned to the original magistrate and because
there is some ambiguity as to whether forum shopping was one of
the bases for her ruling, we do not definitively resolve the issue in
this appeal.
   D. Choice of Procedure
   ¶70 Finally, Magistrate dismissed the second case because the
State did not appeal the Special Trust Theory before refiling to
argue both theories. As discussed above, the State chose to file a
motion to reconsider the first case—causing it to miss the deadline
for appeal. Magistrate believed she would have had to adopt

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                         Cite as: 

                        Opinion of the Court

“innocent choice of procedure” as a new subcategory of good cause
to permit refiling of the Special Trust Theory. She declined to do so,
reasoning that the State was aware of the relevant deadlines and,
having chosen between available alternatives, had to “live with its
actions.” She thought that allowing the State to walk down both
procedural paths would inevitably “implicat[e] a defendant’s due
process rights . . . under Brickey” by giving the State “a second bite
at the apple” in every case.
    ¶71 The State argued below that it opted for a motion to
reconsider “[i]n a calculated effort to avoid the time and cost of an
appeal for all parties and to preserve judicial economy.” At that
point, an appeal could have proceeded only on the Special Trust
Theory—because that is all that had been put before Magistrate
and, therefore, preserved. If the appeal had been unsuccessful, the
State might have attempted to refile on the Enticement Theory,
subjecting Labrum to a fresh round of litigation. Faced with the
choice between filing a motion for reconsideration—in which it
could present both theories at once—and immediately appealing,
the State contends the choice it made was “not unreasonable” and
was in fact “[a]rguably” more favorable to Labrum than the
alternative.
    ¶72 Canvassing our law on appellate jurisdiction and the
Brickey line of cases, we find no requirement rendering the State’s
ability to refile charges contingent on whether it has appealed the
dismissal of the first case. Rule 7B(c) of the Utah Rules of Criminal
Procedure, for example, permits refiling after dismissal without
imposing appeal as a precondition. See UTAH R. CRIM. P. 7B(c)
(explaining that “dismissal and discharge” for lack of probable
cause “do not preclude the state from instituting a subsequent
prosecution for the same offense”). Thus, in accordance with our
general approach, the State’s choice of procedure, where plausibly
challenged by a defendant, goes into the totality stew that the
district court samples for inferences of bad faith or intent to harass.
    ¶73 In the present circumstance, we agree with the State that
both procedural routes available to it raised the prospect of
inconveniencing Labrum. Appeals are often time-consuming and
costly. If the State were to subject a defendant to a preliminary
hearing on a totally new legal theory after that defendant had spent
years contesting an appeal on a different theory, the inference of
intentional harassment might be strong. On the other hand, if a
prosecutor were to wend her way through alternative legal theories


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                          STATE v. LABRUM
                        Opinion of the Court

across multiple filings, that would “raise[] the intolerable specter of
the State’s continually harassing a defendant who previously had
charges dismissed for insufficient evidence.” Morgan, 

. As ever, the best way for the State to avoid a Brickey problem
is to present its “best case at the [first] preliminary hearing.” See
State v. Jaeger, 

 (Utah 1994). But there can be a gap
between best practices and the constitutional floor. And without
more, it is not clear that a prosecutor’s decision to refile with an
original theory and a new theory instead of immediately appealing
the original theory compels an inference of bad faith or intent to
harass. It remains for the fact finder to weigh competing inferences
under the totality of the circumstances.
                          CONCLUSION
     ¶74 We vacate the district court’s order granting Labrum’s
motion to dismiss and remand for new proceedings under the
clarified Brickey standard. Labrum may identify any actions by the
State that are susceptible to an inference of bad faith or misconduct.
The prosecution may then put on evidence tending to show that it
did not act in bad faith. Once Labrum has had a chance to respond,
the district court should consider all the circumstances to
determine whether the State acted in bad faith. If the State prevails,
it is entitled to a second preliminary hearing, where it may raise
either or both of its theories of nonconsent. If Labrum prevails, the
State may proceed on the lesser charges bound over after the first
preliminary hearing, but it may not seek to reintroduce the rape
charges.




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