267 P.3d 210 - State v. Walker

Justice NEHRING,

¶1concurring:

¶2T20 Like Justice Lee, I concur in Associate Chief Justice Durrant's excellent opinion for the court. The magistrate in this case had probable cause to issue a warrant authorizing the acquisition of Ms. Walker's blood sample. And like Justice Lee, I agree that we ought to affirm on that narrow basis.1

¶3121 I write separately in this case to respectfully express my disapproval of Justice Lee's decision to write at length on a topic that does not affect the resolution of this case. Like all of my colleagues, I disagree with many judicial opinions. I have even come to take issue with opinions I have authored for the court. But I also believe that giving voice to those opinions should be reserved for an occasion where the issues presented are properly before the court.2 This is not one of those occasions.

¶4 *215¶22 I agree with Justice Lee that in some circumstances, it is appropriate for an appellate court to address nondispositive issues in a case to give guidance to the lower court regarding further proceedings on remand.3 Under rule 30(a) of the Utah Rules of Appellate Procedure, this type of guidance is expressly permitted, and allows our court to "pass upon and determine all questions of law involved in the case presented upon the appeal and necessary to the final determination of the case." 4 But in this case, the trial court needs no such guidance on remand. This court unanimously concludes that the officer conducted a reasonable search,5 and therefore the trial court has all the information necessary to resolve the case and needs no direction on the issue of exclusion.

¶5123 I also disagree with Justice Lee's characterization of his opinion as an "alternative ground" 6 for resolving this appeal. Although it is true that "[t}his case presents two constitutional questions of equal dignity," 7 it is also true that these constitutional issues are sequential, and contrary to Justice Lee's statement, one question does take priority over the other. Indeed, if the court unanimously concludes, as it has in this case, that there was probable cause for a search, then the second constitutional question of what the remedy would be if the search were conducted without probable cause becomes merely hypothetical, To reach the second question, Justice Lee must assume there was mo probable cause for the search, which is inconsistent with the court's unanimous holding in this case. Thus, instead of an "alternative ground" for affirmance, Justice Lee's concurring opinion is simply a commentary on his preferred resolution of a set of facts different from those presented by this case.

¶624 Let me be clear, I do not fault Justice Lee for using his concurring opinion as a vehicle for communicating his strongly held views about whether the Utah Constitution contemplates an exclusionary rule as a remedy for violations of article I, section 14. I note only that I disagree with his choice to voice this view in a case where we unanimously conclude that probable cause existed for the search,. In cases where we conclude that probable cause exists, we typically decline to address the constitutional arguments brought by the parties, even when fully briefed and argued before the court.8 I see no reason to depart from this practice in the present case.

¶71 25 The issue of whether the Utah Constitution contemplates an exclusionary rule is a controversial one. I have no doubt it will come before the court again, and that, when it does, Justice Lee will express a strong opinion about it. I also have strong opinions *216on this subject, but unlike Justice Lee, I believe we should save this conversation for another day-for a case where there is an actual violation of article I, section 14 and it is thus necessary and appropriate to engage in this analysis.

126 Chief Justice DURHAM and Justice PARRISH concur in Justice NEHRING's concurring opinion.

¶8. See Gallivan v. Walker, 2002 UT 89, ¶ 97, 54 P.3d 1069 (Durham, C.J., concurring) ("[Clourts should generally resolve cases on the narrowest applicable grounds unless specific reasons exist for offering broader guidance." (emphasis added)).

¶9. See Clegg v. Wasatch Cnty., 2010 UT 5, ¶ 26, 227 P.3d 1243 ("Indeed, where any direction we may provide ... may ultimately prove to be irrelevant, or where there are possible circumstances under which we would not need to address [a constitutional claim], to do so would be to impermissibly render an advisory opinion." (first alteration in original) (citation and internal quotation marks omitted)); Summit Water Distrib. Co. v. Summit Cnty., 2005 UT 73, ¶ 50, 123 P.3d 437 ("Our settled policy is to avoid giving advisory opinions in regard to issues unnecessary to the resolution of the claims before us."); Utah Safe to Learn-Safe to Worship Coal., Inc. v. State, 2004 UT 32, ¶ 19, 94 P.3d 217 (" 'The courts are not a forum for hearing academic contentions or *215rendering advisory opinions.'" (quoting Baird v. State, 574 P.2d 713, 715 (Utah 1978))); Gallivan, 2002 UT 89, ¶ 97, 54 P.3d 1069 (Durham, C.J., concurring) ("[Clourts should generally resolve cases on the narrowest applicable grounds unless specific reasons exist for offering broader guidance."); Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 962 n. 1 (Utah 1986) (''This Court will not issue advisory opinions."); Justheim v. Div. of State Lands, 659 P.2d 1075, 1077 (Utah 1983) ("It is not our function to render advisory opinions."); Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980) ("[Clourts do not busy themselves with advisory opinions."); Koer v. Mayfair Mkts., 19 Utah 2d 339, 431 P.2d 566, 571 (1967) ("We adhere to our policy not to render advisory opinions as to requests irrelevant and immaterial to the issues on appeal."); State v. Kallas, 97 Utah 492, 94 P.2d 414, 424 (1939) (refusing to address the constitutionality of a statute where it was not determinative of the party's rights); see also Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944) ("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.").

¶10. See infra ¶ 62 & n.19.

¶11. Utah R. App. P. 30(a) (emphasis added).

¶12. See supra ¶ 17.

¶13. See infra ¶ 28.

¶14. See infra ¶ 62.

¶15. See, e.g., State v. Anderson, 701 P.24 1099, 1103 (Utah 1985) (""In light of our determination that there was sufficient probable cause to issue the search warrant and that the search was properly undertaken, we need not reach the constitutional issue."); see also State v. Thurman, 846 P.2d 1256, 1262 (Utah 1993) ("[JJudicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." (internal quotation marks omitted)).