I am catching up on recent Utah appellate court decisions. There are a series about Magistrates and Commissioners not complying with Rule 41 of the Criminal Rules -- basically, not keeping control over warrants and affidavits supporting but letting the police handle and deliver to the court clerk. What is interesting about the cases is that this Rule has been in place for a number years and that there appears to be no remedy for continuing violations. Because the cases are criminal, violations don't matter unless prejudicial, i.e., some reason to think that the papers were altered or forged while in police possession. I understand that it would be a bit much to dismiss the criminal charges. I am alright with that. But, like prosecutorial misconduct, the Court saying something is a violation and then doing nothing about it makes it hard to take the Rule seriously. I would like to come up with some idea about enforcement -- at least for prosecutorial misconduct there is the (remote) possibility of Bar discipline or court sanctions. Remote because, as far as a I can tell, never done in this state. But not what I am writing about today. Today I want to talk a little about Hess v. Canberra Developers.
The first thing about Hess is that it continues the Supreme Court's new direction in enforcing the procedural requirements for appeals. The courts have long been taking a hard line on jurisdictional procedure -- late filing. That is easy because a late filed appeal is dead because there is no jurisdiction. More recently, within the last year really, it has started attending to the requirement that issues need to be adequately briefed before they are properly before the Court, meaning the evidence marshaled and so on. Used to be only the most egregious violations were noted, and the court usually went on to address the merits anyway. That approach seemed to me a bad idea as it encouraged bad briefing and gave no sanctions against violations. (When interviewed I said as much -- not that the interview went very far.) In Hess, the Court refused to consider most of the appellant's issues (6 out of 9) because the briefing was inadequate on all but three issues. A bit harsh, but I think the right course.