substantive due process analysis in Utah

2014Indeed, the majority itself unwittingly ac- knowledges this, stating that ―[t]he integrity of the family and the parents‘ inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo-American culture, presupposed by all our social, political, and legal institu- tions.‖ Supra ¶ 39. 82 Cite as: 2014 UT 51 NEHRING, A.C.J., dissenting fact the recognition of the parental rights of fathers has a strong basis in American and English history.

2014Or. Dep’t of Land Conservation & Dev., 243 P.3d 798, 802 (Or. Ct. App. 2010) (beginning a substantive due process analysis by 16 Cite as: 2014 UT 51 Opinion of the Court in part ¶35 That approach has not been broadly extended beyond the realm of economic rights.

2014In my view, the court should be reluctant to include dicta indicating its opinions about the history of the law.157 The truth is, it is well established under the law of both the United States and Utah that an unwed father‘s interest in asserting custody of his infant child or retain- ing custody of his older children is ―cognizable and substan- tial.‖158 ¶134 Moreover, though the plurality claims that there is no ―historical basis‖ for a deeply rooted fatherly parental right,159 in 32, ¶ 19, 94 P.3d 217 (―The courts are not a forum for hearing aca- demic contentions . . . .‖). 156 Stanley, 40

2014In my view, the court should be reluctant to include dicta indicating its opinions about the history of the law.157 The truth is, it is well established under the law of both the United States and Utah that an unwed father‘s interest in asserting custody of his infant child or retain- ing custody of his older children is ―cognizable and substan- tial.‖158 ¶134 Moreover, though the plurality claims that there is no ―historical basis‖ for a deeply rooted fatherly parental right,159 in 32, ¶ 19, 94 P.3d 217 (―The courts are not a forum for hearing aca- demic contentions . . . .‖). 156 Stanley, 40

2011A. The Automatic Waiver Statute Does Not Violate Substantive Due Process Under Either the Utah or Federal Constitution 110 "When undertaking a substantive due process analysis under both article I, section 7 of the Utah Constitution and the Fourteenth Amendment of the United States Constitution, this court applies a rational basis test unless the governmental action implicates a fundamental right or interest." State v. Candedo, 2010 UT 32, ¶ 16 , 232 P.3d 1008 .

2011A. The Automatic Waiver Statute Does Not Violate Substantive Due Process Under Either the Utah or Federal Constitution 110 "When undertaking a substantive due process analysis under both article I, section 7 of the Utah Constitution and the Fourteenth Amendment of the United States Constitution, this court applies a rational basis test unless the governmental action implicates a fundamental right or interest." State v. Candedo, 2010 UT 32, ¶ 16 , 232 P.3d 1008 .

2007Co. v. Sandy City, 958 P.2d 245, 251 (Utah Ct. App.1998) (noting that the only question involved in a facial challenge to a land use regulation is " whether the mere enactment of the [ordinance] constitutes [a substantive due process violation or] a taking'" (alterations in original) (quoting Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 493 , 107 S.Ct. 1232 , 94 L.Ed.2d 472 (1987))).

2007Co. v. Sandy City, 958 P.2d 245, 251 (Utah Ct. App.1998) (noting that the only question involved in a facial challenge to a land use regulation is " whether the mere enactment of the [ordinance] constitutes [a substantive due process violation or] a taking'" (alterations in original) (quoting Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 493 , 107 S.Ct. 1232 , 94 L.Ed.2d 472 (1987))).

2026But that is a different question from whether a government actor’s conduct shocks the conscience as required for a plaintiff to prevail on a substantive due process claim. 20240498-CA 32 2026 UT App 82 Mountain West Towing v. West Jordan City indifference” to a pretrial detainee’s “serious medical needs” shocked the conscience); Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246 , 249, 252 (2d Cir. 2001) (affirming denial of a motion to dismiss a substantive due process claim when the complaint alleged that the defendant gym teacher grabbed the plaintiff student by the throat, shouted “I’

2026As we explain, see infra note 22, our resolution of the City’s arguments renders moot all but two of the issues the plaintiffs raise, so we need not recite the applicable standards of review for the other issues. 20240498-CA 10 2026 UT App 82 Mountain West Towing v. West Jordan City shock the conscience as required to establish a substantive due process claim.

2026But that is a different question from whether a government actor’s conduct shocks the conscience as required for a plaintiff to prevail on a substantive due process claim. 20240498-CA 32 2026 UT App 82 Mountain West Towing v. West Jordan City indifference” to a pretrial detainee’s “serious medical needs” shocked the conscience); Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246 , 249, 252 (2d Cir. 2001) (affirming denial of a motion to dismiss a substantive due process claim when the complaint alleged that the defendant gym teacher grabbed the plaintiff student by the throat, shouted “I’

2026Smith v. Half Hollow Hills Central School Dist., 298 F.3d 168 , 173 (2d Cir. 2002) (per curiam) (“The protections of substantive due process are available only against egregious conduct which goes beyond merely offending some fastidious squeamishness or private sentimentalism and can fairly be viewed as so brutal and offensive to human dignity as to shock the conscience.” (cleaned up)). ¶63 The First Circuit has explained that a reviewing court should look at a “continuum of government conduct, the 20240498-CA 31 2026 UT App 82 Mountain West Towing v. West Jordan City bookends of which present

2024Fundamental rights are protected against government action regardless of the fairness of the procedures used by the government.” Nelson v. City of Orem, 2013 UT 53, ¶ 28 , 309 P.3d 237 (quotation simplified). ¶21 Mooring contends that in certain circumstances, the “Federal Due Process Clause imposes a limitation on the ability of a court to alter a sentence after a final sentence has been imposed.” To support his position, Mooring relies on a four-factor balancing test created by the District of Columbia Court of Appeals in Jordan v. United States, 235 A.3d 808 (D.C. 2020).

2024Fundamental rights are protected against government action regardless of the fairness of the procedures used by the government.” Nelson v. City of Orem, 2013 UT 53, ¶ 28 , 309 P.3d 237 (quotation simplified). ¶21 Mooring contends that in certain circumstances, the “Federal Due Process Clause imposes a limitation on the ability of a court to alter a sentence after a final sentence has been imposed.” To support his position, Mooring relies on a four-factor balancing test created by the District of Columbia Court of Appeals in Jordan v. United States, 235 A.3d 808 (D.C. 2020).

2024Fundamental rights are protected against government action regardless of the fairness of the procedures used by the government.” Nelson v. City of Orem, 2013 UT 53, ¶ 28 , 309 P.3d 237 (quotation simplified). ¶21 Mooring contends that in certain circumstances, the “Federal Due Process Clause imposes a limitation on the ability of a court to alter a sentence after a final sentence has been imposed.” To support his position, Mooring relies on a four-factor balancing test created by the District of Columbia Court of Appeals in Jordan v. United States, 235 A.3d 808 (D.C. 2020).

2024Resolution of this issue did not involve a substantive due process analysis. 20230253-CA 11 2024 UT App 49 State v. Mooring IV.

2023Invoking the final clause of the adopted definition, we concluded that an unconstitutional sentence is one “not authorized by the judgment of conviction,” and thus a substantive due process challenge to a sentence fit __________________________________________________________ 2 The version of rule 22(e) in effect at the time Yazzie was decided was “based on an antecedent in the federal rules—rule 35(a) of the Federal Rules of Criminal Procedure, which until 1987 authorized federal courts to correct illegal sentences.” State v. Prion, 2012 UT 15, ¶ 22 , 274 P.3d 919 (cleaned up). 6 Cite as: 202

2023Invoking the final clause of the adopted definition, we concluded that an unconstitutional sentence is one “not authorized by the judgment of conviction,” and thus a substantive due process challenge to a sentence fit __________________________________________________________ 2 The version of rule 22(e) in effect at the time Yazzie was decided was “based on an antecedent in the federal rules—rule 35(a) of the Federal Rules of Criminal Procedure, which until 1987 authorized federal courts to correct illegal sentences.” State v. Prion, 2012 UT 15, ¶ 22 , 274 P.3d 919 (cleaned up). 6 Cite as: 202

2023Invoking the final clause of the adopted definition, we concluded that an unconstitutional sentence is one “not authorized by the judgment of conviction,” and thus a substantive due process challenge to a sentence fit __________________________________________________________ 2 The version of rule 22(e) in effect at the time Yazzie was decided was “based on an antecedent in the federal rules—rule 35(a) of the Federal Rules of Criminal Procedure, which until 1987 authorized federal courts to correct illegal sentences.” State v. Prion, 2012 UT 15, ¶ 22 , 274 P.3d 919 (cleaned up). 6 Cite as: 202

2020And we had no trouble rejecting the father’s substantive due process right in light of the cited premises in our case law—the need for “substantial deference” to the state’s chosen procedural “prerequisites” to the establishment of a parental right, and the substantial basis for protecting “the state’s important interest in ‘immediate and secure adoptions for eligible newborns.’” B.Y., 2015 UT 67, ¶ 44 . ¶193 But the majority’s analysis assumes that a fundamental right once acquired is therefore insulated against forfeiture through procedural default.

2020The mere possession of a fundamental right does not forever (Continued) 60 Cite as: 2020 UT 51 Lee, A.C.J., dissenting and a court upheld such default against a substantive due process challenge.

2020This challenge is more properly categorized as a substantive due process challenge. 12 Cite as: 2020 UT 51 Opinion of the Court misunderstood section 110’s legal requirements. 45 But as In re Adoption of J.S. illustrates, when the failure to comply with a “simple and straightforward” procedural requirement is due to legal counsel’s mistake, the procedural requirement has not foreclosed meaningful access to the justice system. 46 Accordingly, Mother fails to show that the Adoption Act deprived her of her constitutional right to an opportunity to be heard. ¶30 Because Mother’s constitutional rig

2015It does so in light of the state's important interest in "immediate and secure adoptions: for eligible newborns." Wells, 681 P.2d at 203 . 1 45 As we noted in Wells, the Lehr court rejected a substantive due process challenge to a New York provision requiring notice of an adoption proceeding to an unwed father "only if he had filed a notice of intent to claim paternity with the putative father registry." Id. at 205 (citing Lehr, 463 U.S. at 264 , 103 S.Ct. 2985 ).

2015It does so in light of the state's important interest in "immediate and secure adoptions: for eligible newborns." Wells, 681 P.2d at 203 . 1 45 As we noted in Wells, the Lehr court rejected a substantive due process challenge to a New York provision requiring notice of an adoption proceeding to an unwed father "only if he had filed a notice of intent to claim paternity with the putative father registry." Id. at 205 (citing Lehr, 463 U.S. at 264 , 103 S.Ct. 2985 ).

2010See Doe v. Mich. Dep't of State Police, 490 F.3d 491, 502 (6th Cir.2007) ("Our review of the caselaw has failed to identify any case that applies the stigma-plus test to a substantive due process claim."); Gwinn, 354 F.3d at 1216 (stating government harm to one's reputation may give rise to a "pro-tectible liberty interest ... that requires procedural due process") (internal quotation marks omitted); Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396 , 402 n. 1 (3d Cir.2000) (stating that precedent in the circuit is against recognizing stigma plus as a substantive due process claim).