collateral consequences exception in Utah

2016A. Exceptions to Mootness ¶11 The recognized exceptions to mootness in Utah involve cases that affect public interest, are likely to recur, and are capable of evading review, see Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT 75, ¶ 32 , 289 P.3d 582 , and in the criminal realm, cases in which “ ‘collateral legal consequences 2 will be imposed on the basis of the challenged conviction,’ ” Duran, 635 P.2d at 45 (quoting Sibron v. New York, 392 U.S. 40, 57 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968)). ¶12 The parties disagree over whether the collateral consequences excepti

2013Thus, reinstating his probation at this point would have "no legal effect." See id. (citation and internal quotation marks omitted); see also State v. Peterson, 2012 UT App 363, ¶ 5 , 293 P.3d 1103 (mem.) (holding that where the defendant challenged only the lawfulness of his sentence and not the underlying conviction itself, the completion of his sentence and closure of his case rendered his appeal moot). 13 A moot appeal "must be dismissed ... unless it can be shown to fit within a recognized exception to the mootness principle." Duran v. Morris, 635 P.2d 43, 45-46 (Utah 1981) (discussing th

2016See, e.g., Towner v. Ridgway, 2012 UT App 35, ¶¶ 7-11, 272 P.3d 765 (applying the collateral consequences doctrine to dismiss as moot a challenge to an expired civil stalking injunction). 3 .

2016See, e.g., Towner v. Ridgway, 2012 UT App 35, ¶¶ 7-11, 272 P.3d 765 (applying the collateral consequences doctrine to dismiss as moot a challenge to an expired civil stalking injunction). 3 .

2024See, e.g., Utah Transit Auth., 2012 UT 75 , ¶¶ 28– 31 (stating that there are three elements to the public interest exception); N.F. v. G.F., 2013 UT App 281, ¶ 12 , 316 P.3d 944 (explaining the two elements of the collateral consequences exception).

2017Although our supreme court has expressed disfavor for the term "public interest exception,” we use the term "only to differentiate this exception to the mootness doctrine from the collateral consequences exception to the doctrine.” See N.F. v. G.F., 2013 UT App 281 , ¶ 8 n.2, 316 P.3d 944 (citing Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT 75, ¶ 33 , 289 P.3d 582 ).

2012See Spencer, 523 U.S. at 14 , 118 S.Ct. 978 ; Moore, 2009 UT App 128, ¶ 17 , 210 P.3d 967 ; cf. Putman, 900 A.2d at 1261-62 (noting that Connecticut recognizes a diverse array of collateral consequences, "includ[ing] harm to a defendant's reputation as a result of the judgment at issue," and that a "litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur ... by more than mere conjecture, but need not demonstrate that these consequences are more probable than not"). 19 Assuming without deciding that the collateral consequences doctrine ought

2012See Spencer, 523 U.S. at 14 , 118 S.Ct. 978 ; Moore, 2009 UT App 128, ¶ 17 , 210 P.3d 967 ; cf. Putman, 900 A.2d at 1261-62 (noting that Connecticut recognizes a diverse array of collateral consequences, "includ[ing] harm to a defendant's reputation as a result of the judgment at issue," and that a "litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur ... by more than mere conjecture, but need not demonstrate that these consequences are more probable than not"). 19 Assuming without deciding that the collateral consequences doctrine ought

2013Thus, reinstating his probation at this point would have "no legal effect." See id. (citation and internal quotation marks omitted); see also State v. Peterson, 2012 UT App 363, ¶ 5 , 293 P.3d 1103 (mem.) (holding that where the defendant challenged only the lawfulness of his sentence and not the underlying conviction itself, the completion of his sentence and closure of his case rendered his appeal moot). 13 A moot appeal "must be dismissed ... unless it can be shown to fit within a recognized exception to the mootness principle." Duran v. Morris, 635 P.2d 43, 45-46 (Utah 1981) (discussing th

2013Thus, reinstating his probation at this point would have "no legal effect." See id. (citation and internal quotation marks omitted); see also State v. Peterson, 2012 UT App 363, ¶ 5 , 293 P.3d 1103 (mem.) (holding that where the defendant challenged only the lawfulness of his sentence and not the underlying conviction itself, the completion of his sentence and closure of his case rendered his appeal moot). 13 A moot appeal "must be dismissed ... unless it can be shown to fit within a recognized exception to the mootness principle." Duran v. Morris, 635 P.2d 43, 45-46 (Utah 1981) (discussing th

2012See, eg., In re Giles, 657 P.2d at 286-87 (applying the collateral consequences exception "to patients of mental hospitals who face ... deprivations of liberty [similar to prisoners] and whose commitment and hospitalization must stand serutiny on the merits when challenged"); Duran v. Morris, *381 635 P.2d 43, 45 (Utah 1981) (listing possible collateral consequences in the criminal law context). 18 However, one commonality among the applications of the collateral consequences doctrine is the need for the consequences complained of to be more than merely speculative.

2012See, eg., In re Giles, 657 P.2d at 286-87 (applying the collateral consequences exception "to patients of mental hospitals who face ... deprivations of liberty [similar to prisoners] and whose commitment and hospitalization must stand serutiny on the merits when challenged"); Duran v. Morris, *381 635 P.2d 43, 45 (Utah 1981) (listing possible collateral consequences in the criminal law context). 18 However, one commonality among the applications of the collateral consequences doctrine is the need for the consequences complained of to be more than merely speculative.

2016See Barnett v. Adams, 2012 UT App 6, ¶ 9 , 273 P.3d 378 (declining to consider “potential legal impairments that generally impact a person” in like circumstances where no injury “actually suffered” or “even likely [to be] suffered” was demonstrated by appellant). ¶46 Thus, because Legg has not demonstrated the sort of collateral legal consequences related to this probation revocation that are necessary to invoke the collateral consequences exception to the mootness doctrine, he has not met the standard necessary to avoid dismissal.

2016See Barnett v. Adams, 2012 UT App 6, ¶ 9 , 273 P.3d 378 (declining to consider “potential legal impairments that generally impact a person” in like circumstances where no injury “actually suffered” or “even likely [to be] suffered” was demonstrated by appellant). ¶46 Thus, because Legg has not demonstrated the sort of collateral legal consequences related to this probation revocation that are necessary to invoke the collateral consequences exception to the mootness doctrine, he has not met the standard necessary to avoid dismissal.

2016See Hooker, 2013 UT App 91, ¶ 3 , 300 P.3d 1292 (explaining that this court will reach the merits of a moot appeal only if a recognized exception to the mootness doctrine, such as collateral legal consequences, applies).

2016See Hooker, 2013 UT App 91, ¶ 3 , 300 P.3d 1292 (explaining that this court will reach the merits of a moot appeal only if a recognized exception to the mootness doctrine, such as collateral legal consequences, applies).

2015See Duran, 685 P.2d at 45; see also United States v. O'Leary, No. 96-2248, 1997 WL *849 428597, at *1 n. 1, 120 F.3d 271 (10th Cir. July 30, 1997) (applying the collateral consequences exception to a probation-revocation challenge); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir.1970) (recognizing that probation revocation can "affix[ ] a permanent blemish to [al petitioner's record" that could be "take[n] into account" if the "petitioner ever has future difficulties with the law"); People v. Halterman, 45 Ill.App.3d 605 , 4 Ill.Dec. 271 , 359 N.E.2d 1223, 1225 (1977) (same).

2015See Duran, 685 P.2d at 45; see also United States v. O'Leary, No. 96-2248, 1997 WL *849 428597, at *1 n. 1, 120 F.3d 271 (10th Cir. July 30, 1997) (applying the collateral consequences exception to a probation-revocation challenge); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir.1970) (recognizing that probation revocation can "affix[ ] a permanent blemish to [al petitioner's record" that could be "take[n] into account" if the "petitioner ever has future difficulties with the law"); People v. Halterman, 45 Ill.App.3d 605 , 4 Ill.Dec. 271 , 359 N.E.2d 1223, 1225 (1977) (same).

2015See Duran, 685 P.2d at 45; see also United States v. O'Leary, No. 96-2248, 1997 WL *849 428597, at *1 n. 1, 120 F.3d 271 (10th Cir. July 30, 1997) (applying the collateral consequences exception to a probation-revocation challenge); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir.1970) (recognizing that probation revocation can "affix[ ] a permanent blemish to [al petitioner's record" that could be "take[n] into account" if the "petitioner ever has future difficulties with the law"); People v. Halterman, 45 Ill.App.3d 605 , 4 Ill.Dec. 271 , 359 N.E.2d 1223, 1225 (1977) (same).

2015See Duran, 685 P.2d at 45; see also United States v. O'Leary, No. 96-2248, 1997 WL *849 428597, at *1 n. 1, 120 F.3d 271 (10th Cir. July 30, 1997) (applying the collateral consequences exception to a probation-revocation challenge); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir.1970) (recognizing that probation revocation can "affix[ ] a permanent blemish to [al petitioner's record" that could be "take[n] into account" if the "petitioner ever has future difficulties with the law"); People v. Halterman, 45 Ill.App.3d 605 , 4 Ill.Dec. 271 , 359 N.E.2d 1223, 1225 (1977) (same).

2012See, e.g., Spencer v. Kemna, 523 U.S. 1, 14 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998) (holding that "a possibility rather than a certainty or even a probability" of suffering a collateral consequence is insufficient to overcome mootness); Fratis v. Ortiz, 190 Fed.Appx. 686, 688 (10th Cir.2006) (applying Spencer, 523 U.S. at 14 , 118 S.Ct. 978 , and holding that collateral consequences must be shown, not presumed); State v. Moore, 2009 UT App 128, ¶ 17 , 210 P.3d 967 (explaining that collateral consequences "will not [be] presume[d]" when a party has failed to show that the consequences complaine

2012See, e.g., Spencer v. Kemna, 523 U.S. 1, 14 , 118 S.Ct. 978 , 140 L.Ed.2d 43 (1998) (holding that "a possibility rather than a certainty or even a probability" of suffering a collateral consequence is insufficient to overcome mootness); Fratis v. Ortiz, 190 Fed.Appx. 686, 688 (10th Cir.2006) (applying Spencer, 523 U.S. at 14 , 118 S.Ct. 978 , and holding that collateral consequences must be shown, not presumed); State v. Moore, 2009 UT App 128, ¶ 17 , 210 P.3d 967 (explaining that collateral consequences "will not [be] presume[d]" when a party has failed to show that the consequences complaine

2012See In re C.D., 2010 UT 66 , ¶ 13, 245 P.3d 724 .

2012See In re C.D., 2010 UT 66 , ¶ 13, 245 P.3d 724 .

2012T7 "Where collateral legal consequences may result from an adverse decision, courts have generally held an issue not moot and rendered a decision on the merits." In re Giles, 657 P.2d 285, 286 (Utah 1982) (citing Carafas v. LaVallee, 391 U.S. 234 , 88 S.Ct. 1556 , 20 LEd.2d 554 (1968)); see also Putman v. Kennedy, 279 Conn. 162 , 900 A.2d 1256, 1261 (2006) ("[The court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur ." (omission in original) (internal quotation marks omitted)).

2012See Spencer, 523 U.S. at 14 , 118 S.Ct. 978 ; Moore, 2009 UT App 128, ¶ 17 , 210 P.3d 967 ; cf. Putman, 900 A.2d at 1261-62 (noting that Connecticut recognizes a diverse array of collateral consequences, "includ[ing] harm to a defendant's reputation as a result of the judgment at issue," and that a "litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur ... by more than mere conjecture, but need not demonstrate that these consequences are more probable than not"). 19 Assuming without deciding that the collateral consequences doctrine ought

2005As a foundation for the affirmative misrepresentation exception, the McFadden court looked to Downs-Morgan v. United States, 765 F.2d 1534, 1540-41 (11th Cir. 1985).