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City v. Scovel1/9/2003
MEMORANDUM DECISION
Not For Official Publication
Appellant Joseph Scovel appeals his conviction of Driving Under the Influence of Alcohol or Drugs, a class B misdemeanor, which resulted from a trial de novo in district court following a conviction in the Sandy City Justice Court. This case is before the court on a sua sponte motion for summary dismissal on the basis that this court lacks jurisdiction over an appeal following a trial de novo "unless the district court rules on the constitutionality of a statute or ordinance." Utah Code Ann. § 78-5-120(7) (Supp. 2002). Scovel did not file a response.
This appeal is one of several largely identical appeals filed by counsel for Scovel seeking to appeal the district court's ruling on the constitutionality of rule 4-608 of the Utah Rules of Judicial Administration. The right to appeal a decision of the district court following a trial de novo is limited by statute. "The decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance." Utah Code Ann. § 78-5-120(7) (Supp. 2002). In similarly situated appeals seeking review of the district court's denial of a constitutional challenge to rule 4-608(2)(c), this court held that when an appellant "challenges the constitutionality of a rule, rather than a statute or ordinance as specified under the statute, this court is without jurisdiction over the appeal." Murray City v. Kvenvold, 2002 UT App 263, (per curiam); Murray City v. Serre, 2002 UT App 264, (per curiam); State v. Beuchert, 2002 UT App 266, (per curiam); see also West Valley City v. Mann, 2002 UT App 383, (per curiam); Heber City v. Phillips, 2002 UT App 311, (per curiam); Farmington City v. Wahlstrom, 2002 UT App 309, (per curiam) (each addressing identical jurisdictional arguments to those raised in present case). The district court's ruling was limited to the constitutionality of former rule 4-608(2)(c). This court lacks jurisdiction over this appeal under section 78-5-120(7) because the district court did not rule on the constitutionality of a statute or ordinance.
"When a matter is outside the court's jurisdiction, it retains only the authority to dismiss the action." Varian-Eimac v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). A challenge to this court's ruling on jurisdiction must be made by timely filing a petition for writ of certiorari in the Utah Supreme Court. See Utah R. App. P. 49.
Accordingly, we grant the sua sponte motion and dismiss the appeal for lack of jurisdiction.
James Z. Davis, Judge
Pamela T. Greenwood, Judge
Gregory K. Orme, Judge
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