 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Salt Lake City v. Newman5/5/2005
escribed as a potentially upsetting collateral consequence that could result if Newman is convicted. Newman faces the possibility of losing his possible military career. I do not believe that this constitutes such a compelling need as to warrant mandamus relief. While Newman may well encounter such a sanction, he must first be convicted, which is certainly not a foregone conclusion. Then, the military must institute proceedings, which may result in sanctions at the military's discretion. Moreover, Newman has the opportunity to challenge directly any conviction that may occur, rather than through a writ of mandate. In my opinion, if the relief available to Newman upon his conviction is sufficiently inadequate to warrant the acceptance of his writ, then we face a deluge of similar writs from defendants who have yet to be convicted. Each of these writs will complain of similar collateral consequences--possible job loss, denial or revocation of a professional license, damage to reputation--and each of them will have a trial de novo in the district court as its only appellate option if the defendant is convicted. I do not think that the majority intends such a result, nor do I believe that such a result is supported by case law; but that result seems destined to occur with today's opinion.
Furthermore, although Newman's writ seeks to prevent possible future collateral consequences, it does so by attacking the trial court's pretrial ruling concerning the constitutionality of a city ordinance. Making such a ruling, whether or not correct, lies squarely within the trial court's discretion, and ought not be subject to attack through the filing of a mandamus writ. See L.J. Meuller, 227 P. at 272.
As articulated by Judge Jackson, the statute is constitutional. Thus, Newman's petition does not present a claim that is "clear and free from doubt," nor is the relief he requests "so meritorious, that the court in the interest of justice should exercise its discretion by granting the writ." Id. at 273-74. Consequently, although the question is not properly before this court, I believe that the trial court erred in accepting the writ and addressing its merits. I also believe that the majority's position on the availability of mandamus relief is at odds with existing case law. Because we need not address the issue at all, the opinion should not address the propriety of Newman's writ.
Finally, I believe that Judge Jackson's analysis concerning the constitutionality of the Salt Lake City ordinance is sound. Accordingly, I concur in his conclusions regarding the ordinance. However, I dissent from the majority's decision to address the propriety of Newman's writ, and, assuming that the question was properly before us, from its conclusions that the writ is a proper vehicle to challenge the trial court's ruling.
William A. Thorne Jr., Judge
Page 1 2 3 4 5 6 Utah DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|