MEMORANDUM IN OPPOSITION TO STATE=S

COMES NOW Respondent Robert A. Weitzel, by and through appointed appellate counsel of record, Scott L Wiggins, of and for Arnold & Wiggins, P.C., and respectfully submits this Memorandum in Opposition to the State=s Petition for Extraordinary Writ pursuant to Utah Rule of Civil Procedure 65B(d) and Utah Rule of Appellate Procedure 19. For the reasons specifically set forth below, the State=s Petition for extraordinary relief should be denied.

1. THE STATE=S PETITION FOR EXTRAORDINARY RELIEF IS UNTIMELY.

While there is no fixed time limitation for filing a petition for extraordinary relief, such a petition Ashould be filed within a reasonable time after the act complained of has been done or refused . . . .@ See Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 684 (Utah 1995). Accordingly, Athe equitable doctrine of laches is available to dismiss untimely writs.@ Id. (citing Angelos v. First Interstate Bank, 671 P.2d 772 (Utah 1983)).

In Angelos, the Utah Supreme Court stated that A>[l]aches is not mere delay, but delay that works a disadvantage to another. To constitute laches, two elements must be established: (1) The lack of diligence on the part of plaintiff; [and] (2) An injury to defendant owing to such lack of diligence.=@ Renn, 904 P.2d at 685 (quoting Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1260 (Utah 1975)).

The nearly three-month delay between Judge West=s Memorandum Decision denying the Motion to Recuse and the filing of the subject Petition demonstrates a serious lack of diligence on the part of the State. Moreover, that lack of diligence violated and continues to violate Mr. Weitzel=s constitutional right to a speedy trial. Consequently, the Petition should be dismissed as untimely based on an application of the equitable doctrine of laches.

2. THE STATE=S PETITION FOR EXTRAORDINARY RELIEF CONSTITUTES AN IMPERMISSIBLE APPEAL.

The State=s Petition for extraordinary relief is filed pursuant to Utah Rule of Civil Procedure 65B(d)(2)(A) and (C), which is in the nature of mandamus. Accordingly, the State seeks an order of this Court requiring Judge West to order the recusal of Judge Kay.

As explained by both this Court and the Utah Supreme Court, Aabuse of discretion@ for purposes of Rule 65B(d)(2)(A) writs Amust be more blatant than the garden variety >abuse of discretion= featured in routine appellate review.@ See State v. Stirba, 972 P.2d 918, 922 (Utah Ct. App. 1998) (citing Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 683 (Utah Ct. App. 1998) (holding courts may employ Rule 65B writ to correct a Agross and flagrant abuse of discretion@)). Consequently, under Rule 65B, only a gross abuse of discretion is appropriate for correction under Utah Rule of Civil Procedure 65B(d)(2)(A). See Indian Village Trading Post, Inc. v. Bench, 929 P.2d 367, 370 (Utah Ct. App. 1996). AMoreover, while courts may find an abuse of discretion and issue a Rule 65B(d)(2)(A) writ in the face of a particularly egregious and momentous legal error, the courts may not routinely use writ as a substitute for an appeal.@ Stirba, 972 P.2d at 923 (citing Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1019-22 (Utah 1995) and Merrihew v. Salt Lake County Planning and Zoning Comm=n, 659 P.2d 1065, 1067 (Utah 1983)) (internal citation omitted and emphasis added).

By statute, the Utah Legislature carefully limited the judgments and orders from which the State may appeal in criminal cases, none of which include orders denying motions to recuse or disqualify a judge. See Utah Code Ann. ' 77-18a-1(2) (1999). This the State concedes. See State=s Petition for Extraordinary Relief, p. 15. This proceeding under Rule 65B(d) is similar, if not identical, to a statutory appeal inasmuch as the State seeks the same review and relief as would a statutory appeal from Judge West=s denial of the motion to recuse. Denial of the State=s Petition is necessary to avoid transforming this proceeding into an impermissible appeal, which would undermine the Legislature=s intent concerning such a remedy.

The State argues that Judge West Aabused his discretion for purposes of rule 65B(d)(2)(A)@ by applying the wrong legal standard and by not considering all of the allegations of bias. See State=s Petition for Extraordinary Relief, p. 18. For the reasons detailed below, the State=s arguments are without merit.

Rule 29 of the Utah Rules of Criminal Procedure sets forth the procedures when judicial bias is alleged. According to Rule 29, the party asserting bias is required to submit an affidavit Astating facts sufficient to show bias or prejudice . . . .@ See Utah R. Crim. P. 29(c)(1)(A). In the course of deciding whether an affidavit is sufficient, Ajudges are presumed to be qualified.@ In re Affidavit of Bias, 947 P.2d 1152, 1153 (Utah 1997) (memorandum decision of Zimmerman, C.J., sitting alone); see also In re M.L., 965 P.2d 551, 556 (Utah Ct. App. 1998). The bias alleged in the affidavit must Ahave some basis in fact and be grounded on more than mere conjecture and speculation.@ Madsen v. Prudential Fed. Savs. & Loan, 767 P.2d 538, 544 n.5 (Utah 1988) (citation omitted). Moreover, Ano deduction of bias and prejudice may be made from adverse rulings by a judge.@ In re Affidavit of Bias, 947 P.2d at 1154 (quoting 46 Am. Jur.2d Judge ' 219 (1994)).

Under Utah case law, for a claim of bias to be properly supported, A>it [must] appear[ ] that, apart from [the judge=s] analysis of the issues of fact or law [in those prior proceedings], he had such a bias in favor of one party or prejudice against the other that he could not fairly and impartially determine the issues.=@ Poulsen v. Frear, 946 P.2d 738, 742 (Utah Ct. App. 1997) (quoting Orderville Irrig. Co. v. Glendale Irrig. Co., 17 Utah 2d 282, 288, 409 P.2d 616, 621 (1965)). Consequently, the affidavit must allege facts that indicate A[the] judge=s behavior toward a party during [those prior] proceedings [was] extreme@ and reflected a Adeep-seated antagonism@ toward the party requesting recusal. Id.; see also In re M.L., 965 P.2d at 556.

The facts alleged in the supporting affidavit as well as those set forth in the Petition simply do not demonstrate the extreme behavior or deep-seated antagonism toward the Petitioner or the alleged victims to require disqualification. This is especially true when the various comments and rulings set forth in the affidavit are viewed within the true context in which they were made, namely, an extremely lengthy and emotional jury trial that involved complex facts and evidence. Further, the allegations of bias in both the affidavit and Petition fail to demonstrate Aa particularly egregious and momentous legal error . . . .@ See Stirba, 972 P.2d at 923 (citing Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1019-22 (Utah 1995) and Merrihew v. Salt Lake County Planning and Zoning Comm=n, 659 P.2d 1065, 1067 (Utah 1983)).

4. THE UNTIMELINESS OF THE STATE=S MOTION AND SUPPORTING AFFIDAVIT UNDER RULE 29 OF THE UTAH RULES OF CRIMINAL PROCEDURE IS AN ALTERNATIVE GROUND TO DENY THE PETITION.

A party seeking disqualification of a judge under Rule 29(c)(1)(A) for alleged bias, must file a motion and supporting affidavit Astating facts sufficient to show bias or prejudice . . . .@ According to Rule 29(c)(1)(B):

The motion shall be filed after commencement of the action, but not later than 20 days after the last of the following: (i) assignment of the action or hearing to the judge; (ii) appearance of the party or the party=s attorney; or (iii) the date on which the moving party learns or with the exercise of reasonable diligence should have learned of the grounds upon which the motion is based. . . .

In support of the timeliness requirements of such a motion, the State merely stated in its Motion that A[t]he Defendant=s first appearance at his New Trial setting was March 29, 2001,@ and that A[t]ranscripts, which were necessary for references to be included in this Motion were first made available to the state on March 20, 2001.@ See State=s Motion and Supporting Affidavit to Recuse, p. 3. Based only on this, the State asserted timely filing of its Motion and affidavit. Id.

The majority, if not all, of the allegations of bias asserted by the State involve the trial proceedings that occurred over one year ago in July 2000. See State=s Petition for Extraordinary Relief, pp. 6-13. Further, the ruling on the Motion for a New Trial, which was adverse to the State, was signed on January 9, 2001, and entered that same day. See Memorandum Decision and Order, attached as Addendum F to the State=s Petition for Extraordinary Relief. The State did not file its Motion and affidavit for recusal until April 18, 2001. See Motion and Supporting Affidavit to Recuse, attached as Addendum A to the State=s Petition for Extraordinary Relief.

Mr. Weitzel=s appearance for his new trial on March 29, 2001, is inapplicable for purposes of determining timeliness of the Motion inasmuch as the appearance that is relevant for purposes of this Motion is Mr. Weitzel=s appearance prior to the allegations of bias. Further, the State, as the moving party, obviously learned or with the exercise of reasonable diligence should have learned of the grounds upon which the motion is based at the very least during or shortly after the trial in July 2000.

Based on the foregoing, the State=s Motion and affidavit were untimely filed. According to well-settled Utah case law, an appellate court may affirm a trial court=s ruling on any proper grounds, even though the trial court relied on some other ground. DeBry v. Noble, 889 P.2d 428, 444 (Utah 1994); O=Neal v. Division of Family Servs., 821 P.2d 1139, 1141 (Utah 1991); Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 895 (Utah 1988); Branch v. Western Petroleum, Inc., 657 P.2d 267, 276 (Utah 1982); Allphin Realty, Inc. v. Sine, 595 P.2d 165, 168 n.3 (Utah 1992). The untimeliness of the State=s Motion to recuse is such a ground for denying the State=s Petition for extraordinary relief.

In the instant proceedings, the State all but failed to provide an complete and accurate record of the proceedings and circumstances surrounding the allegations of bias. For example, as echoed by Judge West in the Memorandum Decision, the Arecord is replete with instances where Judge Kay ruled in favor of the plaintiff on many issues.@ See Memorandum Decision, attached at Addendum C to the State=s Petition for Extraordinary Relief. Few, if any, of these rulings were provided by the State. Further, the State failed to provide either the Court or opposing counsel with any transcript of the alleged telephone conversations between Mr. Weitzel and an alleged third party concerning rulings by the trial court. See State=s Petition for Extraordinary Relief, p. 13. Additionally, the State completely failed to provide any affidavit that contains personal knowledge of the alleged comment made by Judge Kay to a local city prosecutor concerning the State=s case. See id. at p. 14. At most, such a comment constitutes hearsay upon hearsay.

I, SCOTT L WIGGINS, hereby certify that I personally caused to be hand-delivered a true and correct copy of the foregoing MEMORANDUM IN OPPOSITION TO STATE=S PETITION FOR EXTRAORDINARY WRIT to the following on this 14th day of September, 2001:

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