Salt Lake City v. Newman

2006 UT 69
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Salt Lake City, No. 20050505
Plaintiff and Respondent,
v.
F I L E D
Gary Allen Newman,
Defendant and Petitioner. November 7, 2006
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Third District, Salt Lake
The Honorable J. Dennis Frederick
No. 040902948
Attorneys: Aaron W. Flater, Salt Lake City, for plaintiff
Debra Meek Nelson, Teresa L. Welch, Samuel P.
Newton, Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
¶1 Petitioner Gary Newman asks this court to hold that a
municipal ordinance is invalid when it implicitly conflicts with
a state statute. Specifically, Newman challenges a Salt Lake
City battery ordinance because it lacks an injury element found
in the corresponding state statute. Without an injury element,
the ordinance arguably prohibits that which the state statute
implicitly permits: a battery that does not involve injury or
risk of injury. We conclude that such an implied conflict does
not render an ordinance unconstitutional. Because we discern no
actual conflict between the ordinance and the statute, we uphold
the ordinance.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Newman was charged with battery under Salt Lake City
Code section 11.08.020 (the “ordinance”). Newman moved to
dismiss the charge, arguing that the ordinance unconstitutionally
conflicts with the state assault statute because it lacks the

No. 20050505 2
injury element found in the statute. Utah Code Ann.
§ 76-5-102(1)(c) (2002). After the Salt Lake City Justice Court
denied his motion, Newman filed a rule 65B petition for
extraordinary relief in the Third District Court, which was
subsequently denied.
¶3 Newman then continued his challenge to the ordinance in
the court of appeals. In a decision that produced three separate
opinions, the court of appeals affirmed and upheld the ordinance
as constitutional. Salt Lake City v. Newman, 2005 UT App 191,
¶ 17, 113 P.3d 1007. Judge Jackson, the author of the plurality
decision, concluded that the ordinance does not conflict with the
state assault statute, although it “share[s] a common purpose
[with the statute] and [is] closely related in subject matter,”
because it “[does] not forbid that which [is] licensed or
permitted by the state.” Id. ¶¶ 15-16 (citation and quotations
omitted). While Judge Thorne had reservations about Judge
Jackson’s analysis of certain procedural issues, he concurred in
Judge Jackson’s conflicts analysis concerning the
constitutionality of the ordinance. Id. ¶ 28 (Thorne, J.,
concurring and dissenting). Judge Davis dissented from Judge
Jackson’s conflicts analysis, finding an unconstitutional
conflict between the ordinance and the statute. Id. ¶ 18. He
reasoned that the ordinance prohibits conduct permitted under the
assault statute because “a person could be convicted of battery
under the ordinance for bodily contact that under the statute
would be considered innocuous.” Id. ¶ 20 (Davis, J., concurring
in part, dissenting in part).
¶4 Newman sought further review in this court, and we
granted certiorari to determine whether the ordinance
unconstitutionally conflicts with Utah Code section 76-5-102(1).
We have jurisdiction pursuant to Utah Code section 78-2-2(5).
ANALYSIS
¶5 “On certiorari, we review the court of appeals’
decision for correctness and grant no deference to its
conclusions of law.” State v. Orr, 2005 UT 92, ¶ 7, 127 P.3d
1213 (citation omitted). Specifically, we focus our review on
the court of appeals’ conclusion that the ordinance does not
impermissibly conflict with Utah Code section 76-5-102. We
consider applicable precedent and hold that the implied conflict
on which Newman relies is an insufficient basis for striking down
the ordinance. We therefore affirm the result reached by the
court of appeals.
¶6 The ordinance defines battery as “any wilful and
unlawful use of force or violence upon the person of another.”

3 No. 20050505
Salt Lake City, Utah, City Code § 11.08.020. Newman argues that
the ordinance unconstitutionally conflicts with Utah Code section
76-5-102(1)(c), which criminalizes acts “committed with unlawful
force or violence, that cause[] bodily injury to another or
create[] a substantial risk of bodily injury to another.” Utah
Code Ann. § 76-5-102(1)(c) (2002) (emphasis added). Because the
ordinance lacks the injury element found in the statute, Newman
contends that it prohibits conduct implicitly permitted by the
statute--a battery that does not result in injury or involve a
substantial risk of injury. For example, Newman suggests that
spitting and yelling are two acts that are criminalized by the
ordinance but permitted by Utah Code section 76-5-102. We turn
to relevant precedent to evaluate the merit of Newman’s argument.
¶7 We previously have explained that “where a city
ordinance is in conflict with a state statute, the ordinance is
invalid at its inception.” Hansen v. Eyre, 2005 UT 29, ¶ 15, 116
P.3d 290 (citation omitted). In discerning conflict, “the test
is whether the ordinance permits or licenses that which the
statute forbids and prohibits, and vice versa.” Id. (citation
and quotations omitted). Newman argues that such a conflict
exists here. We disagree.
¶8 The type of conflict Newman identifies falls within the
doctrine of implied conflict. While we have not explicitly
rejected the doctrine of implied conflict, it is inconsistent
with our prior case law. Indeed, we have reviewed and upheld
ordinances that have implicitly conflicted with state statutes.
For example, in Salt Lake City v. Allred, 437 P.2d 434, 436 (Utah
1968), the defendant argued that a prostitution ordinance was “in
conflict with state laws and therefore invalid on the grounds
that the ordinance attempt[ed] to make crimes of acts which
[were] not crimes under the state laws.” We rejected this
argument, explaining that “[t]he mere fact that an act denounced
as a crime under the ordinance . . . is not denounced as a crime
under the statute would not necessarily render the act under the
ordinance inconsistent with the statute.” Id.; see also Redwood
Gym v. Salt Lake County Comm’n, 624 P.2d 1138, 1144 (Utah 1981)
(“[C]onflict is not created by the fact that an ordinance
denounces as unlawful an act upon which state law is silent.”).
In so holding, we have refused to equate the legislature’s
silence on a particular issue with an affirmative license.
Rather, we have affirmed the right of municipalities to
criminalize conduct not criminalized by the legislature, provided
that such regulation “is in harmony with the state laws.”
Allred, 437 P.2d at 436.
¶9 Our decision in Salt Lake City v. Kusse, 93 P.2d 671
(Utah 1938), provides additional guidance. In Kusse, the

No. 20050505 4
defendant challenged an ordinance that criminalized drunk driving
on city streets as unconstitutionally conflicting with a state
statute that prohibited drunk driving on state highways. Id. at
671-72. We upheld the ordinance, observing that it merely went
further “in its prohibition--but not counter to the prohibition
under the statute.” Id. at 673. Importantly, we noted that the
ordinance did not “forbid what the Legislature ha[d] expressly
licensed, authorized, or required,” suggesting a refusal to infer
legislative license. Id. (emphasis added). We repeated this
suggestion in Redwood Gym v. Salt Lake County Commission, where
we reasoned that “local governments may legislate by ordinance in
areas previously dealt with by state legislation, provided the
ordinance in no way conflicts with existing state law (i.e.,
permitting that expressly prohibited by statute, or forbidding
that expressly permitted by statute).” 624 P.2d at 1144
(emphasis added).
¶10 We now explicitly reject the doctrine of implied
conflict and hold that an ordinance is not unconstitutional
merely because it implicitly conflicts with a state statute. We
agree with the Oregon Supreme Court that
[w]e cannot simply “assume” that, by its
silence, the legislature intended to permit
conduct made punishable under an ordinance.
The state constitutional rights granted to
the citizens of a municipality are not so
easily discarded. When a local criminal
ordinance prohibits conduct, unless the
legislature has permitted that same conduct,
either expressly or under circumstances in
which the legislative intent to permit that
conduct is otherwise apparent, the ordinance
is not in conflict with state criminal law.
City of Portland v. Jackson, 850 P.2d 1093, 1096 (Or. 1993)
(third emphasis added). Therefore, in the absence of express
conflict, we will uphold a challenged ordinance unless there is
some indication of incompatibility with the state statutory
scheme. Implied conflict alone does not render an ordinance
unconstitutional; impermissible conflict instead arises when
“provisions are contradictory in the sense that they cannot
coexist.” Kusse, 93 P.2d at 673.
¶11 We can identify no such impermissible conflict here.
Salt Lake City enacted the ordinance pursuant to the
legislature’s express authorization that municipalities “may
. . . provide against and punish the offenses of assault and
battery.” Utah Code Ann. § 10-8-47 (2003). Newman has failed to

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show how the ordinance exceeds the scope of this authorization,
see, e.g., Salt Lake City v. Davison, 493 P.2d 301, 302 (Utah
1972), or is otherwise incompatible with the relevant statutory
framework. Additionally, Newman has failed to provide any
evidence of “legislative intent to permit” a battery that does
not result in injury or involve a substantial risk of injury.
Jackson, 850 P.2d at 1096. The mere fact that the state battery
statute does not criminalize such behavior does not suggest that
the legislature intended to authorize such behavior. Rather, the
legislature may have simply intended to leave the regulation of
such behavior in the hands of local governments, an intent
entirely consistent with Utah Code section 10-8-47, the statute
authorizing municipal regulation of assault and battery. As a
result, we cannot conclude that the city ordinance
unconstitutionally conflicts with Utah Code section 76-5-102.
CONCLUSION
¶12 We affirm the court of appeals’ conclusion that Salt
Lake City Code section 11.08.020 does not impermissibly conflict
with Utah Code section 76-5-102. We reject the doctrine of
implied conflict and instead hold that an ordinance is not
unconstitutional merely because it prohibits that which is
implicitly permitted by a state statute, or vice versa. Rather,
an ordinance triggers unconstitutional conflict only when it
contradicts a statute “in the sense that [the two] cannot
coexist.” Kusse, 93 P.2d at 673 (citation omitted). Affirmed.
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¶13 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.