Evans & Sutherland Computer Corp., v. Utah State Tax Comm.

960009Utah7 ott 1997

Testo completo

This opinion is subject to revision before final publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH

----oo0oo----

Evans & Sutherland Computer

Plaintiff and Appellant,

v.

Utah State Tax Commission and

County Board of Equalization of

Salt Lake County, State of Utah,

Defendants and Appellees.

No. 960009, Filed October 7, 1997

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Third District, Salt Lake Div. I

The Honorable Leslie A. Lewis



Attorneys: Ken P. Jones, Salt Lake City, for plaintiff

Jan Graham, Att'y Gen., Michelle Bush, Asst.

Att'y Gen., Salt Lake City, for Tax Commission

Mary Ellen Sloan, Douglas R. Short, Salt Lake

City, for Board of Equalization

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ZIMMERMAN, Chief Justice:

This is an appeal from the Third District Court's dismissal of Evans & Sutherland Computer

Corporation's ("Evans & Sutherland") petition seeking review by trial de novo of the decision of the Utah

State Tax Commission ("the Commission") concerning a real property tax dispute with the Salt Lake

County Board of Equalization ("the Board"). The district court ruled that the statute granting that court

jurisdiction to review the Commission's decision, section 59-1-601 of the Utah Code, did not apply

retroactively and, as a consequence, the court did not have jurisdiction to hear Evans & Sutherland's

case. We have jurisdiction over this matter under section 78-2-2(3)(j) of the Utah Code. We reverse the

district court's ruling that section 59-1-601 does not apply retroactively to this dispute, but we affirm the

dismissal of the action because we find that section 59-1-601 violates article XIII, section 11 and article

V, section 1 of the Utah Constitution.



We first set forth the facts of the dispute. In March of 1992, Evans & Sutherland filed an appeal from

the Board with the Commission for the tax year 1991.(1) Evans & Sutherland contested the value set by

the Board on six of its buildings for property tax purposes and on the parcels of land on which the

buildings are located for privilege tax purposes. On June 3, 1993, the Commission initiated a formal

hearing on the valuation issues. The Commission issued its "Findings of Fact, Conclusions of Law, and

Final Decision" on February 2, 1994. Evans & Sutherland timely filed a request for reconsideration of

the Commission's decision concerning the valuation of the six buildings for property tax purposes.(2) See

Utah Code Ann. § 63-46b-13(1)(a) (providing twenty days within which to file written request for

reconsideration of agency orders). Because the Commission did not act on the request within twenty days

after it was filed, the request for reconsideration was deemed denied on March 15, 1994, pursuant to

section 63-46b-13(3)(b) of the Utah Code. Instead of acting on the request for reconsideration within the

twenty-day period, the Commission sought to extend indefinitely its period of time for considering and

acting on the request in order to give the parties time to brief the issues raised in the request and to give

the Commission sufficient time to consider the request. Evans & Sutherland filed a protective petition for

review with this court on April 12, 1994.(3) See Utah Code Ann. § 63-46b-14(3)(a) (directing parties to

file "petition for judicial review of final agency action within 30 days after the date that the order

constituting the final agency action is issued or is considered to have been issued under Subsection 63-46b-13(3)(b)"). We stayed the petition for review until after the issuance of the Commission's order on

the request for reconsideration and the expiration of time for filing any appeals pursuant thereto. The

Commission did not issue an order on Evans & Sutherland's request until January 27, 1995, when the

Commission denied the request.



Thereafter, Evans & Sutherland petitioned for review with the Third District Court, seeking review by

trial de novo of the Commission's decision.(4) In 1993, the legislature had amended section 59-1-601 of

the Code to permit district court review by trial de novo of Commission decisions resulting from formal

hearings. Taxpayers Appeal from Administrative Rulings Act, ch. 248, sec. 2, § 59-1-601, 1993 Utah

Laws 1255, 1255. Prior to the passage of that statute, review was in this court only and the standard of

review, governed by section 59-1-610, was more restrictive. See Utah Code Ann. § 63-46b-16(1); id.

§ 78-2-2(3)(e)(ii); see also id. § 59-1-610. As amended, section 59-1-601 provides that "beginning

July 1, 1994, the district court shall have jurisdiction to review by trial de novo all decisions by the [tax]

commission resulting from formal adjudicative proceedings." Id. § 59-1-601(1) (1996). The Board

moved to dismiss Evans & Sutherland's petition on the grounds that section 59-1-601 does not apply

retroactively and is unconstitutional. The district court granted the Board's motion to dismiss, concluding

that the amended section 59-1-601 effected a substantive change in the law, making retroactive

application impermissible. The district court did not address the constitutional question. Evans &

Sutherland appealed the dismissal to this court.



We first consider whether section 59-1-601 applies retroactively to matters pending before the

Commission prior to the effective date of the statute. Whether a statute operates retroactively is a

question of law, which we review for correctness without deference to the district court. See Madsen v.

Borthick, 769 P.2d 245, 252-53 (Utah 1988). Two rules of statutory construction are relevant to our

assessment. One is the "long-standing rule of statutory construction that a legislative enactment which

alters the substantive law . . . will not be read to operate retrospectively unless the legislature has clearly

expressed that intention." Id. at 253 (citations omitted); see also Utah Code Ann. § 68-3-3. The intent to

have a statute operate retroactively may be indicated by explicit statements that the statute should be

applied retroactively, see, e.g., Utah Code Ann. § 19-6-302.5(3); id. § 19-6-402.5(3); id. § 77-18-17;

see also id. § 57-15-2, or by clear and unavoidable implication that the statute operates on events already

past. See 82 C.J.S. Statutes § 414 (1953). The second relevant rule of statutory construction, which is

often referred to as an exception to the first, permits retroactive application "'where a statute changes

only procedural law by providing a different mode or form of procedure for enforcing substantive

rights'" without enlarging or eliminating vested rights. Roark v. Crabtree, 893 P.2d 1058, 1062 (Utah

  1. (quoting Pilcher v. State, 663 P.2d 450, 455 (Utah 1983)) (additional citations omitted).



Traditionally, we have begun our analysis by applying the first rule of statutory construction: Only when

we conclude that retroactive application is not permitted under that rule do we consider whether the

second rule of construction permits retroactive operation. See, e.g., id. at 1061-62. However, the terms

of the first rule of statutory construction indicate that it applies only when a statute alters the substantive

law. Consequently, where, as here, a statute does not contain an express retroactivity provision, the

better approach is to first determine whether a statute is substantive or procedural and then apply the

applicable rule of statutory construction.



We begin with the language of section 59-1-601 to determine whether that section is substantive or

procedural. At the time of Evans & Sutherland's appeal to the district court, section 59-1-601 provided

in relevant part, "In addition to the jurisdiction granted in Section 63-46b-15, beginning July 1, 1994, the

district court shall have jurisdiction to review by trial de novo all decisions by the commission resulting

from formal adjudicative proceedings." Utah Code Ann. § 59-1-601(1) (1996).(5) Before the enactment

of this section, the district court did not have jurisdiction to review Commission decisions resulting from

formal adjudicative proceedings. The only avenue for challenging such decisions was to file a petition

for review with this court. See id. § 63-46b-16(1); id. § 78-2-2(3)(e)(ii). Section 59-1-601 grants parties

the choice of seeking review in the district court by trial de novo or in this court by the standard of

review set forth in section 59-1-610.(6) See id. § 59-1-602(1)(a).



We conclude that these changes are procedural in nature. Section 59-1-601 controls the mode and form

of procedure for enforcing the underlying substantive rights in the valuation dispute between the Board

and Evans & Sutherland. The substantive law pertinent to this dispute has not been changed; instead,

section 59-1-601 merely affects the judicial machinery available for determining the substantive rights.

See Salt Lake Child & Family Therapy Clinic v. Frederick, 890 P.2d 1017, 1020 n.3 (Utah 1995); see

also National Parks & Conservation Ass'n v. Board of State Lands, 869 P.2d 909, 912 (Utah 1993)

(permitting retroactive application of amendments to procedural statutes "if the amendments merely

regulate the procedures for presenting and resolving a case and do not adversely affect vested rights"

(emphasis added)); State v. Burgess, 870 P.2d 276, 280 n.6 (Utah Ct. App. 1994). It is true that a

different standard of review applies in cases before the district court, and we assume this was done with a

purpose, but that fact does not make section 59-1-601 substantive. See Board of Equalization v. State

Tax Comm'n ex rel. Benchmark, Inc., 864 P.2d 882, 884 (Utah 1993) (ruling that section 59-1-610,

which changed standard of review on appeals from Commission, applied retroactively).



In light of the foregoing, the procedural enactment at issue here may operate retroactively so long as it

does not enlarge or eliminate vested rights. The Board argues that section 59-1-601 should not be applied

retroactively for two reasons. First, such an application will deprive the Board of a final decision

rendered in its favor; second, permitting de novo review in the district court will expose the Board to

substantial additional costs of litigation because a de novo proceeding means starting over. The latter

argument is easily dismissed: parties do not possess a vested right to avoid additional costs of litigation

on review of an agency decision. However, the first of the Board's arguments requires greater

consideration to determine whether retroactive application does deprive the Board of a final decision

rendered in its favor. The Board bases its contention that it will lose a final judgment rendered in its

favor on the following: (1) The Commission issued its "Findings of Fact, Conclusion of Law, and Final

Decision" on February 2, 1994; (2) Evans & Sutherland timely filed a request for reconsideration, but the

Commission did not act on the request within the twenty-day "considered denied" period established by

section 63-46b-13(3)(b); and (3) the request for reconsideration was deemed denied by operation of

section 63-46b-13(3)(b) in March of 1994. Therefore, the Board argues, the Commission's February 2nd

order was deemed "final" at that point.



We think the Board takes an artificially narrow view of the proceedings.

On January 27, 1995, the Commission issued an order denying the petition for reconsideration. Evans &

Sutherland sought review of this January 27th decision in the district court. Under these facts, we

conclude that the Board did not have a vested right in the February 2nd decision, because the

January 27th decision supplanted that decision. Though the February 2nd decision became an appealable

final order on March 15th by virtue of section 63-46b-13(3)(b), which deems denied any request for

reconsideration not acted upon within twenty days of its filing date and thereby satisfies the requirements

of section 63-46b-14 for appealing an agency action, the Commission exercised its continuing jurisdiction

over the matter and eventually entered an order denying the request for reconsideration.(7)

In Harper Investments, Inc. v. Auditing Division, State Tax Commission, 868 P.2d 813 (Utah 1994), we

recognized the Commission's continuing jurisdiction to enter an order on a request for reconsideration

even after the request has been deemed denied under section 63-46b-13(3)(b). There, we interpreted

section 63-46b-14(3)(a)'s direction to parties to file their petition for review of an agency decision "within

30 days after the date that the order constituting the final agency action is issued or is considered to have

been issued under Subsection 63-46b-13(3)(b)." Id. at 815-16. We agreed with an earlier court of

appeals decision that "found that if an agency chooses to issue an order denying a petition for

reconsideration after the twenty-day presumptive denial period, the actual date of issuance would mark

the beginning of the thirty-day time period." Id. at 816 (citing 49th Street Galleria v. Tax Comm'n, 860

P.2d 996, 999 (Utah Ct. App. 1993)). In the instant case, the Commission issued an order denying

Evans & Sutherland's request for reconsideration after the "considered denied" period of section 63-46b-13(3)(b) had expired. Under Harper Investments, the order issued on January 27, 1995, not the order of

February 2, 1994, is the final decision of the Commission, and Evans & Sutherland properly sought

review of that final decision.(8) Therefore, the Board does not lose a vested right in a final decision of the

Commission by virtue of section 59-1-601's retroactive application.



The 1997 amendment to section 59-1-601 does not change this result. The original version of section 59-1-601(1) was silent as to the scope of its retroactivity: it merely provided that "beginning July 1, 1994,

the district court shall have jurisdiction to review by trial de novo all decisions by the commission

resulting from formal adjudicative proceedings." Utah Code Ann. § 59-1-601(1) (1996). This language

does not address whether the legislature intended the statute to apply to all Commission decisions,

regardless of whether the facts constituting the claim arose prior to the effective date of the statute,

whether the claim was pending before the Commission prior to the effective date, or whether the

Commission issued its decision before either the effective date or July 1, 1994. The legislature

eliminated this ambiguity with the 1997 amendment to section 59-1-601. That section now provides in

relevant part that "beginning July 1, 1994, the district court shall have jurisdiction to review by trial de

novo all decisions issued by the commission after that date resulting from formal adjudicative

proceedings." Centrally Assessed Taxpayers Amendments, ch. 309, sec. 2, § 59-1-601(1), 1997 Utah

Legislative Report 212, 213. This amendment clearly delineates the district court's jurisdiction,

permitting review of all Commission decisions resulting from formal adjudicative proceedings and issued

after July 1, 1994, irrespective of whether the facts constituting the claim arose prior to the effective date

or whether the matter was pending before the Commission prior to the effective date.



Under a long-standing exception to the general rule against applying statutes retroactively, statutory

amendments that merely clarify an ambiguity in an original statute will be given retroactive effect.

Okland Constr. Co. v. Industrial Comm'n, 520 P.2d 208, 210-11 (Utah 1974); cf. Visitor Info. Ctr.

Auth. v. Customer Serv. Div., State Tax Comm'n, 930 P.2d 1196, 1198 (Utah 1997) (noting that

amendment will be presumed to change rather than to clarify existing rights where language of original

statute is plain). This exception applies with particular force when, as here, the clarifying amendment is

to a procedural statute. Foil v. Ballinger, 601 P.2d 144, 151 (Utah 1979). In Foil, we observed that

such amendments apply to accrued, pending, and future actions. We further noted that "an action is

pending 'from the time of its commencement until its final determination upon appeal.'" Id. (quoting

Boucofski v. Jacobsen, 104 P. 117, 120 (Utah 1909)). Consistent with our reasoning in Foil, we hold

that the 1997 amendment to section 59-1-601(1) applies to this action.



The amended version of section 59-1-601(1) grants jurisdiction to the district court to review all

Commission decisions issued after July 1, 1994. As we explained above, Evans & Sutherland sought

district court review of the Commission's decision issued on January 27, 1995, not the February 2, 1994,

decision. Consequently, the district court has jurisdiction under the 1997 amended version of section

59-1-601(1) to review the dispute.

We must next address the Board's arguments challenging the constitutionality of section 59-1-601. The

Board argues that this section effectively removes the Commission's constitutionally bestowed power to

adjust and equalize the valuation and assessment of property and vests that power with the district courts.

The 1997 amended version of section 59-1-601 provides:

(1) In addition to the jurisdiction granted in Section 63-46b-15, beginning July 1, 1994, the district court

shall have jurisdiction to review by trial de novo all decisions issued by the commission after that date

resulting from formal adjudicative proceedings.

(2) As used in this section, "trial de novo" means an original, independent proceeding, and does not mean

a trial de novo on the record.

(3) (a) In any appeal to the district court pursuant to this section taken after January 1, 1997, the

commission shall certify a record of its proceedings to the district court.

(b) This Subsection (3) supercedes [sic] Section 63-46b-16 pertaining to judicial review of formal

adjudicative proceedings.

Centrally Assessed Taxpayers Amendments, ch. 309, sec. 2, § 59-1-601, 1997 Utah Legislative Report

212, 213 (deleted statutory language omitted).(9) Under this statute, the district court is permitted to

conduct a trial de novo on matters decided by the Commission resulting from formal adjudicative

proceedings. Although denominated "review by trial de novo," this statute does not actually provide for

review of the Commission decision. Rather, it directs the district court to decide the matter afresh.

Indeed, the 1997 version of section 59-1-601 eliminated the only limitations on the district court in the

1993 version: the witnesses it may hear and the direction to review and consider the Commission's

record.(10) The Board contends that this section's operation violates article XIII, section 11 of the Utah

Constitution, which establishes the Commission and gives it its power. Article XIII, section 11 states in

relevant part:

There shall be a State Tax Commission consisting of four members, not more than two of whom shall

belong to the same political party. The members of the Commission shall be appointed by the Governor,

by and with the consent of the Senate, for such terms of office as may be provided by law. The State

Tax Commission shall administer and supervise the tax laws of the State. It shall assess mines and public

utilities and adjust and equalize the valuation and assessment of property among the several counties. It

shall have such other powers of original assessment as the Legislature may provide. Under such

regulations in such cases and within such limitations as the Legislature may prescribe, it shall review

proposed bond issues, revise the tax levies of local governmental units, and equalize the assessment and

valuation of property within the counties. The duties imposed upon the State Board of Equalization by

the Constitution and Laws of this State shall be performed by the State Tax Commission.

Utah Const. art. XIII, § 11.

Evans & Sutherland relies on two constitutional provisions to support its argument that the legislature

may vest jurisdiction in the district courts to conduct an original, independent proceeding over issues

previously decided by the Commission in formal hearings. First, it argues that article XIII, section 11

provides that "under such regulations in such cases and within such limitations as the Legislature may

prescribe . . . [the Commission] shall . . . equalize the assessment and valuation of property within the

counties" (emphasis added). Section 59-1-601 contains only legislative "regulations" and "limitations."

Second, Evans & Sutherland argues that article XIII, section 3(1), which provides that "[t]he Legislature

shall prescribe by law such provisions as shall secure a just valuation for taxation of . . . property," also

gives the legislature authority to establish the review procedures it deems necessary to secure "just"

valuations. In substance, Evans & Sutherland asserts that these two provisions grant the legislature the

authority to give the district courts the power to perform the duties imposed upon the Commission by

article XIII, section 11 of the Utah Constitution.

We begin our analysis with article XIII, section 11. Our prior cases indicate that this constitutional

provision is more than a grant of power to the Commission. It also limits the power of the legislature to

confer the Commission's powers on other governmental entities. See Kennecott Corp. v. Salt Lake

County, 702 P.2d 451, 457 (Utah 1985); State ex rel. Pub. Serv. Comm'n v. Southern Pac. Co., 79 P.2d

25, 38 (Utah 1938); cf. State ex rel. Salt Lake City v. Eldredge, 76 P. 337, 341 (Utah 1904)

(invalidating legislation conferring power on state board of equalization to assess property situated wholly

within single county because such legislation infringed on article XIII, section 11 authority of county

boards of equalization to "adjust and equalize the valuation of the real and personal property within their

respective counties").

In Southern Pacific, we considered a statutory scheme that removed the power to assess and value public

utilities from the Commission and vested it in the Public Service Commission. 79 P.2d at 38. Assessing

this scheme under article XIII, section 11, we stated:

Constitutional provisions must be considered as limitations on legislative power where there is language

of limitation or exception. . . . The provisions of [article XIII,] section 11 specifically vest the power of

assessing utilities in the State Tax Commission. Therefore, that specific provision must be considered as

a limitation on the power of the legislature to place the assessing power in any other officer or

commission.



Id. Accordingly, we invalidated the statutory scheme as impermissibly transferring the Commission's

power to the Public Service Commission. Id.

Similarly, in Kennecott, we found article XIII, section 11 to restrict the legislature's authority to place

the Commission's powers in other governmental entities. 702 P.2d at 457. Kennecott presented a

situation analogous to the current one. The reviewed legislation conferred jurisdiction on the district

court to "'affirm, reverse, modify or remand any order of the state tax commission, and shall grant other

relief, invoke such other remedies, and issue such orders . . . as shall be appropriate.'" Id. (quoting

Utah Code Ann. § 59-24-4 (Supp. 1983)). At issue was whether section 59-24-4 permitted the district

court to adjust mining assessments. Relying on our interpretation of article XIII, section 11 in Southern

Pacific, we stated that the legislature may not "confer the power of assessing mines, which includes

fixing valuation of mining property, on the . . . district courts." Id. We concluded that if a district court

finds that the Commission erred in making a mining assessment, section 59-24-4 permits the district court

only to "reverse and remand the matter to the Commission for a proper determination pursuant to correct

legal standards." Id.

The broad grant of power in section 59-1-601 to the district courts runs counter to the limiting aspect of

article XIII, section 11 identified by our prior cases. Section 59-1-601 supplants the article XIII, section

11 duty of the Commission to "adjust and equalize the valuation and assessment of property" by vesting

the district courts with jurisdiction to review by trial de novo Commission decisions on such matters. As

noted above, section 59-1-601 defines "trial de novo" as "an original, independent proceeding"; as a

result, the district court is empowered to fix valuation of property rather than merely reviewing,

reversing, and remanding to the Commission for a proper determination. This empowerment of the

district court flies in the face of our decision in Kennecott. Section 59-1-601's grant of jurisdiction to the

district court goes well beyond the legislature's power to prescribe limitations on the Commission's

ability to "adjust and equalize the valuation and assessment of property among the several counties."

Utah Const. art. XIII, § 11. Section 59-1-601 does not operate only to limit the Commission's discretion

in conducting its article XIII, section 11 duties, it effectively eliminates the Commission's role whenever

one of the parties chooses to seek review under that section. The Commission's prior decision becomes a

nullity, and the district court conducts an original, independent proceeding.

Similarly, section 59-1-601 is beyond the legislature's authority to "prescribe by law such provisions as

shall secure a just valuation for taxation of [tangible] property." Id. art. XIII, § 3. Neither article XIII,

section 3 nor article XIII, section 11 permits the legislature to remove the Commission's power to "adjust

and equalize the valuation and assessment of property among the several counties" and to place that

power in the district courts. See id. art. XIII, § 11. Yet section 59-1-601 purports to do exactly that.

Furthermore, section 59-1-601 is inconsistent with the underlying purpose of article XIII, section 11.

When the Utah Constitution was amended in 1930 to create the Commission, one of the reasons for the

amendment was that "[c]entralized administration should be provided, with adequate authority to

supervise the entire tax system." Report of Tax Revision Commission of the State of Utah at 7 (1929).

Section 59-1-601 destroys this uniformity by vesting the administration of the taxation system in the eight

separate judicial districts and in the various individual judges of those districts. See Utah Code Ann.

§ 59-1-602(1)(b). Accordingly, we hold that both the 1993 and 1997 versions of section 59-1-601 violate

article XIII, section 11 and are unconstitutional.



Finally, we note that the 1993 and 1997 versions of section 59-1-601 are unconstitutional under article V,

section 1 of the Utah Constitution. That provision bars the judicial branch from exercising any of the

functions reserved to another branch of government. The power given the Commission, part of the

executive branch, by article XIII, section 11 falls within that prohibition.

The present enactment evidences an obvious desire on the part of the legislature to remove certain core

functions from the Commission and place them in what must be seen as a more sympathetic forum--the

courts. Whatever the merits of substituting generalist judges for the expertise of the Commission, if any

such wholesale change in the allocation of responsibility for administering this state's tax system is to be

made, it must be made by a constitutional amendment passed by the people, not by an act of the

legislature. The people established the present regime in 1930 when article XIII, section 11 was passed.

They are the only ones who can dismantle it.

Finally, we consider sua sponte what avenues remain for Evans & Sutherland to seek review of the

Commission's decision regarding the valuation of Evans & Sutherland's buildings. We dismiss Evans &

Sutherland's petition for review to this court, No. 940185, from the Commission's February 2, 1994,

order as moot because the January 27, 1995, order is the final action of the Commission. Evans &

Sutherland did timely seek review of the January 27th order but sought review under section 59-1-601,

which today we strike down as unconstitutional, instead of section 63-46b-16. To avoid the inequitable

situation of leaving Evans & Sutherland without an avenue for obtaining review of the January 27, 1995,

order, we grant Evans & Sutherland thirty days from the issuance of this opinion in which to petition for

review from that order under the statutory procedures now in place for seeking review of a final agency

action resulting from formal adjudicative proceedings. See id. § 78-2-2(2) (granting this court "authority

to issue all writs and process . . . in aid of [its] jurisdiction").

In conclusion, we hold that the district court erred by dismissing Evans & Sutherland's petition for

review on the basis that section 59-1-601 did not apply retroactively. We uphold the dismissal, however,

because section 59-1-601 is unconstitutional under article XIII, section 11 and article V, section 1. Evans

& Sutherland's prior petition for review to this court is dismissed as moot, but we grant Evans &

Sutherland thirty days from the issuance of this opinion to seek review of the Commission's January 27,

1995, order.

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Justice Russon concurs in Chief Justice Zimmerman's opinion.

Justice Howe concurs in the result.

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STEWART, Associate Chief Justice, concurring:

I concur in the majority opinion except for the unnecessary and doubtful ruling that "the 1993 and 1997

versions of section 59-1-601 are unconstitutional under article V, section 1 of the Utah Constitution."

The majority states: "That provision bars the judicial branch from exercising any of the functions

reserved to another branch of government. The power given the Commission, part of the executive

branch, by article XIII, section 11 falls within that prohibition."

I do not believe it appropriate for this Court on this occasion to decide that the Tax Commission is part of

the executive branch; indeed, I think the conclusion more likely incorrect.

---

Justice Durham concurs in Associate Chief Justice Stewart's concurring opinion.

IN THE SUPREME COURT OF THE STATE OF UTAH

---oo0oo---

Union Pacific Resources Company,

Plaintiff and Appellant,

v. No. 970022

Utah State Tax Commission, 950905784AP

State of Utah,

Defendant and Appellee.

__________________________________

American Bush,

Petitioner and Appellee,

v. No. 960228

Auditing Division of the 950906415

Utah State Tax Commission,

Respondent and Appellant.

----oo0oo----

ORDER

We hereby order the consolidation and summary disposition of the following two appeals currently before

this court:

Union Pacific Resources Co. v. Utah State Tax Comm'n, Case No. 970022

American Bush, Inc. v. Utah State Tax Comm'n, Case No. 960228

This order is warranted as a result of this court's decision in Evans & Sutherland Computer Corp. v. Utah

State Tax Commission, issued today. That decision holds that section 59-1-601 of the Utah Code, which

purported to grant the district court jurisdiction to review by trial de novo final decisions of the Utah State

Tax Commission resulting from formal hearings, violates article XIII, section 11 and article V, section 1 of

the Utah Constitution. Thus, the district court proceedings from which the parties appeal in the

aforementioned cases are invalid. However, to avoid the inequitable situation of leaving the parties without

an avenue for review of the Tax Commission's decision, the affected parties are granted thirty days from

the issuance of this order in which to petition this court for review under the statutory proceedings that

survive after the Evans & Sutherland decision.

FOR THE COURT:

Dated: October 7, 1997 ______________________

Michael D. Zimmerman

Chief Justice

IN THE SUPREME COURT OF THE STATE OF UTAH

----oo0oo----

Hercules Incorporated,

Petitioner,

v. No. 960449

Auditing Division of the 90-1521

Utah State Tax Commission,

Respondent.

______________________________________

Amoco Rocmount Company,

Petitioner and Cross-

Respondent on Review,

v. Nos. 960450

The Property Tax Division & 960456

of the Utah State Tax Commission 93-0958

and the Utah State Tax Commission,

Respondent on Review,

and,

Summit County,

Intervenor, Respondent,

and Cross-Petitioner on Review.

_______________________________________

The Southland Corporation,

Petitioner,

v. No. 960457

The Auditing Division 93-0004

of the Utah State Tax

Commission and the Utah

State Tax Commission,

Respondent.

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ORDER

This court's decision in Evans & Sutherland Computer Corp. v. Utah State Tax Commission, issued today,

affects the following three appeals currently pending before this court:

Summit County v. Utah State Tax Comm'n, Consolidated Case No. 960450

Hercules, Inc. v. Utah State Tax Comm'n, Case No. 960449

The Southland Corp. v. Utah State Tax Comm'n, Case No. 960457

Each of these are appeals of Tax Commission decisions in which this court has issued stays pending

resolution of Evans & Sutherland. Those stays are hereby lifted and the parties are instructed to proceed to

process their appeals in the ordinary course.

FOR THE COURT:

Dated: October 7, 1997 ____________________________

Michael D. Zimmerman

Chief Justice

1. Evans & Sutherland also appealed for the tax year 1992. This appeal was consolidated

with the 1991 appeal.

2. The Commission's decision as to the valuation of the parcels of land was eventually

appealed by the Board to this court. See County Board of Equalization v. Utah State Tax

Commission, 927 P.2d 176 (Utah 1996), for the resolution of that matter. Our decision in

that case does not affect the merits of this appeal.

3. Section 63-46b-14(3)(a) provides two time periods for seeking judicial review of final

agency actions. The first is to file "within 30 days after the date that the order

constituting the final agency action is issued," and the second is to file "within 30 days

after the date that the order constituting the final agency action . . . is considered to have

been issued under Subsection 63-46b-13(3)(b)." Utah Code Ann. § 63-46b-14(3)(a); see

also Harper Invs., Inc. v. Auditing Div., State Tax Comm'n, 868 P.2d 813, 815-16 (Utah

1994). In this case, Evans & Sutherland elected to file its petition within the latter period

to protect its right to seek review in the event that the Commission never triggered the

first filing period by issuing an order on the request for reconsideration.

4. We stayed Evans & Sutherland's petition for review with this court to allow the district

court to proceed with the issues now on appeal in this proceeding.

5. The legislature amended section 59-1-601 during the 1997 legislative session.

Centrally Assessed Taxpayers Amendments, ch. 309, sec. 2, § 59-1-601, 1997 Utah

Legislative Report 212, 213. We address the impact of this amendment below.

6. Section 59-1-610(1) directs appellate courts to

(a) grant the commission deference concerning its written findings of fact, applying a

substantial evidence standard on review; and

(b) grant the commission no deference concerning its conclusions of law, applying a

correction of error standard, unless there is an explicit grant of discretion contained in a

statute at issue before the appellate court.

7. The Commission partially granted the request for reconsideration by modifying the

February 2, 1994, decision, "clarif[ying] that its determination of value was the full fair

market value of the property prior to the intangible value adjustments as provided for by

§ 59-2-304."

8. We note that the legislature has created significant problems by permitting the

Commission to enter an order on a request for reconsideration even after the request has

been deemed denied pursuant to section 63-46b-13(3)(b) and the agency action is

appealable under section 63-46b-14. As Justice Howe noted in his dissent in Harper

Investments, where a "party has requested reconsideration by the administrative agency

but no action has been taken on the request by the end of twenty days, an appeal must

then be filed." If an appeal is not filed, a party is exposed to the risk that the agency will

never act on the request and the time for filing an appeal will expire. 868 P.2d at 817

(Howe, J., dissenting). As Justice Howe further observed, however, "If . . . the agency

later . . . acts on the request and denies it, the appeal which has been taken turns out to be

premature and must be dismissed. The party must then file a second appeal, supposedly

pay another filing fee, and continue pursuit of the appeal." Id. (Howe, J., dissenting).

Permitting the Commission sufficient time to reconsider its decisions makes sense in

terms of judicial economy: the Commission can apply its expertise and correct its errors,

avoiding the need for an appeal to the courts where generalist judges would review the

controversy. Unfortunately, the current statutory scheme does not limit the

Commission's ability to enter orders on requests for reconsideration, yet deems such

requests denied after only twenty days. This creates uncertainty as to when a

Commission decision is truly final.

9. For the purpose of our constitutional analysis, the 1993 and 1997 versions of section

59-1-601 are indistinguishable. The 1993 version of section 59-1-601 provided:

(1) In addition to the jurisdiction granted in Section 63-46b-15, beginning July 1, 1994,

the district court shall have jurisdiction to review by trial de novo all decisions by the

commission resulting from formal adjudicative proceedings.

(2) As used in this section, "trial de novo" means an original, independent proceeding,

and does not mean a trial de novo on the record.

(3) In any appeal taken after July 1, 1994, from a formal hearing to the district court

pursuant to this section, the commission shall certify a record of its proceedings to the

district court which record shall be reviewed and considered by the district court. A

district court may not, unless the parties otherwise agree in writing, hear witnesses that

were not called to testify or consider exhibits that were not presented to the commission

at the formal hearing. If the parties do not agree, and a district court determines that

additional witnesses should be heard or additional exhibits considered in the interest of

justice, the district court shall remand the case to the commission for that purpose. This

subsection supercedes [sic] Section 63-46b-16 pertaining to judicial review of formal

adjudicative proceedings.

Utah Code Ann. § 59-1-601 (1996). Both versions permit the district court to conduct an

original, independent proceeding reviewing the same Commission decisions.

Prior to the 1993 amendment to section 59-1-601, district courts had jurisdiction to

review only final agency actions resulting from informal adjudicative proceedings. See

id. § 63-46b-15 (Supp. 1996).

10. Even the limitations on the district court in the 1993 version of section 59-1-601 were

more apparent than real. The district court could avoid the witness limitation by remand

with discretion to hear the new witnesses, and the direction to review and consider the

Commission's record was inconsequential because the district court did not have to give

any deference to the findings and conclusions in the record.

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