Utah Court Misses Chance to Be a Leader in Third Amendment Jurisprudence

The rare opportunity arose in American Fork City v. Smith, decided by the Utah Court of Appeals on June 23. From the opinion, with emphasis added:

David M. Smith appeals from his conviction of electronic communication harassment, a class B misdemeanor. Smith asserts various constitutional issues to challenge his conviction. We affirm.

Smith first asserts that Utah Code section 76‐9‐201 is unconstitutional because it is overbroad and vague, and therefore violates the First Amendment of the United States Constitution. Although Smith argued to the jury that his vile speech directed at his ex‐wife was protected under the First Amendment, he did not raise a challenge to the constitutionality of the statute before the trial court. Generally, “claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. To preserve an issue, the issue must be raised before the trial court in a timely fashion, must be specifically raised, and must be supported by the party through evidence or legal authority. See O’Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704. “[T]he preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that ‘exceptional circumstances’ exist or ‘plain error’ occurred.” Holgate, 2000 UT 74, ¶ 11. Smith has not asserted plain error or exceptional circumstances and did not seek a ruling on the constitutionality of the statute below. Accordingly, this claim is not properly before this court.

Likewise, Smith’s assertion that obtaining his phone records violated his rights under the Third Amendment is also not appropriately before this court. He asserts this issue for the first time on appeal; accordingly, we decline to address it. See id.

Rats. I hate it when procedural problems get in the way of a major constitutional ruling. Third Amendment scholarship certainly could use it. (In case you were wondering, the defendant proceeded pro se.)

Thanks to John Wesley Hall for the pointer.