Utah Bar Journal

For example, in Maxfield v. Denver & Rio Grande Western R.R. Co.,3 a case involving federal law, Justice Henriod took the position that the majority was simply guessing at how the United States Supreme Court might rule if eventually faced with the question presented in that case. He accused the majority of merely picking and choosing from the opinions of six different U.S. Supreme Court justices in several different cases to come up with enough of them who "supported" the majority's opinion on the issue at hand. Justice Henriod opined: "I dissent, suggesting that the main opinion has given us a new and novel principle, that of anticipatory stare decisis."4 He then cautioned, "[t]he reasoning of the majority opinion wholly fails to take into account the fact that time often stills the voices of Justices of the Supreme Court."5

Though time would find it difficult to still Justice Henriod's voice, to ensure it does not remain buried within the pages of the Utah Reports, the following are excerpts from a few of the opinions in his substantial body of work. While each is unique, they all have one thing common - they reflect the writing of a jurist untethered by any strings of doubt, supremely confident in his analysis of law and fact and, ultimately, the correctness of his conclusions.

Driving Under the Influence
In State v. Twitchell,6 a defendant appealed his conviction for automobile homicide asserting that the statute under which he was convicted was unconstitutional because it unlawfully discriminated between those who were driving under the influence and "happened" to kill someone - which he had done - and those who did so but were not under the influence by making the former a felony. The majority affirmed his conviction. Coming to the defense of the seemingly indefensible, Justice Henriod dissented, offering the following comments on the statute in question:

The injustice of the statute could be illustrated by the fact that under its terms a person running a red light at 90 m.p.h., who had not had a drink, but who kills another, faces but a misdemeanor and a year in jail, while one who may not have thought of voluntary intoxication, at 10 m.p.h. may kill some one after leaving his doctor's office and after having had administered to him a drug for some ailment or other which actually but unwittingly made it unsafe for him to drive, would face a felony and a maximum of 10 years, - the statute not requiring any intentional or voluntary self-administration of drink or drug.

* * *

In my opinion, the statute obviously strikes at but one type of misdemeanant. A drunk or drugged driver becomes a felon while all his fellow misdemeanants, - the speeders, the reckless ones, the willful and malicious ones, the hot-rodders, the daredevils, the wrong side of the roaders, the drivers with revoked licenses, the drivers who cannot obtain licenses because nature itself made them "incapable of safely driving a vehicle," and many other types of "classes" showing incapacity to drive safely need fear no more than a misdemeanor and a year in jail, while their brethren with the baited breath get the book. 7

Saint or Tyrant
Justice Henriod commented on another statute upheld as constitutional by the majority in Kent Club v. Toronto.8 The appellants in Kent Club argued, inter alia, that an amendment to a non-profit corporation statute impermissibly delegated a judicial function to the secretary of state by authorizing the secretary to revoke the charters of social clubs. Justice Henriod dissented:

In my opinion the amendment to the statute places a club in the hands of one man that could destroy a legitimate corporation and assassinate the character of reputable officers, if wielded carelessly by one who, for one reason or another, chose to effect such destruction and assassination.

* * *

Our rights in property and in freedom of enterprise and association seem to me to be too sacred and important to be guaranteed or condemned, not by our courts under proper due process assurances, but by a politician who may or may not be a saint or a tyrant, and who may or may not like the color of one's hair.9

Drawing Lines
Utah Liquor Control Commission v. Club Feraco10 involved a building that was divided inside by a partition. There was a bar on one side and a restaurant on the other. When an illegal sale of liquor was made to a police officer, the officer seized all personal property in both the bar and the restaurant. The majority of the Utah Supreme Court agreed with the trial court that, under the applicable statute, it was permissible to seize the property in the bar, but not the personal property in the restaurant. Justice Henriod disagreed:

I cannot subscribe to the trial court's conclusion that the club in question was something in the nature of a set of Siamese twins with respective Dr. Jekyll and Mr. Hyde personalities.

* * *

On the north of this so-called partition were a bar and nearby tables where members and their guests might sit. On the south of this so-called partition were tables where members and their guests might sit. For aught we know the members seated to the north could have ordered a steak, and those seated to the south could have ordered a bucket of ice and a mixer. Yet, according to the decision below, the arresting officers properly seized the tables and chairs to the north but made a grave error in seizing the tables and chairs to the south of this quasi-partition whose presence, with its lattice work and flowers, by some sort of statutory prestidigitation separated the reveling goats from the punctilious sheep. One wonders what the arresting officer should or could have done had there been a foursome seated at a table astraddle the imaginary Mason and Dixon line extending from the ends of the partition to the west and east walls, and certainly such a situation would have presented an enigmatic problem in division on the occasion of the drafting of a seizure and sale order. One wonders if the immunity that was granted in this case to the tables and chairs lying south of the border would have persisted had the arresting officers elected to buy a drink to the south instead of to the north. One wonders, in such case, if seizure of property would have to have been confined to the area south of the so-called partition, while that to the north thereof, including the bar and the liquor, would have enjoyed the immunity spoken of above as being in a domain geographically protected by the pseudo-partition with its imaginary extended lines.11

Predictions
Justice Henriod was not shy about warning the majority of the effect its rulings might have on future cases coming before the court. For example, in Startin v. Madsen,12 he commented that the majority's decision "establishes a precedent in the opinion of the writer that will return to plague us, and which will result in future fine distinction, apologetic attempt to explain, or outright reversal." In Gord v. Salt Lake City,13 he opined: "The main opinion, in my opinion, confuses the meaning of this statute to the point where a laboring man or his counsel is on a raft without a rudder, which will float back to this court for aid in cleansing the muddy waters provoked."

The Not So Subtle Disagreement
He was anything but subtle when he felt the majority had relied on weak authority or precedent. For example, he once attacked the reasoning of a majority as nothing more than "a weak and unrealistic substitute for precedent and judicial authority." Vrontikis Bros. Inc. v. Utah State Tax Comm'n.14 In another case he stated of the majority's opinion: "to determine this case by the illuminating phraseology mentioned, by judicial fiat and ipse dixit, and clearly without judicial precedent, simply casts a shadow on the rule announced by the great weight of authority, obscuring that which seems to exist in the clear light of logic and reason." Western States Refining Co. v. Berry.15

"The Great Train Robbery"
Perhaps his most colorful dissent came in Tribe v. Salt Lake City,16 when, now Chief Justice Henriod took issue with the majority's decision to, inter alia, uphold the constitutionality of the "Utah Neighborhood Development Act," which authorized the creation of a redevelopment agency and the agency's authority to tax and issue bonds, the funds from which would be used for the construction of private facilities. In a lengthy dissent, he spared nothing and no one.

In my opinion, this case represents one that is not an adversary proceeding, has no character as to justiciable controversy, is unilateral in objectivity, represents an apparent obeisance to self-interest pressure groups, is devoid of any outcry by the so-called protestants, - a case where both sides seem to furnish not only the silage that created some straw men, all of whom were fired upon, burned and killed, by the double-barreled musket of extinction, the triggers of which were pulled, one by the one side and one by the other. 17

The "straw men" were the individuals who were, in his view, chosen to be the plaintiffs in this case.

The complaint here... set up all the objections that a good municipal bond firm of attorneys could muster to set up straw men to be gunned down not only by their creators, but by the creators' adversaries, as was the case here.

In my opinion both the protesters and their declaratory judgment foes were of one mind, and there appeared to be not even a David in the crowd to take on the Goliath.

The [plaintiffs] either lent or sold their names to someone or anybody, as litigants, since they are conspicuous by absence. They were named in the complaint's caption, and on its first page were taxpayers claiming to represent all taxpayers from almost everywhere. They promptly performed the greatest disappearing act since Houdini lost his sawed-in-half woman.18

He asserted that certain provisions in the legislation were "as American as apple pie filled with cherries[,]"19 and even challenged the title of the legislation, writing:

Everyone likes to develop the Neighborhood which means homes, nice streets, a church and, if possible, maybe a playground or a hopscotch area, rather than the instant money-inspired non-Neighborhood, but commercial program for high rise hotels, banks, shoe stores, parking meters and parking lots, convenient for Sheraton, Continental Bank, Valley Bank, Zions Bank, Walker Bank, the Kearns Building, et al. One may call 20 acres of commerciality a Neighborhood if he chooses, when it is the choice of lobbyists who wrote the law, the special interests promoting the legislation, the legislators who fell for such fancy, phoney phraseology, city commissioners who committed the same sin and some courts, including, in my opinion, this one. The whole thing, however, is but a snare and a delusion. The legislature should have amended the Title to "The Commercial Encouragement Taxpayer Funded Complex." The word "Neighborhood" is the "blight" in this case, - not its virtue or description. 20

Assuming the role as advocate for the taxpayers in what he called both a "quixotic drama,"21 and a "legislative marathon,"22 he opined:

. . . I consider this case to be a $15,000,000 rip-off of taxpayers" money that ordinarily and constitutionally would have gone into the general fund owned by the citizens of Salt Lake City, - denied to them by a somewhat ridiculous two-hatted special commission that statutorily plays musical chairs on an eccentric carousel, providing a vehicle for an insurance policy against liability, - the premium for which is paid by a small filing fee, a large attorneys' fee, and a taxpayer's migraine headache.

I am well aware that after legislative approval, lobbyist participation, municipal Commission approbation, this dissent may be anathema to some interests and pressures that may have "engineered" this admittedly novel legislation, that seems to have had the planning, timing and strategy, wonted to be characteristic of The Great Train Robbery.23

He who represents himself...
Finally, to leave no question that Justice Henriod did carry a majority on more than one occasion, is the case of William Arnold Langley who decided to represent himself in all stages of his criminal defense. On appeal, Justice Henriod, writing for a unanimous court, was unsympathetic:

[A]s the adage goes, one who represents himself has a fool for a client, a truism poignantly borne out in this case, when defendant's loquacity was exceeded only by the idiocy of the crime for which he was convicted, when he uttered the profound observation that "I would like to show that I object to anyone assisting me in any way at this time" and that "I am my own advisory [sic], here," and that "If a lawyer assists me at this time, it eliminates reversible error." Very good bad advocacy.

State v. Langley24

1. See James E. Magleby & John M. Peterson, Justices of the Utah Supreme Court: 1896-1996 49-50 (1997).

2. Id. at 50.

3. 8 Utah 2d 183 (1958).

4. Id. at 187 (Henriod, J., dissenting).

5. Id. at 188.

6. 8 Utah 2d 314 (1959).

7. Id. at 319, 321 (Henriod, J., dissenting).

8. 6 Utah 2d 67 (1957).

9. Id. at 77, 78 (Henriod, J., dissenting).

10. 7 Utah 2d 172 (1958).

11. Id. at 179-80 (Henriod, J., dissenting).

12. 120 Utah 631, 643 (1951) (Henriod, J., dissenting).

13. 20 Utah 2d 138, 145 (1967) (Henriod, J., dissenting).

14. 9 Utah 2d 60, 66 (1959) (Henriod, J., dissenting).

15. 6 Utah 2d 336, 339 (1957) (Henriod, J., dissenting).

16. 540 P.2d 499 (Utah 1975).

17. Id. at 507 (Henriod, C.J., dissenting).

18. Id. at 510.

19. Id. at 509.

20. Id. at 508.

21. Id. at 507.

22. Id. at 511.

23. Id. at 507 (footnotes omitted).

24. 25 Utah 2d 29, 31 (1970) (emphasis added).