Utah Bar Journal

II. Appeals From State Administrative Agencies

Judicial review of administrative decisions for cases is governed by the Utah Administrative Procedures Act (UAPA), see Utah Code Ann. § 63G-4-102(1)(b) (2008); see also Utah Chapter of the Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 13, 226 P.3d 719; In re Questar Gas Co., 2007 UT 79, ¶ 28, 175 P.3d 545; Orchard Park Care Ctr. v. Dep’t of Health, 2009 UT App 284, ¶ 8, 222 P.3d 64.

As an initial note, for a reviewing court to grant relief under UAPA, it must determine that the party has been “substantially prejudiced” by the agency action in question. See Utah Code Ann. § 63G-4-403(4)(d); accord Nat’l Parks Conservation Ass’n v. Bd. of Trs., 2010 UT 13, ¶ 15, 231 P.3d 1193; Sullivan v. Utah Bd. of Oil, Gas & Mining, 2008 UT 44, ¶ 10, 189 P.3d 63; Questar Gas, 2007 UT 79, ¶ 48; Orchard Park, 2009 UT App 284, ¶ 8; Whitaker v. Utah State Ret. Bd., 2008 UT App 282, ¶ 10, 191 P.3d 814; Mendoza v. Labor Comm’n, 2007 UT App 186, ¶ 5, 164 P.3d 447. In other words, appellate courts must be able to determine that the alleged error was not harmless. See Nat’l Parks, 2010 UT 13, ¶ 15; Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 12, 148 P.3d 960.

Further, the principle of exhausting administrative remedies is embodied in the general provisions of UAPA. A party may seek judicial review only after exhausting all administrative remedies available. See Utah Code Ann. § 63G-4-401; id. § 63G-3-602(2)(a); Frito-Lay v. Utah Labor Comm’n, 2009 UT 71, ¶ 30, 222 P.3d 55 (stating that the exhaustion requirement mandates that the litigant follow all outlined administrative review procedures prior to state court having subject matter jurisdiction to hear the case); Salt Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 6, 184 P.3d 599 (noting that a party must exhaust administrative remedies before challenging a municipality’s land use decision); Nebeker v. Utah State Tax Comm’n, 2001 UT 74, ¶ 14, 34 P.3d 180; Pen & Ink, LLC v. Alpine City, 2010 UT App 203, ¶ 15, 238 P.3d 63 (mem.), cert. denied, 2010 Utah LEXIS 172 (Utah, Oct. 27, 2010); Holladay Towne Ctr., LLC v. Holladay, 2008 UT App 301, ¶ 6, 192 P.3d 302 (mem.) (providing that Utah law requires an aggrieved party to exhaust administrative remedies before challenging a land use decision in court); Decker v. Rolfe, 2008 UT App 70, ¶ 10, 180 P.3d 778 (stating that UAPA permits aggrieved parties to seek judicial review only after exhausting all administrative remedies except in a limited number of circumstances, including when other pertinent statutes do not require exhaustion); TDM, Inc. v. State Tax Comm’n, 2004 UT App 433, ¶ 4, 103 P.3d 190 (mem.) (per curiam) (noting that while parties need not exhaust administrative remedies if “it appears that exhaustion would serve no useful purpose,” the introduction of a constitutional issue “does not necessarily avoid the requirement to exhaust administrative remedies”).

A. Review of Informal Agency Proceedings

UAPA allows state agencies to promulgate rules designating as informal certain adjudicative proceedings. See Utah Code Ann. § 63G-4-202(1). Under UAPA, the district courts have jurisdiction to “review by trial de novo all final agency actions resulting from informal adjudicative proceedings.” Id. § 63G-4-402(1)(a); accord Friends of Great Salt Lake v. Utah Dep’t of Natural Res., 2010 UT 20, ¶ 14, 230 P.3d 1014; Taylor-West Weber Water Improvement Dist. v. Olds, 2009 UT 86, ¶ 6, 224 P.3d 709; Due S., Inc. v. Dep’t of Alcoholic Beverage Control, 2008 UT 71, ¶ 17, 197 P.3d 82. Section 63G-4-402(3)(a) requires that the trial court’s review of informal adjudicative proceedings be accomplished by holding a new trial, not just by reviewing an informal record. See Due S., Inc., 2008 UT 71, ¶ 17; Gilley v. Blackstock, 2002 UT App 414, ¶ 9, 61 P.3d 305; Sorenson’s Ranch Sch. v. Oram, 2001 UT App 354, ¶ 16, 36 P.3d 528. The review of an informal agency proceeding by a new trial at the trial court level ensures that an adequate record will be created for appellate court review. See Archer v. Bd. of State Lands & Forestry, 907 P.2d 1142, 1144 (Utah 1995); Cordova v. Blackstock, 861 P.2d 449, 452 (Utah Ct. App. 1993).

The trial court’s final orders and decrees from review of informal adjudicative proceedings of agencies may be appealed to the appellate courts. See Utah Code Ann. § 78A-3-102(3)(f) (2009); id. § 78A-4-103(2)(a); Taylor-West, 2009 UT 86, ¶ 2.

B. Review of Formal Agency Proceedings

Sections 63G-4-401, 403, and 404, see Utah Code Ann. §§ 63G-4-401, 403, 404 (2008) (formerly § 63-46b-16(4)(1997)), of UAPA outline the circumstances under which a reviewing court may grant relief from formal agency action. See Desert Power LP v. Pub. Serv. Comm’n, 2007 UT App 374, ¶ 11, 173 P.3d 218 (citing Anderson v. Pub. Serv. Comm’n, 839 P.2d 822, 824 (Utah 1992)). Some standards of review are explicitly set forth in section 63G-4-403(4). Others have been provided by appellate courts in interpreting the statute. See, e.g., Exxon Corp. v. Utah State Tax Comm’n, 2010 UT 16, ¶ 6, 228 P.3d 1246 (providing that the commission’s interpretation of general law including “case law, constitutional law, or non-agency specific legislative acts” is reviewed under a correction of error standard with no deference given to the agency’s decision (internal quotation marks omitted)); Merrill v. Utah Labor Comm’n, 2009 UT 26, ¶ 5, 223 P.3d 1089 (stating that the commission’s conclusions as to legality or constitutionality of statute should be reviewed for correctness, with no deference to commission (citing Amax Magnesium Corp. v. Utah State Tax Comm’n, 796 P.2d 1256, 1258 (Utah 1990))); Resort Retainers v. Labor Comm’n, 2010 UT App 229, ¶ 11, 238 P.3d 1081 (reviewing an agency’s application of its own rules to the facts is reviewed under “an intermediate standard, one of some, but not total deference” (internal quotation marks omitted)). The remainder of this administrative outline discusses the standards of review for formal agency proceedings and the diagram on the following page provides a flow chart for standards of review for formal agency proceedings.

1. Challenging Findings of Fact

a. Substantial Evidence Standard

Under UAPA, an agency’s factual findings will be affirmed only if they are supported by “substantial evidence when viewed in light of the whole record before the court.” Utah Code Ann. § 63G-4-403(4)(g); accord Utah Chapter of the Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 13, 226 P.3d 719; Mandell v. Auditing Div. of the Utah State Tax Comm’n, 2008 UT 34, ¶ 11, 186 P.3d 335; Resort Retainers, 2010 UT App 229, ¶ 13, (stating factual findings must be “supported by substantial evidence based upon the record as a whole”); Hymas v. Labor Comm’n, 2008 UT App 471, ¶ 12, 200 P.3d 218, cert. denied, 2009 Utah LEXIS 75 (Utah, Apr. 1, 2009); Desert Power LP, 2007 UT App 374, ¶ 12.

“‘Substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.’” Pen & Ink, LLC v. Alpine City, 2010 UT App 203, ¶ 16, 238 P.3d 63 (mem.) (quoting Caster v. W. Valley City, 2001 UT App 212, ¶ 4, 29 P.3d 22), cert. denied, 2010 Utah LEXIS 172 (Utah, Oct. 27, 2010); accord Kennon v. Air Quality Bd. 2009 UT 77, ¶ 28, —P.3d—; WWC Holding Co., Inc. v. Pub. Serv. Comm’n of Utah, 2002 UT 23, ¶ 8, 44 P.3d 714; Pac. W. Communities, Inc. v. Grantsville City, 2009 UT App 291, ¶ 22, 221 P.3d 280, cert. denied, 2010 Utah LEXIS 29 (Utah, Jan. 20, 2010); Desert Power LP, 2007 UT App 374, ¶ 11. Substantial evidence is more than a “mere scintilla of evidence,” though “something less than the weight of the evidence.” Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 35, 164 P.3d 384 (internal quotation marks omitted); Harmon City, Inc. v. Draper City, 2000 UT App 31, ¶ 60, 997 P.2d 321.

When reviewing an agency’s decision under the substantial evidence test, the reviewing court “does not [conduct] a de novo review or a reweighing of the evidence.” Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 21, 38 P.3d 291 (internal quotation marks omitted); accord Huemiller v. Ogden Civil Serv. Comm’n, 2004 UT App 375, ¶ 2, 101 P.3d 394 (mem.). An appellate court will not substitute its judgment “as between two reasonably conflicting views,” even though it may have come to a different conclusion had the case come before it for de novo review. Carter v. Labor Comm’n Appeals Bd., 2006 UT App 477, ¶ 17, 153 P.3d 763 (internal quotation marks omitted). “It is the province of the Board, not appellate courts, to resolve conflicting evidence, and where inconsistent inferences can be drawn from the same evidence, it is for the Board to draw the inferences.” EAGALA, Inc. v. Dep’t of Workforce Servs, 2007 UT App 43, ¶ 16, 157 P.3d 334 (quoting Grace Drilling Co. v. Bd. of Review of the Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct. App. 1989)); accord Carter, 2006 UT App 477, ¶ 17. When applying the substantial evidence test under UAPA, appellate courts must consider not only the evidence supporting the board’s findings but also the evidence that fairly detracts from the weight of the board’s evidence. See Rd. Runner Oil, Inc. v. Bd. of Oil, Gas & Mining, 2003 UT App 275, ¶ 15, 76 P.3d 692 (citing Grace Drilling Co., 776 P.2d at 68); see WWC Holding, 2002 UT 23, ¶ 8 (providing that in evaluating sufficiency of evidence, appellate court “will not sustain a decision which ignores uncontradicted, competent, credible evidence to the contrary”). Because a party seeking review of an agency order must show that the agency’s factual determinations are not supported by substantial evidence, the reviewing court examines the facts and all legitimate inferences drawn therefrom in the light most favorable to the agency’s findings. See ABCO Enters v. Utah State Tax Comm’n, 2009 UT 36, ¶ 1 n.1, 211 P.3d 382; WWC Holding, 2002 UT 23, ¶ 2.

b. Marshaling Cases

The following are cases involving appeals from administrative agencies in which appellate courts address the marshaling requirement. See Kennon, 2009 UT 77, ¶ 27 (determining that party properly marshaled all record evidence available to support board findings, namely a photocopy of a Post-it note and a letter from the division); Ball v. Pub. Serv. Comm’n, 2007 UT 79, ¶ 39, 177 P.3d 545 (finding that rather than properly marshaling evidence in support of the commission’s finding, parties merely advocated their own position); Martinez, 2007 UT 42, ¶¶ 17-21; WWC Holding, 2002 UT 23, ¶¶ 8, 15 (finding that rather than properly marshaling the evidence, appellant simply pointed to testimony in the record favorable to its position); Clements v. Utah State Tax Comm’n, 2002 UT 1, ¶ 1, 16 P.3d 1250 (determining that party failed to meet obligation to marshal evidence and then demonstrate fatal flaw in that evidentiary support); Associated Gen. Contractors, 2001 UT 112, ¶ 34 (finding that party “utterly fails to marshal the evidence in support of the Board’s finding”); Morgan Cnty. v. Holnam, Inc., 2001 UT 57, ¶ 12 n.8, 29 P.3d 629 (finding that county failed to marshal evidence and thus, court would not disturb the commission’s findings); Beaver Cnty. v. WilTel, Inc., 2000 UT 29, ¶ 25, 995 P.2d 602 (finding party failed to marshal all relevant evidence); Guenon v. Midvale City, 2010 UT App 51, ¶¶ 5-6, 230 P.3d 1032 (mem.) (determining that officer omitted critical facts from his brief, thus failing to properly marshal evidence resulting in court accepting the board’s findings of fact as true), cert. denied, 2010 Utah LEXIS 124 (Utah, June 11, 2010); Utah Auto Auction v. Labor Comm’n, 2008 UT App 293, ¶ 9 n.4, 191 P.3d 1252 (stating that party need not marshal when only challenging legal conclusions drawn from decision); EAGALA, 2007 UT App 43, ¶ 15 (finding that party properly marshaled the evidence in support of board’s decision); Carter v. Labor Comm’n Appeals Bd., 2006 UT App 477, ¶ 12, 153 P.3d 763; Ameritemps, Inc. v. Labor Comm’n, 2005 UT App 491, ¶ 27, 128 P.3d 31 (determining that petitioner’s “selective recitation of the facts” did not meet the marshaling requirement), aff’d, 133 P.3d 437 (Utah 2006); Save Our Canyons v. Bd. of Adjustment, 2005 UT App 285, ¶¶ 15-17, 116 P.3d 978 (finding that party failed to marshal all evidence that supported findings); Huemiller, 2004 UT App 375, ¶ 6 (finding that party failed to mention pertinent facts in marshaling effort).

c. Examples of Fact Questions

The following cases contain examples of factual issues reviewed under the substantial evidence standard of review:

(1) Determining the “essential functions” of prior employment and ascertaining whether other work is “reasonably available.” Martinez, 2007 UT 42, ¶ 23.

(2) Whether a party’s own miscalculations, decisions, and actions affected timelines and caused delays. See Desert Power LP v. Pub. Serv. Comm’n, 2007 UT App 374, ¶¶ 15-16, 173 P.3d 218.

(3) Whether there are conflicting medical reports is a question of fact. See Resort Retainers v. Labor Comm’n, 2010 UT App 229, ¶ 24, 238 P.3d 1081.

(4) Whether party knew his expenses were improper. See EAGALA, Inc. v. Dep’t of Workforce Servs., 2007 UT App 43, ¶ 7, 157 P.3d 334.

(5) Whether a preliminary plat is part of an annexation agreement. See Pen & Ink, LLC. v. Alpine City, 2010 UT App 203, ¶ 17, 238 P.3d 63 (mem.), cert. denied, 2010 Utah LEXIS 172 (Utah, Oct. 27, 2010).

(6) Whether party provided its insurance carrier with written notice. See Pinnacle Homes, Inc. v. Labor Comm’n, 2007 UT App 368, ¶ 14, 173 P.3d 208.

(7) Whether employee established a causal connection between her complaint letter and her termination. See Carter v. Labor Comm’n Appeals Bd., 2006 UT App 477, ¶ 13, 153 P.3d 763.

(8) Whether company took adverse action subsequent to a protected activity. See Viktron/Lika Utah v. Labor Comm’n, 2001 UT App 394, ¶ 5, 38 P.3d 993.

d. Adequacy of Agencies’ Factual Findings

“‘An administrative agency must make findings of fact and conclusions of law that are adequately detailed so as to permit meaningful appellate review.’” Arrow Legal Solutions, Group, P.C. v. Dep’t. of Workforce Servs., 2007 UT App 9, ¶ 15, 156 P.3d 830 (quoting Adams v. Bd. of Review of Indus. Comm’n, 821 P.2d 1, 4 (Utah Ct. App. 1991)); accord Wood v. Labor Comm’n, 2005 UT App 490, ¶ 9, 128 P.3d 41 (quoting LaSal Oil Co. v. Dep’t of Envtl Quality, 843 P.2d 1045, 1047 (Utah Ct. App. 1992)). An agency’s failure to make adequate findings of fact on material issues renders its findings “‘arbitrary and capricious unless the evidence is clear, uncontroverted and capable of only one conclusion.’” Strate v. Labor Comm’n, 2006 UT App 179, ¶ 16, 136 P.3d 1273 (quoting Nyrehn v. Indus. Comm’n, 800 P.2d 330, 335 (Utah Ct. App. 1990)); accord Resort Retainers v. Labor Comm’n, 2010 UT App 229, ¶ 14, 238 P.3d 1081 (stating appellate court will not overturn commission’s factual findings “‘unless they are arbitrary and capricious, or wholly without cause, or contrary to the one [inevitable] conclusion from the evidence’” (quoting McKesson Corp. v. Labor Comm’n, 2002 UT App 10, ¶ 25, 41 P.3d 468 (alteration in original))); Utahns for Better Dental Health-Davis, Inc. v. Davis Cnty. Comm’n, 2005 UT App 347, ¶ 7, 121 P.3d 39 (stating similar standard for findings regarding award of attorney fees).

An agency’s failure to make adequate findings is prejudicial to the appealing party. See Arrow Legal Solutions, 2007 UT App 9, ¶ 15 (findings must be adequate to permit meaningful appellate review (citing Adams, 821 P.2d at 4) (recognizing that without adequate findings, petitioner challenging agency’s factual findings cannot marshal evidence supporting findings)). When the agency’s findings are inadequate, the case will be remanded unless the failure to make adequate findings of fact and conclusions of law is nevertheless harmless. See id. (stating that remand particularly appropriate when party was harmed by inadequate factual findings).

2. Challenging Discretionary Rulings

a. Challenging Agency’s Interpretation of Statutes

Utah Code section 63G-4-403(4)(h)(i) states that an appellate court may grant relief if an agency’s action is “‘an abuse of the discretion delegated to the agency by statute.’” See Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 24, 164 P.3d 384 (quoting Utah Code Ann. § 63-46b-16(4)(h)(i) (2004)); Petro-Hunt, L.L.C. v. Dep’t of Workforce Servs., 2008 UT App 391, ¶ 8, 197 P.3d 107 (stating that appellate court shall grant relief if the agency action is “an abuse of discretion delegated to the agency by statute” (internal quotation marks omitted)), cert. denied, 2009 Utah LEXIS 32 (Utah, Feb. 12, 2009). An agency’s interpretation and application of statutory terms should be reviewed under a correction of error standard. See Heber Light & Power v. Pub. Serv. Comm’n, 2010 UT 27, ¶ 6, 231 P.3d 1203; ExxonMobile Corp v. Utah State Tax Comm’n, 2003 UT 53, ¶ 10, 86 P.3d 706 (applying correction of error standard and granting no deference for agency interpretation of oil and gas valuation methods), abrogated in part by Union Oil Co. v. Utah State Tax Comm’n, 2009 UT 78, 222 P.3d 1158; Wood v. Labor Comm’n, 2005 UT App 490, ¶ 5, 128 P.3d 41. However, an exception to the rule is that appellate courts defer to an agency’s statutory interpretation “‘when there is a grant of discretion to the agency concerning the language in question, either expressly made in the statute or implied from the statutory language.’” Id. (quoting Esquivel v. Labor Comm’n, 2000 UT 66, ¶ 16, 7 P.3d 777); see also LPI Servs. & Travelers Indem. Co. of Conn. v. Labor Comm’n, 2007 UT App 375, ¶ 8, 173 P.3d 858, cert. denied, 187 P.3d 232 (Utah 2008); accord Rd. Runner Oil, Inc. v. Bd. of Oil, Gas & Mining, 2003 UT App 275, ¶ 26, 76 P.3d 692 (citing Morton Int’l, Inc. v. Auditing Div., 814 P.2d 581, 589 (Utah 1991)).

When such a grant of discretion exists, appellate courts will not disturb the agency’s ruling unless its determination exceeds “‘the bounds of reasonableness and rationality.’” Rd. Runner, 2003 UT App 275, ¶ 26 (quoting Osman Home Improvement v. Indus. Comm’n, 958 P.2d 240, 243 (Utah Ct. App. 1998)); accord Salt Lake Cnty. v. Labor Comm’n, 2009 UT App 112, ¶ 9, 208 P.3d 1087 (stating appellate court reviews the agency’s action for reasonableness when the legislature has granted an agency discretion); Rowsell v. Labor Comm’n, 2008 UT App 187, ¶ 8, 186 P.3d 968 (mem.) (stating the statute’s grant of discretion to commission to apply the law requires that appellate courts apply intermediate standard of review (citing Johnson Bros. Constr. v. Labor Comm’n, 967 P.2d 1258, 1259 (Utah Ct. App. 1998))); LPI Servs., 2007 UT App 375, ¶ 8 (stating court assesses whether ruling is within the bounds of reasonableness).

This review for reasonableness and rationality is the same standard as the “abuse of discretion” standard mentioned in Utah Code section 63G-4-403(4)(h)(i). See Sullivan v. Utah Bd. of Oil, Gas & Mining, 2008 UT 44, ¶ 10, 189 P.3d 63; WWC Holding Co., Inc. v. Pub. Serv. Comm’n, 2002 UT 23, ¶ 8, 44 P.3d 714.

(i) Explicit Discretion

An explicit grant of discretion exists “when a statute specifically authorizes an agency to interpret or apply statutory language.” King v. Indus. Comm’n, 850 P.2d 1281, 1287 (Utah Ct. App. 1993); see Salt Lake Cnty. v. Labor Comm’n, 2009 UT App 112, ¶ 10, 208 P.3d 1087. An explicit grant of discretion to the agency can be found in the following statutory language in the 2005 version of Utah Code section 34A-1-301: “‘The [c]ommission has the duty and the full power, jurisdiction, and authority to determine the facts and apply the law in this chapter or any other title or chapter it administers.’” Salt Lake Cnty., 2009 UT App 112, ¶ 10 (quoting Utah Code Ann. § 34A-1-301 (2005)); Barnard & Burk Group, Inc. v. Labor Comm’n, 2005 UT App 401, ¶ 5, 122 P.3d 700; Ae Clevite v. Labor Comm’n, 2000 UT App 35, ¶ 7, 996 P.2d 1072. An explicit grant can also be found in this statutory language in Utah Code section 34A-2-413(7)(f)(i): “‘[t]he commission shall establish rules regarding part-time work and offset.’” LPI Servs. v. McGee, 2009 UT 41, ¶ 8, 215 P.3d 135 (quoting Utah Code Ann. § 34A-2-413(7)(f)(i) (2005)). Another example of an explicit grant of discretion can be found in Utah Code section 35A-4-405(2)(a), which states, “discharged for just cause…if so found by the division.” Albertsons, Inc. v. Dep’t of Emp’t Sec., 854 P.2d 570, 573 (Utah Ct. App. 1993) (omission in original) (citing former Utah Code Ann. § 35-4-5(b)(1) (Supp. 1992)).

(ii) Implied Discretion

If an agency has not been granted explicit discretion to interpret a statute, the agency may nonetheless have implied discretion. An implied grant of discretion may be found from statutory language such as “equity and good conscience.” McGee, 2009 UT 41, ¶ 8 (citing Salt Lake City Corp. v. Dep’t of Emp’t Sec., 657 P.2d 1312, 1316-17 (Utah 1982)); Martinez, 2007 UT 42, ¶ 44. Thus, “‘when the operative terms of a statute are broad and generalized, these terms bespeak a legislative intent to delegate their interpretation to the responsible agency.’” McGee, 2009 UT 41, ¶ 8 (quoting Morton Int’l, Inc. v. Auditing Div. of the Utah State Tax Comm’n, 814 P.2d 581, 588 (Utah 1991)). Further, an implicit grant of authority exists when statutory language suggests that the legislature has left the particular issue in question undecided. See id. ¶ 9 (citing Morton Int’l, 814 P.2d at 588). Accordingly, when there is “‘more than one permissible reading of the statute and no basis in the statutory language or legislative history to prefer one interpretation over another,’” the agency “‘that has been granted authority to administer the statute is the appropriate body’” to interpret it. Id. (quoting Morton Int’l, 814 P.2d at 589); accord Ekshteyn v. Dep’t of Workforce Servs., 2002 UT App 74, ¶ 10, 45 P.3d 173; see also R.O.A. Gen., Inc. v. Dep’t of Transp., 966 P.2d 840, 843 (Utah 1998) (holding when legislative intent is not discernible by applying traditional rules of statutory construction, agency has implied grant of authority and decision is reviewed for reasonableness and rationality). “[I]n the absence of a discernible legislative intent concerning the specific question in issue, a choice among permissible interpretations of a statute is largely a policy determination. The agency that has been granted authority to administer the statute is the appropriate body to make such a determination.” R.O.A. Gen., 966 P.2d at 843 (internal quotation marks omitted); accord McGee, 2009 UT 41, ¶ 9.

However, an implied grant is not found, and an appellate court grants no deference to an agency’s interpretation of a statute, when that court is in as good a position as the agency to interpret the general statutory language in question, or when the legislative intent concerning the specific question at issue can be derived through traditional methods of statutory construction. See McGee, 2009 UT 41, ¶¶ 9, 11 (citing Morton Int’l, 814 P.2d at 589).

b. Challenging Agency’s Application of Law

An agency’s application of the law to the facts of a case is reviewed for correctness unless the agency is given a measure of discretion. See Utah Code Ann. § 63G-4-403(4)(d) (2008); Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 24, 164 P.3d 384 (stating that an abuse of discretion standard is used “when an agency has discretion to apply its factual findings to the law” (internal quotation marks omitted)); Ae Clevite, Inc. v. Labor Comm’n, 2000 UT App 35, ¶ 6, 996 P.2d 1072 (stating absent grant of discretion, appellate courts use correction of error standard in reviewing agency’s application of statutory term); Drake v. Indus. Comm’n of Utah, 939 P.2d 177, 181 (Utah 1997); Morton Int’l, 814 P.2d at 587-88. The terms application of the law and mixed question of law and fact have been used interchangeably by the Utah appellate courts. See Se. Utah Ass’n of Local Gov’t v. Workforce Appeals Bd., 2007 UT App 20, ¶ 6, 155 P.3d 932.

The measure of discretion may derive from an implicit or explicit grant in the statute applied by an agency. See Martinez, 2007 UT 42, ¶¶ 25, 41 (citing Morton Int’l, 814 P.2d at 588-89); Rd. Runner Oil, Inc. v. Bd. of Oil, Gas & Mining, 2003 UT App 275, ¶ 26, 76 P.3d 692 (stating that grant of discretion may be made either expressly in the statute or implied from the statutory language). For a discussion of implicit and explicit grants of discretion, please refer to the above section addressing these topics in the context of agency interpretations of statute.

Otherwise, an agency may be granted a measure of discretion in applying the law to the facts of a case through the Pena analysis adopted by the supreme court in Drake v. Industrial Commission of Utah, 939 P.2d 177, 181-82 (Utah 1997) (citing State v. Pena, 869 P.2d 932, 935-39 (Utah 1994)), for use in administrative agency cases. See Martinez, 2007 UT 42, ¶¶ 27-28.

(i) Explicit Discretion

When a statute makes an explicit grant of discretion to an agency, the appellate court applies a reasonableness and rationality standard, and may only overturn the agency’s conclusions of law if they are unreasonable and irrational. See Ae Clevite, 2000 UT App 35, ¶ 7 (stating when there exists a grant of discretion, appellate courts will not disturb the agency’s determination unless it “exceeds the bounds of reasonableness and rationality so as to constitute an abuse of discretion”).

(ii) Implicit Discretion

The legislature may also implicitly delegate discretion to the agency to apply statutes. See Martinez, 2007 UT 42, ¶ 25.

(iii) Pena Factors and Case Examples

In general, the legal effect of specific facts “is the province of the appellate courts, and no deference need be given a trial court’s resolution of such questions of law.” Drake, 939 P.2d at 181. However, “policy considerations and other factors” may influence the appellate court “‘to define a legal standard so that it actually grants some operational discretion to the trial courts applying it.’” Id. (quoting State v. Vincent, 883 P.2d 278, 282 (Utah 1994) (citing State v. Pena, 869 P.2d 932, 935-36 (Utah 1994))); see Mandell v. Auditing Div. of the Utah State Tax Comm’n, 2008 UT 34, ¶ 12, 186 P.3d 335 (stating discretion accorded under mixed questions of law and fact varies “‘according to the nature of the legal concept at issue’” (quoting State v. Levin, 2006 UT 50, ¶ 21, 144 P.3d 1096)). Consequently, appellate courts may review an agency’s application of the law to the facts, depending on the issue, with varying levels of rigor ranging between de novo and broad discretion. See Drake, 939 P.2d at 181; Pena, 869 P.2d at 936-39; see also Utah Chapter of the Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 14, 226 P.3d 719 (stating questions of “ultimate fact” or “mixed findings of fact and law,” are reviewed under an “intermediate standard” that considers whether the agency’s determination was rational (internal quotation marks omitted)); Resort Retainers v. Labor Comm’n, 2010 UT App 229, ¶ 11, 238 P.3d 1081 (reviewing an agency’s application of its own rules to the facts is reviewed under “an intermediate standard, one of some, but not total deference” (internal quotation marks omitted)); Pinnacle Homes, Inc. v. Labor Comm’n, 2007 UT App 368, ¶ 8, 173 P.3d 208 (stating that because issue requires application of a statutory standard to the facts, it is reviewed with “some deference”); EAGALA, Inc. v. Dep’t of Workforce Servs., 2007 UT App 43, ¶ 9, 157 P.3d 334 (stating appellate court gives degree of deference when applying application of law to facts); Utah Ass’n v. Workforce Appeals Bd., 2007 UT App 20, ¶ 6, 155 P.3d 932 (reviewing agency’s application of law to particular set of facts, giving “a degree of deference” to the agency); Arrow Legal Solutions Group, P.C. v. Dep’t of Workforce Servs., 2007 UT App 9, ¶ 6, 156 P.3d 830 (stating appellate court grants board “moderate deference” in reviewing board’s application of the law to the relevant facts); Autoliv ASP, Inc. v. Dep’t of Workforce Servs., 2001 UT App 198, ¶ 16, 29 P.3d 7.

In deciding the degree of deference to allow an agency’s application of law to fact, appellate courts consider the agency’s expertise in a specific area of law. See Terry v. Ret. Bd., 2007 UT App 87, ¶ 8, 157 P.3d 362; EAGALA, 2007 UT App 43, ¶ 9 (providing that appellate court grants “moderate deference” to Board’s decision because Employment Security Act requires “little highly specialized or technical knowledge”); Autoliv, 2001 UT App 198, ¶ 16 (stating degree of deference accorded to agency’s application of law to fact is determined by, among other factors, the agency’s expertise).

As stated in the introduction to the first article in this standard of review series, “it appears that the Pena factors for review of mixed questions have been discarded in favor of a three factor ‘balancing test’” set forth in State v. Levin, 2006 UT 50, ¶ 28, 144 P.3d 1096. Norman H. Jackson, Utah Standards of Appellate Review, 23 Utah Bar J. 10, 15 (2010). The Utah Supreme Court has applied the new three factor test in the administrative law context:

To determine the standard of review for a mixed question of law and fact, we apply a test that considers (1) the complexity of the facts; (2) the degree to which the lower court relied on observable facts that cannot be adequately reflected in the record, such as witness demeanor and appearance; and (3) any policy reasons favoring or disfavoring the exercise of discretion.

Mandell, 2008 UT 34, ¶ 12.

The following cases contain examples of agency application of law to fact or mixed questions:

(1) Whether integrated gasification combine cycle is an available control technology. See Sierra Club, 2009 UT 76, ¶ 44.

(2) Whether a worker is an employee within the meaning of the worker’s compensation laws. See Pinnacle Homes, Inc. v. Labor Comm’n, 2007 UT App 368, ¶ 8, 273 P.3d 208.

(3) The ultimate decision as to whether good cause exists is a mixed question of law and fact and should be affirmed only if it is reasonable. See Autoliv ASP v. Dep’t of Workforce Servs., 2000 UT App 223, ¶ 11, 29 P.3d 7.

(4) Whether company had any supervision or control over entity that warrants finding that a worker was entity’s employee. See Pinnacle Homes, 2007 UT App 368, ¶ 18, 173.

(5) Whether employee’s separation from company constituted a discharge rather than a “voluntary quit without good cause.” See Arrow Legal Solutions Group, P.C. v. Dep’t of Workforce Servs., 2007 UT App 9, ¶ 6, 156 P.3d 830 (giving “moderate deference”).

(6) Whether an employee is terminated for just cause. See EAGALA, Inc., v. Dep’t of Workforce Servs., 2007 UT App 43, ¶ 9, 157 P.3d 334 (providing appellate court grants “moderate deference” to the board’s decision); See Utah Ass’n of Local Gov’t v. Workforce Appeals Bd., 2007 UT App 20, ¶ 6, 155 P.3d 932 (stating appellate courts give “a degree of deference to the agency”).

(7) Whether the district court properly rejected a change of use of a water right application when the ground for that rejection was the probability that vested water rights would be impaired by the use proposed in the application. See Searle v. Milburn Irrigation Co., 2006 UT 16, ¶ 18, 133 P.3d 382 (giving “significant, but not broad, discretion”).

(8) Whether company should be equitably estopped from denying the existence of a policy after issuing a certificate. See Terry v. Ret. Bd., 2007 UT App 87, ¶¶ 8, 14, 157 P.3d 362.

(9) Whether decision to terminate was an abuse of discretion. See Sorge v. Office of the Attorney Gen., 2006 UT App 2, ¶ 17, 128 P.3d 566 (applying deferential standard).

(10) Whether the commission erroneously applied the Allen test for proving legal causation is a mixed question of law and fact reviewed for reasonableness and rationality. See Utah Auto Auction v. Labor Comm’n, 2008 UT App 293, ¶ 8, 191 P.3d 1252; Acosta v. Labor Comm’n, 2002 UT App 67, ¶¶ 11, 18, 44 P.3d 819.

(11) Whether a special errand is within an employee’s scope of employment. See Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 28, 164 P.3d 384 (citing Drake v. Indus. Comm’n, 939 P.2d 177 (Utah 1997)).

c. Challenging Determinations Contrary to Agency’s Rule

Under Utah Code section 63G-4-403(4)(h)(ii), the appellate court reviews whether the agency action is contrary to a rule of the agency by applying an intermediate deference reasonableness and rationality standard of review. Cf. Bradshaw v. Wilkinson Water Co., 2004 UT 38, ¶¶ 8, 32, 94 P.3d 242; Westside Dixon Assocs. LLC v. Utah Power & Light Co./Pacificorp, 2002 UT 31, ¶ 7, 44 P.3d 775 (citing Utah Code Ann. § 63-46b-1 to -22 (1997)).

d. Challenging Rulings Contrary to Agency’s Prior Practice

Under Utah Code section 63G-4-403(4)(h)(iii), the appellate court reviews whether the agency action is contrary to the agency’s prior practice and whether the inconsistency has a fair and rational basis. If the challenging party can prove by a preponderance of the evidence that the agency’s action was contrary to prior practice, the agency’s reason for the inconsistency or argument of consistency is reviewed under a reasonableness and rationality standard of review. See Comm. of Consumer Servs. v. Pub. Serv. Comm’n, 2003 UT 29, ¶ 13, 75 P.3d 481 (stating commission’s safety rationale is “neither an adequate nor a fair and rational basis for departing from its prudence review standard”); Questar Gas Co. v. Utah Pub. Serv. Comm’n, 2001 UT 93, ¶¶ 18-19, 34 P.3d 218; Brent Brown Dealerships v. Tax Comm’n, 2006 UT App 261, ¶ 31 n.5, 139 P.3d 296 (stating that citation to one commission case involving a statutory violation different from the one at issue is insufficient to show departure from prior practice); Rd. Runner Oil, Inc. v. Bd. of Oil, Gas & Mining, 2003 UT App 275, ¶ 25, 76 P.3d 692 (finding petitioners failed to show that board’s actions are inconsistent with actions involving a similar fact pattern); Kelly v. Salt Lake City Civil Serv. Comm’n, 2000 UT App 235, ¶¶ 29-33, 8 P.3d 1048 (determining that party failed to show inconsistency).

e. Challenging Agency’s “Arbitrary and Capricious” Actions

Under Utah Code section 63G-4-403(4)(h)(iv), when a claim is brought alleging that an agency action was arbitrary and capricious, the appellate court reviews the agency action for reasonableness and rationality. See Rd. Runner, 2003 UT App 275, ¶ 24 (finding that because the board based its decision upon substantial evidence, decision was reasonable and rational); Utah Chapter of the Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 13, 226 P.3d 719 (determining that UAPA grants relief if agency action is “‘otherwise arbitrary or capricious’” (quoting Utah Code Ann. § 63G-4-403(4)(d), (g),(h) (Supp. 2008)).

3. Challenging Conclusions of Law

If, as discussed above, an administrative agency has not been given discretion to interpret and administer a statute, under Utah Code section 63-46b-16(4)(d), appellate courts review the agency decision under a correction-of-error standard. See Utah Chapter of the Sierra Club, 2009 UT 76, ¶ 13; LPI Servs. v. McGee, 2009 UT 41, ¶ 7, 215 P.3d 135; Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶¶ 41-42, 164 P.3d 384; Comm. of Consumer Servs. v. Pub. Serv. Comm’n, 2003 UT 29, ¶ 8, 75 P.3d 481; Salt Lake Cnty. v. Labor Comm’n, 2009 UT App 112, ¶ 9, 208 P.3d 1087; Ae Clevite, Inc. v. Labor Comm’n, 2000 UT App 35, ¶ 6, 996 P.2d 1072. Appellate courts apply a correction-of-error standard not simply because the court characterizes an issue as one of general law, but because the agency has no special experience or expertise placing it in a better position than the reviewing courts to construe the law. See Martinez, 2007 UT 42, ¶ 45 (noting that grants of discretion should be limited to issues on which agencies have “‘special experience or expertise placing [them] in a better position than the courts to construe the law’” (quoting King v. Indus. Comm’n, 850 P.2d 1281, 1286 (Utah Ct. App. 1993))); WWC Holding Co. v. Pub. Serv. Comm’n, 2002 UT 23, ¶ 8, 44 P.3d 714; Level 3 Commc’ns, LLC v. Pub. Serv Comm’n, 2007 UT App 127, ¶ 9, 163 P.3d 652.

a. Examples of Questions of Law

(1) Whether the department “decided all of the issues requiring resolution.” Orchard Park Care Ctr. v. Dep’t of Health, 2009 UT App 284, ¶ 8, 222 P.3d 64.

(2) An “interpretation of a contract presents a question of law.” Desert Power, LP v. Pub. Serv. Comm’n, 2007 UT App 374, ¶ 12, 173 P.3d 218 (stating that when reviewing an application or interpretation of law, appellate court uses correction of error standard, giving no deference to commission’s interpretation).

(3) A municipality’s decision to deny a rezoning request is a question of law. See Petersen v. Riverton City, 2010 UT 58, ¶ 8, —P.3d—.

(4) Whether agency’s actions violated a party’s due process rights. See Kennon v. Air Quality Bd., 2009 UT 77, ¶ 14, —P.3d—; Resort Retainers v. Labor Comm’n, 2010 UT App 229, ¶ 12, 238 P.3d 1081 (“Due Process challenges are questions of law that we review applying a correction of error standard.” (internal quotation marks omitted)).

(5) Whether a party has standing. See Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 12, 148 P.3d 960.

(6) Whether the commission’s order dismissing a case with prejudice was enforceable as a judicial judgment is a question of law, reviewed for correctness. See Rowsell v. Labor Comm’n, 2008 UT App 187, ¶ 9, 186 P.3d 968 (mem.).

(7) “Burden of proof questions typically present issue of law that an appellate court reviews for correctness.” Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 41, 164 P.3d 384.

(8) Whether a state administrative rule is preempted by a federal statute. See WWC Holding Co. v. Pub. Serv. Comm’n, 2002 UT 23, ¶ 8, 44 P.3d 714.

(9) Whether a state administrative agency engaged in an unlawful decision-making process. See id.

(10) Whether subject matter jurisdiction exists is a question of law. See Ameritemps, Inc. v. Utah Labor Comm’n, 2007 UT 8, ¶ 6, 152 P.3d 298; Beaver Cnty. v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147.

(11) Whether a contract has been formed. See Terry v. Ret. Bd., 2007 UT App 87, ¶ 7, 157 P.3d 362.

(12) Whether an agency has jurisdiction. See Mendoza v. Labor Comm’n, 2007 UT App 186, ¶ 5, 164 P.3d 447.

(13) Whether res judicata bars an action presents a question of law. See Strate v. Labor Comm’n, 2006 UT App 179, ¶ 14, 136 P.3d 1273.

4. Appeals from the State Tax Commission

The appellate advocate should be aware of Utah Code section 59-1-610, which codifies a separate standard of review for appeals from formal adjudicative proceedings before the state tax commission. The standard of review for written findings of fact from formal adjudicative proceedings by the Utah State Tax Commission is a substantial evidence standard. See Utah Code Ann. § 59-1-610(1)(a) (2008); ABCO Enters. v. Utah State Tax Comm’n, 2009 UT 36, ¶ 7, 211 P.3d 382; Mountain Ranch Estates v. Utah State Tax Comm’n, 2004 UT 86, ¶ 7, 100 P.3d 1206 (stating that appellate court affirms commission’s factual findings if they are supported by substantial evidence); Nebeker v. Utah State Tax Comm’n, 2001 UT 74, ¶ 21, 34 P.3d 180; Brent Brown Dealerships v. Tax Comm’n, 2006 UT App 261, ¶ 8, 139 P.3d 296; Kennecott Utah Copper Corp. v. Utah State Tax Comm’n, 2004 UT App 60, ¶ 10, 87 P.3d 751; Bd. Of Equalization Summit Cnty. v. State Tax Comm’n, 2004 UT App 283, ¶ 5, 98 P.3d 782. Substantial evidence “is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.” Atlas Steel, Inc. v. Utah State Tax Comm’n, 2002 UT 112, ¶ 16, 61 P.3d 1053 (internal quotation marks omitted); Yeargin, Inc. v. Auditing Div. of the Utah State Tax Comm’n, 2001 UT 11, ¶ 11, 20 P.3d 287. In order to challenge the findings of fact, the party must marshal the evidence in support of the decision of the tax commission, and then demonstrate the fatal flaw in that evidentiary support. See Clements v. Utah State Tax Comm’n, 2001 UT 1, ¶ 1, 16 P.3d 1250.

The standard of review for conclusions of law is the correction-of-error standard “unless there is an explicit grant of discretion contained in a statute at issue before the appellate court.” Utah Code Ann. § 59-1-610(1)(b); accord ABCO Enters., 2009 UT 36, ¶ 7; Utah Ry. Co. v. Utah State Tax Comm’n, 2000 UT 49, ¶ 6, 5 P.3d 652 (stating appellate court grants commission no deference concerning its conclusion of law, applying correction of error standard); Brent Brown Dealerships, 2006 UT App 261, ¶ 8; Kennecott, 2004 UT App 60, ¶ 10; Alpine Sch. Dist. Bd. of Educ. v. State Tax Comm’n, 2000 UT App 319, ¶ 6, 14 P.3d 125. “If the Commission is granted discretion by the statute at issue, then the standard of review is narrower. The court is to defer to the Commission’s conclusions of law, applying a reasonableness standard.” Newspaper Agency Corp. v. Auditing Div. of the Utah State Tax Comm’n, 938 P.2d 266, 268 (Utah 1997).

Utah Code section 59-1-610 does not establish a standard of review for mixed questions of law and fact. See Utah State Tax Comm’n v. Stevenson, 2006 UT 84, ¶ 20, 150 P.3d 521. Tax commission appellate cases state that the standard of review for mixed questions of law and fact varies “‘according to the nature of the legal concept at issue.’” Mandell v. Auditing Div. of the Utah State Tax Comm’n, 2008 UT 34, ¶ 12, 186 P.3d 335 (quoting State v. Levin, 2006 UT 50, ¶ 21, 144 P.3d 1096).

To determine the standard of review for a mixed question of law and fact, [appellate courts] apply a test that considers (1) the complexity of the facts; (2) the degree to which the lower court relied on observable facts that cannot be adequately reflected in the record, such as witness demeanor and appearance; and (3) any policy reasons favoring or disfavoring the exercise of discretion.

Id. (quoting Levin, 2006 UT 50, ¶ 25).

a. Examples of Fact Questions

(1) Whether the commission erred in its appraisal methodology is a question of fact reviewed to determine whether substantial evidence supports the commission’s methodology. See Osborn v. Tax Comm’n, 2009 UT App 222, ¶ 4, 217 P.3d 274, cert. denied, 2009 Utah LEXIS 241 (Utah, Nov. 23, 2009).

(2) Whether company does not use an electrometallurgical process in its production activities. See Atlas Steel, Inc. v. Utah State Tax Comm’n, 2002 UT 112, ¶ 37, 61 P.3d 1053.

(3) Whether company converted material into real property. See Yeargin, Inc. v. Auditing Div. of the Utah State Tax Comm’n, 2001 UT 11, ¶ 32, 20 P.3d 287.

(4) Whether the east side of the property was devoted to agricultural use for the relevant time period. See Marsh v. Tax Comm’n & Bd. of Equalization of Box Elder Cnty., 2009 UT App 44U (mem.) (per curiam).

b. Examples of Agency’s Discretion

(1) The tax commission has an explicit grant of discretion to define “establishment” for purposes of the sales tax exemption. See Atlas Steel, 2002 UT 112, ¶ 14 n.5; Salt Lake Brewing Co. v. Auditing Div. of the Utah State Tax Comm’n, 945 P.2d 691, 694 (Utah 1997).

(2) The tax commission was not granted an explicit grant of discretion to interpret “new or expanding operations.” See Atlas Steel, 2002 UT 112, ¶ 14 n.5.

(3) Whether the commission’s rule defining “normal operating replacements” is a reasonable interpretation of that term as used in Utah Code section 59-12-104(16). See Newspaper Agency Corp. v. Auditing Div. of the Utah State Tax Comm’n, 938 P.2d 266, 268 (Utah 1997) (stating appellate court applies a reasonableness standard to the commission’s conclusions regarding “normal operating replacement [parts]” because statute provides explicit grant of discretion).

c. Example of Mixed Question of Fact and Law

(1) Whether a party is a real property contractor for the purposes of determining sales tax liability. See Yeargin, Inc. v. Auditing Div. of the Utah State Tax Comm’n, 2001 UT 11, ¶ 31, 20 P.3d 287,

(2) Whether a party willfully failed to collect a tax. See Utah State Tax Comm’n v. Stevenson, 2006 UT 84, ¶¶ 8, 22-23, 150 P.3d 521 (citing State v. Pena, 869 P.2d 932, 936 (Utah 1994)); State v. Brake, 2004 UT 95, ¶ 12, 103 P.3d 699.

(3) “Determining the true character and nature of the settlement proceeds presents a mixed question of law and fact[.]” Mandell v. Auditing Div. of Utah State Tax Comm’n, 2008 UT 34, ¶ 17, 186 P.3d 335; see also id. ¶ 20 (concluding that the three Levin factors “weigh in favor of according less deference to the Commission’s application of the law to the facts”).

d. Examples of Questions of Law

(1) Whether the tax commission properly interpreted a statute. See Heber Light & Power Co. v. Utah Pub. Serv. Comm’n, 2010 UT 27, ¶ 6, 231 P.3d 1203 (citing Indus. Commc’ns, Inc. v. Utah State Tax Comm’n, 2000 UT 78, ¶ 11, 12 P.3d 87); MacFarlane v. State Tax Comm’n, 2006 UT 25, ¶ 9, 134 P.3d 1116; Mountain Ranch Estates v. Utah State Tax Comm’n, 2004 UT 86, ¶ 7, 100 P.3d 1206; ExxonMobil Corp. v. Utah State Tax Comm’n, 2003 UT 53, ¶ 10, 86 P.3d 706, abrogated in part by Union Oil Co. v. Utah State Tax Comm’n, 2009 UT 78, ¶ 2, 222 P.3d 1158; Atlas Steel, Inc. v. Utah State Tax Comm’n, 2002 UT 112, ¶ 15, 61 P.3d 1053.

(2) The plain language application of contract provisions is a question of law reviewed for correctness. See Envirocare of Utah, Inc. v. Utah State Tax Comm’n, 2009 UT 1, ¶ 3, 209 P.3d 982.

(3) Whether the district court has subject matter jurisdiction to hear a case. See Wasatch Cnty. v. Tax Comm’n, 2009 UT App 221, ¶ 4, 217 P.3d 270.

(4) Whether the appellate court has jurisdiction to consider an issue. See Bd. of Equalization of Summit Cnty. v. Tax Comm’n, 2004 UT App 283, ¶ 6, 98 P.3d 782; Bluth v. Tax Comm’n, 2001 UT App 138, ¶ 4, 26 P.3d 882.

(5) Whether the term “gas” under the tax code includes nitrogen gas. See Hercules, Inc. v. Utah State Tax Comm’n, 2000 UT App 372, ¶ 6, 21 P.3d 231.

(6) Whether the tax division had authority under Utah statute to lower a school district’s tax rate. See Alpine Sch. Dist. v. State Tax Comm’n, 2000 UT App 319, ¶ 6, 14 P.3d 125.

(7) Whether a tax is constitutional. See Bushco v. Utah State Tax Comm’n, 2009 UT 73, ¶ 8, 225 P.2d 153, cert. denied, Denali, L.L.C. v. Utah State Tax Comm’n, 2010 U.S. LEXIS 8081 (U.S., Oct. 12, 2010).

(8) Whether the tax commission ignored statutory directives when applying an appraisal methodology. See Osborn v. Tax Comm’n, 2009 UT App 222, ¶ 4, 217 P.3d 274, cert. denied, 2009 Utah LEXIS 241 (Utah, Nov. 23, 2009).

(9) Whether party is entitled to litigation expenses under the small business act. See Salt Lake Cnty. Bd. of Equalization v. Tax Commssion, 2004 UT App 472, ¶ 11, 106 P.3d 182.

(10) The tax commission’s interpretation of the tax code is a question of law and appellate courts grant no deference to the commission’s interpretation. See Hercules, Inc. v. Utah State Tax Comm’n, 2000 UT App 372, ¶ 6, 21 P.3d 231.

(11) The tax commission’s interpretation of general law including “case law, constitutional law, or non-agency specific legislative acts” is a correction of error standard with no deference given to the agency’s decision. See Exxon Corp v. Utah State Tax Comm’n, 2010 UT 16, ¶ 6, 228 P.3d 1246 (internal quotation marks omitted); Union Oil Co. v. Tax Comm’n, 2009 UT 78, ¶ 8, 222 P.3d 1158.

(12) Whether the district court’s determination that a tax is constitutional is a legal question. See Bushco v. Utah State Tax Comm’n, 2009 UT 73, ¶ 8, 225 P.2d 153, cert. denied, Denali, L.L.C. v. Utah State Tax Comm’n, 2010 U.S. LEXIS 8081 (U.S., Oct. 2, 2010).

(13) The determination of the meaning of gross receipts under Utah Code section 59-24-102 (5) is a question of law reviewed for correctness. See Envirocare of Utah, Inc. v. Utah State Tax Comm’n, 2009 UT 1, ¶ 3, 201 P.3d 982.

(14) Whether the court of appeals applied the correct standard of review is reviewed for correctness by the Utah Supreme Court. See Utah State Tax Comm’n v. Stevenson, 2006 UT 84, ¶ 19, 150 P.3d 521.

(15) The application of a limitations period presents a question of law reviewed for correctness, giving no deference to the Commission’s determination. See Beaver Cnty. v. Prop. Tax Div. of the Utah State Tax Comm’n, 2006 UT 6, ¶ 16, 128 P.3d 1187.

(16) Whether a settlement agreement violates Utah law. See Alliant Techsystems, Inc. v. Salt Lake Cnty. Bd. of Equalization, 2005 UT 16, ¶ 27, 110 P.3d 691.

(17) Whether a tax applied to a one-way pager service falls under the statutory definition of telephone services. See Indus. Commc’ns, Inc. v. Utah State Tax Comm’n, 2000 UT 78, ¶¶ 1, 11, 12 P.3d 87.

(18) Whether an ambiguity exists in a contract. See Level 3 Commc’ns, LLC v. Pub. Serv. Comm’n, 2007 UT App 127, ¶ 9, 163 P.3d 652.

III. Challenges on Certiorari and upon Certification by Federal Courts

On certiorari, the supreme court reviews the decision of the court of appeals, not the trial court. See Tangren Family Trust v. Tangren, 2008 UT 20, ¶ 10, 182 P.3d 326; J. Pochynok Co. v. Smedsrud, 2005 UT 39, ¶ 8, 116 P.3d 353; Salt Lake Cnty. v. Metro W. Ready Mix, Inc., 2004 UT 23, ¶ 11, 89 P.3d 155; Grand Cnty. v. Rogers, 2002 UT 25, ¶ 6, 44 P.3d 734; Mitchell v. Christensen, 2001 UT 80, ¶ 8, 31 P.3d 572. The court of appeal’s decision is reviewed for correctness, and its conclusions of law are afforded no deference. See State v. Harker, 2010 UT 56, ¶ 8, 240 P.3d 780; Arnold v. Grigsby, 2009 UT 88, ¶ 7, 225 P.3d 192; State v. Casey, 2003 UT 55, ¶ 10, 82 P.3d 1106. When a question has been certified to the supreme court by the federal district court, the supreme court does not “refind the facts;” rather, the court answers only the certified question of law presented. See TruGreen Cos., L.L.C. v. Mower Bros., Inc., 2008 UT 81, ¶ 8, 199 P.3d 929; Burkholz v. Joyce, 972 P.2d 1235, 1236 (Utah 1998). A certified question presents a question of law, which the Utah Supreme Court reviews for correctness without resolving the underlying dispute. See Egbert v. Nissan Motor Co., 2010 UT 8, ¶ 8, 228 P.3d 737; Smith v. Mosier, 2009 UT 3, ¶ 5, 2001 P.3d 1001; Tabor v. Metal Ware Corp., 2007 UT 71, ¶ 5, 168 P.3d 814; In re Kunz, 2004 UT 71, ¶ 6, 99 P.3d 793.

CONCLUSION

Appellate judges often advise both lawyers and laymen that “trial courts search for truth and appellate courts search for error.” This axiom advises that an appeal is not a re-trial. We stated at the outset that trial court determinations for the most part are final and binding regardless of impressive appellate briefs or eloquent oral arguments. Rule 61 of the Utah Rules of Civil Procedure is a mandate to courts – trial and appellate – to not disturb a judgment or a verdict, unless it is clear that refusal to do so would be substantially unjust. Accordingly, the integrity of orders, judgments and verdicts is the rule and reversal is the exception. Thus, while the attorney is focusing on the trial proceedings at hand, the attorney must also keep an eye on preserving and preparing the case for appeal. The best way to succeed on appeal is to prevail at trial.

While writing this edition of the Utah Standards of Appellate Review, we were called upon to consult regarding a case that was struggling to survive in the trial court due to two adverse rulings on motions to dismiss. A sports analogy seemed to best illustrate the status of the proceedings: You are at bat in the ninth inning with two out. You have just hit the ball down the base line and you are arguing with the umpire/judge whether the ball was fair or foul. Realistically, your odds of hitting a home run on appeal are very slim. Moreover, differences between trial practice and appellate process require different attorney skill sets. Typically, trial investigation, preparation, and presentation require aggressive, quick-thinking skills. On the other hand, appellate briefing and oral argument require deliberate research, writing, and oral advocacy skills.

Appellate judges in California were recently surveyed concerning the skills required for effective appellate advocacy. They reported a wide variety of deficiencies in writing styles, proof reading, and use of the trial court record. In civil cases, large numbers of appellate briefs lacked internal consistency with the main messages and failed to serve the best interests of the parties. Briefing in criminal cases rated higher approval. This was attributed to more experienced appellate practitioners handling those appeals. See Charles A. Bird & Webster Burke Kinnaird, Objective Analysis of Advocacy Preferences and Prevalent Methodologies in One California Appellate Court, 4 Journal of Appellate Practice and Process 141, 156 (2002). In Utah, we have also observed that the attorneys who specialize in criminal appeals at the Utah Attorney General’s office and the Salt Lake Legal Defenders are effective appellate advocates. Thus, we surmise that experience and familiarity with the appellate process, including standards of review, are of paramount importance.

Sooner or later, the drafters of Utah appellate briefs and opinions must come to terms with standards of review. They are the keystone to appellate court decision making. These “standards” serve several useful purposes which the drafter should understand and keep in mind. The standards of review: (1) improve the judicial system by balancing power between appellate and trial judges, (2) insure “judicial” economy in use of resources and time, (3) establish a standardized process of review, and (4) provide parties with a basis to evaluate the probability of success on appeal.

Standards of review are imperative and effective tools for outlining and framing the issues on appeal. Due to their significance, thorough research is required to identify, define, and apply the appropriate standard for each issue. The analysis of legal issues by attorney and judge alike must demonstrate fidelity to the standard from beginning to end. Their conclusions and results should confirm that they were reached within the limits imposed by the standard.

In summary, standards of review occupy a singularly vital role in the disposition of cases. They are the essential language of both appellate briefs and appellate opinions. Isolation of the correct standard of review should be the starting point for analyzing any appellate law issue. From the perspective of allocation of judicial power, a review standard allocates the positive authority an appellate court wields in its review function. The appellate court decides the nature and extent of error by the trial court and whether the error attained a reversible level. From the perspective of appellate practitioner, the practioner’s skill in persuading the court to utilize the most favorable standard of review will make all the difference in the outcome.

As we conclude this third edition of Utah Standards of Appellate Review, we extend our thanks to those who contributed their time, talent, and energy to research, writing, and editing behind the scenes. They are: Christine Critchley, Laniece Roberts, Alisha Giles, Sam Sorensen, Rachel Spohn, Ben Lusty, Brent Clayton, Matthew Anderson, and Dorothy Hatch.