STATE OF UTAH, Plaintiff/Petitioner, COOPER JOHN ANTHONY VAN HUIZEN, Defendant/Respondent.

Transcription

1 Case No SC IN THE UTAH SUPREME COURT STATE OF UTAH, Plaintiff/Petitioner, v. COOPER JOHN ANTHONY VAN HUIZEN, Defendant/Respondent. Brief of Petitioner On Writ of Certiorari to the Utah Court of Appeals ELIZABETH HUNT ELIZABETH HUNT LLC 569 Browning Ave. Salt Lake City, UT Counsel for Respondent CHRISTOPHER D. BALLARD (8497) Assistant Solicitor General SEAN D. REYES (7969) Utah Attorney General 160 East 300 South, 6th Floor P.O. Box Salt Lake City, UT Telephone: (801) BRODY E. FLINT Weber County Attorney s Office Counsel for Petitioner

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3 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii STATEMENT OF JURISDICTION... 1 INTRODUCTION... 1 STATEMENT OF THE ISSUES... 3 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES... 4 STATEMENT OF THE CASE... 4 A. Summary of facts B. Summary of proceedings SUMMARY OF ARGUMENT ARGUMENT I. The Court of Appeals Erroneously Failed to Apply the Preservation Rule A. The record does not support the court of appeals reasoning for refusing to apply the preservation rule The record does not show that Defendant lacked the information necessary to raise this issue The record does not show that, given the judge s husband s role, rule 2.11 required the judge to disclose her spousal relationship on the record B. The court of appeals erred by filling in the record gaps with speculation II. The Court of Appeals Erred by Reversing Without a Showing of Prejudice A. Although the Reichert court reversed without proof of actual bias, it did so under circumstances that do not exist here i-

4 B. Excusing a prejudice showing undermines the preservation rule and encourages parties to seek unfair advantage by delaying disqualification motions to get the benefit of reversal on a lower burden of proof C. A violation of a judicial conduct rule alone should not require reversal because the rules do not have the force of law CONCLUSION...41 CERTIFICATE OF COMPLIANCE...42 ADDENDA Addendum A: State v. Van Huizen, 2017 UT App 30, 392 P.3d 933 Addendum B: Utah Code Jud. Conduct R Addendum C: Omnibus Ruling and Order on Defendant s Post- Sentence Motions (R586-97) Addendum D: Docket of Second District Court Case No ii-

5 TABLE OF AUTHORITIES FEDERAL CASES Link v. Wabash R. Co., 370 U.S. 626 (1962) New York v. Hill, 528 U.S. 110 (2000) United States v. Dominguez Benitez, 542 U.S. 74 (2004) STATE CASES Adoption of K.A.S., 2016 UT 55,, 390 P.3d Blaisdell v. City of Rochester, 609 A.2d 388 (N.H. 1992) Dahl v. Dahl, 2015 UT 79, 794 Utah Adv. Rep In re Jacobs, 791 N.W.2d 300 (Minn. App. 2010)... 28, 30 Manning v. State, 2005 UT 61, 122 P.3d Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252 (Utah 1992)... 11, 14, 33, 35, 36, 37 Scott v. United States, 559 A.2d 745, (D.C. 1989) Smith v. Beckman, 683 P.2d 1214 (Colo. App. 1984) State v. Alonzo, 973 P.2d 975 (Utah 1998)... 11, 33, 34 State v. Archambeau, 820 P.2d 920 (Utah App. 1991) State v. Bond, 2015 UT 88, 361 P.3d , 40 State v. Casey, 2003 UT 55, 82 P.3d State v. Gardner, 789 P.2d 273 (Utah 1989)... 33, 34 State v. Griffin, 2016 UT 33, 384 P.3d , 18, 19 -iii-

6 State v. Harrell, 546 N.W.2d 115 (Wis. 1996)... 27, 28, 30 State v. Holgate, 2000 UT 74, 10 P.3d , 18, 38 State v. Houston, 2015 UT 40, 353 P.3d State v. Jimenez, 2012 UT 41, 284 P.3d , 39 State v. Lafferty, 2001 UT 19, 20 P.3d State v. Litherland, 2000 UT 76, 12 P.3d , 31, 32 State v. Logan, 689 P.2d 778 (Kan. 1984) State v. Lopez, 873 P.2d 1127 (Utah 1994) State v. Low, 2008 UT 58, 192 P.3d , 18, 39 State v. Munguia, 2011 UT 5, 253 P.3d , 39, 41 State v. Neeley, 748 P.2d 1091 (Utah 1998)... 11, 33, 34, 40, 41 State v. Nelson-Waggoner, 2004 UT 29, 94 P.3d State v. Ott, 2010 UT 1, 247 P.3d State v. Rushton, 2017 UT 21, 395 P.3d State v. Smith, 635 So. 2d 512 (La. App. 1994) State v. Van Huizen, 2017 UT App 30, 392 P.3d passim Velardo v. Ovitt, 933 A.2d 227 (Vt. 2007) STATE STATUTES Utah Code Ann. 78A-3-102(3)(a) (West 2009) iv-

7 STATE RULES Utah R. App. P. 23B Utah R. Crim. P. 22(e) Utah Code Jud. Conduct R , 23, 27, 29, 30, 31 -v-

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9 Case No SC IN THE UTAH SUPREME COURT STATE OF UTAH, Plaintiff/Petitioner, v. COOPER JOHN ANTHONY VAN HUIZEN, Defendant/Respondent. Brief of Petitioner STATEMENT OF JURISDICTION This case is before the Court on a writ of certiorari to the Utah Court of Appeals in State v. Van Huizen, 2017 UT App 30, 392 P.3d 933 (Addendum A). This Court has jurisdiction under Utah Code Ann. 78A-3-102(3)(a) (West 2009). INTRODUCTION Defendant did not move to disqualify the juvenile court judge who bound him over to district court under the Serious Youth Offender Act, even though the judge s husband was the chief criminal deputy in the office that was prosecuting him. Rather, Defendant argued on appeal from his conviction and sentence that the judge plainly erred by not sua sponte recusing herself. Despite Defendant s failure to preserve this issue, the court

10 of appeals refused to apply the plain error standard because it held that Defendant did not have the opportunity to raise this issue below. The court held that Defendant lacked this opportunity because the juvenile court did not disclose her spouse s employment on the record. But the record did not foreclose the possibility that Defendant s attorney knew who the judge s spouse was. Nor did it foreclose the possibility that the juvenile court knew that Defendant s attorney was aware of who her husband was, and therefore had no reason to disclose her spousal relationship. The court of appeals reversed because it held that the judge s husband s position created an appearance of impropriety that the judge was required to disclose on the record. The court of appeals assumed, contrary to the record, that he had some involvement this case. Based on this Court s opinion in Regional Sales Agency, Inc. v. Reichert, the court of appeals also refused to require Defendant to show prejudice. The court of appeals reversed despite recognizing that there was no indication that the juvenile court was actually biased. This Court should reverse because the court of appeals opinion conflicts with this Court s precedent that the preservation rule applies to all claims, and that appellants who raise unpreserved claims must demonstrate -2-

11 an applicable exception to the preservation rule, including a showing of actual prejudice. Additionally, Reichert is distinguishable because the critical circumstances that existed there are not present here: (1) the absence of an opportunity to object to the judge s participation; and (2) a plain violation of the disqualification rule. Finally, the court of appeals opinion encourages parties to seek unfair advantage by withholding claims of judicial bias so they will not have to show actual prejudice on appeal. STATEMENT OF THE ISSUES This Court granted certiorari on the following issues: 1. Whether the Court of Appeals erred in concluding that Respondent was not required to demonstrate preservation of his appellate claim that the juvenile court judge should have disqualified herself? 2. Whether the Court of Appeals erred in concluding that a litigant is not required to show prejudice arising from an appearance of bias if a judge fails to disclose the facts generating the appearance of bias? Standard of Review. On certiorari, this Court reviews the court of appeals decision for correctness. State v. Rushton, 2017 UT 21, 9, 395 P.3d

12 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES Addendum B contains: Utah R. Jud. Conduct R A. Summary of facts. STATEMENT OF THE CASE Defendant and Joshua Dutson were good friends. R161, Dutson introduced Defendant to Wesley Brown, Dexter Skinner, and Tomek Perkins. R263,266,282-88,363. Brown, Skinner, and Perkins were all 18 years old; Dutson was 17; Defendant was 16. R160-63,165, Defendant and his friends had run out of marijuana and planned to get more by robbing Christian Davidson. R237, Wesley Brown had previously lived with Davidson and knew that he would have marijuana. R247-48, Brown planned the robbery and the others, including Defendant, agreed to the plan. R282-83,288, The group first drove to Defendant s house where Defendant took two of his father s guns. R237,295. They then drove to Davidson s home. R237, An unbound copy of the juvenile court preliminary hearing transcript is R The record contains a separate bound copy, but that copy did not receive a record page number. The State cites to the unbound, recordpaginated copy. -4-

13 Davidson was expecting a visit from friends when he heard a loud knock. R He opened the door and found a stranger holding a large revolver. R247-49,251. Davidson tried to close the door, but the intruder put his foot in the door and said, Open the door, I m going to pop (inaudible). R247,260. The intruder added, We re coming in, and commanded Davidson to go downstairs. R247. The armed intruder was Dexter Skinner. R251. Brown, Dutson, and Defendant followed Skinner into Davidson s home while Perkins waited outside in a car. R276,278. The intruders were armed with the two handguns Defendant had supplied and an air-soft gun that looked like a real handgun. R283-84, One of the intruders asked who else was home. R248. Davidson replied that his mother was, but did not mention his friend Ryan Golding who was also there. R248,264. Hearing a noise in the laundry room, Skinner tucked his pistol into the waistband of his pants. R248,251. But when Golding, rather Davidson s mother, emerged from the laundry room, Skinner lifted his shirt to show Golding the butt of the gun. R248, Apparently confused, Golding remarked that the gun was cool, and reached to touch it, but Davidson warned Golding not to. R248, Skinner then pulled the gun out of his waistband, pointed it at the ground, and remarked, Yeah, man, his body is on this. R

14 Skinner then quickly pointed the gun at Davidson s face and demanded that he give him everything. R248,252. Shocked, Davidson laughed and said, Seriously, over pot? R252. Brown and a third intruder then drew their guns. R252-53,310. The evidence conflicted on who held the third gun. Davidson testified that Defendant did. R253. And Dutson wrote in his initial police statement that Defendant had brandished a gun. R But in his police interview, Dutson said that he, Brown, and Skinner were the only ones who held guns and that Defendant instead held a switchblade knife. R284,287. Defendant denied holding a gun or knife during the robbery. R299. With their guns drawn, the intruders told Davidson to get everything he had and lay on the floor. R254. When Davidson said he only had the tiny bag of weed on the table, Skinner remarked that he had seen Davidson slip a larger bag of marijuana into his pocket. R254. Davidson surrendered the larger bag. R254. Skinner then directed someone to take Davidson s wallet and phone. R254. Davidson testified that he did not see who took them. R During an earlier photo lineup, however, Davidson identified Defendant as the person who took them. R

15 Ryan Golding, Davidson s friend, told police that the intruders ordered him and Davidson to the ground and stole their phones and money. R Golding also reported that the intruders threatened to kill him and Davidson if they tried to interfere or report the crimes. R265. One of the intruders told Davidson to stay on the floor and Brown, who had previously lived with Davidson, said he was going to pay Davidson s mother a visit. R255. The others rushed up the stairs and out of the house. R255. Meanwhile, Brown pointed his gun at Davidson, hesitated, and mentioned an earlier altercation between the two when they had briefly lived together. R255. Davidson feared for his life. R255. Brown ultimately decided to end the confrontation and flee. R255. Defendant and his friends shared the stolen marijuana. R288. B. Summary of proceedings. Juvenile- and Trial-Court Proceedings After analyzing the factors in the Serious Youth Offender Act, the juvenile court bound Defendant over for trial in district court because of his age and the seriousness of his crimes. State v. Van Huizen, 2017 UT App 30, 4, 5-8, 392 P.3d 933. Defendant did not timely appeal the bindover order. Id. 8. Defendant pled guilty to two reduced counts of robbery and was -7-

16 sentenced to concurrent prison terms of one to fifteen years. Id. 9. He was paroled just six months later. Id. While serving his prison sentence, Defendant obtained new counsel his current appellate counsel and filed a notice of appeal from the district court s judgment and sentence. R545. Defendant also filed several postsentencing motions in the district court challenging his bindover, his guilty plea, and his sentence. R82-91,100-12, In his motion to quash the bindover, Defendant argued, among other things, that the juvenile court judge should have sua sponte recused herself because of her marriage to the chief criminal deputy. R Defendant argued that the judge s failure to recuse herself created significant constitutional and structural errors. R428. Defendant supported this motion with affidavits from himself and his parents declaring that they did not know who the judge s husband was and that if they had known, they would have requested a different judge. R Defendant provided no affidavit, however, from his counsel in the juvenile proceedings. The prosecutor responded that the judge s husband had nothing to do with this case and how it was handled. R505. He explained that the judge s husband does not supervise the attorney s [sic] in juvenile court; he does not -8-

17 screen cases in juvenile court and is not involved in juvenile court matters, those responsibilities are under the purview of other attorneys. R505. The district court denied Defendant s post-sentencing motions. R (Addendum C is a copy of this order). It denied Defendant s motion to quash the bindover under the Serious Youth Offender Act because it concluded that it lacked jurisdiction to consider the validity of that final appealable order. R The district court did not reach the merits of that motion. R Defendant filed a separate notice of appeal from the denial of his post-sentencing motions. R599. Together with his other post-sentence motions, Defendant also filed a motion under Manning v. State, 2005 UT 61, 122 P.3d 628, to reinstate his time to appeal from the juvenile court s bindover order. R93-99; Van Huizen, 2017 UT App 30, 10. The State stipulated to the Manning motion and the district court reinstated the time for appeal. Van Huizen, 2017 UT App 30, 10. Defendant then filed a notice of appeal from the juvenile court s bindover order. R601. Defendant therefore filed three separate notices of appeal in all. The court of appeals consolidated the three appeals into one the original appeal from the district court s judgment and sentence. R

18 Court of Appeals Decision Defendant argued on appeal that the juvenile court judge plainly erred by not sua sponte recusing herself because she was married to the chief criminal deputy in the office that prosecuted him. Br.Aplt.44-52; Van Huizen, 2017 UT App 30, 13, 50 n.15. Although the court of appeals recognized that Defendant did not preserved this issue, it refused to apply the plain error standard because it held that Defendant did not have the opportunity to raise the issue where he did not have knowledge of the relevant facts at the time of the bindover decision. Id. 50, n.15. The court assumed that Defendant lacked this knowledge because the judge did not disclose her spousal relationship to the parties on the record, and Defendant filed a sworn declaration stating that he would have requested a different judge had he known of relationship. Id. 37 & n.11, 12. The court of appeals surmised that the juvenile court likely presumed that Defendant s counsel was aware of the relationship. Id. 37 n.11. The court of appeals then held that the juvenile court s spousal relationship created an appearance of partiality because her husband was within the chain of command for this case. Id. 46. The court reached this conclusion even though it recognized that the record does not reveal the specific nature of the relationship between the Chief Criminal Deputy and -10-

19 the deputy county attorney who actually handled [Defendant s] case. Id. 38. The court further recognized that the only information contained in the record on that point declared that the Chief Criminal Deputy does not supervise the attorneys in juvenile court; he does not screen cases in juvenile court and is not involved in juvenile court matters, those responsibilities are under the purview of other attorneys. Id. Given the lack of record evidence on this unpreserved issue, the court of appeals instead based its conclusion about the chief criminal deputy s involvement in this case on what the record suggests, what seems unlikely, and what it was reasonable to conclude from what little record was available. Id On the issue of prejudice, the court of appeals recognized that this Court s precedent required a defendant who alleges that his judge was biased to demonstrate not just an appearance of bias, but actual bias to obtain a reversal. Id. 55 (citing State v. Neeley, 748 P.2d 1091, 1094 (Utah 1998), and State v. Alonzo, 973 P.2d 975, 979 (Utah 1998)). But the court of appeals also observed that in Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252 (Utah 1992), this Court reversed based on a judge s appearance of impropriety without requiring the appellant to show that the judge was actually biased. Van Huizen, 2017 UT App 30, 52. The court of appeals held that Reichert controlled and therefore reversed, even though it recognized that its -11-

20 thorough review of the record provided no reason to think the Juvenile Judge was actually biased against Defendant. Id. 22, 59, 64. SUMMARY OF ARGUMENT I. This Court has repeatedly held that the preservation rule applies to all claims. But the court of appeals refused to apply the preservation rule to Defendant s judicial bias claim because it held that Defendant was unaware of the basis for moving to disqualify the juvenile court judge. The court of appeals concluded that (1) the record showed that Defendant could not have objected because affidavits from Defendant and his parents showed that they did not know who the judge s husband was, and (2) the nature of the judge s husband s position as chief criminal deputy in the prosecutor s office required the judge to disclose her spousal relationship on the record. The record does not support the court of appeals conclusions. Because there is no affidavit in the record from Defendant s counsel, the record does not foreclose the possibility that he did know who the judge s husband was. Nor does the record foreclose the possibility that the juvenile judge knew that counsel was aware of who her husband was, and therefore did not need to disclose that information on the record. Moreover, the only record about the judge s husband s responsibilities showed that he most likely would not have been involved in this case. This -12-

21 suggests that his office had taken steps to screen him from all juvenile cases in order to avoid the very problem that the court of appeals speculated existed here. The record therefore does not show that the judge s marriage created an appearance of partiality that she was required to disclose on the record. The court of appeals opposite conclusion is based on a misreading of the existing record and speculation about the missing record. The court of appeals erroneously concluded that the record shows that the judge s husband had some involvement in this case because he requested copies of documents on the same day his wife bound Defendant over to adult court. On the contrary, the record demonstrates that the judge s husband did not request copies of documents until after Defendant was sentenced, and that he requested the copies only in response to current defense counsel s request. Defendant s current counsel did not appear until after Defendant had pled guilty and was sentenced. The only other support for the court of appeals conclusion is its own speculation about the judge s husband s involvement in this case. All of the record evidence on this point showed that her husband was not involved. Rather than speculating about what the missing record might have shown, the court of appeals was required to construe any record gaps against -13-

22 Defendant and presume the regularity of the proceedings below. Because the record does not support the court of appeals justifications for refusing to apply the preservation rule, this Court should reverse. II. The court of appeals also erred by not requiring Defendant to show prejudice that is, that the juvenile judge was actually biased. Defendant could not have made this showing because, as the court of appeals recognized, a thorough review of the record revealed no reason to think that the judge was biased. The court of appeals refused to require Defendant to show prejudice because it believed that this Court s decision in Regional Sales Agency, Inc. v. Reichert controlled. There, this Court reversed a court of appeals decision because one of the judges on the panel was related to partners in the same law firm as one of the attorneys on the case. This Court did not conduct a prejudice analysis. But Defendant here was required to show prejudice because this claim was unpreserved and could only be reviewed under the plain error, exceptional circumstances, or ineffective assistance of counsel standards. Each of those standards require a showing of prejudice. In any event, Reichert is distinguishable. The party in Reichert did not learn of the basis for disqualification until after the court of appeals decided -14-

23 the case. But the record here does not foreclose the possibility that Defendant s counsel knew of this disqualification issue and could have raised it below. And in any event, Defendant s substitute counsel learned about the issue while the case was still in the trial court. Defendant therefore had the opportunity to develop the necessary record to prove prejudice. Reichert is also distinguishable because this record does not show a plain violation of the ethical rule. Moreover, excusing the prejudice requirement for unpreserved judicial bias claims encourages parties to seek unfair advantage by withholding their claims when it is not obvious that the party knows of the basis of the claim. When a party preserves a judicial bias claim by raising it in the trial court, he must show actual bias to obtain a reversal on appeal. But under Reichert and the court of appeals opinion here, a party who raises a judicial bias claim for the first time on appeal does not have to show prejudice. This encourages parties to seek unfair advantage by withholding judicial bias claims and thereby obtaining a more favorable standard of review on appeal. This undermines the goals of the preservation rule. Additionally, a violation of the code of judicial conduct, without a showing of actual bias, should not require reversal. That code governs only judicial conduct. It does not define the parameters of a defendant s right to a -15-

24 fair trial. An appellate court should not reverse a criminal conviction absent a showing that the judge who presided was actually biased. ARGUMENT The court of appeals reversed this entire criminal proceeding because it held that the juvenile judge s marriage to the chief criminal deputy of the office that was prosecuting Defendant created an appearance of impropriety. State v. Van Huizen, 2017 UT App 30, The court reversed even though the issue was unpreserved, Defendant did not demonstrate that any exception to the preservation rule applied, and any error was ultimately harmless. Id. 36, 50 & n.15, And it reversed even though the existing record establishes that the judge s husband had no official supervisory duties over this or any other juvenile case. The court of appeals reached this result because it refused to apply the preservation rule and to require Defendant to prove actual prejudice. The court of appeals explained its reasons for these refusals, but the record does not support them. And the precedent that the court of appeals relied on to excuse a prejudice showing is distinguishable from the circumstances here. The court of appeals refusal to require a prejudice showing also encourages parties to seek unfair advantage by withholding judicial bias claims when it -16-

25 is not clear that the party knew of the basis for the claim. This Court should therefore reverse. I. The Court of Appeals Erroneously Failed to Apply the Preservation Rule It is well-established that the preservation rule applies to all appellate claims with a few exceptions that are not relevant here. 2 State v. Griffin, 2016 UT 33, 20, 384 P.3d 186; State v. Bond, 2015 UT 88, 45, 361 P.3d 104; State v. Holgate, 2000 UT 74, 11, 10 P.3d 346. When a party fails to preserve an issue for appeal, [this Court] will address the issue only if (1) the appellant establishes that the district court committed plain error, (2) exceptional circumstances exist, or (3) in some situations, if the appellant raises a claim of ineffective assistance of counsel in failing to preserve the issue. State v. Low, 2008 UT 58, 19, 192 P.3d 867, 874. This preservation rule serves two important policies. Holgate, 2000 UT 74, 11. First, it promotes judicial economy by giving the trial court the first opportunity to address and, if 2 Those exceptions include this Court s prerogative to correct sua sponte manifest and prejudicial errors not objected at trial or assigned on appeal from a death sentence. State v. Lafferty, 2001 UT 19, 96, 20 P.3d 342. Additionally, the prior version of rule 22(e), Utah Rules of Criminal Procedure, allowed an appellate court to consider unpreserved challenges that a sentence was unconstitutional on its face. See State v. Houston, 2015 UT 40, 18, 20, 353 P.3d

26 necessary, correct any error. Id. Second, it prevents a defendant from forgoing an objection with the strategy of enhancing the defendant s chances of acquittal and then, if that strategy fails, claiming on appeal that the Court should reverse. Id. (quotation marks, brackets, ellipsis, and citation omitted). To serve these policies the preservation rule applies to every claim, including constitutional questions. Id. (emphasis added). The preservation rule also guards against unjustified reversals on appeal. Requiring that parties first raise errors in the trial court ensures that either (1) the trial court will correct the error itself and avoid the need for appeal, or (2) the record will show how the trial court prejudicially erred, either plainly or otherwise. When an issue is not raised in the trial court, the preservation rule ensures that an appellate court will reverse only if the error is both plain and prejudicial. 3 See State v. Griffin, 2016 UT 33, 17, 384 P.3d 186 (plain error requires a showing of obvious, prejudicial error). 3 In criminal cases, the defendant has the additional option of demonstrating that his counsel was ineffective for not raising the issue. But an ineffectiveness claim has its own mechanism under rule 23B, Utah Rules of Appellate Procedure, to create a record demonstrating prejudicial error. See Low, 2008 UT 58, 19; State v. Litherland, 2000 UT 76, 14-17, 12 P.3d 92. Defendant did not argue in the court of appeals that his counsel was ineffective for not moving to disqualify the juvenile court judge. Br.Aplt

27 The exceptional-circumstances doctrine provides another means for reviewing unpreserved claims. See id. But like plain error, the exceptionalcircumstances doctrine requires that a reversal be based on prejudicial error. See State v. Nelson-Waggoner, 2004 UT 29, 23, 94 P.3d 186. The doctrine allows a court to review an unpreserved claim when exceptional circumstances, i.e. rare procedural anomalies, prevent a party from properly preserving an issue. See Adoption of K.A.S., 2016 UT 55, 19-21, 390 P.3d 278 (exceptional circumstances existed where appointed counsel refused to make an argument and party was barred from raising argument pro se); Holgate, 2004 UT 29, 23 (exceptional circumstances must justify [a party s] failure to preserve his claim); State v. Lopez, 873 P.2d 1127, 1134 n.2 (Utah 1994) (change in law or settled interpretation of law colored failure to raise issue at trial). But even when exceptional circumstances prevent a party from properly preserving a claim, to obtain a reversal, the party must still demonstrate that the error was prejudicial. The exceptional-circumstances doctrine exists to avoid manifest injustice. See State v. Munguia, 2011 UT 5, 11, 253 P.3d 1082; Nelson-Waggoner, 2004 UT 29, 23; State v. Archambeau, 820 P.2d 920, 923 (Utah App. 1991). Manifest injustice is synonymous with the plain error standard. State v. Jimenez, 2012 UT 41, 20, 284 P.3d 640; State -19-

28 v. Casey, 2003 UT 55, 40, 82 P.3d A harmless error causes no injustice. Therefore, like the plain error and ineffective assistance of counsel standards, the exceptional-circumstances doctrine also requires a party to show that an unpreserved error was prejudicial. The preservation rule therefore ensures that an appellate court will reverse only when the record demonstrates that prejudicial error occurred. The court of appeals erred here because, by failing to apply the preservation rule, it reversed where no error may have occurred at all, and were any error that did occur was, at worst, harmless. A. The record does not support the court of appeals reasoning for refusing to apply the preservation rule. The court of appeals relied on two grounds to justify its refusal to apply the preservation rule. It first held that the preservation rule assumes that the appealing party had the opportunity to object in the first instance and that the record indicates that [Defendant] did not have such an opportunity. Van Huizen, 2017 UT App 30, 50 n.15. Second, it held that given the juvenile judge s husband s position, rule 2.11 of the Utah Code of Judicial Conduct required the judge to disclose her husband s position and obtain an on-the-record waiver of any disqualification issue. Id. 37, 48, 50 n.15. The court essentially held that it was the judge s responsibility to raise -20-

29 this issue, not Defendant s. But the record does not support either justification for refusing to apply the preservation rule. 1. The record does not show that Defendant lacked the information necessary to raise this issue. The record does not support the court of appeals conclusion that Defendant could not have preserved this issue because he did not have knowledge of the relevant facts at the time of the bindover decision. Van Huizen, 2017 UT App 30, 50 n.15. Defendant and his parents did file affidavits stating that they did not know who the judge s husband was. R But the record is silent as to what Defendant s counsel knew. A defendant is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. New York v. Hill, 528 U.S. 110, 115 (2000) (quoting Link v. Wabash R. Co., 370 U.S. 626, 634 (1962)). Thus, if counsel knew who the judge s husband was, then Defendant also had knowledge of the relevant facts and could have preserved this issue. Van Huizen, 2017 UT App 30, 50 n.15. Because the record does not show that Defendant lacked the opportunity to object, the court of appeals erroneously concluded otherwise. See id. -21-

30 2. The record does not show that, given the judge s husband s role, rule 2.11 required the judge to disclose her spousal relationship on the record. Nor does the record support the court of appeals conclusion that rule 2.11 required the juvenile court to disclose her husband s position and obtain a waiver of any disqualification issue on the record. In fact, the only record regarding the judge s husband s duties at the Weber County Attorney s Office shows that he was not involved in this case. Rule 2.11 of the Utah Code of Judicial Conduct requires disqualifying a judge in any proceeding in which the judge s impartiality might reasonably be questioned. Utah Code Jud. Conduct R. 2.11(A). For example, disqualification is required when the judge has a personal bias or prejudice concerning a party or a party s lawyer, or personal knowledge of the facts that are in dispute. Id. R. 2.11(A)(1). Disqualification is also required when the judge, the judge s spouse, or the judge s relative as defined by the rule is involved in, or has an interest in the proceeding. Id. R. 211(A)(2). In relevant part, the rule requires disqualification when: The judge knows that the judge, the judge s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is: (a) party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; -22-

31 (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding. Id. When any of these circumstances arise, the rule gives the judge discretion to disclose the basis for disqualification and obtain a waiver from the parties and their lawyers. Id. R. 2.11(C). The waiver must be on the record. Id. A comment to the rule encourages judges to disclose on the record any information relating to a potential disqualification issue. Id. R cmt. 5. The comment states that [a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification. Id. Based on these provisions, the court of appeals held that the judge was required to disclose her spousal relationship on the record because her husband fell within the class of persons who can create an appearance of partiality. Van Huizen, 2017 UT App 30, 48; see also 46. But the record does not support that conclusion. In fact, the existing record shows that the judge s spouse was not in that class of persons that would require the judge -23-

32 to recuse herself. The prosecutor said that the judge s spouse was not involved in the case and that all juvenile cases were outside his chain of command. And in any event, the record is silent on whether counsel already knew who the judge s husband was, or whether the judge knew counsel was aware of who her husband was. The record does not show that the judge s husband s role necessarily created an appearance of impropriety that the judge was required to disclose. Because this issue was not raised below, there is little evidence regarding the judge s husband s involvement in this case. The only record evidence on this point shows that the judge s husband was not involved in this case while it was pending. In responding to Defendant s post-sentencing assertion that the judge s participation amounted to structural error, the prosecutor acknowledged that the judge is the spouse of Mr. Gary Heward, Chief Criminal Deputy of the Weber County Attorney s Office. R504. But the prosecutor then explained that Mr. Heward had nothing to do with this case and how it was handled. R505. He continued, Mr. Heward does not supervise the attorney s [sic] in juvenile court; he does not screen cases in juvenile court and is not involved in juvenile court matters, those responsibilities are under the purview of other attorneys. R

33 Although the court of appeals acknowledged this evidence, Van Huizen, 2017 UT App 30, 38-39, it discounted it based entirely on a misreading of the record and speculation, id. 37, The court of appeals misread the record when it concluded that Mr. Heward had at least some involvement in [Defendant s] case once he was bound over to the district court. Id. 37. The court of appeals based this conclusion on its understanding that Mr. Heward responded to communications from [Defendant s] current counsel and that the district court s docket shows that [he] requested digital copies of several proceedings, on behalf of either himself or a colleague, on the same day that his spouse signed the bindover order. Id. 37. Mr. Heward did respond to a request from Defendant s current counsel for copies of documents. But that occurred only after Defendant had been sentenced and current counsel had substituted in. Id. 37. The court of appeals conclusion was based on a misreading of the district court docket. The docket shows that Mr. Heward did not request copies of documents in this case until 21 May 2014, two weeks after Defendant was sentenced on 7 May See Docket for Second District Case No at 8 (attached as Addendum D); R In fact, Defendant conceded in his court of appeals brief that Mr. Heward requested copies of -25-

34 documents only in response to his current counsel s post-sentencing requests for information. Br.Aplt ( The record also reflects that on May 21, 2014, after present counsel began challenging [Defendant s] convictions, the judge s husband ordered a recording of one of the hearings and a copy of the final commitment. ). Contrary to the court of appeals understanding, the juvenile court signed the bindover order on 21 January 2014, four months before Mr. Heward responded to current counsel s document requests. JR Thus, the court of appeals conclusion that Mr. Heward had some involvement in this case is based in part on a misreading of the record. The only other support for the court of appeals conclusion is its own speculation. Rather than confining its review to the existing record, the court of appeals speculated about what the record might have shown. It speculated that the criminal nature of Defendant s case suggests that the attorney handling the matter in juvenile court interacted with the Chief Criminal Deputy s [sic] at some level, even if the chain of command had an additional supervisory layer while the case was in juvenile court. Van Huizen, 2017 UT App 30, 39 (emphasis added). The court further speculated about what the scant record seems to confirm, and what seems unlikely about Mr. 4 References to JR are to the juvenile court record. -26-

35 Heward s role. Id. 40. After considering its misreading of the existing record and its speculation about the nonexistent record, the court of appeals concluded that it is reasonable to conclude that [Mr. Heward] was in the chain of command over the attorney handling the juvenile side of the case, even if he did not supervise the juvenile portion directly. Id. (emphasis added). But as explained, nothing in the record supports this conclusion. Rather, the only record evidence refutes it. R What the record does show is that Mr. Heward s role did not plainly require his wife to recuse herself under rule Mr. Heward was not a party to the proceeding. Utah Code Jud. Conduct R. 2.11(A)(2)(a). Nor was it clear that he was an officer, director, general partner, managing member, or trustee of a party. See id. The terms officer, director, general partner, managing member, or trustee of a party suggest someone who has a direct interest in the litigation because he runs the private entity or corporation that is a party and has a financial stake in the entity s success. But a prosecutor has no such interest in a criminal case. See State v. Harrell, 546 N.W.2d 115, (Wis. 1996). As the Wisconsin Supreme Court has held, a judge s marriage to a prosecutor in the office that is prosecuting a defendant before the judge does not automatically require that judge to recuse herself. Id. The Harrell court -27-

36 observed that the special characteristics of government attorneys make it unlikely that a judge s relationship with one would affect his or her impartiality. Id. at 118. Prosecutors do not have the same type of interest in the outcome of a trial as does a member of a private law firm because a prosecutor has no financial interest in the outcome of the case and any reputational interest without the financial interest, is not enough to create [even] an appearance of partiality [in the judge]. Id. (quoting State v. Logan, 689 P.2d 778, 785 (Kan. 1984)) (brackets in original). The court found it preposterous to think that a judge would have an increased propensity to convict criminals because she was married to a prosecutor. Id. (quotation and citation omitted). Similarly, the Minnesota Court of Appeals refused to hold that the institutional loyalty of a prosecutor-spouse could reasonably appear to affect the impartiality of the judge-spouse. In re Jacobs, 791 N.W.2d 300, 302 (Minn. App. 2010). In contrast, the Colorado Court of Appeals held in Smith v. Beckman, 683 P.2d 1214, 1215 (Colo. App. 1984), that a judge who was married to a prosecutor was required to recuse himself based solely on his spousal relationship. But the reasoning of Beckman, a 1984 decision, runs counter to that of the great majority of subsequent cases. Jacobs, 791 N.W.2d at 302. As the Utah Court of Appeals agreed here, Beckman is a relative outlier in the -28-

37 caselaw governing when a judge must disqualify based on a spousal relationship with an attorney in the relevant prosecuting office. Van Huizen, 2017 UT App 30, 32. Because a prosecutor has no direct interest in the outcome of a criminal proceeding, he does not plainly qualify as an officer, director, general partner, managing member, or trustee of a party. See Utah Code Jud. Conduct R. 2.11(A)(2)(a). In fact, the court of appeals agreed that rule 2.11(A)(2)(a) s language did not plainly apply here. Van Huizen, 2017 UT App 30, 27. That provision therefore did not plainly require the judge to disqualify herself or disclose her spousal relationship on the record. Nor did the other provisions of the rule. Mr. Heward was not plainly acting as a lawyer in this proceeding under rule 2.11(A)(2)(b). On the contrary, the only record on this point established that he had nothing to do with this case and how it was handled because he did not participate in any juvenile cases. R505. This suggests that the Weber County Attorney s Office had taken steps to screen Mr. Heward from any involvement in this case and all other juvenile cases. As the court of appeals recognized, thoughtful screening procedures in a public office could sufficiently protect a judge married to a prosecutor from the appearance of partiality. Van Huizen, 2017 UT App 30, 48. That is what the record shows happened here. -29-

38 Finally, for these same reasons, rule 2.11(A)(2)(c), did not plainly apply. As a prosecutor who had nothing to do with this case, Mr. Heward did not plainly have an interest in the proceeding that would have required his wife to recuse herself. See Utah Code Jud. Conduct R. 2.11(A)(2)(c) (requiring recusal when a judge s relative has more than a de minimis interest that could be substantially affected by the proceeding ). As explained, a prosecutor-spouse has no pecuniary interest in a prosecution and his mere reputational interest is insufficient to create even an appearance of partiality in a judge-spouse. Harrell, 546 N.W.2d at 118 (quotation and citation omitted); Jacobs, 791 N.W.2d at 302 (holding that the institutional loyalty of a prosecutor-spouse could not reasonably appear to affect the impartiality of the judge-spouse). In any event, and as also explained, the record does not foreclose the possibility that Defendant s counsel knew who the judge s husband was. Nor does it foreclose the possibility that the judge knew that Defendant s counsel had that knowledge. If that were the case and the record does not show otherwise then there was no reason for the judge to disclose on the record what counsel already knew. Nothing in rule 2.11 requires a court to disclose an appearance of impropriety that counsel is already aware of. The record -30-

39 therefore does not support the court of appeals conclusion that rule 2.11 required the judge to disclose her spousal relationship on the record. In short, the record does not establish that the judge s husband s position required her to either recuse herself or disclose her spousal relationship on the record and obtain a waiver before proceeding. Nor does the record foreclose the possibility that the judge here may have known that Defendant s counsel already knew who her spouse was. The court of appeals therefore erroneously held, based on this record, that the judge violated rule 2.11 by not disclosing her spousal relationship on the record. B. The court of appeals erred by filling in the record gaps with speculation. The court of appeals erroneously relied on speculation, rather than record evidence, to support its decision. Appellants bear the burden of proof with respect to their appeals, including the burdens attending the preservation and presentation of the record. State v. Litherland, 2000 UT 76, 17, 12 P.3d 92. If an appellant fails to provide an adequate record on appeal, this Court must assume the regularity of the proceedings below. Id. 11 (quotations and citations omitted). This includes presuming that the judge is qualified. See Dahl v. Dahl, 2015 UT 79, 49, 794 Utah Adv. Rep. 5 ( Judges are presumed to be qualified and a party alleging bias on the part of the judge has the burden of demonstrating that the judge is not qualified. ). -31-

40 Rather than assuming an appearance of impropriety here, the court of appeals was required to presume the regularity of the proceedings absent a record showing otherwise. See Litherland, 2000 UT 76, 17. The court of appeals should not have discounted the likelihood that the judge may have assumed that the litigants, or more probably their lawyers, were generally aware of who her husband was. Van Huizen, 2017 UT App 30, 37 n.11. Rather, where the record was silent on the matter, the court of appeals was required to presume that the judge did not disclose her spousal relationship on the record either because there was no reason to disclose given screening procedures already in place in the Weber County Attorney s Office, or because she knew that Defendant s counsel was already aware of who her husband was. See Litherland, 2000 UT 76, 17. The absence of a complete record here is fatal to Defendant s position and the court of appeals opinion. II. The Court of Appeals Erred by Reversing Without a Showing of Prejudice The court of appeals also erroneously refused to require Defendant to prove prejudice. The court of appeals held that its thorough review of the record gave it no reason to think the Juvenile Judge was actually biased against [Defendant]. Van Huizen, 2017 UT App 30, 22. The court of appeals nevertheless reversed because it held that given this Court s opinion in -32-

41 Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252 (Utah 1992), Defendant did not have to show prejudice. See Van Huizen, 2017 UT App 30, 52, But Reichert is distinguishable for two reasons. First, the party there had no opportunity to raise the disqualification issue before the affected judge entered her ruling. Second, the judge s participation in Reichert plainly violated the code of judicial conduct. The court of appeals also erred by excusing the prejudice requirement for unpreserved judicial bias claims because that approach makes it easier for a party to obtain a reversal for unpreserved claims than for preserved claims. This encourages parties to seek unfair advantage by withholding judicial bias claims. The court of appeals opinion therefore undermines the purposes of the preservation rule. Additionally, a violation of the judicial conduct rules alone should not be a basis for reversal, because those rules govern only judicial conduct, not a defendant s right to a fair trial. A. Although the Reichert court reversed without proof of actual bias, it did so under circumstances that do not exist here. The court of appeals recognized that this Court s precedent generally requires a Defendant to prove prejudice that his judge was actually biased to obtain reversal based on a judge s failure to disqualify herself. See Van Huizen, 2017 UT App 30, 51, 392 P.3d 933 (citing State v. Neeley, 748 P.2d 1091, 1094 (Utah 1988); State v. Gardner, 789 P.2d 273, 278 (Utah 1989); State v. -33-

42 Alonzo, 973 P.2d 975, 979 (Utah 1998)). The Neeley court held that when a defendant moves to disqualify a judge and the judge complies with the required procedures for handling the motion, a failure to disqualify does not constitute reversible error absent a showing of actual bias or an abuse of discretion. 748 P.2d at Relying on Neeley, the Gardner court held that a judge s [f]ailure to recuse even where he should have, based on the appearance of possible bias or prejudice, is subject to harmless error analysis. 789 P.2d at 278. A defendant must show actual prejudice because while the Code of Judicial Conduct establishes standards that, if violated, may subject a judge to discipline it does not establish the parameters of a defendant s constitutional right to a fair trial. Id. (citing Neeley, 748 P.2d at 1094). The trial court in Alonzo had made comments outside the jury s presence that created an appearance of bias. 973 P.2d at 979. But this Court nevertheless affirmed because the comments alone were insufficient to establish that the defendant suffered actual prejudice. Id. The court of appeals distinguished those cases on two grounds. Van Huizen, 2017 UT App 30, First, it reasoned that the defendants in each of those cases knew of and raised the basis for disqualification in the trial court. Id The court therefore reasoned that a failed attempt -34-

43 to disqualify a trial judge may be a prerequisite to requiring a showing of prejudice on appeal. Id. 55. Second, the court of appeals held that in each of those cases a jury, not the judge, was the ultimate factfinder, thus tending to insulate the verdict from any judicial bias. Id. 57. The court of appeals found this Court s opinion in Regional Sales Agency, Inc. v. Reichert to be more applicable. Id. at 59. In Reichert, a member of the court of appeals decided a case in which one of the attorneys was a partner in the same law firm as the judge s father-in-law and brother-in-law. 830 P.2d at 254. The objecting party became aware of the relationship only after the court of appeals had heard and decided the case. Id. Counsel therefore had no notice of the grounds of disqualification. Id. at 257 n.7. As for prejudice, this Court reversed without conducting a prejudice analysis because of the plain violation of the conflict of interest rule. Id. Reichert does not control here for two reasons. First, unlike counsel in Reichert, counsel here may have known of the basis for disqualification and could have raised it in the juvenile court. As explained, the court of appeals was required to presume that was the case. Thus, unlike the situation in Reichert, Defendant here presumably had the opportunity to timely object. Granted, this Court held in Reichert that it was the judge s responsibility to identify the relationship that created the potential for -35-

44 disqualification. 830 P.2d at 257 n.7. But as explained, screening procedures likely eliminated any appearance of impropriety here. And because the record does not show otherwise, the judge here presumably knew that Defendant s counsel was aware of who her husband was and therefore had no reason to identify that relationship on the record. Therefore, the predicate for excusing a prejudice showing in Reichert is absent here because either (1) there may have been no disqualification issue to raise, or (2) this record does not establish that Defendant lacked the opportunity to raise this issue in the juvenile court. Further, unlike in Reichert, Defendant knew of the basis for disqualification in time to raise the issue in the lower court and actually did raise it there. Defendant therefore had the opportunity to develop evidence of actual prejudice, if any existed. The party in Reichert was deprived of that opportunity because he did not discover the basis for disqualification until the court of appeals decided his case. Second, unlike Reichert, any violation of the code of judicial conduct here was not plain. As explained, absent speculation and a misinterpretation of the record, there is no evidence showing that the judge s husband s position plainly required disqualification under rule There is no need -36-

45 here to remedy a plain violation of the conflict of interest rule. See Reichert, 830 P.2d at 257 n.7. Reichert is also distinguishable because reversing an appellate court s opinion and requiring a new oral argument is far less drastic a remedy than reversing an entire criminal proceeding. The remedy in Reichert required only that the parties reargue their case before a different court of appeals panel. The remedy the court of appeals granted in this case undoes an entire criminal proceeding. Nothing in Reichert suggests that its remedy of reversing without a showing of prejudice applies beyond the unique procedural circumstances of that case, especially where Reichert diverged from the prior holdings in Neeley and Gardner. In addition to Reichert, the court of appeals also cited to cases from other states holding that a showing of actual prejudice is not required to reverse based on a claim of judicial bias. Van Huizen, 2017 UT App 30, But like Reichert, all those cases involved plain violations of the disqualification rule. See Blaisdell v. City of Rochester, 609 A.2d 388, 390 (N.H. 1992) (judge was related within the third degree to a partner in a law firm representing a party in the proceeding); Scott v. United States, 559 A.2d 745, , (D.C. 1989) (en banc) (judge presided over case involving counsel from the U.S. Attorney s Office while actively seeking employment in that -37-

46 office and the government agreed that the judge violated the judicial canon); State v. Smith, 635 So. 2d 512, 513 (La. App. 1994) (attorney who represented defendant at arraignment later became a judge and sentenced same defendant); Velardo v. Ovitt, 933 A.2d 227, 229 (Vt. 2007) (assistant judge in child custody proceeding was guardian ad litem s sister). Unlike these cases and Reichert, there was no plain violation of rule 2.11 here. Indeed, there was presumably no violation at all. The court of appeals therefore erroneously relied on Reichert. B. Excusing a prejudice showing undermines the preservation rule and encourages parties to seek unfair advantage by delaying disqualification motions to get the benefit of reversal on a lower burden of proof. As explained, the preservation rule promotes judicial economy and prevents parties from seeking unfair advantage by withholding objections. See State v. Holgate, 2000 UT 74, 11, 10 P.3d 346. The court of appeals refusal to require a prejudice showing undermines these purposes and encourages parties to withhold disqualification issues until appeal because their burden to show reversible error will then be lighter than if they had preserved the issue. Had the court of appeals applied the preservation rule as this Court s precedent required it would have reviewed this unpreserved issue only under the plain error, exceptional circumstances, or ineffective assistance of -38-

47 counsel standards. See State v. Low, 2008 UT 58, 19, 192 P.3d 867, 874. Each of those standards would have required Defendant to show prejudice that the juvenile judge was actually biased. See State v. Ott, 2010 UT 1, 42, 247 P.3d 344 ( [A] prejudice analysis is the same under both a plain error and ineffective assistance of counsel framework. ); State v. Munguia, 2011 UT 5, 11, 253 P.3d 1082 (The exceptional-circumstances doctrine exists to avoid manifest injustice ); State v. Jimenez, 2012 UT 41, 20, 284 P.3d 640 ( Manifest injustice is synonymous with the plain error standard. ). Defendant could not have shown prejudice because a thorough review of the record provided no reason to think the Juvenile Judge was actually biased against [Defendant]. Van Huizen, 2017 UT App 30, 22. By refusing to apply the preservation rule and to require Defendant to show prejudice, the court of appeals approach encourages parties to seek unfair advantage by withholding judicial bias claims. In cases where the record does not plainly show that a party knew of a potential disqualification issue, a party who in fact knows of such an issue now has every reason not to raise it at trial. If that party does not prevail, he can raise the disqualification issue on appeal and benefit from a lesser burden for showing reversible error than would have applied had he raised the issue at trial. As explained, parties who raise a disqualification issue at trial must show actual prejudice to obtain -39-

48 a reversal, see Neeley, 748 P.2d at 1094, whereas parties who raise an unpreserved disqualification issue on appeal do not, see Van Huizen, 2017 UT App 30, 64. But as this Court has recognized, the burden for raising unpreserved claims should not be too easy for defendants and the standard of review should encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error. State v. Bond, 2015 UT 88, 45, 361 P.3d 104 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)). The court of appeals opinion does the exact opposite. It encourages parties to seek an unfair advantage by withholding claims of judicial bias and makes it easier to obtain a reversal on an unpreserved claim than a preserved claim. C. A violation of a judicial conduct rule alone should not require reversal because the rules do not have the force of law. Moreover, a violation of the code of judicial conduct, without more, should not require a reversal. Even if the record here did show that the juvenile judge should have recused herself which it did not the code of judicial conduct does not have the force of law and therefore cannot establish an independent basis for reversing a criminal conviction. As this Court recognized in Neeley, the code of judicial conduct defines circumstances that might subject a judge to disciplinary measures. 748 P.2d at It does not -40-

49 define the parameters of defendants constitutional rights to a fair trial. Id. Judicial conduct that would violate a criminal defendant s constitutional rights is not coextensive with judicial conduct that might lead to sanctions for a judge. State v. Munguia, 2011 UT 5, 16, 253 P.3d The rules of judicial conduct impose higher standards on judges than the Constitution requires to protect the rights of defendants. Id. And if a judge decides the case fairly, then the defendant suffered no constitutional violation. As the court of appeals recognized, noting in this case suggests that the juvenile court judge treated Defendant unfairly. Van Huizen, 2017 UT App 30, 22. The court of appeals therefore erred in reversing based solely on what it believed to be a violation of rule As important as it is to avoid any appearance of partiality in judicial proceedings, that principle should not require reversal where, despite an appearance of partiality, a defendant nevertheless receives a fair trial. CONCLUSION For the foregoing reasons, this Court should reverse the judgment of the Court of Appeals. -41-

50 Respectfully submitted on August 21, SEAN D. REYES Utah Attorney General /S/ CHRISTOPHER D. BALLARD CHRISTOPHER D. BALLARD Assistant Solicitor General Counsel for Petitioner CERTIFICATE OF COMPLIANCE I certify that in compliance with rule 24(f)(1), Utah R. App. P., this brief contains 9082 words, excluding the table of contents, table of authorities, and addenda. I further certify that in compliance with rule 27(b), Utah R. App. P., this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Book Antiqua 13 point. /S/ CHRISTOPHER D. BALLARD CHRISTOPHER D. BALLARD Assistant Solicitor General -42-

51 CERTIFICATE OF SERVICE I certify that on August 21, 2017, two copies of the Brief of Petitioner were mailed hand-delivered to: Elizabeth Hunt ELIZABETH HUNT LLC 569 Browning Ave. Salt Lake City, UT Also, in accordance with Utah Supreme Court Standing Order No. 8, a courtesy brief on CD in searchable portable document format (pdf): was to the Court to the appellant. will be filed and served within 14 days. /S/ MELANIE KENDRICK -43-

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