Weber County v. Ogden Trece aka Centro City Locos

¶1 We are presented with two consolidated cases. The first is a direct appeal (Appeal) from an injunction entered against Ogden Trece (Trece), a criminal street gang. The second is a petition for

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extraordinary writ (Petition) brought by three alleged Trece members who were served with the injunction.

¶2 Weber County (County) obtained a permanent injunction against Trece and its members under a public nuisance theory pursuant to section 76-10-806 of the Utah Code, which empowers a county attorney "to institute an action in the name of the county . . . to abate a public nuisance.” The statutory definition of a public nuisance includes a criminal street gang. See id. §§ 78B-6-1101(2)(d), 78B-6-1107(1)(d); see also id. § 76-9-902(1) (defining a "[c]riminal street gang”).

¶3 The injunction prohibits Trece members who have been served with a copy of it from associating with one another; confronting, intimidating, annoying, harassing, threatening, challenging, provoking, or assaulting any person known to be a witness or victim of any activity of Trece; possessing a firearm in public or any place accessible to the public; or violating an 11 p.m. to 5 a.m. curfew. It applies to a twenty-five square-mile "Safety Zone” encompassing nearly the entire city of Ogden. The injunction contains both a hardship provision and an opt-out provision.

¶4 Appellants and Petitioners argue that (1) service on Trece as an unincorporated association was improper and thus the district court lacked jurisdiction to enter the injunction, (2) the injunction violates procedural due process, and (3) the injunction violates substantive due process. In the event the injunction is vacated, they also argue that they are entitled to an award of attorney fees.

¶5 We lack appellate jurisdiction over the Appeal because the purported appellants are not parties to the proceeding. We do, however, have jurisdiction to consider the Petition. Although Trece is an unincorporated association and amenable to suit, we conclude that service on Trece was improper. The district court therefore lacked jurisdiction to enter the injunction. We deny the request for attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Ogden Trece is a criminal street gang that has operated for over thirty years. It has identifying signs, symbols, tattoos, graffiti, clothing, and hand signs. In its findings of fact and conclusions of law granting the permanent injunction, the district court found that members of Ogden Trece "commit crime for the purpose of intimidating rival gang members, asserting their dominance over an area, intimidating citizens and witnesses, and obtaining money

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through many different types of illegal activities, from selling drugs to trafficking in stolen property.” Revenue is brought into the gang by "criminal activity such as burglaries, thefts, robberies, drug dealing, etc.” The day-to-day operations of the gang are directed by senior members called "shot callers.” Less senior gang members are "put to work” by the "shot callers,” meaning they are to "commit criminal activity to bring recognition and money into the gang.” The proceeds from the criminal activities are given to the "shot callers” who "are [then] responsible for distributing money to members of the gang when they deem necessary.”

¶7 On August 20, 2010, Weber County filed a complaint for permanent injunction to abate a public nuisance. It brought this action against Ogden Trece as an unincorporated association. The County also filed an application for a restraining order, preliminary injunction, and a request for hearing. The district court entered a temporary restraining order that same day.

¶8 On August 24, 2010, the County personally served five alleged Trece members: Evan Barrow, Emmanuel Montoya, Samuel Parsons, Roman Hernandez, and Daniel Callihan. The County also mailed process to twelve other alleged Trece members, namely: Jamie Gomez, Michael Gutierrez, Dario Muniz, David Maes, Nicholas Davis, Juan Saucedo, Darren Begay, Tyler Greenfield, Daniel Salinas, Troy Rivera Jr., Alex Mercado, and Elmer Maes.

¶9 Even though it had personally served gang members, the County sought an order allowing it to serve Trece by publication. At a hearing on August 31, 2010, the County attorney stated, without elaborating, "that we have adequately put the gang on notice, however, just to make sure that that's accomplished, we're going to request an order from the court to allow us to further put the gang on notice by publication.” The attorneys and the court then turned to other issues. Near the conclusion of the hearing, the County attorney reminded the court of its motion, asking "would the court authorize us to publish?” The court responded, "[y]es, I will authorize service.”

¶10 The County followed up two days later with a written motion requesting service by publication and a supporting affidavit. The County argued that it was "difficult if not impossible to give the gang 'notice' . . . and serve [it] under traditional methods contemplated by [r]ule 4 of the Utah Rules of Civil Procedure.” Specifically, the County argued that Trece "do[es] not have a registered agent in the State of Utah or any other State,” nor any

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"known management structure, officers, directors, or like managerial personnel [on] which to personally serve with process.” The district court entered a written order authorizing service by publication the following day. The County then published service of process in the Ogden Standard Examiner and on www.utahlegals.com.

¶11 On September 14 and 27, 2010, the district court held an evidentiary hearing on the County's request to convert the temporary restraining order to a preliminary injunction. The court heard testimony from two Ogden police officers who testified about the criminal and nuisance activity of Trece. The district court also heard testimony from a deputy district attorney from California who testified as an expert on the effectiveness of gang injunctions. Following the hearing, the district court converted the temporary restraining order to a preliminary injunction that included all the same prohibitions as the temporary restraining order, but also included a "Hardship Exemption Process” and an "'Opt Out' Provision.”

¶12 The County then began serving the preliminary injunction on more than three hundred alleged members of Ogden Trece. Violation of the injunction is a class B misdemeanor punishable by up to six months imprisonment and up to a $1,000 fine. UTAH CODE § 76-10-807. Among those served were brothers Chase and Jesse Aeschlimann. Upon being served, the brothers filed a motion for a hearing to contest the constitutionality of the preliminary injunction, noting that neither of them had been served or given notice of the proceedings prior to the entry of the preliminary injunction or its service upon them. But neither brother moved to intervene in the action or request formal party status.

¶13 The district court ruled that because the gang as an entity had been sued and the constitutional arguments had "already been dealt with,” individuals subsequently served with the injunction did not have a right to intervene or otherwise appear in the case or to challenge the terms of the injunction. It reasoned that due process had been satisfied because "[l]aw enforcement is required to serve the injunction on gang members, thus placing them on notice of the injunction.”

¶14 On June 11, 12, and 14, 2012, the district court held an evidentiary hearing to consider whether to make the preliminary injunction permanent. No one representing Trece appeared at the hearing. However, despite the fact that none of their clients had

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moved to intervene, three attorneys representing a total of eight individuals who had been served with the preliminary injunction attended the hearing. All of these attorneys noted that they represented only the individuals who had been served with the injunction and that they did not represent Trece itself. And none of the eight alleged members of Trece were present.

¶15 At the hearing, the district court heard evidence regarding Trece, why the County believed it to be a criminal street gang and a public nuisance, and how some of its members had previously been convicted of crimes. The district court found that Ogden Trece met the legal definition of a criminal street gang and a nuisance and that "the provisions of the injunction are narrowly drawn and are necessary to give . . . complete relief from [Trece's] nuisance activities.”

¶16 At the conclusion of the hearing, the district court entered the permanent injunction (Injunction). The Injunction applies to the "Safety Zone,” a twenty-five square-mile area encompassing most of the city of Ogden. It prohibits those alleged gang members served with it from engaging in specified conduct in the Safety Zone. Specifically, it prohibits the alleged gang members from any knowing association with gang members in public places or public view. This extends to "[d]riving, standing, sitting, walking, gathering, or appearing together with any known member of Ogden Trece anywhere in public view or anyplace accessible to the public.” The Injunction also prohibits gang members from intimidating victims and witnesses. It states that Trece members are prohibited from "[c]onfronting, intimidating, annoying, harassing, threatening, challenging, provoking, [or] assaulting any person known to be a witness to any activity of Ogden Trece, known to be a victim of any activity of Ogden Trece, or known to have complained about any activity of Ogden Trece.”

¶17 Another provision of the Injunction criminalizes possession of firearms, "imitation” firearms, ammunition, and "illegal weapon[s],” and prohibits alleged gang members from being in the presence of such weapons or another person possessing them. The Injunction imposes a curfew on alleged gang members between the hours of 11 p.m. and 5 a.m., "with exceptions for traveling to and from work, from any non-gang related entertainment event, school activities, and religious services,” and "for emergencies, accidents or other situations that require[] immediate action to prevent serious bodily injury or loss of life.” The Injunction also prohibits alleged gang members from damaging and defacing property through

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graffiti, using and distributing drugs and drug paraphernalia, and consuming alcohol except in their homes or in properly licensed establishments. It also requires that alleged gang members "obey all laws.”

¶18 The Injunction contains an "opt-out” provision under which an alleged gang member who has been served with it may "either renounce gang membership or declare that he or she never was a gang member.” This requires a "declar[ation] that he or she has not been arrested for a 'gang-related' crime in the past three years, not associated with gang members for the past three years, and that the served person declare that he or she has not received any new gang tattoos.”

¶19 The Injunction also contains a "hardship exemption process” under which an individual may seek exemption from the association and curfew provisions of the Injunction by written application request[ing] permission to associate only with a named individual or named individuals at specific times and in specific places when such association is reasonably necessary, or permission to be in a specific public place between 11[] p.m. and 5[] a.m. when it is reasonably necessary to be in a particular place at a particular time during those hours.

¶20 The County is now criminally enforcing the Injunction against those alleged gang members who have been served with it. Roman Hernandez, Samuel Parsons, Jamie Gomez, Willie Rodriguez, and brothers Chase and Jesse Aeschlimann, who have all been served with the Injunction, filed notices of appeal in the underlying action. Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann also filed a petition for extraordinary writ directly with this court challenging the Injunction. We have jurisdiction pursuant to section 78A-3-102(2) of the Utah Code.

STANDARD OF REVIEW

¶21 "Whether this court has jurisdiction over an appeal is a question of law that can be raised for the first time on appeal” by either party or by the court. Navajo Nation v. State (In re Adoption of A.B.), 2010 UT 55, ¶ 21, 245 P.3d 711; see also Kennecott Corporation v. Utah State Tax Commission, 814 P.2d 1099, 1100 (Utah 1991). "When this court lacks jurisdiction over an appeal, it retains only the authority to dismiss the appeal.” In re A.B., 2010 UT 55, ¶ 21.

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¶22 The issue of whether service of process on Trece was proper is "a question of law that we review for correctness.” Stichting Mayflower Mountain Fonds v. Jordanelle Special Service District, 2001 UT App 257, ¶ 7, 47 P.3d 86. Likewise, whether the Injunction violates procedural or substantive due process are questions of law that we review for correctness. Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177 ("Constitutional issues, including questions regarding due process, are questions of law that we review for correctness.”).

ANALYSIS

I. WE LACK APPELLATE JURISDICTION OVER THE APPEAL BECAUSE THE SO-CALLED APPELLANTS ARE NOT PARTIES TO THE CASE

¶23 Weber County and the purported appellants spend the entirety of their appellate briefs addressing four issues: adequacy of service of process, procedural due process, substantive due process, and attorney fees. But we see a more fundamental problem with this appeal. Specifically, the so-called appellants (Roman Hernandez, Chase Aeschlimann, Jesse Aeschlimann, Samuel Parsons, Jamie Gomez, and Willie Rodriguez) are not parties to the action and thus are not entitled to appeal the Injunction.

¶24 In Utah Down Syndrome Foundation, Inc. v. Utah Down Syndrome Association, we held that we lacked appellate jurisdiction over the case because the individual attempting to appeal was not a party and thus did not have the right to appeal. 2012 UT 86, ¶ 1, 293 P.3d 241. We explained that the appropriate vehicle through which he could challenge the district court's order was a petition for extraordinary writ. Id. ¶ 12.

¶25 In that case, the district court "issued an order and judgment purporting to affect the interests of a nonparty,” Mr. Gilbert. Id. ¶ 13. Mr. Gilbert never filed a motion to intervene, but sought to appeal the judgment. Id. We held that "[b]ecause he was never a party . . . Mr. Gilbert does not have an appeal as of right, and his attempt to appeal was improper.” Id. We therefore concluded that we lacked jurisdiction and were required to dismiss the case. Id.

¶ 26 In this case, the only named defendant is Ogden Trece. The only person or entity that attempted to intervene was the American Civil Liberties Union (ACLU). But its motion to intervene was denied and it has not appealed that ruling. None of the socalled appellants in this appeal were named as parties to the action and none sought to intervene. Rather, their attorneys simply

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showed up to court hearings and were somehow allowed to be heard, despite the fact that they were technically mere spectators. Indeed, when entering their appearances in the hearings, the attorneys were careful to note that they were representing individual alleged gang members and not the gang. For example, in one instance, Michael Studebaker introduced himself as counsel "for Samuel Parsons, Jaime Gomez, and Willie Rodriguez and nobody else, and no[t] the gang in itself.” Another attorney, Randall Richards, stated, "I represent Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann. . . . Oh, and by the way, I do not represent the gang, whatever that happens to be.” Michael Boyle stated he was representing "Emmanuel Montoya, Andrew Callahan. And again, I don't represent Ogden Trece or Centro City Locos.”

¶27 Although Jesse Aeschlimann never actually moved to intervene, the district court raised and then rejected the possibility of intervention in a memorandum decision. It stated: Jesse Aeschlimann has failed to file a motion to intervene as required under [r]ule 24, URCP. The [c]ourt finds Jesse Aeschlimann should not be permitted to intervene as a matter of right or as a permissive intervenor. The interests of Ogden Trece are already being adequately represented by two attorneys. Many of the issues raised by Jesse Aeschlimann in his memorandum were addressed by the [c]ourt in two memorandum decisions on April 4, 2011. Allowing permissive intervention for Jesse Aeschlimann would cause undue delay and require the [c]ourt to revisit issues already ruled on. Permissive intervention would require the [c]ourt to restart the litigation. . . . The [c]ourt will deny Jesse Aeschlimann's motion to intervene.

¶28 Since none of the so-called appellants are parties to the case, they are not entitled to an appeal as of right. See, e.g., Utah Down Syndrome, 2012 UT 86, ¶ 9 (stating that the appellant "as a nonparty, is not entitled to appeal”); Brigham Young Univ. v. Tremco Consultants, Inc., 2005 UT 19, ¶ 46, 110 P.3d 678 (noting that "nonparties . . . cannot appeal the [court] order”). "Under our rules, it is the service of process, the affirmative act of filing suit, or the act of seeking to intervene as a party that subjects one to the jurisdiction of the court and puts him on notice that he is subject to ongoing court proceedings.” Utah Down Syndrome, 2012 UT 86, ¶ 18. Mere notice of or appearance in proceedings is not enough. Even though

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the district court allowed the so-called appellants to be heard, they were not named parties and never filed motions to intervene. They were therefore not entitled to appeal and we lack appellate jurisdiction over the appeal. Id. ¶ 12.

II. WE HAVE JURISDICTION TO CONSIDER THE PETITION FOR EXTRAORDINARY WRIT FILED BY ROMAN HERNANDEZ, CHASE AESCHLIMANN, AND JESSE AESCHLIMANN

¶29 Roman Hernandez, Chase Aeschlimann, and Jesse Aeschlimann (Petitioners) filed a petition for extraordinary writ directly with this court. Pursuant to the Utah Constitution, we have "original jurisdiction to issue all extraordinary writs.” UTAH CONST. art. VIII, § 3. This is the proper vehicle by which nonparties to a lawsuit may challenge a district court's order. Brigham Young Univ. v. Tremco Consultants, Inc., 2005 UT 19, ¶ 46 n.7, 110 P.3d 678. "[A] petition for extraordinary writ filed with the appellate court provides an adequate remedy in light of the appellate court's obligation to give due regard to principles of due process.” Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Ass'n, 2012 UT 86, ¶ 22, 293 P.3d 241. Thus, we have jurisdiction to consider their petition and turn to the merits of their claims.

III. TRECE IS AN UNINCORPORATED ASSOCIATION THAT IS AMENABLE TO SUIT

¶30 Petitioners first challenge the district court's jurisdiction over Trece, arguing that a criminal street gang is simply not amenable to suit. Weber County brought suit against Trece as an unincorporated association. Petitioners argue that in order for an unincorporated association to be sued, it must exist for a lawful purpose and must transact business under a common name. They reason that Trece meets neither requirement because it exists for illegal purposes and does not transact business under a common name. The County responds that a street gang is specifically listed as a public nuisance under Utah Code section 78B-6-1101(2)(e) and that section 76-10-806 allows a county attorney "to institute an action in the name of the county . . . to abate a public nuisance.” It therefore reasons that "Utah law . . . recognizes that a criminal street gang is a jural entity and contemplates its being amenable to a public nuisance abatement action.” We agree with the County that Trece is amenable to suit, but we reach that conclusion based on alternative grounds.

¶31 We first turn to Petitioners' argument that Trece is not

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subject to suit as an unincorporated association because "a fundamental requirement of an unincorporated association is that it be formed for a lawful purpose.” Petitioners rely on two cases from other jurisdictions for this proposition. The first is People ex rel. Reisig v. Broderick Boys, in which a California court relied on a California statute that defined an unincorporated association as "an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose.” 59 Cal. Rptr. 3d 64, 74 (Cal. Ct. App. 2007) (quoting CAL. CORP. CODE § 18035, subd. (a) (internal quotation marks omitted)). But that case is unpersuasive inasmuch as no such statutory requirement of lawful purpose exists in Utah.

¶32 The second case on which Petitioners rely is similarly inapposite. In Peoples Gas System, Inc. v. Acme Gas Corporation, a Florida court stated in a footnote that an unincorporated association is "[g]enerally 'created and formed . . . for the accomplishment of some lawful purpose.'” 689 So. 2d 292, 298 n.8 (Fla. Dist. Ct. App. 1997) (emphasis added) (quoting 4 FLA. JUR. 2D Associations & Clubs §§ 1, 2 (1994)). We do not disagree with this proposition. However, the fact that unincorporated associations are generally formed for lawful purposes does not suggest that they may only be so.

¶33 Rule 17(d) of the Utah Rules of Civil Procedure provides that "[w]hen two or more persons associated in any business . . . not a corporation, transact such business under a common name, . . . they may sue or be sued by such common name.” See also Hebertson v. Willowcreek Plaza, 923 P.2d 1389, 1391–92 (Utah 1996). Neither the rule nor any other provision of Utah law contains any requirement that unincorporated associations be engaged in lawful activity before they are amenable to suit. Thus, Trece is amenable to suit as an unincorporated association so long as it transacts business under a common name. Id. at 1392.

A. Trece Conducts Business

¶34 Petitioners argue that "there is no evidence in the record of Trece transacting business” and that the County conceded that "Ogden Trece exists only as a criminal organization.” They contend that criminal organizations do not "transact business” but rather commit crimes. We disagree. There is no logical reason why business transactions and criminal activity are mutually exclusive.

¶35 In interpreting the language of a clear and unambiguous statute or rule, "our duty is to give effect to [its] plain meaning.” State ex rel. Z.C., 2007 UT 54, ¶ 11, 165 P.3d 1206. The caveat is that "a court should not follow the literal language of a statute if its plain

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meaning works an absurd result.” Savage v. Utah Youth Village, 2004 UT 102, ¶ 18, 104 P.3d 1242.

¶36 "Business” is defined as "a particular occupation or employment habitually engaged in for livelihood or gain.” BLACK'S LAW DICTIONARY 226 (9th ed. 2009); see also id. ("By extension, transactions or matters of a noncommercial nature

¶64 Because the individuals who filed the Appeal are not parties to the underlying lawsuit, they do not have the right to appeal and we lack jurisdiction over the Appeal. But we do have jurisdiction over Petitioners’ alternative petition for extraordinary writ and vacate the Injunction due to insufficient service of process on the only named defendant, Ogden Trece. Ogden Trece transacts business under a common name and it is amenable to suit as an unincorporated association. It may be served through personal service on the functional equivalent of an officer or a managing or general agent or by publication if the identity or whereabouts of such an individual is unknown and cannot be ascertained through reasonable diligence. In this case, however, service by publication was not warranted because the County failed to demonstrate that it had exercised reasonable diligence in attempting to identify an officer or a managing or general agent of Trece before requesting alternative service. The district court therefore lacked jurisdiction over Trece and the Injunction is void.