This opinion is subject to r evision before publication in the Pacific Reporter

201 5 UT 35

IN T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————

— In the Matter of the Adoption of J.M.S., a minor

——————

— J ACOB D AVID B ROOKS , Intervenor/

Appellant

,

v.

A .S. and J.S.

, Appellees

.

——————

— No. 20120683 Filed February 6 , 2015

Fourth District, Pr ovo Dep‘t The Honorable Fred D. Howard No. 122400005

Attorneys: Wesley D. Hutchins, West Jordan, for appellant Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellee s William C. Duncan, Lehi, amicus curiae

, for Sutherland Institute

J USTICE L EE a uthored the opinion of the Court, in which C HIEF J USTICE D URRANT , and J USTICE P ARRISH joined.

A SSOCIATE C HIEF J USTICE N EHRING filed a concurring opinion. 1

J USTICE D URHAM filed a dissenting opinion.

J USTICE L EE , opinion of the Court:
¶1 T his case, like Neva res v. M.L.S.

, 2015 UT 34

, presents que stions concerning the applicability and constitutionality of Utah Code section 78B

- 6

- 111

. That provision forbids a biological father

1 Associate Chief Justice Nehring acted on this case prior to his
retirement.I N RE A DOPTION OF J.M.S. Opinion of the Court

2 from challenging an adoption when his child was conceived as a result of conduct tha t ―would constitute any sexual offense‖ d escribed in the Utah C riminal C ode. In this case and in Nevares , the statutory question presented is whether this provision can prope rly be construed to encompass sexual conduct in another state that would have been criminal if engaged in in Utah. And in both ca ses the biological father also asserts that such application of section 111 would violate his constitutional right to due process of law.
¶2 We resolve this case on the basis of our opinion in Nevares

. We hold t hat the ―sexual offense[s]‖ described in section 111 do not encompass activities outside of Utah involving non

- Utahns. And on the basis of that conclusion, we reverse the denial of the father‘s petition to intervene and remand for further proceedings
not i nconsistent with this opinion.

I
¶3 Jacob David Brooks and the birth mother, both Pennsylv ania residents, conceived a child together in Pennsylvania. At the time, Brooks was eighteen and the birth mother was fourteen. Due to this age difference, the sexual re lationship between the two of them was prohibited by Pennsylvania criminal law. See 18 P A

. C ONS

. S TAT

. § 3122.1 (2014) ( statutory sexual assault); id. § 3123 (a)(7) (involuntary deviate sexual intercourse); id. § 3126 (a)(8) (indecent assault) . Brooks was la ter charged in Pen nsylvania with statutory sexual assault and corruption of minors, but pled guilty to indecent assault, a misdemeanor.
¶4 Meanwhile, the birth mother made preparations to place the child for adoption in Utah. Brooks objected to these designs, though it is unclear whether he knew the planned location for the adoption. In time, the child was born and then relinquished for adoption twenty

- four hours later. The adoptive parents filed an adoption petition in Utah, which Brooks became aware of two

w eeks later. Brooks subsequently filed paternity documents in both Utah and Pennsylvania, as well as a motion to intervene in the Utah adoption proceedings.
¶5 The Fourth District Court denied Brooks‘s motion to inte rvene, citing Utah Code section 78B

- 6

- 111. T his section states, A biological father is not entitled to notice of an adoption proceeding, nor is the consent of a biolog ical father required in connection with an adoptionCite as: 2015 UT 35
Opinion of the Court

3 proceeding, in cases where it is shown that the child who is the subject of the p roceeding was conceived as a result of conduct which would constitute any sexual offense describ ed in Title 76, Chapter 5,
Part 4, regardless of whether the biological father is formally charged with or convicted of a criminal o ffense.

Id. (emphasis added) . According to the district court, Brooks‘s conduct constituted a sexual crime under Utah Code section 76

- 5

- 401, placing his conduct within section 78B

- 6

- 111‘s reach. For this reason, the district court found that Brooks had no right to contest the adoptio n. It thus denied his motion to intervene on that basis.
¶6 Brooks filed this appeal. In challenging the denial of his motion to intervene, Brooks raises legal questions concerning the interpretation and constitutionality of section 111. Our review is accordi ngly de novo. See Manzanares v. Byington (In re Adoption of Baby B.) , 2012 UT 35, ¶ 41, 308 P.3d 382.

II
¶7 A threshold question is whether the interpretation and constitutionality of section 111 are properly before us on appeal. That question implicates the law of preservation and of adequate briefing. For reasons set forth below, we hold that Brooks pr eserved these issues in the district court and adequately briefed them on appeal to this court.
¶8 First, both the statutory and constitutional aspects of Brooks‘ s case were presented to the district court. In a memora ndum filed with the district court, Brooks asserted that the key question is ―whether Utah or Pennsylvania law applies‖ and a rgued that ―Pennsylvania law should apply to this case.‖ Later, at his hear ing, Brooks argued that section 111 was ―unconstitutional from a due process standpoint.‖ And although he framed his co nstitutional arguments generally in terms of a concern about ―f orum shopping,‖ he also asserted that a statute employed to ―cut him out‖ of his parental rights was a ―violation of due process.‖
¶9 Brooks‘s counsel‘s statutory and constitutional arguments in the district court were relatively superficial. Thus, instead of presenting a careful analysis of the questions of statutory and co nstitut ional interpretation presented, Brooks‘s counsel devoted most of his energy to developing a factual record of what he sawI N RE A DOPTION OF J.M.S. Opinion of the Court

4 as the misdeeds of the adoption agency officials involved in the case. Specifically, in the district court and again on appeal, cou nse l presented extensive transcripts of telephone calls to the ado ption agency, highlighting what counsel saw as the overly aggre ssive assertions and positions taken by the agency‘s represent atives. 2 That tack was unproductive. Counsel would have been far bet ter served staying focused on the legal questions at issue; the attempt to smear an opponent with a sideshow based on a sting operation was unhelpful

. ¶10 That said, the legal questions presented are important, and counsel adequately preserved them below. Broo ks raised both statutory and constitutional questions in the district court, and we therefore deem them preserved for purposes of appeal.
¶11 We likewise find these issues adequately briefed on appeal. In his opening brief on appeal, Brooks asserted that ―the essence of the case‖ is that ―[a]ppellees should not be permitted to rely on
78B

- 6

- 111, when Pennsylvania law should apply.‖ And appellees, in their brief, responded to his statutory argument at some length. They asserted that ―nothing in the language of S ection 78B

- 6

- 111 limits its application to cases where the child was con c eived in Utah,‖ while insisting that ―[w]hat is important is whether the f ather‘s sexual relationship with the birth mother consists of the type of conduct described under Title 76, C hapter 5, Part 4 of the Utah Code.‖ That is the key statutory question in this case (and in
Nevares )

. ¶12 The constitutional arguments were also advanced on a ppeal. Brooks asserted that even if his relationship could constitute a sexual offense in Utah, ―he ne vertheless has a due process right and other constitutionally protected rights relating to his rights to parent his biological child.‖ The point was made even more forc efully at oral argument, where counsel asserted that ―[t]his case r e-

2 Brooks‘s counsel apparently saw this as an opportunity to sway judicial sympathy in his favor. That was a misjudgment on his part. This is a court of law. And as judges we decide the cases that come before us in accordance with the govern ing provisions of the law, and not based on our sympathy for one of the parties or hostility toward another. Blatant attempts to stir bias against an opponent will often backfire.Cite as: 2015 UT 35
Opinion of the Court

5 ally revolves around

. . . whether or not a sex crime . . . obviates any need whatsoever to give notice and an opportunity to be heard to an o ut

- of

- state biological father,‖ and that denying Brooks‘s right to intervene ―violates . . . due process‖ because ―none of the partie s had any connection whatsoever to Utah.‖
¶13 The briefing on the constitutional implications of section 111 was by no mean robust. But the constitutional question was presented, and an analysis of that issue aids our analysis of the threshold statutory quest ion, which is properly preserved and a rgued on appeal. We accordingly proceed to the merits.

III
¶14 The threshold question presented is whether Utah Code
section 78B

- 6

- 111 applies to the sexual activity between Brooks and the birth mother of J.M.S. That provi sion forecloses the pare ntal rights of a biological father where ―the child who is the subject of the proceeding was conceived as a result of conduct which would constitute any sexual offense described in Title 76, Chapter 5, Part 4

, regardless of whether the biological father is formally charged with or convicted of a criminal offense .‖ U TAH C ODE § 78B

- 6

- 111. The district court denied Brooks‘s motion to intervene on the ground that his child was ―conceived as a result of conduct which would constitute‖ a s exual offense under Utah law.
¶15 We reverse on the ground that section 111 does not apply in this case. This conclusion follows from our analysis in Nevares v. M.L.S.

, 2015 UT 34 , ¶¶ 27

– 43 , __P.3d__ . As we concluded there

, ―section 111 is not implicated where , as here, the conduct in que stion could not have  ̳constitute[d] a sexual offense‘ under the re ferenced part of the Utah code because the activity involved non

Utahns outside of Utah, and thus could not have sustained a cri minal charge u n der Title 76, Chap ter 5, Part 4.‖ Id . ¶ 28 (alter ation in original)

. ¶16 Our Nevares opinion based that determination on three grounds: ―(1) the statute‘s  ̳r e gardless‘ clause, which suggests (when read in light of semantic canons of construction) that all

matters sufficient to sustain a  ̳fo r mal[] charge[]‘ or  ̳convict[ion]‘ must be established to trigger section 111; (2) the well

- settled pr esumption against extraterritorial application of statutory prov isions, which counsels in favor of limit ing section 111 to offenses
committe d in Utah even if the statute were silent r e gar d ing its a p-I N RE A DOPTION OF J.M.S. Opinion of the Court

6 plication to conduct outside of Utah; 3 and (3) the canon of const itutional avoidance, which counsels in favor of limit ing section 111 to offenses committed in Utah in light of the grave due process problems 4 associated with‖ the contrary construction. 5 Id . ¶ ¶ 30

– 46 (alterations in original)

.

3 The concurrence asserts that section 111 ―is not being applied
extraterrit orially‖ because it is ―being applied within the state of Utah to a Utah adoption proceeding.‖ Infra ¶ 25. But the concl usion does not follow from the premise. Most any question of e xtraterritoriality arises in a case in which a litigant is seeking to a ppl y the forum state‘s law to another litigant‘s extraterritorial acti vity. See Nevares , 2015 UT 34 , ¶ 35 (citing U.S. Bond & Fin. Corp. v.
Nat ’ l Bldg

. & Loan Ass’n of Am

. , 17 P. 2d 238, 239 (Utah 1932) (d eclining to apply Utah securities laws to ―a contract m ade and ex ecuted in another state‖) ) ; Morrison v. Nat ’ l Austl. Bank Ltd.

, 561 U.S. 247, 262

– 65 (2010) (holding that anti

- fraud provision of fede ral securities statute did not apply extraterritorially to case invol ving foreign plaintiffs suing foreign and A merican defendants in federal court); State v. Reed , 709 P.2d 391, 392 (Utah 1985) (decli ning to give extraterritorial effect to Utah sentencing provision r egar d ing concurrent sentences in case involving defendant subject to simultaneous sentence in Califo rnia). Our holding, moreover, does not at all foreclose the application of Utah ―adoption sta tutes‖ to a case involving ―non

- resident parents.‖ Infra ¶ 25. I nstead, as explained in Nevares , Utah adoption law remains intact and is properly applicable. See N evares , 2015 UT 34 , ¶ 49 & n.19. We simply construe section 111

— a ―law regulating sexual activ ity‖

— not to apply. Id . ¶ 49. And in its place we conclude that Pennsylvania law could be invoked, and that Utah adoption law would govern in all other respects. S ee id ; infra ¶ 18.

4 The dissent misperceives our analysis on this point. We reach no firm due process holding in Nevares ; our point is simply that the application of section 111 to conduct lacking any jurisdictional nexus to Utah would introduce serious d ue process concerns. 2015
UT 34 , ¶ 43. Our approach here is identical. Thus, we do not hold that that the extraterritorial application of section 111 violates the Due Process Clause, much less that ―the state of Utah may be u nable to make its own judgment as to whether Mr. Brooks‘s crime should disqualify him from intervening.‖ Infra ¶ 37 (Durham, J.,Cite as: 2015 UT 35
Opinion of the Court

7 ¶17 T his analysis suffices to reverse the district court‘s dete rmination in this case. Because section 111 has no application to Brooks‘s sexual activity in Pennsyl vania, the district court erred in denying his motion to intervene under this provision.

IV
¶18 We reverse and remand on the basis of the above concl usions. In so doing, we do not hold that Brooks‘s motion should have been granted. We simply conclude that Utah Code section 78B

- 6

- 111 should not be read to foreclose his parental rights. And b ecause we interpret section 111 not to apply to sexual conduct lacking any jurisdictional nexus to Utah, we need not and do not reach the substantive due process question add ressed by the di ssent. Infra ¶ 33

. ¶19 I n Nevares

, we acknowledged the existence of legal means other than section 111 for a birth mother or adoptive parent to seek to terminate a father‘s parental rights on the basis of sexual misconduct. 2015 UT 34 , ¶¶ 4 8

– 50

. W e concluded , specifically, that the law of the state in which a child was conceived c ould a pply insofar as it provides for the termination of parental rights of a

dissenting). Our holding is rooted in our interpretation of section 111. We leave for another day the question of the legislature‘s constitutional authority t o dictate the effect of criminal activity on a father‘s right to intervene. And, as explained below, we identify provisions of Pennsylvania and Utah law that may operate in ca ses, like this one, where section 111 is inapplicable. See infra ¶ 18;
Nevares , 2 015 UT 34 , ¶¶ 48

– 49 (articulating a choice of law basis for application of provisions of Utah law and of the state in which the father‘s sexual activity occurred).

5 The concurrence criticizes our approach

— of offering both an interpretation of the terms of section 111 and a constitutional avoidance argument as an alternative

— as somehow a ―disse rvice‖ to the ―legal community.‖ Infra ¶ 27. We see it differently. Alternative arguments have long been a standard convention in judicial opinions. They often aid in elucidating multiple points that combine to persuade the court of the basis for its conclusion. We present them in that spirit here.I N RE A DOPTION OF J.M.S. Opinion of the Court

8 father of a child conceived as a result of criminal misconduct. 6 Id

. ¶ ¶ 4 8

– 49 . Here the ap plicable law would be a Pennsylvania
statute, 23 P A

. C ONS

. S TAT

. § 2511 (2014)

. That prov i sion has not yet been invoked in this case, but we flag it as potentially applic able if the parties should wish to raise it on remand.
¶20 For this reason, we see no basi s for the dissent‘s conclusion that ―Mr. Brooks‘s sexual contact with J.M.S.‘s mother was a ser ious felony where it occurred.‖ Infra ¶ 33 . Brooks has never been afforded any due process on that matter. He pled guilty to a lesser offense in Pennsylvania. Bu t no court has ever determined whet her he committed an offense triggering 23 P A

. C ONS

. S TAT

. § 2511 ( 2014)

. We leave the matter for further proceedings on r e mand. And, if the parties raise this question, we note that the matter would be subject to proof by clear and convincing ev i dence. See Santosky v. Kramer , 455 U.S. 745, 756

– 57 (1982) (requi r ing proof of grounds for termination of parental rights by ―clear and convin cing evidence‖).

6 Our holding does not ―ignore[] the weighty interests at stake for the state of Utah‖ in an adoption proceeding, or forec lose the possibility of an amendment to section 111 aimed at protecting the interests identified by the dissent. Infra ¶ 36 . Our holding here and in Nevares is based purely in statutory interpretation. So we do not foreclose the legislature‘s right to legi slate in this important field. The legislature may make amendments as it sees fit

— subject, of course, to the limitations of the constitution (which we do not resolve conclusively in these cases).Cite as: 2015 UT 35
A.C.J. N EHRIN G , concurring

9 ¶21 In remanding

, we express no view as to the viability of any challenge r aised under the cited Pennsylvania provision. And we resolve no other issues and express no view as to any other grounds that respondents may advance in re sponse to Brooks‘s
motion or that may arise in any subsequent proceedings regar ding the adoption of t he child in question. 7

A SSOCIATE C HIEF J USTICE N EHRING , concurring in judgment : ¶22 I respectfully concur in the judgment only. I disagree with the majority‘s interpretation of Utah Code section 78B

- 6

- 111. I believe the statute is ambiguous and therefore I would use the doctrine of constitutional avoidance to hold that section 111 a pplies only to conduct committed in

- state.
¶23 First, unlike the majority, I do not believe the statute is elucidated by recourse to the expressio unius est exclusio alterius

canon. 8 The majority‘s strained use of that canon makes it abu n-

7 See, e.g., U TAH C ODE § 78B

- 6

- 133(1) (calling for assessmen t of ―whether proper grounds exist for the termination of . . . [pare ntal] rights‖ of a person ―whose consent for an adoption is r equired‖); id . § 78B

- 6

- 133(2)(b), (3) (if parental rights are not term inated, calling for ―an evidentiary hearing to determine who should have custody of the child‖ based on ―the child‘s best inte rest,‖ and considering ―evidence of psychological or emotional bonds that the child has formed with a third person, including the prospective adoptive parent,‖ and ―any detriment that a change in custody may cause the child‖); id . § 78B

- 6

- 133(5) (noting that a ―custody order entered pursuant to this section may . . . (a) i nclude provisions for: (i) parent

- time; or (ii) visitation by an inte rested third party; and (b) provide for the finan cial support of the child‖).

8 Because the relevant analysis in the instant case is incorp orated by reference but actually appears in a separate case that also issued today, Nevares v. M.L.S. , 2015 UT 34 , __ P.3d.__, I will cite
Nevares throughout. See sup ra ¶ 15 (―We reverse on the ground that section 111 does not apply in this case. This conclusion fo llows from our analysis in Nevares . . . . ‖); see also supra ¶ 16 (su m-I N RE A DOPTION OF J.M.S.
A.C.J. N EHRING , concurr ing

10 dantly clear that though antiquated latin maxims are sometimes ―useful guides,‖ they make very ―poor masters‖ and ―should not be regarded as having any such rigidity as to . . . distort an othe rwise natural meaning or intent.‖ 9 The statute states that it applies

to “ conduct

. . . described in [Chapter 5 , Part 4 of the Criminal Code]

, regardless of whether‖ such conduct is ―formally‖ charged or results in a ―convict[ion].‖ 10 The natural reading of th is la nguage is precisely the opposite of what the majority concludes. 11 In other words, the clearest way to read the statute as a whole is to
say that the relevant conduct need not be susceptible to a formal charge and need not result in a conviction. Sur ely the legislature did n o t add the ―convict[ion]‖ caveat in order to get at innocent fathers

— rather, it seems likely that they added that word to ind icate that the provision applies to conduct , separate and indepen dent of the requirements of criminal proc edure. Yet the majority cites the expressio unius canon to conclude that the ―regardless‖ clause somehow means that the conduct must meet every r equirement for a formal charge except that of actually being

marizing and incorporating the Nevares analysis, without add itional explanation).

9 S alt Lake City v. Salt Lake Cnty. , 568 P.2d 738, 741 (Utah 1977). See also B LACK ‘ S L AW D ICTIONARY 661

- 62 (9th ed. 2009) (―Several Latin maxims masquerade as rules of interpretation while doing nothing more than describing results reached by other means.
T he best example is probably expressio unius est exclusio alterius

, which is a rather elaborate, mysterious sounding, and anachroni stic way of describing the negative implication. Far from being a rule, it is not even lexicographically accurate , because it is simply not true, generally, that the mere express conferral of a right or priv ilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and som etimes it does not, and whether it does or do es not depends on the particular circumstances of context.‖ ( second emphasis added) (i n ternal quotation marks omitted)).

10 U TAH C ODE § 78B

- 6

- 111 (emphasis added).

11 See id. ; supra ¶ 15; Nevares , 2015 UT 34 , ¶ 32.Cite as: 2015 UT 35
A.C.J. N EHRING , concurring

11 charged. 12 This seems to me a highly unnatural wa y to read the statutory la n guage. ¶24 Canons of construction ―are not formulaic, dispositive indicators of statutory meaning. They are merely tools that guide our construction of statutes in accordance with common, ordinary usage and understanding of langua ge

. . . . ‖ 13 The majority e mploys expressio unius to read into the statute a requirement that ― all

matters sufficient to sustain a  ̳formal[] charge[]‘ or  ̳convict[ion]‘ must be established.‖ 14 I do not agree with that interpretation. I think the majority has placed more weight on the canon of expre ssio unius than the concept can reasonably bear. The majority‘s use of the expressio unius canon forces it to diverge significantly from the common, ordinary way one would read section 111, and I cannot agree w ith that analysis.
¶25 Second, I cannot join the majority in its analysis of the

― presumption against extraterritorial effect.‖ 15 While there may be a presumption against applying statutes extraterritorially, Utah Code section 78B

- 6

- 111 is not being applied ex traterritorially. It is being applied within the state of Utah to a Utah adoption pr oceeding. The majority‘s reasoning on this point strikes me as both unpersuasive and deeply concerning. The notion that Utah ado ption statutes are applied ―extraterritor iall y‖ when they are applied

to non resident parents is dangerous and inaccurate. We have long held that Utah adoption law properly controls an adoption within the state and I cannot join the majority‘s suggestion to the contrary. I also object, generally , to the idea that we should delve into the supposed ―backdrop‖ against which legislators make law. 16 Unlike the majority in this case and Nevares , I would not ascribe any ―intuitive sense‖ to the Utah Legislature, 17 but would instead rely on our well

- estab lished rules of statutory interpret a-

12 Supra ¶ 16; Nevares , 2015 UT 34, ¶ ¶ 30

– 32

.

13 Olsen v. Eagle Mountain City , 2011 UT 10, ¶ 19, 248 P.3d 465.

14 Supra ¶ 16 (alterations in original); Nevares , 2015 UT 34 , ¶ 30.

15 Nevares , 2015 UT 34 , ¶¶ 35

– 36; supra ¶ 16.

16 Nevares , 2015 UT 34 , ¶ 36; supra ¶ 16 (incorporating Nevares analysis).

17 Ne vares , 2015 UT 34 , ¶ 36.I N RE A DOPTION OF J.M.S.
A.C.J. N EHRING , concurr ing

12 tion, chief among which is that the ―best evidence of the legisl ature‘s intent is the plain language of the statute itself.‖ 18
¶26 Mr. Brooks d oes not directly address whether section
78B

- 6

- 111 applies to unwed fathers whose conduct in conceiving a child occurred outside of Utah , beyond stating that ―Pennsylvania law should apply‖

— a statement that enjoys no ―reasoned anal ysis‖ or relevant authority, 19 but on the basis of which the majority ―deem[s]‖ the issue both ―preserved‖ a nd ―adequately briefed.‖ 20 Though Mr. Brooks only barely raised the argument, the majority notes that ―appellees, in their brief, responded . . . at some length.‖ 21 In my view, it is not fair to allow an appellant to ―dump the burden of argument and rese arch‖ 22 on his opponent and the court. Though I would rea ch the question of section 111‘s applicability as necessary to the resolution of the case, I would not characterize this issue as preserved 23 or adequately briefed, b ecause it was neither.

18 Marion Energy, Inc. v. KFJ Ranch P’ship , 2011 UT 50, ¶ 14, 267 P.3d 863 (internal quotation marks omitted).

19 Hess v. Canberra Dev. Co. , 2011 UT 22, ¶ 25, 254 P.3d 161 (warning that to ―satisfy our adequate briefing requirement, ‖ a brief ―must go beyond providing conclusory statements and fully identify, analyze, and cite its legal arguments‖ (internal quotation marks omitted)).

20 Supra ¶¶ 10

– 11.

21 Supra ¶ 11.

22 Hess , 2011 UT 22, ¶ 25 (internal quotation marks omitted).

23 See Pat terson v. Patterson , 2011 UT 68, ¶ 12, 266 P.3d 828 (―An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on [it].‖ (alteration in original) (internal quotation marks
omi tted)). Because Mr. Brooks‘s due process argument was pr eserved, I would hold that we can address the question of Utah Code section 78B

- 6

- 111‘s applicability because it ―bears upon the ultimate resolution‖ of an issue that has ―properly been pr eserved‖ an d is thus ―necessary to a proper decision.‖ Id. ¶¶ 18, 20.Cite as: 2015 UT 35
A.C.J. N EHRING , concurring

13 ¶27 I would hol d that Utah Code section 78B

- 6

- 111 is ambi guous. When construing ambiguous statutes, we attempt to ―avoid interpretations that conflict with relevant constitutional ma ndates.‖ 24 This is a reflection of our duty to read ―validity, const itutionality and sen se‖ into an ambiguous statute, ―if possible.‖ 25
But we must employ the principle of constitutional avoidance cautiously. Over

- zealous use of constitutional avoidance runs the risk of trampling on the intent of the legislature. In other words, ―in the gui se of judicial restraint the Court ought not to intrude upon the other branches.‖ 26 Though a statute may present a ser ious constitutional problem, this alone ―ought not to drive [the court] to an incorrect interpretation of the statute.‖ 27 Therefore, the c onstitutional doubt rule must only be used when a statute is susceptible to competing constructions that are ―fairly possible

. ‖ 28 While I believe this is such a situation , I think the majority‘s use of the doctrine is inappropriate

. The doctrine poses a g reat risk of misuse, and should only be employed when the court finds that a statute is genuinely susceptible to two constructions

— but the m ajority does not do this. In my view, the majority should first acknowledge the statute‘s ambiguity and proceed wit h a constit utional avoidance analysis from there. The majority does the legal community a disservice by purporting to entertain two conflicting methods of statutory interpretation. 29 The statute is either ambi guous or it is not. I believe it is.

24 State v. Mooney , 2004 UT 49, ¶ 12, 98 P.3d 420 (internal quot ation marks omitted).

25 Munsee v. Munsee , 363 P.2d 71, 85 (Utah 1961); see also Utah State Rd. Comm’n v. Friberg , 687 P.2d 821, 831 (U tah 1984).

26 Zadvydas v. Davis , 533 U.S. 678, 705 (2001) (Kennedy, J., di ssenting); Utah Dep’t of Transp. v. Carlson , 2014 UT 24, ¶ 24, 332 P.3d 900 (―[F]or the constitutional avoidance canon to even apply, the statute must be genuinely susceptible to two constructions

. . . .‖ (internal quotation marks omitted)).

27 Zadvydas , 533 U.S. at 705

- 06 (Kennedy, J., dissenting)

.

28 Id. at 707 (internal quotation marks omitted).

29 I fail to see why the court would want to set out multiple mutually

- exclusive theories of statutory meaning in order to ―el u-I N RE A DOPTION OF J.M.S.
A.C.J. N EHRING , concurr ing

14 ¶28 There ar e two ways of viewing Utah Code section 78B

- 6

- 111. It could be read simply to apply to those who commit co nduct that meets the elements of any of the twelve listed ―sexual offenses‖ described in Chapter 5, Part 4, of the Utah Criminal Code. 30 But it could also be read to apply only to conduct that would actually be capable of prosecution as a crime in Utah. Section
111 states that [a] biological father is not entitled to notice of an adoption proceeding, nor is [his] consent . . . required
in cases where it is shown that the child who is the subject of the proceeding was conceived as a result of conduct which would constitute any sexual offense d escribed in Title 76, Chapter 5, Part 4, regardless of whether the biological father is formally charged with

o r convicted of a criminal offense. 31
Here, the word ―would‖

— which implies conditionality 32

— is a mbiguous. The use of ―would‖ could be read to indicate that the section applies to any father who conceives a child by way of the conduct listed in Chapter 5, Par t 4, wherever it occurs . But the word ―would‖ might have been included to reflect the fact that the statute applies to conduct that ―would‖ be a crime ―regar dless‖ of whether the father were formally charged and convicted in Utah

— and thus the statute migh t mean that the relevant ―co nduct‖ must at least be susceptible to formal charges in Utah,

cida t[e] multiple points that combine to persuade the court of the basis for its conclusion.‖ Supra ¶ 16 n. 5 . One correct theory is pe rsuasive enough. The court should simply ―say what the law is

, ‖ Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 (1803)

— not pr o vide three different theories of what the law might be

.

30 See U TAH C ODE §§ 76

- 5

- 401 to

- 415 (outlining twelve criminal sexual offenses, including ―unlawful sexual activity with a m inor,‖ ―rape,‖ ―rape of a child,‖ ―object rape,‖ ―forcible sodomy,‖ ―forci ble sexual abuse,‖ ―aggravated sexual assault‖ and other r elated crimes).

31 Id. § 78B

- 6

- 111 (emphasis added).

32 W EBSTER ‘ S T HIRD N EW I NT ‘ L D ICTIONARY 263 7

- 3 8 (1961) (d efining the word ―would‖ and explaining that it is used ―to express a contingency or a pos sibility‖).Cite as: 2015 UT 35
A.C.J. N EHRING , concurring

15 meaning it would have to occur either ―wholly or partly‖ in Utah

. 33 In other words, the statutory language can plausibly be read to apply to either (1) any conduct t hat simply fits the descri ptions contained in Chapter 5, Part 4 of the Utah Criminal Code, regardless of whe re that conduct occurred ; or (2) conduct that is actually capable of prosecution as a crime in Utah

, meaning co nduct which was committed wholly or p artly in the state of Utah

— regardless of whether the conduct was formally charged

. 34
¶29 I would hold that Utah Code section 78B

- 6

- 111 is ambi guous, and would thus proceed under the doctrine of constitutio nal avoidance to conclude that section 111 must be read to apply only to in

- state conduct. 35 If Utah Code section 78B

- 6

- 111 is read to apply to conduct that occurs outside of Utah, it poses a serious constitutional problem

. The Due Process Clauses of the Fifth and Fourteenth Amendment s ―impose [] constraints on governmental decisions which deprive individuals of  ̳liberty‘ or  ̳ property‘ i nterests.‖ 36 Individuals have a right to fair notice 37 and an oppo rtunity ―to be heard before being condemned to suffer grievous loss of any kind.‖ 38 Moreover, the more important the threatened interest, the more vigorous the procedural protection that is r equired under the law. The loss of one‘s children is one of the most ―grievous‖ losses a person can suffer, and indeed, it is ― plain b e-

33 U TAH C ODE § § 78B

- 6

- 111 , 76

- 1

- 201

. I believe this ambiguity stems from the phase ―would constitute.‖ As explained, I do not agree that the expressio unius canon has any relevance here.

34 See U TAH C ODE § 76

- 1

- 201(5)(c) (explaining that the ―b urden is upon the state to initially establish jurisdiction over [a criminal] offense . . . by showing . . . the offense was committed either who lly or partly within the borders of the state‖).

35 To that extent, I agree with the majority in this case and Nevares , that a ―serious due process question[] would arise‖ if
Mr. Brooks‘s parental rights were to be forfeited by section 111.
Nevares , 2015 UT 34 , ¶ 41; see supra ¶ 16.

36 Mathews v. Eldridge , 424 U.S. 319, 332 (1976).

37 See Mullane v. Cent

. Hanover Ban k & Trust Co. , 339 U.S. 306, 314 (1950)

.

38 Mathews , 424 U.S. at 333.I N RE A DOPTION OF J.M.S.
A.C.J. N EHRING , concurr ing

16 yond the need for multiple citation‖ that a parent‘s interest in his or her children is ―far more precious than any property right.‖ 39
¶30 Because an unwed father‘s act of engaging in sexual conduct in his home state is almost certainly done without notice that he will be subject to the adoption laws of an other state, I b elieve that section 111 poses a serious due process problem if it is applied to such out

- of

- state fathers , especially where section 111 simply cuts off the father‘s parental rights . Mr. Brooks, for exa mple, commit ted criminal conduct under Pennsylvania law when he engaged in sexual intercourse with the child‘s mot her; howe ver, under Pennsylvania law it appears that he may still have been able to intervene in a subsequent adoption proceeding, despite the criminal circumstances of the c onception. 40 Thus, under the law of Pennsylvania

— the only state whose laws he had notice would be applied to him, Mr. Brooks‘s parental rights were not for eclosed at the threshold as they would be under section 111 in Utah. Recognizing the fundamental nat ure of the parental right , I would avoid such problems by adopt ing the second, equally

39 Santosky v. Kramer , 455 U.S. 745, 758

– 59 (1982) (internal qu otation marks omitted)

.

40 See 23 P A

. C ONS

. S TAT

. § 2711 (a) ( 20 1 4) (stating that ―co n sent to an adoption shall be required o f . . . [ t ] he parents or survi v ing parent of an adoptee who has not reached the age of 18 years‖) ; id. § 2714 (― C onsent of a parent to adoption shall not be required . . . if, after notice and hearing [,] . . . the court finds that grounds exist for involun tary termination

. . . . ‖); id. § 2511 (a)(7) ( 201 4 ) (grounds for involuntary termination i n clude when ―the parent is the father of a child conceived as a r esult of a rape or incest‖); 18 P A

. C ONS

. S TAT

. § 3121 (a) (20 14 ) (defining rape as sexual intercourse ―by fo rcible compulsion,‖ ―threat of forcible compu l sion,‖ or when the person is unconscious, substantially impaired, or mentally dis abled); id § 3122.1 (a) ( 201 4 ) (defining ― [ s ] tatutory se x ual assault‖ and explaining that ― [e]xcept as provi d ed in section 3121 (relating to rape) , a person commits a felony of the second d e gree when that person engages in sexual intercourse with a complai n ant to whom the person is not married who is under the age of 16 years and that person is . . . four years older but less than eight years older than the complainant‖ (e m phasis added)).Cite as: 2015 UT 35
A.C.J. N EHRING , concurring

17 plausible interpretation of section 111 and holding that it applies only to conduct within Utah.
¶31 I disagree with the majority‘s interpretation of Utah Code section 78B

- 6

- 111. Because I believe the statute is ambig uous, I would analyze it under the doctrine of constitutional avoi dance. Accordingly, I respectfully concur in the judgment o n ly.

J USTICE D URHAM , dissenting:
¶32 As I explained in my concurrence in Nevares v. M.L.S.

, Utah Code section 78B

- 6

- 111 applies to all fathers whose paternal rights are based on a sex crime, regardless of whether they are subject to Utah‘s criminal jurisdiction. 2015 UT 34 , ¶¶ 53

– 84

,

__ P.3d __ (Durham, J., concurring in the result). It therefore a pplies to Mr. Brooks.
¶33 However, unlike the conduct of the father in Nevares
, Mr. Brooks‘ s sexual contact with J.M.S.‘s mother was a serious felony where it occurred. 18 P A

. C ONS

. S TAT

. § 3122.1 (2014) (ma king statutory sexual assault a se cond

- degree felony when the pe rpetrator is between four and eleven years older than the victim). For this reason, he cannot appeal to the same constitutional do ctrines that protected the father in Nevares . As the Seventh Circuit explained in Peña v. Mattox
, [N] o court has gone so far as to hold that the mere fact of fatherhood, consequent upon a criminal act

. . . [and] not cemented . . . by association with the child, creates an interest that the Constitution pr otects in the name of liberty.

. . . The crim inal does not acquire constitutional rights by his crime other than the procedural rights that the Constitution c onfers on criminal defendants. 84 F.3d 894, 900 (7th Cir. 1996). Thus, denying Mr. Brooks the right to contest J.M.S.‘s adoption does not infri nge any of his co nstitutionally protected liberties and, therefore, does not violate the Due Process Clause.
¶3 4 The majority disagrees, suggesting that it may violate the Due Process Clause for Ut ah‘s criminal law to punish Mr. BrooksI N RE A DOPTION OF J.M.S.
J. D URHAM , dissenting

18 for the sexual assa ult he committed in Pennsylvania. Supra ¶ 16 &

nn. 3

– 5 . This is correct and entir ely sensible. Criminalizing
Mr. Brooks‘s conduct, and punishing it, involved a host of diff icult policy decisions: where to set the age limits on statutory rape, what penalty s tatutory rape should carry , whether people in
Mr. Brooks‘s circumstances should be prosecuted, and what sort of plea deals they should be offered. Because Mr. Brooks‘s crime took place in Pennsylvania and affected

— at the time

— primarily citizens of Pennsylv ania, these policy decisions rightfully belong to Pennsylvania.
¶35 But we are not deciding whether Mr. Brooks should be punished for the sexual assault he committed in Pennsylvania. R ather, we are deciding whether Mr. Brooks has a right to contest J.M.S. ‘s adoption, and this decision involves a very different set of policy questions. Should a father like Mr. Brooks be barred from contesting an adoption because of any sexual offense, or merely because of a violent one? Should an actual conviction be requir ed to foreclose his rights, or is it sufficient for the adoption court to find, by clear and convincing evidence, that his paternal rights rest on criminal conduct? What if he is convicted of a misdemea nor on a plea bargain, as Mr. Brooks was here, but the undisputed facts clearly satisfy the elements of a serious felony?
¶36 The majority seems to suggest that, as a matter of const itutional law, all of these policy decisions must belong to Pennsy lvania because that is where Mr. Brooks committed his crime. But in doing so, it ignores the weighty interests at stake for the state of Utah. Usually, a father like Mr. Brooks will be just one of four pa rties whose lives would be forever changed by an adoption: the f ather, the mother, the would

- be adoptive parents, and the child. At the time of the adoption proceedings, at least two of these pa rties

— the adoptive parents and the child

— will usually be citizens of Utah, and frequently the child‘s mother will have become a Utah citizen as well. Further, the adoption pro ceedings will be taking place in a Utah court, and they will usually involve a Utah adoption agency that also has an interest in the outcome.
¶37 But according to the majority, despite the immense i mportance of this adoption to these Utahns, the state of Utah may be unable to make its own judgment as to whether Mr. Brooks‘s crime should disqualify him from intervening. Rather, it must simply accept the judgment of the Commonwealth of Pennsylv a-Cite as: 2015 UT 35
J. D URHAM , dissenting

19 nia

— no matter how repugnant that judgment might be to the people of Utah, and no matter that Pennsylvania has no more j urisdiction over the adoption of J.M.S. than Utah had over the prosecution of Jacob Brooks.
¶38 The legislature‘s manifest intent in section 111 was to pr otect people like J.M.S. and J.M.S.‘s mother f ro m fathers like
Mr. Brooks. If Mr. Brooks had a constitutionally protected liberty at stake, the Due Process Clause would restrict the legislature‘s ability to carry out its intent

— procedural due process would guarantee Mr. Brooks notice and a hearing, an d substantive due process would limit the legislature‘s power to cut off his paternal rights. But Mr. Brooks has no such liberty at stake, so nothing prevents the legislature‘s will from being carried out. Mr. Brooks should be barred from intervening in th is adoption.