This opinion is subject to revision before final publication in the Pacific Reporter.

2013 UT 44

I N T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————

— S TATE OF U TAH , Plaintiff and Appellee

,

v.

R E I NALDO C ANTON , Defendant and Appellant

.

——————

— No. 20110835 Filed July 23 , 2013

——————

— Third District

, Salt Lake The Honorable Robin W. Reese No. 09190587

——————

— Attorneys:
John E. Swallow

, Att‘y Gen., John J. Nielsen, Asst. Att‘y Gen.,

Salt Lake City, for appellee

Peter Daines

, Salt Lake City , for appellant

——————

— J USTICE L EE authored the opinion of the Court, in which C HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE N EHRING , J USTICE D URHAM , and J USTICE P ARRISH joined

.

——————

—

J USTICE L EE , opinion of the Court : ¶1 Re i naldo Canton was arrested i n Utah in April 2007 and indicted on federal charges of coercion and enticement of a fi fteen

– year

- old girl. Canton , a New Mexico resident, was released and return ed to New Mexico to await trial

. He remained there pending trial for over two years , though he return ed to Utah on a few occasions to attend proceedings in federal court

. A fter the federal charges were dismissed in May 2009 , Canton was charged by the State of Utah with enticement of a minor under Utah Code

sec tion 76

- 4

- 401

. ¶2 Canton moved to dismiss the charge based on the applic able two

- year statute of limitations

. In so doing

, he disputed the applicability of our criminal tolling statute, which tolls the limit a-S TATE v. C ANTON

O pinion of the Court

2 tions period while a criminal defendant is ―out of the state

. ‖ S ee U TAH C ODE § 76

- 1

- 304 (1 )

. In Canton‘s view, this provision was inapplicable because he was ―legally pre s ent ‖ in Utah during the course of the federal court proceedings , in that he cooperated with federal authorities and appeared in various proceedings in the federal district court

. Canton argued in the alternative that appl ication of the tolling provision vi olated the Uniform O peration of
L aws provision of the Utah Constitution. The district court denied Canton‘s motion. Canton filed this appeal.
¶3 We affirm. The criminal tolling statute applies to Canton because its text leave s no room for his notion of ―legal presence

. ‖ And applying the sta tute to Canton does not run afoul of the U n iform O peration Clause , as Canton fails to show how any classif ication under the statute discriminates against him in an impe rmissible manner

. I
¶4 In March 2007

, Re i naldo Canton , a New Mexico resident, began corresponding online with an undercove r federal agent posing as a fifteen

- year

- old girl. Canton engaged the agent in se xually

- explicit conversation and ultimately arranged to meet the

― girl ‖ for sex at the Layton Hills Mall in Utah. When Canton a rrived at the mall on April 11, 2007

, FBI agents and representatives of the Utah Internet Crimes Against Children Task Force arrested
Canton. Soon thereafter, federal officials charged Canton with c oercion and enticement for ille gal se xual activity under 18 U.S.C. § 2422(b). On April 19, 2007, a federal magistrate in Utah released Canton and allo wed him to return to New Mexico to await trial on the federal charges.
¶5 During the course of the next fifteen months, federal off icials i n New Mexico monitored Canton and reported to their counterparts in Utah. Canton cooperated with the investigation against him and traveled several times from New Mexico to Utah to attend proceedings in federal district court

. On July 29, 2008,
Canton suffered a n aortic dissection (a tear in a large blood vessel branching of f of the heart) , which required surgical intervention

. Thereafter, Canton claimed he was too ill to continue travel ing to Utah and filed a motion to dismiss based on his deteriorati ng health. The federal court granted this motion without prejudice on
Ma y 14, 2009

.Cite as: 2013 UT 44 Opinion of the Court

3 ¶6 Less than two months later, on June 30, 2009, the State of Utah charged Canton with enticement of a minor under Utah Code section 76

- 4

- 4 0 1 . The state charge was based on the same 2007 conduct that led to the filing of federal charges

. ¶7 Canton moved to dismiss under the two

- year statute of limitations applicable to the enticement charge, Utah Code section
76

- 1

- 302

. The district court denied the motion, concluding that the li mitations period had been tolled under Utah Code section 76

- 1

- 304(1) because Canton had been ―out of the state‖ in New Mexico during the course of the federal prosecution against him. In den ying the motion, the district court rejected Canton‘s assertion th at his ―legal presence‖ in Utah foreclosed application of the tolling provision. It also upheld the applicability of that provision against Canton‘s challenge under the Uniform Operation Clause of the Utah Constitution. Canton entered a conditional guilty plea

, r eserv ing his right to challenge the application of the tolling statute on appeal

. II
¶8 Canton contends that the district court erred in applying

our criminal tolling provision, which tolls the statute of limit ations while a criminal defendant is ―out of the state,‖ see U TAH C ODE § 76

- 1

- 304 (1) . While Canton concedes that he was in New Mexico during the course of the federal prosecution, he offers two grounds for overcom ing the tolling provision

. H e first asserts that the tolling statute is inapplicable as long as a defendant m aintains a ―legal presence ‖ within the state. I n the alternative, he argues that application of the tolling provision violates the ―uniform o peration‖ of laws provision in article I, section 24 of the Utah Co nstitu tion.
¶9 Both points turn on questions of law, which we review for

correctness. See Manzanares v. Byington ( In re Adoption of Baby B. ), 2012 UT 35, ¶ 41, __ P.3d __. We reject both of Canton‘s arg uments and accordingly affirm.

A. Statutory Construction of ―Out of the State‖
¶10 Under our criminal tolling statute

, ―[t]he period of limit ation does not run against any defendant during any period of time in which the defendant is out of the state following the commi ssion of an offense.‖ U TAH C ODE § 76

- 1

- 304 (1)

. The question before us concerns the meaning of the phrase ―out of the state.‖ BothS TATE v. C ANTON

O pinion of the Court

4 sides agree that Canton was physically ―out of the stat e‖ (in New Mexico) for most of the two years in which the limitations pe riod is claimed to have run. Yet they disagree about the significance of that fact.
¶11 For the State

, Canton‘s physical presence in New Mexico is dispositive, as it reads ―out of the state‖ to refer to a defendant‘s abs ence from the state‘s territorial bound aries . Canton sees the matter differently. He interprets ―out of the state‖ to refer to a more abstract construct. In his view a person is not ―out of the state‖ if he is subject to its legal authority

— in the sense of coope rating with f ederal officials inv estigating criminal charges in Utah and appearing at federal court proceedings there

. Thus, for Ca nton the notion of ―out of the state‖ refers not to the state‘s physical boundaries but its sovereign power. For him a person is not ―out of the state‖ if he remains subject to its sovereign authority.
¶12 We read the statute as the State does. We interpret ―out of the state‖ to focus on the question of a person‘s physical pre sence within the state‘s territorial boundaries. Thus, we reject Canton‘s abstract constru ct of legal presence, both as a matter of (a) the ―o rdinary meaning‖ of statutory language consisting of ― common, daily, nontechnical speech

, ‖ Olsen v. Eagle Mountain City , 2011 UT 10, ¶ 9 , 248 P.3d 465 (internal quotation marks omitted) , and (b) under the possibility that the statute may employ a ―legal term of

art

. . . with a settled meaning in the law,‖ Hansen v. Hansen , 2012 UT 9, ¶ 19 , 270 P.3d 531

.

1. Ordinary Meaning of ―Out of the State‖
¶13 In determining the ordinary meaning of nontechnical terms of a statute, our ―starting point‖ is the dictionary. See Hi

- Country Prop. Rights Grp

. v. Emmer , 2013 UT 33, ¶ 19 , __ P.3d __ . ―A di ctionary is useful in cataloging a range of possible meanings that a statutory term may bear.‖ Id . (citing H ENRY M. H ART , J R ., A LBERT M. S ACKS , T HE L EGAL P ROCESS : B ASIC P ROBLEMS IN THE M AKING

AND A PPLICATION OF L AW 1375

– 76 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994) [hereinafter H ART & S ACKS ] ). ―It pr ovides  ̳an historical record, not necessarily all

- inclusive, of the meanings which words in fact have borne.‘‖ Id . (quoting H ART &
S ACKS , at 1190). ―Such a record, however, will often fail to dictate  ̳what meaning a word must bear in a particular context.‘‖ Id

. (quoting H ART & S ACKS , at 1190) . ―That question will often requireCite as: 2013 UT 44 Opinion of the Court

5 further refinement

— of selecting the best meaning among a range of options, based on other indicators of meaning

. . . . ‖ Id

. ¶14 This is one of those cases where the dictionary fails to di ctate the meaning that the statutory terms ―must bear‖ in this co ntext. The operative phrase has two component parts

— a function

term ( ―out of‖ ) and its object ( ―the state‖ ). And dictionary defin itions of both sets of terms leave the statute semantically op en to both parties‘ interpretations.
¶15 T he phrase ―out of‖ is used ― as a function word ‖ in a range of different senses. W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1603 ( 2002 ). One sense ―indicate[s] direction or movement from an enclosed space to the outside,‖ or ―direction, motion, or distance from a . . . starting point.‖ Id. To illustrate this meaning, the dictionary lists examples of a child who ―fell out of the crib,‖ a person who ―took his hands out of his pockets,‖ or one who ―hit the ball out o f the park.‖ Id. This sense of ―out of‖ seems in line with the State‘s construction of the tolling statute. It co nnotes relational movement from a certain baseline, typically a physical one.
¶16 That said, th is definition does not exclude the possibility of

a metaphysical ―space‖ or ―starting point‖ from which something moves ―out of.‖ And some common uses of the phrase unque stionably have a n abstract referent. An argument can be ―out of bounds‖ by dint of its exceeding the governing rules of propriety and not any physical bou ndary , just as a technical advancement

can be ―out of this world‖ in a figurative sense without the assi stance of space travel. So this dictionary meaning of ―out of‖ is i tself insufficient to resolve the interpretive question before us.
¶17 And the dictionary also includes another definition that is more clearly in line with Canton‘s position. ―Out of‖ is also used ―as a function word to indicate removal or situation away from the effective action of some faculty or agency. ‖ Id . Here, more ove r, the listed examples expressly encompass ―removal‖ from an abstract ―faculty or agency,‖ as in ―the ships fled out of range,‖ ―he

was soon out of sight,‖ and ― out of hearing.‖ Id . Thus, the dictio nary‘s range of meanings for ―out of‖ give no basis for li miting the statutory phrase to either physical or abstract absence; both co nstructs fall within standard dictionary definitions.S TATE v. C ANTON

O pinion of the Court

6 ¶18 Dictionary definitions of ―the state‖ are similarly indete rminate. The referenced ―state‖ could certainly be the physical te rri tory of the State of Utah, marked by its legal borders. Id

. at 2228 (defining ―state‖ to include ―a territory‖ governed by a particular nation or sovereign). But the ―state‖ is also defined as an abstract authority

— as in ―the operations, activities, or affairs of the go vernment or ruling power of a country: the sphere of administr ation and supreme political power of a government,‖ or ―the e mbodiment of the ethical idea and the moral will of the commun ity.‖ Id

. ¶19 The State‘s notion of ―out of the state‖ par takes of the first definition listed above. A person can be said to be ―out of the state‖ in the sense of being physically outside of its territorial boundaries. But the latter definitions are in line with Canton‘s construction. A person could be said to b e ―out of the state‖ in the sense of being removed from its political power or sphere of i nfluence.
¶20 Dictionaries are accordingly insufficient by themselves to resolve the interpretive task before us. We must look elsewhere to determine the o rdinary meaning of the language of the tolling

statute. Specifically, we must look beyond the dictionary defin itions of the component terms of the statute to consider the ord inary meaning of the complete statutory phrase, ―out of the state.‖ 1

1 See John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts , 113 Y ALE L.J. 1663, 1704 (2004) (―[O]ne can properly attribute to legislators the reasonable minimum i ntention  ̳to say what one would ordinarily be understood as sa yin g, given the circumstances in which it is said.‘ This principle, it should be noted, does not direct interpreters to follow the literal or dictionary meaning of word or phrase. To the contrary, it d emands careful attention to the nuances and specialized co nnot ations that speakers of the relevant language attach to particular words and phrases in the context in which they are being used.‖ (internal quotation marks omitted) ); Cabell v. Markham , 148 F.2d 737, 739 (2d Cir. 1945) (L. Hand, J.) (―Of course it is true that the words used, even in their literal sense, are the primary, and ord inarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one ofCite as: 2013 UT 44 Opinion of the Court

7 ¶21 A first resort for se lecting among a range of meanings left open by the dictionary is the struct ure and context of the statut ory language

. See Olsen , 2011 UT 10, ¶ 12. In Olsen we interpreted the

terms of Utah Code section 63G

- 7

- 202, a provision calling for r eimbursement of at torney fees incurred by a government employee when the request is ―filed in the manner‖ provided in other se ctions of the code. Id. ¶ 6. We noted that dictionary definitions of ―manner‖ encompassed both of the alternative constructions pro ffered by the parties

— that under ―[c]ommon dictionary definitions of the term  ̳manner‘ arguably could encompass just the form of an employee‘s written request

, ‖ or the term ―could be construed

. . . to encompass the timing requirements set forth in‖ the code. Id

. ¶ 12 ( footnote omitted). Yet we explained that ―[t]he fact that the statutory language may be susceptible of multiple meanings does not render it ambiguous,‖ as ― ̳all but one of the meanings is ord inarily eliminated by context.‘‖ Id . ¶ 13 (quoting Deal v. United
States , 508 U.S. 129, 131

– 32 (1993). And in Olsen we found that one of the meanings of ―manner‖ was eliminated by the context of se ction 63G

- 7

- 202 , as the latter notion of ―manner‖ could not be adopted ―without undercutting the express language‖ of the st a tute. Id . ¶ 18. So we adopted the former notion of ―manner‖ as the one ―more consistent with the language and structure of the stat utory scheme.‖ Id

. ¶22 Canton purports to find a parallel ground for his constru ction of our criminal tolling statute. He insist s that the State‘s n otion of physical presence ―contradicts the legislative purpose of the statute,‖ which in his view is to preserve the ―balance between an individual‘s interest in repose and the State‘s interest in having sufficient time to build its ca se.‖ And in light of his full cooper ation with federal authorities during the pendency of the federal case against him here, Canton insists that the State‘s side of the ledger was a null set , as the State had ―sufficient time to invest igate its case and file charges, notwithstanding [his] absence from the state.‖ Thus, Canton asks us to dismiss the State‘s construction as incompatible with the purpose of the criminal tolling provision as he sees it.

the surest indexes of a mature and developed jurisprudence not to make a fortress out of the diction ary . . . . ‖)

.S TATE v. C ANTON

O pinion of the Court

8 ¶23 Canton‘s position falters in its premi se. The tolling statute, like most legislative enactments, is multi

- dimensional in its pu rpose. See VCS, Inc. v. Utah Cmty. Bank , 2012 UT 89, ¶ 20, 293 P.3d 290 (dismissing a legislative purpose argument as a ―vast over

simplification

, ‖ noting that ―most l egislation . . . is not aimed at advancing a single objective at the expense of all others, but i nstead is a result of a legislative give

- and

- take that balances mult iple concerns‖ (internal quotation marks omitted)). Undoubtedly it is aimed at balancing th e concerns that Canton identifies. But it also i mplicates other considerations, chief among them a concern for certainty. 2
¶24 Certainty is at a premium in this area. The time

- preclusive effect of a statute of limitations is strong medicine. It cuts off a
pres umptively viable claim on the sole basis of the passage of time. Thus, our statute of limitations jurisprudence is aimed not only at balancing repose on one hand and an opportunity to pr epare a case for filing on the other, but also at fostering certainty and avoiding unfair surprise. 3 The tolling statute must also be understood to advance that con cern. And that concern is a dvanced by the State‘s objective notion of physical presence

— and undercut by Canton‘s more abstract construct

— in that the latter
approa ch would require subjective, case

- by

- case weighing of fa ctors informing the degree to which an individual may be ―pr esent‖ in the state in the sense of being subject to its authority. For these and other reasons, 4 we cannot properly reject the State‘s p o-

2 See Jacobs v. Hafen , 917 P.2d 1078, 1081 (Utah 1996) ( explaining that a statute of limitations ― must be fixed so that parties can o rder their affairs with predictability ,‖ an d that ― parties need a time certain within which they can assert their ownership rights‖)

.

3 Id. ; see also Johnson v. Nedeff , 452 S.E.2d 63, 67

– 68 (W. Va. 1994) (rejecting a request to read an equitable exception into a statute of limitations because ―[d] efendants have a right to rely on the ce rtainty the statute provides, and adoption of the rule plaintiff urges would destroy that certainty,‖ which would be out of keeping with ―the legislative intent underlying such provisions‖).

4 Canton‘s argument also fails even under the more narrow sta tutory purpose that he identifies. The State may have had suff icient time to investigate and press charges during the pendency of the federal charges. But that does not exhaust its legitimate law

enforcement interest in considering charges against an out

- of

- stateCite as: 2013 UT 44 Opinion of the Court

9 si tion

— or endorse Canton‘s

— on the ground that only Canton‘s advances the purpose of the criminal tolling statute.
¶25 We must accordingly look elsewhere to select from the range of meanings left open by the dictionary. Here we can do so by moving beyond the comp onent terms of the statute

— ―out of‖ and ―state‖

— and considering the full phrase in its entirety. See FCC v. AT&T, Inc. , 131 S.Ct. 1177, 1183 (2011) (noting that ―two words together may assume a more particular meaning than those words in isolation‖).
¶26 Dictionaries typically define only individual words, not e xtended phrases. So we cannot look up ―out of the state‖ in a di ctionary. But that does not foreclose the possibility of identifying
its ordi nary meaning . We can do so by considering the way the ful l phrase is typically used in common parlance

. 5

defendant subject to pending federal charges. S tate officials could rationally determine to await the outcome of the federal prosec ution to decide whether to pursue parallel state charges

— as an out

of

- state defen dant could be seen as a lesser threat than an in

- state one, particularly in circumstances where the anticipated federal penalty might effectively vindicate the state‘s concerns for pr otec t ing the interests of its citizens.

5 See Carranza v. United States

, 2011 UT 80, ¶ 24, 267 P.3d 912 (plurality opinion of Lee, J., joined by Durrant, J.) (interpreting ―minor child‖ in Utah Code section 78

- 11

- 6 to include a fetus based, in part, on the fact that ―the term  ̳child‘ is used extensively in the popular press to refer to the unborn‖); id . ¶ 35 (dissenting opinion of Nehring, J.) (asserting the need for ―caution against overreliance on dictionaries‖ and asserting that ―since 1851, the term  ̳minor child‘ has appeared in the pages of the [ New York ]
Times 2,866 times without ever referring to a fetus‖); see also Mu scarello v. United States , 524 U.S. 125, 129 (1998) (interpreting federal sentencing enhancement for one who ―carries a firearm‖ in rel ation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), in light of results of online search of ―computerized newspaper databases,‖ which included ―thousands o f . . . sentences‖ using the phrase to ―convey the meaning at issue here, i.e. , the carrying of guns in a car‖) ; United States v. Costello , 666 F.3d 1040, 1044 (7th Cir. 2012) (interpreting the crime of ―habor[ing]‖ an illegal alien under 8 U.S.C. § 1324(a)(1)(A)(iii) in light of results of a Google search ofS TATE v. C ANTON

O pinion of the Court

10 ¶27 Here that inquiry confirms the State‘s construction of the tolling statute and rules out Canton‘s. When the phrase ―out of the state‖ is used in its full context, it refers to the physical territ ory of a stat e, not its political power or influence. 6 So although Ca nton‘s construction is semantically plausible based on dictionary definitions of ―out of‖ and ―the state,‖ it cannot be reconciled with the uniform understanding of the extended statutory phrase ―out of the state.‖ That phrase is not used in the way that Canton co nstrues it, and we reject it on that ground.

2. ―Out of the State‖ as a Legal Term of Art?
¶28 That leaves the question whether the tolling statute‘s la nguage may consist of a legal term of art. T he legislature is entitled to invoke specialized legal terms that carry an extra

- ordinary meaning. And when it does so we credit the legal term of art, not the common understanding of the words. See Hansen , 2012 UT 9, ¶ 19. Thus, ―when a word or phrase is  ̳transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.‘‖ Maxfield v. Herbert , 2012 UT 44, ¶ 31, 284 P.3d 647 (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes , 47 C OLUM

. L. R EV

. 527, 537 (1947) )

. Canton reads the criminal tolling provision to incorporate a term of art ―transplant‖ from our caselaw. Citing cases decided under our civil tolling statutes, Snyder v. Clune , 390 P.2d 915 (Utah 1964); Lund v. Hall , 938 P.2d 285 (Utah 1997), he asserts that our law has adopted a principle of ―legal‖ presence for tolling purposes

— a

the term ―harboring‖ in connection with terms like ―fugitives‖ and ―refugees,‖ and noting that the r esults show that the word as ―actually used‖ in th is context ―has a connotation . . . of delibe rately safeguarding members of a specified group from the autho rities‖).

6 This conclusion is based on results of a Google News search, http://news.google.com, considering 150 instances in which the phrase ―out of the state‖ was used in news stories published in May 2013

— 27 of which involved references to the relationship b etween a person and the state. Not one of those 27 relevant refe rences use ―out of the stat e‖ in a manner involving absence of a person from the legal authority or influence of a state. Every si ngle one of them makes unequivocal reference to the physical co nfines of a state.Cite as: 2013 UT 44 Opinion of the Court

11 principle purportedly incorporated by reference in the criminal

t olling provision at issue here.
¶29 Canton reads too much into Snyder and Lund

— and not enough into the operative text of the criminal tolling statute. Snyder , to be sure, interpret ed the text of the civil tolling provision in light of t he ―objective of the statute‖

— of ―prevent[ing] a d efendant from depriving a p laintiff of the opportunity of suing him by absenting himself from the state during the period of limit ation.‖ 390 P.2d at 916. And in light of that purpose the Snyder court held that a nonresident motorist defendant who had by law appointed the Secretary of State as his agent for service of process was ―not  ̳absent‘ from the state in the sense contemplated‖ by the civil tolling statute. Id . (quoting the 1953 version of the civil tolling provision, U TAH C ODE § 78

- 12

- 35, in light of the nonresident m otorist act, U TAH C ODE § 41

- 12

- 8 ); see also Lund , 938 P.2d at 289 ( i nterpreting the then

- applicable civil tolling statute, U TAH C ODE § 78

- 12

- 35, in light of the nonresident motor vehicle act, U TAH C ODE 41

- 12a

- 505) . But Snyder and Lund do not evidence a firmly rooted, omnibus notion of legal ab sence in our statute of limit ations jurisprudence. As we explained in Olseth v. Larsen, 2007 UT 29, 158 P.3d 532, these cases are based on a narrow construction of the unique terms of the civil to lling statute in a narrow band of cases (under the N onresident Motor Vehicle Act). Id. ¶¶ 29

– 36.
¶30 Olseth conside red a question certified to us by the T enth
C ircuit Court of Appeals : ―Is the statute of limitations tolled u nder [the general civil tolling statute] when a person against whom a claim has accrued has left the state of Utah and has no agent within the state of Utah upon whom service of process can be made instead, but the person is amenable to service pursuant to Utah‘s long arm statute[?]‖ Id. ¶ 1. We held that the statute was tolled , and in so doing rejected the invitation to adopt a broad reading of Snyder and Lund

. ¶31 Our Olseth opinion emphasiz ed that Snyder and Lund were driven by the terms of the N onresi dent Mo tor Vehicle A ct

— specifically, by the provision calling for appointment of the Secr etary of State as agent of a nonresident motorist for service of pr ocess

. Id. ¶ ¶ 29

– 36. Thus, in Olseth we explained that ―the defen dants in th [o]se cases [were] not  ̳absent‘ from the state because their agent [was] present and service [could] be effected within the state.‖ Id . ¶ 29 (emphasis added) . At the same time, we declinedS TATE v. C ANTON

O pinion of the Court

12 to extend this principle to other cases (not implicating the Nonre sident Motor Vehicle Act). For ―cases not involving a statutorily appointed agent, or not involving an agent within Utah,‖ we adopted a notion of physical (not legal) presence; we held that ―an

out

- of

- state defendant is deemed  ̳absent‘ from the state and th e tolling statute tolls the applicable statute of limitations.‖ Id

. ¶32 Olseth thus disproves the term

- of

- art notion of legal pre sence advocated by Canton. It indicates that we do not have an omnibus rule tying tolling to a person‘s susceptibility to service of process. And it also defeats Canton‘s position in this case, as Ca nton does not and cannot contend that he had an agent for service of process in Utah

— on ly that he was loosely subject to the autho rity of the State as evidenced by his cooperation in the federal pr oceedings against him. That is insufficient under our law, which leaves no room for the construction that Canton attributes to the criminal tollin g provision.

B . Constitutionality of the Tolling Statute
¶33 Our only remaining task is to consider Canton ‘s challenge

to the constitutionality of the tolling statute ‘s application in this case. His challenge arises under article I, section 24 of the Utah
Con stitution , the Uniform Operation Clause.
¶34 Th at clause requires that ―[a]ll laws of a general nature shall have uni form operation

. ‖ U TAH C ONST

. art I, § 24

. Historica lly, uniform operation provisions were understood to be aimed not at legislative classification but at practical operation

. 7 Thus, a t the

7 See G. A LAN T ARR , U NDERSTANDING S TATE C ONSTITUTIONS 197

– 9 9 (1998) ( explaining that uniform operation provisions were not understood historically as ― mini ature equal protection clauses‖ regulating legislative classifications, but as protection against the ―creation of special privileges or exemptions‖ in the operation or

a pplication of general laws ) ; R OBERT F. W ILLIAMS , THE L AW OF A MERICAN S TATE C ONSTITUTIONS 209

– 13 (2009) ( noting that un iform operation clauses originally reflect ed an ―opposition to f avoritism and special treatment for the powerful,‖ and explaining that ―[a ]lthough these provisions may seem to overlap somewhat with federal equal protection doctrine, closer scrutiny reveals si gnificant differences,‖ in that such state provisions do ―not seekCite as: 2013 UT 44 Opinion of the Court

13 time of the ratification of the Utah Constitution, parallel prov isions in other sta te constitutions were not viewed as a limit on the sorts of classifications that a legislative body could draw in th e first instance, but as a rule of uniformity in the actual application of such classifications

— a requirement of consistency in applic ation of the law to those f alling within the classifications adopted by the legislature, or in other words a prohibition on special priv ileges or exemptions therefrom

. 8
¶35 The modern formulation of uniform operation is different. It treats the requirement of uniform operation as a state

- law cou nterpart to the federal Equal Protection Clause. Our cases articulate a three

- step test for enforcing this guarantee. First we assess ―what classifications the statute creates.‖ See State v. Angilau , 2011 UT 3, ¶ 21, 245 P.3d 745. We then assess ―whether different classes

. . . a re treated disparately.‖ Id. (alteration in original) (internal quotation marks omitted). And finally, ―if there is disparate treatment between classes,‖ we assess ― whethe r the legislature had any reasonable objective that warrants the disparity.‖ Id. (i nt ernal quotation marks omitted).
¶36 This last step incorporates varying standards of scrutiny. See State v. Robinson , 2011 UT 30, ¶ 22, 254 P.3d 183. Those stan dards recognize that most classifications are presumptively permi ssible, and thus subject only to ― rational basis review.‖ Id. Our

equal protection of the laws‖ but rather guard against ―discrim inati on in favor of a minority‖)

.

8 See

, e.g., People ex rel. Smith v. Judge of The Twelfth Dist. , 17 Cal. 547, 554

– 56, 563 (1861) (upholding a law against a challenge under a constitutional provision identical to Article I, Section 24 of the Utah Constitution even though that law created a category of one, explaining that the ―expression . . . that

. . . laws of a general n ature shall be uniform in their operation ‖ only extended to ―persons standing in the same category‖ (internal quotation marks omi tted) ) ; Driggs v. State , 38 N.E. 882 , 884 (Ohio 1894) (explain ing, u nder Ohio‘s Uniform Operation Clause, that a law‘s ―uniformity consists in the fact that no person or thing of the description of any person or thing affected by it is exempt from its opera tion,‖ since uniformity concerns the law‘s ―operation upon the persons or things of any class upo n whom or which it purports to take e ffect‖ (internal quotation marks omitted) )

.S TATE v. C ANTON

O pinion of the Court

14 standards of scrutiny al so recognize, however, that other classif ications are so generally problematic (and so unlikely to be reaso nable) that they trigger heightened scrutiny. Id . (noting that di scrimination on the basis of a ―suspect class‖ (e.g., race or gender) trigger s heightened scrutiny, as do classifications implicating

― fundamental right [ s ]‖ ). 9
¶37 Canton presents no viable constitutional challenge to the application of the tolling provision to this case. The historical r equirement of consistent application or enforcement (or its co nco m itant bar on special privileges or exemptions) is not at all i mplicated here, as Canton‘s gripe is that the statute sweeps too broadly

— in encompassing defendants who are ―out of the state‖ physically but still subject to its authority (and thus purportedly outside the rational reach of the tolling statute). That concern, in fact, runs precisely counter to that of the historical d omain of un iform operation, which was to prescribe broad, uniform applic ation across the entirety of a legislative class, or in other words to foreclos e special privileges or exemptions from enforcement. And Canton‘s claim is similarly deficient under the modern formul ation of uniform operation set forth in our caselaw , as he fails to

9 In formulating the applicable standards of scrutiny, our cases generally incorporate principles from the federal equal protection regime, see, e.g., Blue Cross & Blue Shield of Utah v. State , 779 P.2d 634, 637 (Utah 1989), while reserving the right to depart from those standards in an appropriate case in the future, see , e.g., State v. Drej , 2010 UT 35, ¶ 33, 233 P.3d 476

. Yet our precedent to date has offered little basis or explanation for the extent of any diffe rence between the federal equal protection guarantee and the state requirement of uniform operation. And the parties herein have not ventured anything along those lines in their briefs. So we have no occasion here to elaborate on any difference between the fede ral equal protection and state uniform operation provisions. See State v. Arguelles , 2003 UT 1, ¶ 1 23 n.26, 63 P.3d 731 (declining to break new constitutiona l ground on the issue of whether the ―Utah Constitution requires the exclusion of victim impact ev idence‖ because the litigant did no more than ―restate[] arg uments‖ from an earlier case, where the court had declined to co nsider the issue ―because the brie fs inadequately presented any a rguments supporting [the] assertion‖ ).Cite as: 2013 UT 44 Opinion of the Court

15 attack the only classification drawn by the tolling statute (between those who leave the state after committing a crime and those who remain within it), and takes issue instea d with the stat ute‘s failure to draw additional or different classifi cation s

. ¶38 Canton‘s gripe is with the legislature‘s failure to sub

c lassify

— to draw further distinctions between complia nt and

non

- compliant out

- of

- state defendants . He assert s that these two sub

- classes are fundamental ly different, and thus that it is unco nstitutional to treat them similarly

. ¶39 That is not a viable , standalone basis for a uniform oper ation challenge. Our uniform operation standards are focused on examining the rationality of the classifications that were made by the legislature. See Angilau , 2011 UT 3, ¶ 21 (explaining that we begin by asking ―what classifications the statute creates‖). And

concerns o f over

- inclusiveness, like the one raised by Canton, are relevant only insofar as they bear on the question whether the classification that was made clears the applicable standard of scr utiny. 10 Thus

, even those litigant s who se gripe is that the legislat ure has impermissibly grouped them into a category with other di ssimilar individu als must demonstrate that the classification that put them there fails constitutional muster

. Can ton fails to do so, opting to question only what further sub

- classifications the legi slature might have made

.

10 As Canton indicates, o ur prior opinions have sometimes r eferred to the principle that ―persons in different circumstances should not be treated as if their circumstances were the same

. ‖ See Malan v. Lewis, 693 P.2d 661, 669 (Utah 1984); see also Gallivan v. Walker , 2002 UT 89, ¶ 31, 54 P.3d 1069; Lee v. Gaufin , 867 P.2d 57 2

, 577 (Utah 1993) . But that principle is merely reflective of the fact that over

- inclusiveness considerations infor m the determination whether particular classifications clear the applicable standard of scrutiny. See

, e.g., Lee , 867 P.2d at 577 n.6 ( invoking this principle immediately before noting that ―every legislative act is in one sense discriminatory‖ and explaining that a ― classification is ne ver unreasonable or arbitrary in its inclusion or exclusion features so long as there is some basis for the differentiation between cla sse s . . . included as compared to those excluded from its oper ation‖ (internal quotation marks omitted) )

.S TATE v. C ANTON

O pinion of the Court

16 ¶40 In any event, the viability of the classification drawn by the legislature in the criminal tolling statute is beyond reproach . The governing standard of review is rational basis, as there is no su spect classification at w ork and no apparent fundamental right. (Canton vaguely suggests that the tolling statute bears on his right to travel, but fails to identify any component of that right that is in any way implicated, see State v. Chettero

, 2013 UT 9, ¶ 15, 297 P.3d 582 (se tting forth three components of the right), so he fails to provide a basis for heightened scrutiny. ) And the rationality of the statute‘s classification is quite apparent. As explained above, there are ample grounds for treating criminal defendants who are phy sical ly absent from the state different from those who remain here. Supra ¶ 24 n.4. So the statute‘s classification is rational and its a pplication is accordingly constitutional.

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