This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 54

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

TERRY BLACK,

Appellant.

No. 20130758

Filed July 17, 2015

Third District, West Jordan Dep’t

The Honorable Royal I. Hansen

No. 121400754

Attorneys:

Sean D. Reyes, Att’y Gen., Ryan D. Tenney, Asst. Att’y Gen.,

Salt Lake City, for appellee

Joan C. Watt, McCaye Christianson, Patrick W. Corum,

Jason M. Poppleton, Wojciech S. Nitecki,

Salt Lake City, for appellant

JUSTICE DURHAM authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE PARRISH, and JUDGE ORME joined.

Due to his retirement, JUSTICE NEHRING does not participate 

herein; COURT OF APPEALS JUDGE GREGORY K. ORME sat.

JUSTICE DENO G. HIMONAS became a member of the Court on 

February 13, 2015, after oral argument in this matter, and 

accordingly did not participate.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 This case presents two questions: (1) whether a district court 

judge created an appearance of bias requiring his disqualification 

from the case and (2) whether a district court judge may act as both a 

magistrate and a judge in the same criminal case. The first question 
STATE v. BLACK

Opinion of the Court

became moot when the judge was transferred to a different court 

docket, causing this case to be reassigned during the pendency of 

this appeal. We therefore do not resolve it. As to the second 

question, we hold that a district court judge retains the authority to 

act as a judge after sitting as a magistrate in a case.

BACKGROUND

¶2 The State charged Terry Black with aggravated murder, 

child kidnapping, and rape of a child. The case was assigned to

Judge Kouris. 

¶3 Judge Kouris scheduled a preliminary hearing for a date 

more than six months away in order to give the State time to 

produce requested discovery. Mr. Black later filed a motion to 

continue the preliminary hearing in order to obtain additional 

discovery. The court denied this request. 

¶4 Mr. Black filed a renewed motion to continue the 

preliminary hearing seventeen days prior to its scheduled date. 

Defense counsel then filed a petition to evaluate Mr. Black’s 

competency to stand trial three days later. In response, the State 

requested a hearing to determine the sufficiency of Mr. Black’s 

competency petition. 

¶5 At the hearing to determine the sufficiency of the 

competency petition, the district court asked some pointed questions 

about why defense counsel had waited until two weeks before the 

preliminary hearing to raise the issue of competency. Defense 

counsel maintained they had initial concerns about Mr. Black’s 

competency to stand trial but these concerns became more 

pronounced as the preliminary hearing approached. Ultimately, the 

court granted defense counsel’s request for a competency evaluation 

and stayed all other proceedings. Judge Kouris was scheduled to 

preside over Mr. Black’s competency evaluation.

¶6 After this hearing, Mr. Black filed a motion to transfer 

adjudication of the competency petition to another judge. He argued 

that his competency evaluation must be adjudicated by a different 

district court judge because Judge Kouris had sat as magistrate in the 

case. The presiding judge of the Third District Court denied 

Mr. Black’s motion to transfer. He concluded that Judge Kouris, as a 

district court judge, was authorized to hear and adjudicate all 

proceedings of a criminal case. 

¶7 Mr. Black then filed a motion to disqualify Judge Kouris. In 

that motion, Mr. Black alleged that statements made by the judge 

during the hearing to determine the sufficiency of the competency 

petition created an appearance of bias. The associate presiding judge 

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Opinion of the Court

of the Third District Court concluded that the judge’s tone and 

comments during the hearing did not approach the level necessary 

for disqualification and denied Mr. Black’s motion. 

¶8 This court granted Mr. Black’s petition for interlocutory 

review of the orders denying these two motions. 

ANALYSIS

I. THE DISQUALIFICATION ISSUE IS MOOT

¶9 Mr. Black argues that the associate presiding judge of the 

Third District Court erred when he declined to disqualify Judge 

Kouris. After oral argument was held in this appeal, however, the 

State notified this court that Judge Kouris had been transferred from 

the court location in which Mr. Black is being prosecuted and was 

reassigned to a different docket. The State asserts that because a new 

judge will be assigned to Mr. Black’s case, the disqualification issue 

is moot. We agree.

¶10 Courts generally will not resolve an issue that becomes 

moot. Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union, 

2012 UT 75, ¶¶ 14, 32, 289 P.3d 582; Navajo Nation v. State (In re 

Adoption of L.O.), 2012 UT 23, ¶ 8, 282 P.3d 977. An issue becomes 

moot “if during the pendency of the appeal circumstances change so 

that the controversy is eliminated, thereby rendering the relief 

requested impossible or of no legal effect.” Utah Transit Auth., 2012 

UT 75, ¶ 14 (internal quotation marks omitted). 

¶11 In this case, Judge Kouris’s reassignment to a different court 

docket eliminates the controversy over his disqualification since he 

will no longer preside over Mr. Black’s criminal case. The 

disqualification issue is moot because the relief Mr. Black requests—

the disqualification of Judge Kouris from his case—is now 

meaningless and will have no effect on future proceedings. See id.

¶ 24. (“The defining feature of a moot controversy is the lack of 

capacity for the court to order a remedy that will have a meaningful 

impact on the practical positions of the parties.”).

¶12 Mr. Black contends that we should nevertheless resolve this 

issue because it falls within a recognized exception to the mootness 

doctrine. A court may resolve a moot issue if it “(1) presents an issue 

that affects the public interest, (2) is likely to recur, and (3) because of 

the brief time that any one litigant is affected, evades review.” Id.

¶ 32. This exception does not apply here because the third element 

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STATE v. BLACK

Opinion of the Court

has not been met.1 Mr. Black has not produced any evidence that 

district court judges are transferred with such frequency that a claim 

that a judge should be disqualified effectively evades review by 

regularly becoming moot before an appellate court has an 

opportunity to rule on the issue. See id. ¶ 37 (“The types of issues 

likely to evade review are those that are inherently short in duration 

so that by the time the issue is appealed, a court is no longer in a 

position to provide a remedy.” (internal quotation marks omitted)). 

¶13 Because the disqualification issue has become moot and the 

exception to the mootness doctrine does not apply, we do not 

address it.

II. A DISTRICT COURT JUDGE MAY ACT AS BOTH A

MAGISTRATE AND A JUDGE WITHIN THE SAME CASE

¶14 Within the Utah state court system, a magistrate is a justice, 

judge, or commissioner who performs one of several functions 

described by statute. UTAH CODE §§ 77-1-3(4), 78A-2-220. One of the 

enumerated functions of a judicial official acting as a magistrate is to 

“conduct a preliminary examination to determine probable cause.” 

Id. § 78A-2-220(1)(f). 

¶15 Mr. Black contends that by presiding over proceedings 

leading up to his preliminary hearing, the district court judge 

stepped into the role of a magistrate. Mr. Black further argues that in 

doing so, the judge irretrievably surrendered the authority inherent 

to his position as a district court judge and that he could no longer 

perform duties reserved for the district court, such as adjudicating a 

competency petition. See id. § 77-15-5(1)(b) (“The district court . . . 

shall review the allegations of incompetency . . . .”). 

¶16 Both the State and Mr. Black agree that this issue was not 

mooted by Judge Kouris’s transfer because the question remains 

whether a replacement district court judge may act as both 

magistrate and judge in this case when it is remanded. We therefore 

review the presiding judge’s ruling that a district court judge may 

resolve a competency petition after acting as a magistrate in a case. 

We review this ruling de novo, ceding no deference to the lower 

court’s legal conclusions regarding the authority of a district court 

judge. Cf. State v. Norris, 2007 UT 6, ¶ 10, 152 P.3d 293 (“Whether the 

district court has jurisdiction is a question of law that we review for 

correctness, giving no deference to the lower court.”).

1 Because it is unnecessary to the resolution of this issue, we draw 

no conclusions about the first or second elements.

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Opinion of the Court

¶17 Mr. Black bases his argument that the district court judge 

was locked in his role as a magistrate on language taken from Van 

Dam v. Morris, 571 P.2d 1325 (Utah 1977) and State v. Humphrey, 823 

P.2d 464 (Utah 1991). In Van Dam, we held that “[w]hen a judge acts 

in the capacity of a magistrate, he does not do so as a judge, but 

rather as one who derives his powers” from the statutes defining the 

authority of a magistrate. 571 P.2d at 1327. We later affirmed this 

holding in Humphrey when we stated that 

our statutory provisions make an unmistakable 

distinction between the functions and powers of a 

judicial officer acting as magistrate and one acting as 

judge of a court. . . . [Judicial officials] when sitting as 

magistrates hav[e] the jurisdiction and powers 

conferred by law upon magistrates and not those that 

pertain to their respective judicial offices.

823 P.2d at 467 (third alteration in original) (internal quotation marks 

omitted).

¶18 Van Dam and Humphrey, however, do nothing to advance 

Mr. Black’s argument. In those cases we held that a judge sitting as a 

magistrate performs a unique statutory function that is separate 

from his or her judicial office. We did not say that a judge who sits as 

a magistrate may no longer act as a judge in subsequent proceedings 

in the case. 

¶19 In fact, we have recognized that a judge may switch between 

a magistrate role and a judicial role in the same case. In State v. Jaeger

we observed that the judge in that case “took off his judicial hat and 

put on his magistrate’s hat to conduct the preliminary hearing,” and 

then “removed that hat and put his judicial hat back on just prior to 

entering his judgment of dismissal and discharge.” 886 P.2d 53, 54 

n.2 (Utah 1994). We later affirmed this language from Jaeger and held 

that the fact that a district court judge may switch between the roles 

of a magistrate and a judge “does not mean that the district court 

loses jurisdiction when it moves between these different capacities.” 

State v. Smith, 2014 UT 33, ¶ 24, 344 P.3d 573.

¶20 Accordingly, we uphold the presiding judge’s conclusion 

that a district court judge may act as both a magistrate and a judge in 

the same criminal case. We remand for further proceedings 

consistent with this opinion.

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