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

                                2019 UT 01


                                    IN THE

      SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Petitioner,
                                       v.
               COOPER JOHN ANTHONY VAN HUIZEN,
                          Respondent.

                             No. 20170304
                         Filed January 7, 2019

            On Certiorari to the Utah Court of Appeals

                  Second Judicial District, Weber
                  The Honorable Ernie W. Jones
                          No. 131902542

                                Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
                   Salt Lake City, for petitioner
          Elizabeth Hunt, Salt Lake City, for respondent

   JUSTICE PETERSEN authored the opinion of the Court, in which
       CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE HIMONAS and JUDGE CANNELL joined.
   Having recused himself, JUSTICE PEARCE does not participate
         herein; DISTRICT JUDGE BRIAN G. CANNELL sat.

   JUSTICE PETERSEN, opinion of the Court:
                          INTRODUCTION
    ¶1    Cooper Van Huizen participated in an armed robbery
when he was sixteen years old. The State charged him with three
first-degree felonies in juvenile court. After a preliminary hearing,
the juvenile judge bound over Van Huizen to the district court to be
tried as an adult. There, Van Huizen pled guilty to lesser charges
and the district court judge sentenced him to prison.
                         STATE v. VAN HUIZEN
                         Opinion of the Court


   ¶2     While he was serving his prison sentence, Van Huizen
discovered that the juvenile judge who presided over his
preliminary hearing was married to the Chief Criminal Deputy for
the Weber County Attorney’s Office—the office that prosecuted
him on behalf of the State. Van Huizen moved to reinstate the time
to appeal his bindover order, which the district court granted. He
argued on appeal that the juvenile judge should have recused
herself from his case because of her spouse’s position.
    ¶3    The court of appeals agreed and vacated the juvenile
judge’s bindover order. In its ruling, the court made two holdings
that are the subject of this petition. First, the court did not require
Van Huizen to show either that he had preserved his judicial bias
claim in the trial court or that an exception to preservation applied.
The court reasoned that Van Huizen did not need to preserve his
claim because he was not aware of the judge’s conflict and was
therefore unable to raise it. Second, the court held that Van Huizen
was entitled to have the bindover decision vacated, even without
showing that the judge’s conflict caused him prejudice.
   ¶4    We must first determine whether it was error to excuse
Van Huizen from preserving his claim of judicial bias. Because we
conclude it was, we do not reach whether such a claim can be
successful without a showing of prejudice.
   ¶5     We reverse the decision of the court of appeals and
reinstate Van Huizen’s conviction.
                          BACKGROUND
   ¶6     At sixteen years old, Cooper Van Huizen participated in
an armed robbery with four other individuals: a 17-year-old friend
and three men he did not know who were all 18. Together, they
took two revolvers and one airsoft gun from Van Huizen’s house
and threatened their way into the home of an acquaintance. They
stole a small amount of marijuana, a wallet, and a phone.
    ¶7    Though the victim and a co-defendant variously claim
that Van Huizen brandished one of the guns, carried a knife, or was
the one who stole the wallet and phone, the record is not conclusive
as to any of these facts. Van Huizen denies carrying a gun or knife.
Though Van Huizen did not plan the robbery, the record shows
that he participated in a text conversation about the robbery before
it occurred, participated in the robbery, and obtained his father’s
guns for the group to use.

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                      A. Bindover from Juvenile Court
    ¶8     The Weber County Attorney’s Office charged Van Huizen
in juvenile court with two counts of aggravated robbery and one
count of aggravated burglary—crimes that qualified as serious
felonies under the Serious Youth Offender Act. See UTAH CODE
§ 78A-6-702 (2013).1 Because Van Huizen was sixteen or older and
accused of offenses listed in the Act, the statute required the State
to charge Van Huizen in a criminal information rather than a
petition. Id. § 78A-6-702(1).
    ¶9    At a preliminary hearing, the juvenile judge found the
State had met its burden of proving there was probable cause to
believe Van Huizen committed the offenses charged. See id. § 78A-
6-702(3)(a). Under the Serious Youth Offender Act, the judge then
had to determine whether Van Huizen could establish by clear and
convincing evidence that “it would be contrary to the best interest
of the minor and the best interests of the public” to bind Van
Huizen over to the district court to be tried as an adult. State v. Van
Huizen, 2017 UT App 30, ¶ 4, 392 P.3d 933 (citing UTAH CODE §
78A-6-702(3)(d),(e))(internal quotation marks omitted). The judge
ultimately concluded Van Huizen should be bound over to district
court. And Van Huizen did not move to quash the bindover order.
Id. ¶ 8.
       B. District Court Plea, Sentencing, and Post-Conviction Motions
    ¶10 In the district court, represented by new counsel, Van
Huizen pled guilty to two counts of robbery as second degree
felonies. Van Huizen, 2017 UT App 30, ¶ 9. The other charges were
dismissed. The district court sentenced Van Huizen to two
concurrent sentences of one to fifteen years in prison. Id.
   ¶11 Van Huizen filed several post-trial motions in the district
court, including a motion to reinstate his time to appeal the
bindover order and a motion to quash the bindover order. The
district court denied most of Van Huizen’s motions, but did
reinstate his opportunity to appeal the bindover order with the
agreement of the State. Van Huizen appealed the district court’s
decisions on all his post-conviction motions.

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   Throughout this opinion we cite to the 2013 version of the Utah
   1

Code, which governed during the relevant timeframe.


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                        Opinion of the Court


                     C. Court of Appeals Decision
   ¶12 Before the court of appeals, Van Huizen argued that the
juvenile judge should have recused herself under rule 2.11 of the
Utah Code of Judicial Conduct because she was married to the
Chief Criminal Deputy of the office that prosecuted him. Van
Huizen, 2017 UT App 30, ¶ 13. Van Huizen also raised two
additional grounds to vacate the bindover order—ineffective
assistance of his juvenile court counsel and plain error of the
juvenile court with respect to the application of the Serious Youth
Offender Act. Id. ¶ 12. The court of appeals addressed only the
appearance of partiality issue. Id.
    ¶13 The court of appeals held that the juvenile judge’s
undisclosed marriage to the Chief Criminal Deputy—an attorney in
the “chain of command” at the prosecuting county attorney’s
office—created an appearance of partiality.2 Id. ¶ 46. It is
undisputed that Van Huizen did not raise this issue in the juvenile
court, and the juvenile judge did not have an opportunity to
address it. Id. ¶ 50 n.15. But the court of appeals concluded that the
usual rules of preservation did not apply to this claim because the
judge had not disclosed the relationship on the record and
therefore Van Huizen did not know about it and could not have
raised it. Id. The court also held that Van Huizen did not need to
show he was prejudiced by the judge’s alleged partiality to prevail
on his claim. Id. ¶ 59. The court vacated the bindover order and
remanded for a new hearing in juvenile court before a different
judge. Id. ¶ 65.
    ¶14 The State and Van Huizen cross-petitioned for certiorari.
We granted the State’s petition on two issues: (1) whether the court
of appeals erred in concluding that preservation did not apply to
Van Huizen’s judicial bias claim, and (2) whether it was error to
allow Van Huizen to prevail on this claim without a showing of
prejudice because the judge did not disclose the relevant facts on
the record.
   ¶15 Although we did not grant Van Huizen’s cross-petition
for certiorari, we permitted him to raise the issues he included in

_____________________________________________________________
   2The court did not rely upon the judge’s former employment in
the Weber County Attorney’s Office as a basis for recusal.


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his petition as alternative grounds for affirmance.3 We have
jurisdiction to hear this case pursuant to Utah Code section 78A-3-
102(3)(a).
                     STANDARD OF REVIEW
   ¶16 “On certiorari, we review the court of appeals’ decision
for correctness.” PC Riverview, LLC v. Xiao-Yan Cao, 2017 UT 52,
¶ 20, 424 P.3d 162 (citation omitted).
                             ANALYSIS
                         I. PRESERVATION
   ¶17 We must decide as a preliminary matter whether Van
Huizen’s judicial bias claim is exempt from the preservation
requirement. We conclude it is not. As with any other claim, Van
Huizen must have raised this issue in the trial court or be able to
show that an exception to preservation applies.
    ¶18 Before the court of appeals, the State argued that the court
must review Van Huizen’s judicial bias claim for plain error
because he did not raise it in the juvenile court. The court of
appeals rejected the State’s contention, reasoning that Van Huizen
need not have preserved his claim because he did not have the
opportunity to raise the issue in the juvenile court. State v. Van
Huizen, 2017 UT App 30, ¶ 50 n.15, 392 P.3d 933. The court
concluded that the juvenile judge had the “duty to disclose facts
relevant to disqualification in the first instance” and, because she


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   3 Van Huizen prevailed in the court of appeals on all issues before
us, so he may not cross-petition for affirmance on alternative
grounds that do not affect the outcome of the court of appeals’
decision. “Appellees . . . may not use a cross-appeal as a vehicle for
arguing for the affirmance of a [lower] court’s judgment. Appellees
must instead raise an alternative ground for affirmance in the
briefing of the initial appeal.” Helf v. Chevron U.S.A. Inc., 2015 UT 81,
¶ 62, 361 P.3d 63. If appellees “merely desire the affirmance of the
lower court’s judgment, they need not, and should not, cross-appeal
or cross-petition.” State v. South, 924 P.2d 354, 356 (Utah 1996).
Litigants should only cross-appeal “if they wish to attack a judgment
of a lower court for the purpose of enlarging their own rights or
lessening the rights of their opponent.” Id. at 355 (citations omitted).

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                         Opinion of the Court


did not, the preservation rule did not apply to Van Huizen’s claim
of judicial partiality. Id. This was error.
    ¶19 We agree that judges are obligated to disclose facts
relevant to disqualification. But when a litigant alleges undisclosed
judicial bias for the first time on appeal, such a claim is not immune
from preservation rules. Rather, when a litigant was truly unable to
raise a claim – including a claim of judicial bias – at the trial level,
the litigant is likely to be able to show that an exception to
preservation applies. But a preservation analysis must still take
place.
    ¶20 While the court of appeals’ contrary holding is incorrect, it
is understandable. The court of appeals relied on our decision in
State ex rel. D.B., in which we stated that a juvenile defendant had
“no obligation to preserve a claim of which he received no notice.”
2012 UT 65, ¶ 15, 289 P.3d 459. However, we clarified State ex rel.
D.B. in State v. Johnson, 2017 UT 76, 416 P.3d 443, which was
published after the court of appeals rendered its decision in this
case.
    ¶21 In Johnson, we explained that “[w]hen an issue is not
preserved in the trial court, but a party seeks to raise it on appeal,
the party must establish the applicability of one of the[] exceptions
[to preservation] to persuade an appellate court to reach that
issue.” 2017 UT 76, ¶ 19. There are three exceptions to preservation:
exceptional circumstances, plain error, and ineffective assistance of
counsel. Id.
    ¶22 We indicated in Johnson that State ex rel. D.B. should be
understood as an application of the exceptional circumstances
exception to preservation. See id. ¶ 35. “We apply [the exceptional
circumstances] exception to reach an unpreserved issue where a
‘rare procedural anomal[y]’ has either prevented an appellant from
preserving an issue or excuses a failure to do so.” Id. ¶ 29 (second
alteration in original) (citation omitted).4 We explained that in State

_____________________________________________________________
   4 In Johnson, we explained that the presence of a rare procedural
anomaly is not dispositive. Rather, it “opens the door to a deeper
inquiry.” 2017 UT 76, ¶ 9. Additional factors that should be
considered include (a) whether the failure to address an unpreserved
issue would result in manifest injustice, (b) whether there is a
                                                             (cont’d)
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ex rel. D.B. “we recognized a rare procedural anomaly ‘when the
alleged error first arises in the lower court’s final order or judgment
and thus, leaves no opportunity for the party to object.” Id. ¶ 35
(citation omitted).
   ¶23 This is essentially what Van Huizen claims here: that a
rare procedural anomaly (the judge’s failure to disclose her
marriage to the Chief Criminal Deputy) prevented him from raising
the issue of judicial bias in the juvenile court. However, we note
that even under a proper exceptional circumstances analysis, Van
Huizen has not sufficiently shown that he was unable to raise an
objection to the juvenile judge’s participation in his case.
   ¶24 Van Huizen submitted affidavits from his parents and
himself stating that they did not become aware of the identity and
position of the juvenile judge’s spouse until after Van Huizen’s
conviction and after the time to appeal the bindover order had
expired. But the record suffers from a significant inadequacy—
there is no affidavit from Van Huizen’s juvenile court counsel that
he did not know of the juvenile judge’s marriage to the Chief
Criminal Deputy. Aside from some circumstantial indications in
the record that the juvenile judge and counsel were unacquainted,
Van Huizen does not support his assertion that his counsel could
not have raised the issue of partiality in the juvenile court.
    ¶25 The State argued in the court of appeals that the juvenile
judge could have made an off-the-record disclosure to Van
Huizen’s counsel or assumed counsel knew of the relationship. Van
Huizen, 2017 UT App 30, ¶ 37 n.11. The court of appeals rejected
this argument and, citing the Vermont Supreme Court, stated that
“[i]t is not appropriate to make such an assumption.” Id. (citing
Velardo v. Ovitt, 2007 VT 69, ¶ 29 n.3, 933 A.2d 227) (alteration
omitted).
    ¶26 We agree that it is the judge’s obligation to recuse when it
is required, regardless of whether a motion to disqualify is filed. See
UTAH CODE JUD. CONDUCT ANN. 2.11, cmt. 2; Reg’l Sales Agency, Inc.
v. Reichert, 830 P.2d 252, 257 n.7 (Utah 1992). And it is incumbent
upon a judge, not a litigant or lawyer, to make a clear record of any



significant constitutional right or liberty interest at stake, and (c)
judicial economy. Id. ¶ 37.

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                         Opinion of the Court


disclosure of a basis for disqualification and the parties’ response to
the disclosure. UTAH CODE JUD. CONDUCT 2.11(C), (D).
    ¶27 But this does not fill the gap in our exceptional
circumstances analysis here. Van Huizen has the burden to show
that he was unable to object to the juvenile judge’s participation at
the proper time. See Johnson, 2017 UT 76, ¶¶ 54–62 (noting that the
appellant bore the “high burden” of establishing the existence of
exceptional circumstances). This includes showing that his counsel
was unable to raise the issue. See id. Van Huizen has not done so.
Accordingly, the exceptional circumstances exception to
preservation does not apply here.
   ¶28 The plain error exception also does not save Van Huizen’s
judicial bias claim. The State argued in the court of appeals that the
court should conduct a plain error analysis because Van Huizen
had not preserved this claim. But the court of appeals concluded
that plain error was “not the proper framework” because the
preservation rule did not apply to situations in which a party did
not have the opportunity to raise an issue before appeal. Van
Huizen, 2017 UT App 30, ¶ 50 n.15.
    ¶29 As discussed above, this is incorrect. But even under a
proper preservation analysis, we conclude that the plain error
exception would not be satisfied here. The applicability of rule 2.11
to the instant facts is not clear enough to hold that the juvenile judge
made an obvious error.5
   ¶30 “To demonstrate plain error, a defendant must establish
that (i) [a]n error exists; (ii) the error should have been obvious to
_____________________________________________________________
   5 This does not mean we are not concerned with the situation Van
Huizen has identified. A judge must recuse herself if “the judge’s
impartiality might reasonably be questioned . . . .” UTAH CODE JUD.
CONDUCT Rule 2.11(A). While the specific situation here has not been
previously addressed, the court of appeals conducted a careful
interpretation of rule 2.11 and determined that the facts at hand
created an appearance of impartiality. This was not settled law
during Van Huizen’s juvenile court proceedings, and it is not
obvious from the plain language of rule 2.11. But the court of
appeals’ analysis identifies legitimate concerns suggesting the rule
should be reviewed and possibly clarified.


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the trial court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(alteration in original) (citation omitted) (internal quotation marks
omitted). For an error to be obvious to the trial court, “the law
governing the error” must be clear or “plainly settled.” Johnson,
2017 UT 76, ¶ 21 (citing State v. Dean, 2004 UT 63, ¶¶ 16, 18, 95 P.3d
276) (internal quotation marks omitted).
   ¶31 But there is no Utah case law addressing this specific
factual scenario. See Van Huizen, 2017 UT App 30, ¶ 28. And the
plain language of rule 2.11 does not clearly encompass the judge’s
husband within the categories requiring disqualification.
   ¶32   The potentially relevant portions of rule 2.11(A) state:
       A judge shall disqualify himself or herself in any
       proceeding in which the judge’s impartiality might
       reasonably be questioned, including but not limited to
       the following circumstances:
       ...
       (2) The judge knows that the judge, the judge’s
       spouse or domestic partner, or a person within the
       third degree of relationship to either of them, or the
       spouse or domestic partner of such a person is:
           (a) a party to the proceeding, or an officer,
           director, general partner, managing member, or
           trustee of a party;
           (b) acting as a lawyer in the proceeding;
           (c) a person who has more than a de minimis
           interest that could be substantially affected by the
           proceeding . . . .
UTAH CODE JUD. CONDUCT 2.11(A). The court of appeals interpreted
rule 2.11 to include the juvenile judge’s husband because “he was
in the direct chain of command between the County Attorney and
the attorney prosecuting this case,” both of whom would be fairly
encompassed by rule 2.11(A)(2)(a) or (b). Van Huizen, 2017 UT App
30, ¶ 48. But it is not obvious from a reading of the plain language
of the rule that a supervising attorney not directly involved with
the case would fall into the category of persons that requires
disqualification.

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                         Opinion of the Court


    ¶33 With regard to subsection (A)(2)(a)—concerning a
situation in which a judge knows that her spouse is “a party to the
proceeding, or an officer, director, general partner, managing
member, or trustee of a party,”—the court of appeals noted, “[w]e
are not persuaded that rule 2.11(A)(2)(a)’s language either plainly
applies or plainly does not apply to the Chief Criminal Deputy.”
Van Huizen, 2017 UT App 30, ¶ 27.
    ¶34 We agree. The Chief Criminal Deputy was not a “party”
to the proceeding. And the terms “officer, director, general partner,
managing member, or trustee” suggest positions within a private
entity or corporate structure.6 We agree with the court of appeals’
observation that “officer” can apply more broadly to either a
government or corporate setting. Van Huizen, 2017 UT App 30,
¶ 25, (citing Officer, WEBSTER’S NEW WORLD COLLEGE DICTIONARY
1015 (5th ed. 2016); Officer, BLACK’S LAW DICTIONARY 1257 (10th ed.
2014)). But while the term “officer” would likely include the elected
County Attorney, it does not unequivocally encompass the Chief
Criminal Deputy. As the court of appeals correctly noted, “it is
unclear whether he was ‘elected or appointed’ to his position . . . as
understood by the term’s definition. Van Huizen, 2017 UT App 30,
¶ 26. So, we agree with the court of appeals and are similarly “not

_____________________________________________________________
   6 E.g., Officer, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Someone
who holds an office of trust, authority, or command. In public
affairs, the term refers esp. to a person holding public office under a
national, state, or local government, and authorized by that
government to exercise some specific function. In corporate law, the
term refers esp. to a person elected or appointed by the board of
directors to manage the daily operations of a corporation, such as a
CEO, president, secretary, or treasurer.”); Director, BLACK’S LAW
DICTIONARY (10th ed. 2014) (“1. Someone who manages, guides, or
orders; a chief administrator. 2. A person appointed or elected to sit
on a board that manages the affairs of a corporation or other
organization by electing and exercising control over its officers.”);
Partner, BLACK’S LAW DICTIONARY (10th ed. 2014) (“1. Someone who
shares or takes part with another, esp. in a venture with shared
benefits and shared risks; an associate or colleague . . . . 2. One of two
or more persons who jointly own and carry on a business for
profit . . . .”).


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persuaded that the plain language of rule 2.11(A)(2)(a) answers the
question presented.” Id. ¶ 25.
   ¶35 Subsection 2.11(A)(2)(b) also does not clearly apply. While
the Chief Criminal Deputy may have had some involvement with
the case after it was bound over, it is not clear that he was “acting
as a lawyer” in the juvenile court proceedings.7 And he did not
appear as counsel on the case.
    ¶36 Similarly, with regard to subsection (A)(2)(c), it cannot be
said that the Chief Criminal Deputy had “more than a de minimis
interest that could be substantially affected” by this one criminal
case. There was no monetary advantage for the Chief Criminal
Deputy in the result of this case. And any reputational benefit that
might be achieved is speculative and difficult to measure. See In re
Inquiry Concerning a Judge, 2003 UT 35, ¶ 13, 81 P.3d 758 (holding
that a judge’s relation to a member of a firm representing a party
was not subject to disqualification “where no money is at issue and
there is no possibility of a contingent fee arrangement”). Indeed, no
matter what the result of the bindover, Van Huizen would have
still been subject to a criminal trial in juvenile court and a
conviction could have been obtained there. There is no evidence of
the juvenile judge’s husband having “more than a de minimis
interest” in the outcome of the proceedings in juvenile court.
   ¶37 Under the language of any subsection of rule 2.11(A), it is
not clear that the juvenile judge made an obvious error by not
recusing herself or seeking a waiver. Accordingly, Van Huizen
cannot overcome preservation based on plain error.
       II. ALTERNATIVE GROUNDS FOR AFFIRMANCE
   ¶38 Van Huizen raises two alternative grounds for reversal of
the bindover decision. First, he argues that his counsel was
ineffective at the bindover hearing for failing to inform the court of
the 2013 amendments to the Serious Youth Offender Act and for

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   7 The Chief Criminal Deputy’s involvement was limited to
“respond[ing] on behalf of the Weber County Attorney to
communications from Van Huizen’s current counsel when counsel
substituted into the case,” and “request[ing] digital copies of several
proceedings, on behalf of either himself or a colleague.” Van Huizen,
2017 UT App 30, ¶ 37.


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                        Opinion of the Court


failing to prepare and present a case for retention. Second, Van
Huizen argues that the juvenile judge misinterpreted the Serious
Youth Offender Act by failing to adequately consider factors for
retention that existed in this case.
    ¶39 The State argues that we do not have jurisdiction to
consider these additional grounds. Both grounds were raised and
expressly not addressed in the court of appeals. Van Huizen, 2017
UT App 30, ¶ 12. But “[w]hen a party raises alternative grounds for
affirmance, an appellate court may affirm the judgment appealed
from on any legal ground or theory apparent on the record.” PC
Riverview, LLC v. Xiao-Yan Cao, 2017 UT 52, ¶ 34, 424 P.3d 162
(citation omitted) (internal quotation marks omitted). This holds
true even when the alternative grounds were “not considered or
passed on by the lower court.” Bailey v. Bayles, 2002 UT 58, ¶ 10, 52
P.3d 1158 (citations omitted) (internal quotation marks omitted).
    ¶40 While we have jurisdiction and discretion to reach the
alternative grounds for affirmance raised by Van Huizen, the court
of appeals is in a better position to address these arguments in the
first instance. For this reason, we decline to reach these arguments
and remand to the court of appeals for consideration of Van
Huizen’s additional claims.
                          CONCLUSION
    ¶41 Preservation rules apply to all claims. If a litigant fails to
raise a claim in the trial court because the litigant does not know of
the claim, or is otherwise unable to raise it, on appeal the litigant
still must show that an exception to preservation applies. If
circumstances truly prevented a party from raising a claim, it is
likely that the party could successfully invoke an exception to
preservation. But the party has the burden of making this showing.
    ¶42 Van Huizen did not preserve his claim that the juvenile
court judge who handled his case should have recused herself
because she was married to the Chief Criminal Deputy of the
prosecuting attorney’s office. This is not necessarily fatal to his
claim. But he did not show that any exception to preservation
applies, and that is fatal.
   ¶43 We reverse the decision of the court of appeals, reinstate
Van Huizen’s conviction, and remand to the court of appeals to
consider the merits of Van Huizen’s additional claims.


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