                  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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