Utah Supreme court vacates conviction for sending nude drawing to young child and upholds issuance of permit to an oil refinery.

Butt v State

Butt appealed the denial of his post-conviction relief petition arguing ineffective assistance of counsel for failing to raise a First Amendment defense to the charges of distributing materials harmful to minors. The Court reversed and vacated the conviction. It held that under United States Supreme Court precedent, the rough test for whether an item is harmful to minors is whether it appeals to the prurient interest in sex of minors, whether an item is erotic is determined by review of the item not by the lack of capacity of young children to experience sexual arousal as ruling otherwise would immunize grooming by pedophiles and that the drawings here of Butt’s nude body and one including depictions of his 5 year old daughter did not appeal to prurient interest because they were not sexual or suggestive given the drawings were rudimentary and the only evidence as to the context of the drawings was it depicted tickling activity between butt and his daughter and the ambiguous nature of eth drawing which included the daughter. The Court emphasized the case was a close call, but, that failure to raise the defense was deficient performance and the outcome of the trial would have been different as the charges would have been dismissed.

Utah Physicians for a Healthy Environment v Executive Director of the Utah Department of Environmental Quality

Physicians petitioned for review of the grant of permit for a new project at an oil refinery. The Court, 4-1, rejected the petition holding that, under a 2016 precedent on another challenge to a permit, Physicians attacked the wrong administrative decision in attaching the initial permit not the Executive Director’s final action upholding the permit and thus the challenge must fail. Durham dissented arguing the 2016 case was wrong for the reasons set out in her dissent in that case.