Due Process Limits on Prosecutorial Refiling: Clarifying the Brickey Standard

Introduction

State of Utah v. Kyli Jenae Labrum (2025 UT 12) presented the Supreme Court of Utah with the question whether the Utah Constitution’s Due Process Clause forbids the State from refiling rape charges after a magistrate judge denied bindover for insufficient evidence. The case arose from allegations that twenty-six-year-old Labrum engaged in a nonconsensual sexual relationship with a sixteen-year-old family friend, T.S. At the first preliminary hearing, the State’s substitute prosecutor argued briefly only that Labrum occupied a special position of trust over T.S. and introduced hearsay statements describing the parties’ decade-long friendship. The magistrate rejected that theory, and the State, instead of appealing, first sought reconsideration and then voluntarily dismissed and refiled the charges—this time adding an alternative “enticement” theory. Labrum moved to dismiss under State v. Brickey, 714 P.2d 644 (Utah 1986), arguing that refiling without good cause and before a new magistrate violated due process. The magistrate granted her motion, and the State appealed.

Summary of the Judgment

The Supreme Court of Utah vacated the magistrate’s dismissal and remanded for application of a clarified Brickey standard. The Court (Pearce, A.C.J., with Durrant, Petersen, Hagen & Pohlman, JJ.) refused to overrule Brickey but harmonized it with later decisions (notably Morgan and Redd) and with the 1995 Victims’ Rights Amendment (VRA). The Court held that:

The Utah Due Process Clause protects defendants from prosecutorial refiling undertaken in bad faith or with intent to harass.
There is no absolute bar to refiling charges once dismissed for lack of probable cause; a defendant may file a Brickey motion alleging facts supporting an inference of bad faith or harassment.
The burden shifts to the State to prove by a preponderance of the evidence that its refiling was not in bad faith or for harassment.
Under the VRA, the preliminary hearing no longer serves as a discovery device, so the State’s decision not to introduce all available evidence or theories at the first hearing does not, standing alone, establish bad faith.
If the State meets its burden, it may proceed to a second preliminary hearing on any theory of its choosing; if the defendant prevails, the State may try only the lesser charges already bound over.

Analysis

Precedents Cited

State v. Brickey (1986 UT 71): Held that Utah’s Due Process Clause limits the prosecutor’s ability to refile charges dismissed for insufficient evidence. Brickey required good cause and the same magistrate judge “whenever possible.”
State v. Morgan (2001 UT 87): Clarified Brickey to protect against “bad faith or misconduct” by prosecutors and recognized good-faith procedural mistakes as a subset of “good cause.”
State v. Redd (2001 UT 113): Found an inference of bad faith where the prosecutor presented “no scintilla of evidence” on an essential element, an error so obvious it could not be innocent.
State v. Pacheco-Ortega (2011 UT App 186): Described the case law under Brickey as “somewhat confusing,” foreshadowing the need for clarification.
State v. MacNeill (2012 UT App 263): Modeled a holistic forum-shopping inquiry, looking at motive, case assignment, and judicial comments rather than treating magistrate identity as an absolute test.

Legal Reasoning

The Court distinguished constitutional operative propositions from decision rules. Brickey’s operative proposition—that due process forbids unbridled prosecutorial refiling to harass defendants—was sound. Its decision rule, borrowed from Oklahoma’s supervisory model, however, swept too broadly as a prophylactic standard. The Court re-anchored Brickey’s decision rule to the constitutional core:

Rather than imposing a per se prohibition, courts must determine whether the State acted in bad faith or with intent to harass.
Defendants alleging unconstitutional refiling file a Brickey motion and must show a reasonable basis for inferring bad faith.
The State bears the burden to disprove that inference by a preponderance of the evidence.
If the State succeeds, it may refile before any magistrate; if not, the rape charges remain barred.

The Court further recognized the 1995 VRA’s elimination of the preliminary hearing’s discovery function: the State need not introduce every piece of evidence or every legal theory at the first hearing. Withholding unused evidence or alternative theories does not, without more, imply bad faith under Brickey.

Impact

The clarified standard will reshape how prosecutors and defense counsel approach preliminary hearings:

Prosecutors will still aim to present their strongest case and theories at the first hearing, but they retain the right to refine or add theories at a second hearing so long as they carry their burden on good faith.
Defense counsel must thoughtfully craft Brickey motions by pointing to specific procedural facts—forum shopping, intentional withholding of critical evidence, or repeated meritless refilings—that support an inference of harassment.
Judges will conduct a more structured, evidence-based inquiry into prosecutorial intent, rather than mechanically dismissing refilings or presuming bad faith from any misstep.
Rule-makers and legislators may consider whether a formal rule or statutory amendment should address prophylactic concerns while leaving constitutional adjudication to this clarified standard.

Complex Concepts Simplified

Probable Cause at Preliminary Hearing: A low threshold. The State must show enough evidence for a reasonable belief that an offense occurred and that the defendant committed it.
Brickey’s Operative Proposition: Utah’s Due Process Clause forbids refiling carried out in bad faith or to harass defendants after charges are dismissed for insufficient evidence.
Decision Rule vs. Operative Proposition: The operative proposition defines the constitutional right; the decision rule provides the concrete steps for courts to determine if the right was violated.
Prophylactic Rule: A preventive measure—often created by rule-makers—that guards against potential constitutional violations rather than adjudicating actual violations.
Victims’ Rights Amendment (VRA): Ratified in 1995, it narrowed preliminary hearings to the sole purpose of determining probable cause, eliminating their prior discovery function.

Conclusion

State v. Labrum reaffirms and refines the Brickey standard under Utah’s Due Process Clause. The Supreme Court of Utah preserved Brickey’s core protection against bad-faith refilings, rejected an absolute bar on refiling, and removed any presumption that withholding evidence or theories at the first hearing violates due process post-VRA. Going forward, defendants may file targeted Brickey motions alleging prosecutorial harassment, and the State must carry the burden to show good faith before pursuing a second preliminary hearing on any theory. This decision aligns constitutional doctrine with practical case management and ensures that preliminary hearings function fairly without inviting unnecessary retrials or tactical gamesmanship.