In re Gestational Agreement , 2019 UT 40 ( 2019 )


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  •                 This opinion is subject to revision before final
    publication in the Pacific Reporter
    
    2019 UT 40
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    IN RE GESTATIONAL AGREEMENT
    N.T.B, J.G.M., D.B., and G.M.,
    Petitioners and Appellants
    No. 20160796
    Filed August 1, 2019
    On Direct Appeal
    Fifth District, St. George
    The Honorable Jeffrey C. Wilcox
    No. 162500035
    Attorneys:
    Edwin S. Wall, Damian E. Davenport, Salt Lake City,
    for petitioners and appellants
    Sean D. Reyes, Att’y Gen, Tyler R. Green, Solic. Gen.,
    Brent A. Burnett, Asst. Solic. Gen., Salt Lake City,
    for amici State of Utah
    CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
    ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE,
    and JUDGE DIREDA joined.
    JUSTICE PEARCE filed a concurring opinion in which
    JUSTICE HIMONAS joined.
    ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion.
    Due to her retirement, JUSTICE DURHAM did not participate herein;
    and DISTRICT COURT JUDGE MICHAEL D. DIREDA sat.
    JUSTICE PETERSEN became a member of the Court on
    November 17, 2017, after oral argument in this matter, and
    accordingly did not participate
    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    CHIEF JUSTICE DURRANT, opinion of the Court:
    Introduction
    ¶1 This appeal comes to us unopposed. A married couple, both
    men, wish to become parents. The couple entered into an agreement
    with a woman and her husband to have the woman act as a
    gestational surrogate, carrying a fertilized embryo that contains the
    genetic material of one of the couple. In Utah, by statute, this type of
    “gestational agreement” “is not enforceable” unless it is “validated
    by a tribunal.”1 A court “may issue an order validating the
    gestational agreement” “only on finding that” certain conditions are
    met, one such condition being that “medical evidence” must be
    presented “show[ing] that the intended mother is unable to bear a
    child or is unable to do so without unreasonable risk to her physical
    or mental health or to the unborn child.”2
    ¶2 The intended parents, prospective gestational mother, and
    her husband (collectively, Petitioners) filed a joint petition, pursuant
    to the statute, requesting that the district court validate their
    gestational agreement. The court denied the petition, reasoning that
    the statute’s use of the words “mother and her plainly refer to a
    woman,” and concluding that because “neither of the legally
    married intended parents are women the Court must deny their
    petition.” Petitioners appealed, and the court of appeals certified the
    case to us.
    ¶3 Petitioners argue, first, that the statute, as interpreted by the
    district court, violates the Uniform Operation of Laws provision of
    the Utah Constitution, as well as the Due Process and Equal
    Protection Clauses of the United States Constitution. They also make
    a statutory interpretation argument, asserting that the word
    “mother” should be interpreted in a gender-neutral way to mean
    “parent.” The State of Utah has submitted an amicus brief agreeing
    with Petitioners’ second argument and urging us to interpret the
    statute in a gender-neutral fashion so as to avoid the constitutional
    questions. The State relies on a statutory rule of construction
    instructing courts to interpret a “word used in one gender [to]
    include[] the other gender” when doing so would not be
    “inconsistent with the manifest intent of the Legislature,” or
    1   UTAH CODE § 78B-15-809(1).
    2   
    Id. § 78B-15-803(1),
    (2).
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                                   Opinion of the Court
    “repugnant to the context of the statute.”3 According to the State,
    this rule of construction requires us to read the word “mother” as
    “father” or “parent.”
    ¶4 But Petitioners’ and the State’s proposed statutory
    interpretation is “inconsistent with the manifest intent of the
    Legislature” and “repugnant to the context of the statute.”4 Their
    3   See 
    id. § 68-3-12(1).
       4  It is important to explain the meaning of the word “repugnant”
    in the statutory phrase “repugnant to the context of the statute.” See
    UTAH CODE § 68-3-12. Although the term “repugnant” is often used
    to describe matters that are “distasteful, objectionable, or offensive,”
    Repugnant, DICTIONARY.COM,
    www.dictionary.com/browse/repugnant? (last accessed Jan. 08,
    2018), when used in a statutory context, as in section 68-3-12,
    “repugnant” generally is defined as “[i]nconsistent or irreconcilable
    with,” or “contrary or contradictory to,” Repugnant, BLACK’S LAW
    DICTIONARY (11th ed. 2019); see also Pac. Disc. Co. v. Jackson, 
    179 A.2d 745
    , 747 (N.J. 1962) (“In statutory construction, repugnant is perhaps
    best equated with irreconcilable conflict.”); Repugnancy, BLACK’S LAW
    DICTIONARY (11th ed. 2019) (“An inconsistency or contradiction
    between two or more parts of a legal instrument (such as a contract
    or statute).”). We have repeatedly applied this latter meaning of the
    term when dealing with statutes repealed by implication. See, e.g.,
    Nelden v. Clark, 
    59 P. 524
    , 525–26 (Utah 1899) (“If section 286
    is repugnant to section 206, or so contradictory or irreconcilably in
    conflict with it that the two sections cannot be harmonized in order to
    effect the purposes of their enactment, then the later act may repeal
    the former . . . . So, if an earlier statute is impliedly repealed by a
    later one on account of repugnancy or inconsistency between the two,
    the repeal will be measured by the extent of the conflict or
    inconsistency between the acts . . . .” (emphases added)); Union Pac.
    R.R. Co. v. Pub. Serv. Comm’n, 
    134 P.2d 469
    , 474 (Utah 1943) (“It is
    elementary that statute may be repealed by implication . . . where the
    provisions of a latter statute are clearly and manifestly repugnant to
    the provisions of existing statutes . . . . Such repeals, however, are not
    favored, and if two apparently conflicting acts can be reasonably
    construed so as to reconcile and give effect to each, such construction
    should be adopted.”). We likewise apply the same meaning here.
    Thus, in concluding that the proposed interpretation is “repugnant
    to the context of the statute” under section 68-3-12, we mean it is
    (Continued)
    3
    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    suggested reading would effectively nullify the requirement that an
    intended mother show medical evidence that she is unable to bear a
    child altogether or without serious risk of harm to her or the child—
    an action that would undercut the legislature’s intention.
    Additionally, their proposal contradicts provisions within the Utah
    Uniform Parentage Act (Act)5—the act encompassing the gestational
    agreement statute—that explicitly separate “mother” and “father”
    into distinct gender-specific terms. Because Petitioners’ and the
    State’s proposed interpretation is inconsistent with the manifest
    intent of the legislature and repugnant to the context of the statute,
    we are statutorily precluded from applying the suggested rule of
    construction. We therefore hold that the district court’s
    interpretation is consistent with the manifest intent of the legislature
    and thus address the constitutional challenge to the statute.
    ¶5 Under the district court’s interpretation, the intended
    mother requirement precludes married same-sex male couples from
    obtaining a valid gestational agreement—a benefit statutorily linked
    to marriage. Petitioners argue that recent United States Supreme
    Court precedent precludes states from denying similarly situated
    same-sex couples marital benefits afforded to couples of the opposite
    sex,6 and the State does not oppose this argument. Accordingly, we
    hold section 78B-15-803(2)(b) unconstitutional. We further hold that
    the unconstitutional subsection should be severed, leaving the
    remainder of the statute intact, because doing so would not disrupt
    the overall operation of the Act or undermine the legislature’s intent
    “inconsistent, irreconcilable, or in disagreement with the other
    language of [the] statute,’” Laase v. 2007 Chevrolet Tahoe, 
    776 N.W.2d 431
    , 437 (Minn. 2009) (citation omitted) (internal quotation marks
    omitted), or “contrary to the purpose of the statute,” Commonwealth
    v. Bradley, 
    998 N.E.2d 774
    , 779 (Mass. 2013).
    5   UTAH CODE § 78B-15-101 to -902.
    6 See Obergefell v. Hodges, 
    135 S. Ct. 2584
    , 2605 (2015) (“[T]he State
    laws challenged by Petitioners in these cases are now held invalid to
    the extent they exclude same-sex couples from civil marriage on the
    same terms and conditions as opposite-sex couples.”); Pavan v. Smith,
    
    137 S. Ct. 2075
    , 2078 (2017) (concluding that states may not deny
    “married same-sex couples access to the ‘constellation of benefits
    that the Stat[e] ha[s] linked to marriage’” (alterations in original)
    (quoting 
    Obergefell, 135 S. Ct. at 2601
    )).
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                             Opinion of the Court
    in enacting the statute. We therefore reverse and remand for further
    proceedings consistent with this opinion.
    Background
    ¶6 Petitioners N.T.B. and J.G.M. (Intended Parents) are a
    married same-sex male couple. Petitioners D.B. and G.M. are an
    opposite-sex married couple who entered into a written gestational
    surrogacy agreement with the Intended Parents. The four
    individuals filed a joint petition requesting that the district court
    validate their agreement, in accordance with the statutory scheme
    contained in Utah Code sections 78B-15-801 through 809, the
    provisions of the Utah Uniform Parentage Act dealing with
    gestational agreements. After reviewing Petitioners’ joint
    memorandum in support of the petition and holding a telephonic
    hearing on the matter, the district court issued an order denying the
    petition.
    ¶7 In its order, the district court expressed “concern[] about the
    language of” Utah Code section 78B-15-803(2)(b), which requires, as
    a prerequisite to court approval, the court to find that “medical
    evidence shows that the intended mother is unable to bear a child or
    is unable to do so without unreasonable risk to her physical or
    mental health or to the unborn child.” The district court noted that
    Petitioners had “filed a well written and researched” memorandum
    supporting their petition, and had, at the hearing, “presented
    additional well-reasoned arguments as to why the Court should
    interpret the above statutory language in a gender neutral fashion.”
    The district court went so far as to note that “Petitioners’ reasoning is
    sound,” but nevertheless concluded that it could not “say that the
    legislature intended [Utah Code section 78B-15-803(2)(b)] to be
    gender neutral.” Instead, the court concluded that “the word[s]
    mother and her plainly refer to a woman,” and, accordingly, found
    itself “bound to apply the statute as written.” The court concluded
    that, because “neither of the legally married intended parents are
    women,” it “must deny their petition.”
    ¶8 The Petitioners appealed, again unopposed. Before the court
    of appeals set a briefing schedule, Petitioners moved for summary
    disposition under rule 10(a)(2)(B) of the Utah Rules of Appellate
    Procedure, seeking reversal on the basis of “manifest error.” The
    court of appeals denied the motion, concluding that “the outcome
    [Petitioners] request requires statutory interpretation and is a matter
    of first impression,” making summary disposition inappropriate.
    The court of appeals then certified the case to this court. As we
    5
    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    further discuss below, we have jurisdiction under Utah Code
    section 78A-3-102(3)(b).
    Standard of Review
    ¶9 The Petitioners raise two issues on appeal: first, whether the
    district court misinterpreted the applicable statute by failing to “give
    [it] a gender neutral reading,” and second, whether, under the
    district court’s reading, the statute is unconstitutional under either
    the state or federal constitution. The proper interpretation of a
    statute and its constitutionality are questions of law that we review
    for correctness.7
    Analysis
    ¶10 Petitioners first argue that the district court misinterpreted
    the Utah Code by failing to read the statute in a gender-neutral way
    in order to avoid constitutional concerns. The State agrees with
    Petitioners and urges us to interpret “mother” to mean “father” or
    “parent,” relying on our rules of statutory construction for support.
    Employing our rules of statutory construction and the canon of
    constitutional avoidance to construe the statute in a gender-neutral
    manner is inconsistent, however, with the manifest intent of the
    legislature and is repugnant to the context of the statute. We
    therefore interpret “mother” in section 78B-15-803(2)(b) of the Utah
    Code to mean “female parent,” thereby compelling a constitutional
    analysis of the statute. Because a plain reading of
    section 78B-15-803(2)(b) works to deny certain same-sex married
    couples a marital benefit freely afforded to opposite-sex married
    couples, we hold the statute violates the Equal Protection and Due
    Process Clauses of the Fourteenth Amendment, under the analysis
    set forth in Obergefell.8 We likewise hold that section 78B-15-803(2)(b)
    is severable from the Act.
    7  State v. Outzen, 
    2017 UT 30
    , ¶ 5, 
    408 P.3d 334
    (“We review
    questions of statutory interpretation for correctness, affording no
    deference to the district court’s legal conclusions.” (citation omitted)
    (internal quotation marks omitted)); State v. Greenwood, 
    2012 UT 48
    ,
    ¶ 26, 
    297 P.3d 556
    (“[T]he law is clear that appellate courts review
    the constitutionality of a statute for correctness, giving no deference
    to the lower court’s interpretation.”).
    8   
    135 S. Ct. 2584
    (2015).
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                               Opinion of the Court
    I. We Have Jurisdiction to Hear This Case
    ¶11 Before reviewing Petitioners’ arguments, we must first
    address the question of jurisdiction. As noted above, this case comes
    before us in a unique posture. By statute, all parties must jointly file a
    petition with the district court in order to validate a gestational
    agreement. Utah Code expressly states that the court may issue an
    order validating a gestational agreement only on a finding that,
    among other things, “all parties have voluntarily entered into the
    agreement and understand its terms.”9 The entire proceeding is
    therefore predicated on the complete agreement of the relevant
    parties; no adverse party may exist. Indeed, no respondent
    participated in the proceedings before the district court in this case
    and none appears before us now on appeal.10 So by statutory
    scheme, there is no controversy between adverse parties before us.
    ¶12 Ordinarily, the lack of adversariness present here would
    raise constitutional questions of justiciability. The Utah Constitution
    vests the courts with the “judicial power of the state,”11 and therefore
    “we are constitutionally limited to wield only ‘judicial power.’”12
    This “judicial power . . . is generally understood to be the power to
    hear and determine controversies between adverse parties.”13 Thus,
    generally, in “the absence of any justiciable controversy between
    9   UTAH CODE § 78B-15-803(2)(e) (emphasis added).
    10 While the State has submitted a brief on appeal, it was in
    response to the notice Petitioners were required to provide the State
    pursuant to rule 25A of the Utah Rules of Appellate Procedure of
    their constitutional challenge. The State is not a defendant or
    respondent in this case, but merely an amicus under the rules.
    11   UTAH CONST. art VIII, § 1.
    12 Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union,
    
    2012 UT 75
    , ¶ 20, 
    289 P.3d 582
    ; see also UTAH CONST. art V, § 1
    (stating that the “powers of the government of the State of Utah shall
    be divided into three distinct departments,” and that “no person
    charged with the exercise of powers properly belonging to one of
    these departments, shall exercise any functions appertaining to
    either of the others”).
    13 Carlton v. Brown, 
    2014 UT 6
    , ¶ 29, 
    323 P.3d 571
    (emphasis
    added) (quoting Salt Lake City v. Ohms, 
    881 P.2d 844
    , 849 (Utah
    1994)).
    7
    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    adverse parties, the courts are without jurisdiction.” 14 Stated
    differently, “judicial power” in Utah has traditionally been limited to
    the adjudication of disputes, and where no dispute between
    opposing parties exists, the court is without jurisdiction. Because no
    dispute between opposing parties is present here, we normally
    would dismiss this case for lack of jurisdiction.
    ¶13 But while the gestational agreement statute certainly does
    not fit the traditional principles of the “judicial power“—in that it
    precludes a controversy between adverse parties—adversariness
    does not completely define the scope of our constitutional power.
    Certain functions that our courts perform may be both entirely
    non-adversarial and still appropriately fall within the “judicial
    power,” by virtue of the fact that these functions were intended by
    the framers of our constitution to be included in the constitutional
    grant to the judiciary. We believe that the validation of gestational
    agreements fits within this category because the founders intended
    adoption—or more specifically, the termination or creation of
    parental rights—to be a substantive category over which Utah courts
    had historical power to preside, notwithstanding the absence of a
    controversy between adverse parties.
    ¶14 A review of the history of Utah adoption statutes around the
    time of the framing reveals that early adoption proceedings, like
    gestational agreement proceedings today, generally required the
    joint consent of both the adoptive parents and the biological parents
    before a court could create a legally enforceable adoption. In 1884, a
    law was passed in the Utah Territory that allowed for the adoption
    of children through the mutual consent of the parties involved. It
    provided that the original parents or guardians “may make a
    statement in writing before the probate judge of the county . . . that
    he, she or they, voluntarily relinquish all right to the custody of, and
    power and control over such child.”15 Additionally, “the person
    desiring to adopt such child” had to make a written statement that
    “he or she freely and voluntarily adopt[ed] such child . . . with such
    limitations and conditions as shall be agreed upon by the parties.”16
    The probate judge was then required to hold a hearing and “render a
    14Id. (quoting Williams v. Univ. of Utah, 
    626 P.2d 500
    , 503 (Utah
    1981)).
    15   1884 Utah Laws 52.
    16   
    Id. 8 Cite
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                              Opinion of the Court
    decree . . . in accordance with the conditions and stipulations of [the
    parties’ agreement],” unless the judge found that “such proceedings
    are not for the best interest of the child.”17 In this territorial regime,
    courts were apparently expected to preside over a non-adversarial
    hearing, and make a judgment in the face of—and independent of—
    an agreement brought to it by the parties. Thus, before the Utah
    Constitution was adopted, courts apparently had power to preside
    over non-adversarial adoption proceedings.
    ¶15 Similarly, in 1898, shortly after the Utah Constitution was
    adopted, the Utah legislature codified a new adoption statute
    establishing a non-adversarial statutory scheme for adoption cases.
    The statute provided that
    [t]he person adopting a child and the child adopted
    and the other persons whose consent is necessary, must
    appear before the judge of the district court of the
    county where the person adopting resides, and the
    necessary consent must thereupon be signed and an
    agreement be executed by the person adopting to the
    effect that the child shall be adopted and treated in all
    respects as his own lawful child.18
    The judge was then required to “examine all persons appearing
    before him . . . and if satisfied that the interests of the child will be
    promoted by the adoption, [was required to] make out an order
    declaring that the child shall thenceforth be regarded and treated in
    all respects as the child of the person adopting.”19 Like the territorial
    regime, this statute required a judge’s approval of a
    mutually-consented adoption agreement in order for an adoption to
    be legally binding; no adverse party was contemplated.
    ¶16 Both the 1884 and 1898 statutes suggest that the founders of
    the Utah Constitution likely intended the grant of “judicial power”
    to include, in addition to the power to hear and decide controversies
    between adverse parties, the substantive power over the termination
    and creation of parental rights in non-adversarial matters. These
    statutes show that both shortly before and directly after the adoption
    of the Utah Constitution, Utah courts frequently presided over
    17   
    Id. at 53.
       18   REVISED STATUTES OF UTAH, tit. 1, § 6 (1898) (emphasis added).
    19   
    Id. § 7.
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    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    non-adversarial hearings involving the termination or creation of
    parental rights. These statutes also show that the courts had
    sufficient power to participate in proceedings that lacked a dispute
    between opposing parties. Given the prevalence of this historic
    function of the court, the founders more than likely understood the
    “judicial power” grant provided in our constitution to include the
    power to hear such non-adversarial proceedings. Thus, we cannot
    say, at least with respect to the termination and creation of parental
    rights, that such non-adversarial proceedings are outside the scope
    of our “judicial power.” Rather, the judicial power includes the
    power to hear non-adversarial proceedings when these proceedings
    involve parental rights.
    ¶17 Here, the validation of gestational agreements falls within
    our courts’ power over the creation and termination of parental
    rights. Like adoption proceedings, the validation of a gestational
    agreement effects a change in parental rights. If a gestational
    agreement is not validated as set out in Utah Code
    section 78B-15-803, then “the parent-child relationship is determined
    as provided in [Utah Code sections 78B-15-201 through 204],”20
    which provides that the woman who gave birth to the child, i.e., the
    gestational mother, shall be considered the mother and the parent of
    the child.21 But with a valid gestational agreement, the intended
    parents can require the court to issue an order that “confirm[s] that
    the intended parents are the parents of the child” after the birth of
    the child.22 Thus, the gestational agreement statute both creates and
    terminates parental rights.
    ¶18 Because the validation of a gestational agreement involves
    the termination and creation of parental rights—a substantive power
    intended to be included in the constitutional grant of judicial power
    to the courts—it is appropriate for our courts to participate in their
    validation, despite the lack of adversariness in gestational agreement
    proceedings.23 We therefore hold that the traditional principle of
    20   UTAH CODE § 78B-15-809(2).
    21   
    Id. § 78B-15-201(1).
       22   
    Id. § 78B-15-807(1)(a).
       23We do not consider at this time whether the founders
    contemplated additional non-adversarial functions of the court,
    beyond the termination and creation of parental rights, to be
    (Continued)
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                                Opinion of the Court
    adversariness in our justiciability jurisprudence does not apply to
    the creation and termination of parental rights.24 Accordingly, we
    have authority to hear Petitioners’ non-adversarial case on
    certification from the court of appeals, pursuant to Utah Code
    section 78A-3-102(3)(b).
    II. The Legislature Intended “Mother” to Mean “Female Parent” in
    Utah Code Section 78B-15-803
    ¶19 “When interpreting a statute, it is axiomatic that this court’s
    primary goal is to give effect to the legislature’s intent in light of the
    purpose that the statute was meant to achieve.”25 It is well
    established that “the best evidence of the legislature’s intent is ‘the
    plain language of the statute itself.’”26 Therefore, “we assume, absent
    a contrary indication, that the legislature used each term advisedly
    according to its ordinary and usually accepted meaning,” and “we
    presume[] that the expression of one [term] should be interpreted as
    the exclusion of another.”27
    ¶20 On that basis, we assume, “absent a contrary indication,”
    that the use of the word “mother” within Utah Code
    section 78B-15-803 was used “advisedly,” and to the exclusion of
    other words, like “father” or “parent.” Because the plain and
    included in the “judicial power” grant, as this question is not before
    our court today.
    24  We have conducted our justiciability analysis under the
    framework established in our caselaw. In his concurring opinion,
    Justice Pearce concurs in our result, but he also suggests that in a
    future case we may wish to revisit the way in which we analyze the
    scope of the judicial power, and he sets forth a proposed framework
    for conducting such an analysis. Because it is unnecessary for us to
    do so to resolve the case before us, we take no position on Justice
    Pearce’s arguments.
    25  Monarrez v. Utah Dep’t of Transp., 
    2016 UT 10
    , ¶ 11, 
    368 P.3d 846
    (citation omitted) (internal quotation marks omitted).
    26   State v. Miller, 
    2008 UT 61
    , ¶ 18, 
    193 P.3d 92
    (citation omitted).
    27Marion Energy, Inc. v. KFJ Ranch P’ship, 
    2011 UT 50
    , ¶ 14, 
    267 P.3d 863
    (alterations in original) (citations omitted) (internal
    quotation marks omitted).
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    Opinion of the Court
    ordinary meaning of the word “mother” is “female parent,”28 we are
    bound, as the district court concluded it was, to read the statute as
    requiring that one of the intended parents be a female parent.29
    ¶21 Petitioners and the State argue, however, that there exists an
    express codified indication that the legislature did not necessarily
    intend to restrict the word “mother” to mean only a female parent.
    They point to the Utah Code section 68-3-12, which provides the
    following specific instructions for construing terms that are phrased
    in only one gender or phrased in singular terms: “unless the
    construction would be . . . inconsistent with the manifest intent of the
    Legislature; or . . . repugnant to the context of the statute,” a word
    used in “[t]he singular includes the plural, and the plural includes
    the singular” and “[a] word used in one gender includes the other
    gender.”30 The State urges us to apply the latter rule of construction
    and read the word “mother” as including the “other gender,” so
    that, in effect, “mother” means “parent.” To do so, as noted above,
    we would need to depart from the plain meaning of the word
    “mother.”
    ¶22 The State correctly notes that there is a direct statutory
    indication that words in one gender should be construed to include
    the other. But, as noted in the statute itself, we apply these statutory
    rules of construction only when they would not be “inconsistent
    with the manifest intent of the Legislature” or “repugnant to the
    context of the statute.”31 Here, applying the State’s interpretation of
    “mother” as including the “other gender” contradicts the legislative
    intent as evidenced in the plain language of the Act and is repugnant
    to the context of the statute.
    28 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1474 (2002);
    see also mother, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A woman
    who has given birth to, provided the egg for, or legally adopted a
    child.” (emphasis added)).
    29 Petitioners do not dispute that the word “mother” was
    intended to denote a gender-specific connotation. Rather, Petitioners
    note that the “statute was . . . written with gender specific language,”
    and that the term “Intended Mother” was used advisedly to the
    exclusion of “Intended Parent” or “Intended Father.”
    30   UTAH CODE § 68-3-12(1).
    31   
    Id. 12 Cite
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    ¶23 Under the State’s proposed reading, the statute would
    provide that a court could validate a gestational agreement where
    “medical evidence shows that the intended mother parent is unable
    to bear a child.” Under such a construction, an opposite-sex couple
    could obtain court validation merely by demonstrating that an
    intended father—who is an “intended parent”—is incapable of
    bearing a child. Because every opposite-sex couple could make this
    showing automatically (every opposite-sex couple contains a male
    member and obviously a male cannot bear a child), this
    interpretation would write the intended mother requirement out of
    the statute.32 It would therefore be “inconsistent with the manifest
    intent of the Legislature” and “repugnant to the context of the
    statute” to read “mother” to mean “parent.”
    ¶24 Even were we to employ both codified rules of construction
    noted above—first, that the word “mother” be construed to include
    the other gender, and second, that the singular be construed to
    include the plural—the problem remains. Under this approach, we
    would construe the statute to mean that Petitioners must
    demonstrate that “medical evidence shows that the intended mother
    is parents are unable to bear a child or isare unable to do so without
    unreasonable risk to hertheir physical or mental health or to the
    unborn child.” Unlike the State’s proposed reading, this
    interpretation does not allow one intended parent’s inability to bear
    a child to permit the district court to validate a gestational
    agreement. Instead, such reading would require that the intended
    parents as a unit be incapable of safely bearing a child. While this
    interpretation does not eviscerate the intended mother requirement
    of section 78B-15-803(2)(b) in the same way as the State’s proposed
    reading, it nevertheless contradicts the plain language of the statute,
    which clearly limits the meaning of the word “mother” to female
    parent.
    ¶25 It is well established that “terms of a statute are to be
    interpreted as a comprehensive whole and not in a piecemeal
    32See Monarrez, 
    2016 UT 10
    , ¶ 11 (“[W]e avoid ‘[a]ny
    interpretation which renders parts or words in a statute inoperative
    or superfluous’ . . . .” (second alteration in original) (citation
    omitted)).
    13
    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    fashion.”33 So a “proposed interpretation that is plausible in isolation
    may . . . ‘lose[] its persuasive effect when we [seek to] harmonize [it]
    with the rest of’ the statutory scheme.”34 That is precisely the case
    here.
    ¶26 An examination of a few additional provisions within the
    Act makes clear that a gender-neutral interpretation of the
    gestational agreement provisions is untenable. Section 78B-15-102,
    the “Definitions” section of the Act, clearly illustrates that the
    legislature intended the term “mother” to have a distinct and
    separate meaning from the word “father.” While the Act fails to
    define “mother” or “father” expressly, other definitions in section
    102 indicate the word “mother” was intended to be tied to the female
    gender. For example, the legislature expressly linked “mother” to
    “woman” in its definition of “Gestational mother”: “‘Gestational
    mother’ means an adult woman who gives birth to a child under a
    gestational agreement.”35 Additionally, the legislature repeatedly
    linked “father” to the male gender. For example, “Adjudicated
    father” is defined as “a man who has been adjudicated by a tribunal
    to be the father of a child,”36 “Alleged father” is defined as “a man
    who alleges himself to be, or is alleged to be, the genetic father or a
    possible genetic father of a child,”37 and “Declarant father” is defined
    as “a male who . . . claims to be the genetic father of a child.”38 And, in
    case there was any confusion as to the term “man” within these
    definitions, the legislature further stated that “‘Man’ . . . means a
    male individual.”39 Thus, it seems clear from the statute’s language
    33Estate of Berkemeir ex rel. Nielsen v. Hartford Ins. Co. of the
    Midwest, 
    2004 UT 104
    , ¶ 10, 
    106 P.3d 700
    (citation omitted) (internal
    quotation marks omitted).
    34 Oliver v. Utah Labor Comm’n, 
    2017 UT 39
    , ¶ 21, 
    424 P.3d 22
    (second, third, and fourth alterations in original) (citation omitted).
    35   UTAH CODE § 78B-15-102(14) (emphasis added).
    36   
    Id. § 78B-15-102(1)
    (emphases added).
    37   
    Id. § 78B-15-102(2)
    (emphases added).
    38Id. § 78B-15-102(8)     (emphases    added);      see    also    
    id. § 78B-15-102(20)
    (“‘Presumed Father’ means a man who, by
    operation of law . . . is recognized as the father of a child until that
    status is rebutted or confirmed as set forth in this chapter.”
    (emphases added)).
    39   
    Id. § 78B-15-102(15).
    14
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                               Opinion of the Court
    that the legislature understood “mother” to be female-specific and
    distinct from the male-specific term “father.”
    ¶27 Likewise, the legislature repeatedly associated the term
    “mother” with the physical act of carrying and giving birth to a
    child—an act performed exclusively by females. The Act uses the
    term “birth mother” throughout the statute,40 while referring to
    fathers mainly as “alleged fathers,” “adjudicated fathers,” or
    “declarant fathers.” Similarly, several definitions within section 102
    expressly tie motherhood to the act of giving birth. For example, the
    statute defines “Birth expenses” to include “expenses for the
    biological mother during her pregnancy and delivery,”41 and, as stated
    above, defines “Gestational mother” as “an adult woman who gives
    birth to a child under a gestational agreement.”42 Likewise, the act of
    giving birth is directly linked to womanhood: the Act states that the
    term “Donor” does not include “a husband who provides sperm, or
    a wife who provides eggs,” or “a woman who gives birth to a child.”43
    The word “mother” under the statute, therefore, denotes a gender
    that is biologically capable of carrying and giving birth to a child, as
    opposed to one that is not.
    ¶28 The Act also repeatedly draws a distinct line between
    “father” and “mother.” In its definitional section the Act provides
    that “‘Genetic testing’ means an analysis of genetic markers to
    exclude or identify a man as the father or a woman as the mother of a
    child.”44 Similarly, in determining the parent-child relationship, the
    Act provides that “[t]he mother-child relationship is established
    between a woman and a child” while “[t]he father-child relationship is
    established between a man and a child.”45 Thus, it is clear that the
    legislature intended the term “mother” to be read as a female parent,
    distinct and separate from the word “father,” and not as a
    gender-neutral term.
    40 See, e.g., 
    id. § 78B-15-302.
    Also, “Birth Mother” is defined by the
    statute as “the biological mother of a child.” 
    Id. § 78B-15-102(5)
    (emphasis added).
    41   
    Id. § 78B-15-102(4)
    (emphases added).
    42   
    Id. § 78B-15-102(14)
    (emphases added).
    43   
    Id. § 78B-15-102(10)
    (emphasis added).
    44   
    Id. § 78B-15-102(13)
    (emphases added).
    45   
    Id. § 78B-15-201(1),
    (2) (emphases added).
    15
    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    ¶29 Accordingly, reading the term “mother” to mean “father” or
    “parent,” as Petitioners and the State suggest, is “inconsistent with
    the manifest intent of the Legislature” and “repugnant to the context
    of the statute.”46 Given the legislature’s repeated efforts to
    distinguish “mother” from “father,” we cannot say that the
    legislature intended “mother” to include “father” or “parent.” Thus,
    the construction statute, by its own terms, precludes us from using
    those rules here.
    ¶30 In addition to the clear language of the statute, it seems
    highly unlikely the legislature intended Petitioners’ proposed
    interpretation, given the legal landscape at the time the law was
    passed. As noted by the Petitioners, “[t]he statute was . . . written
    with gender specific language at a time when marriage in Utah could
    only be between a man and a woman.” Section 78B-15-803 was
    adopted in 2005—ten years before the United States Supreme
    Court’s decision extending the constitutional right to marry to
    same-sex couples. At the time the law went into effect, Utah’s
    constitutional provision prohibiting same-sex marriage was
    operative and legally enforceable.47 The legislature therefore likely
    did not contemplate a reading of the statute that would allow
    same-sex couples to enter valid gestational agreements—a benefit
    the legislature expressly conditioned on marriage.
    ¶31 Accordingly, the district court was correct in holding the
    word “mother” under section 78B-15-803 unambiguously refers to
    woman and that it was bound to apply the statute as written.
    III. The Canon of Constitutional Avoidance is Inapplicable
    ¶32 Both the Petitioners and the State attempt to bolster their
    gender-neutral interpretation by citing to this court’s canon of
    constitutional avoidance. The State argues that “[u]nder the
    constitutional avoidance doctrine, the Court should interpret
    ‘mother’ and ‘her’ in section 78B-15-803 to include ‘father’ and ‘his.’”
    Such construction, the State suggests, “avoids the serious . . .
    constitutional questions raised by the district court’s alternative
    construction.” But Petitioners and the State jump the gun.
    46   
    Id. § 68-3-12(1)(a).
        See UTAH CONST. art I, § 29(2) (2005) (“No other domestic union,
    47
    however denominated, may be recognized as a marriage or given the
    same or substantially equivalent legal effect.”).
    16
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                               Opinion of the Court
    ¶33 It is true that when faced with multiple reasonable readings
    of a statute, we construe the statute in a way that avoids doubts as to
    its constitutionality.48 We have cautioned, however, that “too-hasty
    invocation of the canon can easily undermine legislative intent.”49
    An appeal to constitutional avoidance is “not an invitation for us to
    break faith with the statute’s text.”50 So even “when we are trying to
    save a statute from constitutional concerns, we are not at liberty to
    rewrite the statute.”51
    ¶34 Here, Petitioners’ and the State’s premature invocation of
    the canon undermines the legislative intent. As noted above, reading
    “mother” to include the “other gender” would contradict the plain
    language of the statute and would work to eliminate the intended
    mother requirement from section 78B-15-803. Such a reading would
    also contradict the legislature’s intent in enacting the gestational
    agreement portion of the Act—which was to provide opposite-sex
    married couples the ability to form valid gestational agreements.
    Accordingly, we are tied to the statute’s text and may not rewrite or
    depart from its language for fear of constitutional concerns. Rather,
    we are required to confront the constitutionality of the statute head
    on.
    IV. Utah Code Section 78B-15-803(2)(b) is Unconstitutional
    Under Obergefell and Pavan
    ¶35 Petitioners alternatively argue that the intended mother
    requirement in section 78B-15-803(2)(b) violates the Utah and federal
    constitution. The State has failed to oppose Petitioners’ constitutional
    argument despite receiving proper notice, pursuant to rule 25A of
    the Utah Rules of Appellate Procedure, of Petitioners’ intention to
    challenge the constitutionality of the statute. The State has waived its
    right to defend the statute’s constitutionality. Our review of this
    issue therefore could stop here. Nevertheless, we choose to fully
    48 Brown v. Cox, 
    2017 UT 3
    , ¶ 15, 
    387 P.3d 1040
    (“[W]e will
    endeavor to avoid constitutional issues by construing ‘a statute as
    constitutional wherever possible, resolving any reasonable doubt in
    favor of constitutionality.’” (citation omitted)).
    49   Utah Dept. of Transp. v. Carlson, 
    2014 UT 24
    , ¶ 24, 
    332 P.3d 900
    .
    50   State v. Garcia, 
    2017 UT 53
    , ¶ 59, 
    424 P.3d 171
    .
    51   
    Id. 17 IN
    RE GESTATIONAL AGREEMENT
    Opinion of the Court
    address Petitioners’ constitutional argument in light of the important
    issues at stake in this case.
    ¶36 As noted above, section 78B-15-803(2)(b) of the Utah Code
    effectively conditions the validation of a gestational agreement on at
    least one of the two intended parents being a female parent. This
    squarely violates Obergefell in that it deprives married same-sex male
    couples of the ability to obtain a valid gestational agreement—a
    marital benefit freely provided to opposite-sex couples. Under the
    statute, married same-sex male couples are treated differently than
    married opposite-sex couples. Because under Obergefell same-sex
    married couples are constitutionally entitled to the “constellation of
    benefits that the States have linked to marriage,”52 we hold the
    intended mother requirement in Utah Code section 78B-15-803(2)(b)
    unconstitutional.
    ¶37 In Obergefell, the United States Supreme Court held as
    follows: “the right to marry is a fundamental right inherent in the
    liberty of the person, and under the Due Process and Equal
    Protection Clauses of the Fourteenth Amendment couples of the
    same-sex may not be deprived of that right and that liberty.”53 The
    Court noted, however, that this right may include not only
    “symbolic recognition,” but also “material benefits to protect and
    nourish the union.”54
    States . . . have throughout our history made marriage
    the basis for an expanding list of governmental rights,
    benefits, and responsibilities. These aspects of marital
    status include: taxation; inheritance and property
    rights; rules of intestate succession; spousal privilege in
    the law of evidence; hospital access; medical
    decisionmaking authority; adoption rights; the rights
    and benefits of survivors; birth and death certificates;
    professional ethics rules; campaign finance restrictions;
    workers’ compensation benefits; health insurance; and
    child custody, support, and visitation rules.55
    52   Obergefell v. Hodges, 
    135 S. Ct. 2584
    , 2601 (2015).
    53   
    Id. at 2604.
       54   
    Id. at 2601.
       55   
    Id. 18 Cite
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                                Opinion of the Court
    The Court further held that because the “States have contributed to
    the fundamental character of the marriage right by placing that
    institution at the center of so many facets of the legal and social
    order,” there should be “no difference between same- and
    opposite-sex couples with respect to [these rights].”56
    ¶38 While the Obergefell Court did not address at length how
    state laws should be implemented in light of same-sex couples’ right
    to marry, the Court did hold that the Constitution “does not permit
    the State to bar same-sex couples from marriage on the same terms as
    accorded to couples of the opposite sex.”57 On this basis, the Court
    invalidated several challenged state laws in Obergefell “to the extent
    they exclude same-sex couples from civil marriage on the same terms
    and conditions as opposite-sex couples.”58 Thus, Obergefell precluded
    states from denying same-sex couples “the constellation of benefits
    that the States have linked to marriage.”59
    ¶39 The United States Supreme Court recently affirmed this
    notion. In Pavan v. Smith, the Court reviewed an Arkansas statute
    that required the name of a mother’s male spouse to appear on her
    child’s birth certificate, even when the mother conceived the child by
    means of artificial insemination through an anonymous sperm
    donation, but made no such requirement when the mother’s spouse
    was female under the same circumstance.60 The Arkansas statute
    therefore allowed officials to omit the name of a married woman’s
    female spouse from her child’s birth certificate while at the same
    time mandating that the name of a married woman’s male spouse be
    placed on the certificate. Two married same-sex couples brought suit
    seeking a declaration that the state’s law violated the Constitution
    under Obergefell.61 On appeal, a divided Arkansas Supreme Court
    ultimately sided with the state, holding that the statute did “not run
    afoul of Obergefell” because the state law was centered on the
    56   
    Id. 57 Id.
    at 2607 (emphasis added).
    58   
    Id. at 2605
    (emphases added).
    59   
    Id. at 2601.
       60   
    137 S. Ct. 2075
    , 2077 (2017).
    61   
    Id. 19 IN
    RE GESTATIONAL AGREEMENT
    Opinion of the Court
    biological relationship of the mother or father to the child and not
    the marital relationship of the husband and wife. 62
    ¶40 The United States Supreme Court summarily reversed the
    Arkansas Supreme Court’s decision, holding that the law’s
    “differential treatment infringes on Obergefell’s commitment to
    provide same-sex couples ‘the constellation of benefits that the States
    have linked to marriage.’”63 The Court made clear that the state
    chose “to make its birth certificates more than a mere marker of
    biological relationships.”64 Instead, the “State uses those certificates
    to give married parents a form of legal recognition that is not
    available to unmarried parents.”65 Accordingly, the Court held that
    “Arkansas may not, consistent with Obergefell, deny married same-
    sex couples that recognition.”66
    ¶41 Pavan affirms Obergefell’s mandate that married same-sex
    couples be afforded the governmental rights and benefits granted to
    married opposite-sex couples. Under these decisions, states may no
    longer deny benefits conditioned on the institution of marriage to
    same-sex couples which are freely granted to couples of the opposite
    sex. State laws that condone such disparate treatment will be
    declared “unconstitutional to the extent they treat[] same-sex
    couples differently from opposite-sex couples.”67 Thus, the Supreme
    Court has made it abundantly clear that “the Constitution entitles
    same-sex couples to civil marriage ‘on the same terms and conditions
    as opposite-sex couples.’”68
    ¶42 It is with these terms and conditions that we are concerned
    today. Accordingly, we must determine whether section 78B-15-803
    affords a benefit linked to marriage and whether it permits disparate
    treatment of certain same-sex marriages.
    62 Smith v. Pavan, 
    505 S.W.3d 169
    , 178 (Ark. 2016), rev’d per curiam
    
    137 S. Ct. 2075
    (2017).
    63   
    Pavan, 137 S. Ct. at 2077
    (quoting 
    Obergefell, 135 S. Ct. at 2601
    ).
    64   
    Id. at 2078.
       65   
    Id. at 2078–79.
       66   
    Id. at 2079.
       67   
    Id. at 2078.
       68   
    Id. at 2076
    (quoting 
    Obergefell, 135 S. Ct. at 2605
    ).
    20
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                             Opinion of the Court
    ¶43 A valid gestational agreement is undoubtedly a benefit
    linked to marriage. Obtaining a valid gestational agreement is, in
    many cases, one of the most important benefits afforded to couples
    who may not be medically capable of having a biological child. Such
    an agreement works to secure parental rights to an unborn child and
    bestows rights and benefits upon the intended parents. The State has
    explicitly conditioned this benefit on a petitioner’s marital status; no
    unmarried couple may obtain one.69 It is therefore unquestionably
    linked to marriage.
    ¶44 Application of section 78B-15-803(2)(b) results in disparate
    treatment of similarly situated same-sex male marriages. The statute
    requires that medical evidence be presented to the court, showing
    that the intended mother is medically incapable of bearing a child or
    to do so would otherwise harm her or the child. It is impossible for
    married same-sex male couples to meet this requirement since
    neither member is a “mother” under the statute. Requiring one of the
    two intended parents to be female precludes married same-sex male
    couples from entering into a valid gestational agreement70—a benefit
    explicitly conditioned on marriage. The statute therefore treats
    married same-sex male couples differently than married
    opposite-sex couples. Under Obergefell and Pavan, the Constitution
    proscribes such disparate treatment.
    ¶45 Under these cases, married same-sex couples, whether male
    or female, are entitled under the Constitution to the same terms and
    conditions as married opposite-sex couples.71 In other words,
    69UTAH CODE § 78B-15-801(3) (“The intended parents shall be
    married, and both spouses must be parties to the gestational
    agreement.”).
    70 See 
    id. § 78B-15-801(4)
    (“A gestational agreement is enforceable
    only if validated as provided in Section 78B-15-803.”).
    71 Because the Supreme Court’s decisions in Obergefell and Pavan
    make clear that section 78B-15-803(2)(b) violates the U.S.
    Constitution, we need not address Petitioners’ constitutional
    argument under the Uniform Operation of Law clause of the Utah
    Constitution. See State v. Briggs, 
    2008 UT 83
    , ¶ 26, 
    199 P.3d 935
    (“[T]he protections in the federal Constitution provide a
    constitutional floor . . . . [I]f the challenged state action violates the
    federal Constitution, we need not reach the question of whether the
    (Continued)
    21
    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    same-sex couples must be afforded all of the benefits the State has
    linked to marriage and freely grants to opposite-sex couples. Because
    Utah Code section 78B-15-803(2)(b) works to deny certain same-sex
    couples a marital benefit freely accorded to opposite-sex couples, it is
    unconstitutional under Obergefell and Pavan.
    V. Utah Code Section 78B-15-803(2)(b) is Severable From the Act
    ¶46 Having concluded that section 78B-15-803(2)(b) of the Utah
    Code is unconstitutional, we must now determine whether that
    subsection is severable from the rest of the Act.
    ¶47 Petitioners argue that the intended mother requirement is
    severable from the remainder of the statute and so the court may
    “still allow the remaining portion of the statute to remain in effect.”
    The State did not address the constitutional question in its amicus
    brief and therefore made no representation as to the severability of
    the statute.
    ¶48 “When ruling on the constitutionality of a statute, ‘the
    general rule is that statutes, where possible, are to be construed so as
    to sustain their constitutionality. Accordingly, if a portion of the
    statute might be saved by severing the part that is unconstitutional,
    such should be done.’”72
    ¶49 In determining the severability of an unconstitutional
    subsection, “we look to legislative intent.”73 When no express
    legislative intent is present within the statute, “we ‘turn to the statute
    itself, and examine the remaining constitutional portion of the
    statute in relation to the stricken portion.’”74 We review “the statute
    as a whole and its operation absent the offending subsection,” and if
    “the remainder of the statute is operable and still furthers the
    intended legislative purpose, the statute will be allowed to stand.”75
    Utah Constitution provides additional protection; we may instead
    resolve the case with reference only to the federal Constitution.”).
    72 See State v. Briggs, 
    2008 UT 83
    , ¶ 47, 
    199 P.3d 935
    (citation
    omitted).
    73   State v. Lopes, 
    1999 UT 24
    , ¶ 19, 
    980 P.2d 191
    .
    74 Gallivan v. Walker, 
    2002 UT 89
    , ¶ 88, 
    54 P.3d 1069
    (citation
    omitted).
    75   
    Id. (citation omitted)
    (internal quotation marks omitted).
    22
    Cite as: 
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                               Opinion of the Court
    In other words, we look at “whether the remaining portions of the
    act can stand alone and serve a legitimate legislative purpose.”76
    ¶50 The legislature did not include a severability provision or
    any other express indication of its legislative intent regarding
    unconstitutional provisions within the Act itself. So we must
    determine whether the statute is operable and furthers a legitimate
    legislative purpose absent that provision.77
    ¶51 Section 78B-15-803 remains operative even absent the
    intended mother requirement. Section 803(2) requires the district
    court to make eleven findings in order to validate a gestational
    agreement. One of these is the unconstitutional intended mother
    requirement. The other findings are that: (1) residency requirements
    have been satisfied; (2) a home study has been conducted of the
    intended parents and the intended parents meet the standards of
    fitness applicable to adoptive parents; (3) all parties have
    participated in professional counseling where they discussed
    different options and consequences of the agreement; (4) all parties
    have voluntarily entered into the agreement and understand its
    terms; (5) the prospective gestational mother has had a successful
    pregnancy in the past and neither she nor the new child will be
    harmed by her carrying a new child; (6) all parties are at least 21
    years old; (7) an adequate provision has been made for health-care
    expenses in the agreement; (8) consideration paid to the prospective
    gestational mother is reasonable; and (9) neither the prospective
    gestational mother’s eggs, nor (10) her husband’s sperm, are being
    used in the assisted reproduction procedure.78 Striking the intended
    mother requirement from this list does not reduce the significance of
    these other required findings. The district court should still be
    required to make findings on each of the additional ten conditions.
    Severing the intended mother requirement from the statute does
    nothing to affect the operability of the remaining portions of the
    statute.
    ¶52 We next turn to whether the legitimate purpose of the
    statute is still furthered even without the intended mother
    requirement. We hold that it is. Both Petitioners and the State argue
    that the purpose of the statute is to permit married couples to enter
    76   Berry v. Beech Aircraft Corp., 
    717 P.2d 670
    , 686 (Utah 1985).
    77   See Gallivan, 
    2002 UT 89
    , ¶¶ 88–89.
    78   See UTAH CODE § 78B-15-803(2)(a)–(k).
    23
    IN RE GESTATIONAL AGREEMENT
    Opinion of the Court
    into gestational agreements where the couple is medically incapable
    of bearing children on their own. While this is certainly one of its
    purposes, it is not the sole purpose of the statute. Viewing
    section 78B-15-803 as a whole, additional purposes of the statute
    include protecting the well-being of the unborn child and ensuring
    that the parties have adequately considered the consequences of
    their arrangement before entering into a legally enforceable
    gestational agreement. Excising the intended mother provision does
    not undermine these purposes.
    ¶53 As noted above, the legislature made a list of eleven
    findings that must be satisfied before an agreement will be deemed
    enforceable. These include findings on the fitness of the intended
    parents to raise a child, the health of the prospective gestational
    mother, the likelihood that the prospective mother will successfully
    give birth to the child without harming the child, the clarity of the
    agreement, and the parties’ understanding of their arrangement.
    These findings illustrate that the legislature was at least equally
    concerned with the well-being of the unborn child and the parties’
    ability to comprehend the effect of the agreement. Removal of the
    intended mother requirement does not undermine the ability of a
    district court to determine whether the prospective gestational
    mother can safely carry a child, whether the intended parents are fit
    to raise the child, and whether the parties have carefully considered
    their decision to enter the agreement. Thus, the district court will
    serve to ensure that the unborn child is protected and that the
    parties’ carefully considered the effects of the agreement—both
    intended purposes of the statute.
    ¶54 Therefore, the intended mother requirement set forth in
    section 78B-15-803(2)(b) is severable because the remainder of the
    statute will continue to be operable and continue to serve a
    legitimate purpose after the unconstitutional intended mother
    requirement is excised. We therefore remand this case for further
    proceedings consistent with this opinion.
    Conclusion
    ¶55 Under a plain reading of the statute, a gestational agreement
    is unenforceable unless at least one of the intended parents is female.
    This requirement precludes married same-sex male couples from
    obtaining a valid agreement. As required by Obergefell and Pavan, we
    hold that section 78B-15-803(2)(b) is unconstitutional under the
    Fourteenth Amendment’s Equal Protection and Due Process Clauses.
    Additionally, we hold that the intended mother requirement of
    24
    Cite as: 
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                             Pearce, J., concurring
    section 78B-15-803(2)(b) is severable from the remainder of the Act.
    We accordingly reverse and remand for further proceedings
    consistent with this opinion.
    JUSTICE PEARCE, concurring:
    ¶56 I concur in the result the majority reaches, including the
    majority’s conclusion that our judiciary may constitutionally review
    and validate gestational agreements under the statutory framework
    at issue here. I write separately, however, to highlight jurisdictional
    and separation of powers questions implicated in this case,
    particularly given the language the majority uses when addressing
    the issue of jurisdiction. In its discussion, the majority examines the
    “judicial power of the state” conferred on our judiciary by the Utah
    Constitution, and references two “constitutional” limits on the scope
    of that power and the exercise thereof. Supra ¶ 12 (citation omitted).
    Because I question if we have ever squarely confronted whether
    those limits are constitutional requisites, I raise the issues for
    possible exploration in future cases.
    ¶57 First, the majority suggests that the judicial power
    constitutionally vested in our courts contains a general requirement
    of “adversariness.” Supra ¶ 12. The majority asserts that “‘judicial
    power’ in Utah has traditionally been limited to the adjudication of
    disputes, and where no dispute between opposing parties exists, the
    court is without jurisdiction.” Supra ¶ 12. In support, the majority
    recites language from our prior opinions that I find to be potentially
    problematic when utilized in this context, specifically, the statements
    “judicial power . . . is generally understood to be the power to hear and
    determine controversies between adverse parties,” supra ¶ 12
    (alteration in original) (emphasis added to “generally understood”)
    (emphasis omitted from “controversies between adverse parties”)
    (quoting Carlton v. Brown, 
    2014 UT 6
    , ¶ 29, 
    323 P.3d 571
    ), and “in ‘the
    absence of any justiciable controversy between adverse parties, the
    courts are without jurisdiction,’” supra ¶ 12 (quoting Carlton, 
    2014 UT 6
    , ¶ 29). Applying this language, the majority opines that “lack of
    adversariness” would “[o]rdinarily . . . raise constitutional questions
    of justiciability.” Supra ¶ 12.
    ¶58 I worry that we risk equating statements regarding a
    “general understanding” of our judicial power, see supra ¶ 12, with a
    25
    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    rule regarding what must exist before we can exercise that power.79
    Likewise, we should not reflexively equate justiciability principles or
    statements regarding our jurisdictional authority with our
    constitutional “judicial power.” We often use the term “jurisdiction”
    when discussing our authority to entertain a dispute under rules of
    our own making. See State v. Lara, 
    2005 UT 70
    , ¶ 12, 
    124 P.3d 243
    .
    Thus, a statement that we are “without jurisdiction” in a particular
    circumstance does not establish a lack of constitutional authority, but
    invites inquiry as to the source of the jurisdictional limit.
    ¶59 For example, in Gregory v. Shurtleff, we suggested that our
    standing jurisprudence reflects “‘judge-made’” rules regarding our
    exercise of jurisdiction. 
    2013 UT 18
    , ¶ 16 & n.10, 
    299 P.3d 1098
    (quoting 59 AM. JUR. 2D Parties § 30 (2d ed. 2012) (“Standing in the
    state courts is a judge-made doctrine . . . .”)); see also 
    id. ¶ 12
    n.4
    (noting that although separation of powers concerns support certain
    standing requirements, “these concerns do not reflect an absolute,
    constitutionally[]imposed jurisdictional requirement, but rather a
    historical and pragmatic conviction that particular disputes are most
    amenable to resolution in particular forums” (citation omitted)
    (internal quotation marks omitted)). Thus, while we have described
    standing as “rais[ing] fundamental questions regarding [our] basic
    authority over [a] dispute,” Alpine Homes, Inc. v. City of W. Jordan,
    
    2017 UT 45
    , ¶ 2, 
    424 P.3d 95
    (citation omitted), it is not necessarily a
    constitutional limit on our judicial power, cf. United States v. Windsor,
    
    570 U.S. 744
    , 757 (2013) (noting that “[r]ules of prudential standing,
    by contrast [to Article III requirements], are more flexible rule[s] . . .
    of federal appellate practice” (third and fourth alterations in original)
    (citation omitted) (internal quotation marks omitted)).
    79 In addition, we should exercise caution to ensure that we are
    not inadvertently converting a general description of the judiciary’s
    role, created in another context for another purpose, into a
    constitutional limit on our authority. For example, a single-sentence
    summation of the judiciary’s role for purposes of a separation of
    powers analysis, see, e.g., In re Handley’s Estate, 
    49 P. 829
    , 830 (Utah
    1897), hardly tells us the full range of judicial power or the breadth
    of courts’ subject matter jurisdiction. Moreover, a general statement
    regarding the judiciary’s core, prevalent, or traditional
    responsibilities, see, e.g., Carlton v. Brown, 
    2014 UT 6
    , ¶ 29, 
    323 P.3d 571
    ; Salt Lake City v. Ohms, 
    881 P.2d 844
    , 849 (Utah 1994), does not,
    without more, readily translate into an affirmative constitutional
    requirement.
    26
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                              Pearce, J., concurring
    ¶60 It appears that we have never examined whether the Utah
    Constitution requires adversity between parties as a jurisdictional
    prerequisite. The language the majority relies upon for this
    proposition entered our jurisprudence in Citizens’ Club v. Welling, 
    27 P.2d 23
    (Utah 1933). Welling addressed whether the power to “hear
    and determine” factual matters, and to apply the law thereto, is an
    exclusively judicial function. 
    Id. at 26.
    At issue was a statute
    authorizing the Secretary of State to revoke the charter of a social
    club if the club permitted gambling. 
    Id. at 23.
    The Citizens’ Club
    challenged the statute, arguing that it impermissibly delegated
    judicial power to the Secretary. 
    Id. ¶61 Rejecting
    that challenge, we reasoned that while “[t]he term
    ‘judicial power of courts’ is generally understood to be the power to
    hear and determine controversies between adverse parties and
    questions in litigation,” 
    id. at 26,
    the broader power to “hear and
    determine” evidence, facts and legal questions is not “exclusively” or
    “necessarily” judicial, 
    id. at 25;
    see also 
    id. at 26
    (characterizing this
    view as “sustained by the weight of judicial authority”). In so
    holding, we did not consider our general understanding of judicial
    power as a limitation on judicial authority, but addressed whether
    judicial decision-making authority, described more broadly, may
    also be exercised by other branches of government. See 
    id. at 26
    ; 
    id. at 24
    (noting the parties’ agreement that “the term ‘judicial power’ as
    employed in the Constitution is not capable of precise definition”);
    
    id. at 26
    (“Merely to say that judicial power is ‘a power to hear and
    determine’ is not decisive . . . . [A]dministrative and executive
    officers often are required to hear and determine many facts upon
    which their action is based but which is not judicial in the sense that
    it belongs exclusively to the courts.” (emphasis added)). The question
    of whether judicial power might be exercised in a nonadversarial
    proceeding was not before us. Our statement regarding our general
    understanding of judicial power was not commentary or even dicta
    directed to that issue, much less a statement definitively resolving
    the question.
    ¶62 We have quoted Welling’s language a number of times since,
    usually in separation of powers contexts. See, e.g., Judd v. Drezga,
    
    2004 UT 91
    , ¶ 37, 
    103 P.3d 135
    ; Salt Lake City v. Ohms, 
    881 P.2d 844
    ,
    849 (Utah 1994); Timpanogos Planning & Water Mgmt. Agency v. Cent.
    Utah Water Conservancy Dist., 
    690 P.2d 562
    , 569 (Utah 1984). But we
    have never employed that language as defining the scope of our
    judicial power as it relates to nonadversarial proceedings. This court
    has not previously examined whether the Utah Constitution requires
    27
    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    adversity between parties before we can properly exercise
    jurisdiction. Indeed, the separation of powers issues raised in Judd,
    Ohms, and Timpanogos Planning & Water had nothing to do with
    whether adversariness is a jurisdictional requirement. And because
    there were adverse parties in those cases, there was no need for us to
    determine whether adversity was a constitutional requisite. Thus, by
    adopting the premise that the Utah Constitution generally requires
    adverse parties before a court may exercise jurisdiction, and viewing
    our courts’ historical jurisdiction over non-adverse adoption cases as
    an exception to that general rule, the majority’s analysis may distort
    the way we view our judicial power in future cases.
    ¶63 While Utah courts most often resolve disputes between
    adverse parties, Utah courts have also historically presided over
    nonadversarial proceedings. Indeed, at the time of statehood, the
    courts oversaw many proceedings that had the potential to lack
    adverse parties, including adoptions, name changes, probate, and
    guardianship matters. See supra ¶ 14 (concluding that “before the
    Utah Constitution was adopted, courts apparently had power to
    preside over non-adversarial adoption proceedings” (citing 1884
    Utah Laws 52–53)); supra ¶ 15 (concluding that “shortly after the
    Utah Constitution was adopted, the Utah legislature codified a new
    adoption statute establishing a non-adversarial statutory scheme for
    adoption cases” (citing UTAH REV. STAT. § 6 (1898))); see also, e.g., II
    UTAH COMP. LAWS § 4016 (1888) (“If no person, within one year after
    the probate of a will, contested the same or the validity thereof, the
    probate of the will is conclusive, saving to infants and persons of
    unsound mind, a like period of one year after their respective
    disabilities are removed.”); 
    id. § 4305
    (“The probate court of each
    county . . . may appoint guardians . . . of minors . . . . Such
    appointment may be made on the petition of a relative or other
    person on behalf of the minor, or on the petition of the minor, if
    fourteen years of age.”); UTAH REV. STAT. § 1546 (1898) (providing
    that after a petitioner seeking a name change fulfills the statutory
    requirements, “the district court may order the change of name as
    requested, upon proof in open court . . . that there exists proper
    cause for granting the same, and that . . . notice of the hearing thereof
    has been given”).
    ¶64 And we continue to exercise jurisdiction in these types of
    proceedings. Thus, our dockets reflect several examples of matters
    that routinely lack adverse parties. Yet this court has, as noted above,
    occasionally spoken in absolute terms when remarking on the
    adversariness usually present in judicial proceedings. See, e.g., Univ.
    of Utah v. Indus. Comm’n of Utah, 
    64 Utah 273
    , 
    229 P. 1103
    , 1104 (1924)
    28
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                              Pearce, J., concurring
    (“Even courts of general jurisdiction have no power to decide
    abstract questions or to render declaratory judgments, in the absence
    of an actual controversy directly involving rights.”). But those
    statements do not reflect the reality of judicial practice either
    currently or at the time of statehood.
    ¶65 The question, then, is whether we should equate our court’s
    language regarding a “general understanding” of our judicial power
    with a “longstanding limitation” on its exercise, see infra ¶ 126 (Lee,
    A.C.J., concurring), absent a prior holding that such a limit exists.
    Without further inquiry, I am not prepared to do so. When reciting
    general principles, we may fail to acknowledge the full scope of our
    judicial power or the nuances that attend its application. I am
    concerned that, here, the majority may be converting that failure into
    a jurisdictional bar. Broad language, inconsistent with current or
    historical practice, should not be read so literally.
    ¶66 I am, of course, familiar with federal case law suggesting the
    need for adversity as a hallmark of the federal constitution’s “case
    and controversy” clause. See, e.g., Deposit Guar. Nat. Bank, Jackson v.
    Roper, 
    445 U.S. 326
    , 348 (1980) (“Art. III asks but a single question: Is
    there a continuing controversy between adverse parties who retain
    the requisite stake in the outcome of the action?”); Richardson v.
    Ramirez, 
    418 U.S. 24
    , 36 (1974) (explaining that federal courts “are
    limited by the case-or-controversy requirement of Art. III to
    adjudication of actual disputes between adverse parties”). But the
    United States Supreme Court has clarified that “prudential
    considerations,” rather than constitutional language, underlie the
    Court’s “insist[ence] upon ‘that concrete adverseness which sharpens
    the presentation of issues upon which the court so largely depends
    for illumination of difficult constitutional questions.’” 
    Windsor, 570 U.S. at 760
    (emphasis added) (quoting Baker v. Carr, 
    369 U.S. 186
    , 204
    (1962)). Moreover, even if federal constitutional law were to impose
    a strict adversariness standard, see 
    Windsor, 369 U.S. at 785
    (Scalia, J.,
    dissenting), our understanding of federal law should not unduly
    color our analysis in this instance—both because the constitutional
    language and principles are different and because any federal
    adversariness requirement may be inconsistent with historical
    federal practice.
    ¶67 “Unlike the federal system, the judicial power of the state of
    Utah is not constitutionally restricted by the language of Article III of
    the United States Constitution requiring ‘cases’ and ‘controversies,’
    since no similar requirement exists in the Utah Constitution.” Jenkins
    v. Swan, 
    675 P.2d 1145
    , 1149 (Utah 1983). Thus, like “[n]umerous
    29
    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    other states,” we are “mindful that [our] constitution[] do[es] not
    impose the same restrictions on [our] judicial power that the federal
    constitution imposes on federal courts.” Gregory, 
    2013 UT 18
    , ¶ 16.
    Accordingly, before determining that an element of federal
    justiciability applies as a matter of Utah constitutional law, we
    examine whether there is “support in either the text of the [Utah]
    Constitution or in [Utah] jurisprudence” for recognizing the
    standard “as a constitutional requirement” or “adopting the federal
    . . . doctrine.” See 
    id. ¶ 17
    (citation omitted); see also, e.g., State v.
    Tulley, 
    2018 UT 35
    , ¶ 80, 428 P.3d. 1005 (“When asking this court to
    interpret constitutional language, a party should analyze the plain
    meaning of the constitutional text, our prior case law, the
    interpretation other courts have given to similarly worded
    provisions in their state constitutions, and what lessons might be
    gleaned from the historical context.” (citation omitted) (internal
    quotation marks omitted)). With respect to adversity between
    parties, we have not yet undertaken this analysis.
    ¶68 While federal law often proves a helpful resource when
    interpreting the Utah Constitution, federal law regarding
    adversariness may prove of limited utility. Historically, federal
    courts presided over a number of proceedings that did not require
    adverse parties. See James E. Pfander, Standing, Litigable Interests, and
    Article III’s Case-or-Controversy Requirement, 65 UCLA L. REV. 170, 175
    (2018) (noting that, in our nation’s early years, Congress assigned a
    number of noncontentious matters to the federal courts). For
    example, in the eighteenth and nineteenth centuries, federal courts
    oversaw prize and salvage petitions to establish title to intercepted
    merchant ships and naval vessels of opposing nations, which often
    proceeded uncontested, without the appearance of an adverse party.
    James E. Pfander & Daniel D. Birk, Article III Judicial Power, the
    Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 YALE
    L. J. 1346, 1368–69 (2015). In addition, early naturalization
    proceedings did not require a party to name an opposing party. See
    An Act to Establish an Uniform Rule of Naturalization, 1 STAT. 414,
    414–15 (1795). The Supreme Court nevertheless upheld federal court
    jurisdiction over those proceedings, noting that “[t]he function of
    admitting to citizenship has been conferred exclusively upon courts
    continuously since the foundation of our government.” Tutun v.
    United States, 
    270 U.S. 568
    , 576 (1926).
    ¶69 In his separate opinion, Justice Lee suggests a different
    historical narrative, asserting that early American jurisprudence and
    Utah legal proceedings reflected a “general requirement of
    adversariness” that is “rooted deeply in our law,” infra ¶¶ 106–12,
    30
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                             Pearce, J., concurring
    upon which “our entire branch of government is built,” infra ¶ 136.
    He thus posits that “the traditional understanding of the judicial
    power . . . carries a requirement of adversariness even without an
    express ‘case and controversy’ clause.” Infra ¶ 133. But I am not
    presently convinced that the “traditional understanding” of the
    judicial power is completely iron-clad when it comes to
    adversariness. The historical evidence, even if conflicting,
    demonstrates that the origin of the adverse party requirement is
    worthy of additional briefing and analysis if it is to be used to inform
    our understanding of our state constitution.80
    ¶70 Accordingly, I question whether the adversity that so often
    exists in judicial proceedings is constitutionally required. Justice Lee
    suggests it is and attempts to explain away Utah courts’ involvement
    in numerous nonadversarial proceedings as exceptions to the
    general rule. But I am not persuaded that Justice Lee offers a
    definitive answer. Even if Justice Lee is correct that some
    proceedings can be explained as actions that resemble in rem
    proceedings and are “inherently” or “functionally” adversarial, infra
    ¶¶ 125, 130, that explanation fails to account for the broader range of
    nonadversarial proceedings over which Utah courts have historically
    presided. And as Justice Lee acknowledges, defining a fully
    explanatory exception to an adversariness rule may prove a difficult
    task. See infra ¶ 126 (“The name change example cited by Justice
    Pearce may be harder to reconcile. And I suspect there may be other
    examples of single-party actions that have been filed in our courts.”
    (citation omitted)).
    ¶71 Although we are not required to resolve this issue to decide
    this case, the time may come when we will need to wrestle with the
    question. My aim in writing separately is to highlight that the cases
    80  Although I question whether adversity is constitutionally
    required, I don’t doubt the substantial benefits of an adverse party
    requirement. As Justice Kennedy explained in Windsor, adversity
    “sharpens the presentation of issues upon which the court so largely
    depends for illumination.” 
    Windsor, 570 U.S. at 760
    (citation
    omitted); see also State v. Houston, 
    2015 UT 40
    , ¶ 65 & n.135, 
    353 P.3d 55
    (plurality opinion) (compiling cases noting the court’s reluctance
    to resolve matters without the benefit of adversarial briefing). Thus,
    even if we were eventually to conclude that adversity is not
    constitutionally required, adversity would nonetheless remain the
    general rule as a prudential matter.
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    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    the majority cites have not done the heavy lifting needed to decide
    whether the Utah Constitution premises our jurisdiction on the
    presence of adverse parties. When that question is squarely
    presented, this court will need to do much more than recite the
    general statements regarding this court’s authority on which the
    majority relies.
    ¶72 My second concern centers on the majority’s statement that
    “we are constitutionally limited to wield only judicial power.” Supra
    ¶ 12 (citation omitted) (internal quotation marks omitted). Because
    the majority ultimately concludes that a court exercises judicial
    power when it reviews and approves a gestational agreement under
    the statutory framework at issue here, we have no need to confront
    this separation of powers principle in this case. I raise the issue,
    however, because the Utah Constitution81 and our precedent
    suggests that the legislative, executive, and judicial branches of
    government may be tasked with responsibilities not plainly within
    their respective spheres, so long as those responsibilities do not
    unconstitutionally infringe on another branch’s duties.
    ¶73 I am not writing to express a view on how the constitutional
    language should be interpreted. Rather, I seek to flag the issue for a
    case in which it is presented and to advocate for consistency in our
    interpretation and application of Utah constitutional law.
    ¶74 The majority first analyzes whether our compliance with the
    gestational agreement statute involves the exercise of judicial power.
    In doing so, the majority advises that it “normally would dismiss
    this case” because courts are “generally” without jurisdiction absent
    a “justiciable controversy between adverse parties,” and “no dispute
    between opposing parties is present here.” Supra ¶ 12 (citation
    omitted) (internal quotation marks omitted). Thus, despite explicit
    legislative direction that “a tribunal may issue an order validating [a]
    gestational agreement and declaring that the intended parents will
    81   Article V, section 1 of the Utah Constitution provides,
    The powers of the government of the State of Utah
    shall be divided into three distinct departments, the
    Legislative, the Executive, and the Judicial; and no
    person charged with the exercise of powers properly
    belonging to one of these departments, shall exercise
    any functions appertaining to either of the others,
    except in the cases herein expressly directed or
    permitted.
    32
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                             Pearce, J., concurring
    be the parents of a child born during the term of the agreement,”
    UTAH CODE § 78B-15-803, the majority opines that it would
    ordinarily decline to do so.
    ¶75 The majority’s approach thus raises the question of whether,
    assuming adversity between parties is generally required to exercise
    judicial power, the Legislature may authorize or assign to the
    judicial branch functions not traditionally understood to be
    encompassed in that power. And it requires us to consider what test
    we should apply to evaluate the constitutionality of the Legislature’s
    directive. The majority signals that the answer is simple—the
    judiciary cannot exercise anything other than judicial power,
    rendering any other analysis unnecessary.82
    ¶76 But we have previously recognized that the three branches
    of government, acting through their respective officers, may be
    tasked with or perform duties that fall outside their “core”
    responsibilities, so long as those tasks do not invade the “exclusive”
    province of another branch of government. See In re Young, 
    1999 UT 6
    , ¶¶ 14, 26, 
    976 P.2d 581
    . Moreover, we have recognized that some
    tasks or powers might properly be exercised by more than one
    branch, and in some circumstances, the Legislature may direct the
    assignment of those tasks. See, e.g., Taylor v. Lee, 
    226 P.2d 531
    , 536–38
    (Utah 1951) (concluding that “the Legislature could grant to the
    Governor the right to remove for cause,” even “[a]ccepting the
    proposition that removal from office is a judicial function”); 
    Welling, 27 P.2d at 25
    , 26 (noting agreement with the principle that “while the
    courts have undoubted power to revoke and annul charters granted
    to corporations on grounds, among others, of an illegal or wrongful
    exercise or use of such charters, yet it also is competent for the
    82 This presents a different question than we sometimes confront
    when assessing the limits of our judicial power. This is not a case in
    which we are ensuring that we are not seizing authority for our
    branch. Rather, we are examining whether the Utah Constitution
    forbids courts from performing a task that the people of Utah,
    through their elective representatives, have asked us to undertake. If
    nothing else, the presumption of constitutionality we afford
    legislation should cause us to make sure that we have our history
    correct before we tell the Legislature that it is coloring outside the
    constitutional lines.
    33
    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    Legislature to provide for a legislative or administrative forfeiture of
    the charter as well as for a judicial one”).
    ¶77 Accordingly, when we have reviewed the actions of other
    branches of government, we have not stated that the Legislature may
    exercise only legislative power, or that the executive branch may
    exercise only executive power, but have applied a three-part test
    asking,
    First, [is the state actor] “charged with the exercise
    of powers properly belonging to” one of the three
    branches of government? Second, is the function that
    the statute has given . . . one “appertaining to” another
    branch of government? The third and final step in the
    analysis asks: if the answer to both of the above
    questions is “yes,” does the constitution “expressly”
    direct or permit exercise of the otherwise forbidden
    function?
    In re Young, 
    1999 UT 6
    , ¶ 8.
    ¶78 We have alluded to this type of analysis when applying
    separation of powers principles to the judiciary. See, e.g., Gregory,
    
    2013 UT 18
    , ¶ 12 n.4 (“In entertaining a claim that the Legislature has
    violated the constitutional restraints on its lawmaking procedures,
    [the court] [is] not ‘exercis[ing] a function’ of either of the other
    branches of government.” (third alteration in original)). This is a
    much different exercise than the one the majority suggests we would
    perform. And the existence of competing constitutional inquiries
    could yield anomalous results.
    ¶79 Suppose the Legislature created a commission comprised of
    members of the executive, legislative, and judicial branches, to be
    appointed by their respective departments. If the commission were
    challenged on the basis that the power to appoint is an exclusively
    executive function, we might assess the commission’s
    constitutionality under the In re Young test. We would ask whether,
    in making an appointment, the judicial and legislative branches were
    fulfilling a function appertaining to another branch, and, if so,
    whether the Utah Constitution expressly allows the exercise of that
    function.83 However, under the approach the majority signals here,
    83The approach the majority employs would ask whether the
    appointment involved the exercise of judicial power. And Justice Lee
    would conclude that this is not a question governed by In re Young
    (Continued)
    34
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                            Pearce, J., concurring
    we would assess the question differently,84 at least as to the
    judiciary, asking only whether the power to make appointments falls
    within the judicial power.
    ¶80 Moreover, as noted above, our separation of powers
    jurisprudence does not necessarily support a bright-line test
    regarding the scope of judicial, legislative, and executive power. We
    have repeatedly observed that the lines that separate the powers
    between the branches of government can be, at times, blurry. See,
    e.g., In re Young, 
    1999 UT 6
    , ¶ 14 (“[T]here must be powers and
    functions which may, in appearance, have characteristics of an
    inherent function of one branch but which may be permissibly
    exercised by another branch.”); 
    Taylor, 226 P.2d at 536
    (“This court,
    in a number of cases, has discussed the term ‘judicial power’ as
    employed in the Constitution and has dealt with some necessary
    overlapping of the powers of the three departments.”); Thatcher v.
    or even by our constitution’s separation of powers clause, but one
    resolved by asking “whether the judicial branch of government itself
    has the power to appoint.” Infra ¶ 147. And that question can be
    answered by looking at “longstanding practice and a historical
    understanding of the terms of Article VIII.” Infra ¶ 147. Justice Lee
    cites two United States Supreme Court cases in support. Infra ¶ 147
    n.109. One of those cases concludes, with little constitutional
    analysis, that Congress could permissibly delegate to the judiciary
    the ability to appoint election supervisors. Ex parte Siebold, 
    100 U.S. 371
    , 397–98 (1879). The other addresses a federal statutory question
    regarding power of removal and, along the way, characterizes a
    federal court’s appointment of a clerk of court as “a purely
    ministerial function.” In re Hennen, 
    38 U.S. 230
    , 232–33, 236, 239
    (1839). None of this is tethered to the question of what the people of
    Utah would have understood article V to mean. And it serves to
    highlight that we have yet to conduct any serious originalist inquiry
    into the meaning of article V of our constitution.
    84 Justice Lee also responds to the hypothetical by noting that
    “[t]he head of a branch of government like this one has long
    exercised the power to administer and coordinate the work of that
    branch.” Infra ¶ 147. But that line of argument would not help us
    answer the hypothetical, in which the judiciary is asked to appoint
    delegates to a body whose purpose reflects the interests of all three
    branches of government, and thus is not limited to administering
    and coordinating the judicial branch’s work.
    35
    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    Indus. Comm’n, 
    115 Utah 568
    , 
    207 P.2d 178
    , 181 (1949) (reasoning that
    it would be “fruitless and unwise” to attempt to definitively
    determine which powers properly belong to or appertain to each
    branch), superseded by constitutional amendment on other grounds as
    recognized in Injured Workers Ass’n of Utah v. State, 
    2016 UT 21
    , 374
    P.3d. 14; 
    Welling, 27 P.2d at 24
    (noting the parties’ agreement “that
    the term ‘judicial power’ as employed in the Constitution is not
    capable of precise definition”).85
    ¶81 Justice Lee argues that the potential inconsistencies I have
    highlighted with respect to our separation of powers jurisprudence
    can be reconciled by reading our constitution and case law as
    “draw[ing] a distinction between persons and branches.” Infra ¶ 149.
    Justice Lee would read article V’s prohibition—that “no person
    charged with the exercise of powers properly belonging to one of
    these departments, shall exercise any functions appertaining to
    either of the others, except in the cases herein expressly directed or
    permitted,” UTAH CONST. art. V, § 1—as applying exclusively to
    persons. Infra ¶¶ 142, 144. And we have, in the course of addressing
    questions concerning the place of administrative agencies in our
    constitutional framework, appeared to draw a similar line. See, e.g.,
    Robinson v. State, 
    2001 UT 21
    , ¶ 12, 
    20 P.3d 396
    . But this is a matter
    that we have never fully explored. And we do not appear to have
    considered the question with reference to what the language of
    article V, section 1 would have meant to the people of Utah at the
    time of statehood.
    ¶82 Justice Lee suggests that, at the time of the constitution’s
    ratification, the people of Utah may have been concerned that a
    person employed by one branch of government might, in a personal
    85 Justice Lee suggests that application of the In re Young test to
    the judiciary would “introduc[e] a circular loop of uncertainty into
    our assessment of the scope of the power of our three branches of
    government.” Infra ¶ 152. I fail to see the circularity in applying the
    In re Young test, not to determine the scope of constitutionally
    conferred judicial power, as Justice Lee suggests, see infra ¶¶ 152–53,
    but to assess the constitutionality of any assignment to the judiciary
    of tasks that may fall outside traditional notions of judicial power.
    That inquiry will be informed by an understanding of the executive,
    legislative, and judicial branches’ respective powers, as Justice Lee
    recognizes, see infra ¶ 118, but that does not render it inherently
    circular.
    36
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                             Pearce, J., concurring
    capacity, undertake functions appertaining to another. Infra ¶¶ 144
    & n.107, 150. Before we start definitively interpreting this language, I
    want to leave open the possibility that the people of Utah had a
    broader concern—that to preserve the distinctions between our
    various departments of government, those departments were
    prohibited from exercising one another’s powers. And the language
    of article V thus bars the departments’ employees from doing so,
    whether acting in their official or unofficial capacities. Rather than
    attempting to rewrite the constitution’s language as Justice Lee
    charges, infra ¶ 151, I am raising the possibility that we have never
    carefully explored or ascertained this language’s original meaning.
    ¶83 Moreover, it is not apparent how this distinction would
    make much practical difference. Branches of government act only
    through the individuals they employ. And while Justice Lee would
    read article V and In re Young as applying solely to the exercise of
    governmental authority by persons, another reading exists that
    draws no substantive distinction between the roles individuals may
    fulfill and the authority their respective departments may exercise.
    As Justice Lee acknowledges, infra ¶ 149, In re Young states that
    unless a power or function “is essential, core, or inherent in the very
    concept of one of the three branches of a constitutional
    government[,] . . . the function is not one barred to other branches, or
    to members of those branches,” 
    1999 UT 6
    , ¶ 26 (emphasis added).
    ¶84 And the analysis we employed in In re Young is littered with
    references to the functions or powers of the respective “branches” of
    government. See, e.g., 
    id. ¶ 11
    (“As noted, the critical constitutional
    language is ‘powers properly belonging to’ one branch and
    ‘functions appertaining to’ either of the other two.”); 
    id. ¶ 13
    (“It is
    just this sort of judgment about what is so inherent in a branch that it
    cannot be exercised by another and what is not so inherent to one
    that it can be exercised by several that our cases have striven to
    determine over the years.”); 
    id. ¶ 14
    (“A necessary corollary to the
    doctrine that some powers or functions belong exclusively to the
    members of one branch is that there must be powers and functions
    which may, in appearance, have characteristics of an inherent
    function of one branch but which may be permissibly exercised by
    another branch.”); 
    id. (“We conclude
    that when the power exercised
    or the function performed is one that . . . is not exclusive to a branch,
    it is not ‘appertaining to’ that branch and does not fall within the
    reach of the second clause of article V, section 1.”).
    ¶85 Justice Lee advances two additional criticisms. First, he hints
    that if we read article V to permit a branch of government to perform
    37
    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    a task not within its traditional power, when that action does not
    encroach upon a power appertaining to another branch, the
    Legislature and Governor could ignore the express constitutional
    prohibitions on their constitutional power.86 Infra ¶¶ 154–55.
    Nothing in the analysis I am describing suggests this conclusion. I do
    not read either article V or In re Young to permit either departments
    of government or the people they employ to disregard the express
    constitutional constraints on their power.
    ¶86 Justice Lee’s argument equates the Utah Constitution’s
    express limitations on the Legislature and Governor with the
    constraints on the “judicial power” that he opines are implied in the
    constitution. Infra ¶ 156. But, unlike the express limitations on
    executive and legislative power Justice Lee highlights, the framers of
    the Utah Constitution did not include the limitations Justice Lee
    advances—“justiciability, standing, and a general requirement of
    adversariness,” infra ¶ 156—in article VIII of our constitution. Nor
    did the framers use the federal constitution’s case or controversy
    language. And rather than parrot language about the meaning of our
    constitution purloined from cases unsupported by serious originalist
    inquiry, we should carefully examine the power the people of Utah
    anticipated the judicial branch would exercise.
    ¶87 Justice Lee also criticizes my exploration of article V and In
    re Young because it could lead to the conclusion that there is no
    constitutional prohibition on this court issuing an advisory opinion.
    Infra ¶ 161. Of course, the Utah Constitution contains no express
    prohibition on advisory opinions. The proposition that Utah courts
    are not authorized to issue advisory opinions can be found in
    University of Utah v. Industrial Commission of Utah, 
    64 Utah 273
    , 
    229 P. 1103
    (1924). There we said that “[e]ven courts of general
    jurisdiction have no power to decide abstract questions or to render
    declaratory judgments, in the absence of an actual controversy
    directly involving rights.” 
    Id. at 1104
    (emphasis added). But we
    conducted no originalist inquiry to reach that conclusion and simply
    86 For example, Justice Lee suggests that this reading of article V
    would permit the Legislature to ignore the constitutional
    requirement that the legislative session begin on the fourth Monday
    in January because to do so would not involve the exercise of judicial
    or executive power. Infra ¶ 154. That is not a separation of powers
    concern. That would involve the Legislature acting contrary to a
    restraint the people of Utah placed upon its authority.
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                             Pearce, J., concurring
    relied on a three paragraph United States Supreme Court opinion.
    See 
    id. (citing California
    v. San Pablo & T.R. Co., 
    149 U.S. 308
    , 314
    (1893)). And although we have made similar statements about
    advisory opinions from time to time, see, e.g., State v. Stromquist, 
    639 P.2d 171
    , 172 (Utah 1981) (per curiam) (“This Court was not intended
    to be, nor is it endowed with authority to render advisory opinions,
    and has said so many times.”), we did not undertake any originalist
    analysis until 2012.
    ¶88 In Utah Transit Authority v. Local 382 of the Amalgamated
    Transit Union, we concluded that “whatever else the judicial power
    clause may imply, it incorporates a prohibition on the issuance of
    advisory opinions by our courts.” 
    2012 UT 75
    , ¶ 23, 
    289 P.3d 582
    . But
    the analytical path we took to reach that conclusion suggests there is
    room for additional originalist examination. We recognized that the
    text “‘[t]he judicial power of the state‘ is ‘vested in a Supreme Court,
    in a trial court of general jurisdiction known as the district court, and
    in such other courts as the Legislature by statute may establish,’” 
    id. ¶ 20
    (alteration in original) (quoting UTAH CONST. art. VIII, § 1),
    “does little to reveal the precise scope of the judicial power,” 
    id. ¶89 So
    we turned to “a page of state history” to shed
    “substantial light on what that power did—and did not—mean to the
    framers of our Utah Constitution.” 
    Id. ¶ 21.
    We noted that at the
    Constitutional Convention of 1895, delegate Thomas Maloney
    proposed an amendment to the constitution: “The justices of the
    supreme court shall be obliged to give their opinion upon important
    questions of law and upon solemn occasions when required by the
    governor, senate or house of representatives.” 
    Id. ¶ 21
    n.5 (internal
    quotation marks omitted). The entire discussion of the amendment
    consists of five short paragraphs and sheds little, let alone
    substantial, light on the question of what the framers thought of the
    scope of the judicial power. 
    Id. ¶90 Delegate
    F.S. Richards asked if other states had adopted the
    provision. 
    Id. Maloney responded
    that “Massachusetts, Maine,
    Colorado, and a number of others” had. 
    Id. (internal quotation
    marks
    omitted). Delegate D.C. Eichnor opined that he did not like the
    amendment because if a judge “should give their opinion to the
    governor, senate, or lower house, or all combined,” and then “a case
    arises out of the matter,” “the man can win the case, no matter if they
    were in the wrong.” 
    Id. (internal quotation
    marks omitted). Maloney
    replied that the amendment did “not apply to any such instances as
    the gentleman speaks of.” 
    Id. (internal quotation
    marks omitted).
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    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    ¶91 Undeterred, Eichnor further spoke against the amendment,
    saying that even though he did “not know whether [the practice of
    permitting a state supreme court to provide advisory opinions had]
    fallen into disuse” in Massachusetts, he believed that it had. 
    Id. (internal quotation
    marks omitted). Eichnor also opined that he
    thought article 22 of section VIII went “about as far in this matter as
    it should go” and that it “cover[ed] the ground fully.” 
    Id. (internal quotation
    marks omitted).87
    ¶92 That was the entirety of the debate. See II OFFICIAL REPORT
    OF THE PROCEEDINGS AND DEBATES OF THE CONVENTION 1397 (1898).
    Following that, a vote was taken and, according to the report of the
    convention, “the proposed section was rejected.” Id.; see also Utah
    Transit Auth., 
    2012 UT 75
    , ¶ 21 n.5.88 The Utah Transit Authority court
    took that rejection, and the fact that a number of other states had
    rejected provisions concerning advisory opinions, to mean that “the
    Utah framers’ conscious rejection of this practice speaks volumes.”
    
    2012 UT 75
    , ¶ 23. That court decided that its review of the history
    “confirms that whatever else the judicial power clause may imply, it
    incorporates a prohibition on the issuance of advisory opinions by
    our courts.” 
    Id. ¶93 I
    am not so sure about that. It appears that there is work to
    be done before we can be so definitive about the meaning of our
    constitution.89 First, the clause the delegates to the Constitutional
    87 Section 22 of the original constitution provided that “District
    Judges may, at any time, report defects and omissions in the law to
    the Supreme Court, and the Supreme Court, on or before the first
    day of December of each year, shall report in writing to the
    Governor any seeming defect or omission in the law.” UTAH CONST.
    art. VIII, § 22 (1895), in II OFFICIAL REPORT OF THE PROCEEDINGS AND
    DEBATES OF THE CONVENTION 1868–69 (1898) [hereinafter Proceedings].
    In other words, the constitution directed the judiciary to offer an
    opinion as to how the Legislature might improve the law.
    88  In Utah Transit Authority, we report that the amendment was
    “roundly rejected by the body of the convention.” 
    2012 UT 75
    , ¶ 21.
    The official report does not detail the vote, see Proceedings at 1397, so
    it is unclear whether the vote was close or not.
    89 And something Justice Lee says in his concurring opinion
    drives this point home. Justice Lee opines that “[w]ithout digging
    through state archives, it’s difficult to know the content of the
    reports submitted in accordance with section 22.” Infra ¶ 169. He
    (Continued)
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                             Pearce, J., concurring
    Convention rejected did not generally authorize advisory opinions.
    It allowed the governor, the senate, and the house to require this
    court to answer questions about Utah law. That presents separation
    of powers concerns that stretch beyond the question of whether a
    court has the power to issue an advisory opinion. Second, nothing in
    the very brief discussion of the amendment sheds any light into
    what the framers thought of the scope of the judicial power. And
    third, the original constitution required this court to report to the
    governor how the Legislature could fix and improve the law.
    ¶94 This demonstrates that the framers envisioned that this
    court would have the ability to do more than decide cases between
    adverse parties and would, at least in one annual report, opine on
    what the law should be.90 Simply stated, it appears there is still room
    nevertheless suggests that “if they’re anything like the inter-branch
    reports we provide today, they lack some of the hallmark
    characteristics of advisory opinions.” Infra ¶ 169. That is the point of
    this concurrence. I would prefer to know what those reports say
    before I draw conclusions about what they might tell us about the
    framers’ views of the judicial power.
    90  Justice Lee refers to this an “expansive” reading of section 22,
    but he reads it the same way I do: that the courts were
    constitutionally empowered to “provide the Governor with a written
    report detailing ‘seeming defect[s] or omission[s] in the law.’” Infra
    ¶¶ 170, 171 (alterations in original). Where we part ways is that
    Justice Lee is prepared to say that this was “a limited exception to
    the general rule,” infra ¶ 170, whereas I would prefer to see more
    historical research before we definitively say what the people of
    Utah in 1895 would have understood to be within the power of the
    courts.
    Justice Lee also asks, “What, for instance, would stop the courts
    from engaging in legislative rulemaking” if section 22 were read
    “expansive[ly].” Infra ¶ 171. The answer is simple; article V of the
    Utah Constitution. Passing legislation is a function “appertaining to”
    to the legislative department, and we cannot legislate without
    express constitutional authorization. See UTAH CONST. art. V, § 1.
    Justice Lee posits that advisory opinions would nonetheless
    violate article V because they are “the functional equivalent” of
    legislation. Infra ¶ 171 n.118. That proposition is not self-evident and
    it is far from clear that “[a] nonbinding statement by a court of its
    interpretation of the law,” Advisory Opinion, BLACK’S LAW
    (Continued)
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    IN RE GESTATIONAL AGREEMENT
    Pearce, J., concurring
    for originalist research and analysis on the question of this court’s
    ability to issue advisory opinions.91 And working backward from the
    conclusion that a particular reading of the Utah Constitution must be
    wrong because it would not forbid an advisory opinion may prove a
    problematic path.
    ¶95 When this issue next arises, a party advocating Justice Lee’s
    position will need to address a number of concerns. A party will
    need to convince this court that article V presupposes two distinct
    inquiries. One that attaches if the Legislature delegates a power to
    the branch as a whole, and another that applies if the Legislature
    gives that power to a specific employee of that branch. For example,
    under Justice Lee’s approach, if the Legislature passed a statute
    requiring the judicial branch to oversee the planting of trees on
    Arbor Day, we would ask whether that oversight responsibility was
    fairly contained in the judicial power; and if it wasn’t, we would
    strike it down as unconstitutional. But if the statute gave that
    responsibility to the Chief Justice individually, we would run the
    question through the In re Young test and potentially reach a
    DICTIONARY (11th ed. 2019), could be considered the same genus as
    “[t]he process of making or enacting a positive law in written form,”
    Legislation, BLACK’S LAW DICTIONARY (11th ed. 2019).
    But the relevant inquiry should focus on what the people of Utah
    would have understood the judicial power to include and the
    limitations they contemplated they were placing on the judiciary. To
    return to the leitmotif, I do not believe that our prior cases have done
    that work, and we owe it to the people of Utah to undertake that
    inquiry before we close the door on the meaning of our constitution.
    91That having been said, much like adversariness, there are very
    good reasons why this court should refrain from issuing advisory
    opinions. But good policy may not translate into a constitutional
    prohibition.
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    different result.92 Stated differently, a party will need to convince
    this court that in addition to article V, the Utah Constitution contains
    a separation of powers clause that we imply from the division of
    powers between the branches.93 And that the framers of the Utah
    Constitution intended that to operate separately from the separation
    of powers clause that they actually included in the constitution.
    ¶96 A party advancing Justice Lee’s position will also need to
    confront the question of what to do with historical examples of the
    exercise of jurisdiction over actions that lacked adverse parties.
    Specifically, that party will need to address whether those would
    have been viewed as part of the judicial power or as acceptable
    92   Justice Lee posits that perhaps the Legislature could give the
    Chief Justice power to oversee tree planting if he or she were “acting
    . . . as a private person.” Infra ¶ 144 n.107. At best, this response
    simply assumes away the fact that would cause the constitutional
    problem. At worst, it creates a mechanism by which the Legislature
    can avoid a constitutional problem through sleight of hand. Faced
    with the prospect that asking the Chief Justice to oversee Arbor
    festivities would raise constitutional issues, the Legislature could
    simply appoint the Chief Justice in her personal capacity. Without
    serious evidence that this is the result the framers intended, I am
    hard-pressed to believe that they envisioned a regime that is so
    easily circumvented.
    93  Justice Lee asserts that this unwritten separation of powers
    clause “preserves the constitutional limits described in Articles VI,
    VII, and VIII.” Infra ¶ 141. I presume that Justice Lee sees those limits
    inherent in three phrases: (1) “The Legislative power of the State
    shall be vested in [the Legislature and the people of the State of
    Utah],” UTAH CONST. art. VI, § 1; (2) “The executive power of the
    state shall be vested in the Governor who shall see that the laws are
    faithfully executed,” 
    id. art. VII,
    § 5; and (3) “The judicial power of
    the state shall be vested in a Supreme Court, in a trial court of
    general jurisdiction known as the district court, and in such other
    courts as the Legislature by statute may establish,” 
    id. art. VIII,
    § 1.
    It bears noting two facts. First, nothing in articles VI, VII, and VIII
    expressly limits the power of each branch to the powers described in
    those articles. Second, the Utah Constitution contains an express
    separation of powers clause that defines the lines between the
    branches of government. See 
    id. art. V,
    § 1.
    43
    IN RE GESTATIONAL AGREEMENT
    Lee, A.C.J. concurring
    exceptions to the exercise of that power.94 These are questions that
    deserve exploration and examination before we conclude that we
    have definitively resolved them.
    ¶97 But again, we do not need to answer these questions to
    resolve this case. Nor do I express an opinion on the correct
    interpretation of article V, section 1. I write separately only to note
    that the analysis the majority foreshadows may be inconsistent with
    In re Young and how we have previously approached separation of
    powers questions under article V.
    ¶98 For these reasons, I concur in the majority opinion with
    these two exceptions.
    ASSOCIATE CHIEF JUSTICE LEE, concurring:
    ¶99 The majority opinion appropriately assesses an important
    threshold question of justiciability. It recites a longstanding
    prerequisite to the exercise of “judicial power” under the Utah
    Constitution, noting that such power is generally limited to the
    determination of “controversies between adverse parties.” Supra ¶ 12
    (quoting Carlton v. Brown, 
    2014 UT 6
    , ¶ 29, 
    323 P.3d 571
    ). And it
    states that the absence of a “dispute between opposing parties” in
    this case would normally lead to dismissal of the case “for lack of
    jurisdiction.” Supra ¶ 12. But it ultimately concludes that this case
    falls within an exception to the general rule because “Utah courts
    frequently presided over non-adversarial hearings involving the
    termination or creation of parental rights” both “shortly before and
    directly after the adoption of the Utah Constitution.” Supra ¶ 16.
    ¶100 I concur in the majority opinion without reservation. For
    reasons stated by the majority I agree that “the validation of
    gestational agreements falls within our courts’ power over the
    94 That party will also need to address a corollary inquiry. If there
    are historical examples of judges exercising powers not traditionally
    considered part of the judicial power—for example, the power to
    appoint—should we reexamine our understanding of what the
    judicial power encompasses. Or is it evidence that when our
    constitution was ratified, the people of Utah would have understood
    that judges may sometimes undertake tasks falling outside our
    traditional notions of judicial power, as long as they do not “exercise
    functions appertaining to” another branch of government.
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    creation and termination of parental rights.” Supra ¶ 17. I also agree
    with the majority’s treatment of the merits of the case, and concur in
    the opinion in full.
    ¶101 I write separately, however, to speak to the questions
    raised by Justice Pearce in his concurrence. I do so reluctantly, and
    with some admitted trepidation. As the majority notes, it is entirely
    “unnecessary” for us to reach these issues in deciding “the case
    before us.” Supra ¶ 18 n.24. If it were up to me, moreover, we would
    not be opining on the wide-ranging, important constitutional
    questions introduced into this case by Justice Pearce—as they are not
    squarely presented to us and have not been briefed by the parties.
    Justice Pearce has raised them, however, in anticipation of the effect
    our opinions here may have on “future cases.”95 See supra ¶ 56. And I
    write separately because I have a different take on the issues raised
    by Justice Pearce, and I think it important to provide my contrary
    perspective.
    ¶102 I recognize that my criticism of Justice Pearce’s foray into
    unnecessary, unbriefed issues could also be pointed back at me. I,
    too, am engaging in independent analysis of these issues. I do so,
    however, not because I find this foray appropriate, but because I
    think a one-sided view of these issues (Justice Pearce’s) is more
    95 This is no abstract possibility. While this case was pending,
    another one was heard in which there is an arguable lack of
    adversariness. See In re Gray & Rice, No. 20170046-CA (Utah argued
    Jan. 8, 2018) (appealing the denial of petitions for amendments to
    birth certificates to reflect a “sex change”). We stayed the disposition
    of that case pending our resolution of this one. Order to Stay the
    Appeal, In re Gray & Rice, No. 20170046-CA (Utah Nov. 29, 2018).
    And the analysis in our opinions in this case no doubt will inform
    the determination of whether In re Gray & Rice is properly before us.
    I do not see this case, however, as the right one in which to engage in
    an extensive discussion of the issues raised by Justice Pearce. I
    would prefer to await adversary briefing before delving into these
    questions. Because we lack such briefing here I would prefer to
    postpone our resolution of these issues for a case in which they are
    directly implicated—in In re Gray & Rice or in some other future case.
    Because Justice Pearce has offered his views on the matter, however,
    I write to express my contrary views in the interest of presenting a
    more complete picture in setting the stage for the “future case” that
    we are anticipating.
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    IN RE GESTATIONAL AGREEMENT
    Lee, A.C.J. concurring
    troubling than a more complete one (which includes my response).
    Ultimately, then, I would prefer that both of us stand down, and
    save our written analysis of these important issues for the “future
    case[]” that Justice Pearce seems to be considering—a case in which
    these questions are squarely presented, and in which we may be the
    beneficiaries of briefing. But because Justice Pearce has started the
    conversation, I (reluctantly) see the need to participate.
    ¶103 Justice Pearce offers two responses to the majority’s
    justiciability analysis. He first questions the notion that “the Utah
    Constitution requires adversity between parties” as a prerequisite to
    the exercise of judicial power. Supra ¶ 60. And he next challenges the
    majority’s assertion that “we are constitutionally limited to wield
    only judicial power.” Supra ¶ 72.
    ¶104 These are fair questions worthy of discussion. And Justice
    Pearce posits possible answers to them. But I see these issues
    differently. First, I submit that the general requirement of
    adversariness is in fact deeply rooted in our case law and in the
    history and tradition of our adversary system of justice. Second, I
    suggest that the majority’s approach to analyzing the powers of the
    judiciary is defensible on textual and historical grounds.
    I
    ¶105 I do not share Justice Pearce’s skepticism of the majority’s
    assertion that adversariness is a general prerequisite to the exercise
    of judicial power under the Utah Constitution. Below I lay out the
    long line of cases that reaffirm this principle. Then I respond to
    Justice Pearce’s concerns with the requirement stated in these cases.
    A
    ¶106 The notion of a general requirement of adversariness is
    rooted deeply in our law. By the time of the framing of the Utah
    Constitution, it had been long settled that “[i]n every court there
    must be at least three constituent parts[:] . . . the actor, or plaintiff,
    who complains of an injury done; the reus, or defendant, who is
    called upon to make satisfaction for it; and the judex, or judicial
    power.” 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
    ENGLAND 25 (photo. reprint, Univ. of Chi. Press 1979) (1768).96 This
    96 See also Caleb Nelson, Sovereign Immunity as a Doctrine of
    Personal Jurisdiction, 115 HARV. L. REV. 1559, 1568 & n.29 (2002) (“For
    centuries, Anglo-American lawyers have thought that the very
    existence of most kinds of judicial proceedings depends upon the
    (Continued)
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                             Lee, A.C.J. concurring
    principle has deep roots in the British common law. See 
    id. But it
    is
    also embedded in our American jurisprudence. By the time Utah
    became a state in the late 19th century the American courts had
    widely held that the judicial power was limited to the resolution of
    disputes—or at least to the entry of a judgment in a case involving a
    potential for a dispute between parties with adverse legal interests.97
    presence (actual or constructive) of adverse parties.”); The
    Honorable John Marshall, Speech Delivered in the House of
    Representatives of the United States, on the Resolutions of the Hon.
    Edward Livingston, Relative to Thomas Nash, Alias Jonathan
    Robbins (March 7, 1800), in 4 THE PAPERS OF JOHN MARSHALL 82, 96
    (Charles T. Cullen ed., 1984) (stating that a justiciable case requires
    that “[t]here must be parties to come to court, who can be reached by
    its process, and bound by its power; whose rights admit of ultimate
    decision by a tribunal to which they are bound to submit”); 
    id. at 95
    (“A case in law or equity . . . was a controversy between parties
    which had taken a shape for judicial decision.”).
    97  Muskrat v. United States, 
    219 U.S. 346
    , 361 (1911) (stating that
    judicial power “is the right to determine actual controversies arising
    between adverse litigants, duly instituted in courts of proper
    jurisdiction”); 
    id. at 357
    (indicating that a case requires “the existence
    of present or possible adverse parties whose contentions are
    submitted to the court for adjudication” (quoting In re Pac. Ry.
    Comm’n, 
    32 F. 241
    , 255 (C.C.N.D. Cal. 1887))); United States v. Duell,
    
    172 U.S. 576
    , 588 (1899) (concluding that the Court of Appeals of the
    District of Columbia could review the decision of the Commissioner
    of Patents; stating that “the proceeding in the [Court of Appeals] on
    an appeal in an interference controversy presents all the features of a
    civil case, a plaintiff, a defendant and a judge”); California v. San
    Pablo & Tulare R.R. Co., 
    149 U.S. 308
    , 314 (1893) (“The duty of this
    court, as of every judicial tribunal, is limited to determining rights of
    persons or of property which are actually controverted in the
    particular case before it.”); Marye v. Parsons, 
    114 U.S. 325
    , 330 (1885)
    (“[N]o court sits to determine questions of law in thesi. There must be
    a litigation upon actual transactions between real parties, growing
    out of a controversy affecting legal or equitable rights as to person or
    property.”); United States v. Ferreira, 54 U.S. (13 How.) 40, 46 (1851)
    (indicating that certain determinations of treaty claims were not
    cases because, among other things, the United States was not
    authorized to appear as a party to oppose the claim).
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    Lee, A.C.J. concurring
    ¶107 It is therefore unsurprising that our Utah cases likewise
    embraced this principle. This court adverted to the requirement of
    adversariness at least as far back as University of Utah v. Industrial
    Commission of Utah, 
    229 P. 1103
    (Utah 1924). There we stated that
    “courts of general jurisdiction have no power to decide abstract
    questions or to render declaratory judgments, in the absence of an
    actual controversy directly involving rights.” 
    Id. at 1104
    (emphasis
    added). And we dismissed for lack of jurisdiction in the absence of
    “an actual case” or any “real controversy.” 
    Id. In so
    doing we quoted
    at length from California v. San Pablo & Tulare R.R. Co., 
    149 U.S. 308
    (1893), as follows:
    The duty of this court, as of every judicial tribunal,
    is limited to determining rights of persons or of
    property which are actually controverted in the particular
    case before it. When, in determining such rights, it
    becomes necessary to give an opinion upon a question
    of law, that opinion may have weight as a precedent
    for future decisions. But the court is not empowered to
    decide moot questions or abstract propositions, or to
    declare, for the government of future cases, principles
    or rules of law which cannot affect the result as to the
    thing in issue in the case before it.
    Univ. of 
    Utah, 229 P. at 1104
    (emphasis added) (quoting San Pablo &
    Tulare 
    R.R., 149 U.S. at 314
    ).
    ¶108 We expanded on this premise in Citizens’ Club v. Welling,
    
    27 P.2d 23
    (Utah 1933). There we said that “the term ‘judicial power’
    as employed in the Constitution . . . is largely determined by the
    nature or character of the function or power conferred and
    exercised” by the courts over time. 
    Id. at 24.
    And we defined such
    power by reference to the “suits and actions” “between parties” that
    were historically decided by our courts. 
    Id. at 24–25.
        ¶109 The Welling case raised the question of the
    constitutionality of a statute authorizing the Secretary of State (then
    an officer of the executive branch) to revoke the charter of a social
    club that allowed gambling. 
    Id. at 23.
    A social club whose charter
    was revoked challenged the statute on the ground that it delegated
    to the executive a quintessentially judicial power. It asserted that the
    application of state laws prohibiting gambling required the
    government “to construe the law, ascertain facts, and make
    decisions” about a particular party. 
    Id. at 25.
    And it insisted that this
    was the exercise of judicial power, which could not be delegated to
    the executive branch.
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    ¶110 We rejected that argument. And in so doing we applied a
    simple framework for assessing the powers of the branches of the
    Utah government—in Welling, the executive and the judiciary. First
    we noted that “executive officers often are required to hear and
    determine many facts upon which their action is based but which is
    not judicial in the sense that it belongs exclusively to the courts.” 
    Id. at 26.
    Executive “officers,” we explained, “frequently are required to
    construe the law, ascertain facts, and make decisions” that affect the
    rights of persons or entities. 
    Id. at 25.
    They do so, however, in
    executing the law against a single party—in applying the law to the
    facts of a given person, and deciding whether to impose a sanction
    (or grant a right or permit) against that person.
    ¶111 Judicial power is different. Welling established the core
    basis for the difference: “The term ‘judicial power of courts’ is
    generally understood to be the power to hear and determine
    controversies between adverse parties and questions in litigation.”
    
    Id. at 26.
    And the scope of the judicial power is defined by reference
    to the sorts of “suits and actions” heard “between parties” over time.
    
    Id. at 24–25.
       ¶112 Our Welling decision was based on that square holding.
    The Secretary of State could properly be tasked with sanctioning
    non-compliant social clubs because the imposition of a sanction
    (while involving fact-finding and legal analysis) involved executive
    power—the imposition of a sanction on a person or entity. And the
    Secretary of State’s exercise of that power did not tread into the
    domain of the judiciary because it did not involve the adjudication of
    a dispute “between adverse parties . . . in litigation.” 
    Id. at 26.
        ¶113 This framework has been repeatedly reinforced in our case
    law. As Justice Pearce concedes, we have “quoted” and reaffirmed
    the Welling standard “a number of times since” it was announced.
    Infra ¶ 137 (citing Judd v. Drezga, 
    2004 UT 91
    , ¶ 37, 
    103 P.3d 135
    ; Salt
    Lake City v. Ohms, 
    881 P.2d 844
    , 849 (Utah 1994); Timpanogos Planning
    & Water Mgmt. Agency v. Cent. Utah Water Conservancy Dist., 
    690 P.2d 562
    , 569 (Utah 1984)).98 And this string of cites is hardly exhaustive.
    98 Justice Pearce questions the weight of this authority on the
    ground that there were adverse parties in Welling, Judd, Ohms, and
    Timpanogos Planning & Water. Supra ¶ 62. But this response ignores
    two indisputable facts. First is the historical fact that at the time of
    the framing of the Utah Constitution “the American courts had
    widely held that the judicial power was limited to . . . the entry of a
    (Continued)
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    This court repeatedly has reinforced the proposition that the essence
    of the judicial power is the resolution of disputes. See, e.g., State v.
    Guard, 
    2015 UT 96
    , ¶ 59, 
    371 P.3d 1
    (“When exercising our judicial
    power, we resolve concrete disputes presented by parties . . . .”);
    State v. Robertson, 
    2017 UT 27
    , ¶ 40, 
    438 P.3d 491
    (“The judicial
    power, on the other hand, is limited to ‘resolving specific disputes
    between parties as to the applicability of the law to their actions.’”
    (quoting Carter v. Lehi City, 
    2012 UT 2
    , ¶ 37, 
    269 P.3d 141
    )).
    ¶114 The Welling framework is solidly grounded in principles
    required by the Utah Constitution—principles we have repeatedly
    highlighted. We first highlighted these constitutional principles in In
    re Handley’s Estate, 
    49 P. 829
    (Utah 1897). Handley’s Estate involved
    the enactment of legislation aimed at undoing the effect of a
    judgment or decree of the Utah courts. The decree had ruled that
    only the “lawful wife” of a deceased and her children were entitled
    judgment in a case involving [at least] a potential for a dispute
    between parties with adverse legal interests.” Supra ¶ 106. This
    historical premise is significant. It suggests a good reason for the
    absence of the fact-pattern that Justice Pearce finds lacking. We may
    not have articulated the requirement of adversariness in a case in
    which it was lacking, but that may just be because that requirement
    was so deeply embedded in our history and tradition that no one
    thought to challenge it.
    That leads to a second response to Justice Pearce: Our cases have
    spoken with a single, longstanding voice in articulating a
    requirement of adversariness as an element of the judicial power.
    Welling speaks unmistakably in defining “the term ‘judicial power’
    as employed in the [Utah] Constitution.” Citizens’ Club v. Welling, 
    27 P.2d 23
    , 24 (Utah 1933). It says that the “term ‘judicial power . . . ’ is
    generally understood to be the power to hear and determine
    controversies between adverse parties and questions in litigation.”
    
    Id. at 26.
    Our later cases have repeatedly reaffirmed this central tenet
    of judicial power. See Judd v. Drezga, 
    2004 UT 91
    , ¶ 37, 
    103 P.3d 135
    ;
    Salt Lake City v. Ohms, 
    881 P.2d 844
    , 849 (Utah 1994); Timpanogos
    Planning & Water Mgmt. Agency v. Cent. Utah Water Conservancy Dist.,
    
    690 P.2d 562
    , 569 (Utah 1984). So the fact-pattern presented here (a
    single-party case on appeal) may not appear in our precedent. But
    the general requirement of adversariness has been clearly stated over
    the course of many decades. And I see no basis for questioning it
    here.
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                            Lee, A.C.J. concurring
    to succeed to the assets of a decedent’s estate, and that a second,
    plural wife and her children were foreclosed from succession. 
    Id. at 829.
    Years later, after “the time within which a motion for rehearing
    could be made,” the legislature enacted a law providing that
    governing statutes should “at all times” have been interpreted to
    allow “the issue of bigamous and polygamous marriages . . . to
    inherit,” and allowing for the filing of a “motion for a new trial” in
    any case based on a different view of the law. 
    Id. (quoting Act
    of
    March 9, 1896, §§ 1–2). This court struck down that statute as an ultra
    vires act by the legislature. 
    Id. at 831.
    And in so doing we framed the
    fundamental tenets of the separation of powers principles later set
    forth in Welling.
    ¶115 We first described the nature of the judicial power
    exercised by the court in entering the probate decree—in entering a
    decree on a “trial of a case,” or in other words resolving a
    “contention[]” among competing parties. 
    Id. at 830.
    And we held that
    such power cannot properly be exercised by the legislature: “After
    the court has interpreted or construed a statute on the trial of a case,
    and rendered judgment, the legislature cannot affect it by a
    declaratory or explanatory law, giving the law under which the
    decree was rendered a different construction.” 
    Id. “To hold
    that the
    legislature can,” we said, “would recognize the lawmaking
    department as a court of errors, with power to overturn all
    judgments and decrees depending upon the interpretation or the
    construction of statutes.” 
    Id. And we
    emphasized the importance of
    separating these powers instead of allowing them to be consolidated
    in a single branch. See 
    id. (noting that
    “concentration of power would
    give to the class of officers possessing it absolute power, and that
    would amount to a despotism”).
    ¶116 Handley’s Estate deemed the legislation in question “a plain
    attempt on the part of the legislature to exercise judicial powers.” 
    Id. And it
    established the core element of judicial power—in the
    resolution of “contentions” by competing claimants.
    ¶117 Handley’s Estate also clarified the relationship between the
    judicial power and the legislative power. In Handley’s Estate we
    noted that the legislature’s prerogative is to “promulgate an
    ordinance for a whole class of rights in the community.” 
    Id. at 832.
    And we distinguished that from the judicial act that the legislature
    had attempted—in seeking “to regulate a case which had already
    occurred.” 
    Id. (emphasis added).
    Thus, we struck down the
    enactment of the legislature because we found that that branch of
    government had “assumed the right to declare the law had an
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    IN RE GESTATIONAL AGREEMENT
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    operation and effect with respect to [specific] cases”—a power we
    found to be inherently judicial. 
    Id. ¶118 We
    expanded on these same themes more recently in our
    decision in Carter v. Lehi City, 
    2012 UT 2
    , 
    269 P.3d 141
    . The question
    in Carter concerned the extent of the power of the people to exercise
    legislative power by initiative—a right guaranteed by Article VI of
    the Utah Constitution. In defining the scope of that power we noted
    that the power of the people to legislate is “coextensive” with the
    power of the legislature. 
    Id. ¶ 20.
    And we reformulated our case law
    standards defining the initiative power by reference to the nature of
    “legislative” power under Article VI. In so doing we noted that
    “[o]ur understanding of the legislative power is informed by its
    placement in relation to—and separation from—the executive and
    judicial power.” 
    Id. ¶ 33.
    With that in mind, we proceeded to outline
    the contours of the legislative, executive, and judicial power under
    our state constitution. And we did so in a manner right in line with
    our framework in Welling and Handley’s Estate.
    ¶119 Carter says that legislative power involves the
    “promulgation of laws of general applicability.” 
    Id. ¶ 34.
    It also notes
    that “[t]his hallmark of legislative power can be highlighted by
    contrasting this power with its executive and judicial counterparts.”
    
    Id. ¶ 37.
    “Once a general rule is established by the legislature, its
    enforcement is left to the executive (by applying it to the
    particularized circumstances of individuals, through functions like
    prosecution or licensing) and its adjudication is left to the judiciary
    (by resolving specific disputes between parties as to the applicability
    of the law to their actions).” 
    Id. (footnote omitted).
    Thus, executive
    acts involve “case-specific considerations as to whether the acts of a
    particular person fall within the general rule adopted by the
    legislature.” 
    Id. ¶ 47.
    And judicial acts involve the resolution of
    “disputes regarding the application of legislative acts to the
    circumstances of individual cases.” 
    Id. ¶ 50.
        ¶120 We reinforced this construct of the judicial power in our
    decision in Utah Transit Authority v. Local 382 of the Amalgamated
    Transit Union, 
    2012 UT 75
    , 
    289 P.3d 582
    . There we rejected the notion
    of a common-law “public interest” exception to the doctrine of
    mootness—the idea that mootness is a “principle of our own
    creation,” which we can “abolish . . . at our whim” if “the question
    presented is sufficiently important or interesting to merit our
    attention.” 
    Id. ¶ 17.
    We did so on the ground that the doctrine of
    mootness “is an element of the principles defining the scope of the
    ‘judicial power’ vested in the courts by the Utah Constitution.”
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    Id. ¶ 18.
    And we therefore proceeded to delineate the basic contours
    of the judicial power.
    ¶121 In so doing we “reiterated” the longstanding principle
    “that when a court ‘ascertain[s] that there is no jurisdiction in the
    court because of the absence of a justiciable controversy, then the
    court can go no further, and its immediate duty is to dismiss the
    action.’” 
    Id. ¶ 19
    (alteration in original) (emphasis added) (quoting
    Baird v. State, 
    574 P.2d 713
    , 716 (Utah 1978)). And we explained that
    this standard “find[s] support in the text and original understanding
    of the judicial power clause of the Utah Constitution.” 
    Id. ¶ 20.
    We
    quoted the operative text of Article VIII, which provides that “‘[t]he
    judicial power of the state’ is ‘vested in a Supreme Court, in a trial
    court of general jurisdiction known as the district court, and in such
    other courts as the Legislature may by statute establish.’” 
    Id. (alteration in
    original). And we noted that this “make[s] one
    fundamental point abundantly clear: The scope of our authority is
    not a matter for the courts to define at our preference or whim; we
    are constitutionally limited to wield only ‘judicial power’ and may
    not act extra-judicially (regardless of how interesting or important
    the matter presented for our consideration).” 
    Id. B ¶122
    Justice Pearce concludes that “we have never” squarely
    examined whether the Utah Constitution “requires adversity
    between parties as a jurisdictional prerequisite.” Supra ¶ 60. And he
    accordingly raises concerns about the viability of this principle. I see
    the matter differently. I find no room to quarrel with the
    requirement of adversariness in our law of justiciability.
    ¶123 We have repeatedly cited the notion of adversariness as an
    essential hallmark of the judicial power. And we have emphasized
    the point by noting that the application of the law to a single person
    or entity is the essence of executive power. See Carter, 
    2012 UT 2
    ,
    ¶ 34; 
    Welling, 27 P.2d at 26
    . This is a long-established, deeply
    embedded tenet of our case law. And in my view Justice Pearce has
    not identified a persuasive ground for doubting it.
    ¶124 In University of Utah v. Industrial Commission of Utah, we
    stated that “courts of general jurisdiction have no power to decide
    abstract questions or to render declaratory judgments, in the absence
    of an actual controversy directly involving rights.” 
    229 P. 1103
    , 1104
    (Utah 1924) (emphasis added). Similarly in Welling we stated that the
    “‘judicial power of the courts’ is generally understood to be the
    power to hear and determine controversies between adverse parties
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    IN RE GESTATIONAL AGREEMENT
    Lee, A.C.J. concurring
    and questions in 
    litigation.” 27 P.2d at 26
    (emphasis added). The
    “power” we were speaking about in both cases is the only power our
    courts have—the constitutionally conferred “judicial power.” See
    UTAH CONST. art. VIII, § 1. And we’ve made clear that that power is
    limited to resolving “controversies between adverse parties.”
    
    Welling, 27 P.2d at 26
    . So, contrary to Justice Pearce’s contention, we
    have determined that the adversity requirement is a constitutional
    prerequisite to our exercise of jurisdiction.
    ¶125 Justice Pearce attempts to discredit the language in
    University of Utah, Welling, and other cases on the ground that it may
    not “reflect the reality of judicial practice either currently or at the
    time of statehood.” Supra ¶ 64. To support this argument, he cites a
    number of nonadversarial proceedings that historically were
    entertained in the Utah courts. Supra ¶ 63. It may be true that our
    courts have presided over some “proceedings that had the potential
    to lack adverse parties.”99 Supra ¶ 63. But even if so, these would be
    exceptions to the rule. The categories of cases identified by Justice
    Pearce seem distinguishable in any event. An adoption or a probate
    case is a matter in rem—a matter initiated by notice to the public of
    the pendency of an action in which any and all claimed interests in
    the res (the child or the estate) will be adjudicated. See Ann
    Woolhandler, Adverse Interests and Article III, 111 N.W. U. L. REV.
    1025, 1036–43 (2017). Such cases are inherently adverse in the sense
    that they will inevitably involve the entry of a judgment that will
    conclusively cut off the rights of interested claimants.100 And
    although they may be filed by a single party, a competing claimant is
    on notice of the pendency of the action and the potential that her
    rights will be foreclosed if she does not intervene and object. In that
    99 But see generally Ann Woolhandler, Adverse Interests and Article
    III, 111 N.W. U. L. REV. 1025, 1036–43 (2017) (defending the
    requirement of adversariness and distinguishing apparent
    exceptions).
    100See 
    id. at 1032–34
    (explaining that “adverse legal arguments”
    are not necessary to the exercise of judicial power so long as there
    are “adverse legal interests that will be affected by a decree,” notice
    to adverse parties, and an opportunity for adverse argument, and a
    request for entry of a judgment); 
    id. at 1034-35
    (noting that “in
    rem-type proceedings necessarily include the potential for a form of
    default, just as in personam actions do,” and concluding that the
    mere possibility of a lack of adversary argument, as with entry of
    default, does not mean there is no requirement of adversariness).
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    sense the in rem action is not much different from any of a number of
    in personam actions that may be resolved without an appearance by a
    party.101 A collection action is a good example. Such an action may
    implicate the rights of a debtor. But most collection cases are
    resolved by default. That doesn’t make them non-adversary in
    nature. And the adoption and probate cases seem to me to be
    comparable. They involve a contest between parties—competing
    claimants—and not the mere execution of the law as applied to a
    single person or entity.
    ¶126 The name change example cited by Justice Pearce may be
    harder to reconcile. See supra ¶ 63. And I suspect there may be other
    examples of single-party actions that have been filed in our courts.
    But that leaves the question of the proper inference to draw from the
    existence of these kinds of cases. The mere existence of historical
    “cases” lacking in adversariness is not a sufficient ground for
    ignoring a longstanding limitation on the judicial power. That
    limitation is too deeply embedded in our law, history, and tradition
    to abandon it at the first sight of an apparent exception.
    ¶127 Historical exceptions to the general rule could be viewed
    as excesses—actions beyond the scope of the judicial power. Not all
    historical applications of a constitutional provision, after all, can be
    viewed as falling within the historical understanding of the legal
    principle embedded in such provision.102 The meaning of the
    constitution is dictated by the historical understanding of the
    language ratified by the people.103 And because the “judicial power”
    101   See 
    id. at 1036–43.
       102 See Lawrence B. Solum, The Fixation Thesis: The Role of Historical
    Fact in Original Meaning, 91 NOTRE DAME L. REV. 1, 21 (2015)
    (explaining that original public meaning originalism claims that the
    “communicative content” of the Constitution is fixed; noting that
    historical applications are not necessarily embraced or fixed, but
    could be a result of a factual or historical mistake).
    103 See Zimmerman v. Univ. of Utah, 
    2018 UT 1
    , ¶ 22, 
    417 P.3d 78
    (reminding parties making constitutional arguments to ground them
    in the “text or original meaning of the Utah Constitution”); State v.
    Hernandez, 
    2011 UT 70
    , ¶ 8, 
    268 P.3d 822
    (“[O]ur analysis ‘begin[s]
    with a review of the constitutional text.’” (second alteration in
    original) (quoting Dexter v. Bosko, 
    2008 UT 29
    , ¶ 11, 
    184 P.3d 592
    ));
    Lawrence B. Solum, The Interpretation-Construction Distinction, 27
    (Continued)
    55
    IN RE GESTATIONAL AGREEMENT
    Lee, A.C.J. concurring
    historically is understood to include a requirement of adversariness,
    the most natural reaction to Justice Pearce’s name change example
    could be that this falls beyond the proper exercise of that power.
    ¶128 I can also see a second response. We could view a name
    change as simply a limited exception to the general rule. More
    generally, we could endorse historically recognized exceptions as
    exceptions to the general rule. That is a much more measured, and in
    my view more appropriate, response to the history cited by Justice
    Pearce. It makes more sense to me to see exceptions as exceptions
    than as an indication that our courts have never really meant what
    we said when we identified adversariness as a central tenet of the
    judicial power. Going forward, we could decide whether a future
    single-party action fits within an historically recognized exception.
    And, if not, we could conclude that the general rule (requiring
    adversariness) is controlling.
    ¶129 Either of these approaches is a more measured response
    than the one suggested by Justice Pearce. We can make room for the
    name change example without abandoning the requirement of
    adversariness that is embedded in both our nation’s history and our
    Utah precedent.
    ¶130 We need not resolve this problem here, however. We are
    not required to decide whether and to what extent single-party
    actions like the name change petitions fall within the reach of the
    judicial power under Article VIII. The only question presented today
    is whether the legislative authorization of an uncontested petition
    under a gestational agreement is properly justiciable. And I am
    comfortable, for reasons presented in the majority opinion and
    elaborated upon here, that this case is justiciable—because it is
    functionally indistinguishable from an uncontested adoption
    proceeding, which is both deeply rooted in our history and
    effectively “adversary” in the in rem sense.
    ¶131 I see no ground for any further questioning of our
    longstanding requirement of adversariness. The lack of an express
    reference to a requirement of a “case” or “controversy” in Article
    CONST. COMMENT. 95, 101 (2010) (“[T]he linguistic meaning of the
    Constitution is the meaning that the constitutional text had to the
    competent speakers of American English at the time the Constitution
    was framed and ratified.”).
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    VIII seems to me not to tell us much.104 The federal reference to
    “cases” and “controversies” is in Article III, Section 2—a clause that
    limits the subject matter jurisdiction of federal courts. But our state
    courts are courts of plenary subject-matter jurisdiction, so there is no
    need for a state analog. The operative clause in both the federal and
    state constitution, in any event, is in the conferral on the courts of
    “judicial power.” UTAH CONST. art. VIII, § 1; U.S. CONST. art. III, §
    1.105 And the “judicial power,” as noted, has long been understood to
    carry traditional limits on authority—as in prohibitions on the
    issuance of advisory opinions and the requirements of standing. See
    Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 
    2012 UT 75
    , ¶ 23, 
    289 P.3d 582
    .
    104 See Gregory v. Shurtleff, 
    2013 UT 18
    , ¶ 69, 
    299 P.3d 1098
    , 1120
    (Lee, J., concurring in part and dissenting in part) (concluding that
    “although our constitution does not limit our authority (as the
    federal constitution does) to the resolution of a ‘case or controversy,’
    the lack of such restriction is hardly a carte blanche license to reach
    out to exercise any power we deem expedient,” and setting forth the
    basis for the conclusion that courts are limited to the exercise of
    “judicial power” as traditionally understood (internal citation
    omitted)).
    105   Because the Utah constitution and the United States
    constitution both use the same “judicial power” language, it may be
    helpful to look to federal case law to better understand the nature of
    our requirement of adversariness. Justice Pearce attempts to preempt
    this move by arguing that “federal law regarding adversariness may
    prove of limited utility.” Supra ¶ 68. He notes that like Utah’s courts,
    federal courts historically “presided over a number of proceedings
    that did not require adverse parties.” Supra ¶ 68. And he suggests
    that this historical evidence may be sufficient to undercut our
    confidence in a federal adversariness requirement. Supra ¶¶ 66, 68.
    But the historical examples he cites are either distinguishable or are
    long-recognized exceptions to the general rule. See supra ¶¶ 125-128;
    see also supra ¶ 125 n.99. And I see no need to rely on federal case law
    to make sense of our own justiciability requirement. We have been
    quite clear in announcing that adversariness is a prerequisite to our
    exercise of jurisdiction. See, e.g., Robertson, 
    2017 UT 27
    , ¶ 40; 
    Welling, 27 P.2d at 26
    ; Univ. of 
    Utah, 229 P. at 1104
    . I see no basis for backing
    away from that established proposition here.
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    ¶132 The requirement of adversariness is no different. Our
    exercise of judicial power, moreover, “must be in the context of the
    issuance of ‘writs’ or in our resolution of ‘cases,’ a formulation that
    implies a particular form for exercising the judicial power.” Gregory
    v. Shurtleff, 
    2013 UT 18
    , ¶ 73, 
    299 P.3d 1098
    (Lee, J., concurring in part
    and dissenting in part); see also UTAH CONST. art. VIII, §§ 1, 3, 5
    (recognizing judicial power to issue “writs” and decide “cases”).
    That means that the scope of the judicial power is defined by the
    “types of writs and cases traditionally resolved in the courts”
    historically. Gregory, 
    2013 UT 18
    , ¶ 74 (Lee, J., concurring in part and
    dissenting in part).
    ¶133 This is the traditional understanding of the judicial power.
    And the traditional formulation carries a requirement of
    adversariness even without an express “case and controversy”
    clause—just as it carries a requirement of standing and a prohibition
    on the resolution of moot disputes. See Utah Transit Auth., 
    2012 UT 75
    , ¶ 18; see also Gregory, 
    2013 UT 18
    , ¶ 73 n.7 (Lee, J., concurring in
    part and dissenting in part) (noting that although our courts “may
    not be limited to the resolution of what amounts to a federal ‘case or
    controversy,’ they are confined to the exercise of the ‘judicial power’
    in the issuance of ‘writs’ and the decision of ‘cases,’” and that
    “[w]hatever the differences” between the state and federal
    constitution, “it surely cannot be said that our judicial power is
    unfettered, or that it is subject to any evolving limits that we may
    wish to impose”).
    ¶134 For these reasons I would not lightly presume that our
    Utah framers made a conscious decision to open the doors of our
    courts to single-party petitions. Such a conclusion would not just
    contradict many decades of case law. It would also undermine the
    premises of our adversary system of justice. And it would require
    our courts to take on roles we are politically and institutionally ill-
    equipped to tackle.
    ¶135 We assign executive tasks to the executive for good
    reasons. When the government makes an executive decision—as in
    permitting, licensing, or prosecuting—it is engaged in an
    inquisitorial endeavor. It is investigating, evaluating, and resolving a
    matter on behalf of the public. Our courts are not designed for such
    tasks. We are unrepresentative and largely unaccountable to the
    people. And we are not set up for independent investigation.
    ¶136 For all these reasons I would reaffirm rather than question
    our longstanding commitment to the requirement of adversariness.
    For many decades our cases have reinforced this premise of judicial
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    power. And our entire branch of government is built around this
    principle. I would not abandon it here.
    II
    ¶137 Justice Pearce’s second concern goes to the majority’s
    statement that “we are constitutionally limited to wield only judicial
    power.” Supra ¶ 12 (citation omitted) (internal quotation marks
    omitted). He argues “that the legislative, executive, and judicial
    branches of government may be tasked with responsibilities not
    plainly within their respective spheres, so long as those
    responsibilities do not unconstitutionally infringe on another
    branch’s duties.” Supra ¶ 72. This position, he contends, is supported
    by Article V of the Utah Constitution and our precedent.
    ¶138 I read our constitution differently. The limits of each
    branch’s powers seem to be circumscribed by the terms and
    conditions of Articles VI, VII, and VIII. The first clause of Article V
    suggests as much. See UTAH CONST. art. V, § 1 (“The powers of the
    government . . . shall be divided into three distinct departments
    . . . .”). The second clause of Article V seems to speak to a separate
    inquiry—the limits of the powers of people “charged with the exercise
    of powers properly belonging to one of” the branches. 
    Id. And cases
    implicating those limits are resolved using the In re Young
    framework.
    ¶139 I present this position below before raising some points of
    disagreement with Justice Pearce’s approach. I do so without
    offering a definitive statement on the constitutional limits of our
    power. Such a statement is not necessary here. Again, my preference
    would be not to opine on any of the issues raised by Justice Pearce. I
    write only to respond to him—to provide a counter-balance to what
    would otherwise stand as a one-sided statement of our law in
    anticipation of a “future case.” See supra ¶ 101 n.95.
    A
    ¶140 We have adopted a consistent framework for assessing the
    powers of the three branches of state government under the Utah
    Constitution. The judicial power, as noted, has long been defined by
    reference to the text and original meaning of Article VIII. See Utah
    Transit Auth. v. Local 382 of Amalgamated Transit Union, 
    2012 UT 75
    ,
    ¶ 20, 
    289 P.3d 582
    . And we have followed the same pattern in
    considering the powers of the legislative and executive branches of
    government—looking to the text and history of Article VI to define
    the legislative power, see Carter v. Lehi City, 
    2012 UT 2
    , ¶ 22, 
    269 P.3d 141
    , and the text and history of Article VII to define the executive
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    power, see 
    id. ¶ 49;
    Citizens’ Club v. Welling, 
    27 P.2d 23
    , 26 (Utah
    1933).
    ¶141 This framework gives meaning to all provisions of the
    constitution. It preserves the constitutional limits described in
    Articles VI, VII, and VIII.106 And it pays respect to the language of
    Article V, section 1. That section has two clauses—one that reinforces
    the notion that “[t]he powers of the government of the State of Utah
    shall be divided into three distinct departments, the Legislative, the
    106 Justice Pearce expresses some skepticism of the view that these
    articles establish a separation of powers. Supra ¶ 95 n.93. He claims
    that “nothing in articles VI, VII, and VIII expressly limits the power
    of each branch to the powers described in those articles.” Supra ¶ 95
    n.93. Yet each of the clauses he quotes expressly vests the powers of
    government in one and only one branch of government. Article VIII,
    for instance, states that “[t]he judicial power of the state shall be
    vested in a Supreme Court, in a trial court of general jurisdiction
    known as the district court, and in such other courts as the
    Legislature by statute may establish.” UTAH CONST. art. VIII, § 1.
    Because the judicial power is vested solely in the courts, the clear
    “negative implication” is that the executive and legislative branches
    may not exercise judicial power. See ANTONIN SCALIA & BRYAN
    GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 107
    (2010) (describing the negative-implication canon). The same goes
    for the vesting of legislative power in the legislative branch and the
    vesting of executive power in the executive branch. UTAH CONST. art.
    VI, § 1; art. VII, § 5. It is only the legislature (and “the legal voters of
    the State”) that may exercise legislative authority and the executive
    that may exercise executive authority.
    The fact that each branch is given specific and narrow authority
    comports with the strict separation of powers mandate found in
    article V—“[t]he powers of the government of the State of Utah shall
    be divided into three distinct departments.” UTAH CONST. art. V, § 1
    (emphasis added). So I remain convinced that articles VI, VII, and
    VIII describe constitutional limits—the judicial branch has only
    judicial power, the legislative branch has only legislative power, and
    the executive branch has only executive power. The grants of
    authority, in other words, are exclusive. So “when the [g]overnment
    is called upon to perform a function that requires an exercise of
    legislative, executive, or judicial power, only the vested recipient of
    that power can perform it.” Dep’t of Transp. v. Ass’n of Am. R.R.s, 
    135 S. Ct. 1225
    , 1241 (2015) (Thomas, J., concurring).
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    Executive, and the Judicial,” and a second that provides that “no
    person charged with the exercise of powers properly belonging to
    one of these departments, shall exercise any functions appertaining
    to either of the others, except in the cases herein expressly directed
    or permitted.” UTAH CONST. art. V, § 1.
    ¶142 The first clause simply reinforces the terms and conditions
    of Articles VI, VII, and VIII, which define the powers of the
    legislative, executive, and judicial branches of our government. And
    the second seems to speak not to the exercise of power of a branch
    qua branch, but to the exercise of power by any “person charged with
    the exercise of powers properly belonging to one of these
    departments.” 
    Id. (emphasis added).
    It places limits on the ability of
    such a person to also “exercise any functions appertaining to either
    of the other[]” branches—stating that he or she may not do so
    “except in the cases . . . expressly directed or permitted” by the
    constitution. 
    Id. ¶143 We
    addressed this language in In re Young. There we were
    asked to determine the constitutionality of a statute providing for
    participation by individual members of the legislature on the Judicial
    Conduct Commission. In re Young, 
    1999 UT 6
    , ¶¶ 3–5, 
    976 P.2d 581
    .
    We looked to Article V because it speaks directly to the question of
    the constitutionality of the exercise of governmental power by a
    “person charged with the exercise of powers properly belonging to”
    one of our branches of government. We adopted a three-step test to
    apply the language of Article V. That test asks (1) whether
    governmental officials are “‘charged with the exercise of powers
    properly belonging to’ one of the three branches of government”; (2)
    whether the function given to such officials is “one ‘appertaining to’
    another branch of government”; and (3) whether the constitution
    “‘expressly’ direct[s] or permit[s] the exercise of the otherwise
    forbidden function.” 
    Id. ¶ 8.
        ¶144 Applying this test, our Young opinion upheld the
    constitutionality of the composition of the Judicial Conduct
    Commission. 
    Id. ¶ 6.
    But in so doing we did not articulate an
    omnibus test for assessing the scope of powers of our three branches
    of government. Nor did we override the case law cited above, which
    says that we measure the powers of the three branches of
    government by reference to the constitutional articles that define
    their powers (Articles VI, VII, and VIII). Rather we recognized limits
    on the exercise of power by persons serving in one branch but
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    exercising power “appertaining” to a different branch.107 This is the
    domain of the second clause of Article V, section 1.
    ¶145 Justice Pearce is thus right that I am suggesting that
    “[A]rticle V presupposes two distinct inquiries.” Supra ¶ 95. The two
    distinct inquiries follow from the two clauses of Article V—one that
    speaks to the powers of one of our three branches of government
    and the other that speaks to the propriety of a “person charged with
    the exercise” of the powers of one of the branches also exercising
    107   It may not always be easy to determine whether a person is
    acting on behalf of a branch of government or merely as a private
    individual. But the text and structure of Article V require us to
    attempt to draw that line.
    The precise boundaries of the line will have to await an
    appropriate case. For now, I would simply observe that there will be
    easy cases—cases in which it is apparent that a person is acting as a
    representative of a particular branch of government and not as a
    private person. Those cases, in my view, would necessarily
    encompass a circumstance in which a judge is acting as a judge to
    fulfill the responsibilities assigned by the constitution to a judge. See
    UTAH CONST. art. VIII, §§ 2–5. And such cases may also extend to the
    actions of the Chief Justice in making an appointment on behalf of
    the judicial branch of government, see infra ¶¶ 146–48, or otherwise
    acting as the head of our branch of government.
    This may be the answer to Justice Pearce’s “Arbor Day”
    hypothetical. See supra ¶ 95. It may well be unconstitutional for the
    legislature to “requir[e] the judicial branch to oversee the planting of
    trees on Arbor Day.” Supra ¶ 95. That would certainly follow if the
    exercise of such function exceeds the scope of the “judicial power”
    assigned to our branch of government in Article VIII. What if the
    statute “gave that responsibility to the Chief Justice individually”?
    Perhaps it would depend on whether the Chief Justice’s
    appointment is in his official capacity as Chief Justice (or head of the
    judicial branch), or whether he is acting instead as a private person.
    These are questions for another day. But in my view these questions
    do not undermine the inquiry that is called for by the structure of
    Article V. To the contrary, they are the very questions the text of
    Article V demands. I am accordingly not troubled by the fact that the
    legislature could perhaps “circumvent[]” a potential constitutional
    issue by appointing individuals in their personal capacity. Supra ¶ 95
    n.92. If the plain language of our constitution permits this, I see no
    reason for us to be concerned.
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    “functions appertaining to either of the others.” If we are to credit
    both clauses it seems that we should endorse two distinct inquiries.
    ¶146 Justice Pearce’s hypothetical, supra ¶ 79, helps highlight
    the significance of the structure of Article V—of the distinction
    between the powers of the branches of our government (controlled
    by the first clause of Article V and the provisions of Articles VI, VII,
    and VIII, which are incorporated by reference therein) and the
    limitations on the powers of “persons” serving in these branches
    (controlled by the second clause of Article V). The hypothetical
    implicates two distinct questions: (a) whether the judicial
    department of government may “appoint” persons to a legislatively
    created “commission”; and (b) whether a person serving in the
    judicial branch may serve on that commission. The latter question is
    in fact a question for Article V. To answer that question we would
    ask whether a judge (a “person charged with the exercise of [judicial]
    powers”) is exercising “powers properly belonging” to another
    branch of government. UTAH CONST. art. V, § 1. And that question
    would be resolved under the In re Young test.
    ¶147 The former question does not seem to be a matter for
    Article V, however. This question, highlighted by Justice Pearce, is
    whether the judicial branch of government may exercise a power of
    “appointment” in these circumstances. Justice Pearce says that we
    should ask “whether, in making an appointment” to this
    commission, the judicial branch is “fulfilling a function appertaining
    to another branch”—the executive. Supra ¶ 79. But this question does
    not seem to fall within the domain of Article V. Here we are not
    asking whether a “person” fulfilling the duties of a judge may also
    fulfill a function “properly belonging” to another branch of
    government. We are asking whether the judicial branch of
    government itself has the power to appoint. And the answer to that
    question would be informed by longstanding practice and a
    historical understanding of the terms of Article VIII. The head of a
    branch of government like this one has long exercised the power to
    administer and coordinate the work of that branch. 108 This includes
    108 See UTAH CONST. art. VIII, § 12 (identifying the Chief Justice as
    the “chief administrative officer” of the judicial branch); State v.
    LaFrance, 
    471 A.2d 340
    , 344–45 (N.H. 1983) (“The power of the
    judiciary to control its own proceedings, the conduct of participants,
    the actions of officers of the court and the environment of the court is
    a power absolutely necessary for a court to function effectively and
    (Continued)
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    the power to appoint judges to serve on committees and serve
    various administrative functions.109
    ¶148 Justice Pearce raises the question whether our Chief
    Justice’s appointment power could extend to a body that performs
    legislative and executive functions. Supra ¶ 79 n.84. This is a trickier
    question—one that would require more careful originalist analysis
    and briefing in an appropriate case. On this Justice Pearce is certainly
    correct—“we do not need to answer these questions to resolve this
    case.” Supra ¶ 97. If and when we do need to answer these questions,
    however, I think the question would still be one for Article VIII—not
    for the Young test. The judicial power to appoint a person to a hybrid
    governmental body, in other words, would have to be rooted in
    some established, historical understanding of judicial power, not in
    the mere notion that such power would not encroach on the powers
    of the executive branch.
    do its job of administering justice.”); Zylstra v. Piva, 
    539 P.2d 823
    , 827
    (Wash. 1975) (en banc) (“[T]he ultimate power to administer the
    courts clearly rests with the judiciary.”).
    109 See Ex parte Siebold, 
    100 U.S. 371
    , 397–99 (1879) (recognizing
    that the appointment power is not incompatible with the judicial
    power); Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259–61 (1839)
    (upholding a court’s power to appoint its own clerk).
    Justice Pearce suggests that these cases are not directly “tethered
    to the question of what the people of Utah would have understood
    article V to mean.” Supra ¶ 79 n.83. I disagree. “Judicial power” is a
    legal term of art transplanted from the United States Constitution.
    See U.S. CONST. art. III, § 1. So what the federal courts understood
    “judicial power” to encompass seems highly relevant to
    understanding how the term would have been understood in 1895
    by the people of Utah. See Maxfield v. Herbert, 
    2012 UT 44
    , ¶ 31, 
    284 P.3d 647
    (“[W]hen a word or phrase is ‘transplanted from another
    legal source . . . it brings the old soil with it.’” (citation omitted)).
    And in any event, I am not claiming to have exhausted originalist
    research into whether “judicial power” encompasses a limited power
    of appointment. I raise these cases to offer a response to Justice
    Pearce’s hypothetical—a hypothetical used to highlight questions on
    which we have no briefing and that are not before us in this case. See
    supra ¶ 101 n.95.
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    B
    ¶149 Justice Pearce offers a different take on Article V and In re
    Young. He does not read them to draw a distinction between persons
    and branches. Instead he suggests that when assessing whether “the
    [l]egislature may authorize or assign to the judicial branch functions
    not traditionally understood to be encompassed in [the judicial]
    power” we should apply the Young framework. Supra ¶¶ 75-77
    (emphasis added). I concede that In re Young could be read to
    eliminate the distinction between persons and branches. Young states
    that unless a function is “one that is essential, core, or inherent in the
    very concept of one of the three branches of a constitutional
    government[,] . . . the function is not one barred to other branches, or
    to members of those branches.” In re Young, 
    1999 UT 6
    , ¶ 26, 
    976 P.2d 581
    . And this is not the only reference to a branch of government
    exercising non-essential powers we might typically associate with
    another branch. Supra ¶ 84. So I can see grounds for skepticism about
    whether Young draws a “substantive distinction between the roles
    individuals may fulfill and the authority their respective
    departments may exercise.” Supra ¶ 83. But I also see some
    significant problems with his approach.
    ¶150 First, Justice Pearce’s reading of Young appears to run
    afoul of the language of Article V. That article clearly speaks in terms
    of persons and not branches. It states “no person charged with the
    exercise of powers properly belonging to one of [the branches], shall
    exercise any functions appertaining to either of the other[]
    [branches].” UTAH CONST. art. V, § 1 (emphasis added). Justice
    Pearce’s response to this criticism is that “it is not apparent how [the
    distinction between people and branches] would make much
    practical difference.” Supra ¶ 83. After all, he says, “[b]ranches of
    government act only through the individuals they employ.” Supra
    ¶ 83. That may be true. But not all persons serving in a branch of
    government are acting on behalf of that branch of government in
    everything they do. The second clause of Article V makes this point
    clear. Sometimes a person “charged with the exercise” of the powers
    of one branch of government may be called on to fulfill “functions
    appertaining” to another. If such a person is acting as a “person” and
    not as a representative of the branch of government, then it seems
    that the Young inquiry is called into play.
    ¶151 The plain meaning of “person” is also distinct from the
    meaning of “branch” (or, to use the constitution’s language,
    “department”). And our job is first and foremost to apply the plain
    meaning of the text of the constitution. Grand Cty. v. Emery Cty., 2002
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    UT 57, ¶ 29, 
    52 P.3d 1148
    . We should not interpret the constitution in
    a way that essentially rewrites it. And Justice Pearce’s approach at
    least arguably amounts to an amendment of the constitution. We
    should be wary of endorsing this reading, particularly in a case in
    which the question is not squarely presented or briefed.
    ¶152 Second, Justice Pearce’s reading risks introducing a
    circular loop of uncertainty into our assessment of the scope of the
    power of our three branches of government. Justice Pearce views
    Young as prescribing a standard that says that the legislature is not
    limited to exercising legislative power, but only prohibited from
    fulfilling functions appertaining to the executive and judicial
    branches, and that the executive is not limited to executive power
    but only from taking on tasks belonging to the other branches.
    ¶153 This reading devolves to a logical impossibility. As a
    logical matter we cannot define the powers of each of our three
    branches of government by only a negative reference to the powers
    of the other two. Without a preconceived notion of what it means to
    be “judicial,” “executive,” and “legislative,” we could never deduce
    the content of any given one of those powers with only the
    knowledge that it is “not the other two.” That type of circular
    reasoning yields no independent information.
    ¶154 The Utah Constitution, moreover, does not define the
    powers of the branches of our government in this reductive way.
    Article VI lists a series of limitations on the exercise of legislative
    power—including the time for the beginning of the annual session of
    the legislature (the fourth Monday in January), UTAH CONST. art. VI,
    § 2, qualifications for office (at least twenty-five years of age and a
    resident of the district from which the person is elected), 
    id. art. VI,
    § 5, terms for expulsion of a legislator “for cause” (upon a two-thirds
    vote of “all the members elected”), 
    id. art. VI,
    § 10, and requirements
    for a “quorum” for each house to “transact business” (a “majority of
    the members of each house”), 
    id. art. VI,
    § 11. Surely these
    restrictions are binding on the legislature. The legislature could not
    choose to begin its session on a different date, alter the qualifications
    for office, expel a member on less than a two-thirds vote, or transact
    business with less than the quorum required by Article VI. These are
    enforceable limits on the legislative power. And the legislature is not
    entitled to ignore them on the ground that ignoring them would not
    involve the exercise of “executive” or “judicial” power.
    ¶155 The same goes for limits on the executive power. Article
    VII (among other things) sets qualifications for constitutional offices
    within the executive department, 
    id. art. VII,
    § 3, authorizes the
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    governor to appoint a committee to investigate the condition of “any
    executive office or state institution” “at any time when the
    Legislature is not in session,” 
    id. art. VII,
    § 5, and prescribes terms
    and conditions for the governor to fill vacancies in “any State or
    district office” (including by stating that the governor’s appointment
    “shall expire at the next election”), 
    id. art. VII,
    § 9. Again these are
    enforceable limits. Perhaps a governor might wish to override some
    of them. But he could not properly do so—and surely not on the
    ground that an executive act in contravention of these provisions
    does not amount to “legislative” or “judicial” power.
    ¶156 This same framework should at least arguably hold for
    Article VIII limits on the judicial power. We have long interpreted
    the terms of that article to impose limits on our authority—in
    doctrines of justiciability, standing, and a general requirement of
    adversariness.110 And we could not override those limits just because
    our act does not amount to “legislative” or “executive” power.
    ¶157 A hypothetical may help highlight the concern. Suppose
    the legislature enacts a statute requiring courts to issue advisory
    opinions. Under Justice Pearce’s approach, we would analyze the
    110 I agree with Justice Pearce that an originalist inquiry should
    govern our interpretation of Article VIII. Supra ¶ 86. Unlike Justice
    Pearce, however, I do not believe that the doctrines of justiciability,
    standing, and a general requirement of adversariness are founded on
    “parrot[ed] language about the meaning of our constitution
    purloined from cases.” Supra ¶ 86. I see these doctrines as deriving
    from the original meaning of Article VIII. See supra ¶¶ 105-35
    (discussing Article VIII’s adversariness requirement); Gregory v.
    Shurtleff, 
    2013 UT 18
    , ¶¶ 72–92, 
    299 P.3d 1098
    (Lee, J., concurring in
    part and dissenting in part) (discussing Article VIII’s standing
    requirement and tracing the roots of this doctrine in the original
    understanding of the “judicial power”); Utah Transit Auth. v. Local
    382 of Amalgamated Transit Union, 
    2012 UT 75
    , ¶¶ 17–27, 
    289 P.3d 582
    (discussing Article VIII’s prohibition on issuing advisory opinions
    and the mootness doctrine). Perhaps some of our opinions have been
    sparse on “serious originalist” analysis. Supra ¶ 86. But it does not
    follow that their conclusions are therefore unoriginalist. And it
    certainly does not follow that we should be calling these decisions
    into question here—in a case that does not implicate these issues,
    and in which we have absolutely no adversarial briefing. See supra
    ¶ 101 n.95.
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    constitutionality of such a statute by applying the Young framework.
    We would first ask whether the courts are “charged with the exercise
    of powers properly belonging to one of the three branches of
    government.” In re Young, 
    1999 UT 6
    , ¶ 8 (internal quotation marks
    omitted). This question as applied here is nonsensical; it asks
    whether a branch of government is charged with exercising the
    powers properly belonging to a branch of government. That
    highlights the difficulty of extending the Young test to an assessment
    of branches of government. But assuming the test applies we would
    of course conclude that courts are “charged with the exercise” of
    “judicial power”—a power belonging to the judicial branch. UTAH
    CONST. art. VIII, § 1.
    ¶158 The next question would be whether the function that the
    statute has assigned to the courts is one “appertaining to” another
    branch of government. This question is more difficult to answer. It
    would turn on whether issuing advisory opinions is a function
    “essential, core, or inherent” in the powers exercised by the
    legislative or executive branches. In re Young, 
    1999 UT 6
    , ¶¶ 8, 26.
    ¶159 The issuance of advisory opinions resembles a legislative
    function. But I do not believe that it is a function essential to
    legislative power. “Legislative power . . . is the authority to make
    laws . . . .” Rampton v. Barlow, 
    464 P.2d 378
    , 381 (Utah 1970). It
    “generally (a) involves the promulgation of laws of general
    applicability; and (b) is based on the weighing of broad, competing
    policy considerations.” Carter v. Lehi City, 
    2012 UT 2
    , ¶ 34, 
    269 P.3d 141
    . Advisory opinions resemble laws promulgated by the
    legislature in that they provide generally applicable rules without
    resolving a specific controversy. But advisory opinions are not based
    only “on the weighing of broad, competing policy considerations.”
    They are often based on a court’s understanding of the governing
    text of existing law (in statutes, state and federal constitutions, and
    precedent). So I doubt that we can say that an essential function of
    legislative power is the issuance of advisory opinions.
    ¶160 Nor do I think we can say that the issuance of advisory
    opinions is a function essential to the exercise of executive power.
    “Executive acts typically are based not on broad policy grounds, but
    on individualized, case-specific considerations as to whether the acts
    of a particular person fall within the general rule adopted by the
    legislature.” 
    Id. ¶ 47.
    They “encompass[] prosecutorial or
    administrative acts aimed at applying the law to particular
    individuals or groups based on individual facts and circumstances.”
    
    Id. ¶ 34.
    Advisory opinions, in contrast, resolve questions in the
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    abstract without application to particular individuals or groups. I
    therefore doubt that the issuance of advisory opinions is a function
    “essential, core, or inherent” in executive power. And if issuing
    advisory opinions is not an essential legislative or executive
    function, the Young analysis ends and the statutory directive to the
    courts would be deemed constitutional.
    ¶161 That conclusion would be deeply unsettling. “[W]e have
    unequivocally declared that ‘courts are not a forum for hearing
    academic contentions or rendering advisory opinions.’” Utah Transit
    Auth. v. Local 382 of the Amalgamated Transit Union, 
    2012 UT 75
    , ¶ 19,
    
    289 P.3d 582
    (quoting Baird v. State, 
    574 P.2d 713
    , 715 (Utah 1978)).
    And we have stated that “whatever else the judicial power clause
    may imply, it incorporates a prohibition on the issuance of advisory
    opinions by our courts.” 
    Id. ¶ 23.
    Yet under Justice Pearce’s reading
    of Article V, the legislature can require the courts to issue such
    opinions so long as that function is not a core or essential function of
    executive or legislative power.
    ¶162 Justice Pearce seems untroubled by this conclusion. In his
    view, “there is work to be done” before we can definitively say that
    the issuance of advisory opinions is beyond the scope of the judicial
    power recognized in our constitution. Supra ¶ 93. He acknowledges
    that we have previously held that our constitution prohibits us from
    issuing advisory opinions. See, e.g., Utah Transit Auth., 
    2012 UT 75
    ,
    ¶¶ 19–23. But he argues that “the analytical path we took to reach
    that conclusion suggests there is room for additional originalist
    examination.” Supra ¶ 88. Perhaps additional originalist analysis
    would be helpful. And I provide some below. Infra ¶¶ 163–68. But
    we should not be reconsidering such an extensive body of case law
    here, especially when these issues are not properly before us and we
    lack briefing on them. Again, I oppose this extensive foray engaged
    in by my colleague. See supra ¶ 101 n.95. I offer my views reluctantly,
    and only as a response to Justice Pearce.111
    111 We have repeatedly held that “[t]his [c]ourt was not intended
    to be, nor is it endowed with authority to render advisory opinions.”
    State v. Stromquist, 
    639 P.2d 171
    , 172 (Utah 1981) (per curiam). These
    pronouncements seem to me to be deserving of deference as a matter
    of stare decisis. Stare decisis is admittedly at its strongest when a
    constitutional decision is backed by persuasive legal reasoning and
    correct as a matter of original meaning. See State v. Rowan, 
    2017 UT 88
    , ¶ 37, 
    416 P.3d 566
    (Lee, A.C.J., concurring); Eldridge v. Johndrow,
    (Continued)
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    Lee, A.C.J. concurring
    ¶163 The text of Article VIII itself “does little to reveal the
    precise scope of the judicial power.” Utah Transit Auth., 
    2012 UT 75
    ,
    ¶ 20. But that does not mean that our authority is without limits. We
    must engage in “an analysis of the traditional nature of the judicial
    power and of the types of writs and cases traditionally resolved in
    the courts” to understand the scope of our authority. Gregory v.
    Shurtleff, 
    2013 UT 18
    , ¶ 74, 
    299 P.3d 1098
    (Lee, J., concurring in part
    and dissenting in part). And the issuance of advisory opinions has
    long been understood to fall outside the traditional understanding of
    the judicial power.
    ¶164 By the time Utah ratified its Constitution in 1895, federal
    courts had reached a consensus. They had concluded that the judicial
    power did not include the power to issue advisory opinions. This
    common ground was first established in 1793. Writing to Chief
    Justice Jay, Thomas Jefferson asked the court for advice on certain
    questions of law. 3 H. JOHNSTON, CORRESPONDENCE AND PUBLIC
    PAPERS OF JOHN JAY, 486–87 (1891). Chief Justice Jay respectfully
    declined to answer those questions, reasoning that doing so would
    overstep the court’s limited judicial power. 
    Id. at 488–89.
    This
    concept of judicial power was repeatedly emphasized by the
    Supreme Court in the decades that followed. See, e.g., Smith v. Adams,
    
    130 U.S. 167
    , 174 (1889); Liverpool, N.Y. & P.S.S. Co. v. Emigration
    Comm’rs, 
    113 U.S. 33
    , 39 (1885) (“If . . . we should assume the
    plaintiff’s case to be within the terms of the statute, we should have
    to deal with it purely as an hypothesis, and pass upon the
    constitutionality of an act of congress as an abstract question. That is
    not the mode in which this court is accustomed or willing to consider
    such questions.”); Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738,
    819 (1824) (“[The judicial] power is capable of acting only when the
    subject is submitted to it by a party who asserts his rights in the form
    prescribed by law.”); supra ¶ 106 n.97.
    ¶165 One explanation for this long-standing prohibition on
    advisory opinions relates to the “case” or “controversy” language of
    Article III in the United States Constitution. See Muskrat v. United
    
    2015 UT 21
    , ¶ 22, 
    345 P.3d 553
    . And as Justice Pearce rightly points
    out, some of our decisions on the subject of advisory opinions lack
    originalist analysis. Infra ¶ 162. But we did provide such analysis in
    Utah Transit Authority. See 
    2012 UT 75
    , ¶¶ 20–23. So at least that
    opinion is entitled to deference under the doctrine of stare decisis. I
    see no basis for calling that decision into question here.
    70
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                             Lee, A.C.J. concurring
    States, 
    219 U.S. 346
    , 356–58 (1911). Our state constitution admittedly
    lacks such language. But for reasons noted above, I do not see that as
    a barrier to looking to federal law to better understand what the
    phrase “judicial power” meant in 1895. Supra ¶¶ 131 & n.104. And in
    any event, many state courts in 1895 likewise understood the scope
    of their “judicial power” to be limited to resolving actual cases or
    controversies—this despite the lack of “case” or “controversy”
    language in their state constitutions. See Utah Transit Auth., 
    2012 UT 75
    , ¶ 23 (“Several states had already discarded or abandoned the
    practice of issuing advisory opinions, ruled their issuance to be
    beyond the scope of the judicial power recognized in their
    constitutions, or omitted such a provision from a later version of
    their constitution (not to mention those states that disdained the
    practice from the outset).” (citations omitted)).
    ¶166 Some state courts, however, did not follow this practice.
    See, e.g., In re Advisory Opinion, 
    5 So. 613
    (Fla. 1889); In re Opinion of
    the Court, 
    62 N.H. 704
    (1883). But this was largely because their state
    constitutions explicitly permitted the courts to issue advisory
    opinions. See, e.g., FLA. CONST. art. V, § 16 (1868); N.H. CONST. pt. 2,
    art. 74 (1784). The clear consensus in 1895 was that state courts
    lacked the authority to issue advisory opinions unless their state
    constitutions expressly provided otherwise. See, e.g., In re Reply of the
    Judges, 
    33 Conn. 586
    , 587 (1867) (noting that in states where the
    practice of issuing advisory opinions prevails, “there is some
    constitutional provision for it,” and holding that where
    Connecticut’s constitution was silent on the subject, the practice was
    not permissible); In re Application of Senate, 
    10 Minn. 78
    (1865)
    (holding unconstitutional an act conferring advisory functions on the
    state supreme court). We followed this approach in the decades
    following ratification of our constitution. See, e.g., Univ. of Utah v.
    Indus. Comm’n of Utah, 
    229 P. 1103
    , 1104 (Utah 1924). All this
    evidence points to the conclusion that the “judicial power” as
    understood in 1895 did not encompass the power to issue advisory
    opinions.
    ¶167 Justice Pearce notes that section 22 of our original
    constitution provided that “District Judges may, at any time, report
    defects and omissions in the law to the Supreme Court, and the
    Supreme Court, on or before the first day of December of each year,
    shall report in writing to the Governor any seeming defect or
    omission in the law.” UTAH CONST. art. VIII, § 22 (1895). And he
    claims that this language “demonstrates that the framers envisioned
    that this court would have the ability to do more than decide cases
    71
    IN RE GESTATIONAL AGREEMENT
    Lee, A.C.J. concurring
    between adverse parties and would, at least in one annual report,
    opine on what the law should be.” Supra ¶ 94. Again I’m troubled by
    the foray into yet another wrinkle in a complex area of constitutional
    law—in a case in which these issues are not presented for our
    decision, and in which we lack adversarial briefing. But because
    Justice Pearce has opened the door, I see the need to provide a
    response (to round out the picture—lest the bench and bar see only a
    partial one presented by a minority of this court). See supra ¶ 101
    n.95. And again I see the matter differently. I am not suggesting that
    the sole power that this court possesses is to resolve “cases between
    adverse parties.” I am simply suggesting that we are limited to
    exercising the “judicial power” as set forth in Article VIII. And that
    power does not include the power to issue advisory opinions.
    ¶168 Section 22 seems to fit within our longstanding tradition of
    collaborating with the other branches of government to improve the
    law.112 We may meet with the Governor and legislative leadership to
    discuss matters of mutual concern. We provide regular presentations
    on budget needs and discuss matters related to the administration of
    the law. See UTAH R. JUD. ADMIN. 3-406. (prescribing standards for
    the judicial council to take positions on proposed legislation).
    Legislative and executive staff may attend meetings of the Judicial
    Council and of advisory committees of this court. And during the
    legislative session, we provide advice on matters of concern to the
    justice system. See 
    id. 3-106 (prescribing
    standards for the judicial
    council to take positions on proposed legislation). So I don’t see
    section 22’s mandate that the court issue a “report in writing to the
    Governor” to be at odds with our court’s understanding of “judicial
    power.”
    112 The Chief Justice of this court made this point in his 1996 State
    of the Judiciary speech. He noted that for one hundred years our
    branches of government have engaged in a “collaborative effort” to
    address “issues of common concern.” Michael D. Zimmerman, Chief
    Justice of the Utah Supreme Court, The State of the Judiciary (Mar.
    1996). Section 22 of the original constitution, he stated, helped serve
    this purpose. 
    Id. That “particular
    provision . . . was removed in the
    1985 revision of the judicial article as surplusage, but the tradition
    continues of the judiciary frequently consulting and working with
    the other branches on matters affecting the administration of justice.”
    
    Id. 72 Cite
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    ¶169 Reports to the Governor, moreover, seem distinct from
    advisory opinions. Though advisory opinions are generally not
    considered to be binding authority,113 they are typically treated as de
    facto precedent.114 They usually are written like adjudicated
    decisions, using the same techniques of legal reasoning and reliance
    on precedent. They are often published in the official court reports.115
    And they sometimes follow after briefing116 or even oral
    argument.117 Without digging through state archives, it’s difficult to
    know the content of the reports submitted in accordance with section
    22. But if they’re anything like the inter-branch reports we provide
    today, they lack some of the hallmark characteristics of advisory
    opinions noted above.
    ¶170 Even if we were to conclude that these reports resemble
    advisory opinions, I question why the proper implication to draw is
    that our “judicial power” encompasses the power to issue advisory
    opinions generally, or that our power is somehow limitless. And yet
    this is what Justice Pearce suggests. He states that the language of
    section 22 “demonstrates that the framers envisioned that this court
    would have the ability to do more than decide cases between
    adverse parties.” Supra ¶ 94. I think that the far better implication to
    113 Opinion, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
    “advisory opinion” as “[a] nonbinding statement by a court of its
    interpretation of the law on a matter submitted for that purpose”).
    114   Mel A. Topf, State Supreme Court Advisory Opinions as
    Illegitimate Judicial Review, 2001 L. REV. MICH. ST. UNIV.-DET. C. L. 101,
    129–30 (“Like that which looks like a duck, walks like a duck and
    quacks like a duck, advisory opinions have looked, behaved and
    sounded like adjudicated decisions, and they have, not
    unreasonably, been perceived and employed, as such.”).
    115See, e.g., C. Dallas Sands, Government by Judiciary—Advisory
    Opinions in Alabama, 4 ALA. L. REV. 1, 26 (1951).
    116 See, e.g., FLA. CONST. art. IV, § 1(c) (“The justices shall, subject
    to their rules of procedure, permit interested persons to be heard on
    the questions presented . . . .”).
    117See, e.g., Submission of Interrogatories on Senate Bill 93-74, 
    852 P.2d 1
    , 3 (Colo. 1993) (en banc) (noting that the court heard oral
    argument); In re Request of the Governor for an Advisory Opinion, 
    12 A.3d 1104
    , 1108 (Del. 2009) (same); Advisory Opinion to the Governor—
    1996 Amendment 5 (Everglades), 
    706 So. 2d 278
    , 281 (Fla. 1997) (same).
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    IN RE GESTATIONAL AGREEMENT
    Lee, A.C.J. concurring
    draw is that the framers envisioned that the courts would have the
    power to do exactly what section 22 permits—provide the Governor
    with a written report detailing “seeming defect[s] or omission[s] in
    the law.” Section 22, in other words, functions as a limited exception
    to the general rule.
    ¶171 Under Justice Pearce’s expansive reading of section 22, the
    courts could engage in practices that exceed the scope of Article
    VIII’s “judicial power.” What, for instance, would stop the courts
    from engaging in legislative rulemaking?118 We could decide to
    118  Justice Pearce responds by asserting that “[t]he answer is
    simple; article V of the Utah Constitution would” prohibit the courts
    from exercising this authority. Supra ¶ 94 n.90. Justice Pearce says
    that “[p]assing legislation is a function ‘appertaining to’ the
    legislative department,” and he concludes that “we cannot legislate
    without express constitutional authorization.” Supra ¶ 94 n.90. I
    agree with this conclusion but would identify a different basis for it.
    I would say that the courts lack authority to enact rules that amount
    to legislative policymaking because this exceeds the bounds of our
    authority under article VIII. In my view, such rules are beyond the
    “judicial power,” which extends to the authority to “issue all
    extraordinary writs,” to “adopt rules of procedure and evidence,”
    and to exercise “original jurisdiction in all matters except as limited
    by th[e] constitution or by statute,” and to exercise “appellate
    jurisdiction as provided by statute.” UTAH CONST. art. VIII, §§ 1, 3, 4
    & 5.
    Justice Pearce agrees with this conclusion but seeks to root it in
    the language of article V. But even Justice Pearce’s approach
    highlights the constitutional difficulty with the notion of the judicial
    power to issue advisory opinions. The issuance of such an opinion
    (in the absence of adversary parties) is the functional equivalent of
    legislation. When a court issues an “opinion” that does not resolve
    an adversary dispute it is announcing a controlling principle of law
    in the abstract. And that is the essence of legislation. It should not
    matter, moreover, whether the form of that legislation is in a
    promulgated rule or in an advisory opinion. Either way it’s
    legislation. And either way it’s a violation of the principle of
    separation of powers.
    I would reach that conclusion as a matter of interpretation of the
    terms and conditions of article VIII of the Utah Constitution. But
    Justice Pearce’s approach leads to the same conclusion. If legislative
    policymaking in the form of a promulgated “rule” is an
    (Continued)
    74
    Cite as: 
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                            Lee, A.C.J. concurring
    adopt a section from the Restatement of Employment Law through
    our rulemaking power. And we could do so in the absence of a
    justiciable controversy—all because section 22 supposedly implies
    that the courts have the power to do more than decide cases between
    adverse parties. Perhaps we would never do this. We might, as
    Justice Pearce suggests, decide that “there are very good reasons” to
    avoid such a practice. See supra ¶ 94 n.91. But prudential concerns
    cannot be the only barrier preventing us from engaging in legislative
    rulemaking.
    ¶172 The advisory opinion hypothetical also highlights my final
    concern with Justice Pearce’s approach. We have never defined what
    constitutes the “essential, core, or inherent” functions and powers of
    each branch. See In re Young, 
    1999 UT 6
    , ¶ 26. And I believe we must
    if we are going to use Justice Pearce’s framework to assess the
    powers of our branches of government. We could, of course, attempt
    to define the essential powers of each branch on a case-by-case basis.
    But that reintroduces the problematic circular reasoning discussed
    above. Supra ¶¶ 152-53. We cannot know whether the judiciary can
    be tasked with a particular function unless we understand the full
    scope of the executive and legislative powers. And we cannot know
    the full scope of those powers until we define all the essential
    functions and powers of those branches.
    III
    ¶173 For all of these reasons I am skeptical of the framework
    put forward by Justice Pearce. I see no reason to reach these
    questions here, and would prefer that we leave them for a future
    case in which we have adversary briefing. But I outline my concerns
    in an attempt to provide a counter-balance to the views propounded
    by Justice Pearce.
    unconstitutional attempt to “pass[] legislation,” supra ¶ 94 n.90, then
    legislative policymaking in the form of an advisory opinion is
    equally so. I see no basis in logic or in law for the conclusion that we
    lack the authority to “legislate” by promulgating a formal rule but
    could achieve the same outcome by reformulating the rule as an
    “opinion.”
    75
    

Document Info

Docket Number: Case No. 20160796

Citation Numbers: 2019 UT 40

Filed Date: 8/1/2019

Precedential Status: Precedential

Modified Date: 1/31/2020

Authorities (43)

Grand County v. Emery County , 450 Utah Adv. Rep. 21 ( 2002 )

Baker v. Carr , 82 S. Ct. 691 ( 1962 )

Gallivan v. Walker , 455 Utah Adv. Rep. 3 ( 2002 )

State v. Stromquist , 1981 Utah LEXIS 926 ( 1981 )

Jenkins v. Swan , 1983 Utah LEXIS 1204 ( 1983 )

Department of Transportation v. Association of American ... , 135 S. Ct. 1225 ( 2015 )

Obergefell v. Hodges , 135 S. Ct. 2584 ( 2015 )

Ex Parte Duncan N. Hennen , 10 L. Ed. 138 ( 1839 )

Marye v. Parsons , 5 S. Ct. 932 ( 1885 )

Deposit Guaranty National Bank v. Roper , 100 S. Ct. 1166 ( 1980 )

United States v. Duell , 19 S. Ct. 286 ( 1899 )

University of Utah v. Industrial Commission , 64 Utah 273 ( 1924 )

Citizen's Club v. Welling, Secy. of State , 83 Utah 81 ( 1933 )

Timpanogos Planning & Water Management Agency v. Central ... , 1984 Utah LEXIS 939 ( 1984 )

State v. Miller , 611 Utah Adv. Rep. 25 ( 2008 )

State v. Lara , 538 Utah Adv. Rep. 34 ( 2005 )

Opinion of the Court , 62 N.H. 704 ( 1883 )

Marion Energy, Inc. v. KFJ Ranch Partnership , 2011 Utah LEXIS 102 ( 2011 )

State v. Briggs , 619 Utah Adv. Rep. 5 ( 2008 )

Brown v. Cox , 830 Utah Adv. Rep. 12 ( 2017 )

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