In re Gestational Agreement ( 2019 )

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)
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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
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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)).
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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.
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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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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.
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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)).
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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).
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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).
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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.”).
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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.
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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.
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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.
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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).
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¶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)
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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).
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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).
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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
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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
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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.
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¶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
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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)
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(“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
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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,
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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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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.
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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.
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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)
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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.
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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.
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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
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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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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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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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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.
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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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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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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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¶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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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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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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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)
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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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¶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.
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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
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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.
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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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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)
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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.”
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