Gregory v. Shurtleff

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 18IN THE
SUPREME COURT OF THE STATE OF UTAH
TOM GREGORY, et al.,
Plaintiffs and Appellants,
v.
MARK SHURTLEFF, et al.,
Defendants and Appellees.
____________
Nos. 20110277, 20110473
Filed March 19, 2013
Third District, Salt Lake
The Honorable L. A. Dever
No. 080908814
____________
Attorneys:
David R. Irvine, Janet I. Jenson, Alan L. Smith,
Salt Lake City, for appellants
John E. Swallow, Att’y Gen., Brent A. Burnett, Asst. Att’y Gen.,
Salt Lake City, for appellees
John L. Fellows, Robert H. Rees, Eric N. Weeks, Peter Asplund,
Salt Lake City, for amicus curiae
____________
JUSTICE DURHAM authored the majority opinion in which
JUSTICE PARRISH and JUSTICE NEHRING joined.
JUSTICE LEE filed a concurring, dissenting opinion in which
CHIEF JUSTICE DURRANT joined.
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 Appellants brought suit to enjoin the enforcement of a law,
claiming that the law violated the state constitution in four respects.
The district court dismissed the first two claims and rejected the
second two claims on summary judgment. On appeal, we consider
whether Appellants had standing to bring these claims in the first
place. We hold that, although they lacked the personal injury re-
quired for traditional standing, Appellants had public-interest stand-
ing to bring the first two claims. We also hold that they did not have
standing to bring the second two claims under either the traditional
or the public-interest doctrine of standing, and we accordingly va-
GREGORY v. SHURTLEFF
Opinion of the Court
cate the grant of summary judgment on those claims and remand to
the district court for dismissal. Finally, we hold that although Appel-
lants had standing to bring the first two claims, the district court
properly dismissed the claims under Utah Rules of Civil Procedure,
rule 12(b)(6).
BACKGROUND
¶2 In March 2008, the legislature enacted Senate Bill 2 (the
Bill). The Bill contained some fourteen items relating to education,
establishing new programs and amending existing programs; it also
contained funding provisions for some programs.
¶3 Appellants are a group of current and former legislators,
other elected and unelected government officials, and self-described
“good citizens.” They include current and former members of the
Utah State Board of Education (the Board). However, they appear in
their individual capacities, and the Board itself is not a party to this
litigation. In May 2008, Appellants filed suit in district court against
the State’s Attorney General, its Treasurer, and the Executive Direc-
tor of the Department of Human Resources (collectively, Appellees),
seeking a declaration that the Bill was unconstitutional and an in-
junction against its implementation, as well as an award of costs and
fees.
¶4 Appellants claimed the Bill was unconstitutional in four
respects. The first two claims fall under Article VI, Section 22 of the
Utah Constitution, which provides that “no bill shall be passed con-
taining more than one subject, which shall be clearly expressed in its
title.” (Emphasis added.) Appellants argue that the Bill as a whole
violates this provision in two respects: first, they argue that it con-
tained “more than one subject”; second, that its subject was not
“clearly expressed in its title” (collectively, the Article VI Claims).
The second two claims fall under Article X, Section 3 of the Utah
Constitution, which provides that “[t]he general control and supervi-
sion of the public education system shall be vested in a State Board
of Education.” Appellants argue that two items of the Bill violate this
provision: first, the item that delegates the administration of the
Teacher Salary Supplement Program to the Department of Human
Resources; second, the item that delegates textbook approval to
private entities (collectively, the Article X Claims).
¶5 Appellees moved to dismiss the Article VI Claims pursuant
to rule 12(b)(6) of the Utah Rules of Civil Procedure. They subse-
quently moved to dismiss the Article X Claims for lack of standing
and moved in the alternative for partial summary judgment on those
2
Cite as: 2013 UT 18Opinion of the Court
claims. The district court granted Appellees’ motion to dismiss the
Article VI Claims for failure to state a claim, and later granted the
State’s motion for summary judgment on the Article X Claims. It did
not rule on the alternative motion to dismiss those claims for lack of
standing.
¶6 Appellants timely appealed.1 We permitted the Office of
Legislative Research and General Counsel of the Utah Legislature to
appear as amicus curiae.2 At oral argument, we asked the parties to
discuss whether Appellants had standing to bring any of their
claims. We then ordered supplemental briefing on the standing
question in regard to the Article X Claims.
¶7 We have jurisdiction under Utah Code section 78A-3-
102(3)(j).
STANDARD OF REVIEW
¶8 “We review the grant of a motion to dismiss for correct-
ness, granting no deference to the decision of the district court.” State
v. Apotex Corp., 2012 UT 36, ¶ 16, 282 P.3d 66 (internal quotation
marks omitted). Further, “[o]n appeal from a motion to dismiss, we
review the facts only as they are alleged in the complaint. We accept
the factual allegations as true and draw all reasonable inferences
from those facts in a light most favorable to the plaintiff.” Id. ¶ 3
(internal quotation marks omitted).
ANALYSIS
¶9 Since standing is a jurisdictional requirement, we first must
determine whether Appellants have standing to bring any of their
claims. Unlike in the federal system, our law recognizes that appro-
priate plaintiffs without individualized injury may nevertheless
possess standing to bring certain claims treating issues of great pub-
lic importance. We determine that the issues underlying the Article
VI Claims rise to this level and that Appellants are appropriate par-
ties to bring these claims; Appellants therefore have standing to raise
1
Two separate appeals were taken to this court: No. 20110277,
appealing from the dismissal of the Article VI Claims, and No.
20110473, appealing from the grant of summary judgment on the
Article X Claims. The appeals were consolidated for the purposes of
argument; we hereby fully consolidate them and dispose of both
appeals with this opinion.
2
Our order permitting the amicus brief specified that this court
“will not assume any particular scope of representation vis-à-vis the
members of the Legislature.”
3
GREGORY v. SHURTLEFF
Opinion of the Court
the Article VI Claims. The issues underlying the Article X claims,
however, do not rise to this level, and furthermore Appellants are
not appropriately situated to bring them. Accordingly, they do not
have standing to raise the Article X claims.
¶10 On the merits of the district court’s dismissal of the Article
VI Claims, we hold that even on the facts alleged by Appellants, the
Bill does not violate either the single-subject or clear-title rules of
Article VI, Section 22. Accordingly, the dismissal is affirmed.
I. STANDING
¶11 “[I]n Utah, as in the federal system, standing is a jurisdic-
tional requirement.” Brown v. Div. of Water Rights of the Dep’t of Natu-
ral Res., 2010 UT 14, ¶ 12, 228 P.3d 747.3 Furthermore, “[s]tanding is
an issue that a court can raise sua sponte at any time.” State v. Tuttle,
780 P.2d 1203, 1207 (Utah 1989).
A. Utah Recognizes Public-Interest Standing in Matters of Great Con-
stitutional or Public Importance
¶12 “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 ‘controver-
sies,’ since no similar requirement exists in the Utah Constitution.”
Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983).4 While it is “the
3
In Brown, we considered whether property owners had standing
to seek an injunction preventing their neighbor from constructing a
bridge over a creek near the border between their properties. 2010
UT 14, ¶ 1. “[W]e conclude[d] that the Browns’ complaint satisfie[d]
our traditional test for standing . . . .” Id. (emphasis added). The
dispute in Brown was patently not a candidate for public-interest
standing, and indeed Brown does not discuss the alternative, public-
interest test for standing. While “in Utah, as in the federal system
standing is a jurisdictional requirement,” id. ¶ 12, the contours of our
requirements for standing differ from those in the federal system.
Our jurisdictional requirement is satisfied by either the traditional
test or the public-interest test.
4
While the judicial power of the state of Utah is not restricted, as
is the federal judicial power, by the language of Article III of the
United States Constitution, our power is, of course, not unlimited.
We have observed that “the Utah Constitution . . . mandates certain
standing requirements, which emanate from the principle of
separation of powers.” Brown, 2010 UT 14, ¶ 12. But our standing
requirements, based as they are on the law and constitution of our
state, are not identical to those of the federal system. Cf. Lansing Schs.
(continued...)
4
Cite as: 2013 UT 18Opinion of the Court
usual rule that one must be personally adversely affected before he
has standing to prosecute an action. . . . it is also true this Court may
grant standing where matters of great public interest and societal
impact are concerned.” Jenkins v. State, 585 P.2d 442, 443 (Utah
1978).5
4
(...continued)
Educ. Ass’n v. Lansing Bd. of Educ., 792 N.W.2d 686, 694–95 (Mich.
2010) (discussed infra ¶ 17).
The dissent correctly observes that the judicial power of this court
is limited by the principle of separation of powers. Infra ¶ 69. Indeed,
that principle is enshrined in the state constitution. “The powers of
the government of the State of Utah shall be divided into three
distinct departments . . . 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 . . . .” UTAH CONST.
art. V, § 1 (emphasis added). In entertaining a claim that the
Legislature has violated the constitutional restraints on its
lawmaking procedures, we are not “exercis[ing] a function” of either
of the other branches of government. As the dissent notes, infra ¶ 69
n.3, see also infra ¶ 89, separation-of-powers concerns support the
traditional standing doctrine requiring individualized injury. But in
the absence of a textual requirement of “case or controversy” akin to
those of the federal Article III, 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.” Jenkins v.
Swan, 675 P.2d at 1149. The questions, for instance, of what level of
funding is appropriate for public education, or how that funding
should be distributed across the state, are—in the absence of
constitutional or statutory claims—classic examples of “disputes
most amenable to resolution in” non-judicial fora. The question of
whether a law was passed in violation of Article VI, Section 22 is not
such a dispute.
The dissent asserts that it is not urging the wholesale adoption of
federal standing doctrine. Infra ¶ 69 n.4. Indeed, it suggests that
federal standing doctrine has become too lax, implicitly arguing that
our state standing doctrine is properly more restrictive than the
federal practice under Article III of the United States Constitution.
We are aware of no state court—even among those which have
explicitly rejected an alternative, public-interest standing
doctrine—which has taken such a position.
5
The dissent argues, infra ¶¶ 67–69, 91 that our recent opinion in
Utah Transit Authority v. Local 382 of the Amalgamated Transit Union
(continued...)
5
GREGORY v. SHURTLEFF
Opinion of the Court
¶13 “[D]espite our recognition of this Court’s power to grant
standing where matters of great public interest and societal impact
are concerned,” however, “this Court will not readily relieve a plain-
tiff of the salutory requirement of showing a real and personal inter-
est in the dispute.” Jenkins v. Swan, 675 P.2d at 1150 (internal quota-
tion marks omitted). Therefore,
we engage in a three-step inquiry in reviewing the
question of a plaintiff’s standing to sue. The first step in
the inquiry will be directed to the traditional criteria of
the plaintiff’s personal stake in the controversy. . . . If
the plaintiff does not have standing under the first step,
we will then address the question of whether there is any-
one who has a greater interest in the outcome of the case
than the plaintiff. If there is no one, and if the issue is
unlikely to be raised at all if the plaintiff is denied
standing, this Court will grant standing. . . . The Court
will deny standing when a plaintiff does not satisfy the
first requirement of the analysis and there are potential
plaintiffs with a more direct interest in the issues who
can more adequately litigate the issues. The third step
in the analysis is to decide if the issues raised by the
plaintiff are of sufficient public importance in and of them-
selves to grant him standing.
5
(...continued)
(UTA), 2012 UT 75, 289 P.3d 582, weighs in favor of the
“repudiat[ion] of the public interest approach” to standing, infra
¶ 92. It does not. UTA did not establish new law or doctrine; it
reiterated that parties seeking to avail themselves of the “public
interest” exception to mootness must make a further showing that
the dispute in question is capable of repetition yet likely to evade
review. See 2012 UT 75, ¶ 33. Since mootness is a characteristic of a
dispute between parties rather than a characteristic of the parties
themselves, an exception to the usual prohibition on considering
moot questions will hinge on the nature of the dispute. Conversely,
traditional standing (or the lack thereof) is a characteristic not of the
dispute between parties, but of the parties themselves. Therefore, the
exception this court has established to the traditional standing
requirements hinges not only on the importance of the dispute, but
also on the nature of the party seeking to make the claim. See infra
¶¶ 15, 28–29, 35.
6
Cite as: 2013 UT 18Opinion of the Court
Id. (emphases added).6
¶14 In a more recent case, we summarized this alternative basis
for standing as follows: “[T]he statutory and the traditional common
law tests are not the only avenues to gain standing; Utah law also
allows parties to gain standing if they can show that they are an
appropriate party raising issues of significant public importance . . . .”
Cedar Mountain Envtl., Inc. v. Tooele Cnty. ex rel. Tooele Cnty. Comm’n,
2009 UT 48, ¶ 8, 214 P.3d 95 (emphasis added).
¶15 In Jenkins v. Swan we framed the middle step of the “three-
step inquiry” as “the question of whether there is anyone who has
a greater interest in the outcome of the case than the plaintiff.” 675
P.2d at 1150. In Cedar Mountain, however, we modified the inquiry,
requiring a determination of whether the plaintiff is “an appropriate
party.” 2009 UT 48, ¶ 8 (emphasis added). This shift in analysis is
explained in intervening precedent. In 2006 we explained:
Under the alternative test, a petitioning party must first
establish that it is an appropriate party to raise the issue
in the dispute before the court. A party meets this bur-
den by demonstrating that it has the interest necessary
to effectively assist the court in developing and review-
ing all relevant legal and factual questions and that the
issues are unlikely to be raised if the party is denied
standing. We recognize that there is language in both
Jenkins [v. Swan] and subsequent cases suggesting that
in making this determination the court may grant
standing only to the party with the greatest interest in
the case, or in other words, the most appropriate party.
We now conclude, however, that the notion that a court
must find the most appropriate party, thereby limiting
standing under the alternative criteria to only one party
in any given case, is unnecessary and counter-produc-
tive. . . . [A] court addressing standing under the alter-
native test does not need to determine which party
6
See also Haymond v. Bonneville Billing & Collections, Inc., 2004 UT
27, ¶ 6, 89 P.3d 171 (“In matters of great public importance, we have
employed other tests [than the traditional one] to evaluate whether
a plaintiff should be allowed to pursue a lawsuit where he has
sustained no injury. Standing may be found if the matter is of great
public importance, if the plaintiff, although lacking a distinct injury
is in as good a position to challenge the alleged illegality as any other
potential plaintiff, and if the issue is unlikely to ever be raised if the
plaintiff is denied standing to sue.”).
7
GREGORY v. SHURTLEFF
Opinion of the Court
seeking to intervene is the most appropriate party in
comparison to any other potential party, but rather
needs to determine only which parties are, in fact, ap-
propriate parties to a full and fair litigation of the dis-
pute in question.
....
In addition, an appropriate party must still satisfy the
second part of the alternative test before we will grant
standing. Once a party has established that it is an ap-
propriate party to the litigation, it must also demon-
strate that the issues it seeks to raise are of sufficient
public importance in and of themselves to warrant
granting the party standing.
Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74,
¶¶ 36, 39, 148 P.3d 960 (citations omitted) (internal quotation marks
omitted).7 Cedar Mountain’s more concise statement of the test is the
applicable standard: “[P]arties [may] gain standing if they can show
that they are an appropriate party raising issues of significant public
importance . . . .” 2009 UT 48, ¶ 8. This is a two-part inquiry. Id. ¶ 15
(“[T]his test breaks down to two elements: (1) is the plaintiff an ap-
propriate party; and (2) does the dispute raise an issue of significant
public performance.” (citing Sierra Club, 2006 UT 74, ¶¶ 36–39)).8
7
This passage from Sierra Club also replaces a description of the
Jenkins v. Swan test that we enunciated in Kennecott Corp. v. Salt Lake
County, 702 P.2d 451 (Utah 1985). There, we framed the middle step
as a requirement that “no one ha[ve] a greater interest than [the
plaintiff].” Id. at 454. Sierra Club reformulated the middle step, which
both Jenkins v. Swan and Kennecott described as a requirement that
no other more appropriate potential party exist, to an examination of
whether the plaintiff at bar is or is not appropriate. Compare Sierra
Club, 2006 UT 74, ¶ 36 (“[T]he notion that a court must find the most
appropriate party, thereby limiting standing under the alternative
criteria to only one party in any given case, is unnecessary and
counter-productive.”), with Kennecott, 702 P.2d at 454 (“If the plaintiff
has no standing under the [traditional test], then he may have
standing if no one has a greater interest than he . . . .”), and Jenkins v.
Swan, 675 P.2d at 1150 (“If the plaintiff does not have standing under
the [traditional test], we will then address the question of whether
there is anyone who has a greater interest in the outcome of the case
than the plaintiff.”).
8
See also 1A C.J.S. Actions § 107 (2005) (“When the issues sought
(continued...)
8
Cite as: 2013 UT 18Opinion of the Court
¶16 Our public-interest standing doctrine is not unusual in
state jurisprudence. Numerous other states, mindful that their con-
stitutions do not impose the same restrictions on their judicial power
that the federal constitution imposes on federal courts,9 have simi
8
(...continued)
to be litigated are of great importance and interest to the public, they
may, in some jurisdictions, be resolved in a form of action that
involves no rights or obligations peculiar to the named parties. The
doctrine of great public interest or importance must, however, be
applied with caution in expanding or relaxing the definition of
standing. Its exercise must be a matter where strict standards are
applied to avoid the temptation to apply a judge’s own beliefs and
philosophies to a determination of what questions are of great public
importance. Standing may be found under a public interest standing
test if the matter is of great public importance, if the plaintiff,
although lacking a distinct injury is in as good a position to
challenge the alleged illegality as any other potential plaintiff, and
if the issue is unlikely to ever be raised if the plaintiff is denied
standing to sue.”(footnotes omitted)).
9
The dissent argues that “the traditional standing requirement is
rooted in the constitution,” infra ¶ 72, and supports this argument by
reference to language in Article VIII of the Utah constitution, infra
¶ 73. That language “confers on our courts the ‘judicial power,’ and
. . . speaks of our authority to issue ‘writs’ and to decide ‘cases.’”
Infra ¶ 73 (quoting UTAH CONST. art. VIII, §§ 1, 3, 5). The dissent
further argues that any alternative to traditional standing
requirements would require “repeal or amend[ment of] the terms of
Article VIII.” Infra ¶ 72. But the dissent gives no suggestion of what
the required constitutional text would say, nor does it cite an
example from any other state constitution of an affirmative
recognition of public-interest standing. In contrast, other state courts
which—unlike Utah’s—issue advisory opinions do so based on
explicit constitutional authorization. See, e.g., MASS. CONST. pt. 2, ch.
3, art. 2 (authorizing the issuance of advisory opinions “upon
important questions of law, and upon solemn occasions”); see also In
re Advisory Opinion, 335 S.E.2d 890, 891 (N.C. 1985) (declining to
issue an advisory opinion on the ground that “[t]he North Carolina
Constitution does not authorize the Supreme Court” to do so). At the
state level, the recognition of an alternative form of standing is
simply not the type of jurisprudential development which is
predicated on explicit constitutional authorization. The dissent
suggests that this court requires explicit textual authorization to
articulate the scope of the judicial power to assess standing. We
(continued...)
9
GREGORY v. SHURTLEFF
Opinion of the Court
larly established (under various names) a doctrine of public-interest
standing.10 See, e.g., Trustees for Alaska v. State, 736 P.2d 324, 329
(Alaska 1987) (“[T]axpayer-citizen status is a sufficient basis on
which to challenge allegedly illegal government conduct on matters
of significant public concern.”); Save the Plastic Bag Coal. v. City of
Manhattan Beach, 254 P.3d 1005, 1011–12 (Cal. 2011) (“[W]here the
question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the petitioner need not
show that he has any legal or special interest in the result, since it is
sufficient that he is interested as a citizen in having the laws exe-
cuted and the duty in question enforced. . . . We refer to this variety
of standing as public interest standing.” (alteration omitted) (inter-
nal quotation marks omitted)); State ex rel. Cittadine v. Ind. Dep’t of
Transp., 790 N.E.2d 978, 980 (Ind. 2003) (“Indiana cases recognize
certain situations in which public rather than private rights are at
issue and hold that the usual standards for establishing standing
need not be met. . . . [W]hen a case involves enforcement of a public
rather than a private right the plaintiff need not have a special inter-
9
(...continued)
reject this view.
The dissent asserts that “the conclusion (of unbridled, common-
law power) does not at all follow from the premise (the lack of a
‘case or controversy’ clause).” Infra ¶ 105. First, we disagree with the
characterization of our public-interest standing doctrine as
“unbridled.” Second, we note that the dissent does not suggest what
does follow from our constitution’s lack of a “case or controversy”
requirement. Again, the dissent’s only suggested difference between
state and federal standing doctrine is that the latter has become too
lax. See supra ¶12 n.4; infra ¶ 69. We disagree, and align with the
courts of numerous other states in determining that the lack of a
“case or controversy” requirement in our state constitution permits
the development of alternative, public-interest standing doctrines.
10
See 59 AM. JUR. 2D Parties § 30 (2d ed. 2012) (“Unlike the federal
courts, state courts are not bound by constitutional strictures on
standing as with state courts standing is a self-imposed rule of
restraint. State courts need not become enmeshed in the federal
complexities and technicalities involving standing and are free to
reject procedural frustrations in favor of just and expeditious
determination on the ultimate merits. Standing in the state courts is
a judge-made doctrine and is used to refuse to determine the merits
of a legal controversy irrespective of its correctness where the party
advancing it is not properly situated to prosecute the action.”
(footnotes omitted)).
10
Cite as: 2013 UT 18Opinion of the Court
est in the matter nor be a public official.” (internal quotation marks
omitted)); Godfrey v. State, 752 N.W.2d 413, 425 (Iowa 2008) (“We
believe our doctrine of standing in Iowa is not so rigid that an excep-
tion to the injury requirement could not be recognized for citizens
who seek to resolve certain questions of great public importance and
interest in our system of government.”); New Energy Econ., Inc. v.
Martinez, 247 P.3d 286, 290 (N.M. 2011) (“We do not need to decide
whether Petitioners have an actual beneficial interest because we
conclude that they have standing under the great public importance
doctrine. This court, in its discretion, may grant standing to private
parties to vindicate the public interest in cases presenting issues of
great public importance.” (alteration omitted) (internal quotation
marks omitted); State ex rel. Ohio Acad. of Trial Lawyers v. Sheward,
715 N.E.2d 1062, 1082 (Ohio 1999) (“This court has long taken the
position that when the issues sought to be litigated are of great im-
portance and interest to the public, they may be resolved in a form
of action that involves no rights or obligations peculiar to named
parties.”).
¶17 The case of Michigan is particularly illuminating. Recently,
the Supreme Court of that state overruled a line of cases which
“departed dramatically from Michigan’s historical approach to
standing.” Lansing Schs. Educ. Ass’n v. Lansing Bd. of Educ., 792
N.W.2d 686, 689 (Mich. 2010); see generally Kenneth Charette, Stand-
ing Alone?: The Michigan Supreme Court, the Lansing Decision, and the
Liberalization of the Standing Doctrine, 116 PENN ST. L. REV. 199 (2011).
In restoring Michigan’s traditional approach to standing, the Lansing
court explained that “[t]here is no support in either the text of the
Michigan Constitution or in Michigan jurisprudence . . . for recog-
nizing standing as a constitutional requirement or for adopting the
federal standing doctrine.” 792 N.W.2d at 693. The same is true of
Utah’s constitution and jurisprudence.11
11
Some state courts have explicitly or implicitly rejected such an
alternative standing doctrine. See, e.g., Sears v. Hull, 961 P.2d 1013,
1017-19 (Ariz. 1998); In re Sandy Pappas Senate Comm., 488 N.W.2d
795, 797 (Minn. 1992); City of Chattanooga v. Davis, 54 S.W.3d 248, 280
(Tenn. 2001) (“We are aware that some commentators have criticized
adherence to the particularized injury requirement of the standing
doctrine . . . . Indeed . . . some states have adopted a ‘public rights’
exception to private party standing. . . . However, except with regard
to the Office of the Attorney General, the courts of this state have yet
to recognize a general ‘public rights’ exception to the standing
requirement, and we decline to do so in this case.” (citations
(continued...)
11
GREGORY v. SHURTLEFF
Opinion of the Court
¶18 We reaffirm today the teaching of our precedent that “Utah
law . . . allows parties to gain standing if they can show that they are
an appropriate party raising issues of significant importance.” Cedar
Mountain, 2009 UT 48, ¶ 8.
B. Appellants Do Not Meet the Traditional Standing Criteria of Having
a “Personal Stake in the Controversy” for Any of Their Four Claims
¶19 As explained above, Appellees below moved to dismiss the
Article X Claims for lack of standing. The district court, however,
granted Appellees’ alternative motion for summary judgment on
those claims without ever ruling on the question of standing. Appel-
lees had earlier moved to dismiss the Article VI Claims for failure to
state a claim pursuant to rule 12(b)(6) of the Utah Rules of Civil
Procedure. Although that rule may be used to dismiss a claim for
lack of standing, see Anderson v. Dean Witter Reynolds, Inc., 920 P.2d
575, 577 (Utah Ct. App. 1996), Appellees invoked it only to assert
that Appellants had failed to state a cause of action. The district
court therefore never considered whether Appellants had standing
with respect to any of their claims.
¶20 As mentioned above, however, this court may raise stand-
ing “sua sponte at any time.” Tuttle, 780 P.2d at 1207. We did so at
oral argument, and then requested supplemental briefing on stand-
ing with respect to the Article X Claims. The arguments submitted
by the parties in their supplemental briefs, however, are applicable
to all four claims. For the following reasons, we determine that Ap-
pellants do not have traditional standing to raise any of their claims.
¶21 Appellants argue that they have traditional standing to
bring the Article X Claims for two reasons. First, they argue that the
challenged provisions of the Bill deny “plaintiffs as voters . . . their
political prerogative, implicit in Article 10, Section 3, to hold Board
members politically accountable by a meaningful exercise of the
right to vote.” This argument is not persuasive. To the extent that
one’s status as a voter in itself ever gives one a right to challenge
legislation, it can only be through some form of an alternative form
of standing, such as our public-interest doctrine. It does not consti-
11
(...continued)
omitted)). But we have not followed that course.
As noted above, supra ¶ 12 n. 4, the dissent’s position goes well
beyond that of states which reject alternative standing in its
suggestion that our doctrine of standing should, if anything, be more
restrictive than the federal one. See infra ¶ 69 n.4.
12
Cite as: 2013 UT 18Opinion of the Court
tute a “personal stake in [a] controversy.” Jenkins v. Swan, 675 P.2d
at 1150.
¶22 Appellants’ second argument is that they have traditional
standing to bring the Article X Claims because six of them are mem-
bers of the Board.12 They argue that the Salary Supplement Program
and the Textbook Approval Program “positively forbid the members
of [the Board] from exercising their Article 10, Section 3 powers
respecting those programs. . . . mak[ing] it impossible for them to
fulfill their oaths of office . . . and impair[ing] their ability, as candi-
dates, in seeking re-election to office.” This argument is similarly
unconvincing. Appellants cite no authority for the proposition that
elected officials have a vested interest in reelection sufficient to sat-
isfy the traditional test for standing. And while it is true that elected
officials who take oaths of office should take those oaths seriously,
they likewise cite no authority establishing that taking such an oath
gives them standing to challenge a law which they assert will in-
fringe on their ability to faithfully execute it. Appellants are, in es-
sence, asking that we view those who were members of the Board at
the time they brought suit as being localized attorneys general,
charged with constitutional authority to prosecute alleged violations
of their portion of the constitution. This we decline to do.
¶23 For similar reasons, we determine that Appellants lack
standing to bring those claims under the traditional doctrine of
standing. As explained below, we conclude that they do have
public-interest standing to bring the Article VI Claims. But that is
only because we determine that violations of the provisions at issue
in those claims are of sufficient public importance that they give
Appellants standing to raise such violations in their role as citizens.
¶24 In previous cases where this court has reviewed the merits
of a claim that either or both the single-subject and clear-title rules
of Article VI, Section 22 have been violated, the plaintiffs alleged a
direct and personal injury sufficient to satisfy the traditional stand-
12
At least with respect to the federal system, “the Supreme Court
[of the United States] has repeatedly held that if one party has
standing in an action, a court need not reach the issue of the
standing of other parties when it makes no difference to the merits
of the case.” Ry. Labor Execs. Ass’n v. United States, 987 F.2d 806, 810
(D.C. Cir. 1993). Because we determine that all Appellants lack
traditional standing on all four of their claims, that all Appellants
have public-interest standing on the Article VI Claims, and that all
Appellants lack public-interest standing on the Article X claims, we
need not consider whether this principle applies in Utah law.
13
GREGORY v. SHURTLEFF
Opinion of the Court
ing test. See, e.g., State v. Barlow, 153 P.2d 647, 655 (Utah 1944) (per-
sons convicted under a law criminalizing polygamous lifestyle alleg-
ing “that the statute actually contains four subjects”); Pass v. Kanell,
100 P.2d 972, 973, 975 (Utah 1940) (renter and owner of car found
liable for tort challenging statutory basis for liability as violating
both the single-subject and the clear-title rules); State v. Edwards, 95
P. 367, 368 (Utah 1908) (court reporter alleging that a law which
“affect[ed] his salary” violated the single-subject rule). While we
determine below that the Article VI Claims treat issues of public
significance and that Appellants are appropriately situated to bring
them, comparison with the cases cited above clarifies that Appel-
lants have standing to bring those claims only under the alternative
public-interest doctrine. They do not have a “personal stake in the
controversy.” Jenkins v. Swan, 675 P.2d at 1150.13
C. The Article VI Claims Rise to the Level of Great
Constitutional Importance, and Appellants are
Appropriately Situated to Raise Them
¶25 As explained above, Appellants do not meet the traditional
requirements for standing on any of their four claims. We therefore
consider whether they meet the requirements for public-interest
standing. First, we examine their Article VI Claims, and determine
that they do meet those requirements.
¶26 Article VI, Section 22 of the Utah Constitution provides:
“Except general appropriation bills and bills for the codification and
general revision of laws, no bill shall be passed containing more than
13
Appellants further assert that they possess standing as
taxpayers. Taxpayer standing may be understood as a subset of
public-interest standing. See, e.g., Olson v. Salt Lake City Sch. Dist., 724
P.2d 960, 962 & 962 n.1 (Utah 1986) (finding taxpayer standing to
challenge disbursement of monies in a reserve fund by “applying the
general principles enunciated in,” inter alia, Jenkins v. Swan and
Kennecott); see also Brummitt v. Ogden Waterworks Co., 93 P. 828, 831
(Utah 1908) (“To the extent that the water rates are excessive his
taxes are increased, and the mere fact that it increases in like
proportion the taxes of all other taxpayers does not deprive him of
the right to maintain an action to arrest the waste of public funds.”).
That doctrine is more appropriate, however, for claims with a direct
relation to the expenditure of monies, typically at the local level.
While the programs treated by the Bill, as with everything
government does, cost taxpayer money, here Appellants’ claims are
properly analyzed not as taxpayer claims but as claims brought in
the “public interest” in a more general sense.
14
Cite as: 2013 UT 18Opinion of the Court
one subject, which shall be clearly expressed in its title.” These pro-
visions, we have observed, “reflect[] an intent to limit legislative
power and prevent special interest abuse” and are “clearly moti-
vated by a wariness of unlimited legislative power.” Laney v.
Fairview City, 2002 UT 79, ¶ 34, 57 P.3d 1007.
¶27 The restrictions placed on legislative activity by Article VI,
Section 22 of the Utah Constitution are part of the fundamental
structure of legislative power articulated in our constitution. They
are accordingly of sufficient importance and general interest that
claims of their violation may be brought even by plaintiffs who lack
standing under the traditional criteria.14 Not every constitutional
provision, to be sure, is of such importance that a claim of its viola-
tion will necessarily rise to the level of “significant public impor-
14
In support of its argument that Utah’s “judicial ancestry”
includes a rule that “reserve[es] ’public’ claims for public officials
and allow[s] private suits only for special, individualized injuries,”
infra ¶¶ 82–83, the dissent cites Crockett v. Board of Education, 199 P.
158, 159–61 (Utah 1921). In that case, this court held that a taxpayer
had standing to seek a writ to compel statutorily mandated financial
disclosure from a governmental agency where the statute “was
designed for the benefit and interests of the citizen taxpayers so that
they [could] be informed.” Id. at 159; see infra ¶ 83. Similarly, we
have previously determined that the restrictions imposed on the
legislative process by Article VI, Section 22 were designed for the
public interest and benefit—specifically, to prevent private interest
capture by requiring legislation to be transparently titled and narrow
in scope. See supra ¶ 26; Laney, 2002 UT 79, ¶ 34. Where in Crockett
we inferred standing from legislative design, here we infer it from
constitutional design. Crockett does not undermine our analysis, but
rather supports it.
The dissent references a second case in tandem with Crockett. In
Startup v. Harmon, 203 P. 637 (Utah 1921), this court held that a
taxpayer lacked standing to seek a writ compelling a county to
disburse funds to widowed mothers, even where such disbursement
was statutorily required. Id. at 641. The instant case is, in our view,
much closer to Crockett than to Startup. Indeed, from a separation-of-
powers perspective, see supra ¶ 12 n.4, if—as in Crockett—taxpayers
have standing to compel the publication of statutorily required
audits, recognition of standing is even more appropriate where
parties request only that the courts consider whether a given law
was passed in accordance with the constitution, since the
determination of that question does not require this court to instruct
another branch of government to do anything other than obey the
constitutional limits on that other branch’s power.
15
GREGORY v. SHURTLEFF
Opinion of the Court
tance” required for public-interest standing under the formulation
of Cedar Mountain, 2009 UT 48, ¶ 8. Our discussion below reveals, for
instance, that delegations of particular functions to specific executive
agencies may not rise to that level. But today we hold that the single-
subject and clear-title rules of Article VI, Section 22 do.
¶28 Under Cedar Mountain, the importance of the issue by itself
is not enough to give parties public-interest standing. One must also
be “an appropriate party.” Id.; see also id. ¶ 15 (emphasizing that
“this test breaks down to two elements”). “[A]n appropriate party
. . . . has the interest necessary to effectively assist the court in devel-
oping and reviewing all relevant legal and factual questions . . . .”
Sierra Club, 2006 UT 74, ¶ 36 (internal quotation marks omitted). To
demonstrate that it is an “appropriate party,” a plaintiff must further
show that “the issues are unlikely to be raised if the party is denied
standing.” Id. (internal quotation marks omitted).
¶29 First, Appellants are “appropriate parties” with “the inter-
est necessary to effectively assist the court in developing and re-
viewing all relevant legal and factual questions” with respect to the
Article VI Claims. The “appropriateness” of a party under the
public-interest standing doctrine is a question of competency. In the
Sierra Club case, we determined that the Club “would have standing
under the alternative [public-interest] test” due to its policy concerns
and status as an “entity focused on protecting the environment.”15
Id. ¶ 42. The coalition of Appellants in the instant case is not as well-
established or long-standing as the Sierra Club, but it similarly has
policy concerns and has come together to “focus[] on” the instant
constitutional challenge. Further, Appellants have shown
themselves able to “effectively assist the court” in its consideration
of the Article VI Claims. While the district court dismissed those
claims, and we affirm that dismissal, Appellants have nevertheless
done an admirable job of briefing the facts and controlling law. That
their complaint ultimately failed to state a claim does not mean that
they were not appropriate parties to bring it. While we hold today
that the Bill does not violate the clear-title and single-subject rules of
Article VI, Section 22, Appellants have caused this court to consider
15
The dissent correctly notes that in Sierra Club “the plaintiff
satisfied traditional standing requirements.” Infra ¶ 95. But whether
or not “the court . . . need[ed] to opine about an alternative (public
right) standing test,” infra ¶ 95, the court did so “opine,” in the form
not of mere dicta but explicitly as an alternative holding. Sierra Club,
2006 UT 74, ¶ 35.
16
Cite as: 2013 UT 18Opinion of the Court
those rules and clarify the standards they impose for the first time
in decades, and that in itself is a considerable achievement.16
¶30 Second, Sierra Club requires that “the issues [be] unlikely
to be raised if the party is denied standing.” Id. ¶ 36 (internal
quotation marks omitted). We can certainly construct hypothetical
plaintiffs who might be seen to have traditional standing to bring at
least some of Appellant’s claims. For instance, a teacher whose
colleagues’ salaries were raised under the Teacher Salary
Supplement Program, but whose own salary was left unchanged,
might invoke direct economic interests. Similarly, we can imagine a
suit brought by a textbook publisher whose materials were rejected
pursuant to the Textbook Approval Program. But our inquiry is not
whether some hypothetical plaintiff can be imagined; it is whether
“the issues are unlikely to be raised if the party is denied [public-
interest] standing.” Id. (emphasis added) (internal quotation marks
omitted). Here, where the Board itself is silent and no other plaintiff
has emerged in the years since the Bill’s passage, we think that is
indeed unlikely.
¶31 One more feature of our prior statements on public-interest
standing deserves mention. In Sierra Club, we observed that a court’s
recognition that a party has public-interest standing analysis
16
The dissent criticizes our discussion as “post-hoc” and
“circular[].” Infra ¶¶ 107, 108. We do not feel that under the
circumstances and procedural history of this appeal this criticism is
warranted. Since standing was never ruled on below (and, indeed,
was only ever raised by Appellees as a defense to the Article X
claims, not the Article VI Claims), and was only addressed at
appellate oral argument and in requested supplemental briefing, we
have a full district-court record and appellate briefing by which to
assess Appellants’ competency and appropriateness vis-à-vis both
sets of claims.
As the dissent observes, the standard we enunciate for the public-
interest standing doctrine must be applied not only on appeal but at
trial. Infra ¶ 108 n.26. In our discussion of the doctrine, and our
differential treatment of the Article VI and Article X Claims (as well
as Appellants’ appropriateness with respect to both sets of claims),
we have provided guidance for trial courts in future cases. But a
universally applicable formulation is neither appropriate nor
available in this area. Traditional standing requirements have
themselves been the subject of much discussion and refinement in
this and other courts; so too is such refinement proper with the
alternative doctrine.
17
GREGORY v. SHURTLEFF
Opinion of the Court
requires the court to determine not only that the issues
are of a sufficient weight but also that they are not more
appropriately addressed by another branch of
government pursuant to the political process. The more
generalized the issues, the more likely they ought to be
resolved in the legislative or executive branches.
Id. ¶ 39 (emphasis added) (citation omitted). But Article VI, Section
22 places restrictions on the legislative process itself. Where the
legislature has passed a bill and the governor has signed it, we
cannot assume that either of those branches are appropriate parties
to whom to entrust the prosecution of a claim that the bill violates
the strictures of Article I, Section 22. And “more generalized” in this
context speaks not to the general nature of the interest—for that is
inherent in every issue of “sufficient weight” to justify the
recognition of public-interest standing—but rather to the
generalized nature of the issue itself.17 In other words, public-interest
standing should not be used by courts to engage in review of
nonjusticiable political questions. Here, Appellants’ claims do not
raise that type of question. Rather, they seek to enforce an explicit
and mandatory constitutional provision dealing primarily with
questions of form and process. See UTAH CONST. art. I, § 26 (“The
provisions of this Constitution are mandatory and prohibitory,
unless by express words they are declared to be otherwise.”).
¶32 We conclude that Appellants satisfy the requirements of
the public-interest standing doctrine with respect to the Article VI
Claims.18
17
The dissent argues that the Article VI Claims “implicate issues
that are among the most generalized one could imagine—involving
structural restrictions on the legislative process, which affect all
citizens in a general, undifferentiated manner.” Infra ¶ 113 n.29. We
disagree. The interest in seeing the legislature observe the
constitutional restrictions on its power is general, but the issue is not
general in the relevant sense—it is not a question of legislative policy
or executive practice. The question of the constitutionality of the
Bill’s passage is a specific question of the type which it is the special
province of the courts to decide. See supra ¶ 12 n.4.
18
We are mindful that “[t]he doctrine of great public interest or
importance must . . . be applied with caution,” and that “[i]ts
exercise must be a matter where strict standards are applied to avoid
the temptation to apply a judge’s own beliefs and philosophies to a
determination of what questions are of great public importance.” 1A
(continued...)
18
Cite as: 2013 UT 18Opinion of the Court
D. The Article X Claims do not Rise to the Same Level of Great
Constitutional Importance, and Appellants Are Not Appropriately
Situated to Raise Them
¶33 Article X, Section 3 of the Utah Constitution provides: “The
general control and supervision of the public education system shall
be vested in a State Board of Education.” Appellants claim that the
Bill violates this provision in two respects. First, they object to the
Teacher Salary Supplement Program, which delegates to the Utah
Department of Human Resources Management the duty of
administering a pilot program to provide salary enhancements to
certain science teachers in Utah public schools in order to dissuade
them from seeking private employment. Appellants claim this is an
unconstitutional delegation of an element of the “general control
and supervision of the public education system” to an executive
agency other than the one with that constitutionally specified role.
Second, they argue that another provision of the Bill, which requires
a private contractor to “evaluate and map the alignment of public
school instructional materials” to the “core curriculum,”
unconstitutionally delegates another element of that “general control
and supervision.”
¶34 As explained above, Appellants do not have standing to
bring the Article X Claims under “the traditional criteria of [having
a] personal stake in the controversy.” Jenkins v. Swan, 675 P.2d at
1150. For the following reasons, we determine that they also lack
standing under the alternative public-interest standing doctrine. As
articulated in Cedar Mountain, that doctrine provides that “parties
[may] gain standing if they can show that they are an appropriate
party raising issues of significant public importance.” 2009 UT 48,
¶ 8. “[A]n appropriate party . . . . has the interest necessary to
effectively assist the court in developing and reviewing all relevant
18
(...continued)
C.J.S. Actions § 107 (2005). But in holding today that alleged
violations of the requirements of Article VI, Section 22 are “questions
. . . of great public importance,” we do not rely on our own beliefs,
but rather on the text and structure of our constitution. This court
has previously determined that the requirements of Section 22
express the intent of the people “to limit legislative power and
prevent special interest abuse,” and that they are “clearly motivated
by a wariness of unlimited legislative power.” Laney, 2002 UT 79,
¶ 34; see also Pence v. State, 652 N.E.2d 486, 489 (Dickson, J.,
dissenting) (arguing that public-interest standing is appropriately
recognized on alleged violations of a state’s single-subject rule).
19
GREGORY v. SHURTLEFF
Opinion of the Court
legal and factual questions . . . .” Sierra Club, 2006 UT 74, ¶ 36
(internal quotation marks omitted).
¶35 Appellants fail to satisfy either element of the public-
interest standing test with respect to their Article X Claims. First,
while we have explained above that Appellants are “appropriate
part[ies]” to raise the Article VI Claims, they are not as well situated
to raise the Article X Claims. While the restrictions on the legislative
process imposed by Article I, Section 22 give every citizen of Utah
an interest in seeing them obeyed, the delegation in Article X,
Section 3 of “general control and supervision of the public education
system” to the Board does not create such a general interest. Further,
Appellants below and in their briefs and argument on appeal have
not proved themselves able to “assist the court in developing and
reviewing all relevant legal and factual questions.” Id. ¶ 36 The
crucial question of how we are to understand the scope of “general
control and supervision of the public education system,” and the
related question of what the historical practice and traditional core
functions of the Board have been, were never sufficiently framed
and answered. This played a role in the district court’s grant of
summary judgment in favor of Appellees on the Article X Claims.
¶36 In addition to demonstrating that they are “appropriate
part[ies],” plaintiffs must also raise issues of “sufficient public
importance” to have standing under the public-interest doctrine. Id.
¶ 40 Every constitutional provision is surely important, but not
every alleged violation of a constitutional provision will provide a
basis for public-interest standing. As discussed above, the single-
subject and clear-title rules imposed on the legislature by Article VI,
Section 22 meet that standard. They are restrictions which must be
observed every time the legislature exercises its core function of
passing laws. The provision at issue in the Article X Claims, in
contrast, is a delegation of a defined subject to a particular agency.
While we do not conclude that such questions can never be
appropriate ones in which to employ the public-interest standing
doctrine, in combination with the Appellants’ lack of
“appropriateness” to treat them, their more localized significance
renders the public-interest standing doctrine inapplicable to these
plaintiffs on these claims.
¶37 Appellants further argue that their claims are unlikely to
be brought by anyone else. As explained above, that is a necessary
part of the showing parties must make under the public-interest
standing doctrine. Id. ¶ 36. However, by itself it is not
sufficient—and we have already determined that Appellants do not
20
Cite as: 2013 UT 18Opinion of the Court
meet the other criteria for public-interest standing. Accordingly, we
vacate the entry of summary judgment against Appellants on the
Article X Claims and remand to the district court. The district court
is directed on remand to dismiss these claims for lack of standing.
II. TRIAL COURT’S DISMISSAL OF ARTICLE VI CLAIMS
¶38 Having determined that Appellants, although they lack
standing under “the traditional criteria of [having a] personal stake
in the controversy,” Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983),
do have standing to bring the Article VI Claims under the alternative
standard, we review the district court’s grant of summary judgment
on those claims. Again, Appellants claim that the Bill contains “more
than one subject,” and that its contents are not “clearly expressed in
its title”; therefore, they argue, it violates Article VI, Section 22 in
two respects. We determine that Appellants have failed to state a
claim on either count.
A. The Complaint did not State a Violation of the Single-Subject Rule
¶39 Again, Article VI, Section 22 provides that “no bill shall be
passed containing more than one subject, which shall be clearly
expressed in its title.” Appellants argue that the Bill treats too many
separate aspects of the public education system to pass muster
under the single-subject rule. In their complaint, Appellants
supported this claim by extensive reference to the legislative history
of the items contained in the Bill. They point out that, when
introduced as separate items, some had failed on a floor vote, some
passed in one chamber but were held in committee in the other, and
some were never submitted for even committee consideration as
individual items. They further assert that popular bills were “used
as hostages to extort or compel enactment of the less popular bills.”
¶40 Almost a century ago, this court opined that while the
single-subject rule
is mandatory and binding alike upon the courts and the
Legislature, yet it should be liberally construed in favor
of upholding a law, and should be so applied as to
effectuate its purpose in preventing the combination of
incongruous subjects neither of which could be passed
when standing alone. A too strict application of the
provision might, however, result in hampering
wholesome legislation upon any comprehensive subject
rather than in preventing evils.
21
GREGORY v. SHURTLEFF
Opinion of the Court
Salt Lake City v. Wilson, 148 P. 1104, 1109 (Utah 1915). See also
McGuire v. Univ. of Utah Med. Ctr., 603 P.2d 786, 789 (Utah 1979)
(citing similar language from State ex rel. Edler v. Edwards, 95 P. 367,
368 (Utah 1908) as controlling authority). Furthermore, while bills
must address a single subject, “’[t]here is no constitutional
restriction as to the scope or magnitude of the single subject of a
legislative act.’” Martineau v. Crabbe, 150 P. 301, 304 (Utah 1915)
(emphasis added) (quoting the North Dakota Supreme Court’s
interpretation of their constitution’s single-subject rule in State v.
Morgan, 48 N.W. 314, 317 (N.D. 1891)). “A liberal view should be
taken of both the act and the constitutional provisions so as not to
hamper the law making power, but to permit the adoption of
comprehensive measures covering a whole subject.” Kent Club v.
Toronto, 305 P.2d 870, 873 (Utah 1957)(discussing both the single-
subject and clear-title rules).
¶41 Other state courts have given a similar “liberal[]
constru[ction]” to their constitutions’ single-subject rules.19 See, e.g.,
Legislature v. Eu, 816 P.2d 1309, 1321 (Cal. 1991) (“[T]he single-
subject provision does not require that each of the provisions of a
measure effectively interlock in a functional relationship. It is
enough that the various provisions are reasonably related to a
common theme or purpose.” (citation omitted)); Wirtz v. Quinn, 953
N.E.2d 899, 905 (Ill. 2011) (“In determining whether a particular
enactment violates the single subject rule, we construe the word
subject liberally in favor of upholding the legislation. . . . However
. . . the single subject requirement may not be circumvented by
selecting a topic so broad that the rule is evaded as a meaningful
constitutional check on the legislature’s actions.” (internal quotation
marks omitted)); Dague v. Piper Aircraft Corp., 418 N.E.2d 207, 214
(Ind. 1981) (“One basic principle of our review is that, in considering
the validity of an act under this constitutional provision, a very
liberal interpretation is to be applied, with all doubts resolved in
favor of the legislation’s validity.”); see also Comm. for a Healthy
19
The vast majority of state constitutions contain such provisions.
See Millard H. Ruud, “No Law Shall Embrace More Than One Subject,”
42 MINN. L. REV. 389, 389 (1958) (“A one-subject rule for laws has
found its way, in one form or another, into the constitutions of forty-
one of our states.”); see also Brannon P. Denning & Brooks R. Smith,
Uneasy Riders: The Case for a Truth-in-Legislation Amendment, 1999
UTAH L. REV. 957, 963, 1005–23 (updating the count to forty-three
and providing an appendix listing all state constitutions with single-
subject and/or clear-title rules, with their exact wording and date of
adoption).
22
Cite as: 2013 UT 18Opinion of the Court
Future, Inc. v. Carnahan, 201 S.W.3d 503, 511 (Mo. 2006) (“When
reviewing a single subject challenge to an initiative petition, this
Court must liberally and non-restrictively construe the petition in
such a way that the provisions connected with or incident to the
central purpose of the proposal are harmonized and not treated as
separate subjects.”).
¶42 Examined on its face,20 under this liberal standard the Bill
does not violate the single-subject rule. All its provisions deal with
public education. With one very minor exception, all its enactments
and amendments are confined to Title 53A of the Utah Code.21 We
do not suggest that such confinement to one title or general subject
area will always shield a law from claims that it violates the single-
subject rule. Nor do we suggest that legislation which amends items
located in two or more titles will per se be ruled unconstitutional.
We have never established, and do not create today, a precise
formula for determining whether a challenged act “contain[s] more
than one subject.” UTAH CONST. art. VI, § 22. Such a formula may
well be impossible to craft,22 and might be undesirable even if it
were possible.
¶43 It is easy to imagine a law that all would agree violates the
single-subject rule. For instance, a bill dealing with pet licenses,
mining regulation and beekeeping could not be plausibly argued to
20
For the moment, we only consider whether the Bill facially
violates the single-subject rule. Below, we discuss and reject
Appellants’ other arguments for violation.
21
The one exception was an amendment in then-Title 63, Chapter
55B, a table of “Repeal Dates By Title.” (That Chapter has since been
renumbered as Title 63I, Chapter 2.)
22
See Richard Briffault, The Item Veto in State Courts, 66 TEMP. L.
REV. 1171, 1177–78 (1993) (“The notion of a subject is inherently
incapable of precise definition. . . . Lacking a clear definition of
‘single-subject’ and reluctant to intervene in the internal workings of
the legislative process, courts have generally held that the single-
subject rule is to be given a ‘liberal’ interpretation and have strained
to uphold the constitutionality of most challenged measures. The
invalidation of a state law for a violation of the single-subject rule is
a rarity.” (footnote omitted)). But see Michael D. Gilbert, Single
Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803, 819 &
Fig. 1, 821 (2006) (purporting to show a dramatic rise in recent
decades in the amount of single-subject challenges nationwide and
concluding that “[i]n recent years, single subject litigation has
blossomed”).
23
GREGORY v. SHURTLEFF
Opinion of the Court
fit under any all-encompassing rubric less general than “legislation,”
or at the most specific “safety” (assuming that the pet licensing
regime had that as its purpose).23 Similarly, one can imagine items
of legislation so targeted that no plausible argument could be made
that they violate the single-subject rule. Most actual legislation, of
course, falls somewhere in between, and while the single-subject
rule is mandatory and must be policed by this court, see supra ¶ 27,
under our tradition of liberal construction a bill addressing even a
relatively large number of educational programs does not violate
that rule. Cf. Akin v. Dir. of Revenue, 934 S.W.2d 295, 302 (Mo. 1996)
(holding that a bill containing some twenty enactments and thirty-
eight reenactments in the area of education, along with various
revenue mechanisms to fund those laws, does not violate the single-
subject rule “[g]iving the measure the liberal reading required to
sustain its constitutionality . . . [because it] contains only one subject,
education.”).
¶44 In addition to their general argument that the Bill contains
too many disparate subjects, Appellants argue that it violates the
single-subject rule for two specific reasons. First, they argue that it
combines substantive law and appropriations measures,24 and that
23
The federal constitution, of course, lacks a single-subject rule,
and federal acts often take the form of a congeries of subjects no less
incongruous than the three listed above. See generally Denning &
Smith, supra ¶ 41 n.19 (arguing for the adoption of a single-subject
rule at the federal level); cf. Wash. State Legislature v. Lowry, 931 P.2d
885, 895 (Wash. 1997) (“Our [state] constitution also evidences a clear
policy that bills should pertain to single subjects and should not be
encumbered by ‘riders’ containing divergent subjects, as is the
practice in Congress . . . .”).
Some state courts appear to have set the bar for what constitutes
a violation of the single-subject rule at the level of total incongruity.
E.g., People v. Cervantes, 723 N.E.2d 265, 267 (Ill. 1999) (“[A]
legislative act violates the single subject rule when the General
Assembly includes within one bill unrelated provisions that by no
fair interpretation have any legitimate relation to one another.”
(internal quotation marks omitted)). We need not establish so liberal
a test in order to conclude that the Bill in question today does not
violate the single-subject rule.
24
In addition to individual programs enacted or amended,
including the Textbook Approval and Teacher Salary Supplement
Programs, the Bill also both provided funding for programs
(continued...)
24
Cite as: 2013 UT 18Opinion of the Court
such a combination is a per se violation of the rule. Second, they
include in their complaint a detailed legislative history of the
components of the Bill, and argue that the fact that some of these
components were rejected by the legislature as individual bills,
while others passed committee or a floor vote in one house but were
then held and combined with the rest of the Bill’s components,
demonstrates that the Bill constitutes impermissible “bundling” and
“log-rolling” in violation of the spirit of the single-subject rule.25
¶45 Appellants urge us to adopt what they represent as the
rule of Washington State Legislature v. State, 985 P.2d 353 (Wash.
1999): a bright-line test holding that the combination in one bill of
substantive and appropriations measures violates the single-subject
rule. While conceding that we have never before set such a test,
Appellants argue that dicta in four of our previous opinions suggest
such a result. But it is not clear to us that Washington State Legislature
establishes any such bright-line test. Because the provision at issue
was an item “in an omnibus appropriations or operating budget
bill” that “restrict[ed] access to public assistance eligibility,” the
court held that it violated the single-subject rule and struck it on that
basis. Id. at 355, 363. The Bill before us neither “defines rights or
eligibility for services” in the sense of the provision scrutinized in
Washington State Legislature, nor is it included in a general “operating
budget bill.”26 Accordingly, we do not see this case as providing
persuasive authority that we should (1) announce a bright-line
standard that any combination of funding and substantive measures
violates the single-subject rule and then (2) find that the Bill violates
that rule and accordingly declare it unconstitutional under Article
VI, Section 22 of the Utah Constitution.
¶46 We are similarly unpersuaded by Appellants’ argument
that we have already endorsed such a bright-line standard. For
instance, Appellants cite Carter v. State Tax Commission, 96 P.2d 727,
733–34 (Utah 1939). There, we held that a specific part of a “plan of
24
(...continued)
established in the bill and adjusted funding levels for already
existing programs.
25
See Pass v. Kanell, 100 P.2d 972, 978 (Utah 1940) (identifying the
prevention of “hodge podge or ‘log rolling’ legislation” as “one, and
perhaps the primary, object of” the single-subject rule (internal
quotation marks omitted)).
26
We note that general appropriations bills are specifically
exempted from the single-subject rule. UTAH CONST. art. VI, § 22.
25
GREGORY v. SHURTLEFF
Opinion of the Court
graduating [motor vehicle registration] fees according to the
propensity of the vehicle to injure the highways” based upon “the
fuel used in the engine of the vehicles” violated the single-subject
rule. Id. at 733. Our explanation for this holding was that “[w]e have
here an obvious departure from any thought of wear and tear upon
the road”; the type of fuel used by a vehicle “bears no relationship
to the object of the legislation.” Id. In other words, Carter ruled that
a provision that bore “no relationship” to a bill’s larger purpose
violated the single-subject rule—not, as Appellants frame it, because
it was a revenue measure, but because it was incongruous with the
rest of the bill.
¶47 Among Appellants’ other citations is one to Petty v. Utah
State Board of Regents, 595 P.2d 1299 (Utah 1979). There we said “it is
important to have in mind that the purpose of the Appropriations
Act is to allocate finances, and not to affect substantive changes in
the law on other matters.” Id. at 1301. But the very next sentence
reads: “Consequently, it is our opinion that such an expression of
intent in an appropriations act should not be regarded as repealing
or superseding other existing statutory law.” Id. In Petty, the plaintiff
was a student arguing that a statement of “the intent of the
Legislature” as to the appropriate level of tuition for medical
students prevented the Board of Regents charging fees beyond that
level. Id. at 1300. In ruling that this statement of “intent” in a general
appropriations bill had no substantive effect, we did not mention the
single-subject rule. Appellants cite this case for its supposed
analogic strength, but we do not see an analogy to the claims before
us.
¶48 We are unpersuaded by these cases, and by the other cases
cited by Appellants in their urging us to establish a rule that the
combination of substantive and appropriations measures always
violates the single-subject rule. We therefore decline to adopt such
a rule. As explained above, the Bill on its face treats a single, albeit
broad, subject: education. The presence in the Bill of funding
measures directed towards education programs does not render it
unconstitutional. We are left, then, with Appellants’ remaining
argument on this point: that the legislative history of the items in the
Bill reveal that it is the product of impermissible “log-rolling,” and
that it therefore violates the single-subject rule.
¶49 In Appellants’ description, the Bill
is the sum of 14 bills, all of which started as single
subject measures. All initially were introduced,
reviewed, considered, and debated as separate, stand-
26
Cite as: 2013 UT 18Opinion of the Court
alone legislation. Two of these bills were defeated by
majority vote in the House. Two others lacked sufficient
merit to survive committee hearings. These failed bills
were revived and, through bundling . . . [,] were
allowed to ride “piggy-back” on popular legislation and
money measures to enactment at the eleventh hour of
the 2008 general session.
For three reasons, however, we conclude that these facts—even
taken at face value, as we do when reviewing the grant of a motion
to dismiss—do not state a claim that the Bill violates the single-
subject rule.
¶50 First, the text of Article VI, Section 22 speaks to the
contents and title of the Bill itself; it makes no reference to legislative
motive. We have determined that the Bill itself, in treating multiple
programs related to education, handles a “single subject”; we further
determine that an itemized list of those programs is a clear
expression of the Bill’s content, which is what the clear-title rule
requires. It is true that in Wilson we identified the “purpose” of the
single-subject rule as “preventing the combination of incongruous
subjects neither of which could be passed when standing alone.” 148
P. at 1109 (emphasis added). But in light of our tradition of liberally
construing the single-subject rule, see id., we have already concluded
that the subjects in the Bill are not incongruous in the constitutional
sense. Therefore, even taking at face value Appellants’ assertions
that portions of the Bill “could [not] be passed when standing
alone,” Wilson neither requires nor empowers us to find them
unconstitutional solely on that basis if we have not determined that
they are “incongruous.” While the prevention of “log-rolling” may
be a purpose of the single-subject rule, the text of that rule requires us
to focus on a bill’s contents, rather than conducting a review of a
law’s “backstory” as revealed in legislative history.
¶51 Second, Appellants have not identified—and we have not
independently found—any prior opinion of this court that analyzes
a single-subject claim by reference to the legislative history of the bill
at issue. Appellants cite McGuire, 603 P.2d 786, and Jensen v.
Matheson, 583 P.2d 77 (Utah 1978), for the proposition that this court
has previously examined legislative journals in its Article VI, Section
22 jurisprudence. This is true, but those cases dealt with other
provisions of the section: respectively, the clear-title rule and a
27
GREGORY v. SHURTLEFF
Opinion of the Court
voting/recordation provision.27 McGuire, 603 P.2d at 790; Jensen, 583
P.2d at 79–80. These cases do not establish the propriety of
undertaking an extensive search of legislative history in the
application of the single-subject rule, and we are not persuaded that
we should depart from an examination of the Bill on its face, at least
absent any ambiguity or other interpretative problems revealed by
such a facial examination. To do so would put us in the position of
examining the motives and strategies of the Legislature, rather than
its acts.
¶52 Finally, where a bill has not been shown to violate the
single-subject rule, separation-of-powers considerations make us
hesitate to inquire into the internal process that led to the bill’s
passage. Sometimes we are required to, as it were, “pierce the veil”
of the legislative text—for instance, when a facially neutral bill is
alleged to have some impermissible invidious motive. And
allegations of outright illegality, in the form of bribery or the like,
have their remedy elsewhere in the law. But the line between
forbidden “log-rolling” and mere “horse-trading” may be a fine one,
and we are not confident in our ability—or even our constitutional
power—to police it in the manner which Appellants ask of us.
B. The Complaint did not State a Violation of the Clear-Title Rule
¶53 The Bill was entitled “MINIMUM SCHOOL PROGRAM
BUDGET AMENDMENTS.” Under this title came a caption
identifying the session in which the Bill was submitted and its chief
sponsor and sponsor in the House. Under this caption came a
double line, then the following: “LONG TITLE[.] General
Description: This bill provides funding for the Minimum School
Program and other education programs. Highlighted Provisions:
This bill: [followed by a bullet-pointed list of short descriptions of
the various components of the bill].”28 Appellants argue that the Bill
violates the clear-title rule for two reasons. First, they argue that the
“short title” is under-inclusive and misleading. Second, they argue
that the “long title” does not cure the constitutional defect.
27
“The vote upon the final passage of all bills shall be by yeas and
nays and entered upon the respective journals of the house in which
the vote occurs.” UTAH CONST. art. VI, § 22 (emphasis added). This
provision clearly contemplates an examination of material in
addition to the final bill; the single-subject rule does not.
28
See Appendix for a representation of the entire introductory
section to the Bill, including both its “short” and “long title.”
28
Cite as: 2013 UT 18Opinion of the Court
¶54 This court considered the clear-title rule in Utah’s first year
of statehood. Ritchie v. Richards, 47 P. 670 (1896). There, we held that
a bill entitled “An act relating to and making sundry provisions
concerning elections,” id. at 671 (emphasis added), could not
constitutionally contain a provision governing the appointment of
persons to vacated positions. Id. at 674. “This section,” we
determined, “does not relate to elections, nor does it concern
elections. Therefore the title does not embrace it.” Id.
¶55 A justice of a later generation enunciated general principles
that guide our application of the clear-title rule:
[T]he title is sufficient if it is not productive of surprise
and fraud and is not calculated to mislead the
legislature or the people, but is of such character as
fairly to apprise the legislators and the public of the
subject matter of the legislation and to put anyone
having an interest in the subject on inquiry.
Thomas v. Daughters of Utah Pioneers, 197 P.2d 477, 508 (Utah 1948)
(Latimer, J., concurring). A more recent opinion saw the purpose of
the clear-title rule as ensuring that “the legislators will be advised of
the subject and purpose of the act in order that there be no
misunderstanding, omitting, nor burying or obscuring of what is
being proposed.” Jensen, 583 P.2d at 80.
¶56 Here, the bill’s “long title” informs the reader that “[t]his
bill provides funding for the Minimum School Program and other
education programs,” proceeding to give a full list of those
programs in bullet-point format. This is constitutionally
sufficient—if the “long title” can be considered part of the “title”
which the constitution says must “clearly express[]” the bill’s
“subject.” UTAH CONST. art. VI, § 22.
¶57 Appellants insist it cannot be so considered First, they
observe that Article VI, Section 22 speaks of the bill’s “title” in the
singular. Second, they argue that our case law has treated additional
or supplementary titles of laws as unnecessary surplusage. Third,
they argue that the clear-title rule is intended to benefit the public
and that the public is less likely than the legislators to notice the
presence of such additional titles.
¶58 Appellees and Amicus counter that a “long title” is an
acceptable manner of observing the constitutional clear-title rule,
and that in this case the Bill’s “long title,” as the constitution
requires, clearly expresses the Bill’s subject. We agree that the “long
title” of this Bill is its title for purposes of Article VI, Section 22 and
29
GREGORY v. SHURTLEFF
Opinion of the Court
that it clearly expresses the Bill’s subject. The Bill therefore does not
violate the clear-title rule.
¶59 First, the fact that Article VI, Section 22 speaks of a bill’s
“title” in the singular is not dispositive. The Bill before us has a
singular title. That title, it is true, is divided into a five-word header
(“MINIMUM SCHOOL PROGRAM BUDGET AMENDMENTS”)
and a longer title, which is in turn divided into a “General
Description” and a list of “Highlighted Provisions.” But the text of
Section 22 does not indicate how long or detailed a bill’s “title” must
be, or whether it may be divided into sub-parts. As we have
interpreted and applied it above, the single-subject rule permits one
Bill to treat multiple aspects of the public education system.
Accordingly, a title such as the one this Bill has is arguably the
fairest way of putting legislators and citizens on notice of what the
Bill contains.29 If the Bill’s contents are constitutional in scope—and
we have determined that they are—then an itemized description of
them is a constitutionally acceptable way to “clearly express[]” those
contents.
¶60 Second, Appellants cite Edwards, 95 P. at 369, in support of
their argument that “the use of a second title may be constitutionally
improper.” The case is inapposite. In Edwards, we determined that
certain “extraneous matter added to what constitutes the actual title
is harmless. . . . [and] wholly unnecessary, and the elimination of this
surplus matter is . . . required of us in order to preserve” an
otherwise constitutional law. Id. (emphasis added). But here we
have, if anything, the opposite situation. By itself, “MINIMUM
SCHOOL PROGRAM BUDGET AMENDMENTS” might well be
unconstitutionally under-inclusive. The “long title,” with its list of
programs contained in the Bill, removes the cloud over the Bill’s
constitutionality.30
29
General principles of separation of powers further suggest that
we ought to refrain from dictating to the Legislature the form that the
titles of its laws must take. The state constitution requires only that
titles clearly express their bills’ subjects. We are wary of imposing
further requirements.
30
Appellants also cite Marioneaux v. Cutler, 91 P. 355, 359 (Utah
1907) (“[T]he Legislature may not disregard the [clear-title rule] by
simply making the legislative intention clear in the act itself.”). But
that case upheld the challenged provision, since “a reasonable doubt
exist[ed] . . . whether the subject of the act is expressed in the title,
[and] such doubt will be resolved in favor of the act.” Id.
30
Cite as: 2013 UT 18Opinion of the Court
¶61 Third and finally, we disagree that the “long title” is of use
only to legislators. It is not written in technical or misleading
language. It puts anyone reading it, whether they be a member of
the legislature or of the general public, on notice of the Bill’s
contents. For all these reasons, we determine that the full title of the
Bill comports with the constitutional requirement that it “clearly
express[]” the subject of the Bill. UTAH CONST. art. VI, § 22.
CONCLUSION
¶62 We determine that Appellants do not have standing to
bring any of their claims under the traditional doctrine of standing.
We further determine that they lack standing to bring the Article X
Claims even under the alternative doctrine of public-interest
standing. Accordingly, we vacate the district court’s grant of
summary judgment and remand with respect to those claims,
directing the court on remand to dismiss them for lack of standing.
We further determine that Appellants do have standing to bring the
Article VI Claims under the doctrine of public-interest standing.
Since their complaint fails to state a claim for violation of either the
single-subject or clear-title rules, however, we affirm the district
court’s dismissal with respect to those claims.
APPENDIX
[The following is a representation of the entire introductory portion
of the Bill, containing both its short title and its long title]
MINIMUM SCHOOL PROGRAM BUDGET
AMENDMENTS
2008 GENERAL SESSION
STATE OF UTAH
[names of sponsoring legislators omitted]
LONG TITLE
General Description:
This bill provides funding for the Minimum School Program
and other education programs.
Highlighted Provisions:
This bill:
-- establishes the value of the weighted pupil unit at $2,577;
31
GREGORY v. SHURTLEFF
Opinion of the Court
-- establishes a ceiling for the state contribution to the
maintenance and operations portion of the Minimum School
Program for fiscal year 2008-09 of $2,497,012,086;
-- modifies provisions related to the funding of charter schools;
-- modifies requirements regarding instructional materials;
-- authorizes the use of appropriations for accelerated learning
programs for International Baccalaureate programs;
-- modifies the positions that qualify for educator salary
adjustments and increases the salary adjustments for those
positions;
-- establishes and funds the following ongoing programs:
N a pilot project using a home-based educational technology
program to develop school readiness skills of preschool
children;
N a financial and economic literacy passport to track student
mastery of certain concepts;
N the Teacher Salary Supplement Program to provide a
salary supplement to an eligible teacher;
N stipends for special educators for additional days of work;
N an optional grant program to provide an extended year for
math and science teachers through the creation of Utah
Science Technology and Research Centers;
N the High-ability Student Initiative Program to provide
resources for educators to enhance the academic growth of
high-ability students;
N the English Language Learner Family Literacy Centers
Program; and
N career and technical education online assessment;
-- makes one-time appropriations for fiscal year 2008-09 for:
N pupil transportation to and from school;
N the Beverly Taylor Sorenson Elementary Arts Learning
Program to provide grants to integrate arts teaching and
learning into selected schools; and
N classroom supplies;
-- provides a repeal date for certain pilot pograms;
-- makes nonlapsing appropriations; and
32
-- makes technical corrections.
Monies Appropriated in this Bill: [followed by nine enumerated
appropriations]
Other Special Clauses:
This bill provides an effective date.
This bill coordinates with H.B. 1 by providing superseding and
substantive amendments.
Utah Code Sections Affected: [followed by a list of sections
amended and enacted]
JUSTICE LEE, concurring in part and dissenting in part:
¶63 In the past several decades, this court’s standing
jurisprudence has strayed further and further from its traditional
mooring in the judicial power clause of the Utah Constitution. Thus,
although we have long recognized a “traditional” conception of
standing requiring individualized injuries sustaining private rights
of action, our more recent decisions have exhibited increasing
willingness to overlook that requirement under a “public interest”
exception. That exception, as reconceived by the court today,
stretches the principle of standing beyond recognition.
¶64 I respectfully dissent from the majority’s invocation—and
extension—of this “public interest” exception to the traditional
requirement of standing. Its methodology is incompatible with the
judicial power clause in Article VIII of the Utah Constitution. That
clause limits our authority to the resolution of cases that fall within
the traditional conception of the judicial power. In overriding these
constraints, the majority robs the constitutional limits on our power
of meaningful content. It does so to uphold standing for the Article
VI claimants in this case on public interest grounds, thereby
subjecting the standing inquiry to the arbitrary discretion of the
court, under a standardless “test” that is little more than a post-hoc
justification for a preferred result. Under this test, the standing
question is left to a subjective, case-by-case assessment of a majority
of the court as to whether the claims seem sufficiently “important”
to merit review.
¶65 Instead of expanding the public interest exception, I would
repudiate our prior dicta on this point and reject the exception
altogether. And I would resolve the case under a traditional
formulation of standing—one requiring an assertion of injury
sustaining a private action. That formulation, in my view, requires
dismissal of all of the claims at issue in this case, including the
Article VI claims the majority reaches on public interest grounds.
33
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
I. STANDING AS A CONSTITUTIONAL COMPONENT
OF THE JUDICIAL POWER
¶66 Standing is not a judge-made principle of judicial restraint
subject to common-law evolution over time. It is an essential
element of the constitutional provisions defining and limiting the
judicial power. Such an element requires careful definition, rooted
in an interpretation of the binding text of our constitution. We assail
the very principle of constitutionalism when we ignore that
interpretive role and opt instead to invoke and refine standardless
“exceptions” justifying (but failing to explain) our case-by-case
preferences to exercise jurisdiction in some cases but not in others.
¶67 We recently underscored these central points in the parallel
context of our mootness doctrine. In Utah Transit Authority v. Local
382 of the Amalgamated Transit Union, 2012 UT 75, 289 P.3d 582, we
repudiated a freestanding,1 discretionary “public interest” exception
to the doctrine of mootness, explaining that mootness is an essential
“element of the principles defining the scope of the ‘judicial power’
vested in the courts by the Utah Constitution,” not a “simple matter
of judicial convenience or ascetic act of discretion.” Id. ¶ 18. After
identifying the historical basis for foreclosing the use of judicial
power to issue advisory opinions, our opinion in Utah Transit
Authority chided the parties for urging our invocation of
standardless “discretion” to exercise judicial power withheld by
traditional constitutional bounds, noting:
The notion of such discretion is repugnant to the very
idea of a written constitution. That document protects
us by setting forth fundamental limitations on
government authority that cannot be crossed or
disregarded as a matter of convenience or discretion.
We accept that principle as established orthodoxy on
1
The Utah Transit Authority v. Local 382 of the Amalgamated Transit
Union opinion clarified that the so-called “public interest” exception
to our mootness doctrine is not a one-part inquiry that may be
“satisfied by showing only that a matter involved the public
interest.” 2012 UT 75, ¶ 31 n.18, 289 P.3d 582. Rather, the exception
requires a litigant to show that a matter “(1) presents an issue that
affects the public interest, (2) is likely to recur, and (3) because of the
brief time that any one litigant is affected, evades review.” Id. ¶ 32.
Because we deemed the notion of a “public interest exception” more
confusing than helpful, we repudiated that label, reinforcing our
holding that the “public interest” alone is an inadequate ground for
exercising jurisdiction over a moot case. Id. ¶ 33.
34
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
matters of individual rights such as that of free speech
or double jeopardy. But it is no less viable on matters
defining the structural scope of the powers of the
branches of government.
Id. ¶ 25 (citation omitted).
¶68 Our Utah Transit Authority opinion also clarified the
appropriate methodology for interpreting the constitutional limits
on our judicial power. While recognizing that the text of Article
VIII’s articulation of “[t]he judicial power of the state” does not
“reveal the precise scope” of our power, we emphasized “one
fundamental point”: “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. ¶ 20 (alteration in
original) (internal quotation marks omitted); see also Mellor v.
Wasatch Crest Mut. Ins., 2012 UT 24, ¶ 14, 282 P.3d 981 (“The limits
on our jurisdiction are legal rules that define the nature and extent
of the judicial power, not mere guidelines to be invoked or
discarded at our whim.”). And to give content to the text of the
constitution, we turned to the traditional understanding of the
judicial power, identifying long-established case law and
constitutional history that informed the mootness doctrine’s
limitations on the judicial power.2 Utah Transit Auth., 2012 UT 75, ¶¶
21–24.
¶69 As set forth in detail below, an inquiry in this case
following the model set out in Utah Transit Authority reveals that
standing, like mootness, places well-defined, principled limitations
2
The majority seeks to undermine the import of our Utah Transit
Authority opinion on grounds purportedly distinguishing mootness
and standing. In the majority’s view, mootness somehow concerns
only a “characteristic of a dispute between the parties,” while
standing simply respects a “characteristic . . . of the parties
themselves.” Supra ¶ 12 n.5. These are semantic distinctions without
any analytical difference. In reality, both mootness and standing
concern the interests of particular parties in a particular
dispute—such that the characteristics of both the parties and the
dispute are relevant. And because both mootness and standing are
jurisdictional doctrines defining the limits of the judicial power, our
analytical approach to both should be consistent.
35
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
on the scope of Article VIII’s grant of judicial power.3 So, although
our constitution does not limit our authority (as the federal
constitution does) to the resolution of a “case or controversy,” see
supra ¶ 12 (noting this discrepancy), the lack of such restriction is
hardly a carte blanche license to reach out to exercise any power we
deem expedient.4 The separation-of-powers limits on our authority
are too important to be subsumed into a standardless evaluation of
3
Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983) (“Inherent in the
tripartite allocation of governmental powers is the historical and
pragmatic conviction that particular disputes are most amenable to
resolution in particular forums. The requirement that a plaintiff have
a personal stake in the outcome of a dispute is intended to confine
the courts to a role consistent with the separation of powers, and to
limit the jurisdiction of the courts to those disputes which are most
efficiently and effectively resolved through the judicial process.”);
Baird v. State, 574 P.2d 713, 717 (Utah 1978) (“To invoke judicial
power to determine the validity of executive or legislative action,
claimant must show that he has sustained or is immediately in
danger of sustaining a direct injury as a result of that action. It is
insufficient to assert a general interest he shares in common with all
members of the public, viz., a generalized grievance.”).
4
In making this point, I am not suggesting that standing under
the Utah Constitution must necessarily coincide in every particular
with the federal doctrine of standing as articulated by the United
States Supreme Court. Our Article VIII is not identical to its federal
Article III counterpart, and there may well be differences in standing
implied by the differences in the two provisions as historically
understood. And the federal doctrine of standing has not always
hewed consciously to the traditional conception of the federal
judicial power. On occasion, the federal formulation of standing
would appear to have been treated as a matter for case-by-case
adjustment on grounds of pure judicial policy—grounds articulated
without appropriate reference to the text or traditional
understanding of the judicial power. See Hein v. Freedom From
Religion Found., Inc., 551 U.S. 587, 609 (2007) (refusing to apply the
Flast v. Cohen, 392 U.S. 83, 106 (1968), exception to traditional
standing rules—which allows taxpayer-standing where the
constitutional provision allegedly violated is a specific limitation on
the taxing and spending power—to encompass discretionary
executive branch expenditures and recognizing that Flast has been
confined to its facts). And where that has happened, we would
certainly be free to reach our own independent judgment as to the
appropriate limitations on our power—hopefully with reference to
the governing text and its traditional understanding.
36
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
the significance of a party’s underlying claims. If a party’s standing
turns on such an evaluation, our interpretation of the scope of our
power will not be taken seriously, and we will leave ourselves open
to the impression (if not the reality) of arbitrariness.
¶70 Thus, I cannot accept the “public interest” test invoked by
the court. I would instead interpret Article VIII of our constitution
to confine the authority of the Utah courts to hear cases filed by
private plaintiffs only where they vindicate “private rights,” as that
term was historically understood at the time of the framing of the
Utah Constitution. That standard requires dismissal of all claims in
this case for lack of standing.
¶71 In the sections that follow, I set forth the historical basis for
the standard I would adopt, show that this standard is compatible
with most all of the holdings (but not some of the dicta) from our
court on the law of standing, and explain why the citizen-plaintiffs
in this case lack standing.
II. THE TRADITIONAL CONCEPTION OF STANDING
¶72 Under the framework employed in Utah Transit Authority,
we must take seriously our role of interpreting the judicial power
clause of Article VIII. And in interpreting that clause, we must
examine the traditional understanding of the judicial power,
identifying limits on the judicial power in established case law and
in our constitutional history. If the traditional standing requirement
is rooted in the constitution, it cannot be seen as a mere salutary
invention of this court or as a matter within our power to “relieve”
a plaintiff of fulfilling. See supra ¶ 13 (as the majority suggests).5 In
5
For the same reasons, I am puzzled by the majority’s insistence
that the prescription of evolving “public interest” principles of
standing is somehow “not the type of jurisprudential development
. . . requir[ing] explicit textual authorization.” Supra ¶ 16 n.9. If the
majority means to suggest that we have some sort of common-law
authority to extend our constitutionally granted power, then I
couldn’t disagree more; any common-law authority we possess is
foreclosed by the limiting text of the constitution. State v. Walker,
2011 UT 53, ¶ 34, 267 P.3d 210 (Lee, J., concurring) (“Where the
judge’s primary lawmaking authority has been usurped by
legislative or constitutional enactments, he cannot ignore the original
meaning of the law without exceeding the bounds of his judicial
authority as a secondary interpreter and not a primary lawgiver.”).
And if, on the other hand, the court finds some sort of implicit textual
authority in the constitution, then it is incumbent on the court to
(continued...)
37
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
stead, it must be understood as a constraint on the exercise of
judicial power that we are duty-bound to follow—just as we are
with any provision of the constitution—unless and until the people
repeal or amend the terms of Article VIII. As detailed below, I would
find that the standing limits on our judicial power are indeed
constitutionally rooted. This conclusion necessarily forecloses the
majority’s approach—of announcing an evolving set of discretionary
standards endorsing claimants we deem “appropriate” or claims we
find within the “public interest.”
¶73 The starting point for this analysis, of course, is the text of
Article VIII. That provision confers on our courts the “judicial
power,” and it speaks of our authority to issue “writs” and to decide
“cases.” UTAH CONST. art. VIII, §§ 1, 3, 5. These are definite terms
with fixed content that place meaningful restrictions on the exercise
of judicial power. First, because the power we wield must be
“judicial,” we are foreclosed from making law or announcing our
views in an advisory or other non-judicial posture. See, e.g., Utah
Transit Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT
75, ¶ 23, 289 P.3d 582.6 And second, our exercise of the judicial
5
(...continued)
identify the implication it sees. Its failure to do so speaks loudly and
reinforces for me what is both explicit and implicit in the grant of
“judicial power,” which is that we are constitutionally limited to
exercise the kind of power that was traditionally, historically
afforded to the courts in the issuance of “writs” and the decision of
“cases.”
6
This point forecloses the majority’s suggestion that the only
constraint on our power (in a constitution lacking a “case or
controversy” requirement) is the separation of powers proscription
on our exercise of powers “‘appertaining to’” one of the other
branches of government. See supra ¶ 12 n.4 (quoting UTAH CONST.
art. V, § 1). That argument misses the core point. The power we
possess under the constitution is limited to that which is “judicial”
in nature. We may not act in a non-judicial manner—as by issuance
of an advisory opinion—even if doing so does not tread on the
powers of another branch of government.
That conclusion highlights the question for resolution here, which
is whether a decision on a case falling outside the scope of our
traditional doctrine of standing is an appropriate exercise of “judicial
power.” We should answer that question, as we did in Utah Transit
Authority, with reference to the historical limits on the judicial power
in our constitutional history. And if that history cuts against public
(continued...)
38
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
power 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.7
¶74 Our interpretation of Article VIII, then, must be informed
by an analysis of the traditional nature of the judicial power and of
the types of writs and cases traditionally resolved in the courts. And
in my view, the relevant history is clear. Established case law in
Utah and elsewhere has long limited the judicial power to the
resolution of suits brought by private parties in cases involving so-
called “private rights.”
¶75 Eighteenth- and nineteenth-century precedent established
important limitations on the sorts of writs and cases that could be
initiated by private parties and entertained by courts. The traditional
formulation in the case law uniformly held that suits involving
“public rights”—interests held by the public generally and not by
individuals—could not be initiated by private plaintiffs.8 Specifi
6
(...continued)
interest standing, we should reject that doctrine as ultra vires under
our constitution. For that same reason, the historical, established
understanding of the judicial power is no mere “pragmatic
conviction,” but a constitutional requirement—one rooted in the
notion of the “judicial power” that persists even “in the absence of
a textual requirement of ‘case or controversy’ akin to those of the
federal Article III.” Supra ¶ 12 n.4.
7
This, together with the extensive historical discussion below, is
the answer to the question that the majority finds lacking in my
opinion. See supra ¶ 16 n.9 (asserting that “the dissent does not
suggest what does follow from our constitution’s lack of a ‘case or
controversy’ requirement”). What follows from the text and
structure of our constitution is the conclusion that while 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.” Our state constitutional regime may thus be quite close to
that which governs our federal counterparts. Whatever the
differences, 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.
8
Ann Woolhandler & Caleb Nelson, Does History Defeat Standing
Doctrine?, 102 MICH. L. REV. 689, 694 (2004) (“The question of which
parties may properly come to court to vindicate . . . different kinds
(continued...)
39
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
cally, in actions involving criminal prosecutions, public nuisances,
and writs of mandamus, the courts held that private individuals
could not maintain actions vindicating public rights. For me, these
cases establish a key element of the doctrine of standing as a
gateway to the invocation of the judicial power: Private parties lack
standing to sue to vindicate public rights, which must be asserted by
government representatives and not by private individuals.9
A. The Criminal Law Example
¶76 Since before the founding of the Utah Constitution, it has
been widely “understood [that] the tort action [is] under private
control and the criminal action [is] under public control.” Ann
Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?,
102 MICH. L. REV. 689, 696 (2004). Early American courts uniformly
proscribed the private prosecution of criminal actions. Id. at 696-
700.10 Concerns about giving private parties control over claims
belonging to the general public drove this proscription. See Fout v.
State, 4 Tenn. 98, 98–99 (1816). Courts feared that “leaving
8
(...continued)
of legal rights is central to the issue of standing. . . . [I]t is worth
noting . . . the ubiquity of the twin ideas of public control over public
rights and private control over private rights [in early American
cases].”); see 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 . . . which are actually
controverted in the particular case before it.”); Bigelow v. Hartford
Bridge Co., 14 Conn. 565, 579 (1842) (“[T]he very object of all suits,
both at law and in equity,” is “[t]o preserve and enforce the rights of
persons, as individuals, and not as members of the community at
large.”).
9
While the analysis is rooted in tradition and history, the core
point is hardly new to this court. In Jenkins v. Swan, we concluded
that “[t]he liability of one individual to another under the law . . . is
a matter of private rights” and that “[p]rivate-rights disputes . . . lie
at the core of the historically recognized judicial power.” 675 P.2d
1145, 1149 (Utah 1983) (second and fourth alterations in original)
(internal quotation marks omitted). We should hew to that
traditional understanding in this case.
10
See 1 JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF
CRIMINAL PROCEDURE § 26, at 15 (Boston, Little, Brown, & Co., 2d ed.
1872) (“In all the States of our Union, and in the tribunals of the
United States, criminal prosecutions are carried on by a public
officer, learned in the law, and chosen for this particular purpose.”).
40
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
prosecutions to every attorney who will take a fee to prosecute”
would frustrate “[t]he designs of the constitution” and permit “the
innocent to be oppressed or vexatiously harassed” without “the
responsibility imposed by the oath of the solicitor-general[,] by his
selection for the discharge of these duties, [and] by the confidence
of the public reposed in him.” Id. at 99–100; see Markham v. Close, 2
La. 581, 587 (1831) (worrying that private prosecutions would reflect
“the promptings of envy, malice, and all uncharitableness”). Thus,
as the U.S. Supreme Court put it in 1842, “from the very nature of an
indictment, and the sentence thereon, the government alone has the
right to control the whole proceedings and execution of the sen-
tence.” United States v. Murphy, 41 U.S. (16 Pet.) 203, 209 (1842).
¶77 Early Utah criminal law followed this pattern and confirms
that actions by individuals to prosecute public wrongs are not
within the judicial power. Utah courts carefully differentiated
between the individual-specific harm typical to civil cases and the
society-level harm involved in criminal matters. See Snow v. Snow, 43
P. 620, 622 (Utah 1896) (though a private party may benefit from a
criminal contempt charge, it is imposed “to vindicate the authority
and dignity of the people, as represented in and by their judicial
tribunals”). Criminal process was appropriate for the latter, but not
for the former. As one early opinion put it, “[criminal] punishment
is not meted out as a ‘balm to hurt mind.’ Nor is there in the law
aught of malice against him who is punished. The power is
exercised by the court as the representative, in this respect, of the
people,—the ultimate sovereigns,—and in their interest and for their
good.” In re Whitmore, 35 P. 524, 528–29 (Utah Terr. 1894) (internal
quotation marks omitted). Thus, territorial criminal statutes required
“the prosecuting attorney, or other counsel for the people, [to] open
the cause, and offer the evidence in support of the indictment.”
Territory v. Catton, 16 P. 902, 908 (Utah Terr. 1888) (quoting CRIM.
CODE LAWS UTAH § 257(2), (5), (6) (1878)), rev’d on other grounds by
Calton v. Utah, 130 U.S. 83 (1889). Though courts allowed private
counsel to aid public prosecutors during trial, People v. Tidwell, 12 P.
61, 64 (Utah Terr. 1886), I can find no instance of a private party
indicting or trying a criminal suspect independent of state
involvement. This is just the first of several indications that in the era
of the founding of the Utah Constitution, the judicial power was
understood to restrict the vindication of public rights to public
officials—and to do so on the basis of a concern about the capacity
of private litigants to account for the public weal and without regard
to the importance of the issue involved.
41
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
B. Nuisance Law
¶78 This limitation was not confined to criminal prosecutions,
however. Under the law of “public nuisance,” for example, early
American courts enforced the familiar principle that “[t]he public
authorities alone can complain of nuisances, while they remain
public or general.” Seeley v. Bishop, 19 Conn. 128, 135 (1848).11 And
this rule was rooted in a broader principle: “Upon general
principles, that common interest, which belongs equally to all, and
in which the parties suing have no special or peculiar property, will
not maintain a suit.” Barr v. Stevens, 4 Ky. (1 Bibb.) 292, 293 (1808).
¶79 Again, moreover, the proscription of private prosecution
of public rights was justified by concerns about private parties’
incapacity to account for broader societal interests. Thus, common-
law commentators noted the need for “avoiding multiplicity of
suits”12 and of limiting defendants’ exposure to a single proceeding
filed by public authorities rather than allowing “every subject in the
kingdome . . . to harass the offender with separate actions.”13
¶80 Though the public nuisance rule was subject to an
exception, the exception itself only confirmed the public-/private-
rights distinction. It held that a public nuisance action could be
maintained where the nuisance resulted in “special damage” to the
plaintiff—“an injury different in kind from that of which the public
complains.”14 The law in this area was settled at the time of the
11
See also, e.g., Harrison v. Sterett, 4 H & McH. 540, 548 (Md. Prov.
Ct. 1774) (argument of counsel) (“[P]ublic wrongs being a general
injury to the community are to be redressed and punished by a
public prosecution . . . .”).
12
1 EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS
OF ENGLAND 56a (London, James & Luke G. Hansard & Sons 19th ed.
1832) (1628) (stating that “if any one man might have an action [for
public nuisance], all men might have the like”); William B. Hale,
Parties to Actions, in 15 ENCYCLOPEDIA OF PLEADING AND PRACTICE
456, 473 (William M. McKinney ed., N.Y., Edward Thompson Co.
1899) (stating that the rule “prevent[s] a multiplicity of suits”).
13
3 WILLIAM BLACKSTONE, COMMENTARIES *219.
14
Commonwealth v. Webb, 27 Va. (6 Rand.) 726, 729 (1828); see
Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518,
566 (1851) (“[A] public nuisance is also a private nuisance, where a
special and an irremediable mischief is done to an individual.”);
COKE, supra note 12, at 56a (stating that a man may have “an action
(continued...)
42
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
founding of the Utah Constitution. As William Hale put it in a
treatise penned at about the time our Utah framers established our
founding document,
[t]he interest which an individual has in common with
all other citizens or members of the state or
municipality is insufficient to authorize him to maintain
an action founded upon a public wrong affecting the
people at large in the same manner. A party cannot
vindicate the rights of others by process in his own
name, nor employ civil process to punish wrongs to the
public.
William B. Hale, Parties to Actions, in 15 ENCYCLOPEDIA OF PLEADING
AND PRACTICE 456, 472-73 (William M. McKinney ed., N.Y., Edward
Thompson Co. 1899) (footnote omitted).
¶81 Utah’s early nuisance law is identical, in that it held that
“private individuals . . . [could] not champion purely public rights.”
Lewis v. Pingree Nat’l Bank, 151 P. 558, 561 (Utah 1915). Our early
cases indicate that “[n]o doubt the rule is well established that
private persons may not invoke the aid of the courts to abate public
nuisances, unless they can show that they suffer some special or
peculiar injury or damage which is not common to the rest of the
community.” Id.; Startup v. Harmon, 203 P. 637, 640 (Utah 1921)
(same). Not only was the plaintiff required to show special injury,
but that injury was also required to be “different not merely in
degree but in kind from that suffered by the public at large.” Muir
v. Kay, 244 P. 901, 905 (Utah 1925) (internal quotation marks
omitted). If a different rule obtained, “a discharge in one case would
be no bar to another, and thus there would be no end to litigation.”
Id. This precedent thus illustrates that, at and near the founding of
the Utah Constitution, suits brought by private individuals to
redress public wrongs were not the kind of “cases” subject to the
judicial power.
C. Mandamus
¶82 Early mandamus actions in other jurisdictions conform
with this understanding. The general rule was consistent with the
practice of reserving “public” claims for public officials and
allowing private suits only for special, individualized injuries. Chief
14
(...continued)
upon a [public nuisance] case” if he has “a particular damage”
meaning “special damage, which is not common to others”); Hale,
supra note 12, at 473 (same).
43
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
Justice Lemuel Shaw articulated this principle as “[u]ndoubtedly”
the law in Massachusetts: “[A] private individual can apply for a
writ of mandamus only in a case where he has some private or
particular interest to be subserved, or some particular right to be
pursued or protected by the aid of this process, independent of that
which he holds in common with the public at large; and it is for the
public officers exclusively to apply, where public rights are to be
subserved.” In re Wellington, 33 Mass. (16 Pick.) 87, 105 (1834).
¶83 Utah’s judicial ancestry is in line with the approach
prescribed by Chief Justice Shaw and squarely supports the
limitation on our power overridden by the majority today.
Specifically, Utah’s early mandamus cases required plaintiffs to
show that they had “some peculiar interest separate and distinct
from that of the community in general.” Startup, 203 P. at 640. Only
then could the plaintiff satisfy Utah statutory law allowing
mandamus to issue for “part[ies] beneficially interested.” See
Crockett v. Bd. of Educ., 199 P. 158, 159–61 (Utah 1921). In Crockett, this
court noted that “there are no fixed rules for determining” who is a
beneficially interested party, but also confirmed that
[a]ll agree . . . that mandamus proceedings should not
be upheld on the part of an individual who, under the
guise of correcting official delinquencies, uses the writ
merely as a means of vexing and annoying public
officials when he has no special or peculiar interest, as
distinguished from that of the general community.
Id. at 160. With this in mind, the court in Crockett granted a tax-
payer’s writ to compel a school board to publish statutorily required
annual financial statements because the statute involved “was
designed for the benefit and interests of the citizen taxpayers so that
they [could] be informed as to whether or not the financial affairs of
the school district each year have been properly and lawfully
conducted on the part of the board of education.” Id. at 159–60.
¶84 In Startup, by contrast, the court rejected the standing of a
taxpayer who sought to command a county to satisfy a statutory
duty to provide funds to support widowed mothers. 203 P. at 638.
The court’s opinion in Startup analyzed the standing of a mandamus
petitioner in a manner consistent with public nuisance standing: “If
the nuisance affects him only in the same manner and to the same
extent that it affects the people of the community in general, it is an
elementary rule of practice that he would have no standing as a
plaintiff in such proceeding. If, however, he is peculiarly affected or
injured by the nuisance, then, under all the authorities, he has the
44
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
right to institute an action in his own name to abate the nuisance.”
Id. at 640.
¶85 Applying these principles, the Startup court dismissed the
petitioner’s claim for lack of standing because the petitioner was not
part of the class protected or benefited by the statute (widowed
mothers), but was instead a member of “the community in general”
who “ha[d] no greater interest than any other resident.” Id. at
640–41. Distinguishing Crockett, the court reiterated that the
petitioner in that case had “come within the class of persons . . .
specially interested in the relief applied for”—residents of a
particular school district. Id. at 641. At the same time, the court
doubted that standing would have been found in Crockett had the
taxpayer not been such a resident. Id. In such case, the Crockett
taxpayer would have been similar to the Startup petitioner—no more
than “interested as a citizen in seeing that the law was enforced.” See
id.
¶86 Seeing “no reason” in law to sustain standing by a citizen
merely interested in assuring the enforcement of the law, the court
rejected the Startup petitioner’s standing. Id. In so doing, the court
noted that “[a]ny widowed mother of the class mentioned, for
whose relief the law was enacted, would undoubtedly have the right
to apply for a writ of mandate to compel an enforcement of the law,”
and that “[a]ny attorney authorized to represent the county . . .
would have the right . . . to institute [a] proceeding.” Id. But a
“person whose relation to the case” is merely that of a citizen
seeking enforcement of the law could not be sustained without
“set[ting] at naught” the rules of standing in mandamus.15 Id.
15
The majority misses the essence of these cases in attempting to
extend Crockett v. Board of Education, 199 P. 158 (Utah 1921), to
sustain standing for the Article VI petitioners in this case. See supra
¶ 27 n.14. That provision—like many others in our constitution and
statutes—could be said to be “designed for the public interest and
benefit.” Supra ¶ 27 n.14 (citing Laney v. Fairview City, 2002 UT 79,
¶ 34, 57 P.3d 1007). But the standing question for mandamus actions
under our cases is not whether the law to be vindicated is designed
to protect a “public interest” that encompasses the plaintiffs filing
suit. It is whether the plaintiffs can be deemed to be vindicating a
“special or peculiar interest” rather than “that of the general
community” at large. Crockett, 199 P. at 160–61. The petitioner in
Crockett was deemed to qualify because he was a member of a subset
of the citizenry at large, but one specifically covered by a statute
(continued...)
45
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
D. The Root of Standing Doctrine
¶87 This historical practice of differentiating between public
and private rights is fundamental. The above-cited cases
distinguishing private and public rights represent not just a
traditional policy preference for public control over public actions,
but a principle long understood to define and establish limits on the
judicial power.
¶88 Prohibiting private parties from vindicating grievances
shared by the general community plays an important role in
maintaining the separation of powers.16 Thus, in the era leading up
to the founding of the Utah Constitution, American courts widely
accepted the public-/private-rights distinction as an element of
“standing” or a limit on the gateway to the judicial power.17 Respect
15
(...continued)
aimed at those “beneficially interested in having a statement
prepared and published in the manner in which the law expressly
and clearly enjoins.” Id. at 161. The petitioner in Startup, by contrast,
was simply a member of the community at large, one who was
simply “interested as a citizen in seeing that the law was enforced.”
Startup, 203 P. at 641.
As explained in greater detail below, infra ¶¶ 117–18, the Article
VI claimants in this case fall in the latter category. Their only interest
is as citizens seeking enforcement of laws that protect all Utah
citizens equally. If it is enough to sustain public interest standing to
note that the law being vindicated is “designed for the public
interest and benefit,” nothing will be left of the key distinction in
Crockett and Startup. The same can be said of any law, so the
majority’s argument must be rejected if we are to retain any
semblance of a limit on the doctrine of standing.
16
The majority recognizes this core point at a high level of
generality, conceding that the judicial power is not unlimited and
that there are “certain standing requirements” that “emanate from
the principle of separation of powers.” See supra ¶ 12 n.4 (internal
quotation marks omitted). But the court fails to identify any such
limitations, or to assess whether the public interest exception may
exceed them. Thus, the court’s concession stands as an
acknowledgement that its decision may tread on the principle of
separation of powers—without any analysis of whether it does so.
17
Ann Woolhandler & Caleb Nelson, Does History Defeat Standing
Doctrine?, 102 MICH. L. REV. 689, 691 (2004) (“[T]here was an active
law of standing in the eighteenth and nineteenth centuries. To be
(continued...)
46
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
for that principle is essential to honoring constitutional limits on the
powers of the judicial branch of government.
¶89 When we exceed our constitutional authority, we
necessarily tread on ground that belongs to a coordinate branch of
government. As we noted in Jenkins v. Swan, “[t]he requirement that
a plaintiff have a personal stake in the outcome of a dispute is
intended to confine the courts to a role consistent with the
separation of powers, and to limit the jurisdiction of the courts to
those disputes which are most efficiently and effectively resolved
through the judicial process.” 675 P.2d 1145, 1149 (Utah 1983). And
as we explained in Baird v. State, “[t]o grant standing to a litigant,
who cannot distinguish himself from all citizens, would be a
significant inroad on the representative form of government, and
cast the courts in the role of supervising the coordinate branches of
government.” 574 P.2d 713, 717 (Utah 1978).
¶90 When a dispute implicates commonly held public rights,
the prerogative to advocate that interest belongs to the body politic
generally, not to private individuals. And the advocacy of such
public rights belongs either to government representatives suing for
the public in court, or to the representative branches of government.
As we put it in Jenkins v. Swan, “the airing of generalized grievances
and the vindication of public rights are properly addressed to the
legislature, a forum where freewheeling debate on broad issues of
public policy is in order.” 675 P.2d at 1149–50.
¶91 We cannot simultaneously honor these fundamental
restraints on our power while defining that power through ad hoc,
discretionary standards rooted in our sense of the “importance” of
or “public interest” in the issues presented. See Utah Transit Auth.,
2012 UT 75, ¶¶ 17, 32 & n.18 (rejecting freestanding “public interest”
exception to the mootness doctrine; noting that the doctrine is not a
“principle of our own creation” which we may “abolish . . . at our
whim, on the ground . . . that the question presented is sufficiently
17
(...continued)
sure, early American courts did not use the term ‘standing’ much
. . . .[b]ut eighteenth- and nineteenth-century courts were well aware
of the need for proper parties, and they linked that issue to the
distinction between public and private rights.”); see Kendall v. United
States ex rel. Stokes, 37 U.S. 524, 619 (1838) (articulating a notion of the
“judicial power” under which “private rights are to be enforced by
judicial proceedings”).
47
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
important or interesting to merit our attention”).18 These are not
legal restraints on our power. They are a hollow assurance that we
will exercise it only where we think it is expedient to do so. That is
troubling, as it threatens to blur the lines of standing with our views
on the underlying merits.
¶92 We should repudiate the public interest approach and
reiterate and clarify the traditional formulation of the doctrine of
standing. We should decide this case in accordance with that
traditional formulation.
III. PUBLIC INTEREST STANDING IN UTAH CASES
¶93 Our modern standing cases do not foreclose the approach
I advocate; they leave plenty of room for faithful adherence to the
traditional standing formulation. Prior to today’s decision, our cases
have only occasionally adverted to a “public interest” notion of
standing, and almost always in dicta (as an alternative to traditional
standing). Today the court crosses a significant, problematic line. It
extends the dicta in our cases to a square holding, and does so in a
manner that deprives the limits of the public interest exception of
any meaningful content.
A. The Private Right Limitation in Our Law
¶94 The holdings in most of our cases (if not always the dicta)
have effectively maintained traditional limitations on standing. In
Jenkins v. Swan, for example, we foreclosed standing in cases where
“other potential plaintiffs with a more direct interest in [the]
particular question” exist. 675 P.2d 1145, 1151 (Utah 1983). This
holding appropriately prefers parties that meet traditional standing
requirements. See id. at 1150 (“[T]his Court will not readily relieve
a plaintiff of the . . . requirement of showing a real and personal
interest in the dispute.”); York v. Unqualified Wash. Cnty. Elected
Officials, 714 P.2d 679, 680 (Utah 1986) (per curiam).
18
Even proponents of “public right” standing recognize this
failing. See John Dimanno, Beyond Taxpayers’ Suits: Public Interest
Standing in the States, 41 CONN. L. REV. 639, 667 (2008) (“[I]t leaves a
great deal—perhaps too much—discretion in the hands of judges,
where somewhat subjective line-drawing inevitably occurs in
distinguishing between those public actions worthy of adjudication
and those that are not. Another concern is that in deciding whether
the doctrine applies, judges must be sure to separate the issue of
standing from the merits of the case, a difficult task for any
adjudicator.”).
48
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
¶95 We departed from that approach to some extent in Utah
Chapter of the Sierra Club v. Utah Air Quality Board, 2006 UT 74, 148
P.3d 960, where we outlined the parameters of an expanded “public
right” standing. But that discussion was dicta and not controlling.
Because the plaintiff satisfied traditional standing requirements, the
court did not need to opine about an alternative (public right)
standing test. See id. ¶ 32.19
¶96 To my knowledge, we have only once employed the Sierra
Club dicta in a case where we found traditional standing lacking: in
City of Grantsville v. Redevelopment Agency of Tooele City, 2010 UT 38,
¶ 16, 233 P.3d 461. In that case, we upheld a municipality’s
“alternative” standing to litigate a contract matter involving a claim
for breach of a development agreement. Id. Yet although the City of
Grantsville opinion upholds Grantsville City’s standing on public
interest grounds, id., that conclusion was again unnecessary. The
city, after all, was a signatory to the agreement with an express right
to receive proceeds of the development, and as such it was
unquestionably a third-party beneficiary20 with a traditional,
private-right interest in the contract dispute.21 See id. ¶¶ 4, 6.
¶97 In City of Grantsville the court claimed not to reach the
third-party beneficiary basis for standing. See id. ¶ 14 & n.2
(acknowledging that third-party beneficiaries have traditional
standing to sue under a contract, but concluding not to “address this
issue” because Grantsville City “does not argue it”). But in my view
the court necessarily (if implicitly) relied on this ground, as
19
See Cedar Mountain Envtl., Inc. v. Tooele Cnty. ex rel. Tooele Cnty.
Comm’n, 2009 UT 48, ¶ 9, 214 P.3d 95 (finding that the plaintiff met
a statutory standing requirement—which incorporated the
traditional standing test—before commenting on its standing under
the alternative standing test); Haymond v. Bonneville Billing &
Collections, Inc., 2004 UT 27, ¶ 6, 89 P.3d 171 (stating that plaintiffs
failed to satisfy either the traditional or the alternative standing test).
20
See SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs.,
Inc., 2001 UT 54, ¶ 47, 28 P.3d 669 (“Third-party beneficiaries are
persons who are recognized as having enforceable rights created in
them by a contract to which they are not parties and for which they
give no consideration. . . . The contract must be undertaken for the
plaintiff’s direct benefit and the contract itself must affirmatively
make this intention clear.” (internal quotation marks omitted)).
21
See Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 53, 48 P.3d 895(stating that third-party beneficiaries of a contract have standing to
sue under that contract).
49
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
Grantsville City’s third-party beneficiary status is the only plausible
legal basis for its standing.
¶98 For one thing, the City’s failure to cite a third-party
beneficiary basis for its standing could not have been dispositive.
Standing is jurisdictional and is thus a matter the court has an
obligation to consider sua sponte. Utah Transit Auth. v. Local 382 of
the Amalgamated Transit Union, 2012 UT 75, ¶ 26 & n.17, 289 P.3d 582.
And once we determine to reach an issue, we can hardly be
required to blind ourselves from considering authority of relevance
to its resolution.22 So we were not at all foreclosed from relying on
the city’s third-party beneficiary status in upholding its standing.
¶99 And in my view the court must have relied on that status
in its decision. A complete stranger to a contract would never be
granted standing to sue to enforce it. See Hooban v. Unicity Int’l, Inc.,
2012 UT 40, ¶ 24, 285 P.3d 766 (“[Plaintiff] was deemed a stranger to
the contract, and as such he had no rights to enforce it or obligations
under it.”). And the enforcement of a mere contract is not a matter
of fundamental public importance; surely it is less so than the
constitutional claims under Article X deemed insufficient by the
majority today. See supra ¶ 35. So even the City of Grantsville opinion
is not really authority for public interest standing generally (and
certainly not public interest standing in contract actions brought by
third parties); it is better viewed as endorsing the standing of a
named third-party beneficiary who failed to press a third-party
beneficiary argument.
¶100 This case is thus a significant milestone. It marks the first
time the court has endorsed a general theory of public interest stand-
ing in a square holding. That holding is problematic on many levels.
In addition to ignoring the traditional limits on our authority under
Article VIII, the public interest exception undermines at least two
strands of our case law requiring a real party in interest to bring its
own claims.
¶101 First, rule 17 of the Utah Rules of Civil Procedure requires
that “[e]very action shall be prosecuted in the name of the real party
in interest.” Standing overlaps with the real party in interest
22
See Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828(considering a controlling statute not raised by the parties below and
explaining that “we routinely consider new authority relevant to
issues that have properly been preserved” and that “we have never
prevented a party from raising controlling authority that directly
bears upon a properly preserved issue”).
50
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
requirement “inasmuch as both terms are used to designate a
plaintiff who possesses a sufficient interest in the action to be
entitled to be heard on the merits.” 6A CHARLES A. WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 1542 (3d ed. 2012). Courts
generally define a real party in interest as “the person who is the
true owner of the right sought to be enforced.” See Pillsbury Co. v.
Wells Dairy, Inc., 752 N.W.2d 430, 435 (Iowa 2008) (internal quotation
marks omitted). So, even if a merely “competent” or “appropriate”
party could establish standing under the proposed “public interest”
principle, it would have to satisfy other rules governing parties in
dispute, including the requirement that it be the true owner of the
right sought to be enforced.23
¶102 Second, we have traditionally limited a litigant’s ability to
assert a third party’s rights. See Shelledy v. Lore, 836 P.2d 786, 789
(Utah 1992). Third-party vindication of another’s rights is generally
proper only if “some substantial relationship between the claimant
and the third parties [exists],” if it is impossible for the rightholders
to assert their own constitutional rights, and if the third parties’
constitutional rights would be diluted “were the assertion of jus
tertii not permitted.” Id. (internal quotation marks omitted)
¶103 We have recognized these limitations for good reason. As
the U.S. Supreme Court has explained, “‘courts should not
adjudicate [a third party’s] rights unnecessarily,” as “it may be that
in fact the holders of those rights . . . do not wish to assert them’”
and the “third parties themselves usually will be the best
proponents of their own rights.” Wilderness Soc. v. Kane Cnty., 632
F.3d 1162, 1171–72 (10th Cir. 2011) (second alteration in original)
(quoting Singleton v. Wulff, 428 U.S. 106, 113 (1976)).24 Thus, courts
“should prefer to construe legal rights only when the most effective
advocates of those rights are before them.” Id. at 1172 (internal
quotation marks omitted).
23
See Shurtleff v. Jay Tuft & Co., 622 P.2d 1168, 1172 (Utah 1980)
(“A defendant has the right to have a cause of action prosecuted by
the real party in interest to avoid further action on the same demand
by another and to permit the defendant to assert all defenses or
counterclaims available against the real owner of the cause.”).
24
See Lyon v. Bateman, 228 P.2d 818, 824 (Utah 1951) (“We believe
the departments of the state should be first given a fair opportunity
to settle their differences before being harassed by litigants who seek
to have the courts render advisory judgments prematurely.”).
51
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
¶104 I dissent because I see no basis in our precedent or
elsewhere for abandoning these principles. I find no comfort in the
fact that the approach embraced by the majority today “is not
unusual in state jurisprudence.” Supra ¶ 16. That is apparently true.
But it is also beside the point if the trends in caselaw outside of Utah
are incompatible with the provisions of the law that we are bound
to enforce. And that is exactly how I see the authority before us.
¶105 The state precedent cited by the majority rests entirely on
the faulty premise of “standing” as a judge-made principle of
prudential restraint. In adopting a public interest conception of
standing, these state courts have routinely ignored the governing
constitutional language—with the dismissive assertion that the
federal “case or controversy” limitation is not a part of the state
judicial power clause. See supra ¶ 16 (noting that the cited opinions
are “mindful that their constitutions do not impose the same
restrictions on their judicial power that the federal constitution
imposes on federal courts”). For reasons I’ve explained above, the
conclusion (of unbridled, common-law power) does not at all follow
from the premise (the lack of a “case or controversy” clause). Thus,
the court may find persuasive the notion of standing in state court
as “‘a self-imposed rule of restraint’” or a “‘judge-made doctrine’”
that “‘free[s]’” state courts to “‘reject procedural frustrations in favor
of’” their own subjective sense of what is a “‘just and expeditious.’”
Supra ¶ 16 n.10 (quoting 59 AM. JUR. 2D Parties § 30 (2012)). But I find
them helpful only in highlighting the problematic foundation of the
public interest doctrine of standing. We should reject that doctrine
and instead follow the traditional formulation of standing that is
deeply rooted in the holdings of our cases and in the text of Article
VIII.
B. The Majority’s Eradication of a Meaningful
“Public Interest” Standard
¶106 In upholding plaintiffs’ standing to assert their Article VI
claims in this case, the court not only invokes the “public interest”
exception in a square holding; it stretches the exception in a manner
that erases all meaningful limits on the doctrine of standing. The
majority heralds its intent to preserve “strict standards” in a manner
that “avoid[s] the temptation to apply a judge’s own beliefs and
philosophies to a determination of what questions are of great public
importance.” Supra ¶ 32 n.18 (internal quotation marks omitted). Yet
the court’s variation on the public interest standard eliminates any
real limits, strict or otherwise, leaving the applicability of the
exception to the court’s unbridled discretion.
52
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
¶107 First, in repudiating any requirement that the plaintiff be
a traditional claimant with an individual injury—or even the “most
appropriate party,” as our prior dicta sometimes suggested25—the
court effectively abandons any threshold limitation based on the
plaintiff’s stake in the outcome of the case. The court articulates this
element in terms that require a determination that the plaintiff is
“‘an appropriate party.’” Supra ¶ 15 (quoting Cedar Mountain Envtl.,
Inc. v. Tooele Cnty. ex rel. Tooele Cnty. Comm’n, 2009 UT 48, ¶ 8, 214
P.3d 95 (emphasis omitted)). But this inquiry is hardly a “test.” It
seems to me that it is more of a post-hoc passing grade—one crafted
to justify the court’s ultimate determination to reach the merits of
the case.
¶108 That becomes clear when the court actually applies the test.
In deeming plaintiffs “appropriate,” the court says nothing that
couldn’t be said about any litigant with the resources to hire
effective counsel (and with even the most remote interest). Perhaps
it’s true that plaintiffs have “done an admirable job of briefing the
facts and controlling law” in this case, supra ¶ 29, but that is no
meaningful gateway to standing. Nor is the fact that the plaintiffs
have “policy concerns” and are “focus[ed] on the instant
constitutional challenge.” Supra ¶ 29 (internal quotation marks
omitted). We should require (and almost always have required)
more from litigants than a showing that they are deeply worried
about the case before us. Finally, the fact that plaintiffs “have caused
this court to consider” the Article VI issues they have raised and to
“clarify the standards they impose for the first time in decades” may
ultimately be an “achievement.” Supra ¶ 29.26 But if so, it is a circular
25
Terracor v. Utah Bd. of State Lands & Forestry, 716 P.2d 796, 800
(Utah 1986) (stating that public interest standing did not exist
because there were “others who could raise the same challenges
raised by [plaintiff], and who would have a greater, more direct
interest in doing so”); Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah
1983) (“If the plaintiff does not have standing under the [traditional
test], we will then address the question of whether there is anyone
who has a greater interest in the outcome of the case than the
plaintiff. If there is no one, and if the issue is unlikely to be raised at
all if the plaintiff is denied standing, this Court will grant
standing.”).
26
The troublesome nature of this standard is compounded by the
requirement that it be assessed not just on appeal but also at the trial
court level—and, thus, by a wide range of judges whose varying
(continued...)
53
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
achievement of the court’s own making. The fact that the court
ultimately considered the issues presented cannot itself be a
justification for agreeing to consider the issues. Plaintiffs have
achieved standing only because we granted it to them. It is a
bootstrap to commend that “achievement” as a basis for upholding
standing.
¶109 The court cements the circularity of its test in its
articulation of the second step of the analysis. While acknowledging
the existence of plaintiffs with concrete interests in suing to
challenge SB 2 (such as teachers who fail to qualify for a salary
supplement under the statute or textbook publishers whose books
are not approved by the statutory approval program), the court
dismisses these “hypothetical” plaintiffs as irrelevant—asserting that
their failure to file suit to date is enough to render “unlikely” a
lawsuit by these parties. Supra ¶ 30. This is a striking—and deeply
troubling—step in our public interest standing jurisprudence. Before
today, the question was not whether directly affected parties had
filed suit, but whether they existed. See Haymond v. Bonneville Billing
& Collections, Inc., 2004 UT 27, ¶ 10, 89 P.3d 171 (denying “public
interest” standing because two classes of potential plaintiffs existed
that were in a better position to bring suit). If the failure of real
parties in interest to file suit is enough to sustain recognition of a
member of the general public to step in as an “appropriate” party,
we have defined the gateway to the judicial power out of existence.27
26
(...continued)
views on squishy matters of “importance” and “appropriateness”
will assure even more arbitrariness in application. Trial courts will
rarely be in a position to assess the admirability of anticipated
briefing at the threshold stage at which they will be required to
determine standing. And from the trial court perspective, the
“importance” of or “public interest” in an issue and the
“appropriateness” of a plaintiff will likely feel suspiciously like a
full-scale review of the merits of the issues. The majority’s
formulation of public interest standing ignores this problem, treating
the matter as one left only for appellate courts to resolve. That leaves
the first-line judges charged with addressing standing (trial courts)
completely adrift. It also assures not only arbitrariness but
protracted appeals and litigation.
27
And we have done so, moreover, in a manner that threatens the
rights and interests of the underlying real parties in interest. I rather
doubt that the real parties with individualized interests implicated
(continued...)
54
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
We have assured that the jurisdictional threshold to the Utah courts
depends only our subjective determination to hear a case even
absent the presence of the claimant with a traditional stake in filing
it.
¶110 Finally, the court’s test is also circular in its assessment of
the ultimate question of whether the Article VI claims asserted by
plaintiffs are “of sufficient importance and general interest that
claims of their violation may be brought even by plaintiffs who lack
standing under the traditional criteria.” Supra ¶ 27. Except to
conclude that the Article VI issues are “part of the fundamental
structure of legislative power articulated in our constitution,” supra
¶ 27, the court offers no justification for deeming this element
satisfied. And the court’s further explication of the point only
confirms its analytical emptiness. I see no rational, articulable basis
for deeming the Article VI issues sufficiently important while
rejecting the Article X issues on this score.
¶111 It is hardly an answer to note that “[n]ot every
constitutional provision” is sufficiently important. Supra ¶ 27. That
only begs the question of which ones clear the bar—and of the
theoretical basis for setting the bar, or the level at which it is set. In
begging these questions, the court has evaluated the importance
element entirely within the confines of a black box. That not only
deprives the parties in this case of an understanding of the basis of
the court’s decision; it also withholds from lower courts the tools
needed to make these determinations going forward.
¶112 The hollow nature of the majority’s standing analysis is
confirmed by the court’s ultimate rejection of public interest
standing for the Article X claims. The court’s proffered
rationale—that the Article VI claims involve “restrictions which
must be observed every time the legislature exercises its core
function of passing laws” while the Article X claims involve a mere
“a delegation of a defined subject to particular agency,” supra
27
(...continued)
by SB 2 would find their decision not to sue irrelevant. In opening
the door to citizen suits supplanting claims otherwise belonging to
real parties with distinct claims, we have allowed standing that
threatens the integrity of the real party in interest doctrine. If this
approach is taken seriously in future cases—and not, as may be the
case, a one-time excuse to reach the merits in a case where they
would otherwise be beyond our reach—we will surely rue this day,
and just as surely be called on to dial back on this and other
elements of today’s opinion.
55
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
¶ 36,—is misdirection at best. Surely abiding by the constitution’s
power-allocation scheme is part of the legislature’s “core function”
that must be considered each time a law is passed. And the
majority’s refusal to “conclude that such questions can never be
appropriate ones in which to employ the public–interest standing
doctrine” only bears that out and emphasizes the standardless
quality of this doctrine. Supra ¶ 36. Either the violation of a
constitutional provision is important or it is not. Its importance
cannot depend on the identity of the plaintiffs or the circumstances
of each case, as the majority implies. Supra ¶ 36.
¶113 In all, the majority’s distinction between the Article VI and
Article X claims does not spring from meaningful analysis. It is an
attempt to paper over an ultimate conclusion28—the court’s
preference for reaching one set of claims (under Article VI) while
declining to reach others (under Article X).29
28
The court seeks to answer this concern with the assurance that
its decision is based “on the text and structure of our constitution”
and not on “its own beliefs.” Supra ¶ 32 n.18. That is unsatisfying, as
the court points to nothing in the text or structure of the constitution
that makes Article VI claims more important than Article X claims.
It may be true, as the majority states, that Article VI “express[es] the
intent of the people to limit legislative power and prevent special
interest abuse.” Supra ¶ 32 n.18 (internal quotation marks omitted).
But Article X is a parallel limitation: In conferring power on the State
Board of Education to control and supervise the public education
system, Article X withholds that power from everyone
else—including the legislature. See UTAH CONST. art. X, § 3. Thus,
both Article VI and Article X constitute limitations on the legislative
power. If the former limitations are fundamentally important, then
so are the latter.
29
In a sense, the Article X claims seem more fundamental than
their Article VI counterparts, in that the former constitute
substantive, separation-of-powers limits on governmental power
(power reserved for the Board of Education), while the latter
comprise only procedural rules for lawmaking (single-subject and
clear-title requirements). If asked for my subjective assessment of the
relative importance of the two sets of claims before us, I suppose I
would tend to elevate the Article X claims above the Article VI
claims on this basis. In any event, the court offers no basis for a
contrary conclusion.
On the other hand, this factor is also problematic at its core. Public
interest or importance may often cut against the propriety of the
(continued...)
56
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
¶114 The exercise of unfettered discretion is troubling,
especially on a matter constituting a limit on our power under the
Utah Constitution. As we explained in Utah Transit Authority, “on
matters affecting the scope of our own power or jurisdiction, our
duty to vigilantly follow the strictures of the constitution is a matter
of great significance.” 2012 UT 75, ¶ 26. We ignore that
responsibility when we treat the constitutional limits on our power
as “mere matter[s] of convenience or judicial discretion.” Id. ¶ 27.
And we undermine the fundamental notion of a written constitution
when we adopt jurisdictional standards that show no fidelity to that
document and seize unbridled “discretion to decide which cases
should be spun out and which cut off based on some vague sense of
fairness or importance of the issue.” Id.
¶115 The public interest notion of standing cannot stand in the
face of these principles. The court’s extension of this doctrine here
is particularly problematic, as it cements the public interest
exception in a square holding, and in a manner that assures
arbitrariness in its application going forward.
29
(...continued)
exercise of judicial power. The matters of greatest societal
interest—involving a grand, overarching balance of important public
policies—are beyond the capacity of the courts to resolve. The
majority acknowledges this concern, noting that “‘the more
generalized the issues, the more likely they ought to be resolved in
the legislative or executive branches.’” Supra ¶ 31 (emphasis
omitted) (quoting Utah Chapter of the Sierra Club v. Utah Air Quality
Bd., 2006 UT 74, ¶ 39, 148 P.3d 960). But the court ultimately fails to
give effect to this principle. The Article VI claims presented
implicate issues that are among the most generalized one could
imagine—involving structural restrictions on the legislative process,
which affect all citizens in a general, undifferentiated manner.
Although these seem to be precisely the sort of generalized
matters calling for deference to the legislative process, the court
dismisses this concern on the ground that resolution of this case does
not run afoul of political question doctrine. Supra ¶ 31. That is
unpersuasive. The justiciability bar to resolution of political
questions is analytically distinct from the limits of the doctrine of
standing. The latter focuses on the nature of the claimant’s interest;
the former concerns itself with the nature of the legal standard
implicated by that interest. Each is a separate hurdle, and clearing
one hurdle (political question) does not erase the need to clear the
other (standing).
57
GREGORY v. SHURTLEFF
JUSTICE LEE, concurring in part and dissenting in part
IV. THE TRADITIONAL STANDING TEST APPLIED HERE
¶116 For all these reasons, we should reinforce the constitutional
basis for our traditional conception of standing and repudiate the
public interest exception as incompatible with our constitutional
tradition. And we should vacate and dismiss this case for lack of
standing.
¶117 The Article VI claims at issue here are prototypical,
generalized grievances. Plaintiffs have asserted no injury peculiar to
them—no interest or stake beyond that of all Utah citizens. They are
complaining about the process that resulted in the enactment of SB
2—a process allegedly lacking the clear title and single subject
required by the Utah Constitution—and not an unlawful impact of
the legislation on them as private individuals.
¶118 Thus, plaintiffs are not individuals or entities with a direct
stake in challenging SB 2, like the affected teachers or book
publishers identified by the majority. Supra ¶ 30. They are Utah
taxpayers asserting a generalized challenge to the propriety of the
legislative process culminating in SB 2. Their standing cannot be
upheld under our historical standing caselaw without doing serious
violence to their core principle. See supra ¶¶ 72–92. They lack
standing on that basis, and their case should be dismissed.
¶119 The Article X claims, on the other hand, do not belong to
the plaintiffs who seek to litigate them. The Utah Board of Education
is the real party in interest. We should not allow vaguely interested
individuals to assert and litigate to protect the rights of a state body
when that body has declined—for whatever reason—to take action.30
The plaintiffs have not established that the Board of Education
cannot properly protect its own rights. Nor have they asserted a
valid, particularized injury stemming from the condemned
legislation. Thus, I would dismiss both claims because they
implicate the rights of third parties who are the real parties in
interest, and because the plaintiffs who seek to advance these claims
30
See Raines v. Byrd, 521 U.S. 811, 829–30 (1997) (denying standing
to congressmen alleging only wholly abstract and widely dispersed
institutional injury from dilution of legislative power where none
were authorized to represent their respective houses and where both
houses opposed the suit); see also People Who Care v. Rockford Bd. of
Educ., 179 F.R.D. 551, 562 (N.D. Ill. 1998) (holding that “petitioners’
status as School Board members does not permit them to step into
the shoes of the [School Board] and invoke its right to appeal”).
58
Cite as: 2013 UT 18JUSTICE LEE, concurring in part and dissenting in part
cannot establish their own individual standing or satisfy the
elements of the doctrine of third-party standing.
¶120 This is not the sort of case where the plaintiffs before the
court are the only kinds of parties who could conceivably litigate
this kind of action. Clearly there are plaintiffs out there with a direct
interest in these suits—textbook publishers, science teachers, and the
State Board of Education, for example. Those plaintiffs have elected
not to sue. That seems significant. We should not broaden the field
of proper plaintiffs just because we wish that the directly interested
parties had filed suit, or because we think the issues at stake seem
important or interesting. The judicial power is confined to the
resolution of disputes between the parties who have a direct stake
in the outcome. The plaintiffs who filed these cases do not qualify
under that rubric.
¶121 The bounds of our judicial power cannot accommodate the
kind of expansion that “public right” standing for merely
“competent” plaintiffs involves. We cannot properly allow less than
directly interested parties to litigate before us. To do so risks
unrestrained decision-making based on underdeveloped facts and
law and ultimately against the will and rights of those directly
harmed.31 It also risks invasion of the province of the legislature.
Public dispute resolution is beyond our constitutional authority in
a case filed by private plaintiffs.
31
It is perhaps for these reasons that some states either refuse to
recognize “public interest” standing or maintain traditional standing
requirements. See, e.g., Henderson v. Miller, 592 N.E.2d 570, 575 (Ill.
App. Ct. 1992); Weinlood v. Simmons, 936 P.2d 238, 244 (Kan. 1997)
(“Interests to protect the public at large must be brought by the
proper public official.”); 120 W. Fayette St., LLLP v. Mayor of
Baltimore, 964 A.2d 662, 669–70 (Md. 2009) (stating that taxpayer
standing is granted when the disputed action “may result in a
pecuniary loss to the taxpayer or an increase in taxes”), superseded on
other grounds by statute as stated in Patuxent Riverkeeper v. Md. Dep’t of
the Env’t, 29 A.3d 584, 586 (Md. 2011); In re Sandy Pappas Senate
Comm., 488 N.W.2d 795, 797–98 (Minn. 1992) (maintaining an “injury
in fact” requirement); City of Chattanooga v. Davis, 54 S.W.3d 248,
280–81 (Tenn. 2001) (expressly refusing to adopt “public rights”
standing); Goldman v. Landsidle, 552 S.E.2d 67, 72 (Va. 2001) (refusing
to recognize general, state taxpayer standing).
59