Widdison v. Bd of Pardons

2021 UT 12
IN THE
SUPREME COURT OF THE STATE OF UTAH
BOBBIE D. WIDDISON,
Appellant,
v.
STATE OF UTAH and the UTAH BOARD OF PARDONS AND PAROLE,
Appellee.
No. 20161043
Heard September 20, 2019
Filed April 29, 2021
On Direct Appeal
Third District, Salt Lake
The Honorable Todd Shaughnessy
No. 140903911
Attorneys:1
Lorenzo K. Miller, Draper, for appellant
Sean D. Reyes, Att’y Gen., Brent Burnett, Asst. Solic. Gen.,
Salt Lake City, for appellee
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and
JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 In 2011, the Utah Board of Pardons and Parole (Board)
notified Bobbie Widdison that she would be paroled in 2018. In 2013,
the Board rescinded Widdison’s parole date and ordered her to serve
_____________________________________________________________
1 John Mejia, Leah Farrell, Jason Groth, Salt Lake City, for amicus
curiae.
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her entire life sentence. The Board rescinded Widdison’s parole date
based on unadjudicated allegations that Widdison had abused a
child and supplied a minor with drugs and alcohol.
¶2 Widdison filed a petition for extraordinary relief arguing
that the Board’s decision to rescind her parole date violated her state
and federal constitutional rights. And she asked the district court to
reinstate her original parole date. The district court rejected those
arguments and granted the State’s motion for summary judgment.
¶3 After Widdison filed this appeal, the Board paroled her.
Widdison concedes that the Board’s decision moots this matter
because she has received the relief she sought before the district
court. Widdison nevertheless emphasizes the importance of the
issues she raises and invites this court to hear her arguments under
our public interest exception to the mootness doctrine. We
acknowledge the importance of the concerns Widdison advances,
but Widdison has not convinced us that if we do not decide her case,
we will likely deprive ourselves of any opportunity to review the
types of issues she raises. We therefore decline Widdison’s invitation
and dismiss this case as moot.
BACKGROUND
¶4 The State of Utah charged Bobbie Widdison with the
murder of her child, as well as three counts of felony child abuse and
three counts of misdemeanor child abuse based on injuries the child
sustained before death. At trial, the State offered evidence that
Widdison had mistreated two other children, but those allegations
were never adjudicated.
¶5 A jury convicted Widdison of first degree felony murder.
The jury also convicted Widdison on the remaining charges,
although it reduced one felony charge to a misdemeanor. The district
court sentenced Widdison to five years to life in prison for the
murder. It also sentenced Widdison to one to fifteen years for each
felony and one year for each misdemeanor. The court ordered the
child abuse counts to run concurrently with each other but
consecutively to the murder sentence.
¶6 In 2011, the Board held a parole hearing for Widdison and
granted her a parole date of May 8, 2018, subject to future review
and modification.
¶7 Two years later, a witness (Witness) from Widdison’s
original trial testified at a Board hearing on an unrelated matter and
mentioned that Widdison had supplied her with drugs and alcohol
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when she was a minor. Based on this information, the Board
scheduled a hearing to consider whether it should rescind
Widdison’s parole date.
¶8 The Board did not originally tell Widdison why it had
scheduled a rescission hearing. After Widdison inquired, the Board
disclosed the allegation that had been made and explained that she
would have an opportunity to respond.
¶9 At the rescission hearing, the Witness testified about the
drugs and alcohol she claimed Widdison had given her when she
was underage. The Witness also testified that Widdison had abused
her other children. The Board member overseeing the hearing
questioned Widdison about the drugs and alcohol. The Board
member also questioned Widdison about her child’s death.
¶10 After the hearing, the Board collected more documents from
the State’s original investigation, provided a packet of these
documents to Widdison, and scheduled a second hearing. At this
hearing, the Board member questioned Widdison about, among
other things, the alleged abuse of her other children. At the hearing
and in a letter sent to the Board afterward, Widdison denied the new
allegations. Despite her denials, the Board rescinded Widdison’s
parole and “expired” her life sentence.2
¶11 Widdison filed a petition for extraordinary relief alleging
various violations of her federal and Utah constitutional rights.
Widdison requested that the district court order her original parole
date reinstated. The district court granted summary judgment in
favor of the Board. Widdison appealed and, while this appeal was
pending, the Board paroled Widdison and filed a suggestion of
mootness.
ANALYSIS
I. This Case Is Moot
¶12 Widdison concedes her case is moot. As a general rule, if
our decision cannot affect the rights of the parties before us, the
matter is moot and, absent an exception to our mootness doctrine,
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2 In this context, “expired” is a term the Board employs to express
the concept that, absent some intervening change, an inmate should
expect to never be paroled and to serve the entirety of her sentence.
In this case, this meant that Widdison anticipated spending the rest
of her life in prison.
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we will not hear the matter. See State v. Steed, 2015 UT 76, ¶ 1, 357
P.3d 547. In her petition, Widdison requested an evidentiary hearing,
an order declaring that the Board’s actions violated her
constitutional rights, the reinstatement of her parole date, and an
order prohibiting the Board from retaliating against her. The Board
has paroled Widdison; any relief relating to prerelease proceedings
or retaliation would have no legal effect on Widdison or her rights.
II. Mootness Exceptions
¶13 Because this matter is moot, Widdison asks us to apply the
“public interest” exception and address the legal issues she presents.
A. The Elements of the “Public Interest” Exception
¶14 The “public interest” exception carries a slightly deceptive
name, and, in an effort to resolve this confusion, we have previously
suggested that this exception should simply be referred to as an
exception to the mootness doctrine. See Utah Transit Auth. v. Local 382
of Amalgamated Transit Union, 2012 UT 75, ¶ 33, 289 P.3d 582. Under
this exception, it is not enough that an appellant convince us that the
appeal presents an issue of public concern. Rather, we will decide a
moot issue when a litigant can demonstrate that the issue will
“(1) affect the public interest, (2) be likely to recur, and (3) because of
the brief time that any one litigant is affected, be likely to evade
review.” State v. Steed, 2015 UT 76, ¶ 7, 357 P.3d 547.3 Widdison
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3 We have also recognized that the existence of collateral legal
consequences can allow a court to hear a matter that we would
otherwise consider moot. This court recently examined this principle
in State v. Legg and explained that the party asserting the existence of
collateral legal consequences bears the burden of convincing us that
they exist—except in narrow circumstances where they are
presumed. 2018 UT 12, ¶¶ 17, 25, 33, 417 P.3d 592; Duran v. Morris,
635 P.2d 43, 45–46 (Utah 1981). Collateral consequences are generally
presumed to flow from criminal convictions, Legg, 2018 UT 12, ¶ 17,
but not from later administrative rulings like intra-prison
administrative decisions, Duran, 635 P.2d at 45, or parole hearings,
Legg, 2018 UT 12, ¶ 25 (declining to extend the presumption of
collateral legal consequences to appeals of probation revocations);
Spencer v. Kemna, 523 U.S. 1, 14 (1998) (declining to extend the
presumption to appeals of parole revocation).
In her opposition to the suggestion of mootness, Widdison has
not argued that collateral consequences flow from the Board’s
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argues that all three considerations are present here. Although we
agree with Widdison that her appeal raises issues that affect the
public interest and are likely to recur, we are not convinced the
issues she raises are likely to evade review.
¶15 The first thing someone asking us to address a moot issue
under this exception must show is that the matter affects the public
interest. In McRae v. Jackson, we noted that “class actions, questions
of constitutional interpretation, issues as to the validity or
construction of a statute, or the propriety of administrative rulings”
frequently raise issues of public concern. 526 P.2d 1190, 1191 (Utah
1974), overruled on other grounds by Utah Transit Auth. v. Local 382 of
Amalgamated Transit Union, 2012 UT 75, 289 P.3d 582; see also State, in
Interest of F.S.B., 2014 UT App 235, ¶ 3, 336 P.3d 1073 (holding that a
question of sufficiency of the evidence did not affect the public
interest).
¶16 Widdison contends that whether the Board can rescind a
parole date based on unadjudicated conduct presents an issue of first
impression, implicates important constitutional rights, and has the
potential to affect all inmates subject to Utah’s indeterminate
sentencing scheme. We agree.
¶17 The second factor requires a party to demonstrate that the
issue is likely to recur. “Under settled case law, ‘a mere physical or
theoretical possibility’ of recurrence is insufficient.” Utah Transit
Auth., 2012 UT 75, ¶ 36 (quoting Murphy v. Hunt, 455 U.S. 478, 482
(1982)).4 A party must convince us that the issue will arise again.
decision to parole her; she only “requests that this Court . . . address
the issues presented in her appeal under the public interest
exception.” At oral argument, counsel made a general assertion that
Widdison is being “treated differently” than if she had been paroled
on her original parole date, but there is no record support for this
belated assertion. In other words, Widdison has not shown any
cognizable collateral legal consequences, nor that there are any that
our case law instructs us to presume.
4 The Board argues that this factor is not met here because the
issue is not likely to recur with respect to Widdison. This is not Utah
law. See Ellis v. Swensen, 2000 UT 101, ¶ 27 & n.5, 16 P.3d 1233.
Although some jurisdictions do require that the issue will recur to
the same complainant, Utah is not alone in rejecting that
requirement. Compare Commonwealth v. Yameen, 516 N.E.2d 1149,
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¶18 Widdison notes that the Board makes rescission and parole
decisions regularly, including in circumstances involving
unadjudicated allegations against the inmate. And Widdison’s
argument comports with our experience. See, e.g., Neese v. Utah Board
of Pardons & Parole, 2017 UT 89, ¶ 27, 416 P.3d 663; Blanke v. Board of
Pardons & Parole, 2020 UT 39, ¶¶ 8–9, 467 P.3d 850. We agree with
Widdison that the issue will likely recur.
¶19 Third, it is not enough that the issue be likely to recur, it
must also be likely to evade review. Steed, 2015 UT 76, ¶ 8. We have
often restated this requirement as mandating that the issue should be
“inherently short in duration.” See, e.g., id. ¶ 9; Utah Transit Auth.,
2012 UT 75, ¶ 37 (“The types of issues likely to evade review are
those that are inherently short in duration. . . .” (quoting In re
Adoption of L.O., 2012 UT 23, ¶ 10, 282 P.3d 977)); Guardian ad Litem v.
State ex rel. C.D., 2010 UT 66, ¶ 14, 245 P.3d 724 (same). Examples of
these short matters include election challenges, Ellis v. Swensen, 2000
UT 101, ¶ 27, 16 P.3d 1233 (“[B]allots do not have to be produced
until seven days before the election.”), and pregnancy, see Utah
Transit Auth., 2012 UT 75, ¶ 37 n.23 (noting that Roe v. Wade, 410 U.S.
113 (1973) was heard because the issue was “capable of repetition,
yet evading review”).
¶20 We have also held that issues can evade review because of
the likely actions of a party. See, e.g., State ex rel. C.D., 2010 UT 66,
¶ 14 (citing Anderson v. Taylor, 2006 UT 79, 149 P.3d 352 and Kearns-
Tribune v. Salt Lake Cnty. Comm’n, 2001 UT 55, 28 P.3d 686 as
examples of inherently short issues); Utah Transit Auth., 2012 UT 75,
¶ 37 & nn.21–22 (citing McBride v. Utah State Bar, 2010 UT 60, 242
P.3d 769 and Kearns-Tribune as examples of inherently short issues);
State v. Steed, 2015 UT 76, ¶ 11 n.9, 357 P.3d 547 (recognizing an
“alternative analysis” in our case law for evading review where “the
likely choice of future litigants” creates only a short “window for an
appeal”); Poulton v. Cox, 2016 UT 9, ¶ 7, 368 P.3d 844 (citing Steed and
1150 (Mass. 1987) (not requiring the same complainant be affected),
and Gunaji v. Macias, 31 P.3d 1008, 1011 (N.M. 2001) (same), and Loisel
v. Rowe, 660 A.2d 323, 330 (Conn. 1995) (allowing the issue to recur to
an identifiable group for which the party can act as a surrogate), with
Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (requiring that
the issue recur to the same complainant), and Williams v. Lara, 52
S.W.3d 171, 184 (Tex. 2001) (same), and Anderson v. N. Carolina State
Bd. of Elections, 788 S.E.2d 179, 188 (N.C. Ct. App. 2016) (same).
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noting closed political meetings and bar admissions as inherently
short issues).
¶21 In McBride v. Utah State Bar, we held that an issue regarding
the administration of the bar exam would evade review because the
exam was held every six months and the petitioning applicant could
just retake the exam. 2010 UT 60, ¶ 15.
¶22 McBride echoed reasoning that we had employed in other
cases. For example, in Anderson v. Taylor, a petitioner requested
records of the search warrant executed by police at his home. 2006
UT 79, ¶ 4. A district court clerk informed him that they did not have
the documents or a record of the warrant. Id. The Provo City Police
Department returned the paperwork to the court nine days later, but
the magistrate did not file the documents with the clerk’s office. Id.
Anderson filed a petition for extraordinary writ for an order
requiring courts to retain copies of all the search warrants they issue,
as well as documents used to obtain the warrant. Id. ¶ 6. After
Anderson filed the petition, the court filed the documents Anderson
had sought and argued that Anderson’s claim was now moot. Id.
¶¶ 7, 9. We nevertheless applied the public interest exception,
reasoning that the issue would likely evade review because “once a
challenge is initiated, law enforcement will have every incentive to
immediately file the documentation supporting the search, thereby
mooting the particular claim.” Id. ¶ 11.
¶23 Similarly, in Kearns–Tribune Corp. v. Salt Lake Cnty. Comm’n,
a newspaper publisher challenged the Salt Lake County
Commission’s decision to go into closed session. 2001 UT 55, ¶ 1. The
newspaper argued that the decision violated the Utah Open and
Public Meetings Act. Id. ¶ 5. While the challenge was pending, the
Commission released minutes of the closed session and argued that
the minutes’ release mooted the suit. Id. ¶ 32. We rejected that
argument and concluded that the issue was likely to evade review
because public officials were likely to publish meeting minutes
before a matter could be completely litigated. Id. ¶ 33.
¶24 In other words, we have recognized that an issue may evade
review because of the intrinsically temporary nature of the issues
presented—like election disputes and pregnancy. And we have
recognized that an issue may be likely to evade review when we are
convinced that a party’s actions will persistently keep the issue out
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of our reach—like refusals to release warrant reports and releasing
minutes from closed public meetings.5
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5 Although Widdison has not argued for its application, we note
the seemingly parallel notion of “voluntary cessation” and Utah’s
recognition of the principle in InnoSys, Inc. v. Mercer, 2015 UT 80,
¶ 42, 364 P.3d 1013; see also Teamsters Local 22 v. Utah Transit Auth.,
2018 UT 33, ¶¶ 16–21, 424 P.3d 892 (rejecting a party’s argument
based on federal voluntary cessation cases because those cases were
distinguishable). Generally, “[a] plaintiff's claim is not rendered
moot by the voluntary cessation of a challenged practice which the
defendant is free to resume at any time.” Ind v. Colo. Dep’t of Corr.,
801 F.3d 1209, 1214 (10th Cir. 2015). Thus this principle may be more
aptly described as a question of whether the case is actually moot
and not an exception to mootness. See United States v. W. T. Grant Co.,
345 U.S. 629, 632 (1953) (“[V]oluntary cessation of allegedly illegal
conduct . . . does not make the case moot.”)
We have not had much opportunity to develop this principle.
Nor is it a model of clarity in other jurisdictions. We do not agree
with the concurrence that this principle is “well-developed” in Utah,
infra ¶ 97, when our jurisprudence on the doctrine consists of two
cases that simply found the petitioners’ circumstances
distinguishable from federal case law on the matter. See Mercer, 2015
UT 80, ¶ 42; see also Teamsters, 2018 UT 33, ¶¶ 16–21.
We note for future cases a number of lingering questions
surrounding the principle. Compare Ind, 801 F.3d 1209, at *1215-16
(analyzing whether the same complainant will be affected again),
with People for the Ethical Treatment of Animals v. United States Dep’t of
Agric. & Animal & Plant Health Inspection Serv., 918 F.3d 151, at *156-
59 (D.C. Cir. 2019) (analyzing only whether the challenged practice
will happen again); compare DeFunis v. Odegaard, 416 U.S. 312, 318-19
(1974) (suggesting that granting the requested relief while
maintaining the challenged practice makes the voluntary cessation
principle inapplicable), with Rosemere Neighborhood Ass’n v. U.S. Env’t
Prot. Agency, 581 F.3d 1169, 1172–75 (9th Cir. 2009) (applying
voluntary cessation to ensure a party cannot escape litigation by
giving in to one plaintiff without renouncing the challenged policy);
see also Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty.,
301 S.W.3d 196, 207–208, 207 n.17 (Tenn. 2009) (discussing the
ambiguity surrounding voluntary cessation).
Here, Widdison has challenged the Board’s actions only in
relation to herself, and she will not likely again be subject to
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B. We Have Never Rejected This Formulation of the Exception
¶25 The concurrence levels two criticisms at our invocation of
the cases that hold that the mootness exception can apply when the
actions of a party will likely cause the issue to evade review. The
concurrence argues that we have eliminated this thinking from our
jurisprudence. Infra ¶ 72. It also argues that even if we haven’t, the
cases on which we rely do not persuasively say what we have said
they say.6 See infra ¶ 104. The first assertion is demonstrably
incorrect. The second lies in the eye of its beholder, but this court has
already stated how it beholds these cases. And, since no one has
asked us to overrule that case law, the concurrence simply advises us
what its opinion would be if someone were to someday attempt to
convince us to overturn our precedent.
1. Neither Utah Transit Authority, Nor Steed, Nor Teamsters
Eliminated a Party’s Ability to Argue that We Should Hear an
Otherwise Moot Case Because the Other Party’s Actions Would
Likely Cause the Issue to Evade Review
¶26 According to the concurrence, we have, in three cases,
implicitly rejected the principle that an issue can likely evade review
because of a party’s likely actions: Utah Transit Auth., 2012 UT 75;
Steed, 2015 UT 67; and Teamsters Local 222 v. Utah Transit Auth., 2018
UT 33, 424 P.2d 892. Infra ¶ 104. And this alleged rejection is central
rescission hearings. If she were, it would be because of her own
violation of parole or future criminal behavior. We do not presume
that will recur. See Honig v. Doe, 484 U.S. 305, 320 (1988) (“[W]e
generally have been unwilling to assume that the party seeking relief
will repeat the type of misconduct that would once again place him
or her at risk of that injury.”); c.f. Legg, 2018 UT 12, ¶ 30 (stating that
the alleged possible consequences “are contingent upon [the
petitioner] again violating state law. [The petitioner] himself is
‘able—and indeed required by law—to prevent such a possibility
from occurring.’” (citation omitted).
6 The concurrence also assails this court’s precedent as “lightly
theorized,” infra ¶ 71, “less-theorized,” infra ¶ 72, “stretched,” infra
¶ 71, “unnecessary,” infra ¶ 110, and “incorrect” infra ¶ 111. Even if
we were to agree with that assessment, we would note that no one,
except the concurrence, has asked us to overrule the case law we rely
on. And we prefer to afford stare decisis weight to these cases until a
party attempts to shoulder its burden of overturning precedent.
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to most of the concurrence’s arguments. A neutral reading of those
cases demonstrates that we have not overruled cases like Anderson,
McBride, and Kearns-Tribune.
¶27 Utah Transit Authority, for one, did not address this question
head on. Indeed, it referenced McBride and Kearns-Tribune in its
analysis. 2012 UT 75, ¶ 37 nn.21–22. Steed, on the other hand, did face
this question head on, but it expressly acknowledged that our case
law recognizes that a party’s actions can cause an issue to evade
review. 2015 UT 76, ¶ 11 n.9. And it did so in the face of a concurring
opinion that said we should remove that principle from our cases.
Id.; id. ¶ 20 (Lee, J., concurring). Finally, Teamsters did not opine on
this mootness exception, let alone overturn the cases we cite. See
generally 2018 UT 33.7
¶28 In Utah Transit Authority, a union sought to compel the
arbitration of disputes arising out of its collective bargaining
agreement with the Utah Transit Authority. 2012 UT 75, ¶ 6. Before
this court could rule on the issue, the parties agreed on the terms of
their new collective bargaining agreement. Id. ¶ 9. Both parties urged
us to nonetheless rule on the dispute. Id. ¶ 10. We declined. Id. ¶ 11.
¶29 We did not, as the concurrence argues, opine on our cases
that stand for the proposition that a party’s actions can cause an
issue to be likely to evade review. We did not need to address that
case law because we concluded that we did not think the issue
would repeat. Id. ¶¶ 35–36.
¶30 Instead, we outlined the three-part test for the public
interest exception that we apply today. Id. ¶¶ 30–32. We did, as the
concurrence notes, articulate the third prong of the test as involving
issues that are “inherently short in duration.” Id. ¶ 37 (citation
omitted) (internal quotation marks omitted). But we never said, as
the concurrence represents, that when we referenced issues that are
“inherently short in duration,” we were rejecting our case law that
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7 A reader might see the number of paragraphs we, and the
concurrence, spend discussing this question and think that it is a
difficult issue to resolve. It is not. Distilled to its essence, the question
is this: Did this court overrule cases standing for the proposition that
an exception to mootness applies when a party’s likely actions will
cause an issue to evade review when we: (1) cited those cases
favorably in the case the concurrence says we overruled them; and
(2) expressly declined to overrule them in a subsequent case.
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allows a party to argue that an issue is likely to evade review
because of another party’s actions. Id. (citation omitted). Quite to the
contrary, we recognized the issue in Kearns-Tribune as one that
“would evade review because public officials were likely to publish
the notes from the closed portion of the meeting before the matter
was litigated.” Id. & n.21 (citing Kearns-Tribune, 2001 UT 55, ¶¶ 32–
33).
¶31 In other words, not only did Utah Transit Authority not
overturn Kearns-Tribune, it cited it favorably. That’s a weird way for
us to overrule something. And, lest one think that was an aberration,
Utah Transit Authority did the same thing with McBride, which we
cited as an example of a “rapidly resolving issue[]” in which we had
allowed a party to successfully invoke an exception to mootness. Id.
& n.22. This makes the concurrence’s assertion that we have gone
astray by “resurrecting Kearns-Tribune, Anderson, and McBride in [a]
way [that] clearly overrides Utah Transit Authority” entirely curious.8
See infra ¶ 85. Utah Transit Authority didn’t kill these cases; it blessed
them.
¶32 The concurrence also suggests that Utah Transit Authority
holds that the mootness exception is “limited to those ‘rapidly
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8 The concurrence misstates what we said in Utah Transit
Authority when it summarizes the holding as “we held that the
exception is triggered only for ‘matter[s] of ‘inherently short’
duration.’” Infra ¶ 78 (emphasis added). We did not use the qualifier
“only,” and we did not say we were rejecting other ways an issue
might evade review. This becomes clearer if, instead of
paraphrasing, we quote the opinion.
[T]he parties [have not] shown that the matter is so
discrete or rapidly resolving as to be “capable of
evading review.” “The types of issues likely to evade
review are those that are inherently short in duration so
that by the time the issue is appealed, a court is no
longer in a position to provide a remedy.” We have
found such rapidly resolving issues in election matters,
closed political meetings, bar admissions, and abortion
cases.
Utah Transit Auth., 2012 UT 75, ¶ 37 (citations omitted).
Kearns-Tribune is the case that discussed “closed political
meetings.” And McBride held that “bar admissions” decisions would
likely evade review.
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resolving issues’ that are ‘inherently short in duration,’ as a result of
something other than ‘the parties’ actions.’” Infra ¶ 74. But the
concurrence is again rewording Utah Transit Authority, this time
taking a three-word phrase, “the parties’ actions,” and suggesting
that our description of the mootness exception included this
limitation.
¶33 But this is not what we said. We defined rapidly resolving
issues as including the “closed political meetings” discussed in
Kearns-Tribune and the “bar admissions” at issue in McBride. See Utah
Transit Authority, 2012 UT 75, ¶ 37 & nn.21, 22. We then followed
that description by saying that the dispute in Utah Transit Authority
was “not of that ilk,” id. ¶ 38, and that the dispute at issue there was
“no more capable of repetition but evading review than any of a
broad range of garden-variety disputes,” id. ¶ 39. In other words,
one of the “reasons we gave for our decision,” infra ¶ 80 n.18, was
that the issue in Utah Transit Authority did not resemble those in
Kearns-Tribune and McBride.9
¶34 Perhaps it is because the dispute in Utah Transit Authority
resolved based on the parties’ actions that the concurrence argues
that an issue cannot be “inherently short” or “rapidly resolving” if a
party’s actions cause the inherent shortness or the rapid resolution.
But that is not what Utah Transit Authority says.
¶35 Our one-sentence discussion of “the parties’ actions”
analyzed the specific facts Utah Transit Authority presented. Id. ¶ 38.
We stated that the parties “in this case” resolved their dispute and
the case was mooted as “a function of the parties’ actions in light of
an arbitration ruling.” Id. ¶ 38. This was case-specific analysis; our
application of our test to the facts presented. Simply stated, there
was nothing about the issue in Utah Transit Authority that suggested
it would be resolved by a party every time it arose. Thus, it was
unlike those cases we had favorably cited, like Kearns-Tribune and
McBride, where the exception applied because the issue was likely to
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9 The concurrence complains that our analysis elevates “short
footnote parentheticals over the actual reasons we gave for our
decision in Utah Transit Authority.” Infra ¶ 80 n.18. N.B. that the
portion of the decision we cite is found in the text of the Utah Transit
Authority decision. And it is not surrounded by parentheses. The
discussion we reference was part of the “reasons we gave for our
decision.”
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evade review. And, therefore, the exception did not apply to the
issue in Utah Transit Authority.
¶36 Even more curious is the concurrence’s argument that Steed
supports its worldview. Infra ¶¶ 104, 126, 129; see Steed, 2015 UT 76.
In Steed, this court recognized that the “traditional” approach to the
public interest exception did not focus on “collateral choices future
parties are likely to make.” Steed, 2015 UT 76, ¶ 11. However, we also
recognized the “alternative analysis” in our case law that looks at
whether the issue is likely to evade review because of the future
“likely choices” of the party. Id. ¶ 11 n.9. And despite Justice Lee’s
invitation to overturn that case law, the rest of this court explicitly
declined to overrule the alternative analysis. Id. (“Justice Lee argues
in his concurrence that we should overrule McBride. We decline to
do so.” (citation omitted)).10
¶37 Like we did in Steed, we again recognize what our case law
holds and honor stare decisis. And we, as we did in Steed, reject the
invitation to disregard our case law where we do not have a party in
front of us shouldering the burden a party faces to convince us to
relegate our precedent to the dustbin.
¶38 That a majority of this court refused to overturn this case
law in Steed exposes the audacity of the concurrence’s assertion that
under “established principles of stare decisis” we “should conclude
that the cited premises of our older cases” such as McBride and
Kearns-Tribune “have been overtaken by more recent authority” like
Steed and Utah Transit Authority. Infra ¶ 126. That is, the concurrence
faults us for not recognizing that Utah Transit Authority stealthily
overturned cases like McBride even though Steed explicitly refused to
do so. Stated differently, having failed to convince this court to
overturn McBride in Steed, the concurrence posits that we somehow
did so anyway and that we should give stare decisis respect to a
conclusion we explicitly refused to reach.
_____________________________________________________________
10Had we, as the concurrence asserts, overturned this case law in
Utah Transit Authority, we would not have needed to engage in this
discussion in Steed. At the very least, one would have expected the
Steed concurrence to say what the concurrence says here: that Utah
Transit Authority had already eliminated that variant of the mootness
exception. Notably, the Steed concurrence argued that “I would
overrule McBride” and not that Utah Transit Authority had already
done the deed. Steed, 2015 UT 76, ¶ 20 (Lee, A.C.J., concurring in part
and concurring in the judgment).
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Opinion of the Court
¶39 The concurrence avers that overruling prior case law
“doesn’t depend on whether we drafted a [list] of every prior
inconsistent holding.” Infra ¶ 80. We understand the principle that
an opinion may not anticipate all of the cases its holding will
implicate. But that principle must certainly lose its potency when the
holding discusses and favorably cites those cases. Again, expressly
relying on cases like we did in Utah Transit Authority would be a
funny way to implicitly overrule them. And an odd way of identifying
them as a “prior inconsistent holding.”
¶40 The concurrence asks us to take a leap of faith and believe
that the five justices of the unanimous court in Utah Transit Authority
mistakenly cited Kearns-Tribune and McBride to explain the
exception, when, in fact, they meant to overturn those cases. And the
concurrence wants us to believe that the unanimous court in State ex
rel C.D. was daydreaming when it cited Kearns-Tribune and Anderson
as examples of issues falling under the exception. 2010 UT 66, ¶ 14.
And that we should believe that occurred because those justices
“[in]correctly believed that [those] older cases were reconcilable with
our more recent articulation of the law.” See infra ¶ 80. This is
beyond anything we could logically agree with.
¶41 The court in Utah Transit Authority specifically explained
that the issue in Kearns-Tribune was the type of issue that was likely
to evade review under the exception “because public officials were likely
to publish the notes from the closed portion of the meeting before the
matter was litigated.” Utah Transit Auth., 2012 UT 75, ¶ 37 n.21
(emphasis added). And it would be incomprehensible to think that
the Utah Transit Authority court misunderstood that the issue in
McBride would “evade review” because of the actions of a party.
¶42 Most importantly, as explained, we had the chance to
correct this supposed “mistake” in Steed. Indeed, as the concurrence
says, “The fact that a court may believe its older precedents are
reconcilable with a recent holding likewise does not prevent that
court from later acknowledging that the older precedents were
always irreconcilable.” Infra ¶ 83. But in Steed we had the chance to
acknowledge the “mistake,” and instead we did the complete
opposite. We expressly rejected the dissent’s imploration to overrule
our case law that allows a party to show that an issue is likely to
evade review because of a party’s actions. Steed, 2015 UT 76, ¶ 11 n.9.
¶43 We simply cannot agree with the concurrence’s central
argument that somehow Utah Transit Authority held something it
didn’t say, overruled cases it used to explain the rule, and removed
from our case law a principle that we later recognized still existed.
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¶44 Finally, the concurrence argues that our opinion contradicts
Teamsters, 2018 UT 33. Teamsters did not address the relevant
question.11 In Teamsters, a group of employees sought “a declaration
_____________________________________________________________
11 The concurrence discusses the Teamsters decision at great
length. See infra ¶¶ 86–103. As part of this, the concurrence argues
that the discussion of ripeness and mootness in Teamsters defined the
“relevant controversy” as involving “this [petitioner] in this instance
at this time.” Infra ¶ 91 (emphases in original). Thus, according to the
concurrence, this means that “any attempt to allow an already-
paroled inmate to invoke an exception to the mootness doctrine will
implicate ripeness concerns” and that “future case[s] will still be
moot if the inmate has already been paroled . . . notwithstanding any
success in demonstrating” that the issue is likely to evade review
because of the Board’s likely actions. Infra ¶ 92. But this point is
misplaced. We acknowledge that Widdison’s case is moot. Here we
are asking whether an exception to mootness applies.
The concurrence also suggests that the relevant controversy
discussion from Teamsters implicates ripeness principles that prevent
us from applying our recognized exception to mootness here. It is
one thing to suggest that this is what our law should be. It is quite
another to say that is what our law actually is and apply it in a case
in which the parties have neither asked us to overturn our case law
nor provided briefing on the topic.
The concurrence suggests we are “punt[ing] the issue because
[we do] not want to deal with the messy consequences of [our]
holding.” Infra ¶ 100 n.25. The “messy consequences” only occur if
we were to read Teamsters the way the concurrence does. The
concurrence says that Teamsters can be read to say that every attempt
to hear a moot case involves ripeness concerns. And the concurrence
uses this to conclude that the variant of the mootness exception we
address here cannot coexist with Teamsters because in addition to
being moot, the dispute is unripe. If the concurrence reads Teamsters
correctly, then Teamsters overruled sub silentio every variant of the
mootness exception—even the one we all agree Utah Transit
Authority recognized and preserved—because every variant of that
exception to mootness would implicate ripeness concerns. A better
reading of Teamsters is one that recognizes that we did not apply or
discuss the mootness exception there because the parties did not
argue it. And that the ripeness concerns the concurrence raises are
dealt with by the way we articulate the mootness exception. A party
must show that the moot issue is likely to recur. Steed, 2015 UT 76,
(continued ...)
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WIDDISON v. BD. OF PARDONS AND PAROLE
Opinion of the Court
of their right to organize” in a union. Id. ¶ 1. After the district court
ordered that the employees did indeed have collective bargaining
rights, the group voted not to unionize. Id. The employer-defendant
invoked the voluntary cessation doctrine to argue that the case was
not moot in an effort to convince us to rule on the mooted question.
Id. ¶ 16. This court held that the federal voluntary-cessation cases the
employer cited were distinguishable because they involved a
defendant strategically mooting a case just long enough to get it
dismissed. Id. ¶ 17. We said nothing about our three-pronged “public
interest” exception, let alone the vitality of cases that Teamsters never
referenced.12
¶ 7. It would strain credulity to believe that we recognized an
exception to mootness that could never actually apply because every
case falling into the exception also implicates an unripe future
dispute. At the very least, nothing in Teamsters suggests that by
reciting general ripeness principles, we intended to overrule an
exception to mootness that the Teamsters parties never argued and
that opinion did not address.
12 The concurrence also suggests that Teamsters shows how our
analysis here is incorrect because the voluntary cessation discussion
in Teamsters and the public interest exception discussion in McBride
are “two different tests for analyzing the same voluntary actions of a
defendant,” infra ¶ 126, and those tests would “open[] the door to
two different results under the same set of facts.” Infra ¶ 131
(emphasis in original). Contrary to the concurrence’s description of
Teamsters, we neither applied nor adopted the voluntary cessation
doctrine in that case. We discussed it just long enough to note that a
party had asked us “to find an exception to the mootness doctrine”
based on federal case law and to “decline to do so because we
[found] those cases distinguishable.” Teamsters, 2018 UT 33, ¶¶ 16–
17. At no point in Teamsters did we even mention the case in which
we had discussed the voluntary cessation doctrine: InnoSys, Inc. v.
Mercer, 2015 UT 80. And InnoSys did not discuss voluntary cessation
in the context of our existing body of mootness jurisprudence. Id.
¶¶ 42–46.
To the extent there is tension between the voluntary cessation
doctrine and the public interest exception, that is a problem
InnoSys—and not our opinion—has created. But it is not clear that
there is real tension between the approaches. Our “likely to evade
review” case law does not require that the issue be likely to recur
(continued ...)
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Opinion of the Court
2. Contrary to the Concurrence’s Assertion, McBride, Anderson, and
Kearns-Tribune Support the Proposition for Which We Have
Repeatedly Cited Them
¶45 The concurrence also assails our reliance on McBride,
Anderson, and Kearns-Tribune. Infra ¶ 104. And the concurrence levels
a bevy of reasons why we should not find them persuasive. But it is
the concurrence’s uninvited attempt to read these cases out of our
jurisprudence that we find unpersuasive.
¶46 The concurrence disapproves of our reliance on McBride.
Infra ¶ 112. Although the concurrence recognizes that in McBride we
held, as we recognized in Steed, that an issue could evade review
“because of the decisions those affected by the issue in the future
would likely make,” Steed, 2015 UT 76, ¶ 11 n.9, the concurrence
dismisses McBride because it is allegedly “in tension” with our case
law, infra ¶ 112. As described above, it is not.
¶47 The concurrence also takes issue with that fact that in
McBride we said the issue would evade review because an examinee
“could” just retake the exam. Infra ¶ 118; see McBride, 2010 UT 60,
¶ 15. This was consistent with the way the test had been described in
other instances: that the issue must be “capable” of evading review,
not “likely” to do so. See, e.g., Steed, 2015 UT 76, ¶ 8; State ex rel. C.D.,
2010 UT 66, ¶ 13; Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989).
In Steed, we clarified that the test is that the issue must be “likely” to
evade review, not just capable of evading review. 2015 UT 76, ¶ 8.
And so the concurrence is correct that Steed revised McBride and
other cases that articulated the test as “capable of evading review”
instead of likely evading review. This was an important clarification.
But it does not change what the concurrence concedes: McBride
stands for the principle that an issue can evade review because of a
between the same parties, Ellis, 2000 UT 101, ¶¶ 26, 27, 27 n.5, 16
P.3d 1233, but the voluntary cessation doctrine might, see Ind, 801
F.3d 1209 at 1214 (10th Cir. 2015) (analyzing voluntary cessation in
terms of whether the same complainant would be affected again).
And to the extent that this tension exists, there is no need to take it
up in a case where no party has asked us to resolve the tension by
overruling the mootness exception, we have no briefing from the
parties on the question, and we do not actually apply the exception
to hear the case.
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WIDDISON v. BD. OF PARDONS AND PAROLE
Opinion of the Court
party’s actions. Steed just instructed us that it must be likely to escape
review.
¶48 The concurrence then attacks the premise of McBride
because, in that case, we said we were exercising our “discretion” to
consider whether the case was moot. Infra ¶ 113. Since Utah Transit
Authority held that mootness was rooted in constitutional soil, the
concurrence argues that discretion cannot be the basis of a mootness
exception. Infra ¶ 113–15.
¶49 Although we used the word discretion, we did not simply
say that we would exercise our discretion to hear a moot case. We
applied the same three-part analysis that we apply here. McBride,
2010 UT 60, ¶ 15. We did not rule in McBride’s case just because we
thought we should. We ruled in McBride’s case because the issue
was one of public importance, that was likely to recur, but because of
the actions of one of the parties, it would evade review. Id.
¶50 The concurrence also argues that Anderson does not provide
a “firm foundation” for our holding. Infra ¶ 109. It bears noting that
the concurrence does not dispute that Anderson stands for the
proposition that an issue would evade review because “once a
challenge is initiated, law enforcement will have every incentive to
immediately file the documentation supporting the search, thereby
mooting the particular claim,” Anderson, 2006 UT 79, ¶ 11. That is, it
supports the proposition for which we cite it: that we have
recognized that a case may be likely to evade review because of a
party’s likely actions.
¶51 But, similar to its concern with McBride, the concurrence
criticizes our reliance on Anderson because in that case we said that
we could hear a “claim that, while technically moot, deserves
review.” Id. The concurrence sees the word “deserves” (italicized in
its version, infra ¶ 109) as indicating that the Anderson court was
treating mootness as a “matter of convenience” without due respect
to justiciability. Infra ¶ 113. However, just like in McBride, the
Anderson court applied the established three-pronged mootness
exception and there is nothing to suggest the court deviated from it.
See Anderson, 2006 UT 79, ¶¶ 11–12. We were not, as the concurrence
suggests, just picking and choosing which cases we wanted to hear
without regard to any legal standard. We stuck to the test.
¶52 The concurrence also dismisses Anderson because it believes
that we could have decided the case on grounds other than
mootness. Infra ¶¶ 110–111. According to the concurrence, we could
have concluded that the case was not moot because Anderson asked
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Opinion of the Court
for relief beyond that which had been granted by the time his case
was heard. Infra ¶ 110. That might be true, and is perhaps interesting
as a historical factoid, but it does not speak to the precedential value
of the analysis we employed. In other words, the concurrence would
have us disregard what we said about mootness because if a party
had raised the argument the concurrence identifies nearly fifteen
years after we issued the opinion, we might not have had to consider
whether the public interest exception applied to Anderson’s case.
But we did analyze whether the issue was moot, and, in the course of
that analysis, we considered whether a party’s actions were likely to
cause the issue to avoid review.
¶53 Finally, the concurrence aims its fire at Kearns-Tribune. Infra
¶ 105. By way of reminder, we cited Kearns-Tribune favorably in both
State ex rel. C.D. and Utah Transit Authority for the proposition “that a
closed meeting in violation of the Public Meetings Act was a matter
that would evade review because public officials were likely to
publish the notes from the closed portion of the meeting before the
matter was litigated.” State ex rel. C.D., 2010 UT 66, ¶ 14; Utah Transit
Auth., 2012 UT 75, ¶ 37 n.21.
¶54 Despite this favorable treatment, the concurrence finds our
reliance on Kearns-Tribune “problematic” because the issue in Kearns-
Tribune had been ruled on by the district court. Infra ¶ 107.
According to the concurrence, Utah Transit Authority “establishes”
that a party that receives a district court ruling cannot argue that the
issue is likely to evade review. Infra ¶ 107. Utah Transit Authority did
not speak to the question so definitively as to establish a hard and
fast rule. See 2012 UT 75, ¶ 38. Rather, it was just one of the facts we
relied on to conclude that the issue was not likely to evade review.
See id.
¶55 Indeed, the sum total of our discussion of this new “rule”
consists of: “Moreover, the parties actually obtained a judgment
from the district court, indicating that this is not one of those discrete
issues that will most often be resolved before a court can address the
conflict.” Id. At no point did we describe this as a rule or a conclusive
factor. Nor could we have without dealing with prior cases in which
we recognized a mootness exception where the issue became moot
after the lower court had ruled, but before an appellate decision. See,
e.g., Ellis, 2000 UT 101, ¶ 27 (applying this mootness exception to an
election dispute after a district court ruled on the issue).
¶56 The concurrence’s attempt to bury our case law while it is
still alive is unavailing. No one has asked us to overturn it, and
nothing that the concurrence levels at it convinces us that we should.
19
WIDDISON v. BD. OF PARDONS AND PAROLE
Opinion of the Court
We respect stare decisis principles and stick with our case law.13 As
such, we continue to recognize — as we have several times before, —
that it is possible for a party show that an issue is likely to evade
_____________________________________________________________
13 The concurrence contends that we disregard principles of stare
decisis. Our disagreement with the concurrence is not about stare
decisis but about the meaning of the case law that stare decisis directs
us to respect. The concurrence thinks our precedent says one thing.
We think that case law says something different. We do not disagree
that stare decisis respect should be given to our case law. We just
disagree about what that case law says.
The concurrence also opines that we read the cases the way we
do “all so [the majority] can cling to its view of mootness and judicial
power.” Infra ¶ 80 n.18. The concurrence doesn’t cite anything for its
assertion that the majority has a preferred view of mootness and
judicial power. Presumably, the concurrence is thinking of a
concurring opinion in In re Gestational Agreement, which one member
of this majority wrote and another joined. 2019 UT 40, ¶¶ 56–98, 449
P.3d 69 (Pearce, J. concurring, joined by Himonas, J.). But that
concurring opinion did not set forth a preferred “view of mootness
and judicial power.” The question there was whether the Utah
Constitution mandated that the exercise of “judicial power required
adversity between parties.” Id. ¶ 60. The Gestational Agreement
concurrence noted the lack of a “case or controversy” requirement in
the Utah Constitution and pointed to a number of examples from the
time of statehood where courts acted in cases that lacked adverse
parties. Id. ¶ 63. Along the way, the Gestational Agreement
concurrence expressed some concerns with the originalist analysis
Utah Transit Authority employed to reach its conclusions about the
meaning of the term “judicial power” in the Utah Constitution. Id.
¶¶ 88–92. That concurrence ultimately opined that it “appears that
there is work to be done before we can be so definitive about the
meaning of our constitution.” Id. ¶ 93. So while that concurrence
raised doubts about the originalist basis for the Utah Transit
Authority court’s conclusion about the scope of the judicial power,
the “view” it expressed was that we need do the work necessary to
ensure that we have accurately described what the people of Utah
would have understood the term “judicial power” to mean when
they adopted our state constitution. As described herein, our dispute
with the concurrence is not over what the mootness exception
should be, it is over what we have already said that exception is.
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Opinion of the Court
review because a party’s likely future action will cause any one
litigant to only be affected for a brief time. See Steed, 2015 UT 76, ¶ 7.
C. Widdison Has Not Shown That This Issue
Is Likely to Evade Review
¶57 Widdison offers a number of reasons why the issues she
asks us to address are likely to evade review, but none of them are
sufficient to meet her burden of persuasion.14 See State v. Black, 2015
UT 54, ¶ 12, 355 P.3d 981 (suggesting the burden is on the party
seeking the exception to show the elements of the exception).
¶58 Widdison first contends that the Board strategically paroled
her in order to moot this case and avoid an adverse appellate
decision with precedential effect. Beyond the timing of her parole,
Widdison does not point to any information to suggest she was
paroled specifically for the purpose of preventing this court from
addressing the issues she raises. Nor does she offer anything to
suggest that even if that were the case, it was part of a Board effort to
systemically grant parole to keep those issues from this court.15
_____________________________________________________________
14 As an initial matter, we note that Widdison did receive a ruling
from the district court. In Utah Transit Authority, we concluded that
the fact that “the parties actually obtained a judgment from the
district court” indicated that “this is not one of those discrete issues
that will most often be resolved before a court can address the
conflict.” 2012 UT 75, ¶ 38. Moreover, almost five years passed from
the day Widdison filed her petition to the day her release from
prison mooted the issue. Simply stated, this case has neither been
brief nor entirely evaded review.
15 The concurrence claims that our analysis of Widdison’s
argument “establish[es] . . . a new legal standard” for the mootness
exception in considering whether “a specific defendant is
systematically surrendering whenever a certain issue is appealed.”
Infra ¶ 125. The concurrence further complains that such an inquiry
destroys the principles of justiciability. Infra ¶ 132. This misreads our
decision.
We address the question of whether the Board is engaging in
stratagem not because that is a new element of the test, but because it
is the argument Widdison raises to meet the existing test. Widdison
argues that the issue is likely to evade review because she believes
that the Board is settling cases to avoid an adverse ruling. One
should not conclude, as the concurrence does, that because this
(continued ...)
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WIDDISON v. BD. OF PARDONS AND PAROLE
Opinion of the Court
¶59 Second, Widdison argues that inmates face a number of
hurdles if they want to place an issue before this court; primarily,
they may lack experienced counsel to press the appeal. We recognize
these difficulties. But we have noted that “the fact that the process is
challenging does not mean that the issue is ‘likely to evade review.’”
Poulton, 2016 UT 9, ¶ 7. Widdison carries a burden of convincing this
court that the hurdles she notes are likely to prevent us from having
another opportunity to address the issues she raises. She does not
connect these dots, and indeed, her argument runs contrary to this
court’s experience. Despite the very real difficulties inmates may
have to confront, we routinely are presented with appeals and
petitions that inmates file with the assistance of counsel.
¶60 Third, Widdison has not shown that historically these cases
fail to be reviewed. This would help establish that the issue at hand
is likely to continue to evade review. But, to the contrary, both we
and the court of appeals continue to have cases on our dockets that
address the type of questions Widdison wants to place before us. See,
e.g., Neese, 2017 UT 89 (addressing due process claims relating to
Board hearings); Blanke v. Bd. of Pardons & Parole, 2020 UT 39, 467
P.3d 850 (same); Brechlin v. Bd. of Pardons & Parole, 2017 UT App 121,
402 P.3d 14 (same); Harmon v. Bd. of Pardons & Parole, 2017 UT App
115, 402 P.3d 1 (same); Stewart v. Bd. of Pardons & Parole, 2015 UT
App 246, 360 P.3d 800 (same).
¶61 Finally, Widdison argues that the precise issue she raises has
not been reviewed and is not likely to be reviewed because it relates
to a rescission hearing. We fail to see anything distinctive about
parole rescission hearings that would make these hearings more
likely to evade review than other types of Board hearings. And
Widdison does not give us any basis for that conclusion.
might be one way of demonstrating that an issue is likely to evade
review, that it is a necessary part of the inquiry. Cf. Our Lady of
Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2063 (2020) (noting
that the “recognition of the significance of [some] factors in [one]
case [does] not mean that they must be met . . . in all other cases”).
And our analysis of Widdison’s arguments does not touch the
question of whether mootness is a constitutional limitation. We are
simply analyzing Widdison’s arguments under the established test:
whether the issue is likely to evade review because of the brief time
any one litigant is affected.
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Opinion of the Court
¶62 Simply stated, Widdison has not demonstrated that this
issue is likely to evade review. We would share Widdison’s concern
if it appeared that the Board was consistently paroling inmates in
order to avoid review of its practices. And it is conceivable that a
future litigant could show a pattern that would mark these issues as
likely to evade review. But Widdison has not made that showing
here.
¶63 Recognizing the high standard the third factor imposes,
Widdison invites this court to “extend the public interest exception
to include those cases . . . [where] the evading review is caused by or
controlled by a respondent to avoid an adverse appellate decision.”
She also asks us to enlarge the exception to cover “whenever an
inmate petitioner . . . brings claims of arbitrary and capricious acts by
the Board.”
¶64 As to the first invitation, as discussed above, Utah case law
already recognizes that a party’s likely actions may cause an issue to
evade review. Widdison has simply not met her burden of
demonstrating that the Board’s actions make it unlikely that the
issue will evade review.
¶65 As to the second, Widdison’s argument could be read as
asking us to disregard our requirement that the issue be likely to
recur and recognize an exception to mootness based solely on the
strength of the public interest the matter implicates. We have honed
our exception over several decades and numerous cases. Widdison
does not engage with the burden a party faces when she asks us to
overturn our precedent. As a result, she fails to meet the burden
associated with asking us to depart from stare decisis principles.
¶66 Widdison’s argument could also be read as a request to
expand our exception to any case where we could envision the
matter arising again. We have rejected a similar argument. In Utah
Transit Authority, we held that if we recognized an exception in “any
of a broad range of garden-variety disputes, almost all of which could
be resolved before the matter is resolved on appeal[,] . . . it would be
the exception that swallowed the rule.” 2012 UT 75, ¶ 39. We decline
Widdison’s invitation for the same reason.
CONCLUSION
¶67 The Board granted Widdison the relief she asked this court
to order. Her case is therefore moot. Widdison has not demonstrated
that the public interest exception applies. We accordingly dismiss the
appeal as moot and permit the district court’s grant of summary
judgment to stand.
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WIDDISON v. BD. OF PARDONS AND PAROLE
A.C.J. LEE, concurring in the judgment
ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:
¶68 I concur in the majority’s decision to dismiss this case as
moot but write separately to register my disagreement with its
substantial reformulation of our case law in this important field. The
majority rightly deems the case moot on the ground that the Parole
Board awarded appellant Widdison all the relief that her lawsuit
sought to advance—early release from prison on parole. This is a
classic mooting event. When a defendant accedes to a plaintiff’s
demands and confers the relief sought in her complaint, the case is
moot because the court’s decision can no longer affect the parties’
interests in the case. The majority agrees. In explaining why the case
is moot, however, the court repudiates our recent precedent and
overrides the clarification it has offered.
¶69 As an initial matter, the court correctly states the elements of
the established exception to the rule requiring dismissal of moot
controversies. It says that “we will decide a moot issue when a
litigant can demonstrate that the issue will ‘(1) affect the public
interest, (2) be likely to recur, and (3) because of the brief time that
any one litigant is affected, be likely to evade review.’” Supra ¶ 14
(quoting State v. Steed, 2015 UT 76, ¶ 7, 357 P.3d 547). The court
breaks new and problematic ground, however, in describing the
third element of the test. Citing a few of our older cases, the majority
claims that issues can evade review not just “because of the intrinsic
temporary nature of the issues presented,” supra ¶ 24, but also
“because of the likely actions of a party,” supra ¶ 20 (citing Kearns-
Tribune Corp. v. Salt Lake Cnty. Comm’n, 2001 UT 55, 28 P.3d 686;
Anderson v. Taylor, 2006 UT 79, 149 P.3d 352; and McBride v. State Bar,
2010 UT 60, 242 P.3d 769).
¶70 This is not our law. Our exception16 to the mootness
doctrine is implicated only in those cases involving an issue that by
_____________________________________________________________
16 The parties and the majority refer to this as the “‘public
interest’ exception”—though even the majority views this
formulation as more confusing than helpful. See supra ¶ 14; see also
Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT
75, ¶ 33, 289 P.3d 582 (calling “[t]his label . . . more confusing than
helpful, as it implies some controlling significance in the public
interest in the question presented for review,” and resolving, “going
forward,” to “refer simply to the notion of an ‘exception’ to the
mootness doctrine”).
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A.C.J. LEE, concurring in the judgment
its nature is so rapidly resolving that it is likely to evade review. See
Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT
75, ¶ 37, 289 P.3d 582. Granted, we have also recognized that the
strategic, voluntary acts of a defendant can justify judicial
consideration of a case that may appear to be moot. But we have
articulated separate standards for this sort of showing. And we have
clarified that satisfaction of these standards doesn’t sustain the
above-noted exception—it establishes that the case is not moot under
the doctrine of voluntary cessation. See Teamsters Local 222 v. Utah
Transit Auth., 2018 UT 33, ¶¶ 16–17, 424 P.2d 892.
¶71 Admittedly, our older cases are not a model of clarity. But
much of the confusion and imprecision is a relic of an era in which
we sometimes treated mootness as a mere “matter of convenience”
that we could redefine or avoid as a matter of “judicial discretion”—
in ruling on moot cases merely because we thought they “affect[ed]
the public interest.” Utah Transit Auth., 2012 UT 75, ¶¶ 27, 30, 31, 31
n.18 (acknowledging but expressly repudiating that view and
overruling past decisions that embraced it). In that era, we
concededly handed down a few opinions that were only lightly
theorized, and not always easy to reconcile with our more recent
refinements. And these refinements have occasionally stretched to
reconcile our holdings with older decisions.17
¶72 What is clear, however, is that the framework of our recent
decisions is incompatible with the approach established by the
majority today. Our decisions in Utah Transit Authority, Teamsters,
and others, which we should follow as a matter of stare decisis,
expressly reject specific tenets of the majority opinion. They make
clear that the “likely” or “strategic” actions of a party do not create
an alternative path to satisfying the third prong of our mootness
exception, but rather implicate the doctrine of voluntary cessation.
They also emphasize that in such circumstances, the relevant
_____________________________________________________________
17 See State v. Steed, 2015 UT 76, ¶¶ 11, 11 n.9, 357 P.3d 547
(asserting that while we had “traditionally focused on whether the
issue itself was of a rapidly resolving nature . . . and not on whether
the issue is likely to evade review by virtue of collateral choices
future parties are likely to make,” we had “departed from our
traditional approach” in McBride v. State Bar, 2010 UT 60, 242 P.3d
769); Utah Transit Auth., 2012 UT 75, ¶ 37, 37 n.22 (claiming that
McBride had established that bar admissions were an example of a
“rapidly resolving issue[]”).
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WIDDISON v. BD. OF PARDONS AND PAROLE
A.C.J. LEE, concurring in the judgment
controversy is the specific dispute between the current parties at the
time we decide the case, not the issue generally in the abstract. And
they demonstrate that it is the defendant’s behavior that might be
impermissibly strategic—not the plaintiff’s. To the extent the
framing or language of our older and less-theorized case law is
inconsistent with these principles laid out in Utah Transit Authority,
Teamsters, and others, the older cases should be deemed to have been
overtaken by more recent authority.
¶73 But the majority does the opposite. It overrides our clearer
and more recent decisions by giving the broadest possible reading to
our older, vaguer case law. In so doing the court establishes an
exception to mootness that swallows the rule and creates two
contradictory lines of precedent. It suggests that a plaintiff seeking to
show that an issue is “likely to evade review” can do so by
producing evidence that the defendant has acted “specifically for the
purpose of preventing this court from addressing the issues she
raises.” See supra ¶ 58.
¶74 This is a troubling intimation. Even if Widdison had
“convinced us that if we do not decide her case, we will likely
deprive ourselves of any opportunity to review the types of issues
she raises,” supra ¶ 3, that would not have established our
jurisdiction. Our exception to mootness is limited to those “rapidly
resolving issues” that are “inherently short in duration,” as a result of
something other than “the parties’ actions.” Utah Transit Auth., 2012
UT 75, ¶¶ 37–38 (emphasis added) (citation omitted) (internal
quotation marks omitted). This is because jurisdiction is not a
function of whether “the question presented is sufficiently important
or interesting to merit our attention and to justify the clarification of
Utah law through publication of an opinion.” Id. ¶ 17. Rather, it is a
matter circumscribed by our “judicial power” to “hear and
determine controversies between adverse parties.” Carlton v. Brown,
2014 UT 6, ¶ 29, 323 P.3d 571 (citation omitted) (internal quotation
marks omitted). The notion that we would come to a different
justiciability determination if we believed a defendant to be acting
“systemically” to “keep [an] issue[] from this court,” supra ¶ 58, or to
“deprive” us of an opportunity to review a specific issue, supra ¶ 3,
sounds in the discretionary theory of mootness that we forcefully
repudiated in Utah Transit Authority. See 2012 UT 75, ¶¶ 19–27. In
deciding the case on these grounds, the majority effectively
overrules a substantial body of our recent case law and establishes a
newly minted standard that lacks support in any prior decision.
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¶75 I elaborate on my concerns below. First, I highlight holdings
in Utah Transit Authority, Teamsters, and other decisions that are
ignored or overridden by the majority opinion. Then I address the
cases the court cites in support of its contrary approach, showing
that they mostly do not support the majority’s holding and have
been overtaken by more recent decisions to the extent they do. And I
close with some observations about the doctrine of stare decisis and
its implications for our decision in this case.
I. Utah Transit Authority and Teamsters
¶76 The majority opinion holds squarely for the first time that a
case can be deemed likely to evade review “because of the likely
actions of a party.” Supra ¶ 20. In so doing it eviscerates Utah Transit
Authority v. Local 382 of Amalgamated Transit Union, 2012 UT 75, 289
P.3d 582, and its explicit cabining of our mootness exception. It also
subverts our holding in Teamsters Local 222 v. Utah Transit Authority,
2018 UT 33, 424 P.3d 892 by (1) establishing an expanded definition
of “likely to evade review” that is immune to ripeness concerns and
separate and distinct from the doctrine of voluntary cessation, and
(2) redefining both the relevant “controversy” and “likely actions of
a party.”
A. Utah Transit Authority
¶77 In Utah Transit Authority, we redefined and limited the
judicial exception to the mootness rule in Utah. We began by noting
that our case law had “long endorsed” the position that “[m]ootness
is a constitutional principle” that speaks to limits on our “judicial
power” under article VIII of the Utah Constitution. Utah Transit
Auth., 2012 UT 75, ¶¶ 18–20, 27.18 We rejected the parties’ invitation
to treat the mootness doctrine as a mere “matter of convenience” that
Utah courts may redefine or avoid as a matter of “judicial
discretion.” Id. ¶¶ 16, 25, 27, 33. And we established specific
elements that must be established for a court to exercise jurisdiction
over a case that has become moot—a showing that the issue in
question “(1) . . . 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.
_____________________________________________________________
18 See also In re Gestational Agreement, 2019 UT 40, ¶ 12, 449 P.3d 69
(“‘[J]udicial power’ in Utah has traditionally been limited to the
adjudication of disputes, and where no dispute between opposing
parties exists, the court is without jurisdiction.” (emphasis added)).
27
WIDDISON v. BD. OF PARDONS AND PAROLE
A.C.J. LEE, concurring in the judgment
¶78 We also clarified the third element of our test. We stated that
this last prong focuses on the nature of the question presented,
requiring a showing that the issue is “so discrete or rapidly
resolving” that it evades review. Id. ¶ 37. And we explained that
“[t]he types of issues likely to evade review are those that are
inherently short in duration so that by the time the issue is appealed,
a court is no longer in a position to provide a remedy.” Id. (citation
omitted)(internal quotation marks omitted). In dismissing the
dispute in Utah Transit Authority (an attempt to compel arbitration
under an old collective bargaining agreement after the negotiation of
a new one), moreover, we held that the exception is triggered only
for “matter[s] of ‘inherently short’ duration.” Id. ¶ 38 (emphasis
added).
¶79 The majority concedes these points. But it claims that we
never disavowed earlier cases that seemed to “allow[] a party to
argue that an issue is likely to evade review because of another
party’s actions.” Supra ¶ 30. The court reaches that conclusion on the
ground that we never specifically “opine[d]” on the earlier cases.
Supra ¶ 29. Because Utah Transit Authority cited McBride v. State Bar,
2010 UT 60, 242 P.3d 769, and Kearns-Tribune Corp. v. Salt Lake County
Commission, 2001 UT 55, 28 P.3d 686, favorably in footnotes, the
majority also concludes that Utah Transit Authority couldn’t have
cabined those decisions. See supra ¶ 27 n.7.
¶80 I don’t follow. In Utah Transit Authority, we expressly
clarified that it is not enough to show that a dispute has been
resolved as “a function of the parties’ actions.” 2012 UT 75, ¶ 38
(emphasis added). And we held that because “the parties [had]
actually obtained a judgment from the district court” on their
dispute, the question of arbitrability was “not one of those discrete
issues that will most often be resolved before a court can address the
conflict.”19 Id. Sure, we “never said,” that we were overruling any
_____________________________________________________________
19 The majority claims that the above-quoted language is actually
“not what we said” in Utah Transit Authority, supra ¶ 33—that I am
somehow “misstat[ing]” or “rewording,” supra ¶¶ 31 n.8, 32, our
holding in that case. But the majority cannot erase our reasoning in
Utah Transit Authority just because it does not like it. Nor can it do so
because it prefers the reasoning of the cases Utah Transit Authority
cited in summarizing our case law. Yes, in Utah Transit Authority we
listed several areas in which we had found an exception to mootness.
2012 UT 75, ¶ 37. And in footnote parentheticals, we implicitly
(continued ...)
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and all holdings inconsistent with our latest decision. Supra ¶ 30, But
that is of no moment. The controlling, undisputed point is this: We
held that the situation in Utah Transit Authority was “not some matter
of ‘inherently short’ duration” because the situation was resolved as
“a function of the parties’ actions.”20 2012 UT 75, ¶ 38. That is the
recognized that a few of those issues had qualified for the exception
to mootness based on the actions of the parties. Id. ¶ 37 & nn.21–22.
But in the body of the opinion where we explained our holding, we
squarely characterized these cases as “types of issues likely to evade
review” because they were “rapidly resolving issues” of “inherently
short . . . duration.” Id. ¶ 37 (emphasis added) (citation omitted)
(internal quotation marks omitted). And we immediately went on to
hold that the issue in Utah Transit Authority was “not of that ilk,”
because the controversy had been mooted as “a function of the
parties’ actions” rather than because it was “some matter of
‘inherently short’ duration.” Id. ¶ 38 (emphasis added).
At the end of the day, the majority is trying to elevate short
footnote parentheticals over the actual reasons we gave for our
decision in Utah Transit Authority. See supra ¶ 54–55 (claiming that
the second reason we gave for our holding—that the fact the parties
had “’actually obtained a judgment from the district court,’”
(quoting Utah Transit Auth., 2012 UT 75, ¶ 38) indicating it was “’not
one of those discrete issues that will most often be resolved before a
court can address the conflict,’” (quoting Utah Transit Auth., 2012 UT
75, ¶ 38) “did not speak to the question so definitively as to establish
a hard and fast rule”) The majority is thus diminishing or outright
rejecting the only two reasons we gave for our holding in Utah
Transit Authority—all so it can cling to its view of mootness and
judicial power.
20 The majority suggests that I am “rewording our Utah Transit
Authority holding, . . . taking a three-word phrase, ‘the parties’
actions,’ and suggesting that our description of the mootness
exception included this limitation.” Supra ¶ 32. But the majority
misreads Utah Transit Authority. In that case we first defined matters
capable of evading review as those sufficiently and “inherently short
in duration.” Utah Transit Authority, 2012 UT 75, ¶ 37–38 (citing In re
Adoption of L.O., 2012 UT 23, ¶ 10, 282 P.3d 977) (internal quotation
marks omitted). We then described disputes resolved by “the
parties’ actions” as matters not resolved due to the matters’
inherently short duration:
(continued ...)
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WIDDISON v. BD. OF PARDONS AND PAROLE
A.C.J. LEE, concurring in the judgment
controlling precedent on the matter.21 And the effective sweep of
that holding doesn’t depend on whether we drafted a blacklist of
every prior inconsistent holding, or correctly believed that older
[T]he parties [have not] shown that the matter is so
discrete or rapidly resolving as to be “capable of
evading review.” . . . The matter before us is not of that
ilk. Although the negotiations in this case resolved the
dispute before an appeal could be fully developed and
decided, that result is a function of the parties' actions
in light of an arbitration ruling, not some matter of
“inherently short” duration.
Utah Transit Auth., 2012 UT 75, ¶ 37–38. If a matter is resolved due to
“the parties’ actions,” then Utah Transit Authority explains that the
matter was not resolved due to its inherently short duration. A
matter resolved due to the parties’ actions therefore does not fall
within the mootness exception. So it follows that Utah Transit
Authority limits the mootness exception to exclude disputes resolved
by “the parties’ actions.”
21 According the majority, “[o]ur one-sentence discussion of ‘the
parties’ actions’ analyzed the specific facts Utah Transit Authority
presented. We stated that the parties ‘in this case’ resolved their
dispute and the case was mooted as ‘a function of the parties’ actions
in light of an arbitration ruling.’ This was case specific analysis; our
application of our test to the facts presented.” Supra ¶ 35 (citing Utah
Trans. Authority, 2012 UT 75, ¶ 38). The majority implies that this
application was therefore not a “reason[] for our decision” and thus
lacks precedential value. Supra ¶ 33. But that’s not how stare decisis
works. Precedent would serve little purpose if it simply meant
restating the same rules and applying them in new ways. See Eldridge
v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (“Stare decisis is a
cornerstone of Anglo–American jurisprudence because it is crucial to
the predictability of the law and the fairness of adjudication.”)
(citation omitted) (internal quotation marks omitted). Stare decisis
applies to any and all reasoning necessary for resolving a case. See
Michael Abramowicz and Maxwell Stearns, Defining Dicta, 57 STAN.
L. REV. 953, 968 (2005) (“A legal system that does not count decided
propositions that are necessary to the disposition as holdings is
effectively a legal system without holdings.”). Under this view, it is
beside the point whether Utah Transit Authority stated the relevant
principle when describing the doctrine or when applying it.
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cases were reconcilable with our more recent articulation of the law.
See BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 300
(2016) (“A court of last resort generally follows its decision in the
most recent case, which must have tacitly overruled any truly
inconsistent holding.” (emphasis added)); Patterson v. McLean Credit
Union, 491 U.S. 164, 173 (1989), superseded by statute on other grounds,
(noting that when “the growth of judicial doctrine” or “subsequent
changes or development in the law” have “removed or weakened
the conceptual underpinnings from [a] prior decision,” or “later law
has rendered [a] decision irreconcilable with competing legal
doctrines or policies,” the Court “has not hesitated” to overrule it).
¶81 To suggest otherwise is to say that any holding we lack the
foresight to identify, scrutinize, and dismiss today remains good
law—no matter how inconsistent it is with the principles we now set
forth. That’s not how stare decisis works.
¶82 The point can be illustrated by reference to some (in)famous
precedent from the United States Supreme Court. Korematsu v.
United States, 323 U.S. 214 (1944) was the first case to articulate a
strict-scrutiny standard of review for government action that
discriminates on the basis of race or ethnicity. See Fisher v. Univ. of
Texas at Austin, 570 U.S. 297, 316 (2013) (Scalia, J., concurring)
(explaining that “[t]he Court first articulated the strict-scrutiny
standard in Korematsu v. United States”). Since then, the Court has
applied this standard numerous times. See, e.g., Parents Involved in
Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (“It
is well established that when the government distributes burdens or
benefits on the basis of individual racial classifications, that action is
reviewed under strict scrutiny.”). Yet nobody would suggest that the
Court’s post-Korematsu strict-scrutiny case law allowed for the
government “internment” of 70,000 American citizens of Japanese
descent right up until the Court expressly overruled Korematsu in
Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018). See, e.g., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 215 (1995) (describing the
Court’s failure to faithfully apply strict scrutiny in Korematsu as
“inexplicabl[e]”); id. at 236 (“Korematsu demonstrates vividly that
even ‘the most rigid scrutiny’ can sometimes fail to detect an
illegitimate racial classification.”). By the time the Court decided
Trump v. Hawaii, it was so apparent that this holding of Korematsu
had been abandoned that the Court felt comfortable using a case it
believed “ha[d] nothing to do with” Korematsu to “make express
what [was] already obvious: Korematsu was gravely wrong the day it
was decided, has been overruled in the court of history, and—to be
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A.C.J. LEE, concurring in the judgment
clear—has no place in law under the Constitution.” 138 S. Ct. at 2423
(citation omitted) (internal quotation marks omitted).
¶83 The fact that a court may believe its older precedents are
reconcilable with a recent holding likewise does not prevent that
court from later acknowledging that the older precedents were
always irreconcilable.22 A good example is Quill Corp. v. North
Dakota, 504 U.S. 298 (1992), wherein the Court believed it was
possible to reconcile the rule of National Bellas Hess, Inc. v. Department
of Revenue of Illinois, 386 U.S. 753 (1967)—that a business must have a
“physical presence” in a state before it may be forced to collect and
remit sales and use taxes for that state—with its modern Commerce
Clause jurisprudence. Quill, 504 U.S. at 310–18. This was despite the
fact that the Court’s jurisprudence had rejected the distinction
between “direct” and “indirect” taxes on interstate commerce, id. at
310 (citation omitted) (internal quotation marks omitted), and
sustained other taxes on the ground that the targeted activity had a
“substantial nexus” with the state in question, id. at 311. The Court
finally acknowledged in South Dakota v. Wayfair, Inc. that Quill was
“flawed on its own terms” and that “the physical presence rule, both
as first formulated and as applied today, is an incorrect
interpretation of the Commerce Clause.” 138 S. Ct. 2080, 2092 (2018).
It did not matter that the court had “continue[d] to cite Bellas Hess
_____________________________________________________________
22 The majority argues that “we had the chance to acknowledge
this supposed ‘mistake’ in Steed,” but “instead . . . did the complete
opposite,” “expressly reject[ing that] our case law allows a party to
show that an issue is likely to evade review because of a party’s
actions.” Supra ¶ 42. But Steed acknowledged that McBride was a
“depart[ure]” from our “traditional approach.” State v. Steed, 2015
UT 76, ¶ 11 n. 9, 357 P.3d 547. And it declined to overrule McBride
because it was not necessary to resolve the case at hand. See id.
(resolving the case based on the “rapidly resolving nature of the
issue itself and not on the likely choices of future litigants”). In any
case, because the mere fact that we at one point failed to correct our
misapprehension about the reconcilability of our precedents does
not mean that we are precluded from doing so in the future. As I
explain, in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), the United
States Supreme Court refused to acknowledge the tension between
National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S.
753 (1967), and its other Commerce Clause jurisprudence. And that
did not prevent it from setting the record straight in South Dakota v.
Wayfair, Inc., 138 S. Ct. 2080, 2092 (2018).
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with approval” for decades alongside its other Commerce Clause
jurisprudence. Quill, 504 U.S. at 311. The Court nonetheless
concluded that Bellas Hess was irreconcilable with clearer and more
recent precedent. See Wayfair, 138 S. Ct. at 2092–96; but see supra ¶ 31
(asserting that Utah Transit Authority couldn’t have cabined McBride
or Kearns-Tribune because it “blessed” them in cursory footnotes).
¶84 Despite the majority’s protestations to the contrary, the
court today overrides important tenets of our Utah Transit Authority
decision. Instead of applying the clear holding of that case, it cites
several pre-Utah Transit Authority cases for the proposition that
“issues can evade review because of the likely actions of a party.”
Supra ¶ 20–24 (citing Kearns-Tribune, 2001 UT 55; Anderson, 2006 UT
79; and McBride, 2010 UT 60).
¶85 As noted below, there are reasons to doubt that these cases
ever stood for all that the majority claims they do. See infra Part II.
But even if they did, resurrecting Kearns-Tribune, Anderson, and
McBride in this way clearly overrides Utah Transit Authority’s explicit
limitation of the “likely to evade review” prong to cases involving
“issues” that are “so discrete and rapidly resolving” that they likely
evade judicial decision.23 The majority’s revival of Kearns-Tribune is
especially troubling. The court’s reading of this case overrides Utah
Transit Authority’s holding that the fact a district court has ruled on
an issue is strong evidence that a case does not involve the kind of
“discrete issue[]” that satisfies the exception to the mootness rule.
2012 UT 75, ¶ 38; see Kearns-Tribune, 2001 UT 55, ¶ 1 (noting that the
district court had ruled in favor of Kearns-Tribune). And this last
move is made more ironic by the majority’s invocation of Utah
Transit Authority in rejecting Widdison’s challenge. See supra ¶ 57
n.14 (acknowledging that Widdison received a ruling from the
district court and noting that Utah Transit Authority “concluded that
the fact that ‘the parties actually obtained a judgment from the
district court’ indicated that ‘this is not one of those discrete issues
that will most often be resolved before a court can address the
conflict’” (citation omitted)).
_____________________________________________________________
23 The majority claims that Utah Transit Authority both “did not
address . . . head on” its alternative likely-to-evade-review prong
and “referenced McBride and Kearns-Tribune” on this point. See supra
¶ 27. But “[t]hat’s a weird way for us to [reaffirm] something.” See
supra ¶ 31.
33
WIDDISON v. BD. OF PARDONS AND PAROLE
A.C.J. LEE, concurring in the judgment
B. Teamsters
¶86 The problems with the majority opinion are thrown into
sharper relief by our more recent mootness and ripeness decision in
Teamsters. There, we dismissed as moot a case in which the
Teamsters Union asserted a legal right to organize a group of
supervisors who had already voted not to unionize. 2018 UT 33, ¶ 1.
In so doing, we reiterated the framework of our opinion in Utah
Transit Authority—holding that it is our “duty” to dismiss a moot
controversy “even if the issue is ‘important [or] might speculatively
resurface as a point of dispute between the parties in the future.’”
Id. ¶ 9 (alteration in original) (citation omitted) (internal quotation
marks omitted).
¶87 We also elaborated on our doctrine of voluntary cessation—
the principle that a case that may appear to be moot is not moot if
the defendant has not truly ceased the challenged conduct directed
at the specific plaintiff. See id. ¶¶ 16–17. We explained that in such a
circumstance, the controversy remains live and we may review the
case. See United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)
(“[V]oluntary cessation of allegedly illegal conduct . . . does not
make the case moot.”).
¶88 Teamsters thus establishes the proper framework for
evaluating cases allegedly mooted by the “likely actions of a party”
(for strategic litigation purposes, for example). In Teamsters, the
parties made no assertion that the issue presented was a matter of
such “inherently short duration” that it evaded review. And rightly
so, as Utah Transit Authority had made clear that the voluntary
actions of a party have no bearing on the third prong of the
mootness exception. 2012 UT 75, ¶ 38. We likewise did not raise the
above-noted exception to mootness sua sponte or otherwise discuss
the case in those terms. Instead, we rejected the appellant’s request
that we consider the appeal by discussing voluntary cessation and
making two important clarifications to that doctrine—clarifications
that the majority fails to even acknowledge in reaffirming its reading
of McBride, Kearns-Tribune, and Anderson.
1. Proper Definition of the Controversy
¶89 Teamsters first explained the relationship between mootness
and ripeness and held that courts should define the scope of the
relevant “controversy” allegedly mooted by a party’s actions as the
specific action taken against the instant party at the time the court
rules on the case.
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¶90 In Teamsters, the appellant argued that the case was not
moot because “the supervisors could attempt to unionize again in
the future.” 2018 UT 33, ¶ 12. We rejected this argument “because it
[was] based on a misconception of the nature of the controversy at
issue.” Id. ¶ 13. “The relevant controversy,” we explained, “is not
whether the supervisors have some general right to unionize; it is
whether these supervisors have a right to unionize in this instance.”
Id. “And since the supervisors [had] indicated their desire to remain
unorganized for the time being,” we held that “our decision could
not affect th[o]se supervisors at th[at] time.” Id. In other words, the
appellant “want[ed] us to decide th[e] case to avert a future case.” Id.
¶ 14. But we emphasized that “such a decision would run afoul of
the doctrine of ripeness,” since that “controversy” would “involve[] a
‘hypothetical’ future date on which the supervisors could
conceivably seek to unionize again.” Id. ¶¶ 14–15; see also Salt Lake
County v. State, 2020 UT 27, ¶ 2, 466 P.3d 158 (“Under our ripeness
doctrine, courts should resolve legal issues only where the resulting
legal rule can be applied to a specific set of facts, thereby resolving a
specific controversy.” (emphasis added)); id. ¶ 3 (“[W]e have no
power to decide abstract questions . . . in the absence of an actual
controversy directly involving rights.”) (citation omitted) (internal
quotation marks omitted); id. ¶ 47 (“[O]ur case law has firmly
established that courts should not render advisory opinions, or, in
other words, answer abstract questions.”).
¶91 Teamsters thus frames the mootness inquiry in terms that
foreclose the sweeping standard endorsed by the majority. Because
the Parole Board has already given Widdison the relief she is
seeking, the case is moot because our decision cannot affect this
inmate in this instance at this time. See Teamsters, 2018 UT 33, ¶ 13.
And that determination of mootness holds notwithstanding the
hypothetical possibility that Widdison (let alone others) could
benefit from our decision in a “future case.” Id. ¶ 14.
¶92 For that same reason, future cases involving already-paroled
inmates will also be moot.24 And any attempt to allow an
already-paroled inmate to invoke an exception to the mootness
doctrine will implicate ripeness concerns. The majority suggests that
Widdison or another litigant might be able to invoke our exception
_____________________________________________________________
24 Unless, of course, future litigants are able to show that they
suffer collateral legal consequences. See State v. Legg, 2018 UT 12,
¶¶ 17, 25, 33, 417 P.3d 592.
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A.C.J. LEE, concurring in the judgment
to mootness in the future by showing that she was “paroled
specifically for the purpose of preventing this court from addressing
the issues she raises” as “part of a[n] . . . effort to systemically grant
parole to keep those issues from this court.” Supra ¶ 58. But in that
future case, the question will not be whether inmates in general
“have some general right” to the procedures Widdison seeks in her
own suit against the Parole Board. See Teamsters, 2018 UT 33, ¶ 13; see
also Salt Lake County, 2020 UT 27, ¶ 20 (“[W]here there exists no more
than a difference of opinion regarding the hypothetical application
of [the law] to a situation in which the parties might, at some future
time, find themselves, the question is unripe for adjudication.”
(citation omitted) (internal quotation marks omitted)). It will still be
whether that inmate has such rights “in [that] instance” “at [that]
time.” See Teamsters, 2018 UT 33, ¶ 13 (first emphasis added). In
other words, that future case will still be moot if the inmate has
already been paroled, for the same reasons Widdison’s case is moot
today—notwithstanding any success in demonstrating a general
strategic pattern of behavior.25
_____________________________________________________________
25 The majority contends that “[i]f the concurrence reads
Teamsters correctly, then Teamsters overruled sub silentio every
variant of the mootness exception—even the one we all agree Utah
Transit Authority recognized and preserved—because every variant
of that exception to mootness would implicate ripeness concerns.”
Supra ¶ 44, n.11. This is incorrect. The mootness exception does
create ripeness concerns—it allows courts to declare rules for
hypothetical controversies that share facts with a resolved dispute.
See Teamsters, 2018 UT 33, ¶ 15 (“A case is unripe where ‘there exists
no more than a difference of opinion regarding the hypothetical
application of a piece of legislation to a situation’ . . . . [After] a
controversy [is] mooted . . . any remaining conflict is simply unripe,
in that it involves a ‘hypothetical’ future [dispute].” (citation
omitted)). But that does not preclude the mootness doctrine from
having exemptions, see supra ¶ 24 n.5 (discussing the voluntary
cessation doctrine as a live controversy), and exceptions, see supra
¶ 14 (explaining the traditional mootness exception); see also Steed,
2015 UT 76, ¶ 18 (Lee, A.C.J., concurring) (“The traditional
exception—for matters capable of repetition but evading review—. . .
has been accepted for many decades in a long line of cases. I would
accept that exception on stare decisis grounds.”) (footnote omitted).
The mootness exception simply implies a corollary ripeness
exception—allowing courts to resolve a future, hypothetical case that
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2. Impact of Defendants’ Voluntary Actions
¶93 After discussing how to define the relevant “controversy”
under our mootness and ripeness doctrines, Teamsters made clear
that voluntary cessation is not implicated by the “likely actions” of
just any party, but by the voluntary actions of defendants.
¶94 After the supervisors in Teamsters “voluntarily” ceased
engaging in the activity that gave rise to the dispute, the appellant
asserted that the court should consider the case in light of the
allegedly “strategic litigation purpose” of that cessation. Id. ¶ 16. We
addressed this argument under a line of cases viewing “mootness
arguments with suspicion when the party claiming mootness may
have ceased its activity for a strategic litigation purpose.” Id. And we
concluded that the appellant had failed to establish this basis for
avoiding the mootness rule. Id. ¶ 18. “The classic voluntary cessation
case,” we noted, “involves a defendant who is charged with
violating a plaintiff’s legal rights and who stops just long enough to
get the action dismissed.” Id. ¶ 17. This doctrine, in other words, is
“concerned with the prospect of [a] defendant remaining free to
resume its allegedly unlawful behavior” and “being able to repeat
the process whenever the plaintiff reasserts its legal rights.” Id. And
we held that this doctrine was not implicated in the Teamsters case:
“The supervisors were not defendants who sought to moot a case
when they were sued for violating a plaintiff’s legal rights. They
were plaintiffs seeking to establish their own legal rights.” Id. ¶ 18
(emphasis added). We thus held that “the strategic pattern
contemplated in the voluntary cessation line of cases [was] not
implicated.” Id. Because we had “no reason to doubt the sincerity of
the supervisors’ decision to repudiate their initial inclination to
organize as a union,” we found that they were “unlikely to have
been influenced by any strategic attempt to evade judicial review.”
Id. ¶ 19. And we accordingly rejected the appellant’s invitation to
resolve the case on the merits.
¶95 This clarification further forecloses the majority’s approach.
The majority views McBride as standing for the proposition that we
can find an exception to our mootness rule based on the likely
shares identical facts with the mooted controversy. For that reason,
courts applying the mootness exception resolve “issues,” not
disputes. See, e.g., McBride, 2010 UT 60, ¶ 15 (in applying the
mootness exception, repeatedly describing the court’s role as an
opportunity to “address the issues”).
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actions of any party, including the plaintiff. See supra ¶ 20–22. In
particular, it claims that McBride found an exception on the ground
that “the [bar] exam was held every six months and the petitioning
applicant could just retake the exam” before we had a chance to
review the case. Supra ¶ 21. But under Teamsters, a plaintiff’s
voluntary acts are never grounds for ruling on a moot case because
no strategic litigation purpose is served by a plaintiff ending his own
controversy. 2018 UT 33, ¶¶ 16, 18–19.
3. Teamsters Governs the Issue Presented
¶96 In discussing our mootness exception, the majority
acknowledges this court’s recognition of the “parallel notion” of
voluntary cessation in InnoSys, Inc. v. Mercer, 2015 UT 80, ¶ 42, 364
P.3d 103. See supra ¶ 24 n.5. It even identifies reasons why Widdison
should lose under that doctrine. See supra ¶ 24 n.5. But it goes on to
claim that the principle of voluntary cessation is under-developed in
our case law and concludes that it is somehow not relevant to our
disposition of this case because Widdison failed to frame her
challenge in these terms. See supra ¶ 24 n.5.
¶97 I disagree on both counts. The doctrine is well-developed in
our case law, as I explain above. See supra ¶¶ 93–95 (citing Teamsters
Local 222 v. Utah Transit Auth., 2018 UT 33, ¶¶ 16–19, 424 P.2d 892).
And our legal analysis is not limited to the framing presented by
Widdison in her briefing. See McDonald v. Fid. & Deposit Co. of
Maryland, 2020 UT 11, ¶ 33, 462 P.3d 343 (holding that “we are not
limited” to the parties’ framing of the law on issues presented for
our review given that it is our “duty to say what the law is”—and
ultimately to “get the law right”); Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 99 (1991) (“When an issue or claim is properly before the
court, the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law.”).
¶98 The majority nonetheless seeks to sidestep Teamsters on the
ground that it “did not opine” on the mootness exception, supra ¶ 27,
and “said nothing” specifically about its cited likely-to-evade-review
cases, supra ¶ 44. In fact it asserts not only that Teamsters “did not
address the relevant question,” supra ¶ 44, but also that it “neither
applied nor adopted the voluntary cessation doctrine,” supra ¶ 44
n.12.
¶99 In sum, the majority is asserting that Teamsters isn’t
controlling here because (1) it didn’t really accept the validity of the
voluntary-cessation principles it discussed—it just found some
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inapposite federal case law on the subject distinguishable; (2) it
didn’t “mention the case in which we had discussed the voluntary
cessation doctrine: InnoSys, Inc. v. Mercer, 2015 UT 80,” supra ¶ 44
n.12,—a case the majority contends shouldn’t govern this situation
anyway because it, in turn, did not cite our exception-to-mootness
cases, supra ¶ 44 n.12; and (3) our “likely to evade review” case law
“does not require that the issue be likely to recur between the same
parties, but the voluntary cessation doctrine might,” supra ¶ 44 n.12
(citation omitted).
¶100 With respect to the first argument, half the mootness
analysis in Teamsters came before the court even acknowledged the
employer’s federal case law on voluntary cessation. That is, one of
the many important holdings that the majority claims is not
controlling in this case—the holding that tells us how this court must
define the “relevant controversy” when determining whether a case
is justiciable under our mootness and ripeness doctrines—was
delivered before the court ever turned to consider whether the case
was not in fact moot under the doctrine of voluntary cessation. See
Teamsters, 2018 UT 33, ¶ 13 (“Th[e] [employer’s] argument fails
because it is based on a misconception of the nature of the
controversy at issue. The relevant controversy is not whether the
supervisors have some general right to unionize; it is whether these
supervisors have a right to unionize in this instance. And since the
supervisors have indicated their desire to remain unorganized for
the time being, our decision could not affect these supervisors at this
time.”). So even if Teamsters discussed voluntary-cessation principles
only for the sake of argument, as the majority suggests, its holding
defining the “relevant controversy” for justiciability purposes is on
point and thus fully controlling here.26 The majority offers no basis
for ignoring it.
_____________________________________________________________
26 The majority also claims that it is permitted to disregard
Teamsters because it is conceding that this case is moot and is merely
deciding “whether an exception to mootness applies.” Supra ¶ 44 n.11.
Yet the ultimate question is whether we have jurisdiction to hear the
case. And the fact that the court believes one line of cases grants us
jurisdiction even though another forbids it just shows how
problematic the majority’s approach is. See infra ¶¶ 103; 131.
Teamsters, moreover, held that properly defining the relevant
controversy implicates both mootness and ripeness concerns. See
Teamsters, 2018 UT 33, ¶¶ 13–14 (“The relevant controversy is not
whether the supervisors have some general right to unionize; it is
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¶101 For similar reasons, I do not understand how the majority
can denigrate Teamsters but cite InnoSys as authoritative. Like
Teamsters, InnoSys only ever cited federal case law for support. 2015
UT 80, ¶¶ 42–43. Despite that fact, the majority has no difficulty
recognizing InnoSys as precedent on Utah’s doctrine of voluntary
cessation. Supra ¶¶ 24 n.5, 44 n.12. I cannot see how Teamsters can be
regarded as any less binding, when it began its mootness-ripeness
discussion before ever turning to federal voluntary-cessation case
law, and cited the same kinds of authorities relied on in InnoSys.
¶102 The second argument is related to the majority’s argument
for ignoring Utah Transit Authority’s clear holdings. In dismissing
Utah Transit Authority, the majority claims that the reach of the
court’s holdings is limited because Utah Transit Authority did not
expressly say it was overruling past inconsistent case law. See supra
¶ 30. Here, it claims that Teamsters’s holdings are not controlling
because Teamsters failed to mention some other case that had
previously touched on the same issue. See supra ¶ 44 n.11. Once
whether these supervisors have a right to unionize in this
instance . . . . UTA wants us to decide this case to avert a future
case—by opining that the supervisors have no legal right to
unionize. But such a decision would run afoul of the doctrine of
ripeness.”); see also Salt Lake County v. State, 2020 UT 27, ¶ 2, 466 P.3d
158 (“Under our ripeness doctrine, courts should resolve legal issues
only where the resulting legal rule can be applied to a specific set of
facts, thereby resolving a specific controversy.” (emphasis added)).
With that in mind, the majority’s proposed exception to mootness
cannot properly avoid Teamsters’s ripeness holding.
The majority’s suggestion that it can ignore Teamsters’s ripeness
holding because Widdison has neither made a ripeness argument
nor argued that our ripeness cases conflict with our mootness case
law is puzzling. Supra ¶ 44 n.11. Jurisdiction is not an argument that
can be waived or ignored by the parties. It is a limit on the judicial
power. And we have a duty to resolve any existing tensions within
our case law defining jurisdictional limits—not exacerbate them or
create new ones. Today, the majority reintroduces a previously
resolved tension between the likely-to-evade-review prong and our
ripeness case law. And such a novel exercise of judicial power merits
explanation. The court cannot properly ignore a jurisdictional defect
under our case law and punt the issue because it does not want to
deal with the messy consequences of its holding.
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again, this court’s precedents are not so weak that they lose force any
time this court fails to call out a specific case. See supra ¶¶ 80–82.
And again, it is not clear why the majority believes it significant that
Teamsters failed to reference InnoSys, given that InnoSys also relied
only on federal authority.
¶103 Finally, the majority suggests that it is not establishing two
different tests for analyzing the same set of facts (as I contend below,
see infra ¶ 131), because its likely-to-evade review prong “does not
require that the issue be likely to recur between the same parties,”
but the voluntary cessation doctrine “might,” supra ¶ 44 n.12. It’s not
very reassuring to hear that the court “might” not be establishing
two different tests for analyzing the same situation. More
importantly, there will be many situations in which a party can assert
that the issue is likely to recur vis-à-vis the other party. In fact, that
was precisely the situation in the Teamsters case. See 2018 UT 33, ¶ 11
(noting that the defendant (UTA) asked us to rule on its moot
controversy with the plaintiffs (a group of supervisors) because the
plaintiffs could “seek to unionize again in the future”). And in those
situations, both tests—Widdison and Teamsters—will be implicated.
The notion that the majority’s approach will only sometimes allow
courts to pick one justiciability test or the other is not any less
problematic.27
_____________________________________________________________
27 The majority also seeks to avoid this dual-track problem by
claiming that “[t]o the extent there is tension between the voluntary
cessation doctrine and the public interest exception, that is a problem
InnoSys—and not our opinion—has created.” Supra ¶ 44 n.12. And it
acts as though I am asking the court to reach out and resolve this
tension unnecessarily. Supra ¶ 44 n.12. This has it exactly backwards.
There is only tension in our case law because the majority insists on
resurrecting its outdated view of the likely-to-evade-review prong of
our exception to mootness. If the majority were to embrace the
mootness and ripeness principles laid out in Utah Transit Authority,
Teamsters, and others, there would be no tension between our
exception-to-mootness case law and our voluntary cessation case
law.
Normally we take up cases in order to clarify the law and
promote uniformity in its application. Today the majority does the
opposite. It goes out of its way to inject new confusion into our law
as it enhances the discretion of our courts—by allowing the likely
actions of a defendant to be analyzed under either an
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II. Kearns-Tribune, Anderson, and McBride
¶104 The majority claims to derive its formulation of the “likely
to evade review” prong of our mootness exception from three
principal decisions—Kearns-Tribune Corp. v. Salt Lake County
Commission, 2001 UT 55, 28 P.3d 686; Anderson v. Taylor, 2006 UT 79,
149 P.3d 352; and McBride v. State Bar, 2010 UT 60, 242 P.3d 769. See
supra ¶ 20–24. Kearns-Tribune does not clearly support the majority’s
new standard, however. And to the extent that it and Anderson and
McBride contain language that could do so, their analysis has been
overtaken by our more recent decisions in this field—namely, Utah
Transit Authority v. Local 382 of Amalgamated Transit Union, 2012 UT
75, 289 P.3d 582; State v. Steed, 2015 UT 76, 357 P.3d 547; and
Teamsters Local 222 v. Utah Transit Authority, 2018 UT 33, 424 P.3d
892. There is thus no basis for the majority’s creation or preservation
of an alternative “likely to evade review” prong based on the “likely
actions of a party” that is immune to ripeness concerns and separate
and distinct from our doctrine of voluntary cessation. See supra ¶ 20.
A. Kearns-Tribune
¶105 The majority claims that in the Kearns-Tribune case, the Salt
Lake County Commission released the minutes of an allegedly
unlawfully closed session “[w]hile the challenge was pending” in
order to “argue[] that the minutes’ release mooted the suit.” See supra
¶ 23. But that is incorrect. While the opinion’s mootness analysis is
cursory, there is no evidence that the Commission released the
minutes in order to moot the case. It was the newspaper that had an
interest in arguing—and did argue—that the case was moot. See
Kearns-Tribune, 2001 UT 55, ¶ 32 (“Kearns-Tribune also argues that
because the minutes of the closed portion of the meeting have
already been voluntarily released and made public, this case is now
moot, and if this court were to issue an opinion, to do so would be to
issue an advisory opinion.”). It was Kearns-Tribune, not the
Commission, that anticipated a less favorable ruling on appeal and
was seeking to preserve the district court’s interpretation of the Utah
Open and Public Meetings Act.
¶106 Even if the Commission had acted strategically,
Kearns-Tribune never held that the case qualified for our exception to
mootness because the relevant issue was “likely to evade review”
exception-to-mootness framework or a voluntary cessation
framework. This is problematic.
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due to the “likely actions of a party.” See supra ¶ 20. Instead, the
court applied our traditional approach, holding that “because of the
nature of the dispute,” the issue “could otherwise escape judicial
review.” Kearns-Tribune, 2001 UT 55, ¶ 33 (emphasis added). Our
later Utah Transit Authority opinion mistakenly claimed that
Kearns-Tribune stood for a different proposition—in a short footnote
to a sentence that briefly listed the different situations in which we
had found an exception to mootness. See 2012 UT 75, ¶ 37 n.21
(asserting without analysis that Kearns-Tribune had held that “a
closed meeting in violation of the Public Meetings Act was a matter
that would evade review because public officials were likely to
publish the notes from the closed portion of the meeting before the
matter was litigated”). But the Kearns-Tribune opinion itself does not
support that characterization. And our more recent opinion State v.
Steed corrects the record—accurately characterizing Kearns-Tribune as
a case involving an issue “inherently short in duration.” See 2015 UT
76, ¶¶ 9, 11 n.9.
¶107 The majority’s reliance on Kearns-Tribune is also
problematic for another reason. The Utah Transit Authority opinion
establishes that a plaintiff who receives a ruling from a district court
is in no position to argue that the case is likely to evade review. See
2012 UT 75, ¶ 38. Yet Kearns-Tribune did receive a district court
ruling—and thus never should have had its claim reviewed under
our mootness exception. The majority accepts the holding of Utah
Transit Authority on this issue. See supra ¶ 57 n.14 (noting that
Widdison cannot qualify for the mootness exception under Utah
Transit Authority because she “did receive a ruling from the district
court”). And it should therefore also acknowledge that
Kearns-Tribune is no longer good law on this point.
B. Anderson
¶108 The majority also relies on Anderson for its assertion that
our mootness exception applies when the actions of a party make the
case likely to evade review. See supra ¶ 22. And granted, Anderson
said that “it [was] difficult to conceive” of any claim like the
plaintiff’s “that will not become technically moot before it wends its
way through the adjudicative process.” 2006 UT 79, ¶ 11. It also
stated that “once a challenge is initiated, law enforcement will have
every incentive to immediately file the documentation supporting
the search, thereby mooting the particular claim.” Id.
¶109 But Anderson does not provide a firm foundation for the
majority’s holding. For one thing, Anderson seems to have expressly
admitted to treating mootness as a mere “matter of convenience” or
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“judicial discretion.” See id. (holding that Anderson’s claim was a
“quintessential example of a claim that, while technically moot,
deserves review”) (emphasis added); id. ¶ 10 (quoting Wickham v.
Fisher, 629 P.2d 896, 899–900 (Utah 1981) for the proposition that
“[t]he law provides no exemption from judicial scrutiny of unlawful
acts which are likely to be repeated because they do not fall within
the usual principles of standing and justiciability”). Anderson thus
applied a version of the so-called “public interest exception” that we
explicitly repudiated in Utah Transit Authority. See 2012 UT 75,
¶¶ 18–20, 27 (noting that our case law has “long endorsed” the
position that “[m]ootness is a constitutional principle” that speaks to
limits on our “judicial power” under article VIII of the Utah
Constitution).
¶110 The court revealed its fast-and-loose approach to mootness
in another way. The Fourth District Court—the defendant in
Anderson—argued that the case was moot only in the context of its
argument that Anderson lacked standing to pursue his claims. And
once we understand what Anderson’s claims were, it is evident that
Anderson conducted an unnecessary mootness exception analysis.
Yes, Anderson had initially been unable to obtain copies of the
documents that had supported the warrant authorizing the search of
his property. Anderson, 2006 UT 79, ¶ 1. And the Fourth District
Court did argue that “Anderson’s claims became moot when the
search warrant and other related documents were filed with the
court” in connection with Anderson’s lawsuit. Id. ¶ 9. But
Anderson’s lawsuit sought more relief than the release of his own
personal records. “Anderson argue[d] that the practice of issuing a
warrant without retaining copies of the warrant or the material
supporting the request for the warrant violates the . . . United States
Constitution, . . . the Utah Constitution, and Utah Code.” Id. ¶ 6
(emphasis added). He accordingly requested that we (1) “issue a
declaratory judgment enjoining this practice and declaring it to be a
violation of his constitutional rights,” (2) require the Fourth District
“to retain copies of all the search warrants it issues, as well as the
supporting material associated with those warrants,” (3) “certify a
class of similarly situated plaintiffs,” and (4) “award him his
attorney fees.” Id. (emphasis added). The Fourth District Court’s
release of Anderson’s records did not grant Anderson all the relief he
sought. For that reason alone, the case was not moot.28
_____________________________________________________________
28 None of this should be taken as an endorsement of the
Anderson court’s implicit holding that Anderson also retained
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¶111 Anderson’s mootness exception analysis was irrelevant to
the defendant’s argument, but it reached the issue anyway based on
a view of mootness and the judicial power that is incorrect under
Utah Transit Authority. Its holding cannot support the majority
opinion.29
C. McBride
¶112 McBride is the case that most clearly stands for the
majority’s alternative “likely to evade review” prong. In that case,
we held that bar exam disputes were likely to evade review because
the fact the exam was offered every six months meant that “an
aggrieved applicant could retake the Exam and be admitted to the
Bar before the issue could be litigated.” McBride, 2010 UT 60, ¶ 15.
But the McBride decision is also the case most in tension with our
recent case law. Because McBride violates the holdings of Utah
Transit Authority, Steed, and Teamsters, it likewise cannot support the
majority opinion.
1. Inconsistent with Our Jurisdictional Case Law
¶113 Even more so than Anderson, the McBride opinion was
based on the mistaken belief that mootness was simply a “matter of
convenience” or “judicial discretion.” In reaching out to rule on
McBride’s moot case, we openly declared that we were “exercis[ing]
our discretion to address the issues raised by Mr. McBride.” Id. ¶ 15
(emphasis added). Again, this approach is incompatible with the
jurisdictional approach to mootness articulated in decisions like Utah
Transit Authority and In re Gestational Agreement, 2019 UT 40, ¶ 12,
449 P.3d 69. See supra ¶ 77.
standing to pursue these other claims. It is quite possible that the
case should have been dismissed for lack of standing.
29 Contrary to the majority’s assertion, I am not suggesting that
Anderson’s precedential value is diminished because I’ve identified
an alternate ground for the court’s decision fourteen years after the
fact. See supra ¶ 52. I am noting that the fact the
exception-to-mootness analysis was completely unnecessary to the
outcome of the case is yet another indication that the Anderson Court
did not seem to share the constitutional view of mootness that this
court articulated in Utah Transit Authority (six years after we issued
that opinion).
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¶114 The majority criticizes my focus on the word “discretion.”
See supra ¶¶ 48–49. But the focus is not mine alone (or was not until
today)—it is this court’s. It was our opinion in Utah Transit Authority
that highlighted the problematic implications associated with the
word “discretion” as used in our mootness jurisprudence. See 2012
UT 75, ¶ 17 (holding that mootness is not a “purely prudential
principle of judicial discretion”); see also id. ¶ 18 (holding that
mootness is “not a simple matter of judicial convenience or ascetic
act of discretion”); id. ¶ 27 (holding that mootness is not “a mere
matter of convenience or judicial discretion”); id. (“Mootness is a
constitutional principle, not a matter left to our 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.”).
¶115 Perhaps the majority finds the word “discretion”
unproblematic because it disagrees with Utah Transit Authority’s
holding that the doctrine of mootness is a constitutional limit on the
judicial power. See supra ¶ 56 n.13 (noting that two members of this
court have “expressed some concerns with the originalist analysis
Utah Transit Authority employed to reach its conclusions about the
meaning of the term ‘judicial power’ in the Utah Constitution”). But
only two members of this court have expressed such concerns. See In
re Gestational Agreement, 2019 UT 40, ¶¶ 88–93 (Pearce, J., concurring,
joined by Himonas, J.). No amount of “concern” of two members of
this court overrules precedent. And our precedent holds that
“mootness [is] rooted in constitutional soil.”30 See supra ¶ 48; Salt Lake
County v. State, 2020 UT 27, ¶ 37 n.44, 466 P.3d 158 (“[T]he principle
against deciding abstract questions is firmly established in our case
law . . . . So even though it is possible that, in a future case, a
historical analysis of the original meaning of the Utah Constitution
_____________________________________________________________
30 The majority repeatedly claims that it will not overrule cases
“until a party attempts to shoulder its burden of overturning
precedent.” See supra ¶ 25 n.6; see also ¶ 37. But these are hollow
claims in light of this attempt to cast shade on our case law
reaffirming that the doctrine of mootness is constitutionally
imposed. And of course the majority’s standard also runs counter to
its decisions to reject Utah Transit Authority’s holding on the effect of
cases mooted as a function of the parties’ actions, see supra ¶¶ 76–88,
and disregard Teamsters’ holdings on mootness, ripeness, and the
proper framework for analyzing the “likely actions of a party,” see
supra ¶¶ 89–92.
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may lead us to rethink the way our case law has described the limits
of the judicial power, we decline to revisit that case law
unnecessarily here.”).
2. Inconsistent with the Steed Standard
¶116 It is true that our opinion in State v. Steed offered a possible
basis for reconciling McBride. See supra ¶ 71 n.17. But just as Utah
Transit Authority failed to fully grapple with the problems of
Kearns-Tribune, Steed failed to fully confront McBride.31
¶117 First, Steed openly acknowledged that McBride had
“departed from our traditional approach.” 2015 UT 76, ¶ 11 n.9. And
it affirmed our Utah Transit Authority holding that in order to qualify
for our mootness exception, an issue must be by its very nature
_____________________________________________________________
31 To be clear, my contention that Steed failed to follow its own
standard to its logical conclusion is not an attempt to relitigate Steed
or to slight the majority in that case; I fault myself for committing the
same error in Utah Transit Authority. See supra ¶¶ 71 n.17; 106; 116. In
any case, the Steed Court declined to overrule McBride on judicial
restraint grounds. See 2015 UT 76, ¶ 11 n.9 (determining that
overruling McBride was not necessary to dispose of the case and
noting that the parties had not briefed the matter).
Likewise, I am not asking the court to “take a leap of faith and
believe that five justices of the unanimous court in Utah Transit
Authority mistakenly cited Kearns Tribune and McBride to explain the
exception, when, in fact, they meant to overturn those cases.” Supra
¶ 40. I don’t advocate that Utah Transit Authority “meant” to
overturn any of those cases—as the majority notes (repeatedly), it
cited the disputed cases favorably. But just because Utah Transit
Authority respected the outcomes of the cases it cited (in listing the
types of issues that had previously been found to qualify for the
exception) does not mean that the reasoning it gave for declining to
apply the exception in Utah Transit Authority jibed with the
reasoning of those prior cases. And given the fact that (1) none of the
past cases were being challenged and (2) the main body of the
opinion characterized them as cases involving issues of “inherently
short duration” (rather than issues mooted as a “function of the
parties’ actions”), it is not surprising that the court did not
immediately recognize that the reasoning of the cases it summarized
in footnotes was at odds with the reasoning of the holding it was
issuing that day—nor is it surprising that the court did not reach out
to overrule the reasoning or the outcomes of those decisions.
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likely to evade review. See id. ¶ 1 (holding that Steed’s case did not
warrant the application of our mootness exception “because a freeze
order under the Asset Preservation Statute is not inherently short in
duration and thus is not likely to evade review”).
¶118 Steed also rearticulated a standard for determining
whether a case is “likely to evade review” that runs counter to the
McBride holding. McBride found that bar exam disputes are rapidly
resolving issues because “an aggrieved applicant could retake the
Exam and be admitted to the Bar before the issue could be litigated.”
2010 UT 60, ¶ 15 (emphasis added). But the Steed court held that
while “in the past we ha[d] been somewhat loose in our articulation
of the third element of our mootness exception”—alternatively
requiring that an issue be “capable of evading review” and “likely to
evade review”—“[u]pon reflection . . . the ‘capable of evading review’
articulation of the third element is overly broad.” 2015 UT 76, ¶ 8
(emphasis added) (citation omitted) (internal quotation marks
omitted). We went on to “clarify that the proper articulation of our
standard is the one used herein—‘likely to evade review,’” and
expressly “disavow any language in our prior cases stating
otherwise.” Id. (emphasis added). Because McBride allows for even
the possible actions of a party to trigger our mootness exception, it
has been overtaken by Steed.
¶119 The majority is correct that my view of Steed’s
incompatibility with McBride did not carry the day in Steed. See supra
¶¶ 36–38. But I openly acknowledge that Steed did not feel the need
to override McBride in that case. See supra ¶¶ 116; 116 n.31. So I am
not suggesting that we do something underhanded or “give stare
decisis respect to a conclusion we explicitly refused to reach.” See
supra ¶ 38. I’m just asserting that we need to actually give stare decisis
effect to our central holding in that case—that an issue must be likely
to evade review, not capable of evading review. Steed, 2015 UT 76,
¶ 8. It is impossible to apply that standard and reach the same result
in McBride. See 2010 UT 60, ¶ 15 (finding an exception to mootness in
part because “an aggrieved applicant could retake the Exam and be
admitted to the Bar before the issue could be litigated” (emphasis
added)). Steed was thus more than “an important clarification” on
the third prong of our mootness exception, supra ¶ 47; it was a
revision that undermined the core basis for our holding in the
McBride case. For the same reasons the United States Supreme Court
did not hesitate to overrule Quill and Bellas Hess in Wayfair, see supra
¶ 83, we should not hesitate to expressly overrule McBride. See
BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 397 (2016)
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(“Courts generally give less precedential weight to decisions that are
isolated and haven’t been followed (or acquiesced in) . . . .”); id. at
397–98 (explaining that overruling is appropriate when “related
principles of law have so changed as to leave a particular precedent
outdated”); id. at 398 (“When a particular precedent stands alone or
is at odds with related legal doctrine, it’s often a sign that the
particular case was poorly reasoned or incorrect.”).
¶120 Steed, moreover, is just one small part of my analysis. A
more central problem is the fact that the majority’s approach is
completely inconsistent with Utah Transit Authority and the
post-Steed case of Teamsters. See supra ¶¶ 76–103. And the majority
cannot seriously claim to be “honor[ing] stare decisis” in “reject[ing]
the invitation to disregard our case law” without invitation from the
parties,32 supra ¶ 37, when it is overruling key holdings of Utah
Transit Authority and Teamsters without invitation or briefing from
the parties.
3. Inconsistent with Teamsters
¶121 Finally, McBride is at odds with our mootness-ripeness
decision in Teamsters because it incorrectly defined the scope of the
relevant controversy that was capable of evading review and took
into account the voluntary actions of the plaintiff.
_____________________________________________________________
32 The correction and harmonization of our law is not contingent
on a request from the parties. We made this point clear in another
recent case that the majority seems intent on overriding—Blanke v.
Utah Bd. of Pardons & Parole, 2020 UT 39, 467 P.3d 850, where we held
that “we have the power to revisit precedent at any time” and the
authority to “clarify, refine, or reconcile our past precedent” even
without an explicit request from the parties. Id. ¶ 11 n.6 (citation
omitted) (internal quotation marks omitted). Blanke notes our
preference for adversarial briefing before overruling or reconciling
our precedent. See id. But it also makes clear that we need not await a
request from the parties that we get the law right, and notes our
prerogative of seeking supplemental briefing where we lack an
express request and find adversary briefing helpful. See id.; see also
Thomas v. Hillyard, 2019 UT 29, ¶ 18, 445 P.3d 521 (noting that the
need to overrule existing precedent may be most pressing where our
case law is in a state of internal conflict; overruling Jensen v. Young,
2010 UT 67, 245 P.3d 731, without invitation from the parties in light
of the existence of “two lines of cases” that had “taken inconsistent
and confusing paths”).
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A.C.J. LEE, concurring in the judgment
¶122 In McBride, we found that disputes over bar exams are
capable of evading review generally because they are offered every
six months and any aggrieved applicant “could retake the Exam and
be admitted to the Bar before the issue could be litigated.” 2010 UT
60, ¶ 15. But as explained above, Teamsters held that the relevant
inquiry in determining whether a case is justiciable is whether our
opinion can affect the interests of a specific party in a specific
controversy at the time we rule on the case. See supra ¶¶ 89–92.
Under the holding of Teamsters, we would have dismissed McBride’s
case as moot because “[t]he relevant controversy [was] not whether
[McBride] ha[d] some general right to [submit exam answers late]; it
is whether [McBride] ha[d] a right to [submit exam answers late] in
this instance.” 2018 UT 33, ¶ 13. And since McBride “ha[d] indicated
[his] desire to [not submit his answers late] for the time being,” by
taking and passing a new exam, “our decision could not affect [this
applicant] at this time.” Id. (emphasis in original). We would have
ruled that although the Bar “want[ed] us to decide th[e] case to avert
a future case,” “such a decision would run afoul of the doctrine of
ripeness.” Id. ¶ 14.
¶123 Teamsters also held that the actions of a plaintiff are not
relevant to the voluntary cessation inquiry because a plaintiff has no
incentive but the resolution of the controversy. See supra ¶¶ 93–95.
Under current precedent, then, we would have said that McBride
was “not [a] defendant[] who sought to moot a case when . . . sued
for violating a plaintiff’s legal rights,” but rather a “plaintiff[]
seeking to establish [his] own legal rights.” Teamsters, 2018 UT 33,
¶ 18. Therefore, “the strategic pattern contemplated in the voluntary
cessation line of cases is not implicated.” Id. We might also have
added that because we had “no reason to doubt the sincerity of
[McBride’s] decision to repudiate [his] initial inclination” to submit
his old answers late, his decision was “unlikely to have been
influenced by any strategic attempt to evade judicial review.” Id.
¶ 19.
¶124 McBride is thus a faulty basis for the majority’s
reformulation of the third prong of our mootness exception for
multiple reasons: (1) it failed to recognize mootness as a
jurisdictional requirement (contra Utah Transit Authority and In re
Gestational Agreement), (2) it deemed a case “likely to evade review”
for being merely “capable of evading review” (contra Steed), and
(3) in making its mootness determination, it misidentified the
relevant “controversy” and considered the actions of the plaintiff
(contra Teamsters).
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III. Stare Decisis
¶125 Today the court dismisses Widdison’s claim in part on the
ground that she has not shown that she was “paroled specifically for
the purpose of preventing this court from addressing the issues she
raises” as “part of a[n] . . . effort to systemically grant parole to keep
those issues from this court.” Supra ¶ 58. The majority cites no
authority for its establishment of a new legal standard—its decision
to consider whether a specific defendant is systematically surrendering
whenever a certain issue is appealed. See supra ¶ 62 (“We would
share Widdison’s concern if it appeared that the Board was
consistently paroling inmates in order to avoid review of its
practices.”). There is nothing in our case law that suggests that a
court should consider the defendant’s larger motivations in mooting
a specific case. Our established case law sets a different standard. So
long as the defendant’s decision to stop violating a specific plaintiff’s
rights is final—the defendant is not just temporarily pausing its
illegal behavior against a specific plaintiff—the case is moot, our
jurisdiction is at an end, and no “exception” can cure it. See Teamsters
Local 222 v. Utah Transit Auth., 2018 UT 33, ¶¶ 18–20, 424 P.3d 892.
¶126 In rejecting this standard and establishing a new one, the
majority claims that it is preserving an alternative formulation of the
“likely to evade review” prong of our mootness exception out of
fidelity to Kearns-Tribune Corp. v. Salt Lake Cnty. Comm’n, 2001 UT 55,
28 P.3d 686; Anderson v. Taylor, 2006 UT 79, 149 P.3d 352; and
McBride v. State Bar, 2010 UT 60, 242 P.3d 769. But this is problematic
even assuming that these cases all stand for the propositions for
which the majority cites them. But see supra Part II. Even if that were
true, the majority still would be in no position to reinstate those
propositions without directly confronting and overruling our more
recent precedent that contradicts the holdings in those cases.33 Under
established principles of stare decisis, the court should conclude that
the cited premises of our older cases have been overtaken by more
recent authority.34 Yet the majority does the opposite—it concludes
_____________________________________________________________
33 Per the majority’s proposed standard, it would be in no
position to do so without invitation and briefing from the parties. See
supra ¶¶ 25; 25 n.6; 37.
34 See Outfront Media, LLC v. Salt Lake City Corp., 2017 UT 74, ¶ 12
n.13, 416 P.3d 389 (crediting “recent decisions” and holding that
judicial deference to local agencies’ interpretations “cannot stand in
view of subsequent developments in our precedent”); Agostini v.
(continued ...)
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A.C.J. LEE, concurring in the judgment
that our older cases control, and somehow override our more recent
authority (Utah Transit Authority, In re Gestational Agreement, Steed,
and Teamsters). The court’s opinion thus establishes two different
tests for analyzing the same voluntary actions of a defendant. And it
contains strong echoes of the approach to mootness that we rejected
in Utah Transit Authority.
A. The Importance of Crediting More Recent Authority
¶127 Our mootness cases, as noted, are not a model of clarity. In
the past, we confusingly blurred voluntary cessation and the third
prong of our public interest exception, making explicit discussion of
voluntary cessation less frequent.35 But we have made strides of late
to bring clarity and focus to this area.
¶128 Despite these efforts, some lines of inconsistency remain.
This is an inevitable (if unfortunate) aspect of the judicial process. As
we refine the framework for our analysis over time, some of the
language (and sometimes the holdings) of our older precedents may
no longer be viable. When that happens, our doctrine of stare decisis
yields a clear path forward: We credit more recent case law and
repudiate—and overrule if necessary—older cases that have been
overtaken.36 We have even disavowed statements in a more recent
Felton, 521 U.S. 203, 235 (1997) (“The doctrine of stare decisis does not
preclude us from recognizing the change in our law and overruling
Aguilar [v. Felton] and those portions of [Sch. Dist. of City of Grand
Rapids v.] Ball inconsistent with our more recent decisions.”).
35 Again, the majority seems to recognize that our older cases
discussing whether issues are “likely to evade review” “because of
the likely actions of a party” are really voluntary cessation cases.
Supra ¶ 24 n.5.
36 See Biesele v. Mattena, 2019 UT 30, ¶ 34 n.5, 449 P.3d 1
(acknowledging “some tension in our case law” but siding with the
decision that was “more recent than the cited cases” in part because
it was “clear and straightforward and ha[d] not been called into
question by the parties”); Waite v. Utah Labor Comm’n, 2017 UT 86,
¶ 22, 416 P.3d 635 (recognizing that that the court had “more
recently” clarified that the “view of the presumption of
constitutionality” expressed in older decisions was “no longer good
law”); Outfront Media, LLC, 2017 UT 74, ¶ 12 n.13, (siding with
“recent decisions” and holding that judicial deference to local
agencies’ interpretations of their own regulations “cannot stand in
(continued ...)
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case once it became clear that its attempts to reconcile with older
cases had failed.37 Yet the majority does just the opposite, ignoring or
cabining clear, recent case law in order to resurrect older and vaguer
precedents.
¶129 The decision to formally disavow inconsistent language in
our older case law is a straightforward move here. Utah Transit
Authority, Steed, and Teamsters already clarified how to define the
relevant controversy and explained the effect of a defendant’s
voluntary actions on justiciability—the issue at the heart of this case.
All we need to do today is read this past case law in light of our
more recent opinions. See BRYAN A. GARNER ET AL., THE LAW OF
JUDICIAL PRECEDENT 300 (2016) (“A court of last resort generally
view of subsequent developments in our precedent”); see also
Agostini, 521 U.S. at 236 (overruling past decisions “to the extent
[they] [we]re inconsistent with [the court’s] current understanding of
the Establishment Clause” because the court’s “Establishment Clause
jurisprudence ha[d] changed significantly”); Fulton Corp. v. Faulkner,
516 U.S. 325, 345–46 (1996) (holding that past decisions were “no
longer good law under the Commerce Clause” because “to the extent
that [they] evaluated a discriminatory state tax under the Equal
Protection Clause, time simply has passed [them] by”); United States
v. Gaudin, 515 U.S. 506, 521 (1995) (“[W]e think stare decisis cannot
possibly be controlling when[] . . . the decision in question has been
proved manifestly erroneous, and its underpinnings eroded, by
subsequent decisions of this Court.”); Patterson v. McLean Credit
Union, 491 U.S. 164, 173 (1989), superseded by statute on other grounds,
(noting that when “the growth of judicial doctrine” or “subsequent
changes or development in the law” have “removed or weakened
the conceptual underpinnings from [a] prior decision,” or “later law
has rendered [a] decision irreconcilable with competing legal
doctrines or policies,” the Court “has not hesitated” to overrule it);
BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 397–98
(2016) (explaining that overruling is appropriate when “related
principles of law have so changed as to leave a particular precedent
outdated”).
37 See Salo v. Tyler, 2018 UT 7, ¶ 2, 417 P.3d 581 (“disavow[ing]
any suggestion” in Orvis v. Johnson, 2008 UT 2, 177 P.3d 600 “that our
Utah [summary judgment] standard is distinct from the federal
standard” because “confusion ha[d] continued” in spite of the
opinion’s efforts to reconcile that position with our case law).
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A.C.J. LEE, concurring in the judgment
follows its decision in the most recent case, which must have tacitly
overruled any truly inconsistent holding.” (emphasis added)). There
is no reason for us to reframe our past cases to cling to outdated
principles or establish new ones that they do not support.
¶130 Stare decisis compels us to respect decisions like Utah
Transit Authority and Teamsters by either finding a way to harmonize
past case law with their holdings or acknowledge that past case law
is overruled to the extent of any conflict. What stare decisis does not
allow—let alone compel us to do—is ignore our recent precedent
and rewrite older cases while claiming that we are faithfully
applying them.
B. The Majority Creates Two Tests
Governing the Same Set of Facts
¶131 In separating McBride from Teamsters, the majority also
creates two different tests for analyzing the same voluntary actions
of a defendant—opening the door to two different results under the
same set of facts. Under the Teamsters voluntary cessation approach, a
defendant’s actions granting the plaintiff all the relief she seeks
would prevent us from ruling on the case (unless the defendant were
only temporarily halting behavior against that specific plaintiff at
that specific time). Cases such as Widdison’s would be dismissed as
a matter of course. Under the majority’s reformulated mootness
exception, by contrast, that same case could be reviewed (temporary,
specific cessation or not) because the defendant’s overall
“systemic[]” efforts to moot a certain issue (not a specific
controversy) render the case “likely to evade review.” See supra ¶ 58;
see also supra ¶ 62 (“We would share Widdison’s concern if it
appeared that the Board was consistently paroling inmates in order
to avoid review of its practices.”). This is not a recipe for principled
judging. The prospect of two competing standards is yet another
reason to reject the majority’s approach to our exception to
mootness.
C. We Rejected the Majority’s Approach to Mootness in
Utah Transit Authority and In re Gestational Agreement
¶132 The court’s suggestion that we should be free to review an
individual, otherwise moot case if the Parole Board were in the
business of “systemically” paroling inmates (i.e., giving up) to avoid
an adverse ruling, supra ¶ 58, is itself a significant departure from
our case law. See also supra ¶ 3 (dismissing Widdison’s case as moot
because “Widdison has not convinced us that if we do not decide her
case, we will likely deprive ourselves of any opportunity to review
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the types of issues she raises”); supra ¶ 62 (“We would share
Widdison’s concern if it appeared that the Board was consistently
paroling inmates in order to avoid review of its practices.”).
Intimating that an issue can’t really be non-justiciable if we think that
the parties (as opposed to the nature of the dispute itself) won’t ever
let us rule on it implies that we have some right to rule on certain
issues—whether there is a live controversy or not. The majority’s
view advances the theory that mootness is free of constitutional
limitations—that “mootness [is] a principle of our own creation . . .
that we have the power to abolish . . . at our whim[] on the ground[]
. . . that the question presented is sufficiently important or interesting
to merit our attention and to justify the clarification of Utah law
through publication of an opinion.” Utah Transit Auth., 2012 UT 75,
¶ 17. If this is in fact what is driving the majority, see supra ¶ 25 n.6, it
needs to justify its decision to reverse our holdings in Utah Transit
Authority, 2012 UT 75, ¶¶ 17–18, 27, In re Gestational Agreement, 2019
UT 40, ¶ 12, 449 P.3d 69, and others under our doctrine of stare
decisis. Its failure to do so highlights a further problem with the
majority opinion.
IV. Conclusion
¶133 The majority frames our disagreement as one over
whether we overruled our untraditional likely-to-evade-review case
law even though we “(1) cited those cases favorably . . . and (2)
expressly declined to overrule them in a subsequent case.” Supra ¶ 27
n.7. But this avoids the actual question before us. The real question
we face today is whether we should adhere to and extend a variation
of an exception to mootness that requires us to (1) ignore—diminish
or outright overrule—our core holdings on the exception to
mootness in favor of citations and parentheticals to older case law;38
(2) interpret Steed’s decision not to reach out to overrule McBride
(which it recognized as a “depart[ure] from our traditional
approach”) as “honor[ing]” and “expressly” confirming McBride;39
and (3) contradict our case law on ripeness and voluntary cessation,
creating two contradictory tests for analyzing the same set of facts. 40
¶134 I answer this question in the negative. I thus concur in the
majority’s decision to dismiss this case as moot but decline to join its
_____________________________________________________________
38 See supra ¶ 53.
39 Supra ¶ 27, 36–37.
40 See supra ¶¶ 73, 100 n.26, 103, 107, 131.
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A.C.J. LEE, concurring in the judgment
rationale. The court goes out of its way to preserve a dubious vision
of a body of older case law at the expense of clearer, more recent
precedent. In so doing, it undermines constitutional limits on the
judicial power, injects confusion into our case law, and turns its back
on some central tenets of the doctrine of stare decisis. I see a much
clearer path to today’s decision. We should dismiss this case under
the standards set forth in Utah Transit Authority, Steed, and Teamsters.
¶135 In charting a different course, the majority effectively
overrules important elements of our holdings in each of these cases.
And it does so in the same opinion in which it claims to be
“stick[ing] with our case law” and “honor[ing]” and “repect[ing]
stare decisis.” Supra ¶¶ 37, 56. I concur in the judgment of the court
but respectfully disagree with the disruptive basis for the majority
opinion.
56