Laws v. Grayeyes , 2021 UT 59 ( 2021 )

2021 UT 59IN THE
SUPREME COURT OF THE STATE OF UTAH
KELLY LAWS,
Appellant,
v.
WILLIE GRAYEYES,
Appellee.
No. 20190088
Heard March 8, 2021
Filed September 30, 2021
On Direct Appeal
Seventh District Court, Monticello
The Honorable Don M. Torgerson
No. 180700016
Attorneys:
Peter Stirba, Valerie Wilde, Matthew Strout, Ciera Archuleta, Salt
Lake City, for appellant
Steven C. Boos, Durango, CO, David Irvine, Eric P. Swenson, Alan L.
Smith, Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in part
and concurring in the judgment.
JUSTICE PEARCE authored an opinion concurring in part and
concurring in the judgment, in which JUSTICE HIMONAS joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Willie Grayeyes declared in March 2018 that he would run
for the office of San Juan County Commissioner. To prove to the
county clerk that he was a county resident, and therefore eligible to
LAWS v. GRAYEYES
Opinion of the Court
run for county office, Grayeyes provided coordinates and satellite
images for his place of residence in San Juan County.
¶2 At this time, Kelly Laws, who was also running for county
commissioner, had reason to believe that Grayeyes did not live at the
coordinates he provided with his declaration of candidacy. But
rather than raise his concerns then, Laws waited until after Grayeyes
won the election.
¶3 Laws filed a challenge shortly after the election. The Seventh
District Court concluded that Laws had waited too long to raise his
concerns about Grayeyes‘s residency. But the court nevertheless
addressed the merits, concluding that Grayeyes was a resident of
San Juan County, and declined to overturn the results of the election.
¶4 On appeal, we conclude that Laws lacked standing to file
suit in the first place because he has not alleged a sufficiently
particularized injury. Accordingly, we dismiss Laws‘s claim for lack
of jurisdiction. We also affirm the district court‘s rejection of
Grayeyes‘s cross-appeal for attorney fees.
Background
¶5 Grayeyes declared in March 2018 that he would run as a
candidate for the office of San Juan County Commissioner. He filed
his declaration with the county clerk, affirming that he resided in
San Juan County and providing coordinates and satellite images for
a place of residence on Navajo Mountain.1
¶6 That same month, Wendy Black, who is not a party to this
case, challenged Grayeyes‘s candidacy under Utah Code section
20A-9-202, claiming that he was not actually a San Juan County
resident. The county clerk asked the Sheriff‘s Department to
investigate the concerns raised in Black‘s candidacy challenge.
Sheriff Turk went to Navajo Mountain and tried to locate Grayeyes‘s
residence. He interviewed people there and discovered that someone
else lived in the house at the coordinates Grayeyes had provided to
the county clerk. The clerk consequently removed Grayeyes from the
ballot.
¶7 Shortly thereafter, Grayeyes appealed the clerk‘s decision in
federal district court. That court concluded the clerk had acted
outside of his authority by initiating an investigation into Grayeyes‘s
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1Grayeyes submitted coordinates and satellite images because
houses on Navajo Mountain typically do not have address numbers.
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residency rather than relying solely on the information included
with Black‘s candidacy challenge as required by statute. So, in
August 2018, the federal district court issued an injunction requiring
San Juan County to place Grayeyes‘s name back on the ballot. But
the federal district court ultimately did not resolve Black‘s concerns
about Grayeyes‘s residency on the merits, instead dismissing her
candidacy challenge for other reasons.2
¶8 Laws knew about Black‘s candidacy challenge by March
2018 but chose not to file his own challenge at that time. Instead,
Laws relied on Black‘s challenge to resolve any concerns he had
about Grayeyes‘s candidacy. In fact, Laws waited until after
Grayeyes defeated him in the election to raise his concerns.
¶9 On November 6, 2018, Grayeyes won the election for county
commissioner. Within forty days of the official canvass, as required
by Utah Code section 20A-4-403, Laws filed a complaint challenging
Grayeyes‘s eligibility to run for and serve in that office.
¶10 The Seventh District Judicial Court held a bench trial in
January 2019. Grayeyes submitted a motion to dismiss Laws‘s
complaint for lack of standing a few days before the trial, but the
district court never ruled on the motion.3 Both Laws and Grayeyes
presented evidence and called witnesses to testify regarding
Grayeyes‘s residency.
¶11 Laws submitted the report Sheriff Turk had prepared
regarding his investigation of Grayeyes‘s residency on Navajo
Mountain in response to Black‘s March 2018 challenge to Grayeyes‘s
residency. The court admitted Sheriff Turk‘s testimony about what
he saw, the notes and photographs he took at the time, and a
videotape of an interview with Grayeyes. But the court excluded
body cam footage of Sheriff Turk‘s interviews with people he met
while on Navajo Mountain as inadmissible hearsay. These
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2 Grayeyes v. Cox, No. 4:18-cv-00041, 2018 WL 3830073, at *8 (D.
Utah Aug. 9, 2018). Judge Nuffer‘s focus turned to Grayeyes‘s claims
that the county clerk violated his due process rights and various
other issues. Id. at *6–9.
3 Although the district court did not address Grayeyes‘s
argument that Laws lacked standing in its initial decision, the court
did note that Laws had standing as a registered voter under Utah
Code section 20A-4-403(1) in its order rejecting Grayeyes‘s request
for attorney fees.
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LAWS v. GRAYEYES
Opinion of the Court
interviews corroborated Sheriff Turk‘s discovery that someone else
lived in the house at the coordinates Grayeyes submitted with his
declaration of candidacy.
¶12 Laws also presented evidence tying Grayeyes to Arizona.
Laws established that Grayeyes had an Arizona driver‘s license,
owned an uninhabitable mobile home in Page, Arizona, picked up
his mail from an Arizona post office, often bought groceries in
Arizona, and sometimes stayed with a girlfriend in Tuba City,
Arizona.
¶13 To counter these facts, Grayeyes presented evidence
regarding Navajo cultural practices tying him to San Juan County,
including the practice of burying a child‘s umbilical cord at his
spiritual home. Grayeyes‘s umbilical cord is buried on Paiute Mesa,
he was raised there, and his family considers the area their place of
origin. Grayeyes also demonstrated that he had spent much of his
life representing Navajo Mountain in tribal politics and was
employed by the Navajo Mountain Chapter of the Navajo Nation at
the time of trial.
¶14 Grayeyes did not dispute the fact that he owns a mobile
home in Page, Arizona and sometimes stays with his girlfriend in
Tuba City, Arizona. But he presented evidence that he spends about
sixty to eighty percent of his time on Navajo Mountain, staying in a
shade hut, with his sister, or at his daughter‘s cabin.
¶15 Witness testimony showed that Grayeyes never made the
mobile home in Arizona his general residence. He and his wife
bought the mobile home so their children could attend public school
in Arizona. Grayeyes‘s wife stayed with their children there until she
passed away in 1987. During that time, however, Grayeyes remained
at Navajo Mountain to run cattle and stay involved in tribal politics.
Apart from staying at the mobile home for the duration of one school
year, Grayeyes never lived there as a permanent resident.
¶16 Considering this evidence, the district court ―ha[d] no
problem concluding that Grayeyes maintain[ed] his principal place
of residence in San Juan County.‖ The court found that Grayeyes
spends a majority of his time in San Juan County, has consistently
lived there throughout his life, and has deep political and cultural
connections to the area. The court further found that Laws never
credibly refuted these facts at trial.
¶17 The court was not persuaded by the evidence tying
Grayeyes to Arizona. It found that ―all of the other Utah residents at
Navajo Mountain/Paiute Mesa‖ buy groceries and access critical
services in Arizona ―as a matter of convenience.‖
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¶18 The court also noted that in making this determination, it
was rejecting Laws‘s contention at trial ―that a particular house is
required for a person to have a principal place of residence.‖ In the
court‘s view, ―the ‗single location where a person‘s habitation is
fixed‘ could mean a larger geographical area and include various
places,‖ and so long as Grayeyes‘s shade hut, his sister‘s house, and
his daughter‘s cabin fell within a single voting precinct, ―that
geographical area is sufficient to be a principal place of residence.‖
The court therefore concluded that Grayeyes was a San Juan County
resident and thus eligible to serve as county commissioner.
¶19 Following trial, Grayeyes filed an application for attorney
fees, which the court rejected, concluding that Laws had filed his
complaint in good faith. In the court‘s view, Laws had presented a
legitimate dispute regarding Grayeyes‘s residency but ultimately
lost on the merits. The court also rejected Grayeyes‘s assertion that
he was entitled to attorney fees under the private attorney general
doctrine. The court held that the private attorney general doctrine
had been disavowed by the legislature, but that, regardless, general
principles of equity and justice did not justify an award of fees in the
case of ―a straightforward election challenge authorized by statute.‖
¶20 Laws appealed the trial court‘s decision, claiming that the
court erred in concluding that Grayeyes was a San Juan County
resident. Grayeyes filed a cross appeal, arguing that Laws lacked
standing to file his election challenge and that the court erred in
declining to award him attorney fees.
Standard of Review
¶21 Whether Laws has standing to file an election challenge is a
mixed question of law and fact. For mixed questions, we uphold the
trial court‘s findings of fact unless clearly erroneous, and we review
the court‘s ultimate conclusion for correctness.4
¶22 ―The standard of review on appeal of a trial court‘s award of
attorney fees is patent error or clear abuse of discretion.‖5 But
because Grayeyes challenges the constitutionality of two statutes on
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4 State v. Thurman, 846 P. 2d 1256, 1269 (Utah 1993).
5 Valcarce v. Fitzgerald, 961 P.2d 305, 316 (Utah 1998) (citation
omitted) (internal quotation marks omitted).
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LAWS v. GRAYEYES
Opinion of the Court
which the district court relied to reach its decision, we review the
court‘s interpretation of those statues for correctness. 6
Analysis
¶23 Both parties raise multiple issues on appeal. We first
address Grayeyes‘s argument that Laws lacks standing to challenge
his election because Laws has not met the traditional standing
requirements. Laws argues that statutory standing should be enough
on its own. We do not address this argument, however, because it is
inadequately briefed. In the alternative, Laws argues he has met the
requirements for traditional standing. We disagree. Laws has not
alleged a sufficiently particularized injury. Because we conclude that
Laws has not met the requirements for traditional standing, we do
not address his remaining arguments.
¶24 We next consider Grayeyes‘s argument that the court erred
in rejecting his application for attorney fees under general equitable
principles and the private attorney general doctrine. We affirm the
district court because we reject Grayeyes‘s argument that the district
court erred in relying on Utah Code section 78B-5-825 in denying his
petition for fees. This statute does not unconstitutionally limit courts‘
authority to award attorney fees in the way Grayeyes asserts. And
Grayeyes, in defending himself in this case, has not satisfied the
private attorney general doctrine. So we affirm the district court‘s
decision.
I. Laws Lacks Standing
¶25 Grayeyes argues that Laws lacks standing to challenge his
election to the office of county commissioner because Laws has not
satisfied the traditional standing requirement of demonstrating a
constitutionally cognizable injury. In response, Laws argues that he
has statutory standing to sue under Utah Code section
20A-4-403(1)(a). But in the event statutory standing is not enough on
its own, Laws also claims to have met the traditional requirements
for standing.
¶26 We address Laws‘s arguments in reverse order. First we
consider whether Laws has met the traditional requirements for
standing and conclude that he has not. We then reject Laws‘s
argument that statutory standing should be enough even absent
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6 See Utah Dep’t of Transp. v. Ivers, 2009 UT 56, ¶ 9, 218 P.3d 583(―[T]he interpretation of a statute . . . presents a question of law,
which we review for correctness.‖).
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traditional standing because Laws has not sufficiently briefed this
issue.
A. Laws Has Not Alleged a Particularized Injury for Traditional
Standing
¶27 We have held that ―[s]tanding is a jurisdictional
requirement that must be satisfied before a court may entertain a
controversy between two parties.‖7 To assess whether a party has
traditional standing, we employ a three-part test:
First, the party must assert that it has been or will be
adversely affected by the [challenged] actions. Second,
it must allege a causal relationship between the injury
to the party, the [challenged] actions, and the relief
requested. And third, it must request relief that is
substantially likely to redress the injury claimed.8
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7 Jones v. Barlow, 2007 UT 20, ¶ 12, 154 P.3d 808 (citation omitted)
(internal quotation marks omitted).
8S. Utah Wilderness All. v. San Juan Cnty. Comm’n, 2021 UT 6, ¶ 14,
484 P.3d 1160 (alterations in original) (emphasis omitted) (citations
omitted) (internal quotations marks omitted).
In his concurring opinion, Justice Pearce expresses concern that
we applied the traditional standing test in Southern Utah Wilderness
Alliance v. San Juan County Commission without grappling with its
origins in Utah law. See id.; infra ¶ 98. But our reliance on the test in
that case was consistent with established caselaw. See, e.g., Alpine
Homes, Inc. v. City of W. Jordan, 2017 UT 45, ¶ 34, 424 P.3d 95; Brown
v. Div. of Water Rts. of Dep’t of Nat. Res., 2010 UT 14, ¶ 17, 228 P.3d
747; Hogs R Us v. Town of Fairfield, 2009 UT 21, ¶ 8, 207 P.3d 1221;
Utah Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶¶ 19–
20, 148 P.3d 960.
Justice Pearce points out that these cases refer to two possible
paths to standing, infra ¶ 100, ―the traditional test and an alternative
test,‖ Utah Chapter of Sierra Club, 2006 UT 74, ¶ 18. While this
―recognition of [an] alternative[] to traditional standing,‖ infra ¶ 100,
may support Justice Pearce‘s argument for revisiting the roots of our
constitutional standing doctrine, the fact remains that in these cases
we did, consistent with our established caselaw, rely upon our
traditional standing test.
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Opinion of the Court
¶28 To be adversely affected under the first part of this test, we
have held that a party must demonstrate a ―particularized injury‖
―that gives him a personal stake in the outcome of the legal
dispute.‖9 A plaintiff generally falls short of this if he can assert
―only a general interest he shares in common with members of the
public at large.‖10
¶29 For example, in Jenkins v. Swan, we concluded that a plaintiff
did not have standing to challenge the constitutionality of public
educators serving as state legislators.11 The plaintiff claimed to have
standing because ―educators serving as legislators . . . vote on
legislation which financially benefits them as employees of the
education system and . . . this adversely affects [him] as a
taxpayer.‖12 We rejected this argument because the plaintiff‘s
―general status as a taxpayer and citizen d[id] nothing to distinguish
him from any member of the public at large with regard to this
dispute.‖13 Laws lacks standing for the same reason.
¶30 Laws argues that, as a registered voter, he has a right to
choose between eligible candidates and to participate in lawful
elections. And ―[h]aving a candidate that is ineligible to serve [as
county commissioner] elected,‖ Laws avers, ―impairs and dilutes
[his] constitutional right to participate in a regular and properly
constituted election.‖ But this injury is not particular to Laws—all
registered voters in San Juan County share this same right to
participate in lawful elections.
¶31 Laws‘s status as a registered voter, like the plaintiff‘s
taxpayer status in Jenkins v. Swan, does not distinguish him from
―any member of the public at large with regard to this dispute.‖ 14
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9Jenkins v. Swan, 675 P.2d 1145, 1148, 1151 (Utah 1983) (emphasis
omitted).
10 Id. at 1149.
11 Id. at 1151.
12 Id.
13 Id.
14 Id. Because Laws alleges an impairment to his right to vote, we
focus our analysis on other registered voters in the county. But we
are not convinced that Laws‘s status as a registered voter gives Laws
an interest in this case distinct even from those who are not
registered to vote. Having a candidate elected that is ineligible or
(Continued)
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Although Laws frames his alleged injury in terms of his personal
right to vote, he does not claim to have suffered distinctly from other
registered voters in the county as a result of Grayeyes‘s election. So
we conclude that Laws lacks traditional standing.
B. Laws’s Statutory Standing Argument Is Inadequately Briefed
¶32 Laws argues that he has met the statutory requirements for
standing to file suit under Utah Code section 20A-4-403(1)(a). And,
in his view, meeting these requirements ―should be sufficient for his
claims to be properly adjudicated before this court.‖ To support this
argument, Laws cites our decision in Washington County Water
Conservancy District v. Morgan, in which we considered whether a
water district ―ha[d] been granted special statutory standing . . .
regardless of whether it satisfie[d] traditional standing
requirements.‖15 But beyond his discussion of this case, Laws does
not adequately address the constitutional underpinnings of our
standing caselaw. So we do not address Laws‘s argument that
meeting the statutory requirements in section 20A-4-403(1)(a) is
sufficient to grant standing on its own.
¶33 As discussed, ―[s]tanding is a jurisdictional requirement that
must be satisfied before a court may entertain a controversy between
two parties.‖16 We have held that this requirement stems from the
Utah Constitution. ―Although the Utah Constitution includes no . . .
express limitation [on Utah courts‘ jurisdiction], we have held it
nevertheless mandates certain standing requirements, which
unqualified is an injury that that could be suffered by all those
residing in San Juan County, not just registered voters. Utah Code
section 17-16-1 does not specify, and Laws does not argue, that its
residency requirement for the office of county commissioner is solely
for the benefit of registered voters. See Carter v. Lehi City, 2012 UT 2,
¶ 77, 269 P.3d 141 (―[A] decision whether to impose a residency
requirement is based on broad policy considerations pertinent to the
office . . . .‖); see also Gilbert v. State, 526 P.2d 1131, 1135 (Alaska 1974)
(stating that a durational residency requirement for state office
―assur[es] that those who govern are acquainted with the conditions,
problems, and needs of those who are governed‖), superseded by
statute, 2003 Alaska Sess. Laws, ch. 86, §§ 1–4.
15 2003 UT 58, ¶ 7, 82 P.3d 1125.
16Jones, 2007 UT 20, ¶ 12 (citation omitted) (internal quotation
marks omitted).
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LAWS v. GRAYEYES
Opinion of the Court
emanate from the principle of separation of powers.‖17 The Utah
Constitution provides for a state government divided into the
legislative, executive, and judicial departments. And it includes the
restriction that ―no person charged with the exercise of powers
properly belonging to one of these departments, shall exercise any
functions appertaining to either of the others . . . .‖18
¶34 To ensure this separation, we require a plaintiff to
demonstrate a personal stake in the outcome of a dispute. This
requirement ―limit[s] the jurisdiction of the courts to those disputes
which are most efficiently and effectively resolved through the
judicial process.‖19 Absent such a requirement, ―the courts might
permit themselves to be drawn into disputes that are not fit for
judicial resolution or amount to ‗generalized grievances that are
more appropriately directed to the legislative and executive
branches of the state government.‘‖20 So we do ―not lightly dispense
with the requirement that a litigant have a personal stake in the
outcome of a specific dispute.‖21
¶35 Laws challenged Grayeyes‘s election as county
commissioner under Utah Code section 20A-4-403(1), which states
that ―a registered voter‖ may ―contest the right of any person
declared elected to any office by filing a verified written complaint,‖
including ―one or more of the grounds for an election contest
specified in Section 20A-4-402,‖ ―within 40 days after the canvass.‖
Laws argues he has met these requirements in filing his suit, which
he says ―should be sufficient for his claims to be properly
adjudicated before this court.‖
¶36 In support of this argument, Laws cites our decision in
Washington County Water Conservancy District v. Morgan.22 He argues
that some of the language in our opinion indicates that traditional
standing is only necessary in the absence of statutory standing. In
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17 Brown, 2010 UT 14, ¶ 12.
18 UTAH CONST. art. V, § 1.
19 Jenkins, 675 P.2d at 1149.
20 Soc’y of Pro. Journalists, Utah Chapter v. Bullock, 743 P.2d 1166,
1170 (Utah 1987) (quoting Jenkins, 675 P.2d at 1149).
21Terracor v. Utah Bd. of State Lands & Forestry, 716 P.2d 796, 799
(Utah 1986).
22 2003 UT 58, 82 P.3d 1125.
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Morgan, we stated that ―[a] plaintiff who has not been granted
standing to sue by statute must either show that he has or would
suffer a distinct and palpable injury that gives rise to a personal
stake in the outcome of the case.‖ 23 Indeed, this language suggests
that the court will consider the requirements for traditional standing
only in the absence of statutory standing. This language was dicta,
however, because we ultimately concluded that the water district
lacked statutory standing.24 So we did not reach the question of
whether the legislature, by statute, could circumvent the traditional
requirements for standing.
¶37 Because we have held that traditional standing is rooted in
the Utah Constitution‘s principles of separation of powers, we
decline to rely on dicta from Morgan to resolve the question of
whether the Utah Legislature, in enacting section 20A-4-403,
intended to grant standing to a plaintiff by statute when that plaintiff
has not met the requirements for traditional standing. Beyond citing
Morgan, Laws does not provide briefing on the constitutional issues
implicated by his interpretation of section 20A-4-403.25 So we reject
this argument on inadequate briefing grounds and conclude that
Laws lacks standing to challenge Grayeyes‘s election.26 We therefore
do not address the remainder of Laws‘s arguments on appeal. In
addition, because Laws does not have standing, the district court
lacked jurisdiction to decide this case on the merits.27 So we vacate
the district court‘s decision without assessing its correctness,
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23 Id. ¶ 17 (citation omitted) (internal quotation marks omitted).
24 Id. ¶ 16.
25 See State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (―[A]
reviewing court will not address arguments that are not adequately
briefed.‖); see UTAH R. APP. P. 24(a)(8). (―The argument must explain,
with reasoned analysis supported by citations to legal authority and
the record, why the party should prevail on appeal.‖).
26 Justice Pearce raises questions about our standing caselaw,
concluding that ―it is clear that there is work to be done‖ to ascertain
the limits imposed by the Utah Constitution on the judicial
department. Infra ¶ 112. But he concurs in our result, acknowledging
that we are in ―no position‖ to resolve this issue in this case. Infra
¶ 112. Because addressing the issues raised by Justice Pearce is
unnecessary to resolve the case before us, we take no position on
them.
27 See Jones, 2007 UT 20, ¶ 12.
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including its conclusion that Grayeyes is a resident of San Juan
County under Utah Code section 20A-2-105(1)(a).
II. Grayeyes Is Not Entitled to Attorney Fees
¶38 On cross appeal, Grayeyes contends the trial court erred in
denying his application for attorney fees and court costs under
general equitable principles and the private attorney general
doctrine. Grayeyes advances two arguments, which we address in
turn.
¶39 First, Grayeyes argues that the district court erred by relying
on Utah Code section 78B-5-825 in denying his application for fees.
According to Grayeyes, this statute imposes an unconstitutional
limit on Utah courts‘ authority to grant fees according to general
equitable principles. We disagree, however, because section 78B-5-
825 does not limit courts‘ authority in the way Grayeyes describes.
¶40 Second, he argues that the Utah Legislature‘s disavowal of
the private attorney general doctrine is unconstitutional. We decline
to address this argument because, regardless of the vitality of the
private attorney general doctrine, it would not apply here.28
A. There Was No Bad Faith
¶41 On cross appeal, Grayeyes argues the court erred in relying
on Utah Code section 78B-5-825 to deny his application for attorney
fees. The court concluded that because Laws had not filed suit in bad
faith, Grayeyes‘s claim did not fall within that statute‘s authorization
for an award of fees. Grayeyes argues that this statute
unconstitutionally limits Utah courts‘ authority to award attorney
fees under general equitable principles. In Grayeyes‘s view, the
district court should have also considered whether Laws had acted
―vexatiously, wantonly, or for oppressive reasons.‖ We disagree.
Section 78B-5-825 does not limit a court‘s authority to award fees in
the way Grayeyes describes.
¶42 Although we generally only award attorney fees to
prevailing parties when authorized by statute or contract, ―[t]he
absence of such authority . . . does not bar the court from awarding
attorney fees ‗when it deems it appropriate in the interests of justice
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28 See, e.g., State v. Wood, 648 P.2d 71, 82 (Utah 1982) (―It is a
fundamental rule that we should avoid addressing a constitutional
issue unless required to do so.‖).
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and equity.‘‖29 Such fees may be justified in cases ―in which the
nonprevailing party acted ‗in bad faith, vexatiously, wantonly, or for
oppressive reasons.‘‖30 In his application for attorney fees, Grayeyes
asked the district court to grant an award of fees under these general
equitable principles.
¶43 Quoting Utah Code section 78B-5-825, the district court
stated that ―before awarding attorney fees for bad faith, [it] must
find that the action was both . . . ‗without merit and not brought or
asserted in good faith.‘‖ The court found that Laws had filed his
complaint under section 20A-4-403 and presented appropriate
grounds for challenging Grayeyes‘s eligibility to serve as county
commissioner under subsections 20A-4-402(1)(b) and (g). The court
also found that Laws had relied on a reasonable interpretation of the
residency requirement found in section 20A-2-105 and presented
credible evidence suggesting that Grayeyes did not reside on Navajo
Mountain. Accordingly, the district court concluded that Laws had
not filed suit in bad faith and therefore denied Grayeyes‘s
application for attorney fees under general equitable principles.
¶44 On appeal, Grayeyes argues that the ―or‖ in the list of
factors commonly considered in awarding attorney fees in our case
law required the district court to consider not only whether Laws
filed suit in bad faith, but also whether he acted vexatiously,
wantonly, or oppressively.31 In Grayeyes‘s view, the district court‘s
reliance on section 78B-5-825 was in error because the statute
imposes an unconstitutional limitation on Utah courts‘ authority to
award attorney fees according to principles of justice and equity. But
section 78B-5-825 imposes no such limitation.
¶45 As the district court explained, section 78B-5-825 allows a
court to award attorney fees where ―the action or defense to the
action was without merit and not brought or asserted in good faith.‖
And in our case law we have defined ―good faith‖ in this context as
meaning ―(1) [a]n honest belief in the propriety of the activities in
question; (2) no intent to take unconscionable advantage of others;
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29Doctors’ Co. v. Drezga, 2009 UT 60, ¶ 32, 218 P.3d 598 (citation
omitted).
30 Id. (citation omitted).
31 See Stewart v. Utah Pub. Serv. Comm’n, 885 P.2d 759, 782 (Utah
1994); Shurtleff v. United Effort Plan Tr., 2012 UT 47, ¶ 23, 289 P. 3d
408; Jensen v. Bowcut, 892 P. 2d 1053, 1058 (Utah Ct. App. 1995).
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and (3) no intent to, or knowledge of the fact that the activities in
question will hinder, delay, or defraud others.‖32 Grayeyes has not
demonstrated that this broad definition leaves any of the factors he
cites by the wayside.
¶46 ―Vexatious‖ is defined as ―intended to harass.‖33 ―Wanton‖
means ―having no just foundation or provocation: malicious.‖34 And
―oppressive‖ means ―unreasonably burdensome or severe.‖35 These
definitions closely parallel our interpretation of ―good faith‖ as used
in section 78B-5-825. So we reject Grayeyes‘s argument that this
statute imposes an unconstitutional limitation on courts‘ authority to
award fees.
¶47 In summary, we reject Grayeyes‘s argument that the court
erred in relying on section 78B-5-825. This statute does not impose an
unconstitutional limitation on Utah courts‘ authority to award
attorney fees under general equitable principles. Our definition of
―good faith‖ as used in the statute encompasses actions filed
―vexatiously, wantonly, or for oppressive reasons.‖ Having
concluded that there is no bad-faith basis for an award of fees, we
turn to Grayeyes‘s argument under the private attorney general
doctrine.
B. Even Assuming Its Continued Vitality, the Private Attorney
General Doctrine Would Not Apply Here
¶48 Grayeyes argues that the district court erred in denying him
attorney fees under the private attorney general doctrine. To support
this claim, he argues that by disavowing the private attorney general
doctrine the Utah Legislature unconstitutionally interfered in the
judiciary‘s authority to regulate the practice of law. But, even
assuming that to be true, Grayeyes would not be entitled to attorney
_____________________________________________________________
32 In re Discipline of Sonnenreich, 2004 UT 3, ¶ 48, 86 P.3d 712(alteration in original) (citation omitted) (internal quotation marks
omitted).
33 Vexatious, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/vexatious (last visited Sept. 14, 2021).
34 Wanton, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/wanton (last visited Sept. 14, 2021).
35 Oppressive, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/oppressive (last visited Sept. 14, 2021.
14
Cite as: 2021 UT 59Opinion of the Court
fees. So we affirm the district court‘s denial of fees under the private
attorney general doctrine.
¶49 ―As a general rule, Utah courts award attorney fees only to a
prevailing party, and only when such action is permitted by either
statute or contract.‖ 36 But ―[t]he absence of such authority . . . does
not bar the court from awarding attorney fees ‗when it deems it
appropriate in the interests of justice and equity.‘‖37 We have held
that an award of attorney fees may be justified in cases ―in which the
nonprevailing party acted ‗in bad faith, vexatiously, wantonly, or for
oppressive reasons.‘‖38
¶50 On rare occasions in the past, we have also awarded fees
according to the private attorney general doctrine, under which a
court may award fees to a plaintiff who ―vindicat[es] . . . a strong or
societally important public policy‖ in a way that ―transcend[s] the
individual plaintiff‘s pecuniary interest . . . .‖39 We first recognized
this exception to the general rule in Stewart v. Utah Public Service
Commission, in which the plaintiffs prevailed in challenging an order
of the Public Service Commission which had unlawfully increased
the rates it charged for a public utility.40 We concluded that an award
of attorney fees was appropriate because the plaintiffs, ―a handful of
ratepayers acting entirely on their own,‖ had ―successfully
vindicated an important public policy benefitting all of the
ratepayers in the state.‖41 They had gone beyond their own
―pecuniary interest‖ and ―conferred substantial benefits on all . . .
ratepayers‖ in the state.42 We noted, however, that this was an
―exceptional‖ case, and observed that ―any future award of attorney
fees under [the private attorney general] doctrine [would] take an
equally extraordinary case.‖43
_____________________________________________________________
36 Drezga, 2009 UT 60, ¶ 32.
37 Id. (quoting Stewart, 885 P.2d at 782).
38 Id. (quoting Stewart, 885 P.2d at 782.).
39 Stewart, 885 P.2d at 783 (citation omitted).
40 Id. at 784.
41 Id. at 783.
42 Id.
43 Id. at 783 n.19.
15
LAWS v. GRAYEYES
Opinion of the Court
¶51 The only other case in which we have awarded fees under
this doctrine is Utahns for Better Dental Health-Davis, Inc. v. Davis
County Clerk.44 We concluded that a nonprofit group was entitled to
fees after it vindicated Davis County citizens‘ right to legislate via
initiative in the face of unlawful interference by the county clerk. 45
During the 2000 general election, a majority of Davis County voters
supported an initiative to add fluoride to the local water supply.46
After the election, a group of residents opposed to fluoride filed a
petition to have a revote. 47 In response to the petition, the county
clerk decided to include a revote question on the ballot during the
next general election.48 A nonprofit group, Utahns for Better Dental
Health-Davis, challenged the clerk‘s decision and prevailed, arguing
that the revote initiative was unconstitutional and therefore should
not be included on the ballot.49
¶52 Considering whether the nonprofit group was entitled to
fees, we explained that, ―[i]n private attorney general cases, the
threshold issue is a rather transcendent, large picture question of
public policy, namely, whether an important right affecting the
public interest has been vindicated.‖50 We concluded that the
plaintiffs had met this threshold because their case ―implicated the
sacrosanct and fundamental right of the people to directly legislate
through the constitutional processes of initiative and referenda.‖51
The nonprofit group had vindicated that right by successfully
challenging the county clerk‘s unlawful interference with that
right.52
_____________________________________________________________
44 2007 UT 97, 175 P.3d 1036.
45 Id. ¶¶ 9–10.
46 Id. ¶ 2.
47 Id.
48 Id.; see UTAH CODE § 20A–7–501(3)(d) (stating ―[i]f a county . . .
takes no action on a proposed law, the county clerk shall submit the
proposed law to the voters of the county at the next regular general
election‖).
49 Utahns for Better Dental Health-Davis, 2007 UT 97, ¶ 3.
50 Id. ¶ 8.
51 Id. ¶ 9.
52 Id. ¶ 10.
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¶53 The Utah Court of Appeals has awarded fees under the
private attorney general doctrine only once, in Culbertson v. Board of
County Commissioners of Salt Lake County.53 In that case, two
individuals challenged Salt Lake County‘s authorization of a private
development project in conflict with its own ordinances.54 The court
of appeals concluded that an award of fees was warranted because,
although the plaintiffs personally wanted the development project to
fail, they had also ―vindicated an important public policy‖ by
―curbing the County‘s willful disregard of its own ordinances and
procedures.‖55 The court of appeals so concluded because ―courts in
other jurisdictions have found‖ that the public has an interest in
thwarting the illegal conduct of a local governing body.56
¶54 But the private attorney general doctrine‘s moment in the
sun was short-lived.57 The legislature explicitly disavowed it in Utah
Code section 78B-5-825.5, which states that ―[a] court may not award
attorney fees under the private attorney general doctrine in any
action filed after May 12, 2009.‖ Notwithstanding this, Grayeyes
asked the district court to award him fees under the private attorney
_____________________________________________________________
53 2008 UT App 22, 177 P.3d 621. In one other case, the court of
appeals did not award fees because it remanded for further
consideration of whether the ―‗necessary costs of litigation . . .
transcend[ed] [plaintiffs‘] pecuniary interest‘ to a degree that
warrants attorney fees‖ under the private attorney general doctrine.
Highlands at Jordanelle, LLC v. Wasatch Cnty., 2015 UT App 173, ¶ 40,
355 P.3d 1047 (citation omitted). In reaching that result, however, the
court of appeals concluded that the plaintiffs had vindicated an
important public policy by challenging a fire district‘s charging of
local developers for unauthorized fire-protection fees. Id. ¶ 36. We
do not address this case because it does not depart from the court of
appeals‘ approach in Culbertson in a way that is material to our
analysis.
54 Culbertson, 2008 UT App 22, ¶ 3.
55 Id. ¶¶ 11, 13.
56 Id. ¶ 14.
57 To be clear, we mean that the doctrine‘s moment in the sun is
over only in the sense that it has been explicitly disavowed by the
legislature. We do not address the constitutionality of that
disavowal.
17
LAWS v. GRAYEYES
Opinion of the Court
general doctrine, arguing that the legislature‘s disavowal of the
doctrine was unconstitutional.
¶55 In his application for fees, Grayeyes presented two grounds
for an award of fees under the private attorney general doctrine.
First, he argued that he had vindicated an important public policy by
demonstrating that he was a resident of San Juan County under the
election code despite not residing in one fixed abode, ―establish[ing]
an important precedent under the Utah elections code with peculiar
benefit to a racially distinct minority in San Juan County,‖ Native
Americans.58 Second, Grayeyes argued that he had ―preserved the
democratic choice by most voters in the 2018 election‖ in defending
himself against Laws‘s challenge to his qualifications to hold office.
¶56 The district court concluded that the legislature‘s disavowal
of the doctrine was constitutional, and, regardless, an award of
attorney fees was not warranted. The district court noted that this
―case [was] specific to one person and his qualification for office
based on his residency‖; unlike in Stewart, there were ―no similarly-
situated defendants that would benefit from this litigation.‖ It ―was
a straightforward election challenge authorized by statute.‖
¶57 On appeal, Grayeyes argues that we should disregard the
district court‘s consideration of the merits of his application for fees
under the private attorney general doctrine because the court had
already concluded the legislature‘s disavowal of this doctrine was
constitutional. In his view, we should hold the disavowal
unconstitutional and remand for development of the record on this
issue. We disagree. Even assuming the vitality of the private
attorney general doctrine, both of Grayeyes‘s preserved grounds for
an award of fees under the doctrine are unavailing. We address and
reject each of those grounds in turn.
¶58 First, Grayeyes argues that he has vindicated an important
public policy by ―establish[ing] an important precedent‖ regarding
the election code‘s residency requirement. But in concluding that
Laws lacks standing, we affirm the district court without reaching
the correctness of its decision regarding Grayeyes‘s residency. Had
the district court correctly concluded that Laws lacked standing, it
would not have reached this either. As explained above, we
therefore vacate the district court‘s decision regarding the election
code‘s residency requirement. In other words, although Grayeyes
_____________________________________________________________
58 See supra ¶ 18.
18
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prevails on appeal, he has not secured the result he presented as a
ground for an award of fees below.
¶59 Second, Grayeyes argues he has vindicated an important
public policy in seeking to ―preserve the democratic choice by most
voters‖ in the county. Granted, enough registered voters in San Juan
County cast their votes for Grayeyes to secure his election as county
commissioner. And, in defending his election to office, Grayeyes has
sought to preserve that result—one that many members of the public
apparently wanted. But there can be no vindication of an important
public policy where there is no unlawful interference.
¶60 All three of the cases in which we or the court of appeals
awarded fees under the private attorney general doctrine involved a
challenge to unlawful government conduct. And in all three of these
cases, someone stepped in on behalf of the public to challenge that
unlawful conduct. But Laws‘s election challenge was not unlawful.
Although we conclude that Laws lacks standing, his election
challenge was otherwise explicitly authorized by statute. 59 So
Grayeyes, in successfully defending his qualifications to hold office,
has not thwarted an unlawful interference with the public‘s right to
vote.
¶61 Moreover, this case is not about whether Grayeyes received
a majority of votes. Laws initiated this lawsuit to challenge
Grayeyes‘s qualifications to hold office. And while the right to vote
is sacrosanct, it does not include the right to elect an unqualified
candidate.60 So, to ―preserve the democratic choice‖ of most voters,
Grayeyes would need to demonstrate that he is qualified to hold
_____________________________________________________________
59 Supra ¶ 35; see UTAH CODE § 20A-4-403(1) (―[A] registered voter
shall contest the right of any person declared elected to any office by
filing a verified written complaint with the district court of the
county in which he resides within 40 days after the canvass.‖).
60 See UTAH CODE § 20A-4-402(1)(b) (including as grounds for
challenging an election that ―the person declared elected was not
eligible for the office at the time of the election‖); id. § 20A-4-406(2)
(―Whenever an election is . . . set aside by the judgment of a court . . .
the certificate of election . . . is void, and the office is vacant.‖); id.
§ 20A-1-508(3)(b)(i) (In the event of a vacancy, ―[t]o appoint an
interim replacement, the county legislative body shall . . . give notice
of the vacancy to the party liaison of the same political party of the
prior office holder and invite that party liaison to submit the name of
an individual to fill the vacancy.‖).
19
LAWS v. GRAYEYES
Opinion of the Court
office. But because we decide this appeal on narrow grounds,
Grayeyes has secured a narrow victory: In the end, Grayeyes has
demonstrated only that Laws lacks standing. This victory is specific
to him in this case. The mere existence of parties not in court who
want Grayeyes to succeed does not elevate this case to the realm of
the private attorney general doctrine.
¶62 In summary, assuming the continued vitality of the private
attorney general doctrine, we reject both of Grayeyes‘s preserved
justifications for fees. Because we conclude that Laws lacks standing,
we vacate the district court‘s decision regarding the election code‘s
residency requirement. So we reject Grayeyes‘s argument that he has
secured an important precedent for Native Americans in San Juan
County. We also conclude that Grayeyes has not vindicated an
important public policy in defending himself in this case because he
has not thwarted an unlawful government action and his victory is
specific to him.
¶63 Because, as explained above, Grayeyes is also not entitled to
fees under his bad-faith argument, we affirm the district court‘s
denial of fees.
Conclusion
¶64 Laws has not alleged a sufficiently particularized injury to
support traditional standing. And because he has not adequately
briefed the issue of whether statutory standing can be sufficient on
its own, we conclude he lacks standing to challenge Grayeyes‘s
election as county commissioner and dismiss this claim.
¶65 We also reject Grayeyes‘s argument that the district court
erred in denying his application for attorney fees. We reject his
argument that the court erred in relying on section 78B-5-825. This
statute does not impose an unconstitutional limitation on courts‘
authority to award fees according to general equitable principles.
And Grayeyes would not be entitled to fees under the private
attorney general doctrine, even assuming its continuing vitality,
because he has not conferred a significant benefit to the public as a
result of defending himself in this case. So we affirm the decision of
the district court.
20
Cite as: 2021 UT 59LEE, A.C.J., concurring in part and concurring in the judgment
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
¶66 I agree with the majority‘s determination that Kelly Laws
failed to identify the kind of private injury that is necessary to the
establishment of his standing as a plaintiff in this case. I also agree
with its conclusion that Willie Grayeyes failed to establish a basis for
an award of attorney fees under the ―private attorney general
doctrine‖ set forth in a body of case law.
¶67 I concur in the opinion of the court on the first point but
only the judgment of the court on the second. 61 And I write
separately to (1) elaborate on the basis for dismissal of this case on
standing grounds in light of questions raised in the concurring
opinion of Justice Pearce; and (2) identify an alternative ground for
denial of Grayeyes‘s request for attorney fees.
I
¶68 This is a public rights action filed by a private party. The
plaintiff (Laws) initiated it in an attempt to vindicate a societal
interest in assuring compliance with Utah election law. He identified
no private interest in the disposition of the case and sought no
remedy that was specific to any such interest. He lacks standing on
that basis. See supra ¶ 30 (concluding that Laws lacks standing
because he is seeking to vindicate an interest shared by ―all
registered voters in San Juan County‖).
¶69 Justice Pearce writes separately to ―question the suggestion
that the Utah Constitution might prevent the Utah Legislature from
granting standing to a plaintiff who cannot meet ‗traditional‘
standing requirements.‖ Infra ¶ 77. He suggests that (1) our cases
have relied too much on ―federal and secondary sources that don‘t
tell us much about the meaning of the Utah Constitution‖; (2) the
doctrine of ―public interest standing‖ may undermine any
―requirement that a plaintiff . . . demonstrate a ‗particularized injury‘
different from other ‗members of the public at large‘‖; and (3) there
may be no logical or textual basis for ―any assumption that
separation of powers concerns bar the Legislature from statutorily
granting standing.‖ Infra ¶¶ 78–80. And he accordingly questions the
majority‘s conclusion ―that the Utah Constitution might prevent the
_____________________________________________________________
61 I also concur in the majority‘s analysis of Grayeyes‘s request for
attorney fees under Utah Code section 78B-5-825. I thus concur in
Parts I and II.A. of the majority opinion but not in Part II.B.
21
LAWS v. GRAYEYES
LEE, A.C.J., concurring in part and concurring in the judgment
Utah Legislature from granting standing to a plaintiff who cannot
meet ‗traditional‘ standing requirements.‖ Infra ¶ 77.
¶70 The essence of my response is set forth in my opinions in
Gregory v. Shurtleff, 2013 UT 18, 299 P.3d 1098, and In re Gestational
Agreement, 2019 UT 40, 449 P.3d 69. There, I acknowledged that the
Utah Constitution lacks a ―case or controversy‖ clause but
established that it nonetheless limits our courts to the exercise of
―judicial power‖—as by the issuance of ―writs‖ and the disposition
of ―cases.‖ In re Gestational Agreement, 2019 UT 40, ¶¶ 163–65, (Lee,
A.C.J., concurring); Gregory, 2013 UT 18, ¶¶ 69, 73–74 (Lee, J.,
concurring in part and dissenting in part). And I demonstrated that
the historical understanding of the judicial power limits ―private
plaintiffs‖ to the vindication of ―private rights‖ while reserving the
protection of ―public rights‖ to ―government representatives suing
for the public in court.‖ Gregory, 2013 UT 18, ¶¶ 70, 90 (Lee, J.,
concurring in part and dissenting in part). On this basis, I also
asserted that this court‘s doctrine of ―public interest standing‖ is
incompatible with the original understanding of the judicial power
under the Utah Constitution. Id. ¶ 105.
¶71 These are still my views. Laws lacks standing not because
our Utah doctrine of standing must ―mimic[] the one the U.S.
Supreme Court imposes through its interpretation of the federal
constitution,‖ infra ¶ 77, but because our courts lack the power to
resolve a public rights action filed by a private party. This is a core
tenet of the longstanding limits on our judicial power. I see no basis
for setting it aside.62
_____________________________________________________________
62 I will refrain from restating points I have developed in detail in
prior cases. I note my disagreement, however, with the suggestion
that my approach is in any way called into question by the opinions
in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). Both the
majority and dissenting opinions in TransUnion reinforce my central
point. They agree that courts have long held that injury to a
―concrete,‖ ―private‖ interest is required to sustain standing for a
private plaintiff. See id. at 2204 (holding that a private plaintiff has
standing to seek redress for an ―injury‖ that ―has a close relationship
to a harm traditionally recognized as providing a basis for a lawsuit
in American courts‖ (citation and internal quotation marks
omitted)); id. at 2217 (Thomas, J., dissenting) (stating that
historically, ―whether a court possessed judicial power over an
action with no showing of actual damages depended on whether the
(Continued)
22
Cite as: 2021 UT 59LEE, A.C.J., concurring in part and concurring in the judgment
II
¶72 Grayeyes sought attorney fees under a body of case law
establishing a ―private attorney general doctrine.‖ Yet the legislature
overruled that case law. It expressly provided that ―[a] court may
not award attorney fees under the private attorney general doctrine
in any action filed after May 12, 2009.‖ UTAH CODE § 78B-5-825.5.
plaintiff sought to enforce a right held privately by an individual or
a duty owed broadly to the community‖); id. at 2220 (Thomas, J.,
dissenting) (―Vindicating the public interest . . . is the function of [the
legislative and executive branches]. The province of the court, in
contrast, is, solely, to decide on the rights of individuals.‖ (emphasis
in original) (citations and internal quotation marks omitted)).
The disagreement between the majority and dissent in
TransUnion is about an issue not before us here—as to the effect of a
legislative establishment of a concrete, private interest. The majority
refused to treat such a legislative determination as conclusive,
holding that the ―concrete-harm requirement‖ may be ―difficult to
apply‖ but is nonetheless essential even where Congress seeks to
establish a statutorily defined private injury. See id. at 2206–07. And
the dissent saw that narrow point differently. It suggested that the
―test should be clear‖ in that ―[s]o long as a statute fixes a minimum
of recovery‖ for infringement of a private, statutory right, there
should be ―no doubt of the right of one who establishes a technical
ground of action to recover this minimum sum . . . .‖ Id. at 2218
(Thomas, J., dissenting) (asserting that ―courts for centuries held that
injury in law to a private right was enough‖ to establish standing)
(emphasis added)). Even the dissent, however, was not suggesting
that a private plaintiff had standing to sue for injury inflicted on the
public at large, or implying that the legislature had the power to
confer such standing. It openly stated the contrary. See id. at 2217
(Thomas, J., dissenting) (noting that more than ―legal injury‖ was
required historically ―where an individual sued based on the
violation of a duty owed broadly to the whole community‖).
The TransUnion dissent accordingly was not asserting ―that a
legislative body may statutorily‖ establish private standing for any
and all injuries recognized by statute. Infra ¶ 111 n.67. It was simply
crediting the statutory recognition of a private, concrete injury as
constitutionally sufficient. That question is not presented in a case
like this one, which involves a diffused, public injury. And the
TransUnion opinions thus do not undermine the holding reached by
the majority in this case.
23
LAWS v. GRAYEYES
LEE, A.C.J., concurring in part and concurring in the judgment
¶73 Grayeyes challenges the constitutionality of this statute and
asks us to reinvigorate and apply the private attorney general
doctrine to this case. The majority obliges in part. It assumes for the
sake of argument that the doctrine survives the statute. But it holds
that Grayeyes is not entitled to a fee award as a private attorney
general because he has secured a ―victory‖ (through dismissal on
standing grounds) that ―is specific to him in this case.‖ Supra ¶ 61.
¶74 I would approach the matter differently. I would decide the
threshold question of whether the private attorney general doctrine
survives the enactment of the statute. Because Grayeyes has failed to
carry his burden of establishing a basis for striking the statute down
as unconstitutional, I would uphold the statute and conclude that he
has not established a basis for application of a case-based standard
for a fee award.
¶75 Grayeyes asserts that the legislature‘s disavowal of the
private attorney general doctrine is an unconstitutional interference
with the judiciary‘s power to regulate the practice of law under
Injured Workers Association of Utah v. State, 2016 UT 21, 374 P.3d 14.
But the cited opinion does not support his position. In Injured
Workers we ―stress[ed]‖ that our analysis was ―limited to legislative
attempts to regulate the attorney client relationship.‖ Id. ¶ 34 n.7.
And we expressly noted that the legislature retains the power to
regulate the award of attorney fees as a remedy in litigation. Id.¶76 Injured Workers thus has no application here. And Grayeyes
has accordingly failed to carry his burden of establishing a basis for
invoking a case-law basis for his fee award notwithstanding the
enactment of Utah Code section 78B-5-825.5. I would deny his fee
request on that basis.
24
Cite as: 2021 UT 59PEARCE, J., concurring in part and concurring in the judgment
JUSTICE PEARCE, concurring in part and concurring in the
judgment:
¶77 I concur in the result the majority opinion reaches. I
acknowledge that the majority does not explicitly answer the
question of whether the Legislature can confer standing on a plaintiff
who does not meet the requirements for traditional standing. See
supra ¶ 37 (―[W]e decline to rely on dicta from Morgan to resolve the
question of whether the Utah Legislature . . . intended to grant
standing to a plaintiff by statute when that plaintiff has not met the
requirements for traditional standing.‖). And I concur in the
majority‘s conclusion that Greyeyes has not provided this court with
sufficient briefing to resolve that issue. See supra ¶ 37. But I write
separately, as I did in In re Gestational Agreement, 2019 UT 40, ¶¶ 56–
98, 449 P.3d 69 (Pearce, J., concurring), because I have serious doubts
about the extent to which the Utah Constitution requires a standing
test that mimics the one the U.S. Supreme Court imposes through its
interpretation of the federal constitution. And that causes me to
question the suggestion that the Utah Constitution might prevent the
Utah Legislature from granting standing to a plaintiff who cannot
meet ―traditional‖ standing requirements.
¶78 I question that suggestion for three reasons. First, a dive into
our standing jurisprudence reveals a problematic reliance on federal
and secondary sources that don‘t tell us much about the meaning of
the Utah Constitution.
¶79 Second, I cannot reconcile a requirement that a plaintiff
must demonstrate a ―particularized injury‖ different from other
―members of the public at large,‖ supra ¶¶ 28, 31 (citations omitted),
with this court‘s recognition of public interest standing as an
alternative to ―traditional‖ standing. See Gregory v. Shurtleff, 2013 UT
18, ¶¶ 13–15, 299 P.3d 1098.
¶80 Third, I question the logic and textual basis underlying any
assumption that separation of powers concerns bar the Legislature
from statutorily granting standing. See supra ¶¶ 33, 37.
¶81 As a starting point, it is helpful to remember the different
origins of federal and state standing doctrines. Federal standing
requirements stem from the language of Article III, Section 2 of the
U.S. Constitution, which provides that ―[t]he Judicial Power shall
extend to‖ certain types of ―Cases‖ and ―Controversies.‖ See also
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (explaining that ―the
core component of standing‖ in federal courts—injury, causation,
and redressability—―is an essential and unchanging part of the case-
or-controversy requirement of Article III‖); TransUnion LLC v.
25
LAWS v. GRAYEYES
PEARCE, J., concurring in part and concurring in the judgment
Ramirez, 141 S. Ct. 2190, 2203 (2021) (explaining that traditional
standing, or ―Art. III standing[,] is built on a single basic idea—the
idea of separation of powers,‖ which comes from the language of
Article III ―confin[ing] the federal judicial power to the resolution of
‗Cases‘ and ‗Controversies‘‖ (citation omitted)).
¶82 Federal standing requirements do not bind state courts. The
U.S. Supreme Court has recognized on multiple occasions that ―the
constraints of Article III do not apply to state courts, and accordingly
the state courts are not bound by the limitations of a case or
controversy or other federal rules of justiciability even when they
address issues of federal law.‖ ASARCO Inc. v. Kadish, 490 U.S. 605,
617 (1989) (holding that it was the ―right‖ of Arizona state courts to
take ―no account of federal standing rules‖ in state court, even on a
matter interpreting federal law); see City of Los Angeles v. Lyons, 461
U.S. 95, 113 (1983) (―[S]tate courts need not impose the same
standing or remedial requirements that govern federal court
proceedings.‖).
¶83 The majority opinion acknowledges, as we have in the past,
that unlike the federal constitution, ―the Utah Constitution includes
no . . . express limitation [on Utah courts‘ jurisdiction].‖ See supra
¶ 33 (alteration in original) (quoting Brown v. Div. of Water Rts. of
Dep’t of Nat. Res., 2010 UT 14, ¶ 12, 228 P.3d 747); see also Shurtleff,
2013 UT 18, ¶ 12 (―‗Unlike the federal system, the judicial power of
the state of Utah is not constitutionally restricted by the language of
Article III of the United States Constitution requiring ―cases‖ and
―controversies,‖ since no similar requirement exists in the Utah
Constitution.‘‖ (quoting Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah
1983)). That is, we all agree that the Utah Constitution omits the
language that federal courts have used to justify the imposition of
standing requirements.
¶84 Despite that omission, we have nevertheless sometimes
talked, as the majority does here, as if the Utah Constitution
somehow anticipated and incorporated the evolving federal
standing jurisprudence. See supra ¶¶ 33–34, 37. For example, the
majority states that, to ensure compliance with separation of powers
principles, ―we require a plaintiff to demonstrate a personal stake in
the outcome of a dispute.‖ See supra ¶ 34 (citing Jenkins, 675 P.2d at
1149; Soc’y of Pro. Journalists, Utah Chapter v. Bullock, 743 P.2d 1166,
1170 (Utah 1987); Terracor v. Utah Bd. of State Lands & Forestry, 716
P.2d 796, 799 (Utah 1986)). And the majority describes a three-part
test for ―traditional standing‖ that includes injury, causation, and
redressability, which resembles the federal courts‘ standing test.
Compare supra ¶ 27 (quoting S. Utah Wilderness All. v. San Juan Cnty.
26
Cite as: 2021 UT 59PEARCE, J., concurring in part and concurring in the judgment
Comm’n, 2021 UT 6, ¶ 14, 484 P.3d 1160), with Lujan, 504 U.S. at 560–
61. As detailed below, there are reasons to believe that the Utah
Constitution may not actually impose these standing requirements,
and that the better way to view them are as prudential standards
that we generally impose upon would-be litigants.
I. THE EVOLUTION OF OUR STANDING DOCTRINE
¶85 This court has at times described standing in general, and
traditional standing in particular, as a requirement the Utah
Constitution imposes. See, e.g., Brown v. Div. of Water Rts. of Dep’t of
Nat. Res., 2010 UT 14, ¶ 12, 228 P.3d 747. But if we hunt that idea
back to its roots, we find a shaky foundation, rife with
inconsistencies and unanswered questions about whether the Utah
Constitution actually requires traditional standing as a ―jurisdictional
prerequisite.‖ See In re Gestational Agreement, 2019 UT 40, ¶ 60, 449
P.3d 69 (Pearce, J., concurring).
¶86 The authority we cite for the proposition that Utah‘s
standing doctrine has constitutional origins can be traced primarily
to Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983), Baird v. State, 574
P.2d 713, 717 (Utah 1978), and a case they both cite, Lyon v. Bateman,
228 P.2d 818, 820–21 (Utah 1951).63
_____________________________________________________________
63 These cases echo largely unexamined throughout our
jurisprudence. For example, when we said in Brown that the Utah
Constitution ―mandates certain standing requirements,‖ 2010 UT 14,
¶ 12, we relied on Jenkins, 675 P.2d at 1149. In turn, Jenkins relied on
Baird, 574 P.2d at 717, and multiple federal cases. See Jenkins, 675 P.2d
at 1149–50.
Similarly, when we cautioned in Society of Professional Journalists,
Utah Chapter v. Bullock that omitting traditional standing
requirements risks inserting courts into disputes ―more
appropriately directed to the legislative and executive branches,‖ 743
P.2d 1166, 1170 (Utah 1987), we were quoting Jenkins, 675 P.2d at
1149.
And in Terracor v. Utah Board of State Lands & Forestry, when we
discussed the ―separation of powers‖ roots of our ―standing law‖
and said we will ―not lightly dispense with the requirement that a
litigant have a personal stake in the outcome of a specific dispute,‖
716 P.2d 796, 798–99 (Utah 1986), we relied on Jenkins, 675 P.2d at
1150, and Baird, 574 P.2d at 717. We also relied on federal cases. See
Terracor, 716 P.2d at 798–99.
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LAWS v. GRAYEYES
PEARCE, J., concurring in part and concurring in the judgment
¶87 The plaintiffs in Jenkins, Baird, and Lyon all sought relief
under Utah‘s declaratory judgment statute. See Jenkins, 675 P.2d
at 1148; Baird, 574 P.2d at 715; Lyon, 228 P.2d at 821. That statute
provides:
A person . . . whose rights, status, or other legal
relations are affected by a statute . . . may request the
district court to determine any question of construction
or validity arising under the . . . statute . . . and obtain a
declaration of rights, status, or other legal relations.
UTAH CODE § 78B-6-408.
¶88 In the oldest of these cases, Lyon, we stated that when
dealing with ―statutes authorizing courts to render declaratory
relief,‖ courts ―must operate within the constitutional and statutory
powers and duties imposed upon them.‖ Lyon, 228 P.2d at 820. We
observed,
Generally, courts have held that the conditions which
must exist before a declaratory judgment action can be
maintained are: (1) a justiciable controversy; (2) the
interests of the parties must be adverse; (3) the party
seeking such relief must have a legally protectible
interest in the controversy; and (4) the issues between
the parties involved must be ripe for judicial
determination.
Id. at 820–21.
¶89 We provided no citation for that test, but it appears we lifted
it directly from a treatise that does not focus on Utah law and makes
no reference to the Utah Constitution. See WALTER H. ANDERSON,
ACTIONS FOR DECLARATORY JUDGMENTS § 42, at 125 (1940) (hereinafter
ANDERSON (1940)) (providing a nearly identical four-part test for
obtaining declaratory relief). Lyon also quotes a passage from that
treatise—which in turn relies on a U.S. Supreme Court case
interpreting federal law—to elaborate on the ―type of justiciable
controversy which must exist before declaratory relief can be
granted‖ and to define ―controversy‖ based on ―the sense in which
the word is used in the Constitution in defining judicial power,
particularly of the Federal Courts.‖ Lyon, 228 P.2d at 821 (quoting
ANDERSON (1940), supra ¶ 89, § 8, at 27 (citing Aetna Life Ins. Co. of
Hartford, Conn. v. Haworth, 300 U.S. 227 (1937))).
¶90 In other words, in Lyon, we reached our conclusions about
the purported ―constitutional‖ ―controversy‖ requirements
associated with declaratory judgments without acknowledging that
the Utah Constitution contains no case and controversy requirement.
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Nor did we attempt to analyze what the omission of that language
might mean. We likewise failed to examine the explicit separation of
powers clause found in article V, section 1 of the Utah Constitution.
Instead of analyzing our constitution to discover what our
constitution requires, we pulled a treatise off the shelf—a treatise
that primarily interprets the federal Declaratory Judgment Act, the
federal constitution, and their application in federal courts. See
ANDERSON (1940), supra ¶ 89, § 7, at 26 (citing Aetna Life Ins. Co., 300
U.S. 227). As such, we talked about constitutional requirements
without ever considering our constitution.
¶91 We took a similar route to reach similar conclusions in Baird.
In Baird, we relied heavily on the above-discussed treatise to
interpret the phrase ―rights, status and other legal relations‖ in
Utah‘s declaratory judgment statute. See 574 P.2d at 715 (citation
omitted). We opined that language evinced a legislative intent to
require ―a justiciable controversy where there is an actual conflict
between interested parties asserting adverse claims on an accrued
state of facts as opposed to a hypothetical state of facts.‖ Id. (citing 1
ANDERSON, DECLARATORY JUDGMENTS § 9, at 13 (2d ed., 1959 Supp.)
(hereinafter ANDERSON (1959)). In other words, we used the
Anderson treatise to support a conclusion about what the Utah
Legislature intended the state statute to require.
¶92 Further following Anderson‘s lead, we said that the statute
―recognizes the constitutional limitations upon the courts to
determine only cases and controversies.‖ Id. at 716 (citing ANDERSON
(1959), supra ¶ 89, § 9, at 49–50). And we again cited Anderson when
we tied standing requirements for declaratory judgments to
―[j]udicial adherence to the doctrine of separation of powers.‖ Id.
(citing ANDERSON (1959), supra ¶ 89, § 16, at 65–66). We also cited a
federal case to support our reasoning that allowing a ―generalized
grievance‖ would improperly ―cast the courts in the role of
supervising the coordinate branches of government.‖ Id. at 717
(citing United States v. Richardson, 418 U.S. 166, 177–80 (1974), and id.at 188–92 (Powell, J. concurring)). That means that Baird reached its
conclusions about the purported ―constitutional‖ ―controversy‖
limitations of Utah‘s declaratory judgment statute without ever
acknowledging, let alone analyzing, the absence of a ―cases and
controversies‖ requirement in Utah‘s constitution.
¶93 In Jenkins, we repeated the four-part test we had described
in Baird and Lyon. Jenkins, 675 P.2d at 1148; see also supra ¶ 88. And
we interpreted the second and third elements—requiring adversity
between parties and that the party seeking relief have a ―legally
protectible interest in the controversy‖—as ―represent[ing] the
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LAWS v. GRAYEYES
PEARCE, J., concurring in part and concurring in the judgment
traditional test for standing.‖ Id. We then went on to discuss the role
that ―separation of powers‖ plays in requiring a ―personal stake in
the outcome of a legal dispute.‖ See id. at 1148–50. In doing so, we
primarily relied on federal cases interpreting federal law. See id. at
1149 (citing Flast v. Cohen, 392 U.S. 83 (1968), and Valley Forge
Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S.
464 (1982)). Even though we were focused on separation of powers
principles, we entirely failed to account for the Utah Constitution‘s
express separation of powers provision. Indeed, we did not even
consider that the Utah Constitution has a distribution of powers
article.
¶94 In sum, Lyon, Baird, and Jenkins all appear to rely on the
Anderson treatise and federal law to support their conclusions about
standing requirements for plaintiffs seeking declaratory judgments.
And they left the text of Utah‘s own constitution unexamined. We
should therefore approach those cases‘ conclusions about what the
Utah Constitution requires with a healthy amount of skepticism.
¶95 Moreover, it is not clear that we intended Lyon, Baird, and
Jenkins to apply to all claims and causes of action in the State of Utah.
Lyon, Baird, and Jenkins involved plaintiffs who invoked the
declaratory judgment statute to seek declarations that various
government actions violated the Utah Constitution or statutes. And,
to varying degrees, those cases interpreted the declaratory judgment
statute‘s language. None of those cases involved statutes that
explicitly granted standing to a plaintiff. See Jenkins, 675 P.2d at 1152
(observing that the substantive statutes Jenkins sought to enforce did
―not provide Jenkins with standing to act as a private attorney
general in the enforcement of this statute‖); Baird, 574 P.2d at 715–17
(plaintiff sought declaration that a statute violated constitutional
separation of powers and due process principles); Lyon, 228 P.2d at
820–21 (plaintiff challenged the validity, but not the constitutionality,
of the governor‘s veto of certain school funds).
¶96 This causes me to question the utility of those cases as a
guide to understand what is statutorily required outside of the
declaratory judgment context, let alone what might be
constitutionally required in other situations. It also causes me to
question whether they have much to say about whether the
Legislature can grant statutory standing to those who might not
meet traditional standing requirements.
¶97 As I focus on this question, I find myself increasingly
troubled by the fact that, in more recent cases, we have taken the
language from Jenkins to support imposing standing requirements
on litigants without recognizing that Jenkins interpreted the
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declaratory judgment statute. See, e.g., S. Utah Wilderness All. v. San
Juan Cnty. Comm’n, 2021 UT 6, ¶ 18, 484 P.3d 1160; Brown, 2010 UT
14, ¶ 12; Washington Cnty. Water Conserv. Dist. v. Morgan, 2003 UT 58,
¶ 6 n. 2, 82 P.3d 1125; Soc’y of Pro. Journalists, Utah Chapter v. Bullock,
743 P.2d 1166, 1170 (Utah 1987); Terracor v. Utah Bd. of State Lands &
Forestry, 716 P.2d 796, 798–99 (Utah 1986). Before we extend Jenkins
and Baird yet again, I believe it is incumbent upon us to conduct a
more serious inquiry into the Utah Constitution.
¶98 I acknowledge that in Southern Utah Wilderness Alliance v.
San Juan County Commission we said that, even ―[w]here a plaintiff
falls within a class protected by statute‖ and that statute provides the
plaintiff ―with a right to sue for violations of the [statute],‖ the court
must still determine ―whether the plaintiff has suffered ‗some
distinct and palpable injury that gives him a personal stake in the
outcome of the legal dispute.‘‖ 2021 UT 6, ¶¶ 17–18 (quoting Jenkins,
675 P.2d at 1148). And I acknowledge that I should have raised these
concerns in that case as well. But for all the reasons discussed above,
including that Southern Utah Wilderness Alliance relied on Jenkins, I
strongly question whether we overstated the principle.
¶99 The majority responds that Southern Utah Wilderness Alliance
v. San Juan County Commission ―was consistent with established case
law.‖ See supra ¶ 27 n.8. To be clear, my concern is not that the
majority opinion is out-of-step with what this court has sometimes
said. My concern is that what this court has sometimes said is out-of-
step with what the Utah Constitution requires.
¶100 But even the cases the majority cites demonstrate that we
have often not treated traditional standing as a constitutional
requisite. For example, in Utah Chapter of Sierra Club v. Utah Air
Quality Board, we analyzed ―associational standing.‖ 2006 UT 74,
¶ 21, 148 P.3d. 960. That case reaffirmed the vitality of ―alternative
standing‖ when an ―appropriate party‖ raises ―issues of significant
public importance.‖ Id. ¶¶ 35, 41. Another case the majority cites
similarly stands for the proposition that a party who cannot meet the
traditional test can be granted alternative standing in appropriate
circumstances. See Hogs R Us v. Town of Fairfield, 2009 UT 21, ¶ 9, 207
P.3d 1221. Our continued recognition of alternatives to traditional
standing undermines any conclusion that Utah litigants are
constitutionally required to meet traditional standing requirements,
and that the Legislature cannot confer standing by statute.
¶101 I do not doubt that imposing standing requirements may
reflect ―[i]mportant jurisprudential considerations.‖ See Terracor, 716
P.2d at 799. But whether our constitution requires traditional
31
LAWS v. GRAYEYES
PEARCE, J., concurring in part and concurring in the judgment
standing, particularly in the face of a statutory grant of standing, is
another matter—one we have not, in my view, yet sufficiently
supported. I continue to worry, as I expressed in In re Gestational
Agreement, ―that we risk equating statements regarding a ‗general
understanding‘ of our judicial power with a rule regarding what
must exist before we can exercise that power.‖ 2019 UT 40, ¶ 58
(Pearce, J., concurring) (citation omitted).
¶102 At some point, we are going to need to wrestle with the
murky origins of our constitutional standing doctrine to sort out
what the Utah Constitution actually requires. When we do, we will
need to confront the fact that we have spoken inconsistently about
standing, sometimes even within the same opinion. For example, in
Gregory v. Shurtleff, we said both ―that ‗the Utah Constitution . . .
mandates certain standing requirements, which emanate from the
principle of separation of powers,‘‖ 2013 UT 18, ¶ 12 n.4, 299 P.3d
1098 (quoting Brown, 2010 UT 14, ¶ 12), and also that ―[s]tanding in
the state courts is a judge-made doctrine.‖ Id. ¶ 16 n.10 (quoting 59
AM. JUR. 2D Parties § 30 (2d ed. 2012)). And in Terracor, we said we
will ―not lightly dispense with the requirement that a litigant have a
personal stake in the outcome of a specific dispute,‖ 716 P.2d at 799,
which implies that we could, in some situations, ―dispense‖ with
that requirement.
¶103 We are not the only supreme court that has needed to
review its jurisprudence to ensure that it has not imposed conditions
that its constitution does not demand. The Michigan Supreme Court
undertook this exercise and concluded that there is ―no support in
either the text of the Michigan Constitution or in Michigan
jurisprudence . . . for recognizing standing as a constitutional
requirement or for adopting the federal standing doctrine.‖ Lansing
Schs. Educ. Ass’n v. Lansing Bd. of Educ., 792 N.W.2d 686, 693 (Mich.
2010).64
¶104 Lansing is instructive. The Lansing court concluded that its
state‘s constitution did not require adoption of the federal standing
doctrine because the Michigan constitution lacked any reference to
―cases‖ and ―controversies.‖ The court reasoned that unlike the
Michigan Constitution, ―the federal constitution enumerates the
cases and controversies to which the judicial power extends, and the
_____________________________________________________________
64 We recognized in Shurtleff that ―[t]he same is true of Utah‘s
constitution and jurisprudence.‖ 2013 UT 18, ¶ 17 (discussing
Lansing Schs. Educ. Ass’n, 792 N.W.2d at 693).
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federal standing doctrine is largely derived from this Article III case-
or-controversy requirement.‖ Id. at 694 (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992) (―[T]he core component of standing
is an essential and unchanging part of the case-or-controversy
requirement of Article III.‖)). The court concluded ―there is no
textual basis in the Michigan Constitution for concluding that
standing is constitutionally required.‖ Id. at 693.
¶105 The Michigan high court also analyzed the different roles
and powers of state and federal courts. The court explained that state
―courts‘ judicial power to decide controversies was broader than the
United States Supreme Court‘s interpretation of the Article III case-
or-controversy limits on the federal judicial power because a state
sovereign possesses inherent powers that the federal government
does not.‖ Id. at 694–95. ―Whereas federal courts only have the
powers enumerated in the United States Constitution, the states
retain powers not ceded to the federal government.‖ Id. at 694 (citing
U.S. CONST. amend. X). Therefore, ―strictly interpreting the judicial
power of [state] courts to be identical to the federal court‘s judicial
power does not reflect the broader power held by state courts.‖ Id. at
694.
¶106 The Lansing court also acknowledged that the Michigan
Constitution references ―judicial power.‖ Id. at 696. But the court
concluded that phrase ―does not inherently incorporate the federal
case-or-controversy requirement, and, in fact, importing this
requirement is inconsistent with this Court‘s historical view of its
own powers and the scope of the standing doctrine.‖ Id. The court
also noted it was not alone in its conclusion, citing many other states
that have rejected strict adoption of federal standing doctrine. Id. at
694 n.11.65
¶107 Even though the Michigan court rejected the notion that
Michigan‘s Constitution required adoption of standing requirements
similar to federal requirements, the court recognized certain
standing requirements as a prudential matter. See id. at 699 (―We
hold that Michigan standing jurisprudence should be restored to a
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65 For example, the Michigan court cited Lebron v. Gottlieb Mem’l
Hosp., 930 N.E.2d 895, 917 n.4 (Ill. 2010), which observed that,
because the Illinois Constitution lacks an analog to the federal cases
and controversies requirement, Illinois courts are ―not required to
follow federal law on issues of standing, and ha[ve] expressly
rejected federal principles of standing.‖
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PEARCE, J., concurring in part and concurring in the judgment
limited, prudential doctrine that is consistent with Michigan‘s long-
standing historical approach to standing.‖).
¶108 Other states, such as Wisconsin, have also taken that
approach. See Foley-Ciccantelli v. Bishop’s Grove Condo. Ass’n, 797
N.W.2d 789, 799 n.18 (Wisc. 2011) (―Wisconsin courts evaluate
standing as a matter of judicial policy rather than as a jurisdictional
prerequisite.‖); State ex rel. First Nat’l Bank of Wis. Rapids v. M & I
Peoples Bank of Coloma, 290 N.W.2d 321, 325 n.5 (Wis. 1980)
(explaining that the doctrine of standing in Wisconsin ―has generally
been applied as a matter of ‗sound judicial policy‘‖ rather than a
―jurisdictional prerequisite‖ because, unlike the federal
constitution‘s limitations on federal courts‘ jurisdiction to ―cases and
controversies,‖ the Wisconsin Constitution granted state courts
jurisdiction ―in all matters civil and criminal‖ (citations omitted)).66
_____________________________________________________________
66 Many other states have come to similar conclusions, rejecting
traditional standing as a constitutional requirement but still
imposing some requirements as a prudential matter. For example,
Arizona has recognized that ―the question of standing in Arizona is
not a constitutional mandate since [that state] ha[s] no counterpart to
the ‗case or controversy‘ requirement of the federal constitution.‖
Fernandez v. Takata Seat Belts, Inc., 108 P.3d 917, 919 (Ariz. 2005)
(citation omitted). And, while Arizona ordinarily requires, as matter
of ―prudential or judicial restraint,‖ that a plaintiff ―allege a distinct
and palpable injury,‖ Arizona courts recognize an exception for
―cases involving issues of great public importance that are likely to
recur.‖ Id. (citations omitted).
Alaska also subscribes to the notion that ―[s]tanding in our state
courts is not a constitutional doctrine; rather, it is a rule of judicial
self-restraint,‖ and it allows for ―citizen-taxpayer standing‖ as well
as ―interest-injury‖ standing. Ruckle v. Anchorage Sch. Dist., 85 P.3d
1030, 1034 (Alaska 2004) (alteration in original) (citation omitted); see
also Friends of Willow Lake, Inc. v. State, Dep’t of Transp. & Pub.
Facilities, Div. of Aviation & Airports, 280 P.3d 542, 546 (Alaska 2012)
(same, and also recognizing ―third-party standing to raise the rights
of a third person‖).
The Oregon Supreme Court has similarly held that because of the
―text, historical context, and case law‖ interpreting the Oregon
Constitution, which lacks a ―cases‖ or ―controversies‖ provision,
―there is no basis for concluding that the court lacks judicial power
to hear public actions or cases that involve matters of public interest
that might otherwise have been considered nonjusticiable under
(Continued)
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¶109 The logic that Michigan, Wisconsin, and other states have
employed, as well as the similarity of those state constitutions to
ours, merits further exploration before we continue to transplant
federal standing requirements into Utah jurisprudence and call them
a constitutional imperative.
¶110 Even if we are tempted to conclude that the framers of the
Utah Constitution somehow incorporated federal standards when
they eschewed the language that gives rise to those standards, we
may need to take a long and hard look at the history of federal
standing jurisprudence before we automatically copy every
interpretation the U.S. Supreme Court gives to the federal case and
controversy requirement. For example, Justice Thomas called into
question whether the history and origins of the U.S. Constitution
truly support the U.S. Supreme Court‘s interpretation that an ―injury
in law,‖ or an injury created by statute, is insufficient alone to confer
standing. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2218–19
(2021) (Thomas, J., dissenting). Justice Thomas explained that ―it was
not until 1970—‗180 years after the ratification of Article III‘—that
this Court even introduced the ‗injury in fact‘ (as opposed to injury
in law) concept of standing.‖ Id. at 2219 (citation omitted). And, he
continued, that ―concept then was not even about constitutional
standing; it concerned a statutory cause of action under the
Administrative Procedure Act,‖ and ―[t]he Court later took this
statutory requirement and began to graft it onto its constitutional
standing analysis.‖ Id.
¶111 Justice Thomas also opined,
In light of this history, tradition, and common practice,
our test should be clear: So long as a ―statute fixes a
minimum of recovery . . ., there would seem to be no
doubt of the right of one who establishes a technical
ground of action to recover this minimum sum without
any specific showing of loss.‖ While the Court today
prior case law,‖ nor does the state constitution ―require dismissal in
public actions or cases involving matters of public interest‖ when a
case is moot. Couey v. Atkins, 355 P.3d 866, 898–901 (Or. 2015) (en
banc), affirming with clarification Kellas v. Dep’t of Corrections, 145 P.3d
139, 143 (Or. 2006).
While it is beyond the scope of this opinion to conduct a full-scale
review of all fifty states‘ standing jurisprudence, it is clear that many
states share my skepticism of blindly applying federal standing rules
to state courts.
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PEARCE, J., concurring in part and concurring in the judgment
discusses the supposed failure to show ―injury in fact,‖
courts for centuries held that injury in law to a private
right was enough to create a case or controversy.
Id. (alteration in original) (footnote omitted) (citation omitted).67
¶112 While we are in no position to answer this question in this
case, it is clear that there is work to be done before we can be
confident pronouncing what the Utah Constitution requires of those
who seek redress from the judicial branch. And that is especially true
where the Legislature confers standing on a potential plaintiff.
II. UTAH ALREADY RECOGNIZES PUBLIC INTEREST
STANDING AS AN ALTERNATIVE TO TRADITIONAL
STANDING
¶113 Another reason why I may be skeptical of a conclusion that
the Legislature cannot constitutionally grant standing springs from
our continued recognition of public interest standing as an
alternative to ―traditional criteria‖ for standing. See Gregory v.
Shurtleff, 2013 UT 18, ¶¶ 13–15, 299 P.3d 1098. And if this court can
grant standing to a plaintiff who cannot demonstrate a
particularized injury, I do not see the basis for denying the
Legislature the same ability.
¶114 The majority asserts that a plaintiff must demonstrate a
―particularized injury‖ different from other ―member[s] of the public
at large.‖ See supra ¶¶ 28, 31 (citations omitted). But it is difficult to
square that assertion with our repeated recognition that ―[w]hile it is
‗the usual rule that one must be personally adversely affected before
_____________________________________________________________
67 Associate Chief Justice Lee‘s concurrence avers that Justice
Thomas‘s arguments were focused on allowing standing where there
has been a violation of a statutorily created ―private‖ right. See supra
¶ 71 n.62. That observation misses my point. I draw attention to
Justice Thomas‘s opinion in TransUnion not to support Utah‘s public
interest standing doctrine but to argue that, before this court
determines to mimic the federal standing doctrine in yet another
context, we must grapple with the fact that the federal standing
doctrine has been a moving target over time, particularly the injury-
in-fact requirement. Even if Justice Thomas has a narrower view of
standing than what the Utah Constitution embodies, his opinion
supports the idea that a legislative body may statutorily create an
injury that gives rise to standing. It also outlines why historical
notions of federal judicial power and the role of the courts support
that idea.
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he has standing to prosecute an action . . . . it is also true this Court
may grant standing where matters of great public interest and
societal impact are concerned.‘‖ Gregory, 2013 UT 18, ¶ 12 (second
alteration in original) (quoting Jenkins v. State, 585 P.2d 442, 443
(Utah 1978)).
¶115 Even the Anderson treatise—which this court relied upon
when commenting that standing is a constitutional requirement in
declaratory judgment cases, see supra ¶¶ 89–94—recognizes that ―in
cases wherein the question involved is of great public interest[,]
[t]hen the rule requiring the existence of a justiciable controversy is
not followed, or is relaxed.‖ ANDERSON (1940), supra ¶ 89, § 9, at 43;
see also supra ¶ 108 & n.66 (discussing other states that recognize
alternatives to traditional standing). In light of this authority, it is
difficult to understand why the Legislature could not, in an
appropriate circumstance, create statutory standing.
III. SEPARATION OF POWERS AND STATUTORY STANDING
¶116 Finally, even if we assume that the Utah Constitution
―mandates certain standing requirements, which emanate from the
principle of separation of powers,‖ supra ¶ 33 (quoting Brown v. Div.
of Water Rts. of Dep’t of Nat. Res., 2010 UT 14, ¶ 12, 228 P.3d 747), I
question the contention that separation of powers principles would
bar the Legislature from statutorily granting standing, see supra ¶ 37.
¶117 As an initial matter, our cases that use separation of powers
concerns to justify the imposition of traditional standing
requirements have never considered a plaintiff with statutory
standing. And the separation of powers considerations we have
relied on to support the notion that a plaintiff must have traditional
standing have less force when the Legislature grants that plaintiff
standing.
¶118 For example, in Jenkins v. Swan, we expressed concern that
―the airing of generalized grievances and the vindication of public
rights are properly addressed to the legislature, a forum where
freewheeling debate on broad issues of public policy is in order.‖ 675
P.2d 1145, 1149–50 (Utah 1983). We also repeated the concerns we
had expressed in Baird v. State, that ―[t]o grant standing to a litigant,
who cannot distinguish himself from all citizens, would be a
significant inroad on the representative form of government, and
cast the courts in the role of supervising the coordinate branches of
government.‖ Id. at 1150 (quoting Baird v. State, 574 P.2d 713, 717
(Utah 1978)). And we cautioned that ―[a]n overstepping of
appropriate restraints on judicial review‖ risked causing ―head-on
confrontations between the [judiciary] and representative branches
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PEARCE, J., concurring in part and concurring in the judgment
of government‖ that ―will not, in the long run, be beneficial to
either.‖ Id. (quoting United States v. Richardson, 418 U.S. 166, 188
(1974) (Powell, J., concurring)).
¶119 Although I tend to wonder whether we were a smidge
hyperbolic when we made those pronouncements, even those
hyperboles lose whatever potency they might have when the
Legislature authorizes the plaintiff to seek judicial review. It is
difficult to conjure the risk of ―head-on confrontations‖ between the
Legislature and the judiciary when, for example, the Legislature
empowers the court to review a complaint a voter brings about the
conduct of an election. It is likewise difficult to see how reviewing a
claim about that election dispute is more ―properly addressed to the
legislature,‖ to allow ―freewheeling debate‖ on ―public policy.‖ See
id.¶120 Indeed, the Michigan Supreme Court has suggested that
―adopting [traditional] standing as a constitutional doctrine
potentially may even violate the separation of powers doctrine‖
under its state constitution, particularly where a statute confers
standing upon a litigant. Lansing Schs. Educ. Ass’n v. Lansing Bd. of
Educ., 792 N.W.2d 686, 694 n.9 (Mich. 2010) (emphasis added)
(citation omitted); see also Nat’l Wildlife Fed’n v. Cleveland Cliffs Iron
Co., 684 N.W.2d 800, 835–36 (Weaver, J., concurring in result)
(arguing that application of a ―judicial standing test‖ to persons with
―legislatively conferred‖ standing ―improperly enlarges the court‘s
power at the expense of the Legislature‘s power, ironically violating
the very ‗constitutional architecture‘‖ of separation of powers
(citation omitted)).68
_____________________________________________________________
68 It is also worth noting that the separation of powers clause in
the Michigan Constitution bears similarities with Utah‘s. Compare
MICH. CONST. art. 3, § 2 (―The powers of government are divided
into three branches: legislative, executive and judicial. No person
exercising powers of one branch shall exercise powers properly
belonging to another branch except as expressly provided in this
constitution.‖), with UTAH CONST. art. V, § 1 (―The powers of the
government of the State of Utah shall be divided into three distinct
departments, the Legislative, the Executive, and the Judicial; and no
person charged with the exercise of powers properly belonging to
one of these departments, shall exercise any functions appertaining
to either of the others, except in the cases herein expressly directed
or permitted.‖).
(Continued)
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Cite as: 2021 UT 59PEARCE, J., concurring in part and concurring in the judgment
¶121 Another reason I question the assumption that ―the
principle of separation of powers‖ might forbid the Legislature from
granting standing is that the cases that could be used to support that
assumption suffer from a fundamental problem: they do not
undertake a serious analysis of the Utah Constitution‘s express
separation of powers clause. They instead rely on ideas drawn from
federal cases and a treatise focusing on declaratory judgments and
federal law. See supra ¶¶ 85–94.
¶122 Although I will keep an open mind until we are presented
with a case with focused briefing, I presently see nothing in the text
of the Utah Constitution‘s separation of powers article that would
prevent the Legislature from granting standing to a plaintiff who
cannot meet the test for traditional standing. Article V, section 1 of
the Utah Constitution states that ―no person charged with the
exercise of powers properly belonging to [the Legislative, Executive,
or Judicial] departments, shall exercise any functions appertaining to
either of the others, except in the cases herein expressly directed or
permitted.‖
¶123 We have interpreted issues implicating article V, section 1 of
the Utah Constitution as requiring a ―relatively straightforward
three-step inquiry‖:
First, are the [state actors] in question ―charged with
the exercise of powers properly belonging to‖ one of
the three branches of government? Second, is the
function that the statute has given . . . one
―appertaining to‖ another branch of government? The
third and final step in the analysis asks: if the answer to
both of the above questions is ―yes,‖ does the
constitution ―expressly‖ direct or permit exercise of the
otherwise forbidden function? If not, article V, section 1
is transgressed.
In re Young, 1999 UT 6, ¶ 8, 976 P.2d 581.
¶124 We have also recognized that there are some ―powers and
functions which may, in appearance, have characteristics of an
inherent function of one branch but which may be permissibly
exercised by another branch.‖ Id. ¶ 14. And we have held that ―when
the power exercised or the function performed is one that we
determine is not exclusive to a branch, it is not ‗appertaining to‘ that
branch and does not fall within the reach of the second clause of
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LAWS v. GRAYEYES
PEARCE, J., concurring in part and concurring in the judgment
article V, section 1.‖ Id. (emphasis added); see also id. (referencing the
terms ―primary,‖ ―core,‖ or ―essential,‖ in addition to ―exclusive,‖ in
defining ―appertaining to‖ (citations omitted)).
¶125 Moreover, we have recognized that, where a task or power
may be properly exercised by more than one branch, the Legislature
may, in some circumstances, direct the assignment of those tasks. See
Taylor v. Lee, 226 P.2d 531, 536–38 (Utah 1951) (concluding that ―the
Legislature could grant to the Governor the right to remove for cause
even though it might involve the exercise of some power usually
considered judicial‖); Citizens’ Club v. Welling, 27 P.2d 23, 25 (Utah
1933) (accepting the argument that ―while the courts have
undoubted power to revoke and annul charters granted to
corporations on grounds, among others, of an illegal or wrongful
exercise or use of such charters, yet it also is competent for the
Legislature to provide for a legislative or administrative forfeiture of
the charter as well as for a judicial one‖).
¶126 Therefore, if we wanted to answer the question of whether
separation of powers principles prevent this court from hearing the
claim of a ―registered voter‖ that an election violates one or more
statutory grounds—where the statute expressly allows any
―registered voter‖ to bring such a claim—we would need to put that
question through In Re Young framework. See supra ¶ 35 (quoting
UTAH CODE § 20A-4-403(1)(a)). We would first ask whether hearing a
complaint brought by a person the Legislature authorized to file suit
would cause the judiciary to exercise a power properly belonging to
another branch of government. See In re Young, 1999 UT 6, ¶ 14. We
would then ask whether the exercise of that power requires us to
perform a function that appertains to or is exclusive to one of the
other branches. See id. And, were we to find that such function is
exclusively performed by the legislative branch, we would ask
whether the Utah Constitution expressly allows the judicial branch
to also exercise that function. See id. ¶ 8.
¶127 While I do not advocate resolving this question without the
benefit of briefing, I currently find it difficult to imagine a successful
argument that the legislative branch alone can examine whether a
municipality has complied with the elections code in the absence of a
plaintiff with a particularized injury. And I cannot presently see how
we could reach the conclusion that we somehow perform a function
that belongs to the legislative branch if we were to respect a statute
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that authorizes a citizen without a particularized injury to bring that
challenge.69
CONCLUSION
¶128 To be certain, I am not offering a definitive opinion on the
question of our constitution‘s requirements on standing. We have
not had sufficient briefing on these questions and, therefore, they
should remain to be answered in another matter. I simply register
my concerns about statements we have made about the
constitutional underpinnings of a traditional standing requirement
under the Utah Constitution and how they might relate to the
Legislature‘s ability to grant standing.
_____________________________________________________________
69 Associate Chief Justice Lee raises an additional idea. He argues
that historical understandings of ―judicial power‖ are narrow and
conflict with Utah‘s doctrine of public interest standing, as well as
with the Legislature‘s ability to statutorily grant standing to a
broader range of plaintiffs than would a traditional standing
doctrine. See supra ¶¶ 70–71. In In Re Gestational Agreement, I
highlighted my concerns with the cases that have purported to offer
conclusive statements on what the Utah Constitution talks about
when it talks about judicial power. See 2019 UT 40, ¶¶ 88–94, 449
P.3d 69 (Pearce, J., concurring). I will not rehearse here what I said
there. But I will emphasize one point from my concurrence that this
case has reaffirmed: I continue to believe that ―there is work to be
done before we can be so definitive about the meaning of our
constitution.‖ Id. ¶ 93.
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