How to Challenge a Utah Statute as Unconstitutional

A statute stands between your client and the result the law should otherwise give. Maybe it caps what a lawyer may agree to charge in one category of cases. Maybe it wipes out a recorded property interest because a renewal notice was signed the wrong way. Either way, the question is the same: how do you get a court to say the statute cannot be enforced?

There are two routes. You can go on offense, with a declaratory judgment action against the State. Or you can raise the question on defense, inside the case where the statute is being used against you. The routes share doctrine. They do not share procedure, and the procedure is where most challenges are won or lost.

1. On offense: a declaratory judgment action against the State

The vehicle is Utah’s Declaratory Judgment Act, Utah Code § 78B-6-401 and following sections. The defendants are the State and the officials charged with enforcing and defending its laws, sued in their official capacities. The relief is a declaration that the statute is invalid, facially or as applied, and an injunction against its enforcement.

Then comes the first fight. It is almost never about the Constitution.

2. Standing decides whether you ever reach the merits

Utah recognizes three paths. Traditional standing requires a particularized injury to the plaintiff itself (see Cedar Mountain Environmental, Inc. v. Tooele County). Third-party standing lets a litigant assert someone else’s rights in limited circumstances. Public-interest standing is available when the issue is of great public importance and the plaintiff is an appropriate party to raise it (Gregory v. Shurtleff).

Consider a recent example. In a challenge to Utah’s statutory cap on contingency fees in medical malpractice cases, a law firm sued for a declaration that the cap was unconstitutional. The trial court never reached the question. It dismissed for lack of standing, concluding that the firm was asserting its clients’ rights rather than an injury to itself; that the firm had not alleged its clients were unable to bring the constitutional challenge themselves; and that malpractice plaintiffs, who could bring such a challenge, were the appropriate parties for public-interest purposes.

The lesson is not that such a challenge cannot be brought. It is that the complaint must prove the plaintiff’s own stake on its face.

A dismissal for lack of standing is reviewed for correctness (Pinder v. Duchesne County Sheriff), and a pure question of constitutional law is reviewed de novo (Injured Workers Ass’n of Utah v. State). But an appellate court still has to be persuaded that the plaintiff belongs in court before it will decide anything else.

3. On defense: raising the question in a pending case

Sometimes the statute arrives as a ruling against you. The procedure is different, and it starts with notice. Under Utah R. Civ. P. 24(d), a party challenging the constitutionality of a statute in an action where the Attorney General has not appeared must notify the Attorney General. The Attorney General may then file a notice of intent to respond and participate in any hearing on the question, and the Declaratory Judgment Act separately entitles the Attorney General to be heard when a statute is alleged to be invalid (Utah Code § 78B-6-403(3)).

Serve the notice when you file the motion. Certify that you did. Then ask the court not to finally resolve the constitutional question until the Attorney General has had the chance to respond, while deciding any non-constitutional grounds right away.

If the adverse ruling is interlocutory, Utah R. Civ. P. 54(b) is the tool. An order that resolves fewer than all claims as to all parties may be revised at any time before final judgment.

4. Lead with the statute, not the Constitution

Utah courts decide cases on statutory grounds when they can, and reach constitutional questions only when they must (Utah Department of Transportation v. Carlson). That rule is an opening, not an obstacle. A statute that is ambiguous must be read, if fairly possible, to avoid not only unconstitutionality but grave constitutional doubt (Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council).

So build the saving construction first. Read the challenged provision together with related sections so that neither destroys the other, and let the specific provision control the general one (State v. Stewart; Latham v. Office of Recovery Services). Check whether the legislature made the provision retroactive; in Utah, a provision is not retroactive unless it is expressly declared to be (Utah Code § 68-3-3). Show that the harsher reading produces absurd results the legislature could not have intended. Then present the constitutional arguments in the alternative.

This ordering does real work. It gives the court a narrow way to rule for you. And it frames the constitutional problem as the cost of the other side’s reading.

5. The doctrines that do the work

Separation of powers. Article V, Section 1 of the Utah Constitution forbids one branch from exercising another’s functions, and Article VIII, Section 4 directs that the Utah Supreme Court, by rule, govern the practice of law. In Injured Workers Ass’n of Utah v. State, the Court held that regulating attorney fees falls within the power to govern the practice of law and struck down a statute delegating the regulation of attorney fees in workers’ compensation cases to an administrative agency. Statutes that reach into areas the Constitution assigns to the courts are vulnerable on this ground alone.

Uniform operation of laws. Article I, Section 24 is Utah’s counterpart to equal protection. The analysis asks whether the statute creates a classification, whether it treats similarly situated people differently, and whether the classification is reasonable and actually furthers a legitimate legislative purpose (Malan v. Lewis; Count My Vote, Inc. v. Cox). A statute that singles out one group for a burden that the stated purpose would apply to everyone is the classic target.

Open courts. Article I, Section 11 guarantees a remedy by due course of law and protects the right to prosecute a civil cause by oneself or through counsel. Under Berry v. Beech Aircraft Corp., the legislature may not arbitrarily take away a remedy that protects basic individual rights.

Due process and vested rights. Utah’s due process guarantee limits legislation that retroactively divests rights lawfully acquired under prior law (Mitchell v. Roberts). A state may condition a property interest on a recording or notice requirement, but only if owners get a reasonable opportunity to comply (Texaco, Inc. v. Short). A condition no one can satisfy is not that.

Contract clause. Both constitutions forbid laws impairing the obligation of contracts (U.S. Const. art. I, § 10; Utah Const. art. I, § 18). The threshold question is whether the law substantially impairs a contractual relationship (Energy Reserves Group, Inc. v. Kansas Power & Light Co.), and the more severe the impairment, the higher the bar the State must clear (Allied Structural Steel Co. v. Spannaus). Notice statutes usually survive because a party can protect itself with minimal effort (Sveen v. Melin). When compliance requires what the party cannot do on its own, that rationale falls away.

Takings. A statute or ruling that destroys a discrete property interest implicates the Takings Clauses (U.S. Const. amend. V; Utah Const. art. I, § 22) under the Penn Central factors, and the Supreme Court has held that abrogating even one strand of the property bundle can be a taking (Hodel v. Irving). Even where compensation is not sought, the takings problem is a strong reason for a court to prefer the saving construction.

6. Facial or as-applied?

A facial challenge says the statute is invalid in every application. It produces the broadest relief and draws the heaviest skepticism. An as-applied challenge says the statute cannot constitutionally be enforced on these facts. Plead both where the facts allow, with the as-applied claim in the alternative. Some doctrines are naturally facial: a separation-of-powers defect does not depend on who is before the court. Others, like the opportunity-to-comply problem with a notice statute, are strongest on concrete facts.