Patterson v. State

2021 UT 52

IN THE

SUPREME COURT OF THE STATE OF UTAH

SCOTT KIRBY PATTERSON,
Appellant,
v.
STATE OF UTAH,
Appellee.

No. 20180108
Heard February 19, 2019
Reheard March 9, 2020
Filed August 26, 2021

On Direct Appeal

Second District, Farmington
The Honorable Thomas L. Kay
No. 160701113

Attorneys:
Kathryn N. Nester, Scott K. Wilson, Benjamin C. McMurray,
Nathan K. Phelps, Salt Lake City, for appellant
Sean D. Reyes, Att‘y Gen., Daniel W. Boyer, Erin Riley,
Aaron Murphy, Shane D. Smith, Asst. Solics. Gen., Salt Lake City,
for appellee

JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and
JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in part
and concurring in the judgment.

JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 A jury convicted Scott Patterson of, among other things,
aggravated sexual abuse of a child. The court of appeals affirmed
that conviction. This court denied Patterson‘s petition for certiorari.
More than three years after that denial, Patterson petitioned the
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Opinion of the Court
district court for post-conviction relief from his criminal conviction
and sentence. He petitioned pursuant to the Post-Conviction
Remedies Act (PCRA), UTAH CODE §§ 78B-9-101–503, and the district
court‘s ―authority under the Constitution.‖
¶2 The State of Utah moved for summary judgment, arguing
that Patterson had petitioned outside the time period the PCRA
permits. See UTAH CODE § 78B-9-107. The State also argued that
because the PCRA wholly regulates this court‘s authority to issue
extraordinary writs that challenge a conviction, the PCRA‘s time-bar
foreclosed any other avenue Patterson claimed the court could
utilize to give him the relief he sought. The district court granted the
State‘s motion.
¶3 Patterson appeals. Patterson posits that the PCRA‘s time
limitations should be tolled. Alternatively, he argues that he can
invoke the court‘s constitutional writ power outside the PCRA. And
he claims that, to the extent the PCRA is interpreted to constrain this
court from exercising its constitutional writ authority, the PCRA is
unconstitutional.
¶4 We affirm the district court‘s determination that the PCRA
time-bars Patterson‘s petition. We agree with Patterson that the
people of Utah gave the courts the power to issue writs. We also
conclude that while the Legislature—and we—can regulate the
procedures we use with respect to writs, neither the Legislature—
nor we—can do so in a fashion that violates a petitioner‘s
constitutional rights. But we further conclude that Patterson has not
demonstrated that application of the time-bar contained in the
PCRA, that this court has incorporated into Utah Rule of Civil
Procedure 65C, to Patterson‘s petition violates his rights under the
Utah Constitution.
¶5 We therefore affirm the district court with respect to most of
the claims Patterson raises. We note, however, that the district court
did not address Patterson‘s arguments that the PCRA‘s time bar did
not apply to the two claims he argues are based on newly discovered
evidence. We remand, without comment on the merit of those
arguments, to permit the district court to address them.
BACKGROUND
¶6 In 2010, a jury convicted Scott Kirby Patterson of two counts
of aggravated sexual abuse of a child and two counts of lewdness
involving a child. The court of appeals addressed the underlying
facts of that case in its opinion upholding Patterson‘s conviction.
State v. Patterson, 2013 UT App 11, 294 P.3d 662. If imitation is the

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sincerest form of flattery, the court of appeals should blush because
we shamelessly lift our recitation of the pertinent facts from that
opinion:
Patterson‘s convictions arose out of a ten-month
period beginning in February 2008, during which he
abused his step-daughter (Child), while married to
Child‘s mother (Mother). Child disclosed the abuse to
Mother on the first night that it happened. Mother
confronted Patterson in front of Child that night, and
he denied the allegations. . . .
Shortly after Christmas that year, Mother
confronted Patterson again after realizing that both
Child‘s and Patterson‘s behavior had changed over the
last few months and that the changes had started after
Child accused Patterson of abuse in February. On
December 27, 2008, Patterson admitted to Mother that
he had molested Child twice. Mother immediately
planned to move out of the house and filed for divorce
on December 29, and in the process she called an
ecclesiastical leader from her church (Bishop) to
explain the situation and ask for his help. On February
9, 2009, Patterson was charged with two counts of
aggravated sexual abuse of a child and two counts of
lewdness involving a child.
Patterson also reached out to Bishop for help,
meeting him at his office several months after Mother
moved out. Patterson later described his meeting with
Bishop as ―confidential clergy-penitent
communication‖ that involved ―discussions about
confession in the church.‖ Nonetheless, after Patterson
was charged, he offered Bishop‘s name as a character
reference to the medical professional (Doctor) retained
by his trial counsel to prepare a psychosexual
evaluation of Patterson; the evaluation was to be used
in plea negotiations and, if necessary, during
sentencing. The psychosexual evaluation contains
Bishop‘s statement to Doctor that Patterson ―told [him]
how sorry he was for what he has done.‖ Because of
this statement in the psychosexual evaluation, the
State, during a recess in the middle of the trial and
before Patterson had testified, indicated to Patterson‘s
trial counsel that the State would use Patterson‘s
communication with Bishop to impeach Patterson‘s
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Opinion of the Court
testimony denying the abuse. Patterson decided to
heed his trial counsel‘s advice and not testify, even
though both he and his trial counsel later testified that
they were prepared for him to take the stand.
At trial, the defense posed the theory that Child‘s
allegations were fabricated and used as leverage by a
―very vindictive‖ Mother during her and Patterson‘s
divorce. Throughout the trial, testimony was elicited
from both Mother and Child that suggested Patterson
was an angry person, who could be frightening at
times. Mother‘s testimony also described some of the
details of their divorce and indicated that Patterson got
most of the assets because she did not ―want to deal
with him anymore.‖ Defense counsel used these
comments to support the theory that Child is a liar and
that Mother convinced Child to fabricate the charges
out of bitterness and to gain leverage in the divorce.
One of the detectives (Detective) present during
Child‘s interview at the Children‘s Justice Center (CJC)
also testified at trial. Detective‘s testimony addressed
the consistency between Child‘s trial testimony and her
CJC interview.
Id. ¶¶ 2–5 (second alteration in original) (footnotes omitted).
¶7 A jury convicted Patterson on all four counts. The district
court sentenced him to consecutive terms of fifteen years to life for
the felony convictions. After conviction, Patterson obtained new
counsel, including Edwin Wall, and appealed the convictions. In
January of 2013, the court of appeals affirmed Patterson‘s conviction.
Id. ¶ 1. Patterson then petitioned this court for a writ of certiorari,
which we denied.
¶8 In May 2013, six days after this court denied Patterson‘s
petition for certiorari, Wall wrote a letter to Patterson to explain his
options in the wake of the denial of certiorari. In the letter, Wall
advised Patterson that ―to challenge the state criminal conviction,
[Patterson] may file a federal petition for writ of habeas corpus . . . or
[he] may pursue post-conviction relief through Rule 65C of the Utah
Rules of Civil Procedure, or both.‖ Wall stated, ―In order to give you
an idea as to what might be done . . . . I will discuss both the
proceedings for federal habeas and those for state post-conviction
relief so that you may consider how you wish to proceed.‖
¶9 Wall then explained the federal habeas process. Wall
detailed,

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The federal court cannot grant relief on habeas corpus
claims unless [the] Utah Supreme Court has first had
an opportunity to rule on the same federal claims. This
is called exhaustion of state court remedies. . . . The
Supreme Court explained the exhaustion requirement
in O’Sullivan v. Boerckel. . . . You have now exhausted
your state court remedies.
¶10 Wall further explained that the PCRA ―sets forth the manner
and extent to which a person may challenge the legality of a criminal
conviction and sentence after the conviction and sentence have been
affirmed in a direct appeal . . . .‖ He then advised Patterson that the
PCRA requires that a petitioner file within one year after the cause of
action accrued. Wall elaborated, ―This means[,] Scott[,] [you] must
file your petition within one year of May 16, 2013, or it will be
barred.‖ Wall explained how post-conviction proceedings work and
confessed that he was not sure what Patterson‘s PCRA claims would
be. He then concluded by stating, ―Regardless of how you decide to
take your next step, I adamantly urge you to seek relief at the very
least through a federal habeas petition.‖
¶11 In August of 2014, Patterson filed a pro se federal habeas
petition in federal district court. That court appointed Patterson
counsel on October 22, 2015, and the Office of the Federal Public
Defender (federal attorneys) entered an appearance for Patterson on
November 2, 2015. On October 28, 2016, more than three years after
Patterson‘s direct appeal ended, Patterson filed a state petition for
post-conviction relief. Patterson then filed this amended petition on
November 2, 2016.
¶12 In his amended petition, Patterson seeks ―postconviction
relief from his conviction and sentence pursuant to the
Postconviction Remedies Act (Utah Code Ann. § 78B-9-101 et seq.)
and [the] court‘s authority under the Utah Constitution.‖ Patterson‘s
petition includes a section entitled ―Grounds For Relief,‖ which, in
its entirety, outlines the elements of a claim for ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668 (1984).
¶13 Patterson then lists twelve grounds for relief detailing the
facts relevant to each ground and the prejudice he alleges flows from
each alleged error. In other words, he attempts to set forth the facts

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Opinion of the Court
to support a claim of ineffective assistance of counsel under
Strickland.1
¶14 Patterson acknowledges that he filed his petition more than
three years after the denial of certiorari, but he offers three reasons
why his petition is nonetheless timely. First, Patterson notes that
under the PCRA, the time to file ―is tolled for any period during
which the petitioner was prevented from filing a petition due to state
action in violation of the United States Constitution.‖ (Quoting UTAH
CODE § 78B-9-107(3).) Patterson avers that Wall provided
constitutionally deficient assistance of counsel when he advised
Patterson that he had exhausted his state court remedies. This
deficient performance, Patterson argues, should be imputed to the
State and thus toll the time period for filing his state post-conviction
petition.
¶15 Second, Patterson claims that his petition is timely because it
was filed within one year of his discovery of new evidence. The
PCRA states that a petition must be brought within one year after
the cause of action accrues. UTAH CODE § 78B-9-107(1). One possible
_____________________________________________________________
1 These twelve grounds are: (1) ―Mr. Patterson received
ineffective assistance of counsel when his trial attorneys failed to
protect statements made to and by [Bishop]‖; (2) ―Mr. Patterson
received ineffective assistance of appellate counsel in how Mr. Wall
handled claims related to the psychosexual evaluation‖; (3) ―[The
trial prosecutor] committed prosecutorial misconduct and violated
Due Process when he threatened to call [Bishop] even though he
knew he could not do so‖; (4) ―Counsel was ineffective for failing to
offer expert evidence of faulty interviewing techniques or evidence
of fabrication‖; (5) ―Counsel was ineffective for failing to investigate
and locate readily available impeachment evidence‖; (6) ―Trial
counsel failed to object to inadmissible testimony by [Child and
Mother], and appellate counsel failed to rebut inference from
strategy‖; (7) ―Counsel unreasonably allowed improper bolstering
testimony without objection or rebuttal‖; (8) ―Trial counsel
unreasonably failed to object to the prosecutor‘s comments on the
burden of proof and Mr. Patterson‘s right to remain silent‖;
(9) ―Counsel performed deficiently in failing to obtain the results of a
polygraph that would have required the prosecutor to dismiss the
charges‖; (10) ―Mr. Patterson‘s decision to reject the plea offer was
the result of ineffective assistance of counsel‖; (11) ―Trial counsel
was ineffective at sentencing‖; and (12) ―The harm from these errors
was cumulative.‖

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accrual date is ―the date on which petitioner knew or should have
known, in the exercise of reasonable diligence, of evidentiary facts
on which the petition is based.‖ Id. § 78B-9-107(2)(e). Patterson
argues that he did not know that a state post-conviction relief
petition was a viable option because Wall ―affirmatively misled
him.‖ Patterson only had reason to know that it was an option, he
argues, once the federal attorneys were appointed. Thus, claims
Patterson, the earliest he ―could have had knowledge attributed to
him was when he was finally appointed counsel.‖ Because this
petition was filed within a year of the day his current counsel
entered an appearance on his behalf, Patterson argues the petition is
timely.
¶16 Third, Patterson advances that the statute of limitation can
be equitably tolled. He avers it would be unjust to apply the PCRA‘s
general statute of limitation to his petition because he has been
endeavoring to have his conviction reviewed but dodgy legal advice
slowed him down.
¶17 Alternatively, Patterson argues that even if the PCRA bars
his claims and equitable tolling is unavailable, this court could still
hear his petition under its ―residual constitutional authority.‖ For
this proposition, Patterson points to two opinions from this court
where we indicated that we might, in an appropriate case, recognize
an egregious injustice exception to the PCRA‘s procedural bars. See
Gardner v. State, 2010 UT 46, ¶¶ 93–95, 234 P.3d 1115; Winward v.
State, 2012 UT 85, ¶¶ 13–28, 293 P.3d 259.
¶18 The district court, as Utah Rule of Civil Procedure 65C
requires, reviewed Patterson‘s petition to determine if ―any claim
has been adjudicated in a prior proceeding, or if any claim in the
petition appears frivolous on its face.‖ UTAH R. CIV. P. 65C(h)(1). The
court summarily dismissed two of the twelve claims—grounds for
relief 6 and 7—because they had been adjudicated in a prior
proceeding. The district court required a response from the State on
the remaining claims.
¶19 The State filed a motion for summary judgment, arguing
that Patterson‘s petition is time-barred.2 The State responded to each
of Patterson‘s arguments.

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2 At the same time it filed its motion for summary judgment, the
State filed a motion to stay its full merits response to the petition
(continued . . .)
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Opinion of the Court
¶20 First, the State tackled Patterson‘s argument that Wall‘s
alleged ineffective assistance could be imputed to the State and
therefore toll the statute of limitation. The State argued that Wall‘s
actions cannot be imputed to it. It further contended that Wall‘s
advice was, in fact, sound. The State argued that even if the district
court considered Wall‘s representation to be ineffective, Patterson
was complaining about advice Wall had given after the appeal
ended. According to the State, Patterson had no right to state-
provided counsel at that point, so he could not raise an ineffective
assistance claim.
¶21 Second, the State rebuffed Patterson‘s attempt to argue that
his petition was timely because it was filed within one year of his
current counsel‘s appointment. The State noted that Patterson‘s
claim that Wall had misled him had nothing to do with the
―evidentiary facts on which the petition is based.‖ Therefore, the fact
that Patterson learned from his new counsel that he could file a state
post-conviction petition does not trigger a later accrual date. The
State also countered Patterson‘s assertion that he could not have
known about the claims before his new counsel was appointed. The
State argued that the fact that ―Patterson‘s current counsel has
thought of new claims to raise . . . does not excuse Patterson from the
time bar. Patterson knew, or at the very least should have known, of
all the facts forming the bases of his current claims as early as his
direct appeal. . . . Legal research and later-developed knowledge
concerning these facts ‗do not constitute evidentiary facts on which
the petition is based.‘‖ (Quoting Collum v. State, 2015 UT App 229,
¶ 7, 360 P.3d 13.)
¶22 Third, in response to Patterson‘s equitable tolling argument,
the State averred that equitable tolling is not available under the
PCRA. And, even if it were, Patterson had pled nothing that would
entitle him to equitable tolling.
¶23 Finally, in response to Patterson‘s alternative argument, the
State argued that the district court did not have the power to apply
any ―egregious injustice‖ exception to the PCRA.
¶24 In his response to the summary judgment motion, Patterson
reiterated the arguments for timeliness he made in his petition and
added that applying the statute of limitation to his petition would

pending the court‘s ruling on its motion for summary judgment. The
district court granted this stay.

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violate the Open Courts Clause of the Utah Constitution3 and the
Suspension Clauses of the Utah and United States Constitutions.4
¶25 The district court granted the motion for summary
judgment and dismissed the petition. The district court rejected
Patterson‘s statutory tolling argument. The court found nothing ―to
support the idea that ‗the state deprived [Petitioner] of his right to
access the courts,‘‖ or that Wall‘s alleged ineffective assistance of
counsel could be imputed to the State. (Alteration in original.) The
court also found that even if there were an egregious injustice
exception, Patterson‘s claim would not merit its application, and that
the statute of limitation was constitutional.
¶26 The district court did not address Patterson‘s argument that
at least two of his claims for relief were based on newly discovered
evidence. Patterson appeals. After we heard arguments in this case,
we requested supplemental briefing from the parties on Patterson‘s
constitutional claims.

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3The Utah Open Courts Clause states,
All courts shall be open, and every person, for an
injury done to the person in his or her person,
property, or reputation, shall have remedy by due
course of law, which shall be administered without
denial or unnecessary delay; and no person shall be
barred from prosecuting or defending before any
tribunal in this State, with or without counsel, any civil
cause to which the person is a party.
UTAH CONST. art. I, § 11.
We note that Utah voters approved a constitutional amendment
which took effect in January 2021, that replaced gendered language
with gender-neutral or gender-equal language. Because this
amendment has no impact on the substance of our analysis, we cite
and quote the current version of the constitution, even though the
language differs slightly from the language the constitution used
when Patterson filed his petition.
4 The Utah Suspension Clause states, ―The privilege of the writ of
habeas corpus shall not be suspended, unless, in case of rebellion or
invasion, the public safety requires it.‖ UTAH CONST. art. I, § 5. The
Suspension Clause of the federal constitution states, ―The Privilege
of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.‖ U.S.
CONST. art. I, § 9(2).

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STANDARD OF REVIEW
¶27 We review a district court‘s grant of summary judgment for
correctness. Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600. ―A district
court should grant summary judgment only when, viewing all facts
and reasonable inferences therefrom in the light most favorable to
the nonmoving party, there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of
law.‖ Morra v. Grand Cnty., 2010 UT 21, ¶ 12, 230 P.3d 1022
(alteration in original) (citations omitted) (internal quotation marks
omitted).
¶28 For the types of claims Patterson raises under the PCRA,
―the petitioner has the burden of pleading and proving by a
preponderance of the evidence the facts necessary to entitle the
petitioner to relief.‖ UTAH CODE § 78B-9-105(1)(a). And once the
respondent has pled a time bar to the claims ―the petitioner has the
burden to disprove its existence by a preponderance of the
evidence.‖ Id. § 78B-9-105(2).
¶29 Finally, ―[a] summary judgment movant, on an issue where
the nonmoving party will bear the burden of proof at trial, may
satisfy its burden on summary judgment by showing . . . that there is
no genuine issue of material fact. Upon such a showing, whether or
not supported by additional affirmative factual evidence, the burden
then shifts to the nonmoving party, who may not rest upon the mere
allegations or denials of the pleadings, but must set forth specific
facts showing that there is a genuine issue for trial.‖ Orvis, 2008 UT
2, ¶ 18 (citations omitted) (internal quotation marks omitted).
¶30 Therefore, we must determine, viewing all facts and
reasonable inferences in the light most favorable to Patterson,
whether there exists a genuine issue of material fact regarding
whether Patterson‘s claims are time-barred. Patterson bears the
burden to set forth specific facts showing that there is a genuine
issue for trial.
¶31 With respect to Patterson‘s constitutional claims, ―[t]he
interpretation and constitutionality of a statute are questions of law
that we review for correctness.‖ Waite v. Utah Lab. Comm’n, 2017 UT
86, ¶ 5, 416 P.3d 635.
ANALYSIS
¶32 Patterson argues that all of his claims can be heard, even
those that the PCRA would consider untimely, because the PCRA‘s
time limitations should be either statutorily or equitably tolled.
Alternatively, Patterson argues that the courts can hear his petition

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because the courts possess constitutional writ authority separate
from the PCRA and that the PCRA is unconstitutional if it purports
to limit the courts‘ ability to hear the claims he raises. Patterson also
argues two of the claims he raises are timely under the PCRA.
¶33 We reject Patterson‘s arguments that his claims are tolled
under the PCRA. But we agree that the courts of this state have
constitutional writ authority independent of the PCRA. We clarify
the interaction between the PCRA and this writ authority, as it
pertains to Patterson‘s argument that we should recognize an
egregious injustice exception to the procedural time bars. We reject
Patterson‘s arguments that the time bars found in the PCRA and
Utah Rule of Civil Procedure 65C are unconstitutional. Finally, we
conclude that the district court should have addressed two of
Patterson‘s claims that he argues are based on new evidence and
thus timely under the PCRA.5 And we remand to permit the district
court to address that argument.
I. THE MAJORITY OF PATTERSON‘S CLAIMS
ARE TIME-BARRED
¶34 The PCRA requires that a petitioner bring her claims within
one year after her cause of action accrues. UTAH CODE § 78B-9-
107(1).6 This means that the PCRA required Patterson to bring his

_____________________________________________________________
5 The State also argues that a number of Patterson‘s grounds for
relief are additionally barred under the PCRA because those grounds
had been raised in a previous proceeding. The district court did not
rule on this issue because it found those claims were time-barred.
Because we affirm the district court‘s ruling that these claims are
untimely, we do not address the State‘s alternative argument.
6 Section 107 provides:
(1) A petitioner is entitled to relief only if the petition is
filed within one year after the day on which the cause
of action has accrued.
(2) For purposes of this section, the cause of action
accrues on the later of the following dates:
(a) the last day for filing an appeal from the entry of
the final judgment of conviction, if no appeal is
taken;
(b) the entry of the decision of the appellate court
that has jurisdiction over the case, if an appeal is
taken;
(continued . . .)
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(c) the last day for filing a petition for writ of
certiorari in the Utah Supreme Court or the United
States Supreme Court, if no petition for writ of
certiorari is filed;
(d) the entry of the denial of the petition for writ of
certiorari or the entry of the decision on the petition
for certiorari review, if a petition for writ of
certiorari is filed;
(e) the date on which petitioner knew or should
have known, in the exercise of reasonable diligence,
of evidentiary facts on which the petition is based;
or
(f) the date on which the new rule described in
Subsection 78B-9-104(1)(f) is established.
(3)(a) The limitations period is tolled for any period
during which the petitioner was prevented from filing
a petition due to state action in violation of the United
States Constitution, due to physical or mental
incapacity, or for claims arising under Subsection 78B-
9-104(1)(g), due to force, fraud, or coercion as defined
in Section 76-5-308.
(b) The petitioner has the burden of proving by a
preponderance of the evidence that the petitioner is
entitled to relief under this Subsection (3).
(4) The statute of limitations is tolled during the
pendency of the outcome of a petition asserting:
(a) exoneration through DNA testing under Section
78B-9-303; or
(b) factual innocence under Section 78B-9-402.
(5) Sections 77-19-8, 78B-2-104, and 78B-2-111 do not
extend the limitations period established in this
section.
(6) This section does not apply to a petition filed under
Part 3, Postconviction Testing of DNA, or Part 4,
Postconviction Determination of Factual Innocence.
UTAH CODE § 78B-9-107(1)–(5). We note that, after Patterson filed his
petition in 2016, the PCRA has been amended multiple times,
including in 2017, see H.B. 274, § 9, 2017 Utah Laws 2604, 2608–09,
and in 2021, see H.B. 100, 64th Utah Leg., Gen. Sess. (2021). We quote
and cite the current statute because the amendments do not impact
the substance of our analysis.

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PCRA claims within one year after the time period expired for him
to petition the United States Supreme Court for certiorari. See id.
§ 78B-9-107(2)(c). He failed to do so. And, by its express terms, the
PCRA bars his petition from advancing to consideration on the
merits.
¶35 However, Patterson claims that this statute of limitation is
tolled for his petition. He argues that either the statutory tolling
provision from the PCRA applies or that this court can equitably toll
the statute of limitations. We disagree on both counts.
A. Patterson’s Claims Are Not Tolled Under the PCRA
¶36 The PCRA allows the limitations period to be ―tolled for any
period during which the petitioner was prevented from filing a
petition due to state action in violation of the United States
Constitution.‖ Id. § 78B-9-107(3)(a). Once the State pleads the statute
of limitation as a bar to the claims, ―the petitioner has the burden to
disprove its existence by a preponderance of the evidence.‖ Id. § 78B-
9-105(2). To meet his burden, Patterson points to two alleged
constitutional violations that he argues would trigger the PCRA‘s
tolling provision.
1. Appellate Counsel‘s Advice
¶37 Patterson first argues that his appellate counsel provided
constitutionally ineffective assistance which prevented him from
filing a timely petition. This claim fails because a reasonable trier of
fact could not conclude, based upon the facts Patterson used to
support his petition, that Wall provided ineffective assistance of
counsel.
¶38 Claims of ineffective assistance of counsel are governed by
the oft-repeated standard the United States Supreme Court laid out
in Strickland v. Washington, 466 U.S. 668 (1984). To establish a
violation of his constitutional right to effective assistance of counsel,
Patterson would have to ―show (1) ‗that counsel‘s performance was
deficient‘ and (2) that ‗the deficient performance prejudiced the
defense.‘‖ State v. Gallegos, 2020 UT 19, ¶ 33, 463 P.3d 641 (citation
omitted). This requires a defendant to demonstrate ―that counsel‘s
representation fell below an objective standard of reasonableness,‖
Strickland, 466 U.S. at 688, against the backdrop of a ―strong
presumption that counsel‘s conduct falls within the wide range of
reasonable professional assistance,‖ id. at 689.
¶39 To support his assertion that Wall provided constitutionally
deficient assistance, Patterson alleges that Wall met with Patterson in
person shortly after this court denied his petition for certiorari.

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Patterson states that Wall ―told me this would be the end of the state
case and the next step, if I wished to pursue it, was to file a writ of
habeas petition in federal court.‖ Patterson also avers that he does
not remember Wall mentioning the possibility of filing anything in
state court. And Patterson asserts that ―Wall had told me the next
step after the Utah Supreme Court denied certiorari was to file a
federal . . . petition.‖
¶40 But after the meeting Patterson describes, Wall sent
Patterson a letter. In that letter, Wall advised Patterson that he had
two options: he could file in federal court or file a post-conviction
petition in state court. Wall‘s letter told Patterson a state
post-conviction relief petition would ―have to be based on matters
that have not already been litigated,‖ and ―I do not know what
claims could be made.‖
¶41 Wall‘s letter then outlined the filing deadlines and
requirements of each process. He explained that the issue for the
federal petition would be ―the deprivation of your right to testify in
your own defense,‖ and that he recommended pursuing federal
habeas relief. Wall explained that before a federal court can grant
relief, the issue must be raised with the state court. He continued,
―This is called exhaustion of state remedies. The Supreme Court
explained the exhaustion requirement in O’Sullivan v. Boerckel . . . .
You have now exhausted your state court remedies.‖
¶42 When it came to a state court petition, Wall‘s letter
explained the procedural and substantive requirements and advised
that claims that had been previously raised would be dismissed.
Wall advised that ―those issues that have been addressed in the
appeals we have taken would likely be summarily dismissed‖ if
raised again in state court. But Wall also told Patterson that if there
were issues that had not been raised on appeal, he might be able to
press them in a PCRA petition.
¶43 Wall concluded the letter by telling Patterson, ―You will
need to decide how you wish to proceed. . . . Regardless of how you
decide to take your next step, I adamantly urge you to seek relief at
the very least through a federal habeas petition.‖ (Emphasis added.)
¶44 This advice did not fall below an objective standard of
reasonableness. Wall correctly told Patterson that the issues he had
raised in the Utah courts could be raised in federal court, could not be
raised in state court because they had been previously adjudicated,
and that it was therefore a good idea to at least pursue his case in
federal court. Wall also correctly advised Patterson any claim he
wanted to raise in state court would have to be a claim that he had

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Opinion of the Court
not raised during the initial appeal. Wall admitted that he was not
sure what those claims might be.
¶45 Patterson focuses in on several discrete parts of the letter to
argue that Wall offered deficient advice. First, Patterson quotes the
letter where Wall said, ―I recommend you pursue federal habeas
relief in your case,‖ and ―You have now exhausted your state court
remedies.‖ Second, Patterson alleges Wall incorrectly explained
when and what could be raised in a federal petition. Finally,
Patterson faults Wall for telling Patterson that he had ―no right to
counsel,‖ on a habeas petition, when United States Supreme Court
precedent requires that either legal materials or persons trained in
the law be available to assist habeas petitioners make ―a meaningful
initial presentation to the trial court.‖ (Citing Bounds v. Smith, 430
U.S. 827, 828 (1977).)
¶46 As to Patterson‘s first contention, Wall advised Patterson to
pursue federal relief in the context of explaining the federal petition.
Thus, Wall‘s recommendation to pursue federal habeas relief was
just that, a recommendation based on the information available to
Wall. Wall never advised Patterson in the letter that he should forego
relief in state court. Similarly, Wall‘s statement that Patterson had
exhausted his state court remedy was made in the context of
informing Patterson that the federal court required Patterson to
exhaust his state court claim before it could be raised federally. And
Wall made clear that he was only talking about one issue: Patterson‘s
right to testify in his own defense, which had been appealed and
exhausted at the state level.
¶47 Patterson‘s second and third points are likewise unavailing.
They both focus on Wall‘s allegedly deficient advice about when and
what to argue in federal court. But these allegations, even if they
could be shown to constitute objectively unreasonable
representation, would not support a claim that Patterson suffered
the prejudice Patterson would need to demonstrate to succeed under
Strickland. This advice all spoke to his federal petition and did not
prejudice his ability to raise his claims in state court.
¶48 In sum, nothing about Wall‘s advice would objectively
suggest to Patterson that he would be prohibited from raising new
claims in state court. To the contrary, Wall told Patterson that he
could bring a petition in state court if they had not been previously
raised. Wall repeatedly told Patterson he would have to decide what
to do next: file in either state or federal court or both. And that he
should ―at least‖ pursue his arguments in federal court. Wall
correctly told Patterson that any claims raised in state court would

15
 PATTERSON v. STATE
Opinion of the Court
have to be new and that he did not know what those claims would
be. Even giving Patterson the benefit of the inferences to which he is
entitled on summary judgment, a reasonable trier of fact could not
conclude that Wall provided Patterson with objectively unreasonable
advice that prevented him from timely filing a PCRA petition.7
2. Access to the Courts
¶49 Patterson also claims that he was prevented from filing his
petition because the State failed to provide him access to the courts
while he was imprisoned. According to Patterson, because he is
incarcerated, ―mere access is an empty right unless prisoners are
provided with adequate legal resources so they can prepare
‗meaningful legal papers.‘‖ (Citing Bounds, 430 U.S. at 828.)
¶50 In Lewis v. Casey, the United States Supreme Court discussed
the right to access the courts. 518 U.S. 343, 350–55 (1996). The Court
stated that there is not ―an abstract, freestanding right to a law
library or legal assistance.‖ Id. at 351. The Court also opined that
―prison law libraries and legal assistance programs are not ends in
themselves, but only the means for ensuring a reasonably adequate
opportunity to present claimed violations of fundamental
constitutional rights to the courts.‖ Id. (citation omitted) (internal
quotation marks omitted).
¶51 To establish a violation of the right to access the courts, an
inmate must ―demonstrate that the alleged shortcomings in the
library or legal assistance program hindered his efforts to pursue a
legal claim.‖ Id. In the course of reaching that conclusion, the
Supreme Court specifically rejected the argument that the ―State
must enable the prisoner to discover grievances, and to litigate
effectively once in court.‖ Id. at 354. If this were required, it would
―effectively . . . demand permanent provision of counsel, which we
do not believe the Constitution requires.‖ Id.
¶52 Patterson argues that he was deprived of his right to access
the courts because he ―was unaware of the existence of [attorneys
contracted with the Department of Correction to assist inmates]
when he was first imprisoned.‖ And ―[w]hen he found out about

_____________________________________________________________
7 The district court dismissed Patterson‘s petition on a different
basis, but ―[w]e may affirm a grant of summary judgment upon any
grounds apparent in the record.‖ Jensen ex rel. Jensen v. Cunningham,
2011 UT 17, ¶ 36, 250 P.3d 465. We elect to address the representation
Wall provided Patterson as the basis to affirm.

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Opinion of the Court
their existence and sought out their help, their responses were
always dilatory, and the assistance they provided was deficient.
Rather than help Mr. Patterson identify claims and prepare filings,
the contract counsel instead simply provided him forms and directed
him to file pro se.‖
¶53 In response to the first contention that he was unaware of
the prison‘s contract counsel, the district court found that Patterson
had not cited any authority ―to suggest that the state has an
affirmative duty to make prisoners aware of the contract attorneys.‖
The district court also noted that if other inmates were aware of the
contract attorneys, ―it seems to follow that Petitioner should have
known of them as well if he was diligently attempting to file another
challenge to his conviction.‖
¶54 The State argues that the district court correctly noted that
―none of the authorities guaranteeing prisoners right of access to the
courts obliges contract attorneys to offer their services to inmates
who have not sought them out.‖ The State avers that ―Patterson
provided no evidence that the State prison actually prevented him
from meeting the PCRA‘s filing deadline.‖
¶55 We agree. Even if we accept Patterson‘s assertion that he
was unaware of the contract attorneys, Patterson does not forward
any evidence that he sought them out or that the State hindered his
ability to discover them. Patterson claims that the district court failed
to indulge all reasonable inferences in his favor, but it would be an
unreasonable inference to infer from the facts Patterson alleged that
the State had hindered him from taking advantage of the legal
resources the prison provides.8
¶56 As noted, Patterson also argues that the assistance the
contract attorneys provided once he talked to them was deficient and
improperly prohibited him from filing his petition in a timely
manner. However, as the State notes, Patterson did not seek
assistance from the contract attorneys until March 2015. This was
_____________________________________________________________
8 Nothing we say should be interpreted as an endorsement of the
state of affairs at the Utah State Prison with respect to the provision
of legal services to inmates. We do not know enough about the
situation to offer an opinion, but we recognize that it was Patterson‘s
burden to forward facts to allow the district court to conclude that
there was a genuine issue of material fact with respect to the State‘s
efforts—or lack of efforts—to meet its obligation. We conclude only
that Patterson failed to meet his burden.

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 PATTERSON v. STATE
Opinion of the Court
well after the statute of limitations on his PCRA claims ran. Thus any
claim based on what the contract attorneys did or did not do could
not have prevented Patterson from timely filing his petition—it was
already untimely.
¶57 Because we are not convinced that there is a genuine issue
of material fact regarding whether State action hindered Patterson
from timely filing this petition, we affirm the district court order
finding that Patterson was not entitled to statutory tolling.
B. Patterson’s Claims Are Not Equitably Tolled
¶58 Patterson next argues that this court should apply equitable
tolling principles and toll the PCRA‘s statute of limitation for the
period he lacked counsel. Patterson avers that,
[u]nder the circumstances in his case, it would be
unjust to blindly apply the statute of limitations
without reason. Mr. Patterson diligently sought further
review of his case. He filed a timely petition in federal
court because he had been told that his state remedies
had been exhausted and he should proceed next to
federal court. . . . Had he known he needed to file first
in state court, he would have done so.
We are not convinced that equitable tolling, if even applicable to
PCRA claims, could be appropriately applied to Patterson‘s claims.
¶59 We have stated that ―[t]he doctrine of equitable tolling
should not be used simply to rescue litigants who have inexcusably
and unreasonably slept on their rights, but rather to prevent the
expiration of claims to litigants who, through no fault of their own,
have been unable to assert their rights within the limitations period.
Under our traditional principles of equitable tolling, the party
seeking equitable tolling must first show that he was indeed disabled
. . . from protecting his claim.‖ Garza v. Burnett, 2013 UT 66, ¶ 11, 321
P.3d 1104 (alterations in original) (citations omitted) (internal
quotation marks omitted).
¶60 Patterson relies, in part, on Sevy v. Security Title Co. of
Southern Utah, 902 P.2d 629 (Utah 1995). In Sevy, this court held that a
statute of limitations could be tolled in ―exceptional circumstances
where the application of the general rule would be ‗irrational or
unjust.‘‖ Id. at 636 (citation omitted). Patterson points to similar
language from the United States Supreme Court: ―[A] petitioner is
entitled to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.‖ Holland

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Opinion of the Court
v. Florida, 560 U.S. 631, 649 (2010) (citation omitted) (internal
quotation marks omitted). In a similar vein, Patterson cites Martinez
v. Ryan, 566 U.S. 1 (2012), for the proposition that equitable tolling
might apply when attorney error results in a procedural default.
¶61 As to Patterson‘s first point, applying the statute of
limitation to Patterson here would not be ―irrational‖ or ―unjust.‖
Patterson has not introduced facts that demonstrate that some
extraordinary circumstance prevented him from timely filing. As
discussed above, Wall‘s advice did not prevent Patterson from filing
a petition. See supra ¶¶ 37–48. In contrast, in Holland, the attorney
conduct that excused the late filing included the attorney failing to
file the petition despite the client repeatedly asking him to do so, not
informing the client that his state cases had been decided, and failing
to communicate with the client ―over a period of years, despite
various pleas from [the client] that [the attorney] respond to his
letters.‖ 560 U.S. at 652. The facts of the case here fail to compare to
the ―unjust‖ and ―extraordinary circumstances‖ in cases like Holland.
¶62 Patterson also relies on Martinez, 566 U.S. 1. In that case, the
United States Supreme Court held that a court hearing a federal
habeas petition can excuse a procedural default caused by ineffective
assistance of state post-conviction counsel in a narrow set of
circumstances. Id. at 9. Martinez involved a state, Arizona, where
claims of ineffective assistance of trial counsel could only be brought
by a petition for post-conviction relief. Id. at 4. The Martinez court
reasoned that where post-conviction is the first opportunity a person
will have to raise claims of ineffective trial counsel, a federal habeas
court may hear those claims where the defendant‘s ability to raise
them in a post-conviction petition has been lost by the ineffective
assistance of counsel. Id. at 13–14.
¶63 This case is not Martinez. Utah allows claims for ineffective
assistance of trial counsel on direct appeal. Patterson had a venue to
raise his ineffective-trial-counsel claims and enjoyed the right of
counsel to help him press those claims. Therefore, the policy
concerns that animated the Martinez court are not implicated here.
¶64 Finally, we disagree that in this case the timely filing of a
federal habeas petition should toll the state statute of limitation.
Patterson was told that he had to file his state petition within the
statute of limitation and that it would have to be based on new
claims. It is not ―irrational‖ or ―unjust‖ to apply the statute of
limitation where Patterson received accurate advice about his path
forward.

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 PATTERSON v. STATE
Opinion of the Court
¶65 Because no tolling provision applies, Patterson‘s claims
(except possibly for two we discuss later in this opinion) are
untimely under the PCRA. As such, the district court did not err
when it granted the State‘s summary judgment motion.9
II. THE COURTS‘ CONSTITUTIONAL AUTHORITY TO
ISSUE POST-CONVICTION EXTRAORDINARY WRITS
¶66 Patterson argues that even if the PCRA bars his claims, a
court can hear them pursuant to the writ power the Utah
Constitution grants the courts. According to Patterson, the district
court and this court possess constitutional authority to issue
post-conviction extraordinary writs that is independent of a
statutory scheme like the PCRA. Patterson recognizes that the PCRA
states that it is ―the sole remedy‖ for post-conviction relief, UTAH
CODE § 78B-9-102(1)(a), and so he asserts that the PCRA is
unconstitutional if it purports to replace or regulate this court‘s writ
authority.
¶67 Patterson also avers that the courts could hear his petition
by applying an ―egregious injustice‖ exception to the procedural
bars. In cases like Gardner v. State, 2010 UT 46, 234 P.3d 1115, and
Winward v. State, 2012 UT 85, 293 P.3d 259, we left open the
possibility that we might have the ability to hear a time-barred case
if an egregious injustice would result if we did not.
¶68 The State asks us to repudiate the things we said in Gardner
and Winward and close the door once and for all on any type of
extra-statutory exception to the PCRA. In the State‘s view, the PCRA
represents a completely legitimate exercise of legislative authority to
wholly regulate the writ power the Utah Constitution grants the
Utah judiciary.
¶69 We asked for supplemental briefing on these questions. And
we appreciate the excellent research and analysis the parties
provided in response. We commend Patterson and the State for the
_____________________________________________________________
9 In addition to seeking relief under the PCRA, Patterson also
seeks relief under the court‘s ―authority under the Utah
Constitution.‖ As we explain below, this court incorporated the
terms of the PCRA into Utah Rule of Civil Procedure 65C. See infra
¶¶ 174, 182 & n.41. Rule 65C sets forth the manner in which we have
decided to exercise our constitutional writ authority. See infra ¶ 183 &
n.42. Consequently, if Patterson‘s petition is untimely under the
PCRA, it is also barred by rule 65C.

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Opinion of the Court
thoughtful arguments they advanced on a complicated set of issues.
We especially appreciate the manner in which they delved into the
historical record to provide information on how the people of Utah
would have understood the writ power at various times in our
history.
¶70 Even though the parties raised constitutional issues in their
initial briefs, and despite the fact that we asked for supplemental
briefing on some of those issues, and then held a second hearing to
discuss those issues, the concurrence invokes principles of
constitutional avoidance to chide us for addressing the questions the
parties asked us to resolve concerning the origin and scope of the
constitutional writ authority. Infra ¶¶ 235–40. But, as the concurrence
in another case noted while chiding this court for failing to reach a
constitutional question, constitutional avoidance is not an iron-clad
rule; it simply gives rise to a presumption that ―is rebuttable in cases
where ‗specific reasons exist for offering broader guidance . . . .‘‖
State v. Walker, 2011 UT 53, ¶ 66, 267 P.3d 210 (Lee, A.C.J.,
concurring) (quoting Gallivan v. Walker, 2002 UT 89, ¶ 97, 54 P.3d
1069 (Durham, C.J., concurring)).
¶71 This matter does not present a classic constitutional
avoidance scenario. This is not like the case the concurrence cites
where we avoided reaching constitutional issues by ruling on non-
constitutional grounds. See infra ¶ 235 (citing State v. Argueta, 2020
UT 41, ¶ 55, 469 P.3d 938).10 Here, Patterson argues that dismissal of
_____________________________________________________________
10 Argueta was a case in which we avoided any constitutional
issue by concluding that even if there were a constitutional violation,
Argueta suffered no prejudice. Argueta, 2020 UT 41, ¶ 18. We did so
in spite of a concurring opinion that urged us to address the question
of whether Argueta‘s Fifth Amendment rights had been violated
because, in part, it was ―an important question.‖ Id. at ¶ 76 (Lee,
A.C.J., concurring in part and concurring in the judgment). In
addressing that concurrence‘s argument that we should answer
Argueta‘s constitutional question, we noted that we had said that we
―have gone so far in the past as to assert that it is ‗our obligation to
avoid addressing constitutional issues unless required to do so.‘‖ Id.
at ¶ 55 (majority) (quoting Gardner, 2010 UT 46, ¶ 93). But we
acknowledged that ―it may be that these prior cases overstated the
principle of constitutional avoidance by speaking broadly in terms of
‗obligation[s]‘ and ‗fundamental rule[s].‘‖ Id. at ¶ 55 n.14 (alterations
in original). And we put off addressing that language for another
day. Id.
(continued . . .)
21
 PATTERSON v. STATE
Opinion of the Court
his petition violates his constitutional rights. This argument is a
backstop to his statutory and common law claims. If we were to find
for Patterson on his statutory or common law arguments, then we
would not need to reach his constitutional claims. But because we
conclude that Patterson‘s statutory and common law arguments fail,
we must examine whether the constitution affords him any
remaining form of redress. And we ultimately hold—even under the
version of the opinion the concurrence envisions—that there is no
egregious injustice exception to the time bars of the PCRA or rule
65C, and that Patterson has not convinced us that those time bars
violate the Utah Constitution‘s Open Courts Clause or Suspension
Clause.
¶72 The concurrence agrees we need to reach those particular
questions and signs off on those conclusions. See infra ¶ 220. As such,
the concurrence does not really advocate for constitutional
avoidance. The concurrence just wants us to avoid the constitutional
questions on which it disagrees with the answers. If we were to
practice constitutional avoidance, we would decide this case the way
we decided Winward, 2012 UT 85. We would decline to opine on
whether the constitution requires us to recognize an egregious
injustice exception to the PCRA because we conclude that Patterson
would not qualify for that exception. Cf. id. ¶ 21. And we would
leave open the question of whether the Utah Constitution either
requires or forbids us from recognizing an exception to the PCRA
until we were presented with a case where we could not avoid the
question by taking a non-constitutional route.11

We need not decide today how best to articulate the
constitutional avoidance standard. However we may phrase it, the
court unanimously agrees that we should address some of the
constitutional questions the parties have placed before us. Thus,
regardless of how we define the burden a party faces to convince us
to take a constitutional path when we have a non-constitutional
option, Patterson and the State have convinced us to reach the
constitutional issues.
11 We decided Winward over the objection of a separate opinion
that chastised the court for failing to order supplemental briefing to
reach the constitutional question. See Winward, 2012 UT 85, ¶ 45 (Lee,
A.C.J., concurring) (―I concede the need for briefing addressed more
explicitly to the question of the constitutional source of our authority
to recognize an exception to the PCRA‘s time-bar provisions. For
(continued . . .)
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Opinion of the Court
¶73 But here ―specific reasons exist for offering broader
guidance‖ and answering the other constitutional questions. Walker,
2011 UT 53, ¶ 66 (Lee, A.C.J., concurring) (citation omitted).
Patterson and the State put the constitutional questions in front of us
and engaged with the original understanding of the constitutional
language. As we stated in our supplemental briefing order, the
parties have asked us to ―definitively state [whether] we have
constitutional authority to issue writs that is broader than the PCRA
allows.‖ At our invitation, the parties dedicated additional time and
resources to the four questions posed in our order and provided us
with excellent briefing on the subject. We put the parties to this
additional work in part because the State made a compelling
argument that our unwillingness to address constitutional questions
made ―arguments over the existence of an ‗egregious injustice‘
exception . . . ubiquitous in the district courts, the court of appeals,
and this [c]ourt.― In other words, we set down this path because the
parties convinced us that the bench and bar needed certainty in this
area of the law. By answering the questions the parties have briefed
and argued, we can explain the framework that will guide the
resolution of future disputes in this area. In contrast, the
constitutional avoidance the concurrence presses would only cause
us to swap one set of unanswered questions for another with no
guidance on how to approach those questions when they arise.
¶74 In essence, the concurrence wants to play Jenga with the
opinion, pulling out a couple of conclusions and hoping that the
tower still stands in the end. But without explaining the source and
scope of the writ power the Utah Constitution authorizes, our
opinion cannot persuasively explain to Patterson that the Utah
Constitution offers him no relief. Nor can we explain to the State
why we do not embrace its assertion that the Legislature has near
unfettered power to regulate the writ.12 If we do not address these

that reason I would have entered an order calling for such briefing in
this case.‖). Even without that briefing, the concurrence ventured
forth to address the constitutionality of the egregious injustice
exception. See id. ¶ 64.
12 The concurrence also asserts that ―[t]his is not the right case for
our court to be opining‖ on the questions we address, infra ¶ 226,
which the concurrence says are not ―directly implicated.‖ Infra ¶ 236.
And it states that the questions are not ripe for adjudication because
all we have is a ―hypothetical application of a provision to a
situation in which the parties might, at some future time, find
(continued . . .)
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 PATTERSON v. STATE
Opinion of the Court
questions, we will just inject new uncertainty into this area of law.
And we will do so in the same opinion we say we are willing to
tackle other constitutional questions—that we could avoid—because
we want to provide certainty. For these reasons, the presumption
against deciding constitutional questions has been overcome.
¶75 To answer the questions the parties have posed about the
relationship between the PCRA and our constitutional writ
authority, we need to understand three things. First, we need to
understand the source of the courts‘ writ power; that is, we need to
know what provisions of the Utah Constitution invest the judiciary
with power over writs. Second, we need to understand the scope of
the writ power the Utah Constitution gives to the judiciary. And
third, we need to understand to what extent the Utah Constitution
permits the Legislature to regulate that writ power.
A. Article VIII of the Utah Constitution Grants Courts
Authority to Issue Habeas Writs
¶76 Patterson and the State agree that the Utah Constitution
provides the judicial branch the power to issue writs that challenge

themselves.‖ Infra ¶ 229 (quoting Metro. Water Dist. v. Sorf, 2019 UT
23, ¶ 10, 445 P.3d 443) (emphasis omitted). This is a novel extension
of what it means for an issue to be unripe.
Patterson wants to know why he cannot present his claim that he
was afforded ineffective assistance of counsel by using the writ
power the Utah Constitution gives the courts. The district court
ruled that the PCRA prevented him from raising that claim. Part of
what Patterson argues is that the Legislature does not have the
power to place substantive restrictions on his constitutional right to
ask this court for a writ. See supra ¶ 66. The State responded to that
argument, arguing that the Legislature could and did do exactly that.
See supra¶ 68. Thus the issue is squarely presented for resolution.
Moreover, it is not a hypothetical application of the law to
Patterson. It is, in the language of the case the concurrence cites, ―an
actual . . . clash of legal rights.‖ Sorf, 2019 UT 23, ¶ 10 (citation
omitted) (emphasis omitted). The only reason that we would not
need to reach that question is if we decide the case on a different
ground. The concurrence‘s view of ripeness would mean that any
time a party presents alternative grounds for affirmance or reversal,
ruling on one of those bases would render the other unripe, such that
we could not address it without finding an exception to the ripeness
doctrine. That is not our law.

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Opinion of the Court
the detention of an individual—such writs have traditionally been
called writs of habeas corpus. But the parties disagree over what part
of the constitution invests the courts with the writ power. And this
fuels their disagreement over the scope of the writ the constitution
guarantees. That is, they disagree over whether post-conviction writs
fall within the court‘s constitutional writ power and whether the
constitution gives the Legislature the ability to limit it.
¶77 Patterson argues that writ authority comes from article
VIII, sections 3 and 5. Section 3 provides that ―[t]he Supreme Court
shall have original jurisdiction to issue all extraordinary writs,‖
UTAH CONST. art. VIII, § 3, and section 5 provides that ―[t]he district
court shall have . . . power to issue all extraordinary writs.‖13 Id. art.
VIII, § 5. The people of Utah enacted this particular language as part
of a new constitutional article in 1984, but the authority to issue
important writs has been in the Utah Constitution since it was first
adopted in 1895. Infra ¶¶ 121–22.

_____________________________________________________________
13 The parties do not dispute that the term ―extraordinary writ‖
encompasses the writ of habeas corpus. Although our constitutional
authority to issue ―extraordinary writs‖ also includes other types of
writs, like writs of mandamus, and the remedies outlined in our Rule
of Civil Procedure 65B, our analysis here applies specifically to those
that would traditionally be covered by the label ―writ of habeas
corpus.‖
We have recognized that references to extraordinary writs
include writs of habeas corpus. By at least 1972, our rules of civil
procedure recognized the writ of habeas corpus as an ―extraordinary
writ.‖ See Crist v. Mapleton City, 497 P.2d 633, 636 (Utah 1972)
(Crocket, J., dissenting) (noting that then rule 65B(a) referred to
―writs in habeas corpus . . . and other extraordinary writs‖). And
prior to 1984, we had recognized this in a host of cases. See Granato v.
Salt Lake Cnty. Grand Jury, 557 P.2d 750, 751 (Utah 1976); Andreason v.
Turner, 493 P.2d 1278, 1279 (Utah 1972); Rees v. Turner, 491 P.2d 1093,
1093 (Utah 1971); Syddall v. Turner, 437 P.2d 194, 195 n.3 (Utah 1968);
Sullivan v. Turner, 448 P.2d 907, 908 (Utah 1968); Bryant v. Turner, 431
P.2d 121, 122 (Utah 1967); Aldridge v. Beckstead, 396 P.2d 870, 870
(Utah 1964); see also Hurst v. Cook, 777 P.2d 1029, 1033 (Utah 1989)
(―[T]here is no doubt that [the term ‗extraordinary writ‘ in article
VIII] also includes the most important of all ancient writs, the writ of
habeas corpus.‖); McMahan v. Hunter, 179 F.2d 661, 662 (10th Cir.
1950).

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Opinion of the Court
¶78 The State avers that it is ―not the Article VIII reference to
this Court‘s power to ‗issue‘ the writ that [does] the work of
protecting or defining‖ the writ authority. The State claims that ―it
was—and still is—the Suspension Clause that limits the legislature‘s
power to suspend the core writ.‖ The Suspension Clause, found in
article I, section 5 of the Utah Constitution, states, ―The privilege of
the writ of habeas corpus shall not be suspended, unless, in case of
rebellion or invasion, the public safety requires it.‖
¶79 We agree with Patterson and the constitution‘s plain
language. The ―power‖ to issue writs described in section 5 and the
―original jurisdiction‖ in section 3 both connote a sphere of authority
to do something.
¶80 Original jurisdiction is a ―court‘s power to hear and decide a
matter before any other court can review the matter.‖ Original
Jurisdiction, BLACK‘S LAW DICTIONARY (11th ed. 2019) (emphasis
added).14 Dictionaries published close in time to the enactment of this
language confirm this meaning.15

_____________________________________________________________
14 This is in contrast to subject matter jurisdiction, which places
boundaries on the exercise of jurisdiction. See Subject-Matter
Jurisdiction, BLACK‘S LAW DICTIONARY (11th ed. 2019) (defining
subject matter jurisdiction as ―[j]urisdiction over the nature of the
case and the type of relief sought; the extent to which a court can
rule on the conduct of persons or the status of things‖).
15As we discuss below, the language of article VIII, sections 3 and
5 entered the constitution in 1984, so we look to language from that
period. See Jurisdiction, WEBSTER‘S NINTH NEW COLLEGIATE
DICTIONARY (1983) (defining jurisdiction as ―1: the power, right or
authority to interpret and apply the law[.] 2: the authority of a
sovereign power to govern or legislate[.] 3: the limits or territory
within which authority may be exercised‖); Jurisdiction, OXFORD
ENGLISH DICTIONARY (2d. ed. 1989) (defining jurisdiction as
―1. Administration of justice; exercise of judicial authority, or of the
functions of a judge or legal tribunal; power of declaring and
administering law or justice; legal authority or power. . . . 2. Power
or authority in general; administration, rule, control. . . . 3. The extent
or range of judicial or administrative power; the territory over which
such power extends. . . . 4. A judicial organization; a judicature; a
court, or series of courts, of justice.‖); Jurisdiction, OXFORD AMERICAN
DICTIONARY (1980) (defining jurisdiction as: ―1. authority to interpret
and apply the law. 2. official power exercised within a particular
(continued . . .)
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¶81 Although the 1984 amendment changed the constitutional
language, the core principle has been present since the people of
Utah originally adopted their constitution. Not long after statehood,
we recognized that the Utah Constitution ―expressly conferred upon
the courts and reserved unto them the power to issue the writs
mentioned in the Constitution.‖ State v. Durand, 104 P. 760, 764 (Utah
1908).
¶82 The State‘s argument—that the writ authority arises from
the Suspension Clause—tracks how federal courts have talked about
the federal habeas power. The State‘s argument is flawed because the
federal constitution does not have an analog to Utah‘s article VIII,
sections 3 and 5. Indeed, the Suspension Clause is the only reference
to the habeas writ authority in the federal constitution.
¶83 Additionally, the federal Suspension Clause does not
expressly grant power to issue, or jurisdiction over, writs to any
federal court.16 Indeed some have argued that the federal Suspension
Clause does not affirmatively provide authority to issue writs, but
merely proscribes suspension if the writ exists. See Paul D. Halliday
& G. Edward White, The Suspension Clause: English Text, Imperial
Contexts, and American Implications, 94 VA. L. REV. 575, 580 (2008)
(―The Suspension Clause does not itself confer jurisdiction on any
court to enforce the ‗privilege of the writ.‘‖); Dep’t of Homeland Sec. v.
Thuraissigiam, 140 S. Ct. 1959, 1969 n.12 (2020) (noting the debate over
―whether the [Suspension] Clause independently guarantees the
availability of the writ or simply restricts the temporary withholding

sphere of activity. 3. the extent or territory over which legal or other
power extends‖); Jurisdiction, AMERICAN HERITAGE DICTIONARY (2d.
college ed. 1982) (defining jurisdiction as ―1. The right and power to
interpret and apply the law. 2 a. Authority or control. b. The extent
of authority or control. 3. The territorial range of authority or
control.‖); Jurisdiction, MERRIAM-WEBSTER DICTIONARY OF SYNONYMS
(1984) (listing the following synonyms for ―jurisdiction‖: ―power,
authority, control, command, sway, dominion‖).
16 The Suspension Clause of the U.S. Constitution provides: ―The
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.‖ U.S. CONST. art. I, § 9(2). Utah‘s Suspension Clause is
nearly identical: ―The privilege of the writ of habeas corpus shall not
be suspended, unless, in case of rebellion or invasion, the public
safety requires it.‖ UTAH CONST. art. I, § 5.

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 PATTERSON v. STATE
Opinion of the Court
of its operation‖). But the United States Supreme Court has
nonetheless found that the federal Suspension Clause ―ensures that
. . . the Judiciary will have . . . the writ,‖ even if not expressly granted
by statute. Boumediene v. Bush, 553 U.S. 723, 745 (2008).
¶84 To be clear, that Utah‘s constitution provides that the
―privilege of the writ of habeas corpus shall not be suspended,‖
UTAH CONST. art. I, § 5, provides further evidence that this writ
authority is constitutionally protected. But the State offers us no
reasoning or authority for why the plain language of article VIII,
sections 3 and 5 does not also, and more firmly, establish the courts‘
power to issue writs.
¶85 Simply stated, the State misplaces its reliance when it bases
its argument on cases interpreting the United States Constitution,
which lacks an express grant of writ authority to the federal
judiciary. The people of Utah expressly granted the writ power to its
judiciary in a way that the federal constitution does not.
B. The Courts of This State Have Constitutional Authority to
Issue Extraordinary Writs for Post-Conviction Relief
¶86 The next issue we need to understand concerns the scope
of our constitutionally granted writ authority. Patterson argues that
the writ authority found in our constitution includes the power to
issue writs related to post-appeal petitions that collaterally attack a
conviction or sentence—for simplicity‘s sake, we will refer to these
types of petitions as post-conviction petitions.
¶87 The State takes a much narrower view of our
constitutional authority. The State avers that the habeas writ the
constitution authorizes does not encompass post-conviction
petitions. The State argues that a post-conviction petition falls
outside the ―constitutional writ.‖ According to the State, ―the
post-conviction process is a creation of state law not mandated by
the constitution [and] states have plenary power to regulate it or do
away with it altogether.‖17 Thus, the State envisions that the writ the

_____________________________________________________________
17 The implications of this argument should not be overlooked.
The PCRA currently contains an exception for newly discovered
evidence, such as new DNA evidence that exonerates a petitioner.
UTAH CODE § 78B-9-107(4)(a). The State takes the position that
because the PCRA is entirely a creature of statute, and the
constitution does not guarantee the ability to mount a
post-conviction challenge, the Legislature could remove that
(continued . . .)
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constitution authorizes allows a person to challenge detention prior
to conviction but not in most post-conviction circumstances.
¶88 The differing views of the writ power spring, in part, from
a disagreement about what the original public meaning of the
constitutional language is, as well as at what point we should
measure that meaning. This question arises because, while the
constitution adopted in 1895 contained language granting writ
authority to the courts, in 1984 the judicial article of the constitution
was repealed and replaced with new language, including the
sections 3 and 5 we have discussed.18
¶89 The State concedes that by 1984, Utah courts heard writ
petitions in post-conviction cases. But it argues that the
constitutional language adopted in 1984 did not change the scope of
writs the Utah Constitution authorized. According to the State, the
expansion of the writ to encompass post-conviction challenges
occurred in the twentieth century. Because that power was, in the
State‘s view, beyond the scope of the original grant of writ power to
the courts, the courts heard these writs pursuant to a common-law,
non-constitutionally based writ authority. The State argues that the
―public meaning‖ we need to understand to interpret the Utah
Constitution is the meaning the people of Utah would have given to
the constitution in 1895.
¶90 Patterson agrees that the understanding of habeas
expanded in our courts after the adoption of our constitution to
include petitions for post-conviction relief. But he argues that the
people of Utah enshrined this broader understanding when they
enacted the new judicial article of the constitution in 1984. Thus,
according to Patterson, we should address the public meaning of the
court‘s writ authority as the people of Utah would have understood
it when they voted on the 1984 constitutional amendment.

exception and leave a prisoner with no avenue to permit a court to
review that newly-discovered DNA evidence.
18 The parties consistently refer to Utah‘s original constitution as
the 1896 constitution, and their arguments refer to the meaning of its
terms in 1896. But the Utah Constitution was drafted and ratified by
the voters in 1895. For simplicity, we will reference 1895 as the
relevant year for thinking about the public meaning of the original
constitution.

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Opinion of the Court
¶91 When interpreting constitutional language, we look to the
―plain language‖ of the text and ―start with the meaning of the text
as understood when it was adopted.‖ S. Salt Lake City v. Maese, 2019
UT 58, ¶¶ 18, 23, 450 P.3d 1092. And ―our focus is on the objective
original public meaning of the text, not the intent of those who wrote
it.‖ Id. ¶ 19 n.6. We have noted that the purpose ―of our
constitutional inquiry is . . . to interpret the Constitution according to
how the words of the document would have been understood by a
competent and reasonable speaker of the language at the time of the
document‘s enactment.‖ Id. (citation omitted) (internal quotation
marks omitted). And ―[a]lthough the text‘s plain language may begin
and end the analysis, . . . constitutional inquiry does not require us to
find a textual ambiguity before we turn to those other sources. Where
doubt exists about the constitution‘s meaning, we can and should
consider all relevant materials.‖ Id. ¶ 23.
¶92 As a matter of logic, when the people of Utah amend the
constitution, we look to the meaning that the public would have
ascribed to the amended language when it entered the constitution.
Other courts agree. See Pestka v. State, 493 S.W.3d 405, 411 (Mo. 2016)
(discussing that in interpreting constitutional amendments, courts
should ―give effect to the intent of the people in adopting the
amendment‖(citation omitted)); Brewer v. Fergus, 79 S.W.3d 831, 834
(Ark. 2002) (discussing that the language of constitutional
amendments should be given its plain meaning at time of adoption);
Calvey v. Daxon, 997 P.2d 164, 170 (Okla. 2000) (stating when courts
interpret constitutional amendments, ―the voters expect the courts to
be familiar with settled rules of constitutional construction and to
follow them‖); Neel v. Shealy, 199 S.E.2d 542, 545 (S.C. 1973)
(discussing the need for the court to determine the intent of the
framers of the constitutional amendment and the intent of the
legislature which approved the amendment); In re Opinion of the
Justices, 85 N.E.2d 761, 763 (Mass. 1949) (detailing that a
constitutional amendment ―should be interpreted in ‗a sense most
obvious to the common understanding at the time of its adoption‘‖
(citation omitted)).
¶93 The language we are asked to interpret entered our
constitution in 1984. So we need to understand what the public
would have understood the writ power to be when it invested its
Supreme Court with ―original jurisdiction to issue all extraordinary
writs‖ and its district courts with ―power to issue all extraordinary
writs.‖ See UTAH CONST. art. VIII, §§ 3, 5.
¶94 To understand the meaning of the constitutional language,
and what the public would have considered the writ power to
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include in 1984, we will give a short summary of the long history of
habeas proceedings to understand the state of affairs at the time
Utah became a state and adopted its constitution. We then address
the changes that occurred between 1895 and 1984. Finally, we
discuss the language of the constitution as it now stands after the
1984 enactment. Against that historical backdrop we can better
discern what the people of Utah would have understood they were
putting in the constitution when they adopted the amended article
VIII.
1. The Early History of Habeas Corpus
¶95 The writ of habeas corpus has tended, over time, to expand
in scope and meaning. At its core, the writ of habeas corpus provides
the mechanism for people to exercise their privilege as the sovereign
power to hold their government answerable to the law. What began
as simply a procedural mechanism to bring a party before the court
became the privilege of the king to ensure his subjects were not
imprisoned by another authority. It then became the privilege of the
subjects to ensure the king did not imprison them without cause.
From there, the writ further evolved to permit people a vehicle to
challenge their imprisonment.19
¶96 Some scholars trace the writ to Roman times. WILLIAM S.
CHURCH, A TREATISE ON THE WRIT OF HABEAS CORPUS § 1, at 2 (2d. ed.
1893) [hereinafter CHURCH TREATISE]. At least by the reign of Edward
Longshanks in thirteenth century England, the writ was ―known and
used in some form.‖ Boumediene, 553 U.S. at 740. In its earliest form,
the writ was ―simply an auxiliary device to assure the presence of a
party before the court.‖ Dallin H. Oaks, The ―Original‖ Writ of Habeas
_____________________________________________________________
19 ―In the long quest to build a cathedral of government under
law, the inevitable failures of fallible humans to act in accord with
our government‘s promise of freedom and liberty periodically
arouses tempests that damage the partially-completed structure. The
invocation of the writ of habeas corpus by those unlawfully detained
is a central tool to the restoration and preservation of the
government under law. Through petitions for writs of habeas
corpus, judges can hear the previously inaudible sighs of prisoners,
and utilize the ‗protean dynamism‘ of the writ to inspect our
government‘s failures and efficaciously repair its freedoms.‖ Eric M.
Freedman, Habeas Corpus in Three Dimensions Dimension I: Habeas
Corpus as a Common Law Writ, 46 HARV. CIV. RTS.-CIV. LIBERTIES L.
REV. 591, 618 (2011) (citation and footnotes omitted).

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Corpus in the Supreme Court, 1962 SUP. CT. REV. 153, 175. By the
seventeenth century, it had evolved to be ―a substantive remedy and
independent means for inquiring into the cause of detention.‖ Id. But
although the writ was used to ―inquire into the authority of a jailer to
hold a prisoner,‖ Boumediene, 553 U.S. at 741, initially it was only
used ―to assist the King in the exercise of his power,‖ id. at 740.
¶97 The writ embodied the prerogative of the king to demand
an account ―for his subject who is restrained of his liberty.‖ Paul D.
Halliday & G. Edward White, The Suspension Clause: English Text,
Imperial Contexts, and American Implications, 94 VA. L. REV. 575, 600
(2008) (citation omitted). It was through the writ that the justices of
the King‘s Bench, exercising the king‘s prerogative, ―supervise[d] the
discretion of judicial and administrative officers of all kinds.‖ Id. at
608. Through the writ, subjects also asserted the king‘s prerogative
―against those whose authority threatened them most: . . . the justices
of the peace and statutory commissioners who lived in their own
communities.‖ Id.
¶98 But by the seventeenth century, the writ was no longer
limited to holding lower authorities to the ultimate authority of the
king. It began to be used to hold the king to the law. ―[G]radually the
writ of habeas corpus became the means by which the promise of
Magna Carta was fulfilled.‖ Boumediene, 553 U.S. at 740.20
Importantly, the writers of the Magna Carta said the writ means
―that the king is and shall be below the law.‖ Id. at 741 (citation
omitted).
¶99 The famous English case known as ―Darnel‘s case,‖ and its
aftermath, illustrate the point. In the 1627 case, five knights,
including Sir Thomas Darnel, had been imprisoned for not
contributing to a loan the king had demanded. CHURCH TREATISE,
supra, § 3b, at 4; Boumediene, 553 U.S. at 741. They petitioned the court
for a writ of habeas corpus. CHURCH TREATISE, supra, § 3b, at 4;
Boumediene, 553 U.S. at 741. The justices of the bench required that a
―return‖ be made, meaning the one imprisoning the men was
required to explain the basis for their imprisonment. See CHURCH
TREATISE, supra, § 3b, at 4. In the return, however, the only reason

_____________________________________________________________
20 The Magna Carta had declared that ―[n]o freeman shall be
seized, or imprisoned, or dispossessed, or outlawed, or in any way
destroyed; nor will we condemn him, nor will we commit him to
prison, excepting by the legal judgment of his peers, or by the laws
of the land.‖ CHURCH TREATISE, supra, § 2, at 3 (citation omitted).

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given for their imprisonment was the ―special command of the king.‖
Id.; see also id. § 5, at 6–7. The men argued to the court that this was
not enough to justify imprisonment, that even the king‘s command
could not excuse imprisoning the knights without a legal basis. Id.
§ 4, at 4-6. The justices held that such a return had been sufficient
justification in the past and remanded the knights back to the king‘s
custody. See id. § 6, at 7–8; Boumediene, 553 U.S. at 741–42.
¶100 ―There was an immediate outcry of protest‖ at this result.
Boumediene, 553 U.S. at 742. In its next meeting, the House of
Commons passed a resolution detailing to the king that century old
laws such as the Magna Carta forbade imprisonment without cause.
Id.; CHURCH TREATISE, supra, § 8, at 8–9. The House of Commons
decried that the king was trampling on writ of habeas corpus when
the court denied release to a person imprisoned only on the king‘s
special command. CHURCH TREATISE, supra, § 8, at 9. The document
then declared that ―no freeman in any such manner as is before
mentioned be imprisoned or detained.‖ Id. Although the King‘s
Bench had denied Darnel‘s arguments, the immediate response from
the House of Commons demonstrated that the people of England
understood the importance of the writ of habeas corpus in ensuring
that even the king should be answerable to the law.
¶101 Over the next half century, the writ continued to expand. A
large shift came in 1671 when the ―constitutionally minded‖ Mathew
Hale became chief justice of the King‘s Bench and, although the king
was opposed to the broader view, habeas became enforced ―as a
right for any subject deprived of his liberty by whatever authority.‖
Helen A. Nutting, The Most Wholesome Law—The Habeas Corpus Act of
1679, 65 AM. HIST. REV. 527, 539 (1960) (emphasis added).
¶102 Parliament codified these expansions, among others, in the
Habeas Corpus Act of 1679. See Halliday & White, supra, at 611. But
these parliamentary decrees generally ―codified practices generated
by King‘s Bench justices.‖ Id. Indeed, even before the 1679 Act, ―the
writ of habeas corpus was fully recognized as available against the
government,‖ CHURCH TREATISE, supra, § 10, at 13, and ―[m]any of the
technical provisions enacted in 1679 were in actual operation by the
middle 1670‘s as a result of reforms within the court itself,‖ Nutting,
supra, at 539. It thus may be a ―misapprehension about the English
history of habeas . . . that ‗the Great Writ‘ was a parliamentary rather
than a judicial gift.‖ Halliday & White, supra, at 611. Legislation was
necessary nevertheless to fully protect what had up until then been
accomplished judicially. Nutting, supra, at 542. Even so, ―in the
century after the passage of the Habeas Corpus Act of 1679, all the
important innovations in habeas corpus jurisprudence‖ still came
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Opinion of the Court
through the courts rather than parliament. Halliday & White, supra,
at 612. ―In the latter years of the eighteenth century, judges, not
Parliament, would expand the writ‘s application to new questions as
they continued to exercise the king‘s prerogative to protect the
subject‘s liberty.‖ Id. at 613.
¶103 At the same time ―the privilege of the writ of habeas
corpus was transmitted into American law principally through
tradition and the common law.‖ Dallin H. Oaks, Habeas Corpus in the
States—1776–1865, 32 U. CHI. L. REV. 243, 247 (1965) [hereinafter
Oaks, Habeas Corpus]. Colonial courts entertained writs of habeas
corpus as early as one hundred years before the United States
Constitution. A.H. Carpenter, Habeas Corpus in the Colonies, 8 AM.
HIST. R. 18, 22 (1902).21
¶104 Colonial legislatures attempted to enshrine habeas
protections in statute. For example, in 1692, the Massachusetts colony
attempted to adopt habeas corpus legislation similar to the 1679 Act.
Carpenter, supra, at 21. The crown disallowed the legislation because
the 1679 Habeas Corpus Act had not yet been extended to the
colonies. Id. But, importantly, the lack of colonial legislation did not
negate the writ‘s existence. We know, for example, that
Massachusetts judge Samuel Sewall issued writs of habeas corpus
even after the colony‘s act was disallowed, ―show[ing] that the writ
did not depend upon any statute law.‖ Id. at 22. There was not
―anything new in the asking for such a writ. . . . [I]t must have been a
_____________________________________________________________
21 And unlike ―rights‖ enshrined in constitutions in America,
habeas corpus was protected as a ―privilege‖ and benefit. Oaks,
Habeas Corpus, supra, at 247; Halliday & White, supra, at 593.
According to some scholars, this designation as a ―privilege‖ came
from an historical understanding of habeas as the royal prerogative,
or privilege, of the sovereign. It was the privilege of the sovereign
and his or her court to demand an accounting of why a subject was
imprisoned. Indeed, habeas arose from ―the royal prerogative and
issued, on motion, at the discretion of the justices sitting in King‘s
Bench.‖ Halliday & White, supra, at 593. Indeed, this origin in the
sovereign ―would give to habeas corpus its distinctive judicial power
to defend‖ the people‘s rights under the law. Id. (emphasis added).
When translated into the new constitutions of this country,
habeas was named the privilege of the new sovereign—the people—
to demand an accounting through their courts for imprisonment.
And liberty would find refuge in the writ ―because habeas corpus
stood on the most solid ground of sovereignty.‖ Id.

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common practice.‖ Id.; see also Eric M. Freedman, Habeas Corpus in
Three Dimensions Dimension I: Habeas Corpus as a Common Law Writ, 46
HARV. CIV. RTS.-CIV. LIBERTIES L. REV. 591, 597–601 (2011) (discussing
New Hampshire and federal habeas corpus cases from the 1700s). In
sum,
the rights of the colonists as regards the writ of habeas
corpus rested upon the common law. . . . The lack of
statute law did not mean that the colonists had no
protection for their personal rights, for the want was
supplied by the common law, and also by the placing
of habeas corpus provisions in their court laws.
Carpenter, supra, at 26.
¶105 In 1787, the United States Constitution declared that ―[t]he
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.‖ U.S. CONST. art. I, § 9(2). The framers of the Constitution
―considered the writ a vital instrument for the protection of
individual liberty,‖ and the separation of powers. Boumediene, 553
U.S. at 743 (―Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to be an
essential mechanism in the separation-of-powers scheme.‖). And as
the United States Supreme Court has noted, ―[i]n a critical exchange
with Patrick Henry at the Virginia ratifying convention[,] Edmund
Randolph referred to the Suspension Clause as an ‗exception‘ to the
‗power given to Congress to regulate courts.‘‖ Id. (citation omitted).
¶106 But even by the time the United States Constitution was
adopted, ―lawmakers in the . . . original thirteen states apparently
had no sense of urgency about enacting habeas corpus legislation.‖
Oaks, Habeas Corpus, supra, at 251. For example, Connecticut did not
have habeas legislation until 1821. Id. North Carolina did not enact
its legislation until 1836. Id. at 252. But both states were nonetheless
hearing and granting writs. See, e.g., Nickols v. Giles, 2 Root 461, 461
(Conn. Super. Ct. 1796) (hearing a petition for writ of habeas corpus
but declining to grant the writ on its merits); Whitmore v. Carr, 3 N.C.
181, 181 (N.C. Super. Ct. 1802) (same). Writing for the United States
Supreme Court in 1807, Chief Justice Marshall explained that ―for the
meaning of the term habeas corpus, resort may unquestionably be had
to the common law.‖ Ex parte Bollman, 8 U.S. 75, 93–94 (1807).
¶107 As in England, even after states passed habeas legislation,
the common law writ was not supplanted. Thus, although there are
some examples of a court denying a habeas petition because the
statute excluded the petitioner from the writ, Oaks, Habeas Corpus,

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supra, at 261, in other jurisdictions, ―statutory habeas corpus
jurisdiction was generously supplemented by powers derived from
the common law,‖ Id. at 255. For example, ―[a] court exercising
common law powers . . . may not have been inhibited in the exercise
of this power by statutory exceptions such as those relating to‖ post-
conviction petitioners. Id. And even though some state legislatures
may have excluded persons committed for ―felony or treason‖ from
the statutory protections of the writ, cases in the mid-nineteenth
century favored the view that courts could nonetheless grant the writ
to such prisoners under common law power. Id. at 260.
¶108 Thus, by the second half of the nineteenth century, the writ
power continued to be acknowledged as a standard feature of
common law. Ex parte Lange, 85 U.S. 163, 183 (1873) (―Authorities in
support of [the proposition that one in custody can petition for writ
of habeas corpus] are unnecessary, as wherever the principles of the
common law have been adopted or recognized they are universally
acknowledged.‖).
2. The Meaning of Writ of Habeas Corpus in the Late Nineteenth
Century
¶109 The State argues that in 1895, the people of Utah would
have understood habeas review to extend to post-conviction
petitions in very narrow circumstances, namely when subject matter
jurisdiction was challenged or it was argued that the conviction was
entirely void. Patterson, on the other hand, recognizes that these
types of limitations existed in some courts, but argues that other
courts had continued to expand habeas review to cover a broader set
of situations. Both the State and Patterson can find support for their
views.
¶110 Certainly, the limitations the State describes were
recognized during the nineteenth century. The protections of the Act
of 1679, and many state statutes patterned after it in the 1800s, did
not extend to ―persons convict or in execution by legal process.‖
Oaks, Habeas Corpus, supra, at 261. And it does not appear that the
common law power was much broader at the time. Rex A. Collings,
Jr., Habeas Corpus for Convicts—Constitutional Right or Legislative
Grace?, 40 CAL. L. REV. 335, 345 (1952); Oaks, Habeas Corpus, supra, at
262.22

_____________________________________________________________
22It is unclear the extent to which members of the Church of Jesus
Christ of Latter Day Saints (―LDS‖) would have carried the
(continued . . .)
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¶111 Indeed, at the close of the nineteenth century, the Utah
Territorial Court and the Utah Supreme Court reiterated this general
limiting principle. See Ex parte Douglas, 1 Utah 108, 109 (Sup. Ct.
Territory Utah 1873) (―[U]pon the hearing on a writ of habeas corpus,
where the party asks a discharge from imprisonment on final process
from a court of competent jurisdiction, and where the judgment is
regular upon its face and entered in the ordinary course of justice, the
party will not be discharged, but be compelled to seek a correction of
the irregularities in the court where they are alleged to have
occurred, and if he fail of redress in that way, to resort to his
appeal.‖); Ex parte Hays, 47 P. 612, 613 (Utah 1897) (―[C]an this court,
in a collateral proceeding by habeas corpus, look beyond the
judgment, and determine questions which arose during the trial of
the case . . . ? We think not.‖).23
¶112 Patterson acknowledges this authority but argues that the
general understanding of the purpose of habeas and the limitations

understanding of the writ that prevailed in the LDS community of
Nauvoo, Illinois in the 1840s when they relocated to what would
become the Utah Territory. And it is even less clear the extent to
which those views would still be in currency in the Utah Territory in
1895. But it is interesting to note that the Nauvoo City Council took
an approach to habeas corpus that one historian has described as
―imaginative‖ and not reflective of ―the contemporary consensus.‖
BENJAMIN E. PARK, KINGDOM OF NAUVOO: THE RISE AND FALL OF A
RELIGIOUS EMPIRE ON THE AMERICAN FRONTIER 126 (2020). In 1842, the
Nauvoo City Council passed a habeas corpus ordinance that allowed
a Nauvoo citizen to have a Nauvoo municipal court review the
―origin, validity & legality‖ of a warrant regardless of what
jurisdiction had issued the warrant. Id. This ―granted the municipal
court the authority to try the merits of cases, not just of arrests.‖ Id. at
127. And it permitted the Nauvoo courts to pass upon the validity of
warrants issued by other courts. Id.
23 However, many states recognized that a court could exercise its
habeas power with respect to a convicted person when the
convicting court had no subject matter jurisdiction, when the law
upon which the person was convicted was unconstitutional, when
the punishment given was greater than the court was authorized to
give, and when ―subsequent events such as a pardon or expiration of
the term of imprisonment‖ made the confinement illegal. Oaks,
Habeas Corpus, supra, at 263; see also CHURCH TREATISE, supra, § 81, at
109–11.

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on the scope of the habeas power were continuing to evolve in and
around the time of Utah Statehood. Patterson points to an 1880
California Supreme Court case, Ex Parte Kearny, 55 Cal. 212 (Cal.
1880), as proof of that evolution.
¶113 In Kearney, the defendant had been convicted in a court
that had jurisdiction under an ordinance that met constitutional
muster. Id. at 220. The California Supreme Court nevertheless
exercised its writ authority to release Kearney because it found that
Kearney‘s conduct did not meet the definition of the crime the
ordinance described. Id. at 228–29.
¶114 Closer to home, Patterson recounts the history of Ex parte
Snow, 120 U.S. 274 (1887), and Ex parte Nielsen, 131 U.S. 176 (1889), to
show the people of Utah would have understood that the scope of
what relief could be granted on a habeas petition was expanding.
¶115 In Snow, a case that originated in Utah Territorial Court,
the defendant was charged with three separate crimes for cohabiting
with more than one woman. 120 U.S. at 276. The three charges
corresponded to different time periods. Id. That is, each charge
involved the same seven women with whom Snow was cohabiting,
but each charge involved a different year of their plural marriage.
¶116 Snow petitioned for habeas relief, arguing that the three
charges should be considered a single charge since they related to the
same conduct. Id. at 280. The respondent asserted that Snow had
advanced this argument to the trial court, so the United States
Supreme Court could only review the decision pursuant to a writ of
error. Id. at 281. In other words, it argued that Snow was misusing
the writ of habeas corpus.
¶117 The United States Supreme Court ruled for Snow. Id. at
286–87. It held that a defendant could not be charged separately for
one continuous infraction of the statute and that therefore the trial
court lacked jurisdiction to impose more than one sentence. And the
Supreme Court held that because the error appeared on the face of
the judgment, it could grant relief by habeas petition. Id.
¶118 In Nielsen, another Utah case, the United States Supreme
Court considered a petition by a defendant who, after he had been
convicted of illegal cohabitation with multiple women, was charged
with adultery. 131 U.S. at 176. Nielsen argued that the adultery
charge was the same offense as the cohabiting conviction and thus
barred. Id. at 178. The Supreme Court agreed that the adultery charge
was ―comprised within‖ the cohabitation conviction, and thus would
be barred. Id. at 187–90.

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¶119 To reach that decision, the United States Supreme Court
had to consider whether it could reach such a challenge when it is
advanced by a petition for a writ of habeas corpus. Id. at 182. The
Court recognized the general rule that a conviction could not be
collaterally attacked by a habeas petition, but observed exceptions to
that general rule had been developed. Id. One such development, the
court noted, was that convictions based on unconstitutional laws
could be addressed by writ. Id. at 182–83. The court opined, ―It is
difficult to see why a conviction and punishment under an
unconstitutional law is more violative of a person‘s constitutional
rights than an unconstitutional conviction and punishment under a
valid law.‖ Id. at 183. Thus, although the trial court had jurisdiction
and the adultery law was not unconstitutional, the United States
Supreme Court directed that the petition be granted because of a
defect in the process of the trial. Id. at 191.
¶120 Patterson argues that these cases—cases that received
much newspaper attention in the Utah Territory and were therefore
presumably part of Utah‘s collective consciousness—demonstrate
that the writ was being used to mount collateral attacks on
convictions prior to the framing of the Utah Constitution.24 Patterson
_____________________________________________________________
24 See, e.g., Petition of Habeas Corpus, DESERET EVENING NEWS, Oct.
22, 1886, at 3, https://newspapers.lib.utah.edu/details?id=23181922
(reporting on Snow‘s petition for habeas corpus); The Decision of the
Supreme Court in the Snow Case, OGDEN HERALD, Feb. 7, 1887, at 4,
https://newspapers.lib.utah.edu/ark:/87278/s6qz3brt/7403223
(reporting on the United States Supreme Court decision to rule in
favor of Snow); The Snow Decision, SALT LAKE TRIB., Feb. 8, 1887, at 4,
https://newspapers.lib.utah.edu/ark:/87278/s6r5110v/13158248
(same); see also, e.g., Gone to Washington, UTAH ENQUIRER, Mar. 29,
1889, at 3,
https://newspapers.lib.utah.edu/ark:/87278/s6pr900q/1399401
(reporting that Nielsen‘s case would be heard by the United States
Supreme Court); Only One Punishment, OGDEN SEMI-WEEKLY
STANDARD, May 14, 1889, at 4,
https://newspapers.lib.utah.edu/ark:/87278/s6766gq7/6239698
(reporting the Court‘s decision in favor of Nielsen); The Nielsen Case,
UTAH ENQUIRER, May 17, 1889, at 4,
https://newspapers.lib.utah.edu/ark:/87278/s6mw3m6b/1400235
(reporting the court‘s decision in favor of Nielsen and noting that
―[t]he history of [Nielsen‘s] case has been detailed in these columns,
the brief of counsel for the appellant has been summarized, and the
(continued . . .)
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Opinion of the Court
has a point. In Snow, the court granted relief on an error that was
procedural, not a matter of subject matter jurisdiction. See Snow, 120
U.S. at 286. In Nielsen, the court extrapolated from the jurisdictional
exception in the name of preserving the defendant‘s constitutional
rights. See Nielsen, 131 U.S. at 183.
¶121 The scope of habeas corpus continued to evolve in other
ways. For example, many courts had originally been of the view that
habeas could not be used to determine custody of minors. However,
―through the natural development of the common law,‖ this changed
during the nineteenth century, and most courts evolved a way to use
the habeas writ ―in a manner best adapted to serve the welfare of the
child.‖ Oaks, Habeas Corpus, supra, at 274. And, until the United
States Supreme Court disallowed the practice, states could exercise
writ power to release prisoners held by federal officers. Id. at 275.
¶122 As a result, there is reason to believe, as Patterson
contends, that at the time of statehood, the people of Utah would
have understood a writ of habeas corpus that was expanding in use
and purpose. And, as explained below, even though this court
sometimes referenced limitations on the writ of habeas corpus, this
evolution continued throughout the twentieth century.25
3. The Twentieth Century Expansion in Utah of the Scope of the Writ
of Habeas Corpus
¶123 By the middle of the twentieth century, we granted relief
pursuant to a habeas petition on increasingly broader grounds.

able argument of Hon. F.S. Richards on his behalf has been given to
our readers in full‖).
25 One of the original Utah statutes relating to habeas corpus
suggested that a petitioner could collaterally attack a conviction in
certain circumstances. Section 1090 of the Revised Statutes of Utah of
1898 states,
No person who shall have been discharged by order of the
court or judge upon habeas corpus, shall be again
imprisoned, restrained, or kept in custody for the same
cause, except in the follow cases: . . . If, after a
discharge for a defect of proof, or for any defect of the
process, warrant, or commitment in a criminal case, the
prisoner shall be again arrested on sufficient proof and
committed by legal process for the same offense.
(Emphases added.)

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Thompson v. Harris, 144 P.2d 761 (Utah 1943), provides a solid
example of this continued expansion.26 In Thompson, the petitioners
argued that an alleged evidentiary error during sentencing had
deprived them of their due process rights in violation of the
constitution. Id. at 766. This court noted that habeas review normally
reviewed the jurisdiction of the trial court. Id. And the petitioners‘
allegations did not challenge the trial court‘s jurisdiction. However,
this court then stated,
We must never lose sight, however, of the fact that
habeas corpus is the precious safeguard of personal
liberty. That jurisdictional questions only are reachable
by the writ is not such an inflexible rule as cannot yield
to exceptional circumstances. It may be better to say
that the rule which apparently limits the scope of the
writ to jurisdictional questions is not a rule of
limitation, but a rule defining the appropriate spheres
in which the power should be exercised. Thus it has
been held that the writ will lie if the petitioner has been
deprived of one of his constitutional rights such as due
process of law.
Id.
¶124 This was not an outlier. We used similarly expansive
language in other decisions. See, e.g., Thompson v. Harris, 152 P.2d 91,
92 (Utah 1944) (stating that habeas corpus should only be used for
―the correction of jurisdictional errors and . . . errors so gross as to in
effect deprive the defendant of his constitutional substantive or procedural
rights‖ (emphasis added)).
¶125 We did not hide this shift from public view. To the
contrary, we transparently explained our evolving understanding.
For example, in Ward v. Turner, we reviewed a petition from an
inmate seeking to be ―release[d] from the prison for lack of due
process of law occurring during his trial.‖ 366 P.2d 72, 72 (Utah 1961)
(plurality). The court unanimously reversed the district court‘s grant
_____________________________________________________________
The State argues that the Thompson court was incorrect in how
26

it read federal case law and points out that federal habeas review is
largely defined by statute. However, the State does not dispute that
Thompson was and is precedential case law in Utah. Indeed, the State
concedes that after statehood, this court ―engaged in piecemeal
common law expansion of the writ‖ to include review of
post-conviction, post-appeal habeas petitions, like Patterson‘s.

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 PATTERSON v. STATE
Opinion of the Court
of the petition. But two justices noted that although writs of habeas
corpus, ―in a sense . . . invade the usual rules for the finality of
judgments,‖ the petitioner could have raised enough evidence to
―justify a release of a convicted person‖ based on the due process
claim. Id. at 74. Writing separately, Justice Crockett noted the
broadening role of habeas. He stated that using habeas corpus to
collaterally attack a conviction ―runs crossgrain‖ to traditional
procedures and he individually found it a ―misconception of the
purpose‖ of the writ. Id. at 75 (Crockett, J., concurring). But he
acknowledged the ―expanding notion‖ that the writ could in some
ways be used to collaterally attack a judgment and that the court
would grant a writ when ―due process of law has been so denied or
abused.‖ Id. He explained,
The utmost caution and forbearance should be
observed to avoid the incongruity above stated and to
see that the writ is used in aid of the administration of
justice and not to abuse or embarrass it. To this
purpose, even when the court deems that due process
of law has been so denied or abused that the writ of
habeas corpus should be granted, the proper order is
not necessarily the complete release of the defendant.
I appreciate the reasoning that the judgment should
be regarded as a nullity before such a writ is
warranted, and that some illogic may be confronted in
holding a defendant after his conviction is so declared.
However, the expanding notion of some of our courts
as to the function of post-conviction writs in practical
effect turns them into writs of error, which the writer
protests is a misconception of the purpose and a
misuse of such a writ. Nevertheless, the facts of life
must be reckoned with, and in my opinion a necessary
concomitant of that view is that there should only be a
remand to the proper custodial officer or to the court
having jurisdiction because this is necessary to avoid
the palpable distortion of the processes of justice which
may result from freeing the accused entirely.
Id. (citation omitted). In other words, even a justice who lamented the
expansion of the understanding of the writ of habeas corpus found
that he had to accept the reality that it had expanded.
¶126 Four years later, Justice Crockett delivered the unanimous
opinion of the court in Gallegos v. Turner and wrote that habeas could
be used to collaterally attack a conviction where, for example, ―there
has been a substantial failure to accord the accused due process of
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law,‖ ―there has been a knowing and wilful falsification of the
evidence,‖ or ―some other such circumstances that it would be
wholly unconscionable not to re-examine the conviction.‖ 409 P.2d
386, 387 (Utah 1965).
¶127 And in 1967, we recognized that the ―functions of habeas
corpus‖ had undergone a ―gradual expansion‖ to where habeas
could now be granted in collateral attacks. Bryant v. Turner, 431 P.2d
121, 122–23 & n.5 (Utah 1967), disapproved of on other grounds by Dunn
v. Cook, 791 P.2d 873 (Utah 1990).
¶128 In the years leading up to the 1984 constitutional
amendment, we consistently described a habeas petition as a
mechanism a person could use to collaterally challenge her
conviction. For example, in Brown v. Turner, we stated that habeas
could be used
when the court had no jurisdiction over the person or
the offense, or where the requirements of law have
been so disregarded that the party is substantially and
effectively denied due process of law, or where some
such fact is shown that it would be unconscionable not
to re-examine the conviction.
440 P.2d 968, 969 (Utah 1968); see also, e.g., Clark v. Turner, 387 P.2d
557, 558 (Utah 1963) (―A petition for habeas corpus brought by one
who is imprisoned after conviction or purported conviction of crime
tests only matters of jurisdiction; or some such grave error or impropriety
that it would deprive one of fundamental due process of law.‖ (emphasis
added)); Syddall v. Turner, 437 P.2d 194, 195 (Utah 1968) (―[A]
collateral attack under habeas corpus [is allowed] . . . in
circumstances which cannot be adequately dealt with by the
ordinary rules of procedure.‖); Johnson v. Turner, 473 P.2d 901, 904
(Utah 1970) (reaffirming ―our previously stated position‖ that a
habeas petition is allowed ―where it appears that there has been such
miscarriage of justice that it would be unconscionable not to
reexamine a conviction‖); Webster v. Jones, 587 P.2d 528, 530 (Utah
1978) (―[The habeas] writ may be used in certain exigent
circumstances, including where the court was without jurisdiction, or
there has been such unfairness or failure to accord due process of law
that it would be wholly unconscionable not to re-examine the
conviction.‖); Morishita v. Morris, 621 P.2d 691, 693 (Utah 1980)
(recognizing that habeas is not intended as a substitute for appeal but
can lie when there is a ―claim of fundamental unfairness in the trial
or a substantial and prejudicial denial of a person‘s constitutional
rights‖).

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 PATTERSON v. STATE
Opinion of the Court
¶129 Thus by 1984 the writ of habeas corpus was well
established as a tool that could be used to collaterally attack
convictions in certain circumstances.
4. The Effect of the 1984 Amendment
¶130 In 1984, Utah voters approved an overhaul of the judicial
article of the Utah Constitution. And that is when the language we
interpret in this opinion entered our constitution. Almost fifty-six
percent of Utah voters placed article VIII, sections 3 and 5 into our
constitution. STATE OF UTAH, GENERAL ELECTION REPORT (1984),
https://elections.utah.gov/Media/Default/Documents/Election_Re
sults/General/1984Gen.pdf. Section 3 states:
The Supreme Court shall have original jurisdiction to
issue all extraordinary writs and to answer questions of
state law certified by a court of the United States. The
Supreme Court shall have appellate jurisdiction over
all other matters to be exercised as provided by statute,
and power to issue all writs and orders necessary for
the exercise of the Supreme Court's jurisdiction or the
complete determination of any cause.
UTAH CONST. art. VIII, § 3. And section 5 states:
The district court shall have original jurisdiction in all
matters except as limited by this constitution or by
statute, and power to issue all extraordinary writs. The
district court shall have appellate jurisdiction as
provided by statute.
Id. art. VIII, § 5.
¶131 These sections were part of a new article that the people of
Utah adopted into the constitution to replace the existing judicial
article. In the older version, the courts were provided with authority
to issue specific writs, namely, ―writs of mandamus, certiorari,
prohibition, quo warranto and habeas corpus.‖ See UTAH CONST. art.
VIII, §§ 4, 7 (enacted 1895, repealed 1984). As the State notes, the new
article ―removed antiquated references to historical writs in favor of
a more generic and modern ‗all extraordinary writs.‘‖ Because we
look at the public meaning of the writ to the people in 1984, the
question becomes what the people of Utah would have understood
the term ―all extraordinary writs‖ to include in 1984, when they
inserted that phrase into the constitution.
¶132 Our cases in the years leading up to 1984 and closely
following it confirm that it was generally understood that
extraordinary writs could be used to collaterally challenge a
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Opinion of the Court
conviction based on factors other than lack of jurisdiction. See, e.g.,
Brady v. Shulsen, 689 P.2d 1340, 1341 (Utah 1984) (―[T]he writ of
habeas corpus can be used to attack a judgment of conviction in the
event of an obvious injustice or a substantial and prejudicial denial of
a constitutional right in the trial of the matter.‖); Andreason v. Turner,
493 P.2d 1278, 1279 (Utah 1972) (―[A] judgment is subject to a
collateral attack by an extraordinary writ . . . where the requirements
of the law have been so ignored or distorted that the party has been
substantially denied due process of the law, or where some other
circumstance exists that it would be wholly unconscionable not to re-
examine the conviction.‖); see also, e.g., Hurst v. Cook, 777 P.2d 1029,
1034 (Utah 1989); Chess v. Smith, 617 P.2d 341, 343 (Utah 1980); Brown,
440 P.2d at 969; Bryant, 431 P.2d at 122–23; Thompson, 144 P.2d at 766.
¶133 Indeed, as we recognized in Hurst, ―Although this Court
had already expanded the role of the Writ to protect against the
denial of a constitutional right in a criminal conviction in Thompson,
procedures implementing that function were provided by the
addition of Rule 65B(i) in 1969 to allow for ‗post-conviction
proceedings‘ as a branch of habeas corpus.‖ 777 P.2d at 1034.
¶134 Utah newspapers in the years leading up to 1984 discussed
cases where courts, both Utah and federal, heard post-conviction
petitions for habeas-like writs from inmates. See, e.g., High Court
Orders Inquiry Into Plea, PROVO DAILY HERALD, Oct. 25, 1979, at 3,
https://newspapers.lib.utah.edu/ark:/87278/s6mm0vrh/23941279
(reporting that the Utah Supreme Court had granted a petition for
writ of habeas corpus that collaterally attacked a conviction and
specifically noting that this court overturned the district court‘s
reasoning that the petition should be rejected because it should have
been brought as an appeal); Court of Appeals Hears Murder Case,
MIDVALE JOURNAL SENTINEL, Jan. 14, 1971, at 1,
https://newspapers.lib.utah.edu/ark:/87278/s62r863k/23737573
(reporting that the U.S. District Court of Utah granted a habeas
corpus petition alleging violation of constitutional rights in the
course of the trial); Counsel Named to Defend Men, TIMES INDEPENDENT,
Mar. 5, 1970, at 7,
https://newspapers.lib.utah.edu/ark:/87278/s68g9xvm/20457948
(reporting that a writ of habeas corpus had been issued on an
argument that the convicted had not been advised of their
constitutional rights); Allan Howe’s Request to Have Charge Set Aside
Rejected by Federal Court, PROVO DAILY HERALD, Mar. 13, 1977, at 19,
https://newspapers.lib.utah.edu/ark:/87278/s6qp0pkt/23921432
(describing a convicted individual petitioning for habeas corpus

45
 PATTERSON v. STATE
Opinion of the Court
based on alleged constitutional errors in the procedure of his
conviction).27
¶135 Thus, Patterson forwards ample evidence from which we
can conclude that the people of Utah would have understood a writ
power that was broad in scope. Indeed, for decades prior to the
constitutional amendment, both legal opinions and news reports
described a writ that could be used to mount a post-conviction
challenge. This supports the conclusion that the people of Utah gave
district courts, and this court, the constitutional authority to issue an
extraordinary writ that challenges a conviction on the basis of a
substantial error in the proceeding.28
¶136 The State argues that we should ignore what happened
with the writ by 1984 and interpret the constitution consistent with
how it would have been understood in 1895. We have rejected this
type of argument. In State ex rel. Lloyd v. Elliott, this court was faced
with the interpretation of the term ―writ of quo warranto‖ in the
constitution. 44 P. 248, 249 (Utah 1896). There, the court, much as we
have done here, traced the history of the term and noted how its
meaning had evolved throughout the years. Id. at 249–50. At least
one party in Elliott argued that the authority conferred in the
constitution to issue the writs of ―quo warranto‖ encompassed a
meaning of the term from before the language entered the
constitution. Id. at 249.
¶137 This court rejected that argument and instead pointed to
the term‘s ―known meaning, as used in common parlance in the
United States.‖ Id. at 250. This court continued,
It would be unreasonable to assume that the framers of
our constitution, regardless of the meaning attributed
to the term ―writ of quo warranto‖ in this country,
looked back through the centuries, into the middle
_____________________________________________________________
27 These newspapers are available digitally at
https://newspapers.lib.utah.edu.
28 That is not to imply that no limitations exist on our writ power.
We have explained that a habeas petition ―is not a substitute for
appeal,‖ but may be used in ―unusual circumstances,‖ such as when
there has been ―a substantial and prejudicial denial of a
constitutional right.‖ Hurst, 777 P.2d at 1035. As explained below,
Utah Rule of Civil Procedure 65C sets forth those limitations. See
infra ¶¶174, 182 & n.41.

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ages, designing to confer upon this court such
jurisdiction, and such only, as was exercised by the
courts of Westminster and king‘s bench under the
prerogative of the crown, no matter how enlarged the
use of the writ had become, through the process of time
and the requirements of justice. No such meaning was
intended. The constitution was framed by practical
men, who aimed at useful and practical results,
without reference to any process which has long ago
fallen into disuse, even in the country of its origin.
Id. It would be similarly unreasonable to look back to the time of
statehood to understand language the voters approved in 1984
without some evidence that the voters intended the amended
language to carry a meaning from the previous century.
¶138 What the State advocates is fundamentally inconsistent
with the logic of an original public meaning interpretive approach.
See supra ¶ 92. To accept the State‘s argument would require us to
accept that in 1984, the public evaluating the proposed amendment
would have understood that by returning the word ―writ‖ to the
constitution, they were not using the term as they generally
understood it, but as people in 1895 would have understood it.
¶139 But that is what the State argues. It claims that the
constitutional article adopted in 1984 was just ―linguistic clean up.‖
The State thus concludes that ―the contemporaneous record does not
show that the 1984 Amendment intended any substantive change to
the scope of the writ of habeas corpus as it was originally established
in [1895].‖
¶140 We disagree with the State‘s assertion as a matter of logic,
as we have just described. We also disagree with the assertion as a
matter of fact. We take particular issue with the way the State
characterizes the information that was in front of the voters. The
people of Utah would not have understood that they were voting on
a ―linguistic clean up.‖ Rather, the people of Utah would have
understood that they were being asked to enact a new judicial article
of the constitution.
¶141 The text of the constitutional proposition asked, ―Shall
Article VIII of the State Constitution be repealed and reenacted . . . to
provide a Judicial Article which: establishes the authority and
jurisdiction of the Supreme Court and District Courts . . . .‖
Proposition No. 3: Judicial Article Revision, in UTAH VOTER
INFORMATION PAMPHLET, at 14 (1984),

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 PATTERSON v. STATE
Opinion of the Court
https://elections.utah.gov/Media/Default/Historical%20VIPs/1984
%20VIP.compressed.pdf.
¶142 The preamble to the official text of Proposition No. 3 stated
that the proposition was ―[a] joint resolution of the Legislature
proposing to amend the Utah Constitution; relating to the judicial
article of the Utah Constitution; . . . Providing for the composition
and jurisdiction of the supreme court, the district court, and other
courts. . . .‖ Id. at 18. Section 1 of the proposition stated, ―It is
proposed to repeal and reenact Article VIII of the Utah Constitution,
to read: . . . .‖ Id. The proposition then gave the full text of the new
article. Id. Thus, from the voters‘ perspective, the ballot asked them
to place an entirely new judicial article into the constitution. And
nothing in front of the voters informed them that they should
construe the words they considered in any fashion other than by
their ordinary meanings.29
_____________________________________________________________
29 The State also references two parts of the Constitutional
Revision Committee (CRC) report. One part states, ―The original
jurisdiction to issue extraordinary writs has been retained, but is
written in more general language than that found in the present
provision.‖ CONST. REV. COMM‘N, REPORT OF THE UTAH
CONSTITUTIONAL REVISION COMMISSION SUBMITTED TO THE GOVERNOR
AND THE 45TH LEGISLATURE OF THE STATE OF UTAH FOR THE YEARS 1982
AND 1983, at 26 (1982)
https://digitallibrary.utah.gov/awweb/guest.jsp?smd=1&cl=all_lib
&lb_document_id=78702 (alteration in original). The State also
highlights that the CRC outlines ―three major objectives‖ of the new
judicial article. See id. at 15–16. The State argues that those objectives
―make no mention of redefining the Court‘s writ power generally, or
of habeas corpus specifically.‖
The problem with the State‘s reliance on the CRC report is that it
can also be read to support Patterson‘s argument. Indeed, Patterson
points to these sections of the CRC as well. That is, if the purpose of
the amendment was to retain the writ power, the people of Utah
would have understood that they were authorizing the courts to
issue the writ as they currently understood it. To accept the State‘s
contrary conclusion, one would have to indulge the belief that the
people of Utah in 1984 understood that the writ they had come to
know was different than the writ that existed at the time of
statehood. And the 1984 voters would have had to assume that the
reference to ―all extraordinary writs‖ in the constitution referred to
writs as the people of Utah would have understood them in 1895,
(continued . . .)
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C. The Legislature Cannot Diminish the Scope
of the Constitutional Writ Power
¶143 Now that we have clarified that the judicial writ power
comes from article VIII of the Utah Constitution and that the scope of
that power should be understood consistent with how a voter in
1984 would have viewed the writ, we need to examine the
Legislature‘s constitutional ability to restrict that power. Patterson
reasons that ―because the courts‘ writ power is granted directly by
the constitution,‖ the Legislature cannot substantively ―diminish or
restrict that power.‖ The State argues that even the constitutional
writ authority can be regulated by the Legislature so long as that
regulation is reasonable. The State avers that the Suspension Clause,
the existence of regulations when the constitution was adopted in
1895, and this court‘s case law bolster its argument.
¶144 We agree with Patterson that the constitution‘s plain
language supports the proposition that the Legislature can neither
expand nor diminish the substantive writ authority the people of
Utah granted the judicial branch. We are unconvinced by the State‘s
arguments to the contrary.
¶145 The State points to nothing in article VIII, sections 3 and 5
that would support the conclusion that the people of Utah intended
that the Legislature be able to regulate the substance of the writ
power. The plain language of sections 3 and 5 do not suggest that the
people intended that the Legislature could regulate extraordinary
writs in a way that substantively diminished their scope. To the
contrary, those sections point to the opposite conclusion.
¶146 Article VIII, section 5 states that district courts ―shall have
original jurisdiction in all matters except as limited by this
constitution or by statute, and power to issue all extraordinary
writs.‖ UTAH CONST. art. VIII, § 5. Thus, the people of Utah gave the
district court the power to issue all extraordinary writs but did not
include the clause ―except as limited . . . by statute‖ that was put on
the exercise of the district court‘s original jurisdiction. We presume
that the people of Utah chose the words of their constitution with

not the writ as they currently understood it. And the 1984 voters
would have had to arrive at that understanding despite the absence
of explanation that the drafters of the amendment thought that is
how the people of Utah should understand that language. There is
nothing in the CRC report that would allow us to treat the State‘s
mythology as history.

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Opinion of the Court
care, and that causes us to conclude that the omission of ―as
provided by statute‖ and ―except as limited . . . by statute‖ was
intentional.30 And the intention to take from that omission is that the
Legislature is not permitted to, by statute, modify the district court‘s
power under article VIII, section 5 to issue writs. Nor may it, by
statute, substantively limit the supreme court‘s original jurisdiction
under article VIII, section 3 to hear writs.
¶147 The concurrence resists the conclusion the plain language
requires and instead employs the expressio unius canon. It concludes
that the constitution‘s grant of ―original jurisdiction‖ to the supreme
court and ―power‖ to the district court to issue ―all extraordinary
writs‖—without an ―as provided by statute‖ limitation—simply
forecloses the Legislature from ―abrogating or expanding our
‗original jurisdiction‘ to issue extraordinary writs‖ but does not
restrict the Legislature‘s power to impose ―‗substantive‘ limits on the
scope of a writ.‖ See infra ¶¶ 245–47, 249–55, 270 n.67 (citations
omitted). And presumably, the concurrence would say the same
thing about the district court‘s power to issue writs—that the
Legislature can place ―‘substantive‘ limits‖ on that power as long as
it does not eliminate it entirely.
¶148 We see no textual basis for that interpretation. And,
indeed, the most natural application of the expressio unius canon
would suggest that by explicitly providing that the Legislature could
limit the district court‘s original and appellate jurisdiction, the
people intended that the Legislature could not restrict the district
court‘s power to issue writs. The concurrence points to nothing in
the constitutional language that even hints at the possibility that the
people of Utah intended that the Legislature be permitted to place
conditions on the power to issue a writ so long as the conditions did

_____________________________________________________________
30 Section 3 of article VIII of the Utah Constitution similarly states
that ―[t]he Supreme Court shall have original jurisdiction to issue all
extraordinary writs.‖ But that section also provides that ―[t]he
Supreme Court shall have appellate jurisdiction over all other
matters to be exercised as provided by statute.‖ UTAH CONST. art. VIII,
§ 3 (emphasis added). In other words, the people of Utah gave the
Legislature power to define when the Supreme Court can exercise its
appellate jurisdiction by including the words ―as provided by
statute.‖ Id. But the people did not give the Legislature the same
ability when it came to the writ.

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not rise to the level of an ―abrogation.‖ And there is nothing in the
constitution‘s text to support that interpretation.
¶149 We are not breaking new ground in recognizing that the
Legislature may not substantively regulate the judicial branch‘s
power to issue writs. Not long after statehood, a newspaper
deliverer sued a man named Durand in justice court for an unpaid
newspaper subscription. State ex rel. Robinson v. Durand, 104 P. 760
(Utah 1908). Durand appeared specially to argue that the justice
court did not have jurisdiction because he did not live in that city. Id.
at 761. The justice court ruled against Durand. Id. A statute at the
time stated that a district court could review, on a writ of
prohibition, a decision regarding whether an action was brought in
the wrong city. Id. Durand, apparently emboldened by this statute,
petitioned the district court for a writ of prohibition. Id. at 762. The
district court decided that the original action had indeed been
brought in the wrong city and issued the writ of prohibition against
the original justice court. Id. The justice of the peace appealed. Id.
¶150 We reversed the district court and directed it to dismiss
the petition. Id. at 765. We noted that the correct understanding of
the writ of prohibition would not encompass the claims at issue, but
that, by statute, the Legislature had clearly attempted to ―make the
writ of prohibition available to review the ruling in hand.‖ Id. at 762.
We stated that although we were not concerned with the ―wisdom‖
of this expansion, ―[w]e are, however, unable to yield assent to the
conclusion that it was within the province of the Legislature to so
modify and enlarge the office of the writ of prohibition.‖ Id. We held
that it is the constitution that grants courts the authority to issue
writs of prohibition and ―whatever power was conferred upon the
courts by the Constitution cannot be enlarged or abridged by the
Legislature.‖ Id. at 763.
¶151 We rejected the suggestion that such legislative
overstepping could be excused because it was reasonable. We stated,
It may be suggested that it was competent for the
Legislature to provide some remedy to review the
ruling of the justice other than on appeal. That is
undoubtedly true; but in doing so the Legislature must
not break in upon the Constitution or encroach upon
the prerogative of courts. The framers of the
Constitution we think wisely and for a good purpose
expressly conferred upon the courts and reserved unto
them the power to issue the writs mentioned in the
Constitution. If they had intended that the courts

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should have such power as may be prescribed by law,
and to issue writs of prohibition as may be defined by
the Legislature, they would have said so.
Id. at 764. We further reasoned that,
If it is within the power of the Legislature to enlarge
the office of the writ, it must also be within its power to
abridge it. If such power to enlarge and abridge exists,
then the power of courts to issue the writs, and the
cases to which they may apply, are wholly dependent
upon the will and discretion of the Legislature. In such
case the power of courts to issue the writs is as by
statute provided, and not as provided by the
Constitution.
Id. 31

_____________________________________________________________
31The State cites Winnovich v. Emery, a case we issued two months
before Durand, and argues that it supports the opposite conclusion.
See 93 P. 988 (Utah 1908). In Winnovich, the prosecution had charged
Winnovich with murder. Id. at 989. A judge found sufficient evidence
to hold Winnovich until trial. Id. Winnovich petitioned a different
judge for habeas relief, which that judge granted for lack of evidence.
Id. The sheriff, Emery, who was holding Winnovich, appealed. Id. In
the course of reaching our decision, we stated,
[T]he writ of habeas corpus, well known to the
common law, did not receive the respect from the
common-law courts its importance merited, and for
that reason it was made more effective in the reign of
Charles II by what is known as the ―Habeas Corpus
Act.‖ Since then, to a large extent, it has been and now
is regulated by statute. In modern times habeas corpus
may, therefore, be considered as a statutory
proceeding, although it had its origin in the common
law.
Id. at 990 (citation omitted). And that is the language the State cites
back to us in support of its argument that the Legislature can
regulate the substance of the writ.
We have concerns about the State‘s reliance on Winnovich. First,
the passage the State cites is dicta; we were not asked to decide the
source of our writ authority in Winnovich. Second, Winnovich’s
analysis is at odds with what we stated the same year in Durand
where the question was squarely before us. And finally, although we
(continued . . .)
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¶152 And lest one thinks this principle is outdated, we have
reaffirmed it in two more recent cases: Petersen v. Utah Bd. of Pardons,
907 P.2d 1148, 1152 (Utah 1995), and Brown v. Cox, 2017 UT 3, ¶ 14,
387 P.3d 1040.
¶153 In Petersen, a parolee appealed the decision of the Utah
Board of Pardons to revoke his parole. Petersen, 907 P.2d at 1150. He
argued that, in revoking his parole, the Board violated his
constitutional rights. Id. at 1151. We held that we lacked appellate
jurisdiction to hear his appeal from a Board decision. Id. A statute at
the time expressly stated that Board decisions were ―final and . . . not
subject to judicial review.‖ Id. (citation omitted). However, we then
declared that ―[a]lthough the Legislature can refuse to provide a
statutory appeal from orders of a governmental agency, the
Legislature cannot curtail the constitutional powers of this Court to issue
extraordinary writs‖ as found in article VIII, section 3 of the Utah
Constitution. Id. at 1152 (emphasis added). We held that ―[b]ecause
this Court‘s writ powers are derived from the constitution, the
Legislature cannot diminish them.‖ Id. We then addressed Petersen‘s
claims under our writ authority. Id. at 1152–55.
¶154 In Brown, a candidate for the Utah Legislature challenged
the outcome of a party primary election. 2017 UT 3, ¶ 1. At the time,
the elections code directed a party who wished to challenge the
result of a multi-county primary election to file a complaint directly
with the Utah Supreme Court. Id. ¶ 12. We acknowledged that this
would expand our original jurisdiction. Id. We rejected the

stated that the writ ―now is regulated by statute,‖ the only statutory
regulations at the time governed the procedural aspects of the writ.
See infra ¶¶ 158–60. Winnovich does not compel a different conclusion
than the one we reach.
The concurrence likewise prefers to rely on Winnovich over
Durand. See infra ¶¶ 275–82. In so doing it prefers an earlier-decided
case over a later one and Winnovich’s dicta over Durand’s holding.
That having been said, we agree with the concurrence that the lesson
from Durand is that the Legislature ―lacks the power to abridge or
enlarge our courts‘ jurisdiction to issue extraordinary writs.‖ See infra
¶ 282. Where we part ways with the concurrence is the concurrence‘s
argument that Durand also supports the proposition that the
Legislature may place substantive limitations on extraordinary writs
―so long as they do not abridge or enlarge our courts‘ jurisdiction.‖
See infra ¶ 282. The concurrence does not explain how a substantive
limitation on the writ power does not abridge that power.

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petitioner‘s argument that we should ―take ‗a liberal view of the
Legislature‘s power to grant Supreme Court jurisdiction.‘‖ Id. ¶ 13.
We agreed that ―the Legislature clearly has the power to create
appellate jurisdiction beyond that granted in the Constitution.‖ Id.
(citation omitted). But, like we do here, we noted that this view is of
―the Legislature‘s authority to create appellate jurisdiction.‖ Id. We
stated that while the ―Utah Constitution provides that this court
possesses ‗appellate jurisdiction over . . . matters to be exercised as
provided by statute[,]‘ . . . the Utah Constitution does not grant the
Legislature authority to alter our original jurisdiction.‖ Id. (first alteration
in original) (citation omitted) (emphasis added).
¶155 The State has no direct answer to these statements and
makes no attempt to square these principles with the arguments it
advances. Instead, the State argues that the writ powers preserved in
the constitution are subject to regulation, so long as those regulations
are reasonable and do not amount to a suspension. In support of this
contention, the State first points to the Suspension Clauses in the
Utah and United States Constitutions. These clauses generally state
that the ―[t]he privilege of the writ of habeas corpus shall not be
suspended, unless, in the case of rebellion or invasion, the public
safety requires it.‖ UTAH CONST. art. I, § 5 (emphasis added).
¶156 The State avers that this clause ―give[s] the respective
legislatures power to regulate the core writ of habeas corpus so long
as the regulation is not a suspension.‖ The State does not, however,
engage with the more pertinent language and structure of the Utah
Constitution, namely the language in article VIII. As we have
explained, the Utah Constitution contains an express grant of writ
authority that does not contemplate substantive statutory regulation.
See UTAH CONST. art. VIII, §§ 3, 5. The State does not even attempt to
explain why this language does not dictate a different interpretation
than that given to the federal Suspension Clause, which lacks the
express grant of authority included in Utah‘s constitution.32 See supra

_____________________________________________________________
32 It is interesting to note that during Utah‘s Constitutional
Convention, Weber County Delegate Thomas Maloney proposed
that the Suspension Clause include a provision stating that the writ
would be suspended ―in such manner as shall be prescribed by law.‖
PROCEEDINGS AND DEBATES OF THE CONVENTION ASSEMBLED TO ADOPT
A CONSTITUTION FOR THE STATE OF UTAH, DAY 18,
https://le.utah.gov/documents/conconv/18.htm. This would have
explicitly granted the Legislature the ability to suspend, and
(continued . . .)
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¶¶ 82–85. And while the concurrence echoes the State‘s view, it
likewise fails to persuasively address the text.
¶157 Moreover, the State does not distinguish between
substantive and procedural limitations on the writ. Thus far, we have
spoken about the ability to limit the substance of the writ—which we
have repeatedly held to be beyond legislative grasp.33 The State
appears to argue that the Legislature may impose any kind of
regulation on writs—substantive or procedural. The State supports
this by asserting that ―the writ of habeas corpus was regulated by
territorial statutes prior to statehood and was regulated by state
statute immediately after the Utah Constitution was ratified.‖
¶158 The regulations the State cites, however, governed only the
procedural aspects of the writ. A review of title 23 Habeas Corpus of
the Revised Statutes of Utah of 1898 reveals no substantive
limitations on the scope of the writ. See generally REV. STATUTES OF
UTAH (1898). But there were procedural requirements found in statute.

presumably regulate, the writ. The delegates rejected this proposal.
Id.
33 The Legislature appears to understand this distinction. In 2009,
the Utah Legislature considered a joint resolution that would have
put a constitutional amendment before Utah voters to consider. See
S.J. Res. 14, 2009 Gen. Sess. (Utah 2009),
https://le.utah.gov/~2009/bills/sbillamd/SJR014.pdf. That
amendment would have asked the voters to add article I, section 30
to provide, in part:
After a person‘s conviction and sentence have been
affirmed in a direct appeal under Article I, Section 12,
or the time to file a direct appeal has expired, and
notwithstanding any other provision of this
Constitution, the person may challenge the legality of
the conviction or sentence only in the manner and to
the extent provided by statute . . . .
Id. In other words, the Legislature understood that only the people
could modify the substance of the writ authority they had granted to
the courts. The joint resolution passed the Senate but failed to reach
the supermajority it needed in the House to be placed on the ballot.
See S.J. Res. 14 Joint Resolution - Challenging the Legality of a Conviction
or Sentence Bill Status / Vote, UTAH STATE LEG.,
https://le.utah.gov/~2009/status/sbillsta/SJR014.htm (last visited
Aug. 5, 2021).

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For example, in the 1898 laws, section 1069 details what must be
included in a petition,34 section 1070 requires that the petition be
sworn to, section 1074 requires the petition be made to the nearest
court, and sections 1079 through 1081 explain how to serve the
petition. See id. §§ 1069, 1060, 1074, 1079–81.
¶159 Contrary to the State‘s contention, we can find no
substantive limitations on the writ in either the territorial statutes or
in the first set of laws adopted after statehood. See COMPILED LAWS OF
THE TERRITORY OF UTAH (1876), Title XIX, Ch. 1; COMPILED LAWS OF
UTAH (1888), Title IX, Ch. X, §§ 5282–5304. And we continue to see no
substantive limitation on the scope of the writ in the compiled laws
that followed in 1907, 1917, and 1933.
¶160 In the 1940s and 50s, procedural rules were generally
moved out of the Utah Code and into court-promulgated rules. See
Brown, 2017 UT 3, ¶ 17 n.8. And in 1984, the new judicial article
enacted into the constitution assigned the adoption of ―rules of
evidence and procedure‖ to the court. Id. ¶ 17. As Patterson

_____________________________________________________________
34Section 1069 stated,
The petition for the writ of habeas corpus must state:
1. That the person in whose behalf it is sought is
restrained of his liberty, and the person by whom, and
the place where he is so restrained, mentioning the
names of the parties, if known, and if unknown,
describing them with as much particularity as
practicable.
2. The cause or pretense of such restraint, according
to the best information of the applicant; and if by virtue
of any legal process, a copy thereof must be annexed,
or a satisfactory reason given for its absence.
3. That the restraint is illegal, and wherein.
4. That the legality of the imprisonment has not
already been adjudged upon a prior proceeding of the
same character, to the best knowledge and belief of the
applicant.
5. Whether application for the writ has been before
made to, and refused by, any court or judge, and if so,
a copy of the petition in that case must be attached,
with the reasons for the refusal, or satisfactory reasons
given for the failure to do so.
REV. STATUTES OF UTAH § 1069 (1898).

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recognizes, article VIII, section 4 of the Utah Constitution allows the
Legislature to amend the court‘s procedures by a vote of two-thirds
of each chamber. See id. (discussing UTAH CONST. art. VIII, § 4). And
in this way, the Legislature does retain the ability to regulate the
procedure by which a party seeks an extraordinary writ. But that is
not the same as an ability to regulate the substance of the writ. Thus,
we disagree that the authority the State advances supports the
proposition that the Utah Constitution permits the Legislature to
substantively limit the scope of this court‘s writ power. But we
acknowledge that the Legislature has a say in the procedures that
govern the writ process through the mechanism provided in article
VIII, section 4 of the Utah Constitution.35
¶161 The concurrence offers two additional arguments. First, the
concurrence analogizes to the clause in article VIII, section 3 that
vests us with original jurisdiction to ―answer questions of state law
certified by a court of the United States.‖ The concurrence posits that
this ―does not foreclose the legislative regulation of the elements of
and defenses to claims that come before us in the exercise of that
jurisdiction.‖ Infra ¶ 260. But the correctness of that assertion
depends on what the concurrence means by ―legislative regulation.‖
If that means the Legislature defines the elements and defenses of the
substantive law that we apply to the questions the federal courts
_____________________________________________________________
35 The concurrence asserts that the text and structure of article
VIII, sections 3 and 5 do not support the proposition that the
Legislature lacks power to adopt any ―substantive‖ limits on the
scope of a writ, or confines the Legislature‘s power to amending our
―procedural‖ rules in this field. Infra ¶ 247. If article VIII, section 4
did not speak directly to the issue, we might conclude that the
Legislature had no role to play in defining either the substance or the
procedure governing the writ. But section 4, which entered the
constitution at the same time as sections 3 and 5, makes clear that the
Legislature can modify the procedural rules the court employs if it
follows the constitutionally mandated process. In this way, the
constitution distinguishes between substance and procedure in the
context of the judiciary‘s power to issue writs.
We also note that we are only speaking of the scope of the
constitutional writ authority and nothing in this analysis prevents
the Legislature from creating a statutory remedy for post-conviction
relief that exists independent from the constitutional writ. But the
Legislature cannot, consistent with the Utah Constitution, replace the
writ with a statutory remedy.

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Opinion of the Court
certify, then of course the Legislature has the power to ―regulate‖
that underlying law.
¶162 If, on the other hand, the concurrence interprets
―legislative regulation‖ to mean that the Legislature can tell us what
types of certified questions we can answer, there is no textual basis
for that conclusion. In other words, we agree that if the federal
district court certifies a question of Utah estate law, we would apply
the Utah Probate Code the Legislature enacted. But nothing in the
constitution permits the Legislature to pass a law telling this court
that it cannot answer certified questions concerning estate law. That
substantive regulation of our jurisdiction over certified questions—as
opposed to the substance of the underlying law we examine to
answer the certified question—lies outside the Legislature‘s
constitutional authority.
¶163 This is consistent with the way we have described our
original jurisdiction, and the district court‘s power, to issue
extraordinary writs. The Legislature defines the elements and
defenses that the courts apply when we hear a writ arising out of a
theft conviction. But nothing in the Utah Constitution permits the
Legislature to tell the judiciary that it cannot hear writs challenging
theft convictions.
¶164 Second, the concurrence relies on the Legislature‘s
―plenary‖ authority to make law as a basis to conclude that the
Legislature can put substantive limitations on the judicial writ
power. See infra ¶¶ 256–57. The concurrence points to two
constitutional sections—the Open Courts Provision and article XVI,
section 5‘s ban on the abrogation of a wrongful death cause of action
(Wrongful Death Clause)—to bolster that claim. See infra ¶ 266.
Specifically, the concurrence argues that because we have interpreted
those clauses, which constrain legislative action, to permit the
Legislature to enact some restrictions, the Legislature can similarly
place restrictions on the court‘s writ authority. For example, the
concurrence notes that, in the face of the constitutional prohibition
that such claim ―shall never be abrogated,‖ we have upheld the
Legislature‘s ability to ―‗enact reasonable procedures for the
enforcement of wrongful death actions‘ and to ‗provide for
reasonable defenses that are not inconsistent with the fundamental
nature of the wrongful death action itself.‘‖ See infra ¶¶ 267–68. And
the concurrence notes that we have upheld a statute of repose in the
face of Open Courts provision challenges. See infra ¶ 269 (citing Waite
v. Utah Lab. Comm’n, 2017 UT 86, ¶ 19, 416 P.3d 635).

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¶165 The concurrence argues that we have ―identified no
meaningful basis for interpreting article VIII any differently from
these provisions.‖ Infra ¶ 270. We disagree. There is a fundamental
difference between a restriction on legislative authority and a
constitutional grant of power to a co-equal branch of government.
The way we approach questions of whether the Legislature violates a
constitutional restriction on its power differs from how we approach
questions of whether the Legislature has ventured into terrain the
constitution assigns to another branch.
¶166 For example, the Wrongful Death Clause protects an
individual‘s right to bring a wrongful death action by providing that
―[t]he right of action to recover damages for injuries resulting in
death[] shall never be abrogated.‖ UTAH CONST. art. XVI, § 5. We
agree with the concurrence that the bar on ―abrogat[ing]‖ wrongful
death actions implies that restrictions or regulations on wrongful
death actions that do not rise to the level of an abrogation may be
permissible. See infra ¶¶ 267–68. But that does not answer the
question Patterson and the State place before us.
¶167 The question here is the extent to which the Legislature
may, consistent with the Utah Constitution, regulate a power that is
expressly granted to another branch of government. When questions
concerning the distribution of powers arise, we answer them by
reference to article V, section 1 of the Utah Constitution.36 For
example, if we were to examine whether the Legislature could pass a
law telling the Governor what qualifications her general counsel
must have, we would not assume that the Legislature‘s near plenary
authority to make law would allow the Legislature to tell the
Governor who she could hire. Rather, we would ask whether the
Legislature was, by wading into the question of what the Governor
should look for in an attorney, ―exercis[ing] any function[]
appertaining to‖ the executive branch. See UTAH CONST. art. V, § 1.

_____________________________________________________________
36 Article V, section 1 of the Utah Constitution provides:
The powers of the government of the State of Utah
shall be divided into three distinct departments, the
Legislative, the Executive, and the Judicial; and no
person charged with the exercise of powers properly
belonging to one of these departments, shall exercise
any functions appertaining to either of the others,
except in the cases herein expressly directed or
permitted.

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As such, cases interpreting limitations on legislative authority, like
those dealing with the Wrongful Death and Open Courts Clauses, do
not answer questions about what the Utah Constitution permits the
Legislature to do with the writ authority granted to the courts.
¶168 And here, the Utah Constitution has already supplied the
answer to the distribution of powers question. Article VIII, section 4
of the Utah Constitution requires the Supreme Court to ―adopt rules
of procedure and evidence to be used in the courts of the state.‖ That
provision also permits the Legislature to ―amend the Rules of
Procedure and Evidence adopted by the Supreme Court upon a vote
of two-thirds of all members of both houses of the Legislature.‖
UTAH CONST. art. VIII, § 4. Thus, the Utah Constitution gives the
Legislature a significant role in determining how the writ process is
managed.37 But, as we have described above, the Utah Constitution
omits language that would give the Legislature authority to regulate
the substance of the writ power. See supra ¶¶ 145–60. Because the
people of Utah charged the judiciary with the exclusive power to
issue writs and did so without reserving any role for the

_____________________________________________________________
37 The concurrence notes that we ―stop[] short of defining the
proposed line between ‗substance‘ and ‗procedure.‘‖ Infra ¶ 253; see
also infra ¶ 223. That is true, and it is by design. Unlike the other
questions we address in this opinion, the parties did not specifically
brief this question. And, in fairness to them, we did not ask them, in
our supplemental briefing order, to address whether, in this context,
a time bar should be considered a substantive restriction or a
procedural requirement. This is a question we leave for a case where
it has been fully briefed under the rubric we set forth in this opinion.
The concurrence asserts that this casts a ―vague constitutional cloud
over the PCRA without giving the legislature or the lower courts any
indication of the scope of the supposed problem.‖ Infra ¶ 253. This is
an unduly pessimistic view. In response to the State‘s argument that
the Legislature has near plenary authority to regulate the writ, we
explain that the constitution does not give the Legislature such broad
powers. And we outline the constitutional power that the Legislature
has to amend the rules that govern procedure. Should a question
arise about whether the Legislature has placed an unconstitutional
restriction on the writ, parties will know that the question they need
to brief is whether the restriction is substantive or procedural.
Contrary to the concurrence‘s forecast, the skies have not been this
clear in this area for quite some time.

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Legislature,38 the Legislature exercises a function that appertains to
the judiciary when it attempts to place substantive restrictions on the
writ.
¶169 In short, we have now answered the three questions that
we posed above. Our writ power comes from article VIII of the Utah
Constitution. The scope of the writ power must be understood with
reference to what the people of Utah would have understood a writ
to mean in 1984. And the Legislature may not diminish the substance
of that writ power, but it may regulate writ procedure by the method
article VIII outlines.
III. THE PCRA AND RULE 65C DO NOT CONTAIN
AN EGREGIOUS INJUSTICE EXCEPTION
¶170 Patterson argues that even if his petition is untimely, this
court could employ an egregious injustice exception and hear the
untimely petition. We acknowledged the possibility of an egregious
injustice exception in Gardner v. State, 2010 UT 46, 234 P.3d 1115, and
explored it in Winward v. State, 2012 UT 85, 293 P.3d 259. But we have
not definitively opined that such an exception actually exists.
¶171 In Gardner, a post-conviction petitioner was barred from
raising his claims under the PCRA. 2010 UT 46, ¶¶ 1–2. Gardner
argued that this court had the constitutional authority ―to apply
exceptions to the procedural and limitations bars of the PCRA.‖ Id.
¶ 90. In response to this argument, we stated that we had not decided
―whether the PCRA and Rule 65[C] now wholly accommodate the
full measure of our constitutional authority or whether the Utah
Constitution requires that we be able to consider, in some cases, the
merits of claims otherwise barred by the PCRA.‖ Id. ¶ 93. We
ultimately decided that we did not need to ―define the full extent of
our authority to remedy an egregious injustice‖ because not hearing
Gardner‘s petition would not constitute an egregious injustice. Id.
¶ 94.
¶172 In Winward, the petitioner argued that we should recognize
the egregious injustice exception we previewed in Gardner. 2012 UT
85, ¶ 5. We offered our view on what might constitute an ―egregious
injustice‖ and what showing a petitioner would have to make to
trigger the exception. Id. ¶¶ 13, 17–20. But we again declined to

_____________________________________________________________
38 Aside, perhaps, from the ability to suspend the writ ―in case of
rebellion or invasion‖ when ―the public safety requires it.‖ UTAH
CONST. art. I, § 5.

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recognize the exception because Winward‘s petition would not, in
the end, warrant its application. Id. ¶¶ 13, 17–20.
¶173 Neither Gardner nor Winward addressed the difference
between a petition brought under the PCRA and our constitutional
writ power. The analysis in both these cases started from the premise
that we had constitutional authority ―to apply exceptions to the
procedural and limitations bars of the PCRA.‖ Gardner, 2010 UT 46,
¶ 90.
¶174 As we reread Winward, we can see that characterizing our
constitutional authority over the writ power as an ―exception‖ to the
PCRA may have contributed to our willingness to speculate about
the existence of an egregious injustice exception. As we reiterate in
this case, and as we had explained it before 2008—when the
Legislature amended the PCRA to state that act is the ―sole legal
remedy‖ for post-conviction relief, see infra ¶ 182—we exercise our
writ power independent of the PCRA. But that independent exercise
is largely hidden from view because Utah Rule of Civil Procedure
65C—which incorporates the PCRA—governs the exercise of that
power. And we exercise that power in total harmony with the PCRA.
¶175 To understand how the adoption of rule 65C changed the
landscape and may have led us to our statements in Winward about
the egregious injustice exception, it is helpful to review the history of
rule-making in this arena. In 1969, this court first adopted procedural
rules aimed at post-conviction habeas petitions. We located these
procedures in Utah Rule of Civil Procedure 65B(i). See Hurst v. Cook,
777 P.2d 1029, 1032 (Utah 1989). We based rule 65B(i) substantially on
the Uniform Post-Conviction Procedure Act. Id. at 1034.
¶176 After we adopted rule 65B(i), we did not do a very good
job of abiding by it. We continued to apply procedural bars and
exceptions to those bars that rule 65B(i) did not contain. For example,
even though rule 65B(i) did not prohibit a habeas petition from
raising a claim that was or should have been raised on appeal, we
held that a petitioner could not. See Fernandez v. Cook, 783 P.2d 547,
549 (Utah 1989) (―[I]n the ordinary case, a party may not raise issues
in a habeas corpus petition that could or should have been raised on
direct appeal.‖). But see State v. West, 765 P.2d 891, 894 (Utah 1988)
(―Even though both of defendant‘s postconviction proceedings
involved similar (but not the same) issues, rule 65B(i) does not
prevent our consideration of his claims.‖). We also recognized an
exception to this rule even though rule 65B(i) contained no such
provision. This exception permitted a petitioner to raise a claim she

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could or should have raised on appeal if there were ―unusual
circumstances.‖ Dunn v. Cook, 791 P.2d 873, 876 (Utah 1990).
¶177 And we continued to interpret that rule in our case law.
Rule 65B(i) required that the petitioner bring all her constitutional
claims in one habeas proceeding. See West, 765 P.2d at 894. But the
rule allowed a petitioner to escape this bar for ―good cause shown.‖
Id. In Hurst, we outlined several circumstances that constituted good
cause. 777 P.2d at 1037. For example, we said the discovery of new
facts could constitute ―good cause‖ and excuse the procedural bar. Id.
The good cause circumstances Hurst laid out were repeatedly
recognized and were sometimes referred to as the Hurst factors. See,
e.g., Gardner v. Galetka, 2004 UT 42, ¶¶ 11–12, 94 P.3d 263; see also
Tillman v. State, 2005 UT 56, ¶ 22, 128 P.3d 1123.
¶178 Against this backdrop, the Legislature adopted the PCRA
in 1996. See Post-Conviction Remedies Act, 1996 Utah Laws 881
(codified as amended at UTAH CODE § 78B-9-101–503). The PCRA
resembled rule 65B(i) in a number of respects. It outlined bars for
issues that were or could have been raised on appeal. § 6, 1996 Utah
Laws at 882. And it barred petitioners from raising issues that had
been previously raised in a post-conviction proceeding. Id. The
PCRA did not specifically include the exception we had recognized
that permitted a party to raise a claim that ―could have been raised
on appeal‖ in ―unusual circumstances.‖ See 1996 Utah Laws 881–83.
Nor did the PCRA recognize the ―good cause‖ exception to the
successive-petitions bar that had been in our rules of procedure. See
id. But the PCRA did contain an exception to its statute of limitations
where ―interests of justice‖ excused the untimeliness. § 7(3), 1996
Utah Laws at 882.
¶179 After the Legislature passed the PCRA, we grappled with
how it interacted with our existing judicially created procedural bars
and associated exceptions.39 For example, in Gardner v. Galetka, we

_____________________________________________________________
39In Brown v. Cox, we recounted the history of the push and pull
between the judicial and legislative branches with respect to the
authority to enact the rules that govern judicial process. 2017 UT 3,
387 P.3d 1040. There we explained,
Before 1943, the Utah Supreme Court enacted
procedural rules, but the Legislature could supersede
those rules by statute. Between 1943 and 1951, the
Legislature shifted primary procedural rule-making
authority to the Utah Supreme Court ―by providing
(continued . . .)
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Opinion of the Court
faced a petitioner who brought a second post-conviction petition.
2004 UT 42, ¶¶ 5–6. The State argued that the petition should be
dismissed because it raised an issue that was or could have been
raised in a prior postconviction proceeding. Id. ¶ 10. It based this
argument on the PCRA‘s bar, which, by way of reminder, did not
contain the ―good-cause‖ exception that rule 65B(i) did. Id.
¶180 Gardner argued that we should nevertheless apply the
good-cause exception. Id. ¶ 11. We noted that, notwithstanding the
PCRA‘s omission of a good-cause exception, we could analyze
whether Gardner‘s claim would qualify for that exception. We
concluded that exception would ―retain [its] independent
constitutional significance and may be examined by this court in our
review of post-conviction petitions.‖ Id. ¶ 15. We further stated that
―to the degree that the PCRA purports to erect an absolute bar to this
court‘s consideration of successive post-conviction petitions, it
suffers from constitutional infirmities,‖ id. ¶ 17, and we ―will
continue to exercise our constitutionally vested authority where
appropriate,‖ id. ¶ 18. In other words, we recognized that this
judicially created exception that predated the PCRA constituted an

that ‗all laws in conflict [with court rules] . . . shall be of
no further force and effect.‘‖ By 1951, the Legislature
―expanded the supreme court‘s rule-making
responsibilities to encompass evidentiary as well as
procedural rules.‖ In 1983, we reasoned that
procedural rulemaking was ―the exclusive prerogative
of this [c]ourt.‖ While the 1984 amendment to article
VIII, section 4 of the Utah Constitution tempered our
holding in Brickyard by preserving legislative power to
―amend‖ certain court rules, the amendment solidified
our constitutional authority to adopt rules of evidence
and procedure.
Id. ¶ 17 n.8 (alterations in original) (citations omitted). In Brown, we
clarified that, after the 1984 constitutional amendments, if the
Legislature wanted to amend a rule of evidence or procedure, it
needed to do so in a manner that conveyed a ―clear indication‖ to
amend our rules, preferably a joint resolution passed by the
constitutionally required super majority of each house. Id. ¶ 23.
Uncertainty surrounding the interplay between the PCRA and
rule 65C echoes this history of the two branches exploring how the
Utah Constitution expects us to exercise our shared power to create
court rules of procedure and evidence.

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exercise of our constitutional authority that existed independent of
the PCRA and its exceptions. See id. ¶¶ 15–18.
¶181 We later opined that our ―exceptions‖ were based on our
constitutional authority. Tillman, 2005 UT 56, ¶¶ 20–22 (―[B]ecause
‗the power to review post-conviction petitions ―quintessentially . . .
belongs to the judicial branch of government,‖‘ and not the
legislature, all five common law exceptions ‗retain their independent
constitutional significance and may be examined by this court in our
review of post-conviction petitions.‘‖ (quoting Galetka, 2004 UT 42,
¶¶ 17, 15)); see also Gardner, 2010 UT 46, ¶ 92 (―[W]e held that [the
good-cause exception] related to our constitutional authority to grant
relief in cases of obvious injustice.‖ (citing Tillman, 2005 UT 56,
¶¶ 20–22)).40
¶182 In 2008, the Legislature amended the PCRA to state that it
was the ―sole legal remedy‖ for a post-appeal challenge to a
conviction or sentence. Gardner, 2010 UT 46, ¶ 91. The following
year, we amended our rules of procedure to incorporate the PCRA
as the ―sole legal remedy‖ for post-conviction petitions. Id. ¶ 92.41
¶183 By adopting the terms of the PCRA into our rules, we
largely avoided having to consider constitutional questions that
were raised by the inconsistencies between our rules and the
PCRA.42 For example, we did not have to consider whether the

_____________________________________________________________
40 This is consistent with how we talked about the good-cause
exception when we addressed it comprehensively in Hurst. We
stated that, ―[q]uintessentially, the Writ belongs to the judicial
branch of government.‖ Hurst, 777 P.2d at 1033. And the constitution
―presupposes, a judicial department armed with process sufficient to
fulfill its role as the third branch of government.‖ Id.
41 As a reminder, Utah Rule of Civil Procedure 65C(a) states,
This rule governs proceedings in all petitions for
post-conviction relief filed under the Post-Conviction
Remedies Act, Utah Code Title 78B, Chapter 9. The Act
sets forth the manner and extent to which a person
may challenge the legality of a criminal conviction and
sentence after the conviction and sentence have been
affirmed in a direct appeal . . . or the time to file such
an appeal has expired.
42 Patterson argues that rule 65C is an improper cede of our
constitutional power to the Legislature. We wholeheartedly disagree
(continued . . .)
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Opinion of the Court
Legislature could constitutionally place a statute of limitations on a
petition entreating us to exercise our constitutional writ authority.
After we adopted rule 65C, the procedural bars and exceptions to
those bars were the same, whether they were housed in statute or
court rule.43
¶184 However, the adoption of rule 65C, and our acceptance of
the PCRA‘s narrowed set of exceptions to the procedural bars,
precipitated another question: Were the broader, open-ended
exceptions that we abolished constitutionally required? Or, in the
words of the Gardner court, does ―the Utah Constitution require[]
that we be able to consider, in some cases, the merits of claims
otherwise barred by the PCRA‖ and rule 65C? Gardner, 2010 UT 46,
¶ 93. And we began to employ principles of constitutional avoidance
to evade that question when it was presented to us.

with that contention. The Utah Constitution gives this court the
authority to promulgate rules of evidence and procedure. UTAH
CONST. art. VIII, § 4. We enacted rule 65C pursuant to that
constitutional authority. That we elected to exercise that authority in
a way that mirrors what the Legislature did in the PCRA does not
evidence an abdication of our constitutional authority. To the
contrary, it is an expression that we believed at the time that we
agreed that the PCRA set forth an acceptable manner of regulating
the procedure by which we would hear writ petitions.
43 One consequence of this is that we began to be less precise in
the way we talked about the PCRA and our writ power. For
example, in 2012, we stated that ―[t]he PCRA was amended in 2008
to ‗extinguish‘ the common law exceptions found in Hurst v. Cook.‖
Taylor v. State, 2012 UT 5, ¶ 11 n.3, 270 P.3d 471. And again in 2015,
we noted that Hurst‘s ―common law ‗exceptions‘ . . . were repudiated
by the legislature in 2008.‖ Pinder v. State, 2015 UT 56, ¶ 56, 367 P.3d
968.
But neither of these cases mentioned our own role in eliminating
those exceptions. Neither did those cases address what we had
recognized in Gardner v. Galetka, 2004 UT 42. That is, that even after
the Legislature enacted the PCRA, the procedural-bar exceptions,
which existed before the PCRA, retained their ―independent
constitutional significance and may be examined by this court in our
review of post-conviction petitions.‖ Id. ¶ 15. In other words, we did
not, in those cases, explore the possible constitutional ramifications
of that elimination.

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¶185 For example, in 2010, Gardner—the same Gardner, whose
petition was at issue in Gardner v. Galetka, 2004 UT 42—brought
another post-conviction petition. See Gardner, 2010 UT 46. The State
argued that Gardner could have raised those claims in his prior post-
conviction proceeding and so was barred by the PCRA.44 Id. ¶ 1.
Gardner argued that this court had the authority, as we stated in
Gardner v. Galetka, to hear cases even when barred by the PCRA. Id.
¶ 90. Quoting Galetka back to us, Gardner argued we could apply the
exceptions that this court had recognized before the PCRA.45 We
responded to this argument by noting that cases like Galetka were
decided before the PCRA was amended to say that its terms were
exclusive, and before we incorporated those limits into rule 65C. Id.
¶ 91. And we had not yet examined how the scope of our authority
changed after these enactments. Id. ¶ 93.
¶186 But in the end, we decided that even if these judicially
made exceptions had survived the amendment of the PCRA and the
adoption of rule 65C, Gardner would nonetheless fail to meet the
requirements of the exception he wanted the court to adopt. Id.
¶¶ 94–95. So we upheld the dismissal of his procedurally-barred
petition. Id. ¶ 98.
¶187 But in our discussion, we hinted that the Utah
Constitution might ―require[] that we be able to consider, in some
cases, the merits of claims otherwise barred by the PCRA.‖ Id. ¶ 93.
_____________________________________________________________
44The PCRA states that a ―petitioner is not eligible for relief
under this chapter upon any ground that: . . . was raised or
addressed in any previous request for post-conviction relief or could
have been, but was not, raised in a previous request for post-
conviction relief.‖ UTAH CODE § 78B-9-106(1)(d).
45 A consequence of the way Gardner framed his argument is that
we only talked about our constitutional authority in terms of our
ability to apply an exception to the PCRA‘s time bar. This framing
caused us to talk about our constitutional authority as ―residual
authority‖ and to seemingly constrain the question of our
constitutional authority to whether or not we could apply an
exception to the statutory PCRA. But this framing ignored what we
had recognized in prior case law. That is, that our writ authority
―retain[s] . . . independent constitutional significance‖ in the face of
legislation, Galetka 2004 UT 42, ¶ 15, and ―the Legislature [has] no
power to restrict the writ powers,‖ Petersen v. Utah Bd. of Pardons, 907
P.2d 1148, 1152 (Utah 1995).

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Or, in other words, that we might have ―authority to remedy an
egregious injustice.‖ Id. ¶ 94.46 And the State, at that time, agreed
that we did, acknowledging that ―this court retains constitutional
authority, even when a petition is procedurally barred, to determine
whether denying relief would result in an egregious injustice.‖ Id.
¶ 93. But we did not decide the question because to do so would
have been inconsistent with ―our obligation to ‗avoid addressing
constitutional issues unless required to do so.‘‖ Id. (citation omitted).
¶188 Two years later, in Winward, a petitioner again argued that
we should apply an exception to save his otherwise time-barred
petition. 2012 UT 85. Unlike in Gardner, the petitioner did not
preserve an argument that there was a pre-PCRA exception to apply
to his case. Id. ¶¶ 8–11. Instead, Winward latched onto the
―egregious injustice‖ language we had used in Gardner and argued
that we had the constitutional authority to excuse a procedural bar to
prevent an egregious injustice. Id. ¶¶ 13, 16.
¶189 As in Gardner, the State did not contest Winward’s assertion
that there might be an ―‘egregious injustice‘ exception‖ to the PCRA.
See id. ¶¶ 15–16 (quoting Gardner, 2010 UT 46, ¶¶93–94). But, again
as in Gardner, we declined to reach the constitutional question
because we concluded that Winward would not qualify for whatever
exception we might announce. Id. ¶ 13.
¶190 But even though we again invoked constitutional
avoidance principles, we did not stop there. Although we agreed
that Winward would not qualify for an exception, and although we
recognized that the parties had not briefed the issue, we
―articulate[d] a framework for considering a petitioner‘s claim that
he qualifies for an exception to the PCRA‘s procedural bars.‖ Id.
¶ 17. Under Winward, we first look to see whether the case raises the
―the type of issue‖ that would inspire us to consider whether an
exception exists. See id. ¶ 18. If the petitioner can meet that burden,
she must then convince us that an egregious injustice exception
exists through briefing that includes ―an articulation of the exception

_____________________________________________________________
46 It is not entirely clear from where the ―egregious injustice‖
nomenclature hails. In Gardner, we say that the State acknowledged
that ―this court retains constitutional authority, even when a petition
is procedurally barred, to determine whether denying relief would
result in an egregious injustice.‖ 2010 UT 46, ¶ 93. But it does not
appear that we had ever used that phraseology before.

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itself, its parameters, and the basis for this court‘s constitutional
authority for recognizing such an exception.‖ Id.
¶191 Unfortunately, since Winward, parties like Patterson have
been forced to aim at an amorphous, and possibly non-existent,
―egregious injustice exception.‖ And the guidance we did provide
suggested a ―we will know it when we see it‖ type of test. The State
credibly reports that this has created a legal atmosphere where
―arguments over the existence of an ‗egregious injustice‘ exception to
the PCRA‘s procedural bar have become ubiquitous in the district
court, the court of appeals, and [the supreme court].‖ The State
supports this contention with citations to fifteen recent cases in
which the parties have briefed whether the petitioner had articulated
and merited application of an egregious injustice exception. With the
benefit of hindsight, we can see that our invitation to explore the
contours of a potential exception has not benefitted petitioners, their
counsel, nor the bench.
¶192 And Winward‘s framing of the question has obstructed our
path to the question we need to answer. The question lingering in
Gardner and Winward is not whether there is a pre-PCRA exception
that we can apply to save a time-barred petition. We eliminated any
such exception when we adopted rule 65C. Nor is the question
whether there is some new ―egregious injustice‖ exception that we
might define and apply in an appropriate case.
¶193 The real question is the one that Gardner presaged and
Winward obfuscated: whether application of the procedural bars
found in the PCRA and rule 65C violate a petitioner‘s constitutional
right to avail herself of the writ the Utah Constitution guarantees. In
other words, are the bars and exceptions we borrowed from the
PCRA and adopted in rule 65C so narrow that without some sort of
additional exception like those we had previously recognized, rule
65C and the PCRA violate a petitioner‘s constitutional rights?
¶194 We appreciate the Gardner and Winward courts intuiting
the trouble that would flow from foreclosing the possibility that a
case may exist that we should hear even though the PCRA and rule
65C would bar them. But we believe the time has come to make
explicit what Gardner intimated: under the current version of rule
65C, we can only hear a time-barred case, like Patterson‘s, when
failure to do so would violate a petitioner‘s constitutional rights.

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Opinion of the Court
IV. PATTERSON HAS NOT DEMONSTRATED THAT
APPLICATION OF THE RULE 65C TIME BAR TO HIS
CLAIMS VIOLATES HIS CONSTITUTIONAL RIGHTS
¶195 Patterson offers two ways that the application of any
statute of limitations to bar his claims would violate the Utah
Constitution. He first asserts that it would be at odds with precedent
suggesting that imposing any statute of limitation on a habeas
petition is at odds with our constitution‘s Open Courts Clause. See
Julian v. State, 966 P.2d 249 (Utah 1998). He also asserts that it would
violate the Suspension Clause of the Utah Constitution.47
A. Julian v. State and the Open Courts Clause
¶196 Patterson argues that Julian dictates that any statute of
limitations on our writ authority violates the Open Courts Clause of
the Utah Constitution.48
¶197 Julian filed a petition for extraordinary relief eight years
after his conviction. Julian, 966 P.2d at 250. Julian alleged that the
district court had erred by admitting certain evidence and his trial
counsel had provided ineffective assistance. Id. The State moved to
dismiss the petition, arguing that it was untimely under both the
four-year catch-all time bar for civil claims that applies when no
other provision is made in law and the PCRA‘s one year limitations
period. Id. at 250–51. The district court denied the motion, heard the
_____________________________________________________________
47 Patterson also argues that Utah Rule of Civil Procedure 65C
does not apply to his petition for relief under this court‘s
constitutional authority because rule 65C states that it applies to
―petitions for post-conviction relief filed under‖ the PCRA. Although
rule 65C states that it governs PCRA petitions, it also states that the
PCRA sets forth the rules for a person, like Patterson, who
challenges the legality of a conviction after the conviction and
sentence have been confirmed in a direct appeal or the time for such
an appeal has expired. See UTAH R. CIV. P. 65C. In petitioning for
relief under our writ power, Patterson is just such a person; he is
challenging the legality of his conviction after the conviction and
sentence have been confirmed in a direct appeal. Therefore, by its
terms, rule 65C applies to Patterson.
48 The Open Courts Clause states that ―[a]ll courts shall be open,
and every person . . . shall have remedy by due course of law, . . .
and no person shall be barred from prosecuting or defending . . . any
civil cause to which the person is a party.‖ UTAH CONST. art. I, § 11.

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writ, and released Julian from custody. Id. at 252. The State appealed.
Id.
¶198 We upheld the district court‘s decision to not apply the
four-year catch-all statute of limitations. Id. at 253. We stated that
―[a]pplying the catchall statute to bar habeas petitions . . . violates
the Utah Constitution‘s open courts provision.‖ Id. But the entirety of
our Open Courts Clause ―analysis‖ consisted of one sentence. See id.
We quoted Hurst, saying, ―[T]he separation of powers provision,
Article V, Section 1 of the Utah Constitution, requires, and the Open
Courts Provision of the Declaration of Rights, Article I, Section 11,
presupposes, a judicial department armed with process sufficient to
fulfill its role as the third branch of government.‖ Id. (alteration in
original) (quoting Hurst v. Cook, 777 P.2d 1029, 1033 (Utah 1989)).49
¶199 We also upheld the district court‘s decision to apply the
one-year statute of limitation in the PCRA, but to nonetheless hear
the case pursuant to the ―interests of justice‖ exception that the
statute then contained. Id. at 253–54. The State argued that the
district court had abused its discretion by deciding that Julian‘s case
triggered the ―interests of justice‖ exception. Id. at 254. The State
contended that the statutory exception should come into play ―only
under truly exceptional circumstances‖ and that allowing Julian to
invoke that exception would run contrary to the policies of
promoting finality and not requiring the State to litigate stale claims.
Id.
¶200 In the course of concluding that the district court had not
abused its discretion in finding that hearing the writ petition served
the interests of justice, we said, ―Under our reasoning in this case,
proper consideration of meritorious claims raised in a habeas corpus

_____________________________________________________________
49 Patterson also references language from Julian where we noted
that the court of appeals had said that a strict thirty-day statute of
limitation ―remove[d] flexibility and discretion from state judicial
procedure, thereby diminishing the court‘s ability to guarantee
fairness and equity in particular cases.‖ Julian, 966 P.2d at 253
(alteration in original) (citation omitted). Patterson suggests we
found the four-year statute of limitation unconstitutional for the
same reason. This is not clear from Julian, but even if it were, Julian
talked about this principle in the context of preserving the habeas
writ from legislative restrictions. See id. Here, this court has adopted
the statute of limitations so we are not dealing with the separation of
powers problem that preoccupied the Julian court.

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Opinion of the Court
petition will always be in the interests of justice.‖ Id. And we
observed that it ―necessarily follows that no statute of limitations
may be constitutionally applied to bar a habeas petition.‖ Id. This is
the language on which Patterson relies.
¶201 There are two problems with Patterson‘s reliance on Julian.
First, Patterson makes no attempt to reconcile Julian with the rest of
our Open Courts Clause jurisprudence. We have stated that ―[t]o
determine whether legislation violates the Open Courts Clause, we
first look to see whether the legislature has abrogated a cause of
action.‖ Petersen v. Utah Lab. Comm’n, 2017 UT 87, ¶ 20, 416 P.3d 583.
¶202 But we have also suggested that a challenge to a statute of
limitation ―does not pass even the first step of the Open Courts
Clause analysis—the legislature has not ‗abrogated‘ a cause of action
by specifying a reasonable period of time after accrual during which
the cause of action must be asserted.‖ Id. ¶ 9 n.7 (citing Berry ex rel.
Berry v. Beech Aircraft Corp., 717 P.2d 670, 672 (Utah 1985) (―To be
constitutional, a statute of limitations must allow a reasonable time
for the filing of an action after a cause of action arises.‖)). As noted,
Patterson does not apply the Petersen framework to rule 65C‘s time
bar.
¶203 Second, the sweeping language on which Patterson relies
has been overtaken by cases like Winward, in which we upheld the
application of time bars to petitions for extraordinary writs. Once
again, Patterson does not try to square the holding of cases like
Winward with Julian. As such, we cannot accept Patterson‘s
argument that any statute of limitations on a petition for
extraordinary relief violates the Open Courts Clause.
¶204 Simply stated, Patterson has not convinced us that
application of the PCRA/rule 65C time bars to his petition violates
his rights under the Open Courts Clause of the Utah Constitution.
B. Suspension of the Writ
¶205 Patterson also argues that applying the statute of
limitations to his petition would ―violate the suspension clause of the
Utah Constitution because Mr. Patterson has raised serious claims of
constitutional error.‖ But he has not convinced us that the
Suspension Clause of the Utah Constitution either forbids all statutes
of limitations on our writ power nor that the application of the time
bar to Patterson‘s petition violates the Suspension Clause.
¶206 Article I, section 5 of the Utah Constitution provides: ―The
privilege of the writ of habeas corpus shall not be suspended, unless,
in case of rebellion or invasion, the public safety requires it.‖ It is not

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evident from the constitution‘s text what the people of Utah in 1895
would have understood a suspension of the writ of habeas corpus to
mean. This court has not directly addressed the question, and federal
courts have likewise had limited opportunity to review this question
as it pertains to the federal Suspension Clause.50 And the historical
record presently in front of us does not shed much light on the
question either.
¶207 Looking to readily available contemporary sources, we can
see that when the people of the Utah Territory adopted the Utah
Constitution, for something to be ―suspended‖ meant much as it
does now: to stop something, usually temporarily. Dictionaries
published close to the time of statehood define suspend as: ―to cause
to cease for a time; to interrupt temporarily; to intermit; to hold in a
state undetermined; to debar temporarily from some privilege or
office or place held; to stay; to cause to cease for a time from
operation or effect.‖ See Suspend, THE STUDENT‘S ENGLISH DICTIONARY
(1896).51

_____________________________________________________________
50 Our Suspension Clause is nearly identical to the Suspension
Clause of the United States Constitution. See U.S. CONST. art. I, § 9, cl.
2 (―The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.‖). The United States Supreme Court has
recognized that it has had little opportunity to opine on what it
means for the clause to be suspended or the meaning of suspension.
Boumediene v. Bush, 553 U.S. 723, 773 (2008) (―Our case law does not
contain extensive discussion of standards defining suspension of the
writ or of circumstances under which suspension has occurred.‖).
51 See also Suspension, THE STUDENT‘S ENGLISH DICTIONARY (1896)
(defining suspension as ―[t]he act of suspending or state of being
suspended; . . . the act of delaying, interrupting, or stopping for a
time; a cessation of operation; intermission; stoppage; temporary
abeyance; deprivation of office, privileges, or functions for a time‖);
Suspend, WEBSTER‘S ACADEMIC DICTIONARY (1895) (defining
―suspend‖ in relevant part as ―[t]o cause to cease for a time; to
interrupt; to delay; to stay[;] . . . [t]o hold in an undecided state[;] . . .
[t]o debar temporarily from any privilege, execution of an office,
enjoyment of income, etc.‖); Suspension, id. (defining suspension as
the ―temporary delay, interruption, or cessation (of labor, pain,
judgment, opinion, payment, execution of law, etc.)‖).

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¶208 The record of the Utah Constitutional Convention does not
shed much light on the topic either. Almost all of the discussion on
the Suspension Clause revolved around a suggestion that the phrase
―and then only in such manner as shall be prescribed by law‖ be
added to the clause. PROCEEDINGS AND DEBATES OF THE CONVENTION
ASSEMBLED TO ADOPT A CONSTITUTION FOR THE STATE OF UTAH, DAY
18, https://le.utah.gov/documents/conconv/18.htm. The delegates
discussed what this addition would mean for the ability to suspend
the writ, including who could suspend the writ and how that body
would do it. But the entire discussion took place in the context of
suspending the writ during emergencies like ―rebellion or invasion.‖
See id.
¶209 It appears that the framers assumed that, when there is a
rebellion or invasion, the writ could be suspended to permit the State
to hold prisoners captured in that conflict. 52 Indeed, the suspension
was likened to martial law, something that we might need in times of
domestic conflict. Id. Thus, the evidence currently before us suggests
that the Suspension Clause contemplates measures that ―stay,‖
―cause to cease,‖ or ―interrupt‖ the ability of a prisoner to challenge
her detention. But we recognize that we do not have extensive
briefing on the original public meaning of the term ―suspension.‖
¶210 Although the State does not provide much that would
speak to the original public understanding of a suspension, it does
forward persuasive authority for the proposition that a statute of
limitations does not necessarily amount to a suspension of the writ.
For example, several federal circuits have held that a one-year statute
of limitations on habeas petitions does not violate the federal
Suspension Clause. See, e.g., Delaney v. Matesanz, 264 F.3d 7, 12 (1st
Cir. 2001) (noting cases from the Second, Fifth, Tenth, and Eleventh
Circuits that likewise found no suspension clause violation);
Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1217 (11th Cir. 2000);
Miller v. Marr, 141 F.3d 976, 977–78 (10th Cir. 1998).

_____________________________________________________________
52 By way of example, Delegate William Grant Van Horne opined
that the ―object of providing that in those two cases the writ of
habeas corpus may suspend, is that those may be imprisoned who
are secretly giving aid and comfort to the enemy.‖ PROCEEDINGS AND
DEBATES OF THE CONVENTION ASSEMBLED TO ADOPT A CONSTITUTION
FOR THE STATE OF UTAH, DAY 18, https://le.utah.gov/documents
/conconv/18.htm.

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¶211 Several of our sister states also have held that statutes of
limitations do not violate their respective suspension clauses. The
Oregon Supreme Court has said that ―[i]t is [the habeas] system of
judicial inquiry that may not be suspended.‖ Bartz v. State, 839 P.2d
217, 224 (Or. 1992). That court continued, ―[a]ny legal system,
including habeas corpus, requires procedures to implement it. . . .
[S]o long as those procedures are reasonable for persons who seek
redress—they do not offend the state constitutional ban on
suspending habeas corpus.‖ Id.53 The Colorado Supreme Court has
found its statute of limitations on habeas petitions constitutional
because it does not ―den[y] persons an adequate avenue of relief.‖
People v. Wiedemer, 852 P.2d 424, 435 (Colo. 1993).54 And in
Pennsylvania, the superior court has reasoned that its statute of
limitation, which is similar to ours, does not suspend the writ
because the ―[petitioner] had the opportunity to exercise his right to
petition for writ of habeas corpus, but simply failed to do so in a timely
fashion.‖ Commonwealth v. Zuniga, 772 A.2d 1028, 1032 (Pa. Super. Ct.
2001).55 While the decisions of other courts do not dictate the
interpretation of our constitution, they certainly cause us to stop
before we would presume to declare that any statute of limitations
violates the Suspension Clause.
¶212 In the end, Patterson‘s argument regarding the original
public meaning of the Suspension Clause is too bare for us to engage
in serious constitutional interpretation. Simply stated, Patterson has
not convinced us that the flexible one-year statute of limitations to
file a post-conviction writ amounts to a suspension of the writ of
habeas corpus. But we leave open the possibility that another
petitioner, on another set of facts, might be able to demonstrate that
the application of the time bars in the PCRA and rule 65C run afoul
_____________________________________________________________
53 Article I, section 23 of the Oregon Constitution states that the
―privilege of the writ of habeas corpus shall not be suspended unless
in case of rebellion, or invasion the public safety require it.‖
54Article II, section 21, of the Colorado Constitution provides that
the ―privilege of the writ of habeas corpus shall never be suspended,
unless when in case of rebellion or invasion, the public safety may
require it.‖
55 Article I, section 14 of the Pennsylvania Constitution states, in
part, that ―the privilege of the writ of habeas corpus shall not be
suspended, unless when in case of rebellion or invasion the public
safety may require it.‖

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Opinion of the Court
of the Suspension Clause, or some other provision, of the Utah
Constitution.
V. PATTERSON‘S CLAIMS FOR RELIEF
BASED ON NEW EVIDENCE
¶213 Finally, Patterson argues that two of his claims are timely
under the PCRA. Under section 78B-9-107(2)(e) of the Utah Code, a
claim may accrue on ―the date on which petitioner knew or should
have known, in the exercise of reasonable diligence, of evidentiary
facts on which the petition is based.‖ Patterson claims that grounds 4
and 5 of his amended petition are based on new evidence.
¶214 Ground 4 alleges that Patterson‘s trial counsel was
ineffective for failing to offer expert evidence of faulty interviewing
techniques. And he claims that the new evidence that supports this
claim comes from an expert he recently retained.
¶215 Ground 5 alleges that Patterson‘s trial counsel was
ineffective for failing to investigate and locate impeachment
evidence. Patterson avers that he has now found a document that
would impeach a critical witness against him and claims his trial
counsel should have found this document.
¶216 Patterson argues that he could not reasonably have
discovered this evidence until the federal court appointed his current
counsel. And because his counsel filed this petition within one year
of having uncovered these new facts, Patterson argues that his
claims based upon this evidence are timely filed under the PCRA.
¶217 Patterson raised these arguments in response to the State‘s
motion for summary judgment, but the district court did not rule on
them. We therefore remand to the district court to address them in
the first instance without offering comment on the strength or
weakness of these contentions.
CONCLUSION
¶218 The writ of habeas corpus is an important tool that the
people of Utah enshrined in the state constitution for their protection.
And the people of this state have entrusted the courts with the
authority to hear those entreaties. But we adopted Utah Rule of Civil
Procedure 65C, which mirrors the PCRA, to regulate that authority,
and Patterson‘s petition fails at its hands. To convince us to hear a
petition that rule 65C and the PCRA bar, Patterson would need to
demonstrate that failure to entertain his petition violates his
constitutional rights. Patterson has failed to make that showing. We
affirm the dismissal of the petition except as to the two claims for
relief that are based on evidence Patterson argues is newly
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discovered. The district court did not address those arguments, so we
remand to the district court for consideration of those two claims.

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
¶219 Scott Kirby Patterson filed a post-conviction challenge to
his convictions of child sex abuse and other offenses. His petition
was dismissed as time-barred under the Post-Conviction Remedies
Act (PCRA)—an exclusive framework for post-conviction review not
only enacted by our legislature, see UTAH CODE § 78B-9-102(1)(a), but
also endorsed by this court in our rules governing the procedural
grounds for such review, see UTAH R. CIV. P. 65C. Patterson
challenges the dismissal of his petition on this appeal, asserting that
the time bar in the PCRA (and reinforced in rule 65C) should be
subject to tolling, his untimeliness should be excused under a
common-law ―egregious injustice‖ exception, and the operative time
bar runs afoul of the open courts clause and the suspension clause of
the Utah constitution.
¶220 The majority appropriately affirms the dismissal of
Patterson‘s petition. It does so, moreover, on a range of grounds that
I endorse: (1) Patterson‘s claims are time-barred under the
controlling provisions of the PCRA and civil rule 65C and are not
saved by any principle of tolling,56 see supra ¶¶ 34–65; (2) there is no

_____________________________________________________________
56 Though I agree with the court‘s ultimate decision on this point,
I would not affirm the district court on the ground that attorney
Wall‘s legal advice was not deficient. See supra ¶¶ 44–48. The actions
of an individual who is neither paid nor employed by the state (but
rather retained by Patterson) cannot constitute ―state action in
violation of the United States Constitution‖ that ―prevented
[Patterson] from filing‖ his petition. See UTAH CODE § 78B-9-
107(3)(a). The federal courts recognize that even a public defender
doesn‘t constitute a state actor for tolling purposes. See Polk Cnty. v.
Dodson, 454 U.S. 312, 318 (1981) (―[A] lawyer representing a client is
not, by virtue of being an officer of the court, a state actor . . . within
the meaning of § 1983.‖); Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677,
679 (5th Cir. 1988) (―[P]rivate attorneys, even court-appointed
attorneys, are not official state actors. . . .‖). And Wall was
Patterson‘s agent—not some third-party actor. So Wall‘s actions
could not amount to ―state action‖ that ―prevented‖ Patterson from
filing a petition.

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common-law ―egregious injustice‖ exception available to Patterson
under the PCRA or rule 65C—under our law as it stands, we can
hear a time-barred case only ―when failure to do so would violate a
petitioner‘s constitutional rights,‖ supra ¶ 194; and (3) Patterson has
failed to establish that application of the time-bar provisions in our
law violates his constitutional rights under the open courts and
suspension clauses of the Utah Constitution, supra ¶¶ 195–212.
¶221 I concur in the judgment of the court and in these central
elements of the majority opinion. I write separately, however, to
express my objection to other elements of the opinion that are
unnecessary to our decision and are unsupported by the majority‘s
analysis in any event.
¶222 Most of the difficulty comes in Part II of the majority
opinion. There the court begins with the observation that our courts
have constitutionally guaranteed ―original jurisdiction‖ over
―extraordinary writs‖ that may not be abrogated by the legislature.
See supra ¶¶ 76–80. That much is uncontroversial. But the court takes
that premise as establishing a much broader proposition. It
concludes that the legislature lacks the power to enact any
―substantive[]‖ restrictions on the writs that fall within our original
jurisdiction and is limited to amending the ―procedural‖ rules
adopted by the courts. See supra ¶¶ 146, 157–60.
¶223 The majority stops short of defining the scope of the
―substantive‖ or ―procedural‖ powers that it reserves for the courts.
It never announces a standard for evaluating the legislature‘s
authority in this field. And it never applies any constitutional
standard to an actual provision of the PCRA at issue in this case. Yet
the court nonetheless breaks significant, new constitutional ground
in its opinion—in suggesting that the legislature has exceeded the
bounds of its constitutional authority in enacting the PCRA, by a
―substantive‖ regulation of an extraordinary writ or an improper
attempt to amend our ―procedural‖ rules in this field. See supra ¶ 160
n.35 (concluding that ―the Legislature cannot, consistent with the
Utah Constitution, replace the writ with a statutory remedy‖); supra
¶ 168 (stating that ―the Legislature exercises a function that
appertains to the Judiciary when it attempts to place substantive
restrictions on the writ‖).
¶224 I object to this portion of the court‘s opinion on two
grounds. First, I find these aspects of the court‘s constitutional
analysis premature and unnecessary to our decision in this case.
There is currently no provision of the PCRA that has any
independent effect on post-conviction writs, and thus no basis for

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this court to opine on the constitutionality of any such enactment.
This is clear from the fact that this court‘s own rules have long
incorporated the PCRA as establishing ―the manner and extent to
which a person may challenge the legality of a criminal conviction
and sentence after the conviction and sentence have been affirmed in
a direct appeal . . . or the time to file such an appeal has expired.‖
UTAH R. CIV. P. 65C(a). The point is also underscored by the scope of
the majority‘s analysis. The court is not expressly opining on the
constitutionality of any provision of the PCRA because there is no
provision that even arguably has an independent effect on the
court‘s power to hear the merits of Mr. Patterson‘s petition for
extraordinary writ. And that renders the court‘s constitutional
analysis premature and unnecessary.
¶225 Second, the court‘s new standard does not follow from its
simple premise. Under the plain language of the constitution and
our case law interpreting it, the constitutional prescription of our
courts‘ jurisdiction to issue extraordinary writs is a limitation on the
legislative power. But the limitation is simply a bar to the legislative
restriction or expansion of our courts‘ jurisdiction to issue
extraordinary writs. It is not the elimination of the legislature‘s
power to adopt ―substantive‖ limitations on claims that fall within
that jurisdiction. This is clear from the text of the constitution, from
case law interpreting it, and from longstanding, settled practice.
I
¶226 This is not the right case for our court to be opining on the
scope of the legislature‘s constitutional power to regulate our courts‘
original jurisdiction over an extraordinary writ. That is so because
the majority‘s analysis has no impact on any of Patterson‘s claims or
on any independently operative provision of the PCRA. The court‘s
constitutional analysis runs afoul of the doctrine of ripeness and the
principle of constitutional avoidance.
A
¶227 Our law as it stands today includes our judicial
incorporation of the terms and conditions of the PCRA in civil rule
65C. See UTAH R. CIV. P. 65C(a) (stating that ―the Post-Conviction
Remedies Act, Utah Code Title 78B, Chapter 9 . . . . sets forth the
manner and extent to which a person may challenge the legality of a
criminal conviction and sentence after the conviction and sentence
have been affirmed in a direct appeal . . . or the time to file such an
appeal has expired‖). And the consilience of legislative and judicial
standards for post-conviction writs makes it unnecessary for us to

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decide today what the constitution might portend if and when the
legal landscape changes.
¶228 If and when either the PCRA or rule 65C are amended in a
manner that establishes a conflict, then there will be a need for us to
decide on the constitutional implications of such conflict—on
whether and to what extent our constitutional jurisdiction over
extraordinary writs forecloses legislative power to regulate the
substantive elements of and defenses to claims for extraordinary
writs in a manner that differs from the standards endorsed by the
judiciary.
¶229 But that question is simply unripe under our law as it now
stands. There is no current ―conflict over the application of a legal
provision‖ that ―has sharpened into an actual or imminent clash of legal
rights.‖ See Metro. Water Dist. of Salt Lake & Sandy v. Sorf, 2019 UT 23,
¶ 10, 445 P.3d 443 (citation omitted). All we have is ―a difference of
opinion regarding the hypothetical application of a provision to a
situation in which the parties might, at some future time, find
themselves.‖ See id. (citation omitted) And that renders the
constitutional question resolved by the court in Part II.C. of its
opinion unripe, and not properly presented for our review. See id.
¶230 The legislative restrictions of the PCRA, in other words, are
not currently restricting Patterson‘s access to post-conviction relief.
Because the PCRA is mirrored in rule 65C, rule 65C itself establishes
the time-bar to Patterson‘s claims.57 The majority effectively
acknowledges this point. When it gets around to deciding whether
Patterson has a viable constitutional challenge to the operation of the
one-year time-bar, the majority assesses the constitutionality of the
PCRA as incorporated in rule 65C—upholding the rule against the
constitutional challenges raised by Patterson under the open courts
and suspension clauses of the Utah constitution. See supra ¶¶ 194–
212.
¶231 It is true, as the majority notes, that the parties‘ briefs
addressed questions related to the scope of the legislature‘s power in
this field. Patterson argued that ―the Legislature does not have the
_____________________________________________________________
57 Patterson‘s district court petition admittedly sought relief
under both the PCRA and under the district court’s constitutional
authority. See supra ¶ 12. But that is of no consequence under a legal
regime in which the district court‘s power to issue an extraordinary
writ is regulated by rule 65C—a rule that embraces and incorporates
the terms of the PCRA.

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power to place substantive restrictions on his constitutional right to
ask this court for a writ.‖ Supra ¶ 74 n.12. And the State responded
with an argument that the Legislature has the authority to
substantively limit Patterson‘s right to petition for a writ—and did
so through the PCRA. Supra ¶ 74 n.12. But the majority resolves this
case on grounds that render these arguments immaterial. It rejects
Patterson‘s position on the ground that under rule 65C, the courts
have exercised any independent writ power we may possess ―in
total harmony with the PCRA.‖ Supra ¶ 174. And the majority fails to
identify any effect that its analysis of the legislature‘s authority to
substantively regulate the writ may have on any aspect of this case,
let alone on Patterson‘s right to petition for a writ.
¶232 It is not just that we can resolve the parties‘ claims without
opining on the legislature‘s constitutional authority to place
substantive limitations on the writ. It is that we actually do so here.
This is evident in the fact that the court fails to apply its analysis of
the legislature‘s authority to any provision of the PCRA (or any
other legislation) or to any claim advanced by Patterson on this
appeal.
¶233 Part II.C. of the court‘s opinion is framed as an abstract
statement of law divorced from the disposition of any particular
claim before the court. It is an articulation of a set of constitutional
principles in the abstract, divorced from any application to any
provision of the PCRA.
¶234 We need not and should not decide whether the
legislature has the power to enact substantive restrictions on post-
conviction writs that differ from our judicial restrictions. Such a
decision is unripe so long as our court rules remain in lockstep with
legislative restrictions.
B
¶235 In resolving the question of the legislature‘s power to alter
substantive standards adopted by the judiciary, the court also runs
afoul of the principle of constitutional avoidance. This principle
states that we ―will not pass upon a constitutional question although
properly presented by the record, if there is also present some other
ground upon which the case may be disposed of.‖ State v. Argueta,
2020 UT 41, ¶ 55, 469 P.3d 938 (citation omitted). We recently
emphasized the importance of such avoidance of any unnecessary
―venture into murky [constitutional] waters.‖ Id. In recognition of
the ―‗great gravity and delicacy‘ of constitutional questions,‖ we
noted that our cases ―have gone so far . . . as to assert that it is ‗our
obligation to avoid addressing constitutional issues unless required

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LEE, A.C.J., concurring in part and in the judgment
to do so‘‖—a standard we committed to follow unless and until we
reconsider it in a future case (―with the able assistance of counsel
and cautiously‖).58 Id. ¶ 55 & n.14 (citations omitted).
_____________________________________________________________
58 I wrote separately in State v. Argueta, acknowledging that we
could resolve the case on harmless error grounds but indicating that
I would have resolved a question on which we granted certiorari—
on ―whether the court of appeals erred in concluding that Argueta‘s
Fifth Amendment rights were not violated when the prosecutor
sought to impeach his credibility by highlighting ‗exculpatory
details‘ that Argueta mentioned at trial but omitted in earlier
statements to police.‖ 2020 UT 41, ¶ 76, 469 P.3d 938 (Lee, A.C.J.,
concurring in part and concurring in the judgment). In so doing, I
explained that this was an ―important question‖ with a
―straightforward answer in controlling precedent of the United
States Supreme Court and in a governing decision of this court.‖ Id.
And I expressed my disagreement with the majority‘s view of
constitutional avoidance, noting that such ―avoidance makes sense
when we are resolving a case on a statutory or other alternate
ground while declining to break new constitutional ground.‖ Id.
¶ 83. Because we had ―already broken the constitutional ground at
issue‖ in a prior decision, I suggested that it was ―not an act of
restraint or judicial ‗humility‘‖ to issue a majority opinion that
openly questioned that decision—as the majority did in Argueta. Id.
¶¶ 83–84.
My position here is fully compatible with the approach I took in
Argueta. But see supra ¶ 71 n.10 (suggesting otherwise). The problem
here is that the court is reaching out to assess the legislature‘s
constitutional power to enact a statute that currently has no
freestanding, independent effect. We faced no such hurdle in
Argueta. Yet the Argueta majority nonetheless reinforced the notion
of an ―obligation‖ to avoid constitutional questions. See Argueta, 2020
UT 41, ¶ 55 n.14. And that notion is incompatible with the majority‘s
decision today.
This inconsistency is not averted by the observation that we all
agree that ―we should address some of the constitutional questions
the parties have placed before us.‖ Supra ¶ 71 n.10 (emphasis added).
The question is not whether we should address some of the
constitutional questions briefed by the parties. It is whether we
should address the constitutional power of the legislature to enact a
statute that has no freestanding, independent effect under our law as
it stands today. We should not.

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¶236 The majority is overriding these principles in its decision
today. We can resolve this case without going out of our way to
opine on the constitutional implications of a conflict between the
PCRA and rule 65C. See supra ¶ 224. These are grave, delicate
questions. And the court is passing on them in a case in which they
are not directly implicated.59
¶237 The majority resists this conclusion on the ground that
Patterson‘s constitutional arguments are a ―backstop to his statutory
and common law claims.‖ Supra ¶ 71. It asserts that we can avoid
Patterson‘s constitutional claims only if we rule in Patterson‘s favor
―on his statutory or common law arguments.‖ Supra ¶ 71. Because
_____________________________________________________________
59 My position here is consistent with the one I took in my
concurring opinion in State v. Walker, 2011 UT 53, 267 P.3d 210. In
Walker I did not suggest that the court should always reach all
constitutional questions that are briefed and available for resolution,
as the majority implies. See supra ¶ 70. Instead, I acknowledged that
the principle of constitutional avoidance is a presumption against
reaching constitutional questions that are unnecessary to our
decision, while noting that the presumption ―is rebuttable in cases
where specific reasons exist for offering broader guidance.‖ See
Walker, 2011 UT 53, ¶ 66 (Lee, A.C.J., concurring) (internal quotation
marks omitted).
In Walker I did not ―chid[e] th[e] court for failing to reach‖ the
constitutional question that I addressed in my concurrence. Supra
¶ 70. I concurred in the majority opinion in full and indicated that I
could understand the majority‘s decision not to reach the
constitutional question that I proposed to analyze. See Walker, 2011
UT 53, ¶¶ 27, 62 (Lee, A.C.J. concurring). Yet I also identified a range
of reasons for my determination nonetheless to do so—noting that
the majority was already resolving the dispute on a constitutional
ground, and explaining why I thought it important to clarify the law
on an additional, related ground before it ―could become so
ingrained in our jurisprudence that its reconsideration would be
difficult.‖ Id. ¶¶ 59, 61, 62.
I am applying this same framework here. I am just coming to a
different conclusion on whether the presumption of avoidance is
rebutted in this instance. The constitutional question at issue here is
quite different from the one I proposed to reach in Walker. This is not
a question that has been previously opined on and is becoming
―ingrained in our jurisprudence.‖ It is a new question that has not
been presented previously and is not necessary to our decision.

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the majority ―conclude[s] that Patterson‘s statutory and common law
arguments fail,‖ it states that it ―must examine whether the
constitution affords him any remaining form of redress.‖ Supra ¶ 71.
And it goes so far as to suggest that I am not ―really advocat[ing] for
constitutional avoidance,‖ but arguing only for avoidance of ―the
constitutional questions‖ that I ―disagree[] with‖—as even I endorse
the court‘s conclusion ―that there is no egregious injustice exception
to the time-bars of the PCRA or rule 65C,‖ and agree ―that Patterson
has not convinced us that those time-bars violate the Utah
constitution‘s Open Courts Clause or Suspension Clause.‖ Supra
¶¶ 71–72.
¶238 The majority is half right. As noted above, I am not
objecting to every point of constitutional analysis in the majority
opinion. I agree, as the court notes, with the conclusion that there is
no constitutional basis for the court to override the ―time-bars of the
PCRA or rule 65C‖ under an ―egregious injustice exception‖ or ―the
Utah constitution‘s Open Courts Clause or Suspension Clause.‖
Supra ¶¶ 71–72; see also supra ¶¶ 220–21 (noting my concurrence in
those aspects of the majority opinion). But my concurrence on these
points is not an indication that I don‘t ―really advocate for
constitutional avoidance,‖ or endorse it only for ―the constitutional
questions [I] . . . disagree[] with.‖ Supra ¶ 72. It is an indication that I
accept that we must address constitutional questions that are
required for our resolution of the case before us, and advocate
avoidance of constitutional questions that are not necessary.
¶239 I thus concur in the court‘s determination that there is no
open courts or suspension clause basis for overriding that time bar.
But that is not just because I agree with the court‘s analysis on these
points. It is because this analysis is necessary to our resolution of this
case. Our law as it now stands includes a judicially imposed time bar
on a claim for post-conviction review—under rule 65C, which
incorporates the terms and conditions of the PCRA. And we thus
cannot resolve this case without deciding whether the time bar
established under this law runs afoul of the open courts or
suspension clause.
¶240 The constitutional analysis that I oppose goes beyond the
questions that form the necessary ―backstop‖ to Patterson‘s statutory
and common law claims. After rejecting Patterson‘s constitutional
grounds for challenging the ―time bars of the PCRA or rule 65C,‖
and determining that rule 65C ―governs the exercise of‖ our ―writ
power independent of the PCRA,‖ this court has no need to make a
further decision on whether the legislature has any broader
constitutional power (under article VIII) to regulate the ―substance‖
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of limitations on the ―writ power‖ as adopted by this court.60 See
supra ¶¶ 71, 143–45, 174. The limitations adopted by the court are
currently in line with those adopted by the legislature—and have
_____________________________________________________________
60 The majority makes a clever turn of phrase with the charge that
I am ―play[ing] Jenga with the [majority] opinion.‖ Supra ¶ 74. But
the metaphor masks a misunderstanding of my position. I am not
proposing to arbitrarily ―pull[] out a couple of conclusions‖ from the
governing constitutional analysis and ―hop[e] that the tower still
stands in the end.‖ Supra ¶ 74. I am identifying independent strands
of the court‘s constitutional analysis, and asserting that we should
resolve only the ones that are necessary to our decision.
The constitutional points that I concur in stand on their own
footing and are essential to the court‘s disposition of this case. The
points I disagree with are analytically independent, and unnecessary
unless and until some tension arises between the PCRA and rule
65C.
Patterson‘s ―egregious injustice,‖ open courts, and suspension
clause arguments are challenges to our law as it stands today—to
rule 65C, which incorporates the PCRA. For that reason, we must
resolve these claims in order to dispose of this case. The challenge to
the legislature‘s power to override judicial limitations on
constitutionally guaranteed writs is different. This challenge is not
necessary to our decision because it is a challenge that arises only if
and when there is a disagreement between the court and the
legislature on the operative limits on the issuance of an
extraordinary writ. Such disagreement has not yet arisen; it is
avoided by the longstanding consilience between the PCRA and rule
65C.
The majority insists that it ―cannot persuasively explain to
Patterson that the Utah Constitution offers him no relief‖ without
―explaining the source and scope of the writ power the Utah
constitution authorizes.‖ Supra ¶ 74. But the court‘s opinion proves
otherwise. The court‘s analysis of the constitutionality of the time bar
provision incorporated into rule 65C has nothing to do with the
legislature‘s regulatory power in this field. It turns entirely on
questions arising under the open courts and suspension clauses. See
supra ¶¶ 195–212. And the court is nowhere addressing the
constitutionality of any other provision of the PCRA. No other
provision of the PCRA has any independent effect on Patterson. That
renders the majority‘s analysis premature and unnecessary to
today‘s decision.

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been for decades. Unless and until that changes, there is no need for
our court to go out of our way to opine on the extent of that power.
Principles of ripeness and constitutional avoidance counsel against
it.61
II
¶241 The above-stated concerns are a sufficient basis for my
disagreement with Part II.C. of the majority opinion. Ordinarily, I
would leave the matter there—standing only on my observation that
the court‘s constitutional analysis is unnecessary to its disposition of
this case. I write further, however, because I am unconvinced by the
premises of the majority‘s analysis of the merits and deem it

_____________________________________________________________
61 The majority is right to address the constitutional question that
this court sidestepped in Winward v. State, 2012 UT 85, 293 P.3d
259—as to the nature and extent of any constitutional basis for an
―egregious injustice‖ exception to the time-bar provisions in the
PCRA and rule 65C. I wrote separately in Winward to highlight the
need for analysis of this constitutional question—explaining that our
application of any exception required clarification of what counted
as an ―egregious injustice,‖ and noting that we could not make any
clarification without first identifying a legal basis (in the
constitution) for such exception. Id. ¶ 43 (Lee, A.C.J., concurring)
(―We cannot defensibly find such an exception unsatisfied without
describing its content, and we cannot describe its content without
articulating its basis in law.‖) The court today rightly reaches the
same conclusion, and correctly concludes that there is no basis in the
Utah Constitution for an ―egregious injustice‖ exception to the time
bars set forth in the PCRA and rule 65C. See supra Part III.
I am thus on board with the majority opinion to this extent of its
constitutional analysis. But my vote here is fully in line with my
position in Winward. As explained above, I am not contending that
we can or should avoid constitutional questions that are necessary to
our decision. And I am thus not advocating for the kind of
―constitutional avoidance‖ referred to by the majority—if that form
of avoidance means ―decid[ing] this case the way‖ the majority
decided Winward. See supra ¶ 72 (suggesting that this is where my
position would take us). I am just advocating the avoidance of
questions that are not implicated under our law as it stands today—
and will not be unless and until the longstanding consilience
between the PCRA and rule 65C is eliminated by the legislature or
by this court.

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important to present a full rebuttal (in the interest of transparency of
the views of members of this court).
¶242 The majority cites both textual and case-based support for
its conclusion that the legislature lacks ―substantive‖ power to
regulate the terms of a writ and is limited to amending ―procedural‖
rules adopted by the courts. Supra ¶¶ 159–62. But the cited text and
case law are insufficient to establish a basis for the court‘s holding.
Both sources simply foreclose the legislature from restricting or
expanding our courts‘ ―jurisdiction‖ to issue extraordinary writs.
A
¶243 The language and structure of article VIII, section 3 of the
Utah Constitution admittedly draw a distinction between this court‘s
power to exercise ―appellate jurisdiction‖ and its authority to issue
―extraordinary writs.‖ As the majority notes, only the former power
is expressly subject to legislative restriction. See supra ¶ 146. Our
court thus exercises ―appellate jurisdiction‖ only ―as provided by
statute.‖ UTAH CONST. art VIII, § 3. But we have ―original jurisdiction
to issue all extraordinary writs‖—with no mention of any legislative
authority of restriction. Id.
¶244 For that reason I agree with the majority that the
constitution implies a distinction between our exercise of ―appellate
jurisdiction‖ and our power of ―original jurisdiction‖ to issue
―extraordinary writs.‖ See supra ¶¶ 146 & n.30 (concluding that ―the
omission of ‗as provided by statute‘ . . . was intentional‖). The
legislature retains power to limit our ―appellate jurisdiction‖ but not
our ―original jurisdiction‖ to issue ―extraordinary writs.‖
¶245 To this extent the majority and I are on the same page.
―[T]he people of Utah gave the Legislature power to define when the
Supreme Court can exercise its appellate jurisdiction‖ but ―did not give
the Legislature the same ability when it came to‖ our exercise of
original jurisdiction over extraordinary writs. Supra ¶ 146 n.30
(emphasis added). This follows from the expressio unius canon of
interpretation—the settled idea that the ―expression of one term or
limitation is understood as an exclusion of others.‖ State v.
Wadsworth, 2017 UT 20, ¶ 7, 393 P.3d 338 (quoting Nevares v. M.L.S.,
2015 UT 34, ¶ 31, 345 P.3d 719). Here, the expressed term or condition
is that the legislature has only the power to ―define when the
Supreme Court can exercise its appellate jurisdiction.‖ Supra ¶ 146
n.30. In context, that clearly implies that it may not exercise such
power over our ―original jurisdiction‖—in restricting or expanding
our court‘s power over cases within our original jurisdiction, or in
exercising its own jurisdiction over such cases.

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¶246 I thus agree that we should credit the ―words of th[e]
constitution‖ as chosen ―with care.‖ Supra ¶ 146. And I likewise
agree that the words of article VIII, section 3 give the legislature the
power to determine how our ―appellate jurisdiction‖ is ―to be
exercised‖—and clearly imply that the legislature lacks such power
over our original jurisdiction.
¶247 I cannot agree, however, with the proposition that the
constitution therefore forecloses the legislature‘s power to adopt any
―substantive‖ limits on the scope of a writ, supra ¶ 144, or confines it
to amending our ―procedural‖ rules in this field, supra ¶ 169. I do not
see how that follows from the text and structure of the Utah
Constitution. If and when we are called upon to interpret these
provisions of article VIII, I would be inclined to hold that the
legislature is foreclosed only from abrogating or expanding our
―original jurisdiction‖ to issue extraordinary writs. With this in
mind, I would be inclined to conclude that the operative
constitutional question is whether a given legislative enactment
amounts to an abrogation or expansion of our original jurisdiction,
not whether it was in some sense ―substantive‖ or ―procedural.‖
¶248 In my view, this approach credits the language of article
VIII, section 3, is consistent with historical practice and with the
examples cited by the majority, and is reinforced by the provision of
the Utah Constitution that speaks directly to the writ at issue here—
the suspension clause of article I, section 5, which guarantees that the
writ of habeas corpus ―shall not be suspended.‖62 UTAH CONST. art. I,
§ 5.
1
¶249 The precise words of the Utah Constitution are an
important starting point. They state that this court has the ―original
jurisdiction to issue all extraordinary writs and to answer questions
of state law certified by a court of the United States.‖ UTAH CONST.
art. VIII, § 3; see also id. art. VIII, § 5 (providing that the district court

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62 The majority is of course free to establish its own view of the
correct reading of the Utah Constitution. But it is in no position to
claim that I have ―point[ed] to nothing in the constitutional language
that even hints at‖ my interpretation. Supra ¶ 148. Most everything
that follows is rooted in the text and structure of the constitution.
And much of my textual analysis stands unrefuted in the majority
opinion.

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shall have ―power to issue all extraordinary writs‖). This jurisdiction
is constitutionally guaranteed and immune from legislative
limitation. That is clear from a parallel provision stating that this
court has ―appellate jurisdiction over all other matters to be exercised
as provided by statute.‖ Id. art. VIII, § 3 (emphasis added); see also id.
art. VIII, § 5 (providing that the district court‘s other ―original
jurisdiction‖ is ―as limited by this constitution or by statute‖ and its
―appellate jurisdiction‖ is ―as provided by statute‖). The limitation
on legislative power is implied, but clear: the legislature has power
to limit our ―appellate jurisdiction‖ but not our ―original
jurisdiction.‖
¶250 Our ―appellate jurisdiction‖ involves the power to review
decisions in cases heard in the first instance by a lower court. See
Jurisdiction, BLACK‘S LAW DICTIONARY (11th ed. 2019) (defining
―appellate jurisdiction” as ―[t]he power of a court to review and
revise a lower court‘s decision‖). In a case before us on appeal, we
are limited to a review for error of the decision of a lower court—on
the record developed below, and under established standards of
review.63 Our ―original jurisdiction‖ is distinct. It involves the power
to hear a case filed in our court in the first instance—to make our
―own determination of the issues‖ based on evidence submitted to
us and to make our own disposition of factual and legal questions in
the first instance. State v. Johnson, 114 P.2d 1034, 1037 (Utah 1941),
overruled in part on other grounds by Boyer v. Larson, 433 P.2d 1015
(Utah 1967). In a case before us in our original jurisdiction, we are
not ―[]concerned or limited by any prior determination, or the action
of any other court juridically determining the same controversy.‖ Id.;
see also supra ¶¶ 80 & nn.14–15 (defining original jurisdiction as the
power to resolve cases in the first instance).

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63 See Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 (explaining that
―an appellant must allege the lower court committed an error that
the appellate court should correct‖ or else the lower court will be
―beyond the reach of further review‖); State v. Pliego, 1999 UT 8, ¶ 7,
974 P.2d 279 (―An appellate court's ‗review is . . . limited to the
evidence contained in the record on appeal‘‖) (alteration in original)
(quoting Wilderness Bldg. Sys., Inc. v. Chapman, 699 P.2d 766, 768
(Utah 1985)); Sawyer v. Dep’t of Workforce Servs., 2015 UT 33, ¶¶ 9–14,
345 P.3d 1253 (identifying standards of appellate review applied by
this court).

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¶251 The constitutional guarantee of our ―original jurisdiction‖
is thus the reservation of judicial power ―to issue all extraordinary
writs‖ in the exercise of that power—to make our ―own
determination‖ of the issues on a claim for an extraordinary writ,
and not just on appeal from a decision by a lower court. By clear
implication, the legislature has the power to limit only our
―appellate jurisdiction‖ (and certain other exercises of original
jurisdiction by the district courts).64 It may not restrict or expand the
scope of our ―original jurisdiction‖ as guaranteed by the
constitution—which includes our power to ―issue all extraordinary
writs.‖
¶252 In an appropriate case, I would thus be inclined to agree
with the majority to the extent it is asserting that the legislature is
foreclosed from expanding or stripping the ―original jurisdiction‖ of
our courts in this field. But that is not the premise of the court‘s
analysis. The court is establishing a different proposition. It is
holding that the courts have exclusive power to regulate the
―substantive‖ scope of an extraordinary writ, and the legislature is
limited to amending the ―procedural‖ rules adopted by this court in
this field. See supra ¶¶ 144, 160.

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64 The legislature has long exercised the power to regulate this
court‘s exercise of appellate jurisdiction. See UTAH CODE § 78A-3-
102(3) (identifying categories of cases over which this court is to
exercise ―appellate jurisdiction‖); id. § 78A-3-102(4) (authorizing this
court to ―transfer to the Court of Appeals any of the matters over
which‖ it has ―appellate jurisdiction‖ except those falling in certain
categories of cases); id. § 78A-4-103(2) (prescribing specific categories
of cases over which the court of appeals has ―appellate jurisdiction‖);
id. § 78A-4-103(3) (authorizing the court of appeals to ―certify to the
Supreme Court for original appellate review and determination any
matter over which the Court of Appeals has original appellate
jurisdiction‖); id. § 78A-3-102(5) (establishing this court‘s ―sole
discretion in granting or denying a petition for writ of certiorari for
the review of a Court of Appeals adjudication‖ and authority to
―review those cases certified‖ to us by the court of appeals). It has
not generally sought to limit or expand our original jurisdiction,
however. The above-cited statutes, in fact, expressly preserve this
court‘s ―original jurisdiction to answer questions of state law
certified by a court of the United States‖ and ―to issue all
extraordinary writs.‖ Id. § 78A-3-102(1)–(2).

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¶253 The court has failed to connect its holding to the text and
structure of the Utah Constitution. It has also stopped short of
defining the proposed line between ―substance‖ and ―procedure‖ in
this field. And it has thereby cast a vague constitutional cloud over
the PCRA without giving the legislature or the lower courts any
indication of the scope of the supposed problem.
¶254 This is problematic. If we are going to cast a cloud of
unconstitutionality over an enactment of the legislature, we should
do so in a case in which we are analyzing the constitutionality of a
specific statutory provision that is affecting the interests of the
parties before the court. And in presenting our constitutional
analysis, we should articulate a constitutional standard that can
guide the legislature and the lower courts in future proceedings.
¶255 Such standard should be based in the text and structure of
the constitution. It should clarify that the constitutional limits on the
legislature‘s power do not foreclose it from exercising ―substantive‖
power, or limit it to amendments of rules adopted by the courts
through exercise of our ―procedural‖ power, but instead simply
foreclose the legislature from abrogating or expanding our original
jurisdiction.
2
¶256 The majority‘s contrary holding runs afoul of a well-
established background premise—that the power of the Utah
Legislature is presumptively plenary. See UTAH CONST. art. VI, § 1.
This premise has deep roots in our precedent. Since at least Kimball v.
Grantsville City, the court has recognized that the ―state‖ has
―committed its whole lawmaking power to the legislature‖—the
―plenary power for all purposes of civil government‖—‖excepting
such as is expressly or impliedly withheld by the state or federal
constitution.‖ 57 P. 1, 4 (Utah 1899). In the absence of a constitutional
limitation on the legislature‘s power, the legislature thus retains the
authority to regulate the elements of and defenses to claims that fall
within our courts‘ jurisdiction. See Norton v. Macfarlane, 818 P.2d 8, 17
(Utah 1991) (―Judicial power to alter, abolish, and create causes of
action does not, of course, restrict the right of the Legislature to have
the last word with respect to tort law.‖).
¶257 Our courts admittedly have long exercised common law
habeas power—in a body of case law tracing back to our Utah
founding, which has evolved over the ensuing decades. See supra
¶¶ 109–22 (discussing these cases). But the existence of such
common-law power of the courts is not an indication that the
legislature lacks power to amend or revise the substantive elements

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of common-law claims. That is not how the interplay between the
common law and legislation works. To the contrary, the
longstanding presumption is that the common-law power of our
courts is subject to substantive alteration by the legislature. See
Norton, 818 P.2d at 17.
¶258 The constitutional prescription of this court‘s original
jurisdiction forecloses the legislature from restricting or expanding
that jurisdiction. But it by no means eliminates the legislature‘s
power to refine the elements of and defenses to claims that come
before us in the exercise of that jurisdiction. That is all the legislature
has done in adopting the PCRA. It has prescribed the elements of a
claim that a petitioner must establish as a basis for the issuance of a
post-conviction extraordinary writ. See UTAH CODE § 78B-9-104; see
also Archuleta v. State, 2020 UT 62, ¶ 30, 472 P.3d 950 (concluding that
a given claim was not provided for by the terms of the PCRA and
thus holding that ―the PCRA does not recognize the claim as a
ground for relief‖). And it has established defenses to the issuance of
such a writ. See UTAH CODE §§ 78B-9-106–107.
¶259 These are standard exercises of legislative power. And the
majority has identified no constitutional basis for foreclosing the
exercise of this power.
3
¶260 The majority‘s holding also fails to account for another
aspect of our constitutionally guaranteed original jurisdiction. This
jurisdiction extends to both the power ―to issue all extraordinary
writs‖ and the power ―to answer questions of state law certified by a
court of the United States.‖ UTAH CONST. art. VIII, § 3. And the
constitutional establishment of this jurisdiction thus precludes the
legislature from restricting or expanding the scope of this power. But
it does not foreclose the legislative regulation of the elements of and
defenses to claims that come before us in the exercise of that
jurisdiction.
¶261 The legislature indisputably has the power to prescribe the
substance of claims that come before us on certification from federal
courts. This is a longstanding, widespread practice. See generally, e.g.,
Zimmerman v. Univ. of Utah, 2018 UT 1, 417 P.3d 78 (considering on
certification whether a statute of limitations as prescribed by statute
applied to a research professor who had been terminated); Egbert v.
Nissan N. Am., Inc., 2007 UT 64, ¶ 8, 167 P.3d 1058 (determining on
certification whether a jury should be instructed ―that a presumption
of non-defectiveness‖ had arisen under the Utah Product Liability
Act as prescribed by statute). And no one has ever suggested that

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that is an incursion on our constitutionally guaranteed original
jurisdiction.
¶262 The wrongful death example proves this point. A
common-law claim for wrongful death could properly come before
this court under the exercise of our ―original jurisdiction‖ over a case
certified to us by a federal court under article VIII, section 3 of the
Utah Constitution.65 But any limit on the legislature‘s power to
regulate a wrongful death claim comes through the express terms of
article XVI, section 5—a provision that expressly forecloses the
abrogation of a wrongful death claim—not from the article VIII,
section 3 prohibition on legislative limitation of our ―original
jurisdiction.‖
¶263 This is indisputably the law for claims that fall within our
―original jurisdiction‖ over cases on certification from federal courts.
And there is nothing in the ―plain language‖ or ―structure‖ of the
Utah Constitution that suggests that claims sounding in an
―extraordinary writ‖ should be treated differently.
¶264 I agree with the majority that the legislature lacks the
power to ―tell us what types of certified questions we can answer,‖
or in other words to adopt an outright prohibition on our power to
hear a given category of certified claims. See supra ¶ 162. But as the
majority acknowledges, the legislature retains the power to ―define[]
the elements and defenses‖ that govern the claims that come before
us in the exercise of our original jurisdiction. Supra ¶¶ 161, 163. And
that is true whether those claims come before us in a certified
question or on an extraordinary writ.
¶265 The majority identifies no persuasive ground for any
contrary conclusion. And the certified questions analogy thus
undermines the constitutional linchpin of the majority opinion.

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65 Cf., e.g., Smith v. United States, 2015 UT 68, ¶ 2, 356 P.3d 1249
(hearing case on certification by federal court of question of whether
a provision in the Utah Health Care Malpractice Act limited recovery
for wrongful death cases); see also Holden v. N L Indus., Inc., 629 P.2d
428, 431 (Utah 1981) (noting, on certification of a wrongful death
case, that ―this Court‘s answer to a certified question in a case that
originated in or is to be adjudicated in a federal court is not an
exercise of ‗appellate jurisdiction‘ within the meaning of the Utah
Constitution‖).

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4
¶266 My approach is also reinforced by analogous limitations
on the legislative power—in the Open Courts Clause and the article
XVI, section 5 ban on the abrogation of a wrongful death cause of
action. These provisions establish that a constitutional guarantee of
judicial power to hear a given claim forecloses the legislative
abrogation of such claim. But they also make clear that the
legislature remains free to adopt or refine the elements of a such a
claim despite the constitutional reservation of judicial power.
¶267 The wrongful death provision in article XVI, section 5
states that ―[t]he right of action to recover damages for injuries
resulting in death[] shall never be abrogated, and the amount
recoverable shall not be subject to any statutory limitation. . . .‖
UTAH CONST. art. XVI, § 5. This is a constitutional guarantee of
judicial power to hear a wrongful death claim—a claim, like a claim
under an extraordinary writ, that was initially established in a body
of common law.66 But this guarantee is not taken as a sweeping
foreclosure of the exercise of any and all legislative power in this
general field. It is interpreted in accordance with its precise
language—which speaks to an ―abrogat[ion]‖ of the claim or a
limitation on the ―amount recoverable‖ by a plaintiff.
¶268 Our case law has given voice to these limits on the
legislative power. We have noted that ―Utah statutes permit
recovery for wrongful death‖ but have ―modified the common law‖
in certain respects. Grow v. Or. Short Line R. Co., 138 P. 398, 408 (Utah
1913). And we have upheld the legislature‘s power to make such
modifications—to ―enact reasonable procedures for the enforcement
of wrongful death actions‖ and to ―provide for reasonable defenses
that are not inconsistent with the fundamental nature of the
wrongful death action itself.‖ Hirpa v. IHC Hosps., Inc., 948 P.2d 785,
794 (Utah 1997) (quoting Berry ex rel. Berry v. Beech Aircraft Corp., 717
P.2d 670, 685 (Utah 1985)).
¶269 The ―open courts‖ example reinforces this view. Under the
open courts clause, our constitution guarantees that our ―courts shall
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66 See generally Frederick Davis, Wrongful Death, 1973 WASH.
U.L.Q. 327 (1973) (explaining common law history of wrongful death
actions); Bybee v. Abdulla, 2008 UT 35, ¶ 18, 189 P.3d 40 (explaining
that the Utah Constitution implicitly recognizes the wrongful death
action established at common law, despite some difference among
courts in 1895).

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be open‖ and preserves a ―remedy by due course of law‖ in our
courts for ―an injury done to [a] person in his or her person,
property, or reputation.‖ UTAH CONST. art. I, § 11. But again, the
reservation of this power for our courts is not viewed as a sweeping
foreclosure of all legislative power. Our case law holds that the open
courts clause simply precludes the legislature from ―abrogat[ing] a
cause of action‖ unless it provides ―an effective and reasonable
alternative remedy‖ or establishes that abrogation is ―not an
arbitrary or unreasonable means‖ of eliminating a ―clear social or
economic evil.‖ Waite v. Utah Lab. Comm’n, 2017 UT 86, ¶ 19, 416 P.3d
635 (citations omitted). And this standard leaves ample room for the
legislative regulation of the substantive elements of claims.
¶270 Both the wrongful death provision and the open courts
clause thus cut against the majority‘s position and in favor of my
view. The majority has identified no meaningful basis for
interpreting article VIII any differently from these provisions.67 And
the textual and structural parallel among them indicates that the
article VIII guarantee of ―original jurisdiction‖ to issue
―extraordinary writs‖ forecloses legislative abrogation or alteration
of such jurisdiction but preserves the legislature‘s power to enact

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67 The majority responds by characterizing the wrongful death
and open courts provisions as prescribing ―a restriction on
legislative authority‖ and the provisions of article VIII as
establishing ―a constitutional grant of power to a co-equal branch of
government.‖ Supra ¶ 165. But that is a distinction without a
difference. For reasons explained above, the constitutional guarantee
of our ―original jurisdiction‖ is a reservation of judicial power with a
clear, implied limitation—our courts have constitutionally
guaranteed ―original jurisdiction‖ and the legislature is thereby
foreclosed from abrogating that jurisdiction.
―When questions concerning the distribution of powers [between
the branches of government] arise,‖ we do not only ―answer them by
reference to article V, section 1 of the Utah Constitution.‖ Supra
¶ 167. We must begin with the constitutional provision that speaks
expressly to the constitutional reservation of power. Here that
provision speaks clearly in terms of a guarantee of ―original
jurisdiction‖ that may not be abrogated by the legislature. And that
construct clearly reserves for the legislature the power to prescribe
the elements of and defenses to the claims that come before us
within our constitutionally guaranteed jurisdiction.

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elements and defenses that are ―not inconsistent with the
fundamental nature‖ of such writs.
5
¶271 The text and structure of the Utah Constitution‘s
protection of the writ at issue here cuts even more strongly in favor
of this conclusion. Where the Utah Constitution speaks specifically of
substantive limits on the extraordinary writ at issue here, it provides
that ―[t]he privilege of the writ of habeas corpus shall not be
suspended, unless, in case of rebellion or invasion, the public safety
requires it.‖ UTAH CONST. art. 1, § 5. This limitation, moreover, is not
a bar on all exercises of legislative power over this writ. It is simply a
prohibition of ―suspension‖—of an outright ―stay,‖ cessation, or
―interrupt[ion]‖ of the availability of the writ. See supra ¶¶ 207–09
(citing this understanding of ―suspension‖).
¶272 That conclusion seems incompatible with the majority‘s
interpretation of article VIII. Of the two provisions, it is the
suspension clause that speaks directly and specifically to substantive
limits on the writ at issue in this case—in its prohibition of
―suspension.‖ (Article VIII is much more removed from the
substance of the writ. By its terms, it speaks only to a guarantee of
―jurisdiction.‖)
¶273 These two provisions ultimately can (and should) be read
as compatible and mutually reinforcing. When our courts are
deprived of ―jurisdiction‖ to issue the writ, the writ is ―suspended.‖
See Ex parte Milligan, 71 U.S. 2, 130–31 (1866) (explaining that the
―suspension of the privilege of the writ of habeas corpus does not
suspend the writ itself‖ but instead removes ―the right of proceeding
any further with it‖ until the end of the suspension). If the legislature
retains the power to adopt elements and defenses to the writ that do
not amount to a ―suspension,‖ our courts should necessarily be
viewed as retaining our ―jurisdiction‖ to issue them. That follows
logically from the proposition that the ―suspension‖ of the writ
occurs when our courts are stripped of the ―jurisdiction‖ to issue
such writ. Id. And it is reinforced by case law suggesting that the
constitution bars ―jurisdiction-stripping‖ statutes only when they
remove the courts‘ authority to adjudicate a constitutional claim.68

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68 Though courts and commentators have never settled on a
specific formulation of constitutional jurisdiction-stripping, everyone
seems to agree that the concept generally refers to a statute that
(continued . . .)
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B
¶274 The majority also cites Utah precedent in support of its
view. See supra ¶¶ 149–54, 151 n.31 (citing State ex rel. Robinson v.
Durand, 104 P. 760 (Utah 1908); Winnovich v. Emery, 93 P. 988 (Utah
1908); Petersen v. Utah Bd. of Pardons, 907 P.2d 1148 (Utah 1995);
Brown v. Cox, 2017 UT 3, 387 P.3d 1040). But the cited cases do not
support the court‘s approach. They reinforce my position—in
establishing that the legislature has the power only to regulate our
―appellate jurisdiction‖ and lacks the power to limit our ―original
jurisdiction‖ to issue extraordinary writs. And they do not hold that
this limitation implies a further restriction on the legislature‘s power
to regulate the substance of the claims that come before our courts in
the exercise of our jurisdiction to issue extraordinary writs.
Winnovich & Durand
¶275 Winnovich and Durand are two cases that are key to
understanding the scope of our constitutional writ power. In both
cases, the court considered whether and to what extent an
extraordinary writ may be allowed to displace the appellate
jurisdiction of our courts—review on the record and on the merits of
a lower court decision. And in both cases, our court repudiated such

removes the court‘s ability to hear and resolve any cases involving a
constitutional claim. See Ex parte McCardle, 74 U.S. 506, 514 (1868)
(finding that Congress had not stripped the Court‘s habeas corpus
jurisdiction because it could still hear claims under extraordinary
original jurisdiction); Boumediene v. Bush, 553 U.S. 723, 736 (2008)
(explaining that the ―threshold matter‖ in resolving a habeas corpus
jurisdiction-stripping case involves determining whether a statute
―denies the . . . courts jurisdiction to hear habeas corpus actions‖);
United States v. Klein, 80 U.S. 128, 147 (1871) (holding
unconstitutional a statute that removed the Supreme Court‘s
jurisdiction to hear certain cases in which a party had received a
pardon); Durousseau v. United States, 10 U.S. 307, 313 (1810)
(declaring, in a discussion of the extent of the Court‘s jurisdiction,
that ―[e]very question originating in the constitution of the United
States claims, and will receive, the most serious consideration of [the
Supreme Court]‖).

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displacement.69 Yet in so doing, we also reaffirmed the existence of
other exercises of legislative power over extraordinary writs. 70
¶276 The key background principle is highlighted in the Durand
opinion. There the court began by observing that the then-existing
provisions of article VIII of the Utah Constitution guaranteed the
―original jurisdiction‖ of the Utah Supreme Court ―to issue writs of
mandamus, certiorari, prohibition, quo warranto, and habeas
corpus‖ and the ―power‖ of the district courts to ―issue‖ the same
writs. Durand, 104 P. at 762 (citation omitted). It also observed that
this constitutionally guaranteed jurisdiction—unlike the appellate
jurisdiction of the courts—was not subject to regulation by the
legislature. Id. And it therefore held that the legislature lacked the
power to ―enlarge[]‖ the jurisdiction of our courts to issue
extraordinary writs by extending such jurisdiction to encompass
what amounts to appellate review—to ―review mere error‖ of a
lower court. Id. at 763.
¶277 The Durand court observed that the constitution ―would
have said so‖ if it meant to make the jurisdiction of our courts to
issue extraordinary writs ―as may be prescribed by law‖ by the
legislature. Id. at 764. But it emphasized that the constitution does
not so provide. And it therefore held that it is not within the power
of the legislature either to ―abridge‖ or to ―enlarge‖ our courts‘
jurisdiction in this field—emphasizing that ―the power of courts to
issue the writs‖ is no more ―dependent upon the will and discretion
of the Legislature‖ than is the ―cases to which [such writs] may
apply.‖ Id.

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69 See Winnovich v. Emery, 93 P. 988, 993 (Utah 1908) (holding that
at least ―in the absence of a statute conferring the right,‖ ―[t]he writ
of habeas corpus cannot be made to serve the purpose of an
appeal‖); State v. Durand, 104 P. 760, 763 (Utah 1908) (holding that it
is not ―within the power of the Legislature‖ to enact a statute
providing for what amounts to appellate review on a writ of
prohibition).
70 See Winnovich, 93 P. at 990 (holding that ―[i]n modern times
habeas corpus may . . . be considered as a statutory proceeding,
although it had its origin in the common law‖); Durand, 104 P. at 764
(noting that ―the remedy by writ of prohibition . . . is the common
law writ recognized and regulated by statute (citation omitted)
(emphasis added)).

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¶278 In so holding, the Durand court contrasted review upon
extraordinary writ with review on appeal. An appeal, the court
noted, is direct review on the merits ―as provided by the Code of
Civil Procedure‖ (a statute regulating, among other things, the terms
and conditions of the appellate jurisdiction of the Utah courts). Id. at
765. And the appellate jurisdiction of our courts (the power of this
court to review the merits of a lower court decision on the record)
was then, as now, expressly subject to legislative regulation. UTAH
CONST. of 1907, art. VIII, § 9 (―The appeal shall be . . . under such
regulations as may be provided by law.‖).
¶279 The constitutional defect in the Durand case was in the
legislature‘s failure to respect this distinction. The statute at issue
purported to provide for the district court review of certain decisions
of the ―justices‘ courts‖ upon a ―writ of prohibition‖ filed in the
district court as an alternative to merits review on appeal. Durand,
104 P. at 761 (citing Rev. St. § 3724 (1898)). In striking down this
statute, the court noted that the long-settled ―office‖ or ―function‖ of
the ―writ of prohibition‖ was the ―power‖ of a court to ―arrest[] the
proceedings of any tribunal, corporation, board, or person . . . when
such proceedings are without or in excess of the jurisdiction of such
tribunal corporation, board or person.‖ Id. at 764 (citing both case
law and a territorial statute regulating this writ and noting that ―the
only office of the writ was to prevent usurpation of jurisdiction and
to restrain acts in excess of or without jurisdiction‖). It also
contrasted that function or office with that of review for ―error‖—on
an appeal on the record of the lower court decision. Id. And it held
that the legislature lacked the power to regulate the jurisdiction of
our courts to issue extraordinary writs, whether by ―abridg[ing]‖ or
―enlarg[ing]‖ this ―power.‖ Id.
¶280 The Durand opinion is accordingly not in line with the
majority‘s view. Durand did not hold that the constitutional
guarantee of jurisdiction of our courts to issue extraordinary writs
forecloses all legislative power ―to regulate the substance of the
writ.‖ Supra ¶ 160 (citing Brown v. Cox for this proposition); infra
¶ 285 (noting that ―Brown is a natural extension of Durand‖). It
simply noted the limited function of the extraordinary writ at issue
(the writ of prohibition), emphasized that the legislature had no
power to abridge or enlarge the judicial power to issue such a writ,
and struck down a statute seeking to put the square peg of appellate
review into the round hole of the writ.
¶281 The core basis of Durand is the distinction between the
courts‘ jurisdiction to issue extraordinary writs (which could not be
abridged or enlarged by the legislature) and the courts‘ appellate
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LEE, A.C.J., concurring in part and in the judgment
jurisdiction (which was and is subject to legislative regulation).
Direct review for error on appeal was a matter governed by statute
under ―the Code of Civil Procedure.‖ Durand, 104 P. at 765. Because
that was not the ―office‖ or ―function‖ of the writ of prohibition, the
Durand court struck down the statute in question on the ground that
it sought to ―enlarge‖ the scope of our courts‘ jurisdiction to issue an
extraordinary writ.
¶282 That holding is fully consistent with my position and
incompatible with the majority‘s. Durand holds that the legislature
lacks the power to abridge or enlarge our courts‘ jurisdiction to issue
extraordinary writs—an act it deemed ―repugnant to the meaning‖
of the reservation of constitutional jurisdiction in this field. Id. at 764.
But it does not foreclose any and all ―substantive limitations on the
writ.‖ Supra ¶ 159. If anything, it leaves the door open to limitations
so long as they do not abridge or enlarge our courts‘ jurisdiction and
are not repugnant to the writs that are reserved for our judicial
power. See also supra ¶¶ 260–65 (noting that other limitations on
legislative power reserve the power to make reasonable regulations).
Petersen & Brown
¶283 The Petersen and Brown cases are consistent with this view.
In neither of these cases did we call into question the legislature‘s
power to regulate the substance of an extraordinary writ. As in
Winnovich and Durand, we simply held that the legislature may not
abridge or enlarge our jurisdiction to issue such writs.
¶284 In Petersen we reinforced the distinction between our
courts‘ appellate jurisdiction (subject to legislative restriction) and
our jurisdiction to issue extraordinary writs (which is
constitutionally guaranteed). We thus recognized the legislature‘s
power to ―refuse to provide a statutory appeal from orders of a
governmental agency.‖ Petersen, 907 P.2d at 1152. But we held that
the legislature may not ―curtail the constitutional powers of this
Court to issue extraordinary writs in appropriate circumstances.‖ Id.
Citing article VIII, section 3, we emphasized that ―the Utah
Constitution provides that the Supreme Court has ‗original
jurisdiction to issue all extraordinary writs.‘‖ Id. Because the
petitioner in Petersen was asserting a ―challenge to the authority of a
governmental agency or officer to restrain a person‘s liberty‖ (in a
challenge to the authority of the Board of Pardons to revoke his
parole), we found that we had jurisdiction to hear that challenge as a
matter falling within our constitutionally guaranteed jurisdiction to
issue extraordinary writs. Id. And we did so despite the legislature‘s
obviation of any right of appeal from decisions of that agency,

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LEE, A.C.J., concurring in part and in the judgment
emphasizing that ―the Legislature ha[s] no power to restrict [our]
writ powers.‖ Id. In so holding, we said nothing about the power of
the legislature to regulate the substance of an extraordinary writ.
That question was not presented to the court.
¶285 The Brown v. Cox decision is along similar lines. Brown is a
natural extension of Durand. As in Durand, the legislature had sought
to ―extend this court‘s original jurisdiction‖ to issue extraordinary
writs—in a statute purporting to authorize a challenge to a multi-
county primary election in an original action in this court. Brown,
2017 UT 3, ¶ 12. While recognizing that ―[t]he Utah Constitution
provides that this court possesses ‗appellate jurisdiction over . . .
matters to be exercised as provided by statute,‘‖ we emphasized that
―the Utah Constitution does not grant the Legislature authority to
alter our original jurisdiction.‖ Id. ¶ 13 (second alteration in original)
(citation omitted). Because article VIII, section 3 limits our original
jurisdiction to the issuance of extraordinary writs, we held that the
legislature exceeded its authority in extending that jurisdiction
beyond the constitutional scope. ―The Legislature can neither
increase nor decrease this court‘s constitutionally derived powers‖ to
issue extraordinary writs. Id. ¶ 14. So the legislature exceeds its
power when it seeks to ―enlarge[] or abridge[]‖ our jurisdiction. Id.
(citation omitted).
¶286 This is our settled constitutional law. But it does not
support the majority‘s conclusion that the legislature lacks all
―substantive‖ power. It just reinforces what is apparent from the
language and structure of article VIII, section 3—that our courts‘
―jurisdiction‖ to issue extraordinary writs is constitutionally
guaranteed, and may not be altered by the legislature.
III
¶287 Today this court makes a sweeping pronouncement of
constitutional law. It draws an important constitutional line in the
sand—holding that the legislature lacks the power to adopt
―substantive‖ limits on extraordinary writs and is limited to
amending ―procedural‖ rules adopted by this court.
¶288 I see no basis in our law for this broad holding. And I see
no reason for the court to establish it in a case in which there is as yet
no independent exercise of this legislative power—no defense to a
claim for an extraordinary writ that has not been separately
endorsed in the rules of this court.

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