This opinion is subject to revision before final p ublication in the Pacific Reporter
201 9 UT 35

IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

Y OLANDA V EGA , Appellant
,

v. J ORDAN V ALLEY M EDICAL C ENTER , LP , 1 Appellee s

.

No. 20170866 Filed Ju ly 19
, 2019

On Direct Appeal

Third District
, Salt L ake The Honorable Katie Bernards

- Goodman No. 170900581

Attorneys: Troy L. Booher, Beth E. Kennedy, Michael J. Teter, G. Eric Nielson, Mark W. Dahl, Lena Daggs , Salt Lake City , for appellant Rodney R. Parker, Derek J. Williams, Nathanael J. Mitchell, Brian P.

Miller, Frederick Mark Gedicks, Shawn McGarry, Kirk G. Gibbs, David C. Epperson, Salt Lake City , for appellees

J USTICE H IMONAS au thored the opinion of the Court in which C HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE L EE , J USTICE P EARCE , and J USTICE P ETERSEN joined.

J USTICE H IMONAS , opinion of the Court:

_____________________________________________________________ 1 R YAN C AVANESS , RN ; P HYSICIAN G ROUP OF U TAH , I NC .; K RISTOFER M ITCHELL , M

. D

. ; T RACY S YDDALL , PA

- C; R OBERT S WIFT , M

. D

. ; I NTERMOU NTAIN A NESTHESIA C ONSULTANTS LC; and A NGELA S ALERNO , CRNA ; are also parties to this appeal.V EGA v

. J ORDAN V ALLEY M EDICAL Opinion of the Court

2 INTRODUCTION ¶1 For reasons still unknown, Gustavo Vega, a n otherwise healthy forty

- four

- year

- old male, went in for a routine gallbladder operation and came out in a coma

. He died a week later. His wife, Yolanda Vega
, brought a medical malpractice action against Jordan Valley Medical Center and all related medical providers who were involved in Mr. Vega’s care. The district court dismissed Ms. Vega’s action pursuant to section 78B

- 3

- 423(7) of the Utah Health Care Malpractice Act 2 because she failed to obtain a certificate of compliance from the Division of Occupatio nal and Pr ofessional Licensing ( DOPL ) . On appeal M s. Vega challenges the constitutionality of the Malpractice Act on several grounds. We hold that the Malpractice Act vio late s Article VIII
, section I of the Utah Constitution

— the judicial power provision

— by allowing DOPL to exercise the core judicial function of ordering the final disposition of claim s , like those brought by Ms. Vega
, without judicial review

. Accordingly, we find the offending provision s in the Act unconstitutional
, reverse the district court ’s grant of appellees’

m otion to d ismiss , and remand this case for a determination on the merits.

BACKGROUND ¶2 In 2014, Gustavo Vega underwent a routine procedure to have his gallbladder removed

. 3 But a f t er the conclusion of the surgery, Mr. Vega did not w a ke up

. Mr. Vega had a CT scan that revealed “low lung volumes” and neurologists diagnosed him with an anoxic brain injury that occurred during the surgery or immediately afterwards. A cardiologist was consulted and noted in the record that t he “ events immediately following that [gallbladder] surgery are not clear to me.” Mr. Vega died a week after the surgery

_____________________________________________________________ 2 At the time Ms. Vega filed her suit, section 78B

- 3

- 423(7) was numbered as section 78B

- 3

- 423(6). Because the text s of the two provisions are identical, we cite to the current version of the
statute

— section 78B

- 3

- 423(7).

3 Appellees moved to dismiss Ms. Vega’s complaint pursuant to Utah Rules of Civil Procedure 12(b)(1) and 12(b)(6)

. For purposes of our factual recitation, we treat rule 12(b)(1) and rule 12(b)(6) motions alike: “factual allegations are accepted as true and all reasonable inferences to be drawn from those facts are considered in a light most favorable to the plaintiff.” Mallory v. Brigham Young Univ. , 2014 UT 27, ¶ 32 n.1, 332 P.3d 922 (Sto ne, J., dissenting)

.Cite as: 2019 UT 35 Opinion of the Court

3 at the age of forty

- four

. Following his death, Ms. Vega, his wife of twenty years , prepared to file this malpractice action under the Utah Health Care Malpra ctice Act
, U TAH C ODE § 78B

- 3

- 401 to

- 426

. ¶3 By way of background, the Malpractice Act requires plaintiffs to obtain a certificate of compliance from DOPL before filing their case in district court

. U TAH C ODE § 78B

- 3

- 412(1)(b)

. T his was not always the case. Prior to 2010, the Malpractice Act only required that plaintiffs submit to a non

- binding prelitigation hearing. See U TAH C ODE § 78B

- 3

- 416(1) (2009)

. Regardless of the outcome of the prelitigation hearing, plaintiffs were permitted to file their claims in d istrict court ; no certificate of compliance was required. Id

. However, under the current regime, as enacted through the 2010 amendments , a certificate of compliance is a prerequisite to a plaintiff filing a medical malpractice action in district court. U TA H C ODE § 78B

- 3

- 412(1)(b)

. ¶4 Pursuant to the Malpractice Act
, Ms. Vega filed her notice of intent to commence this action. Id

. § 78B

- 3

- 412(1)(a). 4 P arties that file this notice are then required to present their case to a prelitigation panel that consists of a doctor, a lawyer , and a layperson

. I d

. § 78B

- 3

- 416 (4)(a)

– (c)

. The prelitigation panel “ proceedings are informal, nonbinding and .

. . are compulsory as a condition precedent to commencing litigation.” Id. § 78B

- 3

- 416(1)(c). The formal rules of eviden ce do not apply to these hearings and discovery is only permitted by a finding of “special order of the panel, and for good cause shown demonstrat ing extraordinary circumstances

. ” Id

. § 78B

- 3

- 417(4). DOPL may also “issue subpoenas for medical records direc tly related to the claim of medical liability.” Id

. § 78B

- 3

- 417(2). The panel must determine whether “each claim against each health care provider has merit or has no merit.” Id. § 78B

- 3

- 418(2) (a) (i). If the panel finds that a plaintiff’s claim has merit, DOPL issues a certificate of compliance for each meritorious claim
, i d. § 78B

- 3

- 418(3)(a), and the plaintiff can then file the case in district court
, id. § 78B

- 3

- 412(1)(b)

.

_____________________________________________________________ 4 “A malpractice action against a health care provider may not be initiated unless and until the plaintiff .

. . gives the prospective defendant or his executor or successor, at least 90 days’ prior notice of intent to commence an acti on.” U TAH C ODE § 78B

- 3

- 412(1). Once a plaintiff files a notice of intent, DOPL then has 180 days to complete a preligitation panel review of the plaintiff’s claims

. Id. § 78B

3

- 416(3)(b).V EGA v

. J ORDAN V ALLEY M EDICAL Opinion of the Court

4 ¶5 If the panel decides that a plaintiff’s claim lack s merit , the Malpractice Act permits the plaintiff to nonetheless compel DOPL to issue a certificate of compliance by obtain ing a n affidavit of merit from a health care provider

. Id. § 78B

- 3

- 423(1)

. DOPL will issue a certificate of compliance for a claim if t he affidavit of merit include s a statement that the plaintiff or the plaintiff’s attorney “consulted with and revi ewed the facts of the case with a health care provider who has determined after a review of the medical record and other relevant material involved in the particul a r action that there is a reasonable and meritorious cause for the filing of a medical liability action. ” Id. § 78B

- 3

- 423(2)(a)

. An affidavit of merit from a health care provider must state that : (i) in the health care provider’s opinion, there are reasonable grounds to believe that the applicable standard of care was breached; (ii) in the health care provider’s opinion, the breach was a proximate cause of the injury claimed in the notice of intent to commence action; and (iii) the reason s for the health care provider’s opinion.

See i d

. § 78B

- 3

- 423(2)(b). ¶6 Ms. Vega attempted to obtain a certificate of compliance through DOPL’s prelitigation panel

. But the panel determined that Ms. Vega’s claim lacked merit. ¶7 Having received a finding of no merit from the prelitigation panel, Ms. Vega’s only other option to obtain a certificate of compliance was through an affidavit of merit. See id. Ms. Vega retained Dr. Myer Rosenthal
, a doctor at the Stanford University School of Medicine
, to provide the necessary affidavit. Dr. Rosenthal was able to certify that he believed there were reasonable grounds to believe there was a breach in the standard of care that proximately caused the death of Mr. Vega
, but he could not provide the details and reasoni ng for his opinion based on the medical record. Dr. Rosenthal state d that he “cannot specifically comment on the actions of the Resp ondents that constitute breaches in the standard of care due to the inadequacy of the medical records provided to [Ms. Vega] ” and that “ [ t ] he circumstances surrounding Mr. Vega’s injury are highly suspect.” DOPL determined that Ms. Vega’s affidavit was inadequate and asked Ms. Vega to file an amended affidavit. Because Ms. Vega did not provide an amended aff idavit
, and so did

no t comply with DOPL’s requirements, Ms. Vega did not obtain a certificate of compliance.Cite as: 2019 UT 35 Opinion of the Court

5 ¶8 Ms. Vega filed suit against appellees four months later without the certificate of compliance

. Appellees filed a motion to di smiss with prejudice citing Utah Code secti on 78B

- 3

- 423(7) of the Malpractice Act
, which states that “[i]f a claimant or the claimant’s attorney does not file an affidavit of merit as required .

. . the division may not issue a certificate of compliance for the claimant and the malpractice action s hall be dismissed by the court .” ( e mphasis added)

. Ms. Vega opposed the motion to dismiss
, arguing that the Malpractice Act violated several provisions of the Utah Constitution. Specifically, Ms. Vega argued that the Malpractice Act violates the

s eparation of p owers d octrine, the w rongful d eath p rovision, the

o pen c ourts c lause, the u niform o peration of l aws c lause, and the d ue p rocess c lause of the Utah Constitution

. Citing the inadequacy of prelitigation discovery and the lack of clear physician notes, the district c ourt determined that “it [was] impossible [for Ms. Vega] to comply with what DOPL is asking
, ” and therefore Ms. Vega could never cure the deficiency in her affidavit . The district court fu r ther determined that dismissing the case witho ut prejudice to allow Ms. Vega to seek the opinion of another expert would be futile. Accordingly, the district court granted the motion to dismiss with prejudice. 5 ¶9 Ms. Vega appealed to this court, preserving her claims that the Malpractice Act violates the separation of powers provision s , the wrongful death provision, the due process clause , the open courts provision, and the u niform o peration of l aws provision of the Utah Constitution. ¶10 We exercise jurisdictio n under Utah Code section 78A

3

- 102(3)(j).

_____________________________________________________________ 5 The district court applied the plain language of the statute and decided to “let the higher court make the decisions” regarding its constitutionality. This hands

- off approach to constitutional questions fundamentally misunderstands the obligations of a district court j udge . While this court has the final say as to constitutional interpretation, the judicial function of the lower courts is not optional; it is the duty of the courts to reason through each case and issue decisions based on sound and thorough legal analysis
, including constitutional analysis . We are meant to be the final review

— not the only review

— of such issues.V EGA v

. J ORDAN V ALLEY M EDICAL Opinion of the Court

6 S TANDARD OF REVIEW ¶11 We review constitutional and statutory interpretation issues for correctness
, granting no deference to the district court. Schroeder v. Utah Attorney Gen.’s Office , 2015 UT 77, ¶ 16, 358 P.3d 1075

. ANALYSIS ¶12 Ms. Vega’s facial challenge to the Malpractice Act raises several important issues of constitutional law. We presume that legislative enact ment s are constitutional and where possible will construe them as complying with our state an d federal constitutions. See State v. Drej , 2010 UT 35
, ¶ 9, 233 P.3d 476

. T he presumption of constitutionality also means that we will seek to resolve doubts about a statute’s validity in favor of constitutionality
, and will not declar e a legislative enactment invalid unless it clearly violates a constitution al provision. See
, e.g. , State v. Angilau
, 2011 UT 3, ¶ 7, 245 P.3d 745 ; Merrill v. Utah Labor Comm’n , 2009 UT 26, ¶ 5, 223 P.3d 1089; In re Estate of S.T.T. , 2006 UT 46
, ¶ 26, 144 P.3d 1083; Jones v. Utah Bd. o f Pardons & Parole , 2004 UT 53, ¶ 10, 94 P.3d 283. Moreover , in a facial challenge to a statute, like Ms. Vega’s, we will only overturn the will of the legislature when “the statute is so constitutionally flawed tha t no set of circumstances exists under which the [statute] would be valid.” Gillmor v. Summit Cty. , 2010 UT 69, ¶ 27, 246 P.3d 102 (alteration in original) (citation omitted) (internal quotation marks omitted). ¶13 U ltimately, we conclu de that Utah Code section 78B

3

- 412(1)(b), which requires a certificate of complia nce from DOPL in order for a plaintiff , like Ms. Vega, to initiate a malpractice action against a health care provider, is unconstitutional. Accordingly, those sections of the Malpractice Act that require a plaintiff to obtain

a certificate of compliance p rior to filing a lawsuit in the district
court must be stricken from the Act. Additionally, we declare the language i n Utah Code section 78B

- 3

- 423(7) , which mandates a dismissal of any malpractice action filed without a certificate of compliance, to be unc onstitutional. Because section 423 cannot stand alone or serve a purpose without section 423(7) , we find the entirety of section 423 and all language throughout the act that refers to affidavits of merit to be unconstitutional.

I. OUR SEPARATION OF POWERS AND CORE JUDICIAL FUNCTIONS JURISPRUDENCE ¶14 Ms. Vega’s challenge to the statutory regime implicates two related
, but distinct
, constitutional provisions: the separation of powers ensconced in Article V and the judicial power vested in Article VIII. A rticle V , section I of the Utah C onstitution states:Cite as: 2019 UT 35 Opinion of the Court

7 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.
And Article VIII
, section I states in relevant part: “ The judicial power of the state shal l be vested in a Supreme Court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish. ” ¶15 While Article V regulates and guides the apportionment of authority and function be tween the branches of government, the core judicial power vested in the courts by Article VIII is always retained by the judiciary

— regardless of whether the party attempting to exercise a core judicial function belongs to another branch of the government. 6 In interpreting A rticle VIII we have said

_____________________________________________________________ 6 We also take this opportunity to clarify the holding in Jones v. Utah Board of Pardons & Parole , 2004 UT 53, 94 P.3d 283. In Jones , we held that the statute empowering the Board of Pardons and Parole to issue retaking warrants did n ot violate Article V or Article VIII. With respect to the core judicial function challenge under Article VIII, we reasoned that because the Board of Pardons and Parole was not a court of record, our line of core judicial function cases did not apply in an analysis of the limits of the Board’s powers. Id

. ¶ 17. We also noted that, in any event, the ability to issue retaking warrants was not a core judicial function. Id

. ¶ 20. However, we now disclaim any of the dicta in Jones suggesting that our core judicial function jurisprudence does not apply outside of courts of record. Because we held that issuing retaking warrants was not a core judicial function, it was immaterial whether the retaking warrants were being issued by a court of record or a court not of record
, and the discussion regarding courts of record is dicta. Core judicial functions under Article VIII remain the province of the judiciary and “to the extent that [ any grant of authority] purports to vest ultimate judicial power

. . . in persons who have not been duly appointed as article VIII judges,” within or without courts of record, we retain the ability to carefully circumscribe constitutional limits and safegu ard the judicial power vested in Article VIII section I. Salt Lake City v. Ohms
, (continued

. . .)V EGA v

. J ORDAN V ALLEY M EDICAL Opinion of the Court

8 that the “explicit vesting of jurisdiction in the various courts of the state is an implicit prohibition against any attempt to vest such jurisdiction elsewhere.” Salt Lake City v. Ohms , 881 P.2d 844, 849 (Utah 1994). Additionally, the “[c]ore functions or powers of the various branches of government are clearly nondelegable under the Utah Constitution.” Id

. at 848

. Notably, the core judicial function of courts includes “the power to hear and determine cont roversies between adverse parties and questions in litigation.” Timpanogos Planning & Water Mgmt. Agency v. Cent

. Utah Water Conservancy Dist.
, 690 P.2d 562, 569 (Utah 1984) (internal quotation marks omitted). However, “[c]ore judicial functions do not inc lude functions that are generally designed to assist courts, such as conducting fact finding hearings, holding pretrial conferences, and making recommendations to judges.” State v. Thomas , 961 P.2d 299, 302 (Utah 1998) (internal quotation marks omitted)

. T he notable distinction

— between assistance and authority

— implicates the ultimate power to dispose of a claim or cause of action. We have clearly stated that it is unconstit ut ional for anyone but “duly appointed judges” subject to “constitutional checks and balances” to adjudicate cases and enter final judgments. See Ohms , 881 P.2d at 851, 855. Because we find that the Malpractice Act violates Article VIII ’s grant of the judicial power
, we need not examine Ms. Vega’s Article V arguments.

II

. DOPL EXERCISES CORE JUDICIAL FUNCTI ONS UNDER TH E UTAH MEDICAL MALPRAC TICE ACT IN VIOLATIO N OF ARTICLE VIII SECTION I OF THE UTAH CONSTI TUTION ¶16 There is a clear line between permissible statutory prescriptions for pretrial conferencing or litigation assistance
, and full

- on encroachment s of the judicial power. T he legislature can establish pretrial panels, commissioners, and all kinds of assistance for a judicial determination without running afoul of Article VIII

. However, the 2010 enactments and amendments to the Malpracti ce Act
, which requir e dismissal of an action absent a certificate of compliance from DOPL
, exceed any offer of mere assistance to the
courts and instead ultimately represent an exercise of core judicial functions

. ¶17 Again, w hen reviewing the construction of st atutes, “[t]he general rule is that statutes, where possible, are to be construed so as to sustain their constitutionality. ” Gallivan v. Walker , 2002 UT 89,

881 P.2d 844, 855 (Utah 1994 ). Any extraneous language in Jones that contradicts this reality is hereby disclaimed.Cite as: 2019 UT 35 Opinion of the Court

9 ¶ 87, 54 P.3d 1069 (citation omitted) (internal quotation marks omitted). Therefore, “ if a porti on of the statute might be saved by severing the part that is unconstitutional, such should be done. ” State v. Lopes , 1999 UT 24, ¶ 18, 980 P.2d 191 (citation omitted) (internal quotation marks omitted)

. “[W]e look to legislative intent ” to determine wheth er or not a statutory subsection is severable from the whole scheme. Gallivan , 2002 UT 89, ¶ 88 (citation omitted) (internal quotation marks omitted)

. This means that we examine legislative intent and ask whether the legislature would have intended to enac t the statute with the stricken provision severed. If, as in this case, there is no severability provision in the statute, or, more generally, if the legislature ’ s intent is not expressly stated, we “turn to the statute itself, and examine the remaining co nstitutional portion of the statute in relation to the stricken portion. If the remainder of the statute is operable and still furthers the intended legislative purpose, the statute will be allowed to stand.” Midvale C i ty. Corp. v. Haltom
, 2003 UT 26, ¶ 54, 73 P.3d 334 (citation omitted) (internal quotation marks omitted); see also Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 686 (Utah 1985) (articulating that legislative intent may be determined by asking “whether the remainin g portions of the act can stand alone and serve a legitimate legislative purpose”). ¶18 As discussed above, section 418 of the Malpractice Act mandates that plaintiffs participate in a prelitigation panel after filing their notice of intent . After a would

- be plaintiff has compiled their case and brough t it before the panel, the panel “render[s] its opinion in writing .

. . and determine[s] on the basis of the evidence whether .

. . each claim against each health ca re provider has merit or has no merit.” U TAH C ODE § 78B

- 3

- 418(2)(a)

. Based on this proceeding the panel render s a n opinion on the claimant ’ s case. Fine. However, section 418(2)(b) also provides that “[t]here is no judicial or other review or appeal of the panel’s decision or recommendations.” Therefore, the framework created by the 2010 enactments and amendments, specifically Utah Code section 78B

- 3

- 412(1)(b)

— which makes the certificate of compliance mandatory in order to file a medical malpractice case in court

— and Utah Code section 78B

- 3

- 423( 7)

— which mandates that the courts dismiss all actions in which a certificate of compliance has not been issued

— function to give DOPL the power to finally dispose of claims at the direct expense of the judiciary

. 7 The facts of Ms. Vega’s case have

_____________________________________________________________ 7 P rior to 2010, the fact that the panel opinion could not be reviewed by a court did not create a constitutional problem. (continued

. . .)V EGA v

. J ORDAN V ALLEY M EDICAL Opinion of the Court

10 illustrat ed this constitutional problem with the offending sections of the Malpractice Act

. ¶19 As discussed, s ection 78B

- 3

- 41 2(1)(b) mandates that a plaintiff receive a certificate of compliance from DOPL before initiating a malpractice action in court. If a plaintiff files a malpractice action in court without having received a certificate of compliance from DOPL, “ the malpractice action shall be dismissed.” U TAH C ODE § 78B

- 3

- 423(7) . If this was a mere non

- discretionary prerequisite, and DOPL was simpl y tasked with en suring that Ms. Vega had complied with the statute’s paperwork
, marshalling
, and claims articulation standards, it may have passed constitutional muster. However, DOPL does

— and in Ms. Vega’s case, did

— exercise discretion both in its assessment of the merits of claims at prelitigation panel hearings, and again in its approval or re jection of a claimant’s affidavit of merit. And, because section 412(1) (b) makes it so that a malpractice action “may not be initiated” wi thout a certificate of compliance , and section 423(7) mandates that malpractice action s filed without a certificate of compliance “ shall be dismissed by the court
, ” DOPL’s discretion operates by design in complete insulation from the courts ; the interplay between section 412(1) (b) , section 423(7) , and section 418(2)(b) vests DOPL with the power to hear and determine the f inal disposition of controversies between parties. Th e cumulative action of this statutory regime violates A rticle VIII , section I. ¶20 If there is no review or appeal to the courts , then the ruling of the panel is not a recommendation or an opinion

— it is an

a uthoritative and final ruling on whether a claim has merit. It is a total disposition of a case, outside of the courts, without any standard judicial process or the consent of the parties. A nd a s we said in Salt Lake City v. Ohms , “the ultimate judicial power of entering final judgments” belongs to the courts alone. 881 P.2d 844, 855 (Utah 1994)

. 8 “ T he term j udicial power of courts is generally

Would

- be claimants could still file their actions in court regardless of the determination made by DOPL; Utah Code section 78B

- 3

- 418(2)( b) did not fundamentally abridge the judicial power because the panel’s decision, while not reviewable, did not impact whether a claimant could file in court

.
8 This is different in kind from offering assistance to judges. W hile a judg e “can util ize refere es, court commissioners, and other assistants for various purposes, those persons cannot exercise that (continued

. . .)Cite as: 2019 UT 35 Opinion of the Court

11 understood to be the power to hear and determin e controversies between adverse parties and questions in litigation.” Id . at 849 (internal quotation marks omitted). It is the power to make that final determination that the Malpractice Act vest s unassailably in DOPL. The panel heard Ms. Vega’s case and made a d etermination. And it did so

— by de sign

— in complete isolation from the courts, the proper wellspring of the judicial power. 9 With out judicial review of the panel opinion

— or the ability to file in court regardless of the panel’s determination

— t he panel has exercised the judicial power in

v io lation of Article VIII
, section I

. ¶21 As previously stated, section 423 explains the requirements for a claimant seeking to file an affidavit of merit with DOPL. But what if, as it did here, DOPL finds such an affidavit insufficient? Under Utah Code s ection 78B

- 3

- 423(7)
, “the division may not issue a certificate of compliance for the claimant and the malpractice action shall be dismissed by the court.” And, like the prelitigation panel ’s opinion of merit, there is no review or appeal of this decision. Appellees and amicus curiae make much of the restriction s placed on DOPL in assessing the adequacy of an affidavit of merit

. In their views , DOPL cannot reject a compliant affidavit and cann ot certify a deficient one. No discretion, no problem. But this omits the most important question: who decides whether an affidavit is sufficient or compliant? In this case, DOPL found that Dr. Rosenthal ’s affidavit satisfied sections 423( 2 ) (b)(i) and (ii) of the statutory regime. However, DOPL asserted that Dr. Rosenthal’s affidavit was insufficient because Dr. Rosenthal did not give a satisfactory reason for his opinion in compliance with sect ion 423(2)(b) (iii). Dr. Rosenthal noted that because the record s regarding Mr. Vega’s surgery were inadequate
, he could not give more specific reasons for his opinion. He stated only that “there are reasonable grounds to believe” that the standards of care were breached in Mr. Vega’s case. The ability to determine tha t the quality of his reasoning was

judge ’ s ultimate judicial power, for such is a nondelegable core judicial function.” Ohms , 881 P.2d at 848

.
9 This case is about ul timate authority. Who is it that enforces the judgment of DOPL? It is DOPL exclusively, a nd with authority properly belonging to the courts

. “[C]ore judicial powers include the authority to hear and determine justiciable controversies as well as the au thor ity to enforce any v alid judgment, decree or order. Ohms , 881 P.2d at 849 (citation omitted) (internal quotation marks omitted).V EGA v

. J ORDAN V ALLEY M EDICAL Opinion of the Court

12 inadequate reveals a monumental discretionary grant to DOPL ; the rejection of Dr. Rosenthal’s affidavit was an exercise of a core judicial function by DOPL. ¶22 To be clear, we do not intend to nitpick whether this decision was right or wrong. That is not the problem. Rather we simply highlight the obvious truth: it was a decision to find Dr. Rosenthal’ s statement regarding the reasons for his opinion to be inadequate. Dr. Rosenthal stated that he could not “spe cifically comment on the actions of the Respondents that constitute breaches in the standard of care due to the inadequacy of the medical records

. ” It is unclear why DOPL determined that this is not an adequate reason , or merely a reason , for his opinion a nd therefore not

a satisfactory answer to sub section 423(2)(b) (iii). But even if Dr. Rosenthal’s affidavit was indeed inadequate, the real issue is who gets to make that final determination : DOPL. It may be true that section 418(3) compels DOPL to certify all compliant affidavits. But DOPL shall issue certification only if
, in its own determination
, the plaintiff complied. And its determination is not subject to judicial review or appeal

. This violates our grant of judicial power under Article VIII. ¶23 We understand and appreciate that rising health care costs

are a tremendous problem facing both our state and the nation writ large. So too is it completely within the purview of the legislature to decide how and where to tackle this problem. If, in the le gislature ’ s judgment, frivolous lawsuits are a ma jor contributing factor to increased costs of care, it has the power and prerogative to attempt to mitigate any and all deleterious effects. However, regardless of the wisdom of any such approach, the legisl ature’s solution is still subject to the Utah Constitution, which ves ts judicial power in the courts under A rticle VIII , section I

. This judicial power cannot be abrogated or eliminated by statute

. But that is what the 2010 amendments to the Malpractice Ac t did by empowering DOPL to make final judgments and dispose of claims unbound from and isolated from a judicial check and supervision of its authority. ¶24 Because the Malpractice Act remains operable without section 412(1)(b) and section 423(7)
, we leave intact and find constitutional the rest of the amended statute. We believe that the Malpractice Act as it existed prior to its amendment in 2010 may continue to serve a purpose once Utah Code section 78B

- 3

- 412(1)(b) and Utah Code section 78B

- 3

- 42 3(7) have been excised. However, all of section 423

— the section that outlines the procedures for obtaining an affidavit of merit

— and all language through out the amended act that refers to affidavits of merit must also be found unconstitutional.Cite as: 2019 UT 35 Opinion of the Court

13 As we noted above, in severing the offending portions of a statutory enactment we ask “ whether the remaining portions of the act can stand alone and serve a legitimate legislative purpose

. ” Berry ex rel. Berry v. Beech Aircraft Corp.
, 717 P.2d 670, 686 (Utah 1985) . O nce section 423(7) is removed there is no longer any reason why a claimant would pursue an affidavit of merit. A panel decision finding that a claim is without merit will not stop a plaintiff from filing in court, and so all procedures for securing a certi ficate of compliance via an affidavit of merit will n ever be used. This portion therefore serves no further purpose. The Malpractice Act in its entirety , however, still prescribes us eful noticing procedures
, and the prelitigation panel functions to guide a nd solidify claims before they reach court. We envision this judgment as a partial ret urn to the
pre

- 2010 regime
, in which the prelitigation panel was free to operate in its role as an advisory committee charged with reviewing a plaintiff ’ s action and issuing an opinion as to merit. That opinion remains unreviewable under section 418 but, without sect ion 412(1)(b) and section 423
, the panel ’s review remains merely an opinion and is thereby subservient to the courts ’ power to hear and dispose of a plaint iff’s case

. CONCLUSION ¶25 Arti cle VIII
, section I of the Utah C onstitution vests the judicial power of the state in the Supreme Court “and in such other courts as the Legislature by statute may establish.” The 2010 amendments to the Malpractice Act empower D OPL to hear and dispose of medical malpractice claims on a final non

- appealable basis in violation of Article VIII . We therefore hold that Utah Code section 78B

- 3

- 412(1)(b) and Utah Code section 78B

- 3

- 423 are facially unconstitutional and remand Ms. Vega’s case to the district court to be tried on its merits. Reversed.