This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 76

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH., 

Appellee,

v.

JOAN A. STEED and FRANK J. STEED,

Appellants.

No. 20110441

Filed August 25, 2015

Third District, Salt Lake

The Honorable Robin W. Reese

No. 080922143

Attorneys:

Sean D. Reyes, Att‟y Gen., Brent A. Burnett, Asst. Att‟y Gen., 

Salt Lake City, for appellee

Max D. Wheeler, Rodney R. Parker, Richard A. Van Wagoner, 

Salt Lake City, for appellants

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which 

JUSTICE DURHAM, JUSTICE PARRISH, and JUDGE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part and 

concurring in the judgement.

Having recused himself, JUSTICE HIMONAS does not participate 

herein; COURT OF APPEALS JUDGE JOHN A. PEARCE sat.

 

Justice Parrish sat on this case and voted prior to her resignation 

on August 16, 2015.
STATE v. STEED

Opinion of the Court

2

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶ 1 In this appeal, we are asked to decide the constitutionality of 

Utah‟s Asset Preservation Statute. But in order to reach this issue, we 

must first consider whether Ms. Steed‟s claims are justiciable. 

Generally, if the requested judicial relief cannot affect the rights of 

the parties, the case is moot and we will not hear it. Ms. Steed has 

conceded her claims are technically moot. But she argues that our 

mootness exception applies. Under this exception, we will hear a 

technically moot case if it affects the public interest, is likely to recur, 

and because of the brief time that any one litigant is affected, is likely 

to evade review. We conclude that Ms. Steed‟s claims do not warrant 

the application of this exception, because a freeze order under the 

Asset Preservation Statute is not inherently short in duration and 

thus is not likely to evade review. Because Ms. Steed has conceded 

technical mootness and we conclude that our mootness exception 

does not apply, we dismiss the case. 

Background

¶ 2 The State sought, and received, an order freezing 

$3,118,997.09 of Frank and Joan Steed‟s assets under Utah‟s Asset 

Preservation Statute.1 On October 14, 2008, the district court entered 

a temporary restraining order directing Zions Bank to preserve the 

funds in the Steeds‟ personal and business banking accounts. The 

next day the State filed criminal tax charges against the Steeds. The 

State sought a freeze order to ensure adequate funds would be

available for the anticipated restitution award from the criminal tax 

case. Thereafter, the freeze order was continued as a preliminary 

injunction. In December 2008, the district court conducted an 

additional evidentiary hearing regarding the freeze order, reviewing 

it de novo, and upholding it. The district court also denied the 

Steeds‟ motion to substitute a property bond for the funds under the 

freeze order.

¶ 3 The Steeds were convicted of three counts of failure to file 

tax returns and one pattern count of criminal fraud. Their ultimate 

tax liability, as determined by the State Tax Commission auditors, 

was $247,802. The district court ordered $553,446 of the frozen funds 

be used to pay their tax obligations, penalties, interest, and fines. The 

remainder was returned to the Steeds.

 

1 See UTAH CODE § 77-38a-601. 
Cite as: 2015 UT 76

Opinion of the Court

3

¶ 4 The Steeds filed a motion challenging the constitutionality 

of the Asset Preservation Statute—both facially and as applied. They

contended that the statute violated the takings and due process 

clauses of the Utah Constitution and the Fourteenth Amendment of 

United States Constitution. They argued the statute was 

unconstitutional on its face because it authorized the State to deprive 

them of their personal property prior to filing criminal charges. And

they maintained the statute was also unconstitutional as applied to 

the facts of this case because the State froze more funds than 

necessary to secure future restitution. The Steeds also argued that 

the State had failed to meet its burden under the statute.

¶ 5 The district court denied the motion and entered final 

judgment on August 3, 2011. The Steeds appealed this decision. We 

first heard this case on appeal from the district court‟s decision. After 

oral argument, we remanded the case to the district court for 

preliminary findings of fact and conclusions of law regarding the 

Steeds‟ claim that they suffered “collateral legal consequences” from 

the freeze order sufficient to overcome a mootness challenge. 

Specifically, they argued that they would suffer ongoing harm 

through reduced credibility in future business litigation and harm to 

their business reputation generally. But due to Mr. Steed‟s 

deteriorating health, they conceded the issue of technical mootness. 

The Steeds‟ concession rendered the requested finding of fact on 

remand unnecessary, so we recalled the case. 

Analysis

¶ 6 Because Ms. Steed has conceded that her claim is technically 

moot, we now consider whether her challenge to the freeze order 

meets the exception to our mootness doctrine. “An argument is moot 

[i]f the requested judicial relief cannot affect the rights of the 

litigants.”2 In other words, an appeal is moot if the controversy is 

eliminated such that it renders the relief “requested impossible or of 

no legal effect.”3 Once a court has determined that there is no 

jurisdiction due to the absence of a justiciable controversy, “its 

immediate duty is to dismiss the action.”4

 

2 H.U.F. v. W.P.W., 2009 UT 10, ¶ 21, 203 P.3d 943 (internal 

quotation marks omitted).

3 Utah Transit Auth. v. Local 382 of the Alamgamated Transit Union, 

2012 UT 75, ¶ 14, 289 P.3d 582 (internal quotation marks omitted).

4 Baird v. State, 574 P.2d 713, 716 (Utah 1978).
STATE v. STEED

Opinion of the Court

4

¶ 7 Before we will address an issue that is technically moot, it 

must (1) affect the public interest, (2) be likely to recur, and (3)

because of the brief time that any one litigant is affected, be likely to 

evade review.5 The third element is dispositive in this case. 

¶ 8 We note that in the past we have been somewhat loose in 

our articulation of the third element of our mootness exception. We 

have described this element in two different ways, as requiring the 

issue to be (1) “capable of evading review” and (2) “likely to evade 

review.”6 Upon reflection we have concluded that the “capable of 

evading review” articulation of the third element is overly broad. We 

therefore clarify that the proper articulation of our standard is the 

one used herein—“likely to evade review.” We disavow any 

language in our prior cases stating otherwise.

¶ 9 Issues that are likely to evade judicial review are those that 

are inherently short in duration such that a court will likely be 

unable to hear the issue when it still presents a live controversy.7 In 

Local 382, we noted “such rapidly resolving issues” include “election 

matters, closed political meetings, bar admissions, and abortion 

cases.”8 Unlike these rapidly resolving issues, a freeze order under 

the statute in question remains in place until the resolution of the 

criminal matter and is not lifted until the court acts, either to order 

funds paid in restitution to the State, to return funds to the 

defendant, or both. While in some instances the criminal matter 

could resolve quickly and thus render a freeze order incapable of 

review, there will no doubt also be cases where judicial review is 

possible while the controversy is live, as we explain below. 

 

5 Local 382, 2012 UT 75, ¶¶ 29−30.

6 See, e.g., McBride v. Utah State Bar, 2010 UT 60, ¶¶ 13, 15, 

242 P.3d 769 (internal quotation marks omitted).

7 See, e.g., Navajo Nation v. State (In re Adoption L.O.), 2012 UT 23, 

¶ 10, 282 P.3d 977 (“The types of issues likely to evade review are 

those that are inherently short in duration so that by the time the 

issue is appealed, a court is no longer in a position to provide a 

remedy.” (internal quotation marks omitted)).

8 2012 UT 75, ¶ 37 (footnotes omitted) (citing Ellis v. Swensen, 

2000 UT 101, ¶ 27, 16 P.3d 1233; Kearns—Tribune Corp. v. Salt Lake 

Cnty. Comm’n, 2001 UT 55, ¶¶ 32−33, 28 P.3d 686; McBride, 

2010 UT 60, ¶ 15; McRae v. Jackson, 526 P.2d 1190, 1191 (Utah 1974)).
Cite as: 2015 UT 76

Opinion of the Court

5

¶ 10 Ms. Steed argues that freeze orders under the Asset 

Preservation Statute are likely to evade review because defendants 

will not prioritize challenging a civil freeze order over their criminal 

defense. According to Ms. Steed, challenging a freeze order would 

require a defendant to spend limited resources—further limited by 

the freeze order itself—to challenge the civil freeze order while 

diverting resources from the defense of criminal tax charges. As a 

result, she argues, defendants will not pursue a civil matter when 

criminal charges are pending. 

¶ 11 In determining whether an issue is inherently short in

duration, we have traditionally focused on whether the issue itself 

was of a rapidly resolving nature (and therefore likely to evade 

review), and not on whether the issue is likely to evade review by 

virtue of collateral choices future parties are likely to make.

9 For 

 

9 See, e.g., Gregory v. Shurtleff, 2013 UT 18, ¶ 12 n.5, 299 P.3d 1098 

(“Since mootness is a characteristic of a dispute between parties 

rather than a characteristic of the parties themselves, an exception to 

the usual prohibition on considering moot questions will hinge on 

the nature of the dispute.”); Ellis, 2000 UT 101, ¶ 27; Kerns—Tribune 

Corp., 2001 UT 55, ¶¶ 32−33. We note, however, that in McBride we 

departed from our traditional approach, applying our mootness 

exception to an issue that was inherently short in duration, not 

because the issue itself was one that would rapidly resolve, but 

because of the decisions those affected by the issue in the future 

would likely make. 2010 UT 60, ¶ 15. 

In that case, we considered a challenge to the Utah Bar‟s 

administration of the bar exam. Id. ¶ 11. While a flawed bar exam 

may be challenged at any point within the applicable statute of 

limitations, we found the issue inherently short in duration and thus 

likely to evade review. We did so because it was unlikely that future 

applicants would choose to challenge their bar exam results through 

potentially lengthy litigation rather than simply retaking the bar,

which they could do as soon as six months after a failed attempt. Id.

¶ 15. Therefore, the likely choice of future litigants to simply take the 

bar created only a six-month window for an appeal. Id.; see also Local 

382, 2012 UT 75, ¶ 37 n.22 (“[S]ince the bar exam is offered every six 

months a challenge to the bar‟s examination procedures was capable 

of escaping review „[b]ecause it [wa]s highly unlikely, if not 

impossible, that a claim such as this could be litigated from start to 

finish in a six month period of time.‟” (second and third alterations 

in original) (quoting McBride, 2010 UT 60, ¶ 15)). 

(Continued)
STATE v. STEED

Opinion of the Court

6

instance, in Ellis v. Swensen, we looked to the inherently short 

pendancy of the issue presented. In that case, we held that a 

challenge to the wording of election ballots met this element of our 

mootness exception “because sample ballots do not have to be 

produced until seven days before the election.”10

¶ 12 In In re Adoption of L.O., we also focused on the short 

duration of the issue itself. In that case, the parties disputed which

entity had jurisdiction over the adoption of an Indian child under the 

Indian Child Welfare Act—the State or the Navajo Nation.11 The 

issue was mooted, however, when the Navajo Nation consented to 

the child‟s adoption.12 The Navajo Nation argued that the “dismissal 

of the appeal on mootness grounds would effectively punish the 

Navajo Nation for acting in the child‟s best interests and consenting 

to the adoption before the appeal was fully resolved.”13 But we held

the case was moot because the “decision [to consent to the adoption] 

does not establish that any jurisdictional disputes over 25 U.S.C. 

§ 1911 will affect the interests of the parties for only a brief time.”14

 

While noting this alternative analysis, we apply in the case now 

before us our traditional analysis under the third element of our 

mootness exception—focusing on the rapidly resolving nature of the 

issue itself and not on the likely choices of future litigants. But under 

either measure, the Steeds have not satisfied the third element of our 

mootness exception.

Justice Lee argues in his concurrence that we should overrule 

McBride. Infra ¶ 20. We decline to do so, however, because neither 

party has asked us to overrule the case nor argued that it applies in 

the manner that Justice Lee suggests. “Those asking us to overturn

prior precedent have a substantial burden of persuasion.” State v. 

Menzies, 889 P.2d 393, 398 (Utah 1994). We should tread cautiously in 

overruling precedent and this is especially true where the parties 

have failed to brief or even argue that a particular precedent should 

be overruled. See State v. Baker, 2010 UT 18, ¶ 57, 229 P.3d 650 

(declining to resolve an issue “without the benefit of adversarial 

briefing on the subject”).

10 2000 UT 101, ¶ 27.

11 2012 UT 23, ¶¶ 3−4. 

12 Id. ¶ 5.

13 Id. ¶ 10 (internal quotation marks omitted).

14 Id. ¶ 11.
Cite as: 2015 UT 76

A.C.J. LEE, concurring

7

¶ 13 While it may be difficult or even impossible for some 

defendants, such as the Steeds, to both defend against criminal 

prosecution and simultaneously challenge a freeze order, that does 

not make the freeze order itself inherently short in duration. We are 

confident there will be cases where defendants with adequate 

resources and motivation will have ample time to challenge a live 

freeze order and fully litigate the issue. Indeed, the freeze order in 

this case demonstrates that these orders can persist long enough to 

be challenged. The order affecting the Steeds‟ rights was in place for 

more than two years, and they had at least two routes to challenge it.

They could have sought certification of the freeze order as final15 or 

sought permission to file an interlocutory appeal.16

¶ 14 We conclude that freeze orders under the Asset Preservation 

Statute are not “inherently short in duration” so as to “likely evade 

review”; and therefore, a claim challenging such an order does not 

satisfy the third element of our exception to the mootness doctrine. 

Because this requirement is not met, our exception to the mootness 

doctrine is not satisfied.

Conclusion

¶ 15 We conclude that the case is moot and that our mootness 

exception does not apply. In the absence of a controversy directly 

affecting the rights of the litigants, we decline to address the issues 

presented and dismiss the case. 

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring in 

the judgment:

¶ 16 I concur in the majority‟s decision dismissing this matter on 

mootness grounds, and also in much of its analysis. Specifically, I 

agree that Joan Steed‟s claim does not qualify under the exception to 

the mootness doctrine because a challenge to the question of the 

legality of a freeze order is not one of those matters that are so 

“inherently short in duration” that they naturally evade judicial 

review. Supra ¶ 1. I also applaud the court‟s decision to pare back on 

overbroad dicta in our prior cases in this area. For reasons explained 

by the majority, we have painted with too broad a brush to the 

extent we have spoken of a matter that is merely “capable of evading 

review.” See supra ¶ 8 (internal quotation marks omitted). It is an 

 

15 See UTAH R. CIV. P. 54(b).

16 See UTAH R. APP. P. 5.
STATE v. STEED

A.C.J. LEE, concurring

8

important step in the right direction to clarify that mere capability is 

not enough, and that a high likelihood of evading review is 

necessary.

¶ 17 That clarification, moreover, is no mere matter of judicial 

policymaking. As we noted in Utah Transit Authority v. Local 382 of 

the Amalgamated Transit Union, the mootness doctrine is not “a mere 

matter of convenience or judicial discretion.” 2012 UT 75, ¶ 27, 289 

P.3d 582. It is a “constitutional principle” defined by an 

understanding of the nature of the judicial power. Id.; see also id. ¶ 18 

(“[Mootness] doctrine is an element of the principles defining the 

scope of the ‟judicial power‟ vested in the courts by the Utah 

Constitution.”). Thus, the mootness bar is rooted in the longstanding 

prohibition on the issuance of advisory opinions.17 Our courts have 

long eschewed that practice. And, as we noted in Local 382, the 

framers of the Utah Constitution expressly rejected a provision that 

would have authorized it. Id. ¶ 21. Those facts are significant, as a 

moot controversy asks the court to issue an opinion that is merely 

advisory (without any “meaningful impact on the practical positions 

of the parties”). Id. ¶ 24. 

¶ 18 These insights are important. For me they suggest the need 

to limit exceptions to the mootness doctrine to those that are 

embedded in historical judicial practice. The traditional exception—

for matters capable of repetition but evading review—seems to be 

such an exception; it has been accepted for many decades in a long 

line of cases.18 I would accept that exception on stare decisis grounds. 

But I see no similar basis for the “alternative” approach we created 

in McBride v. Utah State Bar, 2010 UT 60, 242 P.3d 769. Supra ¶ 11 n.9.

That standard is of much more recent vintage; and it is not deserving 

of stare decisis respect for reasons explained below.

 

17 See, e.g., Cedar Mountain Envtl., Inc., v. Tooele Cnty. ex rel. Tooele 

Cnty. Comm’n, 2009 UT 48, ¶ 26, 214 P.3d 95 (“The mootness doctrine 

stems from the general principle that courts should not issue 

advisory opinions . . . .”); see also McRae v. Jackson, 526 P.2d 1190, 

1191 (Utah 1974) (“[Q]uestions or cases which have become moot or 

academic are not a proper subject to review.”); Baird v. State, 574 P.2d 

713, 715 (Utah 1978) (“[C]ourts are not a forum for hearing academic 

contentions or rendering advisory opinions.”).

18 See S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 

498, 515 (1911) (recognizing “capable of repetition, yet evading 

review” exception to mootness).
Cite as: 2015 UT 76

A.C.J. LEE, concurring

9

¶ 19 I write separately because I disagree with the majority‟s

treatment of the McBride decision. The McBride standard—extending 

the mootness exception “to an issue that was inherently short in 

duration, not because the issue itself was one that would rapidly 

resolve, but because of the decisions those affected by the issue in the 

future would likely make” supra ¶ 11 n.13—is troubling. It is more 

an expression of a preference for reaching the merits of an issue in a 

particular case than the application of a longstanding historical 

exception. The McBride decision, moreover, seems difficult to 

reconcile with the majority‟s analysis in this case. With McBride on 

the books, Ms. Steed has a strong argument for an exception to the 

mootness doctrine.

¶ 20 I would overrule McBride, as I see it as incompatible with 

the longstanding prohibition on advisory opinions except in cases 

where the issue in question is one that evades review by its nature. 

As the majority indicates, the “traditional” formulation of the 

exception to the mootness doctrine focuses on the inherent nature of 

the issue presented. Supra ¶ 11. Under that standard, the McBride

case should have been dismissed as moot. 

¶ 21 McBride filed suit to challenge the Utah State Bar‟s refusal to 

grade a bar exam that he failed to upload in accordance with rules 

prescribed by the bar. While his suit was pending, however, McBride 

retook the bar exam and passed it. McBride, 2010 UT 60, ¶ 11. That 

rendered McBride‟s legal challenges to the bar‟s earlier action moot. 

Id. ¶ 14 (acknowledging that “[t]he issues Mr. McBride presents are 

moot” given that he had “retaken and passed” the bar exam and had 

“been admitted to the Bar”). Yet the McBride court reached the merits 

of his case anyway; it did so not because a claim like McBride‟s was 

by its nature too rapidly resolving to be adjudicated in the ordinary 

course, but because such a claim could be mooted by a litigant‟s 

voluntary actions—because “an aggrieved applicant could retake the 

[Bar exam] and be admitted to the Bar before the issue could be 

litigated.” Id. ¶ 15. 

¶ 22 The prospect of an issue being mooted by a litigant‟s 

voluntary action is not a basis for an exception. None of this court‟s 

prior decisions—or any of the longstanding cases from other 

jurisdictions after which our cases are patterned—sustain an 

exception under these circumstances. A litigant‟s voluntary action is 

not a basis for an exception; it is a classic mooting event.19

 

19 See, e.g., Phoenix Indem. Ins. Co. v. Smith, 2002 UT 49, ¶ 3, 48 P.3d 

976 (“[W]here the actions of the parties themselves cause a settling of 

(Continued)
STATE v. STEED

A.C.J. LEE, concurring

10

¶ 23 If the mere possibility that a litigant “could” take action 

mooting a case is enough, the exception will become the rule. That 

has never been the law. McBride was thus an outlier. It should be 

overruled because it authorized the use of judicial power in a case 

that was moot and not within an historically recognized exception to 

the doctrine of mootness. 

¶ 24 It is one thing to exercise judicial power to address the 

merits of an issue that is so inherently short in duration that judicial 

review is necessarily evaded. A decision in those circumstances can 

be justified on the ground that it is rooted in longstanding judicial 

practice. That cannot be said of the “alternative” exception applied 

in McBride, however. And without any historical basis for exercising 

judicial power over cases that were voluntarily mooted by the 

actions of the litigants, the court exceeds its power under article VIII 

of the Utah Constitution. 

¶ 25 I would decide this case on that basis. I would overrule 

McBride and conclude that this case is moot because the issues raised 

are not so inherently short in duration that they evade judicial 

review.

¶ 26 The majority comes close to this same decision. It 

characterizes the historically rooted exception as the “traditional” 

one, speaks of the McBride formulation as a mere “alternative,” and 

applies only the “traditional analysis” in “focusing on the rapidly 

resolving nature of the issue itself and not on the likely choices of 

future litigants.” Supra ¶ 11 n.9. 

¶ 27 Yet the court stops short of overruling McBride. That is 

perhaps understandable.20 Our past decisions are entitled to respect 

 

their differences, the case becomes moot, and an appeal will be 

dismissed as moot where the matter raised was settled by 

agreement, such as by . . . . voluntary dismissal of a claim.” (internal 

quotation marks omitted) (second alteration in original)); see 

generally Utah Transit Auth. v. Local 382 of the Amalgamated Transit 

Union, 2012 UT 75, 289 P.3d 582 (question of the right to arbitrate 

failed negotiations under a collective bargaining agreement mooted 

by parties‟ successful negotiation of new agreement before legal 

dispute had been resolved).

20 I see no barrier to overruling McBride, however, based on the 

fact that “neither party has asked us” to do so. Supra ¶ 11 n.9. 

Adversary briefing is always preferable, of course. All things being 

equal, we would undoubtedly benefit from briefing on the grounds 

(Continued)
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A.C.J. LEE, concurring

11

under the doctrine of stare decisis. But that doctrine is not an ironclad 

rule but a general presumption. See Eldridge v. Johndrow, 2015 UT 21, 

¶ 22, 345 P.3d 553. And the presumption is rebuttable, as in 

circumstances where the decision in question is unworkable, and 

thus does not sustain significant reliance interests. See id. (explaining 

that presumption may be rebutted depending on “the age of the 

precedent, how well it has worked in practice, its consistency with 

other legal principles, and the extent to which people‟s reliance on 

the precedent would create injustice or hardship if it were 

overturned”). The exception seems fitting here, as the McBride

formulation seems difficult to apply with any precision, and its 

preservation seems more likely to result in arbitrariness than 

consistency.

¶ 28 The majority‟s treatment of McBride illustrates the point. 

Although the court does not apply the McBride standard explicitly, it 

suggests that “the Steeds have not satisfied the third element of our 

mootness exception” “under either measure” (i.e., the “traditional” 

or “alternative” approach). Supra ¶ 11 n.9. But the court never 

explores the point in any detail. And a careful comparison of this 

case to McBride suggests that the two are close parallels—and thus 

that the McBride exception is applied unpredictably.

¶ 29 As to McBride, it seems to me to overstate things to say that 

it is “unlikely that future applicants would choose to challenge their 

bar exam results through potentially lengthy litigation rather than 

simply retaking the bar.” Supra ¶ 11 n.9. The difficulty and cost 

(economic and psychic) of taking the bar exam is a substantial 

barrier. And there is by no means a guarantee that one who fails the 

 

for overruling one of our opinions. But that question is not an issue

we require to be preserved or presented before we may reach it. Cf. 

supra ¶ 11 n.9 (citing State v. Baker, 2010 UT 18, ¶ 57, 229 P.3d 650, for 

the proposition that an issue should not be resolved “without the 

benefit of adversarial briefing on the subject”). The issue on appeal is 

whether the case presents a live controversy sustaining our exercise 

of judicial power. We may resolve that issue by reference to any and 

all authorities we find relevant—including any that are not cited by 

the parties, or any that are cited but are susceptible to overruling. We 

have exercised such power before. The majority, in fact, exercises a 

species of such authority here—in repudiating a formulation of the 

mootness exception for issues “capable of evading review.” Supra 

¶ 8. I would take the matter a step further in repudiating the 

exception set forth in McBride.
STATE v. STEED

A.C.J. LEE, concurring

12

exam the first time will pass on a second attempt. Exhibit “A” is the 

existence of non-moot suits challenging the decisions of bar 

examiners.21 People sue over bar exams because they are not anxious 

to go through the ordeal again. And for that reason we cannot 

reasonably conclude that decisions regarding a bar exam are “likely 

to evade review” even under the standard articulated in McBride. 

Contra Supra ¶ 11 n.9.

¶ 30 With McBride on the books, moreover, Steed has a good 

argument for an exception to the mootness bar on advisory opinions. 

If the mere prospect that a litigant could choose to retake the bar 

exam is enough to sustain an exception, then the possibility that a 

litigant might find it difficult to defend against a criminal charge 

while also challenging a freeze order may also be enough. The 

dilemma faced by the Steeds seems at least as difficult as that facing 

McBride.22

¶ 31 The majority does not conclude otherwise. It simply says 

that it is “confident there will be cases where defendants with 

adequate resources and motivation will have ample time to 

 

21 See, e.g., In re Ivy, No. 7474, 1983 WL 807638, at *2 (Alaska Dec. 

7, 1983) (rejecting petitioner‟s procedural and substantive due 

process claims after she had failed the bar exam on consecutive 

administrations); Griffin v. Miss. Bd. of Bar Admissions, 113 So. 3d 

1257, 1258, 1261 (Miss. 2013) (rejecting petitioner‟s equal protection 

challenge to the Mississippi bar after he failed the bar multiple times, 

having attempted to pass it since 1992); Koerner v. Tenn. Bd. of Law 

Exam’rs, No. 3-11-0707, 2012 WL 642745, at *6 (M.D. Tenn. Feb. 28, 

2012) (granting summary judgment to defendant after plaintiff failed 

bar exam three times and argued that requirement that preparation 

for fourth try be supervised by a state licensed attorney violated 

ADA and Equal Protection Clause); Kelly v. W. Va. Bd. of Law 

Exam’rs, No. 2:08-00933, 2010 WL 9921505, at *16 (S.D.W. Va. April 

16, 2010) (rejecting plaintiff‟s ADA, equal protection, and due 

process claims after he had failed the bar exam twice and his 

requested accommodations were not granted). 

22 Perhaps it‟s true that Steed has not formulated her reliance on 

McBride in these precise terms. See supra ¶ 11 n.9 (asserting that 

“neither party has . . . argued that [McBride] applies in the manner”

articulated here). But she cited the case extensively in her briefs, and 

my analysis here captures the essence of her argument. In all events, 

we are hardly limited to the precise terms of the parties‟ analysis. We 

may—must—engage in our own evaluation.
Cite as: 2015 UT 76

A.C.J. LEE, concurring

13

challenge a live freeze order and fully litigate the issue.” Supra ¶ 13. 

That is undoubtedly correct. But this analysis does not distinguish 

McBride. A parallel point could be made as to a challenge to the bar 

exam; there are cases where bar examinees have adequate resources 

and motivation to challenge the bar exam. 

¶ 32 For these reasons, I see little distinction between this case 

and McBride. To dismiss this case as moot, we should overrule 

McBride instead of proffering an unpersuasive ground for 

distinguishing it. By preserving the McBride exception, we invite 

arbitrariness in future cases. I would avoid that problem by 

overruling a decision that lacks an historical basis in the traditional 

exercise of the judicial power.