This opinion is subject to revision before final

p ublication in the Pacific Reporter

2015 UT 76

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

S TATE OF U TAH
., Appellee

,

v.

J OAN A. S TEED and F RANK J. S TEED
,

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, Rodne y R. Parker, Richard A. Van Wagoner,

Salt Lake City, for a ppellants

C HIEF J USTICE D URRANT authored the opinion of the Court, in which
J USTICE D URHAM
, J USTICE P ARRISH
, and J UDGE P EARCE joined.

A SSOCIATE C HIEF J USTICE L EE filed an opinion concurring in part and

concurring in the judgement

. Having recused himself

, J USTICE H IMONAS does not participate
herein; C OURT OF A PPEALS J UDGE J OHN A. P EARCE sat.

Justice Parrish sat on t his case and voted prior to her resignation

on August 16 , 2015.S TATE v

. S TEED

Opinion of the Court

2 C HIEF J USTICE D URRANT , 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, th e 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 r ecur, 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 inher ently 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 freez in g $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 r estraining order directing Zion s Bank to preserve the funds in the Steeds‟ personal and business banking accounts. The next day the State filed criminal tax charge s 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 p reliminary injunction. In December 2008, the district court conducted an additional evidentiary hearing regarding the freeze order, reviewing it de novo, and upholding it. The distric t court also denied the

Steeds‟ motion to substitute a pr operty 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 cri minal fraud. Their ultimate tax liability, as determined by the State Tax Commission auditors, was $247, 8 02. 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 U TAH C ODE § 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 Preservatio n 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 fa ce because it authorized the State to deprive them of their personal property prior to filing criminal charges . A nd 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 bur den 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 c ase to the district court for preliminary finding s of fact and conclusions of law regarding the Steeds‟ claim that they suffered “collateral legal consequences” from

t he freeze order sufficient to overcome a mootness chall enge. Specifically, they argued that they would suffer ongoing harm through reduced credibility in future business litigation and harm to their business reputation generally

. B ut due to Mr. Steed‟s

det eriorating health, they conceded the issue of technical mootness. The Steeds‟ concession rendered the requested findin g 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 i s eliminated su ch 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).S TATE v

. S TEED

Opinion of the Court

4 ¶ 7 Before w e 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 lit igant i s 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 t o evade

review.” 6 Upon reflection we have concluded that the “capable of evading review” articulation of th e 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 inherentl y short in duration such that a court will likely be unable to hear the issue when it still presents a live controvers y. 7 In

Local 382 , we noted “ such rapidly resolving issues ” in clude “ election matters, closed political meetings, bar admissions, and abortion

cases.” 8 Unlike the se rapidly resolving issues, a freeze order under the statute in question remain s in place unti l the resolution of t he
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 re nder a freeze order incapable of

review , ther e 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

issu e 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 , 2 001 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 r eview because defendants will not prioritize challen ging a civil freeze order over their criminal defense. According to Ms. Steed, challenging a freeze order would require a defendant to spe nd limited resources

— further limited by

the freeze order itself

— to challenge the civil freez e 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 evad e review), and not on whether the issue is likely to evade review by virtue of collateral choices future parties are like ly 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

becaus e 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 cho ose 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

38 2 , 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 peri od of time.‟ ” (second and third alterations in original) (quoting McBride , 2010 UT 60, ¶ 15)). (Continued)S TATE v

. S TEED

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 I n 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 T he

is sue 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 interest s and conse nting 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 jurisdict ional disputes over 25 U.S.C.
§ 1911 will affect the interests of the partie s for only a brief time.” 14

While noting this alternative anal ysis, 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, th e 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 tha t it applies in the manner that Justice Lee suggests. “T hose 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 esp ecially 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 7 6

A.C.J. L EE , 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 challen ge a live

freeze order and fully litigate the issue. Indeed, th e freeze order in this case demonstrates that these orders can persist long enough to be challenged. T he order affecting the St eed s ‟ rights was in place for more than two years, and they had at least two routes to ch allenge it. They could have sought certi ficati on of the freeze order as final 15 or sought permission to file an inter locutory appeal. 16

¶ 14 We conclude that f reeze order s 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 n ot satisfy the third element of our exception to the mootness doctrine. Because this requirement is not met, our exception to the moot ness doctrine is not satisfied.

Conclusion

¶ 15 W e conclude th at the case is moot and that our mootness exception does not apply. In the absence of a controversy directly affecting the rights of the lit igants, we decline to address the issues presented and dismiss the case

.

A SSOCIATE C HIEF J USTICE L EE
, 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 t he 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 case s 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 U TAH R. C IV

. P. 54 (b).

16 See U TAH R. A PP

. P. 5.S TATE v

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A.C.J. L EE , 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 Auth ority v. Local 382 of

th e 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. ; s ee al so 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

w ould 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 . ¶ 2 4

. ¶ 18 These insights are impo rtant. 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 ha s 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 Envt l. , 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 moo t 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. L EE , concurring

9 ¶ 19 I write separately b ecause I disagree with the majority‟s

treatment of the McBride decision. The McBride standard

— extending

the moo tness 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 ca se. 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 questi on 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 h ave been dismissed as moot.

¶ 21 McBride filed suit to challenge the Utah State Bar‟s refusal to grade a b ar exam that he failed to upload in accordanc e with rules prescribed by the b ar. While his suit was pending, however, McBride

retook the b ar exam and passed it. McBride

, 2010 UT 60, ¶ 11. That

rendered McB ride‟s legal challenges to the b ar‟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 B ar ” ). 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 [ B ar 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)S TATE v

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A.C.J. L EE , 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 authoriz ed 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 hi storical 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 diff erences, 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 U tah T

ransit A uth

. 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 undoubte dly benefit from briefing on the grounds (Continued)Cite as: 2015 UT 76

A.C.J. L EE , 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 consistenc y 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 st andard 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 thin gs 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

th e 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 re ference 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

.S TATE v

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A.C.J. L EE , 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 b ar 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 peti tioner‟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

. V a. Bd. of Law

Exam’rs

, No. 2:08

- 00933, 2010 WL 9921505 , at *16 (S.D.W. V a . 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. L EE , concurring

13 challenge a live freeze order and fully litigate the issue.” Supra ¶ 1 3

. That is undoubtedly correct. But this analysi s 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 thi s 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

ove rruling a decision that lacks an historical basis in the traditional exercise of the judicial power.