This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 27

IN THE

SUPREME COURT OF THE STATE OF UTAH

SALT LAKE COUNTY, DUCHESNE COUNTY, UINTAH COUNTY,

WASHINGTON COUNTY, and WEBER COUNTY, political subdivisions 

of the State of Utah,

Appellants,

v.

STATE OF UTAH, DELTA AIR LINES, INC.,

and SKYWEST AIRLINES, INC.,

Appellees.

No. 20180586

Heard May 6, 2019

Filed May 18, 2020

On Direct Appeal

Third District, Salt Lake

The Honorable Kara Pettit

No. 170904525

Attorneys:

Sim Gill, Darcy M. Goddard, Timothy Bodily, Bradley C. Johnson, 

Jacque M. Ramos, Salt Lake City, for appellant Salt Lake County

Tyler C. Allred, Duchesne, for appellant Duchesne County

Jonathan A. Stearmer, Vernal, for appellant Uintah County

Eric W. Clarke, Brian R. Graf, St. George, for appellant 

Washington County

Courtlan P. Erickson, Ogden, for appellant Weber County

David N. Wolf, Laron Lind, Andrew Dymek, Salt Lake City,

for appellee State of Utah

Gary R. Thorup, James D. Gilson, David L. Arrington, 

Cole P. Crowther, Salt Lake City, for appellees Delta Air Lines, 

Inc. and SkyWest Airlines, Inc.
SALT LAKE COUNTY v. STATE

Opinion of the Court

2

CHIEF JUSTICE DURRANT authored the opinion of the Court, in 

which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,

JUSTICE PEARCE, and JUSTICE PETERSEN joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 Salt Lake, Duchesne, Uintah, Washington, and Weber 

Counties (Counties) filed a lawsuit against the State of Utah, 

challenging several provisions of the Utah Tax Code as 

unconstitutional (Challenged laws).

1 The district court dismissed 

two of the Counties’ claims as unripe because the allegations in 

their complaint did not show they had been adversely affected by 

the tax code provision at issue. The court then dismissed the 

Counties’ remaining claims for a failure to exhaust administrative 

remedies because the Counties had not first filed an appeal of a tax 

assessment with the Utah State Tax Commission. Because none of 

the Counties’ claims presents a justiciable controversy, we affirm 

the district court’s decision.

¶2 The district court properly dismissed the Counties’ claims 

on ripeness grounds. Under our ripeness doctrine, courts should 

resolve legal issues only where the resulting legal rule can be 

applied to a specific set of facts, thereby resolving a specific 

controversy. Although the Counties cite evidence outside their 

pleadings to suggest that the tax code provision at issue had 

already adversely affected them, they have not incorporated this 

evidence into their complaint. So their complaint is facially 

insufficient to show that the dismissed claims were ripe. 

Accordingly, we affirm the district court’s dismissal of the two 

claims dismissed on ripeness grounds.

¶3 Further, we affirm the district court’s dismissal of the 

Counties’ remaining claims because those claims are best viewed 

as requests for an advisory opinion—something we do not provide. 

According to the Counties, their claims “do not arise from a specific 

tax assessment challenged, unchallenged, or forgone.” And they do 

not “depend upon averments of particular assessments to maintain 

this action.” Instead, their claims “are structurally based and stem 

from the Challenged laws’ enactment and unconstitutional 

__________________________________________________________

1 Delta Air Lines, Inc. and SkyWest Airlines, Inc. (Airlines) 

intervened as defendants in the district court.
Cite as: 2020 UT 27

Opinion of the Court 

3

assessment[-]mandated methodology.” In other words, the 

Counties’ purpose in turning to the judiciary in this case is to obtain 

a judicial declaration that the Challenged laws are unconstitutional 

in the abstract. Because we have “no power to decide abstract 

questions or to render declaratory judgments[] in the absence of an 

actual controversy directly involving rights,”2 we affirm the district 

court’s dismissal of the Counties’ remaining claims.

Background

¶4 Generally, an individual’s property tax obligation is 

determined by the county assessor for the county in which the 

person’s property is located. But where a business operates in more 

than one county, the Utah Tax Code provides that its property tax 

obligation is determined by a central assessor, the state tax 

commission. In 2015, the Utah legislature amended portions of 

Utah’s tax code that establish the methodology for determining the 

property tax obligations of airlines operating within the state. Three 

of the amended tax provisions are relevant in this case.

¶5 First, the legislature enacted Utah Code section 59-2-201(4) 

(Valuation law). The Valuation law provides that the value of an 

aircraft is based on the Airliner Price Guide, an airline industry 

pricing publication.3 But the statute says that the tax commission 

may use an alternative valuation method where it has “clear and 

convincing evidence that the aircraft values reflected in the aircraft 

pricing guide do not reasonably reflect fair market value of the 

aircraft.”4 Additionally, the Valuation law provides for an 

incremental downward “fleet adjustment” in the value of every 

aircraft, after the first three, owned by an airline.5

¶6 The Counties brought a number of facial and as-applied 

challenges to the constitutionality of the Valuation law. In the first 

and second claims of their complaint, they argue that the Valuation 

law’s “clear and convincing evidence” standard violates article 

XIII, section 2(1) of the Utah Constitution, which states that “all

tangible property in the State that is not exempt” shall be “assessed 

at a uniform and equal rate in proportion to its fair market value” 

__________________________________________________________

2 Univ. of Utah v. Indus. Comm’n of Utah, 229 P. 1103, 1104 (Utah 

1924).

3 UTAH CODE § 59-2-201(4)(b)(ii).

4

Id. § 59-2-201(4)(d).

5

Id. § 59-2-201(4)(c).
SALT LAKE COUNTY v. STATE

Opinion of the Court

4

(uniformity clause). The Counties claim the “clear and convincing 

evidence” standard violates the uniformity clause because, where 

the values listed in the Airliner Price Guide differ from fair market 

value, it creates a higher bar for assessing property at a fair market 

value than is established for other types of property. The Counties 

allege that for other types of property, the tax commission “must 

only meet a preponderance of the evidence standard in establishing 

fair market value.” They also argue that it prevents the tax 

commission from determining the fair market value of aircraft 

property.

¶7 In the Counties’ third and fourth claims, they argue that 

the Valuation law’s “fleet adjustment provision” violates the 

uniformity clause because it provides for a property tax discount 

applicable only to airlines, and because it prevents the tax 

commission from assessing the value of aircraft at fair market 

value.

¶8 Finally, in the Counties’ fifth and sixth claims, they 

challenge the Valuation law for violating the constitution’s 

delegation of authority over tax assessments to the tax commission. 

They claim that by requiring the tax commission to use the 

valuations provided in outside pricing guides, the legislature has 

unconstitutionally delegated tax commission authority to the 

publishers of those pricing guides. They also argue that the 

Valuation law violates the constitution’s separation-of-powers 

provisions because it impermissibly allows the legislature to exert 

authority over an executive agency’s responsibility—the 

responsibility of assessing property tax obligations.

¶9 The district court dismissed all of the Counties’ claims 

related to the Valuation law because “administrative appeals that 

remain pending” could “obviate the need to reach some of the 

as-applied constitutional questions raised by the Counties.”6 This 

was so, the court explained, because the tax commission could, 

“upon clear and convincing evidence,” “apply an alternative 

method for valuation of aircraft.” And, according to the court, the 

result of the tax commission proceedings could be a property tax 

assessment that corresponds with the property’s “fair market 

value,” in which case the Valuation law would not harm the 

Counties. The court also found that “the determination of fair 

__________________________________________________________

6 All the dismissals at issue in this case were made without 

prejudice.
Cite as: 2020 UT 27

Opinion of the Court 

5

market value and whether the airline property is undervalued 

under the Valuation . . . Law[] are factual findings that underlie the 

Counties’ constitutional claims,” so tax commission proceedings 

would “be useful to better frame the constitutional claims that may 

not be obviated by the Commission’s determinations.” The 

Counties appeal this determination as to their uniformity clause 

claim regarding the “clear and convincing evidence” standard (first 

claim), their uniformity clause claim regarding the “fleet 

adjustment” provision (third claim), and their 

separation-of-powers claim (sixth claim).7

¶10 The legislature also enacted Utah Code section 59-2-804 

(Allocation law). The Allocation law provides a formula for 

determining an airline’s property tax obligation to the State of 

Utah.8 Because most aircraft do not remain permanently in any one 

state, Utah imposes property taxes only for the time in which the 

aircraft is in the state. This tax obligation is calculated as a 

percentage of the entire value of the airline’s property according to 

the formula provided by the Allocation law.

¶11 In their seventh and eighth claims, the Counties argue that 

the Allocation law violates article XIII’s uniformity clause and the 

provision mandating that property tax should be assessed to any 

non-exempt property. They argue that it is unconstitutional 

because, if the Allocation law were applied uniformly by every 

state, a certain percentage of the value of an airline’s property 

would escape taxation.

¶12 As it did with the Valuation-law-related claims, the district 

court dismissed the Counties’ Allocation-law-related claims for a 

failure to exhaust administrative remedies. The court held that “the 

determination of fair market value and whether the airline 

property is undervalued under the . . . Allocation Law[] are factual 

findings that underlie the Counties’ constitutional claims.” The 

__________________________________________________________

7 The Counties have not appealed the dismissal of their 

fair-market-value-clause claims regarding the “clear and 

convincing evidence” standard (second claim) or regarding the 

“fleet adjustment” provision (fourth claim). Although the Counties 

do not explain why these claims were not appealed, we assume it 

is because they would undoubtedly require factual findings 

regarding the fair market value of specific property—a task better 

left for an administrative proceeding.

8

Id. § 59-2-804.
SALT LAKE COUNTY v. STATE

Opinion of the Court

6

court further held that the tax commission should be allowed to 

make these findings in an administrative proceeding because it 

would “be useful to frame the constitutional claims.” Specifically, 

the court explained that tax commission findings “regarding 

allocations using the [formula provided by the Allocation law] 

w[ould] be useful to frame the constitutional claims regarding the 

Allocation Law.” Finally, the court noted that the Counties were 

already pursuing appeals of the tax commission’s determinations, 

so “inconsistent findings could result if both the Commission and 

t[he] Court rendered factual findings regarding fair market value 

of the airlines’ property in simultaneous proceedings.” The 

Counties appeal this determination as to their seventh and eighth 

claims.

¶13 Lastly, the legislature enacted Utah Code section 59-2-1007 

(Threshold law). The Threshold law bars counties from challenging 

a tax commission’s property tax assessment unless a county 

“reasonably believes” the tax commission’s assessment has 

undervalued property by at least 50 percent.9In the Counties’ ninth 

and tenth claims, they challenged the Threshold law under the 

open courts provision of the Utah Constitution and article XIII’s 

uniformity clause. But, noting that the Counties’ complaint does 

“not identif[y] a specific instance in which they were denied the 

opportunity to pursue an appeal of an airline assessment under the 

. . . Threshold Law,” the court dismissed these claims as unripe. 

The Counties appeal this ripeness determination as to their open 

courts claim (ninth claim) but not as to their uniformity clause 

claim (tenth claim).10 We have jurisdiction over this appeal 

pursuant to Utah Code section 78A-3-102(3)(j).

Standard of Review

¶14 We are asked to review a district court’s dismissal of 

several claims under rules 12(b)(1) and 12(b)(3) of the Utah Rules 

__________________________________________________________

9

Id. § 59-2-1007(2)(b).

10 The Counties also brought an eleventh claim in their 

complaint, which challenged the Valuation, Allocation, and 

Threshold laws as violating article I, section 24 of the Utah 

Constitution, and the Fourteenth Amendment of the United States 

Constitution. This claim, as it relates to the Valuation and 

Allocation laws, was dismissed without prejudice for a failure to 

exhaust administrative remedies, and, as it relates to the Threshold 

law, it was dismissed without prejudice as unripe.
Cite as: 2020 UT 27

Opinion of the Court 

7

of Civil Procedure. A dismissal made under either of these rules 

“presents a question of law that we review for correctness.”11

Analysis

¶15 We must determine whether the district court erred in 

dismissing one of the Counties’ claims as unripe and several other 

claims for a failure to exhaust administrative remedies. We hold 

that neither of the court’s determinations was in error.

I. We Affirm the District Court’s Ripeness Determination

¶16 The Counties argue that the district court erred in 

dismissing, on ripeness grounds, their claim challenging the 

Threshold law. They argue that their challenge of the Threshold 

law is ripe because it is certain that the Threshold law will deprive 

the Counties of an opportunity to challenge the tax commission’s 

property tax assessment. And they argue that the district court 

erred in excluding from its consideration matters outside the 

pleadings because those matters established that their challenge of 

the Threshold law is ripe. We disagree.

A. The Counties’ pleadings are insufficient to establish 

that their challenge of the Threshold law is ripe

¶17 The Counties argue that, because the Threshold law will 

inevitably bar a challenge to a tax assessment, their challenge of the 

law is ripe. But we disagree because the Counties failed to plead 

that their right to challenge a tax assessment had been violated 

pursuant to the Threshold law, or that they intended to challenge a 

tax assessment that would be barred by the Threshold law.

¶18 The “[r]ipeness doctrine is invoked to determine whether 

a dispute has yet matured to a point that warrants a decision.”12

The doctrine rests upon the principle “that courts should decide 

only ‘a real, substantial controversy,’ not a mere hypothetical 

__________________________________________________________

11 Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29, ¶ 10, 232 

P.3d 999 (“A district court’s grant of a motion to dismiss based 

upon the allegations in the plaintiff’s complaint[] presents a 

question of law that we review for correctness.” (alteration in 

original) (citation omitted)).

12 13B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL 

PRACTICE & PROCEDURE § 3532 (3d ed. 2018).
SALT LAKE COUNTY v. STATE

Opinion of the Court

8

question.”13 There are a number of policies underlying the doctrine. 

These include “block[ing] the court from rendering advisory 

opinions on matters that may not impact the parties to a case,” 

“requiring a clear factual record prior to adjudication,” 

“facilitat[ing] informed decisions that fit the circumstances of 

individual cases,” and “prevent[ing] the court from intruding on 

legislative functions by unnecessarily ruling on sensitive 

constitutional questions.”14 These policies underlie our ripeness 

test.

¶19 We have stated that “[i]ssues are ripe for adjudication 

where it appears ‘there is an actual controversy, or that there is a 

substantial likelihood that one will develop so that the adjudication 

will serve a useful purpose in resolving or avoiding controversy or 

possible litigation.’”

15 By focusing a court’s attention on whether 

__________________________________________________________

13 Id. § 3532.2 (internal quotation marks omitted). Because of the 

ripeness doctrine’s aversion to resolving merely hypothetical 

disputes, the doctrine is often discussed in connection with the rule 

against issuing advisory opinions. And the policies underlying the 

ripeness doctrine also underlie the advisory opinion rule.

14 Carter v. Lehi City, 2012 UT 2, ¶ 93, 269 P.3d 141. These policies 

are substantially similar to the policies underlying the federal 

ripeness doctrine. According to Wright and Miller, these include 

the belief that “[u]nnecessary decisions dissipate judicial energies 

better conserved for litigants who have a real need for official 

assistance,” and that defendants “should not be forced to bear the 

burdens of litigation without substantial justification” or to bear the 

burdens of defending against “hypothetical possibilities rather 

than immediate facts.” WRIGHT & MILLER, supra ¶ 18 n.12, at

§ 3532.1. But perhaps the most important policy reason for the 

ripeness doctrine is that judicial decisions involve “lawmaking,” 

and “unnecessary lawmaking should be avoided, both as a matter 

of defining the proper role of the judiciary in society and as a matter 

of reducing the risk that premature litigation will lead to ill-advised 

adjudication.” Id.

15 Salt Lake Cty. Comm’n v. Salt Lake Cty. Att’y, 1999 UT 73, ¶ 12, 

985 P.2d 899 (quoting Salt Lake Cty. v. Salt Lake City, 570 P.2d 119, 

121 (Utah 1977)). Our ripeness test, although not identical, is similar 

to the federal approach. Under the federal approach, ripeness is 

determined through a balancing test in which the court “balances 

the need for decision against the risks of decision.” WRIGHT &

(Continued)
Cite as: 2020 UT 27

Opinion of the Court 

9

the resolution of a legal issue will be helpful in resolving or 

avoiding a particular controversy or possible litigation, this test 

suggests that courts should resolve legal issues only where the legal 

determination can be applied to the facts attendant to a specific 

controversy.

¶20 This principle, that issues are ripe for adjudication only 

where the legal determination can be applied to the facts of a 

particular controversy, is illustrated in cases involving challenges 

to the constitutionality or legality of statutes or ordinances. In this 

context, we have explained that “[w]here there exists no more than 

a difference of opinion regarding the hypothetical application of a 

piece of legislation to a situation in which the parties might, at some 

future time, find themselves, the question is unripe for 

adjudication.”16 In other words, a challenge to a statute is unripe 

unless the court’s legal determination regarding the statute can be 

applied to specific facts in the case. This is true even where we have 

“no[] doubt” that the factual circumstances in which the legal 

determination would be applied will “arise at some future time.”17

¶21 For example, in Baird v. State we explained that a “plaintiff 

may seek and obtain a declaration as to whether a statute is 

constitutional by . . . alleging facts indicating how he will be 

__________________________________________________________

MILLER, supra ¶ 18 n.12, at § 3532.1. The need for decision is 

measured by the “probability and importance of the anticipated 

injury,” and the risks of decision “are measured by the difficulty 

and sensitivity of the issues presented, and by the need for further 

factual development to aid decision.” Id. In other words, federal 

courts determine ripeness after balancing “the hardship to the 

parties of withholding court consideration” on one side, and “the 

fitness of the issues for judicial decision” on the other. Id. Because 

this test often requires courts to make difficult “value judgments,” 

it has been said that “[t]he general rule for determining whether 

ripeness exists is easy to state and hard to apply.” Id. § 3532 

(alteration in original) (citation omitted). Although we have never 

adopted the federal balancing test, we have previously considered 

many of the test’s competing concerns in determining ripeness and, 

therefore, our case law may be consistent with the federal 

approach.

16 Redwood Gym v. Salt Lake Cty. Comm’n, 624 P.2d 1138, 1148 

(Utah 1981).

17 Id.
SALT LAKE COUNTY v. STATE

Opinion of the Court

10

damaged by its enforcement.”18 And we concluded that a 

“complaint is insufficient” if it “merely challenges the 

constitutionality of a statute without in some way indicating that 

plaintiff will be affected by its operation or is subject to its terms 

and provisions.”19 Thus a complaint challenging a statute’s validity 

satisfies the ripeness requirement when it contains facts showing 

that the challenged statute has been applied or will imminently be 

applied in a way that harms the plaintiff.

¶22 This rule served as the basis of our decision in Salt Lake 

County v. Bangerter.

20 In that case, a number of counties appealed 

the dismissal of their claim challenging a provision in the tax code. 

We affirmed the dismissal because the counties “ha[d] failed to set 

forth the specific facts of any case that [had] arisen.”21 And, “[a]s 

far as we [could] determine from the record [of the case], no 

taxpayer [had] actually received a reduction of his property taxes 

under the [challenged] statute.”22 We held, therefore, that “[t]o 

render the constitutionality of the [challenged statute] ripe for 

adjudication,” the counties had to “produce a tax assessment that 

[had] been challenged and reduced under the [challenged statute] 

with a resulting loss of revenue to the relevant county.”23 “In the 

absence of such a reduced assessment,” we explained, “our hands 

[were] tied because a justiciable controversy necessarily involves 

an accrued state of facts as opposed to a hypothetical state of 

facts.”24 Like the unripe claim in the Bangerter case, the Counties’

claims challenging the Threshold law are premised on a merely 

hypothetical state of facts.

¶23 In their complaint, the Counties frame their challenge of 

the Threshold law in hypothetical terms. They assert that “[i]f an 

assessment is below fair market value, but not below the 50% 

threshold . . . , only the taxpayer can seek administrative review.” 

And because a taxpayer “has no incentive to file an appeal for an 

__________________________________________________________

18 574 P.2d 713, 716 (Utah 1978).

19 Id.

20 928 P.2d 384, 385 (Utah 1996).

21 Id.

22 Id.

23 Id.

24 Id. (citation omitted) (internal quotation marks omitted).
Cite as: 2020 UT 27

Opinion of the Court 

11

assessment below fair market value,” “assessments below fair 

market value . . . will likely go unchallenged.” According to the 

Counties, this statutory framework operates to violate the Utah 

Constitution “by insulating from administrative or judicial review 

State Tax Commission assessments that are below market value or 

are non-uniform.” But the Counties do not allege they were 

actually barred from challenging a tax assessment, nor do they 

identify an assessment they would have challenged in the absence 

of the Threshold law. So nothing in the Counties’ complaint 

suggests they have been harmed, or that harm is imminent, because 

of the Threshold law.

¶24 Nevertheless, on appeal the Counties argue their claim is 

ripe because the Threshold law “is invoked ab initio.” In other 

words, the Counties argue that because the Threshold law 

“prevents any County to appeal any valuations that are below the 

50% threshold since 2015,” “there is not only a substantial 

likelihood that a controversy will develop in the future, but that 

[an] actual controversy has already occurred.” But even though 

that may be true, there is nothing in the Counties’ complaint to 

suggest that the Counties were prohibited, or dissuaded, from 

challenging any tax assessments since 2015. So, as it appears in their 

complaint, their challenge to the Threshold law is framed only by 

hypothetical facts. Accordingly, it is unripe.

B. The district court did not err by declining

to consider the tax commission cases

¶25 But the Counties argue that the district court erred in 

making its ripeness determination because it disregarded “factual 

evidence” showing that, after the complaint in this case had been 

filed, the tax commission dismissed four property tax appeals 

pursuant to the Threshold law. We disagree. The district court did 

not err, because the State filed a motion under rule 12(b)(1), in 

which it raised a facial attack on the pleadings, making it 

unnecessary for the district court to consider matters outside the 

pleadings.

¶26 “Motions under [r]ule 12(b)(1) fall into two different 

categories: a facial or a factual attack on jurisdiction.”25 In a factual 

__________________________________________________________

25 WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350; see also Titus v. 

Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (“In order to properly 

dismiss for lack of subject matter jurisdiction under [r]ule 12(b)(1), 

(Continued)
SALT LAKE COUNTY v. STATE

Opinion of the Court

12

challenge to jurisdiction, the defendant “attacks the factual 

allegations underlying the assertion of jurisdiction, either through 

the filing of an answer or otherwise presenting competing facts.”26

“In a facial challenge,” on the other hand, “all of the factual 

allegations concerning jurisdiction are presumed to be true and the 

motion is successful if the plaintiff fails to allege an element 

necessary for subject matter jurisdiction.”27 So where defendants 

raise facial challenges to jurisdiction, they are not necessarily 

arguing that there is an irreparable jurisdictional defect. Instead, 

they are arguing that the allegations currently included in the 

complaint are insufficient to establish jurisdiction.

¶27 Because a facial attack on jurisdiction is “directed solely at 

the sufficiency of the complaint’s jurisdictional allegations,” it is 

“unlikely that affidavits or other materials outside the pleadings 

will be necessary.”28 Where the allegations in a complaint are 

insufficient to establish jurisdiction, the court “has at least two 

possible courses of action.”29 First, the court “may deny the motion 

and direct the [plaintiff] to amend the pleading.”30 Second, the 

court may dismiss without prejudice so that the plaintiff can later 

file an amended complaint.31

¶28 In this case, the State brought a facial attack on jurisdiction. 

In its motion to dismiss, the State argued that “[p]laintiffs have not 

pleaded facts regarding a specific assessment.” And they explained 

that “[t]his failure is fatal because without specific facts and a 

specific assessment, there is no case or controversy before the 

__________________________________________________________

the complaint must be successfully challenged on its face or on the 

factual truthfulness of its averments.”). We note that the facial 

versus factual distinction (and the related case law) comes from 

federal courts. Although we are not bound by federal case law, the 

federal cases we cite provide a helpful framing—one that is 

consistent with our rules of procedure—for addressing the 

problem with the Counties’ complaint.

26 WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350.

27 Titus, 4 F.3d at 593.

28 WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350.

29 Id.

30 Id.

31 Id.
Cite as: 2020 UT 27

Opinion of the Court 

13

Court.” So the State did not attack the factual allegations in the 

Counties’ complaint. Instead, it argued for dismissal because the 

complaint lacked sufficient factual allegations. And in response to 

this argument, the district court did not need to consider any 

materials outside the pleadings.

¶29 But the Counties argue that the court’s failure to consider 

evidence regarding the tax cases constituted reversible error 

because our case law suggests that where a court considers a rule 

12(b)(1) motion to dismiss, it “should consider materials outside 

the pleadings, including supplemental factual allegations to 

determine whether any set of facts support the cause of action 

pled.” The Counties’ reliance on the cited case law is misplaced.

¶30 The Counties cite four cases in support of their argument: 

(1) Coombs v. Juice Works Development Inc.,

32 (2) Wheeler v. 

McPherson,

33 (3) Spoons v. Lewis,34 and (4) America West Bank 

Members, L.C. v. State.

35 But none of these cases supports the 

Counties’ position.

¶31 In Coombs, the Utah Court of Appeals reviewed the district 

court’s dismissal of a contract case for improper venue under rule 

12(b)(3).36 Because the defendant in the case had attached a contract 

containing a forum selection clause as part of its motion to dismiss 

under rule 12(b)(3), the court of appeals considered whether it was 

appropriate to consider the contract without converting the motion 

into a rule 56 motion for summary judgment.37 Citing Utah 

precedent, the court of appeals explained that only motions 

brought under rule 12(b)(6) would trigger a conversion to a motion 

for summary judgment.38 Accordingly, it concluded that courts 

“may consider facts alleged outside the complaint” without 

converting the motion into one for summary judgment.39

__________________________________________________________

32 2003 UT App 388, 81 P.3d 769.

33 2002 UT 16, 40 P.3d 632.

34 1999 UT 82, 987 P.2d 36.

35 2014 UT 49, 342 P.3d 224.

36 Coombs, 2003 UT App 388, ¶ 7.

37 Id.

38 Id.

39 Id. (emphasis added).
SALT LAKE COUNTY v. STATE

Opinion of the Court

14

¶32 Coombs does not support the Counties’ position for two 

reasons. First, in Coombs, the extra-pleading material at issue was 

brought by the defendant in support of the defendant’s factual 

attack on venue. As discussed above, factual attacks on the 

pleadings necessarily require the introduction of materials outside 

the pleadings, by the defendant, to establish that the factual 

allegations in a plaintiff’s complaint are not true. Accordingly, the 

court of appeals’ statement regarding the appropriateness of 

considering materials outside the pleadings should be understood 

to apply to factual attacks on the pleadings. Second, by using the 

word “may,” the court in Coombs suggested that courts retain 

discretion to consider, or to not consider, materials outside the 

pleadings. Thus the decision in Coombs does not stand for the 

proposition that a court must consider materials outside the 

pleadings, especially in deciding a facial challenge to jurisdiction.

¶33 Wheeler and Spoons also do not support the Counties’

position. In these cases, we rejected the argument that a motion to 

dismiss under rule 12(b)(1) is automatically converted into a rule 

56 motion for summary judgment where one or both of the parties 

attach materials outside the pleadings. As we explained in both 

cases, “the purpose underlying rule 12[(b)(6)’s] conversion 

requirement is ‘to allow parties an adequate opportunity to rebut 

materials outside the pleadings.’”

40 These cases suggest that a court 

may consider material outside the pleadings in deciding a rule 

12(b)(1) motion and—where necessary to give both parties an 

adequate opportunity to rebut materials outside the pleadings—

may convert the motion into a rule 56 motion for summary 

judgment. But they do not suggest that a court must consider any 

attached material outside the pleadings. And they especially do not 

suggest that a court must consider material outside the pleadings 

where a plaintiff attaches it in response to a defendant’s facial 

attack on the jurisdictional sufficiency of the plaintiff’s complaint.

¶34 Finally, America West Bank does not support the Counties’

position. In that case we reviewed a district court’s dismissal, under 

rule 12(b)(6), for a failure to state a claim upon which relief could 

be granted.41 Although we explained, as the Counties have 

indicated, that we should affirm a rule 12(b)(6) ruling only “if it 

clearly appears that [the plaintiff] can prove no set of facts in 

__________________________________________________________

40 Wheeler, 2002 UT 16, ¶ 20 (quoting Spoons, 1999 UT 82, ¶ 4).

41 2014 UT 49, ¶ 7.
Cite as: 2020 UT 27

Opinion of the Court 

15

support of his claim,” we also explained that in considering a rule 

12(b)(6) motion, a court “need not accept extrinsic facts not pleaded 

nor need [it] accept legal conclusions in contradiction of the 

pleaded facts.”42 Because America West Bank deals with a rule 

12(b)(6) motion, it is not particularly illuminating on the question 

raised by the Counties in this case. But to the extent it is relevant, 

America West Bank suggests that district courts need not consider 

extrinsic facts when considering whether a plaintiff has pled 

sufficient jurisdictional facts.43 Accordingly, America West Bank

does not suggest that district courts must consider materials 

outside the pleadings when considering a facial attack on 

jurisdiction under rule 12(b)(1).

¶35 In sum, the allegations in the Counties’ complaint related 

to the Threshold law are facially insufficient to show that the 

Counties have been adversely affected, or will imminently be 

affected, by the Threshold law. So their Threshold law claim is 

unripe. And because of the nature of the jurisdictional defect—

facial insufficiency in the pleadings—the district court did not err 

in declining to consider materials outside the pleadings to rectify 

the jurisdictional issue. Accordingly, we affirm the court’s ripeness 

determination.

II. We Affirm the District Court’s Dismissal of the Counties’

Remaining Claims Because Those Claims 

are Merely Requests for an Advisory Opinion

¶36 The Counties also argue the district court erred in 

dismissing their remaining claims for a failure to exhaust 

administrative remedies. They assert that the court’s dismissal of 

these claims was in error because their claims “give rise to purely 

legal questions that cannot be obviated through administrative 

adjudication.” Because the Counties’ argument on appeal 

suggested that this case did not present an actual controversy, we 

requested supplemental briefing. After considering this briefing, 

__________________________________________________________

42 Id. (first alteration in original).

43 Although rule 12(b)(6) motions and rule 12(b)(1) motions are 

typically treated differently with respect to materials outside the 

pleadings, the nature of facial challenges to jurisdiction under rule 

12(b)(1) is somewhat analogous to a challenge under rule 12(b)(6). 

For this reason, our statement in America West Bank regarding 

extrinsic facts in the context of rule 12(b)(6) motions may serve as a 

helpful analogy in analyzing facial challenges under rule 12(b)(1). 
SALT LAKE COUNTY v. STATE

Opinion of the Court

16

we are convinced that the Counties’ claims are merely requests for 

advisory opinions. Because we do not issue advisory opinions, we 

affirm the district court’s dismissal of those claims.

¶37 Although the extent of the judicial power is not clear in 

every context, our case law establishes that we do not “decide 

abstract questions.”44 This is due to the nature of an abstract 

question.

¶38 An abstract question is a question that is to be “considered 

apart from application to or association with a particular 

__________________________________________________________

44 Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 

2012 UT 75, ¶ 19, 289 P.3d 582. Our analysis of abstract questions is 

guided by our case law. But even though the principle against 

deciding abstract questions is firmly established in our case law, we 

note that a debate exists regarding the source of this principle and 

the limits of our judicial power. This debate was recently 

highlighted in competing concurring opinions in In re Gestational 

Agreement, 2019 UT 40, 449 P.3d 69, opinions which focused on the 

requirement of adversariness—a related justiciability requirement 

identified in our case law. On one side of the debate is the view set 

forth in Justice Pearce’s concurrence. In that opinion, Justice Pearce

argued that we have consistently, and perhaps inaccurately, treated 

prudential concerns as constitutional limits on our jurisdiction 

when we have not yet undertaken the analysis that would permit 

us to speak definitely about the meaning of the Utah Constitution. 

See id. ¶ 58 (Pearce, J., concurring). And on the other side of the 

debate is the view set forth in Justice Lee’s concurrence. According 

to Justice Lee, many of our traditional jurisdictional limits (such as

the rule against deciding abstract questions at issue in this case) 

stem from the meaning of the term “judicial power” as it appears 

in Utah’s constitution. See id. ¶ 131 (Lee, A.C.J., concurring). But in 

declining to answer the abstract question presented by the Counties 

in this case, we need not determine whether the rule against 

deciding such questions is merely prudential (consistent with 

Justice Pearce’s view) or constitutionally-mandated (consistent 

with Justice Lee’s view) because either view would lead to the same 

result.

So even though it is possible that, in a future case, a historical 

analysis of the original meaning of the Utah Constitution may lead 

us to rethink the way our case law has described the limits of the 

judicial power, we decline to revisit that case law unnecessarily 

here.
Cite as: 2020 UT 27

Opinion of the Court 

17

instance.”45 But, under our case law, a court cannot answer a legal 

question unless it is framed within “specific facts of [a] case that has 

arisen.”46 This is so even in the context of a declaratory judgment 

action.47

¶39 We have explained that even though Utah courts have “the 

power to issue declaratory judgments determining rights, status, 

and other legal relations within [their] respective jurisdiction,”48

they nevertheless “must operate within the constitutional and 

statutory powers and duties imposed upon them.”49 Accordingly, 

the power to issue declaratory judgments does not transform our 

courts into “forum[s] for hearing academic contentions or 

rendering advisory opinions.”50 Thus courts should not “render 

declaratory judgments[] in the absence of an actual controversy

directly involving rights.”51

¶40 A “controversy” means a “case that requires a definitive 

determination of the law on the facts alleged for the adjudication of an 

actual dispute, and not merely a hypothetical, theoretical, or 

speculative legal issue.”52 Because there can be no “controversy” in 

the absence of specifically alleged facts regarding the dispute 

between the parties in a case, a court cannot render a declaratory 

__________________________________________________________

45 See Abstract, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

(10th ed. 1998).

46 Salt Lake Cty. v. Bangerter, 928 P.2d 384, 385 (Utah 1996).

47 We have repeatedly explained that a court may grant 

requested declaratory relief only where the following conditions 

exist: “(1) a justiciable controversy; (2) the interests of the parties 

must be adverse; (3) the party seeking such relief must have a 

legally protect[a]ble interest in the controversy; and (4) the issues 

between the parties involved must be ripe for judicial 

determination.” Lyon v. Bateman, 228 P.2d 818, 820–21 (Utah 1951)

(emphases added).

48 Downs v. Thompson, 2019 UT 63, ¶ 14, 452 P.3d 1101 (quoting 

UTAH CODE § 78B-6-401(1)).

49 Lyon, 228 P.2d at 820.

50 Id.

51 Utah Transit Auth., 2012 UT 75, ¶ 19 (emphasis added).

52 Controversy, BLACK’S LAW DICTIONARY (11th ed. 2019) 

(emphasis added).
SALT LAKE COUNTY v. STATE

Opinion of the Court

18

judgment where a plaintiff has not framed the legal question to be 

decided within the context of a specific factual dispute.53

¶41 We note, however, that the Counties cite a number of cases 

they claim support the notion that a court may decide “purely legal 

questions” in the absence of an underlying factual dispute. Yet all 

of the cited cases, although presenting legal questions for judicial 

determination, presented factual circumstances in which the 

resolved legal questions could be applied.54 So our case law does 

__________________________________________________________

53 See Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983) (“A 

plaintiff with a direct and personal stake in the outcome of a 

dispute will aid the court in its deliberations by fully developing all 

the material factual and legal issues in an effort to convince the 

court that the relief requested will redress the claimed injury.”). 

54 Nebeker v. Utah State Tax Comm’n, 2001 UT 74, ¶¶ 1, 3, 34 P.3d 

180 (plaintiff sought to have the tax commission’s decision to apply 

a 12 percent special fuel tax to plaintiff’s oilfield commodities 

business overturned on constitutional grounds); Bangerter, 928 P.2d 

at 386 (“If the Counties wish to attack the Equalization Act in the 

abstract without a specific controversy which is ripe for 

adjudication, they must approach the legislature, not this court.”); 

Brumley v. Utah State Tax Comm’n, 868 P.2d 796, 797 (Utah 1993) 

(plaintiffs sought a tax refund for amounts paid in Utah state 

income tax on retirement income from federal sources for the tax 

years of 1985, 1986, 1987, and 1988); Kennecott Corp. v. Salt Lake Cty., 

702 P.2d 451, 453 (Utah 1985) (plaintiff sought “a partial refund of 

its 1981 property taxes previously paid under protest”); Jenkins, 675 

P.2d at 1149 (denying plaintiff’s request for declaratory judgment, 

which was based on “generalized grievances that [were] more 

appropriately directed to the legislative and executive branches of 

the state government”); Johnson v. Utah State Ret. Office, 621 P.2d 

1234, 1236 (Utah 1980) (plaintiffs sought “payment of benefits paid 

into the retirement system on plaintiffs’ behalf”); State Tax Comm’n 

v. Wright, 596 P.2d 634, 635 (Utah 1979) (defendant sought dismissal 

of a judgment for unpaid tax payments); Baird, 574 P.2d at 715 

(overturning a district court’s determination that a statute was 

unconstitutional on the ground that it was an “advisory opinion” 

because “[t]he alleged adverse actions of [the] defendant [State of 

Utah] consisted of the creation, administration, and enforcement of 

a legislative act” and “[t]he allegations concerning the 

unconstitutionality of the act were all pleaded in the abstract” 

(Continued)
Cite as: 2020 UT 27

Opinion of the Court 

19

not support the Counties’ argument that we can decide a pure legal 

question that is not tied to a specific set of facts. Indeed, it confirms 

that we are unable to answer abstract questions by rendering 

advisory opinions.

¶42 Accordingly, to plead a justiciable controversy, plaintiffs 

must plead “concrete facts” “indicating a[] specific injury sustained 

or threatened to [the] plaintiff[s].”55 So where plaintiffs merely 

make “allegations concerning the unconstitutionality of [a statute] 

. . . in the abstract,”56 they have not pled a controversy. Instead, 

their claims are more properly characterized as abstract questions, 

or, in other words, as requests for advisory opinions. Because, on 

the face of their complaint, the Counties do not frame their 

constitutional challenges in the context of a specific factual dispute, 

their claims are merely requests for advisory opinions.

¶43 Throughout the Counties’ complaint, they purport to 

attack the Challenged laws “both facially and as applied to the 2017 

__________________________________________________________

without any “concrete facts . . . indicating any specific injury 

sustained or threatened to [the] plaintiff personally”); Shea v. State 

Tax Comm’n, 120 P.2d 274, 274 (Utah 1941) (plaintiff sought a refund 

of $4,696.45 for overpayments on fuel taxes); TDM, Inc. v. Tax 

Comm’n, 2004 UT App 433, ¶¶ 6–7, 103 P.3d 190 (per curiam) 

(summarily reversing a district court determination that the factual 

record needed to be further developed in an administrative 

proceeding before a case could be brought in the district court).

55 Bangerter, 928 P.2d at 385 (citation omitted); see id. (“In a 

declaratory judgment action, the law itself is at issue. This does not 

remove the controversy requirement, however.”); see also Baird, 574 

P.2d at 716 (“A plaintiff may seek and obtain a declaration as to 

whether a statute is constitutional by averring in his pleading the 

grounds upon which he will be directly damaged in his person or 

property by its enforcement; by alleging facts indicating how he 

will be damaged by its enforcement; that defendant is enforcing 

such statute or has a duty or ability to enforce it; and the 

enforcement will impinge upon plaintiff’s legal or constitutional 

rights. A complaint is insufficient which merely challenges the 

constitutionality of a statute, without in some way indicating that 

plaintiff will be affected by its operation or is subject to its terms 

and provisions.”).

56 Bangerter, 928 P.2d at 385.
SALT LAKE COUNTY v. STATE

Opinion of the Court

20

tax assessments.”57 But even though the district court determined 

that the Counties’ repeated references to the 2017 tax assessments 

rendered their claims regarding the Valuation and Allocation laws 

justiciable, the Counties’ arguments on appeal make clear that the 

claims raised in their complaint are not based on the facts of the 

2017 tax assessment or on any injury stemming directly from it.

¶44 In their briefing on appeal, the Counties distance 

themselves from any specific factual scenario and never couch their 

claims in the context of the 2017 assessment. Instead, they argue 

that their claims “give rise to purely legal questions” that “do not 

arise from a specific tax assessment challenged, unchallenged, or 

foregone.” So it is clear that their claims do not stem from a 

__________________________________________________________

57 “A statute may be unconstitutional either on its face or as 

applied to the facts of a given case.” State v. Herrera, 1999 UT 64, ¶ 4 

n.2, 993 P.2d 854. We note, however, that the complaint in the case 

before us fails to present any as-applied challenges. “In an 

as-applied challenge, a party concedes that the challenged statute 

may be facially constitutional, but argues that under the particular 

facts of the party’s case, ‘the statute was applied . . . in an 

unconstitutional manner.’” Gillmor v. Summit Cty., 2010 UT 69, ¶ 27, 

246 P.3d 102 (alteration in original) (footnote omitted). Typically, 

this type of challenge requires the plaintiff to show that, because of 

a particular quality or status of the plaintiff or the plaintiff’s 

circumstances, the application of an otherwise sound statutory 

provision was unconstitutional. See id. ¶ 30 (explaining that a 

party’s “as-applied” challenges were more properly classified as 

“facial challenges” because “nothing in [the party’s] petition 

allege[d] that there was something uniquely unconstitutional about 

the way in which the ordinances were applied to her particular 

[circumstances]”); Herrera, 1999 UT 64, ¶ 22 (discussing a 

defendant’s “as-applied” claim, which challenged a criminal 

statute’s application to the defendant based on the defendant’s 

mental illness). But nothing in the Counties’ complaint discusses 

the specific manner in which the Challenged laws were applied to 

them. Instead, the complaint merely states that the laws were 

unconstitutional “as applied to the 2017 assessment.” In fact, with 

the exception of the “as applied to the 2017 assessment” statement 

sprinkled throughout the complaint, most of the Counties’

allegations are couched in hypothetical terms. So the Counties have 

not actually raised any as-applied challenges in their complaint.
Cite as: 2020 UT 27

Opinion of the Court 

21

“specific injury sustained or threatened.”58 Because the complaint 

is not based on a specific instance where the Challenged laws have 

been applied (or will imminently be applied), the Counties’

complaint is merely a request for an advisory opinion on the 

constitutionality of the Challenged laws.

¶45 We also note that the problematic nature of the Counties’

complaint is highlighted by the many other cases in which they 

have specifically attacked the Challenged laws based on the laws’

application, or imminent application. As the State points out in its 

supplemental brief, the Counties have already raised constitutional 

concerns with the Challenged laws in multiple cases that are 

currently pending. In Utah, parties may not initiate “a separate 

declaratory judgment action when the same parties are already 

involved in a separate administrative action or proceeding 

involving identical issues.”59 Were we to allow parties to raise 

purely legal questions on “narrow issues taken out of . . . context” 

in separate declaratory judgment actions, we might “needlessly 

increase the risk of inconsistent or erroneous decisions.”60

¶46 To ensure that this declaratory judgment action did not 

involve identical issues to those already presented in other cases, 

we asked the parties to provide supplemental briefing on whether 

“any of the Counties’ claims in this case arise from facts stemming 

from a tax assessment that is not being challenged, or has not 

already been challenged, in another case.” Although the State and 

the Airlines argued that the Counties have failed to bring a claim 

that had not already been brought in other cases, the Counties 

declined to address this question directly. So the “purely legal 

questions” the Counties have raised in this case may have already 

been raised within the factual context of another case. Thus, were 

we to answer the purely legal questions posed by the Counties in 

this case, we would risk arriving at a determination that is 

inconsistent with a determination made by a court that had the 

benefit of considering the same legal questions in a specific factual 

__________________________________________________________

58 Bangerter, 928 P.2d at 385.

59 Hercules, Inc. v. Utah State Tax Comm’n, 1999 UT 12, ¶ 9, 974 

P.2d 286.

60 Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 

UT 56, ¶ 11, 428 P.3d 1133 (alteration in original) (citation omitted).
SALT LAKE COUNTY v. STATE

Opinion of the Court

22

context. This possibility highlights the importance of adhering to 

the legal principles we have discussed in this opinion. 

¶47 As we have explained, our case law has firmly established 

that courts should not render advisory opinions, or, in other words, 

answer abstract questions. And this remains true in the context of 

declaratory judgment actions. Because the Counties’ claims are 

better characterized as requests for advisory opinions regarding the 

constitutionality of the Challenged laws, we do not address them.61

Conclusion

¶48 We affirm the district court’s dismissal, on ripeness 

grounds, of the Counties’ claim challenging the Threshold law 

because the Counties’ complaint is facially insufficient to show that 

the Threshold law adversely affected them. We also affirm the 

court’s dismissal of the Counties’ remaining claims on the ground 

that those claims are merely requests for an advisory opinion

because none of the claims is tied to the facts of a particular 

controversy.

__________________________________________________________

61 Utah Transit Auth., 2012 UT 75, ¶ 19 (“One of our earliest 

explications of justiciability noted that ‘[e]ven courts of general 

jurisdiction have no power to decide abstract questions or to render 

declaratory judgments, in the absence of an actual controversy 

directly involving rights.’” (alteration in original) (citation 

omitted)); see also Jenkins, 675 P.2d at 1149 (explaining that courts 

have the constitutional obligation to apply legal principles “to a 

particular dispute”).