Case 2:16-cv-00843-DAO Document 44 Filed 06/11/20 Page 1 of 22 FILED

This opinion is subject to revision before final 2020 JUN 11 PM 12:53

publication in the Pacific Reporter
CLERK
2020 UT 34 U.S. DISTRICT COURT

IN THE

SUPREME COURT OF THE STATE OF UTAH

TERRY MITCHELL,
Plaintiff,
v.
RICHARD WARREN ROBERTS,
Defendant.

No. 20170447
Heard May 14, 2018
Supplemental Briefing Submitted September 25, 2019
Filed June 11, 2020

On Certification from the

United States District Court for the District of Utah
The Honorable Evelyn J. Furse
Case No. 2:16-cv-00843-EJF

Attorneys:
Ross C. Anderson, Walter M. Mason, Salt Lake City, for plaintiff
Brian M. Heberlig, Linda C. Bailey, Washington D.C.,
Neil A. Kaplan, Shannon K. Zollinger, Troy L. Booher,
Salt Lake City, for defendant

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 This case is before us on certification from the United States
District Court for the District of Utah. In the underlying federal case
Terry Mitchell asserts civil claims against Richard Warren Roberts.
The claims arise out of allegations that Roberts sexually abused
Mitchell in 1981 when she was sixteen years old. Mitchell alleges that
the abuse took place in the course of interactions she had with
Roberts related to a pending criminal action in which Roberts was a
prosecuting attorney and Mitchell was a witness.
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¶2 Mitchell concedes that each of her claims against Roberts

had expired under the original statute of limitations. But she
contends that her claims were revived when the legislature enacted
Utah Code section 78B-2-308(7) in 2016. That statute provides that
certain civil claims against perpetrators of sexual abuse may be
asserted, even if “time barred as of July 1, 2016,” if they are “brought
within 35 years of the victim’s 18th birthday, or within three years of
the effective date of this Subsection (7), whichever is longer.” Id. And
Mitchell asserts that her claims against Mitchell were timely filed
under this statute because they were brought within three years of
its effective date.
¶3 Roberts has responded by challenging the legislature’s
authority to enact a statute reviving time-barred claims. And that
response raises important questions of Utah law. Our case law has
long questioned the authority of the legislature to revive a time-
barred cause of action,1 but the nature and basis of any such
limitation has not been clearly delineated. With that in mind, the
federal court (Magistrate Judge Furse) certified this case to us, asking
us to clarify (1) whether the legislature had the authority to
“expressly revive time-barred claims through a statute,” and (2)
whether “the language of Utah Code section 78B-2-308(7), expressly
reviving claims for child sexual abuse that were barred by the
previously applicable statute of limitations as of July 1, 2016, make(s)
unnecessary the analysis of whether the change enlarges or
eliminates vested rights.”
¶4 In the initial briefing and at oral argument it appeared to us
(and to the parties) that the certified questions went only to the
legislature’s authority as a matter of statutory interpretation (as
informed by our case law). On reflection, however, it became clear
that the certified questions could not meaningfully be answered
without addressing an embedded constitutional issue—as to the
effect of due process limitations on the scope of the legislature’s
power in this area. Because our role in addressing certified questions
is to facilitate the disposition of a specific case by the federal district

1 See State v. Apotex Corp., 2012 UT 36, ¶¶ 63, 67, 282 P.3d 66;
Roark v. Crabtree, 893 P.2d 1058, 1062–63 (Utah 1995); Del Monte Corp.
v. Moore, 580 P.2d 224, 225 (Utah 1978); Greenhalgh v. Payson City, 530
P.2d 799, 802 n.14 (Utah 1975); In re Swan’s Estate, 79 P.2d 999, 1002
(Utah 1938); Ireland v. Mackintosh, 61 P. 901, 902–03 (Utah 1900).

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court,2 we requested supplemental briefing on the constitutional

dimension of the questions certified for our decision.3 The parties
submitted careful, extensive briefs on the constitutional question.
And we now clarify our law in light of this briefing.
¶5 We hold that the Utah Legislature is constitutionally
prohibited from retroactively reviving a time-barred claim in a
manner depriving a defendant of a vested statute of limitations
defense. This principle is well-rooted in our precedent, a point
meriting respect as a matter of stare decisis.4 It is also confirmed by
the extensive historical material presented to us by the parties in
their supplemental briefs, which shows that the founding-era
understanding of “due process” and “legislative power” forecloses
legislative enactments that vitiate a “vested right” in a statute of
limitations defense.
¶6 We resolve the questions certified to us on this basis. We do
not do so lightly. We respect and consistently defer to the
legislature’s judgment on the broad range of policy matters
committed to its discretion. And we acknowledge the reasonable
policy basis for the judgment the legislature made in seeking to
revive previously time-barred claims asserted by victims of child-sex

2 See Fundamentalist Church of Jesus Christ of Latter-Day Saints v.

Horne, 2012 UT 66, ¶ 8, 289 P.3d 502 (“Our function in a certified case
is not to issue abstract, advisory opinions on general matters of
interest to the federal courts. It is to resolve disputed questions of
state law in a context and manner useful to the resolution of a
pending federal case.”).
3 We acknowledge that supplemental briefing may delay the
timely disposition of a case and may increase litigation costs. But our
commitment to procedural fairness may outweigh these concerns in
cases like this one that implicate important constitutional issues that
the parties have not had an opportunity to address in briefing or at
oral argument.
4 See Eldridge v. Johndrow, 2015 UT 21, ¶¶ 21–22, 345 P.3d 553
(explaining that we do not “overrule our precedents ‘lightly’” and in
considering whether to do so we look at “(1) the persuasiveness of
the authority and reasoning on which the precedent was originally
based, and (2) how firmly the precedent has become established in
the law since it was handed down” (citation omitted)); see also supra
¶ 3 n.1.

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abuse. The devastating effects of child-sex abuse can span a lifetime.

And as the legislature has indicated, it may take “decades for
children and adults to pull their lives back together and find the
strength to face what happened to them”—particularly where (as is
too often the case) “the perpetrator is a member of the victim’s
family” or a friend or confidant. UTAH CODE § 78B-2-308(1).
¶7 We would thus uphold the legislature’s decision if the
question went merely to the reasonableness of its policy judgment.
But that is not the question presented for our review. We are asked
instead to interpret and apply the terms of the Utah Constitution (in
particular, the Due Process Clause). We take a solemn oath to uphold
that document—as ratified by the people who established it as the
charter for our government, and as they understood it at the time of
its framing. That understanding is controlling.
¶8 The original meaning of the constitution binds us as a
matter of the rule of law. Its restraint on our power cannot depend
on whether we agree with its current application on policy grounds.
Such a commitment to originalism would be no commitment at all. It
would be a smokescreen for the outcomes that we prefer.
¶9 Our laws are written down for a reason. And a key reason is
to establish clear, fixed limits that the public may rely on—unless
and until the law is repealed or amended by established procedures
for doing so. The people of Utah retain the power to amend the Utah
Constitution to alter the legislature’s authority in this area if they see
fit. But the document as it stands (and as originally understood)
forecloses the legislature’s power to enact legislation that
retroactively vitiates a ripened statute of limitations defense.
¶10 We expand on these points below. First we show that the
legislature’s power to vitiate a vested right in a ripened limitations
defense is foreclosed by our precedent. Then we establish that the
principles set forth in our precedent are consistent with the original
understanding of due process. And we close by reinforcing our
conclusion that the limits on the legislature remain despite the
reasonable basis for its policy judgments in this field.
I. UTAH SUPREME COURT PRECEDENT
¶11 Beginning in 1897 and continuing for over a century, this
court has repeatedly stated that the legislature lacks the power to
revive a plaintiff’s claim in a manner that vitiates a “vested” right of
a defendant. Our cases have been less than crystal clear in
identifying a constitutional basis for this principle. But the “vested
rights” limitation on the legislative power is firmly rooted in our
case law. This limitation, moreover, has long been extended to the
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specific vested right asserted by Roberts—the right to retain a statute

of limitations defense after a plaintiff’s claim has expired under
existing law. And we conclude that our precedent merits respect as a
matter of stare decisis.
A. Our Case Law
¶12 Our first articulation of the “vested rights” limitation on the
legislative power came in In re Handley’s Estate, 49 P. 829, 832 (Utah
1897). That case arose out of a conflict regarding the distribution of a
polygamist father’s estate among his children through both his legal
marriage and his polygamous marriage. Id. at 829. Following the
father’s death, the children through the polygamous marriage did
not receive any portion of the father’s estate. Id. And they
unsuccessfully sued to be recognized as heirs. Id. In 1896, several
years after the final judgment against the children of the polygamous
marriage, the Utah Legislature enacted a statute purporting to allow
the polygamous children to relitigate the dispute and inherit a
portion of the father’s estate. Id. at 829–30. In relevant part, that
statute clarified that “the issue of . . . polygamous marriages” were
“entitle[d] . . . to inherit” under the preexisting inheritance statute.
Id. at 829. And it said “[t]hat in all cases involving the rights of such
issue to so inherit, heretofore determined adversely to such issue in
any of the courts of the territory of Utah, a motion for a new trial or
rehearing shall be entertained . . . and the courts shall thereupon
proceed to hear and determine said motion, and if granted to
proceed to hear and determine said case or cases without prejudice
from the lapse of time since the former hearing or any prior
determination of a like motion.” Id. at 829–30.
¶13 We struck this statute down as an unconstitutional exercise
of judicial power by the legislature. Id. at 830–31. In so doing, we
concluded that the legislature lacked the power to override a judicial
interpretation of law reflected in a final judgment. See id. at 830
(explaining that the legislature lacks the power to override a judicial
judgment “by a declaratory or explanatory law, giving the law under
which the decree was rendered a different construction”). We also
framed our separation of powers concerns in terms of “vested
rights.” We held that the legislature lacked the power to “attempt[]
by a retrospective act to furnish a method by which vested rights
could be divested, and to compel the courts to employ it.” Id. at 831.
Once “[t]he rights of the children of the lawful wife to the estate in
question were ascertained and settled by the decree,” we held that
they were “vested, and beyond the reach of any remedy . . . the
legislature could invent.” Id. Any other result, we explained, “would,
in effect, say that the legislature may exercise judicial powers,
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authorize and require the courts to set aside final judgments and
decrees, devest titles, and destroy and annihilate vested rights.” Id.
And we emphasized that “[t]he people of the state have not
intrusted such powers to the legislature.” Id.
¶14 We next applied the “vested rights” limitation in Ireland v.
Mackintosh, 61 P. 901 (Utah 1900). And we extended it to the specific
“right” asserted by Roberts here—a right to retain a statute of
limitations defense after the limitations period has run. The statute at
issue in Ireland extended the limitations period for actions on
instruments such as notes from four years to six years. Id. at 902. By
the time the legislature enacted this statute, the Ireland claimant’s
four-year limitations period had lapsed. Id. at 901–02. The claimant
cited the statute, however, in support of the view that her claim
(filed within six years) was revived. Id. at 902. We rejected that
position. In so doing, we noted that the defendant had acquired a
“vested right” once the statute of limitations had run. See id. at 904
(noting that “when appellant’s right of action on the note in question
became barred under the previous statute, the respondent acquired a
vested right, in this state, to plead that statute as a defense and bar to
the action”). And we held that the legislature lacked the power to
vitiate that vested right.5 Quoting Thomas Cooley’s treatise on
constitutional limitations, we held that “[i]t is certain that he who
has satisfied a demand cannot have it revived against him, and he
who has become released from a demand by the operation of the
statute of limitations is equally protected.” Id. at 903 (quoting
THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS
WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE
AMERICAN UNION 454 (6th ed. 1890)). “In both cases,” we explained,

5 Our Ireland decision concededly included an alternative basis

for our ruling. Elsewhere in the opinion we concluded that “it was
not the intention of the legislature to revive causes of action on
claims which had previously become stale, and against which the
statute had fully run.” Ireland v. Mackintosh, 61 P. 901, 904 (Utah
1900). And we rooted that conclusion in principles of statutory
interpretation—noting the “rule of construction” presuming that
statutes have only “prospective effect,” and holding that the
legislature had not clearly stated its intent to revive time-barred
claims. Id. But this alternative basis for the Ireland decision does not
erase the “vested rights” analysis, which we have repeatedly
endorsed in subsequent decisions.

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“the demand is gone, and to restore it would be to create a new

contract for the parties[—]a thing quite beyond the power of legislation.”
Id. (emphasis added) (quoting THOMAS M. COOLEY, A TREATISE ON
THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE
POWER OF THE STATES OF THE AMERICAN UNION 454 (6th ed. 1890)).
¶15 We have repeatedly restated Ireland’s constitutional
conclusion in subsequent cases. In In re Swan’s Estate, 79 P.2d 999
(Utah 1938), we confronted a statute of limitations that had been
extended from one year to three years. And we cited Ireland in
support of the view that this change could not “affect our decision”
because the change “was after the bar had become effective in th[e]
case.” Id. at 1002. Our analysis in Greenhalgh v. Payson City, 530 P.2d
799 (Utah 1975), is similar. There, we again refused to apply a new
statute extending a previous limitations period to a claim already
barred under the old statute. Quoting Ireland, we held that “[t]he
subsequent passage of an act by the legislature increasing the period
of limitation could not operate to affect or renew a cause of action
already barred.” Id. at 802 n.14 (citation omitted).6 Three years later
we again parroted the Ireland principle in Del Monte Corp. v. Moore,
holding that “if the statute has run on a cause of action, so that it is
dead, it cannot be revived by any . . . statutory extension.” 580 P.2d
224, 225 (Utah 1978).
¶16 Our more recent cases have reiterated this same principle. In
Roark v. Crabtree, for example, we noted that “[s]ince 1900, this court
has consistently maintained that the defense of an expired statute of
limitations is a vested right.” 893 P.2d 1058, 1062 (Utah 1995).7 And
we reemphasized, as in Ireland, that our state followed the majority
approach “[i]n refusing to allow the revival of time-barred claims
through retroactive application of extended statutes of limitations.”
Id. at 1063. “Accordingly, after a cause of action has become barred
by the statute of limitations the defendant has a vested right to rely on

6 The quoted language was contained in the syllabus of the

Ireland opinion.
7 The Roark decision, like Ireland, presented two alternative and
independent grounds for the result. First, the statute (and its
legislative history) did not give any indication that the statute in
question was to be applied retroactively. Roark v. Crabtree, 893 P.2d
1058, 1061–62 (Utah 1995). Second, the limitations defense had
vested and consequently the barred claim could not be revived by
statute. Id. at 1062–63.

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that statute as a defense . . . which cannot be taken away by legislation

. . . or by affirmative act, such as lengthening of the limitation
period.” Id. (alterations in original) (citation and internal quotation
marks omitted).
¶17 Our most recent reiteration of this point came in State v.
Apotex Corp., 2012 UT 36, 282 P.3d 66. In Apotex, the legislature had
extended the limitations period under the Utah False Claims Act
(UFCA) and expressly indicated that the extension should be applied
retroactively. Id. ¶ 14. The claim at issue had already become time-
barred under the previous limitations statute. Id. ¶ 63. And the State
argued that the new extended limitations period should nonetheless
apply because “the legislature expressly made this provision
retroactive.” Id. We disagreed. We held that “[t]he amended UFCA
cannot resurrect claims that have already expired” because “the
defense of an expired statute of limitations is a vested right . . . which
cannot be taken away by legislation.” Id. ¶ 67 (citation omitted).
B. Stare Decisis
¶18 Mitchell questions the vitality of a “vested rights” limitation
on the legislature’s power to adopt retroactive legislation. She
acknowledges that this court endorsed such a limitation in State v.
Apotex Corp., 2012 UT 36, 282 P.3d 66, but insists that Apotex
contradicts precedent stretching back to the founding era.
¶19 Mitchell reads our older cases as establishing only a
substantive canon of construction or “clear statement rule”—not an
outright limit on legislative power. In Mitchell’s view, this canon
asked first whether the retroactive effect of a statute was stated
clearly. If so, the case law (as Mitchell reads it) upheld retroactive
legislation even if interfered with a vested right. The vested rights
principle, in Mitchell’s view, came into play only where the
retroactive effect of a statute was not stated clearly. In that event,
Mitchell claims that our cases upheld the retroactive sweep of a
statute only if it was “procedural” and did not divest any vested
rights.
¶20 Some of Mitchell’s points are well-taken. Starting with
Ireland, our case law has long rested on two interrelated principles of
retroactivity—(a) a substantive canon or clear statement rule, under
which a statute is not read to operate retroactively unless the
legislature states its intention clearly; and (b) a rule prohibiting the
legislature from retroactively divesting a vested limitations defense
regardless of express retroactive language. And our cases have sent
mixed signals both about the scope of these principles and their
relationship to each other. In some cases we have articulated the
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second principle as an absolute limitation on judicial power. Yet in

others, as Mitchell indicates, we have at least implicitly suggested
that the legislature may retroactively divest vested rights if it clearly
states its intention to do so.
¶21 Further complicating things, our decisions have mostly
arisen in circumstances in which there is no clear, express statement
of legislative intent, leaving some question as to whether the vested-
rights limitation on legislative power is a freestanding constitutional
principle or merely a component of this court’s retroactivity analysis.
Apotex is the principal exception. There we were confronted with a
challenge to a 2007 amendment to the UFCA that expressly
purported to revive some previously time-barred claims under that
act.8 And we held that the legislature lacked the power to “resurrect
claims that have already expired” because “the defense of an expired
statute of limitations is a vested right . . . which cannot be taken
away by legislation . . . such as lengthening of the limitation period.”
Id. ¶ 67 (citations omitted).
¶22 Mitchell views Apotex as an aberration in our case law that
departs from over a century of precedent and is inconsistent with the
original meaning of the state constitution. She insists that neither our
case law prior to Apotex nor the original meaning of our constitution
supports the vested-rights limitation on the power of the legislature
to enact retroactive legislation. And she argues that the Apotex
decision carries minimal (if any) precedential weight as a matter of
stare decisis because its reasoning is unpersuasive. Mitchell criticizes
the Apotex court for its “failure to engage in any constitutional
analysis.” She also insists that the Apotex formulation is not firmly

8 “Prior to the legislature’s amendments to the UFCA in 2007, the

Act contained no specific statute of limitations.” State v. Apotex Corp.,
2012 UT 36, ¶ 65, 282 P.3d 66. But “Utah Code section 78–12–29(3)
provided that ‘[a]n action may be brought within one year . . . upon
a statute . . . for a forfeiture or penalty to the state.’” Id. (alterations in
original). This one-year limitations period had previously applied
and already run at the time of the Apotex case. The 2007
amendments, however, created a UFCA-specific imitations scheme
and expressly purported to revive some previously-barred claims.
See UTAH CODE § 26-20-15(2) (2007) (“A civil action brought under
this chapter may be brought for acts occurring prior to the effective
date of this section if the limitations period set forth in Subsection (1)
has not lapsed.”).

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entrenched in our law due to its recency and inconsistency with

prior case law.9 And she further claims that Apotex is simply wrong
as a constitutional matter, as in her view the Utah Constitution
contains no outright bar on legislative abrogation of a vested right
but only a prohibition on arbitrary attempts to do so.
¶23 Mitchell defends the statute at issue here under this
standard. She claims that it is not arbitrary, but rooted in the
legislature’s stated concerns about factors that might prevent the
victim of child sexual abuse from coming forward in a timely
manner. She notes that the legislature cited “research [showing] that
it takes decades for children and adults to pull their lives back
together and find the strength to face what happened to them” and
that “the perpetrator is [often] a member of the victim’s family” or,
at the very least, “rarely a stranger.” UTAH CODE § 78B-2-308(1). And
she insists that the statute withstands scrutiny because these
legislative findings show that the legislature was not arbitrarily
interfering with a statute of limitations defense.
¶24 We see the matter differently. Our cases admittedly have
sent mixed signals. But the constitutional limitation on legislative
power articulated most recently in Apotex is entitled to respect as a
matter of stare decisis. And an analysis of that doctrine in the context
of this case reveals that the doctrine of stare decisis cuts against
Mitchell’s position rather than in favor of it for several reasons.
¶25 First, the vested rights limitation on legislative power can be
traced through our decisions for more than a century. See supra
¶¶ 12–17. Our cases may not have identified a clear constitutional
basis for the vested rights limitation on the legislative power. But we
have long articulated it as a hard limitation on the legislative
power—a clear prohibition on legislative attempts to vitiate vested
rights. And for well over a century we have specifically held that a
defendant acquires a “vested right” in a statute of limitations
defense once the limitations period has run. This limitation was
articulated as one of the grounds for our decision in Ireland. And it
formed the sole basis for our clear holding in Apotex.

9 See Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553

(explaining that “two broad factors that distinguish between
weighty precedents and less weighty ones: (1) the persuasiveness of
the authority and reasoning on which the precedent was originally
based, and (2) how firmly the precedent has become established in
the law since it was handed down”).

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¶26 Second, we are persuaded that these statements of a hard-

and-fast constitutional rule limiting the legislature’s power is
consistent with the original understanding of our state constitution.
See infra Part II. Consequently, statements in our case law that
suggest otherwise are unpersuasive departures from the original
meaning of our state charter. And we do not feel at all tethered to
these statements so clearly running contrary to that original meaning
here because our case law also amply supports an understanding of
legislative power and vested rights that is consistent with the
original meaning of the constitution.
¶27 Third, when we were confronted with a case in which the
legislature did in fact express its intent to retroactively divest vested
rights head on, we held that it lacked the power to do so. See Apotex,
2012 UT 36, ¶ 67 (holding the legislature lacked the power to
“resurrect claims that have already expired” because “the defense of
an expired statute of limitations is a vested right . . . which cannot be
taken away by legislation . . . such as lengthening of the limitation
period” (citations omitted)). This ruling was consistent both with
statements of the vested rights limitation in our prior case law and
the original meaning of the constitution.
¶28 Finally, clear statements of constitutional limitation in our
historical cases generally and in Apotex specifically identify a
straightforward, workable rule of law. See State v. Wilder, 2018 UT 17,
¶ 26, 420 P.3d 1064 (identifying a decision’s “workability, i.e., how
well it’s ‘worked in practice,’ and whether it’s generated more harm
than good” as considerations in whether to overrule precedent
(citation omitted)). The rule at stake, moreover, is a principle that
may sustain substantial reliance interests. Eldridge v. Johndrow, 2015
UT 21, ¶ 22, 345 P.3d 553 (explaining that we examine “how well [a
precedent] 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”
in our stare decisis analysis).
¶29 For these and others reasons we could uphold Roberts’s
position in this case purely on stare decisis grounds. We need not do
so here, however, because we also conclude that the position set
forth in our precedent is also correct as a matter of first principles—
under the original understanding of our Utah Constitution.
II. ORIGINAL UNDERSTANDING
¶30 The “vested rights” limitation set forth in our case law is
also consistent with the original understanding of the Utah
Constitution. Our legislature has broad, sweeping power. See UTAH
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CONST. art. VI § 1(1) (“The Legislative power of the State shall be

vested in . . . the Legislature of the State of Utah . . . .”). But that
power is not boundless. It is circumscribed by a range of limitations
in the state and federal constitutions. And an original understanding
of “legislative power” and the state constitutional right to “due
process” confirms the principle set forth in our longstanding case
law.
¶31 The Due Process Clause is not “a free-wheeling
constitutional license for courts to assure fairness on a case-by-case
basis.” In re Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186. It is a
“constitutional standard . . . measured by reference to ‘traditional
notions of fair play and substantial justice.’” Id. (citation omitted).
The historical standard, moreover, encompasses key limitations on
the powers of the branches of government. Under our constitution,
the executive has the power to enforce law (not to make it), the
judiciary has the power to adjudicate cases under existing law in
accordance with established procedures, and the legislature has the
power to enact general laws to govern behavior going forward.10 The
guarantee of due process, as originally understood, is a principle for
enforcement of these limitations. As applied to the question
presented here, the due process guarantee has long been understood
as a limitation on the legislative power—a prohibition of legislative
acts that retrospectively divest a person of vested rights lawfully
acquired under pre-existing law.
¶32 In the sections below, we show that this conclusion is
confirmed by the general understanding of due process and
legislative power in the late nineteenth century. Then we explain
that the same understanding prevailed in Utah. And we conclude by
establishing that a ripened limitations defense was viewed as a
vested right protected from legislative interference.

10 See Carter v. Lehi City, 2012 UT 2, ¶¶ 34, 37, 269 P.3d 141
(“Legislative power generally . . . involves the promulgation of laws
of general applicability . . . . This power is different from the
executive power, which encompasses prosecutorial or administrative
acts aimed at applying the law to particular individuals or groups
based on individual facts and circumstances. It is also distinguished
from the judicial power, which involves the application of the law to
particular individuals or groups . . . by resolving specific disputes
between parties as to the applicability of the law to their actions.”).

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Opinion of the Court

A. Original Understanding of Due Process and Vested Rights

¶33 In the latter part of the nineteenth century the principle of
due process was viewed at least in part through the lens of the
separation of powers and the concept of vested rights.11 Due process
thus flavored the original understanding of the “legislative power”
throughout the country and specifically in Utah. And the original
understanding of the ratifying public dictates our answer to the
questions presented in this case.12

11 See Nathan S. Chapman & Michael W. McConnell, Due Process

As Separation of Powers, 121 YALE L.J. 1672, 1781–82 (2012)
(establishing that “[t]he basic idea of due process . . . at the time of
adoption of the Fourteenth Amendment, was that the law of the land
required each branch of government to operate in a distinctive
manner”; noting that under this framework “the legislature could
not retrospectively divest a person of vested rights”); see also
Proceedings and Debates of the Convention Assembled to Adopt a
Constitution for the State of Utah, Day 31 (Apr. 3, 1895),
https://le.utah.gov/documents/conconv/utconstconv.htm
[hereinafter Constitutional Convention] (stating that it is a violation of
due process for the legislature “to take what is by existing law the
property of one man and without his consent transfer it to another,
with or without compensation”); Ireland v. Mackintosh, 61 P. 901, 902
(Utah 1900) (framing its analysis of the legislature’s power to revive
a time-barred limitations defense as a due process issue; holding that
the legislature lacked the power to vitiate a vested right in a ripened
statute of limitations defense).
In citing this originalist evidence in support of our holding, we
are not suggesting that the vested rights concept represents the sum
and substance of the original conception of due process. Our case
law has long endorsed other elements of the guarantee of due
process. And our holding today should not be viewed as rejecting
any of our existing precedent. Nor should it be viewed as foreclosing
other historical dimensions of the guarantee of due process. See
Chapman & McConnell, supra, at 1676–77 (citing an extensive body
of scholarship aimed at uncovering the original understanding of
“due process”).
12See Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 67, 416
P.3d 663 (“[T]his court should look to the original meaning of the
Utah Constitution when properly confronted with constitutional
issues.”); Am. Bush v. City of South Salt Lake, 2006 UT 40, ¶ 66, 140
(continued . . .)
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¶34 In the era of the framing of the Utah Constitution, the public
understood the principle of “due process,” at least in part, as a
matter relegating certain functions to the courts and not the
legislature. Nathan S. Chapman & Michael W. McConnell, Due
Process As Separation of Powers, 121 YALE L.J. 1672, 1781–82 (2012).
The legislature was viewed as prohibited from exercising judicial
functions—in interpreting and applying the law to the disposition of
a case in which a party’s rights or property were in dispute.13 “This
meant the legislature could not retrospectively divest a person of
vested rights that had been lawfully acquired under the rules in
place at the time.” Id. at 1782. The legislature “could enact general
laws for the future, including the rules for acquisition and use of
property, but [it] could not assume the ‘judicial’ power of deciding
individual cases.” Id. Retroactive divestment statutes were viewed as
judicial in nature (in the nature of “deciding individual cases”)
because these laws were backward looking and operated to deprive
individuals of rights and property “acquired under the rules in place
at the time” of acquisition. Id. at 1782; id. at 1738 (“[C]ourts
invalidated legislative acts to protect vested rights because the acts
were quasi-judicial ‘sentences’ rather than genuine ‘laws.’”). Thus,
valid legislative acts, in contrast to retroactive divestment statutes,
stated the law going forward rather than “determin[ing] specific
applications of law or . . . punish[ing] past acts”—functions relegated
to the judiciary.14 Id. at 1719. Because divestment statutes operated to
confiscate or vitiate previously vested rights, the nineteenth-century
public viewed these laws as “judicial decrees in disguise.” Nathan N.

P.3d 1235 (explaining that “[i]t is not our place” to “substitut[e] our
own value judgment for that of the people of Utah when they
drafted and ratified the constitution”).
13 The vested-rights principle of due process should not be
confused with the modern notion of “substantive due process”
developed in cases like Lochner v. New York, 198 U.S. 45 (1905). See
Chapman & McConnell, supra note 11, at 1678–79 (“It was not until
well after the ratification of the Fourteenth Amendment that . . .
notions took hold in the form of what we now call substantive due
process.”).
14 “All criminal and civil disputes between two private parties—
all cases in which it was possible for a private citizen to ‘be deprived
of life, liberty, or property’—were allocated to a separate judiciary.”
Id. at 1730.

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Frost et al., Courts over Constitutions Revisited: Unwritten

Constitutionalism in the States, 2004 UTAH L. REV. 333, 382 (2004)
(citation omitted). And the public viewed such legislative
encroachment into the domain of the judiciary as unconstitutional
both as a matter of the principle of separation of powers itself15 and
under the due process clause, which was understood as policing the
division of powers between coordinate branches of government.16
B. Early Utah Case Law and State Convention Records
¶35 The historical view set forth above is confirmed by the
principles endorsed in two of this court’s early cases— In re
Handley’s Estate and Ireland. See supra ¶¶ 12–14. These cases show
that founding-era Utahns understood, according to the constitutional
orthodoxy of the era, that the Utah Legislature lacked the power to
retroactively divest vested rights. In In re Handley’s Estate, for
example, we held that the legislature lacked the power to “attempt[]

15 Nathan N. Frost et al., Courts over Constitutions Revisited:

Unwritten Constitutionalism in the States, 2004 UTAH L. REV. 333, 382
(2004); see also supra ¶¶ 12–13 (describing our 1897 decision in In re
Handley’s Estate, 49 P. 829, 831 (Utah 1897), where we held that the
legislature lacked the power to “attempt[] by a retrospective act to
furnish a method by which vested rights could be divested” because
allowing it to do so “would, in effect, say that the legislature may
exercise judicial powers”).
16 See generally Chapman & McConnell, supra note 11. This
principle seems to jibe with the historical analysis of the “open
courts” right advanced by one member of this court in a concurring
opinion. See Waite v. Utah Labor Comm’n, 2017 UT 86, ¶ 77, 416 P.3d
635 (Lee, A.C.J., concurring) (“The open courts cases in place at the
time of our constitution’s framing recognized a limit on the
legislative abrogation of ‘vested rights’—rights in claims that had
accrued prior to the enactment of the legislation in question. But
there was a general consensus in the cases that no one had a general
vested right in the law; only vested causes of action were protected.
With this in mind, courts routinely held that the legislature had
plenary authority to prospectively amend or abrogate existing causes
of action or available remedies.” (footnote omitted)). But see id.
¶¶ 31–34 (majority opinion) (challenging the propriety of the
concurrence’s historical inquiry given the posture of the case and
deciding the case under the open courts standard in Judd v. Drezga,
2004 UT 91, 103 P.3d 135).

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by a retrospective act to furnish a method by which vested rights

could be divested” because allowing the legislature to do so “would,
in effect, say that the legislature may exercise judicial powers . . .
[t]he people of the state ha[d] not intrusted . . . to [it].” 49 P. 829, 831
(Utah 1897). And in Ireland v. Mackintosh, we explained that “he who
has become released from a demand by the operation of the statute
of limitations” could not have that demand restored because “the
demand is gone, and to restore it would be to create a new contract
for the parties[—]a thing quite beyond the power of legislation.” 61
P. 901, 903 (Utah 1900) (quoting THOMAS M. COOLEY, A TREATISE ON
THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE
POWER OF THE STATES OF THE AMERICAN UNION 454 (6th ed. 1890)).
¶36 The limitation on legislative power detailed in our early case
law is also reinforced by the records of our state constitutional
convention. Delegates did not explicitly consider the
constitutionality of the legislative revival of a time-barred claim. But
they repeatedly referred to the concept of “vested rights” in the
context of the legislative power to enact retroactive laws. And their
statements provide evidence of the original understanding of due
process, helping us in our attempt to “ascertain and give power to
the meaning of the text as it was understood by the people who
validly enacted it as constitutional law.”17 They also further the goal
of “immers[ing ourselves] in the shared linguistic, political, and legal
presuppositions and understandings of the ratification era.”18
¶37 We have long looked to founding-era materials like the
records of the constitutional convention in ascertaining the meaning
of the Utah Constitution. See Richardson v. Treasure Hill Mining Co., 65
P. 74, 81 (Utah 1901) (interpreting article XII, section 18 by examining
“[the framers’] discussions upon this subject[] [i]n the official report
of the proceedings of the constitutional convention”). And we follow
that practice here.
¶38 The delegates’ discussion at the ratification debates suggests
that they understood retroactive interference with vested rights as a
matter beyond the power of the legislature. These statements can be
separated into two categories. In the first category, the delegates
voiced opinions to the effect that even the constitution they were
drafting could not operate to retroactively divest a vested right. The

17 Richards v. Cox, 2019 UT 57, ¶ 13, 450 P.3d 1074.

18 Neese, 2017 UT 89, ¶ 98.

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second category is comprised of statements suggesting that delegates

viewed the due process clause they were drafting in accordance with
the general nineteenth-century understanding of due process as
described above, supra Part II.A. And that understanding of the
state’s due process clause prohibited retroactive legislative
interference with vested rights.
¶39 Several delegates seem to have viewed vested rights as
beyond the reach of the Utah Constitution itself—presumably by
limitations imposed through the Due Process Clause of the United
States Constitution. These statements indicate the view that vested
rights were beyond interference. Delegate Franklin Richards,
perhaps referencing external federal restraints on state power such
as federal due process, said that “it has been said that the adoption
of any article or provision in this Constitution cannot interfere with
vested rights; that is true.” Constitutional Convention, Day 54 (Apr. 26,
1895). And when discussing a proposed constitutional provision
regarding water law, Delegate Maloney voiced the opinion that
“[y]ou cannot take away vested rights by constitutional amendment
or enactment, or by any act of the Legislature. That has been
determined over and over again.” Id. Day 47 (Apr. 19, 1895).
¶40 The delegates also expressed views suggesting that the Utah
Due Process Clause conferred protections consistent with the general
nineteenth-century understanding of due process. On the thirty-first
day of the convention, Delegate Charles Varian parroted the general
due process understanding of the era when he quoted “Mr. Justice
Sharswood . . . speaking for the supreme court of Pennsylvania” who
had said that
[i]f . . . an act of assembly, whether general or special,
public or private, operates retrospectively to take what
is by existing law the property of one man and without
his consent transfer it to another, with or without
compensation, it is in violation of that clause in the bill
of rights which declares that no man can be
deprived of his life, liberty, or property, unless by the
judgment of his peers, or the law of the land. By “the
law of the land” is meant, not the arbitrary edict of any
body of men, not an act of assembly, though it may
have all the outward forms of a law, but due process of
law by which either what one alleges to be his property
is adjudged not to be his, or it is forfeited upon his
conviction by his peers of some crime for which by law
it was subject to forfeiture, when the crime was
committed. If this be not so, every restriction upon
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legislative authority would be a vain formula of words

without life or force.”
Id. Day 31 (Apr. 3, 1895). Varian also suggested, seemingly in
reference to the state Due Process Clause, that provisions of the
constitution outside of the takings provision being debated at the
time would prevent interference with vested rights: “I have it, it is
mine, it belongs to me, it is vested in me, it is protected, not only in
the Constitution in other sections, but by the general law underlying
all constitutions.” Id. Day 22 (Mar. 25, 1895) (emphasis added).
¶41 These statements, together with our early case law, confirm
the view that early Utahns viewed the guarantee of due process as a
limitation on legislative power. They understood that the due
process guarantee foreclosed legislative acts vitiating a person’s
vested rights.
¶42 The key question that arose at the convention was not
whether the legislature lacked the power to divest vested rights but
which rights qualified as vested. As Delegate Richards indicated, “it
has been said that the adoption of any article or provision in this
Constitution cannot interfere with vested rights; that is true. But
what are vested rights? That is the question.” Id. Day 54 (Apr. 26,
1895). We turn to that question next.
C. A Ripened Limitations Defense as a Vested Right
¶43 A vested right is “a term of art with a specific, historical
meaning.”19 And by the time of the framing of the Utah Constitution,
vested rights were a well-established class of property. Just a year
prior to the drafting of the Utah Constitution in 1895, this court’s
territorial antecedent defined a vested right as “title, legal and
equitable, to the present and future enjoyment of property, or to the
present enjoyment of a demand or a legal exemption from a
demand.” Toronto v. Salt Lake Cty., 37 P. 587, 588 (Utah 1894). And
“Thomas Cooley, the preeminent authority of the late nineteenth
century on state constitutional matters,”20 defined vested rights in
similar terms in the 1870s: “a vested right . . . is something more than
such a mere expectation as may be based upon an anticipated

19 Waite v. Utah Labor Comm’n, 2017 UT 86, ¶ 81, 416 P.3d 635 (Lee,
A.C.J., concurring).
20 Am. Bush v. City of South Salt Lake, 2006 UT 40, ¶ 13, 140 P.3d
1235.

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continuance of the present general laws: it must have become a title,

legal or equitable, to the present or future enjoyment of property, or
to the present or future enforcement of a demand, or a legal
exemption from a demand made by another.” THOMAS M. COOLEY, A
TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE
LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 415 (3rd
ed. 1874).
¶44 A ripened limitations defense seems to fit within this
definition, since it is at least arguably “a legal exemption from a
demand.” Id. And that conclusion is confirmed by founding-era
evidence on this precise question. The Ireland case, discussed in
detail above, supra ¶ 14, speaks to this question. Ireland was decided
just a few years after Utah attained statehood. And the Ireland
opinion’s lengthy due process21 analysis provides compelling
evidence that early Utahns viewed revival of a time-barred claim as
an impermissible interference with a vested right.
¶45 The Ireland court began its constitutional analysis by noting
that the appellant had argued that her claim should be revived
under Campbell v. Holt, 115 U.S. 620 (1885)—a United States Supreme
Court opinion dealing with due process rights in the context of a
limitations defense. Ireland v. Mackintosh, 61 P. 901, 902 (Utah 1900).
In Campbell the Court had referenced the general understanding of
vested rights in the context of due process when it said that “it may
. . . very well be held that in an action to recover real or personal
property, where the question is as to the removal of the bar of the
statute of limitations by a legislative act passed after the bar has
become perfect, that such act deprives the party of his property
without due process of law.” 115 U.S. at 623 (emphasis added). But as
the Ireland court noted, Campbell then concluded (over a vigorous
dissent) that due process rights were not implicated because “no one
has property in the bar of the statute as a defense to a promise to pay
a debt, and that such a bar may be removed by the repeal of the
statute.”22 Ireland, 61 P. at 902.

21 While the opinion made explicit reference to “due process”

only once, it began its discussion with the due process reference; and
the balance of the discussion stemmed from this starting principle.
See generally Ireland v. Mackintosh, 61 P. 901 (Utah 1900).
22 In Campbell v. Holt, the Court held that “[w]e certainly do not
understand that a right to defeat a just debt by the statute of
limitations is a vested right, so as to be beyond legislative power in a
(continued . . .)
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¶46 This court disagreed with the latter conclusion, reasoning

that the Campbell dissent had it right. A ripened limitations defense
was a vested right that could not be retroactively divested by the
legislature—“the respondent acquired a vested right . . . to plead th[e
limitations] statute as a defense and bar to the action.” Id. at 904. In
support of its decision, the Ireland court explained that such holding
would be unwise because it would allow the revival of stale claims
even decades after repose had been granted: “Unless, therefore, the
right to interpose the defense of the statute in the place where the bar
has occurred be held to be a vested, permanent right, a stale claim
which has remained barred for more than 20 years, if after that time
the statute shall have been removed, may be enforced.” Id.
¶47 This court was not alone in rejecting the Campbell majority’s
conclusion that a limitations defense was not a vested right that
triggered due process protections. Contemporary academics and a
large number of other states also viewed Campbell as a constitutional
aberration. One 1909 treatise recognized that Campbell “stands
almost alone” in its view.23 3 SELECT ESSAYS IN ANGLO-AMERICAN
LEGAL HISTORY 569 n.1 (1909). And the Ireland court noted that other
states had rejected the Campbell approach: “While the majority
opinion in th[e Campbell] case is supported by a few of the state
courts, a much greater number sustain the minority opinion.” Ireland, 61
P. at 902 (emphasis added). The Ireland court also referenced
numerous other authorities aligned with the Campbell dissent’s view
that legislative interference with a vested limitations defense was
outside the bounds of legislative action. The Ireland court quoted
Thomas Cooley, for example, who had written that “[i]t is certain
that he who has satisfied a demand cannot have it revived against
him, and he who has become released from a demand by the
operation of the statute of limitations is equally protected. In both
cases the demand is gone, and to restore it would be to create a new
contract for the parties[—]a thing quite beyond the power of legislation.”
Id. at 903 (emphasis added) (citation omitted).

proper case.” 115 U.S. 620, 628 (1885). This holding was an outlier in
the era.
23 It bears mentioning that Campbell did not reject the vested-
rights due process framework. It merely held that a limitations
defense did not fall under the umbrella of vested rights. And it was
the latter holding that cut against the grain of constitutional thought
in the late nineteenth and early twentieth centuries.

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¶48 For these reasons we are convinced that the Ireland decision
reflects the constitutional zeitgeist that binds us. Campbell is an
aberration. And it is therefore clear that a ripened limitations defense
was historically viewed as a vested right beyond the reach of
legislative authority.
¶49 We need not comprehensively catalog the list of vested
rights that are protected from retroactive legislative interference to
resolve the questions presented. It suffices to conclude that a ripened
limitations defense is one of those rights. We so hold. And we
therefore conclude that Utah Code section 78B-2-308(7) is an
unconstitutional exercise of legislative power.
III. CONCLUSION
¶50 We can appreciate the moral impulse and substantial policy
justifications for the legislature’s decision to revive previously time-
barred claims of victims of child sex abuse. Child sex abuse is a
“massive national problem” whose devastating “effects . . . often
span a lifetime.”24 For a variety of reasons,25 moreover, “the majority
of child sexual abuse survivors [do] not disclose their abuse until
adulthood.”26 The legislature clearly had these concerns in mind in
enacting Utah Code section 78B-2-308(7). And that judgment is an
eminently reasonable one at a policy level.
¶51 The question presented for us, however, is not a matter of
policy. We are asked to give voice to the limitations on our
government established in the charter—the constitution—ratified by
the voice of the people. The terms of that charter merit our respect
unless and until they are amended or repealed. And we must

24 Symone Shinton, Note, Pedophiles Don’t Retire: Why the Statute of

Limitations on Sex Crimes Against Children Must Be Abolished, 92 CHI.-
KENT L. REV. 317, 318, 320 (2017).
25 See UTAH CODE § 78B-2-308(1) (finding that delayed reporting
occurs because “it takes decades for children and adults to pull their
lives back together and find the strength to face what happened to
them” and that “the perpetrator is [often] a member of the victim’s
family” or, at the very least, “rarely a stranger”).
26 Shinton, supra note 24, at 320.

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enforce the original understanding of those terms whether or not we

endorse its dictates as a policy matter.27
¶52 We render our decision with this in mind. The problems
presented in a case like this one our heart-wrenching. We have
enormous sympathy for victims of child sex abuse. But our oath is to
support, obey, and defend the constitution. And we find the
constitution to dictate a clear answer to the question presented. The
legislature lacks the power to retroactively vitiate a ripened statute
of limitations defense under the Utah Constitution.

27 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES 303 (2nd ed. 1851) (“[T]he policy of one age may ill
suit the wishes or the policy of another. The constitution is not to be
subject to such fluctuations. It is to have a fixed, uniform, permanent,
construction. It should be . . . the same yesterday, to-day, and for
ever.”); see also A.M. v. Holmes, 830 F.3d 1123, 1170 (10th Cir. 2016)
(Gorsuch, J., dissenting) (noting that “a judge who likes every result
he reaches is very likely a bad judge, reaching for results he prefers
rather than those the law compels”); Douglas H. Ginsburg,
Originalism and Economic Analysis: Two Case Studies of Consistency and
Coherence in Supreme Court Decision Making, 33 HARV. J.L. & PUB.
POL’Y 217, 237 (2010) (“By restricting the acceptable bases of a
decision, originalism limits the range of plausible outcomes. Indeed,
originalism has become more constraining as originalist
methodology has become more objective over time.”).

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