Originalism in the State Courts: Justice Tom Lee of the Utah Supreme Court on the Due Process Clause of the Utah Constitution

"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."

Enough about the United States Supreme Court. Let's highlight some positive news from the Utah Supreme Court. Last week that Court decided Terry Mitchell v. Richard Warren Roberts, a case on certification from the U.S. District Court for the District of Utah. The defendant's name should look familiar. Roberts previously served as the Chief Judge of the U.S. District Court for the District of Columbia. But in 2016, he abruptly resigned from the court after he was accused of raping Terry Mitchell, then a sixteen-year-old girl, three decades earlier. Terry sued Roberts, and relied on a Utah statute that revived claims that were otherwise barred by the statute of limitations.

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."

Under this statute, Mitchell's claims were timely. Roberts argued that the statute was invalid. In turn, the Magistrate Judge certified two questions to the Utah Supreme Court:

(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."

After oral arguments, the Utah Supreme Court recognized there was an "an embedded constitutional issue—as to the effect of due process limitations on the scope of the legislature's power in this area."

In turn, the Utah Supreme Court resolved this question based on the scope of the Utah Constitution. Associate Justice Thomas Lee (one of two Lees on President Trump's short list) wrote the majority opinion. And his decision was thoroughly originalist. But he did not write about the federal Constitution's original meaning. He parsed the original meaning of the Utah Constitution.

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. 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….

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.

I often write about "originalism in the lower courts." But Justice Lee shows that state Supreme Courts also have the ability to write originalist decisions. And Justice Lee nails the duty of originalist judging. These statements should be recited, verbatim, for many years to come.

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.

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.

Justice Lee carefully considers the understanding of the due process of law in the nineteenth century.

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.

He cites at some length from Nathan Chapman and Michael McConnell's must-read article, Due Process as Separation of Powers, as well as contemporary evidence from the Utah Constitutional Convention and early decisions.

FN11: 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).

Justice Lee also rejects a common shibboleth about the due process of law and modern substantive due process:

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.").

Justice Lee concludes:

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.

As a result the Utah statute that extended the statute of limitations was unconstitutional. Here, a careful, rigorous originalist analysis yielded a result the Court was clearly uncomfortable with.

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.

A good gut check for originalism is whether a decision leads to results you disagree with. Here, the Utah Supreme Court passed that gut check.