State v. Steed

                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 

                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH.,
                                Appellee,
                                       v.
                  JOAN A. STEED and FRANK J. STEED,
                             Appellants.

                              No. 20110441
                          Filed August 25, 2015

                      Third District, Salt Lake
                   The Honorable Robin W. Reese
                          No. 080922143

                                 Attorneys:
    Sean D. Reyes, Att‟y Gen., Brent A. Burnett, Asst. Att‟y Gen.,
                    Salt Lake City, for appellee
   Max D. Wheeler, Rodney R. Parker, Richard A. Van Wagoner,
                 Salt Lake City, for appellants

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
   JUSTICE DURHAM, JUSTICE PARRISH, and JUDGE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part and
                  concurring in the judgement.
   Having recused himself, JUSTICE HIMONAS does not participate
       herein; COURT OF APPEALS JUDGE JOHN A. PEARCE sat.




    Justice Parrish sat on this case and voted prior to her resignation
on August 16, 2015.
                              STATE v. STEED
                          Opinion of the Court
   CHIEF JUSTICE DURRANT, opinion of the Court:
                              Introduction
    ¶ 1 In this appeal, we are asked to decide the constitutionality of
Utah‟s Asset Preservation Statute. But in order to reach this issue, we
must first consider whether Ms. Steed‟s claims are justiciable.
Generally, if the requested judicial relief cannot affect the rights of
the parties, the case is moot and we will not hear it. Ms. Steed has
conceded her claims are technically moot. But she argues that our
mootness exception applies. Under this exception, we will hear a
technically moot case if it affects the public interest, is likely to recur,
and because of the brief time that any one litigant is affected, is likely
to evade review. We conclude that Ms. Steed‟s claims do not warrant
the application of this exception, because a freeze order under the
Asset Preservation Statute is not inherently short in duration and
thus is not likely to evade review. Because Ms. Steed has conceded
technical mootness and we conclude that our mootness exception
does not apply, we dismiss the case.
                               Background
    ¶ 2 The State sought, and received, an order freezing
$3,118,997.09 of Frank and Joan Steed‟s assets under Utah‟s Asset
Preservation Statute.1 On October 14, 2008, the district court entered
a temporary restraining order directing Zions Bank to preserve the
funds in the Steeds‟ personal and business banking accounts. The
next day the State filed criminal tax charges against the Steeds. The
State sought a freeze order to ensure adequate funds would be
available for the anticipated restitution award from the criminal tax
case. Thereafter, the freeze order was continued as a preliminary
injunction. In December 2008, the district court conducted an
additional evidentiary hearing regarding the freeze order, reviewing
it de novo, and upholding it. The district court also denied the
Steeds‟ motion to substitute a property bond for the funds under the
freeze order.
   ¶ 3 The Steeds were convicted of three counts of failure to file
tax returns and one pattern count of criminal fraud. Their ultimate
tax liability, as determined by the State Tax Commission auditors,
was $247,802. The district court ordered $553,446 of the frozen funds
be used to pay their tax obligations, penalties, interest, and fines. The
remainder was returned to the Steeds.



   1   See UTAH CODE § 77-38a-601.

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                            Cite as: 

                           Opinion of the Court
    ¶ 4 The Steeds filed a motion challenging the constitutionality
of the Asset Preservation Statute—both facially and as applied. They
contended that the statute violated the takings and due process
clauses of the Utah Constitution and the Fourteenth Amendment of
United States Constitution. They argued the statute was
unconstitutional on its face because it authorized the State to deprive
them of their personal property prior to filing criminal charges. And
they maintained the statute was also unconstitutional as applied to
the facts of this case because the State froze more funds than
necessary to secure future restitution. The Steeds also argued that
the State had failed to meet its burden under the statute.
    ¶ 5 The district court denied the motion and entered final
judgment on August 3, 2011. The Steeds appealed this decision. We
first heard this case on appeal from the district court‟s decision. After
oral argument, we remanded the case to the district court for
preliminary findings of fact and conclusions of law regarding the
Steeds‟ claim that they suffered “collateral legal consequences” from
the freeze order sufficient to overcome a mootness challenge.
Specifically, they argued that they would suffer ongoing harm
through reduced credibility in future business litigation and harm to
their business reputation generally. But due to Mr. Steed‟s
deteriorating health, they conceded the issue of technical mootness.
The Steeds‟ concession rendered the requested finding of fact on
remand unnecessary, so we recalled the case.
                                  Analysis
     ¶ 6 Because Ms. Steed has conceded that her claim is technically
moot, we now consider whether her challenge to the freeze order
meets the exception to our mootness doctrine. “An argument is moot
[i]f the requested judicial relief cannot affect the rights of the
litigants.”2 In other words, an appeal is moot if the controversy is
eliminated such that it renders the relief “requested impossible or of
no legal effect.”3 Once a court has determined that there is no
jurisdiction due to the absence of a justiciable controversy, “its
immediate duty is to dismiss the action.”4



   2 H.U.F. v. W.P.W., 

, ¶ 21, 

 (internal
quotation marks omitted).
   3Utah Transit Auth. v. Local 382 of the Alamgamated Transit Union,

, 

 (internal quotation marks omitted).
   4   Baird v. State, 

 (Utah 1978).

                                      3
                             STATE v. STEED
                          Opinion of the Court
   ¶ 7 Before we will address an issue that is technically moot, it
must (1) affect the public interest, (2) be likely to recur, and (3)
because of the brief time that any one litigant is affected, be likely to
evade review.5 The third element is dispositive in this case.
    ¶ 8 We note that in the past we have been somewhat loose in
our articulation of the third element of our mootness exception. We
have described this element in two different ways, as requiring the
issue to be (1) “capable of evading review” and (2) “likely to evade
review.”6 Upon reflection we have concluded that the “capable of
evading review” articulation of the third element is overly broad. We
therefore clarify that the proper articulation of our standard is the
one used herein—“likely to evade review.” We disavow any
language in our prior cases stating otherwise.
   ¶ 9 Issues that are likely to evade judicial review are those that
are inherently short in duration such that a court will likely be
unable to hear the issue when it still presents a live controversy.7 In
Local 382, we noted “such rapidly resolving issues” include “election
matters, closed political meetings, bar admissions, and abortion
cases.”8 Unlike these rapidly resolving issues, a freeze order under
the statute in question remains in place until the resolution of the
criminal matter and is not lifted until the court acts, either to order
funds paid in restitution to the State, to return funds to the
defendant, or both. While in some instances the criminal matter
could resolve quickly and thus render a freeze order incapable of
review, there will no doubt also be cases where judicial review is
possible while the controversy is live, as we explain below.




   5   Local 382, 

, ¶¶ 29−30.
   6 See, e.g., McBride v. Utah State Bar, 

,

 (internal quotation marks omitted).
   7 See, e.g., Navajo Nation v. State (In re Adoption L.O.), 

, 

 (“The types of issues likely to evade review are
those that are inherently short in duration so that by the time the
issue is appealed, a court is no longer in a position to provide a
remedy.” (internal quotation marks omitted)).
   8 

 (footnotes omitted) (citing Ellis v. Swensen,

, 

; Kearns—Tribune Corp. v. Salt Lake
Cnty. Comm’n, 

, ¶¶ 32−33, 

; McBride,

; McRae v. Jackson, 

 (Utah 1974)).

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                          Cite as: 

                         Opinion of the Court
   ¶ 10 Ms. Steed argues that freeze orders under the Asset
Preservation Statute are likely to evade review because defendants
will not prioritize challenging a civil freeze order over their criminal
defense. According to Ms. Steed, challenging a freeze order would
require a defendant to spend limited resources—further limited by
the freeze order itself—to challenge the civil freeze order while
diverting resources from the defense of criminal tax charges. As a
result, she argues, defendants will not pursue a civil matter when
criminal charges are pending.
    ¶ 11 In determining whether an issue is inherently short in
duration, we have traditionally focused on whether the issue itself
was of a rapidly resolving nature (and therefore likely to evade
review), and not on whether the issue is likely to evade review by
virtue of collateral choices future parties are likely to make.9 For



   9  See, e.g., Gregory v. Shurtleff, 

, ¶ 12 n.5, 

(“Since mootness is a characteristic of a dispute between parties
rather than a characteristic of the parties themselves, an exception to
the usual prohibition on considering moot questions will hinge on
the nature of the dispute.”); Ellis, 

; Kerns—Tribune
Corp., 

, ¶¶ 32−33. We note, however, that in McBride we
departed from our traditional approach, applying our mootness
exception to an issue that was inherently short in duration, not
because the issue itself was one that would rapidly resolve, but
because of the decisions those affected by the issue in the future
would likely make. 

, ¶ 15.
    In that case, we considered a challenge to the Utah Bar‟s
administration of the bar exam. Id. ¶ 11. While a flawed bar exam
may be challenged at any point within the applicable statute of
limitations, we found the issue inherently short in duration and thus
likely to evade review. We did so because it was unlikely that future
applicants would choose to challenge their bar exam results through
potentially lengthy litigation rather than simply retaking the bar,
which they could do as soon as six months after a failed attempt. Id.
¶ 15. Therefore, the likely choice of future litigants to simply take the
bar created only a six-month window for an appeal. Id.; see also Local
382, 

, ¶ 37 n.22 (“[S]ince the bar exam is offered every six
months a challenge to the bar‟s examination procedures was capable
of escaping review „[b]ecause it [wa]s highly unlikely, if not
impossible, that a claim such as this could be litigated from start to
finish in a six month period of time.‟” (second and third alterations
in original) (quoting McBride, 

)).
                                                              (Continued)
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                                STATE v. STEED
                             Opinion of the Court
instance, in Ellis v. Swensen, we looked to the inherently short
pendancy of the issue presented. In that case, we held that a
challenge to the wording of election ballots met this element of our
mootness exception “because sample ballots do not have to be
produced until seven days before the election.”10
    ¶ 12 In In re Adoption of L.O., we also focused on the short
duration of the issue itself. In that case, the parties disputed which
entity had jurisdiction over the adoption of an Indian child under the
Indian Child Welfare Act—the State or the Navajo Nation.11 The
issue was mooted, however, when the Navajo Nation consented to
the child‟s adoption.12 The Navajo Nation argued that the “dismissal
of the appeal on mootness grounds would effectively punish the
Navajo Nation for acting in the child‟s best interests and consenting
to the adoption before the appeal was fully resolved.”13 But we held
the case was moot because the “decision [to consent to the adoption]
does not establish that any jurisdictional disputes over 

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


    While noting this alternative analysis, we apply in the case now
before us our traditional analysis under the third element of our
mootness exception—focusing on the rapidly resolving nature of the
issue itself and not on the likely choices of future litigants. But under
either measure, the Steeds have not satisfied the third element of our
mootness exception.
    Justice Lee argues in his concurrence that we should overrule
McBride. Infra ¶ 20. We decline to do so, however, because neither
party has asked us to overrule the case nor argued that it applies in
the manner that Justice Lee suggests. “Those asking us to overturn
prior precedent have a substantial burden of persuasion.” State v.
Menzies, 

 (Utah 1994). We should tread cautiously in
overruling precedent and this is especially true where the parties
have failed to brief or even argue that a particular precedent should
be overruled. See State v. Baker, 

, 

(declining to resolve an issue “without the benefit of adversarial
briefing on the subject”).
   10   

.
   11   

, ¶¶ 3−4.
   12   Id. ¶ 5.
   13   Id. ¶ 10 (internal quotation marks omitted).
   14   Id. ¶ 11.

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                            Cite as: 

                           A.C.J. LEE, concurring
    ¶ 13 While it may be difficult or even impossible for some
defendants, such as the Steeds, to both defend against criminal
prosecution and simultaneously challenge a freeze order, that does
not make the freeze order itself inherently short in duration. We are
confident there will be cases where defendants with adequate
resources and motivation will have ample time to challenge a live
freeze order and fully litigate the issue. Indeed, the freeze order in
this case demonstrates that these orders can persist long enough to
be challenged. The order affecting the Steeds‟ rights was in place for
more than two years, and they had at least two routes to challenge it.
They could have sought certification of the freeze order as final15 or
sought permission to file an interlocutory appeal.16
    ¶ 14 We conclude that freeze orders under the Asset Preservation
Statute are not “inherently short in duration” so as to “likely evade
review”; and therefore, a claim challenging such an order does not
satisfy the third element of our exception to the mootness doctrine.
Because this requirement is not met, our exception to the mootness
doctrine is not satisfied.
                                 Conclusion
    ¶ 15 We conclude that the case is moot and that our mootness
exception does not apply. In the absence of a controversy directly
affecting the rights of the litigants, we decline to address the issues
presented and dismiss the case.


  ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring in
the judgment:
   ¶ 16 I concur in the majority‟s decision dismissing this matter on
mootness grounds, and also in much of its analysis. Specifically, I
agree that Joan Steed‟s claim does not qualify under the exception to
the mootness doctrine because a challenge to the question of the
legality of a freeze order is not one of those matters that are so
“inherently short in duration” that they naturally evade judicial
review. Supra ¶ 1. I also applaud the court‟s decision to pare back on
overbroad dicta in our prior cases in this area. For reasons explained
by the majority, we have painted with too broad a brush to the
extent we have spoken of a matter that is merely “capable of evading
review.” See supra ¶ 8 (internal quotation marks omitted). It is an


   15   See UTAH R. CIV. P. 54(b).
   16   See UTAH R. APP. P. 5.

                                     7
                              STATE v. STEED
                         A.C.J. LEE, concurring
important step in the right direction to clarify that mere capability is
not enough, and that a high likelihood of evading review is
necessary.
    ¶ 17 That clarification, moreover, is no mere matter of judicial
policymaking. As we noted in Utah Transit Authority v. Local 382 of
the Amalgamated Transit Union, the mootness doctrine is not “a mere
matter of convenience or judicial discretion.” 

, 

. It is a “constitutional principle” defined by an
understanding of the nature of the judicial power. Id.; see also id. ¶ 18
(“[Mootness] doctrine is an element of the principles defining the
scope of the ‟judicial power‟ vested in the courts by the Utah
Constitution.”). Thus, the mootness bar is rooted in the longstanding
prohibition on the issuance of advisory opinions.17 Our courts have
long eschewed that practice. And, as we noted in Local 382, the
framers of the Utah Constitution expressly rejected a provision that
would have authorized it. Id. ¶ 21. Those facts are significant, as a
moot controversy asks the court to issue an opinion that is merely
advisory (without any “meaningful impact on the practical positions
of the parties”). Id. ¶ 24.
    ¶ 18 These insights are important. For me they suggest the need
to limit exceptions to the mootness doctrine to those that are
embedded in historical judicial practice. The traditional exception—
for matters capable of repetition but evading review—seems to be
such an exception; it has been accepted for many decades in a long
line of cases.18 I would accept that exception on stare decisis grounds.
But I see no similar basis for the “alternative” approach we created
in McBride v. Utah State Bar, 

, 

. Supra ¶ 11 n.9.
That standard is of much more recent vintage; and it is not deserving
of stare decisis respect for reasons explained below.


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

, 

 (“The mootness doctrine
stems from the general principle that courts should not issue
advisory opinions . . . .”); see also McRae v. Jackson, 

 (Utah 1974) (“[Q]uestions or cases which have become moot or
academic are not a proper subject to review.”); Baird v. State, 

 (Utah 1978) (“[C]ourts are not a forum for hearing academic
contentions or rendering advisory opinions.”).
   18See S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 

 (1911) (recognizing “capable of repetition, yet evading
review” exception to mootness).

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                          Cite as: 

                         A.C.J. LEE, concurring
    ¶ 19 I write separately because I disagree with the majority‟s
treatment of the McBride decision. The McBride standard—extending
the mootness exception “to an issue that was inherently short in
duration, not because the issue itself was one that would rapidly
resolve, but because of the decisions those affected by the issue in the
future would likely make” supra ¶ 11 n.13—is troubling. It is more
an expression of a preference for reaching the merits of an issue in a
particular case than the application of a longstanding historical
exception. The McBride decision, moreover, seems difficult to
reconcile with the majority‟s analysis in this case. With McBride on
the books, Ms. Steed has a strong argument for an exception to the
mootness doctrine.
   ¶ 20 I would overrule McBride, as I see it as incompatible with
the longstanding prohibition on advisory opinions except in cases
where the issue in question is one that evades review by its nature.
As the majority indicates, the “traditional” formulation of the
exception to the mootness doctrine focuses on the inherent nature of
the issue presented. Supra ¶ 11. Under that standard, the McBride
case should have been dismissed as moot.
     ¶ 21 McBride filed suit to challenge the Utah State Bar‟s refusal to
grade a bar exam that he failed to upload in accordance with rules
prescribed by the bar. While his suit was pending, however, McBride
retook the bar exam and passed it. McBride, 

. That
rendered McBride‟s legal challenges to the bar‟s earlier action moot.
Id. ¶ 14 (acknowledging that “[t]he issues Mr. McBride presents are
moot” given that he had “retaken and passed” the bar exam and had
“been admitted to the Bar”). Yet the McBride court reached the merits
of his case anyway; it did so not because a claim like McBride‟s was
by its nature too rapidly resolving to be adjudicated in the ordinary
course, but because such a claim could be mooted by a litigant‟s
voluntary actions—because “an aggrieved applicant could retake the
[Bar exam] and be admitted to the Bar before the issue could be
litigated.” Id. ¶ 15.
    ¶ 22 The prospect of an issue being mooted by a litigant‟s
voluntary action is not a basis for an exception. None of this court‟s
prior decisions—or any of the longstanding cases from other
jurisdictions after which our cases are patterned—sustain an
exception under these circumstances. A litigant‟s voluntary action is
not a basis for an exception; it is a classic mooting event.19


   19 See, e.g., Phoenix Indem. Ins. Co. v. Smith, 

, 

 (“[W]here the actions of the parties themselves cause a settling of
                                                              (Continued)
                                      9
                            STATE v. STEED
                        A.C.J. LEE, concurring
   ¶ 23 If the mere possibility that a litigant “could” take action
mooting a case is enough, the exception will become the rule. That
has never been the law. McBride was thus an outlier. It should be
overruled because it authorized the use of judicial power in a case
that was moot and not within an historically recognized exception to
the doctrine of mootness.
    ¶ 24 It is one thing to exercise judicial power to address the
merits of an issue that is so inherently short in duration that judicial
review is necessarily evaded. A decision in those circumstances can
be justified on the ground that it is rooted in longstanding judicial
practice. That cannot be said of the “alternative” exception applied
in McBride, however. And without any historical basis for exercising
judicial power over cases that were voluntarily mooted by the
actions of the litigants, the court exceeds its power under article VIII
of the Utah Constitution.
   ¶ 25 I would decide this case on that basis. I would overrule
McBride and conclude that this case is moot because the issues raised
are not so inherently short in duration that they evade judicial
review.
   ¶ 26 The majority comes close to this same decision. It
characterizes the historically rooted exception as the “traditional”
one, speaks of the McBride formulation as a mere “alternative,” and
applies only the “traditional analysis” in “focusing on the rapidly
resolving nature of the issue itself and not on the likely choices of
future litigants.” Supra ¶ 11 n.9.
   ¶ 27 Yet the court stops short of overruling McBride. That is
perhaps understandable.20 Our past decisions are entitled to respect


their differences, the case becomes moot, and an appeal will be
dismissed as moot where the matter raised was settled by
agreement, such as by . . . . voluntary dismissal of a claim.” (internal
quotation marks omitted) (second alteration in original)); see
generally Utah Transit Auth. v. Local 382 of the Amalgamated Transit
Union, 

, 

 (question of the right to arbitrate
failed negotiations under a collective bargaining agreement mooted
by parties‟ successful negotiation of new agreement before legal
dispute had been resolved).
   20 I see no barrier to overruling McBride, however, based on the
fact that “neither party has asked us” to do 

 ¶ 11 n.9.
Adversary briefing is always preferable, of course. All things being
equal, we would undoubtedly benefit from briefing on the grounds
                                                         (Continued)
                                  10
                          Cite as: 

                         A.C.J. LEE, concurring
under the doctrine of stare decisis. But that doctrine is not an ironclad
rule but a general presumption. See Eldridge v. Johndrow, 

, 

. And the presumption is rebuttable, as in
circumstances where the decision in question is unworkable, and
thus does not sustain significant reliance interests. See 

 (explaining
that presumption may be rebutted depending on “the age of the
precedent, how well it has worked in practice, its consistency with
other legal principles, and the extent to which people‟s reliance on
the precedent would create injustice or hardship if it were
overturned”). The exception seems fitting here, as the McBride
formulation seems difficult to apply with any precision, and its
preservation seems more likely to result in arbitrariness than
consistency.
   ¶ 28 The majority‟s treatment of McBride illustrates the point.
Although the court does not apply the McBride standard explicitly, it
suggests that “the Steeds have not satisfied the third element of our
mootness exception” “under either measure” (i.e., the “traditional”
or “alternative” approach). Supra ¶ 11 n.9. But the court never
explores the point in any detail. And a careful comparison of this
case to McBride suggests that the two are close parallels—and thus
that the McBride exception is applied unpredictably.
     ¶ 29 As to McBride, it seems to me to overstate things to say that
it is “unlikely that future applicants would choose to challenge their
bar exam results through potentially lengthy litigation rather than
simply retaking the bar.” Supra ¶ 11 n.9. The difficulty and cost
(economic and psychic) of taking the bar exam is a substantial
barrier. And there is by no means a guarantee that one who fails the


for overruling one of our opinions. But that question is not an issue
we require to be preserved or presented before we may reach it. Cf.
supra ¶ 11 n.9 (citing State v. Baker, 

, 

, for
the proposition that an issue should not be resolved “without the
benefit of adversarial briefing on the subject”). The issue on appeal is
whether the case presents a live controversy sustaining our exercise
of judicial power. We may resolve that issue by reference to any and
all authorities we find relevant—including any that are not cited by
the parties, or any that are cited but are susceptible to overruling. We
have exercised such power before. The majority, in fact, exercises a
species of such authority here—in repudiating a formulation of the
mootness exception for issues “capable of evading review.” Supra
¶ 8. I would take the matter a step further in repudiating the
exception set forth in McBride.

                                   11
                            STATE v. STEED
                        A.C.J. LEE, concurring
exam the first time will pass on a second attempt. Exhibit “A” is the
existence of non-moot suits challenging the decisions of bar
examiners.21 People sue over bar exams because they are not anxious
to go through the ordeal again. And for that reason we cannot
reasonably conclude that decisions regarding a bar exam are “likely
to evade review” even under the standard articulated in McBride.
Contra Supra ¶ 11 n.9.
     ¶ 30 With McBride on the books, moreover, Steed has a good
argument for an exception to the mootness bar on advisory opinions.
If the mere prospect that a litigant could choose to retake the bar
exam is enough to sustain an exception, then the possibility that a
litigant might find it difficult to defend against a criminal charge
while also challenging a freeze order may also be enough. The
dilemma faced by the Steeds seems at least as difficult as that facing
McBride.22
   ¶ 31 The majority does not conclude otherwise. It simply says
that it is “confident there will be cases where defendants with
adequate resources and motivation will have ample time to

   21 See, e.g., In re Ivy, No. 7474, 

, at *2 (Alaska Dec.
7, 1983) (rejecting petitioner‟s procedural and substantive due
process claims after she had failed the bar exam on consecutive
administrations); Griffin v. Miss. Bd. of Bar Admissions, 

 (Miss. 2013) (rejecting petitioner‟s equal protection
challenge to the Mississippi bar after he failed the bar multiple times,
having attempted to pass it since 1992); Koerner v. Tenn. Bd. of Law
Exam’rs, No. 3-11-0707, 

, at *6 (M.D. Tenn. Feb. 28,
2012) (granting summary judgment to defendant after plaintiff failed
bar exam three times and argued that requirement that preparation
for fourth try be supervised by a state licensed attorney violated
ADA and Equal Protection Clause); Kelly v. W. Va. Bd. of Law
Exam’rs, No. 2:08-00933, 

, at *16 (S.D.W. Va. April
16, 2010) (rejecting plaintiff‟s ADA, equal protection, and due
process claims after he had failed the bar exam twice and his
requested accommodations were not granted).
   22 Perhaps it‟s true that Steed has not formulated her reliance on
McBride in these precise terms. See supra ¶ 11 n.9 (asserting that
“neither party has . . . argued that [McBride] applies in the manner”
articulated here). But she cited the case extensively in her briefs, and
my analysis here captures the essence of her argument. In all events,
we are hardly limited to the precise terms of the parties‟ analysis. We
may—must—engage in our own evaluation.

                                  12
                         Cite as: 

                        A.C.J. LEE, concurring
challenge a live freeze order and fully litigate the issue.” Supra ¶ 13.
That is undoubtedly correct. But this analysis does not distinguish
McBride. A parallel point could be made as to a challenge to the bar
exam; there are cases where bar examinees have adequate resources
and motivation to challenge the bar exam.
    ¶ 32 For these reasons, I see little distinction between this case
and McBride. To dismiss this case as moot, we should overrule
McBride instead of proffering an unpersuasive ground for
distinguishing it. By preserving the McBride exception, we invite
arbitrariness in future cases. I would avoid that problem by
overruling a decision that lacks an historical basis in the traditional
exercise of the judicial power.




                                  13