Thomas Rex Lee

Thomas Rex Lee (born 1964) is the Associate Chief Justice on the Utah Supreme Court. His nomination unanimously passed a vote by the Utah Supreme Court Judiciary Committee in mid-June 2010,^[1] and he was sworn in July 19, 2010.^[2]

Justice Lee had one of his clerks later clerk at the U.S. Supreme Court.^[3] Justice Lee is also a pioneer in law and corpus linguistics—the application of corpus linguistics to determine ordinary meaning in statutes—being the first American judge to do so in an opinion.^[4][5]

Justice Lee is the son of former United States Solicitor General Rex E. Lee. He received his bachelors in economics from Brigham Young University (BYU) and his law degree from the University of Chicago Law School. After graduating from law school, he clerked for Justice Clarence Thomas of the Supreme Court of the United States and Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit. Justice Lee has been a faculty member at BYU's J. Reuben Clark Law School since 1997, where he was the Rex and Maureen Rawlinson Professor of Law and the faculty adviser to the student chapter of the Federalist Society. He now teaches in an adjunct capacity after his appointment to the Utah Supreme Court.^[6] In 2008 Justice Lee was appointed associate dean for faculty and curriculum at the Clark Law School.^[7] Prior to his appointment to the Utah Supreme Court, Justice Lee also worked in private practice for the law firm of Howard, Phillips and Andersen.

In private practice, Justice Lee specialized in intellectual property law. Many of the intellectual property rights cases he has been involved in revolved around trade-mark infringements brought by or against automobile manufacturers such as General Motors and Ford Motor Company. He has also written multiple papers on the issues related to counting non-residents in the census with Lara J. Wolfson. And he has argued one case before the United States Supreme Court.^[8] He was Deputy Assistant Attorney General in the Civil Division of the United States Justice Department from 2004-2005. In 2002-2004 he served as the lead counsel in cases brought by the state of Utah in relation to plans to put nuclear waste on the Gosuite Indian Reservation.

Justice Lee and his wife Kimberly are the parents of six children. He is a member of the Church of Jesus Christ of Latter-day Saints. His brother, Mike Lee, was elected a U.S. Senator from Utah in 2010.

Early life, education, and career

Thomas Rex Lee was born in 1964 to parents Rex and Janet Lee. He grew up in Arizona, Utah and Northern Virginia. His undergraduate studies took place at Brigham Young University (BYU), graduating summa cum laude in 1988 with a bachelor's degree in economics.^[9] Lee pursued a law degree at the University of Chicago, graduating with high honors in 1991.^[10]

After receiving his law degree, Lee began a one-year term as a law clerk for the Honorable J. Harvie Wilkinson, III of the United States Court of Appeals for the Fourth Circuit (1991–92). He joined the firm of Kimball, Parr, Waddoups, Brown & Gee as an associate in 1992, after clerking for Judge Wilkinson. Lee accepted a one-year term as a law clerk for the Honorable Clarence Thomas, Associate Justice of the United States Supreme Court (1994–95). He became a shareholder at Kimball, Parr, Waddoups, Brown & Gee in 1995, a position he would hold until 1997 when he left the firm to join the faculty of the J. Reuben Clark Law School at Brigham Young University. At the law school, Lee taught courses in Civil Procedure and Intellectual Property Law, and a seminar on the United States Supreme Court. He also served as Associate Dean and was named the Rex and Maureen Rawlinson Professor of Law. He remains a Distinguished Lecturer in Law at BYU. While at the law school, Lee worked in an "of counsel" capacity at Howard, Phillips, & Andersen, representing the firm in numerous cases involving intellectual property matters. During the years of 2001 to 2004, Lee served as lead counsel for the State of Utah in a number of cases. In 2004-05, Lee took a leave from the law school to serve as the Deputy Assistant Attorney General, Civil Division, US Department of Justice.^[11] He is on President-Elect Donald Trump's list of potential Supreme Court justices.^[12]

Nomination and confirmation

On Friday, May 28, 2010, Utah Governor Gary Herbert nominated Lee to fill the vacancy in the Utah Supreme Court left by retired Justice Michael J. Wilkins.^[13] Receiving a unanimous vote (5-0) from the Utah Senate Judicial Confirmation Committee, Lee was confirmed by the full Senate on Wednesday, June 23, 2010.^[14] Lee was sworn into office on Monday, July 19, 2010, accepting the oath administered by his mentor, US Supreme Court Justice Clarence Thomas.^[2]

Justice Lee's Jurisprudence

Constitutional Interpretation

State v. Houston, 2015 UT 40, ¶¶150 (Lee, J., concurring) (“We implement the principles of the constitution as originally adopted because that is the very point of having a written constitution. . . . The originalist understands the value—and even the inevitability—of adaptation of the law over time. Thus, the case for originalism is not, as is sometimes assumed, an instance that the founding generation had a monopoly on wisdom. Instead, the originalist simply recognizes and respects the means by which our laws are supposed to adapt under the terms of the constitution.”); id. ¶ 153 (originalism “is the approach to constitutional interpretation that this court has embraced—with a few notable exceptions—for most of its history.”); id. ¶ 154 (“A constitution rooted in ‘evolving standards’ arising out of a judge’s ‘humanitarian instincts’ is no constitution at all.”).

State v. Walker, 2011 UT 53, ¶ 29-32 (Lee, J., concurring) (“Originalism is more than just the dominant form of constitutional interpretation during most of our nation’s history. It is a theory that is essential to any system of government that finds its legitimacy in the will of the people as expressed in positive laws enacted by their representatives. Such systems rightly presume that the rules of law adopted by our representatives remain in force and are worthy of respect until they are repealed or amended by the due processes designated for that purpose. For statutes, the original meaning of the law as enacted by the legislature may be changed only by new legislation produced through bicameralism and presentment. The constitution is even more insulated from change. Its provisions may be altered only by amendments adopted through the super-majoritarian procedures set forth in its provisions. The barriers to amendment of our laws are by design. Members of the public are entitled to rely on and organize their affairs around the law as positively enacted—unless and until the law is amended or repealed.”); Id. ¶ 34 ("[O]riginalism is not just a wise starting point; it is the beginning and end of the judge's function, and an essential limitation on judicial power.").

State v. Maxwell, 2011 UT 81, ¶ 32 & n.5 (“Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give any commentary then made, and a fortiori, to any commentary since made, under a very different posture of feeling and opinion, an authority which should operate as an absolute limit upon the text, or should supersede its natural and just interpretation.”).

In re Adoption of J.S., 2014 UT 51, ¶ 30 ("Our role in interpreting the constitution is one of interpretation, not common-law-making.").

Statutory Interpretation

State v. Bagnes, 2014 UT 4, ¶ 16 (“Our role in interpreting the statute is to give its words the meaning they would have had in the minds of the general public at the time of enactment.”).

Hughes v. Labor Comm’n, 2014 UT 3, ¶ 28–29 (“[W]e are in no position to pick sides in the policy debate engaged in by the parties in their briefs before us . . . the interpretive function for us is not to divine and implement the statutory purpose, broadly defined. It is to construe its language. Where, as here, that language dictates an answer to the question presented, we are not at liberty to adopt a different one because we think it might better advance the legislature’s purpose as we understand it.”).

Strohm v. ClearOne Commc’ns, Inc., 2013 UT 21, ¶ 32 (“The text of the statutory indemnification scheme is the governing public policy in this area. By applying the statute as written, we remain faithful to the public policy embraced by the legislature.” (citation omitted))

Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 & n.6 (“The City’s speculation as to a contrary legislative purpose cannot quash our construction of the plain language. . . . The conflict in the intent attributed by the parties to the legislature illustrates the peril of interpreting statutes in accordance with presumed legislative purpose, particularly given that most statutes represent a compromise of purposes advanced by competing interest groups, not an unmitigated attempt to stamp out a particular evil.”)

Schroeder Invs., L.C. v. Edwards, 2013 UT 25, ¶ 25 (“Public policy concerns, however grave, do not deputize this court to ignore the terms a statute and act legislatively. We are bound by the policy judgments of the legislature—even if we fundamentally disagree with them.”).

The Role of a Judge

Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶¶ 201-02 (Lee, J., dissenting) (“[A]chieving outcomes that satisfy our policy preferences is not our function. We are tasked instead with deciding the cases that come before us in accordance with the rule of law—whether or not it yields an outcome we favor on policy grounds. That’s what distinguishes this branch of government from those that perform more purely political policymaking roles. We undermine our authority when we blur this distinction.”)

State v. Walker, 2011 UT 53, ¶ 31 (Lee, J., concurring) (“The judge, in other words, is not a primary lawgiver but instead an agent for the legislature or framer that played that role. This allocation of power again is deliberate. The more politically accountable bodies of government make new laws; judges, who are more insulated from political processes, simply interpret them and attempt to apply them in an objective, evenhanded manner.”); id. ¶ 38 ("We fall short of that solemn [judicial] duty when we 'interpret' the law without attempting to determine its original meaning. When we instead simply announce the law as we would have it be, we exceed the proper bounds of our judicial power.").

State v. Houston, 2015 UT 40, ¶ 156 (Lee, J., concurring) (“As judges we take an oath to uphold and defend the constitution. That oath must mean something. It should be understood to protect the fundamental rights of our citizens. It means nothing of the sort if its content is dependent on the ‘humanitarian instincts’ or ‘beliefs’ of the judge or panel of judges a litigant happens to draw in a judicial proceeding. No two judges are identical. Each of us possesses a different set of ‘instincts’ and ‘beliefs.’ Surely the constitution was not meant to vary from case to case in accordance with the judge or panel assigned to a particular case. To make good on the promise of a written document securing fundamental, permanent rights, the constitution must mean what it originally meant.”).

Hill v. Nakai (In re Estate of Hannifin), 2013 UT 46, ¶ 31 n.14 (“It is certainly true . . . that ‘the legislature can amend the statute to direct a different outcome in future cases’ if it ‘disapproves’ of the way we tinker with its statutory enactments. But the availability of a legislative self-help remedy is of little consequence. We are tasked with interpreting the legislature’s handiwork by our best lights. It is not enough to offer a merely plausible construction in the anticipation that the legislature will override us if we mistake its intent. It may be that ‘[s]tate courts and state legislatures function in dialogue with one another.’ But in this dialogue and in this context, when the legislature speaks, we must listen. We cannot properly speak over the legislature’s voice on this matter. And though we may be free to ‘call the attention of the legislature to statutes in need of clarification or modernization,’ we should not force such changes on the legislature by judicial mandate.”).

Winward v. State, 2012 UT 85, ¶ 45-46 (Lee, J., concurring in the judgment) (explaining that the court’s purported restraint was not really restraint at all, as it was impossible to resolve the case without “effectively deciding the key constitutional question”); id. ¶¶ 52-54 (“In applying an exception invoked arguendo, the court is certainly not ‘avoiding’ this question, in any meaningful sense. It is instead resolving a key question sub silentio and without any analysis.”).

Gregory v. Shurtleff, 2013 UT 18, ¶¶ 63-65 (Lee, J., concurring in part and dissenting in part, joined by Durrant, C.J.) (rejecting the notion of “public interest” standing); id. ¶¶ 66-71 (explaining that standing is a core limit on the judicial power enshrined in the constitution); id. ¶¶ 72-92 (setting forth an originalist understanding of the standing doctrine); id. ¶¶ 93-105 (explaining how the originalist understanding is consistent with most of our caselaw); id. ¶¶ 106-115 (explaining the problematic nature of the majority’s conceptualization of “public interest” standing).

State Constitutional Law

State v. Clopten, 2015 UT 82, ¶ 78 (Lee, J., concurring) (“Historically, the guarantee of due process has been understood as a bar on state action that deprives a protected party of 'life, liberty, or property, without due process of law.' This is not a sweeping charter for judges to assure fairness by excluding evidence that may be of questionable reliability in light of emerging principles of social science. It is as a limitation on government action depriving a person of the traditional components of “due process,” such as the right to reasonable notice and a meaningful opportunity to be heard. I see no basis for extending this longstanding view of due process to establish an omnibus guarantee of evidentiary reliability. Nor do I see a limiting principle on such a slippery slope.”).

In Re Discipline of Brian Steffensen, 2016 UT 18 ¶ 7 (noting that the “Due Process Clause is not a free-wheeling constitution license for courts to assure fairness on a case-by-case basis,” but a standard “measured by reference to ‘traditional notions of fair play and substantial justice”); (explaining that while “[w]e retain discretionary license to assure fair procedure in the cases that proceed through our justice system . . . our usual course for doing so is by promulgating rules of procedure”).

State v. Walker, 2011 UT 53, ¶ 28 (Lee, J., concurring) (writing separately to suggest that the Utah constitution does not contemplate an exclusionary rule); id. ¶¶ 40-46 (explaining the problematic manner in which we concluded that article I, section 14 incorporates an exclusionary rule).

State v. Canton 2013 UT 44, ¶¶ 26-42 (presenting a variety of historical materials that suggest our current approach to the Uniform Operation of Laws Clause—Utah's equivalent of the Equal Protection Clause—is out of keeping with an originalist understanding of the provision, and laying out the original meaning of that clause).

Administrative Law

Ellis-Hall Consultants v. Public Serv. Comm. of Utah, 2016 UT 34, ¶¶ (29-33) (rejecting Auer-Seminole Rock deference at the state level as a violation of the separation of powers since it encroaches upon the judiciary's duty to interpret the law).

Number of Opinions

Justice Lee is a prolific judicial writer. One political scientist's study of the Utah Supreme Court found that in the approximately first three years on the court, Justice Lee authored more majority and other (dissenting and concurring) opinions than any other justice over the 16-year period studied, writing in 43% of the opinions published while he was a justice.^[15] Specifically, Justice Lee authored 27% of the majority opinions of the court, and dissented or concurred in another 16% of all opinions.

Similarities to Justice Scalia

A recent study attempted to measure the "Scalia-ness" of various potential nominees to fill the late Justice's vacant seat on the U.S Supreme Court.^[16] The study, whose lead author is a law professor at Mercer University,^[17] found that Justice Lee was the most likely to endorse or engage in originalism in judicial opinions, was second most likely to cite Justice Scalia's non-judicial writings in opinions, and the third most likely to write separately when not writing the majority opinion. The study created a Scalia Index Score combining the various measures of "Scalia-ness," and Justice Lee scored highest.^[18]

Specific Opinions

Lee has authored a number of majority opinions, including:

• In the Matter of the Adoption of BABY B., 2012 UT 35 (overturning an adoption and returning paternity rights to Rob Manzanaras four years after the birth and adoption in Utah)
• Bahr v. Imus, 2011 UT 19 (clarifying and refining the three boundary dispute doctrines in Utah case law: boundary by acquiescence, boundary by estoppel, and boundary by agreement)
• Carter v. Lehi City, 2012 UT 2 (establishing new constitutional test for determining whether the subject matter of a ballot initiative is encompassed by the people’s initiative power)
• Young Living Essential Oils, LC v. Marin, 2011 UT 64 (clarifying the scope of the implied covenant of good faith and fair dealing in contract law)
• State v. Prion, 2012 UT 15 (declaring Utah’s Guilty and Mentally Ill (GAMI) statute unconstitutional; holding that statute violated the Double Jeopardy Clause by allowing judge to increase a defendant’s sentence months after initial sentence based on conduct during confinement at state hospital)
• FLDSA v. Horne, 2012 UT 66 (on certification from the Tenth Circuit Court of Appeals, holding that Utah Supreme Court's earlier decision dismissing on laches grounds a constitutional challenge to the reformation of a charitable religious trust was preclusive under the doctrine of res judicata, barring subsequent legal challenges to that reformation; clarifying the law of res judicata in the context of a decision on an extraordinary writ and evaluating the applicability of time-bar principles to constitutional claims)
• State v. Verde, 2012 UT 60 (clarifying the law of evidence under rule 404(b) regarding the admissibility of prior misconduct offered for purposes other than to demonstrate action in conformity with bad character; establishing the principle of the "doctrine of chances" in Utah law)

Lee is also a prolific author of separate dissents and concurrences, including the following:

• Carranza v. United States, 2011 UT 80 (Lee, J., concurring) (concluding that an unborn fetus is a "minor child" under the wrongful death statute)
• Marion Energy v. KFJ Ranch, 2011 UT 50 (Lee, J., dissenting) (rejecting, in the course of construing an eminent domain statute authorizing condemnation for the construction of roads to facilitate the working of "mineral deposits," a substantive canon of statutory construction requiring "strict" construction against the condemning authority)
• In re Baby E.Z., 2011 UT 38 (Lee, J., concurring in the judgment) (concluding, based among other things on corpus linguistics data from the Corpus of Contemporary American English (COCA), that the federal Parental Kidnapping Protection Act's regulation of "custody" determinations did not apply to adoption proceedings)
• State v. Walker, 2011 UT 53 (Lee, J., concurring) (asserting that article I, section 14 of the Utah Constitution—the state counterpart to the federal Fourth Amendment—does not incorporate an exclusionary rule as a remedy)
• State v. Parduhn, 2011 UT 55 (Lee, J., dissenting) (concluding that the Utah Indigent Defense Act overruled the court's earlier decision in State v. Burns, and thus required indigent defendants requesting a government-funded defense to accept legal aid defense resources as the exclusive source of such resources in a package encompassing legal aid counsel, and rejecting the right of the defense to order a la carte resources such as a private investigator or expert witness)

Works & Presentations

Justice Lee has also made numerous presentations as a judge, primarily to Federalist Society student chapters and primarily on how to make textualism more rigorous and transparent. For example, he spoke on the "Science of Statutory Interpretation" to the University of Chicago Federalist Society.^[28] He was the invited keynote speaker at the Harvard Federalist Society's annual dinner in 2016. At UC-Berkeley, he was on a Federalist Society panel discussing judicial philosophy.^[29][30] He has also spoken at Stanford and Michigan. And he will be on a panel addressing "Corpus Linguistics and Legal Interpretation" at the Federalist Society's 19th Annual Faculty Conference in January, 2017.^[31]

Notable Work as An Attorney

Guantanamo Bay Detainee cases (D. D.C.):

A series of suits filed against then President George W. Bush and the United States military regarding detainees held at the United States penitentiary facility at Guantanamo Bay, Cuba. The plaintiffs argued that in addition to being denied due process, prisoners ought to be subject to the laws under the Constitution, not military tribunals. Lee presented oral arguments on behalf of the United States. The majority of the rulings considered by the United States Supreme Court resulted in rulings that detainees should be able to file their complaints in civil courts.

Skull Valley Band of Goshute Indians v. Leavitt, 376 F. 3d 1223 (10th Cir. 2004) ^[32]

Case involving the transportation and storage of spent nuclear fuel on land leased to the State of Utah by the Skull Valley Band of Goshute Indians. As part of the appeal, Lee served as lead counsel for the State of Utah. The resulting opinion of the appellate court was to affirm the district court's ruling that it was the authority of the federal, not state, government that decided issues regarding the transportation and storage of spent nuclear fuel.

Bullcreek v. Nuclear Regulatory Commission, 359 F. 3d 536 (D.C. Cir. 2004) ^[33]

Case of appeal involving the jurisdiction of the Nuclear Regulatory Commission (NRC) in licensing the private storage of spent nuclear fuel. Lee argued on behalf of the petitioners who claimed that the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101, repealed the authority of the NRC to grant licenses to store private nuclear spent fuel in facilities away from reactor storage facilities. The circuit court upheld that the NRC's interpretation of the act was more consistent, and therefore denied the motions of the petitioners for lack of standing.

Utah v. Evans, 536 U.S. 452 (2002) ^[34]

Case regarding the "hot-deck imputation" technique utilized by the US Census Bureau during the 2000 Census. The technique came under fire when it was shown to have earned North Carolina one additional representative, yet cost Utah one representative. Representing the State of Utah, Lee argued the case before the Supreme Court. The opinion of the court upheld the previous ruling that the use of "hot-deck imputation" did not violate statute nor constitution.

As a private attorney, Lee was a recognized expert in trademark law and litigated numerous trademark infringement cases, including the following:

Personal information

Thomas Rex Lee and wife Kimberley have six children. His brother, Michael S. Lee, is a U.S. Senator representing the state of Utah.^[40]

References

External links

• Deseret News, May 29, 2010
• BYU Law School profile
• Lee's vita
• BYU Law School Faculty Profile
• Utah State Courts: Judges' Bios
• Utah State Supreme Court

Current statewide political officials of Utah
U.S. Senators	Orrin Hatch Mike Lee
State government	Gary Herbert, Governor Spencer Cox, Lieutenant Governor Sean Reyes, Attorney General Richard Ellis, Treasurer John Dougall, Auditor
Senate	Michael Waddoups, President Scott Jenkins, Majority Leader Ross Romero, Minority Leader
House	Becky Lockhart, Speaker Brad Dee, Majority Leader David Litvack, Minority Leader
Supreme Court (appointed)	Matthew Durrant, Chief Justice Thomas Lee, Associate Chief Justice Christine Durham, Justice Constandinos Himonas, Justice John Pearce, Justice