A common mistake is challenging the constitutionality of a statute in an action between private parties and not notify the government entity which may have an interest in defending the statute. Statutes and rules require that you do so, and missing this may have consequences.
For example, suppose you’re in a medical malpractice case and the hospital defendant raises the defense of the damages cap. You respond by claiming that cap violates the Open Courts provision of the Utah Constitution. The Utah Attorney General needs to be told, and given the chance to intervene and defend the cap– otherwise any judgment on that issue may be voided. See, e.g., Oklahoma v. Pope, 516 F.3d 1214 (10th Cir. 2008).
New Utah Rule of Appellate Procedure 25A (effective November 1st) has been approved by the Supreme Court and sets forth this requirement and the procedures for appeals.
This tracks already-existing statutory and civil rules in state and federal court:
Utah Rule Civ.P 24(d)
Utah Code Ann. § 78B-6-403
Federal.Rule Civ.P 5.1
28 U.S.C. Sec. 2403(a)
