State v. Drej

1 State v. Herrera, 895 P.2d 359 (Utah 1995).
2010 UT 35
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20080003
Plaintiff and Appellee,
v.
F I L E D
Eryk Drej,
Defendant and Appellant. May 14, 2010
---
Fourth District, Provo
The Honorable Lynn W. Davis
No. 051402396
Attorneys: Mark L. Shurtleff, Att’y Gen., Christine F. Soltis,
Asst. Att’y Gen., for plaintiff
Thomas H. Means, Margaret P. Lindsay, Douglas J.
Thompson, Provo, for defendant
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 In response to a divided opinion by this court in which
we questioned but ultimately upheld the constitutionality of the
state’s limited insanity defense,1 the Utah Legislature enacted a
new method of mitigating criminal culpability based on a
defendant’s mental illness called “special mitigation.” In a
narrow set of circumstances, special mitigation allows mentally-
ill defendants who acted under the influence of a delusion, to
reduce their criminal convictions by one degree. Unlike a
traditional insanity defense, special mitigation cannot be used
to eliminate criminal liability entirely. In the decade since
the Legislature’s adoption of special mitigation, the defendant
in this case, Eryk Drej, appears to be the first to address
special mitigation; he has challenged the constitutionality of
the special mitigation statute. He argues the statute is
unconstitutional because it places the burden of proving special
mitigation on the defendant, in violation of the due process

No. 20080003 2
clauses of the state and federal constitutions. He also argues
the statute was enacted contrary to the state’s separation of
powers provision and that it violated equal protection under both
the state and federal constitutions.
¶2 Mr. Drej urges this court to hold the statute
unconstitutional but at the same time to preserve special
mitigation as an affirmative defense available to mentally-ill
defendants. He argues that we ought to preserve special
mitigation by severing the unconstitutional language concerning
the burden of proof from the statute. What would be left, under
Mr. Drej’s theory of severability, is a statute that permits a
defendant to raise special mitigation but requires the
prosecution to disprove special mitigation beyond a reasonable
doubt.
BACKGROUND
¶3 Since this case reaches us on an interlocutory appeal,
the facts of Mr. Drej’s alleged crime have yet to be adjudicated.
Mr. Drej is charged with the murder of his brother, Lucasz Drej.
Mr. Drej allegedly shot his brother twenty-two times while Lucasz
sat in his truck talking on a cell phone. After emptying his
weapon, Mr. Drej allegedly pulled Lucasz from his vehicle and
attempted to smash his skull with the butt of a rifle. After two
strikes with the weapon, Mr. Drej threw his brother’s body down
an outside stairwell of the family home. In the days that
followed the killing, Utah County prosecutors filed a single
murder charge against Mr. Drej. In addition to the single
charge, prosecutors filed a notice that they intended to seek an
enhanced sentence based on Mr. Drej’s use of a dangerous weapon
during the commission of a felony.
¶4 Within a month of the filing of the murder charge, Mr.
Drej’s defense attorney called into question Mr. Drej’s mental
health and competency to stand trial. Mr. Drej’s confessed
reason for the killing, coupled with his bizarre conduct while in
jail, gave rise to the defense’s inquiry into Mr. Drej’s
competency. Mr. Drej reportedly told police that Lucasz was
“pimping” girls and then having them killed to sell their “organs
on the black market.” Lucasz, according to Mr. Drej’s
confession, was the primary organizer of the prostitution ring
and associated killings and organ sales. The following facts
formed the basis for Mr. Drej’s beliefs: Lucasz had two cell
phones, which he didn’t always answer; Mr. Drej observed women
enter a nearby apartment but didn’t see them leave; and Mr. Drej
had a “vision” that Lucasz intended to harm him. Mr. Drej had
also placed a number of drawings throughout the family home that
he believed would protect family members. One picture was

3 No. 20080003
designed to be a warning to Lucasz. Mr. Drej also engaged in
extremely bizarre conduct while held in the Utah County Jail.
¶5 The Fourth District Court found Mr. Drej incompetent to
stand trial. After five months at the Utah State Hospital, the
district court determined Mr. Drej had regained his competency
and was eligible to stand trial. As the parties prepared for
trial, Mr. Drej announced he intended to assert three alternative
defenses: (1) not guilty by reason of insanity; (2) diminished
mental capacity; and (3) special mitigation.
¶6 As the district court considered jury instructions for
the upcoming trial, Mr. Drej called into question the
constitutionality of the special mitigation statute. He argued
that the federal and state constitutions and the Utah Code
required a jury instruction that placed the burden of disproving
special mitigation beyond a reasonable doubt on the prosecution.
Mr. Drej based his argument primarily on a legal theory that
equated special mitigation to an affirmative defense. Under this
theory, Mr. Drej argued that the federal and state constitutions
and the Utah Code mandated that the prosecution disprove the
defense. The state responded by arguing that the legislature
intentionally placed the burden of proving special mitigation on
the defendant and that it was constitutional to do so. The
district court held that special mitigation is not equivalent to
an affirmative defense, drawing a distinction between defenses
that exculpate and those that merely reduce the severity of
punishment on the basis of reduced moral culpability.
¶7 Mr. Drej filed a petition for interlocutory appeal with
this court, which we granted. He challenges the
constitutionality of the state’s special mitigation statute under
the Utah and United States Constitutions. As he did in the
district court, Mr. Drej urges us to strike the purported
unconstitutional portions of the statute, leaving special
mitigation in place but with the burden of disproving the defense
on the prosecution.
¶8 We have jurisdiction over this matter pursuant to Utah
Code section 78A-3-102(3)(h) (2008).
STANDARD OF REVIEW
¶9 “‘The issue of whether a statute is constitutional is a
question of law, which we review for correctness, giving no
deference to the trial court.’” State v. Ross, 2007 UT 89, ¶ 17,
174 P.3d 628 (quoting Wood v. Univ. of Utah Med. Ctr., 2000 UT
134, ¶ 7, 67 P.3d 436). “Furthermore, we presume the legislation

No. 20080003 4
being challenged is constitutional, and we resolve any reasonable
doubts in favor of constitutionality.” Wood, 2002 UT 134, ¶ 7.
ANALYSIS
¶10 Mr. Drej attacks the constitutionality of Utah’s
special mitigation statute on three grounds. First, Mr. Drej
argues the statute violates the due process clauses of the
Fourteenth Amendment to the United States Constitution and art.
I, section 7 of the Utah Constitution. Mr. Drej’s due process
claim is based on a premise that special mitigation is the legal
equivalent of an affirmative defense, which must require the
state to disprove the claim for special mitigation beyond a
reasonable doubt. Second, Mr. Drej claims the statute violates
the separation of powers clause of the Utah Constitution because
it constitutes a rule of procedure and was not adopted by a
super-majority vote of the Utah Legislature. Finally, Mr. Drej
alleges the statute violates the equal protection provisions of
the federal and state constitutions. This argument is based on a
theory that the special mitigation provision imposes upon
mentally-ill defendants a more burdensome procedure to make out
special mitigation than that which is imposed upon non-mentally-
ill defendants who assert other affirmative defenses.
¶11 Mr. Drej’s theories all stem from the allocation of the
burden of proof in the special mitigation statute. The statute
requires:
If the trier of fact finds the elements of an
offense as listed in Subsection (5)(b) are
proven beyond a reasonable doubt, and also
that the existence of special mitigation
under this section is established by a
preponderance of the evidence, it shall
return a verdict on the reduced charge as
provided in Subsection 5(b).
Utah Code Ann. § 76-5-205.5(5)(a) (Supp. 2009) (emphasis added).
Mr. Drej claims that assigning the burden of proof to the
defendant is unconstitutional. We treat his arguments in the
order previously noted.
I. DUE PROCESS
¶12 In urging this court to invalidate the special
mitigation statute, Mr. Drej argues the statute is
unconstitutional under the due process provisions of the Utah and
U.S. Constitutions. In so doing, Mr. Drej presents two distinct
arguments: first, that special mitigation is an affirmative

2 In making his due process argument, Mr. Drej cites to the
U.S. Supreme Court’s decision in Mullaney v. Wilbur, 421 U.S. 684
(1975), for the proposition that the state must disprove all
affirmative defenses. Mullaney was initially interpreted to
stand for this broad proposition. See, e.g., Smart v. Leeke, 873
F.2d 1558, 1562 (4th Cir. 1989) (discussing attempts to interpret
Mullaney). But two years after the publication of Mullaney, the
Supreme Court expressly rejected this interpretation and declined
to adopt the theory that “a [s]tate must disprove beyond a
reasonable doubt every fact constituting any and all affirmative
defenses.” Patterson v. New York, 432 U.S. 197, 210, 215 (1977)
(emphasis added).
5 No. 20080003
defense, which must be disproved by the state; and alternatively,
that special mitigation violates due process because the statute
is a means of finding a defendant guilty of manslaughter, which
the state, not the defendant, must have the burden of proving.
We are persuaded by neither argument and conclude that special
mitigation does not violate federal or state law.
A. Mr. Drej’s Affirmative Defense Theory
¶13 In arguing against the constitutionality of special
mitigation, Mr. Drej claims that special mitigation is an
affirmative defense and, as such, requires the state to shoulder
the associated burden of proof. Mr. Drej’s argument is
predicated, in part, on a theory that the due process clauses of
the Utah and U.S. Constitutions require the state to disprove all
affirmative defenses. Because there appears to be some confusion
on the interplay between federal and state law on this issue, we
briefly discuss the burdens associated with the affirmative
defenses under federal and state law before turning our attention
to determine if special mitigation is an affirmative defense that
must be disproved by the state.
¶14 Under federal law, Mr. Drej’s argument that the state
must disprove all affirmative defenses is clearly wrong. The
U.S. Supreme Court has interpreted the federal due process clause
to permit the state to shift the burden of proof to a defendant
on affirmative defenses that do not act to negate an element of
the charged offense.2 Patterson v. New York, 432 U.S. 197, 206-
07 (1977) (stating that an affirmative defense that “does not
serve to [negate] any facts of the crime which the State is to
prove in order to convict” is a “separate issue” that does not
come within the due process protections of the federal
constitution); see also United States v. Matthews, 545 F.3d 223,
227 (2d Cir. 2008) (“Where no fundamental right is at issue,
there is no doubt that the legislature may assign to defendants

No. 20080003 6
burdens of proof with regard to affirmative defenses.”); United
States v. Contreras, 536 F.3d 1167, 1173 (10th Cir. 2008)
(stating it is “constitutionally permissible for a legislature to
assign the burden of proof for an affirmative defense to the
defendant”). The Patterson rule is derived largely from the
basic constitutional principle that the state must prove “every
fact necessary to constitute the crime with which [the defendant]
is charged.” In re Winship, 397 U.S. 358, 364 (1970).
¶15 Under the federal constitution, the legislature may
assign the burden of proof for an affirmative defense to a
defendant so long as the defense does not negate an element of
the offense. Put another way, the state must shoulder the burden
of proof on all affirmative defenses that act to negate an
element of the charged offense. While the federal rule is
unambiguous, it is equally evident that Utah has developed a
common law and statutory rule independent of, and more protective
than, that articulated in federal jurisprudence arising from the
due process clauses of the U.S. Constitution. The Utah rule
requires that the prosecution “disprove the existence of
affirmative defenses beyond a reasonable doubt once the defendant
has produced some evidence of the defense.” State v. Wood, 648
P.2d 71, 82 n.7 (Utah 1982); see also State v. Low, 2008 UT 58, ¶
45, 192 P.3d 867 (stating the prosecution, not the defendant,
carries the burden of proving “the absence of an affirmative
defense once the defense is put into issue” (internal quotation
marks omitted)); State v. Swenson, 838 P.2d 1136, 1138 (Utah
1992) (noting “a long line of Utah cases [that] imposes on the
prosecution the burden to disprove the existence of affirmative
defenses beyond a reasonable doubt, once the defendant has
produced some evidence of the defense”); State v. Vacos, 120 P.2d
497, 502 (Utah 1911) (“[T]he duty or burden is cast upon the
defendant to produce or bring forward the evidence in support of
justification or excuse, but he is not required to establish the
justification or excuse by a preponderance of the evidence before
he is entitled to avail himself of that defense. All that he is
required to do is to produce sufficient evidence of justification
or excuse. . . .”). Additionally, the legislature has codified
this rule. Utah Code Ann. § 76-1-502 (2008) (requiring the state
to negate a defense “[b]y proof” when “[t]he defense is an
affirmative defense, and the defendant has presented evidence of
such affirmative defense”); see also id. § 76-1-504 (mandating
that the defendant present evidence of an affirmative defense but
not requiring the defendant to prove the defense).
¶16 Mr. Drej suggests that the Utah rule is a fundamental
protection found within art. I, section 7 of the Utah
Constitution or, alternatively, found within the protections of
the federal constitution. The Utah rule is plainly not derived

7 No. 20080003
from federal law as it exceeds the scope of Supreme Court
precedent. Nor have we ever determined that our rule is mandated
by the state constitution. Although Mr. Drej requests that we do
so now, we are not required to reach that question to resolve
this case, and we decline to do so. It is sufficient for this
appeal to acknowledge that the rule in Utah, originally founded
in the common law and now codified by the legislature, demands
that the state disprove all affirmative defenses that have been
properly raised by a criminal defendant.
¶17 Having clarified the law surrounding the burden of
proof on affirmative defenses under state and federal law, we now
turn to analyze the propriety of the legislature’s decision to
place the burden of proving special mitigation on the criminal
defendant. To do so we must determine if special mitigation is
in fact an affirmative defense under Utah law that must be
disproved by the prosecution once appropriately raised by a
defendant.
¶18 The legislature unquestionably has the exclusive
authority to define what acts constitute crimes and what the
elements of those crimes are. See Utah Code Ann. § 76-1-105
(2008) (abolishing all common law crimes and establishing Utah’s
criminal law as statutorily based); State v. Miller, 2008 UT 61,
¶ 16, 193 P.3d 92 (“Utah’s criminal law is statutory.”); see also
State v. Gallion, 572 P.2d 683, 688 (Utah 1977) (“[T]he courts
may not denounce and punish as crimes acts and omissions not made
punishable by statute, for it is a legislative power to declare
acts as crimes and to prescribe proper penalties.” (emphasis
added)); State v. Johnson, 137 P. 632, 634 (Utah 1913) (“[W]e
cannot, in the absence of legislative enactment making such acts
criminal and punishable, denounce and punish them as crimes.”);
21 Am. Jur. 2d Criminal Law § 3 (2008) (stating where states have
abolished common law crimes, “no act that is merely immoral or
reprehensible can be treated as a crime unless made so by
statute”). Moreover, it is for the legislature to define
affirmative defenses to crimes under the Utah Code. See Miller,
2008 UT 61, ¶ 16 (demanding that affirmative defenses arise from
the Utah Code and relate to the crime the defendant is charged
under); State v. Gardiner, 814 P.2d 568, 574 (Utah 1991) (finding
the legislature’s decision against codifying the “common law
right to resist an illegal search or arrest” “impliedly
preclude[d]” the court from recognizing such a defense). We have
noted that the courts of this state “are bound by the
legislature’s decision to categorize” and define affirmative
defenses. Low, 2008 UT 58, ¶ 24. Indeed, in Low we found that
we were bound to recognize extreme emotional distress
manslaughter and imperfect self-defense manslaughter as

No. 20080003 8
affirmative defenses after the legislature converted them from
lesser included offenses. Id.
¶19 The legislature has wide latitude to recognize and
define the affirmative defenses applicable under the Utah Code.
As a general matter, we rely on that legislative categorization.
The plain language of section 76-5-205.5 leaves no doubt that the
legislature did not intend to enact special mitigation as an
affirmative defense. The legislature labeled section 76-5-205.5
as special mitigation, used that term throughout the statute, and
never used the term “affirmative defense,” or even “defense.”
Additionally, special mitigation is found in its own statutory
section rather than included with the affirmative defenses to
murder found in section 76-5-203.
¶20 Mr. Drej, however, urges us to apply a functional
analysis by arguing that while the legislature did not categorize
special mitigation as an affirmative defense, it is an
operational equivalent to an affirmative defense. The
legislature cannot avoid constitutional requirements merely by
adopting language that belies a statute’s actual function. See
State v. Palmer, 2009 UT 55, ¶ 12, 220 P.3d 1198 (stating the
labeling of elements as “sentencing factors” does not relieve the
state of its burden to prove those elements beyond a reasonable
doubt) (internal quotation marks omitted); see also Ring v.
Arizona, 536 U.S. 584, 602 (2002) (“The dispostive question . . .
‘is one not of form, but of effect.’” (quoting Apprendi v. New
Jersey, 530 U.S. 466, 494 (2000)). While we might be required to
engage in a functional analysis when faced with a claim that
proof of an element of the primary offense was at issue, we do
not have such a claim in this case. The elements of special
mitigation do not contravene or rebut any of the statutory
elements of murder. As was the case in Low, therefore, we rely
on the legislature’s categorization and the plain language of the
statute itself to conclude that special mitigation is not an
affirmative defense. The legislature acted within its authority
in placing the burden of proof on the defendant to prove special
mitigation.
¶21 In enacting section 76-5-205.5, the legislature opted
to permit a narrow class of mentally-ill defendants to argue for
special mitigation in aggravated murder and murder cases. In
exchange for giving defendants the ability to argue for special
mitigation, the legislature elected to require the defendant to
prove special mitigation by a preponderance of the evidence. As
special mitigation is not a defense to the underlying primary
charge of murder, it cannot run afoul of the federal constitution
or state law.

9 No. 20080003
B. Mr. Drej’s Lesser Included Theory
¶22 In the alternative to his claim that special mitigation
is an affirmative defense, Mr. Drej argues that special
mitigation is a lesser included offense of murder; namely a means
of establishing manslaughter. It is true that, if special
mitigation constituted the substantive crime of manslaughter, the
state could be required to prove each element of that crime by
proof beyond a reasonable doubt. In re Winship, 397 U.S. at 364;
Utah Code Ann. § 76-1-501. In making his argument, Mr. Drej
directs us to our split decision in State v. Herrera, 895 P.2d
359 (Utah 1995), for the theory that due process does not allow
the state to place the burden of proof upon the defendant but
that special mitigation does exactly this. This is a reframing
of Mr. Drej’s affirmative defense argument discussed above.
¶23 Utah law is unambiguous when it comes to establishing
criminal offenses. “Legislatures are free to ‘declare what
constitutes an offense against society and to define the elements
that constitute such an offense.’” State v. Martinez, 2002 UT
80, ¶ 16, 52 P.3d 1276 (quoting United States v. Ransom, 942 F.2d
775, 776 (10th Cir. 1991)); see also State v. Jeffries, 2009 UT
57, ¶ 13 n.3, 217 P.3d 265 (“The job of the legislature is to
define crimes, prescribe penalties, and establish guidelines for
prosecutors, judges, and juries for enforcing the law.”); Palmer,
2009 UT 55, ¶ 13 (“[I]t is the role of the legislature to ‘choose
the elements that define their crimes.’” (quoting Jones v. United
States, 526 U.S. 227, 241 (1999))); Low, 2008 UT 58, ¶ 57
(holding that prosecutors are barred from charging imperfect
self-defense manslaughter or extreme emotional distress
manslaughter after the legislature converted the substantive
crimes into affirmative defenses). The legislature has not
defined the conduct included in the special mitigation statute as
an offense. There is no such thing as “special mitigation
manslaughter” in the Utah Code.
¶24 As special mitigation is not a substantive offense, the
requirement that the state must prove all elements of an offense
is not implicated. In sum, special mitigation does not offend
due process under either the Utah Constitution or its federal
counterpart because special mitigation is neither an affirmative
defense nor a substantive offense that the defendant may be
charged with. The district court correctly rejected Mr. Drej’s
due process argument.
II. SEPARATION OF POWERS
¶25 Article V, section 1 of the Utah Constitution describes
the three branches of Utah government and states that “no person

3 The Utah House of Representatives fell three votes short
of approving the statute with a two-thirds majority vote. Utah
House Journal, 53rd Utah Leg., Gen. Sess., at 306-07 (February 4,
1999) (voting 47 in favor, 21 opposed, and 7 absent while needing
50 affirmative votes to reach two-thirds). There is no similar
problem with the vote in the Senate. Utah Senate Journal, 53rd
Utah Leg., Gen. Sess., 169 (January 26, 1999) (documenting that
26 of the 29 senators voted to approve special mitigation).
4 In Brickyard Homeowners’ Ass’n Management Committee v.
Gibbons Realty Company, we described this court’s authority over
rules of procedure as “exclusive.” 668 P.2d 535, 539 (Utah
1983). At the time, this court had exclusive oversight of the
rules of procedure governing the courts of Utah. An amendment in
1984 to art. VIII, section 4 of the Utah Constitution eliminated
the exclusivity of the court’s control over rules of procedure
and evidence. See Ryan v. Gold Cross Servs., 903 P.2d 423, 425
(Utah 1995).
No. 20080003 10
charged with the exercise of powers properly belonging to one of
these departments, shall exercise any functions appertaining to
either of the others, except in the cases herein expressly
directed or permitted.” The latter phrase of this clause
establishes that there may be exceptions to the separation-of-
powers doctrine, but any exception must be found within the Utah
Constitution. Utah Const. art. V, § 1. Art. VIII, section 4
(containing this court’s rule making authority) includes one such
exception. This provision vests the Utah Supreme Court with the
authority to “adopt rules of procedure and evidence to be used in
the courts of the state.” Utah Const. art. VIII, § 4. The
legislature is permitted to “amend the Rules of Procedure and
Evidence adopted by the Supreme Court upon a vote of two-thirds
of all members of both houses.” Id. (amendment added in 1984).
Mr. Drej argues that the special mitigation statute is a rule of
procedure and that it was not enacted by two-thirds of the House
of Representatives.3
¶26 The resolution of the separation-of-powers argument
depends on whether special mitigation is a rule of procedure or
creates a substantive right. Generally, the legislature has the
authority to enact substantive laws governing conduct within the
state. See Ryan v. Gold Cross Servs., Inc., 903 P.2d 423, 425
(Utah 1995). The Supreme Court, in contrast, has the
“prerogative . . . to adopt rules for practice and procedure in
all courts.” Brickyard Homeowners’ Ass’n Mgmt. Comm. v. Gibbons
Realty Co., 668 P.2d 535, 539 (Utah 1983) (internal quotation
marks omitted).4 Substantive law “creates, defines and regulates
the rights and duties of the parties . . . which may give rise to

11 No. 20080003
a cause for action.” Petty v. Clark, 192 P.2d 589, 593 (Utah
1948). Procedural law, which is often labeled adjective law,
“prescribes the practice and procedure or the legal machinery by
which the substantive law is determined or made effective.” Id.
at 593-94 (holding that a statute that alters the unanimity
requirement for jury trials is procedural).
¶27 Statutes are “purely procedural only where they provide
a ‘different mode or form of procedure for enforcing substantive
rights.’” Brown & Root Indus. Serv. v. Indus. Comm’n of Utah,
947 P.2d 671, 675 (Utah 1997) (quoting Washington Nat’l Ins. Co.
v. Sherwood Assocs., 795 P.2d 665, 667 (Utah Ct. App. 1990)).
Procedural laws are “concerned solely with the judicial
processes.” Salt Lake Child & Family Therapy Clinic, Inc. v.
Frederick, 890 P.2d 1017, 1020 n.3 (Utah 1995) (citing to cases
where statutes set out the standard of review in adjudicative
proceedings, collection of child support payments, and
administrative appeals are procedural, but also noting cases
involving statutes that affect the length of time a defendant may
withdraw a guilty plea and setting standards for contribution
between joint tortfeasors are not procedural).
¶28 Special mitigation allows some criminal defendants to
argue that they are less culpable for the taking of a life by
reason of certain kinds of mental illness. If a defendant is
found guilty of aggravated murder, murder, attempted aggravated
murder, or attempted murder the law permits a reduction of the
level of the conviction by one degree. This is a substantive
right. Without section 76-5-205.5, no defendant could argue they
should not be treated as harshly by the law on the basis of a
delusion that does not amount to legal justification, as defined
by the Utah Code. The statute plainly creates and defines the
right to present special mitigation to a jury. The complicating
factor, and the basis for Mr. Drej’s separation-of-powers
argument, is subsection (5)(a), which sets out the burdens of
proof required by special mitigation. Utah Code Ann. § 76-5-
205.5(5)(a) (requiring the defendant to show the “existence of
special mitigation . . . is established by a preponderance of the
evidence”). Mr Drej argues that the burden of proof component of
the special mitigation statute is the procedure the legal
machinery uses to give effect to a defendant’s substantive right
to plead special mitigation.
¶29 The interplay between the allocation of a burden of
proof and a distinction between procedural rules and substantive
rights is a question of first impression for this court. Other
state courts, as well as a number of federal courts, have
analyzed this question and have reached different outcomes. Some
states have held that assignment of a burden of proof is a

No. 20080003 12
substantive right as a matter of law. See, e.g., State v.
Fletcher, 717 P.2d 866, 871 (Ariz. 1986) (holding that the
“burden of proof is considered substantive” under the Arizona
law); In re Guardianship of Jeremiah T., 976 A.2d 955, 960-61
(Me. 2009) (finding a change in burden of proof is substantive
under the common law). In contrast, a number of jurisdictions
have held that the assignment of a burden of proof is always
procedural. See, e.g., Shaps v. Provident Life & Accident Ins.
Co., 826 So. 2d 250, 254 (Fla. 2002) (“[G]enerally in Florida the
burden of proof is a procedural issue.”); Sudwischer v. Estate of
Hoffpauir, 705 So. 2d 724, 729 (La. 1997) (“[A] statute changing
a burden of proof is procedural . . . .”).
¶30 Other courts have declined to create such bright line
rules. These jurisdictions opt to treat burdens of proof as
substantive when the rule “is inseparably connected with the
substantive rights of the parties.” In re Estate of Reardon, 269
N.Y.S. 2d 635, 637 (N.Y. App. Div. 1966). Likewise, the U.S.
Supreme Court drew on this connection linking the substantive
right and the procedural rule when it held that Congress has the
authority to “assign burdens of proof” after creating “a
statutory right.” N. Pipeline Constr. Co. v. Marathon Pipe Line
Co., 458 U.S. 50, 83 (1982), superceded by statute, Bankruptcy
Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353,
98 Stat. 333, as recognized in Things Remembered, Inc. v.
Petrarca, 516 U.S. 124, 132 n.2 (Ginsburg, J., concurring).
While the Supreme Court’s ruling is clear, it is derived from a
reading of the federal separation of powers provision. We are
not bound by this holding as Mr. Drej’s separation-of-powers
argument is based exclusively on the Utah Constitution.
Nonetheless, the Supreme Court’s statement in Marathon Pipe Line
regarding the interaction between the substantive right created
by the legislation and the procedural components is instructive.
For instance, the Court acknowledged that some statutes “do, in a
sense, affect the exercise of judicial power.” Id. Generally,
the influence on the judicial process will lead to the conclusion
that a statute is procedural. Provisions that “create
presumptions, or assign burdens of proof, or prescribe remedies,”
however, “are also incidental to Congress’ power to define the
right that it has created.” Id. In other words, a procedural
rule may be so intertwined with a substantive right that the
court must view it as substantive.
¶31 We find merit in the model articulated by the Supreme
Court. There will be times when the legislature enacts laws that
confer substantive rights. At times, the procedures attached to
the substantive right cannot be stripped away without leaving the
right or duty created meaningless. The burden of proof
associated with special mitigation is one of those instances.

5 While Mr. Drej has alleged a constitutional defect under
both the federal equal protection clause and the state’s uniform
operation of laws provision, we need only evaluate special
mitigation under the latter because the Utah provision is at
(continued...)
13 No. 20080003
Utah’s special mitigation statute creates a substantive right,
which the legislature generally has the authority to enact. But
the procedural portion of the statute that requires the defendant
to prove special mitigation by a preponderance of the evidence is
inextricably connected to the right to plead special mitigation
in the first place. Thus, the legislature did not act contrary
to Utah’s separation of powers provision when it enacted the
special mitigation statute by simple majority, as opposed to the
super-majority that is required of procedural rules.
III. EQUAL PROTECTION UNDER THE FEDERAL
AND STATE CONSTITUTIONS
¶32 Lastly, Mr. Drej argues that the special mitigation
statute violates the equal protection guarantee of the Fourteenth
Amendment and the uniform operation of laws provision of the Utah
Constitution. While known as the uniform operation of laws
provision, art. I, section 24 of the Utah Constitution has long
been considered the state’s equal protection clause; the two
“‘embody the same general principle.’” Gallivan v. Walker, 2002
UT 89, ¶ 31, 54 P.3d 1069 (quoting Malan v. Lewis, 693 P.2d 661,
669 (Utah 1984)); see also Wood v. Univ. of Utah Med. Ctr., 2002
UT 134, ¶ 33, 67 P.3d 436 (stating that the uniform operation of
laws provision is Utah’s “analogue to the federal due process
guarantee”); Blue Cross & Blue Shield of Utah v. State Tax
Comm’n, 779 P.2d 634, 637 (Utah 1989) (stating the provisions are
substantially similar). The provision provides that, “[a]ll laws
of a general nature shall have uniform operation.” Utah Const.
art. I, § 24. The equal protection clause found in the
Fourteenth Amendment of the U.S. Constitution prohibits the state
from “deny[ing] to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1.
¶33 Even though the uniform operation of laws provision is
the state’s analogue to equal protection under federal law, “our
construction and application of Article I, § 24 are not
controlled by the federal courts’ construction and application of
the Equal Protection Clause.” Malan, 693 P.2d at 670; see also
Gallivan, 2002 UT 89, ¶ 33. The uniform operation of laws
clause, however, is “at least as exacting” as its federal
counterpart. Gallivan, 2002 UT 89, ¶ 33 (internal quotation
marks omitted).5 The Utah provision may, “‘in some

5 (...continued)
least as rigorous as the federal guarantee. See ABCO Enters. v.
State Tax Comm’n, 2009 UT 36, ¶ 14, 211 P.3d 382; Blue Cross &
Blue Shield of Utah v. State Tax Comm’n, 779 P.2d 634, 637 (Utah
1989).
No. 20080003 14
circumstances, [be] more rigorous than the standard applied under
the federal constitution.’” Id. (quoting Mountain Fuel Supply
Co. v. Salt Lake City Corp., 752 P.2d 884, 889 (Utah 1988); see
also Blue Cross & Blue Shield, 779 P.2d at 637 (stating the
guarantees under the Utah Constitution are not only as least as
vigorous but “probably more” protective than the federal equal
protection clause). Indeed, the differing “language,” “context,”
and “jurisprudential considerations” found in and surrounding the
two provisions have led to differing legal consequences. Malan,
693 P.2d at 670; Gallivan, 2002 UT 89, ¶ 33. The most notable of
these differing legal consequences is that article I, section 24
demands more than facial uniformity; the law’s operation must be
uniform. Gallivan, 2002 UT 89, ¶ 37. “A law does not operate
uniformly if persons similarly situated are not treated
similarly.” State v. Mohi, 901 P.2d 991, 997 (Utah 1995)
(internal quotation marks and alteration omitted); see also Blue
Cross & Blue Shield, 779 P.2d at 637 (stating the Utah provision
restrains the legislature from “classifying persons in such a
manner that those who are similarly situated with respect to the
purpose of a law are treated differently by that law”).
¶34 In analyzing the constitutionality of a statutory
scheme under the uniform operation of laws provisions we engage
in a three-part inquiry. First, we determine what, if any,
classification is created under the statute. State v. Schofield,
2002 UT 132, ¶ 12, 63 P.3d 667; see also Gallivan, 2002 UT 89,
¶ 43. Second, we inquire into whether the classification imposes
on similarly situated persons disparate treatment. Schofield,
2002 UT 132, ¶ 12. Finally, we analyze the scheme to determine
if “the legislature had any reasonable objective that warrants
the disparity.” Id. (internal quotation marks omitted). The
first two parts of this test are a threshold inquiry as to
whether a “discriminatory classification exists.” Gallivan, 2002
UT 89, ¶¶ 44-46. Without such a classification, the statutory
scheme and the uniform operation of laws never intersect and
there is no need to further inquire into the permissibility of
the statute. Id.; see also Merrill, 2005 UT 34, ¶ 34 (stating
“the creation of classes and the discrimination among them is
inherent to all laws” but the law is unconstitutional only if it
is “unreasonable or arbitrary” (internal quotation marks
omitted)). The third element of Utah’s uniform-operation-of-law
test, the analysis of the reasonable objectives underlying the

6 Mr. Drej has attempted to persuade us to apply the federal
courts’ model of heightened scrutiny to our analysis of the
uniform operation of laws. Indeed, equal protection
jurisprudence under the federal law flows largely from the
standard of review assigned to the state action. See United
States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J.,
dissenting). We have held, however, that arguments that this
court should apply the federal court’s strict, intermediate, or
rational basis scrutiny to our analysis under the uniform
operations of laws provision of the Utah Constitution is
“unhelpful.” Gold Cross, 903 P.2d at 426. “Such language . . .
is not readily transposed to the balancing test we apply under
the uniform operation of laws provision . . . .” Id. Rather
than conforming to the federal rubric, we have developed two
levels of scrutiny for our analysis of the constitutionality of a
statutory scheme under the uniform operation of laws provision.
We have also articulated a test to determine when to apply
heightened scrutiny to our analysis. See Gallivan v. Walker,
2002 UT 89, ¶ 40, 54 P.3d 1069. While we do not need to engage
in this analysis in this appeal, we remind parties that our
analysis is distinct from that found within federal
jurisprudence.
15 No. 20080003
disparate treatment, follows one of two, three-part inquiries.
See Mohi, 901 P.2d at 995 (noting that we apply either a
“reasonable in relation” test or a “rationally related” test);
compare Gallivan, 2002 UT 89, ¶ 42 (articulating the reasonable
in relation test), with Blue Cross & Blue Shield, 779 P.2d at 637
(describing the rationally related test). Which analysis applies
depends on the level of scrutiny that must be applied to the
statutory scheme.6 However, given our holding that special
mitigation does not impose disparate treatment between classes of
criminal defendants, we do not need to engage in this final step
of the state’s uniform-operation-of-laws analysis.
A. Classification Created
¶35 We turn to the plain language of the statutory scheme
to determine what classification is created by a legislative
enactment. See Mohi, 901 P.2d at 997. Section 76-5-205.5
plainly creates a classification that permits a limited number of
criminal defendants to argue that they are entitled to a one-
degree reduction in their conviction based on establishing that a
delusion led them to commit a criminal act. Utah Code Ann.
§ 76-5-205.5 (Supp. 2009). This classification is a narrow one.
The defendant must fall into a class of defendants suffering from
a statutorily defined mental illness, and the defendant must act
reasonably in light of the delusion. See § 76-5-205.5(1)(a).

No. 20080003 16
The class is further limited to defendants charged with
aggravated murder, murder, attempted aggravated murder, or
attempted murder. Id. § 76-5-205.5(5)(b).
B. Disparate Treatment of Delusional Defendants
¶36 We have repeatedly noted that the legislature “‘has
considerable discretion in the designation of classifications.’”
Malan, 693 P.2d at 671 (quoting State Tax Comm’n v. Dep’t of
Finance, 576 P.2d 1297, 1298 (Utah 1978). Our corresponding
analysis is “whether such classifications operate equally on all
persons similarly situated.’” Id. (quoting State Tax Comm’n,
576 P.2d at 1298). Disparate treatment exists when the statutory
scheme “work[s] a discriminatory hardship on an identifiable
group of persons who were singled out for treatment different
from that to which other identifiable groups were made subject.”
Merrill, 2005 UT 34, ¶ 38. Mr. Drej argues that defendants who
murder, or attempt to murder, while acting under a delusion
prompted by a mental illness are treated disparately under the
statute because other defendants charged with murder do not face
the same burden of proof in persuading the trier of fact to
accept a theory of reduced culpability. Mr. Drej’s argument is
based entirely on an analogy between special mitigation and the
affirmative defense of imperfect self-defense. Mr. Drej’s
argument is that defendants who argue they are less culpable for
a murder on the basis of a delusion are similarly situated to
those charged with murder who mistakenly believe they are
justified in committing a murder, yet the former have a greater
burden of proving their claim.
¶37 Mr. Drej points to a number of similarities linking a
defendant who pleads imperfect self-defense with one who argues
for special mitigation. For instance, in both instances the
defendant must have “cause[d] the death of another or attempt[ed]
to cause the death of another.” Compare Utah Code Ann. § 76-5-
203(4)(Supp. 2009) (using the terms “caused” and “attempted”)
with id. § 76-5-205.5(1)(Supp. 2009) (using the terms “causes”
and “attempts”). Both statutes require the defendant to argue
the actions came under a belief of legal justification. Compare
id. § 76-5-203(4) (requiring the defendant to act “under a
reasonable belief that the circumstances provided a legal
justification or excuse”) with § 76-5-205.5(1)(a)(ii)-(iii)
(requiring the defendant to act under delusional facts that
“would provide a legal justification” and that the defendant’s
actions were “reasonable”). Finally, both allow a defendant to
argue for a one-degree reduction in criminal culpability. See
§§ 76-5-203(4)(c), 76-5-205.5(5)(b).

17 No. 20080003
¶38 Mere commonality between two statutes is not always
sufficient to establish that a legislative classification treats
similarly situated persons disparately. See State v. Honie, 2002
UT 4, ¶ 24, 57 P.3d 977 (holding that persons charged with
aggravated murder and felony murder are not similarly situated
despite “common factors” overlapping between the two offenses).
Indeed, there are significant differences that prevent us from
holding that a defendant arguing special mitigation is similarly
situated, and thereby treated disparately, to the defendant who
pleads imperfect self-defense. First, the trier of fact must
consider a defendant’s imperfect self-defense argument when it
evaluates the general offense; the defense goes to the intent
element of the crime. Special mitigation is only evaluated after
the trier of fact has found the defendant guilty of the general
charge, including all of its intent elements. Second, defendants
who act in a delusional state due to mental illness are arguably
different, from a policy standpoint, from defendants who
misperceive the events surrounding their conduct. In the latter
situation, the trier of fact can undertake an objective
assessment from the perspective of the defendant and evaluate
whether it was reasonable for the defendant to act as he did. In
contrast, the trier of fact in a special mitigation case cannot
so easily step into the defendant’s place and evaluate his
actions. Special mitigation is not based on the objective facts
surrounding the defendant, but rather is concerned entirely with
what is going on in the mind of the defendant and whether the
delusion in question would lead a person to act the way the
defendant did. Ultimately, the evidence and facts related to the
presence of special mitigation are entirely within the knowledge,
memory, and mental processes of the defendant.
¶39 Given these distinctions, we conclude that a defendant
arguing for special mitigation on the basis of mental illness is
not similarly situated to a defendant who argues the affirmative
defense of imperfect self-defense. They are both undoubtedly
subclasses of criminal defendants charged for killing, or
attempting to kill, another person. But, as we previously have
noted, the legislature may treat subclasses of murder defendants
differently without imposing disparate treatment of similarly
situated persons. Moreover, the procedures and issues at stake
in special mitigation cases are distinct from those found in any
affirmative defenses of the Utah Code. Given that these
defendants are not similarly situated to defendants who plead
imperfect self-defense, we need not engage in an analysis of
whether the legislature had a reasonable objective in treating
them differently. Therefore, special mitigation is
constitutional under the uniform operations of laws provision of
the Utah Constitution.

No. 20080003 18
CONCLUSION
¶40 In enacting the special mitigation statute, the
legislature elected to provide those mentally-ill defendants who
act under a delusion a method of reducing their culpability after
the state has established every element of the charged offense
beyond a reasonable doubt. The balance the legislature has
struck is permissible under both state and federal law. First,
the statutory scheme is lawful in light of due process and
independent state law because special mitigation is neither an
affirmative defense nor a substantive offense that may be charged
against a defendant. Second, the special mitigation statute is
constitutional under the state’s separation of powers provision
because the burden of proof provision is so connected to the
substantive right to mitigation created by the statute that it
may not be stripped away. It was constitutionally permissible
for the legislature to enact special mitigation by a simple
majority vote. Finally, special mitigation is constitutional
under the state’s uniform operation of laws provision, and
thereby lawful under the less-rigorous standards of federal
jurisprudence arising from the equal protection clause, because
the statute does not impose disparate treatment on similarly
situated persons.
¶41 We therefore affirm the decision of the district court
and remand the case for further proceedings.
---
¶42 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.