               This opinion is subject to revision before final
                      publication in the Pacific Reporter
                               2020 UT 27


                                  IN THE

     SUPREME COURT OF THE STATE OF UTAH

  SALT LAKE COUNTY, DUCHESNE COUNTY, UINTAH COUNTY,
WASHINGTON COUNTY, and WEBER COUNTY, political subdivisions
                  of the State of Utah,
                       Appellants,
                                     v.
             STATE OF UTAH, DELTA AIR LINES, INC.,
                 and SKYWEST AIRLINES, INC.,
                          Appellees.

                            No. 20180586
                         Heard May 6, 2019
                         Filed May 18, 2020

                          On Direct Appeal

                     Third District, Salt Lake
                    The Honorable Kara Pettit
                         No. 170904525


                               Attorneys:
Sim Gill, Darcy M. Goddard, Timothy Bodily, Bradley C. Johnson,
 Jacque M. Ramos, Salt Lake City, for appellant Salt Lake County
   Tyler C. Allred, Duchesne, for appellant Duchesne County
   Jonathan A. Stearmer, Vernal, for appellant Uintah County
     Eric W. Clarke, Brian R. Graf, St. George, for appellant
                      Washington County
   Courtlan P. Erickson, Ogden, for appellant Weber County
  David N. Wolf, Laron Lind, Andrew Dymek, Salt Lake City,
                  for appellee State of Utah
     Gary R. Thorup, James D. Gilson, David L. Arrington,
 Cole P. Crowther, Salt Lake City, for appellees Delta Air Lines,
                Inc. and SkyWest Airlines, Inc.
                    SALT LAKE COUNTY v. STATE
                       Opinion of the Court

  CHIEF JUSTICE DURRANT authored the opinion of the Court, in
     which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
          JUSTICE PEARCE, and JUSTICE PETERSEN joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                           Introduction
   ¶1 Salt Lake, Duchesne, Uintah, Washington, and Weber
Counties (Counties) filed a lawsuit against the State of Utah,
challenging several provisions of the Utah Tax Code as
unconstitutional (Challenged laws).1 The district court dismissed
two of the Counties’ claims as unripe because the allegations in
their complaint did not show they had been adversely affected by
the tax code provision at issue. The court then dismissed the
Counties’ remaining claims for a failure to exhaust administrative
remedies because the Counties had not first filed an appeal of a tax
assessment with the Utah State Tax Commission. Because none of
the Counties’ claims presents a justiciable controversy, we affirm
the district court’s decision.
    ¶2 The district court properly dismissed the Counties’ claims
on ripeness grounds. Under our ripeness doctrine, courts should
resolve legal issues only where the resulting legal rule can be
applied to a specific set of facts, thereby resolving a specific
controversy. Although the Counties cite evidence outside their
pleadings to suggest that the tax code provision at issue had
already adversely affected them, they have not incorporated this
evidence into their complaint. So their complaint is facially
insufficient to show that the dismissed claims were ripe.
Accordingly, we affirm the district court’s dismissal of the two
claims dismissed on ripeness grounds.
    ¶3 Further, we affirm the district court’s dismissal of the
Counties’ remaining claims because those claims are best viewed
as requests for an advisory opinion—something we do not provide.
According to the Counties, their claims “do not arise from a specific
tax assessment challenged, unchallenged, or forgone.” And they do
not “depend upon averments of particular assessments to maintain
this action.” Instead, their claims “are structurally based and stem
from the Challenged laws’ enactment and unconstitutional

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   1 Delta Air Lines, Inc. and SkyWest Airlines, Inc. (Airlines)
intervened as defendants in the district court.

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                           Opinion of the Court

assessment[-]mandated methodology.” In other words, the
Counties’ purpose in turning to the judiciary in this case is to obtain
a judicial declaration that the Challenged laws are unconstitutional
in the abstract. Because we have “no power to decide abstract
questions or to render declaratory judgments[] in the absence of an
actual controversy directly involving rights,”2 we affirm the district
court’s dismissal of the Counties’ remaining claims.
                                  Background
    ¶4 Generally, an individual’s property tax obligation is
determined by the county assessor for the county in which the
person’s property is located. But where a business operates in more
than one county, the Utah Tax Code provides that its property tax
obligation is determined by a central assessor, the state tax
commission. In 2015, the Utah legislature amended portions of
Utah’s tax code that establish the methodology for determining the
property tax obligations of airlines operating within the state. Three
of the amended tax provisions are relevant in this case.
    ¶5 First, the legislature enacted Utah Code section 59-2-201(4)
(Valuation law). The Valuation law provides that the value of an
aircraft is based on the Airliner Price Guide, an airline industry
pricing publication.3 But the statute says that the tax commission
may use an alternative valuation method where it has “clear and
convincing evidence that the aircraft values reflected in the aircraft
pricing guide do not reasonably reflect fair market value of the
aircraft.”4 Additionally, the Valuation law provides for an
incremental downward “fleet adjustment” in the value of every
aircraft, after the first three, owned by an airline. 5
    ¶6 The Counties brought a number of facial and as-applied
challenges to the constitutionality of the Valuation law. In the first
and second claims of their complaint, they argue that the Valuation
law’s “clear and convincing evidence” standard violates article
XIII, section 2(1) of the Utah Constitution, which states that “all
tangible property in the State that is not exempt” shall be “assessed
at a uniform and equal rate in proportion to its fair market value”
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   2Univ. of Utah v. Indus. Comm’n of Utah, 229 P. 1103, 1104 (Utah
1924).
   3   UTAH CODE § 59-2-201(4)(b)(ii).
   4   Id. § 59-2-201(4)(d).
   5   Id. § 59-2-201(4)(c).

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                       Opinion of the Court

(uniformity clause). The Counties claim the “clear and convincing
evidence” standard violates the uniformity clause because, where
the values listed in the Airliner Price Guide differ from fair market
value, it creates a higher bar for assessing property at a fair market
value than is established for other types of property. The Counties
allege that for other types of property, the tax commission “must
only meet a preponderance of the evidence standard in establishing
fair market value.” They also argue that it prevents the tax
commission from determining the fair market value of aircraft
property.
   ¶7 In the Counties’ third and fourth claims, they argue that
the Valuation law’s “fleet adjustment provision” violates the
uniformity clause because it provides for a property tax discount
applicable only to airlines, and because it prevents the tax
commission from assessing the value of aircraft at fair market
value.
   ¶8 Finally, in the Counties’ fifth and sixth claims, they
challenge the Valuation law for violating the constitution’s
delegation of authority over tax assessments to the tax commission.
They claim that by requiring the tax commission to use the
valuations provided in outside pricing guides, the legislature has
unconstitutionally delegated tax commission authority to the
publishers of those pricing guides. They also argue that the
Valuation law violates the constitution’s separation-of-powers
provisions because it impermissibly allows the legislature to exert
authority over an executive agency’s responsibility—the
responsibility of assessing property tax obligations.
    ¶9 The district court dismissed all of the Counties’ claims
related to the Valuation law because “administrative appeals that
remain pending” could “obviate the need to reach some of the
as-applied constitutional questions raised by the Counties.”6 This
was so, the court explained, because the tax commission could,
“upon clear and convincing evidence,” “apply an alternative
method for valuation of aircraft.” And, according to the court, the
result of the tax commission proceedings could be a property tax
assessment that corresponds with the property’s “fair market
value,” in which case the Valuation law would not harm the
Counties. The court also found that “the determination of fair

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   6 All the dismissals at issue in this case were made without
prejudice.

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                         Opinion of the Court

market value and whether the airline property is undervalued
under the Valuation . . . Law[] are factual findings that underlie the
Counties’ constitutional claims,” so tax commission proceedings
would “be useful to better frame the constitutional claims that may
not be obviated by the Commission’s determinations.” The
Counties appeal this determination as to their uniformity clause
claim regarding the “clear and convincing evidence” standard (first
claim), their uniformity clause claim regarding the “fleet
adjustment”      provision       (third      claim),    and      their
separation-of-powers claim (sixth claim).  7


    ¶10 The legislature also enacted Utah Code section 59-2-804
(Allocation law). The Allocation law provides a formula for
determining an airline’s property tax obligation to the State of
Utah.8 Because most aircraft do not remain permanently in any one
state, Utah imposes property taxes only for the time in which the
aircraft is in the state. This tax obligation is calculated as a
percentage of the entire value of the airline’s property according to
the formula provided by the Allocation law.
    ¶11 In their seventh and eighth claims, the Counties argue that
the Allocation law violates article XIII’s uniformity clause and the
provision mandating that property tax should be assessed to any
non-exempt property. They argue that it is unconstitutional
because, if the Allocation law were applied uniformly by every
state, a certain percentage of the value of an airline’s property
would escape taxation.
    ¶12 As it did with the Valuation-law-related claims, the district
court dismissed the Counties’ Allocation-law-related claims for a
failure to exhaust administrative remedies. The court held that “the
determination of fair market value and whether the airline
property is undervalued under the . . . Allocation Law[] are factual
findings that underlie the Counties’ constitutional claims.” The

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   7   The Counties have not appealed the dismissal of their
fair-market-value-clause claims regarding the “clear and
convincing evidence” standard (second claim) or regarding the
“fleet adjustment” provision (fourth claim). Although the Counties
do not explain why these claims were not appealed, we assume it
is because they would undoubtedly require factual findings
regarding the fair market value of specific property—a task better
left for an administrative proceeding.
   8   Id. § 59-2-804.

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                       SALT LAKE COUNTY v. STATE
                          Opinion of the Court

court further held that the tax commission should be allowed to
make these findings in an administrative proceeding because it
would “be useful to frame the constitutional claims.” Specifically,
the court explained that tax commission findings “regarding
allocations using the [formula provided by the Allocation law]
w[ould] be useful to frame the constitutional claims regarding the
Allocation Law.” Finally, the court noted that the Counties were
already pursuing appeals of the tax commission’s determinations,
so “inconsistent findings could result if both the Commission and
t[he] Court rendered factual findings regarding fair market value
of the airlines’ property in simultaneous proceedings.” The
Counties appeal this determination as to their seventh and eighth
claims.
      ¶13 Lastly, the legislature enacted Utah Code section 59-2-1007
(Threshold law). The Threshold law bars counties from challenging
a tax commission’s property tax assessment unless a county
“reasonably believes” the tax commission’s assessment has
undervalued property by at least 50 percent.9 In the Counties’ ninth
and tenth claims, they challenged the Threshold law under the
open courts provision of the Utah Constitution and article XIII’s
uniformity clause. But, noting that the Counties’ complaint does
“not identif[y] a specific instance in which they were denied the
opportunity to pursue an appeal of an airline assessment under the
. . . Threshold Law,” the court dismissed these claims as unripe.
The Counties appeal this ripeness determination as to their open
courts claim (ninth claim) but not as to their uniformity clause
claim (tenth claim).10 We have jurisdiction over this appeal
pursuant to Utah Code section 78A-3-102(3)(j).
                           Standard of Review
   ¶14 We are asked to review a district court’s dismissal of
several claims under rules 12(b)(1) and 12(b)(3) of the Utah Rules

__________________________________________________________
   9   Id. § 59-2-1007(2)(b).
   10  The Counties also brought an eleventh claim in their
complaint, which challenged the Valuation, Allocation, and
Threshold laws as violating article I, section 24 of the Utah
Constitution, and the Fourteenth Amendment of the United States
Constitution. This claim, as it relates to the Valuation and
Allocation laws, was dismissed without prejudice for a failure to
exhaust administrative remedies, and, as it relates to the Threshold
law, it was dismissed without prejudice as unripe.

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                        Opinion of the Court

of Civil Procedure. A dismissal made under either of these rules
“presents a question of law that we review for correctness.”11
                              Analysis
    ¶15 We must determine whether the district court erred in
dismissing one of the Counties’ claims as unripe and several other
claims for a failure to exhaust administrative remedies. We hold
that neither of the court’s determinations was in error.
     I. We Affirm the District Court’s Ripeness Determination
   ¶16 The Counties argue that the district court erred in
dismissing, on ripeness grounds, their claim challenging the
Threshold law. They argue that their challenge of the Threshold
law is ripe because it is certain that the Threshold law will deprive
the Counties of an opportunity to challenge the tax commission’s
property tax assessment. And they argue that the district court
erred in excluding from its consideration matters outside the
pleadings because those matters established that their challenge of
the Threshold law is ripe. We disagree.
        A. The Counties’ pleadings are insufficient to establish
            that their challenge of the Threshold law is ripe
    ¶17 The Counties argue that, because the Threshold law will
inevitably bar a challenge to a tax assessment, their challenge of the
law is ripe. But we disagree because the Counties failed to plead
that their right to challenge a tax assessment had been violated
pursuant to the Threshold law, or that they intended to challenge a
tax assessment that would be barred by the Threshold law.
   ¶18 The “[r]ipeness doctrine is invoked to determine whether
a dispute has yet matured to a point that warrants a decision.”12
The doctrine rests upon the principle “that courts should decide
only ‘a real, substantial controversy,’ not a mere hypothetical




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   11Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29, ¶ 10, 232
P.3d 999 (“A district court’s grant of a motion to dismiss based
upon the allegations in the plaintiff’s complaint[] presents a
question of law that we review for correctness.” (alteration in
original) (citation omitted)).
    13B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
   12

PRACTICE & PROCEDURE § 3532 (3d ed. 2018).

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                     SALT LAKE COUNTY v. STATE
                        Opinion of the Court

question.”13 There are a number of policies underlying the doctrine.
These include “block[ing] the court from rendering advisory
opinions on matters that may not impact the parties to a case,”
“requiring a clear factual record prior to adjudication,”
“facilitat[ing] informed decisions that fit the circumstances of
individual cases,” and “prevent[ing] the court from intruding on
legislative functions by unnecessarily ruling on sensitive
constitutional questions.”14 These policies underlie our ripeness
test.
    ¶19 We have stated that “[i]ssues are ripe for adjudication
where it appears ‘there is an actual controversy, or that there is a
substantial likelihood that one will develop so that the adjudication
will serve a useful purpose in resolving or avoiding controversy or
possible litigation.’”15 By focusing a court’s attention on whether
__________________________________________________________
   13Id. § 3532.2 (internal quotation marks omitted). Because of the
ripeness doctrine’s aversion to resolving merely hypothetical
disputes, the doctrine is often discussed in connection with the rule
against issuing advisory opinions. And the policies underlying the
ripeness doctrine also underlie the advisory opinion rule.
   14 Carter v. Lehi City, 2012 UT 2, ¶ 93, 269 P.3d 141. These policies
are substantially similar to the policies underlying the federal
ripeness doctrine. According to Wright and Miller, these include
the belief that “[u]nnecessary decisions dissipate judicial energies
better conserved for litigants who have a real need for official
assistance,” and that defendants “should not be forced to bear the
burdens of litigation without substantial justification” or to bear the
burdens of defending against “hypothetical possibilities rather
than immediate facts.” WRIGHT & MILLER, supra ¶ 18 n.12, at
§ 3532.1. But perhaps the most important policy reason for the
ripeness doctrine is that judicial decisions involve “lawmaking,”
and “unnecessary lawmaking should be avoided, both as a matter
of defining the proper role of the judiciary in society and as a matter
of reducing the risk that premature litigation will lead to ill-advised
adjudication.” Id.
   15 Salt Lake Cty. Comm’n v. Salt Lake Cty. Att’y, 1999 UT 73, ¶ 12,
985 P.2d 899 (quoting Salt Lake Cty. v. Salt Lake City, 570 P.2d 119,
121 (Utah 1977)). Our ripeness test, although not identical, is similar
to the federal approach. Under the federal approach, ripeness is
determined through a balancing test in which the court “balances
the need for decision against the risks of decision.” WRIGHT &
                                                          (Continued)
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                        Opinion of the Court

the resolution of a legal issue will be helpful in resolving or
avoiding a particular controversy or possible litigation, this test
suggests that courts should resolve legal issues only where the legal
determination can be applied to the facts attendant to a specific
controversy.
    ¶20 This principle, that issues are ripe for adjudication only
where the legal determination can be applied to the facts of a
particular controversy, is illustrated in cases involving challenges
to the constitutionality or legality of statutes or ordinances. In this
context, we have explained that “[w]here there exists no more than
a difference of opinion regarding the hypothetical application of a
piece of legislation to a situation in which the parties might, at some
future time, find themselves, the question is unripe for
adjudication.”16 In other words, a challenge to a statute is unripe
unless the court’s legal determination regarding the statute can be
applied to specific facts in the case. This is true even where we have
“no[] doubt” that the factual circumstances in which the legal
determination would be applied will “arise at some future time.”17
   ¶21 For example, in Baird v. State we explained that a “plaintiff
may seek and obtain a declaration as to whether a statute is
constitutional by . . . alleging facts indicating how he will be

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MILLER, supra ¶ 18 n.12, at § 3532.1. The need for decision is
measured by the “probability and importance of the anticipated
injury,” and the risks of decision “are measured by the difficulty
and sensitivity of the issues presented, and by the need for further
factual development to aid decision.” Id. In other words, federal
courts determine ripeness after balancing “the hardship to the
parties of withholding court consideration” on one side, and “the
fitness of the issues for judicial decision” on the other. Id. Because
this test often requires courts to make difficult “value judgments,”
it has been said that “[t]he general rule for determining whether
ripeness exists is easy to state and hard to apply.” Id. § 3532
(alteration in original) (citation omitted). Although we have never
adopted the federal balancing test, we have previously considered
many of the test’s competing concerns in determining ripeness and,
therefore, our case law may be consistent with the federal
approach.
   16Redwood Gym v. Salt Lake Cty. Comm’n, 624 P.2d 1138, 1148
(Utah 1981).
   17   Id.

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                      SALT LAKE COUNTY v. STATE
                         Opinion of the Court

damaged by its enforcement.”18 And we concluded that a
“complaint is insufficient” if it “merely challenges the
constitutionality of a statute without in some way indicating that
plaintiff will be affected by its operation or is subject to its terms
and provisions.”19 Thus a complaint challenging a statute’s validity
satisfies the ripeness requirement when it contains facts showing
that the challenged statute has been applied or will imminently be
applied in a way that harms the plaintiff.
    ¶22 This rule served as the basis of our decision in Salt Lake
County v. Bangerter.20 In that case, a number of counties appealed
the dismissal of their claim challenging a provision in the tax code.
We affirmed the dismissal because the counties “ha[d] failed to set
forth the specific facts of any case that [had] arisen.”21 And, “[a]s
far as we [could] determine from the record [of the case], no
taxpayer [had] actually received a reduction of his property taxes
under the [challenged] statute.”22 We held, therefore, that “[t]o
render the constitutionality of the [challenged statute] ripe for
adjudication,” the counties had to “produce a tax assessment that
[had] been challenged and reduced under the [challenged statute]
with a resulting loss of revenue to the relevant county.”23 “In the
absence of such a reduced assessment,” we explained, “our hands
[were] tied because a justiciable controversy necessarily involves
an accrued state of facts as opposed to a hypothetical state of
facts.”24 Like the unripe claim in the Bangerter case, the Counties’
claims challenging the Threshold law are premised on a merely
hypothetical state of facts.
   ¶23 In their complaint, the Counties frame their challenge of
the Threshold law in hypothetical terms. They assert that “[i]f an
assessment is below fair market value, but not below the 50%
threshold . . . , only the taxpayer can seek administrative review.”
And because a taxpayer “has no incentive to file an appeal for an

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   18   574 P.2d 713, 716 (Utah 1978).
   19   Id.
   20   928 P.2d 384, 385 (Utah 1996).
   21   Id.
   22   Id.
   23   Id.
   24   Id. (citation omitted) (internal quotation marks omitted).

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                         Opinion of the Court

assessment below fair market value,” “assessments below fair
market value . . . will likely go unchallenged.” According to the
Counties, this statutory framework operates to violate the Utah
Constitution “by insulating from administrative or judicial review
State Tax Commission assessments that are below market value or
are non-uniform.” But the Counties do not allege they were
actually barred from challenging a tax assessment, nor do they
identify an assessment they would have challenged in the absence
of the Threshold law. So nothing in the Counties’ complaint
suggests they have been harmed, or that harm is imminent, because
of the Threshold law.
    ¶24 Nevertheless, on appeal the Counties argue their claim is
ripe because the Threshold law “is invoked ab initio.” In other
words, the Counties argue that because the Threshold law
“prevents any County to appeal any valuations that are below the
50% threshold since 2015,” “there is not only a substantial
likelihood that a controversy will develop in the future, but that
[an] actual controversy has already occurred.” But even though
that may be true, there is nothing in the Counties’ complaint to
suggest that the Counties were prohibited, or dissuaded, from
challenging any tax assessments since 2015. So, as it appears in their
complaint, their challenge to the Threshold law is framed only by
hypothetical facts. Accordingly, it is unripe.
              B. The district court did not err by declining
                  to consider the tax commission cases
    ¶25 But the Counties argue that the district court erred in
making its ripeness determination because it disregarded “factual
evidence” showing that, after the complaint in this case had been
filed, the tax commission dismissed four property tax appeals
pursuant to the Threshold law. We disagree. The district court did
not err, because the State filed a motion under rule 12(b)(1), in
which it raised a facial attack on the pleadings, making it
unnecessary for the district court to consider matters outside the
pleadings.
    ¶26 “Motions under [r]ule 12(b)(1) fall into two different
categories: a facial or a factual attack on jurisdiction.”25 In a factual

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   25 WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350; see also Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (“In order to properly
dismiss for lack of subject matter jurisdiction under [r]ule 12(b)(1),
                                                         (Continued)
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                       SALT LAKE COUNTY v. STATE
                           Opinion of the Court

challenge to jurisdiction, the defendant “attacks the factual
allegations underlying the assertion of jurisdiction, either through
the filing of an answer or otherwise presenting competing facts.”26
“In a facial challenge,” on the other hand, “all of the factual
allegations concerning jurisdiction are presumed to be true and the
motion is successful if the plaintiff fails to allege an element
necessary for subject matter jurisdiction.”27 So where defendants
raise facial challenges to jurisdiction, they are not necessarily
arguing that there is an irreparable jurisdictional defect. Instead,
they are arguing that the allegations currently included in the
complaint are insufficient to establish jurisdiction.
    ¶27 Because a facial attack on jurisdiction is “directed solely at
the sufficiency of the complaint’s jurisdictional allegations,” it is
“unlikely that affidavits or other materials outside the pleadings
will be necessary.”28 Where the allegations in a complaint are
insufficient to establish jurisdiction, the court “has at least two
possible courses of action.”29 First, the court “may deny the motion
and direct the [plaintiff] to amend the pleading.”30 Second, the
court may dismiss without prejudice so that the plaintiff can later
file an amended complaint.31
    ¶28 In this case, the State brought a facial attack on jurisdiction.
In its motion to dismiss, the State argued that “[p]laintiffs have not
pleaded facts regarding a specific assessment.” And they explained
that “[t]his failure is fatal because without specific facts and a
specific assessment, there is no case or controversy before the

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the complaint must be successfully challenged on its face or on the
factual truthfulness of its averments.”). We note that the facial
versus factual distinction (and the related case law) comes from
federal courts. Although we are not bound by federal case law, the
federal cases we cite provide a helpful framing—one that is
consistent with our rules of procedure—for addressing the
problem with the Counties’ complaint.
   26   WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350.
   27   Titus, 4 F.3d at 593.
   28   WRIGHT & MILLER, supra ¶ 18 n.12, at § 1350.
   29   Id.
   30   Id.
   31   Id.

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Court.” So the State did not attack the factual allegations in the
Counties’ complaint. Instead, it argued for dismissal because the
complaint lacked sufficient factual allegations. And in response to
this argument, the district court did not need to consider any
materials outside the pleadings.
   ¶29 But the Counties argue that the court’s failure to consider
evidence regarding the tax cases constituted reversible error
because our case law suggests that where a court considers a rule
12(b)(1) motion to dismiss, it “should consider materials outside
the pleadings, including supplemental factual allegations to
determine whether any set of facts support the cause of action
pled.” The Counties’ reliance on the cited case law is misplaced.
    ¶30 The Counties cite four cases in support of their argument:
(1) Coombs v. Juice Works Development Inc.,32 (2) Wheeler v.
McPherson,33 (3) Spoons v. Lewis,34 and (4) America West Bank
Members, L.C. v. State.35 But none of these cases supports the
Counties’ position.
    ¶31 In Coombs, the Utah Court of Appeals reviewed the district
court’s dismissal of a contract case for improper venue under rule
12(b)(3).36 Because the defendant in the case had attached a contract
containing a forum selection clause as part of its motion to dismiss
under rule 12(b)(3), the court of appeals considered whether it was
appropriate to consider the contract without converting the motion
into a rule 56 motion for summary judgment.37 Citing Utah
precedent, the court of appeals explained that only motions
brought under rule 12(b)(6) would trigger a conversion to a motion
for summary judgment.38 Accordingly, it concluded that courts
“may consider facts alleged outside the complaint” without
converting the motion into one for summary judgment.39

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   32   2003 UT App 388, 81 P.3d 769.
   33   2002 UT 16, 40 P.3d 632.
   34   1999 UT 82, 987 P.2d 36.
   35   2014 UT 49, 342 P.3d 224.
   36   Coombs, 2003 UT App 388, ¶ 7.
   37   Id.
   38   Id.
   39   Id. (emphasis added).

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                      SALT LAKE COUNTY v. STATE
                           Opinion of the Court

    ¶32 Coombs does not support the Counties’ position for two
reasons. First, in Coombs, the extra-pleading material at issue was
brought by the defendant in support of the defendant’s factual
attack on venue. As discussed above, factual attacks on the
pleadings necessarily require the introduction of materials outside
the pleadings, by the defendant, to establish that the factual
allegations in a plaintiff’s complaint are not true. Accordingly, the
court of appeals’ statement regarding the appropriateness of
considering materials outside the pleadings should be understood
to apply to factual attacks on the pleadings. Second, by using the
word “may,” the court in Coombs suggested that courts retain
discretion to consider, or to not consider, materials outside the
pleadings. Thus the decision in Coombs does not stand for the
proposition that a court must consider materials outside the
pleadings, especially in deciding a facial challenge to jurisdiction.
    ¶33 Wheeler and Spoons also do not support the Counties’
position. In these cases, we rejected the argument that a motion to
dismiss under rule 12(b)(1) is automatically converted into a rule
56 motion for summary judgment where one or both of the parties
attach materials outside the pleadings. As we explained in both
cases, “the purpose underlying rule 12[(b)(6)’s] conversion
requirement is ‘to allow parties an adequate opportunity to rebut
materials outside the pleadings.’”40 These cases suggest that a court
may consider material outside the pleadings in deciding a rule
12(b)(1) motion and—where necessary to give both parties an
adequate opportunity to rebut materials outside the pleadings—
may convert the motion into a rule 56 motion for summary
judgment. But they do not suggest that a court must consider any
attached material outside the pleadings. And they especially do not
suggest that a court must consider material outside the pleadings
where a plaintiff attaches it in response to a defendant’s facial
attack on the jurisdictional sufficiency of the plaintiff’s complaint.
    ¶34 Finally, America West Bank does not support the Counties’
position. In that case we reviewed a district court’s dismissal, under
rule 12(b)(6), for a failure to state a claim upon which relief could
be granted.41 Although we explained, as the Counties have
indicated, that we should affirm a rule 12(b)(6) ruling only “if it
clearly appears that [the plaintiff] can prove no set of facts in

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   40   Wheeler, 2002 UT 16, ¶ 20 (quoting Spoons, 1999 UT 82, ¶ 4).
   41   2014 UT 49, ¶ 7.

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                            Opinion of the Court

support of his claim,” we also explained that in considering a rule
12(b)(6) motion, a court “need not accept extrinsic facts not pleaded
nor need [it] accept legal conclusions in contradiction of the
pleaded facts.”42 Because America West Bank deals with a rule
12(b)(6) motion, it is not particularly illuminating on the question
raised by the Counties in this case. But to the extent it is relevant,
America West Bank suggests that district courts need not consider
extrinsic facts when considering whether a plaintiff has pled
sufficient jurisdictional facts.43 Accordingly, America West Bank
does not suggest that district courts must consider materials
outside the pleadings when considering a facial attack on
jurisdiction under rule 12(b)(1).
    ¶35 In sum, the allegations in the Counties’ complaint related
to the Threshold law are facially insufficient to show that the
Counties have been adversely affected, or will imminently be
affected, by the Threshold law. So their Threshold law claim is
unripe. And because of the nature of the jurisdictional defect—
facial insufficiency in the pleadings—the district court did not err
in declining to consider materials outside the pleadings to rectify
the jurisdictional issue. Accordingly, we affirm the court’s ripeness
determination.
   II. We Affirm the District Court’s Dismissal of the Counties’
            Remaining Claims Because Those Claims
          are Merely Requests for an Advisory Opinion
   ¶36 The Counties also argue the district court erred in
dismissing their remaining claims for a failure to exhaust
administrative remedies. They assert that the court’s dismissal of
these claims was in error because their claims “give rise to purely
legal questions that cannot be obviated through administrative
adjudication.” Because the Counties’ argument on appeal
suggested that this case did not present an actual controversy, we
requested supplemental briefing. After considering this briefing,

__________________________________________________________
   42   Id. (first alteration in original).
   43 Although rule 12(b)(6) motions and rule 12(b)(1) motions are
typically treated differently with respect to materials outside the
pleadings, the nature of facial challenges to jurisdiction under rule
12(b)(1) is somewhat analogous to a challenge under rule 12(b)(6).
For this reason, our statement in America West Bank regarding
extrinsic facts in the context of rule 12(b)(6) motions may serve as a
helpful analogy in analyzing facial challenges under rule 12(b)(1).

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                    SALT LAKE COUNTY v. STATE
                        Opinion of the Court

we are convinced that the Counties’ claims are merely requests for
advisory opinions. Because we do not issue advisory opinions, we
affirm the district court’s dismissal of those claims.
   ¶37 Although the extent of the judicial power is not clear in
every context, our case law establishes that we do not “decide
abstract questions.”44 This is due to the nature of an abstract
question.
   ¶38 An abstract question is a question that is to be “considered
apart from application to or association with a particular
__________________________________________________________
   44 Utah Transit Auth. v. Local 382 of Amalgamated Transit Union,
2012 UT 75, ¶ 19, 289 P.3d 582. Our analysis of abstract questions is
guided by our case law. But even though the principle against
deciding abstract questions is firmly established in our case law, we
note that a debate exists regarding the source of this principle and
the limits of our judicial power. This debate was recently
highlighted in competing concurring opinions in In re Gestational
Agreement, 2019 UT 40, 449 P.3d 69, opinions which focused on the
requirement of adversariness—a related justiciability requirement
identified in our case law. On one side of the debate is the view set
forth in Justice Pearce’s concurrence. In that opinion, Justice Pearce
argued that we have consistently, and perhaps inaccurately, treated
prudential concerns as constitutional limits on our jurisdiction
when we have not yet undertaken the analysis that would permit
us to speak definitely about the meaning of the Utah Constitution.
See id. ¶ 58 (Pearce, J., concurring). And on the other side of the
debate is the view set forth in Justice Lee’s concurrence. According
to Justice Lee, many of our traditional jurisdictional limits (such as
the rule against deciding abstract questions at issue in this case)
stem from the meaning of the term “judicial power” as it appears
in Utah’s constitution. See id. ¶ 131 (Lee, A.C.J., concurring). But in
declining to answer the abstract question presented by the Counties
in this case, we need not determine whether the rule against
deciding such questions is merely prudential (consistent with
Justice Pearce’s view) or constitutionally-mandated (consistent
with Justice Lee’s view) because either view would lead to the same
result.
    So even though it is possible that, in a future case, a historical
analysis of the original meaning of the Utah Constitution may lead
us to rethink the way our case law has described the limits of the
judicial power, we decline to revisit that case law unnecessarily
here.

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                          Opinion of the Court

instance.”45 But, under our case law, a court cannot answer a legal
question unless it is framed within “specific facts of [a] case that has
arisen.”46 This is so even in the context of a declaratory judgment
action.47
    ¶39 We have explained that even though Utah courts have “the
power to issue declaratory judgments determining rights, status,
and other legal relations within [their] respective jurisdiction,”48
they nevertheless “must operate within the constitutional and
statutory powers and duties imposed upon them.”49 Accordingly,
the power to issue declaratory judgments does not transform our
courts into “forum[s] for hearing academic contentions or
rendering advisory opinions.”50 Thus courts should not “render
declaratory judgments[] in the absence of an actual controversy
directly involving rights.”51
    ¶40 A “controversy” means a “case that requires a definitive
determination of the law on the facts alleged for the adjudication of an
actual dispute, and not merely a hypothetical, theoretical, or
speculative legal issue.”52 Because there can be no “controversy” in
the absence of specifically alleged facts regarding the dispute
between the parties in a case, a court cannot render a declaratory

__________________________________________________________
   45 See Abstract, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
(10th ed. 1998).
   46   Salt Lake Cty. v. Bangerter, 928 P.2d 384, 385 (Utah 1996).
   47  We have repeatedly explained that a court may grant
requested declaratory relief only where the following conditions
exist: “(1) a justiciable controversy; (2) the interests of the parties
must be adverse; (3) the party seeking such relief must have a
legally protect[a]ble interest in the controversy; and (4) the issues
between the parties involved must be ripe for judicial
determination.” Lyon v. Bateman, 228 P.2d 818, 820–21 (Utah 1951)
(emphases added).
    Downs v. Thompson, 2019 UT 63, ¶ 14, 452 P.3d 1101 (quoting
   48

UTAH CODE § 78B-6-401(1)).
   49   Lyon, 228 P.2d at 820.
   50   Id.
   51   Utah Transit Auth., 2012 UT 75, ¶ 19 (emphasis added).
   52Controversy, BLACK’S LAW DICTIONARY (11th ed. 2019)
(emphasis added).

                                    17
                     SALT LAKE COUNTY v. STATE
                        Opinion of the Court

judgment where a plaintiff has not framed the legal question to be
decided within the context of a specific factual dispute.53
    ¶41 We note, however, that the Counties cite a number of cases
they claim support the notion that a court may decide “purely legal
questions” in the absence of an underlying factual dispute. Yet all
of the cited cases, although presenting legal questions for judicial
determination, presented factual circumstances in which the
resolved legal questions could be applied.54 So our case law does

__________________________________________________________
   53 See Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983) (“A
plaintiff with a direct and personal stake in the outcome of a
dispute will aid the court in its deliberations by fully developing all
the material factual and legal issues in an effort to convince the
court that the relief requested will redress the claimed injury.”).
   54 Nebeker v. Utah State Tax Comm’n, 2001 UT 74, ¶¶ 1, 3, 34 P.3d
180 (plaintiff sought to have the tax commission’s decision to apply
a 12 percent special fuel tax to plaintiff’s oilfield commodities
business overturned on constitutional grounds); Bangerter, 928 P.2d
at 386 (“If the Counties wish to attack the Equalization Act in the
abstract without a specific controversy which is ripe for
adjudication, they must approach the legislature, not this court.”);
Brumley v. Utah State Tax Comm’n, 868 P.2d 796, 797 (Utah 1993)
(plaintiffs sought a tax refund for amounts paid in Utah state
income tax on retirement income from federal sources for the tax
years of 1985, 1986, 1987, and 1988); Kennecott Corp. v. Salt Lake Cty.,
702 P.2d 451, 453 (Utah 1985) (plaintiff sought “a partial refund of
its 1981 property taxes previously paid under protest”); Jenkins, 675
P.2d at 1149 (denying plaintiff’s request for declaratory judgment,
which was based on “generalized grievances that [were] more
appropriately directed to the legislative and executive branches of
the state government”); Johnson v. Utah State Ret. Office, 621 P.2d
1234, 1236 (Utah 1980) (plaintiffs sought “payment of benefits paid
into the retirement system on plaintiffs’ behalf”); State Tax Comm’n
v. Wright, 596 P.2d 634, 635 (Utah 1979) (defendant sought dismissal
of a judgment for unpaid tax payments); Baird, 574 P.2d at 715
(overturning a district court’s determination that a statute was
unconstitutional on the ground that it was an “advisory opinion”
because “[t]he alleged adverse actions of [the] defendant [State of
Utah] consisted of the creation, administration, and enforcement of
a legislative act” and “[t]he allegations concerning the
unconstitutionality of the act were all pleaded in the abstract”
                                                          (Continued)
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                          Opinion of the Court

not support the Counties’ argument that we can decide a pure legal
question that is not tied to a specific set of facts. Indeed, it confirms
that we are unable to answer abstract questions by rendering
advisory opinions.
      ¶42 Accordingly, to plead a justiciable controversy, plaintiffs
must plead “concrete facts” “indicating a[] specific injury sustained
or threatened to [the] plaintiff[s].”55 So where plaintiffs merely
make “allegations concerning the unconstitutionality of [a statute]
. . . in the abstract,”56 they have not pled a controversy. Instead,
their claims are more properly characterized as abstract questions,
or, in other words, as requests for advisory opinions. Because, on
the face of their complaint, the Counties do not frame their
constitutional challenges in the context of a specific factual dispute,
their claims are merely requests for advisory opinions.
    ¶43 Throughout the Counties’ complaint, they purport to
attack the Challenged laws “both facially and as applied to the 2017


__________________________________________________________
without any “concrete facts . . . indicating any specific injury
sustained or threatened to [the] plaintiff personally”); Shea v. State
Tax Comm’n, 120 P.2d 274, 274 (Utah 1941) (plaintiff sought a refund
of $4,696.45 for overpayments on fuel taxes); TDM, Inc. v. Tax
Comm’n, 2004 UT App 433, ¶¶ 6–7, 103 P.3d 190 (per curiam)
(summarily reversing a district court determination that the factual
record needed to be further developed in an administrative
proceeding before a case could be brought in the district court).
   55 Bangerter, 928 P.2d at 385 (citation omitted); see id. (“In a
declaratory judgment action, the law itself is at issue. This does not
remove the controversy requirement, however.”); see also Baird, 574
P.2d at 716 (“A plaintiff may seek and obtain a declaration as to
whether a statute is constitutional by averring in his pleading the
grounds upon which he will be directly damaged in his person or
property by its enforcement; by alleging facts indicating how he
will be damaged by its enforcement; that defendant is enforcing
such statute or has a duty or ability to enforce it; and the
enforcement will impinge upon plaintiff’s legal or constitutional
rights. A complaint is insufficient which merely challenges the
constitutionality of a statute, without in some way indicating that
plaintiff will be affected by its operation or is subject to its terms
and provisions.”).
   56   Bangerter, 928 P.2d at 385.

                                      19
                     SALT LAKE COUNTY v. STATE
                        Opinion of the Court

tax assessments.”57 But even though the district court determined
that the Counties’ repeated references to the 2017 tax assessments
rendered their claims regarding the Valuation and Allocation laws
justiciable, the Counties’ arguments on appeal make clear that the
claims raised in their complaint are not based on the facts of the
2017 tax assessment or on any injury stemming directly from it.
    ¶44 In their briefing on appeal, the Counties distance
themselves from any specific factual scenario and never couch their
claims in the context of the 2017 assessment. Instead, they argue
that their claims “give rise to purely legal questions” that “do not
arise from a specific tax assessment challenged, unchallenged, or
foregone.” So it is clear that their claims do not stem from a


__________________________________________________________
   57  “A statute may be unconstitutional either on its face or as
applied to the facts of a given case.” State v. Herrera, 1999 UT 64, ¶ 4
n.2, 993 P.2d 854. We note, however, that the complaint in the case
before us fails to present any as-applied challenges. “In an
as-applied challenge, a party concedes that the challenged statute
may be facially constitutional, but argues that under the particular
facts of the party’s case, ‘the statute was applied . . . in an
unconstitutional manner.’” Gillmor v. Summit Cty., 2010 UT 69, ¶ 27,
246 P.3d 102 (alteration in original) (footnote omitted). Typically,
this type of challenge requires the plaintiff to show that, because of
a particular quality or status of the plaintiff or the plaintiff’s
circumstances, the application of an otherwise sound statutory
provision was unconstitutional. See id. ¶ 30 (explaining that a
party’s “as-applied” challenges were more properly classified as
“facial challenges” because “nothing in [the party’s] petition
allege[d] that there was something uniquely unconstitutional about
the way in which the ordinances were applied to her particular
[circumstances]”); Herrera, 1999 UT 64, ¶ 22 (discussing a
defendant’s “as-applied” claim, which challenged a criminal
statute’s application to the defendant based on the defendant’s
mental illness). But nothing in the Counties’ complaint discusses
the specific manner in which the Challenged laws were applied to
them. Instead, the complaint merely states that the laws were
unconstitutional “as applied to the 2017 assessment.” In fact, with
the exception of the “as applied to the 2017 assessment” statement
sprinkled throughout the complaint, most of the Counties’
allegations are couched in hypothetical terms. So the Counties have
not actually raised any as-applied challenges in their complaint.

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                          Opinion of the Court

“specific injury sustained or threatened.”58 Because the complaint
is not based on a specific instance where the Challenged laws have
been applied (or will imminently be applied), the Counties’
complaint is merely a request for an advisory opinion on the
constitutionality of the Challenged laws.
   ¶45 We also note that the problematic nature of the Counties’
complaint is highlighted by the many other cases in which they
have specifically attacked the Challenged laws based on the laws’
application, or imminent application. As the State points out in its
supplemental brief, the Counties have already raised constitutional
concerns with the Challenged laws in multiple cases that are
currently pending. In Utah, parties may not initiate “a separate
declaratory judgment action when the same parties are already
involved in a separate administrative action or proceeding
involving identical issues.”59 Were we to allow parties to raise
purely legal questions on “narrow issues taken out of . . . context”
in separate declaratory judgment actions, we might “needlessly
increase the risk of inconsistent or erroneous decisions.”60
    ¶46 To ensure that this declaratory judgment action did not
involve identical issues to those already presented in other cases,
we asked the parties to provide supplemental briefing on whether
“any of the Counties’ claims in this case arise from facts stemming
from a tax assessment that is not being challenged, or has not
already been challenged, in another case.” Although the State and
the Airlines argued that the Counties have failed to bring a claim
that had not already been brought in other cases, the Counties
declined to address this question directly. So the “purely legal
questions” the Counties have raised in this case may have already
been raised within the factual context of another case. Thus, were
we to answer the purely legal questions posed by the Counties in
this case, we would risk arriving at a determination that is
inconsistent with a determination made by a court that had the
benefit of considering the same legal questions in a specific factual



__________________________________________________________
   58   Bangerter, 928 P.2d at 385.
   59Hercules, Inc. v. Utah State Tax Comm’n, 1999 UT 12, ¶ 9, 974
P.2d 286.
    Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018
   60

UT 56, ¶ 11, 428 P.3d 1133 (alteration in original) (citation omitted).

                                      21
                    SALT LAKE COUNTY v. STATE
                       Opinion of the Court

context. This possibility highlights the importance of adhering to
the legal principles we have discussed in this opinion.
   ¶47 As we have explained, our case law has firmly established
that courts should not render advisory opinions, or, in other words,
answer abstract questions. And this remains true in the context of
declaratory judgment actions. Because the Counties’ claims are
better characterized as requests for advisory opinions regarding the
constitutionality of the Challenged laws, we do not address them.61
                            Conclusion
   ¶48 We affirm the district court’s dismissal, on ripeness
grounds, of the Counties’ claim challenging the Threshold law
because the Counties’ complaint is facially insufficient to show that
the Threshold law adversely affected them. We also affirm the
court’s dismissal of the Counties’ remaining claims on the ground
that those claims are merely requests for an advisory opinion
because none of the claims is tied to the facts of a particular
controversy.




__________________________________________________________
   61 Utah Transit Auth., 2012 UT 75, ¶ 19 (“One of our earliest
explications of justiciability noted that ‘[e]ven courts of general
jurisdiction have no power to decide abstract questions or to render
declaratory judgments, in the absence of an actual controversy
directly involving rights.’” (alteration in original) (citation
omitted)); see also Jenkins, 675 P.2d at 1149 (explaining that courts
have the constitutional obligation to apply legal principles “to a
particular dispute”).

                                 22
