The significance of this amendment has been a matter of debate over the years as legislators and interest groups have initiated legislation relating to evidentiary or procedural matters.

On the one hand, arguments have been made that the 1984 Amendment preempts any legislative action that pertains to evidence or procedure other than a "joint resolution" of the Legislature that literally seeks to amend a Court rule.

On the other hand, arguments have been made that while the Court has the authority to adopt rules of procedure and evidence, this authority should not reduce or restrict the overall role and power of the Legislature to determine matters that come squarely within the realm of public policy, even if they relate to evidence or procedure, and that amending Court rules is not an effective option for establishing public policy because of the authority of the Court to change a rule back at its pleasure.

As these arguments have gone back and forth, the Legislature has continued to enact statutes and establish public policy. It has continued to maintain and add to Title 77 (Utah Code of Criminal Procedure), Title 78(Judicial Code), and others. It has continued to maintain and add to various Uniform Laws that, more often than not, include specific provisions on evidence or procedure. And it has continued to maintain "Judiciary" standing and interim committees that often consider matters of evidence and procedure.

The cumulative effect of all of this is that the Utah Code is deeply embedded with laws that arguably relate to evidence and procedure. It has been assumed, moreover, that these laws enjoy the same basic presumption of constitutionality as any other statute enacted by the Legislature.

All of this, however, is a little uncertain now.

On March 3, 2006, the Utah Supreme Court handed down a unanimous ruling in Burns v. Boyden, that refused to permit a chiropractic physician to use the patient-physician privilege as grounds for denying a request for documents in a fraud investigation, holding that the presumption allowing a physician to assert the privilege on a patient's behalf can be rebutted when the only interest being served is that of the physician.

In reaching this conclusion, the Court incorporated the 1984 constitutional amendment into its analysis, deciding one important issue, raising a few others, and underscoring the Court's "primary constitutional authority to promulgate procedural and evidentiary rules subject to the possibility of amendment by two-thirds absolute majority vote of the Legislature."

First, the Court ruled that it has no obligation to give any weight, consideration, or deference to the statutory-based patient-physician privilege in Utah Code Ann. ¤ 78-24-8. It was enough that there was a Court rule on point. With that, the statute, in effect, did not exist.

Second, the Court, in footnote 3, raised the possibility, without deciding, that statutes that pertain to evidentiary or procedural matters may not be valid, even if there is no Court rule directly on point. This, if true, could have a monumental impact in invalidating a considerable number of laws that are currently on the books but are not reflected in Court rules - laws that have been relied on for decades and have taken just as long to develop and refine.

Third, the Court, in footnote 4, raised the possibility, without deciding, that even if a statute were to be given legal effect outside of court, it would not be given legal effect inside court if it conflicted with a right or privilege established by Court rule.

Fourth, the Court, in footnote 7, elevated the constitutional role and significance of advisory committees on Court rules to that of a legislative body that warrants deference and serves as the source of legislative intent.

So what does all of this mean?

First, the case creates legal uncertainties that lawyers need to be aware of and should make their clients aware of, too.

Second, the case significantly elevates the importance of the Court's rulemaking process and the role of advisory committees since, if nothing else, it is possible under Burns to eviscerate a statute through the adoption of a Court rule on the same matter.

Third, hopefully, the case can serve as an opportunity for the Judicial and Legislative Branches to work toward a mutually-based understanding of the scope of the 1984 constitutional amendment that, perhaps, could be reflected in an umbrella Court rule.

Update: Burns v. Boyden has recently been the subject of discussion before the Constitutional Revision Commission and the Judiciary Interim Committee. You can listen to these discussions on the Legislature's website at le.utah.gov.