Thomas Lee retires from Utah's Supreme Court, but still has big plans

SALT LAKE CITY — Thomas Lee has always kept himself very busy.

When he left a law firm in 1997 to work as a professor at Brigham Young University, he told his wife he would have more free time.

"She kind of smiled and winked at me and said, 'That sounds great,' and I could tell she had something in mind," recalled Lee, who retired Thursday as associate chief justice on the Utah Supreme Court.

"I said, 'Why do you have that look on your face?' And she said, 'Well, I don't really believe you.'"

Lee said his wife, Kim, was right. He continued practicing law on the side and stayed just as busy as he had ever been. During his time on the Utah Supreme Court, he continued teaching classes on the side at Harvard, Chicago and BYU law schools.

"I guess I just like to be busy," he said. "I love the law. I'm just really passionate about the law and how important it is."

And when he recently decided to leave the Utah Supreme Court and start not one, but two private firms in addition to continuing to teach university classes, Lee said he didn't even try to tell his wife that he would be less busy.

Kim Lee said her husband is always very capable no matter what he does, and this next step in his life will be an opportunity to combine a lot of his many experiences and talents. It's a step that she and her family are excited about, but none more than Thomas Lee.

Utah Supreme Court

Lee met Chief Justice Matthew Durrant before he entered law school while working a summer job at the firm where Durrant worked. Lee said people he met through that experience, including Durrant, helped him decide that he wanted to spend his career in Utah.

Durrant said Lee was always very respectful of other opinions while on the court, which is an important trait.

"He makes the effort to really ensure that he understands the opposing view. So … you always feel you're heard, even if ultimately you might disagree on the issue," Durrant said.

He said Lee improved every opinion he participated in, whether he was the author of the opinion or whether he was carefully reviewing and adding to what someone else wrote.

"He's an extremely hard worker, and really a brilliant scholar and a jurist," the chief justice said.

He also called Lee a wonderful colleague.

Lee said he didn't realize when joining the high court as a judge how important it is for the other justices who else is appointed because of how closely you work together.

"We are a collegial body and everything we do is done by majority vote — and not just majority vote, but if someone disagrees with you, they're probably going to write about it in a published opinion. ... It can cause a lot of work and a lot of stress and a lot of anxiety if the court isn't functioning well," Lee said.

In a collegial body like the Utah Supreme Court, he said dissenting and differing views need to be welcomed. And Lee believes that during his time on the bench, the court fulfilled that goal.

"I think we're good at listening to each other. When we decide our cases, it's in a conference where it's just the five of us in a room and it's a real debate. And sometimes it'll go on for hours," he said.

Kim Lee said she knew her husband would be a good Supreme Court justice because he is detail-oriented, and cares about getting things right.

"He works harder than anybody I know. I think he works really hard because he cares a lot about making sure … if his name is on something, it's going to reflect, you know, the research he's done and that it's done right," she said.

Utah justice system

Lee, 57, sees many ways that the state's justice program is excelling but said he also sees room for improvement, which is part of the reason he is starting two firms as he retires from the Utah Supreme Court.

One of his firms will specialize in appellate law, bringing cases before appellate courts both in Utah and nationally. He said there are some great appellate lawyers in Utah, but there are not many firms with that specialty.

"It makes a big difference to have an appellate specialist in a really important cutting edge case that comes up on appeal," he said.

Lee said he will have a partner in that firm, John Nielsen, who argued dozens of cases before him while he was on the Utah Supreme Court. Lee said he was impressed with Nielsen's briefs and presentations and even said Nielsen was the best lawyer to appear before the high court while Lee was on the bench. The firm will be based in Utah, but will also have a national reach.

Lee believes one significant way Utah's justice system can improve is by helping more people have access to the system — something he said the courts have been working on and making progress in, including giving paralegals opportunities to handle some legal issues themselves in a specific program. Lee said it isn't just the lower class, but often the middle class that can be priced out of the justice system.

He said Utah's court system is a leader in this area, and has created an innovation office dedicated to working on ways to make legal help more accessible.

"I think we're making some progress there. I think there's a lot of work to do," Lee said.

Corpus linguistics? What's that?

Lee said many questions in the law depend on how the public would understand a word or a phrase, and much of what a judge does is resolve ambiguity in language, whether that is Utah code or a contract.

"We take an oath to be objective, to be neutral, and we have to show our math when we make our decisions," he said.

He said judges will often cite the dictionary, but in some cases the dictionary can have multiple contradictory meanings. For example, Utah code says it is a crime to "discharge" a firearm in certain circumstances, and in one case it was unclear if discharge meant taking one shot or unloading an entire magazine.

While Lee was on the Utah Supreme Court, he had a law clerk who had a degree in linguistics and kept talking about corpus linguistics. To solve this issue, they looked at corpus linguistics, or how the word is being used by the population, which showed that when people use the word discharge when referring to a gun, it almost always means one shot.

Lee said, initially, other members of the high court were not very welcoming of this new process of thought and even mentioned in a brief that they thought it was going outside of their responsibility as a court and doing "fact-finding," which is the responsibility of lawyers. But Lee argued it was another way of interpreting the law, which is their responsibility.

"Right at first, my colleagues not only didn't join my opinion, they added some things to their opinion to criticize what I was doing and to suggest that maybe it was even judicially unethical to do what I was doing," Lee recalled. "Now all five of us are on board with using these tools."

Durrant said that as they learned more about it, the judges are more comfortable using corpus linguistics as a method to interpret the law. He said it can often show more about the intended meaning of a law than a dictionary.

Not just the courts in Utah, but courts from around the country are using corpus linguistics in decisions, including Judge Kathryn Kimball Mizelle who used it when striking down a mask mandate in the Middle District of Florida based on the corpus linguistics of the word sanitation. Lee said even U.S. Supreme Court justices have asked about corpus linguistics as a possible way to resolve a case.

"It's very exciting to me. It's one of the reasons why I'm motivated to do this instead of to join a big law firm," Lee said.

He said he has confidence that this will develop even further.

Lee said his second new firm will specialize in linguistics and help consult lawyers throughout the country about linguistics. Members of the firm will also be available to testify in court when asked about linguistics debates in cases. Lee's partner, Jesse Egbert, currently works as a linguistics professor at Northern Arizona University, and the two have worked together on presentations for linguistics conferences.

Family, law and football

Kim Lee said that as their children got older, they would talk about some of her husband's cases and his role and it had a positive effect on the family, both because of what they learned and through the connections he made.

She said her husband would hold mock courts at their children's schools, or invite classes or Scouting groups to the court to talk about the judicial system.

He also has been a mentor for many law clerks, and Kim Lee said those two or three law clerks from each of the 12 years he was on the Utah Supreme Court have become part of their family.

"Those relationships stay, and I think that's one of the neatest parts of the job," she said.

Lee said the move away from the high court is primarily financial and will help him pay for his children to get through college. He said he is grateful for his salary and benefits from his time on the court, but lawyers working for the government usually take pay cuts.

Two of the Lees' children have decided to seek law degrees. And while Thomas Lee said he has loved his time working in law, he tries to present an accurate picture of the experience to his children to make sure they are aware of the pressures and stresses involved in the career.

Ben Lee graduated this year from Harvard Law School and begins a clerkship on the District of Columbia Circuit this fall. He said his father has been an example for him, and he respects how his dad cares about his jobs and how he performs them.

"I think he really cares about what is right, and what is true. And that's what drives how he decides every opinion, how he writes every opinion. He's not swayed by, you know, 'How is this going to make me look?' or things like that. He cares about his oath that he took to the U.S. Constitution and to the Utah Constitution. And I think that is what everyone would hope for in a judge — someone who is committed to the integrity of the law," Ben Lee said.

Thomas Lee said he is much more comfortable being in a judicial position than being a politician like his brother, Utah Sen. Mike Lee.

"There's only one brother in the Lee family, Rex Lee's sons, that was ever going to be a politician and it was not Tom — and I say that out of great respect for Mike. He's so good with people. He's so comfortable being in the public eye, speaking publicly about … what he thinks. I'm much more comfortable in a conference room with four other people," Thomas Lee said.

Rex Lee served as U.S. solicitor general in the 1980s, was the founding dean of BYU's law school, and served as BYU's president from 1989-1995.

Although his brother is more outspoken on political issues than he is, Thomas Lee said the sisters in the family make both him and his brother "look like shrinking violets," and in-laws will sometimes walk away during family conversations because of how loud it gets.

"It's a lot of fun, actually. We sometimes disagree, and we always have fun together and always have kind of raucous discussions about whatever," Lee said.

He said since his brother is a senator, they more often have political conversations, but the conversations about BYU football or their hobbies can get pretty loud as well.

Related topics