Threats to the Judiciary: Another Legislative Power Surge.
“The statutory and constitutional rights of the people of Utah depend on an independent judiciary. Without it, those rights are threatened,” declared Utah State Court Administrator Ron Gordon in a November 7, 2024, Salt LakeTribune opinion piece.[1]
Utah’s judiciary is an independent, government branch created to apply and sometimes necessarily interpret statutory and constitutional rights. Its independent status, however, has been undermined in recent years as the state legislature has asserted political power over the other branches of government. This trend, materializing nationwide, has seen “politicians redoubling their efforts to assert political power over state judicial branches and ensure judges would not be an obstacle to their policy goals.”[2] And with these efforts, the rights of Utahns and the independence of our judicial branch are indeed threatened.
In a review of bills considered throughout the U.S. in 2023, the Brennan Center forJustice, a nonpartisan law and policy institute, found that “legislators in 29 states introduced at least 124 bills attacking the independence of courts.”[3] The last few years have seen several attempts by Utah legislators to weaken the independence and support of our state judiciary, including:
Changes to Judicial Nominating Commission
In the Utah Legislature’s 2023 General Session, Utah’s judicial selection process, long noted throughout the country as a model process because of its absence of political considerations and the quality of its judges, was substantially altered. Senate Bill 129 eliminated the explicit requirement for bipartisan representation on the judicial nominating commissions (appellate, district, and juvenile). Additionally, the Utah Chief Justice, representatives of the judiciary, and attorneys nominated by the Utah State Bar are no longer required commission members.
Changes to Rules of Civil Procedure on Injunctions
Legislative overreach was also evident with the 2023 passage of HJR 2. The joint resolution restricts the criteria used by state courts to grant preliminary injunctions and temporary restraining orders when laws are challenged by those affected by them. The timing and impact of HJR2 was seen as an effort by the 2023 Legislature to impede a Third District Court injunction on Utah’s abortion trigger law.
Right to Change Judges
Referred to as a “judge shopping” bill, HJR 8, which passed in 2024, allows litigants in a civil suit in larger Utah counties to disqualify a randomly assigned judge for no stated reason (“without cause”) and have a different judge assigned to the case. Previously, the standard for disqualification had been for “good cause,” namely a motion and evidence of a conflict of interest, demonstrable bias, or other good cause for a judge’s recusal.
Changes to the Criminal and Juvenile Justice Commission
With the 2024 passage of SB 200, membership of the Criminal and Juvenile Justice Commission shrank from 26 to 17 members by removing the Chief Justice of the Utah Supreme Court or designee, the Utah State Bar criminal defense and juvenile defense bar designees, the head of the Salt Lake Legal Defenders Association, the Salt Lake County District Attorney, the citizen representative, and mental health and civil rights designees, leaving the commission weighted more heavily toward state department/agency directors, corrections officials, and police and sheriffs’ associations.
Elimination of Judicial Rules Review Committee
House Bill 344, passed in 2024, disbanded the Legislature’s Judicial Rules Review Committee, and combined its role with that of the Administrative Rules Review Committee to form the Rules Review and General Oversight Committee. The Administrative Rules Committee’s role to review, evaluate, and make recommendations about existing or proposed agency rules now has been expanded to include court rules, although it cannot examine internal judicial policies, procedures, and practices. Nonetheless, the newly formed committee appears able to insert itself into the work of the judicial branch more than before.
Legislative Reaction to Supreme Court Decision: Amendment D Litigation
An additional area of concern is the 2024 Utah Legislature’s reaction to court decisions regarding ballot initiatives and efforts of the Legislature to devalue the rulings of the judiciary.
When a citizen’s initiative establishing an independent redistricting commission (Prop 4) passed in 2018, the 2020 Legislature reacted by, in essence, repealing the new law and passing SB 200, effectively dismantling the anti-gerrymandering principles of the initiative, and disregarding the people’s power to enact law. The action spurred a lawsuit and, eventually, a July 11, 2024, opinion by the Utah Supreme Court stating the legislature had overstepped its bounds.
Writing for a unanimous court, Justice Paige Peterson stated “Although the Legislature has authority to amend or repeal statutes, it is well settled that legislative action cannot unduly infringe or restrain the exercise of constitutional rights. Consequently, when Utahns exercise their right to reform the government through an initiative, this limits the Legislature’s authority to amend or repeal the initiative.”[4]
Legislative leaders were furious with the ruling. They balked at the opinion, saying the Utah Supreme Court’s ruling supports creation of “‘super laws’ that lawmakers can’t touch,”[5] yet the carefully crafted opinion clearly left room for the legislature to make technical amendments to improve initiatives and even to make substantive changes to those that do not fundamentally alter the structure of government.
“This does not mean that the Legislature cannot amend a government-reform initiative at all,” wrote Petersen. “Rather, legislative changes that facilitate or support the reform, or at least do not impair the reform enacted by the people, would not implicate the people’s rights under the Alter or Reform Clause [of the Utah Constitution]. Legislative changes that do impair the reforms enacted by the people could also survive a constitutional challenge, if the Legislature shows that they were narrowly tailored to advance a compelling government interest.”[6]
Legislative leaders responded to the opinion by calling the Legislature into an emergency session on August 21, 2024, which quickly passed a proposed constitutional amendment that would essentially overturn the court’s ruling and give themselves veto power over all citizen initiatives. The proposed constitutional amendment was placed on the 2024 ballot as Amendment D.
In an earlier, last-minute change to a 2024 General Session statute (SB 37), House Speaker Mike Schultz and Senate President Stuart Adams (“presiding officers”) were empowered to write ballot language for proposed constitutional amendments instead of the impartial Office of Legislative Research and General Counsel. Follow-up litigation questioning the accuracy of Amendment D’s ballot language resulted in the Utah Supreme Court voiding Amendment D, not only for misleading language but also for failure to meet the two-month publication requirement prior to the general election.[7]
What’s Next?
The question now is, how will the legislature respond to this year’s interactions with the courts? As a body that many (including opinion writers) have considered punitive and reactive, the Utah legislature – and its possible retaliation – are the subject of speculation from political observers and government watchdogs. Many observers question if some legislators understand the proper role of the judiciary and the proper role of the legislature. Will there be retribution in the form of changes to how judges are selected – perhaps even moving to judicial elections? Will there be term limits for judges? Will there be irresponsible attempts to impeach judges? Will there be another attempt at a constitutional amendment giving the legislature power to repeal or broadly amend any successful citizen initiative? Will there be changes made to laws regarding citizen initiatives, making criteria for passage even more difficult?
The Utah Citizens’ Counsel believes the Utah legislature has steadily worked to weaken not only the power of the people, but also the independence and power of the judiciary. Legislative actions are threatening the statutory and constitutional rights of the people of Utah and enabling the legislative branch to become too powerful, upsetting a proper balance that ensures one branch of government does not overpower another.
We encourage Utahns to keep careful watch over any such further actions the legislature may take during the 2025 session and push back (through contacts with the media, legislators, and colleagues), against an extension of the Legislature’s power surge.
Notes[1] Ron Gordon, “Voices: Judges are beholden to the Utah Constitution, not politics,” The Salt Lake Tribune, November 7,2024[2] “Legislative Assaults on State Courts in 2023,” Brennan Center for Justice, published January 9, 2024.[3] Ibid.[4] League of Women Voters of Utah, et al v. Utah State Legislature, et al, 2024 UT 21.[5] Robert Gehrke, “GOP lawmakers vote for power to amend, repeal ballot initiatives. Now Utahns get final say,” The Salt Lake Tribune, August 21, 2024.[6] League of Women Voters of Utah, et al v. Utah State Legislature, et al., 2024 UT 21[7] League of Women Voters v. Utah State Legislature, 2024 UT 40.