The Utah Legislature’s move to call a special session and ask voters to change the state constitution to sidestep a Utah Supreme Court ruling that upset the Republican majority may just be the beginning.
Citing growing “frustration” among conservatives that Utah’s judges are “disconnected” from Utahns, Utah House Speaker Mike Schultz, R-Hooper, told Utah News Dispatch last week more legislative action could be forthcoming to bring reforms to Utah’s judicial branch.
Legislative proposals that could surface as soon as the Utah Legislature’s next general session in January may include changing how Utah’s judges are sent to the bench, FOX 13 first reported. Currently, Utah’s judges are appointed by the governor and confirmed by the Senate, but Schultz said some members of the House want to explore making Utah’s judges elected by Utah voters.
“Is that something we should do here in the state of Utah? I’m not saying that it is. But the conversation’s coming,” he said. “The conversation’s going to happen.”
Schultz acknowledged Utah voters already have the ability to weigh in on Utah’s judges through retention elections, but he said oftentimes voters don’t know enough about those judges to make an educated decision on whether they should keep their jobs or not. He said legislation could also seek more “transparency around retention,” as well as consider term limits for Utah Supreme Court justices.
“Everything’s on the table right now,” Schultz said. “Moving the judiciary closer to the people is a trend that’s happening nationwide. And, you know, it’s starting to percolate here in Utah.”
The 2025 general legislative session is likely to “kick off a discussion,” the speaker said, but he added any changes could “take a couple years.”
“We don’t want to rush into any type of decision,” Schultz said. “We want to do what’s right. We want to go through a good process. We want the public to be involved in that process, and we’ll see what that looks like.”
Why are Utah lawmakers frustrated with the Utah Supreme Court?
A unanimous Utah Supreme Court decision last month handed a major win to anti-gerrymandering groups when it remanded that lawsuit over Utah’s redistricting process back to district court. All five of Utah’s justices ruling that the district court “erred” when it dismissed the League of Women Voters’ claim that the Utah Legislature violated the Utah Constitution in 2021 by repealing and replacing Better Boundaries’ voter-approved initiative.
That unanimous opinion affirmed that while the Legislature can alter the implementation of ballot initiatives seeking government reform, it can’t fundamentally undermine them — an interpretation of the Utah Constitution that clashed with Utah lawmakers’ long standing belief that the constitution gave them ultimate authority to repeal or replace any type of ballot initiative.
The ruling upset Republicans — so much so that Utah’s GOP-controlled Legislature used its emergency powers to call itself into a special session to place a question before voters asking them to sidestep the court’s interpretation of the constitution, despite cries of a “power grab” from Democrats and anti-gerrymandering groups.
The proposed constitutional amendment that will now appear on the Nov. 5 ballot will ask voters whether to amend the Utah Constitution to make clear the Utah Legislature has the ultimate power to amend, enact, or repeal a law adopted by a ballot initiative, as well as ban “foreign individuals, entities or governments” from influencing an initiative or referendum.
While the special session showcased a high-profile clash between Republican lawmakers and the Utah Supreme Court, Schultz said that decision isn’t necessarily what spurred discussions over potential judicial reforms in Utah. He said those “frustrations” have been stirring for a while now, and not just in Utah.
“We go to conferences, they talk about what they’re doing in other states, they talk to other lawmakers and things like that,” Schultz said, though he added the Utah Supreme Court decision on ballot initiatives “certainly didn’t help.”
Another high-profile Utah Supreme Court ruling this summer also highlighted Republican’s frustrations with the court. On Aug. 1, the court upheld an injunction on the state’s 2020 near-total abortion ban that’s been on hold while a lawsuit from Planned Parenthood Association of Utah litigates its constitutionality.
That decision also drew outrage from many Republican lawmakers, and prompted the sponsor of the 2020 trigger law, Sen. Dan McCay, R-Riverton, to say he’d be asking legislative leaders for a special session to restrict Utah’s current 18-week abortion law down to six weeks while court battles over the trigger law continue to play out. Last week’s special session did not include that agenda item, and it’s not yet clear whether McCay’s call for a special session on abortion by the end of the year will be answered.
Another lawmaker, Rep. Jordan Teuscher, R-South Jordan, who co-sponsored the proposed constitutional amendment, issued statements earlier this month criticizing not only the Utah Supreme Court’s decision in the redistricting case, but also one saying he was “deeply appalled” by the court’s decision in the abortion lawsuit. In that statement, Teuscher deemed the Utah Supreme Court an “activist court stretching to reach its opinion.”
I am deeply appalled by the activist Utah Supreme Court's decision this morning in upholding the injunction continuing to allow for abortions in the state. This ruling stretches the bounds of judicial interpretation, disregarding the historical context and intent of our state’s… pic.twitter.com/u975VHCwD4
— Jordan Teuscher (@jordanteuscher) August 1, 2024
National trend of declining trust in courts
It’s true there has been a national trend of declining trust in the courts — along with other institutions. A 2023 national survey conducted for the National Center for State Courts said “for the past several years, we have tracked declining public public confidence in the courts, spurred by declining confidence in a wide range of American institutions generally and the U.S. Supreme Court in particular.”
Notably, the 2023 survey showed a “plateau or even a very small reversal of this trend on most of our key metrics.” However, an analysis of the survey also stated “only time will tell if 2023 represents a brief respite or a true turning point in public attitudes toward the courts.”
In his 2024 State of the Judiciary speech to lawmakers in January, Utah Supreme Court Chief Justice Matthew Durrant urged the importance of maintaining Utah’s “judicial independence” and warned against a system of elected judges. He said “many states have departed from the vision of the founders in how they have structured their own governments, especially with respect to their judiciaries.”
“These states have contested elections for judgeships, some partisan, some nonpartisan, and in those elections, we’ve seen candidates raising more and more money,” Durrant said, which he warned can draw “special interest groups” and build a system that “creates a perception of bias. It undermines trust in the courts.”
“So how did we get here in our country? Well, it’s a bit complicated,” Durrant continued. He said historically state supreme justices throughout the country were appointed and given life tenure, until President Andrew Jackson “was swept into power in 1829 on a wave of populism, and he advocated for elected judges.”
“Over time many became dissatisfied with this approach,” Durrant said. “People were concerned that state judiciaries had become too politicized and needed to be restored to their former dignity and impartiality. As a result, there were a number of reform movements nationally, and we in Utah were the beneficiary of one of those movements.”
Utah is “very, very fortunate,” Durrant continued, that it has a constitution that “mandates that judicial selection be nonpartisan. And our selection process is as thorough and rigorous as any in the country.”
“It is one that, when it operates as it should, helps ensure that judges will be selected not based on how much money they can raise or how well they can campaign, but on whether they’ve developed a reputation for integrity, intellectual strength, hard work, and fairness,” Durrant said. “That system has given us a truly extraordinary judiciary, one that is widely viewed as the best or one of the best in the country.”
Despite Durrant’s comments that Utah has been “fortunate” to maintain judicial independence, efforts to transition to elected judges appear to be brewing. It’s far too early to say what bills may surface during the Utah Legislature’s 2025 general session, but Schultz said “the conversation’s coming.”
“We’ll see what happens.”
Is the Senate on board?
In a media scrum with reporters after Wednesday’s special session, two Senate legislative leaders left the door open to discussions around judicial reform in Utah.
Senate President Stuart Adams, R-Layton, and Senate Majority Whip Kirk Cullimore, R-Sandy, said they understand why lawmakers would be frustrated, but they didn’t say definitively whether they’d support a proposal to make Utah’s judges elected.
Adams said given the current process involves the governor’s appointment and confirmation from the Senate, “I can kind of see how the House feels left out.”
“No disrespect to the House, they don’t do advice and consent, and we have judges making decisions, I can see why the House would have questions as to what the process is like and whether the process is fair,” Adams said.
Cullimore said there does appear to be “some frustration, particularly among House members about judicial accountability to the people.”
“It’s the branch of government most removed, and if there’s some appropriate public pressure on the judicial branch, then maybe we look at some of those options,” Cullimore.
Teuscher told reporters Wednesday he’s spoken with the House speaker about frustration with Utah’s judicial system, and “I think he strongly believes that all political power is inherent to the people.”
“So all branches of government should be accountable to the voters, and that there is a little bit of a disconnect right now between what the general populace thinks and what the judiciary might think,” Teuscher said. “And especially when the judiciary starts getting into that policy making role, then they need even more accountability.”
Tuescher said lawmakers are “looking at all options to ensure that judges are accountable to the people.”
When asked how making judges elected officials would prevent them from legislating from the bench, Tuescher told reporters, “there’s nothing preventing legislating from the bench today.”
Pressed on whether he agreed with the House Speaker’s perspective, Adams hedged and told reporters “right now I’m focused on this current session.”
