‘A broad attack': Utah's judiciary fights bills threatening its independence

Yahoo

27-02-2025

Chris Peterson, a law professor, speaks during a press conference defending judicial independence at the Utah Capitol in Salt Lake City on Feb. 26, 2025. (Katie McKellar / Utah News Dispatch)
Tensions between Republican lawmakers and the Utah Supreme Court boiled over this week in the public arena — showcasing not just a frustration with the court's rulings, but also damaged relationships.
Additionally, Utah's legal community has come out in force against a flurry of bills aimed at exerting legislative control over Utah's judicial branch of government. More than 900 attorneys signed on to a letter issued to the Utah Legislature on Tuesday, calling on lawmakers to reject all the bills legal professionals say are threatening to inject legislative influence over the Utah judicial branch of government.
The developments this week come as Utah lawmakers have waged what even Utah Supreme Court Chief Justice Matthew Durrant described during a Judicial Council meeting on Monday as a 'broad attack on the independence of the judiciary.'
'Revenge streak': Utah Bar opposes flurry of bills flexing legislative influence on judiciary
Utah's Republican legislative leaders say the bills are not meant to be an 'attack' on the judiciary, but rather an effort to increase 'transparency' and 'accountability' in a branch of government that they worry has become disconnected from Utahns. Comments from lawmakers in recent committee meetings also indicate some lawmakers are frustrated with the Utah Supreme Court's 'productivity.'
However, a leader of Utah State Bar has said the issue boils down to a 'revenge streak,' after the Utah Supreme Court issued two opinions that angered Utah's Republican lawmakers — one that sided with plaintiffs in an anti-gerrymandering lawsuit, and one that upheld an injunction blocking the enforcement of Utah's near-total abortion ban.
And on Monday, Utah Supreme Court Justice Paige Petersen said it's 'obviously retribution.'
At least eight bills have caught the ire of Utah attorneys — all opposed by the Utah State Bar — that in various ways 'threaten to attack, manipulate, retaliate, and control the Utah judiciary, which will harm Utah citizens on both sides of the aisle,' the letter from the attorneys says.
'We cannot stand idly by and allow democracy to be so weakened,' the letter adds in bold.
A bipartisan group of Utah attorneys and other legal professionals, including some who signed onto that letter, held a news conference on the steps of the Utah Capitol on Wednesday to urge lawmakers to reject the bills and to call on Cox to veto any that hit his desk.
'As a society, all across the country right now, this trend of attacking our independent judiciary is not limited to Utah alone,' said one of the speakers, Chris Peterson, a University of Utah law professor. 'It's part of a trend of disinformation, conspiracy theories, private vendettas, tribalism, and even corruption that seems to be overtaking some of the most important institutions in our society.'
The frustration has crossed party lines. A Republican legislator who hasn't shied away from at times opposing bills sponsored by his GOP colleagues in the Senate, Sen. Daniel Thatcher, R-West Valley City, stood next to reporters and tossed out a question during Wednesday's news conference, asking if Utah's judiciary had taken such a strong stance on legislation in the past.
'I don't think I've ever seen the judiciary branch weigh in on legislation,' Thatcher said. 'Can anybody give me a time when the judiciary has stepped out like this and said the Legislature is out of balance?'
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'Senator, I think it's unprecedented,' said Kent Davis, an attorney and a Salt Lake County Republican Party delegate.
It's a remarkable and defining issue of the 2025 Utah Legislature, which has rarely seen such an outpouring of opposition not just from Utah's legal professionals, but also such forceful statements from members of the Utah Supreme Court — which typically remains neutral on legislation.
Of the eight bills opposed by the Bar, Utah's judiciary has taken a position of opposition on two of the most concerning bills — both of which are sponsored by influential Republican legislative leaders.
They include:
HB512, sponsored by House Majority Whip Karianne Lisonbee, R-Clearfield. This bill would create a new body — called the Joint Legislative Committee on Judicial Performance, made up of appointed lawmakers — that would have the power to evaluate hand-picked judges based on no set standards in public hearings. It could also vote to recommend — or not recommend — a judge for retention, and that recommendation would be printed directly on the ballot next to the judge's name.
SB296, sponsored by Senate Majority Whip Chris Wilson, R-Logan, which would change how Utah's Supreme Court chief justice gets picked. Rather than the Supreme Court justices electing their chief justice among themselves, the bill would give that responsibility to the governor, subject to a confirmation hearing in the Senate. Additionally, the bill would require the chief justice to be reappointed and confirmed every four years.
During a Judicial Council meeting on Monday, members of the Utah Supreme Court aired their frustrations with Utah lawmakers — a rare move for justices sitting on Utah's top court — as they debated how to deal with the slate of bills targeting the judiciary.
Justice Paige Petersen had scathing words for one bill in particular, SB296, which would change how the Utah Supreme Court chief justice is picked.
'My preference is kill this silly bill. There's absolutely no reason for (the governor and lawmakers) to be meddling in how we pick the chief justice,' Petersen said during Monday's Judicial Council meeting, urging her colleagues to take a public position to oppose the bill.
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It's unusual for the judiciary to take positions on legislation — and it's even more rare for justices to share such strong words about proposed legislation. But Petersen said it's 'clearly part of a suite of bills that are trying to take aim at judicial independence … and put it under legislative control.'
An audibly frustrated Petersen encouraged the council to take a stronger position of opposition against the Legislature's actions this year rather than staying neutral, even as delicate negotiations play out. This year, the judiciary should do more to stand up for itself, she said.
'It seems like our approach is, can you please just punch us in the stomach instead of punching us in the face and (we'll) be happy and neutral about it,' Petersen said.
Petersen also pointed to other bills proposed to raise the vote threshold for judicial retention elections to 67% and one that a member of House leadership is exploring to expand the number of Utah Supreme Court justices.
She said the Utah State Bar — which has strongly opposed at least eight bills this year and has issued multiple news releases publicly characterizing them as threats to the judiciary's independence — has been 'out there saying this is unacceptable, and we're saying, 'Oh, we're taking you in good faith.''
Lawmakers aren't 'just trying to solve problems,' Petersen said.
'No, it's retribution. It's obviously retribution, and I'm not sure why we're not saying that,' she said.
Durrant, though he took a more tempered tone, said Petersen 'makes excellent points.' He applauded 'how strategically' the Judicial Council's legislative liaison committee had been approaching discussions with lawmakers, and that the 'natural inclination' is to take positions on bills individually. However, Durrant agreed that lawmakers appeared to be waging a broader attack.
'I view it as a broad attack on the independence of the judiciary,' he said.
Durrant acknowledged that Wilson's bill likely wouldn't affect him as the current chief justice, but he said it would likely impact future members of the Utah Supreme Court. And he pushed back on the characterization that it would follow the same model as the U.S. Supreme Court, which doesn't require reconfirmation hearings every four years.
'That element to it is an attempt to influence and exert legislative control over the chief justice,' Durrant said.
When asked about Petersen and Durrant's comments about lawmakers' actions this session, Senate President Stuart Adams, R-Layton, told reporters on Tuesday, 'I see it differently.'
'I think we're trying to make good policy up here,' he said.
Adams also told reporters Wednesday that as the bills make their way through the legislative process, they'll be refined, and it remains to be seen which bills survive the session.
'We're trying to knock the rough edges off, get all the input,' Adams said, adding that 'we welcome' input from the public, the judiciary and other attorneys.
Adams, however, also spoke favorably of Wilson's bill, arguing 'there ought to be a little bit of a check on the judge every four years.' While Adams said he's not supportive of making judges elected, he said he thinks Wilson's bill hits a middle ground 'that makes sense.'
In a Senate Judiciary Law Enforcement and Criminal Justice Committee hearing Tuesday night, Wilson changed his bill — which would have also required a new appointment process for presiding judges for the Court of Appeals — to only apply to the Utah Supreme Court chief justice.
Wilson argued his bill would mirror the federal model, noting that when a vacancy occurs in the U.S. Supreme Court, the president is responsible for nominating a replacement, then the Senate confirms or rejects the nomination.
'Involving the executive and legislative branches ensures that the system of checks and balances is utilized as our Founding Fathers intended,' Wilson said. 'The process helps preserve the fairness and impartiality of the judiciary, preventing any one branch from gaining undue influence.'
Wilson said his bill would also allow Utahns to participate in Senate confirmation hearings, 'offering a platform for citizens to voice their opinions on who will be the chief justice and ask questions about the nominee's record, promoting trust in the judicial system.'
'Ultimately, this balance between executive authority and legislative oversight ensures the citizens play a direct role in shaping the state's judiciary,' Wilson said.
Michael Drexel, assistant state court administrator at the Administrative Office of the Courts, told lawmakers the judiciary is opposed to SB269, but he added 'I want to be really careful about why that is.'
The Utah Constitution does give the Legislature the ability to choose how the chief justice is selected, Drexel acknowledged. But just because lawmakers can, that doesn't mean they should, he said.
'Our opposition is based on our concern that this is an unwise use of that ability to craft the chief justice selection process in this way,' Drexel said. 'The justices of the Supreme Court know best who can lead them, who can administer and attend to those functions.'
The chief justice serves an important role within the judicial branch as the presiding council of the judicial council, which administers the judiciary, he said. The chief justice delivers the State of the Judiciary speech each year and acts as the 'voice of the judiciary on legislative matters.'
'As a result, what we end up with is an opportunity, I think, for the political pressure to be exerted on this actor who is so pivotal at the face of the judiciary,' Drexel said. 'We're concerned that that opportunity, that those pressures may end up negatively impacting the ability of the judiciary to function as an independent third branch of government.'
Drexel said what's 'most objectionable' is what would make Wilson's bill different from the federal model, by requiring the chief justice to be subject to reappointment every four years.
'I can't think of another instance where an elected official is called before another branch of government in this way,' Drexel said. 'Pressure could be exerted on them to perform in a certain way. That buffer exists in the federal system for the very reason we don't want Congress putting pressure on the chief justice of the Supreme Court of the United States.'
Drexel urged lawmakers to either continue to allow the chief justice to be selected by his or her peers, or to at least take out the provision that would require reappointment every four years.
When pressed by reporters on whether Wilson would be willing to remove that provision of his bill, the senator said, 'I don't think so,' calling it 'important' because it allows 'our citizens to be able to weigh in.'
Also during Tuesday's Senate committee hearing, debate over Wilson's bill illustrated that frustrations between Utah lawmakers and the Utah Supreme Court also boil down to strained relationships.
Sen. Brady Brammer, R-Pleasant Grove — a senator who is running multiple bills that are opposed by the Utah State Bar and listed in Wednesday's letter from 900 attorneys — was quick to grill Drexel about Petersen's comment to 'kill this silly bill.'
'Is it the position of the Judicial Council that this is a 'silly bill'?' Brammer asked Drexel.
'No,' Drexel answered.
'Is that just the position of one of the justices of our Supreme Court?' Brammer pressed.
'Those words were said,' Drexel said.
Brammer then went on to question whether the Legislature should be a check on the judiciary, to which Drexel said it already is — by controlling its purse strings.
Then Brammer criticized the Utah Supreme Court, accusing it of being 'woefully unproductive.'
'In 2023, they were the least productive Supreme Court in America, issuing only 25 opinions. In 2022, they only issued 41,' Brammer said. Last year, the court issued 46 opinions, and this year so far the court has issued one opinion.
In 2019, the year before the COVID-19 pandemic, the Utah Supreme Court issued 70 opinions.
'We have some serious concerns as to what they're doing, especially when they come to ask us and ask for money for additional court of appeals judges,' Brammer said. 'So it seems to us that rather than take caseload from the court of appeals, they've come to the Legislature and said, 'We want you to fund our lack of productivity.''
In response to Brammer's allegations, Tania Mashburn, director of communications for the Utah State Courts, issued a lengthy statement on Wednesday saying 'comparing volumes of published opinions between states is not an apples-to-apples comparison.'
'Different courts have different structure and publish different things,' she said, pointing to Wyoming, which has no intermediate appellate court like Utah does, so the Wyoming Supreme Court's opinions often are shorter decisions in less complex cases.
Brammer asked Drexel whether the Legislature has any role to play 'in saying we need some leadership with regards to productivity, assignment of cases, taking of cases, things like that?'
Drexel said 'of course the Legislature can play a role in that,' but he argued there are other ways to address those concerns, 'including having sit-down conversations and discussions about it.'
Brammer said he has asked the judiciary to 'produce data' and discuss the issue, but 'they've still not recognized this as a problem. They believe that everything they're doing is just fine. They don't view this as a problem.'
Drexel pushed back on Brammer, adding that 'we did provide data' and had attended a previous committee hearing to discuss the data, but never got an opportunity to speak to the issue. 'Now I understand it took a long time, but we did a heavy lift trying to put together the data so it could be comprehensive and dependable. And so I do take a little bit of umbrage at being criticized publicly for the efforts that we went through to be responsive.'
Brammer said the issue also comes down to 'a good working relationship,' noting that while the Utah State Bar opposes many of his bills, they still have open lines of communication.
'Right now, the relationship between the Supreme Court and the Legislature is pretty frayed, pretty broken, and frankly you solve those things by more contact, not less,' Brammer said.
'I don't understand why we should treat the Supreme Court differently on our confirmations and why it is such an offense to come back and talk to the Legislature and be accountable to some degree as to the performance of the judicial branch?' Brammer added. 'Why (is that) such an offensive thing, when we do it for every single executive appointment in the state?'
Wilson's bill passed out of the Senate Judiciary Law Enforcement and Criminal Justice Committee on a 4-2 vote, with Democrats voting against.
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