Days after Gov. Spencer Cox signed a bill into law creating a three-judge court to hear lawsuits against the government, the new “constitutional court” is being challenged as unconstitutional and placing the government above average citizens.
The suit is being brought by the same plaintiffs — the League of Women Voters, Mormon Women for Ethical Government and a group of voters — who challenged, and appear to have won, Utah’s redistricting fight.
And on Sunday, Attorney General Derek Brown filed motions to have four cases against the state moved to the new three-judge panel: the remaining issues in the redistricting lawsuit, another challenging Utah’s abortion ban, one accusing the state of failing to protect the Great Salt Lake, and one by a group of youth alleging the state’s reliance on fossil fuels is destroying the environment.
The plaintiffs in the redistricting case are fighting to not have their case taken away from 3rd District Judge Dianna Gibson and reassigned to the trio of judges. They argue that HB392, which established a three-judge panel to hear cases suing the government, creates an uneven playing field that favors the government over other parties.
Under the new law, plaintiffs in the cases referred to the new panel cannot contest the government’s request for it to be reassigned. And only the government can have a case moved to the panel.
“This violates the Utah Constitution in several ways,” the plaintiffs’ lawyers write in a new court filing.
They contend that the law essentially creates a special court where the government, if it chooses, could have its cases heard. That violates numerous constitutional provisions, they argue. Among them, assurances that laws will apply equally to all, that all parties are entitled to due process, and assurances that the courts are open equally to all parties.
“The judiciary is a co-equal and separate branch of government,” the plaintiffs argue, and the Legislature cannot, by statute, redefine the courts. “Nor does [the constitution] permit the Legislature to enact statutes that treat litigants unequally from others, privilege the government over others, or allow arbitrary government action.”
They are asking Gibson to enjoin the enforcement of HB392 and keep the remaining issues in the redistricting case in her court.
The plaintiffs in the redistricting case — the League of Women Voters and Mormon Women For Ethical Government — have prevailed in front of Gibson, who twice struck down the Republican Legislature’s map and instead chose a map submitted by the plaintiffs. Since Friday, both the Utah Supreme Court and a federal panel have rejected appeals from GOP lawmakers.
House Speaker Mike Schultz, R-Hooper, said the attempts by the plaintiffs in the redistricting case to block HB392 “shows weakness.”
“If you were confident in that ruling, then you wouldn’t be afraid to have three judges review it,” Schultz said.
Senate Majority Assistant Whip Mike McKell said lawmakers could adjust the law if there are equal access issues, but accused the lawyers in the redistricting case of “forum shopping” — or trying to ensure a judge they view as favorable hears the matter.
“To be really clear, do I think it’s unconstitutional? We do not. Not at all,” said McKell, who was the Senate sponsor of HB392. “Do I think the plaintiffs in that case are forum shopping? Absolutely, that’s what they’re doing. That’s what they’ve done. That’s why it’s important to have a constitutional court that’s fair, where there is a rotation. And I’m concerned by their actions.”
The bill, sponsored in the House by Rep. Matt MacPherson, R-West Valley City, initially envisioned a “constitutional court” consisting of three judges that would hear cases that argued that laws passed by the Legislature were unconstitutional.
That was abandoned because critics said it would allow the governor and Legislature — who nominate and confirm every judge and would be parties to every proceeding before the tribunal — to essentially choose their own referees.
Instead, the three-judge panel would be randomly assigned from sitting judges from across the state. The Judicial Council, which oversees the courts, would have until March 7 to come up with a system for assigning judges to the panel.
Cox signed the bill within hours of its passage.
In the 17 days between the time it was introduced and when it was signed, it was expanded to allow the three-judge panel to hear any civil case brought against a state government entity.
That could include a constitutional challenge to a state law, a public records case or a lawsuit brought because a state-owned snowplow crashed into a car.
It could only be assigned to the three-judge panel at the state’s requests and the opposing party in the lawsuit could not object. It applies to both future cases and, in the redistricting and abortion cases, those well into the litigation process.
The plaintiffs argue that they would be harmed “by the case being transferred to an unlawfully composed court” and by the delay that would come if it were transferred to judges who are unfamiliar with its history. They also contend they should have the same right as the opposing party — in this case the Legislature — to determine the composition of the court that hears the case.
Shireen Ghorbani, president and CEO of Planned Parenthood Association of Utah, the plaintiff challenging the state’s abortion ban, said it was “no surprise” the state wanted to move the case to the new panel.
“This is yet another example of how the supermajority of the Legislature and Governor Cox will change the rules whenever they fear that the laws they continue to pass — session after session — violate our constitutional rights,” she said, vowing to continue the fight against “ongoing government overreach.”
The new court is part of a package of bills promoted by Republican legislators targeting the courts, following a series of defeats at the hands of the judiciary.
Earlier in the session, lawmakers passed, and Cox signed, a bill adding two justices to the Supreme Court, a move critics said constituted court-packing. Last year, Republican lawmakers passed a resolution condemning the courts for judicial activism and stripped the Supreme Court justices of the ability to choose their chief justice, giving it to the governor.