With frustrated Republican lawmakers considering ways to rein in a judiciary that has dealt them a string of defeats in recent years, Utah Supreme Court Chief Justice Matthew Durrant made his case to the Legislature that maintaining judicial independence is important to ensure a balance of powers between the two branches of government.
“We all swear to support, obey and defend the Constitution, but judges must be free to abide by that oath, to decide cases without fear of adverse personal consequences,” Durrant told a joint session of House and Senate members during his State of the Judiciary address Tuesday. “They must be free to make decisions driven by the law and the facts and not based on who the litigants are and how they might react to those decisions.”
“Some have suggested various changes to our judiciary. Should you consider them, I urge you to carefully assess their long-term implications,” he said.
(Trent Nelson | The Salt Lake Tribune) Utah Supreme Court Chief Justice Matthew B. Durrant speaks at the Utah Capitol in Salt Lake City on Tuesday, Jan. 21, 2025.
Last summer, the Utah Supreme Court unanimously ruled that the Legislature overstepped when it gutted a citizen initiative aimed at preventing gerrymandering of political districts. The justices held that the public has a constitutional right to the initiative process that is essentially meaningless if legislators can simply reverse any initiative that passes.
House Speaker Mike Schultz and Senate President Stuart Adams called that decision “one of the worst outcomes we’ve ever seen from the Utah Supreme Court,” and said if left in place, could turn Utah into California, where ballot initiatives run frequently.
When Republican legislators tried to amend the Utah Constitution to overturn that decision, the Supreme Court again swatted that effort aside, ruling that the language put before voters was so misleading that voters could be tricked into believing they were strengthening their initiative rights when, in fact, they would be weakening them.
Schultz and Adams called that ruling “unprecedented and troubling” and was taking away voters’ ability to decide issues for themselves.
Previously, the courts had blocked bills passed by the Legislature that would ban almost all abortions in the state and prohibit transgender girls from playing on the girls’ high school teams.
“There will certainly be times when you believe we’ve gotten things wrong, and you, of course, have every right to criticize our decisions,” Durrant told the lawmakers. “But ultimately, the people of Utah will judge the integrity of both our institutions and our commitment to the rule of law, not by what we do and say when we agree, but by the respect we show each other when we disagree.”
The chief justice received a tepid response to his remarks, with many of the Republican lawmakers scowling and refusing to applaud at the end of his address.
(Bethany Baker | The Salt Lake Tribune) Chief Justice Matthew Durrant, during the inauguration ceremony for Gov. Spencer Cox in Salt Lake City on Wednesday, Jan. 8, 2025.
Senate Majority Leader Kirk Cullimore, R-Cottonwood Heights, said afterward that, even though several months have passed since the court’s rulings, GOP lawmakers are still discussing changes to how the judiciary functions.
“Time heals all wounds,” he said, “but I think there’s still a fair amount of consternation.”
Cullimore said he agrees with Durrant that the branches of government need to show mutual respect, but he remains concerned that one branch — the judiciary — does not have the same public accountability as the others.
Some, including Schultz, have floated the idea of having the public elect judges. Twenty states elect lower court judges in nonpartisan elections, according to the Brennan Center for Justice, and nine have partisan elections for their trial court judges.
“It has been tossed around, but that would require a constitutional change, and it can only be on the ballot every two years,” Cullimore said, meaning a constitutional amendment couldn’t go before voters until 2026. “So I don’t expect to see a bill like that this year.”
Gov. Spencer Cox opposes electing judges — although the governor cannot veto constitutional amendments proposed by the Legislature.
“I cannot support the election of judges. I will never support the election of judges,” Cox said last month. “I think the most corrupt systems on earth involve the election of judges, and I think that would be a huge mistake.”
Currently, judges are required to appear on the ballot in retention elections every six years, but Cox said the Senate commissioned a poll that showed voters overwhelmingly say they don’t feel like they have the information they need to make an informed choice when it comes to judicial retention.
One of the options under consideration is letting the Legislature gather feedback and concerns from attorneys or parties in court cases that could be shared with voters ahead of a retention election.
Cox said in an interview Tuesday he could potentially support a system where the Legislature is “giving more information to people about whether they think the judge is performing well, and then voters in a retention election could take that information in.”
There had been some discussion of letting the Legislature vote to block a judge from being on the ballot for retention, Culliomore said, but that would be unconstitutional.
He said other lawmakers are looking at possibly imposing term limits or age limits on judges, but doesn’t support that alteration.
Cox said his main goal is preserving the quality of Utah’s court system.
“I think we have the best judiciary in the country,” he said, “and I want to make sure that any changes we make don’t upset that great balance.”
