Republican legislators are looking at potentially adding justices to the Utah Supreme Court and making it harder for all judges to keep their jobs by raising the bar in retention elections.
The bill comes as the judiciary is in the crosshairs of the Republican-dominated Legislature after courts have repeatedly blocked significant pieces of the agenda — halting a near-total ban on abortions, blocking a ban on transgender girls competing in high school sports, restricting the Legislature’s power to undo citizen-backed ballot initiatives and stopping lawmakers from amending the Constitution to assert the power to repeal initiatives.
House Majority Leader Jefferson Moss, R-Saratoga Springs, opened a bill file Wednesday that could lead to expanding the Utah Supreme Court from its current five justices.
“Over the past decade, we have seen growing caseloads, delays and evolving legal complexities in Utah’s highest court,” Moss said. “The Legislature has the ability to adjust the court’s size in response to these growing demands. As such, I’ve opened a bill file to explore the potential of adjusting the number of justices on the Utah Supreme Court.”
Former Utah Supreme Court Justice Christine Durham said expanding the court could have the opposite effect Moss is looking to achieve.
“Given the way opinions are prepared and decisions made, the larger the court, the slower and the more complicated the process,” she said. “Also, expenses would increase to cover staff, law clerks, chambers, etc. Is the system broken or is the goal to try to add politics to the court?”
Utah’s Constitution says that there must be “at least five” justices on the Utah Supreme Court, but otherwise leaves it to the Legislature to set the number.
When former President Joe Biden floated the idea of expanding the court to 13 justices, Utah’s U.S. Sen. Mike Lee was particularly critical, saying “packing” the court would lead to retaliatory packing whenever control of Congress and the White House changed hands, politicize the court, jeopardize the independence of the judiciary and lead to “lawlessness.”
“Packing the Supreme Court would end the constitutional republic as we know it,” Lee posted on social media. He even wrote a book about it entitled “Saving Nine.”
Meanwhile, HB451, sponsored by Rep. Jason Kyle, R-Huntsville, would require judges to get 66.7% of the vote in retention elections held every six years in order to keep their spot on the bench.
“I just think the retention process isn’t very effective,” Kyle said. “We’ve only had two people voted out … and we had a couple people who survived with 55-56% and I think we’ve just got to think about whether we actually want the 55% judge on the bench. If you go into the courtroom, is that the person you want?”
“I feel like this just raises the bar so we can have the best people on the bench,” he said.
Senate Majority Leader Kirk Cullimore, R-Cottonwood Heights, asked about Kyle’s supermajority bill, said he hadn’t seen it but questioned if it would be constitutional to impose that kind of requirement on the judiciary, although he said some states do.
Judges are almost never bounced from the bench in retention elections.
In 2002, Judge David Young was voted out after twice being reprimanded by the Utah Supreme Court and criticized as being biased against women and gays and lenient on sex offenders and drunk drivers. Four years later, Judge Leslie Lewis lost her retention election amid bad publicity for knocking 10 years off the sentence of a sex offender and threatening to lock up reporters.
Some judges have also opted not to stand for retention after receiving bad ratings from Utah’s Judicial Performance Evaluation Commission.
At the start of the session, Chief Justice Matthew Durrant used his State of the Judiciary to urge the Legislature to be cautious if they seek to change the judicial branch, respecting its role as an independent branch of government.
“Judges must be free to … decide cases without fear of adverse personal consequences. 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,” Durrant said. “Some have suggested various changes to our judiciary. Should you consider them, I urge you to carefully assess their long-term implications.”
Sen. Brady Brammer, R-Pleasant Grove, is also sponsoring a pair of bills that would make it harder for groups — like Planned Parenthood and the League of Women Voters — to have standing to challenge laws passed by the Legislature in court and another that would allow a law to go into effect pending an appeal if a lower court determines it is likely unconstitutional.
