Utah Supreme Court Chief Justice Matthew Durrant said Monday that the Legislature is waging “a broad attack on the independence of the judiciary” with a suite of bills that would impose far more legislative influence on the courts.
Republican legislative leaders — following a series of legal setbacks from the courts in recent years — have introduced a suite of bills that would give lawmakers more influence on the judiciary.
Proposed legislation looks to raise the threshold for judicial retention elections to 67%, let a legislative committee recommend on the ballot which judges voters should or should not be retained, make the chief justice subject to appointment by the governor and confirmation by the Senate every four years and add either two or four justices to the Supreme Court.
Justice Paige Petersen, at a Utah Judicial Council meeting Monday, said adding justices could be compared to court-packing and encouraged the council which oversees Utah’s courts, to take a position opposing them rather than remaining neutral and hoping that legislators are willing to make them less problematic for the courts.
“It seems our approach is: Can you please just punch us in the stomach instead of punching us in the face and [we will] be happy and neutral about it,” Petersen said. “No. It’s retribution. It’s obviously retribution and I’m not sure why we’re not saying that.”
The council’s legislative liaison committee has already opposed the bill creation of the legislative committee. The full council closed its meeting before taking a position of its own, but Durrant shared Petersen’s concerns.
“The natural inclination is to take these [bills] one by one, but it is a broad attack — I view it as a broad attack — on the independence of the judiciary,” Durrant said. “It is an effort to exert more legislative control over the judiciary.”
Republican lawmakers are upset about a handful of rulings. In recent years the courts have stopped a near-total ban on abortion from taking effect, blocked a ban on transgender girls competing in high school sports, limited the Legislature’s power to undo citizen-passed ballot initiatives and stopped lawmakers from amending the Constitution to undo the initiative ruling.
It is unusual for the judicial council to take public positions on legislation or for the justices to speak publicly on legislative matters, particularly issues that raise constitutional issues that could end up before the courts.
“The status quo is not working”
One of the bills targeting the judiciary — HB512, sponsored by House Majority Whip Karianne Lisonbee, R-Clearfield, which would create a legislative committee to recommend whether or not judges be retained and place those recommendations on voters’ ballot — passed a House committee Monday.
Judges are already evaluated by the nonpartisan Judicial Performance Evaluation Committee, but Lisonbee said it is relying on the metrics set by judges and not giving voters enough useful information.
“The status quo is not working,” she told lawmakers during Monday’s House Judiciary Committee meeting. Adding the legislative committee would provide voters with additional information to help them decide which judges should be retained.
“Some will say this review committee created in this bill threatens an independent judiciary. But that is untrue,” she said. “To say that the courts are an ivory tower off to the side, that the Legislature should not interact with, is simply not accurate with the way our constitution is structured.”Thirteen people — attorneys, retired judges and other advocates — warned the bill would inject politics into the judicial retention process and could impact how judges might rule in high-profile cases.
Jordan Singer, a professor at the New England School of Law in Boston who has studied judicial performance evaluation processes for 20 years, said that “there is none finer than what the [committee] is doing in Utah now.”
Former Republican Rep. Lowry Snow urged the committee to “tap the brakes” on this bill and expressed concerns that there were no objective measurements for the legislative committee to measure a judge’s performance.
And Susan Olson, a professor emeritus at the University of Utah and member of the Utah Citizens Council, said the committee Lisonbee is proposing has the potential to inject partisan politics at an “unprecedented” scale.
One member of the public spoke in favor of the bill before the seven Republicans on the House committee voted to recommend passing the bill and sent it on to the full floor for consideration. Two Democrats on the committee voted against it.
“Thinking about the next confirmation hearing”
Members of the Utah Judicial Council were also troubled by SB296, sponsored by Sen. Chris Wilson, R-Logan, which would give the governor the power to appoint the Supreme Court’s chief justice every four years, with a confirmation by the Senate. Currently the five justices choose the chief justice themselves.
Durrant said the change would likely not impact him as chief justice, but he did have concerns about the future of the court. In the federal model, the president appoints the chief justice to a lifetime tenure, rather than having to be reappointed and reconfirmed every four years.
“That element [of the bill] is an attempt to exert influence and control over the chief justice,” Durrant said. “Now the chief justice is going to start thinking about the next confirmation hearing.”
Petersen agreed that the quadrennial confirmation hearings could make it hard for a chief justice to maintain independence.
“It’s clearly part of the suite of bills that is trying to take judicial independence … and put it under legislative control. It just seems pretty obvious,” she said.
“My preference is kill this silly bill,” she said later. “There’s absolutely no reason for you to be meddling in how we pick the chief justice. You can. But it’s not broken. It’s working well, so don’t do it.”
Wilson’s bill is scheduled to be heard by the Senate Judiciary, Law Enforcement and Criminal Justice Committee Tuesday afternoon.
