In a rare move, the Utah Judicial Council — which governs the state’s court system — is publicly expressing “significant concerns” about a bill moving through the Legislature that, the council said in a letter Thursday, would represent an unprecedented threat to Utah’s independent judiciary.
In particular, the council focused on HB512, which would create a legislative committee to hold hearings to evaluate the performance of a judge up for their six-year retention election and make a recommendation on the ballot on whether or not that judge should be voted off the bench.
“This unprecedented approach is not only dangerous but also detrimental to the public’s trust in a fair and impartial judicial system and ultimately harmful to the citizens,” reads the letter, signed by Supreme Court Chief Justice Matthew Durrant on behalf of the 17-member council.
“A recommendation by a legislative committee as to whether a judge should be retained for another term will inevitably be viewed as a partisan recommendation. It is simply impossible to separate the partisan politics associated with legislative decisions from such a recommendation.”
The public will view the threat of a negative recommendation from the committee as an “incentive for judges to make politically palatable decisions rather than decisions that are required by the law,” eroding trust in the judiciary, the letter argues.
Judicial Council Letter on HB 512 by Robert Gehrke on Scribd
And, the council states, publishing the recommendations on the ballot will be viewed as an intrusion into the electoral process.
“It is no more appropriate to include on the ballot recommendations from the Legislature about whether voters should vote to retain a judge than it would be to include on the ballot recommendations from the judiciary as to whether voters should vote for particular legislative candidates,” the council wrote.
HB512 was approved by the House Judiciary Committee earlier this week, despite opposition from attorneys, retired judges and advocacy groups who warned it would impact judicial independence.
The bill’s sponsor, Rep. Karianne Lisonbee, R-Clearfield, argued at that hearing that the Legislature is intended by the Constitution to be involved in shaping the judiciary’s policy.
“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.”
The current judicial evaluation process, conducted by the nonpartisan Judicial Performance Evaluation Committee, is not working, Lisonbee said, and her bill would give voters more information when they are deciding whether a judge should remain on the bench.
House Speaker Mike Schultz, R-Hooper, shares Lisonbee’s perspective.
“I want to be clear, the Legislature has a constitutional authority to have a check and balance,” he said Thursday. “I’m confident by the time we make it through the process we’ll have a better pathway for citizens to have more information about the judges when it comes time to vote.”
HB512 could be voted on by the House as early as Thursday evening.
(Trent Nelson | The Salt Lake Tribune) Rep. Karianne Lisonbee, R-Clearfield, at the Utah Capitol in Salt Lake City on Tuesday, Feb. 4, 2025.
Lisonbee’s bill is part of a package of bills legislators are proposing to clamp down on a judiciary that has dealt a series of defeats to the Republican legislative agenda in recent years.
Other proposed bills, if passed, would require judges to get 67% of the vote in retention elections to keep their jobs; and let the governor appoint the chief justice with Senate confirmation and require the chief to be reappointed and reconfirmed every four years.
A proposal to add justices to the Utah Supreme Court will not move forward this session, House Majority Leader Jefferson Moss, R-Saratoga Springs, who had planned to sponsor the change, said Thursday.
‘It’s obviously retribution’
During the Judicial Council meeting Monday, Justice Paige Petersen urged the council to stop trying to sit on the fence and hope the bills change and call the bills what they are.
“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.”
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 practically unheard of for the judicial council to take public positions on legislation or for justices to speak publicly on legislative matters. But with legislators waging what Durrant called a “broad attack” on the independence of the judiciary, the council felt it could not stay silent.
In doing so, the judges join a growing chorus of voices from the legal community opposing what is being called a legislative power grab.
On Wednesday, a group of lawyers stood on the steps of the Capitol, calling Utah’s judiciary a model for the nation and warning of the damage that would be done if the package of bills became law.
(Francisco Kjolseth | The Salt Lake Tribune) Attorney Kristy Kimball is joined by other attorneys as they gather on the steps of the Utah Capitol to speak out against numerous judiciary bills that have emerged during the 2025 legislative session, Wednesday February. 26, 2025.
“Simply put, these bills are a coordinated effort to weaken the judiciary and remove critical checks on government power that should concern every Utahn, regardless of your political affiliation,” said Kristy Kimball, a partner at Holland & Hart.
“An independent judiciary is not just an issue for lawyers, it impacts every single person in this state,” Kimball said. “If these bills pass your right to a fair trial, your ability to challenge unjust laws, and your confidence that judges will rule based upon the law, not political pressure, will be at risk.”
Chris Peterson, a law professor who ran for governor as a Democrat in 2020, said that requiring judges to get 67% in retention elections, along with recommending which judges should or should not be retained, “would create a dangerous incentive for judges to no longer decide cases without fear or favor in the way that we expect them to in our society.”
The Utah State Bar has also taken positions opposing the judicial bills which it has said “jeopardizes judicial independence enshrined in the state constitution.”
