Senate GOP blocks governor's 'exceptionally qualified' pick for appeals judge

SALT LAKE CITY — A renowned Utah attorney — one who is held in especially high regard in Salt Lake City, where she served as city attorney under two mayors — is at the center of a whirlwind of controversy that's kicking up on Utah's Capitol Hill.

Supporters for Margaret Plane, who now serves as special counsel for Park City, are coming to her defense after learning that the Utah Senate is not giving her a hearing for a spot as a judge on one of the state's highest courts.

Gov. Gary Herbert nominated Plane to the Utah Court of Appeals last month, saying in a statement he was "proud" to appoint her as someone who has "demonstrated superior intellect and expertise. I am confident in her skills and know that she will serve well in this new position."

"This appointment is such an honor and I'm grateful for Gov. Herbert's confidence in me," Plane said in a statement at the time of her nomination. "If confirmed, I will be dedicated to the rule of law and will work incredibly hard to serve the people of Utah."

But when the agenda for the next Senate Judicial Confirmation Committee, scheduled for Dec. 17, was posted earlier this week, Plane's name was left off the list. Five of Herbert's judicial nominations were listed, but her name was nowhere to be found.

Reached Friday, Plane declined to comment.

Herbert's office urged the Senate Friday to give her a hearing.

"Margaret Plane is an exceptionally qualified attorney and an honorable person," the governor's office said in a statement. "We cannot imagine why the Senate would not schedule a hearing for her, and we encourage them to do so as soon as possible."

Sen. Todd Weiler, chairman of the Senate Judicial Confirmation Committee, told KSL Friday that she was not included on the hearing agenda because it was clear she would not get enough votes for advice and consent.

"As the committee chair, I am focused on getting as many of them confirmed as possible given the timeline, the pandemic and the holiday season," said Weiler, a Republican from Woods Cross. "We have received an unusual amount of opposition to one of the candidates. After caucusing with my Senate colleagues twice, it was abundantly clear that one of the nominees lacked the necessary support to be confirmed. If that changes, I am prepared to schedule a hearing."

Weiler said that candidate is indeed Plane.

The Senate has 60 days to act on Plane's nomination, a window that fades as Herbert's time in office also closes.

It's rare for judicial nominees to meet pushback from the committee or the Utah Senate. It's only happened a handful of times over 100 judicial nominees Herbert has issued during his tenure.

In 2008, the Utah Senate rejected Judge Robert Hilder's bid to join the Utah Supreme Court in a 16-12 vote, with some state lawmakers expressing concerns over his 2003 decision upholding a University of Utah policy barring guns on campus.

In 2012, the committee voted 4-2 to reject Su Chon's nomination to the 3rd District bench. The full Senate later confirmed her nomination in a 17-10 vote. A year later, Republicans and Democrats in the state Senate declined to vote on Catherine Conklin's nomination but declined to give specifics about why.

In Plane's case, the issue has kicked up questions about why Utah's Senate, which is controlled by a Republican supermajority, would refuse to give her a hearing.

Plane has served as an attorney for two large cities that have liberal leanings. Before taking her current post as special counsel for Park City, Plane worked for 12 years at Salt Lake City, first as a senior city attorney, then as the lead city attorney beginning in 2013.

Before her time at Salt Lake City, Plane was also legal director for the American Civil Liberties Union from 2004 to 2007.

Before that, in 2003, Plane worked as a judicial clerk for Utah Court of Appeals Judge Pamela Greenwood, according to her LinkedIn page.

"I'm surprised she's getting any pushback," said Sen. Derek Kitchen, D-Salt Lake City, who served on the Salt Lake City Council when Plane worked as the Salt Lake City attorney. He applauded her for navigating difficult issues like the Utah Inland Port Authority — and even clashes between the council and then-Salt Lake City Mayor Jackie Biskupski — with "impartial professionalism."

"A person of her professional stature shouldn't be receiving pushback," Kitchen said, questioning whether some senators have been "caught up in possible politics" and not "looking at her judicious record."

It would violate the Utah Constitution to select judges based on their political views. "Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration," Article VIII, Section 8 of the Utah Constitution states.

The Senate GOP caucus meetings are closed, so it's unclear whether some senators oppose her based on her political history. But in interviews with KSL on Friday, some senators said at least one factor of concern around Plane is her experience, having not served as a judge before.

"Based on the feedback we've received, many of my colleagues have determined that they don't feel she's qualified, or as qualified, as the other six names that were sent to the governor," Weiler said.

Yet three of seven current Utah Court of Appeals judges and two of five Utah Supreme Court justices had not served as judges prior to their appointments to those courts.

Sen. Lyle Hillyard, R-Logan — who is on his way out of office after he failed to win the Republican nomination in June despite decades in the Utah Legislature — is one senator on the Senate Judiciary Confirmation Committee who had misgivings with Plane's appointment.

Hillyard told KSL on Friday that he had some "unanswered questions" about Plane, adding that he had a desire to meet with her to hash out his questions, but it's "too bad" that has been difficult because of COVID-19.

Asked if it was because of her political background with Park City, Salt Lake City and ACLU, Hillyard said, "That has absolutely no bearing to me. None whatsoever."

Rather, Hillyard said he'd prefer to see more "diversity" on the Utah Court of Appeals, noting that currently only one member of that court is from outside Salt Lake County. Hillyard, an attorney himself, also said he wants to see more judges on that court that have experience working with clients that often can't afford expensive lawyers, such as divorce cases or juvenile court cases.

"That's the diversity to me that's really important, but I'm missing that and I don't see where Margaret Plane brings that to the table," he said.

Asked why not at least give Plane a hearing, Hillyard said whenever applicants run into controversy and it looks as if they might not have enough votes to win approval, they usually "withdraw their names." By not having a hearing or a Senate vote, they're sparing the embarrassment of rejection, he said.

"We don't have to explain our vote," Hillyard said. "I think it would be horrible for her to go through the process, with so many unanswered questions, and then be rejected. Then she has a stain on her record."

It's possible the agenda could still be changed to include Plane — a decision ultimately up to Senate President Stuart Adams, R-Layton. A request to Adams for comment Friday was answered by his spokeswoman, Aundrea Peterson, who didn't specifically address whether Plane would be given a hearing.

"The Senate takes the role of advice and consent seriously. Judicial appointments, particularly those to the Court of Appeals, are extremely important," Peterson said in a prepared statement. "The Senate will be deliberate and thoughtful when considering all judicial nominations."

Utah State Bar President Heather Farnsworth said she was shocked to hear that no confirmation vote was scheduled for Plane, her longtime colleague. Farnsworth described Plane as the perfect candidate for the job, saying she has a wealth of legal experience, doesn't shy away from tough issues and approaches them in a diplomatic, measured way.

"She's a fast learner. There would be no problem for her to get up to speed," Farnsworth said. "She has what it takes to be a judge."

Farnsworth recalled expressing her own desire to push on the Utah State Bar's behalf for an Equal Rights Amendment in Utah. But Plane helped her understand that approach wasn't appropriate in a conversation exemplary of Plane's thoughtful and impartial demeanor.

"We're a nonprofit organization, so we don't get involved in political issues," Farnsworth said. "I was having a hard time with seeing why that might be a political issue, and she was able to explain that to me and kind of talk to me about the history and make me more cognizant of that."

Plane is also credited with creating a mentorship program for new attorneys in Utah, was named 2020 Woman Lawyer of the Year, and has served on several boards of legal groups.

"She puts her time and effort into making sure we have good lawyers in Utah and that those lawyers are doing good things with their time," Farnsworth said. "I'm certainly not trying to push the Senate into a corner. I'm not trying to go after them. It's just, Utah's recognized for excellent merit selection process, and I'm always a fan of following the process for every candidate."

To Kitchen, it's not over for Plane.

"I'm hopeful that perceptions will fade away and we can look at her record and caliber as an attorney," Kitchen said, "and we see her confirmed."

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