How lawmakers are proposing to reshape Utah's court system

SALT LAKE CITY — Utah lawmakers have had their eyes on judicial reform in the state since a pair of Supreme Court rulings went against their wishes last summer, and the issue is one that will likely remain a focus during the final two weeks of this year's legislative session.

High profile proposals include raising the bar for the courts to block potentially unconstitutional laws, changing who has standing to sue over laws, and looking into expanding the state Supreme Court. But several other proposed changes are still working their way through the process, and new ideas have surfaced as recently as this week.

The Utah State Bar — which licenses attorneys and judges in the state — has spoken out against several proposals, and other attorneys have argued they could chip away at the independence of the judiciary.

Some top lawmakers who are members of the Bar, however, questioned how representative the organization is of attorneys in the state when asked about its opposition to several bills.

"I think, like any trade association, you kind of have to look at the point of view that they're coming from," Senate Majority Leader Kirk Cullimore, R-Sandy, told reporters on Feb. 14. "And the Bar Association, they do a lot of good things, but they're not super reflective of a lot of members of the Bar Association — required members of the Bar Association, I should say."

He said lawmakers are "cognizant of the separation of powers and don't want to step on that," but the Legislature "has a lot of roles to play" in outlining the judicial process.

Asked about the proposals Thursday, House Speaker Mike Schultz, R-Hooper, said he "wholeheartedly" disagrees that the changes could be seen as a revenge effort by lawmakers against the courts.

"It's fully within the Legislature's purview to pull some of that back at times or even increase it at times, and we do both, and that's the job of the Legislature," Schultz said of court rules and policies.

And although the courts are tasked with acting as a check on lawmakers, the speaker said he thinks "putting the decision back into those that are elected versus those who are appointed, I think, is better."

"Again, I'm a huge fan of democracy and keeping the power vested within those that are elected by the people," he added.

Here is a review of several bills that could bring about impactful changes to the state's court system and what to watch for as the Legislature barrels toward its conclusion at midnight on March 7:

Potential Supreme Court expansion

A top Republican representative floated the idea of expanding the number of justices on the state Supreme Court last week, but the formal proposal has yet to be made public. There are currently five justices on the high court; lawmakers could expand it to seven or nine if they choose.

House Majority Leader Jefferson Moss, R-Saratoga Springs, said the expansion would help keep up with the growing population of the state, keeping it in line with other states of similar size.

"It's been a discussion we've had for a little while ... so, looking at size of workload, size of the state, maybe improving even inefficiencies with caseloads," he said.

Schultz said additional members could also help as the court grapples with a number of complex issues.

"I think having more eyes on that is a good thing," he said.

But with only two weeks remaining in the session, lawmakers may be running out of time to have a meaningful conversation on the proposal.

"It might be," Schultz said, when asked if the issue might be better served in future years. "We'll see once it gets drafted. It's in that process of getting drafted right now. Once that comes out, you know — it's getting a little late in the process, you know? And we want to make sure that we're being thoughtful as we move forward. ... We think it's good to have that conversation — to start that conversation now — and we'll see what happens."

SB203

One of the first judicial reform bills to advance this year, SB203 addresses who has standing to bring legal challenges on behalf of individuals who might be harmed by state laws. The sponsor, Sen. Brady Brammer, R-Highland, said the bill "tightens up" state code by saying an association must be able to identify an individual who is harmed by a law before being allowed to bring a lawsuit.

"Ultimately, what this bill is about is making sure that people who go to court, that they are injured or they represent people who have been injured," Brammer told Senate colleagues this week. "It does require a heightened standard for pleading, meaning they just have to say how they were injured ... when they are an association representing injured persons."

The proposal could impact legal challenges like the one brought by Planned Parenthood Association of Utah — which challenged Utah's near-total abortion ban in 2022 and successfully paused the law from taking effect while the case plays out. The pause on that law and a Supreme Court decision last year allowing it to remain in place have rankled conservative lawmakers, and SB203 is seen as the latest attempt to push back on that decision.

The bill is opposed by the state Bar, which said it "attempts to change long-standing common law principles of standing."

SB203 passed a committee hearing on Feb. 10 and passed the Senate on Thursday.

SB204 and SJR9

SB204 is also seen as a response to the preliminary injunction that is blocking the abortion trigger ban from taking effect. Sponsored by Brammer, the bill allows the state to appeal temporary pauses on laws to the state Supreme Court.

Its original form would also have overturned the pause on such laws while the case is considered — which drew opposition from some attorneys and the Bar, who argued it would make it harder to block potentially unconstitutional laws. The Bar took no position on the latest version, which also passed the Senate Thursday.

Brammer is also the sponsor of SJR9, which amends the state's rules of civil procedure to give someone only 28 days after the end of a legislative session to seek a preliminary injunction blocking a law in a trial court.

The Bar opposes SJR9, saying it is inconsistent with SB204. The resolution passed a Senate committee on Wednesday.

SJR4 and SB154

Another pair of proposals sponsored by Brammer, SJR4 and SB154, work together to address what happens when legislative auditors seek privileged information between government attorneys and their clients.

SB154 requires that a government entity must "expressly assert a privilege" if it wants to keep certain records from auditors and allows auditors to contest those claims of privilege. Those claims can be ruled on by an independent arbitrator, the bill says.

SJR4 changes the state's rules of civil procedure to align with those same changes.

The Bar is opposed to both measures, saying they try to "govern the practice of law by altering the nature of the attorney client privilege and the ability for a government client to rely on the confidentiality of the communications with their counsel."

SB154 passed a committee hearing earlier this week and is awaiting consideration on the Senate floor. SJR4 was assigned to the Senate Judiciary, Law Enforcement and Criminal Justice Committee but has not yet been heard.

HB451

Judges in Utah are appointed by the governor but must win retention elections regularly in order to hold on to their posts. A simple majority of votes is all that is needed to win, but Rep. Jason Kyle's HB451 would raise the bar to a two-thirds majority for judges and Supreme Court justices.

Kyle has said the proposal would help build trust in the judiciary by ensuring a bigger majority votes to keep judges in office.

The Bar opposes the bill, saying the "extremely high threshold" would prompt an influx of outside money into judicial races from groups who may oppose decisions by a certain judge.

The bill is still waiting to be assigned to a committee.

HB512 and HB412

Most voters don't have much insight into judicial retention elections, so the state has created a commission to evaluate their performance and make recommendations to voters. HB512 would create a legislative panel to evaluate judges, which would hold public hearings and make recommendations of its own.

Schultz expressed support for the proposal — which is sponsored by House Majority Whip Karianne Lisonbee, R-Syracuse — saying it provides another layer of transparency to the process and allows members of the public with experience working with a judge to share their opinions.

"All it does is creates a process that actually provides more information to the voters to make a decision, and it also creates a process in which the voters can come up and talk about some of their experiences with the judges," he said. "I think that's a good thing. So, if you're a judge, I can understand why you may not want that additional level of scrutiny, but I think giving voters more information and letting the people make the decision is a good thing."

The Bar disagreed, arguing the legislative committee could inject more politics into the process and allow legislators to punish judges who rule against them.

HB412 eliminates limits on appointing partisan members to certain boards and commissions, including those that evaluate judges and their compensation. The Bar similarly opposes it, saying it will end the nonpartisan nature of such panels.

HB512 was assigned to the House Judiciary Committee; HB412 passed the House Government Operations Committee Thursday.

SB296

Finally, Senate Majority Whip Chris Wilson, R-Logan, introduced a bill that would give the governor power to appoint the chief justice of the Supreme Court rather than have the five justices vote internally for the chief. SB296 would also let the governor pick the presiding judge of the state's appellate court. Appointees for both positions would still be subject to the advice and consent of the state Senate.

Wilson said the bill would align Utah with how things are done at the federal level, where the president taps someone to serve as chief justice of the U.S. Supreme Court.

"We think this will be a good way for our constituents and citizens to be able to weigh in on that process," he told reporters Wednesday. "With a confirmation hearing, they'll be able to weigh in, and so we're just trying to align it with the federal government."

Cullimore added that the proposal would remove what he said could be a perception that justices vote a certain way to "curry favor" with their colleagues in hopes of being elected chief.

SB296 has yet to receive a committee hearing.

Related topics