Attorney Tyler Green speaks to the court as Mormon Women for Ethical Government and The League of Womens voters oppose the Utah State Legislature during oral arguments at The Supreme Court of Utah in Salt Lake City on Wednesday, Sept. 25, 2024. (Pool photo by Jeffrey D. Allred/Deseret News)
Despite loud opposition from Utah’s legal professionals and the judiciary itself, the Utah Senate on Friday approved a bill to require the chief justice of the state’s highest courts to be appointed by the governor and confirmed by the Senate — and be subject to reappointment every four years.
The Senate voted 17-12 to pass SB296, with six Republicans — Sens. Evan Vickers, R-Cedar City; Derrin Owns, R-Fountain Green; Ron Winterton, R-Roosevelt; Don Ipson, R-St. George; Ann Millner, R-Ogden; and Dan Thatcher, R-West Valley City — joining Democrats to vote against it.
It now goes to the House for consideration.
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The Utah State Bar and others have opposed the bill, arguing it could disrupt the balance of powers between the state’s three branches of government by allowing the executive and legislative branches “to interfere with leadership selection” for the Utah Supreme Court and “weaken judicial independence.”
But the bill’s sponsor, Senate Majority Whip Chris Wilson, R-Logan, argued on the Senate floor his bill is meant to have the opposite effect.
‘A broad attack’: Utah’s judiciary fights bills threatening its independence
“Involving the executive and legislative branches ensures that the system of checks and balances is utilized as our Founding Fathers intended,” Wilson said. “The process helps preserve the fairness and impartiality of the judiciary, preventing any one branch from gaining undue influence.”’
Currently, the Utah Supreme Court’s five justices elect their own chief justice, who takes on a lead role as the presiding counsel of the Judicial Council, which administers the judiciary. The chief justice also delivers the State of the Judiciary speech each year.
Michael Drechsel, assistant state court administrator at the Administrative Office of the Courts, told a Senate committee this week the judiciary opposes Wilson’s bill, expressing concern that it would be an “unwise use” of legislative authority.
The Utah Constitution does give the Legislature the ability to choose how the chief justice is selected, Drechsel acknowledged. But just because lawmakers can, that doesn’t mean they should, he said.
“The justices of the Supreme Court know best who can lead them, who can administer and attend to those functions,” he said.
Friday’s vote came the day after Utah Supreme Court Chief Justice Matthew Durrant visited the Utah Capitol to meet personally with both Senate President Stuart Adams, R-Layton, and House Speaker Mike Schultz, R-Hooper.
Utah chief justice delivers letter to lawmakers to oppose bill threatening judicial independence
Earlier this week, during a Judicial Council meeting, Durrant and other justices debated SB296 as part of a larger suite of bills that critics view as a “revenge streak” after two Utah Supreme Court rulings that upset lawmakers this summer. They worry lawmakers are advancing bills that risk injecting politics and legislative control over a branch of government that’s meant to be impartial and independent.
“I view it as a broad attack on the independence of the judiciary,” Durrant said in that meeting Monday.
That day, Justice Paige Petersen urged “kill this silly bill.”
“There’s absolutely no reason for (the governor and the Senate) to be meddling in how we pick the chief justice,” she said, urging her colleagues to take a public position to oppose the bill.
Durrant acknowledged that Wilson’s bill likely wouldn’t affect him as the current chief justice, but he said it could impact future members of the Utah Supreme Court. And he pushed back on a previous characterization Wilson made that it would follow the same model as the U.S. Supreme Court, which doesn’t require reconfirmation hearings every four years.
“That element to it is an attempt to influence and exert legislative control over the chief justice,” Durrant said.
As part of his meeting with legislators, Durrant delivered a letter outlining his concerns with legislative efforts that could potentially undermine the “independence and integrity” of the judiciary. However, that letter only named one bill — HB512, which would give legislators a say in judicial retention elections. The letter did not specifically name SB296.
Despite experts’ warnings, bill to give Utah lawmakers a say in judge elections advances
Democrats including Sen. Nate Blouin, D-Salt Lake City, and Sen. Kathleen Riebe, D-Cottonwood Heights, spoke against Wilson’s bill on the Senate floor. Blouin said the state risks “imposing more political influence on the court,” while Riebe warned it could put the state in a “dangerous position” by violating separation of powers principles.
“Just because we can, doesn’t mean we should,” Blouin said, before casting his no vote.
Sen. Brady Brammer, R-Pleasant Grove — who is running multiple bills that are opposed by the Utah State Bar — spoke in favor of SB296, arguing it’s “entirely within the purview of the Legislature” to decide how the chief justice is selected.
Brammer also repeated a criticism he shared in a Senate committee hearing earlier this week, saying he’s concerned about the “current productivity of our Supreme Court.” He said between 2016 and 2020, the court authored an average of 71 opinions per year, but he said in recent years that count has dipped.
“In 2023 they were the least productive court in America based on the number of opinions,” with only 25 opinions, Brammer said.
Utah Supreme Court disputes lawmakers’ allegations that it’s not productive enough
Earlier this week, Tania Mashburn, director of communications for the Utah State Courts, disputed those allegations in a lengthy statement to Utah News Dispatch that pointed out the problems with gauging the court’s productivity just by the number of published opinions. A variety of factors can influence that number, including the number of appeals filed by litigants and how many of those cases reached a point where they were ready to be heard.
“The cases before the Court have also been increasingly complex,” Mashburn said. “For example, the average length of an opinion in 2000 was only 5.48 pages and in 2024 it was 20.74 pages.”
Importantly, the Utah Supreme Court also does not face a backlog of cases, she said.
During a news conference earlier this week, when Utah’s legal professionals urged opposition to SB296 along with other bills aimed at the judiciary, Chris Peterson, a University of Utah law professor, pushed back against claims that the Utah Supreme Court hasn’t been productive enough compared to other states.
‘Revenge streak’: Utah Bar opposes flurry of bills flexing legislative influence on judiciary
“It strikes me that the Utah Supreme Court is well in line with other courts,” said Peterson, who was also a Democratic candidate for governor in 2020. “That’s not to say that there might not be a case here or there where they could have decided a little more quickly. And there might be some reasonable proposals to try to encourage those cases to move along at a brisk pace”
But Peterson said “that’s not what these bills are doing.”
“These bills are not oriented towards productivity or speed of decision. These bills are oriented towards creating public pressure on judges to make a decision one way or another,” Peterson said.
Peterson warned that legislation will have a lasting impact, well beyond Utah’s current political leaders or Supreme Court justices, that will create a structure “that would allow corrupt influence to pressure judges to decide cases one direction or another.”
“That’s a recipe for eroding the rule of law and removing independence of the judiciary,” he said. “It’s not about productivity. If this were just about productivity, we would not be here. I’d be up in my office, minding my own business.”
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