Utah Gov. Spencer Cox speaks at his monthly news conference held at the Eccles Broadcast Center in Salt Lake City on Thursday, Sept. 19, 2024. (Pool photo by Isaac Hale/Deseret News)
In the wake of two major Utah Supreme Court rulings that upset Utah’s Republican-controlled Legislature — one siding with anti-gerrymandering groups and one upholding a block on Utah’s near-total abortion ban — lawmakers are eying possible reforms to the judiciary.
House Speaker Mike Schultz, R-Hooper, told Utah News Dispatch last month that elected judges, term limits and ways to increase “transparency around retention” are all “on the table” for consideration heading into the 2025 legislative session — though he added any changes could take “a couple of years.”
“Everything’s on the table right now,” Schultz said at the time. “Moving the judiciary closer to the people is a trend that’s happening nationwide. And, you know, it’s starting to percolate here in Utah.”
Currently, Utah’s judges are appointed by the governor and confirmed by the Senate. Utah voters also already play a role by voting in judicial retention elections. But Schultz said some members of the House want to explore making Utah’s judges elected by voters.
Citing ‘frustrations’ with the courts, Utah Republican lawmakers eye possible judicial reforms
On that front, lawmakers could run into hurdles from the executive branch.
Utah Gov. Spencer Cox told reporters during his monthly PBS Utah press conference Thursday he would not be in favor of making Utah’s judges elected officials — and he defended the quality of Utah’s current judicial system.
“We have an incredible system here in our state. It’s been recognized across the country as one of if not the best systems in the country,” he said. “I’m grateful for that. The last thing we need are more divisive elections, especially over a branch of government that’s suppressed to be independent.”
However, Cox also left the door open to other possible reforms, though he didn’t specify which ones.
“We’re always looking at ways we can reform government and make government better, and I’m certainly open to those discussions and conversations as we move forward,” he said. “I certainly don’t think our judiciary is perfect. I certainly have some disagreements, but it’s also part of the system. … We don’t always get our way, and we have three branches of government for a reason, and those branches of government are supposed to be held in tension at times.”
Besides elected judges, would Cox support other changes like term limits or increasing “transparency around retention,” as Schultz called it? The governor was noncommittal.
“I haven’t looked at those specifically,” he said, though he repeated “I’m open to having those discussions. We want the best judiciary in the nation, and we’re always looking for ways to improve. … There probably are some things we could do to strengthen the judiciary and make it better.”
Why are Utah lawmakers frustrated with the judiciary?
The first major ruling that angered many Republican lawmakers came in July, when the Utah Supreme Court sent a lawsuit over Utah’s redistricting process back to district court. All five of its justices ruled the lower court “erred” when it dismissed the League of Women Voters’ claim that the Utah Legislature violated the Utah Constitution in 2021 by repealing and replacing Better Boundaries’ voter-approved initiative, which would have created an independent redistricting commission to draw Utah’s next set of political boundaries.
That unanimous opinion affirmed that while the Legislature can in some cases alter the implementation of ballot initiatives seeking government reform, it can’t fundamentally undermine them — an interpretation of the Utah Constitution that clashed with Utah lawmakers’ long-standing belief that the constitution gave them ultimate authority to repeal or replace any type of ballot initiative.
In response, the Utah Legislature called itself into an “emergency” special session to hurriedly place constitutional Amendment D on the Nov. 5 ballot. The question asks voters whether to rewrite the constitution to make clear lawmakers have ultimate authority to change or repeal any ballot initiative — which would effectively sidestep the court’s interpretation of the Utah Constitution.
Utah Legislature asks voters to change constitution, skirt Supreme Court ballot initiatives ruling
That prompted anti-gerrymandering groups to sue, arguing Amendment D’s language was “false and misleading.” A district court judge agreed — and she voided the question. Now, the Utah Legislature’s attorneys are appealing that decision before the Utah Supreme Court, with oral arguments scheduled for Sept. 25.
After the district court judge’s ruling voided Amendment D, Schultz and Senate President Stuart Adams, R-Layton, issued a joint statement saying they were “extremely disappointed by the lower court’s policymaking action from the bench.”
Another Utah Supreme Court decision made waves on Aug. 1, when the court upheld an injunction on the state’s 2020 near-total abortion ban that’s been on hold while a lawsuit from Planned Parenthood Association of Utah litigates its constitutionality.
Both Utah Supreme Court rulings drew outrage from many Republican lawmakers. Among them was Rep. Jordan Teuscher (who co-sponsored Amendment D). He issued statements criticizing not only the Utah Supreme Court’s decision in the redistricting case, but also one saying he was “deeply appalled” by the court’s decision in the abortion lawsuit. In that statement, Teuscher deemed the Utah Supreme Court an “activist court stretching to reach its opinion.”
Is there ‘judicial activism’ in Utah?
Cox told reporters he does “worry about judicial activism,” adding it’s top of mind when he’s interviewing judicial candidates.
“I grill them. We grill them multiple times. It’s a very difficult process to become a judge in the state of Utah. You have to go through lots of different levels to work your way up. And one of the questions I ask is about judicial activism,” Cox said. “What does it mean to be a judicial activist and how do we prevent that from happening?”
Cox said it’s “very important to me that judges do one simple thing, and that is they take the law as it exists and they apply it to the facts of the case. That’s what judges are supposed to do.”
Pressed on whether he’s seen any “judicial activism” in Utah, Cox said “not much that I would point to specifically.”
“But it is something I’m worried about,” Cox said, adding that “we have seen it at the national level, for sure. We’ve seen, I think, a tremendous amount of judicial activism from the (U.S.) Supreme Court in the past. I feel much better about this court and the direction they’re going.”
However, Cox said sometimes — “and I’m guilty of this sometimes” — people can deem a decision “judicial activism” when “there’s a decision we disagree with.”
“And that’s not fair to our judges, either,” the governor said. “So I’m very proud of the judiciary here, again, even when I disagree.”
Unpacking Cox’s stance on Amendment D
Cox’s Republican counterparts in the Legislature had stronger reactions to both the redistricting and abortion rulings. Cox said he disagreed with them, but he also said he respected the judge’s decisions.
Cox, however, partially helped lawmakers put Amendment D on the Nov. 5 ballot. The supermajority called themselves into the “emergency” session to do so, and the governor doesn’t need to sign off on proposed constitutional amendments, though Cox did sign legislation condensing the process that facilitated Amendment D’s printing on the ballot. (If he were to veto it, though, GOP lawmakers would have likely overridden it with their supermajority).
Cox fields criticism from both Democrat King and Libertarian Latham during debate
Cox’s Democratic challenger Rep. Brian King, D-Salt Lake City, criticized him for that during a gubernatorial debate earlier this month, saying he was “complicit with the Legislature in this power grab.” Cox, in turn, said the issue should be left up to the voters, and “trying to keep people from voting on this is incredibly deceitful.” When pressed in a scrum after the debate on whether he would vote in favor of Amendment D or not, Cox didn’t give a clear answer, saying it’s “worth supporting but it’s close and I see why people are opposed to it.”
Then came the decision to void Amendment D. Asked whether its ballot language was indeed “misleading” — a ruling that the Utah Legislature is now appealing before the Utah Supreme Court — Cox said “I’ll let the court decide.”
Pressed on whether, if Amendment D would have been worded differently or if legislative leaders would have taken more care in crafting the ballot language, that could have increased its chances of staying on the Nov. 5 ballot, Cox said, “the answer to that is probably yes.”
“I may have worded things differently,” he said, though he added that was only one of the reasons why the district court decided to void the question.
The judge also ruled lawmakers failed to meet constitutional requirements that the texts of proposed constitutional amendments be published in newspapers two months before the election.
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