Politically speaking, the Utah Supreme Court's 3-2 vote to outlaw court commissioners - temporarily throwing part of the state court system into a tailspin - is a good thing, Gov. Mike Leavitt and legislative leaders believe.
In the long run, how the court commissioners were hired and did their work was a basic violation of separation of powers. Taken to the extreme, the number of commissioners could grow and lead to the executive and legislative branches losing control over much of the picking of "judges.""I believe the majority decision was correct, and I welcome it," Leavitt said Wednesday. "Although we recognize there will be some short-term displacement and inconvenience."
Court commissioners since 1991 have been appointed by members of the judiciary itself. While there are few commissioners and they make only basic judicial decisions - like final approval of an agreed-upon divorce settlement or some plea bargains - they operate outside the traditional check-and-balance, some state officials believe.
"This was a conservative judicial decision," said Leavitt. "Not an expansive decision - particularly courageous since it deals with the court's own authority." Leavitt appointed the decision's author - Associate Justice Leonard H. Russon - to the Utah Supreme Court in January. Russon's vote was decisive in the 3-2 decision.
The decision has caused problems. Some people who pleaded guilty to misdemeanors could now demand trials - although apparently most aren't going to do so. Some people who have had a change of heart over their divorce settlements could demand rehearings - and a local Utah attorney has filed a lawsuit demanding that all divorced people be notified of their rights after their decrees, approved by commissioners, were thrown out by the decision.
By the Utah Constitution, judges are nominated by the governor and confirmed by the state Senate. After that original appointment, judges stand for a retention election at the end of their four-year terms. Rarely, however, do citizens vote a judge out after his term - so basically the judge is in for life unless he makes a terrible, publicity-seeking decision or voluntarily retires.
But court commissioners aren't nominated by the governor or confirmed by the Senate. They stand for no retention election. They serve at the pleasure of the Judicial Council, a group of judges headed by the chief justice that controls most of the internal rules and practices of the courts.
"I agree with the decision (to outlaw court commissioners)," said House Speaker Rob Bishop, R-Brigham City. While in a strong dissenting opinion Utah Chief Justice Michael Zimmerman said constitutional changes may be necessary to overthrow the Supreme Court's majority decision, Bishop doesn't necessarily believe that's required.
"We have several options, none of which require a special legislative session this year or even a constitutional change," said Bishop. In January's general session lawmakers could repeal the "unconstitutional" commissioner statute and replace it with another one. That new law could elevate justice of the peace justices (as they are now called) to be commissioners, or the Legislature could just require that court commissioners go through the current judicial confirmation process - nominated by the governor and confirmed by the Senate.
"No immediate correction is required," said Bishop. "Lawsuits aside, the courts can work this through until the Legislature meets. Who knows what went on (in the high court's ruling). Now the chief justice oversees the hiring of commissioners. In the future the governor might. A turf battle going on? Or maybe I'm being unfair. We have some big egos in the judiciary, and that puts a different hue on all this."