Utah state Republican leaders recently expressed frustration and concern with the state’s judicial branch.
Without pointing the finger at any specific judge or court, the lawmakers said they believe the root of the problem is the lack of accountability and openness.
“The judicial branch is the least transparent branch of government that we have in the state,” state House Speaker Mike Schultz said in an interview with the Deseret News and KSL Editorial Board.
He backed his statement up by comparing the courts to the state Legislature, which he argues is very open with constituents.
“Anybody can get on the Legislature’s website — and we’re one of the most transparent states in the nation with our website — and look at any comment I’ve ever made on the record, look at any vote I’ve ever taken on the record. It’s very, very, very transparent,” he said.
Schultz said that without accountability, it leaves open the opportunity for judges from all political backgrounds to effectively legislate from the bench, which he considers a nationwide issue.
“We believe the judicial branch owes it to the public to have that type of transparency,” Schultz said, “because right now, go and try and find any information or decisions made by courts. It’s almost impossible.”
Adding judges to the bench
Utah Republicans, including Utah Gov. Spencer Cox, said last month they were considering adding two more judges to the state Supreme Court and the Court of Appeals.
Utah’s Senate GOP leadership confirmed last week that state lawmakers are aligned in their views of the judiciary and in the steps they believe are needed to address its problems.
“There’s not a single state (our size) that doesn’t have at least seven members on the Supreme Court,” Sen. Mike McKell, R-Spanish Fork, said during an editorial board meeting on Tuesday. If the Legislature passed a bill increasing the number of judges on the state Supreme Court, McKell said it would help judges by lightening their workload.
State lawmakers in both the House and Senate pointed to cases that have dragged on in the state Supreme Court for years without a decision, including on the state’s abortion law and education spending.
Attention is also being directed at the Court of Appeals. This session, Sen. Chris Wilson, R-Logan, is advancing a bill intended to help resolve workload pressure in the lower court.
“The Court of Appeals in 1987 had seven Court of Appeal judges, and the Chief Justice (Matthew) Durrant said it’s way over time for us to have the help we need in the appellate court, and so the bill is to expand the Court of Appeals from seven to nine,” he said. “Also knowing that those cases are going to filter up to the Supreme Court, we feel that there’s no question the Supreme Court is going to need at least two more justices to help distribute that caseload.”
Durrant has previously said he believes adding more justices to the state Supreme Court will not have the same helpful effect as it would on the Appeals Court.
In a previous statement to the Deseret News, the Utah State Bar Association said they believe expanding the Supreme Court will be costly for taxpayers and is one of “the least effective ways to address the delays in Utah’s judicial system” because staffing shortages, not the number of justices, are the main cause of delay.
“Judicial leaders have also cautioned that expansion of the Utah Supreme Court may actually complicate and slow decision-making, reinforcing the need to prioritize investments where they will have the greatest impact,” the statement said.
Tensions between the legislative and judicial branches have grown in recent years in Utah, with contentious issues such as abortion and the state’s most recent redistricting dispute helping to sharpen the divide.
According to Sen. Todd D. Weiler, R-Woods Cross, those two issues are where “legislating from the bench” is most often accused.
“Confidence in our institutions is being eroded across the board, and that includes the Legislature, it includes the courts,” Weiler noted, adding this is a national issue.
Even a “very good judiciary,” he told the Deseret News in a separate interview, can get blurry on an issue like abortion or redistricting, “where it’s so overlaid with politics, it’s hard to differentiate between the law and the political beliefs, and then a lot of people start making assumptions.”
In terms of priorities in the upcoming legislative session, Weiler said adding more judges to the bench is needed.
He sees firsthand when litigating cases that “our courts are overburdened with cases, and I think we do need some more judges. … I actually floated the idea of adding two judges to the Supreme Court three or four years ago, because we had five judges when this state had 300,000 people, and now we have five Supreme Court judges with 3.4 million people.”
Should Utahns elect judges?
Besides increasing accountability and transparency, Schultz, R-Hooper, also mentioned another possible solution to strengthen trust in the judiciary: electing judges.
“That’s not off the table,” especially for the Supreme Court, he said, adding he thinks the idea merits a “serious discussion.”
“Constituents, the vast majority of the people, want to have a more say in what their judiciary looks like, and electing judges is popular out there right now,” Schultz said. “You’ve seen it happen all across the nation. It’s something that we’ve talked about, and it’s something that we will continue to talk about, if we can’t try to resolve some of these issues beforehand.”
Weiler told the Deseret News that this was the first time hearing about the possibility of changing Utah law to allow for electing judges.
“I kind of like the way we do it now,” he said. “We want the best and most qualified people to serve as judges. And I think ideally you want them to approach every case with a kind of a blank or clean slate.”
Though he understands where the concern about the state of the judiciary stems from, Weiler said that he believes electing judges could compromise judicial impartiality.
“I know in Texas they elect judges, and many of the attorneys who are appearing before the judges are donating to their campaigns,” he said. ”That can be problematic.”
Utah is one of 21 states that currently puts judges on the bench through the assisted appointment method, in which the governor picks from a list created by the state Judicial Nominating Commission. The nominee is then approved by the Utah Senate.
“Regardless of what side of the political aisle you’re on, there’s abuses on both sides of judges legislating from the bench, and you saw that creep into other states, and you saw other states dealing with the issue before Utah has dealt with it,” Schultz said. “You’ve seen a lot of states move to electing their judges for this reason … it’s started to creep into the state of Utah over the last couple of years, and so that’s been the concern inside the legislative branch — and among the public for that matter.”
While lawmakers are likely to move forward this session on adding judges to the state Supreme Court and the Court of Appeals, the lawmakers did not indicate a bill to elect judges is likely to come to the floor this year.