It is one Utah lawmaker’s opinion that having multiple sets of eyes on litigation involving constitutional issues would create fairer outcomes for everyone involved.
Since there are multiple judges on the Utah Supreme Court bench, Rep. Jordan Teuscher, R-South Jordan, said “there can be some different disagreements in the interpretation of constitutional issues.” And that’s a good thing, he added, arguing that routing constitutional challenges through a three-judge panel at the district court level could have similar benefits and streamline the litigation process as well as prevent forum shopping for both parties.
His comments are in response to the backlash the state Legislature has received over passing a bill that says if a lawsuit is filed in district court against the state attorney general, governor or Legislature, or if they are a party in a case, they can submit a notice requesting the case be heard by the constitutional court panel instead of a single judge. That notice, under the bill, cannot be challenged and is not subject to review.
“Those decisions in the District Court may make their way up to an appellate court or to the Supreme Court, (and) those decisions can have an effect on those laws for a long period of time,” Teuscher told the Deseret News. “We’re seeing statutes within the state that have been on hold for three to four years as they work their way through the appellate process because of the decision that a judge made at the District Court level.”
Since the bill, HB392, became law less than a month ago, petitioners in cases challenging the state’s ongoing redistricting battle, the alleged mismanagement of the Great Salt Lake and the state’s abortion ban case requested temporary restraining orders after Utah Attorney General Derek Brown and the Utah Legislature, as defendants, formally invoked the new law by filing notices requiring the cases to be transferred from a single district judge to a three-judge panel.
Petitioners in the Great Salt Lake case said the law gave the state “unilateral and arbitrary power.”
Will legislation calm the tension?
The Legislature’s solution is in Teuscher’s bill, HB366.
First, the bill would allow any litigant — not just the state — to file a notice requiring a constitutional challenge to be heard by a three-judge panel instead of a single district judge.
If the state’s recently enacted three-judge panel system for constitutional challenges is struck down by the courts, then a trigger law in HB366 would automatically create a new constitutional court.
“We just want to provide some insurance, because we think this is an important ability, when a court is putting on hold a law that has been duly passed by the representatives of the people, that we have a more robust process to look at that,” he said. “The constitution is clear that the Legislature has the ability to create other courts, and that’s exactly what this would do.”
The three-judge panel uses regular district judges temporarily, while the constitutional court, proposed in HB366, would be a permanent new court made up of three judges, appointed by the governor and confirmed by the Senate, that would only take effect once triggered.
But even with the proposed solutions, some still view the Legislature’s actions as branch overreach.
“This continued meddling in the judiciary demonstrates yet again how the supermajority of the Legislature and Gov. Cox will change the rules whenever they fear that the laws they pass — session after session — violate the constitutional rights of Utahns. They clearly want to be not only legislators and the executive, but judge and jury too,” Shireen Ghorbani, president and CEO of Planned Parenthood Association of Utah, told the Deseret News in a statement. “Utahns deserve the right to make decisions about their bodies and futures, and the Utah Constitution protects their ability to do so. We will keep fighting to protect Utahns from this ongoing government overreach, whether it’s in the courts or in your doctor’s office.”
Teuscher argued that the bill aims to prevent both parties from forum shopping for a judge likely to rule in their favor.
“All this is trying to do is not to get a particular outcome in a case, but ensure that in these weighty matters where we’re talking about the constitution of a law and whether a law should go into effect or not go into effect, that we have more than one set of eyes that are looking at it,” he said.