In its November 2002 briefing paper on “Senate Confirmation of Judicial Appointments,” the Utah Office of Legislative Research and General Counsel stated, “The primary purpose of Utah’s judicial selection system is to select highly qualified and skilled judges without regard to any partisan political consideration.”[1] The statement, mirrored in the Utah State Code, is based on Article VIII, Section 8 of Utah’s Constitution: “Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration.”[2]
Utah’s judicial selection process has long been highly regarded throughout the nation, both because of the absence of political consideration for judicial candidates and the fact that members of the judicial nominating commissions (appellate, district and juvenile) were selected from both major parties; no more than four of the seven members of each commission could come from the same political party. In his 2013 State of the Judiciary, Chief Justice Matthew B. Durrant stated, “In Utah we are fortunate to have judges of an extraordinarily high quality. Utah’s judges are selected by a nonpartisan vetting process that may well be more thorough and rigorous than any state in the nation…” [3]
“Our judicial selection process in Utah is known as the gold standard across the country in terms of ensuring a nonpartisan judiciary,” testified Elizabeth Wright, executive director for the Utah State Bar, before the House Judiciary Standing Committee on February 27, 2023.[4]
Legislators, however, voted to change the judicial selection system with the passage of Senate Bill (SB)129, Judiciary Amendments (2023).[5] The action repealed Title 78A, Chapter 10, Judicial Selection Act, most notably removing the requirement to limit the number of commission members from one political party. In the appointment of judicial nominating commission members, the governor no longer must consider party affiliation (thus, the governor could potentially appoint all members who represent only one party).
SB129 also eliminated the requirement for the governor to appoint two attorneys recommended by the Utah State Bar. The governor can now appoint any two practicing or retired attorneys to the nominating commission. Prior to the passage of SB129, the statute also required an eighth position to the commission – a non-voting member appointed by the Judicial Council (the policy-making body for the judiciary).
Officials from the Bar strongly opposed the changes to the commission selection process, warning the move would greatly affect neutrality; Utah’s selection of the judiciary could now become partisan, reflecting only the positions of the party in power.[6] Others expressing concern at legislative hearings included the State Court Administrator’s office, the Salt Lake County District Attorney’s office, and the Utah Commission on Criminal and Juvenile Justice.
While bill sponsor Senator Kirk Cullimore said changes to the commission member selection process “would provide more discretion for the governor to pick the most qualified people” and that “there are attorneys who feel like the [Utah State Bar] doesn’t necessarily represent all attorneys,”[7] Salt Lake County District Attorney Sim Gill called Cullimore’s bill “political gerrymandering,” noting the changes will “erode the state judicial system’s integrity.” The bill “will remove the guardrails that make the Utah nominating commission nonpartisan,” he said.[8]
Then-President of the Utah State Bar Kristen Woods said “Picking judges is such a crucial part of having a good democracy that runs in a very fair, nonpartisan way. We think the current system does that, and there’s [no reason] to mess with it.”[9]
Legislative overreach into the judicial branch was also evident with the 2023 passage of House Joint Resolution (HJR) 2, Joint Resolution Amending Rules of Civil Procedure on Injunctions.[10] The joint resolution restricts the criteria used by state courts to grant preliminary injunctions and temporary restraining orders when laws are challenged by those affected by them.
The timing and impact of HJR2 has been seen as an effort by the 2023 Legislature to impede a Third District Court injunction on Utah’s abortion trigger law. The trigger law went into effect when the U.S. Supreme Court overturned Roe v. Wade in June 2022. A challenge to the Utah law was filed by the Planned Parenthood Association of Utah.[11] A request for a preliminary injunction was granted by Judge Andrew Stone in July 2022 and again in May 2023, based on the new standard in the resolution.[12] (The Utah Supreme Court heard oral arguments on August 8, 2023, to determine the constitutionality of the abortion restrictions. A decision is pending.)
HJR 2 retroactively eliminates a court’s ability to grant a preliminary injunction unless there is “a showing by the applicant that there is a substantial likelihood that the applicant will prevail on the merits of the underlying claim.”[13] The prior language also had allowed an injunction if “serious issues on the merits” were raised.
The retroactivity (“reconsideration”) clause presents implications beyond the abortion issue. It allows an enjoined party to petition the court “to reconsider whether a restraining order or injunction should remain in effect” if based on the old standard and terminate the order or injunction if it is. Many groups are concerned that having to review the standard used in other open cases (i.e., those without a final determination) creates threats to various rights and creates unexpected financial costs.
The changes to the role of the judiciary were ill advised and adverse to the public interest. Therefore, both the statute changing the requirements for the judicial nominating commissions and the statute narrowing the injunction criteria should be repealed and the former laws reinstated. Furthermore, the legislature should do nothing that would further erode the excellent reputation that Utah’s judges and judicial procedures have earned over the years.
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[1] https://le.utah.gov/lrgc/briefings/senconf.pdf . In its conclusion, the OLRGC also described Utah’s judicial selection process as “unique.”
[2] https://le.utah.gov/xcode/Articleviii/Article_VIII,_Section_8.html
[3] Utah Chief Justice Matthew B. Durrant, “2013 State of the Judiciary” (available on YouTube)
[4] https://le.utah.gov/av/committeeArchive.jsp?timelineID=229487
[5] https://le.utah.gov/~2023/bills/static/SB0129.html
[6] https://le.utah.gov/av/committeeArchive.jsp?timelineID=229487 .
For instance, Utah State Bar Commissioner Traci Gunderson stated, among other things: “This bill was proposed without any input from the lawyers or the courts, despite making sweeping changes to the judicial selection process.”
[7] K. Bojóquez, “Republican-led measure would upend Utah’s judicial nominating process,” Axios Salt Lake City Newsletter, February 24, 2023. https://www.axios.com/local/salt-lake-city/2023/02/24/utah-judicial-nominating-commission-legislature-republican
[8] Ibid.
[9] Ibid.
[10] HJR2 (2023), https://le.utah.gov/~2023/bills/static/HJR002.html
[11] https://www.plannedparenthoodaction.org/planned-parenthood-action-council-utah-inc/policy/lawsuits
[12] https://www.axios.com/2023/05/02/utah-abortion-clinic-ban-injunction-judge
[13] https://le.utah.gov/~2023/bills/static/HJR002.html
