In one way or another, laws passed by the Utah Legislature can sometimes find themselves challenged on constitutional grounds.
Two notable examples in the last few years have been the state’s near-total abortion ban and redistricting. In both cases, the Legislature came out on the losing side. Now, GOP lawmakers are eying a special court to hear such cases in the future.
Rep. Matt MacPherson’s constitutional court bill, HB392, would create a specialized three-judge panel that only deals with matters of constitutionality in Utah law. Last week, he told the House Law Enforcement and Criminal Justice Committee that the move was all about expediency.
“The specialization and the ability to keep them centralized in this space will allow these cases to move much more quickly,” he said. “They won't get bogged down by the fact that these district court judges already have an extremely high workload.”
Currently, cases challenging state law are filed in and assigned to a judge in any of the state’s eight district courts, where a lack of efficiency has been a common talking point for Republicans looking at various court reforms.
However, the efficiency argument doesn’t really hold up for University of Utah S.J. Quinney College of Law Professor Emerita Linda Smith.
“There's some advantage of having three judges in terms of them thinking things through and making sure that they're all on board, that they're making the decision the right way, on the right basis,” she told lawmakers in the Jan. 28 hearing. “I wouldn't be opposed to that kind of panel, but it's not going to be more efficient.”
If it’s created, the court would be filled in the same process as other courts in the state. A nominating commission submits names to the governor, whose picks are confirmed by the state Senate. As the bill is written now, judges would be able to keep their current jobs in the district or Court of Appeals and take up constitutional cases as they arise.
Cases against Utah law can often be high-profile, and judges can fall under intense scrutiny from lawmakers and the public for their rulings. That, MacPherson said, was another issue that could be addressed if his bill became law, as these types of cases would only go before a select few judges.
“If you talk to the courts, they will freely state that most of our district court judges don't like having these cases,” he said. “There's a lot of pressure. There's a lot of eyes on them.”
Pushback on the bill from the legal community has been strong. Several attorneys and retired judges testified against the bill, saying that a special constitutional court would fundamentally change the judicial system as we know it in Utah.
“This bill protects the government from injunctions, rather than protecting citizens from unconstitutional action,” Utah State Bar Commission President-Elect Tyler Young told lawmakers. “This bill creates a structural bias towards enforcement of laws that might be unconstitutional.”
That perceived bias, he said, could undermine public trust in judicial neutrality.
While professor Smith told lawmakers she’s not opposed to the concept of a three-judge panel overseeing injunctions for constitutional challenges, having a court solely dedicated to handling those challenges is unusual.
“Structuring a court, a trial court, to do just constitutional cases is something that no other state in this union has. Nowhere,” she said. “So you're going to have this junior constitutional court before the senior constitutional court, the Supreme Court, gets it. That's tough. I'm not seeing that structure.”
A structure like that is most similar to other countries like France or Italy, Smith said, where specialized courts are the norm.
In addition to her reservations about the proposed court’s role, Smith expressed concern about how recently she and others in the legal community learned of the bill’s existence.
According to the Legislature’s website, the bill was revealed on Jan. 27, one day before its first committee hearing. MacPherson told his colleagues that he had been working on the bill for months.
“What most surprised me about this bill was that I didn't hear about it from Chief Justice Durant's state of the judiciary,” Smith said. “No one's consulted with the courts about this.”
Smith urged lawmakers to take a step back and reassess whether this would ultimately help the court do its job and remain an independent branch of government.
“People need to depend on the courts being neutral,” she said. “Otherwise, they'll stop following the law. They won't bring their disputes to court. They'll bribe somebody to get what they want, or they'll use violent means to get the way they want.”
Ultimately, MacPherson’s bill passed out of committee on a party-line vote of 7-2 and is currently in front of the full House for debate.
Lawmakers have hinted that future changes could be coming. Sen. Mike McKell told ABC4 that he and his Republican colleagues were considering a rotating panel of judges instead of a permanent 3-judge court.
“I think that’s a very fair way to do it,” he said.
Editor’s note: KUER is a licensee of the University of Utah but operates as an editorially independent news organization.
