Utah News Dispatch
Court ‘transparency’ bill that would require ‘cooling off’ period for judges heads to Utah House
The Utah Supreme Court hears arguments on Colby Jenkins’ lawsuit seeking to have late-postmarked ballots counted in his 2nd District primary race, which he lost by 176 votes, on Friday, Aug. 9, 2024. (Pool photo by Francisco Kjolseth/The Salt Lake Tribune)
A bill that would require Utah’s judiciary to make live court proceedings and records easier to access — and also enact more restrictions on judges by banning them from working at law firms after they leave the bench — narrowly survived its first legislative hurdle on Friday.
After initially voting to hold the bill amid concerns that it would go too far and create privacy concerns for crime victims, defendants and others in sensitive court proceedings, the House Judiciary Committee minutes later decided to reconsider and voted 6-5 to endorse the bill.
HB540, sponsored by Rep. Logan Monson, R-Blanding, has the backing of the House’s top Republican, House Speaker Mike Schultz, R-Hooper, who has called for more “transparency” to help voters hold judges accountable during retention elections.
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The legislation is among a still-growing list of bills Utah lawmakers are considering this session that would make sweeping changes to the judiciary during a time when Republican legislative leaders have expressed frustration with the state’s courts in the wake of several rulings they disagree with — most recently in the state’s ongoing redistricting legal battle.
While advocates for more judicial transparency measures applauded the bill as a good first step even though it’s “not perfect,” legal professionals and a judiciary representative expressed concerns that it would put Utahns’ private information at risk while also arguing the state already has rules in place to protect against conflicts of interests for attorneys.
The case for more judicial ‘transparency’
Utah’s judiciary already does livestream some court proceedings, but not all. HB540 would more widely require Utah’s court system to livestream most of its proceedings, as well as offer easier access to audio recordings and other documents.
“The people of Utah deserve transparency and accountability from all branches of government,” Monson said.
The bill, he said, would make four key changes:
- Require the judiciary to create and maintain a single online access point for all public records that’s easily searchable and free for up to 50 searches.
- Make court audio recordings free and accessible for the public.
- Direct the judicial council to create a rule on judicial financial disclosures similar to those already in place for the state’s other elected officials.
- Ban law firms who are involved in litigation against the state from hiring a former judge until two years after the judge leaves the bench.
“Judges are supposed to be accountable to voters through retention elections,” Monson said. “But online access to those records require a payment and are not very easily accessible.”
For example, he said the state’s court database, Xchange, doesn’t allow Utahns to search court cases by a judge.
“It makes it very difficult for members of the public to learn anything about how judges on their ballot are ruling,” he said. “Contrast that with the Legislature’s website, where every committee hearing, every motion, every video is live streamed, recorded and made freely available to the public. “
Monson, during Friday’s committee hearing, also noted some advocacy groups have ranked Utah — along with Idaho — at the bottom of the nation for judicial financial disclosure requirements.
In a 2013 post, The Center for Public Integrity gave Utah an ‘F’ grade for judicial financial disclosures since the state’s justices aren’t required to disclose any information about their personal financial interest. That post quoted then-Utah Court Administrator Dan Becker, who said that due to Utah’s merit selection process, no scenario has ever occurred to require a judge to post personal financial information.
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“No justice has ever had an organized campaign against him or her under the current selection process,” Becker wrote to The Center for Public Integrity in an email at the time. “Accordingly, there has never been a campaign financial disclosure filed on behalf of a justice of the Supreme Court.”
Fix the Court, a judicial policy and advocacy group, has also called out Utah and Idaho for not having any annual disclosure requirements for judges and justices.
“Every government official in the country should be obligated to file a financial disclosure each year, and that includes judges and justices,” Fix the Court executive director Gabe Roth said in a statement posted on the group’s website on Thursday, after HB540 became public.
Even though HB540 “is not perfect,” he added, “it represents an important step toward improving the landscape of judicial transparency in this country, and I’m pleased to see Fix the Court’s work recognized in this way. Idaho: you’re on the clock.”
‘Cooling off’ period for judges
Monson also said the part of the bill to ban law firms from hiring judges for at least two years after they leave the bench is aimed at preventing conflicts-of-interest.
“We have a little bit of a problem with justices who retire for the bench and then immediately go to law firms that are currently involved in some of the state’s biggest lawsuits,” Monson said, listing off legal challenges to the state’s redistricting process, its near-total abortion ban, its flavored vapes ban, and its school choice program known as Utah Fits All.
Four former Utah Supreme Court justices — who recently spoke out against lawmakers’ moves to change the judiciary in an editorial board meeting with the Deseret News and KSL — have ties to law firms that are involved in litigation against the state.
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However, Utah’s existing judicial conduct rules already guard against conflicts of interest for judges, said Michael Drexel, assistant state court administrator at the Administrative Office of the Courts.
And Rep. Anthony Loubet, R-Kearns, noted that under Utah’s existing rules of professional conduct, law firms are already required to create “firewalls” for attorneys to protect against potential conflicts of interest.
Fix the Court also noted in its post this week that it would prefer a more “precise ban.” The group wrote that “blocking former judges from working on suits against the state for two years, as opposed to blocking them from working at those firms entirely … might be more desirable and less subject to a future challenge in court.”
The Utah State Bar, in a statement issued Friday evening, said the bill as currently written “will likely face constitutional challenges.”
“Rule 1.12 of the Utah Rules of Professional Conduct prohibits former judges from participating in matters in which they were personally and substantially involved, and judicial ethics rules require recusal when impartiality could reasonably be questioned,” the Bar said. “These safeguards allow conflicts to be evaluated appropriately without imposing unnecessary blanket restrictions.”
Instead, HB540 “imposes rigid prohibitions that disqualify not only former judges but entire law firms, even in matters unrelated to prior judicial service,” the Bar said.
“It also creates inconsistent restrictions by limiting representation against the state while allowing representation of the state,” it added. “These provisions could discourage qualified attorneys from accepting judicial appointments and interfere with employment opportunities without improving fairness.”
Concerns
Kim Cordova, president of the Utah State Bar, said the Bar opposes the bill as it’s currently written due to privacy concerns.
“When people come to court, it’s usually one of the biggest events in their life. Divorce, child custody, employment issues, evictions, guardianships, contracts, being accused of a crime, or being a witness or a victim in a crime,” she said. “This is a vulnerable time in their lives. And for it to be live streamed, especially when we’re dealing with very serious and private issues, then that is a concern.”
Cordova said as currently written, the bill could create a chilling effect and prevent people from wanting to report crimes or come to court.
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“There’s intimidation, there’s safety concerns,” she said, noting the bill’s requirements would also apply to juvenile kids and cases involving minors.
Monson acknowledged that there should be “some filters” to protect sensitive information in the courtroom. “Access to everything, we understand, creates a little bit of the problem,” Monson said, promising to make changes to the bill on the House floor.
“I am committed to making sure we find some balance on this,” he said.
While Rep. Nelson Abbott, R-Orem, said the bill “raises some very good issues,” he voted against it because he argued it needed more time to refine. However, he agreed the courts are “behind the ball” when it comes to transparency, noting that it’s “excessively hard” under the current system to get transcript of proceedings.
“This bill shows the frustration of not only the Legislature, but many members of the public that the courts are so slow to adopt some of these issues that would make them more transparent,” Abbott said. “But at the end of the day, I think the courts should do this rather than the Legislature.”
Rep. Jon Hawkins, R-Pleasant Grove, argued the committee should hold the bill “so we can continue to work on it.”
At first, a slim majority of the committee agreed with Hawkins, voting 6-5 to hold the bill in committee. But minutes later, Rep. Jason Thompson, R-River Heights, proposed the committee reconsider the bill after discussing it with Monson.
“Speaking with the sponsor and where we are in the session, I am confident in the sponsor’s ability to work with stakeholders to get this bill to where it needs to be,” he said. “And if not, well we’ll be able to determine that on the floor.”
