In Utah redistricting fight, plaintiffs ask judge to block Legislature’s new ‘constitutional court’

A new complaint filed in court is adding yet another wrinkle to Utah’s redistricting legal battle. 

The plaintiffs that have so far successfully sought new, court-ordered congressional boundaries for Utah have filed a new complaint in their ongoing redistricting lawsuit — alleging that the Utah Legislature has again overstepped its power. 

The League of Women Voters of Utah and Mormon Women for Ethical Government on Saturday asked 3rd District Judge Dianna Gibson to block a new law and court rule passed by the Legislature and signed by Gov. Spencer Cox earlier this month that created a “constitutional court” specifically for lawsuits challenging the state’s laws.

Together, HB392 and SJR5 created a three-judge district court panel to hear lawsuits challenging laws as unconstitutional — including Utah’s ongoing anti-gerrymandering lawsuit. 

Already, Utah’s Republican state leaders are moving to utilize that new “constitutional court” process. On Sunday, Utah Attorney General Derek Brown and the Legislature filed a notice in 3rd District Court as part of the ongoing redistricting lawsuit “that a panel of three district court judges must be convened to hear and decide” the challenge. 

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Utah leaders also filed similar notices in three other ongoing lawsuits — one that has temporarily blocked Utah’s near-total abortion ban, one that accuses state officials of not doing enough to save the Great Salt Lake, and one filed by a group of Utah teens that accuses state leaders of harming their health through fossil fuel policies. 

On Saturday, attorneys for League of Women Voters of Utah and Mormon Women for Ethical Government asked Gibson to block HB392 and SJR5, “which together would directly affect this case by creating a unilateral and arbitrary power for government litigants — and only government litigants — to remove and transfer their cases, including this case, away from constitutionally constituted single-judge district courts to unconstitutional and bespoke panels of three new judges.” 

“What’s more, when the Utah Legislature endowed itself and certain other select government officials with this breathtaking right, capriciously conferred exclusively on government litigants with no constitutional guardrails, it also tried to make that transfer purportedly immune, by legislative fiat, from any challenge or judicial review,” they wrote. 

The plaintiffs argue that the new law is unconstitutional because only state officials could access the three-judge panel, not other parties — an issue that lawmakers were warned about by retired Salt Lake City law professor Linda Smith in a public hearing before passing the bill. 

“These one-sided enactments are, by any measure, unconstitutional on multiple levels and should be enjoined,” the plaintiffs argued in their court filing. 

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They said HB392 “creates no standards or guidelines for when a case will be transferred” to the new “constitutional court” made up of three district court judges, “but rather it leaves it to the sole discretion of the Governor, Attorney General, or the Legislature.” 

“If the government likes the district judge that was drawn in a case, it can keep the matter before that single judge regardless of the statewide importance or scope of the case,” they argued. “If it dislikes the assigned judge, it can unilaterally decide to transfer the case to a three-judge panel.”

That new law violates the Utah Constitution “in several ways,” the plaintiffs allege. 

“The judiciary is a co-equal and separate branch of government,” they wrote. “While the Utah

Constitution vests the Legislature with certain powers to regulate the conduct and structure of the judiciary, it does not allow it to redefine by statute, rather than by constitutional amendment, the very meaning of constitutionally created courts. Nor does it permit the Legislature to enact statutes that treat certain litigants unequally from others, privilege the government over others, or allow arbitrary government action.” 

The plaintiffs asked Gibson to declare that both HB392 and SJR5 violate the Utah Constitution and to preliminarily and permanently block the Legislature from seeking to convene a three-judge panel. 

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In a media availability with reporters Monday, Senate President Stuart Adams, R-Layton, argued that “most judges” should be supportive of the constitutional court concept, noting that the three-judge panel is supposed to be randomly selected “so there’s no ability to have any influence” on their decision making. 

“What are they afraid of?” Adams said. “Three randomly selected judges without any influence. Why would somebody push back on that if they aren’t trying to pick the judge they want?”

Senate Majority Assistant Whip Mike McKell, R-Spanish Fork, who also works as an attorney, said “I don’t know why it would be unconstitutional.” 

While opponents of the bill creating the “constitutional court” argued it would allow the lawmakers to “forum shop” for a panel that would give them more favorable rulings, McKell argued the plaintiffs are doing just that by fighting the cases being transferred to a new three-judge panel. 

“I look at the actions taken by the plaintiffs, it’s clear to me that they want to forum shop,” McKell said. “That’s what they’re doing, that’s why they filed, that’s their intention. Make no mistake, they are forum shopping, and the three-judge panel does the opposite of that. It creates a scenario where forum shopping can’t happen.” 

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McKell added that it’s “interesting to me that these same groups that are attacking the Legislature that want the public to get involved and the public voice to be heard are doing everything they can to quash the public voice.” 

“They’re trying to take it off the ballot,” Adams added, pointing to an effort urging voters to remove their signatures from a petition to ask voters in the November election to repeal Proposition 4, an anti-gerrymanding law voters approved eight years ago to create an independent redistricting process. 

The Utah Legislature repeal and replacement of that 2018 voter-approved measure is at the heart of the state’s redistricting court battle, which ultimately led to the court-ordered map that the state’s Republican leaders have unsuccessfully tried to overturn, including in a federal lawsuit that was dismissed Monday. 

Gibson determined the Utah Legislature acted unconstitutionally when it turned Proposition 4’s independent redistricting commission into an advisory body that lawmakers could ultimately ignore — which is what they ultimately did in 2021 when they instead adopted a map that cracked Salt Lake County into four Republican districts. 

Pressed on the lawsuit’s claims that the new law creates an equal access issue, Adams said, “If that’s the case … that’s something that I would consider re-looking at.” He left the door open to another change to Utah law.  

McKell added “we were just barely sued on that. I think we want to look at it.” 

“But to be really clear, do I think it’s unconstitutional what we did? No, not at all,” McKell said. “Do I think the plaintiffs in that case are forum shopping? Absolutely. … That’s why it’s important to have a constitutional court that’s fair where there is a rotation. And I’m concerned by their actions. It’s ironic to me that they’re attacking the Legislature by clearly forum shopping.” 

Senate Majority Leader Kirk Cullimore, R-Sandy, also pushed back, saying the Utah Constitution “pretty clearly states that the Legislature” has the ability to change the courts. 

“What the structure of those courts look like is wholly within the purview of the Legislature to set up through statute,” he said. 

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