Utah News Dispatch
Utah governor swiftly signs bill to create 3-judge ‘constitutional court’ to hear challenges to laws
The Scott Matheson Courthouse in Salt Lake City is pictured on Wednesday, Jan. 3, 2024. (Photo by Spenser Heaps for Utah News Dispatch)
Editor’s note: This story was updated after the governor signed the bill.
The Utah Legislature sent another bill impacting the judiciary to Gov. Spencer Cox’s desk on Friday. Within hours, the governor signed it without publicly weighing in.
The Utah House on Friday morning gave final legislative approval to HB392, a bill to create a rotating, three-judge “constitutional court” to hear lawsuits that challenge state laws as unconstitutional. The governor signed the bill at 4:44 p.m.
Cox’s office did not immediately respond to requests for comment on the bill, either Friday morning or evening.
An earlier version of the bill raised a chorus of concerns from legal professionals worried that it would allow “forum shopping” because it would have created a new statewide trial court — picked by the governor and confirmed by the Senate — that would have “exclusive jurisdiction” over those types of lawsuits.
But the bill’s sponsor, Rep. Matt MacPherson, R-West Valley City, changed the bill earlier this month to require the three judges that would serve on the panel for each case to be randomly selected out of a pool of district court judges from districts across the state.
“This bill, what it does today, is it establishes that when a civil action is brought against the Legislature or the governor or the Attorney General, or they are a party to these cases … that there is the opportunity for the entity to remove these cases from a single district judge and have it be heard by a panel,” MacPherson said in a Senate committee last week.
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The bill also directs the Utah Judicial Council, which administers the judiciary, to create rules on how district court judges would be assigned and who would be qualified.
Under the bill, the Utah Supreme Court would have “exclusive and original appellate jurisdiction” over a judgement or order from the three-judge constitutional court.
The original version of the bill would have cost the state more than $2.3 million to hire three judges for the new court. But the version ultimately approved by lawmakers — which doesn’t require hiring of three judges but rather pulls from a pool of existing district court judges — would now cost about $633,600 ($545,50 in ongoing money and $88,100 in one-time money) to pay for three law clerks, one case manager and IT system changes.
As the bill was debated in a Senate committee last week, a representative for the state’s judiciary and another for the Utah State Bar expressed gratitude to MacPherson for working to address some of their concerns with his original bill, but they also said it still had problems.
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Michael Drexel, assistant state court administrator at the Administrative Office of the Courts, said he appreciated lawmakers’ goal “to create a panel system that can apply more judicial minds to some of the toughest questions that are being litigated in the state,” as well as “distributing judicial decision-making across a wider geographic footprint so that you have judges from various parts of the state who get to weigh in on these questions of state importance.”
Drexel also acknowledged that lawmakers want to increase “confidence in the (court’s) decisions, or maybe said differently, reducing the inclination of some to be dismissive about decisions with which they don’t agree.”
“These seem like noble goals,” he said, adding that the judiciary wants to be part of that conversation and that “we’ve been grateful that you’ve heard our feedback and made some adjustments.”
Drexel said their “primary concern” in the original version of the bill has been addressed by changing it to be a randomly selected panel. However, he said “we’re concerned about the potential large number of possible panel eligible cases that might exist,” noting that the bill allows a “broad swath of people” to be eligible as a “state official” or state entity that could trigger a panel.
He also noted it’s “unlikely to accelerate resolution” of constitutional challenges, even though during debate of the bill some lawmakers expressed frustrations with how long some cases — including the lawsuit that put Utah’s near-total abortion ban on hold in the interim — have been taken to adjudicate.
“We still have one concern, and it’s on principle,” Drexel said, pointing to a companion resolution, HJR21, also sponsored by MacPherson, which would change rules of civil procedure to allow the three-judge panel to be exercised in already ongoing cases.
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“Which means that after substantive decisions have been made in a case by a judge, a government party could reach into that case with the panel process and say, ‘We want to remove that judge and have a panel appointed,’” he said. “And that would be an unprecedented ability of litigants to do in a case.”
Under existing Utah law, a judge can be disqualified due to bias or a conflict of interest, and parties already have the ability to remove a judge early in the case, he noted.
“But there’s never been, in the rules, the ability to remove a judge after they’ve made substantive decisions,” Drexel said. “And I worry that, in having that be part of this project, it will cause some people to have a lesser view of it. I think there’s a lot of good in this project, but if it’s about removing the judge in pending cases, that can taint people’s understanding of what’s trying to be accomplished here.”
Drexel encouraged more conversations with lawmakers about that concern. As of Friday, HJR21 was still waiting to receive a public hearing.
MacPherson’s “constitutional court” bill will take effect May 6. If HJR21 also passes, it’s possible that the Utah Legislature could invoke the new three-judge panel to hear the state’s ongoing redistricting court battle, as well as other ongoing challenges to Utah laws, including the abortion ban, the state’s school choice program Utah Fits All, and others.
The Utah State Bar also continues to oppose the bill.
When taken together with HJR21 and another companion bill, SJR5 — which has also cleared its final legislative hurdle on Friday — to change civil rules of procedure to facilitate the new panel, the Bar said in a statement issued Thursday that MacPherson’s bill “would allow parties to repeatedly disqualify or ‘strike’ judges from specially created panels and replace them with judges drawn from other districts.”
“This structure invites strategic filings designed to obtain more favorable outcomes rather than impartial adjudication and risks subjecting courts to excessive motions practice that undermines judicial efficiency and impartiality,” the Bar said, while also noting on its website that it risks eroding “public confidence in fair and unbiased court proceedings.”
Linda Smith, a Salt Lake City resident and a retired law professor, also warned lawmakers that, even though MacPherson’s changes were an improvement to the original version of the bill, it could possibly invite its own constitutional challenge because only state officials could request the three-judge panel, not other parties.
“What we can’t have is the 800-pound gorilla deciding which cases go,” she said. “You can’t have a system where one party is privileged and the other party has no say.”
Smith posed a possible scenario in which the state attorney general likes the district court judge that took up a constitutional challenge and decides not to invoke a three-judge constitutional court panel, but the plaintiffs would not have the opportunity to do so.
“Maybe strategically an attorney general goes, ‘Oh, I like the judge we’ve drawn. This judge isn’t bold enough to do anything … I’m not going to seek to remove this case,’” she said. “And there you’re stuck with the plaintiff, perhaps, wanting a more serious look.”
Utah State Bar warns against lawmakers’ ‘aggressive’ moves to change courts
After winning initial approval from the House last week on a 56-15 vote, HB392 advanced to the Senate. The Senate Revenue and Taxation Committee voted 4-1 to advance it to the Senate floor.
The Senate on Thursday voted 22-7 to approve the bill, but after changing it to grant the attorney general an “unconditional right” to intervene in a case in district court “upon notice that a party is challenging the constitutionality of a statute.”
The bill’s Senate sponsor, Senate Majority Assistant Whip Mike McKell, R-Spanish Fork, said that change is consistent with the state’s current rules of civil procedure. Because the attorney general is often involved in constitutional cases, “having them having the ability to intervene makes sense,” McKell said.
The concerns about equal access to the three-panel court from all parties — not just state actors like the attorney general, the governor and the Legislature — were not addressed before the bill won final approval from the House on Friday on a 55-16 vote.
When pressed on those equal access issues in an availability with reporters on Thursday, McKell said he didn’t see why there would be a constitutional challenge to the bill. He noted that anyone unhappy with the results from the constitutional court has “the same remedy” — an appeal to the Utah Supreme Court.
Senate President Stuart Adams, R-Layton, also argued the bill is structured to avoid any concerns of “forum shopping.”
“So I wonder what the constitutional challenge would be if (the judges) are random and we can’t pick them,” Adams said.
In both chambers, the bill passed mostly along party lines, with most Republicans voting in favor and Democrats voting against.
