Utah’s court system lacks ‘accountability’ and needs change, legislative audits say

Legislative auditors on Thursday released a slate of four reports that found a lack of “accountability” across the governing structures that make up Utah’s judiciary. 

The audits — which come during a time of ongoing tension between the GOP-controlled Utah Legislature and the courts in the wake of rulings that have frustrated Republican lawmakers — recommended a long slate of changes to improve Utah’s court system, including when it comes to investigating judges and ensuring voters are equipped to hold them accountable.

In recent years — despite cries of court packing and the concerns of encroaching on the judiciary’s independence — the Utah Legislature has already expanded Utah Supreme Court from five to seven seats and given the governor and Senate say over who the high court’s next chief justice will be. 

The new slate of audits may lay the foundation for lawmakers to make more changes to the judiciary that could come as soon as the upcoming legislative session that begins in January. 

While reviewing the audits in the Legislative Audit Subcommittee on Thursday afternoon, House Speaker Mike Schultz applauded auditors for their work while thanking judiciary leaders for their “willingness to work together” on the audit’s recommendations. He also acknowledged the ongoing tension between the branches. 

“I know we’ve been in some challenging times,” said the Republican lawmaker, who has been one of the leading voices calling for more transparency and accountability in the courts in recent years. 

Schultz added that he “fully supports” independence of the judicial branch. At the same time, he said Utah’s three branches of government “all have the responsibility, and it’s set up this way … to hold the other branch of government accountable.” 

In their reports, auditors zeroed in on the Judicial Conduct Commission and the Judicial Performance Evaluation Commission, the bodies tasked with investigating judges for misconduct and evaluating their job performances. 

Notably, it’s the first time in 20 years legislative auditors have evaluated the Judicial Conduct Commission.

In the JCC, they found “governance gaps” that “limit confidence in investigations and decisions,” and “weak data practices” that “limit accountability and transparency,” according to the audit report. Auditors also determined that JPEC’s judge evaluations have “significant weaknesses, and the process falls short of providing complete and accurate information to voters.” 

In another report, auditors also critiqued the performance of the state court system as a whole, calling out “inconsistent leadership” that have led to “sentencing disparities,” and a question mark around whether Utah’s sentencing guidelines “are achieving their intended purpose.”

JCC audit calls out recusal, disqualification issues related to Hagen resignation

The audit of the JCC also comes after a controversy that led to the recent resignation of Utah Supreme Court Justice Diana Hagen. 

Hagen resigned after the Utah House, in response to a public records request from KSL, released a complaint that was previously dismissed by the JCC. That complaint alleged Hagen had an extramarital affair with an attorney involved in the state’s high-profile redistricting case. 

The Judicial Conduct Commission had dismissed the complaint as lacking evidence and credibility, but Gov. Spencer Cox and Utah’s top Republican legislative leaders called for an independent investigation into the claims after the story was reported. Hagen denied the allegations, but to avoid dragging her family into the independent investigation, she resigned. 

The audit did not name Hagen specifically, but alluded to a “recent case before the JCC involving a member of the Utah State Supreme Court” as an example of why the commission should write clearer rules for when a JCC member should be disqualified.

As previously reported, the JCC’s Cheylynn Hayman — whom Hagen has named as a friend and included on her recusal list — recused herself from the JCC vote to dismiss the allegations against Hagen. 

Auditors, however, noted in their report that “a commissioner commented on the character of the complainant before recusing from further participation.” 

“Disclosing personal relationships with individuals involved in the matter is common and expected,” auditors wrote. “However, this example was unusual because the commissioner used the disclosure to also raise questions about the credibility of the complaint. This example illustrates the risks to impartiality that can arise when policies do not clearly define the scope and purpose of disclosures made before recusal.”

In a written response to the audit, JCC Executive Director Alex Peterson agreed with the auditors’ recommendations and included details on their plans to implement the changes. 

“As your audit acknowledges, we are an extremely small agency that has not been audited by your office in over 20 years,” Peterson wrote. “While the Judicial Conduct Commission has been successfully meeting its statutory and constitutional obligations, we understand there is always room for improving our processes. Accordingly, we sincerely appreciate the personnel time, energy, and effort put into this audit.”

Shortly after Hagen resigned in May, Utah’s top Republican leaders including Gov. Spencer Cox, Senate President Stuart Adam and House Speaker Mike Schultz  — along with former Utah Supreme Court Justice Matthew Durrant, before he retired — all issued a  joint statement presenting a united front to strengthen “accountability” in the Judicial Conduct Commission. 

“The judicial, executive, and legislative branches are committed to working together on potential reforms to the Judicial Conduct Commission — ensuring it upholds the highest standards of accountability and earns the confidence of the people of Utah,” the joint statement said without elaborating on what those potential reforms could be. 

Legislative auditors’ recommendations are likely to inform many of those coming changes. 

Auditors recommend considering changing Judicial Council membership

 In a fourth report taking a broader look at the judiciary’s independence and accountability, auditors said that “although judicial independence is needed, stronger accountability can improve judicial governance and strengthen public confidence in the court system.” 

“The issues in the judiciary share a common cause: an approach that has traditionally placed greater emphasis on judicial independence than accountability,” auditors wrote. 

As part of a long list of recommendations to improve Utah’s court system — many of which were operational and that judiciary leaders generally agreed with — one stuck out as controversial. 

Auditors recommended that the Legislature “consider reviewing statute” to determine whether to add representation from the executive and legislative branches to the Judicial Council, the policy-making body for the judiciary that has constitutional authority to adopt rules for court administration. The council also sets standards for judicial performance, court facilities, and other operations across all levels of the state’s court system.

“This could help promote broader accountability in judicial governance,” auditors wrote. 

Schultz, during Thursday’s committee meeting, said he had some “concerns in regards to the makeup of the Judicial Council” based on the audit, but also because of its size, calling it “problematic.” 

The Judicial Council, according to the judiciary’s website, currently has 16 members. The Utah Supreme Court’s chief justice serves as the chair, while other members include one other Supreme Court justice, one Court of Appeals Judge, six District Court judges, three Juvenile Court judges, three Justice Court judges, and a state bar representative. 

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One of the committee’s Democrats, House Minority Leader Angela Romero, D-Salt Lake City, urged lawmakers to be “careful” when considering changes to the Judicial Council. 

“We want to make sure that we, as the Legislature, are respecting that independence, and we’re also not putting together a board or a commission that are people that are group thinkers or people that want to appease us as legislators.” 

Senate Minority Leader Luz Escamilla, D-Salt Lake City, also questioned whether the Utah Constitution would allow legislative appointments on that board, and if so, whether they could ensure those appointments are “bipartisan.” 

While the Utah Constitution creates the Judicial Council, its makeup and membership is determined under state law, auditors said. 

The Utah Constitution says the Judicial Council “shall consist of the chief justice of the Supreme Court, as presiding officer, and other justices, judges, and other persons as provided by statute. There shall be at least one representative on the Judicial Council from each court established by the Constitution or by statute.”

State Court Administrator Ron Gordon told the committee’s lawmakers that the judiciary has “no argument that the Legislature is authorized by the Constitution to establish that membership” of the Judicial Council. 

“We would just want to avoid anything that could have the effect, or even the appearance, of infusing partisan politics in the governance of the judiciary,” Gordon said. 

Associate chief justice raises concerns of keeping judiciary ‘free of political influence’

In a written response to that recommendation, Judicial Council leaders — including the current chair of that council, Utah Supreme Court Associate Chief Justice Jill Pohlman — pushed back, warning it could upset the balance of powers between the three branches of government.

“The Judicial Council acknowledges and respects the authority of the Legislature to supplement the constitutional membership requirements,” the judiciary’s response said. “The Judicial Council believes that representation or membership from the executive or legislative branches may violate principles of separation of powers and may undermine the ability of the Judiciary to accomplish its work free of political influence.”

However, Pohlman, in a letter responding to the audit’s recommendations, agreed with most of the auditor’s other recommendations.

“We agree that there are opportunities to strengthen the Judiciary’s governance processes, use of data and performance measures, judicial education, and organizational accountability,” Pohlman wrote. 

She noted that the judiciary’s written responses to the recommendations “identify the work already underway, and the steps we intend to take moving forward.” 

“We believe administration and organizational accountability can be strengthened while we continue to respect the organizational structure of the judicial branch and preserve the independence of judges in deciding individual cases based on the law and facts presented,” Pohlman wrote. 

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