Feb 24, 2023 - News

Republican-led measure would upend Utah's judicial nominating process

Illustration of a silhouetted scales of justice, with the plates moving up and down.

Illustration: Brendan Lynch/Axios

Some Utah attorneys fear a proposed bill that seeks to transform how judges are selected would upend the state's judicial branch of government.

How it works: The commission vets and recommends judges to fill judicial vacancies in appellate, judicial and juvenile courts to the governor. They are comprised of seven members each. Each commissioner is selected by the governor.

  • Currently, commissioners must be residents of the judicial district they represent, and no more than four members can come from the same political party.
  • The governor is also required to appoint two attorneys recommended by the Utah State Bar.
  • An eighth non-voting member appointed by the Judicial Council is also mandatory on the commission.

Details: SB 129, co-sponsored by state Sen. Kirk Cullimore (R-Sandy), would strike those requirements.

  • It would instead require the governor to select two practicing or retired attorneys for the commission, per the bill's latest substitute introduced this week.
  • Cullimore told Axios the measure would provide more discretion for the governor to pick the most qualified people.

Why it matters: Utah's executive and legislative branches have long been dominated by Republicans. SB 129 critics say the state's judicial branch is in danger of losing its neutrality if the proposal passes.

What they're saying: "There are attorneys who feel like the [Utah State Bar] doesn't necessarily represent all attorneys," he said.

  • Cullimore, an eviction lawyer, also noted the state constitution requires judges to be selected based on their fitness, not political affiliation.

The other side: Salt Lake County District Attorney Sim Gill (D) called Cullimore's bill "political gerrymandering," in an interview with Axios.

  • "SB 129 will remove the guardrails that make the Utah nominating commission nonpartisan," he said.
  • If the bill passes, Gill said he fears it would erode the state judicial system's integrity.

Utah's Bar also opposes the measure, calling it a "contravention of established best practices."

  • "Picking judges is such a crucial part of having a good democracy that runs in a very fair, nonpartisan way," Utah State Bar president Kristin Woods told Axios. "We think the current system does that, and there's [no reason] to mess with it."
  • She worries cutting the Bar and Judicial Council from making recommendations will push judicial selections to be more partisan.
  • Woods, who practices law in rural Utah, also expressed concerns about removing the condition requiring commissioners to live in their respective judicial districts.

Context: The bill comes nearly a year after Utah judges temporarily halted two high-profile, GOP-led measures that would have barred transgender girls from competing on school sports teams matching their gender identity and another banning abortions in Utah.

  • Meanwhile, Republicans are also eyeing a resolution that would amend state court rules by targeting injunctions blocking laws passed by the Legislature, per The Salt Lake Tribune.
  • The hold on Utah's abortion "trigger" law — coupled with the proposed resolution — makes Gill believe Cullimore's legislation an "attack" on the judiciary branch."
  • "It's a reactionary move to a political outcome that some people have desired," he said.
  • Yes, but: Cullimore said behind-the-scenes work on the bill began two years ago, predating the abortion "trigger" law's hold.

The latest: The bill passed the Utah Senate this week on party lines 20-6. It now heads to the House Judiciary Committee for consideration.

  • Woods said the Bar was still striving to work with Cullimore to make changes.
  • Utah Gov. Spencer Cox told reporters last week he supported the bill.
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