Utah Supreme Court disputes lawmakers' allegations that it's not productive enough
Utah Supreme Court justices John Pearce, Paige Petersen, Diana Hagen, Jill Pohlman, and Chief Justice Matthew Durrant, left to right, sit with legislators at the Capitol in Salt Lake City on the first day of the legislative session, Tuesday, Jan. 21, 2025. (Photo by Spenser Heaps for Utah News Dispatch)
As the 2025 Utah Legislature considers a slate of bills aimed at flexing legislative influence over Utah's judicial branch of government, some Utah lawmakers have accused the Utah Supreme Court of not being productive enough.
Sen. Brady Brammer, R-Pleasant Grove — a senator who is running multiple bills that have been opposed by the Utah State Bar — called the Utah Supreme Court 'woefully unproductive' in a Senate committee hearing Tuesday.
'In 2023, they were the least productive Supreme Court in America, issuing only 25 opinions. In 2022, they only issued 41,' Brammer said, adding that last year, the court issued 46 opinions, and this year so far the court has only issued one opinion.
In 2019, the year before the COVID-19 pandemic, the Utah Supreme Court issued 70 opinions.
'We have some serious concerns as to what they're doing, especially when they come to ask us for money for additional court of appeals judges,' Brammer said. 'So it seems to us that rather than take caseload from the court of appeals, they've come to the Legislature and said, 'We want you to fund our lack of productivity.''
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Brammer isn't the only lawmaker to question the Utah Supreme Court's case numbers. Earlier this week, House Majority Whip Karianne Lisonbee, R-Clearfield — who is sponsoring HB512, a bill that the judiciary opposes that would give a legislative committee the power to recommend on the ballot whether voters should retain judges or not — also called the Utah Supreme Court the 'least productive court in America' in 2023.
In response to those allegations, Tania Mashburn, director of communications for the Utah State Courts, issued a lengthy statement on Wednesday addressing the nuances of the Utah Supreme Court's case load and why it's problematic to gauge its productivity just by the number of published opinions compared to other state supreme courts.
'Comparing volumes of published opinions between states is not an apples-to-apples comparison. Different courts have different structures and publish different things,' Mashburn said.
She pointed to Wyoming as an example, noting that it doesn't have an appellate court like Utah does. 'As a result, the Wyoming Supreme Court's opinion numbers include short decisions in less complex cases, such as probation revocation and sentence modifications,' she said. 'That court also publishes certain types of summary disposition orders; Utah does not.'
Mashburn added that the length of opinions and orders can also reflect how courts differ state to state.
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'In 2024, the Wyoming Supreme Court published 139 opinions and orders with an average length of 10.49 pages,' she said. 'In 2024, the Utah Supreme Court published 47 opinions with an average length of 20.74 pages.'
Mashburn added it's also 'important to note that if the comparison is being made purely on published opinion numbers, many state supreme courts have varying numbers of justices.' She pointed to Colorado and Arizona, which both have seven justices. Those courts published 45 and 54 opinions respectively in 2024.
'However, it would be improper to infer that the five-member Utah Supreme Court is more productive than the seven-member Colorado Supreme Court,' Mashburn said, 'because we do not know their staff support level, additional constitutional responsibilities, administrative roles, and the extent of their duties to oversee the practice of law in Colorado.'
At least one lawmaker, House Majority Leader Jefferson Moss, R-Saratoga Springs, is exploring expanding the Utah Supreme Court — something Supreme Court Justice Paige Petersen, in a Judicial Council meeting on Monday, expressed concerns about, comparing it to 'court packing' on the federal level.
While Moss has said he wants to address 'growing caseloads, delays, and evolving legal complexities' facing Utah's highest court, Petersen said it's 'misinformation' and 'absolutely false' to say 'we need more members of the court because they have a backlog.'
'We haven't had a backlog for years,' she said, adding that the court did face a 'dip in case filings' during the COVID-19 pandemic, but 'that's been improving.'
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Brammer on Tuesday also asserted that the Utah Supreme Court used to publish more opinions — he said on average 70 a year, and sometimes as many as 100.
Mashburn also addressed that issue, saying other factors can influence that figure.
'The number of opinions the Court publishes in a given year is correlated with the number of appeals filed by litigants in the prior year and how many of those cases become ready to be heard by the Court (meaning that the parties have completed their briefing),' Mashburn said. 'The Court has no backlog of cases. As soon as cases are ready for oral argument, the Court schedules them.'
Additionally, after the COVID-19 pandemic caused mass disruptions in 2020, Mashburn said there was a 'big dip in the number of appeals filed with the Court and the number of those cases that were ready to be heard by the Court.'
In 2022, for example, the Utah Supreme Court received the lowest number of appellate filings of the last 10 years, she said. However, since then the number of appellate filings has steadily increased, 'and the number of opinions the Court has published each year has likewise increased, trending back toward normal.'
'Also, during the pandemic, parties in criminal appeals took much longer to complete their briefing,' Mashburn added. 'We understand that this was due to a shortage of attorneys handling criminal appeals. The consequence for the Court was that cases that normally would have been ready to be heard were not.'
Both of these issues led to a 'dip' in the number of opinions the Utah Supreme Court has published in recent years, Mashburn said.
'This was not because the Court was 'unproductive,'' she said. 'The Court heard and decided every appeal before it in which the parties had completed their briefing.'
Additionally, the Utah Supreme Court's opinion count doesn't paint a full picture of the justices' work. Mashburn said that number doesn't 'capture a lot of casework done by some members of the Court.'
Both Justice Jill Pohlman and Justice Diana Hagen joined the Utah Supreme Court in 2022, coming from the Utah Court of Appeals. As they moved over, Mashburn said they were each 'granted permission to complete their pending Court of Appeals decisions to avoid delays to the parties and for the Court of Appeals.'
'They collectively completed 53 cases for the Court of Appeals in their first years on the Supreme Court on top of their Supreme Court caseloads,' Mashburn said. 'Of course, their additional work is not included in the Supreme Court's opinion numbers. Notably, this did not cause any backlog for the Supreme Court or slow down the Court's work.'
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Additionally, Mashburn said the Utah Supreme Court has been considering cases that have been 'increasingly complex.'
'For example, the average length of an opinion in 2000 was only 5.48 pages and in 2024 it was 20.74 pages,' she said.
As for complaints that the Utah Supreme Court has only issued one opinion so far for 2025, Mashburn repeated that 'there is not a backlog of cases in the Supreme Court.'
'As soon as the parties complete their briefing on a case, the matter is scheduled for oral argument,' she said. 'The Utah Supreme Court structures its work in a September to August term, similar to the U.S. Supreme Court. The Court hears matters for each term from September to May.'
Typically, a small number of opinions are issued in the early months of the year, she said, while most opinions are issued during the summer when arguments are not typically scheduled, similar to how the U.S. Supreme Court functions.
'Five opinions from this term have already been published, with four of those being published within two to three months of being heard,' she said. 'These opinions were published in the final months of 2024.'
Mashburn also included a document detailing the Utah Supreme Court's opinion numbers and how they've been impacted by various factors. It's included below:
Supreme Court Case Information
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