14-02-2025
Utah State Bar claims 5 proposed judiciary reform bills may be ‘unconstitutional'
SALT LAKE CITY () — The Utah State Bar has openly come out against several bills that are moving through Utah's Capitol Hill that, if passed, would impact the role of the judiciary branch.
The Bar said the five bills – , , , , and – may be unconstitutional because they remove powers from the judicial branch and undermine the separation of powers.
All but one bill is sponsored by (R-Pleasant Grove). The remaining bill is sponsored by Rep. Jason Kyle (R-Huntsville).
A group of 32 lawyers penned a letter to Senate and House leadership expressing concerns alongside the bar and urging lawmakers to assess the long-term implications of the forms.
'Notably, these bills will accelerate the erosion of public confidence in our judicial system and threaten the right of access to the courts of individuals and associations, including many business associations critical to the economic health of the state,' the lawyers wrote.
The Utah State Bar said it has met with several legislators to express their concerns. These lawmakers have reportedly expressed a willingness to hear from lawyers and work with the Bar to find a resolution of the concerns.
The Utah State Bar said this bill restricts the current standards for individuals and associations to file legal action on behalf of injured parties. It also gives new powers to the Utah Attorney General's Office to file civil actions of 'significant public importance' without qualifications for standing.
Sen. Brammer, the bill's sponsor, said S.B. 203 would protect the integrity of the courts and help them from becoming a 'forum de jour' for out-of-state interests. It would also maintain access to the justice system for individuals with grievances.
The State Bar, however, argues the bill attempts to change long-standing common law principles of standing. Local defense attorney Greg Skordas that the bill is 'an attempt by the legislature to make it harder for groups to challenge the constitutionality of laws they pass.'
According to the Utah State Bar, S.B. 204 would create a right of 'suspensive appeal' for government defendants when a plaintiff challenging the constitutionality of a state law has been granted an injunction. The suspensive appeal would effectively remove the injunction at the request of the defendant.
'Defendants would be able to appeal a preliminary injunction straight to the Supreme Court and the law would not be enjoined during the pendency of the appeal,' The State Bar said. 'This adds new procedure to legal standards to the existing rule governing injunctions in the Utah Code. Additionally, it appears to usurp judicial authority by placing the status of the injunction in the hands of the defendant.'
Sen. Brammer saying it simply seeks to ensure that legal tools are used in a way that respects all three branches of the government while also addressing concerns about the overuse of injunctions by courts to block laws passed by the legislature and signed by the governor.
'I believe this will help protect the integrity of the process of upholding the rule of law in Utah,' said Brammer.
The Utah State Bar said this resolution and bill work together to grant legislative auditors the authority to require the production of privileged information or information prepared in anticipation of litigation from individuals or entities subject to an audit by the legislative auditor.
'This legislation attempts to govern the practice of law by altering the nature of the attorney-client privilege and the ability for a government client to rely on the confidentiality of the communications with their counsel,' the State Bar argued.
Neither the bill nor resolution have been heard on the Senate floor as of Friday, Feb. 14.
The final bill the Utah State Bar has raised concerns over is H.B. 154, which would to retain a judge in judicial retention elections from 50% to 67%.
The Utah State Bar said this increase would be the highest in the nation, making it difficult to attract and retain qualified judges.
'This will allow outside and special interests to campaign against judges when they only have to convince one-third of the populace to vote against a judge,' said the Bar. 'No need to change what is a very successful and nationally recognized judicial retention process.'
Some Senate leaders previously expressed some doubt about the bill, which was proposed by Rep. Kyle.
Sen. Kirk Cullimore (R-Draper) he was aware of other states that have higher thresholds than Utah but was not sure the proposal passed constitutional muster based on retention elections.
'I guess it's not totally off the wall, I just haven't heard about it or thought about it in the context of Utah law or the Utah Constitution,' said Cullimore.
The list of bills seeking to make adjustments to the judicial branch comes at a time when Utah's legislative and judicial branches have been at odds.
In the summer of 2024, Utah's Supreme Court handed a blow to Utah's legislature, ruling that they when they gutted a citizen-led initiative to create an independent redistricting commission to draw new Congressional boundaries.
Utah's highest court said the move may have violated Utahn's right to 'alter and reform' their government but the case is still moving through the lower courts. House and Senate leaders both called the Supreme Court's decision 'one of the worst rulings' they have ever seen and promised judicial reforms.
The Utah legislature was dealt another blow when Utah Supreme Court justices from the 2024 November ballot. The Supreme Court argued that the legislature failed to meet a constitutionally required publication requirement, which was another decision that frustrated legislative leaders.
Lindsay Aerts contributed to this report.
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