SALT LAKE CITY, February 28, 2025 ― When Utahns go to court, we go to receive decisions on some of life’s most important and complex problems ― the well-being of our children, at school or at home, whether we treated a colleague or neighbor legally or fairly, the fate of a business we worked hard to buy, or to build, and, sometimes, whether a law legitimately passed by the duly elected representatives of the people is consistent with or violative of the constitution.
And when we take those problems to court, we do so knowing only one thing: not that we will definitely win, or that the other side will surely lose, but that our problem will be heard by a judge with a trained and open mind, that we will be treated with respect by the court and its staff, and that the law as it is understood by the judge will be applied and followed, free from influence and beholden only to the law.
The courts’ promise to us is not one of outcome, but of process ― a promise that, win or lose, we will be heard, our position understood, and our claims and arguments considered ― and so will those of the other side.
To fulfill this promise, Utah’s judges leave meaningful careers as lawyers, after years of training in Utah’s law firms, Utah’s justice system, and the Utah courts, to make the decisions we entrust to them. When they are chosen to serve through Utah’s merit-based judicial selection system, our judges are assured only that there will be a never-ending supply of work to do; that at least one litigant in each matter will disagree with their ruling; that they will not have to raise funds, make campaign promises, or espouse political positions in order to continue to serve; and that they will be afforded the freedom to use their knowledge and experience to apply the law to the facts impartially.
And that freedom, that judicial independence, is all the more important when it comes to the courts’ obligation to resolve difficult questions with important but nevertheless not always clear answers, about which reasonable minds can disagree.
The citizens of Utah seem to understand this promise of a fair process, and not of a particular outcome. Based on the bills aimed at the judiciary that have been proposed this session, the Utah legislature does not.
For years, the Utah courts have surveyed court users about their perceptions of the courts’ fairness and accessibility. For years, those survey results have overwhelmingly shown that, win or lose, court users felt that they understood what happened in their case, that they were treated with courtesy and respect, that the judge listened to all sides, and that, most important of all, their hearing was fair.[1]
And since 2008, Utah’s non-partisan Judicial Performance Evaluation Commission (“JPEC”) has conducted robust professional reviews of every state judge who stands for retention election — and like the court user surveys, these reviews are based on surveys of attorneys who appear before the judges, win or lose. JPEC reviews judges’ legal ability, integrity and temperament, administrative skills, and procedural fairness. Its recommendations also are informed by public comments, judicial discipline records, and other formal performance measures. Under (current) law, no more than half of JPECs members can be of the same political party. And JPEC’s judge-by-judge results are not only published on the JPEC website, they are provided directly to voters in the official voter information pamphlets. So Utah’s voters both have this important information about our judges’ performance, and they use it – consistently voting to retain our judges at very high rates.
Information voters need to vote for or against the retention of judges already exists in Utah. A non-partisan, informed and rigorous process for the review of judicial performance, and a democratic standard for judicial retention by majority vote, already exist. And given that Utah’s less than 90 district court judges received well over 250,000 new case filings in 2024[2], perhaps the best way to ensure that the courts are responsive to the people would be to increase the number of district court judges and law clerks, so they can quickly but thoroughly decide the many cases we bring to them for decision, not to expand (or micromanage) the Utah Supreme Court.
It has been said that the bills before the legislature this session represent an attempt to bring the judiciary closer to the people. But the people already have created a system that has resulted in some of the best lawyers in Utah becoming judges. Fundamentally altering a non-partisan, merit-based system of judicial selection, review and retention by the electorate — that is, the people who use Utah’s courts in hundreds of thousands of new case filings every year ― should be the result of deliberate and sustained study, if at all, not disagreement with the outcome of specific judicial decisions.
Signed,
Justice Christine Durham (Ret.)
Access to Justice Commission Co-Chair
Amy Sorenson
Access to Justice Commission Co-Chair
[1] Utah State Courts Access and Fairness Survey, FY 2006-2017, https://www.utcourts.gov/en/court-records-publications/publications/court-publications/court-reports.html#additional
[2] https://www.utcourts.gov/content/dam/court-records-publications/publications/court-publications/court-reports/2025-CourtsAnnualReport.pdf