SALT LAKE CITY — The state's top court has signaled it may take up a series of legal challenges to a new law the Utah State Legislature passed, creating a special three-judge panel to hear specific lawsuits raising constitutional questions or challenging new laws.
A review of the appellate court dockets by FOX 13 News found the Utah Supreme Court requested attorneys file briefings in litigation over Utah's near-total abortion ban and fossil fuel policies. Both of those cases have been moved to the newly created three-judge panel by the Utah Attorney General's Office, instead of the original judges assigned to hear them.
"We take it as a promising sign they’ve called for briefing on our petition for extraordinary writ," said attorney Andrew Welle of Our Children's Trust, which is representing a group of teenagers suing Utah's Division of Oil, Gas & Mining over state policies on fossil fuels that they allege have contributed to climate change and harmed their health.
The law was passed by the legislature earlier this year. It creates a special panel of judges from across the state to hear legal challenges to laws the legislature passes or Utah's constitution. As soon as it was signed into law by Governor Spencer Cox, the Utah Attorney General's Office filed motions to have lawsuits over abortion rights, climate change, the Great Salt Lake and independent redistricting moved from a single judge hearing the case to the panels.
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In each of those lawsuits, the plaintiffs have filed appeals challenging the special panel of judges and the new law. But the Utah Supreme Court has so far only requested briefing in Planned Parenthood Association of Utah's lawsuit and Natalie R. v. Utah Division of Oil, Gas & Mining. It is a sign that the Court may ultimately take up the legal challenges and decide if the newly passed law is even constitutional.
The Utah Attorney General's Office, which is defending the state against all these legal challenges, declined to comment on any appeals to the Supreme Court. Shireen Ghorbani, the CEO of Planned Parenthood Association of Utah, which is suing over Utah's near-total abortion ban, calls the new law "government overreach."
"Utahns should be very concerned and paying close attention to the ways in which this supermajority legislature and, frankly, our governor, want to meddle in our court system," she told FOX 13 News. "And they do it session after session, as they pass laws that really question if we have constitutional rights to make decisions about, for example, our bodies, our families and our futures."
Welle said Utah's constitution "is clear that district courts are composed of single judges hearing single cases."
"The state is attempting to change the rules of the game mid-game in these cases and have them transferred away from judges who have already been presiding over them," he told FOX 13 News.
But Rep. Matt MacPherson, R-West Valley City, who sponsored the bill, told FOX 13 News on Thursday he believes it is the plaintiffs who are playing games. He said the new law is designed to help stop lawsuits from being filed only in Salt Lake City's 3rd District Court, where he believed plaintiffs often felt they'd get better treatment.
"It seemed like parties were bringing cases trying to get particular judges, trying to forum shop in a way that would give them the best possible outcome. In reality, we want the judiciary to blindly look at these cases," he said.
Rep. MacPherson originally proposed a "constitutional court," which would exclusively hear challenges to state laws or constitutional issues. After negotiations over the bill, including with the Utah State Courts, he said it was modified to allow the three-judge panel that any side could seek.
Rep. MacPherson said he was glad to hear the Utah Supreme Court might consider the challenges, because it meant cases that had been stalled in the courts for years might finally move forward. He also insisted that what his bill accomplished is legal and within the power of the legislature.
But if the courts strike down the three judge panel?
"We can still establish a constitutional court, that is clearly within the purview of the constitution," Rep. MacPherson said. "It allows the legislature to create a court, and to set its jurisdiction. We would simply create a brand new court and its jurisdiction would be these constitutional issues."
Ghorbani said the legislature's actions should concern Utahns.
"They simply cannot stop themselves from not only wanting to be legislators and executives, they also want to be judges and juries," she said.
The League of Women Voters of Utah is also asking the Utah Supreme Court to hear their challenges to the three judge panel law. The Court has not yet indicated if it will consider their challenge, but it recently rejected the Utah State Legislature's efforts to halt the new congressional map that emerged from their lawsuit.
"We would love to have them look at whether it's constitutional," League President Katharine Biele told FOX 13 News on Thursday. "Because it's not."
