Tuesday, February 11, 2014 | 2 comments

Potential Court Reform in Utah

By Josh Daniels

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As we explained in our asset forfeiture policy analysis, “policing for profit” is a problematic element in law enforcement. Similarly, there is a concern that local justice courts in Utah can prosecute and adjudicate for profit as well. Since justice courts are created by cities and counties, it is in the interest of the sponsoring local government entity to ensure that the court brings in revenue from fines and forfeitures. To correct this problem, there is a legislative proposal to implement state circuit courts in Utah to hear criminal misdemeanors, removing them entirely from justice courts.

Representative Jeremy Peterson has introduced HB 319 to rebalance the type of cases heard by justice and district courts in Utah. The bill came out of the interim meeting of the judiciary committee last fall. The proposed circuit courts would take over jurisdiction from justice courts for criminal matters leaving the justice courts to handle only civil violations and municipal infractions. Peterson’s proposal aims to correct many problems with the current system.

The most common criticisms of the current system center on the structural challenges between the justice and district courts. Representative Peterson compiled research on the existing court case loads and the problems facing these courts. In Utah, justice courts are not considered courts of record and therefore are not subject to appellate review. Instead, all cases in justice court are granted the right of “trial de novo” (trial anew) which allows a complete retrial in a district court rather than a more traditional appeal. This leads to inefficiency as the district court tries these cases in a duplicitous manner and at additional cost to the state. Additionally, some are concerned that misdemeanor criminal cases are being heard by judges who might not have specific law training since a law degree is not required for justice court judges. We consider this point especially problematic. To emphasize this further: a justice court judge need not be an attorney, and therefore may not understand the intricacies of the law (such as the fourth amendment)—and these judges can currently issue warrants, including forcible entry warrants authorizing a home raid against a person’s home.

Additional structural issues include the way district courts delegate significant family law issues to unelected commissioners for hearing. During interim committee discussion, Representative LaVar Christensen pointed out inequities in the system that allow these commissioners to effectively “terminate God-given natural parental rights” with no right to a jury trial during hearings. This stands in contrast to misdemeanor criminal cases where the smallest offenses include a right to a jury trial. Moreover, when a commissioner conducts a hearing, witnesses and sworn testimony are not required as they might otherwise be in a formal legal proceeding. Because these commissioners are not vetted and scrutinized the same way as judges and are not accountable to the people through retention elections, these inequities become even more concerning.

In the recent past, many have expressed waning faith in justice courts as there was a public perception that the courts were a form of legal extortion for local governments merely raising revenue rather than administering justice fairly. The issue came to a head after one man filed a lawsuit claiming justice courts are unconstitutional because they violate the separation of powers principle in the Utah Constitution. While the Utah Supreme Court did not agree and ruled against the man in the case, the courts took notice of the risk for conflicts of interest.

In response to these criticisms and negative perceptions by the public, the judicial council studied the issue and made a number of recommendations that became proposed legislation in 2008. That year, the Chief Justice of the Utah Supreme Court made justice court reform a major part of her annual speech to the legislature. She urged support of Senator Lyle Hillyard’s bill aimed at increasing the independence of these courts. SB72 in 2008 made a number of changes including implementing retention elections so that judges would no longer serve at the pleasure of the mayor and city council. Despite overwhelming support from the Chief Justice, the Utah Association of Counties and the Utah League of Cities and Towns still opposed the bill and lobbied against it. This is not surprising considering these special interest groups likely knew the justice courts had become profit centers for local government and they did not want to lose the proceeds of this arrangement. Despite their heavy lobbying, the bill passed unanimously through both the Senate committee and Senate floor and was passed by a majority in the House and was signed into law that year. The new reforms increased the independence of justice courts but did not change the issues regarding misdemeanor cases and de novo retrials.

Representative Peterson’s current bill aims to further improve the fair and efficient administration of justice by implementing circuit courts to hear criminal misdemeanors currently heard by justice courts and family law cases currently heard by district court commissioners. This a positive change for justice in Utah and would correct the previous systemic structural problems in both the justice and district courts. This will ensure that misdemeanor trials are subject to appellate review and that legal protections and evidentiary rules are followed in family law cases.

We feel that fundamental rights and liberties should always be well protected by a system of justice that is fair and incorporates substantive legal protections. This reform promises to do that. Additionally, in the chance that this broad set of changes does not pass this session, Representative Peterson has also introduced legislation creating a task force to study these issues and make recommendations for reform. Such a study would be welcome and may yield an even better and more thorough set of changes for Utah’s justice system. Given the significant power a court has to act in the extinguishment of life, liberty, and property, it is imperative that the legislature ensures that both structure and procedure allow for appropriate due process and safeguards for each Utahn.

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About the Author

Josh Daniels is a policy advisor for the Libertas Institute. He graduated with a B.A. in Political Science from Brigham Young University and with a J.D. from the University of Houston Law Center. Previously, he worked for three years as an aide to US Congressman Pete Olson and served for eight years in the United States Marine Corps.


1 comments
Commenter88
Commenter88

Great article, even if I came to it belatedly. As a local citizen, I have found through personal experience that what is asserted by Rep. Peterson is true and I am encouraged by his efforts (if not altogether amazed considering the inertia of "court efficiency" in generating revenue and minimizing costs at the expense of constitutional protections).

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  1. […] this past legislative session, Representative Jeremy Peterson sponsored a bill to reform this system. The concerns he expressed were articulated last fall in a blog post he wrote. For […]

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