Utah has a “constitutional court” thanks to the passage of HB392 in March. Purportedly, the three member “constitutional court” has exclusive jurisdiction in all cases dealing with the Utah Constitution or any matter the attorney general or state Legislature deem of significant public importance.

This innovative new court is ostensibly designed to streamline legal disputes, but in reality it represents a profound threat to the state’s constitutional structure. As scholars of American constitutionalism, we believe the grand principle of separation of powers and the integrity of Utah’s judicial system are both in peril.

The Utah Constitution has a lot to say about how judicial authority is to be exercised. Article VIII establishes a clear and deliberate framework for an independent judiciary, anchored by a Supreme Court that, at the time of its founding, was understood to possess the power of constitutional judicial review, which is the authority to interpret the constitution and invalidate conflicting laws. That understanding matters. Judicial review was vested in Article VIII courts by the Utah Constitution. The logical conclusion of such provisions is to negate mere laws that purport to assign an additional power of judicial review to any other private or governmental actor. The Utah Constitution’s grant of judicial review authority is exclusive, not illustrative. Yet the Utah Legislature has attempted to create a separate “constitutional court” and assigned it judicial review power by legislative fiat. This is a clear violation of the Utah Constitution.

But, of course, the only way to have an authoritative ruling that the legislatively created new shadow supreme court is in fact unconstitutional would be for the preexisting constitutionally created Supreme Court to make that determination. That would require the Court to rule on its own powers. State high courts have been called on to do that for generations. There is no one else to do it, which is why it’s called jurisdiction by necessity.

Certainly such a holding will bring forth political complaints of activist courts, legislating from the bench, etc. Judges are getting used to that. Separation of powers doctrine equips each branch with defensive powers to protect their constitutional authority. The executive has the veto, and the legislature has the purse strings, investigation and other legislative powers to protect itself. The judicial branch has only judicial review. Yet it seems that only judges are criticized for protecting their independence through their employ of their constitutional checking power. So be it.

Moreover, this judicial exclusion principle is reinforced by Article V of the Utah Constitution, which explicitly enshrines separation of powers. Unlike the federal constitution, Utah’s charter clearly prohibits one branch from exercising the core functions of another. When the Legislature creates a body and endows it with the preeminent judicial power, it violates separation of powers. A statutorily created court is, by definition, dependent on the Legislature for its existence and scope. That dependence is fundamentally incompatible with the independence required of a judicial body exercising constitutional review.

Proponents of the “constitutional court” may argue that the Legislature has broad authority to structure the court system. That authority is not unlimited. State constitutions, unlike the U.S. Constitution, are primarily documents of limitation. Those limitations are decisive in this case. The Utah Constitution specifies the courts that may exist and the powers they may wield. It does not authorize the Legislature to create parallel institutions that replicate or dilute those powers.

To be clear, the Utah Constitution does authorize the Legislature to create by statute courts other than the constitutionally-mandated Supreme Court and district courts. This affirmative grant of legislative powers, also by negative implication, works to limit statutory courts’ exercise of judicial review, which is constitutionally assigned exclusively to the Supreme Court. Otherwise, if the Legislature can create any courts it wants, with whatever powers it wants, there would have been no reason to include a textual clause empowering it to create courts other than the Supreme Court and district courts.

Finally, the judicial exclusion principle is supported by the Utah Constitution’s Declaration of Rights, which concludes with a call for “frequent recurrence to fundamental principles.” That language is not merely ornamental. The Utah Constitution has been heavily edited since its inception, yet those words have remained. They are a directive to guard against precisely this kind of constitutional drift.

When lawmakers attempt to reassign core constitutional functions through legislation, it is the duty of the people of Utah to push back.

Perhaps there are strong arguments for a new judicial body to hear issues related to the Utah Constitution or matters of serious public interest. If so, a new constitutional court ought to be created in the right way: via constitutional amendment. Until then, the “constitutional court” established in HB392 is unconstitutional.

Savannah Eccles Johnston is an assistant professor of constitutional government, civics and law at Utah Valley University.

Robert Williams is a distinguished professor emeritus at the Rutgers University School of Law.

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