Critics have sounded the alarm on Utah’s new “constitutional court,” arguing that it “represents a profound threat to the state’s constitutional system.” These concerns are misplaced.

As a scholar with expertise on the development and role of courts in the American constitutional system, I have learned it is important to look past the immediate political controversies that usually surround judicial reforms and consider carefully their impact on the way courts actually work in the long run.

What critics call the constitutional court is a three-judge panel drawn at random from the existing Utah District Courts. The Legislature, governor or attorney general can cause any case in which the state is a party to be heard by a three-judge panel instead of a single district judge.

Additionally, the attorney general is permitted by the statute to “intervene” — that is, become a party to — any civil case where one of the parties has challenged the constitutionality of a state law. This ensures that cases threatening the invalidation or suspension of a state law can be heard in the first instance by a tribunal with a state-wide perspective, with an expedited appeal directly to the Utah Supreme Court.

All these variations in structure and procedure from the standard district trial courts are within the Legislature’s discretion under Article VIII of the Utah Constitution to establish “such other courts” as the Legislature deems proper (sec. 1), and to “provide by statute” for the exercise of the Supreme Court’s appellate jurisdiction (sec. 3) and of the original and appellate jurisdiction of all other courts (sec. 5).

The use of a three-judge panel to preside over trials in no way violates the state constitution. To the contrary, Article VIII, section 6 specifically reserves to the Legislature the power to provide for the “number of judges of the district court and of other courts of record established by the Legislature …”

Critics have argued that there is an implicit principle hidden in the text to the effect that trials in the United States are presided over by single judges and not multimember panels. But the use of multimember trial courts is deeply rooted in American judicial systems. As originally constituted, the most important federal trial courts from the 1790s through the Civil War utilized three-judge panels made up of circuit-riding Supreme Court justices and federal district judges. These circuit courts were given exclusive trial jurisdiction over major federal crimes and lawsuits involving large sums.

While multimember trial courts vanished from the federal judiciary in the late-nineteenth century, Congress soon resumed their use in the early 20th century. Starting in 1910, Congress utilized three-judge District Courts to hear a broad swath of constitutional cases. Congress sought more deliberative decision-making from three-judge trial courts to mitigate the influence of forum-shopping for individual activist judges. In an increasingly complex judicial system, these multimember trials allowed expedited settlement of the questions involved by leap-frogging the intermediate courts of appeal and carrying appeals straight to the U.S. Supreme Court. This approach is still utilized to resolve legislative redistricting claims in federal courts.

Over the last decade, citing similar concerns, the states of North Carolina and Tennessee have adopted three-judge district courts to resolve constitutional challenges to state laws. A recent note in the Duke Law Journal examined the legitimacy and efficacy of this approach, concluding that while generally successful, the processes in North Carolina and Tennessee could be improved by having random selection of the judges assigned to serve on the panel. Importantly, this random selection mechanism was incorporated into Utah’s new system.

Also controversial is the power of the attorney general and other state litigants to choose whether to have relevant civil cases heard by a three-judge panel or to leave them in the ordinary district court. Whether this discretion is wise as a policy matter, I leave to others to debate. But as a constitutional matter, it passes muster. While critics have accused the government of forum-shopping by requiring a three-judge panel, the fact that the panel is randomly selected negates that concern. The government can’t know whether the panel will be friendly or not.

By contrast, plaintiffs who bring a suit in district court know precisely whether they are choosing a friendly forum or not. Allowing the state, as defendant, to remove the case to a neutral tribunal with judges from a diversity of districts is a legitimate protection of the public interest.

A determination to utilize a three-judge panel is nothing like a “special law” dictating the outcome of the case. It is instead a measure to secure the legitimate state aims of expediting litigation that threatens to suspend the operation of state laws and of ensuring that such cases are decided through deliberation by a multimember panel with a state-wide perspective. The Legislature’s constitutional authority clearly encompasses the creation of a court to achieve these aims.

Matthew Brogdon, Ph.D., is director of the Center for Constitutional Studies at Utah Valley University. The views expressed are his own and do not necessarily represent the Center or the University.

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