Within hours of striking down Utah’s congressional maps and directing the Legislature to draw new ones, Judge Dianna Gibson was already taking heat, with lawmakers clamoring to hold her accountable for her “judicial activism,” including an insinuation she could be removed from the bench.
In a blow to the Legislature, Gibson ruled Monday evening that citizens had a constitutional right to put constraints on the redistricting process, which they did when they passed the 2018 Better Boundaries initiative. The Legislature violated that right, she wrote, when it repealed those limitations, ignored maps drawn by an independent redistricting commission and adopted its own maps.
Those new boundaries split Democrat-leaning areas of Salt Lake County into four separate congressional districts and created safe seats for Republican House members.
“Judge Gibson took 76 single spaced pages to justify ignoring plain language of the Utah Constitution,” Sen. Daniel McCay wrote on X Monday night. “Could Judge Gibson be the first judicial removal for ignoring the Utah Constitution that she took an oath to uphold?”
McCay attached an image of Article IX, Section 1 of the Utah Constitution that states that after receiving Census figures, “the Legislature shall divide the state into congressional, legislative, and other districts accordingly.”
Attorneys for the Legislature argued the provision gives the Legislature sole power to draw political boundaries.
Gibson addressed that contention, writing at considerable length that, while the Legislature does conduct redistricting, the constitutional provision McCay referenced was added to the Constitution in 2008 to establish when redistricting should occur and that it actually limits the Legislature’s authority.
Nothing in the provision, she wrote, gives the Legislature the sole authority to redistrict, nor does it exclude the public from exercising its “co-equal legislative power” guaranteed in the Utah Constitution — a power exercised when voters passed Proposition 4. That 2018 ballot initiative-turned law creates standards for the Legislature to abide by when redistricting, including banning partisan gerrymandering.
“Neither the U.S. Constitution nor the Utah Constitution grants sole and exclusive authority over redistricting to the Legislature. … The people have the fundamental constitution[al] right and authority to propose redistricting legislation that is binding on the Legislature,” she wrote.
She gave legislators 30 days to draw new maps.
“You’ve got a citizen Legislature and the judge said, ‘either you do this in 30 days or I will do it for you.’ I do not see that in the Constitution,” McCay said in an interview.
More broadly, McCay said he’s heard from several colleagues who have “concerns that the judiciary feels it is entitled at the moment,” given some of its recent decisions.
“I don’t know that this necessarily warrants removal, but I do think there needs to be this conversation about where are we going and what is the court’s purpose here,” he said. “Where are they trying to lead us, because clearly, they are the ones making the policy. It’s not the Legislature.”
McCay was not the only Republican blasting Gibson’s ruling.
State Republican Party Chair Rob Axson called it “Judicial activism in action.” U.S. Sen. Mike Lee on X called it “a judicial takeover of the political process — one designed by leftists to advance the electoral prospects of the Democratic Party.” And state Sen. John Johnson, R-North Ogden, called it “judicial legislation” and “an abuse of power.”
“Utah will not be governed by judicial fiat,” Johnson wrote on social media. “If [judges] persist in substituting personal preference for constitutional principle, then the Legislature has not only the right but the duty to hold them accountable.”
Gibson was nominated by Republican Gov. Gary Herbert in October 2018, received a unanimous vote by the Senate Judicial Confirmation Committee and was confirmed unanimously by the full Senate. She was a finalist for a vacancy on the Utah Supreme Court in 2022.
She was vetted and recommended for both nominations by a nominating commission made up of members appointed by the governor.
The Judicial Performance Evaluation Commission voted unanimously in 2022 that she should be retained, and 75% of voters were in favor of keeping her on the bench. She will next be up for retention in 2028.
Democratic Sen. Nate Blouin, D-Millcreek, said in an interview that GOP lawmakers’ talk of impeaching judges who rule against them “is par for the course at this point for Republicans in this state. … When they don’t get their way, they’re going to press every single lever they have.”
“I think that’s totally inappropriate and just so wild that these judges have come through a confirmation and appointment process that is entirely controlled by Republicans and they’re still accusing them of being liberal activist judges,” Blouin said.
More broadly, a series of court rulings stopping key parts of the supermajority Republican agenda — like blocking a law that outlawed almost all abortions, preventing a ban on transgender girls playing high school sports, keeping the Legislature from repealing Proposition 4, voiding a constitutional amendment seeking to overturn the Proposition 4 ruling — have sparked a backlash, prompting a wide-ranging effort from legislators to exert more control over the judiciary.
Lawmakers have discussed adding justices to the Utah Supreme Court and having judges elected. They proposed letting the Legislature recommend whether specific judges should be retained or not and requiring judges to get a supermajority to win retention.
Earlier this year, Gov. Spencer Cox vetoed a bill requiring him to appoint, and the Senate confirm, the Supreme Court’s chief justice out of concern it would put too much political pressure on the justices. Currently, the justices select their own chief.
But now a revised version of the bill is expected to pass in a special session next month, with Cox on board, after the sponsor agreed to extend the chief justice’s term from four to eight years with no reappointment possible.
In Utah, judges can be removed through the impeachment process for, per Utah’s Constitution, “high crimes, misdemeanors, or malfeasance in office.” The House initiates the process and, if a judge is impeached in the House by a two-thirds vote, the Senate conducts a trial and votes on removal from office.
Gibson is just the latest Utah judge to be targeted over rulings that have upset conservative lawmakers.
In May, House Speaker Mike Schultz, R-Hoooper, demanded the resignation of 7th District Judge Don Torgerson after Torgerson did not impose additional jail time beyond the 112 days already served, plus four years probation, for a defendant convicted of having child sex abuse videos. Rep. Karianne Lisonbee, R-Clearfield, said impeachment was being considered in the case. And in June, KSL reported that Schultz was joined by House Minority Leader Angela Romero, D-Salt Lake City, in calling for his resignation.
But no Utah judge has been impeached.