Ex-Utah Supreme Court justice urges voters to retain judges amid push to unseat her former colleague

Former Utah Supreme Court Justice Diana Hagen is speaking out on social media ahead of next week’s election, urging Utah voters to retain judges in order to preserve an “independent, non-political judiciary.” 

“Do you believe in the Utah Constitution’s promise of a fair, independent and non-political judiciary?” Hagen said in a video posted to her LinkedIn account on Tuesday, a week before Election Day. 

“I do. But some people want judges to behave like politicians,” she said. “They want them to make decisions based on their political views instead of based on the law. And those people are going to vote ‘no’ on the judges on their ballot, in the hopes that the next judge who’s appointed will do what they want them to do rather than what the law requires.” 

Hagen urged Utah voters “please don’t let their vote go unanswered.”

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“If you care about an independent, non-political judiciary, please be sure to vote to retain our judges,” she said. 

Hagen resigned from the bench earlier this year while under pressure from Republican state leaders calling for an independent investigation into previously dismissed allegations that she had an affair with an attorney representing plaintiffs in the state’s high-profile redistricting lawsuit. 

A Judicial Conduct Commission preliminary investigator that looked into the allegations wrote in a report that the complaint against her was “speculative, overstated and misleading” and contained “very little credibility.” Based on the investigator’s recommendations, the commission voted to dismiss the allegations without conducting a full investigation. 

Had she not resigned, Hagen would have been on this year’s judicial retention ballot along with one of her former colleagues on the bench, Associate Chief Justice Jill Pohlman. 

Now, Pohlman is the only Utah Supreme Court justice up for retention this year — during a time of heightened tension between the state’s judiciary and the Republican-controlled Utah Legislature, in large part due to rulings against lawmakers in high-profile lawsuits over ballot initiatives, redistricting and abortion. 

In the face of campaigns against her, Pohlman has stayed silent. Utah judicial rules prohibit judges from campaigning for themselves.

Earlier this year — months before the controversy over Hagen’s alleged affair came to light — Utah Republican Party leaders urged voters to vote against retaining both Hagen and Pohlman, largely because of how they ruled in the redistricting and abortion cases. 

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“We’re coming for you,” Utah GOP Chair Rob Axson said during the party’s state nominating convention in April. “Justice Hagen and Justice Pohlman, go find a job in the private sector. We don’t want you anymore.”

The July 2024 Utah Supreme Court opinion in the redistricting case that has caught Republican legislators’ ire remanded the previously dismissed lawsuit back to district court, making clear that the Legislature’s power to change “government reform” ballot initiatives has limits. 

That 2024 opinion was unanimous, with all five justices, including Pohlman and Hagen, deciding against the Legislature. 

The ongoing redistricting lawsuit is challenging the Utah Legislature’s repeal and replacement of a 2018 voter-approved ballot initiative known as Proposition 4 that banned partisan gerrymandering and created an independent redistricting process. 

So far, the courts have ruled that the Legislature overstepped when it replaced Proposition 4, turning the independent commission into an advisory body that lawmakers could ignore. They did just that in 2021 when they adopted congressional maps that the plaintiffs in the case allege cracked Democratic strongholds in the state’s urban core of Salt Lake County. 

Ruling that the 2021 congressional map was the result of an unconstitutional process, a district court judge ordered a new map to be used in this year’s elections that turned one of Utah’s previously deep red districts blue, which incensed Republican lawmakers. 

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Another 2024 Utah Supreme Court opinion that upset the GOP upheld an injunction that for years has blocked Utah’s near-total abortion ban from becoming law while the state faces an ongoing lawsuit over it. 

In that 4-1 opinion in the abortion case issued in July 2024, Pohlman, Hagen and two other justices affirmed the district court’s decision to block enforcement of the ban while the case was litigated. Former Chief Justice Matthew Durrant authored a dissenting opinion. 

Hagen’s public comments urging Utahns to retain judges comes as conservative voices have urged a shakeup in the courts. 

One of Utah’s Republican sitting Congress members, Rep. Burgess Owens (who announced he isn’t running for reelection after Utah’s new congressional boundaries were put in place by the court) posted on X earlier this month, on Oct. 20, urging people to vote against retaining Pohlman. 

That same day, the conservative Utah Eagle Forum — which advocates against abortion — also sent an email urging supporters to vote against Pohlman due to how she ruled in the abortion lawsuit brought by the Planned Parenthood Association of Utah. 

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“When the case reached the Utah Supreme Court, the Justices, including Jill Pohlman, voted to uphold the injunction, and babies continued to die,” the Utah Eagle Forum email said. “JUDGE POHLMAN AGREED WITH PLANNED PARENTHOOD.”

In another social media post, Hagen said a “nonpolitical judiciary is baked into the Utah Constitution,” which says judges should be selected “solely based on fitness for office and not based on partisan politics.” 

She said in that video that all of the judges listed on the ballot “were vetted by a bipartisan nominating committee made up of public members, attorneys and a representative of the judiciary. They were found to be qualified for the job before their names were sent to the governor.” 

“So if you believe in the Utah Constitution’s promise of a merit-based, non-political judiciary, be sure to vote yes to retain the judges,” she said. 

The Utah Judicial Performance Evaluation Commission also offers assessments for all judges who are up for retention election, based on surveys. 

That commission determined only one judge, Weber County Justice Court Judge Trent Nelson, does not meet performance standards and did not recommend him to be retained. The report shows those surveyed criticized his temperament, calling him impatient and demeaning, and questioned his legal ability, among other concerns.

Typically, if judges don’t pass the commission’s evaluations, they retire from the bench rather than staying on the ballot. But Nelson is opting to let voters decide whether he should keep his job, The Salt Lake Tribune reported.