Utah Supreme Court justice recused from 2 cases challenging constitutionality of new 3-judge panel

A Utah Supreme Court justice now won’t participate in two cases — the first dealing with gerrymandering and another on abortion — that are each challenging the constitutionality of the Utah Legislature’s newly created rotating three-judge “constitutional court” specifically meant to hear challenges to state laws. 

Utah Supreme Court Justice John Nielsen, who was first appointed to the state’s highest court last fall, has recused himself from both cases. 

His most recent recusal came last week after Planned Parenthood Association of Utah sought to disqualify him from the case stemming from an ongoing challenge to the state’s near-total abortion ban that has been blocked from going into effect since 2022. 

In 2024, the Utah Supreme Court opted against lifting the injunction blocking the law — which infuriated the Republican supermajority of the Utah Legislature. Today, abortion remains legal in Utah up to 18 weeks gestation. 

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In a motion filed in July, Planned Parenthood’s attorneys argued that Nielsen should be disqualified from the case because his “impartiality might reasonably be questioned” because Nielsen, during his time as a private attorney, helped file an amicus brief on behalf of Pro-Life Utah in 2022, during the ongoing legal fight over Utah’s abortion ban. 

The Utah Attorney General’s office, in an Aug. 5 filing, argued Nielsen shouldn’t be disqualified, saying the state has “no concerns” about Nielsen hearing the appeal to the three-judge panel. 

“The mere fact that two different appellate court proceedings separated by several years and involving entirely different issues sprang from the same underlying case should not necessarily mean they involve the same ‘matter in controversy’ or raise an objectively reasonable concern about impartiality,” the Utah Attorney General’s Office wrote. 

In July, a clerk for the Utah Supreme Court wrote that Nielsen “does not believe that amicus representation is a basis for disqualification,” but he disclosed his previous involvement in the case “as information that the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification.”

However, on Sept. 3, Nielsen reversed course and decided to recuse himself from Planned Parenthood’s challenge to the three-judge panel. 

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“Though Justice Nielsen still believes that there are strong reasons supporting the duty to sit here, he concludes on further reflection that the duty to recuse is stronger,” a clerk wrote in the recusal notice. 

“The duty to sit and render judgment on a case and the duty to recuse from a case both reflect

important values, including judicial independence and public confidence in the judiciary,” the clerk wrote. “Sometimes those duties come into tension and create difficult questions. This is one of those cases.”

Now a judge from another court will be invited to take Nielsen’s place. The Utah Supreme Court is scheduled to hear oral arguments in the case on Oct. 5. 

Shireen Ghorbani, President & CEO of Planned Parenthood Association of Utah, issued a statement expressing appreciation for Nielsen’s recusal. 

“The rules about recusals are objective and clear — a judge should recuse when their impartiality might be reasonably questioned,” Ghorbani said. “We appreciate Judge Nielsen for recusing in our case.” 

Previously, in April, Nielsen “voluntarily disqualified” himself from hearing the challenge to the three-judge panel stemming from an anti-gerrymandering case. 

At the time of his recusal, he cited work he did as a private attorney representing the Utah Republican Party in a prior appeal in the underlying anti-gerrymandering case brought by the League of Women Voters of Utah, Mormon Women for Ethical Government and other plaintiffs. 

“Though amicus representation is not in itself disqualifying, then-counsel Nielsen worked very closely with the Legislature’s counsel and offered advice on the broader litigation to the point that he felt for purposes of recusal that he had acted as counsel for the Legislature rather than just for amici,” a Utah Supreme Court clerk wrote in Nielsen’s recusal notice. 

Soon after the Utah Legislature created the three-judge panel to hear constitutional challenges to state laws, Utah’s attorney general and the Legislature moved to transfer several cases — including the anti-gerrymandering case and the abortion case — to the new “constitutional court.” The plaintiffs in those cases also reacted swiftly, asking the courts to block the legislation that created the three-judge panel as itself unconstitutional. 

Opponents of the new three-judge panel argued it enables state leaders to “forum shop” court cases away from judges who haven’t given them favorable rulings, while proponents including Senate President Stuart Adams, R-Layton, argued it was structured to avoid any concerns of “forum shopping” because judges that would serve on the panel would be randomly selected. 

The creation of the new three-judge panel has led arguments in the underlying court cases to be put on pause while the courts hash out whether the new court is constitutional or not.  

Challenges to the new “constitutional court” have since gone to the Utah Supreme Court to decide — at a time when the state’s highest court is undergoing major changes. 

The Utah Legislature earlier this year expanded the court from five to seven justices, prompting two openings on the bench that Gov. Spencer Cox recently filled with the appointments of Stephen Dent and Jay Jorgensen, both of whom the Utah Senate confirmed in June. 

Then, two more openings came after the resignation of former Justice Diana Hagen amid controversy and the retirement of longtime Chief Justice Matthew Durrant. Late last month, Cox nominated attorney Michael Manssen and 5th District Judge Matthew Bell to fill those seats. Their appointments are pending confirmation from the Utah Senate, with confirmation hearings scheduled for Friday and Monday. 

Nielsen took his place on the bench last year after he was appointed to fill a vacancy left by former Associate Chief Justice John Pearce.