The Utah State Bar is sounding the alarm over a bill that would let the Legislature investigate judges’ rulings and recommend – on Utahns’ ballots — which judges lawmakers think should be voted off the bench.
The Utah Judicial Council’s Liaison Committee — which reviews legislation and makes recommendations to the council governing Utah’s courts — also took a position this week opposing the bill. The council will discuss the bill when it meets Monday.
HB512, sponsored by Rep. Karianne Lisonbee, R-Clearfield, creates a Joint Legislative Committee on Judicial Performance — appointed by the House Speaker and Senate President — that would be able to conduct inquisitions into the judge’s conduct on the bench.
The committee could solicit public input, hold a public meeting and recommend whether or not the committee believes Utahns should vote to retain the judge. That recommendation would appear next to the judge’s name on the ballot.
Judges are already evaluated by the Judicial Performance Evaluation Committee, which is made up of an array of attorneys and citizens from both parties and solicits input from plaintiffs, defendants and lawyers who appear before Utah judges.
“The only reason for this second evaluation committee — a committee composed only of legislators— is to inject partisan politics into the current merit-based and nonpartisan judicial evaluation and retention process,” the Bar said in a news release Wednesday.
House Speaker Mike Schultz, R-Hooper, said he frequently hears from voters that they don’t know how to vote on judicial retention and HB512 sets up a process to give voters more information.
“If you’re a judge I can understand why you may not want that additional level of scrutiny, but I think giving voters more information and letting the people make the decision is a good thing,” Schultz said on Thursday. “One of the things I’ve heard about a couple judges in Salt Lake County — I’m not going to get into who — but there’s a lot of frustration with a couple of them and people would like to have that moment to come and say, ‘Hey, this is my experience with this judge.’ … Right now, they currently don’t have that.”
The legislative committee lacks objective standards, the bar said, and allows lawmakers to target judges based on rulings they oppose.
“The process is demeaning and of questionable constitutionality. It is degrading to call a member of the judiciary before a panel of legislators to defend him or herself and his or her record,” the Utah State Bar said. “Requiring a judge to answer to a legislative body goes against the core principle of our constitution — a judiciary that can make decisions based on the facts and law without fear of being pilloried in public or removed from the bench.”
Currently, applicants for judicial vacancies are screened by the Judicial Nominating Commission which forwards the names of finalists to the governor who conducts interviews with candidates. The governor then sends one nominee to the Senate, which holds a confirmation hearing and votes to confirm or reject the governor’s choice. Once on the bench, judges have to stand for a retention election every six years.
Another proposal in the House, HB451 sponsored by Rep. Jason Kyle, R-Huntsville, would require judges to get more than 66.7% of the vote — rather than 50% — in order to be retained.
The bar opposes that bill, as well, and another that looks to remove the limits on the number of members of the Judicial Performance Evaluation Committee that can be from one political party, meaning all 13 members could potentially be Republicans.
Republican legislators are looking to assert their influence over the courts after judges dealt a series of setbacks to the GOP agenda — preventing a near-total ban on abortions from taking effect, blocking a ban on transgender girls competing in high school sports, restricting the Legislature’s power to undo citizen-backed ballot initiatives and stopping lawmakers from amending the Constitution to assert the power to repeal initiatives.
Another bill introduced this week, SB296, sponsored by Sen. Chris Wilson, R-Logan, would let the governor appoint the chief justice of the Utah Supreme Court and the presiding judge of the court of appeals — both with confirmation by the Senate — rather than having the judges on the respective courts choose that top position among themselves.
The bar also opposed two bills sponsored by Pleasant Grove Republican Sen. Brady Brammer — one that would make it harder for associations to challenge laws the Legislature has passed and another allowing laws to remain in effect pending an appeal to the Utah Supreme Court when a lower court enjoins it.
