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First Substitute H.B. 136

Representative Katherine M. Bryson proposes the following substitute bill:


             1     
JUDICIAL CONDUCT COMMISSION

             2     
AMENDMENTS

             3     
2002 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Katherine M. Bryson

             6      This act modifies provisions relating to the Judicial Conduct Commission and the Elections
             7      Code. It changes the composition of the commission to include a member of the Utah Court
             8      of Appeals. It adds the requirement to decide whether certain information alleging
             9      misconduct should be investigated. It also requires the commission to immediately refer an
             10      allegation involving criminal conduct to the Utah Supreme Court. It also establishes an eight
             11      year term limit on commission members. In addition, this act provides that the burden of
             12      proof shall be a preponderance of the evidence, and that certain information shall be
             13      included in the record when the commission sends any order to the Supreme Court for
             14      review. It reiterates the Supreme Court's ability to modify any order of the commission, and
             15      also requires that the Supreme Court provide a written summary for publication in the
             16      Voter Information Pamphlet.
             17      This act affects sections of Utah Code Annotated 1953 as follows:
             18      AMENDS:
             19          20A-7-702, as last amended by Chapters 65 and 166, Laws of Utah 2001
             20          78-8-101, as enacted by Chapter 148, Laws of Utah 2000
             21          78-8-102, as renumbered and amended by Chapter 148, Laws of Utah 2000
             22          78-8-104, as enacted by Chapter 148, Laws of Utah 2000
             23          78-8-107, as renumbered and amended by Chapter 148, Laws of Utah 2000
             24      Be it enacted by the Legislature of the state of Utah:
             25          Section 1. Section 20A-7-702 is amended to read:


             26           20A-7-702. Voter information pamphlet -- Form -- Contents -- Distribution.
             27          (1) The lieutenant governor shall ensure that all information submitted for publication in
             28      the voter information pamphlet is:
             29          (a) printed and bound in a single pamphlet;
             30          (b) printed in clear readable type, no less than ten-point, except that the text of any
             31      measure may be set forth in eight-point type; and
             32          (c) printed on a quality and weight of paper that best serves the voters.
             33          (2) The voter information pamphlet shall contain the following items in this order:
             34          (a) a cover title page;
             35          (b) an introduction to the pamphlet by the lieutenant governor;
             36          (c) a table of contents;
             37          (d) a list of all candidates for constitutional offices;
             38          (e) a list of candidates for each legislative district;
             39          (f) a 100-word statement of qualifications for each candidate for the office of governor,
             40      lieutenant governor, attorney general, state auditor, or state treasurer, if submitted by the candidate
             41      to the lieutenant governor's office before July 15 at 5 p.m.;
             42          (g) information pertaining to all measures to be submitted to the voters, beginning a new
             43      page for each measure and containing, in the following order for each measure:
             44          (i) a copy of the number and ballot title of the measure;
             45          (ii) the final vote cast by the Legislature on the measure if it is a measure submitted by the
             46      Legislature or by referendum;
             47          (iii) the impartial analysis of the measure prepared by the Office of Legislative Research
             48      and General Counsel;
             49          (iv) the arguments in favor of the measure, the rebuttal to the arguments in favor of the
             50      measure, the arguments against the measure, and the rebuttal to the arguments against the measure,
             51      with the name and title of the authors at the end of each argument or rebuttal;
             52          (v) for each constitutional amendment, a complete copy of the text of the constitutional
             53      amendment, with all new language underlined, and all deleted language placed within brackets;
             54      and
             55          (vi) for each initiative qualified for the ballot, a copy of the measure as certified by the
             56      lieutenant governor;


             57          (h) a description provided by the Judicial Council of the selection and retention process
             58      for judges, including, in the following order:
             59          (i) a description of the judicial selection process;
             60          (ii) a description of the judicial performance evaluation process;
             61          (iii) a description of the judicial retention election process;
             62          (iv) a list of the criteria and minimum standards of judicial performance evaluation;
             63          (v) the names of the judges standing for retention election; and
             64          (vi) for each judge:
             65          (A) the counties in which the judge is subject to retention election;
             66          (B) a short biography of professional qualifications and a recent photograph;
             67          (C) for each standard of performance, a statement identifying whether or not the judge met
             68      the standard and, if not, the manner in which the judge failed to meet the standard;
             69          (D) a statement provided by the Utah Supreme Court identifying the cumulative number
             70      of [public orders issued by] informal reprimands, when consented to by the judge in accordance
             71      with Section 78-7-107 (2)(d), formal reprimands, and all orders of censure and suspension issued
             72      by the Utah Supreme Court under Utah Constitution Article VIII, Section 13 during the judge's
             73      current term and the immediately preceding term, and a [statement of the basis for each order]
             74      detailed summary of the supporting reasons for each violation of the Code of Judicial Conduct that
             75      the judge has received; and
             76          (E) a statement identifying whether or not the judge was certified by the Judicial Council;
             77          (vii) (A) except as provided in Subsection (2)(h)(vii)(B), for each judge, in graphic format,
             78      the responses for each attorney, jury, and other survey question used by the Judicial Council for
             79      certification of judges, displayed in 1% increments;
             80          (B) notwithstanding Subsection (2)(h)(vii)(A), if the sample size for the survey for a
             81      particular judge is too small to provide statistically reliable information in 1% increments, the
             82      survey results for that judge shall be reported as being above or below 70% and a statement by the
             83      surveyor explaining why the survey is statistically unreliable shall also be included;
             84          (i) an explanation of ballot marking procedures prepared by the lieutenant governor,
             85      indicating the ballot marking procedure used by each county and explaining how to mark the ballot
             86      for each procedure;
             87          (j) voter registration information, including information on how to obtain an absentee


             88      ballot;
             89          (k) a list of all county clerks' offices and phone numbers; and
             90          (l) on the back cover page, a printed copy of the following statement signed by the
             91      lieutenant governor:
             92          "I, _______________ (print name), Lieutenant Governor of Utah, certify that the measures
             93      contained in this pamphlet will be submitted to the voters of Utah at the election to be held
             94      throughout the state on ____ (date of election), and that this pamphlet is complete and correct
             95      according to law. SEAL
             96          Witness my hand and the Great Seal of the State, at Salt Lake City, Utah this ____ day of
             97      ____ (month), ____ (year)
             98     
Lieutenant Governor"
             99          (3) The lieutenant governor shall:
             100          (a) ensure that one copy of the voter information pamphlet is placed in one issue of every
             101      newspaper of general circulation in the state not more than 40 nor less than 15 days before the day
             102      fixed by law for the election;
             103          (b) ensure that a sufficient number of printed voter information pamphlets are available
             104      for distribution as required by this section;
             105          (c) provide voter information pamphlets to each county clerk for free distribution upon
             106      request and for placement at polling places; and
             107          (d) ensure that the distribution of the voter information pamphlets is completed 15 days
             108      before the election.
             109          Section 2. Section 78-8-101 is amended to read:
             110           78-8-101. Definitions.
             111          As used in this chapter:
             112          (1) "Commission" means the Judicial Conduct Commission established by Utah
             113      Constitution Article VIII, Section 13 and Section 78-8-102 .
             114          (2) (a) "Complaint" includes a formal written complaint against a judge.
             115          (b) "Complaint" also includes the executive director of the commission's written statement
             116      of the allegation based on reliable information received in any form, from any source, that alleges,
             117      or from which a reasonable inference can be drawn that a judge is in violation of any provision of
             118      Utah Constitution Article VIII, Section 13[, if there is no written complaint from another person].


             119           (3) "Investigation" means an inquiry into an allegation of misconduct, including a search
             120      for and examination of evidence concerning the allegations, which begins upon the receipt of a
             121      complaint and is completed when either the complaint is dismissed by a majority vote of the
             122      commission or when an order is sent to the Supreme Court for its review in accordance with Utah
             123      Constitution Article VIII, Section 13.
             124          [(3)] (4) Except as more specifically provided in Subsections 78-8-104 (1) and (2), "judge"
             125      includes a justice of the Supreme Court, an appellate court judge, a district court judge, an active
             126      senior judge, a juvenile court judge, a justice court judge, an active senior justice court judge, and
             127      a judge pro tempore of any court of this state.
             128          Section 3. Section 78-8-102 is amended to read:
             129           78-8-102. Judicial Conduct Commission -- Creation -- Members -- Terms --
             130      Vacancies -- Voting -- Expenses -- Power of chair.
             131          (1) The membership of the Judicial Conduct Commission established by Article VIII,
             132      Section 13 of the Utah Constitution consists of:
             133          (a) two members of the House of Representatives to be appointed by the speaker of the
             134      House of Representatives for a h [ two-year ] FOUR-YEAR h term, not more than one of whom may
             134a      be of the same
             135      political party as the speaker;
             136          (b) two members of the Senate to be appointed by the president of the Senate for a
             137      [two-year] four-year term, not more than one of whom may be of the same political party as the
             138      president;
             139          (c) h [ three ] TWO h members [from the board of commissioners] of, and in good standing
             139a      with, the
             140      Utah State Bar, who shall be appointed by [the board of commissioners of the Utah State Bar for
             141      a four-year term] a majority of the Utah Supreme Court for a h [ two-year ] FOUR-YEAR h term, none
             141a      of whom may
             142      reside in the same judicial district;
             143          (d) [two] three persons not members of the Utah State Bar, who shall be appointed by the
             144      governor, with the advice and consent of the Senate, for four-year terms, not more than [one] two
             145      of whom may be of the same political party as the governor; [and]
             146          (e) one [judge, and one alternate judge, of a trial court of record,] member of the Utah
             147      Court of Appeals to be selected by [the nonjudicial members of the commission] a majority of the
             148      Utah Supreme Court for a four-year term; and [terms. The judge and the alternate judge shall
             149      coordinate attendance for meetings so that, if possible, at least one is in attendance at each meeting.


             150      If both judges are in attendance at a meeting, the alternate judge shall not be counted for quorum
             151      purposes nor vote on any issue before the commission.]
             152          (e) one judge from a h TRIAL h court of record to be selected by a majority of the Utah
             152a      Supreme
             153      Court for a h [ two-year ] FOUR-YEAR h term.
             154          (2) (a) The terms of the members shall be staggered so that approximately half of the
             155      commission expires every two years. [The judges shall be appointed so that the terms expire in
             156      staggered two year increments.]
             157          (b) All members of the commission shall serve no longer than eight years.
             158          [(3) If a judge serving on the commission is disqualified from participating in any
             159      proceeding, the commission shall select a substitute judge of a trial court of record.]
             160          [(4)] (3) The commission shall establish guidelines and procedures for the disqualification
             161      of any member from consideration of any matter.
             162          [(5)] (4) (a) When a vacancy occurs in the membership for any reason, the replacement
             163      shall be appointed by the appointing authority for the unexpired term.
             164          (b) If the appointing authority fails to appoint a replacement, the commissioners who have
             165      been appointed may act as a commission under all the provisions of this section.
             166          [(6) Six] (5) h [ Seven ] SIX h members of the commission shall constitute a quorum. Any
             166a      action of
             167      a majority of the quorum constitutes the action of the commission.
             168          [(7)] (6) (a) (i) Members who are not government employees shall receive no
             169      compensation or benefits for their services, but may receive per diem and expenses incurred in the
             170      performance of the member's official duties at the rates established by the Division of Finance
             171      under Sections 63A-3-106 and 63A-3-107 .
             172          (ii) Members may decline to receive per diem and expenses for their service.
             173          (b) (i) State government officer and employee members who do not receive salary, per
             174      diem, or expenses from their agency for their service may receive per diem and expenses incurred
             175      in the performance of their official duties from the commission at the rates established by the
             176      Division of Finance under Sections 63A-3-106 and 63A-3-107 .
             177          (ii) State government officer and employee members may decline to receive per diem and
             178      expenses for their service.
             179          (c) Legislators on the commission shall receive compensation and expenses as provided
             180      in Section 36-2-2 and Legislative Joint Rule 15.03.


             181          (d) (i) The chair shall be allowed the actual expenses of secretarial services, the expenses
             182      of services for either a court reporter or a transcriber of electronic tape recordings, and other
             183      necessary administrative expenses incurred in the performance of the duties of the commission.
             184          (ii) [The chair] At each commission meeting, the chair and executive director shall
             185      schedule all complaints to be heard by the commission and [may not act to dismiss any complaint
             186      without the approval of the commission] present any information from which a reasonable
             187      inference can be drawn that a judge has committed misconduct so that the commission may
             188      determine by majority vote of a quorum whether the executive director h [ should ] SHALL h draft a
             188a      written
             189      complaint in accordance with Subsection 78-8-101 (2)(b).
             190          (iii) The chair and executive director shall refer all policy matters to the commission and
             191      may not act to dismiss any complaint without a majority vote of a quorum of the commission.
             192          (7) It is the responsibility of the chair and the executive director to ensure that the
             193      commission comply with the procedures of the commission.
             194          (8) The chair shall be nonvoting except in the case of a tie vote.
             195          [(8)] (9) Upon a majority vote of the quorum, the commission may:
             196          (a) employ h [ a director ] AN EXECUTIVE DIRECTOR h , legal counsel, investigators, and
             196a      other staff to assist the commission;
             197      and
             198          (b) incur other reasonable and necessary expenses within the authorized budget of the
             199      commission and consistent with the duties of the commission.
             199a           h (10) MEMBERS SERVING ON JANUARY 1, 2002 SHALL SERVE FROM THE DATE OF THEIR
             199b      APPOINTMENT UNTIL S [APRIL] JUNE s 30, 2002. AFTER S [MAY] JULY s 1, 2002, MEMBERS SHALL
             199b-1      BE APPOINTED AS
             199c      PROVIDED IN SECTION 78-8-102, EXCEPT THAT THOSE APPOINTED SHALL DRAW BY LOT FOR
             199d      TERMS OF OFFICE OF TWO AND FOUR YEARS SO THAT THE TERMS OF OFFICE OF
             199e      APPROXIMATELY HALF OF THE COMMISSION MEMBERS SHALL EXPIRE EVERY TWO YEARS. h
             200          Section 4. Section 78-8-104 is amended to read:
             201           78-8-104. Criminal investigation of a judge -- Administrative leave.
             202          (1) (a) If the commission, during the course of its investigation into an allegation of
             203      judicial misconduct, receives information upon which a reasonable person might conclude that a
             204      misdemeanor or felony under state or federal law has been committed by an appellate court judge,
             205      a district court judge, an active senior judge, a juvenile court judge, a justice court judge, an active
             206      senior justice court judge, or a judge pro tempore, the commission shall immediately refer the
             207      allegation and any information relevant to the potential criminal violation to the chief justice of


             208      the Supreme Court.


             209          (b) The chief justice of the Supreme Court may place the appellate court judge, district
             210      court judge, active senior judge, juvenile court judge, justice court judge, active senior justice court
             211      judge, or judge pro tempore on administrative leave with pay if the chief justice has a reasonable


             212      basis to believe that the alleged crime occurred, that the appellate court judge, district court judge,
             213      active senior judge, juvenile court judge, justice court judge, active senior justice court judge, or
             214      judge pro tempore committed the crime, and that crime was either a felony or a misdemeanor
             215      which conduct may be prejudicial to the administration of justice or which brings a judicial office
             216      into disrepute.
             217          (2) (a) If the commission, during the course of its investigation into an allegation of
             218      judicial misconduct, receives information upon which a reasonable person might conclude that a
             219      misdemeanor or felony under state or federal law has been committed by the chief justice of the
             220      Supreme Court, the commission shall immediately refer the allegation and any information
             221      relevant to the potential criminal violation to two justices of the Supreme Court.
             222          (b) Two justices of the Supreme Court may place the chief justice of the Supreme Court
             223      on administrative leave with pay if the two justices have a reasonable basis to believe that the
             224      alleged crime occurred, that the chief justice committed the crime, and that crime was either a
             225      felony or a misdemeanor which conduct may be prejudicial to the administration of justice or
             226      which brings a judicial office into disrepute.
             227          (3) If a judge is or has been criminally charged or indicted for a class A misdemeanor or
             228      any felony under state or federal law and if the Supreme Court has not already acted under
             229      Subsection (1) or (2), the appropriate member or members of the Supreme Court as provided in
             230      Subsection (1) or (2), shall place the judge on administrative leave, with pay, pending the outcome
             231      of the criminal proceeding.
             232          (4) The chief justice of the Supreme Court or two justices of the Supreme Court who
             233      ordered the judge on administrative leave with pay, shall order the reinstatement of the judge:
             234          (a) if the prosecutor to whom the allegations are referred by the commission as required
             235      under Section 78-8-107 , determines no charge or indictment should be filed; or
             236          (b) after final disposition of the criminal case, if the judge is not convicted of a criminal
             237      charge.
             238          Section 5. Section 78-8-107 is amended to read:
             239           78-8-107. Authority of Judicial Conduct Commission -- Disclosure of criminal
             240      misconduct or information -- Procedure for reprimand, censure, removal, suspension, or
             241      involuntary retirement -- Certain orders made public.
             242          (1) (a) The commission shall receive and [may] investigate any complaint against a judge.


             243          (b) (i) If the commission receives a complaint that alleges conduct that may be a
             244      misdemeanor or felony under state or federal law, it shall, unless the allegation is plainly frivolous,
             245      immediately refer the allegation of criminal misconduct and any information relevant to the
             246      potential criminal violation to the local prosecuting attorney having jurisdiction to investigate and
             247      prosecute the crime.
             248          (ii) If the local prosecuting attorney receiving the allegation of criminal misconduct of a
             249      judge practices before that judge on a regular basis, or has a conflict of interest in investigating the
             250      crime, the local prosecuting attorney shall refer this allegation of criminal misconduct to another
             251      local or state prosecutor who would not have that same disability or conflict.
             252          (iii) The commission may concurrently proceed with its investigation of the complaint
             253      without waiting for the resolution of the criminal investigation by the prosecuting attorney.
             254          (2) During the course of any investigation, the commission:
             255          (a) shall refer any information relating to the criminal conduct alleged and any evidence
             256      which relates to the allegation to which the judge has been accused, unless plainly frivolous, to the
             257      local prosecuting attorney as provided in Subsection (1)(b);
             258          (b) may order a hearing to be held concerning the reprimand, censure, suspension,
             259      removal, or involuntary retirement of a judge;
             260          (c) may, with the written consent of the judge being investigated, resolve a complaint by
             261      issuing an informal order of reprimand which shall be disclosed to:
             262          (i) the person who filed the complaint;
             263          (ii) the judge who is the subject of the complaint;
             264          (iii) the Judicial Council for its use in the judicial recertification process;
             265          (iv) the Supreme Court for issuance of its final order as provided in Subsection (7); and
             266          (v) the person who appointed the municipal justice court judge; and
             267          (d) may, with the written consent of the judge receiving the informal order of reprimand
             268      under Subsection (2)(c), publicly disclose the commission's informal order of reprimand.
             269          (3) The commission shall provide the judge with all information necessary to prepare an
             270      adequate response or defense, which may include the identity of the complainant.
             271          (4) (a) A hearing may be conducted before a quorum of the commission.
             272          (b) Any finding or order shall be made upon a majority vote of the quorum.
             273          (5) Alternatively, the commission may appoint three special masters, who are judges of


             274      courts of record, to hear and take evidence in the matter and to report to the commission.
             275          (6) (a) After the hearing or after considering the record and report of the masters, if the
             276      commission finds [good cause] by a preponderance of the evidence that misconduct occurred, it
             277      shall order the reprimand, censure, suspension, removal, or involuntary retirement of the judge.
             278          (b) When a commission order is sent to the Supreme Court, it shall also be:
             279          (i) publicly disclosed; and
             280          (ii) sent to the person or entity who appointed the judge.
             281          (c) Subsection (6)(b)(i) does not apply to a commission informal order of reprimand.
             282          [(7) Before the implementation]
             283          (7) When the commission issues any order, including a stipulated order, that is sent to the
             284      Supreme Court, the record shall include:
             285          (a) the original complaint and any other information regarding violations, or potential
             286      violations, of the Code of Judicial Conduct;
             287          (b) the notice of charges;
             288          (c) all correspondence and other documents which passed between the commission and
             289      the judge;
             290          (d) all letters which may explain the charges;
             291          (e) all affidavits, subpoenas, and testimony of witnesses;
             292          (f) the commission's findings of fact and conclusions of law;
             293          (g) a transcript of any proceedings, including hearings on motions;
             294          (h) a transcript of the evidence;
             295          (i) a summary of all the complaints dismissed by the commission against the judge which
             296      contained allegations or information similar in nature to the misconduct under review by the
             297      Supreme Court;
             298          (j) a summary of all the orders implemented, rejected, or modified by the Supreme Court
             299      against the judge; and
             300          (k) all information in the commission's files on any informal resolution, including any
             301      letter of admonition, comment, or caution, that the commission issued against the judge prior to
             302      May 1, 2000.
             303          (8) (a) Before the implementation, rejection, or modification of any commission order
             304      issued under Subsections (2) [and], (6), and (7) the Supreme Court shall:


             305          (i) review the commission's proceedings as to both law and fact and may permit the
             306      introduction of additional evidence[.]; and
             307          (ii) consider the number and nature of previous orders issued by the Supreme Court and
             308      may increase the severity of the order based on a pattern or practice of misconduct or for any other
             309      reason that the Supreme Court finds just and proper.
             310          (b) In recommending any order, including stipulated orders, the commission may not
             311      place, or attempt to place, any condition or limitation upon the Supreme Court's constitutional
             312      power to:
             313          (i) review the commission's proceedings as to both law and fact; or
             314          (ii) implement, reject, or modify a commission order.
             315          (c) After briefs have been submitted and any oral argument made, the Supreme Court shall,
             316      within 90 days, issue its order implementing, rejecting, or modifying the commission's order[.];
             317      and
             318          [(8)] (9) (a) Upon an order for involuntary retirement, the judge shall retire with the same
             319      rights and privileges as if the judge retired pursuant to statute.
             320          (b) Upon an order for removal, the judge shall be removed from office and his salary or
             321      compensation ceases from the date of the order.
             322          (c) Upon an order for suspension from office, the judge may not perform any judicial
             323      functions and may not receive a salary for the period of suspension.
             324          [(9)] (10) (a) The transmission, production, or disclosure of any complaints, papers, or
             325      testimony in the course of proceedings before the commission, the masters appointed under
             326      Subsection (5), or the Supreme Court may not be introduced in any civil action.
             327          (b) The transmission, production, or disclosure of any complaints, papers, or testimony in
             328      the course of proceedings before the commission or the masters appointed under Subsection (5)
             329      may be introduced in any criminal action, consistent with the Utah Rules of Evidence. This
             330      information shall be shared with the prosecutor conducting a criminal investigation or prosecution
             331      of a judge as provided in Subsections (1) and (2).
             332          (c) Complaints, papers, testimony, or the record of the commission's confidential hearing
             333      may not be disclosed by the commission, masters, or any court until the Supreme Court has entered
             334      its final order in accordance with this section, except:
             335          (i) upon order of the Supreme Court;


             336          (ii) upon the request of the judge who is the subject of the complaint;
             337          (iii) as provided in Subsection [(9)] (10)(d); or
             338          (iv) to aid in a criminal investigation or prosecution as provided in Subsections (1) and (2).
             339          (d) Upon the dismissal of a complaint or allegation against a judge, the dismissal shall be
             340      disclosed without consent of the judge to the person who filed the complaint.
             341          [(10)] (11) The commission shall make rules in accordance with Title 63, Chapter 46a,
             342      Utah Administrative Rulemaking Act, outlining its procedures and the appointment of masters.
             343          [(11)] (12) A judge who is a member of the commission or the Supreme Court may not
             344      participate in any proceedings involving the judge's own removal or retirement.
             345          [(12)] (13) Retirement for involuntary retirement as provided in this chapter shall be
             346      processed through the Utah State Retirement Office, and the judge retiring shall meet the
             347      requirements for retirement as specified in this chapter.
             347a           h Section 6. Effective date
             347b          IF APPROVED BY TWO-THIRDS OF ALL THE MEMBERS ELECTED TO EACH HOUSE, THIS
             347c      ACT TAKES EFFECT ON MAY 1, 2002. h


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