First Substitute S.B. 197

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JUDICIAL NOMINATING COMMISSION AMENDMENT
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Craig L. Taylor
5 AN ACT RELATING TO JUDICIAL SELECTION PROCEDURES; CLARIFYING QUORUM
6 REQUIREMENTS FOR JUDICIAL NOMINATING COMMISSIONS; CLARIFYING
7 CERTAIN PROCEDURES OF JUDICIAL NOMINATING COMMISSIONS; MAKING
8 TECHNICAL CORRECTIONS; AND PROVIDING AN EFFECTIVE DATE.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 20A-12-102, as last amended by Chapter 243, Laws of Utah 1996
12 20A-12-103, as last amended by Chapters 198 and 243, Laws of Utah 1996
13 20A-12-104, as enacted by Chapter 1, Laws of Utah 1995
14 Be it enacted by the Legislature of the state of Utah:
15 Section 1. Section 20A-12-102 is amended to read:
16 20A-12-102. Appellate Court Nominating Commission.
17 (1) (a) There is created an Appellate Court Nominating Commission.
18 (b) The Appellate Court Nominating Commission shall nominate justices of the Supreme
19 Court and judges of the Court of Appeals.
20 (2) (a) The Appellate Court Nominating Commission shall consist of seven
21 commissioners, each appointed by the governor to serve a single four-year term.
22 (b) Notwithstanding the requirements of Subsection (2)(a), the governor shall, at the time
23 of appointment, adjust the length of terms to ensure that the terms of commission members are
24 staggered so that approximately half of the commission is appointed every two years.
25 (c) Each commissioner shall:
26 (i) be a United States citizen and a resident of Utah; and
27 (ii) serve until the commissioner's successor is appointed.

1 (d) The governor may not appoint:
2 (i) a commissioner to serve successive terms;
3 (ii) a member of the Legislature to serve as a member of the Appellate Court Nominating
4 Commission; or
5 (iii) more than four commissioners from the same political party to the Appellate Court
6 Nominating Commission.
7 (e) (i) The Utah State Bar shall submit to the governor a list of six nominees to serve as
8 Appellate Court Nominating Commissioners.
9 (ii) The governor shall appoint two commissioners from the list of nominees provided by
10 the Utah State Bar.
11 (iii) The governor may reject the list submitted by the Utah State Bar and request a new
12 list of nominees.
13 (f) The governor may not appoint more than four persons who are members of the Utah
14 State Bar to the Appellate Court Nominating Commission.
15 (g) (i) The chief justice of the Supreme Court is an ex officio, nonvoting member of the
16 Appellate Court Nominating Commission.
17 (ii) If the chief justice cannot serve on the commission, he shall appoint another justice of
18 the Supreme Court to serve in his absence.
19 (h) The governor shall appoint the chair of the Appellate Court Nominating Commission
20 from among the membership.
21 (3) (a) Except for the chief justice of the Supreme Court, each commissioner is a voting
22 member of the Appellate Court Nominating Commission.
23 (b) [A majority of commissioners who have not recused themselves or been disqualified
24 from acting is] Four commissioners are a quorum.
25 (c) The state court administrator shall serve as secretary to the Appellate Court Nominating
26 Commission.
27 (d) The chief justice of the Supreme Court shall:
28 (i) ensure that the commission follows the rules promulgated by the Judicial Council; and
29 (ii) resolve any questions regarding those rules.
30 (e) A member of the commission who is also a member of the Utah State Bar may recuse
31 himself if there is a conflict of interest that makes the member unable to serve.

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1 (4) If an appellate court nominating commissioner is disqualified or is otherwise unable
2 to serve, the governor shall appoint a new commissioner of the same political party as the
3 unavailable commissioner.
4 (5) (a) The governor shall fill any vacancy in the office of Appellate Court Nominating
5 Commission.
6 (b) If the vacancy occurs among commission members who are also members of the Utah
7 State Bar, the governor shall replace that commissioner with a person from a list of nominees
8 submitted by the Utah State Bar as provided in Subsection (2).
9 (c) The governor shall ensure that each person who is appointed to fill any vacancy in the
10 Appellate Court Nominating Commission other than a vacancy caused by expiration of term is a
11 member of the same political party as the commissioner whom he replaces.
12 (d) When a vacancy occurs in the membership for any reason, the replacement shall be
13 appointed for the unexpired term and may not be reappointed.
14 (6) (a) (i) Members who are not government employees shall receive no compensation or
15 benefits for their services, but may receive per diem and expenses incurred in the performance of
16 the member's official duties at the rates established by the Division of Finance under Sections
17 63A-3-106 and 63A-3-107.
18 (ii) Members may decline to receive per diem and expenses for their service.
19 (b) (i) State government officer and employee members who do not receive salary, per
20 diem, or expenses from their agency for their service may receive per diem and expenses incurred
21 in the performance of their official duties from the commission at the rates established by the
22 Division of Finance under Sections 63A-3-106 and 63A-3-107.
23 (ii) State government officer and employee members may decline to receive per diem and
24 expenses for their service.
25 Section 2. Section 20A-12-103 is amended to read:
26 20A-12-103. Trial court nominating commission.
27 (1) (a) There is created a trial court nominating commission for each geographical division
28 of the trial courts of record.
29 (b) The trial court nominating commission shall nominate judges of the district court and
30 the juvenile court within its geographical division.
31 (2) (a) The trial court nominating commission shall consist of seven commissioners, each

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1 appointed by the governor to serve a single four-year term.
2 (b) Notwithstanding the requirements of Subsection (2)(a), the governor shall, at the time
3 of appointment, adjust the length of terms to ensure that the terms of commission members are
4 staggered so that approximately half of the commission is appointed every two years.
5 (c) Each commissioner shall:
6 (i) be a United States citizen, a resident of Utah, and a resident of the geographic division
7 to be served by the commission to which he is appointed; and
8 (ii) serve until the commissioner's successor is appointed.
9 (d) The governor may not appoint:
10 (i) a commissioner to serve successive terms;
11 (ii) a member of the Legislature to serve as a member of a trial court nominating
12 commission; or
13 (iii) more than four commissioners from the same political party to a trial court nominating
14 commission.
15 (e) (i) The governor shall appoint two commissioners from a list of nominees provided by
16 the Utah State Bar.
17 (ii) The Utah State Bar shall submit:
18 (A) six nominees from Districts 2, 3, and 4; and
19 (B) four nominees from Districts 1, 5, 6, 7, and 8.
20 (iii) The governor may reject any list and request a new list of nominees.
21 (f) The governor may not appoint more than four persons who are members of the Utah
22 State Bar to a trial court nominating commission.
23 (g) (i) The chief justice of the Supreme Court is an ex officio, nonvoting member of each
24 trial court nominating commission.
25 (ii) If the chief justice cannot serve on the commission, he shall appoint another justice of
26 the Supreme Court to serve in his absence.
27 (h) The governor shall appoint the chair of each trial court nominating commission from
28 among its membership.
29 (3) (a) Except for the chief justice of the Supreme Court, each trial court nominating
30 commissioner is a voting member of the commission.
31 (b) [A majority of commissioners who have not recused themselves or been disqualified

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1 from acting is] Four commissioners are a quorum.
2 (c) The state court administrator shall serve as secretary to each trial court nominating
3 commission.
4 (d) The chief justice of the Supreme Court shall:
5 (i) ensure that each trial court nominating commission follows the rules promulgated by
6 the Judicial Council; and
7 (ii) resolve any questions regarding those rules.
8 (e) A member of a trial court nominating commission who is also a member of the Utah
9 State Bar may recuse himself if there is a conflict of interest that makes the member unable to
10 serve.
11 (4) If a commissioner is disqualified or otherwise unable to serve, the governor shall
12 appoint a new commissioner of the same political party as the unavailable commissioner.
13 (5) (a) The governor shall fill any vacancy in the office of trial court nominating
14 commissioner.
15 (b) If the vacancy occurs among commission members who are also members of the Utah
16 State Bar, the governor shall replace that commissioner with a person from a list of nominees
17 submitted by the Utah State Bar as provided in Subsection (2).
18 (c) The governor shall ensure that each person who is appointed to fill any vacancy in the
19 office of commissioner other than a vacancy caused by expiration of term is a member of the same
20 political party as the commissioner whom he replaces.
21 (d) When a vacancy occurs in the membership for any reason, the replacement shall be
22 appointed for the unexpired term under this Subsection (5) and may not be reappointed.
23 (6) (a) (i) Members who are not government employees shall receive no compensation or
24 benefits for their services, but may receive per diem and expenses incurred in the performance of
25 the member's official duties at the rates established by the Division of Finance under Sections
26 63A-3-106 and 63A-3-107.
27 (ii) Members may decline to receive per diem and expenses for their service.
28 (b) (i) State government officer and employee members who do not receive salary, per
29 diem, or expenses from their agency for their service may receive per diem and expenses incurred
30 in the performance of their official duties from the commission at the rates established by the
31 Division of Finance under Sections 63A-3-106 and 63A-3-107.

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1 (ii) State government officer and employee members may decline to receive per diem and
2 expenses for their service.
3 (c) (i) Local government members who do not receive salary, per diem, or expenses from
4 the entity that they represent for their service may receive per diem and expenses incurred in the
5 performance of their official duties at the rates established by the Division of Finance under
6 Sections 63A-3-106 and 63A-3-107.
7 (ii) Local government members may decline to receive per diem and expenses for their
8 service.
9 Section 3. Section 20A-12-104 is amended to read:
10 20A-12-104. Procedures governing meetings of judicial nominating commissions.
11 (1) The Judicial Council shall:
12 (a) enact rules establishing procedures governing the meetings of the judicial nominating
13 commissions; and
14 (b) ensure that those procedures include:
15 (i) a minimum recruitment period of 30 days and a procedure to extend that period for an
16 additional 30 days if fewer than nine applications are received for a judicial vacancy;
17 (ii) standards for maintaining the confidentiality of the applications and related documents;
18 (iii) standards governing the release of applicant names before nomination;
19 (iv) standards for destroying the records of the names of applicants, applications, and
20 related documents upon completion of the nominating process;
21 (v) an opportunity for public comment concerning the nominating process, qualifications
22 for judicial office, and individual applicants;
23 [(vi) evaluation criteria for the selection of judicial nominees;]
24 [(vii) a voting procedure for screening applicants and selecting nominees;]
25 [(viii)] (vi) procedures for taking summary minutes at nominating commission meetings;
26 [(ix)] (vii) procedures for simultaneously forwarding the names of nominees to the
27 governor, the president of the Senate, and the Office of Legislative Research and General Counsel;
28 and
29 [(x)] (ix) standards governing a nominating commissioner's disqualification and inability
30 to serve.
31 (2) (a) Each nominating commission shall establish procedures for evaluating and

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1 screening applicants and selecting nominees that are consistent with this Subsection (2).
2 (b) (i) Except as provided in Subsection (2)(b)(ii), if a judicial nominating commission
3 receives 15 or more applications to fill a judicial vacancy, the nominating commission shall submit
4 at least five names to the governor.
5 (ii) Notwithstanding Subsection (2)(b)(i), if five applicants do not receive the required
6 number of votes as specified in Subsection (2)(d) from the nominating commission, the
7 commission shall submit only the names of applicants that received the required number of votes,
8 but must submit the names of at least three applicants.
9 (c) In determining whether or not to submit an applicant's name to the governor, a
10 commission may not decline to consider an applicant merely because:
11 (i) the nominating commission had declined to submit that candidate's name to the
12 governor to fill a previous vacancy;
13 (ii) a previous nominating commission had declined to submit that candidate's name to the
14 governor; or
15 (iii) that nominating commission or a previous nominating commission had submitted the
16 applicant's name to the governor and the governor selected someone else to fill the vacancy.
17 (d) The vote required to submit an applicant's name to the governor is as follows:
18 (i) if all seven members of the nominating commission are present and considering
19 applicants, a vote in favor of the applicant by four commissioners submits the candidate's name
20 to the governor;
21 (ii) if only six members of the nominating commission are present and considering
22 applicants because one member is unable to attend, has recused himself or is otherwise
23 disqualified, a vote in favor of the applicant by four commissioners submits the candidate's name
24 to the governor;
25 (iii) if only five members of the nominating commission are present and considering
26 applicants because two members are unable to attend, have recused themselves, or are otherwise
27 disqualified, a vote in favor of the applicant by three commissioners submits the candidate's name
28 to the governor; and
29 (iv) if only four members of the nominating commission are present and considering
30 applicants because three members are unable to attend, have recused themselves, or are otherwise
31 disqualified, a vote in favor of the applicant by three commissioners submits the candidate's name

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1 to the governor.
2 [(2)] (3) A judicial nominating commission may not nominate a justice or judge who was
3 not retained by the voters for the office for which the justice or judge was defeated until after the
4 expiration of that term of office.
5 [(3)] (4) Judicial nominating commissions are exempt from the requirements of Title 52,
6 Chapter 4, Open and Public Meetings, and Title 63, Chapter 46a, Utah Administrative Rulemaking
7 Act.
8 Section 4. Effective date.
9 If approved by two-thirds of all the members elected to each house, this act takes effect
10 upon approval by the governor, or the day following the constitutional time limit of Utah
11 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
12 date of veto override.

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