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First Substitute S.B. 29

Senator Mike Dmitrich proposes the following substitute bill:





Sponsor: Mike Dmitrich

             6      This act amends provisions in the Judicial Code to allow for audit by the Office of
             7      Legislative Auditor General. This act provides an immediate effective date.
             8      This act affects sections of Utah Code Annotated 1953 as follows:
             9      AMENDS:
             10          78-8-107, as last amended by Chapter 331, Laws of Utah 2002
             11      Be it enacted by the Legislature of the state of Utah:
             12          Section 1. Section 78-8-107 is amended to read:
             13           78-8-107. Authority of Judicial Conduct Commission -- Disclosure of criminal
             14      misconduct or information -- Procedure for reprimand, censure, removal, suspension, or
             15      involuntary retirement -- Certain orders made public.
             16          (1) (a) The commission shall receive and investigate any complaint against a judge.
             17          (b) (i) If the commission receives a complaint that alleges conduct that may be a
             18      misdemeanor or felony under state or federal law, it shall, unless the allegation is plainly
             19      frivolous, immediately refer the allegation of criminal misconduct and any information
             20      relevant to the potential criminal violation to the local prosecuting attorney having jurisdiction
             21      to investigate and prosecute the crime.
             22          (ii) If the local prosecuting attorney receiving the allegation of criminal misconduct of
             23      a judge practices before that judge on a regular basis, or has a conflict of interest in
             24      investigating the crime, the local prosecuting attorney shall refer this allegation of criminal
             25      misconduct to another local or state prosecutor who would not have that same disability or

             26      conflict.
             27          (iii) The commission may concurrently proceed with its investigation of the complaint
             28      without waiting for the resolution of the criminal investigation by the prosecuting attorney.
             29          (2) During the course of any investigation, the commission:
             30          (a) shall refer any information relating to the criminal conduct alleged and any
             31      evidence which relates to the allegation to which the judge has been accused, unless plainly
             32      frivolous, to the local prosecuting attorney as provided in Subsection (1)(b);
             33          (b) may order a hearing to be held concerning the reprimand, censure, suspension,
             34      removal, or involuntary retirement of a judge;
             35          (c) may, with the written consent of the judge being investigated, resolve a complaint
             36      by issuing an informal order of reprimand which shall be disclosed to:
             37          (i) the person who filed the complaint;
             38          (ii) the judge who is the subject of the complaint;
             39          (iii) the Judicial Council for its use in the judicial recertification process;
             40          (iv) the Supreme Court for issuance of its final order as provided in Subsection (7); and
             41          (v) the person who appointed the municipal justice court judge; and
             42          (d) may, with the written consent of the judge receiving the informal order of
             43      reprimand under Subsection (2)(c), publicly disclose the commission's informal order of
             44      reprimand.
             45          (3) The commission shall provide the judge with all information necessary to prepare
             46      an adequate response or defense, which may include the identity of the complainant.
             47          (4) (a) A hearing may be conducted before a quorum of the commission.
             48          (b) Any finding or order shall be made upon a majority vote of the quorum.
             49          (5) Alternatively, the commission may appoint three special masters, who are judges of
             50      courts of record, to hear and take evidence in the matter and to report to the commission.
             51          (6) (a) After the hearing or after considering the record and report of the masters, if the
             52      commission finds by a preponderance of the evidence that misconduct occurred, it shall order
             53      the reprimand, censure, suspension, removal, or involuntary retirement of the judge.
             54          (b) When a commission order is sent to the Supreme Court, it shall also be:
             55          (i) publicly disclosed; and
             56          (ii) sent to the person or entity who appointed the judge.

             57          (c) Subsection (6)(b)(i) does not apply to a commission informal order of reprimand.
             58          (7) When the commission issues any order, including a stipulated order, that is sent to
             59      the Supreme Court, the record shall include:
             60          (a) the original complaint and any other information regarding violations, or potential
             61      violations, of the Code of Judicial Conduct;
             62          (b) the notice of charges;
             63          (c) all correspondence and other documents which passed between the commission and
             64      the judge;
             65          (d) all letters which may explain the charges;
             66          (e) all affidavits, subpoenas, and testimony of witnesses;
             67          (f) the commission's findings of fact and conclusions of law;
             68          (g) a transcript of any proceedings, including hearings on motions;
             69          (h) a transcript of the evidence;
             70          (i) a summary of all the complaints dismissed by the commission against the judge
             71      which contained allegations or information similar in nature to the misconduct under review by
             72      the Supreme Court;
             73          (j) a summary of all the orders implemented, rejected, or modified by the Supreme
             74      Court against the judge; and
             75          (k) all information in the commission's files on any informal resolution, including any
             76      letter of admonition, comment, or caution, that the commission issued against the judge prior to
             77      May 1, 2000.
             78          (8) (a) Before the implementation, rejection, or modification of any commission order
             79      issued under Subsections (2), (6), and (7) the Supreme Court shall:
             80          (i) review the commission's proceedings as to both law and fact and may permit the
             81      introduction of additional evidence; and
             82          (ii) consider the number and nature of previous orders issued by the Supreme Court
             83      and may increase the severity of the order based on a pattern or practice of misconduct or for
             84      any other reason that the Supreme Court finds just and proper.
             85          (b) In recommending any order, including stipulated orders, the commission may not
             86      place, or attempt to place, any condition or limitation upon the Supreme Court's constitutional
             87      power to:

             88          (i) review the commission's proceedings as to both law and fact; or
             89          (ii) implement, reject, or modify a commission order.
             90          (c) After briefs have been submitted and any oral argument made, the Supreme Court
             91      shall, within 90 days, issue its order implementing, rejecting, or modifying the commission's
             92      order[; and].
             93          (9) (a) Upon an order for involuntary retirement, the judge shall retire with the same
             94      rights and privileges as if the judge retired pursuant to statute.
             95          (b) Upon an order for removal, the judge shall be removed from office and his salary or
             96      compensation ceases from the date of the order.
             97          (c) Upon an order for suspension from office, the judge may not perform any judicial
             98      functions and may not receive a salary for the period of suspension.
             99          (10) (a) The transmission, production, or disclosure of any complaints, papers, or
             100      testimony in the course of proceedings before the commission, the masters appointed under
             101      Subsection (5), or the Supreme Court may not be introduced in any civil action.
             102          (b) The transmission, production, or disclosure of any complaints, papers, or testimony
             103      in the course of proceedings before the commission or the masters appointed under Subsection
             104      (5) may be introduced in any criminal action, consistent with the Utah Rules of Evidence. This
             105      information shall be shared with the prosecutor conducting a criminal investigation or
             106      prosecution of a judge as provided in Subsections (1) and (2).
             107          (c) Complaints, papers, testimony, or the record of the commission's confidential
             108      hearing may not be disclosed by the commission, masters, or any court until the Supreme Court
             109      has entered its final order in accordance with this section, except:
             110          (i) upon order of the Supreme Court;
             111          (ii) upon the request of the judge who is the subject of the complaint;
             112          (iii) as provided in Subsection (10)(d); [or]
             113          (iv) to aid in a criminal investigation or prosecution as provided in Subsections (1) and
             114      (2)[.]; or
             115          (v) this information is subject to audit by the Office of Legislative Auditor General,
             116      and any records released to the Office of Legislative Auditor General shall be maintained as
             117      confidential, except:
             118          (A) for information that has already been made public; and

             119          (B) the final written and oral audit report of the Legislative Auditor General may
             120      present information about the Judicial Conduct Commission as long as it contains no specific
             121      information that would easily identify a judge, witness, or complainant.
             122          (d) Upon the dismissal of a complaint or allegation against a judge, the dismissal shall
             123      be disclosed without consent of the judge to the person who filed the complaint.
             124          (11) The commission shall make rules in accordance with Title 63, Chapter 46a, Utah
             125      Administrative Rulemaking Act, outlining its procedures and the appointment of masters.
             126          (12) A judge who is a member of the commission or the Supreme Court may not
             127      participate in any proceedings involving the judge's own removal or retirement.
             128          (13) Retirement for involuntary retirement as provided in this chapter shall be
             129      processed through the Utah State Retirement Office, and the judge retiring shall meet the
             130      requirements for retirement as specified in this chapter.
             131          Section 2. Effective date.
             132          If approved by two-thirds of all the members elected to each house, this act takes effect
             133      upon approval by the governor, or the day following the constitutional time limit of Utah
             134      Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
             135      the date of veto override.

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