Senator Todd Weiler proposes the following substitute bill:




Chief Sponsor: V. Lowry Snow

Senate Sponsor: Todd Weiler


8     General Description:
9          This bill modifies provisions related to the judiciary.
10     Highlighted Provisions:
11          This bill:
12          ▸     addresses judicial candidacy;
13          ▸     modifies provisions related to when the commission shall allow a judge to appear
14     before the commission;
15          ▸     provides for reconsideration if the Utah Supreme Court issues a public sanction of a
16     judge before the voter information pamphlet is published;
17          ▸     modifies survey requirements;
18          ▸     addresses confidentiality and anonymity of survey responses;
19          ▸     modifies minimum performance standards;
20          ▸     addresses intercept surveys for justice court judges administered by the commission;
21     and
22          ▸     makes technical amendments.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:

26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          20A-12-201, as last amended by Laws of Utah 2014, Chapter 207
30          78A-12-203, as last amended by Laws of Utah 2013, Chapter 209
31          78A-12-204, as last amended by Laws of Utah 2011, Chapter 80
32          78A-12-205, as last amended by Laws of Utah 2011, Chapter 80
33          78A-12-207, as enacted by Laws of Utah 2014, Chapter 152

35     Be it enacted by the Legislature of the state of Utah:
36          Section 1. Section 20A-12-201 is amended to read:
37          20A-12-201. Judicial appointees -- Retention elections.
38          (1) (a) Each judicial appointee to a court is subject to an unopposed retention election
39     at the first general election held more than three years after the judge or justice was appointed.
40          (b) After the first retention election:
41          (i) each Supreme Court justice shall be on the regular general election ballot for an
42     unopposed retention election every tenth year; and
43          (ii) each judge of other courts shall be on the regular general election ballot for an
44     unopposed retention election every sixth year.
45          (2) (a) Each justice or judge of a court of record who wishes to retain office shall, in
46     the year the justice or judge is subject to a retention election:
47          (i) file a declaration of candidacy with the lieutenant governor, or with the county clerk
48     in the candidate's county of residence, within the period beginning on [April] July 1 and ending
49     at 5 p.m. on [April] July 15 in the year of a regular general election; and
50          (ii) pay a filing fee of $50.
51          (b) (i) Each justice court judge who wishes to retain office shall, in the year the justice
52     court judge is subject to a retention election:
53          (A) file a declaration of candidacy with the lieutenant governor, or with the county
54     clerk in the candidate's county of residence, within the period beginning on [April] July 1 and
55     ending at 5 p.m. on [April] July 15 in the year of a regular general election; and
56          (B) pay a filing fee of $25 for each judicial office.

57          (ii) If a justice court judge is appointed or elected to more than one judicial office, the
58     declaration of candidacy shall identify all of the courts included in the same general election.
59          (iii) If a justice court judge is appointed or elected to more than one judicial office,
60     filing a declaration of candidacy in one county in which one of those courts is located is valid
61     for the courts in any other county.
62          (3) (a) The lieutenant governor shall, no later than August 31 of each regular general
63     election year:
64          (i) transmit a certified list containing the names of the justices of the Supreme Court
65     and judges of the Court of Appeals declaring their candidacy to the county clerk of each
66     county; and
67          (ii) transmit a certified list containing the names of judges of other courts declaring
68     their candidacy to the county clerk of each county in the geographic division in which the judge
69     filing the declaration holds office.
70          (b) Each county clerk shall place the names of justices and judges standing for
71     retention election in the nonpartisan section of the ballot.
72          (4) (a) At the general election, the ballots shall contain, as to each justice or judge of
73     any court to be voted on in the county, the following question:
74          "Shall ______________________________(name of justice or judge) be retained in the
75     office of ___________________________? (name of office, such as "Justice of the Supreme
76     Court of Utah"; "Judge of the Court of Appeals of Utah"; "Judge of the District Court of the
77     Third Judicial District"; "Judge of the Juvenile Court of the Fourth Juvenile Court District";
78     "Justice Court Judge of (name of county) County or (name of municipality)")
79          Yes ()
80          No ()."
81          (b) If a justice court exists by means of an interlocal agreement under Section
82     78A-7-102, the ballot question for the judge shall include the name of that court.
83          (5) (a) If the justice or judge receives more yes votes than no votes, the justice or judge
84     is retained for the term of office provided by law.
85          (b) If the justice or judge does not receive more yes votes than no votes, the justice or
86     judge is not retained, and a vacancy exists in the office on the first Monday in January after the
87     regular general election.

88          (6) A justice or judge not retained is ineligible for appointment to the office for which
89     the justice or judge was defeated until after the expiration of that term of office.
90          (7) If a justice court judge is standing for retention for more than one office, the county
91     clerk shall place the judge's name on the ballot separately for each office. If the justice court
92     judge receives more no votes than yes votes in one office, but more yes votes than no votes in
93     the other, the justice court judge shall be retained only in the office for which the judge
94     received more yes votes than no votes.
95          Section 2. Section 78A-12-203 is amended to read:
96          78A-12-203. Judicial performance evaluations.
97          (1) Beginning with the 2012 judicial retention elections, the commission shall prepare
98     a performance evaluation for:
99          (a) each judge in the third and fifth year of the judge's term if the judge is not a justice
100     of the Supreme Court; and
101          (b) each justice of the Utah Supreme Court in the third, seventh, and ninth year of the
102     justice's term.
103          (2) Except as provided in Subsection (3), the performance evaluation for a judge under
104     Subsection (1) shall consider only:
105          (a) the results of the judge's most recent judicial performance survey that is conducted
106     by a third party in accordance with Section 78A-12-204;
107          (b) information concerning the judge's compliance with minimum performance
108     standards established in accordance with Section 78A-12-205;
109          (c) courtroom observation;
110          (d) the judge's judicial disciplinary record, if any;
111          (e) public comment solicited by the commission;
112          (f) information from an earlier judicial performance evaluation concerning the judge;
113     and
114          (g) any other factor that the commission:
115          (i) considers relevant to evaluating the judge's performance for the purpose of a
116     retention election; and
117          (ii) establishes by rule.
118          (3) The commission shall make rules concerning the conduct of courtroom observation

119     under Subsection (2), which shall include the following:
120          (a) an indication of who may perform the courtroom observation;
121          (b) a determination of whether the courtroom observation shall be made in person or
122     may be made by electronic means; and
123          (c) a list of principles and standards used to evaluate the behavior observed.
124          (4) (a) As part of the evaluation conducted under this section, the commission shall
125     determine whether to recommend that the voters retain the judge.
126          (b) (i) If a judge meets the minimum performance standards established in accordance
127     with Section 78A-12-205, there is a rebuttable presumption that the commission will
128     recommend the voters retain the judge.
129          (ii) If a judge fails to meet the minimum performance standards established in
130     accordance with Section 78A-12-205, there is a rebuttable presumption that the commission
131     will recommend the voters not retain the judge.
132          (c) The commission may elect to make no recommendation on whether the voters
133     should retain a judge if the commission determines that the information concerning the judge is
134     insufficient to make a recommendation.
135          (d) (i) If the commission deviates from a presumption for or against recommending the
136     voters retain a judge or elects to make no recommendation on whether the voters should retain
137     a judge, the commission shall provide a detailed explanation of the reason for that deviation or
138     election in the commission's report under Section 78A-12-206.
139          (ii) If the commission makes no recommendation because of a tie vote, the commission
140     shall note that fact in the commission's report.
141          (5) (a) The commission shall allow a judge who is the subject of a judicial performance
142     retention evaluation and who has not passed one or more of the minimum performance
143     standards [on the midterm evaluation or] on the retention evaluation to appear and speak at any
144     commission meeting[, except a closed meeting,] during which the judge's judicial performance
145     evaluation is considered.
146          (b) The commission may invite any judge to appear before the commission to discuss
147     concerns about the judge's judicial performance.
148          (c) The commission may meet in a closed meeting to discuss a judge's judicial
149     performance evaluation by complying with Title 52, Chapter 4, Open and Public Meetings Act.

150          (d) Any record of an individual commissioner's vote on whether [or not] to recommend
151     that the voters retain a judge is a protected record under Title 63G, Chapter 2, Government
152     Records Access and Management Act.
153          (e) The commission may only disclose the final commission vote on whether or not to
154     recommend that the voters retain a judge.
155          (6) (a) If the Utah Supreme Court issues a public sanction of a judge after the
156     commission makes a decision on whether to recommend the judge for retention, but before the
157     publication of the voter information pamphlet in accordance with Section 20A-7-702, the
158     commission may elect to reconsider the commission's recommendation.
159          (b) The commission shall invite the judge described in Subsection (6)(a) to appear
160     before the commission during a closed meeting for the purpose of reconsidering the
161     commission's recommendation.
162          (c) The judge described in Subsection (6)(a) may provide a written statement, not to
163     exceed 100 words, that shall be included in the judge's evaluation report.
164          (d) The commission shall include in the judge's evaluation report:
165          (i) the date of the reconsideration;
166          (ii) any change in the decision of whether to recommend that the voters retain the
167     judge; and
168          (iii) a brief statement explaining the reconsideration.
169          (e) The commission shall submit revisions to the judge's evaluation report to the
170     lieutenant governor by no later than August 31 of a regular general election year for publication
171     in the voter information pamphlet, and publish the revisions on the commission's website, and
172     through any other means the commission considers appropriate and within budgetary
173     constraints.
174          [(6)] (7) (a) The commission shall compile a midterm report of [its] the commission's
175     judicial performance evaluation of a judge.
176          (b) The midterm report of a judicial performance evaluation shall include information
177     that the commission considers appropriate for purposes of judicial self-improvement.
178          (c) The report shall be provided to the evaluated judge and the presiding judge of the
179     district in which the evaluated judge serves. If the evaluated judge is the presiding judge, the
180     midterm report shall be provided to the chair of the board of judges for the court level on which

181     the evaluated judge serves.
182          [(7)] (8) The commission may make rules in accordance with Title 63G, Chapter 3,
183     Utah Administrative Rulemaking Act, as necessary to administer the evaluation required by
184     this section.
185          Section 3. Section 78A-12-204 is amended to read:
186          78A-12-204. Judicial performance survey.
187          (1) [The] A third party under contract to the commission shall conduct, on an ongoing
188     basis during the judge's term in office, the judicial performance survey required by Section
189     78A-12-203 concerning a judge who is subject to a retention election [shall be conducted on an
190     ongoing basis during the judge's term in office by a third party under contract to the
191     commission].
192          (2) The judicial performance survey shall include as respondents a sample of each of
193     the following groups as applicable:
194          (a) attorneys who have appeared before the judge as counsel;
195          (b) jurors who have served in a case before the judge; and
196          (c) court staff who have worked with the judge.
197          (3) The commission may include an additional classification of respondents if the
198     commission:
199          (a) considers a survey of that classification of respondents helpful to voters in
200     determining whether to vote to retain a judge; and
201          (b) establishes the additional classification of respondents by rule.
202          (4) All survey responses are [anonymous] confidential, including comments included
203     with a survey response.
204          (5) If the commission provides [any] information to a judge or the Judicial Council, the
205     commission shall provide the information [shall be provided] in such a way as to protect the
206     [confidentiality] anonymity of a survey respondent.
207          (6) A survey shall be provided to a potential survey respondent within 30 days of the
208     day on which the case in which the person appears in the judge's court is closed, exclusive of
209     any appeal, except for court staff and attorneys, who may be surveyed at any time during the
210     survey period.
211          (7) Survey categories shall include questions concerning a judge's:

212          (a) legal ability, including the following:
213          (i) demonstration of understanding of the substantive law and any relevant rules of
214     procedure and evidence;
215          (ii) attentiveness to factual and legal issues before the court;
216          (iii) adherence to precedent and ability to clearly explain departures from precedent;
217          (iv) grasp of the practical impact on the parties of the judge's rulings, including the
218     effect of delay and increased litigation expense;
219          (v) ability to write clear judicial opinions; and
220          (vi) ability to clearly explain the legal basis for judicial opinions;
221          (b) judicial temperament and integrity, including the following:
222          (i) demonstration of courtesy toward attorneys, court staff, and others in the judge's
223     court;
224          (ii) maintenance of decorum in the courtroom;
225          (iii) demonstration of judicial demeanor and personal attributes that promote public
226     trust and confidence in the judicial system;
227          (iv) preparedness for oral argument;
228          (v) avoidance of impropriety or the appearance of impropriety;
229          (vi) display of fairness and impartiality toward all parties; and
230          (vii) ability to clearly communicate, including the ability to explain the basis for
231     written rulings, court procedures, and decisions; and
232          (c) administrative performance, including the following:
233          (i) management of workload;
234          (ii) sharing proportionally the workload within the court or district; and
235          (iii) issuance of opinions and orders without unnecessary delay.
236          (8) If the commission determines that a certain survey question or category of
237     questions is not appropriate for a respondent group, the commission may omit that question or
238     category of questions from the survey provided to that respondent group.
239          (9) (a) The survey shall allow respondents to indicate responses in a manner
240     determined by the commission, which shall be:
241          (i) on a numerical scale from one to five[, with one representing inadequate
242     performance and five representing outstanding performance]; or

243          (ii) in the affirmative or negative, with an option to indicate the respondent's inability
244     to respond in the affirmative or negative.
245          (b) To supplement the responses to questions on either a numerical scale or in the
246     affirmative or negative, the commission may allow respondents to provide written comments.
247          (10) The commission shall compile and make available to each judge that judge's
248     survey results with each of the judge's judicial performance evaluations.
249          (11) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
250     Administrative Rulemaking Act, as necessary to administer the judicial performance survey.
251          Section 4. Section 78A-12-205 is amended to read:
252          78A-12-205. Minimum performance standards.
253          (1) The commission shall establish minimum performance standards requiring that:
254          (a) the judge have no more than one public [reprimand] sanction issued by [the Judicial
255     Conduct Commission or] the Utah Supreme Court during the judge's current term; and
256          (b) the judge receive a minimum score on the judicial performance survey as follows:
257          (i) an average score of no less than 65% on each survey category as provided in
258     Subsection 78A-12-204(7); and
259          (ii) if the commission includes a question on the survey that does not use the numerical
260     scale, the commission shall establish the minimum performance standard for all questions that
261     do not use the numerical scale to be substantially equivalent to the standard required under
262     Subsection (1)(b)(i).
263          (2) The commission may establish an additional minimum performance standard if the
264     commission by at least two-thirds vote:
265          (a) determines that satisfaction of the standard is necessary to the satisfactory
266     performance of the judge; and
267          (b) adopts the standard.
268          (3) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
269     Administrative Rulemaking Act, to establish a minimum performance standard.
270          Section 5. Section 78A-12-207 is amended to read:
271          78A-12-207. Evaluation of justice court judges.
272          (1) The Judicial Performance Evaluation Commission shall:
273          (a) conduct a performance evaluation for each justice court judge in the third and fifth

274     year of the justice court judge's term;
275          (b) classify each justice court judge into one of the following three categories:
276          (i) full evaluation;
277          (ii) midlevel evaluation; or
278          (iii) basic evaluation; and
279          (c) establish evaluation criteria for each of the three categories.
280          (2) A full evaluation justice court judge shall be subject to the requirements of [the
281     Judicial Performance Evaluation Commission Act] this chapter.
282          (3) A midlevel evaluation justice court judge shall be governed by [the Judicial
283     Performance Evaluation Commission Act] this chapter, except as provided below:
284          (a) the commission shall administer an [electronic] intercept survey [shall be
285     administered by the commission] periodically outside the courtroom of the evaluated justice
286     court judge in lieu of the survey specified in Section 78A-12-204; and
287          (b) courtroom observation may not be conducted for midlevel evaluation justice court
288     judges.
289          (4) A basic evaluation justice court judge shall be governed by [the Judicial
290     Performance Evaluation Commission Act] this chapter, except as provided below:
291          (a) basic evaluation justice court judges shall comply with minimum performance
292     standards for judicial education, judicial conduct, cases under advisement, and any other
293     standards the commission may promulgate by administrative rule; and
294          (b) courtroom observation and surveys may not be conducted for basic evaluation
295     justice court judges.