This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Feb 27, 2017 at 4:23 PM by lpoole.
1
2
3
4
5
6
7
8 LONG TITLE
9 General Description:
10 This bill modifies provisions related to judicial performance.
11 Highlighted Provisions:
12 This bill:
13 ▸ addresses appointments to the commission;
14 ▸ requires a certain number of members to vote on recommendations to retain or not
15 retain a judge;
16 ▸ amends provisions related to judicial performance evaluations;
17 ▸ addresses judicial performance surveys; Ŝ→ and
18 [
19 ▸ makes technical changes.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
25a Ŝ→ 63G-2-305, as last amended by Laws of Utah 2015, Chapters 147, 283, and 411 ←Ŝ
26 78A-12-201, as enacted by Laws of Utah 2008, Chapter 248
27 78A-12-203, as last amended by Laws of Utah 2013, Chapter 209
28 78A-12-204, as last amended by Laws of Utah 2011, Chapter 80
29 78A-12-206, as last amended by Laws of Utah 2011, Chapter 80
30
31 Be it enacted by the Legislature of the state of Utah:
31a Ŝ→ Section 1. Section 63G-2-305 is amended to read:
31b 63G-2-305. Protected records.
31c The following records are protected if properly classified by a governmental entity:
31d (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret has
31e provided the governmental entity with the information specified in Section 63G-2-309;
31f (2) commercial information or nonindividual financial information obtained from a person if:
31g (a) disclosure of the information could reasonably be expected to result in unfair competitive
31h injury to the person submitting the information or would impair the ability of the governmental entity
31i to obtain necessary information in the future;
31j (b) the person submitting the information has a greater interest in prohibiting access than the
31k public in obtaining access; and
31l (c) the person submitting the information has provided the governmental entity with the
31m information specified in Section 63G-2-309;
31n (3) commercial or financial information acquired or prepared by a governmental entity to the
31o extent that disclosure would lead to financial speculations in currencies, securities, or commodities that
31p will interfere with a planned transaction by the governmental entity or cause substantial financial
31q injury to the governmental entity or state economy;
31r (4) records, the disclosure of which could cause commercial injury to, or confer a competitive
31s advantage upon a potential or actual competitor of, a commercial project entity as defined in
31t Subsection 11-13-103(4);
31u (5) test questions and answers to be used in future license, certification, registration,
31v employment, or academic examinations;
31w (6) records, the disclosure of which would impair governmental procurement proceedings or
31x give an unfair advantage to any person proposing to enter into a contract or agreement with a
31y governmental entity, except, subject to Subsections (1) and (2), that this Subsection (6) does not restrict
31z the right of a person to have access to, after the contract or grant has been awarded and signed by all
31aa parties, a bid, proposal, application, or other information submitted to or by a governmental entity in
31ab response to:
31ac (a) an invitation for bids;
31ad (b) a request for proposals;☆
31ae ☆ (c) a request for quotes;
31af (d) a grant; or
31ag (e) other similar document;
31ah (7) information submitted to or by a governmental entity in response to a request for
31ai information, except, subject to Subsections (1) and (2), that this Subsection (7) does not restrict the
31aj right of a person to have access to the information, after:
31ak (a) a contract directly relating to the subject of the request for information has been awarded
31al and signed by all parties; or
31am (b) (i) a final determination is made not to enter into a contract that relates to the subject of
31an the request for information; and
31ao (ii) at least two years have passed after the day on which the request for information is issued;
31ap (8) records that would identify real property or the appraisal or estimated value of real or
31aq personal property, including intellectual property, under consideration for public acquisition before
31ar any rights to the property are acquired unless:
31as (a) public interest in obtaining access to the information is greater than or equal to the
31at governmental entity's need to acquire the property on the best terms possible;
31au (b) the information has already been disclosed to persons not employed by or under a duty of
31av confidentiality to the entity;
31aw (c) in the case of records that would identify property, potential sellers of the described
31ax property have already learned of the governmental entity's plans to acquire the property;
31ay (d) in the case of records that would identify the appraisal or estimated value of property, the
31az potential sellers have already learned of the governmental entity's estimated value of the property; or
31ba (e) the property under consideration for public acquisition is a single family residence and the
31bb governmental entity seeking to acquire the property has initiated negotiations to acquire the property
31bc as required under Section 78B-6-505;
31bd (9) records prepared in contemplation of sale, exchange, lease, rental, or other compensated
31be transaction of real or personal property including intellectual property, which, if disclosed prior to
31bf completion of the transaction, would reveal the appraisal or estimated value of the subject property,
31bg unless:
31bh (a) the public interest in access is greater than or equal to the interests in restricting access,
31bi including the governmental entity's interest in maximizing the financial benefit of the transaction; or
31bj (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the
31bk value of the subject property have already been disclosed to persons not employed by or under a duty
31bl of confidentiality to the entity;
31bm (10) records created or maintained for civil, criminal, or administrative enforcement purposes
31bn or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the
31bo records:☆
31bp ☆ (a) reasonably could be expected to interfere with investigations undertaken for enforcement,
31bq discipline, licensing, certification, or registration purposes;
31br (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
31bs proceedings;
31bt (c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;
31bu (d) reasonably could be expected to disclose the identity of a source who is not generally
31bv known outside of government and, in the case of a record compiled in the course of an investigation,
31bw disclose information furnished by a source not generally known outside of government if disclosure
31bx would compromise the source; or
31by (e) reasonably could be expected to disclose investigative or audit techniques, procedures,
31bz policies, or orders not generally known outside of government if disclosure would interfere with
31ca enforcement or audit efforts;
31cb (11) records the disclosure of which would jeopardize the life or safety of an individual;
31cc (12) records the disclosure of which would jeopardize the security of governmental property,
31cd governmental programs, or governmental recordkeeping systems from damage, theft, or other
31ce appropriation or use contrary to law or public policy;
31cf (13) records that, if disclosed, would jeopardize the security or safety of a correctional facility,
31cg or records relating to incarceration, treatment, probation, or parole, that would interfere with the
31ch control and supervision of an offender's incarceration, treatment, probation, or parole;
31ci (14) records that, if disclosed, would reveal recommendations made to the Board of Pardons
31cj and Parole by an employee of or contractor for the Department of Corrections, the Board of Pardons
31ck and Parole, or the Department of Human Services that are based on the employee's or contractor's
31cl supervision, diagnosis, or treatment of any person within the board's jurisdiction;
31cm (15) records and audit workpapers that identify audit, collection, and operational procedures
31cn and methods used by the State Tax Commission, if disclosure would interfere with audits or
31co collections;
31cp (16) records of a governmental audit agency relating to an ongoing or planned audit until the
31cq final audit is released;
31cr (17) records that are subject to the attorney client privilege;
31cs (18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee,
31ct or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or
31cu administrative proceeding;
31cv (19) (a) (i) personal files of a state legislator, including personal correspondence to or from a
31cw member of the Legislature; and
31cx (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of legislative action
31cy or policy may not be classified as protected under this section; and
31cz (b) (i) an internal communication that is part of the deliberative process in connection with☆
31da ☆the preparation of legislation between:
31db (A) members of a legislative body;
31dc (B) a member of a legislative body and a member of the legislative body's staff; or
31dd (C) members of a legislative body's staff; and
31de (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of legislative
31df action or policy may not be classified as protected under this section;
31dg (20) (a) records in the custody or control of the Office of Legislative Research and General
31dh Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation or
31di contemplated course of action before the legislator has elected to support the legislation or course of
31dj action, or made the legislation or course of action public; and
31dk (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the Office
31dl of Legislative Research and General Counsel is a public document unless a legislator asks that the
31dm records requesting the legislation be maintained as protected records until such time as the legislator
31dn elects to make the legislation or course of action public;
31do (21) research requests from legislators to the Office of Legislative Research and General
31dp Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in response to
31dq these requests;
31dr (22) drafts, unless otherwise classified as public;
31ds (23) records concerning a governmental entity's strategy about:
31dt (a) collective bargaining; or
31du (b) imminent or pending litigation;
31dv (24) records of investigations of loss occurrences and analyses of loss occurrences that may be
31dw covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured Employers'
31dx Fund, or similar divisions in other governmental entities;
31dy (25) records, other than personnel evaluations, that contain a personal recommendation
31dz concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal
31ea privacy, or disclosure is not in the public interest;
31eb (26) records that reveal the location of historic, prehistoric, paleontological, or biological
31ec resources that if known would jeopardize the security of those resources or of valuable historic,
31ed scientific, educational, or cultural information;
31ee (27) records of independent state agencies if the disclosure of the records would conflict with
31ef the fiduciary obligations of the agency;
31eg (28) records of an institution within the state system of higher education defined in Section
31eh 53B-1-102 regarding tenure evaluations, appointments, applications for admissions, retention
31ei decisions, and promotions, which could be properly discussed in a meeting closed in accordance with
31ej Title 52, Chapter 4, Open and Public Meetings Act, provided that records of the final decisions about
31ek tenure, appointments, retention, promotions, or those students admitted, may not be classified☆
31el ☆as protected under this section;
31em (29) records of the governor's office, including budget recommendations, legislative proposals,
31en and policy statements, that if disclosed would reveal the governor's contemplated policies or
31eo contemplated courses of action before the governor has implemented or rejected those policies or
31ep courses of action or made them public;
31eq (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis, revenue
31er estimates, and fiscal notes of proposed legislation before issuance of the final recommendations in
31es these areas;
31et (31) records provided by the United States or by a government entity outside the state that are
31eu given to the governmental entity with a requirement that they be managed as protected records if the
31ev providing entity certifies that the record would not be subject to public disclosure if retained by it;
31ew (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body except
31ex as provided in Section 52-4-206;
31ey (33) records that would reveal the contents of settlement negotiations but not including final
31ez settlements or empirical data to the extent that they are not otherwise exempt from disclosure;
31fa (34) memoranda prepared by staff and used in the decision-making process by an
31fb administrative law judge, a member of the Board of Pardons and Parole, or a member of any other
31fc body charged by law with performing a quasi-judicial function;
31fd (35) records that would reveal negotiations regarding assistance or incentives offered by or
31fe requested from a governmental entity for the purpose of encouraging a person to expand or locate a
31ff business in Utah, but only if disclosure would result in actual economic harm to the person or place the
31fg governmental entity at a competitive disadvantage, but this section may not be used to restrict access
31fh to a record evidencing a final contract;
31fi (36) materials to which access must be limited for purposes of securing or maintaining the
31fj governmental entity's proprietary protection of intellectual property rights including patents,
31fk copyrights, and trade secrets;
31fl (37) the name of a donor or a prospective donor to a governmental entity, including an
31fm institution within the state system of higher education defined in Section 53B-1-102, and other
31fn information concerning the donation that could reasonably be expected to reveal the identity of the
31fo donor, provided that:
31fp (a) the donor requests anonymity in writing;
31fq (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
31fr classified protected by the governmental entity under this Subsection (37); and
31fs (c) except for an institution within the state system of higher education defined in Section
31ft 53B-1-102, the governmental unit to which the donation is made is primarily engaged in educational,
31fu charitable, or artistic endeavors, and has no regulatory or legislative authority over the donor, a
31fv member of the donor's immediate family, or any entity owned or controlled by the donor or☆
31fw ☆the donor's immediate family;
31fx (38) accident reports, except as provided in Sections 41-6a-404, 41-12a-202, and 73-18-13;
31fy (39) a notification of workers' compensation insurance coverage described in Section
31fz 34A-2-205;
31ga (40) (a) the following records of an institution within the state system of higher education
31gb defined in Section 53B-1-102, which have been developed, discovered, disclosed to, or received by or on
31gc behalf of faculty, staff, employees, or students of the institution:
31gd (i) unpublished lecture notes;
31ge (ii) unpublished notes, data, and information:
31gf (A) relating to research; and
31gg (B) of:
31gh (I) the institution within the state system of higher education defined in Section 53B-1-102; or
31gi (II) a sponsor of sponsored research;
31gj (iii) unpublished manuscripts;
31gk (iv) creative works in process;
31gl (v) scholarly correspondence; and
31gm (vi) confidential information contained in research proposals;
31gn (b) Subsection (40)(a) may not be construed to prohibit disclosure of public information
31go required pursuant to Subsection 53B-16-302(2)(a) or (b); and
31gp (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
31gq (41) (a) records in the custody or control of the Office of Legislative Auditor General that
31gr would reveal the name of a particular legislator who requests a legislative audit prior to the date that
31gs audit is completed and made public; and
31gt (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the Office
31gu of the Legislative Auditor General is a public document unless the legislator asks that the records in
31gv the custody or control of the Office of Legislative Auditor General that would reveal the name of a
31gw particular legislator who requests a legislative audit be maintained as protected records until the audit
31gx is completed and made public;
31gy (42) records that provide detail as to the location of an explosive, including a map or other
31gz document that indicates the location of:
31ha (a) a production facility; or
31hb (b) a magazine;
31hc (43) information:
31hd (a) contained in the statewide database of the Division of Aging and Adult Services created by
31he Section 62A-3-311.1; or
31hf (b) received or maintained in relation to the Identity Theft Reporting Information System
31hg (IRIS) established under Section 67-5-22;☆
31hh ☆ (44) information contained in the Management Information System and Licensing
31hi Information System described in Title 62A, Chapter 4a, Child and Family Services;
31hj (45) information regarding National Guard operations or activities in support of the National
31hk Guard's federal mission;
31hl (46) records provided by any pawn or secondhand business to a law enforcement agency or to
31hm the central database in compliance with Title 13, Chapter 32a, Pawnshop and Secondhand
31hn Merchandise Transaction Information Act;
31ho (47) information regarding food security, risk, and vulnerability assessments performed by the
31hp Department of Agriculture and Food;
31hq (48) except to the extent that the record is exempt from this chapter pursuant to Section
31hr 63G-2-106, records related to an emergency plan or program, a copy of which is provided to or
31hs prepared or maintained by the Division of Emergency Management, and the disclosure of which would
31ht jeopardize:
31hu (a) the safety of the general public; or
31hv (b) the security of:
31hw (i) governmental property;
31hx (ii) governmental programs; or
31hy (iii) the property of a private person who provides the Division of Emergency Management
31hz information;
31ia (49) records of the Department of Agriculture and Food that provides for the identification,
31ib tracing, or control of livestock diseases, including any program established under Title 4, Chapter 24,
31ic Utah Livestock Brand and Anti-Theft Act or Title 4, Chapter 31, Control of Animal Disease;
31id (50) as provided in Section 26-39-501:
31ie (a) information or records held by the Department of Health related to a complaint regarding
31if a child care program or residential child care which the department is unable to substantiate; and
31ig (b) information or records related to a complaint received by the Department of Health from
31ih an anonymous complainant regarding a child care program or residential child care;
31ii (51) unless otherwise classified as public under Section 63G-2-301 and except as provided
31ij under Section 41-1a-116, an individual's home address, home telephone number, or personal mobile
31ik phone number, if:
31il (a) the individual is required to provide the information in order to comply with a law,
31im ordinance, rule, or order of a government entity; and
31in (b) the subject of the record has a reasonable expectation that this information will be kept
31io confidential due to:
31ip (i) the nature of the law, ordinance, rule, or order; and
31iq (ii) the individual complying with the law, ordinance, rule, or order;
31ir (52) the name, home address, work addresses, and telephone numbers of an individual that☆
31is ☆is engaged in, or that provides goods or services for, medical or scientific research that is:
31it (a) conducted within the state system of higher education, as defined in Section 53B-1-102; and
31iu (b) conducted using animals;
31iv (53) an initial proposal under Title 63N, Chapter 13, Part 2, Government Procurement Private
31iw Proposal Program, to the extent not made public by rules made under that chapter;
31ix (54) in accordance with Section 78A-12-203, any record of the Judicial Performance
31iy Evaluation Commission concerning an individual commissioner's vote on whether or not to
31iz recommend that the voters retain a judge Ŝ→ including information disclosed under Subsection
31ja 78A-12-203(5)(e) ←Ŝ ;
31jb (55) information collected and a report prepared by the Judicial Performance Evaluation
31jc Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter 12, Judicial
31jd Performance Evaluation Commission Act, requires disclosure of, or makes public, the information or
31je report;
31jf (56) records contained in the Management Information System created in Section
31jg 62A-4a-1003;
31jh (57) records provided or received by the Public Lands Policy Coordinating Office in
31ji furtherance of any contract or other agreement made in accordance with Section 63J-4-603;
31jj (58) information requested by and provided to the 911 Division under Section 63H-7a-302;
31jk (59) in accordance with Section 73-10-33:
31jl (a) a management plan for a water conveyance facility in the possession of the Division of
31jm Water Resources or the Board of Water Resources; or
31jn (b) an outline of an emergency response plan in possession of the state or a county or
31jo municipality;
31jp (60) the following records in the custody or control of the Office of Inspector General of
31jq Medicaid Services, created in Section 63A-13-201:
31jr (a) records that would disclose information relating to allegations of personal misconduct,
31js gross mismanagement, or illegal activity of a person if the information or allegation cannot be
31jt corroborated by the Office of Inspector General of Medicaid Services through other documents or
31ju evidence, and the records relating to the allegation are not relied upon by the Office of Inspector
31jv General of Medicaid Services in preparing a final investigation report or final audit report;
31jw (b) records and audit workpapers to the extent they would disclose the identity of a person
31jx who, during the course of an investigation or audit, communicated the existence of any Medicaid
31jy fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or regulation adopted under
31jz the laws of this state, a political subdivision of the state, or any recognized entity of the United States, if
31ka the information was disclosed on the condition that the identity of the person be protected;
31kb (c) before the time that an investigation or audit is completed and the final investigation or
31kc final audit report is released, records or drafts circulated to a person who is not an employee or☆
31kd ☆head of a governmental entity for the person's response or information;
31ke (d) records that would disclose an outline or part of any investigation, audit survey plan, or
31kf audit program; or
31kg (e) requests for an investigation or audit, if disclosure would risk circumvention of an
31kh investigation or audit;
31ki (61) records that reveal methods used by the Office of Inspector General of Medicaid Services,
31kj the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or abuse;
31kk (62) information provided to the Department of Health or the Division of Occupational and
31kl Professional Licensing under Subsection 58-68-304(3) or (4);
31km (63) a record described in Section 63G-12-210;
31kn (64) captured plate data that is obtained through an automatic license plate reader system
31ko used by a governmental entity as authorized in Section 41-6a-2003; and
31kp (65) any record in the custody of the Utah Office for Victims of Crime relating to a victim,
31kq including:
31kr (a) a victim's application or request for benefits;
31ks (b) a victim's receipt or denial of benefits; and
31kt (c) any administrative notes or records made or created for the purpose of, or used to, evaluate
31ku or communicate a victim's eligibility for or denial of benefits from the Crime Victim Reparations
31kv Fund. ←Ŝ
32 Section Ŝ→ [
33 78A-12-201. Judicial Performance Evaluation Commission -- Creation --
34 Membership -- Salary -- Staff.
35 (1) There is created an independent commission called the Judicial Performance
36 Evaluation Commission consisting of 13 members, as follows:
37 (a) two members appointed by the president of the Senate, only one of whom may be a
38 member of the Utah State Bar;
39 (b) two members appointed by the speaker of the House of Representatives, only one
40 of whom may be a member of the Utah State Bar;
41 (c) four members appointed by the members of the Supreme Court, at least one of
42 whom, but not more than two of whom, may be a member of the Utah State Bar;
43 (d) four members appointed by the governor, at least one of whom, but not more than
44 two of whom, may be a member of the Utah State Bar; and
45 (e) the executive director of the Commission on Criminal and Juvenile Justice.
46 (2) (a) The president of the Senate and the speaker of the House of Representatives
47 shall confer when appointing members under Subsections (1)(a) and (b) to ensure that there is
48 at least one member from among their four appointees who is a member of the Utah State Bar.
49 (b) Each of the appointing authorities may appoint no more than half of the appointing
50 authority's members from the same political party.
51 (c) A sitting legislator or a sitting judge may not serve as a commission member.
52 (3) (a) A member appointed under Subsection (1) shall be appointed for a four-year
53 term.
54 (b) A member may serve no more than three consecutive terms.
55 (4) At the time of appointment, the terms of commission members shall be staggered
56 so that approximately half of commission members' terms expire every two years.
57 (5) When a vacancy occurs in the membership for any reason, the replacement shall be
58 appointed for the unexpired term Ŝ→ [
59 replaced
60 (6) (a) Eight members of the commission constitute a quorum.
61 (b) The action of a majority of the quorum constitutes the action of the commission,
62 except that a decision of the commission to recommend that a judge be retained or not be
63 retained may not be made except by a vote of at least six members. Ŝ→ If because of absences the
63a commission is unable to have at least six votes recommending that a judge be retained or not
63b retained, the commission may meet a second time to consider whether to recommend that the
63c judge be retained or not retained. ←Ŝ
64 (c) If a vote on the question of whether to recommend a judge be retained or not be
65 retained ends in a tie or if a decision does not have six votes required by Subsection (6)(b), the
66 commission may make no recommendation concerning the judge's retention.
67 Section Ŝ→ [
68 78A-12-203. Judicial performance evaluations.
69 (1) Beginning with the 2012 judicial retention elections, the commission shall prepare
70 a performance evaluation for:
71 (a) each judge in the third and fifth year of the judge's term if the judge is not a justice
72 of the Supreme Court; and
73 (b) each justice of the Supreme Court in the third, seventh, and ninth year of the
74 justice's term.
75 (2) Except as provided in Subsection (3), the performance evaluation for a judge under
76 Subsection (1) shall consider only the following information but shall give primary emphasis to
77 the information that is gathered and relates to the performance of the judge during the period
78 subsequent to the last judicial retention election of that judge or if the judge has not had a
79 judicial retention election, during the period applicable to the first judicial retention election:
80 (a) the results of the judge's most recent judicial performance survey that is conducted
81 by a third party in accordance with Section 78A-12-204;
82 (b) information concerning the judge's compliance with minimum performance
83 standards established in accordance with Section 78A-12-205;
84 (c) courtroom observation;
85 (d) the judge's judicial disciplinary record, if any;
86 (e) public comment solicited by the commission;
87 (f) information from an earlier judicial performance evaluation concerning the judge
88 except that the commission shall give primary emphasis to information gathered subsequent to
89 the last judicial retention election; and
90 (g) any other factor that the commission:
91 (i) considers relevant to evaluating the judge's performance for the purpose of a
92 retention election; and
93 (ii) establishes by rule.
94 (3) The commission shall make rules concerning the conduct of courtroom observation
95 under Subsection (2), which shall include the following:
96 (a) an indication of who may perform the courtroom observation;
97 (b) a determination of whether the courtroom observation shall be made in person or
98 may be made by electronic means; and
99 (c) a list of principles and standards used to evaluate the behavior observed.
100 (4) (a) As part of the evaluation conducted under this section, the commission shall
101 determine whether to recommend that the voters retain the judge.
102 (b) (i) If a judge meets the minimum performance standards established in accordance
103 with Section 78A-12-205, there is a rebuttable presumption that the commission will
104 recommend the voters retain the judge.
105 (ii) If a judge fails to meet the minimum performance standards established in
106 accordance with Section 78A-12-205, there is a rebuttable presumption that the commission
107 will recommend the voters not retain the judge.
108 (c) The commission may elect to make no recommendation on whether the voters
109 should retain a judge if the commission determines that the information concerning the judge is
110 insufficient to make a recommendation.
111 (d) (i) If the commission deviates from a presumption for or against recommending the
112 voters retain a judge or elects to make no recommendation on whether the voters should retain
113 a judge, the commission shall provide a detailed explanation of the reason for that deviation or
114 election in the commission's report under Section 78A-12-206.
115 (ii) If the commission makes no recommendation because of a tie vote, the commission
116 shall note that fact in the commission's report.
117 (5) (a) The commission shall allow a judge who is the subject of a judicial performance
118 retention evaluation and who has not passed one or more of the minimum performance
119 standards on the midterm evaluation or on the retention evaluation to appear and speak at any
120 commission meeting, except a closed meeting, during which the judge's judicial performance
121 evaluation is considered.
122 (b) The commission may invite any judge to appear before the commission to discuss
123 concerns about the judge's judicial performance.
124 (c) Ŝ→ (i) ←Ŝ The commission may meet in a closed meeting to discuss a judge's judicial
125 performance evaluation by complying with Title 52, Chapter 4, Open and Public Meetings Act.
125a Ŝ→ (ii) The commission may meet in an electronic meeting by complying with Title 52,
125b Chapter 4, Open and Public Meetings Act. ←Ŝ
126 (d) Any record of an individual commissioner's vote on whether or not to recommend
127 that the voters retain a judge is a protected record under Title 63G, Chapter 2, Government
128 Records Access and Management Act.
129 (e) (i) A member of the commission, including a member of the Utah State Bar, may
130 not be disqualified from voting on whether to recommend that the voters retain a judge solely
131 because the member appears before the judge as an attorney, a fact witness, or an expert, so
132 long as the member is not a litigant in a case pending before the judge.
133 (ii) Notwithstanding Subsection (5)(e)(i), a member of the commission shall disclose
134 any conflicts of interest with the judge being reviewed to the other members of the commission
135 before the deliberation and vote of whether to recommend that a judge be retained or not be
136 retained.
137 (iii) Information disclosed under this Subsection (5)(e) is a protected record under Title
138 63G, Chapter 2, Government Records Access and Management Act.
139 [
140 not to recommend that the voters retain a judge.
141 (6) (a) The commission shall compile a midterm report of its judicial performance
142 evaluation of a judge.
143 (b) The midterm report of a judicial performance evaluation shall include information
144 that the commission considers appropriate for purposes of judicial self-improvement.
145 (c) The report shall be provided to the evaluated judge [
146 district in which the evaluated judge serves, and the Judicial Council. If the evaluated judge is
147 the presiding judge, the midterm report shall be provided to the chair of the board of judges for
148 the court level on which the evaluated judge serves.
149 (d) (i) The commission may provide a partial midterm evaluation to a judge whose
150 appointment date precludes the collection of complete midterm evaluation data.
151 (ii) For a newly appointed judge, a midterm evaluation is considered partial when the
152 midterm evaluation is missing a Ŝ→ [
152a staff,
153 court room observers, or intercept survey respondents.
154 (iii) A judge who receives partial midterm evaluation data may receive a statement in
155 acknowledgment of that fact on the judge's voter information pamphlet page.
156 (iv) On or before the beginning of the retention evaluation cycle, the commission shall
157 inform the Judicial Council of the name of any judge who receives a partial midterm
158 evaluation.
159 (7) The commission shall identify a judge whose midterm evaluation:
160 (a) fails to meet minimum performance standards in accordance with Section
161 78A-12-205 or as established by rule; or
162 (b) otherwise demonstrates to the commission that the judge's performance would be of
163 such concern if the performance occurred in a retention evaluation that the judge would be
164 invited to appear before the commission in accordance with Subsection (5)(b).
165 [
166 Utah Administrative Rulemaking Act, as necessary to administer the evaluation required by
167 this section.
168 Section Ŝ→ [
169 78A-12-204. Judicial performance survey.
170 (1) The judicial performance survey required by Section 78A-12-203 concerning a
171 judge who is subject to a retention election shall be conducted on an ongoing basis during the
172 judge's term in office by a third party under contract to the commission.
173 (2) (a) The judicial performance survey shall include as respondents a sample of each
174 of the following groups as applicable:
175 [
176 [
177 [
178 (b) Only a respondent under Subsection (2)(a)(i) who is admitted to practice law in the
179 state and in good standing with the Utah State Bar may evaluate a judge's legal ability under
180 Subsection (7)(a).
181 (3) The commission may include an additional classification of respondents if the
182 commission:
183 (a) considers a survey of that classification of respondents helpful to voters in
184 determining whether to vote to retain a judge; and
185 (b) establishes the additional classification of respondents by rule.
186 (4) All survey responses are anonymous, including comments included with a survey
187 response.
188 (5) If the commission provides any information to a judge or the Judicial Council, the
189 information shall be provided in such a way as to protect the confidentiality of a survey
190 respondent.
191 (6) A survey shall be provided to a potential survey respondent within 30 days of the
192 day on which the case in which the person appears in the judge's court is closed, exclusive of
193 any appeal, except for court staff and attorneys, who may be surveyed at any time during the
194 survey period.
195 (7) Survey categories shall include questions concerning a judge's:
196 (a) legal ability, including the following:
197 (i) demonstration of understanding of the substantive law and any relevant rules of
198 procedure and evidence;
199 (ii) attentiveness to factual and legal issues before the court;
200 (iii) adherence to precedent and ability to clearly explain departures from precedent;
201 (iv) grasp of the practical impact on the parties of the judge's rulings, including the
202 effect of delay and increased litigation expense;
203 (v) ability to write clear judicial opinions; and
204 (vi) ability to clearly explain the legal basis for judicial opinions;
205 (b) judicial temperament and integrity, including the following:
206 (i) demonstration of courtesy toward attorneys, court staff, and others in the judge's
207 court;
208 (ii) maintenance of decorum in the courtroom;
209 (iii) demonstration of judicial demeanor and personal attributes that promote public
210 trust and confidence in the judicial system;
211 (iv) preparedness for oral argument;
212 (v) avoidance of impropriety or the appearance of impropriety;
213 (vi) display of fairness and impartiality toward all parties; and
214 (vii) ability to clearly communicate, including the ability to explain the basis for
215 written rulings, court procedures, and decisions; and
216 (c) administrative performance, including the following:
217 (i) management of workload;
218 (ii) sharing proportionally the workload within the court or district; and
219 (iii) issuance of opinions and orders without unnecessary delay.
220 (8) If the commission determines that a certain survey question or category of
221 questions is not appropriate for a respondent group, the commission may omit that question or
222 category of questions from the survey provided to that respondent group.
223 (9) (a) The survey shall allow respondents to indicate responses in a manner
224 determined by the commission, which shall be:
225 (i) on a numerical scale from one to five, with one representing inadequate
226 performance and five representing outstanding performance; or
227 (ii) in the affirmative or negative, with an option to indicate the respondent's inability
228 to respond in the affirmative or negative.
229 (b) (i) To supplement the responses to questions on either a numerical scale or in the
230 affirmative or negative, the commission may allow respondents to provide written comments.
231 (ii) The executive director may not provide the commission a comment that would be
232 prohibited in relation to taking an employment action under federal or state law.
233 (10) The commission shall compile and make available to each judge that judge's
234 survey results with each of the judge's judicial performance evaluations.
235 (11) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
236 Administrative Rulemaking Act, as necessary to administer the judicial performance survey.
237 Section 4. Section 78A-12-206 is amended to read:
238 78A-12-206. Publication of the judicial performance evaluation -- Response by
239 judge.
240 (1) (a) The commission shall compile a retention report of its judicial performance
241 evaluation of a judge.
242 (b) The report of a judicial performance evaluation nearest the judge's next scheduled
243 retention election shall be provided to the judge at least 45 days before the last day on which
244 the judge may file a declaration of the judge's candidacy in the retention election.
245 (c) A report prepared in accordance with Subsection (1)(b) and information obtained in
246 connection with the evaluation becomes a public record under Title 63G, Chapter 2,
247 Government Records Access and Management Act, on the day following the last day on which
248 the judge who is the subject of the report may file a declaration of the judge's candidacy in the
249 judge's scheduled retention election if the judge declares the judge's candidacy for the retention
250 election.
251 (d) Information collected and a report that is not public under Subsection (1)(c) is a
252 protected record under Title 63G, Chapter 2, Government Records Access and Management
253 Act.
254 (2) Within 15 days of receiving a copy of the commission's report under Subsection
255 (1)(b):
256 (a) a judge who is the subject of an unfavorable retention recommendation under this
257 section may:
258 (i) provide a written response to the commission about the report; and
259 (ii) request an interview with the commission for the purpose of addressing the report;
260 and
261 (b) a judge who is the subject of a favorable retention recommendation under this
262 section may provide a written response to the commission about the commission's report.
263 (3) (a) After receiving a response from a judge in any form allowed by Subsection (2),
264 the commission may meet and reconsider its decision to recommend the judge not be retained.
265 (b) If the commission does not change its decision to recommend the judge not be
266 retained, the judge may provide a written statement, not to exceed 100 words, that shall be
267 included in the commission's report.
268 (4) The retention report of a judicial performance evaluation shall include:
269 (a) the results of the judicial performance survey, in both raw and summary form;
270 (b) information concerning the judge's compliance with the minimum performance
271 standards, including stating how many of the minimum performance standards the judge met;
272 (c) information concerning any public discipline that a judge has received that is not
273 subject to restrictions on disclosure under Title 78A, Chapter 11, Judicial Conduct
274 Commission;
275 (d) a narrative concerning the judge's performance;
276 (e) the commission's recommendation concerning whether the judge should be
277 retained, or the statement required of the commission if it declines to make a recommendation;
278 (f) the number of votes for and against the commission's recommendation; and
279 (g) any other information the commission considers [
280 in the report to explain the performance standards and the recommendation made.
281 (5) (a) The commission may not include in its retention report specific information
282 concerning an earlier judicial performance evaluation.
283 (b) The commission may refer to information from an earlier judicial performance
284 evaluation concerning the judge in the commission's report only if [
285
286 emphasis to the information gathered during the current reporting period.
287 (6) The retention report of the commission's judicial performance evaluation shall be
288 made publicly available on an Internet website.
289 (7) Ŝ→ [
289a
290 commission may Ŝ→ [
291 preceding the judge's retention election publicly available through Ŝ→ [
292 budgetary constraints Ŝ→ [
293 dissemination of voter information referred to in Subsection (8)
294 (8) The commission shall provide a summary of the judicial performance evaluation
295 for each judge to the lieutenant governor for publication in the voter information pamphlet in
296 the manner required by Title 20A, Chapter 7, Issues Submitted to the Voters.
297 [
298
299
300 [
301 (a) the judicial performance survey results for each judge; and
302 (b) a copy of the retention report of each judicial performance evaluation.
303 [
304 under Subsection [