This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Feb 27, 2017 at 4:23 PM by lpoole.
Senator Todd Weiler proposes the following substitute bill:





Chief Sponsor: Todd Weiler

House Sponsor: Mike K. McKell


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      [
     ▸     amends provisions related to publication of judicial performance evaluations; and] ←Ŝ
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

31     Be it enacted by the Legislature of the state of Utah:
31a     Ŝ→      Section 1. Section 63G-2-305 is amended to read:
     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.
32          Section Ŝ→ [
1] 2 ←Ŝ . Section 78A-12-201 is amended to read:
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→ [
using the same procedure used to appoint the member being
59     replaced
] by the same appointing authority that appointed the member creating the vacancy ←Ŝ
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→ [
2] 3 ←Ŝ . Section 78A-12-203 is amended to read:
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          [(e)] (f) The commission may only disclose the final commission vote on whether or
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 [and], the presiding judge of the
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→ [
complete] ←Ŝ respondent group, including attorneys, court
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          [(7)] (8) The commission may make rules in accordance with Title 63G, Chapter 3,
166     Utah Administrative Rulemaking Act, as necessary to administer the evaluation required by
167     this section.
168          Section Ŝ→ [
3] 4 ←Ŝ . Section 78A-12-204 is amended to read:
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          [(a)] (i) attorneys who have appeared before the judge as counsel;
176          [(b)] (ii) jurors who have served in a case before the judge; and
177          [(c)] (iii) court staff who have worked with the judge.
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 [appropriate] necessary to include
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 [the reference is in general
285     terms] necessary to explain performance in the current reporting period and giving primary
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→ [
[] ←Ŝ The Ŝ→ [] In addition to publishing the report on the commission's Internet
289a     website, the
] ←Ŝ
290     commission may Ŝ→ [
also] ←Ŝ make the report of the judicial performance evaluation immediately
291     preceding the judge's retention election publicly available through Ŝ→ [
[] ←Ŝ other means within
292     budgetary constraints Ŝ→ [
] the regular process conducted by the lieutenant governor for the
293     dissemination of voter information referred to in Subsection (8)
] ←Ŝ
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          [(9) The commission may also provide any information collected during the course of a
298     judge's judicial performance evaluation immediately preceding the judge's retention election to
299     the public to the extent that information is not otherwise subject to restrictions on disclosure.]
300          [(10)] (9) The commission shall provide the Judicial Council with:
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          [(11)] (10) The Judicial Council shall provide information obtained concerning a judge
304     under Subsection [(10)] (9) to the subject judge's presiding judge, if any.