Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 191 First Substitute (2017GS)

Sponsor

Rep. Snow, V. L.

Final action

Governor Signed 3/17/2017

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• addresses judicial candidacy;
• modifies provisions related to when the commission shall allow a judge to appear before the commission;
• provides for reconsideration if the Utah Supreme Court issues a public sanction of a judge before the voter information pamphlet is published;
• modifies survey requirements;
• addresses confidentiality and anonymity of survey responses;
• modifies minimum performance standards;
• addresses intercept surveys for justice court judges administered by the commission; and
• makes technical amendments.

Every vote on this bill

Bill text

JUDICIARY RELATED AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: V. Lowry Snow
Senate Sponsor: 
Todd Weiler
LONG TITLE
General Description:
This bill modifies provisions related to the judiciary.
Highlighted Provisions:
This bill:
▸ addresses judicial candidacy;
▸ modifies provisions related to when the commission shall allow a judge to appear
before the commission;
▸ provides for reconsideration if the Utah Supreme Court issues a public sanction of a
judge before the voter information pamphlet is published;
▸ modifies survey requirements;
▸ addresses confidentiality and anonymity of survey responses;
▸ modifies minimum performance standards;
▸ addresses intercept surveys for justice court judges administered by the commission;
and
▸ makes technical amendments.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
20A-12-201
, as last amended by Laws of Utah 2014, Chapter 207
78A-12-203
, as last amended by Laws of Utah 2013, Chapter 209
78A-12-204
, as last amended by Laws of Utah 2011, Chapter 80
78A-12-205
, as last amended by Laws of Utah 2011, Chapter 80
78A-12-207
, as enacted by Laws of Utah 2014, Chapter 152
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
20A-12-201
 is amended to read:
20A-12-201.
Judicial appointees -- Retention elections.
(1) (a) Each judicial appointee to a court is subject to an unopposed retention election
at the first general election held more than three years after the judge or justice was appointed.
(b) After the first retention election:
(i) each Supreme Court justice shall be on the regular general election ballot for an
unopposed retention election every tenth year; and
(ii) each judge of other courts shall be on the regular general election ballot for an
unopposed retention election every sixth year.
(2) (a) Each justice or judge of a court of record who wishes to retain office shall, in
the year the justice or judge is subject to a retention election:
(i) file a declaration of candidacy with the lieutenant governor, or with the county clerk
in the candidate's county of residence, within the period beginning on [
April
] 
July
and ending
at 5 p.m. on [
April
] 
July
in the year of a regular general election; and
(ii) pay a filing fee of $50.
(b) (i) Each justice court judge who wishes to retain office shall, in the year the justice
court judge is subject to a retention election:
(A) file a declaration of candidacy with the lieutenant governor, or with the county
clerk in the candidate's county of residence, within the period beginning on [
April
] 
July
and
ending at 5 p.m. on [
April
] 
July
in the year of a regular general election; and
(B) pay a filing fee of $25 for each judicial office.
(ii) If a justice court judge is appointed or elected to more than one judicial office, the
declaration of candidacy shall identify all of the courts included in the same general election.
(iii) If a justice court judge is appointed or elected to more than one judicial office,
filing a declaration of candidacy in one county in which one of those courts is located is valid
for the courts in any other county.
(3) (a) The lieutenant governor shall, no later than August 31 of each regular general
election year:
(i) transmit a certified list containing the names of the justices of the Supreme Court
and judges of the Court of Appeals declaring their candidacy to the county clerk of each
county; and
(ii) transmit a certified list containing the names of judges of other courts declaring
their candidacy to the county clerk of each county in the geographic division in which the judge
filing the declaration holds office.
(b) Each county clerk shall place the names of justices and judges standing for
retention election in the nonpartisan section of the ballot.
(4) (a) At the general election, the ballots shall contain, as to each justice or judge of
any court to be voted on in the county, the following question:
"Shall ______________________________(name of justice or judge) be retained in the
office of ___________________________? (name of office, such as "Justice of the Supreme
Court of Utah"; "Judge of the Court of Appeals of Utah"; "Judge of the District Court of the
Third Judicial District"; "Judge of the Juvenile Court of the Fourth Juvenile Court District";
"Justice Court Judge of (name of county) County or (name of municipality)")
Yes ()
No ()."
(b) If a justice court exists by means of an interlocal agreement under Section
78A-7-102
, the ballot question for the judge shall include the name of that court.
(5) (a) If the justice or judge receives more yes votes than no votes, the justice or judge
is retained for the term of office provided by law.
(b) If the justice or judge does not receive more yes votes than no votes, the justice or
judge is not retained, and a vacancy exists in the office on the first Monday in January after the
regular general election.
(6) A justice or judge not retained is ineligible for appointment to the office for which
the justice or judge was defeated until after the expiration of that term of office.
(7) If a justice court judge is standing for retention for more than one office, the county
clerk shall place the judge's name on the ballot separately for each office. If the justice court
judge receives more no votes than yes votes in one office, but more yes votes than no votes in
the other, the justice court judge shall be retained only in the office for which the judge
received more yes votes than no votes.
Section 2
. Section 
78A-12-203
 is amended to read:
78A-12-203.
Judicial performance evaluations.
(1) Beginning with the 2012 judicial retention elections, the commission shall prepare
a performance evaluation for:
(a) each judge in the third and fifth year of the judge's term if the judge is not a justice
of the Supreme Court; and
(b) each justice of the 
Utah
 Supreme Court in the third, seventh, and ninth year of the
justice's term.
(2) Except as provided in Subsection (3), the performance evaluation for a judge under
Subsection (1) shall consider only:
(a) the results of the judge's most recent judicial performance survey that is conducted
by a third party in accordance with Section 
78A-12-204
;
(b) information concerning the judge's compliance with minimum performance
standards established in accordance with Section 
78A-12-205
;
(c) courtroom observation;
(d) the judge's judicial disciplinary record, if any;
(e) public comment solicited by the commission;
(f) information from an earlier judicial performance evaluation concerning the judge;
and
(g) any other factor that the commission:
(i) considers relevant to evaluating the judge's performance for the purpose of a
retention election; and
(ii) establishes by rule.
(3) The commission shall make rules concerning the conduct of courtroom observation
under Subsection (2), which shall include the following:
(a) an indication of who may perform the courtroom observation;
(b) a determination of whether the courtroom observation shall be made in person or
may be made by electronic means; and
(c) a list of principles and standards used to evaluate the behavior observed.
(4) (a) As part of the evaluation conducted under this section, the commission shall
determine whether to recommend that the voters retain the judge.
(b) (i) If a judge meets the minimum performance standards established in accordance
with Section 
78A-12-205
, there is a rebuttable presumption that the commission will
recommend the voters retain the judge.
(ii) If a judge fails to meet the minimum performance standards established in
accordance with Section 
78A-12-205
, there is a rebuttable presumption that the commission
will recommend the voters not retain the judge.
(c) The commission may elect to make no recommendation on whether the voters
should retain a judge if the commission determines that the information concerning the judge is
insufficient to make a recommendation.
(d) (i) If the commission deviates from a presumption for or against recommending the
voters retain a judge or elects to make no recommendation on whether the voters should retain
a judge, the commission shall provide a detailed explanation of the reason for that deviation or
election in the commission's report under Section 
78A-12-206
.
(ii) If the commission makes no recommendation because of a tie vote, the commission
shall note that fact in the commission's report.
(5) (a) The commission shall allow a judge who is the subject of a judicial performance
retention evaluation and who has not passed one or more of the minimum performance
standards [
on the midterm evaluation or
] on the retention evaluation to appear and speak at any
commission meeting[
, except a closed meeting,
] during which the judge's judicial performance
evaluation is considered.
(b) The commission may invite any judge to appear before the commission to discuss
concerns about the judge's judicial performance.
(c) The commission may meet in a closed meeting to discuss a judge's judicial
performance evaluation by complying with Title 52, Chapter 4, Open and Public Meetings Act.
(d) Any record of an individual commissioner's vote on whether [
or not
] to recommend
that the voters retain a judge is a protected record under Title 63G, Chapter 2, Government
Records Access and Management Act.
(e) The commission may only disclose the final commission vote on whether or not to
recommend that the voters retain a judge.
(6) (a) If the Utah Supreme Court issues a public sanction of a judge after the
commission makes a decision on whether to recommend the judge for retention, but before the
publication of the voter information pamphlet in accordance with Section 
20A-7-702
, the
commission may elect to reconsider the commission's recommendation.
(b) The commission shall invite the judge described in Subsection (6)(a) to appear
before the commission during a closed meeting for the purpose of reconsidering the
commission's recommendation.
(c) The judge described in Subsection (6)(a) may provide a written statement, not to
exceed 100 words, that shall be included in the judge's evaluation report.
(d) The commission shall include in the judge's evaluation report:
(i) the date of the reconsideration;
(ii) any change in the decision of whether to recommend that the voters retain the
judge; and
(iii) a brief statement explaining the reconsideration.
(e) The commission shall submit revisions to the judge's evaluation report to the
lieutenant governor by no later than August 31 of a regular general election year for publication
in the voter information pamphlet, and publish the revisions on the commission's website, and
through any other means the commission considers appropriate and within budgetary
constraints.
[
(6)
] 
(7)
 (a) The commission shall compile a midterm report of [
its
] 
the commission's
judicial performance evaluation of a judge.
(b) The midterm report of a judicial performance evaluation shall include information
that the commission considers appropriate for purposes of judicial self-improvement.
(c) The report shall be provided to the evaluated judge and the presiding judge of the
district in which the evaluated judge serves. If the evaluated judge is the presiding judge, the
midterm report shall be provided to the chair of the board of judges for the court level on which
the evaluated judge serves.
[
(7)
] 
(8)
 The commission may make rules in accordance with Title 63G, Chapter 3,
Utah Administrative Rulemaking Act, as necessary to administer the evaluation required by
this section.
Section 3. Section 
78A-12-204
 is amended to read:
78A-12-204.
Judicial performance survey.
(1) [
The
] 
A third party under contract to the commission shall conduct, on an ongoing
basis during the judge's term in office, the
 judicial performance survey required by Section
78A-12-203
 concerning a judge who is subject to a retention election [
shall be conducted on an
ongoing basis during the judge's term in office by a third party under contract to the
commission
].
(2) The judicial performance survey shall include as respondents a sample of each of
the following groups as applicable:
(a) attorneys who have appeared before the judge as counsel;
(b) jurors who have served in a case before the judge; and
(c) court staff who have worked with the judge.
(3) The commission may include an additional classification of respondents if the
commission:
(a) considers a survey of that classification of respondents helpful to voters in
determining whether to vote to retain a judge; and
(b) establishes the additional classification of respondents by rule.
(4) All survey responses are [
anonymous
] 
confidential
, including comments included
with a survey response.
(5) If the commission provides [
any
] information to a judge or the Judicial Council, the
commission shall provide the
 information [
shall be provided
] in such a way as to protect the
[
confidentiality
] 
anonymity
 of a survey respondent.
(6) A survey shall be provided to a potential survey respondent within 30 days of the
day on which the case in which the person appears in the judge's court is closed, exclusive of
any appeal, except for court staff and attorneys, who may be surveyed at any time during the
survey period.
(7) Survey categories shall include questions concerning a judge's:
(a) legal ability, including the following:
(i) demonstration of understanding of the substantive law and any relevant rules of
procedure and evidence;
(ii) attentiveness to factual and legal issues before the court;
(iii) adherence to precedent and ability to clearly explain departures from precedent;
(iv) grasp of the practical impact on the parties of the judge's rulings, including the
effect of delay and increased litigation expense;
(v) ability to write clear judicial opinions; and
(vi) ability to clearly explain the legal basis for judicial opinions;
(b) judicial temperament and integrity, including the following:
(i) demonstration of courtesy toward attorneys, court staff, and others in the judge's
court;
(ii) maintenance of decorum in the courtroom;
(iii) demonstration of judicial demeanor and personal attributes that promote public
trust and confidence in the judicial system;
(iv) preparedness for oral argument;
(v) avoidance of impropriety or the appearance of impropriety;
(vi) display of fairness and impartiality toward all parties; and
(vii) ability to clearly communicate, including the ability to explain the basis for
written rulings, court procedures, and decisions; and
(c) administrative performance, including the following:
(i) management of workload;
(ii) sharing proportionally the workload within the court or district; and
(iii) issuance of opinions and orders without unnecessary delay.
(8) If the commission determines that a certain survey question or category of
questions is not appropriate for a respondent group, the commission may omit that question or
category of questions from the survey provided to that respondent group.
(9) (a) The survey shall allow respondents to indicate responses in a manner
determined by the commission, which shall be:
(i) on a numerical scale from one to five[
, with one representing inadequate
performance and five representing outstanding performance
]; or
(ii) in the affirmative or negative, with an option to indicate the respondent's inability
to respond in the affirmative or negative.
(b) To supplement the responses to questions on either a numerical scale or in the
affirmative or negative, the commission may allow respondents to provide written comments.
(10) The commission shall compile and make available to each judge that judge's
survey results with each of the judge's judicial performance evaluations.
(11) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, as necessary to administer the judicial performance survey.
Section 4. Section 
78A-12-205
 is amended to read:
78A-12-205.
Minimum performance standards.
(1) The commission shall establish minimum performance standards requiring that:
(a) the judge have no more than one public [
reprimand
] 
sanction
 issued by [
the Judicial
Conduct Commission or
] the Utah Supreme Court during the judge's current term; and
(b) the judge receive a minimum score on the judicial performance survey as follows:
(i) an average score of no less than 65% on each survey category as provided in
Subsection 
78A-12-204
(7); and
(ii) if the commission includes a question on the survey that does not use the numerical
scale, the commission shall establish the minimum performance standard for all questions that
do not use the numerical scale to be substantially equivalent to the standard required under
Subsection (1)(b)(i).
(2) The commission may establish an additional minimum performance standard if the
commission by at least two-thirds vote:
(a) determines that satisfaction of the standard is necessary to the satisfactory
performance of the judge; and
(b) adopts the standard.
(3) The commission may make rules in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, to establish a minimum performance standard.
Section 5. Section 
78A-12-207
 is amended to read:
78A-12-207.
Evaluation of justice court judges.
(1) The Judicial Performance Evaluation Commission shall:
(a) conduct a performance evaluation for each justice court judge in the third and fifth
year of the justice court judge's term;
(b) classify each justice court judge into one of the following three categories:
(i) full evaluation;
(ii) midlevel evaluation; or
(iii) basic evaluation; and
(c) establish evaluation criteria for each of the three categories.
(2) A full evaluation justice court judge shall be subject to the requirements of [
the
Judicial Performance Evaluation Commission Act
] 
this chapter
.
(3) A midlevel evaluation justice court judge shall be governed by [
the Judicial
Performance Evaluation Commission Act
] 
this chapter
, except as provided below:
(a) 
the commission shall administer
 an [
electronic
] intercept survey [
shall be
administered by the commission
] periodically outside the courtroom of the evaluated justice
court judge in lieu of the survey specified in Section 
78A-12-204
; and
(b) courtroom observation may not be conducted for midlevel evaluation justice court
judges.
(4) A basic evaluation justice court judge shall be governed by [
the Judicial
Performance Evaluation Commission Act
] 
this chapter
, except as provided below:
(a) basic evaluation justice court judges shall comply with minimum performance
standards for judicial education, judicial conduct, cases under advisement, and any other
standards the commission may promulgate by administrative rule; and
(b) courtroom observation and surveys may not be conducted for basic evaluation
justice court judges.