A Review of the Judicial Conduct Commission - Utah State Legislature

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Frequently, Judges seek to avoid hearings by submitting to stipulatedagreements.Public dispositions, unlike private dispositions, release someconfidential information to the public. Public dispositions must beincluded in the Utah Voter Information Pamphlet when a judge isconsidered for retention election. Judges that receive a public dispositionmust appear before the Judicial Council and show cause why they shouldnevertheless be certified as a judge qualified for retention election. If thecouncil does not recertify the sitting judge, the judge cannot run forretention election.As part of the certification process, judges must receive at least 70percent positive feedback from the Utah Judicial Council Survey ofJudicial Performance to qualify for retention election. The survey isdivided into two parts: Part I–Certification information; and, PartII–Judicial Self-Improvement. A sample of attorneys who have appearedbefore each judge anonymously respond to the survey which provides PartI information to be used by the Judicial Council “as an aid in its decisionto certify a judge for retention election.” The Part II self-improvementinformation is sent directly to the judge to assist the judge in his or hercourtroom performance. See Appendix B for a copy of the Utah JudicialCouncil Survey of Judicial Performance instrument for both the TrialCourts and the Appellate Court.JCC Operations Have Evolved with Court DecisionsThe JCC operated with few guidelines from 1971 to 1995, but since1996, the JCC has received direction from Supreme Court decisions andfrom legislative mandates. The first major changes occurred in theWorthen decision. In this decision, the justices gave very specificoperating instructions to the JCC. The JCC’s executive director draftedrules to comply with statutes and the Supreme Court decision. It tookseveral appearances before the Administrative Rules Committee before theJCC’s rules were brought into compliance.The landmarkWorthen decisionand other SupremeCourt decisionshave provideddirection to the JCC.Shortly after the Worthen decision, the Supreme Court providedadditional instructions and direction for the Judicial ConductCommission. The court emphasized the requirement that the“Commission should specifically link its findings with the individualcanons of the Code of Judicial Conduct as required by our decision in– 14 – A Review of The Judicial Conduct Commission
Worthen.” The court further requested the “Commission be morespecific in referencing its own guidelines and explaining the reasoning itemployed in reaching its recommendation as to sanction,...”• The Young III case reminded the Judicial Conduct Commission ofthe court’s finding in the McCully case that “we [the UtahSupreme Court] will not overturn the Commission’s findings offact unless they are arbitrary, capricious, or plainly in error, but wereserve the right to draw inferences from the basic facts which maydiffer from the Commission’s inferences and grant no deference tothe Commission’s ultimate decision as to what constitutes anappropriate sanction.” The Worthen, McCully, and Young caseshelped establish some Judicial Conduct Commission guidelines;however, the Legislature has provided for most of the commissionprocedures and rules.The Legislature isresponsible for thecomposition andprocedures of theJCC.Article VIII, Section 13 of the Utah Constitution gives the Legislaturethe authority “to provide for the composition and procedures of theJudicial Conduct Commission.” Recently, the Legislature passed HouseBill 285 during the 2000 General Session and House Bill 136 during the2002 General Session clarifying commission procedures and duties.Proponents of the bills claim that changes in Judicial ConductCommission procedures will increase the effectiveness and the fairness ofthe judicial discipline in Utah.Major changes brought about by passage of House Bill 285 during the2000 General Session include the following: that all complaints must beheard by the commission and complaints may not be dismissed withoutapproval of the commission; should the commission, during the course ofits investigation, find information that a judge committed a misdemeanoror felony, then the information shall be referred to the local prosecutor;and all policy matters shall be referred to the commission.Additionally, the JCC has the ability to internally initiate a complaintshould the external complaint-generation process fail. This ability isimportant because it initiates possible misconduct cases that would not beinvestigated due to some individuals’ reluctance to file formal writtencomplaints for fear of retaliation, intimidation, or loss of employment.House Bill 136, passed during the 2002 General Session, added to theJCC one member of the Utah Court of Appeals and replaced three UtahOffice of the Utah Legislative Auditor General – 15 –
Page 1 and 2: Office of theLEGISLATIVE AUDITOR GE
Page 3 and 4: the consistency of sanctions, the t
Page 5 and 6: officers for high crimes, misdemean
Page 7 and 8: The Judicial Conference can refer a
Page 9 and 10: complaints filed against judges pri
Page 11 and 12: Figure 3 shows that since 1996, the
Page 13: forward more complaints than is don
Page 17 and 18: formal charges to also decide wheth
Page 19 and 20: commission members wrote a dissenti
Page 21 and 22: to the Utah Code 78-8-102 and four
Page 23 and 24: The Legislaturecannot set properpro
Page 25 and 26: AppendicesOffice of the Utah Legisl
Page 27 and 28: Agency ResponseOffice of the Utah L
Page 29 and 30: Wayne L. Welsh, CPANovember 6, 2002
Page 31: Appendix C• House Bill 285, 2000

A Review of the Judicial Conduct Commission - Utah State Legislature

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