A Review of the Judicial Conduct Commission - Utah State Legislature

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2. After the filing and service of formal charges, all proceedings shallbe public, except incapacity proceedings.The ABArecommends that allproceedings shall bepublic after the filingand service offormal charges.The commentary on this rule describes confidentiality as necessary inthe initial stages of the disciplinary case to protect a judge’s reputationfrom unfounded charges and to protect witnesses from possiblerecriminations while a claim is being investigated. Once the formalcharges have been filed and served upon a judge, the policy emphasisshifts from confidentiality to the public’s right to know.According to the American Judicature Society, the provisionsgoverning confidentiality in judicial disciplinary actions can be groupedinto four general categories. Appendix E shows the states in each of thefour categories.• Thirty-four states permit public disclosure once a commission,after an investigation and finding of probable cause, files formalcharges against a judge. In these states, the hearing is public.• One state permits public disclosure at the start of the fact-findinghearing.• Thirteen states including Utah permit public disclosure when thecommission files a recommendation for discipline with the state’sSupreme Court. In these states the hearings are confidential. Anycommission recommendation for public discipline is public, and allothers are private.• Two states and the District of Columbia permit public disclosurewhere a Supreme Court orders public discipline. In these statesthe proceedings are confidential unless and until the SupremeCourt orders public discipline.Legislative Membership On JCCUtah and Rhode Island are unique in that they are the only states withlegislators on their judicial conduct commissions. While unique,legislative involvement on the commission is not inappropriate and can bea positive experience. Legislative involvement on the commission wasdetermined appropriate by the drafters of the state’s constitution and wasapproved by popular vote. Legislative involvement is allowed according– 20 – A Review of The Judicial Conduct Commission
to the Utah Code 78-8-102 and four members of the Utah StateLegislature shall be appointed for service on the Judicial ConductCommission.Utah’s legislativemembership wasupheld by theSupreme Court in1999.Legislative involvement has been upheld as constitutional by the UtahSupreme Court. The JCC has had legislative members on the commissionsince 1971, with a six-month removal in 1998-99 while the UtahSupreme Court decided if legislators could be on the commission withoutviolating the principle of separation of powers.Legislator service on the Judicial Conduct Commission wasinterrupted for six-months in 1998-99, due to the Young Supreme Courtruling resulting from a Separation of Powers case. In the first Young casefiled July 10, 1998, Judge David Young asserted that the Judicial ConductCommission violated the Separation of Powers provision of the UtahConstitution due to legislative membership on the commission. TheCourt agreed with Judge Young and held that the “Commission asconstituted...violated Article V, section 1 of the Constitution.” The rulingthus removed legislators from the Judicial Conduct Commission.Six months later, the Supreme Court reversed the previous rulingstating “that legislative membership on the Judicial Conduct Commissionshould be held constitutional.” The Supreme Court, not the JudicialConduct Commission, has ultimate decision-making responsibilityconcerning JCC recommendations, and the court stated that the presenceof legislators on the commission could not violate Article V, section 1 ofthe Constitution. Historical evidence was presented which clearly provedthat the 1984 Constitutional Revision Committee understood theseparation of power issues and established the JCC with theunderstanding that legislators would be among the members.In the Young II case filed January 22, 1999, the Supreme Courtvalidated legislative standing on the commission stating,...it seems plain that the Constitutional Revision Commissionintended the commission [Judicial Conduct Commission] toremain an entity exercising powers available to be shared by otherbranches of government. [Further,] the function performed by thecommission is not the exclusive province of the judiciary, . . . thefunction exercised by the legislators sitting on the commission isnot appertaining to the judicial branch. [Finally], as we said in reWorthen, this court, not the [Judicial Conduct] Commission, hasOffice of the Utah Legislative Auditor General – 21 –
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 and 14: forward more complaints than is don
Page 15 and 16: Worthen.” The court further reque
Page 17 and 18: formal charges to also decide wheth
Page 19: commission members wrote a dissenti
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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