Despite experts' warnings, bill to give Utah lawmakers a say in judge elections advances

Yahoo

25-02-2025

Rep. Karianne Lisonbee, R-Clearfield, works at her desk on the House floor at the Capitol in Salt Lake City on Thursday, Feb. 6, 2025. (Photo by Spenser Heaps for Utah News Dispatch)
Retired judges. The Utah State Bar. Courts administrators. Academic experts who study judicial retention systems across the country. All of them warned against upending Utah's current and nationally revered judicial retention process.
More than a dozen people urged lawmakers to stop HB512 in its tracks during the bill's first committee hearing Monday, warning it could inject politics into a system that's supposed to be nonpartisan, lead judges to be beholden to public opinion rather than facts, and even violate separation of powers between the state's three branches of government.
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And yet, after listening to all of these warnings, the House Judiciary Committee voted 7-2 to endorse HB512 and advance it to the House floor. Only the committee's two Democrats — Reps Veronica Mauga, D-Salt Lake City, and Grant Miller, D-Salt Lake City — voted against it.
The bill's sponsor, House Majority Whip Karianne Lisonbee, R-Clearfield, framed her bill as an effort to give voters more information about how to vote in judicial retention elections. She said every election cycle she and other lawmakers get constant questions from voters on how they should vote, indicating that 'many Utahns feel like they don't have enough information to make informed decisions.'
'It is about time that voters have the information they need to vote in judicial retention elections,' she said.
So Lisonbee wants to create a new committee called the Legislative Committee on Judicial Performance, made up solely of nine legislators appointed by the House speaker and Senate president, and only two of whom would be required to be from a different political party. That committee would be free to hold public hearings to evaluate judges based on no set standard.
If the legislative committee votes to recommend — or not recommend — a judge for retention, that recommendation would then be printed next to the judge's name on the ballot. It would also be printed in the voter information pamphlet.
Lisonbee said it would be up to the committee's discretion whether they review a judge or not.
Lisonbee's bill is just one of at least eight bills aimed at creating new rules for the judiciary — part of an effort a leader of the Utah State Bar recently characterized as a 'revenge streak' after at least two high-profile rulings last summer that angered legislators because the courts sided against lawmakers. Taken together, legal experts worry all of these bills could disrupt the balance of power between the legislature and the judiciary, which is supposed to keep the other branches of government in check — but HB512 is of particular concern to the Bar.
Utah already has a judge review body called the Judicial Performance Evaluation Commission (JPEC), which provides voters nonpartisan information regarding how judges score on factors including legal ability, integrity and judicial temperament, and administrative skills. Lisonbee's bill would not replace JPEC, but the legislative committee would be a whole new, separate body that judges would need to answer to.
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Utah's existing JPEC already publishes detailed reports on every judge on its website and provides information for voters in voter pamphlets — but not directly on the ballot. For the 2024 election, performance evaluations for 50 judges were included in that year's voter information pamphlet and the group reported seeing a surge of interest on its website after voters received their ballots.
But to Lisonbee, JPEC isn't doing enough to inform voters.
'JPEC may do a great job, but the voters are not seeing it, and they are not feeling it. It is not something the voters are relying on,' Lisonbee said, arguing that's shown by a lack of variability across counties when it comes to voter retention, which is usually an 80% to 20% split vote.
'So instead of a perfunctory vote against, it seems to me that an informed vote — whether in support or against — would be a preferable exercise of a fundamental right,' Lisonbee said.
Only one person, Maryann Christensen with the conservative group Utah Legislative Watch, encouraged lawmakers to support HB512, calling the current system 'flawed.' She said Utahns rarely vote not to retain judges, pointing to a case in 2006 when a controversial former 3rd District Court Judge Leslie Lewis was ousted by voters.
Lewis lost her bench two years before the Legislature created JPEC in 2008, and six years before the first election cycle that JPEC's evaluations became available to Utahns, in 2012.
Questions about why Utah judges tend to score high and be retained are not new. On its website, JPEC addresses frequently asked questions, including why so many judges have scores that 'meet or exceed minimum performance standards.'
That's because judges with unfavorable evaluations often step down from the bench before the next election, according to JPEC. Judges also receive confidential midterm evaluations from JPEC, which give judges feedback to improve their performance before their next evaluation.
Additionally, JPEC notes Utah already has one of the most rigorous state judicial appointment processes in the country, resulting in high-performing judges.
Lisonbee anticipated concerns that her bill would violate separation of powers principles, threaten the judiciary as an independent body and allow the Legislature to put its thumb on the scale when it comes to judicial retention elections.
She claimed those arguments are simply 'not true' — and that the Legislature has not only a right, but a role to play in setting rules the judiciary must adhere to.
'Our constitution constantly places the Legislature back into the middle of the administration of the courts,' Lisonbee said. 'To say that the courts are an ivory tower off to the side that the Legislature should not interact with is simply not in accordance with the way that our constitution is structured.'
She also argued 'the idea that the judiciary is fully independent from the Legislature is simply false, and is unconstitutionally false. It is structurally meant to be tied to the Legislature.'
But following her comments, the vast majority of people that weighed in on HB512 during Monday's public hearing — 13 out of 14 speakers — urged lawmakers to vote it down.
A former Utah lawmaker, Rep. Lowry Snow, a Republican, was the first to speak against it. He was one of the architects of JPEC when he was serving as president of the Utah State Bar.
'Tap the brakes on this legislation. There are serious issues,' he said, noting the bill would not enact any 'standards' for the legislative committee to review judges against.
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The Utah State Bar has also strongly opposed the bill. Mark Morris, a Bar commissioner, said HB512 'goes far beyond the stated goals of merely educating voters and creating more transparency, a concept with which we agree.'
'The only concern a judge should have is applying facts to the law dispassionately,' he said.
But if HB512 becomes law, Morris said legal experts worry 'that a judge will no longer be concerned solely with applying facts to the law, but be concerned with public opinion, be concerned with the views of a committee.'
'It should never be in the mind of a judge when making a decision whether the public opinions or even the committee opinions will be offended by a particular result,' he said.
Morris also pointed out Utah law currently bans electioneering within 150 feet of a polling place, arguing that if HB512 becomes law, electioneering would occur 'within three inches of the name on a ballot.' That's the Bar's biggest concern, he said.
Michael Drexel, assistant state court administrator at the Administrative Office of the Courts, also opposed HB512.
'I've spoken to enough legislators this session to realize that there is frustration and disappointment with the judiciary, and I suspect that this legislation is coming in part from that frustration and disappointment,' Drexel said. 'But that shouldn't be the basis for making changes to the law that are fundamentally inconsistent with foundational principles of three co-equal branches of government and election integrity.'
'For the judiciary to serve the people, judges must be free to make decisions driven by the law and the facts and not based on who the litigants are and how they might react to those decisions,' Drexel added.
To complaints that judges need to be closer to the people, Drexel said they're already on the 'front lines.'
'They look in the eyes of mothers and fathers and separate them from their children for life,' he said. 'They look into the eyes of defendants and put them in prison. They see it firsthand, and they do care about doing their job well and with fidelity.'
Drexel, however, also welcomed any discussion to help better inform voters. 'If there's a desire to give voters more information, you will find that we will be there at any conversation to discuss how we can be part of that process.'
However, Drexel argued HB512 it's not the 'solution to the problem of voters needing more information,' adding that there's likely more information available to them through JPEC's process than voters are currently 'digesting.'
'But I'm certainly open to the possibility that there are key questions that voters want to answer about judges as they're deciding how to vote that maybe is not as accessible to them as it possibly could be,' he said.
Two retired judges urged lawmakers not to support HB512. They included Kevin Allen, a former 1st District Court judge, and David Connors, a former 2nd District Court judge.
Allen spoke against opening up judicial evaluations to a public hearing where 'people can come and say whatever they want.' He warned that would be 'a very dangerous path to go down' that would be 'disastrous.'
'That's going to be assumed as facts? That's how we're going to do this?' he said. 'That just flies in the face of everything that we stand for. Not just as judges, but as a people.'
Connors was especially concerned about printing a legislative committee's recommendation directly on the ballot. 'To me, that is the aspect of this bill that makes it run completely afoul of our notion of our revered notions of separation of powers,' he said.
Three academic professionals also spoke against the bill arguing Utah's judicial selection and retention process is already nationally renowned.
They included Jordan Singer, a law professor at the New England School of Law in Boston, who said he's been studying judicial performance evaluation programs for nearly two decades, and he was part of the task force that helped set JPEC up back in 2007.
'I monitor every (judicial performance) program in the country,' Singer said. 'There is none finer than what the JPEC in Utah is doing right now.'
He also warned lawmakers against what he predicted would be an unintended consequence of HB512: voter confusion and backlash. He said in the last 10 years, states have been moving away from telling voters how to vote in judicial retention elections.
'Making a direct statement to voters, especially on the ballot itself, will likely anger or frustrate citizens who don't like to be told how to vote,' he said. 'Injecting a joint legislative committee into the judicial evaluation process is likely to create confusion and suspicion, in the sense that voters will question both the work of the joint committee and the JPEC and will be perplexed if the JPEC's assessment does not match that of the joint committee.'
Linda Smith, a Salt Lake City resident and a retired law professor, warned lawmakers against HB512's 'constitutional difficulties,' and urged them not to undermine JPEC's work.
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'They survey lawyers. They survey staff. They survey jurors. They have court observers who collect data, and then they collect data about the judges' processing of cases. All of that data is crunched by the JPEC committee,' Smith said.
She said if that data needs to be more publicly available, 'that's the way to go,' not by establishing a legislative committee.
'I fear we will deter excellent people from remaining judges or applying to be judges if we continue down this politicized path,' she said.
Susan Olson, political scientist who has also studied judicial retention and selection systems around the country, also warned HB512 would be unlike any judicial retention process other states have.
'The degree of potentially partisan intrusion into judicial independence that HB512 will make is unprecedented and a serious violation of the separation of powers,' Olson said.
Lisonbee had the last word on Monday. She concluded her presentation by quoting from a Utah Supreme Court ruling — one that the state's highest court most recently issued to check the Legislature.
In that case, the courts voided a ballot question for a 2024 proposed constitutional amendment, known as Amendment D, that would have weakened voters' ballot initiative power — but the language that appeared on the ballot (written by legislative leaders) characterized the amendment as one that would 'strengthen' and 'clarify' the ballot initiative process.
'In the words of the Utah Supreme Court,' Lisonbee said, 'voters need proper information with sufficient 'clarity' to enable them to 'express their will.''
All seven Republicans present in Monday's committee voted to endorse the bill. It now goes to the House chamber for further consideration.
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