Last week I noted the Kansas House had voted to end merit selection for the state’s Court of Appeals. This week’s changes are in Utah, where today that state’s House rejected efforts to delay the transition of the state’s justice courts to retention elections. HB 392 as introduced, would have delayed the use of judicial retention elections for justice court judges until the 2018 general election. Under current law, such retention elections will go into effect upon the expiration of a justice court judge’s current term of office. Moreover, justice court judges would have been subject to the state’s judicial performance evaluation program starting in 2014.

As amended, however, HB 392 (Substitute) allows justice court judges to be evaluated for the 2012, 2014, and 2016 retention elections under two different standards.

• Justice court judges who are employed part-time on July 1, 2012 are to be evaluated by the criteria established before the Judicial Performance Evaluation Commission was established
• Justice court judges who are employed full-time on July 1, 2012 are to be evaluated by the criteria established when the Judicial Performance Evaluation Commission was created in 2008

HB 392 (Substitute) was approved on a 69-0 earlier today.

Also today the House Judicial Committee approved, SB 212 (Substitute). It passed the Senate last week on a 25-0 vote and was approved by the House committee today on a 10-0 vote.

In its present form, the bill

• allows the Judicial Performance Evaluation Commission to vote in a closed meeting on whether or not to recommend that the voters retain a judge
• requires that any record of an individual commissioner’s vote be a protected record not subject to public inspection under the state’s Government Records Access and Management Act
• removes litigants from the judicial performance evaluation survey
• allows survey respondents to supplement responses to survey questions with written comments;
• establishes that the judicial performance evaluation survey is to be reported in three categories: legal ability, judicial temperament and integrity, and administrative abilities
• establishes a clear minimum performance standard of at least 65% in each survey category
• allows only a judge who is the subject of an unfavorable retention recommendation to meet with the commission about its recommendation
• allows the judicial performance evaluation commission to only report public discipline that a judge has received

Additionally, the bill changes the four survey “topics” into  three “categories” through the merger of judicial temperament and integrity and, as noted above, requires a 65% rating or better in each category (the existing standard is an average score of at least a 3.0 [on a 5 point scale] on at least 80% of the questions).

Proposed survey “categories”

legal ability

1. demonstration of understanding of the substantive law and any relevant rules of procedure and evidence;
2. attentiveness to factual and legal issues before the court
3. adherence to precedent and ability to clearly explain departures from precedent
4. grasp of the practical impact on the parties of the judge’s rulings, including the
5. effect of delay and increased litigation expense
6. (new) ability to write clear judicial opinions
7. (new) ability to clearly explain the legal basis for judicial opinions

judicial temperament and integrity

1. demonstration of courtesy toward attorneys, court staff, and others in the judge’s court; maintenance of decorum in the courtroom
2. demonstration of judicial demeanor and personal attributes that promote public trust and confidence in the judicial system
3. preparedness for oral argument
4. avoidance of impropriety or the appearance of impropriety
5. display of fairness and impartiality toward all parties
6. (modified language) ability to clearly communicate, including the ability to explain the basis for written rulings, court procedures, and decisions

administrative performance

1. management of workload
2. sharing proportionally the workload within the court or district
3. issuance of opinions and orders without unnecessary delay

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