Separation of powers? Bill to create lawmaker panel for recommending judicial retentions advances

SALT LAKE CITY (ABC4) — A Utah House committee has advanced a bill that would allow a committee of lawmakers to recommend the retention of judges on the ballot. The bill was passed despite concerns over the separation of powers and objections from courts and the Utah State Bar.

The bill’s sponsor, Rep. Karianne Lisonbee, (R – Syracuse) presented H.B. 512 to the House judiciary committee on Monday, arguing that voters need more information on retaining judges, and that it’s within the legislature’s purview — via the state constitution — to dictate how that happens.

“The idea that the judiciary is completely independent of the legislature is simply false,” Lisonbee said.

Backers of the proposal pointed to Utah’s constitution article III section IV, which reads, in part, “judicial retention elections shall be held on a nonpartisan ballot in a manner provided by statute.” 

The statute that lawmakers are trying to create would set up a “Judicial Conduct Committee” that could “evaluate the judicial performance of a judge” who is subject to a retention election and make that recommendation to the public on the ballot.

According to the bill, the committee can obtain any performance evaluation or disciplinary record and would be required to hold public hearings when they meet to evaluate a judge.

Most of the people who testified Monday were opposed to the bill including a former lawmaker who created Utah’s current system of judicial evaluation known as JPEC, the Judicial Performance Evaluation Commission, a commissioner with the Utah State Bar, and a representative of the judiciary.

“I’d really encourage this body to tap the breaks on this legislation,” said Lowry Snow, a former member of the House and Judiciary committee who helped create JPEC. “There are no standards for the review that would be undertaken by (the new commission),” Snow said. “It violates due process it may have other issues as well.”

Mark Morris, a Utah State Bar Commissioner said they have concerns that this bill goes “far beyond the stated purpose” of providing information to voters.

“I hope we agree that the only concern a judge should have is applying facts to the law dispassionately,” he said. “But if the bill in its current form passes… that judge will no longer be concerned solely with applying facts to the law but be concerned with public opinion (and) be concerned with the views of a committee that may be bipartisan, but on a 4-1 ratio.”

Michael Drexel, the assistant state court administrator also opposed the bill on behalf of the judiciary and said that he’d spoken to enough legislators to know that they’ve expressed “frustration and disappointment” in the judiciary.

“That should 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,” he said.

He argued judges shouldn’t be free to do whatever they want, but they should be free to make decisions based on fact and law.

“If there’s a desire to give voters more info you will find that we will be there at any conversation to discuss how we can be part of that process. We would urge you to study that carefully and we will be a colleague and support in that process,” Drexel said.

Drexel went on to argue that there are better ways to get voters information like a direct mailer that doesn’t impact the possible separation of powers.

Ultimately, the committee passed the bill 7-2 along party lines with the Republicans in support and two Democrats opposed. It moves to a full House vote.