Merit Selection of Judges
The Utah Constitution states: “Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration.” To fulfill this mandate, Utah selects its state court judges through a process called merit selection.
The merit selection process for state judges begins in bipartisan nominating commissions which are constructed in all the judicial districts in the state. Judicial nominating commissions include lawyers and non-lawyers. When a state judicial vacancy occurs, applicants for the position submit their applications to the appropriate nominating commission. The commission reviews the applications, conducts interviews, and assesses the qualifications of each applicant. The nominating commission then selects the five best-qualified applicants (seven for Supreme Court vacancies) whose names are then forwarded to the governor. The governor interviews all nominees and chooses one, who must then be approved by the Utah State Senate before taking office.
Justice court judges are selected through a merit selection process roughly similar to state court judges, except that the appointing authority is the municipality or county rather than the governor. All justice court judges must be approved by the Judicial Council, the governing body of the judiciary.
Utah State Code requires that each judicial appointee is subject to an unopposed retention election in the first general election held at least three years after the judge was appointed. That year becomes their “retention year” and sets their evaluation cycle with the Judicial Performance Evaluation Commission. State and justice court judges face a retention election every six years, while Supreme Court justices are voted on every 10 years.
The Judicial Performance Evaluation Commission (JPEC) evaluates all judges and justices who stand for retention election in Utah, including Utah Supreme Court justices, Utah Court of Appeals judges, district court judges, juvenile court judges, and both municipal and county justice court judges. Each judge is evaluated in the third and fifth year of their term of office. For Supreme Court justices, evaluations are completed in their third, seventh, and ninth year. Federal court judges are not evaluated by JPEC.
JPEC refers to the first evaluation that takes place (in the third year) as the midterm evaluation. Supreme Court justices receive two “midterm” evaluations in the 3rd and 7th years of their terms of office.
Midterm evaluations are confidential to JPEC, the judge, the presiding judge for that court level, and the Judicial Council. The purpose of the midterm evaluation is “self-improvement.” Midterm evaluations give judges credible, private information that they can use to improve their performance as a judge. The midterm evaluations are substantially the same as retention evaluations.
JPEC refers to the second evaluation that takes place in the fifth year as the retention evaluation. For Supreme Court justices, the retention evaluation occurs in the ninth year of their term of office. Retention elections provide a mechanism whereby voters may decide whether or not a judge should continue to hold office for another term.
For retention evaluations, JPEC gathers data on a judge’s performance and prepares a written report that is made available to the public. That report is also used by JPEC to decide whether or not its commissioners recommend that the judge be retained in office for another term.
Retention Survey Overview
There are three different classifications for evaluation of judges in the State of Utah. Each evaluation type has its own standards and requirements that must be met in order for the judge to receive a presumptive pass from JPEC.
Once the evaluations are complete, JPEC commissioners review the results and decide whether to recommend that a judge be retained in office for another term.
JPEC commissioners receive evaluation results for all judges who are scheduled for the next retention election in the following year. The commission assesses the evaluation results and may, by law, meet with the judge as part of that deliberation process. Deliberations occur during the winter and spring of the year prior to an election year. Commission meetings are open to the public; however portions of meetings where commissioners discuss the performance of an individual judge are closed to the public.
Presumptive Pass / Fail
By statute and rule, minimum performance standards are set for judicial evaluations. If a judge receives passing scores on these standards, the judge earns a presumption that s/he will receive a recommendation from JPEC that s/he be retained in office for another term. If a judge fails to pass minimum performance standards, the presumption becomes that the judge will receive a recommendation from JPEC that s/he not be retained in office. JPEC may overcome a presumption and make a different recommendation if it provides a justification for its decision.
The Commission has 13 voting members. The votes of individual commissioners are confidential by law. The vote total on a judge can be lower than 13 for several reasons.
1. A commissioner may recuse from voting on a judge if the commissioner has a conflict of interest or otherwise questions his or her ability to be impartial.
2. A commissioner may be disqualified from voting on a judge if two-thirds of the commissioners present vote to exclude the commissioner from voting on a particular judge, if the commissioner did not recuse and the commissioner’s impartiality might reasonably be questioned.
3. A commissioner may have been absent when a vote on a judge was taken.
4. A commissioner may abstain from voting on a judge. If a commissioner abstains from the vote on a judge, the Commission notes the abstention on the judge’s evaluation webpages.
Judges file for retention in July of an election year. Before filing, they receive their performance evaluation results and the JPEC recommendation. If judges decide not to run in the upcoming election, their performance evaluations are not made public. If they elect to have their names placed on the ballot, their performance evaluation report becomes a public record. It is posted on this website within 90 days.
Voters decide whether or not judges in their jurisdiction should be retained in office for another term. JPEC recommendations and evaluations of judges are available to voters for their consideration. Become an informed voter and know your judge before you vote.