Deputy Salt Lake County Attorney Roger Livingston may have a rocky road to confirmation as a 5th Circuit Court judge.
A Utah Senate committee formed to review Livingston's appointment will review all complaints against him, including allegations raised previously that Livingston at one time considered having his car stolen and destroyed so he wouldn't have to make large lease payments on it.Senate Minority Leader Rex Black, D-Salt Lake, said Wednesday that he wants the "air cleared and no whitewash" over concerns about Livingston's past problems. Senate President Arnold Christensen, who sits on the special confirmation committee with Black, said senators want to hear all testimony pertinent to Livingston's appointment, especially that from those associated with the car incident. The committee will meet at 2 p.m. April 7 in the State Capitol.
In his monthly KUED news conference Thursday, Gov. Norm Bangerter said he stands by the nomination "from what we know now." The governor said he thinks he knows everything about the incident, adding that while he stands by Livingston, the "chips must fall where they may." Livingston must face the senators, be questioned by them, and if the answers are satisfactory he will be confirmed. If they aren't, he won't, and Bangerter said he will put forth another nomination at that time.
Bangerter said his aides talked with Livingston Wednesday evening, again asked if they knew the whole story and when Livingston assured them they did, Bangerter said he would not change his mind on the nomination.
Livingston was investigated by his own county attorney's office in 1980 after rumors surfaced that he had considered having a car he leased stolen and destroyed. He then could have gotten out of a lease he found onerous. The car was never stolen or destroyed.
The investigation, which was supposed to have been kept secret, ended with no charges ever being brought against Livingston. An internal report on the investigation was leaked to the media during a bitter county attorney race in 1986. Livingston was an unsuccessful candidate for the GOP nomination for county attorney that year.
The Deseret News has also learned that the same accusations were made before the recent Salt Lake County Grand Jury. The jury also didn't act; no indictments against Livingston were handed up.
"I think we need to bring in the people who (originally) accused him of this act," said Black. "We can't just have Roger testify. There can be no hint of a whitewash. We need a full hearing to get to the bottom of this."
Livingston told the Deseret News Wednesday it was inappropriate for him to comment on his confirmation hearings except to say "the allegations have all been looked at before. I'll answer all questions put to me by the senators."
The Senate Confirmation Committee will review Livingston's nomination and make a formal recommendation to the Senate as a whole. Unless Livingston's nomination is withdrawn, the Senate by majority vote must confirm or reject him.
Besides appointing himself and Black to the committee, Christensen also appointed Sen. Lyle Hillyard, R-Logan; Sen. K.S. Cornaby, R-Salt Lake; Sen. Haven Barlow, R-Layton; and Sen. Paul Fordham, D-Salt Lake. Christensen said Wednesday night that he also plans to appoint Sen. Darrell Renstrom, D-Ogden, to the committee but hadn't been able to reach Renstrom to see if he can serve. With Renstrom, the committee will have 4-3 Republican majority. Hillyard, Cornaby and Renstrom are attorneys. Hillyard will chair the committee. The Senate, as a whole, is 21-8 Republican.
Livingston is also a Republican. He served in the Utah House in the late 1970s, was an announced candidate for the GOP attorney general nomination in 1980 (he dropped out of the race and went to work for the county attorney) and sought, in 1986, the GOP nomination for county attorney. It was during that short run for the attorney general's office, before Livingston joined the county attorney's office, that the discussions about Livingston's car took place.
Black said Democratic senators met in closed caucus in February and discussed Livingston's possible appointment. "Unanimously, we didn't want him. We could have accepted the other two people recommended by the (Judicial Nominating) Commission to the governor. But not Roger," Black said.
(Livingston had been passed over twice before by the Judicial Nominating Commission because he served as chief deputy to former Salt Lake County Ted Cannon during Cannon's tumultuous administration. Cannon was indicted by the county grand jury and ultimately convicted of several misdemeanors, crimes unrelated to Livingston. Members of the commission believed Livingston qualified to be a judge but thought him too controversial at that time.)
Black asked Bangerter after the February Democratic caucus not to nominate Livingston but to pick one of the other two names approved by the nomination commission. Bangerter formally submitted Livingston's name for confirmation several weeks ago.
Black said Wednesday that Tuesday afternoon he asked aides of the governor if he would withdraw Livingston's nomination. He was again told the nomination would not be withdrawn.
Christensen then formally appointed the confirmation committee. It will be the first time such a committee has acted. The Senate, which has the constitutional responsibility to advise and consent on gubernatorial appointments, set up the confirmation committee structure last session. Livingston will be the first judicial nominee reviewed by the committee.
Previously, senators informally reviewed gubernatorial nominees during interim-day caucuses and then went onto the floor of the Senate and quickly confirmed them.
Black and fellow committee member Cornaby told the Deseret News they expect a full hearing on Livingston, not unlike the hearings held by the U.S. Senate Judiciary Committee on U.S. Supreme Court nominations.
There may be one major difference: By majority vote, the Utah Senate committee can decide to close the hearings to the public and press under executive session provisions of the Open Meetings Law. Christensen said he anticipates part of the April 7 hearing will be closed.
"We have to put the rumors to rest one way or the other," Cornaby said. "In fairness to all, Roger can't take the bench with this cloud hanging over his head. We're the court of last resort. He should be exonerated, once and for all, or, well, something else must happen to end this."