Please go to the website: judges.utah.gov for recommendations on the 88 judges that are up for re-election this November. The work has already been done. At the site you will find a narrative on each judge, ratings from laypersons, lawyers and other professionals who have appeared in his or her courtroom, and a suggestion on how to vote.
This is the work of the fairly new Judicial Performance Evaluation Commission, or JPEC. We are 13 volunteer commissioners, appointed by the three branches of government to provide this service to voters. Our only desire is to help improve an already-outstanding judiciary in the state. Half of us are lawyers (including a former judge), and half are not. There is political balance on the commission, and no partisan agendas are tolerated. We simply make merit-based recommendations to the voters each election cycle, politics aside.
As a voter, you may choose to follow our recommendations or not.
Why should anyone trust our evaluations?
We do an enormous amount of work to prepare these recommendations. The commissioners and a staff at the Capitol spend hours and hours studying surveys from lawyers, court staff, jurors and courtroom professionals (e.g., social workers, probation officers) before voting internally on the judge. There are additional hours spent in deliberation and debate. Some judges are invited in to appear before the commission if the reports are critical; this allows them to defend themselves. I’ll just say that we have had some classic moments in these encounters.
Why are so many judges given a 13-0 vote for retention?
One conclusion I’ve arrived at, after poring over hundreds of reports on the performance of hundreds of judges, is that, by and large, we have excellent judges in this state. The vetting process for nomination to the bench is rigorous and exacting. Then JPEC periodically reviews the performance of each sitting judge, in order to make a recommendation to voters every time they seek another term of office.
Because a large number of judges standing for retention election receive “13-0 for retention” votes from the commission, it might appear as if nearly every judge’s recommendation is a whitewash, and that some sort of sham system is in place.
Nothing could be further from the truth.
Occasionally, if the vote is to not recommend retention, the judge can either choose to run, in spite of that recommendation or, in some cases, choose to resign. The process works to educate voters and continually improve the performance of the judiciary.
How are you represented in the process?
My favorite part of the process is the role of courtroom observers. Everyday citizens are enlisted to sit in a judge’s courtroom and evaluate a judge. They are not law trained, but they understand when someone in the courtroom is being mistreated or dealt with unfairly. This comes under a category known as Procedural Fairness. If a judge scores highly on the technical aspects of his or her job, this behavioral piece, by itself, could trigger a recommendation to not retain. Both the judiciary and the citizenry want the participants in a courtroom to feel as if they have been adequately heard and fairly treated — with dignity, respect and equality.
Why does this smell so good?
We are fortunate to live in a state where voters do not elect our judges by popular vote. Can you imagine the nightmare of judges running for office, soliciting donations from lawyers and law firms who would eventually appear before them in a courtroom? Can you imagine agreeing to endorse a judge-candidate for election and what favors that act might encourage? Or what if you chose not to endorse the aspiring judge and you had to appear before that same judge in his or her courtroom? That whole approach to justice has a bad smell to it.
Go to judges.utah.gov to get familiar with the judges in your voting district. It will make you feel better when you leave the voting booth in November, whether you follow our recommendations or not.
Robert S. Fotheringham lives in Salt Lake City.