PRESS RELEASE

Salt Lake City, February 25, 2025 – Following Monday’s House Judiciary Standing Committee’s 7-2 vote on House Bill 512 – Judicial Retention Changes, the Utah State Bar is strengthening its opposition in a not-so-veiled attempt by the Legislature to put its thumb on the scale in judicial retention elections. The bill’s sponsor, House Majority Whip Karianne Lisonbee, said in the meeting before the committee vote that candidates are identified with political affiliations so voters know what to expect to inform voters in their decision making and that “judges should, too.”

However, the information that voters would get comes from the bill’s proposed politically driven Joint Legislative Committee on Judicial Performance. This new committee, composed solely of nine legislators, would override the established Judicial Performance Evaluation Commission (JPEC), which the legislature created in 2008 to provide a balanced, transparent, and data-driven evaluation of judges. Unlike JPEC, which evaluates judges based on well-defined criteria—including courtroom management, judicial temperament, integrity, legal ability, and caseload management—the proposed legislative committee could base its recommendations on subjective opinions and political biases.

Rather than reinforcing JPEC’s role in educating voters, the bi-partisan legislative committee that chooses to recommend — or not recommend — a judge for retention, has its opinion printed next to a judge’s name on the ballot. This action allowed in the bill is contrary to state law (20A-3a-501(1)(a)), which prohibits campaigning at polling places. The Bar views this provision in the bill to be an underhanded way of persuading voters to vote based on political preferences and may potentially force a judge to campaign against the committee’s unfavorable recommendation to keep his or role on the bench.

RELATED: Utah State Bar Holds Firm on Opposition to Bills That Undermine the Judiciary

Attorney, former Bar President, former JPEC Chair, and former Republican legislator Rep. V. Lowry Snow (2012-2022) was among the architects of JPEC beginning with a task force in 2007. He issued the following statement:

“Lawyers of all political stripes understand that our democracy demands that judges be able to make decisions based on the facts and law before them and not based on partisan political considerations. Certainly, no judge should fear being voted out for issuing a decision with which politicians may disagree.

JPEC was formed to promote both public accountability and performance improvement for judges with non-partisan, objective, and proven performance standards. Utah’s JPEC is a model for the nation and is supported by data that shows judges with no retention recommendations often step down before facing election, new judges with some low marks go on to improve their performance, and that the public uses JPEC to guide them when voting on judges standing for retention.”

He continued, “House Bill 512 undermines JPEC by allowing the legislature to weigh in on judicial retention for political purposes. Equally troubling is the fact that the legislature’s recommendation will appear next to the judge’s name on the ballot giving the legislature an unfair and constitutionally improper way of influencing judicial retention elections.”

The Bar echoes his sentiments adding that the sweeping authority that HB 512 gives could lead to partisan scrutiny of judges for rulings that legislators disagree with, undermining judicial independence and due process. Judges could be subjected to public hearings based on unverified complaints, placing them at risk of being judged in the court of public opinion rather than through established legal procedures.

The Bar’s opposition to this bill and others follows a rigorous, democratic process. The Bar’s Governmental Relations Committee (GRC), which includes representatives from all 38 law sections, meets weekly to assess legislative concerns. After discussion and voting, the GRC’s recommendations are reviewed by the Utah State Board of Bar Commissioners, elected by attorneys across the state. The Board then determines appropriate actions, including lobbying efforts, public statements, and legislative updates to legal professionals.

The Bar’s positions on additional bills are listed below:

• SB 203: Proposes significant changes to traditional common law on “standing,” restricting Utahns’ ability to challenge laws that may be unconstitutional.
• SB 296: Allows executive and legislative branches to interfere with leadership selection for the Utah Supreme Court and Court of Appeals, weakening judicial independence.
• SJR 4: Authorize legislative auditors in Utah to compel disclosure of confidential attorney-client communications.
• SJR 9: Significantly reduces the period during which plaintiffs can file challenges against potentially unconstitutional laws.
• HB 480: Mandates judge’s ruling in eviction cases to three calendar days after service of the order, thereby removing a judge’s discretion to consider extenuating circumstances.
• HB 451: This proposal raises the vote threshold for judicial retention from 50% to 67%, the highest in the nation, making it harder to attract and retain qualified judges. It also gives special interests more influence, as they would only need to sway one-third of voters to remove a judge.
• HB 503 & SB 335: Removes the requirement that a claimant submit an affidavit of merit;caps the amount of economic losses a plaintiff can recover to $1 million; obligates the plaintiff and attorney in certain circumstances to pay for incurred attorney fees of the defendant, which impedes access to justice.

About the Utah State Bar
The Utah State Bar was formalized in 1931 to manage and regulate the legal profession by licensing all people who engage in the practice of law. The Bar Commission is made up of lawyers from each judicial district who are elected by the lawyers in those districts.

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PRESS RELEASE

SALT LAKE CITY, February 19, 2025 – The Utah State Bar Commission understands that attorneys, regardless of political persuasion, care about the separation of powers in our government. Therefore, the Bar is holding firm on its opposition to legislation that jeopardizes judicial independence enshrined in the state constitution. Two recent bills are particularly troubling because they establish a system under which judges will be made to answer to the legislature based on any disagreement with a judge’s ruling.

Specifically, House Bill 512 creates a new committee — a Joint Legislative Committee on Judicial Performance to shadow, and potentially override the work of the Judicial Performance Evaluation Commission (JPEC). This bill sponsored by Rep. Karianne Lisonbee is unnecessary given the excellent and transparent work that JPEC is already doing and given that JPEC was created by the Legislature and contains members nominated by leadership from the Legislature, the Governor, and the Chief Justice. The concern expressed by many licensees and our Government Relations Committee is this new entity comprised only of legislators—will inject politics into the current merit-based and nonpartisan judicial evaluation and retention process.

As part of its evaluation, the Committee can request a judge’s disciplinary record from the Judicial Conduct Commission and may investigate “any issue raised by a member of the committee, the Legislature, or a member of the public.” (See H.B. 512, lines 1457-1459.) This broad mandate means that any issue, even a disagreement with a judge’s legal ruling, could trigger an evaluation, regardless of whether there is credible evidence of judicial misconduct or incompetence.

In the evaluation process, the Committee would be required to issue a public news release naming the judge, describing the nature of the review, and soliciting comments from Utah legislators and the public. (See lines 1466-1474.) The Committee would then hold a meeting to discuss the judge’s performance, although parts of the meeting may be closed to the public, and the location may not be near the judge’s jurisdiction. (See lines 1477-1502.)

After this meeting, the Committee may vote to recommend that a judge not be retained, using “any other documents or information related to the judge’s judicial performance” as criteria. The lack of a clear definition of “judicial performance” means that the Committee could base its decision on nearly any subjective factor, such as a lawmaker’s disagreement with a judge’s rulings. (See lines 1507-1516.) These recommendations would then appear on the ballot, potentially influencing voters to reject a judge based on  subjective opinions and not objective legal standards. (See lines 579-588; 1526-1539.)

The process is demeaning and of questionable constitutionality. Requiring a judge to answer to a legislative body goes against the core principle of our constitution – a judiciary that can make decisions based on the facts and law without fear of being pilloried in public or removed from the bench.

HB 512 combined with House Bill 412 work to ensure that the proposed new legislative committee will be a partisan body. HB 412 removes the requirement that no more than half of the appointed members on JPEC and the Elected Official and Judicial Compensation Committee be from the same political party. This bill co-sponsored by Rep. Jefferson Burton and Sen. Calvin Musselman would permit members of governing boards and commissions to all be from the same party, removing the long-standing nature of non-partisanship on these boards. We appreciate the efforts of Sen. Brady Brammer, who modified SB 204. The Bar now has a neutral position. However, we remain concerned with SJR 009 sponsored by Sen.  Brammer that dictates the timing to obtain an injunction in a trial court. This resolution is inconsistent with SB 204 by giving only 28 days to enjoin an unconstitutional injunction. We are working with Sen. Brammer to address these issues.

Bills the Bar has opposed are listed below:

SB 203 – Judicial Standing Amendments-First Substitute – Oppose
SB 204 – Suspensive Appeal Amendments-First Substitute – The Bar takes no position on the substitute.
SB 154 – Legislative Audit Amendments-Amended – Oppose
SJR 004 – Joint Resolution Amending Court Rules on Attorney Confidentiality – Oppose
HB 451 – Judicial Election Amendments – Oppose
HB 412 – Boards and Commissions Revisions-Substitute – Oppose
HB 512 – Judicial Retention Changes – Oppose
SJR 009 – Joint Resolution Amending the Rules of Civil Procedure – Oppose

We are grateful for the open dialogue and consideration of lawmakers with the Bar’s opposition to proposed legislation. We are committed to continuing to work collaboratively as these bills, and others as they are introduced, move forward in the legislative process.
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About the Utah State Bar
The Utah State Bar was formalized in 1931 to manage and regulate the legal profession by licensing all people who engage in the practice of law. The Bar Commission is made up of lawyers from each judicial district who are elected by the lawyers in those districts. The Bar’s Governmental Relations Committee is made up of lawyers from each practice section who meet weekly during the legislative session and vote to recommend to the Commission on whether the Bar should take a position on legislation.

CONTACT
Jennifer Weaver
Communications Director
Utah State Bar
Office: 801-746-5237 Cell: 385-329-3558
jweaver@utahbar.org