How To Judge A Judge: Understanding Judicial Retention On The Utah Ballot
On the 2020 Utah ballot, alongside the races for president, governor and other state and local leaders, there is a list of state judges and justices up for retention. Jennifer Yim, the executive director of Utah’s Judicial Performance Evaluation Commission (JPEC), explained how voting for judges works.
This interview has been edited for length and clarity.
Caroline Ballard: What’s the role of voters in retaining judges?
Jennifer Yim: We have what's called a “merit selection and retention system” in Utah. Judges are appointed by the chief executive. After that, judges serve terms of office and the deciders about whether judges should continue to serve are voters.
CB: So what is this commission that you're the executive director of?
JY: Voters — if they're lucky — don't find themselves routinely in court, and consequently, don't know much about the judges that are on their ballot. The [Utah] legislature and judicial retention systems like ours create bodies to evaluate the performance of judges based on different measures to give that information to voters so they can cast an informed vote.
The commission has 13 volunteer members. They are appointed by the three branches of government. We do surveys. We do courtroom observation where we send people into court — lay people to go watch judges after they've received training — and write about their experience. Then we collect the data and we report all of that information to voters.
CB: What are some of those performance measures?
JY: Legal ability, administrative skills, integrity and judicial temperament. We evaluate something called procedural fairness, which is about how people are treated in court. We also look at judicial education hours or whether the judge has been subject to any judicial discipline by the Utah Supreme Court.
CB: For this year, the commission recommends keeping all of the judges and justices on Utah's ballot, and the vast majority were recommended unanimously. Why is that?
JY: One reason is that commissioners are required to vote in favor of a judge being retained if they pass all minimum performance standards. But it's also true that the judge has the opportunity to see his or her report before making a decision about whether to run for the retention election or not. If the judge decides not to run for the retention election, we do not publish that information by statute. So, while I want to be really clear that there are lots of reasons why judges choose to step down from the bench and most of them have nothing to do with performance evaluation, it is also true that nearly every time JPEC recommends against the retention of the judge, the judge chooses to resign or retire rather than stand for the retention election with a negative evaluation.
CB: One judge who did not receive a unanimous recommendation this year was Judge John Dow [of the Tooele County Justice Court]. He was accused of unprofessional conduct — sending inappropriate photos to his staff who complained about the workplace. Why was he still recommended?
JY: The judge passed all minimum performance standards. The statute says that a judge may have no more than one sanction by the Judicial Conduct Commission and the Utah Supreme Court. We really take the position that we [provide] important, independent evaluative information that voters can have. But the voters are the ones who should research a judge. They can start with JPEC's information. They can use that, but like most of the other issues on their ballot, they should consider a range of information that matters to them and to make up their own minds.
CB: It seems pretty difficult, actually, to remove a judge. You need to mount a sort of campaign. What are the advantages to this kind of a system of retention?
JY: Look at the two other most common ways that judges serve. One is to have contested elections — and that's judges who have partisan affiliations, have to launch campaigns, make promises on issues and collect money. And make no mistake about it, when judges have to collect money, they have to collect money from litigants and from lawyers who appear regularly in their courtrooms. Then they have to take time away from their jobs to launch campaigns.
On the other end of the extreme, there are lifetime appointments for judges. That doesn't really set up an accountability mechanism for judges. I think it's really important in Utah that we do evaluations of judges' performance and that judges recognize that they are being evaluated all of the time and they feel compelled to pay attention to those evaluations and make improvements over time. Because what voters deserve is the highest quality judiciary possible. And it's through judicial performance evaluation and voters weighing in on the performance of judges that we're going to get that.