Judicial Performance Evaluation Commission, Administration

Rule R597-2

Administration of the Commission

Notice of Proposed Rule

(New Rule)

DAR File No.: 33987
Filed: 08/24/2010 11:39:48 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Because the Commission was only established in 2008, it is promulgating this rule to articulate the guidelines that will govern the Commission's operations.

Summary of the rule or change:

The rule provides for promulgating internal operating procedures. It also defines the conditions under which commissioners should disclose, recuse, or disqualify themselves from a judicial evaluation based on a conflict of interest. It articulates a requirement for reporting improper attempts to influence an evaluation. Finally, the rule articulates a requirement for confidentiality about the Commission's evaluation of a particular judge or justice.

State statutory or constitutional authorization for this rule:

• Sections 78A-12-201 through 78A-12-206

Anticipated cost or savings to:

the state budget:

Because the rule addresses commissioner conduct and internal operating procedures for the Commission, there is not anticipated cost or savings to the state budget.

local governments:

Because the Commission has no authority with respect to local government, there is no anticipated cost or savings to local government.

small businesses:

Because the Commission has no authority with respect to small businesses, there is no anticipated cost or savings to small businesses.

persons other than small businesses, businesses, or local governmental entities:

Because the Commission has no authority with respect to persons other than small businesses, businesses, or local government entities, there is no anticipated cost or savings to such entities.

Compliance costs for affected persons:

The Commission assumes all statutory compliance costs. Affected persons do not assume any compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

Because the Commission does not regulate businesses, there is no fiscal impact on businesses.

Joanne Slotnik, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Judicial Performance Evaluation Commission
Administration
420 N STATE ST
SENATE BUILDING B-330
SALT LAKE CITY, UT 84114

Direct questions regarding this rule to:

• Joanne Slotnik at the above address, by phone at 801-538-1652, by FAX at 801-538-1024, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2010

This rule may become effective on:

10/22/2010

Authorized by:

V. Lowry Snow, Chair

R597. Judicial Performance Evaluation Commission, Administration.

R597-2. Administration of the Commission.

R597-2-1. Internal Operating Procedures.

(1) The commission may adopt procedures governing internal operations relating to judicial performance evaluation and meeting protocol, consistent with state statute and these rules.

(2) Proposed amendments to internal operating procedures shall be submitted in writing to all members of the commission in advance of the next regular meeting, at which time a majority of the commission is required for the adoption of the amendment. Amendments become effective immediately upon ratification.

 

R597-2-2. Disclosure, Recusal, and Disqualification.

(1) Disclosure.

(a) Commissioners shall make disclosures at the monthly commission meeting prior to the first scheduled meeting at which the retention evaluation reports for a given class of judges will be discussed or, in any event, no later than the beginning of the meeting at which a particular judge's evaluation is considered.

(b) Each commissioner shall disclose to the commission any professional or personal relationship with a judge that may affect an unbiased evaluation of the judge.

(c) Relationships that may affect an unbiased evaluation of the judge include any contact or association that might influence a commissioner's ability to fairly and reasonably evaluate the performance of any judge or to assess that judge without bias or prejudice, including but not limited to:

(i) family relationships to a state, municipal, or county judge within the third degree (grandparents, parents or parents-in-law, aunts or uncles, children, nieces and nephews and their spouses);

(ii) any business relationship between the commissioner and the judge.

(iii) any personal litigation directly or indirectly involving the judge and the commissioner, the commissioner's family or the commissioner's business;

(d) A commissioner exhibits bias or prejudice when the commissioner is predisposed to decide a cause or an issue in a way that does not leave the commissioner's mind open to exercising the commissioner's duties impartially in a particular case.

(2) Recusal.

(a) As used in this rule, recusal is a voluntary act of self-disqualification by a commissioner.

(b) Recusal encompasses exclusion both from participating in the commission's evaluation of judge and from voting on whether to recommend the judge for retention.

(c) After making a disclosure, a commissioner may voluntarily recuse if the commissioner believes the relationship with the judge will affect an unbiased evaluation of the judge.

(3) Disqualification.

(a) A commissioner may move to vote on the disqualification of another commissioner if:

(i) the other commissioner makes a disclosure and does not voluntarily recuse, and that commissioner's impartiality might reasonably be questioned; or

(ii) the other commissioner does not make a disclosure, but known circumstances suggest that the commissioner's impartiality might reasonably be questioned.

(b) A motion to disqualify must be seconded in order to proceed.

(c) During the discussion concerning possible disqualification, any commissioner may raise any facts concerning another commissioner's ability to fairly and reasonably evaluate the performance of any judge without bias or prejudice.

(d) A two-thirds vote of those present is required to disqualify any commissioner.

(e) Disqualification encompasses exclusion both from participating in the commission's evaluation of a judge and from voting on whether to recommend the judge for retention.

 

R597-2-3. Reporting Improper Attempts to Influence.

A commissioner shall report to the executive committee any form of communication that attempts to influence the evaluation process by improper means, including but not limited to undue pressure, duress, or coercion.

 

R597-2-4. Confidentiality.

(1) The commission enacts this rule to avoid the risk of inconsistent statements by commissioners and to maintain the credibility of the commissionand the integrity of its work product.

(2) Only the commission's designated spokesperson may publicly discuss the evaluation of any particular judge or justice.

(3) No commissioner may publicly advocate for or against the retention of any particular judge or justice.

(4) Notwithstanding other provisions of this subsection, commissioners may publicly discuss the evaluation process, including but not limited to discussion of respondent groups, survey instruments, and the operation of the commission.

 

KEY: internal operating procedures, reporting improper attempts to influence, conflicts of interest, confidentiality

Date of Enactment or Last Substantive Amendment: 2010

Authorizing, and Implemented or Interpreted Law: 78A-12-201 through 78A-12-206