DAR File No. 41620

Judicial Performance Evaluation Commission, Administration

Section R597-2-2

Disclosure, Recusal, and Disqualification

Notice of Proposed Rule

(Amendment)

DAR File No.: 41620
Filed: 05/12/2017 12:53:38 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The change updates the rule with respect to statutory changes made to Subsection 78A-12-203(5) during the 2017 General Session of the Utah Legislature under S.B. 193.

Summary of the rule or change:

This rule amendment adds new statutory provisions to the rule in order to create one location where all requirements about disclosure, recusal, and disqualification are placed. Thus, it restates statutory language in the appropriate places in the rule. Specifically, it: 1) includes conflict of interest as a requirement for recusal, 2) declares disclosures as a protected record, and 3) states a limitation on disqualification pursuant to Subsection 78A-12-203(5)(e)(i).

Statutory or constitutional authorization for this rule:

• Sections 78A-12-101 to 78A-12-207

Anticipated cost or savings to:

the state budget:

The change has no impact on the state budget because it only changes the conditions under which commissioners disclose, recuse, and disqualify for deliberations and voting on judicial retention recommendations. It does not change the number of judges evaluated, which is a central factor in determining the cost of evaluations.

local governments:

The Judicial Performance Evaluation Commission has no dealings with local government, so there is no cost or savings to those entities as a result of this change.

small businesses:

The Commission has no authority with respect to small businesses and no dealings with small businesses; consequently, there is no impact on such entities.

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

The affected persons are the individual, volunteer commissioners who are required by statute to make recommendations about whether judges should be recommended to voters for retention. There is no cost savings to them because there is no cost or savings associated with the limitations placed upon them for disclosure, recusal, and disqualification.

Compliance costs for affected persons:

There are no costs to commissioners for compliance with this rule.

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

The amendment has no fiscal impact on businesses.

John Ashton, Chairperson

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

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

Direct questions regarding this rule to:

• Jennifer Yim at the above address, by phone at , by FAX at , or by Internet E-mail at jyim@utah.gov

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:

07/03/2017

This rule may become effective on:

07/10/2017

Authorized by:

John Ashton, Chair

R597. Judicial Performance Evaluation Commission, Administration.

R597-2. Administration of the Commission.

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 or conflict of interest 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.

(e) Disclosures made with respect to a judge subject to evaluation constitute a protected record pursuant to Subsection 78A-12-203(5)(e).

(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 commissioner may not be disqualified from voting on whether to recommend that the voters retain a judge solely because the member appears before the judge as an attorney, a fact witness, or an expert, pursuant to Subsection 78A-12-203(5)(e)(i).

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

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

[(e)](f) 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.

 

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

Date of Enactment or Last Substantive Amendment: [October 22, 2010]2017

Notice of Continuation: April 13, 2015

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