DAR File No. 43918

Judicial Performance Evaluation Commission, Administration

Rule R597-2

Administration of the Commission

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 43918
Filed: 07/26/2019 09:29:17 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to address the administration and operating procedures of the Judicial Performance Evaluation Commission.

Summary of the rule or change:

The changes to this rule were made to further clarify the administration and operating procedures of the Judicial Performance Evaluation Commission.

Statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget.

local governments:

There are no anticipated costs or savings to local governments.

small businesses:

There are no anticipated costs or savings to small businesses.

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

There are no anticipated costs or savings to persons other than small business, business, or local governments.

Compliance costs for affected persons:

There are no anticipated compliance costs for affected persons.

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

There are no anticipated fiscal impacts that this rule may have on businesses.

Jennifer Yim, Executive Director

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 801-538-1652, by FAX at , 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:

09/16/2019

This rule may become effective on:

09/23/2019

Authorized by:

David Roth, Chair

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

There are no anticipated regulatory or fiscal impact that the changes to this rule will have on non-small businesses.

 

 

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 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).

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

(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.

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

(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.

 

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 commission and 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.

 

R597-2-5. Data Publicity.

In response to requests for the commission's data set, the commission shall choose appropriate methods to protect respondent confidentiality. The commission may:

(1) Elect to collapse data elements,

(2) Elect to withhold data elements from release, and

(3) Take other reasonable measures as necessary.]

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) For purposes of disclosure, commissioners shall:

(a) 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; and

(b) 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.

(2) 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:

(a) 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);

(b) any business relationship between the commissioner and the judge;

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

(3) 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.

(4) After making a disclosure, a commissioner may voluntarily recuse him or herself if the commissioner believes the relationship with the judge will impact an unbiased evaluation of the judge.

(5) Recusal will preclude a commissioner from participating in the commission's evaluation of the judge and from voting on whether to recommend the judge for retention.

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

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

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

(7) To disqualify a commissioner:

(a) a motion to disqualify must be seconded; and

(b) ratified by a two-thirds vote of those present.

(8) 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.

(9) 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 commission and 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.

 

R597-2-5. Data Publicity.

In response to requests for the commission's data set, the commission shall choose appropriate methods to protect respondent confidentiality. The commission may:

(1) elect to collapse data elements;

(2) elect to withhold data elements from release; and

(3) take other reasonable measures as necessary.

 

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

Date of Enactment or Last Substantive Amendment: [November 28, 2017]2019

Notice of Continuation: April 13, 2015

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