S.B. 233 Judicial Performance Evaluation Amendments: transcript

Thank you very much. So this one, uh, over the interim we worked quite a bit on a committee related to judicial performance, the Judicial Performance Commission. Uh, this does, uh, a few things. Um, it provides, number one, it provides some additional flexibility for the Judicial Performance Evaluation Commission to do surveys. It was quite prescriptive before. Um, but the real work that the bill is doing is codifying the standards of the appellate courts with regards to the timelines within which they need to decide cases. So previously we basically said, or the courts had said of themselves, their minimum standard was that they, uh, they can have basically three cases that are beyond, you know, a certain amount of time. But then there was a pretty significant re reduction in the number of cases that our Supreme Court in particular was taking on and, uh, and handling. And that created a scenario where sometimes as many as 50% of their cases were late. And that wasn't a problem. And so what this does is it changes it from a, a strict numerical to a percentage basis. It adopts it into the JPEG code so that there's some interaction with the legislature on changing that before it was in the judicial rulemaking code. And that's probably been the more controversial thing, is do we allow the courts to determine their own productivity levels that meet minimum standards? And what we've said, and what we did was we said, you determine now what you think it is. And they did that in their judicial rulemaking. And we said, now we're going to take that and put it into the statute so that in order for you to change it, we need to have a discussion so that, you know, because you know, these, this follows the National state court standards, um, that have been out since 2014, but were not adopted, uh, by the courts through rulemaking. Um, the other thing that it does, which is important, is when a case goes up on appeal, it is on a, on an appellate docket, and the parties submit their briefs. And there's usually, you know, the first brief, the appellant's brief and then the appellate's brief and then a reply brief. But what was happening was the parties would approach the courts and say, can we please have an extension that's normal. That happens in almost every appeal. But then they'd come back again and again, and again and again within oftentimes in, you know, it was typical for seven to nine extensions. Now you do that across the entire system, you start to have a real problem with the administration of justice, uh, within the system. And it wasn't always the court's fault, it was the parties asking for it, but the courts had no accountability with regards to how they managed their docket on the appellate level. And so what this does is it says, we do need to have come up with measurements and it encourages the judges themselves to, to say, how are you going to measure the management of your docket? So those are the primary elements of this. It is an update to the Judicial Performance Evaluation Commission. And like I said, the most controversial part is we took what the courts said they could do in rule, and we put it in statute so that if they change it, there's a little bit of interaction between the legislature and the courts. And with that, I'm open to any questions.

Thank you. Is this, um, evaluation, is this the one that, that voters can access to decide in retention elections?

Yeah, so what typically happens, so there's, when, when a voter, uh, looks at the judicial nominee or the judicial retention elections says, this judge received a blank score, you know, here's the Judicial Conduct Commission or the Judicial Performance Evaluation Commission score, and you can go and look and it has like little graphics and stuff like that. And, but the, the most important thing is from the, from the Judicial Performance Evaluation Commission, is there are certain objective standards that they say, did this judge meet the minimum qualifications? And so this adjusts those minimum qualifications on the appellate level so that, you know, the, so that JPEG is looking at objective data as to whether or not it was met. And previously there were some, but it was, you know, three cases. You can have three late cases essentially is what it was saying. But in 2023, each judge averaged 5.2 cases, so they could have over 50% late. Now, that was an anomaly year, and, and it, it was, you know, slightly higher than, you know, they were averaging, you know, about probably, probably eight opinions in subsequent years, eight to nine. And they're getting it further up. We've been putting some pressure on them and, and they've, they've seen that, that, you know, they need to do a little bit more. And they, and they've been good to work with on that and, and we see some good improvements. So I don't, you know, uh, but, uh, but in terms of what this really is, is it's those minimum performance standards. And so now if they're doing, if each judge is, is authoring 10 opinions, you know, they would only be able to have, you know, uh, let me get the exact number on the Supreme Court. Um, and this is towards the end of the bill. So on the, for a judge of the Supreme Court, only 25% of the opinions could be 150 days after submission. And usually submission means after oral argument. So they've received all the papers and they had oral argument, and then only 10% can be 210 days after. Um, and then all opinions need to be complete within a year. And so that's kind of the, the way that that works. It's just that minimum standard. Okay.

Thank you, Madam Chair. Uh, quick question on lines, uh, 9 37 to 9 49. Uh, my understanding is the, these requirements are usually in the, uh, code of judicial administration. What, why are we publishing them here in statute?

Yeah, the main reason that we're publishing here in statute is so that there's a little bit of coming, coming back to the legislature before they adjust their own standards of conduct. And so, uh, as far as their, their performance levels. So we didn't impose these themselves on the courts. What we did is we said, what do you think is fair? And they adopted this, but we did want to be able to have some level of input in the future if they want to change it. Um, you know, because, uh, frankly, we were somewhat disappointed that they didn't adopt the national state court standards for over 10 years after they'd already been promulgated, even though they did that on the district courts. And their performance went from between about 2000 and, uh, 2018, they were doing about 80 opinions per year and sometimes closer to a hundred. And then, you know, and I think they were typically trying to stay between 70 and 80, uh, during that time. But then I'm gonna throw out the COVID years, we're not gonna hold that against them. But in 2023, they do, they dropped to 27 cases. And 2024 is 45, 20 25 is about 45. Um, you know, 2026, it's looking like it's gonna get into the sixties. So we're doing better. But that drop off, and a lot of that was a discretionary drop off. They decided we don't do error correction cases. That's for the Court of Appeals. We do big cases, and they weren't willing to take it even though they had capacity. And that's a philosophical thing, but that's not one that we necessarily have to fund. Like, that's their philosophical belief of their role as a Supreme Court. It's not based in our constitution. And we're looking at it and we're saying, you're asking for more judges on the Court of appeals, but you have capacity and you have every bit, every right to de decide these cases. You have the jurisdiction, you have the power to do that, please step up and do this. And they're doing that more. They're backfilling in more. But we were somewhat concerned that it got to that point to where the legislature had to put pressure on him. And so we didn't want to impose the rule, but once there was a rule, then we did want to, to adopt it. So that there's a little bit of give and take on this.

That answers my question, Madam Chair. Thank you. Yeah,

Thank you Madam Chair Committee members. My name's Michael Drexel. I'm the assistant state court administrator. I'm here to speak in opposition to a part of this bill. And it's the part that you've been discussing from line 9 37 to 9 49 that talks about putting these appellate case processing standards into statute. Yes, they have existed in court rule for, um, as long as there have been appellate case processing standards. And it's interesting, Senator Brammer, uh, and I appreciate him, we've had good conversations. He says this, putting it in statute prompts a conversation about it before the rule changes. Let me tell you how this unfolded. Uh, last fall, we had a conversation with Senator Brammer, and he indicated that he thought it was weird that it, our rule had static numbers of opinions that could be outside of compliance given the kind of the, the dip in, uh, Supreme Court opinions. And we said, okay, let's see what we can do about that. And we went back and we created a rule that is ratio based, which is what you see here, and it's gonna be published in the Code of Judicial Administration. That conversation unfolded and the rule changed to reflect the very thing that a legislator who was interested in this, uh, wanted to see a change to. That's conversation. That's change. There's, there's no conflict there, right? You have a statute in, uh, title 36, uh, chapter 35, part one. It's in the Rules review and General Oversight Committee that requires us to submit every rule change that the judicial council or the Supreme Court is considering, send it directly to you. And, and we do that. And that can prompt a conversation as well. If we were anticipating a rule change, we've never changed this rule in a way that was somehow more advantageous to us. This rule has been relatively static for a long time. There's not a need now to fix it in statute. And it creates, frankly, what I consider to be some separation of powers issues. It would be the equivalent of us creating a court rule that says, legislators shall pass bills on a certain timeframe. That's not us for us to say, that's not our thing. That's your thing. Our case processing is our thing. We administer the courts. If there are concerns, we talk about them and pivot, just as we did with Senator Brammer on this before, he's now brought it to, um, you in this bill. So I would urge you to oppose this section of the bill. Otherwise, we're very supportive of increasing the JPEG process and holding judges accountable on metrics that, that are valid and, and worthy to help voters determine how to, how to vote. Um, and that's all I'll say today.

Thank you. Thank you. I just wondered, 'cause the thing that confuses me is that SCOTUS completes their work, you know, by the time they recess at the end of June or early July. And I just wonder why it's so often, it, it, maybe it's because it's kind of the end of the line. I don't know why is it longer in state courts?

Uh, thank you, Madam Chair. Excellent question. I don't know that it is longer in state courts. People spend a long time waiting for opinions from the Supreme Court of the United States as well. Uh, what you will see, if you look at the appellate court data carefully, and we've sent significant amounts of data, a vast amount of data on appellate court timelines to actually, uh, your policy analyst up there, Mr. Adams. Um, and to Senator Brammer. You'll, you'll see that during the period of time where the, uh, Supreme Court was issuing less opinions, we were actually getting opinions out more quickly than we ever have because there was less work to do. So they weren't as overburdened. The other thing that I would point out on workload is that the, the dip that you saw in the number of, uh, of Supreme Court opinions has corrected itself to where there were 60, 58, 62, depending on how you count in 2025. All of those cases were already in the appellate court pipeline before we were looking at the dip. And the, the lack of performance. It, it's not that the nature of the cases has changed. You have to understand the appellate courts are about two years behind the regular trial courts. And so when you think about COVID happening in 21, 20 21, the, that reflects in the appellate court caseloads in 2324, as it were. Anyway, I hope that's helpful.

Thank you. Uh, I do have a question about these lines that we're talking about here. As I read this, it's requiring the justices, so they, they hear, have a case. Yes. They hear oral arguments, and then the clock starts ticking. So within, um, 150 days, 75% of opinions have to be first draft and distribute. The first draft has to be distributed to other justices.

Is that what this standard is saying? Correct. Okay.

So the, the, the actual final opinion may not, is there anything in there about a deadline on the final opinion?

There is not. Okay. So the final opinion may take another year or two to, to get ready to Go. It could, although that would be an extreme outlier, but yeah, it could. And if you're interested in exploring what that might look like in terms of some rules around that, we would certainly have that conversation with you.

All right. Thank you. Yeah,

Thank you. It's a pleasure to be here today. Okay, go ahead. Good afternoon, and thank you for the opportunity to comment. My name is Lori Cartright, and I live in Stansbury Park. As a former court employee, I find these, um, legislative committees that have to do with Juab judicial systems. Very interesting, as I had to carry out much of what, um, those decisions are that are made here by you. And I thank you for investing the time in that today. However, I am representing Mormon Women for Ethical Government, or EMIC for short. We believe that good government relies on strong institutions and the rule of law as, um, as we have seen throughout this legislative session. SB 2 33 does not arrive in isolation. It comes as part of a larger leg legislative package comprising several bills that shift how the judiciary operates and is regulated. While we generally support bills that promote transparency, we also trust legal expert experts, as we just heard from one who warn that this bill will shift judicial evaluations towards more subjective criteria. Judges should be protected from political blowback to unpopular, but correct decisions. When decisions are incorrect, we should trust the appeals process to rectify errors. And the current merit, merit based evaluation system always already catches when judges themselves are incompetent. In general, our judiciary is strong, well respected, and competent. This is due in good part to merit based projection protections and measures approved by the legislature. Let's maintain public confidence in our impartial judiciary and avoid introducing unnecessary political influences. We ask you to vote no on SB 2 33. Thank you.

Alright. All right. Thank you very much. Yeah, my name is Stewart and I'm representing myself. I'm from American Fork, and, um, I, I have some challenges with this bill. I am opposing it. And, uh, it seems like having a commission that instructs voters how to vote on a given issue or retention vote, et cetera, it seems like a conflict of interests. Um, but in particular, there's, uh, this recording of metrics for the number of times that a judge has overturned on appeal, uh, for, for abuse of discretion, 6 42, line 6 42. Uh, that seems like a very arbitrary thing to judge, and it seems that that would incentivize, um, conformity essentially. And that's in, at many points, that's the opposite of what a judge's job is. A judge is meant to, to issue good judgment, and it's not always possible for others to say in advance what that might be. And it also, there, there's no constitutional prerogative to say that they can't disagree with other judges. This is something we don't talk about enough. Um, hu v Davis in 1982 as a Supreme Court ruling that said that, uh, the lower courts are bound to follow the precedent set by higher courts because of the structure of the judiciary. Turns out that's not entirely true because a case will only escalate to a higher court on appeal. And so the lower judges are actually shielded if they're, uh, ruling more with greater clemency or fairness or greater wisdom than the precedent set by higher courts. So setting a metric that incentivizes conformity with, with higher courts, uh, actually flies in the face of constitutional provisions and protections. And I, I object to it for that reason. In addition to, um, you know, having a commission that decides whether or not somebody is, uh, is a good judge, I think the, the people need to be the judge of whether the judges are good judges. Um, and, uh, so I, with that, I would urge position to this bill. Thank you.

Thank you for indulging me. I was in the room and I left to find a plug for my desperately dead computer. Um, Maryanne Christensen, I'm Executive director of Utah Legislative Watch. I'm here in support of the bill because we don't have elections for judges. We have retention elections, which aren't the same thing. The people rely on, on the Judicial review committee, the judicial review committee. They're not in the room with the judges when all of this is, is going on. Uh, I think this bill is vital to the, that whole process of bringing better information to the voters before they have to vote to retain judges. Um, the lines starting at 8 41 that talk about the things that are gonna be on that survey. Survey, whether the judge was impartial, whether he was neutral, whether he was fair, whether he showed biases, whether he was able to communicate, whether he treated people with respect and treated them with dignity. And the people that are included in that survey, or not just the attorneys. And it, it includes the staff, it includes jurors, it, it includes the parties of the case. I think that this is a real, i I can't believe we've gone how many years of being a state and we haven't thought of doing something just so prudent. So I would appreciate your yes. Vote. Thank you. Thank you.

I'll make a motion that we, uh, favorably recommend first substitute SB 2 33 judicial performance evaluation amendments onto the full body of the house.

Yeah, I, I appreciate it. Um, to a couple of the questions. Um, you know, the Judicial Performance Commission in its genesis was, uh, in many ways created or requested by the judiciary. And it is in statute, which means that we have to administrate it through statute. Uh, there is nothing that the courts can do to change the statute with regards to judicial performance evaluation. That's why when they wanted to do a different type of survey, they had to come to the legislature to ask for some greater purview as to do that. And, and that's not uncommon. While, and I want to be clear, because a lot of people misunderstand what judicial Independence means. What it means is that a judge has Independence to make the decision in a specific case, but judicial Independence does not insulate the judicial system as a whole from other branches of government. To the contrary, title eight of our constitution has 22 sections. Of those 22, nearly all of them require legislative intervention to set up the judiciary system, to fund the judiciary system, to set the policies by which the judiciary system will act. And so there is a judicial interdependence with the legislature in our constitution that we cannot ignore. And this is one of those processes by which the retention elections and the Judicial Performance Evaluation Commission do require the input of the legislature. And so, you know, while I, I agree that a specific case, you know, needs to have Independence for the judge to make their decision, the system as a whole is not insulated from statutory changes. In fact, those are invited by our constitution. And, and what this, uh, you know, I mean, it has things like by statute in order to qualify for certification, a judge may not have more than one public, uh, sanction. Um, you know, in the current term that they're serving. Like, there's a lot of prescriptive things that by statute we've already done. And so I do take some umbrage with the idea that this is invading some new area of court or anything like that. It is not. Um, but I do think that, uh, that like, uh, I do have my own concerns with our judicial retention elections, but if we don't make the judicial performance evaluation meaningful, you know, imagine if the legislature was able to choose something to put on the ballot to determine whether we were, we're fulfilling our legislative duties appropriately, we could set some really low standards and look great, but that's not what we do. You know, and so with regards to this, and Grant Millard has a beautiful smile. I just want to point that out. Um, but that motion's in order. Um, I mean, that, that was fantastic. That was just like a beautiful moment that was like Blue Steel at the camera. Um, alright. Uh, but getting back to this, I appreciate the committee's time and, uh, and, and today, thank you.

I'll wait. Great.

Yeah, and I do have a substitute on this.

Uh, at this point I would move that we move first substitute SB 2 33. And I can explain that if you're ready.

Were a couple of, uh, changes that were requested by the courts and by JP e uh, to clean up a couple of issues. Uh, we addressed those and those, that's what the substance of the, um, of the substitute is. Specifically the changes were they wanted some of the votes to be re to remain confidential so that attorneys could serve without feeling like, uh, judges would be upset if they voted to not recommend them on the JPEG evaluation. And then there were some other requests to soften some language related to abusive discretion. The point, the point of that is more, uh, not necessarily to prescribe that it has to be done, but to ask JP e to see if they can create metrics of one kind or another to address, uh, bad judgment, uh, as exercise through decisions. And so oftentimes if there's a high overturn rate, uh, we just wanna see if there's a way to track that, that, that people would feel is fair. I'm not sure that we have the answer to how to do it, but we do want to task jpeg with evaluating that if there's a judge that's consistently getting overturned.

Alright, thank you. So what this does is, uh, you know, we've had some, uh, with this, almost all of this is dealing with the performance of our appellate courts. And there's a couple of things that are going on here. Number one, this encourages jpeg to create some docket management, uh, requirements for the courts. Meaning typically on our appellate courts, they don't really, their clock doesn't start ticking for purposes of JPEG until after the parties have submitted their briefing and then had oral argument, and then their clock starts ticking as far as whether they're going to, uh, to meet the minimum requirements for jpeg. But what this does, it says they should also be accountable for the docket from the time that a, an appeal is filed up until then. Additionally, when they do have a decision, and they need to be, and it needs to be made rather than currently what it's been is three, uh, they can have up to three opinions. Well, if the Supreme Court, for example, only does, you know, 45 opinions per year, and you have, you know, five justices currently, that means of the eight opinions, you could have three of those eight opinions assigned to each justice. That could be over 180 days late. So almost half of their docket. And the point is, you want to have a whole lot, uh, more moving through and you wanna have them delivering their opinions in a timely fashion because you've got parties waiting for this to happen. And so what this does is, instead of having it be a numerical number, it's a percentage. The, probably the more controversial part is rather than leaving this to the rulemaking authority, this does put into the JPEG code that, uh, that requirement. And part of that is just, you know, we, we don't think that any agency should be in charge of setting their own metrics. And so for purposes of judicial performance evaluation, we're happy to work with the courts, but we do want that to be in the JPEG statute as opposed to the rulemaking that the courts do. So that when, so that in terms of efficiency, uh, and the metrics for efficiency, the courts will work with the legislature to change that if, if they feel like it's not the appropriate metric, and we can evaluate that change and, you know, and have it come back instead of just having it happen through administrative rule. Um, those are, it does loosen up at the request of jpeg some of the ability for them to, on how they run their surveys. And so they can do their survey data with a little more freedom. And we're hoping to get a little bit more, more data that way. And then, um, it also modifies some of the, uh, let's see some of the studies for, uh, what JPEG can and can't study. And that would include the issue with regards to, um, attempting to judge not just are the ministerial duties of a judge being followed, but is a judge actually just making poor decisions consistently. We don't expect judges to always make the best decisions, but we do want JPEG to look at, is there a way to measure whether or not a judge's judgment is poor consistently. And so, um, you know, and if they fall into the, whether that be, you know, that should count against them if they're in the lowest 10th percentile or something like that. I don't have the solution for that. And I don't think that it would be fair to do that through statute. That's something that I would want JPEG and the judicial counsel to work together on to see if there is a way to measure that. Uh, obviously, you know, in addition to just base level competence, if they're exercising their judgment poorly, we do wanna know that, and that probably should be something to evaluate if it's possible. So, um,

It could, yeah. Yeah. If they, if they chose to adopt a metric and felt confident with it. Okay. So this doesn't force them to do that. All it does is says JPEG can explore that possibility to see if there's a metric that they would feel confident in. Okay. Thank you. So, yeah, and with that, I'm open to any questions.

Thank you, Mr. Chair. My name's Michael Drexel. I'm the assistant state court administrator. Um, I've talked to Senator Bram about this a number of times, and, uh, so I think he knows where we're coming from on this. But our primary opposition to this is actually located at line 9 37 of the first sub, where the performance standards for the appellate courts, in terms of timeliness, of circulating opinions are articulated in statute. We believe that that is a violation of separation of powers. If you look at Article eight of the Utah Constitution, actually Senator Brammer likes to, uh, point out that there are a lot of checks in there on the judiciary. None of those checks describe what's being proposed here for the language. In, in the bill, it talks about the jurisdiction of courts. It talks about nominating commissions and selection of judges. It talks about retention, but this is actually about performance. And Article eight, section 12 actually designates constitutionally, the, the, the, the judicial council would administer the judiciary. And this is very administrative. Uh, think about a future legislator who might, a legislature who might say, well, they'll circulate opinions in five days. And that then becomes the standard in statute that the judiciary would have to manage, or judges would be subject to not be being retained in their office. There's a, there's a definite Independence of the judiciary component to this. Now interestingly, the language in this Kims directly from our rule, which we are now adopting, Senator Brammer reached out to us and said, Hey, I'm a little concerned about this fixed static number and it should be a ratio. And we immediately Uintah work on creating a rule that reflects that feedback. That's the appropriate course of action. This should live in a rule not statute. And for that reason, we're opposed to this part of this bill.

Yes. Rule 3 1 0 1 of the Code of Judicial administration outlines the current rule, which says that in the Supreme Court, no more than three opinions can extend beyond a six month for circulating the opinion after it's under advisement with the judge. Senator Brammer makes a good point. If that's three opinions and you only ha are responsible for five or eight opinions in a given year, that's a significant part of your work. Changing this to a percentage then is a more nuanced way to make sure that people are getting, uh, opinions circulated in a timely manner. But those rules already exist in the Code of Judicial administration and have for years.

Maryanne Christensen, executive Director of Utah Legislative Watch. I'm here in support of the bill. In fact, this is a bill that really excited me. The legislature has had tried to put in place systems whereby judges could be measured and the voters could be informed because the whole point of this is to inform the voters about whether a judge should be retained or not. The systems that we've had in the past have all been impotent, and this is a, an opportunity for us to give the voters better information. I love the survey and I'm not here as an attorney or representing the legal establishment at all whatsoever. I'm here representing the voters and they need help when it comes to having good information on whether they should retain judges. So thank you for your positive vote. Thank you.

Um, good afternoon, uh, Mr. Chair and committee. Thank you very much for hearing me. I'm Lynndyl Smith, uh, retired law professor and attorney, uh, and one of the original members of the, um, committee for Self-represented for resources for of self-represented litigants. So I do a little bit of pro bono family law work. Um, I wanna compliment the committee for your concern about citizens' understanding, uh, about the situation of the courts and about the quality of the judges. I think I've, everybody's heard citizens who don't understand what JPEG has done and the benefit of further understanding. I'm not gonna repeat, um, Mr. Drexel's, uh, statements. I think that's a concern. The separation of powers is a concern, um, about, and I agree that, um, the standards for case handling should be in the rules, not in the statute. Um, great that you've done, um, consulting with JP E and the digital Council, that's my primary comment. Um, thinking about what Governor Cox has said, not everything needs to be a legislation. Um, pick up the phone, ask for a meeting. I think the JP e people are very, very responsive, um, to looking for ways to have valid data and get that valid data out to the public. Um, and I would just say, uh, great that there's been changes regarding, um, uh, reversals. I once had an appellate court judge come to speak to my judicial process class, um, and he thought, I guess it was very confidential and he was talking about how they make decisions in the court of appeals. He's not on the court of appeals anymore, he won't remain unidentified. And he said, oh, yes, when we get an a, a decision from Judge X, we immediately are suspicious because we know Judge X definitely is not very trustworthy to make good decisions. So I, I think the court of appeals actually may know, um, the differences from one judge to the other. And it is a difficult, uh, metric to look for, um, somebody that has good judgment with regards to surveying people that have appeared before the courts. I'm sure JPEG will be aware of the differences of people appearing before the courts. You don't want, I would suggest that shouldn't be a may rather than a shall because surveying individuals, um, I imagine will mostly end up being family law individuals or criminal defendants. Um, I would think you wouldn't favor criminal defendants over victims, but they don't happen to be individuals that are parties. But in the family law world, I'm sure Senator Weiler knows this in the second, third and fourth, the urban districts, most of those cases are heard by commissioners. Um, and in the rural course, first, fifth through eighth, those cases are heard by judges. And so you're going to get very different data from surveying the rural judge about the rural judges than about the urban judges. And you wouldn't want to collect data that is not gonna be valid. Um, so I want to compliment you for working with the, the, um, judicial council and JP e um, and urge that maybe everything doesn't need to put, be put in statute that people are working together. Thank you for your time and consideration. Thank

Hi, my name is Mary Margaret Pingry. I'm the executive director of JP e and I'm here speaking in behalf of jpeg uh, thank you chair and committee. I, our commission is not a commission that votes on legislation, but I appreciated Senator Brammer listening to us and working with us. And I am grateful for the discussions that we've had over the past few months. We've requested changes in the course of our discussions and have appreciated the openness to making adjustments for our concerns and suggestions. Thank you. Next.

Hello, uh, thank you again for giving me the opportunity to comment. My name is Lori Cartright and I am representing Mormon Women for Ethical Government or MWE for short. We believe that good government relies on strong institutions and the rule of law based on some of the bills that have been introduced during this legislative session. SB 2 33 does not arrive in isolation. It comes during a time of heightened tension between the legislature and judiciary. And as part of a larger legis legislative package comprising several bills that if passed would increase political pressures on the judiciary. While we generally support bills that promote transparency, we also trust legal experts who warn that this bill will shift judicial evaluations toward more subjective criteria. Judges should be protected from political blowback to unpopular, but correct decisions when decisions are incorrect. We should trust the appeals process to rectify errors and the current merit-based evaluation system already catches when judges themselves are incompetent. In general, though our judiciary is strong, well respected and competent, this is due in good part to merit-based proje protections and measures passed by the legislature. Let's maintain public confidence in our impartial judiciary and avoid introducing unnecessary, unnecessary political influences. We ask you to vote no on SB 2 33. Thank you.

Thank you chair. Thank you. Committee members. Um, I am here to urge you to strongly oppose Senate Bill 2 33, the Judicial Performance Evaluation Amendments. Um, at first glance, this bill may appear to be a technical adjustment to how judges are reviewed In reality, however, it presents a profound shift in the foundation of Utah's judiciary, and it's one that threatens the Independence of judges, the fairness of our courts and the public's trust in our rule of law. Under our current court system, judges are evaluated based on merit, professional standards and impartial input from legal, the legal community. These evaluations are designed to ensure accountability while protecting judges from political pressure, allowing them to make decisions based solely on law and fact. SB 2 33, however, changes that balance. It opens the door for political consideration and subjective criteria to influence evaluations of and retention decisions, rather than rely relying on objective measures of competence, fairness, and adherence to law. This is deeply concerning for many reasons. First, judicial Independence is fundamental to a fair and impartial justice system. Judges must be free to rule based on law without any fear of political retaliation or public opinion. Any system that allows evaluations to be influenced by disagreement with judicial decisions undermines the impartiality that is the cornerstone of our justice system. Second, merit-based evaluation protects both judges and the public. The current system holds judges accountable through the objective standards and fair structured assessment. SB 2 33 risks, turning these evaluations into a tool for political influence rather than a measure of professional ability. Third, public confidence in the courts is at stake. Utahans, us Utahans. We trust our judiciary because judges operate independently and are protected from undue political pressure. If evaluations are perceived to be politically motivated, that trust will erode and the legitimacy of judicial decisions will be called into question. Importantly, the Utah State Bar has publicly opposed SB 2 33 and its official statement. The bar notes that this bill increases political influence over judges by shifting evaluations towards subjective criteria that would be wielded as a tool for political retaliation. I need you to, rather Than I need you to Wrap it up. Wrap it up. Okay. Overall, two 30, SB 2 33 is merely a procedural adjustment that is a threat to the core principle of judicial Independence, and it would destabilize the force of our political evaluations for our judges based on merit. Thank

Keaton. Larson. Thank you,

Yeah. Seth Stewart. Representing myself, uh, from American Fork. Um, I would like to address one criticism earlier. Uh, the systems that we've had in the past were not all impotent. I'm going to name two of them. One of them is the trial jury. That is to say if a judge doesn't, uh, render proper verdicts or if he's mistaken in his interpretations of the law or the constitution, juries have always been authorized to undertake to hear matters both of law and of fact, whenever they suspect the judge of bias. So you have an immediate safety release valve from improper judgements in all criminal trials, which is required in our constitution. We're supposed to have a jury 100% of the time instead of 1% of the time. And, uh, but also on this puts pressure on the legislature to review laws that end up getting rejected frequently by juries. Uh, this is, this is the way that checks and balances are supposed to operate. Another check that is at your disposal as the legislature is impeachment the track. The the trick with, um, impeachment is it requires an actual allegation of wrongdoing. But if you're gonna put your eggs in that basket and say that this judge is, is, is so bad that he should be removed, you need to be able to articulate some actual wrongdoing. And that mechanism also works, but you have to actually stake on it. Let me tackle the myth of Independence. Um, we, we hear about all these independent commissions and, and, and, uh, panels and so on making these decisions. It's basically the government be government being self-congratulatory. And that's not checks and balances. That's just the government spoonfeeding you what to believe. And, uh, so let's, let's restore the proper mechanisms for pushback. The trial jury and impeachment. Those, those are your avenues. So I urge you to pose this bill. Thank you.

Yeah, I would move that we recommend favorably SB 2 33 for substitute.

Can I just say something please real quick? Uh, some is the motion. So there's a couple of things that, uh, appeared to be misstatements that I wanted to respond to for the committee.

Uh, so number one, this doesn't allow for the surveys. It allows for surveys to go to the parties that are involved, oftentimes the way that parties feel. And, and you can take that into consideration. I I can tell you that a losing attorney before a judge is just as biased as a party before a judge in many circumstances. Uh, you know, and, and attorneys that lose in front of judges oftentimes give survey results that are not as favorable to judges as they would like. Uh, the other thing that I would say is, uh, so this doesn't open it up to just a, the political retribution that people are talking about. It's let's survey the parties too. That's not a crazy idea. They sat in front of this judge for their trial or for, for a case. They should be able to talk about whether the judge was fair to them or not. Uh, in fact, that may be one of the most important people to, to survey additionally for the claims that it is, uh, some kind of, uh, invasion of the court's ability to manage the practice of law. So in our constitution, under Article eight, and I'll be specific Section nine, we are required to, to by statute establish the means by which, uh, retention elections occur. And we have established the metrics through jpeg and those were established in conjunction with the courts, you know, 20 years ago. And, and that statute that does so is 78 a 12 two. And that has not been a problem. That's been, you know, if we're going to have jpeg what we don't want to do is say, we're going to evaluate you and leave the criteria up to you. That's not what we want. So for example, if we were to do that, I would love to have on the ballot something that legislatively we can all do our own rules on what a successful minimum standard legislator is and put on the ballot how great we are. Okay? But that's not what we're doing. We're saying here are some base level standards and JP sets those standards already. They're already entitled to do so by code to set the standards. All we're doing is codifying some of them to say, these are ones that we care about. And part of the reason we care about's because it's been a problem. You know, and, and I've been banging the drum for a while and I think our courts are doing better, but it was a problem in 2023, our Supreme Court only issued 27 decisions. Now that's 5.2 decisions per justice. And I know that there's COVID and there were justices in, in transition, but that was happening. That happens all over the country. They were all dealing with COVID and justices turnover all the time. That was 5.2 decisions per justice. And that wasn't enough. And they've since gotten it up. And I, and I commend them for their improvements, but that was really grinding the, the gears of justice to a halt. And I'm not okay with leaving that for the courts to set their own rules when they didn't regulate themselves, when they could have managed the practice of law and regulated that themselves. And so we're putting their suggestion, this isn't something new that we imposed. We let them choose what the metric was and we're just putting the metric they made into code. That is what we're doing. And it's not even that they have to follow it. They can still maintain their Independence and choose not to follow it. This is only as it impacts jpeg. And so, you know, this doesn't do anything to force them to do anything, but it does say, here's the minimum standard that you already accepted. And so these are pretty small changes. You know, we've got a problem with our judicial retention elections. And the reason why I say that is because, you know, we did, you know, we, we received polling right after the last election that was, that was performed the day after the election. And two thirds of the respondents felt that they were not qualified based on the information they received to make a, to make a judgment call on whether or not to retain a judge. So that tells us that, you know, it's not quite working great and it does need reform. And we've worked with JPEG and, and accepted most of their suggestions, if not all of them. But there are a few other things that we're trying to bring a little bit of accountability into that system, particularly for the appellate courts. And the reason why we're doing that is because for jpeg they accepted all of the recommendations for our trial courts and our district courts. But they, from the National State Courts Association, I'm, I'm getting the acronym wrong, I'm sure, but then they didn't apply any of the ones to the appellate courts in 2012, which is when they were, when they were implemented. And so they declined to adopt the standards for themselves that nationally were the standard. And, and so we are doing it, we're kind of pushing them to do it now. And I think they'd be willing to do it now that we're pushing. But it's kind of a problem that we're 12 years later and now we're having to do it or 14 years later and we're having to do it for them. And so for that, I would encourage you to, to vote in favor of SB 2 33 first substitute. Alright,

Uh, it gives them more flexibility in how they do their surveys. Additionally, it also provides for some guidelines with regards to how long, um, the court of appeals in the Supreme Court can take in deciding cases once they are submitted to them. And with that, I'm open to any questions.

I'll move that. Uh, what the amendment does, just so that the body's aware, it changes the effective date for some of the new standards for judges. Um, we don't want them to be judged on rules that they haven't received yet. And so it's, uh, we felt it was fair that they be judged when this goes into effect and that's the only change. It's just that change in effective date for when these standards apply.

Senator Brammer. Thank You. So judicial performance evaluation amendments, it amends the statute related to the Judicial Performance Evaluation Commission. It gives them a little more latitude in the surveys that they can conduct. It also, uh, pushes them a little bit to measure whether the appellate courts are managing their dockets effectively. So oftentimes what's happened in the past is parties can get extensions over and over and over and over and over again. And it didn't matter at all to the judicial performance evaluation. And then it also, uh, codifies some of the standards that the courts had set for themselves, uh, in this last year, uh, specifically related to how long they can take to decide cases and how many cases can be late. So it, it sets standards for both the Court of Appeals and the, uh, Utah Supreme Court on how much time they can take for cases. And with that, I'm open to any questions.

Thank you. I would move that first. Substitute 2 33 as amended pass.

The bill is circled. Madam Reading Clerk First substitute Senate Bill 2 33, judicial Performance Evaluation Amendments by Senator Brammer. This bill was heard in judiciary with the vote of 8 2 1.

Thank you Mr. Speaker. SB 2 33 is a bill that reforms how the Judicial Performance Evaluation Commission JP e reviews and certifies judges for retention. So the bill establishes a uniform meeting, uniform meeting standards, so including a quorum requirement and voting rules. And then it adds a requirement that JPEG has to allow a judge to appear before them. So, um, if there's going to be a negative recommendation from the commission, it adds a right to be heard for the judge. So that's really important. It also updates categories for judicial performance surveys. So we'll have legal competence, impartiality communication, judicial professionalism and ethics, and the ability to manage a court calendar efficiency efficiently. So under the bill, JP E will study whether the frequency of a, of a judge being overturned on appeal. So it's not automatically included in the factors, but we'll study whether the number of, um, times that a judge is overturned on appeal should be a factor. And then it ensures commissioners can be honest and thorough in their evaluations and classifies their records, um, as private under grandma so that they can, they they aren't worried about repercussions. And for the highest courts, the bill sets specific standards for the timely distribution of opinions, ensuring that justice is not only served, but also served without unnecessary delay. So these, all these provisions together, as we've talked about for several years, as we've sought to really reform this process and make sure that it's serving the public, um, they ensure the highest quality relevant data when deciding whether to vote to retain a judge and it leads to more public confidence in our retention elections. With that Mr. Speaker, I'm open to questions.

I'll waive. Thank you.