President's Message

• Year: 2025
• Citation: Vol. 38 No. 1 Pg. 9
• Pages: 9
• Date: 01 January 2025

President's MessageNo. Vol. 38 No. 1 Pg. 9Utah Bar JournalJanuary, 2025

Preserving Utah's Judicial Independence and Accountability: A System Worth Protecting

by Cara Tangaro

In 1984, Utah voters approved a constitutional amendment that repealed and reenacted Article VIII, the judicial article, of the Utah Constitution. The amendment established a judicial selection process that includes the governor appointing judges from a list of applicants certified by judicial nominating commissions. Those appointed by the governor are subject to review and confirmation by the senate. If confirmed, judges are required to stand for uncontested retention elections. The amendment retains language that had previously existed in the Utah Constitution prohibiting selection of judges based on "any partisan political consideration." Utah Const, art. VIII, § 8(4).

The revised Article VIII was a carefully crafted compromise that followed years of study. It struck an important balance between merit selection, judicial independence, and accountability. It created a judicial selection system that has served the residents of Utah and the legal community in Utah well for forty years. Utah's judicial selection and retention system is one that is worth fighting to protect and to strengthen, even as some policymakers consider how to respond to recent decisions from the Utah Supreme Court.

Merit Selection

The wisdom of Utah's judicial appointment and retention system begins with a merit selection system, summarized by one sentence in the Utah Constitution: "Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration." Id. That mandate applies to all aspects of judicial selection.

The Utah Constitution directs the governor to fill judicial vacancies in courts of record "by appointment from a list of at least three nominees certified to the governor by the Judicial Nominating Commission having authority over the vacancy." Id. art. VIII, § 8(1). State statute requires exactly five nominees for vacancies in juvenile court and district court and exactly seven nominees for vacancies in business and chancery court, the court of appeals, and the supreme court. Utah Code Ann. § 78A-10a-203(3)(a).

Judicial nominating commissions are established in statute, one in each district for both district court and juvenile court vacancies, one for business and chancery court vacancies, and one for vacancies in both the Utah Supreme Court and Utah Court of Appeals. Id. §§ 78A-10a-302, -402, -502. The governor appoints seven members to each judicial nominating commission. "In determining whether to appoint an individual to serve as a commissioner, the governor shall consider whether the individual's appointment would ensure that the commission selects applicants without any regard to partisan political consideration." Id. §§ 78A-10a-303(4), -403(4), 503(4). The Utah Legislature established a similar merit appointment process for justice court judges. Id. § 78A-7-202.

Commissioners review applications submitted by interested attorneys, interview selected applicants, and ultimately certify a list of the most qualified applicants to the governor, "hi determining which of the applicants are the most qualified, a commission shall determine by a majority vote of the commissioners present which of the applicants best possess the ability, temperament, training, and experience that qualifies an applicant for the office." Id. § 78A-10a-203(2). Administrative rule directs commissioners to consider evaluation criteria including integrity, legal knowledge and ability, professional experience, judicial temperament, work ethic, financial responsibility, public service, ability to perform the work of a judge, and impartiality. Utah Admin. Code R356-2-10(1).

Though judicial nominating commissions are an important part of the merit selection system, they are not beyond improvement. The governor's discretion in appointing commissioners is nearly...