Article An Interview With Justice Durham, 1217 UTBJ, Vol. 30, No. 6. 32

Author:Evelyn Furse, Judge.

Article An Interview with Justice Durham

Vol. 30 No. 6 Pg. 32

Utah Bar Journal

December, 2017

November, 2017

Evelyn Furse, Judge.

On a beautiful Friday afternoon in August, I had the chance to sit with Justice Durham and ask her about her accomplishments. As any former clerk can attest, the opportunity to pick “your” judge’s brain and get her to talk about her path is akin to the pleasure one gets from selecting a fresh chocolate from among a new box of hand-dipped chocolates. May you find as much enjoyment in the conversation as I did.

JUDGE FURSE: In the last four decades, you have touched many people, and few of us know the breadth of your impact. Let’s talk about the legacy you leave us in a number of different fields. Considering first the field of judicial governance, how do you see your contribution?

JUSTICE DURHAM: With respect to the judiciary as an institution, one of the things I have learned is that you cannot address issues of fairness and justice in the court system unless you pay attention to the way courts are governed. Courts as institutions have to be organized, supported, and managed in such a fashion that judges and their support staff can actually provide what we think of as justice. That’s something I didn’t know when I came on the bench.

I thought in more “micro” terms – an individual becomes a judge, gets assigned to a courtroom and a caseload, then hears cases and tries to decide them fairly. The lawyers try to represent people fairly: that was my idea of the justice system. Not until I became engaged with issues about management and governance, which started when I was a trial judge, did I realize that the most minimal operational needs of the trial courts (e.g., collecting data and learning from it, assessing need and performance, figuring out emerging issues, planning for change) were completely dependent on political and funding and management issues.

That’s what drew me into court management and governance issues – trying to think about how we as trial judges could do our business better, and thereby serve the public better. Later, when I went on the Supreme Court, I started to see the courts from a “whole system” perspective based on what I had learned in the trial courts.

I was the beneficiary of an accident of timing, but I came on the Supreme Court just at the time the court was starting to engage with governance issues. The main motivation for the Supreme Court was that we needed an intermediate court of appeals, and that required a constitutional revision. When we had to revise the judicial article of the Utah Constitution, it really was an historical moment. The right people (from all three branches of government and from the public) and the right ideas came together. The changes made thoughtfully prepared the way for the creation of a strong, independent, self-governing judicial branch. Prior to the constitutional revisions in the mid-eighties, Utah did not actually have a cohesive judicial branch. We had fragmented court systems, each with their own funding lines, each with their own priorities and goals. We had no capacity for planning, no capacity for doing centralized budgeting. We did not really have a constitutional base for developing a fully independent court system until constitutional revisions in the mid-eighties.

For me, it was an amazing experience to watch and participate in that effort. I wasn’t on the front lines of the constitutional revision (Chief Justice Gordon Hall and Justice Dallin Oaks invested enormous effort in getting it done), but I was on the implementation task force that the governor set up to take what the constitution now permitted and to incorporate the new structure in statute.

JUDGE EVELYN FURSE is a Federal Magistrate Judge in the United States District Court for the District of Utah and clerked for Justice Christine Durham in 1997.

So I watched the creation and the building of our Judicial Council and our system of governance, which has given us the capacity to plan, to budget, to do court reform, [and] to set priorities in ways that really accounted for need rather than being driven by politics.

I feel extremely grateful for that opportunity and experience. Of course, it was capped for me later on with the opportunity to spend ten years as the CEO of the system – Chair of the Judicial Council – during its maturing and the coming to fruition of so many of the plans that had been laid earlier. I think Utah’s judicial system and Utah’s judiciary is one of the healthiest and...

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