Views from the Bench, 1021 UTBJ, Vol. 34, No. 5. 12

Authorby The Honorable David N. Mortensen
PositionVol. 34 5 Pg. 12

Views from the Bench

Vol. 34 No. 5 Pg. 12

Utah Bar Journal

October, 2021

September, 2021

The Judicial Conduct Commission: Not So Mysterious

by The Honorable David N. Mortensen

While serving as the presiding judge in the Fourth District Court, one of my duties consisted of acting as the reviewing judge on motions to disqualify other district court judges. Not infrequently, a party, sometimes acting pro se, but often represented by counsel, would move to disqualify a judge based upon the fact that they had recently filed a complaint against that judge with the Utah Judicial Conduct Commission - the JCC. Not only would these parties be quickly disappointed to find out that the filing of a complaint against a judge does not automatically result in disqualification, but they would also learn that the motion to disqualify was the first time the judge had even heard that a complaint had been filed. See Utah State Bar Ethics Advisory Committee, Informal Op. 05-3 ("A judge is not required to enter disqualification based solely on the fact that a judicial conduct commission complaint has been filed [against the judge]."); see also Utah State Bar Ethics Advisory Committee, Informal Op. 97-8 (explaining that a judge need not enter disqualification solely because a party sued the judge in the judge's judicial capacity). That is just one of the nuances of the processes of the JCC. And while the JCC may seem mysterious, a lot of information is easily available. But to save everyone the hassle of looking it up, hopefully the following will help clear up any confusion that might exist, or maybe the following will be a revelation about a commission you have never heard of.

Currently I have the honor of serving with a collection of good and conscientious commissioners who take their constitutional oath of office seriously[1] We meet monthly and conduct a session open to the public, as well as a closed session where we discuss and adjudicate claims of alleged judicial misconduct.

Complaints to the JCC can be quite serious and, if egregious enough, can result in a recommendation that a judge be suspended without pay or removed from office. The JCC may take the following actions in connection with a complaint: dismissal, dismissal with warning, reprimand, censure, suspension, removal from office, and involuntary retirement. Understanding the history, structure, and processes of the JCC can help counsel and their clients understand how complaints are processed and what expectations they can have when complaints are filed.

The Creation and Structure of the Utah Judicial Conduct Commission

In 1984, the Utah Legislature rewrote, and the voters approved, a new Article VIII of the Utah Constitution.[2] The new Article VIII of the Utah Constitution, of course, expressly vests the judicial power in the Utah Supreme Court and a general jurisdiction court known as the district court, as well as the other courts the legislature in its wisdom may establish.[3] The new Article VIII also ushered in the Utah Judicial Council, introduced nominating commissions into the judicial selection process, introduced judicial retention elections, and created a new entity - the JCC. See Utah Const, art. VIII, § 13; Utah Code Ann. §§ 78A-11-101 to -113.

The composition of the JCC is quite unique. The JCC enabling statute, see Utah Code Ann. §§ 78A-11-101 to -113, sets forth that the commission will consist of eleven members: two members of the Utah House of Representatives, each from a different political party, appointed by the speaker of the House; two members of the Utah State Senate, each from a different political party, appointed by the president of the Senate; two members of the Utah State Bar appointed by a majority of the Utah Supreme Court; three persons who are not members of the Utah State Bar, no more than two from the same political party, appointed by the governor and confirmed by the Senate; and two judges that must serve in different districts, serve on different levels of courts, and cannot be members of the Utah Supreme Court. Id. § 78A-11-103(1).

There appear to be some unique aspects to Utah's JCC. As far as my research has indicated, no other state's JCC has legislators as members. Often, in other states, a commission will only have a token member from the general public. And while...

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