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For Judge Hilder, an exit from controversy and on to new legal horizons

Published August 21, 2011 9:03 pm

This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The boxes in his new office on Salt Lake City's east bench have not all been unpacked, but already his phone is ringing.

Robert K. Hilder has seen the hate mail; he knows he is reviled by some.

But newly retired from his post as the 3rd District's presiding judge, Hilder is settling into his second foray as a practicing attorney and the phone calls, demands for his mediation and arbitration services, come as no surprise to the many who believe he was among the state's finest jurists — a keen legal mind, a reasoned voice and a consummate professional throughout a career punctuated by controversy both in and out of the courtroom.

Lightning-rod cases • As he enters retirement, Hilder says he hopes "no one or two or three cases" will define his time as a judge. But throughout his career, Hilder has undoubtedly found himself at the forefront of some of the state's highest-profile cases, at least in terms of public perception.

"Not every judge gets the lightning-rod cases," says former Utah State Bar President Nate Alder, "and he's had several."

"This is a wonderful job," Hilder says of being a judge. "I cannot believe I ever got it. I can't believe my life took me to this place. … It's been an absolute joy, and it's been very difficult in some ways."

There was a divorce and custody battle that turned deadly in 2003, after Hilder, at the advice of a therapist, ordered a woman to stay in Utah or lose primary custody of her children. In August 2003, police shot and killed the woman after a chase and a fight with her ex-husband.

And there was the death of Paul Wayment, who committed suicide the night Hilder sentenced him to 30 days in jail for the negligent homicide of the man's son.

In 2000, Wayment had left his sleeping 2-year-old son, Gage, in a truck while scouting for deer in the mountains above Coalville. Gage awoke, managed to open the truck's door and wandered away. He was found dead in the snow by searchers.

At sentencing, neither defense attorneys nor prosecutors said Wayment should serve jail time, that he had suffered enough.

"The problem with those statements is none of these people have to make the decision," Hilder said in court. "The decision comes here."

Hilder said at the time he thought jail time would be a penance that would help Wayment heal. He also wanted Wayment to undergo a mental health evaluation.

Wayment, who was supposed to report to the jail the next day, killed himself near the spot where his son was found.

Hilder says he was able to live with the decisions he made as a judge. What, in part, soured him on the job and caused him to walk away from the bench last month was the absence of any opportunity for advancement.

His bid for a seat on the Utah Court of Appeals was foiled by what he views as a "dishonest" Senate confirmation process, that was exacerbated by his ruling in a controversial guns-on-campus case.

"I don't have regrets about the outcome [of the failed appellate court bid] in the sense that whether I'm an appellate judge or not doesn't have a whole lot to do with the outcome of my life or the universe," Hilder says. "But the process was quite dishonest. It was quite motivated by a set of considerations by a number of different people."

'I knew I was in trouble' • When Hilder became a trial judge in 1995, he was among a group of about 10 new judges who were welcomed by the Senate.

"We were addressed as 'judge' from the moment we walked in," he recalls. "Historically, [Senate confirmation] was a rubber stamp."

But things couldn't have felt more different in November 2008, when Hilder came before the Utah Senate's Judicial Confirmation Committee, having been nominated for a spot on the state's Court of Appeals.

"To put it boldly, some of the senators, the leadership, simply disregarded their oath," Hilder says. "They proceeded on nakedly political and personal grounds, but each one had a different agenda."

Not only were the tragic outcomes of some cases the topics of questioning, so was his private life.

They asked about his divorce and, behind closed doors, Hilder says, at least one senator spoke of his lapsed church activity.

Hilder served a mission for The Church of Jesus Christ of Latter-day Saints and went on to become a bishop. Eventually, however, he stopped attending church.

"They really couldn't stand that betrayal," he says of some in the Senate.

Sen. Lyle Hillyard, R-Logan, was one of the few Republicans who voted for Hilder, but says now he "wasn't overly enthused" about him.

"He made this speech to me about how he'd joined the Mormon Church ... and then I found out he wasn't active anymore," Hillyard says. "I felt he was trying to sway me on the church issue when in fact the church issue wasn't really that important to him. To me, it was disingenuous."

Despite the fact that Hilder is regarded by lawyers and fellow judges as one of the state's finest judges, the committee only narrowly passed him out. Later, the full Senate voted Hilder down with 16 nays to 12 yeas.

Senate President Michael Waddoups recently defended Hilder's confirmation process.

"Our process is a good process," Waddoups said. "I thought it went well. I've had people tell me both ways. That they wished he would have been confirmed. I've been told we did the right thing. I don't know that rehashing it makes it any better. It just makes it hard for a guy to go into retirement with a good taste in his mouth, and I don't want to do that."

But Hilder knew his hopes for career progress were shaky years before he became a Court of Appeals candidate.

"I knew I was in trouble from the first day I saw the University of Utah guns-on-campus case," he says. "I said, 'Oh my gosh. There goes any advancement in the judiciary.' Because whatever I did, I thought it would hurt me. It just took five years before it came to fruition."

In 2003, Hilder ruled in favor of the University of Utah's right to ban its students, faculty and staff from carrying guns on campus.

"That may have been the one that stopped his confirmation," says former state Sen. Mike Dmitrich. "Other than that, I think the rest was window dressing to make it look like there were other reasons."

Hilder's nomination was met with heavy opposition from the pro-gun lobby.

"The Second Amendment groups were an integral part of making sure that judge was not on the appellate court," says Crystal Perry.

A University of Utah student at the time of Hilder's confirmation hearings, Perry now owns a firearm training company called Doll Tactical and is a board member for the Utah Shooting Sports Council.

"I think the Legislature itself felt that the judge was trying to legislate from the bench," she said. "That was not his job."

Hilder's ruling, however, did not touch any Second Amendment issues. Instead, it focused on the university's right to maintain contracts with its students and employees.

"That's part of the tragedy of what's happening in the judiciary," Hilder says. "Judges want to focus on doing the right thing and having decisional independence to do what is right, no matter who the party or what the external influence. It's very hard for any of us to sit there and not think about that. The fact that we are thinking about that is destructive overall."

Human consequences • After 11 years as an attorney, Hilder was appointed to the 3rd District Court —and he welcomed the change.

"I'm somewhat less of a zealous advocate than I am a problem solver," he says.

But the grind of being a trial court judge wore on Hilder some and he said he worried he would be "worn out" if he continued into his 70s.

"My job is high pressure," he says. "It's decision after decision. I do my writing nights and weekends because it's too busy during the day. I never saw myself as a scholar of the law, candidly, but I thought the experience from the trial court could be taken to the [appellate court]. I felt I had something to offer. I wanted to take the time to think carefully about problems, work with the assistance of law clerks and really produce a good legal product."

Now he is opening a law practice with his wife, Jan McCosh. He wants to do mediation and arbitration because they're things that suit his strengths, he says.

Hilder said he has seen how litigation can destroy families and rip businesses apart, adding, "and it doesn't always need to happen."

He is proud of the things he's done as the 3rd District's presiding judge. He regrets the pain some have felt, but he doesn't regret the decisions.

"When it comes down to it, ultimately a judge's job is to decide," he says. "We have to decide among the choices of the case before us."

In the statement he wrote after Wayment's death, Hilder said: "It is a judge's worst nightmare that his or her actions may lead to unforeseen and tragic human consequences. … For the rest of my career I will remember Paul Wayment and try to never lose sight of the human consequences as I discharge my responsibilities."

"I wondered if that would be true," Hilder says years later, "and it was."

afalk@sltrib.comTwitter: @aaronfalk