Last week, I wrote about not retaining Judge Christine Johnson in Utah’s Fourth Judicial District Court. Since then, I have seen multiple articles promoting the Judicial Performance Evaluation Commission as the (only) source to turn to when evaluating judges.
The problem with that is that in the entire time JPEC has been evaluating judges, there has only been one judge that they recommended not be retained — and she was retained. Every other judge received a recommendation to be retained and almost all have had unanimous support.
The president of the Utah Bar complained this week that we shouldn’t judge judges based on a few decisions, but I would argue that’s exactly what we should do. And isn’t that exactly what judges do? Judge people on bad decisions? Even more telling is that judges can take into account previous bad decisions when defendants show up in their courtroom, but we, the members of the public, are not supposed to look for patterns of bad decisions but instead, trust the 13 members of JPEC and the Utah Bar Association.
JPEC came about because former Sen. Chris Buttars felt judges were unaccountable once confirmed. They were easily retained every six years (every 10 for Supreme Court judges) with an average of 80 percent of the vote. He and former Rep. Curt Oda ran a bill in 2008 creating the commission, hoping that there would be increased accountability, less rubber-stamping and more voter awareness.
It does not appear that anything has changed. A news article in 2012, the first year JPEC issued recommendations, said that there was basically no difference in outcomes. Judges were still retained with 80 percent of the vote and relatively few voters visited the JPEC website. Even if they had visited the website, they would have seen that every judge received a recommendation to retain.
Among the criteria that JPEC evaluates is a judge’s outward demeanor in the courtroom, whether or not they have a “well-run” courtroom and if they have good time-management skills. They do not evaluate the correctness of decisions, look for patterns of leniency or undue harshness or many other measures that would truly lead to an informed decision on retention.
So what is a member of the public to do? Trust a commission that recommends to retain virtually 100 percent of the time? That’s one possibility. Another is to track all court decisions, but that is time-intensive and it’s not free. The court decisions are behind a paywall.
Another is to turn to the media and search for stories about particular judges, as in the case of Judge Johnson. You can also find stories about Judge Thomas Low, who told a rapist in his courtroom that he was an “extraordinary, good man” and about Judge Su Chon, whose time on the bench has been controversial.
In a piece written by attorney and then-Salt Lake Tribune columnist Michelle Quist, we learn that only two judges have lost their retentions in Utah — and both before JPEC was in place. Judge David Young lost his retention bid in 2002 and Judge Leslie Lewis in 2006. Young had a string of controversial decisions and eventually received a reprimand and Lewis went on an anti-hunting tirade that ended up on this brand-new thing called YouTube. Members of the public responded to both judges by showing them the door. And it’s up to members of the public to look more places than just a 13-member commission who always (with one exception) votes to recommend retention.
Low, mentioned above, received a 100 percent “vote-to-retain” recommendation in 2014. He is not up for review again until the 2020 cycle. Voters forget news stories — and who can blame us? There are so many! Absent some sort of organized effort — like the formation of a PAC and ongoing media stories — judges — both good and bad — will continue to stay on the bench, year after year.
Holly Richardson, a Salt Lake Tribune contributor, believes transparency is the best disinfectant and would like to see all judges decisions that are ruled public, be made public and readily accessible.