No. 33586 (New Rule): Rule R356-101. Judicial Nominating Commissions

(New Rule)

DAR File No.: 33586
Filed: 04/29/2010 09:22:32 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This is a new rulemaking responsibility for the Commission on Criminal and Juvenile Justice (CCJJ) pursuant to H.B. 289 (2010 General Session) which takes effect on 07/01/2010. That bill transfers responsibility for staffing judicial nominating commissions from the Judiciary to the Governor's Office. Because of the change in the staffing, the rules must now be promulgated by CCJJ rather than by the judiciary. (DAR NOTE: H.B. 289 (2010) is found at Chapter 134, Laws of Utah 2010, and will be effective 07/01/2010.)

Summary of the rule or change:

The new rule provides procedures for judicial nominating commissions which will be staffed by the Governor's Office beginning 07/01/2010. These procedures are almost identical to the standards currently being used by the Judiciary.

State statutory or constitutional authorization for this rule:

• Subsection 78A-10-103(1)

Anticipated cost or savings to:

the state budget:

Because the procedures are currently in place and will remain the same, there will be no impact to the state budget. Pursuant to legislative appropriations, funds to cover the staffing of the judicial nominating commissions will be transferred from the judiciary to the Commission on Criminal and Juvenile Justice. Thus, the rules will be revenue neutral.

local governments:

All expenses for the staffing of the judicial nominating commissions are borne by the state (through the Commission on Criminal and Juvenile Justice). Local governments do not participate in the judicial nominating commission process.

small businesses:

All expenses for the staffing of the judicial nominating commissions are borne by the state (through the Commission on Criminal and Juvenile Justice). Small business owners are sometimes appointed to serve on a judicial nominating commission. However, their direct costs (travel and per diem) are paid by the Commission on Criminal and Juvenile Justice.

persons other than small businesses, businesses, or local governmental entities:

All expenses for the staffing of the judicial nominating commissions are borne by the state (through CCJJ). No other business or entity is required to expend any funds.

Compliance costs for affected persons:

The affected persons are: 1) those who serve on the judicial nominating commissions, and 2) those who are applying to be a judge. The procedures outlined in this rule do not change any compliance costs for either category of affected persons. Responsibility for the procedures is simply moving from the judiciary to the CCJJ.

Comments by the department head on the fiscal impact the rule may have on businesses:

All expenses for the staffing of the judicial nominating commissions are borne by the state (through CCJJ). The procedures are the same as they have been in the past. The change is that responsibility for the procedures is simply moving from the judiciary to CCJJ. Because the procedures will be the same and because the procedures require nothing from businesses, there will be no fiscal impact on businesses.

Ronald B. Gordon, Jr., Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Governor
Criminal and Juvenile Justice (State Commission on)
State Capitol Complex
420 N State Street
Salt Lake City, UT 84114

Direct questions regarding this rule to:

• Ronald Gordon at the above address, by phone at 801-538-1432, by FAX at 801-538-1024, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2010

This rule may become effective on:

07/01/2010

Authorized by:

Ronald Gordon, Executive Director

RULE TEXT

R356. Governor, Criminal and Juvenile Justice (State Commission on).

R356-101. Judicial Nominating Commissions.

R356-101-1. Definitions.

As used in R356-101:

(1) "Application period" means the period of time during which applications for a judicial vacancy may be submitted and begins with the posting of a notice of vacancy and ends with the closing period for submitting applications as identified in the notice of vacancy. The application period is part of the recruitment period.

(2) "CCJJ" means the staff of the Commission on Criminal and Juvenile Justice.

(3) "Commission" means the judicial nominating commission having authority over the judicial vacancy.

(4) "Commission staff" means the individuals assigned by the governor to provide staff support to the commission pursuant to Utah Code Annotated Section 78A-10-203(2) or 78A-10-303(2).

(5) "Notice of vacancy" means the announcement of a current or pending judicial vacancy by CCJJ to the public as provided in R356-101-3.

(6) "Organizational meeting" means the first meeting of a commission after the close of the recruitment period.

(7) "Recruitment period" means the period of time beginning with the posting of a notice of vacancy and ending with the completion of all tasks necessary to convene the commission. The recruitment period includes the application period.

 

R356-101-2. Recruitment Period.

(1) CCJJ shall begin the recruitment period for a judicial vacancy 235 days before the effective date of the judicial vacancy unless sufficient notice is not given, in which case CCJJ shall begin the recruitment period within 10 days of receipt of notice of the judicial vacancy by the governor.

(2) The application period for a judicial vacancy shall be a minimum of 30 days.

(3) The recruitment period for a judicial vacancy shall be a minimum of 30 days but not more than 90 days unless fewer than nine applications are received for a judicial vacancy in which case the recruitment period may be extended up to an additional 30 days.

 

R356-101-3. Notice of Vacancy.

(1) As part of the recruitment period, CCJJ shall post a notice of vacancy on its website and shall provide a notice of vacancy to:

(a) the Utah State Bar to be distributed to its members;

(b) members of the media;

(c) the Administrative Office of the Courts;

(d) the president of the Utah Senate; and

(e) other offices and associations as CCJJ determines appropriate.

(2) The notice of vacancy shall include:

(a) the jurisdiction of the court in which the vacancy occurs;

(b) the constitutional minimum requirements for judicial office;

(c) a brief description of the work of the court;

(d) the method for obtaining application forms;

(e) the application deadline; and

(f) the method for submitting oral or written comments at a meeting of the commission.

 

R356-101-4. Applications.

(1) Applications for a judicial vacancy shall include:

(a) an application form established by CCJJ which shall require applicants to provide:

(i) education history;

(ii) work history;

(iii) evidence of constitutional qualifications;

(iv) information regarding litigation as a party;

(v) attorney and judicial references as provided in R395-101-5; and

(vi) other information relevant to fitness to serve as a judge as determined by CCJJ;

(b) a waiver of the right to review the records in the nomination and appointment processes;

(c) a waiver of confidentiality of records which are the subject of investigation by the commission;

(d) an authorization for CCJJ to obtain consumer reports about the applicant; and

(e) a one paragraph summary of professional qualifications that will be made available to the public if the applicant's name is released for public comment prior to nomination.

(2) Applicants shall submit:

(a) an original and eight copies of the complete application;

(b) an original and eight copies of the applicant's resume; and

(c) a check made payable to CCJJ in an amount specified by CCJJ to cover the cost of a credit check.

(3) If the applicant has applied for another judicial position within the prior year, the applicant may satisfy the application requirements by submitting:

(a) a letter to CCJJ expressing interest in applying for the judicial vacancy and in using the previously submitted application; and

(b) a check made payable to CCJJ in an amount specified by CCJJ to cover the cost of a credit check.

(4) CCJJ shall establish application forms and make the forms available electronically and in hard copies.

(5) Applications are considered timely submitted if CCJJ receives all application materials prior to the application deadline. Applications mailed, but not received by CCJJ, prior to the application deadline are not considered timely submitted. Partial applications are not considered timely submitted.

(6) Following receipt of applications, CCJJ shall conduct investigations in the following areas for each applicant:

(a) criminal background;

(b) disciplinary actions taken by the Utah State Bar;

(c) disciplinary actions taken by the Judicial Conduct Commission; and

(d) consumer credit.

 

R356-101-5. References.

(1) Applicants who are engaged in an adversarial practice shall submit the following types of references as specified in the application:

(a) lawyers adverse to the applicant in litigation or negotiations;

(b) lawyers with whom the applicant has had a substantial professional interaction within the previous two years;

(c) judges assigned to cases in which the applicant acted as a lawyer; and

(d) judges who know the applicant.

(2) Applicants who are engaged in a non-adversarial practice and who are not judges shall submit the following types of references as specified in the application:

(a) lawyers with whom the applicant has had a substantial professional interaction within the previous two years; and

(b) judges who know the applicant.

(3) Applicants who are judges shall submit the following types of references as specified in the application:

(a) lawyers with whom the applicant has had a substantial professional interaction within the previous two years;

(b) judges who know the applicant; and

(c) lawyers who represented parties in cases over which the applicant presided as judge.

(4) CCJJ shall select which references will be contacted and requested to complete a standard reference form established by CCJJ.

 

R356-101-6. Pre-Screening of Applications.

(1) CCJJ shall review the applications upon the passing of the application deadline and remove all applications submitted by applicants who do not meet the constitutional qualifications.

(2) CCJJ shall provide to all members of the commission a list of all applicants identified as not meeting the constitutional qualifications.

 

R356-101-7. Meetings of the Commission.

(1) The commission shall convene an organizational meeting within 10 days of the end of the recruitment period.

(2) During the organizational meeting the commission shall:

(a) allow public comment concerning:

(i) the nominating process;

(ii) qualifications for judicial office;

(iii) issues facing the judiciary; and

(iv) other issues as determined appropriate by the commission; and

(b) following public comment, close the meeting to the public to:

(i) establish a timeframe for certifying a list of nominees to the governor;

(ii) discuss applicants; and

(iii) discuss conflicts of interest as provided in R356-101-9.

(3) The Commission may meet as necessary to certify the list of nominees to the governor, but shall certify the list of nominees no later than 45 days after convening the organizational meeting.

(4) The chair of the commission presides at all meetings and ensures that each commissioner has the opportunity to be a full participant in the commission process.

(5) The member of the Judicial Council appointed by the chief justice of the Utah Supreme Court pursuant to Utah Code Annotated Section 78A-10-202(6) or 78A-10-302(8) shall be a full participant in discussions of the commission, but may not vote.

(6) The commission staff shall:

(a) ensure that the commission follows the rules promulgated by CCJJ;

(b) resolve any questions regarding the rules promulgated by CCJJ;

(c) take summary minutes of commission meetings which shall include:

(i) the date, time and place of the meeting;

(ii) a list of the commission members present and a list of those absent or excused;

(iii) a list of commission staff present;

(iv) a general description of the decisions made;

(v) any declarations by commission members of a relationship, interest or bias concerning any applicant;

(vi) a record of the total tally of all votes, but not the vote of individual commission members;

(vii) written statements submitted to the commission; and

(viii) any other matter desired by the commission to be included; and

(d) perform other tasks assigned by the commission that are consistent with governing statutes and rules.

(7)(a) The commission shall determine which applicants will be invited to interview.

(b) Each commission member shall have the opportunity to question applicants during interviews and to discuss the qualifications of applicants.

(c) In questioning applicants and discussing the qualifications of applicants, the chair shall speak last and the member of the Judicial Council appointed by the chief justice of the Utah Supreme Court shall speak next to last.

(8)(a) If a commission member refuses to follow governing statutes or rules, the commission member is disqualified from the commission and the governor shall appoint a replacement.

(b) The commission staff determines whether a commission member refuses to follow governing statutes or rules.

(9)(a) Following all applicant interviews, commission members shall determine by confidential ballot which applicants will be certified to the governor as nominees.

(b) The Appellate Court Nominating Commission shall certify a list of seven names to the governor.

(c) Trial Court Nominating Commissions shall certify a list of five names to the governor.

(10)(a) Prior to certifying the list of nominees to the governor, the commission shall allow public comment on the nominees for a minimum of 10 days.

(b) Following the public comment, the commission may remove an applicant from the list of nominees if:

(i) the commission receives new information about an applicant that demonstrates the applicant is unfit to serve as a judge;

(ii) provides to the applicant being considered for removal from the list of nominees a copy of any written comments received during the public comment period about that applicant;

(iii) allows the applicant being considered for removal from the list the opportunity to respond to the information received during the public comment period; and

(iv) not less than one fewer than the total number of commission members at the meeting vote in favor of removing the applicant from the list of nominees.

(d) If the commission removes an applicant from the list of nominees the commission shall select another nominee from among the interviewed applicants and again allow public comment on the nominees for a minimum of 10 days.

 

R356-101-8. Certifying the List of Nominees.

(1) After the commission has determined which applicants to include in the list of nominees, it shall deliver the list of nominees to the governor, the president of the Senate and the Office of Legislative Research and General Counsel by letter from the chair of the commission.

(2) Commission staff shall deliver to the governor a copy of the complete application and all related documents for each nominee.

(3)(a) If a nominee withdraws before the governor has made an appointment, the commission may, at the request of the governor, nominate a replacement if it can do so before the expiration of the commission's original 45-day deadline.

(b) Unless time permits, the commission does not need to publish the name of the replacement nominee for public comment.

 

R356-101-9. Conflicts of Interest.

(1) Commission members shall disclose during the organizational meeting the existence and nature of a relationship with an applicant that may impact the commission member's ability to fairly and impartially evaluate the applicant or any other applicant.

(2)(a) A commission member who believes they have a relationship with an applicant that will impact their ability to fairly and impartially evaluate an applicant shall recuse themself from the nominating process.

(b) If a commission member discloses a relationship with an applicant and does not recuse themself from the nominating process, the commission may, by majority vote, disqualify the commission member from participation if the commission believes the relationship will impact the commission member's ability to fairly and impartially evaluate an applicant.

(c) A commission member who has recused themself or been disqualified by the commission may rejoin the nominating process if:

(i) the applicant with whom the commission member has a relationship is no longer being considered by the commission; and

(ii) the commission decides, by majority vote, to allow the commission member to participate.

(3) A commission member who is related to an applicant within the third degree shall be disqualified from the nominating process.

 

R356-101-10. Evaluation Criteria.

In addition to criteria established by the Utah Constitution and the Utah Code Annotated, commission members shall during the nomination process consider the applicants':

(1) integrity;

(2) legal knowledge and ability;

(3) professional experience;

(4) judicial temperament;

(5) work ethic;

(6) financial responsibility;

(7) public service;

(8) ability to perform the work of a judge; and

(9) impartiality.

 

R356-101-11. Confidentiality.

(1) All applications and related documents for a judicial vacancy, names of applicants and all discussions during commission meetings are confidential.

(2)(a) Except as provided in R356-101-8(2) and in this Subsection (2) or as otherwise required by law, commission members and commission staff shall not disclose the details of applications or the details of commission discussions to any person other than commission members or commission staff.

(b) Commission members may disclose the names of applicants only as necessary to make inquiries regarding the qualifications of applicants.

(3)(a) Commission members shall return all applications and related documents to commission staff at the conclusion of the nomination process.

(b) Notes taken by a commission member are not returned to commission staff.

(c) Commission staff shall retain one copy of the application materials in accordance with an approved retention schedule and shall destroy other copies of the application materials.

(4) Commission staff shall destroy all ballots used during the nomination process.

 

R356-101-12. Notice that a Judge is Removed or Intends to Resign or Retire.

The Administrative Office of the Courts shall immediately notify the governor and CCJJ if it learns that a state judge:

(1) has submitted formal notice of intent to retire;

(2) has submitted formal notice of intent to resign;

(3) has been removed from office: or

(4) has otherwise vacated the judicial office.

 

KEY: judicial nominating commissions, judges

Date of Enactment or Last Substantive Amendment: 2010

Authorizing, and Implemented or Interpreted Law: 78A-10-103(1)

 

---