The Matheson Courthouse in Salt Lake City is pictured on Wednesday, January 3, 2024. (Photo by Spenser Heaps for Utah News Dispatch)
There was a time when the Utah Legislature prohibited what it called “electioneering” within 150 feet of a polling place. Section 20A-3a-501 Utah Code Annotated defines “electioneering” as “any oral, printed, or written attempt to persuade persons to refrain from voting or to vote for or vote against any candidate or issue.” This was good policy, keeping advocacy away from the place where, traditionally, voters ultimately placed an “X” in a box behind a closed curtain. (As an aside, I miss those days.)
And yet now, the Legislature is giving serious consideration to allowing electioneering to take place not 150 feet away, and not even 15 feet away. HB512, if passed, will allow electioneering less than an inch away from that box. Why? Because in the guise of a legitimate goal of educating voters, a Joint Legislative Committee on Judicial Performance (the “Committee”) to be formed under HB512 will be permitted to place, on the ballot itself, its own judgment and recommendation about which judges should, and should not be retained.
These judges are men and women who have already been vetted by a nominating committee, the governor, and the Senate. The only question remaining, if this becomes law, is how long before a legislative committee is fanned to pass judgment on our governor, our attorney general, and every other state officer requiring votes to be elected or to remain in office? If the Committee can apply subjective, unarticulated, and unaccountable standards and metrics to sitting judges, then why not to other elected officials, with a judgment and recommendation being foisted on voters right there in the ballot. If the Legislature does not see a clear line between its domain and the judiciary’s, then why should a line exist between it and the executive branch?
I have been a trial lawyer for 40 years now. I, and my clients, have seen judges on occasion issue decisions and rulings with which we vehemently disagree. The law provides recourse when that happens, in the form of asking for reconsideration or appealing to a higher court. And sometimes even then, we feel horrible mistakes are made. Have I voted “yes” for every judge appearing on my ballots over the years? No. It is not a perfect system. But a wise retired judge recently observed that 50% of the people who appeared in front of him were unhappy with his rulings. That is an unavoidable metric. The same holds true of juries. But in all of those cases, I have been confident in assuring my clients that the judges are simply trying to apply facts to law dispassionately, without regard for public opinion or pressure that by making a particular decision their job may be at risk.
HB512, if enacted, would change that. No longer would I be able to assure my clients that the law and the facts are the only legitimate considerations for our judges. A third element, namely “what will the Committee think of this” will subtly or overtly lie behind a judge’s thinking, throwing my client’s fate outside of the rule of law and into a political arena. Yes, political. Because the Committee is going to be made up of people chosen by politicians, with as much as a 4-1 ratio of political persuasions allowing the Legislature to barely call the Committee “bipartisan.”
I get that some recent legislative decisions have had a rough go in front of our courts. Welcome to the club. But the remedy for that is to do what Legislatures are supposed to do … pass laws in a manner consistent with statute and our Utah Constitution. Just as my clients need to have honored their contractual and common law duties in order to expect a favorable shake in court, the Legislature, too, should follow its own play book or rewrite that playbook in a manner consistent with law. The Legislature has a tremendous legal presumption in its favor. It shouldn’t be that hard.
Again, educating voters about people appearing on ballots is a worthy goal. Let’s have more of that. But the idea of placing the imprimatur of a recommendation, purporting to be objective, thorough, or even fair right next to the box I will be checking or not at the next election, is an invasion that is against current law. It’s putting a thumb on the scale of justice.