Judicial Retention: Utah’s Forgotten Elections

Judicial Retention: Utah's Forgotten Elections
The Utah Constitution requires judges, who are originally appointed, to stand for regular retention elections.

Folks, for those of you (like me) who haven’t yet voted, either because you want to stick it out to the bitter end or you just like going to the polls on election day, let me raise an important issue that gets almost no publicity — judicial retention.

In Utah, our judges are appointed to their positions.  But to remain in their positions, they must be re-elected in periodic, unopposed retention elections.

It’s in the Utah Constitution:

Article VIII, Section 9.   [Judicial retention elections.]
Each appointee to a court of record shall be subject to an unopposed retention election at the first general election held more than three years after appointment. Following initial voter approval, each Supreme Court justice every tenth year, and each judge of other courts of record every sixth year, shall be subject to an unopposed retention election at the corresponding general election. Judicial retention elections shall be held on a nonpartisan ballot in a manner provided by statute. If geographic divisions are provided for any court of record, the judges of those courts shall stand for retention election only in the geographic division to which they are selected.

If you’ve voted before, you’ve probably seen the questions on the ballot: “Should Judge X be retained?”  At which point you probably thought to yourself something like, “Crap, I’ve never even heard of Judge X and there’s not even a party affiliation for me to go by,” and then either: “Throw them all out,” or, “I’ll just vote yes.”

I offer it as my personal opinion that retention elections are a bad idea.  I much prefer the federal model of life tenure subject to impeachment.  By and large the judges that we have in our state do a fine job.  There are some that are exceptional.  But regardless of whether a judge is exceptional, or less than so, it is not helpful to a judge’s work to be concerned about retention when making rulings.  Judges have it hard enough, and no judge should be thrown out just for getting a ruling wrong, or, heaven forbid, getting an unpopular ruling right.  Remember, every decision that a judge makes alienates someone, or some large, influential public interest group.  Often, decisions alienate everyone involved.  And retention elections invite punishment for a judge just doing the job we sent him or her to do.  A judge who abuses his or her office is more likely to be punished via impeachment than through a retention election.  The retention mechanism is unnecessary and invites problems.

To those who would say “throw them all out, every time,” I really don’t know what to say to you.  If you believe that the best thing for Utah’s judicial system is the regular destruction of institutional memory and indiscriminate punishment for public service . . . well, we probably just don’t have much to say to each other.

Commentary and unsolicited opinion aside, we have these elections in Utah and their continuation is mandated by our Constitution.  So, we should at least try to do this all intelligently, right?

In an effort to try and provide voters some basis for casting their retention votes, Utah has created a Judicial Performance Evaluation Commission, which “rates” judges on the basis of interview questionnaires filled out by attorneys and litigants.  You can access the information at http://judges.utah.gov.

Take some time to read through it before heading out to vote.  Try to gather information on judges however you can, remembering to consider the source.  And, in my opinion, if you feel like you still lack any basis on which to decide, vote to retain or just don’t vote on the retention question at all.

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