and legislative membership in 1985; 2) that the Supreme Court's ruling in In Re Young eliminates legislative appointment and legislative membership from the Judicial Conduct Commission and 3) that the decision may also challenge the constitutionality of other boards and commissions with members from more than one branch of state government. Finally, Mr. Howe reviewed the remaining Legislative authority to discipline and remove judges from office -- impeachment -- which, it was concluded, is too cumbersome to use in a normal forty-five day General Session.

    Rep. Hickman questioned how the House begins an impeachment process.

    Mr. Howe responded that the constitution is silent on how the House begins the impeachment process. On one hand, the constitution provides the House with the sole power of impeachment while, on the other hand, it neither permits nor prevents the House from calling itself into session. The constitution, he said, is ambiguous as to how an impeachment would begin outside of an annual general session or a special session. The constitution is also unclear on how much time the Legislature has to conclude an impeachment.
                
    Ms. M. Gay Taylor, General Counsel, Legislative Research and General Counsel, discussed a Texas case where the House of Representatives began an impeachment against the Governor. After the House convened itself into session, the Governor challenged the House's authority on the basis that its actions were not provided for in the constitution. She said this was a perfect opportunity to determine if the Legislature has authority to call itself into session but the case was subsequently made moot on that point when the Governor called the House into a special session for other reasons and the impeachment proceeded under authority of the special session.

    Rep. Hickman said the constitution should be amended to clearly provide a procedure for the House to begin an impeachment.

    Rep. Stephens sought clarification on how the disciplinary procedures of a lawyer and a judge differ.
    
    Mr. Francis M. Wikstrom, Chairman, Judicial Conduct Commission, explained that when a complaint is received against an attorney, it is investigated, then it goes before three screening panels that are appointed by the bar commission. If the screening panel votes that the complaint should go formal, it then becomes a formal complaint which is then processed and heard by the district court. The judge then hears evidence, makes a determination, imposes a sanction if appropriate, and then either party may appeal to the Supreme Court for final determination.

    Mr. Wikstrom then explained that when a complaint is received against a judge, the complaint goes to the Judicial Conduct Commission where it is investigated and then it is

presented to the Judicial Conduct Commission if the complaint has merit. Many times the commission receives complaints that are frivolous or involve appealable issues. Such complaints are dismissed, he said. For meritorious complaints, the judge receives a notification and is requested, but not required, to respond to the complaint in writing. The Judicial Conduct Commission then determines whether or not to initiate formal proceedings. If formal proceedings are initiated then the judge is notified of the hearing date. The hearing is held confidential. The Judicial Conduct Commission then makes a determination on the findings of fact, conclusions of law, and recommends whether a reprimand or other sanction will be issued, and then transmits the entire file to the Supreme Court.

    Rep. Stephens questioned whether this process is still held in confidence.

    Mr. Wikstrom responded that until the Supreme Court reviews the matter and determines whether to implement the order of the Judicial Conduct Commission, the entire file is secret under authority of Article VIII, Section 13 which provides that the Judicial Conduct Commission shall ". . . investigate and conduct confidential hearings regarding complaints against any justice or judge."

    Rep. Stephens questioned on what grounds one would justify two systems of discipline for attorneys and judges. The one against judges is to be held in secret, and the other, which could investigate similar complaints, perhaps even identical conduct, is open to the public. Why is there a different standard for judges than for attorneys in disciplinary proceedings, he asked. If anything, one would think judges would be held to a higher standard rather than a secret one, he said.

    Mr. Wikstrom explained that the constitution governs the Judicial Conduct Commission and its proceeding. The procedure for discipline of attorneys is a matter for the Utah Supreme Court.

     Mr. Richard Schwermer, Administrative Office of the Courts, explained that he did not think the process was different because both judges and attorneys go through an investigative process which is private for both, once the investigative aspect is concluded, whether by the bar or the Judicial Conduct Commission, the matter goes before a court. For attorneys that begins at the district court and for judges it begins at the Supreme Court, then the matter becomes public.

    Sen. Buhler asked whether the Supreme Court could decide to take no action on a complaint that the Judicial Conduct Commission had recommended a public reprimand, and if so, would the record be sealed or public. Mr. Wikstrom responded that the Supreme Court may implement, reject, or amend the commission's recommendation.

Sen. Buhler said that the role of the Judicial Conduct Commission seems to be strictly advisory. Mr. Wikstrom explained that it is solely within the Supreme Court's discretion whether or not to discipline a judge.

    Sen. Buhler asked if it was accurate that the Supreme Court is not bound by the findings of the Judicial Conduct Commission regardless of its membership, who appoints the membership, or the decisions it makes or fails to make. Mr. Wikstrom responded that the Supreme Court has the power to completely disregard any decision of the Judicial Conduct Commission but in practice the court does not disregard the recommendations of the Judicial Conduct Commission.

    Rep. Cox said that the Judicial Conduct Commission is in fact advisory to the Supreme Court but he noted that the Supreme Court cannot bring complaints against judges. Someone else must do that, he said.

    Sen. Taylor questioned the type of actions that the commission can take against a judge and whether those issues are brought out in a retention election.

    Mr. Steve Stewart, Executive Director, Judicial Conduct Commission, said it is his understanding that the Administrative Office of the Court reports whether a judge has received certain types of reprimands and it is published in the Voter Information Pamphlet.

    Mr. Schwermer said that if a judge has two or more private reprimands within the past two years, then that information is published in the Voter Information Pamphlet. Additionally, if a judge has any public reprimands within the past two years, that is also reported.

    Sen. Taylor said that if only reprimands from the past two years are recorded for retention election purposes, then a justice of the Supreme Court, for example, has eight years in which no public accounting will take place for retention election purposes. Mr. Schwermer agreed to look into this issue and report back to the committee.

    Mr. Howe said this goes right to the heart of the debates of the 1985 amendment. Justice Oaks, he said, acknowledged that the retention election system will not work without reliable, accurate information, presumably supplied by the State Bar Association. Mr. Howe reported that Justice Oaks said that he would bring any influence he had to bear on supplying detailed, reliable information concerning judges' records. The question for the Legislature is whether the current amount of information is adequate for the public to make an informed decision concerning whether a judge should be retained.
                        
    Mr. Wikstrom said the unfortunate consequence of In Re Young is that the Judicial Conduct Commission has lost four dedicated members and that the process also seems to be losing the confidence of the public and the Legislature.

    Chair Tyler reminded the committee of an October 11,1998 , editorial in the Salt Lake Tribune, written by Mr. Francis M. Wikstrom which has been mailed to members of the committee. He complimented Mr. Wikstrom on the editorial and encouraged members of the committee to review the editorial.

    Rep. Arent said there are a number of issues on the table: how to get the Judicial Conduct Commission functioning again and what to do about the complicated and cumbersome impeachment process and the mixed boards problem. She suggested that these issues deserve a detailed, holistic solution, not merely a simple fix to the membership of the Judicial Conduct Commission .

    Rep. Ure, speaking from the audience noted that he was a legislative member of the Judicial Conduct Commission. He said that there are a lot of different angles that have been played throughout the state on this important decision. He explained that it has been noted that he is after an impeachment of a certain judge, and he said, "yes, I am." He explained that there are problems in our judicial system which must be addressed. Concerning the Judicial Conduct Commission, he said that issues of whether it can even continue are currently before the court. It appears that the commission will conduct little, if any, legitimate business in the near future. This is a problem, he said.

    Rep. Ure also emphasized that the Legislature has traded a great deal of power to the Judiciary and that the Legislature is no longer a check and balance on that branch of government. Since being removed from the Judicial Conduct Commission, Rep. Ure said that he has received many phone calls decrying the behavior of particular judges. Some of the behavior in Utah's court rooms, he said, is not right. A conduct commission should have the authority to deal with judicial conduct, but judicial behavior has not changed, he said. This was the whole reason behind a judicial conduct commission, to review judicial behavior, not the legal aspects of a decision, but judicial conduct. Rep. Ure admonished the committee to find a solution to this problem because there are real strong feelings on this issue.

    Sen. Buhler questioned how to go forward in designing a system where we can require accountability of judges. In this process, he said, it ought to be noted that the majority of judges are operating as we would want them to, upholding the public trust they have been given. Second, we must deal with the implications for other boards and commissions. There are a number of boards and commissions that have representatives from all three branches. These boards have served us well. It is unfortunate that In Re Young calls these boards and commissions into question.

5.    Adjourn -

    MOTION: Rep. Johnson moved to adjourn the meeting at 11:40 p.m. The motion passed unanimously, with Sen. Hillyard, and Rep. Hickman absent for the vote.