The Utah Judicial Conduct Commission, the body which investigates and makes findings regarding charges of wrongdoing against state judges, consists of 11 members: two state representatives appointed by the speaker of the House, two state senators appointed by the Senate president, two state Bar members appointed by the Utah Supreme Court, three members of the public at large appointed by the governor with the consent of the Senate, a trial court judge and a judge of the Utah Court of Appeals. Utah and Rhode Island are the only two states in the Union which have state legislators so positioned on their judicial oversight panels.
In mid-1998, the Utah Supreme Court held that it was unconstitutional for state legislators to serve on this disciplinary board because it allegedly violated the Separation of Powers principle. Then in early 1999, Utah's highest court quickly reversed itself (given the tit-for-tat prospect of lawyers likewise being barred as state legislators), declaring that they, not the Judicial Conduct Commission, had ultimate decision-making responsibility concerning JCC recommendations, and the Commission was merely an
investigative arm of the Supreme Court, and hence the presence of legislators on the Commission was OK.
This inbred arrangement, whereby the Utah Supreme Court is both the promulgator of rules defining judicial misbehavior and the interpreter and adjudicator of such rules, is as much a violation of the Separation of Powers principle as the other situation.
Clifton W. Panos
Salt Lake City