When you step into the voting booth on Nov. 2, the fate of 37 Utah judges will be in your hands, including three of the five justices of the Utah Supreme Court.
Many have wondered, including some lawmakers, whether the way Utahns retain their judges is meaningful given that most voters know very little about most judges when they punch the "yes" or "no" hole.
But legal experts say Utah's system of retaining judges strikes a balance of insulating judges from political pressures while leaving them open to public accountability.
Currently, judges do not run against opponents for their positions. Judges are selected through a four-step process in which a governor-appointed panel of attorneys and other citizens is formed. The panel then reviews applications and creates a list of three to seven candidates. The governor selects one from the list and the appointment is then confirmed by a majority vote of the Utah State Senate.
Seated judges are then retained by a popular vote. Supreme Court justices serve 10-year terms, while appellate and district judges serve six-year terms. Justice court judges serve four-year terms.
There have been proposals in the past to have judges run in contested races, but that opens a whole realm of problems, legal experts say.
"I would be loath to turn this into a typical political election," University of Utah law professor Erik Luna said.
A study by the American Tort Reform Association identified courts in several states, such as Mississippi, Illinois, Texas and Louisiana, which have experienced serious miscarriages of justice in civil cases due to, in part, judges being influenced by insurance companies and law firms who contribute to judicial re-election campaigns.
In some of these states, judges have granted some of the largest civil damages against companies on behalf of local residents.
Luna said Utah has been lucky to have, in large part, an exemplary judiciary. Unlike political races, in which candidates beat their chests over accomplishments, Luna said in judicial retention elections, it's the silence that speaks for judges.
"No news generally means good news," Luna said. "For better or for worse, when judges do their jobs, they don't get a pat on the back. For the most part, judges get attention for when something goes wrong."
Luna adds that if the public is generally dissatisfied with a judge, they have the option to publicly campaign for his or her removal. The best example of this was the ouster of 3rd District Judge David Young.
Brigham Young University law professor Marguerite Driessen said it is important to keep judges insulated from politics, mainly because sometimes sound constitutional rulings may not always be popular.
"The problem is politics is ugly," Driessen said. "If someone doesn't like a decision, or if a judge makes a ruling that is unpopular with say a large corporation, then they would have the ability to take steps to act against that."
The thinking behind a popular retention is almost counter to political races.
"The thought is that people without knowledge tend not to vote someone out unless they have a reason to do so," Driessen said.
However, Driessen said she has some limited concern that retention elections may be used to get back at certain judges for rulings, perhaps against a big corporation or political group.
In her opinion, Driessen said at least justices with the Utah Supreme Court and the Utah Court of Appeals should be appointed for life.
Utah Supreme Court Justice Ronald Nehring said he didn't think that was a bad idea.
"It would be beneficial," Nehring said, for removing the potential of political pressure. However, he also said he felt the current system is a "pretty fair trade off."
"The way we do it is really a compromise," Nehring said. "We're in the business of doing things that the majority don't like."
The quality controls are already in place to keep judges in line, Nehring said, with the current selection process and the oversight of the Judicial Conduct Commission. Nehring said barring a small handful of examples, which includes the recent drug conviction of 4th District Judge Ray Harding Jr., Utah's judges are for the most part very professional.
"I can't think of one example of a judge being convicted of taking a bribe or improper influence," Nehring said.
Three of Nehring's fellow justices are up for retention this year: Chief Justice Christine Durham, Associate Chief Justice Michael Wilkins and Justice Matthew Durrant.
Professors Luna and Driessen agreed that Utah is lucky to have such highly respected state Supreme Court justices.
"It's a very strong court," said Luna, who added the justices are known for issuing very thoughtful and cogent opinions. Even though he may not agree with the Supreme Court, Luna said the opinions are hard not to respect.
"I think they have been doing a great job," Driessen said.
E-mail: gfattah@desnews.com