This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Robert Gehrke's recent call for recall elections for judges warrants a brief discussion about the importance of an independent judiciary in Utah.
Gehrke made his proposal following criticism of Judge Thomas Low who, when sentencing Keith Robert Vallejo, who had been convicted of 10 counts of forcible sexual abuse and one count of object rape, remarked that "great men sometimes do bad things." Judge Low sentenced Vallejo to up to life in prison.
Responding to the judge's comments, Gehrke in his April 19 column concluded that "[i]t is well past time for Utah to join the ranks of states that have a mechanism for a recall election not just for judges but for all elected officials."
A proposal to subject judges to recall elections is no small thing, inasmuch as Utah's judicial system is born out of a document no less important than the Utah Constitution. Our state's founders established Article I of Utah's Constitution to create an independent judiciary, a principle anchored in the English Magna Carta of 1215.
In Lyon v. Burton, the Utah Supreme Court observed that the purpose of an independent judiciary was "to bar sovereign power, whether kingly, parliamentary, or legislative, from undermining an independent judiciary and arbitrarily abolishing remedies that protect the person, property, or reputation of each individual."
Article VIII of the Utah Constitution goes on to permit judges to sit for extended terms, subject to voter approval in six-year retention elections. The retention election system allows jurists to dispense justice without regard to the vagaries of day-to-day public opinion.
As former U.S. Supreme Court Justice Sandra Day O'Connor once told Utah lawyers, "The reason why judicial independence is so important is because there has to be a place where being right is more important than being popular."
Further, Utah's Judicial Conduct Commission administers the Utah Code of Judicial Conduct. That code consists of stringent ethical canons aimed at ensuring the fair and objective administration of justice. In response to filed complaints, the Judicial Conduct Commission can investigate judges and, where violations are found, recommend to the Utah Supreme Court disciplinary action, including that a judge be reprimanded, censured, suspended or removed from the bench.
Public reports indicate that at least one group has filed a complaint regarding Judge Low with the commission. In short, there is already an effective system in place to respond to concerns of the public, including crime victims.
Utah's constitutional and administrative underpinnings of its judicial branch have served Utah well. Thanks to a Legislature that has taken great care to preserve a strong judicial branch and a governor who has carefully selected well-qualified judges, our state is widely regarded nationally as having an excellent judiciary.
Utah's judges and court administrators enjoy an excellent national reputation when it comes to the efficient and effective operation of a judicial system that wrings exceptional value from every dollar it is allocated. My clients from around the country report their deep satisfaction with Utah judges who intelligently and dispassionately apply the law to the facts. Utah's excellent reputation in this regard is a testament to the success that comes from the proper maintenance of an independent judiciary.
It is currently fashionable to criticize judges with whom one disagrees. Of course, the press and the public should engage in spirited debate about important decisions handed down by courts, and even dissect the statements judges make in issuing their decisions. That is the nature of the open "perfect union" in which we live and clearly the province of the Fourth Estate. But to respond to controversial remarks or decisions by calling for judicial recall elections ignores the already-existing strength and credibility of Utah's judiciary and the importance of judicial independence that is founded in our state's Constitution.
Robert O. Rice is president of the Utah State Bar.