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State senators voted down 3rd District Judge Robert Hilder's bid for a seat on the Utah Court of Appeals on Wednesday, some citing concerns about his demeanor and a ruling unpopular with Utah's strong gun rights lobby.
The Senate vote of 16 to 12 against Hilder marked the first time a judge has been rejected on the Senate floor since 2003, when senators began closely scrutinizing judicial appointees.
Hilder, widely considered by lawyers as one of the state's best judges, said afterward he was "disappointed." Asked if he felt he had been judged fairly by the Senate, Hilder replied: "No, how could I?"
Senators on Wednesday touched on a ruling Hilder made five years ago allowing the University of Utah to enforce its campus ban on firearms. They also mentioned a long and bitter child custody case where the mother was killed by police after kidnapping her ex-husband. But the focus of discussion on the Senate floor quickly shifted to Hilder's demeanor and general fitness.
Sen. Michael Waddoups, R-Taylorsville, told his colleagues Hilder shouldn't be appointed because of his "aggressive nature," which Waddoups claimed the judge exhibited three times during previous hearings before the Senate Judicial Confirmation Committee. Members of the committee made public references to Hilder's divorce and other aspects of his personal life before narrowly approving him in a 3-2 vote.
Waddoups called demeanor the "No. 1 reason" for his opposition to Hilder, despite having received about 200 messages from citizens on the gun issue and other concerns.
"He has a temper he has not learned to control," said Waddoups.
But several senators who are lawyers and have practiced before Hilder insisted the judge is steadfastly even-tempered, fair and polite.
Sen. Ross Romero, D-Salt Lake City, said he had received both favorable and unfavorable rulings from Hilder, who was "never "inappropriate or off-base." Sen. Scott McCoy, D-Salt Lake City, also an attorney, urged the Senate to assess Hilder based on the totality of his 13 years of service, which includes hundreds of trials, and "tens of thousands of decisions."
Sen. Patricia Jones, D-Holladay, noted Hilder received high scores for demeanor on attorney surveys that accompany voter guides. Waddoups on Wednesday also went through a list of rules governing judges and accused Hilder of "crossing the line" in areas pertaining to impartiality, promoting public confidence, avoiding impropriety and making public comment about cases. Hilder has not been disciplined in any of those areas by the state's Judicial Conduct Commission.
Stephen Owens, president-elect of the Utah State Bar said Hilder's "unpleasant experience" could have a chilling effect on other worthy candidates to the state's appellate courts.
"With any judge who's been on the bench for many years, it's easy to take a handful of opinions and hindsight them," Owens said.
Attorneys widely agree Hilder's 2003 ruling in favor of the U. had nothing to do with the Second Amendment, but was about a state's ability to contract with its employees. But many gun rights activists have labeled Hilder as against Second Amendment rights.
Sen. Chris Buttars, R-West Jordan, called Hilder a "sovereign" who had sided with "another sovereign" -- the university.
Clark Aposhian, chairman of the Utah Shooting Sports Council, said gun rights concerns were the "biggest component" related to Hilder's defeat.
Jerry Howe, a legislative policy analyst, said that since 2003 at least three judges have backed out of the confirmation process upon realizing they faced a potential negative vote before the full Senate.
A multitude of concerns came together to defeat Hilder, said Senate President John Valentine.
"No one of these things in my mind would have resulted in his loss, even the Second Amendment," Valentine said, "but when you aggregate them all together you just had a fabric that resulted in the final votes."
Staff writer Robert Gehrke contributed to this report.
What's Next? » Gov. Jon Huntsman Jr. had named Hilder to replace retiring Judge Judith Billings on the Court of Appeals. Wednesday's vote means the nomination process must begin again, with a nominating commission selecting another batch of candidates to forward to the governor. Huntsman's spokeswoman, Lisa Roskelly, said the governor was "obviously disappointed" that Hilder was not confirmed but will again look to appoint the best possible candidate.
Also Wednesday, the Senate confirmed Marvin Bagley to fill a seat in the 6th District Court to replace retiring Judge David Mower. The Senate also confirmed Christine Johnson to the 4th District Court to replace retiring Judge John Backlund. Both votes were unanimous.