Bob Bernick’s notebook: Does politics have a place in Utah’s judicial system?

On your ballot this year is a long list of Utah state judges, who by law now and then have to stand for retention election.

If half of all voters in a judge’s district vote “yes” on retention, then he or she keeps their job until their next retention election comes around – usually six years. If more than half vote “no,” he’s out of a job.

For the five justices on the highest court – the Utah Supreme Court – that retention election is every 10 years.

Utah lawmakers, wisely, years ago did away with direct election of judges. Some states – mainly in the South – still elect their judges. And a judge in those states can be opposed for re-election – like in any other candidate. He or she must raise campaign funds and campaign. And regularly, private lawyers and their firms, who practice before the judge, end up giving money to the judge at election time.

Or lawyers or their firms oppose a judge’s re-election and then have to practice before the judge if he or she wins.

A really poor form of picking and keeping the judiciary most would agree.

So, Utah has a system where a commission sends a few names up to the governor when a judicial vacancy occurs, and the Utah Senate, after public hearings, either confirms or rejects the governor’s nominee.

And when judges’ terms end, they stand before the voters of their district (statewide for Supreme Court and Court of Appeals) in retention.

What all this history?

Because this year how one of the Utah Supreme Court justices voted on a highly contested case – the Count My Vote’s attempt to get on next Tuesday’s ballot – could play a role in that justice’s retention election.

That is if we knew how that justice voted.

Which we don’t.

At least we didn’t know as of last Friday.

Weeks ago the high court heard oral arguments in Count My Vote’s challenge to the state’s citizen initiative petition law – specifically, that part of the law which allows those opposed to an initiative to personally contact those who signed the petition and ask them to take their name off.

CMV, backed by some heavy-hitting public people in the state, got the more than 113,000 voter signatures needed to get on the Nov. 6 ballot.

But Keep My Voice, the anti-CMV, anti-SB54 GOP archconservatives, were able to hire canvassers who, in turn, got around 200 petition signees in several rural state Senate districts to take their names off of the original petition.

That sunk CMV, which sought help from the Supreme Court.

In what was termed afterward by some CMV attorneys as a “hot court,” four of the Supremes asked hostile questions of the CMV lawyers, with two justices barely stopping short of outright laughing at the petitioners.

A few days later, the high court issued a ruling (not an opinion) saying they rejected the CMV appeal, and the petition would stay off the ballot. But the decision didn’t say how each justice voted.

The justices issued that ruling quickly so the Utah Elections Office could go forward with certifying the various ballots, with CMV off of them.

But we don’t know how each of the five justices voted, because they haven’t issued that opinion yet.

And guess who is on this November’s statewide ballot for his 10-year term retention?

Associate Justice Deno Himonas.

There are a lot of voters that wanted the CMV petition on the ballot. And upwards of 60 percent, or more, of voters supported the CMV initiation – and likely would have voted for it if the high court had put it on the ballot – polls by Dan Jones & Associates have shown.

However Himonas votes in the case, some voters would be angry at him.

Angry enough to vote against him for retention?


Maybe not.

But apparently, we aren’t going to get that chance.

Because the high court has taken weeks and weeks since the oral arguments, and still no written opinion – which will show us how Himonas and the other four justices voted on CMV.

I attended the oral arguments. And Himonas asked some critical questions to the CMV lawyers – showing his skepticism of their appeal.

If Himonas votes “no,” and voters knew that, it would follow that 60 percent statewide wouldn’t like that vote. And maybe remember Himonas when they filed out their ballots.

Who knows if some pro-CMV group would run ads against Himonas?

Or if he votes “yes” on the CMV appeal, then some Keep My Voice folks would be mad at him. Would they start a “no” retention vote campaign on Himonas?

Makes one wonder if the justices are waiting to issue their CMV opinion until after Nov. 6 – so no voter angry with Himonas can take it out on him on the ballot – since they don’t know how he voted.

Who says politics has no place in Utah’s judicial system.