Governor Michael O. Leavitt’s impact on Utah’s judiciary is was historic. When one considers the sheer number of appointments made, the growth of Utah’s government supporting the courts, and the average term of judges, this is really a legacy in its truest sense. With 64 appointments, the imprint he made approaches 75-80% of the current judges. When one multiplies those appointments by everything from the growing case loads to pioneering efforts in specialty courts, it is not an overstatement to say that Governor Leavitt has been a founding father of Utah’s judiciary. (Attach the Appointment Lists)
One needs to consider the impact of the years of service of those judges put into the bench as well. Some of the Leavitt appointees have already retired, and the Governor created a career for so many people on the bench, and their legacies stand. The sheer numbers are staggering, and many appointments were brand new positions, particularly in the juvenile court. Some were a result of policy decisions to eliminate court commissioners and give them full judicial authority. Some of those that were district court appointments have been moved up to appellate court appointments. Judge Thorne is an example of that. Looking at the Supreme Court, Governor Leavitt appointed four of the five sitting justices, and he appointed Judge Russon, who is now retired.
Of course, the Utah Supreme Court has the unique role as a policy making group under the Utah Constitution; they frequently create new case law. Among the Leavitt appointees are Jill Parrish and Ron Nehring, the two newest justices. Those two justices are very young and may very well be on the Supreme Court for 30 years. It is hard to quantify influence like that. Like all justices, they surprise the appointing authority from time to time, but that is much less likely with the Utah Supreme Court because unlike the United State Supreme Court with 9 justices, there are only 5 in Utah. Also, there is no real designated division like the US Supreme Court, which is all the more reason that they carry the imprimatur of Mike Leavitt. It will take a generation to understand the impact, because it is difficult to see while it is moving. But, history will show that Governor Leavitt, through his appointees, will have as much impact on Utah State law as any governor since Brigham Young was Governor of the Utah territory.
Governor Leavitt understood his role as well as any appointing authority. That was illustrated through the weight he gave to those decisions and how thorough he was in the appointment process. When he appointed judges, there was no more important issue to him. Bills, vetoes, and budgets all come and go, but he knew that these judges would be hearing thousands of cases for combined hundreds of years. If one considers the 64 judges appointed, they may average 10 years on the bench, which equals 640 judicial years. Of course this fact is a two edged sword; the Governor is also responsible for every judge’s conduct or misconduct. But, because of his thoroughness and the thoughtfulness with which he selected judges, they understood the great significance of their appointment and their post. Ed McKonkie, former Executive Director of CCJJ, speculated, “If we did a state by state study, I don’t think there would be a handful of governors that would have this kind of impact on a judiciary in the US.”
There is another level of impact in the appointment process. Judges are not elected in Utah; they are recommended for appointment by judicial nominating commissions. The governor appoints the membership of the judicial nominating commission as well. (The Utah state bar has one appointment per nominating commission.) Therefore, Governor Leavitt also shaped the group that made the selections of candidates. The commissions are based district by district, and then there is an appellate nominating commission that serves statewide for the Utah Court of Appeals and the Utah Supreme Court. A governor, therefore, is able to appoint like-minded people that are going to be reviewing the candidates in the initial process. Of course, the commissions must reflect political diversity, but that was something that was always important to Governor Leavitt anyway. He had a knack for surrounding himself with a diverse group of people from either party, but that were like minded nonetheless. Not because the state law required him to do so, but Governor Leavitt wanted a mix of gender and race, political diversity, and diversity of thought where we could get it. This was true of the commissioners he appointed because he wanted a thorough vetting of judicial candidates.
In Utah, diversity can be difficult to find. The Governor would often get five recommended names from some of the he smaller rural judicial districts, and only three from the smallest districts. Often the candidates would be carpetbaggers. Sometimes there were not enough people with aspirations or the qualifications for the job in that area, and Governor Leavitt got creative. For example, in 2003, in the case of Judge Westfall in the Fifth District, the Governor imposed some requirements that were not required by the State Constitution. Judge Westfall, who lived in St. George, was seriously being considered for a judgeship in Cedar City. Governor Leavitt made it a condition of the appointment that he move to Cedar City before being appointed, and the Governor was unbending on the condition. He wanted the judge appointed in Cedar City to have his kids in Cedar City schools, his family in the local churches, and his home in a local neighborhood. He did not want any Judge commuting, even within the district. Ed McKonkie recalls thinking, “Wow, now that’s a tough sell to be a judge, to uproot his family and move like that. Of course, that was no legal or constitutional requirement, it was Mike Leavitt’s requirement.”
Camille Anthony, former Executive Director of CCJJ for the best part of the Leavitt Administration remembers, “He felt the community deserved to have someone who was in touch with their issues; that’s interesting from a judge’s perspective because they have to stay unbiased. But, he wanted them to understand the sensibilities of that community and the dynamics there. That was very important to him.” Judge Westfall’s experience was an extreme case, but the Governor always considered how that judge would fit into the community.
Once the nominating commission provided the Governor with three to five names, the Executive Director of the Utah Commission on Criminal and Juvenile Justice (CCJJ) received the applications and all of the public comment that came with each of them. Once they go to the governor, there is a ten-day comment period, and the Director of CCJJ would dig up high school teachers, spouses, kids, partners, law school colleagues—all these people weighed in. By and large, the comments were positive, but occasionally the Director would get a hold of a client that was dissatisfied that would provide information. Special interest groups would sometimes weigh in complaining that a candidate was a republican or democrat or held a philosophy with a biased perspective, which by law cannot be considered. All comments were accepted and CCJJ would ferret out irrelevant comments, and the Director would provide a summary to the Governofr. If the Governor was vacillating between multiple candidates, he would take the entire file and study it. For the most part, however, the Director was able to provide him a thorough assessment of each of the candidates without him having to read every letter.
Next, the Director would set up appointments that would last about a half hour. The Governor would spend his time with each of the candidates, and the Lt Governor was always invited to the interview process. She did not always participate based on her schedule, but she was always invited. The Governor’s General Counsel was also invited as was the Chief of Staff. And, of course, the Director of CCJJ was present during interviews. The Governor always tried to make people feel at ease, and working at the capital, it was easy to obtain a familiarity with the Governor. For a citizen, however, coming to the Governor’s office for a half hour discussion could be terrifying for some. Particularly when one considers the stakes; the trepidation was magnified even more. The Governor used to say, “Listen, I know this is a tough way to get a job, but mine was tough to get, too.” And that would put people at ease somewhat.
Camille Anthony remembers doing well over 300 interviews as the Executive Director of CCJJ. Ironically, Camille remembers having interviewed with some of those same people after law school for a job. She said, “Maybe this doesn’t say much about me, but to see them with a little bit of cotton mouth was a bit gratifying.” Many candidates gave the standard canned answer when asked why do they wanted to be a judge. They would say, “I’ve had a good career; I feel like it’s time for me to give back to my community in the form of public service. This is the way I’ve been trained, and I have the ability to give back in this way. I care about people, and I want to help them solve their problems.” Occasionally, they would say, “I always wanted to be a judge since I clerked for a Judge X in law school; or I went to law school with the idea of becoming a judge, it’s what I wanted to do.” People have lots of reasons, and Camille believed most of the candidates were sincere. Everyone present during the interviews was encouraged by the Governor to participate. Camille was not just taking notes while the Governor talked to the candidate; he wanted to see how they interacted with his staff. He wanted the staff to have candid discussions with candidates, so he could study and evaluate how the candidate interacted with people.
The Executive Director of CCJJ had particular insight simply because s/he was the ones tasked with going through the 5-inch file. The file was comprehensive, even including their credit reports. So, the Governor would often toss softballs, and then the Executive Director or would pounce and ask the candidate to how they would respond to a difficult issue as a judge, or even as a candidate going through confirmation hearings. They played good cop, bad cop with the candidates. Not to say that the Governor did not ask searching, tough questions, but he had generally not gone through all the documentation. That allowed the Executive Directors to have a principal role in the process. The Governor never interrupted a question and had great respect during the interviews, and nearly all of the candidates left feeling good and relieved about the process.
Many candidates went through the process multiple times, which created an interesting dynamic. As an example, Camille remembers Judge Roth, who had been with the US Attorney’s Office for many years. He was eminently qualified, and he gave a good interview. He did not get appointed his first time around for a district court position despite having extensive federal court experience, largely because his experience was on the civil side only. When he was not appointed the first time, Judge Roth asked the US Attorney to transfer him over to the criminal side so he could get that body of experience, because, ultimately, he wanted to be a judge. He applied a second time about a year later. The move to the criminal division, to many, was considered a step back in the US Attorney’s office. But Judge Roth was able to get additional experience with handling warrants, and dealing with criminal evidentiary and procedural rules. He applied again a second time about a year later. When he came up the second time, the Governor said, “We’ve been here before, tell me what’s changed.” Camille recalls the impressive answer. Judge Roth said, “Governor, I recognized the quality of the person that you appointed the first time, I recognized the deficits in my own candidacy, and this is what I’ve done about.” He listed how he had obtained additional experience, and he was appointed the second time. Camille believes Judge Roth has be a phenomenal judge ever since.
The Governor has a really good memory, particularly when it comes to people he has met. When Judge Atherton was a candidate, the Governor asked his standard question, “Tell me about you family.” Judge Atherton spoke about her son Michael. Camille recalled that the son was adopted and was going through some difficulties. (Camille could not remember the details). After the interview, the Governor wrote a personal note to this child with his same name. Camille interacted with Judge Atherton after that on committee, and Judge Atherton spoke often about the fact that her son, who is now in his twenties, kept that note, and it meant a great deal to him. The Governor was able to make that personal connection with people’s families.
Judge Steele in the Uinta Basin was a juvenile court appointment, and the Governor went out there for a small town parade. Judge Steele’s son was in the crowd at the parade, and the Governor was sitting on the back of the car waving. He heard from the crowd, “Hey, Governor! Appoint my dad!” Camille recalls that the interviews were over. Camille said that she “is sure that’s not the sole reason he was appointed, but ultimately, he did get appointed, and it was important to the Governor for that son to be the one to tell his dad that he was appointed. It was my job, once the Governor made his decision, to call the son who was a construction worker. I located him in Logan over a voicemail where he was staying. We were running against the 30-day deadline, and we had to make a decision within 30 days or the Chief Justice makes the appointment. Finally, I get this kid on the phone and I say, ‘Could you please call your dad and tell him he’s the judge.’ And then I think, if my memory serves me right, his dad didn’t believe him. . . . So, ultimately, I made the phone call and confirmed the appointment, but [the Governor] liked to put that personal touch on the job.”
Ed McKonkie reiterated that Governor Leavitt was not all peaches and cream through the process. He is a savvy politician, and that carried into his judicial appointments, particularly with the Supreme Court. Because of the unique nature of that Court, and the policy making role it fills, Ed recalls sitting back and allowing the Governor to take a much more active role in the interview process. Ed got to see something unique; he saw the dynamics of the courts, the senate, and the Governor’s office as they struggled to find the right candidate for the Supreme Court. The Governor orchestrated the whole process and was very tough and determined.
As an example, Ed remembers the appointment process of Justice Nehring. He was an extraordinary candidate. However, he was going through cancer treatment at the time. The Governor was able to demonstrate the sensitivity that Camille mentioned, but then he also had a pragmatic approach. He did not want to appoint a justice that was going to die in a year or two. Ed recalls, “Through the process, judges waive, pretty much, all their confidentiality, and I remember being assigned to go and speak to Justice Nehring’s oncologists. This was known to all concerned. I had to speak to the doctors saying, ‘He has a serious cancer; what are his chances.’ I got these doctors looking at me, saying, ‘That’s going to play a part?’ I said, ‘Absolutely, how often does a governor get to appoint Supreme Court Justices?’ I had to bring back written medical documentation about how favorable the chemotherapy was going before the Governor was going to appoint someone that he liked and was the leading candidate, but that he wanted to make sure . . .was going to spend 25 years on the Supreme Court.” Camille added, “Luckily, he’s doing well.” Ed further questioned, “I always wondered if I came back carrying some dire diagnosis, whether the Gov would say, 70-30 survival rate against, I don’t know, we never got to that. But, [the Governor] just didn’t consider—he considered; he had foresight and he was tough sometimes with that foresight.”
The other question that the Governor would always pose to candidates was, “Take me back to kindergarten and tell me what shaped you.” To that question, Camille stated, “I will tell you, and I have no empirical data to prove this, but those people who actually answered the question and said, I went to Sherman Elementary School and my teacher was Mrs. Whatever, and they really thought about that question and answered sincerely, had much more success. [The Governor] loved a person’s life story. He loved to know what shaped her/him, whether it was a stint in Vietnam, a health issue, a family dynamic, a single-parent household, or something else that stood out.”
Camille continued, “Judge Hilder, I will never forget his interview. [He was a] child of an alcoholic father in Australia, a high school dropout, and he ended up tending bar, and two LDS missionaries happened to rent the apartment above the bar. They would come in for a meal in the late afternoon and then he just started talking to them. Ultimately, he converted to the [LDS] Church and made his way to the United States. Again, as a high school dropout, he got his GED and put himself through college. I mean, there’s just richness in his story. He ultimately put himself through law school, and he’s a brilliant legal scholar in the community. It was such a captivating story. It was the kind of interview where the Governor said, ‘I’m not sure I have any further questions because I’m just that impressed.’”
There were other amazing stories. Camille remembers Judge Denise Linder, a product of Castro’s Cuba, was a refugee that came with her mother to the United States, and her father followed years and years later. She ended up as a law clerk for Sandra Day O’Conner. Camille stated, “Those are the stories that you remember, and those stories were drawn out by Governor Leavitt’s question. I can guarantee that people who answered, ‘well, I was born in Salt Lake, I went to the University of Utah, and then I went to law school and joined this firm.’ That didn’t answer the question: ‘take me back to kindergarten.’ We already had a resume in front of us, and those typical interviews didn’t stand out because everybody had those things in common. It was the things that were personalized and compelling that stood out. So, that was a fun part of the job–getting to know these people and their stories.”
Making an Appointment
Then it would come time to make a decision, and it was always a very deliberative process. In fact, the Governor started asking judges, “tell me what process you go through to make decisions.” Then, he would explain, “In making this decision, you need to know what I’m going to do. I interview all the candidates, and then I take some time to reflect. I may make some phone calls based on references or people I trust that know you.” The Governor would be very open about and honest about the process. On the personal side, Camille revealed, “I think he’d pray about it. I think he’d try to get some level of [divine] confirmation that the decision he was making was a good one. And I think, by and large, he did that on each of these appointments.”
On this same personal note, Ed McKonkie stated, “When you think about . . . the regular district court judge, and how many rulings on family issues will be made, taking children out of homes, adoptions, divorces, custody, the human impact that judge had, you could see [the Governor] make the decisions personal. He evolved as a governor to see the importance of his choices–picking someone as a judge that is going to have a bigger impact on a human scale, day to day, than perhaps anyone in government.” Camille continued, “[The Governor] was very concerned about the ultimate judiciary responsibilities regarding the lives of citizens, like taking kids from families, or the government taking away life. We didn’t dwell on death penalty issues, but certainly, occasionally, that issue would come up, and the Governor would ask ‘how do you feel about that?’ And the answer predictably was that ‘a judge must follow the law, and I am prepared in this role to make those most difficult decisions.’”
Ed recalled that the Governor felt good about his decisions; he had confidence in the judges he appointed. In 1996, the state had just initiated a bitter debate on whether to have mandatory minimum sentencing for child sex offences. Ed was in the middle of that debate as the Drector of the Sentencing Commission. The bill CCJJ drafted was going to dramatically change the law that had been in place for 15 years. The bill was giving more discretion to the judges and the Board of Pardons. Ed remembered when the Gov asked him, “Politically, this is a tough thing to do because it doesn’t match the 30-second sound bite of being tough on crime; yet, we were holding steady on this matter. Every state was going the other way to show they were tough on crime. And I asked [the Governor] in one of my very first major meetings with him: ‘Gov, do you trust the crime being sentenced by the legislature, or do you trust the criminals being sentenced by these individuals that you are putting on the court and will continue to put on the court?’ Because he has such confidence in the individuals . . . he didn’t hesitate to sign that bill.”
Both Camille and Ed agreed that the most difficult part of the job was to call candidates after the decision had been made. Camille recalls that the Governor would call her and tell her of the decision. She would take about 10 minutes to gather her courage and then make the calls. Her standard line was, “Hello, Ms. or Mr. Candidate, this is Camille calling. Governor Leavitt has made a decision regarding the district court appointment and has asked you to serve. Are you willing to accept that appointment?” The answer would be a gleeful “yes, oh my gosh, I don’t know what to say, what do I do now?” That was always a fun call. It really made someone’s day. Then Camille would explain that the candidates name would be sent to the Senate and the time frame of confirmation would be explained. Under Utah law, the senate has 30 days to confirm the nominee. The senate may or may not hold a hearing. And then once the candidate is confirmed, then the candidate will be sworn in by the Supreme Court, and he or she is a judge.
Camille had a good working relationship with the legislative staff, and she would send the information up and it would go through an innocuous process; confirmation was almost always certain. This was a time when the Senate simply would defer to the executive and stay out of the way. They would generally rubber stamp the recommendations.
Camille recalls that calling the other candidates was always an adventure. She got screamed at, had spouses begging her to give the result because the candidate was out of town, had spouses crying on the phone, and had people who would say absolutely nothing. Camille would break the news starting the conversation by saying, “Candidate X, the Governor has appointed Candidate Y to the bench.” Silence. Camille would say, “Thank you for your willingness to do this public service, we wish you the very best in your endeavors. Good bye.” There would be nothing on the other end. Fortunately, there were other candidates who were gracious in defeat and they would say, thank you. The most gracious candidates would say something like: “I cannot tell you what an honor it was to be considered, to have the opportunity to come to the state capitol and to meet the Governor. He treated me so well, and I felt so much at ease.” The gracious candidates far outnumbered the other candidates, but the other candidates were the most memorable. Camille remembers that she could tell a lot about the person, and what could have been that person’s judicial temperament if they had been selected. Camille said, “One particular candidate, I will not divulge the name, but this particular one applied probably five times and on the fitfth time, she actually showed up at a republican political fund raiser, which was the kiss of death. In her mind, she was thinking that she needed to be a republican to be appointed. Nothing could have been further from the truth, and I remember meeting the Governor at the car as he came to the event. I said, ‘This candidate is here.’ He said, ‘You’ve got to be kidding me.’ Safe to say, she does not currently serve on the bench. But, on her fourth try, she literally screamed at Camille on the phone, saying, “What do I have to do to be considered?” Fortunately, Camille got an apology letter after that phone call.
Ed had very similar experiences. In the case of Justice Parrish and Nehring, the Governor took the privilege of dolling out of good news from Ed and called the successful candidates himself. It was a big enough deal that he wanted to have the conversations personally. Then he left Ed to call the others. Luckily, the other candidates were very gracious. On another occasion, however, the Governor and Rich warned Ed that a particular candidate would throw a tantrum. Ed knew this candidate well, and the status of this individual. Ed did not believe the Governor and Rich. Ed called the individual, and remembers it was like talking to a two year old throwing a tantrum. The Governor and Rich had nailed it on the head. All Ed could say when he reported was that the Governor had made the right decision not to appoint that particular individual because he had shown his true colors and temperament. Ed suspects years later that the individual continued holding a grudge. This person is a very high profile individual in Utah, and it is just remarkable that he could behave that way.
After all the phone calls were made, the Senate had an opportunity to confirm. Occasionally the Senate would hold a, but the hearing would be “a love fest” according to Camille. Most of the time, the Senate did not bother holding a hearing. The staff would make sure the candidate met all the requirements, the Senate would place the issue on advice and consent during Interim Day, and the candidate would be confirmed without a second look. That changed dramatically after Camille left the Governor’s senior staff and Ed took over.
This issue must be highlighted because if an historian was writing a book on the government of Utah, this shift would deserve a chapter. In late 2003 and early 2004, the legislature did a complete 180 when it came to judicial appointments. This turn about had nothing to do with the caliber of candidates being nominated; the process was consistent. The candidates were thoroughly screened and vetted. It was simply a product of legislative politics and the animosity that was generated toward the Leavitt Administration.
Ed remembers the Chair of the Senate Confirmation Committee approaching him on the marble stairs of the Capitol, and he said, “We are going to reject one of the upcoming judicial candidates.” Ed responded, “One of them?” And he said, “Yeah, we’re giving you fair notice, we’re tired of being a rubber stamp.” Ed responded, “Wait, you don’t have a specific candidate or specific issue that you are referring to; you’re giving me official notice that the Senate is planning to reject a candidate to send a message to the Governor?” The Chair said, “That’s right.” Ed responded in shock, “Do you have any idea what that will do to the individual you are going to pick at random as a sacrificial lamb?” The Senator did not care.
Camille’s experience with a cooperative Senate changed dramatically, almost overnight. One could say that the senate was doing its constitutional duty to some extent, but the members were being politically vindictive, and they rejected a candidate out of hand. Ed does not believe they had cause to do it. This particular candidate was strong and would have made a great judge. Like all candidates, he had some issues, but there was no clear reason to drag him through the process and then deny his confirmation. Ed learned later of the impact on the family. Ed asked his Bishop, who was the brother of the candidate how the candidate was fairing a year or two afterward. Ed was informed that the wife of the candidate had a nervous breakdown. That was the kind of impact the action had. Afterward, it got very, very tough just to go through the process. Perhaps the process needed to be ratcheted up from the rubber stamp, but it was taken to such an extreme politically, that it changed the landscape of judicial appointing in the Leavitt Administration. After Governor Leavitt, Olene Walker had to deal with that same kind of animosity with her several appointments. This pattern has not changed. Most recently, Judge Hilder’s attempt to be appointed to the court of appeals was derailed without just cause, according to Ed and Camille.
Ed explained that his father was the president of the Senate in 1965 when the appointment process replaced contested elections. The Senate felt the judiciary was too liberal. They were not upholding many of the laws passed by the legislature. The response from the legislature at the time was to take over the process. When Oscar McKonkie watched his son, 35-40 years later, go through this experience, he started to regret the change. Oscar stated that it was less political when the state had contested elections. The shift during the Leavitt Administration was a grab by a conservative legislature to wrest power from the executive. The enactment of the judicial evaluation committee is indicative of that shift. Ed and Camille both agree that this shift signaled the systematic intrusion on judicial independence by the legislature since the last couple of years of Leavitt’s Administration. While the legislature believes it is once again reigning in liberal judges, it is, in fact intruding upon their constituents by weakening the judiciary, cutting its budgets, increasing its case loads, and then claiming victory without connecting the dots.
The legislature’s actions, according to Camille, are having a chilling effect on those who would like to serve the public in this important capacity. Camille stated, “Where I can honestly say the candidates, those 300 candidates that applied for judgeships, for the most part, were the people at the top of their game, and they viewed a judgeship as a step up, a level of service, and a pinnacle of their career. Who would be willing to put themselves through this very personal, and I’ll even use the word hateful, process to get a job that pays them less than they are making and they can just retire in 5 years. And so, I think that you have to look at it over time, but I would say the quality of the candidates will go down. More and more, candidates are lawyers who are sick of doing billable hours and want a nice government job rather than someone who’s looking at it as an opportunity for public service.”
Ed added, “It is so ironic that two branches of the same party split on this. Now, there is, at least in my experience, a presumption against the candidate. It is no longer advice and consent of the legislature. The legislators became self-appointed stumbling blocks to strong candidates for political purposes. And that was an historic change in Utah’s process, and it’s continuing today. The legislature still has animosities towards Huntsman, and it will be interesting to see what happens with Herbert. . . . Most of the candidates are taking significant pay reductions from the private sector, they are putting themselves out there, and when you got this kind of vitriolic inspection, it backfires, it will backfire.”
Could the next governor answer a critical question such as the question on mandatory sentencing the same way Governor Leavitt did? Camille thinks the answer is no. She said, “The governor, whomever it is, is going to have a tough time saying, ‘yeah, I have absolute confidence in the level of professionalism and personal integrity of the people I’ve appointed, such that I trust them more than I do a legislative body to have the discretion needed on this particular piece of the criminal justice system.’” There will not likely be a complete void of qualified candidates in the future, but the quality of the pool will diminish over time. Camille continued, “Honestly, in all of the groups of candidates that were selected, almost every time, you could appoint any one of the 5, and they would have done a good job. And, I would often tell the unsuccessful candidates, there is nothing about you that makes you unappointable. The Governor believes it’s just not your time just yet. But, now, who knows?”
Strength of the Bench
Looking at the Utah State Bar surveys where judges are evaluated, by and large, attorneys have very favorable opinions of Utah’s judges. Compared to other states and the problems they have had with judges, Utah is very fortunate. It will be very interesting to see how the Judicial Evaluation Committee will affect the judges because the Committee will give judges grades on the voter pamphlets. There is a national trend to scrutinize judges, and the Leavitt judges will either have to adapt to that or retire. Ed McKonkie speculates that “history will still judge how these appointments will end, but everything looks very favorable currently. This will be known as a very strong, fair, and I’ll say moderate bench, with just good people from different backgrounds. It’s a good cross section of Utah, a much more representative cross section than the legislature.” Ed continued, I’m hoping this is the compromise [of appointing a Judicial Evaluation Committee] that will pacify the legislature, that they will quit their intrusion on an independent judiciary, and that this will be the lesser of two evils. But it will be interesting to see.”
Camille Anthony stated, “I can honestly say, having sat through almost all of these, that party affiliation never entered into the discussion; ideology, sure. The level of comfort with judicial activism was also an issue. But, I think we’ve got, for our state, a fairly diverse bench, and by diversity, it’s geographic, it’s gender, its ideology, its background or upbringing. We can always use more ethnic diversity, I don’t know if it’s reflective of the population at large, but Utah is doing a pretty good job.” Ed added, “And there was a socio-economic diversity that I loved to see. There’s a stereotype of judges that they are elitist and are professionals with a JD degree, which is going to put them in the upper tax brackets. But there was a conscious effort to remember who would be going before judges. I remember, for example Deno Himonas, the first Greek-American judge. Ironically, because politics was not a litmus test, that stoked the fire of the Senate to intrude on the process in an unprecedented way. That was the reality.”
Camille continued, “Another example of socio-economic diversity is Andy Valdez. He had worked as a legal defender. He grew up as an Hispanic, west side kid, in a dysfunctional family. He sold newspapers on the corner, and through a good deal of mentoring that he describes in this book, he was able to go to law school and eventually be appointed to the bench. He almost didn’t apply because the perception was that the Bangerter administration would never appoint a defense attorney to the bench. And so, Andy applied for the juvenile court, the first position that was open on the juvenile court, but he did not get appointed. He’d been a juvenile prosecutor; he was great for the bench. Andy called me and said, is there any hope, is there any reason to apply again? I told him, ‘we were impressed, it just wasn’t his time.’ I told him, ‘he should absolutely apply again’; he did, and he was appointed for the next opening that came up in the Third District Juvenile Court. I don’t think anyone was more shocked than him. Andy’s a colorful character and he’s done some wacky stuff from the bench, but he is invested in the lives of the people.”
Ed remembers being a Supreme Court law clerk when Judge Valdez was being sworn in. Judge Valdez brought in students from the elementary school in his neighborhood. Ed reminisced, “So you’ve got this stuffy, staunch, Supreme Court up there, swearing in a juvenile court judge and on the floor are all these 6, 7, 8-year old Latino kids watching rapt. I will never forget that. I peaked in and Judge Valdez said, ‘Every one of you now has proof that you can be a judge in the state of Utah.’ And, spontaneously, they burst out with ‘Viva, Valdez! Viva, Valdez!’ And, I remember looking at former Chief Justice Zimmerman, and I thought he was going to faint. That kind of stuff carries on for generations.”
When Judge Russon was appointed to the Supreme Court, he had been on the Court of Appeals and he held senior status. Judge Russon was quite old at the time, and even though e was not asked the question, Judge Russon bluntly offered in his interview, “Governor, if you appoint me to the Supreme Court, I want to stay [some number] of years, and I can guarantee you that I will retire afterward. I will retire in such a way that you will have the opportunity to appoint my replacement.” And, that’s exactly what happened. He retired and Matt Durrant took that Judge Russon’s position.
Ed McKonkie postulated, “The Governor’s influence and thoughtfulness in this process carried over to Olene Walker. She was her own individual, and she had some goals of her own that were borne out in her appointments because she had six or seven appointments in her one year, which is pretty high…But, it was a smooth transition. I got to be in that position with two different governors, and the Leavitt influence was indirect on the Walker appointees because of how much confidence Olene had in the process and how it was implemented. When Olene took over as Governor, as the first female governor in Utah, she said she ‘wanted more chicks on the bench…’” Governor Leavitt was always looking for more women to serve as well. Camille remembers the Governor saying, “I am just itching, at some point, to quote Bart Simpson and say, this woman was appointed because you just can’t have too many chicks on the bench”
There have been problems with some Utah judges, but given the current evaluations, the Judges in Utah make a very strong bench. Camille could think of only two very unfortunate appointments. “I won’t give the names,” she said, “but one judge had some drug dependency issues that were not revealed at the time [of appointment]. The educational pedigree, everything about that person made him a very notable candidate, and that person was appointed. After a few years, it started to impact that judge’s ability to do the job, and the judge was removed.”
Camille continued, “The second one is a little more controversial. The judge was appointed to the Juvenile Court, which is a very different. The court proceedings are very relaxed. The rules of procedure in the court are very different; they are far less formal, and it’s a social service environment rather than an adversarial process. . . . This particular judge did not function well in that relaxed environment, having come from an incredibly formal, federal prosecution position. And, ultimately, through a very difficult process, he ended up being released from the bench. I’m not sure it was fair or warranted. This particular judge made choices along the way that kind of put him in a position where he had to be removed, but his legal expertise was stellar, and I think he made some good rulings. He was sort of trying to swim against the stream on the procedural side of things, and he lost. So I can think of two that, ultimately, did not end well.”
Changes to the Courts
The first drug court in Utah came through Dennis Fuchs in the Third District Court as an application to the CCJJ. The Third District wanted to try out the drug court modeled after then Attorney General Janet Reno’s idea of drug courts. Janet Reno had been the prosecutor in Dade County, Florida, and she had put this drug court model together. The concept is to set up these specialty courts to take away the adversarial nature of proceedings. It becomes a problem-solving court. The court looks at the defendant who has had minor run-ins with the law most likely because the individual is drug addicted. The person may have children who will be lost in the system, which will cost the state resources. The defendant is in obvious need of treatment. That person is not violent, so there is no real danger to the community. The impact of a jail sentence will costs a great deal more to the person, the family, and to society than simply finding a solution to the drug addiction. If successful, the person becomes a contributing citizen rather than a drain on the system.
CCJJ created a standard profile for the drug offender for whom this may be an appropriate approach. Those offenders were required to come before the judge, waive all constitutional rights, take a plea in abeyance in lieu of an agreement to participate in strenuous drug treatment, and submit to regular urinalysis tests. The offender was under strict agreement to stop doing drugs as a condition the plea in abeyance. Judges would often have offenders in the courtroom and would say, “Bailiff, go get a test right now.” If the test came up positive, the judge had the authority to send the offender to jail because that person would be in violation of the agreement.
The offenders had to be accountable on a regular basis to the court. They had the support from the system rather than the long arm of the law tracking them down to put them in jail, and the results were dramatic. The success rate of these people getting clean and keeping their children or getting their children back from child and family services was well beyond expectations. The Governor went to drug court one day to observe. The Governor sat with Camille in the jury box and watched the proceedings. Camille remembers the Governor pulling out his little reporter notepad that he always kept in his pocket. Camille could not resist and looked over the Governor’s shoulder should as he was writing. She remembers him writing with a black Sharpie marker in big letters, “I saw lives change today.”
The next budget announcement he did from the Second District Court. The Governor put in his criminal justice budget a significant amount of funding for drug courts. CCJJ had been trying to fund them out of federal grants with limited success. The goal was to have drug courts available statewide. The goal was not met that budget cycle, but now all eight districts in Utah have drug courts. And, there are juvenile drug courts in addition to adult drug court. Indeed, a juvenile court judge has authority to order the parent of a child that is before them on abuse, neglect, and dependency into a drug court if the parent had an addiction problem.
Other specialty courts followed. DUI courts have followed the same model. There has also been some progress with a mental health court. What is known about mentally ill offenders is that the criminal justice system and the jail setting is not conducive moving them forward or getting them stabilized. Mentally ill inmates decompensate very quickly in that system, they become a much greater burden on the system. But, with a mental health court, where they can benefit from the community and medical support mechanisms including medication, counseling, and housing in addition to being accountable to a judge, then these people have a chance. Otherwise, these mentally ill folks will often languish and find themselves drug addicted and homeless. Camille argued that she has seen people that were cycling through a jail many times each year get clean, stay on their medications, keep jobs, keep apartments, and for the first time, lead somewhat productive lives. Since that time, there has also been a domestic violence court, but that one has not proved as successful.
Justices Hall, Zimmerman, and Durham all deserve much credit for pushing the envelope on the role of the judiciary in some of these programs. Some have worked better than others, but these justices have always had open minds about finding innovative solutions to problems. By way of example Camille stated, “just remember the knock-down, drag-out fights among the judges when they wanted to go to 8 ½ by 11 rather than legal sized paper submissions for briefs and documents. I mean, that gives you a sense of how entrenched they are in the way things are done. I really give [the Justices] a lot of credit for innovating and allowing specialty courts.”
It takes a judge with tremendous commitment to do specialty court work. Success in specialty courts is based on the ability of the judge to connect with the people. A judge cannot be an elitist and deal with people who are mentally ill or who are drug addicted. A judge must have tremendous compassion and patience rather than being judgmental of a person’s problems or lifestyle. The judge must be able, in some way, to relate to the defendants. Judge Fuchs was a perfect example of this kind of judge. He is now retired, but he was always very open about the fact that he served in Vietnam with men that died because of drug addictions. That was his motivation for trying to get people out of that cycle. He had that connection with defendants. The other piece that allows these specialty courts to work is a community that can provide the needed social services.
Ed opined, “In my lifetime, I don’t think it is an exaggeration to say that Governor Leavitt has been the friendliest executive to the court, which is interesting. He’s a non-lawyer, yet I think the courts owe a great debt to him, not only because of whom he appointed to the bench, but because he had foresight to see the 21st century shifts in the courts. And that’s going to be something that will be historical because the specialty courts are exploding around the country, it’s the new wave. And it takes a cooperative, innovative, and progressive governor; otherwise, it really would have inhibited the process.”
Camille reflected on the Governor’s relationship some of the Justices: “I think just his relationship with Chief Justice Zimmerman is fascinating. There probably couldn’t be two more politically diverse people than Justice Zimmerman and Mike Leavitt. And I think they recognized that they had different political views of the world. However, Governor Leavitt was supportive of building the Matheson Courthouse and that was done under Zimmerman’s watch.” There was a 22 million dollar investment in juvenile justice during the same time. Sentencing guidelines never would have gone through without a partnership with the Governor and the Chief Justice. Camille recalls that it “wasn’t always rosy, but there was a mutual respect for the roles that each played and they got along. [The Governor] was always courteous, and I think Justice Zimmerman always felt welcome to bring an issue or a discussion to him. I don’t know that that kind of relationship exists with the current makeup.” Ed mentioned that the Governor understood that a strong judiciary was a key factor in creating stability, and stability creates a solid environment for business, for growth, and for the general welfare of the state. Ed said that he was “always amazed that the legislature didn’t get that because they had a bunch of businessmen on the hill. The Gov., with his economic and business background, appreciated the role of the courts and did not see them, politically, as a threat.”
The relationship of the Supreme Court with the executive and the legislature has changed. Looking back on addresses from Chief Hall, to Chief Zimmerman, to Chief Howe, to Chief Durham, one can see a dramatic change in the tone and substance of those addresses through those years. The addresses over the years have gotten progressively more pointed and accusatory. There is almost a hostility now that did not exist before. And, it is not just hostility toward the legislature; the courts are almost begging for budgetary recognition and legitimacy from the executive branch as well. According to both Camille and Ed, this relationship denotes an imbalance in the division of powers and a failure to recognize fundamental principles of our democracy. Ed concluded, “Again, time will tell, but the Governor, for his part, was definitely an advocate for the judicial branch more than any governor I can remember.”