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(1) Beginning with the 2012 judicial retention elections, the commission shall prepare a performance evaluation for:
(a) each judge in the third and fifth year of the judge's term if the judge is not a justice of the Supreme Court; and
(b) each justice of the Utah Supreme Court in the third, seventh, and ninth year of the justice's term.
(2) Except as provided in Subsection (3), the performance evaluation for a judge under Subsection (1) shall consider only the following information but shall give primary emphasis to the information that is gathered and relates to the performance of the judge during the period subsequent to the last judicial retention election of that judge or if the judge has not had a judicial retention election, during the period applicable to the first judicial retention election:
(a) the results of the judge's most recent judicial performance survey that is conducted by a third party in accordance with Section 78A-12-204;
(b) information concerning the judge's compliance with minimum performance standards established in accordance with Section 78A-12-205;
(c) courtroom observation;
(d) the judge's judicial disciplinary record, if any;
(e) public comment solicited by the commission;
(f) information from an earlier judicial performance evaluation concerning the judge except that the commission shall give primary emphasis to information gathered subsequent to the last judicial retention election; and
(g) any other factor that the commission:
(i) considers relevant to evaluating the judge's performance for the purpose of a retention election; and
(ii) establishes by rule.
(3) The commission shall make rules concerning the conduct of courtroom observation under Subsection (2), which shall include the following:
(a) an indication of who may perform the courtroom observation;
(b) a determination of whether the courtroom observation shall be made in person or may be made by electronic means; and
(c) a list of principles and standards used to evaluate the behavior observed.
(4)
(a) As part of the evaluation conducted under this section, the commission shall determine whether to recommend that the voters retain the judge.
(b)
(i) If a judge meets the minimum performance standards established in accordance with Section 78A-12-205, there is a rebuttable presumption that the commission will recommend the voters retain the judge.
(ii) If a judge fails to meet the minimum performance standards established in accordance with Section 78A-12-205, there is a rebuttable presumption that the commission will recommend the voters not retain the judge.
(c) The commission may elect to make no recommendation on whether the voters should retain a judge if the commission determines that the information concerning the judge is insufficient to make a recommendation.
(d)
(i) If the commission deviates from a presumption for or against recommending the voters retain a judge or elects to make no recommendation on whether the voters should retain a judge, the commission shall provide a detailed explanation of the reason for that deviation or election in the commission's report under Section 78A-12-206.
(ii) If the commission makes no recommendation because of a tie vote, the commission shall note that fact in the commission's report.
(5)
(a) The commission shall allow a judge who is the subject of a judicial performance retention evaluation and who has not passed one or more of the minimum performance standards on the retention evaluation to appear and speak at any commission meeting during which the judge's judicial performance evaluation is considered.
(b) The commission may invite any judge to appear before the commission to discuss concerns about the judge's judicial performance.
(c)
(i) The commission may meet in a closed meeting to discuss a judge's judicial performance evaluation by complying with Title 52, Chapter 4, Open and Public Meetings Act.
(ii) The commission may meet in an electronic meeting by complying with Title 52, Chapter 4, Open and Public Meetings Act.
(d) Any record of an individual commissioner's vote on whether to recommend that the voters retain a judge is a protected record under Title 63G, Chapter 2, Government Records Access and Management Act.
(e)
(i) A member of the commission, including a member of the Utah State Bar, may not be disqualified from voting on whether to recommend that the voters retain a judge solely because the member appears before the judge as an attorney, a fact witness, or an expert, so long as the member is not a litigant in a case pending before the judge.
(ii) Notwithstanding Subsection (5)(e)(i), a member of the commission shall disclose any conflicts of interest with the judge being reviewed to the other members of the commission before the deliberation and vote of whether to recommend that a judge be retained or not be retained.
(iii) Information disclosed under this Subsection (5)(e) is a protected record under Title 63G, Chapter 2, Government Records Access and Management Act.
(f) The commission may only disclose the final commission vote on whether or not to recommend that the voters retain a judge.
(6)
(a) If the Utah Supreme Court issues a public sanction of a judge after the commission makes a decision on whether to recommend the judge for retention, but before the publication of the voter information pamphlet in accordance with Section 20A-7-702, the commission may elect to reconsider the commission's recommendation.
(b) The commission shall invite the judge described in Subsection (6)(a) to appear before the commission during a closed meeting for the purpose of reconsidering the commission's recommendation.
(c) The judge described in Subsection (6)(a) may provide a written statement, not to exceed 100 words, that shall be included in the judge's evaluation report.
(d) The commission shall include in the judge's evaluation report:
(i) the date of the reconsideration;
(ii) any change in the decision of whether to recommend that the voters retain the judge; and
(iii) a brief statement explaining the reconsideration.
(e) The commission shall submit revisions to the judge's evaluation report to the lieutenant governor by no later than August 31 of a regular general election year for publication in the voter information pamphlet, and publish the revisions on the commission's website, and through any other means the commission considers appropriate and within budgetary constraints.
(7)
(a) The commission shall compile a midterm report of the commission's judicial performance evaluation of a judge.
(b) The midterm report of a judicial performance evaluation shall include information that the commission considers appropriate for purposes of judicial self-improvement.
(c) The report shall be provided to the evaluated judge, the presiding judge of the district in which the evaluated judge serves, and the Judicial Council. If the evaluated judge is the presiding judge, the midterm report shall be provided to the chair of the board of judges for the court level on which the evaluated judge serves.
(d)
(i) The commission may provide a partial midterm evaluation to a judge whose appointment date precludes the collection of complete midterm evaluation data.
(ii) For a newly appointed judge, a midterm evaluation is considered partial when the midterm evaluation is missing a respondent group, including attorneys, court staff, court room observers, or intercept survey respondents.
(iii) A judge who receives partial midterm evaluation data may receive a statement in acknowledgment of that fact on the judge's voter information pamphlet page.
(iv) On or before the beginning of the retention evaluation cycle, the commission shall inform the Judicial Council of the name of any judge who receives a partial midterm evaluation.
(8) The commission shall identify a judge whose midterm evaluation:
(a) fails to meet minimum performance standards in accordance with Section 78A-12-205 or as established by rule; or
(b) otherwise demonstrates to the commission that the judge's performance would be of such concern if the performance occurred in a retention evaluation that the judge would be invited to appear before the commission in accordance with Subsection (5)(b).
(9) The commission may make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, as necessary to administer the evaluation required by this section.