The President's Perspective
Judicial Performance Evaluation: Looking Ahead, With a Word of Appreciation for Our Volunteers
Article Date: Monday, March 15, 2010
Written By: John R. Wester
In
2000, the General Assembly, enacting NCGS §7A-409.1, assigned to the State
Judicial Council the task of evaluating the performance of our state’s
judiciary. The opening sentence of the statute provides:
The
State Judicial Council, with the assistance of the Director of the
Administrative Office of the Courts, shall recommend to the Chief Justice
performance standards for all courts and all judicial officials and shall
recommend procedures for periodic evaluation to the court system and individual
judicial officials and employees.
Due
to budgetary constraints that have only worsened in the past decade, no
implementation of this assignment moved forward for five years.
Our
Bar Association’s Board of Governors and members of the Administration of
Justice Committee continued to see distinct value in following through with the
mandate that the General Assembly could not fund. There is strong consensus
that voters know very little about the candidates in judicial elections, and
the daily responsibilities of judges demand a maximum effort to enlighten those
who choose them. Armed with solid evaluative information, the voting population
gains interest in judicial candidates and is more likely to cast its votes
based on qualifications. The pertinent statute expresses an intention to this
end in its closing provision: “Summaries of the evaluations of justices and
judges shall be made available to the public….” §7A-409.1.
A
related consideration for evaluating judicial performance is the protection of
an independent judiciary. There are examples throughout the country of judicial
elections turning on one controversial, well-publicized decision. If voters
have a reliable judicial performance evaluation to count on, the prospects
diminish that special interests or political backlash from a controversial
ruling will determine an election.
Fulfilling the Need
In
the fall of 2005, under the leadership of Michael Colombo, then president of
our Association, the Administration of Justice Committee undertook a study of
the viability of a statewide evaluation program for our trial court judges. The
Association adopted its five-year strategic plan, Momentum 2010, during the
presidency of Clark Smith the next year, and that plan included a proposal for
the Association to conduct judicial performance evaluations.
Over
the next two years, the leadership of Neal Ellis and Mike Weddington,
successive chairs of the Administration of Justice Committee, brought this
project into a fully developed program, including the formation of a Judicial
Performance Evaluation Committee. Stepping forward again for a leadership role,
former Chief Justice Rhoda Billings, also a past president of our Association,
agreed to chair the Committee. In October 2006, the North Carolina Conference
of Superior Court Judges passed a resolution supporting the implementation of a
program to evaluate judicial performance in our state.
Since
the late 1970s, judicial performance evaluation programs have taken hold in
some 22 states in the Union. The Judicial
Division of the American Bar Association, the American Judicature Society, the National Center for State Courts, and the
National Conference of State Trial Judges have all endorsed judicial
performance evaluation projects.
In
the spring of 2008, the JPE program went through the first of two pilot study
projects, asking attorneys to complete survey evaluations on all trial court
judges. The second pilot study project, conducted between August 2008 and
February 2009, focused specifically on asking attorneys and court personnel (to
include bailiffs, court reporters, and clerks) to complete survey evaluations
of the trial court judges in Guilford and Cabarrus counties. After completion
of both pilot studies, and upon the recommendation of the JPE Committee and its
consultant,[1]
the Association moved forward with conducting judicial performance evaluations
of those trial court judges whose seats would be up for election in 2010. All
survey responses in all phases of the program were provided anonymously, and
the surveys were password-protected.
Going “Live”
We went
“live” with the project on a statewide basis during the summer of 2009, asking
for an evaluation of all trial court judges standing for election in November
2010. On August 20, Chair Rhoda Billings wrote all of the state’s trial judges
to outline the program, including details of how the survey and rating process
would be carried out. A total of 3,140 responses came in from attorneys appraising
142 incumbent trial court judges. These responses spoke to five elements of
judicial performance: legal ability, integrity and impartiality, communication,
professionalism, and administrative skills. All told, the survey was comprised
of a total of 26 questions under these five categories.
All
of the survey results came to the JPE Committee for its deliberations on
November 12. The JPE Committee agreed that any judge who had received a score
of 3.0 or higher (on a 5-point scale) in the categories of legal ability,
communication, professionalism, and administrative skills, plus a score of 3.5
or higher in the category of integrity and impartiality, would be presumptively
assessed as “qualified.” For any judge who fell below those levels in any
category, the Committee would review all available data in seeking to make a
fair assessment of the judge. Each judge’s individual survey report, along with
the Committee’s proposed recommendation of “qualified” or “not qualified,” was
distributed confidentially to the judges in mid-November 2009.
The
leading take-away from the results is that the vast majority of the judges
evaluated, on both the district and superior court benches, received high to
very high ratings. The survey results also indicated, however, more than a
dozen district and superior court judges for whom the attorney responses resulted
in a preliminary rating of “not qualified.”
When
the Committee met on November 12, one of its goals was to agree on
recommendations for the 2010 incumbent district and superior court judges as
“qualified” or “not qualified” for reelection. Integral to this process was an
opportunity for appeal, those appeals to be conducted in December and affording
the opportunity for a judge to question his or her “not qualified” preliminary
rating. Following the appeals, the full Committee was set to reconvene in early
January 2010 to make its final recommendations on all the judges. The Committee
was then to make available to the public information on each judge, including
the “qualified” or “not qualified” recommendation, factual information on the
judge’s education and bench experience, a narrative explaining the highlights
of how the judge scored in the survey, and a bar graph representing the judge’s
average score in each of the five categories.
No “Pilot” For This
In
the first pilot project, conducted in 2008 and covering all judges statewide,
our Association received nearly 10,000 completed evaluations. For the “real”
project, however, the Association received only 3,140 responses. Although the
first pilot project covered all judges, and thus was not restricted to those
incumbents for the 2010 elections, the drop in completed survey responses
gained the full attention of the Committee and the Association leadership.
One reason
for the lower response in the 2009 survey might have been that we asked the attorneys
to rate only those judges before whom they had appeared in the last two years. This
was in part so that a judge who had received negative comments or ratings in
the pilot survey would not receive low ratings that did not reflect the judge’s
efforts to improve following receipt of the pilot survey results. This is
consistent with the way surveys are conducted in other states, but it probably
does reduce the number of attorneys who qualify. Also, there was not a
two-year period between the pilot survey, conducted in 2008, and the 2009
survey.
In
the months to come, the Committee and Bar Association leadership will evaluate
the various reasons that could account for this drop-off in the number of
responses. What came home with force to the Committee was whether it was fair
or equitable to release a “not qualified” rating to the public when some judges
had received as few as 18 to 20 responses. Professionals fluent in the study of
statistics provide thoughtful instruction on how to interpret survey response
numbers, including the validity of low responses. The JPE Committee and Bar
leadership have borne in mind, however, that we are engaging in the evaluation
of a process that will influence, and perhaps contribute to concluding, a
career of service on the bench.
Deliberations
on the survey results continued through a collaboration with leaders of the
judicial branch. On December 11, Chair Rhoda Billings and I met with Chief
Justice Sarah Parker; Chief Judge John Martin; Judge John Smith, Director of
the Administrative Office of the Courts; Judge Joseph Turner, President of the
North Carolina Association of District Court Judges; and Judge Allen Cobb,
President of the North Carolina Conference of Superior Court Judges. From our
Bar Association staff, Allan Head, David Bohm, and Kimberly Crouch also
participated.
Former
Chief Justice Billings laid out the full JPE program during this meeting,
including the history of the project, the design of the survey process, and the
present results. At the end of these deliberations, we have decided against
making the survey information available to the public, including any ratings of
the judges in the project survey. Bottom line – the number of responses was too
far below what we believe adequate for us and the public to put full faith in
the results. Because of this, there were no appeals for judges who received
“not qualified” preliminary ratings, and thus there was no final rating of “not
qualified” for any judge. In addition, we have requested that all judges hold
their preliminary ratings and survey results in confidence.
Use of Survey Results
We
are confident that the information secured during this survey will find an
excellent use. First of all, a leading goal of the JPE project is
self-improvement. In the words of one judge: “The benefits are personal to the
judge’s continued professional development – it’s the only way we get to see
ourselves as others see us.”
Related
to this sentiment, Chief Judge Martin, Chairman of the Judicial Standards
Commission, identifies significant value in the survey information. His
Commission can use the information to correlate complaints it receives,
especially to discern if the complaint is indicative of a pattern of conduct
that the survey results suggested, or is an aberration so different from the
results that it lacks credibility. Likewise, Judicial Standards can use the
survey for broader purposes, including to encourage the improvement of demeanor
and judicial temperament. One judge, writing the Bar Association after receiving
his survey results, may have reflected Judge Martin’s view: “You have secured
my full attention.”
A
linchpin of the JPE project is the assurance of anonymity for comments from
attorneys. This concept finds expression in NCGS §7A-408.1; the General Assembly
provided that the data collected in producing the evaluations “shall not be a
public record.” The Bar Association continues its pledge in this regard and
will maintain all of the survey information at the Bar Center.
The individual comments by attorneys and others completing the surveys will not
be released to the public, nor will they bear any indication of their source.
Looking Ahead
No
element is more important to the administration of justice than the quality of
our judges. We are fortunate to have the benefit of many public-spirited
lawyers of high ability who have offered themselves for service on the bench. They
do not receive compensation commensurate with either their contribution to our
society or the responsibility embedded in their decisions. Likewise and despite
a statute now a decade old, no project, no system exists at this time to
provide any of our judges with objective appraisals by those who observe their
performance first-hand. This limits their opportunity for self-awareness and
self-improvement, just as it limits the public’s ability to know for whom to
vote.
The
JPE project aims at all of the above considerations. Judges will learn how to
improve their performance, the public will gain confidence in its selection and
retention of the best judges, and a heightened sense of accountability will
follow. Combined with enhanced efforts to demonstrate the gravity of judicial
office, public sentiment should build to raise compensation for our judges.
In a
sidebar to this column, you will find the names and hometowns of the volunteers
who serve on our JPE Committee. In addition to Rhoda Billings, six retired district
and superior court judges, seven retired lawyers, and seven laypersons
contributed hundreds of hours to this cause. We owe all of them our heartfelt
appreciation.
We
also owe ourselves a thoughtful look at the best course ahead for evaluating
judicial performance. I encourage you to write me and/or the members of the
Committee to provide your ideas.
All
best wishes for the new year to each of you.
[1]
The JPE Committee engaged Dr. David Brody of Washington State
University. Dr. Brody has
extensive experience designing and conducting performance evaluations of
judges in several states. In addition, he serves as the ABA's consultant on judicial performance evaluation and wrote the Judicial Performance Evaluation Guidelines for the ABA's Judicial Division.
Last Update: Monday, January 11, 2010