Help us improve in just 2 minutes—share your thoughts in our reader survey.
Evaluating Appellate Judges: Preserving Integrity, Maintaining Accountability conference (2011)
August 16, 2011
by: Katy Farrell
On August 11 and 12, the Institute for the Advancement of the American Legal System (IAALS) sponsored a conference at the University of Denver, entitled "Evaluating Appellate Judges: Preserving Integrity, Maintaining Accountability." The conference focused on a wide-range of issues affecting judicial performance evaluations. Judgepedia was represented at the event and tweeted live during the panel discussions.
The Institute was formed in 2006 and at its head is former Colorado Supreme Court Justice Rebecca Kourlis. Justice Kourlis opened the conference with remarks and announced that this was the "first of its kind conference on evaluating appellate judges." All told, judges or justices from six states participated in panel discussions, while nonprofits and other representatives from across the nation also joined in.
In the first panel, Dean John Broderick, Judge Russell Carparelli and law professor Penelope Pether discussed the differences between appellate and trial court judges and how evaluations differ for each.
As outlined by Russell Carparelli, the differences are:
- The trial court judge listens and reacts quickly to a large amount of information, all while interacting with a large section of the public.
- Appellate court judges primarily function in "error correction," reviewing decisions and interpretations of the law. Furthermore, judges on the appellate courts leave behind a record of opinions based solely on the facts presented in a case. The strength of these opinions is determined by the public's ability to understand the case made for the outcome. These judges do not conduct any outside research and are therefore bound in decision making based on briefs submitted in a case.
There were several areas for improvement recommended by all three panelists. These address not just judicial performance, but also that of the court staff.
Those areas are:
- Staff screening of cases leads to inconsistent administration of justice;
- Inadequate training of court staff;
- Tendency of some judges to sign opinions without reading the underlying documents;
- Inadequate or non-existent explanations for opinions;
- Unpublished opinions that are not made accessible to the public; and
- Toning down the legalese in opinions to make rulings more easily understandable to public.
The last factor was repeated as an issue throughout the conference. Today, more than ever before, a larger number of citizens attempt to access opinions online or represent themselves in court.
Addressing the notion of judicial performance evaluations, Broderick shared his experience with survey-based evaluations. These were conducted during his tenure as Chief Justice of the New Hampshire Supreme Court and he referred to this program as one of the finest things he did as Chief Justice.
All panel members were proponents for improving transparency of the judicial branch and creating standards for evaluating judges. Broderick repeatedly mentioned that in this day and age, people no longer respect authority solely because it exists. Instead, judges must earn the authority vested in them with quality work.
For the second panel, the IAALS invited three individuals outside of the state judiciaries. Law Professor Mitu Gulati, Matt Arnold from Clear the Bench Colorado (CTBC) and Rafael Gomez, from Robe Probe offered their ideas for improving current methods of judicial performance evaluations. Each panelist had an opportunity to speak for a fifteen-minute presentation.
Professor Gulati presented a paper he co-authored, called "'Not that Smart': Sonia Sotomayor and the Construction of Merit." In the paper, the authors used the example Sonia Sotomayor's 2009 nomination to the Supreme Court of the United States. When nominated, many critics opposed the selection of Sotomayor, stating that she was not fit to serve on the high court. Using quantifiable data, Gulati proved her high level of citations, lack of reversals and number of opinions written. The theme of his presentation was the importance of relying on statistical information as opposed to opinion based methods of evaluation.
Gomez, who serves as legal counsel for Robe Probe, focused on the notion of evaluating opinions through a strict set of criteria. Areas on which to evaluate could be: brevity of opinions, logical structure of arguments, clarity, references to precedent, close critique on the overruling of precedent, political pressure of precedent, and how narrowly a statute is interpreted. These concepts would require retired judges, law professors and appellate lawyers participate in evaluations.
Arnold, the founder of CTBC, pointed out ways in which the current judicial performance evaluation in Colorado was lacking. He took issue with the idea of political appointment of the evaluators, survey methodology, unpublished opinions by the commission, and 100 percent retention recommendation for appellate judges. In turn, he proposed a list of ways to improve evaluation procedures, which closely mirror those of his organization's.
In the last panel of the day, Professor Jordan Singer discussed a study of judicial voting behaviors to provide a sociological basis for election results. Justice Dana Fabe and journalist Grant Schulte used examples from the 2010 retention elections in Alaska and Iowa to demonstrate the relative power of special interest groups during an election cycle.
Concerned that the perspective of voters gets lost in the study of judicial selections, Professor Singer attempted to explain how and why people vote the way they do. He has identified two main tendencies: one, the public appreciates the idea of the court as an institution and respects sitting judges and two, procedural fairness is the underlying aspect of respect for the courts. He contends that specific outcomes aren't the first priority of a voter, but instead an understanding of accountability on the bench determines a level of trust in a court or judge.
Justice Fabe was retained in 2010 with 53.2 percent of the vote. Prior to the election, she was recommended for retention by the Alaska Judicial Council. Roughly three weeks before the November election, a group began advocating for voters to vote against Fabe's retention. The group made that recommendation based on disagreement with decisions in which the justice had participated. Later, the group admitted that the timing of its campaign was designed to not allow Fabe to respond.
Utilizing a website and Facebook page, a group created by the justice's friends and former law clerks fought back against the "Vote No on Fabe" group. The major weapon of Fabe's response was the justice's evaluation from the judicial council. Repeatedly, editorials opposing Fabe's retention were stuck in the position of explaining their view while contending with a recommendation for retention from the state commission.
Three justices on the Iowa Supreme Court were not as well equipped to handle a special interest group's assertion that they not be retained. In 2010, Marsha Ternus, David Baker and Michael Streit were not retained, due in large part to opposition over the ruling in Varnum v. Brien. With no ability to discuss certain opinions in a campaign and no judicial performance evaluation commission to rely upon, the justices were removed from office by a majority of voters. Schulte explained the history of opposition to retention for specific judges in Iowa (including that of Jeffrey A. Neary in 2004) and also the recent history leading up to the 2010 election.
Schulte described the scene in Iowa but drew a larger point on activist groups using the court system to make substantial societal changes. Contending that gay couples purposely sought marriage licenses in order to challenge the government in court, he also commented on the inverse relationship between a difficulty in amending a state constitution and retention of judges. This combined situation created fertile ground for a battle in Iowa last year.
One idea repeated throughout these discussions was the true motivation of special interest groups: to send a message to other judges. The ensuing conversations over this struck a chord to the actual debate happening in our country right now. Are special interest groups attacking judges up for retention by focusing on specific rulings instead of procedural fairness and the rule of law? Or are activist judges ignoring the will of the majority to legislate from the bench? This dichotomy was alluded to throughout the conference, although the majority of participants seemed to identify with the former interpretation.
The most recent retention elections set the stage for the keynote address by Chief Justice Mark Cady. The case that eventually caused the non retention of his colleagues was actually authored by Cady, though it was a unanimous decision. The theme of Justice Cady's speech was the weakness of a society that refuses to contemplate the nuances of important societal issues. Retelling the history of landmark court decisions in the United States, he repeated the mantra "We know better" as a call to action for those listening.
Cady also identified a list of reasons explaining why those who speak the loudest create the tone in our society. They are:
- An erosion of public confidence in government;
- Misunderstanding by the public of the role of courts and judges;
- The ease of disseminating misinformation in today's world;
- Increase in caseloads and output by judges;
- Failure of judges to participate in public outreach or comment on given situtations;
- Political operatives that attack courts in order to increase turnout in other races;
- Government leaders advocating for removing judges that ignore public opinions; and
- Human nature, which is naturally resistant to change, which keeps society from moving forward.
Day two started by getting back to evaluating judicial performance. During the first panel, four participants discussed current and ideal ways to evaluate judges.
The IAALS has created a sample for evaluating judicial performance that focuses on five areas: surveying attorneys that appear before a court; surveying district court judges and court staff; commission review of opinions; courtroom oberservation by commission; and quantifiable judicial statistics. Judge Steve Leben, Judge Richard Gabriel, former district judge Anthony Schofield and Dan Hall, of the National Center for the State Courts, worked off of this model.
Steve Leben, of the Kansas Court of Appeals, identified the need for substantial judicial evaluations, based on the different views of the court by judges and the public. He said that empathy was an important quality for a judge to possess, along with a positive temperament, neutrality, respect and trust. Members of the public that appear in court feel satisfied with the service of the judge if these conditions are met.
Richard Gabriel, judge on the Colorado Court of Appeals, supported the work of his own state's judicial performance evaluation commission. He believes that substantial analysis of appellate opinions, without scores given, are more useful to a voter since those are results they can trust. Also, opinions of the general public should not be included in judicial evaluations.
Anthony Schofield, Vice Chair of the Utah Judicial Performance Evaluation Commission, reluctantly got on board with the idea of courtroom observation by trained members of the public. Because of the success of this program in its inaugural year, the commission is currently utilizing this method of evaluation for all judges standing for retention in Utah in 2012.
Dan Hall, from the National Center for the State Courts, helped to identify six areas of performance evaluation for judges. Those are: a survey of constituents, time from case filing to disposition; clearance rates of cases; age of active pending caseload; employee satisfaction; and reliability of case files. This program is being used in four courts and intends to measure all aspects of judicial performance. One issue taken with these areas of comparison was the inability of a court to speed up the administration of justice as judiciaries around the nation lose funding and staff.
In the next panel, three individuals at different stages of judicial performance evaluations participated. Judge Jacqueline Griffin, of the Florida Fifth District Court of Appeal, provided a lively opposition to judicial performance evaluations. In her state, judges are not evaluated, nor does she support the idea. One major aspect of that is the culture of the judiciary in Florida. In the large statewide court system, political influence of appointed members of the nominating commission hold sway. She contends that as political appointees, commission members are chosen based on their willingness to appoint ideologically pure judges, not those best qualified. There is no objective way to evaluate those who do the evaluating, which could lead to a crisis of respectability.
| Proposed methods of judicial performance evaluations |
|---|
|
Next to speak was Sarah Walker, of the Minnesota Coalition for Impartial Justice. The group she represents is attempting to alter the method of judicial selection in the state. While public support for the proposal of moving toward a Commission-selection, political appointment method of judicial selection varies, the one part of the proposed measure that everyone seems to agrees on is mandatory public performance evaluations.
As that group attempts to get a process started, the North Carolina Bar Association (NCBA) is wrapping up its most recent survey-based evaluations. Represented by Nancy Norelli, the NCBA had much success with its evaluations this year. All told, they received more than 27,000 evaluation forms in response. Results from the surveys will be released to the public in January 2012, prior to the filing deadlines for the 2012 judicial elections.
In the last panel, Justice Fabe and Jane Howell discussed the relevance of evaluations for judges standing in retention elections. Fabe spoke more about her personal experience with retention in 2010, while Howell focused on the publicity and methods utilized by the Colorado Office of Judicial Performance Evaluation last year.
The majority of panelists agreed that it is a responsibility of the state judicial systems to conduct judicial performance evaluations. With a variety of options, no overall consensus as to the most effective method was reached during the conference. Should the public be involved? Should opinions or statistical data be considered? Is courtroom observation an integral part of evaluations? How can states afford to allocate resources for such evaluations at this time? These questions and more were debated and answered to different degrees.
All in all, panelists from thirteen states represented multiple ideas for the future of judicial performance evaluations. With such support for evaluations, the Institute for the Advancement of the American Legal System will likely play a role in shaping future methods across the United States. As Executive Director Rebecca Kourlis said, "Judges have a responsibility to maintain a big tent to include divergent viewpoints." Ultimately, a trusted moderator is needed to create something from all those ideas.
