September 2002 

A Report on the Washington State Judicial-Performance Evaluation Pilot Project

The quality of our justice in America patently hinges, in large measure, on the quality of our judges.1 The human dimension judges with diverse judicial philosophies and personalities bring to the bench is an asset to the American system of justice. It is the public's faith in the wisdom, common sense and integrity of individual judges that is the backbone of the judiciary. Unfortunately, these very qualities can prove a liability when it comes to judicial elections.

In addition to Washington, 30 states use popular elections to select at least a portion of their judiciary. While selecting judges through popular elections does make a judge accountable to the people, it also presents many dangers. It can make judges shy away from rendering decisions and acting as they would without the presence of electoral pressures. Making anti-majoritarian decisions, developing innovative practices and procedures, and standing by one's beliefs — qualities we want from our judges — can make a judge liable to electoral challenges based on unfair characterization, innuendo and attack by special interests. This fact, when coupled with the dearth of information provided to voters in judicial elections, has been cause of great concern across the nation for many years.

In an effort to combat this situation, since the 1970s, states around the nation have been developing and implementing programs to systematically evaluate the performance of both appellate and trial-court judges. These programs, which are growing in use in states that require judges to stand for retention elections, are state-sponsored and administered, and are designed not only to offer the public information for use in voting in judicial elections, but, more importantly, to provide feedback to sitting judges for self-evaluation and improvement.

Despite its progressiveness in many areas, Washington does not operate a government-sponsored judicial-performance evaluation (JPE) program. In 1999, the Washington Chapter of the American Judicature Society established a committee to design and test a judicial-performance evaluation program for superior court judges in Washington that would foster judicial self-improvement and provide information to voters in judicial elections. This article discusses the results of this pilot study.

The first state-sponsored judicial-performance evaluation program was established in Alaska in 1975. In 1985, the American Bar Association (ABA) developed a set of proposed guidelines for the implementation and operation of such programs. Since that time, a number of states have instituted similar programs with varying components and purposes. While such programs are relatively new, independent research has shown several of them serve the purpose for which they were designed and do not have a negative impact on judicial independence or behavior.

Shortly after the ABA developed its JPE guidelines, discussion began in Washington about the development of a JPE program. In 1985, Washington's Judicial Performance Evaluation Task Force was established with Justice Robert Utter serving as chair. Over the next several years, the task force designed and field-tested evaluation instruments in district, municipal and superior courts. In the end, the District and Municipal Court Judges' Association and the Superior Court Judges' Association decided against implementation of the program due to concerns about confidentiality.

In 1995, the Walsh Commission was established with the charge to examine and suggest improvements to the judicial-selection system in Washington. Among the nine recommendations made by the commission was the recommendation that "[a] process for collecting and publishing information about judicial performance shall be created under the authority of the Supreme Court."2 Since the release of the Walsh Commission Final Report in 1996, there has been minimal, if any, state action with regard to the development of a JPE program.

The JPE program operationalized in the pilot study was predicated on two aims: fostering judicial self-improvement; and providing relevant, reliable and unbiased information to the public for use in judicial elections.

A primary goal of all judicial-performance evaluation programs is to foster self-improvement of individual judges. Periodic review and evaluation of a judge's effectiveness can provide information that offers the judge insight into his or her performance and how others perceive it. JPE programs are uniquely able to accomplish this for several reasons:

• Information can be obtained from a variety of relevant broadly based sources.
• Information obtained is anonymous.
• Information is solicited only from people who appeared before the judge in a scientifically reliable manner that facilitates trust and acceptance of the information obtained.

Having multiple sources of information provides greater richness in feedback to the evaluee than single-source performance evaluations or bar polls. In the case of evaluations of judges, obtaining critiques from three disparate groups of observers — lawyers, witnesses and jurors — provides varied information for judges to consider. When conducted with assured anonymity, judges can be told of both positive and negative perceptions and observations that they would be unlikely to hear otherwise.

The second goal of the program is to provide voters with reliable information on a judge's performance that can be used in judicial elections. While the Washington State Constitution provides for the election of judges, less than a third of eligible voters take part in voting for them. This low participation is present nationwide in judicial elections. Research has consistently shown that the chief reason behind the low rate of participation is the lack of relevant information possessed by voters regarding candidates for judgeships. Sadly, voters in most judicial elections are provided very little information about judicial candidates.3 Moreover, the information provided to voters during a campaign is often biased, distorted, based on isolated cases or issues, or funded by special-interest groups.

The lack of relevant information impacts judicial elections in several ways. When at the polls, voters in concurrent nonjudicial contests who lack knowledge about judicial candidates are much less likely to vote in judicial elections.4 The end result is that a small minority of the electorate, many of whom do not have a rational basis for their vote, often decides contested judicial races.5 Moreover, the less informed voters are, the more susceptible they are to deceptive and/or negative campaigning.6 This reality discourages a sizable number of well-qualified, exemplary attorneys from entering the judiciary.

Just as importantly, voters who do cast votes but lack relevant information upon which to base their votes often vote on the basis of inappropriate cues such as a candidate's name, ethnicity, gender or position on the ballot.7 So, while popular elections would seem to further the democratic ideal, it has been astutely noted, "…democracy is a poor name for a system in which voters routinely vote for people they know nothing about."8 

Compounding the problems associated with judicial elections is the role the judiciary has in the American system of government. The judiciary was designed by the founding fathers largely to protect individuals from oppression by the government and improper majoritarian demands. Consequently, it is routinely the duty of judges to render decisions contrary to the will of the people. Unfortunately, opportunistic politicians, potential or actual electoral challengers, and special-interest groups can use such decisions to mount an effective electoral challenge to a sitting judge. That is exactly what has been happening (increasingly so) over the last two decades.

Proponents of JPE programs contend that sanctioned evaluations of judges actually increase judicial independence. They argue "judicial independence is the independence of judges in their judicial capacity from control by inappropriate external forces, pressures, or threats."9 Consequently, providing voters with relevant, unbiased information about a judge's performance derived from both attorneys and laypersons defuses negative campaign tactics. As stated in a recent law-review article by former Tennessee Supreme Court Justice Penny White (a notorious victim of negative campaign tactics which led to her defeat in the 1996 elections),10  "…[m]uch of the success of those who seek to destroy judicial independence results from the lack of available information upon which to base one's decisions in judicial elections."11 

Moreover, voters surveyed in states that use JPE programs to inform the public reported the information given them to be helpful in voting in retention elections. They also stated they would be more likely to vote in a judicial election because of the information provided.12 It is believed that the same would be true of JPE programs operating in states with direct elections.

Ten superior court judges volunteered to participate in the pilot study. The judges were selected on the basis of the location and size (based on population and number of superior court judges) of the jurisdiction in which they sit, the length of time they have served on the superior court bench, and their gender. Demographically, the judges looked as follows:

• 4 judges from large counties
• 4 judges from mid-sized counties
• 2 judges from small counties
• 6 judges from west of the Cascades
• 4 judges from east of the Cascades
• 5 male judges
• 5 female judges

Time on the bench ranged from six months to over 20 years.

Judges were guaranteed anonymity with regard to evaluation results, and only the author knows evaluation results and feedback for each participating judge.

Judges were evaluated via written surveys distributed to attorneys, witnesses and jurors who appeared before the judge during the evaluation period. The surveys used multiple questions to measure the respondent's perception of the judge's actions in four (witnesses and jurors) or five (attorneys) areas: communication skills, legal ability, demeanor, administrative skills, and integrity.

Surveys were mailed to 588 attorneys who had appeared before a participating judge during the designated time period. Of the 588 attorneys, 317 (53.9 percent) returned completed questionnaires. The demographic breakdown of attorney respondents, as shown at below, is not dissimilar to the membership of the WSBA.

Gender 

• Male 76%

Race 

• White 94%

Ethnicity 

• Non-Hispanic 99%

Years in Practice 

• 1-5 16%
• 6-10 20%
• 11-20 36%
• Over 20 29%
• Range 1-50 years
• Average 15.63 years

Practice Area 

• Criminal defense 18%
• Prosecution 13%
• Private civil matters 65%
• Other 4%

Type of Office 

• Sole practitioner 28%
• Private firm, 2-5 attorneys 23%
• Private firm, more than 5 attorneys 22%
• Prosecutor/AG office 15%
• Public defense office 12%

While overall the attorneys viewed the judges positively, significant variance was exhibited on two dimensions. Scores in terms of individual questions and categories varied among judges. Additionally, ratings given for individual judges for specific questions and categories varied significantly (see below). This result indicates that the survey instrument was specific enough to measure different opinions on specific areas of interest. In terms of judicial self-improvement and the utility of the results for the judges, this variance, which indicates the presence of judge-specific information, is critical.

In addition to attorneys, 177 jurors and 66 witnesses returned completed questionnaires.

Both jurors and witnesses viewed the judges significantly better than did attorneys. In fact, jurors and witnesses had uniformly positive responses to judges' performances, with overall ratings hovering above 4.7 on the 1-5 scale.

While quantitative information is an important aspect of a performance evaluation, from the perspective of the judge being evaluated, written comments provide the best information for judicial self-improvement. In all, 95 attorneys, 54 jurors and 21 witnesses provided written comments.

Roughly 75 percent of the comments from attorneys were positive and laudatory, and 25 percent could be characterized as "constructively critical." It is these critical comments that are likely to be the most beneficial for the individual judges being evaluated. Two examples of such comments are:

• Judge's knowledge and legal skills are impressive, but his/her people skills need improvement. His/her control of the courtroom would be no less effective if he/she would speak louder. The control technique of almost whispering is both annoying and insulting.
• He/she does not treat lawyers with as much respect as other judges do. He/she clearly sees lawyers as lower in the hierarchy of the court and treats them that way.

Although such comments are clearly critical, they also address items that, if true, are 1) not the type of information an attorney would feel comfortable conveying to a judge; 2) items the judge should be made aware of; and 3) items which can be addressed, if necessary, by the judge.

Not surprisingly, the comments provided by jurors and witnesses were overwhelmingly positive. They do, however, provide insight into the important role a judge plays in shaping the community's attitude about the state's judicial system as illustrated by the following comments:

• Felt my time spent as a juror was very worthwhile.
• Judge maintained a level of personal (as opposed to aloof) communication with the jury. We of the jury became very much a part of our judicial system and were made aware of our importance to the proceedings.
• This was definitely one of the most positive and interesting experiences of my life. I have a new respect for __________ County Superior Court.

Witnesses, several of whom were also litigants, submitted similar comments:

• I was very impressed with his/her preparation, intelligence, and grasp of the facts. He/she seemed to have a good knowledge of the law and was willing to check anything he/she wasn't sure about. After several discouraging experiences in family court with commissioners, the judge was a welcome change. He/she restored my faith in the court system as he/she followed the rules and gave each party time to have a say. I trusted him/her to make a fair decision based on the facts and the law.
• The judge was very professional yet understanding and compassionate toward the jurors and people involved in the case. It was a pleasure to be a part of the judicial system in his/her courtroom.

When these attitudes are held by lay people, even when generated on a case-by-case basis during limited dealings with a court, the way the court system and attorneys are viewed by society as a whole is likely to be enhanced as well.

In assessing an evaluation program, it is important to look at whether the program's participants accept the program's purpose and design and are satisfied with the information obtained. To do this, participating judges were provided with tabulations of responses as well as written comments provided by respondents who participated in their evaluation. Additionally, each judge was given a one-page questionnaire to facilitate the receipt of feedback from the judges regarding the pilot project. The observations of the seven judges who completed the questionnaires were predominantly positive.

Each judge stated that the JPE process was beneficial to him or her. Their sentiment, in general, was that:

• the information obtained is useful;
• the procedure is a good vehicle to let litigants, witnesses and jurors "vent" and give feedback to the system; and
• the information given to the judges had not previously been available.

The judges did have several insightful suggestions for improving the JPE process used in this study. Two of these items are:

• Provide more specific information about negative perceptions by respondent. For example, if a number of respondents said that a judge treated people unfairly, provide information about whether this is based on race, gender, income, etc.
• Provide space for comments after each section to encourage more written feedback.

The positive response of the Washington judges is similar to the response of judges in other states with evaluation programs similar to the one used in the pilot study.

Several months after the completion of data collection, participating judges were provided with tabulations of responses and written comments pertaining to them. Judges were also given a one-page questionnaire asking them to provide feedback to the committee about the pilot project. Of the seven judges who returned the questionnaire, their comments were extremely positive. (Please contact the author at brody@wsu.edu for a copy of the report.)

While a great deal was learned from the study, there are a number of relevant items the study did not address and are therefore not discussed in this report. The project did not consider the means currently used to evaluate judges and inform voters that are conducted at the county level. Such programs serve a function, and were not considered in evaluating the pilot program. Additionally, while the program tested means of obtaining information that could be used by voters in judicial elections, it does not address or consider the means and form by which such information would be communicated.

That said, the design, implementation and analysis of the judicial-performance evaluation pilot project produced an abundance of useful information for attorneys, judges, scholars and policymakers to consider. Highlights of what was learned include:

• Attorneys view judicial performance differently than witnesses and jurors.
• Attorneys across the state are willing to participate in an evaluation program in a meaningful manner.
• Judges received information from attorneys, jurors and witnesses that they otherwise would not have.
• Judges found the information informative and helpful.

In short, we learned that judges who participated in the JPE program believe it was beneficial. It is hoped that the pilot project will provide citizens and policy-makers of the state substantive material to consider in looking at maintaining the excellence of the Washington judiciary. 

NOTES

1. Special commission of judicial performance, American Bar Association Guidelines for the Evaluation of Judicial Performance, at I (1985).

2. Walsh Commission, Walsh Commission Final Report: The People Shall Judge, Recommendation 3 (1996).

3. Marie Hojnacki and Lawrence Baum, Choosing Judicial Candidates: How Voters Explain Their Decisions, 75 Judicature 300 (April/May 1992).

4. Nicholas P. Lovrich, John C. Pierce and Charles H. Sheldon, Citizen Knowledge and Voting in Judicial Elections, 73 Judicature 28 (June/July 1989).

5. Peter Webster, Selection and Retention of Judges: Is There One "Best" Method? 23 Fla.St.U. L.Rev 1, 24 (1995).

6. Robert L. Brown, From Whence Cometh Our State Appellate Judges: Popular Election Versus the Missouri Plan, 20 U. Ark. Little Rock L.J. 313 (1998).

7. Phillip Dubois, Voting Cues in Nonpartisan Trial Court Elections: A Multivariate Assessment, 18 Law & Soc'y Rev. 395 (1984).

8. Joel Achenbach, Why Reporters Love Elections, 49 U. Miami L. Rev. 155, 158 (1994).

9. Penny J. White, Judging Judges: Securing Judicial Independence by Use of Judicial Performance Evaluations, 29 Fordham Urb. L.J. 1053, 1076 (2002).

10. See Traciel V. Reid, The Politicization of Judicial Retention Elections: The Defeat of Justices Lanphier and White, 83 Judicature 68 (1999).

11. White, supra, note 9 at 1059.

12. Kevin Esterling and Kathleen M. Sampson, Judicial Retention Evaluation Programs in Four States: A Report with Recommendations (1997).