August 2006

Building Public Faith in the Courts: Judicial Performance Evaluations

by Mary Wechsler

How should judges be evaluated?

What tools can judges use to improve their performance?

How can information on judicial performance be provided to the public?

Few things are more central to the dual task of doing justice and building public faith in the institutions of representative government than assuring that judges perform their duties with both integrity and skill. Washington has been fortunate in the quality of its judges. It would be presumptuous, however, to suggest that those now on the bench could not improve their performance, or that the voters who are called upon to select among judicial candidates could not benefit from having more and better information about them.

There are few tools that judges can use to evaluate and improve their own performance. Voters have a hard time distinguishing among judicial candidates, making them reluctant to participate in electing judges and potentially susceptible to single-issue attacks. Bar polls and ratings, where available, offer only the perspective of practicing attorneys. Judicial independence, integrity, and excellence are too important for us to be satisfied with this state of affairs.

Twenty years ago, the ABA published a set of proposed guidelines for judicial-evaluation programs. A task force led by then-Washington State Supreme Court Justice Robert F. Utter was formed to develop a program for Washington, but it was never implemented. In 1996, the Walsh Commission recommended that "[a] process for collecting and publishing information about judicial performance shall be created under the authority of the Supreme Court." In 2006, this recommendation still awaits implementation.

Over the past six years, the Washington State Chapter of the American Judicature Society (AJS) has developed a model for an effective program of performance evaluations for Washington state judges. Judges from every level of court in Washington participated in this project. The AJS has examined programs used elsewhere, developed and pilot-tested evaluation instruments for both trial and appellate judges, and wrestled with practical issues of implementation.

The first task that the AJS undertook was to articulate performance standards for judges, by reviewing standards used in several different states, as well as standards used previously in Washington in more limited evaluation systems (see chart on page 39).

Under the guidance of Professor David C. Brody, and utilizing the ABA guidelines, the AJS developed questionnaires to measure these qualities. Pilot tests were conducted among both trial and appellate judges. For trial judges, questionnaires were distributed to attorneys, witnesses, and jurors who appeared in the trial judges' courtrooms. For appellate judges, questionnaires went to attorneys appearing before the appellate court and to superior court judges in the same jurisdiction. The judges who were evaluated found the results very useful; the feedback they received would not otherwise have been available to them. Professor Brody's article summarizing the findings was the cover story in the January-February 2004 issue of Judicature. (Access the article at www.kcba.org/scriptcontent/kcba/judicial/pdf/brody.pdf.)

Pilot testing validated the AJS's questionnaire-based evaluation process and established that a well-designed evaluation program can be carried out at reasonable cost. Nevertheless, a reliable source of ongoing funding is essential: grants and volunteer labor are not sufficient to carry out an ongoing, statewide program of judicial-performance evaluations.

Implementation

A panel of citizens should oversee the evaluation process. The panel should represent the diversity of the state and should include attorneys; retired judges; well-informed lay representatives; and members of good-government groups such as the Municipal League, AJS, and the League of Women Voters. The Administrative Office of the Courts should provide staff support and oversight.

Respondents must be assured that their views will not be traceable to assure candid evaluations. Responses should reflect ratings on specific criteria and not include narrative comments.

A similar process of evaluation, conducted mid-term, could be a very valuable tool for judicial self-improvement. The confidentiality required for this kind of evaluation process is likely to require legislation, given the clear public policy in this state favoring release of public records absent specific exemption. It will be essential to work with public-access proponents to craft such a proposal.

A key goal of the judicial-evaluation program envisioned is to provide information to the public to consider when voting for judges. Evaluations should be published in the Judicial Voter Pamphlet as well as made available electronically. The results should list the number of responses and provide the judge's response, if offered. The evaluation panel should not recommend for or against any judge. Rather, bar associations and editorial writers may interpret the results and offer recommendations if they wish.

All candidates for election to the bench should be evaluated, and the results of those evaluations publicly disseminated, including not only judges but also candidates for judicial office who lack judicial experience. The same qualities are relevant for all candidates. In evaluating non-judge candidates, the panel should focus on the candidate's arbitration, mediation, and pro tem experience, and seek evaluations from attorneys who have appeared before or opposite the candidate, and judges who have had the candidate in their courtroom.

Although candidates who are not currently part of the court system cannot be compelled to cooperate, these challenges are not insurmountable. Publicizing the evaluation process and disclosing any lack of cooperation will discourage stealth candidates. In addition, the evaluation panel can elicit and publicize information from sources not disclosed by the candidates. The end result will be an evaluation process that is fair to all participants and that promotes voter knowledge. (The entire report can be found at www.kcba.org/scriptcontent/kcba/judicial/pdf/ajs-evaulations.pdf. [sic])

The Judicial Independence and Selection Summit

The AJS proposal for judicial performance evaluations, outlined above, was presented at the Judicial Independence and Selection Summit in November 2005. Statewide systems of judicial evaluation were also among the topics discussed during breakout workshop sessions at the Summit. The diverse audiences at the Summit who participated in four different workshops demonstrated that there is broad support for such a program, at least among those who were present.

Nearly every workshop participant favored a statewide program for evaluation of judicial performance. Participants noted that voters need more information, including criteria by which they should evaluate judges. A systematic program will promote consistency in evaluations over time and across the state. Ideally, such a program will feature high levels of participation as well as timely, valid responses from folks with recent experience of a judge, focused on appropriate evaluation criteria. This will engender public trust and confidence in the judiciary.

A majority of Summit workshop participants believed that a judicial evaluation program should be aimed at both self-improvement and voter education. With respect to self-improvement, participants noted that judges tend to become isolated or to lose touch — feedback from evaluations can be valuable. Participants were also enthused about the potential value of such a program for improving the information available to voters. As some participants noted, judicial-evaluation programs might help overcome voter distrust of candidates' own statements in the voter's pamphlet and could bring to light those excellent judges and attorneys who might be operating in relative obscurity. The public needs information about what judging is about (e.g., the process by which decisions are made). Confidence in the judiciary is not the same thing as ideological alignment with judges' views.

As to how such a program might be implemented, participants agreed that judicial-performance evaluations should be conducted by a broad-based, diverse citizens' group, including nonlawyers. This group should be independent of, though supported by, the government. It should avoid any "popularity contest" and avoid recommending candidates to the voters. It should also seek to assess those who are challenging sitting judges, even though this could be difficult.

There was consensus that a statewide judicial-evaluation program would not automatically inform voters. It would need to be combined with effective voter education that delivers the results of the judicial evaluation program to voters, and limits upon infusions of money into judicial campaigns that could otherwise drown out this information. (Evaluation forms from the summit can be found at www.kcba.org/scriptcontent/kcba/judicial/pdf/
evaluationsystems.pdf.)

As the conclusions reached by the American Judicature Society and the participants at the Summit show, there is growing interest in creating a statewide judicial-evaluation system. Interested persons from many organizations, including the Municipal League and the League of Women Voters, and various bar groups, have joined members of the original American Judicature Society committee to further develop these ideas and explore methods of implementation. If you are interested in joining this effort, please contact King County Bar Association Executive Director Alice Paine.

Mary Wechsler practices in Seattle. The American Judicature Society (AJS), founded in 1913, is an independent, national, nonpartisan organization of judges, lawyers, and other members of the public who seek to improve the justice system.