Panel studies judicial evaluation systems
In Arizona, trial and appellate judges up for merit retention get a thorough review by a commission dominated by nonlawyers and which hears from witnesses, parties, jurors, courtroom personnel, attorneys, and others about their performance. The panel’s final report is made public as a guide for voters.
The Bar’s Judicial Administration and Evaluation Committee (JAEC) heard a detailed presentation on the Arizona judicial review system at its recent gathering during the Bar’s Winter Meeting.
For the record, no, the committee is not considering a system for Florida where judges would be reviewed by a commission that would issue a report to voters. Instead, the committee is looking for ways to boost judge and lawyer participation in its confidential feedback program designed to improve the performance of judges.
Arizona Supreme Court Justice Ann Scott Timmer has a brother who works in the law firm of Bar Board of Governors member Lanse Scriven who is also the board liaison to JAEC. Scriven and Timmer met at a conference, began to talk (both are college basketball fans), and the result was the justice agreed to appear by telephone at a JAEC meeting to discuss Arizona’s judicial feedback program. She was accompanied by Arizona Court of Appeal Judge Patricia Norris.
Timmer said the Arizona evaluations are overseen by the state’s Commission on Judicial Performance Review, which evaluates merit retention justices on the Supreme Court, the Court of Appeals, and trial judges in Maricopa, Pima, and Pinal counties.
The review commission may have up to 34 members, but must have a majority membership of nonlawyers. Timmer said, currently, it has about 30 members with six judges, six lawyers, and the rest nonlawyers.
For trial judges, evaluation forms go to witnesses, jurors, courtroom personnel, parties, and attorneys, with assurances that all responses are confidential. They are asked to rate judges on communications, integrity, temperament, and administrative performance. Attorneys are also asked to rate them on legal ability and on settlement activities.
Attorneys receive forms for appellate judges. Trial judges are evaluated for a four-month period in the middle of their four-year term and for another four months in the year they are up for retention. Appellate judges are rated continually.
All the forms go to an independent company, which assigns a number to each judge and the results are compiled and submitted to the Commission on Judicial Performance Review. Members review the results, again without knowing the judge to which the results pertain.
The commission takes a vote on whether a judge meets judicial standards. Those results are then attached to each judge’s name and the results are posted online and sent to voters by the secretary of state.
Timmer said there was a campaign to encourage voters to fill out their entire ballots, including the judicial contests, which are located toward the bottom of the document.
Norris said commission members do consider more than just straight numbers. She said if judges are handling contentious and emotional cases, such as in family court, the commission takes into consideration if litigants are harsh on judges.
“We use our judgment in making the final recommendation to the voters,” Norris said.
There’s also a procedure where three commissioners — typically a judge, a lawyer, and a nonlawyer — can meet with a judge to discuss the results.
JAEC members were curious how Arizona deals with a problem they have with the Florida judicial feedback system: getting enough attorneys to respond.
“In the trial court, what happens is. . . a courtroom person, usually the bailiff, will hand the jurors the questionnaires, and one for the lawyers and one for the litigants. They are encouraged to send them back. They are anonymous and they don’t have to put a stamp on them,” Timmer said, adding that there is usually a good response for trial judges, particularly from jurors who may have formed a bond with a judge over the course of a trial.
She also said that litigants and witnesses tend to return at a higher rate than lawyers in the trial courts.
“For the appellate, they mail the form to the lawyers in the court and sometimes the result is abysmal,” Timmer continued.
“We are working on trying to encourage in any way that does not seem self-serving or intimidating to return their questionnaires. But it is an ongoing problem.”
She said when she ran for the Arizona Supreme Court in 2012 (after serving on the intermediate appellate court for 12 years), her evaluation was based on 70 responses over the previous 2.5 years.
“We are trying to do a better job in the data collection part of the process. It has not been easy,” Timmer said.
Recommendations from the review commission do appear to have an impact. Almost all judges are found to be meeting judicial standards and the overwhelming majority gets a unanimous vote from the commission.
In the 2014 elections, Timmer noted that two trial judges were found not to be discharging standards by the commission.
One was rejected in the retention vote, she said, and the other was retained by a narrow margin.
Timmer said the review commission is considering the use of electronic instead of paper evaluations in hopes of both improving the number of responses and cutting cost, an idea that also appealed to JAEC members.
Norris and Timmer said nonlawyer members on the review commission help promote its credibility when they go back to their communities and talk about the review system.
“It’s to meet the public expectation of judicial performance being as high as possible. That’s the bottom line,” Norris said. “If you’re the public, trust these judges, especially since there’s criticism out there with any controversial decision.
“We want people who do their duty.”
After Norris and Timmer’s presentation, committee members discussed options for improving knowledge about and participation in the Florida judicial feedback program, to include the hiring of an expert for advice on improving participation.
In discussing those options, the committee emphasized any improvements would focus on the system’s confidentiality (responding lawyers are not identified) and intention to improve judges’ performance.
Suggestions included a seminar at the Bar’s Annual Convention in June, a presentation after the Judicial Luncheon, and promotion by chief judges and local bar associations of the feedback program.
Currently, most judges — both at the appellate and trial court levels — do not participate in the feedback program, and for those who do, only a few lawyers bother to fill out and return the feedback forms.
