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The public must be involved in any judicial evaluation plan: court panel hears how other states do it.

Any public judicial evaluation system must have heavy participation from nonlawyers if it's to have credibility with the public, according to an Arizona judge who serves on that state's judicial evaluation board.

Arizona Court of Appeals Judge Philip Espinosa discussed that state's judicial evaluation experience recently with the Florida Supreme Court's Committee on Judicial Evaluation, recently created by Chief Justice Fred Lewis. The committee met during the Bar's Midyear Meeting in Miami.

The committee also heard from Seth Anderson, executive vice president of the American Judicature Society, which supports judicial evaluations, and the panel generally discussed evaluation issues. It ended by saying the panel would seek input from judges, lawyers, and the public.

First District Court of Appeal Judge Peter Webster, chair of the committee, noted the panel is charged with looking at all types of evaluation systems, from private feedback to judges aimed at improving their performance to public ratings to help educate voters. And that will include a system for trial judges who face elections and appellate judges who face merit retention, he said.

Supreme Court Justice Peggy Quince, liaison to the panel, emphasized that the court expects a broad-ranging inquiry.

"Everything is on the table, from a system we may not have ever seen or heard of before to the system that is currently in place. We want a system which adequately protects the public and serves the public and the judges involved with it," she said. "We don't want you to rush to judgment on this. Everything needs to be done to protect the judges and protect the interests of the public."

Webster said the committee would spend its first meetings getting educated and collecting information. Education is what Anderson and Espinosa provided.

The judge said he wanted to talk less about the specifics of the Arizona system than the experiences of its Commission on Judicial Performance Review.

The commission, he said, evaluates judges for the Phoenix and Tucson areas, and Supreme Court justices. Under a state constitutional amendment, the two most urban areas of the state, Phoenix and Tucson, have the trial and appellate judiciary picked and retained by merit selection and retention.

The commission itself has 34 members. No more than six can be judges, six are lawyers, and four slots are reserved for state legislators, Espinosa said. The rest go to public members, a move intended to bolster public confidence in the process and fend off charges it is overly influenced by lawyers and judges.

The process was created about 10 years ago as a result of an earlier, failed evaluation system that involved having trial judges evaluated by a committee using unknown criteria, which resulted in the opposition of those judges, he said.

The legislature then got involved and at first tried to revoke the merit selection and retention system. That failed and the resulting compromise was the constitutional amendment requiring a judicial evaluation system.

Among the commission's goals are to improve judicial performance, increase public confidence in the judiciary, and perhaps to some extent prevent future attacks on the merit selection system, Espinosa said. He said the review system has undergone a lot of tinkering since it was set up several years ago, perhaps more than was necessary.

In the first election after implementation, the commission put out reams of information about the judges, only to be criticized for inundating voters with too much data. So for the second go-around, the panel just stated whether it thought the judges on the ballot should be retained or not--and got even more criticism for not providing enough information. So the panel went back to providing more information, much of it on its Web site, www.azjudges.info/home/index.cfm.

"We're doing a pretty good job of getting the best information we can out to people," Espinosa said.

Likewise, the commission originally held a series of public hearings before making recommendations for its first retention cycle.

"We didn't get a lot of people talking about the process and the way people judge, rather than what the judges actually decided," he said.

One speaker became so animated "we were going to call security, only we didn't have any," Espinosa said. The panel has since scaled back to one hearing per election cycle.

The Arizona judicial ratings are based on polls of attorneys, court personnel, litigants, jurors, witnesses, and "anyone who has come into contact with the court system," he said.

The commission doesn't use juror responses--which are unanimously positive--in reaching its recommendations, although it does report those findings to voters.

Most weight is given to attorney responses, who are deemed best suited to judge legal ability and knowledge and adherence to the rules. Having a nonlayer majority on the commission gives credibility to the commission's decisions about not using juror responses, but giving great weight to lawyer evaluations, he said.

Espinosa said he thinks the commission's work has had a positive impact, although perhaps not a large one. He noted the one trial judge that the commission has so far recommended against retaining did win his retention vote. But when a special interest group mounted a last-minute campaign against an appellate judge--which Espinosa characterized as misleading and unfair--the judge was able to point to the commission's recommendation that he be retained. That judge won his retention contest.

"Meetings of the commission are in the sunshine," he said. "You need transparency in this system. That's one of the answers between the tension between judicial independence and judicial accountability. ... People have to see how the commission does its business. It cannot be a star chamber."

Webster asked if the commission's 10 years of operations had led to more citizens voting in judicial races.

"I believe it has been concluded by people who have looked at it that there has been some improvement. It has been slight; I wouldn't say it is significant," Espinosa replied, adding, "I'm encouraging you to do this and march forward because I think it is worth doing. But we had a lot of expectations that had to be scaled back."

Anderson, of the judicature society, noted the trend toward doing judicial evaluations. Thirty years ago, no states did evaluations. Now, he said, 19 states, along with the District of Columbia and Puerto Rico, have some form of judicial reviews.

Seven states and Puerto Rico have a purely confidential system intended to provide feedback to judges to help them improve their performance. Seven states, Anderson said, have systems that provide both a public evaluation and confidential feedback. And five states and the District of Columbia have an evaluation system to provide input to the appointing authority which is charged, instead of the public in the voting booth, with reappointing or not reappointing sitting judges. Florida has a confidential system for trial judges and poll for appellate jurists.

"For the ... merit retention states, there is the additional rationale to provide an objective performance report to the public," Anderson said of evaluation efforts. "The benefit of this approach is rather than focusing on individual judicial decisions ... these types of evaluations assess a judge's overall job performance."

Feedback to judges, both in the confidential and public systems, can let them see areas where they are performing well and where they need improvement, he said. They also, in the aggregate, can show legal administrators areas where additional judicial education programs could improve the overall court system.

Bar polls now provide some feedback for the public, but the effort is uneven and usually underfunded or under-publicized, Anderson said. He noted in the Chicago area voluntary bars join together to evaluate judges (who are initially elected in partisan contests and then stand for merit retention), but in the past 14 years, no judge with an unfavorable rating has been defeated in Cook County, although one recently lost in a downstate election.

The bar efforts are typically dwarfed by the operations of political groups, including judges' campaign committees, which pass out palm cards to voters advising them how to vote, he said.

With the judiciary under attack by some special interest and partisan groups, Anderson said judicial evaluations are a way to counter that trend.

"There is a growing debate on the role of judges in society and their independence. There is an opportunity to refocus the debate on what judicial independence means and the proper understanding of an accountable judiciary," he said. "Doing evaluations helps protect judges from targeted attacks."

Third District Court of Appeal Judge Melvia Green agreed that public education must be part of any evaluation program.

"Until you get them on the same page, all of the evaluations by the bar will remain meaningless," she said. "I think that's going to be our task, to try to bring the bar and public together on the criteria of what makes a good judge."

Committee member Dianne Wheatley-Gillotti, from the League of Women Voters, said citizens are hungry for information about judges. She noted 95 percent of the calls the league gets are seeking information about judges up for election or retention. Some asked how to vote, since they didn't have any information about the candidates, and some asked for party affiliation--apparently unaware Florida judicial races are nonpartisan.

"Who are your customers out there? They are the voters and obviously they want information on which to make an intelligent vote," Wheatley-Gillotti said. "People recognize their vote is important and they want to exercise it in an appropriate way to reflect their views."

Anderson warned that any Florida program might run into legal problems if it attempted to evaluate trial judges who are up for election, because it could be charged with spending public money on an incumbent, but not on any challengers. Committee members said that problem could be avoided by periodically evaluating trial judges independent of an election cycle.

Committee Vice Chair Tom Warner said he doubted the trial courts will ever go to a pure merit retention and selection system unless there is a credible evaluation system.

Webster said any evaluation program is likely to cover appellate judges before being extended to the trial bench.

"Buy-in by judges is a critical aspect of any program that has a hope of working," he said, suggesting information from the meeting be presented to the Conference of District Court of Appeal Judges. "It would be good to get some input from the people we are subjecting to evaluations."

Gary Blankenship

Senior Editor
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Author:Blankenship, Gary
Publication:Florida Bar News
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Date:Feb 15, 2007
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