A strategy for judicial performance evaluation in New York.

• Author: Kourlis, Rebecca Love
• Position: PERSPECTIVES

New York has experienced a loud and tumultuous decade with respect to the selection of its state and local judges. In 2006, the system of partisan nomination of candidates for election to the trial court bench was declared unconstitutional on First Amendment grounds, (1) causing the state legislature to argue over the future of the selection process until the United States Supreme Court reversed the decision in January 2008. (2) At about the same time, studies revealed that the voting public knows very little about the judicial candidates on the ballot, causing actual voter turnout in most judicial elections to hover near twenty percent. (3) And just recently, the nominating process for an opening on the state's Court of Appeals, spurred by the retirement of Chief Judge Judith Kaye, was criticized for producing a group of finalists that lacked sufficient diversity. (4)

These developments share two common threads. First, and most obviously, they call attention to the importance of establishing a credible, fair, and trusted judicial selection process for every court in New York State. But as importantly, these events underscore the need for decision-makers and the public to have complete, reliable, and relevant information about judges and judicial candidates. Informed voters are more likely to cast ballots in judicial elections, and to make better choices when they do. Informed nominating commissions are more likely to present slates of quality judicial nominees. And an informed public should have greater confidence in its judges.

Unfortunately, existing mechanisms in New York lack both the depth and breadth to provide information on judges and judicial candidates in a truly meaningful way. This need not be the case. Across the country, states have adopted judicial performance evaluation (JPE) programs that provide continuous, comprehensive assessments of the skills that each judge or judicial candidate brings to the bench. (5) In this essay, we describe how JPE programs work, consider what lessons those programs offer for judicial screening and judicial selection in New York, and explain how both the citizens and judges of New York would benefit from an official, comprehensive JPE program.

1. THE VALUE OF JUDICIAL PERFORMANCE EVALUATION--A NATIONAL PERSPECTIVE

   JPE programs began in the mid-1970s as a mechanism for reviewing sitting judges' skills and abilities related to the process of adjudication. (6) Prior to that time, the only organized evaluations that existed in any jurisdiction were bar polls, which ran the risk of devolving into popularity contests or political gauntlets. (7) Rather than address specific case outcomes, which are properly the province of appellate courts or policymakers, JPE programs focus on qualities that would be expected of any judge, such as even-handed treatment of litigants,s To date, approximately twenty states and the District of Columbia have established a formal program to evaluate sitting judges, (9) and several more are on the way. Since 2007, state-authorized JPE programs have been introduced in Illinois, Kansas, and Missouri, pilot programs have been run in North Carolina and Washington, and JPE has been the subject of careful and intense study in Minnesota and Nevada. (10)

   While the precise format of JPE programs varies by state, the most comprehensive programs all feature five elements: (1) the evaluation of sitting judges at regular intervals; (2) evaluations conducted by an independent, balanced commission; (3) evaluation criteria related strictly to the process of judging rather than individual case outcomes; (4) collection of a broad and deep set of data on each judge; and (5) public dissemination of evaluation results. (11) By "independent, balanced commission," we mean a commission composed of both attorneys and non-attorneys, appointed to staggered terms by different branches of government or segments of the community. Studies have shown that the input of lay citizens in the evaluation process is valuable both for the credibility of the evaluations--after all, judges are ultimately accountable to the public they serve--and for the citizens themselves, who gain a deeper appreciation of the challenges judges face. (12)

   Five evaluation criteria are typically employed in JPE programs: knowledge of substantive law and relevant rules of procedure and evidence; integrity and freedom from bias; clarity of communication (both oral and written); judicial demeanor; and administrative capacity. Some jurisdictions add a sixth criterion--public service--which takes into account the judge's role in the community. (13) To flesh out each judge's satisfaction of these criteria, the independent commission collects data from a wide range of sources, including surveys of attorneys, jurors, court staff, litigants, and witnesses; caseflow management/docket data; direct courtroom observation; interviews with the evaluated judge; and public comments. (14)

   Evaluations are typically conducted in advance of elections or reappointment decisions if the judge seeks another term on the bench. (15) Accordingly, once the commission has reviewed all the available information on a judge's performance, it drafts a written evaluation, including--where appropriate--a recommendation as to whether the judge should be retained or reappointed. (16) As a best practice, the judge is then allowed to review the evaluation and seek another meeting with the commission if the judge is concerned about the accuracy or fairness of the evaluation. (17) If the judge does meet again with the commission, the commission may alter its evaluation or recommendation if it so chooses. (18) Ultimately, the evaluation and recommendation are distributed to relevant decision-makers ahead of the reappointment decisions or to the public though newspapers, voter guides, and the internet in advance of the election. (19)

   JPE programs are not limited to retention or reappointment states, however. In Massachusetts, New Hampshire, and Rhode Island, where judges serve for life or until a mandatory retirement age, extensive JPE programs still exist. (20) At the other end of the spectrum, some states with contested judicial elections have created programs to evaluate and disseminate information on candidates who have never sat on the bench--a process we call prospective performance evaluation or PPE. (21) These developments underscore the value of performance evaluation programs regardless of a state's method of judicial selection.

2. THE NEED FOR ROBUST EVALUATION OF JUDICIAL CANDIDATES IN NEW YORK

   The JPE model is immediately relevant in New York because of the longstanding need for quality information on judicial candidates. A 2003 public opinion survey found, among other things, that a clear majority of registered New York State voters (58%) "indicate[d] that the main reason they would not vote in a judicial election is that they do not know enough about the candidates." (22) The survey also found that 88% of respondents thought voter guides would be a useful way to learn more about judicial candidates and campaigns, with 46% of those respondents stating that voter guides would be "extremely useful" or "very useful." (23) Similarly, a detailed 2004 focus group study by the Government Law Center of Albany Law School determined that:

   Lack of information about the judicial system and judicial candidates was the most commonly mentioned hindrance to voter participation; (24)

   Eight of the nine focus groups in the study recommended the creation of multi-media awareness campaigns directed to citizens that include information about the New York State judicial system and judicial candidates; (25)

   Seven of the nine focus groups recommended an independent screening process for judicial candidates, (26) and 82% of focus group participants thought screening commissions were a good idea; (27) and Five of the nine focus groups recommended creating a system for monitoring or rating of judges, which would include developing judicial review boards with citizen participation, instituting a courtroom observation program, and making judicial reviews available to the public over the internet. (28)

   Building on these studies, in 2004, the Commission to Promote Public Confidence in Judicial Elections ("Feerick Commission") issued a report recommending the independent pre-screening of judicial candidates "as a fair, credible, and realistic plan to promote confidence in judicial elections." (29) Specifically, the Feerick Commission called for the development of Independent Judicial Election Qualification Commissions (IJEQCs) in each judicial district. (30) The IJEQCs would, among other things, actively recruit judicial candidates, apply consistent and public criteria to all candidates, and publish a list of all candidates found to be well qualified. (31) The Feerick Commission explained:

   Through independent...