Using Judicial Performance Evaluations to Promote Judicial Accountability

Article excerpt

In November 2006, voters in several states faced ballot measures that would have crippled the ability of state courts to do the work we expect of them. The "JAIL 4 Judges" referendum would have subjected South Dakota's judges to civil and criminal penalties for deciding cases in ways that offended a small minority of citizens. A proposal in Montana threatened judges with special recall elections if they made unpopular decisions. In Colorado, a ballot initiative sought to penalize judicial experience by imposing retroactive term limits for appellate judges, a measure that would have ousted nearly half the sitting appellate bench. And Oregon voters considered whether to elect their appellate judges by geographic district, apparently intending to tie judicial candidates more closely to the values of a particular region of the state.

Each of these initiatives was couched as an effort to hold judges more accountable, "accountability" being defined (implicitly or explicitly) by their sponsors as adherence to the will of the majority. The chief architect of the Colorado initiative, for example, argued that term limits would make the judiciary as a whole "more responsive to the sovereign will of the people." Similarly, in Montana, proponents argued that recall of individual judges would "be a powerful tool for judicial accountability and democratic oversight of a branch of government that for too long has been too removed from the will of the people."

Although none of these initiatives was ultimately successful, those who want an effective, impartial judiciary can ill-afford to be complacent about the conditions that fueled their placement on the ballot. The public is increasingly being asked to hold judges accountable for the outcomes of specific cases, rather than the appropriateness of the process used to reach those outcomes. This was not always the case. The time is ripe to return "judicial accountability" to its traditional role: a necessary partner, along with judicial independence, in ensuring an effective judicial branch.

This article summarizes the results of a recent comprehensive study of an existing but underutilized approach to process-oriented judicial accountability: judicial performance evaluation (JPE). The study, undertaken by the Institute for the Advancement of the American Legal System at the University of Denver, concluded that if properly designed and executed, JPE can be an effective means of building appropriate, shared expectations about the proper role of the judiciary, and could be implemented in every American jurisdiction.1

A primer on JPE

Nineteen states, plus the District of Columbia and Puerto Rico, employ some form of a judicial performance evaluation program (see "Overview of official judicial performance evaluation programs," page 204). These programs vary in their specifics-for example, they may use slightly different criteria for measuring judges' performance, or seek information from somewhat different sources, or share information with the public in different ways-but as a general rule all focus on whether judges are managing cases efficiently, deciding them on the basis of established facts and applicable law, explaining their decisions clearly, and exhibiting proper courtroom demeanor. In addition, regardless of the differences in their formats, JPE programs are uniformly process-oriented, not outcome-oriented: what matters is whether the judge handled a case in a balanced, fair, and efficient manner-not whether the ultimate decision in the case provoked limited or even widespread opposition.

Each judge is typically evaluated by an independent commission consisting both of attorneys and non-attorneys. The commission provides surveys to attorneys, jurors, and others who have interacted with the judge in a professional setting, asking for anonymous responses to questions about the judge's professional skills. In more comprehensive programs, the commission also reviews the judge's case management statistics and written opinions, solicits public comments on the judge's performance, and conducts one or more interviews with the judge. …