That’s the main thrust of my latest guest post at the IAALS blog. Forced to adopt a wide range of technological resources during the pandemic, courts systems are now better situated to use that technology to improve surveys, observe judicial behavior, and communicate wih the public.
I was interviewed extensively for this piece in Denverite about Colorado’s judicial performance evaluation (JPE) program. The primary takeaway is that voters should feel very comfortable with a program that works so hard to evaluate judges on the process (as opposed to the outcomes) of judging.
A number of states have excellent JPE programs, but not enough. Done properly, JPE benefits voters, the general public, and most of all the judges themselves. It should be part and parcel of every state and federal judicial program.
A glance at the recent developments, and what to look for in the future.
It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.
Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”
I have a guest post up at the IAALS Blog, which looks at a renewed effort to survey attorneys about judicial performance in Nevada. But unlike formal judicial performance evaluation (JPE) programs in other states, these surveys will be sponsored by the state’s largest newspaper, the Las Vegas Review-Journal. Another difference: the surveys are designed in part to identify poor-performing judges this fall so as to attract election challengers for 2020. I find this second aspect particularly uncomfortable and largely inconsistent with the voter education and self-improvement goals of typical JPE programs, but judge for yourself.
Many states had judges and issues affecting the judiciary on their ballots this week. Here are some of the more noteworthy outcomes from several western states:
In California, state supreme court Associate Justice Carol Corrigan was retained by voters by about a 2-1 margin. Corrigan had been the target of an anti-retention campaign by several LGBT groups, who took issue with her dissent in the state supreme court’s decision legalizing same-sex marriage in 2008. Happily, most voters (regardless of how they felt about that case) properly viewed that opinion in the context of hundreds that Justice Corrigan has issued over her judicial career.
In Alaska, Judge Michael Corey was not nearly as lucky. In a situation reminiscent of the mob that removed Judge Aaron Persky in California earlier this year, Judge Corey was targeted for non-retention by a group calling itself “No More Free Passes.” The group took issue with Judge Corey’s decision to approve a “no jail time” plea deal for a man accused of strangling a woman until she fell unconscious, and then masturbating on her. The problem for the prosecutors and for Judge Corey was that this sickening act does not qualify as a sex crime under Alaska law. Consistent with existing law, the district attorney proposed a plea deal that allowed the defendant to walk away without jail time, and Judge Corey approved it.
It’s not hard to see why this decision would raise anger about the state of the law, and mobilize people to change it. But instead, Judge Corey became the target, and “No More Free Passes” ran a successful social media campaign to prevent his retention. This despite his excellent performance review (which was issued before the plea deal was approved).
The leader of “No More Free Passes” admitted that its removal of Judge Corey was largely symbolic, and that its main focus was on changing the law. In a Facebook post, she stated that the group “will no longer be discussing Mr. Corey…. We wish him nothing but the best in his future.” That is cold comfort for an excellent judge whose only fault was following the law. Congratulations to “No More Free Passes” on destroying a judge’s career purely as an act of symbolism. I hope you sleep well at night.
In Colorado, voters narrowly defeated Amendment W, which would have streamlined the judicial retention ballot in future elections. A majority of voters supported the amendment, but “yes” votes did not meet the 55% supermajority threshold required for passage.
Out of more than 100 judges on the Colorado retention ballot, two were not retained by voters. Both judges had received poor performance evaluations from Colorado’s official JPE program. Several other judges were targeted by anti-retention groups or individuals, but had received strong performance evaluations and were comfortably retained by voters.
In New Mexico, which uses a mixed judicial selection system (judges must initially run for their seats in contested elections, and afterward face retention), voters radically overhauled the state court of appeals. Four new judges were elected–all women, and all Democrats–giving women eight of the ten seats on the court. Another court of appeals judge, Michael Vigil, left his seat to run for the state supreme court, and handily defeated incumbent Gary Clingman. Vigil’s seat will be filled by gubernatorial appointment. The only male judge left on the court, Judge J. Miles Hanisee, was retained by a comfortable margin.
New Mexico voters were also asked to “clear the bench” of judges by an anonymous group starting early this year. While the movement had little impact on the state’s appellate and district courts, four Metropolitan Court judges failed to reach the 57% threshold for retention. Of the four who were not retained, two were not recommended for retention by the state’s judicial performance evaluation commission. Two other judges who likewise were not recommended for retention just squeaked over the retention threshold, with 57.15% and 57.02% of the vote, respectively.
In Arizona, state supreme court Justice Clint Bollick was comfortably retained by voters despite an anti-retention effort funded by the National Education Association.
And in Texas, one of only two states that permits voters to simply vote a straight party ticket, a Democratic wave unseated nineteen incumbent Republican judges on the state’s intermediate appellate courts. This party sweep (which is not uncommon in Texas) will lead to two related consequences for the appellate courts. First, a number of highly experienced judges are now out of a job. Second, the learning curve for the new judges will take time. I do not envy anyone with cases pending in those courts over the next several months, as an entirely new judiciary gets it feet wet.
UPDATE 11/16/18: The post has been revised to reflect the Colorado supermajority requirement for Amendment W.
Judge Paul Moore, who is alleged to have doctored his state judicial evaluations, resigned yesterday. The resignation is effective immediately.
No word yet on what will become of the formal complaint against Judge Moore, which was last month by the state’s Supreme Court Committee on Judicial Conduct.
There is currently an effort in Santa Clara, California, to recall Aaron Persky, the Superior Court judge who gave an extraordinarily light sentence to former Stanford swimmer Brock Turner last summer after Turner was found guilty of sexual assault. Persky sentenced Turner to six months in county jail, far short of the recommendations of prosecutors, after Turner was found to have sexually assaulted a drunk and unconscious woman behind a dumpster.
Turner’s actions were hideous, and it is certainly understandable why a light sentence would be greeted with surprise and even outrage. And Judge Persky’s standard defense–that any challenge to his discretion would compromise judicial independence–sounds almost ridiculous in this context. But the recall effort is still a terrible idea.
The legislature-approved salary increase of 4 percent over two years was in line with Governor Scott Walker’s recommendation, but far below the 16 percent increase requested by Chief Justice Patience Roggensack. The Wisconsin judiciary currently ranks 43rd nationwide in judicial pay.
Many states conduct periodic performance evaluations of their judges, either for internal education and improvement, or to educate voters in advance of judicial retention elections, or both. No state formally evaluates judicial candidates along the same criteria — a process I have called prospective performance evaluation — but the task is so important that local and state bar associations sometimes undertake it themselves.
The Philadelphia Bar Association recently unveiled their new evaluation process for judicial candidates, and it is impressively thorough — much more than this local news report suggests. The standards set forth by the Philly Bar are carefully done and well worth a review by voters and court observers alike.
The Institute for the Advancement of the American Legal System (IAALS) has published Transparent Courthouse Revisited: An Updated Blueprint for Judicial Performance Evaluation. The document significantly updates a 2006 edition of the same publication. It draws on best practices from around the country on evaluation commissions, the evaluation process, reaching recommendations, funding, and disseminating results. It’s an important read for anyone interested in state courts and judicial performance evaluation (JPE).
More on the IAALS Quality Judges Initiative here.