Hold judges accountable with performance evaluations

The link between the lack of progress toward abolishing contested judicial elections of circuit court judges and the failure of the state to create a rigorous but fair program of judicial performance evaluations is unmistakable. This, coupled with the fact sitting judges run against one or more self- selected opponents who have not been evaluated by any objective organization or criteria, arguably puts the incumbent judge in an unfair and untenable position. That said, sitting judges are already unfairly disadvantaged because “judicial evaluations” are now rampant on the web, in social media and other sources of news.

So, the choice is no longer whether to have a system of judicial performance evaluations set up, supervised and managed by a fair and impartial organization or no judicial evaluation system at all. Rather, the choice is between a system of judicial performance evaluations administered by a neutral organization – whose job it is to manage the system fairly and impartially – or multiple systems set up to move the agenda of an advocacy group, the election of a rival judicial candidate and/or just generate headlines.

This political reality has produced a strong opposition to the establishment of any official judicial performance evaluations. It is, however, clear that if not for the resistance to eliminating contested elections,and a lack of confidence in the ability of the organization doing the evaluating to keep the results confidential, many judges and those who support measures to select and maintain judges who are most highly professionally qualified would not only support but participate in the development of standards by which to “judge the judges.”

MSBA position

As far back as 1985, the American Bar Association approved and published “Guidelines for Judicial Evaluation.” About a dozen states use such evaluations today – but not Maryland. (Six of the 39 states with contested judicial elections now publicize official evaluations.) Many private organizations, to their credit, are publishing their own evaluations using these criteria.

The Maryland State Bar Association has, for almost the same quarter of a century, recommended such a program. The last time the MSBA spoke on the issue was in a 1998 report by a “Special Committee on Judicial Personal Management,” which I co-chaired. We reiterated the longstanding position of the MSBA: there should be an ongoing program of judicial evaluations, mandatory and applicable to all judges within the state of Maryland. It further recommended the responsibility for developing, overseeing, supervising and evaluating this program should be lodged in the Administrative Office of the Courts or an independent contractor hired and paid for by the Judiciary. Furthermore, the program should have a “clearly identified administrator, charged with a developing a specific program for data collection, storage, analysis, record keeping, etc.”

The recommendations were not implemented or even studied beyond reviewing the results of the pilot programs which preceded it because of concerns by the bench and bar about maintaining the confidentiality of the data received, particularly during contested elections. It also reflected a lack of confidence in the ability of the Administrative Office of the Courts to design a fair system that was not unduly influenced by the results of cases decided and/or presided over by the judges being evaluated.

Not much has changed since 1998 or 1985. We still have contested elections of circuit court judges and we still don’t have a program of judicial performance evaluations in Maryland notwithstanding the quarter century of advocacy on both issues by the MSBA. What we do have, however, is clarity on the issue of whether we can have progress on one without the other.

Changing climate

Judicial accountability is much more of a public issue in the 21st century than it was in the 20th century. This has produced a number of changes, including the ABA updating its “Guidelines for Judicial Evaluation.” These guidelines were updated in several ways for several different purposes.  The original guidelines were designed only for judges running in retention elections. The decision was made to update them in a manner that would make them more universally usable whether for self-evaluation, evaluations used within the court system, or other official bodies, bar associations and other public groups.

This “updating” and “improvement” in methodology recognizes the political climate has changed in a way that should heighten our concern. Public and private interest groups increasingly use their own standards, interests and criteria in some instances blatantly to evaluate judges on the basis of how well the judges’ decisions conform to the individuals’ or organizations’ expectations.

The fact the number of these organizations is proliferating makes a more compelling case for a system of judicial performance evaluations which insures a judge’s inclination and ability to follow the rule of law will not be replaced as the primary criteria for evaluation with one that measures how closely the judge’s decisions and methods conform with the evaluators’ personal or organizational preferences and ideologies.

These changes also recognize that the legal system itself has changed dramatically in some ways in the 21st century. There are many more specialized courts, case management programs, technologies and a much broader mission including “problem solving” with a variety of dispute resolution techniques, resulting in a need to evaluate different courts and judges performing different functions using different tools and criteria.

In turn, we have increased the use of “behavior-based instruments” instead of scaled evaluations of qualities or characteristics. This reduces the chances for result-driven evaluations by substituting behavior-based questions – such as asking whether the judge “treated all of the parties with dignity and respect” – with “rating the judge’s impartibility on a scale of one to five.”

So, which comes first; abolishing contested circuit court judicial elections with their campaigns based on irrelevant political and ideological issues and accompanied by campaign financing which at best raises issues adversely affecting the public trust and confidence; or establishing a system of judicial performance evaluations providing for true judicial accountability? I think the latter, because it’s doable and because, as they say in politics, “You can’t beat someone or something with no one or nothing.”

Steven I. Platt, a retired associate judge on the Prince George’s County Circuit Court, writes a regular column for The Daily Record. He can be reached at [email protected].