A number of bills have already been filed in the 2014 session of the Oklahoma legislature that would alter the selection and tenure of the state’s judges. One such bill is HB 3380, which would establish a judicial performance evaluation (JPE) program for the state’s appellate and trial judges. Eighteen states currently have programs for evaluating judicial performance, whether to provide information to voters and others who reselect judges, to enhance public trust in the judiciary, or simply to encourage judicial self-improvement.
That is why we at IAALS have been surprised at the negative reaction among some in the Oklahoma legal community to the JPE proposal. According to one piece, HB 3380 would “eradicate Oklahoma’s separation of powers” and “take the philosophy of a constitutional democracy back more than 300 years.” Another describes the judicial evaluation board that would oversee the JPE process as “a watchdog to cast a political shadow over a judge’s shoulder every time a ruling is made.”
In reality, the program described in HB 3380 is remarkably similar to processes that already operate successfully—and with judicial support—in seven states where judges appear on the ballot, as they do in Oklahoma. The commission overseeing the JPE process would include members appointed by the governor and legislative leaders. Evaluation criteria would include integrity, legal knowledge, communication skills, judicial temperament, and service to the legal profession and the public, among others. The evaluation process would entail surveys of court users, courtroom observation for trial judges, written opinion review for appellate judges, consideration of case management statistics, and interviews with evaluated judges. In election years, the judicial evaluation board would provide evaluation summaries and retention recommendations for each judge to voters, and between elections, it would offer performance feedback based on interim evaluations. This is a typical JPE program—objective, broad-based, and apolitical.
Having been a judge of the Colorado Court of Appeals for twenty-five years, I am very familiar with a JPE process like the one that has raised concerns in Oklahoma. Each of my evaluations (there were three) were, in accordance with Colorado’s statutorily prescribed procedures, based upon neutral criteria related solely to my performance in the process of judging, not to the outcome reached in particular cases. I found it not only fair, but, indeed, necessary to instill public confidence, that I be held accountable in this manner; my judicial independence was neither compromised nor threatened.
I am not alone in my favorable assessment of such programs.
Prior to its 2011 National Conference on Evaluating Appellate Judges, IAALS conducted a survey of appellate judges in eight states who are subject to judicial performance evaluation. Nearly three-fourths of respondents reported that the evaluation process has no impact on their independence as a judge, and 16 percent reported that the process “enhances independence.” These judges also found JPE to be an important tool for voters, with 71 percent viewing evaluation reports as having “some influence” on voters’ decisions in retention elections and 17 percent describing them as having “a lot of influence.”
State-specific surveys in Colorado, Kansas, and New Mexico have included trial judges as well, and they offer similarly favorable assessments of their state’s JPE program. For example, in response to a 2008 IAALS survey, over 85 percent of Colorado trial judges described JPE as either “significantly beneficial” or “somewhat beneficial” to their professional development. Forty-four percent of trial judges said that the JPE process has no effect on their judicial independence, and another 29 percent of trial judges said that JPE increases their judicial independence.
It’s worth noting that there is already a process in place for evaluating the performance of appellate judges in Oklahoma, offered by the Oklahoma Civil Justice Council—a process that poses a far greater threat to judicial independence. These evaluations of judges of the supreme court and court of civil appeals are based solely on how these judges have ruled on issues of civil liability, with scores for each judge based on the extent to which their decisions have “had the effect of restraining the spread of liability.” The program does not include input from those who interact professionally with judges, review of written opinions for their quality and clarity rather than their policy outcome, or feedback for evaluated judges. At the very least, we see HB 3380 as a significant improvement upon the Oklahoma Civil Justice Council’s evaluation process.
Through our working group of JPE program coordinators and scholars around the country, we at IAALS will continue to monitor JPE developments in Oklahoma and provide expertise and resources. We are watching JPE proposals in Minnesota and Virginia, as well, and we hope that 2014 will be a banner year for the expansion of these programs!