by Steven B. Haley, Esq., Groom & Cave, LLP
2013 SCCBA President
The Santa Clara County Bar Association 2013 Board of Trustees (“BOT”) has adopted a new Judicial Assessment Policy & Procedures (“Policy”).
The 2012 SCCBA BOT determined that the former survey was no longer serving its initial purpose of providing meaningful feedback to judicial officers regarding the view of the attorneys appearing in their court, and of providing an effective means for the public evaluation of the judicial officers, and decided to discontinue the survey. The 2012 BOT directed the SCCBA President to appoint an Ad Hoc Committee formed for the purpose of developing recommendations for the adoption of alternate means for the members of the Bar to provide feedback to the judiciary regarding the performance of the judiciary and/or individual judges.
2013 AD HOC COMMITTEE
As 2013 President, I appointed an Ad Hoc Judicial Evaluation Committee (“Committee”), chaired by Immediate Past President Mindy Morton with members of the SCCBA and the bench, including Presiding Judge Brian Walsh, Judge James Towery, Judge Tom Kuhnle, Kevin Hammon, Nicole Isger, John Mlnarik, Carlos Orellana, Dianne Sweeney and me, and staffed by SCCBA CEO & General Counsel, Chris Burdick. The Committee was charged with providing: 1) a meaningful assessment mechanism for attorneys in a useful format; and 2) a confidential and widely available method of delivering attorney concerns to the Judiciary that does not interfere with the first goal.
The Committee met throughout 2013, and submitted a proposed policy to the SCCBA Executive Committee. The Executive Committee approved the draft policy at its September 11, 2013 meeting, subject to certain amendments. The 2013 BOT adopted the amended proposed Policy at its September 26, 2013 meeting. The critical elements of the policy are outlined below.
JUDICIAL ASSESSMENT COMMITTEE
The Judicial Assessment Committee (“JAC”) shall be chaired by the current SCCBA President. The Committee shall be comprised of: the current SCCBA President; the Presiding Judge of the Superior Court; the Assistant Presiding Judge or another Judicial Officer appointed at the discretion of the Presiding Judge; the SCCBA’s Chief Executive Officer; and four attorney members to be appointed by the SCCBA President in consultation with the Presiding Judge.
The appointed attorney members of the JAC shall serve staggered two year terms; i.e., two appointed positions to expire in even-numbered years; and two appointed positions to expire in odd-numbered years. Two attorneys appointed to the initial JAC shall serve a one-year term only, and two shall serve a two year term. The Procedures set forth additional requirements to be considered in connection with the attorney appointments.
JUDICIAL ASSESSMENT POLL
The Policy provides that an annual Judiciary Assessment Poll (“Poll”) shall be conducted for the purpose of providing general attorney feedback to the bench regarding the overall performance of the Judiciary in Santa Clara County, both state and federal. The Poll shall consist of five to seven questions relating the attorneys’ court experience. The Poll shall be disseminated electronically, with results tabulated electronically. Poll responders shall be anonymous.
The results of the Poll will be provided to the Clerk of the Federal Court for dissemination to the federal district, magistrate and bankruptcy judges. The Poll results shall also be disseminated to the Presiding Judge of the Superior Court for dissemination to the superior court judges, and shall be made publicly available on the SCCBA’s website.
The Poll is neither designed nor expected to provide a statistically significant reflection of the opinions of Santa Clara County attorneys as to the judiciary. The Poll results shall not be construed or deemed to reflect the opinion of the SCCBA as an entity.
The Poll questions will not be designed in such a way as to solicit responses related to any individual judge. In the event that an attorney desires to provide a comment regarding a particular judicial officer, the attorney will be directed to submit a Judicial Assessment Form, as described below.
CONFIDENTIAL PROTOCOL FOR CONCERNS ABOUT JUDICIAL OFFICERS
In addition to the Poll, the Policy provides an opportunity and a protocol for attorneys to voice concerns and/or positive feedback related to an individual judge.
A Judicial Assessment Form (“Form”) shall be made available to attorneys to provide them with a confidential means of submitting to the JAC their feedback regarding an individual judge. The Form will only be available to attorneys practicing in Santa Clara County, but is not limited to attorney members of the SCCBA. In order to submit the Form, attorneys must provide their names, contact information, and State Bar numbers. Information provided on the Form shall be confidential between the submitting attorney (“Submitting Attorney”) and JAC members, and will not be communicated to persons outside of the JAC without the consent of the Submitting Attorney. Participation in this process does not create an attorney-client relationship with either the JAC or the SCCBA. The Form shall be available on the SCCBA’s website and the availability of this process shall be communicated on a regular basis to the SCCBA membership.
The Policy provides for two types of submissions, i.e., an “Informational Submission” or a “Request for Action”. In the case of either type of submission, the initial review of the submission (“Initial Review”) shall be limited to the JAC Chair and the SCCBA CEO.
Following the Initial Review of an “Informational Submission”, the substance of such submission may be reviewed by the JAC. In the case of an Informational Submission, i.e., information submitted for informational purposes only, the Submitting Attorney will be contacted by the JAC only if the JAC determines that further follow up is necessary. The identification of the Submitting Attorney will be withheld, absent the consent of the Submitting Attorney to disclosure of his/her identity.
Within two weeks following the Initial Review of a “Request for Action,” the JAC Chair and/or the SCCBA CEO will contact the Submitting Attorney to arrange a meeting of the Submitting Attorney with the attorney members JAC, absent the judicial members of JAC. After meeting with the Submitting Attorney, the attorney members of the JAC will determine whether any action is warranted or whether the Submitting Attorney’s concern will be received for informational purposes only. The JAC Chair and/or SCCBA CEO will explain any contemplated action to the Submitting Attorney. No action will be taken by the JAC without the Submitting Attorney’s consent. The JAC will not be obligated to take action unless the majority of the JAC agrees to take action with the Submitting Attorney’s consent.
Only the attorney members of JAC will decide whether the Submitting Attorney’s “Request for Action” warrants action by the JAC. This decision is not a legal opinion or a determination as to the merits of the attorney’s concern, and is within the sole discretion of the attorney members of JAC.
If the attorney members of the JAC determine that action is warranted, the proposed action will be tailored to the needs of the particular case. The JAC will employ an informal process for resolving attorney concerns. Beyond the guidelines discussed above, there is no specific process or set of rules that the JAC must adhere to in addressing attorney matters submitted through the Form.
Possible actions by the JAC may include, but are not limited to, the following: 1) providing counseling/mentoring to the Submitting Attorney about how to address the concerns without discussions with the involved judge or Presiding Judge; 2) discussing the matter with the Presiding Judge by an attorney member/s of the JAC with consent of the Submitting Attorney but without the Presiding Judge discussing the matter with the involved judge; or 3) discussing the matter by the full JAC with the Presiding Judge with the consent of the Submitting Attorney that the matter be discussed with the Presiding Judge and/or with the involved judge.
The JAC shall prepare an annual report related to the confidential Judicial Assessment Form. The report will include: 1) the number of Forms received as “Informational Submissions”; 2) the number of Forms received as “Requests for Action”; and 3) the outcomes of Forms received as “Requests for Action.” The report should indicate whether any action was taken, and, if appropriate, provide a brief description of any action taken. The report shall not include any personal or identifying information pertaining to any participating attorney or judge.
The Judicial Assessment Poll and the Judiciary Assessment Form and process shall be reviewed no later than two years after implementation to determine whether these measures should be continued, changed and/or abandoned.
Attorneys are welcome, at all times, to present their concerns to their own legal counsel, to the judge involved, to the Presiding Judge, to the Commission on Judicial Performance, to the California Judges’ Association Ethics Hotline, or to any other person or entity. (Attorneys presenting their concern to the judge involved should be mindful of rules regarding ex parte communications.) The Form is not a substitute for any other established forum for submitting formal or informal complaints. The Form is not intended to toll any statute of limitations.
Those of us who practice in Santa Clara County are fortunate to have an involved and responsive Judiciary. The purpose and intent of the Policy is to nurture and sustain the longstanding tradition of the close Bench-Bar relationship that we enjoy in Santa Clara County, by providing a method for meaningful feedback and communication between the Bench and the Bar on matters of mutual interest and concern.