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Providing Effective Feedback to the Judiciary Remains a Challenge

Posted By Administration, Wednesday, October 10, 2012
Updated: Tuesday, May 13, 2014
by Guest Author President Elect Steve Haley 

The Santa Clara County Bar Association (“SCCBA”) for the past twenty-three (23) years has been providing feedback to state and federal judges in Santa Clara County by conducting a judicial evaluation survey every other odd numbered year and making available the results to the individual judges, the legal community and the public. The SCCBA has long been committed to having some method of public accountability for members of the judiciary given that they are public officials, subject either to election or appointment in the first instance and retention elections thereafter. In 1989 the SCCBA developed and implemented a judicial evaluation survey to provide feedback to the judges and for the public. Even with the SCCBA Judicial Evaluation Survey (“Survey”), providing meaningful evaluations of judges has been an ongoing discussion through the past two decades. The Survey instrument has been reviewed and changes made over these years. This discussion has now resulted in a shift in how the SCCBA will obtain feedback regarding the performance of the judiciary and individual judges in Santa Clara County.

The 2012 Board of Trustees of the Santa Clara County Bar Association (“2012 Board”) has voted to discontinue the SCCBA Judicial Evaluation Survey and directed SCCBA President Mindy Morton to appoint an Ad Hoc Committee to develop 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.

 BACKGROUND OF THE ORIGINAL SURVEY

The Survey was developed for a two-fold purpose: to provide a means of feedback to judicial officers regarding the opinion of the attorneys appearing in their court; and to provide transparency for the public for the evaluation of the judicial officers. The Survey was created by a data research company and conducted by that company until 2001, when the Survey was recreated as an on-line survey.

From 1990 to approximately 1995, Survey results were made public through press conferences; and hard copies were made available through the SCCBA to the public, press and attorneys. Legal newspapers and the Mercury News published articles about the survey results, using the results to rank the judges, which was not the purpose of the Survey, and was beyond the scope and design of the Survey. Beginning in 1995, due to concerns about the manner in which the Survey results were being used, the SCCBA issued a brief press release and made hard copies available. There has been no press coverage regarding the Survey since 1995 except for a minor article about the conduct of the Survey. Beginning with the 2001 on-line Survey, Survey results have been posted on the SCCBA website.

Participation in the Survey has been open to all attorneys practicing in Santa Clara County, regardless of membership in the SCCBA. The criteria for participation required that the attorney have appeared before the judicial officer being rated within the immediately preceding 4 years. Only judicial officers who had been on the bench for at least one full year were included in each Survey. Prior to 2001, the average number of participants in the Survey was approximately 300 attorneys. Subsequent to the adoption of the on-line Survey process in 2001, the average number of participants remained at approximately 300. In 2011, the Survey was distributed to 5,000 Santa Clara attorneys.

In 2011 concerns about the participation level in the Survey and the value of the results led to the 2011 Board of Trustees (“2011 Board”) deciding to conduct the 2011 Survey with the caveat that if the participation of eligible attorneys did not substantially increase, the 2012 Board should consider discontinuing the survey. The 2011 Board directed that the transmittal email to attorneys with the 2011 Survey encourage their participation and advise them that if the participation remained low, the Board of Trustees would seriously consider discontinuing the Survey. The participation in the 2011 Survey remained the same as prior Surveys.

Based on the 2011 Board’s decision regarding the Survey, 2012 President Mindy Morton appointed the Judicial Evaluation Survey Ad Hoc Committee (“Committee”) during the first quarter of 2012 and charged the Committee with developing a recommendation for the Executive Committee as to whether the Survey should be continued. President Morton appointed President-Elect Steven Haley as chair and appointed the following Committee members: Presiding Judge Richard Loftus, Hon. Tom Kuhnle, SCCBA Treasurer John Mlnarik, Trustee Kevin Hammon and James Towery, who was 1989 SCCBA President when the Survey was developed and implemented. SCCBA President Morton also served on the Committee.

The Committee met on three occasions over the course of the Spring and Summer. The Committee concluded that the Survey was no longer serving its initial purposes 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. The Committee determined that the efficacy of the Survey had been greatly diminished, based on the number of attorney participants. The Survey results were not of a statistically significant level to provide meaningful feedback to the vast majority of judicial officers. In light of these factors, the Committee concluded that the Survey in its current format had out-lived its initial purpose and usefulness.

The Committee made the following recommendations to the Board of Trustees:

1. There is continuing merit for maintaining a process for providing feedback from members of the bar to members of the judiciary regarding performance of the judiciary and/or its members. 2. The Survey should be discontinued in its current format. 3. The Board of Trustees should develop and adopt an alternate means to provide the feedback described in Recommendation #1.

In addition to the above recommendations, the Committee strongly encouraged the Board to include the following principles in any alternative feedback mechanism it adopts:

• That the feedback process includes input from both the bar and the bench; • That the feedback process maintain confidentiality for attorneys and judges; and • That the feedback process be expeditious.

[It should be noted that Judge Loftus did not participate in the meeting where the recommendations were developed and voted on, and did not vote on any of the Recommendations. Judge Kuhnle did not vote on Recommendations 1 and 3.]

The recommendations of the Ad Hoc Committee were approved by the SCCBA Executive Committee, and referred to the Board of Trustees. On September 27, 2012, the 2012 Board of Trustees voted to discontinue the Survey.

Pursuant to the direction of the Board of Trustees, SCCBA President Mindy Morton will appoint a new ad hoc committee to develop an alternative means for providing feedback from attorneys to judicial officers. The new ad hoc committee will provide a progress report to the Board of Trustees in March 2013.

Even with this shift in how the SCCBA will provide feedback to the judiciary, the SCCBA leadership remains committed to the notion that a meaningful process by which attorneys can provide such feedback is critical for the bar. This commitment meets a significant prong of the SCCBA’s mission statement, which is to improve the administration of justice. The administration of justice depends in large part on the quality of the judges serving our community. As the SCCBA Survey has shown over the past 23 years, the legal community perceives the Santa Clara County judges, state and federal, as highly qualified. The SCCBA wants to ensure that the kind of feedback and the way feedback is generated continues to encourage that quality.

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