Recent events have presented the unusual case of a Superior Court judge’s performance attracting high-profile media attention. Much more commonly, judges’ commendable or objectionable actions go unnoticed except by the directly-affected lawyers and parties. Judges miss out on constructive feedback that could have a beneficial impact on their conduct. The quality of justice, both actual and perceived, may suffer.
Pursuant to its mission to seek improvements in the administration of justice, the Santa Clara County Bar Association addressed this issue in 2013 by adopting its Judicial Assessment Policy and Procedures. The policy and procedures provide an important means by which attorneys can relate their experiences and opinions, positive or negative, regarding individual judges in Santa Clara County. The process is entirely confidential, underscoring its purpose to generate feedback for judges and help resolve tensions between judges and attorneys rather than to broadcast commentary to the public.
Unfortunately, this judicial assessment mechanism has been under-utilized since its inception. Only a single submission has been received to date, probably because most attorneys do not know about the procedure. This Message will try to remedy that problem by describing the Judicial Assessment Policy and Procedures and explaining how to submit feedback and what response to expect. Some history on the SCCBA’s judicial assessment efforts is also provided.
Submitting a Judicial Assessment to the SCCBA
The SCCBA’s judicial assessment procedure is broadly available, though only to (1) attorneys who (2) practice in Santa Clara County.
The procedure involves active participation by the SCCBA’s Judicial Assessment Committee (“JAC”), a body consisting of the SCCBA President (who serves as chair); the Presiding Judge of the Santa Clara County Superior Court; the Assistant Presiding Judge or another judge appointed by the Presiding Judge; four SCCBA attorney members appointed by the SCCBA President in consultation with the Presiding Judge; and the SCCBA’s CEO. The appointed attorney members serve staggered two-year terms. Committee members are subject to rigorous selection criteria, and any member whose participation in the review of information concerning a particular judge would create an actual or apparent conflict of interest must either recuse himself or herself from the review or resign from the JAC.
If you are an eligible attorney who would like to submit an assessment, you begin the process by visiting the SCCBA website and selecting “judicial assessment” in the “get involved” menu. From that web page, there are multiple “Submit an Assessment” links that will take you to a blank assessment form. You can also access a full copy of the Judicial Assessment Policy & Procedure from that web page.
The form asks you to provide your full name, contact information, bar number, and office location; identify the judicial officer and court to whom your feedback relates; describe your feedback at whatever level of detail you prefer; and indicate whether your submission is “Informational” or a “Request for Action.” All submissions are subject to an initial review by the SCCBA President and the CEO to determine the appropriate next steps.
If you make an Informational Submission, nobody other than the President and CEO will learn your identity without your consent. Your submission will be reviewed by the rest of the JAC with your identifying information omitted. You will be contacted about the submission only if the JAC determines that follow-up is needed, such as if the JAC believes the submission should be treated as a Request for Action.
If your submission is a Request for Action, your identity will be disclosed to the attorney members of the JAC, but not to the Committee’s judicial members or to anyone outside the JAC without your consent. Within two weeks after you submit the assessment form, you will be contacted to arrange a meeting between you and the attorney members of the JAC to discuss your feedback or concern. The attorney members of the JAC will then determine whether any action is warranted or whether your feedback will be received for informational purposes only. Any contemplated action will be explained to you, and no action will be taken without your consent. Any action requires approval by a majority of the attorney members of the JAC.
The SCCBA policy does not specify what the response should be to any particular submission, other than to prescribe the use of an “informal process for resolving attorney concerns.” The ultimate response is left to the discretion of the attorney members of the JAC. Possible responses include counseling the submitting attorney on how to address his/her concerns directly with the court; having an attorney member of the JAC or the full JAC discuss the matter with the Presiding Judge; or submitting the feedback to the affected judge with the approval of the Presiding Judge. As noted above, any action involving judicial members of the JAC or the affected judge require prior consent from the attorney who submitted the Request for Action.
I urge all attorneys in Santa Clara County to make use of the SCCBA’s judicial assessment procedure. If a judge handles a matter in a way you think should be commended or emulated, let us know with an Informational Submission. Conversely, if a judge behaves improperly—particularly with regard to a matter of demeanor or ethics—consider submitting a Request for Action. Either way, the court, the bar, and the public will be the better for it.
The SCCBA’s Judicial Assessment Efforts: Past and Future
The Judicial Assessment Policy and Procedures adopted in 2013 mark not the beginning, but the continuation of the SCCBA’s efforts to generate meaningful feedback regarding our local judges.
From 1989 to 2011, the SCCBA conducted an annual survey that asked members to evaluate judges on a range of measures. The SCCBA made the results publicly available and they typically were published in the local press. Eventually, however, the SCCBA decided that the survey was ineffective and not worth the expense. Too few attorneys completed the survey, meaning the results were not representative. They were not helpful to the judges, and they risked being mischaracterized or misunderstood by the public.
In lieu of the annual survey, the SCCBA implemented the assessment process described above. The goal is to generate constructive feedback and help resolve problems. The feedback may continue to be non-representative, but we expect it will carry greater weight having gone through a review and vetting process by a committee of respected attorneys. And the process now creates a mechanism for mediating and potentially resolving issues rather than simply passing along unfiltered opinions.
The Judicial Assessment Policy and Procedures also calls for the creation of a new judicial assessment poll, but one that will differ substantially from the earlier survey. Instead of asking members to rate individual judges, the poll is meant to solicit more general information about attorneys’ court experiences. The JAC is responsible for developing the questions, a task that has not yet been completed. Once ready, the poll will be conducted electronically and the results provided to the public as well as to the federal court clerk and the Presiding Judge of the Superior Court for dissemination to individual judges.
For our courts to operate with maximum effectiveness, a meaningful feedback mechanism is needed. The SCCBA believes it is in the best position to provide that mechanism for our local courts, and we will continue working to find the best means to do so. We are hopeful that the judicial assessment procedure and poll described above will fit the bill.
If you have any comments on this President’s Message, or any suggestions for the SCCBA, I encourage you to contact me at firstname.lastname@example.org or (650) 614-7431.