JUDICIAL PERFORMANCE EVALUATION IN THE STATES … · · 2017-12-21JUDICIAL PERFORMANCE EVALUATION...

JUDICIAL PERFORMANCE

EVALUATION IN THE STATES

RICHARD C. KEARNEYUniveTsity of East Carolina, Greenville

INTRODUCTION

It should surprise no one that judges are receiving increasedpublic scrutiny. After all, most of the once-admired political, social,and economic institutions of the United States have fallen frompublic grace like so many leaves in the fall. Confidence in publicinstitutions, particularly in legislative and executive branch bureauc-racies, is disturbingly low. In response, supporters of the Reinventing(jovernment movement have sought, among other goals, to elevatethe image of public service through gains in efficiency and respon-siveness.

Performance measurement and customer-focused governmentare two of the many approaches that have been developed. If execu-tive and legislative branch personnel are to be held to certain publicperformance standards, then it is but a small step to include the judi-ciary within the purview of accountabiUty. Additional impetus for anevaluative examination of the judiciary has emerged from mediacoverage of court spectacles such as the O.J. Simpson murder ca.scand the Oklahoma City bombing trials, as well as from the populari-ty of television programs such as Peoples' Court and Court T.V.

Initiated in Alaska in 1976, judicial performance evaluation(JPE) is a relatively recent phenomenon that has been established oris under development in nearly half of the states. JPE has receivedtechnical support and encouragement from the American Bar Association's Special Committee on the Evaluation of Judicial Perform-ance (1985) which issued guidelines for evaluating judicial performance and from the National Center for State Courts which hadhelped distribute information and other assistance to the states onJPE methods and implementation.

The specific approach to appraising judges varies as to goals andpurposes among jurisdictions but two primary objectives prevail; i)to educate voters or appointing authorities, such as the governor

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who are charged with the retention or reappointment of judgesand/or 2) to improve the performance of sitting judges. States alsovary in which aspects of performance are being scrutinized and theevaluative techniques or method employed but all JPE states mustnecessarily confront the critical and competing values of judicialindependence versus judicial accountability.

This article discusses the diffusion of JPE in the states, brieflyassesses it in the context of professional performance appraisal, andeximiines some of its most important positive and negative aspects.

EVALUATION IN THE STATES

The formal assessment of judges' performance is largely a statephenomenon of the past two decades although JPE programs havebeen established in some municipal court systems (e.g., Dallas) andin the Navajo Nation courts. Approximately 23 states had some sortof JPE program in place or under development in early 1998. Writ-ten information was available on 17 of them, including all fullyoperational state programs. The following description and analysis isbased on published reports by JPE states and on articles jmd reportsin the professional legal literature.

Retention Election States. Five states with merit plan or "Mis-souri Plan" judicial selection systems have adopted JPE programswith the primary purpose of educating voters before judicial reten-tion elections in which they are faced with a typical choice of "shallJudge X be retained in Office?" (Table 1). In all 19 merit plan states,retention elections have been characterized by low voter turnout,blamed at least partly on apathy and ignorance as to the quality ofJudge X's performance. Little non-biased information has beenavailable on the judge's voting record in most states.

Surveys of attorneys conducted by the state bar association aremade publicly available in some states but such polls may sufferreliability and validity problems as well as a lack of credibility withthe voting public. Judges seeking reappointment to the bench inmerit plan states are constrained by ethics and information dissemi-nation costs from educating voters as to their records. Many of thosevoters who do cast ballots in retention elections do so in an informa-tion vacuum, unable to discriminate between the various judges onretention ballots.

Interestingly, it is commonly reported that about one-third of


retention election voters cast negative ballot recommendation on alljudges (Editorial, 1992). Where a majority vote is required for reten-tion, a well-organized, well-funded interest group that has beenoffended by even a single decision of a judge may be able to mustersufficient support to turn a judge out of office. Recent examplesinclude Supreme Court judges ousted by anti-abortion voters inFlorida (1990) and by death penalty supporters in Tennessee(1996).

Moreover, a very clear and intimidating message is dehvered lotheir judicial colleagues regarding the political acceptability of certain decisions, thereby, some would conclude, posing a threat tojudicial independence. Whereas judges are generally not opposed loprincipled, informed criticism of their decisions, they do not san~guinely tolerate "judge bashing" or personal attacks that they consid-er to be partisan or illegitimate (Pollack, 1996; Bright, 1997).

The retention-election states-Alaska, Arizona, Colorado, Ten-nessee, and Utah-have adopted JPE programs with dual objectivesaiming to provide balanced and objective information to voters onjudges being considered in retention elections while also seeking loimprove the performance of judges. Evaluation committees, typicallycomposed of attorneys, laypersons, and judges, assess a variety ofjudicial performance indicators including knowledge of and application of the law, communications skills, interpersonal skills, administrative abilities, time management skills, and, in some instances,integrity. Each of these programs is briefly discussed below with ihtexception of Tennessee's whose JPE program is too recent to havebeen assessed.

Alaska's pioneering program is conducted by an independeniconstitutional agency called the Alaska Judicial Council chaired bythe Chief Justice of the Supreme Court and composed of threeattorneys and three laypersons. All judges are evaluated even thosewho are retired but sitting protem. The appraisal process involvessurveys of attorneys, probation officers, and peace officers on a widerange of performance measures and written comments by attorneysfamiliar with the individual judge's performance. The judges them-selves submit information on factors relevant to their evaluation.Public records are reviewed on case management, reversals cmappeal, and other relevant data.

Input from the public is obtained through surveys of jurors andpublic hearings. All such information is reviewed by the JudicialCouncil which makes public its recommendations for or against


retaining individual judges at least 60 days before the retention elec-tion (Keilitz and McBride, 1992). Several judges have received nega-tive evaluations and/or been turned out of office by the votersduring the two decades that Alaska's plan has been in effect(Bremson, 1984).

The Arizona approach is directed by the Commission on JudicialPerformance Review and operated by the Administrative Office ofthe Courts. The Commission is composed of up to three attorneys,six laypersons, and four judges, all appointed by the Supreme Court.County committees are appointed in the state's two metropolitancounties, Pima and Maricopa ("Evaluating the Performance ...,"1993). Along with voter education, objectives include improvingjudicial skills, promoting the efficient assignment of judges, andimproving judicial education programs.

All judges appointed under the merit plan are included in Arizo-na's JPE program. Unlike in Alaska where judges are assessed onlyprior to their retention election, Arizona also requires a mid-termappraisal. The evaluative approach includes surveys of attorneys,litigants, witnesses, jurors, other judges, and additional individualswho have been in direct contact with the judges. Questions are askedabout judges' knowledge of the law, integrity, impartiality, judicialtemperance, and various performance-related skills.

Anonymous narrative comments are extracted from the surveysand provided to the judges, their chief judge, and to the Chief Justicebut not to the public. Public hearings are held as well and writtenpublic comments are received. The Commission compiles a reporton each judge under review and makes a finding as to whether or notthe judge meets performance standards. Judges may submit writtencomments or appear before the Commission after reviewing thereport. Then a final report is submitted to the public by the Com-mission (Arizona, 1993). As of 1994, none of the 51 judges reviewedhad failed to meet judicial standards ("Evaluating the Perform-ance ..., 1993:192).

In an effort to improve judicial performance in Arizona thatwould make professional performance appraisal advocates proud, aconference is held during each performance review period between a"conference team" comprised of three Commission members and thejudge being evaluated. The purpose is to identify areas for improve-ment and help the judge develop a written improvement plan whichis distributed only to the Chief Judge and the Chief Justice, althougha version without mentioning the judges' name may be given to the


Administrative Office of the Courts for the judicial education program development.

As in the case of Alaska, Colorado's JPE plan, implemented in1988, was created with the dual purpose of voter education andjudicial performance improvement. The Commission on JudicialPerformance Evaluation assesses supreme court and appellate courtjudges and oversees a decentralized program of 22 district commit-tees that evaluate trial court judges in each judicial district. The stateand district committees are made up of ten members each, six lay-persons and four attorneys appointed through quotas assigned to thegovernor, chief justuce, and presiding officers of the legislature.

The evaluation is conducted through surveys of jurors, litigants,witnesses, law enforcement officers, probation officers, social servicecase workers, caseload assessment, self-evaluation questionnaires,and interviews with individual judges. Evaluation criteria are muchlike those of Alaska and Arizona but also incorporate informationon preparation, attentiveness to and control over proceedings,docket management, sentencing practices, effectiveness in workingwith others, and service to the public and to the legal profession.Information is compiled and a draft report is sent to the judges forreview and comment. The committee's final recommendation possi-bilities are "retain," "do not retain," or "no opinion." During the firsithree review periods (1990-1994), 269 evaluations resulted in determinations that all but seven judges should be retained; no opinionswere issued on five. Only two judges failed to win retention ("Evaluating the Performance ...," 1996:190-191).

In Utah, JPE's primary goal is the self-improvement of judgeswith secondary objectives of voter education, increased publicawareness of the work of the judiciary and improved judicial educa-tion programs. The program is run by the State Judicial Council andJill judges are included in the assessment system. The Judicial Coun-cil appoints an evaluation committee consisting of six judges, threelawyers, and three laypersons. The evaluation is based on self-reporting by the judges and on surveys every three years of lawyerswho have appeared before the judge. Comparative results are dis-tributed to all evaluated judges and those receiving low ratings mayappeal to the Council. Certification recommendations, but not rawscores, are published in voter guides and in the newspapers. Nojudge had ever been "not certified" as of 19% (Ibid.).

New Jersey is an interesting case in which JPE is aimed principal-ly at improving judicial skills and performance, enriching judicial

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education programs, and improving the judicial assignment process.A secondary goal of New Jersey's JPE approach is to inform reap-pointment decisions for judges to be made by the governor withsenate confirmation. All trial judges are included in the scope of theevaluation.

The JPE is administered by the Supreme Court Committee onJudicial Performance, assisted by a Judicial Performance Commis-sion consisting of six retired judges. Surveys are completed by attor-neys and videotapes of court proceedings are reviewed by theCommission. Results are distributed to judges, the governor, and thesenate judiciary committee. Judges have a right to make commentsor objections to the reports before they are released to the governorand senate judiciary committee and are treated as confidentialpersonnel records not available to the public (Keilitz and Mcbride,1992:11-12).

Other states focusing on judicial self-improvement and for whichinformation was available to the author are Connecticut, Delaware,Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri,New Hampshire, New York, New Mexico, North Dakota, RhodeIsland, South Carolina, Vermont, and Washington.

As can be seen from Table 2, most of the plans share commonfeatures. The JPE programs in most of the states are the responsibil-ity of special committees of the supreme court. In other states (Con-necticut, North Dakota, Washington, New Hampshire), a judicialpanel, commission, task force or court administrative office operatesthe program. Maryland and South Carolina's efforts, as they arebeing developed in 1993, were oddities in that the state bar associa-tion controlled the process. New York's court watching program hasbeen operated by the Fund for Modern Court Courts since 1975.

JPE program goals in the states in this category are largely aimedat improving judicial skills and performance, improving judicialeducation programs, and assisting in the case assignments and courtassignments of judges. The scope of coverage varies although mostsitting appellate and trial court judges are included in the assess-ments. The frequency of appraisal also varies with some statesevaluating all or a portion of judges annually and others carrying outtheir evaluations less often. The evaluation methods typically involvesurveys of attorneys and several states also poll litigants and jurors.

New Mexico brings the views of court staff, law enforcementofficers, probation officers, caseworkers, and others into the process.Delaware, Illinois, Minnesota, and Vermont require judicial self-


assessments. Missouri provides for courtroom evaluations by anoth-er judge and by a trained communication skills assessor. Courtrecords are examined in several states and JPE results are confiden-tial and not for public release, although the judge's chief judge andthe chief justice are provided with results in most jurisdictions. As inthe case of the retention election states, data for improvement ofjudicial education programs are normally given to appropriateauthorities without the names of the evaluated judge attached.

New York's court monitoring system is worth special mentionDeveloped in 1975 by the nonprofit Fund for the Modern Courts,this program involves groups of volunteer citizens from across thestate who regularly observe court proceedings in their communitiesTheir findings and recommendations are published and distributedto court administrators, legislators, judges, members of the barassociation, civic groups, and the media. Approximately 600 courtmonitors were at work in 17 counties in 1997 (Brown, 1997:219).

The volunteers who are recruited by the Modern Courts stallthrough public announcements, local public officials, and contactswith nonprofit organizations and civic groups, received orientation incourt watching and handbooks describing the ins and outs of different types of trials and court activities. The volunteers are requestedto attend court one morning or afternoon per week for six monthsTheir task is to evaluate, on a standardized form, judicial demeanorand efficiency; how court personnel treat litigants, jurors, and wilnesses; delays and their apparent causes; the physical conditions o!the courtrooms; and other factors. At the end of the court-monitoring period, the volunteers gather to exchange observations and makerecommendations for improvement in the dispensation of justiceStaff of Modern Courts draft a report on the forms submitted by ihtvolunteers which is reviewed by the volunteers, revised, and published.

According to the Fund for Modern Courts, the program hasachieved notable results in improving the quality of justice in Nev.York. The organization cites among its major impacts user-friendly,physical and procedural improvements in the courtrooms and great-er sensitivity of court personnel to citizen needs. For example, childcare facilities have been created in the courts, waiting times forjurors have been reduced and juror pay increased, informationkiosks have been installed in courtroom, lobbies, and judges artmore likely to commence proceedings at the scheduled time orexplain delays (Brown, 1997:220-221).


DIFFUSION OF JPE PROGRAMS

The diffusion of the state policy innovation of judicial perform-ance evaluation has proceeded steadily over the past twenty years. Aglance at the map indicates some regional patterns of adoptionalthough JPE representatives are situated in all regions from thegeographic extremes of Alaska and Hawaii to the heartland ofMissouri. Most notably, however, five of the six New England statesare adopters with Maine being the only holdout while only twosoutheastern states have established JPE programs.

Examination of two operationalizations of political culture, afactor that is generally associated with regionalism, is more enlight-ening. Elazar's (1984) measure of political culture categorizes thestates into moralistic, individualistic, and traditionalistic cultures. Ofthe JPE states (excluding the atypical case of New York where thecourt watching program was inspired and established by a nonprofitorganization), the breakdown is as follows: 41 percent of the moral-istic political culture states have JPE programs; 65 percent of theindividualistic states and 25 percent of the traditionalistic states.

A reformulation of Elazar's typology by Johnson (1976), usingreligious census data for the states as indicators of political culture,shows that 42 percent of the moralistic states are JPE adopters. 50percent of the individualistic states and only 8 percent of the tradi-tionalistic states. What stands out is a pattern of relative non-adop-tion by the traditionalistic states of the old Confederacy and theSouthwest. Thus, States characterized by both adherence to the exist-ing social and economic order and the rule by elites have been lesslikely to, in effect, challenge the established powers of judges thanstates exhibiting other dominant cultures.

This conclusion receives indirect support from a comparison ofthe mean scores of the adopters and non-adopters on the politicalideology scores of the states calculated by Erikson, Wright, andMclver (1993). The states with JPE programs tend to be more polit-ically liberal than non-adopters. With lower scores indicating greaterpolitical liberalism, adopters have a mean score of .114 compared tonon-adopters' mean score of .176.

There appears to be no discernible partisan pattern to the diffu-sion of JPE innovation is party control of state legislative branch inthe first half of the 1990s is examined. Of the 21 states included inthe present analysis (again, excluding New York, Maryland, andSouth Carolina), eight were predominantly Democratic in the state


legislature, eight were predominantly Republican, and five weredivided fairly evenly between the parties.

A more time-sensitive analysis would be required to determine ifthe party in power at the time of JPE adoption is an important fac-tor. More likely, JPE is a policy innovation with broad appeal thatcrosses party line. One would suspect that legislative disagreementswith state court states, including Delaware, Hawaii, Illinois, Mis-souri, New Hampshire, New Jersey, New Mexico, Rhode Island, andVermont, JPE was initiated and adopted by the state supreme courtand in two states. South Carolina and Maryland, the process wasinitiated and authorized by state bar associations.

In some cases, it is likely that JPE adoption was a preemptive actdesigned to stave off legislative intrusion into the affairs of the judiciary (Griffin, 1995). For example, it is likely that highly visible casesof corruption and criminality of supreme court justices convinced theRhode Island Supreme Court to take action before the legislaturedid.

Examination of the relationships between the system used toselect judges on the appellate courts and the adoption of JPE programs is more fruitful than partisan makeup. New York has a mixedjudicial selection system for appellate judges and Maryland's JPEprogram, like South Carolina's, is driven by the state bar associationDropping these three states from the analysis leaves 21 JPE states

Thirteen adopters have some type of merit selection plan andcomprises 62 percent of all states with merit selection systems. Threeof the four states using gubernatorial appointment for appellatecourt judges have established JPE programs but only five of the 24states with partisan or nonpartisan election systems are adopters olthis judicial policy innovation.

Thus, it appears that states that elect their appellate judges aremuch more likely to adopt JPE plans than states that select theirjudges through merit plans or gubernatorial appointment. Onewould logically assume that legislative and supreme court decision-makers in most of the elective states believe that judicial electionsgive voters ample opportunity to remove those judges who haveperformance or behavioral problems. This in itself presumes, ofcourse, that the voters have sufficient objective information torender intelligent and informed decisions as to who should stay andwho should pack his or her judicial bag.


THE EVALUATIVE PROCESS IN JPE

Performance appraisal is a somewhat controversial topic inAmerican public (and business) administration even though its use isubiquitous in organizations throughout the United States. Theprocess has gradually evolved from one in which supervisors usedchecklists rather casually to appraise such virtues as good demeanor,neat appearance, and respect for authority to contemporary ap-proaches that emphasize performance measurement, managementby objectives, and continuous improvement. Often performanceappraisal is linked to some type of merit pay or par-for-performanceplan. For a variety of reasons, results of pay-for-performanceschemes in the public sector have been far from encouraging (Perry,1996).

Performance appraisal is fraught with many potential pitfalls andproblems. Measurement errors and biases, problems of validity andreliability are common. Feedback sessions designed to set goals andobjectives and improve employee performance are difficult formanagers to handle effectively. Dysfunctional employee behavior-rather than performance improvement—may be the unfortunateresult. Such concerns have led scholars to advocate abolishing per-formance appraisal entirely (Fox, 1991; Thayer, 1981).

To many scholars and practitioners, however, performanceappraisal, despite its flaws, has some important virtues. There is anatural and necessary process of judging others in our work envi-ronment and it is better to formalize and standardize than tomanage arbitrarily. When done properly, performance evaluationcan lead to improvements in employee and organizational perform-ance (Lovrich, 2996).

An interesting approach for examining the various assumptionsand application of JPE is to juxtapose them against the principles ofprofessional performance appraisal that are generally recommendedby scholars and practitioner-experts for government organizationsthroughout the United States. Recent research indicates that thespecific technique used to evaluate performemce is relatively unim-portant in comparison to the evaluative process. So long as theresearch and data-gathering techniques are valid and as free frombias as possible, and a positive, goal-setting approach is emphasizedin the performance apprstisal session, the process can be productiveand effective in improving employee performance.

An effective process (one maximizing performance improvement


while minimizing the dysfunctional individual and organizationaloutcomes) is believed to be one in which performance standards areclear and the person or persons conducting the evaluation are trust-ed. Research also indicates that performance appraisal is more likelyto be effective when those who are evaluated participate in theprocess from the design phase through implementation and whentop management takes the process seriously (Schay, 1993; Laurent.1997).

How do JPE efforts stack up against the principles outlinedabove? Not surprisingly, rate variably. One complicating factor isthat JPE has different objectives in the participating states. Alsothere is disagreement as to who constitutes the judiciary's "custom-ers." Some states cast their evaluation nets into an ocean of customers as indicated by the surveys of everyone from attorneys, otherjudges, litigants, court personnel, and jurors to witnesses, socialworkers, and peace officers. One is reminded of the "360 degreeperformance appraisal technique that is increasingly popular inbusiness and government organizations. Other states are restrictivein their definition, limiting input to attorneys only or to a smallsubset of potential customers of the courts.

In such a variable environment within a paucity of systematicresearch, it is difficult to determine how clear and well-defined thestandards are for JPE or how clearly performance expectations arccommunicated to judges. Some states do specify performance standards and judges are certainly aware of them. In other cases, one getsthe impression that surveys of various users of the courts constitute ,-•fishing expedition trolling about for evidence of judicial misbehavioror performance problems.

Performance appraisal theory is very clear about the benefits o!feedback and coaching for performance improvement. All JPE statesshare evaluation data with the judges who have been assessed and allor most states give the judges an opportunity to review and commenton preliminary findings or draft reports. But it appears that only afew JPE programs provide for couching or goal setting. The Arizonaplan is the model in terms of communicating feedback through athree-person committee that works with the individual judge todevelop a self-improvement plan. The Arizona JPE, used in thecontext of retention elections, also takes place twice--at the midpointof a judge's term and again just before the retention election.

Thus, a judge has the benefit of a mid-term review of performance indicators and the opportunity to improve or correct


of his or her performance before the preelection evaluation. In thenon-retention election state of Rhode Island, each judge is evaluatedbiennially. In other states, evaluation take place every year. As ageneral rule, frequent feedback on a judge's performance should bemore useful than assessments conducted many years apart.

The effectiveness of performance appraisal is enhanced by sub-ject participation, not only in the sharing of final results but also atthe front end, designed phase of the process. It is believed that suchparticipation encourages judges to "buy in" to the evaluation and tobe accepting of the validity of the results. In other words, effectiveJPE programs are likely to involve judges in the evaluation methodand evaluative process. In the majority of cases, the state supremecourt played a leadership role in developing JPE with judges pre-sumably included in the design phase. In Colorado, for example,judges were directly involved in developing a list of evaluative crite-ria, determining who the evaluators would be for JPE, and in design-ing other key components of the program (Sterling, Stoff, andWalker, 1981).

The continuing involvement of individual judges in JPE isachieved in those states, including Arizona, Colorado, and NewJersey where they are granted opportunities to review evaluationfindings and comment on them. Similarly, a serious review anddiscussion of evaluation results by a judge's chief justice or supervis-ing justice implies that the process is important and taken seriously.What one cannot determine at present because of the paucity ofpublished research on JPE is the nature or quality of the evaluationinterview. Lessons from elsewhere in the public sector indicate thatmany supervisors are poorly prepared for such encounters and tendto give them less attention than they deserve.

Feedback, participation, and coaching are not as important forthe JPE goals of assigning judges, managing caseloads, or informingjudicial education programs. Here, survey and data analysis resultscan be applied directly to the needs of the courts. But even for thesepurposes the views, observations, and experiences of judges can bevery useful.

INDEPENDENCE AND ACCOUNTABILITY

The importance of an independent and objective judiciary, freefrom political control or manipulation and isolated from the vagariesand temporalities of public opinion, has been an important value in


the United States since the issue was first brought to light in FederalistNo. 78 by Alexander Hamilton. For Hamilton (1961), electing judgesor appointing them for fixed terms would mean that judges wouldhave too large a likelihood to consult popularity to justify a decisionthat should properly be grounded in the Constitution or federalstatutes. Thus, judicial independence is considered an important,continuing concern and, as such, is taken very seriously by the feder-al judiciary. Its high salience is validated through the constitutionalprovision for lifetime appointment of judges by the President withSenate consent. Although removal for misbehavior, criminal convic-tion or other serious problem is possible, it occurs extremely rarely.

However, judicial tenure is variable in the states which rely ontheir own constitutions for guidance in the matter of selecting andretaining judges. Judicial terms run from a four-year election cycleto quasi-permanent appointment in merit selection states where onlya retention election stand between a judge and lifetime service. Statejudges are generally more visible to the people than federal judges interms of deciding cases that have direct relevance to citizens.

Although it cannot be said that judicial independence is anunimportant value in the state courts, it clearly is not as salient as itis in the federal courts. Rather, the values of political accountabilityand responsiveness to the electorate run strong in the states. Courts,as policy-making bodies and authoritative renderers of judgments incivil and criminjj affairs, are treated as an integral part of the statepolitical system. As such, they must be held more accountable to thecitizens whose lives may be affected than are the almost-untouchablefederal judges.

The conflict between judicial independence and accountabilityhas been resolved in different ways by the states that have adoptedjudicial performance evaluation programs. Most of the state programs dance lightly around any inherently controversial assessmentof the quality of judges' decisions on the law in the cases heard bythem. As noted above, judges have strongly resisted attempts bylawyers, citizens or anyone else, other than a superior appellatejudge, to look over their shoulders. None of the JPE programsappear to be truly intrusive in that sense.

Any appraisals of the quality of judicial decision-making that dooccur, such as the retention-election states, are indirect and confi-dential. These appraisals do, however, provide voters with usefulfeedback about a judge's performance in other areas such as casemanagement, court administration, and the treatment of the wide


variety of the court's "customers." And it appears that all of the JPEprograms furnish individual judges with at least some feedback thatcan facilitate self-improvement.

The lack of transparency of JPE data generally protects theindependence of the judiciary in keeping most evaluative resultsconfidential. Even in the retention-election states, where results arepublished to educate the voters, potentially damaging, specificremarks from survey respondents are not reproduced. Rather,summary assessments are issued. In the second category of states,those that evaluate judges to enhance performance improvement,the public received little or no information about evaluation results.If evaluative data were widely released, it is unlikely that judgeswould willingly participant in JPE on these states. The question ofwhat to do or what not to do with JPE information as well as whatform it should take, remains important. It will be interesting to see ifthe non-transparency of JPE will be challenged in the future underthe Freedom of Information Act.

POSITIVE AND NEGATIVE IMPLICATIONS

The potential benefits of JPE, as noted above, are substantial. Ifthe process is scientifically designed and implemented, with a soundevaluation method that is applied consistently, valid and reliableresults should be obtained which can serve several purposes includ-ing voter education, judicial self-improvement, and identification ofjudges with behavioral or other problems. For example, a judge whoacts boorishly or is insensitive to women or people of color or who isa sexual harasser, is likely to be identified whether or not he is dealtwith effectively and made accountable for his actions in anothermatter (Kearney and Sellers, 1997).

JPE makes the judiciary more sensitive to the needs of the judi-ciary's customers including lawyers, litigants, witnesses, jurors, andcourt employees. It can lead to common sense improvements in thecustomer-friendliness of the courts for all sorts of individuals whowalk through their doors. As the chairman of the ABA's Commis-sion on the Evaluation of Judicial Performance stated when theorganization issued its Guidelines for Evaluating Judicial Perform-ance, "The Quality of Justice patently hinges, in large measure, onthe quality of our judges, and upon the nature of the actions of thosejudges who mete put justice in America" (ABA, 1985:1).

In spite of the promise of JPE, it does have some potential short-


comings. First, there are resource issues. Particularly in states orjurisdictions where there is a large bench and/or the JPE processinvolves many data sources, existing court personnel may be unableto devote sufficient time to implementation. If the legislature docsnot provide adequate funding for JPE staff and evaluation implementation, already underfunded courts will suffer further fromresource scarcity. This is reported to have occurred in Colorado("Evaluating the Performance ...," 1995:194).

Second, judges may resist JPE if they feel that the process !sunfair. For instance, if judges are criticized for case backlogs thatthey cannot control because of an infusion of cases or a shortage o!judges, they may become resentful (Mahoney, 1989). Or, if surveyresponse rates are too low to be representative of the surveyedpopulation, yet the evaluation committee reaches negative conclusions, judges will feel violated. The quality of the evaluators themselves mat be called into question unless they have first-hand knowl^edge of the judiciary and the confidence of the judges (Griffith,1993).

Third, as in the case of any type of performance appraisal, if JPEis done poorly and unscientifically and if supervising judges or,indeed, the judges being evaluated, do not take the process seriously,it is doomed to failure. Similarly, if the public senses that JPE is asmokescreen to protect judges instead of to improve them, respecifor the judiciary will weaken. Finally, with respect to retention-election state, judicial decision-making could be affected by JPE withhigh public visibility and controversial dimensions that are likely laprovoke a backlash against certain types of decisions.

There is little hard evidence on the outcomes-positive or nega-tivc-of judicial performance appraisal. Future research shouldaddress the key issues surrounding this state innovation, to informexisting programs on how to improve implementation, and to advisenon-adopting states on JPE program possibilities that balance thedual needs of an independent yet accountable judiciary.

REFERENCES

American Bar Association (1985). GUIDELINES FOR THE EVALUATION Ol

JUDICL\L PERFORMANCE, Washington, D,C: Author

Bremson, Francis L, (1984), "Fivaluating Judicial Performance: Redefining lhe

Process," STATE COURT JOURNAL 8:42^5

Bright, Steven II, (1997), "Criticism of Judicial Decisions," JUDICATURE 80 ,pmi


(January-February): 165-172.Brown, Gary S. (1997). "Court Monitoring." JUDICATURE 80 (March-April):219-

221."Evaluating the Performance of Judges Standing for Retention" (1996). JUDICA-

TURE 79 (January-February): 190-197.Elazar, Daniel J. (1984). FEDERALISM: A VIEW FROM THE STATES, 3rd. New

York: Harper and Row.Erickson, Robert S., Gerald C. Wright, and John P. Mclver (1993). STATEHOUSE

DEMOCRACY. New York: Cambridge Univerity Press.Fox, Charles J. (1991). "Employee Performance Appraisal: The Keystone Made of

Clay,: in Carolyn Ban and Norma M. Riccucci (eds.). PUBLIC PERSONNELMANAGEMENT: CURRENT CONCERNS AND FUTURE CHALLENGES.New York: Longman.

Griffin, Jacqueline R. (1995). "Judging the Judges." LITIGATION 5 (Spring):Hamilton, Alexander, James Madison, and John Jay (1981). THE FEDERALIST

PAPERS. New York: New American Library.Johnson, Charles A. (1976). "Political Culture in the American States: Elazar's

Formulation Reexamined." AMERICAN JOURNAL OF POLITICAL SCIENCE20 (November-December):491-509.

"Judicial Performance Evaluation" (1997). RHODE ISLAND BAR JOURNAL(April): 1-14.

Kearney, Susan and Judith White (1996). "Sex on the Docket: Reports of State TaskForces on Gender Bias." PUBLIC ADMINISTRATION REVIEW 56 (November-December):587-592.

Keilitz, Susan and Judith White McBride (1992). "Judicial Performance EvaluationComes of Age." STATE COURT JOURNAL (Winter):5-13.

Laureat, Anne (1997). "Performance Appraisal," in Steven W. Hays and Richard C.Kearney (eds.). PUBLIC PERSONNEL ADMINISTRATION: PROBLEMSAND PROSPECTS. Englewood Cliffs, NJ: Prentice-Hall.

Mahoney, Anne Rankin (1989). "Citizen Evaluation of Judicial Performance: TheColorado Experience." JUDICATURE 72 (December-January):208-212.

Pollack, Louis H. "Criticizing Judges." JUDICATURE 79 (May-June):291 =302.Sterling, Joyce, E. Kenneth Stott, and Steven Walker O1981). "What Judges Think of

Performance Evaluation: A Report of the Colorado Survey." JUDICATURE 61(April):414.424.

Schay, Brigitte W. (1993). "In Search of the Holy Grill: Lessons in PerformanceManagement." PUBLIC PERSONNEL MANAGEMENT 22 (Winter):649-668.

Thayer, Frederick C. (1987). "Performance Appraisal and Merit Pay Systems: TheDisasters Multiply." REVIEW OF PUBLIC PERSONNEL ADMINISTRATION7 (Spring):36-53.

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