When judges are judged, tension can follow
By FRANK GREEN Richmond Times-Dispatch May 15, 2016
COURT GAVEL
TIMES-DISPATCH
COURT GAVEL
×
1 remaining of 5
Thanks for reading the Richmond Times-Dispatch! You have nearly reached the limit of 5 free articles every 30 days. Please consider a digital RTD subscription for only $8.99 per month. Click here to subscribe. If you’re already a subscriber, click here to log in.
WILLIAMSBURG — Virginia is one of two states where judges are elected by legislators, and the resulting tension is evident when it comes to evaluating courtroom performance.
That spilled into the open last week at the state’s annual judicial conference in Williamsburg, where the chief justice of the Virginia Supreme Court and the heads of the General Assembly courts committees took questions from concerned judges about the complex and evolving program used to evaluate jurists on the job and for reappointment.
“This Judicial Performance Evaluation, while it does provoke some angst, what it’s designed to do is to make us better. And who among us does not want to be better?” Supreme Court Justice Cleo Powell said at the conference.
“We understand how unnerving it can be when you’re getting that evaluation,” she said.
Queries from the judges to the panel members included concern about attempts by legislators to improperly influence pending court cases; whether proper but unpopular judicial decisions play a role in reappointment; and disbelief that “remarks” made by anonymous evaluators are not seen by the legislators.
Del. David B. Albo, R-Fairfax, and Sen. Mark D. Obenshain, R-Rockingham, chairmen of the courts committees, took questions from some of the roughly 200 current and retired circuit court judges about the relatively new Judicial Performance Evaluation.
Supreme Court Chief Justice Donald W. Lemons told judges that the main focus of the program is to understand better how they come across in the courtroom. But he told the judges they also need to understand the constitutional appointment responsibility of legislators in Virginia, which is the last state other than South Carolina where lawmakers elect judges.
“The Judicial Performance Evaluation program is here to stay,” he said. “We need to make it a good thing. We need to work on it. We need to express ourselves, to ask the kinds of questions that you want to know about.”
***
Judicial terms in Virginia range from 12 years for Supreme Court justices to six years for general district and juvenile and domestic relations district court judges.
In a program begun in 2006, judges are evaluated anonymously each year by lawyers — circuit court judges also are evaluated by jurors — across the state. This year, between 130 and 150 were evaluated.
Currently, members of the Virginia Court of Appeals and the Virginia Supreme Court are not evaluated. But judges in circuit courts, general district courts and juvenile and domestic relations district courts are coming under the program’s scrutiny.
Judges are evaluated three times during their first term and twice each term thereafter. The final evaluation in each term goes to General Assembly members.
The program, run by the Virginia Supreme Court, has an annual cost of $240,000 and was suspended for four years starting in 2009 because funds were not appropriated. It resumed in 2014.
The evaluations rate judges on such qualities as courtesy, patience, knowledge of the law, fairness and promptness. Results on a five-point scale ranging from “never” to “every time” are computed by Virginia Commonwealth University’s survey laboratory and sent to the judge and a “facilitator” judge; those jurists watch the evaluated judges in their courtrooms and then meet with them to review the evaluations and offer guidance.
The final evaluation of a judge’s term also is made public. Other evaluations are confidential, exempt from the Freedom of Information Act and not seen even by the Virginia Supreme Court.
***
Over the decades, if not centuries, Virginia legislators have not hesitated to flex political muscle when it comes to the judiciary.
This year, for the first time in more than a century, the GOP-controlled legislature tossed a justice off the high court — Jane Marum Roush of Fairfax — by refusing to make permanent her interim appointment by Democratic Gov. Terry McAuliffe, even though Republicans conceded she was qualified.
Also during this year’s General Assembly session, the GOP leadership turned back efforts to impeach General District Judge Robert B. Beasley Jr., the former Republican commonwealth’s attorney for Powhatan County.
Beasley came under fire from clerks who complained about sexual jokes, remarks and images that had been emailed and posted in offices.
The judge wrote letters of apology to four clerks in the counties of Powhatan, Amelia and Dinwiddie for “offensive” and “inexcusable” conduct, and he has had sharp restrictions on where he can preside placed on him by the Supreme Court after he returned to the bench in February following a 10-week suspension.
Albo said in March that Beasley’s behavior was unacceptable and predicted his reappointment proceeding in four years would be difficult. But Albo said the behavior that legislators were told Beasley displayed did not come close to reaching that which is required for impeachment.
Beasley’s problems early in his first term as a judge were not addressed through performance evaluations. He was investigated by the highly secretive Judicial Inquiry and Review Commission, which will not acknowledge anything about the matter.
At Tuesday’s panel on judicial review, Albo was asked by a judge what factors were most important when lawmakers consider reappointment. Albo immediately said: “Demeanor, demeanor, demeanor, demeanor, demeanor, demeanor, demeanor — and knowledge of the law.”
Albo said the initial reports under the review program were informative.
“Two years ago, we had five bad people. Their scores were abysmal — like in the 40s. And everybody else was in the 70s or 80s — which tells me that almost everybody’s doing a fantastic job, but there were some bad apples,” he said.
“Then when you look at the bad apples, every single one of them had, ‘bad demeanor.’ And every time someone has bad demeanor, they also get rated ‘bad on the law,’” Albo said.
Last session, every judge up for reappointment was approved, he said. The previous year, five judges failed.
“The people who have a problem with us are the people who ... have lost their patience,” Albo said.
“It all comes down to being nice,” he told the judges. “Your job is tough — that’s why we never want to be judges. ... I cannot sit there and listen to this stuff every single day for 30 years and not lose it.
“That’s why you are special people, and that’s why we appointed you. But you have to keep the demeanor. If you have the demeanor, then you’re never going to have a problem with us, ever.”
***
Before the evaluation program, Albo said, legislators were flying blind when it came to reappointments.
Still, he said, the support of a judge’s local legislative delegation is more important than the evaluations.
“We really do defer to the judgment of those legislators ... unless there’s a compelling reason not to. I mean, if somebody is not fit, not qualified, this committee is going to make that judgment. But we place a lot of emphasis on the feedback that is being received from members of the delegation for those jurisdictions,” he said.
Albo urged the judges to make the jobs of legislators easier by taking the performance evaluation seriously.
“If the score is really bad, that local delegation is going to have to justify why they should ask every member of the House of Delegates to go on record and push a green button for someone who’s got a really bad score,” he said.
Obenshain also encouraged judges to keep a line of communication open with their legislative delegation. He said that, while the courts committees decide if judges are qualified and eligible for reappointment, the key backing comes from the local legislators.
He said judges with bad ratings should seek feedback from their local lawmakers.
“I know there are judges around Virginia that are highly concerned that we place inordinate weight upon the outcome of the Judicial Performance Evaluation, and I don’t think we do. I think it is a helpful tool, and I hope it helps you as well as helping us,” he said.
“We want folks who are reviewed as ‘good’ and ‘excellent.’ Those are the folks that are doing their jobs.”
***
During the judicial conference, questions from the judges were passed to Justice Powell, who read them to the panelists. One judge asked: “To what extent are you aware of non-lawyer members of the General Assembly who attempt to influence local judges on decisions and, if this takes place, is there something that the courts committees can do?”
Albo answered: “It does happen. If it happens to you, what you’re going to want to do is write back maybe to the member and explain that, ‘I can’t comment on cases,’ (or) you could contact me, or if it’s the Senate, contact Mark, and we could call the delegate or senator and kind of explain it to get you out of the mix.
“I think it takes place out of ignorance and not because they’re really trying to shove you around,” he said. “I will get ... letters from constituents: ‘Could you tell Judge X to rule in my favor and stuff,’’’ Albo said. As a lawyer, he said he knows he cannot do that.
But, he said, “If you have never been involved in the law and you’ve (just) been elected — and it’s a citizen legislature, all sorts of people are there — they may not just understand it.”
Albo and Obenshain said the courts committees have given primers on the law to colleagues in the past and that it may be time to do so again.
Another question asked of the two lawmakers was whether reappointment decisions were affected by judicial rulings.
Obenshain said he could not think of a case where a judge was not re-elected because of a ruling or reversal on appeal. He said he could imagine a case in which an “outlying” ruling might indicate incompetence, but he could not recall any.
Albo recalled a situation in which a judge was questioned about a case involving the adoption of a child by a same-sex couple.
The judge answered that the law required a placement that “is in the best interest of the child” and added: “If you want to change the law and say that homosexual couples can’t adopt them, I would have to (follow) that, because that’s what my job is to do — but you haven’t changed the law yet.”
Albo said the judge “got through fine” because she was able to explain her decision. Jurists in a similar position, he said, “will never have a problem with us.”
Powell acknowledged the difficult role of justices in their communities and how the evaluations can help them cope.
“We find that, when we go on the bench, two things happen, and we hear it over and over again from each of you: We become very isolated — we lose, if you would, the friends that we had before we went on the bench because we don’t know how close we can be to those people,” Powell said.
“And we become — overnight — very funny, extremely funny. Every joke that we tell, the entire courtroom roils with laughter. We have meteoric rises in our intellect because everything we say becomes, ‘Yes, judge, that was a very good question. That’s a very good point, your honor.’”
But, Powell said, “sometimes what we don’t get is an honest view as to how well we are doing ... an honest, behind-the-curtain peek at what folks really think about what we’re doing.”
fgreen@timesdispatch.com
(804) 649-6340
source:
http://www.richmond.com/news/virginia/when-judges-are-judged-tension-can-follow/article_e16c7608-ee8d-5d37-bb85-6c6a21edbd5e.html