Putting Judicial Evaluations On Display

Listen to this article

Second of two parts.

Should the results of judicial evaluations be made public in Massachusetts?

While the traditionalists among us might bristle at the thought of raw criticism of judges being unleashed in the public domain, according to a recent Lawyers Weekly survey attorneys want just that.
More than 70 percent of the poll respondents said that it is time for judges’ “report cards” to become public.
While the poll results do indicate that lawyers feel a bold move should be made in the name of judicial accountability, they also reflect that attorneys hardly think that grand numbers of “problem” judges exist.
In fact, the numbers bear out what has long been the buzz in the local legal community: that a small minority of substandard judges are the problem. More than half of the lawyers polled estimated “between 1 and 10 percent” of all judges are “problem judges” and only 8 percent of the attorneys surveyed said that more than a quarter of all judges are problematic.
But the “problem minority” of judges can become a major hassle for a lawyer trying a case. At present, the only judicial-evaluation system is run by the Supreme Judicial Court — and those results are kept private by law. As such, lawyers wonder what exactly goes on in an evaluation process that is kept shielded from the bar.
In the meantime, judges perceived as soft on crime face a local media gantlet that seems fierce as ever, and politicians like House Speaker Thomas M. Finneran derisively refer to judges as “unelected,” “untouchable” and “unreachable.” It is, quite simply, a frustrating time for lawyers seeking to defend the judicial system.
That doesn’t necessarily mean that conducting public judicial evaluations will enhance judges’ reputations — and many lawyers feel it may backfire on judges if journalists seize upon certain negative evaluations (whether or not they are truly reflective of the judge in question).
Nonetheless, most lawyers do feel that opening the books is worth a try.
But there seems to be no such plan on the horizon. While the Massachusetts Bar Association voted recently to start an online judicial evaluation system, there are no plans to make the evaluations public across the board.

Open It Up

The traditional hesitancy to making judge evaluations public has been that too much emphasis will be placed on the judges who fare poorly.
Massachusetts attorneys have seen the way that judges like Ernest B. Murphy and Maria I. Lopez have been treated by the media and fear that judicial evaluations — some of which will inevitably be filled out by disgruntled lawyers and parties — will provide ammunition for reporters and columnists looking to malign judges.
The evaluation system being conducted by the SJC is confidential and only an alteration to the enabling statute could change that. The MBA, unrestricted by statute, also intends to keep the results of its evaluations private but has a mechanism in place to make certain evaluations public for judges who, in the association’s eyes, do not respond to feedback (see below for further discussion of both plans).
And yet lawyers — who know all too well that sometimes judges get a bad rap — responded to Lawyers Weekly by suggesting that public evaluations would indeed be a good thing (71 percent of all lawyers said the process should be made public). Attorneys seem to be saying that “opening the books” will foster a sense of accountability and fend off drastic calls for electing judges.
“The great majority of judges are fair, sincere and clearly hard working,” read one anonymous response to the poll. “There are, however, a percentage of judges who are clearly prejudiced, rigid and unfair. They are result-oriented. These judges should be exposed and exhorted to be fair.”
Marybeth Hobbs of Everett, responding to the poll, stated that “it seems only right in these times of increasing openness and visibility into the inner workings of so many public and private institutions that the judiciary be subject to more public scrutiny. Justice requires that those tasked with dispensing it do so in an atmosphere of inclusion and access rather than one of exclusion and secrecy.”
Evaluations “should be made public,” Michael D. Facchini of Springfield told Lawyers Weekly. “As much as judges hold lawyers and litigants accountable, there should be a better systems in place for judges’ conduct. There needs to be a check and balance system — not so much on the judges’ decisions, but rather their conduct, professionalism and ethics.”
Thomas K. Birch asked: “Why in the world should judges be excepted from a public evaluation process? Judges who are doing their job should welcome it. There is no justification for not doing it except to protect the bad judges from scrutiny.”
The voices were not unanimous, however. Some attorneys felt that making evaluations public would leave certain judges hung out to dry. According to Richard A. Fairbrothers of Boston, “It is important that there be a measure of accountability for those judges receiving negative evaluations — the onus on attorneys to go through the Judicial Conduct Commission is too burdensome and prejudicial and is, therefore, ineffective. The evaluations should remain private, however. Making the results public will chill input from the bar and will do nothing but turn the process into a situation whereby judges will be evaluated poorly by the losing side and praised by the winners. It will be better for the chief judge of the respective trial court and the SJC to deal with any problem judges without being moved in one direction or another by the publicity surrounding a judge’s good or bad marks.”
George X. Pucci said in his remarks to the poll: “Overall, the quality of the state’s judges is consistently high. If a judge were to receive poor evaluations, I don’t think the results should be made public until some type of screening investigation goes on by either the court’s chief judge, or someone else appointed for such a process. The purpose of such a screening process would be to protect the independence of quality judges who may receive harsh evaluations as the result of a particular litigant’s ‘sour grapes’ or political or other motives unrelated to actual job performance.”

Need A Remedy?

The question of what should happen to judges once they receive a poor evaluation seems more elusive for lawyers.
The majority of respondents to the Lawyers Weekly poll were split almost evenly between “let each court’s chief judge handle the matter” and “official avenues of discipline should be explored.” (A small minority of lawyers felt that making the results public was punishment enough.)
William P. Corbett Jr. of Lynn remarked: “I have a problem with the question ‘What should happen to judges who are evaluated poorly?’ in that it seems to contemplate discipline as the exclusive remedy for a substandard evaluation. In the vast majority of cases, supplemental training and/or mentoring by more highly rated judges would be far more conducive to improving judicial performance. After all, these are life-tenured jurists who, for the most part, have taken significant pay cuts because they want to serve the community. All presumably intend to do the best job possible.”
Continued Corbett: “I trust that if the consumers of their services are dissatisfied, and if that dissatisfaction has a valid basis, the lion’s share of our judges would take any appropriate criticism to heart and strive to improve. But if such a subjective evaluation process exclusively exposes judges to discipline if they come up short, then judges are less likely to be willing recipients of constructive criticism, and the process may become adversarial.”
Other lawyers were concerned that evaluations might lead to punishing judges for unpopular decisions.
Elizabeth A. Lutwak of Marblehead stated: “I think that it is important in the current political climate to tread carefully in evaluating judges. I believe strongly in lifetime appointments and am concerned at the recent reactions to the SJC’s decisions from pundits, politicians and the president of the U.S. characterizing judges as ‘activist.’ I would like to see more lawyers step up and defend this crucial third branch of government and its independence and fear any attempt to use ‘evaluations’ to attack judges whose decisions we disagree with for reasons other than legal ones.”
Another poll response read: “This is a dangerous time to have public evaluations of judges. It may lead directly to judicial elections — which would be a horrible innovation that would undermine the integrity and competence of our bench.”
And another lawyer remarked that “depending on the nature of the ‘poor evaluation,’ some judges should be subjected to something more than the creation of a file in the chief judge’s office but not the sort of witch-hunt that chased Judge [Maria I.] Lopez from the bench (I do not intend to offer an opinion regarding Judge Lopez’s conduct, only an inference about the public drumbeat that led to her initial evaluation as we have all encountered jurists whose demeanor and public conduct is inappropriate).”
But other lawyers simply feel that the current system employed by the SJC — where judges receive feedback from their chief judge — isn’t doing enough.
“Reliance on the role of the chief judges or even of presiding judges in mentoring or improving ‘problem judges’ has been a failure both because of the opaqueness of the process and the inadequate motivation on both sides to improve sub-standard judges,” stated Peter V. Lawlor of Chelmsford.

The SJC Evals — Sealed Tight

Despite the thoughts of many lawyers, the judicial-evaluation system run by the SJC will not produce public results unless the law changes. Confidentiality is mandated by G.L.c. 211, Sect. 26.
Nor does there seem any movement afoot to make the court-run system public.
Chief Justice for Administration and Management Robert A. Mulligan tells Lawyers Weekly he is “concerned at how the public may misinterpret judges who behaved a certain way on a particular day. When you make them public, you have the problem that the general public doesn’t understand what it is to be in a courtroom.”
Under the SJC’s system, when a judge receives a substandard review the problem is addressed by the particular judge’s chief and the CJAM. Mulligan says that judges can be spoken to directly or in some cases assigned a “mentor judge.”
Superior Court Judge Janet L. Sanders, who oversees the program, says that in most cases judges truly take the criticism to heart. But “coming down hard” on insensitive judges, she says, is a tricky thing.
“What do you do with a judge that has a demeanor issue?” she asks. “It’s not an easy question to answer. There’s no magic bullet to teach a judge how to be polite.”
Sanders understands that some lawyers lament the “quiet” nature of judicial evaluations — the notion that lawyers don’t see anything tangible happening to the judges in need of improvement.
But, she says, “when [lawyers] say ‘we don’t see anything,’ what are they expecting to see? It’s going on in confidence. … Essentially our system relies on the chiefs and the CJAM to make sure that problems are dealt with. … I don’t know why the MBA [in starting its own project] is reluctant to trust Justice Mulligan with cleaning his own house. He’s very committed to this.”
The matter of “problem judges” is a “burning issue,” acknowledges Mulligan, “but we’re really just getting [our system] up statewide. People should be patient and give us an opportunity. I know the chief justices are concerned about the problem judges. There are a small number of judges that are causing problems for reputation of judges in general.”
Can a bad evaluation under the court’s current system lead to disciplinary measures for the judge in question?
Not really, says Sanders.
“I have always envisioned our project as quite separate from that of the Judicial Conduct Commission,” she explains. “We want to send a message to judges that this is not a punitive process.”
The submitted comments on judges, says Sanders, “are anonymous and they are all over the map.” To use one as a basis for a JCC complaint, says the judge, would be unfair, although “if that lawyer wants to file a complaint, then fine.”
Mulligan says, however, that he is not sure what the future holds for judicial evaluations and what remedial measures might be put into place. More specific plans might be launched somewhere down the line.
“We haven’t decided how were going to handle it yet,” he says.

The MBA Enters The Fray

The MBA’s new online judicial-evaluation system will not satisfy lawyers’ desire for public evaluations; in general, the plan calls for keeping the results confidential.
This decision comes as a bit of a disappointment to former MBA President Edward P. Ryan Jr., who first created MBA judicial evaluations in 2000. Ryan, feeling that it was time to force the courts’ hand on the dilemma of problem judges, had every intention to make judicial evaluations public — and no law prevents the MBA from doing so.
But in the end Ryan was persuaded of the potentially sensationalistic fallout from the release of the evaluations. He instead hoped that releasing composite information about the fact that most judges perform very well would help elevate the reputation of the judiciary.
But when the story broke in The Boston Globe, the headline read “Bar Won’t ID Judges In Survey” and the article focused on the MBA’s decision to withhold the names of evaluated judges rather than how they had fared in the survey.
Ironically, in an attempt to enhance the reputation of the judiciary, the project instead was painted as self-interested legal insiders sticking up for their own while secretively holding back the names of problem judges.
Ryan had hope, however, that the evaluation results — sent to chief judges, the CJAM and the judge in question — would serve as a warning to judges who fared poorly. Then, he thought, future MBA presidents would make the results public.
But the project dropped off the radar screen of the MBA until now, and Ryan thinks it is a mistake to keep the results confidential.
“The time has come when only making the results public will be able to measure whether efforts of remediation are working,” he says.
One unusual provision in the MBA scheme would allow certain evaluations to become public, albeit under unusual circumstances.
A standing committee of the MBA will use the evaluations to “work with the judiciary” to improve judges’ performance.
The committee may also “recommend to the MBA officers to make public the results on an individual judge when it serves the administration of justice.”
This option “would just be for a particular judge who doesn’t respond to feedback,” says MBA President-Elect Kathleen M. O’Donnell. “Our task force thought long and hard about this, and we assume the standing committee will create standards [to define when a problem judge would be considered for this procedure].”
Ryan sees a problem with the MBA’s plan.
“When you release only the names of the bad judges, at that point the bad judges become the story,” he says.
Sanders feels that the confidentiality “opt-out” in the MBA’s system will not likely become an issue.
“If what it is saying is we will publish only if the chief justices don’t do something, then I have less of a problem with it because I am confident that we will be able to take care of our own,” she remarks.
But, says Sanders, “there still is a question as to whether releasing individual names is really a form of shaming, i.e., let’s humiliate this person to get them to change their ways. I’m not a big proponent of that.”
Mulligan suspects that the MBA system is a precursor to public evaluations and is leery as to whether the MBA will truly be keeping the surveys confidential in the first place.
“What about the standing committee? Does that mean the members of that committee are sworn to secrecy?” he asks. “These evaluations can leak out and become rumors detrimental to the reputation of judges.”
Mulligan further states that the system for deciding as to whether a problem judge is “exposed” seems “formless.”
And, he asks, “if they decide to do it, aren’t they going to be issuing just negative results, and then won’t there be pressure to release positive information to show that it is not typical of the judiciary?”
The CJAM simply feels that judicial evaluations are not to be handled blithely.
“When you do it properly it takes tremendous time and effort,” he says. “I’m not sure you can do it by putting something up on a website if you want to do it properly.”
But O’Donnell and the MBA are undaunted.
“We think it’s important to retain the independence of the judiciary,” she says. “We need some accountability.”

What Lawyers Are Saying

A sampling of what attorneys responding to an e-mail poll told Lawyers Weekly about judicial evaluations. This is the second of two installments of these comments.

“Judges should be evaluated by other judges, court staff and attorneys, but not by the parties, litigants or jurors and not immediately following a trial while emotions may be quite high.”
“Judges should be evaluated periodically — say, every two to five years. Results should not be made public. Depending on the results, however, the chief trial judge or the SJC should take action to effect a correction in a judge’s conduct.”

“Making evaluations public could undermine confidence in and respect for judges who are not highly rated and could exacerbate the problem.”
“Virtually every professional is subject to evaluation, either explicitly through an annual review, or through the willingness of clients to engage you. Why should judges be exempt from peer, or customer (lawyers, litigants) feedback? Shouldn’t they welcome any constructive criticism?”

“The procedure currently in use for judicial misconduct by judges is outdated. [I’d suggest] a system where you have a senior judge, an attorney and a civilian familiar with the legal system sit as a three-panel tribunal that would first evaluate a case and then recommend what should be done. Publish the findings along with what brought about the hearing. This may sound strange but it would be far less costly and after a few cases were published most justices would be more careful in the manner in which they conduct their court.”

“Judges should spend one week each year in classes taught by law professors. What they study should be determined by evaluations of lawyers and themselves and by the results of mandatory standardized tests. Non-lawyer evaluations should address civility, patience, etc.”
“One worry about having litigants (especially pro ses) evaluate judges is that their lack of knowledge of the law itself colors their perception of the judge’s ‘fairness.’ They should, however, be able to evaluate other issues, such as response time for decisions, promptness and demeanor on the bench and the manner in which their cases are handled. Perhaps evaluations can be set up so that lawyers evaluate all aspects and litigants evaluate the non-legal aspects of judges’ actions.”
“There is a real need for evaluations of judges. I fear the call for the election of judges, because elections will politicize the process and take away the layers of screening involved with the current mechanisms for the nomination and selection of judges. Evaluations by their nature will allow those who utilize the courts, whether as litigants or counsel, to voice opinions that should, when taken together, have a meaningful impact on judges’ performance and accountability.”

“It is essential that a checks-and-balances system be in place whereby any judge who knowingly, willingly and regularly abuses his/her authority in rendering decisions, be reprimanded, suspended or removed. Judges hold an honored position in this society. My experience has been that most hold true to the integrity of their position and demonstrate fair, reasonable, objective, sound decisions. However, those rare few who do not should be held as accountable for their actions as must those individuals who stand before them awaiting their civil and criminal judgments.”

“Although I think that everyone should be able to participate in the evaluation of judges, I do not think that this evaluation should happen after each case. Too much potential for the outcome of the case to impact the evaluation. Those evaluating judges should give judges the courtesy and benefit of detached reflection.”
“Until there are standards for caseload/workload in the Probate Court where I work, time standards for and a common definition of ‘disposition’ of cases, a more appropriate allocation of resources such as law clerks, and some objective way to evaluate judiciaI knowledge, I think it will continue to be difficult to fairly evaluate judges.”
“Statistics can tell a lot and should be a part of any valid evaluation. Fairness, efficiency and knowledge of the law responses that are ‘subjective’ or that are not backed up by actual examples aren’t worth much. If fairness, efficiency and knowledge of the law are going to be honestly evaluated, the forms involved should specifically ask for examples to support both positive and negative ratings. … This kind of ‘sunshine information’ would truly make all judges do their homework and decide cases in line with the law as opposed to ‘guessing,’ which occurs more often than it should.”
“I’ve long disagreed with the usurping and other erosion of judicial authority which has come from the other branches in the form of mandatory sentences and the like. Moving a considered decisionmaking process, which seems to be more or less above the political fray, into the political arena seems to pose many dangers. That said, there does seem to be a need for the judiciary to better police itself via ‘an official avenue’ to hear of and place a check on unfettered judicial prerogatives.”

Lawyers Weekly Judicial Evaluation Survey

Should the results of judicial evaluations be made public?
Yes: 71%
No: 29%
What percent of judges qualify as “problem” judges?
less than 1 percent: 12%
between 1 – 10 percent: 55%
between 10 – 20 percent: 25%
more than 25 percent: 8%
What should happen to judges who are evaluated poorly?
Let each court’s chief judge handle the matter: 49%
Official avenues of discipline should be explored: 49%
Nothing; if the results are public that’s enough: 2%
Questions or comments may be directed to the writer at dyas@lawyersweekly.com.