Court Governance: Balancing Judicial Independence with Administration October 8, 2013 2013 Annual Judges Conference New Orleans, Louisiana

The Challenge “There can, of course, be no disagreement among us as to the imperative need for total and absolute independence of judges in deciding cases or in any phase of the decisional function. But it is quite another matter to say that each judge in a complex system shall be the absolute ruler of his manner of conducting judicial business. Can each judge be an absolute monarch and yet have a complex judicial system function efficiently?” ~ Burger

Continuing Questions of Court Governance Role of Presiding Judge Selection and Tenure of Presiding Judge Relationship between Presiding Judge & Trial Court Administrator

Louisiana Court Governance Survey, May 2013 Question Percentage Disagree Chief Judge Duties Are Clearly Defined 36 Chief Judge Is Selected on Competence 67 Chief Judge's Authority Is Respected 24 There Are Established Policymaking Procedures 41 There Is Meaningful Opportunity to Participate in Policymaking 13 The Governance Structure Is Framed by the Duties of the Chief Judge 22 The Governance Structure Supports Transparency and Public Trust 33 The Governance Structure Provides Coherent Decision-making 35 Judges Share Mutual Professional Trust for Each Other 21 The Judicial Administrator Role Is Clearly Defined 31 Independent Decision-making Can Co-Exist with Uniform Policy 7

Top Areas of Concern Question Percentage Disagree 36 67 41 33 35 Chief Judge Duties Are Clearly Defined 36 Chief Judge Is Selected on Competence 67 There Are Established Policymaking Procedures 41 The Governance Structure Supports Transparency and Public Trust 33 The Governance Structure Provides Coherent Decision-making 35

Leadership Tools Model Rule – Role of the Presiding Judge Harvard Executive Sessions

Key Elements of an Effective Model Rule Key Elements of an Effective Rule of Court on the Role of the Presiding Judge in the Trial Courts A National Tool Raises issues and suggests examples that permit tailoring to fit the needs of the local governance structure

Model Rule Topics Term / Selection / Removal / Training Judges: Assignments / Supervision / Committees Case Management Court Operations / Procedures / Planning Liaisons / External Agencies Trial Court Administrator

Model Rule Guidance: Role of Presiding Judge Judicial Assignment Docket Management Supervision of Judicial and Court Officers Coordination of Judicial Schedules Establishing Board of Judges and Court Committees Establishing Specialized Courts or Calendars Operations Policy (Personnel, Facilities, Procurement, Finance, Security) Strategic Planning Liaison to Outside Agencies, Media, and Stakeholders Establish Automation Systems and Statistical Reporting Establish Procedures to Create Local Rules

Role: State Examples (Judicial Assignment) Alaska: Judges who disqualify for cause must state reasons in writing and forward to the Presiding Judge Alaska: PJ may assign a judicial officer to locations within or outside the judicial district to keep calendars current Arkansas: All matters in a proceeding will be heard by the judge originally assigned North Carolina: PJ may arrange dockets to permit specialization by individual judges

Model Rule Guidance: Selection of Presiding Judge Most common method is selection by majority vote of judges Alternatives: Appointment by Chief Justice Appointment by executive or legislative branch Default to seniority Accept volunteers

Selection: State Examples Utah: Elected by majority of judges...If majority cannot be obtained, appointed by the presiding officer of the Council for 2 years Oregon: Chief Justice appoints after conferring with the Supreme Court. A majority of judges may disapprove the appointment by a written resolution signed by each judge. Chief Justice will appoint another judge. If the court has five or more judges, a second disapproval is permitted and Chief Justice will appoint a third judge.

Model Rule Guidance: Tenure of Presiding Judge Varies from 1 to 12 years Judges can serve multiple terms Judges may have term limits Term length should be at least 2 years Renewable terms are important to facilitate continuity in court leadership

Tenure: State Examples Arizona: Term of 5 years. May be extended by the Supreme Court California: Term of at least 1 year in a 2 judge court; term of at least 2 years in a court with 3 or more judges. May serve additional terms Nevada: Presiding judge serves at the pleasure of the chief judge Utah: Term is presumed to be 2 years; by majority vote of the judges, may opt for a 1 year term. May serve successive terms

Model Rule Guidance: PJ and TCA Relationship Administrator is an agent of the board of judges and a professional agent of the Presiding Judge. Ability to build a working relationship is critical to court executive team success. Key components include how the two work together to oversee court management and whether they can serve together to lead the organization.

PJ and TCA Relationship: State Examples Florida: Court Administrator is selected or terminated by the Presiding Judge with concurrence by majority of judges Illinois: The Trial Court Administrator supports the judiciary as a whole. All judges should participate in the selection process. The final decision is by majority of judges Nevada: The Presiding Judge directs the Administrator in the management of the division and performance of the administrator’s duties, including collection and compilation of caseflow statistics

Court Governance: From What to How No shortage of examples of different types of court governance structures As survey results suggest, governance structure doesn’t resolve everything The question is how to govern within the court’s governance structure

Governance: The Final Frontier

Leading in the Judicial System “…an institution or a group of robed lawyers who office share?”

The “Loosely Coupled Organization”

Loosely Coupled Organization Complex and specialized decision-making Highly trained professionals with individual autonomy Tension between institutional commitment and personal autonomy External funding Changing public expectations

Loosely Coupled Organization Core Characteristics Federated structure Accountability v. autonomy Unpredictable connections Complex and knowledge intensive Integration and specialization

Governance Responsibility Higher Education Health Care State Courts -Institutional Leadership -Mission/Planning -Policy University President Hospital President Chief Justice -Management -Finance -Administration Provost/Executive VP Hospital Administrator State Court Administrator -Department/Jurisdiction -Leadership Dean Chief Medical Officer Presiding Judge -Facilities Department Chair/Associate Dean Director, Clinical Services Trial Court Administrator -Independent Authority -Specialization (experts) Tenured Faculty Physicians Judges -Representation -Input/Direction -Advisory Board of Regents Board of Trustees Judicial Council -Transitory -Performance/Outcome Focus Students/Alumni Patients Lawyers/Parties -Priorities -Accountability Executive Branch Funding/Donors

Judiciary as a Loosely Coupled Organization Federated Structure Accountability v. autonomy Unpredictable connections Complex and knowledge based Integration and specialization Judicial Selection System v. courtroom State, county or local jurisdiction Continuously changing Solving problems or deciding cases

Governance Mechanisms Leadership mechanism Process mechanism Fairness mechanism Communication mechanism “It is not enough to constitute a good government – it is equally important to adopt mechanisms to ensure permanency of good government.” -Thomas Paine

Leadership Mechanism: The Importance of Legitimacy Universally recognized Inclusive Accepted “Consent of the governed is the foundation of all legitimate authority.” -Alexander Hamilton

Process Mechanism: Protecting and Guiding Monitoring to prevent crisis Process v. specific plan Visioning “Vision without execution is hallucination.” -Thomas Edison

Fairness Mechanism: Collaborative Decision-making Trust Objective criteria - selflessness Coalitions – issues versus personalities Transparency Influence “Trust is the foundation of all relationships.” -Stephen Covey

Communication Mechanism Regular and trusted Vertical and horizontal Emphasize common values and goals Builds confidence and recognizes contributions “The art of communication is the language of leadership.” -James Humes

Your Top Areas of Concern Question Percentage Disagree Chief Judge Duties Are Clearly Defined 36 Chief Judge Is Selected on Competence 67 There Are Established Policymaking Procedures 41 The Governance Structure Supports Transparency and Public Trust 33 The Governance Structure Provides Coherent Decision-making 35

Representative Hypotheticals Court Administration Inter-Branch Relations Media Relations Personnel Management Press Relations Security Workload / Performance