1. JUDICIAL PERFORMANCE EVALUATIONS IN THE UNITED STATES Judge Jeremy Fogel Director Beth Wiggins Senior Research Associate Federal Judicial Center January 30, 2012

2. The U.S. Federal Judiciary does not have formal, mandatory performance evaluation of judges. It does, however, have various formal and informal mechanisms which encourage quality judicial performance. Some U.S. state court systems have mandatory performance evaluations. JUDICIAL PERFORMANCE IN THE U.S. FEDERAL JUDICIARY 2

3. Formal mechanisms include: Statutory time limits for specific criminal proceedings Code of Conduct and ethics-related statutes Complaint mechanisms regarding judicial performance Statutory reporting requirements on caseload Impeachment and removal of judges Informal mechanisms include: Collegial expectations and monitoring by the chief judge Activities of outside entities, such as the American Bar Association and local bar associations (e.g. association of lawyers) Voluntary performance evaluations JUDICIAL PERFORMANCE IN THE U.S. FEDERAL JUDICIARY CONT’D 3

4. Establishes Time Limits for Completing Various Stages of a Federal Criminal Prosecution The information or indictment must be filed within 30 days from the date of arrest or service of the summons. Trial must commence within 70 days of the filing of an indictment or the date the defendant appears before the court in which the charge is pending, whichever is later. But, a trial may not begin less than 30 days from the date the defendant first appears in court, unless the defendant agrees in writing to an earlier date. Certain pretrial delays are automatically excluded from the Act's time limits, such as delays caused by pretrial motions. If trial ends in a mistrial, or the court grants a motion for a new trial, the second trial must begin within 70 days "from the date the action occasioning the retrial becomes final.” The case may be dismissed, with or without prejudice to re-prosecute, for a violation of the time limitations. FORMAL MECHANISMS: SPEEDY TRIAL ACT (1974) 4

5. Act established a formal procedure for reviewing complaints alleging that a judge: “ has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” OR “is unable to discharge all the duties of office by reason of mental or physical disability” FORMAL MECHANISMS: JUDICIAL CONDUCT AND DISABILITY ACT (1980) 5

6. Congress directed the Director of Administrative Office of the Courts to prepare a semiannual report, available to the public, disclosing for each judge: Number of motions pending more than six months; Number of submitted bench trials pending more than six months; Number of cases pending more than three years. http://www.uscourts.gov/Statistics/civilJusticeReformActR eport.aspx FORMAL MECHANISMS: CIVIL JUSTICE REFORM ACT (1990) 6

7. Code of Conduct for United States Judges  adopted by the U.S. Judicial Conference  contains the ethical canons applicable to federal judges and commentary on them Ethics-Related Statutes  For example, judges’ outside income and employment are subject to the relevant Ethics Reform Act provisions, and other Ethics Reform Act provisions regulate the acceptance of gifts and honoraria by judges and judicial employees. FORMAL MECHANISMS: CODES OF CONDUCT AND STATUTES 7

8. Article III judges can be removed from office for “high crimes and misdemeanors” (U.S. Constitution). Requires impeachment (formal charge) by majority of the House of Representatives. Requires trial and conviction by two-thirds vote in the Senate. In the history of the United States, only eight Article III federal judges have been impeached. FORMAL MECHANISMS: IMPEACHMENT 8

9. Routinely monitor caseload statistics to identify problems, their causes, and possible solutions. As appropriate, discuss issues with specific judges. Establish regular communication (e.g., monthly meeting) among judges on the court, in part so that all judges follow standard, high quality procedures. Assist newly-appointed judges in learning the intricacies of the judicial role, perhaps by assigning a mentor judge. Be available as a “sounding board” for all judges on matters that might interfere with their performance, including, for example, heavy or complex caseloads, illness or personal matters. Other: peer expectation INFORMAL MECHANISMS: THE ROLE OF THE CHIEF JUDGE 9

10. Historically, judicial performance evaluations in the United States consisted primarily of surveys undertaken by state or local bar associations. The American Bar Association (national level) recommends judges be evaluated according to the following criteria: Legal ability Integrity and impartiality Communication skills Professionalism and temperament Administrative capacity ABA Guidelines for the Evaluation of Judicial Performance (2005) INFORMAL MECHANISMS: EVALUATIONS BY CIVIL SOCIETY 10

11. JPE began in the state courts with surveys and reviews conducted by bar (attorney) associations. Alaska instituted the first official state-run program in 1975. Since then 19 states, as well as the District of Columbia and Puerto Rico, have established official programs for some or all of their courts. In other states, state or local bar associations conduct judicial evaluations; in at least one state, a newspaper does so. JUDICIAL PERFORMANCE EVALUATIONS (JPE) IN STATE COURTS 11

12. JPE programs established by state constitution, statute, or court rule. Judges are evaluated using predetermined criteria (such as those of ABA) using a variety of methods (such as surveys, observation, case statistics) at preset intervals depending on the purpose of the evaluation. Commission composed of attorneys, judges, and lay persons oversees the evaluation; in some states, each branch of government appoints members of the commission. Commission prepares report for judge and depending on the state, may also give report to those having power to determine whether judge remains on the bench and the public. CHARACTERISTICS OF STATE PROGRAMS 12

13. Case Management Statistics Surveys  Attorneys (most common)  Other judges  Court staff  Jurors  Litigants Courtroom observations Review of written opinions Interview with the judge Judge self-assessment COMMON PROCEDURES AND METHODOLOGY 13

14. CASE STUDY 14

15. Program undertaken by the Federal Judicial Center at the request of the U.S. Judicial Conference Committee on the Administration of the Bankruptcy System. Purpose is for judicial self-improvement  Results are provided only to the judge being evaluated.  Attorney responses are anonymous. Voluntary—Judges contact the FJC to participate  Individual judges or all judges in a district may request evaluation.  Many judges request evaluations 4 or 5 years into their 14-year term. BANKRUPTCY JUDICIAL PERFORMANCE SURVEYS 15

16. Invite all attorneys whose have had a matter assigned before the judge (in last 3 years) Email a link to an online survey  https://vovici.com/wsb.dll/s/6212g46a0d https://vovici.com/wsb.dll/s/6212g46a0d  3 weeks to complete Factors assessed include:  Judicial impartiality and integrity  Legal Ability  Professionalism and Work Habits Open-ended, qualitative responses also collected FJC prepares report including summary table of responses to objective questions, open-ended comments, and guide to interpreting tables and comments. METHOD 16

17. ADDITIONAL INFORMATION ON FJC WEBSITE 17

18. www.fjc.gov 18