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Judicial Evaluation Scheme Under Development

A new Supreme Court of Virginia task force has begun the work of developing a plan for evaluating the performance of incumbent judges who are up for reelection.

At face value, judicial performance evaluations can be seen as a straightforward mechanism to help the General Assembly be better informed when it reappoints a judge to a term of six or more years, and to give judges feedback on how they are perceived.

But judges are concerned that evaluations could have a more sinister effect — limiting their independence in decision-making.

“It’s a subject of great concern, and rightly so,” said Supreme Court Justice Barbara Milano Keenan, chair of the task force.

“It’s relatively intimidating to think information that’s solicited from people who appear before [judges] could have something to do with their evaluation or reelection before the General Assembly,” said task force member John A.C. Keith, a Fairfax lawyer.

The task force was formed in response to House Joint Resolution 212, which was passed by this year’s General Assembly. The resolution requested the Judicial Council of the Supreme Court to recommend evaluation criteria for judges.

The rationale, according to the resolution, is that “the part-time nature of the General Assembly…makes it very difficult to give a full review to the judiciary and the programs implemented within the judicial branch without the assistance of a well-reasoned set of evaluation standards.”

Also, “with fewer and fewer practicing attorneys serving in the legislature, many members do not bring personal or professional experience with the judiciary to bear on the issue of reelection,” the resolution states.

The task force is proceeding carefully. It asked for, and received, permission from the resolution’s sponsor — Del. Robert F. McDonnell, R-Virginia Beach — to extend the deadline for reporting back to the legislature. The resolution requested findings and recommendations in time for the 2001 General Assembly, but, Keenan said, the task force felt more time was needed to give judges and the public adequate opportunity for input.

The Judicial Council had approved a pilot program for evaluating judicial performance in 1996, but it was never implemented.

That system would have surveyed court staff, attorneys, jurors and litigants about a judge’s performance. Judges would have been given a chance to eliminate from the survey pool individual attorneys whom they had sanctioned or reported for discipline. Peer review and self-evaluation would have been part of the process.

Now, Keenan said, the task force is reconsidering those features. The panel also will look at a judicial review program in Fairfax and examine what other states do.

The task force’s timetable calls for a specific proposal to be circulated for judicial comment by the beginning of next year. The proposal, perhaps edited to address the judges’ concerns, would be put out for public hearings in March. A final report is due to the General Assembly in July.

Regional meetings will be held the week of Dec. 11 to explain the task force’s work to the judges.

Keenan said the task force is intent on developing a process in which “judicial independence is not compromised.”

That means evaluating judges on factors such as “the manner in which cases are handled,” courtesy and “timeliness in decision-making,” Keenan said.

Keith said surveys in other states ask questions such as “Does this judge know the law?” and query about demeanor and issues such as gender bias.

But the “merits of the decisions the judge is making” likely will not be a factor on the Virginia survey, Keenan said. “We don’t want to see judges rated against each other.”

With the factors decided, myriad details will need to be worked out. If jurors and litigants are surveyed, how will they be selected? Will the judge have access to the feedback on an ongoing basis, or will it be a once-a-year production? And will the surveys be publicly accessible, or treated as confidential documents?

“It’s a big job, and we’re very concerned to answer all the questions,” Keenan said.

There’s also an educational component to the task force’s work, Keith said. “You have to convince the judge that this is something which is really more likely to help than harm….

“You may need this to show what a good judge you are, if you have a couple of people you’re unpopular with come down and raise Cain,” he added.

Fairfax County Circuit Judge Jane Marum Roush is chairing a task force committee that will oversee the survey scope and design and address the confidentiality questions. Virginia Court of Appeals Chief Judge Johanna L. Fitzpatrick is chairing a second committee overseeing program implementation.

Other judges serving on the task force are S. Bernard Goodwyn of Chesapeake Circuit Court; Catherine C. Hammond of Henrico County Circuit Court; Stephen H. Helvin of Albemarle County General District Court; Deborah M. Paxson of Virginia Beach Juvenile and Domestic Relations Court; H. Dudley Payne Jr., chief judge of Fauquier County J&DR Court; and Birg E. Sergent of Lee County Circuit Court.

Also, Paul F. Sheridan, chief judge of Arlington County Circuit Court; Joi Jeter Taylor of Richmond General District Court; Richard D. Taylor Jr., chief judge of Richmond J&DR Court; Wilford Taylor Jr., chief judge of Hampton Circuit Court; Wenda K. Travers, chief judge of Prince William County General District Court; John E. Wetsel Jr. of Winchester Circuit Court; A. Ellen White of Campbell County J&DR Court; and Morton V. Whitlow, chief judge of Portsmouth General District Court.

Lawyer members include Richard G. Brydges of Virginia Beach; Salem Commonwealth’s Attorney Francis W. Burkart III; Donald H. Kent, counsel to the Judicial Inquiry and Review Commission; and George W. Wooten of Roanoke.

Other members of the task force are Col. Carl R. Baker, chief of police in Chesterfield County; Dollie M. Compton, clerk of Russell County Circuit Court; Frank Doczi of Virginia Beach, a business executive; the Rev. George F. Ricketts of Hallieford, a Southern Baptist minister and former director of Virginia’s prison chaplaincy service; and Louise Toney of Topping, a retired administrator for Richmond Public Schools.

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