Legislators to court: do not tell us what to do

By Alan Cooper
Published: December 15, 2008

You can’t give us information about judges and order us not to disclose it, members of the House Courts of Justice Committee told representatives of the Supreme Court of Virginia last Thursday.

At issue are judicial performance evaluation reports on judges up for reelection this year.

The Supreme Court entered an order in August telling the survey lab that compiles the reports to deliver those on the first five judges that the legislature will consider under the judicial performance evaluation, or JPE, program to the chairmen of the House and Senate courts committees.

The court ordered the chairmen to disclose the reports only to members of the committees and to legislators who represented the judicial districts in which the judge sits.

House Courts Chairman David B. Albo, R-Fairfax, said he called Chief Justice Leroy Rountree Hassell Sr. and told him the order was too restrictive because all members of the legislature vote on judges. The court responded with a second order that allowed all legislators to view the reports but barred anyone else from seeing them and directed Albo and his Senate counterpart, Henry L. Marsh III, D-Richmond, to return all copies of the evaluations to the lab that compiles them once the legislature completed its work on the reappointments.

That set up Thursday’s showdown.

Albo asked the Supreme Court to send representatives from the JPE Commission to the joint meeting of the House and Senate Courts Committee meeting. The committee was scheduled to review about 60 judges who were up for reelection, including the five for whom JPE reports had been prepared.

Albo told Ed Macon, the No. 2 man in the Supreme Court’s administrative arm, and Patricia Davis, coordinator of the JPE program, that he had not opened the sealed envelope containing the JPE reports because of the possibility that he could be held in contempt of court and jailed if a disclosure the Supreme Court viewed as improper occurred.

“The fact that you can’t open it without fear of going to jail means that the Supreme Court has not complied with the law,” House committee member and Majority Leader H. Morgan Griffith, R-Salem, said.

The statute that creates the JPE program, Virginia Code § 17.1-100, directs the Supreme Court to establish it by rule to “provide a self-improvement mechanism for judges and a source of information for the reelection process.” The reappointment of judges is a public proceeding, and the court failed to follow the law in trying to impose secrecy on it, Griffith said.

Del. Bill Janis, R-Henrico, said the order creates a broader separation-of-powers issue. “I don’t think the Supreme Court has the authority to order members of the legislature to do anything.”

Macon told the committee members, “There is a genuine and honest disagreement” about whether the reports can be kept secret. He said the court considers them personnel files of the type that are exempt from disclosure under the Virginia Freedom of Information Act.

Griffith said he does not believe the exception for personnel matters applies because the reappointment process is public. “For this to possibly work,” legislators have to be free to discuss a question, pro or con, raised by a JPE report, he said.

Several committee members appeared to be looking for, as Del. David W. Marsden, R-Fairfax, put it “some middle on this. It doesn’t look like there is.”

Albo seemed to hold out hope that there might be. “I’m not mad at anybody. We just have a problem, and we need to get it fixed.”

Under the JPE process, lawyers who routinely appear before a judge are sent questionnaires based on the Canons of Judicial Conduct. Jurors in cases presided over by circuit judges also get questionnaires, as do court service unit and Department of Social Services employees who appear routinely in juvenile and domestic relations district court.

Those questionnaires are compiled by the Virginia Commonwealth University Survey, Evaluation and Research Lab and reviewed by a retired judge, called a facilitator, who observes the judge on the bench for at least one day and presents the findings of the survey to the judge.

The questionnaires remain in the possession of the contract survey firm. “We don’t see them here at all,” according to Davis, the program coordinator.

When the program is fully implemented, each judge will be evaluated three times, once after the first year, halfway through a term and then in the year before he or she is eligible for reappointment. Judges will be evaluated twice in any subsequent terms.

Although legislators were to see evaluations of only five judges this year, as many as 43 judges are scheduled to have evaluations considered by the legislature next year.

About 120 evaluations were done this year, and about 140 will be completed next year, but many of those are first-year or mid-term evaluations. Those evaluations are considered self-improvement tools for the judges and are not shared with the legislature.

The impetus for the JPE program was the frustration of a group of largely Republican legislators led by then-House Courts Chairman Robert F. McDonnell in the late 1990s over what they saw as an often cursory and ill-informed process for reappointing judges.

McDonnell, now attorney general and the likely Republican nominee for governor next year, said judges also had complained to him about last-minute criticism by disgruntled litigants that they had little opportunity to address.

Another source of discomfort for incumbent judges, most of whom had been appointed with the support of Democratic legislators, was the Republican takeover of both houses of the legislature at about the same time. Their fear – which has proved to be largely unfounded – was that they would be replaced by partisan Republicans.

McDonnell said he was looking for an objective evaluation process that would provide legislators with the information they needed to decide whether a judge merited reappointment and at the same time give judges comfort that they would be evaluated on their entire performance rather than on the complaints of a few dissatisfied litigants.

He sponsored a resolution in 2000 directing the Virginia Judicial Council to develop such a procedure. “I knew that it had to be supervised by the judges” because of separation of power concerns, he said.

Justice Barbara Milano Keenan was named to head the commission that developed the program, and she has assured judges at conferences that confidentiality is central to it. She said two years ago, “If confidentiality becomes a problem here, we will eliminate [the problem] even to eliminating the program.”

The insistence on confidentiality from the court’s administrative system, as well as from the legislators and the public, brought an almost comical end to Thursday’s exchange between the legislators and the Supreme Court representatives.

Albo attempted to hand the sealed envelope with the evaluations to Davis, who told him that she couldn’t take them. If he wanted to return them, they would have go back to the VCU lab, she said.

Virginia Lawyers Weekly

Legislators to court: do not tell us what to do

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