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Judicial evaluation program is dead

Alan Cooper//March 16, 2009

Judicial evaluation program is dead

Alan Cooper//March 16, 2009

The Supreme Court of Virginia’s judicial evaluation program apparently is dead.

The General Assembly cut the money for the JPE program from the 2009-10 budget, and Virginia Chief Justice Leroy Rountree Hassell Sr. says the court system is “in the process of winding up” the work remaining.

The quick end to the program doesn’t sit well with some legislators. Del. Bill Janis, R-Henrico, noted that the law that requires the evaluations, Virginia Code § 17.1-100, remains on the books. “I see no statutory authority for the [chief justice] to shut down the program.” Many other state agencies must make do within existing budgets, he noted.

Janis suggested that shutting down the program for lack of funding is “a pretext for not supporting a program he didn’t support from the beginning.”

Del. David B. Albo, R-Fairfax, chairman of the House Courts of Justice Committee of which Janis is also a member, was less critical of the court for eliminating the program because funding for it was killed.

But he shared Janis’ view of what they see as the court system’s lack of enthusiasm for the JPE program. “I didn’t see anybody yelling and screaming when it got pulled out of the budget,” Albo said. “Nobody said, ‘Gosh, we really need this. This is a great tool for us.’ “

Katya Herndon, a spokeswoman for the Supreme Court, said Hassell and the rest of the court have always supported the prograjm.

The question is whether the program will die, as Hassell indicated, or whether there will be an effort to resurrect it, perhaps with the legislature supervising it rather than the courts system.

Hassell’s comments about the demise of the JPE program were in the context of his comments to the Committee on District Courts on March 6 about the need to cut $3 million from the courts system’s budget for 2009-10. He said he expects to accomplish that by extending a delay in filling empty positions from three months to at least six months and perhaps longer.

The JPE program was enacted in 2002, with no funding at first, largely at the insistence of then-Del. Robert F. McDonnell, R-Virginia Beach, who was chairman of the House Courts of Justice Committee at the time.

McDonnell and other Republican legislators had taken control of both houses of the General Assembly and were frustrated at two aspects of the reappointment process for judges.

On one hand, the process was often a rubber stamp with no meaningful questioning of a judge or any analysis of how well he or she had performed.

On the other, judges at times were attacked during the appointment process by one or more frustrated and vociferous litigants who thought they had been treated unfairly. Legislators had little way of knowing whether the critics had a legitimate complaint, and even if they did, whether it was an aberration or indicative of a broader problem.

McDonnell and others contended that an evaluation program would identify judges who were unworthy of reappointment and provide a buffer for those who were unfairly vilified.

The legislature finally funded the system in 2005 after a pilot project that generally was well received by judges. The court system set up a commission, headed initially by Justice Barbara Milano Keenan and now by Justice Lawrence L. Koontz Jr., to design the program that, in the language of the statute, “will provide a self-improvement mechanism for judges and a source of information for the reelection process.”

The system is based largely on questionnaires developed from the Canons of Judicial Ethics that are sent to lawyers, jurors and juvenile court personnel familiar with a judge’s work.

The court system awarded a contract to the Survey and Evaluation Research Laboratory of the Center for Public Policy at Virginia Commonwealth University to send out and collect the questionnaires.

If the program had been fully implemented, a judge would have been evaluated three times in his or her first term. The first two evaluations were to be self-improvement tools for the judge and the third, conducted the year before a judge is up for reappointment, would go to the legislature as well.

The evaluations are presented to the judge by a retired judge, called a facilitator, who also observes the judge. Significantly, no one else in the court system sees the evaluations, and they are in fact delivered to the legislature by the contractor.

The statute says the evaluations shall be delivered to the chairmen of the courts committees, but the evaluations of the first seven judges to go through the process were accompanied by an order from the court that infuriated legislators.

It barred dissemination of the evaluations to anyone outside the legislature and required that all copies of them be gathered up and returned to the contractor.

Many legislators questioned the authority of the court to order it to do anything related to their legislative duties.

At meetings with legislative leaders, Hassell insisted he had no intention of holding anyone in contempt, and he said the court had no problem with legislators referring to the evaluations or even quoting from them when judges appeared before them.

But he insisted that they otherwise remain confidential and contended that they should be accorded the same secrecy that usually accompanies personnel evaluations.

Finally, at the end of the legislative session, the court rescinded the secrecy order in exchange for an understanding that the evaluations would not be disseminated beyond the legislature.

Janis said he has no problem with such a procedure, as long as it is clear that it is the legislature – and not the court – that accords the secrecy. He noted that the legislature has a somewhat analogous procedure for handling the questionnaires that judicial candidates fill out before they are interviewed by the courts committees. They remain secret, but legislators often refer to specific questions during the interviews.

Albo, on the other hand, believes the evaluations should be public. “All my votes are recorded. I man up and judges need to man up – or woman up,” he said.

Northern Virginia judges long have had a less formal, but similar, evaluation program that involves confidential questionnaires that go to members of the Northern Virginia delegation.

“For the most part, judges would like their evaluations known,” Albo said. He pointed to Fairfax Circuit Judge Gaylord L. Finch Jr., who came under criticism before his reappointment last month from some litigants for what they viewed as cursory attention to their cases. His evaluations prepared for the Northern Virginia delegation generally were positive, Albo said.

Albo’s counterpart on the Senate courts committee, Sen. Henry L. Marsh III, D-Richmond, defended judges and questioned the fairness of some aspects of the program, such as limiting the questionnaires to lawyers in some instances and the timing of the evaluations and how those who went through the process first were determined.

But he said members of the House courts committee that they had talked to “seemed willing to work out the bugs in the system. I think there is a desire to have input.”

Whether that desire extends to providing money for the program will have to wait until the next legislative session.

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