Virginia Lawyers Weekly VA Lawyers Weekly
Six years ago, then-Supreme Court Chief Justice Leroy Hassell Sr. prompted a separation-of-powers rhubarb with the General Assembly over judicial performance evaluations.
Judicial performance evaluations, or JPEs, are the equivalent of a report card or a job review for judges. They are used to help judges who have performance issues and they are used by legislators when judges seek re-election.
Hassell wanted the JPEs kept confidential and he entered an order prohibiting the chairs of the Courts of Justice committees from sharing the documents with anyone beyond those panels. When the chairs squawked that all members vote on re-election, Hassell entered another order allowing distribution, but requiring all copies to be returned to the court.
The impasse was broken when Hassell backed down and the legislators agreed to keep the contents on the down low. The JPE program promptly died for lack of funding.
This past year, the Assembly revived the JPE process and they got it right: The enabling legislation states that the JPEs are public records available for public inspection.
Considering judges are public officials paid on the public dime, this only seems right. The first set of JPEs for 19 judges seeking another term was released last week. The members of the Courts committees who will hold interviews can look through them – and so can lawyers and the general public.
It’s hard to understate what a milestone of transparency this development is. Not so long ago – go back about 20-some years – judicial interviews were held behind closed doors, and the press and the public were not allowed to attend.
Virginia remains one of only two states in which judges are elected by the legislature. Judicial selection at the General Assembly too long has been cloaked in mystery.
Couple the release of the JPEs with sentencing figures gathered by the Virginia Criminal Sentencing Commission. For circuit judges asking for re-election, the commission annually compiles a report detailing how the judge’s criminal sentences match up against the commonwealth’s voluntary sentencing guidelines. The report states how often the judge is within those ranges, and how often he or she is above or below those norms.
In other words, with these two documents, the legislators passing on re-election have some pretty good information on how a judge has performed during his or her term. And if there are questions, the interview becomes a real job review, not an exercise highlighted by frothy inquiries such as, “So, how do you like being a judge?”
The public has some real information as well, in case someone wants to object to a judge’s re-election and provide input to the committees.
These documents cover how the Assembly handles judges already on the bench. The election of new judges is still a work in progress. It’s not always the most deliberative procedure seeking to make sure the very best candidates make the grade; there is a lot of deal-making.
Retired Supreme Court Justice Elizabeth Lacy once described the experience this way: “You can be traded for a bridge…That is literally your value when you’re going through the process.”
Last month, interviews were set for a seat on the Supreme Court and two on the Court of Appeals.
Through an apparent undisclosed agreement, only one candidate for the high court, Appeals Court Judge D. Arthur Kelsey, was scheduled for an interview, essentially assuring his ascension. There were only four candidate interviews for what would be, with Kelsey’s move, three spots on the intermediate court.
The deal had been struck among Republican leaders and there was immediate and loud pushback from other Republicans, decrying the lack of choices.
Another day of interviews was scheduled, and Senate Courts Chair Thomas B. Norment, R-James City County, invited anyone and everyone interested to request an audience. Twenty more candidates will be interviewed on Dec. 12.
The availability of documents for judicial re-election shows some serious movement toward transparency. With any luck, the loud howl over the apparent done deal before the appellate interviews will prompt more openness in the selection process for those courts and trial courts as well.
