WILLIAMSBURG – Performance reviews can make people nervous, and judges are no exception. They wonder just who is weighing in on their abilities and what weight their bosses give those reviews.
Mindful that some judges have not been re-elected after receiving low scores on the Judicial Performance Evaluation reports, Virginia’s trial judges continue to raise questions as the JPE program enters its third year in its second go-round. Judges had a chance to pose many of those questions to legislative and judicial leaders at the annual Judicial Conference of Virginia on May 10.
Anonymous questions indicated concerns about the confidentiality of the JPE reports, whether there’s a “cut-off” point for judges with low scores and whether judges up for re-election gain any advantage if they voluntarily share their confidential interim reports with legislators.
Virginia Senate Courts of Justice Committee Chair Mark Obenshain, R-Harrisonburg, and House Courts of Justice Committee Chair Dave Albo, R-Springfield, joined Chief Justice Donald W. Lemons and Justice Cleo E. Powell of the Supreme Court of Virginia in a panel discussion on the JPE survey program. JPE program director Patricia Davis provided a historical overview of the program and filled in some gaps about how it is currently administered.
The two justices and Davis appeared at a joint meeting of the General Assembly courts committees last fall in an effort to cultivate “transparency” about how the program operates, Lemons told judges during his State of the Judiciary address. He said it was “a very productive meeting” and the legislators offered to reciprocate by visiting the spring Judicial Conference.
“The JPE program is here to stay and we need to make it a good thing,” Lemons said. He downplayed the idea that JPE scores are dispositive when it comes to winning another term on the bench.
The program’s main purpose “is to make judges better,” Lemons said. Providing final, pre-election reports to legislators is “subsidiary, almost ancillary, at some point in the process,” to assist lawmakers in exercising their “constitutional prerogative” and constitutional duty to decide who’s going to wear the robe in Virginia, the chief justice said.
Judges in their first term are evaluated three times: after the first year on the bench, mid-term and during the year before re-election. During successive terms, a judge is evaluated mid-term and in the year before re-election. Only the final report sent to the legislature is a public record. The surveys are administered and compiled by Virginia Commonwealth University’s Survey and Evaluation Research Laboratory, or VCU-SERL.
How am I doing?
“We understand how unnerving it can be to get that performance evaluation,” Powell told the judges. She chairs an advisory committee appointed by Lemons to review the JPE process.
“When we go on the bench, two things happen. We become very isolated,” losing touch with former lawyer colleagues “because you don’t know how close you can be,” Powell said.
And overnight, “we become extremely funny” and experience “a meteoric rise in intellect,” Powell said. If the judge makes a humorous observation, everybody in the courtroom laughs. When the judge has a question or comment, counsel tell her: “Judge, that’s a very good question,” and “Yes, your honor, that’s a very good point.”
JPE surveys completed by lawyers, jurors and court personnel are intended “to make us better, and who among us does not want to get better” at the job, the justice said.
The advisory committee is considering gender and race bias issues and whom to survey, and developing surveys for appellate judges, according to Davis. Surveys already have been modified to remove questions about administrative capabilities and emphasize frequency of observed behaviors.
Davis said the surveys also are making more explicit to survey respondents that their comments are not sent to legislators, but will only be shared with the facilitator judges who go over the surveys with the evaluated judges.
For most committee members, “JPE reports are the beginning, not the end of our inquiry,” Obenshain. Committee members are not necessarily lawyers and may not know judges from an opposite corner of the commonwealth. The surveys may prompt questions during judicial interviews and requests to have legislative colleagues follow up with folks back home.
Survey “participation by lawyers is abysmally low,” Obenshain said. Committees “don’t know how to look at some of these evaluations. You don’t know if 60 of the 90 respondents are jurors, who love you guys,” Obenshain told the judges. “Jurors have a distinctly different perspective,” he said.
VCU-SERL knows the proportion of lawyer respondents, Davis said, but that information is not shared. The Supreme Court and the Virginia State Bar are asking lawyers not to ignore the VCU emails summoning them to complete survey forms. Lawyers eligible to complete surveys on a particular judge are identified through court case-management system and through emails sent to all active VSB members, to allow lawyers with a statewide practice to evaluate judges outside their home jurisdictions.
Judges concerned about negative feedback in an interim evaluation need to “embrace the facilitator portion of the program” and solicit suggestions from the experienced judge guiding them through the JPE process, Obenshain said.
Both committee chairs emphasized the importance of maintaining relationships with their local legislative delegations, who likely know best the judge’s reputation in the community.
Demeanor is all, according to Albo. “It all comes down to being nice. You have to keep that demeanor.” “I would put fairness on that list as well,” Obenshain said.
Sharing JPE reports
“You can voluntarily give us your interim report,” Albo said. “Maybe you did not know you had these reports” showing problems later in your judicial term.” Albo said one judge’s interim report “was fantastic, which helped her a lot.”
But program officials said their general advice to judges has been not to share their confidential evaluations. When some judges provide the confidential report and others do not, it leads to assumptions that some judges are hiding something.
“If you’re not keen about showing it, that creates a tension,” Powell said.
“I’m not going to ask somebody to provide it, but if they volunteer the [interim] report, I’m more than happy to take a look at it,” Obenshain said. “Sharing that voluntarily of their own volition may be a game-changer.”
Obenshain reminded the judges that the committees certify judges for election, but it’s the legislature as a whole who makes the call.
“We really do defer to legislators in those jurisdictions” with vacancies, Obenshain said. “We place a lot of emphasis on feedback being received from members of the delegations in those areas.”
For local judgeships, “in the end, it’s the support of the local delegation, but you should make it easy for them by having high JPE scores,” Albo said.