Three years ago this week, Denver-based Institute for the Advancement of the American Legal System (IAALS) - “a national, non-partisan organization dedicated to improving the process and culture of the civil justice system” – hosted a National Conference on Evaluating Appellate Judges (on 11-12 August 2011) at the University of Denver (Sturm Hall, 2000 E. Asbury Avenue, Denver CO 80208).
Clear The Bench Colorado Director Matt Arnold was, by special invitation, a featured panelist on the topic of “Evaluating Appellate Judges: Are we doing it right? How can we do it better?”
(Short answers: “NO”, and “view CTBC's Evaluations of Judicial Performance page for an idea”).
To the Institute’s credit, they (IAALS) extended the invitation even after being taken to task for their involvement in the “Know Your Judge” campaign which likely violated Colorado campaign finance laws in advocating against Clear The Bench Colorado’s judicial accountability efforts during the state’s 2010 judicial retention elections without ever bothering to register with the Office of Secretary of State, as required by law.
Conference panelists and attendees shared widespread agreement on the need for substantive evaluation of judicial performance (even as opinions differed on the best means for reaching that goal) as a "vital component for ensuring public trust and confidence in the judiciary." The IAALS Post-Conference Final Report quoted Clear The Bench Colorado Director Matt Arnold on that topic:
Clear the Bench Colorado Director Matt Arnold echoed this sentiment: “Providing substantive information is not only important for the judges…It is absolutely critical to cementing respect for the process and respect for the rule of law.”
Recommendations for Improving Appellate Performance Evaluation
A strong majority of conference participants agreed that review of written opinions is an essential component of the evaluation process:
As the principle work product of appellate judges, and the primary—if not only—way in which appellate judges communicate the legitimacy of their decisions, conference participants were unanimous in expressing a need for some sort of opinion review, based upon appropriate criteria, as part of the JPE process. (IAALS Post-Conference Final Report)
Despite the widespread concurrence on the need to consider written opinions of appellate judges as the principal source for evaluations, few conference participants had concrete ideas on how to go about evaluating appellate opinions and presenting the results in a format useful to the public - the voters who have the final word.
(The exception, of course, was Clear The Bench Colorado's "Evaluating Appellate Judges")
The conference's final report, typically, punted:
"No clear direction emerged from the conference as to the approaches that should be taken in evaluating appellate opinions. Accordingly, IAALS established a task force to study this issue in detail and formulate recommendations for states interested in changing an existing, or incorporating a new, system for appellate opinion review as part of the judicial performance evaluation process."
Several months (almost a year) later, the "task force" issued its report:
AN OPINION ON OPINIONS: Report of the IAALS Task Force on Appellate Opinion Review
Unfortunately, the "task force" recommendations simply perpetuated the current model of failing to provide relevant, substantive evaluations of judicial performance against a standard of constitutionality. Similar to Colorado's current model of non-evaluative "evaluations" the report recommended training virtually guarantees a whitewash providing little or no information useful in distinguishing "good" judicial performance from bad:
Training for Opinion Reviewers:
Coordinators of performance evaluation programs should provide adequate training to opinion evaluators, to ensure consistency both in conducting the evaluation and in understanding the purpose of the evaluation—i.e., to assess the quality and clarity of the opinion rather than to revisit the particular outcome(s) reached. ("Opinion on Opinions", p.3)
Another year later (two years after the conference), the IAALS "task force" issued an update:
AN INFORMED OPINION: Direct Opinion Review and Appellate JPE
Unfortunately, the updated IAALS report just parroted the legal establishment line about "official" JPE (Judicial Performance Evaluations) providing "substantive" information of any value to voters.
Moreover, the incestuous relationship of IAALS with the state's "official" (taxpayer-funded) organization, the Colorado Office of Judicial Performance Evaluation (COJPE) - the organization's executive director, Jane Howell, was one of five members of the "task force" appointed to generate recommendations - undermines the credibility of the "task force" report (which, unsurprisingly, endorses an expanded but otherwise fundamentally unchanged status quo).
There is a clear public need and demand for substantive, independent evaluations of judicial performance - but, just as clearly, the "official" COJPE "rubberstamp reviews" and consistent recommendations to reflexively retain incumbents (99% overall, and a staggering 100% "retain" recommendation record at the appellate court level) is NOT a credible solution.
Clear The Bench Colorado has shown the way towards a method of substantive, informative, well-researched and extensively documented evaluations of judicial performance - a model that could (and perhaps should) be emulated nationwide.