Part One -- The Trial Courts
Having reached the upper tier of middle management in corporate life I was surprised how mediocre my bosses were and how mediocre was my salary. So I left.
Having reached the upper tier of middle management in the law business in Oregon I had the usual respect for our profession and the bosses (aside from our clients)--the judiciary. At some point I began to challenge some of the dogma of our profession and now know how mediocre is our judiciary.
At the statewide level Oregon Supreme Court Chief Justice Paul J. De Muniz provided a State of the Oregon Courts: Justice in the 21st Century address to the Salem City Club on January 12, 2007. There he focused on three areas: 1.) Overview of local courts, 2.) Budget, 3.) Judicial impartiality. Justice De Muniz pronounced, "...the state of the Oregon judiciary is strong." Hmmmm. How does he know that? He goes on to say, "(our) judiciary system...is strong, accountable and innovative." Then he 'fesses up stating, "The judicial system we have today is not equipped to handle the pace, volume, or complexities of the issues that we...will...face in the future." If that is so, why is former Chief Justice Wallace Carson, whose place he took, garnering all these awards and why did Justice De Muniz complement him in this address for being a "...forward think(er)..". Justice Carson had this Chief job longer than anyone else. If he was a forward thinker then we would be equipped to handle the pace, volume and complexities of the issues we face now and in the future.
One of the requirements of management in any endeavor is measuring performance. Investors in stock usually examine price-to-earnings of a business often called the P/E ratio. That is a measurable and pragmatic way to determine if a company is as good as the leaders say in their reports to the industry. The Oregon State Bar Board of Governors voted in 2004, while I was on the Board, to create a statewide judicial performance evaluation program. There are existing systems for evaluating judicial performance, in Oregon's Workers' Compensation forum, for example. Several states have adopted successful statewide judicial evaluation programs.
In 2006, the Oregon State Bar changed their mind after consultations with Justice Carson and Justice De Muniz. The Oregon State Bar will not develop a judicial evaluation program in Oregon for it's judiciary after all.
So, I asked myself, is there another way to see how Oregon's judiciary is doing? Beginning with a local county presiding judge, I discovered that we measure quantity, not quality. In other words, local presiding judges measure how many lawsuits they are getting and how many judges they have to determine if we need more judges and more courtrooms. Nobody evaluates how the local judges are doing either in terms of quality or quantity.
Oregon Supreme Court Chief Justice De Muniz asked the Oregon legislature for an additional thirteen (13) judges and upgraded courthouses in 2007. The problem is that only 611,946 cases were filed in Oregon courts in 2005, down from the 653,367 filed in 2000 and down from a yearly average of 638,200 over the last six years.
Justice De Muniz is also asking for more bricks and mortar. He describes Oregon's court facility problem as a "crisis". As any lawyer can tell you, wander through any of Oregon's courthouses on Friday afternoon after 2 p.m. and the only noise to be heard is one's own footsteps.
Finally, there is the issue of judicial compensation in Oregon which Justice De Muniz describes as "...near the bottom for compensation nationally". I have a suggestion based on sound management principles. How about judicial pay based on merit? If we had a statewide system of judicial evaluations then we could pay good judges according to performance and get rid of bad judges at the ballot box. Wouldn't this help put clothes on Oregon's judicial emperors?