BULLETINS FROM ALOHA

A PROPOSAL FOR A STATEWIDE SYSTEM
OF JUDICIAL PERFORMANCE EVALUATIONS IN OREGON

By Lauren Paulson



Dear OSB BOG Member:

OSB President Gerry Gaydos has allowed me a few minutes to speak with you this Friday at your BOG meeting. The purpose is to update you on the subject of a statewide formal system of judicial performance evaluations for Oregon.

The blueprint for a statewide judicial performance evaluation program for Oregon is to be found in Exhibit #5 below. (Note the online addresses for some Exhibits are stated and you can download as you see fit. The other Exhibits will be available.)

THE OREGON STATE BAR (OSB)

Prologue

Our democratic system requires some degree of citizen oversight and accountability from all branches of government. If anyone is put in fear of speaking out then democracy fails.


OSB Board of Governor's (BOG) Committee on the Judiciary


2004   In 2004 The Oregon State Bar Board of Governors (BOG) voted to implement a statewide judicial performance evaluation program. The Oregon State Bar BOG had a (now moribund) Judiciary Committee in 2004 which compiled a detailed study of other state court judicial evaluation systems in a memo first dated May 7, 2004 which observed "Oregon has no established judicial evaluation procedure. Many other states do." (Exhibit 3) The pros were listed as "help judges improve; help the public evaluate judges at election time". The cons listed "...alienating judges further, complexity of the task; cost".

BOG minutes of August 13, 2004 state that Oregon Supreme Court Chief Justice Wallace Carson told the OSB President that "...this would not be received well by the judiciary." By consensus, BOG's Committee on the Judiciary and the Full Board agreed to pursue an Oregon prototype for a statewide formal judicial evaluation program at this meeting.

An October 2004 Draft Black Letter Guidelines from the ABA on statewide judicial performance evaluations was available to the Committee though never discussed.

2005   The American Bar Association formally adopted their Black Letter Guidelines for the Evaluation of Judicial Performance in February 2005. (Exhibit 4) These guidelines state: "Judicial evaluation programs improve the performance of individual judges and the judiciary as a whole."

In a March 2005 OSB's BOG Judiciary Committee meeting with Chief Justice Carson the latter expressed the view that performance evaluations for judges would "...be helpful, but had a concern about the cost." He went on to state the bar needed to keep in mind the fundamental notion of "first, do no harm".

The BOG committee decided that the goal of improving the image of the legal profession had, as a subset, the improvement of the performance of judges.

In July 2005 the committee planned to present an action plan on judicial evaluations to BOG on July 2006 with a goal of commencing the program in January 2007.

The OSB Judiciary Committee then was sidetracked to the subject of judicial independence. The Bar's General Counsel, George Riemer's first Draft report of August 2005 focuses on "Judicial Independence". The conclusion of the Draft report states: "The Committee on the Judiciary believes the (BOG) should endorse the concept of the need for Oregon judges to participate in a performance evaluation program." The OSB Draft report does not mention the existence of the ABA Black letter Guidelines for Judicial Evaluations mentioned above.

Chief Justice Carson announces in September, 2005 that he was retiring. Paul De Muniz is elected Chief Justice of Oregon's Supreme Court following that announcement in 2005.

On November 30, 2005 George Riemer's letter to Chief Justice Carson and Justice De Muniz states "(BOG) appreciates that the topic of judicial performance evaluations is potentially provocative...".

On December 14, 2005 George Riemer writes to only Justice Paul De Muniz summarizing their meeting of December 6, 2005, noting that Justice De Muniz opined that "...any judicial performance evaluation process...could do more harm than good..." They agreed that Justice De Muniz would "...nominate a number of judges to meet with the Committee on the Judiciary over the course of 2006...". Justice De Muniz confirms Mr. Riemer's letter summary of their meeting in a letter dated December 22, 2005.

2006 The Oregon State Bar BOG Committee on the Judiciary minutes of November 18, 2006 states: "The committee continues to believe that judicial evaluations are a good idea, but recognizes that this is not the time to pursue them."

The University of Denver Law School develops their Blueprint for Statewide Judicial Performance Evaluations. (Exhibit 5)

2008   Oregon's Supreme Court is rated at the virtual bottom of all fifty states in the United States in both productivity and competence according to a University of Chicago Law School 2008 study cited in # 6 below. This study is now published in final form in 58 Duke Law Journal 1313 (2009)

Exhibits

1. The Robing Room -- This is an online resource to evaluate Oregon judges now. http://www.therobingroom.com

2. Oregon's Administrative Law Judges have had a performance management policy for over ten years.  ORS 656.724  Performance Evaluation Guidelines for Oregon's Administrative Law Judges.

3. National Center for State Courts --- State by state summary of existing judicial performance evaluation programs along with evaluation procedures.

4. The American Bar Association Guidelines for the Evaluation of Judicial Performance. These judicial performance evaluation guidelines were developed and approved in February of 2005.

5. A Blueprint for Judicial Performance Evaluation, Transparent Courthouse, Institute for the Advancement of the American Legal System. (2006)

6. Choi, Gulati, Posner, Which States Have the Best (and Worst) High Courts, The Law School of The University of Chicago, (May, 2008), 58 Duke Law Journal 1313 (2009

Recommendation

Judicial pay in Oregon is now controlled by the "Public Officials Compensation Commission" -- http://pocc.oregon.gov/DAS/HR/pocc/index.shtml

This is perfect. Every Judicial Performance Evaluation program in the U.S. uses a statewide commission for evaluating judges. Leadership in Oregon, whether it be the Oregon State Bar, the Legislature or a coalition of leaders should join with the Public Officials Compensation Commission to study, evaluate and adopt a judicial performance evaluation program for Oregon. Without bureaucratic delay. Oregon should not put this program in the Judicial Department.




CONTACT:

Lauren Paulson                                                               971 219 5859
3980 SW 170th Ave.                                                        laurenjpaulson@yahoo.org
Aloha, OR 97007                                                              bulletinsfromaloha.org June 11, 2009