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Bar News - August 19, 2011

Opinion: Performance Reviews for Judges Need to be Public


In the next session of the Legislature there will be two pieces of legislation on the subject of performance reviews of judges. The first is a constitutional amendment (CACR 11) relating to the election of judges and the second is House Bill 344 which calls for a citizen’s commission to conduct performance reviews for each judge.

Both the bill and constitutional amendment will allow citizens to evaluate the job performance of New Hampshire judges. Currently citizens evaluate elected officials every two years with their ballot. Executive branch officials are appointed for a term of years, and each is subjected to a performance review by the Governor and Executive Council prior to reappointment. But there is no meaningful performance review for individual judges. Judges are appointed for life, and when appointed they seem to pass into a new dimension, totally out of review by citizens. If there is poor performance, the only action the citizens can institute is through the legislature with an impeachment or address process; a most difficult, lengthy, harsh and expensive process.

In 47 states, the voter has a say as to selecting or retaining a judge; only three states provide for life appointments.

In fairness to our judicial branch management, performance reviews on judges are conducted every three years. However, the review process is far from adequate. First the results do not identify a specific judge; the review report is a summary by the group of judges evaluated, and not reporting judges by name. Second the process is statistically flawed in that it is based on an inadequate survey process. Consider if a judge has 1,000 cases a year. In three years there is a potential opportunity for comments from each party in the case, thus 6,000 possible responses in the three-year period. In the 2008 report, the court reviewed 25 judges. Only 828 performance review survey responses were returned – an average of 33 per judge. This is a response rate of 0.6 percent – wholly inadequate. More troubling was the report that two-thirds of the pro se respondents found the judge was not fair and impartial to each side in the case.

As a long-retired attorney, I can testify that our judges are of the highest quality, but so are the elected and non-judge appointed officials; each is subjected to performance reviews as individuals. So why not judges? They are public officials. While I have a high opinion as to the quality of members of the judicial branch, the public does not. For this reason alone, public performance reviews of judges would greatly assist in changing the poor view of judges that the public holds.

Here are four ways the matter can be changed by rule or law:

1. The Judicial Branch can improve its performance review program. This can be done by rules. Expand the evaluation committee; add members of the public, legislators, attorneys. Improve the mythology so that the results are statistically valid. Lastly, report the results by name.

2. Pass a bill that mandates that every judge come before the Governor and Executive Council for a public review hearing every five or so years.

3. Pass House Bill 344 and establish a citizen’s commission for performance review of judges.

4. Pass CACR 11, as amended. This constitutional amendment retains the right of the Governor and Council to appoint judges, but provides for a non-partisan retention vote by the citizens in the general election every six years. While the first three options will not provide a method to eliminate a poorly performing judge without the impeachment or address process, CACR 11 will.

Option 2 and 4 are currently before the House Judiciary Committee and will be heard in a sub-committee this autumn. If you agree or disagree, I encourage you to present your suggestions to members of the Judiciary Committee. Irrespective of your views on the pending legislation, I hope that you concur that each public official serving in the legislative, executive or judicial branch is a public servant and each is answerable to the citizens.

Representative Robert H. Rowe is chair of the New Hampshire House Judiciary Committee.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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