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Rule 3-111. Performance evaluation of active senior judgesand court commissioners.

 

Intent:

To establish a performance evaluation, including the criteria uponwhich active senior judges and court commissioners will be evaluated, thestandards against which performance will be measured and the methods forfairly, accurately and reliably measuring performance.

 

To generate and to provide to active senior judges and courtcommissioners information about their performance.

 

To establish the procedures by which the Judicial Council willevaluate and certify senior judges and court commissioners for reappointment.

 

Applicability:

This rule shall apply to presiding judges, the Board of JusticeCourt Judges and the Judicial Council, and to the active senior judges andcourt commissioners of the Court of Appeals, courts of record and courts not ofrecord.

 

Statement of the Rule:

(1) Performance evaluations.

(1)(A) Court commissioners.

(1)(A)(i) On forms provided by the administrative office, thepresiding judge of a district or court level a court commissioner serves shallcomplete an evaluation of the court commissioner?s performance by June 1 ofeach year. If a commissioner serves multiple districts or court levels, thepresiding judge of each district or court level shall complete an evaluation.

(1)(A)(ii) The presiding judge shall survey judges and courtpersonnel seeking feedback for the evaluation. During the evaluation period,the presiding judge shall review at least five of the commissioner?s activecases. The review shall include courtroom observation.

(1)(A)(iii) The presiding judge shall provide a copy of eachcommissioner evaluation to the Judicial Council. Copies of plans underparagraph (3)(G) and all evaluations shall also bemaintained in the commissioner?s personnel file in the administrative office.

(1)(B) Activesenior judges. An active senior judge?s performance shall be evaluated by ????? attorneys as provided in paragraph (3)(A)and by presiding judges and court staff as ????? providedin paragraph (3)(B).

 

(2) Evaluation and certification criteria. Activesenior judges and court commissioners shall beevaluated and certified upon the following criteria:

(2)(A) demonstration of understanding of the substantive lawand any relevant rules of ????? procedureand evidence;

(2)(B) attentiveness tofactual and legal issues before the court;

(2)(C) adherence toprecedent and ability to clearly explain departures from precedent;

(2)(D) grasp of the practical impact on the parties of thecommissioner?s or senior judge?s ????? rulings,including the effect of delay and increased litigation expense;

(2)(E) ability towrite clear judicial opinions;

(2)(F) ability toclearly explain the legal basis for judicial opinions;

(2)(G) demonstration of courtesy toward attorneys, courtstaff, and others in the ????? commissioner?sor senior judge?s court;

(2)(H) maintenance ofdecorum in the courtroom;

(2)(I) demonstration ofjudicial demeanor and personal attributes that promote public trust ????? and confidence in the judicial system;

(2)(J) preparation forhearings or oral argument;

(2)(K) avoidance ofimpropriety or the appearance of impropriety;

(2)(L) display offairness and impartiality toward all parties;

(2)(M) ability to clearly communicate, including the abilityto explain the basis for written ????? rulings,court procedures, and decisions;

(2)(N) management ofworkload;

(2)(O) willingness to share proportionally the workload withinthe court or district, or regularly ???????? acceptingassignments;

(2)(P) issuance ofopinions and orders without unnecessary delay; and

(2)(Q) ability andwillingness to use the court?s case management systems in all cases.

 

(3) Standards of performance.

(3)(A) Survey of attorneys.

(3)(A)(i) The Council shall measure satisfactory performance by asample survey of the attorneys appearing before the active senior judge orcourt commissioner during the period for which the active senior judge or courtcommissioner is being evaluated. The Council shall measure satisfactoryperformance based on the results of the final survey conducted during a courtcommissioner?s term of office, subject to the discretion of a courtcommissioner serving an abbreviated initial term not to participate in a secondsurvey under Section (3)(A)(vi) of this rule.

(3)(A)(ii) Survey scoring. The survey shall be scoredas follows.

(3)(A)(ii)(a) Each question of the attorney survey will have sixpossible responses: Excellent, More Than Adequate, Adequate, Less ThanAdequate, Inadequate, or No Personal Knowledge. A favorable response isExcellent, More Than Adequate, or Adequate.

(3)(A)(ii)(b) Each question shall be scored by dividing the totalnumber of favorable responses by the total number of all responses, excludingthe "No Personal Knowledge" responses. A satisfactory score for aquestion is achieved when the ratio of favorable responses is 70% or greater.

(3)(A)(ii)(c) A court commissioner?s performance is satisfactoryif:

(3)(A)(ii)(c)(1) at least 75%of the questions have a satisfactory score; and

(3)(A)(ii)(c)(2) the favorableresponses when divided by the total number of all responses, excluding "NoPersonal Knowledge" responses, is 70% or greater.

(3)(A)(ii)(d) The Judicial Council shall determine whether thesenior judge?s survey scores are satisfactory.

(3)(A)(iii) Survey respondents. The AdministrativeOffice of the Courts shall identify as potential respondents all lawyers whohave appeared before the court commissioner during the period for which thecommissioner is being evaluated.

(3)(A)(iv) Exclusion fromsurvey respondents.

(3)(A)(iv)(a) A lawyer who has beenappointed as a judge or court commissioner shall not be a respondent in thesurvey. A lawyer who is suspended or disbarred or who has resigned underdiscipline shall not be a respondent in the survey.

(3)(A)(iv)(b) With the approval of theManagement Committee, a court commissioner may exclude an attorney from thelist of respondents if the court commissioner believes the attorney will notrespond objectively to the survey.

(3)(A)(v) Number of survey respondents. The Surveyorshall identify 180 respondents or all attorneys appearing before the courtcommissioner, whichever is less. All attorneys who have appeared before theactive senior judge shall be sent a survey questionnaire as soon as possibleafter the hearing.

(3)(A)(vi) Administration ofthe survey. Court commissioners shall be the subject of a surveyapproximately six months prior to the expiration of their term of office. Courtcommissioners shall be the subject of a survey during the second year of eachterm of office. Newly appointed court commissioners shall be the subject of asurvey during the second year of their term of office and, at their option,approximately six months prior to the expiration of their term of office.

(3)(A)(vii) Survey report. The Surveyor shallprovide to the subject of the survey, the subject?s presiding judge,and the Judicial Council the number and percentage of respondents for each ofthe possible responses on each survey question and all comments, retyped andedited as necessary to redact the respondent?s identity.

(3)(B) Non-attorney surveys.

(3)(B)(i) Surveys of presiding judges and court staffregarding non-appellate senior judges. The Council shall measureperformance of active senior judges by a survey of all presiding judges andtrial court executives, or in the justice courts, the Justice CourtAdministrator, of districts in which the senior judge has been assigned. Thepresiding judge and trial court executive will gather information for thesurvey from anonymous questionnaires completed by court staff on the calendarsto which the senior judge is assigned and by jurors on jury trials to which thesenior judge is assigned. The Administrative Office of the Courts shalldistribute survey forms with instructions to return completed surveys to theSurveyor. The survey questions will be based on the non-legal abilityevaluation criteria in paragraph (2).The Surveyor shall provide to the subjectof the survey, the subject?s presiding judge, andthe Judicial Council the responses on each survey question. The JudicialCouncil shall determine whether the qualitative assessment of the senior judgeindicates satisfactory performance.

(3)(B)(ii) Surveys of Court of Appeals presiding judge andclerk of court. The Council shall measure performance of activeappellate senior judges by a survey of the presiding judge and clerk of courtof the Court of Appeals. The presiding judge and clerk of court will gatherinformation for the survey from anonymous questionnaires completed by the otherjudges on each panel to which the appellate senior judge is assigned and by theappellate law clerks with whom the appellate senior judge works. The AdministrativeOffice of the Courts shall distribute the survey forms with instructions toreturn completed surveys to the Surveyor. The survey questions will be based onthe non-legal ability evaluation criteria in paragraph (2). The Surveyor shallprovide to the subject of the survey, the subject?s presiding judge, and theJudicial Council the responses on each survey question. The Judicial Councilshall determine whether the qualitative assessment of the senior judgeindicates satisfactory performance.

(3)(C) Case under advisement standard.

(3)(C)(i) A case is considered to be underadvisement when the entire case or any issue in the case has been submitted tothe senior judge or court commissioner for final determination. For purposes ofthis rule, ?submitted to the senior judge or court commissioner? or?submission? is defined as follows:

(3)(C)(i)(a) When a matter requiringattention is placed by staff in the senior judge?s or court commissioner?spersonal electronic queue, inbox, personal possession, or equivalent;

(3)(C)(i)(b) If a hearing or oralargument is set, at the conclusion of all hearings or oral argument held on thespecific motion or matter; or

(3)(C)(i)(c) If further briefing isrequired after a hearing or oral argument, when all permitted briefing iscompleted, a request to submit is filed, if required, and the matter is placedby staff in the senior judge's or court commissioner?s personal electronicqueue, inbox, personal possession, or equivalent.

A case is no longer under advisement when the senior judge orcourt commissioner makes a decision on the issue that is under advisement or onthe entire case.

(3)(C)(ii)The Council shall measure satisfactoryperformance by the self-declaration of the senior judge or court commissioneror by reviewing the records of the court.

(3)(C)(iii) A senior judge or court commissionerin a trial court demonstrates satisfactory performance by holding:

(3)(C)(iii)(a) no more thanthree cases per calendar year under advisement more than two months aftersubmission; and

(3)(C)(iii)(b) no case underadvisement more than 180 days after submission.

(3)(C)(iv) A seniorjudge in the court of appeals demonstrates satisfactory performance by:

(3)(C)(iv)(a) circulating no more than anaverage of three principal opinions per calendar year more than six monthsafter submission with no more than half of the maximum exceptional cases in anyone calendar year; and

(3)(C)(iv)(b) achieving afinal average time to circulation of a principal opinion of no more than 120days after submission.

(3)(D) Compliance with educationstandards. Satisfactory performance is established if the senior judge orcourt commissioner annually complies with the judicial education standards ofthis Code, subject to the availability of in-state education programs. TheCouncil shall measure satisfactory performance by the self-declaration of thesenior judge or court commissioner or by reviewing the records of the statecourt administrator.

(3)(E) Substantial compliance with Codeof Judicial Conduct. Satisfactory performance is established if theresponse of the senior judge or court commissioner demonstrates substantialcompliance with the Code of Judicial Conduct, if the Council finds theresponsive information to be complete and correct and if the Council?s reviewof formal and informal sanctions lead the Council to conclude the courtcommissioner is in substantial compliance with the Code of Judicial Conduct.Under Rule 11-201 and Rule 11-203, any sanction of a senior judge disqualifiesthe senior judge from reappointment.

(3)(F) Physical and mental competence.Satisfactory performance is established if the response of the senior judge orcourt commissioner demonstrates physical and mental competence to serve inoffice and if the Council finds the responsive information to be complete andcorrect. The Council may request a statement by an examining physician.

(3)(G) Performance and corrective actionplans for court commissioners.

(3)(G)(i) The presiding judge of the district a court commissionerserves shall prepare a performance plan for a new court commissioner within 30days of the court commissioner?s appointment. If a court commissioner servesmultiple districts or court levels, the presiding judge of each district andcourt level shall prepare a performance plan. The performance plan shallcommunicate the expectations set forth in paragraph (2) of this rule.

(3)(G)(ii) If a presiding judge issues an overall ?NeedsImprovement? rating on a court commissioner?s annual performance evaluation asprovided in paragraph (1), that presiding judge shall prepare a correctiveaction plan setting forth specific ways in which the court commissioner canimprove in deficient areas.    

 

(4) Judicial Council certification process

(4)(A) July Council meeting. Atits meeting in July, the Council shall begin the process of determining whetherthe senior judges and court commissioners whose terms of office expire thatyear meet the standards of performance provided for in this rule. TheAdministrative Office of the Courts shall assemble all evaluation information,including:

(4)(A)(i) survey scores;

(4)(A)(ii) judicial educationrecords;

(4)(A)(iii) self-declaration forms;

(4)(A)(iv) records of formaland informal sanctions;

(4)(A)(v) performance evaluations,if the commissioner or senior judge received an overall rating of NeedsImprovement; and

(4)(A)(vi) any informationrequested by the Council.

(4)(B) Records delivery. Priorto the meeting the Administrative Office of the Courts shall deliver therecords to the Council and to the senior judges and court commissioners beingevaluated.

(4)(C) July Council meeting closedsession. In a session closed in compliance with Rule 2-103, theCouncil shall consider the evaluation information and make a preliminaryfinding of whether a senior judge or court commissioner has met the performancestandards.

(4)(D) Certification presumptions. Ifthe Council finds the senior judge or court commissioner has met theperformance standards, it is presumed the Council will certify the senior judgeor court commissioner for reappointment. If the Council finds the senior judgeor court commissioner did not meet the performance standards, it is presumedthe Council will not certify the senior judge or court commissioner forreappointment. The Council may certify the senior judge or court commissioneror withhold decision until after meeting with the senior judge or courtcommissioner.

(4)(E) Overcoming presumptions. Apresumption against certification may be overcome by a showing that a senior judge?s orcourt commissioner?s failure to comply with paragraphs (3)(C) and (3)(D) werebeyond the senior judge?s or court commissioner?s personal control. Apresumption in favor of certification may be overcome by:

(4)(E)(i) reliable informationshowing non-compliance with a performance standard, except as otherwiseprovided in paragraph (4)(E); or

(4)(E)(ii) formal or informalsanctions of sufficient gravity or number or both to demonstrate lack ofsubstantial compliance with the Code of Judicial Conduct.

(4)(F) August Council meeting. Atthe request of the Council the senior judge or court commissioner challenging anon-certification decision shall meet with the Council in August. At therequest of the Council the presiding judge shall report to the Council anymeetings held with the senior judge or court commissioner, the steps towardself-improvement identified as a result of those meetings, and the efforts tocomplete those steps. Not later than 5 days after the July meeting, theAdministrative Office of the Courts shall deliver to the senior judge or courtcommissioner being evaluated notice of the Council?s action and any records notalready delivered to the senior judge or court commissioner. The notice shallcontain an adequate description of the reasons the Council has withheld itsdecision and the date by which the senior judge or court commissioner is todeliver written materials. The Administrative Office of the Courts shalldeliver copies of all materials to the Council and to the senior judge or courtcommissioner prior to the August meeting.

(4)(G) August Council meeting closedsession. At its August meeting in a session closed in accordance withRule 2-103, the Council shall provide to the senior judge or court commissioneradequate time to present evidence and arguments in favor of certification. Anymember of the Council may present evidence and arguments of which the seniorjudge or court commissioner has had notice opposed to certification. The burdenis on the person arguing against the presumed certification. The Council maydetermine the order of presentation.

(4)(H) Final certificationdecision. At its August meeting in open session, the Council shallapprove its final findings and certification regarding all senior judges andcourt commissioners whose terms of office expire that year.

(4)(I) Communication of certificationdecision. The Judicial Council shall communicate its certificationdecision to the senior judge or court commissioner. The Judicial Council shallcommunicate its certification decision for senior judges to the Supreme Courtand for court commissioners to the presiding judge of the district thecommissioner serves.

 

EffectiveNovember 1, 2020