Conference will explore how to evaluate judges

Jessica M. Karmasek Jul. 27, 2011, 1:11pm


DENVER (Legal Newsline) - The Denver-based Institute for the Advancement of the American Legal System is hosting a national conference on appellate judicial performance evaluation next month.

The institute, which aims to "advance solutions to the problems plaguing the civil justice system," will hold the conference Aug. 11 and 12 at the University of Denver. It is open to the public.

"Appellate judges should be evaluated -- to equip them to improve their own performance, to provide essential information to voters in retention election states, to ensure their accountability for their performance, and to enhance public confidence in the courts," said Dan Drayer, communications director for the institute.

"It should be done in such a way that it doesn't threaten their decisional independence, but it should capture all aspects of their work."

Topics include:

- The appellate judge: What makes a good appellate judge? Can we capture these qualities in the evaluation process?;

- Evaluating appellate judges: Are we doing it right? How could we do it better?; and

- Retention elections, special interests, and voters: Perspectives from a justice, a journalist and a scholar.

Drayer said last year's election cycle proved that once-overlooked appellate judicial elections "suddenly became flash points for political attacks and tons of money."

He pointed to elections in Alaska, Illinois and Iowa.

In Iowa, voters in November ousted three Supreme Court justices who helped make same-sex marriage in the state legal.

While all seven justices on the Court ruled with Chief Justice Marsha Ternus and Justices David Baker and Michael Streit, those three were the only ones whose seats were up for retention. None of them received the 50 percent "yes" vote needed to remain on the bench.

Each of the three justices simply needed more "yes" than "no" votes to be elected for another eight-year term.

The three faced no opponents, and none of the judges raised money for the campaign.

The vote marked the first time a member of the Iowa Supreme Court was rejected by the voters under the current system that began in 1962.

Drayer also pointed to Wisconsin and its "contentious" judicial climate.

In Wisconsin, Supreme Court Justice David Prosser faced a stiff challenge from Assistant Attorney General JoAnne F. Kloppenburg for his seat on the high court.

After a close race -- Prosser beat out Kloppenburg by about 7,000 votes -- Kloppenburg conceded defeat in June.

But the April election wasn't without controversy.

A tax-exempt "independent issue advocate" called the Greater Wisconsin Committee was accused of running ads targeting Prosser, accusing him of furthering Gov. Scott Walker's conservative agenda.

And other groups flooded the airwaves in an attempt to oust Prosser.

The Wisconsin Chamber of Commerce and the Club for Growth also spent more than $2 million in ads attacking Kloppenburg.

A final report by the Brennan Center for Justice said nearly $3.6 million was spent on television ads in Wisconsin.

Drayer said all of this adds up to increasing attention on appellate judges and how they are or should be evaluated.

"We want to engage the debate about what makes a good appellate judge and discuss whether it's possible to capture those qualities in an evaluation process," he said.

"Are the existing methods of evaluation working, and if not, what could be improved? This discussion can be divisive, so where are the areas of disagreement specifically, and can people find any common ground?"

The institute, which convened its first conference on judicial performance evaluation in 2008, decided this year's conference should focus specifically on evaluating appellate judges.

"States tend to use the same approaches to evaluating trial and appellate judges, but their roles and responsibilities are very different and it's important to tailor the evaluation process accordingly," Drayer said.

Last year's "retention attacks" gave convening such a conference an even greater sense of urgency, he said.

"We wondered how the Iowa elections might have turned out differently if they had an official JPE program. It might not have changed the outcome, but it might have changed the tone or done less damage to the public image of the court. It might also have given the justices something besides 'judicial independence' to defend themselves with," Drayer said.

The institute, in hosting the conference, hopes to educate the general public on what qualities appellate judges should possess and how voters can assess judges in the context of retention elections.

For those attendees who are representatives of official judicial performance evaluation programs, the institute says it wants to provide them with options for improving their own evaluation processes.

The event's featured speaker is Mark Cady, current chief justice of the Iowa Supreme Court. He is expected to provide a fellow justice's perspective on last year's elections and speak on judicial performance evaluation, for which he has expressed support.

Other participants include: Matt Arnold, director, Clear the Bench Colorado; John Broderick, dean, University of New Hampshire School of Law; Russell Carparelli, judge, Colorado Court of Appeals; Guy-Uriel Charles, professor, Duke University School of Law; Dana Fabe, justice, Alaska Supreme Court; Richard Gabriel, judge, Colorado Court of Appeals; Raphael Gomez, legal counsel,; Jacqueline Griffin, judge, Florida 5th District Court of Appeals; Mitu Gulati, professor, Duke University Law School; Dan Hall, vice president, National Center for State Courts; Jane Howell, executive director, Colorado Office of Judicial Performance Evaluation; Rebecca Love Kourlis, executive director, IAALS; Steve Leben, judge, Kansas Court of Appeals; Nancy Norelli, vice-chair, North Carolina Bar Association JPE Committee; Penny Pether, professor, Villanova Law School; Malia Reddick, director of judicial programs, IAALS; Karen Salaz, district administrator of the 19th Judicial District of Colorado; Anthony Schofield, vice-chair of the Utah Judicial Performance Evaluation Commission; Grant Schulte, correspondent, Associated Press; Jordan Singer, professor, New England Law | Boston; Sarah Walker, president, Minnesota Coalition for Impartial Justice; and Luke Wyckoff, chief visionary office, Social Media Energy.

"It should be a very compelling conference, especially given the ripeness of the subject matter," Drayer said.

To view a copy of the conference's agenda, click here.

From Legal Newsline: Reach Jessica Karmasek by email at

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