by Justice Charles T. Wells
Florida Supreme Court
In September 2006, Florida Supreme Court Chief Justice Fred Lewis established a special Committee on Judicial Evaluations, consisting of a diverse group of judges, lawyers, and laypersons. Judge Peter D. Webster of the First District Court of Appeal chaired the committee that studied methods of judicial evaluation and made recommendations for the process of judicial evaluation.
The committee collected what it believed was all of the available and relevant material from various jurisdictions with respect to past and present judicial evaluation programs, including information and evaluation tools from The Florida Bar, local bar associations, the American Bar Association, the National Center for State Courts, the American Judicature Society and the University of Denver Institute for the Advancement of the American Legal System.
After assimilating the materials, the committee heard from individuals who had insight into and experience with judicial evaluation programs. These individuals included Seth Andersen, executive vice president of the American Judicature Society, Judge Philip Espinosa of the Arizona Court of Appeals, Judge Patricia Cottrell of the Tennessee Court of Appeals and Judge Jacqueline Griffin of Florida’s Fifth District Court of Appeal. Each of these individuals was very informative as to the positives and negatives of evaluation programs.
Based upon this research, the committee voted 13-6 that no programs beyond those currently in place in Florida should be recommended. The committee concluded that the current self-assessments by Florida judges and the assessments of the judiciary conducted by the Bar and local bar associations combine to provide the most beneficial, practical and effective vehicle and impetus for improving the quality of Florida’s judges and disseminating relevant information to the public of the evaluation programs reviewed.
Those who voted against the creation of a judicial evaluation commission or similar entity focused on the potential danger to judicial independence posed by such judicial evaluation entities.
I fully agree with the committee’s recommendation. From my studies of judicial evaluation programs, which began on Florida Bar committees in the 1980s, and from considering the materials and presentations provided to the most recent committee, I have concluded that judicial evaluation programs that incorporate an evaluation commission or similar entity present a grave danger to judicial independence.
Judicial evaluation commissions have several inherent problems: Who should judge the judges? How should those individuals be selected? What criteria should be used to evaluate the subject judges? How can the evaluation process be structured to avoid influencing a judge’s decision-making in an individual case?
In their article, “A Fresh Look at Judicial Performance Evaluation in California,” Rebecca Love Kourlis and Jordan M. Singer state that the “integrity of judicial evaluations is only as high as the integrity of those performing them.” This observation is correct beyond debate.
The core theoretical value of the American judicial system is that decision-making is to be done by a judge who is unencumbered by influences external to the case at hand. The practical reality, though, is that there are innumerable forces constantly working to encumber and influence decision-making.
Political and financial interests are at stake daily in our courts. It is natural and certain that the supporters of those interests are going to try to promote and protect those interests by influencing a court’s decision-making.
Yet, rather than protect judges from outside influences, judicial evaluation commissions further expose this decision-making process to outside influences because a judicial evaluation commission is a ready target for special interest groups.
I understand the proponents of judicial evaluation commissions maintain it can be insulated from special interests by requiring the membership be selected by the chief justice of the state court and be composed of nonpartisan individuals drawn from public interest groups and retired judges. But Florida’s experience with judicial selection causes me to conclude that a permanent, truly independent commission is not realistic.
Florida adopted merit selection of appellate judges in the 1970s and held its first merit retention election in 1978. The method of selection was made a part of the judicial article of the Florida Constitution. In the event of an appellate opening, the plan called for a judicial nominating commission to screen candidates and recommend a list of qualified candidates to the governor. The governor was required to appoint a judge from that list.
The original composition of the judicial nominating commissions was three members selected by The Florida Bar Board of Governors, three members selected by the governor, and three members selected by those six members. There was a requirement for lay membership among the nine.
However, the membership of the judicial nominating commissions was defined by statute, not by constitutional provision. In 2001, the Florida Legislature decided that the statutory scheme should be changed to give the governor the authority to appoint all members of a judicial nominating commission. This change obviously increased the potential for political influence in the selection of judges from the original appointment process.
I recognize that judicial selection is generally a political process and that this change in appointment of members of judicial nominating commissions is understandable as a political change in that process. But, in my view, the same political influence would not be appropriate with respect to appointments to judicial evaluation commissions.
If a commission is organized, even if the appointment method is acceptable and sufficiently involves judges themselves, there can be no bulletproof guarantee that the judicial evaluation body will remain free of legislative or executive influence. Again, special interest forces are constant in their need and desire to influence judicial decision-making. From the perspective of special interests, becoming involved in the evaluation of judges would be an effective way to influence court decisions.
I do not believe the doctrine of separation of powers would survive judges being evaluated by a commission appointed by the other branches of the government, either the executive or the legislative. Our government depends on three strong branches and the natural tension between the judiciary and the other two branches.
I am strongly committed to judicial restraint and the duty of courts to respect the roles of the executive and legislative branches. But, by the same token, the executive and legislative branches must not encroach upon independent judicial decision-making. Courts are called upon daily to rule upon the actions of the executive branch. Courts are likewise called upon to rule upon the constitutionality of legislative acts.
The role of the courts is to protect personal rights against intrusions by the other branches of government and to protect the branches from intrusion by one another. The danger to judicial independence is self-evident if another branch is allowed to acquire appointment control over a commission that evaluates the judges who make those rulings.
An additional concern is whether evaluation of judges outside of the appellate process will become an ex parte factor in judges’ decisions in individual cases. If a non-participant evaluator enters a judge’s courtroom, the judge’s reaction to that evaluation becomes an extra-record factor in that case. The parties have no way to question the evaluator or to assess what, if any, influence the evaluation is having on the judge during their litigation.
I conclude the appellate process remains the preferred method for a judge’s adjudication and management of individual cases. The appellate process best protects the rights of the parties to have their case decided on the record developed in that case.
Furthermore, I conclude that judicial conduct that is dishonest or in violation of the judicial code is properly reviewed and addressed through a disciplinary body, which in Florida exists as the Judicial Qualifications Commission.
I recognize that there is misconduct by judges not remedied by the appellate process or by judicial disciplinary institutions. I know that, unfortunately, there are some judges who are not free from bias, who do not have the required temperament to be a judge or who are arrogant, discourteous or disrespectful to those who appear in their courtrooms. There are judges who do not start proceedings on time, who do not make decisions on a timely basis or who do not spend the time or have the skill to perform the judicial role the public depends upon and expects.
Likewise, I appreciate the very real dilemma for judges who have to run for election in large metropolitan areas such as Miami-Dade County, where the electorate presently has no widely accepted method for evaluating judicial candidates standing for election. However, I believe these issues are best addressed by utilizing peer groups that work with judges rather than the creation of a commission to oversee judges.
In my experience, local bench-bar committees of judges and lawyers who are respected by peers in their local communities are the most effective way to ensure high quality judges serve. I have also observed that bar-created surveys and polls provide useful feedback to individual judges and can be used to disseminate information about the role of judges and judicial performance to the public.
This approach does not carry with it the risk to judicial independence that I believe is inherent in judicial evaluation commissions. Accordingly, I encourage Florida and other states to foster peer evaluation rather than risk compromising the critically important independence of the state judiciaries.
Justice Wells assumed his duties as justice of the Florida Supreme Court on June 16, 1994, appointed by Gov. Lawton Chiles. He served as chief justice from June 2000 through June 2002.