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Rule 3-111 Performance evaluation of senior judges and courtcommissioners.

Intent:

To establish a performance evaluation, including the criteria uponwhich senior judges and court commissioners will be evaluated, the standardsagainst which performance will be measured and the methods for fairly,accurately and reliably measuring performance.

To generate and to provide to 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)  Performanceevaluations.

(1)(A) On forms provided by the administrative office, thepresiding judge of the district a court commissioner primarily serves shall completean annual evaluation of the court commissioner?s performance.

(1)(B) On forms provided by the administrative office, thepresiding judge of the Court of Appeals shall complete an evaluation of theappellate senior judge?s performance every eighteen months starting after thesenior judge?s initial term.

(1)(C) On forms provided by the administrative office, thepresiding judge of the district an active senior judge primarily serves shallcomplete an evaluation of the senior judge?s performance every eighteen monthsstarting after the senior judge?s initial term.

(1)(D) On forms provided by the administrative office, the chairof the Board of Justice Court Judges shall complete an evaluation of the activesenior justice court judge?s performance every eighteen months starting afterthe senior judge?s initial term.

(1)(E) The presiding judge shall provide a copy of eachcommissioner evaluation to the Judicial Council.

(1)(F) If a senior judge receives an overall ?Needs Improvement?rating on the performance evaluation, the evaluator shall provide a copy of theevaluation to the Judicial Council.

(2) Active senior judges and court commissioners shall beevaluated and certified upon the following criteria:

(2)(A) demonstration ofunderstanding of the substantive law and any relevant rules of procedure andevidence;

(2)(B) attentiveness to factualand legal issues before the court;

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

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

(2)(E) ability to write clearjudicial opinions;

(2)(F) ability to clearlyexplain the legal basis for judicial opinions;

(2)(G) demonstration ofcourtesy toward attorneys, court staff, and others in the commissioner?s orsenior judge?s court;

(2)(H) maintenance of decorumin the courtroom;

(2)(I) demonstration of judicial demeanor and personal attributesthat promote public trust and confidence in the judicial system;

(2)(J) preparation for hearingsor oral argument;

(2)(K) avoidance of improprietyor the appearance of impropriety;

(2)(L) display of fairness andimpartiality toward all parties;

(2)(M) ability to clearlycommunicate, including the ability to explain the basis for written rulings,court procedures, and decisions;

(2)(N) management of workload;

(2)(O) willingness to shareproportionally the workload within the court or district, or regularlyaccepting assignments; and

(2)(P) issuance of opinions andorders without unnecessary delay.

(3) Senior judges shall also be evaluated on their ability andwillingness to use the court?s case management systems in all cases.

(4) Standards of performance.

(4)(A) Survey of attorneys.

(4)(A)(i) The Council shall measuresatisfactory performance by a sample survey of the attorneys appearing beforethe senior judge or court commissioner during the period for which the seniorjudge or court commissioner is being evaluated. The Council shall measuresatisfactory performance based on the results of the final survey conductedduring a court commissioner?s term of office, subject to the discretion of acourt commissioner serving an abbreviated initial term not to participate in asecond survey under Section (4)(A)(vi) of this rule.

(4)(A)(ii) Survey scoring. The survey shall be scored as follows.

(4)(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.

(4)(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.

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

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

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

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

(4)(A)(iii) Survey respondents. The Administrative Office of theCourts shall identify as potential respondents all lawyers who have appearedbefore the court commissioner during the period for which the commissioner isbeing evaluated.

(4)(A)(iv) Exclusion from surveyrespondents.

(4)(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.

(4)(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.

(4)(A)(v) Number of survey respondents. The Surveyor shallidentify 180 respondents or all attorneys appearing before the courtcommissioner, whichever is less. All attorneys who have appeared before thesenior judge shall be sent a survey questionnaire as soon as possible after thehearing.

(4)(A)(vi) Administration of thesurvey. Court commissioners shall be the subject of a survey approximately sixmonths prior to the expiration of their term of office. Court commissionersshall be the subject of a survey during the second year of each term of office.Newly appointed court commissioners shall be the subject of a survey during thesecond year of their term of office and, at their option, approximately sixmonths prior to the expiration of their term of office.

(4)(A)(vii) Survey report. The Surveyor shall provide to thesubject 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.

(4)(B) Survey of presiding judges and court staff. The Councilshall measure performance of senior judges by a survey of all presiding judgesand trial court executives of districts in which the senior judge has beenassigned. The Administrative Office of the Courts shall distribute survey formswith instructions to return completed surveys to the Surveyor. The Surveyorshall provide to the subject of the survey, the subject?s presiding judge, and the Judicial Council the numberand percentage of respondents for each of the possible responses on each surveyquestion and all comments, retyped and edited as necessary to redact therespondent?s identity. The Judicial Council shall determine whether the seniorjudge?s survey scores are satisfactory.

(4)(C) Case under advisement standard. A case is considered to beunder advisement when the entire case or any issue in the case has beensubmitted to the senior judge or court commissioner for final determination.The Council shall measure satisfactory performance by the self-declaration ofthe senior judge or court commissioner or by reviewing the records of thecourt.

(4(C)(i) Asenior judge or court commissioner in a trial court demonstrates satisfactoryperformance by holding:

(4)(C)(i)(a) no more than three cases per calendar year underadvisement more than 60 days after submission; and

(4)(C)(i)(b) no case under advisement more than 180 days aftersubmission.

(4)(C)(ii) A senior judge in the court of appeals demonstratessatisfactory performance by:

(4)(C)(ii)(a) circulating no more than an average of threeprincipal opinions per calendar year more than six months after submission withno more than half of the maximum exceptional cases in any one calendar year;and

(4)(C)(ii)(b) achieving a finalaverage time to circulation of a principal opinion of no more than 120 daysafter submission.

(4)(D) Compliance with education standards. Satisfactoryperformance is established if the senior judge or court commissioner annuallycomplies with the judicial education standards of this Code, subject to theavailability of in-state education programs. The Council shall measuresatisfactory performance by the self-declaration of the senior judge or courtcommissioner or by reviewing the records of the state court administrator.

(4)(E) Substantial compliance with Code of Judicial Conduct.Satisfactory performance is established if the response of the senior judge orcourt commissioner demonstrates substantial compliance with the Code ofJudicial Conduct, if the Council finds the responsive information to becomplete and correct and if the Council?s review of formal and informalsanctions lead the Council to conclude the court commissioner is in substantialcompliance with the Code of Judicial Conduct. Under Rule 11-201 and Rule11-203, any sanction of a senior judge disqualifies the senior judge fromreappointment.

(4)(F) Physical and mental competence. Satisfactory performance isestablished if the response of the senior judge or court commissionerdemonstrates physical and mental competence to serve in office and if theCouncil finds the responsive information to be complete and correct. TheCouncil may request a statement by an examining physician.

(5)(A) At its meeting in August, the Council shall begin theprocess of determining whether the senior judges and court commissioners whoseterms of office expire that year meet the standards of performance provided forin this rule. The Administrative Office of the Courts shall assemble allevaluation information, including:

(5)(A)(isurvey scores;

(5)(A)(ii) judicial educationrecords;

(5)(A)(iii) self-declaration forms;

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

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

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

(5)(B) Prior to the meeting the Administrative Office of theCourts shall deliver the records to the Council and to the senior judges andcourt commissioners being evaluated.

(5)(C) 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.

(5)(D) If the Council finds the senior judge or court commissionerhas met the performance standards, it is presumed the Council will certify thesenior judge or court commissioner for reappointment. If the Council finds thesenior judge or court commissioner did not meet the performance standards, itis presumed the Council will not certify the senior judge or court commissionerfor reappointment. The Council may certify the senior judge or courtcommissioner or withhold decision until after meeting with the senior judge orcourt commissioner.

(5)(E) A presumption against certification may be overcome by ashowing of good cause to the contrary. A presumption in favor of certificationmay be overcome by:

(5)(E)(ireliable informationshowing non-compliance with a performance standard; or

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

(5)(F) At the request of the Council the senior judge or courtcommissioner shall meet with the Council in September. At the request of theCouncil the presiding judge shall report to the Council any meetings held withthe senior judge or court commissioner, the steps toward self-improvementidentified as a result of those meetings, and the efforts to complete thosesteps. Not later than 5 days after the August meeting, the AdministrativeOffice of the Courts shall deliver to the senior judge or court commissionerbeing evaluated notice of the Council?s action and any records not alreadydelivered to the senior judge or court commissioner. The notice shall containan adequate description of the reasons the Council has withheld its decisionand the date by which the senior judge or court commissioner is to deliverwritten materials. The Administrative Office of the Courts shall deliver copiesof all materials to the Council and to the senior judge or court commissionerprior to the September meeting.

(5)(G) At its September meeting in a session closed in accordancewith Rule 2-103, the Council shall provide to the senior judge or courtcommissioner adequate time to present evidence and arguments in favor ofcertification. Any member of the Council may present evidence and arguments of whichthe senior judge or court commissioner has had notice opposed to certification.The burden is on the person arguing against the presumed certification. TheCouncil may determine the order of presentation.

(5)(H) At its September 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.

(5)(I) 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.

 

Effective January 10, 2017