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Rule 3-111.? PerformanceEvaluation of Active Senior Judges and Court Commissioners.

Intent:

To establisha performance evaluation, including the criteria upon which active seniorjudges and court commissioners will be evaluated, the standards against whichperformance will be measured and the methods for fairly, accurately andreliably measuring performance.

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

To establishthe procedures by which the Judicial Council will evaluate and certify seniorjudges and court commissioners for reappointment.

Applicability:

This ruleshall apply to presiding judges, the Board of Justice Court Judges, and theJudicial Council, and to the active senior judges and court commissioners ofthe Court of Appeals, courts of record, and courts not of record.

Statement of the Rule:

(1)       Performanceevaluations.

(1)(A)       Courtcommissioners.

(1)(A)(i)       Onforms provided by the administrative office, the presiding judge of a districtor court level a court commissioner serves shall complete an evaluation of thecourt commissioner?s performance by June 1 of each year. If a commissionerserves multiple districts or court levels, the presiding judge of each districtor court level shall complete an evaluation.

(1)(A)(ii)      Thepresiding judge shall survey judges and court personnel seeking feedback forthe evaluation. During the evaluation period, the presiding judge shall reviewat least five of the commissioner?s active cases. The review shall includecourtroom observation.

(1)(A)(iii)     Thepresiding judge shall provide a copy of each commissioner evaluation to theJudicial Council. Copies of plans under paragraph (3)(G)and all evaluations shall also be maintained in the commissioner?s personnelfile in the administrative office.

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

(2)       Evaluationand certification criteria. Active senior judges and court commissionersshall be evaluated and certified upon the following criteria:

(2)(A)       demonstrationof understanding of the substantive law and any relevant rules of procedure andevidence;

(2)(B)       attentivenessto factual and legal issues before the court;

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

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

(2)(E)       abilityto write clear judicial opinions;

(2)(F)       abilityto clearly explain the legal basis for judicial opinions;

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

(2)(H)       maintenanceof decorum in the courtroom;

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

(2)(J)       preparation for hearings or oral argument;

(2)(K)       avoidanceof impropriety or the appearance of impropriety;

(2)(L)       display of fairness and impartiality toward allparties;

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

(2)(N)       managementof workload;

(2)(O)      willingnessto share proportionally the workload within the court or district, or regularlyaccepting assignments;

(2)(P)       issuanceof opinions and orders without unnecessary delay; and

(2)(Q)      ability and willingness to use the court?s case managementsystems in all cases.

(3)       Standardsof performance.

(3)(A)       Surveyof attorneys.

(3)(A)(i)       TheCouncil shall measure satisfactory performance by a sample survey of theattorneys appearing before the active senior judge or court commissioner duringthe period for which the active senior judge or court commissioner is beingevaluated. The Council shall measure satisfactory performance based on theresults of the final survey conducted during a court commissioner?s term ofoffice, subject to the discretion of a court commissioner serving anabbreviated initial term not to participate in a second survey under Section(3)(A)(vi) of this rule.

(3)(A)(ii)      Surveyscoring. The survey shall be scored as follows.

(3)(A)(ii)(a)       Each question of the attorney survey will havesix possible 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 thetotal number of favorable responses by the total number of all responses,excluding the "No Personal Knowledge" responses. A satisfactory scorefor a question is achieved when the ratio of favorable responses is 70% orgreater.

(3)(A)(ii)(c)       A court commissioner?s performance issatisfactory if: at least 75% of the questions have a satisfactory score; and thefavorable responses when divided by the total number of all responses, excluding"No Personal 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)     Surveyrespondents. The Administrative Office of the Courts shall identify aspotential respondents all lawyers who have appeared before the courtcommissioner during the period for which the commissioner is being evaluated.

(3)(A)(iv)    Exclusion from survey respondents.

(3)(A)(iv)(a)       Alawyer who has been appointed as a judge or court commissioner shall not be arespondent in the survey. A lawyer who is suspended or disbarred or who hasresigned under discipline shall not be a respondent in the survey.

(3)(A)(iv)(b)       Withthe approval of the Management Committee, a court commissioner may exclude anattorney from the list of respondents if the court commissioner believes theattorney will not respond objectively to the survey.

(3)(A)(v)      Numberof survey respondents. The Surveyor shall identify 180 respondents or allattorneys appearing before the court commissioner, whichever is less. Allattorneys who have appeared before the active senior judge shall be sent asurvey questionnaire as soon as possible after the hearing.

(3)(A)(vi)     Administrationof the 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)    Surveyreport. The Surveyor shall provide to the subject of the survey, the subject?s presiding judge, and the Judicial Council thenumber and percentage of respondents for each of the possible responses on eachsurvey question and all comments, retyped and edited as necessary to redact therespondent?s identity.

(3)(B)       Non-attorneysurveys.

(3)(B)(i)       Surveysof presiding judges and court staff regarding non-appellate senior judges.The Council shall measure performance of active senior judges by a survey ofall presiding judges and trial court executives, or in the justice courts, allpresiding justice court judges and the justice court administrator, ofdistricts in which the senior judge has been assigned. The presiding judge andtrial court executive will gather information for the survey from anonymousquestionnaires completed by court staff on the calendars to which the seniorjudge is assigned and by jurors on jury trials to which the senior judge isassigned. The Administrative Office of the Courts shall distribute survey formswith instructions to return completed surveys to the Surveyor. The surveyquestions will be based on the non-legal ability evaluation criteria inparagraph (2).The Surveyor shall provide to the subject of the survey, the subject?s presiding judge, and the Judicial Council theresponses on each survey question. The Judicial Council shall determine whetherthe qualitative assessment of the senior judge indicates satisfactoryperformance.

(3)(B)(ii)      Surveysof Court of Appeals presiding judge and clerk of court. The Council shallmeasure performance of active appellate senior judges by a survey of thepresiding judge and clerk of court of the Court of Appeals. The presiding judgeand clerk of court will gather information for the survey from anonymousquestionnaires completed by the other judges on each panel to which theappellate senior judge is assigned and by the appellate law clerks with whomthe appellate senior judge works. The Administrative Office of the Courts shalldistribute the survey forms with instructions to return completed surveys tothe Surveyor. 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, and the Judicial Council theresponses on each survey question. The Judicial Council shall determine whetherthe qualitative assessment of the senior judge indicates satisfactoryperformance.

(3)(C)       Caseunder advisement standard. A case is considered to be under advisementwhen the entire case or any issue in the case has been submitted to the seniorjudge or court commissioner for final determination. The Council shall measuresatisfactory performance by the self-declaration of the senior judge or courtcommissioner or by reviewing the records of the court.

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

(3)(C)(i)(a)        no more than three cases per calendar year underadvisement more than two months after submission; and

(3)(C)(i)(b)        no case under advisementmore than 180 days after submission.

(3)(C)(ii)      Asenior judge in the court of appeals demonstrates satisfactory performance by:

(3)(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

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

(3)(D)       Compliancewith education standards. Satisfactory performance is established if thesenior judge or court commissioner annually complies with the judicialeducation standards of this Code, subject to the availability of in-stateeducation programs. The Council shall measure satisfactory performance by theself-declaration of the senior judge or court commissioner or by reviewing therecords of the state court administrator.

(3)(E)       Substantialcompliance with Code of Judicial Conduct. Satisfactory performance isestablished if 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 review of formal and informal sanctions lead the Council toconclude the court commissioner is in substantial compliance with the Code ofJudicial Conduct. Under Rule 11-201 and Rule 11-203, any sanction of a seniorjudge disqualifies the senior judge from reappointment.

(3)(F)       Physicaland mental competence. Satisfactory performance is established if thesenior judge or court commissioner demonstrates physical and mental competenceto serve in office and if the Council finds the responsive information to becomplete and correct. The Council may request a statement by an examiningphysician.

(3)(G)      Performanceand corrective action plans for court commissioners.

(3)(G)(i)       Thepresiding judge of the district a court commissioner serves shall prepare aperformance plan for a new court commissioner within 30 days of the courtcommissioner?s appointment. If a court commissioner serves multiple districtsor court levels, the presiding judge of each district and court level shallprepare a performance plan. The performance plan shall communicate theexpectations set forth in paragraph (2) of this rule.

(3)(G)(ii)      Ifa presiding judge issues an overall ?Needs Improvement? rating on a courtcommissioner?s annual performance evaluation as provided in paragraph (1), thatpresiding judge shall prepare a corrective action plan setting forth specificways in which the court commissioner can improve in deficient areas.???

(4)       JudicialCouncil certification process.

(4)(A)       JulyCouncil meeting. At its meeting in July, 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:

(4)(A)(i)       surveyscores;

(4)(A)(ii)      judicialeducation records;

(4)(A)(iii)     self-declarationforms;

(4)(A)(iv)     recordsof formal and informal sanctions;

(4)(A)(v)      performanceevaluations, if the commissioner or senior judge received an overall rating ofNeeds Improvement; and

(4)(A)(vi)     any information requested by the Council.

(4)(B)       Recordsdelivery. Prior to the meeting the Administrative Office of the Courtsshall deliver the records to the Council and to the senior judges and courtcommissioners being evaluated.

(4)(C)       JulyCouncil meeting closed session. In a session closed in compliance withRule 2-103, the Council shall consider the evaluation information and make apreliminary finding of whether a senior judge or court commissioner has met theperformance standards.

(4)(D)       Certificationpresumptions. 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.

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

(4)(E)(i)       reliableinformation showing non-compliance with a performance standard; or

(4)(E)(ii)      formal or informal sanctions of sufficient gravity or numberor both to demonstrate lack of substantial compliance with the Code of JudicialConduct.

(4)(F)       AugustCouncil meeting. At the request of the Council the senior judge or courtcommissioner challenging a non-certification decision shall meet with theCouncil in August. At the request of the Council the presiding judge shallreport to the Council any meetings held with the senior judge or courtcommissioner, the steps toward self-improvement identified as a result of thosemeetings, and the efforts to complete those steps. Not later than 5 days afterthe July meeting, the Administrative Office of the Courts shall deliver to thesenior judge or court commissioner being evaluated notice of the Council?saction and any records not already delivered to the senior judge or courtcommissioner. The notice shall contain an adequate description of the reasonsthe Council has withheld its decision and the date by which the senior judge orcourt commissioner is to deliver written materials. The Administrative Officeof the Courts shall deliver copies of all materials to the Council and to thesenior judge or court commissioner prior to the August meeting.

(4)(G)      AugustCouncil meeting closed session. At its August meeting in a session closedin accordance with Rule 2-103, the Council shall provide to the senior judge orcourt commissioner adequate time to present evidence and arguments in favor ofcertification. Any member of the Council may present evidence and arguments ofwhich the senior judge or court commissioner has had notice opposed tocertification. The burden is on the person arguing against the presumedcertification. The Council may determine the order of presentation.

(4)(H)       Finalcertification decision. At its August meeting in open session, the Councilshall approve its final findings and certification regarding all senior judgesand court commissioners whose terms of office expire that year.

(4)(I)        Communication of certification decision.The Judicial Council shall communicate its certification decision to the seniorjudge or court commissioner. The Judicial Council shall communicate itscertification decision for senior judges to the Supreme Court and for courtcommissioners to the presiding judge of the district the commissioner serves.

Effective May 1, 2020