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Rule 3-111. Performanceevaluation of active senior judges and court commissioners.

Intent:

To establish a performance evaluation,including the criteria upon which active senior judges and court commissionerswill be evaluated, the standards against which performance will be measured andthe methods for fairly, accurately and reliably measuring performance.

To generate and toprovide to active senior judges and court commissioners information about theirperformance.

To establish the procedures by whichthe Judicial Council will evaluate and certify senior judges and courtcommissioners for reappointment.

Applicability:

This rule shall apply to presidingjudges, the Board of Justice Court Judges and the Judicial Council, and to theactive senior judges and court commissioners of the Court of Appeals, courts ofrecord and courts not of record.

Statement of the Rule:

(1) Performance evaluations.

(1)(A) Court commissioners.

(1)(A)(i) On forms provided by theadministrative office, the presiding judge of a district or court level a courtcommissioner serves shall complete an evaluation of the court commissioner?sperformance by June 1 of each year. If a commissioner serves multiple districtsor court levels, the presiding judge of each district or court level shallcomplete an evaluation.

(1)(A)(ii) The presiding judge shall survey judges and courtpersonnel seeking feedback for the evaluation. During the evaluation period, thepresiding judge shall review at least five of the commissioner?s active cases.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) Active senior judges. An active seniorjudge?s performance shall be evaluated by attorneys as provided in paragraph(3)(A) and by presiding judges and court staff as provided in paragraph (3)(B).

(2) Evaluation and certification criteria. Active senior judges andcourt commissioners shall be evaluated and certified upon the followingcriteria:

(2)(A) demonstration of understanding of the substantive lawand any relevant rules of procedure and evidence;

(2)(B) attentiveness to factual and legal issues before thecourt;

(2)(C) adherence to precedent and ability to clearly explaindepartures 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 andincreased litigation expense;

(2)(E) ability to write clear judicial opinions;

(2)(F) ability to clearly explain the legal basis for judicialopinions;

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

(2)(H) maintenance of decorum in the courtroom;

(2)(I) demonstrationof judicial demeanor and personal attributes that promote public trust andconfidence in the judicial system;

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

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

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

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

(2)(N) management of workload;

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

(2)(P) issuance of opinions and orders without unnecessarydelay; and

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

(3) Standards of performance.

(3)(A) Survey of attorneys.

(3)(A)(i) The Council shallmeasure satisfactory performance by a sample survey of the attorneys appearingbefore the active senior judge or court commissioner during the period forwhich the active senior judge or court commissioner is being evaluated. TheCouncil shall measure satisfactory performance based on the results of thefinal survey conducted during a court commissioner?s term of office, subject tothe discretion of a court commissioner serving an abbreviated initial term notto 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:

(3)(A)(ii)(c)(1) at least75% 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 whetherthe senior 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 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 ofthe Management 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 ofsurvey 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) 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 shall 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.

(3)(B) Non-attorney surveys.

(3)(B)(i) Surveys of presiding judges and court staff regarding non-appellatesenior judges. The Council shall measure performance of active seniorjudges by a survey of all presiding judges and trial court executives, or inthe justice courts, the Justice Court Administrator, of districts in which thesenior judge has been assigned. The presiding judge and trial court executivewill gather information for the survey from anonymous questionnaires completedby court staff on the calendars to which the senior judge is assigned and byjurors on jury trials to which the senior judge is assigned. The AdministrativeOffice of the Courts shall distribute survey forms with instructions to returncompleted surveys to the Surveyor. The survey questions will be based on thenon-legal ability evaluation criteria in paragraph (2).The Surveyor shallprovide to the subject of the survey, the subject?s presiding judge, and the Judicial Council the responses on each surveyquestion. The Judicial Council shall determine whether the qualitativeassessment of the senior judge indicates satisfactory performance.

(3)(B)(ii) Surveys ofCourt 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 anonymous questionnairescompleted by the other judges on each panel to which the appellate senior judgeis assigned and by the appellate law clerks with whom the appellate seniorjudge works. The Administrative Office of the Courts shall distribute the surveyforms with 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, thesubject?s presiding judge, and the Judicial Council the responses on eachsurvey question. The Judicial Council shall determine whether the qualitativeassessment of the senior judge indicates satisfactory performance.

(3)(C) Case under advisement standard. A caseis considered to be under advisement when the entire case or any issue in thecase has been submitted to the senior judge or court commissioner for finaldetermination. The Council shall measure satisfactory performance by the self-declarationof the senior judge or court commissioner or by reviewing the records of thecourt.

(3)(C)(i) A senior judge or courtcommissioner in a trial court demonstrates satisfactory performance by holding:

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

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

(3)(C)(ii) A senior judge in the court of appealsdemonstrates 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 afinal average time to circulation of a principal opinion of no more than 120days after submission.

(3)(D) Compliance with education standards.Satisfactory performance is established if the senior judge or courtcommissioner annually complies with the judicial education standards of thisCode, subject to the availability of in-state education programs. The Councilshall measure satisfactory performance by the self-declaration of the seniorjudge or court commissioner or by reviewing the records of the state courtadministrator.

(3)(E) Substantial compliance with Code ofJudicial Conduct. Satisfactory performance is established if the responseof the senior judge or court commissioner demonstrates substantial compliancewith the Code of Judicial Conduct, if the Council finds the responsiveinformation to be complete and correct and if the Council?s review of formaland informal sanctions lead the Council to conclude the court commissioner isin substantial compliance with the Code of Judicial Conduct. Under Rule 11-201and Rule 11-203, any sanction of a senior judge disqualifies the senior judgefrom 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 action plans forcourt commissioners.

(3)(G)(i) The presiding judge ofthe district a court commissioner serves shall prepare a performance plan for anew court commissioner within 30 days of the court commissioner?s appointment.If a court commissioner serves multiple districts or court levels, the presidingjudge of each district and court level shall prepare a performance plan. Theperformance plan shall communicate 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. At its meeting inJuly, the Council shall begin the process of determining whether the seniorjudges and court commissioners whose terms of office expire that year meet thestandards of performance provided for in this rule. The Administrative Officeof the Courts shall assemble all evaluation information, including:

(4)(A)(isurvey scores;

(4)(A)(ii) judicial educationrecords;

(4)(A)(iii) self-declaration forms;

(4)(A)(iv) records offormal and 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. Prior to the meetingthe Administrative Office of the Courts shall deliver the records to theCouncil and to the senior judges and court commissioners being evaluated.

(4)(C) July Council meeting closed session. Ina session closed in compliance with Rule 2-103, the Council shall consider theevaluation information and make a preliminary finding of whether a senior judgeor court commissioner has met the performance standards.

(4)(D) Certification presumptions. If theCouncil finds the senior judge or court commissioner has met the performancestandards, it is presumed the Council will certify the senior judge or courtcommissioner for reappointment. If the Council finds the senior judge or courtcommissioner did not meet the performance standards, it is presumed the Councilwill not certify the senior judge or court commissioner for reappointment. TheCouncil may certify the senior judge or court commissioner or withhold decisionuntil after meeting with the senior judge or court commissioner.

(4)(E) Overcoming presumptions. A presumptionagainst certification may be overcome by a showing of good cause to thecontrary. A presumption in favor of certification may be overcome by:

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

(4)(E)(ii) formal orinformal sanctions of sufficient gravity or number or both to demonstrate lackof substantial compliance with the Code of Judicial Conduct.

(4)(F) August Council meeting. At the requestof 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 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 August meeting.

(4)(G) August Council meeting closed session. Atits August meeting in a session closed in accordance with Rule 2-103, theCouncil shall provide to the senior judge or court commissioner adequate timeto present evidence and arguments in favor of certification. Any member of theCouncil may present evidence and arguments of which the senior judge or courtcommissioner has had notice opposed to certification. The burden is on theperson arguing against the presumed certification. The Council may determinethe order of presentation.

(4)(H) Final certification decision. At its Augustmeeting in open session, the Council shall approve its final findings andcertification regarding all senior judges and court commissioners whose termsof office expire that year.

(4)(I)Communication of certification decision. The Judicial Council shall communicateits certification decision to the senior judge or court commissioner. TheJudicial Council shall communicate its certification decision for senior judgesto the Supreme Court and for court commissioners to the presiding judge of thedistrict the commissioner serves.

 

Effective November 1,2018