You CAN Take It With You: Judicial Candidate Evaluations into Illinois Voting Booths

45 of the candidates running in Tuesday’s Cook County Illinois primary were deemed “not recommended” or “not qualified” by at least one reviewing organization, and the SunTimes wants to know how voters are supposed to discern the best candidates when they’re faced with numerous options in the booth.

Here’s one way: Take the evaluations with you.

Using www.voteforjudges.org, a Chicago Appleseed project since 2006, you’ll find a collection of Cook County judicial candidate evaluation of candidates.

Chicago Council of Lawyers Evaluation -- Illinois Primary Election 2012, Supreme Court

And the best part is: you can take these evaluations with you into the ballot box!

The judges you elect on Tuesday may decide cases involving business licensing, divorce, civil rights, crimes, contracts and more. All of our lives are affected every day by their ability to manage a courtroom, apply the law, and address parties with thoughtfulness and integrity. Help strengthen the judiciary and take the evaluations with you. 

Judges Should Be Evaluated for Performance, Not Politics

This post originally appeared at the Huffington Post.

When a judge is weighing the merits of a case, the popularity of her decision should be the last thing on her mind. And when casting a ballot for a judge, performance, not political issues, should be a voter’s first concern. Yet, outcome-based judicial evaluations, or issue-specific “judicial report cards,” such as those published by various Chambers of Commerce and numerous other interest groups, threaten elected judges with their jobs for making unpopular decisions. In doing so, they undermine judicial independence, one of the essential features of American government.

The inspiration and framework of our government demands and depends upon judges ruling independently and dispassionately. In the Declaration of Independence, Thomas Jefferson charged King George III with violating judicial independence by making judges’ salaries “dependent on his Will alone.” Today, we see so-called “activist judges” threatened, or even removed from the bench, for deciding hard cases involving hot button issues such as capital punishment, abortion, gay marriage, or health care. The divisive nature of these cases guarantees that the presiding judge will be viewed as an “activist” by one group or another. These are cases where judicial independence matters most, and yet they are the issues most often “graded” by interest groups.

Most states elect some or all of their judges. Since judges are elected just like other politicians, aren’t they also accountable to the electorate? Not quite. Judges are accountable, but not like other elected officials. Legislative and executive branch elected officials must advocate for their constituents’ interests—or risk being voted out of office. Judges, on the other hand, are expected to remain independent from specific voter interests. Instead, they are held accountable to the constitution, statutes, common law, precedent set by higher courts, ethics rules, and judicial performance standards. Judges should come under fire if and only if they violate these standards.

To be sure, judges must be evaluated. The American Bar Association, along with several other organizations, advises that independent commissions evaluate judges on the basis of several key factors:  legal knowledge, fairness, communication skills, professionalism, and administrative abilities. In other words: Do they know the law? Do they apply the law to the facts of the case without bias? Do they explain that application clearly? Do they treat all persons with dignity and respect? Do they manage to do all of this while administering courtroom logistics? If a judge fails in any of these respects, a voter should seriously consider replacing her.

Chicago Appleseed Fund for Justice, along with the Chicago Council of Lawyers, recently adopted this model in forming the Judicial Performance Commission of Cook County—a committee of lawyers and laypeople who evaluate sitting judges. The results are published for voters, and also provided to administrative judges who assign judges to specific courts. For several decades, Chicago Appleseed and the Chicago Council of Lawyers have collected and disseminated judicial evaluations of Cook County, IL judges—now available at http://voteforjudges.org/. These evaluations are an essential way to improve the quality of our elected judiciary without compromising judicial independence.

But what if you strongly disagree with rulings made by otherwise competent judges? Voters have several options other than impeachment, which is properly reserved for “high crimes and misdemeanors,” and not unpopular decisions. A constitutional amendment, change in the law, or appeal to a higher court are all valid and effective options for influencing the outcome of future decisions. Directly removing judges is a shortcut that undercuts judicial independence.

Judicial independence, in the words of former Chief Justice of the Supreme Court William Rehnquist, “is one of the crown jewels of our government.” Without this jewel, we would lack numerous civil rights which, while authorized by the constitution, were not popular with a majority of voters. Rulings bound by interest groups and not law would also lead to extraordinary costs of doing business due to unpredictable interpretations of consumer, contracts, real estate, and environmental law.

Groups with policy agendas should take their gradebooks to the legislature, not the judiciary. Judges are empowered to interpret the law, and should do so without fear of personal or professional retribution. If advocacy organizations do not like the outcome of a case, they should file an appeal or lobby for a new law—and not upend the checks and balances of government.

Who Ruled that Rahm Couldn’t Run?

Whenever big political decisions come before little known judges, all eyes are on the bench. Since 1970, the Chicago Council for Lawyers (Chicago Appleseed’s partner organization), has been reviewing the performance of judges serving on Cook County Circuit Courts, as well as 1st District Candidates for the Illinois Appellate Court and  Illinois Supreme Court. The purpose is offer an unbiased opinion to Illinois voters as to a the qualification of those judges seeking retention on the court. Here is the complete 2009 Directory of State Judges (pdf) , which includes all Chicago Council evaluations. The directory, along with additional materials, can also be found at the Chicago Council of Lawyers’ website.

On Monday, January 25, an Illinois Appellate Court, comprised of Judges Bertina Lampkin, Shelvin Hall, and Thomas Hoffman, ruled that Rahm Emmanuel did not meet the residency requirements of a Chicago mayoral candidate, and thus was ineligible to run in the upcoming election. Who are these judges? Various publications have addressed that question. Additional answers may be found in the following excerpts from each judge’s Chicago Council of Lawyers evaluation.

Bertina Lampkin

Hon. Bertina Lampkin was elected to the Circuit Court in 1992. Judges Lampkin is considered to have good legal ability and is reported to be an exceptionally hard-working jurist.  Prior to joining the Appellate court, her written materials included approximately 100 opinions from cases she heard at the courthouse at 26^th Street and California, including findings on post-conviction petitions and motions to quash and suppress. Additionally, she has been on the Supreme Court criminal pattern jury instructions committee for fifteen years, the last five as chair of the committee. She has taught in the area of death penalty litigation, as well as the new judge classes and she has written practice guides for new judges.  Judge Lampkin has demonstrated that she meets the higher standards that the Council uses in evaluating candidates for the Appellate Court.  The Council finds Judge Lampkin Qualified for the Appellate Court.

Shelvin Hall

Judge Shelvin Hall was appointed to the Appellate Court in 1999, and presently sits in the First District, First Division. She was appointed as a Circuit Court Judge in 1991 and served in the Domestic Relations and Law Divisions of the Circuit Court.  Prior to her election to the bench, Justice Hall was an attorney and General Counsel with the Illinois Department of Human Rights.

Judge Shelvin Hall is considered to be a diligent, hard-working Appellate Court judge with a very good temperament.  She is exceptionally active in community affairs.  Most lawyers say that she is active in oral argument and that her written decisions are well-reasoned.  There are some lawyers who question the clarity and consistency of her rulings.  On balance the Council finds her Qualified for the Appellate Court.

Thomas E. Hoffman

Thomas E. Hoffman was appointed by the Illinois Supreme Court in January 1993 to sit on the Illinois Appellate Court. He first took the bench as an Associate Judge in 1984 and was assigned to the Law Division in 1985, where he presided until becoming an Appellate Court Justice.

Judge Hoffman distinguished himself as a judge and administrator in the Circuit Court of Cook County. Through his administrative abilities, he greatly reduced the case backlog in the Law Division. He was instrumental in implementing an experimental program in the Law Division in which selected judges are given individual calendars. As a Circuit Judge, he was considered to be among the hardest working judges and his legal ability was considered to be excellent.

As an Appellate Court Justice, he is considered to be fair, intelligent, and hard working. He is said to be always prepared. The Council finds him Well Qualified for the Appellate Court.

The Importance of Citizen Oversight of the Judiciary

The Iowa Independent reports that Doug Gross,—Iowan lawyer has served as a lobbyist and as a former advisor to Iowa Governor-elect Terry Branstad—has criticized the involvement of the Iowa Bar Association in judicial elections:

“They’re elitists,” Gross said of the Bar Association in an interview with WHO-AM’s Jan Mickelson. “They’re intellectual snobs and elitists, and they don’t understand that what makes our government an intrinsically genius form of government is that it rebalances itself with the will of the people.”

The Iowa Bar Association, which is a professional group of lawyers, supported the retention of the three Supreme Court justices who were removed from the bench by voters due to the court’s unanimous 2009 ruling that legalized same-sex marriage. The president of the American Bar Association recently penned a guest column for The Des Moines Register calling the vote to oust the judges a form of intimidation against the judicial branch. The effort to oust the judges was led by a handful of out-of-state anti-gay organizations that spent nearly $1 million on the campaign.

Chicago Appleseed and the Chicago Council of Lawyers have long been involved with VoteforJudges.org, which aggregates state and local bar evaluations of judges sitting for election or for retention in Cook County. The Chicago Council provides its own recommendations concerning the qualifications of the judicial candidates, and recently Chicago Appleseed has provided administrative support and independent research to the Judicial Performance Commission of Cook County in its evaluations of judicial retention candidates. It has been part of our mission to provide a public service by surveying the legal community to provide comprehensive information about the qualification of judges and judicial candidates in Cook County.

It is critical to the integrity of the evaluations, however, that they be based on judicial performance rather than their decision outcomes. Judges should be “out of touch” to the extent that they are not legislators beholden to the will of the people when making judicial rulings, and evaluations of judicial performance should reflect this.

Nonetheless, an elected judiciary serves at the pleasure of the electorate, which creates tension in any evaluation process. The performance commission model, in use in many states forms the basis for the Judicial Performance Commission of Cook County. The performance commission model aims toward self-improvement in the judiciary and supports judicial independence by focusing on performance metrics in evaluating sitting judges. The performance commission model is often viewed as superior to the methods in use by most bar associations. Where many bar association evaluations rely heavily on self-reporting from judges and insufficiently neutral surveys of the attorney members of the bar associations, performance commission evaluations strive for greater objectivity in the data collection for their recommendations.

The Judicial Performance Commission of Cook County (the JPC) takes objectivity very seriously in its investigations. The Commissioners are drawn from a variety of institutions in Cook County both in and out of the legal profession. Starting in 2011, we will use volunteers drawn from the community at large—not specifically from the legal community—to begin court-watching for the expected 2012 judicial retention candidates. We will also begin court-watching the 2010 judicial retention candidates who received performance improvement recommendations from the JPC to provide mid-term evaluations.

Independence in the judiciary is vital to the promotion of justice. So is excellence. It is our mission at Chicago Appleseed to promote both.

Next Steps For The Performance Commission

The Judicial Performance Commission has released the results of its evaluation of the judicial retention candidates. Of the 69 judges listed on the retention ballot in the November election, the JPC has found only three not recommended for retention: Judge Dorothy Jones, Judge Jeffrey Lawrence, and Judge Susan McDunn. Although the Commission recommends the remaining 65 judges for retention, the JPC has provided performance improvement commentary for 19 of judicial retention candidates. You can read the full recommendations, including performance improvement commentary, at  voteforjudges.org.

The performance improvement comments distinguishes the JPC from other judicial evaluations because our recommendations are not merely to help voters cast informed votes, but also to help the court address performance issues among its judges. Issues identified in the evaluations include temperament and courtroom management concerns, while proposed remedies include peer mentoring, continuing education, and court-watching. Judicial evaluations can lead to a higher quality judiciary and the JPC is committed to working toward making this happen. Therefore, in addition to creating the concise guide for voters, the JPC wrote recommendations for each judge, including—when appropriate—commentary as to how the judge could improve his or her judicial performance. The Commission will contact both the judge and his or her Presiding Judge and offer to discuss steps that the judge can take to address the concern.

The JPC adopted the “Performance Commission” model which is in use in at least five states so that the impact of the commission could stretch beyond the retention election. In Colorado, where a Performance Commission has been in existence for ten years, over 85% of trial judges and 50% of appellate judges report judicial performance evaluations have been “significantly beneficial” or “somewhat beneficial” to their professional development, according to a study by the Institute for the Advancement of American Legal Systems.  The same study finds that many judges also feel that the Colorado Performance Commission had no negative effects on their judicial independence, but instead increases their judicial independence. The Cook County JPC was founded on this belief that, in addition to aiding voters, Performance Commissions help judges perform better on the bench.

Although the retention election happens November 2, 2010, the work of the JPC will continue. We will be implementing a court-watching program to follow-up our performance improvement commentary. Additionally, we will be reviewing proposals for improving the way judicial vacancies are filled. Finally, Chicago Appleseed and Chicago Council of Lawyers are working together on a recommendation that there be an easily accessible web-based database to assist attorneys and litigants in determining if opposing counsel and litigants have contributed to the campaigns of the judge, which may for the basis for a substitution of judge.

If you are interested in court-watching, or otherwise providing pro bono assistance on these projects, please  contact the project manager.

Judicial Performance Commission Pilot Project

There are 73 Cook County judges up for retention in the November election. Because voters have no real opportunity to independently evaluate such a large slate of candidates, unfortunately, many voters either abstain from the retention vote or make decisions based on familiar ballot cues (e.g. ethnicity or gender) that have little relationship with judicial performance. Our experience with prior voter education campaigns, however, shows that voters will use judicial voter information if it is presented in a user-friendly way by a credible source.

In February, the Judicial Performance Commission Pilot Project for Cook County, with a generous grant from the Joyce Foundation and the assistance of the Chicago Appleseed Fund for Justice, launched an ambitious project intended to revolutionize the judicial retention electoral process in Illinois. The JPC’s Pilot Project has two primary goals: (1) to provide objective, research-based evaluations of judges seeking retention to the public prior to elections and (2) to use those evaluations to create judicial performance improvement place to help the court address problems identified in the process.

The Commission will present the results of the surveys, interviews, and investigations to voters, the judges being evaluated and their supervising judges in order to achieve the goal of improving the performance of Cook County’s judges. Because much of our data is collected anonymously, we believe it represents a candid and frank assessment of judicial performance and offers a solid foundation for individualized plans to improve the performance of our judges.

If the Pilot Project is successful, it will provide a model for future voter education programs and offer a detailed body of information for use in reforming the judicial retention process in Illinois.