Monday, March 8, 1999

Effort mounted
to improve judicial

The judiciary now
gets only infrequent and
confidential reviews

Secrecy rule keeps
review process under wraps

By Ian Y. Lind


A behind-the-scenes tug of war between the state Judiciary and Hawaii's lawyers could eventually give the public a greater say in evaluating the courtroom skills and behavior of judges.

Judges now face only infrequent and confidential personnel reviews based on comments submitted by a handful of lawyers.

Dissatisfaction with the slow pace and secrecy of this in-house process has prompted the Hawaii State Bar Association to consider alternatives that could include independent ratings of judges, said Randall Roth, association president and a UH law professor.

Roth has asked a Bar committee, chaired by Honolulu attorney Douglas A. Crosier, to come up with recommendations before the end of the year.

The main purposes of the existing evaluation program are defined by the Supreme Court: bullet To improve individual judges' performance.

bullet To provide information to be used in selection and retention decisions.

bullet And to facilitate the effective assignment of judges within the judiciary.

Roth believes evaluations should also strengthen the judicial system and increase public confidence in its operations.

"There are a number of ways the evaluation process might be improved, and it could be complemented by a separate process conducted by the Bar Association," Roth said. "I personally feel strongly that and other aspects of the legal system can and should be opened up to a significant degree, and everyone would benefit from more transparency."

Evaluation remains a sensitive topic for judges, who defend their independence, and for lawyers, who have an interest in weeding out less competent judges but depend on good relations for courtroom success.

"People are scared to comment because judges are their bread and butter," said one prominent attorney who asked not to be identified.

The Judiciary's current evaluation process was set up by Rule 19 of the Hawaii Supreme Court, which went into effect in January 1991. It requires evaluation of Circuit Court, Family Court and District Court judges, but not members of the Supreme Court or Intermediate Court of Appeals.

The process is overseen by the Special Committee on Judicial Performance, commonly known as the Rule 19 committee, made up of judges, lawyers and representatives of the public appointed by the chief justice.

Michael Broderick, administrative director of the courts, acknowledged the concerns of the lawyers' group but defended the program.

"The system is working well in terms of evaluating the judges and providing them substantive feedback," Broderick said. "The problem is increasing the number of judges who are actually evaluated."


Only 17 judges have been evaluated in the eight years since Rule 19 went into effect, with another 17 expected to be completed within the next six months, Broderick said.

"We want the program to work, and are working very hard to move it forward," Broderick said. But he said the process is "very resource intensive" and has had problems due to staff and budget cutbacks in the courts, as well as difficulty refining the methodology.

Samuel Blair, a Kauai attorney and member of the Rule 19 committee since 1997, said the program has been nearly invisible.

"Nobody knew about it. They never publicized it, and even lawyers didn't know about it," Blair said. Even after several changes aimed at reviving the process, "it's a beast that's crawling along very, very slowly," Blair said.

Evaluations are based on responses to questionnaires mailed to attorneys who have appeared several times before each judge. Average ratings disclosed by the Judiciary have been good, but until recently few questionnaires were actually distributed by court staff, and even fewer completed and returned by attorneys, according to three progress reports issued between 1994 and 1998.

Just 148 questionnaires were distributed in a 13-month period between September 1996 and October 1997, although 52 Circuit Court and Family Court judges were up for review, according to a report published last year. The distribution problems continued through 1996 and 1997 despite a series of letters from Chief Justice Ronald Moon urging judges to make evaluations a priority.

Only enough data were eventually collected to finish evaluations of eight judges.

The number of questionnaires distributed falls far below the pace of four states featured in a recent study by the American Judicature Society.

Alaska's evaluation program sent 2,650 surveys to lawyers, along with thousands more to court employees, peace and probation officers, and jurors, according to the study. In Arizona, a total of 38,788 surveys were distributed, including 18,798 to attorneys.

New Jersey, which provided the model for the Rule 19 procedure, evaluates about 50-60 judges each year, according to Rick Young, who administers its evaluation program. David Louie, an attorney and vice chairman of the Rule 19 committee, discounted the perception that judges have tried to slow Hawaii's evaluation process.

"The judges have been fairly forthright and cooperative in this process," Louie said, although the committee has made compromises in order to retain their support.

"If we come up with a procedure and the judges don't like it and feel it's unfair, that's counterproductive," Louie said. "We won't get them buying into the system, and then we would have foot-dragging."

Roth said the Bar Association may be able to make some changes on its own, but might have to seek a change in Supreme Court rules, an amendment to state law or even a change in the state Constitution.

Secrecy rule keeps
review process under wraps

By Ian Y. Lind


The head of the Hawaii State Bar Association, the professional organization representing the state's nearly 4,000 attorneys, believes evaluating judges should be a more open process.

Bar President Randall Roth said that without a reasonable degree of openness, "the public doesn't really have any tangible evidence to suggest that the quality of the judiciary is high."

"Anecdotally, I certainly know of lawyers who feel the quality of the judiciary is not universally high, and there are a few judges who aren't of the same caliber as the vast majority," Roth said.

But evaluations are secret, leaving lawyers, the public and others who deal with the court system guessing about results.

Supreme Court rules require "all information, questionnaires, notes, memoranda, data, and/or reports obtained, used, or prepared in the implementation and administration of the program" to remain confidential. Several lawyers familiar with the evaluation process declined to be quoted for this story, citing fears they might inadvertently violate the broad secrecy rule.

Judiciary officials also refused a Star-Bulletin request to review minutes of the committee that oversees the process, claiming its discussions of alternative evaluation procedures are covered by the secrecy rule.

The question of evaluations and judicial accountability shook the legal community a decade ago, when an earlier evaluation proposal was blocked by then-Chief Justice Herman Lum, said former Bar President Paul Alston.

"It was made pretty clear (by Lum) that the Bar's proposal was not something the Supreme Court was interested in adopting, and it went forward with its own Rule 19 proposal instead," Alston said.

Rule 19 pre-empted the Bar's more aggressive evaluation proposal by reserving "exclusive" jurisdiction to the Judiciary's in-house process.

Honolulu attorney Jeff Portnoy, a former member of the Rule 19 committee, questions the ultimate value of confidential evaluations.

"I still think there is a serious legitimate issue as to the value of those evaluations if they are not made available to the users of the system, the attorneys, the public, whoever," Portnoy said. But Portnoy predicted that any proposals for opening the process will trigger judicial resistance.

"I sat through many meetings in which it became clear that it would be impossible to get the judiciary to agree to a system that would permit public disclosure of those evaluations," Portnoy said.

Roth hopes to convince both attorneys and judges that openness is a win-win proposition.

"I happen to think things are being done reasonably well, better than what the public assumes, so to me transparency offers a win-win outcome in that it will add credibility to the system," Roth said.

"The more you try to keep something secret and try to explain that everybody is better off because of the secrecy, the more people will assume the worst, that it's secret because it can't be defended or is not being done in a way that puts the public first."

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