Judicial Performance Evaluation Commission, Administration

Section R597-3-1

Evaluation Cycles

Notice of 120-Day (Emergency) Rule

DAR File No.: 33578
Filed: 04/27/2010 12:20:59 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Commission is changing the number of attorney survey respondents in the hopes of achieving a more statistically significant response level. The change also limits the number of surveys that each attorney may receive.

Summary of the rule or change:

Rather than surveying a standard 180 attorneys per judge, the Commission will survey the number of attorneys most likely to produce a response level yielding reliability at a 95% confidence level with a margin of error of +/- 5% or, if there are not enough attorneys, all attorneys who have appeared before the judge during the evaluation cycle. The Commission will also not ask any attorney to complete more than five surveys.

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

The current rule, which has the force of law, requires the Commission to survey 180 attorneys per judge. Without these changes, The Commission would violate that provision. The emergency rule will allow more accurate results from the attorney survey.

State statutory or constitutional authorization for this rule:

• Sections 78A-12-101 through 78A-12-206

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget because the survey is being administered electronically and, therefore, changing the number of survey respondents for each judge will have no financial impact.

local governments:

Because the Commission has no authority with respect to local government, there is no anticipated cost or savings to local government.

small businesses:

Because the Commission has no authority with respect to small businesses, there is no anticipated cost or savings to small businesses.

persons other than small businesses, businesses, or local governmental entities:

Because the Commission has no authority with respect to persons other than small businesses, businesses, or local government entities, there is no anticipated cost or savings to these entities.

Compliance costs for affected persons:

The Commission assumes all compliance costs. Any affected persons do not assume compliance costs of the statute.

Comments by the department head on the fiscal impact the rule may have on businesses:

Because the Commission does not regulate business, there is no fiscal impact on business.

Joanne C. Slotnik, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Judicial Performance Evaluation Commission
Administration
420 N STATE ST
SENATE BUILDING B-330
SALT LAKE CITY, UT 84114

Direct questions regarding this rule to:

• Joanne Slotnik at the above address, by phone at 801-538-1652, by FAX at 801-538-1024, or by Internet E-mail at jslotnik@utah.gov

This rule is effective on:

04/27/2010

Authorized by:

V. Lowry Snow, Chair

R597. Judicial Performance Evaluation Commission, Administration.

R597-3. Judicial Performance Evaluations.

R597-3-1. Evaluation Cycles.

(1) For judges not serving on the supreme court:

(a) The mid-term evaluation cycle. The mid-term evaluation cycle begins upon the appointment of the judge or on the first Monday in January following the retention election of the judge and ends 2 1/2 years later, on June 30th of the third year preceding the year of the judge's next retention election.

(b) The retention evaluation cycle. The retention evaluation cycle begins the day after the mid-term evaluation cycle is finished and ends two years later, on June 30th of the year preceding the year of the judge's next retention election.

(2) For justices serving on the supreme court:

(a) The initial evaluation cycle. The initial evaluation cycle begins upon the appointment of the justice or on the first Monday in January following the retention election of the justice and ends 2 1/2 years later, on June 30th of the seventh year preceding the year of the justice's next retention election.

(b) The mid-term evaluation cycle. The mid-term evaluation cycle begins the day after the initial evaluation cycle is finished and ends four years later, on June 30th of the third year preceding the year of the justice's next retention election.

(c) The retention evaluation cycle. The retention evaluation cycle begins the day after the mid-term evaluation cycle is finished and ends two years later, on June 30th of the year preceding the year of the justice's next retention election.

(3) Transition Evaluation Cycles

(a) For judges standing for retention election in 2012:

(i) The mid-term evaluation cycle for attorney surveys shall begin on January 1, 2008 and end on December 31, 2009.

(ii) The mid-term evaluation cycle for all other survey categories shall begin in 2009 and end on January 31, 2010.

(iii) The retention evaluation cycle for all surveys shall begin no later than July 1, 2010, and end on June 30, 2011.

(b) For judges not on the supreme court standing for retention election in 2014:

(i) The mid-term evaluation cycle for surveys of attorneys and jurors shall begin in 2009 and finish on June 30, 2011.

(ii) The mid-term evaluation cycle for all pilot program categories shall begin no later than July 1, 2010, and end on June 30, 2011.

(iii) The retention evaluation cycle will be as described in R597-3-1(1)(b),

supra.

(c) For supreme court justices standing for retention election in 2014:

(i) The mid-term evaluation cycle for surveys of attorneys shall begin in 2009 and end on June 30, 2011.

(ii) The mid-term evaluation cycle for relevant pilot programs categories shall begin no later than July 1, 2010, and end on June 30, 2011.

(iii) The retention evaluation cycle shall be as described in R597-3-1(2)(b)-(c).

(d) For supreme court justices standing for retention election in 2016:

(i) The initial evaluation cycle shall be combined with the mid-term evaluation, beginning in 2009 and ending on June 30, 2013.

(ii) The combined initial/mid-term evaluation cycle for surveys of attorneys shall begin in 2009 and end on June 30, 2013.

(iii) The combined initial/mid-term evaluation cycle for relevant pilot programs categories shall begin no later than July 1, 2010.

(iv) The retention evaluation cycle shall be as described in R597-3-1(2)(c).

 

R597-3-2. Survey.

(1) General provisions.

(a) All surveys shall be conducted according to the evaluation cycles described in R597-3-1, supra.

(b) The commission shall distribute the survey questionnaires upon which the judge shall be evaluated to each judge at the beginning of the survey cycle.

(c) In 2010, the commission shall finalize survey questionnaires and implementation procedures for each respondent classification.

(2) Respondent Classifications

(a) Attorneys

(i) Identification of survey respondents. Within 10 business days of the end of the evaluation cycle, the clerk for the judge or the Administrative Office of the Courts shall identify as potential respondents all attorneys who have appeared before the judge who is being evaluated at a minimum of one hearing or trial during the evaluation cycle.

(ii) Number of survey respondents. For each judge who is the subject of a survey, the surveyor shall identify [180 potential respondents or all attorneys appearing before the judge, whichever is less]the number of attorneys most likely to produce a response level yielding reliability at a 95% confidence level with a margin of error of +/- 5%; or, in the event that an insufficient number of attorneys have appeared before the evaluated judge to achieve that confidence level, all attorneys who have appeared before the judge during the evaluation cycle, excepting attorneys who have already been asked to evaluate five judges.

(iii) Sampling. No attorney will be asked to complete more than five surveys in a single evaluation cycle. The surveyor shall [make a random selection of respondents and shall otherwise ]design the survey to comply with generally-accepted principles of surveying.

(iv) Distribution of surveys. Surveys shall be distributed by the third-party contractor engaged by the commission to conduct the survey.

(b) Jurors

(i) Identification and number of survey respondents. All jurors who participate in deliberation shall be given a juror questionnaire.

(ii) Distribution of surveys. Prior to the jury being dismissed, the bailiff or clerk in charge of the jury shall distribute surveys to the jurors. The bailiff or clerk shall collect completed surveys, seal them in an envelope, and mail them to the surveyor. The surveyor shall deliver survey results electronically to each judge.

(c) Court Staff

(i) Definition of court staff who have worked with the judge. Court staff who have worked with the judge refers to employees of the judiciary who have regular contact with the judge as the judge performs judicial duties and those who are not employed by the judiciary but who have ongoing administrative duties in the courtroom.

(ii) Identification of survey respondents. Court staff who have worked with the judge shall include, where applicable:

(A) judicial assistants;

(B) case managers;

(C) clerks of court;

(D) trial court executives;

(E) interpreters;

(F) bailiffs;

(G) law clerks;

(H) juvenile probation and intake officers;

(I) other courthouse staff, as appropriate;

(J) Administrative Office of the Courts staff.

(ii) Pilot program. The commission shall run a pilot program to evaluate the methodology, content, and administrative feasibility of surveying court staff.

(d) Litigants

(i) Identification of survey respondents. The following categories are litigants for purposes of the judicial performance evaluation survey:

(A) any named party to an action;

(B) any person 14 years of age or older;

(C) the parent, foster parent, guardian, or legal custodian of any minor;

(D) the designated representative of a corporate or like entity;

(E) an executor, administrator, guardian, or like person representing a real party in interest.

([)(]ii) The representative of the prosecuting entity in a criminal case shall be surveyed as an attorney. Prosecutor responses to the judicial temperament part of the survey shall be reported in both the attorney and litigant portions of the judicial evaluation report.

(ii i) Pilot Program. The commission shall run a pilot program to evaluate the methodology, content, and administrative feasibility of surveying litigants.

(e) Witnesses

(i) Identification of survey respondents.

(A) District and Justice Court. A witness is anyone not surveyed as a litigant who is sworn and testifies in court before a judge who is being evaluated. Any witness who is 14 years of age or older is qualified as a witness survey respondent.

(B) Juvenile Court. A witness is anyone who does not fall within another survey respondent group and who proffers or testifies in court before a judge who is being evaluated.

(ii) Pilot Program. The commission shall run a pilot program to evaluate the methodology, content, and administrative feasibility of surveying witnesses.

(f) Juvenile Court Professionals

(i) Definition of juvenile court professional. A juvenile court professional is someone whose professional duties place that individual in court on a regular and continuing basis to provide substantive input to the court.

(ii) Identification of survey respondents. Juvenile court professionals shall include, where applicable:

(A) Division of Child and Family Services ("DCFS") child protection services workers;

(B) Division of Child and Family Services ("DCFS") case workers;

(C) Juvenile Justice Services ("JJS") Observation [&]and Assessment Staff;

(D) Juvenile Justice Services ("JJS") case managers;

(E) Juvenile Justice Services ("JJS") secure care staff;

(F) Others who provide substantive professional services on a regular basis to the juvenile court.

(iii) The commission shall run a pilot program to evaluate the methodology, content, and administrative feasibility of surveying juvenile court professionals.

(3) Anonymity and Confidentiality

(a) Definitions

(i) Anonymous.

(A) "Anonymous" means that the identity of the individual who authors any survey response, including comments, will be protected from disclosure.

(B) The independent contractor conducting the surveys shall provide to the commission all written comments from the surveys, redacted to remove any information that identifies the person commenting. The contractor shall also redact any information that discloses the identity of any crime victims referenced in a written comment.

(C) The submission of a survey form containing an anonymous narrative comment does not preclude any survey respondent from submitting a public comment in writing pursuant to the Judicial Performance Evaluation Commission Act.

(ii) Confidentiality: Confidentiality means information obtained from a survey respondent that the respondent may reasonably expect will not be disclosed other than as indicated in the survey instrument.

(iii) The raw form of survey results consists of all quantitative survey data that contributes to the minimum score on the judicial performance survey.

(iv) The summary form of survey results consists of quantitative survey data in aggregated form.

 

KEY: judicial performance evaluations, judges, evaluation cycles, surveys

Date of Enactment or Last Substantive Amendment: April 27, 2010

Authorizing, and Implemented or Interpreted Law: 78A-12