Judicial Performance Evaluation Commission, Administration

Rule R597-3

Judicial Performance Evaluations

Notice of Proposed Rule

(Amendment)

DAR File No.: 33961
Filed: 08/17/2010 12:02:28 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The rule is being changed to incorporate what the Commission has learned from the administration of pilot evaluation surveys and a pilot courtroom observation program.

Summary of the rule or change:

The rule explains in detail the sampling methodology for attorney survey respondents; articulates a new procedure for surveying jurors; refines the definition of litigant respondents, eliminates provisions concerning witnesses, who have been statutorily eliminated as a survey respondent group; and articulates standards to govern a courtroom observation program.

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

Because the rule only refines and articulates elements of a program that is already established by statute, there are no anticipated costs or savings to the state budget. While witnesses have been eliminated as a survey respondent group, there is no cost savings because the rule previously established an additional respondent group. The cost of the witness survey will pay for the additional group, resulting in no change to the budget.

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 other 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

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2010

This rule may become effective on:

10/22/2010

Authorized by:

V. Lowry Snow, Chair

R597. Judicial Performance Evaluation Commission, Administration.

R597-3. Judicial Performance Evaluations.

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.

(d) The commission may select retention survey questions from among the midterm survey questions.

(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.

(iii) Sampling. 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.]eligible to receive an online juror survey.

(ii) Distribution of surveys. Prior to the jury being dismissed, the bailiff or clerk in charge of the jury shall [distribute surveys to the]collect email addresses from all jurors. If email addresses are not available, street addresses shall be collected. The bailiff or clerk shall [collect completed surveys, seal them in an envelope, and mail them to the surveyor.]transmit all such addresses to the surveyor within 24 hours of collection. The surveyor shall administer the survey online and deliver survey results electronically to each judge. Paper surveys may be sent to those jurors who do not have access to email.

(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 also includes 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, but are not limited to[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; and

(B) any of the following if involved directly or indirectly in litigation before the judge:

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

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

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

([E]IV) an executor, administrator, guardian, or like person representing a real party in interest who has appeared before the judge.

[()](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.

 

R597-3-3. Courtroom Observation.

(1) General Provisions.

(a) Courtroom observations shall be conducted according to the evaluation cycles described in R597-3-1(1) and (2), supra.

(b) The commission shall provide notice to each judge at the beginning of the survey cycle of the courtroom observation process and of the instrument to be used by the observers.

(2) Courtroom Observers.

(a) Selection of Observers

(i) Courtroom observers shall be volunteers, recruited by the commission through public outreach and advertising.

(ii) Courtroom observers shall be selected by the commission staff, based on written applications and an interview process.

(b) Selection Criteria. Observers with a broad and varied range of life experiences shall be sought. The following persons shall be excluded from eligibility as courtroom observers:

(i) persons with a professional involvement with the state court system, the justice courts, or the judge;

(ii) persons with a fiduciary relationship with the judge;

(iii) persons within the third degree of relationship with a state or justice court judge (grandparents, parents or parents-in-law, aunts or uncles, children, nieces and nephews and their spouses);

(iv) persons currently involved in litigation in state or justice courts;

(v) convicted felons;

(vi) persons whose background or experience suggests they may have a bias that would prevent them from objectively serving in the program.

(c) Terms and Conditions of Service

(i) Courtroom observers shall serve at the will of the commission staff.

(ii) Courtroom observers shall commit to one one-year term of service.

(iii) Courtroom observers may serve up to three one-year terms, subject to annual renewal at the discretion of the commission.

(iv) Courtroom observers shall not disclose the content of their courtroom evaluations in any form or to any person except as designated by the commission.

(d) Training of Observers

(i) Courtroom observers must satisfactorily complete a training program developed by the commission before engaging in courtroom observation.

(ii) Elements of the training program shall include:

(A) Orientation and overview of the commission process and the courtroom observation program;

(B) Classroom training addressing each level of court;

(C) In-court group observations, with subsequent classroom discussions, for each level of court;

(D) Training on proper use of observation instrument;

(E) Training on confidentiality and non-disclosure issues;

(F) Such other periodic trainings as are necessary for effective observations.

(3) Courtroom Observation Program.

(a) Courtroom Requirements

(i) During each midterm and retention evaluation cycle, a minimum of four different observers shall observe each judge subject to that evaluation cycle.

(ii) Each observer shall observe each judge in person while the judge is in the courtroom and for a minimum of two hours while court is in session. The observations may be completed in one sitting or over several courtroom visits.

(iii) If a judge sits in more than one geographic location at the judge's appointed level or a justice court judge serves in more than one jurisdiction, the judge may be observed in any location or combination of locations in which the judge holds court.

(iv) When the observer completes the observation of a judge, the observer shall complete the observation instrument, which will be electronically transferred to the commission or the third party contractor for processing.

(b) Travel and Reimbursement

(i) All travel must be preapproved by the executive director.

(ii) All per diem and lodging will be reimbursed, when appropriate, in accordance with Utah state travel rules and regulations.

(iii) Travel reimbursement forms shall be submitted on a monthly basis or whenever the observer has accumulated a minimum of 200 miles of travel.

(iv) Overnight lodging

(A) Overnight lodging is reimbursable when the courtroom is located over 100 miles from home base and court is scheduled to begin before 9:30 a.m., with any exceptions preapproved by commission staff.

(B) Multiple overnight lodging is reimbursable where the commission staff determines it is cost-effective to observe several courtrooms in a single trip.

(v) Each courtroom observer must provide a social security number or tax identification number to the commission in order to process state reimbursement.

(4) Principles and Standards used to evaluate the behavior observed.

(a) Courtroom observers shall respond to questions concerning a judge's:

(i) Neutrality, including:

(A) displaying fairness and impartiality toward all parties;

(B) acting as a fair and principled decision maker who applies rules consistently across people and over cases;

(C) explaining transparently and openly how rules are applied and how decisions are reached.

(ii) Respect, including:

(A) demonstrating courtesy toward attorneys, court staff, and others in the court;

(B) treating all people with dignity;

(C) demonstrating appropriate consideration for people's rights;

(D) helping interested parties understand decisions and what the parties must do as a result;

(E) maintaining decorum in the courtroom.

(iii) Trustworthiness, including:

(A) demonstrating interest in the needs, problems, and concerns of court participants;

(B) listening carefully and impartially;

(C) avoiding impropriety and the appearance of impropriety;

(D) demonstrating adequate preparation to hear scheduled cases;

(E) acting in the interests of the parties, not out of personal prejudices;

(F) managing the workload, including the practical impact on the parties and the effect of delay.

(iv) Voice, including:

(A) giving parties the opportunity, where appropriate, to tell their story or voice their perspective and demonstrating that their story or perspective has been heard;

(B) behaving in a manner that demonstrates full consideration of the case as presented through witnesses, arguments, pleadings, and other documents.

(C) attending, where appropriate, to the participants' comprehension of the proceedings.

(b) Courtroom observers may be asked additional questions to help the commission assess the overall performance of the judge.

 

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

Date of Enactment or Last Substantive Amendment: [April 15], 2010

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