|Members Present |
Brian Neugebauer, Chair
Judge Zane Anderson
Judge John Greenwood
U.S. Magistrate Judge Karen Klein
Sen. Tim Mathern
Lisa Fair McEvers
Justice Dale Sandstrom
|Members Absent |
Referee Bob Freed
Municipal Judge Scott Griffeth
Judge Richard Grosz
Judge Debbie Kleven
Sen. Steve Tomac
Judge Kathleen Weir and Judge Galen Vaa, Minnesota's Seventh Judicial District
Chair Neugebauer called the meeting to order at 10:00 a.m. and welcomed Judge Kathleen Weir and Judge Galen Vaa, Minnesota's Seventh Judicial District, for a discussion of the judicial improvement program recently instituted in Minnesota.
Judge Weir began the discussion by inquiring whether the impetus for the Committee's study of judicial improvement came from the Supreme Court or the state bar association. Chair Neugebauer explained that the Committee had discussed judicial performance evaluation programs a few years ago and had concluded at that time that establishment of such a program was perhaps premature. He said the Committee had since received two referrals from Chief Justice Gerald VandeWalle: a document resulting from a national conference on judicial selection and a recommendation from the Public Trust and Confidence Implementation, both of which suggested further consideration of judicial performance evaluation. He said the Committee had received information about the Minnesota program and concluded it was a more streamlined, simpler program that was focused more precisely on judicial improvement, rather than "performance evaluation."
Judge Weir observed that the impetus for a judicial evaluation/improvement program originated several years ago with the state bar association in Minnesota. She said the concept was highly resisted by judges at first, largely because of concerns regarding confidentiality and the fear that the results of the program would become fodder for press reports. Ultimately, she said, the program was adopted by the District Judges Association and recently became mandatory. She said the program is new and, as a result, the impact of the program is difficult to assess. However, she suggested that, if establishment of such a program is considered, it is important to gauge the potential reaction of judges and to carefully deal with the issue of confidentiality. She stressed the importance of establishing the program as one directed at judicial self-improvement. She noted the Committee's previous discussion about ways of handling survey information in an improvement program and the concern that, given the relatively small community of judges, lawyers, and court personnel, it may be difficult to assemble survey information at the local level and still maintain anonymity. She recommended that the survey process be handled at a more centralized level, e.g., district-wide or at the Supreme Court level, rather than at the local, trial court level. She noted, for example, that in Clay County survey information is forwarded to district-level administrative staff in St. Cloud. Once the information is assembled and summarized, she said, the judge then selects who reviews the survey information with the judge. She then distributed a collection of survey questions developed over the years by the Minnesota state bar association. The information, she said, provides examples of the kinds of questions attorneys considered it important to ask of judges. The information is on file with staff.
Judge Vaa, appointed to the bench in January 2000, explained that as part of the new judge orientation program recently appointed judges are evaluated to review how they are doing. He said a mentor judge is designated for each new judge and the district administrator periodically sends surveys to court personnel and those regularly appearing before the new judge. He said the survey results are compiled and summarized and the result summaries are then reviewed together by the new judge, the mentor judge, and the administrator. He said that as a new judge he found the survey evaluations to be very helpful in identifying areas of improvement. He suggested the process would be equally as useful to those judges who have been on the bench for some time. He noted that after becoming a judge he was amazed at how little feedback judges receive from court staff. And, he said, lawyers are always reluctant to offer an opinion to the judge about how the judge is performing. He said some kind of evaluation process is very useful and should occur at least once during a judge's term of office.
In response to a question from Sen. Mathern, Judge Vaa said all the survey information is destroyed after the information is discussed by the judge, administrator, and mentor judge.
Magistrate Judge Klein wondered whether it was possible to control access to local survey information during the time it is maintained for review and discussion. Judge Weir responded it would likely be difficult to control access with respect to the small circle of people who may have access at the local level. That is why, she said, she would recommend that the information be taken out of the local area and maintained during the time of its use at a more centralized location.
With respect to the surveying process, Judge Weir cautioned against having a distribution process so broad that surveys are sent those who do not have any real exposure to the judge. She said that sending surveys to those who do not have regular contact with the judge often results in survey responses based on personality rather than first-hand information.
In response to a question from Judge Anderson, Judge Vaa said attorneys and court staff responded to his surveys in about equal percentages. He said when he reviewed his summary of survey information, he identified two areas in which he could improve - one mentioned by staff and one mentioned by attorneys.
In response to a question from Magistrate Judge Klein concerning how attorneys are selected for surveying, Judge Vaa said court administrative staff reviewed filings and case assignments to determine which attorneys appeared in the judge's court. Judge Weir noted that the Minnesota program also allows the judge to submit a list of attorneys and court staff to whom the surveys would be sent.
In response to a question from Justice Sandstrom, Judge Vaa said he was uncertain whether an attorney had to have appeared more than once before the judge to receive a survey. Judge Weir noted that the first question on the attorney survey concerns the frequency of appearance before the judge.
Sen. Mathern observed that as a legislator he has been contacted by general members of the public about how a judge has handled a case, but he has never been contacted by an attorney or court staff about a judge's performance.
In response to a question from Magistrate Judge Klein regarding surveying others besides court staff and attorneys, Judge Weir noted that the Minnesota program does permit sending surveys to probation officers, guardians ad litem, and others, such as social workers, who also appear in court. She said jurors have also been surveyed, but jurors only see a small part of what a judge does. In response to a further question from Magistrate Judge Klein, Judge Weir said the attorney survey does request information concerning whether the judge is courteous and treats parties with respect.
In response to a question from Justice Sandstrom, Judge Weir said there are twenty-four judges in her district.
Justice Sandstrom observed that there are fewer judges and fewer judicial districts in North Dakota than there are in Minnesota. The question becomes, he said, how to effectively conduct an improvement program in light of that smaller size.
In response to a question from Brian Neugebauer, Judge Anderson said there are approximately 40 court staff in the Southwest Judicial District, including all clerks, clerk staff, court reporters, and probation officers. Additionally, he noted that there are only three judges in the district. In response to a question from Magistrate Judge Klein, he said maintaining confidentiality would be difficult if the program were administered at the local level.
Justice Sandstrom suggested the possibility of using an outside consultant to manage the surveying process. Judge Weir said that may be an interesting possibility in light of North Dakota's smaller judge, staff, and lawyer numbers.
Justice Sandstrom said there is anecdotal information indicating some judges recently defeated in elections were surprised that there was a significant level of dissatisfaction among segments of the electorate with their performance. He said an improvement program may provide a way of informing a judge of possible problem areas. He noted that the Supreme Court recently adopted a rule establishing an informal complaint process that provides a mechanism for filing confidential complaints about the conduct of judges and court personnel.
Judge Weir said that while it may seem surprising, judges are generally unaware of their own behavior and how they are perceived by others.
In response to a question from Sen. Mathern, Judge Vaa said his mentor judge was selected by the district court administrator.
In response to a question from Magistrate Judge Klein concerning having a local judge serve as a mentor judge and review the survey information, Judge Vaa said he had no qualms about the involvement of a local judge and had found the experience very helpful.
Judge Greenwood observed that he was assigned two mentor judges after being appointed to the bench - one within the district, and one from outside the district. But, he said, the involvement of his mentor judges was not at the same level of intensity as that described by Judge Vaa.
With respect to considering establishment of an improvement program, Judge Weir emphasized the importance of developing a draft proposal with specifics for distribution to judges, rather than leave the subject to develop as a vague, ill-defined notion, which only contributes to distrust and suspicion on the part of judges. She reiterated that confidentiality is critical to the viability of the program.
Judge Weir said that even though the survey information is confidential, she would be happy to share the survey summary results with the Committee when her surveys are conducted in January 2003, if that can be arranged.
Chair Neugebauer thanked Judge Weir and Judge Vaa for taking time from their schedules to visit with the Committee about the Minnesota program.
Brian Neugebauer said it seems that if an "evaluation" program is to be promoted, confidentiality must be assured and the program must be directed at judicial improvement, rather than educating the electorate.
Magistrate Judge Klein asked whether an improvement program would be established by Supreme Court rule, established by the Judicial Conference, or developed in some other manner. Staff responded that the Committee could develop and recommend a proposal to the Supreme Court, perhaps after submitting it to the Judicial Conference for review and comment. He said the Committee could also survey the district judges about a possible proposal to receive an initial assessment about the worth of such a program.
Sen. Mathern agreed with Judge Weir's earlier comment about providing a detailed description of a possible program to judges so there is more information and less suspicion about what may be under consideration.
Lisa McEvers observed that the key person in the Minnesota program is the individual who assembles and summarizes the survey responses. She said in light of the state's small community of judges and court staff, there may be some value in using an outside entity, someone unknown to the parties, to review the survey results. Although, she said, there would be the prospect of additional expense associated with contracting with an outside entity.
Sen. Mathern said there is a state association of human resource managers that might be a possible resource as an independent, outside entity to assemble survey results.
Brian Neugebauer observed that state staff could likely identify those to whom surveys would be sent and then distribute the surveys. He said the survey responses could then be returned to the independent entity, which would assemble and summarize the results and provide the results to the person designated either by the subject judge or staff. After review, he said, the survey information could be returned and shredded.
Sen. Mathern suggested contacting various groups to see if any would be willing to participate in the program and what the cost might be.
In response to a question from Brian Neugebauer, Judge Anderson said local administrative personnel are likely the best resource for determining which lawyers have appeared before a particular judge. He said administrative staff could, therefore, identify the lawyers to be surveyed and could also identify which court staff are to receive surveys.
Tom Kuchera noted that under the Minnesota program not only are court staff and lawyers surveyed, but probation officers, social workers, and other affiliated personnel are surveyed as well. He wondered whether judges would be comfortable extending the survey process that far. Additionally, he noted that some court staff may be "supervised" by the judge, which may place them in a difficult situation if surveyed.
Judge Greenwood suggested, and Committee members agreed, that surveys should be limited to attorneys and court personnel, who generally have a better understanding of judge work.
With respect to the method and mechanics of surveying, Justice Sandstrom said an important consideration is the number of surveys that must distributed to obtain an adequate number of responses. He emphasized that the more the selection process can be automated for purposes of identifying those to whom surveys are sent, the less burdensome the process will be in terms of cost.
Chair Neugebauer asked how the Committee should proceed in determining whether to pursue the development of a judicial improvement program proposal.
Justice Sandstrom suggested, and Committee members agreed, that the Minnesota policy, along with a summary of possible changes the Committee has discussed, be distributed to district judges for comment.
Judge Anderson said the request for comment should emphasize the importance of confidentiality and that the program would be concerned with judicial self-improvement. Committee members agreed. Judge Greenwood said it is important, if the program is to serve its purpose, that surveys be conducted early in a judge's new term. Justice Sandstrom noted that a strength of the Minnesota program is that a judge can request that surveys be distributed more often during the judge's term. Newly elected judges, he said, may find that aspect of the program useful.
Magistrate Judge Klein suggested the request for comment explain that the Committee is considering use of an independent entity to compile and summarize survey results as a means of ensuring confidentiality and anonymity are preserved.
Sen. Mathern stressed the importance of casting the program as one directed at judicial improvement. The objective, he said, is to give the judge a tool for improvement purposes; "evaluation", in the strictest sense, is not the goal.
Justice Sandstrom observed that, under the Minnesota program, the person selected by the subject judge reviews a summary of the survey information, while the judge apparently takes notes about what is said in the summary. The subject judge, he said, does not receive a copy of the summary or the results. Brian Neugebauer said it would likely do no harm if the judge were to receive a copy of the survey summary, as long as the copy was not retained by the judge after the review was completed.
Brian Neugebauer said it will be necessary to address how confidentiality can be maintained if survey information is in the possession of a independent, third party. Justice Sandstrom explained that presentence investigation reports are one example of record information being confidential even though a third party is involved. He said Rule 32(c) of the Rules of Criminal Procedure provides for the confidentiality of presentence investigation reports and, typically, those reports are prepared by the Department of Corrections. He noted that the reaction of judges to the improvement program concept will be dramatically affected by the level of confidence in maintaining confidentiality.
Sen. Mathern said if the Committee considered it useful, he could request research by Legislative Council staff regarding the confidentiality issue.
After further discussion, Committee members agreed members of the Supreme Court should be included in the request for comment.
It was moved by Magistrate Judge Klein, seconded by Sen. Mathern, and carried unanimously that the Minnesota policy, along with a summary of possible changes, be distributed for comment as discussed.
Chair Neugebauer drew Committee members' attention to Attachment B (March 8, 2002) - minutes of the September 21, 2001, meeting. Justice Sandstrom noted that Judge Kleven's name is incorrectly spelled on page 8.
It was moved by Judge Anderson, seconded by Lisa McEvers, and carried unanimously that the minutes, with the noted correction, be approved.
There being no further business, the meeting was adjourned at 12:45 p.m.
Jim Ganje, Staff