State ponders judging judges
Maryland has long terms but lacks judicial evaluation that other states have
Baltimore’s highest-ranking judge faces removal for misconduct. City judges are criticized for their handling of gun cases during a record spike in violent crime. And landlord-tenant judges are undergoing retraining after multiple studies found them misapplying housing laws.
Amid the recent string of bad news about the bench, calls are intensifying for Maryland to establish a program to evaluate judges — a method endorsed by the American Bar Association and recommended nearly two decades ago by the state’s leading legal minds.
Maryland judges serve what are believed to be the longest terms in the nation — 15 years for elected Circuit Court jurists, a decade for District Court appointees. But unlike 17 states and the District of Columbia, Maryland does not routinely evaluate the performances of judges with the type of program that watchdogs say is essential to maintaining public trust, informing voters and helping judges improve.
“Judges in Maryland are kings and queens in their own courtrooms, so it’s hard
to enforce best practices,” said Laurie Duker, executive director of Court Watch Montgomery, which examines judges in domestic violence cases. “They don’t like to be told what to do.”
Six states post evaluations publicly, according to the Quality Judges Initiative at the University of Denver’s Institute for the Advancement of the American Legal System. Others publish summaries, or give the reports privately to judges or those who appoint them to improve performance.
Jennifer Yim is executive director of Utah’s Judicial Performance Evaluation Commission. The state agency’s program is considered one of the nation’s most exhaustive.
“Most voters don’t see the inside of a courtroom, so it’s hard for them to have information they can know and trust about judges’ performance,” Yim said.
That’s true in Maryland, Johns Hopkins political scientist Matthew Crenson said, where jokes abound every election year about how to cast ballots for judges whom no one seems to know.
“Those who do vote have no information whatsoever,” Crenson said.
The Maryland State Bar Association expressed opposition last year to contested elections for Circuit Court judgeships, in part, the organization said, because voters have a “a lack of familiarity” with jurists that may lead them to vote based either on party or, worse, the alphabetical order in which they appear on the ballot.
Such a process, the association said, is “a poor formula, to be sure, for a fair and impartial judiciary.”
The association convened a committee in 1998 to study judicial performance evaluation programs.
The panel was co-chaired by Steven I. Platt, a retired Circuit Court judge, and attorney Nell B. Strachan, and included two of the state’s most accomplished jurists: former Court of Appeals Chief Judge Robert M. Bell and current Court of Appeals Judge Sally D. Atkins. Members recommended establishing a mandatory evaluation program to be run by the Administrative Office of the Courts. The recommendation went nowhere. “We’re coming up on 20 years,” Platt said recently. “I do think it’s needed. We’d be better with it than without it. Judges should be as subject to as much criticism as anyone else.”
Circuit Court judges in Maryland are appointed by governors from lists developed by the state’s judicial nominating commissions. They then face voters in the next election.
District Court judges are appointed by a similar process, but never face election.
Platt said the nominating commissions expend tremendous amounts of time, effort and money to vet candidates for the bench — but they never formally follow up on their performance. “Is anyone watching them?” Platt asked. Strachan, Platt’s co-chair on the bar association committee, said an evaluation program would give the public more confidence in judges.
“There’s plenty of room for improvement,” she said. “But a project like that requires commitment of time, energy and money — and a lot of follow-through.”
Utah spendt $400,000 annually on its Judicial Performance Evaluation Commission over the past five years, according to budget documents. To understand how the 13-member commission works, consider Utah District Court Judge Su Chon.
Before Election Day last year, the commission posted reviews of all judges up for re-election. Chon was subjected to a scathing 10-page review in which survey respondents called her a “rude” and “indecisive” judge who had “failed to meet the minimum performance standard for legal ability.”
The opinions were developed through extensive surveys with lawyers, courthouse staff, jurors and litigants. Volunteer observers with no legal training watched judges for basic etiquette.
The commission’s advice to voters: remove Chon from the bench.
Chon countered in the report that she had been vetted and appointed by Utah’s governor in 2012, and none of her rulings had been reversed on appeal.
When the ballots were tallied, Chon ended up keeping her job. The victory did not bother Yim. The commission’s executive director was satisfied that voters had an exhaustive report to use.
Some in Maryland say the vetting by the state’s nominating commission, elections and disciplinary process are sufficient.
“Currently, the delivery of justice is guided by strict ethical rules for judges and attorneys,” Maryland Public Defender Paul DeWolfe wrote in an email. “These rules are more than minimum standards but rather stringent guidelines. Granted they are not a measure for concepts like ‘quality’ and ‘effectiveness,’ but they demand of judges (and attorneys) that they behave with integrity and impartiality.”
Some warn an evaluation of a sitting Circuit Court judge could give an advantage to an opponent who had no record on the bench to evaluate. That would chip away at how the system, they say, and the lengthy 15-year terms, help insulate circuit judges from politics.
A lengthy term “protects the independence of the judiciary from political influence,” said Russell McClain, a professor at the University of Maryland’s Carey School of Law. “We want to have independent decision-makers,” he said. “We don’t want them to be worried about being reappointed or re-elected.”
“Oversight is hard unless someone is sitting in the courtroom monitoring how decisions are being made.”
That’s exactly what Court Watch Montgomery does. Duker, the group’s co-founder, said a statewide evaluation program with courtroom observers as in Utah would improve the administration of justice.
The judiciary is “such a closed process,” she said. “There is a lot of clubbiness to it.”
Court Watch Montgomery deploys 70 volunteers to observe 500 protective order cases and 500 domestic violence criminal cases each year.
In 2011 and again in 2015, the group reported that judges were not using staggered exits out of courtrooms that are meant to keep victims from encountering abusers in hallways or parking garages. The District Court quickly enacted a new policy six years ago and issued a reminder in 2015.
The group also pushed judges to stop ordering parental visitations and exchanges of children in areas where victims could easily be abused again. In response, this month Montgomery County is opening a “safe passage” center for supervised visits and exchanges.
Duker said judges now appreciate the feedback, and will go to her with tips about colleagues.
The Quality Judges Initiative at the University of Denver has found that judges do not view the programs as a “threat or a challenge to their competence.” Instead, they see the process as an effective way to improve.
Recent research has shown that some surveys used in evaluation programs can be “systematically biased against minority and women judges,” according to the National Center for State Courts. “States must remedy weaknesses in their [Judicial Performance Evaluation] surveys if they wish to preserve the credibility of JPE programs in the public’s eye and within the court community.”
A spokesman for the Maryland Judiciary said the courts are not considering an evaluation program. The judiciary is using a data-collection process developed by the National Center for State Courts as part of an “approach to continuous improvement and quality service.”
The process, called CourTools, examines closure rates of cases and time management, not judges’ performance.
The last time the Maryland Judiciary conducted the system’s “statewide user survey at every court location” was in 2008, the judiciary said in a report. A new one is scheduled for next year.
Others say Maryland’s Commission on Judicial Disabilities is an effective process for rooting out problematic judges.
The commission ruled in October that Baltimore Chief Judge Alfred Nance should be removed from the bench for misconduct stemming from his “persistently disrespectful and unprofessional” interactions with a public defender. The commission had investigated Nance at least twice before during his 20-year career, and publicly reprimanded him in 2001 after female prosecutors complained that he had an explosive temper and commented on their appearance.
The commission’s recommendation now goes to the Court of Appeals for a decision.
Complaints filed with the commission — which come mostly from the public — are considered “confidential and not available to the public” unless the panel takes action.
Complaints to the commission have doubled over the past decade, from 117 in the fiscal year 2007 to 234 in fiscal 2017. Of the 234 verified complaints in 2017, three ended in charges. One ended in a public reprimand, and another resulted in an extension of probation.
Most complaints are dismissed because the commission finds them to be unsubstantiated or the actions reported do not amount to “sanctionable conduct.”
Among complaints that ended in warnings, judges were found to be “demeaning,” “threatening,” “condescending,” “irritable,” “short-fused,” “snide,” “rude,” and “racist,” or to have lacked impartiality.
Critics of the process say it can take too long, and does not always change behavior.
The commission held a hearing Thursday on charges filed against District Court Judge Mary C. Reese of Howard County. Duker said the case is a perfect example of how long complaints can take.
The Women’s Law Center of Maryland filed two complaints with the commission in July 2015. The commission ruled in April, nearly two years later, that Reese’s actions were “manifesting bias.”
Reese rejected the request of a 17-yearold girl for a temporary peace order against a man who had left her with a black eye visible in the courtroom. The girl told the judge she had blocked the man’s phone number to avoid contact with him.
“It looks to me like she’s taking care of it,” Reese said in court transcripts.
In a different domestic violence case, Reese told a woman that if she picks a fight with her abuser “you’ve got to expect to lose it,” according to transcripts.
In a response to the complaint, Reese called the allegations “a targeted attack on Judge Reese by an advocacy group with a political agenda.” She said she ruled correctly in both cases.
Michelle Daugherty Siri, executive director of the Women’s Law Center of Maryland, said she would not comment because the case is still pending.
The commission said its investigation “revealed sanctionable conduct by Judge Reese with regard to her unprofessional comments and behavior.”
A decision by the commission can take weeks or months. Duker called the process inadequate. “We need far better — and swifter — judicial accountability,” she said.