MBA preps rollout of judicial evaluations

Issue February 2005

The MBA this month will begin testing its new electronic judicial performance evaluations system.

Members will have the opportunity to fill out the evaluation forms online beginning in February, but the system will not be officially launched until sometime in March. Data collected between now and March will be used by the Judicial Evaluations Standing Committee to make sure the system is operating correctly, but will not be released to anyone, including judges.

Once the system is officially launched, the standing committee will forward evaluation information to individual judges, his or her chief justice and Chief Justice for Administration and Management Robert A. Mulligan on a quarterly basis.

The form looks at 19 specific criteria, which were developed over the years by the MBA and reflect recent guidelines approved by the American Bar Association for evaluating the performance of judges.

"The goal is to improve the performance of individual judges and the judiciary as a whole," said Judicial Evaluations Standing Committee Chair and MBA Vice President Edward W. McIntyre.

"Our point is to maximize the potential of every judge on the bench," McIntyre said. "We want to give each of them every opportunity to achieve that excellence. We want them to be the very best judge they can be. We also want to maintain judicial independence and bolster public confidence in the administration of justice."

The judicial performance evaluation system seeks to address four areas: the promotion of judicial self-improvement; the enhancement of the overall quality of the judiciary; the detection of systemic issues; and the creation of continuing legal education programs to address issues.

"The process looks at preserving judicial independence," McIntyre said. "It's totally apolitical, non-ideological, devoid of issue-oriented considerations," he said. "The evaluation's predicate is improving judicial performance."

The evaluation system will identify and address those situations where a judge has exhibited a pattern of behavior in the courtroom that demonstrates a lack of judicial temperament or disrespectful courtroom demeanor or failure to timely discharge his/her administrative duties. The evaluations, which initially will be limited to the MBA's 18,500 members statewide, are not designed to criticize judges for exercising their discretion and independence in decisions, which is the hallmark of the state's long-respected and distinguished judiciary.

"This initiative assesses a judge's performance and fairness is the overarching concern of everybody on the standing committee," McIntyre said. "We're committed to preserving judicial independence at a time that it is under siege by elements within the commonwealth and across the nation. Massachusetts is only one of three states where judges have lifetime appointments. We are about preserving what Massachusetts has had for over 200 hundred years: merit selection, lifetime tenure and judicial independence."

The MBA last conducted independent judicial evaluations in 2000. That survey of 4,000 members resulted in a 92 percent favorability rating of the state's judges.

Those who complete the evaluations will not be identified by anyone seeing the results. The names of attorneys completing the forms will be scrubbed from the form as it works its way electronically through the MBA computer system. Similarly, judges' names won't appear on the final form.

"Each judge will have a unique set of identifiers and there will be no names on the forms as they are moving through the computer and when they are generated or printed out," McIntyre said. "A key will be required to identify who the evaluation is that you are looking at. State-of-the-art encryption is being employed to ensure anonymity of the participant and total confidentiality in the evaluation data being generated on a particular judge."

The committee will compile the data monthly and release it to the judge being evaluated as well as to his or her chief justice and Mulligan quarterly. Initially, the information was only going to be released to the CJAM and the chief justice, but the House of Delegates on Jan. 19 voted to give it simultaneously to the judge it is concerning.

"We've heard back from judges and we've listened to them and individual judges prefer to get the information simultaneously," McIntyre said.

The results of the evaluations will be confidential, unless the Standing Committee determines it is in the interest of the administration of justice to make them public. In such a case, the committee would recommend publication to the MBA officers, who would use their discretion.

Though the trial court recently has announced its decision to also pursue electronic surveys, the MBA will continue with its initiative, which was approved by the MBA House of Delegates in March 2004.

"We commend the court's initiative, stand prepared to assist it in its initiative and wish it the greatest success" McIntyre said. "Perhaps at some point in the future we might be able to develop some synergy between the court and the association's Internet-based judicial performance efforts."

In addition to the evaluation criteria, the form asks respondents questions regarding their race, gender, ethnicity and type of law practice.

"Our research indicates that demographic information would be useful to a judge looking at the data collected on him or her," McIntyre. "Moreover, these data may reflect systematic issues in the administration of justice."

The Judicial Evaluation Standing Committee will have day-to-day oversight of the evaluations, but will ultimately report to MBA officers. In addition to McIntyre, the standing committee includes: Nancy King of Framingham; Marc Perlin of Suffolk University Law School, Boston; Francis J. Lynch, III, of South Easton; J. Owen Todd of Todd and Weld, LLP, Boston; the Hon. Dina E. Fein of Springfield; Steven L. Hoffman of Cambridge; Randy S. Chapman of Chelsea; Jeffrey S. Stern of Boston; Marilynne R. Ryan of Walpole; Robert Costello of Boston; Janet Kenton-Walker of Boston; and Martin W. Healy, MBA General Counsel, ex-officio member.