THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, February 27, 1995 TAG: 9502270061
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 165 lines
The announcement angered a lot of judges in San Francisco: The local bar association would evaluate them, sort the good from the bad, and - the clincher - release the results to the public.
The announcement came in July, and San Francisco's chief judge was not happy.
``The type of survey proposed,'' Judge Richard Figone wrote, ``does not substantively educate the public, and the publication of the survey has a risk of degenerating into a popularity contest.''
But bar leaders were firm. They conducted the survey and released the results in December.
``It was important to me to let the public know how well their courts are performing,'' said Raymond Marshall, president of the Bar Association of San Francisco.
Now, Norfolk lawyers will wrestle with the same question: When they evaluate the city's 19 state judges later this year, should they let the public see the results?
The answer may come in April, when the Norfolk and Portsmouth Bar Association is expected to vote on how to evaluate judges.
For now, details are unavailable. A committee of lawyers and judges is studying how to conduct the survey - what questions to ask, who should get survey forms, how to compile them.
But in several cities where evaluations are done, the most contentious issue is whether to release the results to the public. Lawyers love the idea; judges hate it.
``The politics of it are heavy,'' Marshall said.
Judges often see the surveys as job evaluations, like the ones that many private workers get each year at pay-raise time.
``The worst surveys are done, say, by a bar association with the goal of rating the five best or five worst judges,'' said Circuit Judge Marvin B. Steinberg of Baltimore, chairman of the Committee on Judicial Performance Evaluations for the National Conference of State Trial Judges.
``Those kinds of surveys do the worst damage and they're based on the worst information. They make good press and the media love them, but they don't do anything to improve judicial performance,'' Steinberg said.
But lawyers who fill out the surveys see them as a way of letting citizens know how the courts are doing.
In San Francisco, lawyer Richard Lucas made the case in an interview with The Recorder, a local legal newspaper: ``There is a regrettable tendency in American politics for some politicians to hide their incompetent cronies on the bench,'' Lucas said. ``We need some tradition of public accountability.''
In Virginia, citizens have almost no way of knowing how good their judges are. Virginia's judges are not elected, so they don't often explain their actions to voters or citizen groups. Also, Virginia's judicial review board, which investigates complaints against judges, acts in secrecy.
Until now, only one bar association in Virginia, in Fairfax County, has evaluated judges. The results are shared with the judges, the court's chief judge and, at reappointment time, Fairfax's state legislators - but not with the public.
Outside Virginia, many other bar associations release their results publicly, mainly in states with judicial elections. No one knows for sure how many cities or states evaluate sitting judges, but it is done mostly in places that have judgeship elections.
Two cities recently completed their evaluations: Louisville, Ky., and San Francisco, both of which have judicial elections. Here's what happened:
In Louisville, the story was buried in a Saturday edition of The Courier-Journal, the local newspaper. It was easy to miss.
The story appeared on page A7, the metro-front page that day, Jan. 28, under the headline: ``Jasmin fares badly in survey of area's lawyers.''
It was indeed a dismal showing for Circuit Judge Ernest Jasmin. Evaluations by the Louisville Bar Association gave Jasmin the worst rating, by far, among Jefferson County's 20 state and federal judges.
In every category - judicial integrity, legal ability, judicial temperament and court management - Jasmin scored at the bottom. It wasn't even close. He got a favorable overall rating from only 44 percent of the lawyers surveyed. Almost every other judge scored in the 80s and 90s.
The newspaper ran a chart showing every judge's rating in every category.
Predictably, Jasmin was not happy with the result. ``There's some folks out there who have some ax to grind with me,'' said Jasmin, a former prosecutor.
But Jasmin apparently was in the minority among his colleagues. Few other judges in Louisville have complained about the survey or its publication. In fact, said bar president Rebecca Schupbach, the process was uncontroversial.
The bar association has been doing the evaluations for years.
``It is an educational process, not only for the judges themselves but for the public,'' Schupbach said last week. ``We have had individual judges unhappy with a particular evaluation, but . . . most of the judges feel we're doing a valuable service for the judiciary and for the public.''
In Louisville, judges are evaluated every other year. In the recent survey, 388 lawyers responded - 11 percent of the 3,500 area lawyers.
Under the survey rules, lawyers could comment only on judges with whom they have had substantial contact in the past two years.
The results are helpful to voters, who elect local judges, but that's not why the survey is done, Schupbach said. ``We time the evaluation so it's as far away from the elections as possible,'' she said.
In an editorial Jan. 30, The Courier-Journal summed up the results: ``The verdict on Jefferson County's circuit judges and on the federal judges based here is that most continue to do a good job.''
But, the editorial concluded, ``Since relatively few lawyers participate in the bar poll, the results aren't considered definitive and are just one of many factors voters should weigh. Their value is greater, however, to lawyers eyeing a campaign for the judiciary. Poll results serve as a tip-off that some incumbents are ripe for good challengers.''
In San Francisco, the mood was angrier.
``Because it was our third time around,'' said Marshall, bar association president, ``the controversy was not on doing it, it was over whether to make the results public.''
Judges were adamant. They saw no point in releasing the results. That would only drive a wedge between lawyers and judges.
Richard Figone, the Superior Court's presiding judge, refused to help the bar association conduct the survey. ``We felt that there was nothing that we could offer them by way of expertise,'' Figone told The Recorder. ``It's for the statisticians to decide whether they can find a population of attorneys that can render a statistically valid result.''
Yet the bar association voted in July to release the results.
``Maybe the public should have that information,'' local lawyer Cheryl Stevens told The Recorder. ``They don't want to find out on Nov. 5, the day after the (judicial) election, `Oh, this guy wasn't such a great judge.' ''
It wasn't San Francisco's first judicial evaluation.
In 1976, the bar association conducted its first survey. As judges feared, the San Francisco Examiner used the evaluations to rank the judges. Judges howled. The bar association backed off, dropping the survey and creating a Judicial Review Committee.
By 1991, tempers had cooled, so the bar association revived the idea. This time, the results were kept confidential.
But in 1994, the mood was nasty again. This time, Californians were fed up with judges and courts after the controversial trials of Rodney King, the men who beat Reginald Denny, and the Menendez brothers.
It was time to restore public confidence, the bar association decided.
``I felt there were three reasons to do the evaluations,'' Marshall said. ``One, to help court performance. Two, to let members of the bar know how the courts are doing. And three, to inform the public of the workings of the court.
``The only way you could achieve the latter two was to make the results public. So for me, it was a very easy decision.''
It was a huge survey, rating 96 judges in 23 categories. The response was relatively light. Only 910 of the area's 17,000 lawyers - about 5 percent - responded.
Results were released in December: a fat 300-page report, including, as The Recorder described it, ``a three-page statistical morass'' on each judge.
The results defied easy ranking, and that was fine with the bar association. ``We specifically avoided a numerical ranking,'' Marshall said. ``What we did not want was a popularity poll.''
The two local newspapers barely covered the survey. ``There were no contested elections, so maybe it wasn't as newsworthy,'' Marshall speculated.
In Norfolk, two judges attended an initial meeting on evaluations. They disagree on whether to make the results public.
Circuit Judge Charles E. Poston said he would not mind if the raw scores were made public, but he opposed releasing lawyers' comments on individual judges. ``I think judges, like anyone, should be accountable,'' Poston said.
But Judge James H. Flippen Jr. of Juvenile and Domestic Relations Court said the entire evaluation should be kept confidential.
``I think that any judge who is properly doing his job would have no fear of anything that the evaluation would produce,'' Flippen said. ``I think the one big danger that has to be guarded against is the evaluation results being made public. You could well understand that any critical comment of a given judge could undermine the confidence in that judge.'' ILLUSTRATION: KELCEY NEWMAN/STAFF
KEYWORDS: JUDGE SURVEY by CNB