The following is a memo from Virginia Supreme Court Justice Donald W. Lemons to all active members of the Virginia State Bar concerning the implementation of appellate judge evaluations.
To: Active Members, Virginia State Bar
From: Chief Justice Donald W. Lemons
Date: April 18, 2017
Re: Judicial Performance Evaluation Program – Appellate Evaluations
I am writing to update you on developments related to the Judicial Performance Evaluation (JPE) Program. The JPE Program serves two purposes: to provide a self-improvement resource for judges and to provide information for use by the General Assembly in the judicial re-election process. Over 350 evaluations have been completed since 2014, when funding was restored to the Program. To those of you who have been surveyed and have responded, please accept my thanks.
Although evaluation of appellate judges was contemplated by the JPE Task Force in the early 2000s, appellate evaluations have not yet taken place. There are significant differences between the way trial court judges and appellate court judges and justices perform their duties. There must be corresponding differences in the way that they are evaluated.
Virginia Code § 17.1-100 requires us to take action concerning appellate evaluations. It provides, in part:
A. The Supreme Court, by rule, shall establish and maintain a judicial performance evaluation program that will provide a self-improvement mechanism for judges and a source of information for the reelection process. By December 1 of each year, the Supreme Court, or its designee, shall transmit a report of the evaluation in the final year of the term of each justice and judge whose term expires during the next session of the General Assembly to the Chairmen of the House and Senate Committees for Courts of Justice.
In 2016 the JPE Advisory Committee convened an appellate evaluation subcommittee, chaired by the Honorable Teresa M. Chafin, Judge of the Court of Appeals of Virginia, to develop a protocol for evaluation of appellate jurists. The Subcommittee considered programs in place in other states, as well as recommendations published in 2013 by the Quality Judges Initiative at the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver.
The subcommittee’s recommendations were approved by the full JPE Advisory Committee and were presented to me by Justice Cleo E. Powell, Chair of the Advisory Committee. I approved these recommendations, with some minor amendments. The appellate evaluation process will be similar to our evaluation of trial court judges because attorneys who have observed or appeared before appellate jurists will be surveyed about what they have observed in the courtroom. Where appropriate, the same performance factors are used. The appellate survey for attorneys also will have a section asking attorneys about opinions authored by the evaluated justice or judge within the past three years. This opinion section will also be sent to all active circuit court judges, who will be able to evaluate our recent opinions.
A distinct aspect of the appellate review process will be direct opinion review. For this purpose, I have appointed an Appellate Evaluation Committee. The Committee is comprised of retired or senior Supreme Court justices, retired or senior Court of Appeals judges, retired circuit court judges, and a law school professor. The evaluated justice or judge will select a set number of opinions, from specific categories, for review. The opinions will be reviewed independently by the members of the Committee, who will then meet to develop a consensus review for each opinion.
Using this multi-faceted approach, we endeavor to create a reliable view of the appellate jurist’s performance, which will be valuable to the individual for self-improvement and to the General Assembly for re-election decisions. As with trial judges, interim evaluations will be confidential and end-of-term evaluations will be available to the public.
A pilot appellate evaluation process is underway. Judge Chafin, Justice Cleo E. Powell and I are the pilot program participants. Learning from experiences in the pilot, the appellate evaluation process may be adjusted as necessary before it is implemented in 2018.
The JPE Program is an important tool for Virginia’s judges and for the General Assembly. It is my hope that you, as members of the Bar, will continue to support the Program by completing surveys you may receive for trial court judges, and now appellate judges and justices.
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