November 2012 Bar Bulletin
 
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November 2012 Bar Bulletin

Presidents Page

The Judicial Evaluation Survey: Questions and Answers

By Richard Mitchell

 

The 2012 election cycle has been a challenging one for the King County Bar Association. Of the many services our association provides to the community, those relating to judicial elections are provided through volunteer committees whose decisions and recommendations are not influenced by KCBA's Board of Trustees, and whose commitment to ensuring a strong and independent judiciary is without question.

Together, these committees, comprised of lawyers and non-lawyers, provide an invaluable service to the community - one whose real and perceived integrity is often complicated by political exigency, as well as internal procedural and administrative challenges in responding quickly to issues in a political environment. Nonetheless, when concerns are raised about services provided by KCBA, it is paramount that we respond and maintain the high regard with which KCBA's services to the community are held. To that end, as to committees of the association, KCBA's Board of Trustees bears the responsibility of overseeing committee work and ensuring that recent issues raised are addressed.

Before I became KCBA president on July 1, our Judicial Evaluation Committee (JEC) became the subject of at least one newspaper article in the preceding month. As the newspaper articles continued during the summer, the JEC increasingly became the subject of focused discussion among the Board of Trustees. In an effort to better understand the concerns raised by members of the bench, bar and press, I have met or talked with trial lawyers, judges and prosecutors, past and present committee chairpersons, past presidents, and KCBA consultants. I have asked members of our Board to conduct their own investigations and make independent recommendations to the Board. While this process has taken some time, which, given the speed of election news cycles, feels like an eternity, it has been essential to the process of understanding the issues before prescribing any solutions.

Since 1948, KCBA has conducted and published a subjective evaluation of sitting judges in King County. The goal of the survey has always been to provide the public and the bar with an assessment of how local judges are performing. With this information, those who may wish to run for a judicial seat can make a reasonably informed decision.

Likewise, practitioners are provided with information that allows them to decide whether they wish to have a particular matter heard by a judge or not. Given the very nature of the survey, the results of which KCBA publishes every four years, the goal of making it scientifically objective is all but impossible. In the end, the survey is a collection of subjective observations made by practitioners appearing before local judges; as a result, it is published with numerous qualifications.

Where a comprehensive survey was once mailed to all KCBA members, individual surveys are now sent only to practitioners who have appeared before a particular judge. The survey methodology once allowed consideration of responses from practitioners who had appeared before a judge within a four-year period. It now only considers responses from practitioners with direct experience within the two-year period preceding the survey.

The questions asked are now better designed to focus on universally accepted criteria that address expected judicial skills - legal decision making, demeanor and temperament, administrative skills, integrity and impartiality. Similarly, as the survey methodology has evolved, so too has the JEC's direct involvement in crafting and considering its results, by virtue of KCBA's hiring of a consultant to conduct the survey and aggregate its results.

While the methodology employed by KCBA to gather survey information has continued to evolve in the last 70 years to improve its reliability, one aspect of it - anonymity of individuals or a class of individuals - should remain sacrosanct. The reason for this is to preclude any real or perceived reprisals by those being critiqued against those who may negatively evaluate them, and to ensure the future participation of all practitioners in this important service to the community.

This year's survey1 was conducted during February and March and published on April 13.2 The next month, it was seized upon by The Stranger to justify imploring someone to run against Judge Chris Washington whose ratings were lower than other judges.3 Judge Washington drew three challengers, one of whom, Suzanne Parisien, was subsequently endorsed by The Seattle Times4 and The Stranger5 in the primary, based in part on KCBA's judicial evaluation survey results.

In direct response to requests from certain members of the bench about the survey's statistical validity, and without authorization from KCBA's executive director or Board of Trustees, KCBA's consultant, Prof. David Brody, emailed to The Stranger and others a personal analysis of "contextual factors" relating to only Judge Washington's survey results.6 In doing so, he questioned the ability of anyone to draw conclusions from the survey results due to the relatively low number of respondents for Judge Washington; unfairly characterized as "inexperienced" the lawyers who work in Juvenile Court; impugned the motives of prosecutors who evaluated Judge Washington;7 and inappropriately disclosed members of the King County Prosecuting Attorney's Office as a category of respondents.8 KCBA's Board of Trustees was not made aware of the communications that led to Prof. Brody's email, much less his email, until after it was sent. Prof. Brody's disclosure violated KCBA's long-standing and unchanged rule of anonymity for survey respondents, and raised a number of concerns.

Not surprisingly, certain members of our King County Superior Court bench, the Prosecuting Attorney's Office and the bar raised eyebrows, each viewing Prof. Brody's June 25 email in the cauldron of an election cycle. The Times, in particular, withdrew its endorsement of Parisien - citing several reasons for doing so - and endorsed Judge Washington in the general election.9 Interestingly, The Times did not contact KCBA or the prosecutor's office before issuing its editorial, incorrectly stated that Parisien "turned down the King County Bar Association's request to appear at a public forum" and remarkably alleged that "20 prosecutors manipulated" the survey.10 In fact, Parisien attended KCBA's Superior Court judicial candidate forum on July 10, but was unavailable for a second one,11 and a statistical variation does not automatically equate to evidence of intentional manipulation.

Similarly, The Stranger withdrew its endorsement of Parisien and endorsed Judge Washington, calling KCBA's ratings "rubbish" and "skewed by prosecutors who sandbagged Washington."12 Like The Times, The Stranger also failed to contact the prosecutor's office and KCBA before publication. More importantly, the disclosure created palpable tension between some members of the Superior Court and some prosecutors. Clearly, the frustration and misinformation over the survey had reached a fevered pitch, signaling the need for a fundamental change.

When looking at KCBA's judicial survey over the seven decades, one can easily see how its reliability has improved. However, the opposite can also be said. Some recent changes, both internal and external to the survey, have also created concerns that need to be addressed.

More importantly, the disclosure of a category of survey respondents, and the resulting assertions going back and forth among all sides, have had a profound effect on the bench, bar and community. They highlight the inherent challenge that exists between practitioners judging judges, and doing so with an inherently subjective survey that strives to be objective. They create an air of mistrust between some judges and prosecutors.

They also underscore the need for KCBA to continually evaluate the survey methodology, JEC involvement and the survey results to ensure that anomalous results are not published. To do otherwise undermines the high level of professionalism prevalent within our bar, and puts at risk both the reputation and careers of those who have committed themselves to a life of public service.

Therefore, in response to these recent challenges, KCBA is committed to refining the survey and the work of the JEC, and I am proposing the following changes to our survey process:

(1) conduct the survey in the year before each judicial election cycle and release the results early in the year of each cycle;13

(2) organize survey questions within each distinct criterion such that only clear questions related to the criterion at hand are asked;14

(3) increase the time period during which responses will be accepted;15

(4) qualify or don't disclose anomalous ratings, where an unusually high number of one category of respondents, or a low number of respondents, risks the potential for skewed or unreliable results for a particular judge;16

(5) further qualify that ratings cannot be viewed comparatively as each judge is being evaluated by a different set and number of respondents under varying circumstances;17

(6) reconstitute and re-empower KCBA's Judicial Evaluation Committee to oversee the crafting of the survey questions, and their organization and aggregation, with the assistance of a KCBA consultant;18 and

(7) ensure that a direct line of communication is maintained between the Judicial Evaluation Commit­tee and the Board of Trustees.

While the above is not intended to be an exhaustive list of remedies, it is my hope that with some or all of the proposed adjustments, KCBA will continue to improve its Judicial Evaluation Survey, as well as the bench's, bar's and community's confidence in it.

Finally, it bears repeating that the disclosure of a category of respondents to the survey should not have occurred. On behalf of KCBA, let me be the first to apologize for that disclosure and commit to you that KCBA will take every reasonable measure to ensure that such a disclosure does not occur again.

1 http://www.kcba.org/judicial/surveys/2012_final_superior_court_report_summary_041212.pdf

2 KCBA Press Release, April 13, 2012, "Survey Gives High Scores to King County Superior Court Judges" - http://www.kcba.org/judicial/surveys/surveys.aspx#.UHnNv8XAe-E.

3 SLOG News & Arts, May 16, 2012, "For Christ's Sake, Would Somebody Please Run Against Judge Chris Washington?" - http://slog.thestranger.com/slog/archives/2012/05/16/for-christs-sake-would-somebody-please-run-against-judge-chris-washington.

4 The Seattle Times, July 24, 2012, "The Times recommends: For King County Superior Court – Parisien, North, Berns, O'Donnell and Ramseyer" - http://seattletimes.com/html/editorials/2018762310_edit25kingcountysuperiorcourt.html.

5 Stranger Election Control Board, July 17, 2012, "Endorsements for the August 7 Primary Elec­tion (PLUS CHEAT SHEET!)" - http://www.thestranger.com/seattle/vote-or-well-kill-you/Content?oid=14208972.

6 Prof. David Brody, email dated June 25, 2012, to The Stranger, et al.

7 "What does give me pause is that the prosecutors (in aggregate) rated Judge Washington's performance significantly lower than the other attorneys across all 16 questions. While I have no opinion or way of knowing which set of attorneys may be more accurate in their assessments, when one identifiable class of respondents provides internally consistent responses which are significantly different from respondents outside the class, the corresponding results must be viewed with caution. This is especially true when the class of respondents in question makes up nearly half of all evaluation participants." Id.

8 "Specifically, of the 44 attorneys completing the evaluation, 20 of them worked for the Prosecuting Attorney's Office." Id.

9 The Seattle Times, October 10, 2012, "Editorial: The Times recommends Chris Washington for King County Superior Court" - http://seattletimes.com/html/editorials/2019398014_editendorsechriswashingtonxml.html.

10 Id.

11 KCBA was unable to schedule a general election forum between Judge Washington and Parisien, after Judge Washington confirmed his intent to participate on the date initially proposed by KCBA to both candidates, as Parisien decided not to participate in additional debates.

12 The Stranger Election Control Board, Oct. 16, 2012, "Endorsements for the November 6, 2012, General Election" - http://www.thestranger.com/seattle/the-stranger-election-control-boards-endorsements-for-the-november-6-2012-general-election/Content?oid=15029933.

13 This should afford all those involved an opportunity to reasonably evaluate and interpret the survey results well in advance of any election filing period.

14 This should limit the ability for poor scores on a question unrelated to a criterion lowering the overall score for that criterion.

15 This should reduce the possibility of a judge on a two-year rotation (e.g., Juvenile Court) having an unusually small - and statistically questionable - universe of practitioners responding to the survey. It should also minimize the ability to draw unfounded conclusions concerning the motives of those who participate in the survey.

16 This should limit the ability for skewed results to be misinterpreted.

17 While KCBA's survey already contains qualifications in this regard, additional qualifications may be needed.

18 This will allow the KCBA to return to a process that places greater ownership of and involvement in the survey in the Judicial Evaluation Committee and not a consultant to the association.

 

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