Nineteen judges who are up for retention this year went before the Commission on Judicial Performance Review on June 15 to explain themselves for bad marks they got in surveys on their performance.
Those low grades, however, probably won’t translate into the commission deeming a spate of judges — even ones who got low scores on the surveys — on the November ballot as unfit. Historically, the commission has unanimously found nearly all judges meet judicial standards under the merit and retention system in Arizona.
The commission’s findings and the abundance of data it uses in the evaluations are passed on to the voters, who decide on whether the judges stay or go. But critics say the data is based on surveys that produce low responses and are statistically invalid, while backers say the surveys suit their purposes of getting feedback on people who directly interact with the judges.
“Unless the survey is done scientifically, then it has little value,” said Bruce Merrill, a political scientist and pollster. “I would argue that they’re dangerous, because you can get some very wild results that probably are not close to the population you want to generalize.”
This year, there will be 80 judges from Superior Court, the Court of Appeals and the Supreme Court up for retention on ballots in Maricopa, Pima and Pinal counties. The evaluation process began with surveys distributed to attorneys, litigants, witnesses and jurors who appeared before those judges during a four-month span. Judicial staffs also are surveyed. The Behavior Research Center, a Phoenix polling firm, tabulates the responses.
The surveys ask respondents to rate judges on a host of categories such as their integrity, fairness, temperament and legal knowledge.
The data for 2012 won’t be public until after the commission votes next month on whether judges “meet” or “do not meet” standards, a designation that appears in the voter guide. The identity of judges who met with the commission on June 15 is also kept anonymous.
One certainty is there was a 26 percent response rate among lawyers in 2010, and sometimes the results were so low the results were skewed.
For example, only seven attorneys out of 29 who got surveys responded for retired Maricopa County Superior Court Judge Gary Donahoe, but 33 percent of the respondents found his performance to be unsatisfactory when it came to legal ability, communication skills and temperament, which triggered an automatic “letter of concern” to him and a request by the commission to appear before the panel and explain himself.
The 27-member commission unanimously agreed he was fit to be on the bench.
“If you sent out 50 interviews and you got seven back, the only value is you can say is here’s what these seven people say,” Merrill said.
“The question becomes, is that group of seven representative of all lawyers. Obviously, it isn’t.”
Bruce Hernandez, Behavior Research Center’s senior vice president, designed the survey methodology nearly two decades ago. He said lawyers have decent response rates and are well represented in the surveys because they have a vested interest.
“Nothing is ever a perfect methodology, but what they have done is taken steps to go out there and get a snapshot view of how these various universes feel about the thing,” Hernandez said.
Seth Anderson, executive director of the American Judicature Society, an Iowa research and education group that focuses on the judicial system, said several states use similar survey methods to evaluate judges and they are intentionally designed to be different from a traditional public opinion poll.
“They are trying to obtain more experiential-based information from people who have actually practiced in front of judges or appeared in a case before them or been a witness, etcetera,” Anderson said.
Maricopa County Superior Court Judge Crane McClennen said his gut reaction is that mostly dissatisfied people tend to respond. McClennen is up for retention this year. He said he got good marks and wasn’t called in by the commission, but in 2008, commissioners determined he wasn’t fit to be on the bench, the first time that happened for any judge since 1998. The voters kept him anyway.
McClennen’s temperament was an issue in 2008, but he said he hasn’t done anything dramatically different in the past four years and didn’t go through any additional training, except to get advice from fellow judges.
“I’m trying to be more careful in choosing (my) words in talking to the attorneys,” he said.
In 2010, the commission gave a unanimous favorable recommendation to 58 of the 66 judges on the ballot. Only one, Maricopa County Superior Court Judge Bethany Hicks, spurred any sort of controversy among commissioners, who decided on a 15-12 vote she was fit.
Mike Hellon, the commission chairman, said the commission relies heavily on the data from the surveys, but also relies on comments it gets in public meetings, letters and the face-to-face meetings it has with the judges who got bad marks.
He said those conferences help to put the data in context. For example, judges assigned to family and juvenile courts, where there is a heavy emotional element because of the issues involved, typically generate more negative results.
“For those of us who are not lawyers and not judges, it’s important for us to hear from the judges what really happens and where it’s appropriate to hold to strict standards and where it’s appropriate to be understanding about what these judges have to face,” Hellon said.