When the Judicial Performance Evaluation Commission (JPEC) first decided to use a new concept called “procedural fairness” to assess the performance of judges standing for election, I was skeptical. As a practicing trial lawyer with over 40 years of experience and as previous chair of the Judiciary’s Committee for Evaluating Judicial Performance, I wondered how the information developed under such a “fuzzy” term could really help the voters. Could this new approach really determine whether a judge was doing a good job? Would a favorable score in this part of the evaluation help the voters determine whether the judge deserved a “yes” vote for retention? Historically, the evaluations of judicial performance had been performed mainly by attorneys, who completed surveys that defined “good judging” by focusing on personality traits or innate characteristics perceived to be important or desirable in judges.
Today, the role of judges has expanded. Judges are now often called upon to address problems outside the adversarial nature of courtroom disputes. Sometimes the judge must evaluate psychological or social issues underlying patterns of criminal behavior. More people in court represent themselves, and the judge must ensure that EACH party is afforded a fair trial. The judge must communicate clearly so that each party involved in the litigation understands the process and feels they have had the opportunity to participate in the case by expressing their viewpoint. The judge must be neutral, consistently applying legal principles as an unbiased decision-maker. The judge must take care to clearly explain how decisions are made. Each person in the courtroom must be treated with respect and dignity, with all rights explicitly protected. And ultimately there must be a trust created in all the participants in court that the judge is caring and sincerely trying to help everyone involved in the dispute, a trust shown by listening to individuals and explaining or justifying decisions that address the needs of all the participants. This array of behaviors is what we call “procedural fairness.”
Utah leads the nation in using procedural fairness to help evaluate its judges. In addition to reframing the language of its survey, reducing emphasis on the judge’s personality traits and focusing instead on observable courtroom behaviors, JPEC has implemented a courtroom observation program. This program uses trained citizen volunteers who visit courtrooms around the state and then write narrative reports describing the behaviors they observed and to what extent, in their view, the judges acted in procedurally fair ways. Utah’s courtroom observation program has been praised by numerous legal and judicial organizations around the country as an “important development,” leading the way towards improving the performance of judges and the quality of the legal system overall. Utah’s Chief Justice Matthew B. Durrant made procedural fairness the cornerstone of his 2014 state-of-the-judiciary address, stating that “(the judiciary) had taken the research in this area to heart, educated our judges and helped them hone these skills.”
Improving the delivery of justice in our judicial system is everyone’s responsibility, including every voter. I have come full circle in my assessment of the importance of procedural fairness and now see it as an extremely helpful tool in the evaluation of each judge’s performance. In my view, procedural fairness as practiced by our judges is one important element to consider as you cast your vote.
JOHN P. ASHTON