Share this on Twitter Share this on Facebook Share this on Linked In Share this by Email
MCLE Self-Assessment Test

JNE may have to change its ways

After coming under fire last year for the leak of a judicial candidate’s rating, the panel that evaluates nominees for the bench may have to change some of its ways. A committee of the State Bar Board of Governors recommended last month that a “not qualified” rating of a judicial candidate be made public if that person is named to the bench despite the rating. Such disclosure currently is discretionary.

“The change was recommended in the interests of full transparency,” wrote public board member Richard Rubin, who chaired a committee appointed by President Howard Miller to evaluate the policies and procedures followed by the Commission on Judicial Nominees Evaluation. Rubin’s committee made two other recommendations that were submitted to the board but not acted on.

Miller appointed the panel following the disclosure of JNE’s “not qualified” rating for former state Sen. Charles “Chuck” Poochigian, who now sits on the Fifth District Court of Appeal. The rating was decided, according to then-JNE chair Jonathan Wolff, because Poochigian had not practiced law for 21 years, had no criminal law or jury trial experience and had never handled an appellate case. His years in the legislature were not enough to overcome his lack of legal experience, JNE said. Gov. Schwarzenegger questioned the commission’s impartiality and cited the leak of the rating as one of the reasons for his October veto of the bar’s fee bill.

Although the bar does not control JNE’s activities, Rubin said, it appoints the commissioners and “can be held accountable even though we played no role” in the ratings of judicial candidates. The issue facing his committee, he said, is “how can the bar protect itself from unjust criticism and preserve confidentiality.”

He said 63 candidates were rated “not qualified” between 2007-09 and of the handful of leaks, only one was traced back to a JNE commissioner. All commission deliberations are required to be confidential.

The committee also recommended that the “not qualified” rating should be preserved, but an alternative rating — “not recommended at this time” — be added. Judicial candidates who are not nominated should not be discouraged from reapplying at a later time, the committee said, when they might be found qualified because of additional experience.

The committee also urged that an investigation of any future leaks be undertaken within seven days of a reported breach of confidentiality.

Rubin’s committee will continue to review JNE operations and its eventual proposal will likely be circulated for public comment.

JNE itself took the first step toward going electronic last month in an effort to eventually adopt an online process for evaluating its confidential comment forms. In a pilot project in Ventura County, it e-mailed the forms to 1,200 randomly chosen lawyers in the county, asking them to provide input about a single candidate for the bench. In coming months, the commission will expand its testing to other counties with an ultimate goal of saving time and money.

In a typical year, JNE evaluates and rates between 175 and 275 judicial candidates for possible appointment to the bench by the governor. Each candidate provides 50 to 75 references to whom JNE sends a confidential comment form. In addition, the commission creates a random list of lawyers, judges and private citizens in the county based upon its belief that those on the list have a reasonable chance of knowing something about the candidate. The number of evaluations varies widely, depending on the county where a candidate would sit on the bench. In a small county, for example, JNE might distribute 200 forms for evaluation. In larger counties, such as Los Angeles, more than a thousand people could be asked for input. The precise distribution list is spelled out in JNE rules that include requirements that questionnaires be sent to superior court judges and appellate justices in the county as well as a broad cross-section of attorneys who practice in the same area as the candidates. The rules require that at least 50 comment forms be returned.

The process generates reams of paper, costs thousands of dollars annually and is time-consuming both for those who fill out the forms and for the JNE commissioners. The lawyer response rate is only about 10 percent. “We hope an electronic system will boost the response rate considerably,” said Woodland Hills attorney and JNE chair Alice Salvo.

While plans have been in the works for some time to switch to an all-electronic evaluation process, the Supreme Court asked the commission in April 2009 to move forward after it approved rule 9.70 of the California Rules of Court. Court Administrator Frederick Ohlrich suggested to Wolff that an online system “might offer a more efficient method for both sending confidential comment forms and receiving confidential answers to those forms.” The rule requires all members of the State Bar to provide an e-mail address to the bar. Most lawyers have complied with the requirement.

With an electronic format, JNE members believe lawyers can complete the comment form in two to 10 minutes with just a few clicks of the keyboard. As with the old form, there is a section for extra comments if desired.

“The JNE Commission is committed to providing thorough and fair evaluations of judicial candidates with a goal of helping the governor appoint the most highly qualified judges possible,” Salvo said. “We believe an electronic system can help us achieve that goal even better.”