On your ballot this fall, you’ll see some judges in contested elections, and others up for what’s called judicial retention. That’s because after a judge is appointed, they must run in a partisan election. After their first term, in order to stay on the bench, they just need 57% of voters to approve. For voters unsure of whether to check ‘yes’ or ‘no’ on a judge, the volunteer Judicial Performance Evaluation Commission (JPEC) was charged by the state Supreme Court to make recommendations on judicial retention. JPEC vice chair and retired district judge Jim Hall says the panel evaluates each judge in four major areas.
JIM HALL: One is legal ability; the second is fairness; the third is communication skills; and the fourth category includes preparation, attentiveness, temperament and control over the proceedings.
KUNM: What steps are involved in the evaluation process?
HALL: First, we send out surveys to people who regularly appear in a judge's courtroom, and these surveys are all anonymous. We also collect statistical data about how many cases the judge handles, how quickly they handle them. For some judges, we will send an observer to go watch them in court and report back to us. Unfortunately, we don't have enough funding to do that with every judge. We typically do that with judges that may be having difficulty with their judicial performance or that are potentially a ‘do not retain’ recommendation. Those are the ones that typically have courtroom observations. And then finally, the judge comes in for an interview.
KUNM: In terms of the surveys, you survey individuals who have been in contact with the judge including attorneys, court staff, jurors, and resource staff like law enforcement officers and interpreters. So, how are those individuals selected?
HALL: For example, the lawyers: we can target the lawyers that have cases in front of that judge. Court staff we allow to evaluate any of the judges within the court, understanding that anyone who gets a survey can also say, ‘I just don't have enough information to respond.’ For the resource staff, those go out more generally. So, for example, law enforcement would have an opportunity to rate a judge if they choose to.
KUNM: What questions are asked in the surveys?
HALL: The way we do it is affirmative statements. So, it would say, ‘Judge Smith is knowledgeable about substantive aspects of the law,’ ‘Judge Hall demonstrates appropriate demeanor in the courtroom.’ And then the respondent either agrees or disagrees on a five point scale. At the end, there is a statement as to ‘should this judge be retained?’
KUNM: The Commission made three ‘do not retain’ recommendations for District Court judges on this year's ballot. Can you talk about those recommendations, and why they were made?
HALL: There's a natural tendency to focus on the ‘do not retain’ recommendations, and obviously we feel that the voters should look at all of our recommendations, including the retain ones, as well. The best way for voters to understand that is to go to our website. It lays out why JPEC reached the result that it did. We take these decisions very, very seriously. We certainly are not out to find judges to recommend ‘do not retain.’ For us, that sort of the last result. And importantly, we conduct – midway through the judge’s term – an interim evaluation, which is confidential and private. Not showing improvement from a poor interim evaluation is probably the biggest factor that leads to a ‘do not retain’ recommendation. And then, when we see judges that do not score well for displaying fairness and impartiality, that is often a very important factor.
KUNM: What happens to a judge’s position if voters decide not to retain them?
HALL: It creates a vacancy on the bench. And then there's a committee that reviews applicants, and then the governor makes the appointment. And if I could just say something about that that I think is really important – there are some voters who vote ‘no’ on every single judge. I don't think that's the right approach. If enough people just voted ‘no’ as to every judge, the governor would simply be reappointing new judges all the way through. And I'm not sure that's the best way to move forward.
KUNM: Why should voters care who’s sitting on the bench?
HALL: People should care because if they become a party to a court case, they want someone who’s going to hear the case fairly and decide it based on the law. But even broader than that, you know, judges make decisions that affect our community. And that’s, I think, why voters should pay attention to these races and hopefully make good decisions as to who should be retained.
Early voting is underway in New Mexico until Oct. 31, 2020. The Secretary of State’s office recommends mail-in ballots be sent by Oct. 27, 2020. Learn more at NMvote.org.