By Rep. Bob Rowe

In this next session of the Legislature there will be two pieces of legislation on the subject of performance reviews for judges. The first is a constitutional amendment (CACR 11) relating to the election of judges. The second is House Bill 344 which calls for the establishment of a citizen’s commission to conduct performance reviews for each judge.

Both the bill and constitutional amendment will allow citizens to evaluate New Hampshire judges as is the case for other New Hampshire elected or appointed officials.

Citizens evaluate elected officials every two years with their ballot. Executive branch department heads are appointed for a term of years, and each is reviewed by the governor and Executive Council prior to a reappointment. But there is no citizen review, or any meaningful performance review for that matter, for judges. They are appointed for life, but must retire at 70 years of age. If a judge’s job performance is bad there is no way to remove the judge except by impeachment or address instituted by the Legislature, and this process is lengthy and expensive.

Forty-seven states elect their judges; New Hampshire is one of only three states that appoint judges for life. The other two are Massachusetts and Rhode Island. In 47 states citizens have a voice in allowing an individual judge to remain in office. Prior to an election in these states, there is an extensive performance analysis of each judge that is scheduled for an election; the citizens decide if the judge should be retained in office.

In fairness and full disclosure, our judicial branch does conduct performance reviews of judges every three years. However, the review is far from adequate.

First, the results are private; judges are reviewed as a group of up to 25, and there is no mention of the results for a specific judge.

Second, the review process is flawed by an inadequate survey process. Consider if a judge has 1,000 cases a year; in three years there is the opportunity for both side of each case to report on the judges’ performance, which means 6,000 responses are possible.

In a 2008 report the judicial branch reviewed 25 judges. Only 828 performance review questionnaires were returned — an average of 33 per judge. Calculate the returned questionnaires based on 6,000 possible responses in the prior three years — this would be a response rate of only 0.6 percent: wholly inadequate. And we don’t know the performance of a specific judge, only the average for a group of 25 unnamed judges.

Even more troubling, it was reported that two-thirds of the citizens who come before a judge without being represented by an attorney found that the judge was not fair and impartial to each side in a case.

As a retired lawyer and member of the bar for more than 40 years, I can testify that our judges are of the highest quality, but so are elected and appointed department heads and they are reviewed by name. So why not judges?

But the public as a whole does not share my opinion as to excellence. This is another reason for performance reviews for judges, if only to change this public perception.

I suggest that any one of the following be adopted. They are listed in order of the cost or complexity.

I recommend that the Judicial Branch improve its current evaluation process, by adding members of the public and the Legislature to the evaluation committee; don’t keep secret the results for named judges; and improve the process so that the results are statistically valid.

A bill can be passed to mandate that each judge come before the governor and Executive Council for a public review hearing, say, every five years. This would cost little and provide the public an opportunity to comment on a specific judge.

Pass House Bill 344 and establish a citizens commission for the evaluation of judges. Put citizens, lawyers, legislators and judges on the commission. Make the process and results open to public review. Unfortunately this would be the most costly of the options.

Pass the Constitutional amendment, and give the citizens a voice to determine if they can elect a judge. Forty seven states have an elected judiciary, and none report a scarcity of willing applicants. And prior to each election, the state provides the voter information as to the judicial candidate.

I, for one, would prefer the first two options in that they would retain a non political judiciary, and the cost of the options would be slight.