Judicial Selection Process

You asked what is the process for selecting a judge, whether evaluations of judges may be disclosed to and used by legislators, and whether the Judicial Review Council shares information with the Judicial Selection Commission and the legislature.

There are three main entities involved in the nomination and appointment process for judges: the Judicial Selection Commission; the Office of the Governor; and the legislature. We have enclosed material our office prepared a few years ago that describes in great detail the judicial selection process. (We are in the process of turning this material into a formal report and will send it to you as soon as it is completed. ) We have also enclosed a report prepared by the Legislative Program Review and Investigations Committee in 2000 that also describes the judicial selection process in great detail.

By law, the Judicial Department must make evaluations of any judge available to the members of the Judiciary Committee before any public hearing on the judge’s nomination. Any information disclosed must be used by such members only for the purpose for which it was given and may not be disclosed to any other person (CGS § 2-40a).

The review council must submit to the Judicial Selection Commission, the governor's office, and the Judiciary Committee: (1) its recommendation about a judge seeking appointment to a different court or reappointment to the same court; and (2) reports about any complaint filed against a judge up for reappointment, the disposition of the complaint, and any investigation it conducted.

The Judicial Review Council investigates complaints against judges, workers’ compensation commissioners, and family support magistrates and makes recommendations regarding their reappointment and, in the case of judges, appointment to a different court. The council can admonish, censure, or suspend any of them for up to one year or recommend to the Supreme Court a longer suspension or removal from office.

Judges, commissioners, and magistrates can be disciplined for, among other things, prejudicial conduct, violation of ethics and financial rules, neglect or incompetence, failure to perform duties, conviction of a crime involving moral turpitude, or temperament adverse to justice.

The council consists of 12 regular members and 13 alternates appointed by the governor with the General Assembly’s approval. The 12 regular members are three judges, three attorneys, and six people who are neither. The alternates consist of judges, attorneys, and other people who serve when a regular council member is disqualified and compensation commission and family support magistrate members to serve when the council is considering complaints against commissioners or magistrates.

The council must investigate complaints and, if it finds probable cause, hold hearings. Its proceedings are, for the most part, confidential unless the subject of the investigation wants them public. But if the council finds probable cause and holds a hearing, it must be public. The accused official has a number of due process rights such as legal representation and the ability to present evidence and confront witnesses.

The main objective of the program is the “development and improvement of individual judges and the bench as a whole. ” By law, the judicial branch must provide the evaluation reports to the Judicial Selection Commission, the Office of the Governor, and the Judiciary Committee to assist the reappointment and elevation process (CGS § 2-40a).

The Judicial Department obtains evaluation information from questionnaires filled out by attorneys and jurors in certain specified circumstances. It gives questionnaires to attorneys after each major proceeding lasting over one hour. The areas of inquiry relate to demeanor, judicial management, and legal ability.

It also gives questionnaires to jurors who have entered the deliberation stage of a trial or who have participated in at least two days of trial. The focus of the juror surveys is on demeanor and judicial management.

When the questionnaires are returned to the judicial branch, the data are entered into an automated database. Under program guidelines, no report will be run unless a minimum of 25 attorney questionnaires have been returned for an individual judge. According to judicial staff, this is to ensure the anonymity of the attorneys and the statistical significance of the data provided. After the questionnaire data are entered in the database, the questionnaires are shredded; the judges never see them. The aggregated evaluation reports are issued every two and a half years. When a report is produced, the deputy chief court administrator meets with the specific judge to review the report results. A self-assessment form is sent to the judge along with the report prior to the meeting.

The Judicial Department summarizes the reports for ease of use by the Judicial Selection Commission and the Judiciary Committee. The results are summarized into four areas: Comportment; Legal Ability; Management Skills; and Attitude. The individual judge's results are compared to the results from all judges combined. The summary also shows the number of responses included in the report, along with the years the respondents have been in practice.

Since 1984, the Judicial Department has run a judicial evaluation program in which reports are periodically produced for individual judges. According to the legislature’s Program Review and Investigations Committee, it was an outgrowth of a 1983 project sponsored by the National Center for State Courts in which Connecticut was one of six participating states.

The Judicial Performance Evaluation Program furnishes attorneys and jurors who have appeared before Connecticut trial court judges, the opportunity to provide specific feedback on their courtroom performances. We took the following information directly from information provided to us by Deborah Fuller of the Judicial Department.

The main objectives of Connecticut's Judicial Performance Evaluation Program are the development and improvement of the individual judge and the bench as a whole. Important secondary goals include the use of the evaluation information to assist the chief court administrator in the assignment of judges and in the development of seminars and continuing judicial education programs.

Evaluation questionnaires are distributed to attorneys whenever a court proceeding has presented a meaningful opportunity to observe and evaluate a judge's performance. Such proceedings include full trials, partial trials in which the case settles after evidence is presented, mistrials, and hearings over one hour in length. When the proceeding is concluded, the court clerk provides a questionnaire to the lead attorney on each side of the case, either by handing it to the attorney at the end of the proceeding or sending it by mail immediately thereafter.

A cover letter indicating the case for which the questionnaire was distributed is attached to each questionnaire. The cover letter emphasizes the anonymity of the respondents and explains the uses made of the evaluation material. Only the judge's name and the court location are indicated on the questionnaire when it is given to the attorney. No further identifying data is on the form. Once the clerk has distributed the questionnaire, the clerk's office has no further contact with the questionnaire. It is incumbent upon the attorney to complete the questionnaire and return it in the envelope provided.

A separate questionnaire is distributed to all jurors who have entered the deliberation stage of a trial or who have participated in at least two days of a trial, regardless of whether the case entered the deliberation phase or their participation was as an alternate juror. The questions on the juror questionnaire focus on the judge’s demeanor and management of the trial itself. Similar to the attorney questionnaire, only the judge's name, court location, and nature of the case (civil or criminal) are indicated on the form when it is given to the juror. A stamped envelope addressed to the judicial evaluation administrator is provided to each juror for return of the questionnaire.

Protecting the anonymity of the questionnaire respondents has been a key component of the evaluation program from its inception. Safeguards are built into the system to protect the identities of the individual respondents. All questionnaires are returned directly to the program administrator in the central office. The administrator opens each envelope and replaces the judge’s name and the court location at the top of each questionnaire with designated codes prior to computer entry of the evaluation data by the program assistant. The evaluation information then becomes part of a large computer data file. After entry into the computer, the questionnaires themselves are destroyed. Throughout this process only the program administrator and one staff person, who is responsible for data entry, have access to the questionnaires. The judge never sees a completed questionnaire.

Once the questionnaires are processed, evaluation reports can be generated. Evaluation material is supplied to each judge as a composite report based on aggregate data. To assure the anonymity of the respondents, a minimum of 25 returned attorney questionnaires are required before a printout of the evaluation data may be generated. This minimum is strictly enforced and applies each time a report is produced. The chief court administrator is the only authority that may override this requirement.

Evaluation reports are provided to each of the judges on a regular basis. Within the confines of the minimum requirement of 25 returned attorney questionnaires, information is provided to newly appointed judges within 12 to 24 months of appointment, while subsequent printouts are provided every 24 to 30 months after the initial report.

Individual judges may also request summaries of their aggregate data at any time. The request must be in writing, addressed to the chief court administrator, and must specifically state its purpose. If the request is for purposes consistent with the program's objectives, it is then determined whether the minimum of 25 questionnaires has been returned since the last evaluation report was produced. This requirement ensures that there is sufficient data to provide meaningful information and to maintain the anonymity of the respondents. Since the primary goal of the program is the improvement and development of the judge, individual requests for evaluation data should be encouraged.

Each time an evaluation report is produced, the chief court administrator or his designee conducts an interview with the judge to aid in interpreting the data. These interviews address the individual judge's attorney and juror evaluation data and the corresponding composite data for the bench as a whole. Each judge is provided with all of the evaluation material prior to a scheduled evaluation interview.

In order to assist the judges in placing the attorney and juror responses in perspective and in assessing their own courtroom behaviors, a self-assessment questionnaire is sent to each judge with the evaluation printouts. These questionnaires provide the judges with a basis for comparison when reviewing the aggregate attorney and juror responses. The self-assessment questionnaire was developed for the judges' personal use and is not part of the official program evaluation.

In addition to disclosure to the judges, data gathered through the Judicial Performance Evaluation Program is statutorily required to be released in two other situations. The Judicial Selection Commission is statutorily authorized to request evaluation data (CGS § 2-40a). The commission uses the data in discharging its responsibility to recommend judges for reappointment and for elevation to a higher court. The same statute provides for the legislature’s Judiciary Committee to receive the evaluation data, again as part of the reappointment process. According to the Judicial Department, the chief court administrator must authorize release of program data under either circumstance.

Day-to-day administration of the program is the responsibility of the program administrator. The administrator must also monitor developments in the evaluation programs of other states.

The law contains a finding by the General Assembly that for the impartial and effective administration of justice:

1. the continued independence of the judiciary is indispensable,

2. it is in the public interest to foster its dignity and integrity,

3. to accomplish these goals appropriate mechanisms and procedures for maintaining judicial discipline should be established, and

4. unpopular or erroneous decisions are not a ground for discipline or a finding of a lack of judicial integrity (CGS § 51-51g).

The law concerning the removal, suspension, and censure of judges (Chapter 872a) applies to all judges of the Superior Court, Appellate Court, Supreme Court, retired judges (senior judges and state referees), workers compensation commissioners, and family support magistrates (CGS § 51-51h).

Other than impeachment (for a judge) or removal by the governor for cause (for a compensation commissioner or family support magistrate) all three are subject to censure, suspension, or removal from office (CGS § 51-51i). An official can be disciplined for

1. conduct prejudicial to the impartial and effective administration of justice which brings the office into disrepute;

2. a willful violation of the canons of judicial ethics, the cannon of ethics for compensation commissioners, or the law prohibiting judges from using their office to obtain financial gain for themselves, close family members, or a business they are associated with;

3. willful and persistent failure to perform his duties;

4. neglectful or incompetent performance of his duties;

5. final conviction of a felony or misdemeanor involving moral turpitude;

6. disbarment or suspension as an attorney;

7. willful failure to file a financial statement or the filing of a fraudulent financial statement (this does not apply to a compensation commissioner); or

8. temperament adversely affecting the orderly carriage of justice.

The Supreme Court can remove or suspend a judge or family support magistrate for any period of time upon a recommendation from the Judicial Review Council or on its own motion (CGS § 51-51j). If the council has not investigated or held a hearing, the Supreme Court must do so. If a member of the Supreme Court is the subject of the complaint, he is disqualified from the investigation, hearing, and decision. A hearing is confidential unless the subject asks that it be public. A decision to remove a judge or family support magistrate must be made by a unanimous full Court (five to seven members) and a decision to suspend one by majority vote of a full Court.

The council is made up of 12 members and 13 alternates, all appointed by the governor with the approval of the General Assembly (CGS § 51-51k). The 12 members consist of:

1. three Superior Court judges who are not Supreme Court judges and who are selected from a list of six judges selected by the members of the Superior Court,

2. three attorneys who practice in this state, and

3. six people who are not judges or attorneys.

1. two Superior Court judges who are not Supreme Court judges and who are selected from a list of four judges selected by the members of the Superior Court,

2. two attorneys who practice in this state,

3. three people who are not judges or attorneys,

4. three workers’ compensation commissioners, and

5. three family support magistrates.

The first three categories of alternates serve at probable cause and public hearings in place of the appropriate category of a regular member who is absent or disqualified, as designated by the council’s executive director. A compensation commissioner or family support magistrate alternate, as designated by the executive director, serves in place of one of the judges when the investigation or complaint involves a compensation commissioner or family support magistrate respectively.

Regular council members serve four-year terms and can continue in office until a successor is appointed and qualified. No member can serve consecutive terms or more than two terms, and attorney members who belong to a law firm cannot be consecutively followed by another member of their firm. Vacancies can be filled for the un-expired portion of any term in the same manner as the original. Judges, compensation commissioners, and family support magistrates who retire automatically cease to be members of the council and a vacancy occurs. Alternate members serve three-year terms and cannot serve consecutive terms as alternate members.

Other than judges, compensation commissioners, and family support magistrates, no council member can (1) hold elective or appointed positions with the state or federal government, (2) be a selectman or chief executive officer in any municipality, (3) be an employee of the Judicial Branch or the Workers’ Compensation Commission, or (4) be a member of a national or state central committee or a chairman of any political party.

The council must employ an executive director and other necessary staff, and the Public Works Department must provide it office space (CGS § 51-51k). The director can investigate complaints about judges, compensation commissioners, and family support magistrates and present evidence to the council.

The council must prepare a concise plain-language brochure to inform the public about the council’s purpose, authority, jurisdiction, and process. The brochures must be distributed to all court administrative offices and to anyone who files a complaint.

Annually, by September 1^st the council must submit to the governor, the Judicial Branch, the Judiciary Committee, and the Superior Court judges a report of its activities for the prior fiscal year. The report must

include the number of complaints received, the number where probable cause was found, and the number of each type of disposition, including dismissals and admonishments.

The council must adopt regulations establishing rules and procedures for discharging its duties. They must include standards for identifying and treating conflicts of interest for council members, and they must require that any professional or ethical codes must apply to professional members of the council who are subject to these codes of conduct.

Members of the council do not receive compensation except for necessary expenses (CGS § 51-51t). The council may apply for and use federal and private grant money.

Investigation of Judges’, Compensation Commissioners’, or Family Support Magistrates’ Conduct

Complaints against judges, compensation commissioners, and family support magistrates must be brought within one year of when the alleged conduct occurred, was discovered, or should have been discovered with reasonable care (CGS § 51-51l). But any complaint must be brought within three years of when the conduct occurred.

The council must investigate every written complaint it receives, subject to the statute-of-limitation rules described above. It may initiate an investigation whenever (1) it has reason to believe prohibited conduct has occurred or (2) previous complaints indicate a pattern of behavior that would lead to a reasonable belief that prohibited conduct has occurred.

The council must notify the complainant within five days of receiving a complaint. Within five days of initiating an investigation the council must notify the subject of it by certified or registered mail, including a copy of the complaint. Probable cause investigations are confidential except that the subject of the investigation can request disclosure, and information obtained independently of the investigation is not confidential. The subject of the investigation has the right to appear, be represented by counsel, question witnesses, and offer information to clear himself. The council can request, and the court must provide, records or transcripts of court proceedings.

Within three business days of ending the investigation the council must notify the complainant and the subject of the results. If the council finds that prohibited conduct has not occurred but that the subject has acted in a manner giving the appearance of impropriety or that is an “unfavorable judicial or magisterial practice,” it can issue an admonishment to the subject recommending a change his conduct or practice. The complainant must be informed if any admonishment resulting from his complaint is issued, but its substance remains confidential.

If the preliminary investigation indicates probable cause that the subject of the complaint is guilty of the misconduct, the council must hold an open hearing. A subject appearing at the hearing can have counsel, present evidence, and cross-examine witnesses. The council must record the proceedings and publish its findings and explanatory memorandums within 30 days of closing the hearing.

The council may subpoena witnesses and documents such as books and papers that are relevant to its inquiry or investigation (CGS § 51-51o). In carrying out its investigation, the council can use the services of the State Police, the Department of Mental Health and Addiction Services, and other state agencies, but not the Division of Criminal Justice.

Any judge, compensation commissioner, or family support magistrate who is the subject of a council investigation may request that the complaint, investigation, and disposition be open to the public. (CGS § 51-51l).

When a complaint is pending before the council within the final year of the subject’s term of office, the council must designate the complaint to be privileged and expedite the investigation and hearing. This must be done so that the council can meet its responsibility to comment on judicial reappointments to the Judicial Selection Commission and the governor.

1. publicly censure the subject;

2. suspend the subject for up to one year;

3. refer the matter to the Supreme Court recommending a longer suspension;

4. refer the matter to the Supreme Court recommending removal from office, or to the governor if the matter involves a compensation commissioner; or

5. exonerate the subject of all charges (CGS § 51-51n).

The council may act by a majority vote of the members present and voting (CGS § 51-51m). But all 12 members must be present and at least seven must affirmatively vote to publicly censure or suspend an official or to recommend that the Supreme Court suspend one for over a year or remove him from office (in the case of a compensation commissioner, the recommendation is that the governor remove him from office). The council must make its findings in writing, and they must be compiled and indexed.

If public censure is recommended, the chairman of the council must prepare and forward the censure to the official being censured, the chief justice, the chief court administrator, and the Judiciary Committee at least 10 days before its publication.

Appointment and Reappointment of Judges, Compensation Commissioners, and Family Support Magistrates

The council must make recommendations concerning the appointment of any judge to a different court or for the reappointment of any judge, including in those recommendations any investigation or complaint filed against the judge and its disposition (CGS § 51-51q). This report and recommendation must go to the governor, the Judicial Selection Commission, and the Judiciary Committee. Reports concerning reappointment of family support magistrates go to the governor and those for compensation commissioners to the governor and the Judiciary Committee. The Judicial Selection Commission cannot consider in its decision any investigation that exonerates a judge.

The council must make its complaint files available to the chairmen and ranking members of the Judiciary Committee. If the council believes any judge is guilty of prohibited conduct, material neglect of duty, or incompetence, it may refuse to recommend the judge for reappointment or appointment to another court. The council cannot recommend a judge for reappointment or appointment to another court if it finds he

has been convicted of a felony or misdemeanor involving moral turpitude or willfully used his office to obtain financial gain for himself, close family members, or a business he is associated with.

If a complaint cannot be resolved by the council before an official’s term expires, the council cannot refuse to recommend reappointment based on that complaint. But it must report the fact of the complaint to the governor and Judiciary Committee.


January 26, 2005		2005-R-0121
JUDICIAL SELECTION PROCESS

By: George Coppolo, Chief Attorney