Chapter V

Findings and Recommendations

Introduction

This chapter contains the program review committee findings and recommendations, and begins with changes the program review committee chose not to recommend. These paths not taken are discussed briefly to highlight how different Connecticut's judicial selection and retention process is from other jurisdictions.

Lifetime tenure. That all judges in Connecticut serve for eight-year terms, and thus must be reappointed to continue as judges, will always pose the potential for conflict with the theory of judicial independence. Judicial independence essentially means judges should make decisions based on the law and evidence, not popular opinion. Popular opinion is a significant influence on the legislative and executive branches, but is not supposed to factor in judicial decisions.

Lifetime tenure is intended to promote judicial independence. As noted above, the federal government, and only three states, provide lifetime tenure (or until age 70) for their judges.¹ Impeachment from office is the singular removal tool.

Even with lifetime tenure, much of the debate in recent years about attacks on judicial independence has been in relation to the federal judiciary. During the 1996 presidential election, a decision of a federal judge to exclude evidence in a criminal trial because of the way it was obtained was the focus of both major party candidates, and prompted calls for the judge's resignation or impeachment. Life tenure notwithstanding, it is suggested that federal trial court judges who aspire to move up to the appellate courts, and thus go through the nomination and advice and consent process again, might anticipate political criticism of decisions.

The majority of states have chosen to not give judges lifetime tenure, but have terms of office requiring some form of reselection or retention method. Compared to the length of legislative or gubernatorial terms of office, judicial

terms are generally longer, providing some political insulation.² To the extent Connecticut judges are apprehensive about the reappointment process, lifetime tenure would certainly alleviate those concerns. However, Connecticut history has not shown rampant trampling of judicial independence in the form of rejected nominations for reappointment, and the constitutional eight-year term requiring periodic review is ingrained as a method of accountability.

Elections. At the state level, much of the debate about judicial accountability versus independence focuses on the fact judges in most states must go through some form of election to be retained. Even where the election is a retention election -- meaning where the voters vote yes or no on a judge, not between candidates -- campaigns can be mounted against judges. There are two concerns: 1) the act of a judge having to campaign and raise money to campaign flying in the face of the perception of no bias; and 2) when an opposition campaign focuses on a specific decision a judge made.

Connecticut is in the minority of states that do not use some form of election to appoint and reappoint judges, and the committee makes no recommendation for change. Interestingly, the same issues about what information is available to the electorate to make informed decisions about judges in election states are raised in Connecticut with respect to the legislature. Connecticut can take advantage of the fact that providing information to 187 legislators is an easier task than distributing it to voters at large.

Assuming then the status quo of eight-year terms for judges and a legislative versus electorate role in reappointments, it is clear the tension between judicial accountability and judicial independence is not going away for the Connecticut General Assembly. The goal should be to achieve the best balance between the two concepts as possible.

Standards for Legislature

The program review committee reviewed the handful of other states that involve their legislatures (or parts thereof) in the confirmation or appointment of judges; none were found to use articulated standards or criteria. As noted in the briefing report, some components of the judicial selection process in Connecticut are currently subject to statutory and regulatory standards. Specifically, these are the two appointed panels with roles in the selection process: the Judicial Selection Commission and the Judicial Review Council. The Judicial Selection Commission is directed by statute to consider "legal ability, competence, integrity, character, and temperament of such judges, and any other relevant information concerning such judge." Also, there is a statutory presumption of retention. Mandated regulation further describes criteria for both new candidates and incumbent judges. (Chapter III set out these regulations in detail.)

The Judicial Review Council, charged with handling misconduct complaints, is primarily a source of information for the judicial reselection process. All complaints and their resolutions are required to be given to the Judicial Selection Commission and the Judiciary Committee. The council has a roster of statutory elements listing conduct for which judges can be disciplined. The General Assembly, when establishing the review council, codified a declaration of intent for the laws for the agency that is pertinent to the judicial selection process:

1. The general assembly finds that for the impartial and effective administration of justice in this state:

2. the continued independence of the judiciary is indispensable,

3. it is in the public interest to foster the dignity and integrity of the judiciary,

4. to the foregoing ends it is desirable to establish appropriate mechanisms and procedures for the maintenance of judicial discipline, and

5. the mere making of unpopular or erroneous decisions is not a ground for judicial discipline or for a finding of want of judicial integrity.³

The two components of the process without any constitutional, statutory, or regulatory standards are the governor and the legislature. There is one very basic distinction between the two appointed panels and the governor and the legislature that explains the difference -- the latter two are directly accountable to the electorate. Theoretically, the governor and legislature make decisions based on a combination of factors, including public and personal opinion. The ultimate check on those decisions is reelection. In contrast, for decision-making bodies removed from electoral accountability, it is necessary to have policy guidance.

Given the above, the program review committee does not easily proscribe the activity of an entity that is at its very heart political and responsive ultimately to voters. In this case, however, the activity in question directly relates to the core functions of the judicial branch of government, which operates out of a different, non-majoritarian ethic. The program review committee finds the appointment of judges is substantially different from other decisions made by the legislature - because it is the selection of public officials for the third, the judicial, branch of government, whose decisions are to be based on law and evidence, not popular opinion.

Thus the program review committee believes it would be useful for the legislature to have basic, articulated criteria against which to consider judges. The committee recommends that C.G.S. Sec. 2-40(a), related to the Judiciary Committee, be amended as follows (the bolded language is the recommended change):

Each nomination made by the Governor to the General Assembly for the Chief Justice or a judge of the Supreme Court, Appellate Court or Superior Court shall be referred, without debate, to the committee on the judiciary, which shall report thereon within thirty legislative days from the time of reference, but no later than seven legislative days before the adjourning of the General Assembly. FOR NOMINATIONS OF INCUMBENT JUDGES FOR REAPPOINTMENT TO THE SAME COURT, THE COMMITTEE ON THE JUDICIARY SHALL CONSIDER THE LEGAL ABILITY, COMPETENCE, INTEGRITY, CHARACTER, AND TEMPERAMENT OF SUCH JUDGES, AND ANY OTHER RELEVANT INFORMATION CONCERNING SUCH JUDGES. THE MERE MAKING OF UNPOPULAR OR ERRONEOUS DECISIONS SHALL NOT BE A GROUND TO REJECT A NOMINEE FOR REAPPOINTMENT.

The same language is recommended to amend the statute addressing the House and Senate votes on judicial nominations. Thus, C.G.S. Sec. 2-42 should be amended as follows (the bolded language is the recommended change):

Each appointment of the Chief Justice or a judge of the Supreme Court, Appellate Court or Superior Court shall be by concurrent resolution. The action on the passage of each such resolution in the House and in the Senate shall be taken on the electrical roll-call device. No resolution shall contain the name of more than one nominee. FOR NOMINATIONS OF INCUMBENT JUDGES FOR REAPPOINTMENT TO THE SAME COURT, THE HOUSE AND THE SENATE SHALL EACH CONSIDER THE LEGAL ABILITY, COMPETENCE, INTEGRITY, CHARACTER, AND TEMPERAMENT OF SUCH JUDGES, AND ANY OTHER RELEVANT INFORMATION CONCERNING SUCH JUDGES. THE MERE MAKING OF UNPOPULAR OR ERRONEOUS DECISIONS SHALL NOT BE A GROUND TO REJECT A NOMINEE FOR REAPPOINTMENT.

The listing of considerations is taken directly from the statutory criteria guiding the Judicial Selection Commission. The criteria set out the areas in which a judge's performance is important, as recognized by the legislature already, following American Bar Association guidelines. Having these criteria guiding the legislature, and stated in statute, could help focus its inquiry.

The language about unpopular or erroneous decisions is taken from the Judicial Review Council statute, connected to the legislative finding of the importance of judicial independence. There appears to be general consensus based on a reading of judiciary committee transcripts that it is not appropriate to make reappointment decisions on the sole basis of unpopular or erroneous decisions. This language would not make it impossible to reject a judge for reappointment. For example, if it was determined that an unpopular decision was made because the judge stood to financially gain from the decision, that breach of integrity and character could be the basis for rejection. Further, this language does not prohibit legislators from asking for case-specific explanations, and even being critical of any case decisions.

Another provision in the Judicial Selection Commission statutes is the presumption of retention for incumbent judges seeking reappointment to the same office. The program review committee does not recommend adding this to the legislative statutes because of the specific term requirement in the state constitution.

Information

The committee finds there is considerable information available to the Judiciary Committee about incumbent judges. The information available to the Judiciary Committee and the Judicial Selection Commission is similar in many respects. Table V-1 compares some key sources of information for the two entities.

There are, however, varying degrees of awareness among Judiciary Committee members about what information is actually available to the Judiciary Committee. For example, evident during the study was not all Judiciary Committee members were aware of the existence of the judicial evaluation report, a key source of performance information produced by the judicial department. The recommendations in this section are intended to enhance information available to the legislature.

Judicial evaluation reports. The judicial evaluation reports are aggregated survey results from attorneys and jurors who have been exposed to specific judges during a certain period of time. (The judicial department reports a 60 percent return rate for the surveys.) The reports are compiled every 2 ½ years, for review by the chief court administrator and the judge. There can be up to four reports covering an eight-year term of a judge given to JSC and the Judiciary Committee.

The Judicial Department knows the evaluation reports can be improved. One main gap is the ability to measure courtroom performance in the so-called high volume or G.A. courts, where a judge might handle over 200 cases in a day. The Judicial Department has tried to develop a method of getting anonymous feedback from lawyers at the high volume courts, but so far has been thwarted by the difficulty in consistently identifying lawyers appearing before a judge in any given three-month period. The Judicial Performance Evaluation Advisory Panel, the judicial department, and the Judges' Association are all continuing to work on developing a method to measure performance in all courts. Capturing feedback on the high volume courts is critical to providing full performance information for the reappointment process.

At the program review committee's public hearing, concern was expressed about a perception among lawyers that their survey responses really weren't confidential, and that somehow judges saw them and knew who had filled them out. It was thought this belief contributed to the 40 percent non-response rate and raised questions about the candor of the returned surveys. The program review committee is aware of the efforts made by the Judicial Department and the Connecticut Bar Association to get the word out that the surveys are in fact handled in a very secure way. However, to improve the program, the program review committee recommends the Judicial Department use an independent entity to administer at least the lawyer survey part of the judicial evaluation program, which shall supply the Judicial Department with statistical compilations on a quarterly basis. Also, the Judicial Department, with the Judicial Performance Advisory Panel, shall continue to aggressively search for other ways to improve the judicial evaluation program, including but not limited to seeking input from other persons familiar with judicial performance such as court personnel. The Judicial Department shall report annually on January 15 to the Judiciary Committee and the Program Review and Investigations Committee about steps taken to improve the program.

The purpose of requiring an independent entity to administer at least the lawyer survey part of the program is to promote confidence on the part of lawyers being asked to fill out the surveys that their responses remain anonymous.

Biennual forum. The program review committee finds the information available to the Judiciary Committee and the legislature about judges needs to be put in the context of judicial activity. The practicing lawyers in the General Assembly may feel more comfortable assessing judges because they are more familiar with what judges do, but the rest of the Judiciary Committee and the legislature as a whole do not necessarily have the same understanding. There is widespread discussion in judicial selection literature that at the root of many of the problems arising in the context of judicial reappointments is the need for continuing public education about the role of judges. For example, unpopular decisions can be made based on legally correct procedural rules that apply in a particular case. The program review committee recommends the Judiciary Committee should at least biennually, at the beginning of each two-year legislative term, host a seminar to which all members of the Judiciary Committee, particularly new ones, and all other legislators are invited. Representatives of the Judicial Department, the Judges Association, the Judicial Selection Commission, and the Judicial Review Council shall attend and make presentations about their part in the judicial selection process and discuss common areas of misunderstanding about judicial activity.

For example, the Judicial Department could explain the benefit of the judicial evaluation reports and what they can portray about a judge. This could also be an opportunity to discuss how judges are rotated, and the types of caseloads to which they are exposed. The selection commission presentation could serve as a reminder of what the commission does, including how it fulfills all of its statutory and regulatory requirements.

Judicial Selection Commission. As the table above shows, and as described earlier, the Judicial Selection Commission and the Judiciary Committee have access to much of the same information. At the program review committee's public hearing, it recognized there was some overlap of effort by the commission and the Judiciary Committee in carrying out their functions. A significant difference between the two, however, is the work of the selection commission is performed confidentially by statute. At the program review committee public hearing, the Judicial Selection Commission chairman repeatedly emphasized the importance of confidentiality to getting candid feedback on new candidates and judges. A concern was also expressed at the public hearing the selection commission might obtain more information because of its confidential status.

To the extent there is legislative trust in the merit focus and comprehensiveness of the selection commission process, the fact a nominee survived that process to appear before the legislature is meaningful. However, it would be useful for the legislature to access in part the specific efforts of the commission, acknowledging the need for continued confidentiality of sources. The program review committee recommends the statutes be amended to allow, upon the request of the Judiciary Committee in regard to a particular case or controversy related to an incumbent judge nominated for reappointment, the Judicial Selection Commission to inform the committee whether the commission considered the case or controversy and if so, to explain why the specific case or controversy did not cause it to reject the incumbent judge for recommendation for reappointment to the same court. In so doing, the commission shall not identify any confidential sources of information.

Finally, even though this study did not focus on the Judicial Selection Commission, an issue that surfaced at the program review committee's public hearing was that while the JRC is required to publish notices in legal journals about its upcoming evaluations of judges up for reappointment, there is no similar provision to inform the general public. To further the interest of gathering early and full information about a judge and identifying any issues that might be festering, the program review committee recommends the Judicial Selection Commission as part of its review process publish notices soliciting input from the public about judges in newspapers of general circulation.

Time Frame for Legislative Process

During this review, the committee identified concern about the adequacy of time available to the legislature to consider judges, especially when confronted with some controversy. Through a combination of constitutional and statutory requirements, the legislature has a relatively short time frame in which to consider judicial nominations, especially judges nominated for reappointment to the same court, who have track records to potentially consider.

First, the legislature must be in session to appoint judges. (The sessions, of course, are limited to January to June in odd years and February to May in even years.) The constitution sets eight-year terms for judges, which has always been interpreted to mean an absolute period of time, with a definitive expiration date.

The governor traditionally submits his or her nominations during the first few days of a legislative session. The statutes require a nomination to go directly to the Judiciary Committee, which must report on the nomination within 30 days. In practice, resolutions for new nominees for judgeships are considered by the full legislature early in a session, in large part to take advantage of the open calendar. Eight years later, when these judges are up for reappointment, their term expiration dates are likewise early in the session, with their nominations made by the governor at the beginning of the session. Using the 2001 session as an example, four judges' terms expire 2/2/01; six judges' terms expire 2/12/01; and eight judges' terms expire 2/16/01.

In most cases, judicial nominations are noncontroversial, and so the limited time does not seem to pose any problem. A review of Judiciary Committee reappointment hearings over the past nine years shows incumbent judges seeking reappointment to the same court are often asked very few questions by the committee members. However, when controversy arises about a judge, timing can be a problem.

Since the time frame was established years ago, some significant changes have taken place impacting judicial selection. Incrementally, the number of judges increased over the years, increasing the sheer volume of nominations before the Judiciary Committee and full legislature. Further, the complexities of what judges do have multiplied, widening the potential for criticism about their actions. For example, in criminal cases, with heightened public sensitivity about criminal sentencing, judges are faced with operating under mandatory and automatic sentencing statutes while also still exercising traditional judicial discretion.

Another change affecting judges, along with other actors in the criminal process, is what is known as the "victim rights movement." In 1996, the state constitution was amended to provide victims in all criminal proceedings with certain rights, including among others: 1) the right to be treated with fairness and respect throughout the criminal justice process; 2) the right to attend the trial and all other court proceedings the accused has the right to attend, unless the person is to testify and the court determines the person's testimony would be materially affected if the person hears other testimony; and 3) the right to make a statement at sentencing. A victim who believes he or she has not been treated fairly is a likely critic of a judge up for reappointment. The legislature, however, must sort out the concerns of any victims and balance them against the parameters within which judges work.

Victim treatment can come up as an issue for new nominees for judgeships also. In early November 2000, at a Judiciary Committee hearing on interim judicial nominations, a witness planned to testify against a nominee who was a prosecutor. The problem involved the perceived mistreatment by the prosecutor of the family of a person who died in a manner the family thought involved criminal liability on the part of a third person, which was in disagreement with the state's position. The witness withdrew his objection after meeting with one of the Judiciary Committee co-chairs and the candidate during the hearing on other candidates.

On the other hand, it could be argued the creation of the Judicial Selection Commission in 1986 streamlines the legislative effort, even though its purpose is to screen candidates for recommendation to the governor. The commission operates under statutory requirements, including statutory criteria and a presumption of retention for incumbent judges. The legislature is represented on the commission via legislative appointees, who work with gubernatorial appointees. It would be reasonable for the legislature, in carrying out its role, to attach significance to the fact any nominee before them (new or incumbent judge) has been through the merit-based commission process. As a Judiciary Committee cochairman noted at a hearing to consider new nominees in 1998:

Just a brief explanation of our process here...I think the committee acknowledges that there is a very detailed process for which judicial nominees must go before their names are submitted here. The Judicial Selection Commission and the screening process employed by legislative leadership and the Governor. I know it's quite extensive so don't be offended if you're not asked a million questions here...Basically we assume that everyone who gets here is more than qualified and has appropriate judicial temperament, etc., but there will be some questions on a variety of topics... ⁴

Despite the selection commission, though, the legislature retains a constitutional role that is separate and distinct. Seen in the context of the majority of states, Connecticut legislators are acting directly as representatives of the electorate. And the legislative portion of the process is the only part of the judicial selection process that operates in public. It is the Judiciary Committee that holds public hearings on judges; it is the House and Senate that hold public debates on judges when making appointment decisions.

Given the factors noted above impacting the time frame, and the importance of the legislative appointment function, the program review committee believes it would be useful to build in more time in the event of future controversy.

Currently, C.G.S. Sec. 4-2 provides:

Except as otherwise provided by law, all nominations to be made by the Governor for appointment to office by the general assembly or either branch thereof, and all appointments to office to be made by the Governor which require the advice and consent of the General Assembly or either branch thereof, shall be made on or before May first of the year in which the general assembly is in session ...

The program review committee recommends the statutes be amended to require the governor to make his or her judicial renominations sooner. Specifically, the judicial appointment statute should be amended as follows:

NEW The Governor shall nominate incumbent judges for reappointment to the same court by November 10 of the year preceding the legislative session in which the judge's term expires. The judiciary committee shall hold public hearings on such nominations no later than 30 days before the expiration of each judge's term. Notice of these public hearings shall be made in newspapers of general circulation and legal journals at least 15 days before the hearings, and mailed to every legislator.

The legislature would still need to formally act on the judge during the legislative session. The benefit of this early hearing would be if people came forward at this point with issues about a judge, there would be time for the judge to respond, and for legislative staff to do some independent review and investigation. This could include looking at court transcripts and reading case decisions. The governor should be able to make his or her nominations for reappointments by early November, as the Judicial Selection Commission is finished with its evaluations by then.

A potential problem with this option is every four years, the governor who would nominate judges for reappointment in November might not be the same governor taking office in January. However, the experience in Connecticut, especially since the establishment of the Judicial Selection Commission, is governors usually renominate incumbent judges. It should also be remembered the Judiciary Committee frequently meets now during the interim to consider interim nominations made by the governor for new judges.

¹ Indeed, from 1818 to 1856, the Connecticut constitution also provided tenure until age 70 for good behavior.

² Initial terms of office: One state (14 years), four states (12 years), seven states (10 years), seven states (8 years), two states (seven years), ten states (6 years), four states (3 years), three states (2 years), six states (one year). Blueprint for the Future of Judicial Selection Reform, Pennsylvanians for Modern Courts, July 1999, reprinted in ABA Judicial Selection in the States: Not Just Politics as Usual, July 2000

³ C.G.S. Sec. 51-51g

⁴ Judiciary Committee Co-Chairman Rep. Michael Lawlor, Judiciary Committee Public Hearing 8/31/98

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