Rules
Rules Governing the
Kansas Commission on Judicial Performance
- General
Comment
- Rule 1. Definitions and Computation of Time
- Rule 2. Commission
- Members
- Goals
- Duties
- Internal
Operating Procedures
- Required
Disclosures and Prohibitions
- Removal
for Cause
- Staff
- Rule
3. Confidentiality
- Rule
4. Duty of Judges
- Rule
5. Performance Standards
- Rule
6. Sources of Information
- Mandatory
- Questionnaires
- Self-evaluations
- Discretionary
- Statistics and Public Records
- Interviews
- Written Information About Judges
- Courtroom
observation
- Written
opinions
- Other
information
- Rule
7. Self-Improvement Plans
- Rule
8. Compilation of Judicial Performance Evaluation Data
- Rule
9. Judicial Performance Evaluation Report
- Rule
10. Narrative Profiles
- Preparation
- Contents
- Rule 11. Retention Recommendation
- Rule
12. Survey Results
- Rule 13. Survey Comments
- Rule 14. Dissemination
of Information
- All Judges
- Reports of Judges
Subject to Retention Elections
GENERAL COMMENT
K.S.A. 20-3201 et seq., effective July 1, 2006, established
the Kansas Commission on Judicial Performance as an independent
committee of the Kansas Judicial Council. The Commission is required
by K.S.A. 20-3204(f) to adopt rules for implementation of the
judicial performance evaluation process, subject to the approval
of the Kansas Supreme Court. The following rules were adopted
by the Commission and approved by Order of the Kansas Supreme
Court dated February 20, 2008
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Rule 1. DEFINITIONS AND COMPUTATION OF TIME
(a) As used in the Rules Governing the Kansas Commission on
Judicial Performance, unless the context otherwise indicates:
(1) “Agent” means a person or entity authorized
to perform work for the Commission;
(2) “Commission” means
the Kansas Commission on Judicial Performance;
(3) “Judge” includes
a Supreme Court Justice, Court of Appeals Judge, District Court
Judge, and District Magistrate Judge; and
(4) “Survey,” when
used as a noun, means the questionnaires prepared and circulated
by the Commission.
(b) In computing any period of time prescribed or allowed
by these rules, the day of the act, event, or default from
which the designated period of time begins to run shall not
be included. The last day of the period so computed is to be
included unless it is a Saturday, Sunday, or legal holiday.
When the period of time prescribed or allowed is less than
11 days, intermediate Saturdays, Sundays, and legal holidays
shall be excluded in the computation.
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Rule 2. COMMISSION
(a) Members
Pursuant to K.S.A. 20-3202, the Commission shall be composed
of thirteen members appointed by the Judicial Council. Six
members shall be non-lawyers and six members shall be lawyers
or judges. The Chair shall be a lawyer or judge. At least
one non-lawyer member and at least one lawyer or judge member
shall reside in each congressional district. Regular terms
of Commission members shall be for four years and shall
be staggered; therefore, the initial terms of three lawyer
or judge members and three non-lawyer members shall be for
two years. Of these six members, one shall be from each
congressional district and two shall be “at large” members.
Members may be reappointed for additional terms and the
term of a member shall continue until a successor is appointed.
(b) Goals
The goals of the Commission are:
(1) To improve the judicial performance of individual judges
and thereby improve the judiciary as a whole;
(2) where judges are subject to retention elections, to disseminate
the judicial performance evaluation results to enable voters
to make informed decisions about continuing judges in office;
(3) to protect judicial independence while promoting public
accountability of the judiciary; and
(4) to establish a mechanism to incorporate judicial performance
evaluation results in designing judicial education programs.
(c) Duties
The Commission shall establish and administer a system of
periodic review of the performance of each Kansas judge. The
Commission shall, with the aid of professionals where appropriate:
(1) Create surveys of persons who have directly observed
the judge’s performance or interacted with the judge.
The surveys shall be distributed, collected, and tabulated
by an independent firm or in any other manner that insures
confidentiality. The surveys shall ask those surveyed to
evaluate the judge on such judge’s ability, integrity,
impartiality, communication skills, professionalism, temperament,
and administrative capacity suitable to the jurisdiction
and level of court.
(2) Develop clear,
measurable performance standards upon which the survey questions
are based.
(3) Develop a procedure for each judge to receive and respond
to the Commission regarding his or her judicial performance
evaluation report. Such procedure shall provide judges subject
to retention elections an opportunity to receive and respond
to the Commission regarding his or her judicial performance
evaluation report before the report is made public.
(4) Develop dissemination
plans pursuant to K.S.A. 20-3204(c) that:
(A) Protect confidentiality when the judicial performance
evaluation is used only for self-improvement;
(B) make the judicial performance evaluation results widely
available when they are to be used to assist voters in
evaluating the performance of judges subject to retention
election; and
(C) make public recommendations
regarding whether or not to retain judges standing for retention
election.
(5) Make available in the Kansas Judicial Center and in
each county courthouse the names of the members of the Commission
and the address, telephone number, and e-mail address of
the Commission.
(6) Develop an Internet web site that contains the
information specified in subsection (c)(5) of this rule and
additional relevant information.
(d) Internal Operating
Procedures
The Commission may adopt rules governing internal operating
procedures relating to judicial performance evaluation and
meeting procedures. Such rules shall be consistent with K.S.A.
20-3201 through K.S.A. 20-3205 and these rules.
(e) Required
Disclosures and Prohibitions
A Commission member shall disclose any professional or personal
relationship with a judge that may affect an unbiased evaluation
of that judge, including any litigation involving the judge
and any family or business relationship. Failure to disclose
such information may be cause for removal from the Commission.
No Commission member or staff shall complete a survey about
any judge.
(f) Removal
for Cause
The Kansas Judicial Council may remove any member of the Commission
for cause, including, but not limited to any violation of these
rules or applicable statutory provisions, substantial failure
to perform the duties of Commission membership, incapacity
or disability affecting the ability to perform the duties of
Commission membership, and other malfeasance or nonfeasance
warranting removal.
(g) Staff
The Judicial Council shall provide staff for the Commission.
The function of the Commission’s staff is to assist the
Commission in the performance of its duties. Staff may attend
but shall not participate in deliberations conducted by members
of the Commission concerning a retention recommendation.
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Rule 3. CONFIDENTIALITY
(a) To preserve the confidentiality of the performance evaluation
process, the Commission is not subject to the Kansas Open Meetings
Act, K.S.A. 75-4317 et seq. and records pertaining to any judicial
performance evaluation are exempt from disclosure under the
Kansas Open Records Act, K.S.A. 45-221. Commission meetings
may be open to the public if they concern only the performance
standards or process in general, without disclosure of any
information or deliberations concerning the performance of
an individual judge.
(b) The following are confidential and shall not be disclosed
except in accordance with these rules or the internal operating
procedures of the Commission:
(1) Questionnaires
returned by persons who have directly observed the judges’ performance;
(2) written comments
from the questionnaires;
(3) survey results, unless released by the Commission;
(4) completed self-evaluation forms;
(5) meetings in which the judges are interviewed and the
records kept of those meetings;
(6) deliberations
concerning a recommendation for or against the retention
of any judge;
(7) judicial performance evaluation results when the
judicial performance evaluation is used only for self-improvement.;
(8) confidential court data; and
(9) any other information that is not subject to disclosure
under the Kansas Open Records Act.
(c) After dissemination of narrative profiles, retention recommendations
and survey results, the Commission or a member of the Commission
may publicly discuss only those items.
(d) Notwithstanding any provision in these rules concerning
confidentiality, the Commission may disclose information to
correct false statements made during an election by a judge
concerning his or her judicial performance evaluation.
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Rule 4. DUTY OF JUDGES
All judges are expected to cooperate with the efforts of the
Commission to evaluate their performance. Failure or refusal
of a judge to cooperate may be considered by the Commission
in its evaluation.
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Rule 5. PERFORMANCE STANDARDS
The following are the performance standards upon which the survey
questions are based:
(a) Judges should apply the relevant substantive and procedural
law to resolve issues and cases that come before them.
(b) Judges should maintain the public trust by performing
their duties with integrity and observing the high standards
of ethical behavior established by the canons of judicial conduct.
(c) Judges should dispense justice impartially and without
favoritism or antagonism toward
any party or representative of a party.
(d) Judges should communicate clearly and completely, both
orally and in writing, so that the intended audience can understand
instructions, rulings, and the reasons for them.
(e) Judges should observe high standards of professionalism,
including thorough preparation, maintaining proper order and
decorum in court, responding appropriately to problems that
arise, and exercising good judgment.
(f) Judges should treat those who come before them, including
parties, attorneys, witnesses, court personnel, and the general
public, with dignity and respect.
(g) Judges should manage their cases and workloads effectively,
maintain necessary access to court, and decide matters promptly
and within applicable deadlines.
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Rule 6. SOURCES OF INFORMATION
(a) Persons may be surveyed through such communications media
as the Commission deems appropriate. In evaluating the professional
performance of any judge, the Commission shall rely on the
following sources of information:
(1) Questionnaires. The Commission shall
develop questionnaires that will be used to survey such persons
as the Commission determines to be appropriate who have had
sufficient experience with a judge or justice to form an
opinion about the performance of the judge or justice such
as:
(A) Attorneys who have appeared before or have had professional
contact with the judge being evaluated.
(B) Non-attorneys who have appeared before, or had professional
contact with the judge being evaluated, such as jurors,
litigants, law enforcement personnel, court staff, probation
officers, social services caseworkers, CASA volunteers,
and other resource persons.
(C)
Judges who have had professional contact with the judge
being evaluated.
(2) Self-evaluations. The Commission
shall develop self-evaluation forms that shall be completed
by each judge being evaluated. The self-evaluation forms
shall ask the judges to evaluate themselves in the same areas
as the questionnaires sent to persons who have had professional
contact with the judge being evaluated. The Commission may
also ask the judges to evaluate themselves in additional
areas. Unless previously reported to the Judicial Administrator,
judges of the district court shall list in the self-evaluation
the caption and case number of all pending civil matters
and motions taken under advisement and not decided in compliance
with Supreme Court Rule 166.
The self-evaluation information is for the purpose of requiring
the judge to conduct an appraisal of his or her performance
and to provide information that may be useful in evaluating
the judge. The self-evaluation form shall be signed and dated
by the judge and returned to the Commission prior to the
release of the judicial performance evaluation report to
the judge. Self-evaluation information shall not be quoted
in the narrative profile unless the judge agrees that it
may be quoted.
(b) In evaluating the professional performance of any judge,
the Commission may, in its discretion, rely on any of the following
information:
(1) Statistics and Public Records. The
Office of Judicial Administration and district court administrators
shall provide to the Commission information relating to the
caseload, type of cases and the amount of time the cases
were before a judge. The Commission may request other relevant
information maintained by the Office of Judicial Administration,
the Clerk of the Appellate Courts, and district court administrators,
who shall provide the requested information. The Commission
may also consider information available in any public record.
(2) Interviews. The Commission may
interview any judge who is being evaluated. The staff of
the Commission will assist the Commission in scheduling an
interview session for any judge to be interviewed. All efforts
to accommodate the schedule of the judge and the Commission
will be made. The purpose of the interview is to gather information
for use in completing the performance evaluation and, when
appropriate, provide the judge with an opportunity to address
areas of improvement that have been identified.
Not all judges
will be interviewed each time an evaluation is prepared.
No judge shall receive a recommendation from the Commission
that he or she not be retained unless there has been an opportunity
for an interview with the Commission. If a judge who is interviewed
wishes to provide additional written materials, the materials
should be provided to the Commission prior to the interview.
All meetings of the Commission in which judges are interviewed
shall be closed meetings pursuant to K.S.A. 20-3202(b) and
the content of the meetings shall be confidential. A confidential
record of the action taken at all such meetings shall be
kept.
(3) Written Information About Judges. Written
information which contains the author’s name and address
and is received from a person who appeared before or had
professional contact with the judge who is the subject of
the information may be considered by the Commission. If such
information is considered the Commission shall inform the
judge.
(4) Courtroom Observations. Any Commission
member or agent may make on-site visits to observe any judge
at any public hearing.
(5) Written Opinions. The Commission
may review the written opinions of any judge.
(6) Other Information. The Commission
may consider any other information which, in the Commission’s
opinion, assists in evaluation of a judge. If any such information
is considered, a copy or a summary of such information shall
be provided to the judge, and if an interview is scheduled
the information shall be provided no later than ten days
prior to the interview scheduled with the judge.
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Rule 7. SELF-IMPROVEMENT PLANS
A written self-improvement plan may be submitted by a judge
and considered by the Commission as part of its evaluation.
The Office of Judicial Administration shall cooperate with
judges and the Commission to provide programs for self-improvement.
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Rule 8. COMPILATION OF JUDICIAL PERFORMANCE EVALUATION
DATA
All completed surveys will be collected and compiled by the
independent firm conducting the surveys as authorized and approved
by the Commission. The percentage of responses of “don’t
know” and “not applicable” shall not be included
in or factored into the final results. The firm shall supply
information to the Commission only as a composite report and
the Commission shall not receive the original questionnaires.
The Commission shall not receive demographic information concerning
survey respondents, except to the extent that the firm analyzing
the information determines that the demographic data reflects
a statistically significant disparity that may be relevant
to the evaluation of the judge’s performance. The Commission
shall not report numerical responses from questionnaires concerning
the judge being evaluated if an insufficient sample has been
collected, as determined by the Commission and its agent.
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Rule 9. JUDICIAL PERFORMANCE EVALUATION REPORTS
The Commission shall prepare the judicial performance evaluation
reports for all judges as follows:
(a) Judges Subject
to Retention Elections.
(1) Judicial performance evaluation reports shall be prepared
for judges subject to retention elections. The reports shall
consist of the narrative profile, the retention recommendation,
the survey results and the survey comments. The report shall
be provided to the judge at least 45 days before the last
date for the judge to declare his or her intent to stand
for retention.
(2) Any judge subject to retention elections who is evaluated
may respond in writing within 10 days of receipt of the judicial
performance evaluation report. The responses shall be directed
to the Executive Director of the Commission. The Commission
may schedule an interview with any judge to address his or
her response. The Commission shall provide the judge with
a written copy of the redraft of any part of the report that
is changed.
(3) Judicial performance evaluation reports shall be released
to the public as soon as possible following the deadline
for judges to declare their intent to stand for retention,
but no later than 45 days before the retention election.
The version of the judicial performance evaluation reports
released to the public shall not include the written survey
comments.
(b) Elected Judges.
Judicial performance evaluation reports shall be prepared
for judges subject to political elections in the year prior
to the year in which they will stand for election. The reports
shall consist of the survey results and the survey comments.
(c) Midterm Reports.
The Commission shall provide midterm judicial performance
evaluation reports if its budget and work schedule allows.
Midterm reports for judges subject to retention elections shall
be provided near the middle of their term. Midterm reports
for elected judges shall be provided approximately two years
after the judicial performance evaluation report is provided.
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Rule 10. NARRATIVE PROFILES
(a) Preparation
Narrative profiles shall be prepared for judges subject to retention
elections.
(b) Contents
(1) Narrative profiles
shall contain:
(A) Information identifying
the judge;
(B) the judge’s
judicial assignments;
(C) the number of years
on the bench;
(D) the Commission’s retention recommendation;
(E) any comments explaining reasons for such recommendation;
and
(F) language in the narrative profile stating the judge’s
position, if the judge receives a “Do Not Retain” recommendation
and requests that position be included.
(2) Narrative profiles
may also include:
(A) The vote count the Commission
recorded for each judge;
(B) a statement of the groups of respondents surveyed,
the percentage of responses received from each surveyed
group which recommended that the judge be retained, the
percentage of responses received from each group that had
no opinion as to the retention of the judge and the percentage
of responses received from each group that recommended
that the judge not be retained;
(C) the judge’s strengths and weaknesses, which
may include emphasis on areas of exemplary performance
or areas of significant poor performance;
(D) information concerning the judge’s professional
association activities, recent awards and honors, service
and volunteer work, and other contributions to the community;
(E) any additional information that may be of assistance
to the public in making an informed voting decision on
any judge; and
(F)
language in the narrative profile stating the judge’s
position, if the judge receives a “Retain” recommendation
and requests that position be included.
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Rule 11. RETENTION RECOMMENDATION
(a) The Commission shall make a recommendation regarding the
retention of each judge who has declared intent to stand for
retention. The recommendation shall be “Retain,” or “Do
Not Retain” and shall be included in the narrative profile.
(b) Letter grades in surveys shall be converted to numerical
values as follows: A=4; B=3; C=2; D=1; and F=0. For each judge
an average score for each question on the survey that has letter
grades shall be calculated from all the grades given by respondents
to the question. The average scores for all questions on the
survey that have letter grades shall be added and the result
shall then be divided by the number of questions to produce
an “overall average.” The Commission shall make
a recommendation of “Retain” for any judge who
receives an overall average of 2.0 or more on surveys returned
for each category of respondent (attorneys, non-attorneys,
and judges) unless other information reveals a serious deficiency
in meeting one or more judicial performance standards. If the
overall average is less than 2.0 from any category of respondent
(attorneys, non-attorneys, or judges), the Commission shall
make a recommendation of “Do Not Retain,” unless
one or more of the following conditions applies:
(1) The performance issues identified in the evaluation
are attributable to the nature or high number of cases on
a judge’s docket or caseload, other judicial duties
which prevents the judge from appropriately managing his
or her cases in a timely manner. This may be particularly
true for judges who, when appointed, may inherit a significantly
high number of cases that cannot be managed quickly.
(2) The Commission believes that the judge’s performance
will improve significantly with additional experience on
the bench and with a commitment to improve judicial skills,
based on the judge’s self-improvement plan and other
available information.
(3) The agent administering and compiling the surveys and
the Commission determine that an insufficient number of responses
was received to constitute a valid sample size.
(4) The Commission received information under Rule
6 pertaining to the evaluation that the Commission believes
justifies a “Retain” recommendation. In such
case the Commission shall in its narrative profile specify
the information and explain why it believes the information
justifies retention.
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Rule 12. SURVEY RESULTS
The independent firm conducting the surveys shall provide
the survey results to the Commission. The reports of these
results shall be in a format agreed upon by the firm and the
Commission and shall graphically show the grade average on
each question asked on each of the questionnaires used to comprise
the report. In tabular form the reports shall give the percentage
results for each question asked in the questionnaires and a
combined comparison distribution. The survey reports shall
also contain a methodology section that discusses how the surveys
were conducted and shall include the response rates of the
various groups surveyed.
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Rule 13. SURVEY COMMENTS
The independent firm conducting the surveys shall provide
to the Commission a reproduction of all written comments from
the surveys, redacted to remove any information that would
identify the person commenting. The Commission shall include
written comments from the surveys in the judicial performance
evaluation report of the judge who is the subject of the comment,
unless doing so would reveal the identity of the person making
the comment, in which case the Commission may summarize the
substance of the comments prior to inclusion in the judicial
performance evaluation report. However, the judicial performance
evaluation report that is released to the public shall not
include survey comments.
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Rule 14. DISSEMINATION OF INFORMATION
(a) All Judges
The Commission shall provide each judge with a copy of his or
her judicial performance evaluation report in a confidential manner.
(b) Reports of Judges
Subject to Retention Elections
Subject to the confidentiality provisions of Rule 3, the following
shall apply to the dissemination of judicial performance evaluations
of judges subject to retention elections:
(1) General Distribution. The Commission may make the information,
or a summary of the information, available in a printed medium
at courthouses, libraries, retail and other practical outlets.
(2) Newspaper. The information, or a summary of the information,
may be provided to newspapers and other print media.
(3) Radio and Television. The Commission may utilize public
service announcement air time on radio and television stations.
Public service announcements will direct the listener to the
availability of the information.
(4) Internet. The Commission shall post narrative profiles,
retention recommendations and survey results, if released,
on the Commission’s website.
(5) Paid Advertising. The Commission may purchase paid
advertising as it deems appropriate
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