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August 22, 2014

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Law column:

Judicial selection bill advances

Nevada is one step closer to appointing all future judges after the Legislature for the second time passed a bill calling for appointment and retention election of judicial candidates.

The legislation is designed to guarantee Nevada the best possible judges while giving voters the chance to boot anyone they don’t think measures up. And for the first time, they would be able to base that decision on concrete data — thorough evaluations of judges.

Because it constitutes a change to the state Constitution, the legislation has to be approved by voters in 2010 before it becomes law. But switching to such a system might be bit more complicated — and expensive — than advocates had bargained for.

Many judges are already appointed by the governor after their predecessors leave the bench midterm due to retirement, death or expulsion. That part is pretty easy to implement.

But key to the whole system are the judicial evaluations, which would allow the public for the first time to access key information on sitting judges’ performance on the job before casting their votes.

The closest thing voters have had up to this point is an informal attorney survey of judges conducted every two years.

These started in Southern Nevada in 1992 as a partnership between the Clark County Bar Association and the Las Vegas Review-Journal. The bar association ended its participation in the survey four years ago, and attorneys complain that the results are incomplete since only about 19 percent of Clark County attorneys actually respond to the surveys.

The Washoe County Bar Association also conducts a survey in the northwestern part of the state.

Both evaluation processes have been heavily criticized by the legal community for a variety of reasons including the informal nature of the process, the low return rates and the publicity occasionally given to salacious comments in the surveys.

But implementing a more formal, thorough and accurate evaluation process is harder than it seems, according to a report recently released by the Grant Sawyer Center for Justice Studies at the National Judicial College at UNR.

The report is the final product of a yearlong pilot project meant to test whether a fair and accurate judicial evaluation was possible in Nevada and what changes would be necessary to implement such a process.

Using five anonymous volunteer judges, researchers found that creating an evaluation wasn’t impossible in Nevada but that the state’s court system is a long way from being able to cope with the data and practical requirements for a thorough one.

The researchers attempted to assess a judge’s legal knowledge, integrity, communication skills, judicial temperament, administrative performance and public outreach as well as their efficiency in completing cases.

The pilot program was based on systems used in 20 other states where evaluations are part of the regular election process and the American Bar Association’s “Best Practices” guide on evaluation of judges.

They tried to gather much of the information through surveys of attorneys, litigants, jurors, court staff and peer judges.

However, contact information for most of these groups was unavailable, hard to find or denied to the researchers.

It was also impossible to assess the views of jurors, since contact information on juries was limited or unavailable entirely.

“The manner in which researchers had to attempt to gain input from jurors as part of the pilot project does not meet any acceptable standards for research and alternative methods need to be considered,” the final report states.

Researchers suggested creating or expanding juror exit surveys administered at the end of each jury trial while jurors are still in the courthouse.

It was just one of several obstacles the report said need to be corrected before comprehensive evaluations could be undertaken.

To do a more thorough evaluation, the state must create exit surveys for jurors and litigants, overhaul courts’ data collection processes, and create or improve contact information data banks.

The report suggests the state start by creating a judicial evaluation program commission to oversee a thorough assessment of how to implement necessary changes, should the constitutional change be approved by voters in 2010.

The report also suggests the state complete a design and cost analysis on the program. After all, building, improving or acquiring the necessary data collection systems wouldn’t come cheap and the state is struggling financially.

The 2008 operating budgets for similar programs in other states range from $105,900 in Alaska to $843,294 in Colorado.

Beyond that, the researchers asked for a break from key court personnel, who were described as uncooperative, although it doesn’t reveal whether that was because of resistance to the pilot project or court staff’s focus on pressing daily court matters over the needs of outsiders.

Either way, the researchers suggest making court personnel major players in the proposed commission.

Stephanie Tavares covers utilities and law for In Business Las Vegas and its sister publication, the Las Vegas Sun. She can be reached at 259-4059 or at [email protected]

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