New Rules on Judicial Performance Evaluation

With the new year, 2022, comes a new procedure for the Judicial Performance Evaluation program. There is now an exception to the complete confidentiality of the evaluation information obtained pursuant to rule 58 for circuit and associate judges. The Supreme Court’s Committee on Judicial Performance Evaluation proposed the change in the rule.

Before January 1, 2022, the rule provided that only the evaluated judge and the individual facilitating the evaluation and presenting the material to the judge would know the contents of the evaluation and the name of the judge being evaluated. The only exception to that strict confidentiality was in the instance of a criminal investigation where a law enforcement agency could make a written request for information about a particular judge. That remains the case for evaluations done after January 1, 2022.

The amended Rule 58 effective January 1, 2022, retains the goal that the “program must be conducted candidly and in strict confidence” and that “the disclosure of evaluation information would be counterproductive to the goals of the evaluation program.” The amended rule still provides that all information, notes, computer and other data used in the course of a judicial performance evaluation “shall be privileged and strictly confidential” and that only the judge being evaluated and the person facilitating the evaluation are permitted to know to which judge the particular information applies.

However, the modification to the strict confidentiality for performance evaluations conducted after January 1, 2022, allows a chief judge or the Supreme Court to request performance evaluation data for a judge in accord with Rule 21.¹

Supreme Court Justice Michael Burke, the liaison to the committee, emphasizes that confidentiality is still intact with this amendment. “It does not open the door” to disclosure of evaluation information on any judge. The purpose of the amendment, according to Justice Burke, is to give chief judges “one more tool in the toolbox to supervise judges and give the chief more information to make a decision.” He pointed out that a chief judge will need a specific reason to request the Supreme Court to authorize release of the evaluation information. Justice Burke anticipates the Supreme Court will “look critically” at any request for evaluation information and not give “rubber stamp: approval to any requests.” He said that each such request will be reviewed on a case-by-case basis as presented. He does not anticipate the Supreme Court will receive many requests for the evaluation information.

While some states make judicial performance evaluations available to the public, fifth District Justice Barry Vaughan, chair of the performance evaluation committee, told me Illinois does not allow such access. Justice Vaughan expressed confidence that the potential availability of evaluation data to a chief judge will be a tool for self-improvement. Both Justice Burke and Justice Vaughan are facilitators in the evaluation program. From their experiences from numerous evaluations are that the vast majority of Illinois judges receive good evaluations from attorney and court personnel surveyed.

Justice Vaughan gave a possible scenario where the performance evaluation information might likely be used: A chief judge may have some information from other sources about performance issues with a judge. The chief could use the the authority from Rule 21 to request access to the judge’s performance evaluation data. The chief could cite the past positive evaluations to focus with the judge on issues that may be impacting judicial performance and assist the judge in resolving those issues and remaining a productive member of the judiciary. Justice Burke said he expects any use of the performance evaluation data to be rehabilitative and not disciplinary.

Scott Szala, a former member of the committee and strong proponent of the amendment, agrees that the change in Rule 58 is to assist a chief judge in maintaining a strong judiciary in the circuit. Szala also anticipates there will be very few requests from chief judges to receive performance evaluation information on any judges in their circuits. Justice Vaughan said he expects this authority for a chief to request judicial performance evaluation data on a judge will be an extreme measure that will rarely be used.