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Why Judicial Evaluations Matter: A Conversation With Judge Colleen Kollar-Kotelly

December 06, 2023

By D.C. Bar Judicial Evaluation Committee Chair Kate Rakoczy

From left: D.C. Bar Judicial Evaluation Committee Chair Kate Rakoczy with U.S. District Court Senior Judge Colleen Kollar-Kotelly and retired D.C. Superior Court Magistrate Judge Diane Brenneman, chair and vice chair, respectively, of the D.C. Commission on Judicial Disabilities and Tenure.

Each year, in support of the D.C. Bar’s mission to aid the courts in improving the administration of justice, the D.C. Bar Judicial Evaluation Committee conducts a performance evaluation survey of selected D.C. Courts judges.

The anonymous survey is open to Bar members who have appeared before the judges during the 24-month evaluation period. For the 2023–2024 survey, the Judicial Evaluation Committee invites eligible Bar members to provide feedback on the performance of 3 D.C. Court of Appeals judges and 23 D.C. Superior Court judges. The survey is available through January 12, 2024.

Around spring, results of the annual survey are presented to the chief judges of the D.C. Courts, the individual judges being evaluated, and the D.C. Commission on Judicial Disabilities and Tenure.

Created by Congress in 1970 with the passage of the District of Columbia Court Reorganization Act, the commission is an independent body that provides an accountability check on D.C. Courts judges by investigating complaints of misconduct and by conducting ongoing fitness reviews. The Bar’s judicial evaluation survey is among the tools the commission uses to evaluate a judge’s performance.

“The survey results are very important to the commission because they are an easy and accessible way for the community to provide essential and real-time feedback during a judge's term of service,” said U.S. District Court Senior Judge Colleen Kollar-Kotelly, chair of the commission. “While there are naturally some limitations, given that the responses are anonymous, we also learn things about a judge’s performance that we may not otherwise know because this will come in the interim, as opposed to through complaints or when we do fitness reviews.”

In late November, the D.C. Bar sat down with Judge Kollar-Kotelly to talk about the commission’s work and why it’s important for D.C. Bar members to participate in the survey.

Please explain the role and responsibilities of the commission in evaluating judges of the D.C. Courts.

The commission’s mission is to maintain public confidence in an independent, impartial, fair, and qualified judiciary, and to enforce the high standards of conduct that judges adhere to both on and off the bench.

The commission does this in several ways. First, by statute, it must evaluate formal and informal complaints about judicial conduct. Second, it also conducts fitness reviews for associate judges and senior judges, and initial appointments of retired judges who are seeking senior judge status. Fitness reviews include, among other things, a review of the judge’s record, evaluation of insights and comments from the community and stakeholders, and medical reviews.

Beyond the cycle of appointments or fitness reviews, or in the context of a complaint, the commission looks for interim opportunities to hear from stakeholders in the community about a judge’s performance. These interim opportunities give the commission important insights into where judges are doing well, where there is room for improvement, and even challenges that are facing judges or the D.C. Courts more broadly.

These insights allow for early inquiry and even intervention into potential problems that the commission views as critically important, as part of maintaining a fair and impartial judiciary.

Where does the Bar’s judicial evaluation survey fit in the commission’s work of ensuring high standards of judicial conduct on the D.C. Courts?

The D.C. Bar evaluations are one of the invaluable tools the commission uses to gain these interim insights into a judge’s performance, especially where detailed commentary is provided. We value and appreciate the work that goes into creating the surveys and compiling the responses and results.

We make [the survey results] available to all of the commission members, and we review them. Where the survey results include numerous responses with detailed comments, they can be quite useful as an interim check on a judge's performance, whether it is positive or negative.  

The commission often uses these responses alone, or in combination with other information, in a range of ways — for instance, offering real-time feedback to a judge on specific performance matters (we may meet with the judge to discuss those), monitoring for training opportunities for newer judges, monitoring for improvements in a specific judge’s performance, identifying trends or patterns that may be of significance for individual judges or that raise broader D.C. Courts issues, and providing important community insights for a judge’s fitness review.

How does the survey benefit judges under review?

Many judges find the survey results useful. As you may know, given the nature of a judge's role, it is often hard to receive feedback during their term, specifically honest feedback. As a commissioner, I have seen that many judges take survey responses to heart. The judges do review them. They are given to them individually, and they do go over them.

It is an opportunity for them to use them to reflect and self-assess their judicial performance, as well as the perception about them from the community, whether or not they are appearing before the commission on issues. It is important for the judge not only to be fair, but [also] to be perceived by the community as fair, which is a different issue. The commission encourages this practice and applauds this kind of self-reflection. It is important that we all strive to improve in whatever we do.

Each year, when promoting the survey, the Judicial Evaluation Committee often hears from attorneys that they worry that nothing is actually done with their feedback — that they raise complaints, but then, in their opinion, they do not see any results. How would you respond to that?

Well, I understand that concern. Where comments are provided anonymously through a survey, the commission may be more limited in what it can do, and there is certainly no way for us to contact responders. If there are specific concerns about a specific case, we encourage responders to also consider sharing them directly with the commission. In other words, [our] website has various ways that you can contact us, and it is important for people to do that so that we get more specific information.

I want to assure the legal community that all concerns, all comments, are taken seriously. Where informal or formal action is warranted and can be taken, the commission does take action. When attorneys or members of the community reach out, the commission will listen and respond. However, the commission is limited by law in what it can do or share.

One thing I must emphasize is that the commission is constrained by very strict legal requirements in its statute about what it can release publicly. These legal restrictions were put in place back in the 1970s for good reason. They protect all parties involved in this process, including the complainants, the judges, [and] the witnesses, and the commission is extraordinarily careful and thoughtful about any information shared in either direction to protect all involved and to avoid disruption to any ongoing litigation.

Even though much of our work is confidential, the commission works closely with our legal counsel to find ways to release information that may be helpful to the D.C. Courts, judges, and the community — either through public statements, which we do on occasion; annual reporting [to D.C. Council]; or fitness reports, all of which are made public by law. Also, where discipline or remediation of judicial conduct is appropriate, the commission is absolutely committed to assuring that action will be taken.

Now, public statements, annual reporting, and public actions by the commission can be found on its website.

Attorneys have an incredibly important role in providing feedback about judges who preside over the cases. This feedback is critical to the commission’s work and essential to ensuring that judges receive important information on their performance. And it is our sincere hope to continue to work closely with the legal community and maintain trust that their concerns will be kept confidential to the extent that it is permitted by law.

The reality is that the commission does look carefully into complaints and comments, and we do have the responsibility to look at as many facts and factors as we can when evaluating a judge, not just at the time that we do the fitness reviews, but on an ongoing basis.

What does the commission do when there is a particularly detailed complaint expressed in the survey?

Well, the commission looks closely at all the detailed commentary, whether it is positive or negative. Now, occasionally, survey responses will include a more detailed concern that could actually rise to the level of a complaint, if it were possible to identify the participants or the specific case. Unfortunately, given that they are anonymous, the survey responses often do not provide sufficient detail for that type of investigation, which is why we encourage attorneys to bring us specific case information directly, and this can be done in various ways.

Now, that is not to say that the commission does not do anything about anonymous concerns raised. We do have other ways of following up on more serious concerns, and we do not shy away from that responsibility. But, realistically, the more limited information we have, the more limited our options are in terms of understanding and being able to address those concerns. I really would strongly urge, if you have made your concerns, to make sure that you do bring them directly to our attention, in addition to the survey.

How was the commission created, and how are the commissioners appointed?

The commission was created by Congress around the same time as the D.C. Home Rule Act. It set up the D.C. local courts, the D.C. Bar, to reflect the need for local stakeholders to oversee the judicial officers who were to be appointed to the new court system at that point.

The seven commissioners are appointed representatives from major stakeholder entities in the District. We have two appointed by the D.C. Bar Board of Governors, two by the mayor, one by D.C. Council, one by the chief judge of the U.S. District Court (me), and one by the president of the United States. We generally have attorneys, but we also have lay people. Presently we have two.

Given the commission's founding history and what is required of appointed commissioners, we expect of ourselves the same high standards of fairness and integrity that we expect of our judges. After all, we are all part of the same system.

For those who are reading this article and are thinking about filling out the survey, what particular types of feedback or topics are most helpful to you and the others on the commission?

All of the information shared in the survey is helpful. We review all of it very carefully, and we want as many people as possible to complete the survey because, really, it is the only way to separate a trend from isolated incidents, and it gives us this interim evaluation and information, other than when we get specific complaints or we are doing these fitness reviews.

We encourage attorneys to provide specific feedback, whether it is positive or negative, with as much detail as they feel they are able to share. The more specific the feedback, the more probative and helpful it is to the commission and judges. But this comes with the understanding that legal decisions the judges make that the parties or the attorneys are unhappy with is not our jurisdiction. It is not going to be that. That is the appellate court.

Specific information [also] helps the commission commend judges for the great work they are doing every day. We would look at these things, and we also pass on positive comments. The judges do not view [the survey] as strictly [for] negative comments. Especially in these challenging times with high caseloads and increasingly complex concerns, positive feedback can go a very long way to sustaining our valuable judiciary.