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In 2014, Representative Kelly Cassidy (D-Chicago) proposed to amend the Illinois constitution as a means to improve the way Illinois retains its judges. Her bill (HJRCA0010) suggested a judicial performance commission for  the evaluation of judicial retention candidates. As explained in a Chicago Sun-Times editorial from September 16, 2019, Representative Cassidy’s “merit retention” proposal was novel at the time, as it offered an interesting solution to the deficiencies of our current judicial retention election system which has failed, time and again, to remove unqualified, biased, or temperamental judges from the bench. Under this model, judges deemed qualified for retention by the independent commission would retain their positions and those found unqualified for retention would have the option to run for retention in the general election. A merit-based system would, in theory, provide qualified legal experts an opportunity to remain in their positions while simultaneously allowing judges deemed unqualified to appeal the decision to the public by way of a general election.

The performance commission model for judicial selection (not retention) has been in use in over a dozen states for more than thirty years. Performance commissions are typically composed of both attorney and non-attorney members who convene to objectively research the performance of sitting judges, as measured by formal professional standards of care. The most well-known performance commission is in Colorado, created by statute in 1988. With the purposes of “providing voters with fair, responsible, and constructive evaluations of judges and justices seeking retention” and helping judges “improve their professional skills as judicial officers,” the Colorado Commission on Judicial Performance has evaluated over 1,500 judges since 1990.

From 2010 until 2014, Chicago Appleseed and the Chicago Council of Lawyers administered a pilot Judicial Performance Commission in Cook County, based in part upon the Colorado model and in part upon the American Bar Association’s Model Standards for Judicial Evaluation. The pilot Commission released detailed narrative performance reviews for judges, based upon the retention cycle, in the belief that voters should be given sufficient information to make meaningful ballot decisions about their judicial officials. Our Judicial Performance Commission model included paid investigative staff and a diverse group of non-lawyer community representatives who examined judges’ adherence to the law, demeanor toward people in the courthouse, and commitment to professional development. The pilot project demonstrated that meaningful evaluation of sitting judges is possible. Systematic judicial evaluations based upon outcome-neutral professional standards are powerful tools for bringing oversight to the courts; collecting, analyzing, and publicly reporting on performance data is a viable means to improve the quality of the Cook County judiciary.

Although we attended several committee hearings on Representative Cassidy’s proposal in 2014, Chicago Appleseed and Chicago Council of Lawyers have not yet been involved in more recent policy proposals. Going forward, we believe that any proposals to reform the retention election system should be community-focused, including, among other things, a solid appellate component; a judicial retention commission reflective of the diverse communities that are disproportionately underrepresented in court-related issues; and adequate representation from communities of color.

Informing and engaging voters in the process of judicial retention matters to Chicago Appleseed and Chicago Council of Lawyers because we fundamentally believe that the status of our courts impacts everyone, not just the people with pending cases. We are excited that conversations around merit-based judicial retention and improving the functioning of our court systems are again being brought to the forefront. We remain interested in formulating a better retention system and are eager to learn about any current or future proposals aimed at ensuring fairness and equity in our courts. Our courts are a major part of our government and it is important for everyone to understand not only how they work but how they can be held accountable to the ideals of equal justice, accessible to all.