Court Governance: Balancing Judicial Independence with Administration

1. Court Governance: Balancing Judicial Independence with Administration October 8, 2013 2013 Annual Judges Conference New Orleans, Louisiana

2. The Challenge “There can, of course, be no disagreement among us as to the imperative need for total and absolute independence of judges in deciding cases or in any phase of the decisional function. But it is quite another matter to say that each judge in a complex system shall be the absolute ruler of his manner of conducting judicial business. Can each judge be an absolute monarch and yet have a complex judicial system function efficiently?” ~ Burger

3. Continuing Questions of Court Governance • Role of Presiding Judge • Selection and Tenure of Presiding Judge • Relationship between Presiding Judge & Trial Court Administrator

4. Louisiana Court Governance Survey, May 2013

5. Top Areas of Concern

6. Leadership Tools • Model Rule – Role of the Presiding Judge • Harvard Executive Sessions

7. Model Rule Key Elements of an Effective Rule of Court on the Role of the Presiding Judge in the Trial Courts • A National Tool • Raises issues and suggests examples that permit tailoring to fit the needs of the local governance structure

8. Model Rule Topics • Term / Selection / Removal / Training • Judges: Assignments / Supervision / Committees • Case Management • Court Operations / Procedures / Planning • Liaisons / External Agencies • Trial Court Administrator

9. Model Rule Guidance: Role of Presiding Judge • Judicial Assignment • Docket Management • Supervision of Judicial and Court Officers • Coordination of Judicial Schedules • Establishing Board of Judges and Court Committees • Establishing Specialized Courts or Calendars • Operations Policy (Personnel, Facilities, Procurement, Finance, Security) • Strategic Planning • Liaison to Outside Agencies, Media, and Stakeholders • Establish Automation Systems and Statistical Reporting • Establish Procedures to Create Local Rules

10. Role: State Examples (Judicial Assignment) • Alaska: Judges who disqualify for cause must state reasons in writing and forward to the Presiding Judge • Alaska: PJ may assign a judicial officer to locations within or outside the judicial district to keep calendars current • Arkansas: All matters in a proceeding will be heard by the judge originally assigned • North Carolina: PJ may arrange dockets to permit specialization by individual judges

11. Model Rule Guidance: Selection of Presiding Judge • Most common method is selection by majority vote of judges • Alternatives: • Appointment by Chief Justice • Appointment by executive or legislative branch • Default to seniority • Accept volunteers

12. Selection: State Examples • Utah: Elected by majority of judges...If majority cannot be obtained, appointed by the presiding officer of the Council for 2 years • Oregon: Chief Justice appoints after conferring with the Supreme Court. A majority of judges may disapprove the appointment by a written resolution signed by each judge. Chief Justice will appoint another judge. If the court has five or more judges, a second disapproval is permitted and Chief Justice will appoint a third judge.

13. Model Rule Guidance: Tenure of Presiding Judge • Varies from 1 to 12 years • Judges can serve multiple terms • Judges may have term limits • Term length should be at least 2 years • Renewable terms are important to facilitate continuity in court leadership

14. Tenure: State Examples • Arizona: Term of 5 years. May be extended by the Supreme Court • California: Term of at least 1 year in a 2 judge court; term of at least 2 years in a court with 3 or more judges. May serve additional terms • Nevada: Presiding judge serves at the pleasure of the chief judge • Utah: Term is presumed to be 2 years; by majority vote of the judges, may opt for a 1 year term. May serve successive terms

15. Model Rule Guidance: PJ and TCA Relationship • Administrator is an agent of the board of judges and a professional agent of the Presiding Judge. • Ability to build a working relationship is critical to court executive team success. • Key components include how the two work together to oversee court management and whether they can serve together to lead the organization.

16. PJ and TCA Relationship: State Examples • Florida: Court Administrator is selected or terminated by the Presiding Judge with concurrence by majority of judges • Illinois: The Trial Court Administrator supports the judiciary as a whole. All judges should participate in the selection process. The final decision is by majority of judges • Nevada: The Presiding Judge directs the Administrator in the management of the division and performance of the administrator’s duties, including collection and compilation of caseflow statistics

17. Court Governance: From What to How • No shortage of examples of different types of court governance structures • As survey results suggest, governance structure doesn’t resolve everything • The question is how to govern within the court’s governance structure

18. Governance: The Final Frontier

19. Leading in the Judicial System “…an institution or a group of robed lawyers who office share?”

20. The “Loosely CoupledOrganization”

21. Loosely Coupled Organization • Complex and specialized decision-making • Highly trained professionals with individual autonomy • Tension between institutional commitment and personal autonomy • External funding • Changing public expectations

22. Loosely Coupled OrganizationCore Characteristics • Federated structure • Accountability v. autonomy • Unpredictable connections • Complex and knowledge intensive • Integration and specialization

23. Governance

24. Judiciary as a Loosely Coupled Organization Federated Structure • Accountability v. autonomy • Unpredictable connections • Complex and knowledge based • Integration and specialization Judicial Selection • System v. courtroom • State, county or local jurisdiction • Continuously changing • Solving problems or deciding cases

25. Governance Mechanisms • Leadership mechanism • Process mechanism • Fairness mechanism • Communication mechanism “It is not enough to constitute a good government – it is equally important to adopt mechanisms to ensure permanency of good government.” -Thomas Paine

26. Leadership Mechanism:The Importance of Legitimacy • Universally recognized • Inclusive • Accepted “Consent of the governed is the foundation of all legitimate authority.” -Alexander Hamilton

27. Process Mechanism:Protecting and Guiding • Monitoring to prevent crisis • Process v. specific plan • Visioning “Vision without execution is hallucination.” -Thomas Edison

28. Fairness Mechanism:Collaborative Decision-making • Trust • Objective criteria - selflessness • Coalitions – issues versus personalities • Transparency • Influence “Trust is the foundation of all relationships.” -Stephen Covey

29. Communication Mechanism • Regular and trusted • Vertical and horizontal • Emphasize common values and goals • Builds confidence and recognizes contributions “The art of communication is the language of leadership.” -James Humes

30. Your Top Areas of Concern

31. Representative Hypotheticals • Court Administration • Inter-Branch Relations • Media Relations • Personnel Management • Press Relations • Security • Workload / Performance