Part V: Trial Court Performance Standards⁵⁴

The Trial Court Performance Standards ("TCPS"), are the culmination of a long process, involving leading trial judges, court managers and scholars, in which a common language for describing, classifying and measuring the performance of courts is put forth. The TCPS are broken down into five performance areas, as follows:

1. Access to Justice - Trial courts should be open and accessible. Location, physical structure, procedures, and the responsiveness of personnel affect accessibility. Accordingly, the five standards grouped under Access to Justice⁵⁵ require a trial court to eliminate unnecessary barriers to its services. Such barriers can be geographic, economic and procedural. They can be caused by deficiencies in both language and knowledge of individuals participating in court proceedings. Additionally, psychological barriers can be created by mysterious, remote, unduly complicated and intimidating court procedures.

2. Expedition and Timeliness - Courts are entrusted with many duties and responsibilities that affect individuals and organizations involved with the judicial system, including litigants, jurors, attorneys, witnesses, criminal justice agencies, social service agencies, and members of the public. The repercussions from untimely court actions in any of these involvements can have serious consequences for the persons directly concerned, the court, allied agencies, and the community at large. A trial court should meet its responsibilities to everyone affected by its actions and activities in a timely and expeditious manner - one that does not cause delay. Unnecessary delay causes injustice and hardship. It is a primary cause of diminished public trust and confidence in the court.

Defining delay requires distinguishing between the amount of time that is and is not acceptable for case processing. National and statewide authorities have articulated time standards for case disposition. These standards call for case processing time to be measured beginning with arrest or issuance of a summons in a criminal case, or from the date of filing in a civil case.

3. Equality, Fairness and Integrity - Trial courts should provide due process and equal protection of the law to all who have business before them, as guaranteed by the U.S. and state constitutions. Equality and fairness demand equal justice under the law. These fundamental constitutional principles have particular significance for groups who may have suffered bias or prejudice based on race, religion, ethnicity, gender, sexual orientation, color, age, handicap or political affiliation.

Integrity should characterize the nature and substance of trial court procedures and decisions, and the consequences of those decisions. The decisions and actions of a trial court should adhere to the duties and obligations imposed by the court by relevant law as well as administrative rules, policies, and ethical and professional standards. What the trial court does and how it does it should be governed by a court's legal and administrative obligations; similarly, what occurs as a result of the court's decisions should be consistent with those decisions.

Integrity refers not only to the lawfulness of court actions (e.g. compliance with constitutional rights to bail, legal representation, a jury trial, and a record of a legal proceeding) but also to the results or consequences of its orders. A trial court's performance is diminished when, for example, its mechanisms and procedures for enforcing its child support orders are ineffective or nonexistent. Performance also is diminished when summonses and orders for payment of fines or restitution are routinely ignored. The court authority and its orders should guide the actions of those under its jurisdiction both before and after a case is resolved.

4.     Independence and Accountability - The judiciary must assert and maintain its distinctiveness as a separate branch of government. Within the organizational structure of the judicial branch of government, trial courts must establish their legal and organizational boundaries, monitor and control their operations, and account publicly for their performance. Independence and accountability permit government by law, access to justice, and the timely resolution of disputes with equality, fairness and integrity; and they engender public trust and confidence. Courts must both control their proper functions and demonstrate respect for their coequal partners in government.

Because judicial independence protects individuals from the arbitrary use of government power and ensures the rule of law, it defines court management and legitimates its claim for respect. A trial court possessing institutional independence and accountability protects judges from unwarranted pressures. It operates in accordance with its assigned responsibilities and jurisdiction within the state judicial system. Independence is not likely to be achieved if the trial court is unwilling or unable to manage itself. Accordingly, the trial court must establish and support effective leadership, operate effectively within the state court system, develop plans of action, obtain resources necessary to implement those plans, measure its performance accurately, and account publicly for its performance.

5.    Public Trust and Confidence - Compliance with the law depends, to some degree, on public respect for the court. Ideally, public trust and confidence in trial courts should stem from the direct experience of citizens with the courts. The maxim "Justice should not only be done, but should be seen to be done!" is as true today as in the past. Unfortunately, there is no guarantee that public perceptions reflect actual court performance.

Several constituencies are served by trial courts, and all should have trust and confidence in the courts. These constituencies vary by the type and extent of their contact with the courts. At the most general level is the local community, or the "general public" - the vast majority of citizens and taxpayers who seldom experience the court directly. A second constituency served by trial courts is a community's opinion leaders (e.g., the local newspaper editor, reporters assigned to cover the court, the police chief, local and state executives and legislators, representatives of government organizations with power or influence over the courts, researchers and members of court watch committees). A third constituency includes citizens who appear before the court as attorneys, litigants, jurors or witnesses, or who attend proceedings as a representative, a family friend, or a victim of someone before the court. This group has direct knowledge of the routine activities of a court. The last constituency consists of judicial officers, other employees of the court system, and lawyers - both within and outside the jurisdiction of the trial court - who may have an "inside" perspective on how well the court is performing. The trust and confidence of all these constituencies are essential to trial courts.

Relationship Between Responses and the TCPS

The TCPS suggest five areas in which courts must strive for excellence in order to best serve those who come before them. Each of the potential responses discussed in Sections II - IV above implicates at least one of these areas in some way.

1.    Access to Justice - The first basic tenet of the TCPS is that trial courts should be open and accessible. The corollary to this is that a court should strive to eliminate all barriers to its services that are not necessary for safety and efficient operations. Coincident with that is the mandate that court personnel should attempt to understand the litigants that their court services. This is not to say that courts should sacrifice detached impartiality in rendering legal judgments. Rather, it goes toward the attitude court personnel have toward consumers of their service. Barriers can transcend the physical and extend to the ideological. The members of the groups to which this guide speaks are not somehow unintelligent or malicious or evil. Rather, they are often vulnerable people who have become disaffected for some reason and are looking for answers that our system does not seem to provide for them. If our courts understand that they hold these beliefs, and work to accommodate them within the safe and efficient operation of the courts, we can assure that our courts do remain open - while dousing some of the fuel which fires the fervent beliefs antigovernment groups hold. This goal is most clearly understood in the context of TCPS Standard 1.3 - Effective Participation. Though these tactics are not explicitly contemplated by the TCPS, it is clearly within their spirit to do so now. While use of the contempt power, for example, is clearly necessary in some circumstances, in others it amounts to little more than access to justice denied. Conversely, noting the objection of a litigant and moving on, or working to accommodate their reasonable demands, are more in line with truly providing access for these people. While noting the objection initially alleviates any implication that justice has been denied, it ultimately strains judicial resources by providing - in some instances - grounds for appeal. Though odious to some, in particular cases such as the fringed flag objection, the course of action most consistent with this aspect of the TCPS might just be accommodation.

2.     Expedition and Timeliness - The underlying goal of this section of the TCPS is that all trial court functions should be performed within a proper, suitable and reasonable time. While, again, the tactics discussed here are not explicitly discussed in the TCPS, it is clear that TCPS Standards 2.1.1 - 2.1.4 are implicated by issues arising in and related to the courtroom or trial process. Each of these is concerned with the time it takes for cases to reach disposition, the ratio between case dispositions and filings, and the age of impending caseloads. If courts engage members of these antigovernment groups in their protests and refuse to accommodate certain of their demands - such as not flying the fringed flag - cases will age as appeals are docketed and arguments are heard. For these reasons, it is entirely consistent with TCPS Performance Area 2 for courts to forego use of the contempt power, unless absolutely necessary, and to instead attempt to facilitate cooperation between the parties and the court.

3.     Equality, Fairness and Integrity - This performance area is concerned with a court's consistency in the way that it applies rules and conventions and assesses penalties against the parties who come before it. In this area, perhaps the biggest danger that courts face is the danger that judges begin to take dealing with the antigovernment groups personally. That is, it might become a personal challenge for a judge to deal with a heavy hand and not allow the views of these groups or their arguments to be expressed. Certainly, when a court acquiesces or compromises with an unruly party, the court is minimizing the chance that it will be seen to be heavy-handed or unfair. In contrast, the judge who is quick to invoke the contempt power and fine or lock up someone with whom the judge disagrees and who also has been a disruptive or contentious party, the judge and the court risk losing their presumptive impartiality. This may occur in the eyes of those who see the judge quickly resort to contempt, perhaps sooner than the judge would have with a different type of patron. As well, it will certainly appear to the members of the movement that the judge will truck no disturbance or refusal to conform.

It is not an easy place for the trial judge, for almost no matter what he or she does, the members of these groups are likely to remain dissatisfied. Even the appearance of a personal challenge begins to destroy the court's actual integrity and the public's perception of that integrity. For this reason, we advocate for judges to resolve disputes over matters which afford different avenues in ways that uphold both the perception of fairness and the actual existence of fairness. In response to the in-court tactics, this is probably an equally good approach as that of noting the party's objection and moving on. Both show that this is a fair judge and one who does not allow his or her own preconceived opinions to dictate his or her rulings in the court.

4.     Independence and Accountability - Performance Area 4 encompasses several heuristic measurements designed to assess how courts maintain comity and deal with the people they serve and events they are confronted by. Responses to the tactics of the antigovernment movement may possibly implicate at least two of the specific standards within this Performance Area. Standard 4.4.3 measures a court's community outreach efforts. While the standard itself is meant in the context of traditional community outreach, the spirit of that standard values all court-community relations. For this, we believe that responses to these tactics that evince less of an authoritative or, especially, prejudiced attitude toward members of these movements and more of a willingness to work with litigants are the more desirable route. Necessarily, courts' responses will have to be different, according to the particular tactic at hand. For example, there is probably more leeway available to work with and around a "subject matter jurisdiction" argument based on a gold-fringed flag than there is to work around a "personal jurisdiction argument" based in a litigant's beliefs about citizenship. The flag is a physical object that may be removed, even if just for that particular hearing. The citizenship argument, however, invites interminable discussions about the nature of citizenship and the like - whether the court intends to go there or not. In cases such as this, it is entirely reasonable for a judge to note the party's objection and move forward -such a response does not indicate animosity toward the party, preconceived ideas about the party, or prejudice against the party, but rather evinces the judge's fairness and respect for our rules of procedure.

We do not wish to suggest here that courts should placate members of these groups for the sole sake of placating them. Nor do we suggest that the existence of this class of litigants should force courts to change sound court policy or procedure. However, existing policies and procedures are predicated upon serving a particular, already identified community having a generally common set of beliefs and expectations. The presence of these antigovernment groups suggests that, at times, courts now deal with a different community. For this reason, we believe that their presence signifies changed circumstances of which courts must be both aware and willing to acknowledge. Finally, Performance Standard 4.4, Public Education, contains several factors concerning the way courts disseminate information to the public. The tactics used by the antigovernment groups implicate this standard in a certain way. The way a court conducts itself, the rulings it makes, and the interaction with the media all tell a story about how our institutions are responding to these groups. This is not to say that a court should become a vendor in the marketplace and take a public stance against the antigovernment political theory. However, courts must be always mindful of their effect on the public opinion and choose responses which suggest a respect for the political beliefs of all of our citizens but reflect a firm commitment to upholding the law that both governs and protects us all.

5.     Public Trust and Confidence - This Performance Area is about the way that the general public perceives the court and the job it is doing. Responses that agitate or antagonize the antigovernment groups cut two ways. On one hand, such responses can lead to negative publicity, or propaganda, put forth by the movement. On the other, they can reassure what will soon become an informed public that those who threaten the system are being dealt with fairly but firmly. It may very well be that the arguments surrounding things like personal sovereignty, the fringe on flags, harassment of court personnel, and the like represent battles worth fighting. These arguments go to the very core of these groups' beliefs, and courts should take a strong stance to inform that they are incorrect as a matter of law - but nonetheless welcome back into the societal fold upon their behavior conforming to the law.

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54 The descriptions of the standards that follow are taken from Trial Court Performance Standards and Measurement System Implementation Manual. Bureau of Justice Assistance, July, 1997.

55 The five standards are: Public Proceedings; Safety, Accessibility and Convenience; Effective Participation; Courtesy, Responsiveness and Respect; and Affordable Costs of Access.