Survey aims to help Sedgwick County voters judge the judges

07/20/2014 6:58 AM

08/12/2014 10:42 PM

Editor's note: An earlier version of this story contained an incorrect figure for traffic cases that Judge Phil Journey handles annually. He handles about 22,000 traffic cases annually.

For 12 years, Wichita city assistant attorney and judicial candidate Mike Hoelscher has practiced law in Sedgwick County. He says he has tried to treat everyone with courtesy and respect, “even when our positions were adverse to each other.”

His attorney colleagues – at least the 100 who evaluated him in a survey sponsored by the Wichita Bar Association and The Eagle – agree, giving him near-perfect marks for fairness, ethics and being respectful, courteous and professional.

Hoelscher is running against Wichita attorney Diane Sherwood for the 18th Judicial District Division 19 seat, which will be vacated by Judge Mark Vining when he retires in January.

Sherwood received her most-positive feedback in the survey for treating people fairly, being ethical and being respectful, courteous and professional.

Between half and two-thirds of her 86 respondents answered favorably in each of those categories. The scores speak to “my quality of character,” Sherwood said.

“I think that I’m known as an unbiased mediator in this town,” she said. “I think that I’m known to have a high degree of integrity. I think that I’m known for my honesty.”

The survey, conducted online June 6-26, has been conducted every other year since 2006 to help evaluate the performance of sitting judges and those seeking judgeships in Sedgwick County.

Respondents were asked to rate the candidates and judges with whom they have professional knowledge or experience on 10 topics such as “is ethical” and “is prepared for court.” Their responses ranged from “strongly agree” to “strongly disagree”; the survey also gave options to answer “neutral” or “no opinion.” The Eagle then ranked the judges and candidates based on the percentage of positive responses they received.

Hoelscher was among the highest-ranked candidates or judges, as were sitting Judges David Kaufman, who is running unopposed, and Jeffrey Goering, who is not up for re-election.

Ranked lowest were Seth Rundle and Linda Kirby, lawyers who will face off in the Aug. 5 Republican primary in a run for the Division 5 seat. The winner will oppose Democratic incumbent Gregory Waller in November’s general election.

Waller, one of the district’s long-serving judges, ranked 11th among 31 judges and candidates in the survey. He received positive feedback 86 percent of the time.

This year, 235 lawyers rated at least one judge or candidate. About 1,100 attorneys are registered to practice in the 18th Judicial District, said Karin Kirk, the Wichita Bar Association’s executive director.

In 2012, 362 lawyers participated in the survey.

Asked about the response rate, Kirk said the organization estimates only half of registered attorneys – about 550 – regularly appear in court. Comparing that figure to the number of responding attorneys pushes survey participation up to about 42 percent, she said.

Kirk said fewer judges up for re-election and fewer candidates could explain the drop from 2012, as could the inclusion of candidates in a hotly contested race for district attorney that year.

Division 19 candidates

The winner of the Republican primary in the Division 19 race will take the judgeship because there is no Democratic opposition.

Hoelscher, who was rated positively 93 percent of the time overall, said via e-mail that he is “pleased with the number of responses” he received and that he thinks the survey “keeps us all accountable to our constituents.”

Like Sherwood, this is Hoelscher’s first run for a judgeship. He said he worked in the Sedgwick County District Attorney’s Office before Wichita’s municipal law team.

“I try to treat everyone in a fair and courteous manner in my job. I think the results of the survey show I have been successful at doing that, even when I have to take a case to trial or recommend a punishment that is different than what the other side is seeking,” Hoelscher said.

One percent of his respondents felt Hoelscher was not prepared for court, does not clearly explain rulings and does not apply the law appropriately. Two percent disagreed that he demonstrates knowledge of the law and communicates in a clear and logical manner. He received no other negative responses.

Asked about her survey results, Sherwood said her scores were lower than she expected. Eighty-six people evaluated her.

Though she received more favorable ratings than unfavorable in eight of the 10 categories, nearly half answered that Sherwood does not demonstrate knowledge of the law, and nearly as many said she does not apply the law appropriately.

Seventeen percent disagreed that she is ethical. Sherwood took issue with that response.

“If I am that unethical, why has no one taken any action against me in the bar?” she asked in a phone interview with The Eagle. “If I am that unethical, why have I not heard any complaints or been reprimanded by the Supreme Court or been disbarred?”

Sherwood started her own dispute resolution practice in 1998 after law school and an 11-year career working in human resources for her family’s construction company.

She called herself a “neutral between hundreds of litigants and disputants for over 20 years.”

“I have sat as a judge pro tem in the protection courts and made decisions for the litigants there, and I do not come at this campaign from a myopic prosecutorial perspective,” she said.

Division 5 primary candidates

Rundle and Kirby – the Republican candidates vying for a chance to challenge Waller – each told The Eagle by phone that they’ve enjoyed positive feedback from clients and the public, despite low ratings from the attorneys who evaluated their work.

Kirby, who made an unsuccessful bid against Sedgwick County District Court Judge Phil Journey in 2012, said the survey inaccurately reflects her job performance. She said she has dealt with “not more than 30” lawyers who are local bar association members, so few “actually know the quality of my work.”

“By and large my practice is with clients ... and the attorneys are not in on that,” she said.

More than half of the 63 attorneys who responded about Kirby disagreed that she demonstrated knowledge of the law and that she communicated in a clear and logical manner. Her best score, 38 percent positive responses, was for being respectful, courteous and professional. Thirty percent agreed or strongly agreed that she treated people fairly.

Disputing the lowest of her rankings, Kirby cited more than two decades of professional experience that includes teaching law school, publishing a book and serving more than 3,000 clients and their families.

“I am very knowledgeable about the law,” Kirby said. “I am a person who ... (takes) time with my clients, and I make sure that they understand the law that applies to them.”

Political newcomer Rundle said overall he was pleased with his results. He was evaluated by 51 lawyers. He said he has 10 years of experience in military and civilian law, including nearly 2 1/2 years in his current role as a Sedgwick County public defender.

“I expected more people to rate me and have negative ratings,” Rundle said.

Rundle received his best rating in the survey – 55 percent positive answers – for treating people fairly regardless of race, gender or sexual orientation. Nearly half of respondents agreed that he is prepared for court.

On the other hand, more than half of attorneys who ranked him thought Rundle did not demonstrate knowledge or appropriately apply the law or communicate clearly and logically.

The fact that 37 percent of lawyers disagreed or strongly disagreed that he is punctual bothered Rundle most, he said.

“I feel like the amount of work that I put into cases exceeds a lot of my colleagues” in the public defender’s office, Rundle said. “I will go out to talk to witnesses, I will go out to locations, I will track down and actually get copies of search warrants and work on things that a lot of times don’t get done.”

He added: “So to get dinged by four out of 10 people for being lazy and late just irritated me.”

Lowest-ranking judges

As in past surveys, this year Journey was among sitting judges who ranked lowest, receiving positive scores only 39 percent of the time. Sixty-nine attorneys rated him.

Judge Tim Henderson, who has been recommended for public censure to the Kansas Supreme Court over harassment and gender bias claims made while he headed the district court’s juvenile department, ranked second lowest among sitting judges in this year’s survey. He received 41 percent positive feedback overall.

Neither judge is up for re-election this year.

Journey said he thinks his heavy workload influenced his rating – he handles about 22,000 traffic cases, 800 DUIs and 600 probation violation hearings annually – and that he may have seen improvement this year over past surveys. He was ranked lowest for punctuality and demonstrating a fair work ethic; more than half of lawyers also said he did not communicate clearly and logically and did not clearly explain rulings.

Journey called the survey process “flawed” because, among other reasons, its anonymous nature means attorneys aren’t required to back negative claims.

“If you go back and look over the last eight years, there’s a core of attorneys who, it doesn’t matter what I do, it doesn’t matter what I say, (they think) I’m still racist and whatever,” Journey said. He also said that, to date, none of his rulings has been reversed on appeal.

“I did not become a judge to be popular with lawyers,” Journey said. “I became a judge to help people and apply the law and improve the criminal justice system.”

For Henderson, the least favorable ratings came in the categories “is ethical” and “treats people fairly,” with around two-thirds of respondents disagreeing with the statements.

Asked to comment on his evaluation, the former head of juvenile court referred to the bar association’s 2010 survey, where he ranked near the top and had the most-improved scores of any judge over prior surveys that year.

“I am the same judge today as I was then,” Henderson said.

He said he could not comment further in light of the recommendation for public censure. He is now serving in Sedgwick County District Court’s civil department.

Differing views about the survey

Some judges and candidates interviewed by The Eagle about their evaluations voiced concerns about the accuracy and merit of the survey. Some said it had become too politicized in recent years.

“It’s not supposed to be a popularity contest, and it’s not supposed to be a way to destroy reputations,” Kirby, a Division 5 candidate, said.

Some called for the survey to be discontinued, while others wanted to see a more scientific process used or an audit system put in place to check whether an attorney has actually practiced before a judge. A few asked that opinions of court staff members and the public be included in the survey.

Others saw merit in the survey.

“As a judge, it’s sometimes difficult to obtain accurate feedback on how we are doing in our job,” Judge Chris Magana said in a written response to the survey. “The judicial survey is a good method of reminding us where we have room to improve and where we are doing well. I think it’s important to remain open to constructive criticism, or we run the risk of becoming too isolated and set in our ways.”

Judge David Dahl, who scored at the top of the survey in 2012 as a candidate and was ranked in the top third this year, called the survey “a valuable tool to help us understand where we can do some things even better in the performance of our duties.”

Wichita Bar Association president Jennifer Hill said via e-mail that a committee of judges and attorneys determined the “most appropriate manner by which to conduct this survey” and drafted its questions when it was created at The Eagle’s request in 2006.

She added that there is “no perfect survey and no perfect process” and that the bar association strives to provide the most useful information it can about judicial performance, based on attorney experiences, through the survey.

RELATED LINK: How judges responded to their survey evaluations (July 20, 2014)

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