Judge Dennis N. Smith was appointed as an associate circuit judge for the 21st Judicial Circuit in November 1995. He graduated from Washington University with a Bachelor of Science degree and received his law degree from Duke University. He was the mayor of Ellisville and also previously served as a family court commissioner.
Judge Smith served in Family Court during the majority of the current review period, from 2010 to January of 2013. Since January of 2013, Judge Smith has handled an associate criminal workload. Judge Smith is a member of the St. Louis County Bar Association. He is a member of Holy Infant Parish in Ballwin.
Attorneys who responded to survey questions rated Judge Smith on a scale of 1 to 5, with 1 representing “Strongly Disagree” and 5 representing “Strongly Agree.” More than 100 attorneys responded with respect to Judge Smith.
He received his highest scores for being prompt in rendering a decision (3.45), being prepared for court (3.41), starting courtroom proceedings on time (3.25), and issuing orders that were clearly written (3.24).
Judge Smith’s lowest scores were for: assisting parties in narrowing key issues in dispute (2.90); conducting the proceeding in a neutral manner (2.88); for decisions following logically from the evidence presented (2.81); and for considering arguments from both sides before ruling (2.79). The 21st Circuit Judicial Performance Evaluation Committee identifies these as areas of needed improvement.
The committee also reviewed two judgments entitled “Judgment of Modification of Decree of Dissolution” and a modification of a decree of dissolution, “Judgment,” written by Judge Smith and found the rulings were well-written, concise, and consistent with Missouri case law and statutes.
The committee reviewed survey responses submitted by 17 jurors who were seated in a jury trial before Judge Smith. Judge Smith received a unanimously favorable response from the jurors on questions relating to 10 separate criteria. The committee also reviewed surveys from three trial court staff members who gave Judge Smith favorable evaluations.
In reaching a recommendation, the 21st Circuit JPE Committee considered that Judge Smith’s attorney survey scores were among the lowest, as well as the categories in which his lowest and highest scores were registered. The committee also considered written comments contained in the attorney survey and heard personal commentary from attorneys who are experienced in practicing in Judge Smith’s court.
On September 3, 2014, the Missouri Judicial Performance Evaluation Appeals Panel convened pursuant to Missouri Supreme Court Rule 10.55(a)(6) and heard the appeal of Judge Dennis N. Smith from the recommendation of the JPE Committee of the 21st Judicial Circuit. The Appeals Panel considered all the documentary evidence that was before the circuit committee. The Appeals Panel interviewed Judge Smith and received information presented in his behalf. The Appeals Panel also interviewed the chair of the circuit committee about the circuit committee’s recommendation and how it was determined.
The judicial performance evaluation process is intended to evaluate judges based on their attainment of identified performance standards. The process is not intended to evaluate judges based on whether a particular judge’s evaluation scores were higher or lower than other judges. Ranking judges against each other is inconsistent with best practices from JPE model programs and is not supposed to occur in Missouri. Yet, Judge Smith and two other St. Louis County associate circuit judges were given negative recommendations by the circuit committee because they were deemed to fall below a statistical range compared to the other nine St. Louis County judges evaluated in 2014. No other JPE evaluation committee in Missouri used this method. The JPE committees for Jackson, Platte, Clay, and Greene counties, the City of St. Louis, and the appellate committee did not make negative recommendations for judges who were at the lower end of a statistical range compared to other judges.
The judicial performance evaluation process is supposed to be fair and impartial in its application statewide. The use of a method by the 21st Circuit JPE Committee that resulted in one-fourth of the judges being given a negative recommendation was an inappropriate methodology. To apply this method statewide would mean that a number of merit-selected judges would be given a negative recommendation across the board during every evaluation cycle, which is not how the system is intended to work under any known JPE standard and there is no precedent for it in Missouri. Therefore, the negative recommendation for Judge Smith should be reversed.
The next question before the Appeals Panel is whether Judge Smith’s evaluation should be remanded to the circuit committee or decided by the Appeals Panel. Six of the seven members of the Appeals Panel are the chairs of the other six JPE committees, each of whom were elected by their respective committees and collectively represent 72 diverse JPE committee members, 36 of whom are lay persons and 36 of whom are lawyers. The Supreme Court has entrusted the chairs with appeal authority under Rule 10.55(a)(6). There is no provision in Rule 10.55(a)(6) for a remand. Therefore, final authority over a matter under appeal rests with the Appeals Panel.
Having considered the evidence and being fully advised, the Appeals Panel determines that Judge Dennis N. Smith should be given a “do retain” recommendation for 2014.
 On the advice of a nationally recognized JPE consultant, Missouri changed its evaluation methodology to discontinue rating judges on whether they were perceived to be “average” or above or below “average.” If a judge meets the objective performance standards evaluated in the JPE process, he or she should be recommended for retention. The JPE process does not use a bell curve or similar method under which judges at the lower end of the curve are presumed to fail.