27 September 2007
Chief justice addresses Judicial Conference, The Missouri Bar during Springfield annual meeting
Laura Denvir Stith, chief justice of the Supreme Court of Missouri, delivered the following address during the opening luncheon of the joint annual meeting of The Missouri Bar and the Judicial Conference of Missouri Sept. 27, 2007, in Springfield.
President Baird; esteemed judicial colleagues; fellow members of The Missouri Bar; students; and other distinguished guests: I am honored to be here. When I started my legal career 29 years ago as a Supreme Court law clerk, little did I know that one day I would have the opportunity not only to be a Supreme Court judge myself but also to address the bench and bar as the state's second female chief justice – and to be lucky enough to work not just with Ron Baird but with the Bar's first president of color, Charlie Harris. Congratulations, Charlie.
By and large, my journey – from clerking to practicing law in Kansas City to serving on the court of appeals and ultimately returning to where I started – the Supreme Court – in 2001 as a judge – has been wonderful. My year as a law clerk played a great role in shaping my personal and professional future. I met my future husband, Donald Scott, that year as he clerked for Judge Welliver. Don now practices law in Kansas City, and I'm delighted he is able to be here with me today. That year, I also had a professional role model in Judge Seiler, who inspired me and excited me about the law. I finished my clerkship year determined to give as much of myself to the law as my judge had done, and maybe, someday, to follow in his footsteps by becoming a judge myself.
Of course, at the time, it hardly seemed possible that I could become a judge. There were no female appellate or Supreme Court judges in Missouri, and very few elsewhere. But now, for the first time in Missouri's history, we have the great fortune of having three women on the Supreme Court, with the recent appointment of Judge Patricia Breckenridge. Welcome, Patty.
I thank Governor Blunt for his appointment of Judge Breckenridge to the Court and for the respect for her and the nonpartisan plan that demonstrates. I served with Patty during my tenure on the Western District, and I can say with certainty that she embodies the professionalism, fairness and impartiality we all desire in our judges. We are privileged to have her join us.
While I am thrilled at the increased gender diversity on our Court, I note that with Judge White's retirement, there are now only 20 blacks serving on state high courts anywhere in the country. We all must work to ensure that our profession permits and encourages all of its members, especially people of color, to reach its highest echelons. With the retirement of Judge White, though, my feeling of loss is more personal. My colleagues and I will continue to miss his thoughtfulness, his principled approach to legal issues and his wise counsel.
Well, every time our court adds a member, the court dynamic changes. But one thing stays the same; we’re always busy. I first learned how busy we would be when Judge Price, who was chief justice when I was appointed, called me a half-hour after the governor announced my appointment. It was a Friday, and Judge Price said, "Congratulations, Laura. Welcome to the Court. I have a marshal driving briefs up to you as we speak; you begin sitting with us Tuesday."
I gave Judge Breckenridge an extra two weeks, but Patty, I'm afraid those weeks are now up. Carl, will you please come forward. Patty, I’ve asked Carl, one of our marshals, to bring you these briefs – as you might have guessed, they are for oral arguments. You begin sitting with us Tuesday.
Being chief justice
Judge Breckenridge is not the only one with a new role at the Court. As you know, I took over as chief justice on July 1. My predecessor, Judge Wolff, told me things would be pretty slow until we began hearing cases in September. Yeah, right, Mike. I noticed you kind of forgot to mention that whole judicial selection stuff! But don’t worry – turnabout is fair play. As chief justice, I get to determine the chairs for Supreme Court committees, and, by coincidence, I have Mike penciled in for nearly every one.
Much of my time these past few months has been spent in my new role as chairwoman of the Appellate Judicial Commission. Due to the near-simultaneous retirements of Supreme Court Judge Ronnie White and Court of Appeals Judges Gary Gaertner Sr., Phil Garrison, Eddie Smith and Bob Ulrich, the Appellate Judicial Commission has had a lot of work to do. The wonderful citizens and lawyers with whom I serve on that commission – including Springfield Metropolitan Bar Association President Steve Garner – have considered more than 75 applications for three judicial vacancies so far, with two more yet to go.
Wait, make that three more – we also must select nominees to fill Judge Breckenridge's vacancy, though I suppose that's a problem of our own making. By the way, I hope none of the rest of you judges in the audience is thinking about leaving the bench – or at least not before, say, July 1, 2009, when you can congratulate Ray Price on becoming the next chief justice.
Reaching out to preserve justice
While the commission's task historically receives little fanfare, the process of nominating three persons to fill Judge White's vacancy has resulted in – surprising amount of – I'll call it "intergovernmental correspondence" – as well as heightened media and public attention to Missouri's nonpartisan court plan and the role of the courts.
I already had announced that civic education about the essential role that impartial courts play in our democratic society would be one of my priorities as chief justice. But the heightened public attention has provided an excellent opportunity for me to continue the highly praised efforts of President Baird, and Judge Wolff, and scores of other Missouri judges and lawyers, to better educate the public, and each other, about this issue.
When I first began to plan this speech, my remarks about civic education and the nonpartisan plan would have ended here. But given all the attention – national and local – that the nonpartisan plan has drawn in the last few months, it is important to address briefly how Missouri seems to be fitting into the broader national attacks on a fair and impartial judiciary, and the serious repercussions these attacks might have on our administration of justice here in Missouri.
National court observers tell us Missouri is at the center of the storm. Why the sudden interest? Well, as you know, Missouri is the birthplace of merit selection for judges. In the past few months, special interest groups, here and in Washington, D.C., have begun campaigns attacking the Missouri plan. Apparently these outside political and special interest groups believe that if they can kill merit selection here in Missouri, it may sound its death knell throughout the country. So these groups have come to Missouri to inject politics into judicial selection once again. But we know, through both tradition and the Missouri state constitution, that Missourians reject this approach in favor of minimizing – not maximizing – the influence of partisan politics in judicial selection and ensuring that judges are selected who will administer justice fairly, impartially and according to the rule of law.
Missourians do not want to spend literally millions of dollars for a single seat on the court, as they do in some other states. Missourians want stability in their judicial system, so that businesses, families, all Missourians can depend on the courts to be fair, deliberate, just and consistent, without regard to the bluster of partisan political winds – from any side of the aisle.
Your past actions prove that you are ready for the challenge ahead. Bar leaders, civic groups, members of the business community and the public have rallied time and again in the past few years against attacks on merit selection. The state is at a critical point in its history. Large portions of very serious money have been – and will be – pouring in from out-of-state interests. Now we find ourselves in the shoes of our colleagues in Colorado and South Dakota, where last year, alliances of lawyers, civic groups, businesses and other concerned citizens raised – and spent – millions of dollars to defeat anti-court ballot proposals. Perhaps drawing from those states' experiences, leaders in Missouri's legal, business and civic communities tell me they are strengthening their own alliances to fend off the partisan and interest group attacks now brewing here.
I will not spend more time today going into the history, purpose and operation of Missouri's nonpartisan plan. You can find that information in remarks I made to the Senate Rules Committee two weeks ago, copies of which are available at the Missouri Courts booth here at the annual meeting and on the courts' Web site.
The bottom line is that for nearly three-quarters of a century, Missouri's nonpartisan court plan has worked well in attracting high-quality judges in the least political way and in ultimately giving Missouri voters, not the governor or legislature, the final say. We all must do what we can to protect our legacy from special interests, to preserve our gift to the art of governance, and to safeguard our citizens' rights to fair and impartial courts.
Of course, as Laurence Hyde – who served the Court under both the elective and nonpartisan systems – famously stated, "No plan is perfect, but I don't see how anybody could devise a better one."
Improving judicial evaluation and responsiveness under the nonpartisan plan.
A key component to the success of Missouri's nonpartisan plan is giving voters the final say in whether a judge should remain a judge; we talked about that this morning at the plenary session. For voters' involvement to be more meaningful, however, we believe we can improve the way we evaluate judges. Last year, the Bar began asking lawyers to rate judges on more specific factors and began a pilot project of having jurors rate the judges too. Both innovations were a big success. In January, the Court asked the Bar to undertake a comprehensive review of how other states evaluate their nonpartisan judges and to consider emulating states that obtain feedback from jurors, litigants and others with first-hand knowledge of how judges perform their duties. Just this week, the Board of Governors approved a report that addresses these issues, and the Court looks forward to reviewing it and working with the Bar in the coming months.
Equipped with improved judicial evaluations, the courts and the Bar must face the major challenge of communicating the results of those evaluations to the voters. The Bar now spends more than $100,000 per election cycle to conduct the evaluations and distribute them – online, to the media, in libraries, even in supermarkets. Despite these tremendous efforts, more needs to be done. As you heard this morning, Arizona has a compelling solution – mailing detailed judicial evaluations to every registered voter in the state. But this would not be feasible here, unless Missouri could equal the roughly $1 million that Arizona appropriates for that effort each election cycle.
Regardless what public or private funding is ultimately made available for that purpose in Missouri, I am hopeful that civic and reform organizations, like the League of Women Voters and the chambers of commerce, can help us better convey this important information to the electorate. I also invite each of you to share with the Court and Bar your creative ideas that will help us ensure that the public receives – and absorbs – information about the performance of their judges.
Managing judicial resources more wisely
Another area for improvement lies in the allocation and utilization of judges. In the past few years, we have grown increasingly concerned that there was no consistency in our understanding of our courts' workloads or how best to distribute our resources. We can measure population, and the statutes require the addition of an associate judge when a county grows significantly. We also can count cases, but neither population nor numbers of cases bring the picture into greater focus. As your own experience confirms, a 15-minute traffic ticket hearing does not place the same burden on our courts as a two-week murder trial, but both represent just one case filed.
Without a clear understanding of the burdens on our judicial resources, it was difficult for us and our constitutional partners in the legislature to know whether we were utilizing our judicial resources efficiently.
To help us get a truer picture of our needs, a study was conducted by the National Center for State Courts, the nation's expert in judicial weighted workload studies. I want to thank all our trial judges across the state for their commitment to the study, which required each of them to log every minute of their day for four weeks and obliged many to participate in focus groups. I especially want to thank Judge Byron Luber of Pemiscot County and Judge John O'Malley of Jackson County for leading the steering committee of judges who assisted the National Center. Please take the time this week to stop by our Missouri Courts booth, and you can see the full results.
Briefly, these results show that nearly half our judicial circuits have a good balance between workload and the number of judges or commissioners who are available to complete that work. Six circuits – some urban, some more rural – need more judges, but we already are assisting them with their workload through our judge transfer and senior judge programs. Only two circuits – again, one urban and one rural – have more people than they need to manage their current case loads – and only if commissioners are also considered – but both are willing to transfer judges to nearby circuits that need help.
This study does not give a reason to reduce the number of judges. Rather, this study shows that our judges work unusually hard, and that – ideally – more judges should be available statewide. Aware of the state's fiscal resources, however, we view this instead as a challenge to engage in strategic planning as we look for ways to collaborate across circuit boundaries to use our judges more efficiently and effectively by using them cooperatively.
But as we do so, we must be sensitive to the concerns of lawyers who may be unfamiliar with the judges transferred to their circuit. Some of these attorneys routinely disqualify these transferred judges, making the transfer system less effective and doing nothing to help ease the burden on the courts.
Some have suggested eliminating automatic disqualification, at least as to transferred judges. Indeed, Missouri has become almost unique in allowing automatic disqualification. But I believe less radical change may suffice. After all, as a lawyer, I rather enjoyed the chance for automatic disqualification myself.
I spoke with the presiding judges this week about planning regular transfer programs between particular circuits, empowering the presiding judges to have a key role in deciding which judges will be transferred and where they will go. That way, the local lawyers can get to know particular judges who are transferred to their circuits on a more regular basis. No trial judge would have authority to decline such transfers, as indeed they do not now under the Missouri Constitution.
The steering committee that oversaw this study solicits from all of you – judges and lawyers alike – additional creative ideas for making more efficient use of our judges as the courts strive to meet the growing judicial needs of all Missourians.
Ensuring access to justice – the public defender system
Meeting the needs of all Missourians also requires us to ensure that each has access to court services and appropriate legal representation. Part of that involves shoring up Missouri's public defender system, where frequent turnover and high caseloads are impairing its ability to assist indigent defendants in many areas of this state. We are grateful to those of you who have volunteered your time to help with the public defender's burgeoning caseload. We also are grateful to the Public Defender Task Force, chaired by Doug Copeland and made up of lawyers, judges, legislators and lay citizens. The task force continues to explore long-term solutions to the growing problem of providing constitutionally adequate legal representation in criminal trials.
So far, a long-term solution has proved elusive. Proposals being considered include: limiting by court rule the workload of public defenders; reducing the types of cases in which public defenders are appointed; working with prosecutors to eliminate incarceration as a potential punishment for certain offenses; and greatly increasing funding from the legislature. I suspect the ultimate solution will be an amalgam of these approaches, but, once again, solicit from you your creative suggestions for solving this serious problem our criminal justice system is facing.
Ensuring access to justice – self-represented civil litigants
The problem of finding adequate counsel extends to civil litigants as well. Our legal services corporations assist many deserving individuals, but their ability to help is limited. They can assist only people who earn less than $13,000 per year, and even then, only 27 percent of those who qualify actually receive services, mostly in cases involving domestic violence in families with children.
More and more self-represented litigants are appearing in Missouri's courts, often arriving with divorce kits they bought off the Internet that do not comply with Missouri's legal requirements. Sadly, many of these people may have spent more on useless forms than they would have spent hiring an attorney. Frankly, we must do better, both with our time and, when we can, with our money. We must find creative ways to help Missourians avoid being duped into buying these useless forms and believing they can handle complex cases themselves.
During the last five years, joint commissions of the bench and bar have been reviewing pro se litigation in family law cases, and have made many valuable recommendations. Earlier this month, the Joint Pro Se Implementation Commission launched www.selfrepresent.mo.gov, a Web site that provides a model of certain educational materials and forms the commission has asked be made available to self-represented litigants. The documents cannot be downloaded until prospective litigants go through an educational program that alerts them to the critical risks of attempting to proceed without an attorney.
The site also will provide a means for individuals to find lawyers and other legal resources available in their communities as a preferred alternative to self-representation. This provides local bar associations the perfect opportunity to design legal assistance networks to meet the unique legal needs of these limited-means individuals. Setting up such networks will reflect credit on those who take part in it and will help litigants find affordable legal counsel.
Again, I urge all of you: Visit the new Web site; examine the resources it provides and the proposed forms package; and let us know if you have suggestions for further improvements.
Other electronic improvements
Your good comments have led to other improvements in Missouri's online legal resources. Important to me, the Supreme Court has just begun offering streaming audio of its oral arguments – for free. It used to cost about $100 a year, but now the Court provides it for free, and you can get to it from a link on the Missouri courts' home page and listen to any argument you want. We hope you, your clients, the media and the public will take advantage of these and the many more resources the Missouri courts Web site has to offer.
I am also pleased to announce our electronic case management system is nearly complete statewide. St. Louis County will be online later this fall, Greene County next spring. That will mean that anyone with an Internet connection then can obtain, through Case.net, public case information from the Supreme Court, the Court of Appeals and all our judicial circuits. In addition, just last Friday, Case.net started displaying garnishments. We hope both attorneys and the public will find these new features useful.
In conclusion, technology merely helps us accomplish our mission of providing fair and impartial justice in the nearly million cases that come before our courts each year. Let none of us ever forget that each of these cases is the most important case in the state to the litigants involved. I look forward to working with all of you during the next year as we share with citizens in all of Missouri's communities why they should be proud of their system of law and as we collaborate in finding ways to make our system even better.
As lawyers, continue to take pride in what you do – you always will remain the primary contact between the public and the law. Through our efforts, we can preserve the honor of practicing law before fair and impartial courts in Missouri for generations to come. As the motto above the door of our red brick Supreme Court building in Jefferson City so astutely reminds us every time we walk beneath it, "the law has honored us – may we honor it." Thank you.