31 January 2007
Law Matters — Judging the Judges: Improving Missouri's Electoral System
The following reflections of Missouri Chief Justice Michael A. Wolff make up his January 2007 Law Matters column.
Every election season leaves a sense of relief and, after a time for reflection, some thoughts on improving the electoral system for choosing and retaining judges. All Missouri state judges face the electorate, either in direct partisan elections or in yes-or-no retention elections.
The big question: How do voters find out about the judges on whom they are voting? I addressed this subject in the annual State of the Judiciary speech that I made to the General Assembly recently. Here are some thoughts:
Today, most of Missouri's judges – those who serve in the trial courts in 110 counties – are elected directly by the people. Judges in St. Louis, in four urban counties and on the appellate courts serve under the Missouri nonpartisan court plan, adopted by the voters through initiative petition in 1940. The governor initially selects these judges from a panel of applicants nominated by a nonpartisan commission of citizens, attorneys and a judge. Each of these judges is subject to a yes-or-no retention election after serving one year in office and periodically thereafter before serving any additional term in office.
Unlike legislators, judges never should be elected to carry out specific campaign promises. Campaign promises are appropriate for those running for legislative or executive office; in fact, they are essential in helping voters fully evaluate these candidates.
But judicial elections are different. After all, if you have a lawsuit, would you really want the judge in your case to promise a position contrary to yours before hearing you present your evidence and legal arguments? No, you would not ... not any more than the local football coach would want to arrive at a game and discover that the referees have promised to help the other team.
The only promises judicial candidates should make are to follow their constitutional obligations to be accountable to the law, to administer justice fairly and impartially, and to remain free from political influence and intimidation. When you appear in court as a litigant, you have a right to expect that the judge will decide your case on the facts and on the law regardless of his or her personal beliefs – regardless of political, financial, or other special influences or interests.
Informing the Voters
To achieve and maintain this vision, I want to improve our system of accountability by helping to better inform the public at election time.
Voters may get information, or misinformation, through campaigns. In most of Missouri's counties, the populations are small enough that the public can get to know their judges and judicial candidates without costly campaigns.
However, for trial courts in the larger counties, whether included in the nonpartisan court plan or not, as well as for the Supreme Court and the Court of Appeals, I believe we should enhance the opportunities for the public to get to know these judges, on whom they vote, and to have an evaluation system that provides timely critiques for the benefit of both the public and our judges.
Currently, The Missouri Bar, the Bar Association of Metropolitan St. Louis and the Kansas City Metropolitan Bar Association conduct judicial evaluation surveys for every judge on the ballot for retention in nonpartisan plan jurisdictions. The results are available to the media, to the public in printed form in various locations, and on the Web sites of the Bar and the local bar associations. The bar entities do all they can to publicize the results given the resources they have, and they should be given great credit for continuing to undertake this valuable service.
Most of our citizenry, however, remains uninformed in such elections, mostly because they don't know where to look for information, and this may result in a lack of confidence about our system.
Revising Judicial Evaluations
We should try to remedy the lack of information about judges. The Missouri Bar and local bar associations are assembling a fair cross-section of citizens – nonlawyers as well as lawyers – to review our judicial evaluation system, to look at systems in place in other states, and to propose a model that gives useful information about judges that can be communicated effectively to the electorate.
I emphasize two aspects of judicial evaluations. First, a judicial evaluation system should include not just the voices of attorneys, but also the voices of jurors, litigants, witnesses, court staff and others who have direct experience with the judges.
Second, while the results of a judicial evaluation system should be made available at election, the true intent of any evaluation system is to assist in improving both individual and institutional performance. These evaluations should be timed both to allow judges to have an opportunity to improve as a result of the review and to give voters information before elections where the judges' futures are decided. I believe that the vast majority of judges – who are conscientious, able and take pride in their work – will be rated highly. And even the most highly rated judges will learn something useful about how they do their jobs.
My hope is that the group of citizens convened by the three bar entities will propose a judicial evaluation system that is driven by nonlawyers as well as by the members of the Bar; that is independent and nonpartisan; and that produces credible results made widely available to the voting public. Stay tuned for the results.