Chief justice addresses Judicial Conference, The Missouri Bar during St. Louis annual meeting

28 September 2006

Chief justice addresses Judicial Conference, The Missouri Bar during St. Louis annual meeting

Michael A. Wolff, 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 September 28, 2006, in St. Louis.

President Copeland, President-Elect Baird, wonderful colleagues of the Supreme Court and fellow judges, fellow members of The Missouri Bar – including the family of our newest member, Lloyd Gaines – and distinguished guests: I am honored to be here.

We’ve had an interesting year together. Last year, we discussed the importance of preserving the rule of law and our system of government against outside forces that might seek to undermine the impartiality, fairness and strength of our legal system.  We all know how important it is to educate the public and ourselves about the rule of law.  

So how’s it going? you ask.  Well, let's see: A recent poll revealed that 77 percent of Americans could name two of Snow White's seven dwarves, but only 24 percent could name two justices of the United States Supreme Court. More Americans could name the original Three Stooges than could name the three branches of government – and no, Shemp did not count as a correct answer ... in either category.

Another news item, on a more somber note: Justice Sandra Day O'Connor said in a recent interview: "I've lived a long time, and in my lifetime I have never seen such hostility toward judges coming from the [the] Legislative [branch], and a little bit from [the] Executive [branch] ... and especially the states."

Last year, for instance, I told you about the JAIL for Judges initiative that was being circulated in South Dakota. The proposal would amend the state constitution to allow special grand juries to indict, convict and sentence judges for making unpopular decisions. Unfortunately, JAIL for Judges is no joke – it's on the South Dakota ballot this November. 

And it's not just South Dakota. Colorado has a proposed constitutional amendment on the ballot to create a 10-year term limit for judges. There is a proposal in Montana to amend the constitution to provide for petitions to force recall elections for judges. That proposal is characterized by one of that state's judges as: "perpetrated by paid, out-of-state, migrant signature gatherers."  

In our own state, we regularly have proposals in the general assembly – usually imported from elsewhere – to abolish or cripple the nonpartisan court plan through various measures that would make our state's courts more subject to political interference.

What these proposals have in common is that they would weaken or destroy our constitutional system of checks and balances and would make court decisions entirely subject to popular will. Gone would be the central ideal of the rule of law – that the constitution and laws exist to protect all of us. Instead we would be forced into a system that protects only the interests of a transient political majority or an intensely interested and influential minority.

Justice O'Connor, in an interview shortly before her retirement, said: "The Framers understood quite well that without judges who could enforce the Constitutional rights and guarantees without fear of retaliation, the Constitution would be meaningless. ... The many calls for retaliation against judges for rulings in particular cases run directly counter to the concept of the Framers of the Constitution."  

Our challenge, as lawyers and judges, is to maintain the integrity of the third branch, the judiciary, and to help insulate courts as best we can from political pressures that may affect – or may be perceived as affecting – courts' decisions. The correctness and correctability of our decisions must be dictated by law that applies equally to everyone, not by a political process based on popularity. The majority is not always right, and the minority is not always wrong. It is the rule of law, equally and equitably applied, that we Americans choose to bridge the differences in our society and to ensure civic order.

To best carry out our shared mission of maintaining the rule of law, we must start by simply performing well on a day-to-day basis when we interact with the public. My predecessors were absolutely right when they spoke to you about the importance of civility and professionalism.

In addition to performing our jobs well, though, how can we accomplish the mission of protecting and improving our legal system?  In dealing with legislators and other influential leaders, I find that lawyers and judges are most effective at the local level. Many of our judges invite local legislators to their courthouses and show them how the courts operate. In this way, courts and judges can be seen as constituents and as fellow public servants. By contrast, when judges show up in the capitol, they are seen as supplicants – just one of many special interest pleaders. But in the political-governmental marketplace, judges have nothing they ethically can trade. Similarly, lawyers can perform valuable service to our legal system by getting to know their legislators on the local level and by becoming advocates for maintaining a first-rate legal system.

It has been 100 years since Roscoe Pound's famous speech, "The Causes of Popular Dissatisfaction with the Administration of Justice." We should operate on the assumption that there always will be some dissatisfaction with the administration of justice. That inheres in the nature of what we do. But we need to engage men and women of good will strategically and continue the dialogue with the public in an effort to keep our system of justice free of undue political influence.

Keeping our system of justice free of such influence requires us to use the commodities of the political marketplace – money, voting blocs, information – that others possess, without giving anything in exchange except fair and impartial justice. That is a balancing act upon which the health of our democratic republic depends, and one in which all of us must become involved.

These threats are real. The great Supreme Court Justice Louis Brandeis once noted: "The greatest dangers to liberty lurk in insidious encroachment of men of zeal, well-meaning but without understanding."  

We should not doubt the sincerity of the "men of zeal" who make such proposals. But I disagree profoundly with their goal of making the judiciary a tool of a particular segment of our society or special interest group.

While some of these people act intentionally to stack the deck in their favor, there also are those whose actions against our legal system are done, in their minds, out of an effort to "improve" our system of law, as they see it.  

I ask two questions: First, does the public know and understand what we’re doing?  Second, do we know what we’re doing?

Fortunately, as to the first question – and I hope I am not stealing his thunder – our incoming Bar president, Ron Baird, has made civics education a main theme of his presidency. Perhaps, with a little luck and a lot of intellectual elbow grease, we might continue to find allies among some of these well-meaning persons of zeal where previously we had none. This water is not uncharted – the ongoing outreach efforts of many of you in this room to fellow civic leaders, business leaders and legislators are making a difference. Those efforts are improving the understanding of Missouri's courts and Missouri's legal profession by leaders in both the public and the private sector, many of whom previously had not taken much interest in the structure of our legal system – or when they did take an interest, it was not necessarily a fully informed one.

While we have been doing a much better job in recent years of reaching out to the public, I believe we still have a ways to go. We still can do much to frame the current and future debates over the rule of law in a more positive light.

If we want to be seen in a better light, however, we also must be sure that we like what we see when that light shines on us. To that end, we must continue to be responsive to the public's needs, and we must evaluate ourselves honestly.

So, as to my second question, do we know what we're doing? To understand where we are and where we are going, I accepted an offer from the American Bar Association's Standing Committee on Judicial Independence to conduct a thorough examination of our Missouri court system – at no cost to us. This is the first such study that ever has been done of an American court system. It used criteria the ABA developed for advising judicial systems in emerging democracies around the world about what constitutes an adequate and effective judiciary. In addition to studying the structure of Missouri's courts, the assessment included in-depth interviews with civic leaders, political leaders, journalists, bar leaders and others about their perceptions of the strengths and needs of the Missouri judiciary. Some of you may have participated in the survey – I have no idea who did, as the ABA committee rightly kept us in the dark until the results were complete, and the responses were all anonymous. So if you did, I thank you for your involvement, your candor and your insights. I also thank The Missouri Bar for its support.

I especially thank you for your candor. We must have intelligent, critical voices within our ranks speak up about issues before those same issues sneak up on us. I believe that the ABA assessment gives us a chance to re-evaluate ourselves, to shape our future, and to show the public that we are not in an ivory tower or an immovable institution and that we will respond in meaningful ways to thoughtful criticism and suggestions.

The assessment report is a strong foundation for strategic planning, but this process requires us to make a mental shift. The act of arguing and deciding cases is inherently a reactive process. The act of shaping the future calls for thoughtful, deliberate and, most importantly, proactive action.

Fortunately, most of what the ABA assessment had to say about us was quite positive. We were rated favorably on our professionalism, the quality and tenure of our judges, and our basic unified structure. Our ongoing plan for the use of court technology also was well received. I would add, by the way, that we are using this technology not only to make our courts more efficient but also to let the public see who we are and what we do: Last week, we launched a new Web site that will, when completed, give the public and the profession ready access to who we are, where we are and what we do. I invite you to stop by the Missouri Courts booth and give us your suggestions.

Most of the areas of criticism in the ABA assessment involved funding issues that, for the most part, are out of our direct control but nonetheless are perceived as being under our collective charge. Although neither the Court nor the Bar controls such issues, we ignore them at our own peril, for we will – rightly or wrongly – most certainly be blamed for any perceived failure.

For example, the ABA assessment noted that many of our rural courthouses require upgrades to court security, basic improvements to their physical condition and better access for persons with disabilities. Those of you who practice in these courthouses know what I'm talking about, and you undoubtedly are aware that such issues are handled mainly by the counties. The public, however, neither knows nor cares about such distinctions. Our fellow citizens just want the system to work – so we must do what we can to make that happen.

As a further example, an extremely important issue cited for improvement in the ABA assessment is the state public defender system, where frequent turnover and high caseloads are impairing our ability to do justice. I am grateful to President Doug Copeland and his Missouri Bar committee's efforts to address this problem and to those of you who volunteered your time to help with the caseload.

To avoid crises like this in the future, we must use the ABA assessment as the beginning of a deeper dialogue – one that fundamentally re-examines the legal profession and the judiciary in the context of the challenges of the 21st century. In this dialogue, we cannot leave anything off the table. And we should offer nothing arbitrarily for sacrifice, either. I have no predetermined outcome for how we should move into the future. I merely know that it must be done – and done as thoroughly, as fairly and as openly as possible.

The judiciary does not belong to its members or its staff; rather, it belongs to all the people of this great state. Judicial independence – a frequently misunderstood term – is about fair and impartial courts and judges being accountable to the law and the constitution, not to the will of political or other special interests. Judicial independence is not about judges. It really is about all the citizens who come before the courts seeking prompt, fair and impartial resolutions to their disputes.

A key component of this process will be Missouri's first-ever judicial weighted workload study. The National Center for State Courts has agreed to conduct the study, which will assess the relative needs and demands for trial court resources on a statewide basis. In our recent dealings with the general assembly over the issue of judicial resources – dealings, by the way, that were not initiated by us – we found legislators quoting caseload statistics in wildly varying fashions to make whatever point they were seeking to make for their own constituencies.

If we want to take the lead on this issue before the general assembly takes it from us, we must perform this difficult analytical task or risk losing institutional credibility. We cannot adequately tell our story or demonstrate our value to society when the only evidence we have is based on assumption and supposition. We have an obligation to shape the future of the justice system ... not for the bar or the courts, but for all of us – for all the people of this state.

Conducting this judicial workload study will give us a common framework for internal discussions as well. As it is now, judges or lawyers from one area of the state can tout their own achievements while tacitly giving approval to criticism of other areas of the state. Such discussions are counterproductive and ultimately damage us as a whole. It is difficult enough to mitigate the growing institutional attacks noted by Justice O'Connor and others without cannibalizing ourselves.

We are one court system. We must be committed to maintaining adequate resources – personnel as well as infrastructure – in every part of our state to best meet the needs of all Missourians.

I do not believe the weighted workload study will produce any doomsday scenarios. Based on my experience with the budget in Missouri, compared to the budgets of other judiciaries across the nation, we live within our means much better than most. Considered in that light, this study will present us with an independent set of facts – based on solid, statistical research by an outside organization – on which to stand unified in support of our branch of government, when dealing with our fellow branches of government and the public.

Of course, there are certain basic principles of justice that cannot be altered by the results of any study or survey. Perhaps the most important of these principles is carved in stone on the front of our Supreme Court Building in Jefferson City: "Ubi jus ibi remedium" – a Latin phrase roughly translated: "Where there is a right, there is a remedy."  This principle is preserved in the Missouri constitution by the open courts provision of article I, section 14, and it must never be abandoned.

Nothing we do should act as a barrier to justice, under any circumstances, to any person or place. To speak more specifically, the county in which you live never should determine the level of judicial access or judicial resources that you have. We must strive for adequate resources for every county and – above all – adequate resources for promptly and competently resolving every dispute that any individual, business or government brings to us. I have the utmost confidence that the weighted workload study will help us accomplish this critical mission.

The efforts we make together to improve our legal system certainly are necessary. But I ask you to consider another very important question: Are these efforts sufficient?  Is the legal profession in this state up to the challenges to the structural integrity of the system that have come to some of our sister states?

The challenges I have mentioned today are great, but the consequence to all of us of not being prepared to face them head-on is a far greater threat.

I believe that the public, when properly informed, appreciates the value of a fair, impartial, efficient and effective legal system – and I have every confidence that our ongoing evaluation and planning process will reveal that our system has the capacity to meet the needs of all of our citizens. We must act with wisdom and integrity, looking toward what is truly in the best interest of all the people of this state.

To return to my questions: Do we know what we’re doing?  Yes.  Does the public know and understand what we’re doing?  With your help, they’re getting there.  Are we fully prepared to meet the challenges that we may face?  That’s the most important question, and it's the one we need to keep asking.

Together, with each of us here today, from all corners of our state, we have the opportunity to renew our dedication to the notion that "where there is a right, there is a remedy" and to re-dedicate ourselves to preserving this fundamental principle.

Thank you very much.