Chief Justice speaks to lawyers during The Missouri Bar annual spring meeting

12 May 2006

Chief Justice speaks to lawyers during The Missouri Bar annual spring meeting

Chief Justice Michael A. Wolff delivered the following luncheon address during the annual spring meeting of The Missouri Bar, held May 12, 2006, in Jefferson City, Mo.

At the close of the Constitutional Convention in Philadelphia in 1787, as the public anxiously awaited the results, Benjamin Franklin emerged from the room and was asked directly: "Well Doctor, what have we got, a republic or a monarchy?"  "A republic if you can keep it," Franklin said.

We are now 220 years into this experiment of the American republic, and the question remains whether we can keep it.

When I met with The Missouri Bar at its annual meeting in September in Kansas City, I talked about how our republic was founded on the notion that a system of checks and balances is essential to protect the rule of law and our basic human liberties. I asked that we all make a genuine effort to become passionately engaged in civics education … to remind people of the critical role our courts play in our democratic system of government.

Eight months and one legislative session have passed since then. One essential truth has emerged from our common experience during this time: As a profession, and as a judicial branch of government, we need to engage in a critical discourse and plan our future.  If we do not plan our future, others will plan it for us, and neither we, nor the public, nor the republic will be well served.

During these months we have done much to spread the word about the rule of law and the role of the courts.  It is clear that many still need to be reminded that there are three equally important branches of government.  The judicial branch, as a co-equal branch of government, enforces and applies the laws passed by the general assembly and carried out by executive branch officials.  The Judiciary enforces the constraints of the state and federal constitutions to protect the rights of each citizen, even, on occasion, by upholding the mandates of the constitution against the popular will.

To perform this essential function in our government structure, courts must be fair and impartial, free from undue political influence, and prompt in their decisions.  As one of the delegates to the Constitutional Convention in 1787 wrote: "The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society."

History teaches us that the system of checks and balances that is so key to our American system of government creates a natural tension. No branch of government dominates to the exclusion of the others. Each branch must have mutual respect for the prerogatives of the others. If we cannot achieve this, we run the risk of despotic government that Franklin and other founding fathers so wisely opposed.

During this legislative session and those before it, however, we have seen proposals that would fundamentally weaken or destroy this system of checks and balances. One proposal would have changed the constitution to move impeachment trials to the senate. Let me be clear: the only stated purpose for this proposed amendment was the removal of judges from office for political reasons due to their unpopular decisions – no other reason for this change in our constitutional structure has been articulated.  Another proposal would have eliminated the jurisdiction of the courts to hear any cases related to school funding. Another would have eliminated the jurisdiction of the courts to hear any cases relating to taxation, budgeting or spending. And yet another called for the elimination of one judge in the city of St. Louis and would have given the circuit clerk of the city the power to decide "which judge gets the boot."

While each of these proposals ultimately was defeated (so far), the fact that any of them gained serious consideration – at least by some group of legislators – proves that these proposals are not just idle threats.

Another threat is to the budget of the judicial branch because of the legislature's power of the purse. At times, some individual legislators have assured their constituents that they control the courts because, after all, they control the courts' budget. This is rhetoric that echoes from Congress in reference to the federal judiciary.

In a similar way, the other branches of our state government have the power to distort how our resources are allocated. Last year, the general assembly created new judges and commissioners that added $1.7 million in salaries – in perpetuity – to our budget. Similar proposals were made during the current session.

So what's the problem with this, you ask? Certainly some of our communities and courts need more judges or commissioners, and in those areas, the positions were intended in good faith to meet the burgeoning needs of a growing population. But in other communities, not only did the courts not ask for new judges or commissioners or even know such proposals had been made until after they were passed, but the courthouses simply lacked the space for any new judges or staff. Politely put, this is "economic development." Or, less politely, it's just good old-fashioned "pork."  It’s nice for legislators to get new highways for their districts, but new judgeships?

These examples illustrate that, whatever the right amount of money may be to maintain an excellent judicial branch, the Judiciary’s budget can be distorted and resources not distributed properly simply because of political considerations.

We are the branch of government that has the least control over its own budget. Because of budget cuts in recent years, the judicial system still has far to go in implementing our technology advances. Salaries may not be sufficient to attract and retain qualified judges. As you probably have heard by now, judicial salaries are getting ready to enter their sixth year of stagnation.  The House voted to extend to judges the 4-percent cost-of-living adjustment for other state employees, but this effort failed because the senate and the governor did not support it. 

With more than 3,200 employees stretched into every corner of Missouri, we are as cognizant as anyone of the tough financial times that the state has faced. For instance, not all trial judges have sufficient staff to help them in their legal and administrative work. In the past few years, we have recognized our vulnerability to being reduced to the point where the judicial branch would cease to perform some of its essential functions.

But now that the state is coming out of its dire fiscal straits, we should be careful that we don't use the budget of the extremely tough years as the baseline for where we ought to be. A well-functioning court system is an essential part of the infrastructure of state government.

In the past 30 years, our share of the state's budget has decreased even as we have taken on more personnel and responsibilities. The Judiciary currently draws less than 0.8 percent of the state’s overall spending. You heard that right – 0.8 percent. We spend around 70 percent of our budget in the circuit courts, and about 98 percent of that budget pays the salaries for judges and court personnel in our local communities.

Our goal is to have a court system that functions efficiently and effectively to best serve all the citizens of this state. There are many in the state capitol who have come to understand our goal and who recognize our good faith efforts, and we are grateful for them. Others, however, seem poised to renew their efforts to gain control over the courts, through attacks on our jurisdiction, our budget and our judges themselves.

This is a wake-up call.  But I view this as an opportunity, not a full-blown crisis. It is time to take a step back, to shift our focus, to look at ourselves more critically in an effort to strengthen our court system. We need to engage ourselves and our fellow citizens – including members of the bar, members of the business community, civic leaders and others who care about the rule of law and a functioning third branch of government – to chart the course of our state's judicial branch.

This is especially true in the era of a term-limited legislature. Often, politicians seeking office may see a short-term advantage in criticizing the courts.  As I have noted many times before, courts are easy targets. They handle hundreds of thousands of cases each year, and the law of averages tells us that there will be just as many losers as there are winners, providing fodder for the disgruntled. Not all court decisions are correct, no matter how soberly those judgments may have been reached. But when a judgment runs afoul of the public mood at a particular point in time, courts are attacked by those who want them to be subservient to the legislative and executive branches of government, which supposedly are repositories of the public will.

That said, however, I believe that criticism of individual judicial decisions is fair game. After all, I spent a good deal of my previous career as a law professor, and as those of you who have been to law school know, law professors see that criticizing judicial decisions is part of the job.

But there is a fundamental difference between criticizing individual decisions and seeking to tear down the system as a whole. The constructive criticism in which we all engage is healthful for the system, which must be self-correcting. Only through thoughtful and orderly criticism can we bring it to a better level.

The foundation of our modern court system is article V of the Missouri constitution. Thirty years ago, the general assembly sent this revised judicial article to the voters, who approved it. As I compare our judicial article with constitutional provisions for judiciaries of other states, I am impressed that ours provides a framework for a modern and efficient Judiciary. It is an extraordinary improvement over the past, as those of you know who are old enough to remember practicing under the old system.

But a lot has changed in the last three decades, and now we need to examine this 30-year-old judicial article in our constitution. It requires, for instance, that each county have a resident judge. Some counties now have as few as 2,000 people and only a few hundred cases per year. We at the Supreme Court have tried to make up for these misallocations by assigning judges from less busy areas to more busy circuits, but our ability to address this problem is rather limited. It may be time for us to confront this issue head-on. Should we examine the utility of having both associate circuit judges and circuit judges? Or should all judges instead be of a single tier? We need a case-weighted methodology so that our resources can be used as effectively and efficiently as possible.

It also may be time for us to examine whether the constitution should be amended to require a budgeting process that meets the basic fundamental needs of the Judiciary on an ongoing basis. We are part of the permanent infrastructure of state government, and we should be treated accordingly. There is a level of resources that must be devoted to this third branch of government if it is to fulfill its constitutional role and duties. We should think seriously about this in a strategic way.

We come to this process from a position of strength. My confidence in saying this is bolstered by a state court assessment project in which many of you may have participated. This assessment project was conducted by the American Bar Association's standing committee on judicial independence. The ABA committee studied the strengths and needs of Missouri's courts through a series of in-depth interviews with civic leaders and opinion makers who are knowledgeable about the judicial branch of government. The assessment reviewed our governmental structure, including the constitution, statutes and court rules.

The committee's report, which we will continue to study, provides a thorough and candid assessment of our Judiciary. Its findings reflect that our Missouri court system is fundamentally sound and provides for effective administration of justice; has well-qualified, experienced judges who decide cases promptly; and has adequate avenues for appeal and other methods of self-correction, which are the hallmarks of a world-class judicial system. It also tells us that we have appropriate administrative leadership and rulemaking authority; that we ensure impartial decision-making and the quality and integrity of the bench; that our system for evaluating judges is positive and that the process through which complaints may be lodged concerning judicial conduct is meaningful; that our courtrooms are open to the public and that we have proper procedures for handling allegations of bias; and that we serve the community well through problem-solving courts.

I am asking the organized bar and various voluntary bar associations, and you as individuals, to continue this process, to think about the judicial system as a whole and to send us your ideas.

I would like to receive those ideas by June 30 so we can analyze them carefully, put them together as a package and bring them to the Judicial Conference, which is the organization of the state's judges that meets at the same time of The Missouri Bar meeting in late September. I think we in the Judiciary can work together with members of bar, with civic leaders, with business leaders, with other community leaders, and with legislators and other elected officials to do develop a strategic vision of the future of the Missouri Judiciary.

We all know this process will be difficult, but it is necessary to fulfill our commitment to provide a highly functioning system of justice that serves the needs of Missouri's citizens. It is crucial that we all undertake this process in good faith, without setting up areas of the state or levels of the Judiciary in competition with one another. We have to cooperate with one another, and we have to collaborate with others. We need to make sure that a functioning judicial system is available in every part of the state, whether sparsely populated or an urban center. We won't be giving any judges the boot. But we must plan for allocation of resources that may be different as the personnel of the Judiciary change and as the demographics of our state change. No matter what, we should approach the process with our eyes focused forward, ready to make change where necessary to build a better judicial system for the future.

After all, we are but temporary occupants of this permanent infrastructure. Each one of us in the legal profession has a permanent interest in an effective and efficient Judiciary. Our society has the same interest. We should pursue this interest as cooperatively and effectively as we can.

Ultimately, the people of this state control their government through their power to change the constitution. If constitutional measures are needed, we should propose them and work to educate voters about them. If court rules need to be changed, we should do so. If statutory changes are needed, we should tell our friends in the legislative and executive branches and offer whatever assistance they might ask from us.

When I spoke to the general assembly in January, I referred to legislators and judges as "constitutional partners." We are indeed that. And I hope that, although it may take years, we will undertake a process for developing a common vision and a methodology for achieving our goals.

We in the Judiciary need your help in this, and I know you will give it, just as you have done during this legislative session. Your voices on the issue of compensating these public servants have been heard. I am very pleased that the general assembly today approved a proposal  The measure was truly agreed to and finally passed just a few hours after the chief justice delivered his address. The address has been modified to reflect the final status of the proposal. – to be submitted to the voters later this year – to improve the manner in which compensation for judges, legislators and statewide elected officials is considered. Pay for judges and elected officials in recent years has been a political football. I believe the proposed change will result in greater respect for the citizens' commission that has the constitutional duty to set compensation.

We have received such great support from many businesses, civic and bar leaders in this effort, and it may seem awkward to single out one person to thank in particular.  But I would be remiss if I did not pay particular tribute to Pat McLarney, president of the KCMBA, who has been tireless and zealous beyond belief in recent weeks.

To all of you, I am grateful for all of the support that you have shown.  I am most appreciative of your good advocacy, your good will toward the process that we have, and your zealous advocacy for the interests of your clients and of our American system of justice. We are a strong society because of you, and I hope you will continue these efforts to be good public citizens. It is truly the permanent commitment of our profession.  So together, let's soldier on. Thank you very much.