27 September 2018
This is the written draft from which Zel M. Fischer, chief justice of the Supreme Court of Missouri,
delivered his address during the opening luncheon of the joint annual meeting of
The Missouri Bar and the Judicial Conference of Missouri September 27, 2018, in St. Louis.
delivered his address during the opening luncheon of the joint annual meeting of
The Missouri Bar and the Judicial Conference of Missouri September 27, 2018, in St. Louis.
We have two plaques on the landing of the marble staircase in our Supreme Court Building in Jefferson City.
One commemorates the courage of the people of Missouri in amending their constitution in 1940 to adopt the Missouri Court Plan, making ours the first state in the nation to embrace judicial merit selection. Our foresight looks brilliant today, as the entire Supreme Court of West Virginia – which has direct partisan elections – is facing impeachment. And the confirmation process for Judge Brett Kavanaugh’s nomination to the Supreme Court of the United States looks nothing like the advice and consent of the senate our founding fathers intended.
The other plaque commemorates the founding – in December 1880 – of the organized bar in Missouri. This plaque is “in tribute to the principle of equal and exact justice to which the bar is dedicated, and in honor of the distinguished members of the Missouri bench and bar who have made this principle abiding for all people.”
Modernized practices
For nearly 140 years, your Missouri bar and your judiciary have remained vigilant and committed to this principle of access to justice for all. But how we practice law has changed dramatically. Sure, some of our trial judges still see plenty of windshield time going from courthouse to courthouse, they also hold hearings via teleconference. Technology in the courts – once a figment of a few creative imaginations – now represents the way we do business. But more importantly, it also serves as a digital pipeline for accessing justice.
Just to put this in perspective:
These numbers continue to grow each year. We can no longer think of technology as just a cool toy. Rather, it is the way our citizens expect to do business, whether it enables them to bank or shop or whether it opens virtual doors to courthouses.
But technology is not cheap, nor is it easy to maintain, and if we do not find an adequate and sustainable source of funds to maintain our systems, it will collapse under its own weight. If maintaining our current level of services is important to you and your clients, or you are interested in continuing to expand services to better serve the public in the future, please help us convince our public policy decision makers – the General Assembly and the governor – how important it is for them to appropriate the funds necessary to sustain court technology. Without an increased general revenue appropriation, this expense necessarily will result in increased court costs shouldered solely by those who look to our courts to resolve their disputes.
Changing technology also drove us to update other court services. Effective in July, the Court overhauled its operating rule governing cameras and other electronic devices in Missouri courts. Major changes include:
The new operating rule protects the legal process, maintains judicial discretion and satisfies decorum but also takes into consideration the way we use our “smart technologies” in the practice of law and in disseminating information to the public.
Treatment court divisions
Just as we have had to accommodate significant advances in technology, our courts have had to recognize their evolving role in society. In addition to resolving more than1.8 million cases last year, our co-sovereign branches of government and our citizens expect your courts to help change lives, most notably through the problem-solving approach of our treatment court divisions. Missouri’s first drug-treatment court was founded 25 years ago. Since then, we have become a national leader, with more treatment courts per capita than any other state.
But, as I told our General Assembly in January, citizens in 15 Missouri counties still lacked access to a local treatment court. Please join me in applauding Governor Parson for making treatment courts a priority of the recent legislative special session and in applauding our General Assembly for passing the bill expanding access to treatment courts.
This expansion comes at a critical time. With the passage of the new legislation, we also will have the ability to move treatment court commissioners from one circuit to another, just as we have done for years with our judges. And new provisions will allow a qualifying participant who lives or committed a crime in a jurisdiction with no treatment court to be transferred to a circuit where one exists.
Criminal justice improvements
Treatment court divisions are not the only part of our justice system undergoing change. Our criminal justice task force is spending countless hours identifying areas for improvement and working to devise common-sense modifications to our criminal justice system.
One major area for potential change involves bail reform. Earlier this year, the 5th Circuit court of appeals ruled the cash bail system in Texas’ most populous county (and the third biggest in the whole nation!) violates the due process and equal protection rights of defendants charged with misdemeanor offenses who simply could not afford to post bail. And just last month, California enacted legislation abolishing cash bail. Washington, D.C., already has a cashless bail system, and states like New Jersey have reduced their reliance on monetary bail. The discussion continues in Missouri, where we all share a responsibility to protect the public but ensure those accused of crime are treated fairly and equitably according to the law.
Trial courts have broad discretion to fashion bail conditions by adequately balancing – in the circumstances of each particular case – the constitutional imperative to afford the accused an opportunity for pretrial release with the constitutional imperative to insist on “sufficient sureties” the defendant will appear at trial and when otherwise commanded. And state statutes permit a court to deny bail or impose other appropriate conditions to protect a crime victim, a witness or the community from a defendant who poses a danger to them.
Too often, though, bail is based on an outdated schedule handed down from one well-meaning judge to another. While our judges generally have considered an accused individual’s circumstances appropriately in response to a motion to reduce bail, even relatively short periods of jail time can cause longterm detrimental effects.
We have charged the task force with finding ways to move away from the use of bail schedules to help ensure the determinations – and conditions – of pretrial release are made more accurately and with the best information … and are not based on race, gender, ethnicity or economic conditions. I look forward to the time when those who are most likely to receive probation at the resolution of their cases but do not have enough money to post bail at the outset are released on their own recognizance with appropriate conditions … and when those who truly pose a danger to crime victims or our communities will be held pending trial regardless of their wealth.
Racial and ethnic fairness
I also want to highlight two recent developments resulting from work of the commission on racial and ethnic fairness. In May, the Missouri Judiciary hired its first diversity and inclusion manager, Kimberley Taylor-Riley. An attorney with a background in social work, she prosecuted domestic and sexual violence cases across Nebraska and then maintained a private practice focusing on family and criminal law before serving as director of equity and diversity for the city of Lincoln, Nebraska. We are pleased to have Kim on board.
The other recent development culminated in July, when, led by both Judges Draper – George of the Supreme Court and Judy of the St. Louis County circuit court – Missouri hosted the National Symposium on Reconciliation & Ethnic Fairness. This event, held in Chesterfield, was well received and attended.
The symposium’s highlight was a panel featuring descendants of Dred Scott, one of Mr. Scott’s former owners, President Thomas Jefferson, Confederate President Jefferson Davis and Chief Justice Roger Taney, all discussing the modern impact of the Dred Scott decision on their families and the nation. I hope many of you were able to attend.
One of the panel participants – Kate Taney Billingsley, the great-great-great-grandniece of the author of the infamous Dred Scott decision – remarked about the symposium: “As an artist writing about racism in America, I find myself at times feeling a bit nihilistic. And yet on Monday, I had this flux of hope, seeing so many judges ready and willing to learn about how they can be more just and unbiased in their courtrooms. … It felt as if that symposium should be required for all judges across America – and for all people who want to break the bonds that keep us fighting one another.”
Other collaboration
As I told the General Assembly back in January, I was raised to believe everything works better when everybody does their own job well, but with a recognition that the big jobs require us all to work together. We are fortunate our judicial system and unified bar enjoy such a strong working relationship and history of collaboration on important issues affecting Missouri’s legal system.
Military spouse rule
One of these issues – which we believe will increase legal services available to our citizens – involved finding a way for spouses of military personnel stationed in Missouri to practice law while they are here. Earlier this month, the Court adopted a new rule based on a proposal developed by the Missouri Board of Law Examiners in conjunction with The Missouri Bar.
When the rule takes effect in January, lawyers with licenses in good standing from other jurisdictions, whose spouses are full-time active service members of the United States armed forces assigned by the military to permanent duty in Missouri or a contiguous state, will be allowed to apply for temporary admission to practice law in Missouri. We believe allowing these qualified attorneys to share their legal talents with our citizens while they happen to be in our state will honor the sacrifice they make as military spouses and will serve Missourians well.
Trust-account changes
Also effective in January will be sensible changes to our trust account rules, thanks to input from The Missouri Bar’s board of governors and this Court’s advisory committee. As a result, lawyers who accept up to $2,000 in flat fee advancements may deposit the funds in an account other than the trust account. Also, deposits into trust accounts will be presumed “good funds,” available for disbursement, 10 days after the bank records the deposit, unless a lawyer has actual notice of a reason to wait longer. In addition, disbursement of earned fees from a trust account into a lawyer’s operating account within one month will be presumed reasonably prompt.
Make no mistake: The Court continues to believe the fiduciary duty lawyers owe to their clients makes it critical for them to manage their client funds with the utmost care and in conformity with the rules of professional responsibility. But we hope these changes borne out of collaboration with the Bar will help you maintain responsibility and operate more efficiently.
Chief justice-Bar president roadshow
The Bar and the Court also have brought their collaboration to an individual level. Morry already told you a little about our roadshow to help people understand the role lawyers and your courts have in society. While this day-to-day work may not elicit news headlines or go viral on social media, it nonetheless is vitally important for our citizens. Morry and I have taken our roadshow to all four corners of our state. From Maryville to Cape Girardeau, Hannibal to Springfield – places some folks refer to as “rural MissourAH,” but I just call “GREATER MissourEE!” I was pleased with the courteous welcome we received from local chambers of commerce and other business and service groups. Ray, as a fellow country lawyer, I look forward to putting some gravel in our travels.
Conclusion
Lawyers make the best public servants. As Justice Sonia Sotomayor told a crowd at the University of Missouri-St. Louis earlier this month, “A better world doesn’t happen – it gets made.” And, contrary to popular opinion, lawyers are right there helping to make it happen.
It is rare – and maybe without precedent at this luncheon – for the chief justice to single out any particular judge for praise, primarily because the judicial conference has an awards breakfast dedicated for that purpose at which I already honored four judges.
But I am going to exercise a moment of personal privilege to thank someone whose dedicated years of service to the legal profession and the judiciary truly embody public service: Judge Karl DeMarce. Although he serves primarily at home in Scotland County, he has been assigned to hear a vast range of cases in more than 20 other local courts, plus the appeals court and the Supreme Court of Missouri.
Karl also has given innumerable hours to countless court committees. He is a thoughtful participant on the criminal justice task force … on the heels of yeoman’s work shepherding the implementation of many municipal division improvements resulting from his contributions to the municipal division task force. His service has been expansive – from court automation to state judicial records, from garnishments to gender and justice, from civic education to trial judge education. A former legislator, his wisdom also has proved invaluable on our judicial conference’s legislative committee.
As Judge Corey Herron said this morning in presenting Karl with the inaugural “exceptional service to justice award” from the Missouri Association of Probate and Associate Circuit Judges – of which Karl is a former president – one could continue on and on and still not adequately honor his significant influence in furthering the interests of justice for all.
Karl’s leadership extends beyond our state’s borders. He recently delivered a keynote address to the national trial court organization of presiding judges and court administrators about courage as a necessary skill in court leadership. No matter what Karl DeMarce is called upon to do, he always performs with utmost professionalism, humility and grace under pressure.
Some of you may not know Karl is leaving the judiciary at the end of this year. If he were just retiring to play golf or fish, I would enter a per curiam order requiring him to stay. If he were turning 70, I would at least try to enter an order amending his birth certificate. But he is far from 70, and certainly is not hanging up his robe in favor of a fishing pole or golf clubs. No, he is embarking on a new career – indeed, a calling – as he prepares to enter the seminary for his Lutheran church. God can use a man like Karl DeMarce working full-time.
So Karl, we thank you for your 20 years of serving the people of this state as a judge, and we wish you all the best as you continue to improve the world in which we live, one human life at a time.
Let us all be guided by Karl’s example – to be true to our roots … to treat others with dignity and respect … to be generous in sharing our gifts and talents … and to be willing to work hard to make Missouri a better place for those we took an oath to serve.
Thank you all for your service to your bar, to your courts and to your communities.
One commemorates the courage of the people of Missouri in amending their constitution in 1940 to adopt the Missouri Court Plan, making ours the first state in the nation to embrace judicial merit selection. Our foresight looks brilliant today, as the entire Supreme Court of West Virginia – which has direct partisan elections – is facing impeachment. And the confirmation process for Judge Brett Kavanaugh’s nomination to the Supreme Court of the United States looks nothing like the advice and consent of the senate our founding fathers intended.
The other plaque commemorates the founding – in December 1880 – of the organized bar in Missouri. This plaque is “in tribute to the principle of equal and exact justice to which the bar is dedicated, and in honor of the distinguished members of the Missouri bench and bar who have made this principle abiding for all people.”
Modernized practices
For nearly 140 years, your Missouri bar and your judiciary have remained vigilant and committed to this principle of access to justice for all. But how we practice law has changed dramatically. Sure, some of our trial judges still see plenty of windshield time going from courthouse to courthouse, they also hold hearings via teleconference. Technology in the courts – once a figment of a few creative imaginations – now represents the way we do business. But more importantly, it also serves as a digital pipeline for accessing justice.
Just to put this in perspective:
- Missouri lawyers made more than 5.3 million filings in our e-filing system during the last fiscal year and have generated more than 1,400 electronic legal files for cases on appeal just since January.
- Each month, Case.net receives nearly 60 million hits and registered users make more than 5,000 new requests to track cases.
- Our Missouri Courts website now averages more than 3.3 million hits each day, and in the last fiscal year, people made more than $3 million in payments using Pay By Web.
These numbers continue to grow each year. We can no longer think of technology as just a cool toy. Rather, it is the way our citizens expect to do business, whether it enables them to bank or shop or whether it opens virtual doors to courthouses.
But technology is not cheap, nor is it easy to maintain, and if we do not find an adequate and sustainable source of funds to maintain our systems, it will collapse under its own weight. If maintaining our current level of services is important to you and your clients, or you are interested in continuing to expand services to better serve the public in the future, please help us convince our public policy decision makers – the General Assembly and the governor – how important it is for them to appropriate the funds necessary to sustain court technology. Without an increased general revenue appropriation, this expense necessarily will result in increased court costs shouldered solely by those who look to our courts to resolve their disputes.
Changing technology also drove us to update other court services. Effective in July, the Court overhauled its operating rule governing cameras and other electronic devices in Missouri courts. Major changes include:
- Modernized definitions of “media” and “media coverage” to include documentarians and bloggers and of “media equipment” to recognize the many kinds of devices now being used; an
- A requirement of case-specific consideration of media requests to prevent a local court from adopting a blanket rule prohibiting all media coverage regardless of circumstance.
The new operating rule protects the legal process, maintains judicial discretion and satisfies decorum but also takes into consideration the way we use our “smart technologies” in the practice of law and in disseminating information to the public.
Treatment court divisions
Just as we have had to accommodate significant advances in technology, our courts have had to recognize their evolving role in society. In addition to resolving more than1.8 million cases last year, our co-sovereign branches of government and our citizens expect your courts to help change lives, most notably through the problem-solving approach of our treatment court divisions. Missouri’s first drug-treatment court was founded 25 years ago. Since then, we have become a national leader, with more treatment courts per capita than any other state.
But, as I told our General Assembly in January, citizens in 15 Missouri counties still lacked access to a local treatment court. Please join me in applauding Governor Parson for making treatment courts a priority of the recent legislative special session and in applauding our General Assembly for passing the bill expanding access to treatment courts.
This expansion comes at a critical time. With the passage of the new legislation, we also will have the ability to move treatment court commissioners from one circuit to another, just as we have done for years with our judges. And new provisions will allow a qualifying participant who lives or committed a crime in a jurisdiction with no treatment court to be transferred to a circuit where one exists.
Criminal justice improvements
Treatment court divisions are not the only part of our justice system undergoing change. Our criminal justice task force is spending countless hours identifying areas for improvement and working to devise common-sense modifications to our criminal justice system.
One major area for potential change involves bail reform. Earlier this year, the 5th Circuit court of appeals ruled the cash bail system in Texas’ most populous county (and the third biggest in the whole nation!) violates the due process and equal protection rights of defendants charged with misdemeanor offenses who simply could not afford to post bail. And just last month, California enacted legislation abolishing cash bail. Washington, D.C., already has a cashless bail system, and states like New Jersey have reduced their reliance on monetary bail. The discussion continues in Missouri, where we all share a responsibility to protect the public but ensure those accused of crime are treated fairly and equitably according to the law.
Trial courts have broad discretion to fashion bail conditions by adequately balancing – in the circumstances of each particular case – the constitutional imperative to afford the accused an opportunity for pretrial release with the constitutional imperative to insist on “sufficient sureties” the defendant will appear at trial and when otherwise commanded. And state statutes permit a court to deny bail or impose other appropriate conditions to protect a crime victim, a witness or the community from a defendant who poses a danger to them.
Too often, though, bail is based on an outdated schedule handed down from one well-meaning judge to another. While our judges generally have considered an accused individual’s circumstances appropriately in response to a motion to reduce bail, even relatively short periods of jail time can cause longterm detrimental effects.
We have charged the task force with finding ways to move away from the use of bail schedules to help ensure the determinations – and conditions – of pretrial release are made more accurately and with the best information … and are not based on race, gender, ethnicity or economic conditions. I look forward to the time when those who are most likely to receive probation at the resolution of their cases but do not have enough money to post bail at the outset are released on their own recognizance with appropriate conditions … and when those who truly pose a danger to crime victims or our communities will be held pending trial regardless of their wealth.
Racial and ethnic fairness
I also want to highlight two recent developments resulting from work of the commission on racial and ethnic fairness. In May, the Missouri Judiciary hired its first diversity and inclusion manager, Kimberley Taylor-Riley. An attorney with a background in social work, she prosecuted domestic and sexual violence cases across Nebraska and then maintained a private practice focusing on family and criminal law before serving as director of equity and diversity for the city of Lincoln, Nebraska. We are pleased to have Kim on board.
The other recent development culminated in July, when, led by both Judges Draper – George of the Supreme Court and Judy of the St. Louis County circuit court – Missouri hosted the National Symposium on Reconciliation & Ethnic Fairness. This event, held in Chesterfield, was well received and attended.
The symposium’s highlight was a panel featuring descendants of Dred Scott, one of Mr. Scott’s former owners, President Thomas Jefferson, Confederate President Jefferson Davis and Chief Justice Roger Taney, all discussing the modern impact of the Dred Scott decision on their families and the nation. I hope many of you were able to attend.
One of the panel participants – Kate Taney Billingsley, the great-great-great-grandniece of the author of the infamous Dred Scott decision – remarked about the symposium: “As an artist writing about racism in America, I find myself at times feeling a bit nihilistic. And yet on Monday, I had this flux of hope, seeing so many judges ready and willing to learn about how they can be more just and unbiased in their courtrooms. … It felt as if that symposium should be required for all judges across America – and for all people who want to break the bonds that keep us fighting one another.”
Other collaboration
As I told the General Assembly back in January, I was raised to believe everything works better when everybody does their own job well, but with a recognition that the big jobs require us all to work together. We are fortunate our judicial system and unified bar enjoy such a strong working relationship and history of collaboration on important issues affecting Missouri’s legal system.
Military spouse rule
One of these issues – which we believe will increase legal services available to our citizens – involved finding a way for spouses of military personnel stationed in Missouri to practice law while they are here. Earlier this month, the Court adopted a new rule based on a proposal developed by the Missouri Board of Law Examiners in conjunction with The Missouri Bar.
When the rule takes effect in January, lawyers with licenses in good standing from other jurisdictions, whose spouses are full-time active service members of the United States armed forces assigned by the military to permanent duty in Missouri or a contiguous state, will be allowed to apply for temporary admission to practice law in Missouri. We believe allowing these qualified attorneys to share their legal talents with our citizens while they happen to be in our state will honor the sacrifice they make as military spouses and will serve Missourians well.
Trust-account changes
Also effective in January will be sensible changes to our trust account rules, thanks to input from The Missouri Bar’s board of governors and this Court’s advisory committee. As a result, lawyers who accept up to $2,000 in flat fee advancements may deposit the funds in an account other than the trust account. Also, deposits into trust accounts will be presumed “good funds,” available for disbursement, 10 days after the bank records the deposit, unless a lawyer has actual notice of a reason to wait longer. In addition, disbursement of earned fees from a trust account into a lawyer’s operating account within one month will be presumed reasonably prompt.
Make no mistake: The Court continues to believe the fiduciary duty lawyers owe to their clients makes it critical for them to manage their client funds with the utmost care and in conformity with the rules of professional responsibility. But we hope these changes borne out of collaboration with the Bar will help you maintain responsibility and operate more efficiently.
Chief justice-Bar president roadshow
The Bar and the Court also have brought their collaboration to an individual level. Morry already told you a little about our roadshow to help people understand the role lawyers and your courts have in society. While this day-to-day work may not elicit news headlines or go viral on social media, it nonetheless is vitally important for our citizens. Morry and I have taken our roadshow to all four corners of our state. From Maryville to Cape Girardeau, Hannibal to Springfield – places some folks refer to as “rural MissourAH,” but I just call “GREATER MissourEE!” I was pleased with the courteous welcome we received from local chambers of commerce and other business and service groups. Ray, as a fellow country lawyer, I look forward to putting some gravel in our travels.
Conclusion
Lawyers make the best public servants. As Justice Sonia Sotomayor told a crowd at the University of Missouri-St. Louis earlier this month, “A better world doesn’t happen – it gets made.” And, contrary to popular opinion, lawyers are right there helping to make it happen.
It is rare – and maybe without precedent at this luncheon – for the chief justice to single out any particular judge for praise, primarily because the judicial conference has an awards breakfast dedicated for that purpose at which I already honored four judges.
But I am going to exercise a moment of personal privilege to thank someone whose dedicated years of service to the legal profession and the judiciary truly embody public service: Judge Karl DeMarce. Although he serves primarily at home in Scotland County, he has been assigned to hear a vast range of cases in more than 20 other local courts, plus the appeals court and the Supreme Court of Missouri.
Karl also has given innumerable hours to countless court committees. He is a thoughtful participant on the criminal justice task force … on the heels of yeoman’s work shepherding the implementation of many municipal division improvements resulting from his contributions to the municipal division task force. His service has been expansive – from court automation to state judicial records, from garnishments to gender and justice, from civic education to trial judge education. A former legislator, his wisdom also has proved invaluable on our judicial conference’s legislative committee.
As Judge Corey Herron said this morning in presenting Karl with the inaugural “exceptional service to justice award” from the Missouri Association of Probate and Associate Circuit Judges – of which Karl is a former president – one could continue on and on and still not adequately honor his significant influence in furthering the interests of justice for all.
Karl’s leadership extends beyond our state’s borders. He recently delivered a keynote address to the national trial court organization of presiding judges and court administrators about courage as a necessary skill in court leadership. No matter what Karl DeMarce is called upon to do, he always performs with utmost professionalism, humility and grace under pressure.
Some of you may not know Karl is leaving the judiciary at the end of this year. If he were just retiring to play golf or fish, I would enter a per curiam order requiring him to stay. If he were turning 70, I would at least try to enter an order amending his birth certificate. But he is far from 70, and certainly is not hanging up his robe in favor of a fishing pole or golf clubs. No, he is embarking on a new career – indeed, a calling – as he prepares to enter the seminary for his Lutheran church. God can use a man like Karl DeMarce working full-time.
So Karl, we thank you for your 20 years of serving the people of this state as a judge, and we wish you all the best as you continue to improve the world in which we live, one human life at a time.
Let us all be guided by Karl’s example – to be true to our roots … to treat others with dignity and respect … to be generous in sharing our gifts and talents … and to be willing to work hard to make Missouri a better place for those we took an oath to serve.
Thank you all for your service to your bar, to your courts and to your communities.