16 July 2007

Commentary* by Michael A. Wolff
Judge, Supreme Court of Missouri


When I reflect on my two-year term as chief justice, I consider the question I asked in 2005: How do our Missouri courts measure up to the ideals that we Americans trumpet to the rest of the world about the importance of the rule of law? Generally, these years have shown that Missouri courts are doing well.

The first hallmark of a good judicial system – that courts have resources that are adequate to attract and retain qualified people to serve in the judiciary and to support the essential functions of a court system – is one in which our courts are subsisting but should be doing better.

One bright spot in our dealings with the legislative and executive branches has been the budget support the courts have received. This support recognizes the vital function that the courts and the law play in every county and community in the state. The 3,200 employees of the judicial branch work daily to keep our communities stable and functioning well. For this we use less than 1.7 percent of the state's general revenue budget.

We are grateful to the governor and to the General Assembly for their efforts to fix the broken system for compensating judges, and, of course, to the voters who approved necessary constitutional changes to the citizens' commission on compensation. Judges, like others who pursue public service, still have a substantial gap between their salaries and those in the private sector or even in some parts of the public sector. But the gap, over time, may narrow to the point that able men and women of modest means will be able to pursue judicial service. Likewise, I hope that the salaries of our non-judicial employees will keep pace so we can retain capable and dedicated support staff.


Courts are accountable

Because of the dedication of our judges to their constitutional duties, our courts have achieved the second hallmark of a good judicial system: Our courts are accountable – to the law and constitution that form the foundation of our decisions – and to the people through periodic elections, whether contested races or nonpartisan retention elections.

The nearly 400 Missouri state judges and commissioners handle about a million cases per year. This does not include the traffic and other ordinance violations that are processed by municipal courts throughout the state. These cases include contract and other business cases vital to our economic well-being, criminal cases essential to public safety, family and probate matters that protect children and the elderly, and cases that safeguard property rights and interests.

Though Missouri's judges are subject to retention votes or are elected by the people, their duty is to the law. This means that sometimes the courts must decide whether a particular law has been enacted properly or whether the law violates the Missouri or United States constitution. In such cases, the law sometimes requires courts to uphold the constitutional rights of individuals or businesses if the will of the majority as expressed in laws passed by the legislature violates the constitution.


Courts must be shielded from politics

Throughout our history, this duty has led to controversy that, in the past few legislative sessions, has sparked the proposal of several court-bashing constitutional amendments. Fortunately, the General Assembly passed none of these proposals, which were designed to limit citizens' access to courts or to change the way judges are selected.

As a result, Missouri's courts have preserved the third and final hallmark of a good judicial system: Our courts are reasonably insulated from partisan politics and special interest groups and, therefore, are able to render fair and impartial decisions.

Regrettably, this has become an ongoing struggle for this state's courts, as extreme incivility has pervaded Missouri's politics at every level. We in public life should expect our decisions to be scrutinized and, at times, criticized. This is what makes our system of government healthy. That said, what passes for criticism these days are not critiques of the merits of courts' decisions but rather are personal attacks on the judges who make them. "Activist judge" – a phrase whose meaning is not clear to anyone but the one using it – is one clichéd epithet used even when the judges strictly applies the words of the constitution or statute. "Legislating from the bench" is another bullying term used when one seems to disagree with a court's legal conclusions.

Despite this constant barrage of name-calling, a recent poll suggests that nearly 70 percent of Missourians trust the Supreme Court of Missouri to make decisions based on the law and not on political beliefs. This is nearly the same as the number of respondents who tell pollsters that they approve of their judges on a local and state level.

Do these 70 percent know who we are? Chances are they do not, no more than many people know who their state representatives or state senators are. Judges – except those who play judges on TV – tend to labor in obscurity. That is as it should be, for courts exist to resolve disputes, not to focus attention on those making decisions. As a result, the only time the public hears or reads the names of judges is when those judges preside over high-profile or controversial matters. But only a handful of the million or so cases we hear every year are either high-profile or generate public controversy.


Political attacks are inevitable

Must there always be controversy? Inevitably. Remember, I pointed out that the job of courts occasionally is to protect minorities – political, geographical or otherwise – from the tyranny of the majority. Of late, the majority – and certain special interest groups – has attempted to undermine the courts' ability to perform their intended function as the third branch of government. The result has been political attacks against particular judges and legislative proposals designed to limit citizens' access to courts or to change the way judges are selected.

One proposal would have stripped courts of the authority to hear cases involving taxing or spending decisions. While I have found no case where a Missouri court ordered a tax to be imposed or increased, there are scores of cases where taxpayers challenged the legality of taxes imposed upon them. Measures that would strip the courts of authority over such cases would not punish the courts or judges, but they would take away the rights of citizens to challenge the legality of governmental action.

Another proposal would have altered the way judges are selected and retained by making judges periodically subject to retention votes in the General Assembly. That would make judges subject to the whims of politicians – a position fundamentally at odds with the duty to hear and decide cases fairly, impartially and based upon the law – and would strip the citizens' right to decide for themselves whether nonpartisan judges should be retained through periodic retention elections. This undermines the wishes of Missourians – expressed through their votes – that created a nonpartisan system for selecting judges in the Supreme Court, Court of Appeals and urban trial courts designed to curtail the control of powerful politicians and ward bosses over the third branch of government.

Under this system, a nonpartisan commission of lawyers and non-lawyers nominate three candidates from the pool of applicants, and the governor then may choose one of those three candidates, subject to a retention vote by the people. Missouri voters first approved this judicial selection system in 1940 and overwhelmingly rejected a subsequent legislative proposal to return judges to elective politics.


Heed Adam Smith's warning

I am certain the next year or so will bring more attacks against judges and more proposals in the General Assembly to give politicians – and the special interest groups to which they may answer – control over the selection and retention of judges. The General Assembly will be wise to reject them. After all, Adam Smith, the 18th century author of "The Wealth of Nations" and an icon for today's conservatives, warned of the danger to courts in making them subservient to the executive power. "When the judicial is united to the executive power," Smith wrote, "it is scarce possible that justice should not frequently be sacrificed to, what is vulgarly called, politics."

One of the significant changes affecting Missouri's politics in recent years is the dominant role played by political consultants. Ballot propositions mean campaigns, and campaigns mean money for political consultants who run them. It is inevitable, then, that politicians – who are clients of political consultants – will be urged to pass a ballot proposition aimed negatively at the courts to encourage very conservative voters to come to the polls.

Despite the struggle during the past two years to maintain the judiciary's role as the third branch of government in our system of checks and balances, serving as chief justice of this distinguished court has been a great honor. The chief justice position is temporary – two years – and carries no great power within this very collegial group of seven judges. But it does afford the privilege of speaking to and for the fine men and women who serve our state in the judicial branch. And it provides a means to encourage the improvement of the law, the legal profession and the legal system. For that I am truly grateful.


* Judge Wolff provided this commentary exclusively for publication in the July 16, 2007, edition of Missouri Lawyers Weekly.