25 January 2006
Michael A. Wolff, chief justice of the Supreme Court of Missouri, delivered the following State of the Judiciary address January 25, 2006, during a joint session of the General Assembly in Jefferson City, Mo.
Thank you for that warm welcome. I'm truly grateful to be
here.
President Kinder, Speaker Jetton, honorable statewide elected officials, colleagues of the Supreme Court, honorable members of the cabinet, honorable members of this General Assembly and fellow citizens:
President Kinder, Speaker Jetton, honorable statewide elected officials, colleagues of the Supreme Court, honorable members of the cabinet, honorable members of this General Assembly and fellow citizens:
Thank you for this opportunity to speak with you
today. Before I begin, I would like for us to remember Judge Theodore McMillian,
who died last week. Judge McMillian was our state’s first black circuit judge,
state appeals judge and, for the past 27 years, a distinguished member of the
United States Court of Appeals in St. Louis. He was a historic figure, an
inspiration to those of us who were privileged to know him, and a generous
mentor. Through his talents, persistence, civility and sense of humor, Judge
McMillian opened doors that had previously been closed to men and women of his
race. Let us pause for a moment of silence to honor him. Thank
you.
This annual speech reminds us of our shared
bond: our common oath to uphold the constitution and laws of this great state
and nation. This shared promise binds us to a common goal, expressed by our
state’s motto: “The welfare of the people shall be the supreme law.” We are, as
my colleague Judge Mary Russell says, “constitutional partners.”
Although members of the executive, legislative and
judicial branches may not often think of themselves as partners, I believe the
term fits. Each of us has a distinct and equally important role. The basic
policies of our state are embodied in the constitution that the people
themselves have enacted. In partnership with each other and with the people we
serve – who retain for themselves the right to change the Constitution that we
uphold and the laws that you write – we forge the body of law that governs all
of us.
IMPORTANCE OF THE RULE OF
LAW
More so than any other nation on Earth, we
are a nation first and foremost of law. We have no common national origin or
ethnicity that now forms our shared identity as Americans. Instead, our identity
has been shaped by the rule of law and by our common experience that
faithfulness to the law guarantees individual liberties, equality of opportunity
and a functioning society. As constitutional partners, we all are given the task of protecting the
long-standing rule of law. Its roots date back at least to the Magna Carta –
some 800 years ago. In our state constitution, the people repeat the Magna
Carta’s command that “justice shall be administered without sale, denial or
delay.”
Our partnership preserves certain
long-standing principles of the rule of law that set us apart from the many
societies where the people yearn to overcome the rule of “might makes right” or
that perversion of the golden rule that “he who has the gold makes the rules.”
Each of us may, from our varying perspectives and
decidedly different constitutional roles, have a different view of what exactly
the “rule of law” means. You in the General Assembly are commissioned broadly to
carry out the preferences of your constituents – the majority of those who
elected you. At times you may ask yourselves the age-old question: Am I elected
merely to follow the will of my
constituents, or do I use my own best judgment to achieve the welfare of all the people?
Courts, by contrast, work from texts – the words of the constitution, the
common-law precepts expressed in judicial decisions, and the words that you
write in statutes and that executive agencies write in regulations. We in the
judicial branch labor over these words, and we strive to be faithful to their
meaning.
The courts’ work is dedicated to the
application and enforcement of the constitution and laws. The vast majority of
our work involves the lives of ordinary citizens. Very little of what our courts
do makes news: the thousands of cases where businesses, large and small, enforce
their contracts; where marital disputes are resolved; where property is
conveyed; where wealth is transmitted through probate; where children, victims
of domestic violence and other vulnerable people are protected; and where those
accused of crime are tried.
Courts provide stable
and rational resolution of disputes, protect property and economic interests,
and, when needed, protect people from the overreaching of government. Courts
cannot make everyone happy, but I do hope that the litigants and the public will
respect the integrity of our processes and of our decision-makers, both judges
and juries.
The courts’ challenge is to be fair and
impartial, professionally competent and prompt. We can do so only with your help
and your support and our citizens’ belief that the rule of law protects all of
us even when we might disagree with particular decisions.
IDEALS OF EFFECTIVE
COURTS
The rule of law is simple in theory, yet how can we maintain it in practice? One way is to compare ourselves to those nations in the process of creating a functioning rule of law. Many countries do not have a strong tradition embodying the rule of law and still resolve their disputes in the streets. People in these countries often look to the United States of America as a model, for they respect the integrity of our courts and the constitutional processes as they watch cases unfold here.
The rule of law is simple in theory, yet how can we maintain it in practice? One way is to compare ourselves to those nations in the process of creating a functioning rule of law. Many countries do not have a strong tradition embodying the rule of law and still resolve their disputes in the streets. People in these countries often look to the United States of America as a model, for they respect the integrity of our courts and the constitutional processes as they watch cases unfold here.
American lawyers and judges, at the request of
our federal government, offer guidance to many countries about how to establish
effective judiciaries. Under the auspices of the U.S. Agency for International
Development, American lawyers and the National Center for State Courts have
helped implement rule-of-law programs in former Eastern bloc countries and in
developing nations around the world. While we in America occasionally complain
about the outcomes of particular cases, it is that process of peaceably
resolving disputes that is one of our greatest exports and surely one of our
most lasting legacies to the world. This simple concept of a rule of law –
grounded in our constitutions, fashioned in our legislatures, administered by an
executive branch and enforced in the courts – ensures civic order rather than
civic chaos.
The rule of law is the foundation of a
democratic government, of a strong economic system and of civic order. The rule
of law ensures, in Lincoln’s words, government of the people, by the people and
for the people.
What do we tell the world are the
criteria for courts under a rule of law? There are three key measures:
independence, accountability and adequate resources. By examining how
independent, accountable and adequately supported a nation’s judiciary is, one
can determine if that nation adheres to the rule of law or is still suffering
from tyranny, lawlessness and corruption. By looking to a nation’s respect for
the rule of law we can discern the integrity of its governmental process, the
progress of civil society, and the robustness and stability of its economic
development.
JUDICIAL PRINCIPLES APPLIED TO
MISSOURI
So let us ask: how does our Missouri
Judiciary stack up to the same three measures – independence, accountability and
resources? What really is the
“State of the Judiciary” in our great state?
To
answer these questions, we must first understand what these terms –
independence, accountability and resources – mean. I will touch briefly on the
first two, which my predecessors have discussed with you in recent years, and
then spend a bit more time on the third.
“Independence,” quite frankly, is both overused and misunderstood. It
should not be interpreted, either by the public or by any judge, to mean that a
judge is free to do as he or she sees fit. Such behavior runs counter to our
oaths to uphold the law, and any attempt to put personal beliefs ahead of the
law undercuts the effectiveness of the Judiciary as a whole. Better stated,
“independence” refers to the need for courts that are fair and impartial when
reviewing cases and rendering decisions. By necessity, it also requires freedom
from undue outside influence or political intimidation, both in considering
cases and in seeking the office of judge. Courts are not established to follow
opinion polls or to try to discern the will of the people at any given time but
rather are to uphold the law.
The people rely on
courts to protect their access to justice and to protect their legal rights. For
the sake of the people, then, judicial independence must always be coupled with
the second stated measure – accountability.
In recent
months we have seen two men nominated to the Supreme Court of the United States
face intense questioning of their views by members of the United States Senate.
I believe these hearings offered an important lesson about the difference
between judges and the legislators who questioned them.
The important lesson taught by Chief Justice John Roberts Jr. and Judge
Samuel Alito is that they resisted demands to take positions on particular
controversies that might come before the Court. They, in effect, refused to make
campaign promises. Campaign promises are inconsistent with judging. After all,
you don’t want a referee in a football game to announce which side he will
penalize before the game begins! If judges are to be faithful to the law, they
must be prepared to consider written and oral arguments with an open mind. And
this open-mindedness is what we ask of our fellow citizens – and you – who serve
as jurors in courtrooms throughout this state – to not pre-judge the outcome
before they can consider all the evidence and arguments. Judges as well as
jurors must make decisions that are faithful to the law, regardless of the will
of the people and even where, on occasion, they personally might prefer to
decide otherwise. That is the essence of judging, and it is quite unlike the
legislative role.
In our state, judicial
accountability occurs on two broad levels. First, just like you, we are
accountable to our fellow citizens through the election and retention systems.
Unlike federal judges, who enjoy lifetime tenure, judges in Missouri have a
direct connection to the voters. The people of Missouri have
crafted a system that balances independence and accountability. In smaller
counties, where voters can get to know their judicial candidates, there are
elections. In some urban trial courts and the appellate courts, judges are
selected under the nonpartisan court plan and periodically face the voters in
retention elections. This system balances various competing interests and avoids
the problems seen in other states where the integrity of the judicial process,
even at the highest levels, increasingly has been brought into question.
Many of us who spend time in the eastern part of our
state could not avoid seeing on television the kind of election that can result
when millions of dollars are raised and spent on a judicial campaign. In the
2004 race for one district seat on the Illinois Supreme Court, most of the money
spent was assuredly special interest money – business interests on the one side,
trial lawyers on the other side – with charges and counter-charges that
detracted seriously from the public’s trust and confidence in the integrity and
the impartiality of the judiciary. Missouri’s system keeps courts accountable to
the people while avoiding the kinds of campaigns that can diminish respect for
judicial office.
Second, judges in Missouri are,
above all, accountable to the law and the constitution
through our sworn oaths. We are also accountable through the judicial
disciplinary system established by our constitution. For nonpartisan judges
subject to retention, The Missouri Bar is seeking to improve accountability by
giving voters better evaluations of judicial performance. This fall, voters in
some areas will have available to them not only the traditional evaluations by
lawyers who are acquainted with the judges’ work but also evaluations by jurors
of the judges who preside over the cases on which they serve.
Citizens view the courts as an important part of
democracy that provides essential balance in our form of government. As a
result, we conduct the courts’ business as openly as possible consistent with
the rights of individuals. We strive for predictability of outcomes for those
who seek judgments in our courts as enshrined in the principle of
stare decisis, constant
professionalism, and fundamental fairness of procedure. The citizens of this
great state expect – and deserve – no less.
FUNDING AN EFFICIENT AND PROFESSIONAL JUDICIARY
To ensure that Missouri’s courts can give the level of performance
required by these principles, we must have sufficient resources. On this third
measure – resources – we are most reliant on our constitutional partners – both
in the General Assembly and the executive branch. We rely on you to provide a
budget that is sufficient to allow us to fulfill our constitutional
responsibilities.
We share your hope that we are now
emerging from the difficult fiscal times that have been so challenging for the
past five years. During this time, we have tried to manage our resources well.
Today, the judicial branch receives about 1.6 percent of the state’s budget –
less than the percentage of the state’s budget that we received 20 years ago.
During that same period, however, our responsibilities have increased; for
instance, juvenile officers have been added to our budget to relieve county
governments of some of the burden of supporting local courts. In the past 10
years, as our workforce has decreased, our trial court case filings have
increased 23 percent, largely in civil cases involving breach of contract claims
filed by businesses, landlord-tenant disputes and domestic relations. The other
major area of increase was in felony criminal cases, due largely to new drug
laws.
In light of these facts, it is clear that
maintaining effective courts requires a renewed commitment of financial
resources to the Missouri Judiciary. The amounts we need are quite small in
comparison to the overall state budget, but they are essential.
When you and your constituents visit the courthouses in your district, you see the effects that our recent budget restrictions have had on our deputy clerks, who are the frontline personnel and the true face of our court system. Turnover in their ranks has reached an alarming rate, particularly in urban and suburban areas where the annual turnover rate is as high as 17 percent. Even in rural areas, where salaries are still more competitive, we experience significant turnover. Throughout the state – in both rural and urban courts – we have seen an actual decrease in the worth of salaries as wages fail to keep pace with the cost of living. Through these tough times, the many good people who have remained in our system despite layoffs and a lack of increasing salaries – like a lot of others in public service – have soldiered on.
When you and your constituents visit the courthouses in your district, you see the effects that our recent budget restrictions have had on our deputy clerks, who are the frontline personnel and the true face of our court system. Turnover in their ranks has reached an alarming rate, particularly in urban and suburban areas where the annual turnover rate is as high as 17 percent. Even in rural areas, where salaries are still more competitive, we experience significant turnover. Throughout the state – in both rural and urban courts – we have seen an actual decrease in the worth of salaries as wages fail to keep pace with the cost of living. Through these tough times, the many good people who have remained in our system despite layoffs and a lack of increasing salaries – like a lot of others in public service – have soldiered on.
We continue to improve court
technology, consolidate local court functions and make other efforts to be
efficient. But we need to retain our well-trained clerk staff, which we
increasingly are unable to do. Often, after developing their skills and becoming
proficient in working in the court system, they are marketable and move on to
higher paying jobs with their new skills. While we can never stop some flow of
workers out of public service, we hope that adopting the Governor’s proposed
4-percent cost-of-living increase will assist us in retaining many of these
frontline employees who are so important to the effectiveness of the Judiciary.
We appreciate your support, and the Governor’s
recent proposed increase, for our drug courts, which now operate in 35 of our 45
judicial circuits. It is in the interests of all of us, and the communities that
we serve, to work together on measures such as drug courts and the sentencing
advisory commission that can prevent repeat offenses so that our most expensive
correctional resources – prisons – are reserved for violent
offenders.
There is, of course, one other group on whom the budgetary constraints of recent years are taking a toll: our state’s judges, who now face their sixth year without any pay increase or cost-of-living adjustment. The state of judicial salaries is having a negative impact on our ability to attract the state’s best lawyers to judicial service to provide the best service to our citizens – and your constituents. I realize it may seem politically unpopular to some of you to consider a pay increase or cost-of-living adjustment for public servants who are paid better than most state employees. None of us, however, has the power to repeal the economic laws of the marketplace. Consider for a moment a few facts:
There is, of course, one other group on whom the budgetary constraints of recent years are taking a toll: our state’s judges, who now face their sixth year without any pay increase or cost-of-living adjustment. The state of judicial salaries is having a negative impact on our ability to attract the state’s best lawyers to judicial service to provide the best service to our citizens – and your constituents. I realize it may seem politically unpopular to some of you to consider a pay increase or cost-of-living adjustment for public servants who are paid better than most state employees. None of us, however, has the power to repeal the economic laws of the marketplace. Consider for a moment a few facts:
There now are Missouri attorneys fresh out of law school who are paid
more in their very first legal jobs than some state trial judges before whom
they may appear. For Missouri lawyers older than 36 years of age, the
average salary is as much as one
and a half times that of a state Supreme Court judge. While our state has
attracted and retained – through increased compensation – many fine state-paid
law professors, university administrators and other similarly talented public
sector professionals, we have seen the opposite in the Judiciary. In recent
years, some of our best jurists – including some from the Supreme Court – have
moved on to much more lucrative jobs in the private sector, and the number of
lawyers applying for judicial vacancies has decreased substantially.
I appreciate the fact that many in this great
chamber make substantial financial sacrifices to serve here. Judges do so as
well, but they also give up the opportunity for any supplement to their state
salaries through the practice of law for which they are trained.
We all know that the calling to public service
involves financial sacrifice. As with our clerk staff, we will never completely
stop talented people from leaving public service. But when the gap between the
private sector and public service gets too large, good people will not sacrifice
their families’ financial interests to answer the call. My greatest fear is that
we will lose the ability to attract enough of the state’s finest lawyers to
public service in the Judiciary.
I have one other request affecting the judicial branch that I make sincerely and respectfully: Let us consider the needs of the Judiciary and the state as a whole when evaluating local requests for additional resources. We in the judicial branch are aided in developing a statewide approach for the allocation of resources by judges from around the state who serve on our circuit court budget committee. I know that some of you have ideas for improving the use of our resources even beyond the efforts that we have made to assign judges to areas of critical need and to enlist the good work of senior judges in meeting those needs. We stand ready and willing to work with you, as constitutional partners, to improve the rational allocation of our resources.
I have one other request affecting the judicial branch that I make sincerely and respectfully: Let us consider the needs of the Judiciary and the state as a whole when evaluating local requests for additional resources. We in the judicial branch are aided in developing a statewide approach for the allocation of resources by judges from around the state who serve on our circuit court budget committee. I know that some of you have ideas for improving the use of our resources even beyond the efforts that we have made to assign judges to areas of critical need and to enlist the good work of senior judges in meeting those needs. We stand ready and willing to work with you, as constitutional partners, to improve the rational allocation of our resources.
OTHER
PARTNERSHIPS THAT HELP THE STATE
Judicial
effectiveness clearly does not rest on financial resources alone, nor is it
solely the product of courts’ efforts. It relies heavily on how we work with our
other partners in this system of justice: law enforcement officers, prosecutors,
public defenders and other attorneys. Members of The Missouri Bar contribute
greatly to the cause of justice, not only as officers of the court but also
through their volunteer efforts as pro
bono attorneys, as members of Bar committees, and in
other types of public service and civic leadership.
The public service of our law enforcement community is sometimes heroic
and well known, but it is in their everyday efforts that they serve as frontline
defenders of the rule of law. We continue to seek ways in which we can better
cooperate and communicate with law enforcement, particularly through our ongoing
commitment to court technology. The demands of recent legislation such as the
sex offender registry, as well as the impending federal mandate to communicate
commercial driver license revocations to other states, require us to be
administrative partners in new and innovative ways with law enforcement. We seek
your cooperation and support in these important efforts.
Likewise, we look to both prosecutors and public defenders on matters of mutual importance to the administration of justice. In this current session, we in the judicial branch pledge to work with these groups toward resolving some of the issues relating to administration of trials and other matters of mutual interest. We further pledge to work with the public defender system in whatever way possible toward the attraction and retention of employees and toward the alleviation of its ever-increasing caseload. When I spoke earlier of the challenge of attracting and retaining good public servants, those words echo all too loudly in light of the crisis facing our public defender system. Often the test of a system of justice is not how it treats our best citizens, but how it treats those who appear to be our worst. No system of justice can be effective without adequate legal representation for criminal defendants. It is in the interests of all of us – even if it were not a constitutional requirement – that those whom the state deprives of liberty or life are guilty in fact and law of the crimes they are charged with committing. This goes to the legitimacy of the rule of law.
THE RULE OF LAW: A LIVING PRINCIPLE
So, are we there yet? Can Missouri be said to have a fully independent, accountable and adequately supported Judiciary? Well, we may not be there yet, but we know the way.
A recent national survey shows that most Americans want strong courts that will protect their individual rights, that will offer equal access to justice for all people, that are accountable to the constitution and the law, and that are free from the influence of politicians and special interest groups. If we are to be responsive to those ideals and to the values of our citizens – fundamental principles of this nation – then it is most important to strive for these goals above all else.
Likewise, we look to both prosecutors and public defenders on matters of mutual importance to the administration of justice. In this current session, we in the judicial branch pledge to work with these groups toward resolving some of the issues relating to administration of trials and other matters of mutual interest. We further pledge to work with the public defender system in whatever way possible toward the attraction and retention of employees and toward the alleviation of its ever-increasing caseload. When I spoke earlier of the challenge of attracting and retaining good public servants, those words echo all too loudly in light of the crisis facing our public defender system. Often the test of a system of justice is not how it treats our best citizens, but how it treats those who appear to be our worst. No system of justice can be effective without adequate legal representation for criminal defendants. It is in the interests of all of us – even if it were not a constitutional requirement – that those whom the state deprives of liberty or life are guilty in fact and law of the crimes they are charged with committing. This goes to the legitimacy of the rule of law.
THE RULE OF LAW: A LIVING PRINCIPLE
So, are we there yet? Can Missouri be said to have a fully independent, accountable and adequately supported Judiciary? Well, we may not be there yet, but we know the way.
A recent national survey shows that most Americans want strong courts that will protect their individual rights, that will offer equal access to justice for all people, that are accountable to the constitution and the law, and that are free from the influence of politicians and special interest groups. If we are to be responsive to those ideals and to the values of our citizens – fundamental principles of this nation – then it is most important to strive for these goals above all else.
The ideals
and values of the people are not expressed only in surveys. They are in our
souls as Americans. From the beginning of the American Revolution, our people
have understood the consequences of failing to have a judicial branch that is
independent, accountable and adequately supported. The signers of the
Declaration of Independence certainly understood what oppression could be
inflicted by those in power when those values are ignored. The signers
understood that it was necessary to have a stable justice system to protect the
people from tyranny. We all remember “Life, Liberty, and the Pursuit of
Happiness” enshrined in the Declaration of Independence. But consider, to be
specific, some of the grievances in the Declaration against King George III, who
deprived us “in many cases, of the benefits of trial by jury” and transported us
“beyond seas, to be tried for pretended offenses. … [H]e has obstructed the
administration of justice, by refusing his assent to laws for establishing
judiciary powers.”
As Americans in the 21st century,
we intuitively value the checks and balances that are the hallmarks of our
democratic republic, the protection of the rights of individuals, and the
fundamental sense of fairness embodied in what the constitution calls due
process of law. Our ideals and our goals are worthy of our constant efforts,
individually and with you, our constitutional partners.
Today, in Missouri, we are responsible for administering justice in the highest sense of which we are capable … to be fair and impartial; to be free of undue influence; to be accountable to the law and not to the popular will; and to be effective and consistent in the exercise of proper judgment.
We pray that we are up to the challenge of providing a forum where the people peaceably can resolve their disputes and their legitimate constitutional grievances against their government. It is a challenge that we approach humbly and in full recognition of the limitations of the judicial role.
I offer you our cooperation, and I ask for your support as we continue our ongoing, mutual pursuit of a Judiciary that lives up to the ideals expressed in our state’s motto. Thank you very much.
Today, in Missouri, we are responsible for administering justice in the highest sense of which we are capable … to be fair and impartial; to be free of undue influence; to be accountable to the law and not to the popular will; and to be effective and consistent in the exercise of proper judgment.
We pray that we are up to the challenge of providing a forum where the people peaceably can resolve their disputes and their legitimate constitutional grievances against their government. It is a challenge that we approach humbly and in full recognition of the limitations of the judicial role.
I offer you our cooperation, and I ask for your support as we continue our ongoing, mutual pursuit of a Judiciary that lives up to the ideals expressed in our state’s motto. Thank you very much.