Wednesday, January 30, 2008

Money Talks - Do We Want Our Judges Listening?

Among all the talk surrounding right-wing attempts to alter our Missouri Plan for judicial selection, one fixed truth remains: Every single proposal being bandied about by the opponents of the Missouri Plan increases the influence of money and partisanship. Everyone one of them. No exceptions.

Fortunately, we can look at other states and see what happens when we increase the role of money in the process. In yesterday's New York Times there is a disturbing article about the tendency of judges to vote in favor of those who gave them money. Rather than relying on anecdotes and rumors, the article reports on a statistical study that found, among other anomalies,
Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.

When opponents of the Missouri Plan come talking about ways to increase the role of money and partisanship in our judicial system, keep this study in mind. Think about whether you think that our bench would be better if we had more money and partisanship involved. Think about whether, right now, you trust the wisdom of our Missouri Supreme Court more than the wisdom of our Missouri General Assembly.



Blogger les said...

And keep in mind that for the proponents, that outcome is a feature, not a bug. Yet another try to scare people into voting against their own interests--and why not? It's working fine so far.

1/30/2008 8:20 AM  
Blogger whistleblower said...

From the NY Times Article.
”But you do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts around the nation. All you need to do is listen to Professor Palmer. If a judge has taken money from a litigant or a lawyer, Professor Palmer says, the judge has no business ruling on that person’s case.”

There lies the problem with writing such an ambiguous article. According to Professor Palmer, if you donate to a judge's campaign because you think he/she will be fair and impartial, you shouldn't appear in front of that judge. -Then why do you want them on the bench?

Just because I support a change to the Missouri Plan, doesn't mean that I think popular election is the proper remedy. True integrity cannot be bought or sold. Partisanship and partiality are flaws of the judge, not of those that placed them on the bench. The currently accepted practice of blaming others for our own failures has evidently spread to the Judiciary. Maybe it is time to stop calling someone “honorable” just because of the position they hold, and wait until they have displayed character deserving of the title.

I don’t want partisan judges on the bench. I want the Missouri Plan to be changed because of the Missouri Bar’s control over the selection and disciplinary processes.

When the Missouri Plan was adopted in 1940, the Missouri Bar was not a committee of the Missouri Supreme Court. It wasn't until 1944 that by Court Rule, the Missouri Bar became a committee of the Missouri Supreme Court.

"The Missouri Bar is the official organization of all Missouri lawyers and judges. Established by rule of the Supreme Court of Missouri in 1944, it is the successor of the original Missouri Bar Association, a voluntary organization of lawyers founded in 1880." Source- Missouri Blue Book page 334.

In 1970, a Constitutional Amendment gave the court the ability to discipline their own. In 1972, the Missouri Supreme Court created the Commission for Retirement, Removal, and Discipline of Judges, Rule 12.

In 1976, the Plan was amended to remove the governor’s ability to reject the nominees. Now, the only elected official involved in the process, is forced to appoint whomever the Bar dominated committee picks for him, or they will pick for him. I don't think that falls under democracy or representative republic. I call that an oligarchy.

Also in 1976, the Missouri Supreme Court created rule 12.21, which made all complaints filed with the C.R.R.D. hidden from public view unless their bias (I say bias, as the commission is made up of 2 judges, 2 attorneys, and 2 gubernatorial appointees. 4 of the 6 must agree before a formal investigation is initiated. Therefore, the Bar members have an unchecked ability to hide complaints if the choose to do so) Commission decided to initiate a formal investigation. Think about this for a minute. If you file a suit against me, it becomes public record. Anyone can look at it. If you file a complaint against a judge, it will most likely be hidden. Why? To create the perception of a fair and impartial court.

Last, but not least; Retention Elections are a Sham.

The first judge to lose a retention election was Marion Waltner in 1942. The reason for his loss was probably due to support from Pendergast. As Pendergast was one of the reasons the Plan was adopted, that would make sense. Judge Waltner might have been a very good judge. It was politics, and not a display of incompetence that was, most likely, the cause of his removal.

The second judge to loose retention was Judge Hutcherson in 1992. Three Bar Associations, including the Missouri Bar Association, gave Judge Hutcherson poor reviews, and the voters decided to remove him from the bench in Clay County.

And now, the rest of the story. Whatever happened to Judge Hutcherson? Remember, the Missouri Bar Association, a committee of the Missouri Supreme Court, gave him such a poor review? The Missouri Supreme Court, in their infinite wisdom, and with total disregard for the welfare of litigants, placed him in Senior Judge status. In 2006, I found him on the bench in Camden County. He was serving as a full-time judge, for half pay. This wasn’t just a mistake. He was boasting about what a good deal it was for the taxpayers. Not such a "good deal" for litigants. This article was originally published in Missouri Lawyers Weekly

I doubt the Missouri Bar bothered to insure that every litigant that appeared in front of Judge Hutcherson in Camden County was informed about how bad they thought the judge was.

As the Bar has stated that: "good faith suggestions to improve the Plan are welcome", maybe they need to look outside of the Bar for input. Are the members of the Bar really so arrogant as to think that someone, other than a lawyer, could not develop a method for selection and retention that would more effectively remove partisanship, increase accountability, and leave those selected for the bench less likely to be beholding to any entity? I hope not.

1/30/2008 11:10 AM  
Anonymous Whistleblowme said...

Shorter version of the above comment:

"Yes, I want to have more partisanship and money involved in choosing judges."

The rest of it doesn't make any sense.

1/30/2008 11:46 AM  

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