Lawyers object in debate over how circuit judges get their job

The only campaign promises judges should make, Missouri Supreme Court Chief Justice Michael Wolff recently opined, is to decide their cases fairly and always follow the law. Because unlike political candidates, he said, judges are handcuffed by the law and their opinions on issues don't really matter.

"Be wary of judicial candidates who take positions on issues, because they cannot deliver on their promises," Wolf wrote in a column. "Answers to issues, questionnaires or any campaign promises are not likely to tell you anything useful about how a judge will decide a case."

Sounds like campaigning for a circuit judge post might be pretty difficult. Or less than informative.

In most judicial circuits in Missouri, circuit judges are prohibited by law from campaigning on actual issues or even talking about the merits of their rulings. That leads some within legal circles to say that voters may not be the best informed when they cast their ballots.

Advocates of the Non-Partisan Court Plan say there's a better way. The plan is already in use for the state's appellate courts as well as trial courts in Jackson County, St. Louis County and the city of St. Louis. The plan calls the governor to appoint circuit judges. When there's a judicial vacancy, a judicial nominating commission made up of lawyers, judges and private citizens submit three names to the governor who then selects one of them for the judgeship.

Then, when the judge's term expires and then voters are asked whether a judge should keep his job. If the judge does not receive a majority of the votes, the office becomes vacant and the process starts all over.

Instead, elections for trial judges is basically a popularity contest, say some area lawyers.

"Basically it's a beauty contest," said Cape Girardeau attorney Allen Moss. "They can't actively campaign, they can't make commitment, they can't discuss how they would rule and they're not allowed to solicit money."

Missouri Bar President Doug Copeland said unlike politicians who build a constituency and serve the majority's interest, judges must serve the law and be open-minded -- something that runs contrary to taking positions on issues while on the campaign trail.

"You need a person that gives everyone their day in court and are totally impartial regardless of who the parties are," Copeland said in a recently published report. "Often you have very unattractive litigants, but a judge needs to sit there as an arbitrator and put the blinders on."

Moss said he believes Illinois has the best way to seat judges: they seek election when a vacancy occurs, and after that voters decide whether or not to retain them, a process almost identical to Missouri's Non-Partisan Court Plan.

"It takes the politics out of the judge' chambers and at the same time if they've done a poor job the voters still have the power to remove them by voting against retention," he said.

Lawyers who spoke to Business Today agree that judges need to be apolitical. They differ on how to achieve that.

Cape Girardeau lawyer Scott Reynolds believes judges should be elected. Frank Siebert of Scott City thinks they should be appointed.

"The people should have a say on who sits on the bench," Reynolds said. "If they were simply appointment by the governor, it would be totally political and that would be a bad thing."

Siebert, however, says having judges campaign every four years is not a good thing, especially when an election can be decided by who has more money to spend on a campaign that can add up to five-digit sums. One candidate can also have an advantage over another if he's better known in political or civic circles than for his legal expertise and wisdom.

To keep the bench impartial, he said, judges should be appointed.

"When you are running for office, you are trying to please the voters," Siebert said. "They want to know how you are going to treat them if they come before you in court."

Siebert said if a powerful person who carries a lot of weight in the community were to come before a judge in court, the judge's decision might be influenced by how much damage that person could do to his chances of re-election.

"If a judge were appointed he would be able to make an unpopular decision and not worry abut the consequences of an election," Siebert said. "A judge may decide the law says a city should be allowed to annex property it needs for industrial development that would benefit a lot of people. You don't want to second guess how that's going to affect your ability to garner votes in that city."

Appointing a judge, Siebert said, should guarantee impartiality.

"Judges have to make decisions based on the law as opposed to what is popular," he said. "Running for office makes this difficult for good judges to do that."

Siebert said when he ran for judge he found that people wanted him to commit to certain issues before they'd commit to his candidacy. Appointing judges would, he said, eliminate that.

"Good politicians and good judges can go together," he said, "and sometimes they don't."