Viewpoint: Non-partisan court plan should not be extended to rural counties

Comedian Jerry Seinfeld describes a lawyer as being like the only kid playing a board game who has actually read the rules of the game. When the dice are rolled and a piece lands on a particular spot, all eyes turn to the only kid who read the rules to find out what happens next. Another wag likened trial judges to football referees. Both preside over rough-and-tumble contests to make sure each side plays by the rules.

The two pithy comments come to mind when I consider whether Missouri's Non-Partisan Court Plan should be expanded to become the way trial judges are selected in Missouri's rural counties.

The Non-Partisan Court Plan does a fine job of selecting judges for our appellate bench and for the trial courts in the big cities, but it would not be the best way to choose our trial judges in our smaller communities. This is because of the difference between the job-descriptions of appellate judges and trial judges, and because size truly does make a difference on this issue.

As to the job-descriptions.

An ideal appellate judge is a true legal scholar, an extremely intelligent person who enjoys spending time in law libraries. This bookworm uses his or her tremendous intellect to find every bit of precedent on point and write an understandable published opinion following the law and taking its place as binding legal precedent for future generations. This is probably not a person who would survive a statewide election, where the winner will be the best politician, supported by big money, able to buy the most television advertising and to produce the most memorable thirty-second soundbites. Our Non-Partisan plan has proven to be the best method of selecting our Supreme Court and Court of Appeals judges because it allows applicants to be screened by a knowledgeable committee charged with the duty to weed out those who are not truly legal scholars. Those who fit the job-description actually have a shot at getting the job.

On the other hand, the job-description for a trial judge is a bit different. The wag comparing trial judges to football referees went even further and claimed that a group of competent and experienced referees could be given a six-week crash course on trial procedure and law and could afterward preside over courtroom trials as well as most trial judges in the country. If this is not true, it is not far from the mark. For trial judges, legal scholarship is nice, but optional, like whitewalls on tires.

Trial judges are not making the law. They are following the law presented to them. They read the law cited by both sides and choose which to follow.

If they are wrong, they get reversed by the appellate courts. Most importantly, they serve as the impartial umpire between opposing sides.

They make sure both sides follow the rules of evidence and procedure and that every litigant in the courtroom receives a fair trial. They run their courtrooms with dignity and decorum. The trial judge is the face of the legal system in the community, often the only judicial face the public ever sees.

In the big cities, the Non-Partisan Court Plan has proven to be a workable way to select trial judges. In a metropolis like St. Louis, it is unlikely the public will ever meet the judicial candidates. The voters will form their opinions from media coverage and paid advertisements. Having a committee of lawyers, judges and private citizens choose the big city trial judges works well in those areas because a better chance exists that competent people are being selected. But don't pretend the system is free of politics. The members of the commission are appointed by the Governor.

Lawyers who know members of the commission get calls all the time from judicial applicants wanting their mutual friend to put in a good word for them. Judicial applicants are asked to list five references, and the best references of all are close friends of the members of the commission. So, politics is still involved to a certain degree, but it is out of sight, under the radar, and much cheaper than the public brawl of a contested election.

That's why size does make a difference.

In a rural community, the candidates for judge are running in a relatively small geographical area. An associate judge will be running in just one county. A circuit judge will be running in just a couple of counties making up his or her circuit. (Locally, the 32nd judicial circuit consists of Cape Girardeau, Perry and Bollinger counties.) The cost of the election will not be exhorbitant. A very real chance exists that the people voting for the judge will actually know the candidate. They may have met him, gone to school with him, visited with him at PTA meetings, sat next to him at church, chatted with him at a service club meeting or actually watched him in action while serving as a juror or as a witness in his courtroom. If they don't know the judge personally, a good chance exists they will ask around and talk with people who do know the candidates before casting their vote. The risks of negative campaigning are relatively small, because mud-slinging usually backfires in a small community.

Ask yourself this question. Do you want a chance to personally vote for your choices as the men and women to serve as the two circuit judges and two associate circuit judges in Cape Girardeau County, or do you want a committee of people you have never met, appointed by a Governor you may not have voted for, to choose them for you?

I vote for local choice.

Morley Swingle is the prosecuting attorney for Cape Girardeau County.