DON'T MUZZLE JUDICIAL CRITICS

Those of us who are interested in civil justice reform should focus our attention on St. Louis city and Jackson County, Mo. (Kansas City). In these jurisdictions, a Missouri Supreme Court rule intended to protect rural residents from the appearance of judicial impropriety has ironically resulted in an open season for plaintiffs who have little or no relationship with the state, city or county.

The trial bar has clouded the issue sufficiently that, until now, neither the Missouri Legislature nor its Supreme Court has been willing to address the problem and one courageous judge is being pilloried for trying to speak out.

Personal injury lawyers from all over Missouri and the Midwest to file lawsuit in St. Louis -- with cases often involving accidents that did not occur there. Why? Because St. Louis juries are notoriously pro-plaintiff and often hand out huge damage awards. Personal injury lawyers take as much as half of the awards as their fee, so they have every incentive to seek out places where judges are generous.

Unfortunately, court rules and venue statutes have turned St. Louis into a La Brea tar pit for defendants. Missouri's venue rule (Supreme Court Rule 51.03) restricts automatic changes of venue to those counties with 75,000 or fewer inhabitants. In counties of more than 75,000 -- such as St. Louis city and Jackson County -- the location change must be "for cause."

It is difficult to establish cause, and courts do not recognize unfairly generous juries as a reason to relocate cases. Nor has Missouri by case law or statute adopted the theory of forum non conveniens, which allows a trial judge to transfer a case to the most convenient forum, generally a county with the greatest connection to the cause of action.

The result is that many defendants can no longer receive a fair trial in St. Louis or Jackson County.

In 1992, Ralph Voss, an Osage County associate circuit judge from Linn, Mo., took on the issue. At a state judicial conference, he proposed common-sense changes that would allows change of venue in cases bearing no relation to the place filed. Voss' proposal was ruled out of order. In 1994, he wrote the Missouri Supreme Court asking for consideration of the proposed rule change. Beyond a promise to examine the issue, the court never replied.

Finally, last year Voss and members of the Missouri Press Association met with two members of the Supreme Court and were told that the matter would be referred to a committee. When pressed, the Supreme Court punted, pointing to a 1989 case William vs. McMillen, and asserted that reform has to come from the Legislature, not the Supreme Court. The Legislature, in turn, points to the Supreme Court and Rule 51.03. Again, nothing happened.

Nothing, except that Voss was brought up on four changes before the state Commission on Retirement, Removal and Discipline of Judges. The allegations all boil down to this: Voss has the temerity to question a litigation system that obviously benefits one party over another. Voss also suggested that an appearance of impropriety existed because the powerful clerk of the Supreme Court and the executive secretary of the Missouri Association of Trial Attorneys are husband and wife.

Last month, Voss was brought before the commission to answer for his sins. The hearing was closed to the public. There is no record. Interested parties who asked to attend were refused. The outcome is unknown, but last week Voss issued what we can only assume was a forced apology to "all judges who were offended" by his remarks.

And so a responsible jurist has been silenced by what the newspapers are calling an "inquisition" and a "lynching" simply because he spoke out publicly about something the trial bar didn't want us to know about.

Voss cannot be faulted for his passion about the integrity of the judicial system. What he is saying is right; the system is, in fact, broken.

Gravely concerned by these events, state Sen. Mike Lybyer, D-Huggins, has introduced a bill that would give Voss and all other Missouri judges the free-speech protections guaranteed by the U.S. Constitution. It is disturbing that a bill has to be introduced to remind the trial bar and the Missouri Supreme Court of Voss's First Amendment right.

Similarly, Sens. Peter Kinder, R-Cape Girardeau, and Lybyer have asked the Legislature to adopt a resolution urging members of the Missouri Supreme Court to annul or amend Rule 51.03 to end the two-tiered system that denies equal protection of the law to defendants in jurisdictions with populations of more than 75,000.

Lybyer and Kinder are also working to end the unfair advantage that plaintiffs' lawyers have in St. Louis by limiting the easy access to the court system there. Along with eight co-sponsors, they have introduced a forum non conveniens bill that would limits filing of cases in jurisdictions having little or no connection to the lawsuit. Right now, the fact that the plaintiff sees a St. Louis physician can be enough to allow an out-of-state case to be filed in St. Louis, even if the accident occurred in Arkansas and all of the parties are Arkansans. The bill would control that practice by properly limiting access to St. Louis courts.

St. Louis courts should be used by and for St. Louis citizens, not by out-of-state personal injury lawyers trying to "game" the system to generate larger fees. This problem is not going away. If the Supreme Court can't or won't deal with the problem, then the Legislature must, and now.

Missourians, including judges, deserve the right to speak openly and honestly on issues concerning the legal system -- especially when problems reach crisis proportions, as they have in St. Louis.

Missouri's citizens need to know its judges can and will bring problems to the attention of those who can correct them.

Special-interest groups should not be allowed to muzzle our judiciary. the Missouri Association of Trial Attorneys, in particular, should not have undue influence over the judiciary. If there are appearances of impropriety -- as Voss has alleged -- then the Supreme court must resolve them. Star Chamber tactics are not the answer; responsible action is.

We should applaud judges who speak form courage, point out flaws in the system and suggest well-reasoned solutions. We need judges like Voss -- courageous and true to their convictions.

Dick Thornburgh is a former attorney general of the United States. He is in private practice in Washington and is active in civil justice reform efforts. This column is from the St. Louis Post-Dispatch.