This article first appeared in the St. Louis Beacon, Sept. 5, 2012 - Of the 51 judges up for retention in Missouri at this fall’s election, only one – Associate Circuit Judge Dale W. Hood in St. Louis County – received a survey evaluation low enough that he not be recommended to stay on the bench.
The survey results, released Wednesday by the Missouri Bar, were compiled from questions asked of lawyers, judges and jurors. To gain a recommendation for retention, judges had to have a score of 2.85 or better on a scale of 1 to 5.
In Hood's case, he did not receive a score that high on any of the questions asked of lawyers except in the categories of “efficiently manages his docket” and “issues timely opinions/decisions.” In each of those categories, his score was 2.93.
The survey of his peer judges ranked him higher, with scores of at least 3 in every category and a 4 to the question of efficiently managing his docket.
In the case of Hood, there were no juror scores because he has served as a Family Court judge for most of his tenure since being appointed to the bench in 2005. For cases on his civil docket, most were heard without a jury, said Bruce Hilton, a lawyer who chaired the survey process in St. Louis County’s 21st judicial circuit.
Hilton said that the survey committee does not have any discretion in recommending judges for retention if they fail to reach a score of 2.85, unless the judge appeals the survey results and claims extenuating circumstances. In Hood’s case, he told a news conference, no such appeal was made.
Hilton said that this was the second time that the survey had recommended that Hood not be retained. In 2008, after a similar conclusion, he received 54.25 percent yes votes in his retention election out of about 420,000 votes cast.
Hood did not respond to a request for comment on the survey's recommendation.
Associate Circuit Judge Ann Peebles in St. Louis was not rated in this year's survey because she is not up for retention. A judicial commission has recommended that Peebles be removed from the bench for a wide variety of complaints about her performance.
Since Missouri’s nonpartisan court plan was adopted in 1940, only two judges have been turned out of office, both in the Kansas City area. The plan now covers the state Supreme Court and Courts of Appeals as well as judges in the circuits covering the St. Louis, Kansas City and Springfield areas.
Asked what it says that so few judges have lost their jobs as a result of the popular vote, Lynn Whaley Vogel, president of the Missouri Bar, said, “It says we have great judges and citizens who are very happy with their judges.”
In the lawyer survey for Hood, his scores ranged from 2.13 for the category of “demonstrates appropriate demeanor on bench” to the 2.93 scores. Other low scores included 2.14 for “weighs all evidence fairly and impartially before rendering a decision” and 2.15 for “bases decisions on evidence and arguments.”
His lowest score in the judges survey was a 3.11 for “allows parties latitude to present their arguments.”
The full scores for Hood and the other 50 judges who will be up for retention in November are available online at showmecourts.org.
Explaining how the survey system has evolved since the nonpartisan court plan was instituted, Heather Hays, president of the Bar Association of Metropolitan St. Louis, said that it has grown from a simple yes/no question about retention in the early days to more detailed questions and broader participation by lawyers and non-lawyers alike.
At a time when changes to the plan are also going to be decided by Missouri voters in November – though not changes to the part where the fate of judges up for retention will be on the ballot – Hays said that “it’s more important now than ever that Missouri citizens have this information available to them…. Voters have the final say in Missouri’s nonpartisan court plan.”
Vogel said that the fact that all but one of the judges up for retention has won a favorable rating in the survey “is good news for the citizens of Missouri.”
Noting the role of non-lawyers in the process, Hilton said:
“They are the voice of the voters. As lawyers, it is often difficult not to protect one of our own…. This is a perfect example of why our nonpartisan court plan is so vital.”
On the Nov. 6 ballot, voters will decide the fate of Amendment 3, which would make key changes in the process of selection judges for the Missouri Supreme Court and the Missouri Court of Appeals.
Currently, the governor chooses members of the bench for those courts from a slate of three finalists whose names are forwarded by a commission made up of three attorneys, three appointees by the governor and a judge on the state Supreme Court.
The proposed constitutional amendment would give the governor an additional appointment to the commission and replace the Supreme Court judge with a former appellate judge who would not have a vote.
Backers of the amendment, which was placed on the ballot by the Legislature, say it would reduce the influence of attorneys on the nominating commission. But Vogel said it would inject more partisanship into the process and would be the “tip of the iceberg” in efforts to dismantle the system altogether.
She acknowledged that despite its name, the nonpartisan court plan is not totally devoid of partisan politics. But, she said, the changes that the amendment would make are not the best approach to amend the system.
“Nothing is apolitical,” Vogel said. “But it’s the least political way to choose judges. If anyone can recommend ways to make it less political, I’d be happy to consider it, but this is not the way.”