27
December
2019
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05:55 PM
America/Chicago

Chief Justice delivers address at 2019 Annual Meeting

Vol. 75, No. 6 / November - December 2019

Summary

The Honorable George W. Draper III, chief justice of the Supreme Court of Missouri, delivered the following address during the Opening Luncheon of the joint annual meeting of The Missouri Bar and the Judicial Conference of Missouri on September 19, 2019, in Branson.

The Honorable George W. Draper III, chief justice of the Supreme Court of Missouri, delivered the following address during the Opening Luncheon of the joint annual meeting of The Missouri Bar and the Judicial Conference of Missouri on September 19, 2019, in Branson.

President Bender: Thank you for that introduction. I am so excited to be here today, celebrating the past 75 years of the relationship between the judiciary and The Missouri Bar. I am confident the Bar will continue to thrive and successfully support our state’s lawyers and judiciary for the next 75 years.

I Chief Justice Draperam presently the eldest member of the Court – but have no fear. To guard against my infirmity and allow myself to be an example of service until 70 and beyond, I am enhancing my diet with a supplement for the brain containing an ingredient only recently found in jellyfish. I do hope it’s working. Now, let’s see, where was I?

Oh yes. The law has always been an important part of my family. I am the great-grandchild of a North Carolina slave girl and a Union soldier on my mother’s side and a dark-skinned black man from Florida and a fair-skinned German girl from New Jersey on my father’s side. My parents, like my wife and I, met at Howard University in Washington, D.C.

Upon earning his master’s in law in 1948, my father was advised of a position on the faculty of Lincoln’s law school in St. Louis. I hope you all are aware that our legislature created Lincoln University School of Law as a result of the suit Lloyd Gaines filed in 1936 to challenge the University of Missouri’s failure to admit Negroes to its law school. And I hope I don’t have to remind you that the U.S. Supreme Court’s 1938 decision requiring either admittance or creation of a suitable alternative is the mechanism that compelled the legislature to act.

So, the law school opened in 1939 and, 10 years later, my father – in an effort to support his wife and fulfill Howard law school’s mission to its community – became a professor of law in St. Louis. Some of you may remember a time when Negroes were admitted to practice law in Missouri but could not be educated in the profession alongside white students.

In 1953, just before the U.S Supreme Court issued Brown v. Board of Education in 1954, I was born in St. Louis at the old Jewish Hospital while my father was serving as an assistant circuit attorney in the city of St. Louis. On a public servant’s salary, my two brothers and I lived with our parents in north St. Louis, where we were educated in the public school system. Now that was before my father served as an assistant attorney general in Jefferson City, where he was prevented from dining in the same restaurants as his white colleagues because the Supreme Court had not yet decided Katzenbach v. McClung.

During the early 1960s, my family moved to the Maryland suburbs of Washington, D.C., where my father was eventually appointed a judge of the Superior Court of the District of Columbia. My mother worked at the Consumer Product Safety Commission, and later at Head Start as the national director of parent participation. Molded in that household and the environment of protest and reform of the 1960s, I attended Morehouse College in Georgia in the mid-1970s, law school at Howard University until 1981, and have been a Missouri lawyer since 1984.

So you will not think me uxorious at the end of this presentation, I inform you now my wife has been a Missouri lawyer since 1980. You see, she has always been ahead of me. She graduated from Howard’s law school a year before me, passed the Missouri bar before me – and the Pennsylvania bar as well – and worked as an assistant circuit attorney in the city of St. Louis before I was hired there. In fact, I’m pretty sure I got the job because the circuit attorney was so impressed with her! She’s had quite a career as a Missouri lawyer and judge. Let me introduce her: my wife of 40 years, former associate circuit judge, the Honorable Judy P. Draper.

Now with her is the most educated member of my family, who acquired her J.D. from Washington University but also, like her grandfather, had the intelligence and wisdom to earn an LL.M. She has earned her LL.M, however, in international financial law from King’s College in London. She now works in the St. Louis County prosecutor’s office as deputy chief of staff. Let me introduce my daughter and favorite young Missouri lawyer, Chelsea W. Draper.

Now as you see, my family has long been invested in the achievements of Missouri lawyers, the success of The Missouri Bar, and the integrity of the Missouri judiciary.

After a decade in the St. Louis city circuit attorney’s office, I worked my way through the judiciary. After 25 years on the bench, I have come to appreciate the Court in its broadest sense, as an institution existing well beyond the seven of us who may sit at any given time.

I consider our Court conservative in its jurisprudence, yet proactive in its policies. My predecessors in this position have led the Court in some significant accomplishments – building electronic filing and case management systems from the ground up; leading the way with the Uniform Bar Exam; and making meaningful and significant changes to our municipal, juvenile, criminal, and civil justice systems. Additionally, our treatment courts are on the front lines, helping us fight the opioid crisis in our state by adopting treatment court standards. We should take this time to thank these judges for their important contributions to our legal system.

Most significant and timely is our racial and ethnic fairness commission, which is taking a holistic view of our entire profession and recommending a myriad of improvements. Supporting that work, my colleagues at the Supreme Court and I are doing what we can to help educate lawyers and judges about the harm our biases can have on our profession. The entire judiciary – all judges and all employees – now have undergone implicit bias training. And, effective in July, ethics rules for attorneys and judges expanded protections against bias, prejudice, and harassment. Furthermore, beginning with the current reporting year, all judges and lawyers must have one hour of “elimination of bias” training among their 15 hours of required continuing legal education. In fact, there is a session at 8:30 a.m. tomorrow to help you meet this mandate. I look forward to seeing you there.

Some have questioned the policy behind this new CLE, but let me tell you, this is one imperative in which we are way behind. The corporate world long ago recognized the need for diversity, inclusion, and a real understanding of the racial bias that divides and threatens community, industry, democracy, and profit. Major law firms, national and local, are requiring anti-bias, anti-racism (or ABAR) training for their attorneys and all their employees. Their clients are demanding truly diverse representation, and the firms are working to improve their cultures so their minority attorneys can thrive.

The need to address and remedy bias is at the nation’s forefront. Just last month, the New York Times announced its 1619 Project, named for the year when the first enslaved Africans were brought to Virginia and sold to the colonists. While not an anniversary to be celebrated, the project aims to reframe our nation’s 400-year history since then in the context of the consequences of slavery and in light of contributions of black Americans to our society. But lest we forget, the history of our country includes the maltreatment of other minority groups as well.

Without addressing bias, we perpetuate the founders’ original sin, which directly led to the Freedom Suits, the death of hundreds of thousands in our Civil War, and post-Civil War terrorism, which was often left unchecked by the courts. Implicit bias and racism infect our profession as they do society as a whole. They inhibit our cultural growth, impede the progress of minorities into the profession and onto the bench, and even threaten the welfare of the Missouri nonpartisan court plan.

To offer some perspective: In 1984, when I became a Missouri lawyer, the judges statewide included only 16 Caucasian women, four African-American men and one African-American woman. Of these, the nonpartisan court plan had facilitated the appointment of seven of the women – including the lone African-American woman – and all four African-American male judges. All of these were on our trial courts – no woman and only one black man had been appointed to the appellate bench, and neither to the Supreme Court.

Now by 2004, judicial diversity had improved. The Supreme Court had its first African-American man serving as chief justice, and one Caucasian woman. Our appellate bench, out of 32 members, included one African-American woman, seven Caucasian women, one Hispanic man, and two African-American men (including me). The trial bench included 46 Caucasian women, 11 African-American women; nine African-American men; one Hispanic woman; and one Hispanic man. Of the judges then serving statewide, the nonpartisan plan had facilitated the judicial appointment of 29 of the Caucasian women, all 12 African-American women, and all 11 African-American men.

But as you know, selection is only one piece of the nonpartisan court plan. Another piece involves retention elections – but how voters have been informed has been by trial and error.

In 1948, when no minorities or women served on the judiciary, The Missouri Bar simply surveyed lawyers to vote yes or no as to whether a judge seeking retention should be retained and made the results of these surveys public. First participating in retention elections in 1980, women judges – including African-American women judges – did well with voters, earning higher percentages of “yes” votes than their male counterparts.

In 1992, however, responding to a significant downturn in retention percentages for nonpartisan judges across the state, the Bar expanded its survey, asking lawyers to “grade” judges on a scale of 1 to 5 using criteria such as courtesy, integrity, and legal analysis. Now anecdotally, African-American judges across the state began noticing their ratings were lower than their Caucasian – and particularly their male Caucasian – counterparts.

Not until 2006 did anyone attempt to quantify, through a data study, the apparent disparity between the genders and races in the bar surveys. Two years later, the Court required the Bar to establish review committees – one for each nonpartisan trial court and one for the appellate courts – to conduct “judicial performance evaluations” of judges facing retention. The JPEs, as they are called, had been used for decades in a number of other states.

Even after the JPE process was established, minority judges continued to receive lower ratings than their white male counterparts, but no one – including me – spoke out, as it seemed only natural that a bar dominated by white men would “like” and find more “popular” judges coming from their neighborhoods and churches. I wish I had said something then, because the impact of implicit bias only became more acute.You may think this is just about my family, and to some extent, it is. But it goes so much further than the result of any one judge’s retention election. This issue is about all the lawyers who leave their practices behind to become judges, and it crosses racial lines. Being a judge is a position of honor and sacrifice. We owe it to all our nonpartisan judges – and especially to women and judges of color – to ensure any rating we give them comes from a system as free from implicit bias as we can make it, and it is truly based on an objective evaluation of their performance in office.To more fully expand upon this, I’d like to involve all of you in a hypothetical – we like those, right? I do – I’m a former prosecutor. So, everyone, please raise your right hand. Now all of you are members of our grand jury.

The case I will present to you today involves Endangering the Welfare of the Missouri Nonpartisan Court Plan. I will focus on just one geographic area of the plan – St. Louis County – and I ask you to consider three groups: 1) the lawyers; 2)  judicial performance review committee members; and 3) the news media.

Let’s begin with the evidence against the lawyers, establishing their culpability by revealing the strong influence of implicit bias, further aggravated by the unprecedented weaponization of a plan altruistic in design but abused in implementation.

Prior to 1994, with no male African-American circuit judges and only two female African-American associate circuit judges, county lawyers rated those females lower than their white counterparts. In 2006, the county’s three female African-American associate circuit judges were rated significantly lower than their male counterparts, causing a specialty bar to commission a study by a well-regarded professor and scholar, who ultimately found disparity in evaluation results in St. Louis County and city.

Two years later, in an effort to address these disparity issues, the Supreme Court of Missouri required the Bar to establish review committees – one for each nonpartisan trial court and one for the appellate courts – to conduct JPEs of the judges facing retention. But disparities continued. So in 2016, the Court abolished the individual committees, replacing them with one statewide judicial performance review committee to help make the JPE process more uniform and, we hoped, less subject to bias.

But even with these efforts to ameliorate bias, some lawyers in St. Louis County actually began weaponizing the plan, attacking not only African-American female judges but also, in 2014 and 2016, turning the process on two Caucasian male judges by giving them exceptionally low ratings.But consider whether this phenomenon actually speaks to the quality and lack of professionalism of attorneys in St. Louis County rather than the quality and professionalism of judges they review. Significantly, the low ratings have been given only for associate circuit judges.

Last fall, after analyzing the 2018 JPE data, the professor again concluded St. Louis County lawyers had provided implicitly biased reviews that became the foundation for implicitly biased recommendations made by the judicial performance review committee, resulting in lower ratings for the county’s African-American women judges as a group.

Now, grand jurors, turn your attention to the judicial performance review committee, whose acts have had unintended and, from my perspective, harsh consequences.

The committee members – who undergo no training as a group – serve as both a factfinding and an appellate body for judges seeking to have their original scores reviewed. Despite the professor’s 2006 report, they failed to account for implicit bias in attorney reviews in scoring judicial performance. They failed to conceive of a mechanism to ensure fair reporting about the meaning of the scores the committee generated. When the media got it wrong, the committee gave no meaningful or timely explanation. I’m not here to demonize anyone, and I assume this was unintentional. But these missteps and failures were nonetheless irresponsible and fall well below professional standards.

Now, grand jurors, turn your attention to the final defendant: the news media. The evidence shows an unwillingness to accept its responsibility in reporting this information accurately and fairly to the public. When confronted with its misinterpretations of the 2018 JPEs, the media said only: “We do not have the time or resources to have a reporter in every courtroom and must rely on the information we receive.”

Abdicating responsibility to fully investigate and honestly inform the public is inexcusable. We all understand the media are struggling economically. But in this age of misinformation and disinformation, no major news organization can afford to abandon its responsibility to investigate thoroughly and impartially, and then honestly provide accurate information to the public.

The real crime is the failure of each defendant to examine the reliability of the original information it received and has allowed some within a single jurisdiction to weaponize our Missouri Plan, encouraging others to believe they, too, can or must attack sitting judges. During the 2018 election cycle, after the incorrect editorial was published, at least one major civil rights organization published a “score card” giving a failing score to three Caucasian St. Louis-area judges – two in the city and one in the county. Never before had this occurred anywhere in Missouri, and certainly not against only associate circuit judges.

Given all the evidence, I ask you to issue a true bill.

Now, as I am sure you have surmised, my hypothetical was not so hypothetical. And lest you think less of my colleagues, please know I alone take full responsibility for this hypothetical.

But I also remind you there is a reason the Court has mandated implicit bias training throughout the judiciary and has amended Rule 15 to require “elimination of bias” training! Clearly, I am discouraged by the effect of implicit bias on our JPE system, but I will continue to support the Missouri Nonpartisan Court Plan.

Do not misunderstand me. I believe in the integrity of the nonpartisan court plan, and the good it has done and continues to do. Our state is not just black and white. The most recent demographics show approximately 18 percent of our state’s residents are racial minorities, while our judges statewide are approximately nine percent minority. This could not have happened without the Missouri nonpartisan court plan. But we can, and must, do so much better.

We could choose to follow the example of states such as Illinois by ensuring the criteria by which we evaluate our judges are designed to reduce biased responses, instead focusing on concrete, objective, directly observed judicial behaviors. And then it is incumbent on all our attorneys, across the state, to act ethically and responsibly in evaluating judicial performance if the plan is to survive.

We are leaders. We are innovators. But we also must be collaborators. We must act as a fully integrated Bar – in every sense of the phrase – and finally pull our feet from the mud. Those recalcitrant practitioners, mired in their unconscious bias, who perpetuate the myths and lost causes of discrimination must, if unwilling to be educated, be exposed and marginalized.

Your responsibility, our responsibility, is not hypothetical. Weaponizing our nonpartisan court plan against any particular class of judges hampers its effectiveness and encourages exactly what it was designed to check – politicization and tampering by forces seeking to gain greater influence on the composition and independence of our judiciary.

Issue the true bill and commit to doing the hard work to make our profession, our court plan and our judiciary a model of fairness for all!

Thank you.