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A judge who asks: ‘Why?’

Wolff’s retirement could leave state Supreme Court without a law professor’s perspective

When Missouri Supreme Court Judge Michael A. Wolff steps down in August, the court will not only lose the service of an experienced judge. It also will lose its law professor.

Wolff is just the latest example of a line of law professors to sit on Missouri’s highest court. He taught at Saint Louis University School of Law for 23 years before he was a judge and will return the school after his retirement.

Supreme Court Judge Michael A. Wolff, left, heads to his seat on the bench. Wolff is leaving in August to teach at Saint Louis University School of Law. File photo

While it would be too much to say that the Supreme Court has a “law professor’s seat,” in recent decades the court has often had one professor in its ranks. Examples include: Elwood Thomas, a Supreme Court judge from 1991 to 1995 who taught at the University of Missouri; Charles Blackmar (1982-1992), who taught at SLU and, earlier in his career, at what is now the University of Missouri-Kansas City; and Joseph Simeone (1978-1979 and before that a state appeals court judge ), who also taught at SLU.

Law professors bring a different mindset to the bench than, say, practicing attorneys or trial judges might. They are able to ponder the philosophical underpinnings of a law or legal theory — which, depending on one’s point of view, can be refreshing or impractical.

As R. Lawrence Dessem, dean of the University of Missouri School of Law, put it, law professors get a chance to ask the “why?” and “why not?” questions.

“I would have these ‘why?’ questions,” said Dessem, a former lawyer for the Department of Justice. “But the ‘why?’ questions would be put to one side because my job was to represent my client and achieve a favorable outcome.”

Law professors, on the other hand, are regularly exposed to their students’ questions and misconceptions.

“There are no more critical individuals in the world than professors,” Dessem said.

There’s a lot of overlap between a law professor’s skills and those of a judge. Both have the time and inclination to delve into the arcane details of an issue.

“Law professors have the freedom of not being tied to a particular client at any time,” said David Achtenberg, a law professor at the University of Missouri-Kansas City and a former private practice attorney. “They also have the luxury of looking at an issue in far greater depth than any client would be willing to pay for.”

‘Always a teacher’

Like law professors, judges ultimately must instruct on the state of the law — something Judge Blackmar was well known for. When Blackmar died in 2007, former Supreme Court Judge Edward “Chip” Robertson remembered his colleague as “cerebral.”

“He was always a teacher, and that never changed when he was chief justice,” Robertson said at the time. “He just got a bigger classroom.”

On the bench, a law professor’s eloquent waxing can occasionally come back to bite him.

At its worst, that can produce theories that are brilliant but unworkable — the kind that Daniel A. Farber blasted in a 1986 article in Minnesota Law Review, “The Case Against Brilliance.”

Farber (himself a law professor, then at the University of Minnesota and now at the University of California, Berkeley) pointed to several rather high-flown theories in economics and law. He concluded that “if only a brilliant person can think of doing something, it is unlikely that most people will adopt that course of conduct. Most people, after all, are not brilliant.”

There probably aren’t too many Missouri Supreme Court decisions that fall into that category, but occasionally there are ideas that the author is more willing to propose than use.

In 1992, the Supreme Court issued State v. Sladek, which dealt with the admissibility of evidence of uncharged crimes. Judge Thomas, who had taught evidence courses, concurred with the decision but offered a separate opinion — equal in length to the majority’s ruling — in which he was “hopeful that some discussion of the theories involved and the labels used in discussing these principles will be helpful.”

The following year, Thomas’ finer points — he’d suggested that evidence of a “signature crime” could be introduced to corroborate a victim’s complaint — were adopted as the majority opinion in State v. Bernard. Thomas, though, concurred only in part, saying “having now considered that proposition further” he had changed his mind.

“Hindsight being better than foresight, I regret having planted the seed for an exception for signature crimes/corroboration in Sladek, particularly since I am now unwilling to go forward with that exception,” he wrote.

(In 2008, the Supreme Court overruled Bernard and essentially adopted Thomas’ retraction of his proposal. The opinion, State v. Vorhees, was written by Wolff.)

Of course, Thomas also practiced with Shook, Hardy & Bacon for 13 years before he took the bench, so his theories were usually tempered by practical concerns.

“In a sense, he brought the best of both worlds,” said former Supreme Court Judge Ann Covington, who served alongside Thomas. He died in 1995 while still on the court.

Newspaper reporter

Indeed, most of the law professors to serve on the bench have had significant experience outside the classroom. Wolff, for instance, was a newspaper reporter early in his career and was counsel to former Gov. Mel Carnahan.

Sometimes the law professor’s style shines through in written opinions. A good example is Wolff’s 2009 widely cited decision in J.C.W. ex rel. Webb v. Wyciskalla, which clarified when circuit courts have jurisdiction. He dismissed terms such as “personal jurisdiction,” “subject matter jurisdiction” or “jurisdictional competence” that had been in earlier court opinions to throw cases out of circuit court.

“As a brief review of ‘jurisdiction’ will show, the correct characterization is: none of the above,” Wolff wrote.

Dessem said, “You would not want a state Supreme Court with seven law professors.” By the same token, he said, one wouldn’t want a court composed entirely of former private practice attorneys either.

“I think you’re looking for a balance, but it’s helpful to have that perspective [of a law professor] represented somehow,” he said.

It remains to be seen if any law professors will apply for the opening. The Appellate Judicial Commission is accepting applications until July 8 and will begin interviews in late August.

Dessem said he was not aware of any professors who were considering the position. Achtenberg said he will not apply.