In his first year and a half on the Missouri Supreme Court, Judge W. Brent Powell has shown himself to be both cooperative and conservative.
Powell’s voting pattern appears to put him closer to the court’s center than to its edges, and it’s about to get its first public review. Voters on Nov. 6 will assess Powell, whom former Republican Gov. Eric Greitens appointed last year in the wake of Judge Richard Teitelman’s death in late 2016.
Under the Nonpartisan Court Plan, Powell and other nonpartisan judges must face a retention election shortly after they join the court. If retained, Powell would serve a 12-year term before facing retention again.
Powell’s voting record to date most closely matches that of Chief Justice Zel M. Fischer, according to an analysis by Missouri Lawyers Weekly. Fischer and Powell — both named to the court by Republican governors — have voted on the same side in 75 percent of split cases issued since Powell joined the court. Powell was least likely to vote with Judge George W. Draper III, a nominee of Democratic Gov. Jay Nixon. Powell and Draper had a 30 percent agreement rate.
At the same time, Powell is significantly less likely to break with his fellow judges than either Fischer or Draper are. So far, Powell has sided with the majority in 75 percent of the split cases in which he’d participated, and he has yet to author a solo dissent or concurrence.
Both Draper and Fischer, in contrast, frequently write separately from the rest of the court and are the two judges least likely to be in the majority.
Powell declined a request for an interview about his voting record. But the pattern fits well with the former Jackson County circuit judge’s reputation for collegiality.
In April, at an appearance at the Jackson County Law Library in Kansas City, Powell said that when he applied for the Supreme Court in 2017, he constantly praised other lawyers’ and judges’ work as better than his own — to the point that he said the chief justice told him to work on his answers: “This self-deprecating, ah-shucks guy is only going to get you so far.”
Missouri Lawyers Weekly examined 35 split decisions issued between May 2017 and September 2018, marking the period in which Powell has been a member of the court. Split cases are those in which at least one judge wrote a full or partial dissent; concurrences are counted as majority votes. Such a review is necessarily limited — not all judges took part in every case, and Powell took part in just 20 of those split rulings.
Under the Nonpartisan Court Plan, the party of the appointing governor isn’t always a good gauge of a judge’s ideology. While Greitens was a frequent critic of Missouri’s tort system, Powell has been on both sides of major tort cases.
Powell has authored 12 cases since joining the court. In his first authored opinion for the Supreme Court, Barron v. Abbott Laboratories Inc., Powell upheld a $38 million verdict awarded to a girl who suffered birth defects alleged to have been caused by an antiepileptic drug, despite arguments from the drugmaker that the case was tried in the wrong venue.
The September 2017 case technically was unanimous, but Judge Paul C. Wilson, joined by Judge Laura Denvir Stith and Fischer, wrote separately to say the majority opinion’s analysis “falls short” by failing to sort out the proper procedure under Missouri’s venue laws.
Powell also wrote the 5-2 majority opinion in Wieland v. Owner-Operator Services Inc. in February, which affirmed a $3.25 million verdict for a woman who was shot at work by her ex-boyfriend. The ruling helped prompt lawmakers to pass a law this year clarifying that businesses generally don’t have a duty to protect people on their premises from criminal acts committed by third parties.
Yet Powell has also been critical of some tort cases. One of the three dissents he’s authored is his separate opinion in May in Spence v. BNSF Railway Company, objecting to a ruling that upheld a $19 million award for the widow of a motorist killed in a train collision.
The Spence ruling in is a good example of how disagreements within the Supreme Court are often less a matter of ideology than of what the judges are willing to let slide.
A major issue in the case was whether the railway deserved a new trial because one of the jurors failed to disclose that her son had died in a car accident, prompting her to file a wrongful-death claim. The majority said BNSF should have caught the omission during a routine Case.net search before trial.
But Powell’s dissent said the majority had gone beyond the text of the court rule requiring such searches.
“This reflects a policy preference rather than principles of interpretation,” Powell, joined by Stith, wrote.
At other times, Powell has been willing to take cases on the merits that others on the court rejected.
In May, he wrote the majority opinion in a tax dispute between the city of Lee’s Summit and Cass County. Although the case shouldn’t have been appealed directly to the Supreme Court, Powell’s majority agreed to hear it as a discretionary transfer.
But Mary R. Russell, Fischer and Wilson — the three judges with whom Powell agrees the most — argued in a dissent that the Supreme Court didn’t have jurisdiction over the case and shouldn’t have heard it at all.