Missouri Supreme Court Chief Justice George W. Draper III’s fiery speech at The Missouri Bar Annual Meeting boosted the profile of long-running concerns about bias in the judicial review process.
In his Sept. 19 speech, Draper called out the “unprecedented weaponization” of judicial performance evaluations against minority judges — including his wife, Judy Draper, who was ousted as a judge in St. Louis County following a tepid evaluation in 2018. George Draper is just the second black judge to serve on the Supreme Court, and his wife is of African American and Korean decent.
Under the Nonpartisan Court Plan, appellate judges and trial judges in the St. Louis, Kansas City and Springfield metropolitan areas are appointed by the governor, and voters are asked periodically whether those judges should be retained in office.
Each election, a judicial performance review committee reviews the records of judges appearing on the ballot. The judges’ identifying information is removed during the committee’s review, but the evaluation is based in part on surveys of lawyers who appeared before the judges.
Earlier this year, the Mound City Bar Association, a St. Louis-based organization for African American attorneys, wrote to the Supreme Court arguing that “the attorneys who evaluate the judges are obviously not doing so blindly.”
“Accordingly, when they fill out their evaluations and that data later finds its way to the [judicial performance review], despite the data being stripped of race, gender, court or geographic location, the bias is still embedded in the evaluation results,” the organization wrote, adding that the information from the surveys needs to be examined before it is given to the committee.
Shira Truitt, the current president of Mound City, did not respond to requests for comment. Following Draper’s speech, officials from The Missouri Bar said the process was being reviewed for the 2020 election.
The Missouri Bar has coordinated judicial evaluations in some form since 1948. In its early decades, lawyers simply were asked “yes” or “no” as to whether a judge should be retained. Through the years, the process has come to include more detailed questions and a one-to-five point grading system for judges.
A Mound City-commissioned study in 2007 found “significant differences” in how attorneys rated and recommended judges for retention based on the race and gender of the judge they’d reviewed, with female African American judges receiving the lowest scores.
That study spurred the Missouri Supreme Court in 2008 to establish review committees to conduct judicial performance evaluations. For a time, judges in each circuit were evaluated by separate committees, but currently a single Missouri Judicial Performance Review Committee conducts evaluations throughout the state. The committee, which is funded and publicized by The Missouri Bar, doesn’t explicitly recommend whether voters should retain judges or not. Instead, committee members vote on whether the judge meets judicial standards.
In June, Mound City sent to the Supreme Court a supplemental study by the same author, Gary K. Burger, a retired industrial organizational professor at the University of Missouri-St. Louis. Between 2014 and 2018, he found, evaluations of female African American judges were significantly lower than in the 2007 study. According to the more recent data Burger analyzed, female African American judges received an average score of 3.54 on a five-point scale, while male African American judges received an average score of 4.05. Female Caucasian judges averaged 4.19, and male Caucasian judges averaged 4.08.
“The MCBA believes that despite a 13-year gap between the two studies and despite the overhaul of the judicial review program in Missouri, African American Judges, particularly female African American Judges, are rated significantly lower than all other judges,” the group’s letter said. “Based on the results, and despite the changes that resulted from the Missouri Judicial Performance Review (“JPR”) Committee and the Missouri Supreme Court itself, bias is still at play.”
Since the creation of the Nonpartisan Court Plan in 1940, only four judges have been voted out of office.
From 1992 to 2006, no judges got negative recommendations. But during the past seven elections, several judges have gotten bad marks of one sort or another, yet voters kept them on the job.
Marion D. Waltner, Jackson County, 1942
Waltner, a Jackson County circuit judge based in Independence, was the first — and, for half a century, only — judge ousted under the court plan. Prior to the passage of the court plan, all Missouri judges were elected. Waltner had been on the bench since 1934.
John R. Hutcherson, Clay County, 1992
Hutcherson, a circuit judge, received a 28 percent approval rating on that year’s lawyer survey and narrowly lost the retention vote. Hutcherson had been an associate circuit judge since 1981 and was elevated to the circuit bench in late 1990.
Dale W. Hood, St. Louis County, 2016
Just one of 21 committee members found Hood, an associate circuit judge appointed in 2005, met judicial performance standards. Hood had previously gotten bad marks on bar surveys in 2008 and 2012, but voters kept him on the bench. In both of those years, Hood was the only judge in the state not recommended for retention.
Judy P. Draper, St. Louis County, 2018
Draper, an associate circuit judge appointed in 2004, actually received a passing grade in the judicial review, with 13 of 20 committee members saying she met judicial standards. Draper previously had received low marks in 2006 and 2010 but won retention. In 2014, the evaluation committee for the 21st Circuit initially recommended that Draper and two other judges not be retained. An appellate panel, however, reversed the committee’s recommendations.
Brenda Stith Loftin, St. Louis County, 2006
Loftin won support from 49.7 percent in that year’s survey of lawyers. Nonetheless, she got 61 percent in that year’s retention election. Loftin, who was named as an associate circuit judge in 1995, was recommended for retention in 2010, though she was ranked second-lowest in that year’s survey. She retired in 2013.
Patrick Clifford and Dennis N. Smith, St. Louis County, 2014
The same year it failed to recommend Draper, the 21st Circuit committee also came out against Clifford and Smith, both associate circuit judges. The three judges’ scores were the lowest in St. Louis County Circuit Court and among the lowest in the state. An appellate panel, however, said it wasn’t appropriate for recommendations to be based on whether a particular judge’s evaluation scores were higher or lower than those of other judges. Clifford, who joined the bench in 1979, retired in 2016. Smith was appointed in 1995 and retired in 2017.
Barbara Peebles, St. Louis, 2014 and 2018
In 2012, the Missouri Supreme Court suspended Peebles, an associate circuit judge, for six months for misconduct. In her first evaluation in the wake of that suspension, a committee recommended that Peebles be retained despite a drop in her scores, citing the Supreme Court’s decision not to remove her from office. In 2018, Peebles was the only judge to receive a negative assessment, with 11 of the 19 committee members finding that she didn’t meet judicial standards. Peebles, who was appointed in 2000, remains on the bench.