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George W. Draper III’s speech highlights long-standing court plan critique

Scott Lauck and Jessica Shumaker//September 30, 2019//

George W. Draper III’s speech highlights long-standing court plan critique

Scott Lauck and Jessica Shumaker//September 30, 2019//

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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.

George W. Draper III
Missouri Supreme Court George W. Draper III speaks to the Missouri Bar annual meeting on Thursday, Sept. 19, 2019, in Branson. Photo by Jessica Shumaker

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.”

Nonpartisan Court Plan

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. WaltnerJackson 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. HutchersonClay 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. HoodSt. 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. DraperSt. 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 LoftinSt. 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. SmithSt. 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 PeeblesSt. 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.

Photos: 2019 Missouri Bar annual meeting

2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Suzanne Barth, of Jefferson City, cuddles Clark, a puppy named for attorney Marcia Clark, at the 2019 Missouri Bar annual meeting in Branson. She initially said she was 75 percent interested in adopting the puppy. “I’m probably up to 80 percent by now,” she added. Photo by Jessica Shumaker.

Suzanne Barth
George W. Draper III
George W. Draper III

Missouri Supreme Court George W. Draper III speaks to the Missouri Bar annual meeting on Thursday, Sept. 19, 2019, in Branson. Photo by Jessica Shumaker

George W. Draper III
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Outgoing Missouri Bar President Ray Williams, left, listens at the 2019 Missouri Bar annual meeting in Branson as incoming president Tom Bender, right, recognizes his service to the bar association during his term while also working as a solo practitioner in West Plains. Photo by Jessica Shumaker.

Ray Williams, Tom Bender
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Retired Judge James Dowd, left, speaks with John Grimm, the newly elected vice president of The Missouri Bar, before the opening luncheon at the 2019 Missouri Bar annual meeting in Branson. Photo by Jessica Shumaker

James Dowd and John Grimm
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Ray Williams, past president of the Missouri Bar, left, watches as Missouri Supreme Court George W. Draper III speaks to the Missouri Bar annual meeting on Thursday, Sept. 19, 2019, in Branson. Photo by Jessica Shumaker

Ray Williams and George W. Draper III
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Lorne Baker, associate circuit judge in St. Louis County, holds Cochran, a puppy named for Johnnie Cochran, at the 2019 Missouri Bar annual meeting in Branson. The bar arranged for Shepherd of the Hills Humane Society to bring the adoptable puppies to the event to help lawyers reduce stress. Photo by Jessica Shumaker.

Lorne Baker
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Belinda Kaderly, left, of Lamar, chats with Angela Vorhees, a family court commissioner for the 29th Judicial Circuit in Carthage, at the 2019 Missouri Bar annual meeting in Branson. Photo by Jessica Shumaker

Belinda Kaderly and Angela Vorhees
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Jackson County Circuit Judge Jalilah Otto speaks on a CLE panel at the 2019 Missouri Bar annual meeting in Branson about the intersection of lawyers’ First Amendment rights and social media. Photo by Jessica Shumaker

Jalilah Otto
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Jeffrey B. Jensen, U.S. Attorney for the Eastern District of Missouri, speaks on a panel about federal health care enforcement priorities at the 2019 Missouri Bar annual meeting in Branson. Photo by Jessica Shumaker

Jeffrey B. Jensen
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Retired Judge Deborah Daniels moderates a panel discussion at the 2019 Missouri Bar annual meeting in Branson on attorneys’ First Amendment rights and social media. Sara Rittman of the Missouri Attorney General’s Office is shown at right. Photo by Jessica Shumaker

Deborah Daniels
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Matthew Schelp, left, an attorney with Husch Blackwell in St. Louis, speaks on a panel at the 2019 Missouri Bar annual meeting in Branson with Jeffrey B. Jensen, center, U.S. Attorney for the Eastern District of Missouri, and Timothy A. Garrison, U.S. Attorney for the Western District of Missouri. The CLE focused on federal health care enforcement priorities.  Photo by Jessica Shumaker

2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting
2019 Missouri Bar annual meeting

Springfield attorney Dwight Rahmeyer, from left, talks with Mike Garrett of Monett, and  Judge Joseph Phillips of Stockton following a plenary session on medical marijuana at the 2019 Missouri Bar annual meeting in Branson. Photo by Jessica Shumaker

2019 Missouri Bar annual meeting

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