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Monday, May 03, 2004

20 Questions for Judge Richard B. Teitelman of the Supreme Court of Missouri: "How Appealing" is pleased that Judge Richard B. Teitelman of the Supreme Court of Missouri has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Teitelman was born in Philadelphia, Pennsylvania. He earned his bachelor's degree in mathematics from the University of Pennsylvania in 1969 and his law degree from Washington University in St. Louis in 1973. He worked as a solo practitioner until 1975, when he joined Legal Services of Eastern Missouri -- an organization that seeks to assist individuals who cannot afford to hire lawyers in civil matters -- where he worked for 23 years, including 18 as executive director and general counsel. While at Legal Services, Teitelman received The Missouri Bar President's Award and the American Bar Association's Make a Difference Award.

In 1998, Governor Mel Carnahan appointed Teitelman to the Missouri Court of Appeals, where Judge Teitelman served until February of 2002. In February 2002, Governor Bob Holden appointed Judge Teitelman to the Supreme Court of Missouri. Judge Teitelman is the first legally blind judge to serve on Missouri's highest court, and also the first Jewish judge to serve on that court. In addition to his judicial responsibilities, he currently serves as chair of the American Bar Association's Commission on Mental and Physical Disabilities Law and as an executive member of the American Judicature Society. The Washington University School of Law has awarded to Judge Teitelman the Distinguished Alumni Award, and he currently serves as jurist-in-residence at that law school.

Judge Teitelman's chambers are located in St. Louis, Missouri, and the Supreme Court of Missouri has its headquarters in Jefferson City, Missouri.

Questions appear below in italics, and Judge Teitelman's responses follow in plain text.

1. What caused you, first, to want to become a lawyer and, later, to decide to join the judiciary, and how were you able to overcome the obstacles, if any, that your disability presented on your career path? In particular, the job of an appellate judge is said to involve endless reading. How does someone who is legally blind manage to accomplish that?

I became a lawyer so that I could help poor people with their problems. I became a judge to try be just and fair on the judiciary.

With respect to overcoming obstacles due to being legally blind, I have a compensation -- a very good memory. My law clerks read briefs and other materials to me, and I remember most of what they read to me.

2. As someone who has attained a position of great distinction in the legal profession, and as an advocate for people with disabilities, what changes if any do you believe are necessary in the law, the culture of the legal profession, or society in general to enable more people with disabilities to become, and succeed as, lawyers and judges?

I believe our society is far better off when everyone is given the opportunity to reach their potential regardless of their challenges due to disabilities. For example, except for flying a plane or driving a car, blind people can do almost anything else sighted people can and should not be denied opportunities.

3. Is it your understanding that lawyers with disabilities are more likely to work for the government or non-profit organizations than they are to join a large law firm, and if so why is that the case? Also, what, if anything, can and should be done to make the private practice of law at a large firm a more viable option for people with disabilities?

True, most lawyers with disabilities work for government or non-profit organizations. To address this dilemma we need to do a better job educating private employers on our abilities. Knowledge can overcome prejudice.

4. Some state and federal courts have appointed task forces to investigate the subjects of racial and gender bias within the judicial system. Have any judicial systems, to your knowledge, performed any similar investigations with respect to physical or mental disabilities, and do you think that such a task force would be worthwhile in Missouri?

Yes. Missouri does have a task force created by then Chief Justice Limbaugh. It has already made court documents such as subpoenas and jury summons more accessible to people with disabilities. We have also worked with some courts to make their facilities and services accessible. The work of this task force is ongoing.

5. Is the Missouri state court system able to accommodate jurors who are blind or deaf? And what was your reaction to the story of James Moynihan of Kansas City, Missouri, who showed up for jury duty and was told that he was excused because he was blind? His story has a happy ending, but others in that situation may not have been as knowledgeable of and insistent on exercising their rights.

With respect to accommodating blind and deaf jurors, we must do our best to accommodate the ability of citizens to perform, when possible, their constitutional duties to serve as jurors.

6. Under current federal equal protection jurisprudence, discrimination on the basis of disability is lawful if it satisfies the rational basis test, which is the least stringent standard of scrutiny, while classifications based on race and gender are more likely to be found unlawful because they are evaluated under more stringent standards. The laxity with which disability-based distinctions are evaluated may have been crucial to the U.S. Supreme Court's ruling in Board of Trustees of University of Alabama v. Garrett that the U.S. Congress lacked the power to apply the Americans with Disabilities Act to state employees. Do you find the current difference in strictness of scrutiny applicable to disability, on the one hand, and race and gender, on the other hand, to be sensible, and why or why not?

Since this question may come before me at some point, I must refrain from commenting on it.

7. What are your most favorite and least favorite aspects of serving as a Judge on the Supreme Court of Missouri?

I enjoy the opportunity to serve the Court.

8. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

The Honorable A. Leon Higginbotham, Jr. Judge Higginbotham was a highly respected African-American judge on the United States Court of Appeals for the Third Circuit. He treated everyone with dignity and respect.

9. Missouri is not the only State that uses the title of "Judge," rather than "Justice," for those who serve on the State's highest court. But on the New York Court of Appeals, the presiding jurist is known as "Chief Judge," while on your court, everyone is known as "Judge" except for the "Chief Justice." What is the history of your court's system of titles, and what sense, if any, does it make for a court to consist of six Judges and one Chief Justice?

There is really no significance to whether we are called "judges" or "justices." We are all here to serve the public fairly.

10. Before you joined the Supreme Court of Missouri, one of your current colleagues on that court -- Chief Justice Ronnie L. White -- accepted a nomination from President Bill Clinton to become a U.S. District Judge in Missouri. And another of your current colleagues, Judge Duane Benton, recently accepted President George W. Bush's nomination to serve on the U.S. Court of Appeals for the Eighth Circuit. The U.S. Senate rejected then-Judge White's nomination, and U.S. Senate action on Judge Benton's nomination has been delayed due to partisan squabbling not targeted at him. Why has your court become such a popular source for federal judicial nominees, and do you have any interest in joining the federal bench? Also, perhaps you could explain why someone would agree to leave a judgeship on Missouri's highest court to become a federal trial court judge?

Both Chief Justice White and Judge Benton are bright and well-qualified judges who have served on the Supreme Court of Missouri with distinction and would honor the federal courts with their service. I am also privileged to serve the people of Missouri as a judge on the Supreme Court.

11. Judges are selected to serve on the appellate courts of Missouri through what is known as the "Nonpartisan Selection of Judges Court Plan." A commission nominates three candidates for an appellate court vacancy, and the Governor must then select one of those candidates for the position. After the judge has served in office for one year, he or she is the subject of a retention election. Being retained in office allows the judge to serve a complete twelve-year term, after which the judge must stand for retention again. There is no limit to time in office other than a mandatory retirement age of 70. Although the selection process may be nonpartisan in design, the Supreme Court of Missouri currently consists of four individuals selected by Democratic Governors and three individuals selected by Republican Governors, and the court is often divided 4-3 along party lines in high-profile cases. Is Missouri's approach toward selecting judges better than the federal method or the method whereby appellate judges run for election to attain office? Are you surprised that a nonpartisan system has produced a seemingly partisan division among the judges on the court? And wouldn't it make more sense to hold the initial retention election somewhat later, to give an appellate judge the opportunity to develop an adequate track-record on which to be judged by the voters?

Actually, approximately 98.5% of the decisions of the Supreme Court of Missouri are unanimous. All the judges who sit on our Court are nonpartisan and exercise their independent judgment on cases.

To clarify a point, retention occurs only after a judge has served at least one year on the bench, at the next general election following one year of service. In my case, I was appointed February 27, 2002 and will be on the ballot for retention on November 2, 2004, over two-and-a-half years after appointment.

12. In 1989, the Supreme Court of the United States ruled in Stanford v. Kentucky that the Eighth Amendment's prohibition on cruel and unusual punishment did not prevent those who commit murder at the age of sixteen or seventeen from receiving the death penalty. In recent years, lower courts have refused to depart from that ruling, and the U.S. Supreme Court has turned down several requests from those who committed murder at the age of sixteen or seventeen to reconsider the Stanford decision. Last year, however, the Supreme Court of Missouri, in a 4-3 ruling in which you joined in the majority, held that imposing a sentence of death on someone who committed a murder at the age of 17 constituted cruel and unusual punishment. The U.S. Supreme Court in January 2004 agreed to review your court's ruling in that case, and thus your court has managed to force the U.S. Supreme Court's hand to reconsider the constitutionality of the so-called juvenile death penalty. Was forcing the U.S. Supreme Court to reexamine this issue one of the goals of the majority on your court, why did not your court simply base its outcome on Missouri's state constitution, and why was it appropriate in your view to disregard the directly on point U.S. Supreme Court precedent on this issue?

Since this question may come before me at some point, I must refrain from commenting on it.

13. What role should an appellate judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for an appellate judge to decide how to rule based solely on his or her personal preference? Also, isn't it true that jurists serving on a state court of last resort sometimes have little other than their own personal preference concerning the result to guide them in deciding cases?

We should always be governed by precedent, the constitution and statutes in reaching our decisions.

14. How would you describe your judicial philosophy, and which judicial opinions that you have written stand out as your favorites?

I have no judicial philosophy. My goal is to be fair to all parties that come before me. I have no favorite cases or opinions; all the cases that we hear are important.

15. What qualities do you look for in deciding whom to hire as a law clerk, and what qualities or traits other than a strong academic background are important to you?

I strive to hire the best and brightest law clerks.

16. What are the three most important suggestions you have for attorneys concerning how to improve the quality of their appellate briefs filed with the Supreme Court of Missouri?

My three suggestions on writing briefs for the Supreme Court of Missouri are:
1. Read and understand the Supreme Court rules of appellate practice and procedure;

2. Be clear as to the issues; and

3. Remember these are ?briefs? not ?books.? Be clear and concise.
17. Similarly, what are the three most important suggestions you have for attorneys concerning how they can improve their performance at oral argument?

My three suggestions with respect to oral argument are:
1. Be candid and address the weaknesses in your case as well as the strengths;

2. LISTEN TO THE QUESTIONS from the bench and answer them as directly as you can; and

3. Be clear and concise. If you have made your argument and there are no more questions from the bench, SIT DOWN!
18. How much of your court's caseload consists of cases that the court has discretion whether or not to hear and what percentage are cases in which an appeal exists as of right to your court. With regard to your court?s discretionary jurisdiction, what factors do you weigh in deciding whether a particular case should or should not be granted review? And what procedures does the court follow internally in determining whether to grant discretionary review?

The Supreme Court of Missouri hears direct appeals on tax and capital murder cases. Routinely, we also hear cases where there is a conflict between the appellate courts in the state. The other approximately 85% of the cases are heard constitutionally where there is an issue of "general interest or importance" or where an appellate court finds that the constitutional validity of a statute is at issue. Unlike the Supreme Court of the United States, in which 4 of 9 votes are required to hear a case, in the Supreme Court of Missouri we need a majority of the Court to take transfer.

19. What in your view are currently the most urgent issues facing Missouri's system of justice, and what do you anticipate the most urgent issues will be twenty years from now? What can and should be done to address the issues currently of concern and to anticipate and perhaps avoid the issues you expect to arise in the future?

Every case that comes before the Supreme Court of Missouri is important to all parties and is treated with respect. We do not prioritize cases.

20. What do you do for enjoyment and/or relaxation in your spare time?

I enjoy music and sports.

"20 Questions" for:

Fifth Circuit Judge Jerry E. Smith

Ninth Circuit Judge Diarmuid F. O'Scannlain

Mississippi Supreme Court Justice Kay B. Cobb

Ninth Circuit Judge Andrew J. Kleinfeld

Ninth Circuit Judge Michael Daly Hawkins

Third Circuit Judge Ruggero J. Aldisert

Eleventh Circuit Judge Gerald Bard Tjoflat

Federal Circuit Judge William Curtis Bryson

Eleventh Circuit Judge Stanley F. Birch, Jr.

Eighth Circuit Judge Richard S. Arnold

Seventh Circuit Judge Richard A. Posner

Tenth Circuit Chief Judge Deanell Reece Tacha

Ninth Circuit Judge Stephen Reinhardt

First Circuit Judge Bruce M. Selya

U.S. District Judge Milton I. Shadur
(N.D. Ill.)

Missouri Supreme Court Judge Richard B. Teitelman

California Court of Appeal Justice William W. Bedsworth (4th Dist., Div. 3)

Tenth Circuit Judge Paul J. Kelly, Jr.

Seventh Circuit Judge Frank H. Easterbrook

Wisconsin Chief Justice Shirley S. Abrahamson

Seventh Circuit Judge Diane S. Sykes

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