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2015 Outstanding Alum: Laura Denvir Stith ’71

April 17, 2015

150416_JudgeStith_41373.jpgDuring assembly on Friday, April 17, Missouri Supreme Court Judge Laura Denvir Stith '71 received the 2015 Outstanding Alum Award. Her prepared remarks to students follow:

I want to thank Head of School Andy Abbott, Board of Trustees President Steve Maritz, the Alumni Board selection committee, and my classmate Jim (JR) Hullverson for his kind introduction of me today. I know there are many in the Burroughs community equally deserving of this honor, and I am humbled by my selection — and a bit daunted at following such prior recipients as Jon Hamm (’89), Keith Shahan (’62), and my own mother, Ann Carter Stith, class of 1938, who received this award in 1980.

When I graduated in 1971, the student body was smaller — we had just over 80 students in our class. The campus was a lot smaller too — the school had just built what was then the “new” library, and we spent our first day of 7th grade moving books from the old library. Now you have so many new gyms, athletic fields, classrooms, and art facilities — as well as this wonderful new auditorium. Bigger does not always mean better, but in Burroughs’ case, I think both are true.

One thing that I bet has not changed, though, is the incredible loyalty that Burroughs graduates feel to the school. That love for Burroughs is reflected in wonderful gifts to the school, such as the Kerry S. Kuehner Gallery funded by my classmate, Kim Kuehner, in honor of his late sister, and those many gifts of the Schnuck family, which includes my classmate, Terry Schnuck.

Love of Burroughs also is reflected in classmates like Jim Hullverson and Ann Lemp, who are here today, and many others, who have served on Burroughs boards and involved themselves in so many aspects of the Burroughs community. I met Ann on the first day of 7th grade, as we both stood looking lost in the front hallway of the main building and recognized in each other a kindred spirit. She’s been my best friend ever since. I would bet that 35 years from now, when you look back at your time at Burroughs, you will count some of your classmates among your closest friends too. The good friends you make here stay close and important to you for the rest of your life, and the other members of your class — even those you did not know well during high school itself — become like extended family as you all get together at reunions, share family stories, and often send your own children here.

Slide01.jpgBecause Burroughs truly is special. People often ask me how I came to be a Supreme Court judge — on the screen you will see a slide showing the Supreme Court building where I work in Jefferson City. I tell those who ask that what I learned going to college at Tufts University and then to law school at Georgetown has served me well throughout my career. But, I always say, I don’t think I would be where I am today had I not gone to Burroughs. 

I was pretty quiet and shy when I arrived here, without a lot of self-confidence. But that all changed in the classroom. My teachers, especially in English, social studies and history, made my classes come alive to me, taught us to really think and analyze. I never hesitated to talk in those classes, for they made me feel smart, like I could take on the world. Indeed, I became editor in chief of The World student newspaper! These inspiring teachers helped me believe in myself, and that is the foundation for everything I have done since.

I had other inspirations of course — and some of them, too, are connected to Burroughs. My parents had four daughters and a son. And yes, all of us kids, like my mom, went to Burroughs. My mom really became our first role model of what a woman could do. She and my dad raised each of us to believe we could do anything we set our minds to.

As you might imagine, raising five children to believe they can do anything led to some not insignificant conflicts within the family. Through these “debates” we all learned how to defend our viewpoints strongly, but just as importantly, I learned how to find common ground and reach consensus — something that has come in very handy in my profession! 

My siblings and I also took to heart our parents’ sage advice that it was our obligation to use our abilities and skills not just to fulfill personal ambitions but also to help the society that had been so good to our family. Neither of my parents were lawyers, as I and three of my four siblings would become, but they were very active in civic affairs. We always discussed national and local events at dinner, and my parents truly believed that what we thought on those issues really mattered.

And so we believed what we thought and did would matter as we entered the outside world as adults as well. I gave my time to various causes I believed in, and proudly cast my very first vote at age 19 for my dad as an alderman of Clayton, and he went on to become mayor.

He and my mother continued to be active in civic affairs. In fact, at the age of 82, my mom was picked to be the only non-lawyer to receive what is known as the Missouri Women’s Justice Award for her work in criminal justice reform. As you can see, Burroughs grads like my mom — and like each of you soon will be — never give up trying to make the world a better place! I was so proud of her.

That made it all the more special to me when, almost 10 years to the day from when my mother won that award, the same group honored me by making me their Woman of the Year. As you might imagine, most of my remarks concerned how proud I was to follow in my mom’s footsteps.

And that is what I am doing again today. In 1980, at the age of 60 — a year younger than I am now — my mom also received this wonderful award as Alumna of the Year. I came back to be with her the day she got her award, and I remember the thrust of her remarks still.

My mom told the students about why she worked for criminal justice reform. She said, far more eloquently than I have time to repeat now, that each student should imagine that he or she was a young drug user sent to a prison located many hours away from family and friends, so no one could visit. Imagine being locked up with murderers and rapists. Imagine rough and brutal treatment from guards. Imagine having to drop out of school and not getting a job when you got out because of your criminal record.

Would you be surprised, she asked, that a person in such circumstances usually again turns to crime and again is imprisoned, for they are cut out of normal society? Now imagine how different it would be, she said, if that person instead were just given a short shock time in prison and then returned to their community and the community worked with that person to help them finish school and gain the skills needed to hold down a job. The decision how to treat people in that situation, she said, would be the students’ in the next decades, and she hoped they chose wisely.

And she was prescient. For today, Missouri is among the leaders in alternative treatment courts, where we send nonviolent drug and alcohol offenders, and veterans with mental health problems, so that the judge can basically be the stern parent, helping them get through counseling and treatment, with prison always in the background as the alternative for those who don’t succeed in these courts. And it costs about 1/4 or 1/5 as much as prison, too, saving both lives and money.

We have since lost my dad and mom, as well as my sister Carter (’64), who was a reporter for the Post-Dispatch. But two of my siblings are here with me today. My brother, Richard Stith (’62) just retired as a law professor at Valparaiso Law School in Indiana and is here with his wife, Rosemarie, and my sister Rebecca Stith (’75) is a federal civil rights attorney in Seattle, Washington. She married a Burroughs classmate, Gen Obata, and is here with their daughter, Emma Obata. My sister Kate Stith (Cabranes ’69) is unable to be here because she is teaching two of her classes today at Yale Law School, where she is a professor.

My husband, Don Scott, is here with me today too. He is a lawyer in private practice in Kansas City. He, like me, realizes how important a really great high school education is, so we sent two of our three daughters to the Barstow School, and one to Notre Dame de Sion in Kansas City — or, as I refer to them, at least when their administrators can’t hear me, “two great Burroughs wannabe” schools.

As you can imagine, with my mother’s example, it is not a surprise that four of us ended up as lawyers or that I, eventually, became a judge. That was not a realistic possibility for mom in her day — there were few enough women lawyers, much less judges. Missouri did not get its first woman lawyer until 1870 — and it was just the second state to allow women to become lawyers. Not until 1927 did a woman named Mary Tiera Farrow became the first woman municipal judge in Missouri — and it was so unusual that when she published her autobiography in 1953 – the year I was born – she titled it Lawyer in Petticoats.

But, thanks to the efforts of the women who came before me, gender has not been such a barrier in my career. By the early 1990s women were graduating from law school in equal numbers as men. They were still only 10% of the judiciary when I became a Missouri Court of Appeals judge in 1994. But, since then, things have changed rapidly.

Slide02.jpgTwenty-five percent of Missouri’s judges are now women and on the Missouri Supreme Court three out of the seven of us are women. Here is a slide (at right) showing the current members of the Missouri Supreme Court.

Perhaps that’s why my daughter, Becca, came to me one day when she was still in grade school and said, “Mommy, you’re a lawyer and a judge, right?”  I said yes, that was right, and then she asked, “Can only girl lawyers be judges, or can boy lawyers be judges too?” I knew things were changing.

So, what does it mean to be a judge, and why does it matter how we choose judges? Well, one reason you might not know the answer to that question is that today a social studies class will spend a week teaching the constitution, but may not even spend a day on the judicial branch. Perhaps that is why, when asked to name the three branches of government, more than half of Americans answered “democrat, republican and independent.”  In case you don’t know, the correct answer is the executive, legislative and judicial branches.

Why does all this matter?  Because our founders established a country based on a system of laws to protect the life, liberty and property of its citizens. This system of laws strives to ensure laws are enacted and applied openly, fairly and consistently. Everyone — even the government and its officials — especially them — should honor and be held accountable under the law. This is called the “rule of law.” 

Now, in the United States, we tend to take the rule of law for granted — even if we don’t like a law we obey it,  usually anyway —  until it is changed, and accept that it is proper for us to be held accountable if we break the law, whether by speeding or by stealing or by fraud. And we trust the courts to settle business disputes.

Slide03.jpgSlide04.jpgSlide05.jpgBut this is not the case in many other countries. What happens when you don’t have a rule of law and a stable court system to enforce it?  Well, as these slides (3 and 4) show, in Egypt in 2012 and 2013 you got protests on the street because the Egyptian Supreme Court was beholden to the Egyptian president at the time, Hosni Mubarak, and no one believed it would decide impartially. As the next slide shows (slide 5), in Pakistan in 2014 you got lawyers marching in the streets because they wanted independent courts.

By contrast, in the U.S. in 2000, the outcome of the presidential election between George W. Bush and Al Gore depended on whether certain ballots in Florida could be counted or not. We all turned to the courts to resolve that issue, and when the U.S. Supreme Court said Bush won, everyone accepted it and moved on — perhaps unhappily for some, but few called for rejecting the Court’s ruling or challenged its legitimacy.

In fact, during the American Revolution, when our founding fathers wrote the Declaration of Independence, many of their grievances with King George III focused on the lack of the rule of law. They said the king deprived them “in many cases, of the benefits of trial by jury … obstructed the administration of justice, … made the judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”

To avoid this, our founders determined to create a republic with checks and balances to ensure that the most fundamental principle of our nation — the rule of law — would be protected for the generations to follow.

As James Madison explained: “If men were angels, no government would be necessary.” But we men and women are not angels, so the founding fathers made sure that the Constitution would protect the citizens so that those in positions of power would not lose sight of — or even disregard — the law. And, if they did, the judicial branch, as a non-political branch, beholden neither to the legislature nor the executive, would right the balance.

But, we should not become complacent about being governed by the rule of law. Read the news and you will quickly see people who decry the courts because they are unhappy with a particular judicial decision. And when they do so because a decision was badly reasoned, more power to them. But more often the critique does not even mention the rationale of the court — just the result.

For instance, to name a current controversy, some people may say “the Supreme Court should have decided that the Affordable Care Act was unconstitutional because we do not want federal health care laws.” 

Well, I’m sure we have a variety of views here on whether the Affordable Care Act is good or bad policy, but that is not what the U.S. Supreme Court was called on to decide. That is for the legislature. The Court simply looked at what the legislature passed and applied it to determine whether it was constitutional.

If judges first decide the result they want, and then just make up reasons to decide the case that way, then they would not be doing their job as judges. The law would not be consistent and public and stable. It would vary depending on who was in office or who became a judge. We might have the very tyranny of the majority that this country’s founders sought to avoid. We would never have had decisions like Brown v. Board of Education, giving all people of whatever race or ethnicity the right to a free and equal and desegregated public education, or Gideon v. Wainwright, guaranteeing a lawyer to those criminal defendants who can’t afford one.

Now politics still enters into judicial selection at the federal level, and in some states, and in rural areas of Missouri, but only through the means set in the federal and state constitutions.

We are lucky in Missouri to have something called the non-partisan court plan in urban areas and for the appellate court and Supreme Court. This next slide (6) shows a plaque honoring it.

Other states call it the “Missouri plan” because Missouri was the first one to adopt it, in 1940. There was a lot of corruption in state government in Missouri at that time, and the people began to question the wisdom of electing judges, as was the practice then. Why should it matter what party a judge belongs to and why would we want judges who were beholden to the people and companies that contributed to their election campaigns?

The people of Missouri decided they did not want that, so they began to select judges based on their legal ability rather than politics. A non-partisan commission of three lawyers and three lay people, headed by the Chief Justice, reviews the applications of those who want to be appellate judges, interviews them, and selects three finalists. The governor then gets to select one of those three – it really does not matter which of the three is selected, for we know that all three are qualified by their legal skills.

And that is how I became a judge of first the court of appeals and, for the last 14 years, of the Missouri Supreme Court. Without raising a dime, just based on my legal reasoning and the analytic skills I first learned here at Burroughs all those years ago.

So, if we still have time, would you all like to try to decide a case as if you were the judge?

Of course, when I sit as a judge I put on a robe. I brought one here and I’ll put it on. Now I don’t have a robe for each of you but this next slide contains a copy of the judge’s oath. I’d like each of you to raise your right hand and state the judge’s oath of office with me:

I do solemnly swear that I will support the Constitution of the United States and the Constitution of Missouri, and that I will faithfully demean myself in the office of Judge of the Court, so help me God.

Here is the issue you have to decide:

Do public school teachers in Missouri have the right to collectively bargain? 

Collective bargaining is when a group of employees act together to negotiate their wages and other conditions of employment. Now I am not asking whether you think that public employees SHOULD have that right — I’m sure we could have a healthy debate on that issue. But, let’s put what I’ve told you today into practice.

As judges, we can’t decide the case based on what we think would be a good law, or a bad law. We have to look at what the Missouri constitution says. The key Missouri constitutional provision says as follows in a portion of the constitution guaranteeing Missouri citizens certain rights:

 § 29. Organized labor and collective bargaining

That employees shall have the right to organize and to bargain collectively through representatives of their own choosing.

So, YOU BE THE JUDGE. How many of you think that this provision of Missouri’s constitution applies only to employees of private companies and allows them to form unions or collectively bargain, but does not apply to public employees? 

How many think it applies to all employees, whether they work for public or private sector employers?

Well, this was an actual case before the Missouri Supreme Court, and a majority of the Court held that the Missouri constitution’s grant of collective bargaining rights to "employees" plainly means employees. There is no adjective or other words limiting "employees" to those in the private sector.

But, two judges dissented, meaning they did not agree with the majority’s opinion. They observed that this provision was adopted in the Missouri constitutional convention of 1945. Just two years later, the Missouri Supreme Court said that even though the provision did not say “private” employees, everyone knew that is what it meant and that is why the people voted for it. So, the Court held that public employees had no right to collectively bargain. And they did not have that right for the next 60 years, until in a case in 2005 some public school teachers asked the Court to look at the issue again.

In deciding the case, the Court had to balance two competing principles that would lead it to different results. As the dissenting judges noted, what we call “precedent” is important to the law. Courts don’t redecide cases from scratch each time. We look to prior cases as precedent and try to follow them. That way the law is stable and predictable and can be relied on. So maybe we should just follow the old decision even if it was wrong.

But, the majority said, we are here dealing with a provision of the Missouri constitution, adopted by a vote of the people. Where the language of the constitution is clear, then we must follow the constitution, not the prior case, for the constitution is the supreme law. If we add the word “private” before employees in interpreting the constitutional right, we are acting as a legislature. We have no right as judges to substitute our view of the law for that of the voter. So we held that the constitution means what it says – all Missouri employees have the right to collectively bargain.

I hope you have a better feel now of what being a judge means. Being a judge often is not an easy job. It can be a heavy responsibility. But I feel incredibly lucky and honored to have that responsibility. I never would have even considered taking on the role of judge had I not been taught here at Burroughs so long ago that the only limit on my future was my imagination. The same is true for each of you.

Thank you.