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Legally Speaking


Issue: June, 2006
Author: Hon. Marilyn S. Kite

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Judicial Selection in Wyoming

For almost thirty-five years, Wyoming has enjoyed the benefits of a merit selection method of selecting judges, known as “the Missouri Plan” after the state which first adopted such a system. As most members of the Wyoming State Bar know, the Constitution establishes a Judicial Nominating Commission which selects three candidates from which the governor must choose for appointment to any judicial vacancy. The Commission is made up of seven members--three resident, actively practicing attorneys elected by the Bar; three electors who do not hold any public or political party office appointed by the governor; and the Chief Justice of the Wyoming Supreme Court who only votes in the event of a tie. Geographical diversity is assured by the requirement that no more than two members can be from the same judicial district and when a vacancy is located in a district or a county which is not represented on the Commission, two non-voting advisors are appointed, one by the governor and one by the Bar, to participate in the deliberations.

I am a firm believer in the wisdom of our system of judicial selection. However, I am concerned about its vitality, its reputation and its future. Recently, a poll was conducted to which 439 current members of the Bar responded and the results disclose several concerns. First, 51.7% of those responding indicated they were only “somewhat familiar” or “not at all familiar” with the judicial selection process in this state. That is a distressing number especially considering the substantial role the Wyoming State Bar plays in the process. While some non-lawyers have criticized the system claiming it is controlled by lawyers, I believe inclusion of the legal profession in process of judicial selection was a wise choice by those who designed our system. Who better knows the characteristics of a good judge and has a substantial stake in judicial decisions than those who deal with judges on a daily basis? We can easily imagine the problems inherent in a judicial selection process in which no such input is available.

And yet too many members of our Bar know little about the system and few have chosen to participate in it. The results of the poll indicated that 75.3% of the respondents had never considered running for a seat on the Judicial Nominating Commission. Over the years, many of the elections for the Bar representative have involved only one candidate. That was the case in 1996 when I submitted my name as a candidate. While I may have been happy with those odds at that time, I now see the lack of participation as a symptom of apathy with regard to our judicial selection process--a condition that our society can ill-afford, especially in today’s climate of attacks upon the judiciary in general.

Our stake in the process as members of the Bar is two-fold. First, we are directly affected by the quality of the judiciary in the performance of our profession. But, also, we are each individually possible candidates for judicial positions. The poll results reflected 58.1% of the respondents had considered applying for a judgeship. However, it also shows that 41.9% never had, and I would have been included in that number for most of my legal career. In fact, I was somewhat surprised when I developed that interest later in my legal career. I believe it was my service on the Judicial Nominating Commission that stimulated that interest. For the first time, I began to analyze the process of judging in our society and struggled to determine whether applicants possessed the necessary qualities to make a good judge. I became a believer in the system as I watched my fellow Commission members do the same, without any political influence on their efforts. I have heard the same comments many of you have heard that the process is “too political” or that to be successful you have to know the governor. I may be wrong, but I would bet that you do not hear those comments from those who have served on the Commission and participated directly in the process. Instead you will hear the opposite--that unless the applicant discusses it, the Commission does not know his or her political affiliation. The process is open to input from anyone who wishes to provide it. Commission members hear from the applicant’s references and do their own research by contacting members of the applicant’s community that may have information on their qualifications. The governor plays no role until the Commission completes its work.

If you ever intend to apply for a judgeship, you have an extra reason to understand, support and participate in the process. Interestingly, 60.9% of those of those who have considered applying, would do so again in the future. That is a pretty good endorsement of the system of selection. While other considerations play a role in one’s decision whether to consider judicial service, (judicial salaries – 57.3%, and judicial retirement – 50.3%), certainly a system of selection that is fair, based upon quality and not politics, and assures input from the legal profession, would be paramount. So you do have a stake in the system.

This year there is a vacancy on the Judicial Nominating Commission; this vacancy must be filled by a member of the Wyoming State Bar. I encourage you to consider it carefully. Are you a possible candidate? Do you know someone who is? If so, encourage that person to apply. Talk to current and former members about their experience. When a judgeship becomes vacant, get involved in the process to fill that vacancy by encouraging good candidates and providing helpful input to Commission members. Equally important, talk to your non-lawyer friends and associates and educate them on the system of selection and of their right to provide input. Wyoming and other states with a merit selection system of judicial selection are the envy of the rest of the nation. If we expect to enjoy the benefits of our system into the future, we must understand it, keep it vital, and defend it.

Marilyn S. Kite received her B.A. from the University of Wyoming in 1970 with Honors and her J.D. from the University of Wyoming Law School in 1974. Prior to her appointment to the Wyoming Supreme Court (2000), Justice Kite served as Senior Assistant Attorney General for the State of Wyoming from 1974 through 1978. She entered private practice when she joined the law firm of Holland & Hart in 1979, and she was a partner in the Jackson office until her appointment to the Wyoming Supreme Court.

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