Judge recuses himself from rival's cases

Clients of lawyer John Heisserer won't have their cases heard by Circuit Judge Ben Lewis, who defeated Heisserer in a closely fought judicial contest.

The race, the closest partisan contest on the local ballot, featured numerous lawyers helping Heisserer, a Democrat, as he raised almost $70,000 in his bid to unseat Lewis, a Republican who took no money from area lawyers but accepted campaign help from Cape Girardeau County Prosecuting Attorney Morley Swingle. Lewis raised about $32,000 for the campaign to keep his job, which he won from Heisserer in 2004.

While neither candidate used their party affiliation in their advertising, Lewis used his ads to raise questions about the ethics of taking donations from lawyers and tout his credentials as an opponent of flag burning, gay marriage and abortion. Heisserer, who holds similar views, replied by questioning why Lewis would raise those issues, since no cases involving those issues had ever been brought before him.

The decision to recuse himself from cases involving Heisserer, announced during an interview last week with the Southeast Missourian, will also extend to lawyers who publicly supported the Democrat, Lewis said. He wasn't sure how long he would maintain the stance.

"While I am not going to be prejudiced in anybody's case, I think it is a good idea for at least some period of time after the election to disqualify myself on those cases," Lewis said. "While I am not going to do anything to harm those clients, the clients might perceive it that way."

Heisserer, for his part, said he's not worried that Lewis will rule adversely because of any lasting bitterness and won't ask him to step aside in any case.

"I have no reason to believe he won't be appropriate and treat people fairly," he said. "I intend to practice law in front of him."

While the local contest was hard-fought, it remained a local race determined mainly by local donations to the two candidates. In Jefferson City, however, an outside group poured $175,000 into an intense media and direct mail campaign that defeated 12-year incumbent Judge Thomas J. Brown III. A Chicago-based group called Americans for Limited Government was the only contributor to a campaign committee that attacked Brown for seeking public reimbursement for a Christmas party he threw for courthouse employees and for decisions that the group claimed raised taxes, set utility rates and allowed utilities to be shut off to senior citizens in the winter.

Americans for Limited Government was also the group behind failed initiative campaigns to set stricter limits on state spending and use of eminent domain. Both petitions were rejected for problems after they were submitted, and court challenges in Cole County upheld Secretary of State Robin Carnahan's decision, as did the court of appeals.

"This is chump change for people with this kind of money," Senior Judge Byron Kinder told the Jefferson City News Tribune during the campaign. "They can spend $175,000 -- if they beat him, they'll be able to brutalize and intimidate anybody who rises up against them, and those of timid heart will fade and go with them rather than be fair and judicious."

The nonpartisan system

The Missouri Constitution provides a method for avoiding the kind of aggressive party-based campaigns seen here and in the Cole County circuit. Judges of the Supreme Court, the courts of appeals and in five local circuits are nonpartisan appointees who, when they face voters, are accepted or rejected on a yes-no vote.

The nonpartisan system should be extended statewide, Heisserer said. "It has been a model not just for this state but the nation," he said. "I don't have a dog in this fight, but it would remove politics from these races."

Expanding the system statewide would require either legislative action or an initiative petition to amend the constitution. But the nonpartisan plan could be adopted locally through an initiative petition process as well.

For local circuits, judicial candidates are nominated by a panel that includes the chief judge of that circuit's court of appeals, two lawyers and two citizens. Three lawyers are nominated and the governor chooses the judge.

"It would be knowledgeable people inside and outside the profession," Heisserer said. "They would know the qualities to look for in a judge, such as their law school record and their performance in jury trials. It would not be based on their stand on abortion, how many guns they own or their position on gay marriage."

Neither the Missouri Bar, the statewide association of lawyers, Missouri Supreme Court Chief Justice Michael Wolff or Lewis are ready to endorse a complete switch to nonpartisan courts.

"The bar's position is that it is completely up to the people in those jurisdictions," said Gary Toohey, spokesman for the Missouri Bar. "There are other counties that are seen as being ripe for that sort of thing."

The issue should be a local decision, Wolff said. In many rural circuits, the candidates for judge are well-known in their community and campaigning is personal.

One standard for considering a change, he said, would be when the contests for a judicial post cost $100,000 or more, as it did in the Lewis-Heisserer race. "When you have to run a campaign with media to introduce the voters to who the candidates are, that is where the nonpartisan court plan does make some sense."

Adopting a nonpartisan system would replace public political campaigns with insider politics, Lewis said. "It is no less political if it is an appointment," he said.

rkeller@semissourian.com

335-6611, extension 126