Melissa Howard is living the dream. She sued politicians for being politicians — and won.
A Platte County jury recently awarded $2.1 million to Howard, a 46-year-old assistant prosecutor in Clay and Jackson counties. Howard had gone to court with a claim of racial discrimination. In 2006, the Kansas City, Missouri, City Council voted to reject Howard and two other women for a position as a municipal court judge.
There's no doubt that race shaped the council's decision. Howard and the other two finalists are white. Former mayor Kay Barnes and others on the council made it clear that they wanted a person of color to fill the vacancy on the municipal court.
So the council cast the equivalent of a pocket veto and left the position empty until a more politically suitable cast of candidates arrived.
It's a fascinating case in which the facts aren't really in dispute. Video cameras rolled at a council meeting where Barnes described the racial makeup of the 13 applicants for the judgeship and said she was "dissatisfied" that the finalists did not include a minority. The discrimination was blatant.
But was it illegal? Can a city be found at fault when its elected officials act like elected officials?
The jury said yes, to the tune of a couple million bucks.
"I was left really with no choice but to do something, the way they handled it," Howard says of the former mayor and the council. Howard tells me their treatment of her was "egregious." She adds, "They think they can do whatever they want to do, no matter what the law is."
An experienced prosecutor who has worked in municipal and circuit courts in Missouri and Kansas, Howard filled out a 10-page application to take the place of Judge Marcia Walsh, who retired on September 21, 2006.
The city follows the state's model for choosing judges. Applications for Walsh's seat went before what's called a judicial nominating commission. The city's nominating commission consists of a judge, two lawyers named by the Missouri Bar and two laypeople appointed by the mayor.
On October 30, 2006, the commission came up with their list of possible replacements for Walsh. The criticism was immediate.
Urban League President Gwen Grant said at least one African-American deserved to make the finals. The nominating commission's lone nonwhite member, the Rev. Wallace Hartsfield, also complained about the lack of racial diversity. Barnes issued a press release expressing her disappointment that the candidates did not include a minority woman, which the court lacked at the time. The council argued about what to do with the all-white list of candidates at a meeting on November 9, 2006. The discussion was frank, for the most part. "It has nothing to do with race for me," Councilman Terry Riley said at the outset, only to later warn colleagues who were inclined to accept the panel. "Remember that there's elections coming up," he said. "If you haven't done the right thing now, don't try to come out there and say that you're about diversity and equity in the community and you haven't showed it in this body."
Riley also spoke of one of the three finalists having "ethical challenges," an apparent reference to Howard's past. In 1989, a former boyfriend complained that Howard threatened him and destroyed his belongings. The boyfriend sought a protection order, which a Clay County judge denied for lack of sufficient evidence.
Howard says today that the boyfriend's allegations were baseless. "I was never charged with anything," she says. "I worked for Kansas City afterwards as a prosecutor for years."
Whether motivated by fear of reprisal or a genuine desire for ethnic diversity, the council, in a 7-6 vote, decided to not accept the panel of three white women. Chuck Eddy and Jim Glover joined Barnes and the council's four African-American members in sending the matter back to the nominating commission.
City Attorney Galen Beaufort assured the council that it was acting legally. The president of the Kansas City Metropolitan Bar Association, Patrick McLarney, wasn't so sure, however. A month after the vote, McLarney wrote an e-mail to Beaufort suggesting that the council had erred in asking for a new panel. "No one is against diversity," McLarney wrote, "but we all have to follow the law."
Ultimately, the nominating commission submitted a new panel that replaced Howard and another candidate with Ardie Bland, an African-American, and Eddie Medina Lorenzo, who is of Filipino descent. Earlier this year, the new council finally awarded the job to Katherine Emke, one of the original white finalists.
Howard, meanwhile, sought satisfaction in the civil court.
At trial, the city argued that the Missouri Human Rights Act did not apply to the appointment of judges, who stand for election after they're installed.
But Howard says the city is just like any other employer. "Think about it this way, and I think it becomes more clear instantly," she tells me. "What if they had said, 'We're not going to hire women for this,' or 'We're not going to hire an African-American'? That could easily be the scenario."
No, it couldn't, which is why Howard's case looks kind of silly. Her complaint essentially asked the jury to punish elected officials for being sensitive to racial politics, which seems unfair.
Let's be clear: Picking judges is a political process. The 13 applications for Walsh's position did not come out of a computer programmed to determine the wisest and fairest members of the bar. As with any subjective ritual, relationships and connections matter.
Howard understands the game. Her husband, Victor, is an appeals-court judge appointed to the bench by former governor Mel Carnahan. She has donated to the campaigns of Claire McCaskill and John Kerry. In charity golf events, she has teamed up with Molly Korth Williams, the sister of Christopher Korth, a lawyer on the nominating commission that sent her name to the City Council.
Those who seek office do so with the understanding that it's not a meritocracy. (Because, boy, if it were, most of them would be doing something else.) By filing suit, Howard sought to inject objectivity into a process that's not all that different from a vote for homecoming queen.
It's hard for Howard not to sound obtuse when she's making her case. What happened in the City Council a year and a half ago, she says, was not a political discussion but an illegal discussion.
"We never really got to the political part," she tells me. "You know, political would have something to do with politics. This just had to do with race. Race isn't supposed to be what politicians are all about.... When you're trying to disenfranchise people, that's illegal — that's not political."
Technically, Howard might be a victim.
But is it OK to call her a bad sport, too?
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