Kansas City wants $2.1 million award for judge applicant tossed out

Thursday, September 16, 2010 | 5:44 p.m. CDT

JEFFERSON CITY — An attorney for Kansas City urged the Missouri Supreme Court on Thursday to toss out the $2.1 million discrimination award for a municipal judge applicant who says she was passed over because she's white.

Saskia Jacobse, an assistant city attorney for Kansas City, argued before the state high court that a law barring employment discrimination does not apply because Melissa Howard was trying to become a public official and not applying to work as a city employee.

Missouri's anti-discrimination laws bar employers from refusing to hire people because of race or skin color and prohibit classification of employees based on factors such as race that limit their ability to be hired.

Howard applied in 2006 to be a Kansas City municipal judge and was one of three finalists — all white women — that were rejected several times.

To pick municipal judges in Kansas City, a nominating committee selects three finalists that are forwarded to the mayor and City Council members who then select one. Voters decide whether to retain municipal judges after their terms expire. The system is similar to one used for state trial judges in urban areas and all state appeals court judges, including the state Supreme Court.

When Howard applied, Kansas City officials expressed concern about the lack of diversity among the three finalists and rejected the entire panel.

Howard, an assistant prosecutor in Clay County, sued in 2007 and was awarded money to compensate her and punitive damages. That award was tossed out in February by a three-judge panel of a state appeals court because it concluded that under the state discrimination law, Howard was not an employee.

Edward "Chip" Robertson Jr., a former state Supreme Court judge who represented Howard, said Kansas City municipal judges are city employees. In his written argument, Robertson noted that municipal judges complete employee forms and have personnel files. He said Kansas City also treats judges as employees for federal and state tax purposes.

Robertson said Howard was seeking to become a Kansas City employee but had no chance because officials decided to reject her and the others based on their concern about diversity.

"They rejected the whole panel and they do it person after person on the basis of race," Robertson said Thursday.

Jacobse said municipal judges in Kansas City do not qualify as employees because they are not under the direction of other city workers or employees, can only be terminated through a specific process and are supposed to remain independent.

"Municipal judges are public officials, and not employees of the city," Jacobse wrote in her written argument. "Therefore, the city was not depriving Howard of an employment opportunity."

Jacobse said Howard was more akin to an independent contractor than a city employee.

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