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Brett Emison
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Missouri Senate Votes To Destroy Non-Partisan Court Plan

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Missouri Senate Votes To Destroy Missouri Non-Partisan Court PlanThe Missouri Senate voted last Thursday to destroy the Missouri Non-Partisan Court Plan, injecting politics into a legal system that should be determined on merit, facts, and law.

The Missouri Plan – a plan in which judges are selected for service based on non-partisan merit selection – was enacted after Missouri citizens voted to amend the constitution in the 1940s. The Missouri Plan is one for the people and by the people. The Missouri Non-Partisan Court Plan was adopted because citizens were fed up with political cronyism and politics in the courthouse. Namely, notorious "Boss Tom" Pendergast, who ran the Democratic Party in Missouri during the 1920s and 1930s, also controlled the judiciary.

Rush Limbaugh's grandfather — "the original" Rush Limbaugh — successfully led the citizen's initiative petition drive to end partisan control of the judiciary in favor of merit selection of judges. Under the Missouri Plan, appellate judges and trial judges in metropolitan counties electing to participate in the Missouri Plan, judges are selected by a commission consisting of 3 attorneys elected by members of the Missouri Bar Association; 3 citizen members appointed by the governor (serving 6-year staggered terms); and a currently sitting judge. The panel selects from those submitting applications themselves or nominated by others for the vacant position. The process has worked essentially the same way for more than 50 years and led the country as more than 30 other states have adopted the Missouri Non-Partisan Court Plan in one form or another.

On Friday, the Missouri Senate voted to pass SJR 51 and to end the independence of judicial selection and put control of judges squarely in the hands of the governor. The Senate resolution eliminates the judicial voting commissioner and adds a citizen member appointed by the governor. SJR 51 also staggers the governor-appointed majority so that a sitting governor will fully control the judicial commission only 24-months into his or her term. This plan effectively eliminates the independence of the commission and fully injects politics into Missouri courtrooms.

From the start of the debate, it was clear there were rifts – even among senators of the same party – as to whether the proposal was a good idea. Several senators raised concerns that [the] proposal allows a governor to appoint two people when taking office and two in the middle of his term.

Currently, the lay members serve six-year staggered terms, so only a two-term governor would be able to appoint all three commissioners, and then only toward the end of his second term.

"I don't want a one-term governor to be able to pack the commission," said Sen. Jason Crowell, R-Cape Girardeau, who is also a lawyer.

Source: Missouri Lawyers Weekly (subscription)

Many senators voting for this bill appear to have done so out of a sense of fear. As reported in Missouri Lawyers Weekly, one senator said SJR as not the bill he would write, but he was "willing to swallow a pill this session to prevent receiving a nuclear enema next year."

The "nuclear enema" referred to is the full partisan election of judges or Senate confirmation of the Governor's judicial selection.

Many in Missouri find the Senate's joint resolution problematic and have called for Senate to reconsider its position before the bill if passed on third read and have called on the Missouri House to reject the bill.

The Kansas City Star has said:

A handful of critics have regularly ponied up with hefty donations for campaigns and politicians interested in dismantling the plan.

The Senate resolution… is less draconian than proposals to elect statewide judges or allow for Senate confirmation of the governor's appointees.

But by giving the governor the majority of appointments on the nominating commission, the resolution sets up the prospect that a one-term governor could affect the state's highest court for many years.

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Once again, though, the legislature wants to fix a system that isn't broken. Missouri's selection system has consistently produced distinguished judges who have served the state and the public well. Recently, the Supreme Court passed rules aimed at increasing transparency in the selection process. There is no reason to politicize judicial selection by giving the governor unilateral power to control the commission through his appointees.

The Missouri Plan also had support in the Joplin Globe.

Advocates of changing the Missouri Court Plan — namely special interests like The Chamber - advance three misleading arguments for change:

(1) The Missouri Non-Partisan Court Plan was designed by Marxists to place control of the judiciary in the hands of an elite few.

False. The Missouri Plan was adopted precisely because selection of judges under the former politically based plan was in the hands of an elite few, namely notorious"Boss Tom" Pendergast, who ran the Democratic party in Missouri during the 1920s and 30s. The Missouri Plan was designed specifically to wrest control of the judiciary out of Democratic political control by removing politics from the equation. The plan allowed judges to be selected on merit rather than by political expedience or favoritism. One of the key architects of the Missouri Court Plan: Rush Limbaugh, Sr.

(2) Selection of Judges is Controlled by the Plaintiff's Trial Bar.

False. The appellate judicial commission is comprised of seven members. The commission is chaired by the Chief Justice of the Supreme Court of Missouri (a position that rotates among sitting Supreme Court Judges every 2 years); three members appointed by the Governor (whether Republican or Democrat); and three members elected by the lawyers of the state (including those representing business, prosecutors, criminal defense attorneys, family law specialists, corporate in-house counsel, and yes, even those representing injured plaintiffs).

(3) Nominating Commissions "Jam Governors with Nominees They Would Never Choose Themselves".

Maybe. Missouri Plan opponents might have a point with this one. But, then, is that not the purpose of a non-partisan, merit-based judicial selection plan? I would assume that, more often than not, the most-qualified applicant may not be the most politically expedient applicant. And that is the point, the purpose, and genius behind non-partisan, merit selection of judges.

We know partisan politicians and special interest groups dislike the non-partisan plan, but who supports it? It turns out a broad base of organizations with various political affiliations support the plan:

  • Hon. John Holstein [appointed by Gov. John Ashcroft (R)]
  • Hon. Ann Covington [appointed by Gov. John Ashcroft (R)]
  • Hon. Andrew Jackson Higgins [appointed by Gov. Joe Teasdale (D)]
  • Hon. Edward "Chip" Robertson [appointed by Gov. John Ashcroft (R)]
  • Hon. Ronnie White [appointed by Gov. Mel Carnahan (D)]
  • AARP Missouri
  • Committee for Economic Development
  • Defense Research Institute
  • League of Women Voters
  • Missouri Organization of Defense Lawyers
  • Missouri Republican Attorneys for Civil Justice

Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democratic vs. Republican issues. There is enough politics in the legislative and executive branches, we should keep politics out of our courts. Cases should be decided on the fact and the law, not by partisan politics funded by special interest groups.

Update: April 30, 2012, 4:30 p.m.

There is another very good editorial in the Columbia Tribune by Henry J. Waters III. I encourage you to read the entire article, but here are some highlights:

In their dreams, Lembke & Co. would like the federal system in which the governor (president) simply appoints a judge and the Senate confirms or denies the choice. This purely political method has not gained support in Missouri, and Lembke's recent comments indicates why. He said that by enhancing the governor's role, voters will know whom to blame or thank when a major case is decided.

This is a perfect argument against his plan, as if voters should lie in waiting to punish a governor and senators for every controversial decision in court.

Indeed, the Missouri Plan was created to avoid this sort of excessive politicization. It is intended to substitute merit for raw political connection when judges are selected.

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If this issue gets on the ballot, voters will do best to ponder whether well-qualified judges have been appointed under the Missouri Plan, which has been the esteemed method in use since the 1940s…. The system works best when judges are concerned with interpreting the law evenly rather than in a way a sitting governor and Senate might favor. that sort of political bending could go too far either way.

Read More:

[More on the Missouri Plan]

[More on your 7th Amendment Rights]

(c) Copyright 2012 Brett A. Emison

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