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Brett Emison
Brett Emison
Attorney • (800) 397-4910

Should Justice Be For Sale In Missouri?

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Groups Targeting Missouri Court Plan Want To Buy Influence Through Elections

Missouri’s non-partisan court plan keeps politics and special interests out of Missouri courtrooms. The Missouri Plan is based on the fundamental premise that cases should be decided on the facts and on the law… not on the amount of influence one of the parties might have over the judge.

As US Supreme Court Justice Sandra Day O’Connor said in support of the Missouri Plan:

Our judges must be capable of staying above politics if they’re going to serve the function of making impartial decisions.

The Missouri Plan is supported not only by members of the United States Supreme Court, but also by many former Chief Justices of the Missouri Supreme Court, including:

  • The Honorable John Holstein (appointed by Governor John Ashcroft, a Republican and US Attorney General under President George W. Bush)
  • The Honorable Ann Covington (appointed by Gov. John Ashcroft)
  • The Honorable Andrew Jackson Higgins (appointed by Governor Joe Teasdale, a Democrat)
  • The Honorable Edward "Chip" Robertson (appointed by Governor Ashcroft)
  • The Honorable Ronnie White (appointed by Governor Mel Carnahan, a Democrat)

The Missouri Plan is also supported by a number of private, civic and business organizations across the state, including:

  • AARP Missouri
  • Chamber of Commerce of Greater Kansas City
  • Civic Council of Greater Kansas City
  • Various Missouri Bar Associations
  • Missouri Organization of Defense Lawyers (MODL)
  • Missouri Association of Trial Attorneys (MATA)

The Missouri Court Plan is under attack by those seeking to influence judges by buying their vote. Just last week, special interest groups donated more than $175,000 to begin a petition drive to end the Missouri Plan and would require judicial elections. Judges could then be bought by the highest bidder like what very nearly happened in West Virginia.

In Caperton v. A.T. Massey Coal Company, a West Virginia coal company tried to buy the vote of a Supreme Court judge after it received a verdict against it at the trial court level.

In Caperton, a West Virginia jury found the Massey Coal Company liable for fraudulent misrepresentation, concealment and tortious interference with contract in this corporate litigation lawsuit and awarded Caperton $50 million in damages. After the award, West Virginia held its 2004 judicial elections.

Knowing the State Supreme Court of Appeals would consider the appeal, Massey’s chairman supported the challenger — Brent Benjamin — rather than the incumbent justice seeking reelection.

Massey’s $3 million in contributions to Benjamin exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee.

Benjamin won by fewer than 50,000 votes and then heard Massey’s appeal of the $50 million verdict against it. Newly elected Justice Benjamin was the deciding vote overturning the verdict.

The United States Supreme Court narrowly held that Justice Benjamin should have recused himself and not heard the appeal because "the probability of actual bias on the part of the judge or decisionmaker [was] too high to be constitutionally tolerable."

However, the Court provided little – if any – guidance as to an actual standard for when recusal is constitutionally required. Rather, its said merely that the question was whether, "under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias or prejudgment that the practice must be forbidden in the guarantee of due process is to be adequately implemented."

There is a serious risk of actual bias when a person with a personal state in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory. In an election decided by fewer than 50,0000 votes, [Massey’s] campaign contributions – compared to the total amount contributed to the campaign, as well as the total amount spent in the election – had a significant and disproportionate influence on the outcome. And the risk that [Massey’s] influence engendered actual bias is sufficiently substantial that it "must be forbidden if the guarantee of due process is to be adequately implemented. [citation omitted] The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice.

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[T]here was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Remarkably, four Supreme Court justices dissented, essentially finding that paying $3 million to purchase a hand-picked West Virginia Supreme Court justice to overturn a negative verdict is constitutionally acceptable. In fact, Justice Roberts disagreed that Massey’s conduct was even an "extreme case."

The Caperton v. Massey Coal case is a clear example of problems with elections of judges. How can a judge be unbiased — much less appear unbiased — in a heavily financed partisan election? Why would we want to introduce such uncertainty, bias and potential injustice into our courts?

Seventy years ago, Missouri adopted the Nonpartisan Court Plan to avoid the very problems posed in the Caperton decision. Under the Nonpartisan Court Plan, judges are selected on merit rather than by political or ideological affiliation. The Missouri Plan has been adopted in some form in more than 30 states.

Despite the Missouri Plan’s success for nearly a century, the plan has come under attack by highly funded special interests in the last several years. In 2010, one such group will pursue a constitutional ballot initiative to end the Missouri Plan and replace it with costly, partisan elections.

Under the proposed ballot initiative:

1. Elections for the office of judge of the supreme court, court of appeals, or circuit court, or the office of associate circuit judge, shall be partisan elections.

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 how much one side contributed to an election.

I encourage you all to support Missouri’s Non-Partisan Court Plan.