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The Missouri Plan, or: How I Learned to Stop Worrying and Love the Lawyers

August 17th, 2007 by mopns · 2 Comments

“The activists within the Missouri Association of Trial Attorneys, are not always looking for the most qualified people to elevate to judgeships. Many of them are looking to support candidates who agree with their legal opinions.”

By David C. Stokes

Missourians amended our state constitution in 1940 to change the ways judges were selected for the Supreme Court, the Court of Appeals and the circuit courts of Jackson County and Saint Louis City. This was done in response to public concerns about the power of political machines in electing judges under the previous system. Dubbed “The Missouri Plan,” it has been expanded to include circuit judges in Saint Louis, Clay, and Platte Counties. The amendment’s provisions replaced elections with a judicial commission, which reviews applicants for open positions and narrows the list down to three choices. The governor then selects a new judge from that panel. The system has worked very well for Missourians, taking some of the politics out of judgeships and efficiently filling vacancies. However, a few important changes could make the plan work even better.

The recent Supreme Court opening has raised to new prominence the simmering dispute over the true non-partisanship of the Missouri Plan. Allies of Governor Matt Blunt feel that the current appellate judicial commission has not fairly recognized the fact that he, not the commission, is the elected leader of Missouri. The current make-up of both the commission and its recently selected panel, which many conservatives feel is tilted toward the left, seem to substantiate this charge. This has led to calls from some legislators to do away with the Missouri Plan. While changes need to be made, doing away with the plan entirely would be going too far.

The most important change for the Missouri Plan is the elimination of six-year, staggered terms for governor-appointed positions. In theory, staggered terms might allow for more
independence and less partisanship, but in reality they have served to allow outgoing governors to load up commissions with their supporters beyond their terms in office. For example, former governor Bob Holden made six appointments to various judicial commissions during the time between when Governor Blunt was elected and took office two months later. Stacking the deck with supporters of your own party is, I am confident to say, not what the framers of the Missouri Plan had in mind. Making the appointed positions’ term coincide with the governor’s own term would serve to respect the wishes of voters and whatever candidate they choose to elect.

The second change I recommend is to add one appointed position to each commission, making the number of appointments equal to the number of judges and attorneys on the commission. Currently, the appellate commission is made up of the chief justice of the Supreme Court, three lawyers elected by the bar association, and three gubernatorial appointments. Each of the county commissions is made up of that circuit’s chief judge, two elected lawyers, and two gubernatorial appointments. Adding an additional appointment to each commission would make the landscape for selection more balanced. Let us not delude ourselves about the goals of the lawyers who run for judicial commissions via bar association elections. They, particularly the activists within the Missouri Association of Trial Attorneys, are not always looking for the most qualified people to elevate to judgeships. Many of them are looking to support candidates who agree with their legal opinions.

Supporters of the Missouri Plan can point out that the retention votes appointed judges will face in the future act as a check and balance for the system. The retention vote is a good practice, but electoral history has shown it is almost impossible to get enough people to focus on the issue. Last year in Saint Louis County, a judge was handily retained by voters when an overwhelming number of lawyers, in a bar association survey, had advised against retaining her — a recommendation echoed by area newspapers. Perhaps we could improve the retention vote system by taking a page from Illinois and mandating a 60-percent vote in favor of retention in order for a judge to remain in office. I believe that is an idea worth debating.

Finally, the Legislature should take steps to make it clear to all that the various judicial commissions’ actions are covered by the state’s sunshine law. It astounds me that an appointed commission thinks it does not have to comply with Missouri citizens’ basic right to know what their government officials are doing. With these changes, I believe we can reach a fair compromise and retain the best parts of the Missouri Plan for judicial selections, without returning to the electoral problems that led us to create the plan in the first place.

David Stokes is a policy analyst for the Show-Me Institute.

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Tags: David Stokes · MO Supreme Court · Show Me Institute

2 responses so far ↓

  • 1 D.R.Browning // Aug 17, 2007 at 1:59 pm

    The electorial problem that creates the Missouri Plan was Tom Pendergast and he is dead and playing cards with Francisco Franco. There should be no retention votes for Circuit Judges. They should be elected from a portion of their circuit. Example there should be apportionment of judicial districts in jackson county and each judge elected from one district but sitting for the entire circuit. The normal vote in Jackson County is about 77000. An aportioned district would be about 2500 voters. A small enough group of voters that a judicial watch organization could report to the community. A small enough group of voters that elections would not be overly expensive, A small enough group of voters that the people could retake control.

    We should make similar changes to the appellate and Supreme Court judge districts.

    Us Congressional candidates are not required to reside in the district they seek to represent. We could do that with Judges, This would make them face a group of specific voters. They would not be able to hide behind the the screne of a retention election. This would strip the power of big contributors to sway their elections.

    Judicial independence is important and this would keep the Judges independent of the pressure of Jeff City politics. They would have their own powerbase, and would stay in as long as their voters thought they were doing a good job.

    That is really what is needed

  • 2 Jim Byrne // Aug 18, 2007 at 9:40 am

    Mr. Stokes,

    Nice piece, and very politically correct. However, you have failed to address a couple of very important pieces of the non-partisan plan that make it a complete failure.

    First: The Governor appoints the judges. The Governor is the highest ranking member of a political party in the state. It doesn’t take a political analyst to understand that party politics influence his decision. If the commission doesn’t send him a candidate that fits, he just, as he has currently done, asks the commission for more candidates.

    Second: As you stated, The Non-Partisan plan was established in 1940. The Missouri Supreme Court, in 1987, created Missouri Supreme Court Rule 12.21, a court rule that hides all complaints that are filed against judges, unless the Commission on Removal Retirement and Discipline of Judges decides to formally pursue the complaint. This commission is made up of 2 judges, 2 attorneys, and 2 lay people. Of the 2 lay people, I can only find information about one of them. I goggled, Ms. Barbara Bennett, and found that at the time of her appointment, she was the CEO for Women’s Support and Community Services Agency. The other, Ms. Adrienne B. Morgan is not even googleable. I think I created a new word.

    These two women may be very nice, but I don’t see anything that would make me say that they know anything about judicial misconduct or corruption. Even if they did, it takes 4 out of the six members to agree before a formal investigation is started. Do you think that the 2 judges were appointed by their peers because they would protect their peers, or take them down? Do you think the 2 attorneys appointed by “The Bar” were sent there to protect or take down judges? Remember, judges are also members of “The Bar”.

    Hypothetically, a judge could be up for retention that has had 200 complaints filed against them. Would the voters know that? Opinions of the Circuit Courts are not published, so the voters know nothing about how the judge they are voting to retain thinks. Opinions of the appellate courts are published, but only the ones they want you to see. You see, the appellate courts have a way to issue opinions that contradict law, hide fraud upon the court, and prevent the citizens from exposure to judicial corruption. The appellate courts may issue an unpublished memorandum opinion. This is their method that enables them to hide corruption. All the appellate court needs to do is determine that the opinion would not be precedential, even though it is!

    How do we fix it? TRANSPARENCY!

    1. Complaints that are filed against judges and attorneys must be reviewed by in independent commission, of which no member of “The Bar,” is necessary to pursue a formal complaint.

    2. Until an independent commission is established to review the complaints, all complaints are available for review by the voters.

    3. An outside research group should determine if a case is precedential or not. We need to take away the courts ability to cover-up corruption.

    4. All courtroom activity must be recorded. Included motion hearings.

    5. Obvious cases of judicial misconduct must have a venue for reporting that can prevent the cost of appellate review.

    6. All discussions that take place in the judge’s chambers that are related to cases must be recorded.

    7. Remove Gary Gaertner as Chairman for the Commission on Removal Retirement and Discipline of Judges. Judge Gaertner is a member of the corrupt pack, and I can prove it. This is not theory, it is fact. It can be documented.

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