This Discussion Guide is part of Community Conversations at FOCUS St. Louis. It is meant to initiate civil discourse around the policies that affect the St. Louis region; to hear each other’s perspective. As is the case with all public policies, this issue is complex and multi-faceted, with many stakeholders. Please keep this in mind as you discuss the Non-Partisan Court Plan in your community.
Revised August 8, 2012
The Missouri Non-Partisan Court Plan – 2012 Ballot
The Missouri Judicial Appointment Amendment (measure SJR51) will appear on the November 2012 ballot in the state of Missouri as a legislatively-referred constitutional amendment. If approved by voters, the amendment would change how individuals are appointed to the Appellate Judicial Commission, which is the body responsible for choosing nominees for the Court of Appeals and the Missouri Supreme Court. The ballot will read:
“Shall the Missouri Constitution be amended to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to appoint a majority of the commission that selects these court nominees; and appoint all lawyers to the commission by removing the requirement that the governor’s appointees be non-lawyers”
Supporters call the proposal a modest tweaking of the vaunted Missouri Plan for selecting judges. Opponents contend it would inject politics into the system and destroy the plan.
In November 1940, voters amended the Missouri constitution by adopting the "Nonpartisan Selection of Judges Court Plan," which was placed on the ballot by initiative petition. The adoption of the plan resulted from a public backlash against the widespread abuses of the judicial system by the "Boss Tom" Pendergast political machine in Kansas City and the political control exhibited by ward bosses in St. Louis. The Missouri Nonpartisan Court Plan, commonly called the Missouri Plan, has since served as a national model for the selection of judges and has been adopted by more than 30 other states.
The Missouri Nonpartisan Court Plan is designed to select judges based on merit rather than political affiliation. It governs the selection of judges at the circuit level in six jurisdictions including Clay, Greene, Jackson, Platte and St. Louis counties and St. Louis City. The Court of Appeals and Missouri Supreme Court also follow this system.
Within the current structure, the Appellate Judicial Commission is made up of one Missouri Supreme Court judge (typically the Chief Justice for a two-year term), three lawyers elected by members of the Missouri Bar, and three non-lawyers appointed by the governor to staggered terms. When a judicial vacancy occurs, the Commission takes applications and chooses three nominees. The governor must pick from among those three. Under the proposed amendment, lawyers would continue to elect three commissioners, but the governor would assume a much larger role in appointing two commissioners immediately after taking office and two additional members midway through the governor’s four-year term. Thus, for years three and four of the governor’s first term, a majority of the Commission will have been selected. The constitution no longer would prevent those appointees from being lawyers. Also, the Supreme Court would lose its voting position on the Commission. Instead, one retired appellate judge would serve as a nonvoting adviser. The slates of judicial nominees for the governor’s consideration would consist of four people instead of three.
The current proposal reflects a concern by some that the current plan gives too much power to trial lawyers and leaves voters with no one to hold responsible for judicial rulings they dislike. Supporters of the amendment describe it as a compromise that stops short of the most drastic option: throwing out the plan and letting voters elect appellate judges. They say that putting the governor in charge of the Commission would dilute lawyers' influence and give voters someone to hold accountable.
James Harris, lobbyist for Better Courts for Missouri, notes that the proposed amendments would bring Missouri more in line with other states that adopted the Missouri model but have since retooled it. Only seven states continue to allow the chief justice to be a voting member of the judicial selection panel.
Opponents point out that giving the governor control would politicize the judiciary and give future governors much power. Governor Nixon has traditionally opposed any changes to the Plan. The Missouri Bar also opposes the proposed changes.
The amendment would replace the chief justice of the Missouri Supreme Court with another gubernatorial appointee, giving laypeople on the Commission a 4-3 advantage. It would also allow a governor to select his commission appointees during his or her term in office; this would likely give the governor more influence over who the Commission selects as judicial nominees. (Currently, the gubernatorial members of the Commission are staggered, so some were named by a previous governor.)
Who else is involved with this issue?
Alternatives to the Missouri Court Plan have been pushed for years by Better Courts for Missouri. Other groups supporting the changes include the Missouri Family Network, the Eagle Forum, Americans for Prosperity and Associated Builders and Contractors. The Missouri Bar opposes changes to the Plan.
Three Possible Perspectives:
Person A believes that judges are not answerable for their decisions and that an elected official should be accountable.
Person B believes that the courts should not be political.
Person C thinks that judges should be held accountable, but that this proposal goes too far.
1) Which of the three perspectives to you most closely align with? Why?
2) Do you support the changes to the judicial selection outlined in the amendment?
3) Will expanding the governor’s power in judicial selection reduce or increase the occurrence of activist court decisions?
Links for further reading:
1. The full text and summary of SJR51.
2. A November 27, 2010 St. Louis Post Dispatch article: Missouri Plan for selecting judges faces new challenge
3. An April 30, 2012 St. Louis Post Dispatch editorial: Least offensive plan to ruin judge selection still a bad idea.
4. A May 10, 2012 St. Louis Beacon article: Missouri House sends court plan changes to voters.
5. A May 10, 2012 St. Louis Post Dispatch article: Nonpartisan court plan changes headed for Missouri ballot.
6. A May 11, 2012 St. Louis Post Dispatch article: Mo. voters to decide on revising system for appointing judges.
7. A July 3, 2012 Kansas City Star article: Carnahan releases language for Missouri Plan, health exchange ballot measures
8. Injury Board Blog Network: Missouri Non-Partisan Court Plan Attacked For Not Being Partisan Enough.
9. Ballotpedia.org: Missouri Judicial Appointment Amendment (2012).
10. University of Missouri - The Sue Shear Institute for Women in Public Life - Missouri Nonpartisan Court Plan.
11. The Missouri Bar - Advocacy Issues & Resources: Non-Partisan Court Plan.
12. Better Courts for Missouri website.
13. Your Missouri Court: The Judicial Branch of State Government: Missouri Nonpartisan Court Plan.
14. An August 23 St. Louis Beacon Article: Retired Supreme Court judges become face of anti-Amendment 3 campaign.