An initiative petition circulating around the state that would repeal the current Nonpartisan Court Plan has met with a cool local reception. The petition would place a measure on the ballot that, if approved, would replace the current nonpartisan system for selecting judges with a partisan system in which judges would be elected by party similar to other statewide officeholders. Judges of the Supreme Court and the district Courts of Appeals would serve eight years instead of the current 12.
The measure would also change the way in which judges are appointed. Currently, the statewide Nonpartisan Judicial Commission submits three nominees to the governor, who will choose one of the three. Should the governor fail to do so within sixty days, the commission would appoint one of the nominees to serve on the bench. The ballot initiative would have the governor appoint judicial nominees to fill vacancies with the advise and consent of the Senate. Confirmed nominees would fill positions until December 31st following the next general election after the expiration of twelve months in the office. Governors would be able to make recess appointments, but these appointments would terminate if the advise and consent of the Senate is not given within thirty days after the senate has convened in regular or special session.
Beginning after November 2, 2010, judges of the supreme court whose terms expire shall be replaced by individuals elected by the voters eligible to vote within the state. Each such duly elected individual shall be entitled to serve for the term prescribed. Nothing shall prevent judges of the supreme court who were appointed under a previous method of judicial selection or appointed to fill a vacancy from seeking election to the supreme court. Currently, judges are appointed and then retained by a yes or no vote of the people.
The petition relaxes the restrictions on political activities by judges. Under the initiative, a judge or judicial candidate may announce his or her views on disputed legal or political issues provided that the judge or judicial candidate does not make pledges or promises to render specific rulings or decisions on pending litigation. Judicial candidates and judges who are judicial candidates shall be allowed to solicit, receive and make campaign contributions, and make and receive the benefit of campaign expenditures, as may be provided by law.
The petition is being pushed by a group called "Better Courts for Missouri." On the front page of their website, they describe themselves as "...a coalition of Missourians from all walks of life, dedicated to fixing the method by which Missouri judges are selected. The judges on our highest courts make decisions that profoundly affect every Missourian. Everything from jobs and wages to health care and family values are affected by the powerful judges on those courts. That is why we are dedicated to ensuring that openness, accountability, independence, and excellence are represented in the Missouri Court Plan for selecting judges." They charge that "our highest courts have been under the influence of legal industry special interest groups for years," accusing "these groups" of "wanting nothing more than to take down our tort reform laws." Better Courts for Missouri accuses personal injury attorneys of encouraging courts to "strike down laws for their own financial benefit."
But the petition has met with a cool local reception. County Clerk Lisa Hargrave said that if judicial elections were to become partisan elections, it would lead to greatly increased costs for her office to count ballots, print paper, and advertise the election. "The system is not broken now, so why fix it," she asked. Commissioner Dennis Gabbert said that it would not improve the judicial system and that it would simply bring the level of judges down to political parties and popularity contests. Presiding Commissioner Kevin Austin noted that the State of Missouri just ended the political patronage system that had been used to select Department of Revenue offices for many years and that it wouldn't make sense to go to a partisan system. "We'll all pay more," added Commissioner Rob Ruckman.
Jerry Drake, who would be affected by the judges that he would argue before as a lawyer, said that he was not a fan of the current system, but that he was not convinced that the petition was any answer. The problem he saw with the current selection process was what he called the substitution of the power of a few for the electorate. Having dealt with elected judges on the local level, Drake said that "the judges you elect are no less motivated than that ones that you appoint." But he said that didn't mean that he was going to sign the petition. He said that his main concern was what he called the secrecy behind who was funding the petition. He added that he was concerned that the judiciary would become a tool of special interests who would simply taylor the courts to suit their agendas like they did the legislature. A former legislator, Drake said that the legislature was dominated by special interests and that he didn't want to see the judiciary go the same way.
State Senator Brad Lager, in e-mailed comments to the Sheridan Express, said that he thought the state didn't need to eliminate the court plan, but that some changes were needed that he said would make the court system actually non-partisan. First of all, Lager said that he wanted more common people on the commission than lawyers. He said that as things stood right now, the lawyers on the commission or their firms would end up practicing in front of the judges whom they help pick. He compared it to allowing the CEO's of all the energy companies to pick members of the Public Service Commission. "It is bad public policy and simply not good government," he said.
Other ideas for reform Lager said were needed included increasing the number of people on the panel sent to the Governor. He said that the Governor should be given power to reject a panel of nominees he didn't like, meaning that the commission would have to put forward a new slate. He also said that there needed to be more transparency in the process. "There is no reason that only select lawyers are allowed to know the nominees and learn about them in private closed-door sessions," said Lager in his comments.
Lager said that the state should open up the entire process, saying that all documents, lists, and interviews should be open to the press and public. And instead of letting the Missouri Bar Association pick the members of the Commission, Lager said that everyone nominated to the commission should stand for Senate confirmation, like other boards and commissions appointed by the governor.
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