Missouri's Legislators Propose Change to Methods of Judicial Selection

May 24, 2012 (Press-News.org) Missouri uses a merit-based judicial selection process called the Nonpartisan Court Plan. Over the years, the selection process has become known as the Missouri Plan. The plan was adopted in 1940 to counter widespread abuses in the judicial system by "Boss Tom" Pendergast and his political network across the state.

Since the adoption of the Missouri Plan, 34 other states have used it as a guide in crafting their own policies to fill judicial vacancies.

And yet, the state's legislature may be shaking things up again. Earlier in the year the legislature attempted to make it harder for Missouri employees to prove employment discrimination cases, now they are attempting to change how judges are chosen to serve the judiciary system.

The judicial selection system has remained largely intact since its inception, but changes may be made after November's election. In a move that has been in the works for over seven years, the Missouri legislature is proposing a constitutional amendment that changes how judges are selected.

Essentially, the amendment would allow the governor a greater degree of control in choosing judicial candidates.

How Does the Current System Work?

There are two ways that a judicial vacancy can be filed within the state of Missouri.

The first is through a typical election. Citizens vote for the candidate they prefer from a pool of challengers. A candidate registers with the state, forms an election committee and campaigns throughout the county in which he or she would like to be judge. This system is used to place trial judges in 110 counties throughout the state. The proposed amendment does not impact this system.

The second is by governor appointment. For example, if a judge retires in a non election year, the governor will appoint a judge from a slate of three nominees chosen by a judicial commission. The judicial commission consists of:
- A Supreme Court Judge
- Three attorneys, one from each appellate district elected by members of the district bar association
- Three citizens (cannot be licensed attorneys) selected by the governor from each appellate district

Whomever the governor appoints must stand for election in the next election cycle. The voters then decide whether or not to keep the judge in office.

The Proposed Amendment Changes the Judicial Commission

Missouri State Senate measure SJR 51 is a constitutional amendment that would modify the composition of the Appellate Judicial Commission. This measure changes the selection process for judges to both the Supreme Court and Court of Appeals by allowing the governor to place four, instead of three, commissioners.

If passed the Supreme Court Judge serving the Commission would be replaced with an additional member appointed by the governor. As a result, the Supreme Court would lose its voting position on the Commission. The measure also removes the requirement that appointed members be non-bar members.

The appointed Commission members will continue to serve four year terms, and the appointments will be staggered. This allows the governor to select two members at the time the governor takes office and two additional members during the middle of the governor's term.

Why Do Some Believe the Current System Needs Change?

Interest groups and Republican lawmakers have attacked the current process. They believe the current selection process does not sufficiently allow the public to hold the judiciary accountable. Those who support the measure state it will return this power to the people. If passed, the people of Missouri will be able to hold the governor responsible for members he or she appoints to the judiciary.

One group lobbying for the change argues that the original plan needs to be "retooled" to provide a stronger judiciary system. The group notes that many of the states which implemented the original judicial selection process have made changes. For example few states still allow a state supreme justice to be a member of the selection committee.

Greater Governor Control Interjects Politics into Judicial Selection

Opponents argue the measure will allow politics back into the judicial selection process and ultimately destroy the nonpartisan court plan -- a plan that was originally initiated to move the state away from appointing judges based on politics.

The Missouri Bar association has also voiced further concern regarding the proposed amendment. Their worry is that when a governor has greater control those who provide money to the governor's campaign might have a greater say in judicial appointments.

A main concern is what effect politics will have in judicial selection. Will the courts continue to be an even playing field where, for instance, a worker has a fair say against his more powerful employer? There is an appearance of impropriety that begins to seep in when politics plays a larger role in judicial selection.

In the 1930s, the public was unhappy with the role that politics played in judicial selection, because Judges were subject to outside influence. Dockets also slowed as Judges spent much of their time campaigning. The past can provide a lesson for the future.

Not only are changes to the judicial selection process being discussed, many proposals to limit employment discrimination suits are also pending. While the legislature is considering various bills to curtail individual rights, it is more important than ever to contact an experienced Kansas City employment discrimination attorney.

Article provided by Holman Schiavone, LLC
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