Examining Nonpartisan Judge Selection

JEFFERSON CITY - The Missouri Non-Partisan Court Plan was created in 1940 when citizens petitioned to put it on the ballot, 67 years later one conservative group in attempting to change the plan by putting it back on the ballot.

Bill Placke, president of the St. Louis chapter of the conservative activist group Federalist Society, said he has written an amendment that would modify the current court plan.

Placke's amendment has not been submitted to the Secretary of State's Office. It has to be submitted by May 2008 in order for his organization to gather signatures to put it on the November 2008 election ballot.

Constitutional amendments must either go through the legislature and then be approved by voters or can go directly on the ballot if a citizen can obtain enough signatures on a petition.

Once the ballot language is submitted it goes through a complicated process that involves the offices of the Secretary of State, the State Attorney General and the State Auditor. If the language is approved, Placke will have to collect signatures from the equivalence of eight percent of votes cast in the 2004 governor's election from six of the nine state congressional districts.

Depending on which districts are used, the number of required signatures ranges from 139,181 to 151,619 according to Secretary of State Spokesman Ryan Hobart.

Placke expresses confidence his effort can collect the signatures.

"The ground swell that comes from the average person on the street, it's just amazing," Placke said. "The current plan is a relic."

While pursuing an initiative petition, Placke said he still will push the plan in the legislative session that begins in January.

"We believe we've got enough votes in the House," Placke said. "But we do not believe the Senate appreciates what we've done."

Under Placke's proposed plan, the governor would select a person from a panel of five chosen by a ten-member commission. The governor's selection then would be subject to Senate confirmation.

If the Senate did not approve the governor's selection the process would start over.

The ten-member commission would be composed of five Republicans and five Democrats chosen by the governor, the attorney general, the speaker of the House, and the president pro tem of the Senate as well as by the minority leader of both the House and Senate. Four members would have to be lawyers and two of those chosen by the governor would have to be non-lawyer citizens.

The current nonpartisan court plan requires the governor to choose from three recommendations made by the seven-member Appellate Judicial Commission. If the governor does not choose one of the nominees within sixty days, the Commission makes the decision instead.

The current commission is named by judges, lawyers and the governor.

The non-partisan court plan originally came under fire during the nomination process of Missouri's newest Supreme Court judge this summer. Critics argue the process is hidden from public scrutiny and is political even though the plan was originally put in place to keep politics out of how judges are chosen.

Placke, whose organization held debates across the state earlier this year, argues the system needs to be changed.

"The question isn't whether Missouri's 'Missouri plan' is out of date, but how out of date it is and how we fix it," Placke said.

Placke said when people see his amendment and the new plan it would create, they say his plan is better than the current system.

But Placke said his plan is not an attempt to turn the Missouri judicial selection process into the federal system. "I'd prefer to stay with the Missouri Plan than go to that," Placke said.

Thirty states follow some version of the current judicial selection plan in Missouri, but most states modified the plan during the 1970s and 1980s, Placke said.

"It's time to update," Placke said."We're being left behind."

Placke said the current system is good but must be modified to make the process more bipartisan.

"What we're proposing here I don't think is nutty at all, it melds the plans from other states and is in the middle," Placke said.

Supporters of the current plan acknowledge that the plan could be improved to give citizens more information about the judges but say the plan's basic model, which they say is not political, should remain the same.

Supreme Court Chief Justice Laura Stith said it's important to make sure voters know about the judges they are voting to retain. She said the retention election is different than normal elections because judges don't campaign.

"As judges we should not be judging cases based on political ramifications," Stith said. "The point of a judge is to make sure the judgment is fair. A good judge knows they are not there to give their personal views."

MU Political Science Professor David Valentine said because judges do not campaign, most of the public doesn't know much about the judges they are voting for.

"Well, you can use that to justify that judges are doing a good job, while the other side uses it to say voters don't know what they are doing," Valentine said.

Valentine said some voters get mailings with information about the judges but most information is gained from the media.

"The only time people say no is when a judge does something so outrageous that they draw attention," Valentine said. "So the only thing you have is what you see in the newspapers."

Since 1940 only two circuit court judges have been removed through the retention vote.

"That doesn't convince me that we're putting good judges on the bench," said Rep. Jim Lembke, R-St. Louis County. "It shows me that people don't know who these judges are."

Lembke, who is planning to file legislation next session to change the plan, said an issue he sees with the current court plan is the retention vote.

"The problem with the current system is even though there's a retention vote, the system lends itself to lifetime appointments," Lembke said.

Supreme Court judges are required to retire at age 70. According to the Supreme Court Web site the regular term of a Supreme Court judge is 12 years.

Judges on the Supreme Court must be at least 30 years old, be licensed to practice law in Missouri, have been a U.S. Citizen for at least 15 years and must be registered to vote.

Current Appellate Judicial Commission Proposed selection commission

Seven members:

Three members of the Missouri Bar chosen by state lawyers

Three citizens chosen by the governor

The Supreme Court Justice

Ten Members:

Two members of the Missouri Bar chosen by the governor

Two citizens chosen by the governor

One person, who may or may not be a lawyer, chosen by the Speaker of the House

One person, who may or may not be a lawyer, chosen by the House minority leader

One person, who may or may not be a lawyer, chosen by the Senate president pro tem

One person, who may or may not be a lawyer, chosen by the Senate minority leader

Two members of the Missouri Bar chosen by the attorney general