From the Report by the Commission on Judicial Independence

APPENDIX 1
History of Merit Selection

In 1821, when Missouri first entered the Union, all judges were appointed for life by the governor with senate consent. After much public discussion, voters amended the Missouri Constitution in 1850 to provide for popular election of judges. The Supreme Court and Circuit Court judges were elected by the people to a six year term. In 1872, the terms of Supreme Court judges were extended to twelve years.

Between 1875 and 1909, Missouri added its three Courts of Appeals. In all cases, the constitutional amendment creating the Courts of Appeals all provided the judges should be elected by the people to twelve year terms.

Nationally, the elective judiciary had its start in the 1830s. Mississippi, in 1832 was the first state to elect all judges. New York followed Mississippi in 1846. Within ten years, 15 of the 29 states existing in 1846 had, by Constitutional Amendment, provided for the popular election of judges, and of the states which have entered the Union since 1846, every one has provided that most or all judges shall be popularly elected for terms of years.

However, by the close of the nineteenth century, disenchantment had begun to set in with the election of judges. In the first decade of the twentieth century, there appeared to be a growing awareness of the judicial selection problem and some groping for answers.

One of the most widely quoted sentences in all of judicial selection for over a century was found in Roscoe Pound's 1906 address on "The Causes of Popular Dissatisfaction with the Administration of Justice." That sentence, "Putting courts into politics and compelling judges to become politicians in many jurisdictions has almost destroyed the traditional respect for the bench." Judges from the Supreme Court to the circuit level in states that have not adopted some form of merit selection believe this statement is still true 99 years after it was first stated by Roscoe Pound.

In 1913, William Howard Taft, then a former President and future Chief Justice of the United States, addressed the subject of selection of judges at the American Bar Association Convention. He severely criticized both partisan and nonpartisan elections and urged a return to the appointed system.

The retention election, based upon historical information available, was the idea of Albert M. Kales. Kales offered the following suggestion:

The appointment might be for a probationary period-say three years-at the end of which time the judge must submit at a popular election to a vote on the question as to whether the place which he holds shall be declared vacant. This is not a vote which puts anyone else in the judge's place, but a vote which can, at most, only leave the place to be filled by the appointing power. Such a plan must necessarily promote the security of the judge's tenure if at the popular election his office be not declared vacant. After surviving such a probationary period, his appointment should continue for-let us say-six or nine years. At the end of that place the question might again be submitted as to whether his place should be declared vacant.

This statement by Kales constitutes a very clear enunciation of the principle of tenure by non-competitive election. No hint of such a device had ever been found in any prior writings. This device today remains a feature of the merit plan in substantially the same form today as it was when it was first proposed by Kales. The basic principles of the three features of merit selection and tenure-nomination, appointment and elective tenure-were first proposed by Kales in 1914.

In 1926, Harold J. Laski, an American lawyer who made a name for himself in the English legal world in a scholarly article prepared for the Michigan Law Review, for the first time, proposed gubernatorial appointment with the aid of an advisory committee consisting of a judge of the Supreme Court, the Attorney General, and the President of the state bar association. Here, for the first time, a lawyer as well as judges was proposed for participating in the nominating function.

From 1928 forward, when Herbert Harley, founder of the American Judicature Society, proposed that a governor, not the Chief Justice, should be the appointing authority, little or nothing is heard about appointment by an elected Chief Justice and more and more is heard about bar participation in both judicial appointments and judiciary elections. This idea reached its zenith in the in the early 1960s by the American Bar Association through its committee on the federal judiciary which screens candidates and advises the United States Justice Department in regard to federal judicial appointment.

The year 1931 marked an important development in the evolution of the merit plan, for it is then that we find the first suggestion of the final element in the present day nominating commission-the lay citizen member. The occasion was an editorial discussion of a proposal in The Panel, a publication of the Grand Jury Association in New York, for a nonpartisan commission to make recommendations for judicial elections in New York.

The decade of the 1930s witnessed a rapid increase in professional discussion of judicial selection problems, and new ideas came thick and fast. In Georgia and Utah, there appeared proposals for appointment by the governor from lists of nominees submitted by the bar. At the 1933 American Bar Association Convention in Grand Rapids, Michigan, the Conference of Bar Association Delegates, forerunner of today's ABA House of Delegates, conducted a symposium on judicial selection at which numerous proposals were advanced and discussed, most of them calling for some form of bar association participation or lawyer-laymen nominating commissions, with appointment by the governor.

California came close to being the first state to bring merit selection from fantasy to fact in 1933. The proposal was defeated at the polls in 1934.

In 1937, the ABA House of Delegates formally endorsed adoption of the merit plan as an Association objective. In 1940, Missouri became the first state actually to put a nominative-appointive-elective plan into operation and make the "Missouri Plan" along with "Kales Plan," one of the synonyms for merit selection and tenure.

Prior to the adoption of the Missouri Non-Partisan Court Plan, judicial selection in Missouri was controlled by political machines and party bosses who sought to unseat judges who issued unfavorable rulings. Judicial positions were so tenuous under machine politics that from 1918 to 1941 only two Supreme Court Justices were successful in their bids for re-election.

In Missouri, the measure was placed on the ballot through an initiative petition. The plan called for judges of the Supreme Court, Courts of Appeals, and Circuit and Probate Courts in the City of St. Louis, Missouri and in Jackson County (Kansas City) to be nominated by the governor from a list of three persons submitted by the judicial nominating commission. Judges would stand for retention in the first general election after twelve months in office. While the judicial article has been amended, the Missouri Non-Partisan Court Plan was left intact.

It is difficult to determine the precise reasons why Missouri became the first state to adopt the Missouri Non-Partisan Court Plan favored by the American Judicature Society and American Bar Association, but certain factors contributed greatly to a successful campaign. One was the general political climate of the times. The Pendergast and Shannon faction of the Jackson County Democratic party fought a bitter intraparty battle in the state Supreme Court primary contest in 1936 and, two years later, they joined forces in an unsuccessful effort to unseat an able and popular incumbent Supreme Court justice who was reputed not to have voted Pendergast's way in certain litigation before the Court. The blatant injection of party factional fights into the selection of judges for the highest court in the state alarmed many lawyers and many prominent citizens in Missouri. On the other side of the state, ward leaders succeeded in getting a person elected to the St. Louis Circuit Court who had never really practiced law but had served as a pharmacist in a St. Louis hospital in the years preceding his election to the circuit bench. Despite the fact that he rated at the bottom of the list in the Bar poll in 1934, he was elected to the Circuit Court. His subsequent service on the court during the next six years was severely criticized by the St. Louis press. This is the famous Judge Padberg story.

Although Judge Padberg was admitted to the bar in 1927, up to the time of his election he had made his living as a pharmacist in a St. Louis hospital. During the eight years between his admission to the bar and the time of his taking office as a circuit judge, he had been the filing attorney in eight divorce cases and in one annulment case. In 1934, he was entered in the Democratic Primary by a friendly Democratic committeeman. In the St. Louis bar association poll, he received only 42 votes, running 19th out of 21, while the top man received 527 votes. Since only nine judges were to be nominated, he failed to secure endorsement. But in the primary, he was one of the nine successful candidates, receiving the third highest number of votes. Then in the Bar Association's pre-election referendum, he was low man among the 18 candidates. In the general election he won - it was a Democratic year.

What kind of judge did he make? The St. Louis Post-Dispatch contended, "Padberg's six years on the bench have been a humiliation to the law and to the city." He was in charge of a grand jury whose task was to investigate flagrant election frauds. As foreman of this jury, there was an "old-time politician who had a flock of relatives on the city payroll; among its other members were three with political connections." This grand jury not only failed to return indictments, but it declined to go through the motions of investigating the election frauds. Judge McAfee, a fellow judge, summarily discharged this grand jury, unprecedented in St. Louis. His conduct in the S. N. Long Warehouse Co. case caused two other judges to reverse, in effect, his decision.

In 1940, Padberg failed to secure re-nomination when he lost in the Democratic Primary. He ran tenth in a field of 21 - again he ran much better than the St. Louis Bar Association referenda taken before the primary would indicate. After this defeat, there was a move by certain members of the Democratic Central Committee to have him placed on the ballot to run for a vacancy created by the death of Circuit Judge Rowe. This move was vociferously opposed by the press, and created much antagonism toward the then present method of election, just at a time when the merit selection question was before the people.

Thus the public in Missouri was exposed in the late 1930s to unfavorable stories about the selection of judicial candidates in the state, and this undoubtedly helped to pave the way for a reform campaign that followed.

On the positive side, the campaign for the adoption of the Missouri Non-Partisan Court Plan in Missouri was well-organized and executed. The leadership of the Bar Association of St. Louis first developed a concrete plan for judicial selection, the Missouri Bar State Association and the newly-formed Lawyer's Association of Kansas City worked closely with the St. Louis group in refining its provisions, and in building support for it among lawyers in the State.

After the Missouri Non-Partisan Court Plan was adopted in 1940 as a Constitutional Amendment by initiative petition, opponents said the voters did not understand it and persuaded the 1941 legislature to submit its repeal. The plan received twice the majority in the second election in 1942 than it did in the first election in 1940. Thereafter in 1944, Missouri had a Constitutional Convention which submitted an entire new constitution. While an effort was made to persuade the Convention to leave out the Missouri Non-Partisan Court Plan, the convention kept it and the new constitution containing it was adopted by an overwhelmingly favorable vote. No further effort was made against the plan until 1955 when a repeal measure was offered to the legislature. It was voted down by a two to one vote in the House and was never considered in the Senate.

In most areas of Missouri, voters still elect judges in partisan elections. In 1970, voters extended the Missouri Non-Partisan Court Plan to judges in St. Louis County. Three years later, voters extended the nonpartisan court plan to judges in Clay and Platte Counties. These changes are reflected by the Missouri Constitution as amended in 1976. The Kansas City Charter extended the nonpartisan selection plan to Kansas City Municipal Court judges as well. Under the Constitution, other judicial circuits may adopt the plan upon approval by a majority of the voters in the circuit.

The Missouri Non-Partisan Court Plan came under fire again in the early 1980s. In 1982, a Supreme Court justice was accused by his colleagues of manipulating the selection process to "hand pick" the justices who would fill three vacancies on the Court. In 1985, the Governor appointed his 33-year-old Chief of Staff who had no judicial experience, to a vacancy on the Supreme Court. These events led to annual efforts by the Missouri General Assembly to modify or replace the nonpartisan court plan. Not surprisingly, some bills were directed at the ethics of the nominating commission and the governor in judicial appointments. A bill introduced in 1989 would have prohibited the governor from communicating directly or indirectly with members of the nominating commission until the nominees for a judicial vacancy were submitted to the governor. In both 1988 and 1991, proposals were made to abolish the nonpartisan court plan. Between 1990 and 1993, measures were introduced that would alter the selection process for the non-lawyer members of nominating commissions; require senate approval of gubernatorial appointments; impose twelve year term limits on all judges; increase the affirmative percentage required for retention to 60 percent; and allow voters to petition for a special retention election for judges in their area. None of these bills were enacted.

In the Missouri statewide election of 1990, the average affirmative percentage for judicial retention candidates dropped to 59 percent. Affirmative retention percentages had been declining slowly but steadily since 1976, when the average affirmative vote was 83 percent.

Worried that a persistence in this trend would result in the removal of qualified judges and would discourage qualified candidates from seeking judicial office, The Missouri Bar began a public education campaign to provide information about Missouri's judicial system to the media and the general public. Bar officers and Missouri judges appeared on radio and television talk shows, and visited with newspaper editorial boards throughout the state. A brochure titled "Voting for Missouri Judges" to familiarize voters with the selection process and the proper role of judges was published by The Missouri Bar.

In 1992, 13 years ago, The Missouri Bar, the Bar Association of the Metropolitan of St. Louis, and the Kansas City Metropolitan Bar Association conducted the first statewide evaluation of judges standing for retention. Evaluation results are published and distributed to the public in a booklet called "Voters Information about Judges" along with a photograph and biographical information for each judge.

The Missouri Non-Partisan Court Plan has served as a model for thirty-four other states that use merit selection to fill some or all judicial vacancies. That means that sixteen states still elect their judges.

In the late 1960s when Glen Williams wrote his famous article, entitled "The Merit Plan for Judicial Selection and Tenure - Its Historical Development," Williams predicted also an end, at some point in time, to the "device of tenure by non-competitive election would pass out of the picture." This has not occurred despite the advent of special commissions or committees specifically formed to handle problems of judicial discipline and removal far better than the voters possibly could. Despite predictions, the election retention process has continued to be an important part of the Missouri Non-Partisan Court Plan and now may be more important than ever as a result of the nature of the attacks made in the legislature concerning the judiciary.

The chief role of the non-competitive elective tenure in the future, will be a reassurance to people who are steep in the elective tradition, that in adopting a merit plan, they are not actually giving up everything but are still retaining an essential part of the elective process. There are those that still predict the elective process will be set aside as more and more states switch to initial selection by nomination and appointment. It has not come to pass that the ultimate pattern of merit selection and tenure will turn out to be nomination by a commission and appointment for life for good behavior. The public must have confidence in their ability to remove judges.

In Missouri, other than judicial retention elections and regular elections where merit selection has not been adopted, judges may be removed in one of two ways:

a. On the recommendation of the Commission on Retirement, Removal and Discipline, Supreme Court may suspend discipline, reprimand, retire or remove a judge;

b. Judges may be impeached by the House of Representatives. Impeachments are tried by the Supreme Court or by a special commission in the case of impeachments of the governor or a Supreme Court justice. Convictions require the concurrence of 5/7 of the Court or commission.

Many scholars agree a better key to true nonpartisanship should be found. The ideal answer is for everyone involved, to keep politics completely out of mind, with respect to both commission membership and judicial appointments. That, however, is an unattainable ideal. The most practical way to neutralize opposing forces is to balance them and that is the theory behind bipartisanship in commission memberships. To make selections on a party basis for a position that is supposed to be nonpartisan is a contradiction. Intellectuals who have studied merit selection believe a new and better approach is needed. They say that approach probably will be by way of perfecting our means of discovering and evaluating the affirmative traits which make for excellence in judicial performance and, having assured themselves of getting them, indulging in the luxury of ignoring irrelevant considerations like party affiliation to the point of not caring what the judge's political leanings may have been prior to appointment, or how many of which party are now on the bench.

The state of Missouri has always been a leader with respect to impartiality and accountability of the judiciary. In fact, it is safe to say Missouri is the leader in the nation. It is important to note in the 65 year history of the Missouri Non-Partisan Court Plan, with few exceptions, there have been no substantial complaints about the Plan. While Bills and Constitutional Amendments have been offered from time to time in the legislature, no significant change has ever been made. There has never been a public outcry for modifications or deletions. The Missouri Non-Partisan Court Plan has been considered fair and most importantly, has continuity with both Democratic and Republican administrations.

One of the true strengths of the Missouri Non-Partisan Court Plan is a review of its history. A review of the problems it solved at the time it passed remains one of its greatest strengths. There are some that believe retention elections every six years, and even twelve years, continues to be an impediment to outstanding judges because elections continue to provide uncertainty in the judicial arena. The question must still be asked, would an experienced, competent lawyer, who had developed an outstanding law practice, and would be considered by all involved to be an outstanding candidate for the judiciary, ever subject himself to being a judge if he knew by doing so he would be subjecting himself to election and therefore, after even an extended period of time, have to return to the practice of law with no clients? Who would want to start over at the age of 50, 55 or 60? Critics of merit selection should place themselves in the shoes of the judiciary. Once they do this, it is easy to see why the nation's Founding Fathers believed an appointive judiciary was the choice of a new nation.

Today the combination of schemes and methods used to select a state's judges is almost endless. No two states are alike, and few employ the same method for choosing judges at all levels of their judiciary. Most states employ a hybrid of methods, which may include appointive and elective methods and commission assistance or nomination. In addition, each state has its own unique system of trial courts, appellate courts and courts of last resort. From this diverse collection of fifty states, the choices of judicial selection provide an excellent variety of methods to compare and contrast.

It is possible, however, to identify some trends and clear preferences among the many choices for a state looking at other examples. Forty-two states within the United States use a form of judicial appointment for at least part of the judicial branch of government. Of those forty-two using an appointive method, a majority of thirty-four use nominating commissions to assist the Governor in making selections. Of the remaining eight states, there is a wide assortment of systems which include judges appointing judges, elected councils nominating candidates or various levels of legislative branch involvement. These latter examples are vastly different than the method currently in place in Missouri.

Because of the various structures of the judiciary in our nation, a closer examination of the different levels of the judicial branch is necessary in seeing how judges are selected. Regarding the Supreme Court or a comparable court of last resort, a majority of twenty-nine states utilize an appointment method for their highest court. Of those twenty-nine states, twenty-four use nominating commissions to assist governors in making the decision. For the appointive states that do not use a commission like Missouri, four states provide for the Governor to make the appointment outright without any other involvement and one method excludes the Governor entirely.

Only thirty-nine states employ an intermediate court of appeal. Of those thirty-nine states, a majority of twenty-two states provide for gubernatorial appointment of which nineteen of those are appointments made with commission assistance or nomination. Two states allow for a Governor to make the appointment outright and one method involves the legislature.

While there has been a movement towards a commission-appointive system, it must be noted that a minority of states use an elective system for the Supreme Court and the intermediate appellate court. In the case of the Supreme Court, twenty-one states utilize a traditional election and in the case of the appellate court, seventeen states employ elections in judicial selection. However, in a majority of each of those cases, the elections are non-partisan in nature and without the complications of party politics. Only a stark minority of states uses partisan, party-politics elections in naming judges to the bench.

At the trial court level,, the analysis is significantly different. There are forty-seven states that have a single court of general jurisdiction and three states that have two or more courts of general jurisdiction. In selecting trial court judges, the nation is in a similar position as is Missouri using a variety of methods and involving a diverse number of participants. While thirty states elect their trial court judges, at least initially, seventeen of those states are non-partisan elections. Some of those elections are for the initial term with another retention method used later in one's term. Twenty-three states use an appointive system of which nineteen of those twenty-three require the use of a nominating commission. California residents apparently have an option of selecting the method of selection for their trial court judges.

While there are countless varieties of judicial organization and judicial selection, the movement has been towards an appointive process. Since 1980, seventeen states have moved away from elections or have strengthened a process that involves a diverse collection of participants that nominate and appoint the judiciary with the common goal of integrity, impartiality and accountability.