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Missouri has, at one or another point in its history, used all of the three most common means of selecting judges,appointment, popular election and merit selection. In 1940, after experimenting with different methods of selecting judges for 120 years, the citizens of Missouri decided that the best way to chose judges for our Supreme Court, our Appellate Court and the Circuit Courts of our two largest cities, was a merit selection plan. Missouri citizens decided that the selection of judges in these courts had to be especially protected from politics and from the campaigning for office that goes with politics, including the raising of money. Since 1940, this idea of merit selection of judges, nicknamed The Missouri Plan, has spread across the United States, and to other cities and counties in the state of Missouri.
When Missouri became a state in 1821, all judges were appointed for life by the governor of Missouri, with the consent of the Senate. This procedure was set forth in Missouri's constitution of 1820 and obviously was based upon the federal system. This was the common form of selecting judges in all states at the time.
During the colonial era, judges had been selected by the king, but the kKing's intolerably wide powers over judges was one of the abuses that the colonists attacked in the Declaration of Independence. After much debate during the Constitutional Conventions, it was decided that federal judges would be appointed by the president, but only with the consent of the Senate. This method of selecting judges was then adopted by the individual states of the Union.
Within a short period of time, the appointive system in individual states was criticized and widely rejected. Many citizens of the states with the appointive system believed that the privileged class, especially property owners, controlled the appointive process. This and other complaints resulted in a movement for the popular election of judges.
In 1812, Georgia amended its constitution to provide that judges of inferior courts would be popularly elected. In 1828, Mississippi became the first state in which all judges were popularly elected. Other states soon followed. By 1856, the majority of states provided for the popular election of some or all of their judges. Missouri joined this movement in 1850, amending its constitution to provide for the popular election of its judges.
This method of choosing judges by popular election was a uniquely United States creation, and, although the democratic principles upon which the United States was founded have subsequently been adopted by many countries, the idea of popular election of judges has never spread. No other country selects judges by popular election. This is because of the need for judges to be separated from politics, and the problem of real or perceived prejudice when judges are required to campaign for judgeships (see e.g. "In Praise of Unelected Judges" Brief, Volume 36, No. 9, October 2009 (Australia)).
Criticisms of the election of judges grew over the latter half of the 19th century and reached an overwhelming volume during the first half of the 20th century. During this time, judges were often selected by political machines and controlled by them. Consequently, judges were often seen as biased and/or incompetent. As early as 1853, Massachusetts' constitutional convention delegates refused to adopt the popular election of judges, stating such things as the election of judges had "fallen hopelessly into the great cistern" and that judges had become part of the "political mill."
Attempts were made to take partisanship out of the election of judges by requiring judges to run on a non-partisan ballot rather than being identified with some party. The non-partisan ballot experiment generally failed. By 1927, states such as Iowa, Kansas and Pennsylvania had tried the non-partisan ballot idea and abandoned it. Only 12 states continued to use non-partisan elections by 1927. The major objections to non-partisan elections were that the process was still controlled by political parties and also that the public could not make an informed choice because of lack of knowledge about the potential candidates and their legal abilities. New candidates for judgeships continued to be regularly selected, supported and controlled by political parties.
The turn of the 20th century came when there were complaints of corruption in government, particularly in big cities. Much of this corruption was due to big city bosses ruling big cities. A progressive movement formed and many civic leaders, such as Theodore Roosevelt and Roscoe Pound, stepped forward to try to change things.
In 1906, Roscoe Pound spoke to the American Bar Association on "The Causes of Popular Dissatisfaction with the Administration of Justice" and stated, "Putting courts into politics and compelling judges to become politicians in many jurisdictions [had] almost destroyed the traditional respect for the Bench." In 1913, William Howard Taft, in a speech before the Cincinnati Bar Association later published by the American Bar Association, said that it was "disgraceful" to see men campaigning for the state Supreme court with arguments that their decisions would have a particular class flavor. It was "so shocking, and so out of keeping with the fixedness of moral principles that it ought to be condemned," Taft said.
In 1913, the American Judicature Society was formed to bring about reform of state judicial systems. After considering and combining many ideas, the American Judicature Society created a plan to select judges on the basis of merit. According to the plan, a commission would select a panel of nominees, the Governor would pick one of these nominees and, after a period of time, the citizens of the state would decide whether the judge chosen by the governor would remain a judge. In 1937, The American Bar Association's House of Delegates endorsed this merit-selection plan. After attempts by several other states, in 1940 Missouri became the first state to adopt a merit-selection-of-judges plan. The merit selection of judges has since been known as The Missouri Plan.
The reason that Missouri was on the vanguard for reform of the selection of judges was because of the power of political machines in Kansas City and St. Louis, the resulting damage to the effectiveness of Missouri's courts and the consequential loss of faith in Missouri's courts.
As discussed above, from 1850 to 1940, all candidates for judge in Missouri ran in partisan elections. After the turn of the last century, political machines rose to power in Kansas City and St. Louis. These political machines used their power over the electorate to influence who was nominated to be a judge, who was elected to be a judge, and who remained a judge. Because Kansas City and St. Louis had much of the population of the state, the influence of these political machines could reach all levels of judges in Missouri, including the Supreme Court.
The corruption of the Pendergast and other political machines in Missouri is the subject of many writings, but a few examples of their mischief is illustrative. In 1934, ward leaders in St. Louis succeeded in electing a pharmacist (although technically a member of the bar, he had never practiced law) to be a Circuit Judge on the St. Louis court. The pharmacist was consistently given a low rating by lawyers in St. Louis but nonetheless was elected and served for six years. His tenure was marked by charges of favoritism and corruption. The St. Louis Post Dispatch said, "Padberg's six years on the bench have been a humiliation to the law and to the city."
The situation in Kansas City was no better. Allegiance to party bosses in Kansas City was critical to being nominated and selected to be a judge. In 1936, the Pendergast and Shannon factions of the Jackson County Democratic Party fought a bitter intra-party battle before the public during the primary for a state Supreme Court Judge. Two years later, the factions joined together, again for the public to see, to try to unseat a Supreme Court Judge who was said not to have voted Pendergast's way in a case before the court. The meaning of these political battles over judgeships was not lost upon the citizens of Missouri, especially lawyers. People saw that political allegiance was trumping judicial qualifications in the selection of judges.
Thus, the citizens of Missouri were confronted with charges of corruption and undue influence on judges while they watched the men who would be the judges of their rights identify themselves with powerful political machines, ward politics and political bosses. All of this was against the backdrop of a growing national movement to protect state judges from the influence of politics. In short, the need to fix the way Missouri's judges were chosen was obvious, and the citizens of Missouri were ready.
The adoption of the merit selection plan for selection of judges was not easy. Given the influence of political machines and their interest in maintaining influence on who was chosen to be a judge, it is not surprising that requests that the Missouri General Assembly adopt merit selection of judges fell on deaf ears. A coalition for change, which included business leaders and civic organizations, formed around The Missouri Bar, The Lawyers Association of Kansas City and The St. Louis Bar Association. An initiative petition to amend the Missouri Constitution to adopt merit selection of judges for the Missouri Supreme Court, the Missouri Appellate Court and the Circuit Courts in Jackson County and the City of St. Louis was placed on the ballot in 1940. The amendment passed, and notably, the highest passage percentages came in the most populous counties - those counties containing the cities most effected by political machines and judicial politics.
Even after passage by the citizens of a constitutional amendment, the Missouri General Assembly fought the adoption of merit-selection of judges. The General Assembly voted in 1941 to repeal the constitutional amendment of 1940. This proposed repeal went before the voters of Missouri in 1942. The merit-selection plan for judges received twice as many votes in 1942 as it did in 1940 and thus was preserved.
In 1944, Missouri held a constitutional convention that ultimately submitted an entirely new constitution for Missouri. An effort was made at this constitutional convention to leave the merit selection of judges out of the proposed constitution, but this effort was defeated. The new constitution was thereafter adopted by overwhelming popular vote and included The Missouri Plan.
The expansion of The Missouri Plan Missouri Missouri's constitution provides that judicial circuits, other than Jackson County and the City of St. Louis, may by majority vote decide to adopt the merit selection of judges. Since the adoption of The Missouri Plan in 1940, St. Louis County (1970), Clay County (1973), Platte County (1973), and Greene County (2008) have adopted The Missouri Plan. No judicial circuit has ever voted to abandon The Missouri Plan once it has adopted The Missouri Plan.
Since Missouri adopted the merit selection of judges plan in 1940, The Missouri Plan has served as a model in some form or another for 34 states. There is no universally adopted merit-selection model, but the prevailing themes among merit-selection plans is the existence of a commission to nominate the most qualified candidates based upon merit, appointment by the executive branch and a retention election by the public.
The Current System for Selecting Judges in Missouri Supreme Court and Appellate Court: A seven member commission:
1) A judge of the Supreme Court selected by members of the Supreme Court; 2) Three lay people, one from each of the three appellate districts, appointed by the governor in place at the time each appointment becomes due; 3) Three lawyers, one from each of the three appellate districts, each elected by a vote of the lawyers residing in his or her appellate district.
The elected lawyers of the commission and the appointed lay persons of the commission each serve terms of six years. The terms of the elected lawyers are staggered so that no two lawyers are elected in the same year. The terms of the appointed lay persons are similarly staggered, and no lay person is appointed in the same year that any lawyer is elected. No appointed lay person may be a member of The Missouri Bar. No member of the commission, other than the judicial member, may hold any political office or hold any official position in a political party. Commission members receive no salary or other compensation, but travel and other expenses are paid. The commission members select who on the commission will serve as chair of the commission.
The commission meets and selects three candidates to submit to the governor. In the past few years, the Supreme Court of Missouri has issued orders that have led to increased transparency of the selection process. As of September 2010, in addition to lawyers and judges submitting applications for an opening, a rule change encouraged Missourians to nominate well-qualified candidates for judicial openings. The commission determines which candidates it will interview. The names of each person to be interviewed and the interviews themselves are now open to the public. Within 72 hours of submitting the names of the commission’s choice of the three most qualified persons to the govenor, the applications of those three candidates are also made public, after personal and confidential information is redacted. The commission also releases the number of commissioners who supported each of the three candidates.
Circuit Courts of Jackson County, the City of St. Louis, St. Louis County,Clay County, Platte County and Greene County: A five member commission:
1. The Chief Judge of the District of the Court of Appeals in which the Circuit is situated;
2. Two members of The Missouri Bar elected by the members of The Missouri Bar residing in the judicial circuit;
3. Two lay persons residing in the circuit appointed by the governor in place at the time the appointment becomes due.
Each circuit has its own commission. All else described above under The Supreme Court and Appellate Judicial Commission applies to each Circuit Judicial Commission.
Appointment by the Governor
The governor has 60 days in which to appoint one of the three names submitted by a judicial commission. If the governor does not act in 60 days, the judicial commission that submitted the three names to the governor is required to appoint one of the three nominees.
Vote of the Citizens of Missouri
Each judge appointed according to The Missouri Plan must be retained by the citizens of Missouri. For Supreme Court judges, this involves all citizens in the state. For the Court of Appeals, this involves the citizens in the judge's appellate district. For circuit judges, this vote is by the citizens in his or her judicial circuit.
Judges appointed through to The Missouri Plan must be retained by voters in the first general election after the judge has served one year in office. Voters are asked to vote "yes" or "no" to the question "Shall Judge __________ be retained in office?" A majority of voters in the relevant judicial area must vote for the judge to be retained or the judge's term expires on December 31 of the election year.
Thereafter, all judges appointed through The Missouri Plan must be retained by the citizens of their respective judicial areas at the end of each of their terms in office. If the judge is not retained, then the judge cannot succeed himself or herself (remain in office). Supreme Court and Appellate Court judges serve 12 year terms. Circuit judges serve six year terms. Associate Circuit Judges serve four year terms.
Other Missouri State Judges
All other Missouri state judicial circuits elect their judges by partisan election.
I. How many judges are elected in Missouri?
There are 373 state judges; All Appellate Court judges are selected through The Missouri Plan (Supreme Court = 7; Court of Appeals = 32); Circuit Court judges and Associate Circuit Court judges in St. Louis City, St. Louis County, Jackson County, Clay County, Platte County and Green County (69 Circuit judges and 35 Associate Circuit Judges) are selected through The Missouri Plan; The remaining Circuit Court judges (72) and Associate Circuit judges (158) are elected in partisan elections.
So the short answers to the number and percentage of judges elected in partisan elections in Missouri is:
Supreme Court: 0 = 0% Appellate Court: 0 = 0%Circuit Court: 72 = 51% Associate Circuit: 158 = 82%
II. Why are some judges elected and some are not?
There is probably no single reason for this. The purpose of The Missouri Plan, however, serves as the best guide for why it was initially adopted for certain courts and why the plan has subsequently been adopted by some counties, but not others. The Missouri Plan is designed to select judges based upon merit; i.e., the candidates with the qualities we want to have in a judge rather than selection through politics. By politics, I mean the most campaign money, or the most promises to rule in favor of certain people, or knowing the right people or the most promises to rule in a certain way, or judges who must favor members of some political party or some big money donors.
III. Where would you expect such political influences to be the most likely?
In large metropolitan areas, or large geographical areas, with large populations where the candidates for judge are not personally known to the voters and campaigns cost a lot of money; or In rural areas, or small geographical areas, with small populations where voters personally know the candidate for judge, or know someone who does know the candidate for judge and campaigns are cheap.
History has shown that it is more likely that costly elections, political influence and strains on the impartiality of judges are most likely to occur where a lot of money must be spent to influence a large number of people to vote for a person they only know through the media outlets or brief encounters.
It is not surprising then that when The Missouri Plan was first adopted, the judges for large geographical areas containing many people (The Missouri Supreme Court and the Missouri Appellate Court) and the judges in the largest metropolitan areas (Kansas City and St. Louis) were covered by The Missouri Plan. Nor is it surprising that as populations have increased in some counties, such as Green County, the counties have decided to adopt The Missouri Plan.
It must be remembered that not every county in Missouri has a circuit judge that is exclusive to that county, nor do all counties have the same number of circuit judges. Some counties, such as Jackson County, have many circuit judges. Other counties, such as Ozark County, share a circuit judge with other counties. Every county, however, has at least one associate circuit judge. Thus, as can be seen by the percentages of elected judges discussed above, most "rural" counties elect their judges and the areas with the largest populations select their judges through The Missouri Plan.
IV. Popular Election Works for Governors and Members of the Legislature, So Why Not Elect Judges?The short answer is because, as citizens, we want our governor and representatives to be partisan, but we do not want our judges to be partisan. When we vote for our governor or our representative, we want to elect persons who feel as we do on such things as social or economic issues. We want to elect people to advance our goals when they get into office and to enact laws or policies that will do such things as lower taxes or legalize gay marriage, goals that are favored by some voters but not others. Each group wants to elect good advocates and good players.
When we select judges, we want people who will be good umpires not players. We want people who will set aside any feelings they have about who should or who should not win. We want people who will apply the rules that we made as a people through our constitution, or that our elected representatives made through laws, or that our governors made through executive policies. When any of these rules conflict, we want judges who will say that the people win, and that our most direct voice, the constitution wins.
When we begin to select judges on the basis of who they like or who they know rather than what they know and how fair they are, then we risk not being treated fairly in court. We risk that the rules will not be followed.
The longer answer requires a look at the political process:
When there is no screening for who can be a judge, then unqualified persons can become judges. It may sound idealistically wonderful to say that anyone can be a judge, but as a practical matter do we really want anyone to be able to judge the fate of our business or our children, or our life? Do we want a person who just graduated from law school last month? Do we want a person who has been unable to practice law properly? Do we want a person who is lazy? We say this could never happen, but it already has. We can all also think of analogous situations in the election of public officials that are not judges.
When judges must raise large amounts of money to run for office, there is a danger of improper influence on the decisions of a judge and a certainty that citizens will worry that the judge is prejudiced. The cost of campaigning to be a judge for the Supreme Courts in states that elect judges has risen dramatically in the last decade. Candidates for the Supreme Courts of states like Illinois and Texas must raise a million dollars or more. Trial court judges of large cities in these states must also raise hundreds of thousands, if not millions of dollars. The obvious questions are:
If you have a case before a judge, would you rather the lawyer against you had given money to elect the judge or not? If you have a case before a judge, would you rather the company or person against you had given money to elect the judge or not? If you answered these questions that you would rather your opposition had not given money to the judge, then why do you feel that way?
When people do not know the candidates for judge, except through the election campaign, then the election campaign degenerates into attacks on the opposing candidate and creates the danger that citizens will have no faith in the judge elected or in the judicial system.
Recent campaigns in Illinois have been particularly demonstrative of this. Candidates have attacked each other as incompetent, prejudiced and immoral. It would be nice if candidates for judges in large geographical or large population areas would campaign on the legal ability and scholastic records of their opponents. Instead, campaigns move to denigrating the opposition, and in the end the public must question if the person elected can truly be fair to them or if the judicial system is prejudiced in favor of someone or some group.
V. The federal system works for the United States and has for over 200 years. Why can't it work for us in Missouri?First, because The Missouri Plan of merit selection works better for the citizens of Missouri in selecting their state judges. Second, Missouri already tried the federal system, rejected it, and never went back, because the citizens recognized that The Missouri Plan was a better system for the selection of state of judges.
The federal system puts the selection of candidates for a judicial position entirely within the hands of the chief executive, the president. Thus, if the federal system were adopted in Missouri, whoever was governor at the time a judicial position became available would choose the person who would be the judge. In Missouri, we put this decision in the hands of a commission of citizens, lawyers and a judge, who evaluate the merits of candidates to be a judge. The federal system requires the person chosen by the president/Ggovernor to be approved by the Senate. In Missouri, we, again, put this in the hands of the commission made up of citizens, lawyers and a judge. The commission is less subject to political pressures than the Senate, and, in fact, is specifically charged to be non-political.
The federal system appoints judges for life with no direct input from the citizens. Missouri gives citizens a direct vote to approve both the appointment of the judge (after one year in office) and the retention of a judge (after expiration of each term). This citizen participation is important to the citizens of Missouri.
In 1940, 1942 and 1944, after lengthy experience with the federal appointment system, and the direct election of judges, and after much reflection and debate, Missouri's citizens and Missouri's Constitutional Convention representatives chose The Missouri Plan over the federal system. It was a wise decision. Since the adoption of The Missouri Plan in 1940, no judge selected through The Missouri Plan has been removed for misconduct or incompetence. Only twice has a judge selected through The Missouri Plan been voted out of office by the citizens of Missouri. These results demonstrate that The Missouri Plan is placing qualified, even-handed persons in judicial positions.
VI. I hear that the commissions are controlled by lawyers. Why don't we have more non-lawyer members?First, changing The Missouri Plan to add non-lawyer members is not as easy as it sounds and could result in a radical alteration of The Missouri Plan. Second, the plan is designed to reduce politics in the selection of judges in favor of selection of judges on the basis of merit. Adding another person appointed by the governor could introduce more politics into the selection process. The Missouri Plan was adopted as a part of Missouri's Constitution. Consequently, to change the makeup of the commission which selects candidates for judgeships would require an amendment to Missouri's Constitution. Amendments can only be done by an initiative petition from the citizens or by an amendment passed by a majority of the houses of Missouri's legislature with submission to the public for approval by majority vote. In either process, there is a danger that more changes to The Missouri Plan would be proposed than the mere adding of another member of a judicial commission. Because the plan has worked so well, radical changes would be dangerous.
The commissions are designed to give input into the selection of judges to the executive branch (the governor), the judicial branch (a judge) and the legal community (lawyers), who are seen as in the best position to evaluate the legal abilities and judicial temperament of candidates. The Missouri Plan has an equal number of members of the legal community and citizens appointed by the governor. The judge, although a lawyer, brings a different perspective and a different responsibility to the commission than the lawyer members; i.e., the perception of a sitting judge, aware of the qualities needed by any judge as a result of his or her existing experience as a judge. Governors appoint persons to the commission who identify with the governor's political party and the goals of that party. If another gubernatorial appointee were placed on a commission, the appointees of governors would hold half of the votes on any commission, thus effectively giving the executive branch, and the politics of the executive branch, too much influence in the selection of judicial candidates.
VII. I hear the commissions are controlled by plaintiffs' attorneys, who select judges who are favorable to personal injury lawyers. Is this true?No. The lawyers on any judicial commission are elected by all of the lawyers within that commission's jurisdiction. Empirically, there are as many "defense" lawyers as "plaintiffs'" lawyers in any jurisdiction, because any case before a judge has a lawyer on each side. More importantly, lawyers know that prejudiced judges are a problem to them, because a prejudiced judge might not treat them fairly. Consequently, lawyers try to elect lawyers to the commission who they believe will select impartial judges. The lawyers want a level playing field, if for no other reason, because they know that if the field is not level than at some point in time they may be on the wrong side.
This desire to elect lawyers to the commission who are trusted to pick the most impartial and qualified judges is demonstrated by the fact that many times a single lawyer running for a commission position is endorsed by both the primary "defense" lawyer organization in Missouri (Missouri Organization of Defense Lawyers) and the primary "plaintiffs'" lawyer organization in Missouri (Missouri Association of Trial Attorneys). The Missouri Bar itself does not endorse any candidate for any judicial commission.
VIII. Why can't everything that happens in the commission that chooses candidates for a judge be open to the public?The choice of a candidate to be a judge is a personal decision. We want the most candid discussions possible by the members of the judicial commission when considering an applicant for a judicial position while protecting an applicant’s personal privacy, but we also want a process that is transparent enough to provide the public a clear view of the process. This is a difficult choice.
In late 2009, the Supreme Court amended the rules of the judicial commissions to release more information on judicial applicants because the Supreme Court thought, on balance, it was in the public interest to know the names of all judicial applicants. By the current rules, the public knows the names of every judicial applicant and is able to view the application information of the three candidates submitted to the governor.
IX. I don't know anything about the judges who are asking to be retained. How can I find out anything out about these judges?Before every election in which a judge asks to be retained, a commission made up of an equal number of lawyers and non-lawyer citizens gather information on the judge. Evaluations of the judge by members of juries who were in cases before the judge, evaluations of the judge by lawyers who practice before the judge and writing samples are examined. All of this is discussed by the commission, and the commission then prepares a report on whether or not the judge should be retained. These reports and evaluations by the commissions can be viewed at www.mobar.org.
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Paid for by The Missouri Bar Sebrina Barrett, Executive Director PO Box 119 Jefferson City, MO 65102