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Once we had a King: George III. We did not like him very well and, after a brief war, ran him off. Afterward, we concluded that splitting up the powers of government was the only way to keep another “George” from assuming too much control again. So we separated the powers of government into the legislative, executive and judicial branches to keep any one of them from dominating us. We recognized the value in pitting competing interests against one another to control what government does. Disperse power; never concentrate it. Turn government on itself so it cannot turn on the people.
Now hold these thoughts for a minute.
Once, in Missouri’s early years as a state, the governor had the right to appoint all judges. That lasted less than 30 years before the public grew tired of patronage courts and threw out that plan.
Next, we tried electing appellate judges. By 1937, big money and special interests controlled judicial elections. Who paid for an election – rather than the law – controlled the outcome of lawsuits. At one point, we had a pharmacist on the Supreme Court. The system worked well for the few who owned it. Finally, in the 1940s, business leaders, lawyers and citizens rose up and threw this system out. The result of this hard-fought battle was the Non-Partisan Court Plan (NPCP).
Since then, the Missouri NPCP has provided qualified appellate judges dedicated to the law, and not to a specific political agenda. It has been called Missouri’s “gift to the nation.” Nearly two-thirds of the rest of the states have adopted it in some form.
In November, Missourians will vote on a proposed change to the Non-Partisan Court Plan. Amendment 3 would change the machinery of the selection process.
How does the current plan compare to the proposed change?
First, here’s a refresher on the existing plan. A Supreme Court judge, three lawyers (one each from the eastern, western and southern districts of the Court of Appeals) and three lay people appointed by the governor sit on the appellate nominating commission. Lay representatives hold staggered terms of six years each, meaning only a two-term governor is able to appoint all three.1 The lawyers on the commission are also elected (by their peers) and have staggered terms. Power is dispersed among interests that differ by region, by profession, by specialty and, most importantly, by the politics of the time they are elected or appointed.
Any lawyer can apply to this commission to be an appellate judge. The nominating commission interviews and selects three candidates. The interviews are open to the public. The governor makes the final choice and the public gets to regularly vote on whether to retain the governor’s pick.
What would Amendment 3 do? Among other things, it would remove the Supreme Court judge and give the governor four appointments to the seven-person panel. These four appointments could all be lawyers or lay people. Laymen no longer have reserved or dedicated positions.
The key element of the proposed amendment, though, is that the governor can make his four picks in his first term; the appointments are no longer really staggered. The executive gets immediate control of the panel charged with providing him nominees.
So, who wins?
Clearly, the governor wins, because he or she gets control of the nominating panel. Most executives would no doubt want someone “qualified,” but the definition of “qualified” is likely to include a much heavier dose of political reimbursement and agenda, whether liberal or conservative.
This change concentrates the power of the judiciary in the executive branch since the governor has absolute control over who becomes an appellate judge. We tried something less extreme than this before in Missouri and did not like the patronage system that resulted. Ironically, our current governor never asked for or encouraged this change.
Certainly, the judicial branch is weakened. Politics becomes much more central to judicial appointments. Whoever the governor wants, he (or she) gets, irrespective of the candidate’s dedication to fairness and impartiality. Of course, governors come and go; today’s conservative gives way to tomorrow’s liberal. A modern society and economy, though, require a judiciary that abides by our social mores as written into law – not one subject to the political whims of transient governors.
The legislative branch also loses. Legislatures are in constant conflict with the executive branch: budgets, legislation, and appointments of all sorts come to mind. Executives now will have complete control of judicial appointments, meaning they become bargaining tools in political negotiations. And, governors will control the forum, i.e. the courts, for resolving disputes with the legislature. The executive will own the referees.
But the biggest loser will be the public, particularly business interests, since this change would revert justice to the “who you know” standard. Money and politics are inextricably intertwined. Those who have the money and consequential ear of the executive will greatly influence who becomes a judge. Ability and impartiality will take a back seat to political expediency. The public, particularly businesses – who are the biggest users of the courts – will not get courts staffed with the best judges, just the most political ones.
Remember, we gave moneyed interests this much influence once before, and it did not turn out well. Amendment 3 does not facilitate the key purpose of judicial selection: staffing the courts with fair and unbiased judges.
My parents' generation is called “the greatest” not because of what they were, but because of what they did. Their sacrifices created our world.
Those who created the NPCP likewise stood up to great difficulty. We admire their effort, their perseverance, and their dedication. Their sacrifice created our judicial system.
Now you and I are called on in difficult times. Outside East Coast money is pouring into the state to buy awful, misleading advertising and professional political operatives to stoke the fires of fear and prejudice. Why us? Why here? It is called “The Missouri Plan” nationwide for a reason: We adopted it first. We are the vanguard. We are the heart of the concept. Kill the plan here, and it dies everywhere.
We do not have a significant largess, nor will we sell fear-mongering. What we do have on our side is the wisdom of separation of powers and the historical knowledge that what Amendment 3 proposes will lead to bad results. We have seen these dogs before. They will not hunt.
Stand with me in this fight. We stand to keep the judicial system from becoming a political weapon for moneyed interests. Judges should be referees, not combatants for any cause except the rule of law.
Go find a forum at which to speak out: Rotary, the Chamber of Commerce, your church. Donate to Missourians for Fair and Impartial Courts (MFICC), the clearinghouse for the opposition. Send out a letter on your stationery to your clients telling them to vote no on Amendment 3. MFICC will even give you a form letter to use.
We resist this change not just because we are lawyers, but because we are Missourians. The NPCP belongs to the people of Missouri; we should not let special interests from out-of-state with big money steal it. Let history judge us worthy of this noble cause.
Let’s not repeat ideas that did not work before.
Stand with me.
1 When originally adopted, governors were limited to one term and no governor could ever appoint all of the lay people to the commission. When governors were authorized to run for a second term, they acquired the potential of appointing all of the lay representatives to the panel.
The new president normally writes a column about his or her plans for their term. Because of its importance, Amendment 3 replaced that traditional topic in my main article. However, you should know that we have a number of new and ongoing projects that may interest you. Here is a brief listing of the major objectives we have:
1. Defeat Amendment 3.
2. Pass The Missouri Bar-sponsored Criminal Code revisions. Last year, the Criminal Law Committee presented the Board of Governors with the results of four years of hard work spent revising and updating the state’s Criminal Code. The proposed revisions were introduced before the General Assembly last year, studied by the legislature during the break, and will be introduced again during the coming legislative session.
3. Start and finish a building addition at The Missouri Bar Center. The Missouri Bar has outgrown its current facilities, which are currently scattered over several buildings on one block. The owner of the Bar Center, the Trustees of The Missouri Bar, has agreed to add a new floor to the original headquarters building to provide space for the staging of CLE programs, meetings, and gatherings of bar members. No money from dues dollars will be used for this project. Current plans are to start, finish and occupy the new space within the next 12 months.
4. Draft and file legislation changing how we draw legislative districts. At its summer meeting, the Board of Governors authorized the appointment of a special committee to recommend a constitutional change regarding legislative redistricting. The committee has been appointed, is scheduled to meet, and will produce a report by year’s end. Hats off to former Missouri Bar President H.A. “Skip” Walther for agreeing to chair this fast-tracked proposal.
5. Build a Key Person Network. We are building a key person network throughout the state. Our goal is to identify person(s) with close relationships to each state legislator, so that when issues arise relating to the administration of justice, we have contacts who will carry our message to the House and Senate. We are looking for volunteers. We will not ask you to advocate for controversial issues, such as tort reform. Rather, we will use this network for items we, as lawyers, collectively agree affect the general administration of justice. There are 30,000 of us. We are community leaders. We need a significant presence in the legislature. If you want to volunteer, please call Catherine Barrie at 573-635-4128.
Of course, we will continue already started efforts concerning pro bono work, adequate funding for the criminal justice system, and many, many others. One new item is a committee on aging lawyers. As the Baby Boomers age, a large number will face serious retirement issues. The Missouri Bar is coordinating resources to be ready for the coming crunch of retirements and the consequential issues.
We are always open to new ideas about how to better serve you. Please feel free to call me at (816) 229-9111 or e-mail me (Pat@starkelawoffices.com) if you would like to visit.
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Paid for by The Missouri Bar Sebrina Barrett, Executive Director PO Box 119 Jefferson City, MO 65102