Wednesday, October 31, 2007

Missouri Plan, Wedge Issues, and "Someone's Gonna Get Their Eye Put Out"

As written here before, the Republican efforts to undermine the Missouri Plan are simply the latest cynical attempt by political insiders like Jeff Roe to create a wedge issue. Informed, thoughtful voters on both sides of the aisle recognize that further injecting electoral politics into judicial selection will undermine the independence of the judiciary, to the disservice of all. But certain political insiders care less about the damage done to the state's legal system than they do about driving mobs of misinformed Neanderthals to the polls intent on driving out the "activist judges".

Whenever the rough-housing among her six children would begin getting rough, my mother would warn, "It's all fun and games until someone gets their eye put out." It was her wise way of encouraging us to look down the road and see how escalation of nudges to pushes to shoves to pokes was going to lead to an all-out donnybrook. As the youngest boy, I learned to appreciate the warning, since I usually came out the worst for the wear.

Folks, wedge issues are all fun and games until someone gets their eye put out. I understand that those of us who enjoy politics enjoy the prospect of a good wedge issue. I'll agree that the point of the minimum wage issue on the ballot in 2006 was only partially about raising hourly rates for workers - it was also about portraying the Republicans as heartless class warriors keeping the little guy down. Similarly, only a few of the originators of the gay marriage amendment in 2004 really cared about gay marriage - it was mostly about getting fearful conservatives to the polls.

Some people came out of these earlier scrapes with some bruises, but no eyes were put out. Fast-food restaurants have managed to avoid the economic apocalypse they feared, and the gay community lost a right it never had in Missouri.

But this time the inter-party rough-housing is threatening to put out an eye. We've had a judicial selection process that has worked for decades, through Republican governors and Democratic governors. It was good enough for Governors Carnahan and Teasdale, and it was good enough for Governors Bond and Ashcroft. We don't have nasty, expensive campaigns funded by trial lawyers and insurance companies for Supreme Court judges, the way they do in some other states, and we don't want them.

Yesterday, I received the following press release from a group dedicated to preserving the Missouri Plan. I'm reprinting it in its entirety, because I think it's an important issue that all Missourians need to pay close attention to.
Coalition Names Six Former Chiefs as Honorary Co-chairs as List of Member Organizations Continues to Grow
Tuesday, October 30, 2007

JEFFERSON CITY — Following a summer fraught with criticism of the method by which a slot on Missouri’s Supreme Court would be filled, six former chief justices of the Court have joined an organization formed to protect Missouri’s nonpartisan court plan and preserve the independence of the judiciary.

“Having served as chair of the Appellate Judicial Commission during my tenure as chief justice, I know the plan works to keep politics out of the judicial selection process,” said John Holstein in agreeing to support Missourians for Fair and Impartial Courts. “It troubles me that there are forces at work intent on injecting politics back into the process.”
Holstein, an appointee of Gov. John Ashcroft who served on the high court from 1989 through 2002 and as chief justice from 1995-97, joins five other former chief justices who have agreed to serve as honorary co-chairs for Missourians for Fair and Impartial Courts.
The other co-chairs:

* The Honorable Jack Bardgett – appointed by Gov. Warren Hearnes (D), served as chief justice from 1979-81.
* The Honorable Ann Covington, appointed by Gov. Ashcroft (R), served as chief justice from 1993-95.
* The Honorable Andrew Jackson Higgins, appointed by Gov. Joe Teasdale (D), served as chief justice from 1985-87.
* The Honorable Edward “Chip” Robertson, appointed by Gov. Ashcroft (R), served as chief justice from 1991-93.
* The Honorable Ronnie White, appointed by Gov. Mel Carnahan (D), served as chief justice from 2003-05.

“As former chief justices of the Missouri Supreme Court, we believe that Missourians depend on fair and impartial courts to provide stable and rational resolution of disputes, protect property and economic interests, and, when needed, protect people from the overreaching of government,” said Covington, the first woman to hold the position of chief justice on the court.

Through their involvement with Missourians for Fair and Impartial Courts, the former chiefs will advocate for Missouri’s courts to remain accountable to the constitution and the laws of the state — not political pressure and special interests. For nearly 70 years, Missouri has been a model for the nation, creating a nonpartisan method for selecting judges that nominates judicial candidates based not on political party affiliation, but on merit. They are devoted to protecting Missouri courts from attacks by a small group of politicians and special interest groups.

“Unfortunately, Missouri’s highly respected nonpartisan court plan is under attack by special interests who believe that some other process – some politically-driven process – would produce judges of the same quality that now serve Missouri’s citizens as the final arbiters of the law,” said White, who retired from the court in July. “Justice should be fair and impartial. The Missouri Nonpartisan Court Plan should be preserved to protect our individual rights.”

As the six former court chiefs join forces with Missourians for Fair and Impartial Courts, membership in the broad-based coalition continues to grow, including nearly 40 business, education, religious, professional and consumer groups such as AARP Missouri, Missouri National Education Association, Committee for Economic Development and the Missouri Municipal League, in addition to a number of legal organizations.

“Our diverse membership proves that this isn’t an issue that matters only to attorneys and judges,” said Landon Rowland, Committee for Economic Development trustee. “Our system of judicial selection seeks the best qualified judges while maximizing independence and still allows a degree of direct accountability to Missourians.

“There’s a reason so many other state governments have adopted parts of the Missouri Plan – because it works.

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Blogger whistleblower said...

The Missouri Plan has been in use since 1945. More than half of the states in the Union adopted the Plan. However, only about five of those states have not subsequently made significant changes to it.

The Missouri Bar is working overtime to maintain the status quo. That should cause everyone to raise an eyebrow. They have created talking points so that their members, all Missouri attorneys, can help them to keep the Missouri Plan just the way they like it. I would have thought the educated jurists of the Missouri Bar would have been able to come up with their own reasons to support the Missouri Plan. It appears that the Missouri Bar has a Plan of their own.

While I agree that the election of judges would induce a flavor of partisanship into our courts that must be avoided; the Missouri Plan is not without acknowledged flaws.

Retention elections, one part of the Missouri Plan, are a farce. In 2004, Judge Richard B. Teitleman, was retained by a 62% of Missouri Voters. Depending on where you live, you would have also been voting to retain other appellate judges; Clifford H. Ahrens, Katherine Knaup Crane, Patricia Cohen, Booker Shaw and Glenn Norton were retained in the Eastern District, John Parish, James Prewitt and Kenneth Shrum were retained in the Southern District, and Patricia Breckenridge and Michael Spinden were retained in the Western district. All of these judges were retained by at least 62% of the voters.

How many of these voters knew anything about the judges that they voted to retain?
2.7 Million Missouri voters cast their vote in the to decide who the next governor would be. 2.2 million voters decided whether or not to retain Judge Teitelman on the Missouri Supreme Court. Of these 2.2 million voters, how many could cite one opinion written by Judge Teitelman?

The voters don’t have enough information about the judges when they cast their vote to make an informed decision. The lack of credible means of evaluation of appellate judges only serves to compound this sham. Merit retention is a farce and will necessarily remain so in the absence of reliable evaluation of performance. The Missouri Bar does publicize a report prior to elections. Why doesn’t an independent agency do the polling and provide the information about judges prior to retention elections? The only reasonable answer is that the Missouri Bar wants to have the most influence over your vote.

What the Missouri Bar doesn’t want to tell the voters, is that the Missouri Plan has changed since its inception and the Courts, that they claim are fair, changed the plan without voter input. The Missouri Plan was a constitutional amendment, approved by a majority of Missouri voters. In 1987, the Missouri Supreme Court created Rule 12.21. This rule significantly changed the information available to voters about judges. 12.21(a) states; “Except as otherwise provided in this Rule 12.21, all papers filed in proceedings before the Commission shall be confidential unless and until the Commission files a recommendation with this Court that the judge, member of a judicial commission, or member of this Commission be retired, removed, or disciplined.”

To understand the full impact of this Rule, you need to know a little about the “Commission” referred to in the Rule. This commission, known as the Commission for the Retirement, Removal and Discipline of Judges, is a super-secret entity, made up of two judges, two attorneys, and two lay persons (appointed by the Governor). Four, out of the six members, must agree to pursue a formal investigation of a complaint about a judge, before the complaint is made public. This is much like having a commission to discipline a quarterback, which is made up of two quarterbacks, two football players, and two cheerleaders. If the football players want to make the complaint go away, they can; and the cheerleaders cannot say a word about it.

You can read more about this Commission in an article written by Lynn Ann Vogel, former President of the Bar Association of Metropolitan Saint Louis, on page 2 of the Saint Louis Bar Journal. After reading the article, you’ll know why even some judges refer to the Commission as CRUD.

I think the Missouri Bar is launching this attack against those that propose a change to the Missouri Plan in order to maintain the control they currently have over judges, the placement of judges, and the retention of judges. Who would have the most consistent need to control the judges? The attorneys that make their income by appearing in front of these judges.

Everyone should take notice of the fact that the Missouri Bar is not fighting against a particular modification to the Missouri Plan. They just don’t want to lose the influence they currently have over the process; be it the appointment process, or the sham retention elections. Whenever a group fights so hard against a change that has yet to be identified, you must question the motive.

One final remark. The Missouri Plan uses a Judicial Selection Committee. Judge Ronald Hollinger was one of the judges nominated for the position on the Missouri Supreme Court this last summer by this committee. If you take the time to read his opinion on case # WD64472, (link provided below) you will see that Judge Hollinger not only read, but concurred with, a previous Western District opinion that not only nullified the constitutional wishes of Missouri voters, but decided that the law is not only what the Missouri Supreme Court says it is, but that the law is also what the Missouri Supreme Court failed to say it is. If Judge Hollinger is a demonstration of what the Judicial Selection Committee considers to be a judge that is right for Missouri; we are all well on our way to living under the rule of the court, rather than the will of the people.,WD64472

10/31/2007 10:44 AM  
Anonymous Anonymous said...

Dan - isn't Whistleblower the guy you suggested that we simply ignore? Isn't he the same guy who thought you were faking your concern about your daughter in order to knock right-wingers?

10/31/2007 11:28 AM  

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