Monday, December 17, 2007

The Complete Honest Truth About the Missouri Plan

I had a friendly conversation with a journalist a while back, and the topic briefly turned to the Missouri Plan. "Can't you make the Missouri Plan interesting?", I asked her. She shook her head no.

Today, I had an email exchange with a journalist who covers the courts, and his confusion about the Missouri plan was as complete as it could be, but it was innocent confusion. He really didn't understand some of the basic points, and, in his confusion, he had some very flawed perceptions.

What follows is my attempt to lay it all out. If the topic bores you, skip this post. It's not a particularly fun topic, and any honest analysis, as this one will be, cannot help but be complex and qualified. I'm not going to make strident points or state my opinions more forcefully than they deserve solely to win rhetorical points.

And I'm not going to allow comments on this one post. If you have honest questions or you want clarification on something, email me and I will do my best to respond. If you find a factual error, please email me and I will make any necessary correction. But I'm not going to allow half-baked conspiracy theorists or unstable, misguided souls to turn this into a cacophony of lies and half-truths. If you disagree with some of my conclusions or opinions, I wish you the best in finding another soapbox.

What is the Missouri Plan for Judicial Selection?

The Missouri Plan is a system for selection of judges and deciding whether they should hold onto their offices. Some call it the Missouri Non-Partisan Court Plan, but I prefer the simpler and less confusing "Missouri Plan", as there is plenty of partisanship in any system of judicial selection. Missouri has three levels of state courts - the trial courts (Circuit Courts), the Appellate Courts (divided into 3 districts), and the Supreme Court.

The Trial Courts: Most trial judges in Missouri are elected. They participate in regular elections, with campaign signs and the whole kit and kaboodle. But, because they are only judges for a particular circuit (usually 2 or 3 counties - it depends on population), the campaigns are relatively modest affairs. You don't see massive TV budgets or major campaign contributions. Many, or most, local lawyers donate to both sides in a close race.

It's important to recall that there are a lot of other judges in Missouri that are not part of the Missouri Plan. Federal judges make a lot of headlines, but they get appointed under the Federal system, with its Senate approval process. Federal judges get lifetime appointments, and face no retention elections. There are also municipal judges - employed by municipalities to handle traffic tickets and ordinance violations. The systems for choosing them vary widely - the Kansas City judge who got caught taking loans from lawyers was not a Missouri Plan judge.

In St. Louis City and Jackson, Platte, Clay and St. Louis Counties, the judges are chosen through the Missouri Plan. The last three listed changed to the Missouri Plan in the 1970s, when the voters chose to forego elections. In each of the Missouri Plan circuits, judicial nominations are made commissions composed of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers elected by the bar and two citizens selected by the governor. Thus, three of the panelists (the appellate judge and the citizens) are chosen by governors at one point or another, and two are selected by lawyers.

Appellate Courts:
There are three Courts of Appeals in Missouri. One covers the Eastern and Northeastern counties and normally meets in St. Louis, one covers the Western and Northwestern counties and normally meets in Kansas City, and one covers the Southern part of the state, and normally meets in Springfield. Appellate judges don't try cases - they read briefs, listen to oral arguments, and write opinions.

The Supreme Court is the highest court in Missouri. Most of its work is reviewing cases where the one of the Appellate Courts has already made a decision. If the Appellate Court was way out of line with its decision, or if the Appellate Courts issue differing rulings on the same issue, then the Supreme Court might choose to take a case and issue a ruling.

The nominations for the Courts of Appeals and the Supreme Court are made by a commission composed of three lawyers elected by lawyers, three citizens selected by the governor, and the chief justice, who serves as chair. Each of the geographic districts of the Court of Appeals must be represented by one lawyer and one citizen member on the Appellate Judicial Commission. The elections for the lawyers are low-key affairs, with most of the campaigning taking the form of simple letters written by the candidate or his or her supporters and mailed to lawyers in the district. There's not any fundraising or aggressive campaigning - the lawyers elected are generally people who have built up a good name among their fellow attorneys. I've never seen a lawyer mention a party affiliation in his or her mailings.

Each of the commissions comes up with a panel of three nominees, and the governor gets to choose one of them (if he doesn't, the commission gets to do it). The commission is where a lot of the magic happens. I wish I could claim that the commission makes its choices solely on merit, regardless of polltics or influence, but that would be a lie.

If it's not all merit, what else is there? Well, part of it is definitely political connections. But it's kind of funny - you don't want to be too political. 95% of the time, it's best to be someone who's worked on a few campaigns in the background, but nobody too controversial. You want to be the sort of person that, should you make the panel of three that gets submitted to the governor, you'll have a few friends who are well-connected to the governor call or write the governor on your behalf. But you don't want to be the kind of person that, should the governor select you, he will be making enemies, or creating the appearance that he has appointed a political hack.

I don't want to understate the good faith of the governors, either - including the current governors. A judicial appointment is likely to be on the bench a good long time, long after the Governor will have left office. You want to appoint people who reflect your values and will do so ably. A half-wit party hack doesn't fit that description, so governors do seek people they sincerely believe are qualified and able to persuade others that their rulings are correct.

What is the Missouri Plan for Judicial Retention?

This is pretty simple. At the first election after a newly appointed judge has served a year, s/he is put on a ballot for a simple yes or no retention. They don't have opponents, and they aren't listed by party. If they win a majority, and I don't believe anyone has lost an initial retention election, they get a full term before facing another retention election. Supreme Court and Appellate Court judges have 12 year terms, and Circuit Court (trial) judges have 6 year terms.

These are pretty bare-bones elections. Judges are bound by a judicial ethics to NOT do a lot of typical campaigning, but, on the other hand, they don't have much need to do so when they aren't facing an opponent.

The Missouri Bar and League of Women Voters distribute voter guides before retention elections, including evaluations of judges on the basis of things like fairness, legal analysis skills, diligence and decisiveness. Lawyers and jurors do the evaluations, and they often have some surprising results. I know that the judges study their results carefully, and often use them as a kind of job evaluation to identify their perceived weaknesses.

How Well Does the Selection System Work?

In my opinion, we have a fantastic bench in Missouri, and much of that is due to the Missouri Plan. I say that as someone who knows a lot of judges, has some experience in the courtroom and appellate courts, and no longer appears before judges, so I don't have a lot of incentive to pull my punches. (I should point out I've appeared in front of good elected judges in Missouri, but I've always been underwhelmed by the elected judges in other states, where the elections are high-financed affairs.)

The strength of the bench is not a figment of my Democratic leanings, either. Back when I was a young lawyer, the Missouri Supreme Court was 100% composed of appointments by John Ashcroft, and I never heard (or made) a peep complaining that we needed to change our judicial appointment system. Ray Price, as Republican a man as I have ever met, remains one of my favorite people I have ever known to put on the black robes. Judge Ann Covington was wonderful. Judge Elwood Thomas may have been the best judge in the history of the state, though sad fate prevented him from proving it. The only person I thought at the time was a weak pick on the Court, Chip Robertson, turned out to be a fine judge.

At the trial and appellate level, there have been several judges that I thought should not have been appointed. In a couple cases, my original perception remains. There are a couple judges who I think have too much of a plaintiff's orientation, and a couple I think have too much of a defendant's bias. But, despite those instances, I always felt 100% confident that the judges were playing things straight. There's never a sense in Missouri courts that "the fix is in".

How Well Does the Missouri Plan Retention System Work?

As written here before, the retention system works, though it might not feel like a "real election". I saw Judge Hutcherson get knocked off when it was deserved. Frankly, I haven't seen any other judges that deserved to lose. The selection process works, so the retention process shouldn't be generating a whole lot of heat and controversy. I heard Chip Robertson point out that the only baseball umpire that most Missourians can remember is Don Denkinger - the good umpires, like good judges, don't generate a lot of attention for themselves.

Which also raises another important factor for judges - the necessity of making unpopular decisions makes them susceptible to unfair election pressures. If you are unfairly accused of a crime, do you want to face a judge who wants to make "tough on crime" his or her campaign slogan? Similarly, is it fair to ask a judge to throw out a coerced confession in a rape case if s/he is going to be up for an election a month? Justice is not always popular, and elevating popularity as a qualification for judges in our cities will not serve the public interest.

What are the Alternatives?

That's part of the problem - the Republicans are playing hide and seek with their plans. Some advocate for more elections, some want "advice and consent" of the legislature, and some want to give the governor more opportunity to stack the commission. It's impossible for me to fairly address the benefits and weaknesses of any specific plan with any specificity.

One common thread, though, is that all the proposals I've seen increase the influence of political parties and money on the process. While that's an accepted part of the process for the other two branches, the judicial system is different. The judicial system relies on the perception of fairness to justify its existence. We accept and expect partisanship in our state house and governor's mansion, but it is anathema to the Courthouse.


The Missouri Plan works well as a means of selecting and retaining judges. It has served our citizens through the time of the Ascroft court and it continues to serve today. The agitation for change to the plan does not arise from any dissatisfaction with the judges on our bench. Republicans don't really want to see Judge Coe in Kansas City. But I believe that a minority of Republicans think that they can drive some uninformed voters to the polls to vote against "activist judges", and a few others sincerely believe that "democracy" is the best way to select legal specialists (though I doubt they would select heart surgeons or plumbers based on political campaigns).

As my journalist friend acknowledged, this is not a fun or interesting issue. But it is a wildly important one. Not because I particularly care about the judges themselves - they could find other jobs if they needed to. But I care deeply about whether the courts in Missouri will continue to work as well as they currently do. I worry about political consultants playing a larger role in our judicial system. I worry about losing the perception of fairness in our courts, and I worry about losing the reality of fairness.

What we have works. Every alternative being pressed by the Republican political consultants will increase the role of money, political partisanship and political consultants. I don't want to give political consultants a bigger role in our judicial system. I don't want our courthouse to resemble the City Council.

Who does?

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