Wednesday, April 29, 2009

Worst Argument EVER for Ruining the Missouri Plan

Professor Bill Eckhardt has a history of engaging in misleading right-wing attacks on the Missouri Plan for selection of judges. I won't rehash the factual and logical mistakes he made in that failed attempt, other than to point out that it was embarrassing enough that the Dean of the Law School felt compelled to publicize her strong support of the Missouri Plan.

He's at it again, with the same batch of false logic and factual mistakes that characterized his earlier attempt. It's unworthy of a law professor, and it's almost unworthy of response. In the end, as I've said before, the Missouri Plan works well, and every single attempt to change the Missouri Plan is designed to increase the role of politicians and political consultants.

BUT - right at the end, Professor Eckhardt tosses in a doozy of an argument that deserves to be pointed out, if only for its intellectual, political and moral bankruptcy. Professor Eckhardt asks those of us who defend the plan that has served as a model for other states:
Are they not concerned that defeating HJR 10 could lead to a ballot initiative that would completely eliminate the Missouri Plan and move Missouri to something no one has asked for yet? Though a move to contested judicial elections — opposed by many of us — has not been proposed by reformers, others may be tempted if modest reforms fail.

If that is the case, the Missouri Bar and other opponents may look at a Missouri in which judges are directly elected and dream of the days when moderate reform was possible.

In other words, Professor Eckhardt is trying to convince us to abandon a successful system of judicial selection because if we don't, his side of the argument might do something really, really stupid - something so stupid that he opposes it, and nobody has even proposed it yet!

It is a sign of the desperation of those who hate our judicial system that they are resorting to hollow threats in an attempt to further politicize our courts.

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Anonymous Jim Byrne said...


I agree! The last two paragraphs of Prof. Eckhardt's article are nothing but stupid hollow threats. I consider them to do more harm than good.

I sure don't want our appellate court judges to be chosen by election (partisan or non-partisan), and I don't know of anyone who supports reform of "The Missouri Plan", that wants that either.

As to the rest of the article; could you please explain, in at least some detail, why you consider the professor's statements to be based on "false logic and factual mistakes"?

Just because you say it is so, doesn't make it so. -at least not in anybody's mind but your own.If the Missouri Plan works so well, then why are the complaints filed against these judges hidden from the public, the Legislature, and the Governor? I'll admit that hiding the complaints does have the effect of making things look better than they really are. However, don't tell me that I can't look at what's behind the door, but everything is hunky dory. (We’ve all seen that played out in too many comedies.)

While I can justify confidentiality to protect the image of our judiciary from frivolous complaints, that determination should be determined by a disinterested party; not by two fellow judges, and two members of a committee of the Supreme Court. -I would express the same amount of dissatisfaction towards any entity that considers self-policing to be the best policy. It doesn't work. It's not unbiased. And it always has a tendency to protect the image of its members over the general public.

When the voters approved the creation of the commission that is to recommend disciplinary action against judges (in 1976), they didn't approve the hiding of complaints; the Supreme Court did that without voter approval! -The Supreme Court seems to like to do a lot of things without voter approval. –Like manipulating the Missouri Plan.

While voir dire, the selection of jurors, has a history of being open to the public (except is special cases, when the well-being of potential jurors may be put in jeopardy), the selection of the jurist, in Missouri, in hidden from the public. Why is that? How can you justify that?

Further, the 1976 ballot language, that forces the governor to submit to the will of an unelected commission was;
”Changes authority and jurisdiction of Supreme Court, Courts of Appeal, and circuit courts; abolishes all other courts; creates associate circuit judges; amends non-partisan plan; amends judges retirement provisions; abolishes constables and St. Louis City prosecuting attorney; municipal courts become divisions of circuit courts.”This language is ambiguous, at best. It virtually rewrote Article V of the Missouri Constitution, and created the Commission that disciplines judges -giving lawyers and judges dominating control of such commission. –We have, then governor, Kit Bond (a fellow member of the Supreme Court's committee) to thank for placing it on the Primary Ballot, where it would be much easier to get it passed, with very few taking notice. The ballot language didn't tell the voters much of anything. Did it?

I'd almost rather have no judiciary at all, than one who sneaks around under the cover of darkness. The ability to create rules for practice and procedure, should not include the ability to modify what is set forth in the Constitution. -Only the arrogance of the Court, and their oh-so-loyal committee members, would consider that to be acceptable. The good citizens of Missouri have been played as fools by our Supreme Court, and its high time we hold them accountable for their actions.

4/29/2009 11:03 AM  
Anonymous Jim Byrne said...

Ooops! My mistake...that's what I get for being in a hurry.

The C.R.R.D. was adopted by the voters in 1970, and began operation in 1972.

I'll try to get the ballot language, and what the applicable text of the Constitution was, as it was originally adopted, later today.

4/29/2009 11:21 AM  
Anonymous Anonymous said...

Dan -

Please don't feel obligated to respond to Jim Byrne. Regardless of what you write in response, Byrne will reply with a long, rambling diatribe of how life will only be worth living if the Missouri Plan is dismantled. Don't waste your time.

4/29/2009 1:16 PM  
Anonymous Anonymous said...

Mr. Byrne has a point - it just isn't one worth making.

4/29/2009 1:17 PM  
Anonymous Anonymous said...

If I may, Eckhardt is exactly right in his reasoning. There are some in the state, myself included, who would love to raise money to see the direct election of judges--as many states enjoy.

Part of me hopes the effort at 'compromise' will fail because then the steam for full-throated reform won't be weakened.

The best explanation is that as a function of your own political views, you are not privy to the inclinations of those with whom you disagree. Prof. Eckhardt is, and so he counsels wisely that a small defeat is better than a large one.

4/29/2009 9:49 PM  
Anonymous Lance said...

People oppose the Missouri Plan and claim that direct elections would politicize the process, but the process is already highly political.

The biggest problem that exists with the Missouri Plan is the way in which the people get stuck with bad judges. In counties with direct elections, bad judges get voted out. How many times in the history of the Missouri Plan has a judge been denied retention? How can the people of, say, Jackson County really take action to get a bad judge off the bench? Who would fund such an effort?

The current Missouri Plan has a glaring deficiency in that there is no reasonable method for removing bad judges.

4/30/2009 11:33 AM  
Anonymous Anonymous said...

Video of Professor Eckhardt's position on the Jackson County Ethics Commission.

4/30/2009 1:02 PM  
Anonymous Anonymous said...

Story published elsewhere:

Occasionally, you will read where a poor fellow is prosecuted for lying to the feds. I say “poor fellow” because if he were better connected, “the power of discretion” could have intervened on his behalf, and he would have walked.

Here is a recent example of how “the power of discretion” can come into play, allowing one politician to get away with lying and one former politician to get a felony conviction.

Once I spoke with one of our local U.S. prosecutors about a Jackson County legislator who had lied to the FBI, and the prosecutor said, “yeah, he lied to us. Do you know how many people lie to us?”

It didn’t matter. This legislator’s fib was the start of an investigation that went on for months and resulted in the conviction of Bill Waris, a former county executive ... for ... you guessed it ... lying to the feds.

Newspaper reports confirmed that the legislator admitted making misleading and inaccurate statements to an FBI special agent, and that he later changed his story.

So why did the legislator get a pass? Is it possible that his attorney and personal friend was at one time employed as a U.S. prosecutor?

It is important to understand, that some feds become career public servants, but others leave for greener pastures. And when a prosecutor goes private, working relationships remain intact, and old friends are merely a phone call away.

For example, former statewide politician Catherine Hanaway, who has served as U.S. attorney for eastern Missouri since 2005, just announced she will be creating a private practice based in Kansas City.

Also, a former U.S. attorney from the Kansas City, western Missouri office, was recently appointed as a judge on the bench of the Jackson County 16th Circuit Court. Did it make a difference that he had been around during the prosecution of Katheryn Shields?

If you follow the politics, then you know that Shields’ political enemies are currently wielding their power. And it is not too far of a leap to conjecture that they might be very willing to be “helpful” in the selection of panelists to fill judicial vacancies.

(You see, while I concede that the Non-Partisan Court Plan may have stopped the corrupt process of electing a judge, I am not naïve enough to believe that the plan has removed politics entirely from the process.)

Clearly, I am inferring that “the power of discretion” serves as the root of corruption within our system of justice. And it makes no difference whether it’s the officer who cuts some slack for the offspring of an elected official, or the prosecutor, who does a favor for an attorney he went to school with and worked along-side.

Here in Jackson County, it appears the power of discretion has made the decision to prosecute a political one based upon considering cloudy relationships.

Perhaps President Obama’s attorney general, Eric Holder, can be our hope. He recently put his foot down and stopped the prosecution of a U.S. senator because of corrupt procedures within the U.S. Department of Justice.

It would be good for our community if Holder were to give a thorough review of the status quo at our local Department of Justice and Federal Bureau of Investigation. Of course, that decision will be subject to Holder’s “power of discretion.”

4/30/2009 1:19 PM  
Anonymous Anonymous said...

judges are protecting the system and not the people. the Juducial Review Committee is comprised of judges. File a complaint against a judge. That is a joke. It appears judges are undermining the U.S. Constitution. The way to prevent this is to place the Juducial Review Committee in the hands of our state legilators and amend the Constitution. We must protect the Constitution of the U.S.A. To many americans have died for it and are currently dieing for it. To many loved ones have stood over their soilders grave and cried for it. Call your congressman and senator and demand an amendment. Restore the Constitution to the people. E-mail all of your friends

5/07/2009 7:13 AM  
Blogger Dan said...

"to" many people with logic like that are involved in the movement to reduce the autonomy of the courts for me to ever support it.

5/07/2009 9:13 AM  

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