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Assuring an Independent Judiciary
Monday, April 30, 2012
I am pleased to report that legislation pending in the Missouri Senate which will significantly improve the way we chose judges in the appellate courts of Missouri is likely to be approved. Senate Joint Resolution 51 is very similar to legislation that I have worked on for five years.
Missouri's judges make important decisions that affect every Missourian. They rule on everything from property rights and business litigation to gun rights and public safety. Unfortunately, the people of Missouri have a very limited role in the way judges are picked for our highest courts. This makes little sense when you consider that the judicial branch is a coequal branch of Missouri government sharing responsibility with the Executive and Legislature.
The most common method for selecting judges across the country is through direct elections. Judges in court houses in the vast majority of Missouri Counties including all Judges in central Missouri have always been chosen just like most other county officials-by elections. In some other states, judges are appointed by the governor in a system that resembles the method in the U.S. Constitution. However, in Missouri our highest judges are not elected or appointed by elected officials but are selected using a method commonly known as the "Missouri Plan."
Under the Missouri Plan, as presently constituted, an unaccountable commission dominated by lawyers sends nominees to the governor. The governor must pick one of these three nominees. Currently four out of seven of the current commissioners are lawyers. One member is a judge who serves on the Supreme Court and three others are lawyers chosen by members of the Bar. The other three members (the minority) are ordinary citizens which are chosen by the governor.
Under the current law, the governor chooses one member of this commission every two years. A governor must be reelected before he or she has the opportunity to appoint all three. Our governor is powerless to affect appointments to these important positions and therefore can't be held accountable for bad judges. Our current system of picking appellate judges is dominated by lawyers and leaves average citizen with no way to influence the process. It doesn't seem right to leave the selection of this important branch of government up to a special interest group.
A recent string of bad decisions by Missouri appellate courts have made Missouri's courts the laughingstock of the national business community and landed our state in the American Tort Reform Association's recent Judicial Hellholes report.
Our state needs to change its method of judicial selection. SJR 51 makes several important changes. First of all it removes the dominance of the lawyers in this selection process. It changes the make up to three lawyers and four nonlawyers. It gives each elected governor the ability to replace these four commission members within two years of being sworn in.
These two important changes in SJR 51 adds accountability to the process. Since the nonlawyer members chosen by the governor cast a majority of the votes for the selection of an appellate judge, voters can hold the governor accountable for choosing less able judges. This improved system recognizes that lawyer members can bring an important perspective to the process, but rejects the notion that lawyers should control the selection of the judges in the courts that they appear before. This legislation also increases the panel of judges for the governor from three to four. More choices can only improve the selection process.
The No. 1 goal of SJR 51 is to improve our courts and strengthen the independent judiciary. The best way to do that is to reduce the influence of unaccountable special-interest groups and increase the influence of the people of Missouri through our elected officials. If this legislation passes in the Senate, I am optimistic for its chances in the Missouri House. If approved by both legislative bodies, SJR 51 will go directly to Missouri voters for there consideration.