Amendments would alter balance of power, ex-senators say

When taken individually, the proposals in the Missouri Legislature to amend the state constitution could be viewed as reactions to unrelated events, such as the proposal to bar judges from ordering a tax increase that is making headlines at the same time as a lawsuit over the distribution of state education funding.

But when reviewed in total, the proposals from lawmakers could, if enacted, dramatically alter the balance of power between the branches of government and between state government and the people.

In all, more than a dozen amendments dealing with basic constitutional questions have been proposed. Several would make it harder to pass constitutional amendments. Another would make it far more difficult to put initiative petitions on the ballot. Other proposals would reduce the power and tenure in office of state judges, make Missouri House members responsible for serving more constituents and weaken legislative term limits.

To help understand the impact of the various measures, the Southeast Missourian interviewed three former state senators with a combined 86 years experience in the legislature -- a conservative Republican, Emory Melton of Cassville, a conservative Democrat, Harold Caskey of Butler, and a liberal Democrat, John Schneider of Florissant. All stated a similar theme: If enacted, the proposals would discard longstanding constitutional principals and diminish the power of voters.

"Every one of those kinds of provisions limit the ability of the people to have some check on what the legislature does," Schneider said. "It is an arrogant legislature that has repeatedly done things that are for the benefit of big business. Every time you weaken the people, you weaken the ability of the legislature to represent the people."

Melton retired in 1996, but Schneider and Caskey were forced out by the eight-year limit on legislative terms.

Caskey said he feels no bitterness about his ouster, but said the lack of legislative experience is beginning to show. "Senators were the constitutional folks who understood the nature and extent of the constitution," he said. "It protects our citizens, and our goal was that we made our citizens safe not only from criminal activity but from the government."

Each current lawmaker interviewed said their proposals are individual ideas. "It maybe sounds like a conspiracy to do all these things, but we have all come up with these ideals individually," said Rep. Jane Cunningham, R-Chesterfield, and sponsor of the measure to restrict judicial power over taxation and spending.

Opponents have attacked Cunningham's amendment as an attempt to fix something that isn't broken. No state judge has ever ordered a tax increase.

But Cunningham said she's concerned that precedents set in other states and rulings in Missouri desegregation cases in federal court could be used by Missouri courts. And she notes that rulings in Missouri have disregarded the legislative intent of spending measures. "My bill is not just about taxes. It is also about spending and budgeting decisions," she said.

A second measure that addresses the courts would limit nonpartisan state judges to a single eight-year term in office. All judges of the state Court of Appeals, the Missouri Supreme Court and judges in the Kansas City and St. Louis areas are chosen through the nonpartisan plan.

The proposal's sponsor, Rep. Jim Lembke, R-St. Louis, also wants nominees to the Missouri Supreme Court to be subject to Senate confirmation.

Judges in nonpartisan courts are nominated by a panel of attorneys elected by other lawyers and nonlawyers appointed by the governor. The panel submits three names for each opening, and the governor selects the judge. At the first election at least 12 months after a judge is chosen, voters decide whether to keep the judge in office. And at the end of each term -- 12 years for appellate judges, six years for circuit judges and four years for associate circuit judges -- voters again decide whether to keep the judge in office.

An attempt by social conservatives in 2004 to remove Judge Richard Teitelman from the Missouri Supreme Court failed.

"I do not think the system is working," Lembke said. "The retention vote is a joke."

However, Melton said the system does work and that the judicial system relies on judges being able to keep their offices until retirement to attract top candidates. "When you have a judge appointed to an appellate court, they are going to give up everything they have in private practice to become a judge," Melton said.

The selection method could use a review, he said, because bar selections to the panel pit trial lawyers against civil defense lawyers.

Three of the proposals before the legislature would increase the majority needed to pass constitutional amendments. Two, filed by Republicans, would require a two-thirds vote to pass amendments. A third, filed by a Democrat, would make the level 60 percent.

Rep. J.C. Keussner, D-Eminence, said he recognizes the irony of allowing a simple majority of voters to change the constitution to require a bigger majority to pass future amendments. But increasing the percentage will keep bad ideas from becoming law, he said.

The current Missouri Constitution was adopted in 1945. Since then, 169 amendments have reached voters and 108 have passed. If the 60 percent requirement was in place, only 55 would have been approved.

Keussner is also the author of the proposal to double the number of signatures needed to place constitutional amendments before voters by initiative petition. The proposal would triple the number of signatures needed to place statutory changes before voters.

Too many bad ideas, such as the proposal to tie state spending increases to increases in Missourians' personal income, are being pushed by out-of-state groups, Keussner said. The spending limit fell just short of making the ballot last year.

The current system of majority approval of amendments isn't broken, Melton said. Both lawmakers and groups pushing initiative petitions are putting too much into the constitution that shouldn't be there, he said. He said that as a strict constructionist he is always wary of too much tinkering with time-tested features of the state's basic law.

"The constitution ought to be the framework, the running gears of government." Melton said. "They are trying to get down and deal with the minutiae of government that they should not deal with."

rkeller@semissourian.com

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