Measure would revise judicial nominating board

KANSAS CITY, Mo. -- Constitutional Amendment 3 on Missouri's Nov. 6 ballot is either a small but needed change in an obscure state board, or the biggest threat to independent courts since voters took big money and machine politics out of choosing the state's top judges in 1940.

Either way, the proposal's backers and detractors agree on this much: What the group promoting it ultimately wants is to replace Missouri's widely copied Nonpartisan Court Plan with direct election of all judges, all the way up to the state Supreme Court.

That group, Missourians for Better Courts, spent about $1 million trying to get a proposal for direct election of judges on the 2010 ballot. The effort failed for lack of sufficient petition signatures, but the aim of this year's measure is the same -- to reduce the clout of lawyers in selecting the state's top judges.

"I think Amendment 3 would be a good step to break the legal monopoly that controls judicial selection in Missouri," said the group's executive director James Harris, who calls the proposal "a minor tweak or update."

The proposed constitutional amendment would change the makeup of the special commission that interviews applicants for the Supreme Court and the Court of Appeals and nominates three finalists to the governor, who picks the new judge.

The Appellate Judicial Commission includes the Supreme Court's chief justice, three attorneys chosen by fellow lawyers, and three nonlawyer citizens appointed by the governor.

Amendment 3 would keep the three lawyers, but it would give the governor majority control by replacing the chief justice with a nonvoting former judge and letting the governor appoint four members -- who could be lawyers -- instead of three.

That's where the role of partisan politics -- and the money that goes with it -- comes in, says the group Missourians for Fair and Impartial Courts, an unusual coalition of former Supreme Court judges, corporations, civic and government groups, personal-injury lawyers, lawyers who defend insurance companies and The Missouri Bar, made up of all Missouri lawyers and judges.

If the governor controls the panel that nominates judges, the coalition argues, then anyone interested in influencing judicial appointments has reason to contribute to the governor.

"The amendment they propose allows the governor to appoint four of the seven members of the commission -- a majority," said retired Supreme Court Chief Justice Ray Price, who has been a leading opposition spokesman.

"Although they say this only is a small change, this changes the whole plan completely to a one-office control system," Price added. "And why do they want all that power in one office? One-stop shopping. A simple tweak? That repulses me. I just think that's flat wrong."

What's more, Price said, this latest step in what he calls an escalating attack on the Nonpartisan Court Plan will trigger an endless cycle of campaign contributions by groups aiming to influence decisions on such critical issues as tort reform, gun control and abortion rights.

Harris, of Missourians for Better Courts, said the measure's opponents are misstating its intent, and for obvious reasons.

"This would just reduce the influence of the legal special interest," Harris said. "They're nice folks, but they have a financial interest in the type of people appointed to the courts."

Critics of the Nonpartisan Court Plan sometimes claim the nominating commission is stacked with personal-injury lawyers. That's why the amendment's opposition by the Missouri Organization of Defense Lawyers -- attorneys who defend insurance companies -- surprises some observers.

Harris, however, sees it as further proof that the legal community as a whole is a special-interest group -- a "litigation industry."

"More lawsuits are always good if you're an attorney," Harris said.

"MODL is interested in the Nonpartisan Court Plan because it is the best way we know in the country to select merit judges in a nonpartisan fashion, and to give us qualified judges who are not beholden to anyone," replied Randy Scherr, the group's executive director. "We support that because good judges help our lawyers and their clients in their litigation."

Neither Harris nor state Sen. Jim Lembke, a St. Louis County Republican who introduced Amendment 3 in the Legislature, is bothered that the measure would allow the governor's appointees on the commission to be lawyers. (That change to the existing rules was made in a Senate committee.) A governor foolish enough to do so, they argue, would be answerable to outraged voters.

Lembke originally proposed to take all lawyers off the Appellate Judicial Commission and the commissions that nominate circuit judges in St. Louis and the five big counties where they are appointed rather than elected. He would have replaced them with nonlawyer citizens chosen by the governor and confirmed by the Senate.

Lembke said his goal was to adjust the balance of power by giving the legislative branch a check on the judiciary. His proposal was vastly rewritten before lawmakers put it on the ballot, but he still hopes Amendment 3 will pass.

"It's not the bill I would have liked in a perfect scenario," he said. "But it's a modest change, a compromise, something we could get out of the Senate, and it's a step in the right direction."

Amendment backers halted their active campaigning in early October, arguing it was doomed by a ballot summary they say unfairly highlights the governor's increased power.

But if it loses, Lembke predicts Missourians for Better Courts will be back in two years proposing exactly that.

"They will go to the people with an initiative petition, and my understanding is they've done the polling and the election of judges is very popular with the people of Missouri," he said. "I don't favor that, but that's where they're going."