The Missouri Bar says proposed changes would give control of judicial selection to the legislature

The Missouri Bar

A proposed Missouri constitutional amendment that has passed the House and is expected to come before the Senate any day would put the Missouri Non-Partisan Court Plan in the hands of the state legislature, giving politicians complete control over the future of the Plan. The Missouri Bar strongly opposes House Joint Resolution 10, which its president Tom Burke says would "make a mockery out of the concepts of separation of power and would obliterate the checks and balances among the branches of government."

Although HJR 10 is being touted as a way to improve the Non-Partisan Court Plan, a small section, buried deep within the proposal -- at the end of Section 25(d) -- notes that the legislature could pass bills that would supersede the procedures established by any of the commissions that screen judicial applicants.

Missouri's judicial selection system has been imitated in part by more than 30 states. It is regarded highly, and it is known throughout the nation as the Missouri Plan.

Under the Non-Partisan Court Plan, an appellate judicial commission evaluates all candidates for the Supreme Court of Missouri and the Missouri Court of Appeals. The Plan also includes trial-level judges in St. Louis City and County, as well as in Jackson, Clay, Platte and Greene counties. Judicial commissions in each of these circuits evaluate candidates who apply for trial-level judgeships. The commissions focus on the merits of each candidate, not on their political affiliations. "The beauty of the Missouri Plan," said Missouri Bar President-Elect H.A. (Skip) Walther, "is that every lawyer knows that it's not political connections that count -- it's a person's knowledge, abilities and reputation that determine who sits on the bench."

From the group of applicants, the judicial commissions select the three most qualified candidates for each opening. The governor then makes the final selection from the slate of nominees presented to him. At the next election after the new judge has served a full year on the bench, voters determine whether to retain the judge on the bench. HJR 10 would increase the number of candidates from which the governor chooses from three to four. In addition to broadening the field, the proposal would allow the governor to veto the first list of candidates, giving the governor the choice of eight candidates. This would give the governor much greater influence in the selection of judges.

This procedure undermines a 1976 amendment to Missouri's Constitution, which prevents a power grab from a sitting governor by giving the judicial commission the responsibility of choosing one of the candidates if the governor will not. The commission would still have that responsibility, but only after the governor has rejected eight candidates.

Another proposed change would further increase the governor's influence by having the governor select four citizens to serve on the appellate commission and three for the circuit commissions. Currently, the appellate commission consists of a member of the Supreme Court of Missouri, three lawyers and three lay members. Commissions that select nominees for the trial bench consist of the chief judge of the Court of Appeals district in which the vacancy occurs, two lawyers and two lay members. Increasing the number of people the governor appoints would be another change that puts politics ahead of merit and breaches the political checks and balances that are at work in the Non-Partisan Court Plan.

The Non-Partisan Court Plan was designed to reduce the influence of partisan politics on the courts and to ensure a separation of power between the legislative and judicial branch of government. One way it does this is by excluding legislators from selecting judges or from selecting the people who choose the judges. A major change proposed by HJR 10 would give the Senate a role in the selection of lay members of the nonpartisan commission. Each of the governor's appointees to the commissions would be subject to Senate approval. "This would sink the entire process into a muddy political mess," said Missouri Bar President Burke.