Friday, August 29, 2008

The Missouri or Nonpartisan Court Plan

In New judge selection plan proposed, Dirk VanderHart of the "Springfield News-Leader" explained the Missouri Plan:

"Already in use in circuit courts around St. Louis and Kansas City --as well as the Missouri Supreme Court and Court of Appeals -- the Missouri Plan does not require judges to run in partisan elections.

Instead, a "nonpartisan judicial commission" of five members screens applicants for an open judgeship, then forwards three finalists to the governor.

The governor has 60 days to select one of the finalists. If no selection is made, the judicial commission makes the choice.

The public becomes involved in the process during retention elections, in which a majority vote can force the judge off the bench, and the process starts again."

"Question 1" will be presented on the Greene County ballot in November. The group promoting it, Vote Yes for Question 1, gives some history of the Missouri Plan, which they call "the Nonpartisan Court Plan:"

"We have a special judicial system already built into our state constitution that started with efforts made back in 1940, when Missourians voted to keep politics and special interests out of the courtrooms of the Supreme Court, the Court of Appeals and the trial courts in Jackson County and the city of St. Louis. Three other Missouri counties adopted the Nonpartisan Court Plan in early 1970s, and now Greene County has the chance to do so as well." Read more....

...And, Vanderhart noted, the proposed plan has support in Greene County, among them, the League of Women Voters, the Greene County Commission and the Springfield Area Chamber of Commerce.

The Missouri Plan has been studied by the Show-Me Institute. I made this topic a "Recommended reading" in mid July when I posted a link to Show-Me Institute's article, "Is the 'Missouri Plan' Good for Missouri?" Quoting myself:

Find out the results of a study of judicial selection systems, undertaken by Joshua Hall who is an assistant professor of economics at Beloit College and Russell S. Sobel, professor of economics and Distinguished Chair in the Department of Economics at West Virginia.

You can also access the full study and a four page policy briefing here.

From the briefing:

"Our analysis finds no other method of selection resulting in average scores or rankings that are statistically higher than Missouri’s current system."

On June 21, 2007, Governor Blunt spoke to the Kansas City Lawyers Chapter about the Missouri judicial selection process.

About two months later, the Show-Me Institute published an article about the Missouri Plan. The article, written by policy analyst David Stokes, was titled, The Missouri Plan, or: How I Learned to Stop Worrying and Love the Lawyers, and in it, Stokes claims a few changes to the plan could make it better.

The plan, as previously noted, is already used in Missouri's Supreme Court and the Court of Appeals as well as the circuit courts of Jackson County and Saint Louis City and has been expanded to include circuit judges in Saint Louis, Clay, and Platte Counties.

Stokes, in the 2007 article wrote, "The system has worked very well for Missourians, taking some of the politics out of judgeships and efficiently filling vacancies."

He then recommended it could work better with a few changes.

Stokes wrote that a Supreme Court opening had, "raised to new prominence the simmering dispute over the true non-partisanship of the Missouri Plan:"

"Allies of Governor Matt Blunt feel that the current appellate judicial commission has not fairly recognized the fact that he, not the commission, is the elected leader of Missouri. The current make-up of both the commission and its recently selected panel, which many conservatives feel is tilted toward the left, seem to substantiate this charge. This has led to calls from some legislators to do away with the Missouri Plan."

(...and remember, Vanderhart noted that the group "Better Courts for Missouri" had noted that, "17 of the last 18 nominees to the Supreme Court had been Democrats.")

Stokes indicated he thought changes needed to be made but the plan shouldn't be completely done away with in his 2007 article. To read about the changes the Show-Me Institute policy analyst thought could improve the Missouri Plan in more detail, click here.

In summary, his suggested changes were:

> "Making the appointed positions’ term coincide with the governor’s own term would serve to respect the wishes of voters and whatever candidate they choose to elect."

> "Add(ing) one appointed position to each commission, making the number of appointments equal to the number of judges and attorneys on the commission."

...and finally,

> "The Legislature should take steps to make it clear to all that the various judicial commissions’ actions are covered by the state’s sunshine law."

I think it is also important to include this tidbit from Stokes article:

"....The retention vote is a good practice, but electoral history has shown it is almost impossible to get enough people to focus on the issue. Last year in Saint Louis County, a judge was handily retained by voters when an overwhelming number of lawyers, in a bar association survey, had advised against retaining her — a recommendation echoed by area newspapers. Perhaps we could improve the retention vote system by taking a page from Illinois and mandating a 60-percent vote in favor of retention in order for a judge to remain in office. I believe that is an idea worth debating."

An effort to make changes to the Missouri Plan failed earlier this year. Stokes ideas were not a part of the proposed changes, rather, HJR 49 would have increased the number of candidates the Appellate Judicial Commission would recommend to the governor from three to five and the governor would have been able to veto the list, at which point the commission would have had to submit a new list for the Governor to consider.

Vince had a fairly heated discussion about "question 1" on the Vincent David Jericho Show this morning and I hope, at some point, to be able to provide a link to the podcast here. At the moment, it is not available from their Web site.

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