This article first appeared in the St. Louis Beacon, Oct. 25, 2012 - Proponents of a plan to change the way Missouri chooses appellate judges say they have given up trying to pass the amendment in next month’s election, but those who are lined up against the changes are still pressing their case.
Backers of Amendment 3 announced earlier this month that because of what they considered to be “deliberately deceptive and hopelessly biased ballot language written by Secretary of State Robin Carnahan,” they were dropping their campaign for the measure.
That hasn’t stopped the opposing group, known as the Missourians for Fair and Impartial Courts Committee, from trying to tell voters that the changes the amendment would bring would make appellate judges more susceptible to political and financial pressure.
Former Missouri Supreme Court Judge William Ray Price – one of six former members of the high court who have helped in the campaign against the amendment – said he isn’t necessarily against any changes in what has come to be known as the Missouri Plan and has been adopted by many other states.
But, he told the Beacon, the provisions in Amendment 3 are the wrong way to go.
“I would be more than happy to look at any changes that would add more balance, add more transparency and take things further from politics and contributions,” said Price, who is now with the law firm Armstrong Teasdale.
“What is not worth looking at are changes that make it ideologically focused. You want a judge to come into a lawsuit to be fair. You don’t want a judge coming in from an ideological point of view or looking toward the next campaign contributions.”
Those in favor of the amendment, who have campaigned as a group known as Better Courts for Missouri, say they need to fall back, regroup and figure out what their next step will be. Spokesman James Harris said that because of the misleading wording on the ballot, they needed to sit this one out.
But he had two words for the claim by the opponents that his group is trying to inject politics into the judge selection process: "It's laughable."
William G. Eckhardt, a law professor at the University of Missouri-Kansas City whose work has been cited by Harris' group, says the current plan is “old, weak, elite, clubbish and needs to be upgraded.”
He told the Beacon that Amendment 3 “is the slightest of tweaks of the current system. It’s certainly not an attack on the system. It’s not even a radical change. But when you couple that with the Missouri Bar’s refusing to even come to the table and talk about it, what they are doing is paving the way toward judicial elections. Nobody likes that.”
The amendment and the ballot language
The changes included in Amendment 3, which would require a simple majority for passage on Nov. 6, would involve only how Missouri chooses judges for the Supreme Court and the state appellate courts. Circuit courts in the St. Louis, Kansas City and Springfield areas that use the plan would not be affected, and the method now used to vote on retention of judges would remain the same.
What the amendment would do is change the makeup of the commission that forwards names to the governor to fill vacancies on the appellate courts.
Currently, that seven-member panel is made up of three members of the Missouri Bar, three people chosen by the governor and the state’s chief justice. The terms of the members are staggered, so not all of the governor’s picks are chosen during the same term.
Under the amendment, the panel would include four people named by the governor, all to four-year terms during his or her term, plus three members of the Bar. The chief justice’s spot would be replaced by a retired judge who would not have a vote.
Those changes may seem minor and straightforward. The dispute came when Secretary of State Robin Carnahan’s office released the ballot language summarizing the amendment’s provisions. It says:
“Shall the Missouri Constitution be amended to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to:
- appoint a majority of the commission that selects these court nominees; and
- appoint all lawyers to the commission by removing the requirement that the governor's appointees be nonlawyers?"
Proponents of the measure fought that language in court, saying it does not spell out the true intent of the changes. But the wording was upheld at the circuit and appellate court levels.
The amendment was put on the ballot by the General Assembly; you can read the complete language here.
Politics and money
Reports filed this month by both sides with the Missouri Ethics Commission showed that proponents of Amendment 3 had raised $80,000 and had $28,000 on hand; opponents had raised nearly $614,000 and had $534,000 on hand.
Price said that the opposition will continue to work to convince Missourians that the changes aren’t a good idea.
“I think they decided not to push this particular amendment because it’s so silly,” he said. “I don’t know why they didn’t come to that conclusions sooner, or come forward with a more thoughtful proposal. It’s something the people of Missouri are just not going to support, and no matter how much they spent, they just weren’t going to win.”
When the other side backed off its campaign, he added, “our level of anxiety may have lowered just a bit, but our strategy didn’t.”
He said that those who want to change the plan have been working for 10 years with their ultimate goal being the election of judges – something that the court plan was designed to do away with when it was passed deades ago.
Price said the changes in the amendment “would take away the checks and balances that are in the system now. They are trying to get one-stop shopping – if we can make enough donations to the governor, we can get whom we want in there.”
He said the ballot language is accurate, adding that “I haven’t seen a ballot language yet that everybody likes.” And he acknowledged that while the nonpartisan court plan can never truly remove politics from judicial selection, the current system works well.
“You have three lawyers, three people who can’t be lawyers and the chief justice. All of this acts as a sieve to get the best candidates; then the governor can appoint whoever he wants. Ultimately they go to the people for retention, so they have checks and balances on who stays.”
Harris, on the other side, says polls have shown that Missourians don't like the judicial selection plan that carries their state's name, and other states that have adopted it have changed it significantly.
"It's not supported by our citizens," he said. "That is why we have seen the plaintiff bar fight to keep any sort of reform from making the ballot, because they know people don't support the status quo.
"It is a relic, from the 1940s, an era where they wanted to move decisions away from citizens and give them to certain groups that they thought may know better. I think that the majority of citizens don't support that though. It's outdated."
Harris said the fact that the Bar opposes even what he considers to be the minor changes in Amendment 3 shows the other side's true motives.
"Anything that weakens their influence or their powers is potentially bad for their financial interests or their efforts to help get their friends on the courts," he said. "It's a good old boys club whose era has gone by."
Next stop: Judicial elections?
Eckhardt, the law professor whose work has been cited by proponents of the measure, said that the amendment is really just one step in an ongoing battle over how the court plan should look in the future. Despite the outcome next month, he said, the struggle is likely to continue.
“There’s a fight among reformers about whether to continue with the Missouri Plan or get elections,” he said. “If we moderates lose, we’re going to have elections.”
He said that Amendment 3 would make the governor more accountable in ways that whoever is serving in that office is not now. He pointed to how often the nominees forwarded to fill appellate court vacancies have belonged to the same party as the governor over the past 20 years.
He calls the changes in Amendment 3 “a technical matter. To educate the public takes lots of time and effort and money. The Bar is stonewalling. There would have been a hellacious fight if they hadn’t tinkered with the ballot language. When they did, the people who fund the campaign said we’re not going to spend the $4 milliion or $5 million it would take. We’ll just come back next time and get different reform.”
That fallback position, Eckhardt said, is an all-out push for judicial elections.
“This has been the most interesting fight,” he said. “I would have assumed we all want good judicial selection, and I would assume the Bar would want it more than anybody else. Why, with an old creaky law that even the chief justice says needs changes, can’t they come to the table and try to come to an agreement?
“It may go through. The language is so unfairly written, I don’t see how it can. But it might. It depends upon turnout. It depends upon lots of stuff. This need not be a partisan issue. It’s the Republicans whose toes have been pinched, but the law itself just screams.”