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Changes to the Missouri Non-Partisan Court Plan Are Headed to the Ballot

On November 6, 2012, Missouri voters will decide whether to approve or strike down proposed Amendment 3 to the Missouri Constitution. If approved, Amendment 3 would have the effect of eliminating Missouri’s merit-based judicial selection process. For the reasons set forth below, we recommend that you vote “No” on Missouri Amendment No. 3.

The current method of selecting judges in Missouri, commonly known as the “Missouri Plan” or the “Non-Partisan Court Plan,” was adopted in 1940 to remove politics to the maximum extent from the judicial selection process. Missouri was the first state in the union to adopt a non-partisan system for appointing judges, and the Missouri Plan has served as a model for 34 other states that now use some sort of merit selection system to fill some or all judicial vacancies. Under the Missouri Plan, appellate judges and circuit court judges in select counties are chosen by diverse judicial commissions.

The judicial selection process under the Missouri Plan allows citizens and lawyers to work together to select qualified judicial candidates with the intent that no politician or interest group controls the process. With respect to judicial selections for the Missouri Supreme Court and Court of Appeals, a seven-person Appellate Judicial Commission (“Commission”) makes the selections. The members of the Commission are selected by three diverse authorities: the governor appoints three non-lawyers for staggered terms; lawyers in each of the three appellate districts elect a lawyer from each district for staggered terms; and the chief justice of the Missouri Supreme Court serves for two years during his/her term as chief justice. Similarly, the circuit courts in Clay County, Greene County, Jackson County, Platte County, St. Louis County and the City of St. Louis have their own circuit judicial commissions. These commissions are composed of the chief judge of the Court of Appeals district in which the circuit is located, plus two lawyers elected by the Missouri Bar and two citizens selected by the governor. All of the lawyers and citizens serving on the circuit judicial commissions must live within the circuit for which they serve.

With respect to the Appellate Judicial Commission, the Commission reviews candidates each time a judicial vacancy opens up. The commissioners review the candidates’ character and experience and evaluate their professional strengths and legal analysis skills. The Commission then sends to the governor a list of three candidates it considers to be best qualified for the position. The governor then has 60 days to select a candidate from the list. If the governor does not make a selection within 60 days, the Commission makes the selection.

By removing politics from the judicial selection process, the Missouri Plan aims to provide well-qualified, competent and impartial judges to the citizens of Missouri without the corruption or activism that has sometimes plagued the judiciary in states that use a more partisan political process to choose judges. The Missouri Plan prevents judges from campaigning, accepting campaign contributions and engaging in partisan politics. In addition, the Missouri Plan attracts quality applicants because the applicants understand that they will be evaluated based upon merit rather than their connections with higher-ups, political contributions or partisan politics.

Proposed Amendment 3 seeks to change the current non-partisan selection of Missouri’s appellate and Supreme Court judges to a process that gives the governor increased authority to (1) appoint a majority of the commissioners that select these court nominees; and (2) appoint all lawyers to the Appellate Judicial Commission by removing the requirement that the governor’s appointees be non-lawyers. While some have labeled Proposed Amendment 3 a mere tweak of the Missouri Plan, opponents of Amendment 3 believe it would give future governors virtual control over the selection of judges in Missouri. For instance, major contributors to the governor would have substantial influence over his/her appointments, which would ultimately give the governor substantial influence over the judicial nominations themselves. In effect, Proposed Amendment 3 would give future governors unchecked power through control of a voting block of four of the seven Commission members. This, in turn, would destroy the carefully balanced Commission and allow a single political party, a single individual or a single political interest group to have control over the judicial selection process.

To put Proposed Amendment 3 into perspective, if passed, Missouri’s future governors would be one of only two in the nation to have such a high level of unchecked control over the judicial selection process. In fact, Amendment 3 would give future governors more power than the president of the United States when it comes to choosing judges.

November 6, 2012 marks an important day for the citizens of Missouri. We feel it is necessary to educate the public about the Missouri Plan so that our fellow citizens can make an informed decision regarding Amendment 3. We recommend that you vote “NO” on Proposed Amendment 3, thereby retaining the Missouri Plan, an innovation replicated in a majority of our sister states.