Remarks Concerning Missouri’s Nonpartisan
Merit Selection Plan for Judges
Tuesday, September 11, 2007
Hon. Laura Denvir Stith
Chair, Appellate Judicial Commission
I.
INTRODUCTION
All the members of the Appellate Judicial Commission asked me to let you know
how much we appreciate your invitation to come discuss Missouri's nonpartisan merit
selection plan. The Commission shares the Committee's view that there is a need to
increase public understanding of the judicial selection process in Missouri. When you
offered this opportunity for the Commission to have a public forum in which to provide a
greater understanding of the Commission and the plan set out in the Missouri Constitution, I
was happy to volunteer to speak to you on behalf of the Commission. Again, thank you for
your interest in the process.
The method the people of Missouri adopted by initiative petition in 1940 for
minimizing political influence on judges has been so successful that it has become known as
“the Missouri Plan” across the country. Described as "Missouri's gift to the art of
governance," the Missouri Plan has served as a model for more than 30 other states' own
judicial selection systems because it attracts high quality judges in the least political way,
and ultimately it gives the people of Missouri the final say.
As you know, the Missouri Constitution requires the Commission to follow the rules
of the Supreme Court. As the Commission indicated to Senator Shields when it accepted his
invitation to appear today, I will be able to discuss the general process that the Commission
undertakes to select nominees for the Governor's consideration to fill vacancies on
Missouri's appeals courts, but under Rule 10, it will not be possible to discuss any portion of
the process that occurred in executive session or any other information that is required to be
confidential.
I can describe for you, however, the role of the judicial branch, what the Missouri
Plan is, why it was adopted in Missouri, how the Commission process works under the plan
and why the plan continues to be right for the people of Missouri, as it has been for nearly
three-quarters of a century.
II.
THE ROLE OF THE JUDICIAL BRANCH
As representatives of the third co-equal branch of government, judges play a unique
role in our democracy, a role that is different in significant ways from the role of judges'
constitutional partners in the legislative and executive branches of government. Elected
officials in these political branches run for office on platforms, promising to propose
legislation and carry out their official duties consistent with their perception of the public's
will and their own personal views of what is good for their state or nation and what is not. It
is right and proper that they do so.
But judges, to serve their role in our democracy, are different. Judges are not
supposed to make promises about how they will decide cases before they hear the facts and
research the law. The only promises judges should make are: first, to decide cases fairly and
impartially, free of political influence or intimidation; and second, regardless of their own
personal views or the views of voters, to follow the law as set out in the Constitution the
citizens have adopted, in statutes the legislature has enacted, and as reflected in the common
law principles on which our nation was founded. To do otherwise would, dare I say it, be
what many might call “activist.”
That word is often used when people do not like a particular legal decision – it is
much easier to brand the decision and its author as “activist” than to actually look at it and
see if it correctly applied the law.
It may be helpful, though, for me to make my views on a judge’s role clear: Judges
are not intended to be politicians, choosing sides based on political considerations, or what
the judge’s neighbors, fundraisers or special interest groups might think was best. Deciding
cases based on the judge’s or another’s perception of what is popular or politically expedient
is inconsistent with one's duty as a judge and is just plain wrong.
The judicial branch of our democracy instead must be neutral, seeing that the laws
are applied fairly, and providing stability in the law so that there is consistency in the rules
by which people live their lives. Although some court decisions are not popular, popularity
is not the benchmark of quality in the judicial branch: The nature of our business is such that
half the people are unhappy because they lost and some of the ones who won are unhappy
because they don't think they won enough.
In every case, from a marital dissolution that only affects the couple and their
children to an issue of constitutional validity, the role of the judicial branch is to resolve
disputes neutrally and fairly based on the facts that are presented in court. If they are doing
their job correctly, judges decide based on the law and the facts, not based on the possible
political ramifications of different results.
Sometimes the public, the parties and even the judges deciding a case are unhappy
with its outcome, because the law may not produce a result that accords with our personal
preferences. But if you ask those same people, when they have a case in court, whether they
want a judge to pre-decide it based on the judge’s views of what will look good in the
newspaper the next day, or, instead, whether they want a judge who will come to court with
an open mind, listen to their side of the case, and reach a fair decision – they will pick the
open mind and the fair decision – every time.
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Hon. Laura Denvir Stith
September 11, 2007
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No one wants to worry that the case will be decided against them because the other
side, or the other side’s lawyer, gave a large contribution to the judge’s election campaign,
or to those politicians who appointed or nominated the judge for office. Missourians
learned long ago, before they adopted the nonpartisan plan, that is exactly what can and
does happen when politics becomes a key factor in determining who will be a judge.
III.
HISTORY OF JUDICIAL SELECTION IN MISSOURI
When Missouri first became a state in 1821, it provided for appointment of judges by
the Governor. Just a few years later, the people of Missouri decided that they did not want
the executive branch of government deciding who would rule on the laws the executive
signed. The people wanted popular involvement in deciding who would be a judge. So, in
1848, Missouri adopted popular election of judges.
The problem was, elections did not achieve their desired result of keeping politics out
of choosing judges. Too often, political party machines decided who would be mayor,
senator, and even judge or governor.
The most notorious political machine was controlled by a Democrat from Kansas
City, "Boss" Tom Pendergast, who really did decide things in a smoke-filled room.
Pendergast wanted to control who became a judge so that the judges would decide in favor
of him and his friends.
In 1937, a judge Pendergast had supported in his election to the Supreme Court dared
to vote against Pendergast’s interests in an insurance case. As political punishment,
Pendergast vowed to oppose him in the 1938 election. He wanted to show the other judges
and office-holders that if they did not decide things his way, he could take them out of
office. By all reports, the 1938 Supreme Court primary campaign was ugly, negative and
corrupt, with patronage politics used on both sides. Disgusted by politicians' attempt to
control how the Supreme Court decided cases, the people of Missouri defeated Pendergast’s
candidate.
Missourians also decided that they were sick of politicians picking their judges.
Instead, the people of Missouri wanted judges to be picked based on their merit, and a group
of citizens, politicians and lawyers – principally members of Missouri's Republican Party –
proposed the Missouri nonpartisan court plan to do just that. Indeed, one of the plan's key
supporters was Rush Limbaugh, Sr., the grandfather of both my colleague on the Supreme
Court, Judge Steve Limbaugh, as well as his cousin, political commentator Rush Limbaugh.
When the legislature failed to put the nonpartisan plan on the ballot through the
referendum process, the people decided to go around the legislature. They collected
signatures throughout the state and put the plan on the ballot by initiative petition.
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Hon. Laura Denvir Stith
September 11, 2007
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The voters liked the plan and adopted it in November 1940, but the legislature did
not. It tried to pass a constitutional amendment to get rid of the plan just two years later.
The people of Missouri overwhelmingly rejected that amendment, voting more strongly in
favor of the nonpartisan plan than they had when they initially adopted it in 1940.
And, when Missourians adopted a new constitution in 1945, the nonpartisan plan was
a central feature of it, and has been ever since.
IV.
HOW DOES THE MISSOURI PLAN WORK?
Missouri’s Constitution provides for a nonpartisan Appellate Judicial Commission
with seven members – a judge of the Supreme Court, a lay person appointed by the
Governor from eastern, western and southern Missouri, and a lawyer elected by his or her
fellow lawyers from the same three regions of Missouri. The sole task of this Commission
is to review candidates for the Supreme Court or the Court of Appeals, and nominate three
highly qualified candidates to the Governor for his consideration for appointment to those
appellate courts.
When a vacancy occurs on the Supreme Court or the Court of Appeals, the
commissioners meet and choose three names to submit to the Governor. The Governor then
selects one of those three to become judge. After the person selected has been in office for
at least one year, the people of Missouri decide at the next general election whether that
judge should be retained in office.
Let’s break out these constitutional requirements, starting with the membership of the
Commission.
Why does it include a judge of the Supreme Court? A judge knows first-hand what
qualities are required to be a good judge -- qualities like impartiality, judicial temperament,
collegiality and fairness -- and knows what experience and expertise is needed. Supreme
Court judges also offer impartial leadership and so provide a stabilizing and unifying effect
on the Commission.
Why are lawyers on the Commission? People want judges to know the law and to be
knowledgeable and respected. Lawyers are in the best position to judge the legal abilities of
those who want to be a judge and to determine whether an applicant understands the proper
role of a judge in our democracy. And, to be sure no one part of the state dominates, each
geographic area of the state is ensured its views are represented.
Why three nonlawyer citizens, and why does the Governor pick them? Their role is
to judge the applicants as people, to see if they reflect the qualities that Missourians deem
important for judges, to see if they understand the role of a judge in our society. There
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Hon. Laura Denvir Stith
September 11, 2007
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needs to be a way to select the lay people, and the Governor makes appointments to many
important boards and commissions that serve the state. But the Governor was not given the
right to select just any lay people – they again have to reflect the geographic diversity of the
state and, along with the lawyer members, they are prohibited from holding political office
or an office in a political party.
Why does the Governor also get the final say as to who will be selected to serve as
judge? First, it reflects the respect of the people for the important role the Chief Executive
plays in Missouri. The Governor is elected by the people, and the people designed the plan
so he or she continues to have a say in who becomes a judge.
But the people of Missouri did not want the Governor to get to hand-pick judges.
They did not permit the Governor to propose any person for judicial office and just have the
Commission screen them later to see if they are qualified. They did not say that only
persons of the Governor’s political party or philosophical viewpoint need apply or can have
their names submitted to the Governor. No.
Instead, the people sought to minimize -- not maximize -- politics in judicial
selection. They wanted stability in the judicial system. Businesses, families, all
Missourians, depend on courts being even, fair, just, deliberate and consistent no matter who
holds the other offices in the state. To make this vision a reality, the people of Missouri
established the Appellate Judicial Commission to nominate three well-qualified people for
the Governor's consideration, and then the Governor has the responsibility to select which of
these three will serve the people of Missouri as a judge.
After the judge has been in office for at least one year, the people then get to vote
whether a judge should be retained in office. I have heard criticisms recently that this
feature of the plan does not work, for few judges have been voted out of office. But, I
believe that view does not fully consider the nature of the retention vote.
A retention election is not a vote on the individual’s qualifications for the position in
the same way that we vote in a contested political election. That is the system the people
rejected in adopting the nonpartisan plan. A retention election is not to get rid of bad,
unethical judges, either. Those are removed by a system that takes away their license and
requires them to resign if they engage in any serious legal or ethical misconduct.
No, the reason for the retention election, I believe, is to make it clear that, in the last
instance, the people of Missouri are in charge. Judges, governors, commissioners, all of
them, know that they should do their job fairly and properly, because if they do not, and a
judge is sworn in who shows himself or herself to be unqualified, the people can vote that
person out.
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Hon. Laura Denvir Stith
September 11, 2007
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V.
LAW GOVERNING THE APPELLATE JUDICIAL COMMISSION
So, why does the Constitution provide that the Commission will be governed by rules
set by the Supreme Court? Why not just let the legislature govern it by statute? And in
particular, why doesn't the Sunshine Law apply?
The answer lies in the nature of the plan adopted by the people of Missouri. To
minimize political influence on the judiciary, the people of Missouri gave a role to the
Governor, a role to the Supreme Court, and a role to citizens through membership on the
commission and, later, through the retention vote.
If the legislature could adopt statutes affecting how the Commission did its job, then
it would upset this careful balance. What if the legislature passed a statute stating that only
former legislators could apply to be a judge? Or only persons of a particular political party,
or who had contributed a certain amount to campaigns, or who had made particular pledges
about their views of the law? This would be improper and would defeat the plan's purpose
of minimizing political influence over judges.
The decision to grant rule-making authority to the Supreme Court was not made
lightly, however. The issue was debated extensively in the 1943-44 Missouri Constitutional
Convention, with some delegates arguing that rule-making authority should be vested in the
General Assembly rather than in the Supreme Court. But those arguments were rejected by
the Convention, which concluded that the authority was best placed in the hands of a body
that had greater expertise in law and was removed from the pressures of partisan politics.
That is why the constitution requires that the Commission “shall be administered . . . under
such rules as the Supreme Court shall promulgate.”
The Supreme Court adopted Rule 10 in its current form in 1972. For the last 35
years, this rule has governed how the Commission shall perform its constitutional duties.
The Commission has followed the same procedure successfully ever since to select 20
Supreme Court judges and more than 100 Court of Appeals judges – including, to name just
a few with whom you would be familiar, Judges Benton, Robertson, Holstein, Covington,
Price, Limbaugh and, most recently, Breckenridge. It is neutral and even-handed. And it
actually shares more information with the public than what is shared by the agencies subject
to the Sunshine Law.
The Sunshine Law provides that meetings of certain public governmental bodies
shall be open unless otherwise provided by law. The Sunshine Law itself provides that
personnel decisions may be made in closed meetings, and that the only information that
must be made public is the name, position, salary and dates of service for the person finally
selected. As the Commission merely winnows down a field of applicants to three nominees,
none of its work would be public under the usual Sunshine rules for personnel decisions.
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Hon. Laura Denvir Stith
September 11, 2007
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By contrast, under Rule 10, the Commission makes public the names and basic
biographical information of the three finalists and forwards their applications to the
Governor. The public and others then have a full opportunity to comment on their
qualifications before the Governor makes a final selection. This is a far more public manner
of selection than is used in selecting legislative leaders, which occurs in non-public
caucuses, or than is used to select the leaders of any of the state's executive branch agencies.
In fact, even Governor Blunt conducted his interviews and his decision-making process for
picking from the panel in private – and properly so.
Think back to when you last selected a new preacher for your church or
superintendent for your school, or even to the last time you applied for a job outside of the
legislature. The preliminary phases of all such searches for new personnel are conducted in
confidence.
And it is important that they stay confidential, for in that way, the broadest group of
qualified applicants can be considered. If the Commission publicized the list of judicial
applicants, some lawyers who are not qualified for the position might be encouraged to
apply merely to use the publicity of "being considered for a Supreme Court position" as a
way to sound more important and thereby recruit more clients. If the Commission
publicized the list, the mere fact that some lawyers or trial judges applied could be used
against them by political opponents, clients, law partners or legal competitors. I, myself,
when I first applied to be a judge, was asked by one of my law partners whether I should get
less money since I seemed willing to take less by applying to be a judge.
If you are a finalist, those are the breaks, but if you are just one of 20 or 30
applicants, that is unfair. It is particularly unfair because often those who are not finalists
are fine lawyers or trial judges, but for reasons that may relate to a desire for geographic
diversity or trial judge experience or other matters, they simply happened not to be a finalist
in that particular search.
Finally, I have heard it said that, even if the meeting would have been closed under
the Sunshine Law personnel exception, the Commission should have put up a notice that it
was meeting in executive session. This makes sense where some of a particular entity’s
meetings are open and some closed – then notice is necessary about which type of meeting
is being held.
But the Appellate Judicial Commission meets, by law, only in confidential executive
session, for its only function as a Commission is to meet to review the candidates for a
particular office, to make sure that only highly qualified Missourians are nominated to serve
the people of Missouri as an appellate court judge. It conducts no other business; all of its
work is in executive session. No practical benefit could be had for publicizing the specific
time, date and location of a meeting that, by law, has no portion open to the public.
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Hon. Laura Denvir Stith
September 11, 2007
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Furthermore, the notice provisions of Rule 10 speak only to giving commissioners
notice of meetings, which is fully consistent – and compliant – with the Sunshine Law
provision that, where another law “requires a manner of giving specific notice of a meeting,
hearing, or an intent to take action by a governmental body, compliance with that section
shall constitute compliance with the notice requirements of this section.”
In other words, the Sunshine Law itself says that where, as here, another law, like
Rule 10, provides a different method of giving notice, it should be followed.
And the Commission did follow it. It sent out a public notice of the opening on the
Supreme Court, and stated that interviews would be held and then the Commission would
meet in Columbia on a particular date. The Commission received 30 applications that
included answers to some 25 questions, extensive listing of experience, and up to three
writing samples, most of substantial length. It checked for disciplinary or other records,
looked into the reputation of the applicants and reviewed numerous references for each. And
its members conducted personal one-on-one interviews, totaling some two and one-half
hours for each candidate, before a lengthy meeting at which the Commission discussed and
winnowed the field of 30 down to three very qualified persons whose names it transmitted
to the Governor.
VI.
CONCLUSION
The nonpartisan model is a brilliant compromise, blending the best features of merit
screening, executive branch appointment and voter participation in judicial selection while
preserving judicial impartiality.
It minimizes the influence of politics in selecting judges for Missouri's appeals
courts, and trial courts in the state's more populous urban areas. This prevents the influx of
multimillion dollar elections that have become the norm in Illinois, Ohio and Texas, where
judges run for the Supreme Court and other judicial offices. The 2004 Illinois Supreme
Court election between two lawyers provided a prime example of what happens when
judges are elected statewide rather than chosen under a nonpartisan merit-selection system.
The campaigns were extremely partisan, extremely nasty and extremely expensive, with
more than $9 million dollars spent on the race – most of it from third party interest groups.
As one of my colleagues has said, by the end of the race, you would not have voted for
either of them for dogcatcher if there had been another choice.
In the end, the candidate backed by business groups won. And now, when that court
issues an opinion viewed as favorable to corporations, someone is sure to suggest it was
because corporations helped pay to get the judge elected. I hope and believe that no judge
decides cases based on such concerns, but the appearance of bias is almost as destructive of
trust in government as is bias itself.
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Hon. Laura Denvir Stith
September 11, 2007
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And the expense of partisan judicial campaigns continues to escalate – I am told the
race for Chief Justice in Michigan next year may well cost $20 million – and when people
and organizations who have a regular stake in the outcome of court cases make significant
financial contributions to those campaigns, it is much easier to find an "appearance of bias."
The Missouri Plan helps Missouri's courts avoid this appearance of bias. The
Missouri Plan also has kept Missouri's appeals courts free from the corruption, influencepeddling and overreaching that can be so destructive to the law and public confidence in
courts and that have occurred in other states.
Most of our counties are still small enough that local judge campaigns are
inexpensive and people can get to know their judges. But, for the Supreme Court, the Court
of Appeals, and trial courts in the five counties in the St. Louis and Kansas City
metropolitan areas, which are too large for everyone to know their judges personally, the
people of Missouri have decided that the nonpartisan plan set out in article V, section 25 of
Missouri’s Constitution is a better way to ensure they have qualified judges.
As you know, Governor Blunt recently made the Honorable Patricia Breckenridge his
first appointment to the Supreme Court of Missouri – thus completing the constitutional
roles of the Appellate Judicial Commission and the Governor in selecting a judge to fill
Judge Ronnie White’s seat on the Supreme Court.
I had the opportunity to serve with Judge Breckenridge during my tenure on the
Court of Appeals. Her judicial qualifications are well-known, her track record as a jurist
who decides cases based on the facts and the law is well-established, and each and every
member of the Court looks forward to serving with her.
Judge Breckenridge's appointment confirms what I have long known and continue to
believe: the Missouri Plan is right for the people of Missouri because it selects highly
qualified judges in the least political way and ultimately gives the people the final say.
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Hon. Laura Denvir Stith
September 11, 2007
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