Feb 02 2008
“It’s time to end judicial elections on the state’s highest courts.”
As a scandal unfolds in the West Virginia Supreme Court, an editorial in the Christian Science Monitor looks to Missouri as a model for freeing state judiciaries from the influence of big campaign donations. You can read the entire editorial here.
Tags: editorial, Merit Selection, Missouri, Missouri Plan, News, West Virginia
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Imagine a legal system wherein a judge can decide a case in which he is the defendant, despite the fact that more than a dozen facially independent judges were authorized by statute and available to hear the case [this is a clear violation of the Fourteenth Amendment: Tumey v. Ohio, 273 U.S. 510 (1927)]. Now, imagine a judicial discipline commission so corrupt that they refuse to discipline that judge.
Welcome to the Missouri Plan.
This scenario actually happened — recently — in Colorado. Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam).
In a system where judges are elected, the judges’ opponents would bring misconduct of incumbent judges to the attention of the public. Judicial disciplinary systems actually function, as the disciplinary boards have no loyalty to the incumbents.
Thanks for your comment. To be clear, although the proposed Merit Selection plan for Pennsylvania’s appellate courts is modeled on the Missouri Plan, it is not exactly the same and in fact includes a uniquely designed nominating commission. In addition, we agree that it is very important in any judicial system, whether elective, appointive, or merit-selected, to have a strong, independent judicial discipline system to address charges of unethical behavior by judges.
Thank you for your warm welcome, Shira.
The flaws in the Colorado and federal systems of judicial discipline are that they are almost as transparent as the conclave system for selecting Popes, and it is arguably easier to remove a sitting Pope from office. There is zero accountability, which is an engraved invitation to despotism. Before you propose “throwing the baby out with the bathwater,” you need to understand the downsides of your proposal, and learn from other states’ mistakes. As the dour Scottish saying goes, “Be careful what you wish for; you just might get it.”
Based on our experience here and extensive study of the problem (visit http://www.knowyourcourts.com/JDC/JDC.htm and http://www.knowyourcourts.com/FedJD/FedJD.htm, the only way accountability can be achieved under a Missouri Plan scheme is to have an absolutely public and scrupulously transparent system of judicial discipline, where offending judges can be removed from office upon a trial on the merits before an independent jury of citizens — and aggrieved individuals can prosecute grievances where state authorities refuse to.
The bottom-line question I have for you is, is our federal system really any better than the one you have? How do you propose to rid the courts of petty tyrants like CJ Edward Nottingham of the District of Colorado (see http://www.knowyourcourts.com/Nottingham/Nottingham.htm; he made the news for his Eliot Spitzer-esque nocturnal dalliances, but the story is much more perverse)?