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According to a report in the St. Louis Post-Dispatch, things are getting a bit confusing in Missouri.  We’ve reported before about ballot initiative efforts related to changing Missouri’s Merit Selection plan.  That effort focused on eliminating the nominating commission and giving the governor the power to appoint any one of his choosing.  Now, the same group behind that effort has filed a second ballot initiative that conflicts with the first and seeks to have voters directly elect judges.

It’s not clear why the second initiative has been filed, and the group behind the effort — ShowMe Better Courts — has not explained which new plan it would prefer.  In addition, as the Post-Dispatch reports, that proponents of the current selection system have criticized ShowMe Better Courts “for failing to point to any real problems with Missouri’s judicial system, in terms of bad judges or bad rulings.”

We think this muddled effort should raise the suspicions of the Missouri public.  Information and honest discussion are critical in reform efforts, but those pushing for change in Missouri won’t say what they really want.

An editorial in the St. Louis Post-Dispatch echoes a warning sounded by Missouri Chief Justice William Ray Price, Jr. last week to the Missouri Bar Association.  Chief Justice Price urged the assembled lawyers to work to maintain the independence of the judiciary.  Without such a defense, he argued:

[T]he judicial branch of government quickly could erode into a commodity that is “bought and sold by the political power brokers of the moment.”

The chief justice warned of special interests “who demand that the courts rule on the basis of their particular ideological views.”

“For them, justice is determined by whether their special cause wins,” he said. “(O)ften they see no further than their own interest” and “know no limits to the extent they will fight or spend money to get their way,” even though it “may destroy the legal system in the process.”

Chief Justice Price urged the lawyers to educate the public about the need for an independent judiciary:

The task, he said, is to “focus the attention of the people of Missouri on the fact that, when they need a lawyer or when they must appear before a judge, the courtroom should not already be tilted against them by some special interest, no matter how rich, no matter how powerful.”

The editorial agreed with the Chief Justice’s assessment, calling it “right on the mark.”  Although the Chief Justice did not comment on the various proposals that have been put forth to amend Missouri’s Merit Selection system, the editorial writers called the efforts to change the system the “greatest single political threat to justice in Missouri.”

The editorial called for lawyers and nonlawyers to work together to preserve Missouri’s judicial selection system.  This makes sense to us — judicial selection is an issue that affects everyone.  That’s why we’ve been working to promote a dialogue in Pennsylvania about whether to change the way we select appellate judges and move from an electoral system to Merit Selection.

An editorial in the St. Louis Dispatch praises the work of judicial nominating commissions in Missouri and recommends that newly appointed commissioners — especially those who actively oppose Merit Selection — seek the advice of long-serving commissioners:

Take Stephen F. Doss, for example. He’s a Republican businessman who is serving for the second time on the selection commission for the St. Louis Circuit Court. . . .

Mr. Doss says he is a true believer in direct democracy, but he has come to believe that the Missouri Plan’s merit selection process works better in choosing judges.

He considers the process to be genuinely non-partisan. He notes that many judges appointed to the circuit court bench by the governor of one party later have been promoted to appellate judgeships by a governor of another party.

He says that all commission members have the opportunity to be full and equal participants in the process. “When people get in that room, they try to be good citizens,” he said.

Judges who’ve gone through the process also have good things to say about the work of the nominating commissions:

Lay members who worry that deliberations may be dominated by the lawyers or judges would do well to visit with the appellate court judges who have participated in the process. They speak glowingly about how judges, lawyers and lay people work collegially and productively, reaching consensus on candidates an overwhelming majority of the time.

These assessments are encouraging testaments to the important role of lay citizens on judicial nominating commissions.  We hope Pennsylvanians will get the opportunity to choose to use a judicial nominating commission for the appellate courts and see first hand how well it works.

According to the News-Leader, two opponents of Missouri’s Merit Selection plan are taking that old adage to heart.  Although John Gentry and Sally Hargis opposed the campaign to bring Merit Selection to Greene County, MO this year, they each applied to serve on the Greene County nominating commission.  Governor Matt Blunt appointed Ms. Hargis to the local commission, but asked Mr. Gentry to serve on the appellate court nominating commission.  Mr. Gentry agreed.

It’s interesting that despite their opposition to the system, these individuals will now become part of it.  We wonder whether this will change their perceptions about how the system works.  If not, will they continue to condemn a system of which they are an integral part?

As we reported last week, voters in Greene County, Missouri voted this year to switch from electing their local judges to a Merit Selection system.  Thomas M. Burke, President of the Missouri Bar, analyzes the decision in an editorial in the News-Leader:

Why switch now? While a number of reasons were presented to voters, the most compelling stem from the campaigns that judicial candidates must run to gain name recognition. Greene County has a population of about 260,000 and is one of Missouri’s fastest growing counties. Partisan elections of judges were becoming more expensive to run. In a recent Republican primary about $200,000 was raised by candidates and their supporters.

Lawyers who regularly appear in front of these judges are faced with a no-win situation, frequently being asked to donate to a judge’s campaign. Having judges, businesses and other groups donate to the election of a judge who may decide your case creates the appearance of impropriety and raises suspicions of influence on judicial decisions.

Burke’s piece offers a clear assessment of the reasons the campaign for Merit Selection was successful in Greene County.  He concisely explains that this isn’t a philosophical or theoretical issue, but a practical question based on the facts of what judicial elections have become:

Greene County citizens are to be commended — not because their judges will be selected under the nonpartisan court plan, but for recognizing the potential danger to the integrity of the courts in their growing community.

This approach makes sense.  Let the public take a good look at judicial elections and let the voters decide whether it still makes sense to choose judges this way.

Congratulations to Greene County, MO which yesterday voted to adopt a Merit Selection plan for local judges. KY3 News reports that Greene County is the fourth Missouri county to adopt the plan for its local judges.

And congratulations to Johnson County, KS where voters defeated an effort to change from a Merit Selection system to an electoral system.  The Kansas City Star reports that unofficial results demonstrate that voters “overwhelmingly” voted against the measure to change the way judges are selected. Greg Musil, working with Johnson Countians for Justice, to defeat the ballot measure had this reaction:

Our message from the start was the system is not broken and the change to a political system bring so many risks into our efforts to dispense justice that voters ought to reject it. . . . Sixty percent of the voters figured that out and said we’re not going to turn our judges into political animals.

The critical element of these stories is that voter in Johnson County and Greene County were given the opportunity to make the decision about judicial selection.  That’s what we’ve been asking for in Pennsylvania — that Pennsylvania voters be given the chance to weigh in on whether to change the way we pick our appellate court judges.  We hope they will get that chance.

The News-Leader in Springfield, MO, has come out in favor of Merit Selection for Greene County.  Describing the reasons the editorial board is supporting the change from partisan elections, the editorial first quotes a former local attorney:

[T]he current partisan system for electing judges in Greene County just doesn’t feel right. . . .  ‘It puts lawyers in a really bad position,’ [Shawn] Askinosie said, ‘and, frankly, it puts judges in a really bad position, too.’

That opinion, from a lawyer-turned-businessman who really had nothing to gain when he recently decided to speak to our Community Editorial Advisory Board, is not to be dismissed lightly.

It helped sway us toward support for a new way of selecting judges in Greene County.

Although we are advocating reform only at the appellate level in Pennsylvania, we are watching the events in Greene County.  We wish the reformers luck in their upcoming referendum, and we hope Pennsylvanians will soon get their own chance to weigh in on how we should select appellate judges.

The Missouri Plan long has served as a model for other states seeking to design Merit Selection systems.  In recent years, there has been some conflict between the Governor and the nominating commission about the lists of recommended candidates.  This week, Republican gubernatorial candidate Kenny Hulshof proposed changing the composition of the nominating commission.

An Associated Press piece in the Columbia Missourian reports that Hulsof believes the nominating commission is dominated by plaintiffs’ trial lawyers.  Hulshof’s plan calls for replacing the three attorney seats, filled by election among lawyers in different geographic regions, with three retired judges.  He also proposes eliminating the seat for the Chief Justice of the state and replacing it with a retired Supreme Court justice.

In addition, Hulshof argues that the commission should be required to submit five names to the Governor, rather than three and he proposes giving the Governor the power to request a second list.  Under this proposal, If no one on either list is acceptable to the Governor, the Governor may nominate anyone of his or her choosing, subject to Senate confirmation.  This is a significant change from the current system, where the Governor’s rejection of the list of nominees results in an appointment made by the nominating commission.

Hulshof’s opponent in the governor’s race, Jay Nixon, claims the new proposal would make judicial selection even more political.  He recommends making some changes to the system, such as publicizing the names of all applicants considered by the commission, but opposes the changes to the nominating commission and the procedural changes recommended by Hulshof.

We have concerns about the Hulshof proposal, particularly the provisions related to the Governor’s selection of a nominee.  We will be watching what happens and keeping you posted. Visit Gavel Grab for more on this story.

“Vote Yes for Question 1,” a coalition of reform-minded Missourians who want to improve how Greene County selects its judges, has gathered far more than the 12,000 signatures required to put their initiative on the ballot. If voters vote yes for Question 1 this November, Greene County will adopt the Merit Selection system known as the Missouri Plan. Judge John Holstein, former chief justice of the Missouri Supreme Court, endorses the Missouri Plan and explains why it is important to avoid conflicts of interest in the courtroom:

“[D]o you know how much money your opposing counsel or the opposing party donated to that judge in the last election?” he asked. “In the partisan system, that’s all permissible and I tell you it’s a gnawing feeling in the gut of both the judge and the attorneys.”

By eliminating expensive election campaigns, the Missouri Plan makes sure that the court is accessible to potential judges who are qualified to serve, but may not have the deep pockets to support such a campaign.

Also eliminated by the Missouri Plan is the possibility that candidates will be able to buy their way to the bench by launching flashy and expensive election campaigns, supporters say.  “If we don’t want a system where the wealthy, or those who have access to the wealthy, are able to become judges, I think the preferable system is the nonpartisan selection system,” Holstein said.

We’re glad folks in Greene County get to decide how they want to select their judges, and we hope Pennsylvanians will soon get a chance to decide whether to implement a Merit Selection system for the appellate courts.

Gordon L. Doerfer, president of the American Judicature Society (AJS), has issued a statement in response to the Wall Street Journal’s most recent attack on Merit Selection. In this statement, AJS sets the record straight about the composition of judicial nominating commissions and the history of success of state Merit Selection systems.

AJS points out that the Journal’s recent characterization of the Florida and Missouri nominating commissions as dominated by plaintiffs’ trial lawyers is wrong. In fact, lawyers of all types are involved in selecting or suggesting lawyer members of these commissions. AJS goes on to explain that a recent survey of corporate attorneys revealed that they rank state courts selected through Merit Selection uniformly higher than state courts selected by partisan elections. It is a myth that judicial nominating commissions are dominated by a particular constituency or segment of the bar.  In fact, most nominating commissions include several seats for nonlawyers.

The cornerstone of Merit Selection is the use of a nominating commission to screen and evaluate candidates. This is the special element lacking in both elective and purely appointive systems.

A blanket condemnation of judicial nominating commissions is irresponsible and misleading. It also demeans the work of the dedicated commissioners, all of whom serve without compensation, and calls into questions the judgment of the many governors of all political parties who rely upon them to nominate the best qualified judges.

Thanks, AJS, for setting the record straight about judicial nominating commissions.