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UPDATED: House approves measure, Nonpartisan Court Plan to go before voters

Missouri Bar President Lynn Ann Vogel reacts as the Missouri House votes 84-71 Thursday to change the Nonpartisan Court Plan on Thursday. The proposed change now will go before voters. Photo by Scott Lauck

The Missouri Legislature has made it clear what it thinks of the Nonpartisan Court Plan. The question now: What will voters have to say?

The Missouri House on Thursday gave a final vote to a resolution that would give sitting governors more control over their appointees to the commission that nominates judges to the appellate courts. As a result, voters will have their first chance in 36 years to weigh in on the court plan.

Whether they elect to do so probably will depend almost entirely on how the issue is framed in the coming election campaign — a campaign that is already reflected in the language of those in favor of and opposed to change.

“This fall, the people of Missouri will have the opportunity to defend justice for all by rejecting Jefferson City lawmakers’ efforts to amend our constitution to produce appellate judges that are beholden to politics rather than ruling impartially on the law,” Missouri Bar President Lynn Ann Vogel said in a press release shortly after the House vote.

But James Harris, director of Better Courts for Missouri, a group that has pushed for years to alter or repeal the court plan, said the new system wouldn’t be that much different from the old.

“I would challenge anyone to say this is anything other than a very modest update, like those that have been adopted or incorporated in other states,” he said.

Currently, the Appellate Judicial Commission comprises three citizens chosen by the governor, three lawyers elected by members of The Missouri Bar, and the chief justice of the Supreme Court.

The measure would allow the governor, over the course of a single four-year term, to pick four of the seven voting members of the commission. The bar would continue to elect the remaining three members. The commission also would include a nonvoting former judge chosen by the Supreme Court.

The proposal also requires the commission to send the governor four nominees instead of three.

The proposed constitutional amendment would go before voters on the November ballot, unless a special election is called.

‘A bigger say’

Proponents of the measure say it’s better to have an elected governor, rather than lawyers, responsible for picking judges. Asked what average Missouri voters would see themselves getting out of the proposal, House Speaker Steven Tilley, R-Perryville, said, “They get to determine, do lawyers who have their own agendas get to pick who our judges are, or does the governor, which they elected, have a bigger say?”

But even Tilley acknowledged that the proposal wasn’t universally accepted, even in his party. Although the House has 106 Republicans, the final vote was 84-71, with 20 Republicans voting against it. Only one Democrat voted for it.

“You have a lot of folks over there on the majority side who do not want to see that go to the ballot and do not want to see those changes take place,” said House Minority Leader Mike Talboy, D-Kansas City.

The vote was closer than it sounds. The measure needed 82 votes to pass.

Outside groups that support merit-selection systems for judges do see the proposed change as a big deal.

K.O. Myers, director of research and programs for the American Judicature Society, said he wasn’t aware of another state that gives governors so much say in the process (apart from a handful of states where the governor himself has established commissions through executive order to help him make appointments).

“In terms of the ability to appoint all of those [commissioners] in one swoop, that sounds to me like it would stand out,” Myers said.

The last time the Missouri Nonpartisan Court Plan was altered was in 1976, as part of an overhaul of the entire judiciary. The change that year allowed the nominating commission to pick the judge if the governor fails to do so within 60 days.

A national model

The plan was originally approved by voters in 1940 and became a national model for judicial selection, leading to such systems being generally known as “Missouri Plans.” So what would it mean for Missouri’s “Missouri Plan” to be altered?

“I think it does have a symbolic weight to it that would be very energizing to people who [are] trying to make these changes in other states,” Myers said.

According to the National Center for State Courts, at least 10 states besides Missouri considered legislation this or last year that would have altered a merit-selection system.

Justice at Stake, a group that supports the use of merit selection for judges nationwide, published a poll in 2007 that showed Missourians overall didn’t think the state’s court system was broken and didn’t support politicizing the judiciary. Charlie Hall, a spokesman for Justice at Stake, said he thinks that’s still an accurate representation of voters’ feelings.

But that could cut both ways, depending on the level of advertising and the way the issue is discussed. Hall said the relatively small changes to the plan could be seen as “technical” changes that wouldn’t scare voters. Defenders of the current plan, he said, would be well-advised to speak in broad strokes about the effect it would have.

“Elections like this tend to take place in a vacuum,” he said. “Somebody’s going to fill the vacuum better than the other side.”

George Connor is a political science professor at Missouri State University in Springfield, where in 2008 voters moved from elected circuit judges to the Nonpartisan Court Plan. (The Legislature’s proposal doesn’t change the structure of the circuit commissions, which are used to help select trial judges in metropolitan areas.)

Connor said voters in Greene County probably didn’t fully understand the system they voted in place, something that could happen at the state level as well. If the bar speaks forcefully against the amendment, he said, the proposed change would probably fail. If not, he said, “it can be framed in a way that knee-jerk voters will respond in a knee-jerk fashion.”

The resolution is SJR51.

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