As debate looms in the Missouri Senate on a constitutional amendment altering the Missouri Nonpartisan Court Plan, The Missouri Bar is reiterating its opposition to changing the way the state chooses some of its judges.
Bar President Tom Burke and President-elect Skip Walther held a press conference on Tuesday morning to skewer proposed changes offered in House Joint Resolution 10. The two attorneys portrayed the alterations as a way of injecting politics into the plan and giving more power over judicial selection to the governor.
“HJR 10 would put the Missouri Nonpartisan Court Plan in the hands of the state Legislature and lobbyists and special interest groups and their money,” Burke said. “HJR 10 would make a mockery of separation of powers, obliterating the sets of checks and balances among the branches of government.”
Rep. Stanley Cox’s resolution narrowly passed the Missouri House earlier this month, sending the measure to the Senate.
Cox’s resolution would, among other things, provide the governor with another judicial panel if he does not approve of the nominees proposed to him. Additionally, the panel itself would increase from three nominees to four.
Other major elements of the resolution include adding a nonlawyer to the Appellate Judicial Commission, giving lay members concurrent – as opposed to staggered – terms, requiring Senate approval for gubernatorial appointees to the commission and prompting the disclosure of all applicants to a judicial vacancy to the Supreme Court’s Web site.
Cox said his resolution would provide more public input and make the judge-selection process less secretive.
“Right now it’s a secret method of choosing people,” Cox said. “Until those three people are presented to the governor, nobody except people involved in the process and their friends know who those people are. So this opens the process.”
Walther and Burke said the provisions would provide the Legislature and the governor with more power. In particular, they pointed to a provision they say would allow the General Assembly to regulate how the selection commissions do their business.
A line in Cox’s resolution states that all commissions and procedures for elections “shall be held and regulated, under such rules as the commission shall establish so long as such rules are in accordance with the provisions of this article and not superseded by subsequently enacted legislation.”
“Under HJR10, as we interpret it, the Legislature will get to set the ground rules,” Walther said. “And we all know that the Legislature is made up exclusively of politicians. We all know that politics has no business in our courtrooms. And HJR 10 would allow the General Assembly – the senators and the representatives – to define how we select judges. And that is an absolutely unacceptable situation for us.”
Cox, R-Sedalia, said that provision was included in the resolution in order to prevent the commission from forming rules that “they’re more comfortable with.”
“This would not allow them to subvert the process by changing the rules in such a way that they again would capture the dominance of the system,” Cox said.
The bar’s press conference comes as the plan could be debated in the Senate for the first time.
Senate President Pro Tem Charlie Shields, R-St. Joseph, directed the resolution to the Committee on Government Accountability and Fiscal Oversight. The committee passed a similar measure sponsored by Sen. Jim Lembke, R-St. Louis County, earlier this year.
While Shields says the resolution will probably get to the floor for debate, he said the measure has a questionable chance of passing. Every Democrat and a few Republicans – such as Sen. Matt Bartle, R-Lee’s Summit – have expressed skepticism or opposition to altering the plan.
“I would think that it probably has problems in its present form of passing out of this body,” Shields said. “A lot of our members that are members of the bar probably are going to have objections to it. We’ll see.” Shields himself has not taken a position on the measure.
Walther said the resolution’s trajectory was “a concern.”
“That’s … in large part why we’re having this conference today,” Walther said. “Because we feel it’s our mission to educate the people of this state, as well as the members of the General Assembly, about the flaws in this legislation so that this effort doesn’t go anywhere.”