Bar groups see Court Plan attack in judge recusal bill

Missouri judges already are barred from hearing cases involving people they represented while in private practice or matters they previously addressed on another court. So why are bar groups so opposed to a bill that would prevent judges from hearing cases involving the lawyers who nominated them to the bench?

Missouri State Sen. Brad Lager, on right, listens as lobbyist Randy Scherr argues against an unrelated bill Lager sponsored during the last legislative session. Photo by Karen Elshout

The answer has less to do with the wording of the bill than with its source. At a hearing last Monday before the Senate Judiciary Committee, its sponsor, Sen. Brad Lager, R-Savannah, pitched the bill as a common-sense way to prevent the appearance of impropriety among judges on Missouri Plan courts.

Lager also made no bones about his feelings about the court plan, which he characterized as being run by a “majority of lawyers.”

“I understand why the clique doesn’t want to change the process,” he told the committee, adding: “I’m just trying to figure out, if we’re not going to change the court plan, then what is going to make sure it is as fair as possible.”

Until last year, the Missouri Legislature had considered changes to the court plan almost every session since 2004, culminating in a resolution in 2012 that asked voters to make changes to its structure. The ballot measure was resoundingly defeated.

Since then, some lawmakers still contend that the plan is dominated by trial lawyers but have shown little appetite for additional legislation. Lager’s bill is the only bill currently proposed that would affect the court plan, even if it is an indirect attack.

“I understand the senator’s concern about the Nonpartisan Court Plan as he’s articulated for the last several years,” David Klarich, a lobbyist who appeared on behalf of both the Missouri Association of Trial Attorneys and the Missouri Organization of Defense Lawyers, told the committee.

Lager’s bill would disqualify judges on appellate courts and circuit courts under the court plan from hearing cases involving attorneys who sat on the judicial commission that nominated the judge. Appellate judges are nominated by the Appellate Judicial Commission, which comprises three attorneys, three nonlawyers and the chief justice of the Missouri Supreme Court. Judges in Jackson, Platte, Clay, St. Louis and Greene counties and the city of St. Louis are nominated by circuit commissions, which comprise two lawyers, two nonlawyers and the chief judge of the local appellate district.

The commissions pick three candidates for judiciary vacancies. The governor makes the final appointment.

Lawmakers considered a similar bill last year, though it came late in session and never moved out of committee. Last year’s proposal applied the ban to anyone from the commission member’s firm — a provision that would have prevented dozens or even hundreds of lawyers from ever appearing before that judge. Lager said this year’s effort is limited to just the lawyers who serve on the commission.

Despite that reassurance, Klarich said the language of the bill is “flawed” and still might implicate other lawyers at the commission member’s firm. Lager said after the hearing that he intends to make some changes to the bill, though he didn’t specify what changes.

Klarich also noted that a judge could suffer a “disqualification in perpetuity.” Someone named to the associate bench, for instance, would be barred from hearing cases from lawyers on that first commission for their rest of their careers, even if they moved to a higher court.

“You could be a Supreme Court judge and still be disqualified,” he said.

Erik Bergmanis, vice president of The Missouri Bar, told the committee that the proposal could be an unconstitutional intrusion into the Missouri Supreme Court’s supervisory powers over judges. For that matter, Bergmanis said, court rules already require judges to recuse themselves when conflicts arise.

“The judges I’ve seen in our state have quickly done so,” he said. “There’s a lot at risk if they don’t.”

The committee took no immediate action on the bill. The committee’s chairman, Sen. Bob Dixon, R-Springfield, said the day after the hearing that he hadn’t yet talked to the committee members and didn’t know when or if it would come to a vote.

The bill is SB489.