The special interest groups attacking the Missouri Plan and trying exert political influence over Missouri's judges has announced they are backing off their support of Amendment 3, that would the non-partisan merit selection of judges.
But like Arnold Swarzenegger in a Terminator movie… they'll be back.
Through a press statement, the special interest supporters of Amendment 3 based their withdrawal on ballot summary language they claimed was biased. However, that very language was vetted and approved by an independent court. The judge hearing the case on the ballot language found that the language "was sufficient and fair".
The ballot summary reads:
Shall the Missouri Constitution be amended to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to:
- appoint a majority of the commission that selects these court nominees; and
- appoint all lawyers to the commission by removing the requirement that the governor's appointees be nonlawyers?
While the special interests publicly blamed this innocuous ballot language, perhaps the real reason they are backing down is that recent polling makes clear the public does not want partisan politics injected into our court system. This morning, Dave Drebes at Missouri Scout wrote that the special interest group's decision was "straightforward because the polling on the issue was said to be very difficult. One source involved in the issue says that polls on the issue ran around 20% favoring a change." That's right – the polls showed only 1-in-5 Missourians even considering a change to the nonpartisan court plan that worked well for more than 70 years.
Why should you support the plan and vote NO on Amendment 3?
(1) Special interest groups led by a few very wealthy individuals have spent millions trying to change the plan.
According to Drebes at MO Scout:
How much money have the David Humphreys and others blown on this continuing debacle? The answer is much, much, much more than $64,000 for sure. Calculating the cost – the initiative petition effort which came up short on signatures, the high-priced lobbying effort last session, the consultant fees to James Harris, and all other on-going consultants and salaries – of the year after year failures is hard, but I would guess it's in the millions.
Why would this small group of multi-millionaires spend millions of their own money to change the non-partisan, merit selection of judges if there wasn't something in it for them? These millionaires and their special interest money want to tilt the playing field to their advantage and against regular people like you and me.
(2) The Declaration of Independence and the Bill of Rights mean something.
We're familiar with many of the items in the list of Oppressions cited by our Founders to justify the Declaration of Independence. Most famous, of course, is "For imposing Taxes on us without our Consent." But do you know what was the very next Oppression listed?
"For depriving us in many cases, of the benefits of Trial by Jury"
This right was not only specifically listed in the Declaration of Independence, it was also ensured in the Bill of Rights as the 7th Amendment of the US Constitution. Yet, this fundamental right — the single fundamental liberty that evens the playing field between regular people like you and me against the world's largest corporations — has been constantly under attack by the same folks that are trying to change the Missouri Court Plan.
If your judge is influenced – or worse, beholden – to political pressure or special interest groups, can you ever really get a fair trial? No.
(3) No one wants crocodiles in their bathtub.
Former Supreme Court Justice Sandra Day O'Connor – appointed by Ronald Reagan and the first female member of the Supreme Court – spoke to students at the University of Missouri School of Law about partisan influence on the judiciary. Justice O'Connor said:
"If judges are subject to regular and competitive elections, they cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects. As the late California Supreme Court Justice Otto Kaus described it, ignoring the electoral pressure would be 'like ignoring a crocodile in your bathtub.'"
Sandra Day O'Connor, The Essentials and Expendables of the Missouri Plan, 74 Mo. L. Rev. 479, 487 (2009).
Whether partisan elections or political appointment, it would be impossible for judges to completely ignore the political pressures and outside influences on them. Justice should be based on the facts and the law – not political influence, special interests, or some other crocodile in the bathtub.
(4) George Brett wants a fair umpire.
George Brett was one of my childhood heroes. He was, without a doubt, the best hitter I've ever seen play in person. But what does George Brett have to do with the Missouri Plan? Well, George Brett knows the critical importance of a fair umpire. When Johnson County, Kansas wanted to change the way its judges were selected in 2008, George Brett said this:
"Let's keep politics and money out of the courts. On the baseball field, all I want is a fair umpire. Umpires are like judges, and I don't want an umpire or judge who owes political favors tot he other team."
An independent judiciary – a judiciary free of undue political influence, cronyism, and special interests – is the cornerstone and linchpin for our constitutional freedoms. Our freedom and liberty are threatened If cases are influenced by special interests and political influence instead of simply the facts and the law.
What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected.
What happens when the person violating your rights has a lobbying team? What happens when the person violating your rights has political influence? What happens when your rights might be affected not just by the constitution, but some political influence?
Judicial independence free from political cronyism and special interest influence is critical to protect our freedom, liberty and to limit excessive use of governmental powers.
(5) The Missouri Plan Works.
The current plan – known as The Missouri Plan or The Missouri Non-Partisan Court Plan – is based on independent merit-selection rather than political appointment or election. The Missouri Plan was enacted after Missouri citizens voted to amend the constitution in the 1940s. The Missouri Plan is one for the people and by the people. The Missouri Non-Partisan Court Plan was adopted because citizens were fed up with political cronyism and politics in the courthouse. Namely, notorious "Boss Tom" Pendergast, who ran the Democratic Party in Missouri during the 1920s and 1930s, also controlled the judiciary.
Rush Limbaugh's grandfather — "the original" Rush Limbaugh — successfully led the citizen's initiative petition drive to end partisan control of the judiciary in favor of merit selection of judges. Under the Missouri Plan, appellate judges and trial judges in metropolitan counties electing to participate in the Missouri Plan, judges are selected by a commission consisting of 3 attorneys elected by members of the Missouri Bar Association; 3 citizen members appointed by the governor (serving 6-year staggered terms); and a currently sitting judge. The panel selects from those submitting applications themselves or nominated by others for the vacant position. The process has worked essentially the same way for more than 50 years and led the country as more than 30 other states have adopted the Missouri Non-Partisan Court Plan in one form or another.
Because of the Missouri Plan's more than 70 years of success, a broad coalition has formed in support of the Missouri Plan and to keep politics out of the courtroom. This coalition includes not only plaintiff trial lawyers (like me), but also defense lawyers, prosecutors, "biglaw" firms, small and solo practice attorneys, current and former Supreme Court judges appointed by both Democratic and Republican governors, and citizen groups including AARP Missouri, Committee for Economic Development and local Chambers of Commerce including the Blue Springs Chamber of Commerce and the Greater Kansas City Chamber of Commerce.
James Heeter, president and CEO of the Greater Kansas City Chamber of Commerce said:
"Partisan politics and campaign fundraising have no place in our judicial selection process. I make that statement both as head of Kansas City's largest regional business organization and as a longtime attorney."
"Under the Missouri Court Plan, the selection process is more likely to produce qualified and competent judges, leading to a more stable, efficient and consistent judicial system, a system on which the business community and the general public rely."
(6) Missouri citizens have consistently supported the nonpartisan court plan.
Missouri citizens have a history of supporting the Missouri Court Plan — beginning with the citizen initiative to create the plan in the 1940s. Since then, the Missouri Plan has been expanded – most recently in 2008 when Green County (Springfield area) voted to replace election of local trial judges with merit selection under the Missouri Nonpartisan Court Plan. Numerous editorials have been written in support of the Missouri Court Plan and against the proposed changes that would insert politics into the courtroom.
According to the web site Justice At Stake, 71% of Missourians were happy with the current judicial selection system in a 2007 survey. Even more, 73%, wanted judges to be independent of elected officials like the governor and state legislature. Only 1-in-50 respondents saw changing the way judges are selected as a top priority for state government.*
A survey by the conservative Federalist Society that same year found 68% of respondents had trust and confidence that the Missouri Supreme Court based decisions on the law rather than on political beliefs.
An apolitical, independent judiciary comprised of qualified judges is critical to upholding the rule of law and individual rights of Freedom and Liberty. Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democratic vs. Republican issues. There is enough politics in the legislative and executive branches, we should keep politics out of our courts. Cases should be decided on the fact and the law, not by partisan politics funded by special interest groups.
How You Can Help
While the special interests vying to the destroy the Court Plan have said they're standing down, Amendment 3 remains on the ballot and will subject to vote in November. Please vote NO on Amendment 3 and encourage your friends and relatives to vote NO on Amendment 3.
The special interests wanting to exert their influence over Missouri courts will be back… and with a vengence. James Harris, one of the special interest group leaders, said "We're going to explore more substantive changes. We are not going away." Rich Chrismer, another spokesman for the special interest group, said they will "preserve their resources for meaningful judicial reform and begin discussions about alternative options for… changing the way judges are selected in Missouri." These alternative options would include a proposal for all judges in Missouri to be directly elected.
Update 10/4/2012: Retired Supreme Court Judge Ray Price (my old boss) told the Carriage Club in Kansas City: "What these people really want is the direct election of judges. They think they can buy judges. That repulses me. I think that's flat wrong." Me too.
Visit The Missouri Plan to find out more about the plan and how you can support the nonpartisan, merit selection of judges. You can request a speaker to talk with your civic group, church, or other organization about the Missouri Plan. You can volunteer to speak to various groups about the Missouri Plan. You can also support the Missouri plan on Facebook and Twitter.
[More on the Missouri Court Plan]
- Group drops campaign for judicial selection reform in Missouri [Elizabeth Crisp at St. Louis Post-Dispatch]
- George Brett, Missouri Constitutional Amendment 3, & Judicial Indpendence
- Sen. Will Kraus Understands Why Voters Are "Very Frustrated" With His Vote Against Mo Court Plan
- Freedom, Liberty & The 4th of July: 2012
- The Missouri Plan: Non-Partisan, Merit-Selection of Judges
- Did You Know… Super PACs Are Targeting Judicial Elections?
(c) Copyright 2012 Brett A. Emison
Follow @BrettEmison on Twitter.
Brett Emison is currently a partner at Langdon & Emison, a firm dedicated to helping injured victims across the country from their primary office near Kansas City. Mainly focusing on catastrophic injury and death cases as well as complex mass tort and dangerous drug cases, Mr. Emison often deals with automotive defects, automobile crashes, railroad crossing accidents (train accidents), trucking accidents, dangerous and defective drugs, defective medical devices.
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