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Judges' selection plan generates opposition

Friday, October 5, 2012

By James R. Campbell

Nevada Daily Mail

State Rep. Barney Fisher, Sen. David Pearce, a prominent Nevada attorney and a State Bar Association spokeswoman state emphatic opposition to proposed Constitutional Amendment No. 3, which would substantially change the Missouri Non-Partisan Court Plan under which state supreme court and appellate court judges are chosen.

According to the "Fair ballot language" from the Missouri Secretary of state, the amendment would "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." It also removes the requirement that the governor's appointees be nonlawyers and could lead to a commission whose members are all lawyers.

The Bar would keep its authority to put three representatives on the panel, where the Supreme Court's chief justice, presently Richard Teitelman, serves a two-year term and the other members staggered six-year terms.

"It's a bad amendment and I'm not going to vote for it," Fisher said Thursday. "The basic complaint of the well-funded group supporting it, Better Courts for Missouri, is that liberal judges are legislating from the bench and that lawyers are selecting judges.

"But their criticisms have very little validity. I had always counted on the Senate holding the line. Prop 3 barely passed the House and then the Senate by one vote when Sen. Jack Goodman of Mount Vernon finally caved, which shocked me because he is running for circuit judge."

Referring to the Prop 3 plan, the Horton Republican said, "The only complaint I had about the system was that it wasn't transparent enough.

"In February 2007, U.S. Supreme Court Justice Sandra Day O'Connor came to Columbia and spoke glowingly of our plan but said, 'Except it's too secretive.' Since that time, it has opened up and some of the secrecy has tapered off."

Pearce recounted voting against Prop 3 "because it would give a lot more power to the governor and make judges more political.

"You'd have the Supreme Court and the appellate courts stacked by the governor," the Warrensburg Republican said.

"That would mean the courts would not be as impartial. It's interesting that the group who backed it just made a statement that they will not spend much money because they feel that with the ballot language, it doesn't have much chance of passing.

"They'll regroup next year and try to have the judges be directly elected, which I will definitely be opposed to."

Nevada attorney Bill McCaffree, former president of the Missouri Trial Lawyers Association, would regret such changes because the state's method of picking judges for the Supreme Court and the Eastern, Western and Southern Courts of Appeals at St. Louis, Kansas City and Springfield is nationally admired.

"The governor can't appoint someone who gives a huge donation to a political campaign," McCaffree said, noting that the chief justice of the Supreme Court would be removed from the judicial commission for a gubernatorial appointee.

"It would be a horrible mistake because we have a history of excellent judges, highly qualified people considered because of their eminent positions of respect.

"I hate to see things like this come up again and again. You wonder what people can be thinking to take the cleanest system in the country and throw it into politics. If it's not broke, don't fix it."

Under the current system, the commission interviews the attorneys and lower level judges who apply when an appellate vacancy occurs, then forwards its top three candidates to the governor, who chooses among them.

Missouri Bar Association Media Director Farrah Fite said from Jefferson City that the Bar's Board of Governors opposes Prop 3 because "it would effectively eliminate Missouri's non-partisan system of selecting appellate judges by giving future governors complete control over a majority of the Appellate Judicial Commission members.

"There would be no checks and balances on the governor at all. He or she could handpick judges."

In addition to Teitelman, current members are attorneys Thomas Burke of St. Louis, John Wooddell of Springfield and J.R. Hobbs of Kansas City and laymen Donald Ross of St. Louis, John Gentry of Springfield and Cheryl Darrough of Columbia, according to references.

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