System for picking judges may face scrutiny

By Marc Powers

Nevada Daily Mail

JEFFERSON CITY, Mo. -- The last-minute effort by some conservative groups to oust Supreme Court Judge Richard Teitelman may have failed, but it focused renewed attention on a process for determining judicial service that mostly exists in obscurity.

The Missouri Nonpartisan Court Plan was revolutionary when voters made it part of the state constitution in 1940. The plans emphasis on insulating the process from politics made it a national model that dozens of states have since adopted in some form.

After early attempts at repeal following ratification, the system has gone largely unnoticed by the general public.

Under the court plan, the governor appoints judges to the Supreme Court, Court of Appeals and certain circuit courts. Appointees must periodically stand for retention votes. Voters simply mark their ballots yes or no as to whether a judge should keep his job and aren't offered an alternative candidate as with standard elections.

Lacking the adversarial component present in partisan elections for legislative or executive branch offices, retention elections receive little public exposure.

In the 64-year history of the nonpartisan plan, no appellate-level judge has ever been removed, making the retention system in practice little more than a rubber stamp on the extension of the tenure of judges.

About a month before the Nov. 2 elections, a group called Missourians Against Liberal Judges launched an anti-Teitelman campaign -- the first organized attempt to remove a Supreme Court judge in memory.

The groups effort focused on unsubstantiated claims that Teitelman, an appointee of Democratic Gov. Bob Holden, opposed a bill granting Missourians the right to carry concealed weapons and a constitutional ban on same-sex marriage.

Teitelman still won retention in the landslide typical of such votes.

His 62.3 percent yes vote, however, was the lowest level of support a Supreme Court judge has enjoyed in 12 years, although that isn't necessarily attributable to the opposition movement.

House Speaker Pro Tem Rod Jetton, R-Marble Hill, was among those involved in the campaign against Teitelman. Jetton said voters have little information about a judges record upon which to make an informed decision and that breeds a lack of accountability in the judiciary.

"I don't think the current system is working," Jetton said. "We are getting a slant on the bench and it is an activist slant."

Jetton, who is in line to become House speaker in January, said lawmakers will likely consider changes in how judges are chosen during the upcoming legislative session.

Missouri Bar President Joe Whisler of Kansas City said moving away from the nonpartisan plan could carry dangerous consequences and shouldn't be considered lightly.

The very nature of the judiciary, Whisler said, is to resolve disputes based on the law and the constitution and not to bring about a particular outcome based on popular opinion or partisan agendas.

"A lot of what I've heard is judges don't know what people want," Whisler said. "That's a fair way for a legislator to think, but courts aren't interested in what people want but what the law says and fairly applying it."

The nonpartisan court plan originated as a way to combat judicial corruption. At the time, judges at all levels were elected, and the political machine run by Kansas City Democratic boss Tom Pendergast wielded great influence on the process.

The proposal to establish the current system was placed on the ballot via initiative petition in 1940. Although fiercely opposed by the political establishment, it was ratified with 54.6 percent support.

Foes of the plan did not accept the outcome, however, and submitted a repeal measure to voters in 1942.

It was rejected with 64.2 percent favoring keeping the new process. Still undaunted, a group of delegates to the constitutional convention that convened the next year to draft a new state charter pushed for a return to direct election of judges.

According to the 1971 book Constitution Making in Missouri: The Convention of 1943-1944 by University of Missouri professor Martin L. Faust, the repeal movement gained momentum for time. The effort eventually was abandoned, however, because delegates feared submitting a new constitution to voters with the nonpartisan court plan deleted would jeopardize the chances for ratification.

The plan gives the power to nominate judges for the Supreme Court and Court of Appeals to the independent Appellate Judicial Commission.

The panel consists of the chief justice, three lawyers elected by the Missouri Bar and three lay members appointed by the governor.

The commission submits three nominees to the governor, who must appoint one of them. After an appointee has served a year, he or she must stand for retention at the next general election and periodically thereafter.

While circuit judges in the St. Louis and Kansas City areas are also selected under the nonpartisan plan, trial judges in the rest of Missouri run in partisan elections. Ben Lewis, a Cape Girardeau Republican who earlier this month won election to the 32nd Judicial Circuit bench, said no perfect system for choosing judges exists.

"There is no way to remove politics from the selection of judges," Lewis said. "Whether it is by appointment or election, there are politics that are going to be involved."

Although Lewis said the tone of his race against incumbent Democrat John Heisserer remained positive and professional, the potential exists for judicial races to turn ugly and undermine public trust in the judiciary.

A case in point is the recent bitter contest for the Illinois Supreme Court.

The Republican and Democratic candidates and their respective supporters engaged in intense mudslinging, and special interest groups pumped millions of dollars into the race, creating the appearance that justice in Illinois can be bought.

Earlier this year, a group of House Republicans proposed a constitutional amendment to reinstate direct judicial elections throughout Missouri.

More than one-third of the chambers members co-sponsored the measure.

Whisler said a return to statewide judicial elections could undermine the independence of the courts and make them more subject to the will of campaign donors and popular whim.

"If you have judges afraid they will lose their jobs if they follow their consciences, thats scary -- I don't care what side you're on," Whisler said. "If it gets to where the judiciary is a copy of the legislature, why should you have a judiciary? The judiciary shouldn't be for sale."

The proposal received a hearing until late in the session but no further action was taken. Jetton said the large number of supporters shows there is concern judges are beholden to no one. Although he was a sponsor, Jetton isn't sure direct election of judges is the way to go.

"We don't want judges worrying about re-election every time they make a decision," Jetton said. "But we have to have some means to hold them accountable."

Jetton said House Republicans are currently working a proposal that would instead provide some level of legislative oversight on the nomination of judges.

The details are still being formulated, but Jetton said it could be similar to the federal system under which judicial nominees must be approved by the Senate.

Meanwhile, Whisler said the Missouri Bar plans to appoint a blue-ribbon panel to study the issue and be prepared for any proposed changes the legislature might pursue.