Commentary: Keep partisan politics out of the judicial branch

Because the judiciary relies on the public's trust and confidence for its institutional legitimacy, this growing public perception of improper influence threatens the very foundations of the rule of law. - Dennis Archer, President, American Bar Association, 2004

Times are a little tense for the judicial branch of government in Missouri. The year started out with great promise. Missouri Supreme Court Chief Justice Ronnie White said in his February State of the Judiciary address that he would like to see the Missouri Nonpartisan Plan extended to other counties.

The Missouri Nonpartisan Plan was born out of the era when political boss Tom Pendergast controlled who became judges and political leaders. One bad example of judicial elections in that era was the selection of a pharmacist who was sponsored by a ward boss and elected to the circuit court despite lacking any legal or judicial experience. In fact, that judge later settled a case by ordering one of the parties to take two aspirin and call him in the morning.

The effort to reform judicial selection in Missouri followed a very contentious fight in 1938 for a Supreme Court justice seat. One candidate was supported by the governor, and the other was backed by the Pendergast machine. At the time, the St. Louis Post-Dispatch called the election contest the nastiest, most bitter intra-party fight in years. That election spawned a reform movement of citizens who were alarmed at the injection of party politics into judicial matters and the resulting threat to an impartial, independent judiciary. That reform movement culminated in 1940 when a two-thirds majority of Missouri voters approved the selection of judges based on merit. The plan was mandatory for Jackson County and St. Louis City, as well as the Supreme Court and Courts of Appeal. For other counties, the plan was voluntary.

The new nonpartisan selection system, which became known as The Missouri Plan, allowed for retention elections so that voters can decide if judges should be retained for another term. The judges are selected by a process involving citizens, attorneys and the governor. A judicial selection panel, including two lawyers elected by the bar and two citizens selected by the governor, review potential candidates and submit three recommendations to the governor. The governor then selects one candidate for the judgeship, and within a year of that appointment, the judge is subject to a retention vote of the people. Circuit judges also come up for a retention vote by the people every six years and associate circuit judges every four years. Over the years, various opponents of the plan have tried to eliminate it, but Missourians have thwarted their efforts, voting to affirm the plan in general elections in 1942 and 1945.

For more than 60 years, Jackson County has been fortunate to be one of the counties in Missouri to have the Missouri Plan. In the Kansas City area, both Clay and Platte counties join Jackson County in being part of the Missouri Plan.

Earlier this year, more than 50 of our state legislators sponsored a piece of legislation that would eliminate the Missouri Plan, replacing judicial selection based on merit with selection based on politics. While this legislation hasn't been passed yet, it is a frightening thought to think Missouri would scrap a successful system that was subsequently adopted in some form by more than 30 other states. By eliminating the Missouri Plan, we would take a huge step backward.

If you think the Missouri Plan isn't the best method of judicial selection, look around the country, and you'll see plenty of evidence that partisan judicial elections are plagued by problems. In nearly every law-related publication, judicial independence/elections are hot topics. States like Texas, Ohio and Mississippi have been rocked by judicial elections that have involved record fund-raising and controversial campaigns filled with political attacks. In Ohio, some particularly strong television advertisements spotlighted the decisions of some judges in comparison with the biggest donors of their campaigns. In the year 2000, more than $10 million was spent on airings of such judicial election television commercials in just four states.

In March, a story in the New York Times likened one Mississippi judicial election to a John Grisham novel, but the real story was even more riveting than the best fictional manuscript. One Mississippi Supreme Court Justice presided over a case involving a lawyer who provided him a condominium rent-free while also guaranteeing a loan for the justice's wife.

Even if there is no impropriety, we must ask ourselves if that is the kind of situation we want in our own state. Do we want our judges to have to go out and raise campaign dollars from some of the same groups that come before them for fair and balanced justice? Do we want judges who are fair and have a wealth of knowledge on the law or skilled politicians who can afford the best campaigns money can buy? As Dennis W. Archer, president of the American Bar Association, said in a recent letter to members of the Missouri legislature, Because the judiciary relies on the public's trust and confidence for its institutional legitimacy, this growing public perception of improper influence threatens the very foundations of the rule of law.

According to the Justice At Stake Campaign, a judicial reform group, the average Mississippi Supreme Court campaign that cost $25,000 in 1990 cost more than $1 million in 2002. An extensive study by Justice At Stake found that the year 2000 signaled a dangerous turning point for America's courts, documenting the growing, systemic, and unprecedented infusion of big money and special interest pressure in the election of members of the judicial branch. The report said further, Unless citizens and their leaders come together, the threat to fair and impartial justice will grow.

This issue goes beyond politics and judicial selection. It underscores the role and importance of the judiciary as the third branch of our government. An important part of our democracy is the ability of the people to select their representatives and the heads of the executive branch of government. These elected representatives are the constituents of these two branches of government. By law, judges are prohibited from having constituents, so having them selected by partisan elections makes little sense. By selecting judges based on merits, judges are not beholden to any group or individual; it allows our judges to make decisions based purely on the law. This preserves the rights and freedoms of all individuals who come through our justice system.

The current process of judicial selection in Missouri is based on merit, not political agendas or positions. While the governor selects judges from three possible candidates, all of those candidates were submitted based on their qualifications to be a good judge. Our system further allows checks/balances so that voters can vote to not retain judges at the end of their term. This system allows judges to be free to make decisions based solely on the law, without conflicts that ultimately arise when judges are forced to make decisions involving people who have donated large sums of money to put them on the bench.

In order to protect and insure liberty for all citizens, it is vital that judicial independence be preserved. Missouri had a judicial system ruled by partisan politics once, and the voters decided to change our constitution to eliminate it. As with many important lessons, history is a wise teacher.

By Judge Jay A. Daugherty

Presiding Judge

16th Judicial Circuit

Copyright 2004 Dolan Media Newswires
Provided by ProQuest Information and Learning Company. All rights Reserved.