Court plan at center of determining new Supreme Court judge questioned by some, including Greitens

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JEFFERSON CITY, Mo. – On Feb. 28 and March 1, a select group of seven people will determine three candidates from a field of 31 to move onto the final selection process to become the next judge on the Missouri Supreme Court. Chief Justice of the Missouri Supreme Court Patricia Breckenridge will chair the group, known as the Appellate Judicial Commission, made up of three lawyers, a former high school principal, a retired nurse, and a member of the United Auto Workers.

Those seven will determine who will fill the seat of the late Judge Richard Teitelman, who died in November.

It is not certain whether the plan will continue during Gov. Eric Greitens administration. In the past, he has found fault with it.

The plan’s history and how it works

Missouri voters adopted the plan into the state constitution in 1940 to combat the influence of Tom Pendergast’s political machine when it affected multiple judicial elections across the state. Dana Tippin Cutler, the president of the Missouri Bar, says the plan ensures moneyed interests keep “Big P” politics – vast fundraising efforts, massive multi-million dollar campaigns, etc. – out of the Missouri courts, exactly as it was intended to do in the Pendergast days. Voters and Missouri citizens perceived judges elected on Pendergast’s dime could defer to him or his allies in court

“When you have Supreme Court judges needing to raise money, it gives the potential taint that judges are going to be financially beholden to the people that gave them that money,” Cutler said.

Judge Richard Teitelman

The Appellate Judicial Commission will determine the final applicants to replace Judge Richard Teitelman

Currently, the plan works as follows: The chief justice of the Missouri Supreme Court leads the committee, and the bar elects three lawyers, one from each of the three different regions across the state, for one six-year term. Then, the governor nominates three non-lawyers from across the state for the same period of time. Thomas Burke of St. Louis, Donald E. Woody of Springfield, and Scott S. Bethune of Kansas City are the three lawyers currently on the board; while Kirkwood’s Nick Robinson, Marshfield’s Michelle Beckler, and Columbia’s Kathy Ritter are the three non-lawyers on the board. Gov. Jay Nixon appointed all of them and their terms will expire respectively in 2018, 2020, and 2022 on Dec. 31 of those years.

Those members will soon select Teitelman’s replacement and other judges in major jurisdictions across the state. Ideally, this panel will determine each potential judge’s merits and faults and pick the three most qualified candidates to present to the governor. The governor then selects from the group of three and after a year in the office, voters get to confirm the judge.

Rural judges are still elected under the plan, Cutler said, because they have better access to their local constituencies and have less chance of being the recipients of large campaign donations.

The system is considered merit-based because it removes official elections as the primary determining factor and, ideally, removes the politicization of those judges to generate as politically impartial judges as possible.

Since 1940, 34 other states have adopted similar merit-based plans and 23 of those use those plans for their own state Supreme Courts.

The fight against the Missouri plan

The plan is not without its detractors, however, and Greitens appears to be among them. Though his office did not respond to The Missouri Times to provide context on this story, Greitens made his position known through Will Scharf, his policy director, on the campaign trail in October.

“Eric is opposed to our current system of judicial selection that gives trial lawyers too much control over the appointment of the very judges they argue their cases in front of,” Scharf told the St. Louis Post-Dispatch. “Eric views states like Tennessee that have moved away from similar systems in recent years as a model and favors moving Missouri in a similar direction.”

Harris

Harris

Republican political consultant James Harris of the J. Harris Company criticizes the plan for what he sees as a liberal shift of the state’s judges and the inherent “undemocratic” nature of the plan since it precludes a vote of the people until after a judge is selected.

“It’s intellectually dishonest to say this is non-partisan,” Harris said. “If you look at the current make-up of the commission these three attorneys are all personal injury attorneys and you have a labor union official and some Democrat appointees. These are all people who are liberal and they say they’re non-partisan but if you look at the Supreme Court makeup, these panels that have been coming forth, miraculously, they’re all Democrats.”

Harris says trial attorneys and the leadership at the Bar have resisted changes to the plan because they want to retain their power over the process.

“Everyone wants access to fair and impartial judges,” Harris said. “The problem is we don’t have that today. The trial attorneys have gamed the system and that’s not good for normal people.”

However, Cutler stressed the Bar had little influence on selecting attorneys for the commission because they are all elected by lawyers from three regions of Missouri – east, south, and west. She also stressed the plan did not exist nor claim to be completely apolitical, but that its purpose was to prevent the politicization of those offices, again, by ensuring judges do not engage in the types of nasty politics some elected officials go through. She pointed to political ads for judges in Illinois, which does not have a merit-based plan.

“It gets pretty vicious and we want people to feel confident in our courts and in our judges,” she said. “It’s hard to feel very confident when you see the mudslinging.”

Harris said a better plan would be to have something more akin to the federal plan, where an executive chooses judges and then they are held accountable for those judges’ actions. Or he said people should simply vote on judges.

“It’s a political process, but the people aren’t in charge,” he said of the current plan.

If Greitens, or even Republicans in the General Assembly want to change the plan, they cannot do so unilaterally. It would require a constitutional amendment, which must be voted on by a vote of the people.

Nixon defends the plan

Nixon spoke at Teitelman’s funeral in November and one of the longest lines of applause he received during the eulogy came when he spoke of the value the Missouri plan had played in Teitelman’s ascendence to Supreme Court.

Gov. Jay Nixon greets representatives as he enters the House chamber for his final State of the State speech, Jan. 20, 2016. (Travis Zimpfer/Missouri Times)

Gov. Jay Nixon appointed the three non-lawyer members of the commission

“You have a legally blind, public aide lawyer that makes it to the highest court of your state… that would not happen if it were not for something like the court plan,” he told The Missouri Times. “A guy like Rick Teitelman would not have been in the system if it was a straight run-for-office deal.”

Nixon also noted that two of his Supreme Court appointees – Judge George Draper and Paul Wilson – had disagreed more than half of the time in 4-3 court decisions, a fact he said indicated the plan did not produce identically-minded individuals who would vote completely on policy lines. He also pointed to the expansion of the Missouri plan into other counties, like Greene County, which adopted the plan in 2008, to show the plan had appeal and merit.

“I’m confident that the judges throughout the state of Missouri stand well beside their colleagues from around the country,” Nixon added.

Cutler also said the situation in Missouri, while not ideal, was the envy of states around the country that did not have such a plan.

“Is it perfect? No,” she said plainly. “But it is a model for the country, and I can’t tell you how many times I’m out meeting with other bar leaders across the country and those that don’t have our process wish that they do.”

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