Office Managing Partner, Husch Blackwell LLP
BAMSL President, 2021-22
Originally published in the May 2021 issue of the St. Louis Lawyer magazine. Download PDF.
Missouri's judiciary is one of the best in the country. One of the main reasons can be attributed to the state's adoption more than 80 years ago of what is now called the Missouri Non-Partisan Court Plan (or Missouri Plan for short). The Plan has been so successful that more than 30 other states have since replicated it as a model for selecting judges. Let me repeat that fact. Thirty other states, which also rightly call it "The Missouri Plan," have adopted our Plan.
According to the Missouri Courts official Web site, during the 1930s, the public became increasingly dissatisfied with the increasing role of politics in judicial selection and judicial decision-making. Judges were plagued by outside influences due to the political aspects of the election process, and dockets were congested due to time the judges spent campaigning.
In November 1940, voters amended the Missouri Constitution by adopting the "Non-partisan Selection of Judges Court Plan," which was placed on the ballot by initiative petition. Under the Plan, judges are selected based on merit rather than on political affiliation. Initially, the Plan applied to judges of the Supreme Court; the court of appeals; the circuit, criminal corrections and probate courts of St. Louis city; and the circuit and probate courts of Jackson County. In 1970, voters extended the Plan to judges in St. Louis County, and three years later, voters extended the Plan to judges in Clay and Platte counties. In November 2008, Greene County voted to extend the nonpartisan Plan to its judges.
A non-partisan judicial commission reviews applications, interviews candidates, and selects a judicial panel. Regardless of the commission handling the applications, the constitutional process of filling a judicial vacancy is the same. With any vacancy, the appropriate commission reviews applications of lawyers who wish to join the court and interviews the applicants. The Commission then submits the names of three qualified candidates — called the "panel" of candidates — to Missouri's governor. Normally, the governor will interview the three candidates and review their backgrounds before selecting one for the vacancy. If the governor does not appoint one of the three panelists within 60 days of submission, the Commission then selects one of the three panelists to fill the vacancy.
The non-partisan Plan also gives the voters a chance to have a say in the retention of judges selected under the Plan. Once a judge has served in office for at least one year, that judge must stand for a retention election at the next general election. The judge's name is placed on a separate judicial ballot, without political party designation, and voters decide whether to retain the judge based on his or her judicial record. While the voters rarely vote to expel a sitting judge, rightly or wrongly, it has happened several times in the last few years.
To educate voters about the performance of nonpartisan judges, a judicial performance evaluation committee — made up of both lawyers and nonlawyers — evaluates objective criteria, including decisions written by judges on the retention ballot as well as surveys completed by lawyers and jurors who have direct and personal knowledge of the judges.
This year, the Missouri Legislature is once again considering another proposal that would bring partisan politics back into the process of choosing judges. The proposed legislation would model Missouri's judicial selection process after the federal process in which the President (in this case, the partisan governor) nominates a judge and the Senate votes to approve or disapprove. The Senate votes most likely would fall along political party lines.
These proposals surface at the state legislative level almost every year. The question is, why? Why "fix" something that has been working for eight decades, and has served as an excellent model for more than 30 states in the union?
Those in favor of changing the Missouri Plan often decry the alleged political leanings of our state judiciary. Simply put, critics want more politically conservative judges. My suggestion for broadening the diversity (both in terms of background and in terms of thought) would be to increase the pay of our state court judges and to provide each Missouri judge with dedicated law clerks. Rarely do conservatives complain about the political leanings of our federal benches, who just happen to be better paid and have more resources than our state court judges.
The Missouri Plan has consistently ensured citizens of Missouri are afforded independent, fair and impartial judges who are beholden only to the rule of law and not to politicians or campaign donations. We must protect this independence of the judiciary to ensure fair and equitable administration of justice throughout our state.