Petition scrutinizes Missouri Plan, judge selection

The new system would allow for more citizen input.

By Victoria Guida

Published Oct. 27, 2009

A petition submitted to Secretary of State Robin Carnahan's office could change the way Missouri's judges are selected.

James Harris, a lobbyist and consultant for Better Courts for Missouri, submitted a petition, which calls for judges to be elected by popular vote.

Under the state's system, known as the Missouri Plan, a commission of mostly lawyers selects three candidates for a vacant judicial seat. The names are sent to the governor, who appoints one. After the judge has been in office for a year, the general population votes in a retention election, which decides if the judge stays in office or is removed. Since its adoption in 1940, this plan has been imitated by 23 other states.

Harris said mostly personal injury attorneys, who benefit personally from having this power, control the process.

"There is an inherent conflict of interest in lawyers having too much influence in selecting judges," Harris said. "It may be good for them, but it's not good for the average Missouri citizen."

The petition, which will be put up to a statewide vote, has three goals, Harris said. These goals are to add transparency to the process, to increase citizen input and control and to reduce the influence of the organized bar.

"The courts belong to the people, and they should have the absolute authority," Harris said.

Harris submitted another petition calling for judges to be selected by the same process used to choose federal judges, but a lawsuit was filed against it. Since then, people have suggested going further, Harris said.

Research shows when judges are elected, they are more in touch with their constituency and can make decisions that are better for the people, Harris said.

Law professor Rafael Gely said there is danger in not electing judges for that reason.

"You are, at least to some extent, insulating judges from the need to be responsive to an electorate," Gely said. "If they don't have to pay attention to the public, one concern is they might make decisions that make no sense to the public."

Justice at Stake, a national, non-partisan organization, opposes moving away from the Missouri Plan. Justice at Stake spokesman Charlie Hall said a poll showed strong public support for the state's system. The main concern, Hall said, is judges will make decisions in favor of those who elected them, not based on the law.

"It makes the public uneasy and it makes us uneasy," he said. "It's one case where people should look hard before they leap."

Gely said the Missouri Plan prevents judges from becoming like other politicians because it prevents them from having to make decisions supporting the policies of the groups that elected them.

"I'm not sure that we feel comfortable putting judges in that position," he said. "Judges are supposed to be there not necessarily to implement or create policy, but to decide what the law is."

Hall said special interest groups could easily change elections.

"Judicial elections are easier to gain than others because people don't have a strong sense of who their judges are," Hall said.

He also said the system has proved to be as balanced a system as possible.

"I'm not sure any process completely keeps politics out of the process," Hall said. "What the Missouri Plan does, it keeps special interest money out of the process, while allowing voters to pass periodic judgment by vote."

Gely said there are unavoidable risks in both processes.

"Both systems have plusses and minuses," Gely said. "Under both systems there are some advantages and there are some risks, and the question is finding the right balance."