“If It Ain’t Broke (for 70 Years), Don’t Fix It: Please Vote No on Amendment 3” by Rich Maltby

The Non-Partisan Court Plan (the “Plan”) has produced a steady stream of competent judges at the trial, appellate and Supreme Court levels for seventy years in Missouri. The Plan continues to be a model for the nation as more than thirty other states have replicated some form of our judicial selection process. It is and remains the standard because the Plan continues to attract high-quality judges in the least political way and ultimately gives the people the final say through the voting process as to who will be their judges.
A recent effort funded largely by large non-Missouri corporations choosing to do business in Missouri seeks to up-end the Plan. Currently, the Plan is the foundation for a judiciary that is free to apply laws, is as free as reasonably possible from political or special interest pressures and is free from the fear of losing their judgeship for doing what the law requires. Our firm has joined the Springfield Chamber of Commerce, The Missouri Bar, the Springfield Metropolitan Bar Association, an impressive list of former Missouri Supreme Court judges who were appointed by both Republican and Democratic Governors, and a host of others to oppose the proposed Amendment 3 that will be on the ballot in November. We respectfully request that you consider doing the same. The ballot language speaks for itself as to the problems with the proposed new court plan and provides: “Shall the Missouri Constitution be amended to change the current non-partisan selection of supreme court and court of appeals judges to a process that gives the governor increased ability to: appoint a majority of the commission that selects these court nominees; and appoint all lawyers to the commission by removing the requirement that the governor’s appointees be non-lawyers?” This is simply too much power for the governor and removes any checks and balance system on which our government was founded. It also gives too much power to one profession – us.
The current Plan works like this: Citizens and lawyers, along with a judge, work as a balanced team on judicial nominating commissions where they select the top three candidates for the governor to choose from to fill an open judgeship. The commissioners review the candidates’ character and community experience they bring to the bench and, with the aid of the lawyers and judge, evaluate the professional strengths and legal analysis skills. The Plan is good for business by keeping the rulings consistent rather than swinging in the political wind. The health of the state’s business climate is dependent on the stability of its courts and whether a business owner even realizes it, risk management decisions are based on a stable judiciary that applies established law to facts and does not bend to political whims. Uncertainty of legal consequences cuts against a business owner’s ability to make a decision in the company’s best interest.
Amendment 3 gives future governors only two years into a single term to select four out of the seven commissioners, providing those four appointees with unchecked power given that those four would constitute a majority. The proposed Constitutional Amendment, which stems from Senate Joint Resolution 51, would, if approved by a vote of the people, have the effect of eliminating Missouri’s merit-based judicial selection process. It would hand future governors ultimate control of the majority of commissioners who select the panel of candidates for the governor to choose from to fill an open judgeship.
The President of the United States does not have this type of unchecked control for purposes of filling vacancies on the United States Supreme Court. Only one state currently allows this level of unchecked gubernatorial control, which is Florida. Proponents in Missouri have failed to offer any compelling reason why Missouri’s Plan should now follow Florida and depart from a system with a proven track record.
If the foregoing is not convincing enough, please also consider:

• The Plan produces appellate courts that are neither Republican nor Democrat. They are simply fair and impartial, which should be absolutely fundamental when entering a courtroom.
• The Plan prevents judges from campaigning and accepting campaign contributions. Quite candidly, it removes corruption or even perceived corruption from the courtroom.
• The best applicants are attracted to judicial positions because they understand they will be evaluated on merit, not politics.
• The commission is balanced by design to reduce the likelihood that any one person or interest will control.
• The Plan staggers the term of the governor’s appointees again preventing one politician from having control over a majority of the commissioners.
• Judges, as peers, have the most experience and ability to evaluate a candidate’s skills, knowledge and suitability for the bench. Their active involvement on the commission is imperative.
• The Plan is transparent to the public. There is no behind the scenes politicking.

It must be emphasized that under the current Plan, voters have the final say through judicial retention elections that are held at the general election following a judge’s first twelve months on the bench and the end of each term. Thus if you are not happy with a judge under the current Plan, you hold the power to have that judge replaced. In short, the Plan works, and if it does not, the Plan allows the voters to fix it.
We strongly urge you to consider the foregoing before you head to the polls in November. Please help our firm in our representation of you by voting “No” on Amendment 3. If you have any questions about the Plan, please contact Rich Maltby or Chip Sheppard, both with CECB’s Dispute Resolution Group.