Missouri Plan
Encyclopedia
The Missouri Plan is a method for the selection of judge
s. It originated in Missouri
in 1940, and has been adopted by several states of the United States
. Similar methods are used in some other countries.
Under the Plan, a non-partisan commission reviews candidates for a judicial vacancy. The commission then sends to the governor a list of candidates considered best qualified. The governor then has sixty days to select a candidate from the list. If the governor does not make a selection within sixty days, the commission makes the selection.
At the general election soonest after the completion of one year's service, the judge must stand in a "retention election
". If a majority vote against retention, the judge is removed from office, and the process starts anew. If the majority vote in favor of retention, the judge serves out a full term.
Each of the circuit courts in Clay, Greene
, Jackson
, Platte
, and St. Louis
Counties, and the city of St. Louis
has its own circuit judicial commission. These commissions are composed of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers elected by the bar and two citizens selected by the governor. All of the lawyers and citizens must live within the circuit for which they serve the judicial commission.
. Most low-level judges in Missouri are elected, except in Kansas City
, St. Louis and Springfield
, where the Missouri Plan is mandated by the state constitution for all judicial vacancies. After Missouri adopted this method for selecting judges, several other states adopted it, either in full or in part. The plan was put forth by a committee chaired by Luther Ely Smith
, "founder" of the Jefferson National Expansion Memorial
. .
The Missouri Non-Partisan Court Plan has served as a model for thirty-four other states that use merit selection to fill some or all judicial vacancies. Sixteen states still elect their judges in partisan elections.
California
uses a heavily modified version in which the Governor can theoretically nominate any California attorney who has practiced for ten years. But then the nominee must undergo an evaluation by the Commission on Judicial Nominees Evaluation of the State Bar of California
, which then forwards a nonbinding evaluation to the Governor. For superior court positions, the Governor can make an appointment after receiving a report from JNE. For appellate court positions, the Governor submits the nomination to the Commission on Judicial Appointments, consisting of the Chief Justice, the Attorney General, and the presiding justice of the affected Court of Appeal district (or the most senior presiding justice for Supreme Court nominations). The CJA holds a public meeting, and receives the report from the JNE Commission, then decides whether to confirm the nominee. Once confirmed, the judge can take office but then must go through retention elections (at different intervals for each level of the judiciary).
has argued that flaws in the current plan give elite trial lawyers too much control over judicial selection. According to the organization's executive director, "they are a small, insular group who have their interests. They have a lot to add to the process, but we don't think they should dominate the process - (and they) are in no way accountable to Missourians."
Writing about the disproportionate power given to the bar in states that use the Missouri Plan, Professor Stephen Ware of the University of Kansas notes, "As the bar is an elite segment of society, states that give lawyers more power than their fellow citizens are rightly described as elitist."
Professor Ware finds that the unchecked power given to the Bar undermines the democratic legitimacy of the system, writing that “…even commission systems have democratic legitimacy insofar as members of the nominating commission are appointed by popularly elected officials. Democratic principles are violated, however, when members of the commission are selected by ‘a minority of the persons, i.e. lawyers in their area.’ This, of course, is the core of the Missouri Plan – allowing the bar to select some of the commission and then declining to offset that bar power with confirmation by the senate or other popularly elected body. And it is this core that deprives the Missouri Plan of democratic legitimacy.”
Studies conducted by the American Judicature Society show that merit selection ensures a more diverse judiciary than does partisan elections.
Governor Phil Bredesen
of Tennessee
has criticized that state's version of the Missouri Plan for similar reasons.
Similarly, Professor Brian T. Fitzpatrick of Vanderbilt University has argued that politics are undoubtedly a part of judicial selection in Missouri Plan states, writing, “In short, I am skeptical that merit selection removes politics from judicial selection. Rather, merit selection may simply move the politics of judicial selection into closer alignment with the ideological preferences of the bar.” Fitzpatrick notes that “…if we are willing to accept the notions that lawyers care about the outcomes of judicial decisions and that these outcomes are correlated with judges’ ideological preferences, then we might expect merit commissions to select judges who share the ideological preferences of the bar rather than those of the public.”
Tennessee governor Phil Bredesen has made similar complaints. He remarked, "I think [the nominating commissioners] have been vastly too political in their selection process. And what they are supposed to do is give you the best candidates in the ideal world."
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s. It originated in Missouri
Missouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
in 1940, and has been adopted by several states of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. Similar methods are used in some other countries.
Under the Plan, a non-partisan commission reviews candidates for a judicial vacancy. The commission then sends to the governor a list of candidates considered best qualified. The governor then has sixty days to select a candidate from the list. If the governor does not make a selection within sixty days, the commission makes the selection.
At the general election soonest after the completion of one year's service, the judge must stand in a "retention election
Retention election
A judicial retention election is a periodic process whereby a judge is subject to a referendum held at the same time as a general election...
". If a majority vote against retention, the judge is removed from office, and the process starts anew. If the majority vote in favor of retention, the judge serves out a full term.
Nonpartisan judicial commissions under the Plan
Under the Missouri Nonpartisan Court Plan, a nonpartisan judicial commission reviews applications, interviews candidates and selects a judicial panel. For the Supreme Court and Court of Appeals, the Appellate Judicial Commission makes the selection. It is composed of three lawyers elected by members of the Missouri Bar (the organization of all lawyers licensed in this state), three citizens selected by the governor, and the chief justice, who serves as chair. Each of the three geographic districts of the Court of Appeals must be represented by one lawyer and one citizen member on the Appellate Judicial Commission.Each of the circuit courts in Clay, Greene
Greene County, Missouri
Greene County is a county located in Southwest Missouri. As of 2010, the population was 275,174 making it the fourth most populated county in Missouri. Its county seat is Springfield...
, Jackson
Jackson County, Missouri
Jackson County is a county located in the U.S. state of Missouri. With a population of 674,158 in the 2010 census, Jackson County is the second most populous of Missouri's counties, after St. Louis County. Kansas City, the state's most populous city and focus city of the Kansas City Metropolitan...
, Platte
Platte County, Missouri
As of the census of 2000, there were 73,781 people, 29,278 households, and 20,231 families residing in the county. The population density was 176 people per square mile . There were 30,902 housing units at an average density of 74 per square mile...
, and St. Louis
St. Louis County, Missouri
St. Louis County is a county located in the U.S. state of Missouri. Its county seat is Clayton. St. Louis County is part of the St. Louis Metro Area wherein the independent City of St. Louis and its suburbs in St. Louis County, as well as the surrounding counties in both Missouri and Illinois all...
Counties, and the city of St. Louis
St. Louis, Missouri
St. Louis is an independent city on the eastern border of Missouri, United States. With a population of 319,294, it was the 58th-largest U.S. city at the 2010 U.S. Census. The Greater St...
has its own circuit judicial commission. These commissions are composed of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers elected by the bar and two citizens selected by the governor. All of the lawyers and citizens must live within the circuit for which they serve the judicial commission.
History and spread of the plan
Missouri voters adopted the system by initiative petition in November 1940 after several very contentious judicial elections, which were heavily influenced by the political machine of Tom PendergastTom Pendergast
Thomas Joseph Pendergast controlled Kansas City and Jackson County, Missouri as a political boss. "Boss Tom" Pendergast gave workers jobs and helped elect politicians during the Great Depression, becoming wealthy in the process.-Early years:Thomas Joseph Pendergast, also known to close friends as...
. Most low-level judges in Missouri are elected, except in Kansas City
Kansas City, Missouri
Kansas City, Missouri is the largest city in the U.S. state of Missouri and is the anchor city of the Kansas City Metropolitan Area, the second largest metropolitan area in Missouri. It encompasses in parts of Jackson, Clay, Cass, and Platte counties...
, St. Louis and Springfield
Springfield, Missouri
Springfield is the third largest city in the U.S. state of Missouri and the county seat of Greene County. According to the 2010 census data, the population was 159,498, an increase of 5.2% since the 2000 census. The Springfield Metropolitan Area, population 436,712, includes the counties of...
, where the Missouri Plan is mandated by the state constitution for all judicial vacancies. After Missouri adopted this method for selecting judges, several other states adopted it, either in full or in part. The plan was put forth by a committee chaired by Luther Ely Smith
Luther Ely Smith
Luther Ely Smith was a St. Louis, Missouri lawyer, civic booster and is called by the National Park Service the "father of the Jefferson National Expansion Memorial."-Early life:Smith was born in Downers Grove, Illinois...
, "founder" of the Jefferson National Expansion Memorial
Jefferson National Expansion Memorial
The Jefferson National Expansion Memorial is in St. Louis, Missouri, near the starting point of the Lewis and Clark Expedition. It was designated as a National Memorial by Executive Order 7523, on December 21, 1935, and is maintained by the National Park Service .The park was established to...
. .
The Missouri Non-Partisan Court Plan has served as a model for thirty-four other states that use merit selection to fill some or all judicial vacancies. Sixteen states still elect their judges in partisan elections.
California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
uses a heavily modified version in which the Governor can theoretically nominate any California attorney who has practiced for ten years. But then the nominee must undergo an evaluation by the Commission on Judicial Nominees Evaluation of the State Bar of California
State Bar of California
The State Bar of California is California's official bar association. It is responsible for managing the admission of lawyers to the practice of law, investigating complaints of professional misconduct, and prescribing appropriate discipline...
, which then forwards a nonbinding evaluation to the Governor. For superior court positions, the Governor can make an appointment after receiving a report from JNE. For appellate court positions, the Governor submits the nomination to the Commission on Judicial Appointments, consisting of the Chief Justice, the Attorney General, and the presiding justice of the affected Court of Appeal district (or the most senior presiding justice for Supreme Court nominations). The CJA holds a public meeting, and receives the report from the JNE Commission, then decides whether to confirm the nominee. Once confirmed, the judge can take office but then must go through retention elections (at different intervals for each level of the judiciary).
Criticism
The Missouri Plan is not without critics. There are several alternative ways of filling judicial posts which are used in other states. These include direct elections (either partisan or non-partisan), election by the state legislature, or appointment by the governor with advice and consent of the state senate. Missouri had previously used all of these methods before adopting the Nonpartisan Court Plan in 1940.Excessive influence of attorneys
Better Courts for MissouriBetter Courts for Missouri
Better Courts for Missouri is an American 501 organization that has proposed changes be made to the Missouri Plan for selecting judges. The St...
has argued that flaws in the current plan give elite trial lawyers too much control over judicial selection. According to the organization's executive director, "they are a small, insular group who have their interests. They have a lot to add to the process, but we don't think they should dominate the process - (and they) are in no way accountable to Missourians."
Writing about the disproportionate power given to the bar in states that use the Missouri Plan, Professor Stephen Ware of the University of Kansas notes, "As the bar is an elite segment of society, states that give lawyers more power than their fellow citizens are rightly described as elitist."
Professor Ware finds that the unchecked power given to the Bar undermines the democratic legitimacy of the system, writing that “…even commission systems have democratic legitimacy insofar as members of the nominating commission are appointed by popularly elected officials. Democratic principles are violated, however, when members of the commission are selected by ‘a minority of the persons, i.e. lawyers in their area.’ This, of course, is the core of the Missouri Plan – allowing the bar to select some of the commission and then declining to offset that bar power with confirmation by the senate or other popularly elected body. And it is this core that deprives the Missouri Plan of democratic legitimacy.”
Low diversity of the Commission
Former Missouri State legislator and lawyer, Elbert Walton, has focused on the plan's effect on African Americans. "It is unfair that lawyers elect judges ... It disenfranchises people and it especially disenfranchises black people." At a press conference in February, 2008, Walton accused Missouri Bar President Charlie Harris, an African-American, of ignoring the Missouri Plan's effect on black people. Walton noted that no African American had ever been elected to one of the Missouri Bar's three slots on the Appellate Judicial Commission, though many have been appointed judges, and suggested that Mr. Harris "ought to be ashamed of himself" for supporting such a plan.Studies conducted by the American Judicature Society show that merit selection ensures a more diverse judiciary than does partisan elections.
Governor Phil Bredesen
Phil Bredesen
Philip Norman "Phil" Bredesen Jr. was the 48th Governor of Tennessee, serving from 2003 to 2011. A member of the Democratic Party, he was first elected Governor in 2002, and was re-elected in 2006. He previously served as the fourth mayor of Nashville and Davidson County from 1991 to...
of Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
has criticized that state's version of the Missouri Plan for similar reasons.
Political interference
The Wall Street Journal wrote "If the recent slugfests have proven anything, it's that Missouri's courts are every bit as hung up in politics as they are in other states. The difference is that in Missouri the process happens behind closed doors."Similarly, Professor Brian T. Fitzpatrick of Vanderbilt University has argued that politics are undoubtedly a part of judicial selection in Missouri Plan states, writing, “In short, I am skeptical that merit selection removes politics from judicial selection. Rather, merit selection may simply move the politics of judicial selection into closer alignment with the ideological preferences of the bar.” Fitzpatrick notes that “…if we are willing to accept the notions that lawyers care about the outcomes of judicial decisions and that these outcomes are correlated with judges’ ideological preferences, then we might expect merit commissions to select judges who share the ideological preferences of the bar rather than those of the public.”
Tennessee governor Phil Bredesen has made similar complaints. He remarked, "I think [the nominating commissioners] have been vastly too political in their selection process. And what they are supposed to do is give you the best candidates in the ideal world."