Missouri Update

by Carrie Severino

In May I reported that the Missouri legislature had approved a constitutional amendment that would improve the state’s lawyer-dominated method of choosing judges, now known as the Missouri Plan. Since then, Missouri’s secretary of state, Robin Carnahan, has produced the official wording that will appear on the ballots in November. The AP reports that supporters of reform believe the ballot wording is so biased and misleading that they plan to abandon the amendment. According to the press release distributed by reform spokesman Rich Chrismer:

Supporters of Amendment 3 continue to believe that its terms would strengthen the judiciary by busting the monopoly that special interest trial lawyers currently have over the selection of Missouri’s judges.  But they expressed no desire to dedicate the resources it would take to both support the amendment and warn voters of Robin Carnahan’s deceptive ballot wording, which was designed to intentionally mislead them about the changes being sought. . . . 

The special interests who dominate Missouri’s judicial branch know that change is on the way.  They say they oppose the overwhelmingly popular option of judicial elections, which would give every Missourian the ability to directly elect every Missouri judge, but then employ Carnahan to disfigure modest reforms like these.  We will continue to work toward reform until the people of Missouri have what they deserve, which is a judicial branch of the highest quality and unquestionable commitment to the rule of law. 

As I have explained before, the most important feature of the proposed amendment is that it would destroy the ability of trial lawyers and other unaccountable special interests to dominate the judicial selection process. It would do that by removing the Chief Justice of the Supreme Court from the commission that nominates judges, and by allowing the governor to appoint a majority of the commissioners.  Under current law, the Chief Justice and the Missouri Bar’s three appointees make up the majority.

Carnahan distorted the purpose of the amendment by telling voters that it would “give the governor increased authority to . . . appoint all lawyers to the commission by removing the requirement that the governor’s appointees be non-lawyers.” I don’t expect Missouri’s voters to show much enthusiasm for such a formulation, so the decision to save time and resources seems wise. Especially if the cost of passing it would match or surpass the cost of passing an even better amendment, such as one that would implement some version of the federal method or a system of judicial elections.

This is sad news for those of us who believe the Missouri Plan has allowed the judicial branch to be captured by trial lawyers, and it comes just a few weeks after the Missouri Supreme Court proved the point by invalidating the state’s cap on non-economic damages, a boon to lawyers. If you don’t believe a single decision of such magnitude is enough evidence, then take a look at the U.S. Chamber’s latest rankings of state legal climates. In 2012, Missouri’s judges ranked 36th for impartiality and 41st for competence, and the trend-line is not positive. In short, if you are looking to invest or do business in Missouri, you are probably better off looking into alternatives.