This article first appeared in the St. Louis Beacon, Sept. 10, 2012 - A Cole County judge upheld ballot summary language for a pending constitutional amendment altering how judges for the state’s Supreme Court and the Court of Appeals are selected.
Earlier this year, Secretary of State Robin Carnahan’s office released a ballot summary that stated:
“Shall the Missouri Constitution be amended to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority 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 nonlawyers?”
Proponents of the ballot initiative subsequently sued earlier this summer, arguing that the summary did not reflect what the amendment was trying to do. While Cole County Circuit Judge Jon Beetem wrote that “there is no question that a better summary statement could have been submitted by the Defendant,” he added that’s not “the test to be applied.”
“Governing case law requires this Court to afford great deference to defendant’s summary statement, particularly when viewed through an aperture of no more than 50 words,” Beetem wrote. “Under this standard, the Court finds that Defendant’s summary statement accurately reflects the legal and probable effects of the proposed amendment without bias, prejudice, deception or favoritism.”
Beetem added that the summary statement “does not include all details or all possible outcomes, but including all details or all possible outcomes neither is required nor possible under the limits of [state statutes].”
“The summary statement does reflect the purposes Amendment 3 in language that is neither intentionally argumentative nor likely to create prejudice either for or against the measure,” Beetem wrote. “The Court finds that the defendant summary statement complies with [state statutes] as interpreted by the Missouri Supreme Court, is sufficient and fair as a matter of law. It does not require revision.”
Under the current version of Missouri "nonpartisan" court plan, the governor selects the judges who serve on the state Supreme Court, the appeals courts and in the circuits in St. Louis, St. Louis County, Jackson County and Greene County. The governor chooses from three nominees who have been selected by commissions that include an equal number of lawyers, people chosen by the governor and the state’s chief justice on the Missouri Supreme Court.
The proposed amendment – which was placed on the ballot by the Missouri General Assembly and has subsequently been dubbed "Amendment 3" – would replace the chief justice of the Missouri Supreme Court with another gubernatorial appointee, giving laypeople on the commission a 4-3 advantage. It would also allow a governor to select his commission appointees during his or her term in office, a move that would likely give the governor more influence over who the commission selects as judicial nominees.
The proposal would only impact the process for selecting nominees for the Missouri Supreme Court and the Missouri Court of Appeals. It wouldn’t have any effect on the various counties that are under the Missouri Plan.
Carnahan, amendment opponents applaud ruling
Carnahan said in a statement she was pleased with the ruling, adding "her office "has a legal obligation to provide Missourians with fair and sufficient summaries of ballot measures."
"The judge’s decision supports our position that the summary drafted by our office meets that legal standard," Carnahan said. "With less than two weeks to go before the September 22 deadline for local election authorities to send ballots to military and overseas absentee voters, this is a positive development to avoid any delay in printing and mailing ballots to these voters.”
Skip Walther – a former president of the Missouri Bar Association who is treasurer of a committee opposing the amendment – said in a statement that his group believes “the ballot language is fair because it recognizes that for the first time politicians will control this previously nonpartisan process.”
“Amendment 3 is dangerous because it puts more politics in our courtrooms and judicial selection process at a time when politics is crippling other branches of government,” said Walther, an attorney from Columbia. “The last thing we need is for politicians to be in charge of this process.”
James Harris – the executive director of pro-Amendment 3 Better Courts for Missouri – was one of the plaintiffs in the case. In a statement, Harris said his group was "very disappointed" by Beetem's ruling and added that the summary "will result in substantial misunderstandings about the purpose of Amendment 3.”
“Amendment 3 is a modest measure which will allow voters to decide if they want to update the Missouri Plan to increase public accountability and eliminate trial attorney special interests’ monopoly over judicial selection," Harris said. "However, the hopelessly biased ballot wording offered by Secretary Carnahan does not reflect this at all, and it is unfortunate that the court did not choose to strike down the summary and ask for a more accurate replacement.”
A staffer at Harris' consulting company relayed a message to the Beacon that the case had been appealed.
When the suit was filed in July, Better Courts for Missouri spokesman Rich Chrismer said in a statement that the summary “fails to describe the central purpose of the amendment and includes deceptive language that falsely asserts ‘lawyers’ would be given greater control over the Commission, when in fact the opposite is true.”
“This constitutional amendment will allow the people of Missouri to make the process of selecting judges more independent of special interests and provide greater accountability and transparency in the process, Chrismer said in July.
Some legislative opponents of the measure argued during the legislative session that the amendment would make it possible for the governor to appoint four additional attorneys to the commission.
