This article first appeared in the St. Louis Beacon, Oct. 2, 2012 - Backers of a constitutional amendment that would make changes in the way that Missouri’s appellate judges are chosen said Tuesday they are backing away from a campaign on the measure, which is on the Nov. 6 ballot.
Citing what they said was “deliberately deceptive and hopelessly biased ballot language written by Secretary of State Robin Carnahan,” supporters of Amendment 3 said they “will not move forward with a traditional campaign” but will begin talking about other options to achieve the same goals.
A group working to defeat the amendment said it plans to continue its effort to “educate Missouri voters on why it’s dangerous to allow politicians to control what is now a nonpartisan process.”
The amendment, which made it to the ballot after being passed by the General Assembly, would change the makeup of the panel that proposes candidates for vacancies on the state Supreme Court and Courts of Appeals.
Currently, the seven-member panels that make recommendations to the governor are made up of equal members of the Bar and of people chosen by the governor. Also on the commission is the chief justice on the Missouri Supreme Court. The governor’s appointees serve staggered terms, so that they are not all named during the four years that a governor is in office.
The amendment would change the makeup of the panels and how they are chosen. The new commissions would include four people named by the governor, all to four-year terms during his or her term, plus three members of the Bar. The chief justice’s spot would be replaced by a retired judge who would not have a vote.
No changes would be made to the current way judges on lower courts are named and retained in the St. Louis, Kansas City and Springfield areas.
At issue is the ballot language submitted by the secretary of state’s office summarizing the amendment – language that is limited to 50 words and has been upheld by a circuit court judge in Jefferson City and by the Missouri Court of Appeals.
It says:
“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?"
In upholding the wording, Cole County Circuit Judge Jon Beetem said that it could be better, but the question was whether it was fair and sufficient. He ruled that it was, and the appellate court agreed.
The main group in support of the amendment, calling itself Better Courts for Missouri, fought that wording in the courts, saying that does not get across the true spirit and intent of the drafters of the amendment, which is to make the judicial selection process more democratic.
James Harris, a spokesman for the group, told the Beacon that “the citizens of this state don’t like commissions. People want judicial elections. They want to be in charge of choosing their judges. But no matter what is proposed, the legal special interest groups have always opposed it. It breaks their legal monopoly on the selection process.”
In its statement backing away from its campaign in favor of the amendment, the group’s spokesman, Rich Chrismer added:
“The people of Missouri deserved a ballot summary that fairly and accurately communicated the modest changes included in this amendment so voters could make an informed choice. Because the secretary of state – a lawyer who opposes reform – denied Missouri voters this opportunity, we intend to preserve our resources for meaningful judicial reform.
“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.”
In the same statement, House Speaker Tim Jones, R-Eureka, said he agreed with the decision not to appeal the issue to the Supreme Court and to abandon a traditional campaign.
“Providing an accurate representation to enough voters to ensure they are able to make an informed decision would be a nearly insurmountable goal with ballot language this biased,” he said. “A ballot title is not supposed to present a falsehood to the people, but in this case, Secretary of State Robin Carnahan has made sure that it will.”
Amendment still needed to make changes
Asked what other avenues might be used to get the issue before Missouri voters again if the amendment fails in November, Harris acknowledged that at the end of the day, a constitutional amendment would be needed because the court plan language is in the constitution. He said it could be put on the ballot by legislative action or by initiative petition, and “both options are on the table.”
But the current amendment, he said, faces an uphill battle because of the ballot language written by the secretary of state’s office and upheld by the courts.
“She’s not doing her job,” Harris said of Robin Carnahan. “She’s allowing partisan politics to permeate a very important process. She’s been given an enormous responsibility by the citizens of this state to write fair and accurate ballot language to help citizens make decisions. We’ve seen time and again that she writes highly biased language. There shouldn’t be a partisan agenda there.”
A spokeswoman for Carnahan, Stacie Temple, said the disputed language “absolutely reflects the ballot wording" of the full proposal and noted that it had been upheld by two courts. She also said that the General Assembly could have drafted the ballot-summary language, but declined to do so.
Referring to the decision of pro-Amendment 3 forces not to campaign, Temple said, "Either they don't like the ballot language of their underlying measure or they don't think they can win."
Harris said that in almost every legislative session in recent years, proposals to change the court plan have been made. He said the current method, widely known as the Missouri Plan and adopted at least in part by many states, is not the norm, with other states using judicial elections, appointments that need to be confirmed or a hybrid of the various formats.
But in the statement from opponents of the amendment, a group known as the Missourians for Fair and Impartian Courts Committee, treasurer Skip Walther said:
“For more than 70 years Missouri has served as a national model for selecting judges based on merit and not on politics. Missourians simply do not support overturning our nonpartisan system for picking judges with one that allow politics into our courtrooms .… We urge all Missourians to protect the nonpartisan nature of our courts by showing up to the polls on Nov. 6, and voting no on Amendment 3.”
In an interview on the issue last month, Lynn Whaley Vogel, president of the Missouri Bar, acknowledged that the so-called nonpartisan court plan can never truly be nonpartisan, but she said it is highly preferable to the kinds of big-money contests voters see in states like Illinois, where members of the state Supreme Court are elected.
She said the changes that would be brought by Amendment 3 are only the beginning of what she termed a goal of doing away with the court plan altogether.
“This is purely political,” Vogel said, “and that’s what we left in 1940. Citizens were sick of Tom Pendergast paying for judges. That’s what would happen with Amendment 3, only you would have to pay for the governor.”
She said the people who have funded the effort behind the amendment are not being forthcoming but are hiding behind lobbyists and campaign contribution rules that let their names remain secret.
“There are interests who believe that the courts should reflect ideology and politics,” she said. “We firmly believe that the third branch of government should remain free from that influence and be free to interpret the law without that influence.”
Six retired members of the Missouri Supreme Court -- Ray Price, Ronnie White, John Holstein, Ann Covington, Michael Wolff and Edward D. "Chip" Robertson Jr. -- have joined the effort to defeat the amendment.
The Beacon's earlier story is below:
Backers of Amendment 3, the Nov. 6 ballot proposal to change how some Missouri judges are selected, have announced that they’re dropping plans to mount a campaign because of what a spokesman called “deliberately deceptive ballot wording’’ by Secretary of State Robin Carnahan.
“We’ve decided to preserve our resources and try other alternatives,’’ said James Harris, head of Better Courts for Missouri, the chief group behind the ballot proposal.
Click here to read the ballot language.
He added, “We’re going to explore more substantive changes,” which Harris acknowledged also will require voter approval. "We are not going away."
Harris said his group is convinced that "voters do not support the current process."
Better Courts has long sought the direct election of all of Missouri's judges. Currently, judges for the higher courts and in the urban and suburban areas around St. Louis and Kansas City are chosen according to the 70-year-old Missouri Plan, also known as the Missouri nonpartisan court plan.
The governor appoints those judges from a list of nominees assembled by commissions made up of lawyers selected by the Missouri Bar and average people chosen by the governor to staggered terms. The commissions dealing with appeals court or state Supreme Court judges also have the chief Supreme Court justice as a member.
Amendment 3 would have changed the selection commissions by removing the top justice as a voting member; it would also give the governor more clout by allowing him or her to appoint all the citizens during the governor’s term of office.
Harris said the changes were minor, but opponents disagreed, contending that the amendment would give too much power to the governor.
Harris says Amendment 3’s ballot wording was crafted by Carnahan, an opponent, as a way to encourage voters to reject it. Carnahan has denied such assertions; her office had yet to comment Tuesday.
Harris' side had sued to get better ballot language, but he also blames the Missouri Bar -- who he believes is the real force behind the opposition to any changes to the Missouri Plan.
Harris said that money was not an issue and that his side had at least $80,000 for a campaign during the final weeks.
The chief group opposing Amendment 3 offered a wary reaction to Tuesday’s announcement.
“For more than 70 years, Missouri has served as a national model for selecting judges based on merit and not on politics. Missourians simply do not support overturning our nonpartisan system for picking judges with one that allows politics into our courtrooms,” said Skip Walther, treasurer of Missourians for Fair and Impartial Courts.
“We will continue to educate Missouri voters on why it’s dangerous to allow politicians to control what is now a nonpartisan process," he continued. "We urge all Missourians to protect the nonpartisan nature of our courts by showing up to the polls on Nov. 6 and voting no on Amendment 3.”
