Tuesday, April 15, 2008

HJR 41 - Some Republicans Wish to Abandon a Neutral Judiciary

The Missouri Plan is under attack in the Missouri House. Here's a recent email from Rep. John Burnett:

House leaders closed debate with Reps lined up to talk

After a brief debate House leaders closed debated by moving the "previous question". I was left standing at the microphone with a proposed amendment in my hand unable to get recognized to offer it. My friends consoled me that it was something I should be proud of. The Majority clearly did not want to hear what I had to say.

By a vote of 80-63 the House gave first round approval to the resolution. All 11 Democrat Lawyers in the House voted against it. Burnett, Bringer, Donnelly, Grill, Jeff Harris, Connie Johnson, Rachel Storch, Mike Talboy, Mike Vogt, Terry Witte and Jake Zimmerman.

On the Republican side only Flook, Pratt and Lipke opposed it. Stanley Cox (R-Sedalia) was the sponsor and handled the bill on the floor. Judiciary Chair, Bryan Stevenson (R-Jasper) gave a speech that some thought was hilarious talking about how he loved all judges, young or old and in fact hopes to be a judge himself someday soon. Then he joined Cox, Bob Onder (R-Lake St. Louis), and Tim Jones (R-Eureka) in supporting it.

Final approval in the House requites 82 votes but it appears that they will be there. Will keep you posted on the vote there too.

State Rep John P. Burnett

Here's the letter I sent to Rep. Bryan Stevenson (R - Joplin):

As a lawyer to a fellow lawyer, I would urge you to reconsider your vote on HJR 49.

Missouri is a swing state – it is currently held by Republicans and will one day be held by Democrats. That’s a good thing. The Missouri Supreme Court and our Courts of Appeals should not be subject to those same swings. We tell our children in civics classes that judges are fair, neutral and that they don’t play flavors. By abandoning the Missouri Plan in favor of a system more like the federal government, we are inviting partisan games to be played with our judiciary. While I’m a Democrat, I believe that the entire Supreme Court appointed by then Gov. Ashcroft was a good one. What was wrong with the Missouri Plan when it gave us Judge Holstein or Judge Price? Our system worked then and works now. Let’s be proud of a neutral judiciary that is hard to be influenced by politics – either Democrats or Republicans. Please join your Republican lawyer colleagues Pratt, Flook and Libke in voting NO on HJR 49.

Please give me a call if you have any questions

What do we tell our kids - well, we shut off debate because we don't care what other people think and we want judges who will always decide with our side instead of being fair and neutral. Can't the Republicans see that eventually this will back fire and some liberal governor will appoint incredibly liberal judges?


Jim Byrne said...

Nothing about HJR-49 resembles the federal plan. Absolutely nothing!

Maybe Rep. Burnett should go back to civics class before he wants to amend any Bills. I can understand why the Majority doesn’t want to listen to him.

Rep. Burnett, like Stephen Bough and his cronies, is a Trial Attorney. Trial attorneys make up 5% of Missouri lawyers, yet dominate the judicial selection committee. The truth is - the trial attorneys don't want to give up the control of which judges get put on the bench.

As I stated before, HJR-49 is nothing like the federal model, and I challenge Rep. Burnett or Stephen Bough to identify any part of HJR-49 that they consider to resemble the federal model.

I’m not surprised to see that all 11 Democrat lawyers in the House voted against HJR-49. It is clear that those 11 are more interested in looking out for their fellow lawyers than their constituents.

Every licensed attorney in Missouri is a member of a committee of the Missouri Supreme Court. This committee is known as The Missouri Bar Association. (adopted by the Missouri Supreme Court in 1944) Every lawyer in Missouri answers to the Supreme Court. They get disciplined by the Supreme Court. They are beholding to the Supreme Court for their license to practice law. Who do you think lawyer-legislators are more beholding to; their constituents or those that control their license? –In the federal model, the U.S. Supreme Court does not have a 28,000 member army or a multi-million dollar purse to do their bidding. The federal model only permits the courts to sit in judgment, not launch political campaigns. (Missouri doesn't permit that either -Article V, Section 25(f) -but some Missouri judges ignore the Constitution.

Missouri was the first state to adopt the non-partisan plan. 32 other states adopted it in some form for either initial or interim appointment. (the federal model does not consist of a non-partisan plan)

Of those states that have an integrated Bar and use the non-partisan plan for initial appointment, like we do, only Missouri, Wyoming, and Alaska permit the Chief Justice to have a voting role. HJR-49 will remove the Chief Justice from the selection process (as most other states already have) and replace the Chief Justice with a gubernatorial appointee. (Wyoming and Alaska will learn. Alaska is a very young state and the population of Wyoming is less than 20% of that of Missouri)

HJR-49 will increase the number of nominees from 3 to 5. The American Judicature Society considers 3 to 5 nominees sent to the Governor to be optimal. (the American Judicature Society has been promoting the non-partisan plan since 1914)

HJR-49 makes the process be more open. Are the lawyers and judges of Missouri really afraid of a little sunshine?

HJR-49 will restore the Governor’s ability to reject one set of nominees. If the Governor does not make an appointment from the second set, it goes to the Lt. Governor and then to the selection committee for appointment. There is no reason in a democracy or a representative republic to permit a committee, whose members are not elected by the voters, to have the power to appoint –absolutely none! (In the federal model, the President appoints and the Senate confirms –only those elected by the people have a voice in who sits on the bench) HJR-49 leaves committee appointment only as a method of last resort.

HJR-49 only makes minor changes to the non-partisan plan. The non-partisan plan will still be the method used.

Why do Stephen Bough and Rep. Burnett have a need to misrepresent/exaggerate the prescribed changes contained in HJR-49? I can only hope that Rep. Stevenson is smart enough to look at the Bill, rather than taking Rep. Burnett at his word. –I’ll make sure that I call Rep. Stevenson in the AM.

HJR-49 –perfected- summary can be viewed by clicking here.

A recent compromise has been made to permit the governor to appoint an attorney to the selection committee, in hopes that a minority attorney might be appointed to the appellate selection committee –for the first time.

whistleblower said...

BTW Stephen...

The title should be about HJR 49.

HJR 41 stops judges from increasing taxes. It is also sponsored by a Republican, so you can be against it too...just because a Republican sponsored it.

Dan said...

Jim/Whistleblower =

Sorry, I didn't make it all the way through your screed, but, before I gave up, let me respond to your challenge "to identify any part of HJR-49 that . . . [I] consider to resemble the federal model."

Here's one - it adds a requirement that the appointment of all commission members shall be "subject to the the advice and consent of the Senate". That advice and consent phrase is an ugly little one that brought us the Clarence Thomas hearings, and will bring to Missouri the same level of rancor and political influence to the selection of commissioners.

I've read that EVERY SINGLE ONE of the "reforms" proposed for the Missouri Plan would increase the role of money and political partisanship into the selection of our judges. So far, that statement has been 100% correct, and HJR 49 is a great example.

whistleblower said...


The advise and consent of the Senate is for the selection committee members only, not the judges.

Article IV, Section 17 of the Missouri Constitution requires that; "The heads of all the executive departments shall be appointed by the governor, by and with the advice and consent of the senate."

This provision is intended to reduce the governors authority, and to permit a larger number of elected representatives to provide a check. Unlike any federal counterpart, the senate only has 30 days to act; this way the senate cannot just refuse to act.(as they have done at the federal level)

The selection committee members do not run for retention election. Doesn't it make sense, in a representative republic, to involve the elected representatives of the voters?

It is a stretch to claim that the non-partisan selection of judges in Missouri will resemble the federal model. -I guess we could really stretch it, and claim that Missouri judges wear robes, just like the federal judges, so it must be the same.

How does HJR-49 increase the role of money? I really can't see any portion of HJR-49 that would permit money to influence the process.

Your claim that HJR-49 changes partisan influence is unfounded. The current selection committee is partisan, just behind closed doors.

If the advice and consent provision was removed from HJR-49, would you support it? Why or why not?

Stephen Bough said...

Isn't debate nice? Jim and whistleblower, thanks for using your names.

I do apprecaite the debate and putting our names on things, let's hold off on name-calling. I didn't know I had cronies.

Let's have more sunshine, all around. I have no problem with making the process more open. Let's discuss how to make that happen without having every interview for the Supreme Court on Youtube.

What's wrong with Pratt? Jim - is he one of the evil trial lawyers or just the Missouri Bar?

Thanks for engaging in civil debate on important issues. This little blog is working!

Jim Byrne said...


Sorry, I didn't know that having cronies was in itself considered to be name-calling. I don't think that I am the first to consider that cronyism is prevalent among attorneys, especially those strong party alliances.

What would be wrong with having every interview for the Supreme Court available on YouTube?

I can't see a reason to keep an interview for a position that wields so much power secret. The voir dire process has always been public. Why should the interview of a jurist be any different than the interview of the juror?

"Historical evidence" reveals that "since the development of trial by jury the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown" (Press-Enterprise Co. v. Superior Ct., 464 U.S. 501).

"What's wrong with Pratt? Jim - is he one of the evil trial lawyers or just the Missouri Bar?”

Rep. Pratt is a trial lawyer and a member of the Missouri Bar. Whether or not he is "evil" is yet to be determined. (Note: evil is your term; not mine)

I left a message with Rep. Pratt's Office. I doubt that I will hear back from him today. Wednesday is the longest day when they are in session. If/when I do hear from him, I'll let you know.

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