Fair courts in jeopardy

“But that’s not fair!” This is one of my favorite phrases. I hear it all the time—mostly from my children, but also from members who have experienced some tyrannical action by their school districts or who have been wrongly accused of abusing or neglecting a child. I love the phrase because it reminds me of a time when I was idealistic—this was BEFORE law school, of course—when I used to think that the rules of fairness applied to the world at large. I now know differently, but I really love to hear that there are people, adults even, who still ascribe to that same sense of idealism. Unfortunately, all too often, I have to remind people that life (and the law) is not always fair.

On May 29, 2007, in the Independence collective bargaining case, the Missouri Supreme Court overturned a 60-year-old precedent that denied the constitutional right of collective bargaining to public employees. The decision to restore this constitutional right rejuvenated my sense of idealism. It affirmed for me that fairness can prevail, that there are people out there who understand what the right thing to do is and are not afraid to do it.

Whether the topic is school funding, employee rights, workers compensation or collective bargaining, Supreme Court judges need the freedom to make decisions about the law without the fear of losing their jobs at the hands of political forces. Missouri’s citizens, including education employees, benefit from the current system, which emphasizes fairness over politics, but the system we know is under attack.

Missouri’s system for selecting all appellate court judges (including Supreme Court judges) and some circuit court judges is known as the Missouri Court Plan or the Nonpartisan Court Plan. This system of selecting judges was adopted in 1940 when a proposed amendment to the Missouri Constitution was placed on the ballot by initiative petition. The impetus for the amendment was widespread abuses of the judicial system by corrupt politicians in St. Louis and Kansas City. The citizens of Missouri wanted a method for selecting judges that would prevent political influence on court decisions.

The Missouri Court Plan created a nonpartisan judicial commission, comprising the Chief Justice of the Supreme Court, three lawyers selected by the Missouri Bar and three citizens selected by the governor. The lawyers and citizens on the commission serve six-year terms. When there is an opening on a court covered by the plan, the judicial commission receives and reviews applications, conducts interviews, and selects three candidates to recommend to the governor. The governor may select one of those candidates to fill the position; however, if the governor does not select one of the candidates within 60 days, the commission selects from among the three candidates. Judges selected under this system must face a retention vote after one year in office. Since its inception in Missouri, the plan has been adopted by 34 other states.

In recent years, there has been a move to do away with the Missouri Plan. Opponents of the plan want judges to be elected or appointed by the governor. They claim that our current system of selecting judges results in “judicial activism” since the judges are not constrained in their interpretations of the law by concerns about whether or not they will be re-elected, or removed from office by the governor who appointed them.

The Supreme Court’s decision in the Independence case has been cited as an example of “judicial activism” that warrants a new method of selecting judges. The Court in that case overturned an unfair decision made 60 years ago and gave plain meaning to the language of the Missouri Constitution. The judges who decided the case did not have to worry about whether their decision to do the right thing would result in their losing their positions or prevent them from being elected in the future. And isn’t that how we want our judges to make decisions—based on what is fair, not what is politically acceptable?

Missouri NEA is a member of the Missourians for Fair and Impartial Courts, a broad-based coalition that includes business, education, religious, professional and consumer groups. To join the coalition or learn more, visit http://protectjustice.org/join.

by Jacquie Shipma
MNEA manager of legal services

sb, winter '07