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How Amendment 3 Will Help

How Amendment 3 Will Help

Rep. Stanley Cox, a Republican, represents part of Lafayettte, Pettis and Saline counties (District 118) in the Missouri House of Representatives.

AMENDMENT 3, the proposal to make changes to the Missouri Plan to enable Missouri citizens to exercise more accountability over judicial selection, is not a radical change from the way the system currently works. Instead, it is a package of modest reforms — the most modest package ever offered — that will make small but important changes to the way we select our highest judges to empower Missouri voters.

The Missouri Plan as currently practiced in our state is flawed. By allowing Missouri Bar members a clear majority on the Appellate Judicial Commission, the system has enabled special interest groups (particularly those affiliated with trial attorneys) to exercise far too much influence over judicial selection.

The result of this influence is easy to see. All you have to do is look at the Supreme Court’s recent decision to overturn the cap on noneconomic damages in medical malpractice cases, the centerpiece of the 2005 tort reform law.

For years, trial attorneys have pushed to have the caps invalidated but were consistently rebuffed until now, when they finally convinced the Supreme Court to invalidate two decades of precedent and strike down this important protection for physicians and other medical professionals. Now the door has been opened for more multi-million-dollar lawsuits, lawsuits that will certainly help enrich the attorneys who hold so much influence over the judicial selection process.

This and other cases have had a negative impact on our state’s litigation environment and our courts’ national reputation. Our courts continually defy common sense and judicial precedent by overturning legal protections that are meant to discourage the proliferation of frivolous lawsuits, and this has resulted in a flood of litigation in Missouri’s courts. The U.S. Chamber of Commerce Institute for Legal Reform recently rated Missouri 34th in the nation for our state’s handling of tort lawsuits, and it rated our courts a dismal 41st for judicial competence and 36th for judicial impartiality. In their 2010 Tort Liability Index, the Pacific Research Institute ranked Missouri 45th in the nation.

Holding courts accountable

The medical malpractice decision is just the latest in a line of about-faces for our highest courts, and similar decisions will continue to become the norm as long as there is no democratic accountability over the judicial selection process.
Retention elections do not help in this regard, as they are not a part of selection; you can vote a judge out of office, but you have no influence over whom is selected in their place. Missourians need real changes to allow us to exercise a voice in the selection process and eliminate special interest influence, which would allow us to stop activist judges before they are appointed.

Amendment 3 will help fix this by making several minor changes that will enable more public accountability over judicial selection and reduce opportunities for special interests to impact the selection process.

The most important change is allowing the governor to appoint four members of the commission instead of just three: two in the first year of their term and two in the third year. This will mean that for the first time in the plan’s history, the people of Missouri will be able to hold the governor accountable for the actions of the Appellate Judicial Commission because gubernatorial appointees will have a four-to-three majority on the commission. Under the current system, if the commission chooses an obviously biased panel of judges, the governor can easily pass the buck and blame it on the four members who he or she played no role in appointing.

Trial attorneys have used this particular shortcoming of the Missouri Plan to entrench their influence over the judicial selection system, and it is time that we correct this problem by allowing publicly accountable members to hold a majority on the commission.

Aiming above the status quo

Amendment 3 will also require a retired judge to be appointed to serve the Appellate Judicial Commission in a nonvoting, advisory capacity. This judge will serve in place of the sitting Supreme Court judge who is currently allowed to serve as a voting member. Judges should not be allowed to play a role in picking who will serve on the court with them. It creates the potential for impropriety, as judges under the current system are understandably tempted to pick their fellows based on who is most likely to agree with their legal point of view, not just by whether they have the skills to serve as a judge on our highest courts. Nationwide, it is uncommon for judges to serve in a voting role in Missouri Plan states; only nine of the 23 states allow judges to serve on the commission at all, and of those, only seven allow them to serve in a voting capacity.

Finally, Amendment 3 will require the Appellate Judicial Commission to nominate four people for every vacancy on our highest courts, an increase of one. This will make it harder for commissioners to pack the panel in a way that would benefit one nominee. In addition, it will help to encourage more diversity on the panels by forcing the commission to consider more than just three options.
By making these minor changes and giving the public a greater voice in the judicial selection process, we can help clean up some of the problems with the Missouri Plan and ensure our legal system will produce fair, consistent and predictable results.

Missouri, quite literally, cannot afford the status quo.

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