Bench Press

Judge Dierker, like all circuit judges in the city of St. Louis and the counties of St. Louis, Jackson, Platte and Clay, was placed on the bench under a system known across the country as the Missouri Plan. Here in Missouri it's called the Nonpartisan Court Plan, because rather than run for the position in a partisan election, judges are first nominated by a judicial commission and then appointed by the governor. All judges of the Missouri Supreme Court and the Missouri Court of Appeals are also covered under the plan.

These judges are held accountable under the system by going up for retention elections at the end of their terms. If a judge receives a majority vote for retention, he or she remains on the job. If not, the judicial commission selects three new candidates and the governor chooses one of them, but no one seems to recall a judge's failing to get a majority vote in a retention election.

Jennifer Gille Bacon, president of the Missouri Bar Association, explains that the system was established back in the 1940s after widespread complaints that political machines rigged judicial elections, especially in Kansas City and St. Louis. To alleviate the political infiltration, every county -- except the city of St. Louis and Kansas City -- was allowed to vote on whether to enter into the plan. All except St. Louis, Platte and Clay counties voted to continue electing their judges.

The idea, Bacon says, is to allow judges to avoid accepting campaign contributions from attorneys and businesses when the judge runs for election.

"In states where all of the judges are elected, the people you meet from that state widely perceive their courts to be bought and paid for," Bacon says. "In Texas, where they elect their judges, for example, there are millions of dollars spent to put candidates on the Supreme Court. The laws in Texas go all over the place as a result, because whenever there's an election, things change because special interests have changed the composition of the court. You see a lack of consistency and predictability in the law, because you get these very skewed, very partisan people sitting on the bench."

Seth Andersen, director of the Elmo B. Hunter Citizens Center for Judicial Selection of the American Judicature Society, points out that judicial elections are usually only dog-and-pony shows anyway.

"The judges can't articulate any personal philosophy or social philosophy on any issue that could potentially come before them in the future because if they do, they are biasing themselves beforehand," Andersen says. "The example would be 'I'm a tough-on-crime judge' or 'I'm an anti-abortion judge' or 'I'm a pro-death-penalty judge.' That's where we get into judicial activism, and while I've heard all kinds of definitions thrown around, the one that's probably most true is 'Judicial activism is a decision you don't like.' What it really is is when a judge steps out of that role of being a finder of fact and applier of the law and the judge uses their own or somebody else's political or social philosophy into their ruling.

"The reason judges are prohibited from taking stands or making anything close to a campaign promise on anything substantive is a very logical reason. Why would you want to popularly elect judges who can't make any kind of campaign promise and can't be beholden to any constituency?" Andersen concludes.

But others feel the system of appointment is just as political as that of electing judges, with the widespread belief that the governor knows full well who will be appointed to the bench long before the judicial commission submits its list of names. State Rep. Timothy Green (D-St. Louis County) sponsored a bill this session in the Missouri Legislature that would dismember the nonpartisan court plan in St. Louis city and open up the judiciary to elections.

"I feel the current process we have is political," Green says. "When there's a vacancy, all these attorneys try to get one of their fellow attorneys into the judgeship. Now they already contribute to the campaigns of politicians, and they try to use that influence to get their friends appointed. So if you're going to use the political process anyway, at least make the judges go out and meet the people. They need to be answerable to the public, and the only way to do that is to get them out there talking about their ballot candidacy."

Whereas proponents of the nonpartisan court plan, including the American Judicature Society and the American Bar Association, argue that judges are held accountable when they go up for retention, opponents argue that most voters don't have a clue what a judge's name on the ballot represents when they vote to retain or not.

Lawyers and their clients can also file complaints with the Commission on Retirement, Removal and Discipline if they feel a judge treated them unfairly. But even that isn't always effective, because few attorneys want to file complaints against judges they are likely to meet again in the courtroom. As one commission member noted in a 1990 complaint filed against an outstate judge, " ....people hesitate to make publicized complaints about sitting judges."

-- Melinda Roth

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