by Dale C. Doerhoff, Chair and State Coordinator, Missouri Judicial Performance Evaluation Committees
In the holiday classic, “It’s a Wonderful Life,” George Bailey has a vision of what the world would be like if he had never been born. To his horror, Bailey sees that, without him, darkness and corruption take over. His idyllic hometown of Bedford Falls is no more. Instead, it is “Pottersville,” a dark and wicked world where the rule of law has been replaced by the unchecked will of Mr. Potter—the richest man in the realm—who uses his money for power and his power for money.
Missouri’s Non-Partisan Court Plan, commonly known as the Missouri Plan, was established in 1940—six years before “It’s a Wonderful Life” debuted. How and why did it come into existence? What would the Show-Me State be like without it?
In the 1930s, Kansas City was comparable to Pottersville. The Mr. Potter of that epoch was Tom Pendergast, the boss of a political machine that fixed elections, had its hand in every public works business deal, and controlled the judicial system—from the Circuit Court of Jackson County to the Supreme Court of Missouri.
In 1937, The Missouri Bar took the lead in countering the corruption of justice by organizing the Missouri Institute for the Administration of Justice. During its first meeting, held in Columbia, the institute adopted an outline of what would eventually become Missouri’s Non-Partisan Court Plan.
But adoption would require a constitutional amendment. Proponents of the plan devised a two-prong strategy. First, they would ask the legislature to put the amendment on the ballot through the referendum process. If that failed, they would go directly to people with initiative petitions for a constitutional amendment.
Because Pendergast’s reach extended to the legislative branch, the measure didn’t make it to the ballot. So the bar and the institute moved to plan B and circulated initiative petitions. The effort was successful, and at the November 1940 general election, citizens adopted the Missouri Plan. It was hailed nationwide as a successful model and has since been adopted in one form or another by more than 30 states. More details on the creation and defense of the Non-Partisan Court Plan are described in the Fall 2015 edition of “Precedent.”
Despite widespread acceptance of the plan, leaders of the movement were under no illusions about the fact that their work would be ongoing. William W. Crowdus, director of the Missouri Institute for the Administration of Justice, wrote an article published in the Missouri Bar Journal in which he said: “The Missouri Bar Association has achieved a great victory but it must be ever vigilant to preserve the fruits of its accomplishment.”
Imagining Life without the Missouri Plan
What would our state and its courts be like if Missouri’s Non-Partisan Court Plan had never been born? A glimpse into an alternative world might offer a clue.
Let’s drop in on Alabama, where in 2006, Chief Justice Sue Bell Cobb says she needed $2.6 million to win a partisan judicial election over an opponent who raised and spent nearly $5 million. That’s $7.6 million in a state with 4.8 million people—80 percent of Missouri’s population at the time. Adjusted for size, that would mean a $9 million race for a supreme court seat in Missouri.
In 2006, Missouri had three supreme court judges on the ballot: Judges William Ray Price, Jr., Mary Rhodes Russell, and Stephen N. Limbaugh, Jr. In our vision of the world without Missouri’s Non-Partisan Court Plan, they are all engaged in hotly contested, partisan elections. If one seat costs $9 million to contest or defend, how much will be spent on three seats when virtual control of the court is at stake? $20 million? $25 million? Where does that kind of money come from?
In her article, Cobb wrote that to raise $2.6 million, she had to do things that made her feel “awfully unsavory.” Judges and would-be judges are not supposed to ask for money directly, so she would call lawyers she felt might be friendly to her and engage in general chitchat about family and the legal practice. The most she could say about the campaign was: “I’d very much appreciate your support for my campaign.” At that point, she would hand the phone over to her finance director to make the “ask” for money.
Without the Missouri Plan, that same thing would likely happen in 2006 in Missouri—times three. You would get calls from Price, Russell, and Limbaugh, as well as their respective opponents and finance directors from all parties. “Can we count on you for at least $5,000? Can we use your name in a full page ad in support of the candidate?”
And what happens after such an election? Let’s go back to Alabama, where two days after winning her race, Cobb took a call from a national legal publication. She expected questions about what it was like to be the first female chief justice in Alabama or what her plans were for court reform. But those weren’t the questions. The reporter went right to the elephant in the room: “How can you assure the people of Alabama that the contributions you sought are not going to impact how you rule? And how can you convince the people of Alabama not to believe that their courts are for sale?”
Now apply that experience to our tour of our state without the Missouri Plan. How will the millions of dollars that poured into the campaigns be viewed by the people? Will they believe that justice is for sale? Of course they will—and the credibility of the courts and respect for the rule of law is eroded.
Alabama is not the only alternative possibility of what might have been in Missouri. As a result of the decision in Citizens United and a more aggressive attitude on the part of special interest groups that want to use wealth and power to bend justice to their will, the pressures on fair and impartial courts to be something other than fair and impartial have increased. Big money is appearing in increasing amounts seemingly everywhere.
Three states saw record spending on judicial elections in the last election cycle: North Carolina ($6 million), Tennessee ($2.5 million), and Montana ($1.5 million). Retention elections in merit selection states are not exempt from this trend; four states saw a combined $6.5 million spent on campaigns for and against retention of incumbent judges.
This happened in Missouri in 2004. Three weeks prior to the November general election, a coalition of special interests launched a campaign to unseat Judge Richard B. Teitelman from the Supreme Court of Missouri. Regional newspapers called out the campaign, with the Springfield News-Leader suggesting that it was aimed at sending a message to our highest court.
We also saw an attack on an incumbent last year in Cole County. The county is not a Missouri Plan circuit, so Presiding Judge Pat Joyce was up for reelection on a partisan ballot. A month before the election, a stream of dark money started flowing from a Washington, D.C., PAC to defeat her for reelection. It swelled to more than $300,000, two-thirds of which was used to fund a negative campaign that tried to smear her in the eyes of voters. $200,000 bought a lot of local television ads and mailings to what appeared to be every voting household in the county.
Within a month after the election, the PAC had to file its list of donors, and on it was a St. Louis billionaire who sometimes has ballot title litigation in Cole County. That’s the way dark money works. The “Potters” of the world don’t want voters to know who they are before the election, but after the election is over, they want the judges to know. They get their money’s worth that way, win or lose. The message has been delivered: “Adhere to our political ideology or risk our wrath.”
Threats to a fair and impartial judiciary in Missouri also appear from time to time in the General Assembly. In 2007, there were four resolutions filed in the House related to the courts. HJR 33 proposed the elimination of the Missouri Plan by giving the governor the power to appoint judges. The resolution did not gain final passage. Five years later, another attempt was made to politicize Missouri’s Non-Partisan Court Plan. A proposed amendment was introduced in the Senate to give the governor the power to appoint four of the seven members of the Appellate Judicial Commission in his first term, eliminating the current method of staggering the appointments to the commission so one governor cannot dictate who will be on the panel during his or her first term. The proposed change appeared on the 2012 ballot as Amendment 3. Missouri voters defeated the measure 76 percent against, with only 24 percent of voters in favor.
Last year, our Missouri courts disposed of 323,000 civil cases in the circuit courts, more than 100,000 of which were domestic relations cases. The circuit courts disposed of 358,000 criminal cases, more than 44,000 of which were circuit court felony cases and more than 54,000 of which were associate division felony cases. No matter how honest or corrupt a court system may be, in each of these cases, the winners were probably happy. But it’s the losers we have to worry about. If they do not feel that they have had their day in court or equal justice under law, and if they feel that the rich and powerful are given preference because of their wealth and power, then they will not accept the result, and the disputes will not end in the courtroom.
Regardless of the reasons, efforts to overturn the Missouri judicial system happen.
Supporting the Plan
By providing staff support for committees and publicizing judicial performance evaluations and recommendations through outreach efforts such as YourMissouriJudges.org, The Missouri Bar and local bar associations have been zealous defenders of the plan over the 75 years of its existence.
Individuals can also continue the mission to preserve and protect fair and impartial courts in a variety of ways, including the following:
· Request a volunteer from The Missouri Bar Speakers’ Bureau to talk to your community groups and organizations about the Missouri Plan.
· Review figures from the Office of State Courts Administrator about what your courts actually do.
· Host the Missouri Plan traveling exhibit or ask your local bar or community organizations to do so. To learn more, visit mohumanities.org/missouri-plan or contact a representative at The Missouri Bar.
· Read John Grisham’s “The Appeal,” a novel about how a rich businessman used his money to buy a seat on the Supreme Court of Mississippi to flip the jury verdict against his company in a case on appeal. In the author’s note at the end of the book, after giving the usual disclaimer about how the characters, places and events are fictional, he adds this statement, which is unusual for a disclaimer in a novel:
“Now that I have impugned my own work, I must say that there is a lot of truth in this story. As long as private money is allowed in judicial elections we will see competing interests fight for seats on the bench. The issues are fairly common. Most of the warring factions are adequately described. The tactics are all too familiar. The results are not far off the mark.”
The story in “The Appeal” bears a close similarity to the Caperton v. Massey Coal Co. case out of West Virginia. After a jury handed down a verdict of $50 million against the Massey Coal Company for fraud and tortious interference with contract, Don Blankenship, Massey’s chairman and principal officer, knowing that the West Virginia Supreme Court of Appeals would hear the appeal, contributed $3 million to defeat an incumbent judge on the court and elect Brent Benjamin in his place. Blankenship’s $3 million was the majority of the money on Benjamin’s side of the campaign, and Benjamin won the election by a relatively narrow margin. After he was on the bench, he refused to recuse himself from the Massey Coal Company appeal and made self-serving findings on the record that he was not biased in favor of the company. The court reversed the $50 million verdict, Judge Benjamin concurring.
The United States Supreme Court granted certiorari and reversed. The Fourteenth Amendment’s Due Process Clause is enforced with an objective standard under which implementation does not require proof of bias. Whether Judge Benjamin was correct in finding himself unbiased was irrelevant. That much money in a judicial election from someone with a case before the court objectively violates due process.
Don’t let what happened in the Massey Coal case in West Virginia happen in Missouri. Speak out when the rich and powerful try to take over our courts. Don’t let special interests turn Missouri into a “Pottersville.” Defend Missouri’s Non-Partisan Court Plan.
 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009).
“It’s a Wonderful Life” image courtesy of twm1340.