What is the Missouri Plan?

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A view of the south side of the Missouri Capitol building in Jefferson City [Zachary Reger]
Missouri’s most notable claim-to-fame in modern legal philosophy is often overlooked.

The state’s constitutionally guaranteed system of merit-based judicial selection — the “Missouri Plan,” as it’s often called — marked a seismic shift in the process of court appointment, one that swept the nation in a grand revision of how we populate many of our appellate and high courts.

By forgoing popular alternatives of direct election and nomination-confirmation of state judges, Missouri ushered in a new “nonpartisan” era of judicial selection.

After the Plan’s initial adoption in the mid-1900s, dozens of states followed, creating merit-based systems of their own. Newly democratic nations across Europe and South America drew inspiration from the Plan in writing their own constitutions, as did even a few established democracies during historic reformation votes.

And Missouri started it all.

What follows is a brief overview of the philosophy and origins of the Missouri Plan, a lightly edited excerpt taken from my undergraduate thesis work at the University of Missouri.


What is the Missouri Plan?

In 1914, Albert Kales, a professor at Northwestern University, proposed reforms to current systems of judicial selection, which at the time were dominated by partisan elections. The Kales Plan proposed a merit-based system by which an independent commission would select nominations for open court seats.[1] In 1940, the state of Missouri became the first to officially adopt a modified version of the Kales Plan, dubbed the Missouri Nonpartisan Court Plan, in a statewide referendum. Missouri voters would elect to retain the Plan two years later, the same year a fourth constitutional convention was called to revise the state charter.[2] The Plan would maintain its status as a constitutional provision in the updated document, adopted by the state in 1945, which serves as law of the land to this day.[3]

The Missouri Plan, found in Article V § 25 of the state constitution, calls for an “Appellate Judicial Commission” to narrow candidates for open seats on the Supreme Court and each of the three appellate court districts. The Supreme Court selects one of its own for the commission — traditionally, the chief justice[4] — to be joined by three members of the Missouri bar and three non-lawyer citizens. One bar member is selected from each of the three appellate districts, as is each of the private citizens. Lawyer members are appointed by the Missouri bar itself, while the sitting governor is responsible for selecting the non-lawyer citizens. The seven-member commission reviews candidates, selecting three to submit to the governor, who makes the final appointment. If the governor fails to make an appointment after 60 days, the commission is empowered to act in his stead.

In addition to selection-by-commission, Article V § 25 also requires appellate court judges to stand for retention elections after their first year in office. During the next general election following the one-year benchmark, voters face a ballot question on whether to re-elect said judge for another term in office — this time, for a full 12 years, pursuant to Article V § 19. A majority of affirmative votes retains a judge, whereas anything short of a majority requires a new selection by the commission system detailed above. No appellate judge has ever failed a retention election since the system originated, and only three trial judges have been voted out.[5] This method of retention seeks a level of accountability while maintaining the nonpartisan objectivity of state courts; when the judge is up for re-election, he or she is listed on a separate ballot without party affiliation.[6] Appellate judges have no limit on the number of consecutive terms they may serve, and some may argue that the extremely high success rate of incumbent judges thus far has granted them a virtual life tenure.[7]

The final subsection of Article V § 25 details a mandatory retirement age for state judges. At the age of 70, all appellate judges must retire through a plan provided by state law. If they wish, they may also retire earlier. Retired judges can apply for service as a senior judge, where they may participate in court procedures on a special case-by-case basis. Under such circumstances, the senior judge serves with the same power and authority as an active judge in the same role.

A History of Political Corruption

In the pre-Revolution American colonies, the British sought to control judge salaries to keep them aligned with new Parliamentary acts, such as the Townshend Act. Some judges had previously provided modest relief to those charged under some Parliamentary laws, leading Great Britain to clamp down on judicial procedures. This greatly angered the colonists, and is likely a component in why our federal system was formed to prize judicial independence.[8] The Declaration of Independence echoes this worry when it says that the King “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” When it came time to organize a strong, federal system, the United States Constitution was written to establish protections for judicial independence. These included life tenure and “a salary which cannot be diminished.”

As former U.S. Supreme Court Justice Sandra Day O’Connor noted in a 2009 symposium speech at the University of Missouri School of Law, this was likely a way to moderately de-politicize the decision making of American courts; greater judicial independence would make judges less indebted to the overtly political legislative and executive branches of the new tripartite government. “The Founders of our Nation, having narrowly escaped the grasp of a tyrannical government, saw fit to render federal judges independent of the political departments with respect to their tenure and salary as a way of ensuring they would not be beholden to the political branches in their interpretation of laws and constitutional rights,” she said.[9]

However, the rise of populism under the presidency of Andrew Jackson led to the establishment of partisan elections for many judgeships.[10] Missouri began electing its judges in 1848. This gave political bosses a heightened degree of control over a new government body, leading to allegations of corruption and unethical operation.[11] These political functionaries were able to influence both the selection process as well as coerce those judges who were already appointed. They did this by threatening the withdrawal of substantial donations to re-election campaigns, or even through fielding and financing more obedient challengers.

For all this, the partisan election process did little to fully vet the qualifications of potential judges, descending into yet another line to fill for single-party voters. Further, circumstances of little relevance to judicial efficacy tended to sway Missourians’ opinion, especially during wartime. Fred L. Williams, a judge on the Missouri Supreme Court during this era, remarked on how poorly educated his voters seemed to be as they elected to retain or remove certain candidates. “I was elected in 1916 because Woodrow Wilson kept us out of war — I was defeated in 1920 because Woodrow Wilson hadn’t kept us out of war,” he said. “I do not believe five percent of the voters in Missouri ever knew I was on either ticket.”[12]

However, the progressive movement of the early 20th Century swung the pendulum in the opposite direction — it was during this period that the Kales Plan emerged in academia. Soon after, the people of Missouri, fed up with a court system commandeered by moneyed interests, voted to become the first state in the Union to institute a merit-based selection plan.[13] Today, variations of this system remain the most prevalent method of appellate judicial selection in the United States.[14]


Footnotes

[1] Cort VanOstran. “Justice Not for Sale: A Constitutional Defense of the Missouri Plan for Judicial Selection.” Washington University Journal of Law & Policy 44 (2014): 163–164.

[2] African-American Voting Rights Equal Defense Fund v. State of Missouri. U.S. Court of Appeals, Eighth Circuit. Jan. 1998.

[3] Blackmar, “Missouri’s Nonpartisan Court Plan,” 203.

[4] Anonymous, “Missouri Courts Homepage.” .

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Sandra Day O’Connor. “The Essentials and Expendables of the Missouri Plan.” Missouri Law Review 74.3 (2009): 481.

[9] Ibid., 482.

[10] Ibid., 483.

[11] Ibid., 484.

[12] Ibid., 485.

[13] Brian Fitzpatrick. “The Politics of Merit Selection.” Missouri Law Review 74.3 (2009): 677.

[14] Ibid., 678.

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Author: Zachary Reger

A graduate of the University of Missouri with degrees in journalism, philosophy and film studies, Zach's primary interests lie in political reporting, media production and social philosophy.

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