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Judge reviews ballot summary for Missouri court measure

Friday, September 7, 2012 | 6:59 p.m. CDT; updated 8:15 a.m. CDT, Monday, September 10, 2012

JEFFERSON CITY — A ballot summary for a constitutional amendment dealing with the appointment of Missouri appellate judges is inaccurate, unfair and suggests lawyers would have a greater role in selecting judges, critics said Friday in asking a judge to toss it out.

Cole County Circuit Judge Jon Beetem did not immediately make a decision after a hearing on a lawsuit seeking a revision of the summary that will appear before voters on Election Day. Beetem said he hoped to resolve the case early next week.

Ballots for those serving in the military must be ready by Sept. 22, and absentee ballots must be available Sept. 25.

The proposed constitutional amendment would change the composition of a state commission responsible for nominating finalists for vacancies on the Missouri Supreme Court and the Missouri Court of Appeals. The measure also would increase the number of judicial finalists submitted to the governor from three to four.

Currently, the nominating commission consists of three members of The Missouri Bar, three gubernatorial appointees who cannot be members of the bar and a Supreme Court judge. Under the proposal, the judge would be replaced with a fourth gubernatorial selectee, and governors would be allowed to appoint lawyers to the commission. In addition, a former appellate judge would serve as a nonvoting member.

The Republican-led General Assembly passed the proposal this year, and voters will decide Nov. 6 whether to enact it. Because the legislature did not write a ballot summary, that responsibility fell to Democratic Secretary of State Robin Carnahan.

Carnahan's summary states: "Shall the Missouri Constitution be amended to change the current nonpartisan selection of Supreme Court and Court of Appeals judges to a process that gives the governor increased authority to:

— appoint a majority of the commission that selects these court nominees; and

— appoint all lawyers to the commission by removing the requirement that the governor's appointees be nonlawyers?"

Missouri Solicitor General James Layton defended the summary on behalf of the secretary of state's office.

Asked about the second bullet point, Layton said, "What she says is accurate, and I believe conveys the concept that before the governor had a limitation on all of his appointments. Now, the governor has a limitation on none of his appointments."

Clayton Callen, an attorney representing seven people challenging Carnahan's summary, said it is argumentative to pick out one possibility in which the governor appoints four lawyers to the nominating commission while omitting mention that the governor also could decide to appoint no lawyers.

"If she's going to include hypotheticals, she had to do all of them or none of them," Callen) said.

One alternative proposed by critics would state: "Shall the Missouri Constitution be amended to:

— remove the requirement that a majority of the voting members of the Appellate Judicial Commission be members of the Missouri Bar; and

— increase the number of appellate judicial candidates nominated by the commission from three to four?"


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