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Missouri Court of Appeals upheld ballot summary for judge selections

Monday, September 17, 2012 | 8:04 p.m. CDT

JEFFERSON CITY — A Missouri appeals court panel on Monday upheld the ballot summary that voters will see for a proposed constitutional amendment to change the process by which appellate judges are nominated.

The ruling by a three-judge panel of the appeals court also certified the measure to appear on the November ballot. That could clear the way for absentee ballots to be mailed to residents stationed overseas — such as military members — beginning this weekend. Although another appeal is still possible, one of the attorneys who filed the lawsuit acknowledged Monday that time is running short.

At issue is a proposal dealing with the Appellate Judicial Commission, which screens applicants for vacancies on the state Supreme Court and the Court of Appeals. The measure would change the composition of the seven-member commission by allowing the governor to appoint four members, instead of three, and by making a Supreme Court judge merely an advisory member instead of a voting member of the panel. The other three panelists still would be chosen by members of The Missouri Bar.

The ballot proposal also would increase the number of nominees the panel submits to the governor for an appointment to four, instead of three.

The measure was referred to the November ballot by the Republican-led state legislature, which has complained that members of The Missouri Bar — in particular, trial lawyers — have too much sway in the judicial selection process. But lawmakers did not write their own ballot summary for the measure, so that task fell to Democratic Secretary of State Robin Carnahan.

Carnahan's summary states that the proposal "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 non-lawyers."

Supporters of the measure claimed in a lawsuit that the summary was insufficient and unfair — in part because it highlighted the potential for all of the appointees to be lawyers when the governor could just as easily appoint no lawyers to the panel. The lawsuit claimed that Carnahan's summary failed to mention what supporters contend would be the primary effect — reducing the influence of the bar by increasing the number of gubernatorial appointees to the panel.

While noting that Carnahan could have written a better summary, Cole County Circuit Judge Jon Beetem nonetheless ruled last week that her summary was neither legally unfair nor insufficient. The appeals court panel — consisting of Western District judges Joseph Ellis, Karen King Mitchell and James Smart Jr. — agreed.

Attorney Eddie Greim of Kansas City said his clients probably would decide by Tuesday whether to appeal further. He acknowledged a practical hurdle. By law, absentee ballots must be available to overseas voters such as military personnel by this Saturday and must be available to other voters by Sept. 25.

"We're very disappointed," Greim said. "We think the court put undue focus on parts of the provision, and we are certain that voters will be misled if this stays on the ballot. "

Carnahan spokeswoman Stacie Temple said Monday that "this decision is a positive development for local election authorities" who must be ready to have absentee ballots available by the approaching deadlines.

A group called Missourians for Fair and Impartial Courts, which opposes the ballot measure, also applauded the appeals court decision.

As a result of the ballot summary being upheld, "voters will know that a vote for Amendment 3 in November is a vote to put politicians and their political agendas in charge of our courts," said Skip Walther, treasurer for the group.


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