Openness an issue in selecting Mo. judges

Gov. Matt Blunt dislikes the process, but supporters say it removes political influence.
Monday, August 13, 2007 | 12:00 a.m. CDT; updated 5:22 a.m. CDT, Monday, July 21, 2008

JEFFERSON CITY — From city councils to county commissions to Missouri’s numerous executive branch boards, there is a common denominator in the way they conduct the people’s business.

It’s called the Sunshine Law.

The issue

The Sunshine Law states that Missouri’s executive branch boards must let the public know the time, place and agenda of their meetings. But the Appellate Judicial Commission, which screens candidates for Missouri’s Supreme Court, holds its meetings in secret. Some people, including Gov. Matt Blunt, want the commission’s operations to be more transparent.

It works like this: The public must be given notice of the time, place and agenda for their meetings, which shall be open for all to attend and can be closed only for certain sensitive topics, such as discussions about lawsuits and personnel matters. Their records also are public, with a few limitations.

But as has been recently highlighted, that is not the case for the Appellate Judicial Commission, a seven-member panel that screens candidates for the state Supreme Court and recommends three names from whom the governor can choose.

In recommending a successor for Supreme Court Judge Ronnie White, the judicial selection commission gave no public notice of its meetings, which occurred in secret, and has refused requests to publicly release its records.

That’s the way similar commissioners have functioned without much objection for roughly 60 years since Missouri voters adopted a constitution with a “nonpartisan” selection process for its appellate and urban circuit judges.

But now, some inquiring minds want to know what goes on behind those closed doors.

Chief among those inquirers is Republican Gov. Matt Blunt, a critic of the selection process who currently is weighing three candidates submitted to him to replace White.

Blunt has made many requests — and much ado about them in news releases — for additional information from the judicial selection commission.

“Clearly, we need a more transparent process,” Blunt said.

But Blunt stopped short of calling the commissioners lawbreakers for ignoring the Sunshine Law, as a Republican House member implied last week.

The commission asserts the requirements of the Sunshine Law do not apply to it. As evidence, it points to Article V Section 25(d) of the Missouri Constitution, which states the commission shall be administered “under such rules as the Supreme Court shall promulgate.”

Supreme Court Rule 10 requires that meeting notices go only to the commission’s members, making no mention of the public. It requires the identity of candidates for judgeships to be kept secret, except for the three finalists. It mandates the commission vote by secret ballot. And it requires that matters discussed at commission meetings shall be kept confidential.

That doesn’t leave much open to the public.

At a minimum, Sunshine Law attorney Jean Maneke contends, the Appellate Judicial Commission should have to abide by the basic rules of other governmental bodies and give public notice of the time, place and agenda for its secret meetings. But Maneke supports the current system for selecting judges.

In 1986, the state’s Western District appeals court struck down a rule adopted by the Missouri State Employees’ Retirement System closing its records. The court said a governmental body cannot by rule simply exempt itself from the Sunshine Law. The Supreme Court declined to hear an appeal, thus upholding the ruling.

But the Supreme Court has interpreted some of its own rule-making powers to be stronger than that, and effectively immune from the legislature.

The Missouri Constitution, in Article V Section 5, allows Supreme Court rules related to the “practice, procedure and pleading” of courts to be invalidated or changed by the passage of specific laws.

But Section 4 separately states that “the Supreme Court shall have general superintending control over all courts and tribunals.” In a 1985 case, the Supreme Court said that means the Legislature does not have power to interfere with rules adopted under that “superintending control.”

Like Section 4 of the Constitution, the section on the Appellate Judicial Commission contains no mention of legislative limitations on the court’s rules. Thus, the Sunshine Law cannot invalidate the Supreme Court’s rule requiring closed proceedings for the commission, said David Achtenberg, a law professor at the University of Missouri-Kansas City.

“There is no reason to think that the Legislature, when it passed the Sunshine Law, thought that it was attempting to override the long-established rules of the Missouri Supreme Court that required the judicial nominating commission to keep its proceedings confidential so as to maximize the likelihood of getting the best possible field of candidates,” Achtenberg said.

Achtenberg supports Missouri’s current method of selecting judges. His fellow law school professor William Eckhardt does not. But Eckhardt agrees the Supreme Court, under the present system, can legally close the commission’s meetings and records.

“They’re right,” Eckhardt said, “but my argument is that we need to have more openness.”

Eckhardt would like to do away with the Appellate Judicial Commission, allowing the governor to appoint whomever he chooses. That nominee then would have to be confirmed either by the Senate or, in an alternative plan, by a special panel of attorneys. Similar ideas have been backed by some Republican lawmakers.

Those options actually could give the public less notice of the finalists considered by the governor. Supporters of Missouri’s current system argue those alternatives would inject more partisan politics into judicial selections. But because there currently is no confirmation required for the governor’s appointee, Eckhardt argues there would be more public involvement in the approval of the ultimate nominee.

That policy debate could play out in a potential 2008 ballot issue asking voters to change Missouri’s judicial selection process.

If the current process remains in place, it also could require voter approval of a constitutional amendment to force open the meetings and records of the Appellate Judicial Commission.

Or the Supreme Court could shed sunshine on the commission by simply changing its rules.

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