Capitol Calling

Change my attempt to good intentions

I wrote about the new initiative yesterday from opponents of the Non-Partisan Court Plan for Missouri Lawyer Media. If approved by voters, the constitutional amendment would require direct elections for Missouri Supreme Court judges, state appeals court judges and judges presiding around St. Louis, Kansas City and Springfield.

The proposal is not likely to allay critics of changing the plan. Chip Robertson, an attorney who served as a Missouri Supreme Court judge, pointed to a West Virginia case involving a Supreme Court judge who was put on the bench through a direct election.

In that case, a judge named Brent Benjamin was elected to the West Virginia Supreme Court. His election was aided with a $3 million donation to an outside group from the CEO of a coal company. When that company had litigation before the court, Benjamin decided not to remove himself from the case. His vote ended up swaying the decision in the company's favor.

In a 5-4 decision, the U.S. Supreme Court decided to send the case back to the West Virginia Supreme Court. In writing for the majority, Justice Anthony Kennedy wrote:

Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome.  Just as no man is allowed to be a judge in his own cause, simi­lar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

In response, ShowMe Better Courts executive director James Harris said by Robertson's logic, governors and lawmakers could be "bought off." He pointed to a study that he said showcased the benefits of judicial elections.

"The only people who are going to oppose direct democracy are the wealthy lawyers who defend the current process," Harris said. "So we welcome wholeheartedly a discussion on either one of these."

Most of county judges in Missouri, by the way, are elected.

The group's other initiative - which would replace the current system with one that in part resembles the federal model of judicial selection - is currently being litigated in court.

The aforementioned case was the inspiration for The Appeal, a book written by John Grisham.

Phillips tapped as U.S. Attorney

A few days after President Barack Obama picked Cole County Judge Richard Callahan to be the U.S. Attorney for Missouri's Eastern District, the Democratic chief executive nominated Beth Phillips for the open position.

Phillips - who had served as an assistant U.S. attorney since 2008 - was nominated as the U.S. Attorney for the Western District of Missouri. Her nod was announced with several other U.S. attorney nominations.

"The men and women I am nominating today boast impressive legal careers that speak to their exceptional intellect and diligence," said  Obama in a statement. "They share a commitment to the pursuit of justice that will make them esteemed U.S. Attorneys and distinguished public servants. I am grateful for their willingness to serve their country."

Both Phillips and Callahan will need to be confirmed by the U.S. Senate in order to take their positions. If Callahan's nomination is successful, Gov. Jay Nixon will have to pick someone to fill the Democratic judge's position.

Callahan tapped to be U.S. Attorney

President Barack Obama selected Cole County Circuit Judge Richard Callahan to be the new U.S. Attorney for Missouri's Eastern District.

There had been speculation for some time that longtime judge and former Cole County prosecutor was on the shortlist for the position. But the White House made it official today in a press release announcing several other nominees.

"These nominees have displayed an unyielding dedication to serving the public good," said President Obama in a statement.  "They are some of the most diligent, judicious and well-respected legal minds in the country.  I am confident that, as U.S. Attorneys, they will be relentless in their pursuit of justice and serve the American people with distinction."

Callahan was often at the forefront of many significant cases dealing with state government. He presided over a marathon trial over the state's school funding formula. And he also heard challenges to various laws and ballot summary language.

If he's confirmed by the U.S. Senate, Gov. Jay Nixon will get to pick Callahan's successor.

Catherine Hanaway was the U.S. Attorney for the Eastern District of Missouri during President George W. Bush's second term. She resigned to take a position at a law firm set up by former Attorney General John Ashcroft.

Bringer a finalist for appeals court opening

State Rep. Rachel Bringer, D-Palmyra, was named as one of the three finalists for a vacancy on the Missouri Court of Appeals, Eastern District.

Before opening a solo law practice, Bringer was a assistant prosecutor in Marion County. She also worked as a law clerk for James Reinhard from 1995 to 1997. She completed her undergraduate and law school work at the University of Missouri.

Bringer has played a key role over the last few years in debating and discussing legislation for the Democratic caucus. Earlier this year, she had a pointed discussion with House Speaker Ron Richard, R-Joplin, about how her bills weren't going through the proper channels. She is also one of a number of House Democrats who opposes abortion rights.

Bringer is barred from running again for her state legislative seat. If Gov. Jay Nixon selects her for the vacancy, there could be a special election before the next election cycle. Bringer's seat has traditionally leaned Democratic.

The other two finalists are Gary M. Gaertner Jr., who serves as a St. Louis County Circuit Judge, and Thomas B. Weaver, a partner at the St. Louis-based Armstrong Teasdale.

Robertson: Missouri Plan supporters mulling lawsuit

I noted yesterday that Better Courts for Missouri refrained from criticizing Secretary of State Robin Carnahan's ballot summary language for a constitutional amendment scrapping a system of appointing some of the Show Me State's judges.

That's noteworthy because it could mean the group might refrain from filing a lawsuit against the summary language. Other groups pushing hot-button ballot items have drained away money and time challenging Carnahan's ballot summary language.

But that doesn't necessarily mean that there won't be a court fight over the proposal.

Chip Robertson, a Kansas City attorney who used serve on the Missouri Supreme Court, said today proponents of the current judicial selection system are taking a look whether there's a basis for a legal challenge. Robertson has been an outspoken supporter of the current system of selection some judges.

"If there is, we're going to do it," Robertson said. "And if there's not, we're going to prepare to defeat this [amendment]."

In the current system, a commission present three choices to the governor when there's a vacancy. The governor can either pick one of the finalist or let the commission make the selection. The person picked is immediately installed as a judge.

The proposed amendment would resemble the federal model. Governors would pick the nominees and the Missouri Senate would vote for approval.

There's a roughly ten day window where parties can sue after a measure has been certified for the ballot. If a challenge doesn't occur or is unsuccessful, proponents of throwing out the current plan will have to collect enough signatures to get on next year's ballot. The deadline is May 2010.

James Harris, the executive director of Better Courts for Missouri, said yesterday he wouldn't be surprised if a lawsuit was filed against the ballot item.

"I'm sure they would love to try and delay us and to try to use the courts to prevent or deny Missourians the right to vote on this," Harris said. "If the Missouri Plan is perfect and works well and is a national example, why do they work so hard to deny it?"

Asked to respond to the charge that filing a lawsuit against the ballot item would be a stalling maneuver, Robertson said opponents of the current system know that lawyers "can't file frivolous lawsuits."

"[Harris] doesn't understand that when you amend the constitution, it's the single most important document in the state," Robertson said. "The people who want to amend it and do so without the benefit of the normal legislative process need to be at least as careful as the people who are doing it in the normal legislative process."

"If there are fundamental flaws in the document that they've submitted, which in effect would make the thing difficult to interpret down the road or even implement, it leaves some questions out there," Robertson added.  

Getcha popcorn ready. This one is going to be a doozy.

These Are My Ballot Summary Words

Take a look at this statement from Better Courts for Missouri's James Harris about today's announcement that a constitutional amendment scrapping the Missouri Non-Partisan Court Plan was approved for circulation:

“For several years, lawmakers have attempted to update the process only
to have lobbyists from the Missouri Association of Trial Attorneys block
the effort.  It is a fact that MATA, its board of governors, and its
executive officers contributed over $3.1 million to politicians in the last
election cycle, 86% of which went to Democrats who by and large opposed
judicial selection reform.  MATA clearly wants to retain power over the
current process – if this isn’t a pay to play scheme, I don’t know
what is,” said James Harris.  He continued, “When a fringe legal group
like MATA spends more than $3.1 million to oppose reform, they clearly have
an overwhelming financial interest in maintaining the advantage they have
under the current process.  That should alarm all Missourians.
Missouri’s Supreme Court has agreed to hear oral arguments in Klotz v.
St. Anthony’s, a challenge to our state’s tort reform laws – just
another example of why reforms are needed more than ever.”

The most notable thing about this quote is about what it doesn't mention. And that's any negative criticism of Secretary of State Robin Carnahan.

Why is that important? Because groups pushing hot-button ballot items have in recent years sued Carnahan after getting a ballot summary that deemed to be unfavorable. That process usually drains time - and money - away from getting ballot signatures. Moreover, there's generally a difficult legal standard to overcome to reverse a ballot summary.

In this case, it may be that those who want to scrap the current court plan may avoid that legal fight. In a telephone interview, Harris - who is a prominent Republican political consultant - said his group was "pleased" with the ballot summary language.

"We're pleased with the ballot wording and the secretary of state's office," Harris said.

Harris did say that he would not be surprised if proponents of the current Missouri Plan filed a lawsuit over the ballot summary language. He said that signatures could still be gathered for the proposed amendment, but they would be worthless if a judge decides to alter any wording.

If Harris' group gathers enough signatures and the constitutional amendment is approved for the ballot, expect a titanic fight next fall. Legal groups such as the Missouri Bar Association are adamantly opposed to altering the current plan that selects some of the state's judges. But those who want to replace it with a model that looks more like the federal system could also be well-funded and well-organized.

Bond throws support behind Sotomayor

Sen. Kit Bond, R-Missouri, announced today that he would support Judge Sonia Sotomayor's nomination to the U.S. Supreme Court.

Bond threw his backing behind the federal judge today in a speech on the U.S. Senate floor.

"I do agree that Judge Sotomayor has proven herself a well qualified jurist," said Bond, according to prepared remarks posted on the senator's Web site. "I do agree that she has proven herself as a talented and accomplished student, federal prosecutor, corporate litigator, federal trial judge, and federal appeals court judge." 

 

"And so, I will not follow the hypocrisy of many of my Democratic colleagues who refused to support Justices Roberts and Alito because they disagreed with their judicial philosophy and now suggest that Republicans not do the same," Bond added. "I respect and agree with the legal reasoning of my colleagues who will vote no, but I will follow the direction of the past, and my hope for the future, with less polarization, less confrontation, less partisanship."

Sotomayor's nomination isn't really in doubt, especially since Democrats hold a huge majority in the U.S. Senate. But it has been interesting to see how Republican vote on President Barack Obama's first nominee to the U.S. Supreme Court.

You can read Bond's entire state here.

CBT Blog: Boone County officials urged veto of public defender bill

Gov. Jay Nixon vetoed legislation last week that would have allowed the Public Defender Commission to implement controls on its caseload. It's a move that pleased many prosecutors and judges, including some from Boone County.

That's because Boone County prosecutor Dan Knight and several local judges sent correspondence to Nixon urging him to veto Sen. Jack Goodman's legislation.

You can read more about this on the Columbia Business Times blog.

Nixon ventures to the Middle East

As other news outlets have noted, Gov. Jay Nixon is overseas this weekend visiting Missouri troops.

Nixon joined several other governors visiting troops in Kuwait and Iraq. Chad Livengood of the Springfield News-Leader said the trip is meant to show how state national guard battalions interact with other elements of the military.

Livengood pointed out that Nixon is in close contact with his staff and did not transfer power over to Lt. Gov. Peter Kinder. While that may sound unusual in abstract for the governor to retain power, it's in line with precedent.

I wrote an article for Missouri Lawyers Weekly in February detailing the past wrangling over the transfer of power between governor and lieutenant governor. During then-Gov. Joe Teasdale's administration, the Democratic chief executive was fearful to leave the state because of fears that Lt. Gov. Bill Phelps would assume power.

Such tussles went on for a long time until a state Supreme Court case in the 1990s. The court ruled that the lieutenant governors can only exercise power when they are "effectively" absent from the state. With the advent of Blackberries and cell phones, such a standard is difficult to achieve.

Since that time, the only time a transfer occurs is when the governor voluntarily relinquishes power. Gov. Matt Blunt did that a number of times during his four years as governor. It's also hypothetical that Nixon would transfer power to Kinder if the governor was undergoing a medical procedure that left him incapacitated.

It's not known when Nixon will return to the Show Me State

Round Up!

Apologies for the lack of updates today, as work became pretty heavy for a Monday.

Here's a few snippets from around the political world:

- Judge Sonia Sotomayor went before the Senate Judiciary Committee today. Sotomayor is President Barack Obama's first pick for the U.S. Supreme Court.

- Opponents of the Missouri Plan launched a ballot initiative today. Their aim is turn the current system into one resembling the federal model.

- Jo Mannies over at the St. Louis Beacon has more on an energy-related bill signed into law by Gov. Jay Nixon.

- Nixon vetoed legislation that, among other things, would have given the state Public Defender Commission more ability to control their caseload. The measure - seen as a priority for the overburdened public defender system - was vigorously opposed by some prosecutors and judges.

- Sen. Ryan McKenna, D-Jefferson County, regrets sponsoring legislation renaming a portion of I-70 after Mark McGuire. No word yet on whether Missouri legislators would be open to naming the stretch of road after White Sox catcher Ron Karkovice.