After becoming increasingly dissatisfied with the excessive role that politics and money played in elections and judicial decision-making, the people of the state of Missouri banded together and launched a ballot initiative, which resulted in the adoption of the Nonpartisan Court Plan of 1940, which is still being used today to select judges.
“At that time, political boss Tom Pendergast would buy votes and pack the Supreme Court with appointees of his political persuasion,” Lisa Van Amburg, former chief judge of the Missouri Court of Appeals, Eastern District, said. “The people were fed up with corrupt judicial elections so Missouri became the first state to use a merit system for selecting judges.”
Known around the world as the Missouri Plan, the stringent selection process is not only merit-based but also non-partisan and is designed to root out pay-to-play decision-making.
“In metropolitan areas where the donations to judicial campaigns can be very large, it’s fertile ground for pay-to-play in the courts,” Van Amburg told the St. Louis Record. “It’s a conflict for a judge to adhere to a professional code of ethics that requires an appearance of impartiality and then receive campaign donations, which are publicized.”
Missouri residents are currently being asked to nominate candidates for the Appellate Judicial Commission, which is accepting applications to fill a seat left vacant on the Missouri Court of Appeals Eastern District by Robert G. Dowd Jr. who served as a judge and chief judge after being appointed in 1994 by the late Gov. Mel Carnahan, a Democrat.
“There is a general standard of review for the Court of Appeals, which is not every error the trial judge makes is a reversible error,” said Van Amburg, professor of practice at the St. Louis University School of Law. “There are many, many nonreversible errors that don't make a difference in the outcome and we can't reverse trial judges for every mistake they make unless it would make a difference in the outcome. As a result, the standard of review is very deferential to trial judges.”
The decision-making of an appellate judge is limited to being fair and just within the rules of evidence or standard of review, Van Amburg added.
“There are rules that govern how appellate judges make decisions,” she said. “Intermediate appellate judges like this vacancy generally can’t go off the ranch.”
Applications for nominations from the general public will be accepted until 5 p.m. Friday, Nov. 20, and nominations can be submitted to the Commission by e-mail at EDJudgeVacancy@courts.mo.gov or by U.S. mail to Missouri Court of Appeals, Eastern District Judge Vacancy, P.O. Box 150, Jefferson City, MO 65102. The nomination form is available online.
Van Amburg, who served as a trial judge for the City of St. Louis Circuit Court for nine years, was subject to the merit selection process before becoming an appellate judge and chairing the selection commission for trial judges of which there are more than 400 statewide. She retired two years ago after serving 15 years. Governor Jay Nixon, a Democrat, appointed Van Amburg in 2012.
“What they accomplish with this rigorous process is a pool of people to send to the governor that they believe have the qualifications to be a judge,” she said. “It engenders public confidence in the courts that highly qualified applicants are more willing to apply for openings on the bench under this plan because they want a career based on their understanding of the law, not based on politics.”
While retired, Van Amburg co-chairs the Missouri Bar’s COVID-19 Taskforce, which provides recommendations to the Missouri Supreme Court for modifications necessary to have access to justice.
“While judges have their own belief systems, they are mandated by the Judicial Code of Ethics to give the appearance of impartiality,” Van Amburg said in an interview. “Short-tempered people with short fuses or who are insecure because of their lack of experience are the ones who typically don't have a very good judicial temperament.”
What’s at stake is the rule of law, she said.
“You hope there's a remedy in the courts but if the courts lose the respect and confidence of its citizens to rule impartially and according to the Constitution and statutes, then democracy is lost and disputes would get resolved in the streets, not the courts,” Van Amburg said.