Back in December I noted a pattern emerging in more and more states with merit/commission based systems: legislatures and governors want more names making their way to the governor’s desk. Today a Missouri Senate committee will be debating the latest proposal, SJR 30.
Under the current system when a vacancy occurs “the governor shall fill such vacancy by appointing one of three persons” from a list send by a judicial nominating commission the Appellate Judicial Commission or the various Circuit Judicial Commissions). SJR 30 would strike “three persons” but without specification of another number, thereby allowing for an unlimited number of nominees.
However, without a minimum could a commission send a single name? It has happened; in 2006 New Mexico’s merit/commission system resulted in a 1-name list given to that state’s governor to fill a District Court vacancy. When the governor asked for a second list with more names, none were provided. The Governor then sued the commission in the state supreme court and requested the commission meet again, which the supreme court ordered (State ex rel. Richardson v. Fifth Judicial Dist. Nominating Comm’n, 141 N.M. 657 (N.M. 2007)). When the commission again came up with a 1-name list the governor demanded the supreme court force the commission to send him every name they considered, a request the supreme court rejected. Ultimately the Governor refused to appoint anyone and the selection defaulted to the Chief Justice. A similar 1-name list scenario also occurred in 2012 as well.
SJR 30 marks a departure from prior efforts in Missouri which had focused on 4/8 or 5/10 plans under which an initial list would be made up of 4 or 5 names (vs. the current 3). The governor would be allowed to reject the list and ask for a new one, for a total of 8 or 10 nominees.
The 4/8 plan appeared in HJR 19 of 2009 (as introduced) and SJR 17 of 2011. The 5/10 provision appeared in HJR 49 of 2008, HJR 10 of 2009 (as amended), SJR 9 of 2009, HJR 58 of 2010, HJR 18 of 2011, and HJR 44 of 2012. A plan that would allow for only a single list of 5 names was considered as HJR 52 of 2008.