Inside Politics - July 2006

Nevada Plan or Missouri Plan?

A Judicial Dilemma

by Michael Sullivan

A recent series of articles in the Los Angeles Times highlighting the problems with our state’s system of electing judges could cause major shockwaves throughout Nevada’s entire judicial system. The exposé took a close look at conflicts of interest and other problems associated with judges who have to raise money and campaign to keep their seats. While several judges were profiled, the stories made it clear that in Nevada, justice isn’t always blind and impartial.

What the stories did not do was adequately explain the pitfalls and difficulties in having to raise money in order to defend your seat from potentially wealthy challengers. The largest voter segment likely to be interested in the outcome of a judicial race are lawyers, who have to practice in front of those jurists on a daily basis.

Judicial candidates cannot be successful without accepting campaign funds from the legal community (apart from spending their own personal funds). For lawyers, this brings up an interesting conundrum: In order to earn some good faith, do you give money to a judge whom you know will be hearing your cases, or do you stay out altogether?

What if the candidate you support loses? Will you be at a disadvantage if you go to trial in front of the judge you didn’t support? In a perfect world, it shouldn’t be a problem. Human nature being what it is, however, we all want to help those who have given us support in the past. If a judge receives a $10,000 contribution, it’s hard to believe the contributor wouldn’t at least get some kind of preference, especially when up against someone who didn’t contribute to the judge’s campaign – or worse, worked against him or her.

What is the answer to all of this? The most-talked about alternative to an election is what is commonly referred to as the "modified Missouri Plan." In brief, it involves appointing judges, and then having them stand alone every four years for an up-or-down retention vote. If judges have done a good job, people vote "yes" to let them continue serving. Or, they could vote "no" to remove them.

In this scenario, the judges would run unopposed, with no need to accept contributions or run campaigns. The downside is that the power to choose the judge from the beginning would be taken away from the voters.

While no process is without politics, the theory is that an unbiased panel of experts would screen potential judicial candidates, then offer the top three recommendations to either an elected body (county commission) or the governor for appointment. This system is similar to the current process that occurs when there is a vacancy on the court.

A plan similar to this was offered to the voters in Nevada in 1988. It had, however, one major opponent – former Governor Mike O’Callaghan, then a columnist and executive editor at the Las Vegas Sun. O’Callaghan felt strongly that the people should not give up their right to elect and choose who would serve as their judges. He wrote numerous columns – and the voters listened.

In 1988, however, it didn’t cost more than $1 million to run for Supreme Court, and more than half of that to get a district court seat. With the impact of the Los Angeles Times article apt to be resounding for quite some time, it’s likely we will see the Nevada Legislature deal with this issue when it convenes in Carson City next year.

Michael Sullivan
Michael Sullivan is president of Knight Consulting, a Southern Nevada government affairs firm.