On November 6, Missouri voters will have the opportunity to vote on Constitutional Amendment 3. This Amendment will make some important changes in the Missouri Non-Partisan Court Plan which determines how the Missouri Supreme Court and appellate judges are chosen. Critics of the procedure for selecting these judges, myself included, have long argued that the current “Plan” allows trial lawyers to hand-pick these important judges, dramatically increasing the probability that the state’s jurisprudence will mirror the trial bar’s priorities. I would further argue that the trial bar’s priorities are not in the best interest of the citizens of our state. These plaintiffs lawyers are able to dominate the selection process of these judges currently because four out of seven of the Commissioners of the Appellate Judicial Commission are lawyers. This Commission selects the panel of candidates forwarded to the Governor. The Governor must select the judge from this panel. It simply does not make sense to me that the selection of this co-equal branch of government should be controlled by lawyers. The remaining three Commissioners are chosen by the Governor.
A current illustration of the faults of the current selection process is a decision of the Missouri Supreme Court handed down on July 31 where they overturned a key provision of a “tort reform” law. In a 4–3 decision the high court said a 2005 law violated the right to a jury trial by capping noneconomic damages in medical malpractice cases at $350,000. The specific provision of law struck down was contained in House Bill 393. That legislation was passed by the General Assembly and signed by the Governor in 2005. Placing a cap on noneconomic damages in medical malpractice claims was just one of the various reforms passed by General Assembly since 2003.
The motivation for House Bill 393 was the concern that soaring malpractice judgments in Missouri was making our state unfriendly to doctors and other health care providers. The argument in favor of this bill was that because of the steep increase of malpractice premiums, Missouri families, especially in the rural areas would likely experience a shortage of health care providers as doctors flee our State to practice in other states where the cost of insurance was lower. As a direct result of this Court decision, Missouri families will likely face higher health care costs and doctors across our state will be forced to pay higher malpractice insurance premiums because they will once again be confronted with multi-million dollar lawsuits. Long-term, this decision will result in a higher cost and might possibly result in a shortage of doctors.
This decision not only rejected this legislation but also reversed a well reasoned prior court decision made 20 years ago, Adams v. Children’s Mercy, which held that the General Assembly had the authority to put such a cap into effect. By judicial fiat, our Supreme Court has substituted their will over the decision of our popularly elected representatives and governor, and reversed a prior decision of the same Court. It is certainly unusual that our Supreme Court would reject a long standing ruling on the same subject to declare a law unconstitutional. This unprecedented ruling is strong evidence that trial lawyers, specifically the Missouri Association of Trial Attorneys, wield too much power in the selection our Supreme Court and appellate judges.
This bad court decision will hurt the average citizens in our state and all health care providers. After the passage of House Bill 393, the number of claims against physicians dropped about 24%, according to the Missouri Courts Statistical Report. A 2007 study by the University of Texas found that a cap on non-economic damages can reduce the number of lawsuits against physicians in a state by 10 to 13% and reduce the average damages awarded against physicians by 65 to 74%. This Supreme Court decision will reverse the benefits which resulted by passage of House Bill 393.
In November, Missouri voters will have the opportunity to rein in this undue influence of trial lawyers. Under Amendment 3, lawyers will no longer have a majority vote on the Appellate Judicial Commission. This Amendment would go a long way toward restoring accountability in the judicial selection process. If approved by voters, ordinary citizens will have influence in the selection of these important judges when we vote for Governor each four years. I urge your support of Constitutional Amendment 3.
Biography
Representative Stanley Cox (R) Sedalia, handled the bill that put Amendment 3 on the ballot and sits on the Missouri House of Representatives Special Standing Committee on Judicial Reform.
Contact: Stanley.Cox@house.mo.gov
