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(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rules are 2-3.1 Extrajudicial Activities in General and Comment 1; 2‑4.1 Political Conduct of Judges and Judicial Candidates in General, Subdivisions (A) & (E); 2-1.1 Compliance with the Law; 2-4.2 Campaign Conduct of Judges and Judicial Candidates, Subdivision (A)(3); 2-2.9 Ex Parte Communications, Subdivision (D); 2-2.10 Judicial Statements on Pending and Impending Cases, Subdivisions (A) and (C); and Preamble.)

COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE

OPINION 183

Issues:

To what extend may Supreme Court and other full time state judges and judicial staff become involved in activities supporting or opposing an initiative to change the nonpartisan selection of judges? Secondly, to the extend permissible, if a member of the Supreme Court were to actively engage in activities supporting or opposing such an initiative, would other members of the Court who have not engaged in any such activities be expected to recuse with respect to any case coming to the Court questioning the initiative? Third, would the Commission’s response as to the activities of Court staff differ if the staff acted on behalf of the Judicial Conference rather than the Court?

Relevant canons and law:

The section of Supreme Court Rule 2, the Code of Judicial Conduct, relevant to the issue presented are Canons 4B and 5A. Canon 4B, and the commentary thereto, provides:

Avocational Activities. A judge may speak, write, lecture, teach and participate in other extrajudicial activities concerning the law, the legal system, the administration of justice and nonlegal subjects to the requirements of this Rule 2.

Commentary

As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities.

Canon 5A states:

Political Conduct in General.

1. No judge appointed to or retrained in office in the manner prescribed in section 25(a)-(g) of article V of the state constitution shall directly or indirectly make any contribution to or hold any office in a political party or organization or take part in any political campaign.
2. Where it is necessary that a judge be nominated and elected as a candidate of a political party, an incumbent judge or candidate for election to judicial office may attend or speak on the judge or candidate’s own behalf at political gatherings and may make contributions to the campaign funds of the party of choice. However, neither the judge nor the candidate shall accept or retain a place on any party committee or act as party leader or solicit contributions to party funds.
3. A judge shall resign judicial office when the judge becomes a candidate either in a party primary or in a general election for a nonjudicial office, except that a judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention, if otherwise permitted by law to do so.
4. A judge shall not engage in any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.
5. Persons appointed as a circuit or associate circuit judge selected pursuant to section 25(a)-(g) of article V of the state constitution and their employees shall not directly or indirectly make any contribution to or hold an office in a political party or organization to take part in any political campaign.

Also implicated in any discussion of the issue is Article V, §25(f) of the Missouri Constitution, which is almost identical in language to Canon 5A(1). The constitutional provision is relevant because Canon 2A requires judges to “respect and comply with the law,” and Canon 3B(2) declares that judges must “be faithful to the law.” Disregarding or violating a constitutional prohibition would be misconduct under Canons 2A and 3B(2).

General considerations:

Heretofore, the Opinion 128, the Commission approved a judge’s participation in a media publicity campaign to recruit foster families as being consistent with Canon 4B, so long as the judge’s involvement did not involve the solicitation of funds.

Similarly, in Opinion 158, The Commission held that since such conduct was on behalf of measures to improve the law, the legal system, or the administration of justice, a judge could express views and testify before the legislature concerning proposed legislation to create a new judicial circuit without violating the prohibition in the predecessor of Canon 5A(4).

Finally, in Opinion 160, the Commission held that, pursuant to former Canon 7A(4), which was identical to present Canon 5A(4), a judge may publicly endorse or criticize the nonpartisan court plan since such conduct was on behalf of the improvement of the law, the legal system, or the administration of justice (although a judge should not publicly endorse a specific candidate).

Thus, the Commission has previously opined that judges generally may publicly state their support for, or opposition to, the non-partisan court plan because it relates to the method of selecting judges and therefore is an effort to improve the law, the legal system or the administration of justice. The Commission’s opinions make no distinction between expressing those views verbally or in writing.

This Commission’s counterparts in at least three other states have previously addressed issues similar to those here raised. The Colorado Supreme Court Judicial Ethics Advisory Board (CJEAB) recently did so in Opinion 2006-07 (2006). The CJEAB was asked whether judges could contribute to organizations supporting or opposing amendment 40 (proposing imposition of term limits on appellate judges) on the 2006 ballot and whether judges could speak to civic groups about it or take a position on judicial term limits in editorial pages. The CJEAB found that judges were permitted to engage in those activities. In its analysis, The Colorado Board interpreted “political organization” to be “uniformly defined to implicate partisan political activity.” C.J.E.A.B. Adv. Op. 2006-07 at 3. The opinion goes on to “conclude that groups whose only purpose is supporting or opposing Amendment 40 are not ‘political organizations’ within the meaning of Canon 7 because such groups do not promote candidates but are devoted only to a specific initiative related to change in the judicial system.” Id. The CJEAB also based its reasoning on the Canons’ “broad call to judges to speak out on important issues concerning the law, the legal system, and the administration of justice.” Id. at 2.

The Arizona Supreme Court Judicial Ethics Advisory Committee addressed similar issues in Advisory Opinion 96-08 (1996). The opinion relates to a ballot initiative addressing juvenile justice reform. Judges opposed to the measure wished to participate in the public debate of the merits of the proposed and pursue activities to defeat it. The Arizona Commission opined, interalia, that (a) judges could participate in activities for or against the initiative, but suggested that appearing in a television commercial might be inappropriate; (b) judges could appear at partisan political events and at community meetings or before community organizations to speak for or against the initiative; (c) judges may contribute to organizations supporting or opposing the initiative, but may not solicit funds for such organizations. Id. at 2-4.

Finally, the Kansas Judicial Ethics Advisory Panel opined on similar questions in Judicial Ethics Opinion JE-5 (1984). The opinion request pertained to permissible activities in connection with a ballot proposition relating to the method of selection of district judges. The opinion concluded that judges could: (a) speak for or against the proposition before civic groups; (b) support or oppose the proposition in response to media or voter inquiries; (c) serve on citizens’ committees supporting or opposing the proposition; (d) make monetary contributions to such committees; (e) allow their names to appear on advertisements regarding the proposition; and (f) solicit the support of citizens (not before the court) for the proposition.

These opinions, and others on related subjects[1] are indicative of the views taken on these issues around the country, and support the opinions heretofore rendered by this Commission.

This Commission’s prior opinions and those from foreign jurisdictions are all based on the fact that the Canon’s generally do not constrain a judge’s activities in furtherance of efforts to improve the law, the legal system, or the administration of justice. We note that by implication, this means that judges may also engage in activities against measures that can be viewed as impairing the law, the legal system or the administration of justice. Since we have recognized that efforts to change the nonpartisan court plan address methods for selecting judges and therefore are matters pertaining to improvement of the law, the legal system, or the administration of justice, a judge’s activities in support or opposition of those efforts is permitted unless forbidden elsewhere in the Canons or by law.

Missouri constitutional Article V, § 25(f) and Canon 5A(1):

As noted, supra, art. V, § 25(f) of the Missouri Constitution and Canon 5A(1) state that no judge selected under the nonpartisan court plan “shall directly or indirectly make any contribution to or hold any office in a political party or organization, or take part in any political campaign.” Canon 5A(5) extends the prohibition of the Canon (not the constitutional provision) to employees of circuit and associate circuit judges appointed pursuant to the nonpartisan court plan. Elective judges are not subject to these provisions.

Neither the Supreme Court nor this Commission has previously addressed the impact of these provisions to conduct that is otherwise permitted under the Canons. Obviously, any decision is dependent upon the meaning ascribed to Mo. Const. art. V, §25(f), in particular the phrases “political party or organization,” and “political campaign.” The Supreme Court of Missouri has not interpreted MO. Const. art. V, §25(f) of the Missouri Constitution. This Commission has no authority to construe provisions of the Missouri Constitution, other than to the extent necessary and required to carry out its duties to make recommendations to the Supreme Court to retire or discipline judges pursuant to Mo. Const., art., V,§ 24. Therefore, the views expressed herein, to the extent they involve constitutional interpretation, represent the Commission’s considered opinion as to how those provisions would be construed by the Court if it were called upon to do so.

We turn then to the words and meaning of Mo. Const. art. V, §25(f) and Canon 5A(1). “It is, of course, fundamental that where the language of a statute is plain and admits of but one meaning there is no room for construction.’ This rule applies with equal force to constitutional provisions.” Rathjen v. Reorganized School Dist. R-II of Shelby County, 284 S.W. 2d 516, 523 (Mo. banc 1955) (quoting Cummins v. Kansas City Public Service Co., 66 S.W. 2d 920, 931 (Mo banc 1933)). On the other hand, if there are some ambiguity in the language, provisions of the Missouri Constitution and Supreme Court Rules are interpreted applying essentially the same principles as those used for state statutes. Boone County Court v. State, 631 S.W. 2d 321, 324 (Mo. banc 1982); State ex rel. Vee-Jay Contracting Co. v. Neill, 89 S.W. 3d 470, 471-72 (Mo. banc 2002). First, “a court must undertake to ascribe to the words of a constitutional provision the meaning that the people understood them to have when the provision was adopted. The meaning conveyed to the voters is presumptively the ordinary and usual meaning given the words of the provision.” Farmer v. Kinder, 89 S.W. 3d 447, 452 (Mo. banc 2002) (citation omitted). Similarly, a court “cannot ascribe to [a constitutional provision] a meaning that is contrary to that clearly intended by the drafters.” Id. Accordingly, “due regard is given to the primary objectives of the provision in issue as viewed in harmony with all related provisions, considered as a whole.” Boone County Court, 631 S.W.2d at 324.

Mo. Const. art. V, §25(f) provides:

No judge of any court in this state, appointed to or retrained in office in the manner prescribed in sections 25(a)-(g), shall directly or indirectly make any contribution to or hold any office in a political party or organization, or take part in any political campaign.

As can be seen, the section prohibits judges from (a) contributing to or holding office in a political party, (b) contributing to or hold office in a political organization, and (c) taking part in any political campaign.

The first prohibition in the section, a judge cannot “contribute to or hold office in a political party,” is unambiguous. “Language is ambiguous if it is reasonably open to different constructions.” Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 814 (Mo. banc 1997). Contributing money, or holding office, both have an ordinary, usual and common meaning. They are susceptible to more than one meaning. Similarly, the phrase “political party” is commonly understood as parties, such as the Republican party and the Democratic party whose goal is to elect their candidates to office. They are involved in partisan political activity. To the extent the dictionary would need to be consulted, “political party” is defined as “[a]n organization of voters formed to influence the government’s conduct and policies by nominating and electing candidates to public office.” Black’s Law Dictionary 1197 (8^th ed. 2004). Another definition is a “group of persons organized for the purpose of directing the policies of a government especially by providing the principal political personnel and usually having as a basis for common action one or more factors (as principle, special interest, or tradition) upon which they have substantial agreement.” Webster Third New International Dictionary 1648, 1755 (1993). There is no ambiguity in this provision.

The same is true of the second prohibition, that a judge cannot contribute to or hold office in a political organization, because the Supreme Court of Missouri has defined the phrase “political organization.” When the Supreme Court of Missouri promulgated Supreme Court Rule 2, the Code of Judicial Conduct, it adopted the ABA Model Rules of Judicial Conduct with modifications.  Among those modifications were inclusion of Canon 5A(1), which copies Mo. Const. art. V § 25(f) virtually verbatim.  At the same time, the Supreme Court of Missouri defined the phrase “political organization” as used in Canon 5A(1) by Supreme Court Rule.  Rule 2.02 provides definitions and context to words and phrases used in the Canons.  Rule 2.02 (n) provides:  “’Political organization’ denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.  See Canon 5.”  “If a term is defined in [a Supreme Court Rule], we are bound to apply that definition.”  In re A.S.O., 75 S.W.3d 905, 910 (Mo. App. W.D. 2002).  Therefore, to the extent any ambiguity may have existed as to the meaning of “political organization,” the Supreme Court has already spoken to resolve the issue, and it is the understanding of the phrase that must be applied.  Accordingly, a judge cannot contribute to or hold office in a “political organization,” that is, one involved in partisan political activity to secure election of or appointment of candidates to public office.

While the first two prohibitions of Mo. Const. art. V §25(f) and Canon 5A(1) may be clear and unambiguous, the same cannot be said for the third.  This is so because the phrase “political campaign” is reasonably open to different constructions.  Is a political campaign only an election contest between or among candidates for office?  What about a school bond election, or a sewer bond issue, or a judicial retention election?  How about an annexation, creation of a fire protection or road district, or perhaps a rural water district?  And what of a single issue initiative petition to amend a provision of the Constitution?  Needless to say, there are any number of variety of ballot issues presented to the people for their vote, and the question is, does Mo. Const. art. V.§ 25(f) prohibit taking part in all of them.

There are few definitions of the phrase “political campaign.” It is not defined as Black’s Law Dictionary supra, Webster’s Third New International Dictionary supra, Random House Unabridged Dictionary (1993), A Dictionary of American English on Historical Principles (1942) or Word Menu (1992).  The definitions that do appear tend to focus on partisan political elections.  For example, the phrase is defined as “1.  A race between candidates for elective office; “I managed his campaign for governor’;  ‘he is raising money for a Senate run[;]’ 2. the campaign of a candidate to be elected [syn: campaigning].” “political campaign.”  Wordnet ® 3.0, Princeton University. 02 Sep. 2009 Dictionary.com http://dictionary.reference.com/browse/political campaign. Likewise, the single word “campaign,” when defined in a political or elective sense, frequently tends to contemplate partisan political activities on behalf of candidates.  One definition is “the completion by rival political candidates and organizations for public office.”  Random House Unabridged Dictionary 301 (1993).  Thus, it can be argued that “political campaign” as used in Mo. Const. art. V, § 25(f) refers to campaigns involving election of candidates.

But there are also definitional support for a broader view of the phrase “political campaign.”  The word “political” is generally defined as “of or relating to government, a government, or the conduct of governmental affairs; of or relating to matters of law; of, relating to, or concerned with the making as distinguished from the administration of governmental policy; of, relating to, or concerned with politics; of, relating to, or involved in party politics.” Webster’s Third New International Dictionary, supra, at 1755.

General definitions of the work “campaign” include “[a]ny organized effort to promote a cause or to secure some definite result with any group or persons,” Black’s Law Dictionary 205 (6^th ed. 1990) and “a connected series of determined operations or systematic efforts designed to bring about a particular result.” Webster’s Third New International Dictionary, supra, at 322.  The latter definition is followed by the contextual statement “a series of operations or efforts designed to influence the public to support a particular political candidate, ticket, or measure.” Id.

Applying these definitions, “political campaign” can be given a very board meaning, such as any organized effort designed to promote some cause or achieve some result relating to government or the conduct of government affairs.  Accordingly, the understanding of Mo. Const. art. V, § 25(f) varies depending on whether the phrase “political campaign” is given a narrow or broad construction.[2]

As noted previously, in determining their meaning, we “undertake to ascribe to the words of a constitutional provision the meaning that the people understood them to have when the provision was adopted.” Farmer, 89 S.W.3d at 452.  While that meaning is presumptively derived from the dictionary, where as here the dictionary offers alternative definitions, one narrower and another broader, and it simply isn’t clear from the context of the provision itself which of those two meanings was intended, it is necessary to give “due regard” to the “primary objectives of the provision in issue,” so as to ultimately “give effect to the intent of the voters who adopted the amendment,” Boone County Court, 631 S.W.2d at 324.  In ascertaining the primary objectives of § 25(f), we must view it in harmony with all related provisions, considered as a whole. Id. Among other things, it is proper to look to the proceedings and debates of the constitutional convention “in determining the purpose and meaning of constitutional provisions although such proceedings and debates do not have binding force … [t]heir persuasive effect depends upon the circumstances of each case.” Metal Form Corp. v. Leachman, 599 S.W.2d 922, 926 (Mo. banc 1980).  It is also appropriate to look to the history of the times, and the evil the voters sought to remedy. In re Estate of Hayden, 258 S.W.3d 505, 508 (Mo. App. E.D. 2008).

We turn then to the historical background of the Missouri nonpartisan court plan.  Missouri voters approved and adopted the nonpartisan court plan three times over the course of five years.  It was first proposed by initiative petition and adopted in the general election of 1940, with a margin of about 100,000 votes, roughly 55% to 45%.  Kay G. Collett, A History of the Selection and Tenure of Supreme Court Judges in Missouri, 59 Mo. Hist. Rev. 439, 446 (1965).  Shortly after that election, political leaders in the legislature proposed an amendment to repeal the plan.  It passed by a one vote margin and was submitted to the voters at the general election of 1942.  The repeal was rejected by the voters by an even larger margin, approximately 172,000 votes, a 65% to 35% difference.  Id.  The nonpartisan court plan was then approved by the voters a third time when they adopted the Missouri Constitution of l945.

The historical evidence relating to the initial adoption of the nonpartisan court plan by Missouri’s voters in 1940 demonstrates that the evil the citizens sought to eliminate was political influence on judges resulting from their participation in partisan political elections.  The literature detaining the problems existing prior to adoption of the plan is plentiful  See, e.g., Charles H. Blackmar, Missouri Nonpartisan Court Plan From 1942 to 2005, 72 Mo. L.Rev. 199 (2007); Kenneth H. Winn, IT ALL ADDS UP: Reform and the Erosion of Representative Government in Missouri 1900-2000, 1999-2000 Missouri Office Manual 28 (1999); William Braithwaite, Removal and Retirement of Judges in Missouri: A Field Study, 1968 Wash. U.L.Q. 378 (1968); Harry A. Hall, The Missouri Nonpartisan Court Plan: A Quarter Century Review, 33 U.M.K.C. Law Review 163 (1965); Kay G. Collett, A History of the Selection and Tenure of Supreme Court Judges in Missouri, 59 MO. Hist. Rev. 439 (1965); William W. Crowdus, Twenty Years of the Missouri Nonpartisan Court Plan, 18 J. of Mo. Bar 122 (1962); Laurance M. Hyde, The Missouri Plan for Selection and Tenure of Judges, 39 Journal of Criminal Law and Criminology 277 (1948); Henry A. Bundschu, The Missouri Non-Partisan Court Plan – Selection and Tenure of Judges, 16 U.M.K.C. Law Review 55 (1948); J. Peltason, The Missouri Plan for the Selection of Judges (1945).

Without going into extensive detail, the following are some of the problems that led to adoption of the Missouri nonpartisan court plan:

1. Judges were political candidates, and like all partisan candidates, had to raise money, contribute to party campaign funds, advertise, see votes for themselves and the party ticket, and secure the support of ward bosses.
2. Judges were influenced by political considerations.  Thus, litigants had to employ influential political attorneys to offset potential political influence by opposing counsel.
3. Precinct captains and other political leaders frequently would tell judges of their interest in supporting a particular lawyer or litigant in pending cases, and expect judges to do so.
4. Political reprisals were frequent for judges who did not adhere to the demands of political leaders.  Between 1920 and l940, there were just two occasions where a Supreme Court judge who served a full term was re-elected to another term.  Similarly, Kansas City judges once refused to pay $500 assessment for campaign purposes, and in the next legislative session political leaders persuaded the legislature to reduce the judge’s salary by $1,500 per year.
5. In St. Louis, a pharmacist was sponsored by political leaders and was elected circuit judge.[3]

See Hall, supra, at 164-65

While these problems developed over time, the straw that actually broke the camel’s back was Kansas City political Boss Tom Pendergast’s unprecedented and unseemly attempt to unseat incumbent Supreme Court Judge James M. Douglas in the l938 primary election.  Winn, supra, 1999-2000 Missouri Official Manual at 39.  Douglas has been appointed by Governor Stark to fill a vacancy on the Court in 1937. Id. Not long after, he cast the deciding vote in an insurance case in which Pendergast had a significant interest. Id. Partly because of that vote, and partly to rebuff what he perceived as Governor Stark’s challenge to his position as the pre-eminent political power broker in the state, Pendergast recruited James Billings to run against Douglas. Id.; Blackmar, supra, 72 Mo. L., Rev. at 201.  Stark supported Douglas, and Pendergast supported Billings, throughout the state.  Ultimately, Douglas won the election.  Winn, supra, 1999-2000 Missouri Office Manual at 39; Blackmar, supra, 72 Mo. L.Rev. at 201.

Tom Pendergast was convicted of tax evasion in 1939, and many of his “henchmen” were convicted on vote fraud charges relating to the 1936 election.  Blackmar, supra, 72 Mo. L. Rev. at 201.  One historian summarized the calamity of the Douglas-Billings election and the subsequent conviction as follows:

The powerful effort of a corrupt boss to control the nomination of a judge for the state’s highest court brought all of the discontent with partisan judicial election to the surface.  Critics charged that partisan election of judges was elective only in theory.  Local political machines, like Pendergast’s were really handpicking judges.  The whole process was degrading and off-putting to potential candidates. Even after election, judges were subjected to political pressures.  Their jobs hung not on the legal integrity of their decision, but on their partisan popularity.  Big cities, in particular, were too large for people to personally know judges, so it was even easier for machines to control decisions.  The desire to insulate the judiciary from the insidious side of politics soon developed into a proposed “Non-partisan Court Plan.”

Winn, supra, 1999-2000 Missouri Office Manual at 39-40.

The record of the constitutional convention leading up to the adoption of the 1945 Missouri Constitution further confirms that partisan political activity was the concern.  Although the nonpartisan court plan had a huge mandate from the voters based on its margins of victory in 1940 and 1942, a substantial number of delegates to the Missouri Constitutional Convention of 1943-44 “were zealous in their antagonism to the Plan.”  Collett, supra, 59 Mo. Hist. Rev. at 447.  Indeed, the judicial article was the most controversial issue that had to be resolved by the delegates.  Id.  Attempts to draft a judicial article calling for partisan election of judges were defeated.  Blackmar, supra, 72 Mo. L.Rev. at 203.  Nonetheless, during the debate regarding provisions of the nonpartisan court plan, a motion to strike § 6 (current constitutional Mo. Const. art. V §25(f) was made and seconded.  Debates of Missouri Constitutional Convention 3721 (1943-44).  Over two days, June 5 and 6, 1944,[4] delegates debated in the flowery oratory of the time the meaning and desirability of that section.  The entire thrust of the arguments by the opponents of § 6 was that judges should be involved in partisan politics just like all other politicians.  Thus, the opponents argued at one point that “that word, ‘Non-Partisan’ just doesn’t fit Democracy in this country to my way of thinking.” Id. At 3725, and at another point that “I can see no reason for saying that a judge should not hold political office, but I cannot see any reason at all for saying that a Judge shall not contribute to a political organization.”  Id. At 3742.  The delegates rejected the opponents’ arguments, defeated the motion to strike § 6, and approved the provision.  And, as noted supra, Missouri’s voters approved what is now Mo. Const. art. V. § 25(f) of the Constitution for a third time when they voted to adopt the Missouri Constitution of 1945.

Based on the historical record, it is really beyond dispute that the overriding purpose of the drafters of the nonpartisan court plan was to remove judges covered by the plan from partisan politics and partisan influence.  More importantly, this is what the voters were told and understood in 1940 and 1942, and it was clearly implied in 1945.  This is evident from how the plan was promoted and presented to the voters.

The draft of the proposed constitutional amendment constituting the nonpartisan court plan was completed in 1939.  Collett, supra, 59 Mo. Hist. Rev. at 444.  After the legislature refused to put the measure on the ballot, proponents took steps to place it on the ballot by initiative petition, ultimately submitting 74,075 signatures, more than twice the necessary number. Id. At 44-45.

The Missouri Institute of the Administration of Justice was organized to promote the constitutional amendment.  The Institute was an educational corporation with two-thirds of its members non-lawyers, and the remainder members of the Bar.  Hyde, supra, 39 Journal of Criminal Law and Criminology at 280.  In organizing the group, over 100 communities and chambers of commerce in the state were contacted and asked to recommend prominent non-lawyers in their community who might be interested in promoting the plan.  Id. At 445.  The object was to have representative membership and leadership throughout the state who would seek support in their respective communities.  Collett, supra, 59 Mo. Hist. Rev. at 445.  For example the Sedalia Democrat reported that Mrs. W.F. Keyser and Mrs. Henry C. Salveter was recruited to take the lead in supporting the plan and arranging for speakers at various clubs in and around Sedalia.  For Non-Partisan Court Plan, SEDALIA DEMOCRAT, October 24, 1940, at 1 c1.

A copious state-wide campaign was waged.  Funds were solicited, speakers’ bureaus were organized, and a four-page paper, “The M.I.A.J. News,” was broadcast throughout the state.  Missourians from Hannibal to Maryville to Neosho received and welcomed an education in one important phase of the administration of justice.

Collet, supra, 59 Mo. Hist. Rev. at 445.

In addition to this massive educational campaign to encourage voters to take partisan politics out of the process of selecting appellate judges and judges in the metropolitan areas, the voters were informed by newspaper editorial and paid advertising of the purpose and meaning of the nonpartisan court plan.

“It was never intended that justice be administered on the basis of political party policies; therefore, there is no reason for subjecting our judiciary to the fortunes of political campaigns, as is done under the present system.”  Advertisement by Missouri Institute for the Administration of Justice, Take Missouri’s Courts out of Politics, KANSAS CITY TIMES, Nov. 4, 1940, at 8.  The advertisement went to list objectives that would be accomplished by adoption of the plan.  Among those were: “It will take our courts out of politics and insure an independent judiciary…It will make it unnecessary for a judge to incur political obligations.” Id.

The Kansas City Times editorialized that the nonpartisan court plan was “intended to free the courts as far as possible from all form of political pressure.”  Editorial, Help the Courts, KANSAS CITY TIMES, Oct. 24, 1940, at E22.  The editorial goes on to state:

The present system is about an unsatisfactory for that purpose as any that could be devised.  It treats the administration of justice like every other elective office.  The candidate must campaign, like any political aspirant, first for his nomination and then for his election.  This necessity places a premium not on judicial qualifications but on vote-getting ability.

*     *     *

The disadvantage of the present arrangement, however, does not stop there. For the campaign system tends inevitably to place the successful candidate under obligation to persons responsible for his election, and a sense of obligation is not conducive to impartial decisions.  Many judges so elected, of course, honorably resist all attempts to influence them.  But the danger exists and by its very presence id destructive of complete confidence in the state courts.

*     *     *

This is one of the most important reforms ever submitted to the people of Missouri.  It should be adopted.

Id.  This editorial was reprinted and adopted as its own in the editorial section of the St. Louis Post-Dispatch on November 1, 1940.

To like effect, the Kansas City Star editorialized:

Even the believers in thoroughly partisan politics, we believe, regret the practice of dragging Missouri judges through the mire of partisan political campaigns.

There is no reason for a decent judge to be in politics, except that such is the way the people of Missouri require him to get and hold his office.  An honest judge cannot possibly be of any help to a political party.  He must be above party.

*     *     *

Certainly [the nonpartisan court plan] is far better than selection by political bosses, too often the method in Missouri.  It is worth a trial and the enthusiastic support of the voters in this election.

Editorial, For Free Judges, KANSAS CITY STAR, October 31, 1940, at D22.

Newspapers in smaller towns throughout Missouri also informed the voters that it was time to remove partisan politics and political influence from judicial selection.  See e.g., Editorial, The Constitutional Amendments, CAPE GIRARDEAU SOUTHEAST MISSOURIAN, November 2, 1940, at 4 c2 (“We are strongly for Nos. 3 and 4, which are designed to free Missouri courts from political influence ….”); Editorial, Non-Partisan Courts, THE COLUMBIA MISSOURIAN, October 19, 1940, at 4 c1 (‘Under [the nonpartisan court plan], decisions can be made by weight of evidence and justice and not by potential influence on re-election.  Subservience to political organizations and partisan judgeships will then be stricken from the unwritten records of the courts of this state); Editorial, Amendments 3 and 4, ST. JOSEPH NEWS-PRESS, October 15, 1940,a t 8 c1 (“Maintaining a free and independent judiciary is one of our most important bulwarks against a breakdown in our democratic system of government.  The purpose of the non-partisan court plan….is to establish in Missouri a system for the nomination, appointment and election of judges on the basis of merit, free from partisan politics.”)

After the nonpartisan court plan was adopted with a majority of almost 100,000 votes in the 1940 election, legislators immediately sought to repeal it, submitting what was known as the Lauf Amendment to the voters in 1942.  The editorials and articles leading up to that vote are telling.

Why do the city machines, courthouse ring and a certain type of lawyers want to repeal the Missouri nonpartisan court plan?

*     *     *

Why all the rush to vote through a repeal?  Ordinarily men with good motives pay attention to a mandate of the people.  Two years ago the people of Missouri said they wanted to take the higher courts and the judges of St. Louis and Kansas City out of politics.  They voted to do it by a majority of nearly 100,000.  The nonpartisan court plan is now part of the state constitution and deserves a trial.

The repeal scheme started in the 1941 Legislature soon after the nonpartisan court plan was adopted.  It started with the same crowd that was promoting a phony contest to keep an elected governor out of office.  It started with the same crowd of professional politicians that always represent the big city machines and courthouse ring, the H.P. (Pete) Lauf crowd.  By the margin of a single vote they got a Legislature to submit the repeal amendment to put the courts back in politics.  That is the Proposition 4 that comes up for a vote of the people next Tuesday.

Such a frantic rush to repeal smells of personal interest.  Political bosses and political lawyers are afraid of the nonpartisan court plan, now in the constitution.

The nonpartisan court plan frees the judges from the politicians.  They no longer have to run for office in the party primaries dominated by the bosses. Once in office they run for re-election on their records.  The judges don’t have to take orders from the bosses, political lawyers and courthouse politicians.  The nonpartisan court plan protects the type of judge who is willing to tell the bosses to go jump in the lake.

So the old political crowd, the Lauf crowd, is trying to rush through repeal before the nonpartisan court plan has had a chance to show what it will do.  They don’t know what it will do.  They don’t want the people of Missouri to know what it will do.

To block this repeal scheme, vote “no’ on Proposition 4.

Editorial, “No” on Proposition 4, KANSAS CITY TIMES, October 29, 1942, at D18.  This editorial was reprinted and concurred in on the editorial page of the Springfield Leader and Press in its October 30, 1942, edition.

Pendergast precinct workers have been instructed to support Proposition 4, the Lauf amendment on the constitutional amendment ballot.  Not at all surprising.  This is the amendment to throw the supreme court, court of appeals and the judges of the Kansas City and St. Louis courts back into politics.  It is the amendment to repeal the present nonpartisan court plan.

The Pendergast organization is consistent.  In the same election it has made a political issue out of two Jackson County circuit judges.  It is throwing organized support to Judge Marion Waltner, a last ditch Pendergast judge.  It is throwing its weight against Judge Allen C. Southern, an independent judge, the ideal of the nonpartisan court’s plan.

Political machines like the Pendergast organization want political judges. They don’t care whether a judge is good or bad so long as they feel he is one of the boys.  As far as possible under the political system, city machines and courthouse politicians have tried to keep their strings on the judges.  Their best chance is in the old political system of electing judges.  If a judge must go to the bosses for support in a primary he is most likely to recognize his master’s voice.

So the Pendergast machine, like other intensely political groups over the state, is supporting the Lauf amendment to repeal the nonpartisan court plan. Two years ago the plan was adopted by a majority of nearly 100,000.  The machine-courthouse ring was staggered.  It went to work on repeal.  Its crowd in the Legislature was busy with its phony contest to keep an elected governor out of office; but it took time off to write the repeal amendment.  Appropriately it bears the name H.P. (Pete) Lauf of the little Cole County machine.>

Now the Lauf amendment comes to vote of the people.  The Pendergast machine is making its bid to get back control of the judges.

In the meantime the nonpartisan court plan is the law of the state.  So the Pendergast machine is making the best of the situation.  It has turned on the political heat anyway.  It is making a political fight for Judge Waltner and a political fight against Judge Southern.  Just a hint of what it would like to do if it could get the judges back in party politics.

Editorial, Pendergast Crowd for No. 4, KANSAS CITY STAR, Oct. 29, 1942, at D20.

Other Missouri newspapers echoed the same message.  See e.g., Editorial, A Momentous Day at Hand, CAPE GIRARDEAU SOUTHEAST MISSOURIAN, November 2, 1942,a t 4 c2 (“The amendment cooked up by what is known as the Lauf political organization in Missouri to cancel the plan to take the high courts out of the control or influence deserves the same fate that finally befell Pendergastism.  Amendment No. 4 should be killed as deal as a mackerel”); Editorial, Three Good Amendments, One That Should Fail, THE COLUMBIA MISSOURIAN, October 29, 1942, at 4 c1 (“Amendment four seeks to repeal the non-partisan court plan adopted by a tremendous majority in the general election two years ago …Vote no.”); Editorial, Out to Get the Courts, ST. JOSEPH NEWS-PRESS, November 2, 1942, at 6 c1 (“Make no mistake about it, subversive interests are trying to put Missouri’s courts back into politics .…  If the people of Missouri vote ‘No’ on proposition No 4 tomorrow, as they should, they will be voting to give independent judges a chance to function, with no political strings attached”).

In light of the extensive and overwhelming persuasive historical record, it is clear that all words and phrases used in the nonpartisan court plan, including “political campaign” as used in Mo. Const. art. V,§ 25(f), were commonly understood by the voters in the context of partisan politics and partisan political activity.  That is to say that the common, ordinary and usual meaning of the phrase “political campaign” understood by the voters who adopted Mo. Const. art. V, §25(f) was the narrower definition, discussed supra, as being election contests between and among candidates for office.  Indeed the Supreme Court of Missouri declared as much when it stated: “We have the view that it was the intention of the people in adopting the nonpartisan court plan to prohibit judges selected thereunder from engaging in any partisan political activity.”  In re Corning, 538 S.W.2d 46, 53 (Mo banc 1976) (emphasis added).[5]

This conclusion is further confirmed when we dissect and try to harmonize the various provisions of Mo. Const. art. V,§ 25(f).  Disregarding the Code of Judicial Conduct and thinking only in terms of Mo. Const. art. V, § 25(f), the provisions against holding office in or contributing to a political party or organization would not preclude a nonpartisan judge from holding office in or contributing money to any number or variety of groups supporting or opposing ballot measures, such as school bonds, initiative petitions, etc. because those groups do not have the primary purpose of electing candidates to office.  They are not “political parties” or ‘political organizations,” as discussed, supra.  If the broad definition of “political campaign” is applied to Mo. Const. art. V § 25(f), its prohibition against taking part in any political campaign would prevent judges from holding office in or contributing to any of the groups just mentioned because to do so would be part of a political campaign.  If that were the intent, the first two prohibitions in Mo. Const. art. V, § 25(f) would be rendered meaningless, which, of course, is contrary to the rule that every word in a constitutional provision, statute, or rule must be given meaning.  State v. Radifer, 215 S.W..3d 725, 732 (Mo. App. W.D. 2006).  By applying the narrower definition of “political campaign,” all words in the section are given meaning, and the common modifier, “political,” as used with “party,” “organization,” and “campaign” is given a consistent and harmonious usage.[6]

Conclusion:

Consistent with the foregoing understanding of the meaning of Mo. Const. art. V § 25(f) and Canon 5a(1), and the Commission’s prior opinions that support or opposition to the nonpartisan court plan relates to the method of selecting judges and as such, is an issue pertaining to improvement of the law, the legal system, or the administration of justice, the Commission is of the opinion that both nonpartisan and elective judges may generally engage in the following activities in support of or in opposition to the proposed initiative amendment, subject to the advisories discussed infra:

1. Speak in favor or against the proposition before civic groups;
2. Support or oppose the proposition in response to media or voter inquires;
3. Serve on citizen’s committees[7] supporting or opposing the proposition;
4. Make a monetary contribution to a citizens’ committee supporting or opposing the proposition;
5. Allow their names to be used in advertisements that support or oppose the proposition.

Advisories:

While opining that a judge may comment in support or opposition of matters on behalf of the law, the legal system, or the administration of justice, the Commission also notes the Supreme Court Order of July 18, 2002 In Re: Enforcement of Rule 2.03, Canon 5B (1)(c).  That order required that: “Recusal, or other remedial action, may nonetheless be required of any judge in cases that involve an issue about which the judge has announced his or her views as otherwise may be appropriate under the Code of Judicial Conduct.”  A judge who actively engages in any of the permitted activities outlined above supporting or opposing the suggested initiative may be required to recuse on any case coming to the court relating to the initiative; however, in the opinion of the Commission unless the judge who is actively involved in these activities was in fact acting on behalf of the court en banc, that judge’s engagement is such activities would not require the recusal of other judges sitting on the same court who have not announced their views or become actively engaged in activities supporting or opposing the suggested initiative.

Likewise, all judges are expressly reminded of the admonitions of Canon 4A, which states:

Extrajudicial Activities in General.  A judge shall conduct all the judge’s extrajudicial activities so that they do not:

1. cast reasonable doubt on the judge’s capacity to act impartially as a judge;
2. interfere with the proper performance of judicial duties.

In particular, it is the Commission’s view that Canon 4(A)(2) is to be construed broadly, and therefore, it is the Commission’s opinion that any judge, elective or nonpartisan, contemplating engaging in any of the more public types of permitted conduct enumerated supra, such as making statements or permitting their name to be used in advertisements, should exercise caution.  Judges should always maintain the dignity appropriate to judicial office.  Doing so most certainly means, at a minimum, that a judge must not misrepresent facts directly or indirectly in any statement or advertisement.

It is also the opinion of the Commission that Canon 4C prohibits judges from personally soliciting funds on behalf of an organization supporting or opposing the initiative.  Canon 4C(3)(b) permits a judge to assist such an organization “in planning fund-raising,” but states that judges “shall not personally participate in the solicitation of funds or other fund raising activities ….”  Similarly, Canon 4C(3)(b)(iii) declares that a judge “shall not personally participate in membership solicitation if the solicitation might reasonable be perceived as coercive or, except as permitted in Canon 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism.”

In addition, while a judge may serve on a citizen’s committee as described herein, Canon 4C(3)(a) contains the following restrictions:

A judge shall not serve as an officer director, trustee or nonlegal advisor if it is likely that the organization:

(i) will be engaged in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

Canon 3C(2) specifies that a judge must require the judge’s staff and court officials subject to the judge’s direction and control to observe the “standards of fidelity and diligence that apply to the judge.”  In addition, Canon 5A(5) provides that employees of circuit and associate judges appointed pursuant to the nonpartisan court plan “shall not directly or indirectly make any contributions to or hold an office in a political party or organization or take part in any political campaign.”  As such, it is the opinion of the Commission that court personnel employed by nonpartisan judges are restricted in their activities in the same manner and to the same extent as the judge, judges or court for whom they work.[8] The Commission notes, however, that these restrictions can be modified by statue such as § 477.011, which requires that “[a]ll services required by the judicial conference of the State of Missouri … shall be furnished by employees of the supreme court.”

Given the possibility that an initiative to change the nonpartisan court plan may result in litigation, the Commission deems it appropriate to restate the proscriptions of Canon 3B(9):

A judge shall abstain from public comment about a pending or impending proceeding in any court and should require similar abstention on the part of court personnel subject to the judge’s direction and control.  This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the Court. (emphasis added).

The Commentary to Canon 3B(9) goes on to state:  “This requirement continues during any appellate process until final disposition.”

Finally, the Commission suggests to all judges who consider participating in activities related to the improvement of the law, the legal system or the administration of justice that they be mindful of some of the thoughts expressed in the Preamble to the Canons.

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us.  The role of the judiciary is central to American concept of justice and the rule of law.  Intrinsic to all sections of this Rule 2 are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.  The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

(Dated this 20th day of October 2009.)