Legislative Column for Feb. 10, 2014
Struggle for Power

 “In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature.” - Supreme Court, 506 (U.S. 244) 1992/3

Senate Joint Resolution 34 was recently heard in the Senate Judiciary and Civil and Criminal Jurisprudence Committee. SJR 34 is an attempt to restore to Missourians the integrity of two constitutional principles: separation of powers and checks-and-balances. Too few Missourians know of the damage done to those processes in 1945 when voters chose a new constitution. I was not around in 1945, but my guess is that the changes to both the separation principle and constitutional checks and balances were not emphasized to the people. Anecdotal evidence suggests that Missourians were not generally aware of the change then, nor are they accurately informed now.

Records from the constitutional convention prove that an experienced attorney at the constitutional convention (Mr. Phillips of St. Louis City who had practiced law in Missouri for 30 years) made an impassioned plea against the changes: “…It is the song of the siren that wants to lure us to destruction…”  It is noteworthy, given attorney Phillips’ pleading, that the only opposition to SJR 34 came from the incoming president of The Missouri Bar, who testified that restoring impeachment trials to the Senate “would violate checks and balances” – an alarming perspective given the unanimous opinion of the U.S. Supreme Court quoted above and the views of the founders expressed in Federalist No. 65.

What is there about the 1945 constitutional convention that could produce such a rift? When Missourians voted to approve the new constitution, buried deep within that document was an ominous change that took power and transparency away from the people and transferred it to a small body of unelected, elite jurists. The offensive language is found in Article VII, Sec. 2 which moved impeachment trials from the Missouri State Senate, an elected body of 34 individual senators representing every county in the state, to the Missouri Supreme Court, an unelected body of seven attorneys virtually unaccountable to the voters.

Prior to this change, Missouri had operated under four constitutions and prosecuted six impeachment proceedings utilizing the same impeachment model followed by the U.S. Constitution as well as 45 other states: Any impeachment started in the House of Representatives and was tried by the Senate, requiring a two thirds vote of all senators present for a conviction. As of 1945, Missouri invented a new procedure not dictated in any other state. The Missouri House must now submit its impeachment charges to the Supreme Court, one of the very branches the process was devised to check. It is not insignificant that of the 10 impeachments filed in Missouri’s history, eight have been of judges. Missouri’s current procedure stripped the impeachment process of its structural integrity; SJR 34 returns the trial to the Senate and integrity to the process.

Any well-informed political scientist recognizes impeachment as a political action, not criminal or civil. If impeached and convicted, the sole consequence is removal from office. It is like an emergency election designed to allow the people’s elected representatives to intervene and remove a bad actor without suffering him or her until the next election. An impeachment conviction does not result in a fine or jail time; impeachment is not a substitute for criminal or civil prosecution, and it precludes neither.

One reason The Missouri Bar struggles to comprehend SJR 34 may be because it is an “agency of the court.” Missouri has what is called an INTEGRATED BAR. That means any attorney practicing in Missouri must join The Missouri Bar. It’s kind of like a compulsory union for attorneys, mandated by government.  Because Missouri’s bar was forced to integrate by the Supreme Court rule rather than legislative action, every attorney is characterized as “an agency of the court.”

Not every effect of the integrated bar has been bad, but it does raise questions when deciding issues of impeachment since 80 percent of Missouri impeachments have been of members of the bar. No judges appeared to testify against SJR 34, but on numerous past occasions judges have testified against this same legislative language. I don’t think the question of conflict of interest has ever been raised relative to legislators who are members of the bar, but I have been asked about it. The heart of this matter is that regardless of any altruistic intent for an Integrated bar, it represents the backbone of a political power structure. You can read more about the good and the bad of an integrated bar in the link above. Whether there is anything ugly, you will have to decide for yourself.

I appreciate you reading this legislative report, and please don’t hesitate to contact my office at (573) 751-2108 if you have any questions. Thank you and God bless.