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Unlike the federal impeachment process, the power to try most impeachment cases lies with the Missouri Supreme Court rather than the Senate. For years, some Missouri lawmakers have sought to change that.
Senate Bill 9, spearheaded by Sen. Ed Emery, R-Lamar, proposes a power shift from the Supreme Court back to the state Senate.
During a committee hearing on Jan. 28, Emery, along with several other senators, expressed concern toward a lack of check and balance within the judiciary branch with impeachments against judges tried by one of their own.
"The reason I’m speaking specifically to judges right now is because 80 percent of impeachments in Missouri have been against judges," Emery said.
We decided to take a closer look at the percentage of impeachment cases. Is it true judges are impeached at a much higher rate than elected state officials in Missouri? If so, why?
Prior to 1945, all impeachments were launched by the House and tried by the Senate in Missouri, according to the Missouri Constitution written in 1875. Cases against the governor would be tried by the Senate and presided by the chief justice of the Supreme Court.
A constitutional amendment in 1924 proposed to transfer the authority to try most impeachment cases to the Supreme Court. It was ratified in the 1945 Missouri Constitution. Impeachments against the governor or a Supreme Court member are now tried by a special commission of "seven eminent jurists" chosen by the Senate.
Emery cited a list of 10 impeachment cases from 1825 to present, eight of which were against judges. The list includes all cases where the House voted to approve the articles of impeachment, regardless of the final outcome, Emery said.
Most cases on Emery’s list are accurate. However, there’s more to it.
According to House and Senate Journals kept by Missouri State Archives, the House passed articles of impeachment against a total of 11 judges or public officials in history. (Former Missouri Gov. Eric Greitens is not on the list, because he resigned before the House took any formal actions initiating an impeachment process.) They are:
• Circuit Judge Richard S. Thomas, 1825. Accused of bribery in order to arrange for his son a clerk position. Impeached and removed.
• Circuit Judge David Todd, 1828. Accused of misdemeanor in office. Tried by the Senate but outcome unknown.
• Circuit Judge William C. Carr, 1832. Accused of being "wholly unqualified for the judicial station." Acquitted.
• Circuit Judge Albert Jackson, 1859. Accused of oppression in office. Acquitted.
• Circuit Judge Aaron Van Wormer, 1865. Accused of misdemeanor in office.
• Circuit Judge Walter King, 1867. Accused on several accounts, including not finding any bills of indictment against Confederate soldiers and refusing to take the loyalty oath as required by the constitution. Impeached and removed.
• Circuit Judge Philander Lucas, 1872. Charged with "allowing indictments to create costs by granting mileage allowances to jurors." Impeached but impeachment articles withdrawn later.
• State Treasurer Larry Brunk, 1931. Impeached but acquitted.
• Circuit Judge Virgil A. Poelker, 1963. Resigned before trial.
• Circuit Judge John D. Hasler, 1968. Resigned before trial.
• Secretary of State Judith Moriarty, 1994. Impeached and removed.
Emery’s list was short of several cases and counted in Circuit Judges John Leland and James Moody as being impeached. There was no record of the House passing articles of impeachment against either of the judges, according to the journals.
His broader point was accurate: About 80 percent of the cases (9 out of 11) were against judges. However, most cases took place prior to when the Missouri Plan came in place, whereas two public officials and two judges were impeached in the 20th century.
At the national level, 19 federal officials were impeached throughout U.S. history, including 15 judges, two presidents, Andrew Johnson and Bill Clinton, and two other elected officials, according to the U.S. House of Representatives History, Art and Archives website.
Michael A. Wolff, former Chief Justice on the Missouri Supreme Court, said most impeachment cases in Missouri occurred in the 19th century because judges were appointed rather than elected up until the 1840s.
Dissatisfied by the number of impeachment cases against judges, lawmakers amended the Missouri Constitution in the 1840s to select judges by election, Wolff said.
An anti-corruption effort was put forward in 1940 by several counties in Missouri to establish a nonpartisan court plan, which later became known as the Missouri Plan, Wolff said. Judges in those counties were since selected by a nonpartisan commission.
The number of impeachments against judges since dropped, Wolff said. The Commission of Retirement, Removal and Discipline of Judges, which was established in 1972, now deals with removals of judges because of misdemeanors, he said.
St. Louis attorney James Layton, who worked in the state Attorney General’s office for 22 years, said the changes in Missouri’s judicial selection methods likely reduced the likelihood of impeachment against judges. Mechanisms such as the retention election would also remove judges of poor quality, Layton said.
Layton said giving the court power to try impeachment cases made the process "less political" and "more professional."
"They have a level of apolitical credibility that the Senate could never have," Layton said. "In Missouri, where we have a nonpartisan selection, I think it gives you a level of credibility and professionalism that would be hard to do in a political body."
Emery said "80 percent of impeachments in Missouri have been against judges."
Emery’s percentage calculation is accurate, but his overall statement does not reflect the relevant context of the current debate. The claim does not factor in shifts in Missouri’s judge selection methods prior to 1940 and miscounted some cases. It’s important to note that the number of impeachments against judges have dropped sharply since the Missouri Plan, and half of the impeachments in the 20th century have been against public officials.
We rate Emery’s statement Half True.
Ed. Emery, testimony at a Judiciary and Civil and Criminal Jurisprudence Committee hearing, Jan. 28, 2019.
Phone interview with Michael Wolff, dean emeritus of Saint Louis University School of Law and former Chief Justice of the Supreme Court of Missouri, Feb. 11, 2019.
Phone interview with James Layton, former Solicitor General at the Missouri Attorney General’s office and former adjunct professor of law at University of Missouri, Feb. 14, 2019.
Phone interview with Frank O. Bowman III, professor of law at University of Missouri, Feb. 8, 2019.
Frank O. Bowman III, "Impeachment in the states: Missouri governor edition Part I", Jan. 19, 2018.
U.S. House of Representatives History, Art and Archives, "List of Individuals Impeached by the House of Representatives"
Hathitrust Digital Library, Official Report of the Trial of the Hon. Albert Jackson, Judge of the Fifteenth Judicial Circuit, Before the Senate, Composing the High Court of Impeachment of the State of Missouri, 1859.
Missouri General Assembly, "Journal of the Senate of the State of Missouri At the First Session of the Fifth General Assembly", 1828.
Missouri General Assembly, "Journal of the Senate of the State of Missouri At the First Session of the Fifth General Assembly", 1832.
Missouri General Assembly, "Journal of the Senate of the State of Missouri At the First Session of the Twelfth General Assembly", 1842.
Missouri General Assembly, "Journal of the Senate of the State of Missouri At the Adjourned Session of the Twenty-third General Assembly", 1865.
Missouri General Assembly, "Journal of the Senate of the State of Missouri At the Regular Session of the Twenty-fourth General Assembly", 1867.
Missouri General Assembly, "Journal of the House of Representatives of the State of Missouri At the Called Session of the Twenty-sixth General Assembly", 1872.
Missouri General Assembly, "Journal of the House of Representatives of the State of Missouri At the First Session of the Twelfth General Assembly, Appendix and Index", 1842.
Missouri State Archives, "Missouri Constitutions, 1820-1945".
Joseph Fred Benson, "A Brief Legal History of Impeachment in Missouri", 2006.
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