Preserving Judicial Independence

• Citation: Vol. 48 No. 3 Pg. 20
• Year: 2025
• Pages: 20

Preserving Judicial Independence No. Vol. 48 No. 3 Pg. 20 Wyoming Bar Journal June, 2025

Marilyn S. Kite and Philip A. Nicholas

Defending Wyoming's Judicial Selection Plan

Judges are the protectors of our democracy.

They maintain the checks and balances between the three branches of government, restrict encroachment of the government on the rights reserved to the People, interpret laws and constitutions, resolve disputes between citizens, ensure due process for persons charged with crimes, oversee dissolutions of marriages, watch over the juvenile justice system, and protect our jury system.

Wyoming lawyers know how important the judiciary is in the daily lives of citizens—their clients. The Wyoming bar is a diverse community of attorneys practicing in all areas of the law. Collectively, they represent citizens who require all manner of legal and judicial services. The bar doesn't seek favoritism. Attorneys know they will represent clients on different sides of the same issues. The bar's objective is a selection system which consistently appoints fair judges with the judicial temperament to perform a difficult task in a professional manner with as little bias as possible. They want judges who will perform that responsibility without outside influence or political motivation.

Today we have five justices of the supreme court, 27 district court judges, 24 circuit court judges and one chancery court judge. Vacancies occur frequently and the process of recruiting and replacing qualified judges is increasingly complex. Maintaining a group of qualified judges is a challenge. This article examines how Wyoming's constitutional method of judicial selection, described as the modified "Missouri Plan," meets that challenge. We refer to it as the "Wyoming Plan" and we discuss how it stands up under the current political climate.^[1]

The founders of our nation shared a common belief that the United States Constitution would mean little without an independent judiciary to enforce our fundamental rights. The architecture of the federal judiciary is explained in Alexander Hamilton's commentary found in The Federalist Papers.^[2]To ensure judicial independence, our founders created a judicial selection system for the federal judiciary involving nominations by the president, advice and consent of the senate, and finally appointment by the president. Federal judges serve for life, insulating them from political pressure.

Historically, individual states tested and then rejected the federal appointment system. Fifetime appointments by politicians were criticized as non-transparent, political, and corrupt. In the 19^th Century, particularly the Jacksonian era,

a strong reform effort arose to make the judiciary more accountable to the people. States opted into electing judges with shorter terms of office. Wyoming's original constitution followed this populist movement, choosing to select judges through non-partisan elections.

This Wyoming Plan was designed to work in our state's environment. It was well thought out and approved by a majority of Wyoming voters.

Nationally, states became concerned about the partiality and qualification of judges chosen through elections. In 1940, Missouri voters responded to these concerns by adopting a new appointment system for selecting its judges. Their new "Missouri Plan" provided for a nonpartisan judicial nominating committee which selected three candidates from which the governor was required to select. Judges were appointed to defined terms of office. And the judges were required to stand for retention votes at the end of each term. Approximately 30 states have now adopted a version of the Missouri Plan.

Wyoming's experiment of choosing judges through election came under fire in the late 1960s and early 1970s. Increasingly, vacancies occurred during a judge's term of office. The governor filled these vacancies by appointment. The...