By Frank Bowman
An inquisitive reader, and former excellent student of mine, wrote in with a question about precisely who would try any impeachment charges against Governor Greitens approved by the Missouri House of Representatives. He correctly noted that Article VII, Section 2 of the Missouri constitution provides that, if the governor or a member of the state supreme court is impeached, the trial of the articles of impeachment is to held before a “special commission of seven eminent jurists to be elected by the senate.” But he wanted to know who counts as an “eminent jurist.”
Before I could respond, my industrious correspondent found and sent me the answer in a statute, RSMo 106.080, which states:
If the governor or a judge of the supreme court shall be impeached, the house of representatives shall immediately transmit such articles of impeachment to the senate who shall, without delay, proceed to the election of a special commission to try the cause, which commission shall be composed of seven eminent jurists, who at the time of their election are judges of the circuit or appellate courts of this state; provided, however, that judges of the supreme court shall not be eligible to serve on such special commission. The commission shall meet in the City of Jefferson within thirty days after their election on a day designated by the senate.
In short, by statute, only sitting circuit and appeals judges can be on the special commission.
ADDENDUM: After I first posted this analysis, my eminent friend Jim Layton, former Solicitor General of Missouri, pointed out that “eminent jurists” is a vague term that could be read to include retired judges, federal or state, and that it’s doubtful the legislature can, by statute, modify the meaning of a constitutional term. I take his point, but since the constitution requires that the “eminent jurists” be “elected by the Senate,” my bet is that they follow the rule they plainly thought they had the power to enact.