Rhode Island: bill requires Judicial Nominating Commission name at least one person of color for every judicial vacancy

Legislation introduced last week in the Rhode Island House would require the state’s Judicial Nominating Commission (JNC) sent at least one person of color for every judicial vacancy in the state.

HB 7455 amends the current law, which requires a list of 3-5 names, to add that the list “shall include a person of color.” The bill also requires that in making appointments to the JNC the governor and others “ensure that the membership of the commission reflects the racial, ethnic, and gender diversity of the state’s population.”

HB 7455 has been assigned to the House Judiciary Committee.

Michigan: bill on House 3rd reading calendar would tie judicial salary increases to state employees; judges haven’t seen increase in 13 years

A plan set for a vote in the Michigan House today would tie judicial salary increases to those given to state employees. As the most recent edition of the Survey of Judicial Salaries indicates, Michigan judges have already had to wait 13 years since their latest salary increase the longest wait in the nation.

Currently judicial salaries are set as a percentage of the salaries of the supreme court. For example a judge of the Court of Appeals makes 92% of a justice of the Supreme Court, a Circuit Judge makes 85%, etc.

Under SB 56 as amended by the House the salaries would equal a percentage of the salary of a Supreme Court justice as of December 31, 2015, plus an amount based on percentage pay increases, excluding lump-sum payments, paid to civil service nonexclusively represented employees classified as executives and administrators on or after January 1, 2016.

If approved by the House, the bill would have to go back to the Senate to concur with the House amendment.

Oklahoma: angry at recent state supreme court decisions, plan approved by House cmte would vacate all appellate courts, end merit/commission selection

Citing displeasure at recent state supreme court decisions on abortion drugs, removing a Ten Commandments monument from capitol grounds, and other rulings the Oklahoma House Elections and Ethics Committee approved on a 4-3 vote a plan to remove all sitting members of the state’s appellate courts and change the way they are selected. (h/t Gavel Grab)

Under HJR 1037 as amended (amended text here) “Any previously stated right to a judicial seat provided for in this Constitution is hereby extinguished.” All sitting appellate judges would have to face off in 2018 in nonpartisan elections.

Currently the state’s constitution provides for a merit/commission based system for the Justices of the Supreme Court and Judges of the Court of Criminal Appeals; by statute the same system applies to the Court of Civil Appeals.

The state’s constitution creates a 15-member Judicial Nominating Commission (JNC):

  • 6 non-attorney members appointed by district by the Governor
  • 6 attorney members elected by the active member of the bar in the district
  • 3 non-attorney members selected from the state at-large by the other 12 members of the JNC

When a vacancy occurs, the JNC sends three nominees to the governor who must select from the list. If the governor fails to do so within 60 days, the chief justice picks.

In lieu of this system the legislature is considering not only HJR 1037 but several other options:

Keep merit/commission, alter list of names

HJR 1042 (all appellate courts) Provides JNC to send a list of “all qualified” nominees to governor in rank order.

HJR 1061 (all appellate courts) Provides JNC to send a list of “all qualified” nominees to governor.

HJR 1065  (all appellate courts) Provides JNC to send a list of “all qualified” nominees to governor.

End merit/commission, replace with quasi-federal system

SJR 32 (all appellate courts) Allows governor to appoint any qualified person with Senate confirmation. Keeps JNC, but provides sole role is to rate governor’s nominee “qualified” or “not qualified” before submission to the Senate.

SJR 50 (all appellate courts) Allows governor to appoint any qualified person with Senate confirmation.

End merit/commission, replace with elections

HJR 1006 (Supreme Court only) Provides that 6-members of the court are to be elected by district, 3 statewide. Provides political parties are to nominate candidates but party labels are not to appear on the ballot.

HJR 1037 as amended (all appellate courts) Provides for nonpartisan elections on a statewide basis/ballot. Vacates all appellate seats and requires judges run in 2018.

Kansas: day before state supreme court ruling on K-12 funding, 18 senators introduce bill for impeachment of justices who “usurp the power of the legislative branch”

Yesterday, the day before an expected announcement by the Kansas Supreme Court in a K-12 funding case, 18 members of the Kansas Senate introduced a bill setting out the basis for the possible impeachment of the justices and district court judges selected under the state’s merit selection system (this would NOT apply to district court judges elected or the Court of Appeals).

Update: the specific wording (emphasis added)

in an impeachment proceeding against a justice of the supreme court or in a proceeding for discipline, suspension or removal for cause against an appointed judge of the district court, the grounds for such impeachment or for such discipline, suspension or removal for cause shall include, but not be limited to, any one or more of the following

SB 439 of 2016, which is almost identical to SB 297 of 2015 discussed here, would establish criteria for impeaching the justices and judges.

Currently, the state constitution (Art. II, Sec. 28) limits impeachment to “treason, bribery, or other high crimes and misdemeanors.” The listed causes for impeachment in SB 439 include the items in Art. II, Sec. 28 but also now include

  • attempting to usurp the power of the legislative or executive branch of government
  • attempting to subvert fundamental laws and introduce arbitrary power
  • commission of treason
  • commission of bribery
  • commission of other indictable criminal offenses
  • commission of a breach of the public trust
  • commission of a breach of judicial ethics
  • failure to perform adequately the duties of office
  • exhibiting wanton or reckless judicial conduct
  • exhibiting personal misbehavior or misconduct
  • failure to adequately supervise subordinate employees

Hawaii: vote on bill for election of judges put on hold until March 2, but Senate reconfirmation advances out of committee

The Hawaii Senate Judiciary and Labor committee met yesterday to take up several bills that would change the state’s merit/commission based system of appointment of judges. While a plan to move towards elections met with fierce opposition (per media reports) and a decision on that bill was delayed, other proposals did advance.

As a reminder Hawaii’s current system is made up of 2 elements:

  • Election for initial terms: Currently a list of nominees is sent by the Judicial Selection Commission to the governor (supreme court, intermediate appellate court, circuit court) or chief justice (district court) to select from. After a nominee is chosen he or she is subject to senate confirmation.
  • Additional terms: currently judges seeking to remain in office go back before the Judicial Selection Commission for evaluation and re-approval; neither the governor nor the chief justice not the senate is involved.

Approved

  • SB 2238 requires the judiciary, office of elections, and campaign spending commission to study appropriate methods of implementing a judicial election system in the state and submit a written report, including proposed legislation, to the legislature.
  • SB 2420 a constitutional amendment that retains merit selection of judges but provides judges seeking additional terms in office must be reapproved by the judicial selection commission and reconfirmed by the senate (currently only need be reapproved by judicial selection commission). Moreover the plan provides that if the senate fails to act within 90 days, the judge is returned to office by default.
  • SB 2498 a constitutional amendment that addresses the issue of Senate confirmation. The bill requires written notice of an appointment to the senate for advice and consent concurrent with the governor, judicial selection commission, or chief justice’s making of the appointment. The amendment clarifies that the senate’s thirty-day period to reject a judicial appointment begins on the senate’s receipt of written notice of the governor’s, chief justice’s, or judicial selection commission’s appointment.

Delayed until March 2

  • SB 2239 a constitutional amendment that ends merit selection of judges. Instead, justices and judges would be initially elected to serve six-year terms and be subject to the consent of the senate for subsequent judicial terms.

Plan to expand AZ Supreme Court from 5 to 7 members clears House Judiciary Committee

For the second year in a row (discussed here) a plan to expand the Arizona Supreme Court from 5 to 7 members has cleared the House Judiciary Committee. HB 2357 cleared on a 4-1 vote yesterday. The lead sponsor again cited to the state’s population as the basis for the need to increase the size of the court and bring diversity to the court. The bill now goes to the House Rules Committee.

Arizona: House committee approves 5-1 plan to ban state courts from enforcing federal court decisions unless Congress or the state legislature allows it

An Arizona plan to prohibit state courts from enforcing federal court decisions cleared the House Federalism and States’ Rights committee earlier today.

HB 2201 prohibits “commandeering” of state and local “personnel or financial resources to enforce, administer or cooperate with any action of the United States government that constitutes commandeering.” It then defines “action of the United States government” to include “a ruling issued by a court of the United States.” State courts would and could be allowed to enforce federal court rulings if a) the legislature enacted and the governor signed a law to allow it and/or b) the federal court decision is “affirmed by a vote of the Congress of the United States and signed into law.”

HB 2201 now goes to the House Rules Committee.

Colorado: plan would shift cost of court facilities from localities to state over next 20 years; 2015 version of bill killed in committee

A plan first introduced in 2015 and discussed here to shift the costs of state court facilities from local governments to the state has cleared its first 2016 legislative hurdle (media coverage here).

Current law (C.R.S. 13-3-108(1)) provides

The board of county commissioners in each county shall continue to have the responsibility of providing and maintaining adequate courtrooms and other court facilities including janitorial service, except as otherwise provided in this section.

SB 16 of 2016 as approved by the Senate Finance Committee last week alters this provision to provide the gradual transfer of the responsibility from the county to the state. The state would pay rent for the facilities starting at 5% of fair market value and increasing another 5% every year to 100% in FY 2036-2037.

This plan differs from the 2015 version (SB 15) in terms of length of time and starting percentage. SB 15 of 2015 started at 10% or 20% (depending on county) and increased 10% or 20% a year to reach 100% sometime in FY 2020-21 (20% counties) or FY 2026-27 (10% counties).

Finally, after full state takeover (i.e. 100% rental rate) for the properties, there would be the option for the state to simply buy the property outright.

After the state has completely assumed the responsibility of providing and maintaining adequate courtrooms and other court facilities in a county as specified in this section, the state may negotiate with the county to acquire the property from the county in lieu of continuing to pay rent.

SB 16 now goes to the Senate Appropriations Committee, which killed the 2015 version of the bill.

Virginia: proposal for e-filing system for District Courts killed in committee; modified bill passed House yesterday

A plan to require the Virginia District Courts to create an electronic filing system was recently killed in a House committee. HB 64 as introduced provided the state court administrator’s office (in Virginia called the Executive Secretary of the Supreme Court) “shall establish an electronic filing system for use in the general district courts.” The bill also provided judges or clerks of the general district courts were to transmit to the appellate court all documents required on appeal in electronic form.

The Executive Secretary of the Supreme Court shall establish an electronic filing system for use in the general district courts. The judge or clerk of a general district court shall provide to the appropriate clerk of any appellate court the original warrant or warrants or other notices or pleadings with the judgment endorsed thereon, together with all pleadings, exhibits, and other papers filed in the trial of the case, in electronic form. The clerk of the appellate court shall accept the official civil or criminal record in electronic form as otherwise required by law.

As amended in committee and ultimately passed by the House yesterday 99-0, any mention of a required electronic filing system was deleted. Discussion of electronic transmission of case documents to the appellate court was also heavily modified.

Upon agreement between the chief judge of the general district court and the clerk of the appellate court, the case papers shall be transmitted to the appellate court by an electronic method approved by the Executive Secretary of the Supreme Court, with the exception of any exhibit that cannot be electronically transmitted. In the jurisdictions where an agreement pursuant to this section is in effect for the electronic submission of case papers to the appellate court, the appellate court may transmit the case papers back to the general district court by electronic submission where the case is to be returned to the general district court under applicable law. Electronic case papers, whether originating in electronic form or converted to electronic form, shall constitute the official record of the case. Such electronic case papers shall also fulfill any statutory requirement requiring an original, original paper, paper, record, document, facsimile, memorandum, exhibit, certification, or transcript if such electronic case papers are in an electronic form approved by the Executive Secretary of the Supreme Court.

HB 64 now goes to the Senate.

Missouri Senate bill would require governor receive unlimited number of names from judicial nominating commissions; could a 1-name list appear as in New Mexico?

Back in December I noted a pattern emerging in more and more states with merit/commission based systems: legislatures and governors want more names making their way to the governor’s desk. Today a Missouri Senate committee will be debating the latest proposal, SJR 30.

Under the current system when a vacancy occurs “the governor shall fill such vacancy by appointing one of three persons” from a list send by a judicial nominating commission the Appellate Judicial Commission or the various Circuit Judicial Commissions). SJR 30 would strike “three persons” but without specification of another number, thereby allowing for an unlimited number of nominees.

However, without a minimum could a commission send a single name? It has happened; in 2006 New Mexico’s merit/commission system resulted in a 1-name list given to that state’s governor to fill a District Court vacancy. When the governor asked for a second list with more names, none were provided. The Governor then sued the commission in the state supreme court and requested the commission meet again, which the supreme court ordered (State ex rel. Richardson v. Fifth Judicial Dist. Nominating Comm’n, 141 N.M. 657 (N.M. 2007)). When the commission again came up with a 1-name list the governor demanded the supreme court force the commission to send him every name they considered, a request the supreme court rejected. Ultimately the Governor refused to appoint anyone and the selection defaulted to the Chief Justice. A similar 1-name list scenario also occurred in 2012 as well.

SJR 30 marks a departure from prior efforts in Missouri which had focused on 4/8 or 5/10 plans under which an initial list would be made up of 4 or 5 names (vs. the current 3). The governor would be allowed to reject the list and ask for a new one, for a total of 8 or 10 nominees.

The 4/8 plan appeared in HJR 19 of 2009 (as introduced) and SJR 17 of 2011. The 5/10 provision appeared in HJR 49 of 2008, HJR 10 of 2009 (as amended), SJR 9 of 2009, HJR 58 of 2010, HJR 18 of 2011, and HJR 44 of 2012. A plan that would allow for only a single list of 5 names was considered as HJR 52 of 2008.