Election 2016: PA voters rejected increase in mandatory judicial retirement age, but votes won’t count and re-vote will take place in November

Yesterday voters in Pennsylvania went to the polls to vote on two items related to courts.

Amendment 1: a plan to increase the mandatory judicial retirement age for judges from end-of-year-turns-70 to end-of-year-turns-75 was rejected 50.98% to 49.02%. However, the vote totals will not count because the legislature at effectively the last minute directed the actual vote to take place in November, using different ballot wording.

The PA Secretary of State’s website includes this disclaimer for the election results

On April 20, 2016, the Commonwealth Court of Pennsylvania ruled that House Resolution 783, postponing the vote on Ballot Question 1, a proposed constitutional amendment relating to the mandatory judicial retirement age, will go into effect, and that the question should not appear on the Primary Election ballot. Because this ruling came so close to the April 26, 2016, Primary Election, it was not possible to remove it from the ballot. Any votes cast on Ballot Question 1 will not be counted/certified by the Secretary of the Commonwealth.

Amendment 2: an effort to remove any and all references to the Philadelphia Traffic Court from the state’s constitution. The court itself had effectively ceased to exist several years ago after scandal resulted in several judges of that court being convicted on federal charges. The enabling legislation was repealed in 2013; this amendment simply removed the references to the court in the state’s constitution.


Oklahoma: Senate approves 33-13 major changes to merit/commission system; JNC would have no role in screening prior to nomination

The Oklahoma Senate yesterday approved its version of HB 3162, a constitutional amendment that would restructure the way appellate judges are chosen in the state (media report here).

HB 3162 as approved by the full Senate would effectively replace the current Judicial Nominating Commission (JNC) system with a new one that would serve in an advisory capacity only. Key provisions would include

  • Governors would be free to appoint anyone to an appellate court. Currently the JNC submits a list of names for the governor to select from.
  • The JNC’s new role would be to review the governor’s appointee as either “qualified” or “not qualified” within 90 days after appointment.
  • The governor’s appointee would be subject to Senate confirmation. There is a default provision: if the Senate fails to confirm the nominee within a set number of days, confirmation would occur by default (“Inaction  on an appointee by the Senate within the specified time periods  shall constitute confirmation of such appointee.”)

The Senate’s version differs markedly from version the House adopted last month which revised the JNC’s membership and provided for a joint House-Senate committee to confirm individuals.

HB 3162 as amended by the Senate now goes back to the House.


Oklahoma: effort to make Judicial Nominating Commission subject to Open Meeting Act rejected 41-44; 16 members not present, vote may be retaken

A plan to place the Oklahoma Judicial Nominating Commission (JNC) under the state’s Open Meeting Act was rejected by the House 44-41 this afternoon. The bill (SB 770) previously approved 40-4 in the Senate would have expanded the definition of “public body” subject to the Act to include the JNC. 16 members of the House had excused absences from the vote and a notice to reconsider the vote has already been filed.

Arizona: Senate defeats (twice) plan to prohibit state courts from enforcing federal court rulings; tie vote results in failed bill

A bill that would prohibit Arizona state courts and other state entities from enforcing federal “actions”, including federal court rulings, as “commandeering” state officials failed by the narrowest of margins in the Senate twice in the last two weeks, this after having easily cleared the House.

Arizona HB 2201, was rejected by the Senate on a 14-15 vote on April 5, with one senator absent. A motion to reconsider was filed and the vote retaken on April 13, this time resulting in a 15-15 tie. Because Arizona does not have a Lt. Governor, there was no way to break the tie and the bill failed.

PA: Legislature may (or may not) have just successfully pulled increase to mandatory judicial retirement age off April ballot; lawsuit “imminent”

The ongoing saga of whether an increase in Pennsylvania’s mandatory judicial retirement age will appear on this April’s ballot moves on with the legislature trying to delay the vote and a lawsuit “imminent” to keep it for this month’s election.

To recap:

  1. The legislature passed twice (2013 and 2015) a constitutional amendment to increase the state’s mandatory judicial retirement age from end-of-year-turns-70 to end-of-year-turns-75. It was to go on the next available statewide ballot, the state’s primaries this month.
  2. The legislature then balked at the proposed ballot language, calling it confusing, and filed a lawsuit.
  3. After the state’s supreme court declined to rewrite the wording, the legislature adopted a resolution (HR 783) to push the election off until November and write the exact ballot language they wanted used.

News reports now indicate however that the legislature’s attempt to pull the ballot item may be too late and that a lawsuit challenging the move to November is “imminent”. Senate Democrats claim the resolution cannot force a change in the date of the election. The Secretary of State has directed counties to keep the item on the ballot for now.

Pennsylvania: House votes to pull measure to increase mandatory judicial retirement age off primary ballot; Senate to consider this week

Last week the Pennsylvania House approved a plan to pull a constitutional amendment to increase the state’s mandatory judicial retirement age off the primary ballot set to occur in a little over 2 weeks. HR 783 directs the Secretary of State to pull the plan that would extend judge’s retirement age from end-of-year-turn-70 to end-of-year-turn-75 and instead put it on the November general election ballot. The Senate has indicated it will decide this week whether to approve pulling the item (either in the form on HR 783 or its own SR 321).

At issue is ballot language the legislature says is confusing; the Senate filed suit to have the wording redone. With ballots already printed in 30-4o counties it is unclear what the impact of such resolution(s) might have.

Pennsylvania: legislature may pull measure to increase mandatory judicial retirement age off primary ballot; ballot language & lack of access at issue

I mentioned last year that Pennsylvania voters will get the chance in 2016 to decide whether or not to let judges stay on the bench until the end of the year they reach 75 (currently they must retire at the end of the year they hit 70). The vote was to take place this April 26 at the primary/spring elections, however a lawsuit by Senate Republicans challenged the ballot language. The litigation  appeared to push the time table for the election past April. Now two resolutions filed yesterday would make the delay official.

HR 783 and SR 321 both direct the Secretary of State to pull Proposed Constitutional Amendment 1 off the ballot for two reasons: 1) the ballot language and 2) the fact that, since the election would take place at the primaries, those not registered with a party would be unable to vote on the subject.

WHEREAS, More than 1 million Pennsylvania registered voters are not registered and enrolled as members of one of the two major political parties and therefore are not entitled to vote in the primary election of either of those political parties; and

Both resolutions solve any ballot language problem by providing the exact ballot language the legislature wants used

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?

They also solve the no-access problem associated with primary elections by pushing it to the general election.

HR 783 is in the House Judiciary Committee, while SR 321 has been filed in the Senate Rules Committee.

Arizona: Senate set to vote on plan to prohibit state courts from enforcing federal court rulings unless rulings approved by Congress; House already approved plan

Last Thursday the Arizona Senate Committee of the Whole advanced its version of HB 2201, a bill that would prohibit state courts and other state entities from enforcing federal “actions”, including federal court rulings, as “commandeering” state officials.

As previously noted, the “anti-commandeering” law would allow the legislature to order state and local officials not to “enforce, administer, or cooperate with any action of the United States government that constitutes commandeering.” The definition of “action” includes “A ruling issued by a court of the United States.” Commandeering is defined as an action that either

(a) Is not in pursuance of the Constitution of the United States and has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.

(b)  Exceeds the powers of the Congress of the United States enumerated in the Constitution of the United States

Maryland: Senate approves plan to increase mandatory judicial retirement age from 70 to 73, but sitting judges would need governor’s permission to get increase

A plan to increase Maryland’s mandatory judicial retirement age cleared the Maryland Senate 40-4 last week. SB 502 would, subject to voter approval, amend the state’s constitution to increase the age from 70 to 73 for new judges. As was the case in Virginia (noted here) there were efforts made to exempt currently sitting judges from the increase. As a result, SB 502 creates a two-tiered system for the increase

  1. All judges “first elected or appointed to office” after adoption of the amendment would get the increase to 73.
  2. Sitting judges in office at the time the amendment was adopted would be allowed the additional 3 years only if the governor permits it. (The judge “applies for, and is granted, an extension by the Governor to serve until the judge completes the judge’s term or attains the age of seventy-three years, whichever occurs first.”)

The bill is now pending in the House Rules and Executive Nominations Committee, however the legislature is set to adjourn on April 11 making it unclear if SB 502 will appear on the 2016 ballot.

Rhode Island: House bill guarantees certain trial court judgeships to “persons of color”

I mentioned last month a plan in the Rhode Island House that would require the state’s Judicial Nominating Commission (JNC) name at least one person of color for every judicial vacancy. While that bill stalled out in committee it appears a new set of bills have now been filed.

HB 8018 provides any judicial seat currently filled by a “person of color” can only be filled in the future by another “person of color.”

Notwithstanding any provisions of this chapter to the contrary, whenever a judge from the superior court, family court, district court, or workers’ compensation court who is a person of color leaves the bench, for whatever reason, their replacement must be a person of color, so as not to diminish the number of judges of color in that court.

In addition HB 8019 would guarantee at least one-third of the seats on the 9 member Judicial Nominating Commission go to persons of color. Moreover, the JNC would be required to “aggressively” seek out persons of color for judicial vacancies.

Effective January 1, 2017, the commission shall be composed of at least three (3) members who are persons of color . When the governor is making an appointment to the commission, that appointment shall adhere to the legislative mandate that the commission be composed of at least three (3) members who are persons of color…

The commission shall actively and aggressively solicit persons of color to apply for all judicial appointments. It shall keep records of all persons of color who apply for a judicial appointment, its success rate of having those names submitted to the governor for judicial appointment, and its recruiting methods.

Both bills have been filed in the House Judiciary Committee.