Ohio: Senate approves compensation commission for judges & others; allows judicial salaries to be diminished only in cases of fiscal emergency

The Ohio Senate yesterday approved a plan (SJR 1) to create a Public Office Compensation Commission with the power to reduce judicial salaries mid-term in cases of fiscal emergency, a departure from a 2014 proposal which would have allowed them to be diminished for any reason.

First, some background.

The idea of a Compensation Commission first gained traction last fall with SJR 9 of 2014. Passed unanimously by the Senate in December 2014 and discussed here, the plan repealed the guarantee that judges’ salaries “shall not be diminished during their term of office” allowing for the Commission to reduce salaries as they deemed needed. This was in stark contrast with Arkansas’ constitutional amendment creating a Commission-system approved by voters the month prior that reiterated that judicial salaries could not be reduced during terms of office.

Under SJR 1 of 2015 the new Ohio Commission would be made up of 9 members

  • 2 appointed by Governor
  • 2 appointed by Senate President
  • 2 appointed by House Speaker
  • 1 appointed by Senate minority leader
  • 1 appointed by House minority leader
  • 1 appointed by Chief Justice

The commission would be allowed to recommend without specific justifications increases or decreases of 3% or an amount equal to the latest changes in the Consumer Price Index. Increases or decreases greater than 3% or the CPI would require specific justifications.

Like the 2014 bill, the 2015 bill does repeal the specific provision in the state’s constitution prohibiting decreases in judicial salaries mid-term and replaces it with the Commission system.

The judges of the supreme court, courts of appeals, courts of common pleas, and divisions thereof, and of all courts of record established by law, shall, at stated times, receive, for their services such compensation as may be provided by law, which shall not be diminished during their term of office for in Article II, Section 20a of this constitution.

However, unlike the 2014 bill, a 2015 committee amendment provided judicial salaries some degree of protection. Such salaries could only be reduced if two conditions are met

  1. The General Assembly passes a bill by a three-fifths vote of the members elected to each house that declares a state of fiscal emergency requiring an in-term decrease in compensation and decreases the compensation amount for every elected public office by the same percentage.
  2. The Governor signs the bill (i.e. no veto overrides)

This is similar to provisions in Alaska, Michigan, and other states which do allow for mid-term reduction of judicial salaries, but only where such reductions impact all officials. The constitution of Ohio’s neighbor Pennsylvania provides “Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.” (Pa. Const. Art. V, § 16)

SJR 1 has been assigned to the House Rules and Reference Committee.

South Carolina: legislators could elect themselves directly into judicial office under bill approved in committee yesterday

South Carolina is one of two states (Virginia is the other) where the legislature elects judges. Under existing law (2-19-70(A)) currently serving members of the legislature are prohibited from being considered for election and retired/former members are prohibited from consideration for 1 year after the end of their service. That restriction however could fall under a bill approved by the House Judiciary Committee yesterday.

HB 3979 as introduced on April 14 (text here) and co-sponsored by 91 out of 124 members of the House dealt with the question of the state’s Judicial Merit Selection Commission. Currently the Commission only sends the top 3 names to the legislature for a final vote. Under the bill as introduced all qualified candidates, not just the top 3, would be released by the Commission. This isn’t the first time such a proposal has come up; such proposals have been floated since at least HB 3414/SB 890 of 1999.

What made HB 3979 as amended interesting is what the amendment includes (text here): an exemption to the existing one-year-wait rule if the office being sought is “an at-large judicial office.” In South Carolina, Circuit Judges may be elected by the legislature to “at-large” positions allowing them to serve anywhere in the state. New provisions underlined, repealed provisions stricken.

(A) No A member of the General Assembly may not be elected to a judicial office while he is serving in the General Assembly nor shall that person be elected to a judicial office for a period of one year after he either:

(1) ceases to be a member of the General Assembly; or

(2) fails to file for election to the General Assembly in accordance with Section 7-11-15.

Provided, however, a member of the General Assembly is not ineligible to be elected to an at-large judicial office.

HB 3979 could now go directly to the House floor.

Tennessee Update: legislature adjourns, AG says with no law in place legislature has no power to confirm any judges

A followup to this point from earlier. Local news reports from this morning now indicate that the Senate rejected 4-1 with 27 abstentions the House amended version of a plan to provide for confirmation of appellate judges and then proceeded to adjourn. As such, and with no plan in place for confirmation, the state’s Attorney General reportedly indicated the governor is free to appoint anyone to an appellate court with no legislative involvement.

Tennessee: House rejects Senate appellate confirmation plan 92-1, but both chambers OK plan to create merit selection for trial court vacancies

Last year Tennessee voters amended their state constitution to create a quasi-federal system for appointment of appellate judges. The implementing legislation remains hotly contested for appellate confirmation, however, there is agreement on the creation of a merit selection system for interim vacancies on the state’s trial courts.

At the appellate confirmation level the question has been what the phrase “shall be confirmed by the Legislature” means. Can one chamber vote to confirm, the other refuse, and thus kill the nomination? Or would a split vote simply result in no action? Is it a joint vote of the entire legislature, or chamber by chamber?

The Senate version of SB 1 provides for a majority vote of all members of each chamber to which the house is entitled (not just those present) and that the votes would be tabulated separately. The bodies would, in effect, operate independently of each other.

The votes of each house shall be made and tabulated separately. The governor’s appointee shall be confirmed if both houses vote to confirm the appointee by a majority of all the members to which each house is entitled and shall be rejected if both houses vote to reject the appointee by a majority of all the members to which each house is entitled.

The Senate approved its version 30-1 on April 16.

The House version of SB 1 does not include separate tabulation and speaks of a joint vote of all members to which the general assembly is entitled.

The appointee shall be confirmed or rejected by joint vote of both houses of the general assembly. A majority of votes, to which the general assembly is entitled, cast in the affirmative shall confirm the appointee. A majority of votes, to which the general assembly is entitled, cast in the negative shall reject the appointee.

If nothing happens, or if the chambers split, the person becomes confirmed by default under a constitutional provision that requires rejection or confirmation within 60 days (in session appointments) or 60 days from the start of the next annual session (out of session appointments). House members argued that under the Senate plan, 17 Senators (a majority of the Senate) could vote to confirm, the rest of the Senate plus the entire House could vote to reject, and the person would eventually become confirmed by default.

The vote on the House version of SB 1 was 92-1. The Senate declined to accept SB 1 as amended by the House and a conference committee has been appointed.

One area where both the House and Senate do seem to have agreement on is the creation of a merit selection commission to fill interim vacancies in the state’s trial courts of record. The new Trial Court Vacancy Commission would be made up of 11 members: 5 chosen by the House Speaker, 5 by the Senate Speaker, and 1 jointly. At least 7 of the 11 members would be attorneys (3 House Speaker, 3 Senate Speaker, 1 joint). The Commission would go to work where a vacancy occurred or “is impending” in a court of record due to death, resignation, retirement, or otherwise. The governor would be required to appoint a person from a 3-name list provided by the Commission; the governor could request a second list to bring that total up to 6 names. The Commission’s votes would be by anonymous written ballots. The judge appointed would still have to face voters in the next election to fill the remainder of the unexpired term or for a complete term.

Nevada: binding judicial compensation commission clears Assembly 27-15; commission would also set salaries for other officials

I mentioned two weeks ago a constitutional amendment being debated in Nevada that was effectively a copy of a bill approved by Arkansas votes in November 2014 to create a binding compensation commission for judges and other state officials with no ability of the legislature to override the commission.

The Nevada bill (AJR 10) has now cleared the Nevada Assembly on a 27-15 vote, but with one key difference between it and its Arkansas counterpart. The commission will now include appointees named by the Senate and Assembly minority leaders.

Original As amended
Governor 2 2
Senate majority leader 2 1
Senate minority leader 0 1
Assembly majority leader 2 1
Assembly minority leader 0 1
Chief Justice 1 1

AJR 10 now goes to the Nevada Senate. If approved by a majority of that body it must be re-approved by the 2017/2018 legislature before appearing on the ballot.

New Mexico: Governor pocket vetoes bill approved by unanimous House & Senate to allow AOC Director to receive funds

New Mexico’s governor has killed via pocket veto a bill (SB 106) to allow the Director of the Administrative Office of the Courts to apply for and receive any public or private funds to carry out its programs, duties or services. The language is almost identical to that found in laws creating executive branch agencies, however most of those provide that such a reception is “with the governor’s approval.” SB 106 did not provide the governor a role in the AOC Director’s receiving funds.

Under New Mexico’s constitution the governor had until 20 days after the legislative session ended to take action (sign or veto) the bill, otherwise the bill died (pocket veto). That 20-day deadline passed on April 10 with no action on the part of the governor.

North Carolina: full House approves partisan judicial races for appellate courts; House Judiciary I committee wants retention elections instead

I mentioned last week that the North Carolina House Elections Committee had approved a bill (HB 8) to end nonpartisan elections for appellate judges and bring back the partisan elections that were in place prior to 2002. Now comes word that yesterday the North Carolina House went, in effect, in two different directions at once.

The full House approved HB 8 on a 69-48 vote that ran mostly along party lines (all 46 House Democrats plus 2 House Republicans voted against; all votes in favor came from Republicans).

At the same time the House Judiciary I Committee approved HB 222 that would keep nonpartisan elections for the initial terms followed by yes/no retention elections. Given the full House vote, however, proponents aren’t sure how such a move to retention elections will fare before the full House assuming it makes it to the floor.