My overview of several of the items on the ballot as well as the live election night coverage I’ll be hosting at www.ncsc.org/elections.
Alabama’s Amendment 1 is just the latest in a series of efforts, detailed on this blog over the last 5 years, to ban state courts from referencing international/foreign law in general or sharia law in particular. If approved by voters, Alabama would join ten other states with similar bans. Alabama’s, however, stands out as going even further than the others, prohibiting Alabama state courts from giving full faith and credit to the decisions of courts in other states in certain cases.
Before enforcing a judgment or order of a court of a foreign country, a court must review the judgment or order to ensure that it complies with the rule of comity. A judgment or order of a court of a foreign country is not entitled to comity if the parties were not given adequate notice and the opportunity to be heard, the foreign court did not have jurisdiction, or the judgment or order of the foreign court offends the public policy of this state. As used in this subsection, a “ foreign court ” or “ court of a foreign country ” includes any court or tribunal that has jurisdiction under the laws of that nation over the subject of matters governed by chapter 61 or chapter 88.
Alabama SB 4 (now on ballot as Amendment 1 of 2014)
(8) Article IV, Section 1, of the United States Constitution provides that full faith and credit shall be given by each state to the public acts, records, and judicial proceedings of other states. Provided, however, when any such public acts, records, and judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama is not and shall not be required to give full faith and credit thereto.
(c) A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.
Missouri SB 267 vetoed by governor
A court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of State law shall not apply a foreign law in any legal proceeding involving, or recognize a foreign judgment involving, a claim for absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution if doing so would violate a fundamental constitutional right of one or more natural persons who are parties to the proceeding…The provisions in this act shall apply only to proceedings or matters under Chapter 50 and Chapter 50A of the General Statutes.
Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on foreign law that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States and Oklahoma Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the Constitution of this state.
No specialty or therapeutic court established by court rule shall enforce a foreign law, if doing so would violate a right guaranteed by the Constitution of this state or of the United States.
Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.
No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.
A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States or conflict with the laws of the United States or of this state.
The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.
Notwithstanding any law to the contrary, and subject to provisions of superseding federal treaties, any otherwise enforceable contract which incorporates any substantive or procedural law, legal code or legal system of another state, foreign jurisdiction or foreign country that would violate rights and privileges granted under the United States or Tennessee Constitution is declared to be against public policy of this state and is unenforceable in this state.
The establishment of a mandatory age of 70 is consistent with the practice in the other states. All told, some 32 states have a general mandatory judicial retirement age. At the appellate level, it is fairly straightforward: the majority of states (21) set seventy as the age, however some states allow a judge to serve out the term or the year in which they reach the threshold age.
At the trial court level, things become somewhat murkier. For example in at least 8 states with mandatory retirement ages for higher courts (appellate, general jurisdiction) some or all of the state’s lower court judges are exempt. For example, in South Carolina appellate and trial judges generally must retire at age 72, but Probate and Municipal Judges have no specific mandatory retirement age. Georgia, on the other hand, has the opposite situation: there is no mandatory retirement age for their top courts but some Municipal Courts have imposed mandatory retirement ages on their judges.
The table below gives the general overview of retirement ages, detailed state by state analysis based on court type and other particulars below the fold.
|Age||# of States||States|
|70||21||Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Dakota, Virginia, Wyoming|
|72||4||Colorado, Iowa, North Carolina, South Carolina|
|75||5||Indiana, Kansas, Oregon, Utah, Washington|
|None||18||California, Delaware, Georgia, Idaho, Illinois*, Kentucky, Maine, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Rhode Island, Tennessee, West Virginia, Wisconsin|
*Illinois statute struck down as unconstitutional but never formally repealed
Where many states can lay claim to centuries of imposing mandatory judicial retirement ages through their state constitutions (such as New York which I detailed here), Louisiana was relatively late in adopting the practice, only putting a constitutional provision into effect starting in 1921 and even then making it apply only to the Supreme Court. It wasn’t until 1974 that mandatory judicial retirement became generally applicable to all judges in the state.
Constitution of 1812: Serve for life, no age limit, removed from office for “any reasonable cause” by 3/4 of legislature
At the time of admission into the Union, Louisiana’s constitution read very much like the U.S. Constitution, including and in particular the provision for the appointment of judges for life in Art. IV, Sec. 5. However, judges could be removed for “any reasonable cause” other than an impeachable offense (such as senility and infirmity) by a 3/4ths majority of the legislature.
The judges both of the supreme and inferior courts shall hold their offices during good behaviour; but for any reasonable cause which shall not be sufficient ground for impeachment, the Governor shall remove any of them, on the address of three fourths of each house of the general assembly: Provided however, That the cause or causes for which such removal may be required, shall be stated at length in the address, and inserted on the journal of each house.
Constitutions of 1845, 1852, 1861: end of life terms, no age limit, removed from office for “any reasonable cause” by 3/4 of legislature
The 1845 constitution rewrote the provisions related to life terms for judges (Supreme Court judges, for example, would now have 8 year terms while District Court judges would serve 6 years). No age limits were imposed, but provisions for removal “for any reasonable cause” remained in place (Art. IV, Sec. 73)
The judges of all courts shall be liable to impeachment; but for any reasonable cause, which shall not be sufficient ground for impeachment, the governor shall remove any of them on the address of three-fourths of the members present of each house of the general assembly. In every such case the cause or causes for which such removal may be required shall be stated at length in the address, and inserted in the journal of each house.
The 1852 constitution operated similarly. While extending terms for some offices (Supreme Court from 8 years to 10) and providing trial court judges were to be elected, it once again declined to impose a mandatory judicial retirement age. It also kept the provision allowing the legislature to remove “for any reasonable cause.” (Art. IV, Sec. 73) The 1861 constitution, adopted when the state secede from the Union, simply replicated the exact same language (Art. IV, Sec. 73)
Constitutions of 1868: no age limit, removed from office for “any reasonable cause” by 2/3 of legislature
The constitution that Louisiana adopted after the Civil War made it easier to remove judges for “any reasonable cause” such as senility and infirmity. Art. IV, Sec. 81 of the 1868 constitution dropped the required vote by the legislature to remove a judge for a non-impeachable cause from 3/4 to 2/3.
The judges of all courts shall be liable to impeachment for crimes and misdemeanors. For any reasonable cause the governor shall remove any of them, on the address of two-thirds of the members elected to each house of the general assembly. In every such case the cause or causes for which such removal may be required shall be stated at length in the address and inserted in the journal of each house.
Constitutions of 1879 and 1898: no age limit, removed from office for “any reasonable cause” by 2/3 of legislature OR higher court for “incompetency”
The 1879 (Art. IV, Sec. 93), and 1898 (Art. 220 ) constitutions kept the same provision regarding a 2/3 vote of the legislature to remove a judge “for any reasonable cause” but it also allowed for the state’s Supreme Court (Art. 200 / Art. 221) or District Courts (Art. 201 / Art. 222) to remove judges of courts below then, on request of 25 or 50 local citizens, for what would otherwise be the impeachable offenses of “for nonfeasance or malfeasance in office [or] for incompetency…” The case would be brought by the local district attorney or the state’s attorney general depending on the level of court.
Constitution of 1913: no age limit but Supreme Court can retire on full pay at age 75, removed from office for “any reasonable cause” by 2/3 of legislature OR higher court
The constitution adopted by Louisiana in 1913 kept the older language of removal of judges by the legislature for reasonable cause (Art. 220) or by a higher court (Art. 221 and Art. 222) but provided the first inklings of a specified judicial retirement age. Specifically, members of the Supreme Court could, but were not required, to retire on full page at age 75 (Art. 86)
The Chief Justice or any of the Associate Justices of the Supreme Court may retire on full pay when he shall have reached seventy-five years of age, provided said Justice has served continually, not less than fifteen years prior to his said retirement.
Constitution of 1921: High level court judges must retire at age 75 on full pay, may retire at 70 with 2/3 pay, removed from office for “incompetency” by higher court
The 1921 constitution (Art. VII, Sec. 8) marked the first specific mandatory judicial retirement age and applied to the three highest courts in the state (Supreme Court, Court of Appeals, District Court). Judges were required to retire, on full pay, at age 75. They were given the option to retire at age 70 with 2/3 pay. Moreover, Supreme Court justices could also retire on 2/3 pay if they could demonstrate mental/physical incapacity as determined by the other members of the Supreme Court.
Also kept was the provision that allowed the Supreme Court (Art. IX, Sec. 5) and District Court (Art. IX, Sec. 6) to remove judges of lower courts for “incompetency.” Added was a provision that the other justices of the Supreme Court could remove one of their own in a similar fashion (Art. IX, Sec. 4).
Constitution of 1974: All judges must retire at age 70, removed from office for “disability”
Commencing with the 1974 Louisiana Constitution all judges were required to retire at the age of 70 (Art. V, Sec. 23(B))
Except as otherwise provided in this Section, a judge shall not remain in office beyond his seventieth birthday.
The “except as otherwise provided” dealt with two factors. First, judges who were in office under the 1921 constitution could remain. Second, the new mandatory retirement provision would not take effect until the state legislature created a retirement system for all judges. (Art. V, Sec. 23(A))
The other provision was what to do with judges, whether older or not, who were unable to perform their duties but who weren’t corrupt or criminal (i.e. impeachable offenses). Under the 1974 constitution, the Judiciary Commission could recommend that the Supreme Court “involuntarily retire” a judge “for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent.” (Art. V, Sec. 25(C))
Amendment 4 of 1995: Failed to increase age to 75
As I mentioned in 2013 when the issue came up in New York, Louisiana made an effort to increase the mandatory retirement age in 1995 as Amendment 5. As I noted previously:
Among the 14 items on the 1995 ballot, it was one of only two that lost. The loss can at least in part be attributed to bad timing; the same 1995 ballot included as Amendment 2 term limits for the legislature. Amendment 2 passed overwhelmingly 75%-25%, making the “mere” 38%-62% drubbing Amendment 4 took somewhat remarkable.
Measure 15 of 2003: Succeeded in extending to end of term judge reaches 70
The more successful effort at change for Louisiana was in 2003. Measure 15, approved 53-47% allowed for the judge to serve out the remainder of the term in which they hit 70. Thus the language of Art. V, Sec. 23(B) set for possible repeal this November now reads
Except as otherwise provided in this Section, a judge shall not remain in office beyond his seventieth birthday. A judge who attains seventy years of age while serving a term of office shall be allowed to complete that term of office.
At issue in Hawaii’s Amendment 1 is the question of whether or not the governor is obligated to release the names of the finalists submitted by the state’s judicial nominating commission. In the last several years there’s been a great deal of litigation on whether or not the information is to be open to the public. The state’s current Attorney General in legislative testimony and Governor have both argued that information should not be released, that it is exempt from the state’s freedom of information law (Uniform Information Practices Act) and that it would “chilling effect” on potential applicants.
(Governor Neil) Abercrombie’s press secretary, Donalyn Dela Cruz, said Tuesday evening, “The governor firmly believes that public disclosure is detrimental to attracting potential judicial applicants. His approach in making judicial appointments is to ensure the confidentiality of these applicants.”
Amendment 1 would add a sentence to require the judicial selection commission release the names at the time of submission to the governor or chief justice (for District Court appointments)
The judicial selection commission shall disclose to the public the list of nominees for each vacancy concurrently with the presentation of each list to the governor or the chief justice, as applicable.
Information released by commission or governor (14 states)
In practice, if not by explicit statute or constitutional requirement, 14 of the 18 states that used a commission-based system like Hawaii’s (i.e. where the governor is bound to the list of names, as opposed to the list being simply a voluntary suggestion) release the names at the time of submission.
- Alaska: Information released by nominating commission. For example, in filling a position on the Alaska Supreme Court in December 2012, a list of all applicants was posted to the commission’s website and the four finalists named as well..
- Arizona: Information released by nominating commission. For example, in filing a 2012 vacancy on the Arizona Supreme Court the Commission on Appellate Court Appointments issued this press release listing the three nominees.
- Colorado: Information released by Governor. For example, in filing a position on the Colorado Supreme Court in 2013, a list of the three nominees was released by the Governor’s Press Office.
- Florida: Information released by nominating commission. For example, in filling a position on the 5th District Court of Appeal in March 2014, the following letter was posted to the nominating commissions’ (there are several, one for each District) website.
- Indiana: Information released by nominating commission. For example, in filling a position on the Indiana Supreme Court in 2012, the Judicial Nominating Commission issued a press release with the names of the three finalists.
- Iowa: Information released by nomination commission. For example, in filling a position on the Iowa Court of Appeals in 2013, the State Judicial Nominating Commission issued a press release with the names of the three finalists.
- Kansas (court of last resort only): Information released by nomination commission. For example, in filling a position on the Kansas Supreme Court in August 2014, the Supreme Court Nominating Commission issued a press release with the names of the three finalists.
- Missouri: Information released by nominating commission. For example, in filling a position on the Missouri Supreme Court in October 2012, the Appellate Judicial Commission issued a press release with the names of the three finalists.
- Nebraska: Information released by governor. For example, in filling the Nebraska Supreme Court, Third Judicial District seat in 2012 the governor’s office issued a press release with the names of the three finalists.
- New York (court of last resort only): Information released by nominating commission. For example, in filling a position on the New York Court of Appeals (state’s court of last resort) in September 2014, the Commission on Judicial Nomination issued a press release with the names of the seven finalists.
- Oklahoma: Released by nomination commission. For example, in filling a position on the Oklahoma Supreme Court in December 2012, a spokesperson with the Administrative Office of the Courts listed the names for a reporter.
- Rhode Island (no intermediate appellate court): Information released by nominating commission. For example, in filling a position on the Supreme Court in 2009, the proceedings and recommendation vote were conducted in a public hearing that was reported in the news.
- Utah: Information released by nominating commission. For example, in filling a position on the Court of Appeals in 2010, the Court of Appeals Nominating Commission issued a press release with the names of the three finalists.
- Wyoming (no intermediate appellate court): Information released by nominating commission. For example, in filling a position on the Supreme Court in 2013, the information appeared in an Associated Press article.
UPDATE: In addition to these 14 states, New Mexico which uses a hybrid/combination system (commission submits names to governor, governor selects, but the parties then determine who faces off in the general election). There, as in the other states listed above, the names are released by the commission. For example, in August 2012, the Judicial Nominating Commission recommended two names to the governor both of which were released by the commission which conducted public hearings reported by the Associated Press.
Information not released (4 states)
- Connecticut: The list of nominees is released by neither the Judicial Selection Commission nor the Governor.
- South Dakota (no intermediate appellate court): Appears the information is not released. For example in 2009 South Dakota’s then-Governor Mike Rounds indicated to the Associated Press “he would not reveal the other names on the list because people apply with the understanding their names will not be made public.” UPDATE: as in Vermont there appears to be a specific prohibition on release of the names.
- Vermont (no intermediate appellate court): The list of nominees is released by neither the Judicial Nominating Board nor the Governor. Moreover, a state statute explicitly prohibits the Board from releasing the names (“All proceedings of the board, including the names of candidates considered by the board and information about any candidate submitted by the court administrator or by any other source, shall be confidential.”)
On Monday the New Jersey Assembly Judiciary Committee approved two bills to increase the mandatory judicial retirement age in the state from 70 to 75 but with on major amendment: the increase would not apply to the Supreme Court.
ACR 186 (constitutional amendment) and AB 3706 (statutory change) would raise the mandatory retirement ages for judges of the state’s Tax Court and administrative courts as well as Superior Court judges.
The original bill, ACR 129, would have changed the mandatory retirement age for both the Superior and Supreme Courts. According to news reports
The sponsors of the package, led by committee Chairman John McKeon, D-Morris, agreed to maintain the mandatory retirement age at 70 for Supreme Court justices because of conservative lawmakers’ desire to maintain greater control of the court’s makeup.
If approved by the legislature and voters, New Jersey would be one of only 2 states that provide that judges of the state’s court of last resort (supreme court) must retire before the general jurisdiction trial court. The other state, Indiana, provides its Supreme Court justices (and for that matter Court of Appeals) must retire at 75; trial judges have no mandatory retirement age. An effort to repeal the mandatory retirement age for those appellate judges died in a somewhat confused Senate floor vote earlier this year and discussed cleared here.
Florida’s Amendment 3 would allow for governors to prospectively appoint judges and justices of the appellate courts> The history of Florida’s appellate judicial selection shows a state, like many others, that has tried to gauge how to handle the power of appointment for governors. The state’s intermediate appellate court (District Courts of Appeal) did not exist prior to 1957. Aside from a 12-year period from 1865 to 1887, Florida governors have either not had the power to appoint judges or have it with restrictions such as Senate super-majorities (1861-1865), or judicial nominating commissions that limit the list of people the governor may considered (1972 to present).
Constitution of 1838: Legislature only, no role for the Governor; life terms
Article V of Florida’s 1838 constitution created a Supreme Court (Section 1) but provided that the judges of the Circuit Courts, collectively or a majority of them, would sit as the Supreme Court until the General Assembly could set up the Supreme Court (Section 3), a relatively common practice in other states/territories of the time. The legislature alone selected Supreme Court’s justices by concurrent vote of both houses. The first slate of Justices would serve for 5 years, thereafter the next group (or the same if re-elected) would serve for life (“during their good behavior”). From 1838 to 1851, the legislature never put forth implementing legislation, thus a majority of the Circuit Court judges served as the Supreme Court for almost 15 years.
Post-Statehood Amendments: From legislature to popular election; 8 year terms
After gaining admission into the Union in 1845 the state set out to finally set up a Supreme Court. Under an 1848 amendment a slate of Supreme Court Justices would be elected by the legislature at the end of the current terms of the Circuit Judges (around 1851). This new/first slate of Supreme Court Justices would serve for 8 years. Implementing legislation was adopted in 1851 and the Supreme Court sat as a court with its own justice at that time.
The practice of legislative-election did not last for very long after that first sitting and in 1853 another constitutional amendment transferred the power to elect the Supreme Court to statewide (“general ticket”) popular election.
Constitution of 1861 (Confederacy): From popular election to Governor with 2/3rds of Senate; 6 year terms
Upon voting to secede in April 1861 Florida adopted a new constitution, this one moving towards an appoint-and-consent model. The Governor appointed members to the Supreme Court, but it required the advice and consent of two-thirds of the Senate, not a simple majority. The Justices would serve for 6-year terms. (Art. V, Sec. 10)
Constitution of 1865: Governor with simple majority of Senate; 6 year terms
After the Civil War Florida’s next constitution kept the appoint-and-consent model, but dropped the threshold to a simple majority of the Senate. The Justices would serve for 6-year terms. (Art. V, Sec. 10)
Constitution of 1868: Governor with simple majority of Senate; life terms
Yet another constitution was adopted in Florida less than 3 years after the prior one. The 1868 constitution kept the provision regarding their being “appointed by the Governor and confirmed by the Senate” but gave their terms as “life or during good behavior.” It also provided that the governor may only pick a practicing attorney that was at least 25 years of age (Art. XVI, Sec. 30)
Constitution of 1887: Back to popular election; 6 year terms
Florida returned to the practice of popular election of Supreme Court Justices in its 1887 constitution. The 3 Justices were to serve for 6 year terms, although the first group was divided so that one justice would only serve 2 years and another 4. (Art. V, Sec. 2).
In 1902 an amendment expanded the court from 3 justices to 6 and for the limited purpose of filling the new vacancies until the election of 1905 let the governor appoint and the senate confirm. Thereafter the Supreme Court’s membership was allowed to float between 6 and 3 and the desire of the legislature, provided that justices couldn’t be deprived of their current office by virtue of the legislature eliminating the seat out from under them.
In 1932 an amendment was defeated to expand the court to a fixed, permanent 7 justices and allowed the governor to appoint 1 justice to fill out the court on a temporary basis until election(s) could be held.
In 1940, the 1932 amendment was effectively resubmitted and this time approved.
1956 Amendment: Creation of District Courts of Appeal with popular election; 6 year terms
Similar to the situation at the Florida Supreme Court in 1902 and 1940, when the District Courts of Appeal were created under a 1956 constitutional amendment the first slate of judges were appointed by the governor but without senate confirmation. Thereafter, the judges were to be elected by the population in this respective districts every 6 years, although the first group was divided so that one judge would only serve 2 years and another 4. The Supreme Court was also broken up in to 2-3-2: two justices to be elected in 1958, three in 1960, and two in 1962.
Constitution of 1968: Partisan, then non-partisan, popular election; 6 year terms
The Florida Constitution was readopted in 1968 and once again included provision for the statewide popular election of justices of the supreme court and the district-by-district popular election of judges of the district courts of appeal. Originally these were partisan races, however in 1971 these were changed to nonpartisan by statute.
1972 Amendment: Judicial nominating commissions with gubernatorial appointment; popular elections remain
Simultaneous with the (statutory) change in 1971 to nonpartisan judicial races was an effort for (constitutional) change to a commission-based or “merit” selection system for all courts. That amendment, encompassing the Supreme Court and District Court of Appeals was adopted in 1972 however it kept the existing provisions for popular elections for subsequent terms.
1976 Amendment: Judicial nominating commissions with gubernatorial appointment; popular elections remain
The 1972 amendment was itself further amendment 4 years later 1976 amendment to move from popular election to yes/no retention elections instead.
1996 Amendment: Limit names submitted to Governor to 6
In November 1996 an amendment was approved to provided that the commissions were to provide the governor “not fewer than three persons nor more than six persons.”