New Jersey: Committee balks at raising mandatory retirement age for Supreme Court; approves plan to increase for all other judges

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 Amendment 3: State has history of limiting governor’s discretion on judicial picks

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.”

 

Florida Amendment 3: 26 states give the governor a role in selecting appellate judges

At issue in Florida’s Amendment 3 is whether a governor should be allowed to “prospectively appoint” justices of the state’s supreme court and judges of its district court of appeals. The key provision is an amendment to Art. V, Sec. 11 by adding the following as 11(a)(2)

Whenever a prospective vacancy occurs in a judicial office for which election for retention applies, the governor shall fill the prospective vacancy by appointing a justice or judge from among at least three persons but not more than six persons nominated by the appropriate judicial nominating commission. The term of the appointment commences upon the expiration of the term of the office being vacated and ends on the first Tuesday after the first Monday in January of the year following the next general election.

As I noted back on September 2 in the context of Tennessee’s Amendment 2, most states (26/50) give the governor a role in appointing judges/justices of the court of last resort. When it comes to the intermediate appellate courts, less than a majority well give the governor a role (18/40; 10 states don’t have such courts).

Supreme Courts/Courts of Last Resort

  • Governor free to pick (3): California, Maine, New Jersey
  • Governor must pick from commission list (18): Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Indiana, Iowa, Kansas, Missouri, Nebraska, New York, Oklahoma, Rhode Island, South Dakota, Utah, Vermont, Wyoming
  • Governor may pick from commission list but isn’t obligated to (5): Delaware, Maryland, Massachusetts, New Hampshire, Tennessee

Courts of Appeals/Intermediate Appellate Courts

  • Governor free to pick (2): California, Kansas
  • Governor free to elevate judge from lower court (1): New York (Appellate Divisions; judges of the Appellate Terms chosen in other fashion)
  • Governor must pick from commission list (12): Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Indiana, Iowa, Missouri, Nebraska, Oklahoma, Utah
  • Governor may pick from commission list but isn’t obligated to (3):  Maryland, Massachusetts, Tennessee

 

Arkansas Issue 3: Only 22 states have judicial compensation commissions and they tend to be advisory

An aspect I’ve not discussed yet of Arkansas’ Issue 3 is the specific role and function of the Independent Citizens Commission. Under the terms of the amendment if approved the commission would meet and set the salaries for justices/judges, elected constitutional officers of the executive department, and members of the General Assembly. The Commission’s determinations would be automatically put in place and the legislature would not have the power to override their determination. Moreover, the legislature would not have to appropriate the funds separately, a sticking point in other states.

22 states have statutorily or constitutionally created commissions to look at judicial compensation. Several other states (such as Kentucky in 2010) have ad hoc or one-time only commission to this effect.

Data for the below is from two NCSC products: State Court Organization and the KIS Resource Guide on such commissions.

Judicial Compensation Commissions vs. Joint Compensation Commissions

The commission envisioned under Issue 3 would handle the salaries for the state’s top officials in all three branches of government. Of the 22 states with commissions that work on or look at judicial compensation, half (11) focus solely on the judiciary.

  • Reviews Non-Judicial Positions (11): Alaska, Arizona, Georgia, Hawaii, Michigan, Minnesota, Missouri, New Jersey, Oregon, Utah, Washington
  • Reviews Only Judicial Positions (11): Alabama, Connecticut, Delaware, Iowa, Louisiana, Maine, Maryland, New Mexico, New York, Oklahoma, Texas

Advisory, Automatic, or Automatic Subject to Override?

Another element of the Issue 3 commission is that its recommendations would be automatically into place and not subject to neither a separate appropriation nor a legislative override. In the case of Arkansas the adjustment would be automatic (“An adjustment to a salary shall be effective ten (10) days after it is filed with the Auditor of State.“)

  • Commission recommendation is advisory only; legislature must appropriate funds (14): Alabama, Alaska, Connecticut, Georgia, Iowa, Louisiana, Maine, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Texas, Utah
  • Commissions recommendation is automatically appropriated unless legislature overrides (7): Arizona, Delaware, Hawaii, Maryland, Missouri, New York, Oklahoma
  • Commissions recommendation is automatically appropriated unless voter referendum overrides (1): Washington

 

 

Arkansas Issue 3: Compensation for judges would be protected from diminishment while in office

Note: a draft version of this was posted accidentally

I alluded yesterday in my review of Arkansas’ constitutional history of judicial compensation that throughout much of the state’s history the compensation of judges of the state’s lower courts was not constitutionally protected while those of the higher courts (Supreme, Circuit, and while it existed Chancery) were. Issue 3 however reword those protections.

The present language is:

The General Assembly shall by law determine the amount and method of payment of salaries and expenses of the judges of the Supreme Court, Circuit Courts, Chancery Courts, and Municipal Courts of Arkansas; provided such salaries and expenses may be increased but not diminished during the term for which such judges are elected; provided further that the salaries of Circuit and Chancery Judges shall be uniform throughout the state.

The Issue 3 language would read:

The independent citizens commission may increase but not diminish the salaries for the positions under subdivisions (d)(9) – (14) of this section…

The offices listed in (d)(9)-(14) include

(9) Chief Justice of the Supreme Court;

(10) Justice of the Supreme Court;

(11) Chief Judge of the Court of Appeals;

(12) Judge of the Court of Appeals;

(13) Circuit court judge; and

(14) District court judge.

1836/1864 Constitutions: High courts protected from diminishment, lower courts not

Both the 1836 and 1864 constitutions protected only the judges and justices of the Supreme and Circuit Courts. Chancery Courts were first created in 1855, but not protected under the 1864 constitution. County and Justice of the Peace Judges did not have compensation protections. Specific language can be found in yesterday’s post.

1874 Constitution: No mid-term diminishment, but no increase either

The 1874 Constitution included two separate protections against diminishment for Supreme and Circuit Courts, first in the Judiciary Article (Art. VII, Sec. 10 (Supreme) and Sec. 18 (Circuit)) and next in the Miscellaneous Provisions Article (Art. XIX, Sec. 11). It is the second provision that introduced for the first time a prohibition on raising judge salaries during their term in office

The governor, secretary of state, auditor, treasurer, attor­ney-general, judges of the supreme court, judges of the circuit court, commissioner of State lands, and prosecuting attorneys shall each receive a salary to be established by law, which shall not be increased or diminished during their respective terms

Lower court judges remained implicitly unprotected.

The county judge shall receive such compensation for his services as presiding judge of the county court, as judge of the court of probate, and judge of the court of common pleas, when established, as may be provided by law. (Art. VI, Sec. 37)

The Amendments

Amendment 9 (1924): Expanded the Supreme Court and kept the no diminishment/no increase language after a one-time change by the legislature in implementing the new provision (“such salary shall not thereafter be increased or diminished during their respective terms…”)

Amendment 23 (1928): Increased salary for Judge of the Circuit Courts and Chancellors to $3,600. Since it specified their salary, neither increase nor diminishment was going to happen without a constitutional amendment.

Amendment 37 (1944): Created a range for the “salaries and expenses” of Judges of the Circuit Courts and Chancellors to $4,800 to $7,200 with the specific amount to be set by the legislature.

Amendment 43 (1956): This amendment adopted the modern language in use today. It also reopened the possibility after 80 years of mid-term salary increases for judges.

The General Assembly shall by law determine the amount and method of payment of salaries and expenses of the judges of the Supreme Court, Circuit Courts, Chancery Courts, and Municipal Courts of Arkansas; provided such salaries and expenses may be increased but not diminished during the term for which such judges are elected; provided further that the salaries of Circuit and Chancery Judges shall be uniform throughout the state.

What do other states do?

Nearly every state has a constitutional provision related to judicial salaries and compensation, however they vary widely in terms of whether or not such items can be reduced or increased (as was the case in Arkansas for decades) and if so under what conditions. Most recently New Jersey amended its constitution after a state supreme court ruling that making judges contribute more to the pension program was a diminishment

State by state details below the fold.

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Arkansas Issue 3: State has had a long, winding constitutional history when it comes to judicial compensation

One provision of Issue 3 would create an Independent Citizens Commission to set salaries for judges in the state. Arkansas has had a somewhat tumultuous constitutional history when it came to compensation for officials in general and for the courts in particular.  Since its 1874 constitution at least there has been effort after effort to lock in salaries for officials, including and specifically judges, into the state constitution, making it all but impossible to raise salaries at any rate.

1836/1864 Constitutions

Both the 1836 and 1864 constitutions provided the same language on this score: Supreme and Circuit Court judges were explicitly protected in their “compensation” and County and Justice of the Peace Courts compensation were to be set by law, but there were no particular limits aside from non-dimishment for the higher courts (a matter which will be dealt with tomorrow).

The judges of the supreme and circuit courts shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be diminished during the time for which they are elected [or appointed]. (1836 Constitution: Art. VI, Sec 8; 1864 Constitution: Art. VII, Sec. 10; 1868 Constitution Art. VII, Sec. 13 (added words “elected or appointed”))

The Presiding judge of the County Court and Justices of the Peace shall receive for their services such compensation and fees as the General Assembly may from time to time by law direct. (1836 Constitution: Art. VI, Sec. 11; 1864 Constitution: Art. VII, Sec. 13)

1874 Constitution: Locking in salaries

The 1874 Constitution started to change some of the language that was at play. While keeping some of the language of protecting the compensation of higher court judges, it also capped that total compensation within the constitution itself.

The supreme judges [and judges of the circuit courts] shall, at stated times, receive a compensation for their services to be ascertained by law, which shall not be, after the adjournment of the next general assembly, diminished during the time for which they shall have been elected. (Art. VII, Sec. 10 (Supreme) and Sec. 18 (Circuit))

The…judges of the supreme court, judges of the circuit court…shall each receive a salary to be established by law, which shall not be increased or diminished during their respective terms…Provided, That the salaries of the respective officers herein mentioned shall never exceed per annum…for judges of the supreme court, each, the sum of $4,000; for judges of the circuit courts and chancellors, each, the sum of $3,000… (Art. XIX, Sec. 11)

No officer of this State, nor of any county, city, or town, shall receive, directly or indirectly, for salary, fees, and perquisites, more than five thousand dollars net profit per annum in par funds… (Art. XIX, Sec. 23).

Moreover, lower court judges remained implicitly unprotected.

The county judge shall receive such compensation for his services as presiding judge of the county court, as judge of the court of probate, and judge of the court of common pleas, when established, as may be provided by law. (Art. VI, Sec. 37)

The Amendments

Amendment 9 (1924): Expanded the Supreme Court and at the same time rewrote the compensation protection language for that court raising the $4,000 ceiling set in 1874 up to $7,500.

The Supreme Court judges shall at stated times receive compensation for their services to be fixed by law. When the salary of the judges under this amendment to the Constitution shall have been established by law, such salary shall not thereafter be increased or diminished during their respective terms. Until otherwise provided by law, the judges of the Supreme Court shall each receive a salary of seven thousand five hundred dollars per annum.

Amendment 23 (1928): Increased salary or Judge of the Circuit Courts and Chancellors to $3,600.

Amendment 37 (1944): Created a range for the “salaries and expenses” of Judges of the Circuit Courts and Chancellors to $4,800 to $7,200 with the specific amount to be set by the legislature.

Amendment 43 (1956): This amendment adopted the modern language in use today.

The General Assembly shall by law determine the amount and method of payment of salaries and expenses of the judges of the Supreme Court, Circuit Courts, Chancery Courts, and Municipal Courts of Arkansas; provided such salaries and expenses may be increased but not diminished during the term for which such judges are elected; provided further that the salaries of Circuit and Chancery Judges shall be uniform throughout the state.

Amendment 56 (1976): Repealed Art. XIX, Sec. 23 which limited lower court judges not otherwise covered by Amendment 43 to no more than $5,000.

Arkansas Issue 3: Salary commission for judges and others

Arkansas voters will have in the form of Issue 3 a whole host of topics all in one vote. The ballot item, originally three separate bills that were merged together includes changes to legislative term limits as well as limits on lobbyist contributions and gifts to officials.

Of particular relevance to the courts are three provisions that will be examined this week:

  • Independent Citizens Commission: Commission to set all salaries for judges/justices, members of the General Assembly, and elected constitutional officers of the executive department. The salary recommendations are to go into effective automatically without the need for separate appropriation.
  • Increase/diminishment during term of office: currently “salaries and expenses may be increased but not diminished during the term for which [] judges are elected.” Issue 3 would  reword the provision.
  • Uniform judicial salaries: The state constitution also provides that “the salaries of Circuit and Chancery Judges shall be uniform throughout the state.” Although Arkansas disbanded its Chancery Courts in 2001, the Circuit Courts remain.