22 bills to increase or eliminate mandatory judicial retirement ages: moving in IN, NJ, OR, PA, VA; killed in UT & WY

The wave of interest in increasing or eliminating the mandatory retirement ages for judges continues apace in the state legislatures. Of the seven states that have voted on these proposals:

  • 1 state (Virginia) has passed an increase and is awaiting action by the governor
  • 2 states (Indiana, Pennsylvania) have seen at least one chamber pass the proposal
  • 2 states (New Jersey, Oregon) have seen committee approval
  • 2 states (Utah and Wyoming) saw their efforts killed

Details below the fold.

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First Montana, now Rhode Island may protect judiciary’s budget proposals from executive branch alterations

Last month Montana’s Senate approved on a 28-22 vote a bill (SB 235) which would prohibit the governor from tampering with the judiciary’s budget request before it was submitted to the legislature (discussed here). It now appears as if some Rhode Island legislatures are looking to advance a similar plan.

Under SB 524 the Rhode Island judiciary’s budget would be exempt from control by the Executive Branch’s Budget Officer of the Capital Development Planning Commission. Instead, the Budget Officer would only have the authority to assist the judiciary in the development of its budget.

SB 524 is set for a hearing tomorrow (March 5) before the Senate Judiciary Committee.

Oregon: bills would require judges accept corporations as jurors; judges would have to provide jury nullification instructions

Three Oregon bills introduced late last week would change the way juries in that state function.

HB 3385 would require that judges and courts accept corporations as jurors. The state’s existing jury statute (ORS 10.030) would be supplemented with a new paragraph (4)

Any corporation organized under the laws of this state is eligible to act as a juror in a civil or criminal trial or as a grand juror. The corporation must act as a juror or grand juror through an individual agent of the corporation who would be eligible to act as a juror or grand juror under subsection (2) or (3) of this section.

Two other Oregon bills would change the way the courts handle juries in criminal cases, mandating the use of jury nullification instructions.

HB 3381 is the more limited of the two and focuses exclusively on cases where there are mandatory minimum sentences under ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) and or 137.707 (Adult prosecution of 15-, 16- or 17-year-old offenders; mandatory minimum sentences)

During a criminal jury trial in which a defendant is charged with an offense described in ORS 137.700 or 137.707, before the jury begins deliberations, the court shall:

(1) Inform the jury of any sentence that the court is required to impose if the defendant is convicted of the offense described in ORS 137.700 or 137.707; and

(2) Instruct the jury as follows: “As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty.”

SB 734 would cover any and all criminal cases and charges

During a criminal jury trial in which a defendant is charged with a felony, before the jury begins deliberations, the court shall instruct the jury as follows: “As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.”

Because all three bills were introduced late last week they have not yet been assigned to committees.

Tennessee House Civil Justice Committee urges, but does not require, state supreme court post oral arguments online

With less than 60 seconds of debate both in subcommittee (video here) and before the full committee (video here), Tennessee’s House Civil Justice Committee has advanced a joint resolution to urge the state’s supreme court post oral arguments online.

HJR 54 specifically mentions the recent changes to judicial selection in the state approved by voters in 2014 that moved the state to a quasi-federal system (governor appoints; House AND Senate confirm, retention elections for additional terms) as part of the reason for the request.

The resolution notes that most state courts of last resort already provide audio/video streaming and concludes

that the Supreme Court of Tennessee is urged to develop and adopt rules and procedures to provide free online public access to video of oral arguments before the Supreme Court. These rules and procedures should provide for video of each oral argument to be publicly available no later than twenty-one days after it is heard by the Court.

The resolution notably “recognize[s] that the Supreme Court of Tennessee has both the inherent and statutory authority to prescribe reasonable rules of practice to govern the operation of the Court” and does not compel the court to stream oral arguments. This is in contrast to proposals regarding the U.S. Supreme Court that would compel that court to broadcast.

HJR 54 now goes to the House Rules Committee before heading to the House floor.

Arkansas: hearing today on “rebuttable presumption” for judicial recusal due to campaign contributions; language almost identical to new Alabama law

Last year Alabama lawmakers enacted a plan to create a “rebuttable presumption” for judicial recusal where the total campaign contributions made by a party or attorney met a particular threshold (10% for appellate races, 15% for Circuit Court, 25% for District Court). Now one Arkansas lawmaker wants to bring that plan to elections in that state.

Arkansas HB 1457 of 2015 repeats much of Alabama HB 543 of 2014 (the states use the same names for their main trial courts).

  1. “Party” in a case means actual party, their immediate family, anyone holding 5% of value in a business named in the case, attorneys and their firms, and (for corporations) affiliates and subsidiaries.
  2. Judges must recuse “as a result of a substantial campaign contribution” by a party if a reasonable person would perceive judge’s ability to be impartial is impaired OR there is a “serious, objective probability of actual bias” due to the campaign contribution.
  3. There is a rebuttable presumption that a judge must recuse where 10%/15%/25% or more of contributions to the judge’s campaign came directly from the party AND the contributions were made at a time when it was reasonably foreseeable that the case could come before the judge.

HB 1457 is before the House Judiciary Committee and on the agenda for possible discussion.

Bills in Minnesota would end use of incumbent designation on ballots for judges seeking reelection; a look at 4 states that use such designations

Four states provide for the general designation of a judge as an incumbent on the election ballot: Arkansas, California, Michigan, and Minnesota. At the same time Texas is considering joining in on this practice, two bills filed in the last several weeks in Minnesota would end the practice in that state

First, some background.

While all four states mentioned use some sort of incumbent designation, they do so in four different manners. This is how it appears in Arkansas under A.C.A. § 7-7-305 (sample ballot from here). Note that in Arkansas you may use the word “Judge” even if running for a higher court (i.e. a Circuit Judge running for Supreme Court Justice). For example when she ran for the Supreme Court in 2014, Court of Appeals Judge Robin Wynne was identified on the ballot as “Court of Appeals Judge Robin Wynne.”


And this from California under Election Code § 13107 (sample ballot from here)

UntitledIn Michigan several statutes depending on court type allow for the word “Incumbent Position” balloting, among them MCLS § 168.409b (Court of Appeals), § 168.424a (Circuit), § 168.426d (Municipal Courts of Record), § 168.433 (Probate), and § 168.467b (District). (UPDATE: A reader also points to this constitutional provision that “There shall be printed upon the ballot under the name of each incumbent justice or judge who is a candidate for nomination or election to the same office the designation of that office.”) The result is that a judge runs with their current office below their name, as for example from this sample ballot.


Minnesota Statutes 204B.36(5) provides that “If a chief justice, associate justice, or judge is a candidate to succeed again, the word “incumbent” shall be printed after that judge’s name as a candidate.” An example from this sample ballot.


As for Minnesota, HB 676 and SB 1091 of 2015 would repeal this provision.

In the last two decades there have been dozens of attempts to remove the provision, none successful and most never advancing out of committee. Often the proposal was attached to some other provision, such as an effort to move to merit/commission selection or as part of a larger package of changes to the election laws. One interesting iteration that appeared only in 2011 provided that if the incumbent designation was repealed, the state’s mandatory judicial retirement age would be increased (discussed here).

Details below the fold.

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Week ahead: Ending all elections for MD Circuit judges; redrawing MT’s judicial districts; task force for implementing e-filing in TN courts

Legislatures Coming Into Session

Alabama 3/3/2015
Florida 3/3/2015

March 2

March 3

Maryland Senate Judicial Proceedings Committee

SB 367 (Constitutional Amendment) Ends elections for Circuit Court. Requires the Governor, by and with the advice and consent of the Senate, to appoint judges and to reappoint and reconfirm for additional terms. Reduces term of office of circuit court judges from 15 to 10 years. Allows but does not require Governor create judicial nominating commission; if such commission created must reflect diversity of state.

Tennessee House Civil Justice Committee

HJR 54 Requests Tennessee Supreme Court adopt rule to provide free online public access to video of oral arguments.

Tennessee Senate Judiciary Committee

SB 41 Establishes advisory task forces to study and report recommendations on electronic filing in state courts and the appointment of counsel for indigent defendants.

March 4

March 5

Montana House Local Government Committee

HB 430 Creates judicial redistricting commission to recommend changes to district lines for 2017 legislature.

March 6