Oregon Measure 87: why a 1979 Oregon Supreme Court case on judges as part time teachers is on the 2014 ballot

Most state constitutions provide for one of two types of prohibition on judges activities outside of their judgeship:

  1. a prohibition on holding more than one governmental office (dual-office holding)
  2. a prohibition on getting any other salary, whether from federal/state/local government or the private sector, regardless of whether they hold an “office”. (dual-salary)

The first issue in Oregon’s Measure 87 are provisions of the state’s constitution that contend with both dual-office holding and dual-salary. Specifically, judges are presently prohibited from service in the National Guard, but may serve in the state militia (for free) and as post masters (if paid no more than $100). (Art. XV, Sec. 8)

No person holding a lucrative office, or appointment under the United States, or under this State, shall be eligible to a seat in the Legislative Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constition [sic] expressly permitted; Provided, that Officers in the Militia, to which there is attached no annual salary, and the Office of Post Master, where the compensation does not exceed One Hundred Dollars per annum, shall not be deemed lucrative.

Also at play is a 1979 decision by the Oregon Supreme Court case of In re Sawyer (286 Ore. 369) that a judge who was regularly employed as a part-time teacher for pay by a state-funded college violated the state constitution’s separation of powers provision (Art. III, Sec. 1)

The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.

In that instance, a complaint by the Commission on Judicial Fitness alleged Circuit Judge Loren Sawyer was acting in contradiction to Art. III, Sec. 1 since the school he taught at (Southern Oregon College) was a state-supported school under the executive branch.

The Oregon Supreme Court had 20 years prior to Sawyer held a state legislator could not both serve as a legislator and teach at a public school under the executive branch under Art. III, Sec. 1 (Monaghan v. School District No. 1211 Ore. 360 (1959)). After Monaghan an initiative petition in fact amended the state constitution to allow for legislator-teachers (now Art. XV, Sec. 8).

The supreme court in Sawyer extended the reasoning in Monaghan to Judge Sawyer and all judges until the constitution was amended in a similar fashion. (“Article III, § 1 has not itself been amended, however, so as to permit judges to serve as teachers.”) For the record, Judge Sawyer was given the option by the Supreme Court to either stop teaching or be suspended for his judgeship. Indications are he opted to stop the teaching and he continued to serve as a judge for decades thereafter.

A provision of Measure 87 would address both the judges-in-the-National-Guard question as well as judges-as-public-school-teachers question posed in Sawyer 35 years ago.

A person serving as a judge of any court of this state may be employed by the Oregon National Guard for the purpose of performing military service or may be employed by any public university as defined by law for the purpose of teaching, and the employment does not prevent the person from serving as a judge.

The only other state to carve out such a specific judges-may-teach exception is California. In 1988 voters approved Prop 94, allowing for part-time teaching judges (“except a judge of a court of record may accept a part-time teaching position that is outside the normal hours of his or her judicial position”.) That too was the result of a court decisions in the state (see description at page 64 here) that made a judge’s part-time teaching at a private college/university acceptable but teaching at a public school a constitutional violation.

Dual-office and dual-salary provisions for judges from all 50 states can be found below the fold.

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Alabama Amendment 1: State would become tenth in nation to ban state courts from referencing international or foreign law; would also deny full faith and credit to court decisions from other states

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.

2014

Florida SB 386 was limited to Family law (Chapter 61 & 88 Florida Statutes)

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.

2013

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

North Carolina HB 552 was limited to Divorce, Alimony, and Uniform Child-Custody Jurisdiction and Enforcement Act (Chapter 50 and Chapter 50A of the General Statutes)

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.

Oklahoma HB 1060

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.

Washington State SB 5797

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.

2012

Kansas SB 79

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.

South Dakota HB 1253

No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.

2011

Arizona HB 2064

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.

2010

Oklahoma HJR 1056 was approved by voters but struck down by federal courts as targeting Muslims by specific reference to “sharia.”

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.

Louisiana HB 785 & SB 460

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.

Tennessee HB 3768 & SB 3740

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.

 

Louisiana Amendment 5: 32 states impose some form of mandatory retirement age on most or all of their judges

NOTE: This is a repost from the discussion related to Hawaii’s constitutional amendment on the November ballot to increase their mandatory judicial retirement age from 70 to 80.

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
74 1 Texas
75 5 Indiana, Kansas, Oregon, Utah, Washington
90 1 Vermont
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

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Louisiana Amendment 5: State constitution has only had mandatory judicial retirement age for all judges since 1974

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.

 

Hawaii Amendment 1: 14 out of 18 states release names submitted to governor for selection to judicial 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.

  1. 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..
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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)

  1. Connecticut: The list of nominees is released by neither the Judicial Selection Commission nor the Governor.
  2. Hawaii
  3. 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.
  4. 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.”)

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.