Publication note: my article in latest Judicature on how legislatures (state and local) create specific courts

I have this

Disorder in the courts: The varied ways states establish and oversee courts presents challenges for reform

in the latest edition of Judicature. The article examines not only the constitutional provisions related to courts, but also the specific mechanism legislatures (state and local) use to create them. For example Florida’s County Courts are built right into the constitution in each county, whereas many local courts are broadly authorized by state statute, but a local ordinance sets up the specific court (e.g. Municipal Court of the City of Z).

Texas legislation would term limit state’s judiciary: 18 years (max) and out. Five other states considered similar legislation in last session.

Last year 5 states considered term limiting judges, including a proposed retroactive term limit that would have targeted Florida’s Supreme Court. Now Texas’ legislature is set to consider their own version in the 2017 session.

SJR 12 (Constitutional Amendment) would allow for term limits to be set by the state’s two courts of last resort by rule.

The legislature by general law shall require the Supreme Court, in consultation with the Court of Criminal Appeals, to establish a limit on the number of terms a judge or justice may be elected to serve as a judge or justice of a court established under this article, by the legislature under general law, or by the governing body of a municipality by ordinance

However, the implementing legislation (SB 109) specifies whatever term limits program the Supreme Court/Court of Criminal Appeals comes up with, judges must be limited to 18 years service on a particular court.

(b) The term limits established in the rules adopted under Subsection (a) may not allow a judge or justice to serve as a judge or justice of any one court for more than 18 years.

As I noted in 2015 when that session’s raft of term-limits-for-judges legislation was introduced, no state (other than New Mexico’s part-time non-attorney probate judges) provides for judicial term limits. Moreover, when such efforts have been attempted in the past, voters have rejected them.

The Alabama judicial disciplinary system suspended Chief Justice Roy Moore from office, now members of the legislature want to get rid of the system or remove its powers

In September of this year Alabama Chief Justice Roy Moore was suspended without pay for the remainder of his term by the state’s judicial disciplinary commission (Court of the Judiciary) on a complaint from the state judicial investigatory arm (the Judicial Inquiry Commission). Now members of the Alabama legislature want to disband both or strip them of power (news reports here and here).

SB 8 of 2017, as prefiled, would require legislative approval of any Court of the Judiciary decisions to remove a judge from office. Moreover, it would remove the exiting constitutional provision that “disqualifies” (suspends) a judge from office after the Judicial Inquiry Commission files charges until a final determination of the case against the judge.

SB 11 of 2017, as prefiled, goes further than SB 8 and simply abolishes both the Court of the Judiciary and the Judicial Inquiry Commission. There is no indication of what entity, if any, would replace them. The author of SB 11 described the proceedings against Chief Justice Moore as an “outrageous abuse of process.”

Also possibly coming up in 2017 will be legislation pushed for by the executive committee of the Alabama GOP to have all 9 members of the Judicial Inquiry Commission elected. Currently the commission is made up of

1 appellate judge appointed by the supreme court, but who can’t be supreme court justice

2 circuit judges appointed by the Circuit Judges’ Association

1 District Judge appointed by the Lt. Governor

3 persons who are non-lawyers appointed by the governor with confirmation by the Senate

2 members of the State Bar appointed by the Board of Bar Commissioners.

The Alabama legislature comes back into session in February.

First, Arizona, then Georgia, will North Carolina too expand its supreme court in 2016? It was tried (and failed) in 2013.

I’ve written about the ever growing interest in state legislatures lately to add, or reduce, the number of members of their courts of last resort. Arizona did it this year. So did Georgia. Now, a plan first circulated in 2013 in North Carolina to expand that state’s supreme court from 7 to 9 members, this time in a lame duck special session, may be in the offing and might allow a governor (who could be voted out of office, the ballots are still being counted) to pick the 2 new justices.

News reports indicate plans are circulating among legislative leaders to expand the court in a December special session called to deal with the impact of Hurricane Matthew. While the constitution (Art. II, Sec. 24) gives a list of things a special session cannot consider like bridges and juror pay, the supreme court’s not on that list.

And as to the supreme court, North Carolina is a “minimum/maximum” state: the constitution provides a minimum number of justices (Chief Justice + six Associate Justices) but then provides “the General Assembly may increase the number of Associate Justices to not more than eight.” And unlike 26 states, the legislature is free to do this on their own: they don’t need voter approval (24 states) or the court’s consent (Alaska and South Dakota).

This is just the latest attempt to expand the NC Supreme Court. As I noted in 2013, there was a surprise GOP amendment added to an unrelated bill that was popped into a Senate Rules Committee hearing without warning. It was beaten back only when the House Republican caucus failed to support it.

Election 2016: Results and Implications for State Courts

Time to review the 4 ballot items from last night I was focused in terms of affecting the courts.

Mandatory judicial retirement ages

Oregon’s attempt to repeal that state’s mandatory judicial retirement age of 75 failed with only a 37% yes vote. That number is consistent with other states that attempted to raise or remove their ages. Those efforts only received, at best, 40% (New York 2013) and at worst 22% (Hawaii in 2014).

The other attempt was in Pennsylvania. There the proposal on the ballot would have set the mandatory judicial retirement age at 75 but pointedly did not include language that this was an increase from the current 70. The language, which appears to have been unique to Pennsylvania, resulted in the proposal squeaking to victory with 50.88%.

As I’ve noted, this issue is not going away as more and more states look to put in such increases or repeals. The trend remains, however, one in which legislators are persuaded to put the items on the ballots, but voters when confronted with language related to increases or repeals are inclined to reject such efforts.

Judicial Disciplinary Commissions

The Georgia legislature’s attempt to take control over the membership of the Judicial Qualifications Commission was approved with 62% of the vote. This move comes after similar efforts in Tennessee approved in 2010 that give the legislature the power to name 6 out of 16 members of that state’s judicial disciplinary body (Board of Judicial Conduct).

That said, it is unclear whether legislators in other states will have an interest in changes such as those in Georgia and Tennessee, especially given that in 24 states changes to membership would require either a constitution amendment and in another 10 the membership is set by the judiciary, not the legislature.

Clerks of Court Terms

Arkansas’ amendment to increase the terms in office for county officials from 2 years to 4, including Clerks of the Circuit Court, was approved. This leaves only certain counties in North Dakota with clerks of general jurisdiction courts elected to 2-year terms. As such, last night’s vote to increase terms isn’t so much the start of a trend but the end (or near end) of one.

Bail Reform

One additional item not covered but that readers have shown an interest in that relates to the courts is New Mexico’s bail reform constitutional amendment (Amendment 1) that was approved with 87% of the vote. The plan allows judges to deny bail to defendants considered exceptionally dangerous and to grant  pretrial release to those who aren’t considered a threat but remain in jail because they can’t afford bail.

In light of increased interest in reforms to fees, fines, and bail practices in state courts, it is almost certain that some activity in this arena will take place in state legislatures, if not as a constitutional amendment then as legislation focused on pretrial release and risk assessment.

National Center for State Courts 2017 Civics Education Contest for Grades 3-12

Information and signup here here.

Contest:

In recognition of Law Day, May 1, 2017, the National Center for State Courts is sponsoring a contest for elementary, middle school, and high school students. The contest entries will be divided into three groups: 3rd-5th graders, 6th-8th graders and 9th-12th graders.

Each grade group is encouraged to answer the following essay question:
What does it mean to be a U.S. citizen?

Rules for essay contest:
* Entries must be 100 words or less.
* Entries must be typed and submitted in the form below.

Prizes:

  • One first place winner in each age group will receive a $100 Amazon gift card and a class set of Justice Case Files graphic novels.

  • One second place winner in each age group will receive a $50 Amazon gift card and a class set of Justice Case Files graphic novels.

  • One third place winner in each age group will receive a $25 Amazon gift card and a class set of Justice Case Files graphic novels.

Deadline

Friday, February 24, 2017.

Voting & Judging

First, second, and third place winners from each grade level will be selected by NCSC staff members and judges from around the country based on creativity, originality, overall quality and adherence to the theme. The winners will be notified by e-mail or phone by April 28, 2017. Winning entries may be shared on NCSC’s social media outlets (Facebook, Twitter, Pinterest, LinkedIn and Vimeo), as well as NCSC publications and websites.

Official Rules & Guidelines

Please be advised that by submitting an essay, parents give NCSC permission to use essays online or in print publications. Read the Official Rules and Guidelines.

 

 

Election 2016: Both Pennsylvania and Oregon were late-adopters of mandatory judicial retirement ages

As I mentioned in prior posts on this subject, many states either came out of the Revolution (like New York’s 1777 constitution), or entered into the Union (like Hawaii when it was admitted into statehood), with mandatory judicial retirement ages.

The states considering revisions to their ages (Oregon and Pennsylvania) are actually in this respect very, very late adopters.

Pennsylvania (193 years)

Pennsylvania has had 5 state constitutions. Of these, only 1 adopted in 1968 and going into effect in 1969 made mention of mandatory judicial retirement ages.

The 1776 constitution made no mention of mandatory judicial retirement. Neither did the 1790 constitution nor the 1838 constitution nor the 1874 constitution.

It was not until 1968 and the adoption of Art. V, Sec. 16(b) that the mandatory age was put in as the result of concerns expressed by members of constitutional convention regarding judges aging into senility (See pages 199-200).

Justices, judges and justices of the peace shall be retired upon attaining the age of 70 years.

This has been effectively amended once since 1969. In 2001 voters approved Amendment 2, allowing for judges to serve out the year they turn 70. That proposal was approved by 67.5% of voters.

Justices, judges and justices of the peace shall be retired on the last day of the calendar year in which they attain the age of 70 years.

Oregon (103 years)

Oregon has had 1 constitution but, effectively, 2 Judiciary Articles. The first (now called Article VII (Original)) was adopted in 1857 and made no mention of a mandatory retirement age. A 1910 revision, called Article VII (Amended), also made no mention.

It wasn’t until 1960 that a mandatory judicial retirement age was worked into the state’s constitution as Article VII (Amended), Sec. 1a. It wasn’t as prescriptive as the Pennsylvania model, instead allowing the legislature to set an age from end-of-year-turns-70 to 75.

Notwithstanding the provisions of section 1, Article VII (Amended) of this Constitution, a judge of any court shall retire from judicial office at the end of the calendar year in which he attains the age of 75 years. The Legislative Assembly or the people may by law:

(1) Fix a lesser age for mandatory retirement not earlier than the end of the calendar year in which the judge attains the age of 70 years