Arkansas’ unique constitutional trigger allowing for Court of Appeals merit selection may be, er, triggered

With the recent efforts in Kansas and Iowa, one might get the impression all state legislators have it out for merit selection for intermediate appellate courts. Not in the case of at least some members of the Arkansas legislature.

In 2000, the state adopted Amendment 80 which effectively restructured the entire state’s judiciary, consolidated many of the smaller local courts into a new district court, etc. Section 18 specifically and explicitly maintained the existing nonpartisan election system, but with a “trigger” provision. Instead of changing the nonpartisan election system via another constitutional amendment, the legislature (with or without the governor, it is not clear) can simply pass a bill sending the issue to the voters. Of course, given that the Arkansas constitution allows for an amendment to be submitted to the public with a single session majority vote, it is not clear this is any harder than a flat-out constitutional amendment would be.

(A) Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office. Provided, however, the General Assembly may refer the issue of merit selection of members of the Supreme Court and the Court of Appeals to a vote of the people at any general election. If the voters approve a merit selection system, the General Assembly shall enact laws to create a judicial nominating commission for the purpose of nominating candidates for merit selection to the Supreme Court and Court of Appeals.

(B) Vacancies in these offices shall be filled by appointment of the Governor, unless the voters provide otherwise in a system of merit selection.

SB 744 of 2011 would trigger the merit selection provision for the Court of Appeals only, leaving the Supreme Court with nonpartisan races. Because Amendment 80 leaves the composition and details of the judicial nominating commissions to the legislature to figure out after approval, the ballot language is spartan:

TO AUTHORIZE THE GENERAL ASSEMBLY TO ESTABLISH A MERIT SELECTION SYSTEM FOR THE APPOINTMENT OF JUDGES TO THE COURT OF APPEALS

[ ] FOR authorizing the General Assembly to establish a merit selection system for the appointment of judges to the Court of Appeals
[ ] AGAINST authorizing the General Assembly to establish a merit selection system for the appointment of judges to the Court of Appeals

The only question I have is whether such a separate treatment is permitted. Amendment 80 uses the phrase “Supreme Court and the Court of Appeals” at each opportunity. Will opponents make the argument that it is a joint proposition (i.e. that you can have merit for neither or both)? Anyone familiar with Arkansas jurisprudence care to chime in?

The bill is currently pending in the Senate Committee on the Judiciary.

One thought on “Arkansas’ unique constitutional trigger allowing for Court of Appeals merit selection may be, er, triggered”

Comments are closed.