Special Edition: 2014 ballot items affecting the courts – 6 states confirmed, more items likely to be added

It is still well over a year until the 2014 election season but the ballot is already starting to come into focus and we can expect it to be a big year for items affecting the courts. This special edition reviews what will be and may be before voters in August and November of next year.

Alabama

SB 4, the American and Alabama Laws for Alabama Courts Amendment, will be the second time (Oklahoma 2010 was the first) where voters will get to weigh in on banning state court use or reference to international or foreign law or court decisions. The Alabama version goes further, however, and not only bans use of foreign/international law in the state’s courts, it also refuses to grant full faith and credit to court decisions or orders issued in other states that use or reference foreign/international law.

Arkansas

HJR 1009, the Elected Officials Ethics, Transparency and Financial Reform Amendment, is effectively two amendments in one. The first part restricts lobbying and lobbyist gifts for all elected officials including judges. The second part removes the legislature’s power to set salaries for elected officials, including specifically Supreme Court, Court of Appeals, Circuit, and District judges (i.e. all but City Court judges) and transfers it to a salary commission called the Independent Citizens Commission. Of the 7 member commission, the Chief Justice would get to pick 1 member. The Commission could recommend any increase (or decrease) of up to 15%.

For judges, this amendment removes the guarantee that their salaries may not be diminished (expenses paid to judges will keep their protections). Moreover, it eliminates a provision that all Circuit Judges in the state receive the same, uniform salary. It also specifically provides that salaries to judges and others be paid monthly.

Hawaii

SB 886 will be the third time in the last decade Hawaii voters contend with the issue of judicial retirement. SB 886 would increase the constitutionally established mandatory retirement age for justices and judges from 70 to 80 years of age. The last two attempts both failed (for a full history of the prior attempts, click here).

Kansas (possible)

Merit selection was eliminated by statute for the Court of Appeals and replaced with a quasi-federal system in 2013 (governor picks, senate confirms, retention election for additional terms). Efforts to end merit selection for the Supreme Court, which requires a constitutional amendment, cleared the Senate but could not get the two-thirds majority in the House. Some version or iteration will likely come back in 2014 and may yet clear the House.

The other bill to watch for is an effort to remove the state courts’ power to order additional school financing. The constitution includes a provision that “the legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law.” The state’s supreme court held in 2005 that provision necessitated additional funding for schools. The Kansas Senate approved an amendment that would prohibit the courts from ordering more money for schools (“The financing of the educational interests of the state is exclusively a legislative power under article 2 of the constitution of the state of Kansas and as such shall be established solely by the legislature.”) However, like the judicial selection effort, this one was unable to overcome the two-thirds hurdle in the House.

One final note about the above in Kansas is the timing: the Senate approved bills would have put the vote on these items onto the August 2014 primary ballot and not the November 2014 general election ballot.

Louisiana (possible)

SB 5 which would have removed the state’s mandatory judicial retirement age of 70 looked like it was on its way to the 2014 ballot but failed to get the 2/3rds majority in the House required. That said, it still could be taken back up in the 2013 session or reintroduced in 2014.

SB 5 had a fairly smooth sail through the legislature: it passed the Senate 33-2 in early May, 15-2 in the House Judiciary Committee, and 9-0 in the House Civil Law and Procedure Committee. The momentum failed to clinch the 70 votes needed in the House and it failed 61-35. At least two floor amendments were offered up; one to increase the mandatory retirement age from 70 to 76 was defeated. The other, to put the item on the October 2013 ballot rather than the November 2014 ballot, was also rejected.

This may not be the end; the last change to judicial retirement age in Louisiana took place in 2003. The first proposal, an increase from 70 to 75 (HB 86) failed to get the 2/3rds in that session’s House (68 to 22), but that failure paved the way for HB 19, a constitutional amendment later approved by voters, that allowed judges to serve out the term in which they turned 70.

Michigan (possible)

A plan to eliminate the mandatory retirement age for judges has made it through the Senate Judiciary Committee twice (2012 & 2103).

Minnesota (possible)

Minnesota is pushing forward with an effort to get a constitutional amendment on the 2014 ballot putting merit selection in place for all state judges. The House version made it through the Elections committee and the Senate version through that chamber’s Judiciary committee in 2013.

Nevada

For the fourth time in 4 decades Nevada voters will get to decide on a constitutional amendment creating an intermediate appellate court called the Court of Appeals. The prior efforts all lost by roughly the same 47-53 margins, including the latest attempt in 2010. Full details on the prior efforts can be found here.

New York (possible)

New York appeared poised to get a judicial retirement age item on the 2014 ballot, but it is now not as clear. Presently, a judge of the state’s main trial court may serve until the end of the year they reach 70. The judge can then be “certified” as available for service in two year increments until age 76. Under a constitutional amendment approved in 2011, the certifications could have continued until age 80. In addition, the 2011 amendment increased the retirement age from the state’s top appellate court from end-of-year-turned-70 to end-of-year-turned-80.

The 2011 amendment was approved for the second time by the Assembly back in February, but has stalled in the Senate. Meanwhile the Senate conducted at least two hearings on an alternative that would increase the mandatory retirement ages for all trial judges (except Town/Village judges who don’t have a retirement age anyway) from 70 to 74. The recertification for up to 6 years provision would remain untouched, thus a judge of the state’s main trial court could be “certified” to serve up to age 80.

If the 2011 amendment gets approved by the Senate, it will show up in the 2014 ballot. If the Senate abandons it and instead pushes the new proposal, it would push back a vote until 2016 at the earliest (approved in 2013/2014 session, reapproved by the 2015/2016 session).

Oklahoma (possible)

The Oklahoma Senate cleared 3 constitutional amendments in the 2013 session affecting the courts. The first, similar to Kansas, ends the state’s merit selection system for appellate judges and allows for the governor to pick any qualified person. Unlike Kansas, which simply ends the merit selection system, the Oklahoma proposal allows the merit selection commission to remain but as an advisory body only, one that would review the governor’s pick after selection but before senate confirmation.

The second bill, which can be read as related to or separate from the first, provides appellate judges are to serve a single 20 year term and ends retention elections in the state. It is prospective, allowing current judges/justices to remain in office.

The final bill could also be read as related or as a stand-alone. It removes the supreme court’s power to name its own chief justice and transfers the power to the governor.

While all passed the Senate, none of the three made it through the House. However, under legislative rules the bills are carried-over into the 2014 session automatically and could be taken up by the House without re-passage by the Senate.

Tennessee

Currently Tennessee has a statutory-based merit selection system for the state’s appellate courts. SJR 2 would specifically put into the state constitution a quasi-federal system: governor appoints, House and Senate approve, additional terms by retention elections.

What makes this November 2014 ballot item more interesting is what happens if it is rejected; so far the statute for the judicial nomination commission has not been reauthorized and the commission will cease to exist at the end of June 2013. This leaves it an open question of what happens if the quasi-federal system is rejected and there’s no merit selection statute in place. To top it all off most of the appellate judges in the state are up for a yes/no retention election in August 2014.

Texas

SJR 42 rewrites a substantial portion of the constitution with respect to the state’s judicial disciplinary commission, the State Commission on Judicial Conduct. The Commission currently may proceed on “the public censure, removal, or retirement of” judges in the state. SJR 42 provides the commission has powers of censure, removal, and retirement, plus “public admonition, warning, reprimand, censure, or requirement that [the judge] obtain additional training or education.”