Election 2013: Are NY Proposal 6’s loss or Texas Prop 9’s win harbingers for 2014?

The final results are in from last night’s two electoral items related to the courts and both were fairly dramatic in their win/loss ratios.

Texas Proposition 9 was approved 85% to 15%

Prior to last night the Texas State Commission on Judicial Conduct could only issue an order of public censure or recommend a judge be removed from office/forced into retirement. Under Proposition 9 as approved the Commission can now issue orders of public censure, public admonition, warning, and reprimand in addition to mandatory training or education.

Projection for 2014: Texas was one of only a few states that put the specific and explicit powers of their judicial disciplinary commission into the constitution. In most other states Proposition 9 would have been a simple enactment to the commission’s authorizing statute without need of a referral to the voters. That said, there have been efforts in the recent past (FloridaMaryland, Minnesota, and Tennessee) to expand the power of judicial disciplinary commissions to punish judges for their decisions, and the overwhelming win here might lead some to believe voters are eager to expand the power of such commissions.

New York Proposal 6 was rejected 60% to 40%

This constitutional amendment would have increased the mandatory retirement age for the state’s top appellate court (court of appeals) from 70 to age 80 and prohibited the appointment of any person over age 70 to the court of appeals. It also would have allowed judges of main trial court (supreme court) to be recertified for 2-year increments from age 70 to age 80.

This marks the 6th time in 20 years an effort to increase the mandatory retirement ages for judges has failed at the ballot box. Of the four efforts that did succeed, three (Louisiana’s Measure 15  in 2003, Pennsylvania’s Amendment 2 in 2001, and Texas’s Proposition 14 in 2007) were effectively minor changes to allow judges to serve out their current term in office or serve out the end of the calendar year they hit the retirement age. Only one (Vermont Retirement Age for Judges Amendment in 2002) actually erased or eliminated a retirement age (age 70) and gave the legislature the power to set it at any age from 70 – 90 (they opted for 90).

Projection for 2014: This marks the fourth loss in a row for increasing judicial retirement ages (Arizona’s Proposition 115 in 2012, Hawaii’s Amendment 2 also in 2012, and Ohio Issue 1 in 2011) but each lost for effectively different reasons.

  • Arizona Proposition 115’s loss was due not so much for the mandatory retirement age increase but for the rest of the proposal which changed the state’s merit selection system and was vigorously opposed for that reason.
  • Hawaii’s Amendment 2 shows the danger of a disinterested electorate. This plan kept the mandatory retirement age of 70, but allowed the state’s chief justice to effectively recertify and call back into service retired judges for 3 month increments past the age of 70. It failed not because of a substantial “no” vote or campaign, but because 10.4% of voters simply skipped the question which, under the Hawaii electoral code, was effectively a “no” vote.
  • Ohio’s Issue 1 was a perfect storm of bad luck in terms of ballot timing and placement. Also on was Issue 2, an effort to limit collective bargaining rights for public employees. Issue 3 purported to exempt Ohio residence from any national health care mandates. Issue 2 & 3 saw vocal and energetic supporters and opposition. The state Democratic Party came out with its “No-No-No” position: no on all measures. Meanwhile the Ohio Republican party had no apparent position on Measure 1, while backing Yes votes on Issues 2 and 3. Issue 1 lost 38-62% (for my review of the vote tallies at the time, click here).

There is already a judicial retirement age increase on the 2014 ballot in Hawaii (70 to 80) with others possible in Louisiana, Michigan, and other states so the issue is bound to come up at the ballot box again. It remains to be seen whether voters will approve a straight increase or elimination of the mandatory judicial retirement ages in their state.