Kansas, Oklahoma, and other states show the legislative perils of being a statutorily created intermediate appellate court

I noted two weeks ago that when Oklahoma’s Speaker submitted his legislative agenda with respect to the courts that it included a bill for term limits for the Court of Civil Appeals only (HB 3379). It was notable in that much of the Speaker’s prior commentary had been about his objections to the state’s supreme court. Last year a move was made to eliminate merit selection for the Kansas Court of Appeals, but the inability to do so for the Kansas Supreme Court. A year before that, anger over an Arizona Supreme Court decision prompted a member of the Arizona Senate to try and reduce the size of the Court of Appeals, which never even heard the case in question, from 22 down to 6. All this seems to suggest a pattern of legislative activity emerging with respect to intermediate appellate courts (IACs), much of which seems focused on statutorily created IACs.

First, some history.

IACs are relatively new; most states simply didn’t have them prior to 1965 and to this day 10 states still do not have an IAC (that may go down to 9 if Nevada voters approve an IAC in November 2014). In making revisions to their state constitutions, some states during this time declined to create an IAC, instead giving the legislature the option at some point in the future to create such courts by statute if the need arose.

As a result of the 45 IACs in 40 states (Alabama, Indiana, New York, Pennsylvania and Tennessee have two IACs) 16 are created via statutory provision alone. As such, unlike the super-majority + vote at the ballot box needed to alter courts of last resort, IACs are in a more vulnerable spot. Some rely entirely on statute for their method of selection, terms, and retirement. Others, such as Massachusetts, may rely on statute for their creation but once created the state constitution sets the parameters in these three areas.

Details regarding those 16 IACs below the fold.

State Court Selection Terms Retirement
Alaska Court of Appeals Statute: 22.07.070 Statute: 15.35.053 Constitution: Art. IV, Sec. 11 applies to all “justices and judges”
Arizona Court of Appeal Constitution: Art. VI, Sec. 37 applies to any “intermediate appellate court of record” Statute: 12-120.01 Constitution: Art. VI, Sec. 20 & Sec. 39
Colorado Court of Appeals Constitution: Art. VI, Sec. 25 applies to selection of judge of any “court of record” Statute: 13-4-104 Constitution: Art. VI, Sec. 23 applies to “a justice or judge of a court of record”
Idaho Court of Appeals Statute: 1-2404 Statute: 1-2404 N/A (although Art. V, Sec. 28 of the state constitution allows for mandatory judicial retirement age, state does not have one)
Indiana Tax Court Statute: 33-26-2 Statute: 33-26-2 N/A (although Art. VII, Sec. 11 of the state constitution allows for mandatory judicial retirement age, state does not have one for Tax Court)
Iowa Court of Appeals Statute: 46.14A Statute: 46.16 Statute: 602.1610
Kansas Court of Appeals Statute: 20-3002 Statute: 20-3006 Statute: 20-2608(a)
Massachusetts Appeals Court Constitution: Part II, Chapters II and III Constitution: Art. 1, Part 2, Ch. 3 Constitution: Art. 1, Part 2, Ch. 3
Mississippi Court of Appeals Statute: 9-4-5 Statute: 9-4-5 N/A: there is no mandatory retirement age
Oregon Court of Appeals Statute: 2.540 Statute: 2.540 Constitution Art. VII (Amended), Sec. 1a provides it can be no lower than 70. Statute 238.525 sets at 75.
Oklahoma Court of Civil Appeals Statute: 20 Okl. St. § 30.1 Statute: 20 Okl. St. § 30.15 N/A: there is no mandatory retirement age, although the Constitution Art. VII, Sec. 11 allows the legislature to set one
Tennessee Court of Appeals Statute: 17-4-109 Statute: 16-4-103 N/A: there is no mandatory retirement age
Tennessee Court of Criminal Appeals Statute: 17-4-109 Statute: 16-5-103 N/A: there is no mandatory retirement age
Utah Court of Appeals Constitution: merit selection under Art. VII, Sec. 8 applies to any “court of record.” Constitution: 6-year term under Art. VII, Sec. 9 applies to any “court of record.” Statute: 49-18-701
Virginia Court of Appeals Constitution: Art. VI, Sec. 7 applies to judges of all courts of record Constitution: Art. VI, Sec. 7 applies to judges of all courts of record Statute: 51.1-305
Washington Court of Appeals Statute: 2.06.070 Statute: 2.06.070 Statute: 2.06.100