A look at the winners in last night’s election may help in predicting what will come out of the 2015 legislative sessions
Alabama Amendment 1 bans state courts from using international or foreign law. This is the 10th such ban in states, however the total number of efforts and their advancement in committee in the 2013 and 2014 sessions have diminished. It is unclear even if any similar bans are introduced whether they’ll make it out of committee in 2015.
Alabama Shelby County Local Amendment 1 requires the Judge of the Probate Court for the county must be an attorney. While similar bills have been proposed to require particular counties or all the judges in a state be attorneys (most states allow for at least some non-attorney judges) they often come to the problem that in many more rural counties there simply aren’t enough attorneys in the county to allow for such a requirement to work.
Arkansas Issue 3 provides (among other things) for the creation of salary commission to determine judicial and other salaries in the state. This commission stands alone among all others in the nation in that its determinations are not only binding (i.e. there is no need for additional legislative approval) they are unable to be overridden by the legislature as well. When similar proposals were introduced in Connecticut and New York, the legislatures balked at giving complete control over elected officials salaries without the legislature itself somehow being involved in either implementation/appropriation or even simply allowing them to override.
Hawaii Amendment 1 requires the state’s judicial selection commission release the names submitted to the governor or chief justice (for District Court seats) for selection to judicial office. Of the 18 states with such systems, now only 3 keep those names a secret after submission: Connecticut, South Dakota, and Vermont. It is unclear whether there will be any effort in these three states to move in Hawaii’s direction.
Nevada Question 1 authorizes the creation of intermediate appellate court (court of appeals). The implementing legislation has already previously been approved so the court will come into existence come January 1, 2015. The focus now turns to the 9 states without an intermediate appellate court, in particular West Virginia whose legislature has debated the creation of such a court for the better part of two decades.
New Mexico Amendment 3 now allows the legislature to set the deadline for judges to file paperwork seeking reelection as something other than the date for primary candidates. As I noted, New Mexico was the only state that required judges seeking retention to file so long prior to the date of election. Since this doesn’t apply to any other state, it isn’t clear this will have any impact in 2015.
Oregon Measure 87 now allows state judges to teach part time at public colleges/universities without running afoul of the state constitution’s no-dual-office or no-dual-salary provisions. Several other states have similar items, and there was a similar but not identical effort in Iowa several years ago (HB 2482 of 2010), but it isn’t clear if this approval will have an impact.
Tennessee Amendment 2 creates an appoint-confirm-retention election method for state’s appellate judges. This, coupled with a similar move away from merit selection/commission based appointments for the Kansas Court of Appeals in 2013 and pressure in other states to end these systems in favor of giving governors and legislators some/more/complete power with respect to judicial appointments is almost certain to reappear in the coming years.