New Jersey: latest in 15+ year effort to require state supreme court justices be subject to retention elections; legislative reaction & disagreement with high court’s rulings

News reports indicate that at least two members of the New Jersey Senate plan to introduced a constitutional amendment to require New Jersey supreme court justices face voters in yes/no retention elections. This plan is the latest in a 15-year pattern of similar efforts filed in the legislature after the state’s supreme court apparently in response to rulings issued by the supreme court regarding affordable housing requirements and education spending (the Abbott cases).

Under the current NJ constitution, Superior Court judges and Supreme Court justices are subject to a 3-step process:

  1. Initial nomination by the Governor and confirmation by the Senate.
  2. After 7-years of service, renomination by the Governor and reconfirmation by the Senate
  3. If renominated and reconfirmed, serve until mandatory retirement age (70).

The plan, as reported in local media, would be to replace renomination and reconfirmation with a yes/no retention vote after 4 years in office. (h/t Malia Reddick with IAALS)

This marks the latest in an over decade-long effort to change the way judges in New Jersey are picked, many focused on forcing justices and judges to run in elections. While dozens of constitutional amendments have been proposed, none appear to have gotten as far as the committee hearing stage.

Details below the fold.

Continue reading New Jersey: latest in 15+ year effort to require state supreme court justices be subject to retention elections; legislative reaction & disagreement with high court’s rulings

Texas: House and Senate approve plan to end straight ticket voting for judicial & other races, but lawsuits planned

When Texas’ chief justice in his State of the Judiciary address brought up the issue of ending straight ticket voting (STV) for judicial races I wondered what that legislation might look like. Would it end STV for judicial races only? Some judicial races?

The answer now appears to be all races, judicial included. HB 25, as amended and soon to be sent to the governor, ends STV for all elected offices.

News reports indicate that if enacted, the law would almost certainly face a lawsuit under the Voting Rights Act, with opponents citing to a 2016 federal court ruling that stopped Michigan’s end to STV (Michigan judges run in nonpartisan general election contests and therefore were not under STV at any rate, as can be seen in this example from 2014).

 

Alaska: bill allows legislature to declare judicial decisions impeachable “malfeasance”, removes judicial review; similar to 2016 Kansas Senate effort

A plan to allow for the impeachment of Alaska’s judges for their decisions has been filed in that state’s House in a move almost identical to one put forth in the Kansas Senate last year.

The Alaska Constitution provides that “all civil officers” are subject to impeachment, but fails to specify the reasons for impeachment such as high crimes, misdemeanors, malfeasance, etc.

All civil officers of the State are subject to impeachment by the legislature. Impeachment shall originate in the senate and must be approved by a two-thirds vote of its members. The motion for impeachment shall list fully the basis for the proceeding. Trial on impeachment shall be conducted by the house of representatives.

Existing statutes define the reasons for impeachment of judges as “malfeasance or misfeasance in the performance of official duties.” (A.S. 22.05.120 for the Supreme Court; A.S. 22.07.075 for the Court of Appeals; A.S. 22.10.170 for the Superior Court).

HB 251 would amend the definition of “malfeasance” to include “exercising legislative power.” Moreover, HB 251 would prohibit any judicial review of the state legislature’s actions in this area (“the legislature’s judgment under this section is not subject to judicial review.”)

That language is similar to Kansas’ SB 439 of 2016 as amended, that provided Kansas judges, or more specifically those chosen via the state’s merit/commission system, would be subject to impeachment for “attempting to usurp the power of the legislative…branch of government.” That bill was approved 21-19 but never taken up in the House.

HB 251 has been filed in the House Community & Regional Affairs Committee.

A moment of levity: the error page for the Massachusetts General Court’s website – “Oh My Cod!”

Part of Gavel to Gavel is searching and using the legislative bill tracking pages/systems for each state legislature. I recently came across this as the error page for the Massachusetts legislature.

 

Texas: House approves 133-2 constitutional amendment to alter qualifications for judicial office; efforts to extend terms and give legislature power to set additional qualifications stricken

Last week the Texas House overwhelmingly approved a constitutional amendment to change the qualifications for the state’s top courts.

Under HJR 10 of 2017 as amended and approved by the House:

Appellate Courts: HJR 10 requires

  • 10 years of service as a judge of a state court or county court created by the Legislature (previously “court of record”) or
  • 10 years as a practicing lawyer licensed in Texas.
  • Some combination of the above adding up to 10 years.
  • During the 10-year span(s), the person’s license to practice law cannot have been revoked, suspended, or subject to a probated suspension.

There was a requirement that the 10 years of service be “consecutive”, however that was amended out on the House floor.

Although addressing only the Supreme Court, other provisions in the state’s constitution provide that judges and chief/presiding judges of the Court of Criminal Appeals (Art. V, Sec. 4) and the Court of Appeals must have the “same qualifications” as their Supreme Court counterparts (Art. V, Sec. 6).

District Court:

  • 6 years (up from 4 years) of service as a judge of a court in the state or
  • 6 years (up from 4 years) as a practicing lawyer licensed in Texas.
  • Some combination of the above adding up to 6 years (up from 4 years).
  • During the 6-year span(s), the person’s license to practice law cannot have been revoked, suspended, or subject to a probated suspension.

New Legislative Power to Add Qualifications: The plan as approved by the House Judiciary & Civil Jurisprudence Committee provided the Legislature could by general law require additional qualifications to be eligible to serve as an appellate or District Court judge. Oklahoma has a similar provision in their constitution, discussed here. A floor amendment to HJR 10 removed that provision from the bill.

Increase in Terms: HJR 10 as introduced would also have extended the terms for the courts, with the appellate courts going from 6 years to 8 years and the District Courts from 4 years to 6 years. Those provisions were removed in committee.

 

Pennsylvania: House Judiciary Committee approves merit/commission selection for appellate courts with Senate confirmation; con amendment would have to go on a general election ballot

A plan to change the way Pennsylvania’s appellate judges are picked has cleared the House Judiciary Committee, with amendments, earlier this week.

HB 111 of 2017 would amend the state’s constitution to create a merit selection/commission based process.

An Appellate Court Nominating Commission would be created made up of 13 members (8 bar members, 5 non-bar members)

  • 5 appointed by the Governor (4 bar members, 1 non-bar)
  • 2 appointed by the Senate Majority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the Senate Minority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the House Majority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the Senate Minority Leader (1 bar members, 1 non-bar)

The composition of the Commission has been a source of debate for prior iterations of this bill introduced over the last decade and discussed here.

When a vacancy occurs on an appellate court the Commission would submit to the Governor a list of “five of the most qualified individuals”; the Commission would be required in making that list to consider the geographic, racial, ethnic, gender and other diversity of the state. Nominees would also be required to have at least 10 years of legal experience.

The Governor would select from among the list of five names a nominee who would then be subject to Senate confirmation. Under the bill as introduced the Senate would have to give 2/3rds approval; that was amended in committee down to a simple majority.

If the Senate failed to confirm or reject a nominee within a set number of days the person would be automatically confirmed (“the nominee shall take office as if the appointment had been consented to by the Senate.”)

After Senate confirmation, the judge would have an initial term of four years before standing for a yes/no retention election for a full 10 year term.

In addition to amending the Senate confirmation down from 2/3rds to a simple majority, the committee made another key amendment: if HB 111 goes to the voters it must appear on a General Election ballot and not a primary or municipal (spring) ballot.

HB 111 now goes to the full House. If approved by the House and the full Senate, it would have to be re-approved by the 2019/2020 legislature before going to voters.

Pennsylvania: bill making it a misdemeanor to audio/video record in or near a courtroom without judge’s permission clears committee unanimously

A bill that would make it a crime to make an audio or video recording in or around Pennsylvania courtrooms without a judge’s permission has cleared the House Judiciary Committee on a 26-1 vote.

Under HB 149

A person commits a misdemeanor of the second degree if the person in any manner and for any purpose uses or operates a device to capture, record, transmit or broadcast a photograph, video, motion picture or audio of a proceeding or person within a hearing room, courtroom or the environs of a hearing room or courtroom without the approval of the court or presiding judicial officer or except as provided by rules of court…”environs” means the area immediately surrounding any entrance or exit.

The lead proponent notes that existing witness intimidation laws don’t cover such courtroom or near-courtroom recordings.

The 2015/2016 version of the bill (HB 1682) pass the House unanimously with a 200-0 vote, but the Senate never took it up.

HB 149 has been sent to the full House.