Oklahoma: Fast track to ending merit selection in state?

It was not just Kansas acting to end merit selection last week. Oklahoma’s Senate Judiciary Committee approved SJR 36 fo 2011, which would end the state’s judicial nominating commission for appellate courts and allow the state’s governor to appoint any qualified person subject to  senate confirmation (additional coverage here, h/t Gavel Grab). As introduced, the judges so appointed would still be subject to retention election rather than re-confirmation or a contested election.

Today, the House Rules Committee announced it would take up its version (HJR 1009) March 2, possibly an indication the bill will bypass the subject matter jurisdiction committee (House Judiciary) altogether. Whereas the Senate version simply does away with any role for the state’s judicial nominating commission (JNC), the House version maintains the commission but makes their selections in effect, advisory. The governor “may appoint a person who is not one of the nominees to fill the vacancy.” Moreover, the House version retains a provision allowing the state’s chief justice to make the selection if the governor fails to do so for 60 days (the senate version jettisons this). Regardless of who picks, the individual chosen would be subject to senate confirmation and later retention elections.

This quick action may seem like a fast track, but it has been several years in building. 3 years ago SJR 36 of 2008 as introduced read very similar to SJR 36 of 2011, eliminating the judicial nominating commission outright and putting in place senate confirmation.  The House, however, heavily modified the bill. Their version would have kept the judicial nominating commission for the appellate courts and required vacancies (due to death, resignation, etc.) in the state’s trial and worker’s compensation court be subject to senate confirmation. Moreover, the House version read “Any appointment by the Governor to fill a Judicial Office shall be confirmed by a majority of the Senate.” (emphasis added) However, as noted above if the governor failed to make a nomination within 60 days, the chief justice would make the appointment and, as written in the House amendment, without the need for senate confirmation.  It is unclear if this was a glitch in drafting or by design. Regardless, the Senate rejected the House amendment and while a conference committee was appointed, time ran out before they could reach a compromise.

In 2009 it came back as HJR 1041. As introduced, it read almost exactly like SJR 36 the year before (senate confirmation for all judicial vacancies). What passed, however, was pared down again by the House to just senate confirmation for worker’s compensation court judges only (in OK, the worker’s compensation court is a court within the judiciary, not an executive branch agency).

HJR 1041 of 2009 was adopted and all ready to go for the 2010 ballot. It was withdrawn from the ballot in favor of  HJR 1041 of 2010. That bill (which became State Question 752) let the Speaker of the House and President of the Senate add 1 member to the JNC and put in a provision that non-attorney members of the JNC  could not have attorneys in their family. That was approved on the November 2010 ballot.

This created a problem: what to do with the JNC members in non-attorney designated seats who had lawyers in their family? In mid-February the state’s supreme court ruled they could stay.

Utah House moves bills to keep state’s retention elections and modify state’s judicial performance evaluation system

Last week I noted the Kansas House had voted to end merit selection for the state’s Court of Appeals. This week’s changes are in Utah, where today that state’s House rejected efforts to delay the transition of the state’s justice courts to retention elections. HB 392 as introduced, would have delayed the use of judicial retention elections for justice court judges until the 2018 general election. Under current law, such retention elections will go into effect upon the expiration of a justice court judge’s current term of office. Moreover, justice court judges would have been subject to the state’s judicial performance evaluation program starting in 2014.

As amended, however, HB 392 (Substitute) allows justice court judges to be evaluated for the 2012, 2014, and 2016 retention elections under two different standards.

  • Justice court judges who are employed part-time on July 1, 2012 are to be evaluated by the criteria established before the Judicial Performance Evaluation Commission was established
  • Justice court judges who are employed full-time on July 1, 2012 are to be evaluated by the criteria established when the Judicial Performance Evaluation Commission was created in 2008

HB 392 (Substitute) was approved on a 69-0 earlier today.

Also today the House Judicial Committee approved, SB 212 (Substitute). It passed the Senate last week on a 25-0 vote and was approved by the House committee today on a 10-0 vote.

In its present form, the bill

  • allows the Judicial Performance Evaluation Commission to vote in a closed meeting on whether or not to recommend that the voters retain a judge
  • requires that any record of an individual commissioner’s vote be a protected record not subject to public inspection under the state’s Government Records Access and Management Act
  • removes litigants from the judicial performance evaluation survey
  • allows survey respondents to supplement responses to survey questions with written comments;
  • establishes that the judicial performance evaluation survey is to be reported in three categories: legal ability, judicial temperament and integrity, and administrative abilities
  • establishes a clear minimum performance standard of at least 65% in each survey category
  • allows only a judge who is the subject of an unfavorable retention recommendation to meet with the commission about its recommendation
  • allows the judicial performance evaluation commission to only report public discipline that a judge has received

Additionally, the bill changes the four survey “topics” into  three “categories” through the merger of judicial temperament and integrity and, as noted above, requires a 65% rating or better in each category (the existing standard is an average score of at least a 3.0 [on a 5 point scale] on at least 80% of the questions).

Proposed survey “categories”

legal ability

  1. demonstration of understanding of the substantive law and any relevant rules of procedure and evidence;
  2. attentiveness to factual and legal issues before the court
  3. adherence to precedent and ability to clearly explain departures from precedent
  4. grasp of the practical impact on the parties of the judge’s rulings, including the
  5. effect of delay and increased litigation expense
  6. (new) ability to write clear judicial opinions
  7. (new) ability to clearly explain the legal basis for judicial opinions

judicial temperament and integrity

  1. demonstration of courtesy toward attorneys, court staff, and others in the judge’s court; maintenance of decorum in the courtroom
  2. demonstration of judicial demeanor and personal attributes that promote public trust and confidence in the judicial system
  3. preparedness for oral argument
  4. avoidance of impropriety or the appearance of impropriety
  5. display of fairness and impartiality toward all parties
  6. (modified language) ability to clearly communicate, including the ability to explain the basis for written rulings, court procedures, and decisions

administrative performance

  1. management of workload
  2. sharing proportionally the workload within the court or district
  3. issuance of opinions and orders without unnecessary delay

Citing Heller, Illinois legislators consider explicitly permitting judges to carry concealed firearms into courthouses

The U.S. Supreme Court decision in District of Columbia v. Heller, which specifically found an individual right to keep and bear arms, has lead to a massive review of state statutes as they pertain to firearms. Illinois is no exception: it was the case of McDonald v. Chicago that applied Heller to the states via the 14th Amendment. For judges on a more personal level, however, Heller and McDonald may mean more discretion in carrying their own firearms into their courts.

At present, Illinois law and rules of court are relatively silent on whether judges explicitly may (or may not) bring firearms into courthouses or courtroom. The only apparently relevant statute is 720 ILCS 5/24-1. Sections (a) and (b) define the offense of unlawful use of weapons and provide for sentences depending on the particular actions. (a)(4)-(9) in particular deal with the carrying of firearms.

Section 720 ILCS 5/24-1(c) however provides enhanced sentences for carrying a firearm in public places, such as parks and courthouses (defined as “any building that is used by the Circuit, Appellate, or Supreme Court of this State for the conduct of official business.”). Illinois, unlike most states, does not provide elsewhere that such courthouse restrictions do not apply to judges.

HB 1403 and SB 2150, however, would modify the restrictions. Concealed firearms permits would not allow a person to carry into “Any courthouse solely occupied by the Circuit, Appellate, or Supreme Court or a courtroom of any of those courts, or court proceeding.” However “nothing in this Section shall preclude a judge, or State’s Attorney holding a concealed firearms permit, from carrying a concealed firearm within a courthouse.” (emphasis added)

Surrounding states take slightly different tacks with respect to courthouse carrying.

Missouri (§ 571.107 R.S.Mo.) bans firearms generally (and in the same section specifically exempts judges from the ban) in “Any courthouse solely occupied by the circuit, appellate or supreme court, or any courtrooms, administrative offices, libraries or other rooms of any such court whether or not such court solely occupies the building in question…The.. supreme court… may by rule..prohibit or limit the carrying of concealed firearms by endorsement holders in that portion of a building owned, leased or controlled by that unit of government.”

Kentucky’s (KRS § 237.110) has a similar clause banning generally the carrying of a firearm  in “Any courthouse, solely occupied by the Court of Justice courtroom, or court proceeding.” but then (KRS § 237.020) exempts active, retired, and senior status justices and judges with a handgun permit. In fact, Kentucky active, retired, and senior staus judges with a permit may carry “at all times and at all locations within the Commonwealth of Kentucky” exception detention facilities, which specifically “does not include courtrooms, facilities, or other premises used by the Court of Justice or administered by the Administrative Office of the Courts.”

Illinois HB 1403 is in the House Agriculture & Conservation Committee while SB 2150 is currently in the Senate Assignments Committee awaiting designation to a subject matter committee.

Kansas: House votes to end merit selection for Court of Appeals

Unlike most state supreme courts, whose selection methods are typically placed into the state constitution, intermediate appellate courts (such as the Kansas Court of Appeals) are creations of statute, including their selection method.

After several attempts to push for constitutional amendments to alter the state’s Supreme Court merit selection system failed, opponents of the selection system instead focused on the state’s Court of Appeals, resulting in passage in the House today of HB 2101 on a 66-53 vote. Under the bill, instead of a judicial nominating commission selecting three names to forward to the governor for selection, the governor would be free to chose anyone otherwise meeting the basic eligibility (such as 10 years practice in law) subject to senate confirmation.

In the original version of the bill, the person confirmed would serve for life, however Article 15 of the state constitution prohibits terms of more than four years unless the constitution itself sets another term (for example, the same constitution gives the supreme court six year terms). As a result, the bill was amended to put retention elections back in.

Initial reports indicate the 66-53 was bipartisan with 48 Republicans joining 18 Democrats to approve the bill and 20 Republicans voting in opposition along with 33 Democrats.

Georgia House (again) considers “informing” Chief Justice Georgia is not a “democracy”

Last year in her first state of the judiciary address, Chief Justice Carol Hunstein referred to Georgia as a “democracy”. As I noted at the time, this did not sit well with some members of the Georgia House, who prepared a resolution to “inform” the Chief Justice the state was a republic, not a democracy (see post here). The resolution went nowhere, legislatively speaking.

Undaunted, Chief Justice Hunstein gave her 2011 state of the judiciary and made use of the term “democracy” five times (see post here). Equally undaunted, the Georgia House is considering “informing” her via HR 340 of 2011.

WHEREAS, most synonymous with majority rule, democracy was condemned by the Founding Fathers of the United States, who closely studied the history of both democracies and republics before drafting the Declaration of Independence and the Constitution…

WHEREAS, in 1928, the War Department of the United States defined democracy in Training Manual No. 2000-25 as a “government of the masses” which “[r]esults in mobocracy,” communistic attitudes to property rights, “demagogism,…agitation, discontent,  [and] anarchy.”

NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that the members of this body recognize the difference between a democracy and a republic and inform Georgia Supreme Court Chief Justice Carol W. Hunstein that the State of Georgia is a republic and not a democracy.

BE IT FURTHER RESOLVED that the Clerk of the House of Representatives is authorized and directed to transmit appropriate copies of this resolution to Georgia Supreme Court Chief  Justice Carol W. Hunstein, all Justices of the Georgia Supreme Court, and all Judges of the Georgia Court of Appeals.

Presumably the decision to forward the resolution (if adopted) to the justices of the supreme court and court of appeals is because they were invited to attend the state of the judiciary address (HR 19 of 2011) and heard the reference to “democracy.”

The resolution is currently pending in the House Committee on the Judiciary.