Election 2014 losers: efforts to change or modify judicial retirement ages 1-for-8 in the last decade

Of the three losing ballot items affecting the courts last night, two were directly related to judicial retirement ages.

Hawaii: third rejection in 8 years

Hawaii Amendment 3, an effort to increase the mandatory judicial retirement age from 70 to 80, was defeated with only 22% of the yes vote, one of the most lopsided loses of any election last night. This is on top of losses in 2006 (eliminate the mandatory retirement age) and in 2012 (keep the mandatory retirement age, let chief justice call judges back for 3 months at a time) discussed and detailed here.

Louisiana: 1 for 3 in last two decades; only victory in an off year election

Louisiana Amendment 5 would have eliminated outright the state’s currently mandatory judicial retirement age (end of term in which a judge reaches 70). This is the third attempt to change the retirement age since 1995 when Amendment 2 of that year (increase age from 70 to 75) was defeated with only 38% of the vote. The next attempt at a change was in 2003. Rather than changing the retire-at-70 provision that had been in the state constitution, Amendment 15 of 2003 adopted the current practice of letting judges finish out the term in which they reach 70. That change was approved with 53.35 of the vote

Nationwide: Efforts to change or modify judicial retirement ages 1-for-8 in the last decade

Since 2004, there have been eight attempts to extend, modify, or alter the mandatory retirement ages for judges and, aside from Texas in 2007, they have all failed.

Details below the fold.

Continue reading Election 2014 losers: efforts to change or modify judicial retirement ages 1-for-8 in the last decade

Election 2014 winners and what they (could) mean for 2015 legislation

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.

Election 2014 Final Results: The winners and losers

The votes are in and the results from last night’s elections are below. Analysis of the results to follow later today.


  • Alabama Amendment 1 (72%): Prohibit state courts from using international or foreign law; prohibit state courts from giving full faith and credit to decisions from other states that reference international or foreign law
  • Alabama Shelby County Local Amendment 1 (79%): Judge of the Probate Court must be an attorney
  • Arkansas Issue 3 (53%): Creation of salary commission to determine judicial and other salaries
  • Hawaii Amendment 1 (82%): Require names submitted to governor for selection to judicial office be released
  • Nevada Question 1 (54%): Creation of intermediate appellate court (court of appeals)
  • New Mexico Amendment 3 (62%): Allow legislature to set deadline for judges to file paperwork seeking reelection
  • Oregon Measure 87 (57%) : Allow state judges to teach part time at public colleges/universities
  • Tennessee Amendment 2 (66%): Appoint-confirm-retention election method for state’s appellate judges


  • Florida Amendment 3 (48%): Allow governor to prospectively appoint judges to appellate courts — when the judge’s term is about to expire — before the vacancy occurs
  • Hawaii Amendment 3 (22%): Increase mandatory judicial retirement age from 70 to 80
  • Louisiana Amendment 5 (42%): Eliminate mandatory judicial retirement age

New Mexico Amendment 3: 17 out of 20 states that use retention elections have different filing deadlines for judges & others; few states put filing deadline for judges in state constitution

New Mexico voters in 1988 established the present electoral system for the highest courts in the state (supreme court, court of appeals, district, and metropolitan) that combines both merit/commission appointment AND partisan elections AND retention elections. (A subsequent amendment in 1994 set the threshold for retention at 57% “yes” votes).

That 1988 amendment included a provision that specified, in detail, when a judge seeking to be retained in office had to file the paperwork in order to do so.

The date for filing a declaration of candidacy for retention of office shall be the same as that for filing a declaration of candidacy in a primary election.

This direct linkage of the date to file for judicial retention as equal and the same as that for primaries is unique in New Mexico for two reasons.

  • First, of the 20 states that use some form of retention election, only 6 (New Mexico, plus Arizona, California, Colorado, Pennsylvania and Wyoming) put the filing deadline into the state’s constitution.
  • Second, of those 20 states, only two have the same direct link between the primary filing deadline and the judicial retention deadline as in New Mexico, but in both cases there are special reasons for why.
    • Montana links the primary filing deadline with retention election deadline because of its unique hybrid system for the state’s supreme court. If an incumbent justice is challenged, the contest proceeds as any other contested election. If the incumbent justice is the lone filer (i.e. uncontested), he or she nevertheless must face a yes/no retention election in November.
    • Tennessee’s retention elections occur on what amounts to primary day therefore the deadlines are linked for that reason. For example this year the retention race took place on August 5.

Details below the fold.

Continue reading New Mexico Amendment 3: 17 out of 20 states that use retention elections have different filing deadlines for judges & others; few states put filing deadline for judges in state constitution

Oregon Measure 87: why a 1979 Oregon Supreme Court case on judges as part time teachers is on the 2014 ballot

Most state constitutions provide for one of two types of prohibition on judges activities outside of their judgeship:

  1. a prohibition on holding more than one governmental office (dual-office holding)
  2. a prohibition on getting any other salary, whether from federal/state/local government or the private sector, regardless of whether they hold an “office”. (dual-salary)

The first issue in Oregon’s Measure 87 are provisions of the state’s constitution that contend with both dual-office holding and dual-salary. Specifically, judges are presently prohibited from service in the National Guard, but may serve in the state militia (for free) and as post masters (if paid no more than $100). (Art. XV, Sec. 8)

No person holding a lucrative office, or appointment under the United States, or under this State, shall be eligible to a seat in the Legislative Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constition [sic] expressly permitted; Provided, that Officers in the Militia, to which there is attached no annual salary, and the Office of Post Master, where the compensation does not exceed One Hundred Dollars per annum, shall not be deemed lucrative.

Also at play is a 1979 decision by the Oregon Supreme Court case of In re Sawyer (286 Ore. 369) that a judge who was regularly employed as a part-time teacher for pay by a state-funded college violated the state constitution’s separation of powers provision (Art. III, Sec. 1)

The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.

In that instance, a complaint by the Commission on Judicial Fitness alleged Circuit Judge Loren Sawyer was acting in contradiction to Art. III, Sec. 1 since the school he taught at (Southern Oregon College) was a state-supported school under the executive branch.

The Oregon Supreme Court had 20 years prior to Sawyer held a state legislator could not both serve as a legislator and teach at a public school under the executive branch under Art. III, Sec. 1 (Monaghan v. School District No. 1211 Ore. 360 (1959)). After Monaghan an initiative petition in fact amended the state constitution to allow for legislator-teachers (now Art. XV, Sec. 8).

The supreme court in Sawyer extended the reasoning in Monaghan to Judge Sawyer and all judges until the constitution was amended in a similar fashion. (“Article III, § 1 has not itself been amended, however, so as to permit judges to serve as teachers.”) For the record, Judge Sawyer was given the option by the Supreme Court to either stop teaching or be suspended for his judgeship. Indications are he opted to stop the teaching and he continued to serve as a judge for decades thereafter.

A provision of Measure 87 would address both the judges-in-the-National-Guard question as well as judges-as-public-school-teachers question posed in Sawyer 35 years ago.

A person serving as a judge of any court of this state may be employed by the Oregon National Guard for the purpose of performing military service or may be employed by any public university as defined by law for the purpose of teaching, and the employment does not prevent the person from serving as a judge.

The only other state to carve out such a specific judges-may-teach exception is California. In 1988 voters approved Prop 94, allowing for part-time teaching judges (“except a judge of a court of record may accept a part-time teaching position that is outside the normal hours of his or her judicial position”.) That too was the result of a court decisions in the state (see description at page 64 here) that made a judge’s part-time teaching at a private college/university acceptable but teaching at a public school a constitutional violation.

Dual-office and dual-salary provisions for judges from all 50 states can be found below the fold.

Continue reading Oregon Measure 87: why a 1979 Oregon Supreme Court case on judges as part time teachers is on the 2014 ballot