Election 2016: Results and Implications for State Courts

Time to review the 4 ballot items from last night I was focused in terms of affecting the courts.

Mandatory judicial retirement ages

Oregon’s attempt to repeal that state’s mandatory judicial retirement age of 75 failed with only a 37% yes vote. That number is consistent with other states that attempted to raise or remove their ages. Those efforts only received, at best, 40% (New York 2013) and at worst 22% (Hawaii in 2014).

The other attempt was in Pennsylvania. There the proposal on the ballot would have set the mandatory judicial retirement age at 75 but pointedly did not include language that this was an increase from the current 70. The language, which appears to have been unique to Pennsylvania, resulted in the proposal squeaking to victory with 50.88%.

As I’ve noted, this issue is not going away as more and more states look to put in such increases or repeals. The trend remains, however, one in which legislators are persuaded to put the items on the ballots, but voters when confronted with language related to increases or repeals are inclined to reject such efforts.

Judicial Disciplinary Commissions

The Georgia legislature’s attempt to take control over the membership of the Judicial Qualifications Commission was approved with 62% of the vote. This move comes after similar efforts in Tennessee approved in 2010 that give the legislature the power to name 6 out of 16 members of that state’s judicial disciplinary body (Board of Judicial Conduct).

That said, it is unclear whether legislators in other states will have an interest in changes such as those in Georgia and Tennessee, especially given that in 24 states changes to membership would require either a constitution amendment and in another 10 the membership is set by the judiciary, not the legislature.

Clerks of Court Terms

Arkansas’ amendment to increase the terms in office for county officials from 2 years to 4, including Clerks of the Circuit Court, was approved. This leaves only certain counties in North Dakota with clerks of general jurisdiction courts elected to 2-year terms. As such, last night’s vote to increase terms isn’t so much the start of a trend but the end (or near end) of one.

Bail Reform

One additional item not covered but that readers have shown an interest in that relates to the courts is New Mexico’s bail reform constitutional amendment (Amendment 1) that was approved with 87% of the vote. The plan allows judges to deny bail to defendants considered exceptionally dangerous and to grant  pretrial release to those who aren’t considered a threat but remain in jail because they can’t afford bail.

In light of increased interest in reforms to fees, fines, and bail practices in state courts, it is almost certain that some activity in this arena will take place in state legislatures, if not as a constitutional amendment then as legislation focused on pretrial release and risk assessment.

Election 2016: Both Pennsylvania and Oregon were late-adopters of mandatory judicial retirement ages

As I mentioned in prior posts on this subject, many states either came out of the Revolution (like New York’s 1777 constitution), or entered into the Union (like Hawaii when it was admitted into statehood), with mandatory judicial retirement ages.

The states considering revisions to their ages (Oregon and Pennsylvania) are actually in this respect very, very late adopters.

Pennsylvania (193 years)

Pennsylvania has had 5 state constitutions. Of these, only 1 adopted in 1968 and going into effect in 1969 made mention of mandatory judicial retirement ages.

The 1776 constitution made no mention of mandatory judicial retirement. Neither did the 1790 constitution nor the 1838 constitution nor the 1874 constitution.

It was not until 1968 and the adoption of Art. V, Sec. 16(b) that the mandatory age was put in as the result of concerns expressed by members of constitutional convention regarding judges aging into senility (See pages 199-200).

Justices, judges and justices of the peace shall be retired upon attaining the age of 70 years.

This has been effectively amended once since 1969. In 2001 voters approved Amendment 2, allowing for judges to serve out the year they turn 70. That proposal was approved by 67.5% of voters.

Justices, judges and justices of the peace shall be retired on the last day of the calendar year in which they attain the age of 70 years.

Oregon (103 years)

Oregon has had 1 constitution but, effectively, 2 Judiciary Articles. The first (now called Article VII (Original)) was adopted in 1857 and made no mention of a mandatory retirement age. A 1910 revision, called Article VII (Amended), also made no mention.

It wasn’t until 1960 that a mandatory judicial retirement age was worked into the state’s constitution as Article VII (Amended), Sec. 1a. It wasn’t as prescriptive as the Pennsylvania model, instead allowing the legislature to set an age from end-of-year-turns-70 to 75.

Notwithstanding the provisions of section 1, Article VII (Amended) of this Constitution, a judge of any court shall retire from judicial office at the end of the calendar year in which he attains the age of 75 years. The Legislative Assembly or the people may by law:

(1) Fix a lesser age for mandatory retirement not earlier than the end of the calendar year in which the judge attains the age of 70 years

Election 2016: 32 states impose some form of mandatory retirement age on most or all of their judges; voters may raise (PA) or repeal (OR) their ages

Two states will be voting next week on whether or not to change their mandatory judicial retirement ages. Pennsylvania voters will be deciding whether to raise their age from end-of-the-year-turn-70 to end-of-the-year-turn-75. Oregon is deciding on whether or not to simply repeal the provision in the state’s constitution allowing for a mandatory retirement age at all; the state currently requires retirement at 75.

Pennsylvania’s mandatory age of 70 is consistent with the practice in many other states. All told, some 32 states have a general mandatory judicial retirement age. At the appellate level, it is fairly straightforward: the majority of states (21) set 70 as the age, however some states allow a judge to serve out the term or the year in which they reach the threshold age.

At the trial court level, things become somewhat murkier. For example, in at least 8 states with mandatory retirement ages for higher courts (appellate, general jurisdiction trial) some or all of the state’s lower court judges are exempt. For example, in South Carolina appellate and trial judges generally must retire at age 72, but Probate and Municipal Judges have no specific mandatory retirement age. Georgia, on the other hand, has the opposite situation: there is no mandatory retirement age for their top courts but some Municipal Courts have imposed mandatory retirement ages on their judges.

The table below gives the general overview of retirement ages, detailed state by state analysis based on court type and other particulars below the fold.

Age # of States States
70 20 Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Dakota, Virginia, Wyoming
72 4 Colorado, Iowa, North Carolina, South Carolina
73 1 Virginia
74 1 District of Columbia, Texas
75 5 Indiana, Kansas, Oregon, Utah, Washington
90 1 Vermont
None 18 California, Delaware, Georgia, Idaho, Illinois*, Kentucky, Maine, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Rhode Island, Tennessee, West Virginia, Wisconsin

*Illinois statute struck down as unconstitutional but never formally repealed

Continue reading Election 2016: 32 states impose some form of mandatory retirement age on most or all of their judges; voters may raise (PA) or repeal (OR) their ages

Election 2016: Pennsylvania Amendment 1- What ballot language did other states use for their similar efforts to raise mandatory judicial retirement ages?

One of, if not the, biggest issue so far in Pennsylvania’s Amendment 1 has been the ballot language. In short, Amendment 1 would raise the mandatory judicial retirement age from end-of-year-turns-70 to end-of-year-turns-75. It was  to have been voted on in the spring (discussed here), however state legislators objected to the ballot language developed by the Secretary of State and had the item pulled (ballots were already printed, however, and many people did vote, but the votes didn’t count).

The original language was

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

After, the legislature came up with its own language and, after much state litigation, and baring federal litigation that is ongoing, that is the language that will appear before voters in 2 weeks. Opponents of the language argue that it is deceiving voters into thinking it creates a mandatory retirement age, rather than raising the exiting one.

The new language that will be on ballots this November reads

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?

Given the consistent losing track record of similar efforts in other states, it raised the question of what the language in those other states looked like.

Hawaii Amendment 3 of 2014: Increase mandatory retirement age from 70 to 80 (lost 22-73% (5% not voting on item))

Shall the mandatory retirement age for all state court justices and judges be increased from seventy to eighty years of age?

Louisiana Amendment 5 of 2014: Repeal mandatory retirement age (lost 42-58%)

Do you support an amendment to remove the constitutional requirement that a judge retire upon attaining the age of seventy or, if his seventieth birthday occurs during his term, that he retire upon completion of that term? (Amends Article V, Section 23)

New York Proposal 6 of 2013: Increase age from 70 to 80 (lost 40-60%) NOTE: In New York, the state’s court of last resort/highest court is called the Court of Appeals and the state’s main trial court the Supreme Court.

Increasing Age until which Certain State Judges Can Serve

The proposed amendment to the Constitution, amending sections 2 and 25 of article 6, would increase the maximum age until which certain state judges may serve as follows: (a) a Justice of the Supreme Court would be eligible for five additional two-year terms after the present retirement age of 70, instead of the three such terms currently authorized; and (b) a Judge of the Court of Appeals who reaches the age of 70 while in office would be permitted to remain in service on the Court for up to 10 years beyond the present retirement age of 70 in order to complete the term to which that Judge was appointed.

Shall the proposed amendment be approved?

Arizona Proposition 115 of 2012: Among other things, increase age from 70 to 75 (lost 27-73%)


A “yes” vote shall have the effect of (1) increasing the terms of Arizona Supreme Court justices, Appellate and Superior Court judges to eight years; (2) raising the retirement age for justices and judges from seventy to seventy-five; (3) changing membership of commissions on appellate and trial court appointments and procedures for appointing justices and judges; (4) requiring the Supreme, Appellate, and Superior courts to publish decisions online, (5) requiring the Supreme Court to send a copy of the judicial performance review of each justice and judge who is up for retention to the Legislature, and (6) allowing a joint legislative committee to meet and take testimony on justices and judges up for retention.

A “no” vote shall have the effect of keeping current constitutional law related to the courts.

Ohio Issue 1 of 2011: Increase age from 70 to 75, repeal defunct provisions of constitution (lost 38-62%)

This proposed amendment would:

1. Increase the maximum age for assuming elected or appointed judicial office from seventy to seventy-five.

2. Eliminate the General Assembly’s authority to establish courts of conciliation.

3. Eliminate the Governor’s authority to appoint members to a Supreme Court Commission.

Election 2016: Extended coverage on the 4 ballot items up for a vote this November – podcasts and videos and publications (oh my!)

I’ll be discussing the 4 ballot items on the ballot that affect the courts here on the blog, but I’ve recorded/published several items that readers might be interested in.

For fans of paper (or at least PDF) I wrote this for NCSC’s new Trends: Close Up publication.

I recorded this item for the newest NCSC video series call Court Buzz.

For those who like podcasts, I also did this podcast for NCSC’s other (relatively) new product/podcast series called Court Talk.

Election 2016: Arkansas Issue 1 – Most states elect their general jurisdiction court clerks and they typically serve 4-6 years

I mentioned in the last post on Arkansas Issue 1 that most states elect the clerks of their general jurisdiction courts. In all, a total of 32 states have elected clerks. In 27 states all the clerks are elected. In 4 others (Nevada, Missouri, New York, and Washington) most clerks are elected; in select counties/independent cities the clerk is chosen by the court. Finally 1 state (North Dakota) uses a mixed approach of election (13 counties), court-appointment (14 counties), and selection by the county commission (26 counties).

The remaining 18 states make use of appointment/hired clerks of court for their general jurisdiction courts. It should be noted, however, that some of these states started originally with elected clerks and/or switched from appointed to elected and back again. For example under Delaware’s 1897 Constitution the Prothonotary of each County was ex officio Clerk of the Superior Court and elected. That changed in 1989 when SB 109 was adopted by the state’s legislature (Delaware doesn’t require constitutional amendments to be approved by voters) making the position appointive.

The Superior Court shall appoint a Prothonotary in each county to hold office at the pleasure of the said Court.

All existing elected clerks were allowed to remain in office.

Of the states that have elected clerks, almost all have opted for 4 year terms, much like Issue 1 would do for Arkansas Circuit Clerks. Only 1 state (North Dakota) has a 2-year term for some elected clerks. 4 states (Alabama Circuit, Kentucky Circuit, Massachusetts Superior, and West Virginia Circuit) have 6 year terms.

Details below the fold.

Continue reading Election 2016: Arkansas Issue 1 – Most states elect their general jurisdiction court clerks and they typically serve 4-6 years

Election 2016: Arkansas Issue 1 – why does Arkansas elect Circuit Court Clerks anyway?

On the ballot this November in Arkansas is Issue 1, a constitutional amendment that would make several changes to the terms, election, and eligibility of elected officials. Among other things, it defines what is an “infamous crime” that would prohibit someone from holding elected office.

For court purposes, however, there is one key element: Clerks of the Circuit Court will see their terms in office extended from 2 years to 4 years.

The Arkansas Circuit Court is the court of general jurisdiction for the state and the Clerk of the Court is elected as a separate office that handles not only the records of that court but is also the county recorder of deeds and other instruments. Most states continue to elect their general jurisdiction clerks, as will be discussed in a future post.

The history of elected clerks of court is a rich one and reflective of the movement in the early 1800s towards “Jacksonian democracy.”  Prior to the Revolution, court clerks tended to be appointed either by the Crown or, in some instances, by the judges of the particular court. The U.S. Constitution, for example, hedged on this question in terms of the President, providing the President shall have the power to make appointments generally

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

And thus the clerks of the federal courts are appointed by the judges of their respective courts, starting with the Judiciary Act of 1787.

That the Supreme Court, and the district courts shall have power to appoint clerks for their respective courts, and that the clerk for each district court shall be clerk also of the circuit court in such district…

Many if not most state constitutions adopted in the immediate aftermath of the Revolution maintained a similar pattern of having the clerks of court appointed by the Governor or judges.

In the period from roughly 1828 to 1854, traditionally referred to as the period of “Jacksonian democracy”, there was a push to provide that all or almost all positions of government authority should be vested in elected officials, not in appointed “elites”. The result was that many offices which were appointive became elective and with short terms.

In the case of Arkansas, the state’s first constitution (1836) reflected this duality. The Clerk of the Chancery Court would be appointed by the chancellors of that court. However, the office of Clerk of the Circuit Court would be an elective one with only a 2 year term (Art. VI, Sec. 7)

The qualified voters of each county shall elect a clerk of the circuit court for their respective counties, who shall hold his office for the term of two years; and courts of chan­cery, if any be established, shall appoint their own clerks.

The Second or Secession Constitution (1861) kept similar language (Art. VI, Sec. 9) that was then adopted verbatim into the Third Constitution (1864) also as Art. VI, Sec. 9

and the qualified voters of each county, shall elect a clerk of the circuit court for their respective counties, who shall hold his office for the term of two years, and until his successor is elected and qualified-the first election of circuit clerks, under this constitution, to be held at the general election next before the expiration of the commissions of the present incumbents. Courts of chancery, when established, shall appoint their own clerks.

Interestingly, the Fourth Constitution (1868) makes no mention of Circuit Clerks or their selection. There are indications the office may have converted at this time to an appointive one as many offices were required to become appointive under Reconstruction; judges in the state who had been elected under the 1864 constitution were now in 1868 appointed by the Governor.

The fifth and current constitution (1874) one again provided for elected Circuit Clerks (Art. VII, Sec. 19) and even moved to make the clerk of the chancery court elected (Art. VII, Sec. 44). Chancery courts were eventually abolished and merged into the Circuit Courts (Amendment 80). It is this 1874 provision of “two years” that is subject to amendment this year.

The clerks of the circuit court shall be elected by the qualified electors of the several counties, for the term of two years…

The judge and clerk of said [Pulaski chancery court] shall hold office for the term of two years, and shall be elected by the qualified voters of the State…