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  • During the 10-year span(s), the person’s license to practice law cannot have been revoked, suspended, or subject to a probated suspension.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  • During the 6-year span(s), the person’s license to practice law cannot have been revoked, suspended, or subject to a probated suspension.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.

 

Michigan: repeal of mandatory judicial retirement age advances out of House committee; would allow judges older than 70 to run for or be appointed to judicial office

Michigan’s mandatory retirement age is something of a misnomer. A judge who reaches the age of 70 isn’t forced to retire that day, month, year, or even term, they just aren’t allowed to run for or be appointed to judicial office again. Or, as the state’s constitution puts it

No person shall be elected or appointed to a judicial office after reaching the age of 70 years.

Under HJR G of 2017, however, that restriction would be repealed. The repeal plan advanced out of the House Judiciary Committee on April 25.

HJR G is just the latest attempt to bring forth such a repeal.

  • HJR S and SJR J of 2015/2016 House: Died in committee. Senate: Approved by Senate Judiciary Committee. Died on Senate floor.
  • SJR F of 2013/2014 Approved by Senate Judiciary Committee. Died on Senate floor.
  • SJR U of 2011/2012 Approved by Senate Judiciary Committee. Died on Senate floor.
  • HJR FF of 2007/2008 Filed, never taken up.

 

Rhode Island: House committee holds hearing on bills that would guarantee certain trial court judgeships & 3 seats on Judicial Nominating Commission to “persons of color”

A hearing was held earlier this week on a series of bills filed to address diversity in the Rhode Island judiciary. Video of the hearing before the House Judiciary Committee is here, starts at around 38:15 and ends at around 44:00. During testimony the author of the bills asserted that of Rhode Island’s 85 judges, only 4 were “of color” and that the Judicial Nominating Commission had demonstrated bias in the past against persons of color.

The bills were

HB 5301 requires the judicial selection commission actively and aggressively solicit members of color to apply for judicial appointments, including practicing members of the Rhode Island Bar residing in border states.

HB 5302 provides any trial court seat currently filled by a “person of color” can only be filled in the future by another “person of color.”

HB 5303 would guarantee at least one-third of the seats on the 9-member Judicial Nominating Commission go to “persons of color” and require the governor to make the corresponding appointments.

The House Judiciary committee recommended the measures be held for further study.

Florida: House votes to send term limits for appellate courts to voters by 1 vote; constitutional amendment now goes to Senate

A plan to impose term limits on Florida appellate judges narrowly passed the House earlier today. HJR 1 needed 60% (72 votes) to advance, it got only 73 votes vs. 46 no votes. By comparison, the 2016 version (HJR 197) cleared with 76 yes votes.

HJR 1 as approved by the House limits appellate judges (Supreme Court and District Courts of Appeal) to 12 consecutive years in office and prohibits them from being reappointed for 1 year after leaving office. It is specifically not retroactive and does not count any prior years of service on a court against a judge (“time served by the justice or district court judge in that office prior to January 9, 2019, shall not be included in the calculation of the total number of consecutive years served in that office.”)

The constitutional amendment now goes to the Senate.

Florida House votes tomorrow on term limits for appellate judges, over a dozen floor amendments filed by same representative who tried to create a “Scalia rule” in 2016

A plan to impose term limits on Florida’s appellate judges is set for a full House vote tomorrow and one House member has introduced over a dozen amendments to the bill.

HJR 1 as filed limits appellate judges (Supreme Court and District Courts of Appeal) to 12 consecutive years in office and prohibits them from being reappointed for 1 year after leaving office. It is specifically not retroactive and does not count any prior years of service on a court against a judge (“time served by the justice or district court judge in that office prior to January 9, 2019, shall not be included in the calculation of the total number of consecutive years served in that office.”)

A series of floor amendments, however, have been filed for consideration as part of the vote. All these amendments were offered up by the same Representative who tried to amend a “Scalia rule” into the 2016 version of appellate term limits. The “Scalia rule” would have prohibited Florida governors from appointing members of the Florida Supreme Court in their last year in office.

  1. Amendment 769097 puts a 12-consecutive-years limit on appellate judges and ends the state’s merit/commission system of selection, replacing it with governor-appointment with the judge requiring a 2/3rds majority of the House and Senate to be confirmed.
  2. Amendment 240027 puts a 28-consecutive-years limit for both appellate courts (supreme and district court of appeal).
  3. Amendment 115709 puts a 24-consecutive-years limit for both appellate courts.
  4. Amendment 203245 puts a 20-consecutive-years limit for both appellate courts.
  5. Amendment 368361 puts a 16-consecutive-years limit for both appellate courts.
  6. Amendment 924205 puts a 12-consecutive-years limit for both appellate courts.
  7. Amendment 439969 puts a 24-consecutive-years limit for district court of appeal judges only.
  8. Amendment 221391 puts a 20-consecutive-years limit for district court of appeal judges only.
  9. Amendment 961487 puts a 16-consecutive-years limit for district court of appeal judges only.
  10. Amendment 221391 puts an 8-consecutive-years limit for district court of appeal judges only.
  11. Amendment 501941 puts a 12-consecutive-years limit for both appellate courts and provides that judges of the court(s) may not represent a client before the court on which they served for 6 years after leaving the court.
  12. Amendment 728183 puts a 12-consecutive-years limit for both appellate courts and provides that judges of the court(s) must disclose how much they were paid by clients to appear before the courts on which they served.
  13. Amendment 760147 puts a 12-consecutive-years limit for both appellate courts and provides that judges of the court(s) may not represent a client before any Florida state court for 2 years after leaving the court.

 

Oklahoma: Senate approves 37-3 bill to require all District Court nominees have tried at least 3 jury trials; no other state has such a provision

A plan (discussed here) to require nominees for Oklahoma’s main trial court (District) have jury trial experience has cleared the Senate.

Many, but not all, states require their judges be “attorneys” or in some cases “practicing attorneys”. And the Oklahoma constitution already requires “a minimum of four years’ experience as a licensed practicing attorney” or service as a judge of some other court of record before taking to the District Court bench. The same constitutional provision also allows the legislature to add to these criteria (“and shall have such additional qualifications as may be prescribed by statute.”)

Under SB 708 of 2017 those “additional qualifications” would now include “experience as lead counsel in a minimum of three (3) jury trials brought to verdict prior to filing for such office or appointment.” No other state has such a trial-experience provision.

SB 708 having passed the Senate 37-3 on March 21 has been sent to the House.

Washington: modified version of 2015 bill to create Tax Court refiled, this time with a constitutional amendment

A 2015 plan to create a Tax Court in Washington (discussed here) composed of sitting Court of Appeals judges was hobbled with concerns that the state’s constitution didn’t give the legislature the power to create such a court. Now the 2017 version of the plan is back, this time with a constitutional amendment and some changes.

SJR 8209 amends the state’s judiciary article to authorize the creation of a Tax Court and spells out in general its jurisdiction. It provides that decisions of the Tax Court would go directly to the state supreme court. Finally, it provides that the number, election, terms, and compensation of Tax Court judges would be left to the legislature.

SB 5866 fleshes out SJR 8209’s provisions and appears to be similar to the 2015 plan. It abolishes the existing State Board of Tax Appeals in favor of the new Tax Court.

The Court would be made up of two “departments”.

  • The Main Department would consist of 3 judges who may individually or as a panel hear tax appeals. All decisions of the Main Department would have to be rendered within 6 months of submission, although the court could extend this for good cause an additional 3 months.

Unlike the 2015 plan, which called for using Court of Appeals judges, the 2017 plan would have the 3 judges elected to the Court in their own right to 6 year terms. It appears the judges would be elected by Court of Appeals district.

The judges would have to have “at least five years’ experience as an attorney practicing in Washington state and local tax law.” A similar provision created some controversy in 2015 when it was questioned who would determine whether a person met this requirement.

  • The Commissioner Department would be for “cost-effective and informal” reviews and would include a voluntary mediation system. Commissioners would be appointed by the judges of the Main Department.

A hearing on the implementing legislation (SB 5866) is set for tomorrow (March 14) in the Senate Law & Justice Committee. A hearing on both the bill and constitutional amendment are set for March 16.