The last several years have seen dozens of efforts to lift or raise mandatory retirement ages for judges. Minnesota’s SB 627 does so minimally. Currently judges must retire on the last day of the month they turn 70. This would extend the term to the last day of the “official year of the state in the first even-numbered year during which a judge has attained 70 years of age.”
While the verbiage of Section 1 of the bill is somewhat obtuse, the language of Section 2 is starkly clear: “Minnesota Statutes 2010, section 204B.36, subdivision 5 is repealed.” That section provides that “If a chief justice, associate justice, or judge is a candidate to succeed again, the word “incumbent” shall be printed after that judge’s name as a candidate.”
It is unclear why these two items (one dealing with judicial selection, the other judicial qualifications & terms) are in the same bill.
SB 627 is currently pending in the Senate Judiciary and Public Safety Committee.
It may sound relatively mundane, but in many states judges of various courts may only be sworn into office by specific office holders. The issue came to a head in Maryland recently. In November 2010, state voters approved a constitutional amendment requiring Orphan’s Court judges in Baltimore City be attorneys. At the same election, Baltimore City residents voted into office as an Orphan’s Court judge non-attorney Laudette Ramona Moore Baker. The state’s governor did not issue her a commission and the circuit clerk, who under existing Maryland law administers the oath personally or through a designated deputy, declined to swear her in.
Enter HB 410 of 2011, which would expand the list of those who could administer a judicial swearing in to include “any officer whose office is established in the Maryland Constitution”. The bill is set for a hearing on February 23 before the House Health and Government Operations Committee.
At the same time, Arkansas is also recodifying who gets to swear in judicial and other elected officials via SB 156. Current law provides Supreme Court, Court of Appeals, Circuit Court, and District Court judges have a choice of taking their oath before
- the Governor
- a Supreme Court Justice
- a Circuit Court Judge
- the clerk of the county court or
- the clerk of the circuit court.
SB 156 keeps these 5 but adds judges of the Court of Appeals to the list. SB 156 was approved by the full Senate February 14 and is currently pending in the House State Agencies and Government Affairs Committee where it had a hearing earlier today (February 16).
Several bills affecting the state courts are getting committee hearings today, (see update below) including:
Montana HB 332 (House Judiciary committee audio will be here) would permit jury nullification and require judges inform jurors they may judge both the facts and the law in the case> Judges would be required to provide jurors state and federal constitutions and any statute books they request. In criminal cases, the judge would be required to inform jurors they may vote their conscience to acquit an accused in spite of technical guilt. Finally, the bill defines “obstruction” of these provisions as reversible error.
Meanwhile, Indiana’s Senate Judiciary committee (live streaming video here) will be considering two bills of particular note. SB 212 would move the state closer to a restructured system of consolidated trial courts. It provides that all circuit courts, superior courts, and probate courts have: (1) original and concurrent jurisdiction in all civil cases and in all criminal cases; (2) de novo appellate jurisdiction of appeals from city and town courts; and (3) in Marion County, de novo appellate jurisdiction of appeals from township small claims courts. The bill would also repeal authorization for the establishment and operation of county courts (since January 1, 2009, no county court exists in Indiana.).Also up for debate is SB 463 which would repeal all provisions that establish a mandatory retirement age for superior court and county court judges.
Update 2/2/11 @ 8:44 Eastern: The massive snow storm affecting most of the country has shut down the Indiana Legislature Tuesday and Wednesday. According to the legislature’s website, Senate hearings may be conducted Thursday.
With ongoing efforts in Iowa to impeach the remaining 4 justices on the state’s supreme court (details here), a more administrative judicial struggle is winding its way back through the legislature
In 2010, SB 2343 was approve by the legislature. The bill had several elements, including:
- Filling vacancies – Grants authority to the chief justice to delay the nomination of a supreme court justice, court of appeals judge, district judge, district associate judge, associate juvenile judge, or associate probate judge magistrate for budgetary reasons up to one year. Grants authority to delay nomination for magistrates with certain limits.
- Terms – Specifies that a senior judge, upon attaining the age of 78, may serve a one-year term and a succeeding one-year term at the discretion of the supreme court. Currently, a senior judge, upon attaining the age of 78, may serve a two-year term at the discretion of the supreme court.
- Judicial allocation – Authorizes chief justice to apportion a trial judge vacancy to another judicial election district upon finding a substantial disparity exists in the allocation of judgeships and judicial workload between judicial election districts and a majority of the judicial council approves the apportionment. Requires state court administrator apportion magistrates throughout the state using a case-related workload formula in addition to the other criteria already listed in statute. Permits the chief judge to assign a magistrate to hold court outside of the magistrate’s county of appointment for the orderly administration of justice.
- Residence – Requires district associate judge reside *in the judicial election district* in which he or she serves (currently must reside in county). Allows a magistrate to be a resident of a county contiguous to the county of appointment during the magistrate’s term of office.
Then-Governor Chester Culver vetoed the bill. In his veto letter, Governor Culver cited two portions of the bill he disapproved of:
- a requirement that only one district judicial nominating commission member may be appointed from each county unless there are fewer counties than commissioners and
- the sections allowing the Chief Justice to delay the appointment of judges for up to one year.
In 2011, with Terry Branstad now set to be sworn in as Governor next week, the bill is being redrafted and set for reintroduction (current draft is D. 1281). Governor Culver’s first objection (judicial nominating commission member allocation) is removed however the second (chief justice may delay filling judicial vacancies) is in the current draft. Additionally, a section that was dropped from the original has been re-added.
- Selection – Permits chief judge of judicial district to appoint clerk of court and remove clerk for cause after consultation with other judges (currently, clerk is appointed and removed by a majority vote of all district judges in district)
It is unclear if the new bill will face a legislature as-receptive as the one in 2010 and/or a governor less veto-prone
For the fifth year in a row, Virginia is considering increasing the retirement age for its judges above its current 70.
The effort began in 2007 with SB 997, a bill that would have increased the age from 70 to 75. Its author submitted the bill “because many judges aren’t ready to retire by age 70.” A proposed committee amendment to remove the limit altogether failed because as the Senator in opposition put it “I know some judges who are so committed to practice they’d never retire.” The full Senate passed it 38-0, but the House failed to take it up.
In 2008, at least three bills (HB 783, SB 19, SB 34) made their way through various committees. Much of the focus was on SB 19, although passed by both chambers it was so heavily amended in each version they could not be reconciled before adjournment. 2009 proved no better: despite a unanimous 2007 Senate two years prior, an increase to 75 (SB 856) was rejected by the 2009 Senate 18-22; the House version (HB 1818) never even made it out of committee.
2010 marked a breakthrough year: SB 206 (increase to 73) made it through the Senate and the House Courts of Justice Committee, but died when referred to House Appropriations.
HB 1497 is picking up where SB 206 left off, with 73 the apparent target age.
There have been numerous efforts to try and avoid the excesses of judicial elections, but one Florida House member has proposed a unique solution. In 2010, Broward County faced an “unwieldy primary election for judges [with] 42 candidates including 15 incumbents in 20 races”. (h/t Florida Bar News) This prompted state Sen. Jeremy Ring to introduce SB 140, a constitutional amendment that increases the number of years a person must be a member of the Florida bar before being eligible for a trial court judgeship. Circuit and county court judges would need to have 10 years as an attorney (currently 5 years for circuit, and bar admission only for county), the same qualifications needed as with the state’s appellate courts. An identical bill (HB 47) was also introduced in the House.
The speculation over the (possible) resignation of U.S. Supreme Court Justice John Paul Stevens has drawn attention to his age. At nearly 90, Justice Stevens has the option of resigning or not, however most of his state supreme court counterparts have no choice but to resign when they reach their 70s.
This NCSC Backgrounder looks at current state restrictions and legislation being tracked by Gavel to Gavel that would change or eliminate such state provisions.