Iowa: raft of legislation attempts to curtail or end merit/commission selection of judges in state; give governor total control of voting commissioners, make lawyers nonvoting advisory members or simply remove them

I mentioned a few weeks ago an effort to remove all bar-selected members of Iowa’s judicial selection commissions. Now the latest efforts have come forward with a focus on ending merit/commission selection or allowing the governor total control over the process.

As a reminder, Iowa’s merit/commission system for judicial selection is based on 3 nominating commissions: a State Nominating Commission for appellate courts, various District Nominating Commissions for District Court judges, and County Magistrate Appointing Commissions for district associate judges, associate juvenile or probate judges, and magistrates. All have the same basic structure as set out (at least for the State and District commission) in the state’s constitution (Art. V, Sec. 16) but subject to statutory changes (“unless otherwise provided by law” as Art. V, Sec. 16 puts it).

  • members of the bar “elected by the resident members of the bar” of the state, judicial district, or county
  • non-lawyers appointed by the governor (subject to senate confirmation for the State Nominating Commission) or the local Board of Supervisors
  • a chair who is a judge

HJR 6: end the commissions outright, move to quasi-federal system

HJR 6 as filed covers a litany of issues related to the Court of Appeals (currently a creature/creation by statute). It also, perhaps most critically, simply ends the state’s commission/merit selection system and replaces it with a quasi-federal one. Governors would nominate individuals subject to senate confirmation for Supreme Court, Court of Appeals, and District Court vacancies. It does keep the constitutional provision for yes/no retention elections.

SF 263: remove all the lawyers

Identical to HF 173 which I discussed here, it would simply remove all attorney-selected members of all 3 nominating commissions and replace them with individuals elected by the district/county affected.

SF 327: reduce lawyers to 1 nonvoting/advisory member, give governor total control of voting commissioners

With proponents arguing that lawyers have too much sway over the non-attorney members of the commissions, SF 327 reduces the number of lawyer-selected members on the State Nominating Commission and the District Nominating Commissions to 1 non-voting advisory member and gives the governor total control over the voting members.

Currently, the 17-member State Nominating Commission looks like

  • 8 members of the bar “elected by the resident members of the bar” of the state
  • 8 non-lawyers appointed by the governor subject to senate confirmation
  • 1 voting justice of the supreme court (other than the chief justice) as chair

SF 327 would completely revamp this and give the governor total control over the voting commissioners

 

  • 1 non-voting advisory member elected by the bar; sitting bar members would be converted to non-voting advisory members and phased out
  • 16 voting members (4 per congressional district) appointed by the governor subject to senate confirmation
  • 1 non-voting justice of the supreme court (other than the chief justice) as chair; the justice could vote only to break a tie

 

 

 

West Virginia: bill ends plurality wins for state’s supreme court & requires runoffs for top 2 candidates; other judicial races would not be affected

West Virginia’s current voting system for the state’s courts are both nonpartisan (as of 2015) and plurality-win. This meant that in the 2016 contest for the state’s Supreme Court of Appeals the victor (Beth Walker) defeated incumbent Brent Benjamin with only 39.62% of the vote in a 5-way race.

HB 2635 as filed would prohibit such a win in the future, at least for the state’s top court. Instead, if no candidate received a majority of votes, the top 2 candidates would face off in a runoff within 30 days.

Interestingly, this would not apply to the state’s other judicial races. For example in 2016 the Circuit Court District 10, Division 4 seat was won with only 25.49% of the vote in a 10-way race while Circuit Court District 15, Division 1 was won with only 32.67% in a 6-way race. Similar races occurred for the state’s Family Court (37.34% for District 16, Division 1 & 39.11% for District 24, Division 2, both 3-way races).

HB 1635 has been filed in the House Judiciary Committee.

North Carolina: bill to return trial court contests to partisan races clears committee; other states moving in opposite direction

The North Carolina House Elections Committee earlier today approved HB 100, a bill to return the state’s trial court (Superior & District) races to partisan. Media reports here. The bill follows laws enacted in the last 2 years to make appellate races (Supreme Court and Court of Appeals) partisan.

As I noted when this issue came up in 2015, the trend in other states has been away from partisan races and towards nonpartisan ones. As recently as 24 hours ago a New Mexico constitutional amendment to move that state from partisan to nonpartisan judicial races cleared a key committee (discussed here).

  • 2015: West Virginia ended partisan elections for all courts via statute discussed here
  • 2000: Arkansas voters approved Amendment 80, a rewrite of the state’s Judiciary Article, which included nonpartisan elections for all judges.
  • 1994: Mississippi’s legislature enacted the Nonpartisan Judicial Elections Act, moving all judicial races (except Justice of the Peace Court) to nonpartisan.

 

New Mexico: plan to end partisan judicial elections for top courts clears key Senate committee

The plan to end partisan judicial elections for New Mexico’s top courts (discussed here) cleared the Senate Rules Committee yesterday on a 10-1 vote.

SJR 10 as amended would amend the state constitution’s requirement that races for the New Mexico’s top courts (Supreme, Court of Appeals, District, and Metropolitan) be partisan and replace with the word nonpartisan.

SJR 10 now goes to the Senate Judiciary Committee.

 

New Mexico: Hearing today on ending partisan elections for state’s top courts

New Mexico uses a unique system of judicial selection for the state’s top courts (Supreme, Court of Appeals, District, and Metropolitan) that includes partisan elections. Under a proposal set for a hearing today in the Senate Rules Committee, the partisan portion would change to nonpartisan.

New Mexico uses a three-step process for these 4 courts under its constitution (Art. VI, Sec. 33)

  1. For initial terms all judicial vacancies are filled by the governor from a list of candidates recommended by a judicial nominating commission.
  2. The political parties then conduct primaries to pick candidates to face off at the next general election. The governor’s appointee is not guaranteed to win that primary.
  3. Whoever wins the partisan general election can obtain additional terms through yes/no retention elections, but there they must obtain at least a 57% yes vote (the original 1988 constitutional provision made it a simple majority; a 1994 amendment raised it).

SJR 10 as introduced would change the second step and require it be a nonpartisan contest.

Each justice of the supreme court, judge of the court of appeals, district judge or metropolitan court judge shall have been elected to that position in a partisan nonpartisan election process as provided by law prior to being eligible for a nonpartisan retention election.

A separate provision would ensure that any judge in office on January 1 after the constitutional amendment was approved would not be impacted by this change.

If a majority of the Senate and House approve the amendment, it would go on to the ballot in 2018.

Arizona: hearing next week on plan to end merit/commission selection of judges & reduce terms down to 2 years; bill sent to House Appropriations, not House Judiciary

The latest effort to end merit/commission selection for Arizona’s appellate courts and Superior Courts has been refiled. HCR 2030 would require partisan elections for all appellate and Superior Courts and reduce judge’s terms in office from the current 6 (appellate) or 4 (Superior) down to 2 years. The companion HB 2534 provides the implementing statutes, contingent on passage of HCR 2030 and makes clear it is a partisan race.

As occurred last year the bill is not being heard in the House Judiciary Committee. Instead it has been sent into the House Appropriations Committee, which approved a similar version (HCR 2028 of 2016) although that version made the races nonpartisan (“without partisan or other designation.”)

 

Utah: bill to end use of race, gender, and other forms of diversity for judgeships clears House

The Utah House this week approved a bill to remove the power of an executive branch agency to set evaluation criteria for the state’s Judicial Nominating Commission (JNC), discussed here. The Commission on Criminal and Juvenile Justice (CCJJ) sets evaluation criteria for the JNC and had at one point included diversity as one criteria.

HB 93 was filed with an eye towards prohibiting the Commission from factoring in diversity in considering nominees for judgeships. Opponents claimed “diversity considerations take us away from choosing judges on the basis of merit” and that the consideration of race or gender was illegal. Opponents argued that the state’s judges did not reflect the diversity of the state’s population.

UPDATE: An amendment to the bill added on the floor specifies exactly what evaluation criteria are allowed to be used, and diversity is absent. What is included:

  1. legal knowledge and ability
  2. judicial temperament
  3. training
  4. professional experience
  5. integrity
  6. impartiality
  7. work ethic
  8. financial responsibility
  9. public service
  10. ability to perform the work of a judge

HB 93 is now in the Senate Rules Committee.