Delaware: Senate approves 17-0 constitutional amendment to give governor & senate more time to consider judicial nominees, allow for prospective appointment

A constitutional amendment discussed here to give Delaware’s governor and senate more time to consider judicial nominations cleared the Senate last week. With House approval, the constitutional amendment would go into effect (Delaware doesn’t require voter approval of constitutional amendments).

Currently, the constitution provides the governor makes nominations and the Senate confirms for the state’s top courts (all but Alderman’s). Since 1977 every governor has used an advisory Judicial Nominating Commission. The governor and senate, however, are on a timetable:

  • The governor must submit a name to the Senate within 60 days after the occurrence of a vacancy.
  • The Senate, if in session, takes up the name. If not in session, the Governor must within 60 days convene the Senate to take up the nomination.
  • If an incumbent judge remains in office, they can holdover up to 60 days after the expiration of their term.

SB 25 of 2017 would effectively extend these deadlines and allow for prospective appointments if a vacancy is set to occur; the current constitution is silent on the matter.

  • The governor could submit a name to the Senate “from 30 days before to 90 days after” the vacancy happens.
  • The Senate could also be called back into session “from 30 days before to 90 days after” the vacancy happens.
  • Incumbent judges could holdover in office up to 90 days.

The constitutional amendment (then called SB 275 of 2016) was approved unanimously by both chambers last year.

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 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.


North Carolina: Senate overrides governor, state’s trial courts will go back to partisan elections; appellate races returned to partisan in December 2016

The North Carolina Senate has voted to override the governor’s veto of HB 100, a bill to take return the state’s trial court races back to partisan contests. The House had voted to override earlier this week (discussed here).

The legislature had already in a December 2016 special session moved to take appellate races in the state back to partisan.

Oklahoma: House and Senate advance plans to change structure of state’s supreme court, end merit selection

The Oklahoma House and Senate this week advanced bills to change the way the state’s appellate courts in general, and their supreme court in particular, are selected and structured.

Supreme Court Districts

On the House side, HB 1925 approved 77-16 would change the Supreme Court judicial districts (discussed here), creating 5 district-specific and 4 at-large seats on court.

  • 5 justices would be selected, 1 for each Congressional District as constituted on November 1, 2017. For transition purposes, the current seats from Districts 1, 3, 4, 5, and 6 would turn into Congressional-District based seats.
  • 4 justices would be selected at-large, however 2 justices must come from counties with a population of less than 75,000. The current seats from Districts 2, 7, 8, and 9 would transition to at-large.

Justices would still have to face statewide yes/no retention elections.

SB 213 approved 44-1 also addresses Supreme Court judicial districts. Under that plan

  • 5 justices would be selected, 1 for each Congressional District as constituted on November 1, 2017.
  • 4 justices would be selected at-large. There is no mention of selection from rural counties

Appellate Court Selection

On the selection side, the Senate advanced two constitutional amendments.

SJR 43 approved 37-8 ends merit/commission selection for the state’s appellate courts. Instead, the governor would nominate an individual and submit his/her name to the Judicial Nominating Commission for a review as “qualified” or “not qualified”. The nominee would then be subject to Senate confirmation and yes/no retention elections.

SJR 44 approved 38-7 would keep the state’s merit/commission selection system but require the Judicial Nominating Commission send the Governor 5 names (currently 3) for consideration and allow the Governor to ask for another list, for a total of 10 names. It requires the nominee be subject to Senate confirmation and provides if Senate fails to act within certain time frame(s) the nominee is confirmed by default. Once confirmed, the judges/justices would be subject to yes/no retention elections.

Montana: bill calls for creation of “Supreme Court Candidate Public Forum Program” to help inform voters

A plan to expand public information about Montana Supreme Court races has been filed in that state’s House.

First, some background.

Montana uses a unique election system for their Supreme Court.

  • For initial terms, justices run for a particular seat (e.g. Associate Justice #2, Chief Justice) in a non-partisan race.
  • For additional terms, if a justice runs in a contest race, it is again non-partisan. If the justice runs unopposed, the justice must still go before voters, but in a yes/no retention election. So, for example, in 2016 Chief Justice Mike McGrath ran unopposed, so had to go up for a retention vote (he won with an 82% yes vote).

Under HB 636 as filed the Montana Secretary of State would administer the Supreme Court Candidate Public Forum Program and invite all candidates to participate. The program is designed to provide increased public access to information about candidates for justice and chief justice of the Montana supreme court.

The Program would pay for candidates to travel to forums across the state and pay for the space needed to host, publicize, and broadcast the events. The Secretary of State would “arrange forums in a manner that emphasizes and respects the nonpartisan nature of the supreme court while providing electors important information about candidates.”

Funds for the Program would come from 2 sources

  • An increase in filing fees in appellate and civil cases
  • Voluntary income tax refund contributions up to $5 (individual) or $10 (joint) from state income tax forms. Those who owe taxes could contribute $1.

HB 636 has been assigned to the House Judiciary Committee.

North Carolina: governor vetoes bill to shift trial court races back to partisan contests; override vote set

A plan to switch North Carolina’s trial court races back to partisan contests was vetoed by Governor Roy Cooper. In his veto message for HB 100 Cooper indicated

North Carolina wants its judges to be fair and impartial, and partisan politics has no place on the judges’ bench. We need less politics in the courtroom, not more.

Judges make tough decisions on child abuse, divorce, property disputes, drunk driving, domestic violence and other issues that should be free from politics. This bill reverses that progress.

We should let people elect judges based on their experience and ability to do the job, not which party they pick.

I am also concerned that judges who have chosen to register as unaffiliated voters so as to avoid partisan politics now have a difficult path to getting on the ballot.

A vote to override the veto in the House is set for March 22. The original vote in the House was 65-51 with 1 not voting and 3 absent; proponents would need 3/5ths of those present and voting (60 votes) to override in the House. In the Senate the vote was 32-15 with 3 absent; they would 30 to override.