Rhode Island: bill to mandate diversity in state courts re-introduced; requires at least 3 persons of color on Judicial Nominating Commission

Over the last several years bills have been introduced in the Rhode Island House to mandate more diversity in the state’s courts (see here for the 2017 efforts and here and here for the 2016.)  Prior proposals included guaranteeing certain trial court judgeships to “persons of color”. This year’s plan includes a return of a prior proposal: guaranteeing certain Judicial Nominating Commission seats to “persons of color.”

Under HB 7532 as filed the 9-member commission would, starting in 2019, must have at least 3 persons of color.

HB 7532 has been filed in the House Judiciary Committee.

Florida: Plan to take power to name some Judicial Nominating Commissions seats from governor and give to legislative leaders advances

A plan to give legislative leaders picks on the state’s judicial nominating commissions, at the expense of the governor, cleared its first legislative hurdle in late January.

Currently the commissions are made up of

  • 4 picks by the Governor from lists provided by the State Bar Board of Governors, all of whom must be engaged in the practice of law. The Governor is allowed to reject the lists.
  • 5 picks by the Governor, at least two of whom must be engaged in the practice of law.

Under HB 753 as approved in the House Judiciary Committee’s Civil Justice and Claims subcommittee, the 4 picks by the Governor from lists provided by the State Bar Board of Governors would transfer to the House Speaker (2) and President of the Senate (2). All 4 would have to be engaged in the practice of law but the list of names provided by the Bar would be advisory only.

HB 753 now goes to the full House Judiciary Committee.




West Virginia: latest in 20 year effort to create intermediate appellate court advances out of committee; judges would not be “borrowed” from other courts and would not be subject to elections

For almost 20 years West Virginia has seen semi-continuously legislative efforts to create an intermediate appellate court in the state. The latest iteration has now cleared its first legislative hurdle.

SB 341 as amended and approved by the Senate Judiciary Committee last week would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

  1. The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.
  2. The governor would then appoint a person subject to Senate confirmation.
  3. Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

An amendment in committee to allow for judges to be elected, or at least to put the question to voters on election vs. appointment, was rejected.

Removed from the original bill was a requirement that the new appellate court render decisions in 180 days. Instead, the court would have to issued reports on pending caseload.

SB 341 now goes to the Senate Finance Committee.

Georgia: plan calls for creation of brand new type of court to handle business cases; judges would be picked by Governor; plan similar to one proposed in Texas

Georgia has one of the most complex trial court systems in the nation, with at least 6 distinct trial courts (Superior, Probate, State, Magistrate, Municipal, and Juvenile). Now legislators are pushing to create a separate 7th court: Business Court. This system would be used rather than as is the case now of having special dockets/calendars in existing courts (for example Fulton County Superior Court).

HR 993 would amend the state’s constitution to create a Business Court within 24 months of approval by the voters. The court’s decisions would be binding on all other courts except the Supreme Court and Court of Appeals.

Moreover, unlike the state’s other courts which are mostly elected, Business Court judges would be appointed by the Governor with no senate confirmation or election (retention or otherwise) for 5-year terms and reappointed by the Governor at will.

The plan bears striking similarities to the Chancery Court plan proposed in the Texas legislature in 2015 and 2017 and discussed here and here.

The judges would have to be admitted to the practice of law for 7 years and “have significant experience in business or other complex litigation” but there is no indication how that is supposed to be measured. A similar problem occurred when Washington State’s proposed a distinct Tax Court (see here).

Finally, HR 993 provides the language to be used on the ballot

Shall the Constitution of Georgia be amended so as to create a state-wide business court to lower costs, improve the efficiency of all courts, and promote predictability of judicial outcomes in certain complex business disputes for the benefit of all citizens of this state?

Missouri: efforts to amend or end merit/commission system of judicial selection introduced in legislature + initiative filed with Sec of State (needs 160,199 signatures)

Efforts to amend or end Missouri’s merit/commission system of judicial selection appear to be ramping up in 2018.

On the legislative side:

  • HJR 47 would end the commission system and allow a governor to fill appellate and select trial court vacancies subject to 2/3rds Senate confirmation. Judges would be subject to yes/no retention elections.
  • SJR 28 would provide that a nominating commission send all qualified names to the governor to fill a vacancy. Currently the constitution provides the commission is to send three names. A similar plan, SJR 11 of 2017, cleared the Senate General Laws Committee last year.

On the initiative side:

Petition 2018-318 The “Missouri Plan for Judicial Fairness and Accountability” needs 160,199 signatures to appear on the 2018 ballot.

  1. End the commission system for appellate courts and replace with partisan elections.
  2. Reduce the terms in office for appellate judges from 12 years down to 6
  3. Require the election of the chief justice by the state at large (currently chosen by the court)
  4. Term-limit appellate judges to two consecutive terms
  5. Allow judicial candidates to announce views on disputed legal and political issues
  6. Void any rule of court that would require recusal/disqualification for any such announcements
  7. Personally solicit funds for their campaigns

Oklahoma: Senate bill requires retention election ballots include age of judge, years of service, and appointing governor

Oklahoma’s appellate courts use a retention system where voters are given the name of the judge and asked (per the state’s constitution): “Shall (Here insert name of Justice or Judge) of (Here insert the title of the court) be retained in Office?” Said question shall be followed by the words “YES” and “NO”.”

A member of the Oklahoma Senate, however, wants more information to be placed on the ballot. Per SB 971 as introduced below the “shall…be retained in Office?” language would appear.

  • The age of the justice or judge as of the date of the General Election
  • The number of years served in the position as justice or judge
  • The name of the Governor who originally appointed the justice or judge to the court

SB 971 has bee prefiled for the 2018 session set to start in February.

North Carolina: Legislature wants to redraw all judicial districts, votes not to hold judicial primaries next year, governor vetoes, legislature overrides

Since at least 2015 North Carolina’s legislature has taken a particular interest in redrawing the maps for the state’s judicial districts (see here). Having switched to partisan judicial races in the last 12 months, the anticipation was that NC judges would run in primaries in the existing districts in the 2018. Now, however, it appears there will be no primaries at all.

SB 656, entitled the Electoral Freedom Act of 2017, includes various changes to election laws in the state. Most critically for the judiciary, however, was Section 4, which eliminates the 2019 primaries for judges and district attorneys.

North Carolina’s governor vetoed the bill, claiming in part that this denied people the right to vote on their judges and was a first step to transfer the power to select judges away from the people and to the legislature. News reports indicate a “assisted appointment” selection plan has been discussed in the North Carolina General Assembly that would effective give the legislature control over initial selection/appointment to judicial office.

The legislature then proceeded to override the veto.

Meanwhile, the effort to redraw judicial districts (HB 717) was approved by the House in October and is in the Senate.