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.
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.
California law (Elec Code § 13107) allows for those seeking judicial office to designate their current principal professions, vocations, or occupation with up to a 3 word description plus the word or phrase “appointed incumbent” or “incumbent” if the person is a currently serving as a judge.
The result has been in several recent judicial races candidates currently serving as Deputy District Attorneys using the 3-word description of their current position not as Deputy District Attorney but as “Child Molestation Prosecutor”, “Hardcore Gang Prosecutor”, or “Sexual Predator Prosecutor” or other similar phrases (see page 12 here for the 2016 Los Angeles County ballot). This hyperbole isn’t limited to prosecutors, with other attorneys adding words like “virtuous” or “eminent” or “leading” to their descriptions.
The author of the bill called these descriptors “disingenuous and histrionic.”
SB 235 as approved by the Senate earlier this year 34-1 and up for a vote possibly as early as this week would limit the 3 word descriptors.
- Prosecutors and others who are in government jobs would be limited to using their actual job title as defined by statute or local charter (e.g. Deputy District Attorney) + the geographic location OR “Attorney,” “Attorney at Law,” “Lawyer,” or “Counselor at Law.”
- Private practice attorneys would be limited to “Attorney,” “Attorney at Law,” “Lawyer,” or “Counselor at Law.”
- For both types of lawyers, “Attorney” and “Lawyer” could be used in combination with other words, but only words describing the profession or vocation: “Family Lawyer” would appear to be OK but “Eminent Family Lawyer” apparently wouldn’t.
A plan to restructure North Carolina’s entire judicial election map was approved in committee earlier this week but appears to have been blocked from a floor vote.
HB 717 as originally filed in April would have altered a few judicial election districts. The amendment, offered according to news reports with little or no notice in the House Judiciary I committee, would have instead restructured all judicial divisions and districts in the state. Opponents accused the sponsors of wanting to gerrymander the judicial districts in favor of Republicans. The lead author claimed he was correcting an existing pro-Democratic gerrymander of the districts. The author did acknowledge during the committee hearing that the new maps were drawn without input from judges, prosecutors (whose lines would also be redrawn), court clerks, or the state’s Administrative Office of the Courts.
Although the plan did come out of committee, objections to the bill swiftly reduced the odds of a floor vote in the House this session and HB 717 has been sent back to committee (Elections and Ethics Law).
News reports indicate that at least two members of the New Jersey Senate plan to introduced a constitutional amendment to require New Jersey supreme court justices face voters in yes/no retention elections. This plan is the latest in a 15-year pattern of similar efforts filed in the legislature after the state’s supreme court apparently in response to rulings issued by the supreme court regarding affordable housing requirements and education spending (the Abbott cases).
Under the current NJ constitution, Superior Court judges and Supreme Court justices are subject to a 3-step process:
- Initial nomination by the Governor and confirmation by the Senate.
- After 7-years of service, renomination by the Governor and reconfirmation by the Senate
- If renominated and reconfirmed, serve until mandatory retirement age (70).
The plan, as reported in local media, would be to replace renomination and reconfirmation with a yes/no retention vote after 4 years in office. (h/t Malia Reddick with IAALS)
This marks the latest in an over decade-long effort to change the way judges in New Jersey are picked, many focused on forcing justices and judges to run in elections. While dozens of constitutional amendments have been proposed, none appear to have gotten as far as the committee hearing stage.
Details below the fold.
Continue reading New Jersey: latest in 15+ year effort to require state supreme court justices be subject to retention elections; legislative reaction & disagreement with high court’s rulings
When Texas’ chief justice in his State of the Judiciary address brought up the issue of ending straight ticket voting (STV) for judicial races I wondered what that legislation might look like. Would it end STV for judicial races only? Some judicial races?
The answer now appears to be all races, judicial included. HB 25, as amended and soon to be sent to the governor, ends STV for all elected offices.
News reports indicate that if enacted, the law would almost certainly face a lawsuit under the Voting Rights Act, with opponents citing to a 2016 federal court ruling that stopped Michigan’s end to STV (Michigan judges run in nonpartisan general election contests and therefore were not under STV at any rate, as can be seen in this example from 2014).
A plan to change the way Pennsylvania’s appellate judges are picked has cleared the House Judiciary Committee, with amendments, earlier this week.
HB 111 of 2017 would amend the state’s constitution to create a merit selection/commission based process.
An Appellate Court Nominating Commission would be created made up of 13 members (8 bar members, 5 non-bar members)
- 5 appointed by the Governor (4 bar members, 1 non-bar)
- 2 appointed by the Senate Majority Leader (1 bar members, 1 non-bar)
- 2 appointed by the Senate Minority Leader (1 bar members, 1 non-bar)
- 2 appointed by the House Majority Leader (1 bar members, 1 non-bar)
- 2 appointed by the Senate Minority Leader (1 bar members, 1 non-bar)
The composition of the Commission has been a source of debate for prior iterations of this bill introduced over the last decade and discussed here.
When a vacancy occurs on an appellate court the Commission would submit to the Governor a list of “five of the most qualified individuals”; the Commission would be required in making that list to consider the geographic, racial, ethnic, gender and other diversity of the state. Nominees would also be required to have at least 10 years of legal experience.
The Governor would select from among the list of five names a nominee who would then be subject to Senate confirmation. Under the bill as introduced the Senate would have to give 2/3rds approval; that was amended in committee down to a simple majority.
If the Senate failed to confirm or reject a nominee within a set number of days the person would be automatically confirmed (“the nominee shall take office as if the appointment had been consented to by the Senate.”)
After Senate confirmation, the judge would have an initial term of four years before standing for a yes/no retention election for a full 10 year term.
In addition to amending the Senate confirmation down from 2/3rds to a simple majority, the committee made another key amendment: if HB 111 goes to the voters it must appear on a General Election ballot and not a primary or municipal (spring) ballot.
HB 111 now goes to the full House. If approved by the House and the full Senate, it would have to be re-approved by the 2019/2020 legislature before going to voters.