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.

California: bill would no longer allow candidates for judicial office to put “disingenuous and histrionic” words next to their names on the ballot

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.

  1. 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.”
  2. Private practice attorneys would be limited to “Attorney,” “Attorney at Law,” “Lawyer,” or “Counselor at Law.”
  3. 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.

North Carolina: amendment to revise all or almost all of the state’s judicial election districts approved in committee but unable to advance to floor

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).

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

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:

  1. Initial nomination by the Governor and confirmation by the Senate.
  2. After 7-years of service, renomination by the Governor and reconfirmation by the Senate
  3. 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

Texas: House and Senate approve plan to end straight ticket voting for judicial & other races, but lawsuits planned

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).


Pennsylvania: House Judiciary Committee approves merit/commission selection for appellate courts with Senate confirmation; con amendment would have to go on a general election ballot

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.