Minnesota bill would, among other things, force judges to promise they will remain in office their full term or forfeit 25% of their pensions

I noted an interesting Minnesota combination bill SB 627 (which now has a House companion, HB 1536) which would increase mandatory retirement age for judges but do away with the “incumbent” designation on ballots for judges seeking reelection.

Another interesting combination bill has been introduced, this time in the House, HB 1474.

Section 1 ends the practice of election by district. Instead, judges would be elected from the individual county or judicial election precinct in which they have their chambers within a judicial district, rather than by the district as a whole. For counties/judicial election precincts with no judge currently, the Commission on Judicial Selection would assign a judge.

The remaining sections make a unique linkage between service and retirement.

Under Section 3 of the bill, any judge or justice seeking reelection must file a “commitment in writing” that the justice or judge will serve in the office until:

  1. the mandatory retirement date (changed, see below), or
  2. a newly created “optional retirement date” (see below), or
  3. the disability date, or
  4. appointed to another office of government, or
  5. unable to serve due to a compelling physical or personal reason.

Section 5 then defines a “compelling physical or personal reason”  as “a physical condition that renders the judge unable to perform the duties of judicial office or the need to care for a member of the judge’s immediate family.” The Court of Appeals (and NOT the Supreme Court) would make the determination of whether a “compelling physical or personal reason” exists. Because this bill would apply to all state judge/justices, this could (would?) result in a lower court ruling on the status of a higher court’s membership.

A judge or justice who retires/resigns without that “compelling physical or personal reason” (whether they made the commitment or not, thus covering first-term judges/justices) would forfeit 25% of their retirement annuity. The only exception would be if the judge is appointed to serve on another court, the judge retires due to a disability or the aforementioned “compelling physical or personal reasons”.

Section 4 also addresses resignations/vacancies, providing first that the mere announcement of an intention to resign does not create a judicial vacancy. More critically, the provisions create the title or designation of “placeholder” to refer to anyone appointed by the governor to fill a judicial vacancy. The person would specifically not be “a prior office holder or the successor of a prior office holder,” thus presumably not eligible to have the word “incumbent” next to their name come election time. If a placeholder then dies/resigns and the election is still more than 12 months away, the governor would be free to appoint anyone “learned in the law” and who meets all other criteria for holding judicial office to serve until a successor elected. If the election is less than 12 months away, the office would remain vacant.

Section 6 extends the mandatory retirement date of from the *end of month* in which judge turns 70 to *end of year of a general election* after a judge turns 70, while Section 7 creates an “optional retirement date” of December 31 of a general election year.

HB 1474 is currently in the House Government Operations and Elections Committee.

Special Edition on Merit Selection now out

There is little doubt that this is the single most active year with respect to merit selection in decades.

In light of today’s expected Florida House votes on altering the state’s merit selection system, Gavel to Gavel will be releasing this special edition that focuses on all such efforts to end, modify, or adopt merit selection in the states.

The regular, weekly edition of Gavel to Gavel will appear later today.

Omnibus bill week 2011: Indiana HB 1266 would restructure trial court jurisdictions

Necessity is the mother of invention, or, in recent history, trial court consolidation. Last year, it was Vermont consolidating its Probate, Family, and District Courts into the state’s Superior Court. This year, it looks like New Hampshire will be the state to attempt outright trial court consolidation into a new Circuit Court. Indiana, however, may achieve much of the same effect through HB 1266.

Circuit, Superior, and Probate Courts

Indiana has three types of “general” jurisdiction courts: the constitutionally created Circuit Courts, the statutorily created Superior Courts, and (in St. Joseph’s County only), a statutorily created Probate Court. For an overview of what counties have what (and why this came about) the Indiana’s Judiciary has a “Know Your Courts” review and interactive chart.

Circuit and Superior Courts have, generally, the same jurisdictions with respect to civil and criminal matters (as the Indiana Judiciary’s website notes, the differing names are “due to accidents of legislative history and local custom, not true differences in the nature or purpose of the courts.”) Rather than differing from court type to court type, the real difference is in counties. “The cases these courts hear can vary tremendously from county to county.”

HB 1266 would effectively end these distinctions. All circuit courts, superior courts, and probate court(s) would have:

  1. original and concurrent jurisdiction in all civil cases and in all criminal cases
  2. de novo appellate jurisdiction of appeals from city and town courts; and
  3. in Marion County, de novo appellate jurisdiction of appeals from township small claims courts

County-level Circuit Court Consolidation

Some Indiana counties have but Circuit and Superior Courts, although as noted the judges of these courts exercise essentially the same jurisdiction (for a list of who has what, click here) HB 1266 would consolidate the Superior Court judges in three counties (Clark, Henry, and Madison) into the Circuit Court.

County Courts

Indiana had, at one point, justice of the peace courts, juvenile courts, criminal courts, and magistrate courts, many if not most presided over by non-attorneys. In the 1970s these courts were consolidated into County Courts, but those courts themselves eventually gave way to presence of the Circuit and Superior Courts. The last County Court was abolished by their respective counties in 2009 (The state still maintains City and Town courts). HB 1266 would repeal the statute authorizing the County Courts altogether.

Merit Selection

At least some of the aforementioned County Courts were not utterly disbanded and were instead made into divisions of the county’s Superior Court. The result was a somewhat electoral patchwork quilt: while in general the Superior Court judges of a particular county might be elected in a one fashion (partisan election, merit selection) the County Division judges might be elected another. Lake Superior Court County Division had such a split: Superior Court judges were selected via a merit selection system, but the county division remained partisan elections. HB 1266 would reconcile the two, putting county division judges into the existing merit selection system.

Retirement Age for Judges

Presently, Superior Court judges have a mandatory retirement age of 70 or 75 (depending on which county). HB 1266 would eliminate the mandatory retirement age for all Superior Court judges.

Commission on Courts

The state’s Commission on Courts was created to consider policy involving the court systems and the creation of new courts. It makes recommendations to the legislature on its own initiative and may also be directed to examine issues at the direction of the legislature. (For details, click here). The statute authorizing the Commission is set to expire June 30, 2011. HB 1266 would extend it until June 30, 2015.

Florida: Seven House bills affecting courts “special ordered” to the floor for Thursday April 14

The Florida House Rules Committee yesterday specially directed some bills to the House floor, including several that I’ve been tracking lately. Among them:

Additional judiciary related bills potentially up on Thursday as part of the special order include:

  • HB 7023 Repeals provisions relating to regular terms of Supreme Court and circuit courts. Allows Supreme Court to set terms of court for Supreme Court, district courts of appeal, & circuit courts. Provides that appellate courts may withdraw mandate within 120 days after issuance.
  • HB 7113 Repeals provisions relating to restricting practice of law by retired justices, requirement to appoint Clerk of Supreme Court, requirement that clerk have office in Supreme Clerk Building, requirement that clerk perform duties as directed by court, & provision by which rules of court supersede statutes.
  • HB 7115 Repeals provisions relating to judicial census commissions. Until 1973, the Florida Constitution provided for one circuit judge for every 50,000 people in a judicial circuit. The statute related to judicial census commissions is no longer needed because the Constitution has been amended to provide for different method of determining the number of circuit judges.


Omnibus bill week 2011: Iowa SB 326

I mentioned back in January that a 2010 omnibus bill to overhaul numerous provisions of law related to the Iowa judiciary was partially vetoed, but reintroduced this year (see here).

The bill, now known as SB 326 of 2011, has been the subject of some substantial legislative ping-pong between the two chambers.


Originally, SB 326’s provisions included:

Filling vacancies – Grants authority to the chief justice to delay the nomination of a Supreme Court justice, court of appeals judge, district judge, district associate judge, associate juvenile judge, or associate probate judge magistrate for budgetary reasons. Grants authority to delay nomination for magistrates with certain limits.

Judicial allocation – Authorizes chief justice to apportion a trial judge vacancy to another judicial election district upon finding a substantial disparity exists in the allocation of judgeships and judicial workload between judicial election districts and a majority of the judicial council approves the apportionment. Requires state court administrator apportion magistrates throughout the state using a case-related workload formula in addition to the other criteria already listed in statute. Permits the chief judge to assign a magistrate to hold court outside of the magistrate’s county of appointment for the orderly administration of justice.

Residence – Requires district associate judge reside in the judicial election district in which he or she serves (currently must reside in county). Allows a magistrate to be a resident of a county contiguous to the county of appointment during the magistrate’s term of office.

Terms – Specifies that a senior judge, upon attaining the age of 78, may serve a one-year term and a succeeding one-year term at the discretion of the Supreme Court. Currently, a senior judge, upon attaining the age of 78, may serve a two-year term at the discretion of the Supreme Court.

Senate amendments deleted the requirement that the state court administrator apportion magistrates throughout the state using a case-related workload formula but added a provision limiting the chief justice’s power to delay filling vacancies to 1 year per vacancy and no more than 8 delayed vacancies at any given time. The Senate adopted the entire bill on a 50-0 vote.


Several House members who had earlier vowed to impeach members of the Supreme Court and end merit selection for the Court of Appeals, attempted to add an amendment to SB 326 that would have also ended merit selection for the Court of Appeals. Unlike in Kansas, where such an attempt to add an amendment ending merit selection was ruled germane to an unrelated bill, this effort was ruled not germane by the House Speaker. Undaunted, the sponsor asked for unanimous consent to allow the amendment. When that failed, he moved to suspend the rules and allow for the adoption of the amendment. That effort failed on a 6-89 vote. For additional details, check out this post from Gavel Grab.

The House did, however, adopt two amendments.

  • The first matched HB 242 and would require the state’s governor appoint at least one district judicial nominating commission member from each county unless there are fewer counties than commissioners. Given that the commissions are five member panels, and only Judicial District 7 is a 5-county district, this has the effect of prohibiting any district nominating commission from having more than two members from the same county.
  • The second requires all commission members chosen by the governor to serve staggered terms.

The House approved its version, with the House amendments, 93-2. The two House members voting against (Reps. Alons & Shaw) were among the four leaders of the effort to impeach the Supreme Court justices and had put forth the amendment to end merit selection for the Court of Appeals noted above.

Back to Senate

The Senate accepted the House amendments on April 11, but added one of its own. Under existing law, “no more than a simple majority” of district judicial nominating commission members appointed “shall be of the same gender.” The latest senate amendment would change the wording to “A simple majority of the commissioners appointed shall be of the same gender.”

Back to House

This latest version of SB 326 was sent back to the House on April 11.

Omnibus bill week 2011: Florida HJR 7111

I noted that April 7 was a big day in the Florida House Judiciary Committee, with 9 separate bills affecting a wide range of elements of the judiciary. Elements of the nine, and some other bills that were not on the calendar that day, were consolidated and passed as a Committee Substitute to HJR 7111 on a party line 12-6 vote. For a news account and other details, check out this Gavel Grab post.

Structure Changes

HJR 7111 was originally going to divide the state’s Supreme Court into two entirely different courts: a Supreme Court of Civil Appeals and a Supreme Court of Criminal Appeals (see here for details). Instead, the committee substitute:

  • expands the existing 7 member court to 10
  • divides them into two panels of five (civil and criminal) each with its own chief justice, each requiring 4 justices for a quorum.
  • The three most senior justices of the existing Supreme Court would initially be assigned to the criminal division.
  • The new 10 member Court would be required to inventory all cases active at the time the court is divided and assign them to their respective divisions.
  • The justices are expressly prohibited from meeting en banc, with specific exceptions discussed below.
  • The “legislature may, by general law, otherwise provide for the administrative transfer of employees, property, duties, and functions between the divisions.”

The Chief Justice of the State of Florida

  • would alternate every four years between the two divisions
  • be chosen by the Governor with Senate confirmation (currently, the Supreme Court selects its own chief justice); however the chief justice of the civil division would be the initial Chief Justice.
  • Divisional chief justices would serve for 8 years, but to remain as a justice of the supreme court they must be re-elected to the court every 6 years.


HJR 7111 would keep the state’s judicial nomination commissions, but require for Supreme Court justices only, nominees selected by the governor be subject to senate confirmation. There is a time limit: if the Senate fails to confirm within 90 days the individual is deemed confirmed. The Yes/No retention election system for all judges would remain (there had been efforts to increase the requirement to 60% Yes vote for retention).

Rule Making

  • The justices of both divisions (7 needed for a quorum) would meet jointly to set court rules, provide administrative supervision of the courts, and handle disciplinary cases.
  • The divisions would meet jointly regarding rules or may assign categories of the rules to the divisions.
  • Rules of the judicial nominating commissions would need to be approved by a majority vote of the justices of both divisions.
  • Rules of the judicial qualifications commission would need the affirmative vote of 7 of the 10 justices.
  • Except for these rule making/administrative functions, the justices would otherwise expressly prohibited from meeting en banc.

The legislature would be able to repeal any rule adopted by the Supreme Court

  • by a majority vote (currently, requires two-thirds of legislature)
  • The court could readopt the rule, so long as it was in conformance with the expressed policy expressed in the repeal bill or resolution.
  • If the rule was repealed a second time, the Supreme Court could not readopted it
  • “The legislature shall be the final authority to determine whether an adopted rule is again repealed.”


The biggest and most obvious jurisdiction change would be the civil/criminal distinction. There is an entire section of HJR 7111 dedicated to defining the difference between a criminal and civil case for divisional purposes.

  • The civil division would expressly be prohibited from hearing any cases that had any had anything, directly or indirectly, to do with the death penalty
  • Where there was a conflict between the divisions as to whether a case was civil or criminal, the current Chief Justice of Florida would decide.
  • The legislature would be able to “further define” the cases heard by each division.
  • Only a justice in the criminal division would be allowed to issue a writ of corpus in a criminal case.
  • The divisions of the new Supreme Court would be able to take any case up from the intermediate appellate court (district courts of appeal) that is found by to be “of great public importance.”

Salary & Budget

  • Commencing in FY 2013-2014, the state’s judiciary would be given a constitutional guarantee of a “total appropriation of all fund sources to the judicial branch [] equal [to] no less than 2.25 percent of the total general revenue funds appropriated in the general appropriation bill referred to in Section 19(b) of Article III.”
  • Any adjustments via a special appropriations act would be equal to no more than the percent of total general revenue appropriations adjusted in such special appropriations act.


  • The bill removes the power of the Supreme Court and District Courts of Appeal to name its Clerks and Marshals.
  • Removes the Governor’s power to ask the judicial qualifications commission for all information investigations/complaints against judges.
  • The commission would still be obligated to turn such information over, on request, to the House of Representatives. All information so turned over would remain confidential during any investigation and until such information is used in the pursuit of any impeachment.

Omnibus bills affecting the courts week: 2011

With the notable exception of budget/appropriations bills, most legislation affecting the courts are handled in single subject bills that affect only selection or court jurisdiction or salary, etc. Several states have in the recent past, however, consolidated numerous other bills into one omnibus bill that affects a variety of aspects of the judiciary. This year is no exception, with such bills be introduced in at least 4 states. This week I’ll be looking at each one individually and the various and sundry elements in each.