Bills to require senate confirmation of judicial nominees finding more approval in state senates than in state houses

A big trend in recent weeks, and for that matter years, has been to target for elimination of merit selection systems for selecting judges (see here). A related often parallel set of bills seek to interject Senate confirmation of whomever the governor, working off the list of names given by a nominating commission, appoints. These efforts are proving as or more effective in gaining legislative approval that attempts to outright end merit selection. However, somewhat interestingly, most such bills are thus far being introduced and active in state senates with less interest shown by the lower chambers, who would have no role in any such confirmation process.

Earlier today, for example, the Florida Senate Judiciary Committee approved SJR 1664 which, while maintaining the state’s existing merit selection system for appellate judges, would add to the state’s constitution a requirement those chosen for the supreme court only be approved by the state’s senate as well. Interestingly, unlike other similar bills (some discussed below), there is no authorization for the Senate to bring itself into session in case a confirmation is needed. However the state’s constitution does allow for special sessions to be called by the governor and “convened as provided by law”.  Presumably this later provision would be used if the constitutional amendment itself were approved by Florida voters.

Similar to Florida’s SJR 1664, Oklahoma’s SB 621 would require senate confirmation, but does not include a provision allowing the senate to convene itself for those purposes. The state’s constitution allows the entire legislature to be called back in by two-thirds of both chambers, but it is not clear of that means two-thirds of the senate can call just itself back in. SB 621 was approved by the Senate on March 8.

Arizona SCR 1040 massively restructures, but does not formally end, the merit selection system in the state. Included is a provision requiring senate confirmation. The senate president or a majority of senators are explicitly authorized to convene the chamber for the confirmation. Moreover, there is a built in presumption and default of confirmation: the senate must explicitly reject the appointee within 60 days or the person takes judicial office “as if the appointee had been confirmed. ” The bill also ends retention elections and puts in place a system of reappointment and reconfirmation, again with the same 60-days-to-reject rule. SCR 1040 was also approved by the Senate on March 8.

Finally, Pennsylvania is once again considering changing to a merit selection system for its appellate courts with a senate confirmation provision. SB 842 would be the implementing statutes for the constitutional amendment in SB 843, if approved. As for senate reconvening, the state’s constitution is already mostly prepared. The state’s governor may fill a judicial vacancy caused by death, resignation, etc. and the senate must confirm when it comes back into session (if recessed or adjourned) within a certain number of days or else the appointment is deemed confirmed. The same provisions would be duplicated for cases involving an appellate merit selection system.

Not only would there be a presumption or default of confirmation, but should the senate reject three nominations made for a specific vacancy, the nominating commission itself, without interference by the governor or the senate, would pick a fourth person who would automatically take office (no appointment or confirmation necessary). The two Pennsylvania bills were introduced March 15 and are pending in the Senate Judiciary Committee.

As I noted at the start, senate-confirmation bills are often dead-letters in the various houses/lower chambers in the states. Bills going nowhere so far include Arizona HCR 2020, Iowa HB 429 and HJR 12, Kansas HCR 5015, and Oklahoma HJR 1009. All include senate confirmation in addition to, or in lieu of, merit selection.  In addition, a Rhode Island House bill (HB 5675) would transfer the existing power to confirm from the Senate to the House.

That said, some senate-confirmation bills are finding house approval.

Kansas HB 2101 ends merit selection system for the state’s court of appeals judges and instead creates a governor appoints/senate confirms system. The senate president could call the senate into session for the confirmation process. The bill was approved by the full House February 25.

A similar Florida House bill (HJR 1097) would outright end merit selection for appellate judges and make use of senate confirmation only was approved by the House Judiciary Committee’s Civil Justice Subcommittee on March 17.

Missouri bill would allow judges more power to name clerks of court

In most states, the same practice used in one location/circuit/district/county to select the clerk of court is used in all other such geographic areas. Missouri, however, is one of a few exceptions to this rule, and a new bill would make it even more, er, exceptional.

Section 483.015(1), RSMo establishes the general rule: circuit clerks are be elected by the qualified voters of each county.

483.105(3) allows for what amounts to a county opt-out. An amendment to a county charter can allow for either a) the appointment of a court administrator to perform the duties of a circuit clerk or b) the appointment of a circuit clerk. Similarly, 483.105(2) establishes that the court administrator for Jackson County and the director of judicial administration and the circuit clerk of St. Louis County shall be selected as provided in their various charters. Finally, 483.105(4) provides the circuit clerk in the sixth judicial circuit (Platte County) and in the seventh judicial circuit (Clay County) are appointed and removed by a majority of the circuit judges and associate circuit judges of the circuit.

Into this mix comes HB 884 of 2011. It effectively expands the appointment-by-judges provisions of 483.105(4) to the twenty-second and twenty-eighth circuits, plus Scott County (only) in the thirty-third judicial circuit.

The bill is currently pending in the House without a committee assignment.

FL: Bills to split supreme court and change judicial elections up for hearing on March 17

Tomorrow’s (March 17) House Judiciary Committee, Civil Justice Subcommittee promises to be very active with respect to the state’s judicial structure and election. A podcast of the hearing will be available here and video here.

On the agenda already are:

HJR 1097, a constitutional amendment that ends the state’s merit selection system for future supreme court and district courts of appeals judges. Instead, those seeking initial terms would be appointed by the governor with senate confirmation. HJR 1097 would, however keep retention elections for subsequent terms.

PCB CVJS 11-06, a constitutional amendment that would rename the existing supreme court the Supreme Court of Civil Appeals and create a second court of last resort (a Supreme Court of Criminal Appeals). Both courts would be made up of five justices selected using the existing merit selection system, each with its own judicial nominating commission. The three most senior justices of the existing supreme court would transfer to the new Supreme Court of Criminal Appeal and the existing supreme court’s pending caseload divided.

The constitutional amendment specifies the two courts “are to be separate courts of last resort”, this in contrast to the original reports that the proposal would simply expand the existing supreme court into two panels of five. The constitutional amendment would provide the chief justices of these courts would be named by the governor subject to senate confirmation (the current chief justice is chosen by the court itself). While both courts (acting jointly) would still be able to recommend increases in the number of trial judges, rule-making powers of the court(s) would be curtailed by a new provision that “Administration of the court system shall be as provided in general law.” Moreover, the Supreme Court of Criminal Appeals would hear complaints from the state’s Judicial Qualifications Commission.

PCB CVJS 11-07 would change numerous statutes putting CVJS 11-06 into effect.

PCB CVJS 11-08 would replace the state’s existing judicial nominating commissions. The new commissions would be selected entirely by the governor with no input from the state bar (currently, bar sends three names for each vacancy for the governor to select from). The terms of the commission members would be concurrent with the governor, meaning a new governor would be able to pick all new commissions (currently, serve for 4 years). The bill does retain provisions that commission members selection should “ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution” of the population and that the Executive Office of the Governor shall provide all administrative support for each judicial nominating commission.

MN: Bill would increase mandatory retirement age, but do away with “incumbent” designation on ballots for judges seeking reelection

The last several years have seen dozens of efforts to lift or raise mandatory retirement ages for judges. Minnesota’s SB 627 does so minimally. Currently judges must retire on the last day of the month they turn 70. This would extend the term to the last day of the “official year of the state in the first even-numbered year during which a judge has attained 70 years of age.”

While the verbiage of Section 1 of the bill is somewhat obtuse, the language of Section 2 is starkly clear: “Minnesota Statutes 2010, section 204B.36, subdivision 5 is repealed.” That section provides that “If a chief justice, associate justice, or judge is a candidate to succeed again, the word “incumbent” shall be printed after that judge’s name as a candidate.”

It is unclear why these two items (one dealing with judicial selection, the other judicial qualifications & terms) are in the same bill.

SB 627 is currently pending in the Senate Judiciary and Public Safety Committee.

Vermont legislature prepares to vote on all five members of state’s supreme court

Through a quirk in timing, all five members of the Vermont Supreme Court are up for a retention vote this year.

Sections 32-34 of the Vermont Constitution establish the procedure for the filling of judicial vacancies in the state’s courts. Vacancies are filled by the Governor from a list of nominees presented by a judicial nominating body established by the General Assembly. The judges then must get Senate confirmation. They serve for six years and may then submit their names to the full General Assembly. The judges are automatically continued in office “unless a majority of the members of the General Assembly voting on the question vote against continuation in office.”

State statutes require a Joint Committee on Judicial Retention conduct at least two public hearings on the re-appointments by March 10 and that the General Assembly vote by March 17. The same statutes, however, allow for extensions of time, which is precisely what JRS 20 is intended to do, extending the deadline for the General Assembly’s vote to March 24.

JRS 20 was approved by the Senate on March 9 and is currently pending in the House.

OK: Bill would require judicial candidates post all written opinions online 60 days before election

Oklahoma’s legislature has been working overtime on changes and alterations to the state’s judicial selection system (see here). This week the state’s Senate also approved SB 22 which would require, effective November 2011, all judicial officers running for election make their written rulings and opinions available online at least 60 days prior to the election.

The bill gives the candidate some options of how the information can be posted. They can designate a web site, the full address of which must be included within the declaration of candidacy. Multiple candidates can share a website, but only if the information is separated by judge/justice.

Left unspecified is how far back the opinions and rulings would have to be kept. For example, several of the justices of the state’s supreme court and court of criminal appeals (the two courts of last resort in the state) have served for 30+ years as judges of both trial and appellate courts. Supreme Court Chief Justice Steven W. Taylor, for example, served as a District Judge and Associate District Judge for 20 years (March 1984- September 2004) and has served on the Supreme Court since. Court of Criminal Appeals Presiding Judge Gary L. Lumpkin has been on that court since January 1989, having previously served as seven years as a District Judge and Associate District Judge (1982-1989).

It was approved by the full Senate March 9 on a 30-13 vote.


AZ bill would require voters be informed of cases where a judge struck down a law as unconstitutional just before election day

Many states provide for voter information pamphlets to be distributed by the state or locality prior to an election. Most provide basic information, such as biography, years of service, education, etc. Judicial candidates in Arizona and some other states also have the recommendation (RETAIN or NOT RETAIN) of the state’s commission on judicial performance.

SB 1472 of 2011, however, would add a listing of a judge’s published decisions which declared a statute unconstitutional and the provision of the Constitution relied upon. Moreover, statements for and against the candidate could be filed with the Secretary of State and would have to be published (similar to pro/con statements used initiatives/referendums). Under the bill, attorneys are explicitly exempted from any discipline related to a statement placed into the pamphlet.

The bill passed the Senate March 3 on a 20-5 vote.