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.
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.
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.
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.
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.
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.
Merit selection has been the focus of an exceptionally large number of bills this legislative year, and a even more surprising number have advanced in their respective chambers in the last seven days. The scope of the bills range from tweaks, to modifications, to outright abandonment of merit selection.
Iowa’s HB 242, requires 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 that two members from the same county. It was approved on March 7, having bypassed any committee hearings, on a 98-0 vote.
Arizona SCR 1040 substantially rewrites, but does not end, the state’s merit selection system:
- Increases to 400,000 the population requirement for a county to have merit selection for judges (currently 250,000).
- Increases supreme court and superior court terms to 8 years.
- Strips state bar’s power to fill certain vacancies on judicial nominating commissions. Requires instead state bar submit 3 names for each state-bar vacancy on commission for governor’s approval and that a majority of the 3 must be the same political party as governor.
- Requires attorney-members of commissions have been member of bar at least five years.
- Removes requirement that governor’s appointments to commission be confirmed by senate.
- Provides of 13 members of appellate commission, none may be currently serving as a judge, not more than two of the members may be attorneys, not more than one member may be a retired judge, not more than nine members may be members of the same political party, and not more than six members may be residents of the same county.
- Provides supreme court *must* adopt any rules that the commissions vote for themselves, so long as they are lawful.
- Expands number of names to be submitted to governor for a vacancy from 3 to 6. If fewer than 6 people apply, all eligible names must be submitted
- Subjects all those selected by governor to senate confirmation.
- Ends retention elections. Provides that at end of term governor may reappoint and senate may reconfirm judge.
SCR 1040 was approved March 8 by the Senate on 19-11 vote.
Oklahoma SB 621 requires any appointment or reappointment by the Governor to fill a Judicial Office be confirmed by a majority of the Senate. SB 621 was approved March 8 by the Senate on 30-14 vote.
End Merit Selection
Oklahoma SJR 36 repeals Section 3 of Article VII-B of the Oklahoma Constitution establishing the Judicial Nominating Commission. IT amends Section 4 of Article VII-B dealing with the Judicial Nominating Commission and replaces with provisions allowing the governor, upon a judicial vacancy, to chose anyone subject to Senate confirmation. If the Senate is not in session when an appointment is made, the Governor may call the Senate into special session no more than once per quarter to advise and consent on any such appointments.
SJR 36 was approved earlier this evening (March 9) on a 32-15 vote.