Last week I noted the Kansas House had voted to end merit selection for the state’s Court of Appeals. This week’s changes are in Utah, where today that state’s House rejected efforts to delay the transition of the state’s justice courts to retention elections. HB 392 as introduced, would have delayed the use of judicial retention elections for justice court judges until the 2018 general election. Under current law, such retention elections will go into effect upon the expiration of a justice court judge’s current term of office. Moreover, justice court judges would have been subject to the state’s judicial performance evaluation program starting in 2014.
As amended, however, HB 392 (Substitute) allows justice court judges to be evaluated for the 2012, 2014, and 2016 retention elections under two different standards.
- Justice court judges who are employed part-time on July 1, 2012 are to be evaluated by the criteria established before the Judicial Performance Evaluation Commission was established
- Justice court judges who are employed full-time on July 1, 2012 are to be evaluated by the criteria established when the Judicial Performance Evaluation Commission was created in 2008
HB 392 (Substitute) was approved on a 69-0 earlier today.
Also today the House Judicial Committee approved, SB 212 (Substitute). It passed the Senate last week on a 25-0 vote and was approved by the House committee today on a 10-0 vote.
In its present form, the bill
- allows the Judicial Performance Evaluation Commission to vote in a closed meeting on whether or not to recommend that the voters retain a judge
- requires that any record of an individual commissioner’s vote be a protected record not subject to public inspection under the state’s Government Records Access and Management Act
- removes litigants from the judicial performance evaluation survey
- allows survey respondents to supplement responses to survey questions with written comments;
- establishes that the judicial performance evaluation survey is to be reported in three categories: legal ability, judicial temperament and integrity, and administrative abilities
- establishes a clear minimum performance standard of at least 65% in each survey category
- allows only a judge who is the subject of an unfavorable retention recommendation to meet with the commission about its recommendation
- allows the judicial performance evaluation commission to only report public discipline that a judge has received
Additionally, the bill changes the four survey “topics” into three “categories” through the merger of judicial temperament and integrity and, as noted above, requires a 65% rating or better in each category (the existing standard is an average score of at least a 3.0 [on a 5 point scale] on at least 80% of the questions).
Proposed survey “categories”
- demonstration of understanding of the substantive law and any relevant rules of procedure and evidence;
- attentiveness to factual and legal issues before the court
- adherence to precedent and ability to clearly explain departures from precedent
- grasp of the practical impact on the parties of the judge’s rulings, including the
- effect of delay and increased litigation expense
- (new) ability to write clear judicial opinions
- (new) ability to clearly explain the legal basis for judicial opinions
judicial temperament and integrity
- demonstration of courtesy toward attorneys, court staff, and others in the judge’s court; maintenance of decorum in the courtroom
- demonstration of judicial demeanor and personal attributes that promote public trust and confidence in the judicial system
- preparedness for oral argument
- avoidance of impropriety or the appearance of impropriety
- display of fairness and impartiality toward all parties
- (modified language) ability to clearly communicate, including the ability to explain the basis for written rulings, court procedures, and decisions
- management of workload
- sharing proportionally the workload within the court or district
- issuance of opinions and orders without unnecessary delay
Unlike most state supreme courts, whose selection methods are typically placed into the state constitution, intermediate appellate courts (such as the Kansas Court of Appeals) are creations of statute, including their selection method.
After several attempts to push for constitutional amendments to alter the state’s Supreme Court merit selection system failed, opponents of the selection system instead focused on the state’s Court of Appeals, resulting in passage in the House today of HB 2101 on a 66-53 vote. Under the bill, instead of a judicial nominating commission selecting three names to forward to the governor for selection, the governor would be free to chose anyone otherwise meeting the basic eligibility (such as 10 years practice in law) subject to senate confirmation.
In the original version of the bill, the person confirmed would serve for life, however Article 15 of the state constitution prohibits terms of more than four years unless the constitution itself sets another term (for example, the same constitution gives the supreme court six year terms). As a result, the bill was amended to put retention elections back in.
Initial reports indicate the 66-53 was bipartisan with 48 Republicans joining 18 Democrats to approve the bill and 20 Republicans voting in opposition along with 33 Democrats.
Despite last year’s defeat of merit selection in Nevada, several states are actively considering putting it on their ballots. The first to a vote this year was in Montana, where SB 175 was considered by that state’s Senate Judiciary Committee over the last several weeks. In a January 27 hearing (audio here, minutes here) proponents noted the influx of money and partisan politics in judicial races and noted the need for fair and impartial courts. Some committee members, however, expressed concern that by having a partisan-elected governor select from a commission created by a partisan-elected legislature, politics would seep back in. One senator recommended having the supreme court chose.
Several senators expressed concern over the nominating commission composition. SB 175 provides only that the commissioners “shall be state residents and may not hold office in any political party. A majority of the commissioners shall be lay members who are neither attorneys nor elected officeholders.” Proponents argued that details of commission composition and selection should be left out of the constitition, citing a Montana tradition of not “legislating in the constitution.”
When a committee vote was finally held on February 4 (audio here) several committee members that voted against stated their worries about taking away the vote of Montana residents, that no Native American would ever be able to become a judge, and that the politics of judicial selection would simply go behind closed doors. All committee members present, however, did express their concerns over over-politicization of judicial election/selection, with some openly calling for a discussion on public financing. When brought to a vote, the bill died on a 6-6 tie with all five Democrats, plus the Republican committee chair voting No. However, several of the Yes votes were expressed with the caveat that they were voting to advance the bill to the floor and/or a fuller debate and might very well vote against the final bill.
With ongoing efforts in Iowa to impeach the remaining 4 justices on the state’s supreme court (details here), a more administrative judicial struggle is winding its way back through the legislature
In 2010, SB 2343 was approve by the legislature. The bill had several elements, including:
- 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 up to one year. Grants authority to delay nomination for magistrates with certain limits.
- 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.
- 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.
Then-Governor Chester Culver vetoed the bill. In his veto letter, Governor Culver cited two portions of the bill he disapproved of:
- a requirement that only one district judicial nominating commission member may be appointed from each county unless there are fewer counties than commissioners and
- the sections allowing the Chief Justice to delay the appointment of judges for up to one year.
In 2011, with Terry Branstad now set to be sworn in as Governor next week, the bill is being redrafted and set for reintroduction (current draft is D. 1281). Governor Culver’s first objection (judicial nominating commission member allocation) is removed however the second (chief justice may delay filling judicial vacancies) is in the current draft. Additionally, a section that was dropped from the original has been re-added.
- Selection – Permits chief judge of judicial district to appoint clerk of court and remove clerk for cause after consultation with other judges (currently, clerk is appointed and removed by a majority vote of all district judges in district)
It is unclear if the new bill will face a legislature as-receptive as the one in 2010 and/or a governor less veto-prone
In 2010, public financing for supreme court races appeared to be on its way to reality when it ran aground a procedural hurdle. The 2010 version would pay for the financing via a $3 fee on civil case filings, something that Lt. Gov. Brad Owen, as President of the Senate, ruled was a tax. Tax increases in Washington require a two-thirds majority of the legislature (fees require a simple majority, h/t Spokesman Review)
Despite not being able to achieve the two-thirds vote in 2010, the bill is back (SB 5010) and being sponsored by Senator-elect Scott White who, while a member of the 2010 House, sponsored the same public financing bill in that chamber.
Perhaps in anticipation of an expected 2012 Supreme Court election in the state, or as a reaction to judicial elections in other states, the Kentucky legislature will be considering a bill (HB 21) this year to create a public financing system for all judges in the state, paid for in part by a $25 annual assessment on all members of the Kentucky Bar Association. If adopted, Kentucky’s public financing system for judicial races might be the most expansive in the nation. Similar programs in Wisconsin, North Carolina, and New Mexico are limited to appellate courts only. A fourth program (West Virginia) adopted in 2010 is limited to only the state’s 2012 Supreme Court race.
Two states, both having dealt recently with contentious elections, are actively debating the use of Judicial Vacancy Commissions. While they share similar names, the two are dramatically different.
Alabama’s version builds on its pre-existing system where counties are allowed to opt-in into a system that allows for interim judicial vacancies to be filled by a commission that submits names to the Governor. The selected individual serves only the remaining years left in the term, but may run for a full term in the regular, partisan election system. So far, only 8 of Alabama’s 67 counties have the program, with a special constitutional amendment required for each county. However HB 443 would amend the state’s constitution to provide for the use of such commissions in all counties of the state. It was approved as amended by the House Judiciary Committee 2/11/10.
While Alabama’s version is obligatory (the Governor must select from the list of names given by the commission to fill the temporary vacancy), West Virginia’s proposal is explicitly advisory only. HB 4036 and SB 223 would create a Judicial Vacancy Advisory Commission to submit 2-5 names to the Governor when a vacancy occurred in any judicial office. The Governor would be under no obligation to make use of the list, but the list and most of the proceedings of the commission would be open to the public. The House version was approved by that chamber on 2/24/10 and is currently on the Senate floor, having been approved by the Senate Judiciary (3/8/10), and Finance (3/11/10) committees. Probably because of the advance of the House version, the Senate bill has not made it out of committee.