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.

In last seven days, bills to tweak, modify, or end merit selection advance in the IA House, AZ Senate, and OK Senate

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.

Tweaks

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.

Modifications

Arizona SCR 1040 substantially rewrites, but does not end, the state’s merit selection system:

  1. Increases to 400,000 the population requirement for a county to have merit selection for judges (currently 250,000).
  2. Increases supreme court and superior court terms to 8 years.
  3. 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.
  4. Requires attorney-members of commissions have been member of bar at least five years.
  5. Removes requirement that governor’s appointments to commission be confirmed by senate.
  6. 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.
  7. Provides supreme court *must* adopt any rules that the commissions vote for themselves, so long as they are lawful.
  8. 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
  9. Subjects all those selected by governor to senate confirmation.
  10. 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.

 

Arkansas’ unique constitutional trigger allowing for Court of Appeals merit selection may be, er, triggered

With the recent efforts in Kansas and Iowa, one might get the impression all state legislators have it out for merit selection for intermediate appellate courts. Not in the case of at least some members of the Arkansas legislature.

In 2000, the state adopted Amendment 80 which effectively restructured the entire state’s judiciary, consolidated many of the smaller local courts into a new district court, etc. Section 18 specifically and explicitly maintained the existing nonpartisan election system, but with a “trigger” provision. Instead of changing the nonpartisan election system via another constitutional amendment, the legislature (with or without the governor, it is not clear) can simply pass a bill sending the issue to the voters. Of course, given that the Arkansas constitution allows for an amendment to be submitted to the public with a single session majority vote, it is not clear this is any harder than a flat-out constitutional amendment would be.

(A) Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office. Provided, however, the General Assembly may refer the issue of merit selection of members of the Supreme Court and the Court of Appeals to a vote of the people at any general election. If the voters approve a merit selection system, the General Assembly shall enact laws to create a judicial nominating commission for the purpose of nominating candidates for merit selection to the Supreme Court and Court of Appeals.

(B) Vacancies in these offices shall be filled by appointment of the Governor, unless the voters provide otherwise in a system of merit selection.

SB 744 of 2011 would trigger the merit selection provision for the Court of Appeals only, leaving the Supreme Court with nonpartisan races. Because Amendment 80 leaves the composition and details of the judicial nominating commissions to the legislature to figure out after approval, the ballot language is spartan:

TO AUTHORIZE THE GENERAL ASSEMBLY TO ESTABLISH A MERIT SELECTION SYSTEM FOR THE APPOINTMENT OF JUDGES TO THE COURT OF APPEALS

[ ] FOR authorizing the General Assembly to establish a merit selection system for the appointment of judges to the Court of Appeals
[ ] AGAINST authorizing the General Assembly to establish a merit selection system for the appointment of judges to the Court of Appeals

The only question I have is whether such a separate treatment is permitted. Amendment 80 uses the phrase “Supreme Court and the Court of Appeals” at each opportunity. Will opponents make the argument that it is a joint proposition (i.e. that you can have merit for neither or both)? Anyone familiar with Arkansas jurisprudence care to chime in?

The bill is currently pending in the Senate Committee on the Judiciary.

Unable to change merit selection for Supreme Court, Iowa legislators look to end it for Court of Appeals

I mentioned last week a statutory effort to end merit selection for the Kansas Court of Appeals. I noted at the time that these intermediate appellate courts, because they are often created by statute, are also able to have their selection methods changed by statute alone (vs. a constitutional amendment).This week, it is Iowa, likely in partial response to anger and angst over the state’s supreme court ruling in favor of same sex marriage several years ago.

The Iowa Constitution guarantees merit selection for that court (and the lower, District Court), and efforts have been introduced to end that system (HJR 12 and SJR 13). Such efforts would require two consecutive legislatures to approve it (majority vote only), plus approval at the ballot box. Thus, a change in the system would take years and a great deal of effort. The Court of Appeals, because it relies on a mere statute (Iowa Code 46.12 and 46.14A) can have its selection system changed in a matter of weeks during a single legislative session.

Enter HB 429 of 2011 which would end merit selection for the court and replace it with gubernatorial nomination and senate confirmation. Like the Kansas proposal, it would not do away with retention elections, however.

The bill is currently pending before the House Judiciary Committee.

Oklahoma: Fast track to ending merit selection in state?

It was not just Kansas acting to end merit selection last week. Oklahoma’s Senate Judiciary Committee approved SJR 36 fo 2011, which would end the state’s judicial nominating commission for appellate courts and allow the state’s governor to appoint any qualified person subject to  senate confirmation (additional coverage here, h/t Gavel Grab). As introduced, the judges so appointed would still be subject to retention election rather than re-confirmation or a contested election.

Today, the House Rules Committee announced it would take up its version (HJR 1009) March 2, possibly an indication the bill will bypass the subject matter jurisdiction committee (House Judiciary) altogether. Whereas the Senate version simply does away with any role for the state’s judicial nominating commission (JNC), the House version maintains the commission but makes their selections in effect, advisory. The governor “may appoint a person who is not one of the nominees to fill the vacancy.” Moreover, the House version retains a provision allowing the state’s chief justice to make the selection if the governor fails to do so for 60 days (the senate version jettisons this). Regardless of who picks, the individual chosen would be subject to senate confirmation and later retention elections.

This quick action may seem like a fast track, but it has been several years in building. 3 years ago SJR 36 of 2008 as introduced read very similar to SJR 36 of 2011, eliminating the judicial nominating commission outright and putting in place senate confirmation.  The House, however, heavily modified the bill. Their version would have kept the judicial nominating commission for the appellate courts and required vacancies (due to death, resignation, etc.) in the state’s trial and worker’s compensation court be subject to senate confirmation. Moreover, the House version read “Any appointment by the Governor to fill a Judicial Office shall be confirmed by a majority of the Senate.” (emphasis added) However, as noted above if the governor failed to make a nomination within 60 days, the chief justice would make the appointment and, as written in the House amendment, without the need for senate confirmation.  It is unclear if this was a glitch in drafting or by design. Regardless, the Senate rejected the House amendment and while a conference committee was appointed, time ran out before they could reach a compromise.

In 2009 it came back as HJR 1041. As introduced, it read almost exactly like SJR 36 the year before (senate confirmation for all judicial vacancies). What passed, however, was pared down again by the House to just senate confirmation for worker’s compensation court judges only (in OK, the worker’s compensation court is a court within the judiciary, not an executive branch agency).

HJR 1041 of 2009 was adopted and all ready to go for the 2010 ballot. It was withdrawn from the ballot in favor of  HJR 1041 of 2010. That bill (which became State Question 752) let the Speaker of the House and President of the Senate add 1 member to the JNC and put in a provision that non-attorney members of the JNC  could not have attorneys in their family. That was approved on the November 2010 ballot.

This created a problem: what to do with the JNC members in non-attorney designated seats who had lawyers in their family? In mid-February the state’s supreme court ruled they could stay.

Utah House moves bills to keep state’s retention elections and modify state’s judicial performance evaluation system

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”

legal ability

  1. demonstration of understanding of the substantive law and any relevant rules of procedure and evidence;
  2. attentiveness to factual and legal issues before the court
  3. adherence to precedent and ability to clearly explain departures from precedent
  4. grasp of the practical impact on the parties of the judge’s rulings, including the
  5. effect of delay and increased litigation expense
  6. (new) ability to write clear judicial opinions
  7. (new) ability to clearly explain the legal basis for judicial opinions

judicial temperament and integrity

  1. demonstration of courtesy toward attorneys, court staff, and others in the judge’s court; maintenance of decorum in the courtroom
  2. demonstration of judicial demeanor and personal attributes that promote public trust and confidence in the judicial system
  3. preparedness for oral argument
  4. avoidance of impropriety or the appearance of impropriety
  5. display of fairness and impartiality toward all parties
  6. (modified language) ability to clearly communicate, including the ability to explain the basis for written rulings, court procedures, and decisions

administrative performance

  1. management of workload
  2. sharing proportionally the workload within the court or district
  3. issuance of opinions and orders without unnecessary delay

Kansas: House votes to end merit selection for Court of Appeals

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.