Hearings in Maryland and Missouri tomorrow to change way states pick judges

Plans to change the way judges are picked in Maryland and Missouri are set for committee hearings tomorrow.

In Maryland, two bills previously debated over the last several sessions are returning to the House Judiciary Committee (2017 coverage here).

HB 513 of 2018

Former HB 579 of 2017, HB 388 of 2016, HB 1071 of 2015SB 295 of 2013, HB 1385 of 2010

Ends elections for Circuit Court judges. Provides judges to be appointed by governor, confirmed by senate, and subject to yes/no retention elections. Reduces term in office from 15 years down to 10 years.

HB 607 of 2018

Former HB 826 of 2017, HB 223 of 2016

Ends elections for Circuit Court judges. Provides Circuit Court judges to be appointed by governor and confirmed by senate. Provides if confirmation vote is less than 80% of senate, judge is subject to contested election. Provides judges who are 80% confirmed or who win contested elect are to be reappointed by governor at end of a 15 year term and need not be reconfirmed or face another retention election.

In Missouri the Senate Government Reform Committee will consider SJR 28. Currently the nominating commissions for the state’s appellate courts and select Circuit Courts must send “three persons” to the governor. SJR 8 eliminates the “three persons” language and replaces with “all qualified nominees and shall not be limited in number, but shall contain at least three nominees.” A version of the plan (SJR 11 of 2017) cleared the Senate General Laws Committee last year after the Senate leader indicated he may move to simply eliminate the merit/commission system entirely accusing the state’s supreme court of “going rogue” and his desire to see more conservatives on the bench.


Wyoming: Efforts to strip state courts of jurisdiction to hear K-12 funding lawsuits reintroduced; courts could declare funding system unconstitutional but could not order more funding

Last year the Wyoming Senate approved a constitutional amendment that would have prohibited courts from hearing K-12 funding lawsuits brought under the state constitution’s clause that the legislature is to “create and maintain a thorough and efficient system of public schools.” In 2018 several constitutional amendments were filed in this area, with one advancing to committee.

SJR 4 as filed was allowed to be introduced (normally, sessions in even number years are limited to budget issues only, but the House or Senate can vote to allow other items in). The constitutional amendment contains three key sections.

  1. The legislature alone is to decide funding levels and to “rationally determine” what those levels are
  2. The legislature alone is to equitably allocate funding among the school districts in order to have adequate, thorough and efficient schools
  3. The judiciary may declare a system of public school funding in violation of the constitution, but cannot order the legislature to take any action to generate revenue, through taxation or otherwise in order to fulfill its duties to fully fund the public school system.

SJR 4 is similar to HJR 9, which failed to advance to committee. I simply declared no court could order/require imposition of any tax or tax increase, nor require any other provision of funding for schools beyond what the legislature approved.

Oklahoma: plan to let county employees carry guns into courthouses modified in House committee

A plan to let more people carry guns into Oklahoma courthouses was modified by a House committee last week.

HB 2527 as originally filed and discussed here provided all county employees, not just elected officials as in a 2017 law that expanded courthouse carry, with the ability to carry concealed weapons “when acting in the course and scope of employment within the courthouses of the county in which he or she is employed.”

HB 2527 was amended in the House Public Safety Committee to allow for the county board of commissioners to make the decision.

The board of county commissioners of any county may designate certain employees of the county, who possess a valid handgun license issued pursuant to the provisions of the Oklahoma Self-Defense Act, to carry a concealed handgun when acting in the course and scope of employment within the courthouses of the county in which the person is employed. The provisions of this paragraph shall not allow the county employee to carry the handgun into a courtroom.

HB 2527 now goes to the full House.

Rhode Island: House bills guarantee certain trial court judgeships to “persons of color”, require Judicial Nominating Commission actively recruit persons of color for judgeships

Over the last several years bills have been introduced in the Rhode Island House to mandate more diversity in the state’s courts (see here for the 2017 efforts and here and here for the 2016.)

Efforts to guarantee certain trial court judgeships in Rhode Island to “persons of color” have been re-introduced.

HB 7648 provides that when a person of color leaves a trial court bench (Superior, Family, District, Traffic Tribunal, Workers’ Compensation, or Municipal) “their replacement must be a person of color, so as not to diminish the number of judges of color in that court.”

HB 7649 requires the judicial selection commission actively and aggressively solicit members of color to apply for judicial appointments, including practicing members of the Rhode Island Bar residing in border states.

These bills are in addition to HB 7532 as filed last week that requires the 9-member Judicial Nominating Commission must have at least 3 persons of color. That bill was discussed here.

All three bills have been filed in the House Judiciary Committee.

West Virginia: Senate approves big changes to judiciary; constitutional amendment would let legislature control judiciary’s budget; creation of intermediate appellate court advances

The West Virginia Senate approved two big changes to the state’s judiciary yesterday

Judicial Budget Oversight Amendment

SJR 3 as approved addresses funding for the state’s judiciary. Currently the West Virginia judiciary is unique among all states in that it’s budget request must be approved by the legislature without a decrease

The Legislature shall may not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased

SJR 3 as introduced would have reasserted legislative control, striking the “That no item relating to the judiciary shall be decreased” language.

SJR 3 as approved by the Senate Judiciary committee struck the language, but added a protection.

Provided, That the Legislature may not condition the increase or decrease of an item relating to the judiciary upon a particular ruling, order or decision of a court of this state.

SJR 3 as approved by the Senate Finance committee changed the wording further still

Provided, That the Legislature may not make any law that conditions the increase or decrease of an item relating to the judiciary upon a particular ruling, order, or decision of a court of this state

The Senate Finance language was approved by the full Senate. If approved by the House it would still have be approved by voters.

Intermediate Appellate Court (at least for the next 10 years)

SB 341 as amended and approved by the full Senate yesterday is the latest in a 20 year effort to get an intermediate appellate court in the state.

SB 341 would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges. The court would automatically sunset in July 2029.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

  1. The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.
  2. The governor would then appoint a person subject to Senate confirmation.
  3. Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

Included is a provision that civil appeals would lie either to the Intermediate Court of Appeals or Supreme Court of Appeals and that in civil cases “shall be afforded a full and meaningful review, and an opportunity to be heard, by the West Virginia Supreme Court of Appeals or the Intermediate Court of Appeals, and a written decision on the merits shall be issued, as a matter of right.”

SB 341 now goes to the House.

Arizona: you can adjudicate my case, but you can’t buy a beer (redux); committee hearing set for next week to eliminate minimum age for judges

In 2011, I noted that at that time several legislatures were considering raising the minimum age to be a judge. There have been recent instances of 26 and 27 year old judges and records indicate a 17 year old justice of the peace in Indiana in 1974 (Indiana has since disbanded these local courts) and an 18 year old high school student elected justice of the peace in Texas in 1990 and still on the bench today.

Arizona provides its Justice of the Peace court judges need only be 18 and a qualified voter and resident but requires its Superior Court, Court of Appeals, and Supreme Court judges be at least 30.

That, however, may change.

HCR 2036 as filed and set for a hearing before the House Appropriations Committee next week would remove the constitutional requirement that Superior Court, Court of Appeals, and Supreme Court judges/justices be at least 30. It would also eliminate the minimum age requirements for state executive and legislative positions.

There may, however be a practical impediment to the possibility of a future 18 year old sitting on an Arizona Superior Court. The constitution also requires that the person up for a judgeship also be “admitted to the practice of law in and a resident of the state for five years next preceding their taking office.”

Publication Note: Quoted in today’s New York Times

Judges Say Throw Out the Map. Lawmakers Say Throw Out the Judges

Court-bashing is nothing new. As far back as the 1800s, New Hampshire’s legislature disbanded the state’s Supreme Court five times, said Bill Raftery, a senior analyst at the National Center for State Courts in Williamsburg, Va., who has tracked legislation affecting the judicial system for years.

But political attempts to reshape or constrain state courts have risen sharply in the last 10 years, Mr. Raftery said, propelled by polarization and a fading of the civics-book notion of governmental checks and balances. That became especially true, he said, during the Great Recession that began in 2007, when legislators slashed spending for state judicial systems in the name of balancing budgets — but also, sometimes, in the cause of punishing courts for rulings they disliked.

“It ultimately boils down to this,” he said. “The courts are not looked on by some legislators as being an independent branch of government. For some, they’re looked on as an agency that needs to be brought to heel.”

That said, impeachment — or at least, impeachment threats and attempts — have become a common tool to pressure courts in recent years, said Mr. Raftery of the National Center for State Courts.

During the 2011 to 2012 legislative session, he said, lawmakers filed 14 bills in seven states seeking to remove judges, including an effort by Republicans in the State House to remove the entire New Hampshire Superior Court over its handling of custody and domestic relations cases.