Missouri’s Constitutional Amendment 3 and Arizona’s Proposition 115 contend with modifying the states’ merit selection systems by changing the way they are constituted as well as how many names they submit to a governor. In this installment of Election 2012 coverage, I’ll take a look at the proposed particular changes with respect to the number of names submitted

Missouri Amendment 3

Under the present constitution, Missouri’s merit selection system applies to the state’s Supreme Court, Court of Appeals, the Circuit Courts of the City of St. Louis and Jackson County (Art. V, Sec. 25(a)), and any circuit that opts into the system (Art. V, Sec. 25(b)). One “nonpartisan judicial commission” handles the supreme court and court of appeals (and is specifically entitled “The Appellate Judicial Commission”) while each circuit that has merit selection has its own commission (“The …. Circuit Judicial Commission”). Both commissions submit “three persons possessing the qualifications” of their respective judicial offices to the governor, who then chooses one name.

Amendment 3 would bifurcate this: Circuit Judicial Commissions would still submit 3 names to the governor, but the Appellate Judicial Commission would submit 4.

Arizona Proposition 115

As I noted in my first look at Prop 115, this amendment would change a litany of provisions related to the state’s judiciary. With respect to the number of names, it would expand it from at least 3 names to at least 8. There is a proviso allowing fewer than 8 names to be sent to the governor, but only if two-thirds of the nominating commission rejects enough candidate(s) that finding 8 names would be impossible.

Trial vs. appellate

In the case of Missouri, the increase from 3 to 4 applies to the state’s appellate courts (Supreme Court and Court of Appeals), as compared to Arizona which would set the standard of 8 or more for both levels. In those states where there is merit selection at the trial and appellate level, the tendency is to follow the Arizona example and set the same numerical requirement for both. Colorado, Iowa and Utah (by statute) are the exceptions, with a longer list required for appellate court vacancies.

How many names for vacancies?

11 of the 20 states that use merit selection to fill appellate court vacancies, including Missouri, allow for 2 or 3 names to be sent to a governor. In a 2007 New Mexico Supreme Court decision, the constitution’s failure to list specific numbers but inclusion of language that a commission send “names of persons qualified for the judicial office and recommended for appointment to that office by a majority of the commission” was held to preclude sending a single name and implied at least 2.

No state has Arizona’s Prop 115 minimum of 8 names for a vacancy. Only Utah comes close with 7 for its appellate courts. New York does require 7, but only for the state’s chief justice (actual title is Chief Judge); the other vacancies on the court are filled via lists of as few as 3 names. Why the high number of names for the Chief Judge? The applicable statute (Jud § 63(a)) specifies this is “[i]n recognition of the unique responsibilities of the chief judge of the court of appeals for policies of judicial administration…”

State by state breakdowns below the fold.

• Previous Entry: Arizona Prop 115: A look at judicial terms in other states
• Next Entry: Florida Amendment 5: Merit selection but requiring Senate confirmation of Supreme Court picks. What do other states do?