Arizona’s Proposition 115 not only contends with changes to the initial appointment under the state’s merit selection system for judges (as previously covered here). The constitutional amendment would also change the way judges are retained, specifically authorizing the legislature to meet and review the judge prior to their yes/no retention election.
Arizona already has a constitutionally required judicial performance evaluation program, adopted as part of Prop 109 in 1992.
The supreme court shall adopt, after public hearings, and administer for all justices and judges who file a declaration to be retained in office, a process, established by court rules for evaluating judicial performance. The rules shall include written performance standards and performance reviews which survey opinions of persons who have knowledge of the justice’s or judge’s performance. The public shall be afforded a full and fair opportunity for participation in the evaluation process through public hearings, dissemination of evaluation reports to voters and any other methods as the court deems advisable.
The Commission on Judicial Performance Review conducts reviews judge prior to a judge’s re-election and releases the results to the public (see here for results from prior years).
Proposition 115 would add an additional review, namely by the state’s legislature, just prior to the election:
Not later than sixty days preceding the regular primary election the supreme court shall transmit a copy of the judicial performance review of each justice and judge who is up for retention to the President of the senate and the speaker of the house of representatives. Not later than sixty days preceding the regular general election for the retention of justices and judges, a joint legislative committee consisting of the senate judiciary committee and the house of representatives judiciary committee, or their successor committees, may meet and take testimony on the justices and judges who are up for retention.
What do other states do?
Of the 15 states that use some sort of election-year (or reappointment year) evaluation for judges, none are like Arizona Prop 115′s plan which includes both legislative activity and an election. A detailed and comprehensive review of each program can be found at the American Judicature Society’s www.judicialselection.us.
Alaska: No appearance before legislature, retention election
The state’s Judicial Council conducts a performance evaluation and, at least 60 days prior to the election, releases a recommendation that voters do or do not retain the judge or justice.
Arizona (current): No appearance before legislature, retention election
Colorado: No appearance before legislature, retention election
A statewide or local judicial performance commission reviews the judge or justice. The commission then recommends “Retain,” “Do Not Retain,” or “No Opinion”.
Connecticut: Appearance before legislature, no retention election
An incumbent judge is evaluated by the Judicial Selection Commission and (statutorily) presumed to be qualified for reappointment unless the Commission rules otherwise. The Commission then sends the governor the incumbent’s name to the House and Senate, which holds a Joint Committee on Judiciary hearing. Both House and Senate must approve for a judge to be reconfirmed
Hawaii: No appearance before legislature, no retention election
Hawaii’s system requires the Judicial Selection Commission review a judge’s performance. It is the Commission itself (not the legislature and not the public via a retention vote) that reconfirms the judge for another term.
Kansas: No appearance before legislature, retention election
Until 2006 Kansas had no formal evaluation and recommendation process. That year the legislature created the Commission on Judicial Performance, however in 2011 the legislature shut down funding for the Commission and there are no evaluations for the 2012 elections.
Missouri: No appearance before legislature, retention election
In 2008 the Missouri Supreme Court created by rule a judicial performance evaluation program to recommend whether a judge should or should not be retained.
New Jersey: Appearance before legislature, no retention election
New Jersey’s system for its Superior Court, Appellate Division of the Superior Court (the state’s intermediate appellate court), and Supreme Court includes a single reconfirmation; a judge is initially appointed by the Governor and confirmed by the Senate for 7 years at the end of which if the judge is reappointed and reconfirmed he or she serves until age 70.
New Mexico: No appearance before legislature, retention election
The New Mexico Judicial Performance Evaluation Commission makes recommendations for or against retention.
New York: Appearance before legislature, no retention election
While all other judges in the state are elected or appointed, the state’s judges of the state’s top court (Court of Appeals) must be reviewed by the state’s Commission on Judicial Nomination, reappointed by the Governor, and reconfirmed by the Senate.
South Carolina: Appearance before legislature, no retention election
An incumbent judge effectively runs again; he or she must reapply to the state’s 10-member Judicial Merit Selection Commission; the commission itself is made up of 6 sitting members of the legislature and all members are selected by the House and Senate leadership. An incumbent judge is vetted along with any others seeking the office. The Commission then sends a list of names to the full House and Senate for approval.
Tennessee: No appearance before legislature, retention election
With respect to the state’s appellate courts, Tennessee uses a judicial performance evaluation commission makes recommendations for or against retention. With the recent disbanding of the state’s judicial council, membership of the commission rests with the leaders of the House and Senate, however under a newly enacted law the 9-member commission must include at least 3 judges. There is no provision for requiring judges appear before the Tennessee House or Senate.
Utah: No appearance before legislature, retention election
The Utah Judicial Performance Evaluation Commission and makes recommendations for or against retention. A tie vote results in no opinion/recommendation.
Vermont: Appearance before legislature, no retention election
The judge must go before the legislature’s Joint Committee on Judicial Retention. There is an automatic reconfirmation “unless a majority of the members of the General Assembly voting on the question vote against continuation in office.” (Vt. Con. Section 34)
Virginia: Appearance before legislature, no retention election
The legislature (House and Senate) reconfirms; the governor plays no role. The legislative review of the judges occurs before the House and Senate Committees for Courts of Justice and then to the full House and Senate. A formal Judicial Performance Evaluation Program lasted only a few years and was suspended in 2009.