Archive for September, 2012

Hawaii’s Amendment 2: Allowing judges to come back into limited service after their mandatory retirement age

September 27th, 2012

I’ve examined the dozens of bills introduced in the last several years to increase or eliminate mandatory judicial retirement ages. Hawaii itself tried, and failed, to increase the age in 2006. Now the state is considering a constitutional method that would maintain the retirement age but allow for the use of such retired judges via a new judicial position: emeritus judge.

Under SB 650 of 2012, on the November ballot as Amendment 3, the state’s chief justice would be permitted to recall into service judged forced into retirement due to the age limit for three month periods. The “emeritus judges” would be available for service as temporary judges in courts no higher than the court level they reached prior to retirement, thus a former Supreme Court judge could sit in the lowest trial court (District) but not vice versa. A provision in the original text of SB 650, one that would have also allowed for the retired judges to serve as “judicial mentors”, but this provision was amended out over concerns that the mentor would do more than just advise new(er) judges on court operations and procedures and instead influence judicial decisions.

What makes Hawaii’s provision potentially unique is the provision allowing judges over the mandatory retirement age to come back and serve as judges. While most states have some sort of statute or court-rule allowing retired judges below the mandatory retirement age to come back into judicial service, they are contingent on the judge remaining below that threshold, or serving in some non-judicial role (such as a special master, hearing officer, etc.)

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Ohio Issue 2: Putting the Supreme Court & Court of Appeals into the redistricting mix from the start

September 20th, 2012

It is not at all uncommon for redistricting/reapportionment plans to wind up before a state’s appellate courts, either as an appeal froPreview Changesm a trial court ruling on the matter or via an original proceeding filed directly with the court. Ohio’s Issue 2, however, would put the state’s Supreme Court and Court of Appeals into the mix when it comes to redistricting from the start.

Background

Issue 2, submitted to voters via signature gathered initiative, creates an independent redistricting commission. Under the plan:

  1. The state’s Chief Justice would select a panel of 8 Court of Appeals judges, only 4 of whom may be from the same party
  2. Those 8 judges would appoint an independent auditor and select potential members of the redistricting commission
  3. The 8-judge panel would submit 42 potential redistricting commission members (3 groups of 14; 1 from each of the two largest political parties + 1 group of independents) from all applicants. At least 5 of 8 judges must agree on each potential commissioner.
  4. House leadership (Speaker and minority leader) would strike 6 names each leaving 8 Republicans, 8 Democrats, and 8 Independents.
  5. From the 24 remaining, the Court of Appeals judges would select at random 3 from each grouping, leaving 9. Those 9 would then pick another 3 for a total of 12.

In addition to the selection process described above, Issue 2 also explicitly provides the Supreme Court with exclusive jurisdiction on redistricting and requires, if the commission unable to reach agreement on plan, the Supreme Court to pick from plans submitted to commission that meet criteria set elsewhere in amendment. Boundaries set by the Supreme Court are to last for a single election cycle and a new redistricting commission gets a chance to try and set new boundaries.

What do other states do?

It is not unheard of for state supreme courts or their chief justices to be constitutionally required to be involved in apportionment and reapportionment, although few put the judges into the process from the get-go as Ohio’s Issue 2 would do. Constitutional provisions from 19 states below the fold.

» Read more: Ohio Issue 2: Putting the Supreme Court & Court of Appeals into the redistricting mix from the start

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New Jersey Amendment 2: What states allow judicial compensation or salary to be reduced, and when?

September 19th, 2012

Like their federal counterparts, most state judges have some constitutional protection against a reduction of their compensation during heir terms. However, this is not true in every state, moreover some states make a distinction between “salary” and “compensation” in terms of which can and cannot be diminished. New Jersey voters will decide this November on whether to allow for an exception to that’s state’s ban on reducing judicial salaries.

Background

In 2011, New Jersey’s legislature adopted a plan (SB 2937) to change the state’s retirement systems, including the Judicial Retirement System (JRS). Under the plan judges would be required to pay a greater contribution to their retirement, but unlike in past instances the mandatory increase did NOT also include an increase in judicial salaries to compensate.

Shortly after enactment a Superior Court Judge filed suit, claiming the new law violated the state constitution’s “No-Diminution” provision:

The Justices of the Supreme Court and the Judges of the Superior Court shall receive for their services such salaries as may be provided by law, which shall not be diminished during the term of their appointment. (Article VI, Section 6, Paragraph 6)

A trial court found in favor of the claim and the New Jersey Supreme Court agreed in a 3-2 decision handed down in July 2012. While the case wound through the courts, the legislature was busily passing a constitutional amendment. SCR 110, appearing on ballots as Amendment 1, would add the following language (additions underlined):

The Justices of the Supreme Court and the Judges of the Superior Court shall receive for their services such salaries as may be provided by law, which shall not be diminished during the term of their appointment, except for deductions from such salaries for contributions, established by law from time to time, for pensions as provided for under paragraphs 3 and 5 of Section VI of this Article, health benefits, and other, similar benefits.

What do other states do?

Nearly every state has a constitutional provision related to judicial salaries and compensation, however they vary widely in terms of whether or not such items can be reduced and if so under what conditions.

State by state details below the fold.

» Read more: New Jersey Amendment 2: What states allow judicial compensation or salary to be reduced, and when?

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Posted in Election 2012, Salary & Budget

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Call for Article Submissions: Future Trends in State Courts

September 14th, 2012

Future Trends in State Courts is an annual, peer-reviewed publication that highlights innovative practices in critical areas that are of interest to courts, and often serves as a guide for developing new initiatives and programs, and informing and supporting policy decisions.  Future Trends in State Courts is the only publication of its kind and enjoys a wide circulation among the state court community. It is distributed in hard copy and electronically.

Submissions for the 2013 edition are now being accepted. Please email abstracts of no more than 500 words to Carol Flango at cflango@ncsc.org. Visit the Future Trends in State Courts website at www.ncsc.org/trends  for more information.

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Missouri Constitutional Amendment 3: The role of sitting judges on merit selection committees

September 11th, 2012

Among other things Missouri’s Amendment 3 would change is the role of the state’s Supreme Court, and in particular the service of one of its members.

Judges as members of the Missouri commissions

Under the state’s constitution there are two types of judicial nominating commissions: one that serves to fill vacancies in the Supreme Court and Court of Appeals (“The Appellate Judicial Commission”) and separate ones for each circuit or county that has merit selection (“The …… Circuit Judicial Commission”). Presently, the state’s Supreme Court picks one of its own members to serve on the Appellate Judicial Commission; for Circuit Judicial Commissions the chief judge of the Court of Appeals for the area serves. The constitution doesn’t require that the chair of the commission by the Supreme Court Judge (members of the Missouri Supreme Court are properly referred to as Judges, except the Chief Justice) or Court of Appeals Judge, although it appears the Judges do serve as chair in practice.

Amendment 3: Remove the sitting Supreme Court judge

If approved by voters, Amendment 3 would remove the provision for a sitting member of the state Supreme Court from serving on the Appellate Judicial Commission. Instead, a retired judge meeting certain criteria would be added as a non-voting member.

The members of the supreme court shall select a former judge, who has not lost a retention election or been removed for cause, of the court of appeals or the supreme court to serve as the nonvoting member of the commission…The voting members of the commission shall select one of the voting members to serve as chairman.

Not only does the provision remove the sitting judge from the Appellate Judicial Commission, it expressly precludes the retired judge to be named from serving as chair of the commission.

Constitutional provisions for judges as members of other merit selection commissions

States are about evenly divided on whether there is a state constitutional provision requiring a judge serve on nominating commissions; some states like South Dakota that have no constitutional requirement for judges to sit on such commissions have done so by statute where the constitution grants the legislature discretion to establish the composition of such bodies.

Details below the fold.

» Read more: Missouri Constitutional Amendment 3: The role of sitting judges on merit selection committees

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For third time California legislature approves of veterans courts: will this version get vetoed as well?

September 6th, 2012

Over the course of the last decade, courts have been confronted with an influx of veterans not seen in decades. In order to address the specialized concerns facing vets, individual judges or courts have created “veteran’s courts”; specialized dockets to handle cases involving returning service-members. Simultaneous with such court efforts have been attempts by state legislatures to enact legislation authorizing, or in some cases requiring, the use of such courts.

Several California counties already have veterans courts, but efforts to have a statewide statute for them have been vetoed twice before.

2007

The first legislative attempt was in 2007′s SB 851. THis program authorized the state’s trial courts courts to develop and implement mental health courts, as specified, which may operate as a pre-guilty plea program and deferred entry of judgment program and allows parolee participation in mental health court, as specified. Although not specific to veterans, the bill did call for ensuring “that eligible parolees requiring veterans’ treatment and recovery services outside of their geographic location will be given consideration for those needed services on a case-by-case basis.” SB 851 was vetoed by Schwarzenegger who, while acknowledging the mental health courts were “an important component of public safety and for managing our criminal justice system” vetoed the bill because of the cost as well as his contention that it “allows people who have committed crimes to avoid punishment completely because of a mental health issue.” The Senate failed to override the veto.

2009

AB 1925 of 2009 was  more veteran-specific than the 2007 bill. This version would have authorized the state’s trial courts develop and implement preguilty plea programs, deferred entry of judgment programs, and/or postguilty plea veterans court programs. Schwarzenegger vetoed that bill claiming it was unnecessary

[A]uthorizing legislation is not required for the superior courts to establish specialized courts with dedicated calendars. I would urge the Judicial Council to examine the need for veterans’ courts, however, and establish appropriate guidelines for the superior courts to follow.

2010

AB 674 of 2010, was enacted. Not a statutory veterans court program authorization per se, it did authorize courts to order a defendant who suffers from sexual trauma, traumatic brain injury, post-traumatic stress disorder (PTSD), substance abuse, or mental health problems as a result of military service into a treatment program or veteran’s courts (already set up by the judiciary in certain counties, as noted above) for a period not to exceed that which the defendant would have served in state prison or jail.

2011

With the election of Jerry Brown as California Governor in 2010, proponents reintroduced AB 674 verbatim as 2011′s AB 201. Brown, like Schwarzenegger before him, vetoed the bill.

While the provisions of this bill are well-intended, they create a clear expectation that our courts-already struggling with painful budget cuts–will establish a new program.

Given current budgetary constraints, the decision to adopt this kind of program-something already within the courts’ authority–is better left to the sound discretion of the judiciary.

2012

The legislation was once again introduced in February 2012 as AB 2611, again with language that was identical to AB 674 of 2009 and AB 201 of 2011. This legislation was given final approval by the legislature on August 27. There is no indication of the bill having been formally submitted to the governor yet or whether it will face the same veto-fate as the others before it.

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Arizona Prop 115: Judges seeking re-election to appear before legislative committees?

September 5th, 2012

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.

Background

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

See above

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.

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Oregon Measure 78 clarifies: does Oregon have a judicial branch? A judicial department? Both? What does your state have?

September 4th, 2012

We have been taught since grade school (hopefully) that there are “three branches of government” in the United States: the legislative, executive, and judicial. However, the Oregon Constitution and those in most states opt not to use the word “branch” or do so to reference some other concept. This fall voters in Oregon will get a chance via Measure 78 to redefine their existing “departments” as “branches”.

Background

The Oregon constitution adopted in 1857 in anticipation of statehood (in 1859) provided that

The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. (Art. III, Sec. 1)

The current constitution makes references to “departments” including the “Legislative Department (Art. IV), the Executive Department (Art. V), the Administrative Department (Art. VI) and the “Judicial Department” (Art. VII (Amended)) or elsewhere (Art. VII (Original)) “The Judicial Department”. However, it also references the “Department of Corrections” (Art. I, Sec. 41(12)), “Military Departments” (Art. V, Sec. 13), and “the Oregon Department of Administrative Services” (Art. XI, Sec. 15(4)).

To make matters somewhat more interesting, “branch” or “branches” are used to indicate the individual chambers of the Oregon Legislative Department, consistent with how the U.S. Constitution refers to state legislatures (“The [U.S.] House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”).

Thus Art. II, Sec. 15 reads (emphasis added)

Method of voting in legislature. In all elections by the Legislative Assembly, or by either branch thereof, votes shall be given openly or viva voce, and not by ballot, forever; and in all elections by the people, votes shall be given openly, or viva voce, until the Legislative Assembly shall otherwise direct. —

The reference of “branch” as chambers of the Legislative Department is repeated elsewhere (emphasis added)

General powers of Legislative Assembly. Each house shall have all powers necessary for a branch of the Legislative Department, of a free, and independant [sic] State.  (Art. IV,  Sec. 17)

Duties of Secretary of State. The Secretary of State shall keep a fair record of the official acts of the Legislative Assembly, and Executive Department of the State; and shall when required lay the same, and all matters relative thereto before either branch of the Legislative Assembly… (Art. VI,  Sec. 2)

Method of amending Constitution. Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, (Art. XVII,  Sec. 1)

There is a reference to the “judicial branch” in Art. XI, Sec. 15(7)(e) with respect to the legislature’s ability to enact taxes and a three-fifths requirement for same. Section 15(7)(e) specifies that “This section shall not apply to…Any requirement imposed by the judicial
branch of government.”

Oregon HJR 44 (of 2011), now known as Measure 78, amends three of these references to correct spelling errors and change “department” to read “branch” (Art. III, Sec. 1 & Art. VI, Sec. 2) and to make “branch” read “chamber” (Art. IV, Sec. 2). So, Art. III, Section 1 would go from this:

Sec. 1. The powers of the Government shall be divided into three seperate departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.-

To this

Sec. 1. The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.

What do other states do?

Oregon’s constitution is not the only one that references the judicial “branch” as a “department” or alternates usage of the terms. A list of state constitutional references is below the fold.

» Read more: Oregon Measure 78 clarifies: does Oregon have a judicial branch? A judicial department? Both? What does your state have?

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