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In moves similar to Florida in 2011, Kansas House committee votes to split supreme court; end merit selection, force judges off bench at age 65

May 16th, 2013

I mentioned yesterday the ongoing fight over merit selection for the Kansas Supreme Court. Yesterday was a very, very busy day and night.

During the day, the Kansas Bar Association’s executive committee unanimously rejected a proposal to change the state’s merit system that would give the governor the power to name 5 members of the merit selection commission and the state bar the power to elect 4 (currently it is bar 5, governor 4). The governor’s picks would serve at the pleasure of the governor and NOT for fixed terms. In addition the governor’s pick would be subject to senate confirmation.

During the night the fight took a new twist as members of the Kansas House Federal and State Affairs committee approved constitutional amendments that would end merit selection, split the supreme court, and change the mandatory judicial retirement age downward. (h/t Gavel Grab)

1) Split the Supreme Court: taking a page out of similar efforts in 2011 in Florida when that state’s House was angry with the Supreme Court (HJR 7111) the committee approved a plan to create a Kansas Court of Criminal Appeals to take over all criminal cases currently heard by the Supreme Court. Details remain fuzzy as the bill has not yet entered into the Kansas House’s bill tracking system. One news account seems to make it appear that the court would be on equal status and footing with the Supreme Court, a model that exists in Texas and Oklahoma. Another news account seems to indicate the new Court of Criminal Appeals would be an intermediate appellate court, a model that exists in Alabama and Tennessee.

2) End merit selection: The second proposal submitted by House committee would end merit selection and replace it with a form of federal system that includes executive (governor) appointment, senate confirmation, and possible life tenure. This may be similar if not identical to a House plan put forth in 2011 (HB 2101) for the Court of Appeals that included life tenure, a provision that was stricken after it was noted the KS constitution forbids life tenure for anyone (Art. 15, Sec. 2 “The tenure of any office not herein provided for may be declared by law; when not so declared , such office shall be held during the pleasure of the authority making appointment, but the legislature shall not create any office the tenure of which shall be longer than four years, except that appointments under a merit system in civil service shall not be subject to such limitation.”)

3) Reduce mandatory retirement age: At a time when most states are looking to INCREASE the mandatory retirement age, the House Federal and State Affairs Committee approved a measure to reduce it for Kansas from 75 (or more accurately the term in which they turn 75)  down to 65. The mandatory retirement age is set by statute and therefore does NOT require the supermajorities the other two proposals would require.

House Democrat Minority Leader Paul Davis told the Wichita Eagle: “Trying to mess with their retirement age and creating new courts are just simply an effort to try to bully the Supreme Court,” he said. “But there’s just no place for that.”

Lead proponent Rep. Lance Kinzer who chairs the House Judiciary Committee also told the Eagle that while the court-split and merit-selection end amendments were put forth with an eye towards 2014, the reduction in the mandatory retirement age for justices from 74 to 65 may get through the 2013 session.

With respect to the retirement age, it is unclear what justices would be impacted. The Kansas Supreme Court’s website gives the birthday or birth year of the 7 justices; a reduction from 75 down to 65 would not appear to result in an immediate forced resignation (assuming the provision is retroactive).

Birth year Retire during term each 75 (current) Retire during term each 65
Chief Justice Lawton Nuss 1952 2027 2017
Justice Marla J. Luckert 1955 2030 2020
Justice Carol A. Beier 1958 2033 2023
Justice Eric S. Rosen 1953 2028 2018
Justice Lee A. Johnson 1947 2022 2012
Justice Dan Biles 1952 2027 2017
Justice Nancy Moritz  1960 2035 2025

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North Carolina may let non-attorney sheriffs & other law enforcement plus clerks of court serve as District Court Judges

March 28th, 2013

While numerous states are considering making it harder for non-attorneys to serve as judges, North Carolina’s House is considering making it easier.

The state’s current constitutional provision requires all judges of all courts be attorneys (“Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a Justice of the Supreme Court, Judge of the Court of Appeals, Judge of the Superior Court, or Judge of District Court.”) There is a single exception: those judges serving as of January 1, 1981 (when the provision went into effect) may continue to serve.

HB 397 would add 4 exceptions for a District Court Judgeship:

  • elected sheriffs with 10 year experience
  • clerks of superior court with 10 years experience
  • magistrates with 10 years experience
  • anyone with 25 years law enforcement experience

This appears to be the first time in decades that anyone has introduced a bill to amend the qualifications for a judgeship in the state.

HB 397 is currently pending in the House Rules Committee.

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California Assembly bill would require disclosure of demographic data on veterans, those with disabilities considered or appointed to judgeships

March 22nd, 2013

Starting in 2007, California has required some degree of information and disclosure regarding those who apply to fill a judicial vacancies. Under a new bill introduced in the Assembly, the type of demographic data collected would be expanded.

First, some background.

SB 56 of 2006 requires an annual, aggregated report from three different groups regarding judicial selection starting March 1, 2007

  1. from the governor, who appoints the judges
  2. from the state bar, who evaluates applicants
  3. from state administrative office of the courts, regarding the judges currently sitting in the state

The data was focused under SB 56 of 2006 to two primary categories: the ethnicity and gender of the appointee/applicant/judge.

Under AB 159 of 2007, the data collected was expanded to ethnicity, race, gender. In addition, the state bar was to release information on applicants’ areas of legal practice and employment.

SB 182 of 2012 expanded the data collected further: ethnicity, race, gender, gender identity, and sexual orientation, plus areas of legal practice and employment for the state bar data.

The latest data collection expansion is AB 1005 of 2013 which would require disclosure of data in the aggregate regarding disability (as defined by the Americans with Disabilities Act) and veteran status as defined under federal law (38 U.S.C. 101(2)) of the appointees/applicant/judges.

AB 1005 is currently pending in the Assembly Judiciary Committee.

 

 

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Delaware may require judicial nominees belong to their political party at least 2 years

March 22nd, 2013

I mentioned in December the situation in Delaware. In short, the state’s constitution provides for judicial appointments based on political party and a mandatory balance. For example if the Supreme Court is made up of 3 Democrats and 1 Republican, the next appointee by the governor MUST be a Republican, regardless of the party of the Governor.

There were accusations that at least some people under consideration for judicial appointments were switching parties in order to become eligible for a particular vacancy. Senate Republicans (the Senate in Delaware confirms judges) at the time vowed to try and end the practice and have now introduced SB 14, a constitutional amendment to require a person must belong to a political party at least 2 years in order to be considered a member of the party for judicial appointment purposes.

Specifically, it amends Article IV, Section 3 to add paragraph 7:

Seventh, at the time of Senate confirmation of an appointment to a vacancy in any Judicial Office which requires the appointee to be a member of a political party, the appointee shall have been a registered member of that political party for a period of at least two years immediately prior to the confirmation.

Although the complaints in December 2012 came from Republicans, SB 14 is bipartisan with 7 Senate Republicans joined by 2 Senate Democrats in cosponsoring the bill; the House co-sponsors are also bipartisan.

SB 14 has been assigned to the Senate Executive Committee.

 

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Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

March 19th, 2013

I’ve mentioned in the past the sheer volume of bills, particularly in the last 3 years, to increase or eliminate the mandatory retirement age for judges. So far while there has been a great deal of activity no state has been able to get an increase or elimination either onto the governor’s desk or before the voters.

Hawaii in particular looks to be the most likely to get an increase or elimination, but it not at all clear how the state legislature will fare and how the voters will react. Hawaii has a particular history with the subject of mandatory judicial retirement, one that does not suggest adoption is certain.

2005-2006 session: Eliminate it

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise it

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Increase it and/or work around it

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Increase it and/or work around it (again)

Despite the loss in 2012, the legislature appears inclined to try and repropose the judge emeritus concept again to voters. HB 275 and SB 346 effectively cut and paste the language that was on the November 2012 ballot. The difference here would be that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

SB 650 of 2012: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

HB 275 of 2013 (as approved by House): The chief justice may appoint judges and justices who have retired as emeritus judges, permitting the appointed judges and justices to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per appointment.

SB 346 of 2013: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

 HB 275 as amended was approved unanimously by the full House February 28.

HB 792, SB 886 and SB 1022 all increase the mandatory judicial retirement age from 70 to 80. Of the three, it is SB 886 which has had the greatest success; it was approved unanimously by the Senate February 15 and unanimously by the House Judiciary Committee March 7. The next hurdle is the House Finance Committee. Despite the swift passage so far, it could be delayed up to a year and carried over until the 2014 session (as occurred with SB 650, mentioned above).

The latest status report on the bills in Hawaii and the other 16 states considering the issue this session are below the fold.

» Read more: Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

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Oklahoma Senate approves single 20-year term for appellate judges, ends merit selection in state, allows governor to pick chief justice

March 14th, 2013

I mentioned yesterday that March 11-13, 2013 was probably the single biggest 3 day period for merit selection in decades. Add one more merit-selection change and one more elimination to the list.

Oklahoma’s Senate yesterday approved SJR 21 and  SJR 24, constitutional amendments that would effective change the state’s merit selection system into a quasi-federal one. In addition, the Senate approved a plan to take away the state supreme court’s power to name its own chief justice.

SJR 21 would outright eliminate merit selection for the state’s appellate courts, allowing the governor to pick any qualified person for appointment. The appointment would be subject to review by the Judicial Nominating Commission, but that review would be just that, a review. The JNC would have no power to stop the appointment and no input prior. The JNC’s recommendation would be sent to the Oklahoma Senate, which would vote to confirm the governor’s pick. The Senate would then vote to confirm, or be called into special session once a quarter to confirm the nominee.

SJR 24 appears to contemplate SJR 21 NOT being adopted (i.e. that merit selection survives in Oklahoma). SJR 24 allows the state’s appellate court judges to sit for a single 20-year term. Currently appellate judges in the state are selected via a merit selection system and stand for yes/no retention elections every 6 years. Under SJR 24 the retention election portion of the state’s merit selection system would end and the judge would simply remain in office for 20 years. SJR 24 specifically does NOT alter the method of selection and specifies “No such person shall be required to be on a retention ballot during such twenty-year period.” However, were SJR 21 adopted, it could created a quasi-federal system (governor appoints, senate confirms, judge sits for long period of time) but because certain language in SJR 21 and SJR 24 are changed in different ways, it is unclear which would hold sway should both be adopted.

Moreover, SJR 24 is prospective and specifically deals with current appellate judges: they may serve their current 6 year term and 20 years on top of that.

SJR 24 must be approved by House before going on the 2014 ballot.

Finally SJR 22 would remove the Supreme Court’s power to name its chief justice. Currently 22 states allow the supreme court to picks it own chief, while another 7 operate on a strict seniority system (i.e. longest serving justice is chief). 12 states give the state’s governor some power to pick the chief, but no other state allows the governor the sort of unrestrained power considered by Oklahoma; other states require the governor’s selection be subject to a merit selection process and/or confirmation by the legislature.

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Plan to increase qualifications for West Virginia magistrate judges, rejected in 2012, back in 2013; many judges would still need only a GED

February 19th, 2013

I noted around this time last year that West Virginia has grappled for the last several years with the question of qualifications for the state’s Magistrate Court judges. Current West Virginia law (§50-1-4) requires only that those seeking to be elected a Magistrate Judge have “a high school education or its equivalent.” Most efforts have focused not on law degree, but that the magistrate judges have at least a 2 or 4 year college degree.

In 2012, SB 108 sought a compromise:

  • newly elected appointed or elected magistrate judges would be required  to have an associate’s degree OR have served as a magistrate for at least 4 years
  • existing magistrate judges in office as of January 1, 2015 could still remain in office and be re-elected under the old high school diploma/GED provision

The bill advanced out of committee but failed on a 15-19 vote of the full Senate.

The proposal is now back in 2013 as SB 54 and is currently pending in the Senate Judiciary Committee.

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As more states try to require their judges be lawyers, Tennessee may move in opposite direction

February 19th, 2013

In the last several years, various states have moved away from the practice of allowing judges to be non-attorneys. Georgia, for example, in 2011 required all newly appointed or elected Municipal Court judges to be attorneys. In 2011 and 2012 Maryland’s voters approved constitutional amendments requiring at least some of their Orphan’s Courts have attorney-judges.

Tennessee’s HB 1320 and SB 1230 move in precisely in the opposite direction.

Existing laws require the judges of all the state’s courts be attorneys (judges serving prior to 1990 in some courts without a law license can continue to serve). HB 1320 / SB 1230 would provide that effective September 2013 the requirements would be repealed.

At the same time at least 4 states are considering requiring their judges be lawyers:

Indiana SB 295: City and Town Courts

Mississippi HB 633: Municipal Court

Montana HB 467: Justice of the Peace Courts that are courts of record

New Mexico HB 119: Metropolitan Courts

New Mexico SB 237: Probate Courts in counties with a population over 500,000

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Florida bill would raise mandatory judicial retirement age, but as in past efforts there’s a catch

February 14th, 2013

Earlier this week I noted several states that are trying to raise or eliminate the state’s mandatory judicial age. Florida may well be added to the list, but the plan in that state has a catch

Currently, Florida judges must retire at age 70, but may serve out the term in which they turn 70 if they’ve already completed at least half of the term. Constitutional amendments HB 747 /  SJR 570 would raise the age from 70 to 75, but only for judges elected or appointed after January 1, 2014.

Florida’s legislature has a history of offering up increases to the state’s mandatory retirement age with a catch (or two).

1996: One major wave of activity was in 1996. HJR 1415 and SJR 978 of that year would have allowed the legislature to increase the age to 72 (House) or any age (Senate), but would have also altered both the state’s merit selection system and  judicial qualifications commission membership and procedures. A version without the increase to the retirement age but allowing the merit selection commission to recommend up  to 6 people to the governor (rather than 3) went onto the ballot as Amendment 3. In addition, SJR 578 of the same year would have increase the age from 70 to 72 outright, but merged the state’s County Courts into the Circuit Courts.

2002: The next wave of activity again focused on tying the increase in age to changes to the merit selection system. HB 1465 and the similar HB 567 eliminated the retirement age, but ended merit selection for the state’s supreme court. SB 162 would also have eliminated the mandatory retirement age, but at the cost of ending merit selection altogether. SB 162 was approved by the Senate Judiciary Committee but died in the Senate Rules Committee.

2012: The latest wave of activity started last year with two bills. HJR 345 would have raised the age from 70 to 75. SJR 408 as introduced would have done the same but was committee amended to apply only for judges elected or appointed after a certain date (January 1, 2013 in that case). SJR 408 was approved by the full Senate on but died in the House.

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Effort to increase judicial retirement age fails for 7th year in a row in VA, faring better in other state legislatures

February 12th, 2013

It appears that for the 7th year in a row, an effort to increase the mandatory retirement age of 70 for Virginia’s judges will fail, but similar efforts in other states are showing signs of movement.

A full list of all such effort to eliminate mandatory judicial retirement from 1990-2010 is here.

A list of what states have what mandatory judicial retirement ages is here.

Hawaii: The history of Hawaii’s interest in increasing its judicial retirement age is a complex one. When the Democrat-dominated legislature faced the prospect in 2006 of having a Republican governor appoint new judges to the state’s courts, they swiftly put onto the ballot an effort to raise the retirement age. Numerous political leaders, including the Democrat Attorney General came out against it and the effort failed. In the last several years, however, the effort has been renewed. SB 886 of 2013, approved by the Senate Judiciary Committee on January 29, would increase the age from 70 to 80.

Indiana: SB 124, which would outright eliminate the mandatory retirement age of 75 for appellate judges, was approved by the Senate Judiciary Committee on February 7. Indiana in 2011 eliminated the mandatory retirement ages for its trial courts.

Michigan: SJR 5 of 2013 picks up where SJR 21 of 2012 left off in pushing for an outright elimination of the state’s mandatory judicial retirement age of 70. The 2012 bill, introduced late in that session, was approved by the Senate Judiciary in September 2012. The 2013 version has already re-passed the Senate Judiciary Committee on January 31.

North Carolina: HB 12 would increase the state’s judicial retirement age from 72 to 75 and is currently pending in the House Judiciary A Committee.

New York: The state legislature already approved in 2011 (SB 5827) an effort to increase the mandatory retirement age for the judges of top appellate court from 70 to 80 and to allow judges for the state’s main trial court to be certified for 2-year periods from age 70-80. SB 886 of 2013 is the second passage required for state constitutional amendments. If approved in 2013 or 2014, it would go to the voters on the 2014 ballot.

Pennsylvania: While lawsuits have been filed against the state’s existing mandatory retirement age of 70 as a form of age discrimination, SB 85 of 2013 would eliminate it legislatively. That bill is currently pending in the Senate Judiciary Committee. Update 2/13/13: A House version (HB 79) would up the age from 70 to 75. h/t to Pennsylvanians for Modern Courts for the pointer.

South Carolina: The effort to eliminate the judicial retirement age of 72 (SB 71) is pending in the Senate Judiciary Committee.

Virginia: Like prior efforts,  SB 740 / SB 762 of 2013 met with initial success and was approved by the full Senate on a 30-10 vote in January. However, the bill was assigned to the House Committee on Courts of Justice, Civil Subcommittee, which killed the bill on a 4-4 tie vote in 2012 killed it again in 2013 on a vote vote.

Washington State: HB 1266 / SB 5046 would allow district court judges only to serve out the term in which they read age 75 (currently they have to resign the end of that year). The House bill was approved by the House Judiciary Committee on February 5. The Senate version was approved by the full Senate 48-0 on January 30.

Wyoming:  I’ve noted the efforts here. In short the House has approved a plan (HB 167) to increase the mandatory retirement for supreme court and district court judges from 70 to 75 and imposes a mandatory retirement age for circuit judges at 75 (currently, they have none). This was after Senate leadership balked at the House’s original idea (HJR 1) to simply eliminate the mandatory retirement age.

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