The release of President Obama’s long form birth certification has for the most part diminished the interest in  such bills, but not completely eliminated it. Several remain pending, having been carried over from the 2011, while others are newly introduced for 2012.

SB 2205 / SB 2209

One of the particular pieces of angst expressed by governors and others with state merit selection systems is the limitation on the names submitted by the merit selection commission. Arizona’s SCR 1001, for example, expands the number of choices for the governor from “not less than 3″ to “not less than 8″ (a two-thirds majority can reject an applicant and submit less than 8). Other proposals have sought similar expansions.

That is what sets Hawaii’s proposed constitutional amendment SB 2205 apart. Currently, the state’s judicial nominating commission sends “not less than four, and not more than six” names to the Governor for vacancies on the Supreme, Intermediate Appellate & Circuit Courts. For the state’s limited jurisdiction District Courts, the Chief Justice selects “from not less than 6″ names.

SB 2205, however, reduces the selection down to 3 in all instances/courts. Senator Clayton Hill, the chair of the Senate Committee on Judiciary and Labor, stated that by reducing the number “you reduce the politics”.

A companion constitutional amendment, SB 2209, would require the judicial selection commission disclose the names of and other statistical information regarding active nominees and applicants to fill justice and judge vacancies (amendment language in bold)

The deliberations of the commission shall be confidential with the exception of disclosing the names of nominees and the names of applicants to fill any justice or judge vacancies.  The commission shall disclose the names of active applicants to fill a justice or judge vacancy at the close of each application period as well as statistical information that serves the public interest, including but not limited to the total number, gender, and experience of applicants.

This issue of gender diversity is one the Hawaii Senate is on record as being concerned by. SR 26 and SCR 37, both adopted by the Senate in 2010, recited a litany of statistics regarding the gender diversity of the state’s bench and “strongly urged” then-Governor Linda Lingle “to use and consider gender equality when appointing judges and justices in the future…”

SB 2206

In 2006 Hawaii’s (heavily Democratic) legislature suddenly became interested in increasing the mandatory retirement age for the state’s judiciary. It may, or may not, have been a coincidence that the interest occurred right when the first Republican governor in 5 decades was about to appoint several judges and justices who were being forced out of office due to the mandatory retirement age of 70. SB 995 of 2006 to simply eliminate the mandatory retirement age was rejected 2-1 by voters.

In 2012, with a Democratic governor in office, SB 2006 was introduced to amend the state’s constitution and allow judges and justices to serve until age 80. If approved by voters, it would give Hawaii one of the highest mandatory retirement age in the U.S. (Vermont judges can serve until the end of the year they turn 90).

Under its provisions, all judges/justices of the state’s top appellate courts (Supreme Court for civil matters; Court of Criminal Appeals for criminal ones) would be limited to 12 years in office.

As of the effective date of this act, no Justice shall serve on the Supreme Court for a period of more than twelve (12) years…

As of the effective date of this act, no judge shall serve on the Court of Criminal Appeals for a period of more than twelve (12) years

Given that the judges/justices serve for 1 year or so initial terms (after merit selection appointment) and 6 years in subsequent terms, this would effectively limit them to only 1 initial term, 1 full term and a portion of a second full term.

Given that the effective date of the law is November 1, 2012, the effect would be to remove 2 of the 9 justices of the state’s Supreme Court: Justice Yvonne Kauger (appointed in 1984 and up for a retention election November 6) and Justice Joseph Watt (appointed in 1992).

The impact would be even greater on the Court of Criminal Appeals and could potentially clear the court entirely:

• 2 of that court’s 5 judges, Judge Charles Johnson (appointed 1989) and Judge Gary Lumpkin (appointed 1988) would be out of office effective November 1, 2012.
• The 3 remaining judges (Arlene Johnson, David B. Lewis, and Clancy Smith) are up for retention elections 5 days later on November 6, 2012. If they all lost (a possibility, given that Iowa saw 3 of its Supreme Court justices lose their retention election in 2010, all on the same day) the effect would be to empty the court.

SB 1729 has been prefiled with the legislature set to come into session February 6.

SCR 1001 of 2011 was approved in April, before the state’s Supreme Court overturned an effort by the state’s governor and senate to remove from office the chair of the state’s redistricting commission.

Early indications are that SCR 1001 may now be taken off the ballot and replaced with something different. Already introduced by the chair of the Senate Appropriations Committee is SCR 1034 of 2012, a constitutional amendment to outright end merit selection in the state. In addition to ending the state’s merit selection system, it would also undo the provisions of SCR 1001 extending judicial terms and mandatory retirement ages.

The amendment is currently pending in the Senate Judiciary Committee.

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.”

Several attempts have been made in the last three years to increase that minimum education requirement, with odds looking promising for 2012.

In 2009, HB 2840 and SB 609 would have required all magistrates have a baccalaureate degree from an accredited college or have four years of experience as a magistrate. Neither advanced out of committee.

In 2010, SB 495 repeated the 4-year-degree or 4-years-experience language of the 2009 bills and like them failed to advance. HB 4292 set a different standard and fared better. Under it, new magistrates would have to have a bachelor’s degree or two years’ experience. Those already holding office could remain as magistrates under the old high-school-only requirement. That plan advanced through the House but died in the Senate.

2011 saw a flurry of activity. The session started with a plan (HB 2540 and SB 195) to allow for three options for new magistrates:

• A bachelor degree from an accredited college
• An associate’s degree in criminal justice from an accredited college, or
• A minimum of four years of experience as a magistrate

Current magistrates with only a high school education could remain in office. This plan met with Senate approval and House committee approval, but died on the House floor. Additionally, SB 412 added yet a fourth option: 10 years of certified experience as a law enforcement officer. It went nowhere.

Coming into 2012, SB 108 picks up where HB 2540 / SB 195 of 2011 left off and is currently assigned to the Senate Judiciary Committee.

Florida’s Constitution specifies in Art. V, Sec. 8 that judges must retire at age 70, but may serve out their current term if they have already served roe than 50% of it.

No justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served.

SJR 408 changes the bolded text to read “seventy five”. It also makes some grammatical corrections (changes “No justice or judge…” to “A justice or judge…”)

The video below gives some of the pros and cons heard at the committee hearing. In the end, the bill passed 5-0 and was sent to the Senate Budget Committee.

This year the two vehicles are HB 163 and SB 95 with both raising the retirement age from 70 to 73 and eliminating the special provisions related to the Corporation Commission. Earlier this morning the Senate Committee on Courts of Justice approved its version on an 11-3 vote. The House Committee on Courts of Justice, Civil Subcommittee is set to vote on it later this afternoon. This vote is critical as it was the civil subcommittee which killed the House version last year on a 5-5 tie vote (with 1 abstention). This year’s subcommittee may be more welcoming. Of the 9 members of the 2012 committee, 4 voted in favor of the 2011 plan, 2 voted against and 1 abstained. Assuming those 7 delegates vote the same way, that leaves the decision to two delegates first elected in 2011.

Update 1/16/12 @ 5:29 PM – The two newly elected delegates voted against, resulting once again in the bill’s failure to pass due to a tie vote (4-4, 1 abstention).

Details of prior years efforts below the fold.

• Outright removal of existing retirement ages for all judges: SB 5147 & SJR 8204 (Constitutional Amendment)
• Allows all judges to retire at the end of the term of office after attaining age 75: SB 5323 & SJR 8200 (Constitutional Amendment)
• Allows District Court Judges only to retire at the end of the term of office after attaining age 75 (prior post here): SB 6025

Meanwhile, Arizona moved to put an increase on its ballot in 2012. This provision was added at the last minute as a “sweetener” (along with extended terms) to a larger bill that would make large scale changes to the way the state’s judiciary is selected/elected/appointed.

A more focused effort was New York’s SB 5827, which would extend retirement, but only for the state’s top court, from the end of the year a judge turns 70 to end the calendar years the judge turns 80. The measure requires re-adoption by 2013-2014 legislature before submission to public vote.

Finally Indiana HB 1266 repealed or otherwise removed all provisions that establish a mandatory retirement age for superior court and county court judges.

• Missouri HB 111 Increases from 75 to 78 mandatory retirement age for municipal judges. Approved by House, defeated in Senate.
• Virginia HB 1497 / SB 1066 Increases from 70 to 73 mandatory retirement age for municipal judges. Approved by Senate, defeated in House

Under the constitutional amendment (CACR 25) the two courts would no longer be specifically established by the state’s constitution, allowing them to be disbanded and reestablished (with new judges) based on passage of a simple statute. As a technical matter, it would repeal Article 72-a,  a 1966 amendment to the state’s 1784 constitution that added the following:

The judicial power of the state shall be vested in the supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish under Article 4th of Part 2.

One co-sponsor argues to the Huffington Post this amendment would allow for a legislative check on the judiciary that he feels has been absent since the 1966 amendment. Another proponent cites prior state Supreme Court rulings on education funding saying “With certain issues they have not taken direction from the legislature.” He argues the ability to disband the courts is necessary to give them “legislative direction on certain issues”.

Full disclosure: I am cited in the Huffington Post article as follows:

Bill Rafferty [sic], an analyst for the National Center for State Courts, said both proposals were unusual. There have been no proposals in recent years to raise the minimum judicial age, but there have been pushes to raise the retirement age for state court judges, he said. Many states require judges to retire at 70.

Unusual indeed. If adopted, New Hampshire would be the sole state without a court of last resort specified in its state constitution.

Moreover, when states have either adopted new constitutions or created new courts of last resort, they have rarely simply disbanded the court and ejected the existing judges/justices. Much more typical is what occurred in the spate of new constitutions adopted in the 1970s and early 1980s: justices of the pre-existing court of last resort were carried over onto the new court and/or allowed to serve out their existing term and then be elected/appointed to the new court.

• Georgia (1983 Constitution) Each judge holding office on the effective date of this article shall continue in office until the expiration of the term of office, as a judge of the court having the same or similar jurisdiction.
• Louisiana (1974 Constitution) A judge serving on the effective date of this constitution shall serve through December thirty-first of the last year of his term or, if the last year of his term is not in the year of a regular congressional election, then through December thirty-first of the following year. The election for the next term shall be held in the year in which the term expires, as provided above.
• Montana (1973 Constitution) Supreme court justices, district court judges, and justices of the peace holding office when this Constitution becomes effective shall serve the terms for which they were elected or appointed.
• North Carolina (1971 Constitution) Except as otherwise specifically provided, the adoption of this Constitution shall not have the effect of vacating any office or term of office now filled or held by virtue of any election or appointment made under the prior Constitution of North Carolina and the laws of the State enacted pursuant thereto.
• Virginia (1971 Constitution) Unless otherwise provided herein or by law, nothing in this revised Constitution shall affect the oath, tenure, term, status, or compensation of any person holding any public office, position, or employment in the Commonwealth, nor affect the date of filling any State or local office, elective or appointive, which shall be filled on the date on which it would otherwise have been filled…The requirement of Article VI, Section 7, that justices of the Supreme Court and judges of courts of record shall, at least five years prior to their election or appointment, have been members of the bar of the Commonwealth, shall not preclude justices or judges who were elected or appointed prior to the effective date of this revised Constitution, and who are otherwise qualified, from completing the term for which they were elected or appointed and from being reelected for one additional term.
• Illinois (1970 Constitution) All officers filling any office by election or appointment shall continue to exercise the duties thereof, until their offices shall have been abolished or their successors selected and qualified in accordance with this Constitution or laws enacted pursuant thereto.

The last time I can find of a state disbanding its court of last resort and, in effect, firing all the existing justices was New York in 1869 and then the court was disbanded only because a) it was grossly behind in its docket and b) since half its membership was trial judges, it meant that trial judges were sitting on appeals from their own decisions below (See page 13 of this history of the New York courts). Even then the judges of the older court were not simply shown the door; the 4 members of the pre-existing court elected statewide were established as a “Commission on Appeals” to finish up the cases on their docket.