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Hawaii legislative committee approves plans to revise state’s merit selection system, gender diversity on the bench, retirement ages

January 30th, 2012

Hawaii may very well join Arizona and Florida in putting forth revisions and revamping of their respective state’s merit selection systems for judicial selection in 2012. On Friday, January 27 the Senate Committee on Judiciary and Labor held hearings and unanimously approved a variety of constitutional amendments related to judicial selection and mandatory retirement ages for judges.

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).

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Vote to change way Wisconsin picks its chief justice is now back on committee agenda

January 27th, 2012

In early January I noted an expected vote in the Wisconsin Assembly Committee on Judiciary and Ethics on a plan to change the way the state’s chief justice was selected (currently, most senior justice serves). I also noted the near last-minute cancellation of that vote.

The latest agenda for that Assembly committee, however, indicates the vote is now back on for Thursday, February 2.

 

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Despite already passing ballot item for 2012 election, Arizona legislature takes up debate over judicial elections/merit selection again

January 27th, 2012

2011 proved highly contentious when it comes to judicial elections. One state that had presumably settled the issue (legislatively speaking) was Arizona, which sent to the November 2012 a proposal to revise the state’s merit selection system, increase judicial terms, and increase the mandatory retirement age for judges.

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.

 

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New public financing systems for judicial elections to be considered in Kentucky, Ohio & Wisconsin

January 18th, 2012

While much of the election focus for the 2012 will be on the Presidential races, numerous states will be electing members to the courts. At least three state legislatures are considering joining (and in the case of Wisconsin, rejoining) the list of states that allow for public financing of at least some of those judicial races.

I’ve mentioned Kentucky’s unique position: in 2014 the entire judiciary (save one or two judges) will be on the ballot. Over the last several years members of the state’s legislature have proposed public financing for the races, delivering speeches on the subject during the interim and trying to gather support.  A 2012 version (HB 230) specifies the funding would come from state tax refund designations made on tax forms and by permitting (but not requiring) bar members contribute via their bar dues.

Wisconsin had a public financing system for its supreme court races but it was zeroed out in the latest budget. A new plan, one that would include most state-level elected officials, was introduced in Fall 2011. Under AB 317 and SB 213 taxpayers could designate $1 of their state income taxes to an Election Campaign Fund. Whatever funds are in the Fund would be all that was available for that particular election year(s).

Ohio’s HB 413 focuses on creation of a public financing program for supreme court races only in that state, but does include a trigger provision allowing for expansion to include races for court of appeals if the fund ever reaches $6 million. Funding would come from a designation of tax refunds on tax forms.

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Vote to change way Wisconsin picks its chief justice cancelled

January 11th, 2012

The planned Thursday vote on changing the way Wisconsin picks its chief justice has now been cancelled with no indication as to why or when (if?) the plan will come back up for a vote.

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Posted in Selection, Structure Changes

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Florida House and Senate bills tie judicial retirement benefits & funding to changes to state merit selection system

January 10th, 2012

I mentioned yesterday the Florida Senate plan to tie funding for the state courts to a revocation of judicial immunity and changes to the state judicial disciplinary commission. Carrying on the linkage pattern is HB 971 and the similar SB 1570. Rather than tying funding to allowing for judges to be sued personally for their decisions, the bills tie judicial retirement benefits to changes to the state’s merit selection system.

Both bills address the impact on retirement benefits for those judges already in retirement but called back into temporary service by the Chief Justice. In sum, the bills would provide such temporary assignment does not affect eligibility for benefits under the Florida Retirement System.

The bills then, in differing ways, alter the composition and membership of the state’s judicial nominating commissions.

HB 971, on the House House Judiciary’s Civil Justice Subcommittee agenda for January 11, removes a requirement that attorneys nominated by the Board of Governors of The Florida Bar and appointed to judicial nominating commission(s) by the governor be “engaged in the practice of law”. The bill then specifies appointments to a judicial nominating commission, except an appointment to fill a vacant, unexpired term, are for a set 4 years and specifies that acts of judicial nominating commissions must be made with concurrence of majority of its current members.

SB 1570 goes even further in changing merit selection in the state. It provides that, with the exception of members selected from a list of nominees provided by the Board of Governors of The Florida Bar, a current member of a judicial nominating commission appointed by the Governor serves at the pleasure of the Governor. Moreover, the provision appears to be retroactive (“Notwithstanding any other law, each current member of a judicial nominating commission appointed by the Governor, other than those selected from a list of nominees provided by the Board of Governors of The Florida Bar, shall serve at the pleasure of the Governor”) allowing current governor Rick Scott to remake the state’s judicial nominating commissions at any time. In this, it nearly parallels a similar 2011 effort (HB 7101) passed on a party line vote in the House that would have made the terms of all commission members the same as the Governor.

Moreover, even those members of the commissions nominated by the Board of Governors of The Florida Bar could more easily be removed. SB 1570 repeals a provision that commission members may only be removed for cause “pursuant to uniform rules of procedure established by the Executive Office of the Governor”.

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Posted in Rule Making Authority, Salary & Budget, Selection

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Wisconsin Assembly committee will vote on plan to change way chief justice is elected

January 9th, 2012

Wisconsin’s Assembly Committee on Judiciary and Ethics is set to vote on Thursday on a constitutional amendment that would end the state’s practice of having the most senior justice of the state’s supreme court serve as Chief Justice.

Under AJR 49 and SJR 36 the court’s justices would chose among themselves after every election to determine who would serve as chief. At a December 15 hearing, the lead proponent of the bill admitted that he had not spoken with anyone on the court, court staff, or the state court administrator about whether or not they wanted the change and did not indicate if he intended on speaking to the justices or court staff prior to the vote (see video from 1:35:00-1:37:30).

Video of the hearing, if available, will be found here.

 

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Posted in Selection, Structure Changes

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Indiana Senators, angry over state supreme court decision, look to take up efforts to alter or end merit selection, judicial disciplinary commission

January 6th, 2012

I noted back in June 2011 several members of the Indiana legislature were angered by an Indiana supreme court decision on the right of a homeowner to stop with force an unlawful entrance by a police officer. Several legislators indicated they would attempt to change the state’s merit selection system as a result. The court, in a September order granting rehearing, clarified some elements of their earlier decision, but the angst failed to melt away.

The first efforts to alter the state’s merit selection system have now been filed. SJR 13 of 2012 repeats almost verbatim SJR 1 of 2005, a previous effort to change merit selection that was approved by the state’s Senate in that year. The constitutional amendment:

  • Renames the judicial nominating commission as the commission on judicial nominations and qualifications.
  • Provides that one commission member will be selected by attorneys licensed in Indiana, one commission member will be appointed by the speaker of the house of representatives, and one commission member will be appointed by the president pro tem.
  • Requires at least one commission member appointed by the governor to be an attorney
  • Prohibits a person who is a registered lobbyist from serving on the commission.
  • Provides for the governor to fill a vacancy on the supreme court or the court of appeals from nominees recommended by the commission on judicial nominations and qualifications, subject to confirmation by the senate.
  • Provides that a justice of the supreme court and a judge of the court of appeals serves until July 1 of the tenth year after the justice’s or judge’s appointment is confirmed by the senate or the justice’s or judge’s retention in office is confirmed by the senate.
  • Provides that if a justice or judge wants to serve a new term, the justice or judge must apply to the senate for retention.
  • Specifies that a judge or justice will be retained, unless: (1) the judge or justice does not apply to the senate for retention; and (2) at least 60% of the members of the senate vote against retention.

While SJR 13 would make changes to the state’s merit selection system, SJR 14 goes even further, ending appellate merit selection, restructuring the state’s judicial disciplinary committee (the commission on judicial qualifications), and allowing judicial candidates to speak, participate in partisan activities, and act like candidates for other offices. Specifically, it provides:

  • End merit selection and replaces with gubernatorial appointment with senate confirmation.
  • Requires appellate judges receive 60% of retention election vote to remain in office.
  • Provides that a law, judicial rule, decree, or order may not abridge the freedom of a judge, lawyer, candidate for judicial office, or any other person from: (1) speaking, writing, or otherwise expressing the person’s views freely regarding a political issue, political party, or candidate for office, including a candidate for a judicial office; or (2) making a donation of money, services, or property to a political party or a candidate for office, including a candidate for a judicial office.
  • Specifies the 3 members of the state’s commission on judicial qualifications chosen by the Governor may not be attorneys.
  • Grants the legislature alone the power to set terms for commission members, their compensation, and the manner they are elected.

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New Mexico considers special judicial nominating commission fund

January 6th, 2012

Judicial nominating commissions are a, if no the, defining element of merit selection systems such as the one in New Mexico. Many states simply establish that the funds for the commissions will be provided by the legislature to the judicial branch. For example, Colorado’s C.R.S. 13-3-103(2) reads,

The mileage and expenses incurred by members of judicial nominating commissions and members of the commission on judicial discipline shall be paid from funds appropriated to the judicial department of the state. Each commission member shall keep an account of the mileage and all moneys actually paid out for personal maintenance expenses and shall file a verified itemized statement thereof with the court administrator, who shall audit the same and submit it to the state controller. The state controller shall draw a warrant therefor, which warrant shall be paid by the state treasurer out of the appropriate fund.

New Mexico, however, is considering creation of a special fund to pay for that state’s judicial nominating commissions. SB 24 would put the new fund under the administrative control of the state’s Administrative Office of the Courts. A key element would be that money in the new fund would not revert to the state’s general fund every year, but would be subject to appropriation by the legislature. In addition, SB 28 appropriates $50,000 to the fund for FY 2012 to start the new fund off.

The bill has been prefiled in anticipation of the January 17 start of the New Mexico legislature’s 2012 session.

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2011 Year in Review: Merit selection is dead (long live merit selection)

December 29th, 2011

Judicial selection in general has been a bone of contention both for the Federal and state legislatures recently and no particular method of selection has been the subject of more scrutiny than merit selection. Yet while there have been several pushes to change substantially, or outright end, various merit selection systems there has been a substantial push in other states to adopt just such a judicial selection methodology.

End

Kansas’ HB 2101 initially replaced merit selection for the state’s Court of Appeals with a true federal system of executive appointment, Senate confirmation, and life time tenure. However, a provision of the state’s constitution prohibited life time terms and thus the version approved by the House removed the life tenure provision.

Oklahoma’s Senate also approved a plan (SJR 36) to simply end it and allow the governor to appoint any qualified person with senate confirmation.  Although the proposal flew through the Senate, it went nowhere in the House.

Finally, Tennessee is facing the possibility of legislative ending of their merit selection system by default. The existing system starts to sunset in 2012 and the legislature has to reauthorize the system.

Expand

Indiana’s HB 1266, a huge new law that reshaped much of the state’s judiciary statutes, included a provision to expand merit selection to the four judges of the Lake Superior Court, County Division.

Although Indiana’s was the only successful expansion, several efforts were made, some of which may bear fruit in the 2012 cycle.

Tweak/Modify

Arizona had several efforts made to alter its merit selection system. SCR 1040 would have (among other things) ended retention elections and replaced with Senate confirmation/reconfirmation. SCR 1045 would have removed the requirement that attorney members are nominated to the Governor by the Arizona State Bar as part of the Commission appointment process. Both passed the Senate but failed in the House. What did ultimately meet with House approval and will appear on the 2012 ballot is SCR 1001:

  • Qualifications & Terms- Increases to 8 years the term of office for Supreme, Court of Appeals, and Superior Court judges starting in 2013. Increases the judicial retirement age from 70 to 75 years old.
  • Appellate and Trial Court Commissions- Removes the requirement that attorney members be nominated by the Board of Governors of the Arizona State Bar. Establishes that four attorney members are appointed by the Governor and one member be appointed by the President of the State Bar. Requires, upon an attorney member vacancy, the Arizona bar to solicit, review and forward to the Governor all applications and recommendations for appointment. Increases the time period attorney members must be admitted to practice from 5 to 10 years. Specifies that attorney members must be in good standing with the state bar, have no formal disciplinary complaints and have never been formally sanctioned as a result of disciplinary action. Requires the Commissions to submit at least eight nominees, rather than three, to the Governor to fill a vacancy in the office of a justice or judge of the Supreme Court, Appellate Court or superior court. Permits the Commissions to reject an applicant and submit less than eight nominees, unless the applicant receives a two-thirds vote. Requires the Commissions to nominate any applicant who receives a majority vote. Requires, if more than one vacancy exists in the same court at the same time, the Commissions to submit the names of at least six persons nominated to fill each vacancy and prohibits the submission of the name of the same person for more than one vacancy. Permits the Governor to make an appointment from any of the nominees presented for any of the vacancies in that court, if more than one vacancy exists in the same court at the same time.
  • Supreme Court- Must make available through its website, every written opinion or order that is issued by a judge of a court of record that resolves a contested matter of law and that is not sealed or confidential. Must transmit a copy of the judicial performance review of each justice and judge who is up for retention to the Senate President and the Speaker of the House of Representatives at least 60 days before the regular primary election.
  • Legislature- Permits a joint legislative committee consisting of the Senate and House Judiciary committees to meet and take testimony on the justices and judges who are up for retention at least 60 days prior to the general election.

Florida‘s HJR 7111, while initially introduced in order to split the state’s supreme court, was heavily amended. the version appearing on ballot in 2012 would require Senate confirmation of Supreme Court appointments, allow the legislature to reject Supreme Court rules by a majority vote, and give legislators access to judicial misconduct investigations. The proposal must be approved by 60% of voters.

Iowa‘s HB 242 was a relative minor revision approved by that state’s House. The bill would have required the governor appoint at least one district Judicial Nominating Commission member from each county unless there are fewer counties than commissioners. Given that the commissions are five member panels, and only Judicial District 7 is a 5-county district, this has the effect of prohibiting any district nominating commission from having more than two members from the same county.

In addition to trying to end its merit selection system (see above), Oklahoma SB 621 would have changed the merit selection system. Although it would not directly impact merit selection commissions or retention elections, the constitutional amendment would have required any judicial appointment be confirmed by a majority of the Senate. Although the proposal flew through the Senate, it went nowhere in the House.

Rhode Island’s HB 6242 / SB 686 makes any individual whose name was publicly submitted to the governor by the judicial nominating commission, eligible for subsequent nomination by the governor until June 30, 2012. This is an extension of a prior law that allowed for extended eligibility that was about to sunset.

Utah SB 212 allows the Judicial Performance Evaluation Commission to vote in a closed meeting on whether or not to recommend that the voters retain a judge. It removes litigants from the judicial performance evaluation survey and reduces the number of categories to be included in the performance evaluation survey.

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Posted in Selection, Special Edition