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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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Did Kansas Senator threaten funding for courts if judges didn’t accept change to merit selection? Similar efforts occurred in FL in 2011.

May 15th, 2013

I’ve mentioned over the last two years the numerous efforts by Kansas Republicans to change the merit selection system used for the state’s appellate courts. Efforts to change it by statute for the Court of Appeals was approved earlier this year, but GOP members have not gotten the 2/3rds of the House needed to change it for the Supreme Court.

Now comes word from the state’s Chief Justice that the Senate Judiciary chair and prime sponsor of the change away from merit selection attempted to link court funding to the changes (h/t to Gavel Grab for the pointer). A Topeka Capital Journal article details the accusation and denials.

If the Kansas Senate did attempt to link changes to judicial selection with court funding, it would not be the first time. When Florida attempted to change not only merit selection but the structure of the supreme court itself (splitting it into two courts) those seeking to end merit selection was tied with a constitutionally guaranteed 2.25% appropriation of general revenue funds.

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Movement on changing judicial selection in Texas House and Senate

May 9th, 2013

Not to pick on Texas two days in a row, but the state’s House and Senate are both moving on judicial selection at a rapid clip.

On May 3 the Senate State Affairs Committee approved SB 103, a law that would end straight ticket voting for the state’s judicial offices. As I mentioned, the state’s Chief Justice has been asking for an end to the practice for years and the use of straight ticket voting has been cited as a reason for entire counties to clear their bench (i.e. remove all Democrats for Republicans or all Republicans for Democrats) in the last several years.

The other piece of legislation was HB 2772, approved May 2 by the full House. The bill directs the creation of a committee to examine judicial selection in the state. Specifically the committee is to look at

  1. lifetime appointment
  2. appointment for a term
  3. appointment for a term, followed by a partisan election
  4. appointment for a term, followed by a nonpartisan election
  5. appointment for a term, followed by a nonpartisan retention election
  6. partisan election for an open seat, followed by a nonpartisan retention election for incumbents
  7. any other method or combination of methods for selecting district judges and appellate judges and justices.

The committee is made up exclusively of members of the legislature

  • chair of the senate jurisprudence committee
  • chair of the senate criminal justice committee
  • four senators appointed by the lieutenant governor
  • chair of the judiciary and civil jurisprudence committee of the house of representatives
  • chair of the criminal jurisprudence committee of the house of representatives
  • four members of the house of representatives appointed by the speaker of the house of representatives

The committee would have until January 6, 2015 to come up with a recommendation.

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Merit selection update: TN still a mystery; repeal in OK appears dead for 2013; effort to adopt advances in MN; AZ increases number of names

April 9th, 2013

With legislatures starting to wind down for 2013, efforts to adopt, modify, or end merit selection are up against key deadlines

1) On April 5 Arizona’s governor  signed HB 2600, a bill to require the state’s merit selection commissions submit at least 5 names to the governor to pick from (the constitution provides at least 3 names must be given).

2) Minnesota’s SB 1082, an effort to adopt merit selection for all judicial offices (currently in place for interim appointments for trial court judges only), advanced in the Senate Judiciary Committee on April 2.

3) The Oklahoma Senate’s effort to repeal merit selection (SJR 21) appears set to fail in the House for 2013.  Oklahoma House Rules require all Senate bills & joint resolutions, like SJR 21, be approved by the assigned House committee by April 11. However, the House Judiciary Committee has not put it on its agenda for today (April 9) and the House committee calendar for this week indicates the House Judiciary will not meet again before the April 11 deadline.

Death for SJR 21 in 2013 does not mean it is over for the Oklahoma legislature altogether. Under House Rule 6.9 SJR 21 will be back in the House Judiciary Committee at the start of the 2014 session.

4) It still remains unclear what, if anything, is going to happen in Tennessee, but whatever happens we’ll know in the next 24 hours.

I discussed the problem in depth here, in short the elements of the existing merit selection system: the nominating commission (JNC) and performance evaluation commission (JPEC) are set to expire. The JNC is set to end this year (June 30, 2012 + 1 year “wind down” period = June 20, 2013) and the JPEC in 2014 (June 30, 2013 + 1 year to “wind down”).

There are a great many moving parts, but the main sticking point occurred in March when an unrelated bill (SB 1058) was gutted and replaced with a major overhaul to the JPEC. Under the amendment the existing evaluation commission and all its members would be ended, a new JPEC installed and the new commission would have the power to not only change the criteria for “judicial performance” but allowed to block judges it deems not qualified from even getting on the ballot (currently the commission can recommend against retention but cannot actually stop the judge from trying). Proponents argue that because retention elections have failed to remove judges except one in the past, the JPEC should be allowed to do so.

Retention elections are set for November 2014 for all current Supreme Court, Court of Appeals and Court of Criminal Appeals judges.

A list of all the Tennessee JNC/JPEC extension bills are below.

Bills Provisions Hearings/Status
HB 364 / SB 215 Extends the judicial nominating commission until June 30, 2015. Senate Government Operations on 4/10/13
HB 695 /SB 216 Extends the judicial performance evaluation commission until June 30, 2015. House Government Operations Committee hearing on 4/9/13; Senate Government Operations hearing on 4/10/13
HB 796 Extends the judicial nominating commission until June 30, 2014. Approved as amended by full House 2/21/13.
SB 566 (counterpart HB 796 as originally introduced) Extends the judicial nominating commission until June 30, 2013. Senate Government Operations hearing on 4/10/13
HB 835 /SB 567 Extends the judicial performance evaluation commission until June 30, 2014. Approved by full House 3/18/13. Senate Government Operations hearing on 4/10/13.
SB 1058 (no House counterpart) AS AMENDED: Removes all judicial performance evaluation commission members. Replaces with 9 members, none of whom are judges (currently there must be 3 out of 9). Provides new JPEC allowed to rewrite any existing evaluation criteria (current criteria are set by Supreme Court Rule 27). Provides if JPEC recommends against judge, judge is not allowed to run for retention election (currently may run even if JPEC recommends against). Approved as amended by Senate Judiciary Committee 3/12/13. Senate Government Operations hearing on 4/10/13.

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New Mexico’s governor vetoes bills on judicial pensions, public financing of judicial elections

April 9th, 2013

New Mexico Gov. Susana Martinez has issued several vetoes affecting the state’s judiciary in the last several days (h/t Gavel Grab for the pointer).

On the pension side, Gov. Martinez vetoed SB 25, which would have changed the age and service credit requirements and pension calculations for the judicial retirement system and magistrate retirement system. SB 25 altered cost of living adjustments, employee and employer contribution rates, and provided a new benefit structure starting in July 2013.

In her veto message Gov. Martinez noted

Although there is no doubt that these funds are in dire condition, this legislation does not fairly or adequately solve the problem. Instead, this bill seeks to address the deficiencies in the judicial retirement fund through an increase in taxpayer contributions while failing to address the serious challenges facing the magistrate retirement fund. Even with optimistic projections, this plan only delays the magistrate fund’s eventual bankruptcy.

The second veto of note was of changes to the state’s public financing for judicial elections (SB 16), changes made necessary because of the U.S. Supreme Court’s decision in McComish v. Bennett. SB 16 ended the practice of basing matching funds on the spending of a non-qualified opponent and instead based it on the amount of contributions collected by a qualified candidate.

In her veto message Gov. Martinez doubted the constitutionality of the new scheme and also opened up the possibility of reexamination of the state’s judicial selection system (a form of merit selection combined with partisan elections).

[I]t is entirely unclear that this proposed legislation is constitutional and allowing publicly-financed candidates, including judges, to raise an unlimited number of $100 contributions flies in the face of the intent of the law.

We need a broad, ground up reform of the entire judicial election system. We have the unusual procedure of using a bi-partisan judicial nominating commission process with an immediate open partisan election system. I encourage the Legislature to consider broadly reforming our election system when it comes to judges and am willing to address the issue of public-financing reforms in that overall context.

Because New Mexico’s legislature has adjourned sine die there appears to be no way to override the vetoes unless the legislature calls itself back into extraordinary session.

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Arkansas legislature will alter judge’s ability to identify themselves on the ballot as a judge

April 9th, 2013

The Arkansas House yesterday approved SB 694, a bill limit a judicial candidate’s ability to refer to themselves as “Judge X Y” on the ballot. This bill has an interesting history in that when it came up in 2011 many members of the Arkansas Senate left the chamber rather than having to vote on it.

Under current law, anyone who is an elected judge may refer to themselves as “Judge X Y” on the ballot (Arkansas Code § 7-7-305(c)(1)(A) & (B))

Any person who shall file for any elective office in this state may use not more than three (3) given names, one (1) of which may be a nickname or any other word used for the purpose of identifying the person to the voters, and may add as a prefix to his or her name the title or an abbreviation of an elective public office the person currently holds. A person may use as the prefix the title of a judicial office in an election for a judgeship only if the person is currently serving in a judicial position to which the person has been elected.

SB 694 as amended creates two ways in which a person can identify as “Judge X Y”

  1. If the person was elected to any judicial office they can identify as “Judge X Y” in any judicial election
  2. If the person was appointed to a judicial office, they may identify as “Judge X Y” only in judicial elections for a Circuit Court or District Court judgeship and only if they served as a Circuit/District Judge for at least 12 months.

SB 694 now goes to the governor for his signature or veto.

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In a re-run of a 2008 effort, Indiana House rejects amendment to unrelated bill to end merit selection in St. Joseph County

April 3rd, 2013

Earlier this week the Indiana House rejected a floor amendment to an unrelated bill that would have ended merit selection in St. Joseph’s County (h/t Gavel Grab). For long time readers, this may be déjà vu, because the exact same thing was attempted in 2008. House floor amendment #3 offered to SB 518, a bill making mostly technical changes to the state’s election laws (the title is “Various election law matters”). According to the South Bend Tribune (the House’s Journal is no online yet) the amendment failed 26-64.

As I noted, this exact scenario occurred in 2008, so some background is in order.

Only a few trial courts in Indiana use merit selection, some of which are in St. Joseph County. In 2007 two bills were introduced, one to end merit selection for St. Joseph County in particular (HB 1571) while the other covered St. Joseph & Lake Counties (HB 1341).

When these bills failed proponents changed tactics in the 2008 session. Rather than introducing or re-introducing the 2007 bills, they tried to add repeal of merit as amendments to other bills. Specifically, they introduced House amendment #1 and House amendment #2 to SB 329 of 2008, a bill changing the state’s pension plan for judges. The House rejected amendment #1 on a 45-49 vote, but the final version of the bill that came out of a House/Senate conference committee directed the state’s Commission on Courts to study the method of judicial selection for St. Joseph County and report to the Legislature by November 1, 2008.

That report came out with a 7-2 vote in favor of merit selection in St. Joseph County and 9-0 for expanding merit selection to cover some judges in Lake County not already covered.

*The current merit selection system for St. Joseph Superior Court judges has attracted outstanding lawyers to seek and assume judicial careers and has provided those men and women with the ability to rule in a fair and impartial manner without fear of partisan retaliation for their decisions.

*The merit selection system holds these judges accountable to the people of their community for their professional and personal behavior.

*In calling on the General Assembly to provide for the merit selection of judges, Governor Roger Branigan in 1964 said that the State should “offer to the judges … the promise of reasonable tenure if they perform well, and which will insure them, to the fullest extent possible, freedom from political pressures. The current system for selecting and retaining St. Joseph Superior Court judges achieves the objectives set out by Governor Branigan in 1964.

In what was then an unrelated vote, the same Commission on Courts also recommended creation of a Sixth District of the Court of Appeals.

In the 2009 legislative session an attempt was once again made to end merit selection in St. Joseph County (HB 1491). This version did pass the House, 88-3. However, the Senate added an amendment creating a Sixth District of the Court of Appeals and letting the current Governor pick all the judges of the court via the state’s merit selection system.

Governor Mitch Daniels vetoed the bill and praised merit selection in St. Joseph County.

The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded. It is not broken; it requires no repair. It has produced outstanding jurists and contains sufficient measures of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County.

Daniels was also not pleased with the attempt to tie the repeal of merit selection to giving him more picks on the Court of Appeals.

Moreover, if I were to sign a bill linking these two proposals, it could contribute to public cynicism by creating the appearance that my acquiescence was purchased with more appointments. Whatever the merits of expanding the Court of Appeals may be, they should be considered alone

From 2009-2013 the efforts to repeal merit selection in St. Joseph County went quiet until the latest amendment attempt. Interestingly, no stand-alone bill has been introduced to repeal merit selection in the county.

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Texas House Elections Committee & Senate State Affairs Committee consider ending straight-ticket voting for judicial races today

April 1st, 2013

The last several years have seen several instances of “bench clearing” in Texas: due to shifts in voting patterns entire courts full of judges of one party have been removed in a single election.

  • In 1994, almost the entire Houston (Harris County) bench was cleared as voters swept 41 of 42 Democrats out of office.
  • In 2006, it was Dallas County Republican judges that lost big.
  • In 2008, Harris County added a slew of Democratic Party backed judges, only to see a counter-sweep in 2010 as Republicans took all contested judicial races that year.

Even before the 1994 Houston sweep the Texas legislature had considered efforts to move judicial races off the straight ticket line, requiring that voters select judges individually and separately, but keeping them partisan elections. The efforts effectively died out between 2001 and 2009, at least some of that lack of interest can be attributed to efforts in the same time frame to shift from partisan to nonpartisan elections or some sort of merit selection.

End straight-ticket voting for all courts: HB 391 of 1997, HB 666 of 1999, HB 555 of 2001,SB 392 of 2009

End straight-ticket voting for all trial courts + court of appeals + law enforcement (sheriff & constable): SB 200 of 1993, SB 232 of 1995

End straight-ticket voting for all trial courts + court of appeals: HB 498 of 1993, HB 729 of 1995

SB 329 of 2009 was the only time the efforts even got out of committee. It stalled out on the Senate floor and was not reintroduced in the 2011 session.

In 2013, however, the bill has been introduced as SB 103 and is set for a hearing today (April 1) before the Senate State Affairs Committee.

A similar House bill, HB 1857 is also set for a hearing today before the House Elections Committee. HB 1857 is both broader and narrower than SB 103. Where SB 103 covers judicial races only, HB 1857 covers all county officers (including sheriffs, county clerks, etc.) and precinct level officers (county commissioners and constables) but would keep straight ticket voting for “statewide officers” such as the Supreme Court and Court of Criminal Appeals.

 

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Arkansas: if the Supreme Court loses its rulemaking power, will it get merit selection in exchange?

April 1st, 2013

I’ve noted the ongoing fight over the Arkansas Supreme Court’s rulemaking authority, the citation to that authority to overturn tort reform laws, and the effort to constitutionally remove the Supreme Court’s power on this score. Coming up later today, however, are bills that tie merit selection into the equation.

First, some background.

When Arkansas voters approved Amendment 80 in 2000, they move the state away from partisan elections to nonpartisan ones, but kept open the possibility to a switch to merit selection for the appellate courts at some future time. Under Section 18 of Amendment 80, a simple majority of the legislature can refer the issue to the voters. Since 2000 there has been only one effort to even propose such a change: SB 744 of 2011 would have put the question of merit selection for the Court of Appeals only to voters. It went nowhere.

In the alternative, the Arkansas constitution allows for an amendment to be submitted to the public with a single session majority vote, which is where a series of placeholder bills set for a hearing today comes into play, all proposed by the same member of the Arkansas House.

HJR 1005 is straightforward, providing a merit selection system for state supreme court justices only and explicitly prohibiting the justices from engaging in partisan/party activity.

The other House bills are more ambiguous placeholders. The official text, not the preamble or synopsis but the text itself, of HJR 1012 and HJR 1014 echo language from SJR 5, a bill to remove the court’s rule making power with respect to civil claims and procedural law.

HJR 1012: “The purpose of this joint resolution is to amend the Arkansas Constitution concerning the judicial department of state government, including without limitation amending the process for selecting justices of the Supreme Court and amending Amendment 80 to the Arkansas Constitution and other constitutional provisions concerning the litigation of civil claims.”

HJR 1014: “The purpose of this joint resolution is to amend the Arkansas Constitution concerning the judicial department of state government, including without limitation amending the process for selecting justices of the Supreme Court and clarifying substantive and procedural law and rights under Amendment 80 to the Arkansas Constitution.”

It is not uncommon for such placeholder language to be replaced by operative text. For example SJR 5 as introduced read

The purpose of this joint resolution is to propose an amendment to the Arkansas Constitution concerning civil claims and court procedures.

The author then amended in the operative text to remove the Supreme Court’s rulemaking power.

The General Assembly shall delegate nonexclusive authority to the Supreme Court shall to prescribe the rules of pleading, practice and procedure and the rules of evidence for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.

All 4 bills (HJR 1005, HJR 1012, HJR 1014 & SJR 5) are up for a hearing before the  Arkansas Joint Committee on Constitutional Amendments later today.

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North Carolina: Bills introduced to return to partisan judicial elections and/or end public financing of judicial campaigns

March 29th, 2013

As expected North Carolina’s House and Senate are set to take up plans to end the state’s publicly financed judicial campaign system for the appellate courts and return the state to partisan judicial races.

HB 451, entitled “Election Omnibus” simply deletes Article 22D of Chapter 163, the public financing system and returns state judicial races to the list of races to be held on a partisan basis. It joins the previously filed HB 65 / SB 39 which focuses solely on the judicial races/public financing portions of the state’s election law.

SB 495 and the similar but not identical SB 541 shut down public financing but are silent on the subject of partisan elections.

The House bills are both in the House Elections Committee. Senate Bills SB 39 and SB 495 are in the Senate Rules Committee while SB 541 was only filed yesterday (March 28) and is not yet in a committee.

 

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