The latest House Committee Notices indicate a vote on May 22 for on proposed constitutional amendment HB 1815 and its implementing statutory language HB 1816 in the House Judiciary Committee (prior discussion on the legislation here, here, and here).

If adopted, the proposal would have to be re-approved by the legislature elected in November 2012 before appearing on the ballot.

Presently, there appears to be only two items circulating and neither of them appear to be gathering signatures.

Colorado Proposed Initiative 2011-11 (DEADLINE: August 6) Changes term of office for the justices of the Colorado Supreme Court from ten years to two years. Prohibits a justice from serving as chief justice for more than one term. Prohibits a justice who is not retained as the result of a retention election, resigns from the Court, is removed from the Court, or fails to file a declaration under section 25 of article VI of the Colorado constitution from being reappointed to the Court for a period of ten years.

Oregon Proposal Initiative SP-2012-004 (DEADLINE: July 6) Prohibits labeling judge as “incumbent” on ballot if required study shows advantage to incumbent candidates.

• Increase the number of individuals that the Appellate Judicial Commission nominates for vacancies in the Supreme Court or Court of Appeals from three to four
• Replace the Supreme Court member who currently serves as commission chair with additional person chosen by Governor
• Allows Supreme Court to appoint a former Supreme Court or Court of Appeals judge to serve as a nonvoting member of the commission if the former judge has not been removed for cause or failed to be retained in a retention election
• Provides members appointed by the Governor no longer must be non-bar members
• Provides appointed members will serve terms of four years, staggered so that a Governor will appoint two when taking office and two during the middle of his or her term.

The proposal now goes to the voters in November 2012 unless the governor puts it on earlier ballot.

• Increase the number of individuals that the Appellate Judicial Commission nominates for vacancies in the Supreme Court or Court of Appeals from three to four
• Replace the Supreme Court member who currently serves as commission chair with additional person chosen by Governor
• Allows Supreme Court to appoint a former Supreme Court or Court of Appeals judge to serve as a nonvoting member of the commission if the former judge has not been removed for cause or failed to be retained in a retention election
• Provides members appointed by the Governor no longer must be non-bar members
• Provides appointed members will serve terms of four years, staggered so that a Governor will appoint two when taking office and two during the middle of his or her term.

That bill is now before the House Rules Committee, which next meets today (May 8th) at 4 PM.

The other piece of activity of note is HB 1534. This bill would prohibit judges and other public officers/employees from enforcing federal Patient Protection and Affordable Care Act. It further declares any U.S. government employee who attempts to enforce law is guilty of class A misdemeanor. It was approved by the full House April 19 and is set for a hearing before the Senate General Laws Committee on tomorrow May 9.

SJR 51, as introduced, would have changed the structure of the judicial nominating commissions, allowing the Governor to appoint all members with the advice and consent of the Senate. The governor would have been barred, however, from appointing commissioners who were members of the bar, judiciary, or spouses of members of the bar or judiciary.

The Senate Judiciary Committee rewrote most of the bill. The SCS (Senate Committee Substitute) shifts control of selection to appellate judicial nominating commission to governor. First, it revokes effective January 15, 2013 the terms of office for all current members of the appellate judicial commission.

Thereafter, the composition would change as follows:

Current

• 1 Supreme Court Judge, chosen by court
• 3 attorneys, chosen by bar, one per court of appeals district
• 3 non-attorneys, chosen by governor, one per court of appeals district

 Proposed

• 1 non-voting retired appellate judge (who did NOT lose a retention election or been removed from office for cause), chose by Supreme Court
• 4 voting individuals, chosen by governor, one per court of appeals district, plus one statewide (may or may not be attorney); their terms would be staggered so an incoming governor would be able to replace 2 immediately and the other 2 half-way through his or her term
• 3 voting attorneys, chosen by bar, one per court of appeals district

Moreover, it increases from 3 to 4 the number of names to be submitted to the governor to fill a vacancy.

Perhaps even more interesting that the SCS itself were the proposed floor amendments. All failed, and all can found in the Senate Journal from pages 847-850, here.

Amendment 1 would have required the 4 individuals chosen by the Governor to the appellate nominating commission be subject to Senate confirmation.

Amendment 2 would have changed the state’s Supreme Court power over the allocation of judicial resources. Currently, the state constitution allows the legislature to set court of appeals and other districts. Amendment 2 specified the number of judicial positions must be set by law and that any supreme court order to create a number greater than set by statute was “null and void”. It would have specified that the Supreme Court could make permanent transfers of judicial positions from circuit to circuit (the constitution already specifies the power  of the Supreme Court to make temporary transfers) but that every circuit was required to have at least 1 circuit judge and every county at least 1 associate circuit judges.

Amendment 3 would have made the date on which the existing judicial commissions were emptied 2016 rather than 2015.

Amendment 4 would have cut the commission down from 7 + 1 non-voting to 6 + 1 non-voting by eliminating the governor’s state-at-large pick. The effect would have been for the governor to have 3 seats and the bar 3.

Amendment 5 would have required the commission members release all communications regarding the commission’s work.

Each voting member of the appellate judicial commission shall keep a record of all oral, written and electronic communications relating to the official business of the commission received while a member of such commission from any person not a member of the  commission. Such records shall include the name, address, employer and date of such communication. All such records shall be a public record.

With all 5 amendments having failed, the bill met with initial approval by the full Senate and could be taken up at any time.

The state’s merit selection system depends on two commissions (the Judicial Selection Commission and the Judicial Performance Evaluation Commission) statutorily set to automatically sunset June 30, 2012. The last time something like this happened was in 2008, when the sunset deadline was passed and the commissions were almost at the end of their one-year “wind down” in June 2009 before legislation was adopted to keep them going. Thus if nothing happens, merit selection ends and there is some degree of ambiguity of there is any way to appoint or elected appellate judges after. The state’s Attorney General in 2009 issued an opinion (09-43) that with the commissions gone and no explicit statutory language for conducting direct elections, sitting judges would simply remain in office indefinitely due to a constitutional provision (Article VII, §5) that provides a judge “shall hold his office until his successor is elected or appointed, and qualified.”

Yesterday the House approved SJR 710, a quasi-federal system of judicial selection. It needs to be re-approved by 2/3rds of the 2013-2014 legislature before appearing on the November 2014 ballot. But the question about the two commissions remains outstanding.

• Judicial Selection Commission: HB 2356 / SB 2346 and HB 3575 / SB 3321 would extend the sunset date for the nominating commission until June 30, 2013 only. None of them appear to have gotten so much as a committee hearing. Additionally HB 3451 would have extended the nominating commission to June 30, 2014. It too got nowhere.
• Judicial Performance Evaluation Commission: HB 2537 / SB 2345 would extend the sunset date for the evaluation commission until June 30, 2013 only. The House version was approved in mid-April and is on its way to the governor’s desk.

This leaves open several questions, such as what happens if there is a vacancy on the appellate courts and the nominating commission has been shut down. Moreover, there are already at least 2 justices (Chief Justice Cornelia A. Clark and Justice Janice M. Holder) set to have an election in August 2014, plus judges of the intermediate appellate courts (Court of Appeals & Court of Criminal Appeals) but the performance evaluation commission will shut down a year prior and SJR 710 won’t be voted on until November 2014 (if it clears the legislature again in 2013-2014, not a given). Will the judges and justices simply remain in office indefinitely?

The Tennessee Bar’s President has called the lack of specificity about the 2014 elections “irresponsible” (h/t TBA Today). Republican House member Glen Casada has offered a solution: make the 2014 elections contested races, however his bill to provide for contested elections (HB 173) was rejected in the House Judiciary Committee earlier this year on a 7-7- tie vote.

• Governor appoints anyone meeting minimum qualifications (age 35, resident for 5 years)
• legislature confirms
• subject to retention election

Prior amendments had removed any reference to merit selection.

This particular method was approved 22-9, a critical number. Under the state constitution, a mere majority (17 of 33) was needed for first passage. An intervening election must take place (November 2012) and the 2013-2014 Senate must approved the bill by “two-thirds of all the members elected to each house”, or 22.

Contrast this with SJR 183, adopted last week, which permits but does not require merit selection with retention elections. SJR 183 met with a 21-9 vote.

Even more interesting was the for/against tallies.

• 19 Senators (18 R, 1 D) voted to advance both bills
• 7 Senators (6 D, 1 R) voted no on both

Of the remaining 7

Extending current merit selection past 2012

The current merit selection system, which relies on a judicial nominating commission (for initial appointment) and a judicial performance evaluation commission (for retention election-year review), is set to sunset June 2012.

Efforts to extend it to 2013 or 2014 have been introduced, however so far only the portions related to the judicial performance evaluation commission have advanced. HB 2537 was approved in the House Government Operations Committee April 11 and is on the House floor calendar for April 18. In the Senate SB 2345 is up for a vote in the Senate Government Operations Committee April 18.

Put merit selection explicitly in the constitution

HJR 830 is relatively spartan in terms of details. It was approved by the House Finance, Ways, and Means General Subcommittee on April 11 and is set for a vote today (April 17) by the full committee.

As an alternative to contested elections, the Legislature is authorized to establish, by law, a system of merit-based appointments with retention elections
for the judges of the Supreme Court and for the judges of the intermediate appellate courts.

SJR 183 uses the same language as HJR 830. It was approved yesterday (April 16) but not after several amendment attempts.

• Amendments  SA0368 and SA 1166 would have provided for merit selection “with or without retention elections” (amendment underlined). Both were withdrawn.
• Amendment SA 1176 would have scraped the language entirely, ended merit selection, and provided for a quasi-federal system of gubernatorial appointment with legislative confirmation and contested elections. That amendment failed on April 12 on a 15-16-1 vote.

SJR 710 also proposes a quasi-federal system with nomination entirely at the discretion of the governor (i.e. no merit selection commissions) but unlike amendment SA 1176 to SJR 183, it would provide for retention elections rather than contested ones. Moreover, confirmation would automatically occur if the legislature failed to reject a nominee, a concern that as I noted previously senators had especially in light of delays in confirmation of federal judges.

Key to SJR 710 is the particular language used, especially the word “merit”, with the latest version eliminating the word entirely (underline added)

• As introduced: Each judge of the Supreme Court or any intermediate appellate court shall be initially selected via merit-based gubernatorial appointment from a panel of qualified candidates submitted by a nominating commission; shall be legislatively confirmed; and, thereafter, contingent upon a satisfactory job performance evaluation, shall be subject to retention election by the qualified voters of the state.
• Amendment SA 1111 (withdrawn): Each Judge of the Supreme Court shall be appointed by the governor based on merit and shall be confirmed by the Legislature.
• Amendment SA 1165 (adopted April 11): Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the sole discretion of the governor based on merit; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state.
• Amendment SA 1168 (withdrawn): Judges of the Supreme Court or any intermediate appellate court shall be nominated for a full term or to fill a vacancy by and at the sole discretion of the governor based on merit; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state.
• Amendment SA 1232 (adopted April 16): Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state.

End merit selection

Language to provide for contested elections for appellate judges faced rejection in the House but fared better in the Senate. HB 173 to specifically ensconce such a system in statute failed on a 7-7 vote in the House Judiciary Committee on April 11. The Senate version (SB 127) had been approved by the Senate Judiciary Committee in 2011 but hasn’t moved since.

Also on April 11 the Senate Judiciary Committee approved SJR 635 to put contested elections for appellate judges, based on districts to be drawn by the general assembly rather than statewide, into the constitution.

Minnesota HB 1666 / SB 1465 – These constitutional amendments would establish a merit selection system with retention elections for judges. Terms of office would be extended from six to eight years. Additionally, a judicial performance commission would be formed, which must issue in the judge’s retention election year a retention evaluation of “well-qualified,” “qualified,” or “unqualified”. There was a hearing on the House bill in May 2011 and they were carried over into the 2012 session.

This is the 5th year in a row such a bill has been considered: prior iterations made it out of committee but never advanced beyond their chambers of origin. The closet was SF 3129 of 2008 which would have taken the existing merit selection system in place to temporarily fill interim vacancies in District Court and applied it to the appellate courts. It passed 55-12 in the Senate but failed to move in the House.

North Carolina HB 325 and SB 458 – There were several hearings in 2011 on the prospect of creating some sort of merit selection system in North Carolina, but instead of using retention elections providing that the person chosen and the person not selected by the governor would face off in an election after. For a review of the hearings, check out the coverage from Gavel Grab. In terms of actual legislation the two bills were introduced in 2011 and carried over into 2012.

Pennsylvania HB 1815 / SB 843 – These constitutional amendments and their corresponding statutory changes (HB 1816 / SB 842) would create a merit selection system with Senate confirmation for the state’s 3 appellate courts. The constitutional amendments also broadly describe the composition of the merit selection commission. A hearing was conducted in November 2011 and other in March 2012.

Wisconsin SJR 42 – Submitted in September 2011 for the 2012 session, the constitutional amendment, like the Minnesota example, gave no specificity as to membership of the commission that would submit names to fill appellate court vacancies to the governor. There were no hearings on the bill and it died when the legislature adjourned.

Over the next two days I’m going to look at both aspects of merit selection. Today I’ll be examining 2012 efforts to modify or end existing merit selection systems as created by constitutional provision or statute. Several states use “merit selection” entirely as the result of governors’ creating nomination panels; because these don’t involve the legislature I will not focus on them. All information as to which states have what is from the American Judicature Society’s 2011 report “Judicial Merit Selection: Current Status” located here.

Tomorrow (April 11) I will examine efforts to implement statutory and/or constitutional merit selection systems in states that do not currently have them.

Alabama – Circuit Court in select counties [interim only]: No activity

Alaska – Supreme Court, Court of Appeals, Superior Court: No activity

Arizona – Supreme Court, Court of Appeals, Superior Court in larger counties: A 2011 bill (SCR 1001) revising numerous provisions of the merit selection system (commission composition, number of names submitted, etc.) plus increasing judicial terms will be on the 2012 ballot. A 2012 effort to simply end the merit selection system and replace with partisan elections (SCR 1034 / SB 1371) was rejected in committee.

Colorado – Supreme Court, Court of Appeals, District Court: No activity

Connecticut – Supreme Court, Appellate Court, Superior Court: No activity

Florida – Supreme Court, District Court of Appeal; Circuit [interim only]: A 2011 bill (HJR 7111) requiring Supreme Court nominees chosen by the governor be subject to Senate confirmation will be on the 2012 ballot. Several attempts to change the composition of the nominating commissions and allowing a governor to fire a majority of the commissioners at will (vs. staggered terms) failed at the last minute (HB 971 / SB 1570).

Hawaii – Supreme Court, Intermediate Appellate Court of Appeals, Circuit Court, District Court: Constitutional amendments HB 2343 and SB 2209 would require judicial selection commissions to provide more public disclosure of their proceedings, specifically information about those whose names are considered to fill vacancies. The Senate version appears now to be the primary bill, having been approved by the full Senate and the House Judiciary Committee. Another constitutional amendment, SB 2205, would lower the number of names submitted to fill vacancies: for Supreme, Intermediate Appellate & Circuit: from 4-6 to specifically 3. For District: from not less than 6 to specifically 3.

Idaho – Supreme Court, Court of Appeals, District Court [interim only]: No activity

Indiana – Supreme Court, Court of Appeals, Tax Court, Superior and other trial courts in select counties: Proposals to substantially revised (SJR 13) or simply end (SJR 14) merit selection failed to advance.

Iowa – Supreme Court, Court of Appeals, District Court: Several bills introduced in 2011 to either alter or end merit selection were carried over into the 2012 session (see database for full list). None advanced.

Kansas – Supreme Court, Court of Appeals, District Court at district’s discretion : The prime focus was in ending merit selection for the Court of Appeals; because it is a statutorily created court the change would only require a change in statute rather than a constitutional amendment. While meeting with House approval in 2011 (HB 2101) the Senate failed to take up the bill. Undaunted, the House began attaching it to unrelated pieces of legislation (SB 83) and seeking to end the commission on judicial performance which makes recommendations for or against retention of judges (HB 2396).

Kentucky – Supreme Court, Court of Appeals, Circuit Court; District Court [interim only]: No activity

Maine – Supreme Judicial Court and Superior Court: No activity

Minnesota – District Court [interim only]: No activity

Missouri – Supreme Court, Court of Appeals, Circuit Courts in select counties: The state synonymous with merit selection saw efforts to outright end merit selection fail to advance (HJR 77, SJR 41, SJR 42). Efforts to modify the system were and are active. SJR 51 would allow the governor to appoint all nominating commission members subject to senate confirmation and a prohibition of members of the bar, judiciary, or their spouses from serving. HJR 44 increases the names given to the governor to chose from 3 to 5 and allows the governor to reject the first 5 person panel, ask for a second, and then select from the 10. It also alters the composition of the nominating commissions and, like the Florida provisions attempted to do, allows the governor to fire commissioners appointed by prior governors. HJR 44 was approved by the House Special Standing Committee on Judicial Reform 3/21/12 and is currently in the House Rules Committee.

Montana – Supreme Court and District Court [interim only]-: Legislature not in session.

Nebraska – Supreme Court, Court of Appeals, District Court, County Court: No activity

Nevada – Supreme Court and District Court [interim only]: Legislature not in session.

New Mexico – Supreme Court, Court of Appeals, District Court, Metropolitan Court: SB 24, which was approved by the Senate but not the House, would have created a special fund to help pay for the judicial nominating commissions associated with the state’s merit selection system. Funds were to have come from gifts, donations, etc. plus $50,000 a year from the legislature itself as an automatic, recurring appropriation.

New York – Court of Appeals (court of last resort in state): A single bill introduced in 2011 (AB 309) would have required the nominating commission submit all qualified names to governor. It has failed to advance.

North Dakota – Supreme Court and District Court: Legislature out of session

Oklahoma – Supreme Court, Court of Criminal Appeals, Court of Civil Appeals, District Court [interim only]: 2011 carry over bills SJR 36 would have ended merit selection for the appellate courts, allowing the governor to appoint anyone qualified subject to senate confirmation while SB 621 would have required nominees chosen via the state’s merit selection system be subject to senate confirmation. Neither have advanced in 2012. Other carry over bills from 2011 to end merit (HJR 1008 & HJR 1009 for appellate courts; SB 543 to fill interim vacancies in District Courts) went nowhere.

Rhode Island – Supreme Court, Superior Court, Family Court, District Court : No activity Update 4/11/12: HB 8043 filed just days ago extends until 2013 an existing law allowing any individual whose name was publicly submitted to the governor by the judicial nominating commission to be eligible for subsequent nomination by the governor.

South Dakota – Supreme Court, Circuit Court [Interim only]: No activity

Tennessee – Supreme Court, Court of Criminal Appeals, Court of Appeals, Trial Courts [interim only]: Tennessee has seen literally dozens of bills introduced in 2011 and carried over, plus new bills in 2012, dealing with the state’s merit selection system which is due to “sunset” and expire soon.

Put merit selection explicitly in constitution:

HJR 753 Adds legislative confirmation of nominees

HJR 830

SJR 183

SJR 710 Adds legislative confirmation of nominees

Extend merit to June 30, 2013:

HB 3575 / SB 3321

HB 2356 / SB 2346

HB 2537 / SB 2345

Extend merit to June 30, 2014:

HB 3451 (nominating commission only)

End merit:

HB 173 / SB 127

HB 231 / SB 281

HB 958 / SB 699

HB 3615 / SB 3714

SJR 475

SJR 635

Modify:

HB 1017 / SB 82 Retains merit selection, but makes judicial nomination commission recommendations advisory; allows governor to ignore recommendations.

HB 1702 / SB 646 Requires judges selected via merit selection system receive 75% yes in retention election.

HB 3452 / SB 2794 Retains merit selection, but alters nomination process and adds confirmation.

HB 3691 / SB 3652 Requires House and Senate speakers appoint all nine members of the judicial evaluation commission since the judicial council no longer exists.

Utah – Supreme Court, Court of Appeals, District Court, Juvenile Court: No activity

Vermont – Supreme Court, Superior Court, District Court: No activity

West Virginia – Supreme Court of Appeals, Circuit Court, Family Court [interim only]: No activity

Wyoming – Supreme Court, District Court, Circuit Court: No activity