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Tennessee Senate Judiciary Committee advances yet another judicial selection plan on another 5-2-2 vote; House committee may vote on similar plan today

April 4th, 2012

The Tennessee Senate Judiciary Committee has advanced a fourth judicial selection plan with yesterday’s passage of SJR 710 as amended.

Last week saw the Judiciary Committee approve with amendments SJR 475, creating a quasi-federal judicial selection system. (SB 127 and SJR 183, other judicial selection bills, were advanced in last year’s session and remain active).

SJR 710, like SJR 475 creates a quasi-federal system and uses almost identical language.

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. The Legislature shall prescribe such rules as may be necessary to implement sections two and three of this article. Each such judge shall be at least thirty-five years of age and shall have been a resident of the state for the five-year period immediately preceding appointment. The term of service shall be eight years.

According to the author (the amendment is not online yet) the committee approved amendment makes SJR 475 different from SJR 710 in two ways

  1. SJR 475 gives the legislature 60 days to confirm a judicial nominee, otherwise the individual is automatically confirmed
  2. SJR 475 provides the judge seeking to remain in office is subject to retention election only (vs. SJR 710 which would require reappointment by the governor, reconfirmation by the legislature, and retention election).

The video from the hearing indicates the bill advanced on a 5-2-2 vote.

Meanwhile, a similar judicial selection plan is on the agenda today for the Tennessee House Finance, Ways & Means Committee, General Subcommittee.

HJR 753 uses the same wording as the pre-amended SJR 710 and was approved by House Judiciary Committee 3/20/12.

 

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With recall in the air in Wisconsin, Alabama considers letting public recall judges

March 30th, 2012

While many eyes are focused on the gubernatorial recall election in Wisconsin, Alabama’s legislature has been contending with expanding its own limited recall provisions to include not only that state’s governor, but its judges as well.

According to the National Conference of State Legislatures, a majority of states allow for some form of recall but at least some explicitly exempt judicial officers. Alaska’s constitution, for example, reads in operative part (bolding added):

All elected public officials in the State, except judicial officers, are subject to recall by the voters of the State or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by the legislature.

Presently Alabama’s recall is limited to municipal commissioners and mayors. There have been numerous bills in the last 4 years introduced in Alabama that would permit some sort of recall election for officials. Of them

Only one, HB 204 of 2012 exempts judges from recall.

 

  • HB 393 of 2009, which required no specific grounds, died in committee with no activity.
  • SB 491 and SB 495, both of 2011, required the petitioners allege 1) malfeasance or nonfeasance, 2) lack of physical or mental fitness, 3) incompetence, or 4) violation of an oath of office. Both bills died in committee with no activity.
  • Of the 2012 bills, the House version (HB 311) requires no grounds be specified while the Senate versions (SB 17  and SB 19) have the same 4 criteria as their 2011 versions. 

SB 17 was approved on a 5-1 vote by Senate Committee on Constitution, Campaign Finance, Ethics, and Elections 3/22/12.

 

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Tennessee Senate Judiciary Committee advances a version of merit selection with quasi-federal elements on 5-2-2 vote UPDATE Details on the Senate plan

March 27th, 2012

Last week a Tennessee House committee approved a constitutional amendment to specifically enshrine merit selection in the state’s constitution. Earlier today, however, the Senate Judiciary Committee approved an amendment to move to a quasi-federal system with merit selection.

SJR 475 as introduced provided for the governor to appoint any person meeting the age/practice of law requirements, subject to senate confirmation. Unlike the federal system which includes life tenure, judges/justices would have to be reconfirmed after every 8 year term.

According to the author the amended version approved today (the amendment is not yet online) includes a “merit selection” provision. Nominees would be selected by the governor and subject to legislative confirmation (apparently both chambers, not just senate). Judges serving 8 years would have to be reappointed and reconfirmed and subject to retention election.

This marks the third judicial selection constitutional amendment advanced by the Senate Judiciary Committee. SB 127 would require election of all judges, including appellate and supreme court judges. SJR 183 on the other hand unequivocally authorizes the general assembly, by statute, to establish a system of merit-based appointments with retention elections for appellate court judges. Both SB 127 and SJR 183 were advanced in spring 2011 but, due to the legislature’s carry-over provisions, they remain “live”.

All three items are now pending in the Senate Finance, Ways and Means Committee.

Update 3/28/12 @ 12:03 PM

The amendment is now online. It confirms most of what came out in the testimony yesterday, including the three-part reelection process (incumbents must be reappointed by the Governor, reconfirmed by the legislature, and then approved in retention election).

The merit selection method is vague, stating only that “Each Judge of the Supreme Court shall be selected via merit-based gubernatorial appointment and shall be legislatively confirmed.”

Amended language follows:

Each Judge of the Supreme Court shall be selected via merit-based gubernatorial appointment and shall be legislatively confirmed. Each such judge shall be thirty-five years of age and shall have been a resident of the state for the five year period immediately preceding appointment. The term of service shall be eight years. Any judge seeking additional terms must be reappointed, reconfirmed, and subject to a retention election by the qualified voters of the state. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of sections two and three of this article, except that the Legislature may not create a commission of non-legislators to assist in appointment and confirmation. The Legislature shall have the authority to stagger the terms of the Judges of the Supreme Court elected in 2014. Notwithstanding Article VI, Section 4, Judges of any intermediate appellate court shall be nominated, appointed and elected in the same manner as judges of the Supreme Court.

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Tennessee House Judiciary Committee approves 9-6 plan to put merit selection explicitly in state’s constitution

March 20th, 2012

There has been copious amounts written on this blog and in the Gavel to Gavel publication on Tennessee’s merit selection system (here’s an overview). The latest effort, HJR 753, would specifically place a merit-selection system in the state’s constitution for appellate judges in the state. Specifically the proposed constitutional amendment would replace the existing Article VI, Section 3…

The judges of the Supreme Court shall be elected by the qualified voters of the state. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Every judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the state for five years. His term of service shall be eight years.

…with this…

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. The Legislature shall prescribe such rules as may be necessary to implement sections two and three of this article. Each such judge shall be at least thirty-five years of age and shall have been a resident of the state for the five-year period immediately preceding appointment. The term of service shall be eight years.

The plan has the support of the state’s governor and legislative leaders. Despite this, the bill passed by only a 9-6 vote earlier today on its way to the House Finance, Ways & Means Committee.

The video below is from the (short) Judiciary subcommittee hearing on the bill on March 14 and the (longer) hearing and vote from March 20.

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Alabama bill would ban legislators from appointments to judgeships for two years

March 19th, 2012

From a separation of powers standpoint, many state constitutions provide that an individual serving in one branch of government cannot simultaneously serve in another. In some states this is taken to the even further extreme of resign-to-run provisions, requiring an individual quit their current position before running for another.

Alabama’s HB 550, however, may have taken this to a new realm. The bill prohibits members of the legislature from being appointed to judgeships within 2 years of their legislative service (there’s no comment about being independently elected).

While bans on serving in judgeships are not unheard of, they are rare and are usually directed at people who have a role in the appointment of judges. Take for example South Carolina, where judges are appointed by the legislature after being reviewed by Judicial Merit Selection Commission made up of legislators and non-legislators. Commission members in particular (S.C. Code Ann. § 2-19-10 (G)) and legislators in general (S.C. Code Ann. § 2-19-70 (A)) are prohibited from being appointed to a judgeship for one year after their service on the commission and/or in the legislature.

Alabama HB 550 is currently pending in the House Constitution, Campaigns and Elections Committee.

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Kentucky House Judiciary Committee approves plan for public financing of Supreme Court races on 9-7 party line vote UPDATED: 9-6 non-party line vote

March 15th, 2012

As I noted previously, Kentucky has almost its entire judiciary on the ballot in 2014, including 5 of the state supreme court’s 7 members. It is this, plus the view of judicial elections in other states and concern over the impact Citizens United has had on elections, that has prompted several bills in the last few years to create a public financing system for judicial elections in the state.

First, some background.

The first attempt at a Kentucky “clean judicial elections” fund was in 2006. HB 682 of that year covered all judicial elections for trial and appellate courts. It met with approval in the House Elections, Constitutional Amendments & Intergovernmental Affairs Committee and was floor amended to permit the Supreme Court to require members of the Kentucky Bar Association to submit an annual fixed amount not to exceed $25 to be dedicated to the clean judicial elections fund. It was then sent to the House Appropriations and Revenue Committee where it died.

From 2006 to 2010 there were no indications the bill was reintroduced. In 2011, HB 21 was put forward with much (if not all) the same language of the 2006 bill. This time it failed to advance in the House Elections, Constitutional Amendments & Intergovernmental Affairs Committee.

2012 saw two iterations: HB 47 (which was withdrawn almost the day it was introduced) and HB 230. The major difference: HB 47 would have covered all judicial races (like HB 682 of 2006 had) while HB 230 is focused only on Supreme Court races. While initially sent back to the House Elections committee, HB 230 was re-assigned two weeks after introduction to the House Judiciary Committee.

The video below is from two hearings before the House Judiciary Committee: the informational hearing held February 29 and the actual committee vote held March 14, where the committee voted 9 to 7 along party lines (all Democrats in favor, all Republicans opposed) to advance the bill.

UPDATE 3/15/12: I misheard some of the audio. According to this news account the vote was 9-6 with 8 Democrats joined by Republican Rep. Michael Nemes (h/t Gavel Grab).

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Should Minnesota judges be elected by county or by judicial district? Should they forfeit their retirement if they resign before their term is over?

March 14th, 2012

Discussions of judicial selection focus more often than not on the method: merit selection, nonpartisan, partisan, etc. Another key component, however, is the geographic basis for election. In sum, how small should the geographic area be electing a judge, especially when it comes to trial judges? Minnesota is debating that and, in the same bills, a great deal more.

First, some background.

Trial judges are generally chosen in multicounty districts/circuits, by county, or by towns/municipalities within a county (where applicable). There are instances where judges are chosen without regard to location (e.g. Delaware Superior & Chancery, Connecticut Superior) or by precincts within a county (e.g. Arizona Justice of the Peace, Illinois’s Circuit Court with respect to Cook County/Chicago). A full review can be found in State Court Organization, 2004 Table 6, located here.

Minnesota’s sole trial court (District) is elected in 10 districts for 87 counties, with two districts being single county entities (2nd = Ramsey; 4th = Hennepin).

This article in Minnesota Lawyer discusses the belief that more localized judicial elections would be fairer, a concept that has manifested in 2012 as HB 1474 & SB 1508.

Under the proposals judges would be elected by county or judicial election precinct within a county and provides for a transition mechanism.

What makes HB 1474 and SB 1508 stand apart from other such proposals introduced in other states is the added elements that have nothing to do with election-by-county.

The first provision would penalize judges for retiring before the end of their term. An incumbent judge or justice would not be allowed to run for re-election unless they make a signed “commitment” that they will remain in office until

  • the expiration of the term of office
  • the mandatory retirement date
  • the December of a general election year
  • the disability date
  • appointment to another office of government
  • inability to serve due to a compelling physical or personal reason (the reason must be approved by the Court of Appeals)

A judge or justice who retires for any reason other than those specified forfeits 25% of their retirement annuity.

Moreover, the bills create the judicial position formally entitled “placeholder” and provides a governor may appoint a “placeholder” to fill a judicial vacancy until a successor is elected and qualified.

Finally, the bill amends current judicial retirement law. Judges must now resign at the end of the month he or she 70; HB 1474 and SB 1508 would let them serve until the end of the year of a general election after the judge turns 70.

The House bill is pending in the Government Operations and Elections Committee, while the Senate bill is in the Local Government and Elections Committee.

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Quick parliamentary tactic in Wisconsin Assembly effectively kills effort to change selection method for Chief Justice

March 13th, 2012

I’ve noted over the last several weeks the effort in Wisconsin to amend the state’s constitution and end the practice whereby the most senior justice of the state’s supreme court is Chief Justice. AJR 49 and SJR 36 would instead provide that the justices of the court, after each new election, would select a Chief Justice.

For the most part the effort has broken down on party lines, with Republicans in favor and Democrats opposed. When AJR 49 was brought to the floor on March 6, however, 20 Democrats introduced a floor amendment that would have gutted the existing proposal and replaced with mandatory judicial recusal.

A justice of the supreme court, court of appeals judge, and circuit court judge shall disqualify himself or herself from any civil or criminal action or proceeding when any of the following situations occurs:

(1) When a reasonable person would question whether the justice or judge can act in an impartial manner.

(2) When a justice or judge has received, as a candidate for judicial office and within the past 4 years, campaign financial support from a party to the action or proceeding in an amount of $ 1,000 or more, including campaign contributions, independent contributions made on behalf of the justice or judge, and independent contributions made against the justice’s or judge’s opponent. A justice or judge who is required to disqualify himself or herself under this subsection may disclose on the record the basis of the justice’s or judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the justice or judge, whether to waive disqualification. If, following disclosure under this subsection, the party who is opposed to the party that provided campaign financial support to the justice or judge determines that the justice or judge should not be required to disqualify himself or herself and if the parties and the lawyers of the parties all agree, the parties may waive disqualification of the justice or judge and the justice or judge, if willing, may participate in the action or proceeding. The agreement or waiver shall be incorporated into the record of the action or proceeding.

In the span of about 30 seconds the amendment was offered up and approved on a unanimous consent request before Assembly leaders realized what had happened. It was then advanced to engrossment (i.e. past the point where a simple majority could amendment it; another unanimous consent would have been required). The bill was ultimately tabled and effectively killed in the Assembly. The Senate version remains alive but as Wisconsin Public Radio notes, with a week left, it is hard to see how the amendment would gain passage.

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Efforts to change or end Oklahoma’s merit selection system: dormant or dead?

March 13th, 2012

March 2011 saw a litany of activity in Oklahoma as the state’s Senate pushed two bills to modify or end the state’s merit selection process for appellate judges. Since then, and up to March 2012, the efforts have failed to advance leading to the question of whether the bills or dormant or dead.

SB 621 requires any appointment or reappointment by the Governor to fill a judicial office be confirmed by a majority of the senate.

SJR 36 outright ends the state’s merit selection system, allowing future governors to appoint any qualified person with senate confirmation.

Neither bill has advanced in 2012 and, perhaps even more interestingly, there has been no additional bills related to the state’s merit selection system introduced.

It may theoretically be possible for the two Senate bills introduced in 2011 to be taken back up by the House; they both remain pending in the House Rules Committee. Under the House’s deadlines, the bills but advance out of the House committee by April 12.

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Is Georgia set to make some nonpartisan county judicial elections partisan?

March 12th, 2012

For the most part, Georgia’s judicial elections are nonpartisan affairs. Probate Courts and Magistrate Courts in some localities are notable exceptions which may be done away with if a bill passed by the Georgia Senate Committee on State and Local Governmental Operations becomes law.

SB 457 would end all nonpartisan elections in the state effective January 1, 2013. Only two exceptions are provided for:

  1. Judicial elections under Georgia Code 21-2-138 (State Court, Superior Court, Court of Appeals, and Supreme Court)
  2. Elections for county judicial offices (presumably Magistrates Court and Probate Court), local school board office, or consolidated government, if approved of by affected voters.

Under SB 457, if a jurisdiction wanted to continue with nonpartisan elections, the voters would have to approve of such a plan via a referendum on the November 2012 ballot worded “Shall the office of (Insert name of office) be elected in partisan elections?” Moreover, under the terms of the bill, each county judicial office would be voted upon separately.

The bill was approved by the Senate Committee on State and Local Governmental Operations February 29 and is on the Senate’s Second Reading calendar.

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