The bill had met with some opposition. The original bill passed by the Senate 25-0 on March 6 allowed judges to be recalled to serve as “mentors”. That language was amended out by the House, which then went on to approve the modified version on a voice vote. The Senate approved the House change on April 12 and gave what should have been final approval, again unanimously, on April 13.

The problem appears to have been with the House passage. Under the state’s constitution the final language was to have been sent to the governor 10 days prior to passage. The legislature sent that notice on April 10, thus the April 13 vote was premature. The Senate on April 20, figuring out the mistake, adopted SCR 176, requesting the Governor send the amendment back.

WHEREAS, article XVII, section 3, of the Hawaii State Constitution requires that the Legislature give the Governor at least ten days’ written notice of the final form of the proposed amendment prior to the final reading of the proposed amendment to the Hawaii State Constitution; and

WHEREAS, notice of the final form of Senate Bill No. 650, H.D. 1, was transmitted to the Governor on April 10, 2012, and the ten days pursuant to article XVII, section 3, of the Hawaii State Constitution has not yet expired; and

…

BE IT RESOLVED by the Senate of the Twenty-sixth Legislature of the State of Hawaii, Regular Session of 2012, the House of Representatives concurring, that the Governor of the State of Hawaii is requested to return Senate Bill No. 650, H.D. 1, to the Senate for proper correction…

The House approved the resolution as well and the Governor returned SB 650 on April 24.

The Senate then readopted the amendment, again unanimously, May 1. The House must now re-pass the amendment for it to go onto the ballot.

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

SB 650 would amend the state’s constitution to add the following to the judicial selection portion of Article VI.

The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

The Judicial branch has submitted testimony in favor of the proposition, arguing “the knowledge and experience of such judges are recognized as valuable resources not only as judicial mentors but also to help provide fair and timely disposition of cases.”, with a suggestion that the language read “emeritus judges and justices” rather than just “judges”. The state’s public defender came out against an earlier version of the bill, which would have let the judges emeritus come back as “judicial mentors“, language that was amended out of the bill.

SB 650 was approved by the full Senate March 6 and by the House Judiciary committee March 13. It is set for a hearing before the House Finance committee later today (April 3).

Hawaii HB 493 Transfers responsibility for judiciary security personnel from department of public safety to newly created office of the sheriff within the department of the attorney general. Carried over from 2011 session.

Minnesota HB 1607 Permits State Patrol to provide security and protection to Supreme Court justices for a limited period and within the limits of existing resources, in response to a credible threat on the individual’s life or safety. Carried over from 2011 session.

Minnesota HB 2000 Authorizes county boards to set and impose court security fees in civil and criminal matters for court security equipment and personnel. In House Judiciary Policy and Finance Committee.

Minnesota SB 1283 Permits State Patrol to provide security and protection to Supreme Court justices for a limited period and within the limits of existing resources, in response to a credible threat on the individual’s life or safety. Carried over from 2011 session.

Missouri HB 1416 For St. Louis County Courthouse only, exempts any licensed attorney from court security screening measures. In House (no committee).

New Jersey SB 264 Provides that while each county must provide “suitable courtrooms”, it is the county governing body that shall have final authority to determine expenditures for “suitably” securing courtrooms. In Senate Judiciary Committee.

New Jersey SB 652 Creates Court Security Enhancement Fund financed by increase of $5 to most court fees, assessments and penalties, to provide a continuous source of funding to assist counties and municipalities in providing and maintaining safe and secure court facilities. In Senate Judiciary Committee.

New York AB 3385 Provides a $5 fee to cover security costs in justice courts. Carried over from 2011 session.

New York AB 7325 Allows for a justice court to use money collected through a $10 surcharge to provide for additional security equipment and personnel. Carried over from 2011 session.

New York SB 5177 Allows for a justice court to use money collected through a $10 surcharge to provide for additional security equipment and personnel. Carried over from 2011 session.

Oklahoma SB 626 Repeals requirement that counties provide the courts attendants, fuel, lights and stationery, electricity, water, other utilities, toilet facilities and janitorial service, suitable and sufficient for the transaction of court business in such facilities. Provides county shall not be responsible for providing security, telephone, and utility service for the county courthouse or any annex thereto without an agreement with the Administrative Director of the Courts providing that the county will be reimbursed from the court fund for such services. Carried over from 2011 session.

Oregon HB 4163 Changes title of “court security officer” to “judicial security marshal” and “court security personnel” to “judicial security personnel.” Requires Department of Public Safety Standards and Training to certify individual members of judicial security personnel upon request of Security and Emergency Preparedness Office of Judicial Department, at office’s expense. In House Judiciary Committee.

Tennessee HB 1801 Clarifies that deputy sheriffs assigned to courthouse security are not required to be certified by the state’s peace officer standards and training commission but are not required to be. Carried over from 2011 session.

Tennessee SB 1755 Clarifies that deputy sheriffs assigned to courthouse security are not required to be certified by the state’s peace officer standards and training commission but are not required to be. Carried over from 2011 session.

Virginia HB 683 Increases from $10 to $15 the maximum sum that may be assessed as part of the costs in each criminal or traffic case in district or circuit court in which the defendant is convicted of a violation of any statute or ordinance, to be used to pay for courthouse and courtroom security. Tabled in House Courts of Justice, Civil Subcommittee 1/18/12.

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).

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

For this reason, among others, the U.S. Constitution assures federal judges are to “receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

Most (but not all) states have similar provisions in their constitutions. However, legislative efforts to overturn these clauses have been increasingly introduced as states cut budgets. Consider the following:

• 79% of voters in Ireland last week approved a referendum to weaken their constitution’s protection of judicial salaries, allowing for laws to be passed reducing the pay of judges proportionately if the pay of public servants is being or has been reduced and that reduction is stated to be “in the public interest”.
• New Jersey Governor Chris Christie’s plan to change the pension contributions for that state’s judges was also struck down as running afoul of that state’s guarantee that judicial salaries “shall not be diminished” (see prior post here). The Governor has vowed to introduce a constitutional amendment to curtail or eliminate the provision protecting judicial salaries.
• In 2006, Hawaii voters voted to end the state’s judicial compensation commission and replace it with a compensation commission that would set salaries for most state elected officials. A lesser known provision of the amendment also stripped the constitutional guarantee that judicial salaries “shall not be decreased during their respective terms of office, unless by general law applying to all salaried officers of the State”. In 2009, all judicial salaries were “reduced by five per cent from what the salary [was] as of June 30, 2009, and shall remain at that salary rate until June 30, 2011″ (HB 1536 of 2009). The June 30, 2011 deadline has since been extended to June 30, 2013 (HB 575 of 2011).

Details of the various recent constitutional amendments below the fold.

Hawaii HB 1102 (1999) Repeals judiciary salary commission. Repeals provision that “[Judicial] compensation shall not be decreased during their respective terms of office, unless by general law applying to all salaried officers of the State.” Died in committee.

Hawaii SB 1310 (1999) Repeals judiciary salary commission. Repeals provision that “[Judicial] compensation shall not be decreased during their respective terms of office, unless by general law applying to all salaried officers of the State.” Died in committee.

Hawaii HB 1918 (2006) Repeals judiciary salary commission and replaces with commission on salaries to establish salaries for most state elected and appointed officials. Repeals provision that “[Judicial] compensation shall not be decreased during their respective terms of office, unless by general law applying to all salaried officers of the State.” Approved by voters 53%-47% in November 2006.

Michigan HJR 61 (2009) Provides that the salaries of all judges are to be reduced 5% for three years starting in 2011. Died in committee.

Michigan SJR 21 (2009) Provides that the salaries of all judges are to be reduced 5% for three years starting in 2011. Died in committee.

Michigan SJR 2 (2011) Provides that the salaries of all judges are to be reduced 5% for three years starting in 2012. In Senate Committee on Reforms, Restructuring and Reinvention.

Montana HB 602 (2005) Amends guarantee of non-diminishment to require judges decide cases in 90 days or have salary revoked. Obtained majority (55-44) but not two-thirds required (67) in House.

North Carolina HB 1494 (2001) Repeals provision that “salaries of Judges shall not be diminished during their continuance in office.” Killed in House Rules Committee.

New Mexico SJR 6 (2000) Repeals provision that “[Magistrate court judges] shall receive compensation as may be provided by law which compensation shall not be diminished during their term of office.” Approved by Senate Judiciary Committee. Died on Senate floor.

New Mexico SJR 6 (2001) Repeals provision that “[Magistrate court judges] shall receive compensation as may be provided by law which compensation shall not be diminished during their term of office.” Approved by Senate Judiciary Committee. Died on Senate floor.

Four legislatures have adopted statutes to alter retirement (Indiana 2011; Kansas 2003 & 2010; North Carolina 1992; Vermont 2003). Moreover, Arizona has advanced a proposed change for the 2012 ballot while New York voters will probably address the issue in 2014. This marks a trend over the last several year in particular of state legislatures confronting judges living longer and the question of whether there should be any limits on service at all.

State by state breakdown below the fold.

Alabama

In the last decade, Alabama’s House and Senate have at various times both passed constitutional amendments for the elimination of mandatory judicial retirement and rejected them as well.

Arizona

All efforts since 1990 to change the state’s mandatory retirement age of 70 have focused on increasing it to 75. The first round of bills (2002-2004) met with some success in the House but not the Senate. A second round (2005-2006) included a Senate effort to increase for the state’s main trial court judges (Superior Court) only. The Senate approved, the House balked. The third and continuing round (2007-2011) tied the increase to 75 with changes to the state’s merit selection system. Such a connective bill was passed in 2011 and is set to be voted on in 2012. Under SCR1001 the mandatory retirement age would go to 75, but the composition of the state’s merit selection commissions would be altered.

Florida

As with Arizona, the Florida interest in changing the mandatory retirement age was connected to changes to judicial selection. Bills introduced in 1994 and 1996 would have raised the limit or allowed the legislature to do so at a later date. The constitutional amendment that appeared on the ballot excluded the reference to the mandatory retirement age.

Hawaii

In 2005, Hawaii was faced with a Republican Governor (something which had not happened since 1962), a very Democratic legislature, and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a standalone constitutional amendment eliminating the retirement age which went down to a nearly 2-1 defeat. A 2008/2009 effort to increase the age to 80 for justices and judges appointed after November 4, 2008 (i.e. after the Republican governor would be term limited out of office) died in a conference committee.

Indiana

Kansas

Kansas had been considering a change to its statutes regarding mandatory judicial retirement at 70 for several years before a 2002 Supreme Court order reset the dynamics. In March of that year, in response to legislative cuts to the courts, the Supreme Court entered an order for emergency surcharges on various court filings, fees, and fines. The language of a 2000 bill was then reintroduced in 2003 to increase the mandatory retirement age for judges, even the Court of Appeals, except the Supreme Court. That version was enacted. It was not until 2010 that the law was further amended to include the Supreme Court in the increase.

Louisiana

Louisiana has had two efforts to increase the retirement ages of its judges. The first was in the early 1990s and sought an increase from 70 to 75. It was put up on the ballot in 1995, along with 14 other items, as Amendment 4. It was one of only 2 proposals to lose. The loss can at least in part be attributed to bad timing; the same 1995 ballot included as Amendment 2 term limits for the legislature. It passed overwhelmingly 75%-25%, making the “mere” 62%-38% drubbing Amendment 4 took somewhat remarkable. Thereafter the issue lay dormant for almost a decade until 2003 when a change was proposed to allow judges to serve out the term in which they turned 70. Like its 1995 its counterpart it was one of 14 items on an October ballot. The 2003 effort, however, succeeded.

Michigan

Massachusetts

Minnesota

Missouri

Missouri is one of only a handful of states that have a different retirement age for trial and appellate judges. Moreover, municipal judges have a higher retirement age (75) than that of the judges of all the other courts (Circuit, Court of Appeals, and Supreme Court = 70).

North Carolina

New Jersey

New York

Ohio

Pennsylvania

Throughout the 1990s several attempts were made to extend judicial terms to the end of the calendar year a judge turned 70.The extension was added onto a bill related to reapportionment, but approved by the voters in a separate vote in May 2001 where it won on a 2-1 vote.

South Dakota

Texas

The 2007 Texas amendment noted below was the first effort in a decade to change the state’s judicial retirement. It was one of 16 ballot items voters cast ballots on in November 2007, all of which passed.

Virginia

For each of the past 5 years it appeared that Virginia General Assembly would raise the mandatory retirement age for judges and in each one of those years it failed, often at the last minute. Part of the challenge is the statutory placement of the law itself; Virginia Code 51.1-305(B1) not only sets 70 as the mandatory age for judges, but for members of the state Corporation Commission who are also members of the Judicial Retirement System. Trying to craft a bill that does, or does not, also change the retirement provisions for the members of the Commission has been a sticking point. The result has been numerous attempts, including three tie-vote-failures in committee.

Vermont

When originally proposed in the Vermont Senate, the bill to simply eliminate the retirement age. A committee amendment changed it to a range to be set by the legislature instead. The legislature would later opt for the high end, passing a statute in 2003 to set it as being the end of the calendar year the judge turns 90.

Washington

Wyoming

It should be noted that of the 11 states that give their legislature some role in the confirmation of appellate judges:

• 6 give at least some appellate  judges a decade or more on the bench between reconfirmations: Delaware (12 years), Hawaii (10 years), South Carolina (10 years), Utah (Supreme Court: 10 years), Virginia (Supreme Court: 12 years),  and New York (Court of Appeals: 14 years)
• 3 give reconfirmation to the House and Senate: Connecticut, South Carolina, and Virginia
• 3 remove the legislature outright from reconfirmation: Hawaii (judicial nominating commission); Maryland and Utah (retention election)
• 2 at least have the option of lifetime or near-lifetime appointment: Rhode Island (life) and New Jersey (until 70 after reconfirmation)

Roles of legislatures in appellate judicial re-confirmation

Connecticut: 8 year term for Supreme Court and Appellate Court. Judicial Selection Commission evaluates incumbent judge, with statutory presumption “that each incumbent judge who seeks reappointment to the same court qualifies for retention in judicial office” and provides burden on commission to demonstrate otherwise (see 51-44a (e) and (f), of the Connecticut General Statutes). Commission sends reappoint/don’t reappoint recommendation to Governor who renominates incumbent judge. Legislature jointly reconfirms.

Delaware: 12 year term for the Supreme Court. Governor renominates. Senate reconfirms.

Hawaii: 10 year term for Supreme Court and Intermediate Appellate Court. Judicial selection commission reappoints.

Maine: 7 year term for Supreme Judicial Court. Governor renominates. Joint House/Senate legislative committee recommends reconfirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.

Maryland: 1 year (at least) initial term for Court of Appeals and Court of Special Appeals. Yes/no retention election. 10 year subsequent term.

New Jersey: 7 year initial term. Governor renominates. Senate reconfirms. Service until 70 for subsequent term.

New York (Court of Appeals, state’s court of last resort): 14 year term for Court of Appeals. Commission on Judicial Nomination resubmits names along incumbent’s to Governor. Governor renominates incumbent or nominates new person. Senate confirms or reconfirms.

NOTE: the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature in terms of reconfirmation. The Governor elevates and may reappoint to the Appellate Division from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”). For example, when his 14 year term in the trial court ended in 2011, the Hon. Henry J. Scudder had to run for re-election and then be reappointed back to the Appellate Division, Fourth Department (see story here).

Rhode Island: N/A (Serve for life)

South Carolina: 10 year term for the Supreme Court, 6 year term for the Court of Appeals. Judicial Merit Selection Commission evaluates incumbent judge and all others seeking position. Commission sends names to Legislature. Legislature jointly reappoints or appoints someone else. (See Title 2, Chapter 19 S.C. Code)

Utah: 3 year (at least) initial term. Yes/no retention election. 10 year subsequent term for Supreme Court, 6 year subsequent term for Court of Appeals.

Virginia: 12 year term for the Supreme Court, 6 year term for the Court of Appeals. Legislature jointly reappoints or appoints someone else.

But the question arises: why Senate confirmation? There’s the case for reference to the U.S. Senate and its role in federal judicial confirmations. And this was consistent when a) state senators were elected by counties to represent the county as a whole (as in New Jersey) or clusters of counties (as in New York) and b) trial judges (and occasionally appellate judges) were picked by districts made up of clusters of counties.

Thanks to one person/one vote decisions by the U.S. Supreme Court over the years, the practice of Senate districts following county lines is over. The practice of appellate judges being chosen based on geography is also on the decline with only 10 states continuing to use the practice for courts of last resort and 17 of 40 states with intermediate appellate courts using district based selection (although Montana may buck the trend in 2012, Oregon voters rejected the idea 2-1 in 2006).

Moreover, as I noted in March, such proposals have fared much better in state senates than in state houses, and history bears this out. In short, when the power to confirm has been handed solely to the state senate, it has had mixed support in the state’s house. The only way it happens, normally, is when there is a litany of other issues in play.

When does Senate confirmation of appellate nominees come into a constitution?

• Conventions changing entire constitution: Delaware, Hawaii, and New Jersey
• Constitutional amendment changing most/entire Judiciary Article: Maryland (1970 attempt) and Utah
• Constitutional amendment changing judicial selection only: Maryland (1976), New York
• Constitutional amendment changing most/entire Executive Branch Article: Maine, Vermont

In the case of Maryland (1976) and New York (1977) the amendments to have Senate confirmation met with lower House approval as part of a package of bills related to the courts.

• Maryland’s 1976 attempt for merit-selection-with-Senate-confirmation was part of a package of bills that included constitutional amendments guaranteeing every county would have at least 1 circuit judge (House Bill 1048), giving District Court juvenile jurisdiction (SB 219), and giving the state’s Chief Judge the power to recall retired judges back into service (SB 817). Voters approved 16 different items on the ballot that year.
• Similarly, New York’s 1977 shift to end elections and have merit-selection-with-Senate-confirmation was one of four judiciary-related constitutional amendments, including a revamp of the state’s entire judicial governance structure and the creation of a commission on judicial conduct. The fourth item, changes to the jurisdiction of town, village and (most) city courts, was rejected.

This institutional inertia may explain some 2011 activity. Consider the following:

• The original Florida House proposal HJR 7111, introduced March 22, 2011 included nothing about Senate confirmation of justices of the planned modified supreme court with civil and criminal panels. The only mention of the Senate was a provision stripping the power of the court(s) to name their chief justice and giving it to the Governor with Senate confirmation. Six days later, SJR 1664 requiring Senate confirmation for the Supreme Court was passed by the Senate Judiciary Committee. On April 5, the Senate Governmental Oversight and Accountability Committee gave its approval of SJR 1664. By April 8, SCR 1046) and Oklahoma Senate (SB 621) did not fare as well. The Arizona bill went nowhere. The Oklahoma bill moved through the Senate and was not even brought up for a House committee hearing.

Roles of legislatures in appellate judicial selection

Both chambers

Connecticut: since the 1818 Constitution. An 1880 amendment (Article XXVI) allowed for the Governor to nominate, but still required confirmation by both chambers. A 1986 amendment added merit selection, permitting the Governor to nominate only from those names submitted by the Judicial Selection Commission.

Rhode Island: since the 1842 Constitution and kept as part of the 1986 constitution. A 1994 amendment added merit selection, permitting the Governor to nominate only from those names submitted by an independent non-partisan judicial nominating commission.

South Carolina: since the 1776 Constitution and kept as a part of the 1778, 1790, 1861, 1865 and 1868 constitutions, plus a 1973 revision to the judiciary article. A 1997 constitutional amendment added merit selection allowing the legislature to elect only from those names submitted by the Judicial Merit Selection Commission.

Virginia: since the 1776 Constitution and kept as part of the 1850, 1861, 1864, 1870, and 1902 constitutions.

Senate only

Delaware: since the 1897 Constitution. The 1776 Constitution specified a joint ballot of both chambers of the general assembly and the “president” (i.e. governor) of the state. The 1792 and 1831 Constitutions placed the power of appointment solely in the hands of the Governor.

Hawaii: since the 1949 Constitution.

Maryland: since a 1976 constitutional amendment. The 1776 Constitution gave appointment to the Governor with the Council “for the time being” and put it solely in the hands of the Governor via an 1837 amendment. Maryland’s 1864 Constitution provided for direct election of the judges of the top court (Court of Appeals), but provided the Governor with Senate confirmation would select the chief judge. The 1867 Constitution made 7 of the 8 chief judges of the state’s judicial circuits the state’s top court and provided the Governor with the confirmation of the Senate would select the chief judge of the Court of Appeals. This practice continued until a 1943 constitutional amendment separated the roles of chief circuit judge from judge of the Court of Appeals but still required direct election. A 1960 amendment reaffirmed direct election, while changing the geographic boundaries.

It should be noted that the Maryland proposal was initially rejected in 1970 (1970 version) and included most courts in the state (judges of the Court of Appeals, intermediate courts of appeal, Circuit Courts, and the Supreme Bench of Baltimore City), increased terms of office to 15 years, and made revisions to the power of the Commission on Judicial Disabilities which had just been created in 1966. The successful 1976 version focused exclusively on merit selection with Senate confirmation for appellate courts only.

New Jersey: since the 1844 Constitution. The 1776 Constitution made the Governor and Council the state’s top court (Court of Appeals). The current 1947 Constitution replicated the Governor-appoints-Senate confirms system of the 1844 Constitution, but with a significant change. Rather than being re-confirmed every 7 years, the justices would face only 2 Senate confirmations: one for their initial appointment and a second after 7 years. If reconfirmed a second time, they would remain in office until age 70.

New York Court of Appeals (state’s court of last resort): sporadically since the 1777 Constitution. Under the 1777 Constitution, a Council on Appointments made up of 4 Senators chosen by the Assembly, plus the Governor (to break ties) was used. The 1821 Constitution changed this to a Governor-appoints-Senate-confirms system. The 1846 Constitution created a bifurcated election system: 4 of the 8 judges would be elected by the statewide, the other 4 would be locally elected judges of the general jurisdiction court (confusingly called the “supreme court”) “having the shortest time to serve.” A new constitution was voted on, section by section, in 1869; the judicial article was the only one approved. That new article provided for statewide election. The 1894 Constitution and 1938 Constitution continued the statewide election system. A 1977 amendment that revamped much of the Judiciary Article created the present merit-selection-Senate-confirmation system.

10/24/11 update: Selection to the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature. The Governor alone elevates from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”).

Utah: since a 1984 constitutional amendment. The original 1895 constitution provided for statewide election. The 1984 amendment overhauling the entire Judiciary Article provided for the present merit-selection-Senate-confirmation system. A subsequent 1992 amendment increased the time for the Senate to consider nominations.

Vermont: since a 1971 constitutional amendment. The 1793 Constitution provide for joint election by the unicameral House and Executive Council, a practice that was continued when the Council was made the Senate via a 1836 amendment. An 1890 effort to shift this to the Senate alone was rejected by the Senate itself but was incorporated into the 1971 revision of the state’s entire Judiciary Article.

Hybrid

Maine: since a 1975 constitutional amendment (L.D. 25). The 1820 Constitution in place when Maine was separated from Massachusetts and became a state kept the Massachusetts practice of supreme court selection method of governor-appoints-and-executive-council-confirms. The 1975 amendment abolishing the Council created the current procedure for confirmation: the Governor nominates and a Joint House/Senate legislative committee recommends confirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.

HB 298 Exempts court interpreters who appear at the request of the circuit court, family court, or district court from parking violations for expired meters.

HB 301 Directs into the judiciary computer system special fund fees collected for electronic document certification, electronic copies of documents, and for providing bulk access to electronic court records and compilations of data.

HB 575 Extends the five per cent legislative salary decrease from June 30, 2011, to June 30, 2013. Applies the five per cent salary reduction to executive and judicial branch positions

HB 1038 Amends retirement benefits for judges and other state/county employees who become members of the employees’ retirement system after June 30, 2012.

HB 1333 Increases small claims jurisdiction from $3,500 to $5,000.

HR 171 Urges Judiciary expedite selection for Kona judiciary complex and consider La’i’Opua as a potential site.

HR 174 Requests Supreme Court study implementation of Hawaii Uniform Collaborative Law Act.

SB 1073 Increases the amount of surcharges for indigent legal fees. Requires biennial review and report by fund administrator.