I’ve had several readers ask for a synopsis of what is gong on in states to enact, modify, or end merit selection in 2013. This post is intended to respond to those queries. The latest information can always be found at the Gavel to Gavel database located here.
Details below the fold.
Most states use multiple selection methods for their courts, with some judges appointed, others elected, etc. Three states in particular (Connecticut, Maryland, and now Maine) want to end partisan elections for one particular type of court: probate.
First, some background.
Most states do not have separate courts to handle probate matters, instead such matters are handled as a division of another court (Probate Court vs. Superior Court, Probate Division). New Hampshire, for example, consolidated its Probate Court into the newly created Circuit Court, Probate Division only a few years ago. About 15 states do, however, still retain courts whose primary or sole purpose is probate matters
In addition to their unique jurisdiction, what sets these courts apart is that they often have a judicial selection system that is not in keeping with most of the other judges in the state. For example, the judges of Georgia’s higher courts (Supreme, Court of Appeals, Superior, State) are non-partisan races; Probate Court races are partisan.
This year’s particular interest in changing the method of judicial selection started January 23 in Maryland where Orphan’s Court judges are elected on a partisan basis. SB 327 was filed January 23 to require nonpartisan elections instead. An identical House bill (HB 515) was filed a week later on January 30.
The next state to consider the issue was Connecticut, where Probate Court judges also run in partisan elections. HJR 17 is a constitutional amendment that would shift the Probate Court judges into the state’s existing merit selection system, which is used for the state’s other courts (Supreme, Appellate, Superior).
The third state to consider such a move was Maine. HB 369, filed February 19, would end partisan elections for Probate Judges, Registers of Probate and Registers of Deeds. Instead, the offices would be subject to gubernatorial appointment with senate confirmation in the same way all other state judges are currently appointed.
New laws affecting the courts enacted by the Maryland legislature in 2012 include the following:
HB 92 Clarifies the definition of “shielding” in provisions of law relating to the removal of information regarding domestic violence protective orders from the public website maintained by the Judiciary. Specifies that “shielding” means to completely remove all information concerning the proceeding, including the names of the parties and any reference to the proceeding, from the public website.
HB 252 Creates Task Force on Military Service Members, Veterans, and the Courts to study military service-related mental health issues and substance abuse problems and to make recommendations concerning the establishment of a special court for defendants who are military members or veterans.
SB 335 Increases from 6% to 8% of earnable compensation the rate of member contributions for individuals who become members of the Judges Retirement System on or after July 1, 2012.
SJR 3 Increases judicial salaries for 2011-2013.
These amendments required the Orphans’ Court (read: probate court) judges in Prince George’s & Baltimore Counties, respectively, to be attorneys. Because of a quirk in the state constitution regarding amendments affecting only a single county, the Questions required majorities both statewide and in the county at issue itself. Both Questions met with 85%+ approval, about what a similar initiative applying to the City of Baltimore got in 2010 (83% statewide, 88% in the City itself).
The upshot is that in 2 of the state’s 4 counties with a population over 500,000 (plus the autonomous and independent City of Baltimore, population ~620k) attorneys of the probate court must be lawyers. The other counties: Montgomery & Anne Arundel.
The provision changes the state constitution’s prohibition on diminishing of judicial salaries while in office to provide it may not occur “for deductions from such salaries for contributions, established by law from time to time, for pensions as provided for under paragraphs 3 and 5 of Section VI of this Article, health benefits, and other, similar benefits.”
It is not clear what this means for future moves in New Jersey and it remains to be seen if the amendment, adopted after the state supreme court struck down a 2011 law that required judges pay more for their benefits and retirement, will be held to be prospective only, requiring the legislature re-pass the 2011 law.
The amendment adds magistrate judge and additional member of public to Judicial Standards Commission. The result is that the majority of the commission remains laypersons. I mentioned in 2011 there’s be a great deal of legislative interest in changing these commissions, mostly to add more lay persons or to convert the bodies into quasi-appellate courts in order to “punish” judges who reach the “wrong” opinions. While the New Mexico amendment did not appear to come with that sort of freight weighing it down, 2013/2014 legislatures may take (and in the case of Minnesota, will take) the subject up.
Cleans up some confusing language that references two “branches” of the state legislature while the judiciary is referred to as both “the judicial department” and “judicial branch”. The very definition of a technical amendment, it still keeps at least a few references to “judicial department” in the document. It is not at all clear if there’s any interest in going back in for another clean-up bill and as I noted earlier in the election cycle it’s not at all unusual for state constitutions to refer to the judiciary as a “department”.
Voters in Maryland will once again be voting on whether to require certain judges in the state be attorneys. In 2010 voters amended the state constitution to require that Orphan’s Court (read: probate) judges in the city of Baltimore must be attorneys. Question 1 (SB 281 0f 2011) and Question 2 (SB 48 of 2012) would extend that requirement to the Orphan’s Court judges of Prince George’s County and Baltimore County, respectively.
Interestingly, the two bills were at one point intertwined. SB 281 of 2011 as introduced, dealt only with Prince George’s County. It was amended to include Baltimore County, however the state constitution created a sticking point. Under Article XIV, § 1, an amendment dealing with only one county or jurisdiction has to get the approval of a majority of a voters both statewide and in the county/jurisdiction affected. Multi-county proposals aren’t so constrained
If the General Assembly determines that a proposed Constitutional amendment affects only one county or the City of Baltimore, the proposed amendment shall be part of the Constitution if it receives a majority of the votes cast in the State and in the affected county or City of Baltimore, as the case may be. When two or more amendments shall be submitted to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately.
The House amended SB 281 of 2011 to get rid of Baltimore County and thus return the bill to a single county amendment. SB 48 of 2012 was introduced and adopted for Baltimore County.
A majority of states allow at least some judges to be non-attorneys, although in practice attorneys often fill these positions it is not always the case. Moreover, the tendency is to move away from such “lay” judges; in addition to Maryland’s 2010 amendment Georgia voted in 2011 to discontinue the practice of electing lay judges for Municipal Courts (those already serving may continue to do so and be reelected).
Details below the fold
» Read more: Maryland Question 1 & Question 2: double-majorities required to pass, plus what trial judges must be attorneys in other states?
The last several years have seen efforts to make use of the judicial disciplinary process to examine judicial opinions and punish judges for those opinions.
The latest such effort is Maryland’s HB 1061, a constitutional amendment that:
Prior coverage here.
The video below is from the hearing held this afternoon on the bill.
First it was Kentucky, Ohio, and Wisconsin considering public financing for judicial races.
Then Pennsylvania.
Somewhere in between I neglected to mention Maryland’s SB 181, an error I am now rectifying. But first, some background.
In 2011 the Maryland legislature adopted HJR 7, which created a Commission to Study Campaign Finance Law. The 17 member commission is made up of mostly legislators (12) and members of the executive branch (State Administrator of Elections & Executive Director of the State Ethics Commission). The Governor opted to use one of his appointments to name a retired judge to the panel.
The commission was tasked with examining numerous issues, including public financing of campaigns for judicial offices and the costs and practical funding sources for such a system (other than via the state’s general fund). The commission submitted an interim report on December 31, 2011 that made no mention of public financing of judicial elections. Its final report is due December 31, 2012.
Enter SB 181 of 2012, a bill to create a Task Force to Study the Public Financing of Judicial Elections. The sole purposes of this task force, made up of legislators, judges, and others, would be to:
SB 181 requires the Task Force report back on these three elements by December 31, 2012.
The video below is from the February 7, 2012 hearing on the bill.
Maryland’s legislature is just the latest (including Florida, Minnesota, and Tennessee) that may seek to use the state’s judicial disciplinary process to punish or remove judges from office not for misconduct but for their opinions and rulings. (see here and here for prior write-ups in Gavel to Gavel the publication).
HB 1061, as introduced, is an amendment to the state’s constitition that would expand the authority of the state’s Commission on Judicial Disabilities to remove judges from office that:
Judges could be merely reprimanded if they “misinterpreted” the applicable law, as determined by the Commission. Judges found by the Commission to have engaged in the above conduct would be removed from office, forfeit their pensions and “any rights and privileges”, possibly including judicial immunity and permitting the judge to be sued personally.
Complaints to the Commission under these provisions would accepted from any litigant, whether the case in question is pending or concluded.
HB 1061 is before the House Judiciary Committee and set for a March 7 hearing.
Several weeks ago I looked at the historical development of why some states have legislative involvement in judicial confirmation for their appellate courts and whether it was only the state’s senate that had a role or if it was a joint process. To reiterate, one of the big presses in the last year has been to put into place something akin to the “federal model” of senate (only) confirmation. But unlike the federal model, which includes life tenure, almost all these proposals include a reconfirmation at some point.
It should be noted that of the 11 states that give their legislature some role in the confirmation of appellate judges:
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.
Numerous state legislatures in 2011 that have a version of merit selection (Arizona, Florida, Oklahoma) or have considered adopting merit selection (Mississippi, Pennsylvania, Wisconsin) have put in provisions for Senate confirmation. Additionally, Rhode Island (HB 5675) considered removing the state senate’s existing confirmation power with respect to a trial court (Superior Court) and transferring the power to the house.
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.
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.
This institutional inertia may explain some 2011 activity. Consider the following:
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.
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.
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.
