Under the recently introduced SJR 84, the state’s Supreme Court would be banned from reviewing any law enacted by the legislature. However, unlike the other states, this proposal does allow for an “Ad Hoc Court of Constitutional Review” to rule on. The amendment, in full, reads:

The Supreme Court shall not have the power of judicial review over the constitutionality of laws enacted in this state. An Ad Hoc Court of Constitutional Review shall be created to rule on the constitutionality of such enacted laws.

There is no indication of how this “Ad Hoc Court of Constitutional Review” would be formed, its membership, or any other details.

The amendment has been prefiled in the Senate awaiting the legislature’s return to session next week.

The release of President Obama’s long form birth certification has for the most part diminished the interest in  such bills, but not completely eliminated it. Several remain pending, having been carried over from the 2011, while others are newly introduced for 2012.

Under its provisions, all judges/justices of the state’s top appellate courts (Supreme Court for civil matters; Court of Criminal Appeals for criminal ones) would be limited to 12 years in office.

As of the effective date of this act, no Justice shall serve on the Supreme Court for a period of more than twelve (12) years…

As of the effective date of this act, no judge shall serve on the Court of Criminal Appeals for a period of more than twelve (12) years

Given that the judges/justices serve for 1 year or so initial terms (after merit selection appointment) and 6 years in subsequent terms, this would effectively limit them to only 1 initial term, 1 full term and a portion of a second full term.

Given that the effective date of the law is November 1, 2012, the effect would be to remove 2 of the 9 justices of the state’s Supreme Court: Justice Yvonne Kauger (appointed in 1984 and up for a retention election November 6) and Justice Joseph Watt (appointed in 1992).

The impact would be even greater on the Court of Criminal Appeals and could potentially clear the court entirely:

• 2 of that court’s 5 judges, Judge Charles Johnson (appointed 1989) and Judge Gary Lumpkin (appointed 1988) would be out of office effective November 1, 2012.
• The 3 remaining judges (Arlene Johnson, David B. Lewis, and Clancy Smith) are up for retention elections 5 days later on November 6, 2012. If they all lost (a possibility, given that Iowa saw 3 of its Supreme Court justices lose their retention election in 2010, all on the same day) the effect would be to empty the court.

SB 1729 has been prefiled with the legislature set to come into session February 6.

2010

Write up of all 2010 efforts here

2010 saw three efforts make their way out of their respective legislatures. The Oklahoma constitutional amendment would never take force, having been struck down by a federal district court, a determination upheld by the Court of Appeals for the Tenth Circuit in January 2012.

• Louisiana HB 785 & SB 460: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.
• Oklahoma HJR 1056 (Constitutional Amendment): Prohibits the courts to “look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law or international law.” Requires courts adhere only to the U.S. & Oklahoma Constitutions, federal and state law and regulations, and where necessary the laws and regulations of another state.
• Tennessee HB 3768 & SB 3740: Defines “law, legal code, or legal system” means a law, legal code, or legal system used or applied in any jurisdiction outside of Tennessee, including any foreign state, jurisdiction, country or territory of the United States…Notwithstanding any law to the contrary, and subject to provisions of superseding federal treaties, any otherwise enforceable contract which incorporates any substantive or procedural law, legal code or legal system of another state, foreign jurisdiction or foreign country that would violate rights and privileges granted under the United States or Tennessee Constitution is declared to be against public policy of this state and is unenforceable in this state.

2011

Write up of all 2011 efforts here

Despite having far more bills introduced in 2011 than in 2010, there was only one such piece of legislation enacted

• Arizona HB 2064 Defines “foreign law” as “any law, rule or legal code or system other than the constitution, laws and ratified treaties of the united states and the territories of the united states, or the constitution and laws of this state….a court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the united states or conflict with the laws of the united states or of this state.”

2012

15 sharia/international law bans were carried over from the 2011 session. Combined with 18 newly introduced bills this puts the issue front and center for the 2012 sessions. Already there has been activity, with the Florida Senate Judiciary Committee giving its approval to a ban.

Full roster of 33 bills introduced in 2012 in 20 states and their statuses after the jump.

According to this morning’s Wisconsin Law Journal, a state lawmaker is circulating a petition seeking to remove Wisconsin Supreme Court Justice Michael Gableman “because he presided over cases involving a law firm that had represented him without charging legal fees.”

A statement released by the representative on her Facebook page states that rather than impeachment (which would require a finding of “corrupt conduct in office, or for crimes and misdemeanors”) the removal method will be a bill of address. The state’s constitution is silent as to what the criteria for such a removal, however the statement alleges Gableman violated state law, the Code of Judicial Conduct, and Supreme Court rules.

Any justice or judge may be removed from office by address of both houses of the legislature, if two-thirds of all the members elected to each house concur therein, but no removal shall be made by virtue of this section unless the justice or judge complained of is served with a copy of the charges, as the ground of address, and has had an opportunity of being heard. On the question of removal, the ayes and noes shall be entered on the journals.

A bill of address is numerically harder than impeachment: while both require 2/3rds of the Senate, impeachment requires only a simple majority in the House, while a bill of address requires 2/3rds.

This would be the second legislative attempt to remove a judge for failure to recuse in two years. Oklahoma’s HR 1024 of 2011 would have asked the state’s judicial disciplinary commission to remove District Judge Tom Lucas for his refusal to recuse from all criminal cases after a request he do so filed by the county District Attorney.

The last time the issue came up in the mid to late 1990s, several attempts were made to impose the same conditions on not only the legislators enacting such laws, but on judges as well.

In 1997, the same year Louisiana mandated drug testing for certain adult recipients of public assistance (HB 2435), the state enacted a process for random drug testing of all “elected officials” (HB 646). The elected officials plan was struck down in 1998 by the Federal courts when Justice of the Peace Phillip O’Neill and other elected officials challenged the law. (O’Neill v. Louisiana., E.D. La. 1998, 61 F.Supp.2d 485, affirmed 197 F.3d 1169, cert. denied 120 S.Ct. 2740, 530 U.S. 1274, 147 L.Ed.2d 2005).

Undaunted, in 2006 an amendment to the Louisiana constitution (SB 274 of 2006) and bill (SB 361) were introduced that specifically targeted state judges for drug testing and that repeated almost verbatim the text of the law struck down by the federal courts, most particularly in the legislative declaration portion of the bills.

The legislature declares the interest of the state in ensuring that those who are elected to serve in public office as judges in any trial or appellate court within this state are persons who have a respect for the laws they are sworn to uphold and are persons of integrity, sound judgment, reliability, and seriousness of purpose. The legislature finds that judges are in a critical position to protect the citizens of the state of Louisiana from the numerous illegal activities associated with illegal drugs, and to ensure access to courts and other constitutional rights. The legislature finds that the use of illegal drugs by judges will put the citizens of the state of Louisiana in danger because judges who use illegal drugs cannot provide the state and its citizens with fair and impartial trials. The legislature finds that the use of illegal drugs which may impair the physical or mental ability of a judge to function effectively in all aspects of his duties cannot be condoned, and therefore the state has a compelling interest in establishing a requirement that all judges demonstrate that they do not use illegal drugs, without the necessity of showing any measure of individualized suspicion.

Interestingly, when Louisiana tried again in 2010 for a voluntary drug testing (and psychological evaluation) program for elected officials (HB 1352) it was focused only on statewide elected officials in the executive branch listed in Art. IV, Sec. 3 of the state constitution and legislators.

Several similar bills, either targeting judges in particular or sweeping them in as “elected officials”, have been introduced in state legislatures. Many seek to avoid the Fourth Amendment problems found by the O’Neill court by making the programs voluntary. Most recently South Carolina’s Senate in 2008 approved a voluntary plan for testing that state’s judges, however the bill died in the House Judiciary Committee and was apparently never reintroduced.

2011

Ohio HB 343 Mandatory drug testing for Supreme Court Justices, members of the General Assembly, the board of directors of JobsOhio, and recipients of Troubled Asset Relief Program money. Carried over into 2012 session.

Oklahoma SB 538 Mandatory drug testing for Temporary Assistance for Needy Families recipients and all “state elected officials”. Those declining must submit to substance abuse program. Carried over into 2012 session.

Puerto Rico PC 3215 Requires all individuals nominated for a judicial office submit a hair sample for drug testing (previously discussed here). Carried over into 2012 session.

2009

Oregon HB 2635 Mandatory drug testing for Supreme Court and Court of Appeals Judges and other elected officials specified by title. Died in committee.

2008

South Carolina SB 1070 Voluntary for any “popularly elected office or an office elected by the General Assembly”. (In South Carolina, judges are elected by the General Assembly). Approved by full Senate. Died in House.

2007

New Mexico SB 36 Voluntary drug testing for all “elected officials”. Died in committee.

Oregon HB 2306 Mandatory drug testing for Supreme Court and Court of Appeals Judges and other elected officials specified by title. Died in committee.

2006

Missouri HB 1646 Mandatory drug testing for “all state elected officials”. Died in committee.

Louisiana SB 274 (Constitutional Amendment) Requires judiciary commission develop and implement a program of random drug testing for elected judges. Died in committee.

Louisiana SB 361 Requires judiciary commission develop and implement a program of random drug testing for elected judges. Died in committee.

2005

New Mexico SB 20 Voluntary drug testing for all “elected officials”. Died in committee.

Welcome Post-Gazette readers!

Since the last update of this list in October, one piece of legislation has been introduced.  Pennsylvania’s HB 2029 bans court references to any “foreign legal code or system” if doing so would impair constitutional rights.

Full roster of 2010 bills are available. 2011 and 2012 bills after the jump.

2012

2011

HB 1010 Modifies provisions related to normal retirement age for members entering the Uniform Retirement System for Justices and Judges (URSJJ) on or after January 1, 2012. Eliminates the provision whereby a member with 8 years of judicial service may retire when the sum of their age and years of service equals or exceeds 80. Decreases the multiplier used to calculate the retirement benefit for members entering URSJJ on or after January 1, 2012 from 4% to 2%.

HB 1234 Authorizes district courts to use videoconferencing between a courtroom and a correctional or juvenile detention facility to conduct proceedings. Requires a waiver from the defendant or juvenile of the right to be present in the courtroom for a hearing is prior to conducting such proceedings. Provides for the promulgation of rules and procedures by the Administrative Office of the Courts.

HB 1414 Creates Council on Judicial Complaints Revolving Fund. Directs certain civil filing fees be directed to the Fund.

HB 1415 Requires the Attorney General, instead of the Supreme Court and the Administrative Director of the Courts, to oversee the Legal Services Revolving Fund.

HB 2174 Authorizes the Administrative Director of the Courts use the State Judicial Revolving Fund for all expenses related to the district courts, Court of Civil Appeals and the Supreme Court. (Currently fund is restricted to specified expenses.)

SB 510 Requires Administrative Director of the Courts create form to be used to collect data related to the adoption of every child in state. Specifies information to be included.

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.

The other bill is Alabama SB 33 of 2012, a prefiled bill for the next session. SB 33 of 2012 is a constitutional amendment that looks more like HB 607 / SB 61 than HB 597 / SB 62 in that it does not specifically mention “sharia”.

It should be noted that at least some 2011 bills will make a return in 2012; roughly half of states allow bills to be “carried over” from one session to the next. Definitive answers as to which bills will return will be available as the legislatures come back into session in January.

Full roster of bills going back to 2010 after the jump.

2012

2011

2010