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

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

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

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

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

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

Prior amendments had removed any reference to merit selection.

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

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

Even more interesting was the for/against tallies.

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

Of the remaining 7

Extending current merit selection past 2012

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

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

Put merit selection explicitly in the constitution

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

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

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

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

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

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

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

End merit selection

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

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

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

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.

1. have a handgun carry permit
2. successfully completes 16 hours of POST court security training
3. successfully completes eight hours of POST firearm training on an annual basis
4. be vested with judicial powers and in the actual discharge of those official duties as a judge

The fourth provision was aimed at limiting a judge’s ability to carry to his/her own courtroom.

Dissatisfied with the restrictions, HB 3222 / SB 2942 was introduced. It would effectively eliminate the training requirements (i.e. elements 2 and 3 listed above) from the existing law, allowing any judge with only a carry permit to being a firearm into his or her courtroom.

The matter was heard before the Tennessee House Judiciary Committee’s General Sub-committee on March 21. The plan was ultimately rejected on a 2-4 vote with one member voting present. The video below was from that hearing.

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.

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.

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:

• Refused to enforce applicable law, court rules, or provisions of this constitition or the United States constitution
• Rendered a decision or issued an order that is contrary to applicable law, court rules, or provisions of this constitition or the United States constitution
• Knowingly disregarded applicable law, court rules, or provisions of this constitition or the United States constitution

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.

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.