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.
The last several years have seen numerous challenges to merit selection systems in the state legislatures, with perhaps the most common feature being some sort of legislative confirmation (often but not always in lieu of ending merit selection commissions). Two legislatures, Florida and Tennessee, have outright approved such plans, although the Florida proposal was rejected at the ballot box in 2012 and the Tennessee bill must be approved a second time before going to the voters. Under the 2012 Florida bill, the Senate would have had 90 days to confirm nominees for the state’s supreme court or else the nomination was deemed confirmed. The Senate would have been allowed to call itself back into session for such a confirmation process.
I noted when this subject came up in Florida that, in states where there is some sort of legislative confirmation (House, Senate, or both) there were already examples of a variety of scenarios:
Kansas’ bills to end the state’s merit selection system (HCR 5002 and SB 8 / SCR 1601) and the Tennessee bill approved in 2012 and requiring approval in 2013/2014 (HJR 8 / SJR 2) opt for automatic confirmation. Kansas would have Senate confirmation within 60 calendar days or within 20 days of a new session start. Tennessee provides for confirmation by both houses within 60 calendar days or within 60 calendar days of a new session start. Neither appears to contemplate the chamber(s) coming back into session for confirmations.
Tennessee’s Senate Judiciary Committee considers SJR 2 later today while Kansas’ full Senate is set to vote on SB 8 / SCR 1601 tomorrow.
New laws and resolutions affecting the courts enacted or adopted by the Utah legislature in 2012 include the following:
SB 100 Creates a self-help center within a courts law library. Requires that the self-help center be staffed by licensed attorneys. Allows the self-help center staff to assist court patrons in obtaining and filling out documents. Provides that self-help center staff are to answer questions regarding the court process, law, and options; provide information, but not give legal advice; and offer resources regarding the law library and other avenues for legal assistance.
SB 153 Provides Judicial Council may enact its own rules, consistent with existing law, governing procurement by the judicial branch.
SB 154 Includes court commissioners in the definition of at-risk government employee for purposes of privacy of government-held information related to individuals/officeholders.
SB 169 Allows the Utah Supreme Court to appoint a justice court judge to the Judicial Conduct Commission. Allows the Judicial Conduct Commission discretion to dismiss a complaint against a judge, even if it finds by a preponderance of the evidence that judicial misconduct occurred, if it determines that a public sanction is not warranted.
SB 200 Makes numerous modifications to states justice courts. Establishes and amends procedures to establish and expand the territorial jurisdiction of justice courts. Amends and consolidates the minimum operating standards of justice courts. Amends the Judicial Councils authority to establish rules and procedures concerning the creation and expansion of justice courts. Provides for uniform fees of the justice courts. Requires every prospective justice court judge to attend an orientation program conducted under the direction of the Judicial Council before the justice court can be certified and qualified to hold office. Authorizes the governing body of a justice court to create specialized calendars and exempts judges who hear these calendars from being assigned at random. Modifies the procedures and penalties for failure to comply with continuing education requirements. Modifies the procedures and penalties for failure to comply with compensation limits, limits on secondary employment, and limits on holding elected or political offices and requires the Judicial Council to file a formal complaint for violations. Amends the procedures to appoint a temporary justice court judge and prohibits a retired justice court judge from serving as a temporary justice court judge. Modifies and establishes new standards for when and where a municipality and county may hold justice court and authorizes the Judicial Council to determine when and where justice courts my hold court.
SJR 3 Directs Legislative Management Committee study fines, taxes, and financial issues imposed by the courts and other issues.
In 2009, the U.S. Supreme Court ruled in Capteron v. Massey that some campaign contributions to judicial candidates can be so high that due process requires the judge recuse. The high court failed to specify what amount would trigger recusal, but as I noted in “The Legislature Must Save the Court from Itself”?: Recusal, Separation of Powers and the Post-Caperton World, state legislatures have tried for decades to set specific limits. It now appears Texas’ legislature may join Alabama and California in setting specific recusal limits.
HB 129 of 2013 would require judges of state’s top appellate courts (Supreme Court and Court of Criminal Appeals) recuse if a party, attorney, lawfirm, etc. contributed $2,500 or more to judge’s campaign in last 4 years.
It further provides a way to address funds made via PAC: under a formula an individual’s contribution to the PAC would count as a contribution to the judicial campaign if the PACs total contributions made to all candidates meets (or fails to meet) certain thresholds. This avoids individuals and firms barred by the $2,5000 limit from simply setting up a PAC which then funnels the money to a campaign anyway.
Five states now have specific contribution levels compelling recusal for at least some of the state’s judges, although most do so via rule of court and not statute.
The Utah legislature’s joint interim judiciary committee meets today to consider what items to study during the interim, including:
The debate over merit selection systems has reached a head in the last several years, with strenuous efforts at play to create merit selection systems in states which lack them coupled with vigorous efforts in other states that have merit selection to heavily modify or end their systems.
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
SJR 710 Adds legislative confirmation of nominees
Extend merit to June 30, 2013:
Extend merit to June 30, 2014:
HB 3451 (nominating commission only)
End merit:
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
Utah’s Senate Judiciary Committee yesterday approved SB 100, a bill to require the state’s law library have a self-help center. Under the bill, the center must be staffed by licensed attorneys who are to assist court patrons in obtaining and filling out documents. Staff are specifically required to provide legal information, answer questions regarding the court process, law, and options but expressly prohibited from giving legal advice.
The bill now goes to the full Senate.
Several states make use of judicial performance/evaluation commissions, some of which are then used to inform voters. Utah’s system currently permits a judge who is set to be reviewed to be heard prior to the evaluation (78A-12-203(5)).
(a) Before considering the judicial performance evaluation of any judge, the commission shall notify the judge of the date and time of any commission meeting during which the judge’s judicial performance evaluation will be considered.
(b) The commission shall allow a judge who is the subject of a judicial performance evaluation to appear and speak at any commission meeting, except a closed meeting, during which the judge’s judicial performance evaluation is considered.
HB 328 would remove these provisions. It would also excluded juror responses from being included in the minimum standards; currently judges must receive “an average score of no less than 65% on each survey category“, including legal ability, judicial temperament and integrity, and administrative performance.
The bill is currently pending in the House Rules Committee.
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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. » Read more: Bans on court use of sharia/international law: Pennsylvania bill introduced
