• issues related to amendments to the Judicial Code
• Medical Malpractice Reform patterned after Texas’s “loser pays attorney fees” provision
• changes regarding who may adopt a child
• animal rights as a property rights interest
• whether to reduce the age from 16 to 14 for children who wish to express their opinion in child custody proceedings
• removal of language from the divorce statute favoring one spouse over the other and providing for equal footing in property matters
• study a process for offers of judgment in civil cases

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

First, some background.

In 2008, the legislature (SB 72) asserted more state-level control over these justice courts and their judges, requiring judges graduate college, be elected, and be subject to the state’s judicial performance evaluation program. In 2011, additional changes were made.  Under SB 143, candidates for justice court judgeships could run as a candidate for more than one justice court judge office. It also removed the requirement that all registered voters in a county vote in the retention election of a county justice court judge and removed the requirement that the governing bodies of a county and a municipality within that county both concur when a justice court judge is permitted to hold office as both a county and a municipal justice court judge. It removed the authorization for a justice court judge to order administrative traffic checkpoints and issue search warrants.

Now in 2012 comes SB 200. This bill

• 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 Council’s 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.

The changes were approved by full Senate 2/29/12 and are now in the House awaiting committee assignment

The bill now goes to the full Senate.

(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.

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

• Patients’ Rights
• Task Force Recommendations to Reduce the Number of People with Mental Health Disorders in Detention or Who Require Law Enforcement Intervention
• Update on County Detention Facility Reimbursement Act
• Reducing the Burden on County Detention Facilities
• Revisions to the Space Flight Informed Consent Act
• Secretary of Corrections: Welcome and Update (Contingent on Appointment of a New Secretary)
• Consumer Lending Update
• Revisions to the Sale of Recycled Metals Act
• Rights of Public Safety Employees

Utah’s Judiciary, Law Enforcement, and Criminal Justice Interim Committee will meet November 16 and consider:

• Child Support Guidelines Amendments
• Peace Officer Standards and Training Council Amendments
• Theft Amendments
• Firearms Revisions
• Competency to Stand Trial Amendments
• Grand Jury Amendments
• Gambling Amendments
• Asset Division in Divorce Proceedings

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.

• Kidnap Offender Registry Amendments
• Sex Offender Registry Chapter
• Civil Commitment Amendments
• Forensic Commitment Amendments
• Housing State Inmates in County Jails
• Child Support Advisory Guidelines Committee Report
• Drug Offender Reform Act (DORA)
• DUI Report

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.