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Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

March 19th, 2013

I’ve mentioned in the past the sheer volume of bills, particularly in the last 3 years, to increase or eliminate the mandatory retirement age for judges. So far while there has been a great deal of activity no state has been able to get an increase or elimination either onto the governor’s desk or before the voters.

Hawaii in particular looks to be the most likely to get an increase or elimination, but it not at all clear how the state legislature will fare and how the voters will react. Hawaii has a particular history with the subject of mandatory judicial retirement, one that does not suggest adoption is certain.

2005-2006 session: Eliminate it

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise it

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Increase it and/or work around it

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Increase it and/or work around it (again)

Despite the loss in 2012, the legislature appears inclined to try and repropose the judge emeritus concept again to voters. HB 275 and SB 346 effectively cut and paste the language that was on the November 2012 ballot. The difference here would be that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

SB 650 of 2012: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

HB 275 of 2013 (as approved by House): The chief justice may appoint judges and justices who have retired as emeritus judges, permitting the appointed judges and justices to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per appointment.

SB 346 of 2013: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

 HB 275 as amended was approved unanimously by the full House February 28.

HB 792, SB 886 and SB 1022 all increase the mandatory judicial retirement age from 70 to 80. Of the three, it is SB 886 which has had the greatest success; it was approved unanimously by the Senate February 15 and unanimously by the House Judiciary Committee March 7. The next hurdle is the House Finance Committee. Despite the swift passage so far, it could be delayed up to a year and carried over until the 2014 session (as occurred with SB 650, mentioned above).

The latest status report on the bills in Hawaii and the other 16 states considering the issue this session are below the fold.

» Read more: Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

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Bills to allow more guns into courthouses advance in six states

March 18th, 2013

A litany of legislation has been introduced in the 2013 to allow more people to carry firearms into U.S. state courthouses. Today I’ll be looking at the bills that have moved or are moving in this regard.

Arizona

Current law in Arizona leaves the question of carrying of weapons to the presiding judge of the particular court, with some exceptions. One in particular is that a peace officer or retired peace officer may only carry if a) they have the presiding judge’s permission or b) they are in the court to provide court security or respond to an emergency (A.R.S. § 38-1102)

HB 2516 Effectively removes the presiding judge’s authority in this area and specifically allows peace officers acting in an official capacity and carrying official peace officer identification to carry firearms in court. A floor amendment added a proviso: a presiding judge may establish rules or policies consistent with the new law enforcement carry authorization provision “for the protection of the court”.

The bill as amended was approved by the full House on February 28 and the Senate Judiciary Committee March 11.

Georgia

I mentioned a few weeks ago the situation in Georgia; by law, firearms are not generally permitted inside the state’s courthouses and there is a specific crime of carrying in a courthouse (O.C.G.A. § 16-11-127(b)(2)), but there are 16 categorical exceptions for people like law enforcement, certain judges, certain retired judges, prosecutors, etc.

HB 512 would effectively allow anyone with a concealed weapons permit to carry into a courthouse UNLESS the court provided security screening at the doorway. Specifically, it provides

A license holder shall be authorized to carry a weapon in a government building or courthouse where ingress into such building or courthouse is not restricted or screened by security personnel during the hours the government building or courthouse is open for business. A person who is not a license holder and who attempts to enter a government building or courthouse with a weapon shall be guilty of a misdemeanor. A person who enters or attempts to enter a government building or courthouse where ingress is restricted or screened by security personnel shall be guilty of a misdemeanor; provided, however, that a person who exits such building or courthouse or leaves such location upon his or her observation that such building or courthouse has security personnel restricting or screening ingress into such building or courthouse shall not be guilty of violating this subsection

HB 512 was met with surprise by judges, who have now come out in opposition. Despite the protest by judges, the bill was approved by the full House on March 7.

In addition to HB 512, HB 60 amends an existing categorical exemption and would allow all retired state and federal judges to carry. It was approved by the full House February 13.

Kansas

Like Georgia, Kansas provides a general prohibition and a specific crime of carrying of firearms into courthouses, with specific exception for certain judges and some others (K.S.A. § 21-6309 & 75-7c10).

HB 2055, echoing Georgia’s language, would effectively allow anyone with a concealed carry permit to enter a courthouse unless the court provides “adequate security” defined as screening at the front door.

“Adequate security measures” means the use of electronic equipment and personnel at public entrances to detect and restrict the carrying of any weapons into the state or municipal building, including, but not limited to, metal detectors, metal detector wands or any other equipment used for similar purposes to ensure that weapons are not permitted to be carried into such building by members of the public.

An amendment to re-establish the ban on courthouse carrying failed 60-61 on the House floor.

North Dakota

Existing law makes it a crime to carry a weapon into ”publicly owned or operated buildings”, including courthouses, with several exceptions for certain judges, law enforcement, etc. (North Dakota Code 62.1-02-05)

Like the other bills, HB 1366 would effectively allow anyone with a concealed carry permit to enter a courthouse.

Unlike the Georgia and Kansas bills, there is no exception for instances where the court provides screening at the door. Also unlike the other bills, this one would appear to allow out-of-state residents to carry in to North Dakota courthouses.

This section [prohibiting carrying into "publicly owned or operated buildings"] does not apply to…An individual possessing a valid concealed weapons license from this state or who has reciprocity under section 62.1-04-03.1 authorizing the individual to carry a firearm concealed…

HB 1366 was approved by the full House February 27 and has a hearing before the Senate Judiciary Committee March 19.

Another North Dakota bill (SB 2145) would allow all municipal court judges in the state to carry firearms into their courthouses (currently, only municipal court judges who are licensed attorneys may do so). SB 2145 was approved by the full Senate on January 23 and is set for a hearing before the House Judiciary Committee on March 20.

Oklahoma

Existing law (21 Okl. St. § 1277) provides a general ban on carrying firearms into a “structure, building, or office space which is owned or leased by a city, town, county, state, or federal governmental authority for the purpose of conducting business with the public” such as a courthouse.  There are categorical exemptions for judges, law enforcement, etc.

HB 1723 as introduced expands the list of judges who may carry into a courthouse to include municipal court judges. As amended however, the bill goes farther, allowing peace officers on active duty to carry their weapons anywhere in the state and making other changes to where and when off-duty peace officers may carry. The bill, as amended, was approved by the full House March 14.

Wyoming

State law (Wyo. Stat. § 6-8-104) provides a concealed carry permit does not allow a person to carry into “any courtroom, except that nothing in this section shall preclude a judge from carrying a concealed weapon or determining who will carry a concealed weapon in the courtroom”. There is no specific penalty for violation of this provision. In 2012, a local judge issued an administrative order banning all weapons from the courthouse, not just his courtroom.

HB 216, was introduced to make it a felony to carry a firearm into a courtroom, provides a presiding judge may carry a weapon into courtroom and waive the prohibition on carrying in the courtroom. The bill, however, makes no mention of carrying into a courthouse and proponents are  clear they intended the bill to continue to allow for courthouse carrying.

 

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Kentucky becomes fourth state this session to consider letting state chief justice or supreme court redistrict state’s courts and reallocate judgeships

February 25th, 2013

I mentioned earlier in February that 3 states (Kansas, Missouri, and to a limited extend Wyoming) are considering allowing their supreme court and/or chief justice reallocate judgeships and even redraw judicial circuit/district lines based on workload assessments and without legislative involvement. I also noted that Iowa had effectively done both in the last several years. Now Kentucky is considering a similar effort to give control of the judicial redistricting and resource allocation process to the judiciary.

Kentucky HB 391 would amend the state’s constitution to include two new elements.

  1. The Chief Justice, not the legislature, would redistrict the state’s District and Circuit judicial lines every 10 years based on the census AND in reflection not just of population but “to reflect workload.” The language echoes a 2003 law adopted in Iowa (HB 573, now Iowa Code 602.6107) that requires the supreme court redistrict every 10 years, starting in 2012, based on “the most efficient and effective administration of the district court and the judicial branch.”
  2. The Chief Justice, not the legislature, would reallocate judgeships, similar to the scheme enacted in 2011 in Iowa (SB326 now Iowa Code  602.6113). Under the existing Kentucky constitutional provisions the number of judges in each judicial district or circuit are determined by the General Assembly upon a certification of necessity by the Supreme Court.

Kentucky HB 391 is currently before the House Elections, Constitutional Amendments, and Intergovernmental Affairs Committee.

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Posted in Structure Changes

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Effort to increase judicial retirement age fails for 7th year in a row in VA, faring better in other state legislatures

February 12th, 2013

It appears that for the 7th year in a row, an effort to increase the mandatory retirement age of 70 for Virginia’s judges will fail, but similar efforts in other states are showing signs of movement.

A full list of all such effort to eliminate mandatory judicial retirement from 1990-2010 is here.

A list of what states have what mandatory judicial retirement ages is here.

Hawaii: The history of Hawaii’s interest in increasing its judicial retirement age is a complex one. When the Democrat-dominated legislature faced the prospect in 2006 of having a Republican governor appoint new judges to the state’s courts, they swiftly put onto the ballot an effort to raise the retirement age. Numerous political leaders, including the Democrat Attorney General came out against it and the effort failed. In the last several years, however, the effort has been renewed. SB 886 of 2013, approved by the Senate Judiciary Committee on January 29, would increase the age from 70 to 80.

Indiana: SB 124, which would outright eliminate the mandatory retirement age of 75 for appellate judges, was approved by the Senate Judiciary Committee on February 7. Indiana in 2011 eliminated the mandatory retirement ages for its trial courts.

Michigan: SJR 5 of 2013 picks up where SJR 21 of 2012 left off in pushing for an outright elimination of the state’s mandatory judicial retirement age of 70. The 2012 bill, introduced late in that session, was approved by the Senate Judiciary in September 2012. The 2013 version has already re-passed the Senate Judiciary Committee on January 31.

North Carolina: HB 12 would increase the state’s judicial retirement age from 72 to 75 and is currently pending in the House Judiciary A Committee.

New York: The state legislature already approved in 2011 (SB 5827) an effort to increase the mandatory retirement age for the judges of top appellate court from 70 to 80 and to allow judges for the state’s main trial court to be certified for 2-year periods from age 70-80. SB 886 of 2013 is the second passage required for state constitutional amendments. If approved in 2013 or 2014, it would go to the voters on the 2014 ballot.

Pennsylvania: While lawsuits have been filed against the state’s existing mandatory retirement age of 70 as a form of age discrimination, SB 85 of 2013 would eliminate it legislatively. That bill is currently pending in the Senate Judiciary Committee. Update 2/13/13: A House version (HB 79) would up the age from 70 to 75. h/t to Pennsylvanians for Modern Courts for the pointer.

South Carolina: The effort to eliminate the judicial retirement age of 72 (SB 71) is pending in the Senate Judiciary Committee.

Virginia: Like prior efforts,  SB 740 / SB 762 of 2013 met with initial success and was approved by the full Senate on a 30-10 vote in January. However, the bill was assigned to the House Committee on Courts of Justice, Civil Subcommittee, which killed the bill on a 4-4 tie vote in 2012 killed it again in 2013 on a vote vote.

Washington State: HB 1266 / SB 5046 would allow district court judges only to serve out the term in which they read age 75 (currently they have to resign the end of that year). The House bill was approved by the House Judiciary Committee on February 5. The Senate version was approved by the full Senate 48-0 on January 30.

Wyoming:  I’ve noted the efforts here. In short the House has approved a plan (HB 167) to increase the mandatory retirement for supreme court and district court judges from 70 to 75 and imposes a mandatory retirement age for circuit judges at 75 (currently, they have none). This was after Senate leadership balked at the House’s original idea (HJR 1) to simply eliminate the mandatory retirement age.

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Wyoming 2012 Legislative Year in Review

January 9th, 2013

New laws and resolutions affecting the courts enacted or adopted by the Wyoming legislature in 2012 include the following:

SB 40 Sets judicial salaries.

SB 87 Adds representative of the judicial branch on the state employee compensation commission. Makes representative non-voting member.

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Posted in Year in Review

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Missouri and Wyoming bills would give state supreme courts power to reallocate judgeships/judicial positions

December 10th, 2012

The vast majority of state constitutions give the chief justice and/or the state’s supreme court authority as the “administrative head” of the entire branch. Despite this, in most states supreme courts are bound to statutes allocating certain numbers of judges to individual counties/district/circuits. Several efforts have been made to give state supreme courts such discretion, the latest coming in Missouri and Wyoming.

Wyoming’s SB 11 deals with a provision in law that requires every Circuit Court (the state’s main limited jurisdiction court) have at least 1 full-time magistrate in each county in which a Circuit Court judge doesn’t already reside. SB 11 would provide the decision on whether a county gets a full-time magistrate would rest with the state’s supreme court.

Missouri’s SB 21 allows the state’s supreme court to transfer Circuit Court (the state’s main general jurisdiction court) judicial positions from one circuit to another “as the administration of justice requires”.

There are restrictions on the transfers, however. The position could only be moved from one circuit to another with the position became vacant (i.e. the current judge or associate judge retired, died, etc.) In addition, the supreme court is given criteria to use :

  1. Analysis of a judicial workload study
  2. Whether litigants in the circuit have adequate access to the courts
  3. Population of the circuit
  4. Judicial duties and travel time involved in the circuit
  5. Other criteria that the supreme court deems relevant

Finally, the number of judicial positions as of August 28, 2013 would be set and “any supreme court order changing the total number of judicial positions, through either creation or elimination, shall be null and void.”

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Election 2012: The close calls and why non-votes killed Hawaii’s Amendment 2 & Wyoming’s Amendment C

November 15th, 2012

Alabama’s Local Questions: 2 narrow losses, 1 win

I’ve mentioned before the constitutional quirk in Alabama whereby changes or increases in court filing fees required an amendment in the state’s constitution in many instances, albeit amendments voted on by only the county affected. The 3 items on the ballot in November 2012, all of which would have increased courts fees for various court or law library needs, all failed. In Marion County it was no contest: the proposal failed 46-54. The other two narrowly lost; the Covington County Local Amendment failed 49.58 to 50.42%, a margin of 88 votes. Similarly Etowah County Local Amendment 2 only failed 49.71 to 50.29%, a margin of 51 votes. While it is not clear the legislature will take these matters up again, the narrow losses are interesting.

Hawaii Amendment 2 failed 49.6% to 39.9% with 10.4% not voting

The Amendment would have authorized the use of judges forced into retirement for reassignment/recall in 3-month stretches. However, the state’s constitution requires “a majority of all the votes tallied upon the question, this majority constituting at least fifty per cent of the total vote cast at the election” making a non-vote the equivalent of a no. The breakdown was 216,655 in favor with 174,190 opposed and 45,513 blank votes. If the blanks had gone 5% in favor to 95% against Amendment 2, it would have won 51-49%.

Wyoming Constitutional Amendment C failed 48.99% to 35.32%, 10.52% under votes

Like Hawaii’s Amendment 2, Wyoming’s Amendment C dealt with the “internal mechanics” of the judiciary. In Wyoming’s case, the amendment would have eliminated provision that district court commissioners appointed by the court may act only 1) in the absence of the district judge from the county or 2) where it is improper for the district judge to act. Like in Hawaii, the amendment required a majority of all ballots cast in the election. With 250,701 ballots cast, the amendment needed at least 125,531 but got only 122,824 versus 88.562 against and 26, 419 under votes/non-votes. If the under votes had gone 10% in favor to 90% against Amendment C, it would have won 51-49%.

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Posted in Election 2012

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Wyoming Joint Judiciary Interim Committee meets, will examine court reporters and transcript fees, purchasing by state supreme court

October 26th, 2012

The Wyoming legislature’s joint judiciary interim committee is meeting October 25 & 26. On the agenda is an examination of  court reporters and transcript fees, recording of court proceedings, and transcripts in criminal cases. In addition the committee will discuss the purchase of official reporter and session laws for libraries or other offices by the Supreme Court.

Other topics include juvenile sentencing, eminent domain, seismic exploration, regulatory takings, private transfer fees, the Community Juvenile Services Act, child support guidelines tables, law enforcement officer authority and liability on the Wind River Indian Reservation, and wiretap authority.

 

 

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Posted in Interim Activities, Other, Salary & Budget

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Wyoming Constitutional Amendment C: What exactly is “chambers business”?

October 16th, 2012

Wyoming HJR 1 (of 2011) / Constitutional Amendment C , on the ballot this November, would eliminate an existing provision that district court commissioners may act only 1) in the absence of the district judge from the county or 2) where it is improper for the district judge to act.

Article 5, Section 14. District courts generally; commissioners. The legislature shall provide by law for the appointment by the several district courts of one or more district court commissioners (who shall be persons learned in the law) in each organized county in which a district court is holden, such commissioners shall have authority to perform such chamber business in the absence of the district judge from the county or upon his written statement filed with the papers, that it is improper for him to act, as may be prescribed by law, to take depositions and perform such other duties, and receive such compensation as shall be prescribed by law.

In this first look at Wyoming’s Amendment C I’ll take a look at what exactly is “chamber business”?

Wyoming’s Article 5, Section 14 is almost identical to Article VI, Section 14 of the 1879 California Constitution.

The Legislature may also provide for the appointment, by the several superior courts, of one or more commissioners in their respective counties, or cities and counties, with authority to perform chamber business of the judges of the superior courts, to take depositions, and to perform such other business connected with the administration of justice as may be prescribed by law.

As the 1966 California Constitution Revision Commission noted, the term “chamber business” wasn’t particularly clear.

The existing section [14] raises the  problem of defining ‘chamber business’ since many ‘judicial’ duties can be performed in chambers. To indicate the subordinate nature of duties that officers such as commissioners should be allowed to perform, the phrase ‘subordinate judicial duties’ was used.” (Cal. Const. Revision Com., Proposed Revision (1966) p. 99., as cited in Gomez v. Superior Court, 54 Cal. 4th 293, 305-306 (Cal. 2012))

The phrase was amended out of the California Constitution and replaced with “subordinate judicial duties” in 1966.

The Wyoming Board of Judicial Policy and Administration produced a press release last week to give more details.

The purpose of Constitutional Amendment C is to enhance the efficiency of the district court by removing two obstacles to the court’s use of court commissioners. The state constitution currently allows court commissioners appointed by the district judge to conduct “chambers business”, and it grants the court commissioner authority to act in the absence of the district judge from the county. However, much has changed in the operation of district courts since the 1890 when our constitution was adopted. The statutes impose more duties and deadlines that can be difficult to fulfill promptly when the district court is conducting trials or other business. The amendment would give the court commissioner authority to act in matters beyond “chambers business,” such as emergency hearings in mental health and juvenile cases, where the district judge is within the county, but is otherwise occupied, such as in a jury trial. This would allow the district court to more promptly act on matters of great importance to members of the public.

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Posted in Election 2012, Other

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Wyoming Joint Interim Judiciary Committee meets, will examine possible 4% and 8% budget cuts to judiciary

July 27th, 2012

Wyoming’s Joint Interim Judiciary Committee is set to meet July 30 and 31. On the agenda are presentations on the issue of budget reductions, including plans to reduce the judiciary’s budget by 4% ad 8%.

 

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Posted in Interim Activities, Salary & Budget

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