The effort to change the makeup of the Alaska Judicial Council, which serves as both the judicial nominating commission and the judicial evaluation commission in the state, appears dead. The author of the lead bill (SJR 21) withdrew the bill Saturday April 12 after announcing he was unable to get the 2/3rds vote (14 out 20 senators) needed for approval. The plan would have allowed the governor to pick 6 out 10 members of a revised Judicial Council (details here). Meanwhile, the House version (HJR 33) had been dormant pending the outcome of the Senate’s actions on its version. It now appears unlikely that bill will come back up this session.
The effort to change the makeup of the Alaska Judicial Council, which serves as both the judicial nominating commission and the judicial evaluation commission in the state, appears to be stalling.
As I noted the House version (HJR 33) was scheduled for a hearing last week which was cancelled. The Senate version (SJR 21) was forwarded to the Senate floor for a possible vote on Monday April 7, but news reports indicate that some Republicans were refusing to commit to vote yes. Because of the 2/3rds vote (14/20) needed for a constitutional amendment, every Republican (13/20) would need to vote for it and proponents would have to get one of the two Democrats who caucus with the Republicans to vote in favor (1 Democratic Senator did vote to get the bill out of committee). The Senate vote set for Monday was pulled and the Tuesday vote was also postponed. The bill is not scheduled for a possible vote today (Wednesday April 9).
There is very recent precedent for pulling a constitutional amendment from the Alaska Senate floor; a proposed amendment to allow public funds to be used on private and religious schools was yanked last month.
A follow-up to last week’s posting, as anticipated changes to merit selection in Alaska and Florida moved this week.
Both HJR 33 and SJR 21 alter the state’s Judicial Council, which serves as both the merit selection commission and the judicial performance evaluation commission which issues its recommendations prior to retention elections. They both would expand the existing 7 member Council (3 lawyers picked by bar, 3 nonlawyers picked by governor and confirmed by legislature, 1 chief justice) to 10 members by giving the governor a 6:3 advantage. Where they differed was in the confirmation process: HJR 33 wanted all bar-picked lawyers to be subject to legislative confirmation (they aren’t currently); SJR 21 was silent on the issue.
A March 31 Senate Finance Committee hearing dealt with amendments to SJR 21 including one to require legislative confirmation of bar members. Proponents claimed the lack of legislative confirmation was an “oversight” by the Alaska Constitutional Convention, testimony was heard that it wasn’t an oversight but deliberately done to keep partisan politics out of the selection of the bar members. This caused one Senator to claim as “arrogance” the notion that Council members should not be “accountable” to the general public and made a parallel between the attorney members of the state’s Judicial Council and the barber/hairdresser members of the state’s Board of Barbers and Hairdressers, the members of which must be approved by the legislature.
The Senate Finance Committee amendment also put in a requirement for a 7/10 quorum of the Council; proponents claim it is to prohibit the chief justice from having a tie breaking vote against the public members of the committee against a judicial nominee. The House version allows for a quorum of 5.
The Senate Finance Committee vote on March 31 on SJR 21 as amended was a 5-0-1 vote. The 5 votes came from 4 Republicans plus 1 Democrat (Olson) who caucuses with the Republicans. One Republican (Bishop) voted no recommendation. Yesterday (April 3) the Senate Rules Committee procedurally advanced SJR 21 to the Senate Floor Calendar for April 4. As I noted last week, SJR 21 could go through on a near-party line vote in the Senate. The Republicans have 14 Senate seats, one shy of the two-thirds needed in that chamber, plus 2 Democrats who caucus with them one of whom voted for the bill to come out of committee.
On a 26-14 party line vote the Florida Senate advanced a constitutional amendment (SJR 1188) that allows for governors to make “prospective appointments” via the state’s merit selection system for appellate court vacancies that haven’t occurred yet. The issue is key since the only 3 Democrat-appointed justice of the state supreme court all have their terms expire on the same day in January 2019; if reelected and if SJR 1188 is approved by voters Republican Governor Rick Scott could fill all 3 seats even though he has to leave office that exact same day due to term limits.
There is no version of SJR 1188 in the House, however the Speaker of the House has said “I do believe it’s something that our body should consider.”
I’ve been tracking the big changes to adopt or modify merit selection systems in several states. Next week appears to have lined up three key votes/hearings and opens up the question of whether party line votes may decide their fates.
Both HJR 33 and SJR 21 alter the state’s Judicial Council, which serves as both the merit selection commission and the judicial performance evaluation commission which issues its recommendations prior to retention elections. They both would expand the existing 7 member Council (3 lawyers picked by bar, 3 nonlawyers picked by governor and confirmed by legislature, 1 chief justice) to 10 members by giving the governor a 6:3 advantage. Where they differ is in the confirmation process: HJR 33 wants all bar-picked lawyers to be subject to legislative confirmation (they aren’t currently); SJR 21 is silent on the issue however a March 31 hearing is expected to amend the bill to include that clause. HJR 33 will then get a hearing on April 2 before the House Finance Committee where it is the only item on the agenda.
Party line votes?- Because HJR 33 and SJR 21 are constitutional amendments they will need a two-thirds vote of each house of the legislature. Republicans have 26 House seats, one shy of the 27 needed, however 4 Democrats caucus with the Republicans. The Republicans have 14 Senate seats, one shy of the two-thirds needed in that chamber, plus 2 Democrats who caucus with them.
Adjournment- April 20 (projected)
SJR 1188 allows for governors to make “prospective appointments” via the state’s merit selection system for appellate court vacancies that haven’t occurred yet. The issue is key since the only 3 Democrat-appointed justice of the state supreme court all have their terms expire on the same day in January 2019; if reelected and if SJR 1188 is enacted Republican Governor Rick Scott could fill all 3 seats even though he has to leave office that exact same day due to term limits. This has prompted some to call the bill an effort at court packing. So far the bill passed the Senate Judiciary and Rules Committees and is on the Third Reading calendar.
Party line votes?- Because SJR 1188 is a constitutional amendment it will need three-fifths of the membership of each house of the legislature. Republicans have 74 House seats and could get a 75th when a special election occurs in April 8 with 72 votes required for passage. They also have 26 Senate seats, with 24 required for passage.
Adjournment- May 2
HB 1083 and SB 1082 would expand the state’s merit selection for interim vacancies at the trial court level to all vacancies and in the trial and appellate courts. The bills also provide for a judicial performance evaluation system. Both bills are carryovers from 2013 where the House version made it out the Elections Committee and into the Judiciary Committee. On the Senate side the bill has made it past the Judiciary Committee, a subcommittee of the Rules Committee, and most recently (March 21) the State and Local Government Committee.
Party line votes?- Because HB 1083 and SB 1082 are constitutional amendments they will need a majority of the members elected to each house of the legislature. The Minnesota Democratic–Farmer–Labor Party holds majorities in the House (73/134) and the Senate (39/67).
Adjournment- May 19 (projection)
The plan to give the state’s governor control over the Alaska Judicial Council and reduce the percentage of lawyers on the Council took an interesting turn yesterday. As previously noted, the Judicial Council serves as the state’s merit selection commission and judicial performance commission and SJR 21 would expand it from 7 (3 lawyers picked by state bar, 3 non-lawyers picked by governor subject to legislative confirmation , 1 chief justice) to 10 (3 lawyers picked by state bar, 6 non-lawyers picked by governor, 1 chief justice).
Both the Senate Judiciary (2/26) and Finance (3/10) committees had approved the plan, but the Senate Majority Leader sent the constitutional amendment back to Finance yesterday (3/24). According to news reports the sponsor wants SJR 21 to be closer to HJR 33 which not only expands the Council but requires legislative confirmation of all attorney and non-attorney members of the Council.
The effort to let the state’s governor name the majority of the Alaska Judicial Council, which serves as the state’s merit selection commission and judicial performance commission, barely made it out of the House Judiciary Committee on
Monday. Friday March 14 (the votes were recorded by the legislature on Monday March 17). HJR 33 was amended to not only change the composition of the Council but how members are chosen.
Presently Council members are chosen one of two ways. Attorney members are selected by the governing body of the organized state bar. Non-attorney members are selected by the governor and subject to confirmation by a majority of the members of the legislature in joint session. (The Chief Justice sits ex-officio as chair).
HJR 33, as amended by the House Judiciary Committee would provide ALL members of the expanded Council are subject to legislative confirmation. The Senate version SJR 21 has no such provision and retains the current provision that the attorney members need not be legislatively confirmed. The expanded Council would be made up of a majority of non-lawyers (6) picked by the governor. The attorney member seats would remain at the present 3, giving the governor control over a majority of the Council.
The legislature’s website indicates the amended version of HJR 33 barely made it out of the House Judiciary Committee, receiving only 2 Do Pass votes (both Republican), 1 Do Not Pass (Democrat), and 2 No Recommendation (both Republican).
This week turned into a very big week for the way states pick their judges and justices and next week could be just as big.
Alabama: the House and Senate Judiciary committees passed bills to create a rebuttable presumption of judicial recusal for campaign contributions. The House wants a tiered approach: recusal is presumed where there candidate received 10%, 15% or 25% (dependent on court level) of their total campaign contributions from a party, an attorney, or a law firm. The Senate Judiciary version has a flat 25% rate for all courts. The Senate bill (SB 440) is set for a possible vote on Session Day 25 (March 18) while the House version has yet to be formally transmitted to the Senate.
Alaska: plans to give the governor control over the Alaska Judicial Council, which serves as the state’s merit selection commission and judicial evaluation commission as well, were debated in the House and Senate. The state’s court system has come out officially against the House plan and some are referring to the plans as an effort at court packing/court stacking. Proponents argue that the bar is too liberal and the public not sufficiently represented. Opponents warn of a politicization of the judicial selection and evaluation process. The House is debating several options, including expanding the Council to give the governor a majority of seats (6 out of 10). The Senate plan (SJR 21) to expand from 6 to 10 seats was approved by the Senate Finance Committee March 12 and is pending the Senate Rules Committee. The House plan (HJR 33) had a hearing in committee and is set for hearings today (March 14) in the House Judiciary Committee and (perhaps anticipating Judiciary Committee passage) before the Finance Committee on March 20.
Florida: an effort to allow governors to make “prospective appointments” to the state’s appellate courts, decried by some as an effort to pack the Florida Supreme Court, made its way out of the Senate Judiciary Committee. SJR 1188 deals with the situation in the state’s merit selection system when an appellate judge’s term and that of a governor expire on the same day; can the outgoing governor make the appointment in the days prior to the expiration of the governor’s and the judge’s/justice’s term? The question is particularly critical this year as the only 3 justices on the Supreme Court appointed by a Democratic governor will all be forced out of office on the exact same day. Current Republican governor Rick Scott, should Scott win the 2014 Florida governor’s race, would get the picks. The bill could be heard in the Senate Rules Committee next week.
Hawaii: a constitutional amendment to require the state’s merit selection commission release all the names submitted to the governor for nomination took one more step closer to appearing on the 2014 ballot. HB 420 cleared the Senate Judiciary Committee unanimously; so far not a single member of the House or Senate has voted against it (two voted “yes with reservations” on the House floor). Proponents argue that the public has a right to know. Opponents argue that lawyers may find their practices devastated if it is known they are looking to move onto a judgeship. The full Senate could get the bill next week.
Minnesota: plans to adopt a merit selecti0n system with judicial performance evaluation cleared a key Senate subcommittee this week. SB 1082 as approved by the Senate Rules Committee’s Elections subcommittee would create a merit selection system for all judges in the state, judicial performance evaluations, and provide for retention elections rather than the current nonpartisan ones.
Oklahoma: a Senate plan to vacate all current judicial nomination commission members selected by Oklahoma State bar was approved 33-12 by the Senate on March 12. In addition to tossing the bar-appointed members SB 1988 removes the Oklahoma Bar’s power to name any future attorney members to judicial nominating commissions and provides instead the House and Senate leaders are to name the attorney members.
Tennessee: a plan to require all state judges face off in contested elections unless a quasi-federal system is approved in November 2014 failed in committee because no one wanted to second the bill. HB 1767 would have automatically set up contested elections for appellate courts if Amendment 2 (governor appoints, House and Senate confirms, retention elections) isn’t passed this November.
Utah: judges of the state’s Justice Courts are going to be subject to judicial performance evaluation under HB 325 as approved by the Senate this week. Currently all other judges in the state are subject to the provisions, including one that has the judicial performance evaluation commission release their report and findings about the judge in the days before an election (such as this one).
Efforts to change merit selection, usually in favor of giving more power to legislatures and governors and diminish the role played by attorneys and state bars, are now advancing in several states.
Last week Oklahoma’s Senate Rules Committee approved SB 1988 which would remove all current judicial nominating commission members selected by the Oklahoma bar. Those 6 members would be replaced by attorneys chosen by the Speaker of the House and the Speaker of the Senate.
On the same day Hawaii’s Finance Committee was approving HB 420, a constitutional amendment to require the release of all names submitted by the state’s judicial nominating commission to the governor for consideration for a judicial vacancy. Prior coverage of this can be found here.
Yesterday Alaska’s Senate Judiciary Committee approved an amended version of SJR 21 a constitutional amendment to alter that state’s Judicial Council, which serves as both the merit selection commission and judicial performance evolution commission. The current council is split between 3 attorneys chosen by the state’s attorneys, 3 members of the public chosen by the governor, and the chief justice. Although the official text is not yet available, news reports indicate that the plan would increase the council to 10 with non-attorney members picked by the governor in the majority (6/10). Prior coverage of this can be found here.
A plan to give the governor control over the Alaska Judicial Council, which serves as the state’s merit selection commission and judicial evaluation commission as well, is up for a third set of hearings today. It is the Council that submits names to the governor to select from for judicial vacancies as well as making formal recommendations for or against retaining judges in office when they come up for retention election.
Currently the Council is made of 3 lawyers, 3 non-lawyers pick by the governor, and the state’s chief justice who breaks ties. Under SJR 21 as introduced, the Council would have expanded to 16 members with the governor able to pick a majority of non-attorneys (10/16). SJR 21 as amended would expand the Council to 10 instead of 16 but still gives the governor control by picking 6 non-attorneys to a 10 member Council. That proposal is reportedly up for a third hearing today (February 24).
Proponents including current and former non-attorney members of the Council claim that the attorney members skew the pool of candidates submitted to the governor to the left, that the chief justice breaks ties in favor of the bar members and not the public, and that the evaluation system discriminates against conservatives.
Opponents note that just 15 times in the last 39 years did the chief justice vote to break a 3-3 tie with attorneys on one side and public members on the other and that only 10 of those times did the chief justice side with the lawyers.
Earlier this week a constitutional amendment was proposed in the Alaska Senate to change the composition of the state’s Judicial Council which serves as both the state’s nominating commission for its merit selection system and its judicial performance evaluation board. The plan, which would effectively give control of the Council to the Governor, has already been set for two committee hearings.
Presently the Council is made up of 7 members: the Chief Justice (chair), three attorney members appointed for six-year terms by the governing body of the organized state bar, and three non-attorney members appointed for six-year terms by the governor subject to confirmation by a majority of the members of the legislature in joint session.
Under SJR 21 the Council would expand to 16: the Chief Justice (chair), five attorney members appointed by the bar, and ten appointed by the governor subject to legislative confirmation.
SJR 21 also makes changes to the vote requirements. Currently “The judicial council shall act by concurrence of four or more members and according to rules which it adopts.” The new provisions would require “a majority of its members who are participating in a vote.”