Legislation on Veterans Courts: authorizing such courts vs. requiring their creation

Over the last several years courts and legislatures have shown an interest in creating “veterans courts”, specialized dockets or processes to handle criminal cases involving veterans and servicemembers. Last year both Tennessee (SB 711 / HB 854) and Utah (SB 214) enacted bills that authorized the creation of such courts in their respective states while Washington (SB 5107) passed a law encouraging their creation. In 2016, several bills are actively looking into this area.

Arizona: “shall establish”

In 2014 the legislature took an existing statute that authorized homeless courts and expanded it to include authorization for “veterans court and mental health court” divisions (HB 2457). This year there is a proposal to mandate the creation of such programs. HB 2554 of 2016 would provide such veterans courts must be established and that certain cases involving DUIs must be sent to such programs.

The presiding judge of the superior court in each county shall establish a veterans court to adjudicate cases filed in the superior court, and, if a veterans court is not established pursuant to section 22.601, to adjudicate cases filed in a justice court or a municipal court in the county….the presiding judge of the superior court shall establish the eligibility criteria for referral to the veterans court.  The criteria must include a mandatory referral requirement for any case that is filed against a veteran and that alleges only a violation of section 28.1383, subsection A, paragraph 1, 2 or 4.

HB 2554 is in the House Judiciary Committee

California: “shall develop”

As previously noted, three times the California legislature passed bills to require or force the state’s judiciary to create veterans courts and three times (by two different governors) the bills were vetoed, with notations that many courts already had such programs and that the decision to create new ones should be decided by the courts themselves. That hasn’t stopped a fourth round of legislation.

AB 863 would require every Superior Court individually, or together with a neighboring county, create veterans courts (“each superior court shall develop and implement a veterans court”).  The bill spells out who would be eligible and how the veterans court would operate.

AB 1672 would specifically require the creation of such courts in counties adjacent to San Luis Obispo that do not already have such programs as a regional, rather than a county, based veterans court program.

Both bills are pending in the Assembly Committee on Public Safety.

Iowa: “is established”

HB 68 and the identical SSB 3085 simply declare “A veterans treatment court is established in each judicial district…” The House version was carried over from 2015. The Senate version had a hearing before a subcommittee of the Senate Veterans Affairs committee yesterday (2/10).

Nebraska: requires pilot program

LB 915 establishes “the intent of the Legislature that the Supreme Court establish a three-year pilot project to create a veterans’ treatment court program for any county in which a city of the metropolitan class is located.” Media reports indicate Douglas County would be the pilot county. A hearing on the bill February 5 was held before the Senate’s Judiciary Committee.

LB 919, scheduled for that same hearing, would take the state’s existing statutes (24-1301 and 24-1302) authorizing “drug court programs and problem solving court programs” and amend the language to include “drug, veteran’s, mental health, driving under the influence, reentry, and other problem solving court programs”.

New Jersey: requires statewide or local pilot programs

AB 776 requires the creation of a pilot veterans court program in three specific counties (Atlantic, Cape May, and Cumberland). The bill is pending in the Assembly Military and Veterans’ Affairs Committee.

AB 2944 and the identical SB 1189 require the creation of a pilot veterans court program in two judicial districts (called in New Jersey vicinages) one of which must be Burlington County (Vicinage 3). The Assembly version has not been assigned to a committee; the Senate version is that chamber’s Judiciary Committee.

SB 307 creates a three-year statewide Veterans Treatment Court Pilot Program. The bill is in the Senate Military and Veterans’ Affairs Committee.

New York: required vs. authorized; transfer to other courts in judicial district

AB 2421 as amended and the identical SB 3914 as amended provide for an alternate treatment program for veterans accused of certain felonies. AB 2421 was approved by the Assembly Codes committee on June 15, 2015. It was sent back to the Codes committee at the start of the 2016 session. SB 3914 remains in the Senate Codes committee.

SB 3141 authorizes the state’s Chief Administrator of the Courts to create a veterans court in any criminal court in the state. The plan allows for criminal charges in lower courts within a county or in another county within a judicial district to be transferred to the veterans court. The plan was approved by the Senate Veterans, Homeland Security, and Military Affairs Committee on May 4, 2015. It was sent back to that committee at the start of the 2016 session.

SB 5677 authorizes the transfer of a criminal action to another criminal court in the same county or an adjoining county that has been designated a veterans treatment court by the chief administrator of the courts. The bill was passed by the full Senate on June 15, 2015 and the Assembly failed to take it up in the 2015 session. It was sent back to the Senate Codes committee at the start of the 2016 session.

SB 6595 also addresses the ability to transfer criminal cases from one court to another court that has a “problem solving court” defined as including a drug court, domestic violence court, youth court, mental health court, and veterans court. The bill is pending in the Senate Codes committee.

Pennsylvania: “shall establish…using available funds”

HB 887 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It also allows for two or more common pleas courts to operate such a court jointly. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the House Judiciary Committee since February 2015.

SB 517 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It does not appear to provide for joint operation of a court between two counties. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the Senate Judiciary Committee since February 2015.

Rhode Island: “[District Court] chief judge…shall create”; can’t be used to dismiss charges

HB 5850 and the identical SB 945 creates a 13th judge on the state’s District Court. It provides the chief judge of the District Court “shall create a veterans’ treatment calendar.” Moreover, it specifies that “Under no circumstances shall the defendant(s) be permitted to use this section  as  a  basis  for  a  dismissal  of  an  action,  as  this  section  is  enacted  for  the benefit  and  convenience of the  district court.” Both had committee hearings in 2015 and both were held over for the 2016 session.

Virginia: problem-solving courts in general vs. specific to veterans

HB 96 and the apparently identical SB 26 allow for the establishment of problem-solving courts in general, including veterans courts.

Problem-solving courts are specialized criminal court dockets within the existing structure of Virginia’s court system that enable the judiciary to manage its workload more efficiently. Under the leadership and regular interaction of presiding judges, and through voluntary offender participation, problem-solving courts shall address underlying offender needs and conditions that contribute to criminal behavior. Such needs and conditions shall include, but not be limited to, veteran’s status, mental illness, and societal reentry.

SB 317 copies much of the language from HB 976 and SB 26 but is limited to veterans courts only.

All three bills have been held over until the 2017 session by their respective committees.

West Virginia: “shall establish program” problem-solving courts in general

SB 48 provides the Supreme Court of Appeals shall establish a mental health, veterans and service members court program in the areas of the state with the highest need. Two such courts shall be established by July 1, 2016 with an additional two courts every year for a total of 10 programs by 2020.

Plan to expand AZ Supreme Court from 5 to 7 members clears House Judiciary Committee

For the second year in a row (discussed here) a plan to expand the Arizona Supreme Court from 5 to 7 members has cleared the House Judiciary Committee. HB 2357 cleared on a 4-1 vote yesterday. The lead sponsor again cited to the state’s population as the basis for the need to increase the size of the court and bring diversity to the court. The bill now goes to the House Rules Committee.

Arizona: House committee approves 5-1 plan to ban state courts from enforcing federal court decisions unless Congress or the state legislature allows it

An Arizona plan to prohibit state courts from enforcing federal court decisions cleared the House Federalism and States’ Rights committee earlier today.

HB 2201 prohibits “commandeering” of state and local “personnel or financial resources to enforce, administer or cooperate with any action of the United States government that constitutes commandeering.” It then defines “action of the United States government” to include “a ruling issued by a court of the United States.” State courts would and could be allowed to enforce federal court rulings if a) the legislature enacted and the governor signed a law to allow it and/or b) the federal court decision is “affirmed by a vote of the Congress of the United States and signed into law.”

HB 2201 now goes to the House Rules Committee.

Citing “state sovereignty”, Arizona House cmte to vote this week to prohibit state courts from enforcing/recognizing federal court decisions; MO & TN considering similar bans

Citing the state’s “sovereign authority”, members of the Arizona, Missouri, and Tennessee legislatures are attempting to prohibit state judges from enforcing U.S. Supreme Court and/or federal courts decision. An Arizona House committee is set to vote on two such proposals this week.

Arizona

Under HB 2024 as introduced U.S. Supreme Court decisions could only be deemed valid in Arizona if they were “affirmed” by Congress and signed into law.

1-274.  Sovereign authority; United States supreme court opinions

Pursuant to the sovereign authority of this state and article II, section 3, Constitution of Arizona, this state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer or cooperate with an opinion of the supreme court of the United States that is not in pursuance of the constitution of the United States and that has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.

Similar provisions would also ban enforcement or acknowledgment of presidential executive orders (1-272) and federal agency policies (1-273).

HB 2201 would operate in a similar manner. The statute defines any cooperation with a “ruling issued by a court of the United States” as “commandeering” state judges and allows it only if the ruling has been “affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States.”

HB 2024 and HB 2201 are set for a vote on February 10 in the House Federalism and States’ Rights committee.

Missouri

HJR 62 is constitutional amendment directed broadly to any “federal law.” The state legislature could send to the ballot, or the general public could via referendum, any “federal law” for a vote as to its constitutionality. If approved by voters, the “federal law” would be valid. If not, “the courts of this state shall be stripped of jurisdiction to enforce such a particular federal law…”

HJR 62 has been filed in the House Government Oversight and Accountability Committee.

Tennessee

HB 1828 and the identical SB 1790 both repeat many of the same provisions of the Arizona bills, but with one difference. Where the Arizona bills required Congress “affirm” U.S. Supreme Court and/or federal court decisions before state courts can enforce them, the Tennessee version requires the Tennessee General Assembly consent to the federal court decisions first.

This state and all political subdivisions of this state are prohibited from using any personnel or financial resources to enforce, administer, or cooperate with the implementation, regulation, or enforcement of any opinion of the United States supreme court unless such has been first expressly implemented by the general assembly by law as the public policy of the state.

HB 1828 is in the House State Government Committee. SB 1790 is the Senate Judiciary Committee.

Arizona: plan calls for public financing of Superior Court races in counties not using merit selection system, however bill would eliminate public financing for all other races

Arizona’s constitution provides that judges for the Superior Court in counties with a population over 250,000 are selected via the state’s merit/commission system and subject to retention elections. All other Superior Court judges must face off in contested nonpartisan elections. Now, one member of the state senate wants to make those nonpartisan races publicly funded but at the cost of ending public financing of all other races in the state.

In 1998 Arizona voters approved the Arizona Citizens Clean Election Act to provide for public financing of legislative and statewide executive-branch offices. SCR 1015 deletes any reference to statewide offices or legislative offices but inserts “judges of the superior court in a county having a population of less than two hundred fifty thousand persons” throughout the various statutes.

The bill is part of a package of legislation aimed at either ending or curtailing the state’s Arizona Citizens Clean Elections Commission which enforces the Citizens Clean Election Act.

If passed by the House and Senate, SCR 1015 would not go to the governor but instead to voters to approve or reject as a referendum.

SCR 1015 is pending in the Senate Government Committee.

Arizona: For third time in 5 years, legislature attempts to expand Supreme Court from 5 to 7

The ongoing effort to expand the Arizona Supreme Court, first started in earnest in 2011, has been reintroduced. HB 2537 of 2016 would again attempt to increase the court from 5 to 7 members.

This effort is in stark contrast with the 2015 attempt (HB 2076, discussed here) which was never formally introduced as a bill and instead added at the last minute as an amendment to another bill (a “striker” that eliminated the other bill’s entire text). The 2015 effort came out of committee but died on the House floor.

The third recent attempt, SB 1481 of 2011 discussed here, was brought before the Senate Judiciary Committee with no notice to the Supreme Court itself. The author later explained his bill: “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.” The bill was ultimately rejected by the committee, but on a 3-4 vote.

HB 2537 has been assigned to the House Judiciary Committee.

 

OK: state supreme court has struck down several laws as unconstitutional 7-2, so legislator wants to force court to be 9-0 or 8-1 in the future

Recently the Oklahoma Supreme Court has struck down several laws passed by the state’s legislature on 7-2 votes. Of particular note was the July 2015 decision by the court that resulted in the removal of a Ten Commandments display from the State Capitol Grounds as well as a 2013 ruling that struck down the legislature’s tort reform package for violating the state constitution’s “single subject” rule.

The result: a 2016 proposal to require at least an 8-1 or 9-0 vote to overturn state laws.

Under HJR 1063 as prefiled for the 2016 session

in any case in which the constitutionality of legislation enacted by the Legislature is at issue, the vote of the Supreme Court must be unanimous or there must not be more than one dissenting vote for the legislation to be declared unconstitutional. If the vote of the Supreme Court is not unanimous and there is more than one dissenting vote , the legislation shall not be held to be unconstitutional.

Interestingly, the bill does not apply to the state’s other court of last resort (Court of Criminal Appeals).

Only Nebraska (5/7) and North Dakota (4/7) require specific vote totals to find a law unconstitutional by the state’s court of last resort. A few states have quorum-minimums that require a majority of all justices of the court (as opposed to just a majority of the panel of justices hearing the case) are needed to strike down a law.

Arizona

The state’s constitution provides the Supreme Court may sit together (“in banc”) or in panels of 3 judges, however “the court shall not declare any law unconstitutional except when sitting in banc.” (Art. VI, Sec. 2)

Nebraska

The state’s constitution provides “No legislative act shall be held unconstitutional except by the concurrence of five [out of seven] judges.” (Art. V, Sec. 2)

This came up most recently in 2015 regarding a law that allowed “major oil pipeline” carriers to bypass the  regulatory procedures of the Public Service Commission.  (Thompson v. Heineman, 289 Neb. 798; 857 N.W.2d 731). Four judges ruled 1) appellees had standing and 2) the statute in question was unconstitutional. Three dissenting judges found that the five-judge requirement applied to both the questions of standing/jurisdiction and the merits and because there were not 5 votes on standing/jurisdiction the case should have been dismissed.

North Dakota

The state’s constitution provides “the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the [five] members of the court so decide.” (Art. VI, Sec. 4)

This came up most recently in a 2014 case regarding a 2011 statute that addressed medication-induced abortions. (MKB Mgmt. Corp. v. Burdick, 2014 ND 197; 855 N.W.2d 31) The court fractured in a unique pattern

  • Two justices (one regular justice and a trial judge filling in due to a vacancy on the court) found the statute in question violated the ND constitution. Two justices found the statute constitutional under the ND constitution. One justice found the question did not need to be decided under the ND constitution. (2-2-1)
  • Three justices (two regular justices plus the fill-in trial judge) found the statute also violated the Federal constitution. One justice found the statute constitutional under the Federal constitution. One justice found the question was not properly before the court.  (3-1-1)

The court ultimately found “The effect of the separate opinions in this case is that [the statute] is not declared unconstitutional by a sufficient majority…”

Utah

The state’s constitution provides “The Supreme Court by rule may sit and render final judgment either en banc or in divisions. The court shall not declare any law unconstitutional under this constitution or the Constitution of the United States, except on the concurrence of a majority of all [five] justices of the Supreme Court. (Art. VIII, Sec. 2)

Virginia

The state’s constitution is similar to Utah’s: “The Court may sit and render final judgment en banc or in divisions as may be prescribed by law…[N]o law shall be declared unconstitutional under either this Constitution or the Constitution of the United States except on the concurrence of at least a majority of all justices of the Supreme Court.” (Art. VI, Sec. 2)

 

Maryland hearing on usage and authorization for court facility dogs: bills in 6 other states pending/enacted recently

Over the last several years courts have grappled with when, and how, to allow the use of court facility dogs to assist witnesses and victims in giving testimony. A hearing set for today in Maryland’s Senate will examine the subject, while 6 other states have in the 2015/2016 legislative cycle either debated or in the case of Arkansas enacted statutes regarding facility dog usage.

Arizona: criminal cases, victim under 18, jury instruction required

HB 2375 of 2016 provides a court shall afford a victim who is under eighteen years of age the opportunity to have a facility dog accompany the victim while testifying in court. The court would be obligated to inform the jury “the facility dog is a trained animal, is not a pet owned by the victim witness and that the presence of the facility dog may not be interpreted as reflecting on the truthfulness of the testimony that is offered.”

HB 2375 cleared the House Judiciary Committee on January 20 and the House Rules Committee on January 25.

Arkansas: criminal cases, witness under 18, “appropriate jury instructions” required

HB 1855 of 2015 provided, subject to the Arkansas Rules of Civil Procedure, Arkansas Rules of Evidence, or other rule of the Supreme Court, if requested by either party in a criminal trial or hearing and if a certified facility dog is available within the jurisdiction of the judicial district in which the criminal case is being adjudicated, a child witness of the party shall be afforded the opportunity to have a certified facility dog accompany him or her while testifying in court. “In a criminal trial involving a jury in which the certified facility dog is utilized, the court shall present appropriate jury instructions that are designed to prevent prejudice for or against any party.”

HB 1855 was enacted as Act 957 of the 2015 session.

Connecticut: criminal cases, violent crime victim, nothing on jury instructions

HB 5364 of 2015 provided that that in any criminal prosecution involving an alleged violent crime and testimony from a victim of such crime, such victim shall be permitted to be accompanied by a therapy dog while testifying in the criminal prosecution, provided such dog is not visible to the jury.

HB 5364 was filed in 2015 but never advanced out of committee.

Hawaii: any “judicial proceeding”, “vulnerable witness”, jury instructions “to the extent necessary”

HB 1668 of 2016 and the identical SB 2112 provide a court may permit the use of a facility dog involving the testimony of a vulnerable witness if the court determines that there is a compelling necessity for the use of a facility dog to facilitate the testimony of the vulnerable witness. “To the extent necessary, the court may impose restrictions, or instructions to the jury, regarding the presence of the facility dog during the proceedings.”

Both bills are pending in their respective Judiciary Committees.

Maryland: criminal proceedings, child witness, nothing on jury instructions

SB 55 of 2016 provides a court may allow a facility dog or therapy dog to accompany a child witness. There is no mention of jury instructions.

SB 55 is pending before the Senate Judicial Proceedings Committee and it set for a hearing today (January 26).

New York: criminal proceedings, “vulnerable witness”, lengthy jury instruction

AB 389 of 2015 and the identical SB 231 provide that a court shall permit the use of a facility dog when, in a criminal proceeding involving the testimony of a vulnerable witness, the court determines by a preponderance of the evidence that it is likely that such witness will be unable to effectively communicate if required to testify without the presence of such facility dog and that the presence of such facility dog will facilitate such testimony. Both bills include a lengthy jury instruction statement

A jury instruction shall be given both before and after the appearance of the facility dog with the witness and at the conclusion of the trial. Such instruction shall include that the dog is a highly trained professional who is properly referred to as a “courthouse facility dog.” Included in this shall be the emphasis that the dog is not a pet, is not owned by the witness and is equally available to both the prosecution and defense under certain circumstances. Such instruction shall include that the presence of the facility dog is in no way to be interpreted as reflecting on the truthfulness of the testimony offered. Such instruction shall also include that the presence of the dog is a reasonable accommodation to the witness in allowing them to fulfill the obligation of testifying in a court of law.

Neither bill advanced out of committee in the 2015 session and were carried over into the 2016 session.

Tennessee: any civil or criminal proceeding, witness fitting criteria, nothing on jury instructions

HB 1987 of 2016 and the identical SB 1618 provide a court may allow the use of a courthouse facility dog for any civil or criminal proceeding for a witness. The court, in deciding on whether to permit the usage, may consider

  1. The age of the witness
  2. The nature of the witness’s relationship to the events giving rise to the proceeding
  3. Whether the witness suffers from any disability
  4. The rights of the parties to the proceeding
  5. Any other factors that the court deems relevant in facilitating the effective communication of information by the witness and protecting the rights of the parties to the proceeding.

HB 1987 has been filed but not yet assigned to a committee. SB 1618 is in the Senate Judiciary Committee.

 

Arizona: bill requires courts post case disposition data within 30 days

With the increase in access to court information state legislatures have begun to look at how much data is available and how quickly it is being updated. 2016 now sees the Arizona House debating the subject in the form of HB 2004.

Under the terms of the bill those courts that have a “publicly accessible and searchable case record database” would be required to post “a clear and concise disposition” for each case within 30 days including

  • whether the case was dismissed
  • whether the person was found guilty or responsible or not guilty or not responsible or pled no contest
  • whether any other final judgment was rendered

HB 2004 has been assigned to the House Judiciary Committee.

 

Across country, state legislatures consider altering number of nominees judicial nominating commissions must release

One particular aspect of judicial selection legislatures have had a keen interest has been the number of names that advance through judicial nominating commissions (JNCs). 2016 looks to be no exception; in Missouri SJR 30 prefiled for the new year would eliminate the restriction that the state’s JNCs send only three names to the governor. Moreover, an examination of legislation over the last two decades shows a marked uptick in interest outside of Missouri over the last several years.

Alaska

The state’s constitution provides the state’s JNC send “two or more persons” to the governor when a vacancy occurs in either the Supreme or Superior Court; statutes require “two or more persons” for Court of Appeals (Alaska Stat. § 22.07.070) and District Court (§ 22.15.170) vacancies. No recent attempt has been made to alter these provisions.

Arizona

The state’s constitution provides that if the vacancy is on the Supreme Court, Court of Appeals, or Superior Court (in counties that use a commission system) the governor is to receive the names of “not less than three persons.” Several efforts have been made to amend this provision. SCR 1038 of 2005 would have increased this to 6 names for appellate vacancies and 7 for Superior Courts. In 2011 proposals were submitted (SCR 1040, SCR 1046, and SCR 1049) that would have increased the list to 6 names for appellate vacancies and 7 for Superior Courts.

The proposal that eventually made it on the ballot was SCR 1001 of 2011: 8 names for both trial and appellate vacancies. SCR 1001 also included several other changes to give governors more power over the JNCs. When it appeared on the 2012 ballot as Proposition 115 it received only a 27% yes vote. Undaunted by the loss, the legislature in 2013 passed HB 2600. Rather than amend the constitution, the legislature tried to force by statute the JNCs to provide governors “the names of at least five persons” for trial and appellate vacancies. In September 2013 the state’s supreme court held that law unconstitutional.

Colorado

The state’s constitution provides the JNCs in the state are to provide “a list of three nominees for the supreme court and any intermediate appellate court, and… a list of two or three nominees for all other courts of record…” No recent attempt has been made to alter these provisions.

Connecticut

Connecticut adopted a commission based system in 1986: governors nominate from a list provided by the state’s judicial selection commission but the constitution is silent as to the number. State law (Conn. Gen. Stat. § 51-44a) provides that the commission is to provide the governor a list of all “qualified candidates”. No recent attempt has been made to alter these provisions.

Florida

The state adopted a merit/commission system in 1972 for the state’s trial and appellate courts. The original provision required the JNCs to submit a list of “not fewer than three persons”. For the appellate courts, this was amended in 1976 to precisely 3 (“one of three persons nominated”). For trial courts, commission appointment was eliminated, but was made optional under a 1998 amendment that allowed voters to opt in for each county in the 2000 election. Under the 1998 trial court opt-in provision “not fewer than three” names were to go to the governor. No county opted into this system for its trial courts.

For the appellate courts, several efforts were made in the 1990s to change the “not fewer than three persons” language. The first was to change it to precisely “three persons” (SJR 18 of 1992). Eventually the legislature settled on “Not fewer than three persons nor more than six persons” (HJR 1415 and SJR 978 of 1996). The expansion to 3-6 names was approved by voters as Amendment 3 in November 1996.

By 2000 another round of efforts were made to expand the list, this time by dropping any numerical requirements and providing the JNCs were to send a list of all applicants (HB 923 of 2000) or a list of all persons eligible to fill the vacancy (HB 627, HB 827, SB 1794, and SB 1860 of 2001). None of the proposals advanced and the issue has appeared to have remained dormant since.

Hawaii

The state adopted a commission based appointment system in the 1978. Originally the commission was required to submit a “list of not less than six nominees” for each vacancy in the state’s appellate and trial courts. A 1994 amendment (SB 2294) modified this to “a list of not less than four, and not more than six” for the Supreme, Intermediate Appellate, and Circuit Courts; District Courts remained at “not less than six nominees”.

There the matter lay for over a decade until a 2005 effort (SB 1166) would have provided the lists for all courts were to be made up of “not less than three.” In 2007 a measure to change the threshold down to 3-5 names for all courts was introduced. SB 948 was approved by the full Senate and advanced through the House Judiciary Committee before ultimately dying when the legislature adjourned.

Indiana

The state’s constitution provides the judicial nominating commission must submit “a list of three nominees” to the governor for vacancies on the Supreme Court or Court of Appeals. No recent attempt has been made to alter these provisions.

Iowa

The state’s constitution provides that the judicial nominating commission is to provide “three nominees” for Supreme Court vacancies and “two nominees” for District Courts; a statute (Iowa Code § 46.14A) with respect to the Court of Appeals repeats the “three nominees” language.

With respect to the constitutional provision, there were several efforts (SJR 2006 of 2010; SJR 6 and SJR 7 of 2011) to allow the governor to reject the list of three names provided for Supreme Court vacancies and requiring the commission submit a list of three new names. None advanced.

With respect to the Court of Appeals, the statute creating the court in 1976 required the nominating commission provide the governor a list of 3 names for vacancies on that court (former § 46.15). That number was expanded to five when the state’s judiciary was reorganized in 1983. The number was reverted back to 3 when portions of section Iowa Code § 46.15 were recodified as § 46.14A (SF 381 of 2007).

Kansas

The state’s constitution specifies that with respect to the Supreme Court the Supreme Court Nominating Commission is to provide the governor a list of “three persons.” The state’s Court of Appeals had until 2013 also be selected in like fashion via a statutory system (Kan. Stat. Ann. § 20-3005) that required a list of “three nominees”. In addition District Courts in those judicial districts that have opted into the commission-select system have their vacancies filled from a list of “not less than two nor more than three persons for each office which is vacant” (§ 20-2909).

With respect to the Supreme Court, there was an effort to allow governors to reject the list of 3 names and be provided a second list of 3 new names for a total of 6 (HCR 5005 of 2009) or to simply have the commission submit 6 names on the first list (SCR 1619 of 2007 & SCR 1612 of 2009). Another (HCR 5027 of 2013) would have provided the commission submit all qualified persons to the governor.

With respect to the Court of Appeals no effort was made to expand the list the commission was required to provide, the commission system was simply eliminated in 2013 and the governor permitted to appoint any qualified person subject to senate confirmation.

With respect to the District Courts, no recent effort appears to have been made to modify the current practice of 2-3 names.

Missouri

Since adoption of its commission-based plan the Missouri constitution has specified that commissions are to submit “three persons” to fill vacancies in the Supreme Court, Court of Appeals, and specified Circuit Courts. Although a 1976 constitutional revision moved the location of the language (from Art. V, Sec. 29(a) to the new Art. V, Sec 25(a)) the 3-persons provision was unchanged.

Much of the focus in this area has been for a 4/8 or 5/10 plan. Under the proposals the initial list submitted to the governor would be made up of 4 or 5 names (vs. the current 3). The governor would be allowed to reject the list and ask for a new one, for a total of 8 or 10 nominees.

The 4/8 plan appeared in HJR 19 of 2009 (as introduced) and SJR 17 of 2011.

The 5/10 provision appeared in HJR 49 of 2008, HJR 10 of 2009 (as amended), SJR 9 of 2009, HJR 58 of 2010, HJR 18 of 2011, and HJR 44 of 2012. A plan that would allow for only a single list of 5 names was considered as HJR 52 of 2008.

The latest iteration prefiled for the 2016 session (SJR 30) would simply eliminate the 3-name provision.

Nebraska

The state’s constitution provides vacancies in the state’s Supreme and District Courts must be filed from a list of “of at least two nominees” presented to the governor. Various statutes extend this practice to the Court of Appeals (Neb. Rev. Stat. § 24-1101), County Courts (§ 24-820) and Juvenile Courts (§ 43-2,114) and incorporate the constitutional provision by reference. No recent attempt has been made to alter these provisions.

New Mexico

New Mexico uses a unique two-step process for judicial selection. When a vacancy occurs one of three JNCs (appellate judges, district court judges, or metropolitan court judges commissions) meets and submits to the governor a list of all “persons qualified for judicial office and recommended for appointment”. The governor can then ask for a second list of names. Whoever is picked, however, must then face off in partisan elections at the next general election.

While the constitution does not provide for a minimum or maximum number of names, one bill did seek to put such a provision in place after a single name was submitted in 2006 to the state’s governor to fill a District Court vacancy and no additional names sent when he asked for a second list. SB 1075 of 2007 would have required JNCs provide at least two names per vacancy. The bill never proceeded out of committee.

New York

New York’s constitution since 1977 requires vacancies for the state’s top court (called the Court of Appeals) be filled via a commission on judicial nomination, but gives the legislature power to set the organization and procedure of the commission. State law on this subject (Judiciary Law § 63) specifies the list to fill associate judgeship must contain “at least three persons and not more than seven persons.” Interestingly, the chief judgeship must be made up of at least 7 persons (“In recognition of the unique responsibilities of the chief judge of the court of appeals for policies of judicial administration, for a vacancy in the office of chief judge the commission shall recommend to the governor seven persons.”)

In 1993 an effort (AB 916) was made to raise the 7-name limit for chief judge to 11 names and automatically put all serving associate judges on that list. The bill was reintroduced for several sessions thereafter (AB 3699 of 1995 & AB 2148 of 1997).

In 2009 an attempt was made to eliminate the numerical restrictions and require the commission send all qualified names to the governor. AB 3866 of that year failed to advance but was reintroduced in the 2011 session as AB 309.

Also in 2009 an attempt was made to increase the limits from 3-7 to 5-9 (associate judge) and from 7 to 9 (chief judge). It too failed to advance.

Oklahoma

The state’s constitution provides that vacancies in the state’s two top courts (Supreme Court and Court of Criminal Appeals) are to be filled from a list of “three (3) nominees” submitted to the governor. A statute (Okla. Stat. tit. 20, § 30.17) extends this practice to the state’s intermediate appellate court (Court of Civil Appeals). No recent attempt has been made to alter these provisions.

Rhode Island

In 1994 the state’s constitution was amended to provide vacancies in the Supreme Court were to be filled from a list provided by a judicial nominating commission to be established by the legislature and confirmed by the House and Senate. Lower court vacancies (Superior, Family, and District) were also to be filled by commission-based appointment but required only Senate confirmation. A statute (R.I. Gen. Laws 8-16.1-6) provides that the list provided by the commission is to be made up of between 3-5 names.

From 2008 to 2015 governors were not limited to just those 3-5 names. Under laws enacted annually from 2008 to 2014 (HB 7829 of 2008, HB 5567 of 2009, SB 2645 of 2010, SB 686 of 2011, HB 8043 of 2012, SB 471 of 2013, and HB 8006 of 2014) anyone vetted and approved by the JNC for a judgeship would be eligible for any other judgeship of the same court for 5 years. The program lapsed on July 1, 2015 when HB 6307 failed to be enacted to give the program yet another 1-year extension.

South Carolina

South Carolina is one of only two states (Virginia is the other) in which the legislature elects judges with no involvement by the governor. In 1997 the state’s constitution was amended to require the creation of a “Judicial Merit Selection Commission” to recommend nominees to the legislature for the Supreme Court, Court of Appeals, Circuit Court, and Family Court. The commission’s membership and processes were left up to the legislature to set. The law enacted to implement the constitutional provision (S.C. Code Ann. § 2-19-80) requires the release by the commission of “the three candidates whom it considers best qualified.”

There have been over two dozen pieces of legislation to alter the number of names released by the commission. Almost all focused on the release of all qualified names, with “qualified” meaning either a) that the individual meets the minimum requirements for the position (age, attorney, etc.) or b) the person was “qualified” to serve in the opinion of the commission.

The practice for the better part of a decade was for the House to pass the “all qualified names” provision and for the Senate to either reject it or amend it to “no more than 3 qualified names” but with a provision that more than 3 names could be sent if two-thirds of the commission approved. This House/Senate split occurred in the 2003/2004 (HB 4734), 2005/2006 (HB 2079), and 2007/2008 (HB 3463 & SB 40) sessions. The Senate passed its own standalone version (3 names, more if two-thirds of commission approved) in 2007 (SB 40) that the House failed to act on.

The matter lay dormant until the 2015/2016 session when again the House passed an “all qualified” names bill (HB 3979); the Senate has yet to act on the legislation.

South Dakota

The state’s constitution was amended in 1980 to provide that vacancies in the Supreme Court are to be filled from a list of “two or more persons” nominated by the judicial qualifications commission. No recent attempt has been made to alter these provisions.

Utah

The state’s constitution was amended in 1985 to provide for a commission-system with senate confirmation for all courts of record (Supreme, Court of Appeals, District and Juvenile). The list given to the governor for these courts must consist “of at least three nominees.” A statutory change in 2008 (SB 72) brought the state’s other courts (Justice) into a commission system. The Justice Court Commission was required to submit “at least two names to the appointing authority.”

For the courts of record, a 1995 statute (former Utah Code § 20A-12-105, recodified in 2008 as § 78A-10-104) provided the appellate commission was to provide the governor at least 5 names for each vacancy while trial court commissions were to provide at least 3 names. In 2010 this was further amended (SB 289) to provide that the appellate court commission is to submit 7 names to the governor, while the trial court commissions are to send 5. SB 108 of the same year had similar provisions. A 1998 effort (SJR 3) would have allowed the governor to reject a list of names from the commission and request a new list. There was no limit to the number of rejections.

For the Justice Courts, a 2015 proposal (SB 141) increased the number of names from “at least two” to “at least three” for the local appointing authority to choose from. The bill was signed into law in March of this year.

Vermont

The state’s constitution provides the governor is to nominate Supreme Court and other judges (other than Probate judges) from a list provided by a judicial nominating body to be created by the legislature. A state statute (4 VSA 602) provided that the Judicial Nominating Board is to submit all “candidates” to the governor for consideration; this was amended in 2009 (HB 470) to “qualified candidates”. Other than the 2009 amendment, no recent attempt has been made to alter these provisions.

Wyoming

The state’s constitution as amended in 1972 provides for a judicial nominating commission for the supreme court, district courts and any other courts the legislature decides. The commission is to give the governor “a list of three nominees” for vacancies. No recent attempt has been made to alter these provisions.