Review of 2015 efforts to change, alter, or end merit selection/commission based judicial appointment systems

The last several years have seen numerous efforts to modify or simply abolish merit selection/commission-based judicial appointive systems and 2015 was no exception. In these systems , a commission provides a list of names to an executive, or in the case of South Carolina the legislature, from which the appointing authority must select (as opposed to some states where the commission’s list is a recommendation only).

Much of the effort in 2015 focused on either a) reducing the percentage of lawyer-appointed members of the nomination commissions and/or b) requiring judges appointed under such systems receive super-majority support in subsequent yes/no retention elections. While major changes failed to pass in 2015, they do indicate where legislative activity will likely be focused in this area in 2016.

Alaska

In a repeat of efforts first started in 2014, legislators pressed to give more control to the governor and legislature over the state’s Judicial Council which serves as the judicial nominating commission for the state. Under SJR 3 the Council would have been expanded from 7 members to 10 by the addition of 3 new non-attorney members appointed by the governor. Moreover, all Council members would have been required to be confirmed by the legislature (currently the attorney-elected councilmembers and chief justice are not required to be confirmed into their council positions). Facing heavy opposition SJR 3 was approved by the Senate State Affairs Committee on March 25 but proceeded no further.

Arizona

Two constitutional amendments to modify the commission system (which applies to appellate judges and general jurisdiction judges in the state’s largest counties) were filed this year. HCR 2002 would have required judges facing retention elections receive at least a 60% “yes” vote. HCR 2006 would have allowed the state’s legislature to remove from office on a 2/3rds vote judges appointed under such a system without the need to prove an impeachable offense. Both bills died in committee.

Colorado

No changes offered.

Connecticut

No changes offered.

Florida

For the first session in nearly a decade there were no bills introduced to change the state’s judicial selection system, this after a loss in 2014 of a plan to allow governors to “prospectively appoint” to fill judicial vacancies that had not occurred yet.

Hawaii

SB 615 would have modified the Senate-confirmation portion of the state’s commission-based judicial selection system. Under the state’s constitution the governor (or chief justice for some lower courts) has 30 days to select from the list of names provided by the judicial selection commission. The Senate then has 30 days to confirm the appointee otherwise the person is confirmed by default. In 2012 several judicial appointments were made at or near the deadline and in one case without giving written notification to the Senate until a week later.

SB 615 would have specified that the Senate was to receive written notice concurrently with the appointment and that the 30 day clock for the Senate to confirm started only “on the senate’s receipt of the written notice”.

SB 615 was approved by the full Senate on March 10 but the House Judiciary Committee made several amendments to clarify some of the technical language regarding notification. The House amended version ultimately died in the House Finance Committee at session’s end.

Indiana

Indiana saw three separate efforts to change judicial selection in 2013. SJR 8 and SJR 9 sought to end commission-based selection for judges, allowing the governor to appoint anyone to the Supreme Court and Court of Appeals subject to Senate confirmation. Both constitutional amendments would have also repealed any judicial canons that prohibited a judge from speaking in their campaigns or making a donation of money, services, or property to a political party or a candidate for office, including a candidate for a judicial office. Finally, judges appointed under this system would have been required to receive a supermajority of “yes” votes to be retained in office: 67% under SJR 8 and 60% under SJR 9.

SJR 15 took a different tack on the issue of judicial selection. The constitutional amendment would have reduced the number of attorney-designated seats on the state’s merit selection commission and required Senate confirmation. In a unique proposal not found in any other state, the bill would have ended elections for subsequent terms, instead requiring a judge receive a 60% yes vote not of the general public but of the House of Representatives.

Neither SJR 8, SJR 9, nor SJR 15 proceeded out of committee.

Iowa

No changes offered.

Kansas

Having abolished the merit selection/commission-based judicial appointive system for the Court of Appeals in 2013 by statute, the state’s legislature urged on by the state’s governor debated numerous statutory and constitutional changes to the way the state’s Supreme Court is chosen, most focused on ending the state’s merit selection/commission based system.

  • HCR 5004: Direct partisan election of all appellate judges. Approved by House Judiciary Committee 2/17/2015.
  • HCR 5005: Allow Governor to appoint to Supreme Court or Court of Appeals subject to Senate confirmation. As is currently the case for the Court of Appeals by statute there would be a default-confirmation provision; if the Senate fails to vote on a candidate within a certain number of days (depending on if in session or out of session) the candidate is automatically confirmed. Judges would remain subject to yes/no retention elections. Approved by House Judiciary Committee 2/17/2015.
  • HCR 5006: Same as 5005, but judges would serve for life and not be subject to retention or other election.
  • HCR 5009: Require judges receive 67% “yes” vote in retention elections.
  • HCR 5012: Allow Governor to appoint to Supreme Court or Court of Appeals, but only from a list provided by the House of Representatives. The person appointed would be subject to Senate confirmation.
  • HCR 5013: Changes membership of Supreme Court nominating commission: 4 chosen by bar members, 5 chosen by governor, 6 chosen by legislative leaders.
  • HCR 5015: Keeps nominating commission, but gives governor power to name 5 out 9 members. Requires any name submitted to governor be approved by 2/3rds of commission.

In addition to the above SB 197 would have made statutory changes with respect to these commissions, placing them under the state’s Open Meetings Act. The records of attorneys who voted in elections to place attorney-members on the commissions would be subject to the state’s Open Records Act as well.

Missouri

No changes offered.

Nebraska

No changes offered.

Oklahoma

Angry at several recent decisions of the state’s Supreme Court which had resulted an impeachment effort in 2014, both the House and Senate debated either changing or ending the commission-system currently in place.

Two constitutional amendments were offered: HJR 1006 would have targeted just the Supreme Court (and not the other appellate courts), effectively replicating the system in place in Michigan and Ohio. There political parties nominate or hold primaries for judicial candidates who then appear without party labels on the November ballot. HJR 1006 would also have provided that the Governor was to name the Chief Justice from among the justices of the Supreme Court and remove the Chief Justice from that office at will. SJR 32 would have allowed the governor to appoint anyone to the appellate courts subject to Senate confirmation. The existing judicial nominating commission would remain, but as an advisory body to review the appointee prior to Senate confirmation as either “qualified” or “not qualified”. Retention elections would have remained in place for subsequent terms. Neither HJR 1006 nor SJR 32 proceeded out of committee.

Several statutory efforts were undertaken to change the composition of the judicial nominating commission. HB 2214 and SB 795 would have vacated all 6 currently serving attorney-selected members of the commission. The House bill would have refilled the positions with 6 attorneys, 2 each for the Lt. Governor, the Attorney General, and the state bar. The Senate version provided 3 selections each for the Speaker of the House and President Pro Tempore of the Senate. Neither proceeded out of committee.

Rhode Island

In a repeat of a practice that has been renewed annually for almost a decade, HB 6307 would have allowed governors to fill vacancies in judicial office not only based on the contemporary list provided by the judicial nominating commission but from any list submitted by the commission in the previous 5 years. The existing statutory authorization for the 5-year look back provision lapsed as of July 31, 2015. While the House passed HB 6307 prior to the deadline (June 18), the bill remains locked in the Senate Judiciary Committee.

South Carolina

South Carolina’s legislature electes the judges of the state’s higher courts and has for the last several years used a merit selection commission to obtain a list of names for consideration. Presently the commission submit a list of the three best qualified candidates, however HB 3979 and SB 247 would have required the commission release the names of all qualified candidates. That plan was approved by the House on April 29 and remains pending in the Senate Judiciary Committee into the 2016 session. Other bills focused on giving the governor a role in the selection process.

  • HB 3123: Ends legislative selection and use of nominating commission. Provides for governor to appoint subject to Senate confirmation.
  • SB 111: Ends legislative selection and use of nominating commission. Provides for governor to appoint subject to Senate confirmation.
  • SB 180: Commission sends governor list of names, governor picks 3 names, commission reviews 3 names, legislature then picks from 3.
  • SB 242: Commission members to be selected by governor, not legislature.

South Dakota

No changes offered.

Utah

In 2008 Utah’s Justice Courts were brought into the state commission-based judicial selection system. At that time the statute required the nominating commission submit at least two names to the local appointing authority to fill a judicial vacancy. SB 141 included among its various amendments to a variety of statutes a provision that the commission must now submit at least three names. It was signed into law March 23.

Wyoming

No changes offered.

 

Same week Colorado legislature votes to link executive branch officials’ salaries to that of judges Oklahoma votes to repeal similar system that stymied judicial salary increases

Colorado and Oklahoma’s legislatures have now taken entirely different directions in how to handle salaries for executive branch elected officials with Oklahoma moving to repeal its system of linking such salaries to judges and Colorado’s legislature voting in essentially the exact same plan.

The Colorado bill (SB 288) raced through the legislature in a single week when according to media reports dissenting House members were removed from the Appropriations committee. Under the plan the Colorado governor’s salary would equal 66% of that of the annual salary paid to the state’s Chief Justice. Other officials would have similar ties

  • Governor = 66% of annual salary of Chief Justice of the Supreme Court
  • Lt. Governor = 58% of annual salary of a County Court Judge in a Class B County
  • Attorney General = 60% of annual salary Chief Judge of the Court of Appeals
  • Secretary of State = 58% of annual salary of a County Court Judge in a Class B County
  • State Treasurer = 58% of annual salary of a County Court Judge in a Class B County

Moreover, the Colorado plan goes even farther than Oklahoma’s and links the legislature’s salaries to that of judges as well

  • Member of General Assembly = 25% of annual salary of a County Court Judge in a Class B County

SB 288 was introduced April 30, cleared the Senate on May 5 and the House on May 6.

The exact day Colorado’s SB 288 was introduced, Oklahoma’s Senate was giving final approval to a plan to repeal a similar linkage system. Oklahoma SB 549 as amended by the House was approved by the full Senate on a 36-0 vote on April 30. If signed by the governor it would end a decade’s long practice of linking executive salaries to that of judicial officials

  • Governor = salary of Chief Justice of the Oklahoma Supreme Court
  • Lt. Governor = salary of associate District Court Judge of county with population between 10,000 and 30,000
  • Attorney General = salary of Presiding Judge of the Court of Civil Appeals
  • Superintendent of Public Instruction = salary of District Judge
  • Corporation Commissioners = salary of associate District Court Judge of county with population over 30,000
  • State Treasurer = salary of associate District Court Judge of county with population over 30,000
  • State Auditor and Inspector = salary of associate District Court Judge of county with population over 30,000
  • State Insurance Commissioner = salary of associate District Court Judge of county with population over 30,000
  • Commissioner of Labor = District Court Special Judge

Because of the linkages the Oklahoma legislature had refused to grant judicial salary increases for years, voting against changes proposed by the state’s Board on Judicial Compensation. Because of the linkages last year saw only Oklahoma District (general jurisdiction court) judges getting an increase (and thanks to the linkages local district attorneys as well), resulting in trial judges making more than appellate judges whose salaries were tied to the Governor, Attorney General, and other state-level officials. That topsy-turvy situation was discussed here. The new Oklahoma plan would delink the salaries and create a special commission to recommend executive salary levels.

 

 

Colorado plan to shift costs for court facilities to state killed in committee

Should court facilities be the responsibility of state government or local/county? Many states have provisions that the county “shall provide the physical facilities” for the courts. A Colorado plan (SB 15) to shift the responsibility to the state and away from county governments, which initially looked to have support in that state’s senate, was killed last week.

Current law (C.R.S. 13-3-108(1)) provides

The board of county commissioners in each county shall continue to have the responsibility of providing and maintaining adequate courtrooms and other court facilities including janitorial service, except as otherwise provided in this section.

SB 15 would have altered this provision to provide the gradual transfer of the responsibility from the county to the state with certain counties transitioning as early as FY 2016. The state would have paid rent for the properties starting at 10% or 20% of fair market value rent and increasing annually to 100%.

Finally, after full state takeover (i.e. 100% rental rate) for the properties, there would have been the option for the state to simply buy the property outright.

After the state has completely assumed the responsibility of providing and maintaining adequate courtrooms and other court facilities in a county as specified in this section, the state may negotiate with the county to acquire the property from the county in lieu of continuing to pay rent.

SB 15 had met with initial approval by the Senate State, Veterans, & Military Affairs Committee on February 2, but was ultimately killed by the Senate Appropriations Committee on April 10.

Colorado Legislative Year in Review: $1.5 million Underfunded Courthouse Facility Cash Fund

Law

HB 1096 Creates the underfunded courthouse facility cash fund commission and the underfunded courthouse facility cash fund and appropriates $1.5 million for the fund. Commission to grant money from fund for master planning services for construction or remodeling projects, to seek matching funds or leveraging opportunities for construction or remodeling projects, and to address emergency needs due to the imminent closure of a court facility.

Election 2014 Final Results: The winners and losers

The votes are in and the results from last night’s elections are below. Analysis of the results to follow later today.

Winners

  • Alabama Amendment 1 (72%): Prohibit state courts from using international or foreign law; prohibit state courts from giving full faith and credit to decisions from other states that reference international or foreign law
  • Alabama Shelby County Local Amendment 1 (79%): Judge of the Probate Court must be an attorney
  • Arkansas Issue 3 (53%): Creation of salary commission to determine judicial and other salaries
  • Hawaii Amendment 1 (82%): Require names submitted to governor for selection to judicial office be released
  • Nevada Question 1 (54%): Creation of intermediate appellate court (court of appeals)
  • New Mexico Amendment 3 (62%): Allow legislature to set deadline for judges to file paperwork seeking reelection
  • Oregon Measure 87 (57%) : Allow state judges to teach part time at public colleges/universities
  • Tennessee Amendment 2 (66%): Appoint-confirm-retention election method for state’s appellate judges

Losers

  • Florida Amendment 3 (48%): Allow governor to prospectively appoint judges to appellate courts — when the judge’s term is about to expire — before the vacancy occurs
  • Hawaii Amendment 3 (22%): Increase mandatory judicial retirement age from 70 to 80
  • Louisiana Amendment 5 (42%): Eliminate mandatory judicial retirement age

Changing civil jurisdiction thresholds – Part 1

Most states have at least 2 levels of trial court, with a civil jurisdiction amount dividing them. For example a $1,000 civil case may be filed in the limited jurisdiction court, but a $100,000 case may only be permitted in the general jurisdiction court. Changes to this threshold can change the way courts are managed or function as caseloads and revenues rise/fall as a result. This series examines the existing thresholds and the legislative efforts to change them over the last decade. For a listing of all current civil jurisdiction thresholds, click here.

Alabama to Georgia below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 1

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 1

Most state constitutions grant their court of last resort, typically called the “supreme court”, or their judicial council some degree of rulemaking authority. My colleagues here at the National Center have a listing of all such provisions here. In the last several years, however, legislatures have made efforts to amend or alter those provisions. This series will examine all such efforts and how they have fared.

Alabama to Georgia below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 1

Election 2014: Missouri initiatives fail to make it onto ballot; Colorado “Clean Up the Courts” initiatives have until August 4 to get 86k signatures

Yesterday the Missouri Secretary of State announced the questions that had gathered enough signatures on initiative petitions to be put on the ballot in 2014. Absent from the list were the several proposals (Initiative 2014-047 and the nearly identical 2014-048) to end merit selection in the state.

With their absence the only state that appears to have anything circulating at this point is Colorado’s “Clean Up the Courts” constitutional amendments. Local media coverage here.

Question #79 keeps the state’s judicial retention elections but requires that the judges receive a 2/3rds “yes” vote to be retained. Somewhat confusingly, Question #79 would apply to the judicial races on the November 4, 2014 general election ballot, the same election that would determine passage of Question #79 itself.

The second item, Question #94 (described by proponents as the “Honest Judge Amendment”), would disband the state’s Commission on Judicial Discipline and transfer discipline of judges to the state’s Independent Ethics Commission. Discipline would also be expanded to include any act by a judge that “may be otherwise subject to appellate review.” The Independent Ethics Commission under Question #94 would be free to ignore any appellate rulings in a case at will and allows the reopening of previously dismissed complaints. On May 29, the state Supreme Court affirmed the Title Board’s description of Question #94.

Shall there be an amendment to the Colorado constitution concerning regulation of judicial conduct and, in connection therewith, transferring jurisdiction over judicial discipline and disability to the independent ethics commission from the commission on judicial discipline and specifying that such jurisdiction includes review of claims of violations of the Colorado code of judicial conduct and claims of disability, as well as complaints that were previously dismissed by the commission on judicial discipline?

86,105 signatures on Questions #79 and #94 must be turned in by August 4, 2014.

Special look at what will be on the November 2014 ballot affecting state courts

Publication link here.

There are 6 months until the November 2014 elections and the ballot will be full of items impacting the courts. This special edition reviews what will be and may be before voters in 26 short weeks.

Alabama

SB 4 of 2013, the American and Alabama Laws for Alabama Courts Amendment, will be the second time (Oklahoma 2010 was the first) voters will get to weigh in on banning state court use or reference to international or foreign law or court decisions. The Alabama version goes further, however, and not only bans use of foreign/international law in the state’s courts, but also refuses to grant full faith and credit to court decisions or orders issued in other states that use or reference foreign/international law.

HB 205 of 2013, a “local” constitutional amendment, is also on the ballot. It would require the Judge of Probate of Shelby County be an attorney. Because of the way the Alabama Constitution is structured, such a change has to take the form of a constitutional amendment that is voted on only by the residents of the affected county.

Arkansas

HJR 1009, the Elected Officials Ethics, Transparency and Financial Reform Amendment, is effectively three amendments in one. The first part restricts lobbying and lobbyist gifts for all elected officials, including judges. The second item would expand term limits for members of the legislature, allowing them to serve up to 16 years. The third part removes the legislature’s power to set salaries for elected officials, including Supreme Court, Court of Appeals, Circuit, and District judges (i.e. all but City Court judges), and transfers it to a salary commission called the Independent Citizens Commission. The Chief Justice would get to pick 1 member of the 7 member Commission. During its first meeting/session the Commission could increase (or decrease) salaries to any level they wished. Subsequent adjustments would be limited to increases/decreases of no more than 15%.

HJR 1009 also removes the guarantee that judicial salaries may not be diminished (expenses paid to judges will keep their protections). Moreover, it eliminates a provision that all Circuit Judges in the state receive a uniform salary. It also specifically provides that salaries to judges and others be paid monthly.

Florida

SJR 1188 addresses whether the incoming or outgoing governor gets to fill appellate vacancies that occur on the same day as the transfer of the governorship. SJR 1188 opts for the outgoing, allowing for “prospective appointments” via the state’s merit selection system. Critics argue this is an effort to “pack” the Florida Supreme Court. The only 3 justices appointed by a Democratic governor are all being forced out of office due to the state’s mandatory judicial retirement age in 2019. There is the possibility Republican Governor Rick Scott, if re-elected, would be able to appoint all their replacements as he was leaving office. SJR 1188 has to receive the approval of 60% of those voting on the subject.

Hawaii

HB 420 requires the state’s merit selection commission (the Judicial Selection Commission) to publicly disclose its list of nominees for appointment to the office of the Chief Justice, Supreme Court, Intermediate Appellate Court, Circuit Courts, or District Courts concurrently with its presentation of that list to the Governor or the Chief Justice (in Hawaii, the Chief Justice selects District Court judges).

SB 886 will be the third time in the last decade Hawaii voters contend with the issue of judicial retirement. SB 886 would increase the constitutionally established mandatory retirement age for justices and judges from 70 to 80 years of age. The last two attempts both failed (for a full history of the earlier attempts, click here).

Note: Hawaii requires that the measures receive the approval of a majority of those voting in the election, thereby making a non-vote on these two ballot items effectively a no vote. This resulted in the failure of a ballot item in 2012 to allow Hawaii’s chief justice to recall retired judges back into temporary service.

Louisiana (highly likely)

HB 96 or SB 11 would remove the state’s mandatory judicial retirement age. Currently judges must retire at the end of the term during which they reach age 70. In 2013 the House was unable to muster the 2/3rds majority to get it on the ballot; that changed in 2014 when the House approved their version 72-19 (70 required). The Senate approved its version unanimously. The two differ only in terms of ballot language and as of now (May 2014) it appears SB 11 will be the one to advance onto the ballot.

5/8/14 update: Since putting this together another bill has advanced far enough along to warrant some attention. SB 216 is a constitutional amendment that would grant the state’s supreme court the power to move or reallocate a judicial vacancy when the seat is open. The supreme court would not need to ask the permission of the legislature for a reallocation/move but would need approval by the legislature and the governor to abolish the vacancy outright.

New Mexico

SJR 16 repeals a constitutional provision that says, “The date for filing a declaration of candidacy for retention of [judicial] office shall be the same as that for filing a declaration of candidacy in a primary election.” Instead, the legislature would be free to set the declaration of candidacy date for judicial retention elections as it saw fit.

Nevada

For the fourth time in 4 decades Nevada voters will get to decide on a constitutional amendment creating an intermediate appellate court called the Court of Appeals, this time as SJR 14. The prior efforts all lost by roughly the same 47-53 margins, including the latest attempt in 2010. Full details on the prior efforts can be found here.

Oregon

SJR 203 provides employment by the Oregon National Guard for the purpose of performing military service or employment by any public university for the purpose of teaching does not prevent the person from serving as a judge. The current constitution prohibits judges or any official for that matter from “hold[ing] more than one lucrative office at the same time” with only limited exceptions. This was originally passed as SJR 34 of 2013, however SJR 203 also includes provisions that allow school employees to serve in the state legislature.

Tennessee

Tennessee had a statutory-based merit selection system for the state’s appellate courts that lapsed; the governor continued it via executive order. SJR 2 would specifically put into the state constitution a quasi-federal system in which the governor appoints, the House and Senate confirm, and additional terms are by retention election. The current governor has vowed to retain a merit selection commission to recommend to him names for appointment.

Initiatives

This may be the first year in a decade where no item affecting the courts will make its way to the ballot via initiative. Of the 25 states that allow for the use of initiatives to get items on the ballot, only 2 even have items that have been submitted for possible signatures and it is not clear the proponents are actually trying to get signatures on a large scale.

Colorado: A group called “Clean Up the Courts” has two constitutional amendments currently circulating. Question #79 keeps the state’s judicial retention elections but requires that the judges receive a 2/3rds “yes” vote to be retained. Somewhat confusingly, Question #79 would apply to the judicial races on the November 4, 2014 general election ballot, the same election that would determine passage of Question #79 itself.

The second item, Question #94, would disband the state’s Commission on Judicial Discipline and transfer discipline of judges to the state’s Independent Ethics Commission. Discipline would also be expanded to include any act by a judge that “may be otherwise subject to appellate review.” The Independent Ethics Commission under Question #94 would be free to ignore any appellate rulings in a case at will.

Signatures on both Questions must be turned in by August 4, 2014. It is not clear whether or not signatures are being collected on either of these measures.

Missouri: Initiative 2014-032 would amend the state’s constitution and put in a provision for campaign contribution limits. Individuals would be limited to contributing a maximum of $2,600 to a candidate for state races and all judicial races.

Initiative 2014-047 and the nearly identical 2014-048 end merit selection in the state and require judges to be elected in partisan elections. Judicial candidates would be free to solicit, receive, and make any legal campaign contributions or expenditures that benefit their own campaigns. The initiatives decrease Supreme Court and Appellate Court judges’ terms from 12 years to 8 and increase the number of Supreme Court judges from 7 to 9.

It is not clear whether signatures were being collected on any of these measures prior to the deadline for filing on May 4.

 

Colorado: bill to require interviews of local bar, prosecutors, and public defenders for judicial performance evaluations withdrawn

A plan to require Colorado’s district judicial performance evaluation commissions interview prosecutors, defense attorneys, and the local bar was killed in committee earlier this week. Current law (C.R.S. 13-5.5-105(d)) provides each commission has a duty “To interview district and county court judges and other persons and accept information and documentation from interested persons” without specifying those “interested persons”.

Under HB 1069 the duty to interview would have been expanded to explicitly include “a representative of the district attorney, a representative of the state public defender, [and] a representative of the local bar association.” An additional provision would have required each of the three organizations/entities have 35 days warning prior to the interview and that a majority of the members of the district evaluation commission be present. The interview could not be substituted with a written document “without the consent of the invited party.”

HB 1069 had moved with minimal opposition in the House (11-0 in the House Judiciary; 62-2 in the full House) before being indefinitely postponed at the request of the sponsor on March 24.