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.


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.


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.


No changes offered.


No changes offered.


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.


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 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.


No changes offered.


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.


No changes offered.


No changes offered.


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.


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.


No changes offered.


Connecticut Legislative Year in Review: Supreme Court may write Code of Evidence; expanding use of credit card payments in courts


SB 152 Allows authorized Judicial Branch employees to access the Connecticut on-line law enforcement communications teleprocessing (COLLECT) system regarding branch job applicants or employees or job applicants at agencies under contract with the branch that will have access to criminal justice information.

SB 389 Allows a person to pay by credit card any Judicial Branch fee, cost, fine, or other charge, not just those from the Superior Court. Provides the person paying by credit card can be charged a service fee up to the amount of the charge from the card issuer, including any discount. Provides the chief court administrator can set times and conditions for credit card payments.

SB 456 Authorizes the Supreme Court to adopt the Connecticut Code of Evidence.

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

Bill would explicitly let Connecticut Supreme Court create Code of Evidence

An effort to codify the way that Connecticut handles its Code of Evidence was proposed in the Senate this week. The state has had a Code of Evidence since 2000, developed and created by the state’s Superior Court judges under their rule making authority as rules of court; the code itself includes a detailed review of how that process unfolded in the late-1990s.

SB 456 provides the Supreme Court the authority to adopt a Connecticut Code of Evidence. The Code would be developed by a committee of judges of the Superior Court and attorneys. The committee’s chair would report to the legislature annually on the committee’s progress and any proposed revisions.

SB 456 has been filed in the Joint Committee on the Judiciary.

Several state legislatures have empowered chief justices, supreme courts to handle natural disasters in recent years

In the aftermath of the September 11 attacks states began the process of dealing with the potential for courts to be shut down for days at a time. Hurricanes Katrina and Rita extended that potential closure to weeks. As a result in the last decade state legislatures have considered and enacted various bills to empower chief justices and supreme courts to make emergency declarations, allowing for the moving of courts and the tolling/suspension of some deadlines. (See this report I wrote in 2010 on all such statutes at the time).

In light of today’s “arctic vortex” shutting down most of the middle part of the country, below is a review of laws recently enacted on the subject, including North Dakota whose new 2013 law may be put to use for the first time today.

Connecticut HB 5539 (2010) Provides Chief Justice may take any action necessary in the event of a (as defined by statute) major disaster, emergency, civil preparedness emergency, disaster emergency, or a public health emergency, to ensure the continued efficient operation of the Supreme, Appellate and Superior Courts, the prompt disposition of cases and the proper administration of judicial business. Such necessary action may include: (1) Establishing alternative locations to conduct judicial business in the event that one or more court locations cannot be used, (2) suspending any judicial business that is deemed not essential by the Chief Justice, and (3) taking any other appropriate action necessary to ensure that essential judicial business is effectively handled by the courts.

Delaware SB 25 (2009) Provides for the operation of the courts in the event of an emergency due to natural or manmade causes that destroys or severely damages one or more court facilities or severely impacts the ability to staff the courts. Grants the Chief Justice the authority to declare a judicial emergency when there are emergency circumstances affecting one or more court facilities. Provides the order declaring a judicial emergency shall be limited to an initial duration of 30 days, but may be modified or extended for additional 30 day periods. Provides Chief Justice may also 1) Order that a court may operate in a county other than the county in which it is normally located. 2) Extend statutes of limitations and time periods prescribed by statute as well as those time limitations prescribed by court rule or administrative directive which the Chief Justice already has the authority to extend pursuant to his authority under Art. IV, Section 13 of the Delaware Constitution 3) Declare that specific proceedings not normally conducted by audiovisual device may be conducted in this manner. When such usage is not otherwise authorized by statute or court rule, an explanation of the compelling state interest in such usage shall be included in the order and 4) Take such other actions as the Chief Justice reasonably believes necessary for the continued operation of the courts during a judicial emergency. Provides that the host county shall be a proper venue for proceedings. Establishes provisions of this law shall preempt and supersede but not repeal any conflicting provisions of any other provision of law.

Georgia HB 1294 (2008) Allows Chief Justice to extend judicial emergencies beyond normal limitations if a public health emergency exists. Emergency declaration may remain in place for as long as the public health emergency exists.

Georgia HB 339 (2011) Revises the courts to which a challenge of a quarantine or vaccination order may be brought and manner of appealing orders concerning such challenges. Removes chief judge of the court of appeals’ power to declare judicial emergencies. Provides extensions of judicial emergencies by chief justice may only last as long as governor has declared state of emergency.

Hawaii HB 1983 (2006) Provides during a period of civil defense emergency proclaimed by the governor, the chief justice shall be authorized to order the suspension, tolling, extension, or granting of relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, in civil or criminal cases or administrative matters, in any judicial circuit affected by the governor’s proclamation. Provides chief justice shall determine the judicial circuits so affected.

New Hampshire SB 370 (2008) Grants the chief justice of the supreme court the power to enter orders to suspend, toll, or otherwise grant relief from time deadlines imposed by statutes and rules of procedure, for a 21-day period, in the event of a declared state of emergency. Permits the legislature to terminate such orders by concurrent resolution.

New York AB 6921 / SB 2849 (2009) Repeals most existing law related to judicial emergencies. Provides if a court location is unsafe or impractical for the holding of a trial court, then the Governor may by order appoint another place for the temporary holding of court after consulting with the Chief Judge or his or her designee if practicable. Provides for the Court of Appeals and for trial courts where the Governor has not acted, the relocation power would fall to the Chief Judge. Provides for intermediate appellate courts ( i.e. Appellate Division and Appellate Terms of Supreme Court), the relocation power would fall to the Presiding Justice of the Appellate Division after consulting with the Chief Judge or his or her designee. Provides all temporary relocations must be to the most proximate place that the term of court safely and practicably can preside, and should be consistent with applicable State and local disaster preparedness plans. Provides for trial courts, temporary relocations must be after consultation with relevant local leaders (e.g., county executives or mayors) if practicable. Provides for relocation orders would expire within 30 days but could be renewed for successive periods of 30 days each in like fashion as an original order. Provides regardless where a court temporarily sits, the court would continue to preside on behalf of its original jurisdiction (i.e. judicial department, judicial district, county, city, etc.) and the same substantive and procedural laws (e.g. governing venue, jury selection, papers and appeals) would apply as if the court were not relocated. Provides if a court is relocated temporarily outside its original jurisdiction, then facility costs would not be borne by the receiving locality but instead would become State costs charged to the Office of Court Administration. Memorializes the Chief Judge’s emergency relocation powers as provided above. Recognizes the continuing obligation of the State Disaster Preparedness Commission and local disaster preparedness commissions to insure that the disaster preparedness plans for which they are responsible take appropriate account of the provisions of this measure. (See also AB 10616 / SB 6900 of 2008)

North Carolina HB 1269 (2009) Allows courts to be closed for “catastrophic conditions” and defines the term. Allows Chief Justice to extend certain deadlines for “catastrophic conditions” and to issue any emergency directives necessary to ensure the continuing operation of essential trial or appellate court functions for 30 days, subject to 30 day renewals.

North Dakota HB 1073 (2013) Grants supreme court power to declare judicial emergencies. Allows for supreme court to toll statutes/deadlines. Does not allow for tolling or extension of deadlines or requirements imposed by U.S. or North Dakota constitution.

Oregon HB 2322 (2007) Provides Chief Justice may designate locations in the state for the sitting of circuit courts in the event of an emergency and that such locations designated need not be in the circuit court’s judicial district.

Oregon SB 270 (2009) Grants Chief Justice power to establish procedures for closing courts in emergencies and to establish standards for determining when courts are closed for purposes of ORCP 10, ORS 174.120 and other rules and laws that refer to periods of time when courts are closed.

South Dakota HB 1093 (2007) Allows Chief Justice to suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, whether in civil cases, criminal cases, administrative matters or any other legal proceedings as determined necessary.

Tennessee SB 3660 / HB 3060 (2008) Specifies that if an appellate court declares a disaster pursuant to applicable court rules, then all statutes of limitation and repose will be extended by the same number of days that the applicable filing deadlines are extended with deadlines to be extended only in county in which disaster is declared.

Texas HB 1861 (2009) Authorizes the Supreme Court of Texas to modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor and sets forth contingencies that provide for such action by another court or judge if a disaster prevents the supreme court from acting. Authorizes the local rules of administration that must be adopted by district and statutory county court judges in each county to provide for a coordinated response for the transaction of essential judicial functions in the event of a disaster. Includes as a purpose of the Texas Disaster Act of 1975 clarifying and strengthening the role of the judicial branch of state government in prevention of, preparation for, response to, and recovery from disasters.

Virginia HB 883 / SB 127 (2010) Sets out a procedure for the Supreme Court to follow in entering an order declaring a judicial emergency when there is a disaster as defined in the Commonwealth’s Emergency Services and Disaster Law. Permits the judicial emergency order to suspend, toll, extend, or otherwise grant relief from time limits or filing requirements in any court affected by the order and allows designation of a neighboring jurisdiction as proper venue for civil and criminal proceedings.

Connecticut Legislative Year in Review: Fees for court documents, publication of court decisions


HB 6387 Allows court clerks to record or copy certain documents by photograph, microfilm, computerized image, or another process that accurately reproduces or forms a durable medium for reproducing the original. Requires the person requesting the recording or copying to pay the associated fees regardless of the method the clerk used. These provisions apply to the following documents with the following fees: (1) recording the commission and oath of a notary public, $ 10; (2) making copies, $ 1 per page; (3) copying a judgment file, $ 15 or $ 25 for a certified copy; and (4) copying a foreclosure judgment certificate, $ 25.

HB 6448 Repeals outdated probate fee schedules.

HB 6692 ORIGINAL: Requires those too poor to pay fees associated with civil or criminal lawsuits work up to 20 hours in lieu of the fee. AS AMENDED: Strike all reference to working. Allows the court to deny an indigent person’s application for a waiver of court and service of process fees in civil actions if certain criteria are met.

SB 235 Enacts Uniform Electronic Legal Material Act. Provides for official publication of decisions of the the Supreme Court, the Appellate Court and the Superior Court.


Connecticut will NOT force courts to order poor into community service prior to filing civil suits

I noted last month that Connecticut was considering compelling those unable to pay civil filing fees to work up to 20 hours of community service. HB 6692 would have amended existing law to provide a person who could not pay due to indigence could be be compelled to work.

If the court waives such fee, fees or the cost of service of process, the court may, in connection with the granting of such fee waiver, order that the person participate in a program of community service, as set forth in section 2 of this act, for a period of time not to exceed twenty hours. In determining whether to order a person to participate in a program of community service, the court shall consider the person’s ability to perform community service and prior compliance with any order to participate in a program of community service.

The avowed purpose according to news reports was to stop frivolous lawsuits.

After an April 15 hearing the bill was effectively rewritten with all references to community service removed (additions to existing 52-259b(c) are underlined):

(c) Nothing in this section shall preclude the court from (1) finding that a person whose income does not meet the criteria of subsection (b) of this section is indigent and unable to pay a fee or fees or the cost of service of process, or (2) denying an application for the waiver of the payment of a fee or fees or the cost of service of process when the court finds that (A) the applicant has repeatedly filed actions with respect to the same or similar matters and such filings establish an extended pattern of filings that have been so without merit as to be deemed frivolous and an abuse of judicial process, (B) the application before the court is consistent with the applicant’s previous pattern of frivolous filings, (C) the application is sought in connection with an action that, on its face, fails to state a cognizable claim for which relief may be granted and would likely be dismissed by the court as frivolous, and (D) the granting of such application would constitute an egregious misuse of Judicial Branch resources. If an application for the waiver of the payment of a fee or fees or the cost of service of process is denied, the court clerk shall, upon the request of the applicant, schedule a hearing on the application.

The amended bill was approved 44-1 in the Joint Committee on the Judiciary on April 19.

Connecticut bill would require indigent work up to 20 hours of community service before filing lawsuits; hearing set for 4/15

Many states provide by law, court rule, or case law that an indigent person too poor to pay the fees associated with a  case may have the fees waived. Connecticut’s present statute on the subject, 52-259b(a) is fairly straightforward

In any civil or criminal matter, if the court finds that a party is indigent and unable to pay a fee or fees payable to the court or to pay the cost of service of process, the court shall waive such fee or fees and the cost of service of process shall be paid by the state.

HB 6692 would amend this to provide an alternative; if a person cannot pay due to indigence they can be compelled to work.

If the court waives such fee, fees or the cost of service of process, the court may, in connection with the granting of such fee waiver, order that the person participate in a program of community service, as set forth in section 2 of this act, for a period of time not to exceed twenty hours. In determining whether to order a person to participate in a program of community service, the court shall consider the person’s ability to perform community service and prior compliance with any order to participate in a program of community service.

Those seeking restraining orders against domestic violence under 46b-15 or 46b-38c would not be compelled to work.

HB 6692 is set for a hearing on April 15 before the Joint Committee on the Judiciary.

Efforts to enact, modify, or end merit selection for judges: what is moving and what is not

I’ve had several readers ask for a synopsis of what is gong on in states to enact, modify, or end merit selection in 2013. This post is intended to respond to those queries. The latest information can always be found at the Gavel to Gavel database located here.

Details below the fold.

Continue reading Efforts to enact, modify, or end merit selection for judges: what is moving and what is not