Election 2016: Results and Implications for State Courts

Time to review the 4 ballot items from last night I was focused in terms of affecting the courts.

Mandatory judicial retirement ages

Oregon’s attempt to repeal that state’s mandatory judicial retirement age of 75 failed with only a 37% yes vote. That number is consistent with other states that attempted to raise or remove their ages. Those efforts only received, at best, 40% (New York 2013) and at worst 22% (Hawaii in 2014).

The other attempt was in Pennsylvania. There the proposal on the ballot would have set the mandatory judicial retirement age at 75 but pointedly did not include language that this was an increase from the current 70. The language, which appears to have been unique to Pennsylvania, resulted in the proposal squeaking to victory with 50.88%.

As I’ve noted, this issue is not going away as more and more states look to put in such increases or repeals. The trend remains, however, one in which legislators are persuaded to put the items on the ballots, but voters when confronted with language related to increases or repeals are inclined to reject such efforts.

Judicial Disciplinary Commissions

The Georgia legislature’s attempt to take control over the membership of the Judicial Qualifications Commission was approved with 62% of the vote. This move comes after similar efforts in Tennessee approved in 2010 that give the legislature the power to name 6 out of 16 members of that state’s judicial disciplinary body (Board of Judicial Conduct).

That said, it is unclear whether legislators in other states will have an interest in changes such as those in Georgia and Tennessee, especially given that in 24 states changes to membership would require either a constitution amendment and in another 10 the membership is set by the judiciary, not the legislature.

Clerks of Court Terms

Arkansas’ amendment to increase the terms in office for county officials from 2 years to 4, including Clerks of the Circuit Court, was approved. This leaves only certain counties in North Dakota with clerks of general jurisdiction courts elected to 2-year terms. As such, last night’s vote to increase terms isn’t so much the start of a trend but the end (or near end) of one.

Bail Reform

One additional item not covered but that readers have shown an interest in that relates to the courts is New Mexico’s bail reform constitutional amendment (Amendment 1) that was approved with 87% of the vote. The plan allows judges to deny bail to defendants considered exceptionally dangerous and to grant  pretrial release to those who aren’t considered a threat but remain in jail because they can’t afford bail.

In light of increased interest in reforms to fees, fines, and bail practices in state courts, it is almost certain that some activity in this arena will take place in state legislatures, if not as a constitutional amendment then as legislation focused on pretrial release and risk assessment.

Election 2016: Georgia Amendment 3 – Should the senate confirm picks to the judicial disciplinary commission? Most states say no. Only Texas lets senate reject picks made by judiciary itself.

As previously noted, Georgia’s Amendment 3 would give the legislature power over the state’s judicial disciplinary commission (called the Judicial Qualifications Commission) that few if any states grant to their legislature. Under the proposal and implementing legislation the legislature sets the membership of the JQC, something most states do not allow. Moreover, the plan calls for a majority of the new JQC to be picked by legislative leaders, something no other state (other the Virginia) allows to occur.

The third element in play is for all JQC members picked by the House/Senate leadership (4), the Governor (1), or the Supreme Court (2) to be subject to Senate confirmation.

Appointments to the Judicial Qualifications Commission shall be subject to confirmation by the Senate as provided for by general law.

Most states do not allow for any such confirmation votes. Only 15 states have such votes, in a 16th (Virginia) all members of the judicial disciplinary commission are picked by the legislature therefore a confirmation vote is redundant.

Moreover, where states do allow for legislative confirmation votes, they do not allow the legislature the power to reject those appointments made by the judiciary/judges. Only 1 state, Texas, allows that state’s senate the power to confirm, or conversely reject, appointments made by the judiciary.

In all other states the power to confirm is limited to picks made by the Governor, the state bar, or by legislative leaders themselves.

Details below the fold.

Continue reading Election 2016: Georgia Amendment 3 – Should the senate confirm picks to the judicial disciplinary commission? Most states say no. Only Texas lets senate reject picks made by judiciary itself.

Election 2016: Georgia Amendment 3 – Only 9 states give the legislature power to name members to the judicial disciplinary commission; only 1 allows legislature to name majority

As previously noted, on the ballot this November is Georgia’s Amendment 3. The amendment would repeal the existing Art. VI, Sec. 7, Para. 7 of the state constitution that establishes the state’s judicial disciplinary commission (Judicial Qualifications Commission) and readopt it with one major revision: membership of the JQC would be left to the legislature.

Amendment 3, and its implementing legislation (HB 808) would give the legislature two powers they don’t currently have:

  1. the ability to pick a majority of the JQC
  2. Senate confirmation for all picks (“Appointments to the Judicial Qualifications Commission shall be subject to confirmation by the Senate as provided for by general law.”) This will be discussed in a later blog post.

Under HB 808, the leaders of the Georgia legislature would be able to name 4 out of 7 members of the new JQC: 2 by the Speaker of the House and 2 by the President of the Senate. The Supreme Court (2) and Governor (1) would pick the rest.

Only a handful of states (9) give the legislature or legislative leaders the power to name members to the judicial disciplinary commission; a tenth (Oklahoma) lets the legislature pick 2 out of 3 members of a body that conducts preliminary investigations only (Council on Judicial Complaints).

Moreover, in 8 of those 9 states that allow for legislative picks, the legislature is only able to name a minority of the membership; only in Virginia does the legislature name a majority of members however it should be noted that in Virginia the legislature also appoints all judges (there are no elections and the governor has no role in judicial selection other than to fill temporary vacancies.

State by state details below the fold.

Continue reading Election 2016: Georgia Amendment 3 – Only 9 states give the legislature power to name members to the judicial disciplinary commission; only 1 allows legislature to name majority

Election 2016: Georgia Amendment 3 – should the legislature set the membership of the state’s judicial disciplinary commission? Most states say no.

On the ballot this November is Georgia’s Amendment 3. The amendment would repeal the existing Art. VI, Sec. 7, Para. 7 of the state constitution that establishes the state’s judicial disciplinary commission (Judicial Qualifications Commission) and readopt it with one major revision: membership of the JQC would be left to the legislature.

The current provision specifically provides for a commission made up of

(1) Two judges of any court of record, selected by the Supreme Court;
(2) Three members of the State Bar of Georgia who shall have been active status members of the state bar for at least ten years and who shall be elected by the board of governors of the state bar; and
(3) Two citizens, neither of whom shall be a member of the state bar, who shall be appointed by the Governor.

All of that language would be repealed and replaced with

The General Assembly shall by general law create and provide for the composition, manner of appointment, and governance of a Judicial Qualifications Commission…

While all states at this point have some sort of judicial disciplinary body in place, the vast majority have opted not to allow the legislature to tamper directly with the membership of these entities.

The vast majority of states either place the membership directly into the constitution (24 states), as Georgia currently has, or the membership is set by the state’s supreme court/court of last resort via court rule (10 states). Some states use a combination.

Only 16 states give the legislature the power to set the membership and, as will be discussed in an upcoming blog post, most legislatures have opted to only give about 1/3 of the seats to the legislature itself to fill.

Details on who picks what members to what judicial disciplinary bodies below the fold.

Continue reading Election 2016: Georgia Amendment 3 – should the legislature set the membership of the state’s judicial disciplinary commission? Most states say no.

Election 2016: Coverage of November ballot items starts today; live coverage of all items election night at ncsc.org/elections

With the election season in full gear, today starts Gavel to Gavel’s review of the 4 ballot items to watch for state courts:

State Ballot Item Synopsis
Arkansas Issue 1 Extends terms for Circuit Clerks and other county officials from 2 years to 4 years
Georgia Amendment 3 Disbands Judicial Qualifications Commission, allows legislature to recreate and set membership
Oregon Measure 94 Repeals mandatory judicial retirement age
Pennsylvania Amendment 1 Increases mandatory judicial retirement age from 70 to 75

In addition to these items, I’ll be once again hosting live election night coverage of the 65 supreme court/court of last resort races at the National Center for State Court’s Election 2016 website www.ncsc.org/elections

Georgia: Senate approves bill that would require municipal judges serve for set terms, allow local governments to remove from office only for cause; latest effort to change Municipal Courts

Georgia’s Senate last week approved its version of a House bill that would give Municipal Court judges set terms in office of at least 1 year and prohibit local governments from removing them from office unless they committed what amounted to an impeachable offense.

Under HB 691 as amended municipal court judges would no longer “serve at the pleasure of the governing authority.” Instead they would be required to be given set terms of at least one year in office or until appointment of a successor. Moreover, these judges could only be removed for cause by 2/3rds of the governing authority. The causes for removal include:

  1. Willful misconduct in office;
  2. Willful and persistent failure to perform duties;
  3. Habitual intemperance;
  4. Conduct prejudicial to the administration of justice which brings the judicial office into disrepute; or
  5. Disability seriously interfering with the performance of duties, which is, or is likely to become, of a permanent character

These provisions are taken verbatim from the state’s constitution (Art. VI, Sec. VII, Para. VII) in describing the reasons why the state’s Judicial Qualifications Commission may remove a judge from office. Additionally the municipalities could provide for additional conduct that would warrant removal in their various charters.

Any such removal procedure would have to be done in an open public hearing or hearings and the judge could ask for a review by the local Superior Court. Additionally municipal court judges would remain subject to discipline and removal by the Judicial Qualifications Commission.

HB 691 is just the latest effort to change the qualifications and terms for Georgia Municipal Court judges. A 2011 law (SB 30) requires the judges of these courts be attorneys while allowing sitting non-attorney judges as of the time of enactment to remain in office.

HB 691 now goes to the House which approved its own version earlier this year.

Plans to add 2 justices to the Arizona and Georgia supreme courts pass committee hurdles; critics call them court packing plans

Plans to expand the Arizona (from 5 to 7 members) and the Georgia (7 to 9) supreme courts cleared committee hurdles yesterday and appear on their way to final passage. Proponents argue the expansions are needed for growing states. Critics in both Arizona and Georgia view the proposals as efforts at packing the courts.

Arizona HB 2537 which was already approved by the House last month cleared the Senate Government Committee on a 4-3 vote yesterday. It now goes to the Senate Rules Committee before going on to the full Senate.

Georgia’s Senate Judiciary Committee approved HB 927 which expands the supreme court and restructures the appellate jurisdiction and procedures both for that court and the state’s Court of Appeals. That bill will now move on for a Senate floor vote.

Both bills call for the new vacancies to be filled by the state’s sitting governors. Arizona uses a merit/commission system; Georgia’s bill calls for the governor alone to make the selections.

The efforts by legislators in Arizona and Georgia appears to be part of a larger national trend to alter the number of justices on courts of last resort as detailed here.