Hawaii Mandatory Judicial Retirement Age Amendment: 32 states impose some form of mandatory retirement age on most or all of their judges

Hawaii’s constitution (Art. 6, Sec. 3) currently provides that judges must retire at the age of 70.

Justices and judges shall be retired upon attaining the age of seventy years. They shall be included in any retirement law of the State.

The establishment of a mandatory age of 70 is consistent with the practice in the other states. All told, some 32 states have a general mandatory judicial retirement age. At the appellate level, it is fairly straightforward: the majority of states (21) set seventy as the age, however some states allow for judge to serve out the term or the year in which they reach the threshold age.

At the trial court level, things become somewhat murkier. For example in at least 8 states with mandatory retirement ages for higher courts (appellate, general jurisdiction) some or all of the state’s lower court judges are exempt. For example, in South Carolina appellate and trial judges generally must retire at age 72, but Probate and Municipal Judges have no specific mandatory retirement age. Georgia, on the other hand, has the opposite situation: there is no mandatory retirement age for their top courts but some Municipal Courts have imposed mandatory retirement ages on their judges.

The table below gives the general overview of retirement ages, detailed state by state analysis based on court type and other particulars below the fold.

Age # of States States
70 21 Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Dakota, Virginia, Wyoming
72 4 Colorado, Iowa, North Carolina, South Carolina
74 1 Texas
75 5 Indiana, Kansas, Oregon, Utah, Washington
90 1 Vermont
None 18 California, Delaware, Georgia, Idaho, Illinois*, Kentucky, Maine, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Rhode Island, Tennessee, West Virginia, Wisconsin

*Illinois statute struck down as unconstitutional but never formally repealed

Continue reading Hawaii Mandatory Judicial Retirement Age Amendment: 32 states impose some form of mandatory retirement age on most or all of their judges

Changing civil jurisdiction thresholds – Part 2

This second in a series of posts looks at legislative efforts to change the civil jurisdiction thresholds in state limited and general jurisdiction courts in the last decade. For a listing of all current civil jurisdiction thresholds, click here.

Hawaii to Maryland below the fold.

Continue reading Changing civil jurisdiction thresholds – Part 2

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 2

This second installment looks at efforts to change state constitutional grants of rulemaking authority to courts of last resort, typically called the “supreme court”, or judicial councils.

My colleagues here at the National Center have a listing of all such provisions here.

Hawaii to Maryland below the fold.
Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 2

New Jersey: State bar plus 20+ county bars want automatic reappointment of judges, but no bill introduced; plan similar to ones in Hawaii and Vermont

With concern growing that Governor Chris Christie will not reappoint Chief Justice Stuart Rabner when his current term 7-year term comes up in June, news reports indicate that the State Bar of New Jersey along with “20 or 21” county bars have backed a proposal to change the constitution to, in effect, require governors reappoint judges. Despite the endorsements, however, there’s no indication that such a plan has even been introduced.

First, some background.

Since a 1947 constitutional revision rewrote the state’s judiciary article, New Jersey has operated under a modified federal system for appointment to the state’s top courts (Supreme, Appellate Division of the Superior Court, and Superior Court) where governors appoint and the senate confirms any qualified person for an initial term of 7 years. After 7 years the governor reappoints and the senate reconfirms the person to serve until age 70.

The Justices of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of 7 years and upon reappointment shall hold their offices during good behavior…Such justices and judges shall be retired upon attaining the age of 70 years.

Reappointment was effectively automatic until Governor Christie ended the practice by declining to reappoint several members of the state’s Supreme Court and potentially Chief Justice Rabner.

The key change sought by the bars would make reappointment an automatic process unless it could demonstrate the judge in question was unfit.

The Justices of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of seven years. They shall be reappointed by the Governor, with the advice and consent of the Senate, unless they have demonstrated unfitness for such reappointment, and upon reappointment shall hold office during good behavior.

However as recent news reports indicate no member of the legislature has in fact introduced such a proposal.

There are two states that have a similar automatic-reappointment provision in their respective constitutions.

Hawaii: The state’s Governor (or Chief Justice for District Court) is responsible for appointment for a judge’s initial term from a list prepared by the state’s Judicial Nominating Commission. The pick is then subject to Senate confirmation. However, for subsequent terms, the judge need only return to the Judicial Nominating Commission for reappointment; neither the Governor nor the Senate plays a role. (Hawaii Constitution Art. VI, Sec. 3)

Vermont: For judges of the state’s Supreme and Superior Courts, the Governor makes an appointment subject to Senate confirmation. For subsequent terms, however, the Governor plays no role. Instead, judges submit their names to the legislature where they are vetted by a Joint Committee on Judicial Retention. The judge is automatically reconfirmed “unless a majority of the members of the General Assembly voting on the question vote against continuation in office” (emphasis added, Vermont Constitution § 34 and 4 V.S.A. § 607 & 608)

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.

 

Hawaii: Plan to require judicial nominating commission release all names submitted to governor/chief justice under merit selection plan goes on the 2014 ballot; not a single vote against proposal in either chamber

Last Friday (March 21) the Hawaii Senate unanimously approved HB 420, a constitutional amendment to require the state’s merit selection commission release all the names submitted to the governor (and chief justice for District Court appointments) for nomination. As previously discussed here and here, not a single member of the House or Senate voted against HB 420 (two voted “yes with reservations” on the House floor). Proponents argue that the public has a right to know all the names submitted for consideration. Opponents argue that lawyers may find their practices devastated if it is known they are looking to move onto a judgeship.

This marks two judiciary-related items on Hawaii’s November 2014 ballot, the other being a plan to increase the state’s mandatory retirement age from 70 to 80.

 

“Court packing”, control of merit selection commissions, name disclosure, and judicial performance: very big week for judicial selection in the state legislatures & next week could be even bigger

This week turned into a very big week for the way states pick their judges and justices and next week could be just as big.

Alabama: the House and Senate Judiciary committees passed bills to create a rebuttable presumption of judicial recusal for campaign contributions. The House wants a tiered approach: recusal is presumed where there candidate received 10%, 15% or 25% (dependent on court level) of their total campaign contributions from a party, an attorney, or a law firm. The Senate Judiciary version has a flat 25% rate for all courts. The Senate bill (SB 440) is set for a possible vote on Session Day 25 (March 18) while the House version has yet to be formally transmitted to the Senate.

Alaska: plans to give the governor control over the Alaska Judicial Council, which serves as the state’s merit selection commission and judicial evaluation commission as well, were debated in the House and Senate. The state’s court system has come out officially against the House plan and some are referring to the plans as an effort at court packing/court stacking. Proponents argue that the bar is too liberal and the public not sufficiently represented. Opponents warn of a politicization of the judicial selection and evaluation process. The House is debating several options, including expanding the Council to give the governor a majority of seats (6 out of 10). The Senate plan (SJR 21) to expand from 6 to 10 seats was approved by the Senate Finance Committee March 12 and is pending the Senate Rules Committee. The House plan (HJR 33) had a hearing in committee and is set for hearings today (March 14) in the House Judiciary Committee and (perhaps anticipating Judiciary Committee passage) before the Finance Committee on March 20.

Florida: an effort to allow governors to make “prospective appointments” to the state’s appellate courts, decried by some as an effort to pack the Florida Supreme Court, made its way out of the Senate Judiciary Committee. SJR 1188 deals with the situation in the state’s merit selection system when an appellate judge’s term and that of a governor expire on the same day; can the outgoing governor make the appointment in the days prior to the expiration of the governor’s and the judge’s/justice’s term? The question is particularly critical this year as the only 3 justices on the Supreme Court appointed by a Democratic governor will all be forced out of office on the exact same day. Current Republican governor Rick Scott, should Scott win the 2014 Florida governor’s race, would get the picks. The bill could be heard in the Senate Rules Committee next week.

Hawaii: a constitutional amendment to require the state’s merit selection commission release all the names submitted to the governor for nomination took one more step closer to appearing on the 2014 ballot. HB 420 cleared the Senate Judiciary Committee unanimously; so far not a single member of the House or Senate has voted against it (two voted “yes with reservations” on the House floor). Proponents argue that the public has a right to know. Opponents argue that lawyers may find their practices devastated if it is known they are looking to move onto a judgeship. The full Senate could get the bill next week.

Minnesota: plans to adopt a merit selecti0n system with judicial performance evaluation cleared a key Senate subcommittee this weekSB 1082 as approved by the Senate Rules Committee’s Elections subcommittee would create a merit selection system for all judges in the state, judicial performance evaluations, and provide for retention elections rather than the current nonpartisan ones.

Oklahoma: a Senate plan to vacate all current judicial nomination commission members selected by Oklahoma State bar was approved 33-12 by the Senate on March 12. In addition to tossing the bar-appointed members SB 1988 removes the Oklahoma Bar’s power to name any future attorney members to judicial nominating commissions and provides instead the House and Senate leaders are to name the attorney members.

Tennessee: a plan to require all state judges face off in contested elections unless a quasi-federal system is approved in November 2014 failed in committee because no one wanted to second the bill. HB 1767 would have automatically set up contested elections for appellate courts if Amendment 2 (governor appoints, House and Senate confirms, retention elections) isn’t passed this November.

Utah: judges of the state’s Justice Courts are going to be subject to judicial performance evaluation under HB 325 as approved by the Senate this week. Currently all other judges in the state are subject to the provisions, including one that has the judicial performance evaluation commission release their report and findings about the judge in the days before an election (such as this one).

Hawaii: constitutional amendment allowing retired judges to come back into temporary service that narrowly lost in 2012 back up for debate

A plan to let the Hawaii Chief Justice recall retired judges back into service that failed at the ballot box in 2012 is up for a new hearing today.

First, some background.

Hawaii’s been voting on and debating the subject of what to do about mandatory judicial retirement for the better part of a decade. In 2006 and 2012 the voters declined to make changes to their existing system, and in November 2014 they’ll be voting again to increase the age from 70 to 80.

Of these, the 2012 vote stands out. That proposal, discussed here would have kept the mandatory judicial retirement age but let the chief justice recall judges forced out due to it back into service for up to 3 months at a time. Hawaii Amendment 2 of 2012 failed, not because an absolute majority voted against it, but because 10.4% of voters did not even vote on it at all, effectively casting “no” votes under a provision that required “a majority of all the votes tallied upon the question, this majority constituting at least fifty per cent of the total vote cast at the election.”

HB 275 of 2014 is effectively identical to the item rejected in 2014, it does clarify and specify that the recall provision would apply to all “judges and justices” and drops the phrase referencing retirement at “seventy years of age” because that clause may be amended up to 80 in November of this year.

HB 275 was approved unanimously by the House on February 28 of 2013 and carried over into the 2014 session.

 

Hawaii Senate votes today on creation of environmental divisions of state’s Circuit Courts

Many states have statutes or rules of court that allow for the creation of “environmental courts”; dockets or divisions of a court that hear nothing but cases related to environmental issues. Hawaii’s Senate is set to vote today on such authorizing language.

SB 632 would require the consolidation and assignment of all cases involving environmental disputes into a new environmental division within the Circuit Court; the bill goes out of its way to specify that despite the use of the term “environmental court” these are not separate courts (“The environmental courts… shall not be deemed to be other courts as that term is used in the state constitution.”) The state’s chief justice would be authorized to assign judge(s) to the division(s). In addition to the authorizing the environmental division, SB 632 requires the judiciary report by 2015 the number of environmental-related cases filed in the circuit courts in each of the past five years.

SB 632 was approved by the Senate Judiciary Committee February 28, having previously been approved by the Energy and Environment Committee on February 11.

Changes to merit selection commissions move out of committee in three states; 2 bills would diminish role of attorneys/state bar

Efforts to change merit selection, usually in favor of giving more power to legislatures and governors and diminish the role played by attorneys and state bars, are now advancing in several states.

Last week Oklahoma’s Senate Rules Committee approved SB 1988 which would remove all current judicial nominating commission members selected by the Oklahoma bar. Those 6 members would be replaced by attorneys chosen by the Speaker of the House and the Speaker of the Senate.

On the same day Hawaii’s Finance Committee was approving HB 420, a constitutional amendment to require the release of all names submitted by the state’s judicial nominating commission to the governor for consideration for a judicial vacancy. Prior coverage of this can be found here.

Yesterday Alaska’s Senate Judiciary Committee approved an amended version of SJR 21 a constitutional amendment to alter that state’s Judicial Council, which serves as both the merit selection commission and judicial performance evolution commission. The current council is split between 3 attorneys chosen by the state’s attorneys, 3 members of the public chosen by the governor, and the chief justice. Although the official text is not yet available, news reports indicate that the plan would increase the council to 10 with non-attorney members picked by the governor in the majority (6/10). Prior coverage of this can be found here.