Kansas: possible vote Thursday on changing merit/commission selection for supreme court; does the House have the 2/3rds needed?

According to a reporter for the Associated Press the Kansas House is set to discuss Wednesday and vote Thursday on plans to end merit/commission selection for the state’s supreme court. As in prior years the question appears to focus on whether the House can muster the 2/3rds majority needed to pass the constitutional amendment(s) on to voters.

Last February the House Judiciary Committee approved two separate plans (discussed here).

  1. HCR 5004 replaces the current merit/commission selection system with one of partisan elections.
  2. HCR 5005 would move towards a quasi-federal model (Governor selects without commission list, Senate confirms with default confirm, yes/no retention elections).

Those proposals were carried over into the 2016 session. The question of whether the House can get the 2/3rds vote was what stymied prior efforts such as SCR 1601 of 2013 that had been approved by the Senate.

 

 

Kansas: legislature moving to repeal law that would defund courts for striking down laws; Senate hearing Thursday

The 2-year saga of efforts by the Kansas legislature to defund the judiciary should it strike down certain laws could be on the verge of ending.  Bills introduced recently in the House (HB 2449) and Senate (SB 320) would repeal provisions enacted in 2014 and 2015 that could have declared “null and void” all court funding if the courts ruled against the legislature.

As a refresher:

1) In 2014 the legislature enacted supplemental funding for the judiciary (Senate Substitute for HB  2338) but included in it provisions that would have removed the state’s supreme court of much of its administrative power over the lower courts. Moreover, HB 2338 contained a “non-severability” provision: the funding was void if the courts struck down any section of the bill that removed the supreme court’s power.

The provisions of this act are not severable. If any provision of this act is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of such act without such stayed, invalid or unconstitutional provision.

2) In 2015 the state legislature enacted a judiciary budget for FY 16 and FY 17 (HB 2005 as amended) and again attached a “non-severability” provision: the new funding was void if the courts struck down any section of the 2014 law that removed the supreme court’s power.

Except as provided further, the provisions of this act* are not severable, nor are they severable from the provisions of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas. If any provision of this act or of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas, is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of this act without such stayed, invalid or unconstitutional provision and the provisions of this act are hereby declared to be null and void and shall have no force and effect.

3) The Kansas Supreme Court in December 2015 in fact did strike down a portion of HB 2338 of 2014. A lower court had previously issued a stay of the defunding provision until March 15, 2016.

Both HB 2449 and SB 320 would repeal the non-severability provisions.

The Senate bill is scheduled for a hearing on Thursday, January 14.

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

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

Alaska

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

Arizona

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

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

Colorado

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

Connecticut

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

Florida

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

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

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

Hawaii

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

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

Indiana

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

Iowa

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

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

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

Kansas

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

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

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

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

Missouri

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

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

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

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

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

Nebraska

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

New Mexico

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

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

New York

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

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

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

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

Oklahoma

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

Rhode Island

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

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

South Carolina

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

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

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

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

South Dakota

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

Utah

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

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

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

Vermont

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

Wyoming

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

Kansas Legislative Year in Review: Cutting all judiciary funding if courts strike down 2014 law

Law

HB 2005 Judiciary budget  for FY 2016 and FY 2017. Creates or amends laws related to docket fees, dispositive motion filing fees, and the Electronic Filing and Management Fund. Provides funding only to occur if courts uphold as constitutional HB 2338 of 2014. Finds that if any part of HB 2338 of 2014 is found unconstitutional all judiciary funding is “null and void.”

 

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.

 

Kansas: upcoming yes/no floor vote calls for judiciary’s entire budget to be eliminated if courts rule against 2014 law

Yesterday a Kansas House/Senate conference committee agreed on a plan to tie the judiciary’s entire funding package to its eventual decision in a case currently pending in the state’s trial courts.

As previously discussed here, here, and here, this process started in 2014 when HB 2338 as amended gave $2 million to the state’s judiciary for FY 2015 but with a “non-severability” provision: the funds would only come available on the condition that the courts not strike down other provisions in HB 2338 stripping the supreme court of administrative power. Article 3 of the Kansas Constitution gives the Supreme Court, “general administrative authority over all courts in this state.”

Rather than just ending the 2014 $2 million supplemental, this year’s plan as approved by the conference committee yesterday would completely de-fund the judiciary if the courts rule against any provision in HB 2338, in particular the provision currently contested in a lawsuit filed in February transferring the ability to name chief judges from the Supreme Court down to the District Courts and Court of Appeals.

Local news reports indicate that because the bill is coming out of a conference committee there will be no opportunity to amend out the non-severability provision, meaning legislators will have to vote yes or no on the entire appropriations bill unchanged.

Kansas: plan to cut judiciary’s funding if courts strike down certain state laws apparently killed UPDATE: it lives

UPDATE: The non-severability provision is still alive as HB 2005 as amended by the Senate. HB 2365 deals with funding for the judiciary as approved by a House committee, but the main bill at issue remains HB 2005 which remains alive as of this afternoon (May 5). Story edited below to reflect new info.

This year’s plans to cut the funding for Kansas courts if they strike down certain laws appear to have fizzled, but the question of cuts to last year’s budget for declaring laws unconstitutional remain remains active in at least one bill to fund the state’s courts.

As detailed here and here, this process started in 2014 with HB 2338 as amended. The bill gave $2 million to the state’s judiciary for FY 2015 but with a “non-severability” provision: the funds would only come available on the condition that the courts not strike down other provisions in HB 2338 stripping the supreme court of administrative power.

The provisions of this act are not severable. If any provision of this act is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of such act without such stayed, invalid or unconstitutional provision.

A lawsuit was filed in February 2015 challenged the constitutionality of HB 2338 in light of a state constitutional provision that “The supreme court shall have general administrative authority over all courts in this state.” That lawsuit is pending a copy is located here.

A new plan was set in motion in 2015 (discussed here) to tie yet another round of funding for the courts to the 2014 legislation as well: if the courts upheld the pending lawsuit and found the 2014 law unconstitutional both it and any funding from the 2015 bill (HB 2005 as amended by the Senate) would be void.

The provisions of this act are not severable, nor are they severable from the provisions of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas. If any provision of this act or of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas, is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of this act without such stayed, invalid or unconstitutional provision and the provisions of this act are hereby declared to be null and void and shall have no force and effect.

A House committee met last week and officially reported out today a plan (HB 2365): the courts could get funds and the non-severability provision has been removed under this bill. The main funding bill for the Senate side remains HB 2005 as amended and it keeps the non-severability language.

 

Election 2015: Mississippi initiative would grant, not strip, courts of power to enforce K-12 funding

With so much focus in Kansas (various) and Texas (SJR 53) to strip courts of the power to order K-12 funding, Mississippi voters will in November 2015 decide on whether to explicitly grant that power to the courts.

Initiative 42, set to appear on the November 2015 ballot thanks to signatures gathered and a court ruling last week, would amend Section 201 of the state’s constitution to read

To protect each child’s fundamental right to educational opportunity, The Legislature the State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may provide. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.

An alternative (42-A) submitted by the legislature would simply add “effective” to the existing provision.

The Legislature shall, by general law, provide for the establishment, maintenance and support of an effective system of free public schools upon such conditions and limitations as the Legislature may prescribe.

Thus in November under Mississippi’s unique voting system on initiatives, voters will cast two votes:

  1. Supporting either or neither measure and then
  2. Voting for a preferred choice: Initiative 42 or Initiative 42-A

 

Kansas: Senate plan provides judiciary more funding, but only if courts rule against pending lawsuit

For the second year in a row Kansas legislators appear poised to give the courts more money on the condition they do not strike down certain laws as unconstitutional.

In 2014 the legislature enacted HB 2338 as amended. The bill, as detailed here and here, gave $2 million to the state’s judiciary on the condition that the courts not strike down other provisions in HB 2338 stripping the supreme court of administrative power, including how local chief judges are elected (currently the Supreme Court picks; HB 2338 would let local judges pick their own chief). HB 2338 contained a non-severability clause: if the Kansas courts strike down the stripping of the supreme courts authority or any other portion the entire bill/law falls including the additional funding.

In February 2015 a lawsuit was filed challenging the constitutionality of HB 2338 in light of the conflicting law (HB 2338: local judges pick the chief judges) and Supreme Court rule directing the Supreme Court pick. Moreover, the state’s constitution provides “The supreme court shall have general administrative authority over all courts in this state.” That lawsuit is pending a copy is located here.

Now in April 2015 a new funding bill has been introduced (HB 2005, as amended) to give additional funding for the Kansas courts. Under the new plan (HB 2005 as amended by the Senate) the judiciary will get funding for the upcoming year provided it does not rule in favor of the pending lawsuit and find that HB 2338 of 2014 is unconstitutional.

The provisions of this act are not severable, nor are they severable from the provisions of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas. If any provision of this act or of 2014 Senate Substitute for House Bill No. 2338, chapter 82 of the 2014 Session Laws of Kansas, is stayed or is held to be invalid or unconstitutional, it shall be presumed conclusively that the legislature would not have enacted the remainder of this act without such stayed, invalid or unconstitutional provision and the provisions of this act are hereby declared to be null and void and shall have no force and effect.

HB 2005 of 2015 is currently pending in was approved by the Senate Ways & Means Committee 3/25/15.

Kansas: legislators want to spell out impeachment threat against Supreme Court (and only the Supreme Court) possibly for K-12 funding decisions that “usurp” the legislature

The ongoing tensions between the Kansas judiciary and legislature over K-12 education funding is leading to some hint at impeachment for the court.

SB 297 was filed yesterday in the Senate Judiciary Committee. While the Kansas constitution grants the power of impeachment for all state officials (Art. II, Sec. 27 & Art. III, Sec. 15), this particular bill targets the Supreme Court specifically and seems to allude to the possible impeachment if they find the state’s K-12 funding is insufficient.

Currently, the state constitution (Art. II, Sec. 28) limits impeachment to “treason, bribery, or other high crimes and misdemeanors.” The listed causes for impeachment in SB 297 include the items in Art. II, Sec. 28 but also now include

  • attempting to usurp the power of the legislative or executive branch of government
  • attempting to subvert fundamental laws and introduce arbitrary power
  • commission of treason
  • commission of bribery
  • commission of other indictable criminal offenses
  • commission of a breach of the public trust
  • commission of a breach of judicial ethics
  • failure to perform adequately the duties of office
  • exhibiting wanton or reckless judicial conduct
  • exhibiting personal misbehavior or misconduct
  • failure to adequately supervise subordinate employees

SB 297 is pending before the Senate Judiciary Committee.