Kansas effort would create Courts of Civil and Criminal Appeals, strip Supreme Court of all criminal appellate review

A 2013 plan discussed here to strip the Kansas Supreme Court of appellate review of all criminal cases has been reintroduced this morning by an unknown author (the official sponsor is the Committee on Appropriations). (h/t to @JohnCelock).

HB 2411 of 2015 is an almost verbatim repeat of HB 2416 of 2013. The current Court of Appeals would end effective August 2016. Of the 14 judges of the Court of Appeals, 9 would move to a new Court of Criminal Appeals and the other 5 to the Court of Civil Appeals (the 2013 version flipped these numbers). The chief judge of the court of appeals would decide which judges go where. This is a marked difference from the last time a state tried something similar; in 2011 Florida’s House approved a plan to create two new supreme courts (one civil and one criminal) and mandated the most senior justices, all of whom happened to have been appointed by Democratic governors, to the new criminal court.

What makes HB 2411 interesting is the provision as to appellate review. Under Section 2(b)

The court of criminal appeals shall be the final court of appellate review in cases under the court’s jurisdiction.

This would appear to preclude an appeal in any criminal case from the Court of Criminal Appeals to the Supreme Court.

Under Section 3(b), however, civil appeals would still be subject to an appeal to the Supreme Court

The court of civil appeals shall be the final court of appellate review in matters under the court’s jurisdiction, except in matters for which the supreme court has appellate jurisdiction.

This appears to differ from the Alabama and Tennessee models; both specifically provide that determinations made by the Court of Civil Appeals and Court of Criminal Appeals in their states are reviewable by the Supreme Court as the state’s court of last resort (see Alabama here, Tennessee here).

Attempting to convert, or make, an intermediate appellate court into effectively a non-reviewable court of last resort is not unheard of but such efforts have not fared well. This issue came up, perhaps for the first time, in Colorado in 1886. There, the state’s legislature attempt to create a statutory Court of Appeals with final determining power was rejected when the Colorado Supreme Court issued an advisory opinion against the plan (In re Constitutionality of Senate Bill, 9 Colo. 623 (Colo. 1886)).

The Colorado legislature removed the non-reviewable-by-supreme-court provision and the Supreme Court issued another advisory opinion in 1891 giving its approval; so long as a Court of Appeals decision could be appealed to the Supreme Court it was held to be “not obnoxious…to any constitutional objection.” (In re Constitutionality of Court of Appeals, 15 Colo. 578 (Colo. 1891)) That particular iteration of the Colorado Court of Appeals only survived 14 years and was abolished in 1905.

HB 2411 has been filed in the House but not yet assigned to a committee.



What trial court has jurisdiction to hear a challenge to state laws/actions? The one in the capital county, or any county? States debating venue.

The question of what state court has venue or jurisdiction to hear challenges to state laws and/or state actions has come up a great deal recently. Some states require the suit be filed in the county that contains the capital. Wisconsin (Dane County, discussed here) and Michigan (Ingham County, discussed here) for example had something like this until they changed their law to get these cases moved out of the capital county. North Carolina’s effort last year disallows challenges to the constitutionality of state laws be tried in any county, instead specifically allowing the Chief Justice to pick three judges from anywhere in the state.

This year there have been three movements in various directions on this score.

Kansas: SB 58 amends the state’s Judicial Review Act to require all judicial review of agency actions be moved into the capital county (Shawnee), rather than the current practice of filing “in the county in which the order or agency action is entered or is effective…” That bill was approved by the Senate Judiciary Committee on February 5.

Kentucky: SB 178 moves legal/constitutional challenges under 100 different statutes out of the capital county (Franklin) and into any county. That bill is pending in the Senate Judiciary Committee.

Mississippi: Attempting to get cases challenging state laws and agency actions moved out of the capital county (Hinds) HB 710 instead allows the Chief Justice to designate a Circuit Judge from anywhere in the state to hear the case and to have the hearings and proceedings moved to any courthouse in the state (discussed here). That bill was approved by the full House on February 4.





Kansas: changes to selection of Supreme Court out of committee, but may not have 2/3rds needed

Two bills to change the way the justices of the Kansas Supreme Court are selected made their way out of a House committee Monday, but it is not clear if they will have the 2/3rds necessary of the full House to make it onto the ballot.

Currently Kansas uses a commission based or “merit” selection system (detailed here). HCR 5004 would replace this system with one of partisan elections. HCR 5005 would move towards a quasi-federal model (Governor selects without commission list, Senate confirms, yes/no retention elections). Both came out of the House Judiciary Committee on 13-9 votes.

The question now is whether any of these will make it out of the full House, where a 2/3rds majority would be required. The same inability to get a 2/3rds vote is what blocked similar efforts in 2013, including one that would have moved to a quasi-federal model (SCR 1601 of 2013) that had been approved by the Senate.


Kansas: a look at the bills seeking to change supreme court selection

In recent years, no state has seen more bills to change their method of judicial selection than Kansas and 2015 is no exception. What follows is a rundown of those introduced as of today.

Currently the Kansas Supreme Court’s selection process (Art. III, Sec. 5) has three key elements that could be changed under the legislation introduced

Commission submits binding list to Governor

The constitution calls for the creation of a Supreme Court Nominating Commission made up of

  • 1 member of the bar, chosen statewide by the members of the bar, as chair
  • 4 members of the bar (constitution says one per congressional district) chosen by the members of the as bar in that district
  • 4 members (constitution says one per congressional district) appointed by the governor from among the residents of the district

When a vacancy occurs on the court, the Supreme Court Nominating Commission is to submit a list of three names to the government for appointment.

Governor appoints without legislative confirmation

The Governor is bound to select from those names (if he or she fails to do so, the chief justice picks). The legislature plays no role.

Retention by majority vote

The appointed justice serves for an initial term ending on the second Monday in January following the first general election that occurs after the expiration of twelve months in office. They are then subject to a yes/no retention election. If a majority of those voting on the question vote against retention, the office is vacant. If a majority vote for retention, the justice serves for a 6-year term.

Changes and August vs. November 2016

The legislation thus far introduced changes several of the items listed above. Moreover, several proposals opt to place the constitutional amendment not on the General Election ballot for November 2016, but in the August 2016 Primary Election races.

Synopsis August vs. November 2016 Commission membership change Commission submits binding list to Governor Governor appoints without confirmation Retention by majority vote
HCR 5004 Partisan elections August Commission eliminated No No No
HCR 5005 Governor appoints, Senate confirms, yes/no retention elections November Commission eliminated No Governor appoints with Senate confirmation Yes
HCR 5006 Governor appoints, Senate confirms, serve for life August Commission eliminated No Governor appoints with Senate confirmation No, serve for life
HCR 5009 Requires judges in retention elections receive a 67% “yes” vote to remain in office. November No Yes Yes No, 67%
HCR 5012 and implementing HB 2301 Governor appoints from list provided by House Judiciary Committee, Senate confirms, yes/no retention elections November Commission eliminated No, House Judiciary committee Governor appoints with Senate confirmation Yes
HCR 5013 Change commission membership November 4 members chosenby election of bar members (one per congressional district)5 members chosen by governor (one per congressional district + 1 statewide to serve as chair)6 members chosen by legislature (2 House Speaker; 1 House Minority Leader; 2 Senate President; 1 Senate Minority Leader) Yes Yes Yes

Kansas: hearing tomorrow on Governor’s plans to change way Kansas Supreme Court is chosen

A hearing is set for tomorrow on plans to changes the way the justices of the Kansas Supreme Court are chosen. In his state of the state address Gov. Sam Brownback indicated he desired either a federal-type system of appointment with Senate confirmation and retention elections (which he was able to achieve by statute for the Court of Appeals in 2013) or partisan elections.

For the Supreme Court, this will require an amendment to the state constitution along the lines of HCR 5004 (partisan elections) or HCR 5005 (appoint/confirm/retention). While the change to a federal-type system met with approve in Senate in 2013 (SCR 1601 of 2013) it failed to get the 2/3rds vote needed in the House as discussed here.


Kansas becomes third state to consider requiring judges in retention elections get supermajority (67%) “yes” votes

I mentioned last month the plans in Arizona and Indiana to require judges in  retention elections to have to obtain a 60% (Arizona) or 67% (Indiana) “yes” vote to remain in office. Now a similar proposal has been introduced in Kansas.

Under HCR 5009 a judge in a retention election for the state’s supreme court would have to receive a 67% yes vote (specifically that no more than 33% vote against retention) in order to remain in office. Other retention elections (Court of Appeals and some District Courts) would remain unaffected.

The apparent cause for the move was the recent retention election last year of two justices of that state’s supreme court who ruled on K-12 funding and overturned the death sentence handed down against two brothers. Both justices received only about 52.6% of the vote.

Had the 67% threshold been in place in the last decade 6 out of 14 races would have result in justices of the Supreme Court losing office. 4 of the 6 justices that voted to reverse and remand the death sentences would not have been in office.


  • Rosen 52.7%
  • Johnson 52.6%


  • Mortiz- 70.9%


  • Beier- 63.2%
  • Biles- 62.0%
  • Nuss- 62.5%
  • Luckert- 62.7%


  • Rosen- 69.9%
  • Johnson- 70.2%


  • Davis- 67.5%


  • Beier- 76.4%
  • Nuss- 75.6%
  • Gernon- 75.9%
  • Luckert- 76.5%

Kansas, Mississippi, and Montana may allow or make it easier to have recall elections for judges

Three states this week have introduced bills to allow or make it easier for voters to recall judges.

Kansas: as I noted last year, the Kansas constitution from 1914 to 1974 did allow for the recall of judges. That provision was amended out, but anger at the state’s supreme court caused a member of the House to introduce a bill (HB 2492) to reimpose recall for judges.

Since the 2014 bill would have violated the state constitution (“All elected public officials in the state, except judicial officers, shall be subject to recall…“), the bill died. The plan has now been reintroduced as a constitutional amendment (HCR 5003) to put recall of judges back into play by striking the word “except judicial officers” and replacing with “including“. What is interesting is that a specific member of the House is not identified in the bill, instead the official sponsor is the Committee on Federal and State Affairs.

Mississippi: the state does not presently have a system of recall elections at either the state or local level. There was a flurry of efforts in the mid-1990s to allow for the recall of elected officials in general or judges in particular. None of the bills progressed out of committee and one in particular targeting judges (SB 2792 of 1996) was specifically voted down in committee. The second wave of such bills started to be introduced in 2012 and have been reintroduced every session since but is not clear any have had so much as a committee hearing (details below the fold). This year’s iteration is HB 105 of 2015, which has been sent to the House Apportionment and Elections committee.

Montana: the state of Montana does have recall statute that allows for judges to be recalled from office, but limits it certain circumstances. Specifically, Section 2-16-603, MCA, limits the basis for a recall of a judge or other official to “physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense.”

HB 220 of 2015 would maintain those limits for local/county/municipal officials, but allow for the recall of judges of the Supreme Court and District Courts plus other state elected officials for any reason. This marks the first attempt to expand the use of recall against state judges in decades. HB 220 has been filed in the House but not yet assigned to a committee.

Continue reading Kansas, Mississippi, and Montana may allow or make it easier to have recall elections for judges

Kansas Legislative Year in Review: Courts get more funding, but only if they don’t strike down certain laws


HB 2065 Expands the jurisdiction of district magistrate judges by allowing them to conduct felony first appearance hearings and have jurisdiction over uncontested actions for divorce, as well as over any civil action with the consent of the parties. Clarifies that district magistrate judges may hear misdemeanor arraignments. Amends various statutes to establish that appeals from district magistrate judges who are regularly admitted to practice law in Kansas shall be directly to the Court of Appeals, rather than to a district judge. Appeals from district magistrate judges who are not regularly admitted to practice law in Kansas will continue to be to a district judge, as under previous law. Directs that all actions or proceedings before a district magistrate judge regularly admitted to practice law in Kansas be on the record if such actions or proceedings would be on the record before a district judge.

HB 2338 Appropriates $2.0 million in additional State General funds for the Judicial Branch in FY 2015. Increases docket fee revenue to the Judicial Branch. Removes power of supreme court to name chief judges of court of appeals and district courts. Removes supreme court’s power over district court budgets. Provides allocating a budget for each judicial district court with chief judge to have the authority to expend funds as necessary. Allows for delay in filling judicial vacancies for up to 120 days. Deletes statutory requirement for the payment of longevity to Judicial Branch non-judicial staff. Provisions of bill are non-severable; if courts find any portion unconstitutional entire bill including funding voided.

HB 2446 Sets time limits for determination of motions/cases: 120 days in District court & 180 days in appellate courts.

HB 2448 Provides dissemination of personal information of judge or judge’s family in certain instances is a crime.

Wisconsin becomes third state to consider tinkering with mandatory judicial retirement age to push judges off appellate courts

In the process of examining the issue changes to mandatory judicial retirement ages, I’ve noted that in many cases these are enshrined in state constitutions, making them effectively impossible to increase as voters have rejected such efforts. Now, however, there is a new pattern emerging to impose new, or decrease existing, retirement ages to remove currently serving appellate justices and judges, most recently in Wisconsin.

The first recent effort was in Kansas in May 2013. Members of the Kansas legislature, angry at the Kansas Supreme Court’s decisions proposed reducing the mandatory retirement age by statute from 75 (or more specifically the end of the term in which they hit 75) to the day that the appellate judge turned 65. I discussed that effort, formally introduced as HB 2415 in this post here.

The second effort was in Oklahoma in January 2014. While the state’s constitution allowed the legislature to set whatever age it wished for mandatory judicial retirement, the legislature never had. However members of the Oklahoma Senate, angry at the Oklahoma Supreme Court’s decisions striking down several laws proposed instituting for the first time such a retirement age. The bill (SB 1897) would have had the effect of removing almost all of the judges from the state’s Supreme Court and its other top court the Court of Criminal Appeals as discussed here. A similar bench-clearing bill (HB 3378) was introduced in the House. SB 1897 was approved by the Senate Pensions Committee but died before coming to a floor vote.

The third effort, alluded to just this week, is in Wisconsin. Like Oklahoma, the state’s constitution doesn’t specify a mandatory retirement age but leaves it to the legislature to decide (so long as it is not below age 70). A member of the Wisconsin legislature has begun circulating a draft bill to impose a mandatory retirement age on judges of 75 or 80. The purported target of the bill is 80 year-old Chief Justice Shirley Abrahamson. The Chief Justice is already the indirect target of another bill, proposed and passed last session, that could end her chief justiceship. The state’s constitution provides the longest serving justice is automatically chief justice, in this case Abrahamson. However, a constitutional amendment passed in 2014 and up for re-passage in the 2015/2016 session would allow the court’s members to pick the chief justice.

Some additional background.

Looking just at appellate judges 33 states have a mandatory judicial retirement age for appellate judges. Of these, 18 states have age specified in the state’s constitution: Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, and Wyoming.

The remaining states implicitly or explicitly grant the legislature some room for activity in this area.

  • Use of retirement systems/pensions to force out of office: Several states such as Arkansas, Kansas, South Carolina, and South Dakota have no specific constitutional provision for the mandatory retirement of the state’s judges. Instead, there are statutes that specify if a judge does NOT retire at a particular age they forfeit some/all/most of their retirement and pension. This system was relatively common in the early 1900s; California had a similar system of diminishing judicial benefits to entice retirement that was upheld as constitutional (Rittenband v. Cory, 159 Cal. App. 3d 410) but later abandoned (AB 1297 of 1991).
  • Explicit but limited delegation to the legislature: A few states grant the legislature a “range” within which to work. Oregon’s constitution sets the age at 75 but allows the legislature to lower it but never beyond age 70. Vermont’s constitution lets its legislature pick any age from 75 to 90 or if the legislature opted not to pick an age, 75 (the legislature set it at 90). The state of Washington’s constitution sets the mandatory retirement age at 75 but then lets the legislature lower it 70. Wisconsin allows the legislature to set any age for mandatory retirement that is above 70. So far, they have declined to do so.
  • Explicit unlimited delegation to the legislature: The legislatures of Illinois (Art. 6, Sec. 15), Indiana (Art. VII, Sec. 11), Iowa (Art. V, Sec. 18), Minnesota (Art. 6, Sec. 9), North Carolina (Art. IV, Sec. 6), Oklahoma (Art. VII, Sec. 11), and Utah (Art. VIII, Sec. 15), have effectively unfettered discretion to set a mandatory judicial retirement age as they see fit, however there are constitutional limits. The Illinois Supreme Court struck down its mandatory retirement statute on equal protection grounds – the way the law was drafted judges who hit the age of 75 were “automatically” retired, but a 75 year old who never served in judicial office could run for a judgeship and win (Maddux v. Blagojevich, 233 Ill. 2d 508 (2009)).



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