Changes to mandatory judicial retirement ages: Virginia plan may fall apart over what judges get the increase; Oregon Senate unanimously approves repeal; dead in Maryland; small change moving in North Carolina; debated in Massachusetts

Since last month’s update on the subject of mandatory judicial retirement age changes there’s been several developments. The biggest stumbling block: which judges should get the increase in the age?

Maryland

The Senate approved 47-0 a plan (SB 847) to increase the mandatory retirement age for judges from 70 to 73 (original bill called for 75) on March 24. The Senate plan would have applied to all judges after adoption of the amendment. The House, however, had various ideas on how this would impact current judges. The House Judiciary Committee approved amendment 172916/1 which would have allowed any judge that

reaches the age of seventy years before the date that the judge is eligible to be elected, appointed, or reappointed

to stay on to 73 or the end of their current term with the consent of the governor. A later floor amendment (393229/1) added the word “re-elected”

reaches the age of seventy years before the date that the judge is eligible to be elected, re-elected, appointed, or reappointed

The changes occurred on April 9, just days before the legislature adjourned sine die. As a result, the effort failed this year.

Massachusetts

The judges of Massachusetts only fell under the state’s mandatory judicial retirement age in the 1970s (Amendment LVII adopted in 1972)

[U]pon attaining seventy years of age said judges shall be retired.

Starting in 2009 there have been efforts to increase this age to 76. The first two attempts (HB 1640 of 2009/2010 & HB 1826 of 2011/2012) were approved by the Joint Committee on the Judiciary but proceeded no further. HB 68 of 2013/2014 saw rejection by the committee. The bill is now back up as HB 1609 of 2015/2016 and was heard before the Joint Committee on April 15.

North Carolina

The House approved 116-0 on March 25 a bill that would provide a minimal extension to the state’s judicial retirement age. Currently judges must retire on the last day of the month in which they reach 72. Under HB 50 as approved they may serve last day of the year they reach 72.

A counter proposal (HB 205) to extend this to the last day of the year they reach 75. Was approved by the House Judiciary IV committee on March 18 but has remained in locked up in the House Pensions and Retirement committee.

Oregon

On April 15 the Oregon Senate approved 30-0 a plan to eliminate the state’s mandatory retirement age or, to be more precise, repeal the state constitutional provision allowing the legislature to set such an age. SJR 4 would eliminate language from the state constitution that

[A] judge of any court shall retire from judicial office at the end of the calendar year in which he attains the age of 75 years. The Legislative Assembly or the people may by law: Fix a lesser age for mandatory retirement not earlier than the end of the calendar year in which the judge attains the age of 70 years.

The constitutional amendment is now pending on the House Speaker’s desk awaiting committee assignment.

Virginia

After 9 years of trying, a plan to increase the retirement age for at least some judges in Virginia passed the House and Senate, but the decision to increase for some judges and not others may result in a veto by the governor.

At issue under HB 1984 and SB 1196 was what judges should get the increase from 70 to 73. The House/Senate compromise approved provided that

  • all appellate judges effective July 1, 2015 would get the increase to 73
  • trial judges elected or appointed after July 1, 2015 would get the increase to 73
  • trial judges elected or appointed prior to July 1, 2015 would still have to retire at 70

The governor, however, issued a “recommendation” to eliminate the three-tired plan (Virginia governors can return a bill without a veto to the legislature “with recommendations for their amendment“). The Senate voted in favor of eliminating the three-tired plan 31-8. The House rejected it 27-63. Local media reports indicate the unamended bill will now go back to the Governor as early as today (Friday) for him to sign or veto.

Continue reading Changes to mandatory judicial retirement ages: Virginia plan may fall apart over what judges get the increase; Oregon Senate unanimously approves repeal; dead in Maryland; small change moving in North Carolina; debated in Massachusetts

Changing civil jurisdiction thresholds – Part 3

This third 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.

Massachusetts to New Jersey below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 3

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 3

This third 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.

Massachusetts to New Jersey below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 3

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

Kansas, Oklahoma, and other states show the legislative perils of being a statutorily created intermediate appellate court

I noted two weeks ago that when Oklahoma’s Speaker submitted his legislative agenda with respect to the courts that it included a bill for term limits for the Court of Civil Appeals only (HB 3379). It was notable in that much of the Speaker’s prior commentary had been about his objections to the state’s supreme court. Last year a move was made to eliminate merit selection for the Kansas Court of Appeals, but the inability to do so for the Kansas Supreme Court. A year before that, anger over an Arizona Supreme Court decision prompted a member of the Arizona Senate to try and reduce the size of the Court of Appeals, which never even heard the case in question, from 22 down to 6. All this seems to suggest a pattern of legislative activity emerging with respect to intermediate appellate courts (IACs), much of which seems focused on statutorily created IACs.

First, some history.

IACs are relatively new; most states simply didn’t have them prior to 1965 and to this day 10 states still do not have an IAC (that may go down to 9 if Nevada voters approve an IAC in November 2014). In making revisions to their state constitutions, some states during this time declined to create an IAC, instead giving the legislature the option at some point in the future to create such courts by statute if the need arose.

As a result of the 45 IACs in 40 states (Alabama, Indiana, New York, Pennsylvania and Tennessee have two IACs) 16 are created via statutory provision alone. As such, unlike the super-majority + vote at the ballot box needed to alter courts of last resort, IACs are in a more vulnerable spot. Some rely entirely on statute for their method of selection, terms, and retirement. Others, such as Massachusetts, may rely on statute for their creation but once created the state constitution sets the parameters in these three areas.

Details regarding those 16 IACs below the fold.

Continue reading Kansas, Oklahoma, and other states show the legislative perils of being a statutorily created intermediate appellate court

Missouri Senate bill would require mandatory recusal where nominating commission members appear before a judge they nominated

All merit selection systems for judicial offices require that the commission that recommends names include a mix of lawyers and non-lawyers. There are presently, however, no apparent provisions that would preclude the attorneys on the commission to appear before the judicial-nominee-turned-judge they recommended.

That would change under Missouri SB 489 of 2014, as prefiled for the upcoming session. The bill would require recusal by any judge or justice “when a party or party’s attorney to the proceeding before the judge was a member of the appellate judicial commission or a circuit judicial commission who nominated the judge.” The bill then reiterates two constitutional provisions that in the event a Circuit Court judge was forced to recuse the supreme court could name a replacement or the circuit court itself could call in another judge.

The only recent bill that comes close to this is one proposed in Massachusetts in 2011 (SB 1562). In that state governors use a voluntary merit selection system; they are not bound by or to the names submitted by the Judicial Nominating Commission. The Massachusetts bill is a reversal of the Missouri one; rather than the judge being forced to recuse if an attorney that was on the commission appeared, the attorney who served on a commission would be effectively barred from practicing law in any court in the state.