Michigan, Oregon, and Nevada legislatures look at 3 different approaches to judicial salaries: tie to CPI, tie to state employees, binding commission

Three states are actively debating the way in which to pay for, and increase, judicial salaries in their respective states. Each takes a somewhat different approach in this arena.

Michigan: Tie increases to state employees’ increases

SB 56, approved March 26 on a 33-3 vote, would link judicial salaries to those of state employees. Currently, judges of the Court of Appeals, Circuit Court, Probate Court, and District Court make a certain percentage of the salary of a Supreme Court justice. Court of Appeals = 92%; Circuit = 85%; Probate = 85%; District = 84%

SB 56 keeps the practice of using a percent of the Supreme Court and adds to it an amount based on percentage pay increases, excluding lump-sum payments, paid to civil service nonexclusively represented employees (NEREs) classified as executives and administrators on or after January 1, 2016. According to an analysis done by the Michigan Legislature that increase would be anywhere from 0-3% but has in the past averaged 2%.

Oregon: Tie to CPI

SB 446, set for a hearing tomorrow (April 8) is filed at the request of the state’s Chief Justice and the Oregon Circuit Court Judges Association. The plan calls for a review every before July 1 every year by the Chief Justice of the Portland-Salem, OR-WA Consumer Price Index for All Urban Consumers for All Items. If there was an increase in the previous calendar year, the Chief Justice would adjust the salaries for the Supreme Court, Court of Appeals, and Circuit courts accordingly effective July 1 starting July 1, 2016. The CPI data as of February 2015 can be found here and indicates increases from 2010-2014 of 1.3-2.9% with an average of 2.3%

Nevada: Create binding joint compensation commission

Last year Arkansas adopted a binding salary commission to set salaries for state officials including judges that could not be overridden by the state’s legislature. Nevada is set to debate today (April 7) the creation of a very similar commission for that state in the form of AJR 10. The constitutional amendment would set up a Citizens’ Commission on Salaries for Certain Elected Officers that would take over from the (advisory) Commission to Review the Compensation of Constitutional Officers, Legislators, Supreme Court Justices, Judges of the Court of Appeals, District Judges and Elected County Officers.

The new Citizens’ Commission, using language almost identical to the Arkansas bill from last year, would be made up of

  • Two members chosen by the Assembly Speaker
  • Two members chosen by the Senate Majority Leader
  • Two members chosen by the Governor
  • One member chosen by the Chief Justice

Notable here is the breakdown with legislative leaders picking a 4/7 majority of the new Citizens’ Commission The current advisory Commission to Review gives only 2/9 to the legislative leaders, another 2/9 to the legislative minority party leaders, 2/9 to the Chief Justice, and 3/9 to the Governor.

The new Citizens’ Commission would be prohibited from diminishing the salaries of judges and others while in office and be limited in increasing salaries more than 15% per report (except for the first report where the 15% ceiling would be waived). In Arkansas, the increases for judges were about 11% in that state’s first report.

Finally, and critically, there would be no legislative override of the Citizens’ Commission by the legislature.

The Legislature shall provide by law for setting apart from each year’s revenues a sufficient amount of money to pay such salaries [set by the Citizens’ Commission].

Aside from Arkansas, no other state has a comparable provision. 7 states allow for legislative override although some set the threshold as 2/3rds (Arizona, Delaware, Hawaii, Maryland, Missouri, New York, Oklahoma) while an 8th (Washington) allows for a voter referendum to override.

8 states continue to have partisan elections for their top courts; a look at legislative efforts to move to nonpartisan

With the expecting signing this week of a bill to transition West Virginia judicial races from partisan to nonpartisan, the number of states with partisan judicial races for their courts of last resort (usually called supreme court) will decrease down to 8. A look at those 8 and the efforts to move to nonpartisan races is below. Please note that in some cases alternative proposals, such as a move to merit/commission selection, have also been introduced and drawn much of the legislative focus and interest. This looks exclusively at the proposals to keep judicial elections but make them nonpartisan.

Continue reading 8 states continue to have partisan elections for their top courts; a look at legislative efforts to move to nonpartisan

Bills in Minnesota would end use of incumbent designation on ballots for judges seeking reelection; a look at states that use such designations

Four Six states provide for the general designation of a judge as an incumbent on the election ballot: Arkansas, California, Michigan, and Minnesota. At the same time Texas is considering joining in on this practice, two bills filed in the last several weeks in Minnesota would end the practice in that state.

1/30/2017 update: 6 states, Georgia and Oregon included.

First, some background.

While all four six states mentioned use some sort of incumbent designation, they do so in four different manners. This is how it appears in Arkansas under A.C.A. § 7-7-305 (sample ballot from here). Note that in Arkansas you may use the word “Judge” even if running for a higher court (i.e. a Circuit Judge running for Supreme Court Justice). For example when she ran for the Supreme Court in 2014, Court of Appeals Judge Robin Wynne was identified on the ballot as “Court of Appeals Judge Robin Wynne.”

Untitled

And this from California under Election Code § 13107 (sample ballot from here)

UntitledIn Michigan several statutes depending on court type allow for the word “Incumbent Position” balloting, among them MCLS § 168.409b (Court of Appeals), § 168.424a (Circuit), § 168.426d (Municipal Courts of Record), § 168.433 (Probate), and § 168.467b (District). (UPDATE: A reader also points to this constitutional provision that “There shall be printed upon the ballot under the name of each incumbent justice or judge who is a candidate for nomination or election to the same office the designation of that office.”) The result is that a judge runs with their current office below their name, as for example from this sample ballot.

Ballot_2008_back[1]

Update 1/30/2017

Georgia law (21-2-285.1) provides that “The incumbency of a candidate seeking election for the public office he or she then holds shall be indicated on the ballot.” An example from this sample ballot.

Minnesota Statutes 204B.36(5) provides that “If a chief justice, associate justice, or judge is a candidate to succeed again, the word “incumbent” shall be printed after that judge’s name as a candidate.” An example from this sample ballot.

election2014_RamseySampleBallot_p2[1]

Update 1/30/2017

Oregon law (ORS 254.125) provides that “The word “incumbent” shall follow the name of each candidate for the Supreme Court, Court of Appeals, Oregon Tax Court or circuit court who is designated the incumbent by the Secretary of State under ORS 254.085. ” An example from this sample ballot.

 

As for Minnesota, HB 676 and SB 1091 of 2015 would repeal this provision.

In the last two decades there have been dozens of attempts to remove the provision, none successful and most never advancing out of committee. Often the proposal was attached to some other provision, such as an effort to move to merit/commission selection or as part of a larger package of changes to the election laws. One interesting iteration that appeared only in 2011 provided that if the incumbent designation was repealed, the state’s mandatory judicial retirement age would be increased (discussed here).

Details below the fold.

Continue reading Bills in Minnesota would end use of incumbent designation on ballots for judges seeking reelection; a look at states that use such designations

Arizona: new plan to stack supreme court introduced and clears committee in hours; over a dozen efforts to change supreme court composition in last decade

A plan to expand the Arizona Supreme Court from 5 to 7 members was added at the last minute to a bill in the House Judiciary Committee yesterday. HB 2076 as introduced had nothing to do with the state’s supreme court. An amendment to that bill however deleted the bill’s contents and replaced it with an expansion of the Supreme Court from 5 to 7 members. It was approved on a 4-2 party-line vote.

This isn’t the first time an effort with little to no notice has been made to expand the Arizona Supreme Court. In 2013 it was the Senate Judiciary Committee that tried to advance such a proposal that was ultimately rejected when the Chief Justice of the Supreme Court herself appeared in the committee and explained the Supreme Court was handling its case disposition time handily. The main sponsor countered that “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.”

This marks over a dozen instances in the last several years of members of the legislature seeking to increase, or in some cases reduce, the size of their state supreme court/court of last resort. Details below the fold.

Continue reading Arizona: new plan to stack supreme court introduced and clears committee in hours; over a dozen efforts to change supreme court composition in last decade

Michigan Legislative Year in Review

Law

HB 5785 Authorizes a court to impose on a guilty defendant any cost “reasonably related” to the court’s actual costs. Defines “reasonably related” to include salaries and benefits for relevant court personnel, goods and services necessary for the operation of the court, and necessary expenses for the operation and maintenance of court buildings and facilities. Requires courts that imposed those costs to report annually to the State Court Administrative Office, which would have to report annually to the Governor and the Legislature.

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

North Carolina Senate budget changes way/structure courts can strike laws as unconstitutional; fourth state in 4 years to consider such an effort

North Carolina’s Senate budget passed early Saturday morning included a myriad of changes to statutes, but one item in particular stands out as a Gavel to Gavel reader pointed out to me via email. The Senate-approved budget changes the way the state’s trial courts can strike down a law as unconstitutional, this apparently in anger at a recent decision by a trial judge striking down a 2013 NC law that would strip teachers of tenure in exchange for raises.

Under Section 18B.16.(a) of SB 744 as approved by the Senate any challenge to a statute on constitutional grounds would have to be tried or determined by panels of 3 Superior Court judges. The bill is based on a 2003 law that allows for challenges of redistricting lines to be heard by a three-judge panel of the Superior Court of Wake County. This new version, however, goes beyond Wake County and requires that the three judge panel be selected by the Chief Justice from certain parts of the state (1 from First or Second Judicial Division, 1 from Seventh or Eighth, 1 from Third, Fourth, Fifth, or Sixth). Media coverage of the proposal can be found here.

As I noted when this came up in the context of Oklahoma, no state provides for three-judge panels to address the issue of striking ANY law as unconstitutional; where they do exist they usually are created to address a particular, limited subject such as redistricting (NC & WI) or school funding (KS). My review of those laws is here.

North Carolina is now the fourth state in 4 years to try to change the ways judges can strike down state laws or rule against the legislature.

  1. Oklahoma (2014)- HB 2686 would require a challenge to the constitutionality of any state statute be heard by a panel of the state’s main trial court (District). The panel would be made of “at least three district judges”: the original district judge assigned and “additional judges assigned randomly” to the case. The House approved the bill 55-33 in March 2014 but the Senate Judiciary Committee rejected it in April.
  2. Michigan (2013)- SB 652 began with anger by the legislature over decisions by the state’s Court of Claims (a specially designated judge of the Ingham County Circuit Court, where the capital is located) over Michigan’s emergency manager and right-to-work laws. Under SB 652 as enacted in the constitutionally minimum amount of time the Court of Claims is no longer an Ingham County Circuit Court Judge but 4 judges of the state’s Court of Appeals chosen by the Chief Justice. Details here and here.
  3. Wisconsin (2013/2014)- As introduced, AB 161 provided that a trial judge/court could declare a law unconstitutional but any order by the trial court prohibiting enforcement was automatically stayed and the law allowed to remain in effect if the state filed a petition for interlocutory review was filed within ten days after the entry of the order. It derived from a case in which a Dane County judge struck down a state law (Act 10) the weakened collective bargaining in the state. What was eventually enacted provided that “If a circuit court or a court of appeals enters an injunction, a restraining order, or any other final or interlocutory order suspending or restraining the enforcement of any statute of this state, the injunction, restraining order, or other final or interlocutory order is immediately appealable as a matter of right.”
  4. Oklahoma (2012)- SJR 84 was a constitutional amendment that would have stripped the state’s Supreme Court of the power to strike down any law passed by the legislature as unconstitutional. Instead, the legislature itself would create an “Ad Hoc Court of Constitutional Review” in such cases. It was filed in the Senate Judiciary Committee but proceeded no further.
  5. Wisconsin (2011)- angry that challenges to state laws were being heard and struck down by judges of Dane County, the Wisconsin legislature enacted SB 117. Under it, actions in which state government is the sole party may be filed in any county in the state. Appeals must be heard in a Court of Appeals district  other than the one in which the case was filed. Moreover, the appellant (the state, in cases where a law is struck down at the trial level) would be allowed to pick the Court of Appeals district they want the appeal heard in.

 

 

 

Michigan may get a tax court; Georgia and Louisiana legislatures have debated subject in last few years

For the third time in three years a state is considering creation of a tax court. According to this report in the Detroit News

a draft of reforms being circulated by the Michigan Department of Treasury…would eliminate the state Tax Tribunal that handles assessment appeals from property owners unsatisfied with rulings from local boards. The state wants to replace the tribunal with a Michigan Tax Court whose judges and magistrates would have more experience and higher pay.

It is unclear if this would be a administrative “court” within the executive branch or a court within the judicial branch. If a judicial branch court, Michigan would join 5 other states with similar provisions. Louisiana debated the creation of just such a court in 2013. Georgia in 2011 debated this too, ultimately opting for an autonomous division within an executive branch agency rather than a judicial branch court.

Michigan Legislative Year in Review: making the Court of Appeals the Court of Claims; court funding lawsuits

NOTE: the Michigan legislature remains in session until effectively January 2014. Therefore, additional activity may happen between now and then.

Law

HB 4704 Provides chief judge of a court funded by a county has standing to bring suit in the Court of Appeals against a legislative body or chief administrative office of that county concerning a general appropriations act, including any challenge to serviceable levels of funding for that court or the administration, execution, and enforcement of a general appropriations act as it relates to the court. Provides before the chief judge brings a suit a mediator would have to certify in writing that the parties were unable to resolve the issues by mediation.

SB 652 Revises state’s court of claims. Ends practice where Court of Claims is a judge of the 30th Judicial Circuit. Provides Court of Claims to consist of 4 Court of Appeals judges from at least two Court of Appeals districts chosen by the Supreme Court. Provides Court of Appeals clerk to serve as Clerk of the Court of Claims.