Nevada Legislative Year in Review: compensation commission for judges & other officials

Constitutional Amendment

AJR 10 Creates Citizens’ Commission on Salaries for Certain Elected Officers to set salaries for Supreme Court, Court of Appeals, District Courts, and other state and local officials. All seven members to be appointed to the commission by the governor. Must be re-approved by 2017/2018 legislature before being sent to ballot.

Law

AB 66 Requires justice of the peace in township over 100,000 within a county with a population over 100,000 be an attorney. Increases civil jurisdiction of justice courts to $15,000 (all civil claims) and $10,000 (small claims).

AB 68 Expands Commission on Judicial Discipline’s power to include a person who is a former justice, judge, justice of the peace or other officer of the Judicial Branch who presides over judicial proceedings if the conduct at issue occurred while the person was serving in any such position. Requires that any complaint or action filed in connection with any proceeding of the Commission be filed in the Supreme Court. Requires the Supreme Court to appoint two justices of the peace and two municipal judges to sit on the Commission for formal, public proceedings against a justice of the peace or a municipal judge, respectively. Requires that the existence of a proceeding of the Commission remain confidential prior to determination that a reasonable probability of grounds for disciplinary action against a judge exists and the special counsel files a formal statement of charges. (Currently only the proceedings themselves are confidential). Revises information Commission is required to disclose if a witness is prosecuted for perjury committed during the course of a proceeding before the Commission. Requires any minutes of Commission sessions remain confidential.

AB 69 Revises provisions governing the recycling of paper and paper products by courts; revises provisions governing the duties of court clerks and justices of the peace in relation to the fees charged by those officials; revises provisions governing the collection and reporting of certain statistical information; changes the term “county clerk” to “clerk of the court” in certain statutes; removes provisions requiring courts provide the Court Administrator certain orders relating to bail forfeitures; repeals provisions governing an offer of judgment; repeals the requirement that the Nevada Supreme Court decide an appeal from judgment imposing the death penalty within a certain period; repeals provisions governing the selection of panels of jurors by boards of county commissioners; revises various other provisions relating to court administration.

AB 160 Provides that justice courts and municipal courts may be held outside their township/precinct/city under specific circumstances.

AB 435 Creates 11th Judicial District.

SB 5 Provides unopposed District Judges need not have their names placed on ballots.

SB 69 Modifies Judicial Retirement Plan. Allows retired judge to come back into service as senior judge within 90 days of retirement (currently must wait 6 months). Changes minimum age requirement for retired members to return as senior judges to a requirement that they (1) be receiving a benefit that is not actuarially reduced; or (2) a benefit that is actuarially reduced but the judge or justice has reached the required age at which they could have retired with a benefit that was not actuarially reduced. Also authorizes a retired justice or judge who is a member of the Public Employees’ Retirement System and who accepts employment as a senior judge to continue to receive allowances under the system for the duration of that employment.

SB 197 Prohibits filing false liens/encumbrances on judges or other public official.

 

With North Carolina going back to partisan races for Court of Appeals, other states looking at similar moves

With North Carolina moving its Court of Appeals races from nonpartisan back to partisan, I thought I’d take a moment to examine what other states with nonpartisan appellate races have seen similar efforts in recent years.

Arkansas: The state had partisan elections until a 2000 constitutional amendment (Amendment 80) rewrote the state’s entire judiciary article. Section 18 of the new judiciary article requires nonpartisan elections.

Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office.

HJR 1015 of 2015 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Georgia: The state in 1983 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Art. VI, Sec. VII, Para. I)

All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.

HR 855 of 2005 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Idaho: The state has made use of nonpartisan elections for the Supreme Court since at least 1970 (I.C. 34-905).

There shall be a single nonpartisan ballot for the election of justices of the supreme court and district judges.

There has been no attempt to alter this provision in the last two decades.

Kentucky: The state in 1975 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Sec. 117)

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.

There has been no attempt to alter this provision in the last two decades.

Minnesota: State law mandates that those seeking a seat on the state’s appellate courts run on a nonpartisan basis (Minn. Stat. 204B.06(6))

Each justice of the Supreme Court and each Court of Appeals and district court judge is deemed to hold a separate nonpartisan office.

There has been no attempt to change this from nonpartisan to partisan, although several bills were introduced to change the nonpartisan races to gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Mississippi: The state made use of partisan elections until the adoption of the Nonpartisan Judicial Election Act in 1994. MS Code 23-15-976 specifies that

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

Nearly 3 dozen attempts have been made to repeal the Nonpartisan Judicial Election Act in its entirety or at least with respect to the appellate courts and revert the law back to what it was prior to 1994 bringing a return to partisan elections. None have advanced out of committee.

Montana: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (MT Code 13-14-111)

Except as otherwise provided in this chapter, candidates for nonpartisan offices, including judicial offices, must be nominated and elected according to the provisions of this title.

SB 393 of 2005, D. 1760 of 2009, and HB 521 of 2011 would have made the races for Supreme Court partisan. The 2005 bill was killed in committee and the 2009 version only reached the drafting stage. The 2011 version was approved on a 12-6 vote of the House State Administration Committee but was killed by the full House on a 45-54 procedural vote not to advance the bill beyond the 2nd Reading calendar.

Nevada: State law mandates that those seeking a seat on the state’s Supreme Court or its new Court of Appeals run on a nonpartisan basis (N.R.S. 293.195)

Judicial offices…are hereby designated nonpartisan offices.

There has been no attempt to change this from nonpartisan to partisan.

North Dakota: State law prohibits any reference to party on ballots for the state’s Supreme Court (N.D. Cent. Code 16.1-11-08)

No reference may be made to a party ballot or to the party affiliation of a candidate in a petition and affidavit filed by or on behalf of a candidate for nomination in the primary election to an elective county office, the office of judge of the supreme court, judge of the district court, or superintendent of public instruction.

There has been no attempt to change this from nonpartisan to partisan.

Oregon: State law defines races for the Supreme Court and Court of Appeals as nonpartisan (O.R.S. 254.005(8))

“Nonpartisan office” means the office of judge of the Supreme Court, Court of Appeals….

There has been no attempt to change this from nonpartisan to partisan.

Washington: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (RCW 29A.52.231)

The offices of superintendent of public instruction, justice of the supreme court, judge of the court of appeals, judge of the superior court, and judge of the district court shall be nonpartisan and the candidates therefor shall be nominated and elected as such.

Two bills to convert races for both appellate courts (HB 2661 of 2011) or just the Supreme Court (HB 1051 of 2015) were never heard in committee. A third proposal (HB 2150 of 2007) would have replaced nonpartisan elections with gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Wisconsin: State law defines judicial races as occurring during the nonpartisan Spring Elections (Wis. Stat. 5.02(21))

“Spring election” means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.

There has been no attempt to change this from nonpartisan to partisan.

2015 efforts to changing civil jurisdiction thresholds: Nevada and Washington enact

Last year around this time I noted a trend towards increasing civil jurisdiction thresholds for some limited jurisdiction courts.

Most states have at least 2 levels of trial court, with a civil jurisdiction amount dividing them. For example a $1,000 civil case may be filed in the limited jurisdiction court, but a $100,000 case may only be permitted in the general jurisdiction court. Changes to this threshold can change the way courts are managed or function as caseloads and revenues rise/fall as a result.

This year saw 5 efforts to raise these limits, including 2 states where changes were enacted.

Maryland: District Courts have exclusive original civil jurisdiction in specified civil cases up to $30,000 (Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 4-401). The threshold was $25,000 but was increased in 2007 (HB 1109). No other efforts to increase the threshold were made in the past decade until 2015. HB 461 would have increased the jurisdiction of the District Court to $50,000 while HB 719 would have raised the jurisdiction to $50,000 but only for first-party motor vehicle insurance benefits for uninsured motorist coverage. Both bills were withdrawn by their respective authors.

Nevada: Nevada’s Justice Courts had jurisdiction in civil cases up to $10,000 since a 2003 law (AB 100) increased the threshold from $7,500 (Nev. Rev. Stat. Ann. § 4.370(1)(a)). Since then there have been no efforts to change the provisions until 2015. AB 66 as enacted now increases that threshold from $10,000 to $15,000 effective January 1, 2017.

South Carolina: Magistrate Court is effectively the state’s small claims court, with a concurrent jurisdiction with the Circuit Court up to only $7,500 (S.C. Code Ann. § 22-3-10). Nearly a dozen efforts had been made in the past decade and 2015 was no exception. SB 53 would have increased the jurisdiction to $10,000 and required mediation for cases below $5,000. SB 325 would have simply provided an increase from $7,500 to $10,000. Neither bill advanced out of committee.

New York: There are five types of limited jurisdiction courts with civil jurisdiction, each with its own threshold:

  • $25,000 for NYC Civil Court and County Courts (NY CLS NYC Civil Ct Act § 201 & NY CLS Jud § 190(1))
  • $15,000 for City and District Courts (NY CLS UCCA § 202 & NY CLS UDCA § 201)
  • $3,000 for Town and Village Courts (NY CLSUJCA § 201(a))

AB 1935 would have raised the jurisdiction of the Town and Village Courts to $5,000. As all prior efforts introduced in the last decade, it never advanced out of committee.

Washington: The state’s District Courts had civil jurisdiction in cases up to $75,000 (Rev. Code Wash. (ARCW) § 3.66.020). The threshold had previously been $50,000, but that was increased in 2008 (HB 2557). A prior effort to increase to $75,000 had previously died in committee without a hearing (SB 5322 of 2005). This year saw two efforts in increase the limit, with one reaching enactment.

  • SB 5125 raises the limit from $75,000 to $100,000. It met with unanimous approval in House and Senate committees and on the floors of each chamber and was signed into law by the governor with an effective date of July 24, 2015.
  • HB 1248 would have raised the limit from $75,000 to $100,000 but also adjusted the threshold for mandatory arbitration from $15,000 to $75,000 in the Senate amended version. The bill was approved 78-19 in the House and was approved as amended by the Senate Law & Justice Committee but died on the Senate floor.

States Expand Protections Against False Liens for Public Officials

During this legislative session, seven states passed measures that expand protections against the filing of false liens—a legal claim to property for unpaid debt—for public officials, and one other state is still considering such a measure. Over the past 20 years, an increasing number of individuals have taken to filing false liens against public officials, a form of harassment that the FBI has dubbed “paper terrorism.” The states have responded by allowing clerks and filing offices to reject such claims, as recommended by the National Association of Secretaries of State, and by increasing civil and criminal penalties.

In addition to the seven states that passed measures this year, there are a number of other states with existing protections. In 2012, this blog covered the efforts of six states (here and here) to pass such measures, three of which were ultimately successful. Similarly, there were eight states in 2013, and five states in 2014, that successfully passed such legislation. The following is a review of efforts in the states to protect judges and other public officials from false liens during the 2015 legislative session.

Passed
Indiana HB 1371 amends existing law prohibiting the filing of false liens to include those who do not currently hold office but have in the preceding four years and provides that liens will be voided if a suit has not commenced within 30 days.

Maryland SB 77 provides that if the filing office believes a claim to be false, they must notify the subject of the filing, state their reasons for believing it is false, and terminate it in 45 days unless the claimant files an affidavit under the penalties of perjury that provides for the claim’s validity. If the filing office still believes the claim to be false after receiving the affidavit, the office may terminate the claim in 45 days unless the claimant petitions for a judicial determination of its validity. (Note: The Governor vetoed HB 312 as duplicative).

Nevada SB 197 amends existing law to prohibit and classify as a category B felony the filing of a false lien or other encumbrance “against the real or personal property of a public officer, candidate for public office, public employee, or participant in an official proceeding, or a member of [their] immediate family” based on the performance of or failure to perform the duties relating to their office or employment. The subject of the fraudulent claim is permitted to bring civil suit against the claimant under this statute.

New Jersey AB 2481 authorizes the filing office to reject a claim it reasonably believes to be materially false or fraudulent because it is (1) filed against a current or former officer or employee of any federal, state, county, local, or other government unit; (2) relates to their performance or failure to perform the duties relating to their office or employment; and (3) “for which the filer does not hold a properly executed security agreement or judgment from a court of competent jurisdiction.” The statute allows the filing office to reject claims filed by incarcerated individuals. The official or employee against whom the claim is filed is also authorized to bring civil suit, and the court is authorized to grant awards up to $2000 or damages incurred and enjoin the defendant from filing any future liens, encumbrances, or court actions without the approval of the court. (Note: The existing statute already included the provision that the filing of a false lien against a public official or employee is a second degree crime).

North Carolina SB 83 amends existing law concerning the filing of false liens or encumbrances against the real or personal property of a public officer, public employee, or their immediate family. The measure authorizes the register of deeds or clerk of court to refuse to file a claim that they reasonably suspect to be fraudulent. The measure also provides an appeals process for denied filings.

North Dakota HB 1307 amends existing law to classify the threatening of a public servant, including the filing of false liens, as a class A misdemeanor for a first offense, and a class C felony for second and subsequent offenses.

Pending
California AB 1267 expands existing protections against false liens to apply to lawsuits and other encumbrances against public officials with the intent to harass. It also provides that the subject of the fraudulent claim can request an order directing the claimant to appear in court to defend the claim. AB 1267 was passed by both the House and Senate, but is still awaiting the Governor’s approval.

Pennsylvania SB 212 classifies the filing of a false lien, in addition to any other unlawful action that attempts to influence, intimidate, or hinder a public official or law enforcement officer from performing their duties, as a misdemeanor of the second degree. This bill is still pending in committee.

Nevada: binding judicial compensation commission clears Assembly 27-15; commission would also set salaries for other officials

I mentioned two weeks ago a constitutional amendment being debated in Nevada that was effectively a copy of a bill approved by Arkansas votes in November 2014 to create a binding compensation commission for judges and other state officials with no ability of the legislature to override the commission.

The Nevada bill (AJR 10) has now cleared the Nevada Assembly on a 27-15 vote, but with one key difference between it and its Arkansas counterpart. The commission will now include appointees named by the Senate and Assembly minority leaders.

Original As amended
Governor 2 2
Senate majority leader 2 1
Senate minority leader 0 1
Assembly majority leader 2 1
Assembly minority leader 0 1
Chief Justice 1 1

AJR 10 now goes to the Nevada Senate. If approved by a majority of that body it must be re-approved by the 2017/2018 legislature before appearing on the ballot.

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.

Nevada bill eliminates elections for District Court judges; lets lower chamber of legislature pick all future judges

This session has seen two efforts to outright end judicial elections (partisan, nonpartisan, or yes/no retention) and provide instead for reappointment/reconfirmation: Oregon appellate judges (discussed here) and Maryland trial judges (discussed here). There is now a third such push in Nevada that focuses on trial judges, but in a unique fashion.

First, some background.

Nevada’s District Court is the state’s general jurisdiction court. The state’s constitution requires the judges of that court be elected for full 6 year terms (Art. 6, Sec. 5) and a separate state law makes those elections nonpartisan (NRS 293.195). Interim vacancies are filled by the Governor through a Commission on Judicial Selection that submits a list of three names for selection (Art. 6, Sec. 15).

AJR 9, as introduced, modifies the Commission on Judicial Selection system to apply to full and interim terms of the District Court. First, it extends the District Court judge’s term in office to 8 years. Second, it eliminates the Governor’s role entirely. Third, when any vacancy occurs the Commission would submit a list of names to the legislature’s lower chamber (Assembly) for selection. Given that the legislature does not meet in even-numbered years, the Assembly would have the power to convene itself out-of-session to handle the judicial appointments. Fourth, when judges completed their 8 year terms, they would not have to face voters; instead they would be required to resubmit their names to the Commission for review. The judges would not be guaranteed to be among the three names submitted by the Commission to the Assembly and the Assembly would not be required to automatically reappoint them.

AJR 9 has been assigned to the Assembly Committee on Legislative Operations and Elections.