New Mexico: plan to end partisan judicial elections for top courts clears key Senate committee

The plan to end partisan judicial elections for New Mexico’s top courts (discussed here) cleared the Senate Rules Committee yesterday on a 10-1 vote.

SJR 10 as amended would amend the state constitution’s requirement that races for the New Mexico’s top courts (Supreme, Court of Appeals, District, and Metropolitan) be partisan and replace with the word nonpartisan.

SJR 10 now goes to the Senate Judiciary Committee.

 

New Mexico: Hearing today on ending partisan elections for state’s top courts

New Mexico uses a unique system of judicial selection for the state’s top courts (Supreme, Court of Appeals, District, and Metropolitan) that includes partisan elections. Under a proposal set for a hearing today in the Senate Rules Committee, the partisan portion would change to nonpartisan.

New Mexico uses a three-step process for these 4 courts under its constitution (Art. VI, Sec. 33)

  1. For initial terms all judicial vacancies are filled by the governor from a list of candidates recommended by a judicial nominating commission.
  2. The political parties then conduct primaries to pick candidates to face off at the next general election. The governor’s appointee is not guaranteed to win that primary.
  3. Whoever wins the partisan general election can obtain additional terms through yes/no retention elections, but there they must obtain at least a 57% yes vote (the original 1988 constitutional provision made it a simple majority; a 1994 amendment raised it).

SJR 10 as introduced would change the second step and require it be a nonpartisan contest.

Each justice of the supreme court, judge of the court of appeals, district judge or metropolitan court judge shall have been elected to that position in a partisan nonpartisan election process as provided by law prior to being eligible for a nonpartisan retention election.

A separate provision would ensure that any judge in office on January 1 after the constitutional amendment was approved would not be impacted by this change.

If a majority of the Senate and House approve the amendment, it would go on to the ballot in 2018.

New Mexico debates a “benchmark” of at least 3% of state general fund for state judiciary, South Carolina a guaranteed 1%

Should states guarantee or “benchmark” a minimum amount of general funds go to their judiciaries? As I discussed here, the topic has been debated since at least the 1970s as a way to keep court funding out of the political arena and help provide a (more) stable source of revenue for the branch. The debate is now being renewed in modified forms in New Mexico and South Carolina in 2017.

The New Mexico House Judiciary committee voted 10-3 yesterday to approve HB 81 as amended. Rather than a guarantee the bill as introduced “benchmarked” at least 3% of the state’s general fund after various payments were made. The amended version removed the various other payments and now reads in operative part.

Appropriations to the judiciary shall be benchmarked at not less than three percent of the recurring general fund appropriation for the next fiscal year. The provisions of this act apply to fiscal year 2018 and succeeding fiscal years.

HB 81 now goes to the House Appropriations and Finance Committee.

In South Carolina for the 4th year in a row a member of the Senate has proposed a constitutional amendment to provide 1% of general fund for the judiciary, this year as SJR 69 of 2017.

The General Assembly, in the annual general appropriations act, shall appropriate, out of the estimated revenue of the general fund for the fiscal year for which the appropriations are made, to the Judicial Department an amount equal to one percent of the general fund revenue of the latest completed fiscal year.

Previous versions (SJR 72 of 2013/2014 and SJR 317 of 2015/2016) failed to advance out of committee.

NC: So how many other states/courts elect their appellate judges in a partisan manner? It’s complicated.

Amid the debate on SB 4 today and the decision to switch North Carolina’s Supreme Court and Court of Appeals from nonpartisan to partisan races, there’s been a good amount of discussion of how many other states and appellate courts have partisan elections. Numbers have ranged widely. The reason for this is fairly straight forward in that for many states it is not a straight forward answer.

There are 8 states with 9 courts in which at one point or another justices of the supreme court/court of last resort show up with a party label somehow. It was 9 states with 10 courts until 2015 when West Virginia ended partisan races for their Supreme Court of Appeals.

  1. Alabama: partisan primaries and partisan general elections.
  2. Illinois: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Illinois Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 60% “yes to retain” vote.
  3. Louisiana: The state uses a “blanket primary” in which all candidates appear with party labels on the primary ballot. The two top votegetters compete in the general election. Thus in the general election, you could have two Republicans vying against each other for the seat, as occurred most recently in 2016 when Republican James “Jimmy” Genovese defeated fellow Republican Marilyn Castle for the 3rd Supreme Court District (Louisiana elects their justices by district, not statewide).
  4. Michigan: candidates for Supreme Court are nominated by political parties but the actual ballot in November is nonpartisan (i.e. no party labels).
  5. New Mexico: very complicated. When a vacancy occurs on the New Mexico Supreme Court, it is initially filled via merit selection (nominating commission sends list of names to governor, governor picks). The newly appointed justice must then run in a partisan primary and partisan general election but only for the first election. If a person does get elected to the New Mexico Supreme Court, the next time they are up they are put into a yes/no retention election, however to stay in office they need to get a 57% “yes to retain” vote.
  6. Ohio: Partisan primaries, but nonpartisan general elections.
  7. Pennsylvania: partisan primaries, partisan general elections but only for the first election. If a person does get elected to the Pennsylvania Supreme Court, the next time they are up they are put into a yes/no retention election (50% “yes to retain” to remain in office).
  8. Texas: Everything is bigger in Texas, including their appellate courts. Texas has two “courts of last resort”: the Supreme Court for civil matters and the Court of Criminal Appeals. Both courts use partisan primaries and partisan general elections.

Election 2016: Results and Implications for State Courts

Time to review the 4 ballot items from last night I was focused in terms of affecting the courts.

Mandatory judicial retirement ages

Oregon’s attempt to repeal that state’s mandatory judicial retirement age of 75 failed with only a 37% yes vote. That number is consistent with other states that attempted to raise or remove their ages. Those efforts only received, at best, 40% (New York 2013) and at worst 22% (Hawaii in 2014).

The other attempt was in Pennsylvania. There the proposal on the ballot would have set the mandatory judicial retirement age at 75 but pointedly did not include language that this was an increase from the current 70. The language, which appears to have been unique to Pennsylvania, resulted in the proposal squeaking to victory with 50.88%.

As I’ve noted, this issue is not going away as more and more states look to put in such increases or repeals. The trend remains, however, one in which legislators are persuaded to put the items on the ballots, but voters when confronted with language related to increases or repeals are inclined to reject such efforts.

Judicial Disciplinary Commissions

The Georgia legislature’s attempt to take control over the membership of the Judicial Qualifications Commission was approved with 62% of the vote. This move comes after similar efforts in Tennessee approved in 2010 that give the legislature the power to name 6 out of 16 members of that state’s judicial disciplinary body (Board of Judicial Conduct).

That said, it is unclear whether legislators in other states will have an interest in changes such as those in Georgia and Tennessee, especially given that in 24 states changes to membership would require either a constitution amendment and in another 10 the membership is set by the judiciary, not the legislature.

Clerks of Court Terms

Arkansas’ amendment to increase the terms in office for county officials from 2 years to 4, including Clerks of the Circuit Court, was approved. This leaves only certain counties in North Dakota with clerks of general jurisdiction courts elected to 2-year terms. As such, last night’s vote to increase terms isn’t so much the start of a trend but the end (or near end) of one.

Bail Reform

One additional item not covered but that readers have shown an interest in that relates to the courts is New Mexico’s bail reform constitutional amendment (Amendment 1) that was approved with 87% of the vote. The plan allows judges to deny bail to defendants considered exceptionally dangerous and to grant  pretrial release to those who aren’t considered a threat but remain in jail because they can’t afford bail.

In light of increased interest in reforms to fees, fines, and bail practices in state courts, it is almost certain that some activity in this arena will take place in state legislatures, if not as a constitutional amendment then as legislation focused on pretrial release and risk assessment.

First Washington, now New Mexico debates requiring supreme court justices be elected by district

I’ve mentioned recently the series of efforts in the Washington state senate to require that state’s supreme court justices to run from districts. Now comes a similar plan for New Mexico. Under SJR 15 of 2016

The state shall be divided into at least five districts from which justices shall be elected, with one justice elected from each district, as provided by law…A justice of the supreme court, at the time the justice is first appointed to fill a vacancy or elected to office, shall reside in the district from which the justice is appointed or elected as provided by law. The provisions of this 2016 amendment shall not apply to justices serving at the time this amendment is adopted or to justices elected at the general election in 2016.

This appears to mark the first time such a proposal has ever been filed.

As a reminder, only 6 states elect or reelect some or all of the members of their courts of last resort by district: Illinois, Kentucky, Louisiana, Maryland, Mississippi, and Nebraska (associate justices, chief justice reelected statewide).

SJR 15 has been assigned to the Senate Rules Committee.

New Mexico: constitutional amendment would move adult probation into the judicial branch; 2013 bill attempted similar move

Over the last several years there have been efforts, in particular those in Massachusetts (in 2011, discussed here) and New Jersey (most recently in 2013, discussed here), to move probation departments out of the judiciary and into the executive branch. Later today New Mexico’s House Government Committee will be hearing a plan to do the opposite.

HJR 14 as introduced would add a single sentence to the state constitution’s judiciary article (Article 6)

The judicial branch shall administer the adult probation services for the state, as provided by law.

Currently the adult probation is under the executive branch’s Corrections Department (N.M. Stat. Ann. § 9-3-3)

There is created in the executive branch the “corrections department”. The department shall be a cabinet department and consist of, but not be limited to, six divisions as follows…the adult probation and parole division.

This marks the third session in a row to discuss moving adult probation out of the executive branch.

  • In the 2011/2012 session the House asked for a study (House Memorial 12) of moving the adult probation and parole division into the judiciary. That study never occurred.
  • In the 2013/2014 session HB 572 would have moved adult probation only out of the Corrections Department and into the Administrative Office of the Courts. The bill failed to advance out of committee.