New Mexico Legislative Year in Review: pocket vetoes for Court Language Access Fund & AOC

Law

HB 487 Requires every municipality to enact an ordinance requiring assessed fees to be collected as court costs, outlines the fees to be collected upon conviction and the amount of each, details how the money collected can be used and deposited into a special fund. Balances available in the special fund in a municipality with a population less than 10,000 (currently 3,000) according to the most recent federal decennial census, which are not needed, may transfer them into the municipality’s general fund.

Approved

SM 89 Directs a study of the ramifications of the transfer of county employees to the magistrate courts to operate compliance programs.

Vetoed

HB 89 Creates Court Language Access Fund to provide court interpreters and to operate and staff the New Mexico Center for Language Access, etc. Pocket vetoed. No override attempted.

SB 106 Allows the administrative director of the courts to receive funds to carry out the duties of the office. Pocket vetoed. No override attempted.

New Mexico: Governor pocket vetoes bill approved by unanimous House & Senate to allow AOC Director to receive funds

New Mexico’s governor has killed via pocket veto a bill (SB 106) to allow the Director of the Administrative Office of the Courts to apply for and receive any public or private funds to carry out its programs, duties or services. The language is almost identical to that found in laws creating executive branch agencies, however most of those provide that such a reception is “with the governor’s approval.” SB 106 did not provide the governor a role in the AOC Director’s receiving funds.

Under New Mexico’s constitution the governor had until 20 days after the legislative session ended to take action (sign or veto) the bill, otherwise the bill died (pocket veto). That 20-day deadline passed on April 10 with no action on the part of the governor.

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

New Mexico Legislative Year in Review: judicial salary increases vetoed, Supreme Court later overturned in part

On ballot

SJR 16 (Constitutional Amendment) Repeals provision that “The date for filing a declaration of candidacy for retention of office shall be the same as that for filing a declaration of candidacy in a primary election.” Approved by voters on November 2014 ballot.

Vetoed

SB 84 Repeals July 2, 2014 sunset date for magistrate courts operations fund and extends $4 fee in certain cases for the fund until 2019.

SB 313 Authorizes total of 8% increases in judicial salaries. Line item vetoed. NM Supreme Court found 5% raise was not line item vetoed but 3% raise was vetoed in an opinion here (“the Governor did not veto any of the appropriation language or dollar amounts set forth in Section 4(B) which included the funds for a 5% raise”.)

Law

HB 33 Modifies Judicial Retirement Program. Suspends the COLA for FY15 and FY16. Requires all judges and their employers to make contributions. Raises age and service requirements for judges who became members.

HB 216 Modifies Magistrate Judges Retirement Program. Suspends the COLA for FY15 and FY16. Requires all judges and their employers to make contributions. Raises age and service requirements for judges who became members.

SB 38 Provides annual excess balance of funds in metropolitan court bond guarantee fund to be transferred to administrative office of the courts (currently all such funds go to traffic safety bureau of the department of transportation).

SB 160 Modifies Magistrate Judges Retirement Program. Suspends the COLA for FY15 and FY16. Requires all judges and their employers to make contributions. Raises age and service requirements for judges who became members.

Adopted

SJM 26 Requests Administrative Office of the Courts examine study equity in awarding child support and how child support payments are calculated.

 

 

Election 2014 winners and what they (could) mean for 2015 legislation

A look at the winners in last night’s election may help in predicting what will come out of the 2015 legislative sessions

Alabama Amendment 1 bans state courts from using international or foreign law. This is the 10th such ban in states, however the total number of efforts and their advancement in committee in the 2013 and 2014 sessions have diminished. It is unclear even if any similar bans are introduced whether they’ll make it out of committee in 2015.

Alabama Shelby County Local Amendment 1 requires the Judge of the Probate Court for the county must be an attorney. While similar bills have been proposed to require particular counties or all the judges in a state be attorneys (most states allow for at least some non-attorney judges) they often come to the problem that in many more rural counties there simply aren’t enough attorneys in the county to allow for such a requirement to work.

Arkansas Issue 3 provides (among other things) for the creation of salary commission to determine judicial and other salaries in the state. This commission stands alone among all others in the nation in that its determinations are not only binding (i.e. there is no need for additional legislative approval) they are unable to be overridden by the legislature as well. When similar proposals were introduced in Connecticut and New York, the legislatures balked at giving complete control over elected officials salaries without the legislature itself somehow being involved in either implementation/appropriation or even simply allowing them to override.

Hawaii Amendment 1 requires the state’s judicial selection commission release the names submitted to the governor or chief justice (for District Court seats) for selection to judicial office. Of the 18 states with such systems, now only 3 keep those names a secret after submission: Connecticut, South Dakota, and Vermont. It is unclear whether there will be any effort in these three states to move in Hawaii’s direction.

Nevada Question 1 authorizes the creation of intermediate appellate court (court of appeals). The implementing legislation has already previously been approved so the court will come into existence come January 1, 2015. The focus now turns to the 9 states without an intermediate appellate court, in particular West Virginia whose legislature has debated the creation of such a court for the better part of two decades.

New Mexico Amendment 3 now allows the legislature to set the deadline for judges to file paperwork seeking reelection as something other than the date for primary candidates. As I noted, New Mexico was the only state that required judges seeking retention to file so long prior to the date of election. Since this doesn’t apply to any other state, it isn’t clear this will have any impact in 2015.

Oregon Measure 87 now allows state judges to teach part time at public colleges/universities without running afoul of the state constitution’s no-dual-office or no-dual-salary provisions. Several other states have similar items, and there was a similar but not identical effort in Iowa several years ago (HB 2482 of 2010), but it isn’t clear if this approval will have an impact.

Tennessee Amendment 2 creates an appoint-confirm-retention election method for state’s appellate judges. This, coupled with a similar move away from merit selection/commission based appointments for the Kansas Court of Appeals in 2013 and pressure in other states to end these systems in favor of giving governors and legislators some/more/complete power with respect to judicial appointments is almost certain to reappear in the coming years.

Election 2014 Final Results: The winners and losers

The votes are in and the results from last night’s elections are below. Analysis of the results to follow later today.

Winners

  • Alabama Amendment 1 (72%): Prohibit state courts from using international or foreign law; prohibit state courts from giving full faith and credit to decisions from other states that reference international or foreign law
  • Alabama Shelby County Local Amendment 1 (79%): Judge of the Probate Court must be an attorney
  • Arkansas Issue 3 (53%): Creation of salary commission to determine judicial and other salaries
  • Hawaii Amendment 1 (82%): Require names submitted to governor for selection to judicial office be released
  • Nevada Question 1 (54%): Creation of intermediate appellate court (court of appeals)
  • New Mexico Amendment 3 (62%): Allow legislature to set deadline for judges to file paperwork seeking reelection
  • Oregon Measure 87 (57%) : Allow state judges to teach part time at public colleges/universities
  • Tennessee Amendment 2 (66%): Appoint-confirm-retention election method for state’s appellate judges

Losers

  • Florida Amendment 3 (48%): Allow governor to prospectively appoint judges to appellate courts — when the judge’s term is about to expire — before the vacancy occurs
  • Hawaii Amendment 3 (22%): Increase mandatory judicial retirement age from 70 to 80
  • Louisiana Amendment 5 (42%): Eliminate mandatory judicial retirement age

New Mexico Amendment 3: 17 out of 20 states that use retention elections have different filing deadlines for judges & others; few states put filing deadline for judges in state constitution

New Mexico voters in 1988 established the present electoral system for the highest courts in the state (supreme court, court of appeals, district, and metropolitan) that combines both merit/commission appointment AND partisan elections AND retention elections. (A subsequent amendment in 1994 set the threshold for retention at 57% “yes” votes).

That 1988 amendment included a provision that specified, in detail, when a judge seeking to be retained in office had to file the paperwork in order to do so.

The date for filing a declaration of candidacy for retention of office shall be the same as that for filing a declaration of candidacy in a primary election.

This direct linkage of the date to file for judicial retention as equal and the same as that for primaries is unique in New Mexico for two reasons.

  • First, of the 20 states that use some form of retention election, only 6 (New Mexico, plus Arizona, California, Colorado, Pennsylvania and Wyoming) put the filing deadline into the state’s constitution.
  • Second, of those 20 states, only two have the same direct link between the primary filing deadline and the judicial retention deadline as in New Mexico, but in both cases there are special reasons for why.
    • Montana links the primary filing deadline with retention election deadline because of its unique hybrid system for the state’s supreme court. If an incumbent justice is challenged, the contest proceeds as any other contested election. If the incumbent justice is the lone filer (i.e. uncontested), he or she nevertheless must face a yes/no retention election in November.
    • Tennessee’s retention elections occur on what amounts to primary day therefore the deadlines are linked for that reason. For example this year the retention race took place on August 5.

Details below the fold.

Continue reading New Mexico Amendment 3: 17 out of 20 states that use retention elections have different filing deadlines for judges & others; few states put filing deadline for judges in state constitution

Changing civil jurisdiction thresholds – Part 4

This fourth 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.

New Mexico to South Carolina below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 4

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 5

This fifth 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.

New Mexico to South Carolina below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 5

Special look at what will be on the November 2014 ballot affecting state courts

Publication link here.

There are 6 months until the November 2014 elections and the ballot will be full of items impacting the courts. This special edition reviews what will be and may be before voters in 26 short weeks.

Alabama

SB 4 of 2013, the American and Alabama Laws for Alabama Courts Amendment, will be the second time (Oklahoma 2010 was the first) voters will get to weigh in on banning state court use or reference to international or foreign law or court decisions. The Alabama version goes further, however, and not only bans use of foreign/international law in the state’s courts, but also refuses to grant full faith and credit to court decisions or orders issued in other states that use or reference foreign/international law.

HB 205 of 2013, a “local” constitutional amendment, is also on the ballot. It would require the Judge of Probate of Shelby County be an attorney. Because of the way the Alabama Constitution is structured, such a change has to take the form of a constitutional amendment that is voted on only by the residents of the affected county.

Arkansas

HJR 1009, the Elected Officials Ethics, Transparency and Financial Reform Amendment, is effectively three amendments in one. The first part restricts lobbying and lobbyist gifts for all elected officials, including judges. The second item would expand term limits for members of the legislature, allowing them to serve up to 16 years. The third part removes the legislature’s power to set salaries for elected officials, including Supreme Court, Court of Appeals, Circuit, and District judges (i.e. all but City Court judges), and transfers it to a salary commission called the Independent Citizens Commission. The Chief Justice would get to pick 1 member of the 7 member Commission. During its first meeting/session the Commission could increase (or decrease) salaries to any level they wished. Subsequent adjustments would be limited to increases/decreases of no more than 15%.

HJR 1009 also removes the guarantee that judicial salaries may not be diminished (expenses paid to judges will keep their protections). Moreover, it eliminates a provision that all Circuit Judges in the state receive a uniform salary. It also specifically provides that salaries to judges and others be paid monthly.

Florida

SJR 1188 addresses whether the incoming or outgoing governor gets to fill appellate vacancies that occur on the same day as the transfer of the governorship. SJR 1188 opts for the outgoing, allowing for “prospective appointments” via the state’s merit selection system. Critics argue this is an effort to “pack” the Florida Supreme Court. The only 3 justices appointed by a Democratic governor are all being forced out of office due to the state’s mandatory judicial retirement age in 2019. There is the possibility Republican Governor Rick Scott, if re-elected, would be able to appoint all their replacements as he was leaving office. SJR 1188 has to receive the approval of 60% of those voting on the subject.

Hawaii

HB 420 requires the state’s merit selection commission (the Judicial Selection Commission) to publicly disclose its list of nominees for appointment to the office of the Chief Justice, Supreme Court, Intermediate Appellate Court, Circuit Courts, or District Courts concurrently with its presentation of that list to the Governor or the Chief Justice (in Hawaii, the Chief Justice selects District Court judges).

SB 886 will be the third time in the last decade Hawaii voters contend with the issue of judicial retirement. SB 886 would increase the constitutionally established mandatory retirement age for justices and judges from 70 to 80 years of age. The last two attempts both failed (for a full history of the earlier attempts, click here).

Note: Hawaii requires that the measures receive the approval of a majority of those voting in the election, thereby making a non-vote on these two ballot items effectively a no vote. This resulted in the failure of a ballot item in 2012 to allow Hawaii’s chief justice to recall retired judges back into temporary service.

Louisiana (highly likely)

HB 96 or SB 11 would remove the state’s mandatory judicial retirement age. Currently judges must retire at the end of the term during which they reach age 70. In 2013 the House was unable to muster the 2/3rds majority to get it on the ballot; that changed in 2014 when the House approved their version 72-19 (70 required). The Senate approved its version unanimously. The two differ only in terms of ballot language and as of now (May 2014) it appears SB 11 will be the one to advance onto the ballot.

5/8/14 update: Since putting this together another bill has advanced far enough along to warrant some attention. SB 216 is a constitutional amendment that would grant the state’s supreme court the power to move or reallocate a judicial vacancy when the seat is open. The supreme court would not need to ask the permission of the legislature for a reallocation/move but would need approval by the legislature and the governor to abolish the vacancy outright.

New Mexico

SJR 16 repeals a constitutional provision that says, “The date for filing a declaration of candidacy for retention of [judicial] office shall be the same as that for filing a declaration of candidacy in a primary election.” Instead, the legislature would be free to set the declaration of candidacy date for judicial retention elections as it saw fit.

Nevada

For the fourth time in 4 decades Nevada voters will get to decide on a constitutional amendment creating an intermediate appellate court called the Court of Appeals, this time as SJR 14. The prior efforts all lost by roughly the same 47-53 margins, including the latest attempt in 2010. Full details on the prior efforts can be found here.

Oregon

SJR 203 provides employment by the Oregon National Guard for the purpose of performing military service or employment by any public university for the purpose of teaching does not prevent the person from serving as a judge. The current constitution prohibits judges or any official for that matter from “hold[ing] more than one lucrative office at the same time” with only limited exceptions. This was originally passed as SJR 34 of 2013, however SJR 203 also includes provisions that allow school employees to serve in the state legislature.

Tennessee

Tennessee had a statutory-based merit selection system for the state’s appellate courts that lapsed; the governor continued it via executive order. SJR 2 would specifically put into the state constitution a quasi-federal system in which the governor appoints, the House and Senate confirm, and additional terms are by retention election. The current governor has vowed to retain a merit selection commission to recommend to him names for appointment.

Initiatives

This may be the first year in a decade where no item affecting the courts will make its way to the ballot via initiative. Of the 25 states that allow for the use of initiatives to get items on the ballot, only 2 even have items that have been submitted for possible signatures and it is not clear the proponents are actually trying to get signatures on a large scale.

Colorado: A group called “Clean Up the Courts” has two constitutional amendments currently circulating. Question #79 keeps the state’s judicial retention elections but requires that the judges receive a 2/3rds “yes” vote to be retained. Somewhat confusingly, Question #79 would apply to the judicial races on the November 4, 2014 general election ballot, the same election that would determine passage of Question #79 itself.

The second item, Question #94, would disband the state’s Commission on Judicial Discipline and transfer discipline of judges to the state’s Independent Ethics Commission. Discipline would also be expanded to include any act by a judge that “may be otherwise subject to appellate review.” The Independent Ethics Commission under Question #94 would be free to ignore any appellate rulings in a case at will.

Signatures on both Questions must be turned in by August 4, 2014. It is not clear whether or not signatures are being collected on either of these measures.

Missouri: Initiative 2014-032 would amend the state’s constitution and put in a provision for campaign contribution limits. Individuals would be limited to contributing a maximum of $2,600 to a candidate for state races and all judicial races.

Initiative 2014-047 and the nearly identical 2014-048 end merit selection in the state and require judges to be elected in partisan elections. Judicial candidates would be free to solicit, receive, and make any legal campaign contributions or expenditures that benefit their own campaigns. The initiatives decrease Supreme Court and Appellate Court judges’ terms from 12 years to 8 and increase the number of Supreme Court judges from 7 to 9.

It is not clear whether signatures were being collected on any of these measures prior to the deadline for filing on May 4.