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.
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.
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.
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.
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.
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.
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.
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 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.
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.