NY: Trial judges would have 9 months to rule on motions/render verdicts or be forced out of office

Concerns over the timeliness of judicial opinions are nothing new, however one member of the New York Assembly wants a codified deadline coupled with a definitive punishment. Under AB 8408 judges considering motions or verdicts in non-jury trials would have 9 months from submission of the motion/case to render an opinion. Failure to meet the 9 month deadline would result in the clerk of the court reporting the delay to the state’s State Commission on Judicial Conduct. The Commission would be required to remove a judge from office if

  • the judge failed to meet the 9-month deadlines 5 times or more
  • took longer than 2 years to render a decision in any one case/motion

In addition if passed AB 8408 would give all judges 6 months from enactment to render decisions in all pending matters over the new 9-month deadline.

AB 8408 is currently before the Assembly Judiciary Committee.

Several state legislatures have empowered chief justices, supreme courts to handle natural disasters in recent years

In the aftermath of the September 11 attacks states began the process of dealing with the potential for courts to be shut down for days at a time. Hurricanes Katrina and Rita extended that potential closure to weeks. As a result in the last decade state legislatures have considered and enacted various bills to empower chief justices and supreme courts to make emergency declarations, allowing for the moving of courts and the tolling/suspension of some deadlines. (See this report I wrote in 2010 on all such statutes at the time).

In light of today’s “arctic vortex” shutting down most of the middle part of the country, below is a review of laws recently enacted on the subject, including North Dakota whose new 2013 law may be put to use for the first time today.

Connecticut HB 5539 (2010) Provides Chief Justice may take any action necessary in the event of a (as defined by statute) major disaster, emergency, civil preparedness emergency, disaster emergency, or a public health emergency, to ensure the continued efficient operation of the Supreme, Appellate and Superior Courts, the prompt disposition of cases and the proper administration of judicial business. Such necessary action may include: (1) Establishing alternative locations to conduct judicial business in the event that one or more court locations cannot be used, (2) suspending any judicial business that is deemed not essential by the Chief Justice, and (3) taking any other appropriate action necessary to ensure that essential judicial business is effectively handled by the courts.

Delaware SB 25 (2009) Provides for the operation of the courts in the event of an emergency due to natural or manmade causes that destroys or severely damages one or more court facilities or severely impacts the ability to staff the courts. Grants the Chief Justice the authority to declare a judicial emergency when there are emergency circumstances affecting one or more court facilities. Provides the order declaring a judicial emergency shall be limited to an initial duration of 30 days, but may be modified or extended for additional 30 day periods. Provides Chief Justice may also 1) Order that a court may operate in a county other than the county in which it is normally located. 2) Extend statutes of limitations and time periods prescribed by statute as well as those time limitations prescribed by court rule or administrative directive which the Chief Justice already has the authority to extend pursuant to his authority under Art. IV, Section 13 of the Delaware Constitution 3) Declare that specific proceedings not normally conducted by audiovisual device may be conducted in this manner. When such usage is not otherwise authorized by statute or court rule, an explanation of the compelling state interest in such usage shall be included in the order and 4) Take such other actions as the Chief Justice reasonably believes necessary for the continued operation of the courts during a judicial emergency. Provides that the host county shall be a proper venue for proceedings. Establishes provisions of this law shall preempt and supersede but not repeal any conflicting provisions of any other provision of law.

Georgia HB 1294 (2008) Allows Chief Justice to extend judicial emergencies beyond normal limitations if a public health emergency exists. Emergency declaration may remain in place for as long as the public health emergency exists.

Georgia HB 339 (2011) Revises the courts to which a challenge of a quarantine or vaccination order may be brought and manner of appealing orders concerning such challenges. Removes chief judge of the court of appeals’ power to declare judicial emergencies. Provides extensions of judicial emergencies by chief justice may only last as long as governor has declared state of emergency.

Hawaii HB 1983 (2006) Provides during a period of civil defense emergency proclaimed by the governor, the chief justice shall be authorized to order the suspension, tolling, extension, or granting of relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, in civil or criminal cases or administrative matters, in any judicial circuit affected by the governor’s proclamation. Provides chief justice shall determine the judicial circuits so affected.

New Hampshire SB 370 (2008) Grants the chief justice of the supreme court the power to enter orders to suspend, toll, or otherwise grant relief from time deadlines imposed by statutes and rules of procedure, for a 21-day period, in the event of a declared state of emergency. Permits the legislature to terminate such orders by concurrent resolution.

New York AB 6921 / SB 2849 (2009) Repeals most existing law related to judicial emergencies. Provides if a court location is unsafe or impractical for the holding of a trial court, then the Governor may by order appoint another place for the temporary holding of court after consulting with the Chief Judge or his or her designee if practicable. Provides for the Court of Appeals and for trial courts where the Governor has not acted, the relocation power would fall to the Chief Judge. Provides for intermediate appellate courts ( i.e. Appellate Division and Appellate Terms of Supreme Court), the relocation power would fall to the Presiding Justice of the Appellate Division after consulting with the Chief Judge or his or her designee. Provides all temporary relocations must be to the most proximate place that the term of court safely and practicably can preside, and should be consistent with applicable State and local disaster preparedness plans. Provides for trial courts, temporary relocations must be after consultation with relevant local leaders (e.g., county executives or mayors) if practicable. Provides for relocation orders would expire within 30 days but could be renewed for successive periods of 30 days each in like fashion as an original order. Provides regardless where a court temporarily sits, the court would continue to preside on behalf of its original jurisdiction (i.e. judicial department, judicial district, county, city, etc.) and the same substantive and procedural laws (e.g. governing venue, jury selection, papers and appeals) would apply as if the court were not relocated. Provides if a court is relocated temporarily outside its original jurisdiction, then facility costs would not be borne by the receiving locality but instead would become State costs charged to the Office of Court Administration. Memorializes the Chief Judge’s emergency relocation powers as provided above. Recognizes the continuing obligation of the State Disaster Preparedness Commission and local disaster preparedness commissions to insure that the disaster preparedness plans for which they are responsible take appropriate account of the provisions of this measure. (See also AB 10616 / SB 6900 of 2008)

North Carolina HB 1269 (2009) Allows courts to be closed for “catastrophic conditions” and defines the term. Allows Chief Justice to extend certain deadlines for “catastrophic conditions” and to issue any emergency directives necessary to ensure the continuing operation of essential trial or appellate court functions for 30 days, subject to 30 day renewals.

North Dakota HB 1073 (2013) Grants supreme court power to declare judicial emergencies. Allows for supreme court to toll statutes/deadlines. Does not allow for tolling or extension of deadlines or requirements imposed by U.S. or North Dakota constitution.

Oregon HB 2322 (2007) Provides Chief Justice may designate locations in the state for the sitting of circuit courts in the event of an emergency and that such locations designated need not be in the circuit court’s judicial district.

Oregon SB 270 (2009) Grants Chief Justice power to establish procedures for closing courts in emergencies and to establish standards for determining when courts are closed for purposes of ORCP 10, ORS 174.120 and other rules and laws that refer to periods of time when courts are closed.

South Dakota HB 1093 (2007) Allows Chief Justice to suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, whether in civil cases, criminal cases, administrative matters or any other legal proceedings as determined necessary.

Tennessee SB 3660 / HB 3060 (2008) Specifies that if an appellate court declares a disaster pursuant to applicable court rules, then all statutes of limitation and repose will be extended by the same number of days that the applicable filing deadlines are extended with deadlines to be extended only in county in which disaster is declared.

Texas HB 1861 (2009) Authorizes the Supreme Court of Texas to modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor and sets forth contingencies that provide for such action by another court or judge if a disaster prevents the supreme court from acting. Authorizes the local rules of administration that must be adopted by district and statutory county court judges in each county to provide for a coordinated response for the transaction of essential judicial functions in the event of a disaster. Includes as a purpose of the Texas Disaster Act of 1975 clarifying and strengthening the role of the judicial branch of state government in prevention of, preparation for, response to, and recovery from disasters.

Virginia HB 883 / SB 127 (2010) Sets out a procedure for the Supreme Court to follow in entering an order declaring a judicial emergency when there is a disaster as defined in the Commonwealth’s Emergency Services and Disaster Law. Permits the judicial emergency order to suspend, toll, extend, or otherwise grant relief from time limits or filing requirements in any court affected by the order and allows designation of a neighboring jurisdiction as proper venue for civil and criminal proceedings.

New York bills would require town/village court judges have at least an associate’s degree

30 states allow for at least some of their judges to serve without benefit of a law degree (a 31st, Connecticut, allows non-attorney Probate Judges in office on January 4, 2011 to remain and be reelected.) In many instances there is no education requirement whatsoever; this is the case in New York’s approximately 1300 Town & Village Justice Courts which possess powers over vehicle and traffic matters, small claims, evictions, civil matters and criminal offenses.

AB 8336 would require all town and village court judges have at least an associate’s or bachelor’s degree. “Towns of the first class” (effectively towns over 10,000) and villages with more than 10,000 people could then opt to require a law degree/admission to practice law in New York. Currently serving town/village judges would be exempted from the new educational requirements.

Several other bills in the last 4 years have sought to restructure the entire town/village court system and each included similar educational mandates. AB 10945 of 2009, AB 5647 of 2011, and AB 5338 of 2013 all included a provision that town/village judges should have at least an associate’s or bachelor’s degree.

So far, none of the bills have advanced out of committee.

New York Legislative Year in Review: mandatory judicial retirement age on ballot; false liens on judges

Constitutional Amendment

AB 4395 (Constitutional Amendment) Authorizes retired supreme court justices (in New York, the court of general jurisdiction is the supreme court) to serve as justice of supreme court until age 80. Provides that judges of the court of appeals need not retire until the end of the year in which they turn 80. Prohibits the appointment of any person over age 70 to the court of appeals. Put on November 2013 ballot and rejected.

Law

AB 8013 Authorizes the chief administrator of the courts to establish rules for special proceedings authorized under section 9-518 of the uniform commercial code relating to wrongful financial statements.

Election 2013: Are NY Proposal 6’s loss or Texas Prop 9’s win harbingers for 2014?

The final results are in from last night’s two electoral items related to the courts and both were fairly dramatic in their win/loss ratios.

Texas Proposition 9 was approved 85% to 15%

Prior to last night the Texas State Commission on Judicial Conduct could only issue an order of public censure or recommend a judge be removed from office/forced into retirement. Under Proposition 9 as approved the Commission can now issue orders of public censure, public admonition, warning, and reprimand in addition to mandatory training or education.

Projection for 2014: Texas was one of only a few states that put the specific and explicit powers of their judicial disciplinary commission into the constitution. In most other states Proposition 9 would have been a simple enactment to the commission’s authorizing statute without need of a referral to the voters. That said, there have been efforts in the recent past (FloridaMaryland, Minnesota, and Tennessee) to expand the power of judicial disciplinary commissions to punish judges for their decisions, and the overwhelming win here might lead some to believe voters are eager to expand the power of such commissions.

New York Proposal 6 was rejected 60% to 40%

This constitutional amendment would have increased the mandatory retirement age for the state’s top appellate court (court of appeals) from 70 to age 80 and prohibited the appointment of any person over age 70 to the court of appeals. It also would have allowed judges of main trial court (supreme court) to be recertified for 2-year increments from age 70 to age 80.

This marks the 6th time in 20 years an effort to increase the mandatory retirement ages for judges has failed at the ballot box. Of the four efforts that did succeed, three (Louisiana’s Measure 15  in 2003, Pennsylvania’s Amendment 2 in 2001, and Texas’s Proposition 14 in 2007) were effectively minor changes to allow judges to serve out their current term in office or serve out the end of the calendar year they hit the retirement age. Only one (Vermont Retirement Age for Judges Amendment in 2002) actually erased or eliminated a retirement age (age 70) and gave the legislature the power to set it at any age from 70 – 90 (they opted for 90).

Projection for 2014: This marks the fourth loss in a row for increasing judicial retirement ages (Arizona’s Proposition 115 in 2012, Hawaii’s Amendment 2 also in 2012, and Ohio Issue 1 in 2011) but each lost for effectively different reasons.

  • Arizona Proposition 115’s loss was due not so much for the mandatory retirement age increase but for the rest of the proposal which changed the state’s merit selection system and was vigorously opposed for that reason.
  • Hawaii’s Amendment 2 shows the danger of a disinterested electorate. This plan kept the mandatory retirement age of 70, but allowed the state’s chief justice to effectively recertify and call back into service retired judges for 3 month increments past the age of 70. It failed not because of a substantial “no” vote or campaign, but because 10.4% of voters simply skipped the question which, under the Hawaii electoral code, was effectively a “no” vote.
  • Ohio’s Issue 1 was a perfect storm of bad luck in terms of ballot timing and placement. Also on was Issue 2, an effort to limit collective bargaining rights for public employees. Issue 3 purported to exempt Ohio residence from any national health care mandates. Issue 2 & 3 saw vocal and energetic supporters and opposition. The state Democratic Party came out with its “No-No-No” position: no on all measures. Meanwhile the Ohio Republican party had no apparent position on Measure 1, while backing Yes votes on Issues 2 and 3. Issue 1 lost 38-62% (for my review of the vote tallies at the time, click here).

There is already a judicial retirement age increase on the 2014 ballot in Hawaii (70 to 80) with others possible in Louisiana, Michigan, and other states so the issue is bound to come up at the ballot box again. It remains to be seen whether voters will approve a straight increase or elimination of the mandatory judicial retirement ages in their state.

New York Proposal 6: Judges would have second highest mandatory retirement age in nation if approved

New York Proposal 6 would also change the state’s mandatory judicial retirement age from 70 to effectively 80 for the state’s top court (Court of Appeals). It would also allow judges of the main trial court (Supreme Court) to be recertified every 2 years from age 70 to 80 and continue to serve.

New York’s current retirement-at-age-70 is the most typical age for states that have such ages. If approved, the retire-at-80 would be the second highest in the nation (Vermont forces judges out at age 90).

A chart listing all mandatory retirement ages for state judges is below.

Continue reading New York Proposal 6: Judges would have second highest mandatory retirement age in nation if approved

New York Proposal 6: State has had mandatory judicial retirement age since Revolutionary War

Since the Revolutionary War, New York State has (with a 20 year hiatus) always had some sort of constitutionally established age limit for the judges of its highest court(s). The state’s 1777 constitution provided

[T]that the chancellor, the judges of the supreme court, and first judge of the county court in every county, hold their offices during good behavior or until they shall have respectively attained the age of sixty years.

Article V, Section 3 of the 1821 constitution effectively repeated the 1777 provision

The chancellor and justices of the supreme court shall hold their offices during good behavior, or until they shall attain the age of sixty years.

The 1846 constitution is notable in that it did not include a provision for mandatory judicial retirement. This may stem in part from the provision that the judges were to be elected, or in some cases appointed, for set terms rather than for life/good behavior.

The lack of retirement age didn’t last long; the ill-fated 1867 constitutional convention submitted to voters a revised judiciary article that included one, this time at age 70 (Article VI, Section 13)

But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age.

The 1867 constitution was described as “ill-fated” because while every other article was rejected by voters, the revision to the judiciary article (including changing the organization of the state’s courts) was approved.

The 1894 constitution (Article VI, Section 12) essentially repeated the 1867 amendment.

No person shall hold the office of Judge or Justice of any court longer than until and including the last day of December next after he shall be seventy years of age.

The mandatory 70 retirement age was reaffirmed twice, in convention at least. A 1915 constitutional convention repeated the requirement (although the constitution itself was rejected by voters). A 1921 constitutional convention under the direction of the legislature was put together for the sole purpose of reviewing the judiciary article. They suggested several revisions to judiciary’s organization and function but again, kept the mandatory retirement age of 70. This time it was the legislature, rather than the voters, that rejected the entire proposal.

The 1938 constitution, too kept the mandatory retirement age and explicitly extended it to Surrogate’s Court judges (Article VI, Section 19)

No person shall hold the office of judge or justice of any court or the office of surrogate longer than until and including the last day of December next after he shall be seventy years of age.

Thus the provision remained until 1961 & 1966 when legislatively proposed amendments to the judiciary article were approved to what it reads today:

Each judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of the county court, judge of the surrogate’s court, judge of the family court, judge of a court for the city of New York established pursuant to section fifteen of this article and judge of the district court shall retire on the last day of December in the year in which he or she reaches the age of seventy.

Special November 2013 election coverage starts today: items on NY & TX ballots

With seven weeks until the November 2013 elections, Gavel to Gavel‘s coverage of the two items on the ballot will start through the e-newsletter, the blog and YouTube channel.

As a reminder, the two items are:

New York Proposal 6 (AB 4395) Increases mandatory retirement age for top appellate court (court of appeals) from 70 to age 80. Prohibits the appointment of any person over age 70 to the court of appeals. Allows judges of main trial court (supreme court) to be recertified for 2-year increments from age 70 to age 80.

Texas Proposition 9 (SJR 42) Expands the types of sanctions that may be assessed against a judge or justice following a formal proceeding instituted by the State Commission on Judicial Conduct to include an order of public admonition, warning, reprimand, or a requirement to obtain additional training or education.

Special Edition: 2013 & 2014 ballot items affecting the courts – 8 states confirmed, more items likely to be added

Since my last update 3 months ago on the 2014 ballot there’s been one piece of movement: New Yorkers will vote in 2013 (as opposed to 2014) on whether or not to raise the mandatory retirement age for the state’s top court and allow for judges of the state’s main trial court to serve past the age of 76. (Update 9/5/13 @ 2:03 PM plus another, Oregon see below)

Details of what is, and what could be, on the 2013 & 2014 ballot affecting the courts below:

Alabama

SB 4, the American and Alabama Laws for Alabama Courts Amendment, will be the second time (Oklahoma 2010 was the first) where 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, it also refuses to grant full faith and credit to court decisions or orders issued in other states that use or reference foreign/international law.

Arkansas

HJR 1009, the Elected Officials Ethics, Transparency and Financial Reform Amendment, is effectively two amendments in one. The first part restricts lobbying and lobbyist gifts for all elected officials including judges. The second part removes the legislature’s power to set salaries for elected officials, including specifically 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. Of the 7 member commission, the Chief Justice would get to pick 1 member. The Commission could recommend any increase (or decrease) of up to 15%.

For judges, this amendment removes the guarantee that their 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 the same, uniform salary. It also specifically provides that salaries to judges and others be paid monthly.

Hawaii

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 prior attempts, click here).

Kansas (possible)

Merit selection was eliminated by statute for the Court of Appeals and replaced with a quasi-federal system in 2013 (governor picks, senate confirms, retention election for additional terms). Efforts to end merit selection for the Supreme Court, which requires a constitutional amendment, cleared the Senate but could not get the two-thirds majority in the House. Some version or iteration will likely come back in 2014 and may yet clear the House.

The other bill to watch for is an effort to remove the state courts’ power to order additional school financing. The constitution includes a provision that “the legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law.” The state’s supreme court held in 2005 that provision necessitated additional funding for schools. The Kansas Senate approved an amendment that would prohibit the courts from ordering more money for schools (“The financing of the educational interests of the state is exclusively a legislative power under article 2 of the constitution of the state of Kansas and as such shall be established solely by the legislature.”) However, like the judicial selection effort, this one was unable to overcome the two-thirds hurdle in the House.

One final note about the above in Kansas is the timing: the Senate approved bills would have put the vote on these items onto the August 2014 primary ballot and not the November 2014 general election ballot.

Louisiana (possible)

SB 5 which would have removed the state’s mandatory judicial retirement age of 70 looked like it was on its way to the 2014 ballot but failed to get the 2/3rds majority in the House required. That said it will probably be reintroduced in 2014.

SB 5 had a fairly smooth sail through the legislature: it passed the Senate 33-2 in early May, 15-2 in the House Judiciary Committee, and 9-0 in the House Civil Law and Procedure Committee. The momentum failed to clinch the 70 votes needed in the House and it failed 61-35. At least two floor amendments were offered up; one to increase the mandatory retirement age from 70 to 76 was defeated. The other, to put the item on the October 2013 ballot rather than the November 2014 ballot, was also rejected.

This may not be the end; the last change to judicial retirement age in Louisiana took place in 2003. The first proposal, an increase from 70 to 75 (HB 86) failed to get the 2/3rds in that session’s House (68 to 22), but that failure paved the way for HB 19, a constitutional amendment later approved by voters, that allowed judges to serve out the term in which they turned 70.

Michigan (possible)

A plan to eliminate the mandatory retirement age for judges has made it through the Senate Judiciary Committee twice (2012 & 2103).

Minnesota (possible)

Minnesota is pushing forward with an effort to get a constitutional amendment on the 2014 ballot putting merit selection in place for all state judges. The House version made it through the Elections committee and the Senate version through that chamber’s Judiciary committee in 2013.

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. 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.

New York (in 2013)

New York voters will decide on raising the mandatory retirement age for the state’s top court and letting judges of the state’s main trial court serve longer. Currently judges of the state’s main trial court (the Supreme Court) must retire at age 70, but can be “certified” and return to service in 2 year increments until age 76 (technically the last day of December they turn 76). The proposed constitutional amendment allows for certifications up to the end of the year in which the judges turn 80. The judges of the trial court also could not run for office if they were over 70. Finally, the amendment raises the mandatory retirement age for New York’s top court (the Court of Appeals) from end-of-year-turned-70 to end-of-year-turned-80.

Oklahoma (possible)

The Oklahoma Senate cleared 3 constitutional amendments in the 2013 session affecting the courts. The first, similar to Kansas, ends the state’s merit selection system for appellate judges and allows for the governor to pick any qualified person. Unlike Kansas, which simply ends the merit selection system, the Oklahoma proposal allows the merit selection commission to remain but as an advisory body only, one that would review the governor’s pick after selection but before senate confirmation.

The second bill, which can be read as related to or separate from the first, provides appellate judges are to serve a single 20 year term and ends retention elections in the state. It is prospective, allowing current judges/justices to remain in office.

The final bill could also be read as related or as a stand-alone. It removes the supreme court’s power to name its own chief justice and transfers the power to the governor.

While all passed the Senate, none of the three made it through the House. However, under legislative rules the bills are carried-over into the 2014 session automatically and could be taken up by the House without re-passage by the Senate.

Oregon

SJR 34 allows state judges to serve in the National Guard or be employed by state public universities as teachers while remaining judges. 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. SJR 34 adds to those exceptions.

Tennessee

Currently Tennessee has a statutory-based merit selection system for the state’s appellate courts. SJR 2 would specifically put into the state constitution a quasi-federal system: governor appoints, House and Senate approve, additional terms by retention elections.

What makes this November 2014 ballot item more interesting is what happens if it is rejected; so far the statute for the judicial nomination commission has not been reauthorized and the commission ceased to exist at the end of June 2013. This leaves it an open question of what happens if the quasi-federal system is rejected and there’s no merit selection statute in place. To top it all off most of the appellate judges in the state are up for a yes/no retention election in August 2014.

Texas (in 2013)

SJR 42 rewrites a substantial portion of the constitution with respect to the state’s judicial disciplinary commission, the State Commission on Judicial Conduct. The Commission currently may proceed on “the public censure, removal, or retirement of” judges in the state. SJR 42 provides the commission has powers of censure, removal, and retirement, plus “public admonition, warning, reprimand, censure, or requirement that [the judge] obtain additional training or education.”

Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

I’ve mentioned in the past the sheer volume of bills, particularly in the last 3 years, to increase or eliminate the mandatory retirement age for judges. So far while there has been a great deal of activity no state has been able to get an increase or elimination either onto the governor’s desk or before the voters.

Hawaii in particular looks to be the most likely to get an increase or elimination, but it not at all clear how the state legislature will fare and how the voters will react. Hawaii has a particular history with the subject of mandatory judicial retirement, one that does not suggest adoption is certain.

2005-2006 session: Eliminate it

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise it

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Increase it and/or work around it

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Increase it and/or work around it (again)

Despite the loss in 2012, the legislature appears inclined to try and repropose the judge emeritus concept again to voters. HB 275 and SB 346 effectively cut and paste the language that was on the November 2012 ballot. The difference here would be that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

SB 650 of 2012: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

HB 275 of 2013 (as approved by House): The chief justice may appoint judges and justices who have retired as emeritus judges, permitting the appointed judges and justices to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per appointment.

SB 346 of 2013: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

 HB 275 as amended was approved unanimously by the full House February 28.

HB 792, SB 886 and SB 1022 all increase the mandatory judicial retirement age from 70 to 80. Of the three, it is SB 886 which has had the greatest success; it was approved unanimously by the Senate February 15 and unanimously by the House Judiciary Committee March 7. The next hurdle is the House Finance Committee. Despite the swift passage so far, it could be delayed up to a year and carried over until the 2014 session (as occurred with SB 650, mentioned above).

The latest status report on the bills in Hawaii and the other 16 states considering the issue this session are below the fold.

Continue reading Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject