Oklahoma debates legislative takeover of Code of Judicial Conduct; Senate version drops references to independent judiciary

For the fourth biennial session in a row Oklahoma’s legislature is debating taking control of the state’s Code of Judicial Conduct away from the state supreme court and placing it in the legislature, despite a constitutional provision prohibiting such a move. This latest iteration, however, includes a constitutional amendment to overcome that challenge.

First, some background.

The Oklahoma constitution currently includes a provision giving the state’s supreme court “general administrative authority” over all courts; included within that power is the power to write court rules such as the Code of Judicial Conduct.

Except with reference to the Senate sitting as a Court of Impeachment and the Court on the Judiciary, general administrative authority over all courts in this State, including the temporary assignment of any judge to a court other than that for which he was selected, is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules.

2015/2016

This year’s proposals take the form two statutes and a constitutional amendment. In the House, HJR 1064 of 2016 amends the state constitution to allow for a legislative takeover of the Code and the Rules of Professional Conduct for attorneys.

Rules of professional conduct for judges and attorneys shall be established by the people through the initiative process or by the Legislature by statute. Until such time as said rules are established pursuant to this section, the Code of Judicial Conduct for judges and judicial candidates and the Rules of Professional Conduct for attorneys in effect on the effective date of this amendment shall remain in effect.

HB 2857 takes select elements of the existing Code and rewrites others. It does include references to the need for an “independent” judiciary. Both the constitutional amendment and statute have been referred to the House Judiciary Committee.

On the Senate side, that chamber’s Judiciary Committee chair last year introduced a statutory version of the Code (SB 766 of 2015) with the elimination of any references to an independent judiciary (discussed here). The bill has been carried over into the 2016 session.

2013/2014

SB 1747 of 2014 made the Code of Judicial Conduct subject to the same rules and procedures as that of an administrative agency. Any changes to the Code would require the affirmative vote of the legislature to enact.

SB 1894 of 2014 created a statutory Code of Judicial Conduct and eliminated most references to an independent judiciary.

2011/2012

HB 1611 of 2011 appeared to copy select portions of the Code of Judicial Conduct into statute, including references to the need for an “independent” judiciary.

2009/2010

SB 1124 of 2009 provided that “The Legislature may by concurrent resolution disapprove any existing rule of the Code of Judicial Conduct.” Moreover, while it did not take away the Supreme Court’s power to make future changes to the Code, it did provide any such changes were subject to legislative approval/rejection. It was approved by the Senate Judiciary Committee but died on the Senate floor.

HJR 1028 of 2009 provided that an changes to the Code of Judicial Conduct or any other court rule would be subject to review by the legislature for approval, rejection, and/or amendment. If the legislature took no action within 30 days, the changes would be rejected. It was approved by the House Judiciary Committee but died on the House floor.

Across country, state legislatures consider altering number of nominees judicial nominating commissions must release

One particular aspect of judicial selection legislatures have had a keen interest has been the number of names that advance through judicial nominating commissions (JNCs). 2016 looks to be no exception; in Missouri SJR 30 prefiled for the new year would eliminate the restriction that the state’s JNCs send only three names to the governor. Moreover, an examination of legislation over the last two decades shows a marked uptick in interest outside of Missouri over the last several years.

Alaska

The state’s constitution provides the state’s JNC send “two or more persons” to the governor when a vacancy occurs in either the Supreme or Superior Court; statutes require “two or more persons” for Court of Appeals (Alaska Stat. § 22.07.070) and District Court (§ 22.15.170) vacancies. No recent attempt has been made to alter these provisions.

Arizona

The state’s constitution provides that if the vacancy is on the Supreme Court, Court of Appeals, or Superior Court (in counties that use a commission system) the governor is to receive the names of “not less than three persons.” Several efforts have been made to amend this provision. SCR 1038 of 2005 would have increased this to 6 names for appellate vacancies and 7 for Superior Courts. In 2011 proposals were submitted (SCR 1040, SCR 1046, and SCR 1049) that would have increased the list to 6 names for appellate vacancies and 7 for Superior Courts.

The proposal that eventually made it on the ballot was SCR 1001 of 2011: 8 names for both trial and appellate vacancies. SCR 1001 also included several other changes to give governors more power over the JNCs. When it appeared on the 2012 ballot as Proposition 115 it received only a 27% yes vote. Undaunted by the loss, the legislature in 2013 passed HB 2600. Rather than amend the constitution, the legislature tried to force by statute the JNCs to provide governors “the names of at least five persons” for trial and appellate vacancies. In September 2013 the state’s supreme court held that law unconstitutional.

Colorado

The state’s constitution provides the JNCs in the state are to provide “a list of three nominees for the supreme court and any intermediate appellate court, and… a list of two or three nominees for all other courts of record…” No recent attempt has been made to alter these provisions.

Connecticut

Connecticut adopted a commission based system in 1986: governors nominate from a list provided by the state’s judicial selection commission but the constitution is silent as to the number. State law (Conn. Gen. Stat. § 51-44a) provides that the commission is to provide the governor a list of all “qualified candidates”. No recent attempt has been made to alter these provisions.

Florida

The state adopted a merit/commission system in 1972 for the state’s trial and appellate courts. The original provision required the JNCs to submit a list of “not fewer than three persons”. For the appellate courts, this was amended in 1976 to precisely 3 (“one of three persons nominated”). For trial courts, commission appointment was eliminated, but was made optional under a 1998 amendment that allowed voters to opt in for each county in the 2000 election. Under the 1998 trial court opt-in provision “not fewer than three” names were to go to the governor. No county opted into this system for its trial courts.

For the appellate courts, several efforts were made in the 1990s to change the “not fewer than three persons” language. The first was to change it to precisely “three persons” (SJR 18 of 1992). Eventually the legislature settled on “Not fewer than three persons nor more than six persons” (HJR 1415 and SJR 978 of 1996). The expansion to 3-6 names was approved by voters as Amendment 3 in November 1996.

By 2000 another round of efforts were made to expand the list, this time by dropping any numerical requirements and providing the JNCs were to send a list of all applicants (HB 923 of 2000) or a list of all persons eligible to fill the vacancy (HB 627, HB 827, SB 1794, and SB 1860 of 2001). None of the proposals advanced and the issue has appeared to have remained dormant since.

Hawaii

The state adopted a commission based appointment system in the 1978. Originally the commission was required to submit a “list of not less than six nominees” for each vacancy in the state’s appellate and trial courts. A 1994 amendment (SB 2294) modified this to “a list of not less than four, and not more than six” for the Supreme, Intermediate Appellate, and Circuit Courts; District Courts remained at “not less than six nominees”.

There the matter lay for over a decade until a 2005 effort (SB 1166) would have provided the lists for all courts were to be made up of “not less than three.” In 2007 a measure to change the threshold down to 3-5 names for all courts was introduced. SB 948 was approved by the full Senate and advanced through the House Judiciary Committee before ultimately dying when the legislature adjourned.

Indiana

The state’s constitution provides the judicial nominating commission must submit “a list of three nominees” to the governor for vacancies on the Supreme Court or Court of Appeals. No recent attempt has been made to alter these provisions.

Iowa

The state’s constitution provides that the judicial nominating commission is to provide “three nominees” for Supreme Court vacancies and “two nominees” for District Courts; a statute (Iowa Code § 46.14A) with respect to the Court of Appeals repeats the “three nominees” language.

With respect to the constitutional provision, there were several efforts (SJR 2006 of 2010; SJR 6 and SJR 7 of 2011) to allow the governor to reject the list of three names provided for Supreme Court vacancies and requiring the commission submit a list of three new names. None advanced.

With respect to the Court of Appeals, the statute creating the court in 1976 required the nominating commission provide the governor a list of 3 names for vacancies on that court (former § 46.15). That number was expanded to five when the state’s judiciary was reorganized in 1983. The number was reverted back to 3 when portions of section Iowa Code § 46.15 were recodified as § 46.14A (SF 381 of 2007).

Kansas

The state’s constitution specifies that with respect to the Supreme Court the Supreme Court Nominating Commission is to provide the governor a list of “three persons.” The state’s Court of Appeals had until 2013 also be selected in like fashion via a statutory system (Kan. Stat. Ann. § 20-3005) that required a list of “three nominees”. In addition District Courts in those judicial districts that have opted into the commission-select system have their vacancies filled from a list of “not less than two nor more than three persons for each office which is vacant” (§ 20-2909).

With respect to the Supreme Court, there was an effort to allow governors to reject the list of 3 names and be provided a second list of 3 new names for a total of 6 (HCR 5005 of 2009) or to simply have the commission submit 6 names on the first list (SCR 1619 of 2007 & SCR 1612 of 2009). Another (HCR 5027 of 2013) would have provided the commission submit all qualified persons to the governor.

With respect to the Court of Appeals no effort was made to expand the list the commission was required to provide, the commission system was simply eliminated in 2013 and the governor permitted to appoint any qualified person subject to senate confirmation.

With respect to the District Courts, no recent effort appears to have been made to modify the current practice of 2-3 names.

Missouri

Since adoption of its commission-based plan the Missouri constitution has specified that commissions are to submit “three persons” to fill vacancies in the Supreme Court, Court of Appeals, and specified Circuit Courts. Although a 1976 constitutional revision moved the location of the language (from Art. V, Sec. 29(a) to the new Art. V, Sec 25(a)) the 3-persons provision was unchanged.

Much of the focus in this area has been for a 4/8 or 5/10 plan. Under the proposals the initial list submitted to the governor would be made up of 4 or 5 names (vs. the current 3). The governor would be allowed to reject the list and ask for a new one, for a total of 8 or 10 nominees.

The 4/8 plan appeared in HJR 19 of 2009 (as introduced) and SJR 17 of 2011.

The 5/10 provision appeared in HJR 49 of 2008, HJR 10 of 2009 (as amended), SJR 9 of 2009, HJR 58 of 2010, HJR 18 of 2011, and HJR 44 of 2012. A plan that would allow for only a single list of 5 names was considered as HJR 52 of 2008.

The latest iteration prefiled for the 2016 session (SJR 30) would simply eliminate the 3-name limit and allow for the commission to send all qualified nominees.

Nebraska

The state’s constitution provides vacancies in the state’s Supreme and District Courts must be filed from a list of “of at least two nominees” presented to the governor. Various statutes extend this practice to the Court of Appeals (Neb. Rev. Stat. § 24-1101), County Courts (§ 24-820) and Juvenile Courts (§ 43-2,114) and incorporate the constitutional provision by reference. No recent attempt has been made to alter these provisions.

New Mexico

New Mexico uses a unique two-step process for judicial selection. When a vacancy occurs one of three JNCs (appellate judges, district court judges, or metropolitan court judges commissions) meets and submits to the governor a list of all “persons qualified for judicial office and recommended for appointment”. The governor can then ask for a second list of names. Whoever is picked, however, must then face off in partisan elections at the next general election.

While the constitution does not provide for a minimum or maximum number of names, one bill did seek to put such a provision in place after a single name was submitted in 2006 to the state’s governor to fill a District Court vacancy and no additional names sent when he asked for a second list. SB 1075 of 2007 would have required JNCs provide at least two names per vacancy. The bill never proceeded out of committee.

New York

New York’s constitution since 1977 requires vacancies for the state’s top court (called the Court of Appeals) be filled via a commission on judicial nomination, but gives the legislature power to set the organization and procedure of the commission. State law on this subject (Judiciary Law § 63) specifies the list to fill associate judgeship must contain “at least three persons and not more than seven persons.” Interestingly, the chief judgeship must be made up of at least 7 persons (“In recognition of the unique responsibilities of the chief judge of the court of appeals for policies of judicial administration, for a vacancy in the office of chief judge the commission shall recommend to the governor seven persons.”)

In 1993 an effort (AB 916) was made to raise the 7-name limit for chief judge to 11 names and automatically put all serving associate judges on that list. The bill was reintroduced for several sessions thereafter (AB 3699 of 1995 & AB 2148 of 1997).

In 2009 an attempt was made to eliminate the numerical restrictions and require the commission send all qualified names to the governor. AB 3866 of that year failed to advance but was reintroduced in the 2011 session as AB 309.

Also in 2009 an attempt was made to increase the limits from 3-7 to 5-9 (associate judge) and from 7 to 9 (chief judge). It too failed to advance.

Oklahoma

The state’s constitution provides that vacancies in the state’s two top courts (Supreme Court and Court of Criminal Appeals) are to be filled from a list of “three (3) nominees” submitted to the governor. A statute (Okla. Stat. tit. 20, § 30.17) extends this practice to the state’s intermediate appellate court (Court of Civil Appeals). No recent attempt has been made to alter these provisions.

Rhode Island

In 1994 the state’s constitution was amended to provide vacancies in the Supreme Court were to be filled from a list provided by a judicial nominating commission to be established by the legislature and confirmed by the House and Senate. Lower court vacancies (Superior, Family, and District) were also to be filled by commission-based appointment but required only Senate confirmation. A statute (R.I. Gen. Laws 8-16.1-6) provides that the list provided by the commission is to be made up of between 3-5 names.

From 2008 to 2015 governors were not limited to just those 3-5 names. Under laws enacted annually from 2008 to 2014 (HB 7829 of 2008, HB 5567 of 2009, SB 2645 of 2010, SB 686 of 2011, HB 8043 of 2012, SB 471 of 2013, and HB 8006 of 2014) anyone vetted and approved by the JNC for a judgeship would be eligible for any other judgeship of the same court for 5 years. The program lapsed on July 1, 2015 when HB 6307 failed to be enacted to give the program yet another 1-year extension.

South Carolina

South Carolina is one of only two states (Virginia is the other) in which the legislature elects judges with no involvement by the governor. In 1997 the state’s constitution was amended to require the creation of a “Judicial Merit Selection Commission” to recommend nominees to the legislature for the Supreme Court, Court of Appeals, Circuit Court, and Family Court. The commission’s membership and processes were left up to the legislature to set. The law enacted to implement the constitutional provision (S.C. Code Ann. § 2-19-80) requires the release by the commission of “the three candidates whom it considers best qualified.”

There have been over two dozen of pieces of legislation to alter the number of names released by the commission. Almost all focused on the release of all qualified names, with “qualified” meaning either a) that the individual meets the minimum requirements for the position (age, attorney, etc.) or b) the person was “qualified” to serve in the opinion of the commission.

The practice for the better part of a decade was for the House to pass the “all qualified names” provision and for the Senate to either reject it or amend it to “no more than 3 qualified names” but with a provision that more than 3 names could be sent if two-thirds of the commission approved. This House/Senate split occurred in the 2003/2004 (HB 4734), 2005/2006 (HB 2079), and 2007/2008 (HB 3463 & SB 40) sessions. The Senate passed its own standalone version (3 names, more if two-thirds of commission approved) in 2007 (SB 40) that the House failed to act on.

The matter lay dormant until the 2015/2016 session when again the House passed an “all qualified” names bill (HB 3979); the Senate has yet to act on the legislation.

South Dakota

The state’s constitution was amended in 1980 to provide that vacancies in the Supreme Court are to be filled from a list of “two or more persons” nominated by the judicial qualifications commission. No recent attempt has been made to alter these provisions.

Utah

The state’s constitution was amended in 1985 to provide for a commission-system with senate confirmation for all courts of record (Supreme, Court of Appeals, District and Juvenile). The list given to the governor for these courts must consist “of at least three nominees.” A statutory change in 2008 (SB 72) brought the state’s other courts (Justice) into a commission system. The Justice Court Commission was required to submit “at least two names to the appointing authority.”

For the courts of record, a 1995 statute (former Utah Code § 20A-12-105, recodified in 2008 as § 78A-10-104) provided the appellate commission was to provide the governor at least 5 names for each vacancy while trial court commissions were to provide at least 3 names. In 2010 this was further amended (SB 289) to provide that the appellate court commission is to submit 7 names to the governor, while the trial court commissions are to send 5. SB 108 of the same year had similar provisions. A 1998 effort (SJR 3) would have allowed the governor to reject a list of names from the commission and request a new list. There was no limit to the number of rejections.

For the Justice Courts, a 2015 proposal (SB 141) increased the number of names from “at least two” to “at least three” for the local appointing authority to choose from. The bill was signed into law in March of this year.

Vermont

The state’s constitution provides the governor is to nominate Supreme Court and other judges (other than Probate judges) from a list provided by a judicial nominating body to be created by the legislature. A state statute (4 VSA 602) provided that the Judicial Nominating Board is to submit all “candidates” to the governor for consideration; this was amended in 2009 (HB 470) to “qualified candidates”. Other than the 2009 amendment, no recent attempt has been made to alter these provisions.

Wyoming

The state’s constitution as amended in 1972 provides for a judicial nominating commission for the supreme court, district courts and any other courts the legislature decides. The commission is to give the governor “a list of three nominees” for vacancies. No recent attempt has been made to alter these provisions.

Oklahoma Legislative Year in Review: cutting the link between judicial salaries and those of other officials; appellate judges now have higher salaries than trial judges

Law

SB 456 Creates Courthouse Security Fee up to $10 in all civil cases.

SB 548 Increases salaries of appellate judges and justices (previously trial judges had a higher salary than appellate judges).

SB 549 Eliminates procedure linking salaries of other state officers/elected officials to judicial salaries. Veto overridden.

Review of 2015 efforts to change, alter, or end merit selection/commission based judicial appointment systems

The last several years have seen numerous efforts to modify or simply abolish merit selection/commission-based judicial appointive systems and 2015 was no exception. In these systems , a commission provides a list of names to an executive, or in the case of South Carolina the legislature, from which the appointing authority must select (as opposed to some states where the commission’s list is a recommendation only).

Much of the effort in 2015 focused on either a) reducing the percentage of lawyer-appointed members of the nomination commissions and/or b) requiring judges appointed under such systems receive super-majority support in subsequent yes/no retention elections. While major changes failed to pass in 2015, they do indicate where legislative activity will likely be focused in this area in 2016.

Alaska

In a repeat of efforts first started in 2014, legislators pressed to give more control to the governor and legislature over the state’s Judicial Council which serves as the judicial nominating commission for the state. Under SJR 3 the Council would have been expanded from 7 members to 10 by the addition of 3 new non-attorney members appointed by the governor. Moreover, all Council members would have been required to be confirmed by the legislature (currently the attorney-elected councilmembers and chief justice are not required to be confirmed into their council positions). Facing heavy opposition SJR 3 was approved by the Senate State Affairs Committee on March 25 but proceeded no further.

Arizona

Two constitutional amendments to modify the commission system (which applies to appellate judges and general jurisdiction judges in the state’s largest counties) were filed this year. HCR 2002 would have required judges facing retention elections receive at least a 60% “yes” vote. HCR 2006 would have allowed the state’s legislature to remove from office on a 2/3rds vote judges appointed under such a system without the need to prove an impeachable offense. Both bills died in committee.

Colorado

No changes offered.

Connecticut

No changes offered.

Florida

For the first session in nearly a decade there were no bills introduced to change the state’s judicial selection system, this after a loss in 2014 of a plan to allow governors to “prospectively appoint” to fill judicial vacancies that had not occurred yet.

Hawaii

SB 615 would have modified the Senate-confirmation portion of the state’s commission-based judicial selection system. Under the state’s constitution the governor (or chief justice for some lower courts) has 30 days to select from the list of names provided by the judicial selection commission. The Senate then has 30 days to confirm the appointee otherwise the person is confirmed by default. In 2012 several judicial appointments were made at or near the deadline and in one case without giving written notification to the Senate until a week later.

SB 615 would have specified that the Senate was to receive written notice concurrently with the appointment and that the 30 day clock for the Senate to confirm started only “on the senate’s receipt of the written notice”.

SB 615 was approved by the full Senate on March 10 but the House Judiciary Committee made several amendments to clarify some of the technical language regarding notification. The House amended version ultimately died in the House Finance Committee at session’s end.

Indiana

Indiana saw three separate efforts to change judicial selection in 2013. SJR 8 and SJR 9 sought to end commission-based selection for judges, allowing the governor to appoint anyone to the Supreme Court and Court of Appeals subject to Senate confirmation. Both constitutional amendments would have also repealed any judicial canons that prohibited a judge from speaking in their campaigns or making a donation of money, services, or property to a political party or a candidate for office, including a candidate for a judicial office. Finally, judges appointed under this system would have been required to receive a supermajority of “yes” votes to be retained in office: 67% under SJR 8 and 60% under SJR 9.

SJR 15 took a different tack on the issue of judicial selection. The constitutional amendment would have reduced the number of attorney-designated seats on the state’s merit selection commission and required Senate confirmation. In a unique proposal not found in any other state, the bill would have ended elections for subsequent terms, instead requiring a judge receive a 60% yes vote not of the general public but of the House of Representatives.

Neither SJR 8, SJR 9, nor SJR 15 proceeded out of committee.

Iowa

No changes offered.

Kansas

Having abolished the merit selection/commission-based judicial appointive system for the Court of Appeals in 2013 by statute, the state’s legislature urged on by the state’s governor debated numerous statutory and constitutional changes to the way the state’s Supreme Court is chosen, most focused on ending the state’s merit selection/commission based system.

  • HCR 5004: Direct partisan election of all appellate judges. Approved by House Judiciary Committee 2/17/2015.
  • HCR 5005: Allow Governor to appoint to Supreme Court or Court of Appeals subject to Senate confirmation. As is currently the case for the Court of Appeals by statute there would be a default-confirmation provision; if the Senate fails to vote on a candidate within a certain number of days (depending on if in session or out of session) the candidate is automatically confirmed. Judges would remain subject to yes/no retention elections. Approved by House Judiciary Committee 2/17/2015.
  • HCR 5006: Same as 5005, but judges would serve for life and not be subject to retention or other election.
  • HCR 5009: Require judges receive 67% “yes” vote in retention elections.
  • HCR 5012: Allow Governor to appoint to Supreme Court or Court of Appeals, but only from a list provided by the House of Representatives. The person appointed would be subject to Senate confirmation.
  • HCR 5013: Changes membership of Supreme Court nominating commission: 4 chosen by bar members, 5 chosen by governor, 6 chosen by legislative leaders.
  • HCR 5015: Keeps nominating commission, but gives governor power to name 5 out 9 members. Requires any name submitted to governor be approved by 2/3rds of commission.

In addition to the above SB 197 would have made statutory changes with respect to these commissions, placing them under the state’s Open Meetings Act. The records of attorneys who voted in elections to place attorney-members on the commissions would be subject to the state’s Open Records Act as well.

Missouri

No changes offered.

Nebraska

No changes offered.

Oklahoma

Angry at several recent decisions of the state’s Supreme Court which had resulted an impeachment effort in 2014, both the House and Senate debated either changing or ending the commission-system currently in place.

Two constitutional amendments were offered: HJR 1006 would have targeted just the Supreme Court (and not the other appellate courts), effectively replicating the system in place in Michigan and Ohio. There political parties nominate or hold primaries for judicial candidates who then appear without party labels on the November ballot. HJR 1006 would also have provided that the Governor was to name the Chief Justice from among the justices of the Supreme Court and remove the Chief Justice from that office at will. SJR 32 would have allowed the governor to appoint anyone to the appellate courts subject to Senate confirmation. The existing judicial nominating commission would remain, but as an advisory body to review the appointee prior to Senate confirmation as either “qualified” or “not qualified”. Retention elections would have remained in place for subsequent terms. Neither HJR 1006 nor SJR 32 proceeded out of committee.

Several statutory efforts were undertaken to change the composition of the judicial nominating commission. HB 2214 and SB 795 would have vacated all 6 currently serving attorney-selected members of the commission. The House bill would have refilled the positions with 6 attorneys, 2 each for the Lt. Governor, the Attorney General, and the state bar. The Senate version provided 3 selections each for the Speaker of the House and President Pro Tempore of the Senate. Neither proceeded out of committee.

Rhode Island

In a repeat of a practice that has been renewed annually for almost a decade, HB 6307 would have allowed governors to fill vacancies in judicial office not only based on the contemporary list provided by the judicial nominating commission but from any list submitted by the commission in the previous 5 years. The existing statutory authorization for the 5-year look back provision lapsed as of July 31, 2015. While the House passed HB 6307 prior to the deadline (June 18), the bill remains locked in the Senate Judiciary Committee.

South Carolina

South Carolina’s legislature electes the judges of the state’s higher courts and has for the last several years used a merit selection commission to obtain a list of names for consideration. Presently the commission submit a list of the three best qualified candidates, however HB 3979 and SB 247 would have required the commission release the names of all qualified candidates. That plan was approved by the House on April 29 and remains pending in the Senate Judiciary Committee into the 2016 session. Other bills focused on giving the governor a role in the selection process.

  • HB 3123: Ends legislative selection and use of nominating commission. Provides for governor to appoint subject to Senate confirmation.
  • SB 111: Ends legislative selection and use of nominating commission. Provides for governor to appoint subject to Senate confirmation.
  • SB 180: Commission sends governor list of names, governor picks 3 names, commission reviews 3 names, legislature then picks from 3.
  • SB 242: Commission members to be selected by governor, not legislature.

South Dakota

No changes offered.

Utah

In 2008 Utah’s Justice Courts were brought into the state commission-based judicial selection system. At that time the statute required the nominating commission submit at least two names to the local appointing authority to fill a judicial vacancy. SB 141 included among its various amendments to a variety of statutes a provision that the commission must now submit at least three names. It was signed into law March 23.

Wyoming

No changes offered.

 

Impeachment of state judges: OK- impeachment for court decision, PA- impeachment for judicial misconduct

Threats to impeach state judges have ramped up in the last month, but for two very different reasons.

The Pennsylvania House Judiciary Committee in late June unanimously approved HR 389, a resolution authorizing an impeachment investigation into Magisterial District Judge Kelly S. Ballentine. Judge Ballentine is facing criminal and judicial ethics charges that she fixed parking tickets issued against her (for which she was suspended from office) as well as other charges of misconduct related to her (unlicensed) shoe store and accusations she failed to pay sale taxes.

This marks the second time in two years the House has considered judicial impeachment. In 2013 a resolution (HR 159) would have impeached Supreme Court Justice Joan Orie Melvin for her criminal wrongdoing in in using state employees to help in political campaigns. Melvin was later convicted and forced to resign her office.

On the other side of the spectrum of impeachment threats were efforts lodged by the Oklahoma legislature after that state’s top civil court (Supreme Court) ruled that a Ten Commandments market placed on state Capitol grounds violated the Oklahoma constitution (h/t Gravel Grab for the articles). This marks the second attempt in as many years to impeach justices of the Oklahoma Supreme Court. In 2014 the House considered impeachment after the Supreme Court issued a stay of execution order in a death penalty case, one that the state’s governor refused to acknowledge (discussed here).

Oklahoma: Governor vetoes bill to end practice of tying salaries of executive branch officials to judges; Senate unanimously overrides

An Oklahoma bill discussed here and here to eliminate the decade’s old practice of linking salaries for executive branch officials to that of judges was vetoed by that state’s governor and promptly overridden by a unanimous Senate.

Under SB 549 the salaries of executive branch officials would have been set at specified amounts (e.g. “The Governor shall receive a salary of One Hundred Forty-seven Thousand Dollars ($147,000.00)) rather than linked (“The Governor shall receive a salary equal to the salary received by the Chief Justice of the Oklahoma Supreme Court…”) Additional increases would come from a new Board on Executive Compensation.

In her May 8 veto message Governor Mary Fallin objected to the practice of specifying salaries in statute.

Recent compensation reform initiatives have discarded the practice of codifying state employee salaries for good reason: fixing salary in statute tends to calcify salaries without regard to such pertinent considerations as inflation; the current fiscal health of the state; and most importantly, each particular employee’s performance.

The veto on SB 549 was sent back to the Senate where it was promptly overridden on May 15on a 36-0 vote. The override now goes to the House which had previously approved the bill 91-1.

Same week Colorado legislature votes to link executive branch officials’ salaries to that of judges Oklahoma votes to repeal similar system that stymied judicial salary increases

Colorado and Oklahoma’s legislatures have now taken entirely different directions in how to handle salaries for executive branch elected officials with Oklahoma moving to repeal its system of linking such salaries to judges and Colorado’s legislature voting in essentially the exact same plan.

The Colorado bill (SB 288) raced through the legislature in a single week when according to media reports dissenting House members were removed from the Appropriations committee. Under the plan the Colorado governor’s salary would equal 66% of that of the annual salary paid to the state’s Chief Justice. Other officials would have similar ties

  • Governor = 66% of annual salary of Chief Justice of the Supreme Court
  • Lt. Governor = 58% of annual salary of a County Court Judge in a Class B County
  • Attorney General = 60% of annual salary Chief Judge of the Court of Appeals
  • Secretary of State = 58% of annual salary of a County Court Judge in a Class B County
  • State Treasurer = 58% of annual salary of a County Court Judge in a Class B County

Moreover, the Colorado plan goes even farther than Oklahoma’s and links the legislature’s salaries to that of judges as well

  • Member of General Assembly = 25% of annual salary of a County Court Judge in a Class B County

SB 288 was introduced April 30, cleared the Senate on May 5 and the House on May 6.

The exact day Colorado’s SB 288 was introduced, Oklahoma’s Senate was giving final approval to a plan to repeal a similar linkage system. Oklahoma SB 549 as amended by the House was approved by the full Senate on a 36-0 vote on April 30. If signed by the governor it would end a decade’s long practice of linking executive salaries to that of judicial officials

  • Governor = salary of Chief Justice of the Oklahoma Supreme Court
  • Lt. Governor = salary of associate District Court Judge of county with population between 10,000 and 30,000
  • Attorney General = salary of Presiding Judge of the Court of Civil Appeals
  • Superintendent of Public Instruction = salary of District Judge
  • Corporation Commissioners = salary of associate District Court Judge of county with population over 30,000
  • State Treasurer = salary of associate District Court Judge of county with population over 30,000
  • State Auditor and Inspector = salary of associate District Court Judge of county with population over 30,000
  • State Insurance Commissioner = salary of associate District Court Judge of county with population over 30,000
  • Commissioner of Labor = District Court Special Judge

Because of the linkages the Oklahoma legislature had refused to grant judicial salary increases for years, voting against changes proposed by the state’s Board on Judicial Compensation. Because of the linkages last year saw only Oklahoma District (general jurisdiction court) judges getting an increase (and thanks to the linkages local district attorneys as well), resulting in trial judges making more than appellate judges whose salaries were tied to the Governor, Attorney General, and other state-level officials. That topsy-turvy situation was discussed here. The new Oklahoma plan would delink the salaries and create a special commission to recommend executive salary levels.

 

 

Oklahoma: House and Senate vote to end practice of tying salaries of executive branch officials to judges

The Oklahoma House and Senate have voted to repeal laws that tie the salaries of executive branch officials to judges. Versions of SB 549 were approved 42-0 in the Senate in March and in the House 91-1 on April 20. The House and Senate differ on the creation of a new Board on Executive Compensation that would function in much the same way as the state’s Board on Judicial Compensation functions: Board recommendations become binding unless override by the legislature.

Oklahoma’s process of tying salaries of executive officials to judges started in the 1990s. The governor of Oklahoma for example “shall receive a salary equal to the salary received by the Chief Justice of the Oklahoma Supreme Court.” The result (discussed here) has been years of rejected salary increases recommended by the state’s Board on Judicial Compensation for judges by the legislature because the increases would have also raised other salaries.

The linkages culminated in the topsy-turvy situation in 2014 when the state’s Governor and other executive officials (whose salaries were tied to appellate judges) announced they did not want raises. The legislature then increased trial court judges only, making Oklahoma the only state in the U.S. where trial judges made more then their appellate counterparts.

SB 549 instead sets specified amounts (“The Governor shall receive a salary of One Hundred Forty-seven Thousand Dollars ($147,000.00)”) and provides the new Board on Executive Compensation can increase them.

The bill now goes back to the Senate to approve or reject the House amendment creating the Board on Executive Compensation.

 

Oklahoma: bill to remove judges from office who recognize same sex marriage licenses advances

An Oklahoma plan first discussed here to punish judges and clerks of court by withholding their salaries if they recognize same sex marriage licenses has advanced out of a House committee.

HB 1599 as approved by the House Judiciary and Civil Procedure committee yesterday provides

No employee of this state and no employee of any local governmental entity shall officially recognize, grant or enforce a same-sex marriage license and continue to receive a salary, pension or other employee benefit at the expense of taxpayers of this state.

Should a judge do so, they would be subject to removal from office

If a judge violates this act, the judge shall be removed from office pursuant to Section 1 of Article VIIA of the Oklahoma Constitution.

That particular section does not refer to the state’s impeachment of judges (Article VIII); perhaps because it is not 100% clear the state legislature could impeach a local trial judge. Instead, the bill uses the state’s judicial disciplinary body (Court on the Judiciary) as the method of removal for “judges of any court.”

HB 1599 also purports to make the law itself immune from constitutional challenge by prohibiting state judges from overturning it

The courts of this state shall dismiss any challenge to any portion of the Preservation of Sovereignty and Marriage Act, with an award of costs and attorney fees to defendants.
HB 1599 now goes to House Rules committee or could be sent directly to the House floor.

Oklahoma: Legislator who led effort to impeach OK Supreme Court for death penalty ruling now pushing for special court to hear death penalty appeals; court’s makeup and selection left entirely to legislature

Anger and an impeachment effort over a decision last year by the Oklahoma Supreme Court to stay an execution may result in the creation of a new court to hear only death penalty appeals and with the method of selection and terms of judges to that court left entirely to the legislature.

Oklahoma already stands alone (along with Texas) for having two separate courts of last resort to handle cases: a Supreme Court (civil) and a Court of Criminal Appeals. Last year this caused some controversy when the state’s Supreme Court issued a stay of an execution, complete with threats by the Governor to ignore the stay and articles of impeachment filed against the justices directly onto the House floor.

This year the leader of the House impeachment effort has filed HJR 1022 a constitutional amendment to create a third court of last resort: a Court of Capital Appeals. The court would “have exclusive appellate jurisdiction in capital murder cases.” Even more interesting is how the judges would be elected. The current constitution requires appellate vacancies to be filled by the governor from a list of names provided by the state’s Judicial Nominating Commission and subject to yes/no retention elections. HJR 1022, however, allows the legislature unlettered discretion in terms of the court’s composition, terms of judges, and how those judges are selected/appointed.

HJR 1022 has been prefiled for the 2015 session.