Oklahoma Legislative Year in Review: trial judges now make more $$$ than appellate judges, judges carrying guns in courthouses

Law

HB 2998 Specifically provides all court records considered public records and subject to Oklahoma Open Records Act, unless otherwise identified by statute to be confidential. Allows courts to seal record or portion only if a compelling privacy interest exists which outweighs the public’s interest in the record. Requires Supreme Court of Oklahoma immediately make rules regulating the display of court records online to ensure that all online data is displayed uniformly in all counties. Requires court clerks obey and follow the rules.

HJR 1096 Allows salary increases for trial judges, but not for appellate judges, as recommended by Board on Judicial Compensation. Specifies increase does not apply to state officials whose salaries are tied to trial judges.

SB 1442 Provides any judge of the district court to carry firearm into courthouse so long as they complete special training for court officials developed by Council on Law Enforcement Education and Training (CLEET). Provides CLEET to issue cards demonstrating judge meets education standards and is eligible to carry into courthouse.

Wisconsin becomes third state to consider tinkering with mandatory judicial retirement age to push judges off appellate courts

In the process of examining the issue changes to mandatory judicial retirement ages, I’ve noted that in many cases these are enshrined in state constitutions, making them effectively impossible to increase as voters have rejected such efforts. Now, however, there is a new pattern emerging to impose new, or decrease existing, retirement ages to remove currently serving appellate justices and judges, most recently in Wisconsin.

The first recent effort was in Kansas in May 2013. Members of the Kansas legislature, angry at the Kansas Supreme Court’s decisions proposed reducing the mandatory retirement age by statute from 75 (or more specifically the end of the term in which they hit 75) to the day that the appellate judge turned 65. I discussed that effort, formally introduced as HB 2415 in this post here.

The second effort was in Oklahoma in January 2014. While the state’s constitution allowed the legislature to set whatever age it wished for mandatory judicial retirement, the legislature never had. However members of the Oklahoma Senate, angry at the Oklahoma Supreme Court’s decisions striking down several laws proposed instituting for the first time such a retirement age. The bill (SB 1897) would have had the effect of removing almost all of the judges from the state’s Supreme Court and its other top court the Court of Criminal Appeals as discussed here. A similar bench-clearing bill (HB 3378) was introduced in the House. SB 1897 was approved by the Senate Pensions Committee but died before coming to a floor vote.

The third effort, alluded to just this week, is in Wisconsin. Like Oklahoma, the state’s constitution doesn’t specify a mandatory retirement age but leaves it to the legislature to decide (so long as it is not below age 70). A member of the Wisconsin legislature has begun circulating a draft bill to impose a mandatory retirement age on judges of 75 or 80. The purported target of the bill is 80 year-old Chief Justice Shirley Abrahamson. The Chief Justice is already the indirect target of another bill, proposed and passed last session, that could end her chief justiceship. The state’s constitution provides the longest serving justice is automatically chief justice, in this case Abrahamson. However, a constitutional amendment passed in 2014 and up for re-passage in the 2015/2016 session would allow the court’s members to pick the chief justice.

Some additional background.

Looking just at appellate judges 33 states have a mandatory judicial retirement age for appellate judges. Of these, 18 states have age specified in the state’s constitution: Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, and Wyoming.

The remaining states implicitly or explicitly grant the legislature some room for activity in this area.

  • Use of retirement systems/pensions to force out of office: Several states such as Arkansas, Kansas, South Carolina, and South Dakota have no specific constitutional provision for the mandatory retirement of the state’s judges. Instead, there are statutes that specify if a judge does NOT retire at a particular age they forfeit some/all/most of their retirement and pension. This system was relatively common in the early 1900s; California had a similar system of diminishing judicial benefits to entice retirement that was upheld as constitutional (Rittenband v. Cory, 159 Cal. App. 3d 410) but later abandoned (AB 1297 of 1991).
  • Explicit but limited delegation to the legislature: A few states grant the legislature a “range” within which to work. Oregon’s constitution sets the age at 75 but allows the legislature to lower it but never beyond age 70. Vermont’s constitution lets its legislature pick any age from 75 to 90 or if the legislature opted not to pick an age, 75 (the legislature set it at 90). The state of Washington’s constitution sets the mandatory retirement age at 75 but then lets the legislature lower it 70. Wisconsin allows the legislature to set any age for mandatory retirement that is above 70. So far, they have declined to do so.
  • Explicit unlimited delegation to the legislature: The legislatures of Illinois (Art. 6, Sec. 15), Indiana (Art. VII, Sec. 11), Iowa (Art. V, Sec. 18), Minnesota (Art. 6, Sec. 9), North Carolina (Art. IV, Sec. 6), Oklahoma (Art. VII, Sec. 11), and Utah (Art. VIII, Sec. 15), have effectively unfettered discretion to set a mandatory judicial retirement age as they see fit, however there are constitutional limits. The Illinois Supreme Court struck down its mandatory retirement statute on equal protection grounds – the way the law was drafted judges who hit the age of 75 were “automatically” retired, but a 75 year old who never served in judicial office could run for a judgeship and win (Maddux v. Blagojevich, 233 Ill. 2d 508 (2009)).

 

 

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.
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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.

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New law makes Oklahoma only state where trial judges make more money than appellate judges

I’ve mentioned here and here the difficulty Oklahoma has had in terms of increasing judicial salaries through their linking process; the salaries of the state’s executive branch officials are equal to those of judicial officials. For example state law provides the Governor of Oklahoma’s salary is to be equal to that of the Chief Justice of the Oklahoma Supreme Court. As a result, there hasn’t been an increase in judicial salaries since 2008 as lawmakers have rejected recommendations by the state’s Board on Judicial Compensation (such as HJR 1093 of 2012 rejecting a proposed 6% cost of living increase) out of concern they were also increasing executive branch salaries.

This year, however, the Oklahoma legislature approved, and the Governor has now signed, an increase in judicial salaries for trial judges only (i.e. District Court Judges, Associate District Court Judges, and Special District Court Judges) as HJR 1096 of 2014. This resulted in an increase for salaries for District Attorneys as their salaries are linked as 98% of District Judges.

The resulting salaries

District Court Judges $131,835
Associate District Court Judges $121,596
Special District Court Judges $111,356

However, there is no additional appropriations and the salary increases will have to come out of current budgets.

As my colleagues here at the National Center for State Court’s Judicial Salary Tracker have confirmed, this makes Oklahoma the only state where trial judges make more than appellate judges; judges of the Oklahoma Court of Civil Appeals will still make $130,410, or $1,425 less than that of a District Court Judge.

North Carolina Senate budget changes way/structure courts can strike laws as unconstitutional; fourth state in 4 years to consider such an effort

North Carolina’s Senate budget passed early Saturday morning included a myriad of changes to statutes, but one item in particular stands out as a Gavel to Gavel reader pointed out to me via email. The Senate-approved budget changes the way the state’s trial courts can strike down a law as unconstitutional, this apparently in anger at a recent decision by a trial judge striking down a 2013 NC law that would strip teachers of tenure in exchange for raises.

Under Section 18B.16.(a) of SB 744 as approved by the Senate any challenge to a statute on constitutional grounds would have to be tried or determined by panels of 3 Superior Court judges. The bill is based on a 2003 law that allows for challenges of redistricting lines to be heard by a three-judge panel of the Superior Court of Wake County. This new version, however, goes beyond Wake County and requires that the three judge panel be selected by the Chief Justice from certain parts of the state (1 from First or Second Judicial Division, 1 from Seventh or Eighth, 1 from Third, Fourth, Fifth, or Sixth). Media coverage of the proposal can be found here.

As I noted when this came up in the context of Oklahoma, no state provides for three-judge panels to address the issue of striking ANY law as unconstitutional; where they do exist they usually are created to address a particular, limited subject such as redistricting (NC & WI) or school funding (KS). My review of those laws is here.

North Carolina is now the fourth state in 4 years to try to change the ways judges can strike down state laws or rule against the legislature.

  1. Oklahoma (2014)- HB 2686 would require a challenge to the constitutionality of any state statute be heard by a panel of the state’s main trial court (District). The panel would be made of “at least three district judges”: the original district judge assigned and “additional judges assigned randomly” to the case. The House approved the bill 55-33 in March 2014 but the Senate Judiciary Committee rejected it in April.
  2. Michigan (2013)- SB 652 began with anger by the legislature over decisions by the state’s Court of Claims (a specially designated judge of the Ingham County Circuit Court, where the capital is located) over Michigan’s emergency manager and right-to-work laws. Under SB 652 as enacted in the constitutionally minimum amount of time the Court of Claims is no longer an Ingham County Circuit Court Judge but 4 judges of the state’s Court of Appeals chosen by the Chief Justice. Details here and here.
  3. Wisconsin (2013/2014)- As introduced, AB 161 provided that a trial judge/court could declare a law unconstitutional but any order by the trial court prohibiting enforcement was automatically stayed and the law allowed to remain in effect if the state filed a petition for interlocutory review was filed within ten days after the entry of the order. It derived from a case in which a Dane County judge struck down a state law (Act 10) the weakened collective bargaining in the state. What was eventually enacted provided that “If a circuit court or a court of appeals enters an injunction, a restraining order, or any other final or interlocutory order suspending or restraining the enforcement of any statute of this state, the injunction, restraining order, or other final or interlocutory order is immediately appealable as a matter of right.”
  4. Oklahoma (2012)- SJR 84 was a constitutional amendment that would have stripped the state’s Supreme Court of the power to strike down any law passed by the legislature as unconstitutional. Instead, the legislature itself would create an “Ad Hoc Court of Constitutional Review” in such cases. It was filed in the Senate Judiciary Committee but proceeded no further.
  5. Wisconsin (2011)- angry that challenges to state laws were being heard and struck down by judges of Dane County, the Wisconsin legislature enacted SB 117. Under it, actions in which state government is the sole party may be filed in any county in the state. Appeals must be heard in a Court of Appeals district  other than the one in which the case was filed. Moreover, the appellant (the state, in cases where a law is struck down at the trial level) would be allowed to pick the Court of Appeals district they want the appeal heard in.

 

 

 

Oklahoma: House votes to give only trial judges raises; delinks at least for this year judicial salaries to those of other officials

I mentioned previously Oklahoma’s practice of linking judicial salaries to that of other officials, making a raise in salary for the Chief Justice of the Supreme Court, for example, result in a raise for the Governor. That linkage has lead in the past to legislators refusing to give salary increases to judges.

Earlier this week, however, the Oklahoma House voted to effectively sever the link between judicial and other salaries for this year only and only for local/trial judges. HJR 1096 as introduced would have simply rejected the judicial salary increases. As amended and approved on a 54-34 vote in the House trial judges and local prosecutors would get about a 6% increase:

District Court Judges $ 131,835.00
Associate District Court Judges $ 121,596.00
Special District Court Judges $ 111,356.00

Those increases would not apply to the appellate courts or the Governor, Lt. Governor, Attorney General, and other state officials whose salaries are measured as a percentage of trial judge’s salaries.

The plan now goes to the Senate for its approval.