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.

Oklahoma bill would deny judges salaries, use judicial disciplinary system to remove judges who recognize same sex marriage licenses

At least one member of the Oklahoma House is now prepared to join fellow legislators in South Carolina and Texas willing to prohibit salaries to judges and other state or local employees who recognize same sex marriage licenses. However, the Oklahoma plan goes further and contemplates outright removing judges from office.

Using language that is an almost word for word copy of the Texas bill (HB 623), Oklahoma HB 1599 provides (Update 1/23/15 10:51 with finalized language)

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.

The Oklahoma bill, however, goes further than either the South Carolina (which only threatened the judge with forced recusal cases involving same sex marriage licensees) or Texas (which was silent) and specifically makes such recognitions an offense subjecting the judge 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.”

§ 1. Removal of judges from office – Compulsory retirement – Causes.

(a) In addition to other methods and causes prescribed by the Constitution and laws, the judges of any court, exercising judicial power under the provisions of Article VII, or under any other provision, of the Constitution of Oklahoma, shall be subject to removal from office, or to compulsory retirement from office, for causes herein specified, by proceedings in the Court on the Judiciary.

(b) Cause for removal from office shall be: Gross neglect of duty; corruption in office; habitual drunkenness; commission while in office of any offense involving moral turpitude; gross partiality in office; oppression in office; or other grounds as may be specified hereafter by the legislature.

Like the Texas and South Carolina bills, Oklahoma 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 has been prefiled for the 2015 session set to start on February 2.

 

OK: Bill allows state’s top judges to criminally charge delegates to any future Art. V constitutional conventions

I mentioned last year here and here a series of bills that first started in Indiana that would put state judges in the position of sitting as an advisory body and/or grand jury over delegates in the event of some future constitutional convention under Article V of the U.S. Constitution. Oklahoma’s legislature now appears prepared to consider a similar measure.

Like the Indiana (law), Florida, Georgia (law), and Mississippi efforts before it Oklahoma SB 53 would take three of the state’s top judges (chief justice of Supreme Court, chief judge of Court of Civil Appeals, presiding judge of District Court in Oklahoma County) and make them an “advisory group” to enforce the state legislature’s instructions to any future Article V delegates. The judges would have to give their opinion if a delegate’s vote violated the legislature’s will; a delegate would also be allowed to get the group’s advice ahead of any action at the convention. If the judges determined the delegate exceeded the legislature’s directions, they would refer to delegate to the state’s Attorney General for prosecution for the new crime of failure to adhere to the legislature’s instructions.

While Indiana and Georgia enacted versions with judges serving in this advisory and quasi-grand-jury capacity, other states have been less inclined. The Florida House version of this bill, for example, removed the judge(s) from the advisory group when it was noted such a provision would violate the separation of powers provisions in the Florida constitution.

SB 53 has been prefiled for the 2015 session.

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.