Oklahoma: Senate approves 33-13 major changes to merit/commission system; JNC would have no role in screening prior to nomination

The Oklahoma Senate yesterday approved its version of HB 3162, a constitutional amendment that would restructure the way appellate judges are chosen in the state (media report here).

HB 3162 as approved by the full Senate would effectively replace the current Judicial Nominating Commission (JNC) system with a new one that would serve in an advisory capacity only. Key provisions would include

  • Governors would be free to appoint anyone to an appellate court. Currently the JNC submits a list of names for the governor to select from.
  • The JNC’s new role would be to review the governor’s appointee as either “qualified” or “not qualified” within 90 days after appointment.
  • The governor’s appointee would be subject to Senate confirmation. There is a default provision: if the Senate fails to confirm the nominee within a set number of days, confirmation would occur by default (“Inaction  on an appointee by the Senate within the specified time periods  shall constitute confirmation of such appointee.”)

The Senate’s version differs markedly from version the House adopted last month which revised the JNC’s membership and provided for a joint House-Senate committee to confirm individuals.

HB 3162 as amended by the Senate now goes back to the House.

 

Oklahoma: effort to make Judicial Nominating Commission subject to Open Meeting Act rejected 41-44; 16 members not present, vote may be retaken

A plan to place the Oklahoma Judicial Nominating Commission (JNC) under the state’s Open Meeting Act was rejected by the House 44-41 this afternoon. The bill (SB 770) previously approved 40-4 in the Senate would have expanded the definition of “public body” subject to the Act to include the JNC. 16 members of the House had excused absences from the vote and a notice to reconsider the vote has already been filed.

Plan calls for Oklahoma Supreme Court decisions to be put on state ballot; state’s other appellate courts would be unaffected

A new plan introduced this week in the Oklahoma House would make decisions of the state’s supreme court subject to being overturned by popular vote.

HJR 1069 would amend the constitutional provision that establishes the state supreme court’s appellate and original jurisdiction. Any decision of the state’s supreme court regarding the constitutionality of a law would be subject to an override by popular vote.

provided, in any case in which the Supreme Court issues an opinion on the constitutionality of a law, the  opinion may be challenged and overturned by a vote of the people  either through the referendum petition process or by a referendum  proposed by the Legislature in the manner provided by law

Interestingly the provision does not apply to Oklahoma’s other court of last resort, the Court of Criminal Appeals.

HJR 1069 has been filed but not yet assigned to a committee.

Oklahoma: House approves 58-34 major changes to merit/commission system; JNC would serve at pleasure of gov & legislators, must send all names to gov, House/Senate cmte would confirm nominees

The Oklahoma House yesterday approved a constitutional amendment to overhaul the state’s merit/commission system used to select appellate judges and turn over control to the governor and state legislative leaders.

HB 3162 as approved by the full House would effectively replace the current Judicial Nominating Commission (JNC) system with a new one. Key provisions would include

  • A majority (8/15) of members of the JNC would serve at the pleasure of the governor and legislative leaders; currently JNC members serve fixed terms.
  • The JNC would no longer submit a list of 3 names to the governor. Instead, the JNC would be required to forward all those who meet the constitutional and statutory qualifications for office. The JNC would be allowed to “score” each of the nominees sent on a confidential 1-10 scale.
  • House/Senate committee confirmation: The original plan called for the Senate to confirm nominees. Under a floor amendment the HB 3162 now calls for confirmation by a 10-member joint House/Senate committee. The minority party in each chamber would get at least 1 seat per chamber.

One floor amendment that barely rejected (motion to table was only approved 47-46) would have let the legislature “veto” any sitting judge up for re-election by 2/3rds vote. If “vetoed” the judge would be prohibited from re-election and the office deemed vacant.

HB 3162 now goes to the Senate which in recent years has approved its own plans to alter or end entirely the state’s JNC.

 

 

Oklahoma: plan to impose mandatory judicial retirement ages on appellate courts clears subcommittee; version is not retroactive

Oklahoma currently has no mandatory judicial retirement age, although the state constitution does allow the legislature to create one.

Notwithstanding the provisions of this Article relating to terms of office, the Legislature may provide by statute for a maximum age qualification for election or appointment to office and for the retirement of Justices and Judges automatically at a prescribed age or after a certain number of years of service, or both. The compensation, age of retirement and procedure for retirement shall be prescribed by statute.

Last session this provision prompted the senate to attempt to force many if not most of the judges of the state’s appellate courts to be removed from the bench via retroactive retirement ages. This session it looks as if the House it taking the lead but dropping the retroactive provision.

HB 2339 as approved by the Appropriations and Budget Committee’s Judiciary Subcommittee earlier this week would apply only to judges elected/appointed after November 1 of this year.

For members whose initial service as a member of the [Uniform Retirement System for Justices and Judges] begins on or after November 1, 2016, if such member is serving as a member of the Oklahoma Supreme Court, the Oklahoma Court of Criminal Appeals or any division of the Oklahoma Court of Civil Appeals and reaches the age of seventy-five (75) years, such member shall be required to cease participation in the System and shall retire.    The member shall be allowed to continue service and participation in the System for such period of time after reaching the age of seventy-five (75) as may be required to complete the application for retirement and for the System to process the application subject to a maximum period of ninety (90) days after the member reaches the mandatory retirement age prescribed by this subsection.

The mandatory retirement age would not apply to trial court judges.

HB 2339 now goes to the full House Appropriations and Budget Committee.

 

Oklahoma: third House committee comes up with its own plan on how to end or alter state’s merit/commission based selection for appellate courts

Oklahoma House committees have already approved two different plans to change the way appellate judges are picked in the state. First it was the House Elections and Ethics Committee (HJR 1037), then the House Rules Committee (HJR 1042), now the House Government Oversight and Accountability Committee has approved a  third proposal (HB 3162).

HB 3162 as approved would amend the state’s constitution in 4 key ways.

Judicial Nominating Commission (JNC)

The state’s constitution creates a 15-member Judicial Nominating Commission (JNC):

  • 6 non-attorney members appointed by district by the Governor to a 6 year term
  • 6 attorney members elected by the active member of the bar in the district to a 6 year term
  • 1 non-attorney members selected from the state at-large by the Speaker of the House to a 6 year term
  • 1 non-attorney members selected from the state at-large by the Senate President Pro Tempore to a 6 year term
  • 1 non-attorney members selected from the state at-large by the other members of the JNC to a 6 year term

HB 3162 juggles the terms. The 8 members picked by the Governor (6), Speaker (1) and President Pro Tempore (1) would now serve at the pleasure of the appointing authorities.

Send all names

Moreover, and consistent with prior proposals, the JNC would no longer submit a list of 3 names to the governor. Instead, the JNC would be required to forward all those who meet the constitutional and statutory qualifications for office. The JNC would be allowed to “score” each of the nominees sent on a confidential 1-10 scale.

Senate confirmation

Any nominee chosen by the governor would be subject to Senate confirmation.

Trial court interim vacancies

The bill would put into the constitution the existing statutory scheme for filling interim District Court vacancies: the JNC would vet all those who meet the constitutional and statutory qualifications for office and send a list of 3 to the Governor.

Oklahoma: bill approved 8-2 in House committee would keep merit/commission selection, but require commission send all qualified names to governor; commission could not ask about nominees party affiliation

Last week the Oklahoma House Elections and Ethics Committee approved on a 4-3 vote a plan to remove all sitting members of the state’s appellate courts and end merit/commission based selection for the courts. Yesterday the House Rules committee approved 8-2 its own constitutional amendment (HJR 1042 as amended) which keeps the merit/commission system but with several substantial changes.

The most critical change may be the elimination of the restriction that the state’s Judicial Nominating Commission (JNC) send a list of only 3 names to the governor. Instead, the JNC would send a ranked list of all qualified applicants; the list would be public but the rankings private.

In addition HJR 1042 as amended includes several provisions regarding how the JNC’s vets applications

  • All JNC rules must be approved by the Supreme Court and both houses of the legislature
  • Applicants cannot be asked information regarding party affiliation and JNC members cannot independently seek such information out
  • Applicants who are sitting judges cannot be asked about cases currently pending before the judge
  • Applicants cannot be asked about cases that may come before the applicant if appointed
  • The JNC would have to provide the governor a detailed listing of the criteria used to vet applicants
  • The JNC would have to proof to the governor the above restrictions and processes were adhered to
  • Any person would be able to challenge (presumably in court) the JNC’s processes under laws to be passed by the legislature

If any member of the JNC violates these rules, the member would be removed and the list(s) they participated in would be voided. In addition the JNC would be obligated to create a website and publicize its rules/processes.

HJR 1042 as amended now goes to the full House.

Oklahoma: angry at recent state supreme court decisions, plan approved by House cmte would vacate all appellate courts, end merit/commission selection

Citing displeasure at recent state supreme court decisions on abortion drugs, removing a Ten Commandments monument from capitol grounds, and other rulings the Oklahoma House Elections and Ethics Committee approved on a 4-3 vote a plan to remove all sitting members of the state’s appellate courts and change the way they are selected. (h/t Gavel Grab)

Under HJR 1037 as amended (amended text here) “Any previously stated right to a judicial seat provided for in this Constitution is hereby extinguished.” All sitting appellate judges would have to face off in 2018 in nonpartisan elections.

Currently the state’s constitution provides for a merit/commission based system for the Justices of the Supreme Court and Judges of the Court of Criminal Appeals; by statute the same system applies to the Court of Civil Appeals.

The state’s constitution creates a 15-member Judicial Nominating Commission (JNC):

  • 6 non-attorney members appointed by district by the Governor to a 6 year term
  • 6 attorney members elected by the active member of the bar in the district to a 6 year term
  • 1 non-attorney members selected from the state at-large by the Speaker of the House to a 6 year term
  • 1 non-attorney members selected from the state at-large by the Senate President Pro Tempore to a 6 year term
  • 1 non-attorney members selected from the state at-large by the other members of the JNC to a 6 year term

When a vacancy occurs, the JNC sends three nominees to the governor who must select from the list. If the governor fails to do so within 60 days, the chief justice picks.

In lieu of this system the legislature is considering not only HJR 1037 but several other options:

Keep merit/commission, alter list of names

HJR 1042 (all appellate courts) Provides JNC to send a list of “all qualified” nominees to governor in rank order.

HJR 1061 (all appellate courts) Provides JNC to send a list of “all qualified” nominees to governor.

HJR 1065  (all appellate courts) Provides JNC to send a list of “all qualified” nominees to governor.

End merit/commission, replace with quasi-federal system

SJR 32 (all appellate courts) Allows governor to appoint any qualified person with Senate confirmation. Keeps JNC, but provides sole role is to rate governor’s nominee “qualified” or “not qualified” before submission to the Senate.

SJR 50 (all appellate courts) Allows governor to appoint any qualified person with Senate confirmation.

End merit/commission, replace with elections

HJR 1006 (Supreme Court only) Provides that 6-members of the court are to be elected by district, 3 statewide. Provides political parties are to nominate candidates but party labels are not to appear on the ballot.

HJR 1037 as amended (all appellate courts) Provides for nonpartisan elections on a statewide basis/ballot. Vacates all appellate seats and requires judges run in 2018.

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.