Election 2016: 32 states impose some form of mandatory retirement age on most or all of their judges; voters may raise (PA) or repeal (OR) their ages

Two states will be voting next week on whether or not to change their mandatory judicial retirement ages. Pennsylvania voters will be deciding whether to raise their age from end-of-the-year-turn-70 to end-of-the-year-turn-75. Oregon is deciding on whether or not to simply repeal the provision in the state’s constitution allowing for a mandatory retirement age at all; the state currently requires retirement at 75.

Pennsylvania’s mandatory age of 70 is consistent with the practice in many other states. All told, some 32 states have a general mandatory judicial retirement age. At the appellate level, it is fairly straightforward: the majority of states (21) set 70 as the age, however some states allow a judge to serve out the term or the year in which they reach the threshold age.

At the trial court level, things become somewhat murkier. For example, in at least 8 states with mandatory retirement ages for higher courts (appellate, general jurisdiction trial) some or all of the state’s lower court judges are exempt. For example, in South Carolina appellate and trial judges generally must retire at age 72, but Probate and Municipal Judges have no specific mandatory retirement age. Georgia, on the other hand, has the opposite situation: there is no mandatory retirement age for their top courts but some Municipal Courts have imposed mandatory retirement ages on their judges.

The table below gives the general overview of retirement ages, detailed state by state analysis based on court type and other particulars below the fold.

Age # of States States
70 20 Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Dakota, Virginia, Wyoming
72 4 Colorado, Iowa, North Carolina, South Carolina
73 1 Virginia
74 1 District of Columbia, Texas
75 5 Indiana, Kansas, Oregon, Utah, Washington
90 1 Vermont
None 18 California, Delaware, Georgia, Idaho, Illinois*, Kentucky, Maine, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Rhode Island, Tennessee, West Virginia, Wisconsin

*Illinois statute struck down as unconstitutional but never formally repealed

Continue reading Election 2016: 32 states impose some form of mandatory retirement age on most or all of their judges; voters may raise (PA) or repeal (OR) their ages

Election 2016: Coverage of November ballot items starts today; live coverage of all items election night at ncsc.org/elections

With the election season in full gear, today starts Gavel to Gavel’s review of the 4 ballot items to watch for state courts:

State Ballot Item Synopsis
Arkansas Issue 1 Extends terms for Circuit Clerks and other county officials from 2 years to 4 years
Georgia Amendment 3 Disbands Judicial Qualifications Commission, allows legislature to recreate and set membership
Oregon Measure 94 Repeals mandatory judicial retirement age
Pennsylvania Amendment 1 Increases mandatory judicial retirement age from 70 to 75

In addition to these items, I’ll be once again hosting live election night coverage of the 65 supreme court/court of last resort races at the National Center for State Court’s Election 2016 website www.ncsc.org/elections

Oregon Legislative Year in Review: con amendment would eliminate mandatory judicial retirement age; more courts to require their judges be lawyers; restricting personal ID numbers in court files

On Ballot

SJR 4 Repeals constitutional provision allowing for the establishment of a mandatory retirement age. To appear on November 2016 ballot.

Law

HB 2316 Increases fee amounts charged by justice courts for various filings. Provides that party to proceeding in open court in justice or municipal court may arrange for recording or reporting of proceeding.

HB 2340 Restricts Social Security numbers, driver license numbers, and taxpayer identification numbers in certain court documents to last four digits of such numbers. Prohibits the inclusion of address of victim within judgment containing a money award in criminal action.

HB 3399 Requires justice court and municipal court to record criminal proceedings. For Justice of Peace or Municipal Courts not of record,  judge to be member of Oregon State Bar or to have completed course on courts of special jurisdiction offered by National Judicial College within 12 months of election or appointment. Allows educational equivalence course if proposed by Justice of the Peace or Municipal court judge and approved by Chief Justice of Supreme Court. For Justice of Peace or Municipal Courts that is a court of record, requires Bar membership.

SB 385 Adds justice court, municipal court, probate court and juvenile court to definition of “court facility” where firearms and other weapons are prohibited absent specific circumstances. Establishes that prohibited knives include pocketknives. Authorizes municipal, probate, juvenile and justice court judges to establish procedures regulating possession of firearms and other weapons in court facilities. Establishes that in shared court facility, order, policy or procedure of presiding court judge takes precedence over that of municipal court judge, probate court judge, juvenile court judge or justice of the peace. Establishes that conviction under section is Class C felony. Clarifies that court may only prohibit weapons in area where court conducts business and during hours court operates

SB 919 Provides that person who falsely reports hazardous substance, fire, explosion, catastrophe or other emergency in court facility or public building commits crime of disorderly conduct in the first degree.

With North Carolina going back to partisan races for Court of Appeals, other states looking at similar moves

With North Carolina moving its Court of Appeals races from nonpartisan back to partisan, I thought I’d take a moment to examine what other states with nonpartisan appellate races have seen similar efforts in recent years.

Arkansas: The state had partisan elections until a 2000 constitutional amendment (Amendment 80) rewrote the state’s entire judiciary article. Section 18 of the new judiciary article requires nonpartisan elections.

Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office.

HJR 1015 of 2015 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Georgia: The state in 1983 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Art. VI, Sec. VII, Para. I)

All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.

HR 855 of 2005 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Idaho: The state has made use of nonpartisan elections for the Supreme Court since at least 1970 (I.C. 34-905).

There shall be a single nonpartisan ballot for the election of justices of the supreme court and district judges.

There has been no attempt to alter this provision in the last two decades.

Kentucky: The state in 1975 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Sec. 117)

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.

There has been no attempt to alter this provision in the last two decades.

Minnesota: State law mandates that those seeking a seat on the state’s appellate courts run on a nonpartisan basis (Minn. Stat. 204B.06(6))

Each justice of the Supreme Court and each Court of Appeals and district court judge is deemed to hold a separate nonpartisan office.

There has been no attempt to change this from nonpartisan to partisan, although several bills were introduced to change the nonpartisan races to gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Mississippi: The state made use of partisan elections until the adoption of the Nonpartisan Judicial Election Act in 1994. MS Code 23-15-976 specifies that

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

Nearly 3 dozen attempts have been made to repeal the Nonpartisan Judicial Election Act in its entirety or at least with respect to the appellate courts and revert the law back to what it was prior to 1994 bringing a return to partisan elections. None have advanced out of committee.

Montana: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (MT Code 13-14-111)

Except as otherwise provided in this chapter, candidates for nonpartisan offices, including judicial offices, must be nominated and elected according to the provisions of this title.

SB 393 of 2005, D. 1760 of 2009, and HB 521 of 2011 would have made the races for Supreme Court partisan. The 2005 bill was killed in committee and the 2009 version only reached the drafting stage. The 2011 version was approved on a 12-6 vote of the House State Administration Committee but was killed by the full House on a 45-54 procedural vote not to advance the bill beyond the 2nd Reading calendar.

Nevada: State law mandates that those seeking a seat on the state’s Supreme Court or its new Court of Appeals run on a nonpartisan basis (N.R.S. 293.195)

Judicial offices…are hereby designated nonpartisan offices.

There has been no attempt to change this from nonpartisan to partisan.

North Dakota: State law prohibits any reference to party on ballots for the state’s Supreme Court (N.D. Cent. Code 16.1-11-08)

No reference may be made to a party ballot or to the party affiliation of a candidate in a petition and affidavit filed by or on behalf of a candidate for nomination in the primary election to an elective county office, the office of judge of the supreme court, judge of the district court, or superintendent of public instruction.

There has been no attempt to change this from nonpartisan to partisan.

Oregon: State law defines races for the Supreme Court and Court of Appeals as nonpartisan (O.R.S. 254.005(8))

“Nonpartisan office” means the office of judge of the Supreme Court, Court of Appeals….

There has been no attempt to change this from nonpartisan to partisan.

Washington: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (RCW 29A.52.231)

The offices of superintendent of public instruction, justice of the supreme court, judge of the court of appeals, judge of the superior court, and judge of the district court shall be nonpartisan and the candidates therefor shall be nominated and elected as such.

Two bills to convert races for both appellate courts (HB 2661 of 2011) or just the Supreme Court (HB 1051 of 2015) were never heard in committee. A third proposal (HB 2150 of 2007) would have replaced nonpartisan elections with gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Wisconsin: State law defines judicial races as occurring during the nonpartisan Spring Elections (Wis. Stat. 5.02(21))

“Spring election” means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.

There has been no attempt to change this from nonpartisan to partisan.

Oregon: New law makes it specific crime to (falsely) yell “fire” in a courthouse

As I noted when this bill was first introduced last spring

It’s a somewhat tired and shopworn statement derived from a U.S. Supreme Court decision (Schenck v. U.S.) that while the First Amendment assures freedom of speech “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” A new bill introduced in Oregon would make it clear the “falsely shouting fire and causing a panic” won’t be accepted in a courthouse any more than it is in a theater.

One version of that bill (SB 919) was signed into law in June with an effective date of January 1, 2016. The law amends the state’s existing first degree disorderly conduct statute (ORS 166.023) that makes it a crime to falsely shout fire in a school to include court facilities and all public buildings (new language in bold)

A person commits the crime of disorderly conduct in the first degree if, with intent to cause public inconvenience, annoyance or alarm, or knowingly creating a risk thereof, the person initiates or circulates a report… Stating that the hazardous substance, fire, explosion, catastrophe or other emergency is located in or upon a court facility or a public building, as those terms are defined in ORS 166.360.

First degree disorderly conduct is punishable as a Class A misdemeanor for a first offense and a Class C felony if previously convicted under the same statute.

New North Carolina law expands carrying of guns directly into courtrooms; roundup of guns-in-courts legislation in 2015

I noted back in March the litany of bills that would allow for expanded carrying of firearms into courthouses, and in some cases directly into courtrooms. Since then there’s been a great deal of activity.

In late July North Carolina’s governor signed into law a bill (HB 562) that would allow for prosecutors to carry guns not just into courthouses but directly into courtrooms. Moreover, the no-guns-courthouses policy (specifically that “portion of the building used for court purposes while the building is being used for court purposes.”) already in place no longer applies to administrative law judges or employees of the Department of Public Safety.

At the same time North Carolina was debating expanding guns-in-courthouses, Oregon was moving to restrict. SB 385, as introduced, originally added justice courts and municipal courts to the definition of “court facility” in which firearms and other weapons are prohibited except in specified circumstances. As enacted SB 385 still expands the restriction, allowing municipal court and justice of the peace court judges to ban weapons but only to those portions of the “local court facility” used by the court during the hours in which the court operates. Moreover, in buildings where there are multiple types of court (circuit, municipal, justice of the peace, etc.) the presiding judge of Circuit Court can enforce a ban that cannot be contradicted by an order of the lower court’s judges.

A review of 2015 legislation regarding guns in courts is below the fold.

Continue reading New North Carolina law expands carrying of guns directly into courtrooms; roundup of guns-in-courts legislation in 2015

Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of foreign or international law. Of these, Mississippi saw after 5+ years of trying the enactment of such a ban. HB 177 provides in operative part that

A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (Mississippi HB 493, HB 557, HB 622, HB 1216; Oregon SB 176, South Carolina HB 3521, and West Virginia HB 2994). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 which upheld striking down such a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. West Virginia HB 2994 is of particular note here in terms of not just targeting sharia, but “Canon law, Halacha and Karma”, language almost identical to a bill introduced in Arizona 2010 and 2011 and discussed here.

Details on the legislation introduced in 2015 below the fold.

Continue reading Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”