Election 2016: Both Pennsylvania and Oregon were late-adopters of mandatory judicial retirement ages

As I mentioned in prior posts on this subject, many states either came out of the Revolution (like New York’s 1777 constitution), or entered into the Union (like Hawaii when it was admitted into statehood), with mandatory judicial retirement ages.

The states considering revisions to their ages (Oregon and Pennsylvania) are actually in this respect very, very late adopters.

Pennsylvania (193 years)

Pennsylvania has had 5 state constitutions. Of these, only 1 adopted in 1968 and going into effect in 1969 made mention of mandatory judicial retirement ages.

The 1776 constitution made no mention of mandatory judicial retirement. Neither did the 1790 constitution nor the 1838 constitution nor the 1874 constitution.

It was not until 1968 and the adoption of Art. V, Sec. 16(b) that the mandatory age was put in as the result of concerns expressed by members of constitutional convention regarding judges aging into senility (See pages 199-200).

Justices, judges and justices of the peace shall be retired upon attaining the age of 70 years.

This has been effectively amended once since 1969. In 2001 voters approved Amendment 2, allowing for judges to serve out the year they turn 70. That proposal was approved by 67.5% of voters.

Justices, judges and justices of the peace shall be retired on the last day of the calendar year in which they attain the age of 70 years.

Oregon (103 years)

Oregon has had 1 constitution but, effectively, 2 Judiciary Articles. The first (now called Article VII (Original)) was adopted in 1857 and made no mention of a mandatory retirement age. A 1910 revision, called Article VII (Amended), also made no mention.

It wasn’t until 1960 that a mandatory judicial retirement age was worked into the state’s constitution as Article VII (Amended), Sec. 1a. It wasn’t as prescriptive as the Pennsylvania model, instead allowing the legislature to set an age from end-of-year-turns-70 to 75.

Notwithstanding the provisions of section 1, Article VII (Amended) of this Constitution, a judge of any court shall retire from judicial office at the end of the calendar year in which he attains the age of 75 years. The Legislative Assembly or the people may by law:

(1) Fix a lesser age for mandatory retirement not earlier than the end of the calendar year in which the judge attains the age of 70 years

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: Pennsylvania Amendment 1- What ballot language did other states use for their similar efforts to raise mandatory judicial retirement ages?

One of, if not the, biggest issue so far in Pennsylvania’s Amendment 1 has been the ballot language. In short, Amendment 1 would raise the mandatory judicial retirement age from end-of-year-turns-70 to end-of-year-turns-75. It was  to have been voted on in the spring (discussed here), however state legislators objected to the ballot language developed by the Secretary of State and had the item pulled (ballots were already printed, however, and many people did vote, but the votes didn’t count).

The original language was

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?

After, the legislature came up with its own language and, after much state litigation, and baring federal litigation that is ongoing, that is the language that will appear before voters in 2 weeks. Opponents of the language argue that it is deceiving voters into thinking it creates a mandatory retirement age, rather than raising the exiting one.

The new language that will be on ballots this November reads

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?

Given the consistent losing track record of similar efforts in other states, it raised the question of what the language in those other states looked like.

Hawaii Amendment 3 of 2014: Increase mandatory retirement age from 70 to 80 (lost 22-73% (5% not voting on item))

Shall the mandatory retirement age for all state court justices and judges be increased from seventy to eighty years of age?

Louisiana Amendment 5 of 2014: Repeal mandatory retirement age (lost 42-58%)

Do you support an amendment to remove the constitutional requirement that a judge retire upon attaining the age of seventy or, if his seventieth birthday occurs during his term, that he retire upon completion of that term? (Amends Article V, Section 23)

New York Proposal 6 of 2013: Increase age from 70 to 80 (lost 40-60%) NOTE: In New York, the state’s court of last resort/highest court is called the Court of Appeals and the state’s main trial court the Supreme Court.

Increasing Age until which Certain State Judges Can Serve

The proposed amendment to the Constitution, amending sections 2 and 25 of article 6, would increase the maximum age until which certain state judges may serve as follows: (a) a Justice of the Supreme Court would be eligible for five additional two-year terms after the present retirement age of 70, instead of the three such terms currently authorized; and (b) a Judge of the Court of Appeals who reaches the age of 70 while in office would be permitted to remain in service on the Court for up to 10 years beyond the present retirement age of 70 in order to complete the term to which that Judge was appointed.

Shall the proposed amendment be approved?

Arizona Proposition 115 of 2012: Among other things, increase age from 70 to 75 (lost 27-73%)

DESCRIPTIVE TITLE INCREASES TERM LENGTH AND RAISES THE RETIREMENT AGE FOR JUSTICES AND JUDGES; MODIFIES MEMBERSHIP OF COURT APPOINTMENT COMMISSIONS; REQUIRES ARIZONA SUPREME, APPELLATE, AND SUPERIOR COURTS TO PUBLISH DECISIONS ONLINE AND TO TRANSMIT A COPY OF JUDICIAL PERFORMANCE REVIEWS OF EACH JUDGE UP FOR RETENTION TO THE STATE LEGISLATURE.

A “yes” vote shall have the effect of (1) increasing the terms of Arizona Supreme Court justices, Appellate and Superior Court judges to eight years; (2) raising the retirement age for justices and judges from seventy to seventy-five; (3) changing membership of commissions on appellate and trial court appointments and procedures for appointing justices and judges; (4) requiring the Supreme, Appellate, and Superior courts to publish decisions online, (5) requiring the Supreme Court to send a copy of the judicial performance review of each justice and judge who is up for retention to the Legislature, and (6) allowing a joint legislative committee to meet and take testimony on justices and judges up for retention.

A “no” vote shall have the effect of keeping current constitutional law related to the courts.

Ohio Issue 1 of 2011: Increase age from 70 to 75, repeal defunct provisions of constitution (lost 38-62%)

This proposed amendment would:

1. Increase the maximum age for assuming elected or appointed judicial office from seventy to seventy-five.

2. Eliminate the General Assembly’s authority to establish courts of conciliation.

3. Eliminate the Governor’s authority to appoint members to a Supreme Court Commission.

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

Election 2016: PA voters rejected increase in mandatory judicial retirement age, but votes won’t count and re-vote will take place in November

Yesterday voters in Pennsylvania went to the polls to vote on two items related to courts.

Amendment 1: a plan to increase the mandatory judicial retirement age for judges from end-of-year-turns-70 to end-of-year-turns-75 was rejected 50.98% to 49.02%. However, the vote totals will not count because the legislature at effectively the last minute directed the actual vote to take place in November, using different ballot wording.

The PA Secretary of State’s website includes this disclaimer for the election results

On April 20, 2016, the Commonwealth Court of Pennsylvania ruled that House Resolution 783, postponing the vote on Ballot Question 1, a proposed constitutional amendment relating to the mandatory judicial retirement age, will go into effect, and that the question should not appear on the Primary Election ballot. Because this ruling came so close to the April 26, 2016, Primary Election, it was not possible to remove it from the ballot. Any votes cast on Ballot Question 1 will not be counted/certified by the Secretary of the Commonwealth.

Amendment 2: an effort to remove any and all references to the Philadelphia Traffic Court from the state’s constitution. The court itself had effectively ceased to exist several years ago after scandal resulted in several judges of that court being convicted on federal charges. The enabling legislation was repealed in 2013; this amendment simply removed the references to the court in the state’s constitution.

 

PA: Legislature may (or may not) have just successfully pulled increase to mandatory judicial retirement age off April ballot; lawsuit “imminent”

The ongoing saga of whether an increase in Pennsylvania’s mandatory judicial retirement age will appear on this April’s ballot moves on with the legislature trying to delay the vote and a lawsuit “imminent” to keep it for this month’s election.

To recap:

  1. The legislature passed twice (2013 and 2015) a constitutional amendment to increase the state’s mandatory judicial retirement age from end-of-year-turns-70 to end-of-year-turns-75. It was to go on the next available statewide ballot, the state’s primaries this month.
  2. The legislature then balked at the proposed ballot language, calling it confusing, and filed a lawsuit.
  3. After the state’s supreme court declined to rewrite the wording, the legislature adopted a resolution (HR 783) to push the election off until November and write the exact ballot language they wanted used.

News reports now indicate however that the legislature’s attempt to pull the ballot item may be too late and that a lawsuit challenging the move to November is “imminent”. Senate Democrats claim the resolution cannot force a change in the date of the election. The Secretary of State has directed counties to keep the item on the ballot for now.

Pennsylvania: House votes to pull measure to increase mandatory judicial retirement age off primary ballot; Senate to consider this week

Last week the Pennsylvania House approved a plan to pull a constitutional amendment to increase the state’s mandatory judicial retirement age off the primary ballot set to occur in a little over 2 weeks. HR 783 directs the Secretary of State to pull the plan that would extend judge’s retirement age from end-of-year-turn-70 to end-of-year-turn-75 and instead put it on the November general election ballot. The Senate has indicated it will decide this week whether to approve pulling the item (either in the form on HR 783 or its own SR 321).

At issue is ballot language the legislature says is confusing; the Senate filed suit to have the wording redone. With ballots already printed in 30-4o counties it is unclear what the impact of such resolution(s) might have.

Pennsylvania: legislature may pull measure to increase mandatory judicial retirement age off primary ballot; ballot language & lack of access at issue

I mentioned last year that Pennsylvania voters will get the chance in 2016 to decide whether or not to let judges stay on the bench until the end of the year they reach 75 (currently they must retire at the end of the year they hit 70). The vote was to take place this April 26 at the primary/spring elections, however a lawsuit by Senate Republicans challenged the ballot language. The litigation  appeared to push the time table for the election past April. Now two resolutions filed yesterday would make the delay official.

HR 783 and SR 321 both direct the Secretary of State to pull Proposed Constitutional Amendment 1 off the ballot for two reasons: 1) the ballot language and 2) the fact that, since the election would take place at the primaries, those not registered with a party would be unable to vote on the subject.

WHEREAS, More than 1 million Pennsylvania registered voters are not registered and enrolled as members of one of the two major political parties and therefore are not entitled to vote in the primary election of either of those political parties; and

Both resolutions solve any ballot language problem by providing the exact ballot language the legislature wants used

Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar year in which they attain the age of 75 years?

They also solve the no-access problem associated with primary elections by pushing it to the general election.

HR 783 is in the House Judiciary Committee, while SR 321 has been filed in the Senate Rules Committee.

Bans on court use of sharia/international law: GA House approves modified bill; Mississippi bill to ban sharia in divorce cases dies

The latest iterations of efforts to ban state courts from using foreign or international law in general, and sharia law in particular, appear to be stalling in most states. Since last month’s update there have been three pieces of activity, within only 1 bill moving.

Georgia: The House yesterday passed a heavily amended version of HB 171. As introduced, the bill provided

Any tribunal ruling shall be void and unenforceable if the tribunal bases its ruling in whole or in part on any foreign law that would deny the parties the rights and privileges granted under the United States Constitution or the Georgia Constitution.

As amended the bill adds to an existing list of items (O.C.G.A. 9-10-31.1) to be considered by a court when considering the issue of venue and the doctrine of forum non conveniens.

In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors

whether the forum outside of this state provides for impartial tribunals and procedures that are consonant to the requirements of due process of law as required by the Constitutions of the United States and the State of Georgia.

The bill was approved 165-0.

In Mississippi, which already enacted a foreign law ban in 2015, legislators attempted to enhance the existing law. SB 2400 would have allowed courts to award attorney’s fees to any party opposing recognition or enforcement of foreign law. SB 2595 specifically targeted the use of sharia law in divorce and child custody cases. Both bills died in committee.

Finally, a bill was introduced in Missouri (HB 2507) that dealt with the subject as well.

Full list of bills below the fold.

Continue reading Bans on court use of sharia/international law: GA House approves modified bill; Mississippi bill to ban sharia in divorce cases dies

Legislation on Veterans Courts: authorizing such courts vs. requiring their creation

Over the last several years courts and legislatures have shown an interest in creating “veterans courts”, specialized dockets or processes to handle criminal cases involving veterans and servicemembers. Last year both Tennessee (SB 711 / HB 854) and Utah (SB 214) enacted bills that authorized the creation of such courts in their respective states while Washington (SB 5107) passed a law encouraging their creation. In 2016, several bills are actively looking into this area.

Arizona: “shall establish”

In 2014 the legislature took an existing statute that authorized homeless courts and expanded it to include authorization for “veterans court and mental health court” divisions (HB 2457). This year there is a proposal to mandate the creation of such programs. HB 2554 of 2016 would provide such veterans courts must be established and that certain cases involving DUIs must be sent to such programs.

The presiding judge of the superior court in each county shall establish a veterans court to adjudicate cases filed in the superior court, and, if a veterans court is not established pursuant to section 22.601, to adjudicate cases filed in a justice court or a municipal court in the county….the presiding judge of the superior court shall establish the eligibility criteria for referral to the veterans court.  The criteria must include a mandatory referral requirement for any case that is filed against a veteran and that alleges only a violation of section 28.1383, subsection A, paragraph 1, 2 or 4.

HB 2554 is in the House Judiciary Committee

California: “shall develop”

As previously noted, three times the California legislature passed bills to require or force the state’s judiciary to create veterans courts and three times (by two different governors) the bills were vetoed, with notations that many courts already had such programs and that the decision to create new ones should be decided by the courts themselves. That hasn’t stopped a fourth round of legislation.

AB 863 would require every Superior Court individually, or together with a neighboring county, create veterans courts (“each superior court shall develop and implement a veterans court”).  The bill spells out who would be eligible and how the veterans court would operate.

AB 1672 would specifically require the creation of such courts in counties adjacent to San Luis Obispo that do not already have such programs as a regional, rather than a county, based veterans court program.

Both bills are pending in the Assembly Committee on Public Safety.

Iowa: “is established”

HB 68 and the identical SSB 3085 simply declare “A veterans treatment court is established in each judicial district…” The House version was carried over from 2015. The Senate version had a hearing before a subcommittee of the Senate Veterans Affairs committee yesterday (2/10).

Nebraska: requires pilot program

LB 915 establishes “the intent of the Legislature that the Supreme Court establish a three-year pilot project to create a veterans’ treatment court program for any county in which a city of the metropolitan class is located.” Media reports indicate Douglas County would be the pilot county. A hearing on the bill February 5 was held before the Senate’s Judiciary Committee.

LB 919, scheduled for that same hearing, would take the state’s existing statutes (24-1301 and 24-1302) authorizing “drug court programs and problem solving court programs” and amend the language to include “drug, veteran’s, mental health, driving under the influence, reentry, and other problem solving court programs”.

New Jersey: requires statewide or local pilot programs

AB 776 requires the creation of a pilot veterans court program in three specific counties (Atlantic, Cape May, and Cumberland). The bill is pending in the Assembly Military and Veterans’ Affairs Committee.

AB 2944 and the identical SB 1189 require the creation of a pilot veterans court program in two judicial districts (called in New Jersey vicinages) one of which must be Burlington County (Vicinage 3). The Assembly version has not been assigned to a committee; the Senate version is that chamber’s Judiciary Committee.

SB 307 creates a three-year statewide Veterans Treatment Court Pilot Program. The bill is in the Senate Military and Veterans’ Affairs Committee.

New York: required vs. authorized; transfer to other courts in judicial district

AB 2421 as amended and the identical SB 3914 as amended provide for an alternate treatment program for veterans accused of certain felonies. AB 2421 was approved by the Assembly Codes committee on June 15, 2015. It was sent back to the Codes committee at the start of the 2016 session. SB 3914 remains in the Senate Codes committee.

SB 3141 authorizes the state’s Chief Administrator of the Courts to create a veterans court in any criminal court in the state. The plan allows for criminal charges in lower courts within a county or in another county within a judicial district to be transferred to the veterans court. The plan was approved by the Senate Veterans, Homeland Security, and Military Affairs Committee on May 4, 2015. It was sent back to that committee at the start of the 2016 session.

SB 5677 authorizes the transfer of a criminal action to another criminal court in the same county or an adjoining county that has been designated a veterans treatment court by the chief administrator of the courts. The bill was passed by the full Senate on June 15, 2015 and the Assembly failed to take it up in the 2015 session. It was sent back to the Senate Codes committee at the start of the 2016 session.

SB 6595 also addresses the ability to transfer criminal cases from one court to another court that has a “problem solving court” defined as including a drug court, domestic violence court, youth court, mental health court, and veterans court. The bill is pending in the Senate Codes committee.

Pennsylvania: “shall establish…using available funds”

HB 887 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It also allows for two or more common pleas courts to operate such a court jointly. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the House Judiciary Committee since February 2015.

SB 517 provides the president judge of each common pleas court “shall establish…a veterans and service member court.” It does not appear to provide for joint operation of a court between two counties. The legislation also accounts for the existence of veterans courts already created by court rule, allowing them to continue as they already are. It has been pending in the Senate Judiciary Committee since February 2015.

Rhode Island: “[District Court] chief judge…shall create”; can’t be used to dismiss charges

HB 5850 and the identical SB 945 creates a 13th judge on the state’s District Court. It provides the chief judge of the District Court “shall create a veterans’ treatment calendar.” Moreover, it specifies that “Under no circumstances shall the defendant(s) be permitted to use this section  as  a  basis  for  a  dismissal  of  an  action,  as  this  section  is  enacted  for  the benefit  and  convenience of the  district court.” Both had committee hearings in 2015 and both were held over for the 2016 session.

Virginia: problem-solving courts in general vs. specific to veterans

HB 96 and the apparently identical SB 26 allow for the establishment of problem-solving courts in general, including veterans courts.

Problem-solving courts are specialized criminal court dockets within the existing structure of Virginia’s court system that enable the judiciary to manage its workload more efficiently. Under the leadership and regular interaction of presiding judges, and through voluntary offender participation, problem-solving courts shall address underlying offender needs and conditions that contribute to criminal behavior. Such needs and conditions shall include, but not be limited to, veteran’s status, mental illness, and societal reentry.

SB 317 copies much of the language from HB 976 and SB 26 but is limited to veterans courts only.

All three bills have been held over until the 2017 session by their respective committees.

West Virginia: “shall establish program” problem-solving courts in general

SB 48 provides the Supreme Court of Appeals shall establish a mental health, veterans and service members court program in the areas of the state with the highest need. Two such courts shall be established by July 1, 2016 with an additional two courts every year for a total of 10 programs by 2020.