South Carolina: legislators could elect themselves directly into judicial office under bill approved in committee yesterday

South Carolina is one of two states (Virginia is the other) where the legislature elects judges. Under existing law (2-19-70(A)) currently serving members of the legislature are prohibited from being considered for election and retired/former members are prohibited from consideration for 1 year after the end of their service. That restriction however could fall under a bill approved by the House Judiciary Committee yesterday.

HB 3979 as introduced on April 14 (text here) and co-sponsored by 91 out of 124 members of the House dealt with the question of the state’s Judicial Merit Selection Commission. Currently the Commission only sends the top 3 names to the legislature for a final vote. Under the bill as introduced all qualified candidates, not just the top 3, would be released by the Commission. This isn’t the first time such a proposal has come up; such proposals have been floated since at least HB 3414/SB 890 of 1999.

What made HB 3979 as amended interesting is what the amendment includes (text here): an exemption to the existing one-year-wait rule if the office being sought is “an at-large judicial office.” In South Carolina, Circuit Judges may be elected by the legislature to “at-large” positions allowing them to serve anywhere in the state. New provisions underlined, repealed provisions stricken.

(A) No A member of the General Assembly may not be elected to a judicial office while he is serving in the General Assembly nor shall that person be elected to a judicial office for a period of one year after he either:

(1) ceases to be a member of the General Assembly; or

(2) fails to file for election to the General Assembly in accordance with Section 7-11-15.

Provided, however, a member of the General Assembly is not ineligible to be elected to an at-large judicial office.

HB 3979 could now go directly to the House floor.

Changes to mandatory judicial retirement ages: Virginia plan may fall apart over what judges get the increase; Oregon Senate unanimously approves repeal; dead in Maryland; small change moving in North Carolina; debated in Massachusetts

Since last month’s update on the subject of mandatory judicial retirement age changes there’s been several developments. The biggest stumbling block: which judges should get the increase in the age?

Maryland

The Senate approved 47-0 a plan (SB 847) to increase the mandatory retirement age for judges from 70 to 73 (original bill called for 75) on March 24. The Senate plan would have applied to all judges after adoption of the amendment. The House, however, had various ideas on how this would impact current judges. The House Judiciary Committee approved amendment 172916/1 which would have allowed any judge that

reaches the age of seventy years before the date that the judge is eligible to be elected, appointed, or reappointed

to stay on to 73 or the end of their current term with the consent of the governor. A later floor amendment (393229/1) added the word “re-elected”

reaches the age of seventy years before the date that the judge is eligible to be elected, re-elected, appointed, or reappointed

The changes occurred on April 9, just days before the legislature adjourned sine die. As a result, the effort failed this year.

Massachusetts

The judges of Massachusetts only fell under the state’s mandatory judicial retirement age in the 1970s (Amendment LVII adopted in 1972)

[U]pon attaining seventy years of age said judges shall be retired.

Starting in 2009 there have been efforts to increase this age to 76. The first two attempts (HB 1640 of 2009/2010 & HB 1826 of 2011/2012) were approved by the Joint Committee on the Judiciary but proceeded no further. HB 68 of 2013/2014 saw rejection by the committee. The bill is now back up as HB 1609 of 2015/2016 and was heard before the Joint Committee on April 15.

North Carolina

The House approved 116-0 on March 25 a bill that would provide a minimal extension to the state’s judicial retirement age. Currently judges must retire on the last day of the month in which they reach 72. Under HB 50 as approved they may serve last day of the year they reach 72.

A counter proposal (HB 205) to extend this to the last day of the year they reach 75. Was approved by the House Judiciary IV committee on March 18 but has remained in locked up in the House Pensions and Retirement committee.

Oregon

On April 15 the Oregon Senate approved 30-0 a plan to eliminate the state’s mandatory retirement age or, to be more precise, repeal the state constitutional provision allowing the legislature to set such an age. SJR 4 would eliminate language from the state constitution that

[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: 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.

The constitutional amendment is now pending on the House Speaker’s desk awaiting committee assignment.

Virginia

After 9 years of trying, a plan to increase the retirement age for at least some judges in Virginia passed the House and Senate, but the decision to increase for some judges and not others may result in a veto by the governor.

At issue under HB 1984 and SB 1196 was what judges should get the increase from 70 to 73. The House/Senate compromise approved provided that

  • all appellate judges effective July 1, 2015 would get the increase to 73
  • trial judges elected or appointed after July 1, 2015 would get the increase to 73
  • trial judges elected or appointed prior to July 1, 2015 would still have to retire at 70

The governor, however, issued a “recommendation” to eliminate the three-tired plan (Virginia governors can return a bill without a veto to the legislature “with recommendations for their amendment“). The Senate voted in favor of eliminating the three-tired plan 31-8. The House rejected it 27-63. Local media reports indicate the unamended bill will now go back to the Governor as early as today (Friday) for him to sign or veto.

Continue reading Changes to mandatory judicial retirement ages: Virginia plan may fall apart over what judges get the increase; Oregon Senate unanimously approves repeal; dead in Maryland; small change moving in North Carolina; debated in Massachusetts

Three states voted Tuesday on increases to mandatory judicial retirement: effort dies 49-21 in Arkansas House when 28 members fail to vote; amended versions advance in AL & MD

The efforts to increase mandatory judicial retirement ages have seen a great deal of activity in the last 24 hours.

  • Alabama’s House approved 64-35 with 1 abstention a plan to increase their age from 70 to 72 after members objected to the original proposed increase to 75. The Alabama provision is not a hard and fast retirement age; instead it addresses the maximum age a judge can be in order to be elected or appointed to a judgeship.
  • Maryland’s Senate Judicial Proceedings Committee effectively had the same idea as their Alabama House counterparts, reducing a planned increase in the mandatory judicial retirement age from 70 to 75 down to 73 instead. The amended plan passed on a 7-3 vote.
  • 28 Arkansas House members left the floor or failed to vote and 2 voted “present” when that state’s effort to increase the retirement age from 70 to 72 came up for a vote. As a result, despite receiving a 49 yes vs. 21 no vote, the bill failed under a provision of the Arkansas constitution that requires a majority of the entire body (51/100) to approve a bill.

Details of all increase efforts below the fold.

Continue reading Three states voted Tuesday on increases to mandatory judicial retirement: effort dies 49-21 in Arkansas House when 28 members fail to vote; amended versions advance in AL & MD

22 bills to increase or eliminate mandatory judicial retirement ages: moving in IN, NJ, OR, PA, VA; killed in UT & WY

The wave of interest in increasing or eliminating the mandatory retirement ages for judges continues apace in the state legislatures. Of the seven states that have voted on these proposals:

  • 1 state (Virginia) has passed an increase and is awaiting action by the governor
  • 2 states (Indiana, Pennsylvania) have seen at least one chamber pass the proposal
  • 2 states (New Jersey, Oregon) have seen committee approval
  • 2 states (Utah and Wyoming) saw their efforts killed

Details below the fold.

Continue reading 22 bills to increase or eliminate mandatory judicial retirement ages: moving in IN, NJ, OR, PA, VA; killed in UT & WY

Arizona: new plan to stack supreme court introduced and clears committee in hours; over a dozen efforts to change supreme court composition in last decade

A plan to expand the Arizona Supreme Court from 5 to 7 members was added at the last minute to a bill in the House Judiciary Committee yesterday. HB 2076 as introduced had nothing to do with the state’s supreme court. An amendment to that bill however deleted the bill’s contents and replaced it with an expansion of the Supreme Court from 5 to 7 members. It was approved on a 4-2 party-line vote.

This isn’t the first time an effort with little to no notice has been made to expand the Arizona Supreme Court. In 2013 it was the Senate Judiciary Committee that tried to advance such a proposal that was ultimately rejected when the Chief Justice of the Supreme Court herself appeared in the committee and explained the Supreme Court was handling its case disposition time handily. The main sponsor countered that “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.”

This marks over a dozen instances in the last several years of members of the legislature seeking to increase, or in some cases reduce, the size of their state supreme court/court of last resort. Details below the fold.

Continue reading Arizona: new plan to stack supreme court introduced and clears committee in hours; over a dozen efforts to change supreme court composition in last decade

Bans on court use of sharia/international law: new year means two dozen new bills

The new legislative year means a new wave of legislation that purport to ban the use by state courts of international or foreign law in general and sharia law in particular. In some instances, such as Oregon, this legislation has never previously been introduced in prior years.

The general pattern of the legislation this year has been to avoid the use of the word “sharia”, although 4 bills continue to specifically use the term. This appears to be done primarily in light of a federal court decision striking down a 2010 Oklahoma constitutional amendment that had used the word as being discriminatory for picking on sharia, and by extension Islam, in particular a decision upheld by the Tenth Circuit in 2012 and subsequent permanent injunction issued in August 2013.

The other aspect has been to specify that the bill, if enacted, would not apply to:

  1. harm or affect the right to contract
  2. corporations
  3. laws and court decisions of Native American tribes
  4. ecclesiastical matters/religious organizations

So far the bills have moved in Indiana (Senate) and Mississippi (House), while the Virginia version was withdrawn by the sponsor.

Details below the fold.

Continue reading Bans on court use of sharia/international law: new year means two dozen new bills

South Carolina: House approves plan to create a statutory Commission on Judicial Conduct; diminishes Supreme Court’s power to name members

An ethics reform package (HB 3184) passed by the South Carolina House last week would recreate the state’s Commission on Judicial Conduct in statute and diminish the state supreme court’s power to name the Commission on Judicial Conduct’s members.

The current 26 member Commission on Judicial Conduct is created by Rule 502, South Carolina Appellate Court Rules and chosen entirely by the Supreme Court. The new 24 member Commission would have only 1/3 chosen by that court.

  • 8 chosen by the Supreme Court, including 6 judges
  • 4 chosen by the Senate (2 attorneys, 2 non-attorneys)
  • 4 chosen by the House (2 attorneys, 2 non-attorneys)
  • 8 chosen by the Governor, (4 attorneys, 2 non-attorneys)

Aside from the massive shakeup in the membership, HB 3184 provides, “the commission’s organization, authority, powers, duties, and responsibilities are delineated in Rule 4, [Rules for Judicial Disciplinary Enforcement], Rule 502, [South Carolina Appellate Court Rules].” Moreover, it does provide that “All judicial misconduct investigations, inquiries, hearings, and accompanying documents are confidential and only may be released pursuant to this subsection” and makes such an unauthorized release a crime.

HB 3184 is now pending in the Senate Judiciary Committee.

 

 

 

South Carolina: Judges recognizing or upholding same sex marriages are to be automatically removed from case, denied pay

As the question of whether the U.S. Supreme Court will take up a case, or any case, involving same sex marriage remains pending, South Carolina’s legislature is set to take the question out of the hands of its state’s judges under threat of automatic removal from the case

Under HB 3022 as introduced,  “No state or local taxpayer funds or governmental salaries may be paid for an activity that includes the licensing or support of same-sex marriage.” and “No state or local governmental employee officially shall recognize, grant, or enforce a same-sex marriage license.”

The court specific elements are two fold. First, state courts would be required to automatically dismiss any case challenging the law and the plaintiffs would be forced to pay the defendants (“A court of this State shall dismiss a legal action challenging a provision of this section and shall award costs and attorney’s fees to a person or entity named as a defendant in the legal action.”)

Second, if a judge did strike down the law and/or refuse to dismiss the challenge at the outset, he or she would be “disqualified from office pursuant to Section 19, Article V of the South Carolina Constitution, 1895.” That provision reads

The General Assembly shall specify the grounds for disqualification of Justices and judges to sit on certain cases. The General Assembly shall also provide for the temporary appointment of men learned in the law to sit as special Justices and judges when the necessity for such appointment shall arise.

HB 3022 has been filed in the House Judiciary Committee.

South Carolina Legislative Year in Review: veterans courts created and administered by prosecutors

Law

HB 3014 Permits creation of veterans treatment courts in each judicial circuit by the circuit prosecutor to be administered by the prosecutor.

SB 405 Provides judiciary and not state ethics commission to handle complaints against administrative law judges for possible violations of the Code of Judicial Conduct in the same manner as complaints against other judges.

South Carolina Senate: numerous bills prefiled to change or end legislature’s election of judges in the state

South Carolina is one of only two states (Virginia is the other) where judges are chosen by the legislature alone. In the case of South Carolina, this applies to the state’s top three courts (Supreme, Court of Appeals, Circuit) and one of the five lower courts (Family). In 1997 a “Judicial Merit Selection Commission” made up mostly (6/10) of legislators was created to recommend to the legislature names to fill vacancies. In recent years the practice of legislative-election has come under criticism and the first batch of bills prefiled in the South Carolina Senate for the 2015 sessions reflects some of that criticism.

No more legislators-turned-judges

SB 1 and SB 74 all seek out broad ethics reforms, including campaign contribution reforms. One element in both bills would prohibit a legislator from being considered for a judgeship within two years of their leaving office; currently a legislator must be out of the General Assembly for at least one year before being considered. SB 104 goes even further and extends the time limit to 20 years.

No more “pledged” legislators

Another practice that has been developed over the years has been “pledging” where a legislator even before the Judicial Merit Selection Commission has had a chance to operate and make their recommendation effectively comes out in favor of a particular candidate. SB 1 and SB 74 would prohibit pledging; SB 247 would specifically required a delay of seven legislative days after the Commission’s report before candidates could ask or legislators could give their pledged support.

Outright ending legislative elections

A third batch of changes would simply end the practice of legislative appointment. SB 111 (constitutional amendment) and SB 112 would end the practice legislative election, terminate the Judicial Merit Selection Commission, and instead allow for the Governor to appoint with the consent of the Senate individuals to the four courts currently using legislative elections.

All the bills have been forwarded onto the Senate Judiciary Committee.