Utah: bill to end use of race, gender, and other forms of diversity for judgeships clears House

The Utah House this week approved a bill to remove the power of an executive branch agency to set evaluation criteria for the state’s Judicial Nominating Commission (JNC), discussed here. The Commission on Criminal and Juvenile Justice (CCJJ) sets evaluation criteria for the JNC and had at one point included diversity as one criteria.

HB 93 was filed with an eye towards prohibiting the Commission from factoring in diversity in considering nominees for judgeships. Opponents claimed “diversity considerations take us away from choosing judges on the basis of merit” and that the consideration of race or gender was illegal. Opponents argued that the state’s judges did not reflect the diversity of the state’s population.

UPDATE: An amendment to the bill added on the floor specifies exactly what evaluation criteria are allowed to be used, and diversity is absent. What is included:

  1. legal knowledge and ability
  2. judicial temperament
  3. training
  4. professional experience
  5. integrity
  6. impartiality
  7. work ethic
  8. financial responsibility
  9. public service
  10. ability to perform the work of a judge

HB 93 is now in the Senate Rules Committee.

Utah: House member “diversity considerations take us away from choosing judges on the basis of merit.”

Who gets to set the criteria for the Utah Judicial Nomination Commissions when evaluating judicial nominees? Under a bill (HB 93) recently passed by the House Government Operations Committee that answer might be the legislature alone.

First, some background.

Prior to 2010, the state’s Judicial Council enacted “evaluation criteria for the selection of judicial nominees.” In 2010 that power was transferred to the executive branch’s Commission on Criminal and Juvenile Justice (CCJJ) as part of HB 289 although the Judicial Council was to be “consulted” regarding the rules.

The criteria now include:

(a) integrity;

(b) legal knowledge and ability;

(c) professional experience;

(d) judicial temperament;

(e) work ethic;

(f) financial responsibility;

(g) public service;

(h) ability to perform the work of a judge; and

(i) impartiality.

Diversity was struck last year after lawmakers expressed concerns.

Under HB 93 neither the Judicial Council nor the Commission on Criminal and Juvenile Justice would have the power to set “evaluation criteria for the selection of judicial nominees.”

During debate, the author indicated his concerns over efforts at attaining a diverse bench in the state (starting at 44:10)

My concern is that when CCJJ adds gloss and additional considerations to what we have in the statute they necessary drift away from and dilute the standards that we have set up to find the best judges based only on merit. As we’ve talked about, the diversity considerations take us away from choosing judges on the basis of merit.

Opponents were concerned that the judicial nomination processes “wasn’t broke” and therefore this bill was unnecessary.

After a motion to hold the bill in committee failed, it was approved 5-4 and sent to the full House.

Utah: bill heading to governor requires judges be law school graduates, but doesn’t require they be admitted to practice law; Judicial Council must now approve new Justice Court positions in larger counties

A plan to require Justice Court judges in Utah’s largest counties graduate law school but not have to be admitted to the practice of law has passed its final legislative hurdle and is on its way to the governor.

HB 160 discussed here provides in operative part.

Effective May 10, 2016, a justice court judge is not required to be admitted to practice law in the state as a qualification to hold office but in counties of the first and second class, a justice court judge shall have a degree from a law school that makes one eligible to apply for admission to a bar in any state

This avoids a constitutional amendment that prohibits the legislature from requiring admission to the practice of law as a requirement for these judgeship.

Judges of courts not of record shall be selected in a manner, for a term, and with qualifications provided by statute. However, no qualification may be imposed which requires judges of courts not of record to be admitted to practice law.

The Senate approved the bill with several additional amendments that the House later agreed to

  • When a vacancy occurs if there are not at least three people who apply to the local justice court nomination commission that have graduated law school, the position will be re-advertised and the law-school-graduate requirement and residency rules waved. Moreover, the Administrative Office of the Courts would be required to notify every attorney in that county and adjacent county of the open judicial position.
  • Political subdivisions in counties of the first and second class would be placed under restrictions in terms of creating and eliminating judgeships.
    • Political subdivisions may only add a new justice court judge if the Judicial Council, after considering the caseload of the court, approves creation of the position.
    • Political subdivisions with multiple justice court judges may only eliminate a judgeship if a) the weighted caseload per judge is lower than 0.60 as determined by the Administrative Office of the Courts and b) only remove the position at the end of a judge’s term of office.

Utah: bill requires judges be law school graduates, but doesn’t require they be admitted to practice law; state constitutional language at issue

Is there a distinction between requiring a judge graduate from law school vs. a judge who is “admitted to the practice of law”? In Utah, there might be under a bill (HB 160) that is heading towards passage.

As previously noted, when Utah the state rewrote its Judiciary Article in 1985 Supreme Court Justices and all judges of “courts of record” were required to be “admitted to practice law in Utah.” However, judges of courts not of record were given a specific constitutional exemption

Judges of courts not of record shall be selected in a manner, for a term, and with qualifications provided by statute. However, no qualification may be imposed which requires judges of courts not of record to be admitted to practice law.

HB 160 as introduced required admission to the practice of law for justice court judges, subject to a constitutional amendment repealing this section (HJR 1).

HB 160 as amended leaves the constitutional provision, but requires that justice court judges in larger counties (first and second class) graduate from law school. No mention is made of “admitted to the practice of law.”

Effective May 10, 2016, a justice court judge is not required to be admitted to practice law in the state as a qualification to hold office but in counties of the first and second class, a justice court judge shall have a degree from a law school that makes one eligible to apply for admission to a bar in any state

Opponents argue that this provision violates at least the spirit of the state constitution and that it is a loophole. Proponents argue the provision will help improve the processes in the justice courts.

HB 160 was approved 3-1 yesterday (March 2) by the Senate Judiciary Committee. If approved by the full Senate it would have to go back to the full House for approval with Senate amendments added in committee.

OK: state supreme court has struck down several laws as unconstitutional 7-2, so legislator wants to force court to be 9-0 or 8-1 in the future

Recently the Oklahoma Supreme Court has struck down several laws passed by the state’s legislature on 7-2 votes. Of particular note was the July 2015 decision by the court that resulted in the removal of a Ten Commandments display from the State Capitol Grounds as well as a 2013 ruling that struck down the legislature’s tort reform package for violating the state constitution’s “single subject” rule.

The result: a 2016 proposal to require at least an 8-1 or 9-0 vote to overturn state laws.

Under HJR 1063 as prefiled for the 2016 session

in any case in which the constitutionality of legislation enacted by the Legislature is at issue, the vote of the Supreme Court must be unanimous or there must not be more than one dissenting vote for the legislation to be declared unconstitutional. If the vote of the Supreme Court is not unanimous and there is more than one dissenting vote , the legislation shall not be held to be unconstitutional.

Interestingly, the bill does not apply to the state’s other court of last resort (Court of Criminal Appeals).

Only Nebraska (5/7) and North Dakota (4/7) require specific vote totals to find a law unconstitutional by the state’s court of last resort. A few states have quorum-minimums that require a majority of all justices of the court (as opposed to just a majority of the panel of justices hearing the case) are needed to strike down a law.

Arizona

The state’s constitution provides the Supreme Court may sit together (“in banc”) or in panels of 3 judges, however “the court shall not declare any law unconstitutional except when sitting in banc.” (Art. VI, Sec. 2)

Nebraska

The state’s constitution provides “No legislative act shall be held unconstitutional except by the concurrence of five [out of seven] judges.” (Art. V, Sec. 2)

This came up most recently in 2015 regarding a law that allowed “major oil pipeline” carriers to bypass the  regulatory procedures of the Public Service Commission.  (Thompson v. Heineman, 289 Neb. 798; 857 N.W.2d 731). Four judges ruled 1) appellees had standing and 2) the statute in question was unconstitutional. Three dissenting judges found that the five-judge requirement applied to both the questions of standing/jurisdiction and the merits and because there were not 5 votes on standing/jurisdiction the case should have been dismissed.

North Dakota

The state’s constitution provides “the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the [five] members of the court so decide.” (Art. VI, Sec. 4)

This came up most recently in a 2014 case regarding a 2011 statute that addressed medication-induced abortions. (MKB Mgmt. Corp. v. Burdick, 2014 ND 197; 855 N.W.2d 31) The court fractured in a unique pattern

  • Two justices (one regular justice and a trial judge filling in due to a vacancy on the court) found the statute in question violated the ND constitution. Two justices found the statute constitutional under the ND constitution. One justice found the question did not need to be decided under the ND constitution. (2-2-1)
  • Three justices (two regular justices plus the fill-in trial judge) found the statute also violated the Federal constitution. One justice found the statute constitutional under the Federal constitution. One justice found the question was not properly before the court.  (3-1-1)

The court ultimately found “The effect of the separate opinions in this case is that [the statute] is not declared unconstitutional by a sufficient majority…”

Utah

The state’s constitution provides “The Supreme Court by rule may sit and render final judgment either en banc or in divisions. The court shall not declare any law unconstitutional under this constitution or the Constitution of the United States, except on the concurrence of a majority of all [five] justices of the Supreme Court. (Art. VIII, Sec. 2)

Virginia

The state’s constitution is similar to Utah’s: “The Court may sit and render final judgment en banc or in divisions as may be prescribed by law…[N]o law shall be declared unconstitutional under either this Constitution or the Constitution of the United States except on the concurrence of at least a majority of all justices of the Supreme Court.” (Art. VI, Sec. 2)

 

Utah legislature the latest to try and end non-attorney judges; effort requires amendment to state’s constitution

I mentioned the situation in Indiana earlier today (2015 law requires all newly elected Town and City judges to be attorneys, 2016 bill wants to go back to allowing non-attorney judges). Now Utah might be moving to ending its non-attorney judges as well.

First, some background.

From 1895 to 1945 Supreme Court justices and District Court judges were required to “be a member of the bar, learned in the law…” This was later amended in 1945 to “an active member of the bar in good standing [and] learned in the law…

When the state rewrote its Judiciary Article in 1985 Supreme Court Justices and all judges of “courts of record” were required to be “admitted to practice law in Utah.” However, judges of courts not of record were given a specific constitutional exemption

Judges of courts not of record shall be selected in a manner, for a term, and with qualifications provided by statute. However, no qualification may be imposed which requires judges of courts not of record to be admitted to practice law.

And there the matter has remain for effectively 30 years until now. HJR 1 of 2016 would remove the exemption and provide judges of courts not of record would have to be attorneys. Their age, residency and other requirements would be identical to courts of record, except for the Supreme Court (must be at least 30).

Judges of courts not of record shall be at least 25 years old, United States citizens, Utah residents for three years preceding selection, and admitted to practice law in Utah, and shall have any other qualifications provided by statute.

HJR 1 has been prefiled for the 2016 session.

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 provision.

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 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.