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.

Wisconsin: bills that could effectively remove sitting chief justice from office moving at rapid clip

Two different efforts, both apparently directed at getting Chief Justice Shirley S. Abrahamson off the bench, are moving at a rapid clip in the Wisconsin legislation.

SJR 1 is a constitutional amendment to change the way the office of chief justice is chosen. Presently

The justice having been longest a continuous member of said court, or in case 2 or more such justices shall have served for the same length of time, the justice whose term first expires, shall be the chief justice. (Art. VII, Sec. 4)

AJR 1 and SJR 2, originally adopted as SJR 57 in the 2013/2014 session, would shift the process to one in which the 7-member court elects a chief justice from among themselves every two years. In order to appear on the April 2015 ballot (i.e. the next possible election) the legislature will have to approve it 70 days prior to the election: Tuesday, April 7, 2015 – 70 days = Tuesday, January 27, 2015. The amendment was apparently announced with only 24 hours notice in a Senate committee.

Meanwhile Senate and Assembly Democrats offered up amendments to specifically provide AJR 1 and SJR 2 do not apply retroactively, allowing Abrahamson to remain chief justice. Both failed on a party line votes, the Senate amendment on the Senate floor on January 20 and the Assembly one in committee. A second Senate amendment, this one to push the vote on the amendment to November 2016, is being debated at the time of this posting on the Senate floor. UPDATE: killed on party line vote.

SJR 1 is being debated now on the Senate floor.

AJR 1 is pending before the Assembly Rules Committee. That committee meets today (January 20) to set the agenda for Assembly floor action on January 22.

The second effort, this one a statutory one discussed here in December 2013, would create a mandatory judicial retirement age that could force Chief Justice Abrahamson off the court entirely. As I noted in December, since an amendment adopted in the 1970s the state’s constitution has not specified a mandatory judicial retirement age but leaves it to the legislature to decide (so long as it is not below age 70). The legislature hasn’t opted to pick an age until just last month, when a draft bill to that end was circulated setting the age at 70 or 75. A key question here, as in the case of AJR 1/SJR 2, is whether or not it will include a “grandmother clause” providing the new age will apply only to new justices/judges and not currently sitting ones.

Wisconsin becomes third state to consider tinkering with mandatory judicial retirement age to push judges off appellate courts

In the process of examining the issue changes to mandatory judicial retirement ages, I’ve noted that in many cases these are enshrined in state constitutions, making them effectively impossible to increase as voters have rejected such efforts. Now, however, there is a new pattern emerging to impose new, or decrease existing, retirement ages to remove currently serving appellate justices and judges, most recently in Wisconsin.

The first recent effort was in Kansas in May 2013. Members of the Kansas legislature, angry at the Kansas Supreme Court’s decisions proposed reducing the mandatory retirement age by statute from 75 (or more specifically the end of the term in which they hit 75) to the day that the appellate judge turned 65. I discussed that effort, formally introduced as HB 2415 in this post here.

The second effort was in Oklahoma in January 2014. While the state’s constitution allowed the legislature to set whatever age it wished for mandatory judicial retirement, the legislature never had. However members of the Oklahoma Senate, angry at the Oklahoma Supreme Court’s decisions striking down several laws proposed instituting for the first time such a retirement age. The bill (SB 1897) would have had the effect of removing almost all of the judges from the state’s Supreme Court and its other top court the Court of Criminal Appeals as discussed here. A similar bench-clearing bill (HB 3378) was introduced in the House. SB 1897 was approved by the Senate Pensions Committee but died before coming to a floor vote.

The third effort, alluded to just this week, is in Wisconsin. Like Oklahoma, the state’s constitution doesn’t specify a mandatory retirement age but leaves it to the legislature to decide (so long as it is not below age 70). A member of the Wisconsin legislature has begun circulating a draft bill to impose a mandatory retirement age on judges of 75 or 80. The purported target of the bill is 80 year-old Chief Justice Shirley Abrahamson. The Chief Justice is already the indirect target of another bill, proposed and passed last session, that could end her chief justiceship. The state’s constitution provides the longest serving justice is automatically chief justice, in this case Abrahamson. However, a constitutional amendment passed in 2014 and up for re-passage in the 2015/2016 session would allow the court’s members to pick the chief justice.

Some additional background.

Looking just at appellate judges 33 states have a mandatory judicial retirement age for appellate judges. Of these, 18 states have age specified in the state’s constitution: Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, and Wyoming.

The remaining states implicitly or explicitly grant the legislature some room for activity in this area.

  • Use of retirement systems/pensions to force out of office: Several states such as Arkansas, Kansas, South Carolina, and South Dakota have no specific constitutional provision for the mandatory retirement of the state’s judges. Instead, there are statutes that specify if a judge does NOT retire at a particular age they forfeit some/all/most of their retirement and pension. This system was relatively common in the early 1900s; California had a similar system of diminishing judicial benefits to entice retirement that was upheld as constitutional (Rittenband v. Cory, 159 Cal. App. 3d 410) but later abandoned (AB 1297 of 1991).
  • Explicit but limited delegation to the legislature: A few states grant the legislature a “range” within which to work. Oregon’s constitution sets the age at 75 but allows the legislature to lower it but never beyond age 70. Vermont’s constitution lets its legislature pick any age from 75 to 90 or if the legislature opted not to pick an age, 75 (the legislature set it at 90). The state of Washington’s constitution sets the mandatory retirement age at 75 but then lets the legislature lower it 70. Wisconsin allows the legislature to set any age for mandatory retirement that is above 70. So far, they have declined to do so.
  • Explicit unlimited delegation to the legislature: The legislatures of Illinois (Art. 6, Sec. 15), Indiana (Art. VII, Sec. 11), Iowa (Art. V, Sec. 18), Minnesota (Art. 6, Sec. 9), North Carolina (Art. IV, Sec. 6), Oklahoma (Art. VII, Sec. 11), and Utah (Art. VIII, Sec. 15), have effectively unfettered discretion to set a mandatory judicial retirement age as they see fit, however there are constitutional limits. The Illinois Supreme Court struck down its mandatory retirement statute on equal protection grounds – the way the law was drafted judges who hit the age of 75 were “automatically” retired, but a 75 year old who never served in judicial office could run for a judgeship and win (Maddux v. Blagojevich, 233 Ill. 2d 508 (2009)).

 

 

Changing civil jurisdiction thresholds – Part 5

This fifth and final item in a series of posts looks at legislative efforts to change the civil jurisdiction thresholds in state limited and general jurisdiction courts in the last decade. For a listing of all current civil jurisdiction thresholds, click here.

South Dakota to Wyoming below the fold.

Continue reading Changing civil jurisdiction thresholds – Part 5

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 7

This seventh and final installment looks at efforts to change state constitutional grants of rulemaking authority to courts of last resort, typically called the “supreme court”, or judicial councils.

My colleagues here at the National Center have a listing of all such provisions here.

South Dakota to Wyoming below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 7

North Carolina Senate budget changes way/structure courts can strike laws as unconstitutional; fourth state in 4 years to consider such an effort

North Carolina’s Senate budget passed early Saturday morning included a myriad of changes to statutes, but one item in particular stands out as a Gavel to Gavel reader pointed out to me via email. The Senate-approved budget changes the way the state’s trial courts can strike down a law as unconstitutional, this apparently in anger at a recent decision by a trial judge striking down a 2013 NC law that would strip teachers of tenure in exchange for raises.

Under Section 18B.16.(a) of SB 744 as approved by the Senate any challenge to a statute on constitutional grounds would have to be tried or determined by panels of 3 Superior Court judges. The bill is based on a 2003 law that allows for challenges of redistricting lines to be heard by a three-judge panel of the Superior Court of Wake County. This new version, however, goes beyond Wake County and requires that the three judge panel be selected by the Chief Justice from certain parts of the state (1 from First or Second Judicial Division, 1 from Seventh or Eighth, 1 from Third, Fourth, Fifth, or Sixth). Media coverage of the proposal can be found here.

As I noted when this came up in the context of Oklahoma, no state provides for three-judge panels to address the issue of striking ANY law as unconstitutional; where they do exist they usually are created to address a particular, limited subject such as redistricting (NC & WI) or school funding (KS). My review of those laws is here.

North Carolina is now the fourth state in 4 years to try to change the ways judges can strike down state laws or rule against the legislature.

  1. Oklahoma (2014)- HB 2686 would require a challenge to the constitutionality of any state statute be heard by a panel of the state’s main trial court (District). The panel would be made of “at least three district judges”: the original district judge assigned and “additional judges assigned randomly” to the case. The House approved the bill 55-33 in March 2014 but the Senate Judiciary Committee rejected it in April.
  2. Michigan (2013)- SB 652 began with anger by the legislature over decisions by the state’s Court of Claims (a specially designated judge of the Ingham County Circuit Court, where the capital is located) over Michigan’s emergency manager and right-to-work laws. Under SB 652 as enacted in the constitutionally minimum amount of time the Court of Claims is no longer an Ingham County Circuit Court Judge but 4 judges of the state’s Court of Appeals chosen by the Chief Justice. Details here and here.
  3. Wisconsin (2013/2014)- As introduced, AB 161 provided that a trial judge/court could declare a law unconstitutional but any order by the trial court prohibiting enforcement was automatically stayed and the law allowed to remain in effect if the state filed a petition for interlocutory review was filed within ten days after the entry of the order. It derived from a case in which a Dane County judge struck down a state law (Act 10) the weakened collective bargaining in the state. What was eventually enacted provided that “If a circuit court or a court of appeals enters an injunction, a restraining order, or any other final or interlocutory order suspending or restraining the enforcement of any statute of this state, the injunction, restraining order, or other final or interlocutory order is immediately appealable as a matter of right.”
  4. Oklahoma (2012)- SJR 84 was a constitutional amendment that would have stripped the state’s Supreme Court of the power to strike down any law passed by the legislature as unconstitutional. Instead, the legislature itself would create an “Ad Hoc Court of Constitutional Review” in such cases. It was filed in the Senate Judiciary Committee but proceeded no further.
  5. Wisconsin (2011)- angry that challenges to state laws were being heard and struck down by judges of Dane County, the Wisconsin legislature enacted SB 117. Under it, actions in which state government is the sole party may be filed in any county in the state. Appeals must be heard in a Court of Appeals district  other than the one in which the case was filed. Moreover, the appellant (the state, in cases where a law is struck down at the trial level) would be allowed to pick the Court of Appeals district they want the appeal heard in.

 

 

 

Wisconsin Democrats try to force public financing of judicial campaigns bill out of committee

I’ve mentioned in the past the saga of public financing for judicial elections in Wisconsin. In sum, the program for publicly financed supreme court races lasted a little less than 2 years (2009-2011) and was killed off. Since then several bills have been introduced to bring the program back in some form of fashion (detailed coverage here, here, and here). All have effectively been bottled up in committee.

Democrats in the lower chamber (Assembly) tried to have one such bill removed from its committee Tuesday. AB 298 would provide public financing to candidates seeking various partisan state offices except district attorney, plus the superintendent of public instruction and justices of the supreme court. It had been assigned to the Joint Committee on Finance in August 2013 and had so far been left there. All 39 Assembly Democrats voted to remove the bill from the committee, while 59 out of 60 Republicans voted against (1 member did not vote).