I noted two weeks ago that when Oklahoma’s Speaker submitted his legislative agenda with respect to the courts that it included a bill for term limits for the Court of Civil Appeals only (HB 3379). It was notable in that much of the Speaker’s prior commentary had been about his objections to the state’s supreme court. Last year a move was made to eliminate merit selection for the Kansas Court of Appeals, but the inability to do so for the Kansas Supreme Court. A year before that, anger over an Arizona Supreme Court decision prompted a member of the Arizona Senate to try and reduce the size of the Court of Appeals, which never even heard the case in question, from 22 down to 6. All this seems to suggest a pattern of legislative activity emerging with respect to intermediate appellate courts (IACs), much of which seems focused on statutorily created IACs.
First, some history.
IACs are relatively new; most states simply didn’t have them prior to 1965 and to this day 10 states still do not have an IAC (that may go down to 9 if Nevada voters approve an IAC in November 2014). In making revisions to their state constitutions, some states during this time declined to create an IAC, instead giving the legislature the option at some point in the future to create such courts by statute if the need arose.
As a result of the 45 IACs in 40 states (Alabama, Indiana, New York, Pennsylvania and Tennessee have two IACs) 16 are created via statutory provision alone. As such, unlike the super-majority + vote at the ballot box needed to alter courts of last resort, IACs are in a more vulnerable spot. Some rely entirely on statute for their method of selection, terms, and retirement. Others, such as Massachusetts, may rely on statute for their creation but once created the state constitution sets the parameters in these three areas.
Details regarding those 16 IACs below the fold.
|Alaska||Court of Appeals||Statute: 22.07.070||Statute: 15.35.053||Constitution: Art. IV, Sec. 11 applies to all “justices and judges”|
|Arizona||Court of Appeal||Constitution: Art. VI, Sec. 37 applies to any “intermediate appellate court of record”||Statute: 12-120.01||Constitution: Art. VI, Sec. 20 & Sec. 39|
|Colorado||Court of Appeals||Constitution: Art. VI, Sec. 25 applies to selection of judge of any “court of record”||Statute: 13-4-104||Constitution: Art. VI, Sec. 23 applies to “a justice or judge of a court of record”|
|Idaho||Court of Appeals||Statute: 1-2404||Statute: 1-2404||N/A (although Art. V, Sec. 28 of the state constitution allows for mandatory judicial retirement age, state does not have one)|
|Indiana||Tax Court||Statute: 33-26-2||Statute: 33-26-2||N/A (although Art. VII, Sec. 11 of the state constitution allows for mandatory judicial retirement age, state does not have one for Tax Court)|
|Iowa||Court of Appeals||Statute: 46.14A||Statute: 46.16||Statute: 602.1610|
|Kansas||Court of Appeals||Statute: 20-3002||Statute: 20-3006||Statute: 20-2608(a)|
|Massachusetts||Appeals Court||Constitution: Part II, Chapters II and III||Constitution: Art. 1, Part 2, Ch. 3||Constitution: Art. 1, Part 2, Ch. 3|
|Mississippi||Court of Appeals||Statute: 9-4-5||Statute: 9-4-5||N/A: there is no mandatory retirement age|
|Oregon||Court of Appeals||Statute: 2.540||Statute: 2.540||Constitution Art. VII (Amended), Sec. 1a provides it can be no lower than 70. Statute 238.525 sets at 75.|
|Oklahoma||Court of Civil Appeals||Statute: 20 Okl. St. § 30.1||Statute: 20 Okl. St. § 30.15||N/A: there is no mandatory retirement age, although the Constitution Art. VII, Sec. 11 allows the legislature to set one|
|Tennessee||Court of Appeals||Statute: 17-4-109||Statute: 16-4-103||N/A: there is no mandatory retirement age|
|Tennessee||Court of Criminal Appeals||Statute: 17-4-109||Statute: 16-5-103||N/A: there is no mandatory retirement age|
|Utah||Court of Appeals||Constitution: merit selection under Art. VII, Sec. 8 applies to any “court of record.”||Constitution: 6-year term under Art. VII, Sec. 9 applies to any “court of record.”||Statute: 49-18-701|
|Virginia||Court of Appeals||Constitution: Art. VI, Sec. 7 applies to judges of all courts of record||Constitution: Art. VI, Sec. 7 applies to judges of all courts of record||Statute: 51.1-305|
|Washington||Court of Appeals||Statute: 2.06.070||Statute: 2.06.070||Statute: 2.06.100|