Election 2012: The close calls and why non-votes killed Hawaii’s Amendment 2 & Wyoming’s Amendment C

Alabama’s Local Questions: 2 narrow losses, 1 win

I’ve mentioned before the constitutional quirk in Alabama whereby changes or increases in court filing fees required an amendment in the state’s constitution in many instances, albeit amendments voted on by only the county affected. The 3 items on the ballot in November 2012, all of which would have increased courts fees for various court or law library needs, all failed. In Marion County it was no contest: the proposal failed 46-54. The other two narrowly lost; the Covington County Local Amendment failed 49.58 to 50.42%, a margin of 88 votes. Similarly Etowah County Local Amendment 2 only failed 49.71 to 50.29%, a margin of 51 votes. While it is not clear the legislature will take these matters up again, the narrow losses are interesting.

Hawaii Amendment 2 failed 49.6% to 39.9% with 10.4% not voting

The Amendment would have authorized the use of judges forced into retirement for reassignment/recall in 3-month stretches. However, the state’s constitution requires “a majority of all the votes tallied upon the question, this majority constituting at least fifty per cent of the total vote cast at the election” making a non-vote the equivalent of a no. The breakdown was 216,655 in favor with 174,190 opposed and 45,513 blank votes. If the blanks had gone 5% in favor to 95% against Amendment 2, it would have won 51-49%.

Wyoming Constitutional Amendment C failed 48.99% to 35.32%, 10.52% under votes

Like Hawaii’s Amendment 2, Wyoming’s Amendment C dealt with the “internal mechanics” of the judiciary. In Wyoming’s case, the amendment would have eliminated provision that district court commissioners appointed by the court may act only 1) in the absence of the district judge from the county or 2) where it is improper for the district judge to act. Like in Hawaii, the amendment required a majority of all ballots cast in the election. With 250,701 ballots cast, the amendment needed at least 125,531 but got only 122,824 versus 88.562 against and 26, 419 under votes/non-votes. If the under votes had gone 10% in favor to 90% against Amendment C, it would have won 51-49%.

Election 2012: The losers lost big and what the losses portend for 2013/2014

The 2012 election saw several attempts to “rein in” or otherwise assert control of the judiciary by the other branches of government. The four key amendments on the ballot not only all failed,  but failed in stunning fashion when compared to both other items on the ballot and historically.

Arizona Proposition 115 failed 27%-73%

The amendment had a variety of pieces: increased terms and mandatory retirement age, giving governor more power over the state’s merit selection commissions and requiring the commissions give governors more names to pick from, etc. What makes the Prop 115 loss even more interesting is that it was the single biggest loss among the 9 propositions on the ballot that night: the other losing propositions had closer tallies. It also failed to take a single county (closest was Apache where it got 32% of the vote: 6,976 to 14,835).

Proposition % yes
115 27
120 32
121 33
204 36
116 44
208 51
117 57
119 62
114 80

Florida Amendment 5 failed 37%-63%

Like Arizona it was an effort to tinker with the state’s merit selection system (plus rule making authority of the state supreme court) and touted as a way to “rein in judges”. Like Arizona it not only lost outright, but was the worst performer of the night in the state. It was able to carry in a single county: Sumter voted for it 52-48 (27,763 vs. 25,969).

Amendment % yes
5 37
3 42
12 42
4 43
6 45
8 45
10 45
1 49
11 61
9 62
2 63
There was no Amendment 7 n/a

Missouri Constitutional Amendment 3 failed 24%-76%

Amendment 3, like the Arizona and Florida efforts, would have given governors more power over the merit selection process, in Missouri’s case by giving effective control of the merit selection commission for the state’s appellate courts to the governor.  Proponents announced months ago they were abandoning the effort when they failed to get the ballot language they wanted, but have vowed to come back and try again, this time perhaps via a citizen’s initiative rather than a legislatively referred ballot item. Like the Arizona and Florida losses, Missouri’s Amendment 3 was the worst performer of election night ballot items in the state.

Amendment/Proposition % yes
Amend 3 24
Prop B 49
Prop E 62
Prop A 64

New Hampshire’s Question 2 failed 49-51%

Question 2 would have given the legislature a veto over rules established by the state’s supreme court.  The loss is remarkable for two reasons. First, despite the closeness of a 49-51% vote total, Question 2 was nowhere close the 67% needed for passage, making this effectively a blowout.  Second, and perhaps even more surprising, was the history of failures on this item. An amendment almost identical to 2012’s Question 2 was offered in 2002 and 63% of the vote in favor, only losing because of the need to meet the 67% threshold. When it was put back on the ballot in 2004 it again got a majority (57%) but not the super-majority need. That this time the proposal failed to garner even a simple majority was surprising and, coupled with GOP loss of the New Hampshire House, indicates little chance of a return in 2013/2014.

Ohio’s Issue 2 lost 37%-63%

The amendment dealt would have created an independent redistricting commission and assigned Court of Appeals judges, picked by the Chief Justice, to vet proposed members of the commission. It lost every county in the state (except Athens). Although 19 states do provide for some involvement of judges in redrawing maps (other than hearing appeals or legal challenges from maps once created), the Ohio lopsided loss may caution against similar proposals. Moreover, the recent use of such a provision in Missouri’s constitution (map drawn by panel of appellate judges if legislature cannot come up with map) lead to proposals in that state to remove the map-by-judges provision of that state’s constitution.

Election 2012: The winners and what their victories portend for 2013/2014

Maryland’s Question 1 & Question 2: Both approved

These amendments required the Orphans’ Court (read: probate court) judges in Prince George’s & Baltimore Counties, respectively, to be attorneys. Because of a quirk in the state constitution regarding amendments affecting only a single county, the Questions required majorities both statewide and in the county at issue itself. Both Questions met with 85%+ approval, about what a similar initiative applying to the City of Baltimore got in 2010 (83% statewide, 88% in the City itself).

The upshot is that in 2 of the state’s 4 counties with a population over 500,000 (plus the autonomous and independent City of Baltimore, population ~620k) attorneys of the probate court must be lawyers. The other counties: Montgomery & Anne Arundel.

New Jersey Constitutional Amendment 2 was approved 83% to 17%

The provision changes the state constitution’s prohibition on diminishing of judicial salaries while in office to provide it may not occur “for deductions from such salaries for contributions, established by law from time to time, for pensions as provided for under paragraphs 3 and 5 of Section VI of this Article, health benefits, and other, similar benefits.”

It is not clear what this means for future moves in New Jersey and it remains to be seen if the amendment, adopted after the state supreme court struck down a 2011 law that required judges pay more for their benefits and retirement, will be held to be prospective only, requiring the legislature re-pass the 2011 law.

New Mexico Constitutional Amendment 1 was approved 60% to 40%

The amendment adds magistrate judge and additional member of public to Judicial Standards Commission. The result is that the majority of the commission remains laypersons. I mentioned in 2011 there’s be a great deal of legislative interest in changing these commissions, mostly to add more lay persons or to convert the bodies into quasi-appellate courts in order to “punish” judges who reach the “wrong” opinions. While the New Mexico amendment did not appear to come with that sort of freight weighing it down, 2013/2014 legislatures may take (and in the case of Minnesota, will take) the subject up.

Oregon Measure 78 was approved 72% to 28%

Cleans up some confusing language that references two “branches” of the state legislature while the judiciary is referred to as both “the judicial department” and “judicial branch”. The very definition of a technical amendment, it still keeps at least a few references to “judicial department” in the document. It is not at all clear if there’s any interest in going back in for another clean-up bill and as I noted earlier in the election cycle it’s not at all unusual for state constitutions to refer to the judiciary as a “department”.

Election 2012: The winners, the losers, and the close calls

The November 2012 saw a litany of items on the ballot affecting the courts. For the most part the efforts all failed to advance past the voters, in many cases the no-vote was overwhelming. Even more interesting, efforts to help the courts failed due to a large percent (10%+) of voters declining to vote on the issue at all, effectively voting “no” in the process.

I’ll be looking at the winners, the losers, and the close calls in the next few blog posts.

Reminder: Special Election Night Coverage hosted by Gavel to Gavel’s Bill Raftery!

I’ll be hosting the National Center for State Court’s live election night results on the state ballot initiatives discussed on this blog and state supreme court elections at www.ncsc.org/elections.

There will also be coverage on the National Center’s Twitter feed @StateCourts using the hashtag #NCSCElections.

Special Election Night Coverage hosted by Gavel to Gavel’s Bill Raftery

I’ll be hosting the National Center for State Court’s live election night results on the state ballot initiatives discussed on this blog and state supreme court elections at www.ncsc.org/elections.

There will also be coverage on the National Center’s Twitter feed @StateCourts using the hashtag #NCSCElections.

New Mexico Amendment 1: expanding membership of judicial disciplinary commission; what do other states have?

In November New Mexico voters will decide whether to expand the state’s judicial disciplinary commission, called the Judicial Standards Commission, by adding a magistrate judge and an additional member of public. Currently the Commission has a 3-2-6 balance: 3 judges, 2 lawyers, and 6 non-attorney members of the public.

States vary in terms of the raw number and overall ratio between judges, lawyers, and laypersons. New Mexico and 11 other states give half or more seats to lay persons. Moreover, over half of states (27) put changes to the membership of these commissions into their state’s constitution while another 10 make the membership of these commissions subject to court rule.

Details below the fold
Continue reading New Mexico Amendment 1: expanding membership of judicial disciplinary commission; what do other states have?

Maryland Question 1 & Question 2: double-majorities required to pass, plus what trial judges must be attorneys in other states?

Voters in Maryland will once again be voting on whether to require certain judges in the state be attorneys. In 2010 voters amended the state constitution to require that Orphan’s Court (read: probate) judges in the city of Baltimore must be attorneys. Question 1 (SB 281 0f 2011) and Question 2 (SB 48 of 2012) would extend that requirement to the Orphan’s Court judges of Prince George’s County and Baltimore County, respectively.

Double-majorities required to pass

Interestingly, the two bills were at one point intertwined. SB 281 of 2011 as introduced, dealt only with Prince George’s County. It was amended to include Baltimore County, however the state constitution created a sticking point. Under Article XIV, § 1, an amendment dealing with only one county or jurisdiction has to get the approval of a majority of a voters both statewide and in the county/jurisdiction affected. Multi-county proposals aren’t so constrained

If the General Assembly determines that a proposed Constitutional amendment affects only one county or the City of Baltimore, the proposed amendment shall be part of the Constitution if it receives a majority of the votes cast in the State and in the affected county or City of Baltimore, as the case may be. When two or more amendments shall be submitted to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately.

The House amended SB 281 of 2011 to get rid of Baltimore County and thus return the bill to a single county amendment. SB 48 of 2012 was introduced and adopted for Baltimore County.

What do other states do?

A majority of states allow at least some judges to be non-attorneys, although in practice attorneys often fill these positions it is not always the case. Moreover, the tendency is to move away from such “lay” judges; in addition to Maryland’s 2010 amendment Georgia voted in 2011 to discontinue the practice of electing lay judges for Municipal Courts (those already serving may continue to do so and be reelected).

Details below the fold
Continue reading Maryland Question 1 & Question 2: double-majorities required to pass, plus what trial judges must be attorneys in other states?

Wyoming Constitutional Amendment C: What exactly is “chambers business”?

Wyoming HJR 1 (of 2011) / Constitutional Amendment C , on the ballot this November, would eliminate an existing provision that district court commissioners may act only 1) in the absence of the district judge from the county or 2) where it is improper for the district judge to act.

Article 5, Section 14. District courts generally; commissioners. The legislature shall provide by law for the appointment by the several district courts of one or more district court commissioners (who shall be persons learned in the law) in each organized county in which a district court is holden, such commissioners shall have authority to perform such chamber business in the absence of the district judge from the county or upon his written statement filed with the papers, that it is improper for him to act, as may be prescribed by law, to take depositions and perform such other duties, and receive such compensation as shall be prescribed by law.

In this first look at Wyoming’s Amendment C I’ll take a look at what exactly is “chamber business”?

Wyoming’s Article 5, Section 14 is almost identical to Article VI, Section 14 of the 1879 California Constitution.

The Legislature may also provide for the appointment, by the several superior courts, of one or more commissioners in their respective counties, or cities and counties, with authority to perform chamber business of the judges of the superior courts, to take depositions, and to perform such other business connected with the administration of justice as may be prescribed by law.

As the 1966 California Constitution Revision Commission noted, the term “chamber business” wasn’t particularly clear.

The existing section [14] raises the  problem of defining ‘chamber business’ since many ‘judicial’ duties can be performed in chambers. To indicate the subordinate nature of duties that officers such as commissioners should be allowed to perform, the phrase ‘subordinate judicial duties’ was used.” (Cal. Const. Revision Com., Proposed Revision (1966) p. 99., as cited in Gomez v. Superior Court, 54 Cal. 4th 293, 305-306 (Cal. 2012))

The phrase was amended out of the California Constitution and replaced with “subordinate judicial duties” in 1966.

The Wyoming Board of Judicial Policy and Administration produced a press release last week to give more details.

The purpose of Constitutional Amendment C is to enhance the efficiency of the district court by removing two obstacles to the court’s use of court commissioners. The state constitution currently allows court commissioners appointed by the district judge to conduct “chambers business”, and it grants the court commissioner authority to act in the absence of the district judge from the county. However, much has changed in the operation of district courts since the 1890 when our constitution was adopted. The statutes impose more duties and deadlines that can be difficult to fulfill promptly when the district court is conducting trials or other business. The amendment would give the court commissioner authority to act in matters beyond “chambers business,” such as emergency hearings in mental health and juvenile cases, where the district judge is within the county, but is otherwise occupied, such as in a jury trial. This would allow the district court to more promptly act on matters of great importance to members of the public.

Hawaii’s Amendment 2: Allowing judges to come back into limited service after their mandatory retirement age

I’ve examined the dozens of bills introduced in the last several years to increase or eliminate mandatory judicial retirement ages. Hawaii itself tried, and failed, to increase the age in 2006. Now the state is considering a constitutional method that would maintain the retirement age but allow for the use of such retired judges via a new judicial position: emeritus judge.

Under SB 650 of 2012, on the November ballot as Amendment 3, the state’s chief justice would be permitted to recall into service judged forced into retirement due to the age limit for three month periods. The “emeritus judges” would be available for service as temporary judges in courts no higher than the court level they reached prior to retirement, thus a former Supreme Court judge could sit in the lowest trial court (District) but not vice versa. A provision in the original text of SB 650, one that would have also allowed for the retired judges to serve as “judicial mentors”, but this provision was amended out over concerns that the mentor would do more than just advise new(er) judges on court operations and procedures and instead influence judicial decisions.

What makes Hawaii’s provision potentially unique is the provision allowing judges over the mandatory retirement age to come back and serve as judges. While most states have some sort of statute or court-rule allowing retired judges below the mandatory retirement age to come back into judicial service, they are contingent on the judge remaining below that threshold, or serving in some non-judicial role (such as a special master, hearing officer, etc.)