Rhode Island: House committee holds hearing on bills that would guarantee certain trial court judgeships & 3 seats on Judicial Nominating Commission to “persons of color”

A hearing was held earlier this week on a series of bills filed to address diversity in the Rhode Island judiciary. Video of the hearing before the House Judiciary Committee is here, starts at around 56:30 and ends at around 85:00. During testimony the author of the bills asserted that of Rhode Island’s 85 judges, few are “of color” and that the Judicial Nominating Commission had demonstrated bias in the past against persons of color. Moreover, the lead sponsor accuses some judges in Rhode Island of using their robes “as a lynching opportunity for people of color and poor people.”

The bills were (in order)

HB 7532 Requires that the judicial selection commission be composed of at least three members of color.

HB 7648 Provides any trial court seat currently filled by a “person of color” can only be filled in the future by another “person of color.”

HB 7649 Requires the judicial selection commission actively and aggressively solicit members of color to apply for judicial appointments, including practicing members of the Rhode Island Bar residing in border states.

HB 7908 Requires the judicial nominating commission to consider a nominee’s unique background and field of practice rather than emphasizing trial and courtroom experience in selecting new members of the judiciary.

The House Judiciary committee recommended the measures be held for further study.

South Carolina: bill out of committee requires Magistrate Court Judges have at least a four-year baccalaureate degree, requires attorney-judges in counties over 75k

South Carolina maintains 5 trial courts, one of which is Magistrate Court (in many/most states a “magistrate” is a quasi-judicial officer of some other court, not a judge of a separate court). South Carolina Magistrate Court Judges are appointed by the governor with senate confirmation and have both civil and criminal jurisdiction, but aren’t required to be lawyers or even to have graduated college; a GED is all that is required. That may change under a bill approved by the House Judiciary Committee this week.

HB 4811 as filed provided that starting in July 2018 newly appointed Magistrate Court Judges must have received a four-year baccalaureate degree. In counties over 75,000, the judges must also be a licensed attorney. The version as amended in committee extends the deadline to July 2019.

HB 4811 now goes to the full House.

Rhode Island: bill would require judicial nominating commission focus on “nominee’s perspicacity based on their unique background and experience in order to diversify the perspective of the judiciary”

The ongoing efforts by members of the Rhode Island House to diversify the bench continues.

HB 7908 as filed would require the state’s Judicial Nominating Commission focus on diversity and not emphasize courtroom and/or trial experience.

The commission shall consider each nominee’s perspicacity based on their unique background and experience in order to diversify the perspective of the judiciary of this state. When considering the qualifications of a nominee, courtroom and/or trial experience shall not be emphasized, but rather the commission shall consider the competence of the nominee in their chosen field of practice.

This is the latest in a series of bills related to judicial diversity introduced in the last threeweeks.

HB 7532 would require the 9-member Judicial Nominating Commission have at least 3 persons of color.

HB 7648 provides that when a person of color leaves a trial court bench (Superior, Family, District, Traffic Tribunal, Workers’ Compensation, or Municipal) “their replacement must be a person of color, so as not to diminish the number of judges of color in that court.”

HB 7649 requires the judicial selection commission actively and aggressively solicit members of color to apply for judicial appointments, including practicing members of the Rhode Island Bar residing in border states.

Louisiana: Constitutional amendment would eliminate mandatory retirement age for judges, but could result in elimination of all age requirements for all public offices and employment

A plan to eliminate Louisiana’s mandatory judicial retirement age and replace it with a certification system has been filed for the upcoming session. The language, however, might have broader ramifications.

HB 203 as filed would strike the language in the state constitutions that judges but forced to retire at the end of the term in which they reach 70. It would also allow the legislature to require judges over 70 to report to the state’s judicial disciplinary commission (the Judiciary Commission) to be reviewed.

HB 215 implements the provision for Judicial Commission review of judges over 70.

HB 203 goes a step further that simply ending mandatory judicial retirement for judges however. It adds a provision in Article X of the state constitution that “No person shall be denied the right to hold public office or public employment based solely on age.” That would appear to eliminate the minimum age requirements for legislators (18) and governors (25) and end mandatory retirement ages or minimum age requirements for any government employment.

HB 203 and HB 215 have been prefiled for the 2018 regular session.

Florida: What is the Constitution Revision Commission looking at regarding the judiciary?

Although not technically a legislative entity, Florida’s Constitutional Revision Commission is, like the legislature, allowed to submit constitutional amendments onto the ballot affecting the courts. While there were 103 CRC proposals, these have been narrowed to Proposals Under Active Consideration as of today. Those affecting the courts include

      • Proposal 6: Requires any state court or administrative law judge to interpret a state statute or rule de novo, independent of an agency’s interpretation, in any litigation proceedings between a private party and an administrative agency.
      • Proposal 39: Among other things, prohibits a justice or judge from personally representing another person for compensation before the legislative, executive, or judicial branches of state government, other than practicing law before a judicial tribunal, for a period of six years following vacation of office.
      • Proposal 41: Allows judges to serve until age 75. Currently judges must retire at 70, but can serve out their current term if they already served at least 1/2 of it when they hit 70.
      • Proposal 47: Provides a person must be a member of a U.S. state or territory for 10 years to be eligible for a trial court judgeship (Circuit or County Courts).
      • Proposal 55: Requires the legislature to provide funding sufficient to offset the Clerks costs in providing services in criminal and other court cases in which the parties do not pay fees and costs.

Gone are any proposals regarding changes to judicial selection.


West Virginia: Senate approves big changes to judiciary; constitutional amendment would let legislature control judiciary’s budget; creation of intermediate appellate court advances

The West Virginia Senate approved two big changes to the state’s judiciary yesterday

Judicial Budget Oversight Amendment

SJR 3 as approved addresses funding for the state’s judiciary. Currently the West Virginia judiciary is unique among all states in that it’s budget request must be approved by the legislature without a decrease

The Legislature shall may not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased

SJR 3 as introduced would have reasserted legislative control, striking the “That no item relating to the judiciary shall be decreased” language.

SJR 3 as approved by the Senate Judiciary committee struck the language, but added a protection.

Provided, That the Legislature may not condition the increase or decrease of an item relating to the judiciary upon a particular ruling, order or decision of a court of this state.

SJR 3 as approved by the Senate Finance committee changed the wording further still

Provided, That the Legislature may not make any law that conditions the increase or decrease of an item relating to the judiciary upon a particular ruling, order, or decision of a court of this state

The Senate Finance language was approved by the full Senate. If approved by the House it would still have be approved by voters.

Intermediate Appellate Court (at least for the next 10 years)

SB 341 as amended and approved by the full Senate yesterday is the latest in a 20 year effort to get an intermediate appellate court in the state.

SB 341 would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges. The court would automatically sunset in July 2029.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

  1. The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.
  2. The governor would then appoint a person subject to Senate confirmation.
  3. Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

Included is a provision that civil appeals would lie either to the Intermediate Court of Appeals or Supreme Court of Appeals and that in civil cases “shall be afforded a full and meaningful review, and an opportunity to be heard, by the West Virginia Supreme Court of Appeals or the Intermediate Court of Appeals, and a written decision on the merits shall be issued, as a matter of right.”

SB 341 now goes to the House.

Arizona: you can adjudicate my case, but you can’t buy a beer (redux); committee hearing set for next week to eliminate minimum age for judges

In 2011, I noted that at that time several legislatures were considering raising the minimum age to be a judge. There have been recent instances of 26 and 27 year old judges and records indicate a 17 year old justice of the peace in Indiana in 1974 (Indiana has since disbanded these local courts) and an 18 year old high school student elected justice of the peace in Texas in 1990 and still on the bench today.

Arizona provides its Justice of the Peace court judges need only be 18 and a qualified voter and resident but requires its Superior Court, Court of Appeals, and Supreme Court judges be at least 30.

That, however, may change.

HCR 2036 as filed and set for a hearing before the House Appropriations Committee next week would remove the constitutional requirement that Superior Court, Court of Appeals, and Supreme Court judges/justices be at least 30. It would also eliminate the minimum age requirements for state executive and legislative positions.

There may, however be a practical impediment to the possibility of a future 18 year old sitting on an Arizona Superior Court. The constitution also requires that the person up for a judgeship also be “admitted to the practice of law in and a resident of the state for five years next preceding their taking office.”

Iowa: Anger over Supreme Court orders limiting guns in courthouses continues, House member wants to cut Supreme Court salaries down to $25,000 (salary of a legislator), reduce their terms & term limit them

A member of the Iowa House has introduced 3 pieces of legislation targeting the state’s Supreme Court, the latest legislative reaction to orders released by the Supreme Court last year regarding a new law that expanded where guns could be carried first discussed here. The orders limited courthouse carrying of firearms, much to the anger of some legislators.

All three bills are not pending in the House Judiciary Committee.

Pennsylvania: constitutional amendment would require non-attorneys pass exam before they can even run for judicial office; currently they can run and be elected, but can’t assume office

The Pennsylvania Constitution currently provides that justices of the peace (referred to in statute as magisterial district court judges) are to be elected. For non-attorneys election is only the first step, they must then “complete a course of training and instruction in the duties of their respective offices and pass an examination prior to assuming office.”

This presents a problem: what happens if the non-attorney doesn’t pass the exam? Or take the course at all?

Back in the 1970s the state legislature tried to require non-attorneys take the exam prior to running for office to avoid this, but it was struck down as unconstitutional by the state’s Supreme Court (Flegal v. Dixon, 472 Pa. 249, 372 A.2d 406 (1977))

The Act’s imposition of the additional requirement that the instruction and examination be completed before filing nominating petitions is therefore unconstitutional.

Now, members of the Pennsylvania House wants to amend the constitution to in effect overturn Flegal.

Under HB 1645 as introduced a non-attorney would have to take the course and pass the exam prior to even being nominated or running for office.

HB 1645 has been filed in the House Judiciary Committee.

This isn’t the first time legislators have attempted amend the state’s constitution to require non-attorney pass the exam before they can run for office. Similar efforts were made on the Senate side (SB 521 of 2015; SB 170 of 2013; SB 57 of 2011; SB 1119 of 2009; SB 696 of 2007), none of which advanced out of committee.

Wisconsin: bills to require municipal court judges be attorneys re-introduced

Wisconsin legislators are once again considering the question of whether or not municipal court judges in the state should be required to be attorneys.

AB 33 filed in January 2017 and SB 294 filed in mid-June both provide that a person may not qualify for election or appointment as a municipal court judge unless he or she is an attorney licensed to practice in Wisconsin and a member in good standing of the State Bar of Wisconsin.

The is the latest effort to mandate that municipal court judges be attorneys. In the 2011/2012 session, AB 101 was heard in committee be failed to advance; Gavel to Gavel coverage of that effort and hearing can be found here. The identical SB 318 was never even taken up on committee.

There the matter lay for almost 4 years until AB 230 of 2015/2016. It too was never taken up in committee.