Montana: House committee approves bill to require judges recuse due to campaign contributions; using PACs to direct funds to judges could also require recusal

The Montana House State Administration Committee yesterday approved a bill to require judges recuse from cases due to campaign contributions.

Under HB 157 as approved a judge may not sit or act in an action or proceeding when the judge learns by means of a timely motion that the judge has benefitted from or received from a person in the action or proceeding or the person’s employee or attorney an aggregate contribution that exceeds the standard contribution limit. “Aggregate contribution” includes both direct, reportable contributions made to a judicial candidate AND contributions made independently to or through a person or political committee when the contribution can be shown to benefit the election of the judicial candidate.

Wyoming: plan to subject judicial nominating commissioners to senate confirmation appears dead

A plan to require Wyoming judicial nominating commission members to be subject to senate confirmation appears to have died.

Wyoming’s top courts use a merit/commission based system of appointment. The commission membership is set by the state’s constitution as

-the chief justice (or designee)
-three bar members elected by the state bar
-three non-bar members chosen by the governor

Nowhere in the constitutional provision is the senate given a role. Nevertheless, this year SF 141 was filed to provide that the bar members and non-bar members were to be confirmed by the senate.

While the bill was originally directed to the Senate Judiciary committee it was later diverted to the Senate Transportation committee. It was approved by that committee and sent to the full Senate which appears to have passed the bill by and not sent it on to the House before the legislative deadline.

The debate over partisan vs. nonpartisan judicial elections continues: now an Arkansas legislator wants an end to nonpartisan races and a return to partisan ones

This is proving to be an unprecedented year in terms of the number of efforts to either switch from partisan to nonpartisan judicial elections or vice versa. See here and here. Now we can add Arkansas to the list.

In 2000, Arkansas voters approved Amendment 80, which effectively rewrote the state’s judiciary article. A key provision (Sections 17 & 18) in Amendment 80 required all judicial race to be nonpartisan and gave an option to eventually switch from nonpartisan election to merit/commission based selection.

HJR 1006
would strike the word “nonpartisan” in Sections 17 & 18 and replace with “partisan”.

The move comes amid controversy over the state’s judiciary. In the last session, the legislature sent to the ballot a proposal (Issue 1, discussed here) that would have changed tort laws in the state and given the legislature power over court rulemaking (something Amendment 80 gave exclusively to the state supreme court). The supreme court removed the proposal from the ballot, arguing it violated provisions of the state’s constitution regarding what the legislature could and could not put before voters. Almost immediately thereafter efforts were made to stymie the judiciary’s budget, with legislators tweeting that “there will be consequences, starting with [the court’s] budget” for the decision.

Tennessee becomes latest state to consider ending partisan judicial races; incumbent judges would be guaranteed to have their name first on the ballot

Tennessee has joined a growing list of states considering an end to partisan judicial races.

Tennessee, like a great many states, does not just rely on 1 method of judicial selection. The state’s appellate courts are chosen in a quasi-federal system (governor appoints, House/Senate confirm, followed by retention elections). Trial courts are picked in any number of ways, including partisan election, nonpartisan, and appointment by local officials (such as in Municipal Courts).

For those courts/counties that use partisan judicial elections, HB 1494 / SB 1063 would end them in favor of nonpartisan judicial races. In those races, incumbents would have the right to have their name first on the ballot.

Several other bills have been introduced with a county-specific focus.
HB 1183 / SB 990 would focus on judicial races and require they be nonpartisan in Shelby and Davidson Counties along with local legislative races.

SB 411 has the same end (nonpartisan judicial and legislative races in Shelby and Davison) but with slightly different language that includes the incumbent-name-first aspect of HB 1494 / SB 1063.

Iowa: Legislative subcommittee moved to overhaul state’s judicial selection system, give governor and legislature power over nominating commissions

A plan to overhaul Iowa’s merit/commission system for the selection of judges cleared its first legislative hurdle this week.

Presently, Iowa’s merit selection commissions are made up of

  • members of the bar “elected by the resident members of the bar” of the state, judicial district, or county
  • non-lawyers appointed by the governor (subject to senate confirmation for the State Nominating Commission) or the local Board of Supervisors
  • a chair who is a judge

HSB 110 and its Senate counterpart SSB 1101 would end the role of the bar and remove the judge as chair. Instead, the governor would effectively maintain his/her picks (but be required to name lawyers among those picks). The remaining seats would go to legislative leaders: speaker of the house, house minority leader, senate majority leader, and senate minority leader.

This is just the latest in a series of bills introduced in the last several years to dilute our outright eliminate the role of the state bar/members of the bar in judicial selection in the state and transfer those seats to the governor and/or legislature (see this from the 2017 iterations).

HSB 110 cleared a House Judiciary Committee on February 6. SSB 1101 remains in subcommittee

3 states consider ending partisan judicial races, but 2 other states debate bringing them back; other states want an end to partisan election of clerks of court

Years ago, I noted the North Carolina/West Virginia paradox. As West Virginia moved to expand its public financing of judicial races (court of last resort at least), North Carolina moved to end their program. West Virginia moved to end partisan judicial races at almost the same moment North Carolina moved to bring their judicial races back to partisan.

The above dynamic is playing out in the 2019 legislative sessions in a host of states: one state moving one way on judicial selection, while a nearby (and sometimes neighboring) state considers going the other way.

Partisan to Nonpartisan
New Mexico SJR 12 would end partisan races for Supreme Court, Court of Appeals, District Court, and Metropolitan Court. A similar plan was introduced as SJR 10 of 2017 (discussed here). The 2017 effort was approved in the Senate Rules Committee but proceed no further.

Mississippi HB 1490 addresses a quirk in Mississippi law. The state has previously ended partisan judicial elections for all courts except the state’s lowest (justice court). HB 1490 would switch these elections to partisan and provide that judges elected to these courts would be considered legally “part-time” judges and eligible to continue to practice law.

South Carolina HB 3034 would require nonpartisan elections in probate courts. Interesting, South Carolina’s probate court judges are the only judges in the state subject to voters. Most (Supreme Court, Court of Appeals, Circuit, and Family) are chosen by the legislature. Magistrates Court judges are appointed by the governor with legislative confirmation. Municipal Court judges are appointed by local government.

Nonpartisan to Partisan
Kentucky HB 123 would amend the state’s constitution to require partisan elections for judges in the state. The move seems, at least in part, prompted by a recent decision of the state’s supreme court striking down the governor’s and legislature’s pension reform plan as unconstitutional.

South Dakota SJR 3 would end nonpartisan elections for all judges.

Clerk Races
While a great deal of focus is on judicial races, another key judiciary-related office is that of Clerk of Court. While there have been several attempts in states to make these races nonpartisan over the years, none have succeeded. Nevertheless, the topic is up for debate this year in the following states:

Mississippi SB 2374 would convert several county offices to nonpartisan including Chancery Clerk and Circuit Clerk.

Nebraska LB 72, LB 144, and LB 211 would allow for some of all county officers, including clerks of court, to be elected on a nonpartisan basis. The bills differ in how that change would occur: LB 72 and LB 211 would simply convert these elections to nonpartisan directly. HB 144 would require voters to approve such a change on a county-by-county basis.

South Carolina HB 3032 would end the practice of electing on a partisan basis the Clerk of Common Pleas who serves ex officio as the clerk for all courts of record in a county (unless specified by another statute).

Montana: Bill would mandate judges recuse based on campaign contributions and when independent expenditures were made in their favor

A member of the Montana House has introduced legislation to address the issue of independent expenditures in that state’s judicial elections. Under HB 157 as filed judges would not be able to sit on cases where a party, party’s employee, or attorney has made “aggregate contribution[s]” to the judge’s campaign that exceed the contribution limit set for individuals under state law.

“Aggregate contribution” includes both contributions made directly to a judicial candidate’s campaign PLUS “contributions made independently to or through a person or political committee when the contribution can be shown to benefit the election of the judicial candidate.”

It was independent expenditures in a West Virginia Supreme Court race that was at issue in the U.S. Supreme Court case of Caperton v. Massey. There, the U.S. Supreme Court held that the independent contributions required a justice of the West Virginia court recuse.

HB 157 has been filed in the House State Administration Committee.

Georgia: New statewide Business Court with unique judicial selection system to appear on November 2018 ballot; Superior Courts could still create business divisions

Georgia has one of the most complex trial court systems in the nation, with at least 6 distinct trial courts (Superior, Probate, State, Magistrate, Municipal, and Juvenile). Now voters will decide on a 7th: Business Court.

HR 993 would amend the state’s constitution to create a Business Court. The plan, as amended, would still allow Superior Courts to create their own business court divisions.

Moreover, unlike the state’s other courts which are mostly elected, Business Court judges would be appointed by the Governor. Moreover, unlike any other state, confirmation would be done not by a single chamber (e.g. Senate) or both legislative chambers (as in Connecticut and Tennessee) but by the House Judiciary Committee and the Senate Judiciary Committee.

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.

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.