North Carolina: Legislature wants to redraw all judicial districts, votes not to hold judicial primaries next year, governor vetoes, legislature overrides

Since at least 2015 North Carolina’s legislature has taken a particular interest in redrawing the maps for the state’s judicial districts (see here). Having switched to partisan judicial races in the last 12 months, the anticipation was that NC judges would run in primaries in the existing districts in the 2018. Now, however, it appears there will be no primaries at all.

SB 656, entitled the Electoral Freedom Act of 2017, includes various changes to election laws in the state. Most critically for the judiciary, however, was Section 4, which eliminates the 2019 primaries for judges and district attorneys.

North Carolina’s governor vetoed the bill, claiming in part that this denied people the right to vote on their judges and was a first step to transfer the power to select judges away from the people and to the legislature. News reports indicate a “assisted appointment” selection plan has been discussed in the North Carolina General Assembly that would effective give the legislature control over initial selection/appointment to judicial office.

The legislature then proceeded to override the veto.

Meanwhile, the effort to redraw judicial districts (HB 717) was approved by the House in October and is in the Senate.

California: bill would no longer allow candidates for judicial office to put “disingenuous and histrionic” words next to their names on the ballot

California law (Elec Code § 13107) allows for those seeking judicial office to designate their current principal professions, vocations, or occupation with up to a 3 word description plus the word or phrase “appointed incumbent” or “incumbent” if the person is a currently serving as a judge.

The result has been in several recent judicial races candidates currently serving as Deputy District Attorneys using the 3-word description of their current position not as Deputy District Attorney but as “Child Molestation Prosecutor”, “Hardcore Gang Prosecutor”, or “Sexual Predator Prosecutor”  or other similar phrases (see page 12 here for the 2016 Los Angeles County ballot). This hyperbole isn’t limited to prosecutors, with other attorneys adding words like “virtuous” or “eminent” or “leading” to their descriptions.

The author of the bill called these descriptors “disingenuous and histrionic.”

SB 235 as approved by the Senate earlier this year 34-1 and up for a vote possibly as early as this week would limit the 3 word descriptors.

  1. Prosecutors and others who are in government jobs would be limited to using their actual job title as defined by statute or local charter (e.g. Deputy District Attorney) + the geographic location OR “Attorney,” “Attorney at Law,” “Lawyer,” or “Counselor at Law.”
  2. Private practice attorneys would be limited to “Attorney,” “Attorney at Law,” “Lawyer,” or “Counselor at Law.”
  3. For both types of lawyers, “Attorney” and “Lawyer” could be used in combination with other words, but only words describing the profession or vocation: “Family Lawyer” would appear to be OK but “Eminent Family Lawyer” apparently wouldn’t.

North Carolina: amendment to revise all or almost all of the state’s judicial election districts approved in committee but unable to advance to floor

A plan to restructure North Carolina’s entire judicial election map was approved in committee earlier this week but appears to have been blocked from a floor vote.

HB 717 as originally filed in April would have altered a few judicial election districts. The amendment, offered according to news reports with little or no notice in the House Judiciary I committee, would have instead restructured all judicial divisions and districts in the state. Opponents accused the sponsors of wanting to gerrymander the judicial districts in favor of Republicans. The lead author claimed he was correcting an existing pro-Democratic gerrymander of the districts. The author did acknowledge during the committee hearing that the new maps were drawn without input from judges, prosecutors (whose lines would also be redrawn), court clerks, or the state’s Administrative Office of the Courts.

Although the plan did come out of committee, objections to the bill swiftly reduced the odds of a floor vote in the House this session and HB 717 has been sent back to committee (Elections and Ethics Law).

New Jersey: latest in 15+ year effort to require state supreme court justices be subject to retention elections; legislative reaction & disagreement with high court’s rulings

News reports indicate that at least two members of the New Jersey Senate plan to introduced a constitutional amendment to require New Jersey supreme court justices face voters in yes/no retention elections. This plan is the latest in a 15-year pattern of similar efforts filed in the legislature after the state’s supreme court apparently in response to rulings issued by the supreme court regarding affordable housing requirements and education spending (the Abbott cases).

Under the current NJ constitution, Superior Court judges and Supreme Court justices are subject to a 3-step process:

  1. Initial nomination by the Governor and confirmation by the Senate.
  2. After 7-years of service, renomination by the Governor and reconfirmation by the Senate
  3. If renominated and reconfirmed, serve until mandatory retirement age (70).

The plan, as reported in local media, would be to replace renomination and reconfirmation with a yes/no retention vote after 4 years in office. (h/t Malia Reddick with IAALS)

This marks the latest in an over decade-long effort to change the way judges in New Jersey are picked, many focused on forcing justices and judges to run in elections. While dozens of constitutional amendments have been proposed, none appear to have gotten as far as the committee hearing stage.

Details below the fold.

Continue reading New Jersey: latest in 15+ year effort to require state supreme court justices be subject to retention elections; legislative reaction & disagreement with high court’s rulings

Texas: House and Senate approve plan to end straight ticket voting for judicial & other races, but lawsuits planned

When Texas’ chief justice in his State of the Judiciary address brought up the issue of ending straight ticket voting (STV) for judicial races I wondered what that legislation might look like. Would it end STV for judicial races only? Some judicial races?

The answer now appears to be all races, judicial included. HB 25, as amended and soon to be sent to the governor, ends STV for all elected offices.

News reports indicate that if enacted, the law would almost certainly face a lawsuit under the Voting Rights Act, with opponents citing to a 2016 federal court ruling that stopped Michigan’s end to STV (Michigan judges run in nonpartisan general election contests and therefore were not under STV at any rate, as can be seen in this example from 2014).


Pennsylvania: House Judiciary Committee approves merit/commission selection for appellate courts with Senate confirmation; con amendment would have to go on a general election ballot

A plan to change the way Pennsylvania’s appellate judges are picked has cleared the House Judiciary Committee, with amendments, earlier this week.

HB 111 of 2017 would amend the state’s constitution to create a merit selection/commission based process.

An Appellate Court Nominating Commission would be created made up of 13 members (8 bar members, 5 non-bar members)

  • 5 appointed by the Governor (4 bar members, 1 non-bar)
  • 2 appointed by the Senate Majority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the Senate Minority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the House Majority Leader (1 bar members, 1 non-bar)
  • 2 appointed by the Senate Minority Leader (1 bar members, 1 non-bar)

The composition of the Commission has been a source of debate for prior iterations of this bill introduced over the last decade and discussed here.

When a vacancy occurs on an appellate court the Commission would submit to the Governor a list of “five of the most qualified individuals”; the Commission would be required in making that list to consider the geographic, racial, ethnic, gender and other diversity of the state. Nominees would also be required to have at least 10 years of legal experience.

The Governor would select from among the list of five names a nominee who would then be subject to Senate confirmation. Under the bill as introduced the Senate would have to give 2/3rds approval; that was amended in committee down to a simple majority.

If the Senate failed to confirm or reject a nominee within a set number of days the person would be automatically confirmed (“the nominee shall take office as if the appointment had been consented to by the Senate.”)

After Senate confirmation, the judge would have an initial term of four years before standing for a yes/no retention election for a full 10 year term.

In addition to amending the Senate confirmation down from 2/3rds to a simple majority, the committee made another key amendment: if HB 111 goes to the voters it must appear on a General Election ballot and not a primary or municipal (spring) ballot.

HB 111 now goes to the full House. If approved by the House and the full Senate, it would have to be re-approved by the 2019/2020 legislature before going to voters.

Colorado: Changes to Judicial Performance Evaluation system set for House vote; commissions would no longer issue “retain/do not retain” recommendations to voters

A plan (HB 1303) to revamp Colorado’s Judicial Performance Evaluation system is set for a vote by the House this week. The plan would make changes to the existing system of statewide and district-based commissions that put out evaluations of judges for voters to examine. Among the changes:

  1. Commissions would have the power to recommend after an interim evaluation that a judge be subject to a judicial improvement plan.
  2. The commissions would be required to create a “standards matrix” and clearly define or describe whether a judge “meets performance standard” or “does not meet performance standard” and defined how that information will be made available to the public.
  3. During an election year, commissions would no longer issue a statement for
    “retain”, “do not retain”, or “no opinion”.
  4. Adds senior, retired judges who have returned to temporary judicial duties per contract with the judicial department to the list of those evaluated.
  5. The creation of a systemwide volunteer courtroom observer program.
  6. Currently commission members serve for 4 years. HB 1303 calls for the terms of sitting members to be cut short as of February 1, 2019.
  7. Membership on the commissions would change, with House and Senate minority leaders getting to select members of the commissions.
Current State and District (10 members) New State (11 members) New District (10 members)
Speaker of the House 1 attorney, 1 nonattorney 1 attorney, 1 nonattorney 1 attorney, 1 nonattorney
President of the Senate 1 attorney, 1 nonattorney 1 attorney, 1 nonattorney 1 attorney, 1 nonattorney
Governor 1 attorney, 2 nonattorneys 1 attorney, 2 nonattorneys 2 nonattorneys
Chief Justice 1 attorney, 2 nonattorneys 2 attorneys 2 attorneys
House Minority Leader n/a 1 nonattorney 1 nonattorney
Senate Minority leader n/a 1 nonattorney 1 nonattorney

HB 1303 could be voted on by the full House as early as today.

California: Assembly Judiciary Committee wants a working group to look at how to get more information out to voters about judicial elections, posting judicial decisions online

An effort to improve voter education when it comes to judicial elections in California has cleared the Assembly Judiciary Committee.

AB 1463 as amended creates a working group, chosen by the Judicial Council, to consider what information would be useful to voters in a judicial election and how to make this information accessible to voters. The working group may consider whether it is appropriate or feasible to post judicial decisions on an Internet Web site maintained by a government entity.

AB 1463 now goes to the Assembly Appropriations Committee.


Delaware: final approval on constitutional amendment to give governor & senate more time to consider judicial nominees, allow for prospective appointment

A constitutional amendment discussed here and here to give Delaware’s governor and senate more time to consider judicial nominations cleared its final hurdle. With 39-0 House approval, the constitutional amendment will now go into effect (Delaware doesn’t require voter approval of constitutional amendments).

Currently, the constitution provides the governor makes nominations and the Senate confirms for the state’s top courts (all but Alderman’s). Since 1977 every governor has used an advisory Judicial Nominating Commission. The governor and senate, however, are on a timetable:

  • The governor must submit a name to the Senate within 60 days after the occurrence of a vacancy.
  • The Senate, if in session, takes up the name. If not in session, the Governor must within 60 days convene the Senate to take up the nomination.
  • If an incumbent judge remains in office, they can holdover up to 60 days after the expiration of their term.

SB 25 of 2017 would effectively extend these deadlines and allow for prospective appointments if a vacancy is set to occur; the current constitution is silent on the matter.

  • The governor could submit a name to the Senate “from 30 days before to 90 days after” the vacancy happens.
  • The Senate could also be called back into session “from 30 days before to 90 days after” the vacancy happens.
  • Incumbent judges could holdover in office up to 90 days.

The constitutional amendment (then called SB 275 of 2016) was approved unanimously by both chambers last year.

Montana: “Supreme Court Candidate Public Forum Program” killed; effort at public funding for court races but opponents worried about using court fees to pay for it

A plan discussed here to create publicly funded public forums to hear from candidates for Montana’s non-partisan Supreme Court races is dead for the session.

HB 636 would have directed the Secretary of State hold public forums throughout the state and invite all candidates for the high court participate. The funding from the program would have come, in part, from an increase in filing fees in appellate and civil cases. Opponents (audio here starting at 1:50) expressed concern that the increase in fees would be problematic from an access-to-justice perspective and that while the forums should be encouraged, community groups should be taking care of them. They also objected to candidates having their travel expenses to the forums being paid for via the forum.

The bill was heard in the House Judiciary Committee on March 28 and left in the committee. A motion to pull it out of committee and bring it to the floor was rejected by the full House on March 29 41-58.