Louisiana Legislative Year in Review: effort to eliminate mandatory judicial retirement age rejected

On ballot

HB 96 (Constitutional Amendment) Eliminates mandatory judicial retirement age. Rejected at November 2014 ballot.

Law

HB 38 Increases judicial retirement benefits age from 60 with 5 years of service to 62 with 5 years of service.

HB 46 Requires judges to sign and print their names on all judgments.

HB 54 Provides that any court that designates by rule, divisions, or sections of the court as a specialized division or section having subject matter jurisdiction for an alcohol court, driving while intoxicated court, sobriety court, or other specialized subject matter jurisdiction shall assess certain costs.

HB 569 Authorizes district courts to designate a section or division of court for human trafficking courts and provides for certain procedures. Provides that the victim will receive certain support services only if available.

HB 709 Allows justices of the peace to solemnize marriages in any parish which has no justice of the peace. Provides when justice of the peace appoints ad hoc justice of the peace to temporarily serve in office must notify attorney general within 72 hours.

HB 752 Expands the crime of filing a false lien against a law enforcement or court officer to include liens against any clerk of court, recorder of mortgages, and their deputies.

HB 888 Creates the Louisiana Clerks’ Remote Access Authority (LCRAA) for the purpose of providing infrastructure, governance, standard operating procedures, technology, and training to support a statewide portal for secure remote access of certain court records maintained by LCRAA members to internet users and for document preservation.

HB 1130 Authorizes municipal governing authorities to contract with private collection agencies for purposes of collecting city court fines, forfeitures, penalties, and costs.

SB 111 Establishes that fees for e-filing may not exceed the fee amount for regular paper filing of documents. Provides that documents up to eight and one-half inches by fourteen inches, including but not limited to exhibits, attachments, suit records, transcripts, and depositions, shall be two dollars per page. Provides that all paper documents and other exhibits larger than eight and one-half inches by fourteen inches shall be five dollars per page.

SB 532 Creates veteran’s court program in all district courts. Specifies it is the prosecutor who decides there is reason to believe it is in the best interest of the community and in the interest of justice that a defendant be made eligible for the program.

SB 583 Removes exemption that those justices of the peace serving as of August 15, 2006 need not retire at age 70.

SB 606 Provides that the various courts shall provide by court rule for the method of electronic signature to be used and to ensure the authenticity of the electronic signature. Repeals law prohibiting electronic signatures relating to court orders or notices, or official court documents, including briefs, pleadings, and other writings, required to be executed in connection with court proceedings.

Election 2014 Final Results: The winners and losers

The votes are in and the results from last night’s elections are below. Analysis of the results to follow later today.

Winners

  • Alabama Amendment 1 (72%): Prohibit state courts from using international or foreign law; prohibit state courts from giving full faith and credit to decisions from other states that reference international or foreign law
  • Alabama Shelby County Local Amendment 1 (79%): Judge of the Probate Court must be an attorney
  • Arkansas Issue 3 (53%): Creation of salary commission to determine judicial and other salaries
  • Hawaii Amendment 1 (82%): Require names submitted to governor for selection to judicial office be released
  • Nevada Question 1 (54%): Creation of intermediate appellate court (court of appeals)
  • New Mexico Amendment 3 (62%): Allow legislature to set deadline for judges to file paperwork seeking reelection
  • Oregon Measure 87 (57%) : Allow state judges to teach part time at public colleges/universities
  • Tennessee Amendment 2 (66%): Appoint-confirm-retention election method for state’s appellate judges

Losers

  • Florida Amendment 3 (48%): Allow governor to prospectively appoint judges to appellate courts — when the judge’s term is about to expire — before the vacancy occurs
  • Hawaii Amendment 3 (22%): Increase mandatory judicial retirement age from 70 to 80
  • Louisiana Amendment 5 (42%): Eliminate mandatory judicial retirement age

Louisiana Amendment 5: 32 states impose some form of mandatory retirement age on most or all of their judges

NOTE: This is a repost from the discussion related to Hawaii’s constitutional amendment on the November ballot to increase their mandatory judicial retirement age from 70 to 80.

The establishment of a mandatory age of 70 is consistent with the practice in the other states. All told, some 32 states have a general mandatory judicial retirement age. At the appellate level, it is fairly straightforward: the majority of states (21) set seventy as the age, however some states allow a judge to serve out the term or the year in which they reach the threshold age.

At the trial court level, things become somewhat murkier. For example in at least 8 states with mandatory retirement ages for higher courts (appellate, general jurisdiction) some or all of the state’s lower court judges are exempt. For example, in South Carolina appellate and trial judges generally must retire at age 72, but Probate and Municipal Judges have no specific mandatory retirement age. Georgia, on the other hand, has the opposite situation: there is no mandatory retirement age for their top courts but some Municipal Courts have imposed mandatory retirement ages on their judges.

The table below gives the general overview of retirement ages, detailed state by state analysis based on court type and other particulars below the fold.

Age # of States States
70 21 Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Dakota, Virginia, Wyoming
72 4 Colorado, Iowa, North Carolina, South Carolina
74 1 Texas
75 5 Indiana, Kansas, Oregon, Utah, Washington
90 1 Vermont
None 18 California, Delaware, Georgia, Idaho, Illinois*, Kentucky, Maine, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Rhode Island, Tennessee, West Virginia, Wisconsin

*Illinois statute struck down as unconstitutional but never formally repealed

Continue reading Louisiana Amendment 5: 32 states impose some form of mandatory retirement age on most or all of their judges

Louisiana Amendment 5: State constitution has only had mandatory judicial retirement age for all judges since 1974

Where many states can lay claim to centuries of imposing mandatory judicial retirement ages through their state constitutions (such as New York which I detailed here), Louisiana was relatively late in adopting the practice, only putting a constitutional provision into effect starting in 1921 and even then making it apply only to the Supreme Court. It wasn’t until 1974 that mandatory judicial retirement became generally applicable to all judges in the state.

Constitution of 1812: Serve for life, no age limit, removed from office for “any reasonable cause” by 3/4 of legislature

At the time of admission into the Union, Louisiana’s constitution read very much like the U.S. Constitution, including and in particular the provision for the appointment of judges for life in Art. IV, Sec. 5. However, judges could be removed for “any reasonable cause” other than an impeachable offense (such as senility and infirmity) by a 3/4ths majority of the legislature.

The judges both of the supreme and inferior courts shall hold their offices during good behaviour; but for any reasonable cause which shall not be sufficient ground for impeachment, the Governor shall remove any of them, on the address of three fourths of each house of the general assembly: Provided however, That the cause or causes for which such removal may be required, shall be stated at length in the address, and inserted on the journal of each house.

Constitutions of 1845, 1852, 1861: end of life terms, no age limit, removed from office for “any reasonable cause” by 3/4 of legislature

The 1845 constitution rewrote the provisions related to life terms for judges (Supreme Court judges, for example, would now have 8 year terms while District Court judges would serve 6 years). No age limits were imposed, but provisions for removal “for any reasonable cause” remained in place (Art. IV, Sec. 73)

The judges of all courts shall be liable to impeachment; but for any reasonable cause, which shall not be sufficient ground for impeachment, the governor shall remove any of them on the address of three-fourths of the members present of each house of the general assembly. In every such case the cause or causes for which such removal may be required shall be stated at length in the address, and inserted in the journal of each house.

The 1852 constitution operated similarly. While extending terms for some offices (Supreme Court from 8 years to 10) and providing trial court judges were to be elected, it once again declined to impose a mandatory judicial retirement age. It also kept the provision allowing the legislature to remove “for any reasonable cause.” (Art. IV, Sec. 73) The 1861 constitution, adopted when the state secede from the Union, simply replicated the exact same language (Art. IV, Sec. 73)

Constitutions of 1868: no age limit, removed from office for “any reasonable cause” by 2/3 of legislature

The constitution that Louisiana adopted after the Civil War made it easier to remove judges for “any reasonable cause” such as senility and infirmity. Art. IV, Sec. 81 of the 1868 constitution dropped the required vote by the legislature to remove a judge for a non-impeachable cause from 3/4 to 2/3.

The judges of all courts shall be liable to impeachment for crimes and misdemeanors. For any reasonable cause the governor shall remove any of them, on the address of two-thirds of the members elected to each house of the general assembly. In every such case the cause or causes for which such removal may be required shall be stated at length in the address and inserted in the journal of each house.

Constitutions of 1879 and 1898: no age limit, removed from office for “any reasonable cause” by 2/3 of legislature OR higher court for “incompetency”

The 1879 (Art. IV, Sec. 93), and 1898 (Art. 220 ) constitutions kept the same provision regarding a 2/3 vote of the legislature to remove a judge “for any reasonable cause” but it also allowed for the state’s Supreme Court (Art. 200 / Art. 221) or District Courts (Art. 201 / Art. 222) to remove judges of courts below then, on request of 25 or 50 local citizens, for what would otherwise be the impeachable offenses of “for nonfeasance or malfeasance in office [or] for incompetency…” The case would be brought by the local district attorney or the state’s attorney general depending on the level of court.

Constitution of 1913: no age limit but Supreme Court can retire on full pay at age 75, removed from office for “any reasonable cause” by 2/3 of legislature OR higher court

The constitution adopted by Louisiana in 1913 kept the older language of removal of judges by the legislature for reasonable cause  (Art. 220) or by a higher court (Art. 221 and Art. 222) but provided the first inklings of a specified judicial retirement age. Specifically, members of the Supreme Court could, but were not required, to retire on full page at age 75 (Art. 86)

The Chief Justice or any of the Associate Justices of the Supreme Court may retire on full pay when he shall have reached seventy-five years of age, provided said Justice has served continually, not less than fifteen years prior to his said retirement.

Constitution of 1921: High level court judges must retire at age 75 on full pay, may retire at 70 with 2/3 pay, removed from office for “incompetency” by higher court

The 1921 constitution (Art. VII, Sec. 8) marked the first specific mandatory judicial retirement age and applied to the three highest courts in the state (Supreme Court, Court of Appeals, District Court). Judges were required to retire, on full pay, at age 75. They were given the option to retire at age 70 with 2/3 pay. Moreover, Supreme Court justices could also retire on 2/3 pay if they could demonstrate mental/physical incapacity as determined by the other members of the Supreme Court.

Also kept was the provision that allowed the Supreme Court (Art. IX, Sec. 5) and District Court (Art. IX, Sec. 6) to remove judges of lower courts for “incompetency.” Added was a provision that the other justices of the Supreme Court could remove one of their own in a similar fashion (Art. IX, Sec. 4).

Constitution of 1974: All judges must retire at age 70, removed from office for “disability”

Commencing with the 1974 Louisiana Constitution all judges were required to retire at the age of 70 (Art. V, Sec. 23(B))

Except as otherwise provided in this Section, a judge shall not remain in office beyond his seventieth birthday.

The “except as otherwise provided” dealt with two factors. First, judges who were in office under the 1921 constitution could remain. Second, the new mandatory retirement provision would not take effect until the state legislature created a retirement system for all judges. (Art. V, Sec. 23(A))

The other provision was what to do with judges, whether older or not, who were unable to perform their duties but who weren’t corrupt or criminal (i.e. impeachable offenses). Under the 1974 constitution, the Judiciary Commission could recommend that the Supreme Court “involuntarily retire” a judge “for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent.” (Art. V, Sec. 25(C))

Amendment 4 of 1995: Failed to increase age to 75

As I mentioned in 2013 when the issue came up in New York, Louisiana made an effort to increase the mandatory retirement age in 1995 as Amendment 5. As I noted previously:

Among the 14 items on the 1995 ballot, it was one of only two that lost. The loss can at least in part be attributed to bad timing; the same 1995 ballot included as Amendment 2 term limits for the legislature. Amendment 2 passed overwhelmingly 75%-25%, making the “mere” 38%-62% drubbing Amendment 4 took somewhat remarkable.

Measure 15 of 2003: Succeeded in extending to end of term judge reaches 70

The more successful effort at change for Louisiana was in 2003. Measure 15, approved 53-47% allowed for the judge to serve out the remainder of the term in which they hit 70. Thus the language of Art. V, Sec. 23(B) set for possible repeal this November now reads

Except as otherwise provided in this Section, a judge shall not remain in office beyond his seventieth birthday. A judge who attains seventy years of age while serving a term of office shall be allowed to complete that term of office.

 

Changing civil jurisdiction thresholds – Part 2

This second in a series of posts looks at legislative efforts to change the civil jurisdiction thresholds in state limited and general jurisdiction courts in the last decade. For a listing of all current civil jurisdiction thresholds, click here.

Hawaii to Maryland below the fold.

Continue reading Changing civil jurisdiction thresholds – Part 2

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 2

This second installment looks at efforts to change state constitutional grants of rulemaking authority to courts of last resort, typically called the “supreme court”, or judicial councils.

My colleagues here at the National Center have a listing of all such provisions here.

Hawaii to Maryland below the fold.
Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 2

Louisiana: voters will get to decide whether to repeal state’s mandatory judicial retirement age

On May 28 the Louisiana Senate passed HB 96, a repeal of the state constitution’s mandatory judicial retirement age. The House had already passed it in April. With the Senate’s action voters will be asked on November 4:

Do you support an amendment to remove the constitutional requirement that a judge retire upon attaining the age of seventy or, if his seventieth birthday occurs during his term, that he retire upon completion of that term? (Amends Article V, Section 23)

This will be the fifth time in the last 4 elections voters have had the chance to increase or repeal the mandatory judicial retirement age in their state; three prior efforts failed (Ohio 2011, Arizona 2012, New York 2013; details here and here) and Hawaii will be voting on an effort to increase their mandatory judicial retirement age from 70 to 80 this November as well.

According to the actuarial note on the bill, of the state’s 320 district, appellate and city judges, 39 are now between the ages of 65 and 70, while 56 are between 60 and 65.

 

Louisiana legislature creates Capital Punishment Fiscal Impact Commission, wants to look at cost of death penalty including court security & jurors

Last week the Louisiana legislature gave final approval of SCR 54, establishing a Capital Punishment Fiscal Impact Commission to determine the cost of implementation of the death penalty in the state. Although the 15-member commission includes no one from the courts, several of the 23 items they are supposed to look at are directly related to court operations including

 (8) Expert witnesses, including but not limited to the costs incurred by the coroner, the court for the appointment of sanity commissions, and other capital crime and punishment experts.

(10) Facilities, including any additional costs to the court, such as costs for increased security.

(11) Juries, including the cost of jury selection and sequestration.

(13) The preparation and maintenance of records, including transcription, lodging of records, and maintaining case files.

(14) Appellate and post-conviction proceedings, including motions, writs of certiorari, and state and federal petitions for post-conviction relief.

Their final report is due by December 2015.

Louisiana and California legislative committees approve bills to require courts report how often they are punishing lawyers for filing frivolous cases/pleadings

Plans in California and Louisiana to require courts report how often they are penalizing attorneys and parties for frivolous filings are advancing through the committee process.

The California proposal first discussed here takes the form of AB 2494 as amended. It would resurrect a statute the expired in 1994 (Code of Civil Procedure 128.5) regarding punishment and sanctions for frivolous “actions or tactics” and require the courts, through the state’s Judicial Council, report out on punishments.

On or before June 30, 2018, the Judicial Council shall submit a report to the Legislature examining the impact and effect of this act, including the number of motions made under both Sections 128.5 and 128.7 of the Code of Civil Procedure, the number of motions made pursuant to those sections resulting in an award of sanctions, the nature and amount of any sanctions awarded pursuant to those sections, and whether or not the enactment of Section 128.5 of the Code of Civil Procedure in this act has had a demonstrable effect on reducing the frequency and severity of bad faith actions or tactics that would not be subject  to sanction under Section 128.7 of the Code of Civil Procedure.

AB 2494 was approved by the Assembly Appropriations committee on a 17-0 vote on May 23.

The Louisiana legislative plan (HCR 137) first discussed here two weeks ago is similar to the California bill. HCR 137 requests the Judicial Council of the Supreme Court of Louisiana to gather information in order to determine the frequency and effectiveness of judicial enforcement of sanctions for filing
pleadings that violate Code of Civil Procedure Article 863(B). Where the original HCR 137 used the word “frivolous” three times in the text, the amended version dropped that word and replaced it with specific reference to CCP 863(B) which covers more than just “frivolous” filings and encompasses filings made for an “improper purpose”, that lack “evidentiary support”, or that fail to meet several other criteria. The amended bill was approved 14-0 by the House Judiciary Committee on May 22.

 

Louisiana: Plan to let supreme court reallocate judicial vacancies pulled from proposed constitutional amendment

A Louisiana plan to let the state’s supreme court reallocate judicial vacancies was pulled from a proposed constitutional amendment this week. As introduced and approved unanimously by the Louisiana Senate, SB 216 would have amended the state’s constitution to allow the supreme court to move the judicial vacancy elsewhere in the state or recommend to the legislature that the seat be repealed outright. The House Civil Law and Procedure Committee, however, voted 10-0 to eliminate the provision and instead provide language giving the legislature the power to do so by law.

The amended bill now goes to the House Legislative Bureau for its review.