First, Maryland, then Connecticut, now Maine considered getting rid of partisan elections for probate courts

Most states use multiple selection methods for their courts, with some judges appointed, others elected, etc. Three states in particular (Connecticut, Maryland, and now Maine) want to end partisan elections for one particular type of court: probate.

First, some background.

Most states do not have separate courts to handle probate matters, instead such matters are handled as a division of another court (Probate Court vs. Superior Court, Probate Division). New Hampshire, for example, consolidated its Probate Court into the newly created Circuit Court, Probate Division only a few years ago. About 15 states do, however, still retain courts whose primary or sole purpose is probate matters

  • Alabama Probate
  • Colorado Denver Probate (Probate matters in other parts of state handled in District Court)
  • Connecticut Probate
  • Georgia Probate
  • Indiana Probate (Remains only in St. Joseph’s County; probate matters in other parts of state handled in Superior or Circuit Court)
  • Maine Probate
  • Maryland Orphan’s (Montgomery and Harford counties, probate matters handled in Circuit Court)
  • Massachusetts Family & Probate
  • Michigan Probate
  • New Mexico Probate
  • New York Surrogates’
  • Rhode Island Probate
  • South Carolina Probate
  • Tennessee Probate (Shelby County only)
  • Vermont Probate

In addition to their unique jurisdiction, what sets these courts apart is that they often have a judicial selection system that is not in keeping with most of the other judges in the state. For example, the judges of Georgia’s higher courts (Supreme, Court of Appeals, Superior, State) are non-partisan races; Probate Court races are partisan.

This year’s particular interest in changing the method of judicial selection started January 23 in Maryland where Orphan’s Court judges are elected on a partisan basis. SB 327 was filed January 23 to require nonpartisan elections instead. An identical House bill (HB 515) was filed a week later on January 30.

The next state to consider the issue was Connecticut, where Probate Court judges also run in partisan elections. HJR 17 is a constitutional amendment that would shift the Probate Court judges into the state’s existing merit selection system, which is used for the state’s other courts (Supreme, Appellate, Superior).

The third state to consider such a move was Maine. HB 369, filed February 19, would end partisan elections for Probate Judges, Registers of Probate and Registers of Deeds. Instead, the offices would be subject to gubernatorial appointment with senate confirmation in the same way all other state judges are currently appointed.

Maine bill would require courts put all public records online

Most states have some provision for putting at least some court documents online, however a bill before the Maine House may be the most expansive form proposed in the nation.

HB 110 amends the state’s information practices law to provide “A public entity shall make all public records in the public entity’s possession available for viewing on a publicly accessible site on the Internet”.

Public entity is already defined in law as including the judiciary (“the Judicial Department”).

Public records under existing law include “any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension, that is in the possession or custody of an agency or public official of this State or any of its political subdivisions, or is in the possession or custody of an association, the membership of which is composed exclusively of one or more of any of these entities, and has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business…” subject to specified exceptions.

The bill is currently before the Joint Committee on the Judiciary.

 

Maine Legislative Year in Review: veterans courts, courthouse construction

New laws affecting the courts enacted by the Maine legislature in 2012 include the following:

HB 1250 Authorizes the Chief Justice of the Supreme Judicial Court to establish veterans treatment courts. Authorizes the State Court Administrator to seek federal funding for these courts.

SB 566 ORIGINAL: Authorizes the Maine Governmental Facilities Authority to issue securities for the costs associated with construction of court facilities. AS AMENDED: Same, but allows any remaining funds from authorized securities issued for paying the costs associated with the construction to be used for planning for additional court facilities.

SB 622 Implements recommendations of the Commission To Study Priorities and Timing of Judicial Proceedings in State Courts, including docketing/calendaring priority for various matters.

Judicial Compensation Commissions meeting in Louisiana, Maine

Louisiana’s Judicial Compensation Commission, which is statutorily housed within the legislature, meets October 30 to continue its ongoing study of judicial salaries.

Meanwhile Maine’s 3-member Judicial Compensation Commission (2 members selected by the legislature’s leadership plus 1 member selected by the governor) which is staffed by the Legislative Council was to meet October 22. That meeting has apparently been postponed to November 13.

Maine’s Governor vetoes bill that would allow court facilities bonds to be issued without voter approval; legislature to consider veto override today

Maine’s legislature has been roiled recently with the question of whether or not bonds issued from construction of government facilities should have to go to the voters. One bill in particular (HP 603, also called LD 807) as introduced would have required that all bonds previously issued by the Maine Governmental Facilities Authority without voter approval go to the voters. It was amended with an exception: bonds for court facilities would not require voter approval.

Governor Paul LePage has now vetoed the bill as amended. In his veto message,  the Governor cited a desire for consistency between the branches in how bonds/debts are approved (or not) by voters.

The legislature is back in session today (5/31) to consider this and other vetoes.

Merit selection: comprehensive state-by-state review of efforts to modify or end existing systems

The debate over merit selection systems has reached a head in the last several years, with strenuous efforts at play to create merit selection systems in states which lack them coupled with vigorous efforts in other states that have merit selection to heavily modify or end their systems.

Over the next two days I’m going to look at both aspects of merit selection. Today I’ll be examining 2012 efforts to modify or end existing merit selection systems as created by constitutional provision or statute. Several states use “merit selection” entirely as the result of governors’ creating nomination panels; because these don’t involve the legislature I will not focus on them. All information as to which states have what is from the American Judicature Society’s 2011 report “Judicial Merit Selection: Current Status” located here.

Tomorrow (April 11) I will examine efforts to implement statutory and/or constitutional merit selection systems in states that do not currently have them.

Alabama – Circuit Court in select counties [interim only]: No activity

Alaska – Supreme Court, Court of Appeals, Superior Court: No activity

Arizona – Supreme Court, Court of Appeals, Superior Court in larger counties: A 2011 bill (SCR 1001) revising numerous provisions of the merit selection system (commission composition, number of names submitted, etc.) plus increasing judicial terms will be on the 2012 ballot. A 2012 effort to simply end the merit selection system and replace with partisan elections (SCR 1034 / SB 1371) was rejected in committee.

Colorado – Supreme Court, Court of Appeals, District Court: No activity

Connecticut – Supreme Court, Appellate Court, Superior Court: No activity

Florida – Supreme Court, District Court of Appeal; Circuit [interim only]: A 2011 bill (HJR 7111) requiring Supreme Court nominees chosen by the governor be subject to Senate confirmation will be on the 2012 ballot. Several attempts to change the composition of the nominating commissions and allowing a governor to fire a majority of the commissioners at will (vs. staggered terms) failed at the last minute (HB 971 / SB 1570).

Hawaii – Supreme Court, Intermediate Appellate Court of Appeals, Circuit Court, District Court: Constitutional amendments HB 2343 and SB 2209 would require judicial selection commissions to provide more public disclosure of their proceedings, specifically information about those whose names are considered to fill vacancies. The Senate version appears now to be the primary bill, having been approved by the full Senate and the House Judiciary Committee. Another constitutional amendment, SB 2205, would lower the number of names submitted to fill vacancies: for Supreme, Intermediate Appellate & Circuit: from 4-6 to specifically 3. For District: from not less than 6 to specifically 3.

Idaho – Supreme Court, Court of Appeals, District Court [interim only]: No activity

Indiana – Supreme Court, Court of Appeals, Tax Court, Superior and other trial courts in select counties: Proposals to substantially revised (SJR 13) or simply end (SJR 14) merit selection failed to advance.

Iowa – Supreme Court, Court of Appeals, District Court: Several bills introduced in 2011 to either alter or end merit selection were carried over into the 2012 session (see database for full list). None advanced.

Kansas – Supreme Court, Court of Appeals, District Court at district’s discretion : The prime focus was in ending merit selection for the Court of Appeals; because it is a statutorily created court the change would only require a change in statute rather than a constitutional amendment. While meeting with House approval in 2011 (HB 2101) the Senate failed to take up the bill. Undaunted, the House began attaching it to unrelated pieces of legislation (SB 83) and seeking to end the commission on judicial performance which makes recommendations for or against retention of judges (HB 2396).

Kentucky – Supreme Court, Court of Appeals, Circuit Court; District Court [interim only]: No activity

Maine – Supreme Judicial Court and Superior Court: No activity

Minnesota – District Court [interim only]: No activity

Missouri – Supreme Court, Court of Appeals, Circuit Courts in select counties: The state synonymous with merit selection saw efforts to outright end merit selection fail to advance (HJR 77, SJR 41, SJR 42). Efforts to modify the system were and are active. SJR 51 would allow the governor to appoint all nominating commission members subject to senate confirmation and a prohibition of members of the bar, judiciary, or their spouses from serving. HJR 44 increases the names given to the governor to chose from 3 to 5 and allows the governor to reject the first 5 person panel, ask for a second, and then select from the 10. It also alters the composition of the nominating commissions and, like the Florida provisions attempted to do, allows the governor to fire commissioners appointed by prior governors. HJR 44 was approved by the House Special Standing Committee on Judicial Reform 3/21/12 and is currently in the House Rules Committee.

Montana – Supreme Court and District Court [interim only]-: Legislature not in session.

Nebraska – Supreme Court, Court of Appeals, District Court, County Court: No activity

Nevada – Supreme Court and District Court [interim only]: Legislature not in session.

New Mexico – Supreme Court, Court of Appeals, District Court, Metropolitan Court: SB 24, which was approved by the Senate but not the House, would have created a special fund to help pay for the judicial nominating commissions associated with the state’s merit selection system. Funds were to have come from gifts, donations, etc. plus $50,000 a year from the legislature itself as an automatic, recurring appropriation.

New York – Court of Appeals (court of last resort in state): A single bill introduced in 2011 (AB 309) would have required the nominating commission submit all qualified names to governor. It has failed to advance.

North Dakota – Supreme Court and District Court: Legislature out of session

Oklahoma – Supreme Court, Court of Criminal Appeals, Court of Civil Appeals, District Court [interim only]: 2011 carry over bills SJR 36 would have ended merit selection for the appellate courts, allowing the governor to appoint anyone qualified subject to senate confirmation while SB 621 would have required nominees chosen via the state’s merit selection system be subject to senate confirmation. Neither have advanced in 2012. Other carry over bills from 2011 to end merit (HJR 1008 & HJR 1009 for appellate courts; SB 543 to fill interim vacancies in District Courts) went nowhere.

Rhode Island – Supreme Court, Superior Court, Family Court, District Court : No activity Update 4/11/12: HB 8043 filed just days ago extends until 2013 an existing law allowing any individual whose name was publicly submitted to the governor by the judicial nominating commission to be eligible for subsequent nomination by the governor.

South Dakota – Supreme Court, Circuit Court [Interim only]: No activity

Tennessee – Supreme Court, Court of Criminal Appeals, Court of Appeals, Trial Courts [interim only]: Tennessee has seen literally dozens of bills introduced in 2011 and carried over, plus new bills in 2012, dealing with the state’s merit selection system which is due to “sunset” and expire soon.

Put merit selection explicitly in constitution:

HJR 753 Adds legislative confirmation of nominees

HJR 830

SJR 183

SJR 710 Adds legislative confirmation of nominees

Extend merit to June 30, 2013:

HB 3575 / SB 3321

HB 2356 / SB 2346

HB 2537 / SB 2345

Extend merit to June 30, 2014:

HB 3451 (nominating commission only)

End merit:

HB 173 / SB 127

HB 231 / SB 281

HB 958 / SB 699

HB 3615 / SB 3714

SJR 475

SJR 635

Modify:

HB 1017 / SB 82 Retains merit selection, but makes judicial nomination commission recommendations advisory; allows governor to ignore recommendations.

HB 1702 / SB 646 Requires judges selected via merit selection system receive 75% yes in retention election.

HB 3452 / SB 2794 Retains merit selection, but alters nomination process and adds confirmation.

HB 3691 / SB 3652 Requires House and Senate speakers appoint all nine members of the judicial evaluation commission since the judicial council no longer exists.

Utah – Supreme Court, Court of Appeals, District Court, Juvenile Court: No activity

Vermont – Supreme Court, Superior Court, District Court: No activity

West Virginia – Supreme Court of Appeals, Circuit Court, Family Court [interim only]: No activity

Wyoming – Supreme Court, District Court, Circuit Court: No activity

 

Maine Commission To Study Priorities and Timing of Judicial Proceedings in State Courts meets December 13

Maine’s Commission To Study Priorities and Timing of Judicial Proceedings in State Courts is set to meet next week (prior post here). The sole duty of the commission is to “study the priority and timing of judicial proceedings in state courts including, but not limited to, judicial proceedings that require priority treatment pursuant to statute.”

Coming out of its first meeting on October 12, the Commission made several preliminary recommendations. It also opted to name a subcommittee to work with the Judicial Branch to examine the priority of civil and criminal orders of protection from harassment.

A draft agenda for the December 13 meeting indicates the focus of the meeting will be to review the report from protection from the harassment subcommittee, finalize a commission recommendation, and review and discuss a draft report and draft legislation.

Bans on court use of sharia/international law: Pennsylvania bill introduced

Welcome New York Times readers!

Welcome Post-Gazette readers!

Since the last update of this list in October, one piece of legislation has been introduced.  Pennsylvania’s HB 2029 bans court references to any “foreign legal code or system” if doing so would impair constitutional rights.

Full roster of 2010 bills are available. 2011 and 2012 bills after the jump. Continue reading Bans on court use of sharia/international law: Pennsylvania bill introduced

State-by-State 2011 Legislative Year in Review: Maine

Maine’s legislature approved of one constitutional amendment related to the courts in 2011:

HB 397 Provides if legislature fails to reapportion legislative districts or if the districts are successfully challenged, the Supreme Judicial Court is to make the reapportionment.

New laws or resolutions affecting the courts enacted or adopted by the Maine legislature in 2011 include the following:

HB 32 Allows family law magistrates to wear black robes.

HB 935 Eliminates the requirement that the State Court Library Committee meet at least 4 times a year and gives the State Court Library Committee flexibility in the provision of resources to law libraries.

SB 297 Creates the Commission To Study Priorities and Timing of Judicial Proceedings in State Courts. Commission to “study the priority and timing of judicial proceedings in state courts including, but not limited to, judicial proceedings that require priority treatment pursuant to statute.” Reduces the size of the commission and revises the membership to include 3 Senators, instead of 2. Deletes as required members representatives of the Maine State Bar Association, the Maine Prosecutors Association and Pine Tree Legal Assistance. Requires the commission to seek the participation of these organizations as well as the Maine Commission on Indigent Legal Services and the Maine Association of Criminal Defense Lawyers. Authorizes the commission to seek the participation of any other individuals or organizations.

SB 337 Allows the judicial branch to contract with state agencies or private debt collection services to collect overdue fines and fees

Why Senate reconfirmation for incumbent state judges? Why not House? Or joint? Or election?

Several weeks ago I looked at the historical development of why some states have legislative involvement in judicial confirmation for their appellate courts and whether it was only the state’s senate that had a role or if it was a joint process. To reiterate, one of the big presses in the last year has been to put into place something akin to the “federal model” of senate (only) confirmation. But unlike the federal model, which includes life tenure, almost all these proposals include a reconfirmation at some point.

It should be noted that of the 11 states that give their legislature some role in the confirmation of appellate judges:

  • 6 give at least some appellate  judges a decade or more on the bench between reconfirmations: Delaware (12 years), Hawaii (10 years), South Carolina (10 years), Utah (Supreme Court: 10 years), Virginia (Supreme Court: 12 years),  and New York (Court of Appeals: 14 years)
  • 3 give reconfirmation to the House and Senate: Connecticut, South Carolina, and Virginia
  • 3 remove the legislature outright from reconfirmation: Hawaii (judicial nominating commission); Maryland and Utah (retention election)
  • 2 at least have the option of lifetime or near-lifetime appointment: Rhode Island (life) and New Jersey (until 70 after reconfirmation)

Roles of legislatures in appellate judicial re-confirmation

Connecticut: 8 year term for Supreme Court and Appellate Court. Judicial Selection Commission evaluates incumbent judge, with statutory presumption “that each incumbent judge who seeks reappointment to the same court qualifies for retention in judicial office” and provides burden on commission to demonstrate otherwise (see 51-44a (e) and (f), of the Connecticut General Statutes). Commission sends reappoint/don’t reappoint recommendation to Governor who renominates incumbent judge. Legislature jointly reconfirms.

Delaware: 12 year term for the Supreme Court. Governor renominates. Senate reconfirms.

Hawaii: 10 year term for Supreme Court and Intermediate Appellate Court. Judicial selection commission reappoints.

Maine: 7 year term for Supreme Judicial Court. Governor renominates. Joint House/Senate legislative committee recommends reconfirmation or rejection. That recommendation is binding unless the Senate overrides with 2/3 vote.

Maryland: 1 year (at least) initial term for Court of Appeals and Court of Special Appeals. Yes/no retention election. 10 year subsequent term.

New Jersey: 7 year initial term. Governor renominates. Senate reconfirms. Service until 70 for subsequent term.

New York (Court of Appeals, state’s court of last resort): 14 year term for Court of Appeals. Commission on Judicial Nomination resubmits names along incumbent’s to Governor. Governor renominates incumbent or nominates new person. Senate confirms or reconfirms.

NOTE: the state’s primary intermediate appellate court, the Appellate Division, has no role for the legislature in terms of reconfirmation. The Governor elevates and may reappoint to the Appellate Division from the judges elected locally in partisan elections to the general jurisdiction court (confusingly called the “Supreme Court”). For example, when his 14 year term in the trial court ended in 2011, the Hon. Henry J. Scudder had to run for re-election and then be reappointed back to the Appellate Division, Fourth Department (see story here).

Rhode Island: N/A (Serve for life)

South Carolina: 10 year term for the Supreme Court, 6 year term for the Court of Appeals. Judicial Merit Selection Commission evaluates incumbent judge and all others seeking position. Commission sends names to Legislature. Legislature jointly reappoints or appoints someone else. (See Title 2, Chapter 19 S.C. Code)

Utah: 3 year (at least) initial term. Yes/no retention election. 10 year subsequent term for Supreme Court, 6 year subsequent term for Court of Appeals.

Virginia: 12 year term for the Supreme Court, 6 year term for the Court of Appeals. Legislature jointly reappoints or appoints someone else.