Changes to mandatory judicial retirement ages: Virginia plan may fall apart over what judges get the increase; Oregon Senate unanimously approves repeal; dead in Maryland; small change moving in North Carolina; debated in Massachusetts

Since last month’s update on the subject of mandatory judicial retirement age changes there’s been several developments. The biggest stumbling block: which judges should get the increase in the age?

Maryland

The Senate approved 47-0 a plan (SB 847) to increase the mandatory retirement age for judges from 70 to 73 (original bill called for 75) on March 24. The Senate plan would have applied to all judges after adoption of the amendment. The House, however, had various ideas on how this would impact current judges. The House Judiciary Committee approved amendment 172916/1 which would have allowed any judge that

reaches the age of seventy years before the date that the judge is eligible to be elected, appointed, or reappointed

to stay on to 73 or the end of their current term with the consent of the governor. A later floor amendment (393229/1) added the word “re-elected”

reaches the age of seventy years before the date that the judge is eligible to be elected, re-elected, appointed, or reappointed

The changes occurred on April 9, just days before the legislature adjourned sine die. As a result, the effort failed this year.

Massachusetts

The judges of Massachusetts only fell under the state’s mandatory judicial retirement age in the 1970s (Amendment LVII adopted in 1972)

[U]pon attaining seventy years of age said judges shall be retired.

Starting in 2009 there have been efforts to increase this age to 76. The first two attempts (HB 1640 of 2009/2010 & HB 1826 of 2011/2012) were approved by the Joint Committee on the Judiciary but proceeded no further. HB 68 of 2013/2014 saw rejection by the committee. The bill is now back up as HB 1609 of 2015/2016 and was heard before the Joint Committee on April 15.

North Carolina

The House approved 116-0 on March 25 a bill that would provide a minimal extension to the state’s judicial retirement age. Currently judges must retire on the last day of the month in which they reach 72. Under HB 50 as approved they may serve last day of the year they reach 72.

A counter proposal (HB 205) to extend this to the last day of the year they reach 75. Was approved by the House Judiciary IV committee on March 18 but has remained in locked up in the House Pensions and Retirement committee.

Oregon

On April 15 the Oregon Senate approved 30-0 a plan to eliminate the state’s mandatory retirement age or, to be more precise, repeal the state constitutional provision allowing the legislature to set such an age. SJR 4 would eliminate language from the state constitution that

[A] judge of any court shall retire from judicial office at the end of the calendar year in which he attains the age of 75 years. The Legislative Assembly or the people may by law: Fix a lesser age for mandatory retirement not earlier than the end of the calendar year in which the judge attains the age of 70 years.

The constitutional amendment is now pending on the House Speaker’s desk awaiting committee assignment.

Virginia

After 9 years of trying, a plan to increase the retirement age for at least some judges in Virginia passed the House and Senate, but the decision to increase for some judges and not others may result in a veto by the governor.

At issue under HB 1984 and SB 1196 was what judges should get the increase from 70 to 73. The House/Senate compromise approved provided that

  • all appellate judges effective July 1, 2015 would get the increase to 73
  • trial judges elected or appointed after July 1, 2015 would get the increase to 73
  • trial judges elected or appointed prior to July 1, 2015 would still have to retire at 70

The governor, however, issued a “recommendation” to eliminate the three-tired plan (Virginia governors can return a bill without a veto to the legislature “with recommendations for their amendment“). The Senate voted in favor of eliminating the three-tired plan 31-8. The House rejected it 27-63. Local media reports indicate the unamended bill will now go back to the Governor as early as today (Friday) for him to sign or veto.

Continue reading Changes to mandatory judicial retirement ages: Virginia plan may fall apart over what judges get the increase; Oregon Senate unanimously approves repeal; dead in Maryland; small change moving in North Carolina; debated in Massachusetts

Three states voted Tuesday on increases to mandatory judicial retirement: effort dies 49-21 in Arkansas House when 28 members fail to vote; amended versions advance in AL & MD

The efforts to increase mandatory judicial retirement ages have seen a great deal of activity in the last 24 hours.

  • Alabama’s House approved 64-35 with 1 abstention a plan to increase their age from 70 to 72 after members objected to the original proposed increase to 75. The Alabama provision is not a hard and fast retirement age; instead it addresses the maximum age a judge can be in order to be elected or appointed to a judgeship.
  • Maryland’s Senate Judicial Proceedings Committee effectively had the same idea as their Alabama House counterparts, reducing a planned increase in the mandatory judicial retirement age from 70 to 75 down to 73 instead. The amended plan passed on a 7-3 vote.
  • 28 Arkansas House members left the floor or failed to vote and 2 voted “present” when that state’s effort to increase the retirement age from 70 to 72 came up for a vote. As a result, despite receiving a 49 yes vs. 21 no vote, the bill failed under a provision of the Arkansas constitution that requires a majority of the entire body (51/100) to approve a bill.

Details of all increase efforts below the fold.

Continue reading Three states voted Tuesday on increases to mandatory judicial retirement: effort dies 49-21 in Arkansas House when 28 members fail to vote; amended versions advance in AL & MD

22 bills to increase or eliminate mandatory judicial retirement ages: moving in IN, NJ, OR, PA, VA; killed in UT & WY

The wave of interest in increasing or eliminating the mandatory retirement ages for judges continues apace in the state legislatures. Of the seven states that have voted on these proposals:

  • 1 state (Virginia) has passed an increase and is awaiting action by the governor
  • 2 states (Indiana, Pennsylvania) have seen at least one chamber pass the proposal
  • 2 states (New Jersey, Oregon) have seen committee approval
  • 2 states (Utah and Wyoming) saw their efforts killed

Details below the fold.

Continue reading 22 bills to increase or eliminate mandatory judicial retirement ages: moving in IN, NJ, OR, PA, VA; killed in UT & WY

Bills in Minnesota would end use of incumbent designation on ballots for judges seeking reelection; a look at states that use such designations

Four Six states provide for the general designation of a judge as an incumbent on the election ballot: Arkansas, California, Michigan, and Minnesota. At the same time Texas is considering joining in on this practice, two bills filed in the last several weeks in Minnesota would end the practice in that state.

1/30/2017 update: 6 states, Georgia and Oregon included.

First, some background.

While all four six states mentioned use some sort of incumbent designation, they do so in four different manners. This is how it appears in Arkansas under A.C.A. § 7-7-305 (sample ballot from here). Note that in Arkansas you may use the word “Judge” even if running for a higher court (i.e. a Circuit Judge running for Supreme Court Justice). For example when she ran for the Supreme Court in 2014, Court of Appeals Judge Robin Wynne was identified on the ballot as “Court of Appeals Judge Robin Wynne.”

Untitled

And this from California under Election Code § 13107 (sample ballot from here)

UntitledIn Michigan several statutes depending on court type allow for the word “Incumbent Position” balloting, among them MCLS § 168.409b (Court of Appeals), § 168.424a (Circuit), § 168.426d (Municipal Courts of Record), § 168.433 (Probate), and § 168.467b (District). (UPDATE: A reader also points to this constitutional provision that “There shall be printed upon the ballot under the name of each incumbent justice or judge who is a candidate for nomination or election to the same office the designation of that office.”) The result is that a judge runs with their current office below their name, as for example from this sample ballot.

Ballot_2008_back[1]

Update 1/30/2017

Georgia law (21-2-285.1) provides that “The incumbency of a candidate seeking election for the public office he or she then holds shall be indicated on the ballot.” An example from this sample ballot.

Minnesota Statutes 204B.36(5) provides that “If a chief justice, associate justice, or judge is a candidate to succeed again, the word “incumbent” shall be printed after that judge’s name as a candidate.” An example from this sample ballot.

election2014_RamseySampleBallot_p2[1]

Update 1/30/2017

Oregon law (ORS 254.125) provides that “The word “incumbent” shall follow the name of each candidate for the Supreme Court, Court of Appeals, Oregon Tax Court or circuit court who is designated the incumbent by the Secretary of State under ORS 254.085. ” An example from this sample ballot.

 

As for Minnesota, HB 676 and SB 1091 of 2015 would repeal this provision.

In the last two decades there have been dozens of attempts to remove the provision, none successful and most never advancing out of committee. Often the proposal was attached to some other provision, such as an effort to move to merit/commission selection or as part of a larger package of changes to the election laws. One interesting iteration that appeared only in 2011 provided that if the incumbent designation was repealed, the state’s mandatory judicial retirement age would be increased (discussed here).

Details below the fold.

Continue reading Bills in Minnesota would end use of incumbent designation on ballots for judges seeking reelection; a look at states that use such designations

Minnesota Legislative Year in Review: judges no longer have to issue opinions within 90 days or lose their pay

Law

HB 1226 Provides murder of a judge is murder in the first degree. Increases penalty for various crimes against judges.

SB 2718 Repeals provision that withholds pay of judges who have decisions pending for longer than 90 days. Provides 90 day deadline requirement to be enforced by chief judge initially rather that via judicial disciplinary board. Provides determinations of compliance to occur on a monthly basis. Provides deadlines and procedures set in statute to be used “unless different procedures for ensuring compliance…are set by the Rules of the Board on Judicial Standards…”

Changing civil jurisdiction thresholds – Part 3

This third 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.

Massachusetts to New Jersey below the fold.
Continue reading Changing civil jurisdiction thresholds – Part 3

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 3

This third 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.

Massachusetts to New Jersey below the fold.

Continue reading Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 3

Minnesota: bills to repeal withholding of judicial pay for decisions longer than 90 days advance

A century old law to require Minnesota judges render their decisions within 90 days or forfeit their pay looks to be on its way towards repeal. The Senate Judiciary Committee on March 28 approved SB 2718, a bill that would eliminate the 90-days-or-no-pay statute that had been around since at least 1905 (prior discussion here). Testimony (2:45:00) was heard that the provision had never been used in 45 years.

SB 2718, as amended, keeps the 90 days for a disposition language, but provides that the judiciary’s Board of Judicial Standards is to adopt rules for compliance. In the event that the Board of Judicial Standards fails to do so, the bill lays out an enforcement mechanism. That mechanism, again if the Board doesn’t adopt an alternative, would be:

  • The Board of Judicial Standards and the chief justices of the judicial districts would review judge’s compliance monthly, not at least annually
  • A first infraction would result in notification to the chief judge of the judicial district
  • A second infraction within 5 years would result in the chief judge and the judge who committed the infraction developing a written plan with the judge to remedy the current non-compliance and avoid future ones. A failure to comply with the plan would be sent to the Board by the chief judge.
  • A third infraction within 5 years of the first would result in the Board taking immediate action without referral to the chief judge (the chief judge would be notified).
  • Nothing in this would preclude the chief judge to take appropriate action under the Code of Judicial Conduct.
  • Should the Board receive a complaint alleging a serious violation of the time standard, the statute would not limit the Board’s ability to act on it.

Meanwhile a similar House bill HB 2687 was approved by the House Judiciary Committee on March 11 and the House Civil Law Committee on March 19.

Merit selection: key votes and hearings next week; could party line votes get items on the ballot?

I’ve been tracking the big changes to adopt or modify merit selection systems in several states. Next week appears to have lined up three key votes/hearings and opens up the question of whether party line votes may decide their fates.

Alaska

Both HJR 33 and SJR 21 alter the state’s Judicial Council, which serves as both the merit selection commission and the judicial performance evaluation commission which issues its recommendations prior to retention elections. They both would expand the existing 7 member Council (3 lawyers picked by bar, 3 nonlawyers picked by governor and confirmed by legislature, 1 chief justice) to 10 members by giving the governor a 6:3 advantage. Where they differ is in the confirmation process: HJR 33 wants all bar-picked lawyers to be subject to legislative confirmation (they aren’t currently); SJR 21 is silent on the issue however a March 31 hearing is expected to amend the bill to include that clause. HJR 33 will then get a hearing on April 2 before the House Finance Committee where it is the only item on the agenda.

Party line votes?- Because HJR 33 and SJR 21 are constitutional amendments they will need a two-thirds vote of each house of the legislature. Republicans have 26 House seats, one shy of the 27 needed, however 4 Democrats caucus with the Republicans. The Republicans have 14 Senate seats, one shy of the two-thirds needed in that chamber, plus 2 Democrats who caucus with them.

Adjournment- April 20 (projected)

Florida

SJR 1188 allows for governors to make “prospective appointments” via the state’s merit selection system for appellate court vacancies that haven’t occurred yet. The issue is key since the only 3 Democrat-appointed justice of the state supreme court all have their terms expire on the same day in January 2019; if reelected and if SJR 1188 is enacted Republican Governor Rick Scott could fill all 3 seats even though he has to leave office that exact same day due to term limits. This has prompted some to call the bill an effort at court packing. So far the bill passed the Senate Judiciary and Rules Committees and is on the Third Reading calendar.

Party line votes?- Because SJR 1188 is a constitutional amendment it will need three-fifths of the membership of each house of the legislature. Republicans have 74 House seats and could get a 75th when a special election occurs in April 8 with 72 votes required for passage. They also have 26 Senate seats, with 24 required for passage.

Adjournment- May 2

Minnesota

HB 1083 and SB 1082 would expand the state’s merit selection for interim vacancies at the trial court level to all vacancies and in the trial and appellate courts. The bills also provide for a judicial performance evaluation system. Both bills are carryovers from 2013 where the House version made it out the Elections Committee and into the Judiciary Committee. On the Senate side the bill has made it past the Judiciary Committee, a subcommittee of the Rules Committee, and most recently (March 21) the State and Local Government Committee.

Party line votes?- Because HB 1083 and SB 1082 are constitutional amendments they will need a majority of the members elected to each house of the legislature. The Minnesota Democratic–Farmer–Labor Party holds majorities in the House (73/134) and the Senate (39/67).

Adjournment- May 19 (projection)

Minnesota: increased penalties for assaulting or killing judges

a proposal to increase penalties for assaulting or killing judges is advancing in the Minnesota legislature. Under SB 712 as approved by the Senate Finance committee on March 26 the death of a judge, prosecuting attorney, or the commissioner of corrections while they are engaged in the performance of their official duties would be murder in the first degree. The bill further enhances the penalty for assaults against judges and prosecuting attorneys, making those crimes on par with assaulting peace officers, correctional employees, and/or probation officers.

Interestingly, the House companion of this bill (HB 1226) does not include extending these penalty enhancements to judges, only prosecutors.

NOTE: A draft version of this story indicating that the death penalty would apply to those who killed judges was accidentally released. Minnesota ended the death penalty almost 100 years ago. This bill would, however, make such killings Murder in the First Degree.