BRIEFS
12
VOL. 100 NO. 1
from THE NATIONAL CENTER FOR STATE COURTS
TRENDS IN JUDICIAL SELECTION METHODS
States seeing lots of legislative activity, but proposals to change selection methods vary widely
INTEREST IN CHANGING OR ALTERING THE SELECTION OF JUDGES IN THE STATES HAS WAXED AND
WANED FROM YEAR TO YEAR FOR DECADES. What
makes the last five years remarkable, however, is
the extent to which mere interest and curiosity in
this area has moved into legislative activity and
enactments across such a large number of states.
Also notable: There is no particular direction or
wave of change. Different state legislatures are both
adopting and repealing the exact same selection
methods or financing systems — in some instances
within days of each other.
bar’s board of governors, and the chief justice. In
with House and Senate confirmation for the
allow the governor to name anywhere from six to
for lower courts. Until 2007 the list of three to
2014 and 2015 proposals have been advanced to
ten nonattorneys and to require that the attorney
members be subject to legislative confirmation.
Another point of contention in this area has
been the lack of seats for the legislature. Several
proposals, such as one debated in South Dakota in
2013, would add seats for legislative appointments
or members of the legislature. Still other states have
considered transferring the seats currently dedi-
cated to the bars/attorneys to legislative leaders.
2) Commission submits binding list of a few
MODIFY MERIT-COMMISSION SYSTEMS
names: After a commission is formed it must
have a commission-based system for the selection
governor. State governors have pressed legisla-
Most activity by far has occurred in those states that
of judges. Commonly called merit selection, these
systems have four particular elements, all of which
have been focal points of legislative activity.
1) Judicial Nomination Commissions: Typically
these commissions are made up of an equal
number of nonattorneys appointed by the governor
and attorneys selected by members of the bar. The
chair is typically a judge. The selection of attorneys
to serve on a commission, either via elections of the
lawyers in a given area or designation by the bar’s
board of governors, has been the most contentious
issue. Legislative activity has focused on either
removing the power to select these members,
making such selections subject to legislative confirmation, or increasing the number of nonattorney
members appointed by the governor. In Alaska, for
example, the state judicial nominating commission
is made up of three nonattorneys selected by
the governor and confirmed by the legislature in
joint session, three attorneys selected by the state
Supreme Court and Senate-only confirmation
five names submitted by the judicial nominating
commission was valid only for the current vacancy
on a court; a new vacancy would require a new
round of applications and a new list. Under the
modified system, however, anyone whose name
appeared on a list in the previous five years was
deemed eligible for appointment. As a result, a
former state senate president who was nominated
in August 2010 to a seat on the Superior Court was
appointed in May 2013.
3) Governor appoints without legislative
submit a list of typically three to five names to the
confirmation: As noted, state legislatures are more
tures for more discretion in three ways: to expand
sion-based judicial selection. Several proposals
the number of names submitted on the list; to
provide governors the power to ask for a second or
even third list of names; and to end the numerical
restriction and send all “qualified” candidates —
or all those who meet the minimum eligibility
inclined than ever to want a role in commis-
would include confirmation by the upper chamber
of the legislature or in some cases a two-chamber
confirmation processes.
4) Appointed judge retained by a simple major-
ity vote in retention elections: With the exception of
requirements (age, residency, etc.) — to the gover-
Illinois (60 percent) and New Mexico (57 percent),
ment by the legislature would have expanded
required to obtain a simple majority of “yes” votes
nor. In Arizona, a 2011 constitutional amend-
the governor’s power to name members of the
commissions as well as increased the required
number of names from at least three to at least
judges who must face retention elections are
to remain in office. Several plans would set this
threshold anywhere from 60 to 67 percent.
six (trial) or eight (appellate). When that proposal
END MERIT-COMMISSION SYSTEMS
legislature passed a statutory change in 2013 to
keeping the existing systems, two states have
was rejected by voters in November 2012, the
require that at least five names be submitted for
each judicial vacancy. That law was struck down by
the Arizona Supreme Court.
Another notable example is in Rhode Island,
which adopted a merit selection system in 1994
While the above proposals are all predicated on
ended their systems outright with several others
considering similar efforts. The first such elimination
was for Kansas’ Court of Appeals in 2013. Because
the court was created by statute and not the state’s
constitution, a change to the method of selection
JUDICATURE
13
LEGISLATIVE ACTIVITY IN THE LAST 5 YEARS
IMPACTING METHOD OF SELECTION FOR
SOME OR ALL COURTS IN A STATE
“
CHANGE TO
NONPARTISAN RACES
MARYLAND
MISSOURI
WASHINGTON
WEST VIRGINIA*
CHANGE TO PARTISAN
RACES
ARIZONA
GEORGIA
KANSAS
MONTANA
NORTH CAROLINA*
CHANGE JUDICIAL
NOMINATING
COMMISSION
COMPOSITION
ALASKA
ARIZONA
FLORIDA
INDIANA
KANSAS
MISSOURI
OKLAHOMA
SOUTH DAKOTA
TENNESSEE
INCREASE NUMBER OF
NAMES COMMISSION
SUBMITS
ARIZONA**
MISSOURI
RHODE ISLAND*
SOUTH CAROLINA
TENNESSEE
LEGISLATIVE
CONFIRMATION OF
COMMISSIONERS OR
NOMINEES
ALASKA
ARIZONA
INDIANA
KANSAS*
MISSOURI
OKLAHOMA
TENNESSEE*
INCREASE RETENTION
ELECTION THRESHOLD
ARIZONA
FLORIDA
INDIANA
KANSAS
OKLAHOMA
TENNESSEE
trate, and municipal courts.
END COMMISSION
SYSTEM OUTRIGHT
KANSAS*
TENNESSEE*
not clear what would occur if one chamber approved
enacted laws that moved in opposite directions on
ADOPT COMMISSION
SYSTEM
MINNESOTA
PENNSYLVANIA
As with the Kansas change there is a provision for
elections for its courts. Starting in 2016 those races
will be nonpartisan. North Carolina, which already
ADOPT PUBLIC FINANCING
KENTUCKY
WEST VIRGINIA*
have partisan races for the Court of Appeals. While
REPEAL PUBLIC
FINANCING
NORTH CAROLINA*
WISCONSIN*
RECUSAL FOR
CONTRIBUTIONS
ALABAMA*
MONTANA
WISCONSIN
DIFFERENT STATE LEGISLATURES ARE BOTH
ADOPTING AND REPEALING THE EXACT SAME
SELECTION METHODS OR FINANCING SYSTEMS —
IN SOME INSTANCES WITHIN DAYS OF EACH OTHER.
required only a simple majority of the legislature and
states are simultaneously considering adopting these
put in place was quasi-federal: The governor makes an
ered such a move for all its judges. After 20 years of
the signature of the governor. The replacement system
appointment subject to senate confirmation. Unlike
in the federal system, however, senate delays cannot
thwart an appointment. If the senate fails to vote to
confirm or reject the nominee within a set number
of days the person is deemed confirmed by default.
Judges so appointed must face yes/no retention
elections to remain in office. Efforts have been made
to pass a constitutional amendment to make the same
system apply to the Kansas Supreme Court.
The second change occurred a year later in
Tennessee. For decades the state had made use of
a statute-based commission system for all three
appellate courts. Under a constitutional amendment
approved in 2014, that system was changed to
one in which the governor would select a nominee
who “shall be confirmed by the Legislature.” This
language has, however, proved contentious as the
House and Senate were unable to adopt in 2015 an
enabling statute. At issue is whether the confirma-
tion described would be by the chambers separately
(majority of the House plus a majority of the Senate)
or jointly (majority of all legislators). Moreover, it is
a nominee but the other chamber voted to reject.
default confirmation should the legislature fail to
confirm or reject within a set time period and a provision that judges, once confirmed, would be subject
to yes/no retention elections.
ADOPT MERIT-COMMISSION SYSTEMS
With all the interest in amending or ending existing
merit-commission systems, it is notable that many
systems. Minnesota’s legislature in 2013-14 considconsideration, a plan to enact a merit-commission
system for Pennsylvania’s appellate courts was finally
approved in committee in 2015. The plan includes a
nominating commission dominated by the legislature
(eight out of 13 seats would go to legislative leaders,
the other five to the governor), senate confirmation or
default confirmation if the senate fails to act, and yes/
no retention elections.
PARTISAN/NONPARTISAN ELECTIONS
State legislatures have in the last several years
been divided on the question of using nonpartisan
elections for judges. A Georgia Senate committee
in 2012 approved a plan that would have required
that the existing nonpartisan elections of judges
be converted to partisan races unless voters in the
affected county specifically voted to keep the nonpartisan system in place. In the 2014 session, however,
a House committee approved a bill to convert from
partisan to nonpartisan elections for probate, magisNorth Carolina and West Virginia in 2015
this score. West Virginia had made use of partisan
had nonpartisan elections for its judges, will now
there will be no party primaries under the system,
candidates will be able to self-identify on the ballot
with the party of their choosing. Moreover, the
See TRENDS next page 4
* INDICATES ENACTMENT OR APPROVAL BY VOTERS
** INDICATES ENACTED BUT STRUCK DOWN BY COURTS
BRIEFS
14
VOL. 100 NO. 1
JUDICIAL HONORS
STEVEN LEIFMAN, 11th Judicial
Circuit of Florida judge, received the
William H.
criminal justice systems’ treatment of
defendants with mental health issues.
Rehnquist
The Dwight D. Opperman Foundation
Judicial
judge on
Award for
Excellence
at a dinner
at the U.S.
Supreme Court. The award is given by
the National Center for State Courts
to judges who exemplify judicial
excellence, integrity, fairness, and
professional ethics. Judge Leifman
has helped to reform local and state
presented EDWARD LEAVY, senior
Building. The Devitt Award is the
Maryland Court of Appeals Judge
committee of federal judges chaired
speaker at a luncheon celebrating the
federal judiciary’s highest honor. A
by Justice Clarence Thomas selected
Judge Leavy for the award.
the U.S.
RUDOLPH A. SACCO, a retired
Appeals for
court judge, received the Berkshire
Court of
the Ninth
Circuit,
with the
2015 Edward J. Devitt Distinguished
Service to Justice Award at a
ceremony at the U.S. Supreme Court
Massachusetts probate and family
SHIRLEY M. WATTS was the keynote
30th anniversary of the Kappa Theta
Omega Chapter of Alpha Kappa Alpha
Sorority. Judge Watts was the first
African-American woman appointed to
serve on Maryland’s highest court.
Medical Cancer Center’s Francis X.
PHILLIP I. ADLER, a former Superior
Award honors individuals who contrib-
was named a Sagamore of the Wabach
Doyle Award. The Frances X. Doyle
ute to the health and well-being of the
Berkshire area.
Court judge in Vigo County, Indiana,
by Gov. Mike Pence. The award honors
citizens who have contributed to
Indiana’s “Hoosier” heritage.
(TRENDS continued from page 13)
nonpartisan races for the Supreme Court were changed to require incumbent
judges to stand for yes/no retention elections. A lawsuit has been filed challenging
whether such elections are permitted under the North Carolina constitution.
This move away from nonpartisan elections was not limited to only North
Carolina. A plan to convert Montana’s nonpartisan races to partisan ones was
approved by a House committee in 2011 before being rejected by the full House.
In addition a Kansas House committee in 2015 approved a constitutional amendment to end the merit-commission system for the Supreme Court and replace it
with partisan elections.
FINANCING OF JUDICIAL RACES AND RECUSAL
Related to the question of how judges are elected is the question of how those
races are funded and the impact it has on the courts. One area of legislative focus
has been on public financing of appellate judicial races. On the one hand several
states have moved to enact such systems. West Virginia created a pilot program
in 2010 and made it permanent in 2013. Kentucky’s House approved a similar
system for its Supreme Court in 2013. On the other hand, states that had such
systems have been repealing them. Wisconsin’s Supreme Court public financing
program, enacted in 2009, was repealed in 2011. North Carolina’s program,
enacted in 2004, covered both its appellate courts until it was repealed in 2013.
Another effort to address the impact of campaign financing has been the use of
recusal rules and policies that set contribution amounts that would require recusal.
While some of these have been adopted by the courts themselves state legislatures
have also sought to impose such requirements. In 2010 California’s legislature
enacted a requirement that a trial judge is disqualified if they received $1,500 in
campaign contributions from a party or attorney in the prior six years; a $3,000
limit was later established for appellate judges by court rule. Alabama’s legislature
in 2014 opted for a sliding scale: A contribution equal to 10 percent (appellate
courts), 15 percent (circuit court), or 25 percent (district court) of all contributions to
a judge’s campaign creates a “rebuttable presumption” in favor of recusal. Proposals
in other states vary as to amount ($35 considered in Montana; $1,000 proposed
in Washington and Wisconsin) and whether the requirement would cover only the
court of last resort or extend to the appellate or trial courts as well.
— WILLIAM E. RAFTERY is the author of Gavel to Gavel, a newsletter of the
National Center for State Courts that tracks legislative activity that affects the courts
JUDICATURE
15
MILESTONES
These judges (active status) are celebrating milestone anniversaries this spring
of their commission dates to the federal courts.
30 years
DANNY JULIAN BOGGS
U.S. Court of Appeals for the Sixth Circuit
REBECCA PERSICK, a Circuit Court
Hybrid Courts in Towaliga County.
received the Wisconsin Child Support
years. Under Judge Fears’ guidance,
judge in Sheboygan County, Wisconsin,
Enforcement Association Judicial
Award at a banquet in Elkhart Lake. The
award recognizes a judge, family court
commissioner, or legislator who has
Judge Fears has led the courts for 15
the courts have evolved to address
substance abuse, veterans’ needs, and
mental health needs.
improved the child support program.
BRUCE M. BALTER, a judge with the
The National Asian Pacific Bar
District, received the Turkish Cultural
Association selected SABRINA S.
MCKENNA, a Hawaii State Supreme
Court justice, and AMUL THAPAR, a
U.S. District
Court judge
for the Eastern
New York Supreme Court 2nd Judicial
Center of Brooklyn’s Enforcement
Appreciation Award. The award recog-
nized Judge Balter’s service to New York
and his championing of the Turkish
Cultural Center’s ideals.
District of
FRANCES C. GULL, a Superior Court
two of five
the 2015 G. Thomas Munsterman
Kentucky, as
members
of the bar
to receive
its highest
honor, the
Daniel K.
Inouye Trailblazer Award. The award
recognizes the success, commitment,
and leadership of lawyers who have
paved the way for the advancement of
other Asian Pacific American attorneys.
WILLIAM A. FEARS, a Georgia Circuit
Superior Court judge, was honored
by friends, family, and state officials
with an award for his dedication
and service to the Accountability
judge in Allen County, Indiana, received
Award for Jury
Innovation
from the
National
Center for
State Courts.
The award recognized Judge Gull’s
efforts to improve jury management
in Allen County. Judge Gull helped to
implement mjuror, a software system
that allows jurors to perform jury-related
tasks electronically. She also served on
the Jury Management Committee of the
Indiana Judicial Conference.
SIDNEY ALLEN FITZWATER
25 years
MARILYN B. HUFF
U.S. District Court,
Southern District of California
U.S. District Court,
Northern District of Texas
45 YEARS AND COUNTING
A LEGEND KEEPS ON
The Honorable GERALD BARD
TJOFLAT of the U.S. Court of Appeals for
the 11th Circuit celebrated an incredible 45 years on the federal bench in
November. He was appointed to the U.S.
District Court for the Middle District of
Florida in 1970 by President Nixon, and
now at age 86 is one of the longest-serving active federal judges in the country.
Tjoflat served in the U.S. Army from
1953 to 1955 as a counterintelligence
agent before earning his degree from Duke Law School in 1957. Following law
school, he worked in general private practice for about a decade in Jacksonville,
Fla., and later served as a judge on the Fourth Judicial Circuit of Florida in
Jacksonville from 1968 to 1970.
Tjoflat told The National Law Journal that his entry into the judiciary was
rather “freakish.” A Republican in a region dominated by Democrats — “you
could count ‘em on your fingers and toes, really” — a court appointment seemed
a nonstarter. When he got the call from Florida’s first Republican governor since
Reconstruction, he assumed he wouldn’t survive past an election. “I had told my
partners, ‘I’ll see you in January,’” he said. But no one registered to run against
him. Not long after, he was nominated by Nixon to a new seat in the Middle
District of Florida and confirmed by the Senate a week later.
Tjoflat served five years on the District Court before President Ford nomi-
nated him to the Fifth Circuit in November 1975 at the age of 45. He was later
reassigned to the then-newly created 11th Circuit in October 1981. He served
as chief judge from 1989 to 1996. Twenty years later, he’s still carrying a full
caseload. When asked by The National Law Journal when he thought he might
step back, Tjoflat said simply: “We’ll wait and see.”
— ALEXIS REYNOLDS is a 2016 J.D. candidate at Duke Law School
and online editor for Duke Law Journal