Judicial ballot measures, 2014

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In addition to electing judges this year, voters in seven states had the responsibility of weighing in on ballot measures affecting the operations of state judiciaries. Below is a brief overview of these measures. All of the information below has been compiled with help from Ballotpedia. For more details on ballot measures affecting the judiciary in 2014, please see Ballotpedia's state judiciary on the ballot page.

Highlights

• Alabama passed a law banning its judges from considering foreign laws when ruling on cases.
• Florida voters defeated a law which would have allowed the governor to appoint judges before their terms expire.
• Hawaii mandated the disclosure of applicants for judicial vacancies.
• Hawaii and Louisiana kept their mandatory retirement ages for judges.
• New Mexico approved the creation of an intermediate appellate court.
• New Mexico voters gave the legislature authority to set the filing deadline for retention elections.
• Tennessee voters gave the Tennessee Legislature the authority to confirm judicial nominees.

 Alabama

Foreign laws in court - SB 4

Alabama voters passed the Alabama Foreign Laws in Court Amendment, SB4, which prohibits judges from considering Islamic Sharia law in judicial decisions. State Senator Gerald Allen proposed the Alabama "Sharia Law Amendment" (2012) in the 2011 legislative session, but it did not make the ballot in 2012.

Oklahoma law barred from taking effect

Oklahoma passed a similar measure in 2010, the Oklahoma "Sharia Law Amendment", State Question 755. That same month, Judge Vicki Miles-LaGrange of the Western District of Oklahoma ruled that the amendment was unconstitutional and issued a temporary injunction to bar the law from taking effect. That ruling was later reinforced by the Tenth Circuit, when a three-judge panel agreed with Judge Miles-LaGrange's ruling in January 2012. The appellate court made the injunction permanent.

The Oklahoma House of Representatives approved a similar measure in 2012, but the statute died in the Senate.

Other attempts at Sharia law amendments

Missouri, Texas, and Wyoming have attempted to create statewide ballot measures banning the use of Sharia Law, but none of those attempts received the necessary votes in the legislatures to make the ballot.

 Florida

Gubernatorial appointments for judicial vacancies

The Florida Prospective Judicial Vacancies, Amendment 3 ballot measure would have altered the method of judicial selection in Florida. This measure was narrowly defeated in the November 4 general election. Instead of waiting for a judge or justice's term to end before a successor is named, the governor of Florida would have been permitted to appoint a successor when one of three conditions is met:

• a judge approaches mandatory retirement,
• a sitting judge does not qualify for a retention election, or
• a judge loses a retention election.

Three justices of the Florida Supreme Court had terms that were set to expire on January 8, 2019, due to the mandatory retirement age in Florida: Fred Lewis, Barbara Pariente, and Peggy Quince. This bill was approved in the Florida House of Representatives and Florida Senate in April 2014 along party lines, with Republicans favoring the measure.

 Hawaii

Hawaii had two judiciary ballot measures in the November 2014 election, the Hawaii Disclosure of Judicial Nominees' Names, HB 420 and Hawaii Mandatory Retirement Age for Justices and Judges, SB 886. Both were legislatively referred constitutional amendments.

Voters approved the measure to disclose the names of applicants for judicial vacancies but defeated the measure to increase the mandatory retirement age for judges.

Disclosure of judicial applicants

The Hawaii Disclosure of Judicial Nominees' Names, HB 420, mandates by law the existing practice of the Hawaii Judicial Selection Commission of releasing names of judicial applicants.

Judicial selection in Hawaii

As of 2014, Judicial selection in Hawaii occurred through the assisted appointment method. Nominees were recommended by the Hawaii Judicial Selection Commission for all levels of the courts; for the Hawaii Supreme Court and Hawaii Intermediate Court of Appeals, the governor nominated justices and judges, for all other courts, the chief justice of does. All nominees were confirmed by the Hawaii Senate.

Controversy over naming applicants

In 2011, when Gov. Neil Abercrombie nominated Sabrina S. McKenna to the state high court, the Honolulu Star-Advertiser submitted an open records request to the state to release the names of the other applicants for the position. Abercrombie refused, citing a 1993 Hawaii Supreme Court ruling which gave the governor and chief justice "sole discretion" over releasing the names of applicants for judicial positions.

The newspaper sued the governor, claiming that he was in violation of the Hawaii Uniform Information Practices Act. In September 2011, the governor filed a document stating that the Hawaii Constitution, previous court cases and the rules of the Judicial Selection Commission supported his decision to not release the applicants' names. Furthermore, Abercrombie said he was concerned that making those names public would deter qualified candidates from applying to positions in the future.

In November 2011, Judge Karl Sakamoto of the O`ahu First Circuit Court ruled in favor of the Star-Advertiser, finding that sufficient evidence did not exist to circumvent open records concerns. In response, the judicial selection commission said that henceforth, it would release the names of judicial applicants.

To read more about Judgepedia's coverage of that event, see the articles listed below:

• Gov. Abercrombie reluctant to release names of candidates, 2/4/2011
• Hawaii newspaper sues governor over judicial nominees, 8/24/2011
• UPDATE:State responds to suit filed by newspaper, 8/24/2011
• UPDATE: Gov. Abercrombie must reveal judicial candidates, 11/15/2011
• Hawaii Judicial Selection Commission decides to release names, 11/30/2011

Mandatory retirement age

In 2014 Hawaii voters defeated an effort to increase the mandatory retirement age for all Hawaii judges to eighty from the current age of seventy. The Hawaii Mandatory Retirement Age for Justices and Judges, SB 886 (2014) received almost unanimous support in the Hawaii House of Representatives and Hawaii Senate, and had the support of Gov. Abercrombie.

Similar bills defeated in New York and Ohio

Voters in New York defeated a similar measure last year when Proposal 6 received 42 percent of the vote.

In 2011, Ohio voters also defeated a measure to raise the retirement age for judges. Like Hawaii, New York and Louisiana, the retirement age for judges in Ohio was 70. The Ohio Judicial Office Age Amendment, Issue 1, would have raised that age to seventy-six, but received 38 percent of the vote and failed.

Court challenge in Pennsylvania

Judges in Pennsylvania took a different approach by challenging the constitutionality of the state's mandatory retirement age, claiming it was discriminatory under the equal protection and due process clauses of the Fourteenth Amendment. That challenge was dismissed, first by Judge John E. Jones, III of the Middle District of Pennsylvania, then by a three-judge panel of the Third Circuit. Both dismissals found that the arguments presented during the challenge to the law were "unconvincing."

 Louisiana

Mandatory retirement

Louisiana voters decided to keep the state's mandatory retirement age for judges in 2014. As of 2014, Louisiana judges needed to retire when the term during which they turn 70 expired. The Louisiana Mandatory Judicial Retirement Age Amendment was designed to do away with that constitutional requirement. The measure was strongly supported in both chambers of the Louisiana legislature.

In 1995, Louisiana voters defeated the Increase Mandatory Age of Retirement for Judges from 70 to 75 Amendment, by a margin of 62 percent to 38 percent.

For more recent examples of attempted changes to mandatory retirement laws, see above.

 Nevada

Creation of an intermediate appellate court

In 2014, Nevada was one of ten states which did not have an intermediate appellate court. The other nine were: Delaware, Maine, Montana, New Hampshire, Rhode Island, South Dakota, Vermont, West Virginia and Wyoming. The Nevada Creation of a State Intermediate Appellate Court, SJR 14, gave citizens the opportunity to create an intermediate appellate court. That measure passed.

The same question was posed to voters in 2010, with Question 2. At that time, citizens voted 53.18 percent to 46.82 percent not to approve the creation of an intermediate appellate court.

Nevada voted on the creation of an appellate court three times prior to 2014, in 1980, 1992 and 2010. In 2007, the Nevada Supreme Court submitted a brief to the state legislature advocating for the creation of an intermediate appellate court. That report can be accessed here: Nevada Judiciary, "Report to the 74th Regular Session of the Nevada State Legislature, 2007, regarding the creation of the Nevada Court of Appeals".

Supreme court caseloads

For 2012, the most recent year that data was available as of 2014, the Nevada Supreme Court had the third highest number of case filings in the nation, with 2,500. This followed only the Texas Court of Criminal Appeals and Florida Supreme Court. In 2011, Nevada's high court received the sixth most filings in the country, and the year before, the eighth.

 New Mexico

Filing deadlines for retention elections

New Mexico's judicial ballot measure made a procedural change to the filing deadline for retention elections. The New Mexico Candidacy Declarations in Judicial Retention Elections Amendment allowed the legislature to set the filing deadline for retention elections. As of 2014, that deadline was the same the primary filing deadline, per Article VI, Section 34 of the New Mexico Constitution. This measure passed.

The New Mexico House of Representatives and New Mexico Senate both unanimously approved this measure, passing it in order to get it on the ballot.

It was not uncommon for states with judicial retention elections in the general election to have a different filing deadline for incumbent judges. Below is a table of the six states which had retention elections at all levels of the court system as of 2014. According to the data from Ballotpedia, half of those states had the same filing deadlines, while half had later deadlines for judicial candidates.

State	2014 filing - Legislative candidates	2014 filing - Judicial candidates
Alaska	June 2	August 1
Colorado	March 31	August 4
Iowa	March 14	July 23
Nebraska	February 18/March 3	February 18
Utah	March 20	March 20
Wyoming	May 30	May 30

 Tennessee

"This Is Tennessee" ad supporting Amendment 2 (2014)

Altering judicial selection

In Tennessee, Amendment 2 gave the legislature control in confirming the nominations of justices for the Tennessee Supreme Court and judges of the Tennessee Court of Appeals. The amendment also officially eliminated the Tennessee Judicial Nominating Commission. Prominent Republican officials, including current Governor Bill Haslam, Lt. Governor Ron Ramsey and Senator Lamar Alexander supported the amendment. This measure was approved in November 2014.

Judicial selection in Tennessee

Judicial selection in Tennessee for appellate judges followed the Tennessee Plan, through which the governor appoints a judge to fill a court vacancy. Nominees for appointment were recommended by the Tennessee Judicial Nominating Commission. However, the commission expired in 2013, following the General Assembly's inaction in reviewing the commission.

By avoiding a review of the commission, as mandated by state law, the legislature allowed the governor to rely on a 2009 statute which allowed the governor to appoint any qualified person to a court.

Amendment 2 essentially required the approval of the legislature, rather than that of the nominating commission, for judicial appointments.

Trifeca Plus

According to Ballotpedia, Tennessee was represented by a Republican trifecta; the governorship, state senate, and state house were all controlled by Republicans. A "Trifeca Plus" is when a state is a trifecta and also has a supreme court controlled by the same party.

Though the state's supreme court retentions were nonpartisan, three of the state's current justices were appointed to the court by a Democratic governor, and the other two were appointed by Republican governors.

Controversy over measure

Prior to the August election, Senate Speaker Ron Ramsey led a public charge to unseat the three supreme court justices standing for retention in 2014, Gary R. Wade, Cornelia Clark and Sharon Lee. These justices were appointed by a Democrat, Governor Phil Bredesen. All three justices were retained on August 7, 2104.

For more on the link between Amendment 2 and the Tennessee justice retention campaigns, see Tennessee Supreme Court elections, 2014.

See also

• Judicial elections, 2014