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Judicial Selection - What Is Right for Mississippi

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Judicial Selection - What Is Right for Mississippi Mississippi College Law Review Volume 21 Issue 2 Vol. 21 Iss. 2 Article 5 2002 Judicial Selection - What is Right for Mississippi Lenore L. Prather Follow this and additional works at: https://dc.law.mc.edu/lawreview Part of the Law Commons Custom Citation 21 Miss. C. L. Rev. 199 (2001-2002) This Article is brought to you for free and open access by MC Law Digital Commons. It has been accepted for inclusion in Mississippi College Law Review by an authorized editor of MC Law Digital Commons. For more information, please contact [email protected]. JUDICIAL SELECTION - WHAT IS RIGHT FOR MISSISSIPPI? Lenore L. Prather* I. JUDICIAL SELECTION METHODS Judicial selection in the fifty states is either by election or by appointment. There are many variations of these two methods. Elections may be partisan or nonpartisan. Appointment may be by governor or legislature with or without nominations by a judicial nominating commission. If appointed and in a few cases if elected, a judge may be subject to a retention election which may be opposed or unopposed, partisan or nonpartisan. In some states, a judge is reap- pointed by either the governor or the legislature. Many states have a hybrid sys- tem which allows for appointment of some judges and election of others. A. Initial Terms 1. Legislative Appointment/Election Judicial selection in a few states is by legislative appointment or election. These states are Connecticut, South Carolina, and Virginia. In Connecticut, judges are appointed by the general assembly following nomination by the governor who selects the nominee from a list of candidates submitted by a judicial selection commission.' In South Carolina, judges are elected by a majority vote of the gen- eral assembly2 upon nominations submitted by the Judicial Merit Selection Commission.3 In Virginia, judges are chosen by a majority vote of the general assembly.4 2. Gubernatorial Appointment No state allows a governor to appoint judges without some form of input by oth- ers. In some states, the governor's nomination is subject to the approval of others. California and New Hampshire require that the governor's appointment be con- firmed by a judicial nominating body,' while Maine, New Jersey, Delaware,6 and Maryland7 require that the Senate approve the appointment.' * MUW Interim President and Former Chief Justice of the Mississippi Supreme Court. The author wishes to thank Mary E. Miller, Director of the Mississippi College Law Library, who assisted with the research for this article. 1. CONN. CONST. art. 5, 2. 2. S.C. CODE ANN. 2-19-90 (Supp. 2001). 3. S.C. CODE ANN. 2-19-80 (Supp. 2001). Nominations submitted by the commission are binding on the gen- eral assembly and if the assembly rejects all nominations, the commission must submit additional nominations. 4. VA. CoNST. art. VI, 7. 5. CAL. CONsT. art. 6, 16 (1966); N.H. CONST. pt. 2, art. 46. 6. The Delaware Constitution provides for gubernatorial appointment with the Senate's consent. However, the governor has created a judicial nominating commission. Harry L. Witte, Judicial Selection in the Peoples Democratic Republic of Pennsylvania:Here the People Rule?, 68 TEMP. L. REv. 1079, 1084 n. 25 (1995). 7. As in Delaware, the Maryland governor in 1975 created a nominating commission by executive order which [e]ach subsequent governor has maintained and followed .... The nominating commission submits a list to the governor who selects a person from the list. Dan Friedman, Magnificent FailureRevisited: Modern Maryland ConstitutionalLaw from 1967 to 1998, 58 MD. L. REv. 528, 574 (1999). 8. ME. CONST. art. 5, pt. 1, 8; N.J. CONsT. art. 6, 6, & 1; DEL. CONST. art. IV, 3; MD. CONST. art. IV 5A (1976). 200 MISSISSIPPI COLLEGE LAW RE VIEW [VOL. 21:199 More frequently, however, the governor must select a judge from a list of nom- inations submitted by a judicial nominating body. The states which have this requirement include Alaska,9 Arizona," Colorado," Florida,12 Hawaii,13 Indiana, " Iowa,'" Kansas, 6 Massachusetts, 7 Missouri,18 Nebraska, 9 New Mexico, 0 New York,2' Oklahoma,22 Rhode Island,23 South Dakota,24 Tennessee," Utah,26 Vermont,27 and Wyoming. 8 3. Election The remaining states elect their judges. Elections may be partisan or nonparti- san. Those states which choose judges by partisan election include Alabama,29 Illinois,3° Louisiana,3' North Carolina, 2 Pennsylvania,' Texas,' and West Virginia." States electing their judges on a nonpartisan basis are Arkansas,' 42 43 Georgia,37 Idaho,38 Kentucky,39 Michigan,4 ° Minnesota,4' Mississippi, Montana, Nevada," North Dakota,45 Ohio,46 Oregon, Washington,48 and Wisconsin. 9 9. ALASKA CONST. art. r, 5. 10. ARIz. CONST. art. 6, 37 (1974). It. COLO. CONST. art. VI, 20. 12. FLA. CONST. art. 5, 11 (1972). 13. HAw. CONST. art. VI, 3 (the governor's appointment must receive consent of the senate). 14. IND. CONST. art. 7, 10. 15. IOWA CONST. art. 5, 15 (1962). 16. KAN. CONST. art. 3, 5. 17. MASS. CONST. pt. 2, cl. 2, 1, art. 9. 18. Mo. CONST. art. 5, 25(a). 19. NEB. CoNsT. art. V, 21. 20. N.M. CONST. art. VI, 35. 21. N.Y. CONST. art. 6,2 (1961). 22. OKLA. CONST. art. 7-B, 4 (1967). 23. R.I. CONsT. art. 10, 4 (the governor's nominationmust receive consentof the senate andthe house of representatives). 24. S.D. CONST. art. V 7. 25. TENN. CODE ANN. 17-4-112 (1994). 26. UTAH CONST. art. VIII, 8. 27. VT. CoNsT. ch. II, 32. 28. Wyo. CONST. art. 5, 4. 29. ALA. CODE 17-2-2 (1995). 30. ILL. CONsT. art. 6, 12. 31. LA. CONsT. art. 5, 22. 32. N.C. CoNsT. art. IV, 16. 33. PA. CONST. art. 5, 13. 34. TEx. CONsT. art. 5, 2. 35. W VA. CODE ANN. 3-1-16 (Michie 1999). 36. ARK. CONST. amend. 80, 18 (2000). 37. GA. CONST. art. 6,7, & 1. 38. IDAHO CoNsT. art. VI, 7 (1934). 39. Ky. CONST. 117. 40. MIcH. CONsT. art. 6, 2. 41. MINN. STAT. ANN. 204B.06(6) (West Supp. 2002). 42. Miss. CODE ANN. 23-15-976 (2001). 43. MONT. CODE ANN. 13-14-211 (2001). 44. NEV. CoNST. art. 6, 3; NEV. REv. STAT. ANN. 293.195 (Michie 1997). 45. ND. CENT. CODE 16.1-11-08 (Supp. 2001). 46. Omo CoNsT. art. IV, 6; OHIo REv. CODE ANN. 3505.04 (West 1995); Oiuo REV. CODE ANN. 3513.13 (West 1995). Ohio judges run in a partisan primary election and a nonpartisan general election. 47. OR.REv. STAT. 254.005 (2001). 48. WASH. REv. CODE ANN. 29.21.070 (1993). 49. Wis. CoNsT. art. 7, 9. 2002] JUDICIAL SELECTION - WHAT IS RIGHT FOR MISSISSIPPI? 201 B. Subsequent Terms As with initial judicial selection, a variety of methods exist for selection of judges for subsequent terms. The most prevalent method is a nonpartisan reten- tion election in which voters decide if the judge should be retained in office. Such an election is a feature of merit selection which was first proposed by the American Judicature Society."0 States which have such elections include Alaska, 1 Arizona, 2 California,' Colorado,' Florida," Illinois, 6 Indiana, 7 Iowa,"6 Kansas, 9 Maryland," Missouri, 61 Nebraska, 2 Oklahoma,63 Perinsylvania, South Dakota, 5 Utah,66 and Wyoming. 7 Some judges are reappointed to subsequent terms in the same manner in which they are appointed initially. Those states where judges are reappointed include Connecticut, 68 Delaware, 6 Hawaii," Maine,71 New York,72 and Virginia.73 In South Carolina and Vermont, judges are retained by vote of the general assembly.74 In New Hampshire, Massachusetts and Rhode Island, judges hold office during good behavior.7 In New Jersey, judges hold their offices during good behavior upon reappointment after their initial terms.76 A number of states have a system which is unlike any other. In Tennessee, the candidate for office of judge runs in an uncontested nonpartisan retention election unless the judicial evaluation commission makes a recommendation against reten- tion of an incumbent appellate judge but the judge nevertheless files or has filed the declaration of candidacy, in which case the judge must run in a contested election.' Montana's system is similar in that the incumbent runs in a retention election if unopposed.78 In New Mexico, the appointed judge must first run in a partisan elec- tion after which he is eligible to run in nonpartisan retention elections.79 50. See Albert M. Kales, Methods of Selecting and RetiringJudges, 12 J. AM. JUDICATURE Soc'y 133 (1928). 51. ALASKA CONST. art. IV, 6. 52. ARiz. CONST. art. 6, 38 (1974). 53. CAL. CONST. art. 6, 16 (1966). 54. COLO. CONST. art. VI, 25 (1966). 55. FLA. CONST. art. 5, 10 (1972); FLA. STAT. ANN. 105.041 (West Supp. 2002). 56. ILL. CONST. art. 6, 12. 57. IND. CONST. art. 7, 11; IND. CODE ANN. 3-11-2-13 (Michie Supp. 2001). 58. IowA CONST. art. 5, 17 (1962); IOWA CODE ANN. 46.21 (West Supp. 2001). 59. KAN. CONST. art. 3, 5. 60. MD. CONST. art. IV, 5A (1976). 61. Mo. CONST. art. 5, 25(c)(1). 62. NEB. CONST. art. V 21. 63. OKLA. CONST. art. 7-B, 2 (1967). 64. PA. CONST. art. 5, 15. 65. S.D. CONsT. art. 5, 7. 66. UTAH CONST. art. VIII, 9. 67. WYO. CONST. art. 5, 4. 68. CONN. GEN. STAT. ANN. 51-44a (West Supp. 2001). 69. DEL. CONST. art. IV, 3. 70. HAW. CONST. art. VI, 3 (1968) (term of office ofjustice or judge is renewed by commission). 71. ME. CONST.
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