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Samuel Postell

Samuel Postell is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Fabiana Pierre-Louis confirmed to state Supreme Court by New Jersey Senate

On August 26, 2020, Justice Walter Timpone announced that he planned to retire early from the New Jersey Supreme Court if supreme court nominee Fabiana Pierre-Louis was confirmed by the Senate before September. On August 27, 2020, the New Jersey Senate voted 39-0 to approve Pierre-Louis.

Pierre-Louis is Governor Phil Murphy’s (D) first nominee to the supreme court. Because Justice Timpone will reach the age of 70 this year, he must retire due to a provision in the state’s constitution.

In the case of a vacancy on the court, the governor is tasked with selecting a nominee who is then confirmed by the Senate Judiciary Committee, followed by a confirmation by the entire Senate.

The state of New Jersey mandates partisan balance on the court. Justice Timpone was nominated as a Democrat, so Gov. Murphy had to nominate a Democrat to the court according to state law. Justice Timpone was appointed by Gov. Chris Christie (R).

Pierre-Louis is a first generation American and her parents are Haitian immigrants. Gov. Murphy stated, “I am honored to have put her name forward, and to see someone with a different set of life experiences and perspectives on our Supreme Court, a judicial body where New Jerseyans from all walks of life turn for justice.”

After Gov. Murphy announced her nomination, Pierre-Louis stated, “Many years ago, my parents came to the United States from Haiti with not much more than the clothes on their backs and the American dream in their hearts… I think they have achieved that dream beyond measure because my life is certainly not representative of the traditional trajectory of someone who would one day be nominated to the Supreme Court of New Jersey.”

Pierre-Louis was a prosecutor in the U.S. Attorney’s Office for the District of New Jersey. She was also a law clerk for state Supreme Court Justice John Wallace Jr.

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New Mexico Supreme Court rules Governor Lujan Grisham may fine businesses for violating public health orders

On August 4, 2020, the New Mexico Supreme Court unanimously ruled that the governor may legally fine businesses that violate the New Mexico Public Health Emergency Response Act.

The case came to the supreme court after several businesses filed suit in the 9th Judicial District in Curry County. The state Republican Party helped organize the complaint against the governor. The plaintiffs claimed that the power of the governor to fine businesses that violated the Emergency Response Act was not inherent to the act itself. Chief Justice Michael Vigil, writing the court’s opinion, said, “The Legislature has clearly given the governor that authority.”

In response to the supreme court’s decision, Republican Party Chairman Steve Pearce said, “We are deeply disappointed in today’s Supreme Court decision… This ruling demonstrates the need to seek change at the polls this November by electing conservative judicial candidates who will help protect our freedoms and basic rights. What happens at the polls impacts what happens in our lives in New Mexico, and we must make a stand this fall on Election Day.”

Gov. Michelle Lujan Grisham (D) tweeted in response to the court’s decision: “The state shouldn’t have to fine anybody…Doing the right thing in a crisis shouldn’t be something we have to argue about. But anyone endangering the lives of New Mexicans will face the consequences.”

The state supreme court may hear a similar case in the future. In July, the New Mexico Restaurant Association filed a lawsuit in a state District Court challenging the state’s authority to order establishments to close indoor dining again after briefly allowing the businesses to reopen at 50% capacity.

As of August 11, Ballotpedia has tracked 681 lawsuits filed in response to policies implemented to address the COVID-19 outbreak in the United States. Of these 681 suits, 189 have been filed in state-level courts (and 34 of those have been taken up by state supreme courts). The remaining lawsuits have been filed in the federal judiciary.

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United States Supreme Court to decide Carney v. Adams in October 2020

On July 13, 2020, the United States Supreme Court released its calendar for the October 2020 session.
The first case that the Supreme Court will hear is Carney v. Adams, a case from Delaware that challenges Article IV, Section 3 of the Delaware Constitution which mandates partisan balance on the state supreme court.
Article IV, Section 3 of the constitution reads, “three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.” Delaware is the only state in the country to contain such a provision in its state constitution. Some other states have informal and formal appointment rules which mandate partisan balance on the state supreme court.
Carney v. Adams comes before the Supreme Court because James R. Adams, a resident of Delaware and member of the state Bar Association, sought a position on the state supreme court. He decided not to apply for the position because, according to the partisan balance provision in the state constitution, the governor must appoint a Republican and Adams is neither a registered Republican nor Democrat. Adams then filed a lawsuit against the governor of Delaware, challenging the provision in the state constitution which mandates that justices must be representative of the major parties in the state. Adams argued that Article IV Section 3 violates the first amendment.
Governor John Carney (D) argued that Adams did not have the legal right to file a lawsuit. When Adams filed suit, the district court ruled that he had Article 3 standing on some of the aspects of the case, but not all. The district court noted that a government employer may not make employment decisions based on political allegiance except with respect to policymakers. Upon appeal, the U.S. Court of Appeals affirmed in part and reversed in part the federal district court’s ruling. Gov. Carney filed a petition with the U.S. Supreme Court, arguing the 3rd Circuit’s decision conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit.
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Illinois Supreme Court rules that police misconduct records cannot be destroyed, contrary to collective bargaining agreement

On June 18, 2020, the Illinois Supreme Court ruled 6-1 that the need to keep police misconduct records outweighs a section in the collective bargaining agreement between the city of Chicago and the Fraternal Order of Police (FOP).

At issue was Section 8.4 of the collective bargaining agreement, the Local Records Act, and the Freedom of Information Act. In 2011 and 2012, the FOP filed two grievances against the city of Chicago when the city refused to destroy complaint records that were more than five years old. The city denied both grievances and the FOP initiated arbitration.

Section 8.4 of the collective bargaining agreement reads, “All disciplinary investigation files, disciplinary history card entries, Independent Police Review Authority and Internal Affairs Division disciplinary records, and any other disciplinary record or summary of such record other than records related to Police Board cases, will be destroyed five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer.”

In his opinion, Justice Lloyd Karmeier wrote, “We find further support that Illinois public policy demands the oversight of the destruction and maintenance of government records through creation of a State Records Commission which, under the State Records Act, similarly requires state agencies to seek the approval of the State Records Commission prior to the destruction of state records.” As for the right to contract, Karmeier wrote, “While parties are generally free to make their own contracts, this court has long held that when a conflict exists between a contract provision and state law, as it clearly does in this case, state law prevails.”

In his dissent, Justice Thomas Kilbride wrote that the court’s decision that the collective bargaining agreement violated state law foreclosed the possibility of the city of Chicago and the FOP meeting in order to renegotiate the contract to ensure better compliance with state law. He wrote, “I believe the parties should be allowed to meet and negotiate in accordance with the arbitrator’s directive. This court could retain jurisdiction and remand for negotiations. After proceeding with negotiations, it would be warranted for this court to review the status of any agreement.”

In response to the decision, FOP President John Catanzara said, “It goes against every ounce of logic there is… the contractual rights that were in our collective bargaining agreement for the better part of four decades were set in stone.” He said he is instructing the union’s lawyers to see if there is a way to take the case to the U.S. Supreme Court.

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New Mexico Supreme Court rules in cases involving police uniforms and vehicle markings

On June 11, 2020, the New Mexico Supreme Court consolidated two cases and clarified requirements for marks of identification for police officers in aggravated fleeing cases.

New Mexico law considers aggravated fleeing a fourth-degree felony. The law describes aggravated fleeing as “a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle.”

The court ruled that a district court properly dismissed a charge against a man in San Juan County because the pursuing sheriff’s deputy was driving an SUV with lights behind the grille of the vehicle, but no decals, insignias, or lettering to indicate it was a law enforcement vehicle.

Justice Michael Vigil, who wrote the majority opinion, ruled that a police vehicle must be marked by “decals or other prominent and visible insignia identifying it as such.” Vigil also wrote, “Reiterating the definition of ‘mark’ as that which provides identification, we cannot conclude that lights or a siren are unique in identifying a police officer’s vehicle where emergency vehicles, tow trucks, and even civilian vehicles may be equipped with these same signaling devices.”

In a second case, the court agreed with the Court of Appeals that a man’s conviction should be reversed because the pursuing sheriff’s deputy was wearing civilian clothing rather than a uniform. The sheriff’s deputy was wearing a badge displayed on his shirt pocket and driving an unmarked SUV because he was working as an investigator for the sheriff’s office. Justice Vigil wrote that he must look at the “plain meaning” of the word uniform to rule in the case. He wrote, “while a police officer’s badge is a distinctive accessory that identifies a police officer, it is not, standing alone, a uniform.”

In a dissenting opinion, Chief Justice Judith K. Nakamura wrote that the ruling “has the pernicious effect of permitting some offenders who knowingly disobey officer commands and then flee in a manner that endangers the public to avoid criminal punishment simply because an officer’s uniform and/or vehicle were not sufficiently distinctive.”

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Justice Paul Thissen will run for a full term on the Minnesota Supreme Court

On May 19, 2020, Justice Paul Thissen announced that he had filed to run in the 2020 election for the Minnesota Supreme Court.

“I am excited to launch my campaign, even in these trying circumstances… My first years as a justice have confirmed how deeply our courts touch the lives of Minnesotans in the most fundamental ways,” Thissen said.

Thissen filed for the ballot by mail due to changes that the state made to its election procedures in response to the coronavirus pandemic. The filing period is open until 5 p.m. on June 2.

Judges of the Minnesota Supreme Court are chosen in nonpartisan elections to six-year terms. Interim vacancies are filled via gubernatorial appointment. Appointed judges serve until the next general election occurring more than one year after their appointment. They may then stand for election to a full term, and other candidates may file to run against them. Each current member of the state supreme court was initially appointed rather than elected.

Thissen was first appointed to the court in 2018 by Gov. Mark Dayton (D). He was appointed to fill the vacancy of Justice David Stras, who was appointed by President Donald Trump (R) to the Eighth U.S. Circuit Court of Appeals. Thissen was Gov. Dayton’s fifth appointment to the state supreme court.

The primary election for Justice Thissen’s seat on the state supreme court will take place on August 11, 2020. The general election for the seat will take place on November 3, 2020.

Before becoming a state supreme court justice, Thissen was a registered member of the Democratic-Farmer-Labor (DFL) Party and served in the state legislature for eight terms.

He served as Speaker of the House and Minority Leader. He ran for governor in 2010 but suspended his campaign when he was considered as an applicant to fill the vacancy on the state supreme court.

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Virginia Supreme Court to hear environmental law case on oyster fisheries

On May 18, 2020, the Virginia Supreme Court announced that it will hear a case between the City of Suffolk and a group of Virginia oyster fishermen. The original lawsuit was filed in November 2018 by C. Robert Johnson III, Lisa Lawson Johnson, Thomas Hazelwood, Johnson and Sons Seafood, and Hazelwood Oyster Farms, who sued the city and the Hampton Roads Sanitation District.

The plaintiffs alleged that the city and the sanitation department were polluting the Nansemond River by depositing sewage and allowing unwanted stormwater to enter the waterway. They argued that the government has taken their property by causing the river to become so polluted that they cannot harvest oysters from waterways in which they hold leases.

Circuit Court Justice L. Wayne Farmer took up the case on April 9, 2019. The lawsuit was dismissed in September 2019. The appeal took issue with Justice Farmer’s use of caselaw from 1919 which they argued is not in consonance with modern environmental regulation policy.

Joseph Waldo Lyle, who will be representing the oystermen before the state supreme court, remarked “The law says governments can pollute the waterways… It’s not 100 years ago. It is today, and the issue will always be, how can you put untreated raw sewage into a river that people fish, raise oysters, and swim, and boat in?” He said, “The Supreme Court of Virginia has said this case is important enough to determine whether or not the city’s right and they can discard waste and human sewage into the Nansemond River… It’s a very important, precedent-setting case.”

There are two ways that appeals cases can reach the Virginia Supreme Court. The most common is based on the argument in a dissenting opinion at the level of the court of appeals, and the least common is when a party successfully seeks discretionary review by the supreme court. The plaintiffs’ case sufficiently convinced the justices of the Virginia Supreme Court that the appeal merited discretionary review of the lower court, allowing the case to circumvent hearing in the appellate court.

Virginia is one of only two states in the country that uses legislative selection to appoint state supreme court justices. Virginia has used legislative selection to select its justices since 1776 when the state constitution was written. This year, there are no vacancies on the Virginia Supreme court, nor are there any retention elections for justices currently sitting on the court.

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Minnesota Gov Tim Walz (D) appoints Gordon Moore to state Supreme Court

On May 15, 2020 Gov. Tim Walz (D) announced District Court Justice Gordon Moore as his first appointment to the Minnesota Supreme Court. Justice David Lillehaug intends to resign in July 2020, and Justice Moore will take his seat on the bench.

Lillehaug has served on the Minnesota Supreme Court since 2013, and announced that he would retire due to a diagnosis of Parkinson’s disease. If Justice Lillehaug had not resigned from the court, he would face nonpartisan election to keep his seat on the bench.

There are seven justices on the Minnesota Supreme Court. Justices in Minnesota are selected through nonpartisan elections, but in the case of a vacancy the governor appoints a replacement. Each justice currently sitting on the Minnesota Supreme Court was initially placed on the court by the governor to fill a vacancy. Five of the seven justices have been appointed by Democratic governors, and two have been appointed by Republican governors.

When Gov. Walz announced Justice Moore’s appointment, said, “Supreme Court Justices decide some of the most pressing and significant questions of our time, and the feedback from Judge Moore’s peers was resounding: he is a brilliant jurist and a leader in his community. He has spent his career working hard for the people of Southern Minnesota, and he will bring a fair and respected voice to the Minnesota Supreme Court.”

In addition to his judicial experience, Justice Moore served as special assistant and assistant attorney general under Attorney General Skip Humphrey, a member of the Democratic-Farmer-Labor Party.

Although the appointment of Justice Moore means that Minnesotans will not vote in a nonpartisan election to fill Justice Lillehaug’s seat, Paul Thissen will be subject to retention through nonpartisan election on November 3, 2020.

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Van Pounds Challenges Incumbent Justice Thomas Balmer for Position 1 on the Oregon Supreme Court

Primaries are taking place for three positions on the Oregon Supreme Court on May 19, 2020. The Position 1 primary is the only contested primary, between current Justice Thomas Balmer and Van Pounds.

If a justice wins over fifty percent of the vote in the primary election, then he secures a seat on the supreme court. If neither candidate wins over fifty percent of the vote, then the two candidates will compete for a majority of the vote in the general election held on November 3, 2020

Justice Balmer has been on the state supreme court since 2001 when he was appointed by Governor John Kitzhaber (D). He was re-elected in 2002, 2008, and 2014 to serve full terms on the court. He was unopposed in each race. Balmer served as the chief justice from 2012-2018.

Van Pounds works in the Oregon Department of Consumer and Business Services. He ran for a seat on the Oregon Supreme Court in 2018, but was defeated by Justice Meagan Flynn. Flynn had been appointed by Governor Kate Brown (D) in 2017.

The Oregon Constitution establishes non-partisan election as the mode of selection for state court justices. In the event of vacancies, justices are appointed by the governor.

Although Covid-19 has altered the primary election dates of many states, Oregon will still hold its primary election on May 19, 2020. Oregon’s elections are conducted by mail, so there are no alterations to this year’s primary election schedule.

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Chair of Rhode Island Senate Judiciary Committee seeks appointment to she state Supreme Court

On April 28, 2020, State Senator Erin Lynch Prata (D-RI), applied to fill retiring Justice Gilbert Indeglia’s seat on the state supreme court.

Senator Lynch Prata is a former clerk to Supreme Court Associate Justice Maureen McKenna Goldberg. She stated that becoming a supreme court justice “has always been a dream,” and that the position on the state supreme court provides an opportunity for her to “give back to the community in a new way.”

Because she currently holds a political position, she sought an advisory opinion from the Rhode Island Ethics Commission to ensure that her application was not in conflict with the “revolving door” provision in the state code of ethics, which prohibits state legislators from applying to state agencies within a year of their departure from the legislature. In her letter to the ethics commission, she asked that the commission “provide me with guidance as to whether I am correct that the revolving door provision does not apply to a member of the General Assembly who seeks appointment by the Governor to the constitutional office of Supreme Court Justice.”

The code of ethics states that she may seek election to any constitutional office or “be appointed to a senior policy-making position on a general officer’s or general assembly’s staff, or appointment by the governor as a department director.” The code of ethics does specify judgeships in its enumeration of offices which may be sought within the one year time-frame of departing from the state legislature.

Lynch Prata argues a position on the state supreme court is a constitutional office as opposed to a position within a state agency. In an interview on April 28, she said, “The law is clear. If I didn’t think this was an appropriate thing to do, I wouldn’t be doing it.”



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