TagState courts

California governor appoints Jenkins as first nominee to state supreme court

California Gov. Gavin Newsom (D) appointed Martin Jenkins to the California Supreme Court on October 5, 2020. Pending confirmation by the state Commission on Judicial Appointments, Jenkins will succeed Justice Ming Chin, who retired on August 31, 2020. Jenkins is Newsom’s first nominee to the seven-member supreme court.

Under California law, state supreme court justices are recommended by the Commission on Judicial Nominee Evaluation to the governor. The governor then selects the new justice, who must be confirmed by the state Commission on Judicial Appointments.

Jenkins was an associate judge on the California First District Court of Appeal, Division Three, from 2008 to 2019. He was appointed by Gov. Arnold Schwarzenegger (R). He stepped down in 2019 after Gov. Newsom appointed Jenkins as judicial appointments secretary.

From 1997 to 2008, Jenkins was a judge on the U.S. District Court for the Northern District of California. President Bill Clinton (D) nominated Jenkins on July 24, 1997, to a seat vacated by Eugene Lynch. The U.S. Senate confirmed Jenkins on November 9, 1997, and he received commission on November 12. Jenkins served on the Northern District of California until his resignation on April 3, 2008.

Jenkins earned his A.A. from the City College of San Francisco in 1973, his B.A. from Santa Clara University (formerly the University of Santa Clara) in 1976, and his J.D. from the University of San Francisco School of Law in 1980.

A press release from Gov. Newsom’s office said Jenkins “would be the first openly gay California Supreme Court justice and only the third African American man ever to serve on the state’s highest court. It has been 29 years since an African American man has served on the California Supreme Court.”

The California Supreme Court is the state’s court of last resort. As of October 2020, four judges on the court were appointed by Democratic governors and two judges were appointed by Republican governors.

In 2020, there have been 21 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 20 vacancies were caused by retirements.

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Finalists for open Hawaii Supreme Court seat announced September 29, Gov. Ige to make selection by October 29

Hawaii’s judicial nominating commission published its list of four nominees for a state supreme court vacancy on September 29, 2020. The nominees are Judge Todd Eddins, David Forman, Judge Darolyn Lendio Heim, and Benjamin Lowenthal. Gov. David Ige (D) will appoint one of the four to the state supreme court with consent from the state Senate. Ige has 30 days to select his nominee after receiving the list.

The vacancy occurred when Justice Richard W. Pollack reached the mandatory retirement age of 70 years and retired on June 30, 2020. Pollack joined the court in 2012. His replacement will be the first nomination Gov. Ige makes to the five-member state supreme court. The most recent appointment to the court was made in 2014 by Ige’s predecessor, Gov. Neil Abercrombie (D).

In Hawaii, state supreme court justices are chosen through the assisted appointment method. Under this appointment method, Hawaii’s judicial nominating committee recommends four to six potential nominees to the governor, who chooses a nominee from the list. The governor’s nominee requires confirmation from the Hawaii State Senate. Justices serve 10-year terms. If they wish to serve additional terms, they must stand for retention before the state judicial nominating commission. 

Twenty-two states and the District of Columbia use the assisted appointment method for their courts of last resort. Seven states use gubernatorial or legislative appointments, 15 use nonpartisan elections, and six use partisan elections.

As of October 1, 2020, 21 state supreme court seats had been vacated in 2020, 10 vacancies had been filled, and 11 remained vacant.

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Assisted appointment (judicial selection)
Hawaii Supreme Court
Hawaii Judicial Selection Commission



One Minnesota Supreme Court seat up for nonpartisan election in November

The seat of Minnesota Supreme Court Justice Paul Thissen will be up for a nonpartisan election on November 3. Thissen is seeking re-election against Michelle L. MacDonald.

Despite the normal method of judicial selection being a nonpartisan election, every justice of the Minnesota Supreme Court was initially appointed by the governor to fill a vacancy. Five of the justices were appointed by Democratic governors while two were appointed by Republican governors.

Barry Anderson: appointed by Gov. Tim Pawlenty (R) in 2004

Margaret Chutich: appointed by Gov. Mark Dayton (D) in 2016

Lorie Gildea: appointed by Gov. Tim Pawlenty (R) in 2006

Natalie Hudson: appointed by Gov. Mark Dayton (D) in 2015

Gordon Moore: appointed by Gov. Tim Walz (D) in 2020

Anne K. McKeig: appointed by Gov. Mark Dayton (D) in 2016

Paul Thissen: appointed by Gov. Mark Dayton (D) in 2018

The justices on the Minnesota Supreme Court are elected in nonpartisan elections for six-year terms. The candidates compete in primaries in which the top two contestants advance to the general election. Whenever a vacancy occurs, the governor appoints a replacement who then remains in the seat until the next general election occurring at least one year after their appointment. At this time, the appointed justice must run for re-election as the incumbent in a nonpartisan election.

Across all types of state supreme court elections, incumbent justices running for re-election won 93% of the time from 2008-2019. Minnesota has not seen an incumbent supreme court justice lose an election during this same time frame.

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Former Ohio secretary of state challenges Justice Judith French for a seat on the Ohio Supreme Court 

Incumbent Judith French and Jennifer L. Brunner are running in the general election for Ohio Supreme Court on November 3, 2020.

Justice French was appointed to the Ohio Supreme Court by Gov. John Kasich (R). She assumed office on January 1, 2013. She advanced from the Republican primary for Ohio Supreme Court on April 28, 2020. Her previous political experience includes serving as chief legal council for Gov. Bob Taft (R) from 2002 through 2004 and as assistant attorney general to Betty Montgomery (R) from 1997 through 2002.

Brunner advanced from the Democratic primary for Ohio Supreme Court on April 28, 2020. She served as Ohio secretary of state from 2007 until 2011 and was elected to the 10th District Court of Appeals in 2014.

Two justices of the Ohio Supreme Court face re-election this year. In addition to Justice French, Justice Sharon L. Kennedy will stand for re-election. Justice Kennedy advanced from the Republican primary for Ohio Supreme Court on April 28, 2020.

Two justices currently on the Ohio Supreme Court have advanced from Democratic primaries to win the general election, and five justices on the Ohio Supreme Court have advanced from Republican primaries to win the general election. If both incumbents are defeated in the November general election, the court will have a majority of justices who have advanced from Democratic primaries.

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Two Nevada Supreme Court seats are up for nonpartisan election in November

The seats of Nevada Supreme Court Justices Mark Gibbons and Kris Pickering will be up for nonpartisan election on November 3, 2020. Pickering is seeking re-election while Gibbons is not. Pickering is unopposed for the November election to reclaim her seat. Ozzie Fumo and Douglas Herndon will face each other in an effort to fill Gibbons’ seat on the court.

Almost every justice on the court won their seat in a nonpartisan election. The lone exception is Justice Stiglich, who was appointed by Republican Governor Brian Sandoval in 2016.

Justices on the Nevada Supreme Court are elected in nonpartisan elections for six-year terms. Whenever a vacancy occurs, the governor appoints a replacement.

Across all types of state supreme court elections, incumbent justices running for re-election won 93% of the time from 2008-2019. Nevada has not seen an incumbent supreme court justice lose an election during this same time frame.

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Nevada Supreme Court
Kris Pickering
Mark Gibbons
Ozzie Fumo
Douglas Herndon
Incumbent win rates



Washington Supreme Court to review county sheriff recall petition on November 5

The Washington Supreme Court agreed to review a petition seeking to recall Jerry Hatcher from his position as Benton County Sheriff. Walla Walla County Superior Court Judge Scott Wolfram initially approved the recall petition on August 20, but Hatcher filed an appeal against that decision with the state supreme court. Hatcher’s appeal will be considered by the court on November 5, 2020.
 
The Benton County Sheriff’s Guild is leading the recall effort. They said Hatcher had performed his duties in an improper manner, committed illegal acts, and violated his oath of office. Hatcher said the guild was refusing to hold deputies accountable for their actions. He said the guild would not let him take disciplinary action against employees who committed wrongdoing.
 
If the appeal is rejected, recall supporters will be able to circulate petitions. Recall supporters must collect 14,000 signatures to get the recall on the ballot.
 
In 2019, Ballotpedia covered a total of 151 recall efforts against 230 elected officials. Of the 66 officials whose recalls made it to the ballot, 34 were recalled for a rate of 52%. That was lower than the 63% rate and 57% rate for 2018 and 2017 recalls, respectively.

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Recall campaigns in Washington
Political recall efforts, 2020
County official recalls



Florida governor appoints Grosshans to state supreme court

Gov. Ron DeSantis (R) appointed Jamie Grosshans to the Florida Supreme Court on September 14, 2020. She was appointed to succeed Justice Robert Luck, who was elevated to the U.S. Court of Appeals for the 11th Circuit in November 2019. Grosshans will join two other DeSantis nominees on the seven-member court.

The governor had originally appointed Renatha Francis to the position on May 26, but a five-member Florida Supreme Court ruled against Francis’ appointment and ordered the governor to select a different nominee. State Rep. Geraldine Thompson (D-44) filed a lawsuit challenging Francis’ appointment in July 2020.

Grosshans is a judge on the Florida 5th District Court of Appeal. She was appointed to that court by Gov. Rick Scott (R) in 2018. She was a judge for the Orange County Court in Florida from 2017 to 2018. Before that, Grosshans was a solo practitioner for Plant Street Law. She also previously worked as an assistant state attorney for Florida’s Ninth Judicial Circuit. She earned a bachelor’s degree from Thomas Edison State College and a J.D., cum laude, from the University of Mississippi School of Law.

Florida Supreme Court justices are chosen through a process of assisted appointment. A judicial nominating commission screens potential judicial candidates and submits a list of nominees to the governor. The governor must appoint a judge from this list. Newly appointed judges serve for at least one year, after which they appear in a yes-no retention election held during the next general election. If retained, judges serve six-year terms.

The Florida Supreme Court is the state’s court of last resort. As of September 2020, all six of the sitting justices were appointed by a Republican governor.

In 2019, there were 22 supreme court vacancies across 14 of the 29 states where replacement justices are appointed instead of elected. Retirements caused 14 of the vacancies. In 2020, there have been 20 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected.

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Death of Massachusetts chief justice creates second vacancy on state supreme court

Massachusetts Supreme Judicial Court Chief Justice Ralph D. Gants died while in office on September 14, 2020, causing a second vacancy in the state’s court of last resort. The other vacancy will occur on December 1, 2020, when Supreme Judicial Court Justice Barbara Lenk is scheduled to retire from the court, one day prior to reaching the court’s mandatory retirement age of 70 years old.

Chief Justice Gants was appointed to the Massachusetts Supreme Judicial Court by Governor Deval Patrick (D) in 2008 to replace retired Justice John Greaney. Gants assumed office on January 29, 2009. On April 17, 2014, Justice Gants was nominated by Gov. Patrick to serve as the chief justice of the court, effective following Chief Justice Roderick Ireland’s retirement on July 25, 2014. Gants’ term was scheduled to expire in 2024.

Chief Justice Gants earned a bachelor’s degree from Harvard College in 1976. He earned a diploma in criminology at Cambridge University in England. He earned a J.D. from Harvard Law School in 1980. Gants served as a note editor with the Harvard Law Review.

The seven justices of the Massachusetts Supreme Judicial Court are appointed by the governor and approved by the governor’s council. The Governor’s Council, also referred to as the Executive Council, is a governmental body that is constitutionally authorized to approve judicial appointments. The council consists of eight members who are elected every two years from each of the eight council districts. Massachusetts Supreme Judicial Court justices hold tenured appointments until they reach 70 years old, the age of mandatory retirement.

Founded in 1692, the Massachusetts Supreme Judicial Court is the state’s court of last resort and has seven judgeships. The court is the oldest continuously functioning appellate court in the Western Hemisphere. Originally called the Superior Court of Judicature, it was established in 1692. The court was renamed the Massachusetts Supreme Judicial Court by the Massachusetts Constitution of 1780.

Following Gants’ death, the Massachusetts Supreme Judicial Court included the following members:
• Barbara Lenk – Appointed by Gov. Deval Patrick (D) in 2011
• Frank M. Gaziano – Appointed by Gov. Charlie Baker (R) in 2016
• David A. Lowy – Appointed by Gov. Baker (R) in 2016
• Kimberly S. Budd – Appointed by Gov. Baker (R) in 2016
• Elspeth Cypher – Appointed by Gov. Baker (R) in 2017

• Scott Kafker – Appointed by Gov. Baker (R) in 2017

In 2020, there have been 21 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 20 vacancies were caused by retirements. Twelve vacancies are in states where a Democratic governor appoints the replacement. Eight are in states where a Republican governor appoints the replacement. One vacancy is in a state where the state supreme court votes to appoint the replacement.

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Arizona judge declines to rule on constitutional challenge to agency adjudication process

Maricopa County Superior Court Judge Douglas Gerlach on September 9 upheld a decision by then-Arizona Department of Child Safety (DCS) Director Gregory McKay in a case challenging the constitutionality of the procedural due process protections available to individuals during the agency’s adjudication of child abuse allegations.

McKay placed Phillip B. (the only name provided) on the child abuse registry despite a finding by an administrative law judge (ALJ) that no probable cause existed to do so. Arizona law permits the DCS director to substitute his own judgment for that of the ALJ.

Mr. B. challenged the low standard of proof (probable cause) in the agency’s review process; the lack of cross-examination of witnesses; and the unilateral power of the DCS director to reverse an ALJ’s findings. The DCS director, according to the challenge, is not an impartial adjudicator because he exercises both investigatory and adjudicatory functions.

Gerlach declined to rule on the constitutional challenges raised by Mr. B. for factual reasons. He wrote in part that the bias challenge “flies in the face of well-settled law that ‘the combining of investigatory and adjudicatory functions [in a single agency] does not violate due process’ unless actual bias is shown.”

Mr. B. plans to appeal the decision.

“The court decided not to review the myriad due-process and separation-of-powers problems for factual reasons,” said attorney Aid Dynar of the New Civil Liberties Alliance in a statement. “At the same time, the court decided not to take a look at the facts to avoid the serious legal problems with Arizona’s administrative law. The court’s double-dodge offers an enticing recipe for appeal, and that is precisely what we plan to do.”

Read more about the case in the September 2019 edition of Checks and Balances: The Checks and Balances Letter: September 2019

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Three Maryland Court of Appeals justices seek retention in November

Maryland Court of Appeals Justices Brynja McDivitt Booth, Jonathan Biran, and Mary Ellen Barbera are all seeking retention on November 3, 2020. Booth and Biran were appointed by Gov. Larry Hogan (R) while Barbera was appointed by Gov. Martin O’Malley (D).

Currently, three of the seven justices on the court were appointed by a Democratic governor while four were appointed by a Republican governor.

The governor appoints the seven justices of the appellate court with the assistance of a judicial nominating commission. The Maryland Appellate Courts Judicial Nominating Commission is made up of 17 members, all appointed by the governor. Five of these members are first nominated by the Maryland State Bar Association. After the governor appoints a justice, the Maryland Senate must then confirm the appointment.

New justices must face a retention election during the next general election after they serve at least one year on the bench. Justices then stand for retention every ten years with a mandatory retirement age of 70. Since 2008, justices facing retention elections have won 98% of the time. In Maryland, there has not been a single justice that lost retention during this same time frame.

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